without detainment of their freedome by the exercise of an illegall usurped and unconsented power whereunto Kings especially in hereditary Monarchies are very prone which cannot be suspected by a Parliament which is representatively the Publike intrusted for it which is like to partake and share with the Publick being but so many private men put into authority protempore by common consent for common good Nor is the Parliament hereby guilty of an Arbitrary Government or is it destructive to the Petition of Right when as in providing for publick weale it observes not the letter of the law first because as aforesaid that law was not made betwéene Parliament and people but by the people in Parliament betwéene the King and them as appears by the whole tenâ—ur of it both in the complaining and praying parts which wholly relate to the King Secondly because of the common consent that in the representative Body the Parliament is given thereunto wherein England in her Polity imitates Nature in her Instincts who is wont to violate particular principles for publique preservation as when light things descend and heavy ascend to prevent a vacuum and thirdly because of the equitable power which is inherent in a Parliament and for publique good is to be acted above and against any particular Statute or all of them and fourthly because the end of making that Law to wit the publique preservation is sulfild in the breaking of it which is lawfull in a Parliament that is chosen by the whole for the whole and are themselves also of the body though not in a king for therein the Law saith Better a mischeife then an inconuenience But it may be objected though it be not Arbitrary for the Parliament to goe against written law yet is it not so when they go against the Kings consent which the law even the fundamentall law supposeth in Parliamentary proceedings This hath beene answered that the King is juridically and according to the intention of the law in his Courts so that what the Parliament consults for the publick good That by oath and the duty of his office and nature of this polity he is to consent unto and in case he do deny it yet in the construction of the fundamentall law and constitution of this Kingdom he is conceived to grant it supprosing the head not to be so unnaturall to the body that hath chosen it for good and not for evill But it will be answered where is the Kings Negative Voice if the Parliament may proceed without his consent I answer That there is no known nor written law that gives him any and things of that nature are willingly beleeved till they be abused or with too much violence claimed That his Majesty hath fundamentally a right of consent to the enacting of laws is true which as aforesaid is part of that honourable trust constituted in him And that this royall ascent is an act of honoer and not of absolute and negative power orprerogative appeares by these following reasons First by his oath at the Coronation mentioned in one of the Parliaments Declarations where he doth or should sweare to confirme and grant all such good lawes as his people shall choose to be observed not hath chosen for first The word concedis in that oath were then unnecessary the lawes formerly enacted being allready granted by foregoing Kings and so they need no more concession or confirmation else we must run upon this shelfe that all our laws die with the old King and receive their being a new by the new Kings consent Secondly Hereby the first and second clause in that interrogatory viz. Concedis iustas leges permittas protâ—gendas are confounded and doe but idem repetere Thirdly Quas vulgus elegerit implies onely the act of the people in a disjunctive sence from the act or consent of the King but laws allready made have more then quas vulgus elegerit they have also the royall consent too so that that phrase cannot meane them wherein the act or consent of the King is allready involved Secondly by the practise of requiring the royall ascent even unto those very acts of subsidies which are granted to himselfe and for his owne use which it is supposed he will accept of and yet Honoris gratia is his roiall ascent craved and contributed thereunto Thirdly by the Kings not sitting in Parliament to debate and consult lawes nor are they at all offered him by the Parliament to consider of but to consent to which yet are transmitted from one house to another as well to consult as consent to shewing thereby he hath no part in the consultory part of them for that it belongs onely to the people in Parliament to discerne and consult their own good but he comes onely at the time of enacting bringing his Royall Authority with him as it were to set the seale thereof to the Indenture allready prepared by the people for the King is head of the Parliament in regard of his authority not in regard of his reason or judgement as if it were to be opposed to the reason or judgement of both houses which is the reason both of King and Kingdome and therefore do they as consult so also interpret lawes without him supposing him to be a person replenished with honour and royall authority not skilled in lawes nor to receive information either of law or councell in Parliamentary affaires from any saving from that supreame court and highest councell of the King and Kingdome which admits no counterpoize being intrusted both as the wisest Councell and justest judicature Fourthly either the choise of the people in Parliament is to be the ground and rule of the Kings assent or nothing but his pleasure and so all Bills though never so necessary for publique good and preservation and after never so much paines and consultation of both houses may be reiected and so they made meere cyphers and we brought to that passe as either to have no lawes or such onely as come immediately from the King who oft is a man of pleasure and little séene in publicke affaires to be able to judge and so the Kingdomes great councell must be subordinated either to his meere will and then what difference between a free Monarchy and an absolvte saving that the one rules without Councell and the other against it or at the best but to a cabinet councell consisting commonly of men of private interests but certainly of no publicke trust Ob. But if the King must consent to such laws as the Parliament shall chuse eo nomine they may then propound unreasonable things to hâ—m as to consent to his own deposing or to the lessning his own revenew c. Ans So that the issue is whether it be fitter to trust the wisdome and integrity of our Parliament or the will and pleasure of the King in this case of so great and publicke concernment In a word the King being made the fountaine of justice and
Touching the Fundamentall Lawes Or Politique Constitution of this Kingdome The KINGS Negative Voice and The Power of PARLIAMENTS To which is annexed The priviledge and power of the Parliament touching The MILITIA LONDON Printed for Thomas Vnderhill and are to be sold at the signe of the Bible in Woodstreet M.DC.XLIII TOUCHING FVNDAMENTALL LAVVS AND The KINGS Negative Voice FVndamentall Laws are not or at least néed not be any written agréement like Meare-stones betwéen King and People the King himselfe being a part not party in those Laws and the Common-wealth not being like a Corporation treated by Charter but treating it selfe But the fundamentall Law or Laws is a setling of the laws of nature and common equity by common consent in such a forme of Polity and Government as that they may be administred amongst us with honour and safety For the first of which therefore we are governed by a King and for the second by a Parliament to oversée and take order that that honourable trust that is put into the hands of the King for the dignity of the Kingdome be rightly executed and not abused to the alteration of the Politique Constitution taken up and approved or to the destruction of that for whose preservation it was ordered and intended A principall part of which honour is that royall assent he is to give for the enacting of such good Laws as the people shal choose for they are first to consult their own safety and welfare and then he who is to be intrusted with it is to give an honourable confirmation to it and so to put an Impresse of Majesty and Royall authority upon it Fundamentall Laws then are not things of capitulation between King and people as if they were Forrainers and Strangers one to another nor ought they or any other Laws so to be for then the King should governe for himselfe not for his people but they are things of constitution treating such a relation and giving such an existence and being by an externall polity to King and Subjects as Head and Members which constitution in the very being of it is a Law held forth with more evidence and written in the very heart of the Republique sarre firmlyer then can be by pen and paper and in which sense we owe our Allegiance to the King as Head not onely by power but inâ—uence and so part of the constitution not as a party capitulating for a prerogative against or contrary to it which whosoever seeks to set up or side with doe break their Allegiance and rebell against the State going about to deprive the King of his juridicall and lawfull authority conferred upon him by the constitution of this State under the pretence of investing him with an illegall and unconstitutive power whereupon may follow this grand inconvenience The withdrawment of His peoples Allegiance which as a Body connexed with the Head by the constitution of this Kingdome is owing to him his person in relation to the body as the enlivening and quickning head thereof being sacred and taken notice of by the laws in that capacity and under that notion is made inviolate And if it be conceived that Fundamentall Laws must néeds be only extant in writing this is the next way to bring all to confusion for then by the same rule the King bids the Parliament produce those Laws that fundamentally give them their being priviledges power Which by the way is not like the power of inferiour Courts that are springs of the Parliament dealing betweene party and party but is answerable to their trust this Court being it selfe Fundamentall and Paramount comprehending Law and Equity and being intrusted by the whole for the whole is not therefore to be circumscribed by any other Laws which have their being from it not it from them but onely by that Law which at first gave it its being to wit Salus populi By the same rule I say the Parliament may also intreat the King to produce those Laws that Fundamentally give him his being power and honour Both which must therefore be determined not by laws for they themselves are laws yea the most supreame and fundamentall law giving law to laws themselves but by the received constitution or policy which they themselves are and the end of their constitution is the law or rule of their power to wit An honourable and safe Regiment of the Common-wealth which two whosoever goeth about to divide the one of them from the other breaks the fundamentall constitutive law or laws polity of this kingdome that ordinance of man which we are to submit unto nor can or ought any statute or written law whatsoever which is of later Edition and inferiour Condition being but an off-spring of this root be interpreted or brought in Plea against this primary and radicall constitution without guilt of the highest Treason and destructive enmity to the Publique weale and polity because by the very â—onstitution of this Kingdome all laws or interpretation of laws tending to confusion or dissolution are ipso facto void In this case we may allude and say That the Covenant which was 400. yéers before the Law an after-Act cannot disanull it Ob. It may be objected that this discourse séems to make our Government to be founded in Equity not in Law or upon that common rule of Salus populi which is alike common to all Nations as well as any and so what difference Ans The Fundamentall laws of England are nothing but the Common laws of Equity and Nature reduced into a particular way of policy which policy is the ground of our title to them and interest in them For though it is true that Nature hath invested all Nations in an equall right to the laws of Nature and Equity by a common bounty without respect of persons yet the severall models of externall Government and Policie renders them more or lesse capable of this their common right For though they have an equall right in Nature to all the Laws of Nature and Equity yet having fundamentally subjected themselves by their politique Constitutions unto a Regal servitude by Barbarisme or the like they have thereby much disabled and disvested themselves of that common benefit But on the contrary where the outward constitution or polity of a Republick is purposely framed for the confirming and better conserving this common right of Nature and Equity as in ours there is not onely a common right but also a particular and lawfull power joyned with this right for its maintenance and supportion For whereas other people are without all supreame power either of making laws or raising monies both these bodies of supremacie being in the arbitrary hands onely of the Soveraigne Magistrate amongst many Nations these with us are in the hands of the supreame Government not Governour or Court of Iudicature to wit the King and Parliament here the people like Frée-men give money to the King he doth not take it and offers Laws to be enacted
doth not receive them so Now in such a constituted Kingdome where the very Constitution its selfe is the fundamentall law of its owne preservation as is this mixt Regiment of ours consisting of King and Parliament as Head and Body comprehending Monarchie Aristocracie and Democracie there the fundamentall laws are like fundamentall truths in these two properties First they are comprehended in a very little room to wit honour and safety and secondly they have their influence into to all other inferiour Laws which are to be subjected to them and correspondent with them as lawful children and naturall branches Ob. But in processe of time there are many written Laws which séem at least to contradict this Fundamentall Constitution and are not they binding notwithstanding it Ans The Constitution of this Kingdome which gave it its being and which is the radicall and fundamentall law thereof ought therefore to command in chiefe for that it never yéelds up its authority to those inferiour laws which have their being from it nor ought they which spring from it tend to the destruction of it but on the contrary it is to derive its radicall virtue and influence into all succéeding laws and they like branches are to make the root flourish from whence they spring with exhibiting the lively and structifying virtue thereof according to the nature and seasons of succéeding times things incident in after-ages not being able to be fore-seen and particularly provided for at the beginning saving in the fundamentall law of Salus populi politiquely established nor can any laws growing out of that root bear any other fruit then such as the nature thereof dictates for for a particular branch to ruine the whole foundation by a séeming sense contrary to it or differing from it is very absurd for then how can it be said Thou bearest not the root but the root thée Laws must alwayes relish of and drink in the constitution or polity where they are made and therefore with us the laws wherein the King is nominated and so séems to put an absolute authority into his hands must never so be construed for that were with a breath to blow downe all the building at once but the King is there comprehended and meant under a two-fold notion First as trusted being the Head with that power the Law conferd upon him for a Legall and not an absolute purpose tending to an honourable preservation not an unnaturall dissolution Secondly as meaning him juridically not abstractly or personally for so onely the Law takes notice of the King as a juridicall person for till the Legislative power be absolutely in the King so that laws come down from him to his people and goe not up from them to him they must ever be so interpreted for as they have a juridicall being and beginning to wit in Parliament so must they have a sutable execution and administration to wit by the Courts and legall Ministers under the Kings authority which according to the constitution of this Kingdome he can no more suspend for the good of his people then the Courts can theirs or if he doe to the publique hazard then have the Courts this advantage that for publique preservation they may and must provide upon that principle The King can doe no wrong neither in withholding justice nor protection from his people So that then Salus populi being so principally respected and provided for according to the nature of our constitution and polity so being Lex legum or the rule of all laws branching thence Then if any law doe by variation of times violence of tyrannie or misprision of Interpreters vary there-from it is a bastard and not a son and is by the lawful parents either to be reduced or cast out as gendring unto bondage and ruine of the inheritance by attempting to erect an absolute and arbitrary Government Nor can this equitable exposition of particular Statutes taken from the scope of the politique constitution be denyed without overthrow of just and legal Monarchy which ever tends to publique good and preservation and the setting up of an unjust and illegall tyrannie ruling if not without law yet by abused laws turning them as conquered ordnance upon the people The very Scripture it selfe must borrow from its scope and principles for explanation of particular places else it will be abused as it is through that default unto Heresies Sée we not how falsely Satan quoted true Scripture to Christ when he tempted him onely by urging the letter without the equity or true intention and meaning We are to know and doe things verum verè justum justè else we neither judge with righteous judgement nor obey with just obedience Ob. But is not the Parliament guilty of exercising an arbitrary power if their procéedings be not regulated by written laws but by Salus populi Ans For the Parliament to be bound up by written laws is both destructive and absurd First it is destructive it being the Fundamental Court and Law or the very Salus populi of England and ordained as to make laws and sée them executed so to supply their deficiencie according to the present exigencie of things for publique preservation by the prerogative of Salus populi which is universally in them and but particularly in particular laws and statutes which cannot provide against all future exigents which the law of Parliaments doth and therefore are not they to be limits to this And it would yet be further destructive by â—utting the Parliament short of half its power at once for it being a Court both of Law and Equity as appears by the power of making laws which is nothing but Equity reduced by common consent into Polity when ever it is ciâ—cumseribed by written laws which onely is the property of inferiour Courts it ceaseth to be supreame and divests it selfe of that inherent and uncircumseribed power which Salus populi comprehends Secondly as it is destructive so also it is absurd for the Legislative power which gives laws is not to receive laws saving from the natâ—re and end of its owne constitution which as they give it a being so they endow it with lâ—ws of preservation both of it selfe the whole which it represents I would not herein be mis-understood as if the Parliament when as it onely doth the office of inferiour Courts judging between party party were not limited by written lawes there I grant it is because therein it only deales between meum tuum which particular written lawes can and ought to determin so that its superlative and uncircumseribed power I intend only as relating to the Universe and the affaires thereof wherein it is to walke by its fundamentall principles not by particular precepts or Statutes which are made by the Parliament betwéen King and people not betwéen people and Parliament they are ordayned to be rules of Government to the King agreeing with the liberty and property of the people and rules of Obedience to the people