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
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
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
by which peculiar law the eldest is preferred without respect of the whole bloud Neither doth infancy worke any disability in the Person of the King Lord Chancel case of the Postnati or by being born an alien and all this in respect of his politick capacity adherent to his natural Person and so all defects are purged and all impediments removed by this regal right of succession CHAP. XIV Of the Beginning and Continuation of Kingly Government IF this supream power as they affirme be still inherent in the People and that they had this supream and original power immediatly from God or by his will and approbation and that the power of rule and domination by vertue of the Law of nature is in the community of men and in no particular Person and although they do transferr this power yet they may when there is a cause assume it again How then can they reconcile themselves with St. Paul who saith the Powers are of God are ordained of God or with Saint Peter who saith whether it be to the King as the Supream And how can they reconcile their doctrine with that which Aristotle and other learned men affirme that by nature most men are subject and servants to others minùs sapientes minùs perfecti natura ipsa sunt servi sapientibus subditi ut ab aliis regantur and these thus Subject are the greater number Aquinas Servitus est naturalis ratione utilitatis consequentis scilicet quod quis regatur à sapiente licet est contra primam naturae intentionem est tamen secundùm naturam juxta ejus secundam intentionem ita est ordo naturalis in hominibus ut serviant aliqui Persona est domina vâ—l serva ratione naturae Fst utilis servitus cùm improbis aufertur injuriarum licentia domiti se melius habebunt quia indomiti deteriùs se habuerunt Augustinus Licet initio homines natura liberi nascebantur jure naturali non trant dominia distincta in ipso quidem statu naturae primo non tamen ex hoc negatur posse jure humano gentium hominum crescente malitia statui servitutem fieri dominorum distinctionem idque ratione naturali factum fuisse apparet ex eo Covsruvias quod utile valdè Reipub. sit societati humanae L 19 de Civ Dei cap. 15. And so Saint Austin Nullus natura in qua priùs Deus hominum condidit servus est hominis aut peccati verum poenalis servitus ca lege ordinatur qua naturalem ordinem conservari jubet perturbarive vetat quia si contra cam legem non fuisset factum nihil esset pâ—nali servitute coercendum * Servitus est contra jus naturae propriè quoed statum innocentiae quò ad statum post peccaium non est con tra jus naturale Imò servitus aliqua saltem quo ad statum post peccatum dici potest secundum jus naturale quatenus est quaedam paena determinate jure humano pro delicto quod jure naturae castigandum est ut sentis Thomas Navarrus Seeing therefore that the best and wisest men are and ever were the fewest in number and that the greater number are by the law of nature and ought of necessity for the preservation of human society to be in subjection or in servitude and cannot have a right unto liberty in respect of those many imperfections and vices which do raign in them how can they have a right unto domination and rule and to transfer a power which they never had neither were ever capable of it unless it be such power as they have lately usurped in our Countrey whereby they have out in sunder the reins of †As did those ten Tribes who usurped upon the lawful progeny of David as they did upon Gods right who said unto them Ye have set up Kings but not by me and made Princes that I knew not Hosea 8.4 Government and brought all things into confusion Sin cast us all into servitude and out of this servitude all could not arise and have a natural right unto either domination or liberty What power of domination can we find that God gave at first to his selected people the Jews or was in them by nature In the time of the Patriarchs all supream terrestrial just power Paternal Sacerdotal Regal was in them They were before the Law given in the place of Kings and Priests What power can we find that God gave unto his people or was in them when he gave Kings to rule over them a government most agreeable to nature and which carrieth with it the most appearance of the divine approbation and imitation a Government in the infancy of the world proceeding immediately from the Patriarchical derivatively and ex traduce We find in the first age of the world after the Floud mention made of Kings which ruled every where Genes 14. Deut. 17. and of the first war wherein many Kings were ingaged and no mention of any other Government then Regal Genesis 36. Deut. 14. De Civit Dei lib. 16. c 17. c. 3. There were diverse Kings of Edom and in all the Countreys round before there was a King in Israel In the time of Abraham saith St. Austin eminentia regna erant Sycionorum Egyptiorum Assyriorum and before that time rose up Nimrod saith he factum erat initium regni ejus Babylonici And here by the way we meet with an argument of the Anabaptists which is that seeing from such a Tyrant Monarchy and Magistracy had so evil a beginning it ought not to be held lawful But there is a difference between the powers which are of God and the administration or the evil execution of those powers as there is a difference between a lawful power unjustly used and an unlawful power justly used for as St. Austin saith the malignity of a tyrannical usurpation shall never be purged and made praise-worthy although the usurper use all clemency and justice in his Government nor the Regal power ever be subject to just reprehension although a King become a Tyrant Causa 14. quaest 5. cap. 9. Aliud est injusta potestate justè velle uti aliudest just â potestate injustè velle uti Although Tyranny did begin by Nimrod yet Government and Magistracy proceeded not first from him It was established by divine decree before him The government of the Fathers of the Families was before Nimrod All the Progeny submitted to the Paternal and Regal government of the Head and Founder of the Family From hence was the original of Regal government and a natural reason and cause for the producing and continuation thereof which reason had its operation amongst the heathens In the beginning were Kings Salust Tacit. lib. 3. Ann. nam in terris nomen Imperii id primum fuit But after equality and moderation were laid aside and ambition
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
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
with a free and unanimous consent of all or by the immediate hand of God when none are left to continue the Succession and all former rights are extinct but not of such change as is inforced by a detestable rebellion Alb. Gen il disput ad leg Jul. Majestatis de jus belli lib. 3. cap. 23. Grot. de Juce belli lib. 2. cap. 16. Rex Regno pulsus vel in carcere positus ab altero Rege perdit possessionem quo ad aliâ—s Principes sed non ex rebellion subditorum suorum sic fuit responsum à Galliae Rege Edwardo Angliae cum de Regno expulsum ab Henrico Rege sibi regem non viâ—â— ri Sane cum Rege initum foedus manet etiamsi Rex idem aut successor regns à subditis sit pulsus Jus enim regni penes ipsum manet utcunque possessionem amiserit If the State and form of Government be changed as if an Aristocratical Government be changed into a Monarchical the former Leagues remain in force as some conceive quià manet idem corpus Grot. de jur bel lib. 2. c. 16. L. 38. F. de solutionibus etsi mutato capite but yet in all stipulations and pronuses this condition is implyed if it be not expressed notwithstanding that all stipulations are stricti juris tacitè inesse videtur si in eadem causa si in codem statu res personae maneant lest men should remain obliged contrary to their intention when they bound themselves and be by alterations hapning tyed to the observation and performance of that which is injust impossible or absurd Neither can it be said saith Aristotle to be the same Common-wealth if there be not eadem ratio Reipublicae sed alia forma Reipublicae Mutata forma propriè interremptam esse rei substantiam Res abesse videtur eujus forma mutata est ideò si corrupta redanta sit vel transfigurata L. 9. F. ad exhib res abesse videtur * L. 13. F. de verb. signif si sit Identitas materiae diversitas formae res diversa esse dicitur ut L. 18. S. 3. de Pignorat act si sublatum sit aedificium eadem specie qualitate reponatur alterum si quis strictiù interpretetur aliud est quod sequenti loco ponitur L. 20. S. 2. F. deservitut urb The Roman Empire often changed in the form the Empire remaining as is affirmed although it passed to Kings to Consuls from the Senate and Consuls to Emperours sometimes chosen by the Senate sometimes by the Souldiers but it cannot be said to remain alwayes in eadem specie natura The Common saying of the Divines when the Preisthood was changed the law was changed mutato Sacerdotio mutatur jus and so may it be said when the Common-wealth is changed the rights of the Common-wealth are changed although not abolished An idem corpus sit an eadem quantitas L. 11. L. 12.13.14 De exceptione rei Judicatae mutatio personarum aliam atque aliam rem facit L. 22. De excep rei Judicatae an eadem causa petendi an eadem conditio personarum quae nisi omnia emcurrunt alia res est Whatsoever mens opinions are of these changes in Common-wealths and notwithstanding these rules of law before declared Princes and Common-wealths have and they ought to have an eye unto all changes and alterations in States and Common-wealths especially unto violent changes and usurpations amongst their Neighbours for men may justly be restrained and opposed in changing or abusing their own when the interest of another is impeached thereby ubi capiat aliena Respublica detrimentum Gentil de jure belli lib. 1. C. 16. vel siquid iniqui in alios caderet upon which reason Queen Elizabeth in her Declaration printed excused her sending aid to the Hollanders although that war seemed to be just on both sides by that which was delivered in the justification of both parties For by her aiding of them she had their assistance against the King of Spain her enemy and the more hope of obtaining a good peace for her self and those her nearest neighbours and of her religion and the most ancient and continual freinds of the English so that if their condition were changed by conquest their ancient trade and commerce with England to the great hurt of England would be cut off and destroyed through their disability by servitude imposed on them Pericles in his Oration to his Countrey-men said Let us suffer those Cities which are of our association to remain free if they continue so Thucydides l. 2 as they were at the time when we made confederation with them * The Romans in their Leagues did usually insert this Article that the confederates should not suffer the subjects of each other to bear arms against the other neither receive the Traitors fugitives or rebels of each other and so was it in the league between Henry the Eighth and Francis the First but those Kings had in their league this addition That if Civil war did arise in any of their Countreys none of the Confederates should meddle therein unless the war were maintained by some forraign Prince Hist of Henry the Eighth If Princes may have just cause to help the Subjects of another Prince yet as Movillier said unto Francis the First the act whatsoever the intention and reasons are is subject to much envie and misinterpretation as appeareth by divers examples There may be as just cause for a Prince to help another Prince especially being deposed exiled or oppressed by his subjects and with much less envie and more honour King Tarqui â—ing expelled Rome fled unto King Porsena and desiring his aid advised him not to let pass the new taken-up course of expelling Kings by their own subjects adding also Livius lib. 2. that unless Kings would maintain the right of Kings with as much vigour as subjects sought to advance their own liberty there would soon ensue an universal confusion and all rights sacred and prophane would be turned upsidedown and nothing would be indured in States and Common-wealths which was eminent above other whereby would also ensue a total subversion of Kingly government a thing both with God and man most beautiful and excellent Justin Thus Darius vanquished by Alexander the great and afterwards murdered by some of his own subjects when he was near his death he sent unto Alexander to revenge it inasmuch as it was against his honour to suffer subjects to give an example so pernicious Livius lib. 4. The Romans were so quick when sedition and civil war brake out amongst their neighbours of Ardea in league with them that they sent speedily their Embassadours to appease the fury who took off the heads of the Authors and confiscated their estates to the Treasury of Ardea Ovidius Proximis à tectis ignis defenditur agrè Paries cum proximus ardet tunc
great cause for a King to use his extraordinary power without the compass of positive lawes as there was for the Romans to constitute such an extraordinary and supream Magistrate For as the prerogative of the King ought to give place to the publick good and safety of the people so must the rights and liberties of the people when necessity requireth give place to the Kings supream authority Subditorum jus supereminenti Regis dominio subest Grot. de jure belli lib. 2. C 14. quatenus publica utilitas desiderat Nam ut aequitas simplicitèr cedit aequitati summae ita jus eedit juri supremo maxima aequitas est lex suprema dicunt Doctores quae maxime ad religionem nam summaratio est ut in lege dicitur quae pro Religione facit spectat ad publicam utilitatem ad hominum societatis vinculum conservandum Moreover those who would abolish the Kings prerogative would take away with it one most proper and necessary branch thereof which is his right of granting priviledges dispensations qualifications exemptions from the Rigour of positive lawes so as men shall expect no farther then the letter of the law granteth whatsoever their case or merits are whereas there is often as necessary use and as great justice in priviledges dispensations and exemptions as there is of and in the Lawes themselves and peradventure more For the most perfect positive Lawes cannot provide for all accidents The Roman Praetor had power Cicero L. 1. F. de Just jure as equity required aequitas justitiae maximè propria est ut juvet jus civile ut suppleat utque corrigat in private mens cases and so is it in Courts of equity And shall the Prince be restrained from the use of equity from helping supplying or correcting the Law when the publick good or the preventing of injury to private men requireth it and from dispensing with the rigour of penal laws L. 1 l. 9 l. penul Cod. de legibus Novel 82. cap. 10. L. 12. F. qui et â— quibus Cuiae alii ad dic l. 12. Faber adregul Juris whose right it is leges condere conditas interpretari duritiamque ipsarum mollire lenire temperare Judices non debent esse clementiores legibus In lege dicitur quod quidèm perquà m durum est sed ita lex scripta est and it was not in the power of the Judges to help it for such a strict and hard Law onely the Prince could mollifie when the words of the Law are so clear and precise that it cannot receive an interpretation ex bono aequo it were very absurd to take away all particular priviledges and exemptions from the general rigour of sundry Lawes and it were infinite to set down those good Laws founded upon reasons drawn from the Law of nature which nevertheless upon due consideration of circumstances are justly restrained from their general force without any violation to the reason the life and the soul of those Lawes as the Doctors say of the Civil and Canon Lawes So as there is a dispensation of Justice requisite in point of Justice as well as there is a dispensation of Grace whereby the bond of the Law is not released the force and obligation of the Law still remaining onely the reason of the Law which is the soul of the Law in some particular case ceasing the Law is justly interpreted in such case not to have place but to have the influence and vertue thereof limited or suspended according to the true meaning of it and the intention of the Law-maker lest injustice or absurdity follow I grant that there is often an abuse of the Law and of the equity and power given for interpretation mitigation and dispensing with Lawes under the countenance and colour of equity and justice plerumque sub authoritate juris perniciosè erratur L. 91. F. de verb. oblig ubi quaestio sit de bono aequo And there is an abuse of the Regal power and prerogative quid non dominantium cogitavit cupiditas ubi malè agitur necessitatis obtentu Plinius licita ex necessitate in argumenta trahuntur as saith the Law And all this is acted under the colour and pretence of reason of State which according to the Italian saying Ragion di Stato guasta tutto il Mondo Reason of State destroyeth the whole world These are commonly called Machiavillian counsels State-impostures stagitia dominationis as were those which Proculus Tacitus Titianus and Nero used when they could find neither Law nor reason to justifie their will ad jus imperii ad vim dominationis transibant And in later ages the exorbitant actions of Princes are justified by Sycophants by reason of State and by the virtue of their absolute power different from their legal and ordinary power Baldus Innocent Alciat ad l. 2. Cod. de in jus voeando alii De plenitudi ne potestatis Pontificis non oportet sermonem effundere quia superfluum est solem facibus adjuvare Extravag Gloss ad tit 1. Plinius ad Trajan Imp. Plenitudine potestatis Princeps ad malum utendo dicitur plenitudo tempestatis non potestatis nam clausula de Plenitudine potestatis inserta intelligitur de potestate justa non Tyrannica Inest enim plenitudo potestatis in dispositione bonitatis non pravitatis posse injustum facere potestas non dicitur sed infirmitas deficientia boni Plenitudo potestatis non extenditur ad iniquum neque exercenda est nisi praemissa clave discretionis quae regulanda est per jura ex bono aequo Sed in Jure nostro nulla est mentio plenitudinis potestatis Vt foelicitatis est quantum velis posse sic magnitudinis velle quantum possis But these corruptions and abuses are not sufficient causes for the abolishing the good and ancient institutions in Common-wealths or the proper and necessary rights of Monarchy unless we will imitate our late Reformers who rather have chosen to cut off from the body that which was necessary then endeavoured to cure any defects there and have destroyed the good corn wilfully when they onely pretended to pull up the weeds The Baâ—ance would be kept even between the Subjects right and the Kings prerogative if the Rule in the Roman Law were observed salva Majestate Imperii L. 11. F. de Justitia salvoque jure more majorum quia ut dicunt Juristae sicut pendet Justitia ratio Tributi Fectigalis in recognitionem Supremae potestatis ob onera sustinendae Reipub. ad praestandam securitatem mercibus ita Regalia Regibus competere ut statum Reipub desendant sive decus dignitas sive salus utriusque spectetur Kings have their proper and peculiar rights assigned by God who commanded Samuel to shew the people the manner of the King that shall raign over them rationem istam
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