they abused that power also of siting during their pleasure and so made a forfeiture thereof if it could have been lawfully granted unto them Thus contrary to the intention of both King and People and contrary to the reasons on which their rights and liberties are grounded and contrary to the fundamental Laws of the Kingdom and contrary to the office and duty of those elected members and to the nature and quality of all delegated power and authority Procurators Deputies or Representatives became masters of all and perpetual Dictators and did work all their iniquity by a Law There is another way of fraud used to circumvent Princes which is to observe an opportunity offered them by occasion of some necessities and straits into which Princes often fall Many learned men affirme that all bindings and tyes of Kings although by vertue of a Law upon the onely advantage taken of their necessities and straits in their affairs maketh the breach of that Law justifiable inasmuch as any constrained assent is never reputed a Royal assent neither a durable assent Amongst many examples there is one of our glorious King Edward the third in or about the fifteenth year of his reign who went roundly to worke in such case and voided certain things formerly granted by himselfe in Parliament alleadging that those things by him granted were contrary to his oath and the rights of his Crown which he granted not of his free will but that he dissembled at that time to avoid those eminent dangers which would have ensued upon his denial Yet may we not approve Machiavils doctrine Cap. 18. of his Prince that Princes may without dishonour break their faith when the observation thereof turneth against themselves or the cause which urged them to promise doth cease albeit mans assent or denyal is feeble and defective when he is surrounded with inextricable difficulties and oppressed with violent perturbations and then to take an advantage thereof is neither fair nor firm for when strong and violent perturbations and affections have possessed the mind all Laws allow them for just causes of qualifications of offences and mitigation of punishment in most cases Sereca Non est facile inter magna mala non desipere quid mirum est animos inter dolorem metum oberrasse They who seeke to hold Princes or other men to the strict observation of promises drawn by the advantage taken of their necessities and distresse can never have any sure hold of such promises neither of their affections It will never dye in the Romans hearts Livius lib. 9. but will alwayes be fresh in memory whatsoever shame the yielding unto their present necessity shall brand them with Princes have or at least they take unto themselves a larger scope and latitude then other men can or may when as the freedome of their will is straightned by any coaction or necessity and upon reason of State do they proceed more then upon rules of Law or axioms of Philosophie Plin. Paneg. L 10. F. de condit Instit L. 79. F. de Jure dot l. 63. F. de condit demonst and may sometimes do that justifiably which private men may not non potest non nimium esse privatis quod Principi satis est Howsoever Princes shall not be tyed when other men are freed from those stipulations contracts and conditions quae laedunt pietatem existimationem verecundiam eorum generaliter contra bonos more 's sunt quia nec talia facere posse credendum est Id possumus quod jure possumus Paria sunt impossibilia turpia A Prince when he is injuried or damnified may as the Schoolmen say in his defence or in vindication of his reputation which doth much support his authority act in a different manner and proceed to a higher measure and degree then private men for the injuries done unto him and the damages sustained by him much differ from those of other mens both in quality and extent Vt gravius peccatur in personam magis Deo conjunctam Aquinas sive ratio officii sive virtutis spectetur sic quantò aliqua injuria in plures redundat tantò gravior est ut est ea quae fit in Regem qui gerit Personam totius multitudinis sic redundat in injuriam totius But Princes as well as others are obliged to the observation of their promises and contracts by natural equity Seneca L. 1. l. 7. F. de Pactis Baldus Pacta conventa naturali aequitate rata sunt quae non sunt dolo malo facta nec contra leges Faith is expected more fully to be performed by Princes Exuberantior fides ab iis requiritur variatio inconstantia in Principe maximè reprobatur debet esse immobilis sicut lapis angularis sicut Polus in Calo. And therefore it is most dishonourable in a Prince aliquem speciem juris fraudi imponere aut fraudes captiunculas miscere Livius Lipsius Cicero Sleiden 19. Nat. Comes 3. Guicciard 5. Gentil de jure belli Lib. 2. c. 4. l. 2. Cod de legibus syllabas apices aucupari quod leguleorum est for which cavillations and carping at words two glorious Princes Ferdinand of Spain and Charles the fifth his Grand-son did suffer in their reputation and so did Lewis the twelfth King of France quod non Principibus sed leguleis dignas verborum ac pactorum interpretationes afferrent notam infamiae is incurrit qui ed astutè interpretari voluerit The Emperour Justinian gave amongst his Laws two good rules for Princes the one concerning the observation of their own contracts Imperialibus contractibus vim legum obtinentibus the other for observing their Laws digna vox est Majestatis regnantis Principem profiteri se legibus alligatum esse de authoritate juris pendet nostra authoritas L. 4. Cod. de legib For a Prince by breaking his faith and not governing his People according to his Lawes draweth upon himself hatred or contempt or both either of them are most effectual means to rend in funder the Pillars of his authority and the sinnews of his Government and when either of these have possessed the minds of men Florus novae libertatis avidi cupiditate libertatis incensi they are seldome removed by any art or industry and then all his actions good or bad shall have one and the same interpretation Tacitus Lib 3. c. 5. discur upon Livie Inviso semel Imperio seu benè seu malè facta premunt Machiavil doth boldly tell Princes that the same hour they begin to lose their State and Authority when they begin to violate and undervalue the antient institutions Laws and Customes under which they and their ancestors have lived long and happily Livius lib. 2. Imperii omnis vis in consensu obedientium est All Lawes Humane and Divine are against violent acquisitions except in a just war how just soever the cause be For
a long time the King that there was great danger they would have raised an Aristocracy or several petty Principalities so lofty was their carriage towards their King which in time would have strangled the Monarchy and all under the pretence of the publick good which drew on that long and destructive war called the Barons war and made it the more plausible and popular After these combustions ended and the King the Lords and people were reduced to reason and moderation which often was wanting on both sides then the Statutes made in the time of King Edward the First and Edward the second had these words Statutes made by the King in Parliament at the request and petition of the Commenalty with the assent of the Prelates and Pears And so in the Fifth year of Edward the Third at the instance and special request of the Commons with the assent of the Prelates and Peers we have ordained and established and so in the succeeding raign of Richard the Second and in the first of Henry the Fourth Thus did the force and efficacy of our Lawes proceed from the Kings Legislative power acting by and with the concurrence of the three Estates in Parliament contributing their assistance according to their respective duties and the trust reposed on them This concurrence doth serve excellently for the direction regulation and in some respect for the qualification not for the diminution but for the support of the Kings power and rights The absoluteness and generality of this Regal power being also in many cases often restrained in the administration of Justice in the inferiour Courts of Justice by the Common Law of England and by the Lawes and customes of other Kingdomes And therefore the assistance and concurrence of all the Estates in Parliament cannot amount unto the raising of any coequality or competition of power the influence of the Soveraign power is that which giveth life to the making and to the execution of all Lawes both Houses of Parliament acting according to their duties and not exceeding their bounds the rights and prerogative of the King is neither restrained nor obscured but guided strengthned and carried with greater vigour and Majesty for his and the Peoples most good and security If our Kings had any co-partners in the Legislative power or were less in Parliament then when they were out our Judges have been much out and deceived him and others in affirming oftentimes to the Kings that in no time they were so high in their Royal estate as when they sate in Parliament The Canon-Lawyers say the Pope is greater when he sitteth in a General Council in respect of the amplitude of knowledge and the spirit of discerning After the Romans had transferred all their Supream power to their Emperours yet did the Senate afterwards make divers Lawes called Senatus consulta which were often concomitant or subsequent to the Imperial Edicts yet this was never held to be a conferring or communicating of any part of the Legislative Imperial power no otherwise the Kings of France do grant to the Parliament of Paris when their arrests concurr with the Kings Edicts which are there usually ratified Cujacius Pet. Faber Semest lib. 1. cap. vult Optimi Principes non dabant ullam constitutionem sine authoritate sententia Juris-consultorum Edicta Principum Romanorum sic Regum Galliae plerumque subsequebantur Senatus Consulta Quod Principi placuit legis habet vigorem leges condere soli Imperatori concessum est legis interpretatio solo digna Imperio est Imperator solus conditor Interpres Legum est Institut Jura nat gens Lust Cod. de legibus Tit. F. de origine Juris Lib. Feud constitut Lethaeri Fred. Imperator licet Augustus Caesar constituit viros prudentes ad jus interpretandum ut major juris authoritas haberetur The Emperours since have made their Lawes hortatu consilio Archiepiscoporum Episcoporum Ducum Marchionum Comitum Palatinorum caeterorumque Nobilium Judicum yet this was never holden to be a communicating of their legislative power Long time in the French Monarchy Lawes and Edicts were made by the King per suum magnum Concilium as in England and so were causes Civil Criminal and Fiscal determined and judged by our Kings or his Council or by his delegated poer to others before the Courts were established at Westminster as appeareth by our Histories and Records The three Estates in France and Spain did never in the former times when they were most in use and power challenge any part of the legislative power neither did their Historians and Lawyers ever grant it to be in them for ought appeareth Bodin doth acknowledge that in England the excellent institution and use of Parliaments hath longest continued De. Repub. and saith that legum rogatio probatio non arguit Imperii majestatem licet autoritatis speciem Ordines Angliae autoritatis quaendam habeant jura Majestatis summum Imperium est in Principe And so a learned Hollander Grov de Jure belli lib. 1. C. 3. no slatterer of Monarchy saith they are greatly deceived qui existimant cùm Reges acta quaedam sua nolunt rata esse nisi à Senatu vel alio caetu aliquo probentur L. 8. F. de Constitutionib L 1. Cod. de legib partitionem fieri potestatis The supream Senate is as the Emperour in the Golden Bull calleth the Princes Electors partem corporissui columnas latera solidacque Imperii Bases jus dandi suffragii in Comitiis Imperii Germanici non trahit secum majestatis communicationem cum majest as indivisibilis sit nec Electoribus Principibus aut Statibus Imperii communicari poterit Tamen nihil majestati detrahitur si in partem solicitudinis Imperatoris invocentur exemplo veterum Imperatorum Romanorum qui et si habuerint summam potestatem ut quodcunque Imperator Edicto statuit legis habebat vigorem nihil tamen magni ponderis sine consilio consensu Senatus expediebant * Arumns ad aur bul non obstat quod dicitur in L. 1. F. de constitutionibus Quod Principi placuit legis habet vigorem quia sequitur in fine legis non quiequid de voluntate presumptum est sed qùod concillo magistratum suerum Rege auâ—â—ritatem praestante habita super hoc deliberatione tractatu recle fuerit definitum Bracton Fleta L. 8. Cod de Legibus Bartolus ali L. 1. F. de legibus Moreover long before the Empire was established in Germanie when the Roman Emperours granted unto diverse Princes and States of the Empire that without them and that form by him prescribed lawes should not be made or held effectual nisi supradictà formà observatà ita ut universorum consensus nostrae serenitatis autoritate firmetur c. It was never holden by the interpreters of the lawes that the Emperours did or could by his grants
entrance they presently enter into a breach of two principall Pillars and rights of Empire ever accounted inter jura summi Imperii the one is the Usurpation of the power of raising Money upon the people the other is the Arming and drawing together of Soldiers For the first the law porvideth ut vectigalia nova Tit. Cod. nova vectig lib. 10. F de Publicanis Deciss Rotae Rom. L. ult F. de vi pub nullo decreto Civitatum institui possint nec ultra antequam consuetudinem inconsulto principe nec sufficit quod agatur de communi utilitate seu necessitate civium nisi ob damnum inevitabile evitandum Qui nova vectigalia exercent tenemur lege Julia de vi publica quia vis Reipublicae datur Force is thereby offered to the Common-wealth as much as by raising and arming of Soldiers Tit. Cod. ut arm usus Lib. 17. Cod. de re milit the other apparent usurpation of Regal Authority Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur This is a universal Law at this day in all Kingdomes and Common-wealths and before this Law the ancient Law of the Romans made him guilty of high treason L. 1. L. 2 F. ad leg Juâ—iam Majest qui injussu Reipublicae bellum gesserit delectúmve militarem habuerit exercitum comparaverit vel quò homines armati cum telis in urbe sint and with this agreeth the common saying nemo tractet ferrum nisi qui sceptrum the sword and the sceptre go together Ordo naturalis mortalium paci accommodatus hoc poscit Augustinus ut suscipiendi belli authoritas atque consilium penès Principem sit Our Laws and statutes concurre herein and especially in prohibiting the arming of men without the Kings authority and of this one proofe amongst many may serve for all In the seventh year of Edward the first the Parliament did fully acknowledg that in them was no power to deale in matters of armes the words of the Statute are that in all Parliaments men shall come without force and armour well and peaceably to the honour of us and of the Peace of us and our Realm and that all the Prelates Earles Barons and Communalty assembled have said that to us it belongeth and our part it is by our Royal Segniory strictly to defend wearing of armour and all other force against our Peace at all times when it pleaseth us and to punish those which do the contrary according to our Laws and usages of our Realm The Subjects are bound to go with the King to the wars at home and abroad Cook Postnaâ—â— and this sheweth natural allegiance not to be local as doth appear by the Common Law and by divers Statutes declarative of the Common Law Cook upon Littleton It is the Kings peculiar right to call all his Subjects to armes especially all those who hold by knights service and to carry them with him when he maketh a voyage Royal or send a sufficient man in their place or pay Escuage And therefore there can be found no Law or reason to justifie the imaginary right of the People or Parliament in the Militia Salutem Reip. tueri nulli magis convenire quam Caesari Deoff Praefectivigil F. Salust nec alium ei rei sufficere quà m Caesarem qui cohortes militares opportunis locis constituit eam esse conditionem Imperandi ut non aliter ratio constet quam si uni reddatur As there are somethings which a King cannot get from his subjects but being either wrested from them or imposed upon them do destroy the essential pars of natural and just liberty and doth render them rather slaves then free-men so are there also some essential rights of the Crown which the Subjects cannot obtaine from their Soveraign by any grant or prescription without destroying the essential and individual rights of Monarchie A King cannot grant by his Charter neither lose by prescription as all the Interpreters of the Laws agree those rights called the flowers of his Crown which are Regalia suprema summa jura Imperii regno tuendo servientia inherent to his Royal Function and Politick Capacity and serve for the strength and support thereof And so by the Canon Law Licet generalis sit tibi concessa legatio Decretal de officio Legati cap. 4. ad ea tamen sine speciali mandato non debuisti manus extendere quae in signum privilegii singularis sunt tantum summo pontifici reservata Illa jura non sunt in commercio quae propriè sunt Dominii Diadematis Domanii Regii quae sunt de bonis juribus reservatis in signum subjectionis recognitio supremi universalis Imperii seu potestatis for by such grant or release would ensue as the Lawyers say deformationem demembrationem turbationem publici Status imperii And such are the rights of making war and Peace of having the last appeale unto him or to his great Councel and supream Court and of making leagues and of dispensing with penal Laws granting pardons and such like For the exercise of his just rights and the administration of his Regal office is committed unto him by God without any permission to suffer the destruction of them or any of them Themistocles declared to the Athenians and Cato to the Romans that man could not usurpe or prescribe unto any thing which was due unto the divine Majesty neither could private men do the like unto the Common-wealth L. 34. F. de contrah empt L 6. de contrah emp. F. L 9. l. 45. de usu cap. L. 7. tit 37. 38. Cod. The alienation of those things are by the Law forbidden quae natura jus gentium vel mores civitatis commercio exuerunt ut sunt sacra religiosa aut quorum commercium non sit praescriptio longae possessionis non concedi in rebus sanctis sacris vel publicis Populi Romani nec in rebus Fiscalibus vel Dominicis quae sunt propriae principis In the treaty between the King of Spains Commissioners and the Hollanders in the year 1607 it was often urged and not gainsaid for ought appeareth that the supream rights of Majesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects Relationes Baudii Meursti neither lost by any prescription or lapse of time And yet may a King passe by his grant and lose by prescription some things of profit and of his revenue and other inferiour rights and Regalities according to the Laws and customes of several Kingdoms And in some cases prescription doth ly in all Kingdoms against the King or else controversies would remain immortal So likewise grants alienations and contracts made by the King for just causes and in legal form are and ought to continue valid lest many inconveniences and much injustice should follow and the