acts if force of fraud used to procure the absence of one of the members may make all their acts invalid C 28. de Elect. plus nocet unius contemptus quam contradictio multorum according to the rule in the Canon Law which sayeth also si eos vocatos non fuisse constiterit sed contemptus infirmanda erit penitus electio taliter celebrata Stew Chron. Upon which Gardner Bishop of Winchester his assertion seemeth to be grounded who being prisoner in the Tower wrote to the Lords in Palliament claiming his priviledge of Parliament and said that if the Rulers in a General Councel let any mans repair thither who of right ought to be there whatsoever is there concluded is by a universal Law taken to be of no force by excluding one member wrongfully that should furnish the body The body ought to be entire and compleat The Interpreters of the Civil and Canon Law say when we name a People we are understood properly to intend the whole or at the least the major part and when we mention the Chapter Capitulum we are presumed to intend the whole body or number appellatione rei venit res integra qui de quantitate lequitur de toto loqui censetur quando natura rei subjecta materia hoc exigit vel alioqui actus esset elusorius But seeing all the members of a Parliament or of any great Assemby or Corporation cannot come alwayes together therefore by a universall Law or custome the presence or concurrence of the major part of the whole or of those who are present most commonly doth prevail L. 3. 4. F. de Decurionibus L. 3. F. de Decretis qui à duabus partibus Cardinelium electus fit Romanus Pontifex habetur In aliis electionibus quod fit à majori saniori parte Capituli valet consueta forma servata De electione cap. 6. Decretal By the civil Law there must be in their Senate Councel house and Municipal Courts two third parts of the whole number present for pasting any act of importance duabus partibus adhibitis Totius quia illa decreta non valent quae non legitimo numero decurionum coacto facta sunt But those acts had the force of Lawes to binde all men which were examined ab omnibus proceribus in gratiosissimo Coetu L. 8. Cod. de legibus collectis omnibus recitantur cumomnes consenserint tunc demùm in sacro nostri numinis Consistorio recitari ut universorum consensus nostrae seremtatis authoritate firmetur This was the course observed in makeing their Lawes for if men when they choose arbitrators or Law-makers when they constitute Judges L. si in tres L. item si unus F. de recept arbitâ—is L. Pluribus F de Pro. curatoribus L. si plutes l. cum plures F de Administ Tut. L. 37. F. dere judic or Princes when they grant a delegated power in private mens causes are never supposed to approve of that which one man or the fewer number of them do order or decroe unlesse somewhat appear to the contrary but onely of that which is agreed by the major part all beeing present at the deliberation and debate quia tunc judicare intelliguntur cum omnes adsint licet omnes non consentiunt There is then much greater reason for the presence of the major part of the whole number in the supream Courts Councils and Parliaments ubi de summà Reipublicae agitur And so may we presume was the intention of all Law-givers and founders of Common-wealths although not expressed unlesse necessity in some special cases and accidents doth otherwise require In such accidents the Law sayeth L. 45. Cod de Decurionibus paucorum absentia sive necessaria sive fortuita non debilitat quod a majori parte ordinis salubritèr fuit constitutum But in Parliaments there is most reason for the presence of all the members for many respects and cheifely because all every County City and Borough who are to send their own Deputies Representatives be not without being heard bound by the votes of others in all things as well concerning their own particular as the Common Interest who are peradventure ignorant and regardless of their condition and men whom they never knew nor to their election gave their consent For in other Assemblies Councels and Courts there is not as in Parliament of all Persons states and degrees either personally or virtually by representation and intendment of Law the presence and as it ought to be to make a just and compleat Parliament according to the ancient and continued Laws and customes of this Realm and of other Kingdomes And therefore the excluding of the Bishops and in them the whole Clergy ever reputed one of the three estates in all Kingdomes and called Brachium Ecclesiasticum seu spirituale must needs be injust and prejudicious to the Church and common-wealth and make a maimed and dismembred Parliament the Clergy being barred from having their own Representatives and Deputies in Parliament whereby the Common-wealth is deprived of their advice and assistance which may be and oftentimes hath been found to be of excellent use in respect of their great learning and judgment wherewith many of them in all times have been amply adorned and many of them of great fame for their piety and martyrdome and have as appeareth in histories shewed their love to their Countrey by many acts and testimonies and in some times to their own destruction for opposing the most powerful persons when the greatest men of the Laity who for the most part are of much inferiour abilities have shrunk off and been silent I cannot therefore perceive how we may approve of the opinion of those who hold that good Acts of Parliament may be made excluso Clero and take the example of Edward the first for a Law who because the Clergy would not still supply him with mony after they had given him many great summs he put them out of his protection and then called a Parliament without admitting them This being the case it is an ill argument à tali facto ad jus faciendi As if we should say the King and the Peers can hold a just Parliament and make Laws and Levies of monies without the Commons because long time after the Norman Conquest Laws were made without them which are still reputed good Laws In England as well as in other parts of Christendome in the time of the Saxons Bishops were called to their Parliaments and after the Norman Conquest they were called as other were who held by a Barony Their tenure as well as their function did warrant it In the Constitutions of Clarington in the time of Henry the second it is said according to the Canon Law Chronic. Gervasti alii that Bishops as other Barons who hold of the King in Capite debent interesse Judiciis Curiae Regis quousque pervenitur ad mortem
tua res agitur licet aedes demoliri vicini ne ad nos incendium veniat The Romans would not suffer an increase of power by iniquity L. 49. F. ad leg Aquil. l. 3. F. de Incendio l. 7. F. quod vi aut clam Salust Cicero Majestatis erat Populi Romani non pati cujusquam regnum per scelus crescere It was none of the least branches of the Romans glory who were the mirrour of magnanimity that their Common-wealth might truely be reputed Patrocinium orbis terrae potiùs quam Imperium Regum Nationum portus perfugium But yet the Romans were seldome losers by protecting and ayding others for by that occasion they got much of their dominions Salust Cicero Populum Romanum sociis defendendis terrarum omnium potitum fuisse God gave them as some say universal dominion for their excellent vertues and laws others say it was given them to scourge the tyranny and vices which did raign amongst other nations and to end the discord and contentions amongst them From the discord of Citizens Strangers take their opportunity against them Livius The Carthaginians first passed into Cicily to take part with one side in a Civil war but they endeavoured to make a prey of both For sometimes neighbour Princes have as in the fable plaid the part of the Kite between the Mouse and the Frog and ended their strife by gaining that and more then that for which they did contend as the Turk did in Hungarie when they called for his assistance And thus other Princes have dealt with the Italians at war amongst themselves until strangers got all or spoiled all they left behind them Other Princes when their Neighbours have been in Civil war have endeavoured to break the course thereof and joyned with one side lest when both were weakned the whole should fall into the hand of some potent neighbour or enemy of theirs The Roman General Quintius offered his assistance to the States of Greece Livius lib. 34. to destroy Nabis the Usurper of Sparta lest the contagion thereof should spread farther and take hold of the other Common-wealths and Cities of Greece CHAP. XVII Of the King and of his power in Parliament THese pretended Patrons of Popular liberty or rather of licentiousness and confusion can find no way so meet in their conceit for maintaining their Plots as parity in Ecclesiastical Government which being once established in the Church by the example thereof King James book to his Son the Politick and civil State should be drawn to the like And therefore they will have an actual power to be joyntly in the People with their Soveraign in making of Lawes which they call their Legislative power in Parliament so as they would leave unto the King little or no power with his negative voice and would weaken all his rights in Parliament but especially his right of dissolving Parliaments They would make him inferiour to the Roman Tribunes of the people Livius Plutarch for any one of them by his negative voice could cross that which his Colleagues proposed to the People and any two of them could stop all proceedings and dissolve all the solemn assemblies of the people called by the authority of the other Tribunes But say what they can they cannot find his Legislative power to be any other thing then the Regal power and a principal part and branch thereof although in many cases it be very justly restrained in the use and exercise thereof to the Kings sitting in his Parliament his Supream Court and Councel with all the estates of the Kingdome but this is not in respect of any power or original and habitual right inherent in the people The Commons are called by their Writ ad faciendum consentiendum his quae de Communi consilio Regni nostri ordinari contigerit as were the people by the ancient Canons of the Church called to the election of their Pastors and Prelates Distinct. 63. c. 1. c. 12. c. 8. c. 36. non quod debent imeresse ut eligentes sed ut consentientes nullus invitis pepulis non petentibus ordinetur ne Lpiscopum non optatum aut contemnant aut odiant Is eligatur qui à Clericis electus à Plebe expetitus fuerit nec alitèr ascribitur Matthias Apostolorum Collegio Acts 1.15 6.2 Cpyrianus nec aliter septem Diaconi creantur quà m Populo vidente approbante Haec exempla ostendunt sacerdotis ordinationem non nisi sub Populi assistentis conscientia fieri oportere And thus by the same reason and equity it is that Lawes which bind the estates and lives of men and are for the common good of all and singular Persons should be made in the great Council and supream Court of the Kingdome by the advice and assent of all the Estates of the Kingdome By which course the just rights and liberties of the people are preserved and taxes and levies of money on the people imposed onely by Parliamentary authority as they ought to be For thus the People are induced and ingaged to a willing observation of those lawes and submission unto those impositions for the making and raising whereof they have given their consent It was said long since by a wise man that in ancient time and to the honour of England Commines it was best governed of any Kingdome the People least oppressed the Kings living upon their own revenues subsidies granted but onely for war with France or Scotland and the war undertaken by the advice of Parliament by which means the King was the stronger and better served and he addeth also that Princes cannot levy on their Subjects without their consent If we look upon our most ancient Statutes or rather Charters of our Kings and the form and stile of them we shall find no Character of any legislative power in any but in the King neither so much as the Peoples concurrence or consent in any Parliamentary way It appeareth in our ancient Histories Mat. Paris Hoveden alii that during the Raign of diverse Kings after the Norman Conquest the Kings when they called their great Councel or Parliament the summons went only to the Prelates Earls and Barons and in some of those Histories there is mention of calling the Commonalty and diverse sage and wise men In Kings Johns time the first summons upon record appeareth to the Prelates and Peers S. Rob. Cotons collections and something may be gathered although darkly of the admittance of the Commons Before that time every man by his tenure held himselfe to his great Lords will in whose assent his dependent Tenents was included These were long after the Conquest taxed and assessed by the consent of their Lords of whom they held who enjoyed great Regalities in their Signiorîes and were to their vassalls totidem Tyranni saith Mat. Paris These great Lords did so curb and restrain
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
Armies Parliament under which power they still afterwards did sit and act leaving the Parliament without any Lawful adjournment sine die sine capite sine corpore This Law for continuation of the Parliament so directly contrary to the institution and essence of Parliaments and the undoubted right of Kings to call and dissolve Parliaments was another new and strange Law Lex nova inaudita as was said of the Roman Law Agraria from which great seditions took their first rise and from those seditions Civil wars which never were fully ended until that Common-wealth was utterly destroyed by the usurpation of Julius Caesar Salust Paterculus It was a Law quae summa miscuit imis a Law unde jus vi obrutum erat For the iniquity of our two Statutes before mentioned they may fitly in many respects be compared to this Law Agraria which Tiberius Gracchus the Tribune of the People preferred to flatter the People to continue himselfe in his office that he might be the more safe from the Nobility and rich men his enemies the better bring his designes to effect This Law being very plausible to the Commons Julius Caesar revived to assure the People unto him and to obtain their compliance with his usurpation It was a law seditious in it self serving aptly to imbase and make contemptible the Majesty of the Senate and Consuls but in respect of the meanes used to make it pass with their votes it was abominable for tumults were raised on purpose and such violence was offered to one of the Consuls for opposing it that the Ensigns of office carried before him were broken Plutarch in the lives of Caesar and Pompey and a basket of dust thrown upon his head and two Tribunes and some others in his company were wounded and soon after came to an end the Roman glory and their liberty Insomuch as many of the wisest seeing the madness of the People and their contempt of Laws and their former government thought themselves happy if the Common-wealth was no worse afflicted then with the burthen of an absolute Monarchy It is not the retaining of some of the usual form and solemnity as was in the making our two Statutes that maketh a binding law if the principal and essential parts and properties of a Law be wanting For a Law hath no force nor virtue when the material and final causes and reasons of a just Law do cease and are determined and the execution of that Law would prove injurious or absurd And so a Law or Grant whose foundation and ground is laid upon a fiction or presumption of a fact or thing which never had any existence and being Medina Felin alii Ancharan Decius alii Decis Rotae Rom. hath naturally no force efficacy as having no consent of the will but onely under an implyed and supposed condition Quae reipsa non extitit sic veritate facti deficiente totum legis desicit fundamentum quia haec est obligatio quasi ex falsa causa quae nulla est obligatio cùm deficiat voluntas ejus qui se obligavit cum aliquo praesupposito deficiente veritate dicti praesuppositi Jus supposititium lex improbat Moreover if a Law although it had at first just causes and reasons for making of it which after fall off and cease doth lose its force and vertue what may we say of our two Statutes and some others made in this long Parliament which in lieu of just and legal causes and reasons were fraudulent pretences and illusions put upon the King to obtain his assent and to abuse the people for the advancement of evil designs and the strengthening of a pernicious faction In a stipulation or promise although for the making of it there was just cause L. 2. F. de except doli L. penult F. de condict sine causa Cuiac alii sed nunc nullam causam idoneam habere videtur vel causa non secuta aut finita est datur contra petitorem doli mali exceptio quia non refert utrum ab initio sine causa aliquid datum sit an causa propter quam datum sit secuta non sit vel ex post facto redierit ad injustam vel nullam causam ita ut datum videatur sine causa Inomnibus causis quae jure non valuerunt L. 54 F. de condict in debiti l. 36. de verb. obl vel non habuerunt effectum revocatur quod datum vel solutum erat All stipulations are in their nature stricti juris and therefore not easily made void yet if one be bound contrary to his will by machination and practise he may void such stipulation And so all other contracts grounded upon deceit are void or voidable where there is dolus ex proposito dolus dans causam contractui vel ubi res ipsa in se dolum habeat And the Law doth ever provide ne quis ex dolo suo lucrum habeat L. 36. F. de verb. obl Exceptio doli accomodatur ei qui aliter obligatus est quam convenisset licet alioquin subtilitate juris obstrictus esset nihilominus repellit agentem ex stipulatu ctiamsi nulla sit ab isto adhibita machinatio dum tamen ipsares in se dolum habeat And yet not every deceit nor every fear will void promises contracts and grants as that fear is reputed sufficient which may overcome a man indued with fortitude so that deceit seemeth by law sufficient which may deceive a prudent person so as the fear or deceit were the immediate cause without which the man would not have done the act But how far this fear or deceit shall extend according to the quality nature and condition of the persons and other circumstances and whether deceit errour and ignorance do more abolish the consent of the will then fear or violence is to be left unto the Judges as a question of fact and so the Interpreters of the Law agree after much diversity of opinions amongst them As in all grants and releases fraud is alwayes presumed to be excepted so shall they not extend unto that which the party granting or releasing may justly be presumed to have not had thought either in specie or in genere non ad inopiata incognita extenditur dispositio Decis Rot. Rom. Farinacii Decis Rot. Rom. Lib. 2. Cod. de rescind vend Lib. 7. Cod. Quando provocare nec ultra ea pro quibus factum erat so general words shall be restrained ad rationem causam propter quam fuerunt prolata and so in case of excessive hurt and damage per enormissimam laesionem aut error aut ignorantia aut dolus ex reipsa praesumitur A sentence and decree shall not bind if it passed through bribery and corruption per sordes turpitudinem ipso jure nulla est although the Law saith interest Reipublicae non convelli rerum judicatarum authoritatem quia
rebus judicatis stat status Reipublicae Neither shall a Judicial decree prejudice one under age L siquidem Cod. de Praediis minorum Exravag de reb Eccl. non alienandis l. 5. penult F. de reb eorum qui sub Tut. l. 4. Cod. quib ex cau major l. 35. F. de rejud Cuiac l. 1. F. de just jur neither the Church if any of the legal solemnities injoyned by law are wanting for dolus reipsa praesumitur inesse Or if such decree be surreptitiously gotten then no propriety or right doth pass thereby from the Minor or Church but still they may have their action real or personal non tantum in personam sed in rem ipsam Pacta contra jus Reipublicae non valent hoc ad Ecclesiam trahi debere quae in jure semper comparatur Reipublicae nam jus publicum quod ad statum rei Romanae spectat etiam in sacris sacerdotibus consistit The interpreters of the Law say Ecclesia Respublica minores circumventi vel lapsi in integrum restituuntur ergo Princeps for above all the law is most favourable unto the Prince His Patents Charters and Grants according to common intendment and the usual clause inserted are to proceed from him ex mero motu certa scientia All his Grants and contracts are bonae fidei Baldus alii rather then stricti juris and ought alwayes to be interpreted ex bono aquo He hath many singular priviledges by the Civil law and by the Common law of England He is not deprivable of remedy against undue forms as he can do no wrong so shall he receive no prejudice through the defects in Legal forms The inserting or addition of any words or clauses prevail not against him when there is cause to presume that he was ignorant or deceived There ought not to be with any man but there must not be with him a striving saevâ praerogativâ verborum contra juris sententiam nec rei gestae veritatem ulla scripturâ mutari as in the Roman law If there are legal and strong presumptions praesumptiones juris de jure quae pro liquida probatione habentur that his grant did not proceed from his certain knowledge and meer motion but was surreptitiously gotten no words prevail but the more forceable they are Baldus the more fraud they carry with them Vbi abundantior est Cautela evidentior fraus praesumitur quod quis ita cautè facit ne fraudem fecisse videatur major periculosior fraus ex eo praesumitur Clausulae cautiones insolitae ipsum actum magis suspectum faeciunt Beldus Decius alii licet abundans Cautela non nocet tamen quod dubitationis causae tollendae videtur poni si sit insolitum suspicionem inducit contractum simulatum arguit Injustice the more it hath of the shew of legality the more mischief it worketh That lye is the worst saith Quintilian which seemeth to come nearest unto the truth Nulla major pestis est humano generi justitiae Cicero offie lib. 1. quam eorum qui cùm maximè fallum id agunt ut boni viri esse videantur This clause of certain Knowledge doth not work effectually nisi circa ea quae Princeps praesumitur scire prout sunt ea quae in jure consistunt secus circa ea quae in facto consistunt de quibus saepe praesumitur ignorantia ejus Decis Rotae Rom. Farinacii 656. pars 2. Neither can that other forceable clause of meer motion hinder a just exception and be a barr from making deceit appear which deceit may proceed vel ex re ipsa vel ex parte impetrantis quando ex suggestione ejus obtinetur Et cum emanaverit ad supplicationem supplicantis censetur Papa vel Rex aliquis se fundasse super narrata si narrata non verificantur Decis Rotae Rom Durandi gratia confirmatio vel rescriptum corruit Yet notwithstanding a man may be said to grant of his own proper and meire motion although he accepteth the petition of the party when he is not moved to grant only because the other desired it but of a willingness also and bounty in himselfe Decretal de rescriptis c. 20 In the Imperiall Law it doth often occur nos amoventes quicquid surreptitia impetratio furtiva deprecatio vel potentia alicujus elicuit Vbi literas impetrant à nobis per fraudem vel malitiam L. 2. l. 6. Cod. tit si contra jus vel uti litatem publicam Coveruvias var. resol l. 1. c. 20. l. 3. l. 1. Cod. de precib Imp l. ult Cod. si 〈…〉 pubil veritate occultata vel suggesta falsitate If those acts are void or voidable by Law which are defective in respect of the form or in respect of the indirect manner or means used for the obtaining them as force fraud false suggestions or concealing a truth necessary to be known ubi mendacium reperiatur sive in facti sive in tacendi fraude those acts also are undoubtedly void in the matter and subject which are utilitati publicae adversa vel juri communi and such are those which are against the just and ancient rights of the Crown against the fundamentall Laws and the just rights and liberties of the subjects L. 7. F. de pâ—ctis l. 112. F de legatis 1. l. 5. Cod. de legibus for such are against the common peace and weal-publick Nec pactum nec jusjurandum à jure communi remotum servandum est Jusjurandum contra vim authoritatem juris nullius est momenti But a Law is of greater concernment then either the contracts of private men or the grants and ordinary Charters of a Prince If equity be wanting to a Law the vigor and life of it is wanting Legum parens est aequitas Cicero l. 90. F. de regulis Ju. is in omnibus maximè in jure spectanda est aequitas Our Lawyers sinde in their books that when an act of Parliament is against common reason or common equity or cannot be executed without doing wrong the common Law doth controwl that act and doth adjudge it void agreeable to that rule given by the Interpreters of the Civil and Canon Law statutum potius interpretandum ut nihil operetur quà m ut iniquitatem contineat And yet notwithstanding all this that hath been said some of our Lawyers delivered their opinion being required by the King that this Statute for continuation of the Parliament during the pleasure of both Houses was not void in Law although by that Law the King was almost laid aside or used but as a cypher and little account made of his negative voyce in Parliament in respect of their new usurped power to make Ordinances so as the Parliament was changed from being the great Councel of the King and became as the Roman and Venetian Senate and
lawes and liberties lay his claim to the Crown ex concessione sancti Edwardi devicto Heraldo Rege but no mention of any consent or right of the People He did as other Conquerors sometimes seem to wave his title by Conquest lest touching that string too hard it would make a jar and hinder all harmony But his concessions and confirmations of the ancient Lawes and liberties proved for the most part but illusions Ingulfus Malmesb. Some of our Historians affirm that he changed most of the Lawes and made us accept his own Norman Lawes and customes delivered in the Norman language a mark of servitude imposed by the Romans where they had conquered Polid. Virgil. He moulded the English customes to the manners of his own Countrey and did forbear to grant the Lawes of holy King Edward Edmeruâ— Huntingdon Hâ—veden so often called for yet at the suit of the Barons the Laws of King Edward correboratae confirmatae erant quia veneratae erant prae caeteris legibus per universam Angliam And therefore our great Lawyer mentioned in our Law books did speak without book in saying that the Conquerour came not to out those who had just right and possessions but those who held wrongfully to the disherison of the King and his Crown He had more knowledge in points of Law then he seemed to have of matters of fact so long before his time As we cannot find anything that can manifest this inherent and original right of the People so can we not find in any case any colour of right in them to justifie their deposing limiting and chaftising of their King as our Adversaries affirm saving onely some matters of fact which they would have pass for Law and according to their usual course draw their arguments à facto ad jus Edward the second and Richard the second were charged in Parliament for oppressing spoiling destroying and the like and were deposed yet those Parliaments did never rely upon or mention the Peoples inherent and original right to justify their proceedings neither much insisted upon the proof of those crimes objected against them as causes sufficient to ground their most illegal and violent proceedings Neither did they hold themselves sure until they had by a conjuncture of fraud and force drawn those Kings to a seeming willing resignation acted in a form and solemnity abounding both in absurdity and horror For if the power and authority of Kings ceaseth ipso facto as our new men would have it for oppressing spoiling and destroying so that they may be deposed by their Subjects why was this power and right of the People never claimed and declared in any Monarchy when they had sharp disputes with their Kings as we have had for oppressing spoiling and destroying but alwayes we quieted ourselves with a present reformation of pressures and abuses and with a new confirmation of magna Charta which those Kings had no power and right to confirm and grant if according to these mens doctrine their power was determined ipso facto and returned to the People and they or the Parliament in a condition to reassume and exercise it If Subjects have no right and very rarely or never attempted to bar the next in succession when the right of the Crown descended unto him for any personal defect or crime of his or his Ancestors or upon any former judgment or sentence given in any Court against him before the right of succession fell unto him they have less colour of right to depose him after he is in possession for any crime then committed Turpius ejicitur quam non admittitur The old Doctors of law of great credit in their times and since could tell them that it did belong to the Pope as Christs Vicar to compel rebellious Subjects to the obedience of their Soveraign by spiritual censures and excommunications and that in the Pope was all the power to depose Princes yet so as he ought not to proceed to the deposing of them except in cases of the highest contumacy and for the greatest causes quae Rempub Christianam laederent seeing it could not be done but with a great and general Scandal and with the perturbation of the publick peace For by their opinion the Emperour who is elected could not although with his free consent resign unto the Electors but into the hand of the Pope in respect that a resignation is properly to be made unto him who is Superiour and hath right judicially to hear and determine the cause Innocent Baldus Archiadic ad C. admodum Extravag de renunciat Peregrin de jur Fisci lib. 1. tit 2. 3. L. 27. S. 2. L. 22. S. ult Mandati F. Sote de Just. jure lib. 4. quaest 4. art 1. Suarez de legib l. 3. c. 4. Glossa ad Clement tit de Beptismo Aquinas secund secund quaest 42. artic 2. Mariana de Regis institut lib. 1. c. 6 c. 9. and compel the parties to the obedience of his decree Renunciatio non tenet nisi facta sit penes eum qui renunciantem invitum causà cognitâ judicialitèr destituere potuisset neque sine licentia superioris officia seu beneficia accepta dimittere licet Qui mandatum suscepit deserere promissum officium non debet alioquin quanti mandatoris intersit damnabitur mandatum suscipere voluntatis susceptum consummare necessitatis sit But there are other later Doctors more bold who affirm that a King for Tyranny may be removed by the Common-wealth or compelled by the Popes spiritual power quando à Divinis legibus rebellavit Others say that he cannot be deprived of his power by the People from whom he hath his power nisi quando in Tyrannidem declinet ob quam causam possit bellum justum contra eum geri And they repute him to be a Tyrant qui in Repub. non jure principatur cùm Princeps tendat ad bonum commune Tyrannus ad proprium ergo Tyrannus non est Princeps ideò perturbatio ejus regiminis non habet rationem seditionis nisi forte quando sic inordinatè perturbatur Tyranni regimen ut multitudo Subjecta majus detrimentum patiatur ex perturbatione consequenti quam ex Tyranni regimine And when they have declared a King to be a tyrant potest in jus vocari â Republica unde habeat Regia potestas ortum suum rebus exigentibus si sanitatem respuat Principatu spoliari neque ita in Principem jura Potestatis transtulit Respublica ut non sibi majorem reservaverit potestatem * How can the Subjects have jurisdiction over the Soveraign Prince qui est fons omnis jurisdictionis à quo jurisdictiones per concessiones commissiones confirmationes fluent ac per appellationes querelas nullitates ad eum refluan Bald. Bracton noster Here our adversaries joyn with some Doctors of the Romish Church for they find this doctrine as necessary for them
gladius acutus and in Job flagellum linguae The other means used by Incendiaries is the publishing of Prophesies or making use of them to amuse the people and keep them in the expectation of a change New Religions were brought into Rome by certain Books of Prophesies which were publickly burned It was a capital Crime by the Roman Law in him * Livius L. 30. F. de Poenis Qui aliquid fecerit quo leves hominum mentes superstitione Numinis terrerentur and so was it also in them †Paul sent lib. 5. lit 21. 23. tit Cod. de malesic Mathem Leo descrip Africae Qui divinandi artem exercebant aut Vaticinii libros habebant And thus by the Canon Law and also by Mahomets Law Magiam Cabalisticas artes lege Mahometica vetitas esse The Magicians and Southsayers and those who profess the knowledge of things to come are more dangerous to a City saith St. Hierom then fire especially those who consult of the state of the Common-wealth or of the life and death of the Prince * L. 8. Cod. de Mathematicis vel Arioles atuspices vaticinatâ—tes consuluit cum eo qui responderit capite punitur Paul senten lib. 5 tit 21. Cuiac ad tit Cod. de Maleficis Qui de salute Principis summa Reipublicae Mathematicos consuluit he was punished by death And by that Law the crime was equal in both talia prohibita tam discere quà m docere in those who did seek to learn as well as the Masters of that Art †Caus 3. quaest 5. c. 9. Deut. 18. Lev. 20. 19. The Canon Law made all those infamous Qui ad sortilegos Divinos concurrunt infames sunt nec accusatores nec testes esse possunt The divine Law saith there shall not be found amongst you that useth Divination or is a Wizard they shall be put to death Seek not after Wizards to be defiled by them * Confess lib. 7. c. 6. Mathematicorum fallaces divinationes impia diliramenta saith St Austin Who so are desirous to search into these vain and impious Prophesies and to enquire of things to come the Devil is ready to answer their curiosity with strong delusions Lipâ—â—i monita Posit quae turbant animos ad novas aut magnas spes impellunt Nunquam curiositas cupiditas conjuncta cum avaritia superstitione cognoscendi res futuras Aelian var. hist lib. 3. c. 3. neque Gentilibus neque iis qui Christiani perhiberi voluerunt impunis vel innoxia fuit The raisers of a dangerous sedition in York-shire Heyward in Edw. 6. in the reign of Edward the sixth took their rise and encouragement from a dark and deceivable Prophesie and understood that to be the time to accomplish that Prophesie which did fortel the time should come when there should be no King and that the Nobility and Gentry should be destroyed and the Realm ruled by the Commons holding a Parliament in commotion Thuan. lib. 125. The Duke of Savoy not to condescend unto equal conditions of Peace with Henry the fourth of France was drawn by a Prophesie that at such a time there should be no King in France which had something of truth for the King of France was that year in Savoy and in the pursuit of his Conquest thereof And yet notwithstanding such is the desire of men to know things to come that these Astrologers and Southsayers gain more credit by foretelling one truth then they do discredit by ten falsities whereas others if they lye in one thing are scarce ever believed in any truth they relate Religion and reformation as was said before have ever been pretended by those who have had pernicious designs and factious and ambitious men have often taken hold of the dissentions concerning religion to work the people to a compliance with them These men convert Religion under false and specious pretences into faction or use religion like a stalking horse as did Jerobeam and Mahomet Qui nervum potentiae suae in novae Religionis formulâ ad affectus hominum inflexâ ponebant * Jerobeam usurped and Israel rebelled against the house of David Jeroboam changed the publick service of God and also the place from Jerusalem to Bethel and to Dan for if the people went up to Jerusalem to sacrifice he feared their hearts would turn to Rehoboam their King and the Kingdome return again to the house of David and he made Priests of the lowest of the People which were not of the sons of Levi 1 King 12. The changes in religion have often wrought great changes in the minds and manners of men whereupon the saying is grounded A new religion and a new Prince or government The Popes Nuncio hearing Francis the first of France use sharp speeches against the Pope and saying he would withdraw his Subjects obedience from the Sea of Rome in things of Ecclesiastical Discipline the Nuncio replied that his Majesty would be a loser thereby as much as the Pope for a new Religion if it took the People in the head would draw them on to the desire of changing their King or Government Unity in Religion being the chiefest pillar that upholdeth the joynt obedience of the Subjects to their Soveraign and to the Lawes of their Countrey â—or where they are not united in their Religion they are not united in their Obedience to their Soveraign neither in their affections to their fellow subjects but are ever apt to fall into seditions and of this there are many examples in this latter age Not to come nearer unto us I will rather choose to relate that of the Moors in Spain who notwithstanding all the endeavours of the Emperour Charles the fifth and his Successors could never be made good Subjects or Christians they only pretended a desire of liberty of Conscience which they thought they could never obtain unless they had a King and Lawes according to their will Fonseca of the expulsion of the Moores whereupon they entred into a most dangerous conspiracy and took up arms The Proverb was true never of a good Moore a good Christian Their King said of them that they would never be faithful to God who would never be faithful to their King Hist of Spain Curtius It was truly observed of such inconstant People Meliùs vatibus suis quam Regibus suis parent a new Apostle is more precious then King or Lawes How often Monita Pol. saith Lipsius of old and of late times to the great peril of Princes and Common-wealths Pravae aut novae religionis titulo populum concitatum fuisse unus aliquis concionator sanctimoniae famâ telo armatus eloquentiâ aliquâ ornatus quid non patrat Of such men the Prophets often gave warning who flatter the people and prophesie lies in Gods name For this cause of Religion men become wolves to each other in this fury they abandon all respects civil
charge of raising Sedition when the malice hath been greater then the matter and no other special crime could be found So Saint Paul was accused for being a pestilent fellow and a raiser of sedition Tertullian saith Christians in his time were called hostes publici enemies of all Common-wealths and Suetonius doth most impiously say Judaeos impulsore Christo assiduò tumultuantes In vits Claudii l. 15. hist and so Tacitus saith that Nero Reos quaesitissimis poenis affecit quos per flagitia invisos vulgus Christianos appellabat unde quamquam adversus sontes novissima exempla meritos miseratio oriebatur tanquam non utilitate publica sedin saevitiam unius absumerentur thus happeneth to all a like measure who lye under the publick hatred It is true that the change of Religion in Germany and in other parts of Christendome was driven on in a tumultuary course and was not wrought in such a calm as it was in England where these changes went formerly in an orderly and quiet passage under the conduct of a Royal power and a prudent Council of State Religion changed as it were by degrees and insensibly all things seeming to remain in the same course and state as before and as one observed it was in those times so carried with us ut Catholicam religionem sine sensu Plebs exueret cultu in specie eodem manente The Parliaments in England in those times gave much countenance and authority to those alterations with the People The Kings and Queens would hardly have effected it Regiâ manu notwithstanding their power and the love they had of their People The Parliaments were wrought not onely to ratifie Riba Jinera del Schismad Ingla terra but to be petitioners for those changes in Religion A stranger writeth that when Queen Elizabeth came to the Crown religion was not altered with violence and bloud as in France Scotland and the Low-countryes but changed and established by Laws by Royal mandates and with Parliamentary concurrence which saith he hath been a subtil and powerfull invention armed with the authority of Prince and Kingdome for the sure rooting and settlement of sects and heresies These quiet alterations formerly were even marvellous in our eyes Lord Chanc. S. Albans of the union between England and Scotland and as it were a selicity peculiar unto our nation as was said of that change upon the death of Queen Elizabeth and the coming in of King James who acknowledging to the Lords of England their great loyalty in his coming to the Crown said that it was a success above the course of nature to have so great a change with so great a quiet In Germany France Scotland and other parts of Europe many of the Contrivers and Actors in the reformation of religion did neither sapere ad sobrietatem neither agere cum sobrietate especially when they were strongly opposed and perceived divers designs for their destruction for some of them had a mixture in their heads of the Anabaptistical leaven and were infected with that fury Insomuch as Bucer a man of great learning and moderation would often say unto them that in their great heat of zeal in rectifying the service of God and reforming the Church good order and discipline failing amongst them the tumultuous and seditious persons were not chastised neither any order and decency in the service of God observed and therefore their laudable endeavours would not long last neither happily succeed for the discreet and moderate men amongst them and those in greatest authority were oftentimes compelled to suffer many enormities and outragious actions lest by enforeing correction and discipline they should lose the assistance and affection of their own party Tacitus The Captains durst not take the boldness to punish as the fouldiers did to offend voluntary obedience maketh the command and power weak as is that power which cannot subsist by its own streng Before Luther was in his grave and when his reformation was but in the infancy some who seemed or were reputed his disciples brake out of their pretended integrity through an over zealous and irregular desire of reformation into abominable opinions and furies tending to the destruction of all Goverment in Church and Common-wealth And Luthers doctrine also meeting with divers of weak and turbulent Spirits over greedy of reformation and abounding with wild zeal or Spiritual pride all the precious liquor they received turned into gall and vinegar and from these did seeds soon spring up which raised a swarm of * These Anabaptists then started up and declared that they had speech with God who commanded them to destroy all the wicked and to taise a new world in which the godly onely should live and reign Sleidans Comment lib. 3. Fox Acts and Monuments Anabapâ—iâ—ts and other fanatick Sectaries which made themselves a new Gospel of Licentiousness and Rebellion and scorned Luther and his doctrine at last And although after they had done much mischief they were suppressed yet they scattered such seeds as the fruits thereof do now exceedingly afflict the Church and cause great disturbance which to plous men is the greatest persecution August de Civit Dei l. 18. c. 51. for this afflicteth their hearts and souls qui patiuntur hanc persecutionem non in corporibus sed in cordibus est persecutio intrinseca extrinseca Caus 7. quast 1. cap. 48. By this we may see what hath moved Princes and Common-wealths not to tolerate divers religions or any thing different from the religion established Platina Mahometanaem sectam latè sparsisse se dum religionis nostrae capita inter se diffident sic factum est ut ad Mahometanos partìm vi partim spome deficerent populi hinc amissam Ecclesiam Antiochenam Alexandrinam Hierosolymitanam August de Civ Dei lib. 18. cap. 51. Multi volentes esse Christiani propter eorum diffentiones haesitare coguntur multi Maledici in his inveniunt materiam blasphemandi Christianum nomen quia tales Christiani appellantur The Devil saith Saint Austin doth stir up Hereticks who under the Christian name do resist the Christian doctrine The Romans had ever a circumspect eye and carried a severe hand on those qui nova sacra peregrinos ritus introducebant and they ordained Valer. Max. ne qui Dii nisi Romani Dii neque ullo modo quà m patrio colerentur * By the Divine law he that sacrifi ceth to any god saving to the Lord onely shall be destroyed Exod. 22. The Prophet or dreamer shall be put to death who doth intice to the service of other gods Deut. 13 5. and the ichabitants and the city shall be destroyed that serve other gods Deut. 13.15 16. For as Livie saith the wisest and most skilful in all divine and humane lawes held nothing so forcible to overthrow Religion as when the Divine service is celebrated after some strange and forreign course and not
The Roman Tribuneship was reputed sacred being established for the safety and benefit of the people Plutarch in the life of Gracch But if the Tribunes do that which is contrary to their office or cease from doing those things for which their authority was given them their authority and priviledges leave them Suarez de ligib libro 8. alii Privilegium licet non amittitur per non usum amittitur tamen per usum contrarium per delictum oceasione privilegii commissum per delictum seii abusum directè privilegii sini repugnans fundamentum ejus destrmns And as there are military priviledges and military offences and punishments so are there Parliamentary priviledges and Parliamentary offences which have had and ought to have condigne punishments agreeable to Justice and Politick government and presidents in all times and Kingdomes * They that say a whole Society or Colledge cannot be punished as it cannor he excommunicated do agree that not onely the offenders may and chiefly those who are the cause but all those also who are members and did not resist the evil nisi pertinaciter re stiterunt aique aclis contredixerunt Gless ad c. 7. causa 10 quast 2. ad Decretal de Simonia c. 30. quia officium eorumindividuum est periculum commune universi sunt veluti in corpore unius formae quod ab uno cemmittitur quandoque totius corpnis periculo commiuitur Si tales sint astus singulorum per quos detegi potest conniventia seu voluntas tacita universitatis approbantis delictum Although in all Parliaments Assemblies and Councels the offences of the particular members ought to be distinguished from those of the whole and intire body which may also be involved in their crimes by connivance at them or by neglect in punishing or preventing that which lay in their power Laeditur personali scelcre ac particulari causa cunctorum in Populo Israelitico saepissimè unius facinus pestem fuisse mutiorum Potestas quae inhibere scelus porest quasi probat dedebere sieri si sciens patitur perpetrari But more properly and directly the whole body offendeth in omitting their Principal duty and in committing acts contrary thereunto una voluntate praesidente deliberatione Augustin communicato consilio And as in the Roman History is doth often occur an privato an publico cousilio Si defecerit Populus Livius publico cousilio dolo malo sive non quia delicta vulgi d publica causa separari A People a Cohedge a Body politick may offend and are punishable and as in the Law Populus Cicero L. 9 F. Quod metus vel Curia vel Collegium hoc edicto â—enentur Sometimes the offence shall be punished in their natural Person sometimes in the body Politick sometimes in both And much dispute there is amongst the Lawyers quando universitas punienda sit in suo universali quando in particulari quando quomodo ex delicto Collegialiter commisso quando poenâ laesae Majestatis punienda sit universitas quando singuli ob delictum universitatis all which I passe over although worth consideration The most agreeable course unto Justice is to lay the greatest punishment upon the Authors and cheife Actors Liviues ut unde orta est culpa ibi prna consistat Upon these the Law imposeth the damage for the most part and oftentimes they bear the whole punishment if they can be found L. 6. Cal. de vipubl in eum supplicium exerceri qui vim facere tentaverit alteri parti causam malorum praebuerit It was the Command of God unto Moses to take the heads of the cheife of the People and to hang them up Numb 2â— 4 who had consented dissembled and participated in the common impiety Liviue Causa origo penes autores a quibus contagio Singulis civibus civitatibus tumultnantibus P. Fab. Seme lib. 3. c. 16 atque adeò si non rebellibus contumacibus sed inconsulto ac temerario motu vel alieno etiam exemplo veniam dari For the multitude or greater number seldome equally offend in the highest degree multitudo vix peccat graviter sed aut decepta aut impetu aut temeritate as in the Imperial Law Novel de Procur Casar or by a fatal fury of the time seising on them as a pestilent contagion fatali rabie temporis pestiferâ comagione Livius l. 28. as Mendonius the Spaniard said unto Scipio in excusing his and his peoples rebellion Distinct. 44. c. 1. distinct 6. c. 1. de Poenitentia cum Glossa Multitudo est causa in quam severitas disciplinae exercenda non est sed si volunt defenere peccatum quasi ex authoritate tunc multitudini parcendum non est And therefore we find it agreeable with the practice of the best men and to the rule given by the most prudent that the multitude be spared especially after the offence committed although not when they are in the act offending non parcitur multitudini in delicto committendo ubi perniciosior est quies cunctatio quà mtemeritas Bartol de seditiosts nihil festinatione tutius magis facto quam consulto opus est There may be oftentimes just cause to forbear all punishment of the People as in the case of Syracusa who being charged with revolting from the Romans they pleaded for themselves that their City was undone between the Tyrants of the one side who held them under the yoke Livius lib. 26. and the Roman General on the other side so as they stood in the midst as a prize or reward for the winner and ought therefore to be rather restored unto their former estate by the Romans then after so miserable servitude and war to endure a new addition of affliction and misery I have observed that there are two Pests and cankers which in time hath not onely eaten out all that excellent fruit and benefit which Kingdomes have had and may reap by the right use of Parliaments but have also caused that institution so necessary for the Publick good to prove the bane and ruine thereof The one is when Kings absolute in power and exorbitant in their will give that rule to Parliaments as Xerxes gave to his Counsellors to obey rather then perswade and call their Parliaments onely out of specious pretences for getting of money or to authorise and countenance some sinister purpose and design using strong delusions and giving fair hopes of redress of grievances ostentata potius quam data Paul Aemilius nec nisi brevì mansura remedia Some of the Roman Emperours shewed Kings this way and obtained their desire the Senate being fearful and tongue-tyed Plinius and were called aut ad summum nefas aut ad summum otium * Senatui praebebat Tiberius simulachra libertatis speciosa verbis re inania
quantó que majore libertatis imagine tegebantur tanto eruptura ad infenfius servitium Tacitus This amongst many other ill effects taketh off the affections of the people and fillech them with jealousies and causeth them not to give credit and assistance unto him when they ought The other Pest or Canker proceedeth from Parliaments as when they suffer the power and dignity of the Parliament to be abused and perverted by a predominant faction which swayeth all and cut out all their work in relation to their own designs and the authority of Parliament serveth las do journey-men to make it up and acceptable to the people This is as bad if not worse then the contrivance of Lewis the eleventh of France used also since by his successors who finding how tedious Parliaments were in their most important affairs requiring most expedition Paul Aemilius Thuanus Bodin de Repub Ordines pro tâ quam exercent in Comitiis libertate facile dissensuros fuisse in quo majestatem suam Populis tentandam aut etiam contemnendam expesuisset Rex eorum animos tanto magis irritasset quanto ils invitis peregisset Strada Bentivoglio de bel Belgico how apt to fall into impertinent diversions into faction and turbulent licentiousness under colour of using their just liberties and promoting the publick good these Kings procured the power and office of the three Estates to be transferred to certain select delegates taken out of their own body and so saved the trouble of the General Assembly and took away almost all use of Parliaments and with it the best means the people had to acquaint their King with their grievances and obtain redress and to preserve their just rights and liberties And although Parliaments are called for just causes and do sit in full liberty and freedome yet doth it often happen as in some General Councils called for the extirpation of Heresies and Schismes and the preservation of the Church and the peace thereof that they being not at peace among themselves before they came neither bringing with them the love of truth and minds inclinable to peace and moderation the former evils for reformation whereof they were called were not taken away but strengthened and augmented and diverse others raised for those men are most unfit for counsel who have their minds wholly possessed with perturbations and jealousies or their cogitations bent unto faction or any smister designs These bring nothing with them but the spirit of contradiction partial and interessed opinions secret designs and open animosities And then it falleth out as Tacitus saith quae apud concordes vincula charitatis incitamenta irarum apud infensos crant Non sic Romani antiqui qui privatas res suas pro Republica contempscrunt consuluerum Patriae consilio libero August de Civit Dei lib. 5. c. 15. Imperator Constantinus scripsit ad Synodum Tyri ut conceptas rixes delerent quia secum discordantes non liceret ad divinum cultum adesse nec munera sua offerre altari priusquam ad mutuam pacem redterint â—t lege divina docemur Euseb in vita Constant neque delicto neque libidini obnoxii CHAP. VI. The Right that Bishops have to sit in Parliament TO take a more particular view of those things which destroy the state and essence of Parliaments we will observe in our passage some particular men of great estimation abounding with pernicious hypocrisie covering their designs under the cloak of counterfeit sanctity and having their iniquity supported and armed with Authority Vbi Dei numen praetenditur sceleribus Livius Augustin Livius lib. 24. ubi nequitiae suae patrocinium de Scriptura sacra requiritur ubi liberator Patriae insidiator ipse libertatis habetur tyrannos ulciscendo quae odissent scelera ipsi imitantur Buchan Scot. hist. lib. 13. ubi Parricidas publicos qui Regem suum occidissent ipsos omnis Divini humani juris violatores pro vindicibus decoris publicise ipsos venditare liberatorum Patriae nomen usurpare Such mens hypocrisie saith Saint Austin quia illa quae mendaciter agunt sic agunt ut populus eos veraciter agere existimaret is most pernicious and damnable When fraud or force have their influence over Parliaments the stability of all matters there enacted is undermined for such acts prove but the seeds of future evils and immortal discord In all well-governed Common-wealths there hath ever been especial care that the Councils Parliaments and Courts of Justice should be free from all force and coercion Lib. 2. tit 27. de Feudis By the Imperial Law ad palatium vel ad forum nullus miles ferat arma So by the Law of the Lumbards armatum in curia Domini jus non est ingredi ut sine rixa sine suspicione procedant judicia The Interpreters of the Roman Law say that arms ought not to be born in the palace neither in the confines nor near the gates thereof and so the Parliament of Paris gave judgment agreeing with Cicero judicia nulla sunt Cassan catal Glor. mundi dominante vi vis maximè juri adversa est And long before did the Roman Law punish by banishment as guilty of the Law Julia de vi publica him who came armed unto their Tribunals and places of judicature or through an evil intention did disturb and hinder the peaceable proceedings of Judges and those in authority qui dolo malo fecerit L. 10. F. de vi pub quo minùs tutò judicia exerceantur aut Judices ut oportet judicent vel quominùs is qui potestatem habet jus decernat imperet faciat Amongst others of the like kinde we finde in the tenth year of Edward the third two Proclamations Cook Institut 4. that none should wear armour or weapons in time of Farliament When Sylla brought his army to Rome and caused himselse to be made Dictator by a Law although made for fear yet with all usuall formalities Cicero declared that Law to be no Law but such effects ensued that the Roman Senate never recovered their former lustre or liberty Thuan. lib. 23. The Court of Parliament of Paris gave a severe sentence against some of the reformed religion their name being crime enough and yet the sentence was reversed Caus 11. quaest 3. cap. 89. cum Glossâ ut per vim vitiose lata in respect the Judges were over-awed Sententia per metum lata nulla est ipso jure When the Protestant Princes and Cities of Germany were summoned to the Councel of Trent some of them made their Protestation and appeal ad Concilium Generale pium legitimum and divers learned men declared that the Canons of that Councel could not binde Thuan. alii quia Concilium illud fuit nullum vitio indicts â— habitum terminatum It may well be granted that force offered to a Parliament may make void all their
King be in the worst condition of all men sit quasi exul qui est omnium praesul Baldus He is tyed by the Laws of nations and nature to observe just contracts which as the Doctors say he cannot make void and revoke de plenitudine potestatis suae The Lawyers affirm that vectigalia alia emolumenta ex jurisdictione provenientia alienari possunt in parte praescribi possunt firma manente jurisdictionis suae suprema exercitatione apud se et successores suos Baldus ita ut sit sine diminutione authoritatis supremae derogatione directi dominii Principis * No Act of Parliament can bind the King from any prerogative which is sole and inseparable to his Person And although some of these Regalities seem to be reserved yet are they grantable and subject to prescription as creare Tabelliones monetas cudere exactiones vectigalium aliquorum and some others quae cùm sint inter minora Regalia corporis summique Imperii Patrimonii Regii integritatem non imminuunt In his praescriptio valeat contra fiscum * Peregrinus de jure fisci alii Chopin de doman Reg. Codex Fab. Sex tinus de Regalibus Tributa alia publica functio seu collatio nullam temporis praescriptionem admittunt Cod. l. 6. de Praescript 30. vel 40. annorum Et generaliter res Fisci non usucapi l. 2 Cod. communia de usucapi Institut de usucap l. 18. F. de usucap temen sunt aliqui casus ubi praescriptio locum tenet contra Fiscum per leges constitutiones Imperiales l. 4. l. 6. de Praescript 30. 40. annorum Cod. l. ult C. de Fundis Rei privatae l ult C. de Fundis Patrimon caus 16. quast 3. c. 16. de Tributis aliisque prensitationibus publicis nullo temporis spacio praedia redduntur immunia non sic de alio jure publico principali seu Fiscali Feudali Cujac consultatio 54. Census tributa domnium Principis res sunt inalienabiles imperscriptibiles quarum vindicatio nulla temporis praescriptione submoveatur His ancient and just tributes and customes and his right of imposing moderate gabells and taxes are not alienable neither within the reach of prescription as likewise the domaines of the Crown called the Royal Dowry for when these are taken away he doth lose his peculiar and proper livelihood and the ordinary means to support his estate and the Common-wealth receiveth much detriment when the King hath not wherewith to live of his own but the people must be continually burthened with exorbitant and illegal Taxes and courses used for raising of money the most usual causes of discord between the King and the People often producing Insurrections and Rebellion and sometimes made use of by factious and discontented persons to justifie or colour their designs against their Soveraign The Emperour Vitellius unto some men released his Tributes Tacitus to others he granted over-large immunities without care of posterity he mangled and maimed his Empire The Common sort accepted these favours the fools bought them with money which wise men accounted void as being such as could neither be given nor taken with the safety of the State CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patens or Grants BUt we cannot finde any grants of Vitellius or of other Roman Emperours or Princes subject to more just exception either in respect of the matter and things granted or the means used for the obtaining of them or the end and purpose for which they were obtained then that act of Parliament whereby the King was to pass away his power of the Militia and raising of moneys upon the People for maintenance of forces by land and sea at the will of the Parliament the ready way to out himself of all power of War and Peace of arming or disarming his own Subjects or any others upon what cause soever contrary to the rights and safety of Monarchies and to the Laws and Statutes of England as hath been before declared But this was as the Psalmist saith to strengthen themselves in their wickedness and to worke their iniquity by a Law The King might as well have granted them jurisdiction over any City or County of his Kingdome independent as unto himselfe and exempt from his authority and the Laws of the Realm and without appeal to his supream Court and he might as well have passed away his peculiar right of pardoning offences and despensing with penal Statutes The Doctors of the Civil and Canon Law say that a King in what grant soever cannot abdicare à se superioritatem suam jus illud supremum Baldus Alexand Angelus alii quod semper praesumitur reservatum nec concedere censetur totum hoc privativè quoad se successores suos ita ut non possit alteri jurisdictionem dare aut potestatem quin ei remanet major jurisdictio potestas quam fuerat translata neque tamen quocunque modo Regalium concessio fiat Sixtinus de Regalib lib. 1. cap. 5. ipsius Imperatoris aut alterius Regis superior potestas ea concessione comprehensa censetur sed potius major quam est concessa illis reservata retenta sit neque potest à supremo Principe licet velit ita concessio fieri ut superior potestas in alium transferatur The fairest and the most specious pretences and the strongest and most legal tyes and formalities make that which is evil in it selfe the most pernicious and abominable damnabilis est malitia quam titulus bonitatis accusat Salvianus this Statute therefore being such and so qualified and so destuctive to that power wherewith Kings are intrusted by God and invested by the fundamental Laws of their Kingdomes and serving most properly to raise and continue discord between the King and his Subjects cannot but appear to all men to be as absurd as pernicious And like this was that other act and of the same leaven and mould with that act of the MILITIA which was made for the continuation of the Parliament until both Houses should agree for the dissolving of it But they did not stay for that agreement for the Parliament was dissolved against their will by the irruption of the soldiers And yet before that they did dissolve it themselves although besides their intention when they deserted the King and his authority and acted contrary to their writ of summons and to the rights of both King and People But more apparently when they suppressed the House of Peers and ran away most part of them together with their speaker unto the protection of the Army and so became the
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
in a lawful war there is jus hostium fas armorum Ticitus and he who is taken prisoner in such war is a lawfull captive not he who is taken by Pirats L. 24. F. de Captivis Cuiac ex Cod. Theod. ed c. ult de restit Spol Decretal l. 27. F. de Captivis Cap. 11. Decretal de Judiciis thieves rebels or in a civil war in civilibus dissentionibus non sunt jura captivitatum Postliminii Quae rapta sunt bello civili dominis si extent restituenda sunt qui bello civili se non immiscuerunt Things gotten by thieves latrocinio subrepta usucapi non posse no title doth accrue unto him into whose hands soever they come non multum intersit quoad periculum animae an quis abstulerit rem per vim ac sciens prudensque rem retinuerit per vim ablatam ab alio quia interdictum unde vi sequitur quemcunque possessorem for L. penult C. de acquir poss malae fidei emptor in vitium venditoris succedit Possessioni violentae insistentes vim continuo exercere dicuntur Time which weareth out all things will not wipe out that impression and canker and raise a just title unto things gotten by robbery and rapine Lib. penul F. de interdict l. ult F. de vi bon rapt Perpetuo persecutio rerum vi ablatarum rei subreptae aeterna authoritas esto And this in respect of a double obstacle vitium in re seu ex re vitium ex persona which cannot be purged and a way opened to prescription L. 24. F. de usurp usu cap. untill that which was thus violently gotten return again into the hand and possession of the owner or his lawful successor So odious doth the Law render violent taking that if the thing perish in the hand of him who committed the violence by chance and without his fault and that in probability it would have perished if it had been returned to the owner again L 1. 34. l. 19. F. de vi et vi armate yet the violent taker is still liable etiamsi sine culpa ejus amissa res sit aestimationem tamen illius rei per interdictum restituere debeat quia ex ipso tempore delicti plu◠quà m frustrator debitor constitutus est periculum rei ad eum indistinctè pertinet licet involuntarium si habeat suum ortum ex voluntario censetur pro voluntario Moreover he who keepeth one under unjust and illegal captivity can gain nothing of him who during that time can grant him nothing for he who offereth violence to his Debtor to get what is his due loseth his debt and falleth into the compass of the Law Julia de vi for his farther punishment L. 12. F. quod metus Si quis rem violenter invaserit si dominus sit rem amittit quam abstulit sin aliena res erat non solum eam reddit ei qui rapinam passus est verum ipsius rei aestimationem Si vinxeris hominem liberum L. 7. Cod. unde vi eum te possidere non puto multò minùs per eum res ejus à te possidebuntur neque enim natura rerum patitur ut per eum aliquid possidere possumus quem civiliter in mea potestate non habeo L. 23. F. de adq poss He who hath cast a man in prison ut aliquid ei extorqueret quicquid ob hanc causam factum est nullius est momenti L. 22. F. Quod metus Timer vinculorum restitutionem parit si quis dedit aliquid vel se obligavit ubi in furto adulterio vel alio flagitio deprehensus erat timuit ille mortem vel vincula But those promises contracts and transactions made in prison between the Creditor and Debtor cannot be said to be void or voidable by Law as done out of fear because he is detained in prison for imprisonment is ordained for Debtors and therefore the Debtor is presumed to draw it justly upon himself and if he made a promise or contract out of fear hunc sibi metum ipse infert Vt in l. 21. in principio F. Quod metus Promises and contracts made through fear of an unlawful restraint are void in law which fear is not cleared and taken off untill he be restored unto his full liberty and the cause of his fear taken away for until then it is still presumed that this fear had its influence upon all his actions although they seemed voluntary Eadem causa metus manente Decius ad reg jar 40 sic alti Decis Rotae Rom. purgari per temporis intervallum metus non praesumitur nec per ullos actus purgatur nisi tales sint ex quibus nulla alia probabilis praesumptio capi possit quam purgationis metus What is a just and probable fear is a question of fact rather then of Law although questinos of fact oftentimes draw after them questions of Law So as in this of fear as in that other of fraud before mentioned the Judge is to determine after due proofs and consideration had of the quality of the persons L. 1. l. 5. F. Quod metut l. 3. F. ex quibut caus Maj. and other circumstances The Law in general saith that fear is mentis trepidatio instantis vel futuri periculi ob causam And that a just fear is timor majoris malitatis ut timor mortis vel cruciatus corporis and doth express few cases of a just fear I find this to be one cause when a man seeth or heareth armed men come towards him and flyeth for fear L. 3 S. 7. F. de vi armata Lib. 3. 7 de usucap L. 1. S. 29. F. de vi vi arm s 33. S. 2. F de usucap L. 29. S. ult locati L. 4. F. de vi publica it is presumed he was expelled by force and arms si possessio fuit ab his armatis occupata but another Law saith sufficit terror armorum to make a forcible ejection Is qui metu turbae perterritus si fugerit videtur vi dejectus esse Imo si homines armatos venientes extimuerit ita profugerit licet nemo ingressus fuerit vi dejectus videtur quia in metu non consideratur eventus sed justa causa timoris ii qui coetum concursum fecerunt vel homines ad hoc accommodaverunt tenentur de vi publicâ All this may sufficiently serve to justify the King and his party in leaving White-Hal and the Parliament after they had been often assayled by a tumultuous rout having not power to suppresse them and those that had did incite them and made their advantage by them qui crimen Causa 23. quast 8. cap. 12 Seneca cum potest emendare non corrigit ipse committit aeque dignumesse ponâ qui ab alio admotâ vi ad suum lucrum utitur ac
King and his Subjects which cannot be dissolved by any law or custome That Kings cannot alienate their Kingdomes nor Subjects renounce their allegeance nor bar the next successour of the Crown Such is the inseparable relation between the King and his Subjects that as they cannot renounce or withdraw their allegeance from their Soveraigne Bodin Principis aeterna autoritas in subditos so cannot Kings alienate their Kingdomes or any part thereof although they are not restrained by positive Laws yet are they by a universal Law not made but risen up in the foundation of all Kingdomes as the Lawyers say Baldus Jason Casan Cat. glor mundi alii generali omnium Regnorum lege cum ipsis regnis nata quasi jure Gentium Lex fundamentalis immutabilis cum ipsâ rerum naturâ unà viget consenescit interiit Rex qui in sua Coronatione juravit jura Regni sui honorem Coronae illibata servare postea nihil agere censetur si quae jura bonáve Regni sui alienaret Decretal de jurejurando c. 33. Cujac ad dic cap. 33. etiamsi jusjurandum interposuerit de nunquam revocanda alienatione liberum tamen ei esse quandoque revocare praevalere prius juramentum quod fuit legitimum posteriori quod illegitimum est The relation between a King and Subjects maketh a union and reciprocation so strong that there can be no admittance of a separation Correlatum cuilibet relato respondet uno posito ponitur alterum in correlativis idem judicium and what is disposed in one is so in the other when there is the same reason for either And so cannot a King and Parliament and all the Powers in earth bar the lawful Successor from the rights of Soveraignty the individual and sacred rights of the Crown Constagio del union di Portugal Thuan hist neither bind nor limit the succession Henry the Cardinal afterwards King of Portugal having no issue and seeing diverse in competition for the Crown granted a Commission to some of his own Subjects to determine the right of Succession after his death and unto some others he gave another Commission to govern the Kingdome after his death until the right of the succession was determined Both these Commissions with the opinions of his own Lawyers for their justification were soon after his death over-ruled by the sword and were also held void by Law because he sought to raise a body in his Kingdome without a head and would praire successorem suum and raign after his death Lib. 6. F. de jurisdict L. 13. F. de jurisdict for by his death his jurisdiction and authority was determined and his Commissions void Potestas delegata morte delegantis finitur No Magistrates can give Commissions for acting any thing after their death neither upon a day which falleth after they are out of their authority whereupon it is declared quòd qualibet dispositio censetur facta eo tempore in quod confertur Baldus alii decis Rotae Rom. 240. 193. Tom. 3. Farinacii nee valet quae in id tempus procedit quo res non erat amplius disponentis quia paria sunt aliquid fieri tempore inhabili prohibito vel tempore habili concesso conferri in tempore inhabili prohibito The Commission for determining the Succession made the Portugals who were parties Judges for they were of the material part concerning which the controversie was and whatsoever they determined was void Lult F de Jurisdict l. ult Cod. si d non competenti Judict non paretur jus dicenti si supra suam jurisdictionem jus dicere velit nemo plus juris ad alium transferre potest quam ipse habet The Kings Commissions and Mandates as also all Offices unless it be those which by law are excepted are void by his death especially those which are granted in vim justitiae administrandae Mandatum Principis in vim justitiae datum Decis rotâ— Romanae Cassaneus ad consuetud Burgund alii Decretal de rescriptis c. 5. C.S. Tamen si cuiquam morte Principis expirat secus si in vim gratiae Sed gratia data ad beneplacitum concedentis per ejus obitum per quem ipsius beneplacitum omnino extingnitur eo ipso expirat And if he cannot bind himself then not his Successors nisi in casibus à jure consuetudine permissis sunt de consuetudine Principatus de natura officii Regii as the Lawyers say By this we raise a doubt concerning the validity of many matrimonial contracts made by Princes whereby they endeavour to bind or alter the succession of the Crown which is not ruled by those lawes which are for private mens descent and inheritance Whether use and common practise may justifie these contracts of Princes I will not dispute Gail observat lib. 2. Pro bono pacis inter Principes componenda vel tuendae tolerari matrimonium quod alià s erat illicitum Cujac Comment ad Decretal tit de Desponsatione Impuberum cap. 2. unde versus Pax ut servetur moderamen Juris habetur cap. 2. Pacta Statuta de mutua successione in casu deficientium liberorum masculorum inter Principes Comites Barones Imperii in usu esse frequenti consuetudine hominum memoriam excedente confirmata valere We find not the like Laws or customes in other kingdomes except the Law Salick in France for the common opinion is that Statuta excludentia faeminas ex haeredationibus odiosa sunt Pactum in dotali instrumento ut filia contenta sit dote nullum ad Paterna bona regressum haberet L. 3. G. de Collationib juris autoritate imprâ—batur Et pactum de non succedendo jure civili improbatur Si Pater instrumento dotali comprehendit filiam ita dotem accepisse ne quid aliud ex haereditate Patris speraret eam scripturam jus successionis non mutasse constitit privatorum enim cautionem legum autoritate non censcri leges non mutare Lult F. de suit legit haered By these contracts Princes please themselves for a time out of a desire to advance some designs and afterwards repentance and dissentions do often follow Unto this may we add those accords and transactions between Princes for exchange and alienation of some part of their dominions which come by descent from their Ancestors These alienations have commonly the like success as the former yet are they much to be favoured when they pass between Princes upon equal tearms and are for the procuring of peace and ending of controversies the consent of the Subjects on both parts concurring nam Dominus sine voluntate vasalli feudum alienare non potest sic Princeps subditos suos alienare non potest quia non tantum praedia sua domini jus L. 2. tit 34. de Feud sed sic ingenui homines alienantur
to justify rebellion and to depress the authority of Kings as those Romish Doctors do to uphold the Popes Spiritual power which is as they say ex institutione speciali pendente à divina voluntate Instituentis Suarez de legib alii secund secundae quaest 10. artic 10. quaest 12. artic 2. quae ab inferioribus mutari non potest But the Regal power they will not have to be ex institutione divina sed à natura ita data à natura ejus autore ut possit in ea mutatio fieri pro ut communi bono magis fuerit expediens quia haec potestas ex vi solius juris naturae est in hominum communitate and although both powers may be said to be of God yet the Popes Spiritual power is of God immediatly but the regal Power mediante naturae lege Aquinas saith that Infidel and Apostate Princes although they have yet cannot retain dominion over the faithful but being excommunicated for Apostacy their Subjects are freed ipso facto from their allegeance Although he doth acknowledge that Infidelity considered in it selfe doth not abolish the right of dominion which Infidel Princes have over the faithful because it is ex jure gentium proveniente ex naturali ratione Jus autem divinum quod est ex gratia non tollit jus humanum quod est ex naturali ratione and yet notwithstanding the Church hath power to deprive them of this right as cause shall appear Thus do they labour to obscure and suppress the truth and perplex themselves and others with those improbable distinctions and pernicious propositions not regarding how they have been confuted and that by setting forth these propositions they raise Principles of sedition and rebellion and leave Kings in the worst condition of all men by subjecting them to the amplitude of the power and to the exorbitancy of the wills of their two Masters the Pope and the People to punish Tyranny and Apostacy and to witness accuse define and judge thereof * In Rege Ethnico vera potestas est jure gentium idque fine ordine ad potestatem Ecclesiasticam Dominia ut in fide non fundantur sic in fidelitate non evertuntur Privabit Censure Pontificis societate fidelium quà fideles suni bonum illud Spirituale ab Ecclesia non privabit obedientia subditorum quà subditi sunt bonum hoc civile est nec ab Ecclesia Tortura Torâ—â— Episcop Cicestriens To set a colour upon rebellion they affirme that the People do but so transfer their power as they still retain the habitual power in themselves This King James in his Declaration to all Christian Monarchs calleth the Principle of sedition and unto this may be added another of a more ancient date but of the same mould That allegeance is due to the Politick capacity of the King and not to his natural Person Upon this assertion was grounded the damnable opinion and practises of the Spencers in Edward the Seconds time and very probable it is that this opinion made the way more smooth and easy for deposing that King by the infection it infused and the influence it had upon that Parliament Although not long before Rotula Parlamenti those Spencers were amongst other treasons charged with publishing in writing That homage and allegeance was by reason of the Crown and not of the person of the King which they said did appear in that no allegeance was belonging to his Person before the Crown descended and so they would infer that the People had power to depose the King The many absurdities in this wild argument the laying it open doth both discover and carry with it the confutation if there had not been enough said against it before From these false Principles may arguments be as well drawn for violation of mens faith and duties enjoyned by divine and humane laws and for the weakning of the authority of all Magistracy and power although it be given by themselves and intended to be exercised for their behoof The Politick capacity of the King which never dyeth never ceaseth is inseparably annexed unto his natural person untill his death and both are conjoyned at the very instant that the right of the Crown descendeth unto him which giveth a new qualification to his natural person and life and vertue to his Office and function His natural person est organicum instrumentum Baldus alii cum Legistis Anglicanis personae ejus intellectualis publicae seu politicae The power office dignity considered simply in it self cum exclusione subjecti cui naturaliter inhaeret non est nisi abstractum quiddam remoto concreto This Politick capacity considered in it self is but as the dead letter of the Law without the conjunction of the natural person which giveth it life and vigor In respect both of his natural person and Politick capacity the King is termed in Law Lex loquens Lex animata and his authority and office indesinens Consulatus Allegeance is therefore due unto his natural person to which his politick capacity is as it were appropriated and incorporated both of them give and receive vertue to and from each other His natural Person Coke case Post-nati his Politick capacity his Crown and dignity in our law-books and Acts of Parliament are taken for one and the same often Nihil ne minimum quidem inter Regem Regiamque potestatem esse Thuanus lib. 105. nec Regiam dignitatem separatum quiddam extra administrationem Regni dici aut singi posse There is no difference between the King and his Kingly Power and office by an indissoluble bond are conjoyned his natural person and his politick capacity his person and his power his person and Majesty his person and Crown These all are naturally conjoyned by Gods ordinance and by the Institution of Monarchy and a curse is laid on them who separate those whom God hath joyned The King our Head and the life of the Law by the virtue and influence of his Regal power he onely giveth and preserveth the benefit of Lawes at home and Leagues abroad made by him with Loraign Nations And yet we see to the admiration of men that our Rebellion in England of the largest extent that ever was by an example not the like to be found hath claimed and obtained the benefit and advantage of all leagues formerly made by their Soveraign with other Princes and States who were in no age so apt to comply with Rebels for their profit and advantage without regard of their honour neither the incouragement they give to others of rebellious spirits or of the evil example which hath and may justly come home unto themselves Foraign Princes as they are not Judges so ought they not to make themselves parties in those odious quarrels between Princes and their Subjects They ought to be peace-makers which is one of the most glorious titles that can be given
to Princes Leagues are made for the conservation of peace mutual aide commerce and trade They have more of reality in them then to be accounted but as meer personal obligations they mutually oblige as they mutually benefit the Princes their Successours and subjects And therefore to hold that all Leagues are void by the death of those Princes that made them is a great and dangerous errour Imperator percussit foedus videtur Populus percussisse Romanus foedere continetur Seneca The mutual benefit of both Prince and People is conjoyned and involved one neither can nor ought to take benefit by them with the excluding of the other When Henry the Third of France was dead the League made by him with the Switzers did continue in force Thuan. lib. 97. and upon this reason quia non tam cum Henrico quam cum Corona Franciae contraxisse quae nunquam intermoriatur ita Rex dicitur nunquam mori sed mortuum Regem vivo proximo regnum tradere These contracts which are juris Gentium juris publici quia ex publica causa sunt as are leagues do bind each other and their Successours in many cases Baldus Peregrin de Jure Fisci Gentil de Jure bell without express mention quia facta sunt non nomine proprio Principis sed sub nomine dignitatis suae Reipublicae sunt de natura consuetudine ossicii dignitatis Regiae in figura magis Principatus quam suae propriae personae Tenentur successores aut numquid nihil est cautio ista toties usurpata in foederibus Ayala Grot. de jure bel Tenentur successores per has publicas Conventiones quae non nomine proprio sed Reipub. incuntur quae aequè repraesentatur per successores ut per cos qui sunt hodiè It were most unjust and absurd to deprive Princes who are the League-makers and principally concerned in them of the benefit of their leagues by their Subjects rebellion who to receive any benefit by Leagues or Lawes is contrary to the intention of all who make them and destructive to the Majesty and security of all Monarchies and States Beneficium quod habeo propter te Gentil de legationibus non possum uti contra te Cum Praedonibus rebellibus non est jus legationis foederum Delinquendo non acquirenda sunt jura nam jura violantibus jus non violari sed potius redâ—i si non praestetur In talium scelerum noxios nullam vim injustam esse The Romans complaining of the injuries they had received from the Hircani who answered the Romans as did the Sabines That they had made a League wich Tarquine the Roman King whom they having deposed and abolished the Regal Government Dionys Halicar Livius those Leagues were determined with the People of Rome Although the league might be in force with and for the benefit of the King expulsed and his Heirs and Successors Grot. de Jure belli cum Rege initum foedus manet etiamsi Rex aut Successor regno à subditis sit pulsus Jus enim Regni penes ipsum manet utcunque possessionem amiserit The Emperour Justinian answered the Vandals Procopius requiring the benefit of a League that he would break no league with them neither make war against them but against the Tyrant and Usurper who had dispossessed their lawful King and held him in captivity The Roman General Quintus answered the Usurper of Sparta Livius We have made no league nor friendship with thee but with Pelops the lawful King for the very mention of Peace or amity with a Usurper our ears cannot endure And thus when Spartacus such another had gotten strength and made wars by the help of a rabble of thieves against the Romans he sent to Cressus to make a league with him but he rejected it with much scorn as most unworthy the Roman name Tacitus quanquam tunc ingentibus bellis labasceret Respub non tamen datum erat Spartaco ut pacto in fidem reciperetur non alia magis sua Populi Romani contumelia So the Emperour Tiberius was exceedingly offended at the presumption of Tacsarinas the great African Robber for sending Ambassadors unto him Tacitus Florus Indoluit Tiberius quod desertor Praedo more hostium ageret for such are in the rank of those qui foedus humani generis ruperunt Some are of opinion that in an Aristâ—â— aâ—â—cal or Democratical Government if civil war happen both parties seeming to be of equal right and ballance as in that between Caesar and Pompey the Guelfs and Gibelines may send and receive Ambassadors for they are not in the condition of Rebels etsi pereas dissentiones Respublica laeditur L. 21. F. de Captivis non tamen in exitium Reipublicae contenditur qui in alterutras partes discedunt non sunt vice hostium as was said before when two are in competition for a Crown Yet are there diverse examples of Princes and States that in this case would decline all dealing with either party unless for their own interest and advantage and answer as those of Marcelles did unto Caesar in his war with Pompey that they being the Allies of the people of Rome it did not belong unto them to enquire which had the justest cause If either of them would come as friends to Marcelles they would so receive them but if either of them came in any hostile manner they should find from their State no friendly complyance They were not obliged to aid either Caesar or Pompey although they were the Allies and confederates of the Romans neither ought any to have engaged themselves in that pernicious faction of the Guelfs and Gibelines unless it had been to suppress them The case was more ambiguous in the war between the Houses of York and Lancaster yet so as we may not take for a rule that shift used by Lewis the Eleventh who being required by Edward the Fourth to send him aid against Henry the Sixth according to a former league between them answered that the League which was made by him was with the King and Kingdome and he held himself obliged to aid him onely unto whom the Kingdome did adhere Comines Bodin and declare for their King like that saying of an Earl taken Prisoner at Bosworth field who being demanded why he took Arms for the Usurper Richard the Third answered that if the Parliament had set the Crown upon a stock he would have fought for it Camdens Remains The Parliaments in those times did not take on them to dispose of the Crown and so did the Parliament answer Richard Duke of York father of Edward the Fourth when he pressed them to declare his Title against Henry the Sixth Those who affirm that the change in the State and Government doth dissolve former Leagues seem to affirm it upon such change as is fairly effected
Whether by the lawes divine and humane forbidding the resistance of the soveraign authority justly established we are thereby restrained from all resistance by armes in defence of our goods estates just rights and liberties when the resistance cannot be made without hazard of other mens lives and of sedition and civil war I will not insist upon the decision thereof it is a work of long labour and not much pertinent I will add this as a most undoubted truth that a Civil war or rebellion doth most commonly produce more pernicious effects in one year then either the insufficiency or Tyranny of a Prince can in an age It was truly observed that the Roman State suffered more in those seven months of civil war raised by Sylla and Marius then in the fourteen years of that bloody war which Annibal waged in Italy at their own doores although their loss and damage was inestimable Brutus perswaded a wise man his friend to joyn with him in the Conspiracy against Julius Caesar his friend answered him that the government under a Tyrant was not so bad as a Civil war Our fanatick Polititians who teach men rebellion and to flatter and deceive the People and to effect their own designes do say that the supream power is originally in the People and habitually inherent in them and is derived from them so as they may chastise and change their Kings and assume again their power They do not consider how by these improbable assertions they weaken the bonds of all lawes humane and divine and cut the sinewes of all magistracy and government how they do incite the People to rebellion and preserve the seeds thereof alwayes in their heads and hearts how they in leaving Kings to stand or fall according to the changable humours of their own subjects who against common reason they make to be judges accusers witnesses and parties they leave Princes in the most miserable condition of all men And the People also ever desirous of innovations and prone to all licentiousness when the reins are but slackned they do expose to the fury of their provoked Soveraign by their rebellion and to the loss of their just rights and liberties and perhaps to intolerable servitude under the sword of a Conquerour The Rivers which by some violent accident have broken their bounds are destructive to themselves and to all round about them They run on still and scatter themselves and never come to good until they return to the right Channel and are inclosed and fensed again within their proper and just bounds assigned unto them by God and Nature I could not in this discourse insist upon the framing and deducing of arguments although they were necessary for confirmation of the truth and confutation of falshood neither in drawing my matter into an exact method my desire was to relate the truth and to rectify the judgments of the ignorant for Gods glory and the good of my Countrey and to convince those who are perverse not presuming to teach the wise and learned unto whose Judgments I do submit THE CONTENTS CHAP. I. INnovations in Government Publishing of false Newes and Prophesies Pretenses of Reformation Sects and Divisions in matters of Religion Quarrel against Episcopacy Page 3. CHAP II. Of the Presbyterian Government in the Church The practice in the Primitive times Touching the election of Pastors and Ministers in the Church and their maintenance by paiment of Tythes Pag. 11. CHAP. III. The inconveniences that happen by the alterations of Government in the Church and Common-wealth Of Ceremonies used in the Church-Service Of tender consciences Of the coercive power of the Magistrate in matters of Religion Pag. 16. CHAP. IV. Of the changes in Religion in England And by Luther And the toleration of divers Religions Pag. 31. CHAP. V. Of the use of Parliaments Of the danger that cometh by the abuse of Parliaments and the Factions that therein arise Pa. 35. CHAP. VI. The Right that Bishops have to sit in Parliament Pag. 40. CHAP. VII The necessity of having all the Members present in Parliament or the greater number of them and the danger of Consederations Associations Ingagements and other indirect practises contrary to the Rights of the King and the liberty of the Subject Pag. 49. CHAP. VIII Of Seditions and seditious Assemblics and the punishment thereof Of the power of the King in that which concerneth the Militia and the Arms of the Kingdome And of other Rights of the Crown Pag 57. CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patents or Grants Pag. 63. CHAP. X. The Caese of Subjects in Rebellion against their Soveraign and the errour of those that would draw more crimes within the compass of Treason then they ought Of Acts made and past under the power of a Vsurper Pag. 76. CHAP. XI Against any power pretended to depose Princes Of the Allegiance of the Subjects Of the oath of the King and of his Coronation Of strangers joyning in Arms with Subjects in Rebellion against their Soveraign Of oaths and ingagemeuts made to Tyrants and Vsurpers Pag. 85. CHAP. XII Of those who onely accept of Offices and Imployments under Tyrants and Vsurpers Pag. 100. CHAP. XIII Of the inseparable conjunction and relation between the King and his Subjects which cannot be dissolved by any law or custome That Kings cannot alienate their Kingdomes nor Subjects renounce their allegeance nor bar the next successor of the Crown Pag. 103. CHAP. XIV Of the Beginning Continuation of Kingly Government P. 111. CHAP. XV. Of Prescription as well upon Land as Sea And the Right and Jurisdiction that the King hath in the Sea over the Sea P. 116. CHAP. XVI Against the pretended Power of the People to Elect their Prince or to depose him Of the Norman conquest of England and of Leagues between Princes and of Aides given to Subjects in Rebellion against their Soveraign Pag. 121. CHAP. XVII Of the King and of his power in Parliament Pag. 136. CHAP. XVIII Of the Kings Prerogative Pag 141. CHAP. XIX Of a Civil War and of the effects thereof Pag. 146. CHAP. XX. No pretences whatsoever can be just ground of a Civil war or Rebellion Pag. 153. FINIS