oathes Is it possible you can innocently destroy your Soveraigne whose life you have sworne to defend with your utmost power Be not abused by that miserable fallacy drawne from the nature of a Covenant The mistake lies here that law hath provided to bring Subjects offending to a tryall but hath not could not question the King and compell him to be responsable for want of a superiour jurisdiction All just proceedings must be per legale judicium parium legem terrae by triall of Peeres and the law of the land But the King hath no Peere and lex terrae doth not in any case disarme the King of the sword of Justice it is not separable from his Crowne Therefore he is exempt from tryall and it cannot be just to punish him unheard uncondemned The conditions of Kings were very miserable if he who sweares to governe the people according to the knowne lawes so that they see what to trust to should himselfe be liable to their arbitrary Justice The Premises are firme for the Major is part of magna charta and the Minor is as evident as that his Subjects are not greater then he which signifies only that those which are under him are not his superiours Bracton you may remember is frequent in the expression Rex non habet parem in regno and he is tantùm sub Deo c. There is besides an antient monument which shewes the manner of holding a Parliament before the Conquest which will afford us no small light in this poynt It is sayed to be delivered to William the Conquerour by discreet men at his command and to have beene approved by him it runs thus Rex est caput principium finis Parliamenti ita non habet parem in suo gradu c. The King is the head the begining and the end of the Parliament and so he hath not any Peere or equall but is himselfe the first degree The 2d is of Archbishops Bishops Abbots and Priors holding by Baroney The 3d is of Proctors of the Clergy The fourth is of Earles Barons and other noble personages The fifth is of Knights of the Shire The sixt degree is of Citizens and Burgesses and so the whole Parliament is compleated by six degrees But we must know that though any of the five degrees besides the King shall be absent if they were duely summoned Parliamentum nihilominus censetur esse plenum the Parliament is full in law The latter part is as manifestly true that Lex terrae doth not in any case disarme the King of the sword of Justice By our constitutions Regia majestas est armis decorata and legibus armata the directive part of Law concernes the King the penall doth not Hee ought to square his actions according to this rule but if they should swerve from it they cannot fall within the cognizance of his Subjects All offences are punishable as committed against Him His Crowne and Dignity and though the Law hath condemned them they are pardonable by His Grace which clearely demonstrates He is above penall Lawes and it is indeed an inseparable priviledge of supreame jurisdictiction let it be placed where it will in one or more persons Naturally supposing men by distance absolved from paternall dominion that is before a positive constitution of Empire when men were equally free it was not unlawfull to require by strong hand satisfaction for wrong but after an established government this liberty was civilly restrained and it is not in our power to right our selves but in a legall way which is by Magistrates and the last appeale lyes to the highest Governour that the processe may not be infinite but we may have some certaine and peaceable decision of all differences To conclude this Section for I shall have occasion to inlarge my proofes in the next in answer to their exceptions we have sworne to beare true allegiance to the King such as have not are neverthelesse strongly obliged by divine Law and this duty doth naturally flow from the right to governe I request all men to examine their consciences how they can excuse themselves from fâ—â—t perjury if they indanger his life and endeavour to destroy him It is expressely high Treason to compasse his death 25. Edw. 3. Though God in his great goodnesse hath restrained their malice from effecting it yet by shooting at him by attempting to kill him they are lost temporally their goods and chattels lands and tenements and lives are forfeited in Law and what is most lamentable their soules are eternally ruined Disloyalty to their King is disobedience to God I need not aggravate the sinne the Apostles eloquence is most powerfull They that resist shall receive to themselves damnation The case is so extreamely plaine I am amazed that the people should be so bewitched into Rebellion contrary to Oaths and solemne Protestations and repugnant to Christianity For they are condemned out of their owne mouthes unlesse that grosse non-sense be true that they shot at him as at Edge-hill for His preservation and endeavoured to kill him in his owne defence It is miserable comfort which the doubtfull signification of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 can afford but sinking men catch hold of every reed The word in the Greek is rather to be translated judgement and punishment the words following are peremptory and as Piscator observes thereby is not meant eternall damnation but the punishment of the Magistrate in this life Master Bridge his Answer to Doctor Ferne. p. 4. This calls to minde those men of whom Minutius Felix saith they did optare potiùs quà m credere rather wish then beleeve that no such thing as eternall damnation was intended The Analogy of the place will evince that this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is like a sword with two edges fitted not onely to kill the body but to destroy the soule also That it threatens punishment from the Magistrate is very true but not all you must needs be subject not onely for wrath but likewise for conscience sake v. 5. 13. c. to the Romans You are exhorted not to rebell because you may be hang'd but lest confidence in numbers should answer this objection a stronger motive is used you shall certainly be damn'd It is probable you may take the Gallowes in the way but however Hell will be the end Though you escape a shamefull death yet you have forfeited eternall life §. 4. I Will begin with a most remarkable passage in Calvins Institutions wherein are many things worth our observation and which will conduce much to the decision of the present dispute Neque enim si ultio domini est effraenata dominationis correctio ideo protinus demandatam nobis arbitremur Quibus nullum aliud quà m parendi patiendi datum est mandatum De privatis hominibus semper loquor l. 4. c. 20. § 31. If correcting unbridled governments be his worke who said vengeance is mine we must not therefore take Gods office into
bloudy villaines by whose hands the two French Henries fell might have made the same plea for their execrable murders If they had not come in their way which they might have avoyded by locking themselves up or by some other meanes they had not beene killed by them But he implies a desire and beseeching him not to be there but to withdraw himselfe If the King had as full right to be there as in any other place within his Kingdome they may with the same reason justify the murder of him if he will not be intreated to keepe such company only as they shall allot to him or to leave his Court or creepe into an oven The Author extreamely contradicts this duty before professed in the name of all of flying or passive obedience and layes downe a most desperate conclusion which dissolves all governement and makes Anarchy legall Upon suppossall that Parliaments taken in the onely true sense for King and Lords and Commons should degenerate and grow tyrannicall I confesse sayes he the condition of such a State would be very dangerous and like to come to confusion particular men could not helpe themselves and the whole State marke how he fancies a whole State when opposed to King and Lords and all the Commons representatively what can this State be but such a number of particular men who he saith cannot helpe themselves ought to suffer much before it should helpe it selfe by any wayes of resisting but if you can suppose a Parliament so farre to degenerate as they should all conspire together all in Law are the major part of both Houses with the Royall assent with the King to destroy the Kingdome how unreasonably he expresses a supposall of being wonne to satisfie private Interests by making prejudiciall lawes to the Subject in generall let him translate the scene into Ireland and he may thinke the supposition very possible and to possesse the lands and riches of the Kingdome themselves not all but in an unequitable proportion in this case whether a law of nature would not allow of standing up to defend our selves yea to reassume the power given to them this is a cleare confession they parted with their power to discharge them of that power they had and set up some other I leave to the light of nature to judge Object But you will say this cannot be because the higher powers must not be resisted by any Answ This is not properly to resist the power but to discharge the power to set the power elsewhere They daily improve their principles and now professe plainely what understanding men did before collect from their grounds that it is lawfull not onely to depose a King but even the Parliament He is very apprehensive he hath spoken out and it is very strange the Committee should order this doctrine to be published I know sayes he this will be cryed out of as of dangerous consequence wherefore God deliver us as I hope he will for ever making use of such a principle pag. 133 134. They confesse generally they are bound to defend the Kings person and if they should say otherwise we have their oathes and solemne protestations against their words witnesse the 23 day of October which may require an Annuall gratitude for the great deliverance both of Church and State in the preservation of His Majesty whether they did according to the information of their owne consciences All the answer I can meete with carries this sense which I will expresse in Mr Burroughes his words As for the Kings person is it not the profession of the Parliament to defend it pag. 112. and againe why doth the Doctor speake of stretching forth the hand against the Lords Anointed who endeavours it doth not the Parliament professe the defence of the Kings person pag 120. Hence it appeares they know their duty the question is whether they performed it who directed their Canon more especially against His sacred Majesty which they cannot esteeme an accidentall thing who are not ignorant of that treacherous advertisement which Blague gave in to the Earle of Essex in what part of the battell the King and Prince were that they might at one blow cut off our present happinesse and future hopes I desire onely that their eares would not hang in their eyes and that men would not beleeve authority against sense I shall onely say most miserable is he who condemneth himselfe in that thing which he allowes and practises Exc. Tyrant is opposed to King and they are incompatible Answ If they understand tyrant under this notion as an usurper this is very true but nothing pertinent for there is not any just scruple but those may be turned out by force according to law who come in by force against Law as in the case of Athalia destroyed by Jehoiada whereby Joas◠who had true title was established in the throne But if they meane as they doe if they would conclude for themselves a King having right to governe and proving a wicked or weake Prince it is false that this Tyrannus cum titulo the Lords Anointed though he abuse that power for Chrisma domini this holy oyle onely excludes usurpation and includes a just title onely and not either the Orthodox religion or goodnesse or prudence is opposed simply to a King but to a just or wise King As therefore his right to the Crowne is not founded in his divine or morall vertues but in a lawfull succession so neither can contrary vices dispense with any to depose him or lift up their armes against him This will be evident if we consider what kinde of Prince he was to whom Saint Paul writing to the Romans forbad resistance for conscience sake It was Nero in whom very happily this position might be inforced to the height and yet all their exceptions are determined invalid Notwithstanding his Idolatry his oppressing his Subjects by strange cruelties and persecuting the Saints Quae divisa tyrannum Efficiunt collecta tenens Yet the Apostle commands not to resist even him upon paine of damnation Our or rather Saint Pauls adversaries seeme to object durus hic sermo this is a hard saying The Law of Nature allowes selfe preservation the people made Nero Emperour by their consent for usurpation can give no right and therefore are more powerfull then he for Quicquid efficit tale est magis tale The people may be without the Emperour the Emperour cannot be without the people It is not probable the safety of mankinde should depend upon the lust of one man c. I shall answer with the Civilian who teacheth us to obey and not dispute even humane constitutions Quod quidem perquà m durum est sed ita lex scripta est L. prospexit D. qui à quib It was Gods pleasure so to order humane affaires Such Christian submission doth most commonly produce peace and plenty in our streets and is the mother of many goods but if the abuse of power should bring
be impatient though we be cut off by a wicked executioner Exc. Many examples are alleadged out of the old Testament to colour this breach of duty Answ We have plaine precept not to resist and must conforme our actions to knowne rules not the practice of others For instance Who can lift up his hands against the Lords anoynted and be guiltlesse this implyes a command not to rebell Let every soule be subject to the higher powers He that resists the power resists the ordinance of God Submit your selves to every ordinance of man for the Lords sake whether it be to the King as supreame or unto Governours as unto those who are sent by him Legibus vivendum est non exemplis Examples can onely shew what was done not what ought to be done To answer briefly the examples by them produced are either impertinent as being acted upon Usurpers or not to be drawne into a rule because extraordinarily allowed by God who may dispense with his owne law but this cannot warrant our imitation no more then the Israelites robbing the Aegyptians can licence Plundering or any other illegall weakning the wicked or Jacobs lying to his Father can excuse want of sincerity and truth when by false reports they may probably undoe their brethren or Jaels breaking trust in murdering Sisera can dispense with killing enemies after composition made to save their lives or lastly they were unjust To runne over the particulars would be more tedious then profitable because they are all clearly solved by applying one of these three They are impertinent or extraordinary or wicked Secondly If wee should grant that it were lawfull for the Jewes to resist Tyrants in their owne defence this comes not home to us who are called as Saint Peter sayes to beare the Crosse and to follow Christs example When wee are in danger of being killed for our Religion all that is allowed to us is only to flye from one City to another Wee may better submit to so high a degree of patience in consideration our well being is not provided for in this world and despise death because the joyes of eternall life are so plainly set before us in the Gospell whereas under the Law they were entertained with promises of temporall blessings and it must needs goe to their hearts to loose the proposed reward of keeping the Law length of dayes by their due observance of it and this upon a suspicion of a better life rather then a confidence grounded upon any plaine promise Exc. 1 I have formerly shewed the practice of the primitive Christians which was so apparent that not having so much impudence as to deny it neverthelesse they have invented severall exceptions to it which take of the glory of their innocence I have beaten them out of their strongest fort which was this deerant vires They had a good will to rebell but wanted power onely Exc. 2 The Christians were but private men and for that reason could not lawfully resist but if they had beene countenanced with the authority of the Senate questionlesse they would not have submitted themselves so tamely to the slaughter Answ First these men who grant thus much are bound in conscience to answer their owne arguments drawne from the law of nature which they tell us allowes selfe defence though with the Magistrates destruction and taken from the chiefe topique of their invectives that no body did contract to be ill-governed much lesse to be ruined and therefore no obligation can lye upon them not to preserve themselves But these and such like reasons are evidently confuted by all those Texts which bind us to suffer though wrongfully as wee have Christ for an example c. Those holy men who submitted their bodies to the flames lookt upon martyrdome not as a thing of choice but of duty They might have pleaded the law of nature and and the injustice of their persecutors whose office was to be a terror to the evill and to countenance doing that which is good but such sophistry could not prevaile upon religion which had bound up their hands from revenging themselves upon private men and much lesse upon the Magistrate Secondly that the Senate had no authority to wage Warre against their Emperour will be evinced from Rom. 13. 1. 1 Pet 2. 13. 14. applyed to the civill constitutions of the Roman Empire Submit to the King as supreme that is to the Roman Emperour saith Diodati c. all'imperator Romano detto tal-uolta Rè dalle natione stranieri Vlpian acquaints us there was not any legall power but in him what he determines hath the force of law he adds the reason because the people in whom the Senate are included by the lexregia gave unto him the right to manage all their power Vtpote cum lege Regia quae de imperio ejus lata est populus ei in eum which signifies in se saith Theophilus omne suum imperium potestatem conferat l. quod princ D. de const princ Justinian clearely decides the case if the Emperour shall take any cause into his cognizance omnes omnino judices let all judges whatsoever know that this sentence is law to all effects not only in the particular cause but it becomes a rule to decide all like cases by For what is greater what more sacred then the Imperiall Majesty or who is so insolent ut regalem sensum contemnat The sense even of the Senate was not to stand in competition with Royall constitutions l. si imperial D. de legib Wee may fitly observe that some Emperours did by Acts of grace limit their legislative power which was solely in them and bind themselves from the use of it without the advice of the Senate as is to be seene l. humanum Cod. de legib and may be collected from Auth. Habita quidem C. ne fili and divers other constitutions yet this gave no power to the people to be imployed against them if they should not performe their duty This grant made the Roman Empire like the Kingdome of England for wee have a cleare and full testimony from our Common Law that the legislative power is onely in the King though the use of it be restrained to the consent of the Lords and Commons in Parliament le Roy fait les leix avec le consent du Seigneurs Communs non pas les Seigneurs Communs avec le consent du Roy. The King makes Lawes with the consent of the Lords and Commons and not the Lords and Commons with the consent of the King or that which Virgil describes gaudet regno Trojanus Acestes Indicitque forum Patribus dat jura vocatis It is the most unreasonable thing that ever was fancyed that Subjects assembled should have greater authority then their King without whose call they could not have met together and at whose pleasure they are dissolved in Law and bound to depart to their owne homes Exc. 3 The Anticavalier doth pitifully intangle
Armes then twenty if twenty be accused and then a hundred then a thousand then ten thousand if ten thousand be accused and so more or lesse as occasion serves for there is the same reason for two as for one for a hundred as for twenty for a thousand as for a hundred and take away this power from the Parliament and 't is no longer a Parliament But the King and His Forefathers have by Law setled these Liberties of Parliament and therefore according to Lawes they have ae power to send for by force those that are accused to be tryed before them which they cannot doe unlesse they raise an Army when the accused are kept from them by an Army Master Bridge in his Wound consci pag. 6. Answ First the House of Commons is no Court of justice it hath indeed by speciall priviledge for it's better regulation power over it's owne members to imprison or turne out and this power though at any time abused against justice and equity and contrary to the trust reposed in them both by King and people as if men should be committed for delivering their opinions freely because their reason was not so happy as to concurre with the sense of the House which may possibly be the passions of the major part or if some should be accused and others past by though of knowne guilt in the very same particulars as having an hand in monopolies c. and so not the cause but the person he made the measure of right wrong yet this misused authority hath the effects of justice and right makes the act legally valid But the House of Commons hath no jurisdiction over those who are without except at most in case of breach of Priviledge it cannot judge or condemne any no not so much as examine upon oath so that the argument is the Parliament that is the House of Lords as the highest Court of justice may legally raise an army without the consent nay against the command of the King it concludes too without the consent and if they please against the expresse will of the Commons declared to the contrary This doctrine once since this Parliament sate would not have been so pleasing to the lower House that they would have taken care for printing it by Order from their Committee There was a time when one of this House professed openly he hoped to see that skie fall too and the Lords were put in minde they sate but in personall capacities whereas Knights were shires and Burgesses were townes and Cities and therefore it was thought fit to give them warning and to admonish them to take heed how they thwarted the representative Kingdome Secondly by the same reason Judges of inferiour Courts out of Parliament at least may raise an army to fetch in delinquents if the framers of this objection had consulted with those Sages they would have better instructed them in the lawes In cases of such high consequences it was the custome of the House of Peeres to advise with these Oracles to take directions from them at least to know their opinion and the reasons of it because they had employed their whole time and studies to finde out the true meaning of the lawes Thirdly To discover their mistake and the inconsequence of the argument There is the same reason for twenty as for one and so for an hundred for a thousand for an army c. The reason is not the same because when a few are sent out the administration of justice doth not indanger the common peace But because a warre doth put the whole Kingdome in manifest perill of being ruined therefore when either reall delinquents or pretended to be so are so many as to make the tryall doubtfull the liberty and right of inferiour Magistrates to fetch them in by force is in this case restrained by expresse lawes which provides very prudently that no warre shall be made except authorized by the supreame governour And therefore also the lawes permit the King to pardon all offences against his crowne and dignity supposing he will doe it as sometimes out of goodnesse of nature so sometimes out of the strength of his understanding because not mercy only but wisedome and prudence may prevaile with him to forget offenders when they are so potent that the uncertaine punishment of nocents for the worst cause may prevaile as in the case of the tribe of Benjamin so Victrix causa Deis placuit sed victa â—atoni must be bought with the unavoydable destruction of many innocent and gallant persons Wherefore Serjeants at armes and officers may be sent by the House of Peeres and consequently by Judges of inferiour Courts and ordinary Justices to force delinquents to appearance though their crime ought to be specified for to call them malignants or delinquents is no legall charge if they be not so many as that they make such resistance as cannot be punished without an Army for a civill warre endangers all and begets more faults then it punishes and therefore the lawes referre the ordering of the common-wealth to him who is supreme least inferiour magistrates violently carried on should out of indiscreet zeale to justice expose the Kingdome to contributions plunderings and thousand remedilesse injuries more greivous then those they seeke to punish Exc. Warre against the person of the King is not resistance of the higher power but warre against his authority only Buchanan right Non igitur hîc Paulus de iis qui magistratum gerunt agit sed de ipso magistratu h. e. de functione officio eorum qui alis praesunt dial de jur reg Answ This separation of the officer from the office which hath created bella plusquam civilia the King in this army fighting against himselfe in the opposite army is made without all colour or shadow of reason for though the authority of the King be some times where his person is not yet his person cannot be where his authority is not This is evident by the 25. Edw. 3. c. 2. which makes it Treason to compasse the Kings death by which must be meant to endeavour his personall ruine because Regall authority never dyes in England I have shewed formerly that by not resisting powers is meant not resisting persons invested with such power For when Saint Paul hath forbid to resist the power he explaines it by adding a reason drawne from the persons in authority to encourage them to obedience for Rulers are not a terror to good workes and so after for they are Gods Ministers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the masculine gender which cannot be applyed to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that he might leave no ground of scruple but plainly instruct us that honour is due to their persons and that all resistance to their persons is sinne because of their authority Saint Peter is as cleare Submit your selves to every Ordinance of man for the Lords sake whether it be to the King as Supreme or unto Governours
doe otherwise for the use is left indifferent in respect not of the Magistrates but Subjects duty so that abuse doth not voyd authority when swerving from lawes is of divine constitution The obligation not to resist superiour powers receives not strength from mans justice nor is it weakned or made null by injustice Saul was Gods anoynted and Pilate had authority from Heaven notwithstanding the extreame abuse of it Had the Apostle meant as they endeavour to perswade the world considering what Governours the Christians then lived under he had laid downe a doctrine of rebellion whereas he labours to teach them patience Thus much in answer to their objections against what was delivered in the second Section I shall now examine their exceptions against what was assumed in the precedent Section The King of England hath Supreme power Exc. There is a mixture or coordination in the supremacy and the English Monarchy is compounded of three coordinate estates Answ I have shewed before that a mixt Monarchy is a contradiction and that by this name can only be meant a restrained and limited Monarchy that is that such a King though he have Supreme yet hath not absolute power By reason of this restraint from his owne grant and positive constitutions active obedience is not due to his illegall commands and by reason of his supreme power and sole right to make Warre and Peace passive obedience is necessary Monarchy compounded of three coordinate Estates in plaine English speaks this nonsense the power which one only hath is in three joyntly and equally The ground of this invention and so much fancyed coordination which our ancient Lawyers never dreamt of may be this If they meane by it that the consent of all three Estates I will not alter the new manner of expressing this government but only take notice by the way that heretofore the Parliament was taken for an Assembly of the King and the three Estates and that in all other Kingdomes likewise there are three States the Clergy the Nobility and the Commonalty distinct from the Head are equally required for transacting such businesses as the King hath obliged himselfe not to doe without them and that they have the right of a negative voice wee shall indulge to them the name of coordination to two purposes which are making new repealing old lawes and supplying the Kings necessities in such proportion as they shall think fitting These are great democraticall advantages but include no authority of making hostile resistance against their soveraign in case he should do contrary to the established laws These are still in force till abrogated by joynt consent and bind his conscience but he cannot be forced to put them in execution because he hath no superior in jurisdiction and he hath no equall in managing jus gladii the materiall sword which is necessary to distinguish their resistance from rebellion and give it the title of a just warre For except they can prove themselves not be His Subjects I am forced to tell them if they fight against him they are by the law of Nations and of this land worthily reputed Rebells and by divine law they are assured of damnation Thus therefore the two Houses or two Estates of Lords and Commons are not bound to submit their consent to the Kings command in matter of Subsidy or taking away any ancient Law if they conceive it disadvantageous to the Common-wealth Par in parem non habet imperium in those things in which they are equall as a rather and a sonne being joyned in commission in this sense let them be called coordinate Yet they are subject in all other things and therefore may not take up armes without his consent for this is destructive of their alleagiance If there be a Coordination in the supremacy that is if the King and Lords and Commons are joyntly the supreme governour the Correlatum is wanting none are left over whom they should Reigne wee should have a Kingdome without a Subject because all may challenge a share in soveraignty The Parliament not sitting they will not deny the supremacy to be solely in the King and certainly by calling His great Councell together he doth not empty himselfe of any regall power it were very strange our lawes should be guilty of such vanity to make a uselesse coordination for if His rivalls should make any attempts upon His Prerogatives He can legally dissolve them except when he hath past a particular grant for their continuance and then the enlargement of their time of setting doth not enlarge their power and after He hath dismist the Assembly as the right to doe so is unquestionable then He is Supreme againe none being left to stand in competition The cleare businesse is this all markes of supremacy are in the King nor is it any Argument of communicating His power that He restraines Himselfe from exercising some particular acts without consent of Parliament for it is by vertue of His owne grant that such after acts shall not be valid He hath not divided His legislative faculty but tyed Himselfe from using it except by the advice and consent of the Peeres and at the request of the Commons their rogation must precede His ratification I shewed this in the Roman Empire likewise and yet none fancyed an equality between Subjects and the King or Emperour was thereby introduced As the houtefeus of France argued from the denomination of Pares Franciae to make them equall with the King so our Incendiaries from Peeres and Comites to bring in a coordination whereas it is evident that Peeres referres not to the King but signifies as the Persian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mentioned in Zenophon Subjects in the same ranke of honour and enjoying equall priviledges one is another And to make Comites is called by Lampridius in conubernium imperatoriae majestatis asciscere our lawyers derive them from having that speciall honour to be in comitatu regis Suetonius calls them comites peregrinationum expeditionumque Tiberii They were of three rankes under the Emperours Comites intra consistorium were the highest and in the nature of privy councellours but created by the Emperour the fountaine of all honour and so not similes altissimo equall to him though exalted above fellow Subjects The briefe is the frame of governement as it is established by our lawes clearely condemnes their undertakings and therefore they have laid such a foundation as will support the building For if they can but prove that Parliament men and those who are stirred up to fight against their Soveraigne are not the Kings Subjects they have acquitted them from being Rebells We have seene the ground worke and shall now take the superstructure into due consideration the whole fabrick is comprised in that exiome so frequently applied to justifie all illegall proceedings Coordinata se invicem supplent Coordinates ought mutually to supply each others failing that we may not suffer whether by necessary or voluntary defects and that
and make use of the impatience of distempered men to compasse their owne ends though I say such a sullennesse would make the Kingdome miserable yet it is their right to deny the most reasonable proposall and there is not any legall remedy against inconveniences which will certainely flow from hence Neither necessity nor propterea quòd regnum nostrum periclitatur which is the same with saius populi suprema lex can enable the King justly to provide for the Kingdomes safety by raising money against the known Lawes he may in this case dissolve the assembly and onely use such meanes as are not contrary to Law By reason of these negative voices and the Kings right as to call together so to breake up that great councell there was not any hope of new moulding this State to particular Interesses and therefore these unequall compositions of the House of Commons had no influence to the disadvantage of the Commonwealth Yet now wee may probably suffer under them if this new doctrine take place That the Kings consent is past and involved in the Lords and Commons for the next rub of the Lords negative is removeable by the same Logicke of Coordinata se supplent and that the people may not perish for defect of a supplementall Law it was essayed formerly that they sitting in personall capacities should not oppose what conduced to the safety of the Kingdome represented by the Commons and those two grounds being laid as the King and Lords are voted out of Parliament so it is very probable the Gentry would be but very thinne in the House of Commons upon new election hereafter because the disposall of all would be put into their hands whose interests are most disjoyned from the publique tranquility as enjoying least by the present establishment in this State From hence it is apparent what confusion were likely to follow and the short experience we have had hath already too fully acquainted us with the miserable consequences To answer distinctly to their axiome coordinates supply each others failing if it should be understood in that sense which they plead for that the King failing to performe his duty the Lords and Commons are enabled to transact businesses without him by vertue of this rule upon the very same grounds the King and House of Commons may exclude the Lords the King and Lords may exclude the Commons but this being destructive of the fundamentall priviledge and right of either House this onely can be meant by it in the present case that the power of any one or two of them is defective to some purposes expressely named in our lawes as for enacting new lawes or raising money upon the Subject without a joint consent of all three This interpretation is very reasonable but it concludes against them and forthe King for he requires nothing but what our Lawes grant him and what he alwaies acknowledged equally their due a right to a negative voice in those things to which the three estates are coordinate The use of it cannot be injurious for a deniall to bring in a new governement doth not take away the old it leaves us in that happinesse which our Fathers were content with Exc. All other matters wherein the exercise of His supreame power is not restrained by making their consent a necessary condition without which it cannot be actuated he may manage solely as for instance he may and ought to protect His Subjects and to make use of those meanes with which the law hath invested him to enable him to compasse that end and these are the Militia or armes of the Kingdome Answ The King though he be singulis major yet he is universis minor I am forced to take notice in the first place of that lamentable sophistry which yet hath deceived many # though it hath bin often discovered they still persist to abuse the people with it The strength of all their discourses depends upon this syllogisme the Parliament is greater then the King the assumption is built upon a false foundation The two Houses are the Parliament Ergo the two Houses are greater then the King The proposition is granted because Parliament includes King and Lords and Commons and his legislative power as to the use of it is so restrained that it cannot be legally exercised without their consent and this obtained in Parliament it becomes absolute to those purposes to which they passe their assent 25. H. 8. 21. So that the onely meaning is he can do more in Parliament then out of it But the minor is absolutely false for the King is caput Parliamenti and so an essentiall part of Parliament I am ashamed to bring quotations out of the lawyers to prove what is so manifestly true For if the King were not a necessary part of the Parliament the Parliament as it is being rightly understood for the head and body were the whole Realme then we should have a Kingdome without any King Object One objection is frequently urged there must be a Parliament somewhere for it cannot be dissolved without their consent which is not yet past but it is not at Oxford nor no other place London excepted therefore it is there and consequently the Houses are the Parliament without the King or else His authority is in their votes Answ The want of Logique hath proved as fatall to this Kingdome as the want of conscience I cannot determine which hath had the strongest influence in our calamities the malice of some or the ignorance of others Suppose the Lords should remove their House out of the City as they have an undoubted right so to doe upon the agreement of the major part and there might be some motives for it for to say nothing else their number would be more then doubled where would these men place the Parliament If the King and Lords should legally sit in Oxford were the House of Commons thereby excluded from being a part or could they be concluded the whole Parliament It is not an union in respect of place but an union of their assent and the Royall ratification which actuates the power into a law The Kings absence doth not destroy the being of Parliament no more then if he should dissent being present nor doth it forfeit his power into their disposall as you may see 33. H. 8. c. 21. His assent by his letters patent is and ever was of as good strenght and force as though the Kings person had beene there personally present and had assented openly and publiquely to the same But what if he dissent from them and refuse to confirme their votes Then they ought not to have the force of lawes no more then if the King and Lords should agree on any thing the Commons contradicting it neither is a legall establishment If they say his obstinate refusall voides the Parliament for it is made of no use if it may not be active when deserted by him and except he please to establish their
ordinances The King might as well presse the Commons to consent to what he and the Lords shall thinke fitting because otherwise they void the Parliament for it is of no use if it may not be active without their assent which they resolve not to passe This constitution of the negative voyce in either of the three estates was made in favour of the present governement the goods of which were knowne by experience that no innovation the evills of which are hardly discovered before tryall might be introduced without a joint consent of all three The whole Kingdome is greater then the King Answ If they meane by whole Kingdome both King and people it is very true but nothing pertinent for it onely signifies that the head is not so great as it self and the rest of the body But if they understand as they must if they meane to conclude any thing the body in opposition to their Soveraigne it is false that universitas subjectorum est major Rege The same reason which makes him above one makes him above two and so above ten so ten thousands so ten millions of thousands for their assembling together doth not dispense with their duty of alleagiance many or few alters not the quality of the act an universall revolt from a lawfull Soveraigne is equally Rebellion as a particular defection of one or more Countyes The Orators art is much used in these unhappy times 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 misdemeanors were once raised into high Treason and now evident treason is lessened into necessary defence That rhapsody of quotations intituled the treachery and disloyalty of Papists to their Soveraignes c. brings a very merry plea to take them off from being Traytors The stat of the 25 Edw. 3. c. 2. runnes in the singular number if a man shall levy warre against the King c. it ought to be judged high Treason therefore it extends not to the Houses who are many and publique persons p. 31. If he had sadly considered how deeply conscience is ingaged in the present warre against the King he would not have endeavoured to seduce so many into Rebels and make them forfeit their soules upon such pittifull subtilties If forraigners should inquire under what kind of government wee live the answer must be wee live over a King Certainly they will much wonder at the unnecessary humility of the Houses they challenging to themselves superiority as the representative all and conclude them very great Courtiers who in their addresses to the Prince their Subject stile themselves His Majesties most loyall and faithfull Subjects the Lords and Commons in Parliament They will shrewdly suspect if Majesty be His due that Supremacy is so also while Rome was a popular State the supreme dignity being in the people was expressed by majestas populi Romani and after when they had resigned up their power to Emperours it was changed into Augustalis Majestas taken for the person of the Emperour Câ—ubi apud quem l. cum scimus or Imperialis majestas C. de quadriennii praesc I bene à Zenone and so Keyserlich Maiestaet at this day for the German Emperour The custome of petitioning him and such humility in the title of their addresses and the preface suppose it should reach no further yet it cannot be wholely taken of by the imperiousnesse of the matter Some of that side seeme to be scrupled at it and therefore plaine scottish tells you they hold Declarations to be more sutable to the soveraignty of so supreme a Court whose power is coordinate with Princes wee must hold superior then petitions I have proved in a former discourse that the King is supreme head not in respect of single persons but the universitas subjectorum For this is comprehended in body politique compact of all sorts and degrees of people which is sayd to owe next to God a naturall and humble obedience 24 H. 8. c. 12. And it is evident that hee is not the head of this or that man but of all the members in conjunction of the whole body for else he would be the head of millions of bodies and by consequence have as many distinct Kingdoms as particular Subjects It is needlesse to multiply quotations as the 25. H. 8. 21. This your Graces Realme recognises no superior under God but only your Grace or Queene Elizabeths publique declaration that shee had next under God the highest and supreme government and power over all Estates of the Realme of England Ecclesiasticall or Temporall Camd. hist pag. 31. I will summe up the reasons in briefe which prove that the King is not minor universis First if the Houses are above Him He hath no right of Empire upon them because inferior in superiorem non habet imperium but this is false for they are subject by Law to His commands when he bids them come they are bound to come and when he bids them goe they are bound to go that is when he calls them by his Writ they ought to attend praescriptis die loco and he prorogues the assembly or dissolves it when he thinks fitting It is no prejudice to this right that he was graciously pleased to restraine the exercise of it in this present Parliament without their consent to the end those vast debts which were brought upon this Kingdome might be discharged and in order to that good security might be given to such persons as were willing to ingage their estates for the benefit of the common-wealth I will make no advantage by urging their abuse of trust by which they were enabled to take off that great burthen which they have made infinitely more heavy and whereas they might in short time have eased this State our debts hourely grow upon us and the Subjects estates are but the fuell to feed that fire which sensibly consumes this unhappy Nation Notwithstanding they have deceived both King and people yet His Majesty cannot satisfie Himselfe in their Logique and suffer Himselfe to be perswaded he may lawfully reassume His right because they doe contrary to trust Though the perpetuity of this Parliament was never intended and it hath beene of most pernicious consequence yet the King will not allow Himselfe any liberty to dissolve it against law upon most reall good intentions Because the president is full of danger and though in the present case it would be used for the benefit of His people yet hereafter it probably might be abused to their greater disadvantage Secondly the division of all persons in this Land is into King and Subjects liege Lord and liege people and therefore they must be placed in the latter ranke It is a strange phansie to abstract the body politique from all the particulars whereof it is compacted and to salve the Oath of Allegiance by telling us the universe or body politique never swore alleagiance or supremacy to the King neither is it possible it should Reply to answer to
that trust committed to Him by God and the Law for the benefit and protection of His people He is desired of signe the Bill for abolition of Episcopacy that which acquainted this Land with Christianity and to diminish the Rights of the Church and take away Ecclesiasticall revenues that He may be remembred in story as the unfortunate instrument to pull downe what the charity of many ages hath beene building and to destroy many pious Monuments and glorious testimonies of our forefathers christianity and to ruine what the devotion of our godly Ancestors hath contributed for the encouragement of learning and advancement of Religion To say nothing to the politique part how the Ecclesiasticall and Civill State are so interwoven that the foundation of the whole may thereby be shaken and how there are very good reasons to suspect a Presbyteriall Government will prove extreamely prejudiciall to Monarchy I shall speake only to the religion of this request And first I would willingly know whether there be such a sinne as wee have hitherto used to call Sacriledge so severely punished upon the Heathens the violation of things dedicated to false Deities being notoriously revenged by the true God and so extreamly abhorr'd by all good Christians in former ages and then whether Magistrates have any dispensation to commit Sacriledge innocently by which private men incurre a lasting infamie and eternall damnation Secondly I would willingly be satisfied in this Quaere whether the King having sworne to preserve the Rights and Immunities of the Church intire can innocently consent supposing Him fully informed in the nature of that right which belongs to His Clergy for the most religious Prince may be subject to mistake to lessen or abrogate them except released by the consent of that Body to whom He is obliged This poynt rightly stated I shall only offer it to be seriously meditated on without any peremptory determination may confirme the Lands of the Church for the future to the great improvement of our civill happinesse For besides that wee might reasonably promise to our selves a blessing from the Almighty if wee shew our selves as carefull to setle those Rights which tend to the advancement of his worship by a firme establishment of a certaine and honourable maintenance for his more immediate servants as wee are justly sollicitous to secure our secular interests by making provision that no mans Rights shall be alienated without the owners consents a great temptation and that which seemes to have the strongest influence in all attempts of innovation would thereby be cut off the hopes of repairing their decayed fortunes with the spoyls of the Church Wee shall find in stories that most of those stormes which disturbed former calmes and by which this Kingdome sundry times hath beene miserably shaken were raised only with intention to sinke the Church by such as promised to themselves considerable shares in the wreck Some answer He is equally sworne to the observation of Lawes but these He may alter with advice of both Houses Thus one I doe not conceive Him more bound to defend them by His Oath then the rest of the Lawes enacted any of which when the Kingdome desires should be abrogated I hope is done without perjury That which is commonly called the Lawyers Answer to D◠Ferne. p. 31. This doth by no meanes take of my scruple because His Oath to defend the Lawes enacted is made populo Anglicano to His people and so as all other promises by consent of the partyes to whom a right was transferred may be and really is forgiven by them represented in Parliament to that purpose But this other Oath is made to such a part of His people Clero Anglicano and particularly taken by Him after His Oath to the whole Realme which were needlesse except it meant some other obligation This seemes to prove it a distinct Oath and not releasable without their consent Upon the same grounds that these Rights are pleaded voyd if Voted downe notwithstanding they to whom they belonged expresse not their will to part with them the strongest security England can give is weakned and discredited that is the ingagement of the Kingdome to repay such sums by consent of King and Lords and Commons which and which only is publique Faith In such a case can the City be Voted payd except they willingly release the debt if they should be told their rights are not stronger then lawes but these are made null at the desire of the Kingdome in Parliament they would soone apprehend their logique to be extreamely faultie and it is probable they would maintaine that the representative Kingdome in Parliament cannot dispense with the Kings obligation to a particular body of His Subjects in whom alone the power of releasement doth lye He is desired to nominate such Officers to manage the great affaires of state as they shall confide in that is to yeild up His undoubted right happily enjoyed by all His Royall Progenitors into their disposall and to determine His choice by arbitrary feares If they will confide in those whom the lawes doe not distrust the King hath satisfied even this request for he will not preferre any against whom they can bring just and legall exceptions But he thinks it no good argument to induce him to turne able honest Ministers who may challenge from His accustomed goodnesse that priviledge of quà m diu se bene gesserint meerly because others desire to have their places They themselves would conceive it very hard usage to be put out againe upon the same title when no legall exceptions were produced against them and therefore they presse His Majesty to secure them when once in by law and yet will not permit him to be ruled by their advice out of equity and to continue His favours to those men who by a faithfull discharge of their places have shewed themselves worthy of that trust if it will be reasonable then it is so now to encourage faithfull servants by making their owne offences only and not other mens feares the rule by which they shall suffer Nemo illis sic timere permisit They might as well tell the world in plaine english but that advantages are still made of the peoples blindnesse except the King will grant such preferments to us and our favorites for let Him nominate whom He will they will never confide unlesse He guide His nomination by their instructions who are to approve them and the truth is when they have gained one He hath reason to request them to take the other for they will save Him the trouble of naming in vaine and He may thereby conceale His hurtfull affection and not expose His best friends to dishonourable repulses except wee may be Patrons they would once have been contented to be onely the present incumbents and suffer Him to retaine the right to bestow them freely for the future time wee shall never indure peace and yet wee must be forced to cast the envy of so
are truly transferred and now really in Him is very evident because else we should be bound to obey our Fathers commands before those of the King For divine precept stands in full force Honour thy Father c. and therefore we musts confesse tam pater nemo est in terris he that begot us is not so much our Father as the King is It may be fit to take notice here that the supreme power of a State hath by our particular deeds and common agreement as much right over not single persons onely but the whole body as every Father had over not this or that child onely but his whole family and as he cannot be said though major singulis natis yet totâ prole minor so neither a King if this power be placed in one which is essentiall to a Monarchy minor universis Though a Monarch hath greater right and larger power then even all the people could bestow upon him for he hath potestatem vitae necis He hath power of a higher nature from Gods grant and this Fathers have not now over their children over themselves it can only come from him who hath dominion over his creatures and therfore the people must looke upon him not only as their owne but as Gods representative yet to say nothing of this and to deale liberally with our adversaries by supposing though I cannot grant their principles true concerning the originall of power being in the people I can demonstrably convince them by most plaine and evident deductions from their owne scheame I tooke this method in my Answer to the Observations that by joyning issue upon their owne grounds I might put a quicker end to the debate It would have required more time to shew at large The Kings power was from God which was proved in briefe and there as is this discourse it is acknowledged to be restrained by His own or His Progenitors grants potest enim Rex vim regni minuere and so of much higher nature then the contribution of popular Votes could raise it to it was aboundantly sufficient to prove that the people have not any legall power against the King The former is built upon this pillar nemo dat quod non habet the power of the Magistrate was not in the people considered severally and before civill society and in such a State as the Aborigenes are described by Salust genus hominum agreste sine legibus sine imperio liberum atque solutum a multitude not a nation and certaine wild routs without Laws without Empire free to doe or suffer wrong and loose from all positive obligations Not any one having jus gladii a right to take away the life of man it followes they could not bestow it upon another for what is not cannot be alienated And therefore the supreame Magistrate hath more power then the whole people and is vice Deus Gods vicegerent Let them take heed how they call Gods minister the peoples Servant God hath taken especiall care the Magistrate should be honoured and respect is due as to his not their creature The latter that the people have not any legall power against the King is as firmely supported by another pillar nemo habet quod dedit Suppose the originall of power in the people or as they love to speake suppose them the efficient cause of power which cannot be but by giving to one man in a Monarchy to a Senate in an Aristocracy a right to use their divided strengths Since therefore they cannot retaine what they have parted with nor have what they gave away he which hath all their power I may adde his owne particular besides must needs be greater and more powerfull then they The truth is he is in a Monarchy and they are in an Aristocracy the only fountaine of all power and justice Answer to the Observat pag. 10. This is as certaine as that there are some governments besides Democracy for it is essentiall to them what is that which makes Anarchy except this that every man hath right to doe what he will Demonstration from the difference of formes of Regiment in reference to any nationall Law The only meanes to avoyd this confusion is to resigne up this hurtfull liberty which is very prudently done upon choice but necessarily upon conquest if it be given to one wee call that State Monarchy if to few wee call it Optimacy if to very many who rule by turnes and are elected by the people wee call it Democracy There cannot be any other ground to difference the formes of Regiment Hence appeares the weaknesse of those discourses which have no other strength then the impossibility that the people can make one greater and more powerfull then all they which is understood not of their naturall this cannot be past away to another but politique strength that is the right of using their power this may be and is parted with except the Governement be a Democracy because Quicquid efficit tale est magis tale The reply to the Answer to the Observations confesses my argument concluding if it were true that the people had parted with their power pag. 6. upon this the determination of the whole controversie depends and that it was rightly stated by me will evidently appeare because unlesse the people have resigned up their power the Author can never shew how this State is a Monarchy It doth not alter the case that the King hath restrained himselfe from the use of this power to some purposes without their consent as for making new lawes or raising money for this limitation only makes such acts illegall but doth not returne any power into them whereby they may be inabled to raise an Army or to oppose the Militia of the Kingdome against him to compell him by strong hand to governe according to law If the subject of this power be the people who may meet together and lawfully determine for though he resolve all into the two Houses yet if he follow the consequences of his owne principle he must goe thus high what they fancy conducing to their own safety wee are cleerly falne back into Anarchy To avoid this confusion the Author places it in their representatives but it will come to the same thing by undenyable deductions from his owne grounds For the same arguments which are made against the King equally conclude against the two Houses since Quicquid efficit tale Arguments brought against the King conclude as much for the people against the Parliament est magis tale and that they are intrusted for the common good may be equally applyed to them and then King and Lords and Commons are Voted away at the pleasure of the multitude The summe of his Book is that the people retain their power and therefore may make resistance in case he governe not according to law and he is responsable for such breaches The proofe is He is intrusted for their good and there is a mutuall covenant
betweene King and people and this violated by him dissolves the compact I have in this discourse punctually examined these and what farther grounds of scruples I could finde in the replyer as will appeare more fully in the following Section Being to answer so many I would not trespasse upon the Readers patience by an exact view of his particular mistakes which might have beene confuted with great ease but with no great advantage to the cause to which I have spoken more closely and as fully as I was able I will discover to him one desperate consequence from his principle which it concernes him to blush and repent for There is a mutuall Covenant betweene King and People and the breach of it dissolves the compact if so his Crowne is forfeited and he ceases to be King de jure upon such violation which he is now charged with because they could not have any colour for taking up Armes but upon this pretence Therefore the plaine conclusion is it is no want of duty in them though they depose him for it is no injury to take away what he can challenge no right to his claime was by vertue of compact which is dissolved by his not standing to conditions and so the bargaine is unmade the bonds of allegiance are broken asunder The Houses have laboured to cleare themselves from this wicked doctrine by telling us the deposition of the second Edward and Richard was not to be numbered amongst the presidents of Parliament and that no free Parliament ever attempted the like and yet a private man dares publish such manifest Treason I am perswaded that the Author supposing a breach of covenant of His Majesties part and then telling us such a breach dissolves the compact was not fully apprehensive that this pernitious principle unkings his Soveraigne When he sees his treasonable errour he will finde that Logick ill managed is a more dangerous weapon then a sword in the hands of mad men To returne to further proofes of the Kings supremacy Kings supremacy further proved That which makes a State one is the union of supreame power and this according as it is placed in one or more persons gives denomination to the forme so that all those Acts of Parliament which confesse this a Monarchy are so many solid testimonies of the Kings supremacy The Answer is Though this be demonstrably true in an absolute Empire yet it concludes not in a mixt Monarchy I am very confident a mistake of this mixt Monarchy hath engaged many well-meaning men against the King to the overthrow of our Lawes which the simpler part are perswaded they fight for Honestâ voluntate rebelles sunt there are some who contribute their forces to destroy this Kingdome in behalfe of the Common-wealth The true meaning of that which is called a mixt Monarchy and they are so farre deceived as to be made unhappy instruments to advance private interests with publique hearts And therefore it will be necessary to discover their errour by which their unfortunate Country hath suffer'd as much as by the saults of others They have not any shadow of excuse to countenance their Rebellion from this distinction unlesse mixt Monarchy doe signifie either that the people in their diffusive body or by their representatives have a greater or at least an equall power with the King The reason of which is because inferiours by the acknowledgement of all have not any jurisdiction over superiours and equalls though they have not imperium right to governe yet if injur'd and they require satisfaction and upon denyall of it attempt to compasse it by force they are esteemed by the Law of Reason and Nations just enemies whereas Subjects if they make warre upon their Soveraigne though when wronged are worthily accompted Rebels First the diffusive body of the people hath not greater nay not equall power with the King because they have not any legall way of expressing themselves Our Lawes determine it Treason to enter into any association or raise a Warre without the Kings consent and much more against his expresse commands Secondly the representative body hath not greater nor equall power with the King The same argument overthrowes their claime for the people cannot authorize them to doe beyond what themselves were enabled to therefore if actions of this nature were unwarrantable in the diffusive body they are so in the representative Representative Body is not the People to all purposes It may be not unfit to observe that the representative body is the people onely to some ends and purposes whereto they were intrusted by them according to Law and therefore no illegall ordinances such as all those are which the King denyes to ratifie ought to be called the Acts of the people They are no more concerned in it then if they should take upon them contrary to Law to stampe and coyne money with the inscription of Senatis populúsque Anglicanus or to send Ambassadors or denounce warre against or enter into a League of friendship with forreigne Princes or bestow the great offices of State or dispose of Wardships or take to themselves a power to raise Armes without His Majesties consent Againe because they represent the people but to some purposes onely though their principles were firme as they are extreamely weake that the King is lesse then His Subjects conjunctim and that they collectively are more honourable then He c. yet they bring not the conclusion home to the two Houses Because it doth not appeare and they had no reason to take it for granted that the two Houses which they call the Parliament are the people in this consideration A Jury is the representative people as experience teaches and we may finde it in Sir Thomas Smith l. 2. c. 26. The legall answer to that interrogatory How will you be tryed is Dei populique judicio by God and my Country and the Clerke of the Sizes replyes Ecce tibi hi probi viri populum repraesentant and the Sophistry would be easily discovered if we should argue they are therefore more honourable then the King We may take notice also that their arguments are onely capable of concluding for the House of Commons and if they follow the necessary consequences of them they must maintaine the Lower is above the Upper House for the Lords sit onely in personall capacities being inabled thereto by the prudence of our Lawes which thought it reasonable they should have as great a share in the government as a negative voyce came to because they injoyed such ample revenues that they were likely not to agree to any thing prejudiciall to the present setled State I shall prove more fully in the next Section that those who represent Subjects and that but to some purposes and not the King to any for this would overthrow that fundamentall constitution of three distinct Estates cannot be equall to much lesse above their Soveraigne And that groundlesse invention which denyes subordination and introduces
King is sub lege under the law hath this sense That he ought to governe according to those standing rules His Majesty freely confesses this obligation and since experience hath taught him the benefits of strict observance he will not be intreated upon what plausible pretences soever and much lesse will he be commanded to recede from their known and certaine direction But if he should swerve from these rules he is not liable to any punishment nor compellible by strong hand not for want of sinne for he offends highly in that case but for want of a superiour jurisdiction Bracton delivers this truth plainly wee have no legall remedy wee can onely humbly petition His sacred Majesty locus erit supplicationi quod factum suum corrigat emendet quòd quidem si non fecerit satis sufficit ei ad poenam quòd dominum expectet ultorem Nemo quidem de factis suis praesumat disputare multo fortiùs contra factum suum venire If he will not hearken to our just and reasonable desires satis sufficit his punishment is more then enough for he must render an accompt to him that judgeth righteously Let not men presume to question his deeds much lesse to undoe by force what he shall doe though not according to right That you may not thinke this dropt from him unwarily he repeates it in other places and lib. 5. tract 3. de defaltis cap. 3. § 3. He puts the case That the King should doe injury and a plea is brought against him in whose behalfe he did it the King being petitioned and persisting and he rules it thus Quo casu cùm dominus Rex super hoc fuerit interpellatus in eadem perstiterit voluntate quòd velit tenentem esse defensum cum injuria cum teneatur justitiam totis viribus defensare extunc erit injuria ipsius domini regis nec poterit ei necessitatem aliquis imponere quòd illam corrigat emendet nisi velit cùm superiorem non habeat nisi Deum satis erit illi pro poenâ quòd Deum expectet ultorem If the King who is bound to administer justice to his utmost power will not recall the wrong he did upon a false suggestion in this case he injures his Subjects but no body can force him to doe right because he hath supreme power he hath no superior but God only and it is sufficient that wee shall have a day of hearing hereafter at a just tribunall where he shall be punished for doing wrong and we amply requited for our patient suffering In lib. 2. cap. 16. § 3. he attributes the highest authority to the King of England If the place be rightly understood by a wise Chancellor of this Land whose collections from thence I shall lay downe you may finde them in his case of the Postnati pag. 107 108. De chartis regiis factis regum non debent nec possunt Justiciarii nec privatae personae disputare nec etiamsi in illa dubitatio oriatur possunt eam interpretari in dubiis obscuris vel si aliqua dictio duos contineat intellectus domini regis erit expectanda interpretatio voluntas cum ejus sit interpretari cujus est concedere The sense is that all casus omissi cases not determined for want of foresight are in the King so that it gives not power to him to make new or abrogate old Lawes without consent in Parliament but the right of interpretation belongs to him not in plaine and evident cases for these need no declarer to challenge a right to declare all Lawes were in effect to make them and then all the Subjects rights would be in their brests and depend upon arbitrary votes but only in new questions and doubts which must not be resolved contrary to old Law By this it appeares that Subjects ought not to judge of the equitable part of Law and to overthrow the literall sense at pleasure to the praejudice of their Soveraigne Our King hath as much right by our constitutions as that civill Law gave the Roman Emperours Inter aequitatem jusque interpositam interpretationem nobis solis et licet et oportet inspicere l. i. c. de leg et constit or that other Rex solus judicat de causa a jure non definita Notwithstanding such expresse testimonies of the Kings supremacy yet such is the ignorance of some these transcribing only and onely varying the method of treason in their seditious pamphlets as appeares by that remarkable errour borrowed out of the observations of Richard the second being misled by Spencer which I have met with in many of their libells and such is the malice of others who have searched the place in Bracton by them quoted that his authority is cited against the King almost in all their Pamphlets which either speake Latine or pretend to knowledge in the Lawes The author of the fuller answer to Doctor Ferne tells us Bractons authority abused by them the two Houses collectim considered in a joint body are not Subjects p. 4. And Bracton he sayes will beare him out in it Rex habet superiorem Deum scilicet item legem per quam factus est Rex item Curiam suā viz. Comites Barones c. The King hath above him besides God the Law whereby he is made King likewise his Court of Earles and Barons c. This man hath betraied either want of knowledge or want of honesty I suspect the latter because he must needs understand that this was a very unfit proofe of coordination between the three Estates upon the strength of which his whole discourse hangs and it is meerely begg'd for this concludes against it and makes a most absurd subordination of the Soveraign to such a number of his Subjects and therefore he confesseth hee need not goe so high The adding c. as he hath above him his Court of Earles and Barons and so forth doth discover their unfaithfull dealing For first here is not the least mention of the House of Commons which they would seeme to imply and therefore it cannot serve their turne and secondly the words following craftily left out shew the absurdity of it the reason of the speech is quia Comites dicuntur quasi socii Regis et qui habet socium habet magistrum ideo si Rex fuerit sine fraeno i. e. sine lege debent ei fraenum ponere nisi ipsimet fuerint cum Rege sine fraeno Because Earles are quasi fellowes to the King I may perhaps render the meaning by calling them his Peeres and he that hath a fellow or a Peere hath a Master And therefore if the King will indulge himselfe a loosenesse from all Lawes they ought to impose those bonds upon him except they also will cast off obedience to established Lawes Then he sayes no farther remedy is left but crying to the Lord and the Lord will returne this answer Vocabo super eos
miserable a warre upon him All understanding and dis-interessed persons must clearely discerne it is the same injustice not to consent the people should be happy and to keep up these publique calamities ununtill they shall be satisfied in their illegall unreasonable proposalls Though it be a more politique way duris conditionibus pacem pati velle to expresse a desire of peace but not to admit it but upon unequitable and unjust conditions yet it is equally dishonest as to deny it downeright They are altogether inexcusable unlesse they will make such proposals whereby it may appeare they covet not anothers but only to preserve their owne rights Which the King freely offers to them without diminution of the least title and with unpresidented enlargements by many additionall favours in this present Parliament He is desired to make the Houses sharers with him in ordering the Militia and to grant them a right to suppresse all forces but such as shall be raised by their consent This request is evidently destructive of that fundamentall Law which intrusts this power in the Crowne alone to enable the King to protect His Subjects and the Lawes The benefits of which constitution our happy Ancestors enjoyed and the greatest pressures the English nation at any time suffered under did spring from this fountaine when Subjects undertooke the managery of this regall right Because their desire is discountenanced by Law and being so though it were as really beneficiall as it is truely pernicious to the peace and quiet of a State opening a gap to civill dissentions necessarily arising from the opposite interests of consorts in power though it might be reasonably wished yet it cannot be innocently fought for They endeavour to justifie it by reason of State and plead the necessity of it as being the onely cure of feares and jealousies The recovery of this Kingdome were certainely desperate if His Majesty too should grow fearefull and jealous who hath beene more unanswerably tempted to give admitance to these unhappy passions For if they might seize on his power by the Law of feares if that it is taken from him becomes a motive to perswade him to give them right to keepe it might not he with greater shew of reason require an inlargement of his former power because it is manifest though they pretended to be afraid of it it was not able to secure him from their violence Much more might be pleaded why he should be enabled to keepe what the Law gives him then they not to restore what they have illegally taken from him But he contents himselfe with the ordinary meanes of safety appointed by Law and will not make himselfe justly formidable by giving entertainement to unjust feares and challenging a priviledge to doe injuries because it is not impossible he may suffer them and may loose his owne rights except he disable others by invading theirs If this principle should once prevaile peace and justice were lost to mankinde for it would still be some-bodies turne to be afraid and that would give them a right to greater power which right would cease as soone as they were possest of it and the true title to power would alwaies be in those who wanted it There is no other way to get out of this maze and confusion to which their wild feares inavoydably betray a State but by prevailing with our reason not to suspect those whom the Lawes have not suspected For as jealousies against Law are causelesse so they are altogether remedilesse The fuller answer to Doctor Ferne endeavours to excuse them by vertue of a commission from this principle abundans cautela non nocet but wofull experience hath evidenced the contrary he tells us further State jealousie hath no right hand error none on the excesse side the more the better pag. 27. It is much worse then private jealousie because this is but the misery of a family that the unhappinesse of a Kingdom To summe up all though some have gone so farre to indulge to Subjects a liberty to take up armes in maintenance of old laws yet no sober author can be produced who makes it lawfull to fight against their Soveraigne for the establishment of new laws It is not possible a strong desire of innovation should take off the guilt of so unnaturall a warre The King requires nothing but what the Subject cannot deny without injustice without perjury and consequently the guilt of all that bloud which is or shall or might be spilt his knowne legall rights and he denies nothing which the Subject can by Law challenge and hath indulged so much of grace as all ages cannot paralell and yet is still ready to consent farther if any reasons shall be produced to invite greater favours How will posterity hate this example and blush at the unworthy story of our proceedings who have discouraged good Kings by these ungratefull requitalls of such eminent deservings towards his people If we had not with our peace and plenty and innocence lost our reason too we should quickely be perswaded to accept of so great happinesse and not perversely hazard an ignominious death onely to make our lives miserable How are we become beasts in our understanding as if onely capable to suffer without any apprehension of the causes or remedies The result of all is life and death are set before the people it is in their election to be againe happy but they chose these miserable things and are active in their owne ruine For it will come to that if they stop not in their wild progresse The husbandmans store being consumed the pastures unstocked though wee escape the sword or bullet wee shall be devoured by famine or else perish by plagues or fluxes the fatall productions of unholsome dyet It concernes us to pray unto Almighty God that he would be pleased to restore us to our wits for if he would make us wise wee should soone make our selves happy by bringing the pernicious authors of these our miseries to a legall tryall wee should then clearely see that the preferment of a few men ought not so to sway with us that wee should sacrifice our Liberty and Property and suffer the Lawes to be violated the Protestant Religion to be dishonoured only in order to satisfie some particular mens ambition That indignation of the people in Virgil ingaged in a miserable warre to gaine that with bloud and ruine the want whereof was no diminution to their happinesse would too well fit the English nation Scilicet ut Turno contingat Regia conjux Nos animae viles inhumata infletáque turba Sternamur campis Must wee dye like dogs that they may live like princes How are the oppressed commons concerned in those mens illegall gainings that they should be contented to loose their estates and lives and soules in prosecution of none of their owne interests They fall unlamented unregarded while the contrivers of these mischiefes sit safe exposing others to the dangers grow rich while the impoverished Kingdome is reâ—dy to sinke under the burthen of its debts and are even wanton in our oppressions Since therefore the onely ground of this unnaturall warre is that His Majesty will not permit us to be lesse happy then our Ancestors choosing rather to suffer so many injuries and to expose His Royall Person to the dangers of open hostility then to wrong His Subjects and purchase safety or plenty by making such Lawes as private interests would force upon Him and the Kingdome Since He denyes nothing but the abolition of our good old customes which long experience hath confirmed to be extreamly beneficiall to this Nation Since they reject peace upon pretext it comes not accompanied with truth and meane by truth not the Protestant Religion as it is setled in this Kingdome and established by Act of Parliament but some moveable Creed the Articles whereof it shall be their priviledge to abrogate and to make it speake new doctrines according as they will suit best with their civill interests Since they fight not for certaine and knowne Lawes not for a certaine and knowne Religion that is not to restore but to take away and which is more intollerable that they may adde as yet they know not what It is evident the resistance now made is most offensive of the Subjects part and doth unavoidable incurre the Apostles sentence damnation FINIS ERRATA PAg. 2. lin 16. del p. 5 l. 12 read life p. 15 l. 26. r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 p. 17. l. 36. dele it p. 36. l. 20. for his r. your p. 42. l. 28. for not r. no. p. 77. l. 22. r. quod p. 86. l. 2. for the r. our p. 95. l. 2. r. whom p. 98. l. 11. for against which r. against which p. 123. l. 34. for eo r. to p. 134. l. 6. r. Grecian p. 135. l. 21. for not altogether r not altogether consonantly to p. 139. l. 15. for that r. the. ib. l. 34 for not be r. not to be p 158. l 17. inquiry
an unheard of co-ordination such as creates Regnum in Regno and rents this Country into distinct Kingdomes shall be refuted Since what is called mixt Monarchy cannot give such a right as is pleaded for that Subjects should be free to wage warre against their Prince because this liberty makes two independent States which are not compatible in one body but would be as really distinct Kingdomes in England as Spaine and France are I will endeavour to declare the true meaning thereof If we speake properly there cannot be such a thing as mixtum Imperium a mixt Monarchy or mixt Aristocracy or mixt Democracy Because if there are divers supreame powers it is no longer one State If the supreame power be but one that is that authority unto which Le dernier ressort de la justice the last appeale must be made and against whose sentence though unjust we have not any legall remedy this must be placed either in one man who is the fountaine of all jurisdiction and then it is a Monarchicall government or in some Nobles and then the Regiment is Aristocraticall and the sentence of the major part of them becomes Law to all effects whether concerning our goods or lives or if the civill constitutions of a State direct us to appeale to the people this is an absolute and true Democracy By a mixt Monarchy therefore not to quarrell about words nothing but this can reasonably be understood that it is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wherein the will of the Prince publiquely made knowne gives the Law Quodcunque Principi placet legis habet vigorem but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a government not arbitrary but restrained by positive constitutions wherein a Prince hath limited himselfe by promise or oath not to exercise full power This grant is of force because any man may either totally resigne or diminish his rights by Covenant Hence it is that in Monarchies all Kings have supreame power though they have not all the same jura Regalia their prerogatives are larger or narrower according to their particular grants For example our Kings have retained to themselves the rights of coyning money making great officers bestowing honours as Dukedomes Baronies Knighthoods c. pardoning all offences against the Crowne making warre and peace sending Ambassadors to negotiate with forraigne States c. and they have restrained themselves from the use of that power which makes new Lawes and repeales old without the consent of the Lords and Commons in Parliament as likewise from raising money upon the Subject without their consent Some doe aske How are we the better if we must suffer him to breake this Covenant as oft as he pleases it is the same thing not to have any Lawes and not to have provision for the observance of them First Difference betweene arbitrary rule and government restrained by Law notwithstanding hostile resistance unlawfull though in case of violation I must tell you this objection is answered by shewing there is a necessity that some body must be trusted It is no discretion to prevent a possible mischiefe by probable inconveniences if you will not trust one you must trust more that is if you are weary of Monarchy under which your fore-fathers enjoyed happy times and experience cannot cozen you though arguments may you know the way to cast it off by placing so many guardians over your Prince but have you any greater assurance then before Quis custodiet ipsos custodes They have as great temptations to faile their trust as he had and it is likely being warned by such a president of deserting your naturall Prince they may feare your inconstancy and upon pretence that you are subject to mistake and because they suspect you may be willing they will take such order you shall not be able to call them to an accompt But suppose this may not be and that those who suppresse Tyrants or perhaps excellent Kings under that name may not be frighted with their owne example to make use of their present power to exercise a greater tyranny for it is not impossible they should grow jealous too and tell you plainly they have no reason to trust you If you deny them money here is ground of diffidence your designe is to expose them to poverty so to contempt so to ruine But suppose I say nothing of this but that they will be secure amidst your jealousies which manifestly endanger their safety yet you will be forced at last to trust the giddy multitude who are alwayes weary of the present government because there are still some unavoidable defects and these are discerned by sense and they have not such depth of understanding as to foresee greater mischiefes which can onely be judged of by reason and therefore are easily perswaded to attempt a change so that your peace is built upon a very weake foundation you have no better security against a civill warre then that the greater part of the people will be discreet If things prosper not according to their wishes crafty men perswade them the fault lyes in those who have the managery of the publique and if these be not removed and honest and wise men meaning themselves put in their places their miseries will daily grow upon them A generall accusation of ill affected malignant persons wicked Counsellors is cause sufficient to out their supposed enemies of all preferments and put their pretended friends in their roomes This opens a gap to all confusion civill warre and most unnaturall distractions are the certaine issue of it Our owne lamentable experience confirmes this sad truth After you had obtained a perfect confirmation of all your ancient rights and liberties with a gracious enlargement of them by new grants and with such security as your fore-fathers were not acquainted with you are frighted with the possibility of a relapse To prevent which it was thought fit to take away the Kings power with which our Lawes had invested him as the necessary meanes for our protection because it was not impossible he might use it for our oppression Accordingly the Kings Navy His Forts Magazines and the Armes of the Kingdome are put into such as you would call safe hands I doe not aske with what conscience but with what judgement you did this The want of prudence was as great as that of honesty what hath beene the successe of confiding in those whom the Lawes had not intrusted are not your sufferings infinitely multiplyed are you not extreamely sicke of your remedy The tables are quite turned and your friends have undertaken the same bad game and play it much worse you onely make the stakes and are in a probable way to loose all that you have What one thing did you complaine of which is not exceeded by them your grievances are highly improved Magna Charta and the Petition of Right are now malignant they speake not the sense of the House but take part with the King To quote our
good and ancient Lawes is interpreted a breach of Priviledges of Parliament appeales are made to the people the ready way to a universall confusion And they according to private information and mis-guided affections did once passe this sentence that to imprison without cause alleadged and to deny Habeas corpus's is no intrenchment upon the liberty of the Subject to bestow mens estates by whole sale and take away their Money Plate or Goods doth not destroy the property of the Subject To scorne and revile the Booke of Common Prayer against an Act of Parliament which severely punishes such contempt and to supplant our established doctrine and discipline by countenancing Anabaptisme and Brownisme conduces to the holy Reformation and will in time effect that great worke and settle true Religion Thus much by the way to shew that we cannot have any absolute security in all governments it is necessary to trust some body For if we should retaine a liberty to right our selves not to mention the fatall mischiefes of Anarchy and that it is probable this freedome would be frequently abused to our wrong selfe-love making men partiall in their owne causes the decision of controversies would be writ in bloud and we should lay a fruitfull seed-plot of civill warres contrary to the end of society which is to preserve publique peace though sometimes with private losse because though we suffer some things by injustice yet we enjoy great benefits by common tranquillity but in the ruine of the whole the rights of single persons must be destroyed The hazard likewise appeares much greater by inabling those to injure us whom the Law hath not intrusted with our protection To answer their objection fully who would perswade the people there is not any differnce betweene arbitrary government and government restrained by lawes if Subjects may not compell their soveraigne to the observation of them Greater security would undoe us For though wee suffer sometimes under reall greivances yet pretended breaches of our rights which can never be wanting as long as ambitious persons are discontented would have the same influence to stirre up civill dissentions and it is a more prudent course to oblige some to sit downe though wronged then to open a certaine way for Schisme in the body by indulging a most pernicious freedome of righting themselves It was wisely said by Seneca satius est a paucis etiam justam excusationem non accipi quà m ab omnibus aliquam tentari For Kingdomes are many times disturbed upon meere pretences There are such who will set their country on fire only to warme their owne hands by it and trouble the waters that they may the better catch fish that is who will pursue private interests with hazard of publicke destruction He that doubts this let him consult histories and he shall find it hath beene fatall to the best Princes to have the worst Subjects I appeale to mens consciences whether they have not read and perhaps scene the reigne of a most gracious Prince a Prince eminently mercifull and just branded with the odious name of Tyranny And when malice it selfe cannot blemish his actions when he is not so bad as they could pray for for they would have made great advantages if they could charge him with personall vices as unchast intemperate or negligent in performance of religious duties yet craft hath done their businesse and abused the peoples weaknesse so farr as to make them active in their owne ruine by that wicked Art of declaming against evill counsellours Of such dangerous consequence is it to open a way to civill warre upon pretended miscarriages in government But grant not fancyed but reall injuries Yet non tanti est civilia bella moveri It is true the people are then not so happy as they might be but to make use of force as a remedy will encrease their miseries It is certaine this Kingdome never suffered so highly under the greatest tyrant as it hath already by this unnaturall warre and who can tell whither it may not end in a universall destruction If a King be forced to conquer against his will who knows how farre he may be tempted beyond his naturall disposition It is a melancholly consideration that a peoples perversenesse may change a gentle Scepter into a rod of iron But if Subjects prevaile we can see no end of the warre Forraigne nations will be powred upon this unhappy land there will never be wanting at home a considerable party as long as there are either honest or discontented men to fight for the regaining his haereditary rights to keepe whom in awe our fellow Subjects will plead a necessity of being tyrants I could wish it were not already acted upon us first their will made necessity and then necessity makes their will the measure of right and wrong and destroyes all law their wants will give law to us and imprison us upon bare suspicion of Loyalty and seize on our estates for feare they may be honestly imployed Thus we see a necessity of trust and that we are bound not only in conscience but in prudence also not to revenge the not performance of it I can further make it appeare we have very good security as strong as humane wisedome ever invented that we shall live happily and therefore we have no reason to robbe our selves of those great blessings which we lately injoyed peace and plenty upon vaine feares and groundlesse jealousies of imaginary miseries Our forefathers did not distrust the sound temper of this policy and they injoyed the benefits of it in a high degree First the King hath sworne to preserve our Lawes our Liberties our Propriety and our Religion and he desires God so to prosper him and his as he performes this Oath unto the Lord who will require a severe accompt Wee may make a highly probable conjecture of the sincerity of his royall heart and the unfeignednesse of his many sacred Protestations from his miraculous successe If God had not fought on his side if the immediate hand of providence had not supported him in mans judgment he had beene swallowed up Secondly if he should command any illegall things the executioners of them are responsable and must make satisfaction to the injur'd parties And they cannot flatter themselves with hopes of impunitie for once in three yeares a Parliament will call them to accompt and they have a great Democraticall advantage for the obtaining justice Because the Kings wants cannot be supplyed without their consent and it is very unlikely he will deny any reasonable petitions or reject any desires but such as robbe him of his honour which is infinitely deare to him above plenty except they endeavour to make him worse then poore which cannot be by demanding justice it is most probable he will readily assent Thirdly His interests are the same with the Subjects They are not like two buckets when one is lowest the other is highest but they resemble the Head and rest of the