utile Faber adreg jur 90 〈◊〉 F de V sucapion quod non sit aequum Plura sunt in jure quae habentur bona licet non aequa aequitate derogatur propter publicam utilâ—tatem ob benum publici Status quamquam aliqui dicum omâ—e utile publico idetiam sit aequum sed propriè jus est ars boni aequi L 1. F. de lust jur Aquinas Faber ad reg jur 90. quia de justitiae fonte manavit justum est objectum justitiae sed à ratione juris aequitatis benignitas distinguitur jas ab aequitate bonum aequum à juris scripti ratione As 〈◊〉 had amongst the Lawes of Nations some that are not drawn from that which is properly equal and just sed usu exigente humanis necessitatibus Institut de Jusl. jure jura quaedam agentibus constituta sunt The like is to be said of some particular Lawes made in all ages in diverse Countreys and States which are not grounded upon that which is simply and properly just and equal but rather contrary and for that reason usu exigente humanis necessitatibus 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 oathes and ingagements made to Tyrants and Vsurpers I Come now from their seditious practises which I leave to their repentance unto the relation of some of their pernicious Principles which seem to be their Fundamentals To relate all those they sometime do mention if it were postible yet were it to little purpose Errours are prone to multiplication one begetteth another They affirm boldly that if a King perform not his duty his Subjects may compell him to it and that they are bound to obey him no longer then he doth govern according to his Lawes That the People may depose him from whom he hath his power and such like The People who are a Party must be the sole Judges Witnesses and Accusers And they would have it granted that Kings hold their Crowns but conditionally and generally from the election of the People If these be not granted their cause will fall to the ground for they want proof to support it The duty we owe to our Soveraign to our Parents to our wives and which the vassal oweth to his Lord which is the weakest of these are neither of them conditional upon performance on their part If this doctrine should be received all the world would fall into consusion Mutual and correlative duties ought not thus easily and perniciously to be dissolved It is against Christian Doctrine to requite evil with evil neither doth the Lawes allow as it doth in some cases Retaliations Compensations or Relaxations of such nature Cicero saith there are duties to be performed toward some persons from whom we have received injuries This doctrine were as ill for the Subjects as for the Prince if they breake the bonds of their duty to him and he thereupon should put them out of his protection and shew himselfe a woolfe and not a shepherd and afford them neither protection Justice nor mercy unto all which he is bound by his duty to God and his People The Doctors of the Laws are much perplexed in debating these two Rules in Law the one is that in vain he requireth the performance of a promise or contract to whom he refuseth the performance of that which he ought on his part to performe the other is that a man is not bound to performe his oath if that be not performed to him in consideration whereof he did swear and unto these rules they astigne diverse exceptions and limitations one is that regularly L. incivile 12 Cod. de rei vind l. nonidcirco F. De contrah empt Bartol P. decastro alii ubi contractus est perfectus obligatio nascitur ultro citróque non rescinditur propter inobedientiam alterius partis quod in contraclibus innominatis non licet agere ad resolutionens contractus data contraventione unius partis sed vel ad implementum contractus vel ad interesse The not performance of one party doth not make void the contract but the Law giveth other remedies to the party damnifyed for the Law doth not favour null sications and requireth in cases doubtful such interpretation as is rei gerendae aptior ut actus de quo agitur valeat potius quam pereat Although in divers promises and transactions and in leagues and truces yet this of truces is much controverted the breach of one party is holden to be a dilcharge of the other from the whole obligation upon this reason * Accursiue Alexander Alciat alii voa est juris et legum frangt posse fidem ei qui fregerat prius sidem qualemeunque fidem nudam vel juratam Cuâ—â—ius ad Dâ—â—etal de jure jurandâ— cap. 3 c. 9. quia siagula Capita conventionis insunt conventioni per modum mutuae contemplationis correspectivè positae sunt we dâ—bet contractus claudicare ex una parte ex uno latere sidem frangenti sidem non esse servandam quod dictum reserendum esse ad unam candemque conventionem ad ed quae una cademque sponsione comprehensa sunt in promissionibus quarum altera alterius causa facta est cum connexorum sit unum idemque judicium sed secus est in diversis separatis But notwithitanding all these distmctions and immations in contracts and obligations Civil all agree that in those duties which are mutual by the Laws of God and nature as between the Father and the Son the Husband and the Wife the Lord and his Vassal the Prince and his Subjects the breach of duty in the one is no discharge unto the other Those have little regard of the breach of Paternal Filial or Matrimonial duties who regard not their duty to their Soveraign A gainst the Father against the Husband against the Lord and against all others the Laws provide remedies for injuries Quintilian ne sui quisque doloris vindex sit but the King is exempted from the coercive power of Lawes although he is obliged to do right unto all men When the Israelites desired a King 1 Samuel 8. God commanded Samuel to shew unto them what hard and unjust pressures might fall unto them from some of their Kings lest peradventure in being not forewarned they should murmure against God who notwithstanding they were his selected people yet he gave them no licence in any case to depose chastise or disobey evil Kings For by the same decree of God evil Kings are set over us by which the authority of all Kings is established Bonos Principes voto expectare Calvin Instit. Tacitus qualescunque tolerare was the saying of a wise Heathen Hereupon it is very aptly and wittily
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
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
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
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
eum qui vim adhibet Insomuch as this clamorous and tumultuous rout were like that seditious assembly at Rome who required the Senate Livius lib. 2. rather in threatning then by way of supplication and stood about the Curia as if they would be Judges or moderators of the Publick Councel so as very few of the Senators could be induced to repair unto the Consuls and many of the rest of them were afraid not only to come to the Senate house but to adventure abroad into the market place and streets These our tumultuous assemblies and the abominable disorders and contempts by them committed cannot be excused if they had not been incouraged by many of the members of the Parliament in saying it was the fact of the vulgar sort and that delicta vulgi Livius à Publica causa separari for their offence was not suddain momentary and unexpected it had tract of time continuation and iteration whereby the fact of a few shall involve those in authority and had power to suppress punish and prevent them Si non compescimus aut non ulciscimur quod est delictum privatum fieri potest publicum sic non singulos tantum teneri sed universitatem illaqueari as say the Doctors of the Laws for the knowledge the will yea the command of the superior or of the whole body Corporation and colledge is presumed quando delictum non est momentaneum sed successivum delinquitur iterum at que iterum pluries palà m Men in authority draw guilt upon themselves by omitting their duty in preventing and punishing offences especially publickly committed Qui non prohibet jubet L. 60. F. de reg jur mandare videtur qui potest prohibere patitur peccare vires subministrat andaciae Vox est in jure Canonico frequentissima Cuiac ad Decretal de Testib c. 45. non carere scrupulo societatis consentionis occultae qui manifesto crimini desiit obviare One other cause of just fear declared by Law is when the Master is compelled by popular tumults and acclamations to set free his bondman In this case the bondman could not obtain his freedome which the law doth favour although the Master did at that time seem willing L. 17.5 Qui et à quib Qui coactus à Populo manumiserit servum suum quamvis voluntatem suam accommodaverit mentitus sit tamen servus non erit liber L. 12. Cod de Poenis nam ex acclamatione Populi manumittere prohibetur Vanae Populi voces audiendae non sunt nec vocibus eorum credi oportet quando aut noxium crimine absolvi aut innocentem condemnari desiderant Populus docendus est non sequendus Distinctio 62. causa 5. quast 4. cum glossa causa 8 quast 1. c. 16. tit 6. de Electionibus c. 2. Decretal Electio ad clamorem Populi non vales astamen ad clamorem Populi remittatur alicui poena Glos ad dict l. 8. quaest 1 c. 16. Praesumitur de injusta ejus electione qui per clamorem tumultum est electus Much more ought we to refrain the condemning of any man by the acclamations of the People which did chiefly set forward the condemnation of our Saviour and it may be and hath often been as in the case of the Earl of Strafford this Parliament an occasion of much wrong and injustice with men in authority void of fortitude as Pilate was 1 Sam. 15.24 Saul was brought to ruine by his own ackowledgement by transgressing the commandment of God in fearing the People and obeying their voice But in evil times good men to avoid a storm have been driven to a refuge more necessary then just as was the case of Aaron Aug. de Civit. Dei l. 14. c. 11. qui erranti populo ad Idolum fabricandum non consensit inductus sed cessit obctrictus CHAP. X. The Case 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 Usurper AS the Kings cause is more favourable then other mens in divers respects so is the condition of Subjects in Rebellion or guilty of Treason the worst of all other Delinquents in all respects for the Law saith Per mortem crimen corum non extinguitur L. 7. Cod. ad leg Jult Majestatis L. ult F. ad leg jul Majestatis l. 15. l. 31. F. de denationib L. ult F. ad leg Jul. Majestatis sed post mortem id crimen instaurari solet consiscantur eorum substantia bona post contractum perduellionis crimen donationes factae non valent Those who are in Rebellion qui hostili animo adversus Rempublicam vel Principem animati sunt are greater enemies to their Countrey then Pirats who are reputed common enemies and may be destroyed by any man being put out of all protection by the Law of Nations ipso jure diffidati sunt for they being violators of all Lawes can have no benefit by any Law they have not jura belli Baldur l. 24. de Captiv l. 18. Cod. de Furtis Bartoli Peregrinus de jure Fisci L. 7. F. Quod metus l. 54. F. de Furtis Peregrin de jure Fisci Tertullianus Livius lib. 2. L 9. F. ad leg Cornel. de Sicartis captivitatis Postliminii due unto just enemies licitum est navigia bona res naufragatas corum surripere sic ab iis qui sunt nobis aut Christiani nominis inimici And so a notorious and declared Rebel ought not to have protection from any Prince especially from him who is in league with his Soveraign for such a Rebel is said to be exposed to the violence of all men and he that doth kill such a Rebel it is presumed he did it se defendendo de illius rebellione But a Rebel as well as a Thief if he maketh resistance or defence may be justifiably slain liceat occidere furem si telo se defendat Talis rebellis in persona sua potest impunè occidi bona ejus occupantihus concedi In râ—os Majestatis omnis homo miles est quem lex aut consuetudo habuerit pro sacro non crit capitale siquis eum occiderit Sic furem nocturnum impunè quis occidat si parcere ei sine periculo suo non potuit In former times a man outlawed for Felony Hoveden in H. 2. Augustin nec potest privatus agere vicem potestatis alioujus August might have been put to death by any man nam lupinum caput gerit à die ut legationis suae And yet regularly and by Law nec quenquam scelestum indemnatum impune occidi but in some few cases the Law giveth the sword into a private hand especially to suppress and destroy notorious Rebells if they make resistance as
violence brake into Regal government domination and power prevailed some People postquam Regum pertaesum erat after they were weary of Kings as the Cretensians Spartans Athenians governed themselves by their own laws and not by Kings some itching humour peradventure took them in the head or they took Aristocratical and Democratical government as a medicine to cure Tyranny and that did but change the malady for those States were never free from seditions or from many Tyrants Reigning at one time which was worse then the Tyranny of one man as they felt it at Rome Fremebant Populi multiplicatam servitutem esse centum pro uno dominos factos esse Livius lib. 1. Judges 9.2 Which is better said Abimelech to have threescore and ten men to have dominion ever you or but one man only Into this miserable condition were the Israelites fallen when in place of one King they had not only many but also one Micah a private man for all their Judges set up a new Religion and an Idol and disorder upon disorder followed and the reason is given in sundry Chapters because there was no King in Israel * The miserable condition of the People is declared by the want of a King and of the exercise of the true Religion Hoses 3. Jud. 18.1 Jud. 17. August Confes lib. 3. cap. 18. l. 1. l. 2. F. de Historia juris This desire of changing Monarchy did possess but few People generale quippè pactum est humanae societatis obedire Regibus Reges initio omnem potestatem habuisse arbitria Regum pro legibus erant After the Assyrians and Persians the Grecians and Romans had the universal Monarchy what power their Subjects had or did ever pretend to have concerning domination and government doth not appear in any Histories neither did any of the ancient Law-givers and wise men Philosophers or others ever mention any such natural primitive and supream power to have been originally and still to remain habitually in the People over Kings There is no doubt but Nebuchadnezzar and his Successors raigned tyrannically and yet the Prophet said that God gave them power and dominion over men God never gave neither any others did ever pretend to have right to depose any of them for their Tyranny as being any forfeiture of their authority They would have it granted unto them that Kings have not their authority immediately from God because they are either by hereditary succession or by election gift contract or by conquest all which are but humane titles and meant of acquisition not divine But they ought to find a difference between the power which is immediatly from God and the means used for obtaining this power which are humane Aliud res est aliud modus rem habendi the means and the form must be distinguissied from the authority of governing forma de hominibus esse potest de coelo semper autoritas and thus say the Doctors of Law Principes legitimi sunt aut Successione aut Electione vel donatione vel jure belli bos titulos ab hominibus accipiunt Titulus seu conditio sive modus ab hominibus accipitur potestas autoritas est immediatè à Deo Sic Pontisicts Electio sit ab hominibus sed personae canonicè electae Deus dat Pontificalem potestatem quam à Deo immediatè accipit By which of these humane means Princes are advanced to rule or by what form the Common-wealth is governed or in whom the Soveraign power is vested if they are lawfully advanced to their callings and estates we must acknowledge them for Gods leiutenents on earth and the power they have to be his and his ordinance and who ever resisteth this power resisteth the ordinance of God Those affirme that the power of rule and government is derived from the People unto Princes Soto de just jure lib. 1.9.1 artic 3. Suarez de legib lib. 3. c. 3. 4. alii and that Reges à Populo creati sunt in quos suum transtulit Imperium ac potestatem quòd potestas dominandi seu regendi politicè homines sit ex vi solius juris naturae in hominum communitate potestatem hanc à Repub. ad Principem manasse Yet they acknowledge that this Power is not immutably setled and remaining in the People Suarez alii sed per consensum ipsiusmet communitatis vel per aliam justam viam posse illa privari in alium transferri ut per justum bellum quod verum titulum dominium conferat So as by the opinion of those who are in part of our adversaries side they cannot justify their allegation that this Power and right of domination and rule is alwayes inherent in the People and in the whole State of human societies conjoyned although they had it originally in them so as they may assume it again without having the influence of this their supposed original power barred by any means as our adversaries affirm For we find amongst most Nations that they have received laws and their liberties from the grant and permission of the Conqueror and not he and his successors their Power and authority from the vanquished people Neither is there any authority or right which any People have or ever have had in matters of State and government but it may and oftentimes hath been limited and abolished not only by positive laws and continued customes but by their own concession and grant as the Romans granted all their supream authority to their Kings lege Regia Institut de jur nat gent. tit F. de bist jur l. 1. l. 2. or else they may be deprived of it by the right of Conquest especially proceeding from a just cause and lawful title whereby the Conqueror maketh all his own which his sword toucheth if the vanquished continue unseasonably obstinate and do not help themselves by timely surrender or composition Deutr. 20.12 God who giveth victory in the day of battle doth thereby give domination and dominion over the vanquished and all that is theirs in a just and lawful war Lex velut pactum commune est quod bello capta capientium siunt Aristot Xenopbon Clem. Alexand. l. 5. F. de acquir rer dom quae ex hostibus capiuntur jure gentium statim capientium fiunt So that unto whom dominion is in this sort derived the same do they enjoy by the law of Nations as rightly as they who acquire their dominion by the free grant of the People * The Conqueror had by the law of Nations and by the Roman law dominion over the conquered and might bring them under servitude yet amongst Christians the practise and custome is otherwise for a citie taken by conquest saith Bartol Bald. non efficitur serva sed subdita respectu jurisdictionis unde cives retinent bona sua habent Testamenti factionem But when a City is conquered or rather
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