feigned that when certain people desired of Apollo Rignalio di Parnaso to be relolved whether it were lawful to kill a Prince a Tyrant he with great indignation rejected their question in respect the people were incomperent judges and not capable to discern between a King and a Tyrant and in respect of their ignorance they alwayes gave great advantage unto those who were ambitious seditious and lovers of novelties or in desperate condition and estate with their pencel or false pretences and with colours of Hypocrisie to paint Tyrants for lawful Princes as well as Princes for Tyrants whereby the world would be filled with bloodshed and execrable confusions and so Apollo sent them away with this admonition bonos Principes voto expetere qualescunque tolerare David said against thee thee onely have I sinned not but that he sinned also against men and no excuse no prerogative no acceptation of persons at Gods Tribunal although in the quality of a King he was exempted from any Judgement-seat of men for David being a King saith Saint Ambrose was therefore not under the coercive power of humane lawes quia Reges liberi sunt à vinculis delictorum they are freed from the bonds of their offences and are not called to punishments inflicted by Lawes saith he quiatuti sunt Imperii potestate they are safe by the power and virtue of Empire The Interpreters of the Civil and Canon Lawes in explaining that in the Imperial Law Inflitut tit qutb modis Testam l. 3. Ced de Testam L. 4. Cod. de Legibus Diflinctio 21. c. 4. etc. 7. Decretal de Electionib cap. 20. legibus soluti sumus legibus tamen vivimus do say that Kings are freed from the coercive power of Laws but not from the directive quia nihil magis proprium Imperii quà m legibus vivere Et qui leges facit pari Majestate legibus obtemperare debet Non posse quemquam qui minoris est authoritatis eum qui majoris potestatis est judiciis suis addicere aut propriis desinitionibus subjugare quia prima sedes non judicabitur à quoquam nisi à Deo Nee potest ipse hac in parte praejudicium ullum successoribus suis generare pari potestate imo eâdem post cum functuris cùm non habet par in parem imperium The ten Tribes which fell from their King Rehoboam and chose Jeroboam we find were justly condemned for their Rebellion because they perverted the order and violated the power established by God in falling from the house of David Hosea 11. The Prophet sheweth what they were Ephraim compasseth me with lyes and the house of Israel with deceit but JVDAH ruleth yet with God and is faithful In this Tribe of Iudah which remained and kept the pure service of God there remained also the lawful Government in the progeny of David and all the other Tribes which revolted to Ieroboam and sorsook their lawful Soveraign for being overburdened with taxes what got they by it they lost their Religion which we have seen in our time to go after the loss of allegeance and inthralled themselves under far greater exactions as most commonly it appeareth in a new usurped State and they had their Rebellion rewarded with Tyranny as there are many examples both Ancient and Modern If men well consider they shall finde that to help what is amiss in Government is not by resisting or which is the worst of all by removing the power or the Persons set over us by Gods decree and by dissolving the bond of Kings Job 12.18 which God onely looseth or by casting contempt upon their Persons which draweth on the destruction of their authority It was said by a wise man vi regere patriam aut parentes Salust quanquam possis delicta corrigas tamen importunum est For such men usurp Gods right and murmure against his decree and controul his wisedome and justice and give a check to his divine providence Such men are pusilli animi Seneca qui ita obluctantur de ordine mundi malè existimant emendare mallent Deos quam seipsos They rather will controul the supream powers and usurp the power to help themselves by evil means then look whether they can finde any fault in themselves He who resisteth the powers Rom. 13. resisteth the ordinance of God saith Saint Paul Those who resist Goverment are presumptuous and selfe willed saith Saint Peter these filthy dreamers dispise Government and speake evil of dignities saith Saint Jude All three Apostles teach us allegeance to our Soveraigne which inseparably is annexed to the love of our Country both stand and fall together He who is a Subject by birth as he is tyed unto his allegeance by the divine so is he by the Laws of Nature and Nations L. 14. F. de condict indebiti l 2 l. 8. F. de capit minut l. 95. S. 4. F. de solutionib L 84. F. de regul Juris L. 26. S. 12. F. de condict indâ—biti l 12. Cod de in jus vocando L. d Chanel and Sir Fdw. Cke Postnati case L. 8. F de Capâ—â— mâ—â—utis 〈◊〉 de jure na gen L 2 F de Iustu jure but our adversaries who are as presumptuous self-willed and as great resisters of Goverment as ever were in any age deny this stifly and affirme that no natural allegeance is due to our Soveraigne which is a vain dream for there is a natural allegeance as there is a natural obligation expressed in divers cases in Law naturâ aquum obligati naturaliter obligationes quae naturalem praestationem habent obligatio naturalis quod vincnlo aequitatis vinculo juris naturalis sustinetur is natura debet quod jure gentium dare oportet sic natura libertus obsequium patrono debet cùm naturali obligatione seu ratione honor bujusmodi personis debâ—â—tur If the Laws have ordained so many distinct natural obligations and bonds between men it were very hard that Princes should be excluded from having any natural obligation between them and their Subjects But there is a natural and a local allegeance Naturalia jura lex civilis corrumpere non potest naturalia jura sunt immutabilia nec jure gentium tolli possunt nec Senatus authoritate commutari The supream Laws of nature are immutable as Religio erga Deum ut Patriae Parentibus parcamus And herein is included our allegeance to our Soveratgne as it is likewile in the sift Commandment of the Decalogue by the judgment of all Divines There are other Laws of nature of an inferior rank and degree not so much concerning our natural duties as our rights profits and liberties due unto us by the Laws of nature originaily which may be and have been by the Laws of nations and by positive and Municipal Laws and cusiomes L. 64. F de condict indebitt Grot. de jur bel l. 3. c. 4.
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
restramed and altered libertas naturali jure continetur dominatio ex jure gentium imroducta est Sicut jus gentium permittit multa quae jure naturae sunt vetita ita quaeuam vetat permissa jure naturae And we our selves may relinquish many rights and liberties which we have by the Laws of nature and nations but not our duties neither may we wave those precepts of the Law of God and nature Institut de jushtiâ jure Cujac alii as honestè vivere alterum non ladere suum cuique tribuere But in many things natural right and common equity may by a greater equity be rescrained Alia est aquitas simplex alia aequitas summa summa seu major aequitas est quae maximè spectat ad utilitatem publicam ad humanae societatis vinculum sed tunc jus naturae naturalis ratio non mutatur in se sed causa subjectiva seu materialis mutatur vel circumstantiae casus variantur and then the positive Laws of several nations and customes do and may adde and detract from the Laws of nature and nations L 6 F de Iustit jure Jus civile neque in totum à jure naturali vel g mium recedit neque per omnia ci servit accidemia juris naturalis divini ut sunt circumstantiae personarum temporum locorum mutabilia sunt manente vt ac virtute istorum jurium immutabili hee tunc producere pessunt necessariam dispensationem limitationem sen declarationem dicunt Doctores Covaruvias Declarari humana lege potest jus naturale tolli non potest limitart declarari in multis potest tam per interpretationem inter jus aequitatem interpositam Navari Manuele quam per justam dispensatienem per consuctudinem rationabilem Papa non potest jus divinum tollere potest ex causa illud moderari ac limitare nam quod in alio permmitti stculo in alio vetari nec justitia ergo varia mutabilis Augustinus Câ—â—â—o sed tempera non pariter cunt multa quae honesta videmur esse natura temperibus sunt inhonesta As a King cannot be discharged of his obligation to his People so cannot they be loosed from their natural allegeance to their Soveraign The faith between the Lord and his vassal is mutually obngatory but much more stronger is the obligation between the Soveraign and his natural Subjects by birth Dominus in his omnibus sideli suo vicem reddere debet Lib. de fendis tit de â—â—ma fideliâ—â—us Dictinct 93 cap. esto subjectus caus 22 quast 5. c. 18. cum Glossa Lucan L. 4. C. de origine l. 4. Cod de muntcip l. 1. S. 15. F. de ventre inspic Cod. fit si Curi lis l. penult Cod. de reseind vend Coke Postnati Case Eadem side tenetur Dominus subdito suo sicut subditus Domino A man may change his habitation but not renounce his countrey or allegeance to his Soveraign who is reputed the Father of his Countrey and the Husband of the Common-wealth Pater urbisque maritus Domicilium commutari incolatui renunciari potest origini non item origine propria neminem se eximere posse quia patria nascimur Impios se esse Patriam vitando demonstrant The Oath of Allegeance to our Soveraign or of sidelity to our Lord maketh not the Subject or vassal but it tyeth him more straightly An Oath is not alwayes of the essence of the thing whereunto it is applyed for Allegeance doth not begin by the oath taken at the Court-leet The very oath of Allegeance worketh not the bond in Law Between the Lord and the Vassal Juramentum non est de substantia feudi Feudatarius est obnoxius praestando juramento sidelitatis quod licet remittitur non tamen remittitur fides hominium sed onus subeundi juramenti Baldus and Iserna Cujac ad decretal Duarenus alii Operae officiales non cuiquam alii deberi possunt quam Patrono cum proprietas esrum in liberti edentis persons in Patroni persona cui edantur conslitit l. 9. F. De operib libertorum libertus natura operas Patrono debet Patronus operas officiales alii delegare non potest sed sabriles seu artisâ—â—ales potest delegare quia ha operae persone Patroni non cobaerent l. 26. S. 12. F. de condict Jud. 6. Sic propriè categoricè loquendo Patronus non potest clientem delegare vel alii cedere personam vel officium clientela quamvis possit alii cedere jura pecuniaria à cliente debita nec Rex Francia transferre potest in alium jus hoc quod habet in vassallum sive vassallagium vasallo invito Carolus Molinaeus ad consuetudines Partsienses cum alus Dux Britanâ—ia noluit pro Rege Gallia Regem Angliae quasi Dominum agnoscere quamvis à Rege Galliae delegâ—retur Car. Molincus Cujac ad lib. 1. tit 22. De feudis Julius Clarus de Feudis quest 28 The Duchie of Aquitaine refused to accept John of Gant for their Soveraign and said they were of the right and of the Dominion of the Crown of England and by the Coronation oath not to be alienated Frosarde History quia fides est de substantia non juramentum hoc juramentum non est obligationis introductorium sed confirmatorium obligationis efficacioris gratia in plus non obligatur sed efficacius majori vinculo So the Solemnities of the Coronation and the Oath there taken and given reciprocally do not confer and add more allegeance unto the Subjects or right unto hereditary Princes then they had by their birthright for the right of Succession was sectled before and ingraffed in the linage and family according to priority and proximity of blood by the Lawes of the Countrey and of Nations This Oath Kings ought religiously to observe because the administration of Justice the preservation of Religion and the welfare of the People are the principal parts of this Oath and of his duty not that his estate is hereby made or intended to be but conditional his person is tyed in conscience and in honour the Authority ceaseth not if he fail in performance The Oath and the Solemniqes of Coronation maketh not the Prince nor the neglect thereof doth not any way impeach his right They do declare the Prince and do admonish both him and his people of their respective duties and do conduce to the perfecting of the pledges and stipulation of each others faith Du Tillet Couronnement Sacre des Roys doivent prins intendus pur declaration on acceptation submissionau Roy designè de Dieu qui la conservè fait le plus proche de la Couronne non pour aucun droit qux subjects de doner la Royaume hereditarie per leurs voix ou Election Gloss ad decretal tit qui filii â—â—t
they abused that power also of siting during their pleasure and so made a forfeiture thereof if it could have been lawfully granted unto them Thus contrary to the intention of both King and People and contrary to the reasons on which their rights and liberties are grounded and contrary to the fundamental Laws of the Kingdom and contrary to the office and duty of those elected members and to the nature and quality of all delegated power and authority Procurators Deputies or Representatives became masters of all and perpetual Dictators and did work all their iniquity by a Law There is another way of fraud used to circumvent Princes which is to observe an opportunity offered them by occasion of some necessities and straits into which Princes often fall Many learned men affirme that all bindings and tyes of Kings although by vertue of a Law upon the onely advantage taken of their necessities and straits in their affairs maketh the breach of that Law justifiable inasmuch as any constrained assent is never reputed a Royal assent neither a durable assent Amongst many examples there is one of our glorious King Edward the third in or about the fifteenth year of his reign who went roundly to worke in such case and voided certain things formerly granted by himselfe in Parliament alleadging that those things by him granted were contrary to his oath and the rights of his Crown which he granted not of his free will but that he dissembled at that time to avoid those eminent dangers which would have ensued upon his denial Yet may we not approve Machiavils doctrine Cap. 18. of his Prince that Princes may without dishonour break their faith when the observation thereof turneth against themselves or the cause which urged them to promise doth cease albeit mans assent or denyal is feeble and defective when he is surrounded with inextricable difficulties and oppressed with violent perturbations and then to take an advantage thereof is neither fair nor firm for when strong and violent perturbations and affections have possessed the mind all Laws allow them for just causes of qualifications of offences and mitigation of punishment in most cases Sereca Non est facile inter magna mala non desipere quid mirum est animos inter dolorem metum oberrasse They who seeke to hold Princes or other men to the strict observation of promises drawn by the advantage taken of their necessities and distresse can never have any sure hold of such promises neither of their affections It will never dye in the Romans hearts Livius lib. 9. but will alwayes be fresh in memory whatsoever shame the yielding unto their present necessity shall brand them with Princes have or at least they take unto themselves a larger scope and latitude then other men can or may when as the freedome of their will is straightned by any coaction or necessity and upon reason of State do they proceed more then upon rules of Law or axioms of Philosophie Plin. Paneg. L 10. F. de condit Instit L. 79. F. de Jure dot l. 63. F. de condit demonst and may sometimes do that justifiably which private men may not non potest non nimium esse privatis quod Principi satis est Howsoever Princes shall not be tyed when other men are freed from those stipulations contracts and conditions quae laedunt pietatem existimationem verecundiam eorum generaliter contra bonos more 's sunt quia nec talia facere posse credendum est Id possumus quod jure possumus Paria sunt impossibilia turpia A Prince when he is injuried or damnified may as the Schoolmen say in his defence or in vindication of his reputation which doth much support his authority act in a different manner and proceed to a higher measure and degree then private men for the injuries done unto him and the damages sustained by him much differ from those of other mens both in quality and extent Vt gravius peccatur in personam magis Deo conjunctam Aquinas sive ratio officii sive virtutis spectetur sic quantò aliqua injuria in plures redundat tantò gravior est ut est ea quae fit in Regem qui gerit Personam totius multitudinis sic redundat in injuriam totius But Princes as well as others are obliged to the observation of their promises and contracts by natural equity Seneca L. 1. l. 7. F. de Pactis Baldus Pacta conventa naturali aequitate rata sunt quae non sunt dolo malo facta nec contra leges Faith is expected more fully to be performed by Princes Exuberantior fides ab iis requiritur variatio inconstantia in Principe maximè reprobatur debet esse immobilis sicut lapis angularis sicut Polus in Calo. And therefore it is most dishonourable in a Prince aliquem speciem juris fraudi imponere aut fraudes captiunculas miscere Livius Lipsius Cicero Sleiden 19. Nat. Comes 3. Guicciard 5. Gentil de jure belli Lib. 2. c. 4. l. 2. Cod de legibus syllabas apices aucupari quod leguleorum est for which cavillations and carping at words two glorious Princes Ferdinand of Spain and Charles the fifth his Grand-son did suffer in their reputation and so did Lewis the twelfth King of France quod non Principibus sed leguleis dignas verborum ac pactorum interpretationes afferrent notam infamiae is incurrit qui ed astutè interpretari voluerit The Emperour Justinian gave amongst his Laws two good rules for Princes the one concerning the observation of their own contracts Imperialibus contractibus vim legum obtinentibus the other for observing their Laws digna vox est Majestatis regnantis Principem profiteri se legibus alligatum esse de authoritate juris pendet nostra authoritas L. 4. Cod. de legib For a Prince by breaking his faith and not governing his People according to his Lawes draweth upon himself hatred or contempt or both either of them are most effectual means to rend in funder the Pillars of his authority and the sinnews of his Government and when either of these have possessed the minds of men Florus novae libertatis avidi cupiditate libertatis incensi they are seldome removed by any art or industry and then all his actions good or bad shall have one and the same interpretation Tacitus Lib 3. c. 5. discur upon Livie Inviso semel Imperio seu benè seu malè facta premunt Machiavil doth boldly tell Princes that the same hour they begin to lose their State and Authority when they begin to violate and undervalue the antient institutions Laws and Customes under which they and their ancestors have lived long and happily Livius lib. 2. Imperii omnis vis in consensu obedientium est All Lawes Humane and Divine are against violent acquisitions except in a just war how just soever the cause be For
unto that yoak and swear whatsoever is required of them and do not use all means possible to recover their liberty and the rights of their Countrey L. 19. Cod. de Postlim l. 20. F. de Captivis Qui hostilis irruptionis necessitate transductus est ad proprias terras festinare se debere cum hoc solùm requirendum est utrum cum hostibus voluntate fuerit an coactus si sua voluntate apud hostes mansit non est ei jus postliminii By this doctrine that Subjects under the yoak of any Tyrant and Usurper as well as of a foraign just enemy ought quietly to submit and take new oaths contrary to their allegeance our allegeance is a thing left at large and made ambulatory rebellion is cherished usurpers incouraged and men quieted from seeking which way soever the wheel turneth to shake of any usurped and tyrannical power by any means lawful or probable But those Lawyers are the greater deceivers who affirm that all the Lawes and Statutes which do mention the King and are made for his benefit and for the security of him and his Subjects as that Statute also made by Henry the seventh for the security of Subjects when two are in competition for the Crown ought to be interpreted for him whosoever hath gotten the supream power and that by his assuming the name of King which some of them absurdly held necessary men ought to submit although he had no more title then Jobn of Leiden And thus may one usurper if he can drive out another find the Laws as beneficial for him as his sword and make them serve for any usurper of a Crown as well as for any Competitor for a Crown how good soever his title be These pernicious Law-sophisters that excellent rule in Law doth controul Nulla juris ratio aut aequitatis benignitas patitur L. 25. F. de Legibus L. 6. Cod. de legib l. legâ—ta inutilia F. de adimendis legatis Reg. jur Canonici ut quae salubritèr proutilitate hominum introducuntur ea nos duriori interpretatione contra ipsorum commodum producamus ad severitatem nec inducta ad unum effectum debent contrariaoperari quod ob gratiam alicujus conceditur non est in ejus dispendium retorquendum nec jura singularia producenda sunt ad similia aut ad consequentiam licet jus commune trahitur ad consequentiam ex majoritate aut paritate rationis ut dicunt Interpretes juris These cannot blame Machiavil for saying that Princes may break their faith to preserve themselves from danger or damage seeing they teach Subjects to wave their allegeance and break their oaths for prosit and quietnesse Neither can they condemn those Jesuits for saying the Pope can absolve Subjects from their oath of allegeance if Subjects can finde cause and means to absolve themselves from that their duty oaths or when they take new oaths and ingagements help themselves by equivocation and mental reservation Such new oaths and ingagements do avail nothing unless it be to procure perjury and the more hatred on those who procured them to violate their conscience With whatsoever cautel or mental reservation we swear protest or ingage yet God taketh it as he which giveth the oath doth understand it and if he who sweareth meaneth deceitfully the interpretation cannot be made according to his fraudulent intention but according to his meaning who required it or else according to the proper and common acceptation and sence of the words especially being given by a Judge or Magistrate fallit jurantem juratio facta per artem a cautelous oath deceiveth none so much as he that taketh it deceitfully But when the words are ambiguous and may receive different significations as he may worthily be blamed for taking such oaths so he that doth tender it willingly ought not to receive any benefit thereby nomini dolus suus lucrosus sit aut esse debeat Paulus Juris-Consulius nec dolus suus cuiquam per occasionem juris prosit Pactionem obscuram ambiguam iis nocere in quorum potestate â—uit legem apertiùs conscribere L. 39. F. de Pacâ—is Cujac alit ad dict l. 39. Baldus interpretationem contra eum potius faciendam esse Omnis oratio obscura ambigua tendicula est quae ei qui tetendit potius fraudi esse debeat sed interrogationi obscurae vel ambigua quis respondere non tenetur nisi declaretur Juramentum tunc intelligendum est secundum communem significationem verborum si utrique sint in dolo si à neutro intervenit dolus tunc interpretandum est secundum intellectum utriusque si verba possunt utrique intellectui adaptari si ab altero tantum sit dolus tunc intelligendum est secundum eum qui rectè intelligit In contractibus stipulationibus contra venditorem stipulantem interpretandum est * They who make an Oath Ingagement or a Law obscure or ambiguous and not clear and perspicuous which are essential properties of an Oath or Law it is presumed quòd sub involucro verborum per occasionem obscuritatis tendunt laqueos deceptionis But in two contrary or incompatible Oathes taken by one man if the former were not unlawful but of things indifferent in themselves neither good nor evil the second Oath contrary to the former is invalid and can hardly escape the taint of perjury but if the first Oath was for the performance of a necessary and Moral duty required by Divine and Humane lawes the second Oath being contrary to the former although extorted by fear is clearly void and most commonly impious When we are obliged to the performance of a duty or act we as much as in us lyeth are obliged to withstand and remove all impediments which may probably hinder us in the performance thereof for in a stipulation or promise not to hinder an act is regularly implyed an endeavour to have it performed In illa stipulatione L. 50. F. de verb. ob per te non fieri non hec significatur nihil te facturum quo minus facere possis sed curaturum ut facere possis qui spondet dolum malum abesse abfuturúmve esse non simplex abnutivum spondet L. 83. De verb. oblig L. 21. F. deregul Jur. L. 4. F. Quae in fraud sed curaturum se ut dolus malus absit Qui non facit quod facere debet videtur facere adversus ad quod tenetur quia non facit In a promise and contract the nature and quality thereof quid actum erat inter partes quid necessariò subintelligitur although express words are wanting must chiefly be taken into consideration The Divines say that in the sixth Commandment Thou shalt not kill is contained our duty in preserving the life of our neighbour as far as our wit and power extendeth quia imperantur contraria officia dum mala
them As it was the case of the Romans when they came first from ruined Troy and planted themselves in Italy And so the Venetians forced to forsake their habitations upon the firm land and to plant themselves in those Marishes and little Islands in the Adriatick Sea where Venice now standeth there built and fortified themselves against those barbarous People which over-ran the noblest parts of Europe against whom they could have no protection from the Roman Emperour their Soveraign In these respects they justly challenge that City and the Sea with the Dominion thereof And although it be farther granted that a people in such case may choose any form of Government And that a people and commonalty also have right to choose a King upon the failing of the Royal line because Regal Right and Dominion where there is none left to inherit it neither head to rule over it cometh to the body and commonalty for preservation 〈◊〉 human society yet all this helpeth not our adversaries It cometh nothing to the proof that all Kings hereditary hold their authority as derived from the people and that it still remaineth habitually in the people and that although Supream power be acknowledged to be in Kings yet not so as to exclude the whole state of those Societies conjoyned and bar the influence of that power which they have originally over Kings Neither can they draw good arguments and especially general conclusions from singular and extraordinary events and examples or from actions enforced for the safety of the People which is the supream Law Necessity often findeth a justifyable supply upon the fayling of Gods own ordinances expresly injoyned to be observed if otherwise the most necessary duties would fail to be performed Sed quae propter necessitatem recepta sunt Regulae Juris Canon non debent in argumentum trahi Quòd ob gratiam alicujus concessa sunt non debent ab aliis in exemplo produci They cannot prove that in Elective Kingdomes the People or Electors after they have once elected do alwayes retain such influence of their power over their Kings as that they may depose limit or correct their Kings unless their lawes have so provided The Emperour Valentinian being requested by the Army to choose a Colleague answered it was in their power to advance him to the Imperial Throne but now for ye to meddle in matters of State it is improper it belongeth to the Prince as ye have all acknowledged therefore henceforward do as ye are commanded Authority rightly setled is not easily removed neither by the intermedling of others to be impeached Those who have authority of Electing and transferring power unto others have after those acts are consummated no power to deal in any thing appertaining to that Power by them transferred Non est novum ut qui dominium non habeant Z. 46. F. de adquir rer dom aliis jus dominium praebeant vel causam facultatem modum jus vel dominium acquirendi ut creditor qui pignus habet pignus vendendo causam dominii praestat quod ipse non habuit So the rules often fail Qui constituit est major constituto nemo dat quod non habet quod verum est quùm nec potentià habeat sed det transferendo conferendo Episcopus sic det Sacerdotia Canonici Episcopatum Cardinales Papatum quae nec proprietate nec possessione habeant dicunt Interpretes When the Romans gave up their Supream power unto their Emperour no part of that power was ever held to be remaining in the people Constituto Principe datum est ei jus L. 2. F. de erigine Juris tit God de veteri jure enuclean ut quod ille constituisset ratum esset Lege antiqua quae Regia nuncupatur omne jus omnisque potestas Populi Romani in Imperatoriam translata sunt potestatem This power thus translated was not a delegated power aliud potestas delegata aliud transfusa This power transferred remained as immutable as the lawes of the Medes and Persians or the sentence and decree of any Court of Judicature which being once solemnly and definitively pronounced that Court cannot reverse L. 55. F. de re jud amplius corrigere sententiam suam non possit And so in diverse other cases non datur regressus If we cannot find by any law or reason that the Romans or any other People who had in them the supream power could after they had transferred this power to Kings and elected them reassume this power again and when it doth please them depose their Kings or limit and restrain their power by vertue of an habitual power still remaining in the People as is supposed then undoubtedly we can find no right in the People or in any societies or communities of People to depose restrain or limit Kings of hereditary succession especially those who have not their right from the People but by Conquest as in England From such Kings of hereditary succession and right all jurisdictions do proceed and in them reside and unto them they return say the Lawyers Rex est lex animata and his office and function is Indesinens Consulatus Novel 109. All other rights and liberties how ancient soever have been as in other Kingdomes at the will and mercy of the several Conquerors of our Island the Romans Saxons Danes Normans Our rights and liberties contained in magna Charta granted and confirmed by diverse Kings after much effusion of blood we nor our Ancestors did nor could ever claim by vertue of any reservation made by the People or any others when they were conquered neither by any original right inseparably inherent and vested in the People and from them derived If we could hardly draw from our Kings the confirmation of our ancient just laws in force before the Norman Conquest and with much difficulty and contestation obtain our former liberties often promised and granted by our Kings and as often violated we could not preserve any such original and inherent right unto any Supream power over our Kings as is imagined Huntingdon Normanni cito breviter terram subdentes sibi victis vitam libertatem leges antiquas Regni concesserunt Henric. de Kinghton Joh. de Brampton Willielmus Normannus dedit multis peregrinis qui cum eo veniebant in Angliam multas possessiones Anglis in servitutem redactis probrosum fuit vocari Anglicus He gave to those who served him terras possessiones Anglorum ipsis expulsis modicum quod illis remanebat sub jugo posuit servitutis Although he granted our lawes and liberties in use before his time yet he gave many Mannors and much land to strangers and Soldiers who came with him and unto the Church and kept much to himself as Domaines of his Crown by which means many of the antient owners were dispossessed Malmesbury The Conquerour did in his Charter and grant of some of the Antient
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