Prerogative or power extraordinary but rather of his ordinary power and I conceive moreover power extraordinary or ordinary to consist rather in reason positive then negative in beeing rather then in non beeing and consequently in the Kings power to consent and Act rather then in his power to non consent and non-act which upon the matter is but ens negativum a deniall of acting enacting or coenacting with the Parliament â—d hath free â—er to doe at be pleaâ— yet the tribute of Omnipoâ—ce is not â—ominated â—â— his not â—lingnesse to â— but from power of â—ng able to â— if willing though the â—g have free â—er to conâ—â— or dissent â—is Parliaâ—nt even as â—s a body â—tick yet the â—ue of his â—thority canâ— bee denoâ—ated from non-wilâ—gnesse to â—sent but â—â— his powâ—â—facting c. â—illing wherefore concerning the Kings negative voice in Parliament I state the case thus viz. that his consent is either necessary or unnecessary to the consummating of an act in Parliament if unnecessary to what end should it be insisted upon if necessary then is his consent either voluntary free as in reason it may seem to bee as well as the consent of either House of Parliament or else the King is tyed and obliged not only in foro conscientiae but jure determinato to give his consent this last cannot be made appeare for a King of England hath power to write if willing to give his consent Le Roy It veult or if unwilling Le Royle avisera as for that allegation which some bring viz. that the King never writes Le Roy le neult or the King will not it seemeth to me of no great consequence for if the King may as a Politick body advise as he pleaseth he may consequently not will till he please wherfore his consent-must be voluntary that is to say the King hath free power to consent or dissent even as he is a Body Politick not withstanding that the vertue of his Authority consists in his possitive power of consent or being able to Act c. as aforesaid 5. Furthermore for my part I conceive that although the King have free power to consent or dissent even as he is a Politick body and that his consent give force and vertue to an Act and Statute as aforesaid yet his dissent doth not or cannot frustrate or make void an Ordinance concluded of and avouched by both Houses of Parliament and generally accepted of by the whole or major part of the Kingdome and the reason is because the Parliament is the representative Body of the Kingdom intrusted by the Kingdome and may therefore conclude of and constitute what shall seem expedient for the good of the Kingdome and such constitution or Ordinance generally admitted as aforesaid hath or ought to have the nature and vigor of Law for Ius Regni tâm Actuale quâm Potentiale is the peoples in generall they are interested in that the Kings interest consists in jure Regnandi but to this some it may be will object that almost all immunities and priviledges to Cities and especially to Townes corporate have been conferred by our Kings yea some will not sticke to affirme that all the liberties of the Kingdome have been granted by our Kings and that therefore it may seem unjust that any constitution or ordinance should have the nature or vigor of Law nolente Rege to this I answer that almost all such immunities or priviledges are included Radically in the generall liberties of the shares or shires of the Kingdome so that they are not meer Grants of our Kings but Treasures of the Kingdome in more speciall manner applied by our Kings to some places and persons and as touching all liberties of the Kingdome to have been granted by Kings I confesse I was once inclined to that opinion in respect of the conquest but having considered that conquest barely of it selfe createth no just Title as formerly instanced and that the Laws and liberties which this Kingdome now enjoyeth were upon the matter existent before the conquest that the Conqueror his heires and successors were obliged stricte in foro conscientia to conserve and maintaine them albeit they violated too many of them I say these things considered I cannot finde how the liberties of the Kingdome should proceed from our Kings but that they are the peoples in generall by right even as the Crowne or Ius Regnandi is the Kings by birthright yet admitting that some immunities or priviledges were granted by our Kings to some places and persons or to the Kingdome in generall may not the people or their feoffees in trust the Parliament make the best use of such Grants as well as Kings have made use of Grants from their Subjects And why should then the Kings Grants of priviledges or liberties if any such have been impeach the Subjects in generall or Parliament from doing what they may doe jure Regni for their generall good any more then the Subjects Grants to Kings should impeach them from doing what they may doe jure Regnandi for their owne good surely there can no reason be shewne so that for my part I conceive that Ordinances in nature as aforesaid have and ought to have the force and vigor of Law 1. And I intend now by way of reason to instance the generall benefit and liberty which the Subjects of England have by the Law or rather their Law I exclude not the King from any benefit thereof but only from power of violation The Law here in England to comprehend all speciall Lawes in one generall terme is as I conceive A rule admitted by common consent by which all men from the highest to the lowest according to their severall degrees are to regulate their actions to this both King and people have consented by this both King and people are preserved with this both King and people are united and as it were linked together This Law is the true Robur Britanicum whereof the common-Common-Law is the root and stock and the Statutes Acts and Ordinances of Parliament are the branches which at severall times upon severall occasions have spred themselves to solace the Subjects of this Kingdome under which they might in peace repose Now the Subjects of this Kingdom which live under this Law of common consent may be considered either as the Body essentiall and so all naturall or native persons of what degree soever in all Counties Cities and Towns corporate and wheresoever within the limits of this Kingdome are comprehended or else the Subjects of this Kingdome may be considered as the Body representative and so the Parliament is only intended consisting of Lords or Peers quasipares inter se and of Knights Citizens and Burgesses for the Counties Cities and Townes corporate These Knights Citizens and Burgesses are elected by the Democraticall body of Freeholders and such like of the people and doe represent or vices suas gerere if the people without confusion or disorder
could assemble together there were no need of such election so that these are the true Representative Body Democraticall of this Kingdome the Lords are in nature of a Body Aristocraticall and the King in form of a Monarch and these three viz. King Lords and Commons are in themselves so indifferently and exactly composed without excesse or defect ab origine that as soule and body make but one entire man so these three make but one entire power of government the which if defects or exorbitances should not or doe not distemper as diseases doe sometimes the soundest bodies is without any flattery or vain-glorious praise the most excellent known form of government in the world 2. This power aforesaid may enact any thing in beneficium Regni for the benefit of the Kingdome be it generall or speciall c. but this power in detrimentum libertatis aut proprietatis generalis subditerum Angliae cannot doe any thing not any thing I say to damnifie the generall liberty and propriety of the Subjects of England and the reason is becaus the English are subditi potius quam subjecti such as have rather put themselves under a law by common consent then enforced to undergoe a Law Wherefore I conceive the L. Digby to be greatly mistaken who affirmed that a King of England ensphered in his Parliament was as absolute as any Monarch of the East some Monarchs of the East can command to strangle one and he is strangled and to deprive another of his goods or estate and he is deprived and this they can doe ad placitum without shewing any cause but the King and Parliament in England cannot doe so those Monarchs can and some of them have and doe make Lawes that all their subjects estates shall be at their owne disposalls viz. that The Parliament by imposing Subsidies and the like do not dispose of the Subjects estates in generall ad placitum but only apply equally so much of every mans estate as seems convenient in necessitatem Regni c. the necessity of the Kingdome and such like they may take from whom they please what they please all if they please ad placitum but in England the King and Parliament cannot doe so for the King as aforesaid is but in nature of high Steward of the Kingdome by inheritance and the Parliament seoffees in Trust and both tyed by the great Indenture of Magna Charta to conserve the generall liberty and propriety of the people And it is to be noted that since Magna Charta was confirmed which upon the matter is but an Abridgement or Epitome of the liberties and rights of the Subjects of England before the conquest which liberties and rights are grounded upon the Law of God and naturall reason when any King of England would have extraordinary supplies from the people that the Parliament being conveened the King hath given or shewne some probable or seeming reasons why he desired or had need of such supplies and the Members of Parliament I meane those of the House of Commons at their returne to the places which intrusted them have likewise shewne or manifested some generall reasons or causes to the people why such extraordinary supplies were by them granted And surely were there now an account taken and given of the extraordinary and vast supplies levied on the estates of the people it would give a great satisfaction so that neither King or Parliament did at any time take ad placitum but ad necessitatem nor did the people otherwise grant any extraordinary supplies of mony 3. But some it may be will object and say suppose the King and Parliament should make an act that they would might dispose of all the Subjects estates in England themselves excepted or not excepted and consequently that they might take from whom they please what they please all if they please ad placitum what remedy might the Subjects have I answer that for my part I suppose it almost impossible that the King and Parliament should doe such a thing but admitting of a kinde of impossible possibility I answer further that in such case the Counties Cities and Townes corporate might and ought first to petition against so great an injury and if not remedied then they might declare and protest against such an act if violated then they might defend themselves by Armes for if the Representative Body of the Kingdome may in the behalfe of the Kingdome raise Arms for the defence of themselves and the Kingdome may not the essentiall is not the cause more noble then the effect in that it gives being to the effect doe not the Counties Cities and Townes corporate give being or a well-being to the Knights Citizens and Burgesses by intrusting their power Iudiciall to them And yet by reposing or granting such Trust they doe not disinvest themselves of their right naturall no more then one that passeth an estate to feoffees in Trust for some causes and considerations disinvesteth himself of the use intended or reserved so that they may defend their liberties and proprieties even by law of Nature which no speciall or Nationall Lawes can nullifie unlesse men will become or be made slaves and lose the right of Nature And besides it is an Axiom Politicall ubi nulla protectio ibi nulla subjectio if therefore the King or Parliament or King and Parliament should make an Act that they might dispose of all Subjects estates ad placitum as aforesaid deficiunt â protectione they faile or fall from the protection of the people and then the people may deficere â subjectione and protect themselves their liberties and proprieties even by Law Politicall 4. But some will farther object that it may be that the Counties Cities and Townes corporate doe intrust all their power both Iudiciall and Naturall fully and wholly as it were to the Knights Citizens and Burgesses at their election promising and covenanting to stand to all that they shall doe in Parliament c. And they will it may be object and say moreover that the King and Parliament are the Legislative power in England and that they may as well make a Law to dispose of all Subjects estates in England ad placitum c. as they have made and can make Lawes concerning Religion and the like I answer that albeit the Counties Cities and Townes corporate doe intrust their power Iudiciall not naturall to the Knights Citizens and Burgesses and promise to stand to what they shall doe yet they intrust it in beneficium Regni nonperniciem that is the proper and adequate object and end of their trust and they promise to stand to what they shall doe in matters disputable whether Religion is a matter disputable they be Actuall or de facto or Potentiall wherein the Kingdom may be either benefited or damnified and of such things the people make them their Judges but not in matters indisputable wherein without any dispute the Kingdome would be wholly damnified and
conquest which albeit that barely of it selfe it created not a just Title yet joyned with the consent of the Nation it Conquest without speciall warrant froÌ„ God as had the Israelites against the people of Canaan or without a just Nâ—tionall Tiâ— is unjust â—â—cause it is â— compained â— with two grâ—si is pride aâ— covetousneâ— and is direcâ— opposite to â— Law of natuâ— in that it depriveth otheâ— men of theiâ— liberty and propriety did and to signifie the Kings introduction by conquest the words â conquestu are to this day inserted in all Fines The King hath his jus Regnandi Dei non populi gratiâ and so hath the King of Poland although he be elective his jus Regnamdi Dei gratiâ but not without but by consent of his Nobility in England it is our Kings by birthright neither Nobility or people can or ought to deprive him of it as long as he protecteth them according to the Lawes and conserveth them to the utmost of his power from forraigne slavery or subjection And as Ius Regnandi is the Kings in England so Ius Regni Actuals Potentiale is the peoples in generall that is to say the people in their severall Degrees have right to their Lawes in Beeing and by their Feoffees the Knights Citizens and Burgesses whom they intrust to give their consents they have also right to the Lawes in Posse or to be the King cannot nor ought to nullifie the Law or Lawes at his pleasure for as in a Lordship or Mannor the Law of Right of inheriting belongeth to the Lord his heires and successors of which Right of inheriting the Tenants of a Mannor cannot nor ought not to deprive the Lord his lawfull heires and successors and also in the same Lordship or Mannor the Law or right of customes belongeth to the Tenants their heires or successors of which right of customes the Lord cannot nor ought to deprive the Tenants their heires or successors even so is it or ought to be in this Kingdome of England between the King and the people in generall 3. And having said that Ius Regnandi is the Kings I will first briefly insert what Ius Regnandi comprehends it comprehends a power ordinary and extraordinary both limited and qualified neither absolute and this last some call Prerogative The ordinary power of a King of England is to convene or assemble Parliaments and to ratifie or disanull what they shall generally approve or disaprove of for the good of the Kingdome or any essentiall part or member thereof for as a Body politick the King is obliged in foro conscientia to doe any thing for the good of the Kingdome provided that it destroy not his owne right The ordinary power also of a King of England is to nominate and constitute Judges and Civill Magistrates Commanders and Officers Military provided that such as concerne the Publicke be not generally disliked by the Publicke because although it belongs to the King to appoint who shall sustaine his person or vices suas gerere yet for as much as those persons doe meddle with and are conversant about the affaires of the Kingdome more then of the King if Kingdome or Publick therefore dislike them the King ought in fore conscientiae to displace them and appoint such as they may like of It is in the Kings ordinary power also to confer dignities and to dispose of those things that meerly concerne his owne Interest I say meerly because the Crowne is the Kings Interest but not meerly his interest he is owner of it but for his naturall life neither can he dispose of it The King hath relation to the Crowne but for his naturall life and then cedit alii The extraordinary or Prerogative power of a King of England I define thus Est virtus sive potentia in personâ Regiá benefaciendi sibi populo in quibus leges non sufficienter se extensas habent a power residing â—xi extensas â—â leges se â—per intenâ— ad summuÌ„â—ctum cui â—dinantur haâ—nt etsi nâ—n â—per dicunt â—dum illius â—ensionis or beeing in a King whereby he may doe good to himselfe and people in things wherein the Lawes doe not sufficiently extend and this power may be said to be intra legem sed non delege this power is environed by the Law and hath the same end that the Law hath viz. the good of King and people from this power extraordinary it follows that if a sudden invasion should be before a Parliament could be conveened or assembled a thing not very likely the King for the raising of forces for defence might impose taxes upon his Subjects such as were usually imposed upon them by consent of former Parliaments in such like cases and for the doing or accomplishing thereof hee may issue forth his Proclamations sufficiently strengthned with penall injunctions But he ought forthwith to call or assemble a Parliament because the Publicke is involved as much or more then himselfe and that being assembled not to do any thing without their consent for to speake truly a King of England is but in nature of an high Steward of the Kingdome by inheritance By this extraordinary power also a King may in some cases pardon as they call it or rather suspend or exempt the penalties due to convicted or condemned felons or traytors for the Law only provides punishment due to such offenders but the King may exempt the punishment where the parties vertues or deserts have formerly countervailed his misdeeds or otherwise where there is hope and possibility that he may by his good endeavours benefit the King and Country as much as he hath dampnified them for these causes ought to be the end of exempting from punishment delinquents for matters or crimes of an high nature and in such things as these consists the Kings extraordinary power or Prerogative 4. Yet there is one thing greatly insisted upon and affirmed by some to be a most essentiall part of the Kings Prerogative and that is the Kings negative voice in Parliament for my part I must confesse that I could never be otherwise satisfied but that all Statutes or Acts of Parliament here in England were made by consent of our Kings or Queens and that the said Statutes or Acts doe themselves either explicitly or implicitly demonstrate as much for if it be not inserted in any Act or Statute Be it therefore enacted by the Kings or Queens most excellent Majesty with assent of the Lords and Commons c. then is it dictated be it therefore enacted by Authority of this present Parliament c. wherein the King is comprehended as the head or chiefe of his Parliament without whose consent it seems such Acts had not beene in their full force and vertue not withstanding I do not see that because the Kings consent doth give force or vertue to an Act or Statute that therefore his non-consent or negative voice is a most essentiall part of his
enslaved and deprived of its naturall right as in the King and Parliament having a power to dispose of all mens estates ad placitum as aforesaid of such things they make them no Judges and the word Represent inferres as much for to represent or alterius vices gerere doth not import as some would have it to be an absolute Iudge or Vmpire in all things for then he doth not represent or vices gerere but is absolute and independent but in some things moreover the writ whereby the Parliament is conveened declares that they are not called together de omnibus sed de quibusdam arduis Rebus negotiis regentibus c. some things need not Parliament Assemblies to determine of them but only to conserve them from violation as the generall and fundamentall liberty and propriety of the subject c. and as concerning that the King and Parliament are the Legislative power in England I grant that they are in things disputable as aforesaid but not in things indisputable such as is the generall and fundamentall liberty and propriety of the Subject grounded upon the Law of Nature c. concerning their lives and estates as formerly mentioned 1. And now to satisfie such who by mis-interpreting some places or texts of Scripture suppose it most unlawfull and heynous for a Nation or People to defend by Armes against a naturall or rather Nationall power whether Potentate or Potency it makes no matter their Lawes and liberties if violated I have thought good to discusse and resolve some of their chiefest Allegations and first that of the 13. to the Romans Let every soule be subject to the higher power for there is no power but of God c. Concerning which Text I say that every soule ought to be subject to the higher power so far forth as that power doth lawfully extend for God commandeth no unlawfull thing either by divine Law or by Law of Nature or by Law of Nations Power by Divine Law is that which hath extraordinary or speciall appointment by God as I have already instanced in the beginning that of Nature is grounded upon common principles of reason that of Nations upon prudent and politicall reasons and considerations Now to this last Power subjection may bee due more or lesse for some Nations have agreed and covenanted as it were to be slaves as the Persians Muscovites Turkes c. others have made a better bargaine for themselves in matters of subjection as the English Aragonez c. Now when the Apostle saies Let every soule be subject to the higher power c. he intends not that such as were lesse subject should make themselves slavish by undergoing any kind of needlesse or enforced subjection but only that they should be so far forth subject as God had made or caused them to be subject And the Apostle infers as much in the same Chapter v. 7. Render therefore to all their dues tribute to whom tribute custome to whom custome feare to whom feare honour to whom honour he doth not say Render more then is due if it be exacted Moreover the Apostle in the words Let every soule be subject c. induces a generall cause of obedience not a speciall or in some cases for suppose the Apostle had said Spare or be mercifull to all men for there is no man but he is of God or the Image of God this had not prohibited but it might have been lawfull to punish malefactors so when the Apostle saies Let every soul be subject to the higher power for there is no power but of God c. This hinders not but that it may bee lawfull to oppose Tyrants usurpers and such like And when the Apostle saies farther for whosoever resisteth the power resisteth the ordinance of God c. it must surely be understood of power one way or other lawfull as the 3. v. in the same Chapter and the verses following shew for if otherwise the enslaved or oppressed people may free themselves if they finde convenient occasion from their bondage without any speciall warrant from God as did the petty Kings and people of Sodome and Gomorah who were enslaved or made Tributaries Gen. 14. yet their leavying War or Rebellion was not reprehended but rather countenanced by the high Priest in the time of the Law of Nature and the usurping Tyrants of the Nations called enemies of just Abraham their assistant who surely would not have aided or rescued his brother and the rest of his brothers friends without some speciall warrant from God whereof we read of none if their leavying of War or Rebellion to free themselves from bondage had been unjust but indeed the Law of Nature dictated their War to be just 2. Another Allegation greatly insisted upon albeit I see no great reason for it to prohibit Subjects to take Arms in any case of Tyrany and oppression against a Nationall Potentate is the Text Matth. 22. v. 21. Render therefore to Caesar the things which are Caesars and to God the things which are Gods whereby some would conclude that all temporall estates of Subjects are Caesars or of such like as Caesar and that therefore if Caesar should and would demand men to surrender all their estates into his hands they ought to doe it or otherwise if he should by violence take it they ought to permit him and no way to resist him but I answer to such that there is in those words not only a distinction of things spirituall and temporall Gods and Caesars but also a limitation of things temporall for it is not said Render all your mony or substance to Caesar but the things which are Caesars so much as is due to him his tribute mony and such like It may be some Critick will object and say that it is also said And to God the things that are Gods and that therefore according to this interpretation God may seem also to be limited not so for where the Text will admit of limitation as aforesaid there it ought to be admitted but where it will not without incongruity there it ought not to be admitted when we have done all what we can do in respect of Gods service we are but unprofitable servants we cannot punctually performe our duties but we may give or Render too much to Caesar or Caesars â—e renâ—â—â—â—ore â— is Potentates or Potencies unlesse they make it appeare that what we Render is for our good as well as for theirs 3. Some there are also who alleadge the 1 of Peter 2. 13. Submit your selves to every ordinance of man for the Lords sake whether it be to the King as supreme c. and hence they would infer that all Acts or Ordinances of Kings ought to be obeyed or otherwise undergone and suffered they must not be resisted But surely Acts 4. v. 19. and also 5. v. 19. in things touching God their Ordinances ought not to be obeyed if opposite to the Ordinances of God and for Ordinances of man