expelled the British into Wales Rather I conceive the Originall of the subjects libertie was by those our fore-fathers brought out of Germany Where as Tacitus reports Tacit. de Morib German Sect. 3. 5. nec Regibus infinita aut libera potestas Their Kings had no absolute but limited power and all weighty matters were dispatched by generall meetings of all the Estates Who sees not here the antiquity of our Liberties and frame of Government so they were governed in Germany and so here to this day for by transplanting themselves they changed their soyl not their manners and Government Then that of the Danes was indeed a violent Conquest and as all violent rules it lasted not long when the English expelled them they recovered their Countrey and Liberties together Thus it is clear the English Libertie remained to them till the Norman Invasion notwithstanding that Danish interruption Now for Duke William I know nothing they have in him but the bare stile of Conqueror which seems to make for them The very truth is and everie intelligent reader of the Historie of those times will attest it that Duke William pretended the grant and gift of King Edward who died without children and he came with forces into this Kingdome not to Conquer but make good his Title against his enemies his end of entring the Land was not to gaine a new absolute Title but to vindicate the old limited one whereby the English Saxon Kings his Predecessors held this Kingdome Though his Title was not so good as it should be Cambâ—â—n Britan. Normaâ— yet it was better then Harolds who was onely the Sonne of Goodwyn Steward of King Edwards house Whereas William was Cousen to Emma mother to the said King Edward by whom he was adopted and by solemne promise of King Edward was to succeed him Of which promise Harold himselfe became surety and bound by oath to see it performed Here was a faire Title especially Edgar Atheling the right Heire being of tender age and dis-affected by the people Neither did he proceed to a full Conquest but after Harola who usurped the Crown was slain in battle and none to succeed him the Throne being void the people chose rather to submit to William and his Title then endure the hazzard of ruining war by opposing him to set up a new King It is not to be imagined that such a Realme as England could be conquered by so few in such a space if the peoples voluntary acceptance of him and his claime had not facilitated and shortned his undertaking Thus we have it related in Mr. Cambdâ—n that before Harold usurped the Crown most men thought it the wisest Policie to set the Crown on Williams head that by performing the Oath and promise a Warre might be prevented And that Harold by assuming the Crown provoked the whole Clergy and Ecclesiasticall State against him and we know how potent in those daies the Clergy were in State affaires Also that after one battle fought wherein Harold was slain he went to London was received by the Londoners and solemnly inaugurated King as unto whom by his own saying the Kingdome was by Gods Providence appointed and by vertue of a gift from his Lord and Cousen King Edward the glorious granted so that after that battell the remainder of the war was dispatched by English forces and Leaders But suppose he did come in a Conqueror yet he did not establish the Kingdome on those termes but on the old Lawes which he reteyned and authorized for himselfe and his Successors to governe by Indeed after his settlement in the Kingdome some Norman Customes he brought in and to gratify his souldiers dispossessed many English of their estates dealing in it too much like a Conqueror but the triall by twelve men and other fundamentalls of Government wherein the English freedome consists he left untouched which have remained till this day On the same Title he claimed and was inaugurated was he King which was a title of rightfull succession to Edward therfore he was indeed King not as Conqueror but as Edwards Successor and on the same right as he and his Predecessors held the Crowne As also by the grant of the former Lawes and forme of Government he did equivalently put himselfe and successors into the State of legall Monarchs and in that Tenure have all the Kings of this Land held the Crown till this day when these men would rake up and put a Title of Conquest upon them which never was claimed or made use of by him who is the first root of their succession Another reason which they produce is the successive nature Sect. 4 of this Monarchy for with them to be elective and limited and to be successive and absolute are equipollent They conceive it impossible that a Government should be Hereditary and not absolute But I have enough made it appear Part 1. Chap. 2. Sect. 6. That succession doth not prove a Monarchie absolute from limitation though it proves it absolution from interruption and discontinuance during the being of that succession to which it is defined And that which they object that our Kings are actually so before they take the Oath of governing by Law and so they would be did they never take that Oath wherefore it is no Limitation of their royall power is there also answered in the next Sect. and that so fully that no more need be said The same Law which gives the King his Crown immediatly upon the decease of his Predecessor conveyes it to him with the same Determinations and Prerogatives annexed with which his Progeintors enjoyed it so that he entring on that Originall Right his subjects are bound to yeild obedience before they take any Oath And he is bound to the Lawes of the Monarchy before he actually renewes the bond by any Personall Oath There is yet another argument usually brought to this purpose taken from the Oath of Allegiance but of that I shall have occasion to speake hereafter CHAP. II. Supposing it be in the Platforme limited Quest 2. Wherein and how far forth it is limited and defined Pos 1 I Conceive it fundamentally limited in five particulars First in the whole latitude of the Nomotheticall power so that their power extends not to establish any Act which hath the Being and state of a Law of the Land nor give an authenticke sense to any Law of doubtfull and controverted meaning solely and by themselves but together with the concurrent Authority of the two other Estates in Parliament Pos 2 Secondly in the Governing Power there is a confinement to the Fundamentall Common Lawes and to the superstructive Statute Lawes by the former concurrence of Powers enacted as to the Rule of all their Acts and Executions Pos 3 Thirdly in the power of constituting Officers and meanes of governing not in the choice of Persons for that is intrusted to his Judgement for ought I know but in the constitution of Courts of Judicature For as
against his Majesty they impute nothing to Him nor use force against Him but those destructive Counsellours and their Abbettors which are about Him because their danger is not from His intentions but from theirs It is answered that His Majesty offers to secure them the Lawes Liberties and Religion by any Acts they shall devise to that purpose Parliam Remonstrance May 19. 1642 They will tell you Their danger is not from want of Laws to secure them for they are secured by Law already their danger is from Men and their Plots and Designes to overthrow Law and a danger of subversion of Law cannot bee secured by Law succeeding Lawes can be no better nor stronger then former Lawes so that where those men and their counsels are in power whose aime hath been the subversion of Parliaments Liberties and Lawes and those Doctrines remaine affirmed and maintained by the Clergie of that side which subvert all limitations of Monarchy make all Lawes Acts of grace and revocable Immunities granted to Subjects condemning for Rebellion all force used even by the Parliament it selfe against the meanest Instruments of violence employed by the Princes Will making the Princes Will and Gods Ordinance one and the same thing of the same latitude so that resistence of one is resistence of the other such Counsellours and such Doctrines are they say the ground of publike danger from which no Lawes but Justice can secure us Publike Liberty and Power of forcible resistence of Instruments of servitude are so conjoyned that if you make it unlawfull simply to use such power of resistence you make it unlawfull for a People to be free What course then can be sufficient to answere their Demands Sect. 3 of safety if Lawes cannot doe it Meanes of reconcilement proposed Though I incurre the censure of high Presumption yet I will be so bold to afford my opinion herein submitting it to the censure of every Judicious Reader wishing it were worthy to be scanned by those in whose hands it is to heale our divisions What honest heart doth not bleed to see the ruine of this late flourishing Kingdome goe on so fast Who can doe other then speake his minde who conceives hee thinkes of any thing which may conduce to Peace and the re-uniting of this divided Body Suffer mee therefore to disclose my heart in a case in which every good man hath a deep interest Thus then I could heartily desire Petit. 1 First that the Parliament would desire and seeke in this unusuall way of Force no more then what makes necessarily for their and the publike security for none can justifie force in them any further then for security of their Priviledges Lawes and frame of Government Petit. 2 Answ to the Petition of Commons Ian. 28. 1641. Secondly that His Majesty would be pleased according to his gracious Resolution viz. To deny onely those things the granting whereof would alter the Fundamentall Lawes and endanger the foundation on which publike happinesse is built to condescend to all Acts of safety both by establishing of Lawes tending to it and removall of Persons of destructive counsells and Judgements because the danger alledged is from such Petit. 3 Thirdly that because their maine feare hath been that while his Majesty is swayed by such Persons whose Judgement and endevours have been for Absolutenesse the Militia of the Kingdome may be by them making use of his Majesties Authority employed in bringing to passe their long fomented and not yet deserted designe His Majesty would be pleased for this present to authorize such over the Militia whom the Houses shall approve of not thereby disparaging his power over the Militia which by Law is invested in him but satisfying by a condescent of grace their Feares from apprehensions of present danger Petit. 4 Fourthly that the two Houses in their wisedom would put a difference between those Persons who were the ancient Dâ—linquents Contrivers and principall Agents in the former designes of Arbitrarinesse and those Members of both Houses who since the Kings with-drawment and their assuming the Militia have gone from the Houses to serve and adhere to his Majesty For since the time that both parts have declared themselves to be in danger many good subjects and Patriots have followed the parts from conscience and perswasion of the truth of Allegations on either side as their care and opinion of either Part hath lead them not that I can acquit them who on any mis-leading assist the destructive party from guilt as Accessaries and Instruments of so unnaturall a designe but that I cannot see how the authority and freedome of either of the three Estates can choose but undergoe a shew of disparagement if its adherents and propugners when it cries out of danger of subversion from the other and calls and requires their assistance should be proceeded against and punished as Delinquents when they professe their aime hath beene no more then to preserve the just rights of any of the fundamentall Estates of the Kingdom without impairment of the other Fifthly that if possible all those might be re-admitted into Petit. 5 their severall Houses which are not guilty of the former designes for Absolutenesse and have nothing alledged against them but their adherence to the King in this division and might fit and act securely there according to the due freedome of their Houses Sixthly that his Majesty for the sake of Peace and present Petit. 6 necessity of composing this distemperature would be pleased to put himselfe upon the Judgment and Affection of the two Estates so assembled in their full Bodies and suspend the use of his Negative voice resolving to give his royall assent to what shall passe by the major part of both Houses freely voting concerning all matters of grievance and difference now depending in the two Houses I am confident if ever this War be transacted without the ruine of one side which will endanger if not undoe the whole it must be by some such way of remission of rigour on both sides as I have now described Which the God of Peace in whose hands are the hearts and counsels of men speedily and graciously effect for his Name sake FINIS
in my apprehension the end of Magistracie is the good of the whole Body Head and Members conjunctly but if we speak divisim then the good of the Society is the Ultime end and next to that as conducent to that the Governours Greatnes and Prerogative And herein also accordeth Dr. Fern with us Sect. 3. Where he sayes That the people are the end of the governing Power There is another question of mainer concernment here in our generall discourse of Authority fitly to be handled viz. How farre subjection is due to it but because it hath a great dependance on the kinds and States of Power and cannot be so well conceived without the Precognition thereof I will referre it to after opportunities For the division of this Power of Magistracie It cannot Sect. 3 be well divided into several species Division of Magistracie for it is one simple thing an indivisible bcame of Divine Perfection yet for our more distinct conceaving thereof Men have framed severall distinctions of it So with respect of its measure it is absolute or limited In respect of its manner It is as St. Peter divides it Supreame or Subordinate In respect of its Meane of acquiring it is Elective or successive for I conceive that of Conquest and Prescription of usuage are reducible to one of these as will appeare afterwards In respect of its degrees it is Nomotheticall or Architectonicall and Gubernative or Executive And in respect of the subject of its residence there is an ancient and usuall distinction of it into Monarchicall Aristocraticall and Democraticall These either simple or mixt of two or all three together of which the Predominant gives the denomination These are not accurate specificative Divisions of Power for it admits none such but partitions of it according to divers respects The course of my intention directs me to speak only of Monarchicall Power which is the chiefe and most usuall forme of Government in the world The other two being apt to resolve into this but this not so apt to dissolve into them CHAP. II. Of the Division of Monarchy into absolute and limited Sect. 1 NOW we must know that most of those distinctions which were applyed to Power in generall are appliable to Monarchy because the respects on which they arise are to be found in it But I will insist on the three main divisions for the handling of them will bring us to a cleare understanding of what is needfull to be known about Monarchicall Power First of the distinction of Monarchy into Absolute and Limited Absolute Monarchy is when the Soveraignty is so fully in one that it hath no Limits or Bounds under God but his owne Will It is when a people are absolutely resigned up or resigne up themselves to be governed by the will of one man Such were the ancient Easterne Monarchies and that of the Persian and Turke at this day as farre as we know This is a lawfull Government and therefore where men put themselves into this utmost degree of subjection by Oath and Contract Whether absolute Monarchy be a lawfull government or are borne and brought unto it by Gods Providence it binds them and they must abide it because an Oath to a lawfull thing is Obligatory This in Scripture is very evident as Ezek. 17 16.18.19 Where Iudgement is denounced against the King of Iudah for breaking the Oath made to the King of Babylon and it is called Gods Oath yet doubtles this was an Oath of absolute subjection And Rom. 13. the power which then was was absolute yet the Apostle not excluding it calls it Gods ordinance and commands subjection to it so Christ commands tribute to be paid and payes it himselfe yet it was an arbitrary taxe the production of an absolute power Also the soveraignty of masters over servants was absolute and the same in Oeconomy as absolute Monarchy is in policie yet the Apostle enjoynes not masters called to Christianity to renounce that title as too great and rigid to be kept but exhorts them to moderation in the exercise of it and servants to remaine contented in the condition of their servitude More might be said to legitimate this kinde of governement but it needs not in so plaine a case This absolute Monarchy hath three degrees yet all within Sect. 2 the state of absolutenesse The first when the Monarch Three degrees of absolutenesse whose will is the peoples Law doth set himselfe no stated Rule or Law to rule by but by immediate Edicts and commands of his owne will governes them as in his owne and Councels judgement he thinks fit Secondly when he sets downe a Rule and Law by which he will ordinarily govern reserving to himselfe liberty to vary from it wherein and as oft as in his discretion he judges fit and in this the Soveraigne is as free as the former onely the people are at a more certainty what he expects from them in ordinary Thirdly when he not onely sets downe an expresse Rule and Law to governe by but also promiseth and engages himself in many cases not to alter that rule but this engagement is an after condescent and act of grace not dissolving the absolute oath of subiection which went before it nor is intended to be the rule of his power but of the exercise of it This Ruler is not so absolute as the former in the use of his power for he hath put a bond on that which he cannot breake without breach of promise that is without sin but he is as absolute in his power if he will sinfully put it forth into act it hath no politick bounds for the people still owe him absolute subiection that not being dissolved or lessened by an act of grace comming afterwards Sect. 3 Now in governments of this nature How far obedience is due Whether resistance be lawfull in absolute Monarchy and Whether any resistance be lawfull is a question which here must be decided For the due effecting whereof we must premise some needfull distinctions to avoid confusion Obedience is twofold first Positive and active when in conscience of an authority we doe the thing commanded secondly Negative and passive when though we answer not Authority by doing yet we doe it by contented undergoing the penalty imposed Proportionably resistance is twofold first Positive by an opposing of force secondly Negative when onely so much is done as may defend our selves from force without returne of force against the Assailant Now this negative resistance is also twofold first In inferiour and sufferable cases secondly or in the supreme case and last necessity of life and death and then too it is first either of particular person or persons secondly or of the whole community And if of particular persons then either under plea and pretence of equity assaulted or else without any plea at all meerly for will and pleasure sake for to that degree of rage and cruelty sometimes the heart of man is given over
All these are very distinguishable cases and will be of use either in this or the ensuing disputes Assert 1 To the question I say First Positive obedience is absolutely due to the will and pleasure of an absolute Monarch in all lawfull and indifferent things because in such a State the will of the Prince is the supreme Law so that it binds to obedience in every thing not prohibited by a superiour that is Divine Law for it is in such case the higher power and is Gods ordinance Assert 2 Secondly When the will of an absolute Monarch commands a thing forbidden to be done by Gods Law then it bindes not to active obedience then is the Apostles rule undoubtedly true It is better to obey God then men For the Law of the inferiour gives place to the superiour In things defined by God it should be all one with us for the Magistrate to command us to transgresse that as to command us an impossibility and impossibilities fall under no Law But on this ground no man must quarrell with Authoritie or reject its commands as unlawfull unlesse there be an open unlawfulnesse in the face of the act commanded For if the unlawfulnesse be hidden in the ground or reason of the action inferiours must not be curious to enquire into the grounds or reasons of the commands of superiours for such licence of enquiry would often frustrate great undertakings which much depend on speed and secrecy of execution I speak all this of absolute government where the will and reason of the Monarch is made the higher power and its expression the supreme Law of a State Thirdly suppose an absolute Monarch should so degenerate Assert 3 into Monstrous unnaturall Tyranny as apparently to seeke the destruction of the whole community subject to him in the lowest degree of vassallage then such a community may negatively resist such subversion yea and if constrained to it by the last necessity positively resist and defend themselves by force against any instruments whatsoever imployed for the effecting thereof 1. David did so in his particular case when pursued by Saul he made negative resistence by flight and doubtlesse he intended positive resistence against any instrument if the negative would not have served the turne else why did he so strengthen himselfe by Forces sure not to make positive resistance and lay violent hands upon the Person of the Lords Anointed as it appeared yet for some reason he did it doubtlesse which could be none other but by that force of Armes to defend himselfe against the violence of any mis-imployed inferiour hands If then he might doe it for his particular safety much rather may it be done for the publike 2. Such an act is without the compasse of any the most absolute Potentate and therefore to resist in it can be to resist no power nor the violation of any due of subjection For first the most submisse subjection ever intended by any community when they put themselves under anothers power was the command of a reasonable will and power but to will and command the destruction of the whole body over which a power is placed were an act of will most unreasonable and self-destructive and so not the act of such a will to which subjection was intended by any reasonable creatures Secondly the publike good and being is armed at in the utmost bond of subjection for in the constitution of such unlimited soveraignty though every particular mans good and being is subjected to the will of One supreme yet certainly the conservation of the whole Publike was intended by it which being invaded the intent of the constitution is overthrowne and an act is done which can be supposed to be within the compasse of no politicall power So that did Nero as it was reported of him in his immanity thirst for the destruction of whole Rome and if he were truly what the Senate pronounced him to be Humani generis hostis then it might justifie a negative resistance of his person and a positive of any Agent should be set on so inhumane a service And the united Provinces are allowed in resisting Philip 2d. though he had bin their absolute Monarch if he resolved the extirpation of the whole people and the planting the countrey with Spaniards as it is reported he did And that assertion of some that All resistance is against the Apostles prohibition Resistance by power of Armes is utterly unlawfull cannot be justified in such a latitude But of this more will be spoken in the current of this discourse Assert 4 Fourthly suppose by such a power any particular person or persons life be invaded without any plea of reason or cause for it I suppose it hard to deny him liberty of negative resistance of power yea and positive of any Agents in such assault of murther for though the case be not so cleare as the former yet it seemes to me justified by the fact of David and the rescuing of Jonathan from the causlesse cruell intent of his Fathers putting him to death As also such an act of will carrying no colour of reason with it cannot be esteemed the act of a rationall will and so no will intended to be the Law of Soveraignty Not that I thinke a Monarch of such absolutenesse is bound to yeeld a reason why he commands any man to be put to death before his command be obeyed but I conceive the person so commanded to death may bee justified before God and men for protecting himselfe by escape or otherwise unlesse some reason or cause bee made knowne to him of such command Fifthly Persons subject to an unlimited dominion must Assert 5 without resistance subject their Estates Liberties Persons to the will and pleasure of their Lord so it carry any plea or shew of reason and equity First it seemes to me evident 1 Pet. 2.18 19 20. if well doing be mistaken by the reason and judgement of the power for ill doing and we be punished for it yet the Magistrate going according to his misguided reason it is the command of a reasonable will and so to be submitted to because such a one suffers by Law in a State where the Lords will is the Law Secondly In commands of the power where is the plea of reason and equity on the part of the commander whether it be such indeed some power must judge but the constitution of absolute Monarchy resolves all judgement into the will of the Monarch as the supreme Law so that if his will judicially censure it just it must be yeelded to as if it were just without repeale or redressement by any created power And let none complaine of this as a hard condition when they or their Ancestors have subjected themselves to such a power by oath or politicall contract If it be Gods ordinance to such it must be subjected to and its exorbitances born as he sayes in Tacâ—tuâ—… as men beare famine pestilence and other effects of Gods displeasure
Sixthly in absolute Monarchy the person of the Monarch Assert 6 is above the reach of just force and positive resistance for such a full resignation of mens selves to his will and power by the irrevocable oath and bond of politicall contract doth make the person as sacred as the Unction of Saul or David In such a State all lawful power is below him so that he is uncapable of any penall hand which must be from a superiour or it is uniust I have bin the longer on this absolute Monarchy because though it doth not concerne us yet it will give light to the stating of doubts in governments of a more restrained nature for what is true here in the full extent of power is there also as true within the compasse of their power Sect. 4 In moderate or limited Monarchy it is an enquiry of some weight to know What makes a Monarchy limited What it is which constitutes it in the state of a limited Monarchy First A Monarchy may be stinted in the exercise of its Assert 1 power and yet be an absolute Monarchy as appeared before in our distinction of absolute Monarchy If that bounds be a subsequent act and proceeding from free will and grace in the Monarch for it is not the exercise but the nature and measure of power wherewith he is radically invested which denominates him a free or conditionate Monarch Assert 2 Secondly I take it that a limited Monarch must have his bounds of power ab externo not from the free determination of his owne will And now Kings have not divine words and binding Lawes to constitute them in their Soveraignty but derive it from ordinary providence the sole meane hereof is the consent and fundamentall contract of a Nation of men which consent puts them in their power which can be no more nor other then is conveyed to them by such contract of subiection This is the root of all soveraignty individuated and existent in this or that person or family till this come and lift him up he is a private man not differing in state from the rest of his brethren but then he becomes another man his person is sacred by that soveraignty conveyed to it which is Gods ordinance and image The truth hereof will be more fully discovered when we come to speake of Elective and Successive Monarchy Assert 3 Thirdly He is then a limited Monarch who hath a Law beside his owne will for the measure of his power First the supreme power of the State must be in him so that his power must not be limited by any power above his for then hee were not a Monarch but a subordinate magistrate Secondly this supreme power must be restrained by some Law according to which this power was given and by direction of which this power must act else he were not a limited Monarch that is a liege Soveraigne or legall King Now a Soveraignty comes thus to be legall or defined to a rule of Law either by originall constitution or by after-condescent By originall constitution when the society publike conferres on one man a power by limited contract resigning themselves to his government by such a Law reserving to themselves such immunities In this case they which at first had power over themselves had power to set their owne termes of subiection and hee which hath no title of power over them but by their act can de jure have no greater then what is put over to him by that act By after-condescent viz. when a Lord who by conquest or other right hath an absolute arbitrary power but not liking to hold by such a right doth either formally or virtually desert it and take a new legall right as judging it more safe for him to hold by and desirable of the people to be governed by This is equivalent to that by originall constitution yea is all one with it for this is in that respect a secondary originall constitution But if it be objected that this being a voluntary condescent is an act of grace and so doth not derogate from his former absolutenesse as was said before of an absolute Monarch who confines himselfe to governe by one rule I answer This differs essentially from that for there a free Lord of grace yeelds to rule by such a Law reserving the fulnesse of power and still requiring of the people a bond and oath of utmost indefinite subjection so that it amounts not to a limitation of radicall power whereas here is a change of title and a resolution to be subiected to in no other way then according to such a frame of government and accordingly no other bond or oath of allegeance is required or taken then according to such a Law this amounts to a limitation of radicall power And therefore they speak too generally who affirme of all acts of grace proceeding from Princes to people as if they did not limit absolutenesse 'T is true of acts of grace of that first kinde but yet you see an act of grace may be such a one as may amount to a resignation of that absolutenesse into a more milde and moderate power unlesse we should hold it out of the power of an absolute Lord to be other or that by free condescent and act of grace a man cannot as well part with or exchange his right and title to a thing as define himselfe in the use and exercise which I thinke none will affirme Sect. 5 In all Governments of this allay and legall Constitution there are three Questions of speciall moment to be considered How farre subiect oâ— is due in a limited Monarchy First How farre subjection is due As farre as they are Gods Ordinance as farre as they are a power and they are a power as farre as the Contract fundamentall from which under God their authority is derived doth extend As absolute Lords must be obeyed as farre as their Will enjoynes because their Will is the measure of their Power and their subjects Law so these in the utmost extent of the Law of the Land which is the measure of their power and their subjects duty of obedience I say so farre but I doe not say no further for I believe though on our former grounds it clearely followes that such Authority transcends its bounds if it command beyond the Law and the Subject legally is not bound to subjection in such case yet in Conscience a Subject is bound to yeeld to the Magistrate even when he cannot de jure challenge obedience to prevent scandall or any occasion of slighting the power which may sometimes grow even upon a just refusall I say for these causes a subject ought not to use his liberty but morem gerere if it be in a thing in which he can possibly without subversion and in which his act may not be made a leading case and so bring on a prescription against publique Liberty Sect. 6 How farre it is Lawfull to resist Secondly how farre
it is lawfull to resist the exorbitant Illegal Commands of such a Monarch 1. As before in lighter cases in which it may be done for the reasons alledged Pos 1 and for the sake of publique peace we ought to submit and make no resistance at all but de jure recedere Pos 2 2. In cases of higher nature Passive resistance viz. By appeale to Law by Concealment by Flight is lawfull to be made because such a Command is politically powerles it proceeds not from Gods Ordinance in him and so we sin not against Gods Ordinance in such Non-submission or Negative resistance 3. For Instruments or Agents in such commands if the Pos 3 streight be such and a man be surprized that no place is left for an appeale nor evasion by Negative resistance I conceive against such Positive resistence may be made because authority failing or this Act in the Supreame Power the Agent or Instrument can have none derived to him and so is but in the nature of a private person and his Act as an offer of private violence and so comes under the same rules for opposition 4. For the person of the Soveraigne I conceive it aswell Pos 4 above any Positive Resistence as the Person of an absolute Monarch Yea though by the whole Community except there be an expresse reservation of Power in the body of the State or any deputed Persons or Court to use in case of intolerable exorbitance Positive Resistence which if there be then such a Governour is no Monarch for that Fundamentall Reservation destroyes it's being a Monarchy in asmuch as the Supreame Power is not in one For where ever there is a Soveraigne Politique Power constituted the person or persons who are invested with it are Sacred and out of the reach of Positive Resistance or Violence which as I said if just must be from no inferior or subordinate hand But it will be objected that sith every Monarch hath his power from the consent of the whole body that consent of the whole Body hath a Power above the Power of the Monarch and so the resistance which is done by it is not by an inferior power and to this purpose is brought that Axiome Quicquia efficit tale est magis tale I answer That rule even in naturall causes is lyable to abundance of restrictions And in the particular in hand it holds not Where the cause doth bereave himselfe of that perfection by which it works in the very act of causing and convey it to that effect It doth not remain more such then the effect but much lesse and below it as if I convey an estate of Land to another it doth not hold that after such conveyance I have a better Estate remayning in me then that other but rather the contrary because what was in one is passed to the other The Servant who at the year of Iubile would not go out free but have his eare boared and given his Master a full Lordship over him can we argue that he had afterward more power over himselfe then his Master because he gave his Master that power over him by that act of Oeconomicall Contract Thus the Community whose consent establishes a Power over them cannot be said universally to have an eminencie of Power above that which they constitute sometimes they have sometimes they have not and to judge when they have when not respect must be had to the Origiginall Contract and Fundamentall Constitution of that State if they have constituted a Monarchy that is invested one man with the Soveraignty of Power and subjected all the rest to him Then it were unreasonable to say they yet have it in themselves Or have a power of recalling that Supremacie which by Oath and Contract they themselves transferred on another Unles we make this Oath and Contract lesse binding then private ones dissoluble at pleasure and so all Monarchs Tenants at will from their people But if they in such Constitution reserve a power in the body to oppose and displace the Magistrate for exorbitancies and reserve to themselves a Tribunall to trie him in that man is not a Monarch but the Officer and Substitute of him or them to whom such Power over him is reserved or conferred The Issue is this If he be a Monarch he hath the Apex or Culmen Potestatis and all his Subjects divisim and conjunction are below him They have devested themselves of all superiority and no Power left for a Positive Opposition of the Person of him whom they have invested Sect. 7 Thirdly Who shall be the Iudge of the Excesses of the Soveraigne Lord in Monarchies of this composure Who shall be the Iudge of the excesses of the Monarch I answer A frame of Government cannot be imagined of that perfection but that some inconveniencies there will be possible for which there can be provided no remedie Many miseries to which a people under an absolute Monarchie are lyable are prevented by this Legall Allay and definement of Power But this is exposed to one defect from which that is free that is an impossibility of constituting a Judge to determine this last controversie viz. the Soveraignes transgressing his fundamentall limits This Judge must be either some Forraigner and then â—…e lose the freedome of the State by subjecting it to an externall power in the greatest case or else within the body If so then 1. either the Monarch himselfe and then you destroy the frame of the State and make it absolute for to define a Power to a Law and then to make him Judge of his Deviations from that Law is to absolve him from all Law Or else 2. the Community and their Deputies must have this power and then as before you put the apex Potestatis the prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the whole body or a part of it and destroy the being of Monarchy The Ruler not being Gods immediate Minister but of that Power be it where it will to which he is accomptable for his actions So that I conceive in a limited legall Monarchy there can be no stated internall Judge of the Monarchs actions if there grow a fundamentall Variance betwixt him and the Community But you will say It is all one way to absolutenesse to assigne him no Judge as to make him his own Judge Answ I say not simplie in this case there is no Judge But that there can be no Judg legall and constituted within that frame of Government but it is a transcendent case beyond the provision of that Government and must have an extraordinary Judge and way of devision In this great and difficult case I will deliver my apprehensions freely and clearly submitting them to the censure of better Iudgements Suppose the controversie to happen in a Government fundamentally legall and the people no further subjected then to Government by such a Law 1. If the act in which the exorbitance and transgression Pos 1 is supposed to be be of lesser moment
and not striking at the very being of that Government it ought to be borne by publique patience rather then to endanger the being of the State by a contention betwixt the head and body Politique 2. If it be mortall and such as suffered dissolves the frame Pos 2 and life of the Government and publique liberty Then the illegality and destructive nature is to be set open and redresment sought by Petition which if failing Prevention by resistance ought to be But first that it is such must be made apparent and if it be apparent and an Appeale made ad conscientiam generis humani especially of those of that Community then the fundamentall Lawes of that Monarchy must iudge and pronounce the sentence in every mans conscience and every man as farre as concernes him must follow the evidence of Truth in his owne soule to oppose or not oppose according as he can in conscience acquit or condemne the act of carriage of the Governour For I conceive in a Case which transcends the frame and provision of the Government they are bound to People are unbound and in state as if they had no Government and the superiour Law of Reason and Conscience must be Judge wherein every one must proceed with the utmost advice and impartiality For if hee erre in iudgement hee either resists Gods Ordinance or puts his hand to the subversion of the State and Policy he lives in And this power of judging argues not a superiority in those who Judge over him who is Judged for it is not Authoritative and Civill but morall residing in reasonable Creatures and lawfull for them to execute because never devested and put off by any act in the constitution of a legall Government but rather the reservation of it intended For when they define the Superiour to a Law and constitute no Power to Judge of his Excesses from that Law it is evident they reserve to themselves not a Formall Authoritative Power but a morall Power such as they had originally before the Constitution of the Government which must needs remaine being not conveyed away in the Constitution CHAP. III. Of the division of Monarchy into Elective and Successive THe second division of Monarchy which I intend to Sect. 1 treat of is that of Elective or Successive Elective and successive Monarchy what they are Elective Monarchy is that where by the fundamentall constitution of the State the supreme power is conveyed but to the person of him whom they take for their Prince the people reserving to themselves power by men deputed by the same constitution to elect a new person on the decease of the former Successive is where by the fundamentall constitution of the State the Soveraignty is conferred on one Prince and in that one as a root and beginning to his heires after a forme and line of succession constituted also by the fundamentals of that Government In the first the Peoples oath and contract of subiection extends but to one person In the other to the whole Race and Line of Successors which continuing the bond of subjection continues or which failing the people returne to their first liberty of choosing a new person or succession to be invested with Soveraignty I doe conceive that in the first originall all Monarchy yea Sect. 2 any individuall frame of Government whatsoever All Monarchy whether originally from consent is elective that is is constituted and drawes its force and right from the consent and choice of that Community over which it swayeth And that triple distinction of Monarchy in o that which is gotten by Conquest Prescription or Choice is not of distinct parts unlesse by Choice be meant full and formall Choice my reason is because man being a voluntary agent and subiection being a morall act it doth essentially depend on consent so that a man may by force and extremity be brought under the power of another as unreasonable creatures are to be disposed of and trampled on whether they will or no But a bond of subjection cannot be put on him nor a right to claime Obedience and Service acquired unlesse a man become bound by some act of his owne Will For suppose another from whom I am originally free be stronger then I and so bring mee under his mercy doe I therefore sin if I doe not what he commands me or can that act of violence passe into a morall title without a morall principle Sect. 3 But this will be more manifest if by induction I shew how other titles resolve into this Monarchy by divine institution I will begin with that of divine institution Saul and David were by the Sacrament of anointing designed to the Kingdome as it were by Gods owne hand which notwithstanding they were not actually Kings till the Peoples consent established them therein That unction was a manifestation of the appointment of God and when it was made knowne to the People I thinke it had the power of Precept to restraine the Peoples choice to that person which if they had not done they had resisted Gods ordinance Yet they were not thereby actually endowed with Kingly power but remained as private men till the Peoples choice put them in actuall possession of that Power which in David was not till after many yeares Sect. 4 Then for that of Usuage or Prescription if any such did ever constitute a Monarchie Monarchy by prescription it was by vertue of an Universall consent by that Usuage and Prescription proved and implyed For in a Popular state where one Man in the Communitie by reason of great estate Wisdome or other Perfection is in the eye of all the rest all reverence him and his advice they follow and the respect continues from the People to the house and family for divers generations In this case subjection at first is arbitrary in the people and if in time it become necessary it is because their Custome is their Law and its long continuance is equivalent to a formall Election so that this Tenure and Right if it be good and more then at pleasure as it was at first the considerate must needs ascribe it to a consent and implicite choyce of the People But the mayn Question is concerning Monarchy archieved Sect. 5 by Conquest Monarchy by conquest where at first sight the Right seems gotten by the Sword without the consent and Choyce of the People yea against it Conquest is either 1. Totall where a full Conquest is made by a totall subduing a people to the Will of the Victor or 2. Partiall where an entrance is made by the Sword But the People either because of the Right claymed by the Invader or their unwillingnesse to suffer the Miseries of Warre or their apparent inability to stand out in a way of Resistance or some other consideration submit to a composition and contract of subjection to the Invader In this latter it is evident the Soveraignes Power is from the Peoples consent and
And that One is either individually one Person and then it is a simple Monarchy Or one associate Body chosen either out of the Nobility whence the Government is called a simple Aristocraty or out of the Community without respect of birth or state which is termed a simple Democracy The supreme authority residing exclusively in one of these three denominates the Government simple which ever it be Now experience teaching People that severall inconveniences are in each of these which is avoided by the other as aptnesse to Tyranny in simple Monarchy aptnesse to destructive Factions in an Aristocracy and aptnesse to Confusion and Tumult in a Democracy As on the contrary each of them hath some good which the others want viz. Unity and strength in a Monarchy Counsell and Wisedome in an Aristocracy Liberty and respect of Common good in a Democracy Hence the wisedome of men deeply seene in State matters guided them to frame a mixture of all three uniting them into one Forme that so the good of all might be enjoyed and the evill of them avoyded And this mixture is either equall when the highest command in a State by the first Constitution of it is equally seated in all three and then if firme Union can be in a mixture of Equality it can be called by the name of neither of them but by the generall stile of a Mixed State or if there be priority of Order in one of the three as I thinke there must be or else there can be no Unity it may take the name of that which hath the precedency But the firmer Union is where one of the three is predominant and in that regard gives the denomination to the whole So we call it a Mixed Monarchy where the primity of share in the supreme power is in one Now I conceive to the constituting of Mixed Monarchy Sect. 2 and so proportionately it may be said of the other What it is which constitutes a mixed Monarchy 1. The Soveraigne power must be originally in all three viz. If the composition be of all three so that one must not hold his power from the other but all equally from the fundamentall Pos 1 Constitution for if the power of one be originall and the other Derivative it is no mixture for such a Derivation of power to others is in the most simple Monarchy Againe the end of mixture could not be obteyned for why is this mixture framed but that they might confine each other from exorbitance which cannot be done by a derivate power it being unnaturall that a derived power should turne back and set bounds to its owne beginning 2. A full equality must not be in the three estates though Pos 2 they are all sharers in the Supreame power for if it were so it could not have any ground in it to denominate it a Monarchie more then an Aristocracie or Democracie 3. A power then must be sought wherewith the Monarch Pos 3 must be invested which is not so great as to destroy the mixture nor so titular as to destroy the Monarchy which I conceive maybe in these particulars 1. If he be the head and Fountaine of the power which governs and executes the established Lawes so that both the other States as well conjunctim as divisim be his sworne subjects and owe obedience to his commands which are according to established Lawes 2. If he hath a sole or chiefe power in capacitating and putting those persons or societies in such States and conditions as whereunto such Supreme power by the foundations of the Government doth belong and is annexed so that though the Aristocratical and Democraticall power which is conjoyned to his be not from him yet the definement and determination of it to such persons is from him by a necessary consecution 3. If the power of convocating or causing to be put in existence and dissolving such a Court or Meeting of the two other estates as is authoritative be in him 4. If his authority be the last and greatest though not the sole which must establish and adde a consummatum to every Act. I say these or any of these put into one person makes that State Monarchicall because the other though they depend not on him quoad essentiam et actus formales but on the prime constitution of the Government yet quoad existentiam et determinationem ad subjecta they doe The Supreme power being either the Legislative or the Gubernative In a mixed Monarchy sometimes the mixture is the seate of the Legislative power which is the chiefe of the two The power of constituting officers for governing by those Lawes being left to the Monarch Or else the Primacie of both these powers is jointly in all three For if the Legislative be in one then the Monarchy is not mixed but simple for that is the Superiour if that be in one all else must needs be so too By Legislative I meane the power of making new Lawes if any new be needfull to be added to the foundation and the Authentick power of interpreting the old For I take it this is a branch of the Legislative and is as great and in effect the same power Every mixed Monarchy is limited but it is not necessary Sect. 3 that every limited should be mixed For the Prince in a mixed Monarchy were there no definement of him to a Law but onely this that his Legislative acts have no validity without the allowance and joint authority of the other this is enough to denominate it exactly a limited Monarchy and so much it must have if it be mixed On the other side if in the foundations of his Government he be restrained to to any Law besides his own Will he is a limited Monarch though that both the Legislative and Gubernative power provided he exceed not those Lawes be left in his owne hands But then the Government is not mixed Now concerning the extent of the Princes power and the Sect. 4 subjects duty in a mixed Monarchy How far the Princes power extends in a mixed Monarchy almost the same is to be said which was before in a limited for it is a generall rule in this matter such as the Constitution of Government is such is the Ordinance of God such as the Ordinance is such must our duty of subjection be No Power can challenge an obedience beyond its owne measure for if it might we should destroy all Rules and differences of Government and make all absolute and at pleasure In every mixed Principality First Looke what Power is solely entrusted and committed Assert 1 to the Prince by the fundamentall Constitution of the State in the due execution thereof all owe full subjection to him even the other Estates being but societies of his subjects bound to him by Oath of Allegeance as to their liege Lord. Secondly those acts belonging to the power which is stated Assert 2 in a mixed Principle if either part of that Principle or two of the
though not on the contrary for the necessary connexion of other power to it is one of the greatest limitations A subordination of Causes doth not ever prove the supreme Cause of limited virtue a co-ordination doth alwayes Reas 3 Thirdly I prove it from the ancient ordinary and received denominations for the Kings Majesty is called out Liege that is Legall Soveraigne and we his Liege that is his Legall Subjects what doe these names argue but that his Soveraignty and our subjection is legall that is restrained by Law Reas 4 Fourthly had we no other proofe yet that of Prescription were sufficient In all ages beyond record the Lawes and Customes of the Kingdome have been the Rule of Government Liberties have been stood upon and Grants thereof with limitations of Royall power made and acknowledged by Magna Charta and other publike and solemne acts and no Obedience acknowledged to be due but that which is according to Law nor claimed but under some pretext and title of Law Reas 5 Fifthly the very Being of our Common and Statute Lawes and our Kings acknowledging themselves bound to governe by them doth prove and prescribe them Limited for those Lawes are not of their sole composing nor were they established by their sole Authority but by the concurrence of the other two Estates so that to be confined to that which is not meerly their owne is to be in a limited condition Pleaders for defensive armes Sect. 2. 4. Some there be which have lately written on this subject who take another way to prove our Government limited by Law viz. by denying all absolute Government to be lawfull affirming that Absolute Monarchy is not at all Gods Ordinance and so no lawfull power secured from resistance What is their ground for this God allowes no man to rule as he list nor puts mens lives in the pleasure of the Monarch It is a power arbitrary and injurious But I desire those Authors to consider that in absolute Monarchy there is not a resignation of men to any Will or list but to the reasonable Will of the Monarch which having the Law of reason to direct it is kept from injurious acts But see for defence of this Government Part 1. cap. 2. Having set downe those Reasons on which my Judgement Sect. 3 is setled on this side I will consider the maine Reasons wherby some have endeavoured to prove this Government to be of an absolute nature and will shew their invalidity Many Divines perhaps inconsiderately perhaps wittingly for self ends have beene of late yeares strong Pleaders for Absolutenesse of Monarchicall Power in this Land and pressed Obedience on the Consciences of People in the utmost extremity which can be due in the most absolute Monarchy in the world but I seldome or never heard or read them make any difference of Powers but usually bring their proofes from those Scriptures where subjection is commanded to the higher Powers and all resistence of them forbidden and from Examples taken out of the manner of the government of Israel and Judah as if any were so impious to contradict those truths and they were not as well obeyed in Limited Government as in Absolute or as if Examples taken out of one Government do alwayes hold in another unlesse their aime were to deny all distinction of Governments and to hold all absolute who have any where the supreme power conveyed to them Among these I wonder most at that late discourse of Dr. Ferne who in my Judgement avoucheth things inconsistent and evidently contradictory one to the other For in his Preface he acknowledges our Obedience to be limited and circumscribed by the Lawes of the Land and accordingly to be yeelded or denied to the higher Power and that he is as much against an absolute Power in the King and to raise him to an arbitrary way of Government as against resistence on the Subjests part also that his power is limited by Law Sect. 5. Yet on the other side he affirmes That the King holds his Crown by conquest that it is descended to him by three Conquests Sect. 2. that we even our Senate of Parliament hath not so much plea for resistence as the ancient Romane Senate had under the Romane Emperours whose power we know was absolute Sect 2. that in Monarchy the judgement of many is reduced ro one that Monarchy settles the chief power and finall Judgment in one Sect. 5 what is this but to confesse him limited and yet to maintain him absolute Arguments on the contrary dissolved But let us come to the Arguments First say they our Kings came to their right by Conquest yea saies the Dr. by three Conquests He meanes the Saxons Danes and Normans as appears afterwards Therefore their right is absolute Here that they may advance themselves they care not though it be on the ruine of publique liberty by bringing a whole Nation into the condition of conquered slaves But to the Argument 1. Suppose the Antecedent true the Consequution is not alwaies true for as is evident before in the first Part. All Conquest doth not put the Conqueror into an absolute right He may come to a right by Conquest but not sole Conquest but a partiall occasioning a Right by finall Agreement and then the right is specificated by that fundamentall agreement Also he may by sword prosecute a claime of another nature and in his war intend only an acquiring of that claimed right and after conquest rest in that Yea farther he may win a Kingdome meerly by the Sword and enter on it by right of Conquest yet considering that right of conquest hath too much of force in it to be safe and permanent he may thinke conquest the best meane of getting a Kingdome but not of holding and in wisdome for himselfe and posterity gaine the affections of the people by deserting that Title and taking a new by Politique agreement or descend from that right by fundamentall grants of liberties to the people and limitations to his own power but these things I said in effect before in the first part only here I have recalled them to shew what a non sequitur there is in the Argument But that which I chiefly intend is to shew the infirmity or falsehood of the Antecedent it is an Assertion most untrue in it selfe and pernitious to the State Our Princes professe no other way of comming to the Crown but by right of succession to rule free subjects in a legall Monarchy All the little shew of proofe these Assertors have is from the root of succession So William commonly called the Conquerour For that of the Saxons was an expulsion not a Conquest for as our Histories record They comming into the Kingdome drove out the Britaines and by degrees planted themselves under their Commanders and no doubt continued the freedome they had in Germany unles we should thinke that by conquering they lost their own Liberties to the Kings for whom they conquered and
hee cannot Judge by himselfe or Officers but in Courts of Justice so those Cours of Justice must have a constitution by a concurrence of the three Estates They must have the same power to constitute them as the Lawes which are dispensed in them Pos 4 Fourthly in the very succession for though succession hath been brought as a Medium to prove the Absolutenesse of this Government yet if it be more throughly considered it is rather a proofe of the contrary and every one who is a successive Monarch is so far limited in his power that he cannot leave it to whom he pleases but to whom the Fundamentall Law concerning that Succession hath designed it And herein though our Monarchy be not so far limited as that of France is said to be where the King cannot leave it to his Daughter but to his Heire male yet restrained it is so that should he affect another more or judge another fitter to succeed yet he cannot please himselfe in this but is limited to the next Heire borne not adopted or denominated which was the case 'twixt Queene Mary and the Lady Jane Lastly in point of Revenue wherein their Power extendeth Pos 5 not to their Subjects Estates by Taxes and Impositions to make their owne what they please as hath been acknowledged by Magna Charta and lately by the Petition of Right the case of Ship-money Conduct-money c. Nor as I conceive to make an Alienation of any Lands or other Revenues annexed by Law to the Crowne I meddle not with personall limitations whereby Kings as well as private men may limit themselves by Promise and Covenant which being particular bind onely themselves but of those which are radicall and have continued during the whole current of succession from unknowne times Other limitations it is likely may be produced by those who are skilfull in the Lawes but I beleeve they will be such as are reducible to some of these which I take to be the principall and most apparent limitations of this Monarchy and are a most convincing induction to prove my Assertion in the former Chapter That this Monarchy in the very Mold and Frame of it is of limited constitution CHAP. III. Whether it be of a Simple or Mixed Constitution Quest 3. WHen the Government is simple when mixed also Sect. 1 where the mixture must be which denominates a mixed Government is explained Part 1. Cap. 3. Now I conceive it a cleare and undoubted Truth that the Authority of this Land is of a compounded and mixed nature in the very root and constitution thereof And my judgment is established on these grounds Reas 1 First It is acknowledged to be a Monarchy mixed with Aristocracy in the house of Peeres Answer to the 19. Proposit and Democracy in the house of Commons Now as before was made appeare in the first Part it is no mixture which is not in the Root and Supremacy of Power for though it have a subordination of inferiour Officers and though the Powers inferiour be seated in a mixed subject yet that makes it not a mixed Government for it is compatible to the simplest in the world to have subordinate mixtures Reas 2 Secondly that Monarchy where the legislative power is in all three is in the very Root and Essence of it compounded and mixed of those three for that is the height of power to which the other parts are subsequent and subservient so that where this resideth in a mixed subject that is in three distinct concurrent Estates the consent and concourse of all most free and none depending on the will of the other that Monarchy is in the most proper sense and in the very modell of it of a mixed constitution but such is the state of this Monarchy as appeares in the former question and is self-apparent Reas 3 Thirdly that Monarchy in which three Estates are constituted to the end that the power of one should moderate and restrain from excesse the power of the other is mixed in the root and essence of it but such is this as is confessed in the answere to the said Propositions The truth of the major will appeare if we consider how many wayes provision may be made in a Politicall Frame to remedy and restraine the excesses of Monarchy I can imagine but three wayes First by constituting a legall power above it that it may be regulated thereby as by an over-ruling power Thus wee must not conceive of our two houses of Parliament as if they could remedy the exorbitances of the Prince by an Authority superiour to his for this were to subordinate him to the two Houses to set a superiour above the Soveraigne that is to destroy the being of his Monarchicall power Secondly by an originall conveyance to him of a limited and legall power so that beyond it he can doe no potestative act yet constituting no formall legall power to refraine or redresse his possible exorbitances here is limitation without mixture of another constituted power As the former of these overthrowes the power of the Soveraigne so this makes no provision for the iudemnity of the people Thirdly now the never enough to be admired wisedome of the Architects and Contrivers of the frame of Government in this Realme who ever they were have found a third way by which they have conserved the Soveraignty of the Prince and also made an excellent provision for the Peoples freedome by constituting two Estates of men who are for their condition Subjects and yet have that interest in the Government that they can both moderate and redresse the excesses and illegalities of the Royall power which I say cannot be done but by a mixture that is by putting into their hands a power to meddle in acts of the highest function of Government a power not depending on his will but radically their owne and so sufficient to moderate the Soveraignes power Now what can reasonably be said in opposition to these Sect. 2 grounds proving a fundamentall mixture I cannot devise Neither indeed is a mixture in the Government denied by the greatest Patrons of irresistibility onely such a mixture they would faine make it which might have no power of positive resistence I will therefore set down what they probably may or do object to this purpose and will shew the invalidity thereof First this mixture seems not to be of distinct powers but of Object 1 a Power a Councell authority in the Prince to give power to Acts and counsell in the two Houses to advise and propose wholesom Acts as if the royall power alone did give life to the Law onely he is defined in this power that he cannot animate any Act to the being of a Law but such as is proposed unto him by this great and Legislative Councell of Parliament Sol This were probable supposing the Parliament were onely in the nature of a Counsell but we know it is also a Court the High Court of Parliament Now it is
reserved for one it was concluded that these two Estates should be Assemblies of his Subjects sworne to him and all former Lawes the new which by agreement of Powers should be enacted were to be his Lawes and they bound to obey him in them as soone as established And being supposed that he who was to governe by the Lawes and for the furtherance of whose Government the new Lawes were to be made should best understand when there was need and the assembling and dissolving the two Estates meeting was a power of great priviledge it was put into the Princes hand by writ to convocate and bring to existence and to adjourne and dismisse such meetings Sixthly in processe of time Princes not caring much to have their Government looked into or to have any power in act but their own took advantage of this power of convocating those Estates and did more seldome then need required make use of it whereon provision was made and a time set within which an Assembly of Parliament was to be had Now when you have made these suppositions in your minde you have the very modell and platforme of this Monarchy and we shall easily find what to answer to the arguments before produced on either side For first it is his Parliament because an assembly of his subjects convocated by his Writ to be his Councell to assist him in making Lawes for him to govern by yet not his as other Courts are altogether deriving their whole authority from the fulnesse which is in him Also his power of assembling and dissolving proves him thus far above them because in their existence they depend on him but their power and authority quoad specificationem the being and kind of it is from originall constitution for they expect no Commission and authority from him more then for their meeting and reducing into existence but existing they worke according to the priviledges of their constitution their acts proceeding from their conjunct authority with the Kings not from its subordination to the Kings The oath of Allegeance binds them and respects them as his subjects to obey him governing according to established Lawes it supposes and is built upon the foundations of this Government and must not be interpreted to overthrow them he is thereby acknowledged to be supreme so far as to rule them by Lawes already made not so far as to make Lawes without them so that it is no derogation to their power and I beleeve of these things none can make any question Therein consists the accurate Judgement of the Contrivers of this Forme they have given so much into the hands of the soveraign as to make him truly a Monarch and they have reserved so much in the hands of the two Estates as to enable them to preserve their owne liberty CHAP. IIII. Quest 4 How farre forth it is mixed and what parts of the Power are referred to a mixed Principle I Shall be the briefer in this because an answer to it may be easily collected out of the precedent Questions for he who knowes how farre this Government is limited will soon discerne how farre it is mixed for the Limitation is mostly affected by the mixture Three points of mixture but distinctly I conceive that there are three parts of the power referred to the joint concourse of all three Estates So that either of them not consenting or suspending its influence the rest cannot reduce that power ordinarily and legally into act The first is the Nomotheticall power understanding by it the power of making and authentick expounding Lawes so that I believe an act cannot have the nature and forme of a Law of the Land if it proceed from any one or two of these without the positive concurrence of the third Secondly The power of imposing taxes and payments on mens estates that the King by himself cannot assume mens properties by requiring impositions not granted him by Law is often confested And that the other Estates cannot doe it by themselves I conceive it as unquestionable For it were strange to give that to the secondary and assisting Powers which is denied to the Soveraigne and principall If it be objected that every Corporation electing Deputies and authorizing them to be vice totius Communitatis do thereby grant them power and entrust them as to make laws to bind them so to dispose of any part of their estate either by rate or payment for the publique good I answer that they are by that deputation enabled as for one so for the other that is according to the fundamentall usuage of the Kingdome that is by the joint consent of the other estates for though the house of Commons is chosen by the people and they represent the people yet the representation doth not give them a power which was not in the people Now the people have no power to doe an act which either directly or by consequence doth put it in the will and pleasure of any one or two of the Estates to overthrow the other But this power of opening and shutting the Purse of the Kingdome is such a power that if it be in one or two of the Estates without the third then they by that power might necessitate that other to doe any act or disable it from its owne defence This and the Legislative power have such a neernesse that they cannot be divided but must be in the same subject this is so great a power that put it absolutely in any Estate single you make that Estate in effect absolute making the rest dependent and beholding to it for their subsistence Thirdly the power of dispatching the affaires of the Kingdome which are of greatest difficulty and weight the ardua regni which the Writ for convocating the other Estates doth mention supposing thereby that such difficulties are not to be dispatched by the power of one alone for if they were why then are the two other convocated to be assisting I acknowledge many matters of great moment may be done by the Regall power and in such case it may be said that the other Estates are gathered ad molius traâ—sigendum that the advise and sense of the Community may be for direction But I conceive there be two sorts of affaires which ought not to be transacted without the concurrence of all three First such as concerne the publike safety and weale so far as stable detriment or advantage comes to the whole body by the well or ill carriage thereof for then there is the same reason as in making new Lawes For why was not the power of making any new Lawes left in the hands of one but reserved for the concurrence of all three save because the end of the Architects was that no new thing which was of so much concernment as the stable good and dammage of the Kingdome should be introduced without the consent and advice of the whole so that if any businesse be of that moment that it is equipollent to a Law in
preserving it in his owne hands having made direct and particular promises to assure us of their upholding against all subvertion by his own power so that here is assurance enough without visible meanes of force for a spirituall body which lives by faith But in a civill State there is no such assurance nor supporting promises power onely in the undefined being of it being Gods immediate Ordinance and not in this specificated or determinate being wherefore it hath no such immediate provision made for its preservation no promise of a divine power for its standing but as it is left by God to mens wisdome to contrive the frame so to their providence to establish meanes of preservation As the body is outward and Civill so the upholding meanes must be such spirituall and infallibly assuring a Formed State hath not as the Church and Faith have if there be none of outward force and power neither then none at all it hath and is in ill case indeed But there is an art full of venome when a truth can not bee beaten downe by just reasoning then to make it odious by hatefull comparisons so in this case aspersions are cast as if the Patrons of Resistence did borrow the Popish and Jesuiticall grounds and their Positions as dangerous to Kings as the Jesuites hell-bred and bloudy Principles whereas it appeares by all this discourse and I am perswaded is written in Capitall Letters in the very Conscience of them which despitefully object it that there is no congruity at all 'twixt their Doctrines no more then 'twixt Light and Darknesse Thirdly because such power is due to a publike State for Arg. 3 its preservation as is due to a particular person But every particular person may lawfully by force resist illegall destructive Ministers though sent by the command of a legall Soveraigne provided no other meanes of selfe-preservation be enough This Assumption the Doctor seemes to grant he denies it to be lawfull against the Person of the Prince but in effect yeelds it against subordinate persons But the main is against the Proposition and the Doctor is so heavie a friend to the State that he thinkes it not fit to allow it that liberty he gives every private man But whose Judgement will concurre with his herein I cannot imagine for sure the Reason is greater the publike safety being far more precious and able to satisfie the dammages of a publike resistence then one particular mans is of a private But of this more in answer to his Reasons Fourthly because it is a power put into the two Estates by Arg. 4 the very reason of their Institution and therefore they not onely may but also ought to use it for publike safety yea they should betray the very trust reposed in them by the Fundamentals of the Kingdome if they should not An authority Legislative they have Now to make Lawes and to preserve Lawes are acts of the same power yea if three powers jointly have interest in making of Lawes surely either of these severally have and ought to use that power in preserving them Also that the authority which the Houses have is as well given them for preserving the government by established lawes as for establishment of lawes to govern by is a truth proved by the constant use of their power to that end in correcting the exorbitance of inferiour Courts questioning delinquent Judges and Officers of State for violations and much is done in this kinde by the sole authority of the Houses without the concurrence or expectance of Royall power so then supposing they have such an authority for safety of publike Government to question and censure inferiour Officers for transgressions though pretending the Kings authority can it be denied but that their authority will beare them out to use forcible resistence against such be Arg. 5 they more or fewer Fifthly the Kings Warrant under his hand exempts not a Malefactor from the censure of a Court of Justice nor punishment imposed by Law but the Judge must proceed against him according to Law for the Law is the Kings publike and authoritative Will but a private Warrant to doe an unlawfull act is his private and unauthoritative Will wherefore the Judge ought to take no notice of such Warrant but to deale with the Offendor as no other then a private man This proves that such Instruments thus illegally warranted are not authorized and therefore their violence may be by force resisted as the assaults of private men by any and then much rather by the Houses of Parliament which supposing them divided from the King to have no complete authority yet sure they have two parts of the greatest Legislative authority But I feare I shall seeme superfluous in producing Arguments to prove so cleare a truth Is it credible that any one will maintaine so abject an esteeme of their authority that it will not extend to resistence of private men who should endevour the subversion of the whole frame of Government on no other Warrant then the Kings Will and Pleasure Must they be meerly passive Is patience and the deniall of their Votes to a subversion all the opposition they must use if a King which God forbid should on his Royall pleasure send Cut-throats to destroy them as they sit in their Houses Is all their authority if the King desert them or worse no more then to Petition and suffer and by a moderate use of their power of denying dissent from being willing to be destroyed If power of resisting by force of subverters armed by the Kings Will for by his Authority they cannot be unlawfull for them all these absurdities must follow yea the vilest Instrument of Oppression shewing but a Warrant from the King to beare him out may range and rage all his dayes through a Kingdome to waste and spoile taxe and distraine and at utmost of his insolence must have no more done to him by the Parliament it selfe then to stay his hand as the basest Servant may his Masters or the meanest Subject the Kings owne hand by the Doctors own confession Consider then and admire if any men of learning will deny this power of forcible resistence of Ministers of subverting commands to be lawfull I have thus far confirmed my assertion not that I finde any openly opposing it but because the Doctor and some other seeme to have a mind that way and doe strike at it though not professedly and in open dispute For the severall proofes brought in behalfe of Resistence some of them prove as much as is here asserted others are not to the purpose Particularly that of the Peoples rescuing Jonathan from his Fathers bloudy resolution proves lawfulnesse of hindering unreasonable self-destructive purposes even in absolute Monarchies if it prove any thing That of Vzzal's thrusting out by the Priests is not to the purpose but Davids raising and keeping Forces about him and his purpose at Keilah proves the point directly viz. Lawfulnesse of forcible resistance
did altogether crosse those ends of their Ordination he had taught them rather a Doctrine of Resistence then Subjection shall we conceive that hee would presse subjection to Powers in the hands of Heathens and Persecutors if he had not intended they should passively be subject unto them even under those Persecutions Rather I approve the received Doctrine of the Saints in ancient and moderne times who could never finde this licence in that place of the Apostle and doe concurre with Master Burroughs Answ to Dr. Ferne Sect. 2. professing against resistence of authority though abused If those saies he who have power to make Lawes make sinfull Lawes and so give authority to any to force obedience we say here there must be either flying or passive Obedience And againe We acknowledge we must not resist for Religion if the Lawes of the land be against it But what doe they say against this In making such Lawes against Religion the Magistrates are not Gods ordinance and therefore to resist is not to resist Gods ordinance As an inferiour Magistrate who hath a Commission of Power for such ends is resistible if hee exceed his Commission and abuse his Power for other ends so Princes being Gods Ministers and having a deputed Commission from him to such ends viz. the promotion of godlinesse Peace Justice if they pervert their power to contrary ends may be resisted without violation of Gods ordinance That I may give a satisfactory answere to this which is the summe of their long discourse I must lay it downe in severall Assertions First I acknowledge Gods ordinance is not onely Power Assert 1 but Power for such ends sc the good of the People Secondly it is also Gods ordinance that there should be Assert 2 in men by publike consent called thereto and invested therein a power to choose the meanes the Lawes and Rules of government conducing to that end and a power of Judging in relation to those Lawes who be the well doers which ought to be praised and who the evill doers who ought to be punished This is as fully Gods ordinance as the former for without this the other cannot be performed Thirdly when they who have this finall civill Judicature Assert 3 shall censure good men as evill doers or establish iniquity by a Law to the encouragement of evill doers in this case if it be a subordinate Magistrate doth it appeale must bee made as Saint Paul did to the supreme if it be the supreme which through mistake or corruption doth mis-censure from whom there lyes no Civill Appeale then without resistence of that Judgement wee must passively submit And he who in his owne knowledge of innocency or goodnesse of his cause shall by force resist that man erects a Tribunal in his owne heart against the Magistrates Tribunal cleares himselfe by a private Judgement against a publike and executes his owne sentence by force against the Magistrates sentence which hee hath repealed and made void in his owne heart In unjust Censures by the highest Magistrate from whom there is no Appeale but to God the sentence cannot be opposed till God reverse it to whom we have appealed In the meane time vvee must suffer as Christ did notwithstanding his Appeale 1 Pet. 2.23 and so must wee notwithstanding our Appeale 1 Pet. 4 19. for he did so for our example If an Appeale to God or a censure in the Judgement of the condemned might give him power of resistence none would be guilty or submit to the Magistrates censure any further â—hen they please I desire those Authors before they settle their judgement in such grounds which I feare will bring too much scandall to weigh these particulars First their opinion takes away from the Magistrate the chiefe part of Gods ordinance sc povver of definitive judgement of Lawes and Persons who are the good and who the bad to be held so in Civill proceedings Secondly they justifie the Conscience of Papists Heretickes and grossest Malefactors to resist the Magistrate in case they be perswaded their cause is good Thirdly they draw men off from the commands of Patience under persecution and conforming to Christ and his Apostles in their patient enduring without verball or reall opposition though Christ could not have wanted power to have done it as he tells Peter Fourthly they deprive the Primitive and Moderne Martyrs of the glory of suffering imputing it either to their ignorance or disability Fifthly it is a wonder that sith in Christs and his Apostles time there was so much use of this power of resistence they would by no expresse word shew the Christians this liberty but condemne resistence so severely Sixthly there is in the case of the Parliament now taking up Armes no need of these offensive grounds Religion being now a part of our Nationall Law and cannot suffer but the Law must suffer with it Sect. 2 Now to the proposed Question I answere first Negatively sc 1. 1. When arms ought not to be assumed It ought not to be done against all illegall proceedings but such which are subversive and unsufferable Secondly not publike resistence but in excesses inducing publike evils for to repell private injuries of highest nature with publike hazzard and disturbance will not quit cost unlesse in a private case the common Liberty be strooke at Thirdly not when the government is actually subverted and a new forme though never so injuriously set up and the People already engaged in an Oath of absolute subjection for the remedy comes too late and the establishment of the new makes the former irrevocable by any justifiable power within the compasse of that Oath of God This was the case of the Senate of Rome in Saint Pauls time 2. When they may be assumed Secondly affirmatively I conceive three cases when the other Estates may lawfully assume the force of the Kingdome the King not joyning or dissenting though the same be by Law committed to him First when there is invasion actually made or imminently feared by a forraigne Power Secondly when by an intestine Faction the Lawes and Frame of government are secretly undermined or openly assaulted In both these cases the Being of the Government being endangered their trust binds as to assist the King in securing so to secure it by themselves the King refusing In extreme necessities the liberty of Voices cannot take place neither ought a Negative Voice to hinder in this exigence there being no freedome of deliberation and choice when the Question is about the last end Their assuming the sword in these cases is for the King whose Being as King depends on the Being of the Kingdome and being interpretatively his act is no disparagement of his Prerogative Thirdly in case the Fundamentall Rights of either of the three Estates bee invaded by one or both the rest the wronged may lawfully assume force for its owne defence because else it were not free but dependent on the pleasure of the other Also the suppression of