discover I would every Englishman had it ingraven in his forehead how he stands affected to the Commonwealth We Beetles did see no signes of civill Warre but all of Peace and Tranquillity but the Observer and his Confederates being privy to their own plots to introduce by the sword a new form of Government both into State and Church might easily foresee that they should stand in need of all the strength both in Hull and Hell and Hallifax to second them whereof yet all true Englishmen do acquit the Parliament in their hearts desires though the Observer be still at his old ward shuffling Sir Iohn Hotham out and the Parliament in so changing the state of the question But what weight that consideration hath follows in his next and last Allegation Sir John Hotham is to be looked on as the Actor the Parliament as the Author in holding Hull And therefore it is much wondred at that the King seems more violent against the Actor then the Author but through the Actor the Author must needs be pierced c. And if the Parliament be not virtually the whole Kingdome it selfe If it be not the Supreme Iudicature as well in matters of State is matters of Law If it be not the great Councell of the Kingdome as well as of the King to whom it belongeth by the consent of all Nations to provide in extraordinary cases Ne quid detrimenti capiat Respublica Let the brand of Treason stick upon it Nay if the Parliament would have used this forcible means unlesse petitioning would not have prevailed or if the grounds of their Iealousie were meerly vain or if the Iealousie of a whole Kingdome can be counted vain Let the reward of Treason be their guierdon Hitherto the Observer like the wily Fox hath used all his sleights to frustrate the pursuit of the Hounds but seeing all his fetches prove in vain he now begins to act the Catte and flyes to his one great helpe to leape up into a Tree that is the Authority of Parliament ut lapsu graviore ruat that he may catch a greater fall By the way the Observer forgets how the King is pierced through the sides of Malignant Counsellers Three things are principally here considerâ—…ble First whether Sir Iohn Hotham had any such Command or Commission from the Parliament Secondly if he had whether he ought to have produced it Thirdly supposing he both had it and produced it whether it be valid against His Majesty or whether an illegall Command do justifie a Rebellious Act. To the first of these I take it for granted That a Commission or an Ordinance for Sir Iohn to be a meer Governour of Hull doth not extend to the Exclusion of His Majesty ouâ—… of Hull nor Warrant Sir John to shut the Gares against His Soveraign if it did every Governour might do the same and subordinate Command might trample upon Supreme Neither can a posteriour approbation warrant a precedent excesse for this is not to authorise but to pardon the sole power whereof is acknowledged to be in His Majesty without any sharers To the first question therefore the answer is Sir John Hotham had no such Warrant or Commission from the Parliament He himselfe confessed That he had no positive or particular Order How should he know of His Majesties comming by instinct or a Propheticall Spirit A negative can not ought not to be proved the proofe rests whollyon Sir Johns side and can be no other then by producing the Ordinance it selfe or his instrument whereby he can receive the sense of the House from Westminster to Hull in an instant If he have not a precedent Ordinance to shew it is in vain to pretend the Authority of Parliament To the second question Admitting but not granting that he had such an Ordinance whether could it be availeable to him being not produced when it was called for and demanded so often by His Majesty De non apparentibus non existentibus eadem est ratio Whether there was no such Ordinance or no such Ordinance did appeare is all one both in Law and reason He that can reade and will not make use of his Clergy suffers justly He that hath a Warrant and will not produce it may cry Nemo laeditur nisi a seipso No Man is hurt but by himselfe A known Officer so long as he keeps himselfe within the sphere of his own activity is a Warrant of himselfe But he that it imployed extraordinarily or transcends the bounds of Common Power must produce his Authority or take what falls Sir John hath not yet gained so much credit that his ipse dixit his word should be a sufficient proofe or his Testimony in his own case taken for an Oracle Thirdly admitting that Sir John had such an Ordinance and likewise that he did produce it for if we admit neither he can prove neither yet the question is how valid this Ordinance may be as to this act I doubt not at all of the Power of Parliament that is a compleat Parliament where the King and both Houses doe concurre but an ordinance without the King against the King alters the case this may have the Authority of both Houses perhaps but not of a complete Parliament Secondly the Power of both Houses is great especially of the Lords as they are the Kings Great Councell and in that relation are the Supreme Judicature of the Kingdome but before the Observer said it I never thought the Commons did challenge any share of this Judicature except over their own Members or preparatory to the Lords or that they had power to administer an Oath which the Apostle saith is the end of all strife who ever knew any Judicature without power to give an Oath This makes the Observers new devise of the people meeting in their underived Majesty to doe justice a transparent fiction It is not the Commons but the Lords or the Kings Councell that challenge Supreme Judicature But take both Houses with that latitude of Power which they have either joyntly or severally yet His Majesty saith they have no power over the Militia of the Kingdome or over his Forts or Magazines he avoucheth for it the Common Law Statute Law Presidents Prescriptions we have not yet heard them answered nor so much as one instance since the beginning of this Monarchy given for a president of such an Ordinance or of any new Ordinance binding to the Kingdom without his Majestyes concurrence in Person or by Commission If the Observer have any Law or President or Case he may do well to produce it if he have none he may sit down hold his peace his remote inconsequent consequences drawn from the Law of Nature are neither true nor pertinent Yet I never heard that Sir Iohn did allege any authority from the House of the Lords but from the House of Commons onely This brings the Parliament still into a straiter roome as if it were totum homogeneum every part to
the equity of the Law many who doe not grant that to violate the Law of Man is sinne universally yet in case of contempt or scandall doe admit that it is sinnefull So then the Laws and Customes of the Kingdome are Limits and bounds to His Majestyes Power but there are not precise Laws for each particular Occurrence And even the Laws themselves doe ofâ—…en leave a latitude and a preheminence to His Majesty not onely for circumstances â—…d forms of Justice but even in great and high Privileges These we call the Prerogative Royall as to â—…e the fountain of Nobility To coyne Money To â—…eate Magistrates To grant Protection to his Debâ—…rs against their Creditours To present to a Beneâ—…ce in the right of his Ward being the youngest Coâ—…arcener before the eldest Not to be sued upon an orâ—…inary writ but by Petition and very many others â—…hich are beyond the ordinary course of common-Common-Law being either branches of absolute power or Preâ—…ogatives left by the Laws themselves Thirdly in the câ—…se of evident necessity where the whoâ—…e Commonwealth lyeâ—… at stake for the safety of King and Kingdome His Majesty may go against partiâ—…ular Laws For howsoever fancyed pretended invisible dangers have thrust us into reall dangers and unseasonable Remedyes have produced our present Calamityes yet this is certaine that all humane Laws and particular proprietyes must veile and strike top-sayle to a true publick necessity This is confessed by the Observer himselfe every where in this Treatise that Salus Populi is the transcendent achme of all Politicks the Law Paramount that gives Law to all humane Laws and particular Laws cannot act contrary to the legislative intent to be a violation of some more soveraigne good introducible or some extreme and generall evill avoidable which otherwise might swallow up both Statutes and all other Sanctions This preservative Power the Observer ascribes to the people that is to say in his sense to the Parliament in case the King will not joyn with them Though we all know a Parliament is not ever ready nor can be sâ—… suddenly called as is requisite to meet with a suddeâ—… Mischief And he thinks it strange that thâ—… King should noâ—… allow to the Subject a right to rise iâ—… Arms for their oâ—…n necessary defence without his consent and that he should assume or challenge such a share iâ—… the Legislative â—…ewer to himselfe as that without hiâ—… concurrence the Lords and Commons should have no right to make temporaâ—…y orders for putting the Kingdoâ—… into a posture of Defence Strange Phrases and unheard of by English eares that the King should joyn with the People or assume a share in the legislative Power Our Laws give this honour to the King that he can joyn or be a sharer with no man Let not the Observer trouble himselfe about this division The King like Solomons true Mother challengeth the whole Child not a divisible share but the very Life of the Legislative Power The Commons present and pray The Lords advise and consent The King enacts It would be much for the credit of the Observers desperate cause if he were able but to shew one such president of an Ordinance made by Parliament without the Kings consent that was binding to the Kingdome in the nature of a Law It is a part of the Kings oath to protect the Laws to preserve Peace to His People this he cannot doe without the Power of the Kingdome which he challengeth not as a Partner but solely as his own by virtue of his Seigniory So the Parliament it selfe acknowledged It belongs to the King and his part it is through his royall seigniory straitly to desend sorce of armour and all other force against his peace at all times when it shall please him and to punish them which shall doe contrary according to the Laws â—…nd usages of the Realme and that the Prelates Earles â—…arons and Commonalty are bound to aide him as their â—…overaigne Lord at all seasons when need shall be Here is a Parliament for the King even in the point The Argument is not drawn as the Observator sets it own negatively from Authority or from a maimed â—…nd imperfect induction or from pâ—…rticular premisâ—…es to a generall conclusion every one of which is â—…ophisticall is thus Such or suâ—…h a Parliament did â—…ot or durst not doe this or that therefore no Parliaâ—…ents may doe it or thus Some Parliaments not comâ—…arable to the Worthies of this have omitted some good â—…t of supinesse or difficulty therefore all Parliaments â—…ust doe the same but it runns thus no parliaments did ever assume or pretend to any such Power some Parliaments have expressely disclaimed it and acâ—…nowledged that by the Law of the Land it is a â—…ewell or a Flower which belongs to the Crown Therefore it is His Majesties undoubted right and â—…ay not be invaded by any Parliament Yet further â—…t were well the Observer would expresse himselfe â—…hat he meanes by some more Soveraigne good introducible the necessity of avoiding ruâ—…ne and introducing greater good is not the same Dangers often â—…come like torrents suddainly but good may be inâ—…roduced at more leisure and ought not to be brought â—…in but in a lawfull manner we may not doe evill that good may come of it Take the Observers two instances When the Sea breakes in upon a County a bank may be made on any Mans ground without his consent but may they cut away another mans Land to make an Harbour more safe or commodious withâ—… the owners consent No. A Neighbours Hoâ—… may be pulled down to stop the fury of a Scath-fire bâ—… may they pull it down to get a better prospect 〈◊〉 gaine a more convenient high way No. We desâ—… to know what this Soveraigne good introduciâ—… meanes and are not willing to be brought intoâ—… Fooles Paradise with generall insinuations Let it aâ—… pear to be so Soveraigne and we will all become suâ—… ters for it but if it be to alter our Religion or our foâ—… of Government we hope that was not the end of thâ—… Militia Lastly when necessity dispenseth with paâ—…ticular Laws the danger must be evident to all tâ—… concurrence generall or as it were generall one oâ—… two opponents are no opponents but where thâ—… danger is neither to be seen not to be named so uâ—… certaine that it must be voted whether there be anâ—… danger or not or perhaps be created by one or twâ—… odde Votes this is no warrant for the practise oâ—… that Paramount Law of salus Populi By this which hath been said we may gather a reâ—… solution whether the King be under the Law anâ—… how farr I mean not the Law of God or Nature but his own Nationall Laws First by a voluntarâ—… submission of himselfe quod sub Lege esse debetâ—… evidenter apparet cum sit Dei Vicarius ad similituâ—… dinem Iesu Christi cujus vices gerit in terris buâ—… Christ was under
jure but de facto he may which is the drowsiâ—…st dreaming devise that â—…ver dropped from any Manâ—… pen in his right Witts Iudas or the Devill himselfe can doe no wrong de jure unlesse both 〈◊〉 of a contradiction can be true A fair Privilege to give a Prince which a high way Thiefe may challenge It may with more probabillity be expounded thus That the King is to discharge the publick Affâ—…ires of the Kingdome not by himselfe but by His Officerâ—… and Ministers therefore if any thing be amisse or unjust they are faulty they are accouncountable for it not He. But there seems to be something more in this principle then thus For first 〈◊〉 the same reason a man might say the King can doe no right if he can doe nothing by himselfe he â—…s not capable of such thanks as Tertullâ—… gave to â—…elix Secondly it would be very strange that a King should be excluded from the personall discharge of all manner of dutyes belonging to his high calling â—…nd might occasion the renewing of the Womans complaint against Philip of Mâ—…edon why then art â—…hou King this were to make His Majesty anoâ—…er Childerick one of the old Ciphers or titulary Kings of France and put all the power into the hands of a Major of the Pallace or a Marshall or some other Subjects What is it then there â—…ust be something more in this old Maxime of â—…ur Law that The King can doe no wrong And it â—…s thiâ—… doubtlesse that in the intendment of Law his Person is sacred he is freed from all defects as though he be a Minoâ—… or an Infant yet in the eye of â—…he Law he is alwayes of full age he owes account of his doings to God alone the Law hath no coercive power over him This is that which Samuel cals The Law of the Kingdom not to shew what a King may lawfully doe but what a Subject ought to bear from a lawfull King To the alone have I sinned said David he had trespassed against Uriah and Bathsheba yet he saith to thee onely have I sinned quia Râ—…x erat because he was a King and accountable to none but God as Clemens Alexandrinus Arnoâ—…ius Saint Ierome Saint Ambrose Venerable Bede Euthymius and sundry others do all affirme upon this one place and Gregory of Towers Si quis de nobis If anyone of us O King doe passe the bounds of justice you have power to correct him but if you exceed your limits who shall chastise you We may speake to you if you list not hearken who can condemne you but that great God who hath pronounced himselfe to be Righteousnesse And even Antoninus whom the Observer so much commends for a renowned and moderate Prince yet is positive in this Solus Deus Iudex Principis esse potest God alone can be Judge of a Soveraigne Prince In the Parliament at Lincolne under Edward the first the Lords and Commons unanimously affirme the same with a wonder that any Man should conceive otherwise That the King of England neither hath answered nor ought to answer for his Right before any Iudge Ecclesiasticall or Secular ex praeeminentia status sui by reason of the preheminence of His Regall Dignity and Custome at all times inviolably observed To try Princes and to doe justice Some man would desire to know how farre this Justice may be extended whether peradventure to depose them and dethrone them to exalt them depresse them Constituere destituere construere destruere fingere diffingere But for this they must expect an Answer from the Observer by the next post when he sees how the people will dance after his pipe and whether his misled Partners will goe along the whole journy or leave his Company in the mid way when he hath sufficient strength then it is time and not before to declare himselfe Till then he will be a good child and follow Saint Pauls advice in part Stoppage is no payment in our Law Suppose the Prince faileâ—…â—…n his duty are the Subjects therefore free from that â—…bligation which is imposed upon them by the Law of God and Nature When His Majesty objects â—…hat a deposition is threatned at least intimâ—…ted what doth the Observer answer he doth not disclaime the power but onely deny the fact Thus he saith It may truely be denied that ever free Parliament did truely consent to the dethroning of any King of England for that Act whereby Richard the second was dethroned was rather the Act of Henry the fourth and His victorious Army then of the whole Kingdome Marke these words that any free Parliament So it seemes that some Parliaments are not free And again did truely consent there may be much in that word also First whether they who are overawed with power of unruly Mermidons may be said to consent truely and ex animo Secondly whether they who consent meerely for hope of impunity to escape questioning for their former oppressions and extortions may be said to consent truely Thirdly whether they who consent out of hope to divide the spoyle may be said to consent truely Fourthly whereas by the Law of Nations the rights and voices of Absentees do devolve to those that are present if they be driven away by a just and probable fear whether they may be said to consent truely Lastly they that follow the Collier in his Creed by an an implicit Faith without discussion resolving themselves into the Authority of a Committee or some noted Members may they be said to consent truely That which followes of Henry the fourth and his victorious Army shews the Observer to be as great an Heritick in â—…olicy as Machiavell himselfe he 〈◊〉 better have said the Usurper and his rebellious Aâ—…my For a Subject â—…o raise Aâ—… against his Soveraigne to dethrone him as Bullenbrooke did and bâ—… violence to snatch the Crown to him selfe in prejuâ—… of the right Heireâ—… is Treason confessed by all men His acquisition is meere usurpation for any Persoâ—… or Society of Men to joyn with him or to confirmâ—… him is to be partakers of his sin But Gods judgemenâ—… pursue such disloyall Subjects and their posterity as it did them The greatest Contrivers and Actors in that Rebellion for a just Reward of their Treason did first feele the edge of Henryes victorious Sword and after them Henries Posterity and the whole English Nation smâ—…rted for Richards blood It is oâ—…served that all the Conspirators against Iulius Caesar perished within three yeares some by judgement of Law others by Ship-wracke upon the Sea others by battail under the sword of their conquering Enemyes others with the fame boâ—…k in wherewith they had stabbed their Emperour one way or other vengeance o ertooke them every Man What others say of Richards resignation is as weake which was done by duresse and imprisonment or at the best for fear of imminent Mischief To conclude this Section God and the Law operate both in Kings and Parliaments but
not in both alike God is the immediate cause of Kings the remote of Parliaments Kings and Parliaments have the same ultimate and Architectonicall end that is the tranquillity of the whole Body Politicke but not the same proper and next ends which in the Parliament is to advise the King supply the King and 〈◊〉 the constituâ—…ion of new Laws to concurre with the â—…ng I grant to speâ—…ke in his Majestyes own words â—…s more full then the Observers That Parliaments are so essentiall a part of the constitution of this Kingdome that we can aâ—…ein â—…o happinesse without them But to conclude from hence their Supâ—…riority above Kings or equality with Kings is to subject the principall efficient to every secundâ—…ry cause subordinate iâ—…strumentall or sine quaâ—…on Observer Two things are aimed at in Parliaments not to be atâ—…eined to by otâ—…er meanes First that the interest of the People might be satisfied Secondly that Kings might â—…e better counsailed In the summons of Edward the first claus 7. 111. 3. dors we see the first end of Parliaments expressed for he inserts in the writ that whatsoever affaire is of publick concernment ought to receive â—…ublicke approbation quod omnes tang 〈◊〉 ab omnibus approbaâ—…i debet or tractâ—…ri And in the same writ he sith this is Lex notissima provida circumspectione stabilita there is not a word here but it is observable publicke approbation consent or treaty is necessary in all publicke expedients and this is not a meere usage in England but a Law and this Law is not subject to any doubt or dispâ—…e there is nothing more known neither is this known Law extorted from Kings by the violeâ—…ce and injustice of the people it is duely and formally establish't and that 〈◊〉 a great deal of â—…eason not withâ—…t the providence and circumspection of all the States Were there no further Antiquity then the Raigne dâ—… Edward the first to recommend this to us certainly sâ—… there ought to be no reverence with-held from it foâ—… this Prince was Wise Fortunate just and valiant bâ—…yond all his Predecessors if not Successors also and therefore it is more glory to our Freedomes that as weake and peevish Princes have most opposed them so that he first repaired the breaches which the conquest had made upon them And yet it is very probable that this Laâ—… was farr ancienter then his Raigne and the words Leâ—… stabilita notissima seemes to intimate that the Conquest it selfe had never wholly buried this in the publicke ruine and confusion of the State It should seem at this time Llewellins troubles in Wales were not quite suppressed and the French King was upon a designe 〈◊〉 invade some pieces of ours in France and therâ—…fore he sends out his summons ad trâ—…ctandum ordinandum faciendum cum prelatis 〈◊〉 aliis incolis Regni for the prevention of these dangers Thesâ—… words tractandum ordinandum faciendum doe fully prove that the people in those dayes were summoned ad consensum as well as consilium and this Law quod omnes tangit c. shews the reason and ground upon which that consent and approbation is founded Answer The Observer is just like a winter Brooke which swells with water when there is no need but in summer when it should be usefull is dried up for all the absurd Paradoxes which he brings in this treatise he produceth not one Authority but his own and here to confirme a known truth which no man deâ—…es he cites Rolls and adornes them with his glosses â—…r my part I know no man that did ever enâ—…y or â—…aligne the honour of Edward the first except Ioâ—…nnes Major who was angry with him for his Norâ—…ren Expedition Edvardus Longshankes câ—…m longâ—…s â—…biis suis venit in Scotiam But what is this to your â—…rpose yes it makes for the glory of our Freedomes â—…at as weake and peevish Princes opposed them so he reâ—…ired the breaches of them How doe you know that 〈◊〉 this summons also I see you are dextrous and â—…n soone make an ell of an inch but in truth you are â—…ry unfortunate in your instances Edward the first â—…as a much greater Improver of the Royalty then â—…y of his Predecessours in which respect he is stiled â—…y our Chroniclers the first Conquerer after the Conâ—…erer That which was urged to his Fathers was â—…ever that I read of tendred to him for the Parliaâ—…ent to have the nomination of the chiefe Justice â—…hancellour and Treasurer but onely once in his â—…hole time and then being rejected with a frown â—…as never moved more It is more probable or rather â—…pparent that the Lenity irresolution and mutable â—…isposition of Princes have been that which hath imâ—…oldened Subjects to make insolent and presumptuâ—…us demands to their Soveraignes Thus for the Man you are as ample for the Law â—…hat it is Lex notissima not only notissima but stabilita lastly stabilita provida circumspectione A trimme gradation quid tanto dignum feret Observator hiatu who reads this and believes not that some great mountain is travelling yet in very deed it is with nothing but a ridiculous mouse postquam incruduit pâ—… na after the fray grows hot dishes and trenchers aâ—… turned to weapons said Erasmus Let your Laâ—… speake itselfe That which conâ—…erns all Men ought to 〈◊〉 approved or handled by all Men. Who denyes it 〈◊〉 shall easily grant you that this Law is not onely aâ—… cienter then the first Edward but even as ancient 〈◊〉 the first Adam a part of the Law of Nature 〈◊〉 least in the grounds of it But that you may not sâ—… away in a mist of Generalities as it is your use oâ—… word of your tangit another of your approbari debeâ—… That which concerns all Men Sir all Men may be saiâ—… to be concerned two wayes either in the consequenâ—… of affairs or in the management thereof This lattâ—… concernment gives a right sometimes to counsell only sometimes both to counsell and approve sometime both to counsell approve and act according to the private constitutions of Societyes but the former implyes no right neither ad approbandum nor yet ad tractandum As for example the meanest Freshmen arâ—… concerned in the Statures and Orders of the University yet are none admitted to debaâ—…e them but the Visiters Heads and at the lowest the Regent Masters And this exception holds in all cases wherâ—… either Inferiours or their Predecessours have legally divested themselves of this power by their proper act or where this trust is committed to Superiours by the Laws divine naturall or nationall Secondly the Counsell Consent or act of Proctors Atturnyes and generally of all Trustees whether one or more whether rightfully elected or imposed according to the latitude of their trust ought to be interpreted as the counsell consent act of thosâ—…â—…ersons by whom or over whom or for whom they â—…e so trusted and whose power virtually they doe reâ—…ine So as a
present and posteriour consent is not â—…cessary to His Majesty for the excercise of any â—…anch of that Imperiall power which by Law or â—…wfull custome is annexed to his Crown And â—…erefore Edward the first his Summons ad tractandum â—…dinandum faciendum which is the same in effect â—…ith all summons since will doe your cause no good 〈◊〉 the world unlesse you may have leave to doe as â—…e Devill did with Christ leave out in viis tuis 〈◊〉 you may put out in quibus dam and thrust in place â—…ereof in omnibus as you doe in the next page In â—…ll things perteining to the People Leave these friâ—…olous these false suggestions your own-Conscience â—…nnot but tell you that reddendo singula singulis in â—…omethings the Houses of Parliament have power â—…o consent in somethings to order in somethings to â—…ct but in all things they have neither power to act â—…or order nor consent and that will appear by your â—…ext Section Observer It is true we find in the Raigne of Edward the third that the Commons did desire that they might forbear counselling in things de queux ils nount pâ—…s cognizance the matters in debate were concerning some intestine commotions the guarding of the Marches of Scotland and the Seas and therein they renounce not their right of consent they onely excuse themselves in point of counsell referring it rather to the King and his Councell How this shall derogate from Parliaments either in poiâ—… of consent or counsell I doe not know for at last thâ—… they did give both and the King would not be satisfieâ—… without them And the passage evinces no more but this that the King was very wise warlike had a very wisâ—… Councell of Warre so that in those particulars the Commons thought them most fit to be consulted as perhaps the more knowing men Answer This is the first time that the Observer is pleased to honour his adverse Party with the mention of one Objection and that with so ill successe that he cannot unty the knot again with all his teeth I will put it into form for him thus That which the Parliament in the raigne of Edward the third had not that no succeeding Parliament hath but that Parliament had no universall cognizance Therefore the same Rule holds in this and all other Parliaments The Proposition is infallibly true grounded upon an undeniable Maxime that quod competit tali qua tali competit omni tali that which is true of one Parliament not by accident but essentially as it is a Parliament must of necessity be true of every Parliament The Assumtion is as evident confessed by the Parliament itselfe who best knew the extent of their own power that there was somethings of which ils nount pas cognizance they had no cognizance And if we will believe the Observer these things which did not belong to their cognizancâ—… were the appeasing some intestine or Civill Commotions and the guarding of the Seas and Marches why these are the very case now in question concerning the Militia And doth a Parliament here confesse that they have no cognizance of these yes what saith the Observer to this he saith they doe not renounce their right but onely excuse themselves in point of Counsell Most absurdly as if there were either consent or counsell without cognizance But he saith they did give both consent and counsell and the King could not be satisfied without them It may be so but there is a vast difference between giving counsell when the King licenseth yea and requireth it and intruding into Counsell without calling between an approbative consent such as the Saints give to God Almighty the onely Authoritative Judge of Heaven and Earth and an active consent without which the Kings hands should be so tied that he could do just nothing The former all good Kings doe desire so farre as the exigence of the service will give way to have their Counsells communicated But the latter makes a great King a Cipher and transformes an Emperour into a Christmasse Lord. You tell us that King had a very wise Councell of Warre and perhaps more knowing in these things then the Commons It were strange if they should not be so if the Commons who are Srangers to the affaires ingagements of State should understand them better then those who have served sundry Apprentiships in that way qui pauca considerat facile pronunciat he that knows not or regards not the circumstances gives sentence easily but for the most part is mistaken Ignorance of the true state of things begets Iealousies and Feâ—…es where there are no Dangers and confidence whâ—…e the Perill is nearest It makes a field of thistles 〈◊〉 Army of pikes and an Army of pikes a field of thiâ—…les Let old States-Men sitte at the Helme still aâ—… steere the Ship of the Common-wealth The Coâ—…ons are the best Councell in the World for redreâ—…ng of grievances for making of new Lawes for â—…inteining the publike interest of the Kingdome abâ—…d and private interest of the Subject at home â—…et this be their Worke and their Honour Observer Now upon a dâ—… comparing of these passages with some of the Kings laâ—…e papers let the World judge whether Parliaments have â—…ot been of late much lesned and injured The King in one of his late Answers alledgeâ—… that his Writs may teach the Lords and Commons the extent of their Commission and Trust which is to be Counsellours not Commanders and that not in all things but in quibusdam arduis and the case of Wentworth is cited who was by Qâ—…een Elizabeth committed sitting the Parliament for proposing that they might advise the Queen in some things which she thought beyond their cognizance although Wentworth wâ—…s then of the House of Commons And in other places the King denyes the Assembly of the Lords Commons to be rightly named a Parliament or to have any power of any Court and consequently to be any thing but a meer convention of private Men. Many things are here assâ—…rted utterly destructive to the Honour Right and being of Parliaments For first because the Law hath trusted the King with a Prerogative to discontinus Parliaments c. Answer Having laid these former groundâ—… the Observer proceeds to some exceptions against some passages in his Majestyes Papers that 's his phrase as if they were old Almanacks out of date fit for nothing but to cover Mustard pots metuentia carmina scombros aut thus His first exception is that His Majesty is trusted by the Law which the Observer calls now a formallity of Law with a Prerogative to discontinue Parliaments leaving no remedy to the People in such a case which he saith is destructive to the Honour Right â—…nd being of Parliaments and may yet be mischiâ—…vous in the future dissolution of them and make our Trienniall Parliaments of litle service if it be not exploded now What is this to the Observers grounds or His Majestyes Declaration
the Observers Argument may be thus paralelled It â—…s not discernable how the whole Citty and State of Athens could be mastered by a Militia consisting but of three thousand or those three thousand by the Major part of thirty Tyrants or the Major pâ—…rt of thirty by Critias and one or two more Or thuâ—… It is not discernable how the World should be mastered by Italy or Italy by Rome or Rome by I know not what Triumvirate A very poor Mercury may reconcile the Observers understanding in this if he be pleased A trayned Band of eighty or an hundred thousand fighting men well armed well exercised are able to master a greater Kingdom then England Armyes are not so soone raised armed disciplined he that is ready for the Field may easily suppresse another upon his first motion or but offering to stirre It is as easy to conceive how the traine Bands may be at the disposition of their Commanders who pay them reward them punish them and it is certain that they who have the naming of them will chuse such as they may confide in The Observer talkes much of Nature what Arms hath Nature given but teeth and nailes these will doe little service at push of pike or against a volly of muskeâ—…s This brings us to the issue which is propounded by the Observer and is accepted by His Majesty which may put an end to all other invectives God grant it â—…ay prove true we see no signes of it yet The Obâ—…erver saith Let us stick close to it and I say he that â—…tarts from it let him be reputed guilty of all the â—…nnocent blood that is shed He addes which will â—…ring the distracted multitude to prostrate themâ—…elves at His Majesties Feet Alas the countenance â—…s not alwayes to be credited but speech is the Arch-Deceiver If this be not a vaine flourish an empty aiery offer but meant in good earnest there is hope we may be happy His Majesty hath satisfied this demand long since by His Declaration of the 12. of August 1642. and yet we find not these fruits here promised with so much confidence He hath named the partyes He hath specified the crimes Take the accusation in his owne words 1. Of entring into a solomne Combination for altering of the Government of Church and State 2. Of designing Offices to themselves and other Men 3. Of soliciting and drawing down the Tumults to Westminster 4. Of bidding the people in the height of their rage and fury goe to Whitehall 5. Of their scornfull and odious mention of His Majesties Person 6. Of a designe to get the Prince into their hands 7. Of treating with Forreine Power to assist them He is willing also to referre himselfe to the strength of his proofes and evidence of the matter which is all the Observer desires Heare Him for that also We desire that the L. K. M. H. M. P. M. H. Sir A. H. M. St. M. M. Sir H. L. A. P. and C. V. may be delivered into the hands of Iustice to be tryed by their Peers according to the known Law of the Land If we doe not prove them guilty of High Treason they will be acquitted and their innocence will justly triumph over Vs. Now if they desire to shew themselves great Patriots and Lovers of their Country indeed here is a faire opportunity offered if they have as much courage as Codrus had to leape into the gaping gulfe of Division and to reduce the Kingdom to its former continuity and unity if they dare trust to the touchstone of Justice and if the bird in their brest sing sweetly to them that they are innocent here is a course provided whereby they may vindicate their good names and out of the feined reports of malignant Sycophants make themselves a triumphant Garland or Crown of lasting Honour But we see no hast I know not mens hearts There is an unhappy story in Plutarch but I dare not apply it of Pericles a Stickler in the Athenian Commonwealth who being busy and private in his study to make his account to the State was advised by his Nephew Alciliades it was pestilent Counsell rather to study low to make no accounts which he did effect by ingaging the Commonwealth in a Warre so as they had no leisure to call for his accounts after that There can be nothing pleaded in barâ—…e to the performance of this Proposition but the privilege of Parliament A great plea indeed so the Observer That none of the Members of the Parliament may be apprehended in case of suspition where no information or Witnesses appear to make good the prosecution without acquainting the Parliament if leave may be conveniently obteined He addes that by the same Act the whole House might have been surprised And in another place that by this meanes the meere imputation of Treason shall sweep away a whole Parliament And his reason is thus grounded That if way be given to this so many Members of either House may be taken away at any time upon groundlesse pretences as may make a Major part of whom they will And then farewell to the Freedome of Parliaments Which truely seemes to be urged with great shew of equity where the partyes are taken away by dozens or greater numbers and the tryall is long deferred to serve a turne You shall find the same Argument used pressed after the same manner by Steven Gardiner to the Parliament alleging that nothing could be of worse Example then to allow such a president that by that meanes it shall be at the pleasure of him that ruleth to doe the same in more But for all that we doe not find that either the Parliament did afford him relief or were sensible of any such danger doubtlesse it stands both with naturall equity the known Law of the Land that they who have the honour to be the great Councell of the King Kingdome should have all such Privileges immunityes as are conducible to the furtherance of those ends for which they are convocated such are free accesse and recesse to be exempted from attendence upon Inferiour Courts so long as they are in that imployment To have their Servants free from arrests that whilest themselves are busy about the great Affaires of the Common-wealth their Estates and occasions may not suffer in their absence and that universall privilege of all Councellers that whilest their intentions are reall they should not be questioned for a slippe of the tongue or a mistake in their judgements We see ordinary Courts doe not onely protect their Ministers of Justice in the excercise of their places but even those Witnesses which aâ—… summoned to appeare before them A Clerke oâ—… the Chancery cannot be called to any other Couâ—… to answer in any Cause that is cogniscible in thaâ—… Court But here are sundry things considerable as firâ—… that His Majesty is the true fountain of these Privileges not any mutuall compacts This is plaine by that petition which Sir
hands of such Persons as they may confide in of the Romane Communion they had the same grounds and pretences that our Men have The Observer answers That this is improperly urged for England and Ireland are the same Dominion That there is as true and intimate an Union betwixt them as between England and Wales And though they doe not meet in one Parliament yet their Parliaments to some purposes are not to be held severall And therefore if the Papists in Ireland were Stronger and had more Votes yet they would want Authority to overrule any thing voted and established here in England The reason why the minor Part in all Suffrages subscribes to the Major is that blood may not be shed 〈◊〉 in probability the Major part will prevaile 〈◊〉 Strife and Bloodshed would be endlesse wherefore the Major part in Ireland ought to sit down and acquiesce because Ireland is not a severall Monarchy from England Nor is that a Major part of Ireland and England too for if it were it would give Law to us as we now give Law there and their Statutes would be of as much virtue here as ours are there c. Such Doctrin as this hath helped to bring poore Ireland to that miserable condition wherein now it is Will you heare with Patience what the Irish themselves say of this If any Ordinance may be imposed upon us without an approbative or so much as a receptive power in our selves where is our Liberty then Our Government is meerely Arbitrary our condition is slavish We had Magna Charta granted to us as well as England and since that time all other Liberties and Privileges of the English Subject Shall that which is ours be taken from us without our own Act or our owne Fault and we never heard either in our Persons or by our Proctors We desire the Observer to remember what he said before That which concerns all ought to be approved by all We have no Burgesses nor representatives there and that it is unnaturall for any Nation to contribute its own inherent puissance meerely to support Slavery Let the Definition be according to the Major Part of the Votes but shall the Minor Part be denyed a Liberty to discusse or vote at all As we deny not but the Kingdome of Ireland is united and incorporated to the Crown of England So we understand not by what right any power derived from the English Subject can extend it selfe over us That power which they have over us is relative as they are the Kings Councell wherein he confides or by virtue of his Delegation to his Judges representing his own Person Thus they For further Answer First this is a meere trifling and declining of the Force of His Majestyes Argument which lyes not in this whether Ireland be 〈◊〉 distinct Kingdome but supposing it to be a distinct Kingdome as without doubt it either is or might be whether that in such a case as is propounded by His Majesty it were lawfull for them to assume such a Power contrary to the Law of God and of Nations or if Ireland were as much bigger then England as France is it is no strange thing for a greater Kingdome to be conquered by a lesser whether in such a case they might give Law to us or their Statutes be of as great virtue here as ours are there meerely because it is so voted by the Major part of the representative Body An absurd incredible Assertion Secondly there is not the like reason of Ireland and Wales Wales is incircled with the same Sea a part of the same Island and originally in the Dayes of the Brittaines a branch of the same Kingdome Wales was incorporated to the Realme of England by Act of Parliament 27. Henrici 8. cap. 26 so was not Ireland Wales have their Peers and Burgesses sitting in the English Parliament so hath not Ireland Wales hath no distinct Parliaments of its own but Ireland hath Thirdly as the Irish readily grant that their Common Law is the same with ours so they will not easily believe that the English Statutes are all of force in Ireland What all even to an Act of Subsidies who ever heard that It is true there hath been a question moved among some Lawyers and those perhaps who were not the most concerned or versed in it of the English Statutes what Statutes and in what cases and how farre they are binding to the Irish Subject but I have not heard their opinion was so high as the Observers or that ever the Bell was rung out yet If all English Statutes be of force in Ireland what need was there for Henry the seventh to make an expresse Statute in Ireland to authorize and introduce all the English Statutes before his time to be of force in that Kingdome this Act had been supervacaneous and superfluous And since that time we see many Statutes of force in England that are of no force at all in Ireland and many both before and since that time of force in Ireland that have no power in England Lastly this Observer might be well one of Father Garnets Disciples when he was asked about the Powder-Treason whether it was lawfull to take away some Innocents with many Nocents he answered yes so it was compensated by a greater benefit or profit which may perhaps be true sometimes as in time of Warre accidentally in publique and necessary but not in private and voluntary Agents So the Observer makes profit and strength to be the onely rule and measure of all actions of State Justice and Piety are banished by an Ostracisme out of his Eutopia This is to inslave Reason and Crown bodily strength to silence Law and Justice and to Deifie Force and Power The Observer is every where girding at the Clergy it is well that his new superstition reversed will allow them that name Have they not great cause to thank him as the poor Persians did their King when they were condemned That he was pleased to remember them Sometimes he scoffes at the Tribe There were seditious Schismaticks of all Tribes Sometimes he derides their Pulpetting it may be he likes a Chaire better because they teach a Divine Prerogative which none understand but these ghostly Counsellers who alwaies expresse sufficient enmity and antipathy 〈◊〉 Publique Acts and Pacts of Men. He that accuseth another should first examine himselfe I doe not beleeve that ever there was any Divine in the World that made Kings such unlimited Creatures as this Observer doth the People I have read some discourses of this subject but I did never see any one so pernitious to a setled society of men or so destructive to all humane compacts as this seditious bundle of Observations which makes the Law of Salus Populi to be a dispensation from Heaven for the breach of all Oathes of Allegiance and all other Obligations whatsoever which measures Justice by the major part and makes strength and power the rule of what is lawfull which
good title of Inheritance both before God and Man These grounds being laid take notice of fower grosse Errors which the Observer runns into in this Section First he supposeth that all Dominion is from the grant or consent of the People whereas in truth all Dominion in the abstract is from God The People could not give what they never had that is power of Life and Death But true it is that Magistrates in the concrete are stiled the Ordinance of Man subjectively because they are Men objectively because they raigne over Men and many times effectively because they are created or elected by Men. But this last holds not in all cases I say nothing of such Kings as were named immediately by God Those whose Predecessors or themselves have attained to Soveraignty by the Sword by Conquest in a just Warre claime immediately from God Those also who were the first Owners or Occupants of waste Lands might admit Tenents or Subjects upon such Conditions as they themselves would prescribe Thirdly those who plant at excessive Charge in remote parts of America will give and not take Laws from their Colonies Fourthly upon the spreading of a numerous Family or the great increase of Slaves and Servants ditis examen domus how often have the Fatherly or Magistrall power been turned into Royalty And though these were but petty Kingdoms at the first yet as great Rivers grow from the Confluence of many little Brooks so by Warrs Marriages and Treaties they might be enlarged In all these Cases there is no Grant of the people This iâ—… one Error His Sâ—…cond Error rests in the Hypothesis His Majesties originall Title to this Kingdome was not Election either of the Person or of the Family but Conquest or rather a Multitude of Conquests the very last whereof is confirmed by a long Succession of foure and twenty royall Progenitors and Predecessors glorious both at home and abroad in Peace and War except â—…hen this dismall and disasterous question did eclipse tâ—…eir lustre and hinder the happinesse of this Nation â—…n the Dâ—…yes of King Iohn Henry the third Edward and Richard the second or in the bloody Warres between the two Houses of Yorke and Lancanster which were nothing else but the fruits and consequents thereof Neither can the Observer collect from heâ—…e that this is to enslave our Nation as Conquered Vassalls It is a grosse fallacy to dispute ae dicto simpliâ—…ter ad dictum secundum quid from the right of absolâ—…e Conquerers to His Majesty now as if so many good Lawes so mâ—…ny free Charters so many acts of Grace in so long a succession had operated nothing This is a second Error Thirdly the Observer teacheth that subordinate Commmâ—…nd is as much from God as Supreme His Majesty iâ—… much bound unto him to make his Royall Commands of no more force by Gods Institutionâ—… then a Peâ—…ty Constables We have hitherto learned otherwise that Kings hold their Crowns and Scepters from God and subordinate Magistrates have their places by Commission from them But it is familiar with these men to leap over the backs of intermedious Causes and derive all their fancyes from God as the Heathens did their Genealogies whereby they destroy the Beauty and Order of the World and make many superfluous Creatures which God and Nature never made In summe Subordinate Commands are from God yet neither so immediately nor so firmely as supreme but as a row of iron rings touchching one another and the first touching the Load-stone in their severall degrees some more loosely some more remotely then others The case is not altogether like for Regall and Aristocraticall Power One God in the World one Soule in the Body one Master in a Family one Sun in the Heaven and anciently one Monarch in each Society All the first Governours were Kings Both Forms are warranted by the Law of Nature but not both in the same Degree of Eminency If an old Man had the eye of a young Man he would see as well as a young Man said the Philosopher the Soule of an Ideot is as rationall as the Soule of a States man the difference is in the Organ So the Soule of Soveraign Power which is infused by God into Democracy or Aristocracy is the same that it is in Monarchy but seeing the Organ is not so apt to attain to the end and seeing that God and Nature do alwayes intend what is best and lastly seeing that in some Cases the existence of Government as well as the essence is from God who never instâ—…tuted any form but Monarchicall the Observer might well have omitted his comparison The fourth aand last Error is worst of all That usurped and unjust Dominion is referred to God as its Authour and Doner as much as hereditary This is right we have been taught otherwise before a seâ—… vaine upstart Empericks in Policy troubled the world that Dominion in a tyranicall Hereditary Governour is from God even in the concrete I mean the power not the abuse that such an one may not be resisteâ—… without Sinne that his Person is sacred But contrarywise that Dominion in a tyranicall Usurper or Intruder is indeed from God permitting wheras he coulâ—… restrain it if it pleased him or from God concurring by a generall influence as the Earth giveth nourishment to Hemlocks as well as Wheate in him wâ—… live we move and have our being or from God ordering and disposing it as he doth all other accidents and events to his own glory but that it is not from God as Author Donor or Instituter of it Neither darâ—… we give to a Tyranicall Usurper the essentiall Priviledges of Soveraignty we deny not that any Subject may lawfully kill him as a publicke Enemy without legall eviction Much lesse dare we say witâ—… the Observer that Power usurped and unlawfull is as much from God as Power Hereditary and lawfull If it be so cough out man and tell us plainly that God is the Author of Sinne. Observer And the Law which the King mentioneth is not to bâ—… understood to be any speciall Ordinance sent from Heaven by the Ministery of Angells or Prophets 〈◊〉 amongst the Iews it sometimes was It can be nothing else among Christians but the pactions and agreements oâ—… such anâ—… such Corporations Answer There is a double right considerable the right to the Crown and the right of the Crown the right and title to the Crown is with us undoubted there needs no Angell from Heaven to confirme it where no man can pretend against it The Right of the crown is the onely subject in question This is from the Law of God the Law of Nature and the Law of Nations That this Power in an absolute Conquerer may be limited by Statutes Charters or municipall Laws in Court of Conscience in Court of Justice to God to his People I grant without communicating Soveraigne Power to subordinate or inferiour Subjects or subjecting Majesty to censure Which Limitation doth noâ—…
proceed from mutuall pactions but from acts of Grace and Bounty I would know to what purpose the Observer urgeth this distinction of Laws will it â—…er â—…he State of the question or the obligation of Subjects Nothing lesse Whether the calling of the Prince be ordinary or extraordinary mediate or immediate the title of the Prince the tye of the Subject is still the same Those Ministers who were immediately ordeined by Christ or his Apostles did farre exceed ours in personall perfections but as for the Ministeriall Power no tract of time can bring the least diminution to it God was the first Instituter of Marriage yet he never brought any couple together but Adam and Eve other marriages are made by free election yet for as much as it is made by vertue and in pursuance of Divine Institution we doe not doubt to say and truely those whom God hath joyned together His Majesties title is as strong the obligation and relation between him and his Subjects is the very same as if God should say from Heaven take this Man to be your King Again if the Libertie of the Subject be from Grace not from pactions or agreements is it therefore the lesse or the lesse to be regarded what is freer then gift if a Nobleman shall give his Servant a Farme to pay a Rose or Pepper-corn for an acknowledgement his title is as strong as if he bought it with his Money But the Observer deales with his Majesty as some others doe with God Almighty in point of merit they will not take Heaven as a free gift but challenge it as Purchasers In a word the Authour of these Observations would insinuate some difference betwixt our Kings and the Kings of Israell or some of them who had immediate vocation wherein he would deceive us or deceiveth himselfe for their request to Samuell was make us a King to judge us like all other Nations Observer Power is originally inherent in the People and it is nothing else but that might and vigour which such or such a society of Men containes in it selfe and when by such or such a Law of common consent and agreement it is derived into such and such hands God confirmes that Law and so Man is the free and voluntary Author the Law is the Instrument and God is the Establisher of both and we see not that Prince which is most potent over his Subjects but that Prince which is most potent in his Subjects is indeed most truely potent 〈◊〉 for a King of one small Citty if he be intrusted with a large Prerogative may be said to be more potent over his Subjects then a King of many great Regions whose Prerogative is more limited and yet in true reality of Power that King is most great and glorious which hath the most and strongest Subjects and not he which tramples upon the most contemptible Vassalls This is therefore a great and fond error in some Princes to strive more to be great over their People then in their People and to Eclipse themselves by impoverishing rather then to magnifie themselves by infranchising their Subjects This we see in France at this Day for were the Peasants there more free they would be more rich and magnanimous and were they so their King were more puissant but now by affecting an adulterate power over his Subjects the King there loses a true power in his Subject embracing a Cloud in stead of Juno Answer It hath ever been the wisdome of Governours to conceal from the promiscuous multitude it s own strength and that rather for the behoof of themselves then of their Rulers Those Beasts which are of a gentle and tractable Disposition live sociably among themselves and are cherished by Man whereas those that are of a more wild and untameable nature live in continuall Persecution and Feare of others of themselves but of late it is become the Master-piece of our Modern Incendiaries to magnifie the power of the People to break open this Cabinet of State to prick forward the headie and raging multitude with fictitious Devises of Bulls and Minotaurs And all this with as much sincerity as Corah Dathan and Abiram said to Moses and Aaron you take too much on you seeing all the Congregation are holy I desire the Observer at his leisure to reade Platoes description of an Athenian Sophister and he shall find himselfe personated to the life that one egge is not liker another if the Coate fit him let him put it on The Scripture phraseth this to be troubling of a Church or of a State It is a Mâ—…taphor taken from a Vessell wherein is Liquour of severall parts some more thick others more subtile which by shaking together is disordered and the dreggs and residence is lifted up from the bottome to the toppe The Observer hath learned how to take Eeles It is their own Rule they that would alter the Government must first trouble the State Secondly posito sed non concesso admitting but not granting that Power is originally inherent in the People what is this to us who have an excellent forme of Government established and have divested our selves of this Power can we play fast and loose and resume it again at our pleasures Lesbia was free to choose her selfe an Husband when she was a Maide may she therefore doe it when she is a Wife Admitting that His Majesty were elected in His Predecessors yea or in His own Person for him and His Heires is this Power therefore either the lesse absolute or lesse perpetuall Admitting that before election we had power to covenant yea or condition by what Laws we would be governed had we therefore power to condition that they should be no longer Laws then they listed us This were to make our Soveraigne not a great and glorious King but a plain Christmasse Lord or have we therefore Power still to raise Arms to alter the Laws by force without Soveraigne Authority This seems to be the Observers main Scope but the conclusion is so odious as which hath ever been confessed Treason and the consequence so miserably weak that he is glad to deale altogether Enthemematically Thirdly admitting and granting that the last exercise or execution of Power that is the posse commitatus or Regni is in the People is the right also in the People or from the People Excuse us if we rather give credit to our Saviour Thou could'st have no Power at all against me except it were given thee from above If Pilate had his Power from Heaven we may conclude strongly for King Charles Nil dat quod non habet some power the People qua talis never had as power of Life and Death it is the peculiar right of God and his Vicegerents Put the case the King grants to a Corporation such and such Magistrates with power also to them to elect new magistrates which yet holds but somtimes from whom do those Magistrates hold their power not from the
Wealth Peace and Godlinesse but also to promote their Good But this Protection must be according to Law this Promotion according to Law Now if a good King at seasonable and opportune times so it may not be like the borrowing of a shaft for the Hatchet to cut down the great Oake nor like the plucking off one or more feathers out of the Eagles wings wherewith to feather an arrow to pierce through that King of Birds shall freely according to the dictates of his own Reason part with any of those Jewells which do adorn his Royall Diadem for the behoofe of his Subjects it is an act of Grace not onely to individuall Persons but to the collected Body of his People so both Houses have acknowledged it yet you say it is meere duty that both Honour and Justice do challenge it from him It is a strange and unheard of piece of Justice and Duty which is without and beyond all Law You say the word Grace sounds better in the Peoples mouth then in His O Partiallity how dost thou blind mens eyes The Observer sees that Grace sounds ill in the Kings mouth and yet he doth not or will not see how ill duty and meere duty sounds in his own mouth being a Subject towards his Soveraigne The truth is it is most civill for Receivers to relate benefits sufficit unus huit operi si vis me loqui ipse tace But where the Receivers forget themselves yea deny the favours received as this Observer doth it is very comely for the Bestowers to supply their defect Next to your taking away of Ship-Money Star-chamber High Commission c. It is an easy thing to take away but difficult to build up both in nature and in respect of mens minds which commonly agree sooner in the destructive part then in the constructive All the danger is either in exceeding the golden mean by falling from one extreme to another or in taking that away which by correcting and good ordering skill might have been of great use to the Body Politick We are glad to be eased of our former Burthens yet we wish with all our hearts that our present ease may not produce greater mischiefes that in true reall necessities and suddaine dangerous Exigences the Common-wealth may not be left without a speedy Remedy That if the Laws have not sufficiently provided for the suppressing of riots and tumultuous disorders in great men yet the ordinary Subject may nor be left without a Sanctuary whither to fly from oppression That in this inundation of Sects which doe extremely deforme our Church and disturbe the Common-wealth there may be a proper and sure Remedy provided before it be too late and we be forced in vaine to digge up Antigonus again out of his Grave As for the taking away of Bishops Votes at this time I doe not doubt but that great Councell of the Kingdom had reasons for it and may have other Reasons when it pleaseth God to restore them again There is much difference betwixt a coercive and a Consultive Power No Nation yet that ever I read of did exclude their Religious from their Consultations To make a Law perfectly good Piety must concurre and who shall judge what iâ—… piouâ—… shall they first be excluded from all other Professions and then from their owne Brittish Bishop have been of noâ—…e in great Councells Forrein and Domestique these one thousand four hundred and thirty years It is your own Rule quod omnes tangit ab omnibus tractari debet All other Professions in the Kingdome are capable â—…oth of electing and being elected but for this I doe submit and leave it to time to discover what is good for the Kingdome Observer This directs us then to the transcendent achme of all Politicks to the Pâ—…ramount Law which shall give Law to all Humane Laws whatsoever and that is salus Populi The Law of Prerogative it selfe is subservient to this Law and were it not conducing thereunto it were not necessary nor expedient Answer If this Author could commit the Law of Prerogative and this Supreme Law of salus Populi together as opposite one to another he had said something but he cannot see Wood for Trees the same transcendent achme which he magnifies is the Law of Prerogative it selfe because a generall Law cannot take notice of the equity of all particular circumstances nor of the necessity of all particular Occurrences therefore the supreme Prince is trusted with this Power Paramount That which the Law of Nature warrants in a private Man as in a scathfire to pull down a Neighbours House to prevent the burning of a Citty to cast another mans corne overboord in a Tempest to defend himselfe from Thiefes in cases where he cannot have recoarse to the Magistrate or the suddainesse of the Danger will admit no formall Proceeding in Law So publicke necessity doth justifie the like Actions in a King where the exigence of the State is appâ—…tant If this Power be at any time misimployed if this Trust be violated yet the abuse of a thing cannot take away the use and lawfull and necessary right which is grounded upon the universall and perpetuall Law of salus Populi which comprehends the good of the Soveraigne as well as of the Subject But it is now grown into fashion for Subjects without Authority Equity or Necessity to urge this Law upon all occasions Salus Populi is like the Foxe in AEsops Fables it is in at every end Mens Persons are imprisoned their Houses plundered there Lands sequestred their Rights violated without the Judgement of their Peeres contrary to the known Law contrary to the great Charter and nothing pretended for this but the Law Paramount Truely Sir if this be salus Populi uâ—…a salus sanis nullam sperare salutem A remote Jealousie or Suppofition is no good ground for the exercise of this Law as to pull down another Mans House for fear of a Scathfire to come God knows how or when perhaps foretold in a Prognostication The Dangers must be very visible before this Rule take place not taken upon Trust or an implicit Faith like Seoggins fiery Draggons in the aire All true Englishmen will desire to be governed by their known Laws and nor to hear too often of this Paramount Law the application or misapplication whereof hath been the cause of the past and present Distempers of this Kingdom Extraordinary Remedyes like hot Waters may helpe at a Pang but being too often used spoyle the Stomack Observer Neither can the Right of Conquest be pleaded to acquit Princes of that which is due to the People as the Authours and ends of all Power for meere Force cannot altar the course of Nature or frustrate the tenour of the Law and if it could there were more reason why the People might justifie force to regaine due Liberty then the Prince might to subvert the same And it is a shamefull Stupidity in any Man to think that our Ancestors
the legallity anâ—… expedience of each circumstance which perhaps he 〈◊〉 not capable of perhaps reason of State will not peâ—… mit him to know it The House of Commons havâ—… a close Committee which shews their allowance oâ—… an implicit confidence in some cases yet are theâ—… but Proctors for the Commonalty whereas the Kinâ—… is a Possessor of Soveraignty But it is alleged thaâ—… of two evills the lesse is to be chosen it is better to disobeâ—… Man then God Rather of two evills neither is to bâ—… chosen but it is granted that when two evills arâ—… feared a Man should incline to the safer part Noâ—… if the Kings Command be certain and the other danger but doubtfull or disputable to disobey the certain command for feare of an uncertain or surmised evill is as Saint Austin saith of some Virgins who drowned themselves for feare of being defloured to fall into a certain crime for fear of an uncertain A third error in this distinction is to limit the Kings Authority to his Courts All Courts are not of the same Antiquity but some erected long after others as the Court of Requests Neither are all Justices of the same nature some were more eminent then others that were resident with the King as his Councell in points of Law these are now the Judges Others did justice abroad for the ease of the Subject as Iustices of Assise Iustices in Eire Iustices of Oier and Terminer Iustices of Peace The Barons of the Exchequer were anciently Peeres of the Realme and doe still continue their name but to exclude the King out of his Courts is worse a strange Paradox and against the grounds of our Laws The King alone and no other may and ought to doe justice if he alone were sufficient as he is bound by his Oath And again If our Lord the King be not sufficient himselfe to determine every cause that his labour may be the lighter by dividing the burden among more Persons he ought to choose of his own Kingdome wise Men and fearing God and of them to make Iustices These Justices have power by Deputation as Delegates to the King The Kings did use to sit personally in their Courts We reade of Henry the fourth and Henry the fift that they used every day for an houre after dinner to receive bills and and heare causes Edward the fourth sate ordinarily in the Kings Bench Richard the third one who knew well enough what belonged to his part did assume the Crown sitting in the same Court saying He would take the Honour there where the chiefest part of his duty did lye to minister the Laws And Henry the eight sate personally in Guild-Hall The Writs of Appearance did â—…un coram me vel Iusticiariis meis before me or my Justices Hence is the name of the Kings Bench and the teste of that Court is still teste meipso witnesse our selfe If the King be not learned in the Laws he may have learned Assistents as the Peeres have in Parliament A clear and rationall head is as requisite to the doing of Justice as the profound knowledge of Law It is a part of his Oath to doe to be kept in all his judgments Right Iustice in Mercy and Truth was this intended onely by Substitutes or by Substitutes not accountable to him for injustice we have sworne that he is supreme Governour in all causes over all Persons within his Dominions is it all one to be a Governour and to name Governours David exhorts be wise now therefore O yee Kings Moses requires that the King read in the booke of the Law all the dayes of his Life Quorsum perâ—…itio haec what needs all this expence of time if all must be done by Substitutes if he have no Authority out of his Courts nor in his Courts but by delegation When Moses by the advise of Iethro deputed subordinate Governours under him when Iehosophat placed Judges Citty by Citty throughout Iudah It was to ease themselves and the People not to disingage and exinanite themselves of Power It is requisite that His Majesty should be eased of lesser burthens that he may be conversant circa ardua Reipublicae about great affaires of State but so as not to divest his Person of his royall Authority in the least matters Where the King is there is the Court and where the Kings Authority is present in His Person or in his Delegates there is his Court of Justice The reason is plain then why the King may not controule his Courts because they are himselfe yet he may command a review and call his Justices to an account How the Observer will apply this to a Court where neither His Majesty is present in Person nor by his Delegates I doe not understand The fourth and last error is to tie the hands of the King absolutely to his Laws First in matters of Grace the King is above his Laws he may grant especiall Privileges by Charter to what Persons to what Corporations â—…e pleaseth of his abundant Grace and meere motion he may pardon all crimes committed against the Law of the Land and all penaltyes and irregularityes imposed by the same the perpetuall Custome of this Kingdome doth warrant it All wise men desire to live under such a Government where the Prince may with a good Conscience dispence with the rigour of the Laws As for those that are otherwise minded I wish them no other punishment then this that the paenall Laws may be executed on them strictly till they reforme their Judgements Secondly In the Acts of Regall Power and Justice His Majesty may goe besides or beyond the ordinary course of Law by his Prerogative New Laws for the most part especially when the King stands in need of Subsidies are an abatement of Royall Power The Soveraignty of a just Conquerer who comes in without pactions is absolute and bounded onely by the Laws of God of Nature and of Nations but after he hath confirmed old Laws and Customes or by his Charter granted new Liberties and Immunities to the collective Body of His Subjects or to any of them he hath so farr remitted of his own right and cannot in Conscience recede from it I say in Conscience for though humane Laws as they are humane cannot bind the Conscience of a Subject and therefore a fortiore not of a King who is the Law-giver yet by consequence and virtue of the Law of God which saith submit your selves to every ordinance of Man for the Lords sake and again Thou shalt love thy neighbour as thy selfe they doe bind or to speak more properly Gods Law doth bind the Conscience to the Observation of them This is that which Divines doe use to expresse thus That they have power to bind the Conscience in se sed non a se in themselves but not from themselves non ex authoritate Legislatoris sed ex aequitate Legis not from the authority of the Law-giver but from
the Law no otherwise then by voluntary submission Secondly the Law hath a directive Power over Kings and all good Kings wilâ—… follow it for example sake to their Subjects for Conscience sake to themselves Tacitus saith of Vespasian that being antiquo cultu victuque observing the old customes in his Diet and his apparrell he was unto the Romans praecipuus adstricti moris Author an excellent pattern of Frugalitie But the Law hath no coercive Power over him This besides his Power of pardoning and dispensing may appear by these two reasons First that no writ lyes against him in Law but the party grieved hath his remedy by Petition or supplication Secondly that if upon petition he doth not right the wronged party there is â—…o course in Law to compell him satis sufficit ei â—…d paenam quod Dominum expectet ultorem and elsewhere incidit in manus Dei viventis he falls into the hands of the living God which the Scripture saith is a fearfull thing wiâ—…nesse Pharaoh Senacherib Nero Domitian Dioclesian Deciâ—…s Aurelian Iulian c. Some slain by themselves some by others some drowned some smitten with Thunder some eaten with Wormâ—… how seldome Tyrants escape punishment even in this World I see not why the Obserâ—…er should be so angry that this Doctrine should be pulpitted as he phraseth it or why he should accuse it of flattery whether is the greater curbe to restreine Princes the fear of Man or of God of temporâ—…ll onely or of temporall and eternall punishment Si genus humanum mortalia temnitis arma At sperate Deosmemores fandi atque nesandi The Observer acknowledgeth as much in effect The King is not accountable for ill done Law hath only a directive no coercive force upon his Person There is a fourth answer to this Text by distinguishing between private Persons and subordâ—…te Magistrates but because the Observer makes no use of it I passe by it Observer But Freedome indeed hath diverse degrees of Laâ—…tude and all Countries there in dâ—… not participate alâ—… but positive Laws must every where assigne those 〈◊〉 The Charter of England â—…s not strait in Privilegâ—… 〈◊〉 us â—…ther is the Kings Oath of small strength to 〈◊〉 Charter oâ—… that though it be more precise in the care 〈◊〉 Canonicall Privileges and of Bishops and Clergy-meâ—… is having been penned by Popish Bishops then of thâ—… Commonalty yet it confirmes all Laws and rightfull Customes amongst which we most highly esteeme Parliamentary Privileges and as for the word eligerit whether it be future or past it skills not much â—…or if by thâ—… Oath Law Iustice and Discretion be executed amongâ—… us in all judgements as well in â—…s out of Parliaments and if Peace and godly agreement be 〈◊〉 kept amongst us all and if the King defend and uphold all ouâ—… Laws and Customes we need not â—…eare but the King 〈◊〉 bound to consent to new Laws if they be necessary aâ—… well as defend old for both beiâ—…g of the same necessity the publike trust must needs equally extend to both anâ—… we conceive it one Parliamentary Right and Custome that nothing necessary ought to be denied And thâ—… word eligerit if it be in the perfect tense yet shews thaâ—… the Peoples election had been the ground of ancienâ—… Lawes and Customes and why the Peoplâ—…s Eleâ—…ion in â—…arliament should not be now of as great moment as ever I caâ—…not discover Answer â—…omento fit cinis diu silva The Observer hath 〈◊〉 long weaving a Spiders Webbe and now he â—…selfe sweepes it away in an instant for if 〈◊〉 Laws must every where assigne the degrees of liâ—… what will become of those tacite trusts and reâ—…ions of those secret and implicite but yet neâ—…ry limits and conditions of Soveraignty which if the Prince exceed the Subject is left free nay 〈◊〉 is bound by a higher duty then Oathes and all Ties of Allegiance whatsoever to seek his own preservation and defence Calvin wâ—…s of another mind Superior si pâ—…testate suâ—… abutituâ—… rationem quidem olim reâ—…det Deo non tamen in presentia jus suum amitâ—…it Admitting this Doctrine that there are such secret reservations and condition and these as generall as â—…afety Liberty and Necessiâ—… and make the People their own â—…udges wâ—…en necessiâ—…y iâ—… what is a violation of Liberty and what doth indanger their safetâ—… and all that great and glorious Power which we give unto Princes will become but like the Popes infallibility and his temporall Dominion which his Flatterers doe give unto him with so many cautions and reservations that they may take it away when they please Take nothing and hold it fast But leaving these flegmaticke speculations I doe readily joyn hands with the Observer herein That the positive Laws of a Kingdome are the just measure and standard of the Lâ—…berty of the Subject To say nothing of the great distance that is between ouâ—… Euroâ—…aean Pâ—…nces in extent of Power over their 〈◊〉 â—…o come â—…ome to our selves we see some Corporâ—…ons are indowed with more liberties and Privileges then others thanks to a favourable Charter not to any anâ—…ecedaneous Pâ—…ctions we see what difference of Tenures is amongst uâ—… some are Coppy-holders some are Free-holders some hold in Villeâ—… 〈◊〉 some in Knight service some in free soccage 〈◊〉 in Franke Almaine whence springs this diverâ—… but from custome and the pleasure of the Doâ—… who freely imposed what conditions he liked at such time as he indowed the ancestorâ—… of the present Possessors with such and such Lands We have a surer Charter then that of Nature to hold by Magna Charta the English Mans jewell and Treasure the fountain and foundation of our Freedome the Walls and Bulwarke yea the very life and soule of our security He that goes about to violate it much more to subvert it in whole or in part I dare not curse him but I say for my selfe and let the Observer do the like let him prove the shame and abject of Men and his Posterity slaves But doe you think it was penned by Popish Bishops faire fall them for it certainly they did that as English Bishops and as Christian Bishops not as Popish Bishops long may their reformed Successors injoy the fruit of their Labours if they doe not others may looke to themselves Jam tua res agitur paries oum proximus ardet It is no new thing to beginne with Bishops and â—…end with Nobles It troubles you that they were so â—…recise in the care of Canoicall Privileges T is probable they did it out of Dâ—…otion 〈◊〉 〈◊〉 call instinct as foreseeing or feâ—…ring 〈◊〉 Times Yet you confesse withall that it confirmes 〈◊〉 Laws and rightfull Customs to all Subjects 〈◊〉 Now Sir we are come to a fairâ—… Issue hold 〈◊〉 foote there your next taske must be to shew â—…at part of Magna Charta is violated by His Majesty what Liberties there granted are by him deteâ—…ned from the Subject if
Oath which beares markes enough in it selfe of the time when it was made are not to be pressed further then Custome and practice the best Interpreters of the Law doe warrant otherwise the Words quas vulgus elegerit cannot without much forcing be applied to the Parliament But admit the word vulgus might be drawn with some violence to signifie the House of Coâ—…ons by virtue of their representation yet hoâ—… have the House of Lords lost their interest if the King be boâ—…nd to confirme whatsoever the House of Commons shall present Thirdly it cannot be denyed that if the King 〈◊〉 bound by a lawfull Oâ—…th to passe all Bâ—…lls it is not the form of denying it but the not doing it which makes the pâ—…rjury Therefore the form of the Kingâ—… answer Le Roy Savisera canâ—… excuse the perjury in not doing Neâ—…her doth it prove that the King had no power to deny but that â—…e is tender of a flat dâ—…nyall and attributes so much to the judgement of His great Councell that he will take further advice This would be strange Doctrin indeed incredible that all the Kings of England who have given this answer have been forsworn and neither Parliament nor Convocation to take notice of it in so many Ages nor in the nâ—…t succeeding Parliament after so long advise to câ—…l for a further answer Fourthly it is confessed that in Acts of Graâ—… the King is not bound to assent it is well â—…f he have not been restreined of this Right That in all Acts where His Majesty is to depâ—…rt from the particular Right and Interest of His Crown he is not obliged to assent and was not that of the Militia such a case Lastly that though he be bound by oath to consent yet if he doe not consent they are not binding Laws to the Subject Thus farre-well But then comes a handfull of Gourds that poisons the pottage except in cases of necessiâ—… Give to any person oâ—… Socieâ—…y a Legislative power without the King in case of necessity permit them withall to be sole Judges of necessity when it is how long it lasts and it is more then probâ—…ble the necessity will not determine till they have their own desires which is the same in effect as if they had a Legislative Power Necessity excuseth whatsoever it doth but first the necessity must be evident there needs no such great stirre who shall be Judge of necessity when it comes indeed it will shew it selfe when extreme necessity is disputable it is a signe it is not reall Secondly the Agent must be proper otherwise it cuts in â—…under the very sinews of Government to make two Supremes in a Society and to subject the People to contrary commands If the Trumpet give an uncertain sound who shall prepare him selfe to Battell There can be no necessity so pernicious as this very Remedy Fifthly the great variety of Forms and presidents seems to prove that one precise form is not simply necessary and the words adjiciantur quae justa â—…erint and King Henry the eights enterlining it with his own hand do prove that it is arbitrary at least in part To interline it to interline it with his own hand to leave it so interlined upon Record O stange If this clause had been of such consequence we should have heard of some question about it eitâ—…er then or in some succeeding Parliament but we find a deep silence Thomas 〈◊〉 Arch-Bishop of Canterbury in Parliament chargeth Henry the fourth with his Oath which he did voluntarily make But to the forms First the Oath which King Iames and King Charles did take runns thus Sir will you to grant to hold and keep the Lawes and rightfull Customes which the Commonalty of this Kingdom have Here is neither have chosen nor shall choose The Oath of Edward the sixth was this Doe you grant to make no new Laws but such aâ—… shall be to the Honour and glory of God and to the good of the Common-â—…lth and tâ—…at the same shall be made by the consent of your People as hath been accustomed Here is â—…o â—…gerit still yet â—…is Age freed him from the very thught of improving His Prerogative King Henry the eight corrected the form then presented to Hiâ—… thus And affirme them which the Nobles and Peâ—…ple have chosen with my consent Here is have chosen aâ—…d the Kings Consent added to boote Doctor Cowâ—… in his Interpreter recites the Kings Oath out of tâ—… old abridgement of Statuâ—…es set out in Henry tâ—… eights Dayes much different from this as that the King should keep all the Lands Honours c. of the â—…rown whole without diminution and reassume those whâ—…h had been made away And this clause in questin runnes thus He shall grant to hold the Laws and Customs of the Realme and to his Power keep them aâ—…d affirme them which the Folke and People have made â—…nd chosen and this seems to have been the Oath of His Predecessors But perhaps if we looke up higheâ—… we shall find a perfect agreement in thiâ—… point Our next step must be to Henry the fourth and Richard the second a Tragicall Time when the State run contrary waves like a whirligigge fiâ—…ter for the honour of the Nation to be buried in oblivion then drawn into president But this Oath being no Innovation it may serve well enough Yet the Oaths of these two Kings do not agree so exactly as to settle a certain forme as to instance onely in the clause in question Henry the â—…ourths Oath runs thus concedis justas Leges constudines esse tenendas promittis pro te eas esse proâ—…gendas ad honorem Dei corroboraâ—…d quas vulgus â—…gerit which last word signifies indifferently either â—…ave chosen or shall choose Neither doth the Reâ—…ord say that this was the very 〈◊〉 taken by Henry â—…e fourth but that it was the usuall forâ—… taken by â—…e Kings of England and twice by Richard the â—…econd and for proof of what it saith referres us â—…o the Registers of the Arch-Bishops or Bishops proâ—…t in libris pontiâ—…calium Archiepisâ—… et Episc. plenius â—…ontinetur This prout is a clear evidence that this preâ—…se Form had no ground in Statute or in Common â—…aw but was a Pontificall rite The Oath of Riâ—…hard the second related in the close Rolls of the first Year of his Raigne even in this very clause differs â—…n two materiall things one is that to justas Leges Consuetudines there is added Ecclesiae the other is that to elegerit is added juste rationabiliter which the People have chosen or shall choose justly and reasonably which limitation if the Oath look forward to future Laws must of necessity be either expressed or understood otherwise the Oath is unlawfull and doth not bind jusjurandum non debet esse vinculum iniquitatis Here also the word elegerit is doubtfull whether past or future If it be urged that to corroborate must de understood
This is rather an exception against the Law it selfe then the King So the Observer and his pewfellowes deal with Laws and Law-makers if they make for them suscipiunt ut Aquilas they admire them as Eagles if they make against them despiciâ—…nt ut graculos they despise them as Dawes the Fundamentall Constitutions of the Kingdome must be streight exploded the Law is become a Formallity Are you in earnest Sir that this is destructive to Parliaments you might have said more truely the productive cause of all Parliaments that ever were in England or of any Assembly that had an Analogy with Parliaments I tooke you only for a Reformer of some abuses newly crept in but it is plain you intend to be another Licurgus to alter the whole frame of Government Truely Sir you beginne very high and jumpe over the backs of a great many Generations at once Doubtlesse you are either very wise or have a great opinion of your owne Wisdome But to the point It is confessed that sometimes some evills doe flow from inconsiderate trust but many more from needlesse Jealousy incommoda non solvunt Regulam Inconveniences doe not abrogate a Law Restraint commonly makes pâ—…ssion more violent When you have done what you can there must be a trust either reposed in one or many and better in one then many Doe but looke home a little without trust a Man knows not his owne Father without trust a man knowes not his own Children Some trust there must be and who fitter to be trusted then he that hath the Supremacy of power unlesse you will make two Supremes You confesse that Parliaments ought to be used as Phisick not as constant Diet. And the Law hath â—…ow set down a faire terme for the continuance of an ordinary Parliament unlesse you would be continually in a course of Phisick The second exception is His Majesty declares that the Parliament hath no universall power to advise in all things but in quibusdam arduis according to the Writ and cites the president of Wentworth a Member of the House of Commons committed by Queen Elizabeth the Parliament sitting for proposing to advise Her in a matter She thought they had nothing to doe with The Observer magnifies Queen Elizabeth for Her Goodnesse and Clemency but withall he addes But we must not be presidented in apparent violation of Law by Queen Elizabeth A grave Historiographer tells us of a close and dangerous kind of Enemies tacitum inimicorum genus such as make a mans praises an introduction to their venemous invectives as if it were not malice but pure love of truth that even forced them to speak so much such an one is a good Man but c. So Queen Elizabeth was a good Queen but in this particular she played the Tyrant To violate Laws to violate them apparently therefore wilfully to have no respect to the House of Commons whereof Wentworth was a Member was no signe of Grace and Clemency Certainly Queen Elizabeth a wise and mercifull Princesse one that so much courted Her People would not have done it but that She thought She had just grounds or if She might erre in her judgement yet She had as wise a Councell as any Prince in Europe and a businesse of this consequence could not be done without their advice who doubtlesse were some of them Members of the same House or if both She and they should be mistaken yet why were the House of Commons themselves silent whilest such a known Privilege was apparently invaded why did they not at least in an humble Petition represent this apparent violation of their Libertyes that it might remaine as a memoriall to plead for them to Posterity that they were not the betrayers of the Rights of Parliaments She that was so gracious as he Observer acknowledgeth and whose goodnesse was so perfect and undissembled could not choose but take it well and thanke them for it Neither will it suffice to say She gained upon them by Courtesy such an apparent violation so prejudiciall to the Highest Court of the Kingdome passed over in deep silence shews as litle Courtesy on the one side as Discretion on the other In brief as I cannot conceive that these words in quibusdam arduis are so restrictive that the House may consult of nothing but what shall be proposed or was intended at the time of the Summons so on the other side I doe not see how either the Commission or Prescription doe give them such an universall Cognizance or Jurisdiction Queen Elizabeth declared Herselfe oftner then once in this point in Her first Parliament when in reason She should be most tender to the Speaker and the Body of the House of Commons out of their Loves humbly moving Her to Marriage She answered that She tooke it well because it was without limitation of Place or Person if it had been otherwise She must needs have misliked it and thought it a great presumption for those to take upon them to bind and limit whose duties were to obey The third exception is the King saith they must meerely counsell and not command a strange charge if you marke it For it is impossible that the same trust should be irrevocably committed to the King and His Heires for ever and yet that very trust and a power above that trust be committed to others The Observer answers first little to the purpose that though there cannot be two Supremes yet the King is universis minor lesse thâ—n the collective Body of His Subjects as we see in all conditionate Princes such as the Prince of Orenge c. His Maxime that the King is singulis Major univerversis Minor except the King himselfe be included in the universi hath been shaken in pieces before The Law is plain The Kings Most Royall Majesty of meer droit very Right is very Head King Lord and Ruler of this Realm And doth he now intend to include the King of England in his c. among condionate Princes Take heed Sir this will prove a worse c. then that in the late Canons Secondly he answers that though the Kings power be irrevocable yet it is not universall the people have reserved something to themselves out of Parliament and something in Parliament It were to be wished that he would distinctly set down the particular reservations a deceitfull Man walkes in Generallityes Still the Observer dreams of Elective Kingdoms where the people have made choise either of a Person or a Family To us it is nothing they that give nothing can reserve nothing Trusted and yet reserved How the Observer joynes Gryphins and Horses together if trusted how reserved if reserved how trusted but how doth the Observer prove either his trust or reservation nay it is a tacite trust in good time so he proves his intention by a Company of dumbe witnesses In conclusion his proofe is that it is a part of the Law of Nature A trimme Law of Nature indeed which
and use their power so farr as conduceth to their safety You see the high ad ultimate Judicature is neither now the Kings nor the Parliaments Your third division is between the Parliament and a part of it Of this charge they are guilty who made the distinction of good and bâ—…d Lords of well affected and ill affected Members The votes of Absentees doubtlesse by the Law of Nations devolve to those that are present but if the place of the Assembly be not free if the absence be necessitated by unjust force or just fear the case is otherwise Your fourth division is between the Major part misled and a Faction in the major part misleading I wonder you should thinke this so impossible Neere instances may be dangerous let us looke upon the great Councell of Aâ—…iminum the question was of no lesse consequence then the Diety of Christ the Major part of the Couâ—…cell voted for the Arrians and in the major part the misleading Faction were but few the well meaning party were farre the more but misled by the subtle manner of proposing the question wheâ—…her they would have Christ or Homoousioâ—… which â—…either being discussed nor understood as it ought to â—…ave been they voted wrong and repented at leiâ—…ure In the last place you distinguish between deserting â—…nd being deserted If the Wife leave her Husbands â—…ed and become an Adulteresse t is good reason she â—…ose her dowry but if her Husband caâ—…selesly reject â—…er it is injustice she should suffer any detriment Your case is true as you propose it but suppose the Adultresse should stay at home and outbrave her Husband or by her power in the Family thrust him good Man out of doores suppose she should refuse to cohabite with him except she may be Mastâ—…r and do what she will without controllment and forget her Matrimoniall Vow of Obedience This alters the case Observer Now of that Right which the Parliament may doe the King by Counsell iâ—… the King could be more wisely or faithfully advised by any other Court or if his single judgement were to be preferred before all advise whatsoever it were not onely vaine but extreamly inconvenient that the whole Kingdom should be troubled to make elections and that the Parties elected should attend the publick businesse Answer We have had both Counsell and Consent befoâ—… but now we must have them again The questioâ—… raised by the Observer are of such an odious naturâ—… that no good Subject can take delight in them whosâ—… duty is to pray for the like concent among the sevâ—…rall orders of this Kingdome that is supposed tâ—… be among the severall orbes of Heaven His Majesty is undoubtedly the primum mobile whatsoeveâ—… the Observer in sundry parts of this Treatise prattlâ—… to the contrary The two Houses of Parliament tâ—… great and privy Councell are the lower Spheres whicâ—… by their transverse yet vincible motions ought to allay the violence of the highest Orbe for the good anâ—… preservation of the universe Where there are no such helps and means of temper and moderation there Liberty is in danger to be often trodden under Foot by Tyranny And where these adjuments by the unskilfulnesse or sinister ends of some young or ambitious Phaetons become impediments by a stiffe froward and unseasonable opposition in stead of a gentle vincible reluctation it sets the whole body Politick in a miserable combustion as dayly experience shews But I must trace the Observer The calling of Parliaments is not vaine and inconvenient but his inference is vain and inconsequent there are other ends of Parliaments besides Counsell as consenting to new Laws furnishing the publick with Money the nerves and sinews of great actions mainteining the interest of the Kingdome and liberty of the Subject From removing one sociall end to inferre â—…at an action is superfluous deserves no answer but 〈◊〉 and contempt Secondly even in point of advise there is more reâ—…uired in a good Counseller then naturall wisdome â—…nd fidelity our fancyes are not determined by naâ—…ure to every thing that is fit for us as in Birds and Beasts but we must serve apprentiships â—…o â—…ble us to â—…erve one another There is a thing called experience of â—…igh concernment in the managery of publick affaires He that will steere one Kingdome right must know â—…he right constitution of all others their strength their â—…ffections their councels and resolutions that upon each different face of the skye he may alter his rudder The best Governments have more Councells â—…hen one one for the publick interest of the Kingdome another for the affaires of State a Councell for Warre and a Councell for Peace and it were strange if it were not as requisite to have a Councell for the Church Every Man deserves trust in his own Profession many are fittest for resolving few for managing The exigence of things require sometimes secrecy sometime speed We see the House of Commons though they be but deputed by the People and a Delegate cannot make a delegate where their right is in confidence rather then in interest yet they have their Committees and a Councell in a Counsell Neither are all Parliaments of the same temper if we may believe Sir Henry Wotton one that was no Foole thus he in the eighteenth of King James many young ones being chosen into the House of Commons more then had been usuall in great Councells who though of the weakest winges are the highest flyers there 〈◊〉 a certain unfortunate unfruitfull Spirit in some places not sowing but picking at every stone in the field rathâ—… then tending to the generall harvest Thirdly let them be as wise and as faithfull Councellers as the Observer pleaseth onely let them be but Councellers Let their conclusions have as much credit as the premises deserve and if they can necessitate tâ—…â—…rince to assent by weight of reason anâ—… convincing evidence of expedience let them doe it oâ—… Gods name necesse est ut lancem in libra ponderibâ—… impositis deprimi sic animum perspicuis cedere But 〈◊〉 hope they will never desire to doe it out of the authority of their votes or obtrude a conclusion on His Majesty before he understand how it is groundeâ—… upon the Premises This seemes to be the same which the Disciplinarians would impose upon the King in the Government of the Church to be the Executor of their decrees His Respect to their judgement ought to make him tâ—…nder in denying but inferres no necessity of granting Fourthly I wonder the Observer is not ashamed to tell of His Majestyes preferring his single judgement before all advise whatsoever when the Observer chargeth him with following the advice of his Cabinet Councell when he hath his Privy Councell with him when in the great Councell if they might meet freely he believes that two third parts approve of his doings Are the most part of the Nobility and Gentry of this Kingdome no Body Are the flower of the Clergy and Universities no Body
Thomas Moore then Speaker for the House of Commons made in his Oration to King Henry the eight which I thinke hath been observed by all Speakers that ever were since That if in communication or reasoning any Man in thâ—… Commons House should speake more largely then of duty they ought to doe that all such offences should be pardoned Secondly these Privileges ought not to be destructive to the essence or Fundamentall Ends or righâ—… Constitution of Parliaments and such a Privilege iâ—… that the Observer claimes to be denyed nothing For whereas our Parliament is so sweetly tempered anâ—… composed of all estates to secure this Nation from the evills which are incident to all Formes of Government he that shall quite take His Majestyes negative voice away secures us from Tyranny but leaves us open and starke naked to all those popular evilâ—… or Epidemicall diseases which flow from Ochlocracy as Tumults Seditions Civill Warres and that Ilias of Evills which attends them and seemes to reduce the King be it spoken with reverence to the â—…ase of the old Woman in the Epigrammatist when she had coughed out her two last teeth Iam libere possis totis tussire diebus Nil isthic quod agat tertia tussis habet From hence appeares a ready answer to that question so often moved what great virtue is in the Kings single vote to avert evills from us that an ordinance of both Houses may not be binding to the whole Kingdom without His consent The case is plain it is of no great virtue against the evills of Tyranny but is a Soveraigne Remedy against the greater Mischiefes which flow from Ochlocracy and I trust God will ever preserve it to us Thirdly these Privileges must not transcend the condition or capacity of Subjects by making destructive reservations or so as to deck the Temples of inferiour Persons with the flowers of the Crowne Such a Privilege seemes this to be which the Observer here claimes a Dictatorian Immunity from all question to owe no account but to God and their own Consciences and yet by this new Learning they may take an account of the King What is this but to make Kings of Subjects and Subjects of Kings When some Ancients more skilfull in Theology then in Philosophy or Geography did heare of the Antipodes they reasoned against it as they thought strongly that then there were pensiles homines and pensiles arbores men that did goe with their heads downwards and Trees that did grow with their tops downwards they forgot that Heaven is still above and the Center below but what they did but imagine the Observer really laboureth to introduce to make whole Kingdomes to walke with their Heads downwards and their heeles upwards Fourthly the just measure or standard whereby all Privileges ought to be examined and tryed is not now the Law of Nature which is applyable though not equally to all Formes of Government this were to put the shoe of Hercules upon an Infants foote The Law of Nature may be limited though not contraried by the known Laws and Customs of this Realme as they shall appear by Charters Statutes Presidents Rolls Records Witnesses His Majesty cites a confession of the Parliament it selfe to prove that their Privileges extend not to the cases of Treason Felony or breach of Peace which heretofore hath been the common beliefe of all Men. And it seemes no satisctory Answer to say that therefore they extend not to these Cases because the Houses do usually give way in these cases for them to come to tryall either in Parliament if it be proper or otherwise in other Courts For it is a great doubt how a Commoner in case of Treason can be tryed in Parliament per pares by his Peeres and if it be in their own power to give way or not to give way the Privilege extends to these cases as well as others The case being thus why doe we quarrell one with another why doe noâ—… we all repair to the common Standard that is the Law of the Land and crave the resolution or information of those that are Professors in that study This will determine the doubt without partialiâ—… or blood and he that refuseth it let him be accounted as one that desires not to uphold but subvert the Fundamentall Laws of the Land upon a supposition of Feares and such cases as never happened in the World Now it appeares how the former objection is not applicable to the case in question where the Partyes are Commoners and ought to be tryed by their Peers where His Sacred Majesty is the Informer where the crimes are specified where a speedy tryall according to the known Law is desired where the Partyes themselves out of a love to their Country out of a care to prevent the effusion of Christian and of English blood out of a desire to vindicate their own reputations should themselves become Suiters for a lawfull hearing that they might not still suffer under such a heavy charge at which tryall they may legally plead the Privilege of Parliament if there be any such Lâ—…wfull Privilege Observer But let us consider the Lords and Commons as meer Counsellers without any power or right of counsailing or consenting yet we shall see if they be not lesse knowing and faithfull then other Men they ought not to be deserted unlesse we will allow that the King may choose whether he will admit of any Counsell at all or no in the disposing of our Lives Lands and Libertyes But the King sayes that He is not bound to renounce His owne understanding or to contradict His own Conscience for any Counsellers sâ—…ke whatsoever T is granted in things visible and certain That Iudge which is a sole Iudge and has competent power to see his own judgement executed ought not to determine against the light of nature or evidence of fact The Sin of Pilaâ—…e was that when he might have saved our Saviour from an unjust Death yet upon accusations contradictory in themselves contrary to sâ—…range Revelations from Heaven he would suffer innocence to fall and passe sentence of Death meerely to satisfie a blood-thirsâ—…y Multitude But otherwise it was in my Lord of 〈◊〉 case for the King was not sole Iudge nay He wâ—…s uncapaâ—…le oâ—… sitting Iudge at all c. And therefoâ—…e the King might therein with a clear Conscience have signed a Warrant for his Death though He had dissented from the judgement So if one Iudge on the same Bench dissent from three or one Iuror at the Barre from eleven they may submitt to the major number though perhaps lesse skilfull then themselves without imputation of guilt and if it be thus in matters of Law a fortiori t is so in matters of State where the very satisfying of a Multitude sometimes in things not otherwise expedient may prove not only expedient but necessary for the setling of Peace and ceasing of strife c. Where the People by publick Authority will seek any inconvenience
and Arragon and that this should be assented to by the Observers advise would not the present or succeeding Ages give him many a black blessing for his labour God helpe the Man so wrapt in errors endlesse traine First to say that the People mâ—…y seek to obtein â—…heir desires of the Prince by publick Authority 〈◊〉 〈◊〉 too Mâ—…gistrall or flâ—…t no 〈◊〉 a pâ—…rase inuâ—… to English eares Heary the sixt wâ—…s noâ—… Fyâ—…ht nor awefull Soverâ—…igne 〈◊〉 when thâ—… 〈◊〉 and 〈◊〉 presented a just reqâ—…st unto 〈◊〉 â—…ey 〈◊〉 〈◊〉 kâ—…ling upon their knee no siâ—… of Authorâ—…y 〈◊〉 〈◊〉 Secondly the King oâ—…es a strict 〈◊〉 〈◊〉 God of his Government and is bouâ—…d by his Ofâ—…ce to promote the good of His 〈◊〉 To 〈◊〉 〈◊〉 Aâ—… 〈◊〉 may be impeditive to this end 〈◊〉 〈◊〉 â—…isfaction of an humorous 〈◊〉 is noâ—… 〈◊〉 with this Obligation Thirdly His Mâ—…jesty conâ—…eive the thing now desired to be moâ—…e then a â—…ple 〈◊〉 single inconvenience that â—…selfe is deeply inteâ—…essed in it and not himselfe onely but his 〈◊〉 and all succeeding Kings and that it is not the desire of all His Subjects not yeâ—… of the greater â—…art much lesse of the sounder â—…art who 〈◊〉 it and therefore even upon the Observers grounds 〈◊〉 is â—…ot bound to give his assent Observer So much for the ends of 〈◊〉 Power I come now to the true Nature of it publick Conâ—…nt c. Answer We had done with Consent before but now we meeâ—… with it again such Windings and Meaâ—…ders there aâ—… in this Treatise But though Consent be like the titlâ—… set upon the outside of an Apothecaryes box yet iâ—… we look into the subsequent Discourse we shall find little or nothing of it The Observer tells us a long stâ—…ry that after the fall of Adam the Law written 〈◊〉 Mans brest was not sufficient to make him a sociaâ—… ble Creature that without Society Men could 〈◊〉 live and without Laws Men could not be sociablâ—… that without Magistrâ—…tes Law was a voide and vaâ—… thing it was therefore quickly provided that Lawâ—… agâ—…ble to the Dictates of Reason should be ratâ—…fied by common consent and that the execution aâ—… interpretation of those Laws should be intrusted 〈◊〉 some Magistrate To all which I readily assenâ—… witâ—… this animadversion that the rule is not catâ—… pantos or universally true Aâ—… for the order of Lawâ—… or Magistrateâ—… it is confessed on the one side thaâ—… sometimes the People did choose their Magistratâ—… and Law both together and sometime the Law before the Magistrate especially upon the extinctioâ—… of a Royall Family but oâ—…â—…he other side it cannoâ—… be denyed that many times very many times Magisâ—…es did either assume Soveraignty by just Conâ—… oâ—… were absoluâ—…ely elected without any sucâ—… restriction So much the Observer coâ—…fesseth a liâ—… after that in the infancy of the World most Nationâ—… did choose rather to submit themselves to the meere disdiscretion of their Lords then rely upon any limits and be ruled by Arbitrary Edicts rather then written Statutes In which case it is plaine that the Law is posteriour to the King both in order of Nature and of Time The Observer proceeds to shew That intrusted Magistrates did sometimes tyrannize over their People that it was difficult to invent a Remedy for this mischief First because it was held unnaturall to place a Superiour above a Supreme Secondly because the restraint of Princes from doing evill by diminuâ—…ion of Soveraigne Power doth disable them also from doing good which may be as mischievous as the other That the World was long troubled between these extremityes That most Nations did choose absolute Governours That others placed Supervisors over their Princes Ephori Tribuni Curatores which remedy the Observer confesseth to have proved worse then the disease and that the issue of it commonly was to imbroile the State in blood That in all great distresses the Body of the People was constreined to rise and by the force of a Major party to put an end to all intestine Strifes That this way was too slow to prevent suddain Mischiefes That it produced much spoile and effusion of blood often exchanging one Tyranny for another That at last a way was found out to regulate the moliminous Body of the People by Parliament where the People may assume their own power to doe themselves Right where by virtue of Election and Representation a few act for many the wise for the simple That the Parliament is more regularly formed now then when it was cal-called the Mickle Synod or where the reall Body of the People did throng together That the Parliament yet perhaps labours with some defects that might be amended that there are yet some differences and difficultyes concerning it especially the Privileges of it which would be resolved This is the summe of his Discourse here and a little after in the 21. page and the three pages following he falls into a needlesse commendation of the Constitution of Parliaments of their Wisdome and Justice how void they are of danger how full of advantage to the King and People how Princes may have sinister ends but that it was never till this Parliament withstooâ—… that a Community can have no private ends to misleaâ—… it In all which there are not many things to be mucâ—… misliked saving some results of his former false anâ—… seditious Principles as that the People are the Primogenious Subject of Power that the essentiall anâ—… representative Body of the Kingdome are all oneâ—… he might as well say that a whole County and 〈◊〉 Grand Jury are convertible terms To place a Superiour above a Supreme is monstrous and opens 〈◊〉 ready way to an infinite progresse which both Aâ—… and Nature abhorre I joyne with him in this thaâ—… to limit a Prince too far is often the cause oâ—… much mischief to a State But the Observer havinâ—… given a good meale casts it down with his Foot foâ—… after in the 40 page he tels us that the People had better want some right then have too much wrong done them It may be so it may be otherwise but ordinarilâ—… the sufferings of one year in a time of Sedition aâ—… more burthensome to the Subject then the pressures they sustein from a hard Soveraigne in a whole Age. A limited Commission may now and then bring ease to a Society but an unsufficient Protection exposeth them to an hundred hazards and blowes from Superiours Inferiours Equalls Forreiners Domesticks The Observer would have such a Prerogative as hath great power of Protection and little of oppression Can you blame him he would have his fire able to warm him but not accidentally to burn him Protection is the use oppression the abuse of power To take away power for fear of the abuse is with Lycurgus to cut down all the vines of Sparta roote and branch for fear of Drunkennesse By the same reason he will leave neither a Sunne in Heaven nor any Creature
gives the People the last Judgement of necessity and upon this Judgement a power to rise in Arms. If any Divine have unwittingly slipped into any such errours in not distinguishing between an absolute and respective Soveraignty which I can hardly beleeve yet the Observer might have held his peace for shame The one is so intent upon the Law of God the other upon the Law of Nature that they both forget the known Laws of the Land Especially he shews his spleen against Bishop sometimes calling them Popish Bishops If Popery were as ancient as Episcopacy the Observer might shake his Eares at it to small purpose Sometimes he stiles them the Praelaticall Faction If that be a Faction which is established by the Fundamentall Law of the Land and hath ever been a radicated Order of the Kingdom What may a man think of hiâ—… Revâ—…rend Coâ—…hmen and Buâ—…ton makers and the rest of that diversified Schismaticall â—…ie Sometimes he makes Levi and Simâ—…n Hierarchists and Papists the heads of the maine Malignants I â—…ope the Observer will allow some Government in the Church either of Councells or Synods or Assemblyes or Consistoryes or Senates or Presbyteryes either 〈◊〉 as it is at Genevah or Parochiall as it is in the Low-Countries either of Presidents or Moderators or Visiters Pastors Doctors Curate or not Curate Elders perpetuall or Annuall Deacons Widowâ—… or some of them for they are not yet well agreed about any of these In one place Elders are Commissioners to the Seigniory are placed and displaced by the Magistrate take an Oath of Obedience to the Magistrate in other places the King hath not so much as the place of a Lay-Elder except he be chosen Or perhaps the Observer is for none of all these wayes but as errant an Independent in the Church as he desires to be in the Common-wealth Here are many things very considerable in this businesse First That in doubtfull cases Melior est conditio vossident is Possession is a strong plea especially if it be of long continuance as this of Episcopâ—…cy is ever since Christianity was planted in this Kingdome This is certain Brittish Bishops have been of Note in Forrein Councells since the second Councell of Arles which is above thirteen hundred yeares to say nothing of Aristobulus mentioned in the Epistle to the Romans whom some good Authors make a Bishop in this Island They that shall goe about to shake in pieces such an ancient Institution which was brought into the Church either by the Authority or at least by the approbation of the Apostles had need to bring cleare proofes not blind conjectures about which they themselves cannot agree one with another Bishops flourished long in this Kingdom even when the Brittish Church enjoyed the Cyprian privilege and acknowledged no subjection to any forrein See whatsoever Secondly That which the Observer saith of Monarchy that our Laws are locked and Cabinetted in it in such manner that the wounding of the one is the bleeding of the other though he forget it throughout his Discourse is likewise true of Episcopacy that it is woven and riveted into the body of our Law Heare a Witnesse beyond exception For the Government of Bishops I for my part not prejudging the presidents of other Reformed Churches doe hold it warranted by the Word of God and by the practise of the ancient Church in the better times and much more convenient for Kingdoms then parity of Ministers or Government by Synods And presently after It is worth noting that the Scripture saith Translato Sacerdotio necesse est ut legis fiat Translatio It is not possible in respect of the great and neere sympathy between the State Civill and the State Ecclesiasticall to make so maine an alteration in the Church but it would have a perillous operation upon the Kingdome And therefore it is fit that Controversie be in Peace and Silence It would not be forgotten what was cited before out of Cartwright That as the hangings must be shaped according to the House so must the Civill Government be conformed to the Government of the Church The Anabaptisâ—…â—…egan with Bishops but at length the Emperour was â—…ith them but Carolus a Gandavo Charles of Gant 〈◊〉 leave it to others to Judge by what fate or fortune it â—…omes to pâ—…sse beyond the Sea That wheresoever any â—…ther Regiment of the Church takes place if the faâ—…ourers of it be the Major part and have power in their â—…ands it either finds or makes a popular State every â—…ans own imaginâ—…ion will supply him with instances And this may be the reason why Calvin a wise man 〈◊〉 an Epistle to the King of Polonia doth represent â—…ot the Disciplinarian but Episcopall Government as â—…tter for Monarchyes Having shewed the Regiment â—…f the Primitive Church by Patriarkes Primates and â—…ishops he proceeds thus As if at this Day one Arch-â—…ishop should be over the illustrious Kingdom of Polonia â—…t to domineere over the rest or arrogate their right unto â—…imselfe but for orders cause c. And further there â—…ould be a Bishop in each Citty or Province to attend peâ—…uliarly to the preservation of Order marke his Reaâ—…on even as Nature it selfe doth dictate to us that in â—…very College one ought to be chosen upon whom the prinâ—…ipall care of the College should rest Thirdly Episcopacy is not onely ancient and ceâ—…ented into our Laws but also was universally reâ—…eived without any opposition or so much as a queâ—…tion throughout the whole Christian World among â—…ll sorts of Christians of what Communion or â—…rofession soever they were Graecian Latin Rusâ—…an Armenian Abissine c yea even among those â—…ho by reason of the great distance and remotenesse â—…f their Countryes never heard of the Pope nor of the name of Rome ever since the Apostles did tread upon the face of the Earth untill this last Century of Yeares so farre is it from being a Relick of Popery And the Observer is challenged to name but one Church or so much as one poor Village throughout the whole World from the Dayes of the Apostles till the year of Christ 1500 that ever was governed without a Bishop I except the Acepâ—…ali or such disordered Persons that had no Governmenâ—… at all or to name but one Lay-Elder or one Ambulatory Bishop that governed by turne or course in thâ—… Primitive times in the whole Catholike Church before the year 1536 when Calvine came to Geneuah We find the proper and particular names of Apostles Evangelists Bishop Presbiters and Deacons in the Scriptures in Councells in Ecclesiastical Historyes in the Fathers if he and all his Friendâ—… be not able out of all these Authorities to name onâ—… particular Lay-Elder or ambulatory Bishop thâ—… reason must be because there never was such a Creature in rerum natura And his Elders in Saint Ambrose and Saint Ierome are much mistaken hoâ—… should they be otherwise the one Authour being 〈◊〉 Bishop himselfe and the other
they have had Men of that order not onely notable Martyrs but most excellent Pastors and Doctors let them injoy that singular Blessing which I pray God may be perpetuall to them And elswhere speaking of humane Episcopacy as he is pleased to call it he addes Quo sane fruantur c. Which let them injoy who perswade themselves that the right use of it may be observed by them And again Absit ut hunâ—… ordinem c. Farre be it from me to reprehend this Order as rashly or proudly erected though it be not a Divine or meerely Apostolicall Constitution whereof rather no man can deny that there may be great use as long as good and holy Bishops are over the Church Let them injoy it therefore that will and can This poterint and can was well put in it was not the unlawfulnesse of the order but the inconsistency with the present State of Genevah which excluded it thence And having spoken of the Apostolicall Canon and the Superiority of the Arch-Bishop above his Fellow Bishops he concludes quid aliud hic statuitur c. What else is here decreed but that order which we desire to be restored in all Churches It appeares then plainly by the confessions of Protestant Churches by the Testimonyes of the most learned Divines yea even of those that lived under another Government that if Bishops be not necessary yet at the least they are lawfull It appeares that three parts of fower of the Protestant Churches have either Bishops or Superintendents which is all one and that those Churches which have neither yet they have some principall Men Primarios which have as much power as Bishops viis modis But if we should be contented to leave three parts of Protestants to joyn with the the fourth shall we find them unanimous in this No such thing The Helvetian and other Churches ascribe the Government of the Church to the Magistrate and allow no Lay-Elders But Genevah and her Daughters to their Pre byteries yet neither the Mother is like the Daughters nor the Daughters very like one another as hath been shewed in part before in this Treatise and the Independents are for neither of these wayes And all learned men doe acknowledge our English Episcopacy to be lawfull yea even the present President and Pastors of Genevah do the same So if we desire consent either of Protestants in particular or of Christians in generall yea of the whole Catholicke Symbolicall Church it is best for us to keepe us where we are My tenth and last Consideration riseth higher That according to their grounds who have been the greatest Oppugners of Episcopacy the Government of our English Bishops is not onely lawfull but for the most part necessary nor onely necessary but even an Apostolicall and Divine Institution This seeming Paradox is yet most certain and their opposition hath been but beating the aire For the clearer manifestation whereof we must know First that the greatest impugners of Episcopacy do not seek to bring such a Parity into the Church but that by the Ordinance of God and Dictate of Nature one Presbyter ought to be President above the rest Ex Dei ordinatione perpetua necesse fuit est â—…rit ut in Presbyterio quispiam loco dignitate primus actioni gubernandae praesit cum eo quod ipsi Divinitus attributum est 〈◊〉 〈◊〉 was it is it ever shall be necessary by the perpâ—…uall Ordinance of God that some one in the Presbytery as chief both in place and Dignity be set over the Action to govern it He saith that even then whilest the appellation of Bishops and Presbyters was common yet the Presbytery had suum aliquem primum proestâ—… Presbyterum Some one to be their ruling or Presidentiall Presbyter He saith Saint Ierome did not so dote as to dream that no one of the Presbytery was set over the whole company in the Apostolique times and takes it as a great injury that any Man should thinke that they did goe about to abolish omnem unius Episcopen in vel supra caeteros compresbyteros All Superspection or Superintendency of one above his Compresbyters To the same purpose saith Calvine it is no mervaile that the twelve Apostles had one among them to govern the rest this we have from Nature the disposition of Men requires it that in every Company though they be equall in power yet one should be as Moderator Secondly they teach notwithstanding their drowsie groundlesse new-hatched conceit that this Presidency went successively by turnes among the Presbyters that either in the dayes of the Apostles or immediately from them this Episcope or office of Superintendency became Elective and perpetuall to â—…e man Quod certe reprehendi nec potest nec debet which certainly neither can nor ought to be blamed especially seeing this ancient Custome was observed in the famouâ—… Church of Alexandria I am inde a Marco Evangelistâ—… Even from Saint Mark the Evangelist So as the Office is of Divine Institution the forme of Application onely is Humane yet not meerly humane neither Humanum non simpliciter tamen sed comparate â—…lla cum Patrum tot Ecclesiarum injuria appellavero I may caell it humane not simply but comparatively without injury to the Fathers or so many Churches Indeed all the Churches in the World and all the Fathers that ever were Thirdly This Presidency of Order which they give to one man even upon their own grounds is not destitute of all kind of Command and power He hath jus regendae communis actionis a right to moderate the Action of the College or to govern the common Action and that cert is lâ—…gibus according to certain Laws First a right to moderate the Action that is to 〈◊〉 the Presbyters to appoint the time and place to propose matters to collect the Suffrages either by himselfe or by such as he appoints to pronounce Sentence Secondly certis legibus according to certain Laws this brings us to the true question where the water sticks The Law of God and the lawfull Constitutions of the Church must be the just measure and limits of this Presidents commands of his Compresbyters obedience So that Tyrannicall absolute Arbitrary power which is usurped by the Bishop of Rome and his Instruments is rejected by all Partyes on the one side and all Anarchy Ataxy and Disorder on the other side yet this is not all Fourthly this President hath another power by Divine Right or at least by Divine Right is capable of another power that is not onely to moderate the whole Action by his Authority but also to execute that which is decreed by common consent Neither can this executive Power in reason be limited to the meer execution of Personall Decrees concerning particular Persons but every where it extends it selfe to preparatory Actions and matters of Forme Neither doth it rest here but admits or at least
may admit a greater latitude even to the execution of Laws especially where the Law is cleare the Fact notorious or evidently proved where Succession and the publicke are not concerned where the presence of the whole College is not so usefull or convenient and might rather incomber then expedite the businesse and all this more or lesse according to their certain Laws the severall constitutions of severall Churches alwayes reserving to the whole Body of the Clergy or those who by election or prescription do represent them the power of making and altering Laws and Canons Ecclesiasticall and to His Majesty His Royall power of assenting and confirming and to the representative Body of the Kingdome their power of receiving principally in cases of moment and likewise reserving to the Clergy either Rurall or Cathedrall according to their distinct capacityes their respective power of counselling consenting or concurring according to the constitutions of the Church and Laws and Customes of the Realme which as they are grounded upon naturall reason and equity so they are no way repugnant to the Law of God whereof there are yet some Footsteppes to be seen in our Ordinations our Deanes and Chapiters our Semestriall Synods c. And if these old neglected Observations were a little quickned and reduced to their primogenious temper and constitution perhaps it might remedy sundry inconveniences and adde a greater degree of Moderation and Authority to the Government of the Church Who can be so stupid a to imagine that the State and Church and People of Genevah at this day do not or may not give to the President of their Ecclesiasticall Senate a perpetuity of Government for his Life or inable him to execute some Ecclesiasticall Laws so farre as they shall see it to be expedient for the good of that Church and Commonwealth without swerving from the institution of Christ This might yet further be made plain by those comparisons and representations which 〈◊〉 and 〈◊〉 do bring of this Episcopall or Presidentiary power of a Consull in the Senate of a Praetor in the Court of a Provost in a College of a Steward in a Family They ought to looke upon him as their Superiour and Governor and be upon them as Brethren and Fellow-Elders This is that which our English Bishops claime whereunto they are intitled by the Fundamentall Laws of the Land How farre the power of the keyes of Ordination or Jurisdiction is appropriated or committed to them singly or joyntly by Divine Ordinance of which Subject great Authors upon great reasons have declared themselves yet in our case it is not so questionable where another Lawfull Right is certain and this clear satisfaction of Conscience they want who are so busy seeking after new devised forms of Ecclesiasticall Regiment And herein I may as justly admire the excellent temper of our Church Government asthe Observer doth of the Civill I hope it is not in either of us ut Pueri Iunonis avem As Boyes praise the Peacock with a desire to pluck his feathers The Clergy present the Bishops approve His Majesty confirmes the Parliament receives all parties have their concurrence so as no Man can be prejudiced without his own act If we alter this Frame we shall have a better in Heaven I fear not upon Earth So then we see that upon these very grounds which have been laide by the greatest Opposers of Bishops in this Age 1 there is a subordination of many Pastors to one President by Divine Ordinance 2 This Presidency or Superintendency or Episcopacy all is one may without violation of Divine Ordinance be setled upon one Man for his life 3 This Person so qualified hath a power essentially belonging to his place to rule and moderate the publick meetings and Actions of the Church yea to execute the decrees of the whole College 4 This executive power may receive a further latitude or extent from the positive Laws of Men. What is the result of all this but that as Presbyterate or the Office of a Priest Presbyter or Minister I shall wrangle with no man about a name whilest we agree upon the thing is of Divine institution yet neverthelesse there is something Humane annexed to it as for instance the Assignation of a single Pastor to a particular Parish which custome was first introduced by Evaristus long after Bishops were spread over the World so likewise Episcopacy it selfe is of Divine Right yet something may be added to it some extent of Power which is humane and yet very lawfull and expedient wherein every Church is to be its owne Judge If to this which hath been said of the Antiquity Universality Aptitude Security of this way c we shall adde that Ambrose Austin Chrisostome Cyprian Basile Athanasius and very many others the lights of their times were not onely Defenders of Episcopacy but Bishops themselves there can remain no scruple to us of this Nation what Church Regiment is to be desired But some do say why then doe sundry eminent Protestant Authors inveigh so much against Bishops I answer It is not simply against their Function but against the sloth of some for not preaching or the pride and Tyranny of some particular Persons and more especially it is against the Romish Bishops I might cite many Witnesses to make this as clear as the Sun take one of many Neque vero cum hoc dico â—…jus Tyrannidis eos Episcopos veram Christi Religioâ—… prositontes docentes intendâ—… absit a me tam imâ—…dens arrogantia Neither while I say these things doe â—…ccuse those Bishops of Tyranny which professe and teach â—…e true Religion of Christ Far be such impudent Arroâ—…nce from me And further he saith that they are to be knowledged observed reverenced as faithfull Pastors the Christian Church And in an Epistle to the â—…en Arch-Bishop of Canterbury he expresseth himâ—…fe that such invectives were never intended against â—…e Government of the English Church but against â—…ti-Christian Tyranny Secondly it is objected that they did put away Bishops I answer that some Reformed Churches were â—…der Bishops who were out of their Territories as â—…e Helvetian Churches under the Bishops of Conâ—…e others were under Bishops of another Comâ—…union as the French Churches others could not both â—…ntinue Bishops and bring in the Reformation of Reâ—…ion as the Church of Genevah others did retein â—…shops under the name of Superintendents because â—…e old name had been abused by the Psuâ—…do Episcopi or â—…se Bishops in the Church of Rome by the same â—…son we should neither use the name of Christ nor â—…postle nor Gospell nor Sacrament because there â—…ve been false Christs false Apostles false Gospels â—…se Sacraments lastly many reteined both the name â—…d the thing as the Churches of England Sweden 〈◊〉 And generally all Reformed Churcheâ—… were deâ—…ous to have reteined Episcopacy if the Bishops that â—…en were would have joyned with them in the Reformation This is evident for the Germane Churches by the