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
entrance they presently enter into a breach of two principall Pillars and rights of Empire ever accounted inter jura summi Imperii the one is the Usurpation of the power of raising Money upon the people the other is the Arming and drawing together of Soldiers For the first the law porvideth ut vectigalia nova Tit. Cod. nova vectig lib. 10. F de Publicanis Deciss Rotae Rom. L. ult F. de vi pub nullo decreto Civitatum institui possint nec ultra antequam consuetudinem inconsulto principe nec sufficit quod agatur de communi utilitate seu necessitate civium nisi ob damnum inevitabile evitandum Qui nova vectigalia exercent tenemur lege Julia de vi publica quia vis Reipublicae datur Force is thereby offered to the Common-wealth as much as by raising and arming of Soldiers Tit. Cod. ut arm usus Lib. 17. Cod. de re milit the other apparent usurpation of Regal Authority Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur This is a universal Law at this day in all Kingdomes and Common-wealths and before this Law the ancient Law of the Romans made him guilty of high treason L. 1. L. 2 F. ad leg Juâ—iam Majest qui injussu Reipublicae bellum gesserit delectúmve militarem habuerit exercitum comparaverit vel quò homines armati cum telis in urbe sint and with this agreeth the common saying nemo tractet ferrum nisi qui sceptrum the sword and the sceptre go together Ordo naturalis mortalium paci accommodatus hoc poscit Augustinus ut suscipiendi belli authoritas atque consilium penès Principem sit Our Laws and statutes concurre herein and especially in prohibiting the arming of men without the Kings authority and of this one proofe amongst many may serve for all In the seventh year of Edward the first the Parliament did fully acknowledg that in them was no power to deale in matters of armes the words of the Statute are that in all Parliaments men shall come without force and armour well and peaceably to the honour of us and of the Peace of us and our Realm and that all the Prelates Earles Barons and Communalty assembled have said that to us it belongeth and our part it is by our Royal Segniory strictly to defend wearing of armour and all other force against our Peace at all times when it pleaseth us and to punish those which do the contrary according to our Laws and usages of our Realm The Subjects are bound to go with the King to the wars at home and abroad Cook Postnaâ—â— and this sheweth natural allegiance not to be local as doth appear by the Common Law and by divers Statutes declarative of the Common Law Cook upon Littleton It is the Kings peculiar right to call all his Subjects to armes especially all those who hold by knights service and to carry them with him when he maketh a voyage Royal or send a sufficient man in their place or pay Escuage And therefore there can be found no Law or reason to justifie the imaginary right of the People or Parliament in the Militia Salutem Reip. tueri nulli magis convenire quam Caesari Deoff Praefectivigil F. Salust nec alium ei rei sufficere quà m Caesarem qui cohortes militares opportunis locis constituit eam esse conditionem Imperandi ut non aliter ratio constet quam si uni reddatur As there are somethings which a King cannot get from his subjects but being either wrested from them or imposed upon them do destroy the essential pars of natural and just liberty and doth render them rather slaves then free-men so are there also some essential rights of the Crown which the Subjects cannot obtaine from their Soveraign by any grant or prescription without destroying the essential and individual rights of Monarchie A King cannot grant by his Charter neither lose by prescription as all the Interpreters of the Laws agree those rights called the flowers of his Crown which are Regalia suprema summa jura Imperii regno tuendo servientia inherent to his Royal Function and Politick Capacity and serve for the strength and support thereof And so by the Canon Law Licet generalis sit tibi concessa legatio Decretal de officio Legati cap. 4. ad ea tamen sine speciali mandato non debuisti manus extendere quae in signum privilegii singularis sunt tantum summo pontifici reservata Illa jura non sunt in commercio quae propriè sunt Dominii Diadematis Domanii Regii quae sunt de bonis juribus reservatis in signum subjectionis recognitio supremi universalis Imperii seu potestatis for by such grant or release would ensue as the Lawyers say deformationem demembrationem turbationem publici Status imperii And such are the rights of making war and Peace of having the last appeale unto him or to his great Councel and supream Court and of making leagues and of dispensing with penal Laws granting pardons and such like For the exercise of his just rights and the administration of his Regal office is committed unto him by God without any permission to suffer the destruction of them or any of them Themistocles declared to the Athenians and Cato to the Romans that man could not usurpe or prescribe unto any thing which was due unto the divine Majesty neither could private men do the like unto the Common-wealth L. 34. F. de contrah empt L 6. de contrah emp. F. L 9. l. 45. de usu cap. L. 7. tit 37. 38. Cod. The alienation of those things are by the Law forbidden quae natura jus gentium vel mores civitatis commercio exuerunt ut sunt sacra religiosa aut quorum commercium non sit praescriptio longae possessionis non concedi in rebus sanctis sacris vel publicis Populi Romani nec in rebus Fiscalibus vel Dominicis quae sunt propriae principis In the treaty between the King of Spains Commissioners and the Hollanders in the year 1607 it was often urged and not gainsaid for ought appeareth that the supream rights of Majesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects Relationes Baudii Meursti neither lost by any prescription or lapse of time And yet may a King passe by his grant and lose by prescription some things of profit and of his revenue and other inferiour rights and Regalities according to the Laws and customes of several Kingdoms And in some cases prescription doth ly in all Kingdoms against the King or else controversies would remain immortal So likewise grants alienations and contracts made by the King for just causes and in legal form are and ought to continue valid lest many inconveniences and much injustice should follow and the
King be in the worst condition of all men sit quasi exul qui est omnium praesul Baldus He is tyed by the Laws of nations and nature to observe just contracts which as the Doctors say he cannot make void and revoke de plenitudine potestatis suae The Lawyers affirm that vectigalia alia emolumenta ex jurisdictione provenientia alienari possunt in parte praescribi possunt firma manente jurisdictionis suae suprema exercitatione apud se et successores suos Baldus ita ut sit sine diminutione authoritatis supremae derogatione directi dominii Principis * No Act of Parliament can bind the King from any prerogative which is sole and inseparable to his Person And although some of these Regalities seem to be reserved yet are they grantable and subject to prescription as creare Tabelliones monetas cudere exactiones vectigalium aliquorum and some others quae cùm sint inter minora Regalia corporis summique Imperii Patrimonii Regii integritatem non imminuunt In his praescriptio valeat contra fiscum * Peregrinus de jure fisci alii Chopin de doman Reg. Codex Fab. Sex tinus de Regalibus Tributa alia publica functio seu collatio nullam temporis praescriptionem admittunt Cod. l. 6. de Praescript 30. vel 40. annorum Et generaliter res Fisci non usucapi l. 2 Cod. communia de usucapi Institut de usucap l. 18. F. de usucap temen sunt aliqui casus ubi praescriptio locum tenet contra Fiscum per leges constitutiones Imperiales l. 4. l. 6. de Praescript 30. 40. annorum Cod. l. ult C. de Fundis Rei privatae l ult C. de Fundis Patrimon caus 16. quast 3. c. 16. de Tributis aliisque prensitationibus publicis nullo temporis spacio praedia redduntur immunia non sic de alio jure publico principali seu Fiscali Feudali Cujac consultatio 54. Census tributa domnium Principis res sunt inalienabiles imperscriptibiles quarum vindicatio nulla temporis praescriptione submoveatur His ancient and just tributes and customes and his right of imposing moderate gabells and taxes are not alienable neither within the reach of prescription as likewise the domaines of the Crown called the Royal Dowry for when these are taken away he doth lose his peculiar and proper livelihood and the ordinary means to support his estate and the Common-wealth receiveth much detriment when the King hath not wherewith to live of his own but the people must be continually burthened with exorbitant and illegal Taxes and courses used for raising of money the most usual causes of discord between the King and the People often producing Insurrections and Rebellion and sometimes made use of by factious and discontented persons to justifie or colour their designs against their Soveraign The Emperour Vitellius unto some men released his Tributes Tacitus to others he granted over-large immunities without care of posterity he mangled and maimed his Empire The Common sort accepted these favours the fools bought them with money which wise men accounted void as being such as could neither be given nor taken with the safety of the State CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patens or Grants BUt we cannot finde any grants of Vitellius or of other Roman Emperours or Princes subject to more just exception either in respect of the matter and things granted or the means used for the obtaining of them or the end and purpose for which they were obtained then that act of Parliament whereby the King was to pass away his power of the Militia and raising of moneys upon the People for maintenance of forces by land and sea at the will of the Parliament the ready way to out himself of all power of War and Peace of arming or disarming his own Subjects or any others upon what cause soever contrary to the rights and safety of Monarchies and to the Laws and Statutes of England as hath been before declared But this was as the Psalmist saith to strengthen themselves in their wickedness and to worke their iniquity by a Law The King might as well have granted them jurisdiction over any City or County of his Kingdome independent as unto himselfe and exempt from his authority and the Laws of the Realm and without appeal to his supream Court and he might as well have passed away his peculiar right of pardoning offences and despensing with penal Statutes The Doctors of the Civil and Canon Law say that a King in what grant soever cannot abdicare à se superioritatem suam jus illud supremum Baldus Alexand Angelus alii quod semper praesumitur reservatum nec concedere censetur totum hoc privativè quoad se successores suos ita ut non possit alteri jurisdictionem dare aut potestatem quin ei remanet major jurisdictio potestas quam fuerat translata neque tamen quocunque modo Regalium concessio fiat Sixtinus de Regalib lib. 1. cap. 5. ipsius Imperatoris aut alterius Regis superior potestas ea concessione comprehensa censetur sed potius major quam est concessa illis reservata retenta sit neque potest à supremo Principe licet velit ita concessio fieri ut superior potestas in alium transferatur The fairest and the most specious pretences and the strongest and most legal tyes and formalities make that which is evil in it selfe the most pernicious and abominable damnabilis est malitia quam titulus bonitatis accusat Salvianus this Statute therefore being such and so qualified and so destuctive to that power wherewith Kings are intrusted by God and invested by the fundamental Laws of their Kingdomes and serving most properly to raise and continue discord between the King and his Subjects cannot but appear to all men to be as absurd as pernicious And like this was that other act and of the same leaven and mould with that act of the MILITIA which was made for the continuation of the Parliament until both Houses should agree for the dissolving of it But they did not stay for that agreement for the Parliament was dissolved against their will by the irruption of the soldiers And yet before that they did dissolve it themselves although besides their intention when they deserted the King and his authority and acted contrary to their writ of summons and to the rights of both King and People But more apparently when they suppressed the House of Peers and ran away most part of them together with their speaker unto the protection of the Army and so became the
Armies Parliament under which power they still afterwards did sit and act leaving the Parliament without any Lawful adjournment sine die sine capite sine corpore This Law for continuation of the Parliament so directly contrary to the institution and essence of Parliaments and the undoubted right of Kings to call and dissolve Parliaments was another new and strange Law Lex nova inaudita as was said of the Roman Law Agraria from which great seditions took their first rise and from those seditions Civil wars which never were fully ended until that Common-wealth was utterly destroyed by the usurpation of Julius Caesar Salust Paterculus It was a Law quae summa miscuit imis a Law unde jus vi obrutum erat For the iniquity of our two Statutes before mentioned they may fitly in many respects be compared to this Law Agraria which Tiberius Gracchus the Tribune of the People preferred to flatter the People to continue himselfe in his office that he might be the more safe from the Nobility and rich men his enemies the better bring his designes to effect This Law being very plausible to the Commons Julius Caesar revived to assure the People unto him and to obtain their compliance with his usurpation It was a law seditious in it self serving aptly to imbase and make contemptible the Majesty of the Senate and Consuls but in respect of the meanes used to make it pass with their votes it was abominable for tumults were raised on purpose and such violence was offered to one of the Consuls for opposing it that the Ensigns of office carried before him were broken Plutarch in the lives of Caesar and Pompey and a basket of dust thrown upon his head and two Tribunes and some others in his company were wounded and soon after came to an end the Roman glory and their liberty Insomuch as many of the wisest seeing the madness of the People and their contempt of Laws and their former government thought themselves happy if the Common-wealth was no worse afflicted then with the burthen of an absolute Monarchy It is not the retaining of some of the usual form and solemnity as was in the making our two Statutes that maketh a binding law if the principal and essential parts and properties of a Law be wanting For a Law hath no force nor virtue when the material and final causes and reasons of a just Law do cease and are determined and the execution of that Law would prove injurious or absurd And so a Law or Grant whose foundation and ground is laid upon a fiction or presumption of a fact or thing which never had any existence and being Medina Felin alii Ancharan Decius alii Decis Rotae Rom. hath naturally no force efficacy as having no consent of the will but onely under an implyed and supposed condition Quae reipsa non extitit sic veritate facti deficiente totum legis desicit fundamentum quia haec est obligatio quasi ex falsa causa quae nulla est obligatio cùm deficiat voluntas ejus qui se obligavit cum aliquo praesupposito deficiente veritate dicti praesuppositi Jus supposititium lex improbat Moreover if a Law although it had at first just causes and reasons for making of it which after fall off and cease doth lose its force and vertue what may we say of our two Statutes and some others made in this long Parliament which in lieu of just and legal causes and reasons were fraudulent pretences and illusions put upon the King to obtain his assent and to abuse the people for the advancement of evil designs and the strengthening of a pernicious faction In a stipulation or promise although for the making of it there was just cause L. 2. F. de except doli L. penult F. de condict sine causa Cuiac alii sed nunc nullam causam idoneam habere videtur vel causa non secuta aut finita est datur contra petitorem doli mali exceptio quia non refert utrum ab initio sine causa aliquid datum sit an causa propter quam datum sit secuta non sit vel ex post facto redierit ad injustam vel nullam causam ita ut datum videatur sine causa Inomnibus causis quae jure non valuerunt L. 54 F. de condict in debiti l. 36. de verb. obl vel non habuerunt effectum revocatur quod datum vel solutum erat All stipulations are in their nature stricti juris and therefore not easily made void yet if one be bound contrary to his will by machination and practise he may void such stipulation And so all other contracts grounded upon deceit are void or voidable where there is dolus ex proposito dolus dans causam contractui vel ubi res ipsa in se dolum habeat And the Law doth ever provide ne quis ex dolo suo lucrum habeat L. 36. F. de verb. obl Exceptio doli accomodatur ei qui aliter obligatus est quam convenisset licet alioquin subtilitate juris obstrictus esset nihilominus repellit agentem ex stipulatu ctiamsi nulla sit ab isto adhibita machinatio dum tamen ipsares in se dolum habeat And yet not every deceit nor every fear will void promises contracts and grants as that fear is reputed sufficient which may overcome a man indued with fortitude so that deceit seemeth by law sufficient which may deceive a prudent person so as the fear or deceit were the immediate cause without which the man would not have done the act But how far this fear or deceit shall extend according to the quality nature and condition of the persons and other circumstances and whether deceit errour and ignorance do more abolish the consent of the will then fear or violence is to be left unto the Judges as a question of fact and so the Interpreters of the Law agree after much diversity of opinions amongst them As in all grants and releases fraud is alwayes presumed to be excepted so shall they not extend unto that which the party granting or releasing may justly be presumed to have not had thought either in specie or in genere non ad inopiata incognita extenditur dispositio Decis Rot. Rom. Farinacii Decis Rot. Rom. Lib. 2. Cod. de rescind vend Lib. 7. Cod. Quando provocare nec ultra ea pro quibus factum erat so general words shall be restrained ad rationem causam propter quam fuerunt prolata and so in case of excessive hurt and damage per enormissimam laesionem aut error aut ignorantia aut dolus ex reipsa praesumitur A sentence and decree shall not bind if it passed through bribery and corruption per sordes turpitudinem ipso jure nulla est although the Law saith interest Reipublicae non convelli rerum judicatarum authoritatem quia
a long time the King that there was great danger they would have raised an Aristocracy or several petty Principalities so lofty was their carriage towards their King which in time would have strangled the Monarchy and all under the pretence of the publick good which drew on that long and destructive war called the Barons war and made it the more plausible and popular After these combustions ended and the King the Lords and people were reduced to reason and moderation which often was wanting on both sides then the Statutes made in the time of King Edward the First and Edward the second had these words Statutes made by the King in Parliament at the request and petition of the Commenalty with the assent of the Prelates and Pears And so in the Fifth year of Edward the Third at the instance and special request of the Commons with the assent of the Prelates and Peers we have ordained and established and so in the succeeding raign of Richard the Second and in the first of Henry the Fourth Thus did the force and efficacy of our Lawes proceed from the Kings Legislative power acting by and with the concurrence of the three Estates in Parliament contributing their assistance according to their respective duties and the trust reposed on them This concurrence doth serve excellently for the direction regulation and in some respect for the qualification not for the diminution but for the support of the Kings power and rights The absoluteness and generality of this Regal power being also in many cases often restrained in the administration of Justice in the inferiour Courts of Justice by the Common Law of England and by the Lawes and customes of other Kingdomes And therefore the assistance and concurrence of all the Estates in Parliament cannot amount unto the raising of any coequality or competition of power the influence of the Soveraign power is that which giveth life to the making and to the execution of all Lawes both Houses of Parliament acting according to their duties and not exceeding their bounds the rights and prerogative of the King is neither restrained nor obscured but guided strengthned and carried with greater vigour and Majesty for his and the Peoples most good and security If our Kings had any co-partners in the Legislative power or were less in Parliament then when they were out our Judges have been much out and deceived him and others in affirming oftentimes to the Kings that in no time they were so high in their Royal estate as when they sate in Parliament The Canon-Lawyers say the Pope is greater when he sitteth in a General Council in respect of the amplitude of knowledge and the spirit of discerning After the Romans had transferred all their Supream power to their Emperours yet did the Senate afterwards make divers Lawes called Senatus consulta which were often concomitant or subsequent to the Imperial Edicts yet this was never held to be a conferring or communicating of any part of the Legislative Imperial power no otherwise the Kings of France do grant to the Parliament of Paris when their arrests concurr with the Kings Edicts which are there usually ratified Cujacius Pet. Faber Semest lib. 1. cap. vult Optimi Principes non dabant ullam constitutionem sine authoritate sententia Juris-consultorum Edicta Principum Romanorum sic Regum Galliae plerumque subsequebantur Senatus Consulta Quod Principi placuit legis habet vigorem leges condere soli Imperatori concessum est legis interpretatio solo digna Imperio est Imperator solus conditor Interpres Legum est Institut Jura nat gens Lust Cod. de legibus Tit. F. de origine Juris Lib. Feud constitut Lethaeri Fred. Imperator licet Augustus Caesar constituit viros prudentes ad jus interpretandum ut major juris authoritas haberetur The Emperours since have made their Lawes hortatu consilio Archiepiscoporum Episcoporum Ducum Marchionum Comitum Palatinorum caeterorumque Nobilium Judicum yet this was never holden to be a communicating of their legislative power Long time in the French Monarchy Lawes and Edicts were made by the King per suum magnum Concilium as in England and so were causes Civil Criminal and Fiscal determined and judged by our Kings or his Council or by his delegated poer to others before the Courts were established at Westminster as appeareth by our Histories and Records The three Estates in France and Spain did never in the former times when they were most in use and power challenge any part of the legislative power neither did their Historians and Lawyers ever grant it to be in them for ought appeareth Bodin doth acknowledge that in England the excellent institution and use of Parliaments hath longest continued De. Repub. and saith that legum rogatio probatio non arguit Imperii majestatem licet autoritatis speciem Ordines Angliae autoritatis quaendam habeant jura Majestatis summum Imperium est in Principe And so a learned Hollander Grov de Jure belli lib. 1. C. 3. no slatterer of Monarchy saith they are greatly deceived qui existimant cùm Reges acta quaedam sua nolunt rata esse nisi à Senatu vel alio caetu aliquo probentur L. 8. F. de Constitutionib L 1. Cod. de legib partitionem fieri potestatis The supream Senate is as the Emperour in the Golden Bull calleth the Princes Electors partem corporissui columnas latera solidacque Imperii Bases jus dandi suffragii in Comitiis Imperii Germanici non trahit secum majestatis communicationem cum majest as indivisibilis sit nec Electoribus Principibus aut Statibus Imperii communicari poterit Tamen nihil majestati detrahitur si in partem solicitudinis Imperatoris invocentur exemplo veterum Imperatorum Romanorum qui et si habuerint summam potestatem ut quodcunque Imperator Edicto statuit legis habebat vigorem nihil tamen magni ponderis sine consilio consensu Senatus expediebant * Arumns ad aur bul non obstat quod dicitur in L. 1. F. de constitutionibus Quod Principi placuit legis habet vigorem quia sequitur in fine legis non quiequid de voluntate presumptum est sed qùod concillo magistratum suerum Rege auâ—â—ritatem praestante habita super hoc deliberatione tractatu recle fuerit definitum Bracton Fleta L. 8. Cod de Legibus Bartolus ali L. 1. F. de legibus Moreover long before the Empire was established in Germanie when the Roman Emperours granted unto diverse Princes and States of the Empire that without them and that form by him prescribed lawes should not be made or held effectual nisi supradictà formà observatà ita ut universorum consensus nostrae serenitatis autoritate firmetur c. It was never holden by the interpreters of the lawes that the Emperours did or could by his grants
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-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
likewise publick and notorious Robbers and Invaders L. 2. Cod. quendo liceat unicuique l 2. Cod. de desertorib Faber semest Cap. 2. de Privilegiis in Decret and such as run from their Colours and Captains in time of War cunctis adversus latrenes publicos desertoresque militiae jus exercendae publicae ultionis pro quiete communi indultum est ut non modo defendendi se sed ulciscendi causa propter publicam utilitatem Ecclisia violentos laicos coercendo non dicitur contra legem agere sed legi subsidium praestare The reason which doth justify this irregularity in proceeding against such malefactors is given by Cicero quia in tanta perturbatioue rerum temporibus potius parere quam moribus and the Law agreeth with it also quia latro manifestus vel seditio praerupta factioque cruenta moram non recipiant L. 6 9. F. de injusto rupto Testamento Those who are in rebellion against their Soveraigne are in another respect in a worse condition then all other delinquents for all their transactions and agreements made with their Prince during the time they are in armes are void and so it was declared to Henry the forth of France by men of great prudence and learning Thuanus and the like was said of the Hollanders some years before For what Peace and transaction is that Ayala de jure bel saith Cicero by which nothing is granted unto him with whom the Peace of transaction is made Transactio nullo dato vel accepto vel retento fieri nunquam possit L. 28. Cod. de Trans If the King and Common-wealth recover again their former estate after a rebellion although upon hard conditions yet the Kings condition and those in rebellion will prove afterwards very different and unequal for whatsoever they got by armes they lose in the time of Peace Thâ—â—n lib. 105 perit illis Regi accrescit ejusque potiorem eventu conditionem esse qui jure potior est as the Marshal Shomberge said unto Henry the forth of France when he perswaded him to make Peace with his Rebels almost upon any conditions quia Princeps ex hoste fit dominus and this causeth those in rebellion to be so unwilling to submit or trust unto any accord or assurance given them The old saying doth stick in their minds he who draweth his sword against his Soveraign must sling away the scabbard Although these agreements and transactions with those in rebellion are void but upon condition they first submit and return to their former obedience Livius qui pacem petunt inermes postulare de pace agere debent was the course holden by the Romans with those who were not their subjects Cicero Hostibus non aliter pacem concedebant Romani quam si armis positis eam petant sin autem pugnantes eam postulent victoriâ pax non pactione parienda est But this Roman magnanimity is lost in this latter age and Princes are necessitated oftentimes to wave much of their right and to treat otherwise with those in rebellion for the obtaining of Peace the most inestimable blessing upon a nation and so necessary that Cicero saith a most unequall and unjust Peace is to be preferred before the most just war Princes therefore ought rather to regard what they ought to do for the good of themselves and their People then what they deserve to suffer who offend and he seemeth to do most wisely who setteth revenge in the last place and taketh it in hand when all things are made sure French Invent. It was observed of Charles the seventh of France who had sharp war with the English and with his own subject almost at one time that his clemency and his endeavours to obtain Peace did not cause him to neglect just and necessary severity neither by immoderate and unseasonable revenge which is rather a wasting then correcting did he dissolve the bonds and cut off the hope of reconciliation and unity which would keep the wounds continually bleeding and festering and cause new maladies to increase and multiply Salvianus Multo felicius est laudabilius suis aliquando etiam immeritis ignoscere quam in suos meritò vindicari It is observed that Hannibal was cruell and Scipio his adversary was full of Clemency yet each of them accomplished their designes although they took a contrary course to each other Machiavil dis lib 3. c. 21. 22. But men easily slip often into a defect and danger by the use of cruelty or clemency if it be not corrected by an extraordinary vertue and conducted with exquisite prudence It is often observed that by treating with rebels Ayala de jure bel lib. 2. c. 7. quorum arrogantiam patientià módesâ—â—â vincere arbitramur ferociorès rèddamus priorem ferendo injuriam invitas novam Cupiditas istorum hominum aliquid tradendo iis non restringitur sedinflammatur quicquid concesseris initio ad ulteriùs penetrandum sit gradus Buchanan Scot. Hist I cannot let pass the error of those who are too quick in charging men with treason some out of indiscretion some out of a desire of revenge or to advance some designes by taking him away that is an obstacle some guided by the votes in Parliament will have all men guilty of treason as far forth as they themselves who are in rebellion for giving the King ill Counsel as they pretend or for executing their authority civil or military in an exorbitant and illegal course and so make these to be enemies of the Common-wealth destroyers of the fundamental Laws and liberties of the People and raisers of war against the King and the People Although such Counsellors and Ministers may be in part guilty of some of this and therefore deserve severe punishment yet not the punishment due for high treason and rebellion To take in all these crimes into the Crime of high treason would cause a boundless and indefinite definition and description of high treason and would appear contrary to the understanding of the Interpreters of the Laws and to the intention of all Law-givers and confound the wits of the best Logicians to make it probable This doctrine would often hinder the endeavours of the best and most able Counsellors and Ministers to the great prejudice of the Prince and State in making them timorous and ever uncertain what to advice or act And this were also to make him guilty of treason who resisteth by force and armes the execution of any judgment and decree of a Court of Justice which would be very absurd L. 5. F. de Crpit minut Non omnis resistentia armis facta adversus Judiciarii decreti executionâ—m neecum cives inter se tumultuantur sit tantum partium saclionum certamen dicitur crimen perduellionis laesae majestatis sedubi aliqui desiciunt ab his quorum sub Imperio sunt vel cum
by which peculiar law the eldest is preferred without respect of the whole bloud Neither doth infancy worke any disability in the Person of the King Lord Chancel case of the Postnati or by being born an alien and all this in respect of his politick capacity adherent to his natural Person and so all defects are purged and all impediments removed by this regal right of succession CHAP. XIV Of the Beginning and Continuation of Kingly Government IF this supream power as they affirme be still inherent in the People and that they had this supream and original power immediatly from God or by his will and approbation and that the power of rule and domination by vertue of the Law of nature is in the community of men and in no particular Person and although they do transferr this power yet they may when there is a cause assume it again How then can they reconcile themselves with St. Paul who saith the Powers are of God are ordained of God or with Saint Peter who saith whether it be to the King as the Supream And how can they reconcile their doctrine with that which Aristotle and other learned men affirme that by nature most men are subject and servants to others minùs sapientes minùs perfecti natura ipsa sunt servi sapientibus subditi ut ab aliis regantur and these thus Subject are the greater number Aquinas Servitus est naturalis ratione utilitatis consequentis scilicet quod quis regatur à sapiente licet est contra primam naturae intentionem est tamen secundùm naturam juxta ejus secundam intentionem ita est ordo naturalis in hominibus ut serviant aliqui Persona est domina vâ—l serva ratione naturae Fst utilis servitus cùm improbis aufertur injuriarum licentia domiti se melius habebunt quia indomiti deteriùs se habuerunt Augustinus Licet initio homines natura liberi nascebantur jure naturali non trant dominia distincta in ipso quidem statu naturae primo non tamen ex hoc negatur posse jure humano gentium hominum crescente malitia statui servitutem fieri dominorum distinctionem idque ratione naturali factum fuisse apparet ex eo Covsruvias quod utile valdè Reipub. sit societati humanae L 19 de Civ Dei cap. 15. And so Saint Austin Nullus natura in qua priùs Deus hominum condidit servus est hominis aut peccati verum poenalis servitus ca lege ordinatur qua naturalem ordinem conservari jubet perturbarive vetat quia si contra cam legem non fuisset factum nihil esset pâ—nali servitute coercendum * Servitus est contra jus naturae propriè quoed statum innocentiae quò ad statum post peccaium non est con tra jus naturale Imò servitus aliqua saltem quo ad statum post peccatum dici potest secundum jus naturale quatenus est quaedam paena determinate jure humano pro delicto quod jure naturae castigandum est ut sentis Thomas Navarrus Seeing therefore that the best and wisest men are and ever were the fewest in number and that the greater number are by the law of nature and ought of necessity for the preservation of human society to be in subjection or in servitude and cannot have a right unto liberty in respect of those many imperfections and vices which do raign in them how can they have a right unto domination and rule and to transfer a power which they never had neither were ever capable of it unless it be such power as they have lately usurped in our Countrey whereby they have out in sunder the reins of †As did those ten Tribes who usurped upon the lawful progeny of David as they did upon Gods right who said unto them Ye have set up Kings but not by me and made Princes that I knew not Hosea 8.4 Government and brought all things into confusion Sin cast us all into servitude and out of this servitude all could not arise and have a natural right unto either domination or liberty What power of domination can we find that God gave at first to his selected people the Jews or was in them by nature In the time of the Patriarchs all supream terrestrial just power Paternal Sacerdotal Regal was in them They were before the Law given in the place of Kings and Priests What power can we find that God gave unto his people or was in them when he gave Kings to rule over them a government most agreeable to nature and which carrieth with it the most appearance of the divine approbation and imitation a Government in the infancy of the world proceeding immediately from the Patriarchical derivatively and ex traduce We find in the first age of the world after the Floud mention made of Kings which ruled every where Genes 14. Deut. 17. and of the first war wherein many Kings were ingaged and no mention of any other Government then Regal Genesis 36. Deut. 14. De Civit Dei lib. 16. c 17. c. 3. There were diverse Kings of Edom and in all the Countreys round before there was a King in Israel In the time of Abraham saith St. Austin eminentia regna erant Sycionorum Egyptiorum Assyriorum and before that time rose up Nimrod saith he factum erat initium regni ejus Babylonici And here by the way we meet with an argument of the Anabaptists which is that seeing from such a Tyrant Monarchy and Magistracy had so evil a beginning it ought not to be held lawful But there is a difference between the powers which are of God and the administration or the evil execution of those powers as there is a difference between a lawful power unjustly used and an unlawful power justly used for as St. Austin saith the malignity of a tyrannical usurpation shall never be purged and made praise-worthy although the usurper use all clemency and justice in his Government nor the Regal power ever be subject to just reprehension although a King become a Tyrant Causa 14. quaest 5. cap. 9. Aliud est injusta potestate justè velle uti aliudest just â potestate injustè velle uti Although Tyranny did begin by Nimrod yet Government and Magistracy proceeded not first from him It was established by divine decree before him The government of the Fathers of the Families was before Nimrod All the Progeny submitted to the Paternal and Regal government of the Head and Founder of the Family From hence was the original of Regal government and a natural reason and cause for the producing and continuation thereof which reason had its operation amongst the heathens In the beginning were Kings Salust Tacit. lib. 3. Ann. nam in terris nomen Imperii id primum fuit But after equality and moderation were laid aside and ambition
to Princes Leagues are made for the conservation of peace mutual aide commerce and trade They have more of reality in them then to be accounted but as meer personal obligations they mutually oblige as they mutually benefit the Princes their Successours and subjects And therefore to hold that all Leagues are void by the death of those Princes that made them is a great and dangerous errour Imperator percussit foedus videtur Populus percussisse Romanus foedere continetur Seneca The mutual benefit of both Prince and People is conjoyned and involved one neither can nor ought to take benefit by them with the excluding of the other When Henry the Third of France was dead the League made by him with the Switzers did continue in force Thuan. lib. 97. and upon this reason quia non tam cum Henrico quam cum Corona Franciae contraxisse quae nunquam intermoriatur ita Rex dicitur nunquam mori sed mortuum Regem vivo proximo regnum tradere These contracts which are juris Gentium juris publici quia ex publica causa sunt as are leagues do bind each other and their Successours in many cases Baldus Peregrin de Jure Fisci Gentil de Jure bell without express mention quia facta sunt non nomine proprio Principis sed sub nomine dignitatis suae Reipublicae sunt de natura consuetudine ossicii dignitatis Regiae in figura magis Principatus quam suae propriae personae Tenentur successores aut numquid nihil est cautio ista toties usurpata in foederibus Ayala Grot. de jure bel Tenentur successores per has publicas Conventiones quae non nomine proprio sed Reipub. incuntur quae aequè repraesentatur per successores ut per cos qui sunt hodiè It were most unjust and absurd to deprive Princes who are the League-makers and principally concerned in them of the benefit of their leagues by their Subjects rebellion who to receive any benefit by Leagues or Lawes is contrary to the intention of all who make them and destructive to the Majesty and security of all Monarchies and States Beneficium quod habeo propter te Gentil de legationibus non possum uti contra te Cum Praedonibus rebellibus non est jus legationis foederum Delinquendo non acquirenda sunt jura nam jura violantibus jus non violari sed potius redâ—i si non praestetur In talium scelerum noxios nullam vim injustam esse The Romans complaining of the injuries they had received from the Hircani who answered the Romans as did the Sabines That they had made a League wich Tarquine the Roman King whom they having deposed and abolished the Regal Government Dionys Halicar Livius those Leagues were determined with the People of Rome Although the league might be in force with and for the benefit of the King expulsed and his Heirs and Successors Grot. de Jure belli cum Rege initum foedus manet etiamsi Rex aut Successor regno à subditis sit pulsus Jus enim Regni penes ipsum manet utcunque possessionem amiserit The Emperour Justinian answered the Vandals Procopius requiring the benefit of a League that he would break no league with them neither make war against them but against the Tyrant and Usurper who had dispossessed their lawful King and held him in captivity The Roman General Quintus answered the Usurper of Sparta Livius We have made no league nor friendship with thee but with Pelops the lawful King for the very mention of Peace or amity with a Usurper our ears cannot endure And thus when Spartacus such another had gotten strength and made wars by the help of a rabble of thieves against the Romans he sent to Cressus to make a league with him but he rejected it with much scorn as most unworthy the Roman name Tacitus quanquam tunc ingentibus bellis labasceret Respub non tamen datum erat Spartaco ut pacto in fidem reciperetur non alia magis sua Populi Romani contumelia So the Emperour Tiberius was exceedingly offended at the presumption of Tacsarinas the great African Robber for sending Ambassadors unto him Tacitus Florus Indoluit Tiberius quod desertor Praedo more hostium ageret for such are in the rank of those qui foedus humani generis ruperunt Some are of opinion that in an Aristâ—â— aâ—â—cal or Democratical Government if civil war happen both parties seeming to be of equal right and ballance as in that between Caesar and Pompey the Guelfs and Gibelines may send and receive Ambassadors for they are not in the condition of Rebels etsi pereas dissentiones Respublica laeditur L. 21. F. de Captivis non tamen in exitium Reipublicae contenditur qui in alterutras partes discedunt non sunt vice hostium as was said before when two are in competition for a Crown Yet are there diverse examples of Princes and States that in this case would decline all dealing with either party unless for their own interest and advantage and answer as those of Marcelles did unto Caesar in his war with Pompey that they being the Allies of the people of Rome it did not belong unto them to enquire which had the justest cause If either of them would come as friends to Marcelles they would so receive them but if either of them came in any hostile manner they should find from their State no friendly complyance They were not obliged to aid either Caesar or Pompey although they were the Allies and confederates of the Romans neither ought any to have engaged themselves in that pernicious faction of the Guelfs and Gibelines unless it had been to suppress them The case was more ambiguous in the war between the Houses of York and Lancaster yet so as we may not take for a rule that shift used by Lewis the Eleventh who being required by Edward the Fourth to send him aid against Henry the Sixth according to a former league between them answered that the League which was made by him was with the King and Kingdome and he held himself obliged to aid him onely unto whom the Kingdome did adhere Comines Bodin and declare for their King like that saying of an Earl taken Prisoner at Bosworth field who being demanded why he took Arms for the Usurper Richard the Third answered that if the Parliament had set the Crown upon a stock he would have fought for it Camdens Remains The Parliaments in those times did not take on them to dispose of the Crown and so did the Parliament answer Richard Duke of York father of Edward the Fourth when he pressed them to declare his Title against Henry the Sixth Those who affirm that the change in the State and Government doth dissolve former Leagues seem to affirm it upon such change as is fairly effected
with a free and unanimous consent of all or by the immediate hand of God when none are left to continue the Succession and all former rights are extinct but not of such change as is inforced by a detestable rebellion Alb. Gen il disput ad leg Jul. Majestatis de jus belli lib. 3. cap. 23. Grot. de Juce belli lib. 2. cap. 16. Rex Regno pulsus vel in carcere positus ab altero Rege perdit possessionem quo ad aliâ—s Principes sed non ex rebellion subditorum suorum sic fuit responsum à Galliae Rege Edwardo Angliae cum de Regno expulsum ab Henrico Rege sibi regem non viâ—â— ri Sane cum Rege initum foedus manet etiamsi Rex idem aut successor regns à subditis sit pulsus Jus enim regni penes ipsum manet utcunque possessionem amiserit If the State and form of Government be changed as if an Aristocratical Government be changed into a Monarchical the former Leagues remain in force as some conceive quià manet idem corpus Grot. de jur bel lib. 2. c. 16. L. 38. F. de solutionibus etsi mutato capite but yet in all stipulations and pronuses this condition is implyed if it be not expressed notwithstanding that all stipulations are stricti juris tacitè inesse videtur si in eadem causa si in codem statu res personae maneant lest men should remain obliged contrary to their intention when they bound themselves and be by alterations hapning tyed to the observation and performance of that which is injust impossible or absurd Neither can it be said saith Aristotle to be the same Common-wealth if there be not eadem ratio Reipublicae sed alia forma Reipublicae Mutata forma propriè interremptam esse rei substantiam Res abesse videtur eujus forma mutata est ideò si corrupta redanta sit vel transfigurata L. 9. F. ad exhib res abesse videtur * L. 13. F. de verb. signif si sit Identitas materiae diversitas formae res diversa esse dicitur ut L. 18. S. 3. de Pignorat act si sublatum sit aedificium eadem specie qualitate reponatur alterum si quis strictiù interpretetur aliud est quod sequenti loco ponitur L. 20. S. 2. F. deservitut urb The Roman Empire often changed in the form the Empire remaining as is affirmed although it passed to Kings to Consuls from the Senate and Consuls to Emperours sometimes chosen by the Senate sometimes by the Souldiers but it cannot be said to remain alwayes in eadem specie natura The Common saying of the Divines when the Preisthood was changed the law was changed mutato Sacerdotio mutatur jus and so may it be said when the Common-wealth is changed the rights of the Common-wealth are changed although not abolished An idem corpus sit an eadem quantitas L. 11. L. 12.13.14 De exceptione rei Judicatae mutatio personarum aliam atque aliam rem facit L. 22. De excep rei Judicatae an eadem causa petendi an eadem conditio personarum quae nisi omnia emcurrunt alia res est Whatsoever mens opinions are of these changes in Common-wealths and notwithstanding these rules of law before declared Princes and Common-wealths have and they ought to have an eye unto all changes and alterations in States and Common-wealths especially unto violent changes and usurpations amongst their Neighbours for men may justly be restrained and opposed in changing or abusing their own when the interest of another is impeached thereby ubi capiat aliena Respublica detrimentum Gentil de jure belli lib. 1. C. 16. vel siquid iniqui in alios caderet upon which reason Queen Elizabeth in her Declaration printed excused her sending aid to the Hollanders although that war seemed to be just on both sides by that which was delivered in the justification of both parties For by her aiding of them she had their assistance against the King of Spain her enemy and the more hope of obtaining a good peace for her self and those her nearest neighbours and of her religion and the most ancient and continual freinds of the English so that if their condition were changed by conquest their ancient trade and commerce with England to the great hurt of England would be cut off and destroyed through their disability by servitude imposed on them Pericles in his Oration to his Countrey-men said Let us suffer those Cities which are of our association to remain free if they continue so Thucydides l. 2 as they were at the time when we made confederation with them * The Romans in their Leagues did usually insert this Article that the confederates should not suffer the subjects of each other to bear arms against the other neither receive the Traitors fugitives or rebels of each other and so was it in the league between Henry the Eighth and Francis the First but those Kings had in their league this addition That if Civil war did arise in any of their Countreys none of the Confederates should meddle therein unless the war were maintained by some forraign Prince Hist of Henry the Eighth If Princes may have just cause to help the Subjects of another Prince yet as Movillier said unto Francis the First the act whatsoever the intention and reasons are is subject to much envie and misinterpretation as appeareth by divers examples There may be as just cause for a Prince to help another Prince especially being deposed exiled or oppressed by his subjects and with much less envie and more honour King Tarqui â—ing expelled Rome fled unto King Porsena and desiring his aid advised him not to let pass the new taken-up course of expelling Kings by their own subjects adding also Livius lib. 2. that unless Kings would maintain the right of Kings with as much vigour as subjects sought to advance their own liberty there would soon ensue an universal confusion and all rights sacred and prophane would be turned upsidedown and nothing would be indured in States and Common-wealths which was eminent above other whereby would also ensue a total subversion of Kingly government a thing both with God and man most beautiful and excellent Justin Thus Darius vanquished by Alexander the great and afterwards murdered by some of his own subjects when he was near his death he sent unto Alexander to revenge it inasmuch as it was against his honour to suffer subjects to give an example so pernicious Livius lib. 4. The Romans were so quick when sedition and civil war brake out amongst their neighbours of Ardea in league with them that they sent speedily their Embassadours to appease the fury who took off the heads of the Authors and confiscated their estates to the Treasury of Ardea Ovidius Proximis à tectis ignis defenditur agrè Paries cum proximus ardet tunc
Regis qui regnaturus est super eos 1 Sam. 8. vers 9. 11. And Samuel told the people the manner of the Kingdome eloculus est Samuel jus Regni 1 Sam c. 10. vers 25. CHAP. XIX Of a Civil war and of the effects thereof I shall now draw towards a Conclusion and in my passage shew the fruits of our adversaries wit and labour which have been rebellion civil war and servitude with some examples of their forerunners in other countries which they have imitated being they were more apt to imitate and magnify any example of rebellion then to take warning by their calamities or to consider the ruine of their own Countrey and the great scandal they have given unto the Christian name To begin with that which was nearest to us the late memorable example in France where they of the Reformed religion for their desence and liberty of conscience as they set it forth in their Declarations and Protestations made an Association and took up arms And soon after those of the Roman religion made the like Association about the year 1576. which they called the holy League Thuanus Both these produced the most dangerous rebellion and civil war in all respects that ever fell upon that Kingdome or any other Christian Kingdome for the people generally fell into such a phrensy that they deserced their Allegeance charity religion and reason Into these Associations many were at the first drawn unadvisedly through diverse and different perturbations in their minds designs and interests some upon false apprehensions and reports of the King and others cunningly raised Others through discontent want of livelyhood hope of raising their fortune hatred one of another or of the present government or of those of the greatest power therein and many out of preposterous and wild zeal And when repentance found entrance they could not find any way out of this Egyptian darkness The Cathoilck league was carried on with much subtilty and power by the cheif of the faction men of great power in Court and with the seduced and violent people Unto this league by ill counsel the King Henry the Third gave connivance and out of a desire to suppress some popular fears and jealousies of him and to shew himselfe really a devout son of the Church he soon declared himselfe a party And finding this Catholick league overmaster him he fell to no better shift then the confirming and ratifying of it by his authority But soon after that he perceived the design of the cheifest amongst them tended to the weakning and subordination of his authority by many of their actions and cheifly by their endeavour to get the power of the Militia into their own hands and all under the colour of defending the Catholick religion and the extirpation of Heresy For prevention thereof and preservation of himself from contempt into which he did run by joyning himselfe to the league he sought to throw out the devil by Belzebub and all that he could do could not untwist those inextricable difficulties in which it pleased God to leave him although he was a Prince indued with prudence and fortitude and as was said of him he might have proved an excellent King if he had not fallen into such times But he laboured and strugled under the contempt and hatred of his people either of them being sufficient to draw destruction upon Princes and the affection of his subjects was fastned upon the Duke of Guise a great Lord in respect of his alliance and followers exceeding popular ambitious active and of excellent parts Under this new league and association new officers were chosen soldiers and mony raised and war with the Protestants waged The League was acknowledged to be the head the King became an accessary and not the principal A preposterous and deformed government erected into the body a new head ingraffed and the old laid aside not cut off but made of no vigour and so was a horâ—id monster raised Then did it soon appear that those armes taken up for religion by the actions and the accidents ensuing were turned against the King who too late caused the Duke of Guise and the Cardinal his brother to be slain the which act drew on the Tragedy to the height for the year after he himselfe was murdered Peradventure it will not seem impertinent considering the likeness of our condition now in England Thuan. l. 100. to relate the words of our wise Author who saith Foederatorum factio primò libellum emisisse constat quo sumptorum armorum rationem reddebant ad levandÄ scilicèt Tributis plebem quò his inescamentis fascinatam ad suas partes pertraherent novarum rerum cupidos boni publici praetextu ad rebellionem impellerent Cum haec non successisset alia via Plebem aggressos religionis causam in horum animis praevalidam affinxisse quamvis nemo religionis observantior fuit quam Rex Henricus Tertius calumniose multa in illum commentata crant quasi communicatis cum sectaria peste consiliis evertendae religioni incumberet His successor Henry the Fourth a prudent magnanimous and victorious Prince passed through a multitude of difficulties and obtained many victories before he could get the quiet possession of his Crown occasioned by the errours and dissentions amongst those of his own party as much as by the power and practises of his adversaries the leaguers and their adherents And although he did see the death and destruction of many of them yet was he driven to agree upon hard conditions and to grant a pardon to them to the great discontent of many who had served with much courage and fidelity for his friends did see many malitious rebels in as good or better condition then themselves The Kings excuse was that he could not help it for he was inforced to expel one plague by another And as it is related in the History when the King had effected peace then did appear the incomprehensible effects of a Civil war driven to the height Religion pretended on all sides at first cast out at last or used but as a stalking-horse the honest Families the Cities and the people generally corrupted in manners and brought to poverty the Nobility most of them accustomed to rapine and licentiousness apt still to retain that course of life Unto those who were oppressed with debts or guilty of great crimes peace the inestimable blessing of God was a torment Others were ready upon all opportunities to take arms again to maintain their prodigality and wholly indisposed to use any honest trade or civil course of life and some to be revenged of their enemies or to repair the losses they received in the former Civil wars And as by the occasion of the Roman civil war impositions and taxes intolerable were laid although then excusable yet many of them alterwards remained in time of peace and so it hapned in France after their war ended with the English and their Civil
war which then followed or rather came together Comines But the Kings of France had this advantage by their wars especially by the Civil wars that they got better knowledge of the wealth and ability of their subjects and what burthens they could bear as well in times of peace as war of which before they were ignorant This evil bargain the people have gotten by the Ringleaders of their Rebellion And as by the long Carthaginian war the Romans changed much their Religion and lost their ancient discipline and laudible customes so did the French who by the means of their Civil wars have had the seeds of faction and sedition so scattered throughout the Kingdome that they are alwayes apt to spring up and as mens bodies which by long and lingring sickness being grown weake and feeble ever breed new diseases so do vices increase in a Kingdome wasted by war of long continuance which the Roman Censors finding ad mores hominum adverterunt Livius lib. castigandaque vitia quae velut diutinis morbis aegra corpora ex sese gignunt nata bello erant And the French History sheweth also that generally good discipline was not only lost Thuanus but religion also and sacriledge dayly committed and the number of Atheists and Libertines augmented Bodin well declareth the particular calamities which fell on men by this war and saith F pist ad lib. de Repub. cum bellorum civilium saevissima tempestate jactati fuissemus qua multi naufragium plures jacturam fecerunt plerique voraginibus immersi nonnulli in littus ejecti quidam ad scoputos alii aliò abrepti paucissimi incolumes evaserant But the Prophet best describeth a Civil war and the effects thereof Isaiah 19. I will set Egyptian against Egyptian every one shall sight against his brother the spirit of Egypt shall fail and I will destroy their counsel and mingle amongst them the spirit of errour all the commodities of the Countrey shall be destroyed and I will deliver the Egyptians into the hands of cruel Lords and mighty Kings shall rule over them * I will fill all the inhabitants of the land with drunkenness I will dash them one against another even the futhers and the sons together I will not have mercy but destroy them Jeremiah 13. verse 13.14 Polybius Machiavil lib. 3. C. 33. discur Before we have done with Civil war and the effects I will deliver some observations of the causes which reach and come home to our case The Roman Civil war saith Saint Austin did spring up ex connexione malarum causarum and so did the Civil wars in France and in other Kingdomes Many of these causes at the first are more easily prevented then foreseen The evils which proceed from internal and secret causes and corruptions are with most difficulty discerned and cured when they appear The Physick applyed either for prevention or the cure of the malady when it is grown to strength proveth oftentimes equally dangerous and therefore an excellent prudence and dexterity is necessary in the conduct of affairs of this nature where there is danger in precipitation although in using the likeliest means as well as there is in flackness and delay The causes also of rebellion are often secret suddain and different It is observed that some men have rebelled against their Prince for no cause that could be discerned and others who have received extraordinary favours as well as those who have received apparent injuries As too much plenty and prosperity doth often make men to themselves and to their Countrey the greatest enemies for seditions saith Plato do often arise through too much plenty as well as of much want Tantae calamitatis causa Flnus Livius cadem quae omnium nimia faelicitas quae furores civiles peperit Non miseriis sed licentiae tantum concitata turba otioque lascivire Plebem Deleta Carthagine tama de rebus prosperis orta mala magno scilicet terrore Reipublicae Romanae depulso dirupta concordia prius saevis cruentisque seditionibus deinde mox malarum connexione causarum bellis civilibus tantae strages ederentur tantus sanguis effunderetur Augustin de Civitate Dei lib. 1 C. 30. lib. 2. C. 18. lib. 3. C. 21. It was not poverty and want but pride abundance of all things and too much ease that caused the sin and destruction of Sodom Ezechiel 16.49 Tacitus Tacitus The Prophets do more often record the evils which fell on Gods people by plenty and prosperity then by want and adversity Plato being requested refused to give Lawes to a people swollen up with prosperity and pride Many men of great spirit and in great prosperity carrying their hopes above their merits have fallen into rebellion because they had not preferment before others or did see their enemies made their equals Iniquam iracundiam flagitiosa perfidia ulcisci and so of Darius malo publico verecundiam libidinem suam vindicavit publicis malis abuti ad occasionem privati odii Let such Hot-spurs consider that fortitude doth as much consist in suffering as in acting and although they pretend unto much magnanimity see how short they come as an ape differeth from a man of many Romans Carthaginians Grecians adorned with true magnanimity as Fabius Maximus Scipio Asdrubal and of latter time Gonsalvo called the great Captain and others men as famous for conquering themselves and their inordinate affections as for subduing their enemies who received many publick affronts from their superiors from their equals and from their Countrey and endured the smart of envy and detraction incident to men of most eminent virtue without seeking any revenge whereby the peace of their Countrey might be indangered although they wanted not power to make themselves as famous rebels as ever were any but they chose rather a voluntary banishment or confinement and retreat untill the predominant malignant humour was spent and the storm passed over so as many of them that thus prudently carried themselves survived their enemies and their malice and recovered all they had lost and obtained the highest places of honour and authority both incourt and camp Livius Augustinus Thus Camillus licet reus factus invidia obtrectatorum virtutis suae tamen ingratam liberavit patriam Valerius Maximus Appian Augustin de Civit Dei Whereas by the Civil war raised by Sylla and Marius striving to destroy each other non Reipublicae victoria quaerebatur sed praemium victoriae res erat publica utriusque partis defensores magis agerent amore vincendi quam aequum aut bonum quicquam cogitarent And although Sylla was reputed Captain of that party which had most reason and justice on their side for seeking to remove the corruptions in the Common-wealth yet was he tearmed Ingratus Sylla Seneca qui Patriam durioribus remediis quam pericula crant sanavit and the revenge he took of Marius and Cinna was with the
Whether by the lawes divine and humane forbidding the resistance of the soveraign authority justly established we are thereby restrained from all resistance by armes in defence of our goods estates just rights and liberties when the resistance cannot be made without hazard of other mens lives and of sedition and civil war I will not insist upon the decision thereof it is a work of long labour and not much pertinent I will add this as a most undoubted truth that a Civil war or rebellion doth most commonly produce more pernicious effects in one year then either the insufficiency or Tyranny of a Prince can in an age It was truly observed that the Roman State suffered more in those seven months of civil war raised by Sylla and Marius then in the fourteen years of that bloody war which Annibal waged in Italy at their own doores although their loss and damage was inestimable Brutus perswaded a wise man his friend to joyn with him in the Conspiracy against Julius Caesar his friend answered him that the government under a Tyrant was not so bad as a Civil war Our fanatick Polititians who teach men rebellion and to flatter and deceive the People and to effect their own designes do say that the supream power is originally in the People and habitually inherent in them and is derived from them so as they may chastise and change their Kings and assume again their power They do not consider how by these improbable assertions they weaken the bonds of all lawes humane and divine and cut the sinewes of all magistracy and government how they do incite the People to rebellion and preserve the seeds thereof alwayes in their heads and hearts how they in leaving Kings to stand or fall according to the changable humours of their own subjects who against common reason they make to be judges accusers witnesses and parties they leave Princes in the most miserable condition of all men And the People also ever desirous of innovations and prone to all licentiousness when the reins are but slackned they do expose to the fury of their provoked Soveraign by their rebellion and to the loss of their just rights and liberties and perhaps to intolerable servitude under the sword of a Conquerour The Rivers which by some violent accident have broken their bounds are destructive to themselves and to all round about them They run on still and scatter themselves and never come to good until they return to the right Channel and are inclosed and fensed again within their proper and just bounds assigned unto them by God and Nature I could not in this discourse insist upon the framing and deducing of arguments although they were necessary for confirmation of the truth and confutation of falshood neither in drawing my matter into an exact method my desire was to relate the truth and to rectify the judgments of the ignorant for Gods glory and the good of my Countrey and to convince those who are perverse not presuming to teach the wise and learned unto whose Judgments I do submit THE CONTENTS CHAP. I. INnovations in Government Publishing of false Newes and Prophesies Pretenses of Reformation Sects and Divisions in matters of Religion Quarrel against Episcopacy Page 3. CHAP II. Of the Presbyterian Government in the Church The practice in the Primitive times Touching the election of Pastors and Ministers in the Church and their maintenance by paiment of Tythes Pag. 11. CHAP. III. The inconveniences that happen by the alterations of Government in the Church and Common-wealth Of Ceremonies used in the Church-Service Of tender consciences Of the coercive power of the Magistrate in matters of Religion Pag. 16. CHAP. IV. Of the changes in Religion in England And by Luther And the toleration of divers Religions Pag. 31. CHAP. V. Of the use of Parliaments Of the danger that cometh by the abuse of Parliaments and the Factions that therein arise Pa. 35. CHAP. VI. The Right that Bishops have to sit in Parliament Pag. 40. CHAP. VII The necessity of having all the Members present in Parliament or the greater number of them and the danger of Consederations Associations Ingagements and other indirect practises contrary to the Rights of the King and the liberty of the Subject Pag. 49. CHAP. VIII Of Seditions and seditious Assemblics and the punishment thereof Of the power of the King in that which concerneth the Militia and the Arms of the Kingdome And of other Rights of the Crown Pag 57. CHAP. IX Of the Act of Parliament wherein the King was to pass away his power in the Militia And that other Act which was made for the continuation of the Parliament until both Houses should agree for the dissolving thereof Of fraud or force used towards the King or any other men for the obtaining of any Charters Patents or Grants Pag. 63. CHAP. X. The Caese of Subjects in Rebellion against their Soveraign and the errour of those that would draw more crimes within the compass of Treason then they ought Of Acts made and past under the power of a Vsurper Pag. 76. CHAP. XI Against any power pretended to depose Princes Of the Allegiance of the Subjects Of the oath of the King and of his Coronation Of strangers joyning in Arms with Subjects in Rebellion against their Soveraign Of oaths and ingagemeuts made to Tyrants and Vsurpers Pag. 85. CHAP. XII Of those who onely accept of Offices and Imployments under Tyrants and Vsurpers Pag. 100. CHAP. XIII Of the inseparable conjunction and relation between the King and his Subjects which cannot be dissolved by any law or custome That Kings cannot alienate their Kingdomes nor Subjects renounce their allegeance nor bar the next successor of the Crown Pag. 103. CHAP. XIV Of the Beginning Continuation of Kingly Government P. 111. CHAP. XV. Of Prescription as well upon Land as Sea And the Right and Jurisdiction that the King hath in the Sea over the Sea P. 116. CHAP. XVI Against the pretended Power of the People to Elect their Prince or to depose him Of the Norman conquest of England and of Leagues between Princes and of Aides given to Subjects in Rebellion against their Soveraign Pag. 121. CHAP. XVII Of the King and of his power in Parliament Pag. 136. CHAP. XVIII Of the Kings Prerogative Pag 141. CHAP. XIX Of a Civil War and of the effects thereof Pag. 146. CHAP. XX. No pretences whatsoever can be just ground of a Civil war or Rebellion Pag. 153. FINIS