Judges in the case of Ship-money had given it to the King sure when they denied it to him they did not intend it to themselves 1. Hee tells us In them resides the reason of the State And that the same reason and Judgement of the State which first gave this government its being and constitution therefore all the people are to be led by it and submit to it as their publique reason and Judgement I answer If by state he meane the whole Kingdome I say the reason of the two Houses divided from the King is not the reason of the Kingdome for it is not the Kings reason who is the head and chiefe in the Kingdome If by state be meant the people then it must be granted that as farre forth as they represent them their reason is to be accounted the reason of the Kingdome and doth binde so farre forth as the publique reason of the Kingdome can binde after they have restrained their reason and will to a condition of subjection so that put case it be the reason of the state yet not the same which first gave this Government its being for then it was the reason of a State yet free and to use their reason and Judgement in ordaining a Government but now the reason of a State bound by Oath to a Government and not at liberty to resolve againe Or to assume a supreme power of judging distructive to the frame of Government they have established and restrained themselves unto Their reason is ours so farre as they are an ordained representative body But I have before demonstrated that in this frame the Houses could not be ordained a legall Tribunall to passe Judgement in this last case for then the Architects by giving them that Judicature had subordinated the King to them and so had constituted no Monarchie 2. He argues the Parliament being the Court of supreme Judicature and the Kings great and highest Councell therefore that is not to be denied to it which inferiour Courts ordinarily have power to do viz To judge matters of right betweene the King and Subject Yea in the highest case of all The Kings power to tax the subject in case of danger and his being sole Judge of that danger was brought to cognizance and passed by the Judges in the Exchequor I answer 1. There is not the same reason betwixt the Parliament other courts In these â—he King is Judge the Judges being deputed by him and judging by his authority so that if any of his Rights be tried before them it is his owne Judgement and he judges himselfe and therefore it is fit he should be bound by his owne sentence But in Parliament the King and People are Judges and that not by an authority derived from him but originally invested in themselves So that when the two Estates judge without him in any case not prejudged by him it cannot be called his Judgement as that of the other Courts being done by his authority and if he be bound by any Judgment of the two Estates without him he is bound by an externall power which is not his owne that is he is subordinated to another power in the State where he is supreme which is contradictory Secondly in other Courts if any case of right be judged 'twixt him and the subject they are cases of particular Rights which diminish not Royalty if determined against him Or if they passe cases of generall right as they did in that of Ship-money it is but declaratively to shew what is by Law due to one and the other yet their Judgement is revocable and liable to a repeale by a superiour Court as that was by Parliament But if the Kings Prerogatives should be subjected to the Judgement of the two Estates the King dissenting then he should be subject to a sentence in the highest Court and so irremediable a Judicatory should be set up to determine of his highest Rights without him from which he could have no remedy Thus maine causes may bee alledged why though other Courts doe judge his Rights yet the two Estates in Parliament without him cannot and it is from no defect in their power but rather from the eminency of it that they cannot If one deputed by common consent of three doth by the power they have given them determine controversies betweene those three it is not for either of them to challenge right to judge those cases because one who is inferiour to them doth it Indeed if the power of the two Houses were a deputed power as the power of other Courts is this Argument were of good strength but they being concurrents in a supreme Court by a power originally their owne I conceive it hard to put the power of finall Judgement in all controversies 'twixt Him and them exclusively or solely into their hands If it be demanded then how this cause can be decided Sect. 3 and which way must the People turne in such a contention What be done in such a Contention I answere If the non-decision be tolerable it must remaine undecided whiles the Principle of legall decision is thus divided and by that division each suspends the others power If it be such as is destructive and necessitates a determination this must be made evident and then every Person must aide that Part which in his best Reason and Judgement stands for publike good against the destructive And the Lawes and Government which he stands for and is sworne to justifies and beares him out in it yea bindes him to it If any wonder I should justifie a power in the two Houses to resist and command aide against any Agents of destructive commands of the King and yet not allow them power of judging when those Agents or commands are destructive I answere I doe not simply deny them power of judging and declaring this but I deny them to be a legall Court ordained to judge of this case authoritatively so as to bind all People to receive and rest in their judgement for conscience of its authority and because they have Voted it 'T is the evidence not the power of their Votes must bind our Reason and Practice in this case We ought to conceive their Votes the Discoveries made by the best eyes of the Kingdome and which in likelihood should see most But when they Vote a thing against the proceedings of the Third and supreme Estate our Consciences must have evidence of Truth to guide them and not the sole authority of Votes and that for the Reason so oft alledged CHAP. VIII The contention now in being is debated and the readiest meanes of Reconcilement proposed THus have I for my owne satisfaction and the Conscience Sect. 1 of every moderate and impartiall man who will peruse the same set downe what I verily conceive to be the truth concerning those high matters first of Monarchy in generall and then of this of England and have given my determination concerning all the weighty Questions which
reserved for one it was concluded that these two Estates should be Assemblies of his Subjects sworne to him and all former Lawes the new which by agreement of Powers should be enacted were to be his Lawes and they bound to obey him in them as soone as established And being supposed that he who was to governe by the Lawes and for the furtherance of whose Government the new Lawes were to be made should best understand when there was need and the assembling and dissolving the two Estates meeting was a power of great priviledge it was put into the Princes hand by writ to convocate and bring to existence and to adjourne and dismisse such meetings Sixthly in processe of time Princes not caring much to have their Government looked into or to have any power in act but their own took advantage of this power of convocating those Estates and did more seldome then need required make use of it whereon provision was made and a time set within which an Assembly of Parliament was to be had Now when you have made these suppositions in your minde you have the very modell and platforme of this Monarchy and we shall easily find what to answer to the arguments before produced on either side For first it is his Parliament because an assembly of his subjects convocated by his Writ to be his Councell to assist him in making Lawes for him to govern by yet not his as other Courts are altogether deriving their whole authority from the fulnesse which is in him Also his power of assembling and dissolving proves him thus far above them because in their existence they depend on him but their power and authority quoad specificationem the being and kind of it is from originall constitution for they expect no Commission and authority from him more then for their meeting and reducing into existence but existing they worke according to the priviledges of their constitution their acts proceeding from their conjunct authority with the Kings not from its subordination to the Kings The oath of Allegeance binds them and respects them as his subjects to obey him governing according to established Lawes it supposes and is built upon the foundations of this Government and must not be interpreted to overthrow them he is thereby acknowledged to be supreme so far as to rule them by Lawes already made not so far as to make Lawes without them so that it is no derogation to their power and I beleeve of these things none can make any question Therein consists the accurate Judgement of the Contrivers of this Forme they have given so much into the hands of the soveraign as to make him truly a Monarch and they have reserved so much in the hands of the two Estates as to enable them to preserve their owne liberty CHAP. IIII. Quest 4 How farre forth it is mixed and what parts of the Power are referred to a mixed Principle I Shall be the briefer in this because an answer to it may be easily collected out of the precedent Questions for he who knowes how farre this Government is limited will soon discerne how farre it is mixed for the Limitation is mostly affected by the mixture Three points of mixture but distinctly I conceive that there are three parts of the power referred to the joint concourse of all three Estates So that either of them not consenting or suspending its influence the rest cannot reduce that power ordinarily and legally into act The first is the Nomotheticall power understanding by it the power of making and authentick expounding Lawes so that I believe an act cannot have the nature and forme of a Law of the Land if it proceed from any one or two of these without the positive concurrence of the third Secondly The power of imposing taxes and payments on mens estates that the King by himself cannot assume mens properties by requiring impositions not granted him by Law is often confested And that the other Estates cannot doe it by themselves I conceive it as unquestionable For it were strange to give that to the secondary and assisting Powers which is denied to the Soveraigne and principall If it be objected that every Corporation electing Deputies and authorizing them to be vice totius Communitatis do thereby grant them power and entrust them as to make laws to bind them so to dispose of any part of their estate either by rate or payment for the publique good I answer that they are by that deputation enabled as for one so for the other that is according to the fundamentall usuage of the Kingdome that is by the joint consent of the other estates for though the house of Commons is chosen by the people and they represent the people yet the representation doth not give them a power which was not in the people Now the people have no power to doe an act which either directly or by consequence doth put it in the will and pleasure of any one or two of the Estates to overthrow the other But this power of opening and shutting the Purse of the Kingdome is such a power that if it be in one or two of the Estates without the third then they by that power might necessitate that other to doe any act or disable it from its owne defence This and the Legislative power have such a neernesse that they cannot be divided but must be in the same subject this is so great a power that put it absolutely in any Estate single you make that Estate in effect absolute making the rest dependent and beholding to it for their subsistence Thirdly the power of dispatching the affaires of the Kingdome which are of greatest difficulty and weight the ardua regni which the Writ for convocating the other Estates doth mention supposing thereby that such difficulties are not to be dispatched by the power of one alone for if they were why then are the two other convocated to be assisting I acknowledge many matters of great moment may be done by the Regall power and in such case it may be said that the other Estates are gathered ad molius traâ—sigendum that the advise and sense of the Community may be for direction But I conceive there be two sorts of affaires which ought not to be transacted without the concurrence of all three First such as concerne the publike safety and weale so far as stable detriment or advantage comes to the whole body by the well or ill carriage thereof for then there is the same reason as in making new Lawes For why was not the power of making any new Lawes left in the hands of one but reserved for the concurrence of all three save because the end of the Architects was that no new thing which was of so much concernment as the stable good and dammage of the Kingdome should be introduced without the consent and advice of the whole so that if any businesse be of that moment that it is equipollent to a Law in
a change of Government for that includeth the greatest resistence and violation of the person and power of the Monarch the lawfullnesse of which I utterly disclaime Thirdly it is not ever accompanied with the evills of Civill Warre But when the Princes Will findes enough Instruments of their Countreys ruine to raise it And then the mischife of that war must light on those which raise it But suppose it may ensue yet a temporary evill of war is to be chosen rather then a perpetuall losse of liberty and subversion of the established frame of a Government In the fourth I deny the parity of reason for the two Houses are bodies constituted and endowed with legislative authority and trust of preservation of the frame by the Fundamentalls of the Kingdome which the people out of those Houses are not Againe the Government being composed of a threefold consenting power one to restraine the exorbitance of another All three together are absolute and equivalent to the power of the most absolute Monarch The concurrent Will of all three makes a Law and so it is the Kingdomes Law To the last I answer In every State some must be trusted and the highest trust is in him who hath the Supreame power These two the Supreame Trust and the Supreame Power are inseperable And such as the power is such is the trust An absolute power supposes an absolute trust A Power allayed with the annexion of another power as here it is supposeth a trust of the same nature A joynt trust yet saving the supremacie of the Monarch so far forth as it may be saved How farre forth the sword is in the hand of the Monarch and not be absolute and the others authority nullified It may be further argued that it being the Prerogative Royall to have the managing of the sword that is legall force in the Kingdome none can on any pretence whatever use lawfull force either against him or any but by his Will for it is committed to him by law and to none but whom he assignes it to so that the Lawes of the Kingdome putting all power of force and Armes into his trust have placed him and all those who serve him in a state of irresistiblenes in respect of any lawfull force This is a point much stood on and on this ground the Parliament now assuming the disposing of the Militia by an Ordinance it is complained on as a usurping of what the Law hath committed to the King as his Prerogative The opposing of which Ordinance by a Commission of Array was the beginning of this miserable Civill-Warre I will distinctly lay down my Answer hereto submitting it to every impartiall judgement Pos 1 1. The power of the Sword being for defence of the Lawes by punishing violators and protecting subjects it is subservient to Government and must needs belong to him who is entrusted with the Government as a necessarie requisite without which he cannot performe his trust Pos 2 2. As it is an appendix to the power of Government and goes along with it so it goes under the same termes belonging to the Prince as the other doth sc absolutely to use at will where the Monarchie is absolute or with limitation to use according to Law where the Monarchy is limited so that in this Government the Armes and sword of the Kingdome is the Kings to a defined use committed to him viz For defence of the Lawes and Frame of Government established and not for arbitrary purposes or to enable Ministers to execute commands of meer Will Pos 3 3. The two Houses in virtue of the Legislative authority in part residing in them are interested in the preservation of Lawes and Government as well as the King And in case the King should misimploy that power of Arms to strengthen subverting Instruments Or in case the Lawes and government be in apparent danger the King refusing to use the sword to that end of preservation for which it was committed to him I say in this case the two Estates may by extraordinary and temporary Ordinance assume those Armes wherewith the King is entrusted and performe the Kings trust And though such Ordinance of theirs is not formally legall yet it is eminently legall justified by the very intent of the Architects of the Government when for these uses they committed the Armes to the King And no doubt they may command the strength of the Kingdome to save the being of the Kingdome for none can reasonably imagine the Architectonicall Powers when they committed the power of government and Armes to one to preserve the Frame they had composed did thereby intend to disable any much lesse the two Estates from preserving it in case the King should faile to doe it in this last need And thus doing the Kings Worke it ought to be interpreted as done by his Will because as the Law is his Will so that the Law should be preserved is his Will which he expressed when he undertooke the government 'T is his deliberate Will and ought to be done though at any time he oppose by an after-Will for that is his sudden Will as Doctor Ferne himselfe Sect. 1. doth teach us to distinguish CHAP. VI. In what cases the other Estates may without or against Quest 6 the Kings Personall consent assume the Armes of the Kingdome WHo ever were the Authors of that Booke lately Sect. 1 published stiled Whether it be lawfull to take up armes against the Magistrate perverting his power to a wrong end Scripture and Reason pleaded for defensive Armes have laid new and over-large grounds for resistence Two Assertions they endevour to maintaine First those Governours whether supreme or others who under pretence of authority from Gods Ordinance disturb the quiet and peaceable life in Godlinesse and Honesty are farre from being Gods Ordinance in so doing Sect. 3. Secondly This Tyranny not being Gods Ordinance they which resist it even with Armes resist not the Ordinance of God Hereon Sect. 4. they free Christians even in the Apostles time and so under the Romane Emperours or any other Government from necessity of passive subjection in case of persecution affirming that the Christians in those first Persecutions had they been strong enough might have used Armes for defence against the Tyranny of their Emperours Their ground is from the Reasons used by the Apostle Rom. 13. where he commands subjection forbids resistence to the higher power because they are Gods ordinance his Ministers for praise to well-doers for terrour to evill doers But I must professe my self to dissent from them in this opinion conceiving that the Apostle in urging those Reasons drawne from the due ends of Power doth intend to presse them to subjection by shewing them what benefit comes to men by authority in its due use and not to shew them how far they are bound to be subject and in what cases they may resist For had he such a meaning at that time when the Governours
did altogether crosse those ends of their Ordination he had taught them rather a Doctrine of Resistence then Subjection shall we conceive that hee would presse subjection to Powers in the hands of Heathens and Persecutors if he had not intended they should passively be subject unto them even under those Persecutions Rather I approve the received Doctrine of the Saints in ancient and moderne times who could never finde this licence in that place of the Apostle and doe concurre with Master Burroughs Answ to Dr. Ferne Sect. 2. professing against resistence of authority though abused If those saies he who have power to make Lawes make sinfull Lawes and so give authority to any to force obedience we say here there must be either flying or passive Obedience And againe We acknowledge we must not resist for Religion if the Lawes of the land be against it But what doe they say against this In making such Lawes against Religion the Magistrates are not Gods ordinance and therefore to resist is not to resist Gods ordinance As an inferiour Magistrate who hath a Commission of Power for such ends is resistible if hee exceed his Commission and abuse his Power for other ends so Princes being Gods Ministers and having a deputed Commission from him to such ends viz. the promotion of godlinesse Peace Justice if they pervert their power to contrary ends may be resisted without violation of Gods ordinance That I may give a satisfactory answere to this which is the summe of their long discourse I must lay it downe in severall Assertions First I acknowledge Gods ordinance is not onely Power Assert 1 but Power for such ends sc the good of the People Secondly it is also Gods ordinance that there should be Assert 2 in men by publike consent called thereto and invested therein a power to choose the meanes the Lawes and Rules of government conducing to that end and a power of Judging in relation to those Lawes who be the well doers which ought to be praised and who the evill doers who ought to be punished This is as fully Gods ordinance as the former for without this the other cannot be performed Thirdly when they who have this finall civill Judicature Assert 3 shall censure good men as evill doers or establish iniquity by a Law to the encouragement of evill doers in this case if it be a subordinate Magistrate doth it appeale must bee made as Saint Paul did to the supreme if it be the supreme which through mistake or corruption doth mis-censure from whom there lyes no Civill Appeale then without resistence of that Judgement wee must passively submit And he who in his owne knowledge of innocency or goodnesse of his cause shall by force resist that man erects a Tribunal in his owne heart against the Magistrates Tribunal cleares himselfe by a private Judgement against a publike and executes his owne sentence by force against the Magistrates sentence which hee hath repealed and made void in his owne heart In unjust Censures by the highest Magistrate from whom there is no Appeale but to God the sentence cannot be opposed till God reverse it to whom we have appealed In the meane time vvee must suffer as Christ did notwithstanding his Appeale 1 Pet. 2.23 and so must wee notwithstanding our Appeale 1 Pet. 4 19. for he did so for our example If an Appeale to God or a censure in the Judgement of the condemned might give him power of resistence none would be guilty or submit to the Magistrates censure any further â—hen they please I desire those Authors before they settle their judgement in such grounds which I feare will bring too much scandall to weigh these particulars First their opinion takes away from the Magistrate the chiefe part of Gods ordinance sc povver of definitive judgement of Lawes and Persons who are the good and who the bad to be held so in Civill proceedings Secondly they justifie the Conscience of Papists Heretickes and grossest Malefactors to resist the Magistrate in case they be perswaded their cause is good Thirdly they draw men off from the commands of Patience under persecution and conforming to Christ and his Apostles in their patient enduring without verball or reall opposition though Christ could not have wanted power to have done it as he tells Peter Fourthly they deprive the Primitive and Moderne Martyrs of the glory of suffering imputing it either to their ignorance or disability Fifthly it is a wonder that sith in Christs and his Apostles time there was so much use of this power of resistence they would by no expresse word shew the Christians this liberty but condemne resistence so severely Sixthly there is in the case of the Parliament now taking up Armes no need of these offensive grounds Religion being now a part of our Nationall Law and cannot suffer but the Law must suffer with it Sect. 2 Now to the proposed Question I answere first Negatively sc 1. 1. When arms ought not to be assumed It ought not to be done against all illegall proceedings but such which are subversive and unsufferable Secondly not publike resistence but in excesses inducing publike evils for to repell private injuries of highest nature with publike hazzard and disturbance will not quit cost unlesse in a private case the common Liberty be strooke at Thirdly not when the government is actually subverted and a new forme though never so injuriously set up and the People already engaged in an Oath of absolute subjection for the remedy comes too late and the establishment of the new makes the former irrevocable by any justifiable power within the compasse of that Oath of God This was the case of the Senate of Rome in Saint Pauls time 2. When they may be assumed Secondly affirmatively I conceive three cases when the other Estates may lawfully assume the force of the Kingdome the King not joyning or dissenting though the same be by Law committed to him First when there is invasion actually made or imminently feared by a forraigne Power Secondly when by an intestine Faction the Lawes and Frame of government are secretly undermined or openly assaulted In both these cases the Being of the Government being endangered their trust binds as to assist the King in securing so to secure it by themselves the King refusing In extreme necessities the liberty of Voices cannot take place neither ought a Negative Voice to hinder in this exigence there being no freedome of deliberation and choice when the Question is about the last end Their assuming the sword in these cases is for the King whose Being as King depends on the Being of the Kingdome and being interpretatively his act is no disparagement of his Prerogative Thirdly in case the Fundamentall Rights of either of the three Estates bee invaded by one or both the rest the wronged may lawfully assume force for its owne defence because else it were not free but dependent on the pleasure of the other Also the suppression of
evident that a Court is the seat and subject of Authority and power and not barely of counsell and advice Object 2 Secondly the two Houses together with the King are the supreme Court of the Kingdome but taken divisely from the King it is no Court and consequently hath no power Sol. Suppose them no entire Court divided from the King yet they are two Estates of the three which make up the supreme Court so that they have a power and authority though not complete and sufficing to perfect an Act without the concourse of the third For it appeares by the Acts of that Court that every of the three Estates hath a Legislative power in it every Act being enacted by the Kings most excellent Majesty and by the Authority of the Lords and Commons assembled in Parliament Sect. 3 Thirdly they have an authority but in subordination to Object 3 the King and derived from him as his Parliament Indeed this is a maine Question and hath very weighty Arguments on both sides Whether the authority of the two Houses be derived from the King viz. Whether the authority of both the Houses be a subordinate authority and derived from the King as its originall Three Reasons seeme strong for the affirmative First because it is his Parliament so called and acknowledged If his Court then the power whereby they are a Court is his power derived from him as the power of other Courts is Secondly because he hath the power of calling and dissolving it Thirdly because he is acknowledged in the Oaths of Allegeance and Supremacy to be the Head and of supreme authority in the Kingdome and all subject to him And whereas some make answere that he is Singulis major but Vniversis minor Treatise entitituled A fuller Answer to Dr. Ferne. so the Answerer to Doctor Ferne I wonder that the Proposition of the Observator that the King is Vniversis minor should be so much exploded Every member scorsiâ—â— is a subject but all collection in their houses are not And hee sayes simply the Houses are co-ordinate to the King nor subordinate that the Lords stile Comites or Peeres implies in Parliament a co-ordinative society with his Majesty in the Government I conceive this Answerer to avoid one extreme falls on another for this is a very overthrow of all Monarchy and to reduce all Government to Democracy For looke where the apex potestatis is there is the Government Also it is against Common Reason For the King is he not King of the Kingdome and what is the Kingdome but all united all the particulars knit together in one body politick so that if he be King of the Kingdome he is Vniversis major too for the King is major and the Kingdome is the united universe of the People Thus those expressions are some of them false some though secundum quid true yet spoken simply and in that manner are scandalous and incompatible to Monarchy Thus you see what may be said on the one side to prove the King to be the originall of all power even of that which is in the Houses of Parliament assembled On the other side are as weighty Arguments to prove the contrary viz. That the two Houses authority is not dependent nor derived from the Royall power First the authority of the Houses being Legislative is the supreme and so cannot bee derived Three concurrent Powers producing one supreme act as con-cause joint causes of the same highest effect cannot have a subordination among themselves in respect of that casualty it not being imaginable how a power can cause the supreme effect and yet be a subordinate and derived power Secondly the end of constituting these two Estates being the limiting and preventing the excesses of the third their power must not be totally dependent and derived from the third for then it were unsuitable for the end for which it was ordained For to limit an Agent by a power subordinate and depending on himself is all one as to leave him at large without any limitation at all Thirdly that which hath beene spoken of a mixed Monarchy doth fully prove that the two other powers which concurre with the Monarch to constitute the mixture must not be altogether subordinate to it and derived from it I must professe these Reasons to prevaile with me that I cannot conceive how the authority of the two Houses can in the whole being of it be a dependent and derived power That we may find out the truth amidst this potent contradiction Sect. 4 of both sides Resolution of the Question recourse must be had to the Architecture of this Government whereof I must declare my self to be so great an Admirer that what ever more then humane wisedom had the contriving of it whether done at once or by degrees found out and perfected I conceive it unparalleld for exactnesse of true policy in the whole world such a care for the Soveraignty of the Monarch such a provision for the liberty of the People and that one may bee justly allayed and yet consist without impeachment of the other that I wonder how our Forefathers in those rude unpolished times could attain such an accurate composure First then suppose a people either compelled to it by conquest or agreeing to it by free consent Nobles and Commons set over themselves by publike compact one Soveraigne and resigne up themselves to him and his heires to be governed by such and such Fundamentall Lawes there 's a supremacy of power set up though limited to one course of exercise Secondly then because in all Governments after cases will come it requiring an addition of Lawes suppose them covenanting with their Soveraigne that if cause be to constitute any other Lawes hee shall not by his sole power doe that worke but they reserve at first or afterwards it is granted them which is all one a hand of concurrence therein that they will be bound by no Lawes but what they joyne with him in the making of Thirdly because though the Nobles may personally convene yet the Commons being so many cannot well come together by themselves to the doing of such a worke it be also agreed that every Corporation of the Commons shall have power to depute one or more to be for the whole in this publike legislative businesse that so the Nobles by themselves the Commons by their Deputies assembling there may be representatively the whole body having Commission to execute that reserved authority for establishing new Lawes Fourthly because the occasion and need of making new Lawes and authentick expounding the old would not be constant and perpetuall and it would carry an appearance of a Government in which were three Heads and chiefe Powers they did not stablish these Estates to be constantly existent but occasionally as the causes for which they were ordained should emerge and happen to be Fifthly because a Monarchy was intended and therefore a Supremacy of power as farre as possible must be
either of them or the diminishing of their Fundamentall Rights carries with it the dissolution of the Government And therefore those grounds which justifie force to preserve its Being allowes this case which is a direct innovation of its Being and Frame CHAP. VII Where the Legall Power of Finall judging in these cases doth reside Quest 7. in case the three Estates differ about the same IN this Question for our more distinct proceeding some Sect. 1 things are necessarily to be observed First The Question stated that we meddle not here with the judicature of Questions of inferiour nature viz. such as are 'twixt subject and subject or the King and a subject in matter of particular right which may be decided other way without detriment of the publike Frame or diminution of the priviledges of either of the three Estates Secondly difference is to be made even in the Questions of utmost danger First for it may be alledged to be either from without by invasion of forrain Enemies or by a confederacy of intestine subverters in which neither of the three Estates are alledged to be interessed and so the case may be judged without relation to either of them or detriment to their priviledges Here I conceive a greater latitude of power may be given to some to judge without the other for it inferres not a subordinating of any of the three to the other Secondly or else it may be alledged by one or two of the Estates against the other that not contenting it selfe with the Powers allowed to it by the Lawes of the Government it seekes to swallow up or entrench on the priviledges of the other either by immediate endevours or else by protecting and interessing it selfe in the subversive plots of other men Thirdly in this case wee must also distinguish betwixt first authority of raising Forces for defense against such subversion being knowne and evident secondly and authority of judging and finall determining that the accused Estate is guilty of such designe and endevour of subversion when it is denied and protested against This last is the particular in this Question to be considered not whether the People are bound to obey the authority of two or one of the Legislative Estates in resisting the subversive assaies of the other being apparent and self-evident which I take in this Treatise to be cleare But when such plea of subversion is more obscure and questionable which of the three Estates hath the power of ultime and supreme judicature by Vote or sentence to determine it against the other so that the People are bound to rest in that determination and accordingly to give their assistance eo nomine because it is by such Power so noted and declared Determination of the Question For my part in so great a cause if my earnest desire of publique good and peace may justifie me to deliver my minde I will prescribe to the uery Question for it includes a solecisme in government of a mixt temperature To demand which Estate may challenge this power of finall determination of Fundamentall controversies arising betwixt them is to demand which of them shall be absolute For I conceive that in the first part hereof I have made it good that this finall utmost controversie arising betwixt the three Legislative Estates can have no legall constituted Judge in a mixed government for in such difference he who affirmes that the people are bound to follow the Judgement of the King against that of the Parliament destroyes the mixture into absolutenesse And he who affirmes that they are bound to cleave to the Judgement of the two Houses against that of the King resolves the Monarchie into an Aristocracie or Democracie according as he places this finall Judgement Whereas I take it to be an evident truth that in a mixed government no power is to be attributed to either Estate which directly or by necessary consequence destroyes the liberty of the other Yet it is strange to see how in this Epidemicall division of Sect. 2 the Kingdome the Abettors of both parts claime this unconcessible Judgement But let us leave both sides pleading for that which we can grant neither and weigh the strength of their Arguments First Dr. Ferne layes downe two reasons Dissolution of Arguments placing it in the King why this finall Judgement should belong to the Kingâ— 1. Monarchie saies he Sect. 5. settles the chiefe power and finall Judgement in one This Position of his can be absolutely true no where but in absolute Monarchies and in effect his book knowes no other then absolute government 2. Seeing some one must be trusted in every State It is reason saies he Sect 5. the highest and finall trust should be in the higher and Supreame power I presume by finall trust he meanes the trust of determining these Supreame and finall disagreements and accordingly I answer It is not necessary that any one be trusted with a binding power of Judicature in these cases for by the foundations of this government none is yea none can be trusted with it for to intend a mixed government and yet to settle the last resolution of all judgement in one is to contradict their very intention Neither in a constituted government must we dispose of powers according to the guesse of our reason for mens apprehensions are various The Dr. thinkes this power fittest for the King His answerers judge it fittest for the two Houses and give their reasons for it too Powers must there reside where they are de facto by the Architects of a government placed he who can bring a fundamentall Act stating this power in any saies something to the matter but to give our conjectures where it should be is but to provide fuell for contention Dissolution of the â—rguments placing it in the two Houses On the contrary The Author of that which is called A Fuller Answer to that Dr. hath two maine Assertions placing this Judgement in the two Houses 1. The finall and casting result of this States Judgement concerning what these Lawes dangers and meanes of prevention are resides in the two Houses of Parliament saies he p. 10. 2. In this finall resolution of the States Judgement the people are to rest ibidem pag. 14. Good Lord What extream opposition is between these two sorts of men If the maintenance of these extremes be the ground of this warre then our Kingdome is miserable and our Government lost which side soever overcome for I have more then once made it good that these Assertions are destructive on both sides But I am rather perswaded that these Officious Propugners overdoe their worke and give more to them whose cause they plead then they ever intended to assume Nay rather give to every one their due give no power to one of these three to crush and undoe the other at pleasure But why doth this Answer give all that to the two Houses which ere while they would not suffer when the