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.
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
heart and one soul and sold their goods Acts 4. and laid the moneys at the Apostles feet those who held the unity of the Spirit in the bond of Peace and needed not the tye and coercive Power of Lawes Talem primum Christianorum conventum suisse D. Hierony mus quales monachi esse imitentur et cupiant esse ut nihil cujusquam proprium sit nullus inter eos dives nullus pauper nec confundebant Christiani dominia bona egentibus in commune conferebant ut perinde ac domini eis uterentur fruerentur But now how ill would it be if all kind of standing provision for the Church and for the Ministery were taken away and their estate made dependent again upon the voluntary devotion of men and subject to the mutability of times and changes in Common-wealths as likewise if the people should now have that power as at first in choosing their Pastors and ministers The people in the primitive times if they had a great power and part in the election of their Pastors they well deserved it in respect of their great Piety and moderation It were very inconvenient they should now use the same course in their elections seeing the people are over numerous and humorous diversly and contrarily affected and disaffected as are likewise the Ministers and Clergy Such power doth not appear to be given to the people by Gods word as they who flatter them do pretend In the Council of Laodicea those popular elections were forbidden which prohibition Origen saith was in his time in respect they were carried with tumultuous clamors favours and rewards Instit lib. 4. c. 3. num 13. Calvin writing of the choosing of Ministers and of those who ought to have the choice he doth not grant it to the people but saith hujus rei certa regula peti non potest And in the Church of Geneva there is not any or very small sign of any Popular Election We find in the Primitive times the Peoples concurrence by some suffrage or approbation per signum sermonem aut silentium liberum and this is as much as is now allowed them by the best Divines of the Presbytery Cap. ult de elecâ—iâ— Duarenus Alii D. Cyprian epist 4. lib. 1. Ita ut omnes audiantur qui ordinationis impediendae causa objicere quidpiam voluerunt as in the ancient Canons But there are varieties of judgements in divers Canons concerning the election of Pastors as whether it must be in the presence of many standers by or at the request of the people or with their testimony or with their consent or by their election and voices And then it is a question whether the greater number present shall by their voices conclude all the absent who are interessed although they are the greater number * Vt sit in Electione Clericorum consensus Cleri Plebis Honoratorum Testimonium Imperatcribus vero Principibus electiones Romanerum Pontiâ—icum atque aliorum Episcoporum referendes esse usus constitutio tradidi â— pro schismaticorum atque hareticorum dissentionibus quibus nonnunquam Ecclesia Dei concussa periclitabatur Distinctio 63. cap. 26 27. Ita erat per vetustiores Canones This popular concurrence in these elections is almost universally abolished some character thereof may remain in some Churches and it is swallowed up in the right of Patronage of Churches for when Princes and Lords of Mannors erected and endowed Churches and thereby much disburthened the People by being thus beneficial unto their Churches and Pastors those Lords for their bounty were called and constituted Patrons of those Churches and had the right of Presentation of Clerks to them and their heirs in those Churches Qui Ecclesiam aedificat Novel 57. 123. cap. 18. aut de suo praebet Clericis annonas jus habet instituendi substituendi Clericos dummodo eos prius commendaverit Episcopo qui eos admittere debeâ—t si Dei ministerio digni sint as it is in the Imperial Law And so by the Canon Law Hoc jus nominandi sen praesentandi Clericum competit â—i C filiis 17. quest 7. Duaâ— ren de benefic minist Ec. cle lib. 5. c. 4. qui fundavit vel collapsam Ecclesiam restituit vel dotavit vel reditum certum largitus fuerit This right of Patronage and presentation to Benefices the Common Law and Statutes of England do grant and the lawes and customes of other Kingdomes as well as the Civil and Canon-lawes So as the Clergy men are not constrained to live any longer upon a part of those common contributions and dividents of monies raised in the infancy of the Church of gifts proceeding from the pious zeal of ancient and venerable Christianity but upon their Tythes and Glebe-lands assigned unto them and the Parishes also being set out and divided and several Pastors placed in Churches under the Bishops of several Diocesses And yet diverse men through a wilde fancy or to slatter the people as they would have the power of electing the Pastors to be in the people so would they have their maintenance left unto their will or to the mutable and arbitrary orders and decrees of Judges and Magistrates which would be a ready way to bring the Clergy into poverty and contempt as being then reputed but as Alms-men of the People or as Tenants at will Others would have their maintenance set out and assigned in money and not in Tithes Some quarrel with Tithes out of covetousness some through ignorance not considering that Tithes have been out of much prudence and equity anciently and universally dedicated to the necessary service of God and his Church or rather still continued since the Leviticall Priesthood was abolished and they will ever appear upon due consideration had of all times and things to be the most necessary natural and equal and in all respects the best maintenance for the Clergy and subject to least exceptions and inconveniences And let them also consider who so little regard Tithes and think they were due only by the Ceremoniall Law of the Jewes and not by Evangelicall Precept whether being since againe restored and dedicated universally under the Gospel by positive lawes and customes of nations to the necessary service of God and sustinance of the Clergy which is required of us by the expresse Evangelical law they are not now become again a sacred tribute and Gods right Ananias keeping back a part of the money consecrated to the service of God and his Church Acts 5. Institut de rerum divisione L. 1. Cod. de Sepulch violat Res quam devoverit quis Jehovae sancâ—a sanctorum est Jehovae Lev. 27.28 Covaruvias Duarenius alii L. 14. Cod. de Sacr. Eccles sub poena Sacrilegii Novel 7. c. 10. Heb 7. we find how he was punished for his sacriledge Quod divini juris est nullius est in bonis Res religioni destinatas jam religionis effectas
set upon offences then as punishments for the reformation of manners Such Magistrates administring Justice in such manner are obeyed non tanquam Rectores morum sed tanquam dominatores rerum August de Civit Dei lib. 2. c. 20. L. 1. Cod. de secund nup. Tit. Cod. de Caduc tol eosque non sinceritèr honorant sed nequitèr servilitèr timent The Roman Law herein giveth a good direction ne in iis quae ad correctionem morum spectant inducta sunt fisci rationem habere videamur Lex Julia de caducis ultimum locum dat fisco nam quod communiter omnibus prodest hoc privatae nostrae utilitati praeferendum esse Plinie in his Panegyrick saith unto Trajan the Emperour very elegantly Praecipua tua gloria est quod saepius vincitur fiscus cujus causa nunquam mala est nisi sub bono Principe sed nunquam Principibus defuerunt qui fronte gravi tristi supercilio militatibus fisci contumaciter adessent For this cause of religion and planting the Gospel the best Divines do not allow the Spaniards plea for shedding the blood of the Indians Inferre bella ac Populos sibi non molestos cupiditate conterrere ac subdere August de Civit Dei lib. 4. cop 6. quid aliud est quam grande latrocinium They should not so much have used the sword against the refractory Indians but rather the rod the spur and the bridle of good discipline and example to bring them to Christ for they had no dominion over them neither any offence formerly given by them dominion and propriety is not founded in and by religion but by a just natural or civil right acquired Dominia quae sunt juris gentium non tollit sides Christiana Infidelity doth not forfeit inheritance and propriety and thus the Schoolmen say Aquinas distinctio fidelium infidelium in se considerata non tollit dominium praelationem infidelium super sideles And this did the antient Christians acknowledge by their great loyalty towards their Soveraign Princes heathen Emperours and cruel persecutors But our men indued with their new lights have found that the ungodly have no right to the Creatures but are usurpers and have made a forfeiture of their propriety of which they the Saints may take the benefir and be the sole Judges The antient Christians were forbidden by the Imperial Law L. 6. Cod. de Paganis as also by the Laws of other Christian nations under a great penalty to meddle with the goods of Jews or Pagans living peaceably For the goods of the Jews although enemies to the Christian religion cannot for the cause of religion come by escheat unto Christian Princes under whom they live for delinquency they have often forfeited their goods and been expelled and sometimes all of them for the faults of a few and and thus have they been dealt withall Regia manu bono potius exemplo quà m concesso jure or rather out of reason of State which will not want specious pretences It cannot pass with a clear admittance amongst all the Doctors of the Roman Church that the Pope hath power over Infidel Princes to raise Armies against them although they do hinder the preaching and propagation of the Gospel universally authorized by these words Ite praedicate Evangelium omni creaturae seeing he hath not for ought can be made appear temporal authority annexed to his spiritual either directly or indirectly in ordine ad spiritualia to depose Christian Princes or to raise war against them for the advancement of Christs Kingdome but as for those who are not Christians the Apostle saith What have we to do with those who are without Botero It is truly said that peace a messenger whereof an Angel hath been chosen to be is scarce ever established by the Sword and the Gospel the blessed peace cannot be published by the sound of the Cannon neither the sacred Word be conveyed unto us by the impious hands of Soldiers neither tranquillity be brought to the persons and consciences of men by that which bringeth ruine unto Nations The Jewes were guilty of the greatest incredulity Rom. 11. ingratitude and crime and yet the Gentiles were admonished by Saint Paul not to shew any cruelty towards them or insult over them but to seek to provoke them to an holy jealousie and so to gain them unto Christ When Nathan reproved David he said hereby thou givest an occasion to the adversaries to blaspheme the name of God The primitive Christians rather chose to indure the most cruel persecutions then to disturb the peace of the Roman Empire and break the band of their Allegiance unto the heathen Emperours and this Saint Paul taught them who wrote his Epistle unto Christians living under Nero Rom. 13. and yet he telleth them that the Powers are of God and he that resisteth the Powers resisteth the ordinance of God and shall receive damnation D. Augnst de Civit it Dei lib. 22. cap. 2. Civitas Dei quamvis haberet tam magnorum agmina Populorum tamen adversus impios Persecutores suos pro temporali salute sua non pugnavit in iis non erat pro salute pugnare sed salutem pro servatore mundi contemnere Quamvis nimius copiosus noster Populus Cyprianus Grot. de jure belli lib. 1. c. 4. n. 7. non iamen adversus violentiam se ulciscitur sed patitur But when this is pressed against our new Patrons of Rebellion they contradict Saint Austin and the Fathers with a lye and say those antient Christians suffered through their want of power to make resistance whereby they do as much as in them lyeth deprive them of all the glory of Martyrdome and do injury unto their most blessed cause and the glory of God in his Saints sufferings And yet as nature doth draw us to yield to the unresistable power of a severe Conquerour vox est quodamodo naturae ut subjugari mallent hostibus victoribus Augustin quam bellicâ omnifariâ vastatione deleri so doth the law of nature give warrant for our resistance cum moderatione inculpatae tutelae as doth the law of God give us permission for our slight in time of persecution when we do not thereby desert our vocation nor betray nor prejudice a just cause CHAP. IV. Of the changes in Religion in England And by Luther And the toleration of divers Religions THe Professors of the Protestant Religion were at first and have been since taxed as seditious and despisers of Government and advancers of Popular licentiousness and that their Reformation in Religion proceeded from faction or turned into faction and tumults notwithstanding all their publick Confessions of their Faith and declarations of their Doctrine set forth in detestation thereof wherein they did fully profess their obedience unto the Civil Magistrate Ecclesiastical history But it hath been very antient and usual to lay that general
ab inferioribus fieri non debet as in the Canon Law Jus faderis faciendi is juris publici imperii and ever so reputed by the Laws of Nations as well as the rights of makeing war and Peace and of arming and araying of men of sending and receiving Embassadors No one of which doth belong unto subjects and whosoever usurpeth this power is guilty of treason Privatus qui pro potestate magistratúve quid gesserit L. 3. F. ad leaeem Juli. majestatis or doth keep the power longer then he hath warrant by Law or from his Prince Ita Patrocinia injusta omnibus modis corrigenda sunt Novel 17.2.13 nec ullus aliorum vitas ac bona patrocinio suo defendere debet sussicit lex favor Imperii and by many imperial Laws under great punishments prohibentur potentiores patrocinium praestare alii rem vel litem in potentiorem transferre For confederations and protections are coincident and correlative By the law no promise or contract can bind which is against the publick right and interest L. 27. de Reg. jur nulla conventione juri Publico derogari possit generaliter quoties pactum a jure communi remotum est servari non oportet L. 7. F. de Pactis nec tale juramentum servandum esse quia contra bones mores est no Oath or Vow can bind which is contra bonos more 's L. 112. de le gat 1. vel contra vim authoritatem juris And such are the vowes made by those who are in subjection and are not sui juris ut Filiifamilias servi without the consent of their Fathers and Masters By the Divine Law saith Saint Ambrose Numb 30 the Daughter is to have the consent of her Father and the Wife of her Husband for the ratification of their vows without which the Father and the Husband may disannul them And so by the Canon-law a man is not bound by his Oath or Vow without the consent of him under whose power he is Although we do not take in all this strictness into the oaths of Subjects yet we must grant that in all obligations as well as in oathes the Soveraign power hath ever its reservation expressed or implyed Decretal de jurejurando cap. 19. Lib. 2. de Feu dis tit 55. 7. Cum praedictum juramentum vos excusare non possit in quo debet intelligi jus superioris exceptum ut in omni sacramento fidelitatis Imperator nominatim excipiatur ac etiam tacitè id intelligitur nec ulla quidem indiget adjectione so as no obligation can be exempted from the construction or limitation of the Law neither can any Oath or Vow as the Divines say be accounted other then a rash and unlawful Vow or Oath which is contra facultatem nostram vel cum vocatione nostra pugnat As those are abominable Associations Covenants and confederations made amongst subjects in a Parliamentary form and under that abused authority of which I shall say more hereafter so are those as bad which are made with the concurrence or connivence of the Soveraign who thereby doth lend his hand to destroy himself contrary to all Policie reason of State and to the rules of Government as doth appear by the example of Henry the third of France who being oppressed by a Civil war was by the power and cunning of the house of Guise and other Associates in the holy League made in shew onely against those of the Religion drawn at length to submit unto this league through his preposterous zeal in Religion and desire to satisfie the ignorant and deluded people abounding in a wilful errour framed out of affection then which nothing is more violent and furious The King thus joyning in this league became but as one of the number in whom they did not conside he signified but as a small figure in the total summ and was rather an accessary then a principal in whom appeared little or nothing of King but the name whose destruction soon after followed and almost the subversion of the French Monarchy King Persius being extreamly pressed with hard conditions by the Romans his Counsel were of opinion that in parting with ought belonging to his sacred rights and yielding one thing after another he must make account to quit the free hold of his Kingdome soon after Such concessions and relaxations Livius lib. 42. Thuanus are but invitations and steps to more insolent demands and grievous pressures Quicquid de Majestate Regia cesserunt Reges cum eo simul de summâ rerum periclitandum esse Inter fortunam maximam ultimam nihil interest Seneca Tacitus Imperium habentibus nihil medium inter praecipitia summa It is a strong presumption that Princes are very defective in their government when their subjects are risen to so high presumption as to make associations covenants and engagements in a Parliament against their will whereby they raise a new allegiance in the People and introduce new laws and forms in government destructive to the old which produceth an Anarchy and confusion Although for the making of these they pretend and peradventure intend the preservation of Religion their rights and liberties and the release and prevention of grievances and burthens yet this preposterous course this indirect and violent means used toward their Soveraign much weakneth if it do not overthrow the justness of their cause in case their cause were just and maketh the cure worse then the disease But oftentimes the preservation of their rights and liberties is pretended that the present government and Empire might be overthrown Tacitus and when they have prevailed therein then set they forward the destruction of liberty The Romans saith Saint Austin were first stirred up by their love of liberty L. 5. c. 12. de Civit. Dei. and then the desire of dominion seised upon them for liberty seemed little worth unless they had domination and rule Liberty gotten by evil means cannot be kept but by power and power cannot be kept and assured without dominion and those who prosper in their iniquity continue therein Seclera sceleribus tuenda Seneca Decret causa 1 cap. 25. principatus quem aut seditio extorsit aut ambitus occupavit etiamsi moribus atque actibus non offendit ipsius tamen initii sui est perniciosus exemplo dissicile est ut bono peragantur exitu quae malo sunt inchoata principio Many are the examples of Subjects thus perniciously and incricately ingaged against their Prince and in danger of being reduced under the obedience of him whom they have so much offended and could neither trust nor be trusted never did think themselves safe either by submission or composition if they disbanded their forces and kept not their sword in their own hand And therefore to help themselves any other way-rather then to rest upon any assurance which their Prince can give if they
which as Paulus Jovius saith was longè gravissimus summè lugubris tumultus non urbibâ—s modo atque oppidis sed pagis agrestibusque familiis codem insaniae morbocorreptis vastitatem attulit cum caedibus incendiisque grassari cognatis affinibusque extremam vim afferre sacra non secus ac profana violare fas putarent virtutis gloriae loco ducerent si adostendendum insigne factionis studium maximè crudeles evasissent These were the fruits of sedition and part-takings after they had shaken off their ancient established Government And thus they made the way easy for the conquest of them afterwards by forraign Nations as Tacitus saith of the easie conquest made of the Britains who formerly obeyed Kings Sed nunc per Principes factionibus studiis trahuntur The Italians in these factions and seditions succeeded the Romans their Progenitors the most puissant and glorious People of the world who after they had first fallen into factions and then into Civil-war could never be cured of their malady but by another which was the usurpation of Julius Caesar and the Tyrannical Government of his Successors and were compelled to submit unto a Monarchical Government which of all other they most hated Albeit they and others also often found misery enough under the Tyrannical Government of many masters at one time as it is in a popular Government of which Bartolus saith De Tyranno de regimine Civitatis that regimen plurium malorum vel regimen Populi perversi non diu durat sed de facili in tyrannidem unius cadit hoc saepius vidimus There was no remedy left for our Countrey to appease the discord but by the Government of one man omnem potestatem ad unum confeâ—re Tacit. Annal. 1. L. 2. F. 2 de Orig. jur Florus Livius pacis interfuit Necesse fuit Reipublicae per unum consuli There had been no safety nisi Populus ad servitutem confugisset Into such times we are fallen quibus nec vitia nostra nec remedia pati possumus they could neither endure the malady nor the cure neither discern which was worst Thus the Egyptians long before had given them an example who after they had fought each one against his brother their counsels were destroyed and the spirit of errour mingled amongst them Isaiah 19. and they were delivered up into the hands of cruel Lords and mighty Kings had dominion over them * Such as King Antiochus who took away the daily Sacrifice and the place of the Sanctuary and placed abomination that made desolation Daniel 8. verse 11. and Chap. 11 v. 31. CHAP. VIII Of Seditions and seditious Assemblies and the punishment thereof Of the power of the King in that which concerneth the Militia and the Arms of the Kingdome And of other Rights of the Crown WE may perceive what are the fruits and events of Associations Covenants and Ingagements to wit Sedition Rebellion and Civil war Seditions have been the onely bane of most flourishing Cities whereby mighty Empires become mortal They are in direct opposition to Justice Livius lib. 3. to the Common good to the peace and unity of the People which are the Pillars of all Societies The Common-wealth as was said before is coetus juris consensu utilitatis communione sociatus so as it is manisest that the unity which Sedition doth oppose is the unity wrought by the bond of Lawes for the common profit and welfare of the people Seditio est res perniciosissima quippe quae populi civitatis regni unitatem Aquinas justitia utilitate communi nitentem deturbat dissipat est semperpeccatum mortale de se principaliter est in procurantibus opponitur unitati paci seculari ut schisma spirituali And therefore we do find amongst all Nations severe lawes and punishments against raisers of Sedition So great a crime and odious it is that the Jews when they had strained their malice to the height against our Saviour could find no crime more capital and likely to serve for their purpose Luke 23. then by accusing him to Pilate and Herod of being a perverter of the Nation and one who stirred up the People And so did they accuse Saint Paul for being a pestilent fellow and a raise of Sedition L. 5. Cod. de hit qui ad Eccles Paul sentent lib. 5. tit 22. The Law saith Nemo conclamationibus utatur nemo moveat tumultum seu seditionem sub pâ—na ultimi supplicii ubi coetu convemuque facto homines ad seditionem convocantur quod incidit in crimen laesae Majestatis Those who used clamorous speeches to the Prince or people L. 1. F. ad leg Jul. majestatis L. 1. l. 2. Cod. de sediti Cujec paratit ead l 3. S. 1. F. de vi pub l. 3. c. 4. F. ad leg Cor. de fi cartis L. 28. F. de poenis L. 1. ad leg Jali Majestatis Qui suscipere Plebem tentaverit qui aliquid petunt à Principe vel populo tumultuosis clamoribus qui coacta multitudine magna vociferatione quid petunt à Principe vel Populo tumultuosis clamoribus ut seditionis auctores puniri Seditiosi plectendi sunt capite si saepius seditiose turbulentè se gesserint nonnunquam puniuntur poenâ criminis laesae Majestatis By the more ancient law of the Romans before the raign of the Emperours he was guilty of treason Qui adversus populi Romani securitatem crimen committit qui convocatis hominibus vim sacit vis publicae reus est quia publica pax turbatur coadunatis hominibus omni armorum motu publica securitas offenditur as say the interpreters of Law L. 1. F. ad dict leg Jul. Authores seditionis tumultus qui concitato populo pro qualitate corum aut in cruce tolluntur aut bestiis objiciuntur aut in insulam deportantur Paul sentent lib. 5. de Seditiosis Hengham cap. 2. Glanvil lib. 1. c. 2. Bracton fol. 118. But there is a difference between those who do onely raise Sedition and War in the Common-wealth and others who contend for the destruction of the Common-wealth In civilibus Dissentionibus quamvis per eat Respublica ladatur non tamen in exitium Reapublicae contenditur qua sunt hujusmedi quae non ad delendam sed ad commutandam Rempub. pertinrent Cicero l. 21. F. de Cant. pâ—stâ—l Thus the Irish justifie their late Rebellion against the English Rebellion in that they did not strive to destroy the King or the Kingly government as did the English We find in our most ancient Law-books the raising of sedition to be a Capital Crime Placita de crimine laesae Majestatis ut de nece vel seditione Domini Regis vel exercitus ejus ad seditionem Domini Regis vel exercitus sui I omit the Laws of other Nations When Sedition and Rebellion have found
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
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
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
dederit se socium aut Capitancum subditis Regis nostri à quo puniri potest ut reus criminis laesae Majestatis nam talis peregrinus obstringitur ferè ut subditi propter hos socios suostembitur Majestatis etiam ipse peregrinus Qui seà ant in corpus aliquod isti volunt teneri cum corpore ergo pati debent Ayala de jur bel Christiani non siunt scrvi nisi militent aut auxilium praebeant Turcis contra Christianos tunc non Christianorum sed insideltum quibus se adjunxerunt numero habendi sunt Such cannot fall into the rank of just enemies who assist any rebels and come in at least as accessories without a solemne denunciation of war or a just cause Those are properly enemies L. 24. F. de Captivis qui nobis aut quibus nos publicè bellum decernimus caeteri latrones aut praedones sunt These strangers thus offending can claim no priviledge or benefit by any league or Laws but may justly be punished where they did offend for by a universal Law ratione domicilii vel delicti quis efficitur de foro alterius principis Habet Imperium Praeses Provinciae adversus extraneos hemines L. 3. F. de ossic Praesu L. ult F. de accus si quid manu commiscrint Alterius Provinciae rens apud cos accusatur damnatur apud quos crimen contractum ostenditur quod etiam in militibus est observandum The Laws of every Countrey give protection and some priviledges to strangers Protection draweth Subjection and Subjection Protection but in vain he calleth for the benefit of the Law who offendeth against the Law guilt abolisheth all honour and priviledge If a priviledged person according to the common saying cannot use his priviledge against one equally priviledged how much less against the Prince the giver of priviledges omnis dignitatis autor culmen In reos damnatos ex civitatibus nobis confaederatis animadvertimus L. 7. F. de Captiv Forum sortiuntur foederati in Civitate foederatâ and with this agreeth the Laws of nations and the Law of England for if an alien living in England who is under the Protection of the King and the Law Coke Postnati case Deut. 10. Levit. 20. commit treason his indictment shall be contra ligiantiae suae debitum The Divine Law so favourable to strangers giveth us warrant to punish strangers if they offend as well as others And therefore those who call themselves Souldiers of fortune and think they may come into any countrey where there is combustion and fall into any side like birds of prey without either warrant from their Prince or consideration of the justness of the cause find themselves often deceived and neglected by that partie which they did assist and little pitied whatsoever hapneth unto them whether they are slain or condemned to die either by the power or the right of the other partie There are lately risen up certain Politicians not so violent and in shew not so malignant as others who affirm either to flatter themselves or to deceive others or to put a scorn upon sacred allegeance and to give it cunningly a foil that when a stronger although a usurped power doth hold men under a yoak they ought quietly to submit and that all allegeance and former oaths taken for that purpose are at least suspended if not abolished as if they were to take for a rule alwayes the example of Issachar Genes 49.15 a strong Ass couching down between two burthens who did see that rest was good and that the Land was pleasant and bowed his shoulders to bear and became a servant unto Tribute Jerem. c. 27. c. 29. Or the extraordinary example of the Israelites submission under the yoak and captivity of the Chaldeans by the special and express decree of God and under his commination that what nation or kingdome would not serve the King of Babel he would visit that nation with the sword with the famine and with pestilence But we cannot here ground an argument for justifying obedience unto all Tyrants and invaders of our Countrey omnes enim omnium charitates una Patria complexa supergressa est Vigil Paterque natos nova bella moventes Ad penam pulchra prolibertate vocabat Filius sine seelere proditorem Patriae L. 35. F. de Religtos Ctusa 23. quast 8 c. 15. licet Pater suus sit occidit In omni tempore bellum gerendum sit pro defensione sua Patriae legum Patriae ne videatur homo deum temare Some learned men affirme Tyrannum qui per vim dominatur nullum habens jus ad illius Reipub. regimen posse à privato occidt Cavaruvies Cajetan alii Soto de Just jur ubi nullum aliud est remedium ad Tyrannidem illam tollendam etiam veneno proditoriè Others say quod qui sit invasor Regis vel Reipublicae justè intersicitur nam vim vi repellere licet quamdin talis Rempublicam sic obtinet perpetuam gern in Rempub. vim bellum others affirme quòd quando nobis non patet legitima possibilis via liberandi nos à Tyrannide seramus ut possumus Deo negotium quod omninò ejus est P. Martyabe C m Calvin Institut permittamus Vidimus quanta obedientia dominus tetrum serocem illum tyrannum Nebuchadnezzar coli voluerit non alia ratione nisi quia regnum obtinebat id autem ipsum erat coelesti decreto in solium regni impositum esse ac in regiam majestatem assumptum Calvin Instit. lib. 4. c. 20. p. 27. Hoc nobis si assiduè ob oculos obversetur codem decreto constitui etiam nequissimos Reges quo Regum authoritas statuitur nunquam in animo seditiosae cogitationes venient c. I shall leave this diversity of opinions in this poynt to the Judgment and discussion of others I do not require that men should strive against God and nature and with unseasonable and unadvised obstinacy provoke the wrath of the Conqueror for as soldiers are excusable when they have done the utmost that wit and power can perform and duty can exact in defence of a City so are Subjects if through apparent danger of death and devastation they render themselves and obey the enemy upon the best conditions that can be gotten Augustinus Vox est quodammodo naturae in omnibus ferè gentibus ut subjugari mallent hostibus victoribus quam bellie â omnifaria vastatione deleri Those thus compelled to take new oaths some Doctors hold them not guilty of rebellion or perjury and repute those latter oaths contrary to their former being injustly exacted to be void and at the most to be but a passive rather then an active rebellion But this cannot excuse men when they are tyrannically by the usurpation of any fellow Subject of theirs oppressed if they submit
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
rescued and redeemed out of the hands of Tyrants talem urbem recipi non capi receptam legibus antiquis libertate stabiliri Livius lib. 26. CHAP. XV. Of Prescription as well upon Land as Sea And the Right and Jurisdiction that the King hath in the Sea and over the Sea MOreover a People as well as a Prince may lose and be barred of many of their rights although not of their just liberty by custome and prescription which is at this day in many things the most usual law between the Prince and the People as it is also an ancient and common title between Princes and nations L. 28. F. de verb. signif L. 32. F. de legibus Qui non utende rem amittit vel rem patitur usu capi alienari videtur Per non usum desuetudinem leges abrogari tacito consensu omnium nil interest suffragio Populus voluntatem suam declaret an rebus ipsis factis Sed aliud est non usus aliud usus contrarius qui majorem vim habet quam simplex desuetudo seu non usus Prescription doth as the sea take from one shoar and give to the other straighten the ancient bounds on the one side and inlarge the bounds of the other It hath as we find by experience a strong operation upon land and sea Rex habet de jure gentium privilegia propria quae de jure gentium debent esse communia as in having a right in the sea and over the sea in respect of his jurisdiction and protection Bracton Bodin Capolla alii by an ancient and continued usage L 1 F. de aqua l. 1. Cod. de servitutib L. 56. lib. de Feudis Vetustatem vim legis tenere longi temporis consuctudinem vicem servient is obtinere as to lay taxes and impositions on sishers and on navigators in certain cases Reditus seu Gabella piseationis vel ex his quae in portum velex portu vehuntur sunt inter Regalia And also shipwracks and other escheats and perquisites reputed in this age inter summa Regalia whereby much of the liberty due unto men by the law of nature and also by the ancient laws of the Romans is much restrained through the force of custome and prescription or assumed Regalities and priviledges Regal wrought and effected by the changes in times and in the manners of men * Antiquitàs non hoc jus in maria flumina venationes sibi accipiebant finitimi principes ut nunc verum propter impenses sollicitudines principum crescentes merite inter Regalia reducuntur qua ab initio erant communia Tholosanus de Repub lib. 9. c. 1. num 29. Mare litora maris sunt ad usum communem jure nature gentium proprietas maris est nullius licet protectio jurisdictio Imperium sit penes Reges l. 3. F. ne quid in loce pub piscationis reditus Gabella vectigalie consueta moderate sunt inter Regalia quasi Coronae debita ut laborum praemia Regibus Regnisque tuendis servientia ut dicunt Interpretes ad titulum quae sunt Regalia in lib. Feudelium Imperiorum jura ut Aristides ait hujusmodi sunt ut ea non ex damnoprivatorum sed expublica utilitate Imperii vi necessitate mesiamur All which peradventure may better still be tolerated then endeavoured to be infringed or altered in respect of those inconveniences which are likely to ensue Unto those we may add the use of granting Letters of Mart consuetudo clarigationis seu jus dandi Represalias as they call it which in it self considered is no better then legitimum latrocinium or as the permission to keep Concubines by the Roman Law termed legitima intemperantia for it is against natural equity and the Rules of Law that one should be punished for another that the Father or Son should be punished the one for the other or that a Subject should be delivered a hostage for his Prince against his will yet all this must be tolerated as a calamity or punishment falling on some men etsi sine culpa non sine causa and although it be against natural equity yet as the Doctors say non omne quod est contra naturalem aequitatem idem injustum sit favor publici Status facit aequa non aequa quia omne utile publieo id ctiam sit aequum They are much deceived who affirm that these maritime Regalities jurisdictions and customes because they find the ancient Roman Law against some of them are risen up of later time and would have a boundless and indefinite liberty in the Sea We find that whatsoever the ancient Roman law was yet the Roman practise was otherwise as was the practise of other nations for Kings and Common-wealths did in former Ages challenge and exercise such maritime Regalities although not all which are now in use Gothof alii ad L 14. F. de adquir rer dom Non est novum ut Populus aliquis classe potens in mare imperium exerceat ut olim Rhodii teste Strabone occupationis temporis immemorialis fulcro licet non ratione praescriptionis propriè dictae sed jure praeoccupationis seu ratione quasi possessionis Rhodericus Suarius de usu maris alii ac etiam quasi praescriptionis non ut modus acquirendi dominii maris consideratae sed ut exceptio robur addit sic alii dicunt quòd tempore immemoriali quod vim tituli privilegii habet ac inveterata consuetudine Veneti jus dominium in mari Adriatico quaesierunt Nautica omnia lege Rhodià deciduntur L. 9. Gothof de lege Rhodia Livius lib. 30. non jure Romano sunt enim legum Nauticarum omnium Rhodiae vetustissimae The Carthaginians said unto the Romans vos terrà marique videamus regentes Imperia non maris quicquam nostri juris est Argivi expostularunt cum Athenis quia suo mari Spartanos Argivorum hostes transire sivissent Thucydides lib. 7. Plutarch in Pomp. ut contra foedus The Romans gave a large commission unto Pompey against Pirates with absolute authority over all the sea-coasts although there were many potent Princes within that compasse who had jurisdiction or dominion upon their own coasts by law or ancient custome Baldus Glossa Mare dicitur in termino districto territorio illius loci cui magis appropinquat inter dictum competere ne quid in mari sive litore fiat quo statio itérve fiat deterius Maris communem usum esse omnibus L. 1. S. 17. F. de Flumin L. 3. l. 4 F. ne quid in loco pub tamen concedendum id non esse à Populo Romano qui imperium habet quo deterior litoris marisve usus futurus sit The Civil law as well as the laws and customs of other nations do vary and detract from the law of
nature L. 6. F. de Just ju Guiac ad tit F. de just jure sed quod detrahit non mutat non in totum recedit jus civile à naturali nec per omnia ei servit nam in eo in quo recedunt à jure naturali rationem habent saepè cum natura conjunctam ac plerumque publicae utilitatis quam naturae jus suadet anteponi privatae But now to reduce men to their primitive liberty and abridge Princes of these Regalities howsoever they were at first gotten were as Baldus saith revangare mundum to turn the world topsidown eripere clavem de manu Herculis and to raise a universal combustion Mores ubique jus gentium subegerunt Cujacius Plautus Plinius L. 1. F. de just ju Cujacius leges optimas aliquando in potestatem suam perducunt Imo vis Imperium quod primò erat nunc mores vocarentur Et jus gentium à naturali jure recedit quia non naturâ sed moribus nititur pleraque jura gentium naturali juri opposita sunt cùm ad necessitates utilitates temporum accommodata sint The manners of men and their customes are subject to change and vicissitude they have their ortum statum occasum but prescription is permanent Prescription and custome have the force of law and have wrought more changes amongst Princes and private men then positive laws could effect Tacitum Populi consensum proplacito judicio Populi haberi L. 32. F. de legibus Inveterata consuetudo pro lege haberi Cicero saith much of the Roman law more constat institut de jure gent. Diutini mores consensu utentium comprobati legem imitantur Much of our common law of England is customary law France est regie par custumes non par droit escrit fo rs en quelques Provinces par loix Romanes prins pour coustume Tillet Duck de usu juris Civilis alii Consuetudines esse jus commune in Gallia vel maxima ejus pars But all customes are not binding but such as are justè inductae legitimè praescriptae qui habent malam fidem tempore possessionis inchoatae continuatae nullo temporis tractu praescribunt vel in actionibus personalibus vel realibus dicunt Canonistae but the Civilians hold it sufficient if it be begun bond fide although not continued to the tearm required for compleating thereof * Bona fides non sufficit sed necessa rio requiritur Titulus etiam qui pessessori tribuat causam prascribendi ubi jus commune contrarium ei fit vel praesumtio probabilis adversus eum sit nisi tanti temporis allegetur praescriptio cujus contrarii memoria non existit Decretal de Praescrip cap 1 Habet velut longae possessionis praerogativam ex eo quod diu usus sit L. S. F. De Itinere This I pass over as also what is required for the interruption of the course of prescription and custome Prescription and custome can raise a good title between Kings and nations as well as amongst others for ex Regum Populorum longa patientia sic ex praesumpta derelictione cum immemoriali temporis possessione dominia transferri by the laws of nations as the Doctors affirm quia per usum temporis immemorialis ïnducitur praesumptio juris de jure habet vim pacti privilegii legis Although some are of opinion that it was brought in by the Roman laws but long before those laws it was in use for Jephthah did object to the King of the Ammonites Judges 11. the possession of three hundred years and Sulpitius the like against King Antiochus and so others Si jure civili excludantur actiones privatae civiles ligitima praescriptione Livius lib. 35. quid non etiam belli causae actiones armatae cum sit absurdum ut nec post secula desit armorum controversiarum bellicarum praetextus justus Gentilis Grot de jure belli The Roman Emperours have been justly barred in many cases from their Claime by Prescription It is the common opinion that Princes and other States have justly prescribed and thereby acquired their supream Power against the Roman Emperors in respect of the presumed tacite consent of the Emperors never making claim nor giving them any interruption for a very long time By the law the longest time given to the Church was but the prescription of one hundred years that time being elapsed the claim and rights of the Church ceased and were reputed obsolete Centum annorum curriculo hujusmodi actionem evanescere L. 23. Cod. de Sac. Eccl. Novel 9. Romana Ecclesia gaudente centum annorum spacio vel privilegio Centum annorum lapsu exceptionem Ecclesits opponi sancimus Id vero quod est de centum annis mutatum est in quadraginta pro tollendis Ecclesiasticis actionibus Novel 131. c. 6. Thuanus lib. 101. Molinaus alii Episcopi Galliae se semper tutati sint adversus hujusmodi conatus Curiae Papalis praescriptione jurium libertatum Gallican The Roman Emperors as we perceive have lost very much of their dominions and Empire through dereliction and negligence which other Princes States and Cities have gained or usurped and now to seek the recovery thereof would cause their endeavours to appear as unreasonable and fruitless as formerly their diligence or power was defective L. 1. F. de usucap Bono publico usucapio vel praescriptio introducta est ut aliquis esset finis litium ne semper dominia incerta essent for it is against reason as well as against Peace which the laws do more favour then any mens particular loss especially through their own carelesness that no bounds should be set to mens sutes and claimes but controversies remain immortal CHAP. XVI Against the pretended Power of the people to Elect their prince or to depose him Of the Norman conquest of England and of Leagues between Princes and of Aides given to Subjects in Rebellion against their Soveraign AFter our adversaries have made their allegations with some verbal flourishes as that there is a natural right in all Societies to the power of Rule and from the Societies and Communities of People it is derived to one or more Persons and although Supream and universal 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 Then for the proof of this they do offer one reason which is that every independent People if they have or can find any such being driven from their Countrey by any accidents and scattered upon the face of the earth being forsaken by those who had the rule and power over them if they unite again they have a natural right unto Supream authority and may constitute such form of Government as pleaseth
to justify rebellion and to depress the authority of Kings as those Romish Doctors do to uphold the Popes Spiritual power which is as they say ex institutione speciali pendente à divina voluntate Instituentis Suarez de legib alii secund secundae quaest 10. artic 10. quaest 12. artic 2. quae ab inferioribus mutari non potest But the Regal power they will not have to be ex institutione divina sed à natura ita data à natura ejus autore ut possit in ea mutatio fieri pro ut communi bono magis fuerit expediens quia haec potestas ex vi solius juris naturae est in hominum communitate and although both powers may be said to be of God yet the Popes Spiritual power is of God immediatly but the regal Power mediante naturae lege Aquinas saith that Infidel and Apostate Princes although they have yet cannot retain dominion over the faithful but being excommunicated for Apostacy their Subjects are freed ipso facto from their allegeance Although he doth acknowledge that Infidelity considered in it selfe doth not abolish the right of dominion which Infidel Princes have over the faithful because it is ex jure gentium proveniente ex naturali ratione Jus autem divinum quod est ex gratia non tollit jus humanum quod est ex naturali ratione and yet notwithstanding the Church hath power to deprive them of this right as cause shall appear Thus do they labour to obscure and suppress the truth and perplex themselves and others with those improbable distinctions and pernicious propositions not regarding how they have been confuted and that by setting forth these propositions they raise Principles of sedition and rebellion and leave Kings in the worst condition of all men by subjecting them to the amplitude of the power and to the exorbitancy of the wills of their two Masters the Pope and the People to punish Tyranny and Apostacy and to witness accuse define and judge thereof * In Rege Ethnico vera potestas est jure gentium idque fine ordine ad potestatem Ecclesiasticam Dominia ut in fide non fundantur sic in fidelitate non evertuntur Privabit Censure Pontificis societate fidelium quà fideles suni bonum illud Spirituale ab Ecclesia non privabit obedientia subditorum quà subditi sunt bonum hoc civile est nec ab Ecclesia Tortura Torâ—â— Episcop Cicestriens To set a colour upon rebellion they affirme that the People do but so transfer their power as they still retain the habitual power in themselves This King James in his Declaration to all Christian Monarchs calleth the Principle of sedition and unto this may be added another of a more ancient date but of the same mould That allegeance is due to the Politick capacity of the King and not to his natural Person Upon this assertion was grounded the damnable opinion and practises of the Spencers in Edward the Seconds time and very probable it is that this opinion made the way more smooth and easy for deposing that King by the infection it infused and the influence it had upon that Parliament Although not long before Rotula Parlamenti those Spencers were amongst other treasons charged with publishing in writing That homage and allegeance was by reason of the Crown and not of the person of the King which they said did appear in that no allegeance was belonging to his Person before the Crown descended and so they would infer that the People had power to depose the King The many absurdities in this wild argument the laying it open doth both discover and carry with it the confutation if there had not been enough said against it before From these false Principles may arguments be as well drawn for violation of mens faith and duties enjoyned by divine and humane laws and for the weakning of the authority of all Magistracy and power although it be given by themselves and intended to be exercised for their behoof The Politick capacity of the King which never dyeth never ceaseth is inseparably annexed unto his natural person untill his death and both are conjoyned at the very instant that the right of the Crown descendeth unto him which giveth a new qualification to his natural person and life and vertue to his Office and function His natural person est organicum instrumentum Baldus alii cum Legistis Anglicanis personae ejus intellectualis publicae seu politicae The power office dignity considered simply in it self cum exclusione subjecti cui naturaliter inhaeret non est nisi abstractum quiddam remoto concreto This Politick capacity considered in it self is but as the dead letter of the Law without the conjunction of the natural person which giveth it life and vigor In respect both of his natural person and Politick capacity the King is termed in Law Lex loquens Lex animata and his authority and office indesinens Consulatus Allegeance is therefore due unto his natural person to which his politick capacity is as it were appropriated and incorporated both of them give and receive vertue to and from each other His natural Person Coke case Post-nati his Politick capacity his Crown and dignity in our law-books and Acts of Parliament are taken for one and the same often Nihil ne minimum quidem inter Regem Regiamque potestatem esse Thuanus lib. 105. nec Regiam dignitatem separatum quiddam extra administrationem Regni dici aut singi posse There is no difference between the King and his Kingly Power and office by an indissoluble bond are conjoyned his natural person and his politick capacity his person and his power his person and Majesty his person and Crown These all are naturally conjoyned by Gods ordinance and by the Institution of Monarchy and a curse is laid on them who separate those whom God hath joyned The King our Head and the life of the Law by the virtue and influence of his Regal power he onely giveth and preserveth the benefit of Lawes at home and Leagues abroad made by him with Loraign Nations And yet we see to the admiration of men that our Rebellion in England of the largest extent that ever was by an example not the like to be found hath claimed and obtained the benefit and advantage of all leagues formerly made by their Soveraign with other Princes and States who were in no age so apt to comply with Rebels for their profit and advantage without regard of their honour neither the incouragement they give to others of rebellious spirits or of the evil example which hath and may justly come home unto themselves Foraign Princes as they are not Judges so ought they not to make themselves parties in those odious quarrels between Princes and their Subjects They ought to be peace-makers which is one of the most glorious titles that can be given
tua res agitur licet aedes demoliri vicini ne ad nos incendium veniat The Romans would not suffer an increase of power by iniquity L. 49. F. ad leg Aquil. l. 3. F. de Incendio l. 7. F. quod vi aut clam Salust Cicero Majestatis erat Populi Romani non pati cujusquam regnum per scelus crescere It was none of the least branches of the Romans glory who were the mirrour of magnanimity that their Common-wealth might truely be reputed Patrocinium orbis terrae potiùs quam Imperium Regum Nationum portus perfugium But yet the Romans were seldome losers by protecting and ayding others for by that occasion they got much of their dominions Salust Cicero Populum Romanum sociis defendendis terrarum omnium potitum fuisse God gave them as some say universal dominion for their excellent vertues and laws others say it was given them to scourge the tyranny and vices which did raign amongst other nations and to end the discord and contentions amongst them From the discord of Citizens Strangers take their opportunity against them Livius The Carthaginians first passed into Cicily to take part with one side in a Civil war but they endeavoured to make a prey of both For sometimes neighbour Princes have as in the fable plaid the part of the Kite between the Mouse and the Frog and ended their strife by gaining that and more then that for which they did contend as the Turk did in Hungarie when they called for his assistance And thus other Princes have dealt with the Italians at war amongst themselves until strangers got all or spoiled all they left behind them Other Princes when their Neighbours have been in Civil war have endeavoured to break the course thereof and joyned with one side lest when both were weakned the whole should fall into the hand of some potent neighbour or enemy of theirs The Roman General Quintius offered his assistance to the States of Greece Livius lib. 34. to destroy Nabis the Usurper of Sparta lest the contagion thereof should spread farther and take hold of the other Common-wealths and Cities of Greece CHAP. XVII Of the King and of his power in Parliament THese pretended Patrons of Popular liberty or rather of licentiousness and confusion can find no way so meet in their conceit for maintaining their Plots as parity in Ecclesiastical Government which being once established in the Church by the example thereof King James book to his Son the Politick and civil State should be drawn to the like And therefore they will have an actual power to be joyntly in the People with their Soveraign in making of Lawes which they call their Legislative power in Parliament so as they would leave unto the King little or no power with his negative voice and would weaken all his rights in Parliament but especially his right of dissolving Parliaments They would make him inferiour to the Roman Tribunes of the people Livius Plutarch for any one of them by his negative voice could cross that which his Colleagues proposed to the People and any two of them could stop all proceedings and dissolve all the solemn assemblies of the people called by the authority of the other Tribunes But say what they can they cannot find his Legislative power to be any other thing then the Regal power and a principal part and branch thereof although in many cases it be very justly restrained in the use and exercise thereof to the Kings sitting in his Parliament his Supream Court and Councel with all the estates of the Kingdome but this is not in respect of any power or original and habitual right inherent in the people The Commons are called by their Writ ad faciendum consentiendum his quae de Communi consilio Regni nostri ordinari contigerit as were the people by the ancient Canons of the Church called to the election of their Pastors and Prelates Distinct. 63. c. 1. c. 12. c. 8. c. 36. non quod debent imeresse ut eligentes sed ut consentientes nullus invitis pepulis non petentibus ordinetur ne Lpiscopum non optatum aut contemnant aut odiant Is eligatur qui à Clericis electus à Plebe expetitus fuerit nec alitèr ascribitur Matthias Apostolorum Collegio Acts 1.15 6.2 Cpyrianus nec aliter septem Diaconi creantur quà m Populo vidente approbante Haec exempla ostendunt sacerdotis ordinationem non nisi sub Populi assistentis conscientia fieri oportere And thus by the same reason and equity it is that Lawes which bind the estates and lives of men and are for the common good of all and singular Persons should be made in the great Council and supream Court of the Kingdome by the advice and assent of all the Estates of the Kingdome By which course the just rights and liberties of the people are preserved and taxes and levies of money on the people imposed onely by Parliamentary authority as they ought to be For thus the People are induced and ingaged to a willing observation of those lawes and submission unto those impositions for the making and raising whereof they have given their consent It was said long since by a wise man that in ancient time and to the honour of England Commines it was best governed of any Kingdome the People least oppressed the Kings living upon their own revenues subsidies granted but onely for war with France or Scotland and the war undertaken by the advice of Parliament by which means the King was the stronger and better served and he addeth also that Princes cannot levy on their Subjects without their consent If we look upon our most ancient Statutes or rather Charters of our Kings and the form and stile of them we shall find no Character of any legislative power in any but in the King neither so much as the Peoples concurrence or consent in any Parliamentary way It appeareth in our ancient Histories Mat. Paris Hoveden alii that during the Raign of diverse Kings after the Norman Conquest the Kings when they called their great Councel or Parliament the summons went only to the Prelates Earls and Barons and in some of those Histories there is mention of calling the Commonalty and diverse sage and wise men In Kings Johns time the first summons upon record appeareth to the Prelates and Peers S. Rob. Cotons collections and something may be gathered although darkly of the admittance of the Commons Before that time every man by his tenure held himselfe to his great Lords will in whose assent his dependent Tenents was included These were long after the Conquest taxed and assessed by the consent of their Lords of whom they held who enjoyed great Regalities in their Signiorîes and were to their vassalls totidem Tyranni saith Mat. Paris These great Lords did so curb and restrain