when they chose them to be their Representatives so that their power is not of themselves as calumniating Non-scribers would perswade us Neither will what they quote from the Armies Declaration be of any avail to them We say with the Army that the continuance of the same Representatives is not fit to be drawn into ordinary presidents least their power should be corrupted by length of time yet in times of extraordinary danger when a great part of the people are disaffected to the meanes of their own safety and elections are like to be made of such as would return us it may be to our former slavery it is not unjust that power be continued in the hands of the present faithful Representatives who yet are not to be looked upon as those that must ever continue in tâ—at power that which we engage to is to the â—ommon-wealth of England which intimates as was said before succession of Representatives Non-scribers adde to prove the power unjust Plea c. page 30. 1. That it is against the Ancient and indubitable legal Rights and Tithes of the King Prince and Peers to their respective hereditary dignities and powers To this may be answered 1. That those powers and dignities in their first institution were not hereditary this hath been proved already And further things properly transmittable from Father to Son as Inheritances are onely bona fortunae 1 Chron. 23.1 with 1 Chron. 29.22 Kingdoms and dignities are not so communicable Solomon was no King till the people had the second time anointed him notwithstanding his designation by his Father Ahaziah notwithstanding the death of his Father and elder Brethren 2 Chron. 22.1 was not King till the Inhabitants of Jerusalem had made him so Lex Rex Quest 10. pag. 76. Nor doth the setling the Kingdome succession upon a line by a Law make the Kingdome the Kings Inheritance Arnisaeus saith that the Son hath not the right of reigning as the patrimony of the people but as a propriety given him by the Law of the Kingdom by his parents which assertion saith Mr. Rutherford is all one as if he said the Son hath not the right of reigning as the patrimonie of the people but as the patrimony of the people which is good non-sense for the propriety of reigning given from Father to Son by the Law of the Kingdom is nothing but a right to reign given by the Law of the people and the very gift and patrimony of the people He adds many arguments to prove that Kingdoms go not as a heritage from Father to Son To whom I may adde Junius Brutus who denies Vindiciae contra Tyrannos Quaest 3. and that upon good grounds that the King is either proprietary or so much as the usufructuary of his Kingdom much lesse hath he such an interest in it as a man hath in his Inheritance An Inheritance may be sold pawned changed Grotius de jure belli pacis l. 1. cap. 4. §. 10. none of these can be attempted by a King to be done to his Kingdome without losing his right to it For the Lords Mr. Rutherford saith That the King can make heritable Judges more then he can communicate faculties and parts of judging I doubt Riches are of Fathers but not promotion c. Honour is properly the reward of vertue and consâ—quently not properly communicable to posterity Our Lords were at first elected by the People and enobled for their virtues 2. Though we should grant that the Kings had the Kingdom and the Lords their dignities as Inheritances yet the right to an Inheritance may be lost may be seized Where God hath not bound conscience men may not binde themselves and their posterity but God hath not bound any Nation irrevocable to any Royall line or form of Government Ergo No Nation can binde their conscience Lex Rex que 10. pa. 78. or the conscience of posterity either to one Royal line or irrevocably and unalterably to Monarchy Superior verò universus populus quÃve eum repraesentant Vindicae contra Tyrannos Quae. 3. p. 178. So Mr. Rutherford Junius Brutus tels us that a Tyrant doth In populum tanquam in Feudi Dominum feloniam committere commit Felony against the People as against the Lord of his fee and adds from Bartolus that he may be deposed and punished by his Superior and his Superior is the whole people or they that represent them Treason according to our Laws taints the blood and makes the children of Traytors uncapable to succeed in any thing of inheritance The Kings of England were as much subject to Law as any private Subject Soveraign power of Parliaments part 1. pag 34. Though in exhibendo jure he were maximus yet in suscipiendo jure saith Bracton in Mr. Prinne minimo de Regno suo comparatur He was to be obedient to suffer right as well as others of his people saith another Lawyer out of the Mirror an ancient Law-book No wrong therefore is done to King or Prince Rights of the Kingdom p. 31. they having committed Treason against their own Crown and dignity by raising war against their people and so falling from all right to their hereditary dignities Had it been true that Naboth had blasphemed God and the King it had been no sin in Ahab to have seized upon his vineyard though the inheritance of his father Non-scribers brethren that call themselves a Pack of old Puritans shew themselves to be a Pack of Episcopaturient Parafites by their making the King as innocent as Naboth and the Kingdom as much his Inheritance as Naboth's vineyard was to him The Lords also by denying concurrence with the Commons in proceedings against the Tyrant and his friends betrayed as much as in them lay the Common-wealth and therefore are deservedly removed from that Authority they had The great Charter saith Nulli negabimus nulli vendemus nulli differemus justitiam The Lords denying justice broke that which is if any be a fundamentall Law of the Nation and for that are justly punished by the Commons their Superiors A Judge delaying or denying justice may be deprived of his office and why not the Lords whose office if they be not of the nature of those officers who have nec munus nec usum was judicial onely as was shewed before 2. That it is against the House of Commons Plea c. p. 31. but to prove that they bring nothing but the crambe bis cocta of the Engagement of the Declaration of April 17. 1646. the putting of the name of the House upon a part and the prostitution of priviledges all which have been spoken to already 3. That it is injurious to the people Plea c. ibid. In civium numero non sunt habendi violatores enim sunt humanae societatis aut certà proditores Buchanan de Jure Regni apud Scotos 1. In bereaving them of their Ancient Authority imposing a new
blood c. which he makes the reason and foundation of the following sentence Ezekiel 21.24 25 26. Plea c. pag. 21. Nec expenditur hodie quâ culpâ exsiderint possessione quam bonam de se spem praebeant quam integroriâ— administratione futuros existimens quos susceperint â—uendos Vna causa satis fuerit propinquus est Rex natus est repeâ—it nativum â—uulum Denique in postremis habetur cui popularis status afflicti Reipub funditus collabentis culpa imputetur Excidium Holmense p. 505. Truths manifest p. 23. Ezekiel also threatning the same judgement saith Because you have made your iniquity to be remembred in that your transgression is discovered so that in all your doings your sins appear because I say that ye are come to remembrance ye shall be taken with the hand And thou prophane wicked Prince of Israel whose day is come when iniquity shall have an end Thus saith the Lord God remove the Diadem and take off the Crown this shall not be the same Nebuchadnezer had no lawful superior power over the King of Judah nor the Medes and Persians over the King of Babylon but the demerits of the Kings of Judah and Babylon made their dispossession just before God These Apostate Non-scribers have oft presented the late King before God as a man of blood as a perjured oppressing Tyrane and yet now he is blameless We never heard yet alledged say they nor do acknowledge good reason or ground on mans part for the matters to have been done These men sin being condemned of themselves We may justly say as Albertus Kranâ—zius saith in a like case Christiern the second King of Denmark and his Son were expelled out of the Kingdom for Tyranny both of them breathed out threatnings agâ—inst them that had exiled them yet many favour'd them in their deserved misery who detested them in their exorbitant Domination It 's not regarded now saith he by what fault they fell out of possâ—ssion what hope of future amendment may be expected how just they will be in governing by them that have undertaken to defend them but one thing is enough he is a Kinsman a King born he endeavours to recover his native Title Lastly none considers to whom the fault of the peoples afflicted State and of the impendent utter ruine of the Common wealth is to be imputed The blood which hath been shed by the two last Kings which a Scotch Writer of no mean credit saith to be more then was shed by the Roman Emperors in the ten primitive persecutions the guilt whereof might have lain upon the Nation might the prerogative Lords and câ—joled Commons have had their will this blood I say of so many precious Saints and Martyrs as Non-scribers have often called them is now no more regarded by them then the blood of so many Doggs in a time of pestilence Yet since they put the question upon this issue that the warrant of persons is requâ—site to make an action lawful I shall joyn issue with them in tâ—is particular hoping not to be non-suited at the Bar of reason To evidence the want of Authority in the persons they lay down this proposition Plea c. Pag. 21. If a Government be made up of three Estates every of them being fundamental to the constitution one of them cannot take away another I distinguish of fundamentalness there are two sorts of foundations 1. A natural foundation as the ground soyle earth or native Rock is to an house 2. Artâ—ficial as the stones that are first laid upon that soyle or natural foundation So there are two sorts of Estates fundamental to the constitution of every publick body that deserves to be called free 1. Those that are originally fundamental viz. a common supreme Councel of Deputies or Representers freely chosen by the people in whom the power of making Lawes constitutions and offices rests 2. Those that are ascititiously fundamental or derivatively builded up upon the originally fundamental estate who have a power judicial or executive committed to them Those fundamental Estates which are derivatively so may not take away one another but the estate which is properly fundamental may take away the other and be blameless in case of breach of trust or abuse of power entrusted to them But Non-scribers apprehend tâ—e powers they speak of to be equally Coordinate Plea c. page 22. so that the whole force of the sence of their argument is this Coordinate Powers have no power to take away each other King Lords and Commons are coordinate Powers Ergo. I deny both propositions and shall shew first the erroneousness of the Minor In so doing I shall shew them 1. Rights of the Kingdom p. 86. alibi passim That the power of the King was not a coordinate power with that of the Representatives of the people not an absolute and perfect coordinate which appears 1. From the nature of the Kings power Our Lawyers divide the powers of this Nation into Original Judicial and Executive and affirm that the Kings power was but executive To make executive power coordinate with the nomothetical and original Rights of the Kingdom p. 19. were to make the Executioner equal with the Law-maker 2. From the Coronation-Oath wherein the King sware fealty to the State and Lawes as his higher Lords that I may speak as the Authour of the Rights of the Kingdom in which Oath the King sware to hold and guard Soveraign Power of Parliaments part 2. p. 75. confirm and defend the Lawes which the Commons should chuse De tuendo custodiendo justas Leges consuetudines Ecclesiae ac de faciendo per ipsum Domirum Regem eas esse protegendas confirmandas quas vulgus juste rationabiliter elegerit as Mr. Prinne gives us that clause of the Kings Oath out of a Parliament Roll and out of the Book of Clarencieux Hanley in English thus Will you grant fulfill defend all rightful Laws Customs which the Commons of the Realm shâ—ll chuse The King shall answer I grant and believe That power cannot be coordinate with the Law giving power which is obliged to all and cannot alter an apex or Title of those Lawes that another Estate shall chuse The mutual stipulation between King and people Appendix page 48. was that which was constituted a King of England before this past he was but Regni candidatus Non-scribers tell us that the Kings of this Realm are legally and actually Kings upon the death of their respective Predecessors and this say they Lawyers and Historians will satisfie among whom they chose Speed to urge in which quotation I profess I admire that men brought up in the study of good Arts to say nothing of the conscience they pretend to should so over-shoot themselves as not to be able to distinguish between what Speed relates as an Historian Speed Rich. 1. S. 3. and what corrupt glosses he put upon
yet will not this make them coordinate with the Commons The means are subordinate to the end The Patron is but an honorary servant to his Client As if a Patron having bargained with his Clients adversarie for a share of the profits should betray his Clients cause he would not hurt his Clients rights So the conspiracie of great ones to the hurt and destruction of the people cannot detract any thing from the Peoples right They will fall into the punishment the Law ordains against prevaricators and the Law will permit the people to choose another Patron and pursue their own right Thus Junius Brutus If the House of the Lords then refuse to judge Hamilton's Army publick Enemies if they continue in a destructive Treaty with a Tyrant their Judiciall power which themselves desert is lost The legislative power may deprive them of that power for the future 2. The Fountain of this power considered will shew them not to be coordinate with the Commons The fore-praised Author out of the British Antiquities and an old Law-book called The Mirror shews that the Lords were raised out of and by the Commons of late they have been made by the King Now if the King be not coordinate with the Representers of the People much lesse can they be that have their Honor from him The Kings of England heretofore have been constrained by Parliament to lessen the number of their meniall Servants And although the late Kings might be tolerated to make mushrom Lords to furnish out a Court-jigge or a Coronation-Pomp yet could they make none to equall them who gave Laws to them both the Commons of England 3. The Lords sate in a personall capacitie onely not so much as representing their own Families thence were their Brethren and Sons Members of the House of Commons as Denzill Hollis Nathaniel Fienes c. So many single Persons cannot equall the Representives of the whole people The Senate of Rome who had a greater power then the House of Lords were not equal to the Colledge of the Tribunes of the people Neither should we grant that there were an equalitie of Power between the King Lords and Commons would it follow that therefore they have no power one over the other There are exceptions from the generall rule Par in Parem non habet potestatem Neither will their Major be firm should we keep the terme coordinate For 1. The End of Coordination of Powers is that if one should prove pernicious to the Common-wealth there might not be wanting a Power to restrain it and if necessity require the taking of it away there might be a face of publick Authoâ—ity remaining 2. Superiors may become obnoxious to their Inferiors when by contract they make themselves so Much more may coordinates become obnoxious to each other if they be all bound to pursuc one end and some prevaricate 'T is to be confest indeed that ordinarily Coordinates have no privitive power over one another but yet the Rule holds not in all cases where one Coordinate endeavors to destroy the End for which it was ordained the other Coordinate may remove it The End of both their Coordination being to be preferred before the means conducing to it and it being not onely dangerous to let the remedie fall into the hands of the multitude but unlawfull for the innocent coordinate to quit his station Constantine the great Pari potestate praeditiâ— notum verò est quod vuâ—go dicitur Par in parem non habet imperium nibil-ominus tamen Conâ—tantinus Licinium Christianos in iisque nobiles plaerosque religionis sive causâ sive praetextu re egantem divexantem contrucidantem bello peâ—it religionis liberum cultum Christianis vi impetrat fidem denique frangentem ad pristinam saevitiam revertentem Thessalonicae morte mulciari jubet Vindiciae contra Tyrannos Quae. 4. pag. 204. and Licinius were both of them Emperors in one Common-wealth of equall power and that vulgar saying is well known Par in parem non habet potestatem yet notwithstanding when Licinius banished vexed killed many Christians and among them many Noble ones either because of their Religion or under that pretence Constantine waged war upon him by force procures for the Christians free exercise of their Religion and at last puts Licinius to death at Thessalâ—nica who had broken his promise and returned to his former cruelty so Junius Brutus who also adds that when the Empire was divided between Constantines three Sons and Constantine the eldest maintained the Arrians Constans the yongest the orthodox the yonger threatned the elder to force him to restore Athanasius whom he had banished The Consuls were set up at Rome Ne potestas soâ—â—tudine corrumperetur Florus l. 1. c. 9. Suet. in Julio cap. 49. Plea c. p. 21. lest a power without companion should turn to Tyranny the Consuls therefore were coordinate yet when Caesar affected Tyranny his Collegue Bibulus proscribed him and had he had strength would doubtlesse have executed the sentence he pronounced But yet there is another stumbling block Those that removed the King and Lords are not an House of Commons they are but a parcell of one of the Estates the majority being excluded by them and kept from them by force of Arms. To which I answer 1. By denying that the House did exclude the Members that were excluded at the first the force that was used in exclusion of them was not by the consent of their fellow-Members as appears by their Message to the Generall and Councell of War Neither doth the omission of the prosecution of the Authors of it argue their consent The punishment of an Error suppose that this we speak of be one may be omitted by Authority if such punishment be dangerous to the Publick Peace Page 9. 10. but of this the Exercitation Answered speaks sufficiently 2. By denying that they are kept out by force but by Order of the House which hath power to punish its offending Members The majority of the House that followed the King to Oxford were excluded by Vote The House past severall Votes to exclude them that would not take the Covenant yet none ever questioned the remaining part to be an House unlesse it were the Oxford Cavaliers The majority of the Lords House were excluded by Vote Petition of 12500. c. and kept out by the minor part and yet the Lancashire Ministers call this minor part The House of Peers in their Petition and their Answer received August 25. 1646. the Answer of the House of Peers And I can conceive no reason why the exclusion of some Members out of the House of Commons should make them no House and the exclusion of the major part of the House of Peers not make â—hem no House unlesse it be that Non-scribers have forsâ—ken their former principles But Plea c. p. 23. this Vote by which the majority was excluded was contrary to the Vote of that
Democratical the Government of these Deligates is Oligarchical they being chosen out of the wealthiest of every County and both these put together make up a Pol ty as Aristotle calls it but as Plato whose termes differ from Aristottles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To prove the erection of this unlawful they much labour but that toyl of theirs might very well have been spared The people of this Land have in all ages had a supreme power over their King and Lords which was exercised by their Representatives who by old Lawes were to meet twice a year and by a latter Statute once a year though the Tyranny of wicked Kings had brought that of late into a disuse Which prescription notwithstanding cannot take away the Peoples right It s vulgarly said That no prescription lies against the Kings Exchequer much less can a prescription lie against the People who are greater then the Prince and for whose sake the Prince hath that priviledge Dicores quatuor esse in quibus sita est tota vis Majestas Reipublicae nimirum Jus Magistratuum creandorum Deliberationes omnes de Pace de Bello Legum lationes tandèmque Provocationes Donatus Janottius de Repub Venetâ pag. 59. Speed Book 5. Chap. 5. Suma imperii bellique administrandi communi concilio commissa est â—assivellauâ—e Nostro adventu commoti Britani hunc toti bello imperióque praefecerant Caesar Commenter lâ—b 5. Spe. d. lib. 7. cap. 1. S. 6. saith Junius Brutus The form of Government is that which dat esse operari as Non-scribers say and natural order and reason requires that propriae operationes propriae formae respondeant if therefore it be proved that the Representatives have ever had de jure a power to do the Acts proper to the supreme power it will follow that the supreme power was formally in them and that they were a Common-wealth having supreme Authority in themselves Let me here use the words of a learned Florentine I say saith he that there are four things in which the whole power and Majesty of every politique body is placed the power of creating Magistrates all deliberations concerning Peace and Warre making of Lawes and the last appeales If therefore the Representatives of the people have had the right to create all general Magistrates to consult of Peace and Warre to make and abrogate Lawes and the priviledge of the last appeal to be made to them they have been the supreme power That they have had these Rights I shall prove and begin first with Creation of Magistrates Julius Caesar before whose entrance into this Island the times are obscure through whose mists no Eagles eyes can pierce as the beloved Historian of Non-scribers Speed confesseth found the supreme power of electing Magistrates in a Common-Councel of the people The chief power of Rule and administring the Warre was by a Common Councel committed to Cassivellauâ—e And again the Britâ—ains being troubled at our landing set him that is Cassivellaune over the whole Warre and Empire The Common Councel then that made Cassivellaune King and General was a Tan-Britanicum an Assembly representing all Britain And when the Romans quitted their tooting here the Britains being invaded by the Picts joyntly united their meanes and powers and with one consent elect a King to manage those affairâ—s which was Vortigerne whom afterwards they deposed and elected his Sonne Vortimer But I must for further satisfaction in this point refer them to the Authour of the Rights of the Kingdom who after many Examples of such Creation of Kings concludes thus We see the Law at lest the â—ustom of those times both for electing anointing judging and executing of Kings themselves among our British Ancestors Conceâ—ning our Saxon Ancestors saith the same Authour the Minor is very clear that they did elect or chuse their Kings from among themselves who well agrees therein with the witness of Tacitus Rights of the Kingdom p. 55. Rights of the Kingdom p. 35. Reges ex nâ—bilitate duces ex virtute sumunt Tacitus de moribus Germanorum Soveraign Power of Parliaments part â— p 78. Soveraign Power of Parliaments part 2. p. 41. Soveraign Power of Parliaments part 1. p. 91. who speaking of the ancient Germans of whom the Saxons were a branch saith they chose their Kings for their Nobility their Leaders for their vertue which Testimony informs us that they enobled some for their vertues and out of them chose their Kings Concerning the Normans I have spoken already To conclude with the Testimony of Mr. Prinne who tells us That our Parliament and Kingdom observe the opposition anciently have both claimed and exercised a Supreme Power over the Crown of England it self and that we may be sure what he meanes by Parâ—iament in another place he saith out of Fortescue Chancellor of England in Henry the sixth's time that Kings were created and elected at first by the general Votes of the people from whom alone they receive all their lawful Authority having still no other or greater lawful power then they conferred on them only for the defence of Lawes Persons Liberties Estates and the Republicks welfare which they may regulate augment or diminish for the common good as they see just cause Neither did the setting of Kings over them divest them of the supreme power it self if Mr. Prinne while a defender of Parliaments may be credited I doubt not saith he but our Parliaments Kings and all other Nations would say they never intended to erect such an absolute eternal unlimited Monarchy over them and that they ever intended to reserve the absolute original soveraign jurisdiction in themselves that if their Princes should degenerate into Tyrants they might have a remedy to preserve themselves An impregnable evidence that the whole Kingdom and Parliament representing it observe what is a Parliament the Representative of a Kingdom and then not the Lords that represent no body are the most Soveraign power and above the King because having the supreme jurisdiction in them at first they never totally transferred it to the King but reserved it in themselves I should tire my Reader should I say all that might be said concerning the Commons Creation of other Magistrates Soveraigâ— Power of Parliaments part 2. p. 7. Mr. Prinne brings in Sir Edward Cook affirming that the Lord Chancellor Treasurer privy Sealâ— Lord chief Justice Privy Councellors Heretoches Sheriffs with all Officers of the Kingdom of England and Constables of Castles were usuâ—lly elected by the Parliament to whom of ancient right their election belonged who being commonly stiled the Lord Chancellor Treasurer chief Justice c. of England not of the King were of right elected by the Representative body of the Realm of England to whom they were accountable for their misdemeanors Rights of the Kingdom p. 77. 78. 2. All consultations of Peace and Warre of right appertain to the Commons of England It was the great Councel saith the Authour of the Rights
of the Kingdom that treated with and against the Romans at all times and when the Romans could not attend the Britains feare it was this that called in their Neighbours first and after the Saxons All military Affairs saith Mr. Prinne of the Kingdom heretofore have originaâ—ly of right for their original Soveraign power of Parliaments part 2. p. 5. determining councelling disposing part bin ordered by the Parliament the Ministerial only by the King The Act of 28. E. 1. settles the Militia in the subject saith Mr. Derham and addes the absolute and general power of the Militia and the Militia positive or regulated by positive Lawes Manuel of the Rights of Parliament p. 95. 98. are both by Law invested in the people or the Representative body the Parliament And again the same Authour whose whole book tends to vindicate the supreme power of the Peoples Representatives saith We may safely conclude that the Subjects right and consequently of their Representative body to dispose of the Militia and great Offices of the Kingdom remaineth yet undoubted to this day In a word neither King nor Lords joyntly nor severally had any power to mould or manage a new Militia or raise a man or leavy a farthing towards the payment of an Army before the Commons by their Legislative power had decreed a Warre the proportion of Men and Horses to be raised and of money to be leavied so that though we grant the King and Lords as Heretoches c. to have had an executive power as General Colonels Captains c. yet the Commons ever had power to decree Peace and Warre and the supreme power over these their Ministers 3. The interest of the Commons in the supreme legislative power hath been evidenced already out of the Coronation-Oath to which may be added that of Fortescâ—e Soveraign Power of Parliament part 1. p. 38. quoted by Mr. Prinne The King who is head of that politique body cannot change the Lawes of that body neither can withdraw from the said people their proper substance without their wills and consents for such a King â—f a Kingdom politique is made and ordained for the defense of his Subjects Lawes and of their Bodies and Goods whereunto he receiveth power of his people so that he cannot govern his people by any other Law Rights of the Kingdom pag. 89. The Authour of the Rights of the Kingdom tells us that if we look to the old Writ of Summonâ— we shall find the Commons called ad consentiendum faciendum and the old Writ added quod quilibet omnes de Comitatu facerent vel faceret si personaliter interessent as it is in the modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writ expresses thus Ita ut dicta negotia infecta non remaneant pro defectu potestatis but the Lords are called de quibusdam arduis tractaturi consilium impensuri c. only as Councellers not as Law-makers for the very same words are in the Writs for Judges and others coming to Parliament although they do not vote in making Laws Soveraign power of Parliament p. 47. 51. of the first part Ibidem part 1. pag. 43. And if it should be replyed that Statutes are said to be enacted by the King and Lords as well as the Commons I shall answer that the Kings consent is required ex debito by vertue of his Office to every Law the Commons make and he cannot alter one tittle of it nor hath he any negative voice in matters of common Justice and that Laws might have been made if all the Lords had been absent as Mr. Prinne telleth us from Vowel whereas the Commons were neither bound to give consent to what the King and Lords proposed nor could the King and Lords act any thing without their consent 4. The priviledge of the last appeale was de Jure the right of the Commons Mr. Prinne calls the Knights Soveraign power of Parliament part 2. p. 24 Citizens and Burgesses of the Parliament the supreme Councellers and Judges of all others to whom all other Courts Councellers Officers Judges are responsible for their actions judgements advice Appeales arise either from obscurity of Lawes and who so fit to interpret Lawes as they that make them or from new cases not yet by Law determined and then the Legislative power must only interpose or from the corruption of officers and errors in judgement and then none are so fit to judge as they who have the Fountain-Power and derive it to all other Officers Thus having shewed that the supreme power hath appertained of râ—ght to the Representatives of the people it will follow that the Common-wealth of England is not a thing of yesterdayes erection but the Common-wealth which hath heretofore been doth now more clearly appear we have the proper fundamentalls of our most ancient Government still standing the alteration or abolishing of some Offices and names of Magistrates Commutatis Magistratuum nominibus atque officiis non statim alia Respublica est dum vissumma imperii primáque potestas illa ut ita dicam mens qua corpus omne movet atque continet una maneat atque eadem Grotius Epist Dedic ante libellum de Antique Reipub Batavicae Nec essentiam Reip Romanae concidisse quis dixerit cum exactis Regibus Majestas ad Optimates transiret Jacobus Lampadius Tract de Repub. Romano-German par 1. S. 60. Plea c. pag. 27.28 Plea c. pag. 29. doth not make a new kind of Government as long as the supreme primary power and the soule as I may call it which moves and quickens the whole politique body remains one and the same Let no one say saith a learned politique Councellor of the Duke of Brunswick's that the essence of the Roman Common-wealth perished when the Kings being driven out the Majesty passed to the Optimates much lesse is a new form of Government erected where the Majesty remains in the same Subjects that ever it did The Kings power being but executive the Lords judicial both but fiduciary and upon trust the Common-wealth laying them both aside for breach of trust can no more be said to have changed its Government and erected a new one then a Master of a Family that turns away a wasteful Steward and some other unfaithful Servants and fulls thriftily to deconomize himself can be said to change the form and nature of his Famiâ—y-Government From what hath been said it appeares 1. That the House of Commons had a power to lay aside the King and House of Lords in case of breach of trust 2. That their power by taking of them away is not lost that house being as a soule to the body without whom the King and House of Lords were a liveless trunck and could do nothing 3. That the power which at present they enjoy is that wherewith they were invested by the people
assertion I have shewed before Kings of politique kingdoms as England was in Fortescue's Judgement cannot change the Laws 2 Chronicles 21.10 Soveraign power of Parliaments Part. page 37. but the people are to be ruled by Laws only of their own making If the Representatives of the people have by the Law of nature a power over their Magistates and have exercised in it almost all Nations and the legislative power in England rests in them they had a power sufficient to take away the King and House of Lords and the powers that are taken away by their lawfull superiors are noe Power nor doth any tye lie upon their quondam Subjects to obey them What they adde ex abundanti Eccles 5.1 2 3. Plea c. page 41. Rom. 13.7 to prove the power of King and Lords still to remain is from such abundance as their sacrifice is whose voice is known by a multitude of words indeed meere Battology They say 1. The sanction of that Government from God is not disanulled they busie themselves to find out a way how it may be said to be dissolved I shall tell them Obedientia limitari semper debet secundùm limites potestatis quam habet superior praecipiens Medulla Theol. lib. 2. cap. 17. Thes 54. Plea c. page 42. God commanding obedience to powers commands to give every one their due and learned Ames will tell them that obedience ought alwayes to be limited according to the limits of the power of the superior commanding whence he concludes that the bond of obedience to an inferiour power ceases when the superior power commands it not to be obeyed We may safely conclude then that the Sanction of obedience to King and Lords is disanulled by the taking away of their Offices by the Representatives of the People of England their lawful Superiours 2. They would perswade us that the original constitution of the people in King Lords and Commons coordinate is not made void But the people never constituted such a Lordly King and Kingly Lords as they dream of they never gave them a joint power with themselves Non-scribers are pittifully mistaken in saying that the people chose their Delegates to consult and concurrently act with the King in Parliament They were chosen ad faciendum as the writ of Summons speakes to make Lawes for Kings and Lords as well as others not to be only Councellors or concurrent actors with them For their Reasons which they say they would produce to prove that it is unlawful for a people to depose their supreme Magistrate they would be very impertinent at the present for the supreme Magistrate is not deposed as long as the House of Commons stands and I doubt unconclusive unlesse they fully answer what Mr. Rutherford and Mr. Prinne two of their own friends have said in asserting the peoples power in that particular 3. Lawes say they are not repealed that give the sway of Government to certain persons and their issue To which I answer that such Lawes Plea c. page 43. if such there were are at lestwise virtually repealed in the Acts for taking away the Kingly Office and House of Lords and such repeales are lawful the whole legislative power being in the Representatives of the people who as an House are above all our common Law and positive Statutes and may change alter and abrogate them as they see most rationally convenient for the publick utility of the people These things considered engaging will appear nothing contrary to the Scriptures they quote page 37. The Senate was above Caesar and our Representatives of greater power then the Roman Senate the Parliament and people are the highest power No King is dishonoured by a Tyrants deposition no Ordinance of God is violated since God never ordained Tyranny in Exercise more then in Title Non-scribers are the men given to change who joyned with the Parliament in Armes against the King ere a while and one of the highest Acts of Soveraignty is the voting and making Warre and now are ready to joyn with his hopeless brood against the Parliament Plea c. page 44. In Judaeos Mahumeristas sub Christianism◠latitantes exerceri solet Grotius Antiqu Reip. Bat. c. 6. Paul Servita History of the Inquisition page 12. Their second Argument to prove that they are preingaged is grounded upon their Oathes Protestations Covenants Of which they affirm 1. Their contrariety to the Engagement 2. Their unremitted obligation In the entry to the answer of this Argument I cannot but observe that Non-scribers make the same use of the Oaths of Allegiance and Supremacy Protestation and Covenant which the Spaniards make of the Inquisition-Office which being at the first erected for the purging out of Jews and Moores professed enemies to Christianity is now used for the keeping out of all power of Christianity from coming amongst them so those Oaths and Obligations which were at first imposed to secure us against the enemies of our State and to discover Priests Jesuites and Cavaliers are now urged in the favour of a party who hath interwoven their interest so with that of the Romanists and Malignant Royalists that should they be observed with Non-scribers interpretation our Religion and Liberties are likely utterly to be subverted at lest-wise we should be put into as dangerous contests for them as we have through Gods assistance waded through in our late commotions Should we grant them that those former Engagements are opposite to the Engagement which well may be denied in the proof of which negative some of late have worthily travelled yet it will not thence follow that the Engagement is unlawful if it may be made appear that the obligation of them is ceased Non-scribers confess Plea c. page 52. that an Oath may be rendred void 1. By the revocation of a Superior having lawful power in the matter of the Oath The lawfulness of the superiority of the Peoples Representatives over the King c. hath been proved and if they had power over the Powers to whom the Oath is made so that they might lawfully divest them of their power they had power over allegiance the matter of the Oath Neither is this power of theirs over the matter of the Oaths weakened by any thing that Non-scribers say For 1. Notwithstanding the Oath of Supremacy acknowledges the King to be supreme Governour yet the Parliament and Kingdom are the supreme power paramount to him saith Mr. Prinne He was the supreme executioner of publick justice had a supreme executive power but not a supreme legislative power Soveraign Power of Parliaments part 1. pag◠104.105 that still was retained by the Representatives of the people To this we may adde what Mr. Prinne saith that the supremacy given to the King relates to the Popes and forraign Princes Authority formerly usurped not to Parliaments and their jurisdiction with whom Mr. Rutherford well agrees who scaning how the King is called supreme saith he is
encouragement of him to the work had built the Temple it would have been a building which God would have disavowed for God would have the ordering of all circumstances in that to come from himself he would have no house till he had commanded it himself So when Israel would have had their Magistracy changed they should have consulted with God first and when your 10. Tribes turned away from the House of David they should have asked Councel of God Because they did not therefore God saith they set up Kings but not by him they asked not his advice but tumultuously rusht into these changes wilfully and obstinately crying give us a King and Princes But to make this stretch to all Nations is absurd since other Nations have not God for their Law-giver so particularly nor can enjoy his immediate answers as Israel might have done but are to be guided by the Law of Nature and the Rules of right reason Thus have I proved that it was lawful for the Israelites to change their established Government for a King and consequently it may be lawful for a people upon good grounds to change their Kingly Government for any other Arist Polit. lib. 1. Amesi de casibus conscien lib. 5. cap. 25. Lex Rex q. 19. p. 158. 1 Pet. 2.13 Monarchia si justa est Regnum si injusta Tyrannis est Deinde ex Tyrannidis destructione nascitur Aristocratia etc. Tandem in obligarchiam definit et Vbiverò iniquitas injustitia eorum qui praesunt per multitudinem irâ percitam è medio tollitur mutatur oligarchia in Democratiam etc. sic sunt tria Magistratuum paria in quorum singulis qui prior legitimus qui posterior illegitimus rectè censetur Musculus loc com page 622. unless they will say that only Kingly Government hath a priviledge to be unchangeable which is an absurdity that Court Parasites would hardly own I may adde reason to prove this and I argue 1. From the definition of a politick body which is this Apolitick body is a society of men according to nature having in it self an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or sufficiency for preservation of it self constituted for being and well-being Or shorter thus A society sufficient in it self to all things conducible to well-being or commodious life Now the form of Magistracy may oft-times prove the greatest hinderance to the happiness and well-being of the publick body and it cannot be a society having a sufficiency for all things conducible to its own civil happiness had it not a power to remove these pressures 2. From the limitation that is upon the power of the Magistrate The Magistrates power is not absolute but limited 1. By the will of God 2. By the will of the People contained in those Lawes and conditions in which the power of rule is founded Now the politick body hath a Nomothetick faculty and so is not properly under a Law but may change and abrogate those Lawes which are hurtful and pernicious and consequently may abrogate the forms of Magistracy which are pernicious as well as the Lawes by which they only stand and in which their power is placed 3. Forms of Magistracy are called the Creatures of men by the Apostle though Magistracy in genere be the Ordinance of God yet in specie it is the Creature of man and consequently may be destroyed by them that made it I shall shut up the proof of this with the words of a man famous in his Generation Monarchy if just is a Kingdom if unjust a Tyranny out of the destruction of Tyranny ariseth Aristocracy in which the Reines are committed to the most just and prudent among the Nobles this ends in an Oligarchy in which a few unwise and unjust great ones get power The iniquity and injustice of whom being taken away by the angry multitude the Oligarchy is turned into a Democracy in which all things are ordered by the people according to their Countrey Customs and certain Lawes the change of this is into an Ochlocracy in which the multitude take licence to do what they list So there are 3 paires of Magistrates in every one of which the first is legitimate the second illegitimate Kingly Aristocratical Democratical Governments are lawful Tyranny Oligarchy Ochlecracy unlawful You may plainly see he approves of the change of corrupted Governments Let this be the first step to prove that the meer dispossession of a former Government cannot make the succeeding Government unlawful to be obeyed or engaged to Now let us go a little more closely along with Non-scribers Plea c. page 20. The Question that is most material is not say they whether a form of Government may be dispossest but whether it be lawfully done by them for if they have unlawfully put out and still keep out the said lawful Government then is their power unjustly gotten and held I shall gratifie them so farre as to grant that it is not alwayes expedient for a people to change their forms of Magistracy quod non expedit quatenus non expedit non licet Let us see then how they prove it unlawfully done Plea c. page 20. Vel de persona vel de authoritate docentis inquirentes cum debeat cum primis inquiri judicari de doctrina Comment in Johannem cap. 1. In reference to this enquiry say they that which will be considerable is not their goodness or expediency of the fact but the warrant and Authority for it in them that did it and they that travel about the goodness and conveniency of the things but lead them out of the way which assertion of theirs is an evidence of most putid hypocrisie Musculus notes it to be the practice of Pseudo-Bishops to enquire concerning the person and Authority of the Teacher before they enquire the truth or falshood of their Doctrine So these that keep such a coyle about titular righteousness despise real righteousness they that teach others to keep their Law through breaking of the Law dishonour God God who is most eminently and exemplarily just who ruleth in the Kingdom of men and giveth it to whomsoever he will is pleased to give a reason of the dispossession of Powers drawn principally from their demerits who govern unrighteously Dan. 4.17 Isaiah 40.20.21 The Prophet Isaih publishing his Edict for the transferring of the Kingdom from the Babylonians to the Medes and Persians expresseth it thus Thou shalt not be joyned with thy Fathers in burial because thou hast destroyed thy Land and slain thy people the seed of evil doers shall never be renouned prepare slaughter for his Children for the iniquity of their Fathers Jer. 22.17 c. that they do not rise nor possess the Land nor fill the face of the world with Cities And the Prophet Jeremiah denouncing the dispossession of the Kingly line of Judah saith Thine eyes and thy heart are not but for thy covertousness and for to shed innocent
our ancient Chronologers for immediately before the passage they quote he acknowledges that before Richards Coronation most writers call him not a King and then he holds that Sycophantical glosse which Non-scribers make use of A Lawyer and that a friend of their own tells us from Walfingham a farre more authentique Historian then the Merchant-Taylor that in the Coronation of Richard the 2d when the King had taken his Oath Archiepiscopus praecedente eum c. the Arch Bishop Henry Percy the Marshal of England going before him turned himself to all the parts of the Church and acquainted the people with the Kings Oath asking them whether they would obey such a Prince and it was answered by all the people with a loud voice that they would which custom saith he hath bin constantly before and since observed And another of his profession saith Soveraign power of Parliaments part 1. p. 75. That the King ought to take his Oath before he should require his Subjects homage when any Subjects have sworn homage before the King had done his homage sworn fealty to the State Law it hath been observed by Historians as some kind of Comet or Prodigy in State-politiques so that notwithstanding Rights of the Kingdom p. 32 that for peace sake the next of the blood hath usually succeeded yet he could not require homage before he had first sworn to the Lords the Commons consâ—quently hath his Kingly bâ—ing from that stipulation He cannot then be coordinate with them whose swearing obedience to the Lawes they shall chuse gives him his Kingly power and dignity 3. Lex Rex quest 21. p. 177. 178. Those who make a King and have power to unmake him in point of misgovernment must be above the King in point of Government But the Parliament makes Kâ—ngs and Kings make not Parliaments the Kings power is fiduciary and put in his hands upon trust and must be ministerial and borrowed from those who put him in trust his power must then be lesse When the King hath received power from them they have the whole power they had before that is to make Lawes and resigned no power to the King but to execute Lawes and his convening them is an act of royal duty c. Lex Rex quest 24. p. 210. all this is Mr. Rutherford's and therefore should take more with Non-scribers And again the Parliament is coordinate with the King ordinarily but the coordination on the King's part is by derivation on the Parliaments part originaliter and fontaliter In ordinary there is a coordination but if the King turn tyrant the Parliament is to use their fountain power and that of the Law Par in parem non habet potestatem is no better from his pen saith Mr. Rutherford that is from the excommunicate Bishops of Rosse then from Barclay Grotius Arnisaeus Blackwood c. We hold the Parliament that made the King at Hebron to be above their Creature the King See then Reader who are the Patriarchs and Prophets of Non-scribers fast Cavaliers excommunicated Prelates But what say Non-scribers to this Argument Even run themselves into the height of Cavalierisme Appendix p. 35. The Authour of the Engagement vindicated saith the people chuse their Representatives and they set up Kings who are therefore meerly the peoples Creatures depend upon continuation of their pleasures Ejus est instituere cujus est destituere To this they answer This is spoken as if it were undeniably true that Kings with us have been wont to be set up by the Representatives of the people but we have neither seen nor read of any such custome in England we have not any one president of a King created meerly by a Representative Is this their knowledge of Histories to which they send us elsewhere for satisfaction Sir Thomas Smith calls the Parliament the Representative body of all England wherein every Englishman is presumed to be either by himself or by his Proxie And many Kings have been made by this Who made William the first King his Conquest Non-scribers will say was no just title the right successive heir of the Crown Edgar Etheling surviving who made William the 2. and Henry the 1. Kings while their elder Brother Robert was alive What Title had King John by succession as long as Arthur and Anne the Children of his elder Brother George Frey Duke of Brittain lived the latter of which Anne lived in the Reign of Henry the third Son of John The Arch-Bishop Hubert at the Coronation of John spake thus Noverit discretio vestra c. Be it known to your discretion that none hath right or any fore title to succeed another in a Kingdom unless first he be with invocation for grace and guidance of Gods spirit by the body of the Kingdom thereunto chosen Soveraign power of Parliaments part 1. p. 54. Rights of their Kingdoms p. 70. So Mr. Prinne out of Hoveden to which all the Assembly consented scientes quod non sine causa sic defini verat as the Authour of the rights of their Kingdom out of Matthew Paris and Wendover compared with Hoveden and others which Authour tells us that if Bracton and Fleta 2 ancient Judges may be made Judges of our Kings Titles they will tell us that in their times our Kings were elective And one of them lived in Henry the thirds time the other soâ—ewâ—at after Edward the 3. was made King by the same power that his Father was deposed by and what that was Speed Ed. 2. S. 74. Speed will tell you the sentence was pronâ—unced by William Tâ—ussel of all the men in England and of the Parliament Procurator Fractus Temporum part 7. Rich. 2. Henry the 4. was chosen and made King of England by the people for the rightful manhood they found in him as the old Fructus Temporum But to conclude who made Henry the 7. King not succession for by his Father he was a meer stranger to the Royal Line and by his Mother of such a â—prout of the Family of Lancaster as was excluded from succession to the Crown by that Law which made it capable of succeeding to ordinary Inheritances Speed Hen. 7. S. 1. as Speed confesseth By his wife he had it not for he exercised all the Acts of Royal Power before he was married His Conquest Non-scribers will deny to be a Title it must then follow Speed Rich. 3. S. 53. that it was from the Parliament he had his Title unless they will say with Speed he had it by election of the people in the field at Bâ—sworth But I believe Non-scribers will say that Act was more valid which was done by an orderly Parliament then that which was done by the Souldiers in the height and heat of their victory If they have not seen or heard these things they are strangers in English History But it was not the obscurity of these things in our Histories that made
them say thus but to make the King absolute supreme and giver of life and being to Parliaments as is evident from that of theirs we have no ground to think Represeâ—tatives anâ—ecedent to Kings Appendix page 35. Lex Rex quest 21. page 177 Lex Rex quest 6. 19. Námque munus illud quâ vi quâ gratiâ favore imo quo pretio denique et corruptelâ pro temporum hominumque conditione sub specie feudi aliisque diversis praetextibus in peculium tandem conversum est ex temporario haereditarium factum Guicc Descrip Hannoniae p. 440. Nunc nullus in honorum nominibus est modus neque praeter inanem titulum ullus Nominum usus Buchanan Rerum Scoticarum lib. 6. Verstegan cap. 10. Rights of the Kingdom p. 9â— which is the rotten ground of Ferke the Authour of Oâ—soriaâ—um c. as Mr. Rutherford will tell them Agâ—in they tell us that the Peoples constitution of their Gâ—vernment either collectively or by Proxies by way of election and consent is no valid argument of any superintendent power in the people to make or unmake Kings To this I say that the people do not constitute their Governours by a bare election and consent but they are their efficient cause and give them their civil power and agency Kings and other Magistrates are the effects of the people and therefore inferiour to them This nail is driven home to the head by the fore-named learned Scotchman they know the common principle Quod efficit tale est magis tale and for their comparisons of Servants and Pastors I must refer them to the place quoted in the Margin where they may be satisfied 2. The Lordâ— were not coordinate with the Representatives of the people I shall not stay for I shall soon dismiss them here to relate the first rising of the like dignities in other places That learned Historian Guicciardin tells us that after Lotharius the Emperor had divided the Empire into three parts among his three Sons they out of flâ—ath began to give up divers Lands to their Palatines who before were as Judges sent to govern them and from hence came up so many Earles as now we see what by force what by favour what by price and corruption under divers pretexts the Offiâ—e of Palatines was turned into a propriety and of temporary became hereditary Nâ—t shall I insist upon honest and learned Geâ—rge Buchanan's verdict concerning this kind of men who informs us that Malcolme the 2. was the first who brought theâ— into Scotland rather for vain ambition then any use and afterwards complains There is now no measure in new names of honour and no use of their names besides the empty Title To come to our own Lords The Dukes which were among our Saxon Ancestors I cannot conceive to be any other then the Heretochii that are mentioned in the Confessors Lawes who were the Captains of the Kingdoms Militia chosen by the people in their Folcmotes for Hertzog is the tearm by which the Dutch of whomâ—thâ— Saxons were a branch express a Duke to this day a word derived from Here an Army and togeâ— to lead and fitly expressing the Latine Dux the fountain of our word Duke Earle a name of honour as Grave of Age was wont to denote amongst them the principal Judge of a shire which was also elective The Norman brought in the Title Baron and the Norman Barons were nothing else but the great Free-holders of the Nation All the Peers are said by Lawyers to sit in the house as Barons in which right the Bishops also sat as being Barons by tenure as also other Barons were before any was so by Pattent which manner of Creation viz. by Pattent is not much elder then Edward the 3. and indeed was one of the prime plots of our Kings whereby they strengthned their Tyranny they saw the great Free-holders that were Barons by tenure were vigorous Patrons of the peoples Liberties they therefore gratified many of their own Creatures with Pattents for that Honour that they might gratifie them with their mercinary Votes Now the most if not all of the Lords were no other then the Kings Pattentees whereof some had bought their Title others were called to it to draw them off the service of the Common-wealth as Strafford Digby c. Others raised out of the Kings private affection so that they were no other then bubbles blowen up by the breath of exorbitant prerogative These things premised I shall demonstrate that the Lords were not coordinate with the Commons by 3. mediums I. The power which they had was but Judicial and that over the King onely Soveraign power of Parliaments part 1. p. 5. in the Margin Rex non habet superiorem in terris praeter Deum Legem Curiam Comitum Baronum qui ideo dicuntur Comites quia sunt socii Regis saith Bracton quoted by Mr. Prinâ—e and their Office is that debent ei fraenum ponere Nay the last King in a Declaration of his as I well remember I have read though now I have it not at hand saith that the Lords were as bankes between him and the Commons to restrain the excesses of prerogative Legislative power at the first they had none should we grant that since their good services for the people they had a share of legislative power allowed them yet this would not prove them coordinate with the Commons For the modi of Parliaments saith an able Lawyer will not only tell us that the Commons have better and stronger Votes then the Lords Rights of the Kingdom p. 88.89 90. Idem Ibiâ—â—â— p. 82. but that there may be a Parliament without the Lords which he proves and defends against Objections Which â—uthour tells us that the Lords lost this Judicial power by accepting Pattents from the King and so becoming incorporate with him his personal Commissioners who was not able to constitute Judges when himself was a party Nay should I grant that Power to the House of Lords Non secus ac Patronus cum clientis adversario de quota litis pactus si Clientis causam prodidisset si minimè noceret non potest ita sanè ista Magnatum in damnum necémque populi inita conspiratio quidquaÌ„ ejus juri detrahere Verum illi in poenam legis quae in praevaricatores lata est incident his ac si res omnino integra esset Patronum alium eligere jus suum denuâ— persequi Lex permittit Vindiciae contra Tyrannos Quaest 3. pag. 98. Rights of the Kingdom p. 87.88 Valer. Max. li. 2. cap. 2. Antiquitus Tribuni Plebis ante valvas positis subselliis decreta patrum perpendebant si quae ex iis improbâssent rata esse non sinebant Janus Gulielmus de Magist Pop. Rom. ca. 14. So Lipsius de Magist Pop. Rom. cap. 15. that they were by office the Patrons of the people against the Inundations of Tyrannie
irregular is not presently unlawfull Matth. 12.3 4. Davids eating the shew-bread was irregular but not unlawfull Man's Laws must all stoop in case of necessity to the divine Law of Nature and to the safety of the people Quoniam inquit Consul dum juris ordinem sequitur id agit ut câ—â— omnibus Legibus Romanum imperium corruat egomet privatus voluntati vestrae me Ducem offero the Supreme Law When Gracchus endeavoured to subvert the Romane State the Consul Scaevola refused to oppose him by force Scipio Nasica said because the Consul while he followes the ordinary course of Law suffers the Romane Empire with all its Laws to be in danger of perishing I a private man will be your Captain accordingly though a private man he repulsed Graechus with his complices So Scipio Africanus when the publique treasury should have been opened for the necessary use of the Common-wealth and the Quaestors because they did think it forbidden by Law refused it Valer. Max. li. 3. cap. 2. Valer. Max. li. 3. cap. 7. Scipio Isay being a private man took the keyes and opened the Treasury and made the Laws stoop to the publique benefit Nor will the irregularity of hindring Magistrates from doing unlawfull Acts be lesse defensible 1 Sam. 19.40.45 The peoples act in rescuing Jonathan from Saul will justifie it They had professed their subjection to Saul yet they hindred him from oppressing his son who had wrought deliverance in Israel The Army then might well and lawfully though extraordinarily and therefore irregularly in reference to ordinary rules hinder the Members of the House from Voting such a Peace as would have opprest not only one but all our Jonathans who had wrought deliverance for our Israel 3ly Non-scribers say that the Army affirmed the Judgement of the House of Commons incompetent and inconclusive in their constitution before they were purged Which may be thus answered That the Army affirmed the Parliament morally incompetent and inconclusive at that time because so many had shâ—fflâ—d themselves so far into the Kings interest as to prefer it before the Publique interest not Politically incompetent and inconclusive Soveraigne Power of Parliaments part 2. page 40. There is no reason why Non-scribers should be angry that the Army calls the House of Commons the Parliament it is such language as Mr. Prinne teaches The Parliament saith he is elective consisting for the most part of the principall men in every County City Burrough c. And again The Parliament consisting of the a blest men of all Counties Soveraigne power of Parliaments part 1. page 39. c. And in another place whatsoever the people of Rome might do either Centuriatis comitiis or Tribunitiis is and may be done by the Authority of Parliament The Lords were not elected out of Cities Counties Burroughs Cannot resemble the Romane Comitia therfore in Mr. Prinnes Judgement not so fitly to be called the Parliament These things considered Non subscribers had small reason to parallel the deposition of the King and Lords Plea c. page 21 23. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Med. 28. with the Act of Corah Dathan and Abiram as they do borrowing this similitude from the late Tyrant and fulfilling the prediction of the Publisher of that fine piece of Hypocrisie Vota dabunt quae Bella negârunt For 1. Moses was innocent in the administration of his Government the King and Lords betrayed the trust reposed in them In seditione enim duas omninâ— partes esse necesse est quae cum de contradictoriis plerunque certenâ— unius justam alterius injustam causaâ— esse consequitur Justa inquit Bartolas quae tyrannicum regimen deponere volet injuâ—ta quae justum Licita quae ad bonum publiâ—um illicita quae ad privatum tendit Itaque ait Thomas quia regnum TyrannicuÌ„ quod non ordinatur ad bonum publicum sed privatum regentis non est justuÌ„ perturbatio istius Regni non habet rationem seditionis Vindiciae contra Tyrannos Quaest 3. pag. 178 179. Appendix to Soveraign Power of Parliaments page 187. 2. The men that acted then were not the Supreme Magistrate nor so much as coordinate with Moses The house of Commons the faithful part of them I mean which are proved before to be legally a House are the Supreme Magistrates 3. The cause was ambition in Corah and the rest in the Parliament the safety of the people 4. The Action of Corah and his complices was sedition but in opposing a Tyrant the Tyrant and his complices are the seditious persons For in sedition that I may use Junius Brutus it is necessary that there be alwayes two parties who when they strive about contradictory things it must follow that the ones cause is just the others unjust That is just saith Bartolus that would depose a tyrannicall Government that is unjust which would depose a just Government That is lawfull which tends to the Publique good that unlawful which tends to a private good only Therefore saith Thomas because a tyrannical rule which is not ordered to the publick good but to the private benefit of the Ruler is not just the overthrowing of such a rule hath not the reason of sedition unto which Mr. Prinne adds out of Aquinas That it is the Tyrant rather that is seditious As for that place out of the Epistle of Jude wherein the error of some Christians is paralleld with Corah's sedition it makes nothing for Non-scribers For 1. These Christians were meer private men and the meaner sort of private men 2. The Power they would have deposed was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and Aristotle understands by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Supreme Power in a Common-wealth they must therefore venter another strain of Criticisme about that word as well as they do about 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which when they understand we shall tell them that the Laws of England and the People in their Representatives the Masters and Makers of those Laws have the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. The sin by the Apostle there reproved is the putting down of all Magistracie in generall not the deposing of faulty Magistrates or changing inconvenient forms for those that are better So that all Non scribers big words are but bruta fulmina Mr. Perkins on the Epistle of Jude ver 8. yet the People of England might do well to take notice in what a miserable case their Ecclesiastick and Civill Liberties were if such men's as Non-scribers domination were not strictly limited and narrowly confined But what will Non-scriber say if I prove that the former constitution of the Government of the Nation was not deposed or dispossessed by the present power The constitution of this Nation was a multiformed Government say Non-scribers and I adde that if it was a mixture of just species it was of Royalty Optimacy and Polity properly so called The Powers that were dispossest were Tyranny of a Scarlet
War quite to shake off the Moabitish yoak Would such as Non-scibers cease to abuse the Parliaments lenity and the Peoples credulity we should lesse fear civil commotions and for forraign enemies blessed be God he hath delivered us and we hope will yet deliver Lastly Non-scribers say the people are wronged Plea c. P. 33. because the force Bond and security of all the Laws are changed by this change To this I say That the Laws are the peoples Laws they chuse them they make them their representatives are the supreme Magistrates who have the supreme Authority to make and confirm a Law and as long as the people want not these the security of the Laws can never fail but their security is so much the more provided for by how much any power that pretends interest in the making or confirming of a Law besides the Representers of the people is curbed So that the Peoples Laws are more secure now being out of danger of being hindred in their making by a royall advisera or in their execution by protections against Law flowing from an unlimited prerogative And whereas Non-scribers say that the Parliament hath violated the Legal and most foundational property of their Superiors I would have them know that the people of England represented in Parliament have no superiors under God which is a truth of such force as drew from King James himself a confession that he was no other then the great Servant of the Common-wealth Plea c. p. 34. The punishment against such as engage not which Non scribers urge to prove that the security of Law is loosed is no other then the Rational practice of all our Law-Courts viz To deny them the benefit of the Law who deny the jurisdiction of the Court And they deny the jurisdiction of all Courts which is but derivative who deny the Supreme power of the Com-monwealth of England which is in respect of other Courts Original and fountain power Plea c. pag. 35 36. I have thus done with their first Argument which militated 't is Non-scibers paedantique word against the Engagement abstractly considered I shall come now to a view of their second ground which concerns them they say as English men As â—â—eâ— say they are pre-ingaged and in regard of precedent obligations it would be perfidie another of their Elegancies to engage in this Their engagements are two-fold as Subjects as sworn under that relation Their first argument in pursuance of this second reason is this If the tye of Subjects to Magistrates is upon us in relation to an Authority and Government which cannot be said to be a Common-wealth without a King and house of Lords then we cannot engage but such a tie is upon us Ergo. I deny the Minor there is no such tie upon them or any English man The power to which they say they were obliged was not a power consisting of three coordinate estates as they suppose but of a Polity or Common-wealth the University of the people being represented by their chosen delegates in whom all Majesty and supreme power of the Commen-wealth resided the King an honorary Servant of the Common-wealth to see its Laws put in execution and the Lords as Judges appointed to judge between the Common-wealth and King When the Commons say that the fundamental Government consists in the King Plea page 37. Lords and Commons fundamental is to be taken in its largest sence and we must distinguish between what is properly what is ascititiously fundamental That a people inhabiting together in one Land be a Common-wealth having all power to themselves for self-preservation and are to be governed by whom themselves shall chuse is natural and properly fundamental that they set a King to execute their Edicts and Lords to judge him in case of miscarriage is voluntary and improperly fundamental If therefore the Representatives of the people by the peoples fountain-power which they neither can or do give up to any King or Lord do take away the King and Lords to whom the people cannot be given up irrevocably the King and Lords so taken away are no more a power have no more Authority Let us now hearken how they prove that this authority of the King and Lords remaines for that the House of Commons is still a legal representative of the people hath been proved already and I shall avoid repetitions as far as following Non-scribers in their wild goose chace will give me leave They say Plea c. p. 38. The only wayes of dissolving Government appliable to the occasion are either that it must be done by some Act of those in power to do it or by forcible and violent ejection That what was done was done by unjust violence I deny that it was done by them who had lawfull power to do it I affirm Nonscribers strive to prove that they which did it for they confesse acts of repeal to have been made were not qualified with power to do it by two Medium's 1. Because they never had such power committed to them nor did any of their capaci y ever exercise such a power To this I confidently reply that the Representatives of a Nation In all Nations that have had the happinesse to enjoy such have a power to depose their Tyrannicall Magistrates by what name or title soever they be called Proof of which may be seen at large in Junius Brutus De illarum sanctionum genere quae mutationibus temporum non sunt obnoxiae sed in primo generis humani natu in mentes hominum incisae sunt mutuo propé omnium gentium consensu comprobatae unà cum rerum natura irrefragabiles sempiternae perennent ipsaeque nullius imperiis obnoxia omnibus dominentur imperent Bucan Rerum Scotic lib. 20. and the Author of the Treatise De jure Magistratus in subditos and that by a Law which is of kind to those sanctions which are not obnoxious to the changes of times but were at the beginning of mankinde ingraven upon the minds of men and approved by the mutual consent of all Nations and together with nature it self are irrefragable and eternall ruling over all subject to none I borrow the expression of some honourable Scotch Lords Ambassadour to Queen Elizabeth in justification of their ejection of Mary Grandmother to our late Tyrant And for their ignorance of any such principle in Scripture it argues their carelesse search of it There they might find Israel using their native liberty in deposing Samuel and setting up a King though Samuel was innocent and God himself was interessed As also the defection of Libnah one of the Priests Cities from under the hand of Jeboram because he had forsaken the Lord God of his Fathers and if one City for themselves may reject a King much more the representatives of a whole Nation 2. They say the legislative power was seated in three estates therefore the Abrogative The falshood of which