A vindication of monarchy and the government long established in the Church and Kingdome of England against the pernicious assertions and tumultuous practices of the innovators during the last Parliament in the reign of Charles the I / written by Sir Robert Poyntz, Knight of the Bath.

A VINDICATION OF MONARCHY AND The Government long established in the Church and Kingdom of England, &c.

CHAP. I. Innovations in Government; Publishing of false Newes, and Prophesies; Pretenses of Reformation; Sects and Divisions in matters of Religion; Quarrel against Epis∣copacy.

WE find by daily experience that those Rivers which run from the purest Foun∣tains, the farther they run, the more corruption they gather: and so is it with the Church and Common-wealth, which have had their institutions, discipline and lawes drawn from the pure fountains of piety, prudence and equity; yet

by the course of time they are carried through the corrupti∣on in manners, defects in government, and in the execution of good Lawes, into a stream of abuses, contempt and confu∣sion. But when the corruptions are such as are not incu∣rable, but removable, we find it much better to content our selves with a fair, orderly and prudent reformation, or a tem∣porary toleration, then by adventuring rashly upon the cure, make the disease worse, or change it into as bad, through the change of that which hath long continued, and may very fitly be retained, and easily be purged from the corruptions and abuses which are adherent. For by Innovations, especially sudden, the minds of men are disquieted, fuel is brought unto fiery and turbulent spirits, and the peace of the Church and Common-wealth indangered, if not destroyed, which by the Apostolical precept and practise we ought care∣fully to preserve. The rule which Ʋlpian giveth us is worth remembrance, In rebus novis constituendis evidens esse debeat utilitas, ut ab eo jure quod diu aequum fuit recedatur. It is an evident sign of a distemperature in the brain, or of great levity, when we rashly rush upon the change of ancient in∣stitutions and customes, if there can be found no great in∣convenience in the use of them. The desire of change is rest∣less, and like superstition taking hold in the minds of men, when it hath broken the bounds of piety. Alterations are dangerous, although they are specious, and have some rea∣son to justifie them; and oftentimes those are the most dan∣gerous, which are most specious, especially if they are driven on tumultuously, or by faction. When the people begin to be divided in Religion, or to shew themselves discontented with the present government, then do the ambitious and factious spirits (who fish best in troubled waters) lay in their hooks and make use of the season and opportunity. And it hath been often observed, that those who have had de∣signs upon the State, or to become a head of a Faction, to raise sedition, or to possesse or alter the Government, have ever pre∣tended Religion or the Publick good, or the reformation of abuses, and the removing of evil Counsellors. Pretences of great efficacy in a discontented and factious state, abound∣ing with men presumptuous, self-willed, and despisers of Go∣vernment,

as the Apostle saith;* 1.1 and prone to cast off all affe∣ction and fear of their Soveraign. I need not to insist upon examples, they are frequent, I will only relate one of our own.* 1.2 Vnder this pretence of evil Government, and remo∣ving of evil Counsellors, and with great protestations of sin∣cerity and love to his Countrey, did Richard Duke of York gain the affections of the people from their innocent King Henry the Sixth, who stood in his way to the Crown, so as the Duke of Somerset for his faithful adhering unto that King Henry his Nephew, and for crossing the aspiring of the Duke of York, had by great cunning contrivance the hatred of the inconstant and seduced people stirred up against him, under that general and indefinite notion of an evil Counsel∣lor, and an enemy of the Common-wealth, to the ruine of him∣self first, and then of his King. Upon this and the like exam∣ples, it seemeth, that the Statute in the third year of Henry the seventh did reflect; for the words are, that by quarrels made to such as have been in great Authority, Office, and of Counsel with the King of this Realm, hath ensued the destru∣ction of the Kings, and the ruine of the Realm: So as it appea∣red evidently, when the compassing of the death of such true subjects was had, the destruction of the Prince was imagined thereby.* 1.3 We find for the furtherance of such designs, two pestiferous means often used by factious men and Incendiaries to infatuate the Peo∣ple, and to raise them on their side; the one is the devising and publishing of faise tales and newes, as did Shimei by bruiting infamous Speeches or Libels against King David, calling him the man of bloud.* 1.4 The Histories in all times, and the Lawes against it in all States, shew the hurt it bringeth to the Common-wealth.* 1.5 The Ven••tians put to death a man who divulged false newes, which much disquieted the City. But those who first related the true newes of the defeat given to the King of France by the Sara∣cens in the East,* 1.6 were condemned in France to be hanged. It was an ancient manner among the Heathen Princes,* 1.7 that if any novelty happened, it should be first declared to him who held

the Scepter. The Statute made in the 12. of Rich. the 2. saith,

That by this means of newes, discord hath often risen be∣tween the King and the People, and slander within the Realm, whereof quick destruction and subversion of the Realm may ensue.

Caesar saith in his Commentaries, Fal∣sis rumoribus homines terreri, & ad facinus impelli, & de sum∣mis rebus consilium capere cognitum est:* 1.8 A back-biting tongue hath pulled down strong Cities, and overthrown the houses of great men. The tongue setteth on fire the whole course of na∣ture, and it is set on fire of hell, saith the Apostle. It is cal∣led a sharp sword, by the Psalmist, gladius acutus; and in Job, flagellum linguae.

The other means used by Incendiaries, is the publishing of Prophesies, or making use of them to amuse the people, and keep them in the expectation of a change. New Religions were brought into Rome by certain Books of Prophesies, which were publickly burned. It was a capital Crime by the Roman Law in him,* 1.9 Qui aliquid fecerit, quo leves hominum mentes su∣perstitione Numinis terrerentur: and so was it also in them,† 1.10 Qui divinandi artem exercebant, aut Vaticinii libros habe∣bant. And thus by the Canon Law, and also by Mahomets Law, Magiam & Cabalisticas artes lege Mahometica vetitas esse. The Magicians and Southsayers, and those who profess the knowledge of things to come are more dangerous to a City, saith St. Hierom, then fire, especially those who consult of the state of the Common-wealth, or of the life and death of the Prince;* 1.11 Qui de salute Principis & summa Reipublicae Mathematicos consuluit, he was punished by death; And by that Law the crime was equal in both, talia prohibita tam discere quàm docere, in those who did seek to learn, as well as the Ma∣sters of that Art.† 1.12 The Canon Law made all those infamous, Qui ad sortilegos & Divinos concurrunt infames sunt, nec ac∣cusatores, nec testes esse possunt. The divine Law saith, there shall not be found amongst you that useth Divination, or is a Wi∣zard; they shall be put to death: Seek not after Wizards to be defiled by them.* 1.13 Mathematicorum fallaces divinationes & im∣pia diliramenta, saith St Austin. Who so are desirous to search into these vain and impious Prophesies, and to enquire of things to come, the Devil is ready to answer their curiosity

with strong delusions;* 1.14 quae turbant animos & ad novas aut magnas spes impellunt. Nunquam curiositas & cupiditas con∣juncta cum avaritia & superstitione cognoscendi res futuras,* 1.15 neque Gentilibus, neque iis qui Christiani perhiberi voluerunt, impunis vel innoxia fuit. The raisers of a dangerous sedition in York-shire,* 1.16 in the reign of Edward the sixth, took their rise and encouragement from a dark and deceivable Prophesie, and understood that to be the time to accomplish that Prophesie, which did fortel the time should come, when there should be no King, and that the Nobility and Gentry should be destroy∣ed, and the Realm ruled by the Commons holding a Parlia∣ment in commotion.* 1.17 The Duke of Savoy not to condescend unto equal conditions of Peace with Henry the fourth of France, was drawn by a Prophesie, that at such a time there should be no King in France; which had something of truth, for the King of France was that year in Savoy, and in the pursuit of his Conquest thereof. And yet notwithstanding, such is the de∣sire of men to know things to come, that these Astrologers and Southsayers gain more credit by foretelling one truth, then they do discredit by ten falsities; whereas others, if they lye in one thing, are scarce ever believed in any truth they relate.

Religion and reformation, as was said before, have ever been pretended by those who have had pernicious designs; and factious and ambitious men have often taken hold of the dissentions concerning religion, to work the people to a com∣pliance with them: These men convert Religion under false and specious pretences into faction; or use religion like a stalking horse, as did Jerobeam and Mahomet, Qui ner∣vum potentiae suae in novae Religionis formulâ ad affectus hominum inflexâ ponebant.* 1.18 The changes in religion have often wrought great changes in the minds and manners of men: where∣upon the saying is grounded A new reli∣gion, and a new Prince or government. The Popes Nuncio hearing Francis the first of France, use sharp speeches against the Pope, and saying he would withdraw his Subjects obedience

from the Sea of Rome in things of Ecclesiastical Discipline, the Nuncio replied, that his Majesty would be a loser thereby as much as the Pope, for a new Religion, if it took the People in the head, would draw them on to the desire of changing their King, or Government. Unity in Religion being the chiefest pillar that upholdeth the joynt obedience of the Sub∣jects to their Soveraign, and to the Lawes of their Countrey. ••or where they are not united in their Religion, they are not united in their Obedience to their Soveraign, neither in their af∣fections to their fellow subjects, but are ever apt to fall into seditions; and of this there are many examples in this latter age. Not to come nearer unto us, I will rather choose to re∣late that of the Moors in Spain, who notwithstanding all the endeavours of the Emperour Charles the fifth, and his Succes∣sors, could never be made good Subjects or Christians: they only pretended a desire of liberty of Conscience, which they thought they could never obtain, unless they had a King and Lawes according to their will,* 1.19 whereupon they entred into a most dangerous conspiracy, and took up arms. The Proverb was true, never of a good Moore, a good Christian. Their King said of them, that they would never be faithful to God, who would never be faithful to their King.* 1.20 It was truly observed of such inconstant People, Meliùs vatibus suis quam Regibus suis parent, a new Apostle is more precious then King or Lawes: How often,* 1.21 saith Lipsius, of old and of late times, to the great peril of Princes and Common-wealths, Pravae aut novae reli∣gionis titulo populum concitatum fuisse, unus aliquis concionator sanctimoniae famâ & telo armatus, & eloquentiâ aliquâ orna∣tus, quid non patrat? Of such men the Prophets often gave warning, who flatter the people, and prophesie lies in Gods name. For this cause of Religion men become wolves to each other: in this fury they abandon all respects civil and natural: The brother delivereth up the brother,* 1.22 and the father the childe to death. This made certain Jewes bind themselves under a curse,* 1.23 that they would never eat nor drink until they had killed St. Paul. Experience hath proved that there is no cruelty comparable to theirs, who have taken on them the name of the Church, neither any so dangerous evil, as that which carrieth the face and pretence of Religion. King James describeth

such Puritans as he had long trial of in Scotland,* 1.24 and saith,

they are the very Pests of the Church and Common-wealth, whom no deserts can oblige, neither promises or oathes binde, breathing nothing but seditions and calumnies; aspiring with∣out measure, railing without reason, making their own ima∣ginations without warrant of the Word of God, the rule of their actions.

* 1.25 St. Bernard doth make mention of the like men in his time, Qui nec rationibus convincuntur, quia non intelligunt, nec autoritatibus corriguntur, quia non recipiunt, nec slectuntur suasionibus quia subversi sunt. Of the like men by the unsearchable Judgment of God, our King his Son had the like experience, but with much worse success. It were a work of time, and a labour to little purpose, to relate the several Sects which now do swarm; for sometimes their doctrine doth differ from their practise, and some of their er∣rors are opposite to others, although they spring from the same root. And it is meet that errors should be divided, into sundry serpentine heads, one hissing against another: howsoe∣ver they are tyed together by the tails like Samson's Foxes, to set fire both in the Church and Common-wealth.* 1.26 In cun∣ctis assertionibus eorum licet multae sunt, nec novum quid aut inauditum audisse me recolo, sed quod tritum est & diu ven∣tilatum inter antiquos haereticos, à nostris autem contritum & eventilatum. The Ecclesiastical Histories do mention such Pests to have been ••••ciently in the Church, and these of our Age seem to be of their seed, and of the same leven and mould. Eusebius saith, that whilest new Heresies sprang up,* 1.27 creeping one upon another, the latter taking place, the former did seem to vanish, or subdivide into many Sects, changing this way, or that way until they were destroyed, or grown obsolete and out of request. For the Church being once divided, they rested not upon any one Schism or Sect,* 1.28 but they fell out and severed themselves upon slight and trivial matters. People di∣vided in religion seldome agree in matters secular: neither can religion be safe, when the Common-wealth is rent by civil discord; both suffer together, in, by and through each other.* 1.29 When the Common-wealth hath been tossed with dissentions, the Church hath not been quiet, both at one time out of square, or the ones calamity ensued immediately after

the others. And sometime when the Church began to vary in religion immediately followed rebellion against the Civil Magistrate. But we can find none, or very few of those ma∣ny ancient Hereticks, Sectaries, or Schismaticks quarrel with Episcopacy, but all these of our time jump together in no one point so near as they do against Episcopacy. Those Christians who are now dispersed in divers parts of Africa and Asia, although they are of different Sects, do not admit of any other form in Ecclesiastical Government but Episcopal; in this they agree. The ancient Hereticks and Schismaticks, who were as subtle men as these new, did not quarrel at the Function, so as they might have had Bishops of their own side, or have been Bishops themselves: Their envy towards others, or their desire of being preferred before others made many become pa∣trons of Heresies, to the great prejudice of the Church, and the peace thereof. Concerning the opposition against Episco∣pacy and Ecclesiastical Discipline (wherein full defence hath been made by divers learned and pious men) I shall not say much, although the matter deserveth to be more fully and ex∣actly handled. Much may be said against the tyranny and su∣perstition under the Papacy, and against other abuses, and per∣sonal faults, yet may we not thereby infer a necessity of the change of the Episcopal order and office into Presbytery, which is subject to as many and great abuses, as they finde who live under it. It is not without just cause that those men who would be reputed learned and pious should receive blame, for their so eager and bitter contesting against the superiority of one man in Church Government, even to the rending of the Church in pieces; when they do not define or declare by the Scriptures, notwithstanding all their labour what is of necessary and perpetual obligation in this controversie. And of all those things which they have urged in their own behalf as greatly ne∣cessary for Church Government, there is no one which they have proved to be contained in Scripture, and injoyned for perpetuity: but in stead of this proof, they obtrude conjectural and slight interpretations, uncertain probabilities, and as weak inferences in opposition of the primitive and continual judge∣ment and practise of the Church. Until the blessed Apostles less the world, there could be but little shew of superiority in

any but in them, and in those whom the Apostles constitu∣ted Superiours, as Timothy and Titus:* 1.30 and immediately af∣ter them there was shew enough in the Churches planted by them, if we will give credit to all the stories of Antiquity, and value the practice of the Primitive Church, when the Scripture was best understood, and godlinesse did most a∣bound. Our Saviour did approve of superiority in the Church, so as it were without pride and tyranny, by his saying,* 1.31 He that is greatest amongst you, let him be as the younger, and he that is cheise, as he that d••th serve. And that Saint James was established the first Bishop of Jerusalem cannot be gain∣said. Saint Jerome whom the Presbytery account most favou∣rable to their cause of all the Antients, and most against the granting Episcopacy to be of Divine right, he saith, Et A∣lexandriae à Marco Evangelista usque ad Heraclam & Dio∣nysium Episcopos, Presbyteri semper unum ex se electum in excelsiori gradu collocatum Episcopum nominabant. Olim idem erat Episcopus & Presbyter, sed sciunt Presbyteri ex Eccle∣siae consuetudine,* 1.32 & in toto orbe decretum esse ut unus de Pres∣byteris electus superponeretur caeteris, ad quem omnis Ecclesiae cura pertineret; & in schismatis remedium factum est, ut schis∣matum semina tollerentur; ne unusquisque ad se trahens Chri∣sti Ecclesiam rumperet. The time nearest the Apostles ought to be herein our best Directory and interpreter: Observan∣tia proxima valde interpretativa, & dat fidem aut minuit.

The Apostolical and Primitive practice rather then the late discipline and example of some reformed Churches, who as much of necessity as of election are fallen for the most of them unto a form of Presbyterian discipline, of which they find no use nor Character in the Primitive time. And therefore they shew little candor and sincerity, who so per∣emptorily defend this Presbyterian discipline, and with de∣traction and detestation of Episcopal Government, seeing it hath been fully proved by Learned men, that the of∣fice and power of a Bishop, made ever a great difference betwixt him and a Presbyter. Neither can they conclude any thing for their advantage by the promiscuous use of those two names at the first, at which they catch. It

cannot be called one and the self same order, where the offices are distinct: Diversi tituli praebent regulariter significationem diversi juris.* 1.33 If the offices and things are distinct, it avail∣eth little the insisting upon words and names promiscuously used. There is not one and the same imposition of hands; and shall not it be a distinct order in it self, from whence ordination and all other orders do and ever did proceed untill of late time. Neither was the office and Power of a Bi∣shop lessened by the assistance and counsel of certain Presbyters, called Senatus Ecclesiae, but rather strengthened and supported by that antient and laudable course. There doth not appear in Scripture any com∣mission given to any assembly of Presbyters by our Saviour to govern the Church without a Bishop or Superiour in whom was the power of Ordination and Imposition of hands; al∣though by the antient Canons,* 1.34 Episcopus sine consilio Clerico∣rum suorum Clericos non ordinet, it a ut Civium conniventiam, & testimonium quaerat. Neither is there any example in Scri∣pture of any delegation of power of Censures or Government derived from the Apostles to any Colledge or Assembly of meer Presbyters. If these men will peruse the Canons of the four first general Councils, which Calvin saith,* 1.35 libenter amplectimur & reveremur, they shall find enough to justifie the office and superiority of Bishops, and to give them satisfaction of the necessity of that Function, if wilfull ignorance and the spirit of delusion and contention doth not still prevail. They cannot shew that ever any Church upon the face of the earth hath ever been ordered by their discipline, un∣till this later age, or hath not ever been under Episcopal go∣vernment since the Apostles time.* 1.36 Nei∣ther can they by their doctrine and man∣ners, or by any other means induce those who are in no respect behind them in learn∣ing, prudence and piety, to believe that

they and not others have had the clearer lights, and more di∣vine inspirations. Saint Paul meeting with such men, saith un∣to them,* 1.37 What came the word of God out from you, or came it onely unto you? Take heed that the light which is in thee be not darkness.

CHAP. II. Of the Presbyterian Government in the Church; The pra∣ctice in the Primitive times; Touching the election of Pastors and Ministers in the Church, and their mainte∣nance by paiment of Tythes

AS they would have it granted that their Presbyterian Go∣vernment is onely of Divine right, so would they also have it granted, that nothing is to be used in Church Govern∣ment, but that which hath direct and express warrant in Scri∣pture, and that all discipline and order in the Church, ought to be reduced to the primary purity of the Church, which is not possible in many things, neither necessary or expedient in these corrupt times, and latter age of the world. An exact form for all Church government and discipline is not to be found expressed in the Scripture. For one cause of so many general Councils in the first times, and shortly after, was to make Canons and Constitutions for the external Government of the Church, which had not needed, if such a perfect Plat∣form had been delivered in the Scripture, as these men do ima∣gine. We find of necessity, Aliter in constitutà Ecclesià, ali∣ter in constituendà. Some things are sit for the present, which for the times past were not convenient, according to the old say∣ing, Nunc aliud tempus, alii pro tempore mores. Cicero had just cause to be displeased with Cato, who living in a corrupt State, sought to have all things carried as though he had lived in Pla∣to's Common wealth. New lawes may be made, but not new men, neither the present manners of men altered, or reduced to the old. It was wisely said in the Imperial Law, That the

looking back too curiously into the times of old, and seeking to reduce the present to that which was past, erat confusionis po∣tius quam legislationis. Laws look not back, they may well be made to look forward, and for the future, but they must of necessity be made fit for the present time, which man cannot over-rule.* 1.38 Legum opportunitates & medelas pro temporum mori∣bus, & pro rerum publicarum generibus, & pro utilitate prae∣sentium mutari atque flecti. The ancient good discipline may well serve for our instruction, which neither may, nor can all serve for our imitation. Respect is to be had unto the times of old, and we are instructed by Gods word to ask of the dayes of old, to remember the dayes past, to ask for the old paths, but not injoyned to follow them in all things,* 1.39 and in all times. We finde in the Scripture things of Apostolical institution, changeable, and not appointed for perpetuity. Many offices and ministeries in the Church at first were soone changed, as the electing of widows for some services; the manner of institu∣ting and ordering of Pastors and Elders (not lay Elders) and for the raising their maintenace, which in the primitive times when the Church was in the Infancy, and under Persecution, be∣fore Tythes were established, did rise from the free Benevolence of men, who were of one heart and one soul, and sold their goods,* 1.40 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 Christia∣norum conventum suisse,* 1.41 quales monachi esse imitentur et cupi∣ant esse, ut nihil cujusquam proprium sit, nullus inter eos dives, nullus pauper: nec confundebant Christiani dominia; bona e∣gentibus 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 a∣way 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 mi∣nisters? The people in the primitive times, if they had a great po∣wer 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 electi∣ons,

seeing the people are over numerous and humorous, di∣versly 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 pre∣tend. 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.* 1.42 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 Peo∣ples 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:* 1.43 Ita ut omnes audiantur qui ordinationis impediendae causa objicere quid∣piam voluerunt, as in the ancient Canons. But there are vari∣eties of judgements in divers Canons concerning the election of Pastors, as whether it must be in the presence of many stan∣ders by, or at the request of the people, or with their testi∣mony, 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.* 1.44 This popular concurrence in these electi∣ons 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 dis∣burthened the People by being thus bene∣ficial unto their Churches and Pastors; those Lords for their bounty, were called and constituted Pa∣trons of those Churches, and had the right of Presentation of Clerks to them and their heirs in those Churches. Qui Eccle∣siam aedificat,* 1.45 aut de suo praebet Clericis annonas, jus habet in∣stituendi & substituendi Clericos, dummodo eos prius commenda∣verit Episcopo, qui eos admittere debe••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 ••i,* 1.46 qui fun∣davit, vel collapsam Ecclesiam restituit, vel dotavit, vel redi∣tum certum largitus fuerit. This right of Patronage and pre∣sentation to Benefices the Common Law and Statutes of Eng∣land do grant, and the lawes and customes of other King∣domes, 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 di∣verse 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 covetous∣ness, some through ignorance, not considering that Tithes have been out of much prudence and equity anciently and univer∣sally dedicated to the necessary service of God and his Church, or rather still continued since the Leviticall Priesthood was abo∣lished, and they will ever appear upon due consideration had of all times and things, to be the most necessary, na∣tural 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 re∣stored 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;* 1.47 we find how he was punished for his sacriledge. Quod divini juris est, nullius est in bonis: Res religioni destinatas, & jam reli∣gionis effectas, qui scienter emere & distrahere non dubit averint, tamet si jure venditio non subsistit, laesae tamen religionis incide∣runt in crimen. Sunt tamen aliquae res Ecclesiasticae, quae non deputantur ad Altaris ministerium, nec ad cultus divini celebra∣tionem, ut domus, agri, prata & similia; quae sunt bona tem∣poralia Ecclesiae quae possunt certis casibus alienari: licet lege im∣periali indistinctè dicitur, Patrimonium Ecclesiae, sicut ipsam sa∣crosanctam Ecclesiam, illaesum & intactum custodiri. If, they will have a stipend in money to take place in lieu of Tithes, when the thing it self may as well be had, and with more rea∣son be retained, what reason have we then to look after the Analogy and substituting of a new thing of a different nature? The Apostle saith, there was a disannulling of the Command∣ment for the weakness and unprofitableness thereof: but this old Law of Tithes cannot be in the rank of the weak & unprofit∣able Ceremonial Lawes, which were a shadow of things to come. Neither can they prove that Tithes were only appropri∣ated to the Levitical Prieithood; God did not found them in that incorporation, but transferred his own right to that order of Priesthood, which order ceasing it cannot therefore be inferred that the same right ceased, and did not descend to the Evangeli∣cal ministry. Before the Law given Abraham paid, and Jacob vowed the Tenth part. And the Gentiles who lived without the Divine positive law, did repute the Tenth part as a due by a re∣ligious Right, as profane Authors do testifie. God did call the detaining of Tithes the robbing of him, and for punishment thereof the Heavens were shut up from giving raine,* 1.48 and the palmer-worm and the grashopper sent to devour the fruits of the earth. God is no less careful of the Ministers of the Gospel of his Son, our Saviour, then he was of the Levitical Priesthood: the Ministery of the Gospel being more excellent in nature, more eminent in dignity, more profitable in use; and therefore we ought also to account of our Pastors as the Ministers of Christ, and stewards of the misteries of God.* 1.49

CHAP. III. The inconveniences that happen by the alterations of Go∣vernment, in the Church and Common-wealth; Of Ce∣remonies used in the Church-Service; Of tender consci∣ences; Of the coercive power of the Magistrate in mat∣ters of Religion.

ALthough it be true that all the Divine Laws extend not their power of binding in all times, and to all persons; and that positive Laws Ecclesiastical must be fitted to the times and manners of men, as hath been said before, yet great con∣sideration ought to be taken, of the difference and variations of times, and of other circumstances, reasons, and inconveni∣ences, before any new Laws, Orders or Discipline either in the Church or Common-wealth be imposed, or the old and in∣veterate Lawes and customes repealed and abrogated. Aristo∣tle saith, That to give a sound judgement of a Law, is one of the weightiest things that a man can take upon him; for we ought not onely to look simply upon the nature and qua∣lity of the things in themselves, and in abstract, but how they stand in relation, and connexion with other matters and things of long establishment, and of great importance, lest by the removal of that against which our fancy doth run, we indan∣ger the shaking, if not the subverting of it, and other things, which the tryal of time hath found very profitable and necessa∣ry. Tales leges quas ne usus quidem longo tempore (qui unus est le∣gum

corrector) experiendo argueret:* 1.50 tales leges tollendo, caeteras leges infirmari: And so the People learn to under value all Laws of what kind soever, and to repute them of no weight and effi∣cacy, longer then they are supported by the hand of Authority.* 1.51 Some things which are not unlawful or evil in themselves, are oftentimes well prohibi∣ted, when there is just cause of fear, lest a way be opened for doing of things unlawful and hurtful: So doth it often fall out, that some things unnecessary in themselves, as to the purpose and end whereunto they were at first applyed, are very prudently still re∣tained, in respect of some new accidents arising, or by reason of the coherence they have with some other thing of greater use and necessity,* 1.52 lest the taking away of the one should destroy the others, and bring disorder and confusion in the Com∣mon-wealth. It was well said by a man of great Judgement; that he could not approve of the utter abolishing of certain anuent customes, although grosly abused, seeing the incon∣ventences that thereby would ensue; but rather that some re∣dress or qualification were sought by the prudence of those in Authority.* 1.53 Sapi••ns potius apt at quam mutat. Saint Augustine saith, of some evils in the Romane State which were long set∣led, tam vetustam iniquitatem convellere, periculosum erat: for it fareth better with that Common-wealth, which doth observe and keep their antient Laws and customes, although they are not of the best,* 1.54 then with those, who have the best, and are inconstant in the use and observation of them. Julius Caesar said of Cato his mortal enemy, that he shewed himself both a good man, and a good Citizen, by opposing the changes of the State and Government:* 1.55 mutationes in Republica caedes & hostilia portendunt, especially if the changes and alterations are driven on by violent and pertinacious Spirits, who if they ob∣tain their desire in having any antient Laws and customes chan∣ged, their Countrey shall find the smart, as did the Roman State,* 1.56 when the Senate yielded thereunto, quia non provide∣runt, ad quod tenderet pertinax studium eorum, & quò se usque effusura esset victrix legum audacia:* 1.57 tentari patientiam, & ten∣tatam

contemni, ut si jugum acceperint, obnoxios premat. As some men ask unreasonable things, but to draw others to yield unto that which is reasonable, so others by granting un∣to some men more then reason doth require, do imbol∣den them to press more unjust and insolent demands. The alterations in the State and Government procured by those who have the supream authority, if they are not discreetly handled, and effected by degrees in an orderly course, and car∣ried still on with the ease and contentment of the people, they will in short time be disquieted, and either turne back into the old way like sheep driven, or violently run head-long into some new.* 1.58 Jus quod invaluit, quod viget, quod inharet animis homi∣num, non semel sed pedetentim tollendum esse, quoniam Populus non facile dediscit aut deutitur quod insnevit. And therefore those Innovators who try experiments upon a State, and upon the peoples disaffection to the present government, and there∣upon lay the cheif foundation of their designs, without some other stronger assurance, have often failed, and have found themselves and others with them utterly ruined, through the suddain and violent ebbing and flowing of the Peoples passions and affections. The fear of this caused the Roman State, when they had expulsed their King Tarquin, not to rest upon the Peoples present violent hatred of the Regal Government, and their oath freely taken, never to admit Monarchy, but for the future security of their usurped Government, the Senate gave the People the spoil of all the Kings goods, and of theirs who adhered unto him, ne quis expers sceleris esset, saith Livie, that there might not be any who had not a hand in that foul fact: and thus to set farther all hope of reconciliation with their King: yet unto this the Senate added (as the most effectual means to assure the Peoples affection) their continual carefor provision of corn, victuals and all necessaries at cheap rates, together with freeing the Commons from heavy taxes and burthens, and laying them upon men of most wealth and ability, and upon Commo∣dities superstuous and least necessary. For the State being not come unto full growth and maturity, might by many accidents have been destroyed,* 1.59 had it not been fostered and trained up por tranquillam moderationem Imperii, et per multa blandimenta Plebi por id tempus ab Senatu data, by a gratious Goverment,

and by entertaning the Commons at that time with courtesies and favours. By which smooth dealing and indulgence of the Senate and Nobles, the City was afterwards kept in liking of their new Government, notwithstanding the strong opposition of the Tarquines and their party, so as the meanest as well as the highest who were most ingaged and interessed, continued altogether in the hatred of Monarchical Government, and in the love of the new. The alterations in the Church and the government thereof how pernicious they are, we find, especially being wrought by faction, violence and tumults, Vim Patriae afferri, as Cicero saith: These cause great distractions in the minds of men, raise daily cross and counterspirits, occasion the Religion professed and established to be traduced, and do open an entrance to Atheism, and to the weakning of all those fa∣cred bonds, which preserve all Laws and obligations in humane society: For then oaths are not regarded by those men, nor the consciences of any other men, in their pressing these Alte∣rations in the Church, neither the conscience of their Sove∣raign, nor his solemn oath at his Coronation, which oath is a supporter, and an Epitome of out Magna Charta, the confirma∣tion of all our liberties. By which oath the King is obliged to save and keep inviolable all the rights and liberties of his People, and also those of the Church. This oath they inforce the King to break in as much as concerneth the Church and the rights thereof, and leave the People to the challenge of their rights and liberties by and from the vertue of this broken oath. In both Kingdoms of England and Scotland he took an oath,* 1.60 de conservandà in statu suo illo colendi Dei formulà quae publicè re∣cepta & utriusque gentis legibus stabilita esset. Their conscien∣ces some of them would seem much to regard this, in which re∣spect, they pretend, that they cannot admit the Common-Prayer Book, neither those Ceremonies in the Church which are by Law established: and yet most of them although they cannot swallow a ceremony, they can devour that which is holy, and account it no snare,* 1.61 even as easily as they can digest their wilful breach and violation of the oaths of Supremacy and Allegiance, in ordine ad spiritualia, for the advancement of the holy cause, and the Kingdome of Christ. But Calvin giveth them a rule for their consciences concerning Church

Government, and concurreth with Melanchthon, men in great esteem when their Presbytery was in the infancy, viz. aliquando aliquod onus & aliquam servitutem tolerandam esse, si non sit iniquitatis sed pressurae, lest by being over indul∣gent to our weak and erroneous consciences, we give an offence to others, violate the Peace of the Church, and shew our con∣tempt of Authority, and of that which hath been established with prudence and piety. We ought well to consider what things are of Divine right and precept, and what are properly, positive and Ecclesiastical constitutions; what things are of Divine Right according to the matter and substance, and are of humane institution according to their forms prescribed: All are of weight, although not equally: What ought to be perpetual in the Church, and what is changeable by positive Laws; What is Moral, what is Ceremonial, lest the defects of our judgement cause us to abound in our own sense, and lead us into an erroneous or perplexed conscience. Some things are of Divine institution and right, yet do not alwayes belong unto faith;* 1.62 they belong to the agenda or practise of the Church, to the credenda or points of faith, they may not properly be re∣ferred: Somewhat may be wanting that is of Divine right, at least in the external Government of a Church, and yet salva∣tion may be had there, and that Church may stand without it. Moreover, although the constitutions of men, are not of force in themselves to bind the conscience, yet do men sin in wilfully disobeying such Laws and constitutions, as are by Lawful Authority established, when they can shew no other cause for their disobedience, but their conscience, neither bring any warrant out of Gods Word. In the supposed purest reformed Chuches, there are some Cere∣monies enjoyned,* 1.63 and are not without punishment contemned, and some must be if we will serve God in the beauty of holiness. Calvin alloweth such Ceremonies as tend to the perspicuity of doctrine, as being prositable allusions and iliustrations, and having divine significations: such Ceremonies, saith he, as are paucae numero, observatione faciles, significatione praestantissimae. In the ministry of the Church there ever have been some Ceremonies ordained for order and decency, and also for signification: Ceremonies tending to edification sig∣nisie,

moral duties and works are signified. Such rights and Ceremonies as are not repugnant to Gods Word, neither apt to lead men into superstition and to will-worship, but serving to edification and decent service, so as the Church be not bur∣thened with the multitude of them, nor the essence of Religi∣on placed in them, although some of them have been in part u∣sed by Pagans or Papists, lest upon such restraint we press too much servitude upon the Church. We cannot take in too ma∣ny helps for our performance of Religious duties, for the exal∣tation of Gods glory and goodness, for the more decency in his service, for the manifestation of our duty of thankfulness, and for the furtherance of our devotion, so as Superstition and Will-worship be restrained. And in all this if men should be left to their own wills, the Church of God would alwayes be perplexed and grieved, and the peace thereof dislurbed with infinite Scandals both given and taken. A great evil it were that order and decency should break the Communion of Saints, which hath been so piously instituted for the preser∣vation thereof, and the increase of devotion, and the mani∣festation of our thankfulness to God for all his benefits. They ought to find other causes for their dislike of Ceremonies, then because some of them were used in time of Popery. The Reformed Churches retain some things used in the Romane Church. And they use the Churches, which not onely the Papists enjoyed, but some Churches which had been Temples of the Pagan gods. If they quarrel with our Ceremonies, be∣cause they were used in the Roman Church, without any other reason, they are like those who hate men for other mens sake, or because of the company wherein they find them. They will not consider that those things which have been superstitiously abused, may be made useful for the ser∣vice of God,* 1.64 who did command the wood of the Grove de∣dicated to Baal, to serve for the use of his Sacrifice. And Jericho an accursed City, all in it was to be destroyed by fire,* 1.65 but the silver and gold, the vessels of brass and iron were put into the House of God. Constantine and other Christian Em∣perours abolished Paganism, and made it death to worship their gods, yet they preserved their Temples and other things,* 1.66 as appeareth by the Imperial Law: Sacnisicia templorum prohi∣bemus;

publicorum operum ornamenta servari jubemus, & fe∣stos conventus civium, communemque omnium laetitiam non pa∣timur submoveri, unde absque ullo sacrificio & superstitione damnabili exhiberi Populorum voluptates, secundum veterem consuetudinem, ac ministrarietiam festa convivia, quando exi∣gunt publica vota, decernimus. Neither ought we to abolish our fellivals in memory of our Saviours Nativity, Resurrection and of Pentecost, because they are vestigia legis antiquae Mosai∣cae, and seem to be borrowed from the Mosaical Rites and Ce∣remonies. The verses and sayings of the Heathen Poets de∣dicated to the Muses, and to their gods, not onely holy men, but also the Apostles used, not so that our faith, faith the A∣postle,* 1.67 should stand in the wisedom of men, but in the power of God. The use of humane learning is not to be contemned, by those who would be reputed learned in Divinity: qui libe∣rales illas artes imbiberunt, carum subsidio adjuti, longè altiùs provehuntur ad imrospicienda divinae sapien∣tiae arcana.* 1.68 We ought to take heed of those who under colour of Incorformity with the Church of Rome, and of their de∣sire of the utter extirpation of all reliques of Popery, seek to set dissension in the Church, and to root up some of the most effectual means which beareth up the state of Religion and the pillars thereof, and so make way to prophanation, and to Athe∣isme, to enter and build upon the ruines of the Church. Our Rites and Ceremonies by law established in the Church of Eng∣land, were not such as did peculiarly belong to this or that Sect, but were the antient Rites and ceremonies of the Church of Christ, and we have still the same reason for the use of them, and the same interest in them that our fore-fathers had. That our

Rites and Ceremonies, which we have common with the Church of Rome, are scandalous in their nature and institution, they cannot make appear, neither do they endeavour it more then by their general clamour, which implyeth nothing. That some Rites and Ceremonies we retain which have been polluted, yea, and some peradventure instituted at first for and unto that thing which was evil, although they can prove, yet in tract of time, and by prudent qualifications applyed, that pollution and impiety may be worn or wrought out, and a good use may be found without offence. And although divers Constitu∣tions and Ordinances in use in our Church were made at first under the Papal authority, yet they being such as were not re∣pugnant to the Word of God, nor the Laws and Statutes of this Realm; and some others of those Canons and Constitu∣tions having been purged from superstition, they appear full of sincerity and equity, and so were indenized and made Eng∣lish by our Church and States in Parliament; and are now in that regard no more to be abandoned, then Wheat, because it is said to be invented by the goddess Ceres, or many excellent laws of the Romans set out at first by Painims, and by cruel persecutors of the Christian faith, and are since made of excel∣lent use over all Christendome.* 1.69 But let the Lawgiver or Magistrate be never so careful to satisfie erroneous or tender con∣sciences, he shall never cut out his work to fit every mans conscience or humour: yet when as things injoyned by lawful au∣thority, are in themselves indifferent, and without just exception, or that the matter hangeth even, or doubtful, the weight of Authority must turn the scale between the Magistrate, and the man of a weak conscience, lest the Magi∣strate by neglecting his duty bring a scorn upon his authority, and suffer a scandal to be given unto all others. For although the tender conscience hath cast judgement on the thing as simply unlawful, and just cause may be for a time to give him respite to rectifie his conscience, yet still doth his tender conscience draw him upon the rock of disobedience and contempt of Au∣thority, and giving ill example and scandal, from all which

the following of his tender conscience cannot excuse him, e∣specially if he be in an errour, neither any other pretence, if he may find the means to rectifie his conscience, for he is not then led by invincible ignorance, which, as the School∣men say, is, purae negationis, but rather by a supine negligence, or an affected ignorance, which is termed pravae dispositionis. Through ignorance,* 1.70 saith the Apostle, Which is in them, because of the blindness of their hearts, having their understanding darkned. Distinguendum est an pro certo sciat homo, an conscientia pulsat animum ex credulitate probabili & discreta; an ex credulitate levi & temeraria,* 1.71 ne contra legem, vel contra judicium consci∣entiae committat offensam.* 1.72 Insipida est consciemia, quae rationis & scientiae salem non habet: non debet quis sibi de eo facere con∣scientiam, quod non potest explicare secundum rationem veri & constantis judicii: nec conscientia dubia, est conscientia; aliàs cum dubitare de omnibus possit, ctiam de indubitatis, ae etiam sine ratione, quid est quod dici dubium non possit? Into these per∣plexities do men fall and often draw others by fostering and cherishing of an errour, whereby they seem to take as fast hold of the errour, as the errour doth of them, and so they fall into the number of those, who do erre in their hearts, and not onely in their heads. If our Christian liberty, which ought to be subordinate to charity, we ought to moderate and re∣strain, rather then offend the weak consciences of others; we ought certainly to indure, in things of their own nature indiffe∣rent, the restraint of our liberty by Lawful authority (unto which we must be obedient for conscience sake, faith the Apostle) rather then to offend the Law, and violate the Peace of the Church: Qui contra pacem Ecclesiae sunt, si dignitatem aut cingulum militare habeant, nudentur eis; si sint privati nobiles,* 1.73 suarum substantiarum proscriptionem patiantur: si sint ignobiles, non solum in corpore verberentur, sed exilio perpetuo castigentur. If we look for a Church where there are no scandals given to mens consciences, neither any inperfections and de∣fects, we must go out of the world; for we shall find none, but only the triumphant Church in heaven. There may be a true Church where there are imperfections, so as the essential marks and properties thereof are not wanting. If amongst the Corinthians the Church did remain, in respect of the Ministery

of the word and Sacraments, notwithstanding their Sects and corruptions, and which was worst, many of them had even in derision the doctrine of the Resurrection.* 1.74 If also amongst the Galatians great backsliders and full of corruptions the Apostle acknowledged a Church, wherein salvation might be had, he would certainly have condemned such men as our new Profes∣sors, who for much slighter causes make a separation, and break the peace of the Church upon dislike of all Ceremonies and discipline, that is not of their own invention. The Apostles delivered not express and particular order for all Church Go∣vernment, but left most of it to be accommodated to the times and occasions, as might best serve for edification and the Ser∣vice of God. And so touching Ordinances and customes in the Church, which men ought to observe, and those who are contentious, and given to innovations, the Apostle taketh them off with this saying, We have no such customes, neither the Churches of God. In his rebus de quibus nihil certi statuit di∣vina Scriptura, mos populi Dei, & insti∣tuta majorum prolege tenenda sunt: & si∣eut praevaricatores divinarum legum,* 1.75 ita contemptores Ecclesiasticarum consuetudi∣num coercendi sunt. But these innovators are not ruled by any customes and Lawes, but such as please them. They still urge without bringing any proof, that nothing should be established in the Church, which is not expresly commanded in the Word of God; and that their Presbyterian discipline is onely of divine right: wherein they deal unjustly in requiring express Texts of Scripture from us, which is not needfull, whereas they in their own cause obtrude upon us peremptorily things they call necessary, for which they cannot bring any positive, express or probable warrant out of Gods word, or from thence to be probably deduced and inferred. They catch at every Text of Scripture as their fancy leadeth them, according to the old and usual course of Hereticks and Schismaticks, to prove their own, and destroy the old Church Government, without any consi∣deration of the Expositions of the Antient Fathers, or Modern Divines, or any regard how wilfully they pervert and abuse the

Word of God, as those who have largely and learnedly hand∣led these points, have made appear.* 1.76

But seeing they deal thus with the Scripture, it cannot be ex∣pected they should regard humane Laws, neither the power gi∣ven by God to Kings and to his Church, and to make such Laws as carry with them both a directive and a coercive power. Such Laws and Constitutions, I mean, as are in no respect repu∣gnant to Gods word, but are deduced from the general rules thereof, and grounded upon the varranty left by our Savi∣our and his Apostles as ••uides and limits for the Church in all ages. Humane lawes are measures, saith Aquinas, in respect of men whose actions they direct and govern, and these measures have their higher rules by which they are to be measured, which are the laws of God and nature. Those Laws there∣fore have the essential parts and properties of the best positive Lawes, which the Lawes of God do approve, and are such as are extracted from the light and law of Nature, and the com∣mon and demonstrable precepts thereof, most agreeable to common equity, and are most necessary for the preservation of the peace and welfare of the Church and Common-wealth. It is therefore a false and dangerous doctrine of theirs, that it is not in the power of the Church or State to restrain and bar men by Lawes from their liberty, which God hath grant∣ed unto them, no more then it is to take away the yoak which God hath laid upon them, and to countermand that which he hath expresly injoyned. They may find a difference between the liberty granted us by God and nature, which is restraina∣ble, and the eternal precepts of God which are immutable. By this doctrine the power of government is so restrained, and so weakened, as that the frame and pillars thereof are shaken, and the difference almost taken away between the things of greatest weight, precisely defined and injoyned by the Word of God to be observed alwayes (as are those which the School∣men

call his negative precepts) and those other things of less moment, which have little or nothing of precise and perpetual commandment, but more of liberty granted unto men by God and nature, and yet not exempted from the power of the Church, or Magistrate, to alter or restrain according to special occasions and variations of times.

In this miserable age wherein we live, we are to deal with men, such as the antient times never produced; men who rest not upon the disobedience of Princes and contempt of Laws Divine and humane, but teach and practise the introducing of new orders and discipline in the Church and State by sire and sword, and do destroy those men and their estates who joyn not with them: Men who gather themselves together against the soul of the righteous, and condemn the innocent blood.* 1.77 Such men are not to be found, save in the time of Antichrist, men∣tioned by the Prophet, who shall wear out the Saints of the most High, and think to change times and laws.* 1.78 The doctrine of the Gospel, much less the Discipline of the Church, ought not by such means in any case to be brought in, or established: Apud Christianam disciplinam magìs occidi liceret,* 1.79 quàm occi∣dere: non est religionis cogere religionem: Religion saith Saint Austin is planted and preserved by instructing more then by commanding; by admonishing more then by threatning.* 1.80 Not that we, saith Saint Paul, have dominion over your faith. Prae∣cipit sancta Synodus nemini ad credendum vim inferri, cui enim vult, Dous miseretur, & quem vult, indurat. The sword availeth little with the souls of men, unless to destroy them together with their bodies, and to make men desperate, or dissemblers in Religion, and when they find opportunity, to fall into rebellion, as there are many examples. The old just and necessary Edicts made by the best Christian Emperours against Hereticks, and those who were of a contrary religion to that which was publickly received and established, were but Civil and Political Lawes for the tranquillity of the State and People, quae pacis perturbatorum pervicaciâ exasperanda sunt, pa∣rentium et obtemperantium bono temperandaet moderanda sunt:* 1.81 and this K. James declared, when he set forth the oath of Allegeance. Those Imperial edicts did not punish men for their diversity of religion, neither gave them toleration: their scope and end

was not to inforce the conscience,* 1.82 but to preserve the Peace. Aliae sunt Leges Caesarum, aliae sunt Leges Christi: alind Pa∣pinianus,* 1.83 aliud Paulus noster docet. And yet Saint Austin doth allow of the punishment of some hereticks by pecuniary mulcts or banishment, as being not repugnant to Christian lenity, and sheweth that many of the Donatists were by the terror of Laws and edicts brought to the Catholick Faith, and to unity in the worship and service of God.* 1.84 Aliqui meliùs procul dubio coer∣centur gladio, illius videlicèt, qui non sine causa gladium portat. Rom: cap. 13. quàm ut in suum errorem multos trajicere per∣mittantur. Some discreet coercion may oftentimes necessarily be used towards those who contemn or neglect the service of God, and the preaching of his word, the means of salvation, The parable of the marriage feast saith,* 1.85 compel them to come in, that my house may be filled. Melius est cum severitate diligere, quàm cum lenitate decipere.* 1.86 Parcere alienis peccatis quae dedo∣cere & objurgare debemus, hoc est, propter quaedam cupiditatis vincula, non propter Charitatis officia. But in the antient times of Christianity, such means were not used, as might make Hereticks & Schismaticks more obstinate, then docible, through the preposterous proceedings of the Magistrates and Ministers of justice in the execution of penal Lawes, used rather as snares for gaining of money, and pecuniary mulcts imposed, rather as prices set upon offences, then as punishments for the refor∣mation of manners. Such Magistrates administring Justice in such manner are obeyed non tanquam Rectores morum, sed tanquam dominatores rerum;* 1.87 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 nun∣quam 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,* 1.88 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; do∣minion 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,* 1.89 distinctio fidelium & infidelium in se considerata non tollit domi∣nium, & praelationem infidelium super sideles. And this did the antient Christians acknowledge by their great loyalty towards their Soveraign Princes, heathen Emperours and cruel perse∣cutors. But our men indued with their new lights, have found that the ungodly have no right to the Creatures, but are usur∣pers, 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,* 1.90 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 quàm 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 Ro∣man Church, that the Pope hath power over Infidel Princes to raise Armies against them, although they do hinder the preach∣ing 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 authori∣ty annexed to his spiritual, either directly or indirectly, in or∣dine 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?* 1.91 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 per∣sons and consciences of men, by that which bringeth ruine unto Nations. The Jewes were guilty of the greatest incredu∣lity,* 1.92 ingratitude and crime, and yet the Gentiles were admo∣nished by Saint Paul not to shew any cruelty towards them, or in∣sult over them, but to seek to provoke them to an holy jealousie, and so to gain them unto Christ. When Nathan reproved Da∣vid, 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,* 1.93 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.* 1.94 Civitas Dei quamvis haberet tam ma∣gnorum 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,* 1.95 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 Chri∣stians 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 bles∣sed 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,* 1.96 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 Go∣vernment, and advancers of Popular licentiousness, and that their Reformation in Religion proceeded from faction, or tur∣ned 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.* 1.97 But it hath been very antient and usual to lay that general charge of raising Se∣dition, when the malice hath been greater then the matter, and no other special crime could be found. So Saint Paul was accused for being a pestilent fellow and a raiser of sedition. Ter∣tullian saith, Christians in his time were called hostes publici, enemies of all Common-wealths; and Suetonius doth most im∣piously say, Judaeos impulsore Christo assiduò tumultuantes:* 1.98 and so Tacitus saith, that Nero, Reos quaesitissimis poenis affecit, quos per flagitia invisos vulgus Christianos appellabat; unde quam∣quam adversus sontes, & novissima exempla meritos, miseratio oriebatur, tanquam non utilitate publica, sedin saevitiam unius absumerentur; thus happeneth to all a like measure, who lye under the publick hatred. It is true that the change of Religi∣on in Germany and in other parts of Christendome was driven on in a tumultuary course, and was not wrought in such a calm as it was in England, where these changes went formerly in an orderly and quiet passage, under the conduct of a Royal power, and a prudent Council of State. Religion changed as it were by degrees and insensibly; all things seeming to re∣main in the same course and state as before: and as one obser∣ved, it was in those times so carried with us, ut Catholicam re∣ligionem sine sensu Plebs exueret, cultu in specie eodem manente. The Parliaments in England in those times gave much counte∣nance

and authority to those alterations with the People. The Kings and Queens would hardly have effected it, Regiâ manu, notwithstanding their power, and the love they had of their People. The Parliaments were wrought not onely to rati∣fie,* 1.99 but to be petitioners for those changes in Religion. A stranger writeth that when Queen Elizabeth came to the Crown, religion was not altered with violence, and bloud, as in France, Scotland, and the Low-countryes, but changed and established by Laws, by Royal mandates, and with Parliamen∣tary concurrence, which saith he, hath been a subtil and power∣full invention armed with the authority of Prince and King∣dome, for the sure rooting and settlement of sects and heresies. These quiet alterations formerly were even marvellous in our eyes,* 1.100 and as it were a selicity peculiar unto our nation, as was said of that change upon the death of Queen Elizabeth and the coming in of King James, who acknowledging to the Lords of England their great loyalty in his coming to the Crown, said, that it was a success above the course of nature, to have so great a change with so great a quiet. In Germany, France, Scotland, and other parts of Europe, many of the Contrivers and Actors in the reformation of religion, did neither sapere ad sobrietatem neither agere cum sobrietate, especially when they were strongly opposed, and perceived divers designs for their destruction: for some of them had a mixture in their heads of the Anabaptisti∣cal leaven, and were infected with that fury. Insomuch as Bucer a man of great learning and moderation would often say unto them, that in their great heat of zeal in rectifying the service of God, and reforming the Church, good order and discipline failing amongst them, the tumultuous and seditious persons were not chastised, neither any order and decency in the service of God observed; and therefore their laudable en∣deavours would not long last, neither happily succeed: for the discreet and moderate men amongst them, and those in greatest authority were oftentimes compelled to suffer many enormities and outragious actions, lest by enforeing correction and discipline, they should lose the assistance and affection of their own party.* 1.101 The Captains durst not take the boldness to punish, as the fouldiers did to offend: voluntary obedience maketh the command and power weak, as is that power which

cannot subsist by its own streng. Before Luther was in his grave, and when his reformation was but in the infancy, some who seemed, or were reputed his disciples, brake out of their pretended integrity through an over zealous and irregular desire of reformation into abominable opinions and furies, tending to the destruction of all Goverment in Church and Common-wealth. And Luthers doctrine also meeting with divers of weak and turbulent Spirits, over greedy of reformation, and abounding with wild zeal, or Spiritual pride, all the pre∣cious liquor they received turned into gall and vinegar, and from these did seeds soon spring up, which raised a swarm of* 1.102 Anabap••i••ts and other fanatick Sectaries, which made themselves a new Gospel of Licentiousness and Rebel∣lion, and scorned Luther and his doctrine at last. And although after they had done much mischief they were suppressed, yet they scattered such seeds as the fruits there∣of do now exceedingly afflict the Church, and cause great di∣sturbance, which to plous men is the greatest persecution,* 1.103 for this afflicteth their hearts and souls, qui patiuntur hanc perse∣cutionem non in corporibus, sed in cordibus, & est persecutio in∣trinseca & extrinseca.* 1.104 By this we may see what hath moved Princes and Common-wealths, not to tolerate divers religions, or any thing different from the religion established.* 1.105 Mahome∣tanaem sectam latè sparsisse se, dum religionis nostrae capita inter se diffident, & sic factum est ut ad Mahometanos partìm vi, par∣tim spome deficerent populi: hinc amissam Ecclesiam Antioche∣nam, Alexandrinam, Hierosolymitanam.* 1.106 Multi volentes esse Christiani propter eorum diffentiones, haesitare coguntur; & mul∣ti Maledici in his inveniunt materiam blasphemandi Christia∣num nomen, quia tales Christiani appellantur: The Devil, saith Saint Austin doth stir up Hereticks, who under the Christian name do resist the Christian doctrine. The Romans had ever a circumspect eye, and carried a severe hand on those qui nova sacra & peregrinos ritus introducebant; and they ordained,* 1.107 ne qui Dii, nisi Romani Dii, neque ullo modo quàm patrio colerentur.* 1.108 For as Livie saith, the wisest and most skilful in all divine and humane lawes, held nothing so forcible to overthrow Religion,

as when the Divine service is celebrated after some strange and forreign course, and not according to the antient custome of their Countrey. Which consideration moved Numa Pompili∣us in the first foundation of their Common-wealth to provide, ne quid juris divini, negligendo patrios ritus, peregrinosque ad∣sciscendo, turbaretur. Constantine made a Law, that all Chri∣stians should use the same Temples, and not have different as∣semblies. And other Christian Emperours did very strictly command,* 1.109 ne de Religione vel Doctrina disputent, velconcilia∣bulis praesint, vel turba concitata simpliciorum animos seducant. Nemo cujuscunque conditionis de side Christianâ publicè turbis coadnnat is tractare conetur; ex hoe tumultus & perfidiae occasio∣nem requirens; ne facultas tribuatur publice vel privatim con∣vocandi coetus, & de haeretico errore disputandi, & perversitatem facinorosi dogmatis adferendi: nemo hujusmodi libros habere, & sacrilega scriptorum monumenta andeat servare. Qued siquis de his criminibus fuerit deprehensus perpetua deportatione dam∣netur. Variety in opinions of religion causeth several conven∣ticles, evermore dangerous in a Common-wealth, as we shall hear hereafter; and from variety in religions they fall into factions, and from all religion into Atheisme. Ex schismate hae∣resin nasci, ex haeresi plerumque Apostasin. Therefore Julian the Apostate called from banishment the Donatists and other Hereticks, and permitted them and all others who professed the Christian religion to maintain what opinions they would one against an other, that by their diffentions the Christian religion might be weakned, and Paganisme the better establi∣shed. For it fareth with the vulgar as with the Epicurean sect of Philosophers, grosse witted and sensual men, who when they did see such great and continual strife concerning the Diety, took the shorter way by denying it altogether, then to feigne as others did many uncertain gods, and so fall into inextricable labyrinths and contentions with other Philosophers, which could never have any certain determination and end. The Jews are permitted the free exercise of their religion in some Christian countries, which is denyed to those they do account Hereticks, and Schismaticks, and the reason is given, because they pollute and violate the Christian religion which they professe, and disturb the Peace of the Church and Com∣mon-wealth

where they live: Haereticorum,* 1.110 qui profitentes ipsum Evangelium illud corrumpunt, infidelitas est omnium gra∣vissima. De his qui de illa gente Christiano nomini contradixisse sciuntur dictum a sponsa filii matris mei pugnaverunt contra me:* 1.111 Inimici ejus sunt ipsius domestici: Haec intestina & insanabilis plaga est Ecclesiae, pax à paganis, pax ab haereticis, sed non pro∣fectò à filiis. Therefore to conclude this of religion, and the disturbance of the Peace of the Church: the best Philosophers and Lawgivers did ever repute unity in religion the chiefest Pillar that upholdeth humane Society, and obedience to su∣pream authority, which cannot stand after religion is fallen* 1.112

CHAP. V. Of the use of Parliaments; Of the danger that cometh by the abuse of Parliaments; and the Factions that there∣in arise.

WE pass now from the Church to the Parliament, and to those abuses and corruptions, which both destroy the use and the rights of Parliaments, and the power and Majesty of Mo∣narchy, two pillars of kingdomes and Common-wealths. As God hath set Kings in the highest place and office, and intrusted them with the greatest authority on earth, and will therefore take the strictest account of them, so cannot they escape his heaviest judgements, who are chosen to counsel him in his greatest affairs, and do not onely fail in their duty, but do in∣trude themselves into his office, and hinder him in the observa∣tion of his oath, and in performance of his duty to God and his people. As the estates in Parliament ought to be Conser∣vators of the Rights and Liberties of the People, so ought they to be of their own bounds and limits, in which if they exceed, they do also give an ill example to all other inferiour Courts of Justice, (subject to their care and regulation), to the hindrance of Justice and distribution of common right

which turneth to the disturbance of the peace of the King∣dome, and raising confusion in jurisdictions.* 1.113 Si iniquum est transgredi limitem agrorum, quantò iniquius est transgredi li∣mitem morum? As it is a great crime, by the laws Divine and Humane, to remove the ancient bounds and land-marks; so is it no less, to remove the Law bounds and limits of Jurisdi∣ctions.* 1.114 The Princes of Judah are like those who remove the bounds, upon whom I will poure my wrath, saith the Lord, like water. Such incroachments and usurpations, proceeding from those who should be conservators and reformers, work the speediest confusion in all Societies: and it sheweth Gods great indignation, when that which should have been for our welfare, becometh a snare.* 1.115 Therefore parliaments when they erre thus, they erre most perni∣ciously, either in being insnared and driven by an over-ruling power, or by an active faction, or by violent perturbations raign∣ing in them, and then do they not deserve the name of Parliaments; for as Cicero saith, Rempublicam dici non posse, optimatum factionem, Populi conspirationem & factionem: tunc esse Rempublicam, id est, rem Populi, cùm benè & justè geritur; non populum esse omnem ca∣tum multitudinis, sed catus juris consensu & utilitatis commu∣nione sociatus.* 1.116 Ʋbi est tyrannis vel factio, vel dominatus alicu∣jus turbae, non tam vitiosa est Respublica, sed nulla omnino: ubi lex non est, ibi nec Populus est, & si Populus non est, nec Respu∣blica; nam Respublica est res Poputi. And therefore Saint Au∣stin concluded,* 1.117 that the Roman State when it was subverted by Tyranny, or by the peoples factions and iniquity, was not a peo∣ple, in not being juris consensu & utilitatis communione sociatus; neither could it be called properly an cvil and corrupt Com∣mon-wealth; but rather no Common-wealth, when the State was ruined by factions, violence and injullice. David said un∣der Sauls government, that the earth and all the inhabitants thereof were dissolved. And thus they who are not lawfully cho∣sen and assembled, or do act contrary to their calling and du∣ty, cannot challenge any priviledge proper to that office and calling. The Roman Tribuneship was reputed sacred, being e∣stablished

for the safety and benefit of the people:* 1.118 But if the Tribunes do that which is contrary to their office, or cease from doing those things, for which their authority was given them, their authority and priviledges leave them.* 1.119 Privilegi∣um licet non amittitur per non usum, amittitur tamen per usum contrarium, & per delictum oceasione privilegii commissum, & per delictum seii abusum directè privilegii sini repugnans & fundamentum ejus destrmns. And as there are military privi∣ledges, and military offences and punishments, so are there Parliamentary priviledges, and Parliamentary offences, which have had and ought to have condigne pu∣nishments, agreeable to Justice and Poli∣tick government, and presidents in all times and Kingdomes.* 1.120 Although in all Parlia∣ments, Assemblies and Councels, the of∣fences of the particular members ought to be distinguished from those of the whole and intire body, which may also be invol∣ved in their crimes, by connivance at them, or by neglect in punishing or preventing that which lay in their power. Laeditur personali scelcre ac particulari, causa cun∣ctorum: in Populo Israelitico saepissimè uni∣us facinus pestem fuisse mutiorum. Pote∣stas quae inhibere scelus porest, quasi probat de∣debere sieri, si sciens patitur perpetrari. But more properly and directly the whole body offendeth in omitting their Principal duty, and in committing acts con∣trary thereunto, una voluntate, praesidente deliberatione,* 1.121 com∣municato consilio. And as in the Roman History is doth often occur, an privato an publico cousilio. Si defecerit Populus,* 1.122 publico cousilio, dolo malo, sive non, quia delicta vulgi d publica causa separari. A People, a Cohedge, a Body politick may offend, and are punishable, and as in the Law, Populus,* 1.123 vel Curia, vel Collegium hoc edicto ••enentur. Sometimes the offence shall be punished in their natural Person: sometimes in the body Politick: sometimes in both. And much dispute there is amongst the Lawyers, quando universitas punienda sit in suo universali, quando in particulari, quando & quomodo ex delicto

Collegialiter commisso; quando poenâ laesae Majestatis punienda sit universitas, quando singuli ob delictum universitatis; all which I passe over, although worth consideration. The most agreeable course unto Justice is, to lay the greatest punishment upon the Authors and cheife Actors,* 1.124 ut unde orta est culpa, ibi prna consistat. Upon these the Law imposeth the damage for the most part, and oftentimes they bear the whole punishment, if they can be found,* 1.125 in eum supplicium exerceri, qui vim facere tentaverit, & alteri parti causam malorum praebuerit. It was the Command of God unto Moses to take the heads of the cheife of the People and to hang them up,* 1.126 who had consented, dissembled and participated in the common impiety.* 1.127 Causa & origo penes autores, & a quibus contagio. Singulis civibus & civitatibus tumultnantibus,* 1.128 atque adeò (si non rebellibus & contumacibus) sed inconsulto ac temerario motu, vel alieno etiam exemplo, veniam dari. For the multitude or greater number seldome equally offend in the highest degree; multitudo vix peccat graviter, sed aut decepta, aut impetu, aut temeritate, as in the Imperial Law;* 1.129 or by a fatal fury of the time, seising on them as a pestilent contagion; fatali rabie temporis & pesti∣ferâ comagione,* 1.130 as Mendonius the Spaniard said unto Scipio, in excusing his and his peoples rebellion,* 1.131 Multitudo est causa in quam severitas disciplinae exercenda non est; sed si volunt defen∣ere peccatum quasi ex authoritate, tunc multitudini parcendum non est. And therefore we find it agreeable with the practice of the best men, and to the rule given by the most prudent, that the multitude be spared, especially after the offence committed, although not when they are in the act offending, non parcitur multitudini in delicto committendo, ubi perniciosior est quies & cunctatio quàmtemeritas,* 1.132 & nihil festinatione tutius, & magis facto quam consulto opus est. There may be oftentimes just cause to forbear all punishment of the People, as in the case of Syra∣cusa, who being charged with revolting from the Romans, they pleaded for themselves, that their City was undone be∣tween the Tyrants of the one side, who held them under the yoke,* 1.133 and the Roman General on the other side; so as they stood in the midst as a prize or reward for the winner, and ought therefore to be rather restored unto their former estate by the Romans then after so miserable servitude and war to en∣dure a new addition of affliction and misery.

I have observed that there are two Pests and cankers, which in time hath not onely eaten out all that excellent fruit and benefit which Kingdomes have had, and may reap by the right use of Parliaments, but have also caused that institution so ne∣cessary for the Publick good, to prove the bane and ruine thereof. The one is when Kings absolute in power, and ex∣orbitant in their will, give that rule to Parliaments, as Xerxes gave to his Counsellors, to obey, rather then perswade, and call their Parliaments onely out of specious pretences, for get∣ting of money, or to authorise and countenance some sinister purpose and design, using strong delusions, and giving fair hopes of redress of grievances, ostentata potius quam data,* 1.134 nec nisi brevì mansura remedia. Some of the Roman Empe∣rours shewed Kings this way, and obtained their desire, the Senate being fearful and tongue-tyed,* 1.135 and were called aut ad summum nefas, aut ad summum otium.* 1.136 This amongst many other ill effects, taketh off the affections of the people, and fillech them with jealousies, and causeth them not to give credit and assistance unto him when they ought. The other Pest or Canker proceedeth from Parliaments; as when they suffer the power and dignity of the Parliament to be abused and perverted, by a predominant faction, which swayeth all, and cut out all their work in relation to their own designs, and the authority of Parliament serveth, las do journey-men, to make it up, and ac∣ceptable to the people. This is as bad, if not worse then the contrivance of Lewis the eleventh of France, used also since by his successors, who finding how tedious Parliaments were, in their most important affairs requiring most expedition:* 1.137 how apt to fall into im∣pertinent diversions, & into faction, and tur∣bulent licentiousness, under colour of using their just liberties and promoting the pub∣lick good; these Kings procured the power and office of the three Estates to be trans∣ferred to certain select delegates taken out of their own body, and so saved the trou∣ble of the General Assembly, and took away almost all use of

Parliaments, and with it the best means the people had, to ac∣quaint their King with their grievances, and obtain redress, and to preserve their just rights and liberties. And although Parliaments are called for just causes, and do sit in full liberty and freedome, yet doth it often happen as in some General Councils called for the extirpation of Heresies and Schismes, and the preservation of the Church and the peace thereof, that they being not at peace among themselves before they came, neither bringing with them the love of truth and minds in∣clinable to peace and moderation; the former evils (for re∣formation whereof they were called) were not taken away, but strengthened and augmented, and diverse others raised: for those men are most unfit for counsel who have their minds wholly possessed with perturbations and jealousies, or their co∣gitations bent unto faction, or any smister designs. These bring nothing with them but the spirit of contradiction, partial and interessed opinions, secret designs and open animosities. And then it falleth out as Tacitus saith, quae apud concordes vincu∣la charitatis, incitamenta irarum apud infensos crant. Non sic Romani antiqui qui privatas res suas pro Republica contempsc∣runt, consuluerum Patriae consilio libero,* 1.138 neque delicto, neque li∣bidini obnoxii.

CHAP. VI. The Right that Bishops have to sit in Parliament.

TO take a more particular view of those things which de∣stroy the state and essence of Parliaments, we will ob∣serve in our passage some particular men of great estimation, abounding with pernicious hypocrisie, covering their designs under the cloak of counterfeit sanctity, and having their ini∣quity supported and armed with Authority. Ʋbi Dei numen

praetenditur sceleribus;* 1.139 ubi nequitiae suae patrocinium de Scriptu∣ra sacra requiritur; ubi liberator Patriae insidiator ipse liberta∣tis habetur, & tyrannos ulciscendo, quae odissent scelera, ipsi imitantur;* 1.140 ubi Parricidas publicos qui Regem suum occidissent, ipsos omnis Divini & humani juris violatores, pro vindicibus de∣coris publicise ipsos venditare, & liberatorum Patriae nomen u∣surpare. Such mens hypocrisie saith Saint Austin, quia illa quae mendaciter agunt, sic agunt, ut populus eos veraciter agere existimaret, is most pernicious and damnable. When fraud or force have their influence over Parliaments, the stability of all matters there enacted is undermined; for such acts prove but the seeds of future evils and immortal discord. In all well-governed Common-wealths, there hath ever been e∣special care, that the Councils, Parliaments and Courts of Justice, should be free from all force and coercion.* 1.141 By the Imperial Law, ad palatium vel ad forum nullus miles ferat arma. So by the Law of the Lumbards, armatum in curia Domini jus non est ingredi, ut sine rixa & sine suspicione procedant judicia. The Interpreters of the Roman Law say, that arms ought not to be born in the palace, neither in the confines, nor near the gates thereof, and so the Parliament of Paris gave judgment, agreeing with Cicero, judicia nulla sunt,* 1.142 do∣minante vi, vis maximè juri adversa est. And long before did the Roman Law punish by banishment, as guilty of the Law Julia de vi publica, him, who came armed unto their Tribunals and places of judicature, or through an evil intention did disturb and hinder the peaceable proceedings of Judges and those in authority, qui dolo malo fecerit,* 1.143 quo minùs tutò judicia exerceantur, aut Judices ut oportet judicent, vel quominùs is qui potestatem habet, jus decernat, imperet, faciat. Amongst others of the like kinde, we finde in the tenth year of Edward the third two Proclamations,* 1.144 that none should wear armour or weapons in time of Farliament. When Sylla brought his army to Rome, and caused himselse to be made Dictator by a Law, although made for fear, yet with all usuall formalities, Cicero declared that Law to be no Law, but such effects ensued, that the Ro∣man Senate never recovered their former lustre or liberty.* 1.145 The Court of Parliament of Paris gave a severe sentence against some of the reformed religion (their name being crime enough)

and yet the sentence was reversed,* 1.146 ut per vim & vitiose lata, in respect the Judges were over-awed. Sententia per metum lata nulla est ipso jure. When the Protestant Princes and Cities of Germany were summoned to the Councel of Trent, some of them made their Protestation and appeal ad Concilium Generale, pium, & legitimum, and divers learned men declared, that the Canons of that Councel could not binde,* 1.147 quia Concilium illud fuit nullum, vitio indicts ••, habitum & terminatum. It may well be granted that force offered to a Parliament may make void all their acts, if force of fraud used to procure the absence of one of the members may make all their acts invalid;* 1.148 plus nocet unius contemptus, quam contradictio multorum, according to the rule in the Canon Law; which sayeth also, si eos vocatos non fuisse constiterit, sed contemptus, infirmanda erit penitus electio taliter celebrata:* 1.149 Upon which Gardner Bishop of Winchester his assertion, seemeth to be grounded, who being prisoner in the Tower, wrote to the Lords in Palliament, claiming his priviledge of Parliament, and said, that if the Rulers in a General Councel let any mans repair thither, who of right ought to be there, whatsoever is there concluded, is by a universal Law taken to be of no force, by excluding one member wrongfully that should furnish the body. The body ought to be entire and compleat. The Interpreters of the Civil and Canon Law, say, when we name a People, we are understood properly to intend the whole, or at the least the major part: and when we mention the Chapter, Capitulum, we are presumed to intend the whole body or number: appellatione rei venit res integra; & qui de quantitate lequitur de toto loqui censetur, quando natura rei, & subjecta materia hoc exigit, vel alioqui actus esset elusorius. But seeing all the members of a Parliament, or of any great Assemby or Corporation cannot come alwayes together, there∣fore by a universall Law or custome, the presence or concurrence of the major part of the whole, or of those who are present, most commonly doth prevail.* 1.150 By the civil Law there must be in their Senate, Councel house and Municipal Courts two third

parts of the whole number present, for pasting any act of im∣portance, duabus partibus adhibitis Totius, quia illa decreta non valent, quae non legitimo numero decurionum coacto facta sunt. But those acts had the force of Lawes to binde all men which were examined ab omnibus proceribus in gratiosissimo Coetu,* 1.151 & collectis omnibus recitantur, & cumomnes consense∣rint, tunc demùm in sacro nostri numinis Consistorio, reci∣tari; ut universorum consensus nostrae seremtatis authori∣tate firmetur. This was the course observed in makeing their Lawes; for if men when they choose arbitrators, or Law-makers when they constitute Judges,* 1.152 or Princes when they grant a delegated power, in private mens cau∣ses, are never supposed to approve, of that which one man, or the fewer number of them do order, or decroe, unlesse some∣what appear to the contrary; but onely of that which is agreed by the major part, all beeing present at the deliberation and debate, quia tunc judicare intelliguntur, cum omnes adsint, licet omnes non consentiunt. There is then much greater reason for the presence of the major part of the whole number in the su∣pream Courts, Councils and Parliaments, ubi de summà Rei∣publicae agitur. And so may we presume was the intention of all Law-givers and founders of Common-wealths, although not expressed, unlesse necessity in some special cases and accidents doth otherwise require. In such accidents the Law sayeth,* 1.153 pau∣corum absentia, sive necessaria, sive fortuita non debilitat quod a majori parte ordinis salubritèr fuit constitutum. But in Parlia∣ments there is most reason for the presence of all the members for many respects, and cheifely because all & every County, Ci∣ty and Borough, who are to send their own Deputies & Repre∣sentatives, be not without being heard, bound by the votes of others in all things, as well concerning their own particular, as the Common Interest, who are peradventure ignorant, and regardless of their condition, and men whom they never knew, nor to their election gave their consent. For in other Assemblies, Councels and Courts, there is not as in Parliament, of all Persons, states and degrees, either personally or virtually by representation, and intendment of Law, the presence, and as it ought to be to make a just and compleat Parliament, accord∣ing to the ancient and continued Laws and customes of this

Realm, and of other Kingdomes. And therefore the excluding of the Bishops and in them the whole Clergy, ever reputed one of the three estates in all Kingdomes, and called Brachium Eccle∣siasticum seu spirituale, must needs be injust and prejudicious to the Church and common-wealth, and make a maimed and dis∣membred Parliament, the Clergy being barred from having their own Representatives and Deputies in Parliament: where∣by the Common-wealth is deprived of their advice and assistance which may be, and oftentimes hath been found to be of excellent use, in respect of their great learning and judgment, wherewith many of them in all times have been amply adorned, and many of them of great fame for their piety and martyrdome, and have, as appeareth in histories, shewed their love to their Countrey, by many acts and testimonies, and in some times to their own destruction, for opposing the most powerful persons, when the greatest men of the Laity (who for the most part are of much inferiour abilities) have shrunk off and been silent. I cannot therefore perceive how we may approve of the opinion of those who hold that good Acts of Parliament may be made, excluso Clero, and take the example of Edward the first for a Law, who because the Clergy would not still supply him with mony, after they had given him many great summs, he put them out of his protection, and then called a Parliament with∣out admitting them. This being the case, it is an ill argument à tali facto ad jus faciendi. As if we should say the King and the Peers can hold a just Parliament, and make Laws and Levies of monies without the Commons; because long time after the Norman Conquest, Laws were made without them, which are still reputed good Laws. In England as well as in other parts of Christendome, in the time of the Saxons, Bishops were called to their Parliaments, and after the Norman Con∣quest, they were called as other were who held by a Barony: Their tenure as well as their function did warrant it. In the Constitutions of Clarington in the time of Henry the second it is said according to the Canon Law,* 1.154 that Bishops as other Barons, who hold of the King in Capite, debent interesse Judiciis Curiae Regis, quousque pervenitur ad mortem vel diminuti nem membrorum.* 1.155 Some members of the house of Commons, and others have formerly been lifting at the removal of the Clergy

from their seats in Parliament, in as much as anciently Ecclesi∣astical constitutions were often made by Christian Emperours together with other civil Laws, but those laws were no other then confirmations of former Canons made by the Church. And in divers Imperial and Ecclesiastical Lawes it is said, Sicut Leges Civiles non dedignantur Ecclesiasticos Canones imitari, ita sacrorum statuta Canonum, Principum constitutionibus adju∣vantur. And also they did farther urge, how that in our Par∣liaments, Ecclesiastical laws in the time of the Saxons, and since were made; whereas the Parliaments did but confirm them at the Petition of the Clergy, not frame and dispute them. And if the Laity entrenched too far, the Clergy usually made their protestation. And he in the said Treatise also faith, that Church-laws in Parliament did not move from the Lay-mem∣bers, and that the success of the Laity was ever fruitless in all their endeavors to establish laws Ecclesiastical without the Cler∣gy. Although by the Imperial Law, Church∣men seem to be generally forbidden to deal in secular affairs and offices,* 1.156 and so by the antient Canons of the Church, Cloricis opprobrium est immiscere se forensibus nego∣tiis, sou disceptationibus: Non susceptores vel exactores tributorum fieri debent: nec conductores vectigaliorum, vel alienarum possessionum, nec actores vel procuratores vel fide jussores esse: Nec Clerici Justiciarii se∣culorum Principum esse debent. Tit. ne Cle∣rici cap. 4. Decretal. yet are Bishops al∣lowed by the antient custome in Kingdomes, and by the Judge∣ment of Divines and Lawyers to be Chancellors and Treasu∣rers of Princes, and to be Embassadors, to have their voyce in Parliaments, and to be of the counsel of Princes, without any derogation or prejudice to their Ecclesiastical calling. For the Prelates and Churchmen being brachium Ecclesiasticum ever reputed as Deputies of the Kingdome, and one of the three Estates of a Kingdome, as well as the Laity, ratione Ecclesiae quam regunt; & dignitatis quam in Regno habent, & dicuntur Cives originarii, licet sint alienigenae, as the Law∣yers say. The Priest is a Pillar of the Common wealth, where∣in

he faithfully serveth God and dischargeth his duty.* 1.157 The Scribes and the Prophets and the Preists were admitted into the Publick Counsels, and some of the Levites and Preists, were joyned with the fathers of Israel to Judge in controversies.* 1.158 Etsi utraque functio civilis & Ecclesiastica, hominem totum requirit,* 1.159 tamen naturâ suâ non pugnant in uno homine, licet pugnent naturâ hominis incapacis utriusque: non esse incompa∣tibile munus Ecclesiasticum & Civile, bene tamen disjuncta reti∣neri, Howsoever thus much may follow the too much restraint of the Clergy, although it be to keepe them within the limits of their function, that their Persons will be brought into con∣tempt, and thereby paradventure their function and ministery, especially with the vulgar; and they themselves will fall into a carelessness in ever seeking the advancement and welfare of their Country, wherein they scarce finde so much favour as aliens, and cannot obtain those rights, which have been granted unto them by Magna Charta, in these words Ecclesia Anglicanae habcat omnia jura sua integra, & libertates suas illaesas &c. Of which none of the least is the having voice in Parliament, for suffragii lationem cuique homini eripere, est civitatem liber∣tatemque eripere;* 1.160 & durior severiorque sit sententia non moveri ordine quam moveri, si honores ordinis adimantur. And seeing the Clergy are Citizens and Subjects, and are parts of the Common-wealth and liable to taxes, tributes and other bur∣thens which are not incompetent, but may stand with their calling; by parity of reason, they should not be deprived of those rights and priviledges which others enjoy, when the use of them doth not derogate, neither hinder the exercise of their sunction and ministry. So then the absent who ought to have voice are to be called to the debate of matters, especially of greatest impor∣tance, or else the absent are not bound by Law, neither those who are present, if they are not the major part of the whole number, much less the whole and entire body,* 1.161 Actus minoris partis uni∣versitatis, neque istam minorem partem obligat, quia quasi sic actum fuisse praesumitur ab iis, ut non aliter quàm veluti universi∣tas obligaretur, & ibi non est universitas, absente majore parte uni∣versitatas. The authority of the whole is said properly to be transferred to the major part present, when the matters and things to be determined concern the community and univer∣sality,

and are belonging to the entire body, and concern little or nothing particular interest. But when there is a con∣junction of both common and particular interests, there is a necessity of having those particular consents, or at least their presence:* 1.162 quod pertinet ad omnes, non tanquam ut ad universos solummodo, sed ctiam ad particulares & singulos disjunctim, quorum interest ut singulorum, tunc non sufficit res adprobari à majore parte, sed ab omnibus & singulis. When prejudice may happen to severall places and perlons in their own particular, then the consent, or at least the presence of all is necessary.* 1.163 By which reason after the generall Councels war ended, the Prelates who were present at the Councels caused the Canons agreed unto to be sent unto those Provinces and Churches, whose Prelates were absent, notwithstanding they had Lawfull sum∣mons; because those Churches seemed not to be bound by those Canons unto which their own Prelates gave not their con∣sent. And yet by the Canon Law, and in many cases by the Civil Law, volum as seu consensus requiritur in ipso actu, nec possit ex intervallo praestari, maximè ubi solennitas & tractatus Praecedens, seu consensus vel authorit as requiritur de jure & ne∣cessariò pro forma & solennitate actus. Moreover the particular members of a body Politick or Parliament cannot give their consent or dissent disjunctim and in several places, unto that which is of publick and common concernment and interest, but when they are assembled in due form and solemnity. We per∣ceive by the judgement of wise and learned men, and by experi∣ence in all times, how precious is the presence, and prejudicial the absence of Judges, Counselors or Parties interessed.* 1.164 The Romans were so strict in the case of a private man condemned to dye by one voyce, more then there was for his acquittal, that the sentence was suspended because of absence of one of the Judges. Sometimes by one man all are brought from an error. By the Counsel of one man a puissant army hath been deseated.* 1.165 One Ephesius prevailed with the Romans in Councel assembled, to send into Greece to get their Laws, whereupon the Romans did ground and forme their excellent Laws of the twelve Tables, Fons omnis juris publici privatique.* 1.166 Onely Gamaliel prevailed with the Jews in their Counsel, and staid thei furious proceedings against the Apostles. The Councel

of Nice concurred in their Judgment with Paphnutius.* 1.167 The Emperour Frederick the second kept divers Cardinals in prison, and the Pope dying during their imprisonment, the other Cardinals would not proceed to the Election of a new Pope, neither could they by law, as they affirmed, untill their fellows were released:* 1.168 and those who were under restraint made their protestation against any election during the time of their imprisonment, so as the See of Rome was void twenty moneths. When the Roman Senate discontinued their anti∣ent custome of having a full number alwayes present, oppor∣tunity was given and taken for the setting in hand a most per∣nicious abuse and practise, as Asconius observed, ut per pancu∣los ••aci••bant Senatus-consulta, & ii omnes suae factienis, à qui∣bus quod libitum erat facilè impetrabant: when none were present, but those of their own faction, they did what they list, and the others who were absent betrayed their Countrey, in neglecting their duty.* 1.169 Quid aequi p••ssit expectari ubi per in∣frequentiam ••urtim Senatus-consulta facta sunt? In the multitude of Counsellors there is safety, saith Solomon. Thus the Roman Decemviri,* 1.170 when they had setled their authority, they changed their former moderate course, and had daily secret meetings, like our close Com∣mittees, apart & inclosed from others. At home they determined how matters should pass, and in open place they pronounced the sentence according∣ly. The common opinion was, that they had conspired not onely for the present time to do wrong, but were confederated, and bound it by an oath to hold the possession of the Decemvir∣ship for ever.

CHAP. VII. The necessity of having all the Members present in Parlia∣ment, or the greater number of them, and the danger of Confederations, Associations, Ingagements, and other indirect practises, contrary to the Rights of the King, and the liberty of the Subject.

AS the absence of any of the Members make all their Acts void, or voidable, when their absence is caused by fraud, force and tumults; so are the Acts of all that are present void, and their rights and priviledges cease, when they who sit and act, change the Parliament into an unlawful Assembly, and by covert and indirect practises, conventicles, associations, con∣trived in close Committees, endeavour to circumvent the King, or to enforce him, and to abuse the people and the trust reposed in them; All Associations, Conventicles and confede∣rations, without warranty from the Supream Authority, are by all Lawes Divine and Humane void, as being the most effe∣ctual means to disturb the peace, to introduce innovations in the State, and to weaken all bonds of loyalty and obedience. Qui faciunt ligam vel societatem ad eorum defensionem,* 1.171 ut Florentini, Perusini & alii: hoc exprimunt, sed aliud in ve∣ritate agunt. Istudest signum proditisnis, & proximè post hoc cadebant ab Imperio Romano, & pro liberis se tenchant. But those Associations are the worst which being in themselves un∣lawful, have the countenance and support of Parliamentary authority, ut unde jura nascuntur, injuriarum nascatur occasio, when that which should have been for our wellfare becometh a snare, when the Leaders of the People cause them to erre, and they that are led by them are destroyed; like the authority of the Roman Tribunes of the People, which the People did a∣dore. But Appius Claudius said unto them,* 1.172 ye give a favou∣rable ear to all your Tribunes, although they ruine the Com∣mon-wealth, and ye being thus carried away by the sweet∣ness

of that authority, suffer under it to lurk any mischief whatsoever. This power and the exercise thereof by the Tri∣bunes was the cause of frequent seditions: Quae authoritas specie quidem tuende Plebis,* 1.173 cujus in auxilium instituta erat, re autem dominationem sibi adquirens, studium & favorem Popu∣li legibus agrariis, frumemariis, judiciariis aucupabatur; in quibus omnibus incrat species aquitatis, sed haecipsa in perni∣ciem reotham, & misera respublica in exitium suum merees erat. It was one of the cheisest articles against Peiree Gavistion of treason, in Edward the seconds time, that he assumed Regal power in makeing alliance and confederation with the People, and tooke an oath from them to live and dye with them. These associations and consederations draw unlawfull assemblies, and fedition; and therefore by the Roman Law, he was guilty of treason,* 1.174 cujus conatu catus conventusque sum hominésve ad seditionem convocentur, vel qui turbae vel seditionis consilium inierunt, And therefore as in the Law, Conventicula, omnesque conventiones inter Personam & Personam, inter Civitatem & Civitatem omnibus modis sieri prohibemus, & praeteritas factas cassamus. And also those who suffered Conventicles in their houses were punished,* 1.175 and their houses confiscate: Publica∣tur domus in quo siunt Conventicula illicita: domum vel possessio∣nem ejus in quâ convenerunt, sanctae assignari Ecclesiae, by an other Law; Clerici & monachi conjurantes, vel conspirantes, aut factiones componentes aliquas, deponuntur & omninò cadunt de proprio gradu.* 1.176 By the golden Bull of the Empire, all unli∣cenced confederations made between the Princes, Cities and states of Germany (subjects much more at large then others) are strictly prohibited: for associations and confederations are proper onely to the supream Powers, are inter jura summa Imperii: unio 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,* 1.177 or doth keep the power longer then he hath warrant by Law, or from his Prince; Ita Patrocinia injusta omnibus

modis corrigenda sunt,* 1.178 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:* 1.179 nulla conventio∣ne juri Publico derogari possit: generaliter quoties pactum a jure communi remotum est, servari non oportet,* 1.180 nec tale juramentum servandum esse, quia contra bones mores est: no Oath or Vow can bind, which is contra bonos mores,* 1.181 vel contra vim & autho∣ritatem 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 Di∣vine Law, saith Saint Ambrose,* 1.182 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.* 1.183 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 faculta∣tem nostram, vel cum vocatione nostra pugnat.

As those are abominable Associations, Covenants and con∣federations 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 con∣currence or connivence of the Soveraign, who thereby doth lend his hand to destroy himself, contrary to all Policie, rea∣son of State, and to the rules of Government, as doth ap∣pear 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 peo∣ple, abounding in a wilful errour framed out of affection, then which nothing is more violent and furious. The King thus joyn∣ing 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 subver∣sion 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,* 1.184 are but invitations and steps to more insolent demands and grievous pressures: Quicquid de Majestate Regia cesserunt Reges, cum eo simul de summâ re∣rum periclitandum esse. Inter fortunam maximam & ultimam nihil interest:* 1.185 Imperium habentibus nihil medium inter praecipi∣tia & summa. It is a strong presumption that Princes are ve∣ry 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 ma∣king of these they pretend, and peradventure intend the pre∣servation of Religion, their rights and liberties, and the re∣lease and prevention of grievances and burthens; yet this preposterous course, this indirect and violent means u∣sed 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,* 1.186 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,* 1.187 and then the desire of dominion seised upon them; for liberty seemed little worth, unless they had domination and rule. Li∣berty 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:* 1.188 principatus quem aut seditio extorsit, aut ambitus occupavit, etiamsi moribus atque actibus non offen∣dit, 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 incri∣cately 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 distrust their own strength, they have often put themselves under the protection of a forraign Prince, and, as Bodin observeth, from Clients they fall to be Subjects, and soone after from Subject; they become slaves. But if they do escape from being slaves or Subjects to their new Patron and Protector, which is very rare, yet they fall into discontents and jars with him, who never trusteth them, and never part fairly from him, or from any Prince, by whose power they have been supported against their Soveraign. Moreover those who have been contrivers and chief actors in a Rebellion, and have affrighted and cheated the People out of their Allegeance, and quiet estate, and drawn them to their faction, they are like those Ringleaders in the Rebellion of the Roman Colonie, who when they found many of their followers inclined to send a supplication to Rome, they could not indure it,* 1.189 privato peri∣culo corum publicum implicitum erat, they intangled the Com∣mon cause in their own particular danger, and fearing that they at last should suffer for all the rest, and be made a sacrifice to the Romans wrath, they turned the Colonie not onely from all consultation of Peace, but incited them to invade and spoil

the Roman territories, and by addition of new insolencies to put them from all hope of peace and reconciliation, and so did they ingage all as far-forth as themselves for their own particular interest and safety.

In these great attempts and dangerous experiments upon a state and Common-wealth, although men do not set, as commonly they do, specious colours upon foul designes, but do really aime at some good reformation, and intend to proceed upon justisiable grounds and reasons, or at least so seeming unto them, yet soon after they have taken the worke in hand, begun upon better intention than warrant, the Scene is chang∣ed, and they slip almost insensibly into the use of dangerous and unlawfull means, through the many oppositions and diffi∣culties which dayly do incounter them, and into strange and unthought of labyrinths, and are driven through hopes and feares, which are great instigations to violent motions, especi∣ally if they are possessed with pertinacious spirits, to use those means which peradventure at first their heart did abhorre. As if they seemed to take a pattern from those mentioned in the book of Wisedome, who say, Let our strength be our Law, and let us lye in wait for the righteous,* 1.190 because he is not for our turn, but is contrary to our doings: He that is not for us, is against us. For ambition, fear, desire, revenge, are passions without rest or bounds, and if they meet altogether, as commonly they do in such men, they value nothing that standeth in their way, neither think themselves ever secure, being plunged in these perturbations, and beset and imbroiled on all sides, but still they carry the faces of men who expect nothing but revenge on them either by servitude or death, in case they sink under their burthen. And when they have driven their iniquity to the height, and involved the seduced People in crimes, and at last sinde every mans hand against them, they regard not if their Country perish with them, and in their own sight; which unto all men indued with reason is the most horrid spectacle in the world:* 1.191 As Theodutus said to his fellow-citizens, tyrannized over by two men of greatest power amongst them, that he had often heard of men that for the love of their Country had willingly lost their lives; but those two were the first, that ever were willing their Country should perish for them. But if these high flyers pre∣vail,

then doth their prosperous iniquity kindle in them vast de∣sires, immoderata, incredibilia, nimis alta cupiebat,* 1.192 as was said of Catiline, and they strive as if they would give unto na∣ture a law.

Yet as their prosperous iniquity is intolerable to others, so are they requited in having it as unsafe for themselves.* 1.193 Intole∣rabilis in malo ingenio felicitas est, sed nunquam stetit in solido superba felicitas: and of this the Divine Oracles gives us an undoubted assurance:* 1.194 When all the workers of iniquity do flou∣rish, yet shall they be destroyed for ever. A man shall not be esta∣blished by wickedness. Their root shall be but rottenness,* 1.195 and their blossome shall go up as dust.* 1.196 He shall bring upon them their own iniquity, and cut them off in their wickedness.* 1.197 The heavens shall reveal their iniquity, and the earth shall rise up a∣gainst them. The Royal prophet notwithstanding,* 1.198 sheweth the disturbance in the minds of men, and the great conflict he had in himself, when he did see the prosperity of the wicked, and the calamities which fell on those which feared God, un∣till he considered their end, and how God did set them in slip∣pery places, and cast them down into destruction. By the ca∣lamities falling on just men, and by the prosperity of the wic∣ked in this life, we may perceive that the great Judgement is to come, and that reward and punishment are not to be judged by the things of this life,* 1.199 which fall in like manner both to good and evil men: Non magni pendere seu bona seu mala quae vidimus esse bonis malisque communia, sed illa bona quaerere quae bonorum, at que illa mala maximè fugere, quae propria sunt malorum. When men according to their desire have had suc∣cess in their rebellion and violent change of Government, and that the lot is fallen into their lap, yet the whole disposing thereof is of God, who often granteth them their desire, but yet for their greater punishment, and for as great judge∣ment upon a people and Nation. It was observed that after the Cities of Italy had cast off their subjection to the Ro∣man Empire, as a burthen too heavie, they governed them∣selves not like free States, but as a people divided into seve∣ral factions and Sects, which drew on them a deluge of evils: for Laws being undervalued and laid aside, they sought to sup∣port themselves by Associations and part-takings; and as one

side grew overpowerful and formidable to the other, and wanting ballance for the weaker side; that side so overpower∣full soon fell into several branches and subdivisions, and after into such confusion, all of them, that some of those who were of one party, were joyned in some respects and Inte∣rests with others who adhered unto a contrary party. And so they fell into a civil war, which received no end (as it is most commonly) untill one side was destroyed, and then the whole ruined at last, and tyrannical Government established by the prevailing party. And thus the Italians became a prey to several Tyrants and Usurpers almost in every City. And then followed not long after the faction of the Guelphes and Gybellines, which as Paulus Jovius saith, was longè gravissi∣mus, & summè lugubris tumultus; non urbib••s modo atque op∣pidis, sed pagis agrestibusque familiis codem insaniae morbocor∣reptis vastitatem attulit: cum caedibus incendiisque grassari, co∣gnatis, affinibusque extremam vim afferre, sacra non secus ac profana violare fas putarent; virtutis & gloriae loco ducerent, si adostendendum insigne factionis studium maximè crudeles eva∣sissent. These were the fruits of sedition and part-takings af∣ter 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 com∣pelled 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,* 1.200 that regimen plurium malorum, vel regimen Populi perversi non diu durat, sed de facili in tyranni∣dem unius cadit, & hoc saepius vidimus. There was no reme∣dy left for our Countrey, to appease the discord, but by the

Government of one man, omnem potestatem ad unum confe••re,* 1.201 pacis interfuit: Necesse fuit Reipublicae per unum consuli: There had been no safety, nisi Populus ad servitutem confugis∣set: 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 Egy∣ptians 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,* 1.202 and they were delivered up into the hands of cruel Lords, and mighty Kings had dominion over them.* 1.203

CHAP. VIII. Of Seditions, and seditious Assemblies, and the punish∣ment 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 As∣sociations, Covenants and Ingagements, to wit, Se∣dition, Rebellion, and Civil war. Seditions have been the onely bane of most flourishing Cities, whereby mighty Em∣pires become mortal. They are in direct opposition to Justice,* 1.204 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 commu∣nione sociatus, so as it is manisest, that the unity which Sedi∣tion 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,* 1.205 justitia & utilitate communi nitentem deturbat & dissipat: est

semperpeccatum mortale de se, & principaliter est in procuranti∣bus; 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,* 1.206 then by ac∣cusing 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,* 1.207 The Law saith, Nemo conclamationibus utatur, ne∣mo moveat tumultum seu seditionem sub p••na ultimi supplicii, ubi coetu convemuque facto homines ad seditionem convocantur, quod incidit in crimen laesae Majestatis. Those who used cla∣morous speeches to the Prince or people,* 1.208 Qui suscipere Ple∣bem tentaverit, qui aliquid petunt à Principe, vel populo tumul∣tuosis clamoribus; qui coacta multitudine magna vociferatione quid petunt à Principe vel Populo, tumultuosis clamoribus, ut seditionis auctores puniri. Seditiosi plectendi sunt capite, si sae∣pius seditiose & turbulentè se gesserint: & nonnunquam pu∣niuntur 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 securita∣tem crimen committit, qui convocatis hominibus vim sacit, vis publicae reus est, quia publica pax turbatur, coadunatis homi∣nibus, & omni armorum motu, publica securitas offenditur, as say the interpreters of Law.* 1.209 We find in our most ancient Law-books the raising of sedition to be a Capital Crime. Pla∣cita de crimine laesae Majestatis, ut de nece vel seditione Domi∣ni Regis, vel exercitus ejus: ad seditionem Domini Regis vel exercitus sui. I omit the Laws of other Nations.

When Sedition and Rebellion have found 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,* 1.210 nullo decreto Civitatum institui possint, nec ultra antequam con∣suetudinem, inconsulto principe; nec sufficit quod agatur de com∣muni utilitate seu necessitate civium, nisi ob damnum inevita∣bile evitandum: Qui nova vectigalia exercent, tenemur lege Julia de vi publica, quia vis Reipublicae datur: Force is there∣by offered to the Common-wealth, as much as by raising and arming of Soldiers,* 1.211 the other apparent usurpation of Re∣gal Authority. Nulli prorsus nobis inconsultis quorumlibet armorum movendorum copia tribuatur.

This is a universal Law at this day in all Kingdomes and Com∣mon-wealths, and before this Law the ancient Law of the Romans made him guilty of high treason,* 1.212 qui injussu Rei∣publicae bellum gesserit, delectúmve militarem habuerit, exerci∣tum 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 togeth∣er: Ordo naturalis mortalium paci accommodatus hoc poscit,* 1.213 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 ar∣mour, 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,* 1.214

and this sheweth natural allegiance not to be local, as doth ap∣pear by the Common Law, and by divers Statutes declarative of the Common Law.* 1.215 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,* 1.216 nec alium ei rei sufficere quàm Caesarem, qui cohortes militares op∣portunis locis constituit: eam esse conditionem Imperandi, ut non aliter ratio constet, quam si uni reddatur. As there are some∣things 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 ob∣taine from their Soveraign, by any grant or prescription, with∣out destroying the essential and individual rights of Monarchie. A King cannot grant by his Charter, neither lose by prescrip∣tion, 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,* 1.217 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 po∣testatis; 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 per∣mission

to suffer the destruction of them, or any of them. The∣mistocles 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.* 1.218 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 con∣cedi, 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 Ma∣jesty and Empire could not be gotten from the King of Spain by any grant or transaction between him and his Subjects,* 1.219 nei∣ther 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 King∣doms against the King, or else controversies would remain im∣mortal. 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.* 1.220 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,* 1.221 ita ut sit sine diminutione authoritatis supremae & derogatione directi dominii Principis.* 1.222 And although some of these Regalities seem to be reserved, yet are they grantable and subject to prescripti∣on, as creare Tabelliones, monetas cudere, exactiones vectigali∣um aliquorum, and some others, quae cùm sint inter mino∣ra Regalia corporis, summique Imperii, & Patrimonii Regii integritatem non imminuunt: In his praescriptio valeat

contra fiscum.* 1.223 Census, tributa & dom∣nium 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 do∣maines of the Crown, called the Royal Dowry; for when these are taken away, he doth lose his peculiar and proper liveli∣hood, 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 peo∣ple must be continually burthened with ex∣orbitant and illegal Taxes and courses, used for raising of money, the most usual causes of discord between the King and the People, often produ∣cing 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 un∣to some men released his Tributes,* 1.224 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 a∣way 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 excep∣tion, 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 for∣ces 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,* 1.225 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 juris∣dictio & potestas, quam fuerat translata: neque tamen quocun∣que

modo Regalium concessio fiat,* 1.226 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 titu∣lus bonitatis accusat:* 1.227 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 con∣tinuation of the Parliament, until both Houses should agree for the dissolving of it. But they did not stay for that agree∣ment; 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 de∣stroyed by the usurpation of Julius Caesar.* 1.228 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 plau∣sible to the Commons, Julius Caesar revived, to assure the Peo∣ple unto him, and to obtain their compliance with his usur∣pation. 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,* 1.229 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 afflict∣ed, 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,* 1.230 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 cau∣sa, quae nulla est obligatio, cùm deficiat voluntas ejus; qui se obligavit cum aliquo praesupposito, deficiente veritate dicti prae∣suppositi: Jus supposititium lex improbat. Moreover if a Law, al∣though 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 ad∣vancement of evil designs, and the strengthening of a perni∣cious faction? In a stipulation or promise, although, for the making of it there was just cause,* 1.231 sed nunc nullam causam ido∣neam 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 da∣tum 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,* 1.232 vel non habuerunt effectum, re∣vocatur 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 con∣tracts 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.* 1.233 Exceptio doli accomodatur ei qui aliter obligatus est quam convenisset, licet alioquin subtili∣tate juris obstrictus esset, nihilominus repellit agentem ex stipula∣tu, ctiamsi nulla sit ab isto adhibita machinatio, dum tamen ipsares in se dolum habeat. And yet not every deceit, nor eve∣ry 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 im∣mediate 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 opini∣ons amongst them. As in all grants and releases, fraud is al∣wayes presumed to be excepted, so shall they not extend unto that which the party granting or releasing may justly be presu∣med to have not had thought, either in specie or in genere;

non ad inopiata & incognita extenditur dispositio,* 1.234 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 bri∣bery and corruption, per sordes & turpitudinem ipso jure nulla est, although the Law saith, interest Reipublicae non convelli re∣rum judicatarum authoritatem; quia rebus judicatis stat status Reipublicae. Neither shall a Judicial decree prejudice one un∣der age,* 1.235 neither the Church if any of the legal solemnities in∣joyned by law are wanting, for dolus reipsa praesumitur inesse. Or if such decree be surreptitiously gotten, then no propriety or right doth pass thereby from the Minor or Church, but still they may have their action real or personal, non tantum in per∣sonam sed in rem ipsam. Pacta contra jus Reipublicae non valent, & hoc ad Ecclesiam trahi debere, quae in jure semper comparatur Reipublicae, nam jus publicum, quod ad statum rei Romanae spectat, etiam in sacris & sacerdotibus consistit. The interpreters of the Law say, Ecclesia, Respublica, & minores circumventi vel lapsi in integrum restituuntur; ergo & Princeps; for above all, the law is most favourable unto the Prince. His Patents, Char∣ters and Grants according to common intendment, and the usual clause inserted, are to proceed from him ex mero motu, & certa scientia. All his Grants and contracts, are bonae fidei,* 1.236 rather then stricti juris, and ought alwayes to be interpreted, ex bono & aquo. He hath many singular priviledges by the Civil law, and by the Common law of England. He is not de∣privable of remedy against undue forms; as he can do no wrong, so shall he receive no prejudice through the defects in Legal forms. The inserting or addition of any words or clauses pre∣vail not against him, when there is cause to presume, that he was ignorant or deceived. There ought not to be with any man, but there must not be with him a striving, saevâ praero∣gativâ verborum contra juris sententiam, nec rei gestae verita∣tem ulla scripturâ mutari, as in the Roman law. If there are legal and strong presumptions (praesumptiones juris & de jure, quae pro liquida probatione habentur) that his grant did not pro∣ceed from his certain knowledge and meer motion, but was

surreptitiously gotten, no words prevail, but the more force∣able they are,* 1.237 the more fraud they carry with them: Ʋbi a∣bundantior est Cautela, evidentior fraus praesumitur: & quod quis ita cautè facit, ne fraudem fecisse videatur, major & peri∣culosior fraus ex eo praesumitur: Clausulae & cautiones insolitae, ipsum actum magis suspectum faeciunt:* 1.238 licet abundans Cautela non nocet, tamen quod dubitationis causae tollendae videtur poni, si sit insolitum, suspicionem inducit, & contractum simulatum ar∣guit. Injustice, the more it hath of the shew of legality, the more mischief it worketh. That lye is the worst, saith Quin∣tilian, which seemeth to come nearest unto the truth. Nulla major pestis est humano generi & justitiae,* 1.239 quam eorum, qui cùm maximè fallum, id agunt ut boni viri esse videantur. This clause of certain Knowledge, doth not work effectually, nisi circa ea quae Princeps praesumitur scire, prout sunt ea quae in jure consistunt, secus circa ea quae in facto consistunt, de quibus saepe praesumitur ignorantia ejus.* 1.240 Neither can that other force∣able clause of meer motion hinder a just exception, and be a barr from making deceit appear, which deceit may proceed vel ex re ipsa, vel ex parte impetrantis, quando ex suggestione ejus obtinetur. Et cum emanaverit ad supplicationem supplicantis, censetur Papa vel Rex aliquis se fundasse super narrata, & si nar∣rata non verificantur,* 1.241 gratia, confirmatio, vel rescriptum corruit. Yet notwithstanding a man may be said to grant of his own proper and meire motion, although he accepteth the petition of the party, when he is not moved to grant, only because the other desired it, but of a willingness also, and bounty in himselfe.* 1.242 In the Imperiall Law it doth often occur nos amo∣ventes quicquid surreptitia impetratio, furtiva deprecatio, vel potentia alicujus elicuit. Ʋbi literas impetrant à nobis per frau∣dem vel malitiam,* 1.243 veritate occultata, vel suggesta falsitate. If those acts are void or voidable by Law, which are defective in respect of the form, or in respect of the indirect manner or means used for the obtaining them, as force, fraud, false suggestions, or concealing a truth necessary to be known: ubi mendacium reperiatur, sive in facti, sive in tacendi fraude, those acts also are undoubtedly void, in the matter and subject, which are utilitati publicae adversa, vel juri communi; and such are those which are against the just and ancient rights of

the Crown, against the fundamentall Laws, and the just rights and liberties of the subjects,* 1.244 for such are against the common peace and weal-publick. Nec pactum, nec jusjurandum à jure communi remotum, servandum est: Jusjurandum contra vim & authoritatem juris, nullius est momenti. But a Law is of greater concernment, then either the contracts of private men, or the grants and ordinary Charters of a Prince. If equity be wanting to a Law, the vigor and life of it is wanting: Legum parens est aequitas:* 1.245 in omnibus, maximè in jure spectanda est aequi∣tas. Our Lawyers sinde in their books, that when an act of Par∣liament, is against common reason, or common equity, or cannot be executed without doing wrong, the common Law doth controwl that act and doth adjudge it void, agreeable to that rule given by the Interpreters of the Civil and Canon Law, statutum potius interpretandum ut nihil operetur, quàm ut ini∣quitatem contineat. And yet notwithstanding all this that hath been said, some of our Lawyers delivered their opinion, being required by the King, that this Statute for continuation of the Parliament during the pleasure of both Houses was not void in Law; although by that Law the King was almost laid aside, or used but as a cypher, and little account made of his negative voyce in Parliament, in respect of their new usurped power to make Ordinances; so as the Parliament was changed from being the great Councel of the King, and became as the Roman and Venetian Senate; and they abused that power also of sit∣ing during their pleasure, and so made a forfeiture thereof, if it could have been lawfully granted unto them. Thus con∣trary to the intention of both King and People, and contrary to the reasons on which their rights and liberties are grounded, and contrary to the fundamental Laws of the Kingdom, and contrary to the office and duty of those elected members, and to the nature and quality of all delegated power and authority, Procurators, Deputies or Representatives, became masters of all, and perpetual Dictators, and did work all their iniquity by a Law.

There is another way of fraud used to circumvent Princes, which is to observe an opportunity offered them by occasion of some necessities and straits, into which Princes often fall. Many learned men affirme, that all bindings and tyes of Kings,

although by vertue of a Law, upon the onely advantage taken of their necessities and straits in their affairs, maketh the breach of that Law justifiable, inasmuch as any constrained assent, is never reputed a Royal assent, neither a durable assent. A∣mongst many examples there is one of our glorious King Edward the third, in or about the fifteenth year of his reign, who went roundly to worke in such case, and voided certain things for∣merly granted by himselfe in Parliament, alleadging that those things by him granted were contrary to his oath, and the rights of his Crown, which he granted not of his free will, but that he dissembled at that time, to avoid those eminent dangers which would have ensued upon his denial. Yet may we not approve Machiavils doctrine,* 1.246 that Princes may without dis∣honour break their faith, when the observation thereof turneth against themselves, or the cause which urged them to promise doth cease; albeit mans assent or denyal is feeble and defective, when he is surrounded with inextricable difficulties, and oppres∣sed with violent perturbations, and then to take an advantage thereof, is neither fair nor firm: for when strong and violent perturbations and affections have possessed the mind, all Laws allow them for just causes of qualifications of offences, and mitigation of punishment in most cases:* 1.247 Non est facile inter mag∣na mala non desipere, & quid mirum est, animos inter dolorem & metum oberrasse? They who seeke to hold Princes, or other men to the strict observation of promises, drawn by the ad∣vantage taken of their necessities and distresse, can never have any sure hold of such promises, neither of their affections. It will never dye in the Romans hearts,* 1.248 but will alwayes be fresh in memory, whatsoever shame the yielding unto their present necessity shall brand them with. Princes have, or at least they take unto themselves a larger scope and latitude, then other men can, or may, when as the freedome of their will is straight∣ned by any coaction or necessity, and upon reason of State do they proceed, more then upon rules of Law, or axioms of Philosophie,* 1.249 and may sometimes do that justifiably, which private men may not, non potest non nimium esse privatis, quod Principi satis est. Howsoever Princes shall not be tyed, when other men are freed from those stipulations, contracts and conditions, quae laedunt pietatem, existimationem, & verecundiam

eorum; & generaliter contra bonos mores sunt, quia nec talia fa∣cere posse, credendum est: Id possumus quod jure possumus: Paria sunt impossibilia & turpia. A Prince when he is injuri∣ed or damnified, may, as the Schoolmen say, in his defence, or in vindication of his reputation (which doth much sup∣port his authority) act in a different manner, and proceed to a higher measure and degree then private men; for the injuries done unto him, and the damages sustained by him, much dif∣fer from those of other mens, both in quality and extent: Ʋt gravius peccatur in personam magis Deo conjunctam,* 1.250 sive ratio officii sive virtutis spectetur; sic quantò aliqua injuria in plures redundat, tantò gravior est, ut est ea quae fit in Regem, qui gerit Per∣sonam totius multitudinis, & sic redundat in injuriam totius. But Princes, as well as others, are obliged to the observation of their promises and contracts by natural equity:* 1.251 Pacta con∣venta, naturali aequitate rata sunt, quae non sunt dolo malo facta, nec contra leges. Faith is expected more fully to be performed by Princes; Exuberantior fides ab iis requiritur: variatio, & inconstantia in Principe maximè reprobatur; debet esse immo∣bilis sicut lapis angularis, & sicut Polus in Calo. And there∣fore it is most dishonourable in a Prince, aliquem speciem juris fraudi imponere, aut fraudes & captiunculas miscere,* 1.252 syllabas & apices aucupari, quod leguleorum est; for which cavillations and carping at words; two glorious Princes, Ferdinand of Spain, and Charles the fifth his Grand-son, did suffer in their reputation, and so did Lewis the twelfth King of France, quod non Principibus sed leguleis dignas verborum ac pactorum inter∣pretationes afferrent: notam infamiae is incurrit, qui ed astutè in∣terpretari voluerit. The Emperour Justinian gave amongst his Laws two good rules for Princes, the one concerning the ob∣servation of their own contracts, Imperialibus contractibus vim legum obtinentibus: the other for observing their Laws, digna vox est Majestatis regnantis, Principem profiteri se legibus al∣ligatum esse; de authoritate juris pendet nostra authoritas.* 1.253 For a Prince by breaking his faith, and not governing his People according to his Lawes draweth upon himself hatred or con∣tempt, or both; either of them are most effectual means to rend in funder the Pillars of his authority, and the sinnews of his Government, and when either of these have possessed the

minds of men,* 1.254 novae libertatis avidi, cupiditate libertatis incen∣si, they are seldome removed by any art or industry; and then all his actions good or bad, shall have one and the same interpretation:* 1.255 Inviso semel Imperio, seu benè, seu malè facta premunt. Machiavil doth boldly tell Princes, that the same hour they begin to lose their State and Authority, when they begin to violate and undervalue the antient institutions, Laws and Customes, under which they and their ancestors have lived long and happily;* 1.256 Imperii omnis vis in consensu obedientium est.

All Lawes Humane and Divine are against violent acquisi∣tions, except in a just war, how just soever the cause be. For in a lawful war there is jus hostium & fas armorum,* 1.257 and he who is taken prisoner in such war is a lawfull captive, not he who is taken by Pirats,* 1.258 thieves, rebels, or in a civil war; in civilibus dissentionibus non sunt jura captivitatum & Postlimi∣nii: Quae rapta sunt bello civili, dominis, si extent, restituen∣da sunt, qui bello civili se non immiscuerunt. Things gotten by thieves, latrocinio subrepta usucapi non posse, no title doth accrue unto him into whose hands soever they come: non mul∣tum intersit quoad periculum animae, an quis abstulerit rem per vim, ac sciens prudensque rem retinuerit, per vim ablatam ab alio; quia interdictum unde vi, sequitur quemcunque possesso∣rem, for,* 1.259 malae fidei emptor, in vitium venditoris succedit: Possessioni violentae insistentes, vim continuo exercere dicuntur. Time which weareth out all things, will not wipe out that im∣pression and canker, and raise a just title unto things gotten by robbery and rapine.* 1.260 Perpetuo persecutio rerum vi ablata∣rum, rei subreptae aeterna authoritas esto: And this in respect of a double obstacle, vitium in re seu ex re, & vitium ex per∣sona, which cannot be purged, and a way opened to prescri∣ption,* 1.261 untill that which was thus violently gotten, return a∣gain into the hand and possession of the owner, or his lawful successor. So odious doth the Law render violent taking, that if the thing perish in the hand of him who committed the vio∣lence, by chance and without his fault, and that in probabi∣lity it would have perished, if it had been returned to the owner again,* 1.262 yet the violent taker is still liable, etiamsi sine culpa ejus amissa res sit, aestimationem tamen illius rei per inter∣dictum

restituere debeat, quia ex ipso tempore delicti plu•• quàm frustrator debitor constitutus est: periculum rei ad eum indistin∣ctè pertinet; licet involuntarium, si habeat suum ortum ex vo∣luntario, censetur pro voluntario. Moreover he who keepeth one under unjust and illegal captivity, can gain nothing of him, who during that time can grant him nothing; for he who offereth violence to his Debtor, to get what is his due, loseth his debt, and falleth into the compass of the Law Ju∣lia de vi for his farther punishment:* 1.263 Si quis rem violenter in∣vaserit, si dominus sit, rem amittit, quam abstulit; sin aliena res erat; non solum eam reddit ei qui rapinam passus est, verum ipsius rei aestimationem. Si vinxeris hominem liberum,* 1.264 eum te possidere non puto, multò minùs per eum res ejus à te possidebun∣tur; neque enim natura rerum patitur, ut per eum aliquid pos∣sidere possumus, quem civiliter in mea potestate non habeo.* 1.265 He who hath cast a man in prison, ut aliquid ei extorqueret, quicquid ob hanc causam factum est nullius est momenti:* 1.266 Timer vinculo∣rum restitutionem parit: si quis dedit aliquid, vel se obliga∣vit, ubi in furto, adulterio, vel alio flagitio deprehensus erat, timuit ille mortem vel vincula. But those promises, contracts and transactions made in prison, between the Creditor and Debtor, cannot be said to be void or voidable by Law, as done out of fear, because he is detained in prison; for impri∣sonment is ordained for Debtors, and therefore the Debtor is presumed to draw it justly upon himself, and if he made a promise or contract out of fear, hunc sibi metum ipse infert.* 1.267 Promises and contracts made through fear of an unlawful re∣straint are void in law, which fear is not cleared and taken off, untill he be restored unto his full liberty, and the cause of his fear taken away; for until then, it is still presumed, that this fear had its influence upon all his actions, although they seem∣ed voluntary: Eadem causa metus manente,* 1.268 purgari per tempo∣ris intervallum metus non praesumitur, nec per ullos actus pur∣gatur, nisi tales sint, ex quibus nulla alia probabilis praesumptio capi possit quam purgationis metus. What is a just and probable fear, is a question of fact, rather then of Law, although questi∣nos of fact oftentimes draw after them questions of Law. So as in this of fear, as in that other of fraud before mentioned, the

Judge is to determine, after due proofs and consideration had, of the quality of the persons,* 1.269 and other circumstances. The Law in general saith, that fear is mentis trepidatio, instantis vel futuri periculi ob causam; And that a just fear, is timor ma∣joris malitatis, ut timor mortis, vel cruciatus corporis, and doth express few cases of a just fear. I find this to be one cause, when a man seeth or heareth armed men come towards him, and flyeth for fear,* 1.270 it is presumed he was expelled by force and arms, si possessio fuit ab his armatis occupata: but ano∣ther Law saith, sufficit terror armorum to make a forcible eje∣ction; Is qui metu turbae perterritus, si fugerit, videtur vi dejectus esse: Imo si homines armatos venientes extimuerit, & ita profugerit, licet nemo ingressus fuerit, vi dejectus videtur; quia in metu non consideratur eventus, sed justa causa timoris: & ii qui coetum & concursum fecerunt, vel homines ad hoc accom∣modaverunt, tenentur de vi publicâ.

All this may sufficiently serve to justify the King and his par∣ty in leaving White-Hal and the Parliament, after they had been often assayled by a tumultuous rout, having not power to suppresse them, and those that had, did incite them, and made their advantage by them, qui crimen,* 1.271 cum potest emen∣dare, non corrigit, ipse committit: & aeque dignumesse ponâ, qui ab alio admotâ vi, ad suum lucrum utitur, ac eum qui vim adhibet. Insomuch as this clamorous and tumultuous rout, were like that seditious assembly at Rome, who required the Senate,* 1.272 rather in threatning, then by way of supplication, and stood about the Curia, as if they would be Judges or mo∣derators 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 disord∣ers 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,* 1.273 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 ulcisci∣mur, 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, & palàm. Men in authority draw guilt upon themselves, by omit∣ting their duty in preventing and punishing offences, especially publickly committed: Qui non prohibet, jubet,* 1.274 & mandare videtur: qui potest prohibere, & patitur peccare, vires submi∣nistrat andaciae: Vox est in jure Canonico frequentissima,* 1.275 non ca∣rere scrupulo societatis, & consentionis occultae qui manifesto cri∣mini 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 bond∣man could not obtain his freedome, which the law doth fa∣vour, although the Master did at that time seem willing,* 1.276 Qui coactus à Populo manumiserit servum suum, quamvis volunta∣tem suam accommodaverit, & mentitus sit, tamen servus non erit liber,* 1.277 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.* 1.278 Praesumitur de injusta ejus e∣lectione, qui per clamorem & tumultum est electus. Much more ought we to refrain the condemning of any man, by the accla∣mations 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.* 1.279 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,* 1.280 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 Rebel∣lion, or guilty of Treason, the worst of all other Delinquents in all respects, for the Law saith, Per mortem crimen corum non extinguitur,* 1.281 sed post mortem id crimen instaurari solet, & consiscantur eorum substantia & bona; post contractum perdu∣ellionis crimen donationes factae non valent. Those who are in Rebellion, qui hostili animo adversus Rempublicam vel Princi∣pem animati sunt, are greater enemies to their Countrey then Pirats who are reputed common enemies, and may be de∣stroyed by any man, being put out of all protection by the Law of Nations, ipso jure diffidati sunt; for they being vio∣lators of all Lawes, can have no benefit by any Law; they have not jura belli,* 1.282 captivitatis & Postliminii, due unto just ene∣mies: licitum est navigia, bona, & res naufragatas corum sur∣ripere, & sic ab iis qui sunt nobis aut Christiani nominis inimici. And so a notorious and declared Rebel ought not to have pro∣tection 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 defen∣dat. Talis rebellis in persona sua potest impunè occidi, & bo∣na ejus occupantihus concedi: In r••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 for∣mer times a man outlawed for Felony,* 1.283 might have been put to death by any man, nam lupinum caput gerit à die ut legati∣onis suae. And yet regularly and by Law, nec quenquam sce∣lestum & 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 likewise publick and notorious Robbers and Invaders,* 1.284 and such as run from their Colours and Captains in time of War. cunctis adversus latrenes publicos, desertoresque militiae, jus ex∣ercendae publicae ultionis pro quiete communi indultum est, ut non modo defendendi se, sed ulciscendi causa propter publicam utili∣tatem: 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 per∣turbatioue rerum temporibus potius parere quam moribus, and the Law agreeth with it also, quia latro manifestus vel seditio praerupta, factioque cruenta moram non recipiant.* 1.285 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,* 1.286 and the like was said of the Hollanders some years before: For what Peace and transaction is that,* 1.287 saith Ci∣cero, 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.* 1.288 If the King and Common-wealth recover again their former e∣state, after a rebellion, although upon hard conditions, yet the Kings condition and those in rebellion will prove after∣wards very different and unequal; for whatsoever they got by armes, they lose in the time of Peace,* 1.289 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 unwill∣ing

to submit, or trust unto any accord, or assurance given them. The old saying doth stick in their minds, he who draw∣eth 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,* 1.290 qui pacem petunt, inermes postulare, & de pace agere debent, was the course holden by the Romans with those who were not their subjects:* 1.291 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 rebel∣lion, for the obtaining of Peace, the most inestimable blessing upon a nation, and so necessary, that Cicero saith, a most un∣equall 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.* 1.292 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 neg∣lect just and necessary severity, neither by immoderate and un∣seasonable 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 bleed∣ing and festering, and cause new maladies to increase and mul∣tiply.* 1.293 Multo felicius est & laudabilius, suis aliquando etiam immeritis ignoscere, quam in suos meritò vindicari. It is ob∣served 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.* 1.294 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,* 1.295 quorum arrogantiam patientià & mó∣des••••â vincere arbitramur, ferociorès rèddamus, & priorem fe∣rendo

injuriam, invitas novam. Cupiditas istorum hominum, aliquid tradendo iis, non restringitur, sedinflammatur; & quicquid concesseris initio, ad ulteriùs penetrandum sit gradus.* 1.296 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 them∣selves 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 fundament∣al Laws, and liberties of the People, and raisers of war against the King and the People. Although such Counsellors and Mi∣nisters may be in part guilty of some of this, and therefore de∣serve 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 descrip∣tion of high treason, and would appear contrary to the under∣standing 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 en∣deavours 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:* 1.297 Non omnis resisten∣tia armis facta adversus Judiciarii decreti execution••m, neecum cives inter se tumultuantur, & sit tantum partium & saclio∣num certamen, dicitur crimen perduellionis & laesae majestatis, sedubi aliqui desiciunt ab his quorum sub Imperio sunt; vel cum quid comra salutem & maj••statem Imperii machinatur,* 1.298 & in exitium Reipublicae contenditur. Ins••iciendum sit quid agitur principaliter: voluntas & propositum distinguunt maleficia.* 1.299 Sta∣tutum de turbante Pacem, imelligitur de eo qui actum simpli∣citer facit ad turbandam Pacem, non si ex actu turbatio pacis sequitur, dicunt Dectores. It is the will and the purpose that

doth distinguish offences, not the act onely, or the event: fraudis interpretatio semper in jure civili non ex eventu dun∣taxat,* 1.300 sedex consilio quoque desideratur: fraudem, eventum habuisse, necesse est, & consilium praecessisse fraudem. We may not imitate those Emperours who did bring into the com∣pass of Treason what they list, and were therefore noted with infamy: addito crimine Majestatis,* 1.301 quod tùm omnium accu∣sationum complementum erat; cuncta quaestione Majestatis ex∣crcita:* 1.302 Erat unicum crimen corum, qui crimine vacabant. Sed crimen Majestatis non a Judicibus in occasionem, ob principis Majestatem habendum esse, sed in veritate, non arripienda quae∣vis occasio ad adulandum Principem, nisi re∣vera quis reus sit.* 1.303 Although the agree∣ments and transactions made between a Prince and his Subjects in arms against him are void in Law, yet for the peace and welfare of the people, which is the supream Law, they are often confirmed and con∣tinue in force; so for the same reason, divers Acts and Or∣dinances made by and under a Usurped power are observed and continued. Those judicial Acts in Courts of Judicature in private mens Causes are held valid, after the Tyranny is removed, and the Common-wealth reduced into the former estate,* 1.304 and this is so, potius ex bono & aequo, quam concesso jure, quia publicè interest rerum judicatarum, non convelli authorita∣tem; status Reipublicae rebus judicatis maximè continetur: for if the judicial Acts should be disannulled, peace would al∣wayes be disturbed, and the common right of men destroyed. Therefore in many cases, neither the personal defects, nei∣ther the want of a lawful calling in the Minister, Judge or Magistrate, shall prejudice mens rights, and deprive others of the benefit of their usurped actions and authority. Episcopus licet excommunicatus, si non fuerit declaratus excommunicatus, & protalihabitus, gesta ab eo sustinentur. Qui ab haereticis baptizatiessent in nomine Trinitatis, Catholici non rebatizarent. Placuit Ecclesiae Catholicae, dicit Augustinus, ne in ipsis haere∣ticis baptisma commune rescindere: Essectus Sacramentales non excluduntur, propter culpam conserentis Sacramentum, ubi ig∣noramter vel ex necessitate, vel in forma Ecclesia recipi∣tur.* 1.305

There are many acts of necessity held in force, although done contrary to those formalities, and to the strictness by positive Laws prescribed, and the acts al∣lowed, although the persons are by Law disabled who did act. Clodius was contra∣ry to the Roman law made a Tribune; and Barbarius a bond-man, contrary to the Law, and to the intention of all, through ignorance of his condition, was made Praetor, yet the acts done by virtue of their office were held firm,* 1.306 propter utilitatem eorum qui apud eos egerunt, tamen aliud sit Praetorem esse, aliud Praetu∣râ fungi: non suit Barbarius ita factus aut liber, aut Praetor, sed acta apud cum confirmantur, propter u••ilitatem aut quietis causam.* 1.307 Common errour although it doth not create or con∣firm right, yet doth it often give force and virtue to the a∣ctions of those men who are solemnly, although erroneously elected for the preservation of peace and mens rights: Much is tolerated of common and publick errour in favour of the Supream authority and common good, and the right of parti∣cular men; ita ut tria concurrant, communis error,* 1.308 Superioris authoritas, publica utilitas: Our Saviour did bid them ob∣serve and do as the Scribes and Pharisees required of them, who, he said, did sit in Moses chair,* 1.309 for the lawful Priests and Levites were not then in being. But it was not the common errour, say the Interpreters of the Law, that made this Barbarius a bond-slave a Praetor: non error simplex, nee publica utilitas simpl x, sed voluntas,* 1.310 quia à populo erca∣tus crat, qui etiam servo cum honorem dare poterat. Com∣munis error praestat causam validitati actus, & excusat à prnâ: & authoritas superioris licet erretur in jure, tamen cau∣sat bonam fidem: error non dat jurisdictionem, nee facit jus, licet justam excusationis causam praebeat. So favourable to private and innocent men were the Athenians, that they paid them the monies which the Tyrants had borrowed of them upon the pub∣lick faith, after they had expelled those Tyrants and reduced the State. Thus when the King of Naples fled, and lest his King∣dome to the French King Charles the eighth, who had compel∣led the Treasurers and others debters, to the King of Naples, to

pay unto him or to his soldiers all those monies due unto the King of Naples;* 1.311 it was adjudged by the supream Court of Na∣ples, that the King of Naples being returned and repossessed should allow of it and discharge them: si Questores regni, in belli civilis ardore, aut urgente tyrannide, aut legitimis hostibus invadentibus, pecuniam publicam numcrare coguntur, illud ac∣ceptoserre Respub. debeat.

But as for those acts of the publick interest, and are publici juris, they are for the most part of them reputed void, being made and done by and under a ••yrannical and usurped power; as the raising of taxes and impositions, the granting of Patents and Charters of Crown-lands, and offices and honours, the making of Laws and ordinances, especially in derogation of the ancient Laws and customes. Irritae sunt ordinationes, be∣nesiciorum collationes, & Ecclesiasticarum rerum alienationes ab Octaviano & Guidone Haeresiarchis factas: illus vero qui ju∣ramentum sponte de teneudo Schismate praestiterunt, à sacris crdi∣nibus & dignitatibus manere suspensos decernimus.* 1.312 The Canons and decrees made during that great Schisme in the Church, when there were three Popes at one time, immediatly before the election of Martin the fifth, were made void by the Councel of Constance, nisi ad fidem & benos mores pertinerem: but some other acts and decrees of those three Popes Competitors were allowed and ratified, for preservation of the Peace of the Church, quod jure hactenus ambiguo, fraudi cuiquam esse, non conveniret. Our acts of Parliament in the first of Edward the fourth, declared all mens private acts saved, &c. excepting those who claimed by grants and patents of Henry the fourth, Henry the fifth, and Henry the sixth. And the like voidance de∣clared of those grants and patents of things belonging to the Crown made by Richard the third, called Kings in fact and not in right. So also all letters patents made by the pretended Queen Jane were declared void in the first of Queen Mary,* 1.313 but the obligations, contracts and convayances between private persons, although dated under her name and usurped hile, were allowed. We have a late president in France in the time of Henry the fourth,* 1.314 to the same effect. When those of the league made war against him, and usurping his Regal authori∣ty, made many grants, patents and alienations to the preju∣dice

of his crown and dignity, they were declared void, but not the judgments given in Courts of Justice for particular mens interest, neither the acts and assurances passed between private persons, although they were made by and under that usurped authority, name and stile. Quae sunt publici juris & Corone, separatam habent à jure privato causam & rationem.* 1.315 Quae tempore Tyrannidis innovata sum, penitùs amiquata, cassata & recisa sunt; And many Constitutiors Imper•••• are extant of Justinian, declaring to be void such acts as passed under the power or Tyrants and Barbar••ans, as those gifts and alienations under the Tyrant Totilonus. But without any de∣claration, if a City be destroyed by a Tyrant, it is said by the Doctors of Law, to continue in being, by intendment of law, juris intell••ctu, & si restauretur, jura & privilegia quae dura∣bant in habitu, ad actum ipso jure reducuntur: As a Captive taken in war, when he is redeemed and returned home, he shall be in the same estate and condition, as he was before his captivity; jure Postliminii in omnem cansam suam residet, & veniet, in qua futurus esset, si captus non fuisset.* 1.316 A Tyrant and usurper doth preserve the rights of the just owners (as it is affirmed by the Lawyers,* 1.317 by his being in possession and use of them) from the prescription of others; quia retinetur jus alterius per male fidei possessorem.* 1.318 A neighbour City cannot prelcribe against another City during the time it is held un∣der captivity and Tyranny. In time of Ty∣ranny in the Common-wealth, or of Schism in the Church prescription doth not run against any man: Tempore schis∣matis non currit praescriptio; tempus Tyran∣nidis est tempus schismatis, quia scindit communionem: Non currere praescriptionem quamdiu Ecclesia crat viduata, vel ubi prae∣erat Episcopus Donatista, vel quo tempore hostes its locis incubucrunt quibus Ecclesiae constitutae sunt; si non suerit his querum in∣terest ••o tempore interrum pendae praescri∣ptionis bona copia. And so in time of a great War and Invasion, or of a raging Pestilence, prejudice doth

not accrew through lapse of time; during these times of Gods wrath, non valenti agere non currit praescriptio: Neither in such times the omission of diverse legal Solemnities and for∣malities, injoyned by positive Lawes for performance of sun∣dry acts, shall cause prejudice unto men: For all Lawes as well as promises and obligations, have this exception either expressed or implied, de vi majori, sen de vi divina, cui resisti non potest: If this be the proper and immediate cause which did hinder the performance of the act or office, it is a just impediment, otherwise, impedimentum non excusat, nisi tale sit,* 1.319 quod removeri minimè potuit, & quod causa fuit immedia∣ta, propter quam minimè praestitum fuerit, quod praestare debebat. Moreover, Cicero saith, that those laws and publick acts of State which passed under the tyrannical proscriptions and cruel com∣bustions raised by Sylla, as likewise those acts done after, when Julius Caesar usurped, were all void in law. Yet Quintilian saith, that Cicero was of opinion, that some acts and ordinances made by Sylla, ought to be observed, quia ita illis Legibus statum Reipublicae contineri, ut his dissolutis Respublica ipsa stare non potuit. For the endeavour to recover those goods which Sylla did confiscate, and were passed from man to man, made a disturbance of the peace of the Common-wealth: for such was the Course of the time, that those goods and lands thus taken by him,* 1.320 quamvis malè capta, jure tamen saith Flo∣rus; & eorum repetitionem non esse, licet malè capta, quia expedit Reipub. sedatae & compositae, ut vuluera rescindantur. Such were the Corruptions in that broken State by their seditions and Civil war, that what did pass for law, was not just: Fst justum aliqued legale, seu legitinum, quod non sit justum natu∣rale, seureale: & licet nullum sit aequum, quod non sit bonum, benè tamen rep ritur benum utile,* 1.321 quod non sit aequum: Plura sunt in jure quae habentur bona, licet non aequa: aequitate dero∣gatur propter publicam util••tatem, ob benum publici Status; quamquam aliqui dicum, om••e utile publico, idetiam sit aequum: sed propriè jus est ars boni & aequi,* 1.322 quia de justitiae fonte mana∣vit, & justum est objectum justitiae: sed à ratione juris aequi∣tatis benignitas distinguitur; jas ab aequitate, bonum & aequum à juris scripti ratione. As 〈◊〉〈◊〉 had amongst the Lawes of Na∣tions some that are not drawn from that which is properly

equal and just, sed usu exigente & humanis necessitatibus,* 1.323 ju∣ra quaedam agentibus constituta sunt. The like is to be said of some particular Lawes made in all ages in diverse Coun∣treys 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 Ʋsurpers.

I Come now from their seditious practises, which I leave to their repentance, unto the relation of some of their per∣nicious Principles, which seem to be their Fundamentals. To relate all those they sometime do mention, if it were posti∣ble, yet were it to little purpose; Errours are prone to mul∣tiplication; 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, Wit∣nesses 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 per∣formance on their part. If this doctrine should be received,

all the world would fall into consusion. Mutual and correla∣tive duties ought not thus easily and perniciously to be dis∣solved. It is against Christian Doctrine to requite evil with evil; neither doth the Lawes allow (as it doth in some ca∣ses) 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 pro∣tection, 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 regu∣larly,* 1.324 ubi contractus est perfectus, & obligatio nascitur ultro ci∣tróque, non rescinditur propter inobedientiam alterius partis; & quod in contraclibus innominatis non licet agere ad resolutionens contractus data contraventione unius partis, sed vel ad imple∣mentum contractus, vel ad interesse: The not performance of one party, doth not make void the contract, but the Law giv∣eth 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,* 1.325 quia siagula Capita conventionis insunt conventioni, per modum mutuae contemplationis, & correspectivè positae sunt, we d••bet contractus claudicare ex una parte, ex uno latere: & sidem frangenti, sidem non esse servandam: quod dictum reseren∣dum esse ad unam candemque conventionem, & ad ed quae una cademque sponsione comprehensa sunt, & in promissionibus qua∣rum

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 con∣tracts 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 du∣ty in the one, is no discharge unto the other. Those have little regard of the breach of Paternal, Filial, or Matrimoni∣al 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,* 1.326 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,* 1.327 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 peo∣ple, yet he gave them no licence in any case to depose, cha∣stise, 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,* 1.328 qualescunque tolerare, was the saying of a wise Heathen. Hereupon it is very aptly and wittily feigned, that when certain people desi∣red of Apollo,* 1.329 to be relolved whether it were lawful to kill a Prince a Tyrant, he with great indignation rejected their que∣stion, in respect the people were incomperent judges, and not ca∣pable 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 con∣fusions, 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 qua∣lity 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 in∣flicted by Lawes, saith he, quiatuti sunt Imperii potestate, they are safe by the power and virtue of Empire. The Interpre∣ters of the Civil and Canon Lawes, in explaining that in the Imperial Law,* 1.330 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, quàm legibus vivere: Et qui leges facit pari Majestate legi∣bus obtemperare debet. Non posse quemquam qui minoris est au∣thoritatis, 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 par∣te praejudicium ullum successoribus suis generare, pari potesta∣te imo eâdem post cum functuris, cùm non habet par in parem im∣perium. The ten Tribes which fell from their King Rehobo∣am, and chose Jeroboam, we find were justly condemned for their Rebellion, because they perverted the order, and viola∣ted the power established by God in falling from the house of David.* 1.331 The Prophet sheweth what they were, Ephraim compasseth me with lyes, and the house of Israel with deceit, but JƲDAH 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 pro∣geny of David; and all the other Tribes which revolted to Ieroboam, and sorsook their lawful Soveraign for being over∣burdened with taxes, what got they by it? they lost their Re∣ligion (which we have seen in our time to go after the loss of allegeance) and inthralled themselves under far greater ex∣actions, 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,* 1.332 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,* 1.333 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,* 1.334 qui ita obluct∣antur, & de ordine mundi malè existimant, & emendare mal∣lent 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 them∣selves. He who resisteth the powers,* 1.335 resisteth the ordinance of God, saith Saint Paul: Those who resist Goverment are presump∣tuous and selfe willed, saith Saint Peter; these filthy dreamers di∣spise 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 un∣to his allegeance by the divine, so is he by the Laws of Nature and Nations;* 1.336 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 alle∣geance is due to our Soveraigne, which is a vain dream; for there is a natural allegeance, as there is a natural obligation ex∣pressed in divers cases in Law: naturâ aquum; obligati natu∣raliter; obligationes quae naturalem praestationem habent: obli∣gatio naturalis quod vincnlo aequitatis, vinculo juris naturalis sustinetur: is natura debet quod jure gentium dare oportet: & sic natura libertus obsequium patrono debet; cùm naturali ob∣ligatione, seu ratione honor bujusmodi personis deb••••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 ju∣ra sunt immutabilia, nec jure gentium tolli possunt, nec Senatus authoritate commutari. The supream Laws of nature are im∣mutable, as Religio erga Deum; & ut Patriae & Parentibus

parcamus: And herein is included our allegeance to our Sove∣ratgne, as it is likewile in the sift Commandment of the Deca∣logue, by the judgment of all Divines. There are other Laws of nature of an inferior rank and degree, not so much con∣cerning 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,* 1.337 restramed and altered: libertas naturali jure continetur, & dominatio ex jure gentium imro∣ducta 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,* 1.338 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 vin∣culum; sed tunc jus naturae & naturalis ratio non mutatur in se, sed causa subjectiva seu materialis mutatur, vel circum∣stantiae 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.* 1.339 Jus civile neque in totum à jure naturali vel g mium recedit, neque per omnia ci servit: acci∣demia juris naturalis & divini, ut sunt circumstantiae persona∣rum, temporum & locorum, mutabilia sunt, manente vt ac vir∣tute istorum jurium immutabili, & hee tunc producere pessunt necessariam dispensationem, limitationem, sen declarationem, dicunt Doctores.* 1.340 Declarari humana lege potest jus naturale, tolli non potest, limitart & declarari in multis potest, tam per in∣terpretationem inter jus & aequitatem interpositam,* 1.341 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,* 1.342 sed tempera non pariter cunt: & multa quae honesta videmur esse natura, temperibus sunt in∣honesta.

As a King cannot be discharged of his obligation to his Peo∣ple,

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 obligati∣on between the Soveraign and his natural Subjects by birth: Dominus in his omnibus sideli suo vicem reddere debet.* 1.343 Ea∣dem side tenetur Dominus subdito suo, sicut subditus Domino A man may change his habitation, but not renounce his coun∣trey, 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 re∣nunciari 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 Sove∣raign, or of sidelity to our Lord, maketh not the Subject or vassal, but it tyeth him more straightly. An Oath is not al∣wayes 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 sub∣stantia feudi: Feudatarius est obnoxius praestando juramento side∣litatis, quod licet remittitur, non tamen remittitur fides & ho∣minium; sed onus subeundi juramenti,* 1.344 quia fides est de substan∣tia non juramentum: hoc juramentum non est obligationis in∣troductorium, sed confirmatorium, & obligationis efficacioris gra∣tia: 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, ac∣cording to priority, and proximity of blood, by the Lawes of the Countrey and of Nations. This Oath Kings ought re∣ligiously 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 cea∣seth not, if he fail in performance. The Oath and the So∣lemniqes of Coronation maketh not the Prince, nor the ne∣glect 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:* 1.345 Couronnement & Sacre des Roys doivent prins, & intendus pur declaration, on acceptation & submissionau Roy designè de Dieu, qui la con∣servè & fait le plus proche de la Couronne, non pour aucun droit qux subjects de doner la Royaume hereditarie per leurs voix ou Election;* 1.346 But when the Prince is by Election; Electio facit Imperatorem, sed prius suit Imperator, quàm coronam accipicbat à Papâ, & gladium ab Altari. Inaugurantur Reges in Ecclesia, ubi preces pro iis fiant; potestatem iis à solo Deo tradi, & idcir∣co Coronam eos accipere ab Episcopo, gladium ab Altari. Sa∣muel anointed Saul with oyle, and said, it is because the Lord hath anointed thee to be Captain over his inheritance. Zadok the priest anointed Solomon, and they blew the Trumpet, and the People said, God save the King; Anointing at the Inau∣guration drew with it a most reverend regard of the Prince. The name of the Lords Anointed in the Scripture and elsewhere, doth often occur: They interpret that of Daniel, the Anointed shal be taken away of Hircanus, from whom the Kingdom of the Jews was transferred, and unto whom the original of Anointing is referred.

The Cities in France which would not acknowledge Henry the fourth for their King, who succeeded rightly according to the Laws of that Kingdome, but continued in the former re∣bellion raised against his Predecessor, they could not help themselves by saying that Henry the fourth was not Crowned,

and that they never acknowledged him for their King, and therefore they were not to be reputed Rebells: but they were answered by learned men, that they being Subjects by their birth, and continuing in their original sin, they added actual: Neither did Bodins distinction help his Country-men,* 1.347 so much as it disgraced him; in saying, there was a difference between a universal defection and falling away of the People, and a Re∣bellion; a distinction without a difference, but upon better con∣sideration, he said, neminem patriam repudiare posse,* 1.348 nec sub∣ditus potest imperio sui Principis seipsum eximere: Neither can they raise an excuse for rebellion in a Monarchy out of that in the Roman Law, that in a Civil war they who ingage on either side, are not in the condition of forraign enemies;* 1.349 Cum cives inter se contendunt, scissà in duas partes Republicà, A∣ristocraticâ vel Populari, captos hinc inde non fieri servos, quia non contra Imperii majestatem machinantur, nec in exitium Reipub. contenditur; ubi non sit tale bellum, quod Antonius gerebat, quod Casar vocabat non partium certamen aqualis ju∣ris,* 1.350 sed defectionem à populo Romano. Thus when the title to the Crown is in controversy, it may seem hard to punish those, who upon no improbable opinion,* 1.351 nor inclination to rebellion, joyn with one side; and believe they are not right∣ly Subjects to him, against whom they bear armes; as it hap∣pened in the war between the houses of York and Lancaster, and in that war between Casar and Pompey, multi dubitabant quid optimum esset, multi quid expediret, multi quid deceret, nonnulli quid liceret. For although the Law saith, leges quae constringunt hominum vitas, intelligi ab omnibus debent, nec eas ignorare quemquam, nec dissimulare permittimus, tamen aliter est ubi jus dubium & intricatum est. The Canonists say that when a divine Law, is not clear and certain, but hath divers interpretations, & cujus varii sunt intellectus, the Pope may dispense with it as he seeth cause. But men have no more po∣wer to renounce their allegeance then their liberty and free∣dome, which is inestimable, or to binde themselves to a corpo∣ral punishment, or from marriage: Quae onerandae libertatis causâ facta sunt, non valent: Nemo dominus est membrorum suorum. We cannot be bound by any covenants and conditions, by which jus libertatis nostrae, aut jus patriae nostrae laditur:

qui sui juris sit, tamen sui ipsius Dominus non sit: conditiones adjectae utilitati publicae adversae, remirtendae sunt: quae non à Patre, sed à genere, à rerum natura, à civitare tribunmur, ca manere incolumia: and many others the like in the Law. There is that which we cannot put from us, as there is that which none can take from us. Our allegeance is individual and perpetual.* 1.352 We may allow no less to the Parent of our Country, then the ••omans did to the Patrons of them who were manu∣missed and made free; liberto semper sancta persona Patroni videri debet: and although the Patron were a person condemned by the Law, tamen salva sunt jura liberis Patroni & consuc∣tum obsequium iis semper praestandum esse à libertis.* 1.353 Our allegeance as it is not so weak, so it is not so narrow, but it is of larger ex∣tent, then these men would have it to be: for there is a local Allegeance in respect of habitation and residence in another Coun∣trey, due from Aliens and strangers unto the Prince of the Countrey, wherein they reside, and have protection, and enjoy the freedome of commerce, although they be not there naturalized, and made Denisons.

And here we may take an occasion to ad∣monish all Strangers, Subjects to any Prince or State in league with our King, who assist and associate themselves with our Kings subjects in actual rebellion, for such may and ought to be punished as Rebels by either Prince, if they have no war∣rant for it from their own Soveraign: quia hi ladunt Majesta∣tem sui Principis in laedendo Confaederatumejus,* 1.354 nam confoedera∣tio sit tantae potentiae ut de duobus unum faciat. Satis est ad Pe∣regrinum obligandum, quod 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 seàant in corpus aliquod, isti volunt teneri cum corpore, ergo & pati debent.* 1.355 Christiani non siunt scrvi nisi militent, aut auxilium praebeant Turcis contra Christianos, tunc non Christianorum, sed insideltum quibus se adjunxerunt numero habendi sunt. Such can∣not 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,* 1.356 qui nobis, aut quibus nos publicè bellum decernimus, caeteri latrones aut praedones sunt. These strangers thus offending can claim no pri∣viledge, 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,* 1.357 si quid manu commiscrint. Alterius Provinciae rens apud cos ac∣cusatur & 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, can∣not 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 no∣bis confaederatis animadvertimus:* 1.358 Forum sortiuntur foedera∣ti in Civitate foederatâ; and with this agreeth the Laws of na∣tions, and the Law of England, for if an alien living in Eng∣land, who is under the Protection of the King and the Law,* 1.359 commit treason, his indictment shall be contra ligiantiae suae de∣bitum. 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 com∣bustion, and fall into any side, like birds of prey, without ei∣ther warrant from their Prince, or consideration of the just∣ness 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 par∣tie. 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 sub∣mit; 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,* 1.360 a strong Ass couching down between two burthens, who did see that rest was good, and that the Land was pleasant, and bow∣ed his shoulders to bear, and became a servant unto Tribute.* 1.361 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 pesti∣lence. 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 & super∣gressa est:* 1.362

— Paterque natos nova bella moventes

Ad penam pulchra prolibertate vocabat: Filius sine seelere proditorem Patriae,* 1.363 licet Pater suus sit, occidit: In omni tempore bellum gerendum sit pro defensione sua, & Patriae & legum Patriae, ne videatur homo deum tema∣re. Some learned men affirme; Tyrannum qui per vim domi∣natur, nullum habens jus ad illius Reipub. regimen, posse à privato occidt,* 1.364 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,* 1.365 permittamus. Vidimus quanta obedientia domi∣nus tetrum & serocem illum tyrannum Nebuchadnezzar coli vo∣luerit, non alia ratione, nisi quia regnum obtinebat: id autem ipsum erat coelesti decreto, in solium regni impositum esse, ac in regiam majestatem assumptum.* 1.366 Hoc nobis si assiduè ob oculos obversetur, codem decreto constitui etiam nequissimos Reges, quo Regum authoritas statuitur; nunquam in animo; seditiosae co∣gitationes 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 ren∣der themselves, and obey the enemy upon the best conditions that can be gotten;* 1.367 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 for∣mer, 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 usurpa∣tion of any fellow Subject of theirs oppressed, if they submit unto that yoak, and swear whatsoever is required of them, and do not use all means possible to recover their liberty, and the rights of their Countrey.* 1.368 Qui hostilis irruptionis necessitate transductus est, ad proprias terras festinare se debere, cum hoc solùm requirendum est, utrum cum hostibus voluntate fuerit, an coactus; si sua voluntate apud hostes mansit, non est ei jus post∣liminii. By this doctrine that Subjects under the yoak of any Tyrant and Usurper, as well as of a foraign just enemy, ought quietly to submit, and take new oaths contrary to their allegeance; our allegeance is a thing left at large, and made ambulatory, rebellion is cherished, usurpers incouraged, and men quieted from seeking which way soever the wheel turn∣eth, to shake of any usurped and tyrannical power, by any means lawful or probable. But those Lawyers are the greater deceivers, who affirm that all the Lawes and Statutes, which do mention the King, and are made for his benefit, and for the security of him and his Subjects, as that Statute also made by Henry the seventh for the security of Subjects, when two are in competition for the Crown, ought to be interpreted for him, whosoever hath gotten the supream power, and that by his assuming the name of King, which some of them absurdly held necessary, men ought to submit, although he had no more title then Jobn of Leiden: And thus may one usurper, if he

can, drive out another, find the Laws as beneficial for him as his sword, and make them serve for any usurper of a Crown, as well as for any Competitor for a Crown, how good soever his title be. These pernicious Law-sophisters that excellent rule in Law doth controul, Nulla juris ratio aut aequitatis benignitas patitur,* 1.369 ut quae salubritèr proutilitate hominum in∣troducuntur, ea nos duriori interpretatione contra ipsorum com∣modum producamus ad severitatem: nec inducta ad unum effe∣ctum debent contrariaoperari: quod ob gratiam alicujus concedi∣tur, non est in ejus dispendium retorquendum; nec jura singu∣laria producenda sunt ad similia, aut ad consequentiam, licet jus commune trahitur ad consequentiam ex majoritate, aut pari∣tate rationis, ut dicunt Interpretes juris. These cannot blame Machiavil for saying, that Princes may break their faith, to preserve themselves from danger or damage, seeing they teach Subjects to wave their allegeance, and break their oaths for prosit and quietnesse: Neither can they condemn those Jesuits, for saying the Pope can absolve Subjects from their oath of allegeance, if Subjects can finde cause and means to absolve themselves from that their duty & oaths, or when they take new oaths and ingagements, help themselves by equivocation and mental reservation. Such new oaths and ingagements do avail nothing, unless it be to procure perjury, and the more hatred on those who procured them to violate their conscience: With whatsoever cautel or mental reservation, we swear, protest or ingage, yet God taketh it, as he which giveth the oath doth understand it: and if he who sweareth, meaneth deceit∣fully, the interpretation cannot be made according to his fraudulent intention, but according to his meaning who re∣quired it, or else according to the proper and common accep∣tation and sence of the words, especially being given by a Judge or Magistrate: fallit jurantem juratio facta per artem, a cautelous oath deceiveth none so much as he that taketh it deceitfully; But when the words are ambiguous, and may receive different significations, as he may worthily be blamed for taking such oaths, so he that doth tender it willingly, ought not to receive any benefit thereby; nomini dolus suus lucrosus sit, aut esse debeat,* 1.370 nec dolus suus cuiquam per occasionem juris prosit: Pactionem obscuram & ambiguam iis nocere in quorum potestate

••uit legem apertiùs conscribere,* 1.371 & interpretationem contra eum potius faciendam esse. Omnis oratio obscura & ambigua tendi∣cula est, quae ei qui tetendit potius fraudi esse debeat: sed inter∣rogationi obscurae vel ambigua, quis respondere non tenetur, nisi declaretur. Juramentum tunc intelligendum est secundum com∣munem significationem verborum, si utrique sint in dolo; si à neutro intervenit dolus, tunc interpretandum est secundum in∣tellectum utriusque, si verba possunt utrique intellectui adaptari: si ab altero tantum sit dolus, tunc intelligendum est secundum eum qui rectè intelligit: In contractibus & stipulationibus contra venditorem & stipulantem interpretandum est.* 1.372 But in two contrary or incompatible Oathes taken by one man, if the former were not unlawful, but of things indifferent in themselves, neither good nor evil, the second Oath contrary to the former is in∣valid, and can hardly escape the taint of perjury; but if the first Oath was for the performance of a necessary and Moral duty, required by Di∣vine and Humane lawes, the second Oath being contrary to the former, although extorted by fear, is clearly void, and most commonly impious. When we are obliged to the perfor∣mance of a duty or act, we as much as in us lyeth are obliged to withstand and remove all impediments, which may proba∣bly hinder us in the performance thereof: for in a stipulation or promise, not to hinder an act, is regularly implyed an en∣deavour to have it performed; In illa stipulatione,* 1.373 per te non fieri, non hec significatur, nihil te facturum, quo minus facere possis, sed curaturum ut facere possis: & qui spondet dolum ma∣lum abesse, abfuturúmve esse, non simplex abnutivum spondet,* 1.374 sed curaturum se ut dolus malus absit: Qui non facit quod fa∣cere debet, videtur facere adversus ad quod tenetur, quia non facit. In a promise and contract, the nature and quality there∣of, & quid actum erat inter partes, & quid necessariò subintel∣ligitur, although express words are wanting, must chiefly be taken into consideration. The Divines say, that in the sixth Commandment, Thou shalt not kill, is contained our duty, in preserving the life of our neighbour, as far as our wit and po∣wer extendeth; quia imperantur contraria officia, dum mala

fieri vetantur. Therefore where we are restrained by our Oath of Allegeance, either from the hindrance of any good to our Soveraign, or from doing any act, or conniving at any mans act to the prejudice of his Person, Crown and dignity, it is necessarily implyed, that we are thereby injoyned to use our utmost endeavour for the preservation and advancement, of both his Person and Dignity. In the Vassals Oath of sidelity to his Lord, amongst other, these words are, non sufficit absti∣nere à malo,* 1.375 nisi fiat quod bonum est, ne aliter censeatur perfidus & perjurus.

CHAP. XII. Of those who onely accept of Offices and Imployments under Tyrants and usurpers.

THere is another sort of these men with whom we incoun∣ter, and we may joyn them to the former, although they are not so subtil, yet do they help to support the cause either wilfully, or through indiscretion, or want of courage or con∣science, men not passive, but of actual compliance; accessa∣ries they are, although searce guilty of their greater impie∣ties, nor of the beginning of the Rebellion; yet they being instruments in several services and imployments, serve for the strengthning of the arm of the wicked, and so do they commu∣nicate in the iniquity, & have fellowship in their works of dark∣ness: These are they who accept of Offices and places ministerial, and of Judicature and of Magistracy, under the masters of the mischief, and do act by and under their authority: These under the pretence of doing good to the People, in their seve∣ral callings and offices, joyn in deluding the People, under a shew or shadow of Justice and liberty: libertatem quùm restitui videretur interceptam esse:* 1.376 simulachra libertatis, seu vestigia morientis libertatis, vel praestigiae versuti juris; non vera jnstitia, & viva moribus, sed picta coloribus. By these means they endeavour to effect the settlement and continuation

of the iniquity and Tyranny, in seeking to content the Peo∣ple with specious representations and fictions of Justice, and equity like that which theeves are constrained to use among themselves for preservation of their society; and this is to worke in the People an affection or quiet submission, to the usurped Government, and to draw away their affections and cogitations from their Lawful Soveraigne, unto the upholding of that Government, built upon such soundation, that under it, Peace neither from God nor man can ever be expected; nei∣ther the admittance of men into any places of trust or honour, who are true lovers of the rights and liberties of their Country, or eminent for vertue or magnanimity.* 1.377 Boni quam mali sus∣pectiores, semperqu•• talibus hominibus aliena virtus formidolosa est. Those men who are imployed under such Goverment, find nothing but confusion, they being made instruments only to delude the People,* 1.378 quia nimo unquam Imperium slagitio quaesi∣tum, bonis artibus exercuit. Both the Masters and the Mi∣nisters walk on in darkness,* 1.379 for all the foundations of the earth are out of course. If the foundations (Religion and Justice) be destroyed, what can the righteous do?* 1.380 How can that State ever subsist, ubi Justitia, aequi••as, industria redditae non sint? ubi vis legibus, judiciis gravitas, magistratibus authoritas, se∣natui Majestas restitutae non sint? And although they often pretend reformation in matters of Religion and justice, and make some attempts, it is but ad faciendum populum: and al∣though they have really such intention of reformation, yet God having raised such men, as a scourge of his vengeance up∣on a Nation, it is not to be expected, that he will imploy or blefs them in such good works, at leastwise untill these men repent, and his wrath be taken away. These men who are thus assisting,* 1.381 may consider of the counsel that Cato gave to his son, not to deal in publick affairs when Caesar had usurped, in respect that upright dealing, the corruptions of the time, and in the State would not endure it, and in time-pleasing, he could not be an honest man. Of these men complying and as∣sisting, the Emperour saith in his law,* 1.382 nisi istorum manus in subsidium praestò fuissent, certè nonita promptè slagitium perpe∣trassent, qui majorem operam rei perpetrandae adhibuerunt. These men are not unlike those who afford aid and receptacle unto

thieves,* 1.383 qui in pari causa habendi sunt, for they are as useful and necessary, as receivers and concealers: Qui opem fert, qui ministerium at que adjutorium praebet, si sciens accommodaverit, furti tenetur, licet nullum ejus consilium principaliter ad furtum faciendum interve∣nerit. Non sunt à culpâ liberi nec à poena debent esse immunes, qui licet fuerunt illius machinationis ignari, tamen iis quos sicarios esse sciebant, in sarcinis custodiendis ministeri∣um praebuerunt.* 1.384 S. Paul did acknowledge his consent to the death of S. Stephen, by his standing by and keeping the raiment of those who murthered that blessed Mar∣tyr. Moreover some of those who were guilty of the beginning of the rebellion, are not guilty of so much evill, as some who come since in as accessaries after the fact, who now do that which the first men did abhor; and those also, who only act in the offices of trust, and deal not in the State affairs, cannot escape the falling within the compass of abetting, upholding, and continuing the rebellion, by administring Justice, and helping those to the benefit of the Laws, who continue will∣ful in their rebellion, and therefore ought to have protection and benefit from no Law, as enemies to their King and Coun∣try: Frustra implorat Ecclesiae aut Legis auxilium qui com∣mittit in Legem vel Ecclesiam. Cicero said of Cethegus and Lentulus,* 1.385 Legem Semproniam quae de Civibus Romanis constituta est, ad eos qui essent Reipub. hostes non pertinere. The Roman Senate when the people of Rome were quietly fallen under the Tyranny of the Decemviri, and rested so with contentment, the Senate rather desired an addition of more injuries, then to ease them of any burthens, that so having in detestation their present thraldom into which their own errour had led them, they might fall to a longing desire of the former Government under Consuls, and wish the old world were come again.

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 successour of the Crown.

Such is the inseparable relation between the King and his Subjects, that as they cannot renounce or withdraw their alle∣geance from their Soveraigne,* 1.386 Principis aeterna autoritas in sub∣ditos; so cannot Kings alienate their Kingdomes or any part thereof: although they are not restrained by positive Laws, yet are they by a universal Law, not made, but risen up in the foundation of all Kingdomes, as the Lawyers say,* 1.387 generali omnium Regnorum lege, cum ipsis regnis nata, & quasi jure Gentium: Lex fundamentalis, immutabilis, cum ipsâ rerum naturâ unà viget, consenescit & interiit. Rex qui in sua Coronatione juravit jura Regni sui & honorem Coronae illibata servare; postea nihil agere censetur, si quae jura bonáve Regni sui alienaret,* 1.388 etiamsi jusjurandum interposuerit de nunquam revocanda alienatione; liberum tamen ei esse quandoque revocare; praevalere prius juramentum quod fuit legitimum posteriori quod illegitimum est. The relation between a King and Subjects maketh a union and reciprocation so strong, that there can be no admittance of a separation. Correlatum cuilibet relato respondet; uno posi∣to ponitur alterum: in correlativis idem judicium, and what is disposed in one, is so in the other, when there is the same rea∣son for either: And so cannot a King and Parliament and all the Powers in earth bar the lawful Successor from the rights of Soveraignty, the individual and sacred rights of the Crown;* 1.389 neither bind, nor limit the succession. Henry the Cardinal, af∣terwards King of Portugal, having no issue, and seeing diverse

in competition for the Crown, granted a Commission to some of his own Subjects to determine the right of Succession after his death, and unto some others he gave another Commissi∣on, to govern the Kingdome after his death, until the right of the succession was determined. Both these Commissions with the opinions of his own Lawyers for their justification, were soon after his death over-ruled by the sword, and were also held void by Law, because he sought to raise a body in his Kingdome without a head, and would praire successorem suum, and raign after his death;* 1.390 for by his death his jurisdiction and authority was determined, and his Commissions void: Pote∣stas delegata morte delegantis finitur: No Magistrates can give Commissions for acting any thing after their death, neither upon a day which falleth after they are out of their authority, whereupon it is declared, quòd qualibet dispositio censetur facta, eo tempore in quod confertur,* 1.391 nee valet quae in id tempus procedit, quo res non erat amplius disponentis; quia paria sunt, aliquid fieri tempore inhabili & prohibito, vel tempore habili & concesso, & conferri in tempore inhabili & prohibito. The Commission for determining the Succession, made the Portugals who were parties Judges, for they were of the material part, concerning which the controversie was: and whatsoever they determined was void;* 1.392 non paretur jus dicenti, si supra suam jurisdictionem jus dicere velit, & nemo plus juris ad alium transferre potest, quam ipse habet. The Kings Commissions and Mandates, as also all Offices, unless it be those which by law are excepted, are void by his death, especially those which are granted in vim justitiae administrandae: Mandatum Principis, in vim justi∣tiae datum,* 1.393 morte Principis expirat, secus, si in vim gratiae. Sed gratia data ad beneplacitum concedentis, per ejus obitum, per quem ipsius beneplacitum omnino extingnitur, eo ipso expirat. And if he cannot bind himself, then not his Successors, nisi in casibus à jure & consuetudine permissis, & sunt de consuetudine Principatus, & de natura officii Regii, as the Lawyers say. By this we raise a doubt, concerning the validity of many matri∣monial contracts made by Princes, whereby they endeavour to bind or alter the succession of the Crown, which is not ru∣led by those lawes which are for private mens descent and inhe∣ritance. Whether use and common practise may justifie these

contracts of Princes I will not dispute.* 1.394 Pa∣cta & Statuta de mutua successione in casu deficientium liberorum masculorum inter Principes, Comites, Barones Imperii in usu esse frequenti, & consuetudine hominum memo∣riam excedente confirmata valere. We find not the like Laws or customes in other king∣domes, except the Law Salick in France; for the common opi∣nion is, that Statuta, excludentia faeminas ex haeredationibus o∣diosa sunt: Pactum in dotali instrumento, ut filia contenta sit dote, & nullum ad Paterna bona regressum haberet,* 1.395 juris autori∣tate impr••batur. Et pactum de non succedendo jure civili impro∣batur. Si Pater instrumento dotali comprehendit, filiam ita do∣tem accepisse, ne quid aliud ex haereditate Patris speraret; eam scripturam jus successionis non mutasse constitit; privatorum enim cautionem legum autoritate non censcri; leges non mutare.* 1.396 By these contracts Princes please themselves for a time, out of a desire to advance some designs, and afterwards repentance and dissentions do often follow. Unto this may we add, those ac∣cords and transactions between Princes, for exchange and alie∣nation of some part of their dominions, which come by de∣scent from their Ancestors.

These alienations have commonly the like success as the for∣mer; yet are they much to be favoured, when they pass be∣tween Princes upon equal tearms, and are for the procuring of peace and ending of controversies, the consent of the Subjects on both parts concurring: nam Dominus sine voluntate vasalli feudum alienare non potest; sic Princeps subditos suos alienare non potest, quia non tantum praedia sua & domini jus,* 1.397 sed sic in∣genui homines alienantur, quorum commercium nullum est; sed propriè tamen non Populus alienatur, sed jus perpetuum eos re∣gendi; non hominum liberorum fit alienatio,* 1.398 sed jus quod in ho∣mines competit transcribitur. The Provinces and Cities of France declared unto their King John Prisoner in England to Edward the third, as did likewise those of Gasconie when they were to be turned over to the allegeance of John of Gaunt,* 1.399 that without their free consent being freemen born, and not slaves, they could not be made Subjects to another Prince. And thus

when Francis the first was pressed to the surrender of certain territories,* 1.400 according to the agreement between him and the Emperour Charles the fift, the Court of Parliament of Paris did declare, as before, that the King could not do it; Regium summumque apud Gallos dominatum, Regia jura, minui, di∣vidique, non licere, non posse. Rex Johannis Angliae, aut alius Rex, alienatione regnorum suorum, vel servitute imposita, non possunt jus posterorum laedere, nee subditos suos ad alterius Principis obsequium reducere. Quae natura sua dominio nostro exempta sunt,* 1.401 in obligationem deduci non possunt.

By this that hath been said, and by that which followeth, it will appear how absurdly some men of more learning joyn with our adversaries, in affirming that the People have an original right in them to reform, limit and remove their King; and that although the Regal power be setled in the Stock & Family, yet so as the stock and linage itselfe is onely chosen, and not all and every branch To prove this wild Chimera, some of their Champions, the better to make way for deposing of princes, bring divers selected places of scripture, joyning unto them strange and false inserences and interpretations, with as feeble arguments deduced; rather to prove themselves seeds-men of sedition, then sincere Patrons for the Peoples liberty. They re∣gard not their often being learnedly confuted, but still they will go on with arguments drawn à facto ad jus, à dicto secundum quid ad dictum simpliciter, raising general conclusions, drawn from some singular and extraordinary examples, not war∣rantable for our imitation, although serving excellently for our instruction. It was never found in any Author, nor heard of till of late, that any People did choose a King, and his linage and race to rule over them, and did or could reserve power to themselves to take, or resuse, such of his posterity and race, as they pleased at any time. Without any mention of original right, or reservation of power in the People, the wife man saith, that power is given unto Kings of the Lord, and soveraignty from the Highest,* 1.402 who will try their works, and search out their Counsels. And another man of much prudence, and a great favorour of the Peoples rights and liberties, saith, that God had therefore reserved Kings for the greatest punishment, because none in earth had power over them.* 1.403 We finde in

our ancient Law-books, Britton and Bracton,* 1.404 that the Kings jurisdiction is above all jurisdictions, and that from him all are derived; and so say the Civil Lawyers, omnis jurisdictio vel Principis esse, vel à Principe manasse. It doth not help our ad∣versaries, their affirming that Princes are appointed for the good of the People, which is true, neither their disputing, whether a Kingdome, be haereditas, jus, sunclio, ant possessio, and a King be proprietarius, or usufrucluarius onely. These busie Questionists serve to perplex mens judgments, and to per∣vert the truth, and are men, novandis rebus quam gerendis ap∣tiores. Kings are for the People, as the soule is created for the body, and the head for the members, to wit, in a superior de∣gree to command, but never to set the feet or the members a∣bove the Head. Kings were anciently called Pastores Populi, the Fathers and Husbands of their Countrey, Pater urbisque maritus: Romulus Rex, Parensque urbis Romanae.* 1.405 It is cer∣tain that Kings have a good estate of inheritance. Haeredit as est successio in universum jus quod defunctus habuit, and how can this be denyed of a Lawful successor in an hereditary Kingdome? Ad millesimum gradum extenditur regni successio,* 1.406 & in regno successivo, repraesentationi locus est in infinitum. In regnorum successione distingui debent regna quae pleno modo possidentur & in patrimonio sunt, ab his quae modum habendi accipiunt ex Populi consensu. This Royal succession doth differ from private mens successions, neither is it ruled by the subtilties and nice distincti∣ons of the Roman Laws, or the Law of the Fendes, neither by the municipal Laws and customes in several Countreys which concern private mens inheritance and succession; for as was said before, quae sunt publici juris & Coronae, separatam habent à jure privato causam & rationem.* 1.407 The Interpreters of the Law agree, that the Law Julia and Papia touching the estates and inheritances of men, doth not extend unto Kings,* 1.408 al∣though the words are general, which in Laws and Statutes sel dome or never do reach unto Kings: Princeps legibus solutus est, id est, lege Julia & Papia, non ab omnibus legibus; lex im∣perii solennibus juris, Imperatorem solverit: omnibus autem à nobis dictis Imperatoris excipiatur fortuna: Fruitur Princeps singularibus privilegiis, licet in multis casibus codem cum caeteris jureutatur: nihil tam proprium Imperii est, quàm legibus vivere:

decet enim tantae majestatis eas servare leges quibus ipse solutus esse videtur.* 1.409 The most learned affirme, Regnum non assimu∣lari simplici deminio, ut pater ex jure transmittendi regnum ad liberos, jure successionis Regiae; and that doth so appear by ma∣ny singular rights, that there doth competere Regi universale dominium terrae, which rights are the marks of universal do∣minion, and did spring up with the erecting of Kingdomes with∣out any concession of the People, or any other, although at the first the People did elect their King. Regi competere univer∣sale dominium terrae,* 1.410 satis liquet ex legibus de Thesauris, de iis qui moriuntur sine haeredibus, de spuriis jus legitimationis non habentibus à Rege, qui solus id conferre posset. Yet although it be said in the Law, omnia sunt Principis, it is qualified with this explication,* 1.411 omnia sunt Principis imperio, singulorum domi∣nio seu proprietate: omnia esse Principis, id est, fiscalia & domi∣nica sua sunt in suo patrimonio; haec sunt quasi propria Princi∣pis; omnia alia sunt propriè Principis imperio, singulorum domi∣nio:* 1.412 Res fiscales quasi propriè Principis sunt: Sed si omnia sunt Caesaris, quid erit Dei? It hath been often seen, that when the right of succession descended to the next Lawful heir, who hath been barred by former acts of Parliament, those acts were never held valid to deprive him and his heirs, whom the Law accounteth,* 1.413 successores juris, territorii, & jurisdictionis universalis, tam active quam passivè: & successio Imperii, non est sub jure Imperii. Proximior de sanguine Regio, non obstante quod crimen laesae majestatis commisisset, & esset indignus, potest tamen indilatè, & absque aliquo temporis intervallo Regiam Dignitatem assumere, & Rex vocari. King James in his book to his son admonisheth him never to defraud the nearest by right of succession, what conceit soever he had of his person who was the next: for Kingdomes are ever at Gods disposi∣tion, and in that case we are but life-renters, lying no more in the Kings, nor Peoples hands to dispossesse the righteous heir. All former defects are purged by the descent of the Crown; and this it seemeth all Princes and States who make leagues and contracts with Princes do acknowledge; otherwise they have been, and may hereafter be deceived, in making contracts with Princes, who are, and may be declared incapable to grant or receive any thing, by vertue of an act of Parliament, or by

any original or dormant power remaining in the People, or in any other. For thus should Princes have rather precariam possessionem, quam legitimum Imperium, whereby a multitude of endless quarrels would dayly arise at home and abroad, to the prejudice of mens right, and to the disturbance of the peace of Christendome. They who argue that a King cannot alienate his Kingdome, say, that Kingdomes are not in the full propriety and patrimony of the Prince, because liberi homines in commercio non sint, and they add also, that a Kingdome is not onely a succession hereditary, but a right also of primoge∣niture and proximity of blood, not as simply descending from the father or Ancester, sed sit etiam successio virtute legis Coro∣nae, seu consuetudinis inveteratae & immutabilis regnorum.* 1.414 Ag∣nati Regum, non tanquam agnati ad successionem vocantur; causam, titulum & jus successionis,* 1.415 non à Rege novissimè defun∣cto accipiunt; non jure haereditario, sed jure sanguinis & stirpis, & consuctudinis regni. Frequens in regnis, est successio non hae∣reditaria, sedlinealis dicitur, non jus illud quod repraesentationis di∣citur, sed jus in posteros ex primo rege venientes transiens ordine certo. By an argument drawn from these distinctions in the Royal succession, Henry the Second of France signified to the Swit∣zers, that he was not bound to pay all the debts of his father, because he held his Scepter lege Regia, non simplicihaereditario jure: And so did Lewis the twelfth answer those who deman∣ded of him Artillery, lent to his Predecessour Charles the Eighth, that he was not the heir of Charles, but his Successour of the Crown. Quia in jus Regni duntaxat succedit, & quà ta∣lis successor sit, non obligatur contractibus praedecessoris sui, quia jus non accepit ab co qui proxime decessit: Tamen hi con∣tractus obligant successorem, si probabilem habeant rationem, quod in dubio ob regentium autoritatem praesumi debeat: nec res haec ad naturam negotiorum gestorum exigenda est, ut tum demum ratus sit habendus actus, si utiliter gestus sit: nam ad tales an∣gustias reipublicae Imperantem redigere,* 1.416 ipsi etiam Reipub. esset periculosum. Sed successores tenentur pro utiliter gestis, quia pro utilitèr gestis tempore tyrannidis tenetur dominus verus, & con∣tractus tum gesti valeant.* 1.417 Non admittenta est exceptio adver∣sus hos contractus qui sunt Regii; & successores tenen∣tur, si contractus sint ex natura & consuetudine Principatus.

Birth giveth right unto Soveraign dominion in all hereditary Kingdomes, which right is not holden as of the Patrimony of the People, but the King hath it as a Proprietor independent by the Royal Law,* 1.418 and inveterate custome of succession, which custome is an immutable Law, as in France; Mesdames filles de France, non par la Salique ley escritte pur les seuls sub∣jects, en sont perpetuelment excluses par costume & ley particula∣re de la maison de France: whether this Salick law extendeth to the succession of the Crown is a question, In terram Salicam mulieres ne succedant;* 1.419 terram Salicam, regnum, Franciamque interpretabuntur: Lex Salica cum Regno coepit; ad quam Fran∣ci non facti, sed nati, & educati; certissimum Franciae Palladi∣um: In hoc maximè introducta est haec successio Agnatica in Francia ne per Faeminarum matrimonia ad peregrinum sanguinem Imperium deveniret. In the great controversie concerning the Succession of the Crown of Portugal before mentioned, al∣though the Lawyers did much differ in their opinions upon the several titles of the pretenders to that Crown, and much per∣plexed themselves upon the distinctions inter jura proximitatis, repraesentationis & primogeniturae, yet they all agreed, that in∣asmuch as Portugal was gotten at first by conquest, and not by any election of the people, the people had no colour of right, so many being living of the blood-Royal. Neither was there any Law or custome for excluding the Prince of Parma one of the Competitors, in respect he was an alien born, or because his mother from whom his right came, the eldest sister dyed before her younger sister, the Dutchess of Braganza. The lawes of other Kingdomes, as the law of England, doth distin∣guish the rights of the Crown, jura regalia, jura Coronae, lex Coronae, 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,* 1.420 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 impedi∣ments removed by this regal right of succession.

CHAP. XIV. Of the Beginning and Continuation of Kingly Govern∣ment.

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.* 1.421 Servitus est naturalis, ratione utilitatis consequentis, scilicet quod quis rega∣tur à sapiente; & licet est contra primam naturae intentionem, est tamen secundùm naturam, juxta ejus secundam intentio∣nem: & ita est ordo naturalis in hominibus, ut serviant aliqui: Persona est domina v••l serva ratione naturae: Fst utilis servi∣tus, cùm improbis aufertur injuriarum licentia, & domiti se melius habebunt, quia indomiti deteriùs se habuerunt.* 1.422 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 distin∣ctionem, idque ratione naturali factum fuisse apparet ex eo,* 1.423 quod utile valdè Reipub. sit & societati humanae.* 1.424 And so Saint Au∣stin, Nullus natura in qua priùs Deus hominum condidit servus est hominis aut peccati; verum & poenalis servitus ca lege or∣dinatur;

qua naturalem ordinem conservari jubet, perturbarive vetat, quia si contra cam legem non fuisset factum, nihil esset p••nali servitute coercendum.* 1.425 Seeing therefore that the best and wisest men are, and ever were, the few∣est in number, and that the greater num∣ber are by the law of nature, and ought of necessity for the preservation of human so∣ciety 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† 1.426 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 dominati∣on or liberty. What power of domination can we find that God gave at first to his se∣lected 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 Patri∣archical, derivatively and ex traduce? We find in the first age of the world after the Floud mention made of Kings which ruled every where;* 1.427 and of the first war, wherein ma∣ny Kings were ingaged; and no mention of any other Govern∣ment then Regal.* 1.428 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 Sy∣cionorum,

Egyptiorum, Assyriorum, and before that time rose up Nimrod, saith he, & factum erat initium regni ejus Ba∣bylonici. 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 usurpati∣on 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;* 1.429 Aliud est injusta potestate justè velle uti, aliudest just â potestate injustè velle uti. Although Tyran∣ny did begin by Nimrod, yet Government and Magistracy proceeded not first from him: It was established by divine de∣cree before him. The government of the Fathers of the Fa∣milies 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 continua∣tion thereof, which reason had its operation amongst the hea∣thens; In the beginning were Kings,* 1.430 nam in terris nomen Imperii id primum fuit. But after equality and moderation were laid a∣side, and ambition & violence brake into Regal government, & domination and power prevailed, some People, postquam Regum pertaesum erat, after they were weary of Kings, as the Creten∣sians, Spartans, Athenians, governed themselves by their own laws, and not by Kings: some itching humour perad∣venture 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 servi∣tutem esse, centum pro uno dominos factos esse.* 1.431 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 dis∣order upon disorder followed, and the reason is given in sundry Chapters, because there was no King in Israel.* 1.432 This desire of changing Monarchy did possess but few People; generale quippè pactum est humanae societatis obedire Regi∣bus: 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 Histo∣ries: 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 immedi∣atè à Deo: Sic Pontisicts Electio sit ab hominibus, sed per∣sonae 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,* 1.433 and that Reges à Populo creati sunt, in quos suum transtulit Imperium ac potesta∣tem, & 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,* 1.434 sed per consensum ipsiusmet commu∣nitatis, 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 van∣quished 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 li∣mited and abolished, not only by positive laws, and continu∣ed customes, but by their own concession and grant; as the Romans granted all their supream authority to their Kings lege Regia,* 1.435 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.* 1.436 God who giveth victory in the day of battle,

doth thereby give domination and dominion over the van∣quished, and all that is theirs in a just and lawful war. Lex velut pactum commune est, quod bello capta capientium siunt:* 1.437 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 Peo∣ple.* 1.438

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:* 1.439 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 con∣trarius, 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,* 1.440 by an ancient and continued usage;* 1.441 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 privi∣ledges Regal, wrought and effected by the changes in times, and in the manners of men.* 1.442 All which per∣adventure 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, consue∣tudo clarigationis, seu jus dandi Represali∣as, 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 intempe∣rantia: for it is against natural equity, and the Rules of Law, that one should be pu∣nished for another: that the Father or Son should be punished the one for the other, or that a Subject should be delivered a ho∣stage for his Prince against his will: yet all this must be tolerated, as a calamity or pu∣nishment, falling on some men etsi sine cul∣pa, 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 pub∣lieo 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 Ro∣man 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:* 1.443 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,* 1.444 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,* 1.445 non jure Romano; sunt enim legum Nauticarum omnium Rhodiae vetustissimae. The Cartha∣ginians 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,* 1.446 ut contra foedus. The Romans gave a large commission unto Pompey against Pirates, with abso∣lute authority over all the sea-coasts, although there were many potent Princes within that compasse, who had juris∣diction or dominion upon their own coasts by law or ancient custome:* 1.447 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,* 1.448 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,* 1.449 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;* 1.450 & 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:* 1.451 Inveterata consuetudo pro lege haberi. Cicero saith, much of the Roman law more constat:* 1.452 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, fors en quelques Provinces par loix Romanes prins pour coustume:* 1.453 Consuetudines esse jus commune in Gallia, vel maxi∣ma ejus pars. But all customes are not binding, but such as are justè inductae & legitimè praescriptae: qui habent malam fi∣dem, 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, al∣though not continued to the tearm required for compleating thereof.* 1.454 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 derelicti∣one, cum immemoriali temporis possessione, dominia transferri, by the laws of nations, as the Doctors affirm, quia per usum temporis immemorialis ïnducitur prae∣sumptio 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,* 1.455 the possessi∣on of three hundred years, and Sulpitius the like against King Antiochus, and so others. Si jure civili excludantur actio∣nes privatae & civiles ligitima praescriptione;* 1.456 quid non etiam belli causae & actiones armatae, cum sit absurdum, ut nec post secula desit armorum & controversiarum bellicarum praetextus justus?* 1.457 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 inter∣ruption 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 cur∣riculo hujusmodi actionem evanescere,* 1.458 Romana Ecclesia gau∣dente 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,* 1.459 Episcopi Galliae se semper tutati sint ad∣versus hujusmodi conatus Curiae Papalis, praescriptione jurium & libertatum Gallican. The Roman Emperors, as we per∣ceive, 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.* 1.460 Bono publico usucapio vel praescriptio introducta est, ut aliquis esset finis litium, ne semper domi∣nia incerta essent: for it is against reason, as well as against Peace, which the laws do more favour then any mens par∣ticular loss, especially through their own carelesness, that no bounds should be set to mens sutes and claimes, but con∣troversies 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 So∣cieties 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 influ∣ence 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 them. As it was the case of the Romans when they came first from ruined Troy, and planted themselves in Italy. And so the Venetians, forced to forsake their habitations upon the firm land, and to plant themselves in those Marishes and little Islands in the Adri∣atick Sea, where Venice now standeth, there built and for∣tified themselves against those barbarous People, which over∣ran the noblest parts of Europe, against whom they could have no protection from the Roman Emperour, their Soveraign. In these respects they justly challenge that City, and the Sea with the Dominion thereof. And although it be farther gran∣ted, that a people in such case may choose any form of Go∣vernment:

And that a people, and commonalty also, have right to choose a King upon the failing of the Royal line; because Regal Right and Dominion, where there is none left to inherit it, neither head to rule over it, cometh to the body and com∣monalty for preservation 〈◊〉〈◊〉 human society: yet all this help∣eth not our adversaries. It cometh nothing to the proof, that all Kings hereditary hold their authority as derived from the people, and that it still remaineth habitually in the people, and that although Supream power be acknowledged to be in Kings, yet not so as to exclude the whole state of those Socie∣ties conjoyned, and bar the influence of that power, which they have originally over Kings. Neither can they draw good arguments, and especially general conclusions from singular and extraordinary events and examples, or from actions en∣forced for the safety of the People, which is the supream Law. Necessity often findeth a justifyable supply, upon the fayling of Gods own ordinances, expresly injoyned to be observed, if otherwise the most necessary duties would fail to be performed. Sed quae propter necessitatem recepta sunt,* 1.461 non debent in argu∣mentum trahi: Quòd ob gratiam alicujus concessa sunt, non debent ab aliis in exemplo produci: They cannot prove that in Elective Kingdomes, the People or Electors after they have once elected, do alwayes retain such influence of their power over their Kings, as that they may depose, limit or correct their Kings, unless their lawes have so provided. The Em∣perour Valentinian being requested by the Army to choose a Colleague, answered, it was in their power to advance him to the Imperial Throne, but now for ye to meddle in matters of State, it is improper: it belongeth to the Prince, as ye have all acknowledged, therefore henceforward do as ye are com∣manded. Authority rightly setled, is not easily removed, nei∣ther by the intermedling of others to be impeached. Those who have authority of Electing, and transferring power unto others, have, after those acts are consummated, no power to deal in any thing appertaining to that Power by them transfer∣red: Non est novum ut qui dominium non habeant,* 1.462 aliis jus & dominium praebeant, vel causam, facultatem, modum jus vel dominium acquirendi; ut creditor qui pignus habet, pignus ven∣dendo, causam dominii praestat quod ipse non habuit: So the

rules often fail, Qui constituit est major constituto; & nemo dat quod non habet; quod verum est quùm nec potentià habeat; sed det transferendo, conferendo; Episcopus sic det Sacer∣dotia, & Canonici Episcopatum, & Cardinales Papatum, quae nec proprietate, nec possessione habeant, dicunt Interpretes. When the Romans gave up their Supream power unto their Empe∣rour, no part of that power was ever held to be remaining in the people: Constituto Principe datum est ei jus,* 1.463 ut quod ille constituisset, ratum esset: Lege antiqua, quae Regia nuncupatur, omne jus omnisque potestas Populi Romani in Imperatoriam trans∣lata sunt potestatem. This power thus translated, was not a delegated power, aliud potestas delegata, aliud transfusa. This power transferred, remained as immutable, as the lawes of the Medes and Persians, or the sentence and decree of any Court of Judicature, which being once solemnly and defini∣tively pronounced, that Court cannot reverse,* 1.464 amplius corri∣gere sententiam suam non possit. And so in diverse other cases, non datur regressus.

If we cannot find by any law or reason, that the Romans, or any other People, who had in them the supream power, could after they had transferred this power to Kings, and elected them, reassume this power again, and when it doth please them de∣pose their Kings, or limit and restrain their power, by vertue of an habitual power still remaining in the People, as is supposed: then undoubtedly we can find no right in the People, or in any societies or communities of People, to depose, restrain or limit Kings of hereditary succession, especially those who have not their right from the People, but by Conquest, as in England. From such Kings of hereditary succession and right all jurisdicti∣ons do proceed, and in them reside, and unto them they re∣turn, say the Lawyers. Rex est lex animata, and his office and function is Indesinens Consulatus.* 1.465 All other rights and liberties how ancient soever, have been, as in other Kingdomes, at the will and mercy of the several Conquerors of our Island, the Romans, Saxons, Danes, Normans. Our rights and liberties contained in magna Charta, granted and confirmed by diverse Kings, after much effusion of blood, we, nor our Ancestors did, nor could ever claim, by vertue of any reservation made by the People or any others, when they were conquered, nei∣ther

by any original right inseparably inherent, and vested in the People, and from them derived. If we could hardly draw from our Kings the confirmation of our ancient just laws in force before the Norman Conquest, and with much difficulty and contestation obtain our former liberties often promised and granted by our Kings, and as often violated: we could not preserve any such original and inherent right unto any Supream power over our Kings as is imagined:* 1.466 Normanni ci∣to & breviter terram subdentes sibi, victis vitam, libertatem, leges antiquas Regni concesserunt.* 1.467 Willielmus Normannus dedit multis peregrinis, qui cum eo veniebant in Angliam, multas pos∣sessiones, Anglis in servitutem redactis, probrosum fuit vocari Anglicus: He gave to those who served him, terras & possessi∣ones Anglorum, ipsis expulsis, & modicum quod illis remane∣bat, sub jugo posuit servitutis. Although he granted our lawes and liberties in use before his time, yet he gave many Mannors and much land to strangers and Soldiers who came with him, and unto the Church, and kept much to himself as Domaines of his Crown, by which means many of the anti∣ent owners were dispossessed.* 1.468 The Conquerour did in his Charter and grant of some of the Antient lawes and liberties, lay his claim to the Crown, ex concessione sancti Edwardi, de∣victo Heraldo Rege, but no mention of any consent or right of the People. He did (as other Conquerors) sometimes seem to wave his title by Conquest, lest touching that string too hard, it would make a jar, and hinder all harmony. But his conces∣sions and confirmations of the ancient Lawes and liberties, proved for the most part but illusions.* 1.469 Some of our Histori∣ans affirm, that he changed most of the Lawes, and made us accept his own Norman Lawes and customes, delivered in the Norman language, a mark of servitude imposed by the Ro∣mans where they had conquered.* 1.470 He moulded the English customes to the manners of his own Countrey, and did for∣bear to grant the Lawes of holy King Edward,* 1.471 so often cal∣led for: yet at the suit of the Barons, the Laws of King Ed∣ward, correboratae & confirmatae erant, quia veneratae erant prae caeteris legibus per universam Angliam. And therefore our great Lawyer mentioned in our Law books, did speak with∣out book, in saying that the Conquerour came not to out

those who had just right and possessions, but those who held wrongfully to the disherison of the King and his Crown. He had more knowledge in points of Law, then he seemed to have of matters of fact, so long before his time. As we can∣not find anything, that can manifest this inherent and origi∣nal right of the People, so can we not find in any case any co∣lour of right in them, to justifie their deposing, limiting and chaftising of their King, as our Adversaries affirm, sa∣ving onely some matters of fact which they would have pass for Law, and according to their usual course, draw their arguments à facto ad jus.

Edward the second and Richard the second were charged in Parliament, for oppressing, spoiling, destroying and the like, and were deposed; yet those Parliaments did never rely upon, or mention the Peoples inherent and original right to justify their proceedings, neither much insisted upon the proof of those crimes objected against them, as causes sufficient to ground their most illegal and violent proceedings: Neither did they hold themselves sure, until they had by a conjuncture of fraud and force, drawn those Kings to a seeming willing resignation, acted in a form and solemnity abounding both in absurdity and horror. For if the power and authority of Kings ceaseth ipso facto, as our new men would have it, for oppressing spoiling, and destroying, so that they may be deposed by their Subjects; why was this power and right of the People, never claimed and declared in any Monarchy, when they had sharp disputes with their Kings, as we have had, for oppressing, spoiling and destroying; but alwayes we quieted ourselves with a present reformation of pressures and abuses, and with a new confirmation of magna Charta, which those Kings had no power and right to confirm and grant, if according to these mens doctrine, their power was determined ipso facto, and re∣turned to the People, and they or the Parliament in a condition to reassume and exercise it? If Subjects have no right, and very rarely or never attempted, to bar the next in succession, when the right of the Crown descended unto him for any per∣sonal defect or crime of his, or his Ancestors, or upon any former judgment or sentence given in any Court against him, before the right of succession fell unto him; they have less

colour of right to depose him after he is in possession, for any crime then committed: Turpius ejicitur quam non admit∣titur.

The old Doctors of law, of great credit in their times and since, could tell them, that it did belong to the Pope as Christs Vicar to compel rebellious Subjects to the obedience of their Soveraign by spiritual censures and excommunications, and that in the Pope was all the power to depose Princes; yet so as he ought not to proceed to the deposing of them, except in cases of the highest contumacy, and for the greatest causes, quae Rem∣pub. Christianam laederent; seeing it could not be done, but with a great and general Scandal, and with the perturbation of the publick peace. For by their opinion, the Emperour who is elected, could not, although with his free consent, resign unto the Electors, but into the hand of the Pope, in respect that a resignation is properly to be made unto him, who is Supe∣riour, and hath right judicially to hear and determine the cause,* 1.472 and compel the parties to the obedience of his decree: Renunciatio non tenet, nisi facta sit penes eum qui renunciantem invitum, causà cognitâ, judicialitèr destituere potuisset: neque sine licentia superioris officia seu beneficia accepta dimittere licet. Qui mandatum suscepit, deserere promissum officium non debet, alioquin quanti mandatoris intersit damnabitur: mandatum suscipere voluntatis, susceptum consummare necessitatis sit. But there are other later Doctors more bold, who affirm that a King for Tyranny may be removed by the Common-wealth, or compelled by the Popes spiritual power, quando à Divinis legibus rebellavit. Others say that he cannot be deprived of his power by the People, from whom he hath his power, nisi quando in Tyrannidem declinet, ob quam causam possit bellum justum contra eum geri: And they repute him to be a Tyrant qui in Repub. non jure principatur; cùm Princeps tendat ad bonum commune, Tyrannus ad proprium; ergo Tyrannus non est Princeps, & ideò perturbatio ejus regiminis non habet rationem seditionis, nisi forte quando sic inordinatè perturbatur Tyranni regimen, ut multitudo Subjecta majus detrimentum patiatur ex perturbatione consequenti, quam ex Tyranni regimine. And when they have declared a King to be a tyrant, potest in jus vocari â Republica, (unde habeat Regia potestas ortum suum)

rebus exigentibus; & si sanitatem respuat Principatu spoliari; neque ita in Principem jura Potestatis transtulit Respublica, ut non sibi majorem reservaverit potestatem.* 1.473 Here our adversaries joyn with some Doc∣tors of the Romish Church, for they find this doctrine as necessary for them to justify rebellion, and to depress the authority of Kings, as those Romish Doctors do to up∣hold the Popes Spiritual power, which is, as they say, ex institutione speciali pendente à divina voluntate Instituentis,* 1.474 quae ab inferioribus mutari non po∣test. But the Regal power they will not have to be ex institu∣tione 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 homi∣num communitate: and although both powers may be said to be of God, yet the Popes Spiritual power is of God imme∣diatly, 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 ex∣communicated 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 distincti∣ons, 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 Ty∣ranny and Apostacy; and to witness, accuse, define and judge thereof.* 1.475 To set a colour upon rebellion, they affirme that the People do but so transfer their power, as they still re∣tain

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 an∣cient 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,* 1.476 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 belong∣ing 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 de∣scendeth unto him, which giveth a new qualification to his na∣tural person, and life and vertue to his Office and function. His natural person est organicum instrumentum,* 1.477 personae ejus in∣tellectualis, publicae seu politicae. The power, office, dignity considered simply in it self, cum exclusione subjecti cui natura∣liter 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 per∣son, which giveth it life and vigor. In respect both of his na∣tural person and Politick capacity, the King is termed in Law, Lex loquens, Lex animata, and his authority and office, indesi∣nens Consulatus. Allegeance is therefore due unto his natural

person, to which his politick capacity, is as it were appropriat∣ed and incorporated: both of them give and receive vertue to and from each other. His natural Person,* 1.478 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:* 1.479 nec Regiam dignitatem, separatum quiddam extra administra∣tionem 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 ca∣pacity: 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 vir∣tue 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 lar∣gest 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 Prin∣ces 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 Sub∣jects. They ought to be peace-makers, which is one of the most glorious titles that can be given 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 accoun∣ted but as meer personal obligations, they mutually oblige, as they mutually benefit the Princes, their Successours and sub∣jects. 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.* 1.480 The mutual bene∣fit

of both Prince and People is conjoyned and involved: one neither can nor ought to take benefit by them, with the exclu∣ding of the other. When Henry the Third of France was dead, the League made by him with the Switzers did con∣tinue in force;* 1.481 and upon this reason, quia non tam cum Hen∣rico quam cum Corona Franciae contraxisse, quae nunquam inter∣moriatur; & 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 ma∣ny cases,* 1.482 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. Tenen∣tur successores, aut numquid, nihil est cautio ista toties usurpa∣ta in foederibus.* 1.483 Tenentur successores per has publicas Conven∣tiones quae non nomine proprio sed Reipub. incuntur, quae aequè re∣praesentatur 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 be∣nefit of their leagues, by their Subjects rebellion, who to re∣ceive any benefit by Leagues or Lawes, is contrary to the in∣tention of all who make them, and destructive to the Majesty and security of all Monarchies and States: Beneficium quod habeo propter te,* 1.484 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 red••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,* 1.485 those Leagues were de∣termined with the People of Rome: Although the league might be in force with, and for the benefit of the King expul∣sed and his Heirs and Successors;* 1.486 cum Rege initum foedus ma∣net, etiamsi Rex aut Successor regno à subditis sit pulsus: Jus enim Regni penes ipsum manet, utcunque possessionem amiserit. The Emperour Justinian answered the Vandals,* 1.487 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,* 1.488 We have made no league nor friend∣ship 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 a∣gainst 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,* 1.489 quanquam tunc ingentibus bellis labasceret Respub. non tamen datum erat Spartaco ut pacto in fidem recipe∣retur; non alia magis sua & Populi Romani contumelia. So the Emperour Tiberius was exceedingly offended at the pre∣sumption of Tacsarinas the great African Robber, for sending Ambassadors unto him:* 1.490 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 Arist•••• a••••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 Gibe∣lines) may send and receive Ambassadors; for they are not in the condition of Rebels; etsi pereas dissentiones Respublica lae∣ditur,* 1.491 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 ob∣liged 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 u∣sed 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 King∣dome did adhere,* 1.492 and declare for their King; like that saying of an Earl taken Prisoner at Bosworth field, who being de∣manded 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.* 1.493 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 Govern∣ment 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 detesta∣ble rebellion.* 1.494 Rex Regno pulsus, vel in carcere positus ab alte∣ro Rege, perdit possessionem quo ad ali••s Principes, sed non ex re∣bellion, subditorum suorum; & sic fuit responsum à Galliae Re∣ge Edwardo Angliae, cum de Regno expulsum ab Henrico Rege sibi regem non vi•••• 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 amise∣rit. 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 ma∣net idem corpus,* 1.495 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 & per∣sonae 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,* 1.496 res abesse videtur.* 1.497 The Roman Empire often changed in the form, the Empire re∣maining, 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,* 1.498 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,* 1.499 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 con∣quest,

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 suf∣fer those Cities which are of our association to remain free, if they continue so,* 1.500 as they were at the time when we made confederation with them.* 1.501 If Princes may have just cause to help the Subjects of an∣other 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 oppres∣sed by his subjects, and with much less en∣vie, and more honour. King Tarqui ••∣ing expelled Rome, fled unto King Porse∣na, and desiring his aid, advised him, not to let pass the new taken-up course of ex∣pelling Kings by their own subjects: adding also,* 1.502 that unless Kings would maintain the right of Kings with as much vigour, as subjects sought to advance their own liber∣ty, 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.* 1.503 Thus Darius vanqui∣shed 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.* 1.504 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 e∣states to the Treasury of Ardea:* 1.505 Proximis à tectis ignis de∣fenditur agrè: Paries cum proximus ardet, tunc tua res agitur

& licet aedes demoliri vicini, ne ad nos incendium veniat. The Romans would not suffer an increase of power by iniquity:* 1.506 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:* 1.507 Populum Romanum sociis defenden∣dis, 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.* 1.508 The Carthagini∣ans first passed into Cicily, to take part with one side in a Civil war, but they endeavoured to make a prey of both. For some∣times 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 con∣tend: as the Turk did in Hungarie, when they called for his assistance. And thus other Princes have dealt with the Itali∣ans, 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 Ge∣neral Quintius offered his assistance to the States of Greece,* 1.509 to destroy Nabis the Usurper of Sparta, lest the contagion thereof should spread farther, and take hold of the other Com∣mon-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 Ecclesi∣astical Government, which being once established in the Church, by the example thereof,* 1.510 the Politick and civil State should be drawn to the like. And therefore they will have an actual po∣wer to be joyntly in the People with their Soveraign in making of Lawes, which they call their Legislative power in Parlia∣ment, so as they would leave unto the King little or no po∣wer with his negative voice, and would weaken all his rights in Parliament, but especially his right of dissolving Parlia∣ments. They would make him inferiour to the Roman Tri∣bunes of the people;* 1.511 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 autho∣rity of the other Tribunes. But say what they can, they can∣not find his Legislative power, to be any other thing then the Regal power, and a principal part and branch thereof, al∣though in many cases it be very justly restrained in the use and exercise thereof to the Kings sitting in his Parliament, his Su∣pream Court and Councel, with all the estates of the King∣dome; 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 ele∣ction of their Pastors and Prelates,* 1.512 non quod debent imeresse ut eligentes, sed ut consentientes: nullus invitis pepulis & non pe∣tentibus 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,* 1.513 nec aliter septem Diaconi creantur quàm Populo vidente & ap∣probante: 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 preser∣ved, and taxes and levies of money on the people impo∣sed, 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 im∣positions, 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,* 1.514 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 under∣taken 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,* 1.515 that during the Raign of diverse Kings after the Norman Con∣quest, 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,* 1.516 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 a long time the King, that there was great danger they would have raised an Aristocracy, or several petty Prin∣cipalities, 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 re∣quest of the Commons with the assent of the Prelates and Peers, we have ordained and established; and so in the suc∣ceeding raign of Richard the Second, and in the first of Hen∣ry 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, contribu∣ting their assistance, according to their respective duties and the trust reposed on them. This concurrence doth serve ex∣cellently for the direction, regulation, and in some respect for the qualification, not for the diminution, but for the sup∣port 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 there∣fore the assistance and concurrence of all the Estates in Par∣liament 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 transfer∣red all their Supream power to their Emperours, yet did the Senate afterwards make divers Lawes, called Senatus consul∣ta, which were often concomitant, or subsequent to the Im∣perial Edicts, yet this was never held to be a conferring or communicating of any part of the Legislative Imperial po∣wer: no otherwise the Kings of France do grant to the Par∣liament of Paris, when their arrests concurr with the Kings Edicts, which are there usually ratified:* 1.517 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 Impe∣rio est: Imperator solus conditor, & Interpres Legum est:* 1.518 li∣cet Augustus Caesar constituit viros prudentes ad jus interpre∣tandum, ut major juris authoritas haberetur. The Emperours since have made their Lawes, hortatu & consilio Archiepiscopo∣rum, Episcoporum, Ducum, Marchionum, Comitum, Palati∣norum, 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 po∣er 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 for∣mer 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 institu∣tion and use of Parliaments hath longest continued,* 1.519 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,* 1.520 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,* 1.521 partitionem fieri potestatis. The supream Senate is (as the Emperour in the Golden Bull calleth the Princes E∣lectors) 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 Im∣perii communicari poterit: Tamen nihil majestati detrahitur, si in partem solicitudinis Imperatoris invocentur, exemplo vete∣rum Imperatorum Romanorum, qui et si habuerint summam potesta∣tem, ut quodcunque Imperator Edicto statuit legis habebat vi∣gorem, nihil tamen magni ponderis sine consilio & consensu Sena∣tus expediebant.* 1.522 Moreover long before the Empire was establi∣shed 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 univer∣sorum 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 passe away or communi∣cate any part of their inherent, individual legislative power. The several estates conjoyned in Parliament, as the Lawyers say, in other cases do assist, non per modum limitationis, sed per viam ministerii necessarii: quia leges condere est maximus meri Imperii gradus, & de reservatis Principis in signum supremae potestatis. Iusta & legitima lex est quae processit ex civium con∣cessione & voluntate spontanea: Lex est communis spensio Rei∣pub. quia in legum observationem quilibet Civium spondere vi∣detur. This rule in law ought to have place in all Monarchies, as well as in Common-wealths and free States; it being so

agreable to justice and the preservation of all mens rights. Yet our Statutes made in Parliament are the proper acts of the Kings legislative power, with the necessary assistance of the three Estates, sed nec communicato, nec diviso Imperio. To communicate he ought in Counsel, but not communicate his supream rights of Empire: for his Empire is not so much permitted by God to his absolute power, as it is by him com∣mitted to his faithful care, for the preservation thereof, and the Peoples welfare, and unto him he must give an ac∣count.

CHAP. XVIII. Of the Kings Prerogativ'.

Our Innovators do not rest at the quarrel against the Kings legislative power, and other his Regal rights; but many of them fly at his whole prerogative: The very name is odious unto them, through ignorance or malice. The prerogative of the King, is supported by the Common law of England, and it doth often serve to support the Law, and the rights of all men; both of them do give and receive vertue and strength to and from each other. The Emperours in their Lawes say, Authoritate juris penàct nostra authoritas. The Regal prerogative,* 1.523 is called Lex Coronae, and it hath e∣ver been reputed a part of the Common Law of England, and so lex Ecclesiae Anglicanae, & lex terrae: and this lex terrae doth, as formerly our regular Parliaments ever did, fence and inclose the prerogative within its just limits, as well for the safety and preservation thereof, as for the welfare of the peo∣ple, which being the supream law is the scale and measure of the Kings prerogative. For there is great use of the Kings prerogative, especially when the ordinary course of law cannot

afford that help, or at least so speedily as is necessary, not only to prevent injustice and wrong unto private men, but also the prejudice or damage of the Common-wealth, peradventure irremedial.* 1.524 Oftentimes, tarda sunt legum auxilia. But as the same author saith, non utendum Imperio, ubi legibus agi potest, according to the rule in law, qui communi auxilio munitus sit, non debet uti extraordinario remedio. The prerogative is not to cross, and suppress the ordinary course of law and Justice, if it may be avoided, to the prejudice of the just rights and liberties of the people:* 1.525 the Kings strength loveth judgment; he doth temper his power with justice: when the ordinary course of law can be effectual, the supream absolute power ought not to be used. There is often use of the prerogative, ex vijustitiae, for moderating the rigor, and for suppressing the abuse of diverse penal lawes, made for terrour, ut metus, non poena ad omnes perveniat; not to be preposterously used as snares to catch men by those Informers who often become the Catterpillars of the Common-wealth, and are more evil then necessary, whereas the best of them are accounted in the number of necessary evils: Instruments these are made for the draining of mens purses, not for correction of their evil manners; when the penalties exacted seem rather as a price set upon offenses then a due punishment of them: Ʋbi omnis domus delatorum interpretationibus subverteretur,* 1.526 utque antehàc fla∣gitiis, ita tunc legibus laborabatur; & graviora remedia quam delicta erant: omnibus notorium sit hos nunciatores execrabiles esse, qui consequendi praemii causa àenunciant; adeò turpe est delatoris nomen,* 1.527 ut injuriarum actione tenetur qui hominem delato∣rem appellat. Penal lawes thus executed prove oftentimes as perni∣cious, and raise as much hatred against the Prince as the over∣straining and abuse of his prerogative, or the exercise of an arbitrary power in government.* 1.528

But if a King hath not a supream power, his government will be very defective, and he is rather to be esteemed a titu∣lar King, then a King invested with Regal Soveraignty: al∣though

it is necessary to have this regal power restrained in many cases by just lawes, and by the prudence of Judges in courts of judicature, for the good of both Prince and People: Ea demùm tuta & diuturna est potentia,* 1.529 quae viribus suis modum imponit, legitimis vinculis constringendo, ut longius à licentia, ita propiùs ad benevolentiam, as the wise Spartan King said: And yet they are much deceived, who think Kings can be never too much restrained, and esteem the most limited power the best and safest; whereas the best limited power, and most likely to preserve peace between the King and his Subjects, is that power which, as much as may be, is regulated by the foundest, most perfect and equal lawes between the Prince and the people. For the ancient wise men, philosophers and Law∣givers, did not approve of those governments as the best, where the supream power was most restrained, but where the justest lawes were, and the most care for the execution of them: The liberty necessary for the Common-wealth,* 1.530 is that liberty which serveth as the handmaid of Justice, and is to it applyed and appropriated: Moderata libertas omnibus salutifera,* 1.531 immo∣derata omnibus gravis, & possidentibus eam periculosa. The Romans who were most careful in preserving just liberty, and enemies to unlimited power and arbitrary government,* 1.532 were oftentimes constrained to constitute a Dictator with supream authority, exempt from the legal forms and strictness of posi∣tive lawes, who in the time of his Dictatorship by the same power did all acts as a King, neither could any other make them void, and the reason they gave is, ne capiat Respub.* 1.533 de∣trimentum: Creato Dictatore primùm Romae, ut intentiores essent ad dicto parendum, neque provocatio erat, ueque ullum usquàm, nisi in diligemia parendi auxilium. And may there not oftentimes be as great cause for a King to use his extra∣ordinary power without the compass of positive lawes, as there was for the Romans to constitute such an extraordinary and supream Magistrate? For as the prerogative of the King ought to give place to the publick good and safety of the peo∣ple; so must the rights and liberties of the people, when ne∣cessity requireth give place to the Kings supream authority: Subditorum jus supereminenti Regis dominio subest,* 1.534 quatenus publica utilitas desiderat: Nam ut aequitas simplicitèr cedit

aequitati summae, ita jus eedit juri supremo; maxima aequitas est, & lex suprema, dicunt Doctores, quae maxime ad religio∣nem (nam summaratio est, ut in lege dicitur, quae pro Religio∣ne facit) spectat, & ad publicam utilitatem, & ad hominum societatis vinculum conservandum. Moreover those who would abolish the Kings prerogative would take away with it one most proper and necessary branch thereof, which is his right of granting priviledges, dispensations, qualifications, ex∣emptions from the Rigour of positive lawes: so as men shall expect no farther then the letter of the law granteth, what∣soever their case or merits are: whereas there is often as ne∣cessary use, and as great justice in priviledges, dispensations and exemptions, as there is of and in the Lawes themselves, and peradventure more. For the most perfect positive Lawes can∣not provide for all accidents. The Roman Praetor had po∣wer,* 1.535 as equity required (aequitas justitiae maximè propria est) ut juvet jus civile, ut suppleat, utque corrigat, in private mens cases, and so is it in Courts of equity: And shall the Prince be restrained from the use of equity, from helping, sup∣plying, or correcting the Law, when the publick good, or the preventing of injury to private men, requireth it, and from dispensing with the rigour of penal laws,* 1.536 whose right it is leges condere, & conditas interpretari, duritiamque ipsarum mollire, lenire, temperare? Judices non debent esse clementiores legibus: In lege dicitur, quod quidèm perquàm durum est, sed ita lex scripta est, and it was not in the power of the Judges to help it, for such a strict and hard Law, onely the Prince could mollifie, when the words of the Law are so clear and precise, that it cannot receive an interpretation ex bono & aequo. it were very absurd to take away all particular priviled∣ges and exemptions from the general rigour of sundry Lawes; and it were infinite to set down those good Laws founded upon reasons, drawn from the Law of nature: which neverthe∣less upon due consideration of circumstances, are justly re∣strained from their general force, without any violation to the reason, the life and the soul of those Lawes, as the Do∣ctors say of the Civil and Canon Lawes. So as there is a dispensation of Justice, requisite in point of Justice, as well as

there is a dispensation of Grace, whereby the bond of the Law is not released, the force and obligation of the Law still re∣maining; onely the reason of the Law, which is the soul of the Law, in some particular case ceasing, the Law is justly in∣terpreted in such case not to have place, but to have the in∣fluence and vertue thereof limited or suspended according to the true meaning of it, and the intention of the Law-maker, lest injustice or absurdity follow. I grant, that there is often an abuse of the Law, and of the equity and power given for interpretation, mitigation and dispensing with Lawes un∣der the countenance and colour of equity and justice; plerum∣que sub authoritate juris perniciosè erratur,* 1.537 ubi quaestio sit de bono & aequo. And there is an abuse of the Regal power and prerogative; quid non dominantium cogitavit cupiditas? ubi malè agitur necessitatis obtentu,* 1.538 & licita ex necessitate in ar∣gumenta trahuntur, as saith the Law. And all this is acted under the colour and pretence of reason of State, which ac∣cording to the Italian saying, Ragion di Stato, guasta tutto il Mondo, Reason of State destroyeth the whole world: These are commonly called Machiavillian counsels, State-impostures, stagitia dominationis; as were those which Proculus,* 1.539 Titianus and Nero used, when they could find neither Law nor reason to justifie their will, ad jus imperii, & ad vim dominationis transibant. And in later ages the exorbitant actions of Prin∣ces are justified by Sycophants, by reason of State, and by the virtue of their absolute power different from their legal and ordinary power.* 1.540 Plenitudine potestatis Princeps ad ma∣lum utendo, dicitur plenitudo tempestatis non potestatis; nam clau∣sula de Plenitudine potestatis inserta, intelligitur de potestate ju∣sta, non Tyrannica: Inest enim plenitudo potestatis in dispositione bonitatis, non pravitatis: posse injustum facere potestas non di∣citur, sed infirmitas & deficientia boni. Plenitudo potestatis non extenditur ad iniquum, neque exercenda est, nisi praemissa clave discretionis, quae regulanda est per jura & ex bono & aequo. Sed in Jure nostro nulla est mentio plenitudinis potestatis. Ʋt foelicitatis est quantum velis, posse; sic magnitudinis velle quan∣tum possis. But these corruptions and abuses, are not suffici∣ent causes, for the abolishing the good and ancient instituti∣ons in Common-wealths, or the proper and necessary rights

of Monarchy, unless we will imitate our late Reformers, who rather have chosen to cut off from the body that which was necessary, then endeavoured to cure any defects there: and have destroyed the good corn wilfully, when they onely pretended to pull up the weeds. The Ba••ance would be kept even between the Subjects right and the Kings prerogative, if the Rule in the Roman Law were observed,salva Majesta∣te Imperii,* 1.541 salvoque jure & more majorum; quia ut dicunt Ju∣ristae; sicut pendet Justitia & ratio Tributi & Fectigalis in re∣cognitionem Supremae potestatis, & ob onera sustinendae Reipub. & ad praestandam securitatem mercibus; ita Regalia Regibus competere, ut statum Reipub, desendant, sive decus & dignitas, sive salus utriusque spectetur.* 1.542

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 imi∣tated, 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 de∣sence, 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.* 1.543 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 Al∣legeance, charity, religion and reason. Into these Associati∣ons 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 coun∣sel, 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 au∣thority, by many of their actions, and cheifly by their en∣deavour 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 un∣twist 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 hor••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,* 1.544 to relate the words of our wise Author, who saith; Foederato∣rum factio primò libellum emisisse constat, quo sumptorum armo∣rum rationem reddebant, ad levandā scilicèt Tributis plebem, quò his inescamentis fascinatam ad suas partes pertraherent; & nova∣rum rerum cupidos boni publici praetextu ad rebellionem impelle∣rent: Cum haec non successisset alia via Plebem aggressos, & religio∣nis 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 dissen∣tions 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 man∣ners, 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 opportuni∣ties, 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 intole∣rable 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.* 1.545 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 Reli∣gion, 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,* 1.546 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,* 1.547 but reli∣gion 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,* 1.548 cum bellorum civilium saevissima tempestate jactati fuisse∣mus, qua multi naufragium, plures jacturam fecerunt, pleri∣que 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,* 1.549 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.* 1.550

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 discern∣ed; 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,* 1.551 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 Reipub∣licae

Romanae, depulso) & dirupta concordia, prius saevis cru∣entisque seditionibus, deinde mox malarum connexione causarum, bellis civilibus, tantae strages ederentur, tantus sanguis effundere∣tur.* 1.552 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 con∣sist in suffering as in acting; and although they pretend un∣to much magnanimity, see how short they come (as an ape differeth from a man) of many Romans, Carthaginians, Gre∣cians 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 them∣selves and their inordinate affections, as for subduing their e∣nemies: who received many publick affronts, from their su∣periors, 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, where∣by 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 banish∣ment, 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, sur∣vived their enemies and their malice, and recovered all they had lost, and obtained the highest places of honour and au∣thority both incourt and camp.* 1.553 Thus Camillus licet reus factus invidia obtrectatorum virtutis suae, tamen ingratam liberavit patriam.* 1.554 Whereas by the Civil war raised by Sylla and Marius striving to destroy each other, non Reipublicae victoria quaere∣batur, sed praemium victoriae res erat publica; utriusque partis defensores, magis agerent amore vincendi quam aequum aut bonum quic∣quam

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,* 1.555 qui Patriam durioribus remediis quam pericula crant, sanavit: and the revenge he took of Ma∣rius and Cinna was with the exceeding destructions of the Citizens, and the irrecoverable loss of the Common-wealth and liberty of the people:* 1.556 In so much as Sylla was advised to restrain his hand from slaughter, that the Conqueror might have some lest of the vanquished to live under his Command. Those two, Sylla and Marius, men of excellent courage and skill in war,* 1.557 decora & ornamenta seculi sui, falling into con∣tention by ambition and upon punctilio's of honour, began that Civil war which drew on the ruine of their Countrey and themselves, by the continual factions and feditions that follow∣ed untill the usurpation of Julius Caesar. These two had their greediness of revenge and of domination and rule requited by a base thraldome, which they drew upon themselves, for they and those that followed them, were inforced to indure all insolencies of their own licentious soldiers,* 1.558 and of others the basest of men, and to purchase their good will with donatives and rewards, and to grant unto them the spoyl of others who were innocent and neuters, as of those who did oppose them. Whereas their Ancestors, would often protest, that they rather would endure to be vanquished by a forraign enemy, then become slaves to their own souldiers, by the want of power to chastise them, and means to retain them in their obedience: thinking it more shame thus to flatter their souldiers, then to fear their enemies.

CHAP. XX. No pretences whatsoever can be just ground of a Civil War or Rebellion.

ALthough the cause of a rebellion proceedeth not from ambition, revenge, or the like, but from actions of good intention, for reformation of the Church or Common-wealth, rebellion and civil war doth follow, yet such men ought to consider, that Sion is not built with blood,* 1.559 nor Jerusalem with iniquity: Wo unto him who buildeth a town with blood, and esta∣blisheth a City by iniquity. He who raiseth a schisme in the Church, or a faction in the Common-wealth, lendeth his hand to the devil against Christ, for the devil entreth at a breach, and then there followeth after a multitude of others of the same crew, although their purposes and designes are different. Those men who have been authors or actors in a Civil war, or a rebellion, can hardly excuse themselves by any pretences whatsoever. There are some crimes, that ignorance cannot serve for a Plea: Lex dat coercionem delictorum quae sponte, vel ignorantia contrahuntur: vel casu fortuito eveniente,* 1.560 maxime si tam lata culpa fuit, ut dolo sit proxima: tam pessimum factum sit corum qui terminos finium agrorum diruperunt, abstulerunt, licet per ignorantiam, tamen puniuntur. Cocrectur legibus non tantum conscientia, sed ignorantia saepè, & error & casus. Puniendus erat qui comederit rem sanctam per errorem: silii Aaronis offerentes ignem alienum morte plectuntur, licet facili∣tate inconsulta, sola mentis inconsideratione peccantes. That pretence of Religion and Reformation cannot so much avail our adversaries (especially in respect of the evil means used for the carrying on of their design) as it doth give cause of con∣demning them of peculiar and selfe-ends, hypocrisy and facti∣on, because the workes and manner in acting were equally e∣vil. A timely desisting, a hearty repentance, would have been

better, then any recrimination, and accusing of others, to ••over their own guilt, or assigning false or frivolous causes and reasons to deceive the world under the vizard of counterfeit sanctity.* 1.561 Medico opus erat, non Patrono. Augmentum reatus est, innocentiam jactare post culpam: & criminosior culpa est, nbi honestior status est; magis damnabilis est malitia, quam ti∣tulus bonitatis accusat, & reatus impii est, bonum nomen* 1.562. He who affordeth his assistance to an unlawful act, is guilty of all the evil which thereby ensueth, although it proceeded through his inconsideration and want of foresight, and was without the compasse of his thoughts and intention, praesertim si eventus illi necessario & per se, aut verisimilitèr sequuntur; quia de culpa quis tenetur, licet culpa sit non ordinata ad casum contingen∣tem, ubi operam dat rei illicitae: superveniens casus culpam praeceden∣tem non excusat, maximè si id quod agitur tendat & dirigitur ad malum ex suapte natura vel intentione operantis. When any thing happeneth by the occasion of an unlawful act, although the Actor used all the diligence, that he or any other man could, to prevent the evil, yet by the Canon-law he incurreth the penalty of irregularity:* 1.563 qui causam damni dat, damnum dedisse videtur, maxime si dolus malus adfuerit, vel quoties causa damni per se ad damnum inferendum sussicit, vel dedit occasionem prox∣imam; si damnum circa rem sit non extra rem; damnum extra∣rium non notatur ex eventu: But he is most guilty, si fraus ejus & animus fraudendi eventum habuerit.* 1.564 Insomuch as he who taketh in hand any design just and lawful in itselfe, and with good intention, if through his rashness and inconsideration, much evil doth follow, his rashness or negligence shall be re∣puted at least an occasion, and an occasion in some cases doth pass for an efficient cause, although it be not properly à causa efficience,* 1.565 first and principally moving; est causa impulsiva, & si minus principalis, tamen impellit seu movet principale agens ad efficiendum: & circumstat causam: est accessio causae: & sie si per imperitiam & infirmitatem suum damnum dederit infir∣mitas vel imperitia sua culpae adnumeratur,* 1.566 cum affectare id quisque non debeat, in quo vel intelligit, vel intelligere debet, infirmitatem suam alii periculosam futuram esse; especially where the Church or Common-wealth is much concerned, and the peace of either in danger of being violated. For the errours

of this degree and quality may fitly be compared to an errour committed in war, which according to the common proverb, is committed but once, and that once often serveth for all, and destroyeth all. This I leave to the consideration of the members of the late long Parliament, and their adherents, and likewise this difficult question, which hath perplexed many honest men, although few of this age do ever stick at it, Whether by the lawes divine and humane forbidding the resistance of the soveraign authority justly established, we are thereby re∣strained 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 Polititi∣ans who teach men rebellion, and to flatter and deceive the People, and to effect their own designes, do say, that the su∣pream power is originally in the People, and habitually inhe∣rent 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 servi∣tude 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 re∣turn 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 fram∣ing 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 de∣sire 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.

Notes

• * 1.1

  Jude.
• * 1.2

  In Anglia non defectiones qu••mp-in ùm à R••ge Henri∣co sexto, sed in eos qui apud eum plurimum poterant, Impe∣tus fac••us erat. Paulatim au. dicis crevit & ducum inter aemulationes, simuliatesque, ad postremum & Domestica bella exorta, & in ipsum Regem vis in∣tenta••ur. Pau∣lus Aemilius lib. 10. Histor.
• * 1.3

  Per latus alierum Regem peti, ei. que litem intentari, ut qui capi & opprimi non potuit, is ametis fidis Consiliariis & ministris, Regis dig∣nitate simul ac libertate spolietur. Thu∣an. de Henrico 3. Galli•• lib. 91. Hist.
• * 1.4

  We have made lies our refuge, and under falsehood have we hid cur selves, Isa 28.15.
• * 1.5

  P. Justin hist. of Ven.
• * 1.6

  M. Paris in Hen. 3.
• * 1.7

  Euseb. Eccles. hist. l. 2 c••••
• * 1.8

  Ecclus. 18.14. James 3
• * 1.9

  Livius. L. 30. F. de Poenis.
• † 1.10

  Paul. sent. lib. 5. lit. 21. & 23. tit. Cod. de malesic. & Mathem. Leo descrip. A∣fricae.
• * 1.11

  L. 8. Cod. de Mathematicis. vel Arioles, atuspices, va∣ticinat••tes consuluit, cum eo qui respon∣derit, capite punitur. Paul. senten. lib. 5 tit. 21. Cuiac. ad tit. Cod. de Male∣ficis.
• † 1.12

  Caus. 3. quaest. 5. c. 9. Deut. 18. Lev. 20. & 19.
• * 1.13

  Confess. lib. 7. c. 6.
• * 1.14

  Lip••••i monita Posit.
• * 1.15

  Aelian. var. hist. lib. 3. c. 3.
• * 1.16

  Heyward in Edw. 6.
• * 1.17

  Thuan. lib. 125.
• * 1.18

  Jerobeam usurped and Israel re∣belled against the house of David; Jeroboam changed the publick ser∣vice of God and also the place from Jerusalem to Bethel and to Dan; for if the people went up to Jerusalem to sacrifice, he feared their hearts would turn to Rehoboam their King, and the Kingdome return again to the house of David: and he made Priests of the lowest of the People, which were not of the sons of Levi, 1 King. 12.
• * 1.19

  Fonseca of the expulsion of the Moores.
• * 1.20

  Hist. of Spain. Curtius.
• * 1.21

  Monita Pol.
• * 1.22

  Matth. 10.
• * 1.23

  Act. 23.
• * 1.24

  Instruct. to his son.
• * 1.25

  Sermo 66. Cant.
• * 1.26

  D. Bernard. Sermo 65.
• * 1.27

  Eccles. hist. lib. 4. cap. 7.
• * 1.28

  Socrat. Eccl. hist.
• * 1.29

  Socrat. Proem. ad lib. 5. Eccl hist.
• * 1.30

  2 Cor. 8.23.
• * 1.31

  Luke 22.26.
• * 1.32

  Vide Distinct. 93. c. 4. & distinct. 95. c. 5.
• * 1.33

  Episcopetus est ordo distinctus, in quantum est officium qu••ddam, ad sa∣cras actiones. Aquinas. Episcopa. tus juxta veriorem & receptiorem sen∣tentiam Canonista. um & Theologorum, ordo est; quatenus ordo dicitur offici∣um quoddam & potestas, respec••u qua. rundam sacrarum actionum que sacer∣doti non conveniunt. Conarunias va∣riarum resolut. lib. 1. c. 10. Amongst Gods selected people there was the high Priest, the chief Governour of the house of the Lord. Jer. 20.1. Numb. 3 32.
• * 1.34

  Distinctio 24. c. 6. causa 15. qu••st. 7.
• * 1.35

  Institut. 4. c. 19 Et in lege Constantini Imperatoris, sancimus vim legum ob∣tinere Sanctas Ecclesiasticas regulas quae à Sanctis qu••tuor primis Cenciliis exposi a sunt. Novell. 131. cap. 1. distinctio: 15. c. 2.
• * 1.36

  Exceptis Haereticis Macedonianis qui pro certo tempore non habthant E∣piscopum, sed sub solis Presbyteriis e∣••ant. Sosomen. Eccles. hist. lib. 8. c. 1.
• * 1.37

  1 Cor. 14.36. Luk. 11.35.
• * 1.38

  Aul. Gel. lib. 20. c. 1.
• * 1.39

  Jerem. 6.16.
• * 1.40

  Acts 4.
• * 1.41

  D. Hierony. mus.
• * 1.42

  Instit lib. 4. c. 3. num. 13.
• * 1.43

  Cap. ult. de e∣lec••i••. Duare∣nus & Alii. D. Cyprian. e∣pist. 4. lib. 1.
• * 1.44

  Ʋt sit in Electione Clericorum con∣sensus Cleri, & Plebis & Honorato∣rum Testimonium: Imperatcribus ve∣ro & Principibus electiones Romane∣rum Ponti••icum atque aliorum Episco∣porum referendes esse, usus & consti∣tutio tradidi ••; pro schismaticorum atque hareticorum dissentionibus quibus non∣nunquam Ecclesia Dei concussa peri∣clitabatur. Distinctio 63. cap. 26, 27. Ita erat per vetustiores Canones,
• * 1.45

  Novel. 57. & 123. cap. 18.
• * 1.46

  C filiis 17. quest. 7. Dua••. ren. de benefic. & minist. Ec. cle. lib. 5. c. 4.
• * 1.47

  Acts 5. Institut. de re∣rum divisione. L. 1. Cod. de Sepulch. vio∣lat. Res quam devoverit quis Jehovae, sanc••a sanctorum est Jehovae. Lev. 27.28. Covaruvias. Duarenius & alii. L. 14. Cod. de Sacr. Eccles. sub poena Sa∣crilegii. Novel. 7. c. 10. Heb 7.
• * 1.48

  Malach. 3.
• * 1.49

  Plerique di∣cunt, praece. ptum de deci∣mis Leviticis solvendis non emnino Cere∣moniale, aut Jadiciale, sed morale fuisse, atque sub lege etiam Evangelica vigere, nec antiqua∣tum fuisse. Ita ut decimas etiam hodie, Jure naturali, divino a•• Evangelico debitas esse. Alii dicunt decimas quanlum ad quotam partem, quae verè decima pars est, jure humano institutas su∣isse sub lege Evangelica, nec earum institutio est hodie, ex jure naturali aut divino, quo ad cer∣tam quan••itatem, sed ad congruam sustentationem Clericorum, & in laboris impensi justam mercedem. Covaruvias. The objection made, that Tithes were due by the Levitical law which is now abolished under the Gospel, is of little weight: which although it be granted, yet those judicial Judaical laws do still retain vim exemplarem, although not obligativam, & cum divinitùt institutae fint, in iis ostenditur quid Deus approbavit, & deservire possunt per modum exemplarium, seu directivum, ad imit andam prudentiam & equi∣tatem earum in multis: and as Calvin saith, lib. 4. c. 4. num. 1. Institut. In iis rebus u∣tile erit veteris Ecclesiae formam recognoscere, quae nobis divinae institutionis imaginem quandam oculis repraesentabit.
• * 1.50

  Livius.
• * 1.51

  Leges quae non in tempus aliquod, sed perpetuae utilitatis causa in aeter∣num latae sunt, non sunt abrogandae, nisi quas aut usus coarguit aut s••••us aliquis Reipublicae inutiles ••ecit. Li, vius lib. 34. Non ob quamcunque causam melius quidpiam adserentem ••utanda est lex, sed tunc quando usque a••tò excedit, ut damna detrimentaque compensat, quae legis mutatio, suâ a∣ptâ naturâ secum assert. Soto de Justi∣tia & jure.
• * 1.52

  H••••ker. Eccles. Politie. Dio••ys. Ha∣licar.
• * 1.53

  Sent••a.
• * 1.54

  Thucydides.
• * 1.55

  Salust.
• * 1.56

  Valerius Max. lib. 9. cap. 1.
• * 1.57

  Livius lib. 1.
• * 1.58

  Salust.
• * 1.59

  Livius.
• * 1.60

  Episc. Winton. Tontur. Ton.
• * 1.61

  Prov. 20.25.
• * 1.62

  Bish. of Win∣chest. Epist to P. Moulin.
• * 1.63

  Psalm 29.
• * 1.64

  Judges 6.
• * 1.65

  Joshua 6.
• * 1.66

  L. 3. & 1.4. Cod. de Page∣nis.
• * 1.67

  1 Corinth. 2.
• * 1.68

  Calvin. Inslit. lib. 1. c. 5. n. 2. Ad intelligentiam sacrarum Scripturarum secularium peritia & liberaltum Arti∣um est necessaria. Distinclio. 37. Quicquid de ordine temperum transa∣ctorum indicat historia gentiumpluti∣mum nos adjuvat ad sanctos libros in∣telligendos: & quaecunque de loco∣rum situ, naturaque animalium, lignorum, herbatum, ••liorumve corporum scripta sunt; sendimque cognitionem valere ad aenigmata soripturarum solvenda docuimns. August. de Do∣ct••ina Christiana lib. 2. Jalianus A∣postata interdixit Christianis usu Poe∣ticae Rhetoricésque ac Philosophica∣rum artium; nempropriis, inquit, ut inproverbio est, pennis configimur, ex nost is enim libris aima copiunt quis but in bello adversus nos utantur. The∣odoreti Ecclos. hist. l. 4. c. 8. An ipse non est Ecclesiam persecutus qui Christianos liberales artes dosere, & discere ve ••uit? August. lib. 18. c. 52. de Civit. Dei. Licet à ciuore abstinuit, & non Christianorum corpora occidere, sed ex co∣rum animis Christum revellere miris artibus technisque attentabas, quod est genus persequendi o∣mnjum efficacissimum & porniciocissimum. Ita effecium est ut plures hac calamitate abcesse∣riot ab Ecclefia, quem ulla alia superiore. Lud. Vives.
• * 1.69

  Philosophi & meximi Platonici si∣qua fortè vera & fidei nostrae accom∣moda dixerunt, non solùm formidan. de non sunt, sed ab ils etiam ten∣quam injuflis possessoribus in usum no∣strum vendicanda. August. de Do∣ctrina Christiana, lib. 2. De bono & necessario usu dectrinae & alierum rerum Paganorum & Gemilium. So∣crates Eccl. bist. lib. 3. c. 14.
• * 1.70

  Eph. 4.18.
• * 1.71

  Cap. 44. De∣cretal de sen∣tent. excom.
• * 1.72

  Alberic. Gen∣til. & alii.
• * 1.73

  Causa 24. quast. 1. c. 32.
• * 1.74

  1 Corin. 15. Galat. 1. & 6.4.11.
• * 1.75

  ••t D. August. Decret. Gratian. Di∣stinct. 11. c. 7. Qui etiam dat hanc regulam; ut quae consuetudines non sunt contra fidem, neque contra bonos mores, et habent aliquid ad exhorte. tionem vita melioris, ubicunque in∣stitui videmus, non solùm non impro∣bemus, sed etiam laudando & imi∣tando sectemur: Epistola ejus ad Januarium.
• * 1.76

  S. Hierome sheweth us such men in his time, qui quicquid dixerint, boc legem Dei putant; nec scire dignantur quid Prophetae, quid Apostoli senserint; sed ad sensum suum incorgtua aptant testimonia, quasi grande sit & non vitiosissimum docendi genus depravare sententias, & ad voluntatem suam Scripturam trahere repugnantem. Epist. ad Paulinum. The unlearnd and unstable wrest the Scriptures un∣to their own destruction. 2 Pet. 3.16.
• * 1.77

  Psalm 94.21.
• * 1.78

  Daniel 7.25.
• * 1.79

  Tertul. Bernard.
• * 1.80

  2 Corin. 1 24 Cap de Judaeis Dijlinct. 45.
• * 1.81

  Thuan Epiff. in prin ipio Hist.
• * 1.82

  D. Hieronym.
• * 1.83

  Epist. 48. & 50.
• * 1.84

  D. Bernard. ser. 66. super Cant.
• * 1.85

  Luke 14.
• * 1.86

  Auguslin.
• * 1.87

  August. de Ci∣vit Dei lib. 2. c. 20. L. 1. Cod. de secund nup. Tit. Cod. de Caduc. tol.
• * 1.88

  August de Ci∣vit. Dei. lib. 4. cop 6.
• * 1.89

  Aquinas.
• * 1.90

  L. 6. Cod. de Paganis.
• * 1.91

  Botero.
• * 1.92

  Rom. 11.
• * 1.93

  Rom. 13.
• * 1.94

  D. Augnst. de Civit it. Dei lib. 22. cap. 2.
• * 1.95

  Cyprianus. Grot. de jure belli lib. 1. c. 4. n. 7.
• * 1.96

  Augustin.
• * 1.97

  Ecclesiastical history.
• * 1.98

  In vits Claudii l. 15. hist.
• * 1.99

  Riba Jinera del Schismad Ingla terra.
• * 1.100

  Lord Chanc. S. Albans of the union be∣tween Eng∣land and Scotland.
• * 1.101

  Tacitus.
• * 1.102

  These Anabaptists then started up, and declared that they had speech with God, who command∣ed them to destroy all the wicked and to taise a new world in which the godly onely should live and reign. Sleidans Comment. lib. 3. Fox Acts and Monuments.
• * 1.103

  August. de Ci∣vit. Dei. l. 18. c. 51.
• * 1.104

  Caus. 7. quast. 1. cap. 48.
• * 1.105

  Platina.
• * 1.106

  August. de Civ. Dei lib. 18. cap. 51.
• * 1.107

  Valer. Max.
• * 1.108

  By the Di∣vine law, he that sacrifi. ceth to any god, saving to the Lord one∣ly, shall be destroyed. Exod. 22. The Prophet or dreamer shall be put to death, who doth intice to the service of other gods. Deut. 13 5. and the icha∣bitants and the city shall be destroyed that serve o∣ther gods. Deut. 13.15, 16.
• * 1.109

  L. 29. Cod. de Episcop. & Clericis. L. 4. Cod. de summa Trini∣tate. L. 8. S. 5. Cod. de Haereticis.
• * 1.110

  Aquin. Alciat. & alii.
• * 1.111

  D. Bernard. in Cant.
• * 1.112

  Religionem cum Imperio periclitari. Thuan. lib. 116 Histor. Reli∣gioni, nist sal∣vâ Republicâ consuli non pos∣se. Thuan. 136. Histor.
• * 1.113

  August.
• * 1.114

  Hosea 5.10.
• * 1.115

  It was said in relation to the Ro∣man Senatots, fallen from their an∣tient glory, aliorum vitia intrd ipsos residuunt, nostra latè vegantur; ut in corporibut, sic in Imperto gravissimus est morbus, qui a capite dissunditur. Plinii Epi••••ola••um lib. 4.
• * 1.116

  Cujecius.
• * 1.117

  De Civitat. Dei.
• * 1.118

  Plutarch in the life of Gracch.
• * 1.119

  Suarez de ligib libro 8. & alii.
• * 1.120

  They that say a whole Society or Colledge cannot be punished, as it cannor he excommunicated, do agree, that not onely the offen∣ders may, and chiefly those who are the cause, but all those also who are members, and did not resist the evil: nisi pertinaciter re. stiterunt, aique aclis contredixerunt. Gless ad c. 7. causa 10 quast 2. & ad Decretal. de Simonia c. 30. quia officium eorumindividuum est, & pe∣riculum commune, universi sunt veluti in corpore unius formae, & quod ab u∣no cemmittitur, quandoque totius cor∣pnis periculo commiuitur; Si tales sint astus singulorum per quos detegi potest conniventia, seu voluntas tacita universitatis approbantis delictum.
• * 1.121

  Augustin.
• * 1.122

  Livius.
• * 1.123

  Cicero. L. 9 F. Quod metus.
• * 1.124

  Liviues
• * 1.125

  L. 6. Cal. de vipubl.
• * 1.126

  Numb. 2••.4.
• * 1.127

  Liviue.
• * 1.128

  P. Fab. Seme. lib. 3. c. 16,
• * 1.129

  Novel de Pro∣cur. Casar.
• * 1.130

  Livius l. 28.
• * 1.131

  Distinct. 44. c. 1. & distinct. 6. c. 1. de Poe∣nitentia, cum Glossa.
• * 1.132

  Bartol. de se∣ditiosts.
• * 1.133

  Livius lib. 26.
• * 1.134

  Paul. Aemilius
• * 1.135

  Plinius.
• * 1.136

  Senatui praebebat Tiberius simulachra libertatis, speciosa verbis, re inania, quantó que majore libertatis imagine tegebantur, tanto eruptura ad infenfius servitium, Tacitus.
• * 1.137

  Paul. Aemilius: Thuanus. Bodin de Repub Ordines pro tâ quam exercent in Comitiis libertate facile dissensu∣ros fuisse, in quo & majestatem su∣am Populis tentandam, aut etiam con∣temnendam expesuisset Rex, & eorum animos tanto magis irritasset, quanto ils invitis peregisset: Strada & Ben∣tivoglio de bel. Belgico.
• * 1.138

  August. de Ci∣vit. Dei lib. 5. c. 15. Impera∣tor Constanti∣nus scripsit ad Synodum Tyri ut conceptas rixes delerent, quia secum discordantes non liceret ad divinum cultum adesse, nec munera sua offerre altari priusquam ad mutuam pacem redterint, ••t lege divina docemur. Euseb. in vita Constant.
• * 1.139

  Livius. Augustin. Livius lib. 24.
• * 1.140

  Buchan. Scot. hist. lib. 13.
• * 1.141

  Lib. 2. tit. 27. de Feudis.
• * 1.142

  Cassan. catal. Glor. mundi.
• * 1.143

  L. 10. F. de vi pub.
• * 1.144

  Cook Institut. 4.
• * 1.145

  Thuan. lib. 23.
• * 1.146

  Caus 11. quaest. 3. cap. 89. cum Glossâ.
• * 1.147

  Thuan. & alii.
• * 1.148

  C 28. de Elect.
• * 1.149

  Stew Chron.
• * 1.150

  L. 3. & 4. F. de Decurioni∣bus. L. 3. F. de Decretis, qui à duabus partibus Cardinelium electus fit Romanus Pontifex habetur. In aliis electionibus quod fit à majori & saniori parte Capituli, valet, consueta forma servata. De electione cap. 6. Decretal.
• * 1.151

  L. 8. Cod. de legibus.
• * 1.152

  L. si. in tres. L. item si unus: F. de recept. arbi∣t••is. L. Pluri∣bus. F de Pro. curatoribus L. si plutes. l. cum plures. F de Administ. Tut. L. 37. F. dere judic.
• * 1.153

  L. 45. Cod de Decurionibus.
• * 1.154

  Chronic. Ger∣vasti, & alii.
• * 1.155

  Sir Rob. Cot. Treatilc.
• * 1.156

  L. 23. Cod. de Testam. causa 11. q. 1. cap. 29. Novel. Justin. 123. Quod congruit cum Chalcedon. Synod. c. 16. Cuiac∣ad dict. Novel. 123. Qui divino mi∣nisterio consecrati sunt, hos ab exter∣narum rerum occupationibus & mole∣stiis liberos esse oportet, ne rebus impu∣ris adhaereant ac in terrenis sordibus volutentur, ut cautius diviniusque vi∣vant: Constitut. Leonis Imperat. 68. & dtcit Apostolus, nemo militans Deo implicat se saecularibus negotiis.
• * 1.157

  Jerem 26 11.
• * 1.158

  2 Chron. 19.
• * 1.159

  Alb. Gentil. de nup. l. 1. c. 14.
• * 1.160

  Livius. Plin. Epist.
• * 1.161

  Bartolus & alii.
• * 1.162

  Baldus & alii.
• * 1.163

  Platina.
• * 1.164

  Plutarch. in Cato.
• * 1.165

  Polibius.
• * 1.166

  Livius. Act. 5.
• * 1.167

  Sosomen.
• * 1.168

  Platina. & alii.
• * 1.169

  Livius lib. 39.
• * 1.170

  Valerius Flaccus being made In∣ter-rex in a vacancy, the Consuls being absent, preferred a law, that Sylla should be perpetual Dicta∣tor, and do what he list. Cice. Appian. Livius lib. 3.
• * 1.171

  Bart. ad tit. qui srent Re∣belles Bald. ad tit. quib. modit. feudum amit. cap. 1.
• * 1.172

  Livius lib. 5.
• * 1.173

  Blorus lib. 3. cap. 13.
• * 1.174

  L. 1. F. ad leg. Jal. Ma. L. 3. F. de vi pub. lica. Lib. 2. de Feu∣dis. tit. 53.
• * 1.175

  L. 15. Cod. de Epise & Cler. L. 8.8.5. Cod. de Haereticis: Novel & 132.
• * 1.176

  Caus. 11. c. 21.
• * 1.177

  L. 3. F. ad le∣aeem Juli. ma∣jestatis.
• * 1.178

  Novel. 17.2.13.
• * 1.179

  L. 27. de Reg. jur.
• * 1.180

  L. 7. F. de Pactis.
• * 1.181

  L. 112. de le. gat 1.
• * 1.182

  Numb. 30
• * 1.183

  Decretal. de jurejurando. cap. 19. Lib. 2. de Feu. dis tit. 55. & 7.
• * 1.184

  Livius lib. 42. Thuanus.
• * 1.185

  Seneca. Tacitus.
• * 1.186

  Tacitus.
• * 1.187

  L. 5. c. 12. de Civit. Dei.
• * 1.188

  Seneca. Decret. causa 1 cap. 25.
• * 1.189

  Livius lib. 6.
• * 1.190

  Cap. 2.
• * 1.191

  Livius lib. 45.
• * 1.192

  Salust.
• * 1.193

  Seneca.
• * 1.194

  Psal. 92.
• * 1.195

  Prov. 12.
• * 1.196

  Isaiah 5.
• * 1.197

  Psalm 94.
• * 1.198

  Psalm 75.
• * 1.199

  Ecclesiastes 9. August. de Ci∣vit. Dei. lib. 20 cap. 2.
• * 1.200

  De Tyranno, & de regimine Civitatis.
• * 1.201

  Tacit. Annal. 1. L. 2. F. 2 de Orig. jur. Florus. Livius.
• * 1.202

  Isaiah 19.
• * 1.203

  Such as King Antio∣chus, who took away the daily Sacrifice, and the place of the Sanctuary and placed a∣bomination, that made desolation. Daniel 8. verse 11. and Chap. 11 v. 31.
• * 1.204

  Livius lib. 3.
• * 1.205

  Aquinas.
• * 1.206

  Luke 23.
• * 1.207

  L. 5. Cod. de hit qui ad Ec∣cles. Paul. sen∣tent. lib. 5. tit. 22.
• * 1.208

  L. 1. F. ad leg. Jul. majestatis. L. 1. l. 2. Cod. de sediti. Cu∣jec. paratit. e∣ad. 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. Majesta∣tis.
• * 1.209

  L. 1. F. ad dict. leg. Jul. Authores sedi∣tionis & tu∣multus, qui con∣citato populo, pro qualitate corum, aut in cruce tolluntur, aut bestiis objiciuntur, aut in insulam deportantur. Paul. sentent. lib. 5. de Se∣ditiosis. 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. & p••st••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.
• * 1.210

  Tit. Cod. nova vectig. lib. 10. F de Publica∣nis. Deciss Rotae Rom. L. ult. F. de vi pub.
• * 1.211

  Tit. Cod. ut arm. usus. Lib. 17. Cod. de re milit.
• * 1.212

  L. 1. L. 2 F. ad leg. Ju••iam Majest.
• * 1.213

  Augustinus.
• * 1.214

  Cook Postna••••.
• * 1.215

  Cook upon Littleton.
• * 1.216

  Deoff. Praefe∣ctivigil. F. Salust.
• * 1.217

  Decretal de officio Legati cap. 4.
• * 1.218

  L. 34. F. de contrah. empt. L 6. de con∣trah. emp. F. L 9. l. 45. de usu cap. L. 7. tit. 37. & 38. Cod.
• * 1.219

  Relationes Baudii & Meursti.
• * 1.220

  Baldus.
• * 1.221

  Baldus.
• * 1.222

  No Act of Parliament can bind the King from a∣ny preroga∣tive which is sole and inse∣parable to his Person.
• * 1.223

  Peregrinus de jure fisci & alii. Cho∣pin. de doman. Reg. Codex Fab. Sex. tinus de Regalibus. Tributa & a∣lia 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 Im∣periales. l. 4. l. 6. de Praescript. 30. & 40. annorum. Cod. l. ult. C. de Fundis Rei privatae. l ult. C. de Fun∣dis Patrimon. caus. 16. quast. 3. c. 16. de Tributis aliisque prensitationi∣bus publicis nullo temporis spacio prae∣dia redduntur immunia; non sic de alio jure publico, principali seu Fis∣cali & Feudali. Cujac. consultatio. 54.
• * 1.224

  Tacitus.
• * 1.225

  Baldus Alex∣and. Angelus & alii.
• * 1.226

  Sixtinus de Regalib. lib. 1. cap. 5.
• * 1.227

  Salvianus.
• * 1.228

  Salust. Pater∣culus.
• * 1.229

  Plutarch in the lives of Caesar and Pompey.
• * 1.230

  Medina. Felin & alii. Ancharan. De∣cius & alii, & Decis. Rotae Rom.
• * 1.231

  L. 2. F. de except. doli L. penult. F. de condict. sine causa. Cuiac. & alii.
• * 1.232

  L. 54 F. de condict. in de∣biti. l. 36. de verb. obl.
• * 1.233

  L. 36. F. de verb. obl.
• * 1.234

  Decis. Rot. Rom. Farinacii. Decis. Rot. Rom. Lib. 2. Cod. de rescind. vend. Lib. 7. Cod. Quando pro∣vocare.
• * 1.235

  L siquidem Cod. de Praedi∣is minorum. Exravag. de reb. Eccl. non alienandis. l. 5. & penult. F. de reb. eo∣rum qui sub Tut. l. 4. Cod. quib. ex cau. major. l. 35. F. de rejud. Cuiac. l. 1. F. de just. & jur.
• * 1.236

  Baldus & alii.
• * 1.237

  Baldus.
• * 1.238

  Beldus, Decius & alii.
• * 1.239

  Cicero offie. lib. 1.
• * 1.240

  Decis. Rotae Rom. Farinacii. 656. pars 2.
• * 1.241

  Decis. Rotae Rom Durandi.
• * 1.242

  Decretal. de rescriptis. c. 20
• * 1.243

  L. 2. & l. 6. Cod. tit. si con∣tra jus vel uti. litatem publi∣cam. Coveruvias var. resol. l. 1. c. 20. l. 3. l. 1. Cod. de precib. Imp l. ult. Cod. si 〈…〉〈…〉 pubil.
• * 1.244

  L. 7. F. de. p••∣ctis. l. 112. F de legatis. 1. l. 5. Cod. de legibus.
• * 1.245

  Cicero. l. 90. F. de regulis Ju. is.
• * 1.246

  Cap. 18. of his Prince.
• * 1.247

  Sereca.
• * 1.248

  Livius lib. 9.
• * 1.249

  Plin. Paneg. L 10. F. de condit. Instit. L. 79. F. de Jure dot l. 63. F. de condit & demonst.
• * 1.250

  Aquinas.
• * 1.251

  Seneca. L. 1. l. 7. F. de Pactis. Baldus.
• * 1.252

  Livius. Lipsius Cicero. Sleiden. 19. Nat. Comes 3. Guicciard. 5. Gentil. de jure belli Lib. 2. c. 4. l. 2. Cod de legibus.
• * 1.253

  L. 4. Cod. de legib.
• * 1.254

  Florus.
• * 1.255

  Tacitus. Lib 3. c. 5. discur. upon Livie.
• * 1.256

  Livius lib. 2.
• * 1.257

  Ticitus.
• * 1.258

  L. 24. F. de Ca∣ptivis. Cuiac. ex Cod. Theod. ed c. ult. de restit. Spol. Decretal. l. 27. F. de Ca∣ptivis. Cap. 11. De∣cretal. de Ju∣diciis.
• * 1.259

  L. penult. C. de acquir. poss.
• * 1.260

  Lib. penul. F. de interdict. l. ult. F. de vi bon. rapt.
• * 1.261

  L. 24. F. de u∣surp. & usu cap.
• * 1.262

  L 1. & 34. & l. 19. F. de vi et vi armate.
• * 1.263

  L. 12. F. quod metus.
• * 1.264

  L. 7. Cod. unde vi.
• * 1.265

  L. 23. F. de adq. poss.
• * 1.266

  L. 22. F. Quod metus.
• * 1.267

  Ʋt in l. 21. in principio. F. Quod metus
• * 1.268

  Decius ad reg. jar. 40 & sic alti. Decis. Rotae. Rom.
• * 1.269

  L. 1. l. 5. F. Quod metut. l. 3. F. ex quibut caus. Maj.
• * 1.270

  L. 3 S. 7. F. de vi armata. Lib. 3. & 7 de usucap. L. 1. S. 29. F. de vi & vi arm. s. 33. S. 2. F de usucap. L. 29. S. ult. locati. L. 4. F. de vi publica.
• * 1.271

  Causa 23. quast. 8. cap. 12 Seneca.
• * 1.272

  Livius lib. 2.
• * 1.273

  Livius.
• * 1.274

  L. 60. F. de reg. jur.
• * 1.275

  Cuiac. ad De∣cretal. de Te∣stib. c. 45.
• * 1.276

  L. 17.5. Qui et à quib.
• * 1.277

  L. 12. Cod de Poenis.
• * 1.278

  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 remitta∣tur alicui poena: Glos. ad dict. l. 8. quaest. 1, c. 16.
• * 1.279

  1 Sam. 15.24.
• * 1.280

  Aug. de Civit. Dei l. 14. c. 11.
• * 1.281

  L. 7. Cod. ad leg. Jult Ma∣jestatis L. ult. F. ad leg. jul. Majestatis. l. 15. & l. 31. F. de denatio∣nib. L. ult. F. ad leg. Jul. Ma∣jestatis.
• * 1.282

  Baldur. l. 24. de Captiv. l. 18. Cod. de Furtis. Bartoli. & Pe∣regrinus de ju∣re 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 Si∣cartis.
• * 1.283

  Hoveden in H. 2. Augustin. nec potest privatus agere vicem po∣testatis aliou∣jus. August.
• * 1.284

  L. 2. Cod. quendo liceat unicuique. l 2. Cod. de deser∣torib. Faber semest. Cap. 2. de Pri∣vilegiis in De∣cret.
• * 1.285

  L. 6 & 9. F. de injusto ru∣pto. Testamento.
• * 1.286

  Thuanus.
• * 1.287

  Ayala de jure bel.
• * 1.288

  L. 28. Cod. de Trans.
• * 1.289

  Th••••n. lib. 105
• * 1.290

  Livius.
• * 1.291

  Cicero.
• * 1.292

  French Invent.
• * 1.293

  Salvianus.
• * 1.294

  Machiavil. dis. lib 3. c. 21. & 22.
• * 1.295

  Ayala de jure bel. lib. 2. c. 7.
• * 1.296

  Buchanan. Scot. Hist.
• * 1.297

  L. 5. F. de Cr∣pit. minut.
• * 1.298

  I. 21. F de Capt. & Poss∣lim
• * 1.299

  Lib. 1. F ad leg. Jul. Ma∣jestatis.
• * 1.300

  Papinion. lib. 78.79. De reg jur.
• * 1.301

  Tacitur.
• * 1.302

  Plinius. L. 7 F. ad leg. Jul. Ma∣jestatis.
• * 1.303

  Paulus sentent. lib. 5. cap. 29. Cu jac: Ligiumi Principes subditis us li buis non ut servis imperant: non ex terrore aut crimin bus Majestatis, re verentiam nomini meo adqairi vole, dicebat Imperator Tiberius.
• * 1.304

  L. 207. F. de reg. jur. L. 65 & 2. ad Sc. Trebel. Cicero. L. 25. F de sta∣tu hem. Decis. Rotae Rom. Favinacii & Glossa ad cau. 9 quaest. 1. & ad caus. 1. quaest. 1. c. 57. Cuiac. paratit. Ne sanctum Bapt. iteretur Cod. Aquinas & ••olti.
• * 1.305

  Excommunicatio, licet privat fa∣cultate eligendi tam activa quàm pas∣siva, & suspendit ab efficio & be∣neficio, tamen si excommunicatus ha∣bet officium publicum, valebit quod per illud faciet ratione & virtute e∣jus quousque toleratur. Navari in Manual.
• * 1.306

  L. 3. F de of∣fic. Plaet.
• * 1.307

  Cicero.
• * 1.308

  Baldue.
• * 1.309

  Mat. 23.
• * 1.310

  Decis. Rota Rom Farinacii L 2 F. de Judiciis.
• * 1.311

  A••flict: dreiss. Neapol. Bodin de Repub. lib. 2. c 5. Barto∣lus de Tyranno
• * 1.312

  Tit. de schis∣mat. c 1. Decretal. hrita sunto∣mnis facta à tali haeretic•• qualit erat No∣vatianus, nemi∣nisuccedent, à seipso incipi∣ens à seipso or∣dinatus, Cathe. dram sibi con∣stituens, & P ••imatum as∣sument. Divus Cypria∣nus, Epist. 6. lib. 1.
• * 1.313

  Platina. Paul. Aeonilius.
• * 1.314

  Thuanus.
• * 1.315

  Ba-tolus & al••i. Bald. & Gay. lu in ••bierv. Imperial. Cunb. Cuiacius.
• * 1.316

  L. 6. F. de ca∣ptivis.
• * 1.317

  L. 12. F. quemad. servi∣tutes.
• * 1.318

  Bartolus & Decretal. de Prascript. c. 1. &c. 14. l. 16. Cod. de sac. Ec. cles. Novel. Valent. de trigint. ann. praescript. Nec Asris, nec Hi∣spanis imputatur temtus quo Vanda∣li cerum praedia possiderunt. Procop. de bello Vand. Cuiac. p••atis. de Prae∣script. 30. vel 40. annotum. Tempo∣re hostilitatis non currit praescriptio. c. 10. Decretal. de Praescript Nec ubi Poganorum vel increduhrum furor in causa est: causa 16. quaest. 3. c. 13. & 14. Sie si Episcopus fuerit Hae∣retirus, non currit Ecclesiae prescri∣ptie, quia tunc Ecclesia quasi 〈◊〉〈◊〉 unellignur. Glessa. ad Decretal cap. 1. De prascript.
• * 1.319

  Decis. Rot. Rom.
• * 1.320

  Probus de bello civili adversus Lepidum.
• * 1.321

  Faber adreg. jur. 90 〈◊〉〈◊〉 F de Ʋ sucapion
• * 1.322

  L 1. F. de lust. & jur Aquinas. Faber. ad reg. jur 90.
• * 1.323

  Institut. de Jusl. & jure.
• * 1.324

  L. incivile 12 Cod. de rei vind. l. nonid∣circo F. De contrah. empt. Bartol. P. deca∣stro, & alii.
• * 1.325

  Accursiue A∣lexander, Al∣ciat. & alii voa est juris et legum, frangt posse fidem ei qui fregerat prius sidem, qualemeunque fidem, nudam vel juratam. Cu••••ius ad D••••etal. de ju∣re jurand•• cap. 3 &c. 9.
• * 1.326

  Quintilian.
• * 1.327

  1 Samuel 8.
• * 1.328

  Calvin. Instit. Tacitus.
• * 1.329

  Rignalio di Parnaso.
• * 1.330

  Inflitut. tit. qutb. modis Testam. l. 3. Ced. de Te∣stam L. 4. Cod. de Legibus. Diflinctio. 21. c. 4. etc. 7. Decretal. de Electionib. cap. 20.
• * 1.331

  Hosea 11.
• * 1.332

  Job 12.18.
• * 1.333

  Salust.
• * 1.334

  Seneca.
• * 1.335

  Rom. 13.
• * 1.336

  L. 14. F. de condict. inde∣biti. l 2 & l. 8. F. de capi∣t. minut. l. 95. S. 4. F. de solu∣tionib. L 84. F. de re∣gul Juris. L. 26. S. 12. F. de condict. ind••biti. l 12. Cod de in jus vocando. L. d Chanel. and Sir Fdw. Cke, Postnati case. L. 8. F de Ca∣p•••• m••••utis. 〈◊〉〈◊〉 de jure na & gen. L 2 F de Iustu. & jure.
• * 1.337

  L. 64. F de condict. inde∣bitt. Grot. de jur. bel. l. 3. c. 4.
• * 1.338

  Institut. de ju∣shtiâ & jure. Cujac. & alii.
• * 1.339

  L 6 F de Iu∣stit. & jure.
• * 1.340

  Covaruvias.
• * 1.341

  Navari Ma∣nuele.
• * 1.342

  Augustinus C••••••o.
• * 1.343

  Lib. de fendis. tit. de ••••ma fideli••••us. Di∣ctinct. 93 cap. esto subjectus. caus 22 quast. 5. c. 18. cum Glossa. Lucan. L. 4. C. de origine. l. 4. Cod de munt∣cip l. 1. S. 15. F. de ventre inspic. Cod. fit si Curi. lis. l. penult. Cod. de reseind. vend. Coke Postnati Case.
• * 1.344

  Baldus and I∣serna Cujac. ad decretal. Dua∣renus & alii. Operae officia∣les, non cui∣quam alii de∣beri 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 artis••••ales potest delegare, quia ha operae persone Patroni non cobae∣rent. 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 Britan••ia noluit pro Rege Gallia Regem Angliae quasi Dominum agnoscere, quamvis à Rege Galliae deleg••retur Car. Molincus. & Cujac. ad lib. 1. tit 22. De feudis. Julius Cla∣rus 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 Eng∣land, and by the Coronation oath not to be alienated. Frosarde History.
• * 1.345

  Du Tillet.
• * 1.346

  Gloss. ad decre∣tal. tit. qui filii ••••t legit. c. 7. Rex Rom. non∣dum coronatus, post electionem concerdem ha betemaem po∣testatem; un∣ctio nibil addit. Glossa ad tit. de jureiuran∣do. in Clemen∣tin. Glossa in in extravag. de Majoritate. 1 Sam. 10. 1 Kings 39 Seiden of No∣bility.
• * 1.347

  Bodin. de Re∣pub.
• * 1.348

  De Repub. lib.
• * 1.349

  L. 21. F. de Caytivis.
• * 1.350

  Ayala dejure belli lib. 1. c. 2
• * 1.351

  Cicero. L. 9 Cod. de leg. l. 12. Cod. de diver. reg. jur. Decis. Rotae Rom. L. 106. F. de Regul. jur. L. 1. F. Quar. rer. ectie l. 6. Cod. deli∣ber. causa. L. 13. F. ad leg. Aquil. L. 1. S. 2. F. decondition. & demon. L. 13. F. de Policitat. l. 2. S. 44. ed SG. Tirtil. L 13 F. de in∣terdict.
• * 1.352

  L. 9. F. de ob∣sequiis. L 5 Cod. de obsequiis. L 4. F. de jure Palron.
• * 1.353

  Qui decreto publico deditus sit hosti∣bus, ut suit causa Mancini, si hostis non recepisset, an civis Romanus ma∣nebat; magna Quaestio erat L. ult. F. de legationib. licet dicitur quod civit esse desinit, quem civitas repu∣diavit; aliud est in subdito originali, maturali licet deditus sit à sua Patria, & Principe: manet tamen sua Alle∣geancia, quae ubique locorum subditos ••ales tenet, quia naturalis ratio au∣thoritate Senatus commutari non po∣test. l. 2. F. De usufructu. ear. ter.
• * 1.354

  Alb. Gentilis disput. ad jul∣Majestatis. Gentil. Hispae∣nicae advoca∣tionit, & ad Jus belli.
• * 1.355

  Ayala de jur. bel.
• * 1.356

  L. 24. F. de Captivis.
• * 1.357

  L. 3. F. de ossic. Praesu. L. ult. F. de ac∣cus.
• * 1.358

  L. 7. F. de Ca∣ptiv.
• * 1.359

  Coke Postnati case. Deut. 10. Levit. 20.
• * 1.360

  Genes. 49.15.
• * 1.361

  Jerem. c. 27. &c. 29.
• * 1.362

  Vigil.
• * 1.363

  L. 35. F. de Religtos. Ctusa 23. quast. 8 c. 15.
• * 1.364

  Cavaruvies. Cajetan. & alii. Soto de Just. & jur.
• * 1.365

  P. Martyabe. C m & Cal∣vin. Institut.
• * 1.366

  Calvin. Instit. lib. 4. c. 20. p. 27.
• * 1.367

  Augustinus.
• * 1.368

  L. 19. Cod. de Postlim. l. 20. F. de Captivis.
• * 1.369

  L. 25. F. de Legibus L. 6. Cod. de. legib. l. leg••ta inu∣tilia, F. de adi∣mendis legatis. Reg. jur. Cano∣nici.
• * 1.370

  Paulus Juris-Consulius.
• * 1.371

  L. 39. F. de Pac••is Cujac. & alit ad dict. l. 39. Baldus.
• * 1.372

  They who make an Oath, In∣gagement, or a Law obscure or am∣biguous, and not clear and perspi∣cuous (which are essential proper∣ties of an Oath or Law) it is pre∣sumed, quòd sub involucro verborum, & per occasionem obscuritatis, ten∣dunt laqueos deceptionis.
• * 1.373

  L. 50. F. de verb. ob.
• * 1.374

  L. 83. De verb. oblig. L. 21. F. dere∣gul. Jur. L. 4. F. Quae in fraud.
• * 1.375

  L. 2. tit. 6, 7. de Feudis.
• * 1.376

  Livius. Tecitus. L. 28. God. ad leg. Jul de a∣dul. Augustin.
• * 1.377

  Salust.
• * 1.378

  Tacitus.
• * 1.379

  Psalm. 82.
• * 1.380

  Psalm. 11. Paterculus.
• * 1.381

  Plutarch. in Cato.
• * 1.382

  Novel. Leonis 70.
• * 1.383

  L. 1. F. de re∣cap••at. L. 50. l. 54 F. de Furtis.
• * 1.384

  Decretal. de homicidiis c. 6. Cri∣men non dissimile est, rapere, & ei qui rapuit raptam remservare. l. 9. Cod. de vi publica: Sinum praebere furenti, perinde habetur atque si ma∣nisesti fur••i condemnatus esset. l. Sa∣crilegiis & ult. F. de Peculat. crim.
• * 1.385

  Livius lib. 3.
• * 1.386

  Bodin.
• * 1.387

  Baldus, Jason. Casan. Cat. glor. mundi & alii.
• * 1.388

  Decretal de jurejurando c. 33. & Cujac. ad dic. cap. 33.
• * 1.389

  Constagio del union. di Por∣tugal & Thu∣an. hist.
• * 1.390

  Lib. 6. F. de jurisdict. L. 13. F. de ju∣risdict.
• * 1.391

  Baldus & alii & decis. Rotae Rom. 240. & 193. Tom. 3. Farinacii.
• * 1.392

  Lult. F de Jurisdict. l. ult. Cod. si d non competenti Ju∣dict.
• * 1.393

  Decis. rot•• Ro∣manae. Cassaneus ad consuetud. Burgund. & alii Decretal. de rescriptis c. 5. C.S. Tamen. si cuiquam.
• * 1.394

  Gail. observat. lib. 2. Pro bono pacis inter Principes componenda vel tuen∣dae tolerari matrimonium, quod aliàs erat illicitum. Cujac. Comment. ad Decretal. tit. de Desponsatione Impu∣berum. cap. 2. unde versus, Pax ut servetur, moderamen Juris habetur. cap. 2.
• * 1.395

  L. 3. G. de Col∣lationib.
• * 1.396

  Lult. F. de suit & legit. haered.
• * 1.397

  L. 2. tit. 34. de Feud.
• * 1.398

  Guide Pap. de∣ciss. Grot. de jur. belli lib. 1. c. 3.
• * 1.399

  French Invent. Paul Aemili∣us. Baldus & Chopin. de dominio.
• * 1.400

  Bodin.
• * 1.401

  Institut. de in∣util. stipulat. & 2.
• * 1.402

  Book of Wis∣dome cap. 6.
• * 1.403

  Commines:
• * 1.404

  Our most an∣cient Justice Bracton saith, nemo Regi re∣cessitatem im∣po••ere potest, cum superiorem non habra•• nist Deum; & satis ei erst ad pae∣nam quod Do∣minum expe∣ciat ultorem. Tacitus. John Bede of the Right of Kings.
• * 1.405

  Lucan. Livius. L. 62. F. de re∣gul. Jur.
• * 1.406

  Baldus & alii Grot. de Jure belli lib. 2. c. 7.
• * 1.407

  Bartol. & alii.
• * 1.408

  L. 3. Cod. de Testament, & Cujae. ad dict. Tu. Nevel. 105 in fine, & Go∣thof. ad dict. tit. 105 dict l. 3. C. de Test••••∣ment. l. 23. F. de leg ills. 3.
• * 1.409

  Bald. & alii.
• * 1.410

  Ex libro Jaco∣bi Regis.
• * 1.411

  Seneca, Cujac. ad tit. Cod. de quadr. pesc. vip.
• * 1.412

  L. 2. S. 4. ne quid in loco pub. Tertul.
• * 1.413

  Grot de jure belli l. 2. c. 7. Glossa ad cap. cum secundum leges, & e••si neces se, de ha. red.
• * 1.414

  Covaruviae.
• * 1.415

  Hotoman. de jur. suc. Reg. & Baldus Carolus Moli∣naeus ad consu∣eludines Paris. Grot. dejure belli. lib. 2. c. 7. n. 22.
• * 1.416

  Grot. de jure belli. lib. 2. c. 14.
• * 1.417

  Gentil. de jure belli. l. 3. c. 22,
• * 1.418

  Tillet. Bodin.
• * 1.419

  Paulus Aemili∣us. Thuanus & Car. Molinaeus ad Consuetud. Paris.
• * 1.420

  Lord Chancel. case of the Postnati.
• * 1.421

  Aquinas.
• * 1.422

  Augustinus.
• * 1.423

  Covsruvias.
• * 1.424

  L 19 de Civ. Dei. cap. 15.
• * 1.425

  Servitus est contra jus naturae pro∣priè quoed statum innocentiae, quò ad statum post peccaium non est con tra jus naturale; Imò servitus a∣liqua, saltem quo ad statum post pec∣catum, dici potest secundum jus na∣turale, quatenus est quaedam paena determinate jure humano pro delicto, quod jure naturae castigandum est, ut sentis Thomas & Navarrus.
• † 1.426

  As did those ten Tribes who u∣surped 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. Ho∣sea 8.4.
• * 1.427

  Genes. 14. Deut. 17.
• * 1.428

  Genesis 36. Deut. 14. De Civit Dei lib. 16. c 17. &c. 3.
• * 1.429

  Causa 14. quaest. 5. cap. 9.
• * 1.430

  Salust. Tacit. lib. 3. Ann.
• * 1.431

  Livius lib. 1. Judges 9.2.
• * 1.432

  The mise∣rable conditi∣on of the People is de∣clared 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.
• * 1.433

  Soto de just. & jure lib. 1.9.1. artic. 3. Suarez. de le∣gib. lib. 3. c. 3. & 4. & alii.
• * 1.434

  Suarez. & a∣lii.
• * 1.435

  Institut. de jur. nat. & gent. & tit. F. de bist. jur. l. 1. & l. 2.
• * 1.436

  Deutr. 20.12.
• * 1.437

  Aristot. Xeno∣pbon. Clem. Alexand. l. 5. F. de acquir. rer. dom.
• * 1.438

  The Con∣queror 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 other∣wise; for a citie taken by conquest, saith Bartol. & Bald. non efficitur serva, sed subdi∣ta 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.
• * 1.439

  L. 28. F. de verb. signif. L. 32. F. de legibus.
• * 1.440

  Bracton. Bo∣din. Capolla & alii.
• * 1.441

  L 1 F. de aqua l. 1. Cod. de servitutib. L. 56. lib. de Feudis.
• * 1.442

  Antiquitàs non hoc jus in maria & flumina & venationes sibi ac∣cipiebant finitimi principes, ut nunc, verum propter impenses & sollicitu∣dines principum crescentes, merite in∣ter Regalia reducuntur, qua ab initio erant communia: Tholosanus de Re∣pub. lib. 9. c. 1. num. 29. Mare & litora maris sunt ad usum communem, jure nature & gentium proprietas ma∣ris est nullius, licet protectio, juris∣dictio & Imperium sit penes Reges. l. 3. F. ne quid in loce pub. piscationis reditus, Gabella, & vectigalie con∣sueta & moderate, sunt inter Rega∣lia, quasi Coronae debita, ut laborum praemia, & Regibus, Regnisque tu∣endis servientia: ut dicunt Interpre∣tes ad titulum, quae sunt Regalia: in lib. Feudelium, Imperiorum jura, ut Aristides ait, hujusmodi sunt, ut ea non ex damnoprivatorum, sed expu∣blica utilitate, Imperii vi & necessi∣tate mesiamur.
• * 1.443

  Gothof. & a∣lii. ad L 14. F. de adquir. rer. dom.
• * 1.444

  Rhodericus Suarius de u∣su maris & a∣lii.
• * 1.445

  L. 9. & Go∣thof. de lege Rhodia. Livius lib. 30.
• * 1.446

  Thucydides lib. 7. Plutarch in Pomp.
• * 1.447

  Baldus & Glossa.
• * 1.448

  L. 1. S. 17. F. de Flumin. L. 3. l. 4 F. ne quid in loco pub.
• * 1.449

  L. 6. F. de Just. & ju. Guiac. ad tit. F. de just. & jure.
• * 1.450

  Cujacius. Plautus. Plinius. L. 1. F. de just. & ju. Cujacius.
• * 1.451

  L. 32. F. de le∣gibus.
• * 1.452

  institut. de ju∣re gent.
• * 1.453

  Tillet. Duck de usu juris Civilis, & alii.
• * 1.454

  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.
• * 1.455

  Judges 11.
• * 1.456

  Livius lib. 35.
• * 1.457

  Gentilis & Grot de jure belli.
• * 1.458

  L. 23. Cod. de Sac. Eccl. Novel. 9.
• * 1.459

  Novel. 131. c. 6. Thuanus lib. 101. Molinaus & alii.
• * 1.460

  L. 1. F. de u∣sucap.
• * 1.461

  Regulae Juris Canon.
• * 1.462

  Z. 46. F. de ad∣quir. rer. dom.
• * 1.463

  L. 2. F. de. e∣rigine Juris & tit. God de veteri jure enuclean.
• * 1.464

  L. 55. F. de re jud.
• * 1.465

  Novel. 109.
• * 1.466

  Huntingdon.
• * 1.467

  Henric. de Kinghton & Joh. de Bramp∣ton.
• * 1.468

  Malmesbury.
• * 1.469

  Ingulfus. Malmesb.
• * 1.470

  Polid. Virgil.
• * 1.471

  Edmeru••. Hun∣tingdon. H••veden.
• * 1.472

  Innocent. Bal∣dus. Archia∣dic. ad C. ad∣modum Extra∣vag. de renun∣ciat. Peregrin. de jur. Fisci lib. 1. tit. 2. & 3. L. 27. S. 2. L. 22. S. ult. Mandati F. Sote de Just. & jure, lib. 4. quaest. 4. art. 1. Suarez. de le∣gib. l. 3. c. 4. Glossa ad Cle∣ment. tit. de Beptismo. Aquinas se∣cund. secund. quaest. 42. ar∣tic. 2. Mariana de Regis institut. lib. 1. c. 6 &c. 9.
• * 1.473

  How can the Subjects have juris∣diction over the Soveraign Prince qui est fons omnis jurisdictionis, à quo jurisdictiones per concessiones, com∣missiones & confirmationes fluent, ac per appellationes, querelas, & nullitates ad eum refluan? Bald. & Bracton noster.
• * 1.474

  Suarez de le∣gib. & alii. secund. secun∣dae. quaest. 10. artic 10. & quaest. 12. ar∣tic. 2.
• * 1.475

  In Rege Eth∣nico vera po∣testas est jure gentium, idque fine ordine ad potestatem Ec∣clesiasticam: Dominia ut in fide non fun∣dantur, sic in fidelitate non evertuntur: Privabit Cen∣sure Pontificis, societate fide∣lium, quà fide∣les suni, bonum illud Spirituale & ab Ecclesia; non privabit obedientia sub∣ditorum, quà subditi sunt: bonum hoc civi∣le est, nec ab Ecclesia. Tor∣tura Tor••••: E∣piscop. Cicestri∣ens.
• * 1.476

  Rotula Par∣lamenti.
• * 1.477

  Baldus & a∣lii, cum Legi∣stis Anglicanis
• * 1.478

  Coke case Post∣nati.
• * 1.479

  Thuanus lib. 105.
• * 1.480

  Seneca.
• * 1.481

  Thuan. lib. 97.
• * 1.482

  Baldus & Pe∣regrin. de Ju∣re Fisci. Gentil. de Ju∣re bell.
• * 1.483

  Ayala & Grot. de jure bel.
• * 1.484

  Gentil de le∣gationibus.
• * 1.485

  Dionys. Hali∣car. Livius.
• * 1.486

  Grot. de Jure belli.
• * 1.487

  Procopius.
• * 1.488

  Livius.
• * 1.489

  Tacitus.
• * 1.490

  Tacitus. Florus.
• * 1.491

  L. 21. F. de Captivis.
• * 1.492

  Comines. Bo∣din.
• * 1.493

  Camdens Re∣mains.
• * 1.494

  Alb. Gen il. disput. ad leg. Jul. Majesta∣tis & de jus. belli lib. 3. cap. 23. Grot. de Juce belli lib. 2. cap. 16.
• * 1.495

  Grot. de jur. bel. lib. 2. c. 16. L. 38. F. de solutionibus.
• * 1.496

  L. 9. F. ad exhib.
• * 1.497

  L. 13. F. de verb. signif. si sit I∣dentitas materiae; diversitas formae, res diversa esse dicitur. ut L. 18. S. 3. de Pignorat. act. si sublatum sit ae∣dificium; & eadem specie & quali∣tate reponatur alterum, si quis stricti∣ù interpretetur, aliud est quod sequen∣ti loco ponitur. L. 20. S. 2. F. de∣servitut. urb.
• * 1.498

  L. 11. L. 12.13.14. De ex∣ceptione rei Judicatae mu∣tatio persona∣rum aliam at∣que aliam rem facit. L. 22. De excep. rei Judicatae.
• * 1.499

  Gentil. de jure belli. lib. 1. C. 16.
• * 1.500

  Thucydides l. 2
• * 1.501

  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 re∣ceive the Traitors fugitives or re∣bels 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.
• * 1.502

  Livius lib. 2.
• * 1.503

  Justin.
• * 1.504

  Livius lib. 4.
• * 1.505

  Ovidius.
• * 1.506

  L. 49. F. ad leg. Aquil. l. 3. F. de Incendio. l. 7. F. quod vi aut clam. Salust. Cicero.
• * 1.507

  Salust. Cicero.
• * 1.508

  Livius.
• * 1.509

  Livius lib. 34.
• * 1.510

  King James book to his Son.
• * 1.511

  Livius. Plu∣tarch.
• * 1.512

  Distinct. 63. c. 1. &c. 12. &c. 8. &c. 36.
• * 1.513

  Acts 1.15. & 6.2. Cpyrianus.
• * 1.514

  Commines.
• * 1.515

  Mat. Paris. Hoveden & alii.
• * 1.516

  S. Rob. Co∣tons collections
• * 1.517

  Cujacius, & Pet. Faber. Semest. lib. 1. cap. vult.
• * 1.518

  Institut. & Jura nat. & gens. & Lust. Cod. de legibus Tit. F. de ori∣gine Juris. Lib. Feud. constitut Lethae∣ri. & Fred. Imperator.
• * 1.519

  De. Repub.
• * 1.520

  Grov de Jure belli lib. 1. C. 3.
• * 1.521

  L. 8. F. de Constitutionib. L 1. Cod. de legib.
• * 1.522

  Arumns ad aur. bul. non obstat quod di∣citur in L. 1. F. de constitu¦tionibus. Quod Principi placu∣it, legis habet vigorem, quia sequitur in fine legis non quie∣quid de volun∣tate presump∣tum est; sed qùod concillo magistratum suerum, Rege au••••ritatem praestante & habita super hoc deliberatio∣ne & tractatu, recle fuerit de∣finitum. Bracton & Fleta. L. 8. Cod de Legibus. Bartolus & a∣li. L. 1. F. de le∣gibus.
• * 1.523

  Ld. Chanc. Sir Edward Coke postnati.
• * 1.524

  Tacitus.
• * 1.525

  Psalm 99.
• * 1.526

  Tacitus. L. 4. Cod. de Delatorib.
• * 1.527

  L. 3. Cod. de Injuriis.
• * 1.528

  As was the case of Emp∣son and Dudley in the time of Henry the Seventh. Corielanus was banished Rome, ut nimius exactor Legum: Halicarnase. 8. summum jus summae crux; such men for their reward, are often made publici odii piaculares victima.
• * 1.529

  Valerius Maxi∣mus lib. 4. c. 1
• * 1.530

  Guicciardine
• * 1.531

  Livius.
• * 1.532

  Livius Grot. de jure belli.
• * 1.533

  Livius lib. 2.
• * 1.534

  Grot. de jure belli lib. 2. C, 14.
• * 1.535

  Cicero. L. 1. F. de Just & jure.
• * 1.536

  L. 1 l. 9 l. penul. Cod. de legibus Novel. 82. cap. 10. L. 12. F. qui et •• quibus. Cuiae. & alii ad dic. l. 12. Faber adre∣gul. Juris.
• * 1.537

  L. 91. F. de verb. oblig.
• * 1.538

  Plinius.
• * 1.539

  Tacitus.
• * 1.540

  Baldus. Innocent. Alci∣at. ad l. 2. Cod. de in jus voeando & alii. De plenitudi. ne potestatis Pontificis, non oportet sermo∣nem effundere, quia superfluum est solem faci∣bus adjuvare. Extravag. Gloss. ad tit. 1. Plinius ad Trajan. Imp.
• * 1.541

  L. 11. F. de Ju∣stitia.
• * 1.542

  Kings have their proper and peculiar rights assigned by God who commanded Samuel to shew the people the manner of the King that shall raign over them, rationem istam 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.
• * 1.543

  Thuanus.
• * 1.544

  Thuan. l. 100.
• * 1.545

  Comines.
• * 1.546

  Livius lib.
• * 1.547

  Thuanus.
• * 1.548

  F pist. ad lib. de Repub.
• * 1.549

  Isaiah. 19.
• * 1.550

  I will fill all the inhabi∣tants of the land with drunkenness; I will dash them one a∣gainst ano∣ther, even the futhers and the sons toge∣ther. I will not have mer∣cy but destroy them: Jere∣miah, 13. verse. 13.14. Polybius. Ma∣chiavil. lib. 3. C. 33. discur.
• * 1.551

  Flnus. Livius.
• * 1.552

  Augustin, de Civitate Dei lib. 1 C. 30. lib. 2. C. 18. & lib. 3. C. 21. It was not po∣verty and want, but pride, abun∣dance of all things, and too much ease, that caused the sin, and destruction of Sodom. Eze∣chiel. 16.49. Tacitus. Tacitus.
• * 1.553

  Livius. Au∣gustinus.
• * 1.554

  Valerius Max∣imus. Appian. Augustin. de Civit Dei.
• * 1.555

  Seneca.
• * 1.556

  August. de Ci∣vit Dei lib 3. C. 7.27. & 28.
• * 1.557

  Florus.
• * 1.558

  Plutarch. in Sylla & Ma∣rius.
• * 1.559

  Habakkuk.
• * 1.560

  L. 1. F de le∣gibus. L. 11. F de incendio L. 2. F. de Term. moto. Cujacius. Levit. 22. & Levit. 10. Salvianus
• * 1.561

  Salvianus
• * 1.562

  Facinus pro∣digiosum est, u∣bi id ipsum in quo Christo in∣juriam faciunt, dicunt se ob Christi nomen facturos, au∣thoremque sui sceleris quo∣dammodo Deum faciunt. Salvl∣anus. Aquinas. Co∣varuvias. Navari Manu∣ale.
• * 1.563

  L. 4. S. 14. F de vi. ben. rapt
• * 1.564

  Cuiacius. L. 10. F. quem fraud. Credi∣teris.
• * 1.565

  Cujacius & a∣lii
• * 1.566

  L 8. F ad leg. Aqaeit.