these were not called but the chief of them as Earls who possessed twenty Knights Fees and Barons which had to the value of thirteen Knights Fees and a third part of one 3. That because these were too many some of them were call'd to Parliament some omitted and only such as were called were counted Barons the rest not 4. This being taken ill the Barons caused King John adigere to covenant under the Broad Seal to summon severally by so many Writs the Arch-Bishops Abbots Earls and the greater Barons of the Kingdom 5. Yet Henry the Third so little regarded that compact that he called and kept a Parliament with an hundred and twenty Spiritual and only twenty five Temporal Lords though he had numbred two hundred and fifty Baronies in England 6. Edward the First omitted divers of those whom Henry the Third had summoned So that it will be a very difficult thing to rectifie or reduce unto the first institution this House as distinct from that of the Commons For it should be known 1. What kind of persons must constitute this other House 2. What their Priviledges be 3. What they must do which the House of Commons may not must not do section 15 By all this something of the nature of the Parliament may be known But then what is the power of this assembly either severally considered without the King or jointly with the King And that they may make Orders and Ordinances pro tempore will be granted and also which is far more if the King have no Negative voice the Legislative and Judicial power is in them and their ultimate Resolves and Dictates in all matters of Counsel must stand And if so then reason will conclude that if the King refuse to be personally or virtually present and to act with them they may do any thing for the good of the Kingdom without him which they may do jointly with him Yet because Laws and Judgment are ineffectual without execution therefore the King being trusted with the execution was required to give his consent that he might take care of the Execution For to that end was he trusted with the Sword of Justice and War that he might protect the people and see that Laws and Judgments be executed If we consider the Parliament as consisting of King Peers and Commons jointly it is the first subject of Personal Majesty and to it and it alone belongs all the Jura Majestatis personalis They have the power Legislative Judicial Executive to exercise it in the highest degree and may perform all acts of administration as distinct from the Constitution They are the highest assembly for Legislation the highest Counsel for advice the highest Court for Judicature section 16 This is the power of the Parliament which can do many and great things yet some things they cannot do for they are limitted not only by the Laws of God but also by the Laws of the Constitution Sir Roger Owen tells That the Parliament cannot do all things For 1. Many Acts are Voted for errors in matter of fact and for contrariety in words and sometimes they have idle and flattering proviso's 2. A Parliament hath not power to ordain that a Law shall not be abrogated for the space of twenty years for a latter Parliament may repeal their Acts. 3. That a Parliament cannot Enact that if there were no Heir to the Crown that the people should not be able to chuse a new King. 4. It cannot change the form of our Policy from a Monarchy to a Democraty 5. It cannot take away divers Prerogatives annexed to the Crown of England or that the King should not be able to dissolve the Parliament at will and pleasure yet in another place he tells us that he cannot dissolve the Parliament at will and pleasure and again he is not above the Parliament because he cannot be above himself and in Parliament he is Maxime Rex He further informs us that the common Law is the King's Inheritance and how the Parliament may wither away the Flowers of the Crown The true reason why the Parliament cannot do some of these things nor others not mentioned by him is because they have not real but personal Majesty They cannot alter the Government nor take away divers things belonging to the Crown because they did not give the Prerogatives of the Crown at the first the Commons of the Realm gave them as he confesseth The form of Government was first constituted by the Community of England not by the Parliament For the Community and people of England gave both King and Parliament their being and if they meddle with the Constitution to alter it they destroy themselves because they destroy that whereby they subsist The Community indeed may give a Parliament this power to take away the former Constitution and to frame and model another but then they cannot do this as a Parliament but as trusted by the people for such a business and work nay they may appoint another assembly of fewer or more to do such a work without them They may set up a Consilium sapientum which may determine what matters are fit to be proposed to the Parliament and in what order and also contrive a Juncto for all businesses which require expedition and secrecy which may act without them whether the Parliament it self can do such things or no may justly be doubted What may be done in extraordinary cases is one thing what may be done in an ordinary way another When he saith that the Parliament cannot change the form of Policy from a Monarchy he presupposeth our State of England to be a Monarchy yet if he distinguish not between the Constitution and the administration he may be guilty of an error For it 's not a Monarchy but only in respect of the Executive part in the Intervals of Parliaments Our Ancestors abhorred absolute and arbitrary Monarchs therefore before they did establish a King they made a bridle to keep him in and put it upon him This is plain from Bracton Fortescue the Coronation Oath and the Mirror section 17 From all this we may conjecture what the Constitution of England was It was no absolute Monarchy that 's plain enough Neither was it a State of pure disposition but mixt Neither were the Jura Majestatis divided some to the King some to the Lords some to the Commons it was of a far better mould The personal Majesty primary was in King Peers and Commons jointly in the whole assembly as one body this may appear several ways as 1. From this that it was a Representative of the whole Nation and as it was a general Representative of all England and no ways else was it invested with this personal Sovereignty It must represent the whole Community all the Members thereof of what rank or condition soever not only the Laity but the Clergy too these are words used in our Laws and good enough though disliked by
think an ordinary power continued on foot till the Members were secluded yet there was no such thing for the two Houses could not according to ordinary Rules exercise the Ordinary power of the King though they might use his name and did so contrary unto his consent If they should alledge that his power was forfeited and did divolve upon them that would be hard to prove We know well enough if it be not in him where it is it could no ways be in them but for the exercise and in them for that end it was an extraordinary way Some would say that if the King was dead either naturally or in Law a Parliament must instantly dissolve and be no Parliament because there was wanting an essential part The act of continuance could not help them in this case for it presupposed all the three essential parts Neither could any particular Parliament enact that there should be a Parliament without all the three essential members If they should make any such Act by a following Parliament it may be repealed and the parties in the name of the People of England called to account for altering the Fundamental Government For we must not favour on particular Parliament so as to wrong all England or suffer any ill example to be given Yet if ever any Parliament did deserve not only to be pardoned if they did some things amiss but to be rewarded for their service surely this Parliament did for never any suffered more even from him who summoned them and from them who chose the particular Members Never any was brought into the like straits I mean that this respect was to be had to the upright party But if there was no ordinary power what must the people do in such a case and distracted condition In this I will give mine opinion in that which follows section 10 Whether could the Act of alteration which required the ingagement or any of the alterations which followed introduce an Obligation to Subjection The answer is they could not in any ordinary way do any such thing For if the constitution was dissolved and the personal Majesty forfeited it must devolve unto the people and no Parliament nor part of a Parliament or any other person but the people could either alter the former Government nor Model a new one For according to the general principles of Government the right of Constitution Alteration Abolition Reformation is the right of real Majesty if it be not their right then the people may be bound to Subjection without their consent A Parliament may declare it but some make it a Question whether their Declaration be binding If they who required the engagement did intend to exclude a King who should separate from them or refuse to act with them or challenge an Absolute power 2. To abolish the House of Lords as distinct from that of the Commons with a Negative Voyce in Legislation and of such Lords as were Lords by Writ or Patent only 3. To declare that upon a dissolution the power was devolved to the people it was the more tolerable Yet who gave them power to do this or declare this When I mention the people of England as the primary subject of Power and the heir of real Majesty I mean the rational judicial party for no consent of people that is not rational and agreeable to the Laws of God is of any force And I exclude not only such as are barely Members virtually but all Rebels Traytors and malignant persons For in the midst of these Bloody distractions and perplexity of minds there was a Sanior pars a rational judicious party that unfeignedly desired the Peace Welfare and happiness of England And when many Members of a Community are insufficient of themselves to judge what is just and good many of them perverted the power remains in parte saniore aut in parte hujus partis valentiore and in those who upon right information shall consent with them For many who are not able of themselves to judge yet when they are rightly informed are willing to consent But to return unto the former Question seeing there was no ordinary power which could introduce any strict Obligation what must the People do in such a Case What 's their duty The Answer is That though there was no Ordinary yet there was an Extraordinary Power ever since the Wars were ended to this day which they were bound to obey For 1. Seeing the Community of England did remain and in the same better party Real Majesty did continue 2. The Fundamental Government could not be dissolved by one King and one Parliament though they both had agreed to do it For though as to them it was actually dissolved yet the right might remain virtually in the Community I mean a right to continue it if they pleased 3. As the Case now is and was since the Wars were ended this Fundamental Government could not be so restored as to Act. 4. All parties did agree that there should be a Government and a Power for Protection and Administration of Justice but the difference was what the Model should be and most of all who should Exercise this Power Some did challenge and seek it for themselves some for their Friends whom they conceived to favour their party and interest For many of the Royalists were for the late Kings Eldest Son not so much for the Publick good as for the private interest and many other parties were guilty of the very same crime 5. Government it self for the substance is more material than this or that form and the Exercise of Power than the Exercise by such or such particular Persons For if there be not a Governing Power and some to Exercise it and the rest to submit there can be no protection from Enemies no Justice no Order but a meer Anarchy upon which a ruin instantly and unavoidably will follow For prevention whereof much may be done which in a time of safety would be utterly unlawful The people may submit to any whom they shall conceive shall be able to protect them and willing to preserve the Laws for Administration of Justice They need not stand upon doubtful Titles nor Quiddities in Law but may do what they can do so that it be not unjust by the moral Laws of God. 6. Seeing some particular Government was necessary and all rational men did agree in this therefore there was an obligation to subjection and every particular person was bound to submit unto the present power under which they enjoyed the benefit of the Laws and protection both from publick Enemies and private Injustice This is not so to be understood as though every one or any ought to rest in this extraordinary condition but to desire and endeavour to restore the first constitution freed from corruption or some part or degrees of it and proceed by little and little as God in divine providence shall prepare the people for it and enable us to introduce
them even but one from the Soveraign he is an imperfect Soveraign take away all he ceaseth to be a Soveraign Again the Subject of Majesty and of all the rights and parts thereof must be only one either Physically or Morally If you divide the Subject you destroy them For if in this Common-wealth we give part of these to the King part to the Peers part to the Commons we make it a Babel and destructive of it self For suppose the King have the Militia to himself he may command the Purse make void the Laws revoke Judgments reject Parliaments and none can hinder him because neither Peers nor Commons have any right to the Sword whereby to defend themselves Therefore little heed is to be given to that Book or bitter Invective entitled Elenchus motuum nuperorum which informs from the Lawyers if we may believe him that these Soveraign Rights were thus divided 6. From this that it 's Indivisible follows it that it 's incommunicable For to whomsoever they are communicated they cease to be Subjects and the Soveraign to be a compleat Soveraign and this Communication tends to the dissolution of the Government 7. It 's perpetual that is fixed in a certain subject to continue in the same according to the fundamental Laws of Constitution Therefore the Temporary or occasional power though very great of a Dictatour or Regent or Protectour who are but trusted with it for a time in extraordinary cases and upon occasion cannot be Majesty when there is an Interregnum or suspension of the Government by reason of Sedition Faction Rebellion Civil War or some other cause it 's good and expedient for the safety of a State to set up some extraordinary Governour or Governours trusted for a time with transcendent Power till the State disturbed and not capable of any Union be setled which done that Power doth cease and Majesty is fixed in his proper primary and constant subject that the Government may run in the old Channel except they intend to make an alteration of the Constitution section 15 There is another kind of personal Majesty inferiour to and different from the former We find it in some Princes of Europe as in the Emperour of Germany the Kings of Denmark Sweden Poland and England For our Kings had not only the title of Majesty but some power with the title For in the intervals of Parliament he was Soveraign alone and all and every one yea the greatest were his subjects He called and summoned Parliaments made all Officers by sea and land sent and received Ambassadours conferred all Honours the subjects sware Allegiance to him His Dignity was eminent his State great and so many advantages he had that if he should have used them all he might easily have undone his subjects and so have undone himself Yet he had not the power of the purse He was sworn to corroborate the just Laws and Customs which the people had chosen In the Parliament he made a third party yet so that neither in acts of Lawes or Judgement could he do any thing without the Peers and Commons and as Sir Roger Owen in his Manuscript observes together with them he was greater than himself Yet as Kings have sometimes curbed Parliaments so Parliaments have Kings and disposed of the Militia the Navy the Ports the chief Offices Nay they have sometimes judged Kings accusing them of acting against the fundamental Constitution and challenging such Power as tended to the dissolution of the same and have deposed them But of this particular something may be said hereafter these kinds of Soveraigns have so much power whether more or less as the Constitution gives them yet it will be a difficult thing to keep them within their bounds CHAP. V. Of the manner how Civil Power is acquired WHat the Nature of Power in general and Majesty Civil is hath been declared The next thing to be considered is the Subject who from it is denominated a Soveraign and we must enquire first how this Power is acquired 2. How disposed in a certain Subject As for the acquisition it 's certain Man as Man or as a Member of a Community cannot have it from himself but it must be communicated to him from God who being the Universal Soveraign is the Fountain and Original of it and derives some part of it unto Man and a greater measure unto Mortal Soveraigns than other Men. Yet he doth not this immediately but mediately for the most part It 's extrinsecal and comes aliunde not only unto Men but Angels A Paternal Power which is more Natural is acquired by Generation though sometimes by Adoption This Generation from divine Benediction is the seminary of all Societies which as Societies and Communities may be so disposed and compleat as virtually to contain in them a Power of a Common-wealth and by a general consent constitute an actual Soveraign The Soveraign before he was made such was not invested with Majesty but it was extrinsecal unto him And here that distinction between the Power it self the Designation of the Persons Governing and the Form of Government is worthy taking notice of The Designation of the Persons and the Form of Government is from God leaving Man at Liberty but not so the Power which is more from him than the other two Though the parties justly possessed of power may be thought to have the propriety of it yet they have not any for let it be never so firmly conveyed upon them by designation and submission yet they are but trusted with it Princes tell us they hold their Crowns and Kingdoms per Deum Gladium If they mean that they derive their power from God so as that they neither receive nor hold it from the Bishops of Rome or the Emperour or any other Mortals it may be true yet they have their power so from God that they are invested with it by Humane Designation And as for their Sword it may by a Conquest make way for a Government but it cannot constitute it The fundamental Charter of all Civil Majesty is the fifth Commandment taken in a large sence and understood by other Scriptures which speak more expresly and distinctly of Civil Government In this Commandment including much more by Analogy than is expressed we may observe that there is a power of Superiority and Excellency as in Fathers so in the Princes and Rulers of the World and that from God who made them Men Fathers Princes 2. That all Government should be Paternal Not that the first-born of the most ancient Family in every Tribe Kinred Nation should be a Soveraign for that we seldom find but that they should as Fathers love their Subjects and seek their Good and tender them as Fathers do their Children 3. That by virtue of Gods Command so soon as they are actually Governours Honour and Subjection are due unto them 4. That all Vicinities as far as they are able ought first to associate and then establish an
had already sworn could have found as many reasons against it as against the Covenant especially if it had been new as the Covenant was Many wise men at the first did scruple it and some suffered death for refusal Amongst the rest Sir Thomas Moor a learned and a very prudent man could not digest it and though he might have an high conceit of the Papal Supremacy yet that might not be the only reason of his refusal but this because he knew the Crown had no Ecclesiastical power properly so called Though this was not thought to be the true but only the pretended cause of his death For in his Vtopia he seems to dislike the Indisputable Prerogative which was a Noli me tangere and to touch it so roughly as he did might cost dear as it did Yet I have taken the Oath of Supremacy in that sense as our Divines did understand it and I was and am willing to give to Caesar the things that are Caesar's section 4 That which hath been said in this point in brief is this That though the Civil Powers have a right to order matters of Religion in respect of the outward part and so far as the Sword may reach it according to Divine Law yet they have no power of the Keys which Christ committed to the Church For if we consider all the power exercised in matter of Religion by David Solomon and the pious Kings of Judah by the Christian Emperours and Princes by the Kings of France and England it was but civil Neither is the power of our Parliaments any other For though they make Acts concerning the publick Doctrine and Discipline yet these are but civil They are not Representatives of the Church but of the State whether the Convocation was an essential part of the Parliament or a full representative of the Church I will not here debate I find some great Lawyers which deny both And if their denial be true then England had no general Representative of the Church in latter times As for Erastians and such as do give all Ecclesiastical power of Discipline to the State and deny all power to the Ministers but that of dispensing Word and Sacraments it 's plain they never understood the state of the Question and though a Minister as a Minister have no power but that of Word and Sacraments yet from thence it will not follow that the Church hath not a power spiritual distinct from that of the State in matters of Religion CHAP. XI Whether Episcopacy be the primary subject of the Power of the Keys section 1 THE Prelate presumes that the power of the Keys is his and he thinks his title very good and so good that though he could not prove the institution yet prescription will bear him out For he hath had possession for a long time and Universality and Antiquity seem to favour him very much Yet I hope his title may be examined and if upon examination it prove good he hath no cause to be offended except with this that I of all others should meddle with it But before any thing can be said to purpose we must first know the nature and institution of a Bishop which is the subject of the Question Secondly Put the Reader in mind that the Question is not in this place whether a Bishop be an Officer of the Church either by some special or some general Divine Precept but whether he be the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the primary subject of the power of the Keys For he may be an Officer and yet no such subject Concerning a Bishop the subject of the Question two things are worthy our consideration 1. What he is 2. How instituted at the first The Definition and Institution seem rather to belong unto the second part of Ecclesiastical Politicks where I shall entreat of Ecclesiastical Officers and the constitution of them Yet I will here say something of both in order to the Question though I be the briefer afterward section 2 What a Bishop is may be difficult to know except we do distinguish before we do define For we find several sorts of Bishops in the Church Christian. There is a Primitive a Prelatical or Hierarchical and an English Bishop distinct and different in some things from both the former for whom I reserve a place in the end of this Chapter The Primitive Bishop is twofold 1. A Presbyter 2. A President or Superintendent 1. A Presbyter in the New Testament is a Bishop For the Elders of Ephesus were made by the Holy Ghost Bishops or Superintendents over God's flock Acts 20.28 And the qualification of a Bishop 1 Tim. 3.1 2 3 c. is the qualification of an Elder Tit. 1.5 6 7 c. For whatsoever some of late have said to the contrary yet Presbyter and Bishop were only two different words signifying the same Officer And this is confessed by divers of the Ancients who tell us that the word Bishop was appropriated to one who was more than a Presbyter in after-times 2. A Bishop signified one that was above a Presbyter in some respects as a Moderatour of a Classis or President of a Synod But such a Presbyter might be only pro tempore for the time of the Session and after the Assembly dissolved he might return to be a bare Presbyter again For to be a Moderatour or President was no constant place The word in this sense we find seldom used if at all 2. A President was a kind of Superintendent with a care and inspection not only over the people but the Presbyters too within a certain precinct and this was a constant place and the party called a Bishop and by Ambrose and Austine with divers others called primus Presbyterorum and these were such as had no power but with the Presbytery joyntly and that without a negative voice And the Presbytery might be a Representative not only of the Presbyters strictly taken but of the people too For we may read in Cyprian and other Authours that these Bishops in more weighty matters of publick concernment did nothing without the counsel and consent not only of the Presbyters but the people This I call a primitive Bishop not only because he is ancient but also because the place or office is agreeable to the rules of Reason of Government and the general Rules of the Apostles concerning Order Decency Edification There is also an Hierarchical Bishop who may be only a Bishop or an Archbishop and Metropolitan or a Patriarch and these challenge the power of Ordination and Jurisdiction and in Jurisdiction include and engross the power of making Canons This kind of Episcopacy is ancient as the former This last Bishop is he upon whom Spalatensis and many others do fix and though they grant that he should do nothing without the Counsel of the Presbytery yet they give him full power without the Presbytery which they joyn with him only for advice The English Bishop is in
Subject as a Subject The Question is therefore Whether he that is a Soveraign may not be in some case resisted by the people and if he may in what case a resistance is lawful and free from the guilt of Rebellion Our Case in England is extraordinary and not easily known by many of our own much less by strangers not acquainted with our Government The Resistance in the late Wars was not the first that was made against the Kings of England by the people of England though it differed from all the former The difference was between the King and Parliament whereof he was a part yet severing himself from the whole body And the Parliament was no Subject considered as a Parliament for then the King himself being an essential part thereof should be a Subject As he was divided willingly or wilfully from it he could be no King no Soveraign For if the power was in the King and Parliament joyntly it could not be in him alone Besides when there is no Parliament we know he is a King by Law and the Kingdom is Regnum pactionatum non absolutum If he make himself absolute by that very act he makes himself no King of England For the common and fundamental Law knows no such King. Yet this was all either he or his party could say to justifie themselves If he say the Militia was his the Parliament will say it 's theirs as well as his and except he be absolute it must needs be so For if the supream power be in King Peers and Commons joyntly the Militia which is an essential part of this power could not be his alone The Parliament conceived that when he left them he left his power with them if that could be made good by the Fundamental Constitution then all England was bound to subject to them for the time and obey their just Commands And if it were not so how could all such as took up Arms with the King against them be adjudged Traytors as they were If these things be so there could be no Rebellion upon the Parliaments side because according to the Rules the Parliament was no Subject the King then separated from the Parliament refusing to Act with them Acting and Warring against them was no Soveraign The Question in the time of those bloody and unnatural Dissentions was stated several ways as Whether it was Rebellion in Subjects Commissioned by the Parliament to resist evil Counsellours Agents Ministers of State and Delinquents sheltring themselves under the King as divided from the Parliament and acting against the Laws by his Commissions or Whether the Parliament of England lawfully Assembled where the King virtually is may by Arms defend the Religion established by the same Power together with the Laws and Liberties of the Nation against Delinquents detaining with them the Kings seduced person or Whether the Parliament might not grant a Commission to the Earl of Essex by a force to apprehend Delinquents about the King to bring them to a due Tryal and this even against the personal will of the King Or whether after the Parliament had passed a Judgment against the King they might not lawfully give Commission to General Fairfaxe to apprehend the Kings person and bring him to the Parliament or Supposing the King to be an Absolute Monarch whether any of these things could be done by any Commission from the Parliament as the Condition of the Kingdom stood at that time Thus and several ways was the Question then stated and debated But the Truth is that if the Fundamental Government be by King Peers and Commons joyntly and that neither the Parliament consisting of these three States nor the Parliament as distinct from the King nor the King as divided from the Parliament could alter this Constitution nor lawfully act any thing contrary unto it then so soon as the Commission of Array on one side and of the Militia on the other were issued out and were put in Execution the Subjects in strict sense were freed from their Allegiance And if they acted upon either side their actings were just or unjust as they were agreeable or disagreeable to the Fundamental Laws and the general and principal end of Government For even then their subjection to the Laws of God and Fundamental Constitution of the Kingdom did continue and they were even then most of all bound to endeavour with all their power the good and preservation of their Country bleeding and conflicting with the pangs of Death And in that cause no man was bound too scrupulously to observe the petty Rules of our ordinary administration which were proper for a time of Peace which could not help but hinder her recovery In such an extraordinary case many extraordinary things if not in themselves unjust might have been done to prevent her ruine And if the Parliament had gone at first far higher than they did they had prevented the ruin of the King the dis-inherison of His Children and very much effusion of blood which followed afterwards The business then was easie which afterwards became difficult and could not be effected but with the loss of many thousands and the hazard of themselves for their Cause at first was well resented and had many advantages but was much prejudicial by too much intermedling with Religion and making some alterations in the Church before the time section 9 The next Question is whether since the Commencement of the War there was any certain ordinary legal Power which could induce an Obligation or there was any such Power after the Wars was begun it continued after the War was ended till the secluding of the Members and upon that seclusion ceased The answer unto these two Questions seems not to be difficult For there neither was nor could be any such certain ordinary legal Power which could in the strict letter of the Law bind all English Subjects to subjection For during a Parliament this binding power is in King Peers and Commons joyntly in the Intervals of Parliament it s in the King acting according to the Laws of Administration But all this while nay to this day there is no such Parliament no such King. And both in the time of the Wars and after both King and Parliament acted not only above but contrary to many of our Laws which in the time of Peace are ordinarily observed Neither of them could give us any Precedent for many things done by them and those few Precedents alledged for some of their Actions were extraordinary and Acts of extraordinary times If the Counties and People of England had not been ignorant and divided the division of King and Parliament did give them far greater power than they or their Forefathers had for many years But it did not seem good to the Eternal Wise and Just Providence to make them so happy Punished we must be that was his sentence and punished we have been yet few of us receive correction or return to him that Smote us Some
Dignity or Honour without any Power The nature of it consists in Power which hath several branches concerning which he relates the Opinion and Judgment of the Philosopher of Historians of the writers of Politicks of Lawyers and in the end delivers his own mind and reduced them to certain Heads in this manner Iura majestatis sunt Majora Defensionis Gubernationis in Minora de aerario colligendo Legibus condendis Magistratibus constituendis The first division is taken from the inequality of these Prerogatives and Rights The second he seems to ground upon these words That our King may judge us and go out before us and fight our Battels 1 Sam. 8.20 Where to Judge seems to signifie to Govern by Law and Officers to go out before us and fight our Battels presupposeth in his Judgment the power of the Militia To these he adds other two concerning the ordering of Religion and Coining of Money Under these general Heads he reduceth many other particulars and so proceeds to handle 1. the greater 2. The less Prerogatives severally and that largely This with the salving of some doubts and confuting some Errours is the Scheme and substance of the whole Treatise divided into three several Books section 8 Leaving every one to his own method I will with submission to better Judgment make bold to deliver my own Majestas est Realis quae potest rempublicam Constituere abolere mutare reformare Personalis quae agit cum exteris De Bello Pace Per Foedera Legationes suis circa divina religionem ordinando humanae leges ferendo exequendo This though not exact may serve the turn and in some measure declare the several branches of this great Power which in it self is but one yet hath many acts and the same different in respect of several and different Objects and Subjects I only mention the chief Heads to which the rest may be reduced for the better and more distinct understanding of it I will more particularly explain my self 1. Therefore Majesty is Reall Personal Real is in the Community and is greater than Personal which is the power of a Common-wealth already constituted For as you have heard before this form of a Common-wealth is virtually in it before it be constituted and their consent is the very foundation of it And this consent whether mediate or immediate tacit or express is so necessary that though a people be conquered yet the Victor cannot govern them as men without their consent Nay more when God designed immediately first Saul then David yet the election and consent of the people did concur with and follow upon the Divine Designation As this Real Majesty is a Power to model a State so it s always inherent and can never be separated insomuch that when a form of Government is dissolved or there shall be a failer of Succession the Power of the Soveraign doth divolve unto them by the law of nature or rather it was always in the people As this Community hath the power of constitution so it hath of dissolution when there shall be a just and necessary cause Hence appears the mistake of Junius Brutus Buchanon Heno and others when they say Ejus est destituere Cujus est constituere if they meant it of the multitude and body of the Subjects as Subjects under a form of Government it can only be true of a Community where they have just and necessary cause Subjects as Subjects cannot do it because of their Subjection and Obligation whereas the Community as a Community is free from any Obligation to any particular Form either from the Laws of God Natural or Positive or from their own Consent or Oaths And though the People in this consideration are bound both by the Natural and Positive Laws of God to constitute a Government if they can yet they are not bound to this Form or that Another Act of this Majesty in the Community is when they see it necessary and just and they have not only Power but Opportunity to do it to alter the Form of the Government this Act as with us is above the Power of a Parliament which may have Personal yet cannot have this Real Majesty For a Parliament doth necessarily presuppose a Form of Government already agreed upon whereby they are made the Subject of Personal Soveraignity Therefore they cannot alter or take away the cause whereby they have their being nor can they meddle with the fundamental Laws of the Constitution which if it once cease they cease to be a Parliament If the Government be dissolved and the Community yet remains united the People may make use of such an Assembly as a Parliament to alter the former Government and constitute a new but this they cannot do as a Parliament but considered under another Notion as an immediate Representative of a Community not of a Common-wealth And thus considered the Assembly may constitute a Government which as a Parliament cannot do which always presupposing the Constitution as such can act only in and for the administration That Community is wise which doth and happy which can keep their Majesty so due unto them as to limit their personal Soveraigns so as not to suffer them to take it from them and assume it to themselves section 9 As there is a real so there is a personal Majesty so called because it 's fixed in some Persons who are trusted with the exercise of it and may and many times do forfeit to God and in some cases forfeit to the Community or the People for when it is said it may be forfeited to the People we must understand that the People is not Plebs the meanest and the lowest rank and but a part of the Community but the whole Community it self as a Community otherwise we may lay the Foundation of all kinds of Tumults Confusions Seditions and Rebellions The Person or Persons trusted with the Majesty and Power are bound to seek the good of the whole People and for that end they are trusted with it and no otherwise Hence the saying Suprema lex salus populi esto The Acts of this Power which it hath a right to exercise are many and that in respect of those without or those within the Common-wealth For agit cum exteris it dealeth and acteth with those without This is not the first but rather the last kind of acting It ariseth from the relation which it hath to other States with which it may have some society though it hath no dependance upon it The Rules of this Acting as it respects themselves and the States with whom they deal are the Laws of Nations Yet the particular Laws of every several State may determine the Rules according to which it will act with or against another State. Because one State may wrong or benefit or strengthen and help another hence it comes to pass that sometimes there is a cause of War. For when by Ambassadours or other
Agents the State wronged demands satisfaction or Justice and cannot be heard then there remains no way but to hazard a War and defer the cause to God to decide it by the Issue which he shall give Sometimes a State may be unjustly invaded in which case there is no remedy but a defensive War. 1. To judge and determine of this War whether offensive or defensive to have the chief Command to grant Commissions to Press Men provide for Arms and Money to denounce and proclaim the War by Heralds belongs unto the Soveraign who is trusted with this Militia not only against foreign States but against Seditious and Rebellious Subjects 2. After a War begun and continued a Peace may be concluded and this is another Act of Majesty Personal 3. Because one State may strengthen help and benefit another hence Leagues of Peace and Amity and also for mutual offence or defence or for Protection or for Commerce Yet none of these are valid by the very Law of Nations but as made concluded continued by the supream Powers Personal 4. The Soveraigns of several States cannot in their own Persons except very rarely meet together and act personally face to face one with another neither is it convenient or expedient so to do Therefore a way and means dictated by the light of Nature hath been invented to act by others who are their Deputies and Representatives and these are called Ambassadours To send these whether ordinary or extraordinary and to give them Power and Commissions with Instructions and Letters Credential that their Acts may be valid is the right of Majesty Personal To this Head may be referred the sending of Heralds and Agents or Envoyes section 10 This personal Majesty and Soveraignty acts within the Common-wealth and with the Subjects as Subjects With these it acts 1. In matters of Religion For Magistratus est custos utriusque tabulae where by Magistrate we must not understand Officers but supream Governours as the word is taken largely by many Authors especially such as profess Theology For it is the Duty as it is the Right of Civil Soveraigns to order matters of Religion and that in the first place so far as it tends unto or concerns the peace and happiness of a State which depends much upon the establishment profession and practice thereof As they must order it so they must not only constantly and sincerely profess practise it themselves but as Soveraigns protect and defend their Subjects in the profession and exercise of the same so far as their coactive-force and Sword may justly do it This should be their first and principal Work which they should do not onely for the good of the people but their own happiness success and establishment in the Throne They are not to associate as Priests or Presbyters nor arrogate the power of making Canons Ordination Excommunication Absolution and such like Acts which are purely spiritual yet they may make Civil Laws concerning those things and execute the same and also ratifie by Civil Acts the Ecclesiastical Canons and punish such as shall violate the same Yet this right doth presuppose the Religion which they establish and maintain to be true and instituted from Heaven It 's true that the consciences of men are subject only unto God and to him alone are they answerable for their secret thoughts and opinions which men can have no certain cognisance of Yet if they broach errours in Religion and blasphemies and seek by communicating them by word or writing to seduce pervert infect others they disturb the peace of the State offend God and bring Gods Judgements from Heaven upon themselves who are guilty of such sins and upon the Soveraign and the subject of that State where they live And in this case though the consciences cannot be forced yet their estates persons lives are liable to the sword and in that respect they may and ought to be punished by the sword of Justice This is so a Right of Civil Soveraigns that we never read of any State of civilized people without Lawes concerning Religion and the worship of a Deity I confess this branch of civil Power is not rightly placed nor is the method exact because it comes in under the Heads of Legislation and Jurisdiction the matter of both which are Religion mens persons estates and lives section 11 After matters of Religion which are more spiritual and divine follow such as are temporal and humane Concerning these we have two acts of Majestie 1. Legislation 2. Execution of Laws made hence these two Jura Majestatis 1. A right to make Laws 2. A right to execute them This Power of making Laws is the principal and most necessary and doth inseparably adhere unto the Soveraign once constituted It was Jethro's counsel to Moses which with Gods approbation he followed to teach the people Laws that all Subjects and Officers might know their work and duty and the Rule which must direct them in all actions of Officers and subjects as such this was Gods order For after that he became their Soveraign and the people of Israel his subjects he proceeds to make Lawes Moral Ceremonial Judicial yet the personal Soveraign hath no power to make fundamental Laws concerning the constitution but only for the administration This our Parliaments if rightly constituted and duly acting for the publick good I honour as much as any man may take notice of Yet I may not presume to teach them much less correct them This Power is given by the consent of the people in the constitution who upon their submission become their Soveraigns subjects and are bound thereupon either to obey his Lawes once made or suffer This is not meerly a Power to teach and direct them but to bind them To this Head are brought the Power of repealing interpreting altering Lawes with Dispensations Reservations naturalizing granting Priviledges conferring Honours founding Colledges and Corporations Legitimation restoring the blood tainted and all acts of Grace as giving immunities exemptions tolerations indulgences acts of oblivion section 12 After Legislation follows Execution which in this place is not the execution of the Judges Sentence for that follows as a distinct act of Jurisdiction This right of Majesty is of far greater latitude and reacheth all acts that tend to the execution of the Laws which are in vain if not put in execution And because this cannot be done without Officers and Judgment therefore this comprehends under it The right of making Officers administration of Justice The making of Officers as without which the Laws cannot be put in execution is the first of these two By Officers I understand all such as are used by the Soveraign for to put in practice the Law and perform any publick act These may be either ordinary or extraordinary temporary or standing for Peace or War for to deal with forriegn States Such are all Dictatours Viceroyes Regents Treasurers Counsellours Judges Sheriffs Constables Captains and Commanders by sea
or land in time of Peace or Warre To these may be referred Heralds Ambassadours publick Agents with the rest which shall be mentioned in the second Book of this Treatise And because he is no Officer which hath not some publick power and this he cannot have of and from himself therefore all Officers are made such by the Soveraign who by granting Commissions and other wayes derives their power unto them And as he gives them power so he may remove them and revoke their power or translate them or call them to account To chuse nominate propose them may be an act of the people or some of them yet to constitute them and give them their political being is an act of Majestie either mediate or immediate And because the personal Soveraign and his Officers cannot do their duty and discharge their places without sufficient maintenance therefore in this respect there is a right to command the purse For as they say he that bears the sword must have the purse And if there be not a sufficient standing Revenue and Treasury determined in the constitution the Soveraign must have a power to raise monies to defray the publick necessary charges Hence that Vniversale eminens dominium of Majesty in every State so much mentioned in the Authors of Politicks The reason of this is clear in the very light of nature that the people maintain their Governours because the benefit of the Government redounds unto them according to that of the Apostle For this cause pay you tribute also for they are Gods Ministers attending continually upon this very thing Render therefore to all their dues tribute to whom tribute is due custom to whom custom Rom. 13.6 7. It 's true that Soveraigns may have their private purse therefore some distinguish inter aerarium fiscum Aerarium is the publick Treasury which is maintained by Tribute Custom and other Impositions and this is to be raised and disposed of by the supream for the preservation of the publick Fiscus as some tell is the Soveraigns private purse whereof he may dispose at will and pleasure This publick propriety presupposeth every mans several propriety and no wayes prejudice it This right is reckoned by some amongst the lesser Prerogatives but there can be no minora Jura Majestatis in proper sense For because Majestas is Maxima potestas therefore all the essential parts and rights are so too section 13 The last is the Power of Jurisdiction whereby Justice is administred and it 's over all persons in all causes both Military Civil and Ecclesiastical so far as they fall under the Soveraigns cognisance Under this Head I comprehend not only the power of those acts of Judgement more strictly so called as Convention Discussion Decision of the cause upon evidence of the merit or demerit but the Execution To which last may be referred all penalties as well capital as not capital with Dispensations in Judgement suspension of Execution pardons To this of Jurisdiction also belongs all reservations of certain causes the receiving last appeals the final determinations and irrevocable sentences By vertue of this Power Commissions for judicial proceedings Courts the order of trial from first to last all calling of Assemblies general and provincial Civil and Ecclesiastical are determined From all this it 's evident that all Jurae Majestatis may be reduced to the Legislative Judicial and Executive Power if we understand Judicial and Executive in a larger sense than they are commonly taken And here it 's to be noted that Majesty Real is before and above all Majesty personal And by personal Majesty or personal Soveraign I do not mean only one single person as a Monarch but all Aristocratical and Polyarchical Soveraigns who are many Physically but considered as one person morally as joyntly invested with one Power Soveraign section 14 Thus far concerning the nature of Majesty after which follow some Epithets given to Majesty by Authors to signifie the properties thereof These are either included in the essence or flow from it For 1. It 's absolute and so Arbitrary Absolute soluta legibus It cannot be bound by any Lawes nor judged because the Soveraign is the Lawgiver himself and the Fountain of Jurisdiction He may bind himself by Oath to govern and judge according to the Lawes not to be governed or judged by the Lawes Yet no Soveraign personal is free from the Obligation of the natural and positive Lawes of God in force and how far he is inferiour to the real Soveraign who is subject to the same Lawes I will not here discuss 2. It 's universal not only in respect of all acts of Government but of all persons within that Territory For it must be coadequate to the whole body which it must act and animate it 's neither greater nor less No persons things or actions within can be exempted from this Power nor can it extend to any thing person action without but per Accidens 3. It s supream not in respect of God nor of the power of other States but in respect of the power of Fathers Masters Officers Corporations and Societies within every several State. For by vertue of Majesty it is that Soveraigns are equal in respect of themselves superiours in respect of their Subjects and inferiours unto God whose servants and subjects they are trusted with a particle of his power and accountable unto him 4. It 's Independent yet not in respect of God upon whom all Soveraigns do not only chiefly but wholly depend but in respect of all subordinate Powers within but coadequate to them without For all power civil within the Territory is derived from Majesty Fiduciary Princes therefore as such are not Soveraigns though they may have the title of Soveraignty yet a Soveraign may be fiduciary for some part of a Country within and part of the Dominions of another Soveraign Neither can the chief Magistrate of a Commonwealth trusted at certain times with the general exercise of the Power be such Protection and Vassalage are conceived by some not to destroy Independency neither doth confederation For though the League between several States as in Switzerland and the united Netherlands Provinces may be strict and Commissioners may be made and trusted with great power in things which concern the several States jointly such the states-General of the Low-Countries be yet this is thought to be no diminution of Majesty For it remains entire in the several Republicks 5. It s indivisible for though it hath several branches which may be distinguished yet they cannot be separated For if you take away but one much more if you take away more you make it imperfect and essentially defective and insufficient to Govern For as in Philosophy Essentia est indivisibilis so in Politicks Majestas est indivisibilis sic Majestatis Jura sunt inseparabilia As these Rights are indivisible in respect of themselves so they are in respect of the Subject For divide and separate some of
some sort commanded by the Prophet Jeremy as sent from God to submit unto the King of Babylon and come under his protection section Majestas continuatur successione per electionem liberam indeterminatam astrictam familiae ubi mares solum foeminae quoque jure quasi haereditario succedant After a Title is once established by the Fundamental Charter and the first investiture care is taken how this Title may be continued that so not only the present but the future Sovereign and subject of personal Majesty may be determined and not only the State but the Sovereign thereof may become perpetual and immortal This can no ways be done but by Succession and this depends upon Election at least of the first Constitutors of the State which determines the successive Sovereigns to acquire their Title by Election or Birth or both If by Election only that many times is left free to the Electors to chuse out of what Family or Country they please Thus the Roman and also the German Emperors and the Kings of Poland acquire and receive their Power Sometimes the Election is confined to a Family or Line In this respect the Title is said to be Hereditary which is not to be understood as though the personal Sovereigns were absolute proprietaries of the Crown or had power of alienation but because they are like those who in civil Law are called Haeredes sui Heirs natural by Law and Birth who succeed into and by Birth acquire the right which their Predecessors justly had This Succession is sometimes tyed to the Males as in France sometimes is indifferent to Male or Female Children Thus it is in England where the Kings and Queens are said to have their Heirs which if we may believe the great Lawyer Sir Edward Coke upon Magna Charta are nothing but the Successors For Heirs saith he are Successors Yet surely he means Successors not only by Election but Blood. In this kind of Succession sometimes the present Sovereigns if they have Children may determine and declare which of them shall succeed them Thus David chose Solomon Sometimes it 's otherwise because by the Constitution it 's entailed upon the first-born or next of Blood. This seems to be the ancient right and custom of this Nation This may be the reason why King Henry VIII though he took upon him much of an absolute Prince would not presume of himself to define his Successor but desires an act to be made in Parliament for to enable him by Will to dispose of the Crown Yet such an act could not make void the Election used at the Coronation which hath something of the Constitution in it though it was made a meer formality section 5 Injuste usurpata dolo malo pecunia homicidio alio modo As Power may be justly so it may be unjustly acquired and this is usually called Usurpation which is the taking and keeping possession of that which is not our own or which we have no Right unto It 's true that in Civil Law it 's defined to be praepossessio juris controversi Yet in this manner of Usurpation that Right is seldom doubtful but for the most part clear enough The Power is always good because from God and the act thereof which is Government is good yet the manner of acquiring may be bad And it 's observable that many who have ill acquired have well used their Power It 's generally held That usurped Right and Power is no Right or Power because it 's not in his proper subject Therefore it 's conceived that Tyrannus in titulo such every Usurper is said to be cannot command and bind the people nor do any acts of Government which is valid and may justly be removed before the people acknowledge him or swear fealty to him And many think it unlawful to submit unto or act under an usurped Power Sometimes it may be so yet there are cases when we may nay we must submit and act too If Christians under the Heathen Emperors had stood upon such terms as some do in our days their condition had been far worse than it was For though they liked not Usurpation and the cursed means whereby many acquired their power yet this was their principle Non multum interest sub quorum imperio vivit homo cito moriturus si qui imperant ad impia vel iniqua nos non cogant Aust. de L.D. Blood Bribery Treason Rebellion unjust Invasions they abhorred as abominable and detested them as unfit means to ascend an Imperial Throne Yet it was not in their power to dispossess them once possessed and to establish better They knew God had reserved this unto himself Neither did they think that by submitting unto their power though unjustly gotten yet justly exercised that they were guilty of their sinful and unjust manner of Usurpation Concerning this unjust Acquisition of personal Majesty many things may be observed 1. There are few titles now especially such as are successive in a Line which did not at first begin in Usurpation 2. That the power it self with the just exercise thereof is a different thing from the manner of acquiring it 3. That one that hath the right in reversion may unjustly prepossess it and with us as the Lawyer tells us if the Heir apparent by murther or some other way remove the present just Soveraign yet so soon as he is possessed of the Crown he cannot be questioned and indemnity presently follows upon the possession Richard the Third is called an usurper and was so at the first yet his Laws and Judgments and other Acts of Government were and are judged valid after the Parliaments received him Henry VII cannot be acquitted from usurpation till the Parliament acknowledged him Neither his Victory nor Marriage with the right Heir could give him a good Title though this might conduce to his quiet possession He did never stand upon that Marriage as the foundation of his right unto the Crown for he knew well enough that if that had been his best and only Title that though it might make the Power good unto his Children yet while she was living he must hold the Crown in her Right not in his own and if she died before him it was lost 4. Many Princes have invented Oaths for to secure not only the form of Government but the Crown unto their own Posterity and Family And here it is to be considered whether these Oaths do not necessarily presuppose an higher Obligation of fidelity not only unto God but their own native Country to which they are bound to be faithful under any form of Government or personal Sovereign whatsoever If their present Allegiance cannot stand with the universal good it 's surely unlawful and unjust For the good of the whole is to be preferred before the good of a part and we are bound to love the whole body of the Community more than any Family or some particular persons Again it may prove sometimes impossible to
therefore termed Despoticum herile Imperium And such a Monarch seems to be that which by Aristotle is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 There be Princes invested with Majesty who challenge the Legislative power unto themselves will by a Proclamation or Edict command the goods of their Subjects and imprison their persons at will and pleasure These though they be limited by the fundamental Constitution and their Oaths are in the exercise of their power as absolute as the former This kind of Government may do well where the Subjects are turbulent insolent and unruly or of a base and servile spirit or rude and savage But where the people are ingenuous tractable and of a better disposition it 's very unreasonable for it will either cause Rebellions and Seditions or much debase their spirits This kind of Monarchy is apt to degenerate into a Tyranny of one person Yet if this kind of Sovereign be wise just and vertuous the people may live happily under his protection Yet such a power and so unlimited is not fit to be trusted in the hands of every one And if it be hereditary woe to the people that live under it Yet this power may be trusted in the hands of one yet so as that it may be allayed limited and justly and wisely poised and the Sovereign as a King. The word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Hebrew signifies a Governor in general 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek is a word of great latitude and so is Rex in Latin and also Sultan in the Arabick and Mauritanian Language Yet some are such imperious Dictators and Masters of words that the word King must needs signifie an absolute Monarch That it often signifies a Monarch and one that hath the title of Majesty there is no doubt But the bare word or title not distinctly inform us of the power or the manifold differences of Kings which must be known another way as by the constitution of those particular States where the chief and most eminent Governours have that title For there is a great difference and that in respect of power between the Kings of Spain and France and the Kings of Poland Swethland and Denmark Neither doth the King of England in this respect exactly agree with any of them But if the word cannot the definition surely of a King should determine his power Yet neither will the common usual definition do it For thus he is commonly defined A King is a Monarch who governeth free men justly according to the Laws to the good of the Common-wealth The Genus is that he is a Monarch And if such in strict senc◠as such he can have neither Superiour nor Peer in his Kingdom The specifical difference is taken from the Subject the rule the end of his Government For his proper act is Regere to govern The subjects of his Government are Freemen The Rule is just Laws The end the publick good Abstract the specifical difference and lay the word King and Monarch aside and it agrees to all Governours Civil whatsoever For Civil government being grounded upon the eternal moral Law Love thy Neighbour as thy self and more particularly upon the fifth Commandment no person or persons invested with Sovereign power can be defined any other way and neither their power nor the exercise thereof is good further than it agrees with this definition And the more their government swerves from this Rule the more of the Tyrant is in them and if the violation of it be more than their observation and that habitually too then they are really Tyrants in exercitio For denominatio fit a parte praedominante But I have wondred why Authors have made this the specifical difference of a King which certainly it cannot be Yet this definition leaves many things doubtful For it determines not what liberty is and whether it can be perfect without propriety Nor doth it tell us what these Laws are according to which he must govern whether the Laws of God only or the Laws also of men and if of men whether the Laws of constitution or administration if of administration whether they must be made by himself alone or by some others without him or with him For if the Laws be made by him alone he is an absolute Despotical Sovereign if by others either with him or without him he is not such For there may be a King at least in name above Law and a King by Law and such as cannot command or bind the meanest Subject nor judge him but according to Law. Such a King is not a pure Monarch which I now treat of Therefore a King that is a pure Monarch differs from a Despotical Sovereign in respect of his Subjects and the measure of his power and according to this definition in the exercise of it The Subjects of the one are free and have propriety of person and goods the Subjects of the other have neither The power of the one is more absolute and of larger extent or rather more intensive The exercise of the power of the one is bounded by just Laws the power of the other is not limitted or directed by Laws and so tends not so much to advance the weal of his Subjects as his own greatness and in this respect can be no lawful and good Governour if he act according to his absolute and arbitrary power which God never gave him And Despotical Sovereigns if wise and just will do as Trajan did that is act according to the Rule of Justice and of a limitted power though they be not bound by man to do so section 6 An absolute and pure Monarchy is a very dangerous form of Government and very inclinable and propense to Tyranny and such a Sovereign as is invested with such transcendent power degenerates and turns Tyrant Experience in all times and places makes this evident Monarchy indeed in some respects is the best Government Yet such is the imperfection and corruption of man that it proves not to be so If Monarchs were like God or Saints and Angels it might be better But in a succession whether elective or hereditary we find in tract of time few good many bad and very wicked In Israel the first King was not right the fourth too bad and after the Kingdom was divided into the Tribe of Israel and Judah in Judah we find few like David many very wicked in the Kingdom of Israel not one good Yet the Laws both Civil and Ecclesiastical were made to their hands and that by God himself Sovereign power is a weighty burthen and requires much strength and excellent abilities Moses himself cannot bear it alone he hath need of one hundred and Seventy Elders and the same endued with the spirit of government to be his assistants If a Sovereign be imprudent or weak of understanding not able to judge of good counsel or negligent or timorous or wilful or destitute of good Agents and Instruments for Administrations the Government begins to
State whereof he was sufficiently ignorant we English Men cannot well brook So Bodin being informed by Dellus who I think was Sir Thomas Dale a prudent and experienced Statesman and far better acquainted with the Government of his own Country than he was that the Kings of England could not make or repeal a Law without but only by the Parliament he wondred and notwithstanding his Information he presumptuously determines the Kings of England to be absolute Monarchs So much he doated upon his imperfect notion of Majesty and absolute Power Mr. Cambden though a learned Antiquary yet not in the common Law speaks doubtfully in this point and doth not well though perhaps prudently express himself His words are Quod Rex habet supremam potestatem merum imperium apud nos Yet afterwards speaking of our Courts he gives to the Parliament the supreme and sacred power in making conferring repealing and interpreting the Laws and in all other things which concern the good of the State. If he meant that the King had it jointly with the two Houses it 's tolerable yet if so 1. His former expression was not good 2. Neither is that latter assertion of his when he saith the Parliament is summon'd ad arbitrium Regis when the King pleaseth section 14 But let 's go to the Parliament where we shall find the King again and when we come there we must consider 1. What it is 2. What power it hath 3. What power it hath not 1. To give a perfect definition of it is above my skill neither is it within the sphear of my profession ancient Parliament-men and especially learned Antiquaries in the common Law know it best Mr. Cambden gives a tolerable description of it It 's a Representative of all England invested with the highest power of Legislation and all other acts that concern the common good This is the substance of the matter though not given in his express terms And here I will not say any thing of their Election Incorporation manner of proceeding after it 's once constituted and begins as a formal Parliament to act Some have conceived it to be one of the most orderly Assemblies in the World which is an argument of the great wisdom of our Ancestors who first molded it and brought it to perfection yet it may be corrupted and ill constituted and then Corruptio optimi est pessima The Election in our times is not well ordered for if it were the very quintessence of the wisdom and virtues of all England might be extracted united and act in that Convention But men are ready through want of understanding to undo themselves by choosing insufficient and unworthy persons The first constitution certainly required a qualification in the persons to be Elected For we trust them much even with our Estates Liberty Lives and Religion for the outward profession It 's not fit to trust these in the hands of any sort of Men but such as shall be wise faithful just and sincerely affecting the publick good The Saxon name Wittena Gemote implies this for it signifies the meeting of wise men and is the abridgement of all the Folk-motes in England and of the wisdom of all England and now of all England Wales Scotland Ireland If they should be wise men wisdom includes all virtues If we consider this great body as distinct from the King it 's said to consist of two Houses which some call the upper and the lower This the Commons did not like did not acknowledge The two Houses or the House of Commons and the House of Peers may be tolerable and I do not know they ever excepted against the expressions Many ungrateful and unworthy persons to their own wrong and prejudice have much depressed the House of Commons and are not ashamed to say such is their ignorance that it is but of late standing Yet it 's the chief part and almost the whole Representative the Peers to them are but inconsiderable Whatsoever is concluded there doth most concern them and the heaviest burden lies on them And though by Commons some may understand only the Plebeian Rank yet there we find in that House men of as good Birth Estates and as eminent vertues as many of the Lords be What the House of Commons is may be more easily known but the nature of the House of Lords is somewhat hidden For in it we find Lords Spiritual as Abbots Bishops and these by Tenure we find in it also Lords Temporal as Dukes Marquesses Earls Viscounts Barons And all these under the name of Lords Peers Barons though Bárones Proceres Nobiles do sometimes signifie other persons For we read of the Barons of the Cinque-ports Barons of the Exchequer the eight Barons of Cheshire and the Barons of Burford in Shropshire We find Peers sometimes taken in another sence and to include the Commons And the truth is if the whole assembly be considered as one Representative they are all Peers and in all acts should be taken so to be These Peers become such three ways as I observed in my answer to Mr. Hobb's For they are aut Foedales aut rescriptitii aut diplomatici Barons by Tenure and ancient prescription since the time of William the Elder or by Writ or by Patent It is not for me to debate much less to determine the Controversies about these Lords as 1. Whether they be essential parts in a distinct House from the Commons of the Parliament or no seeing Acts and Ordinances and the same valid are said to be made without these Lords not any by the Lords without the Commons 2. What these Lords may do or for what end they are called For some say they sit there as Judges of the King together with the Commons For though the King in his Politick capacity cannot do wrong yet in his Personal he may This Horne and Bracton with other of the old Lawyers will tell us in whom we may read of the Torts and wrongs done by the King and of judging him as also the Queen and the Prince 3. Seeing by the Writ of Summons they are called to deliberate and consult Consilium impensuri not ad faciendum consentiendum as the Commons are whether they be there only as the King's Counsellors 4. Suppose them to be the King's Counsellors whether they be such without or with the Commons 5. Whether they have any share in the Legislative power or if they have whether in the same House or in a distinct House and Body with a negative to the Commons or not 6. When this transmitting of Bills to the House of Lords began which some say to be after the Barons Wars For it was not so from the beginning 7. Whether the Lords and not the Commons have power to administer an Oath We read in Sir H. Spelman's Glossary in the word Baro that no Barons were called to the Parliament but such as held of the King in Capite 2. That all
many The Clergy and Ministry of England were never represented by the Knights of the Counties before our times neither could the Parliament without the personal presence of some of themselves impose Subsidies much less Ecclesiastical Canons upon them They are as free English men as any other and by the Laws of the Land have their privileges and immunities distinct from those of other mens which are now taken from them and it 's an hard case that they may have none of their own faculty and capacity as their proper Representatives to maintain them and speak reason for them They are willing enough to part with any thing formerly they had if not agreeable to Scripture 2. To prove this mixture the King's Coronation Oath might be alledged for he swears to corroborate the just Laws and Customs quas vulgus elegerit where two words require some explication 1. Vulgus 2. Corroborare That we may know what they mean. Vulgus some think doth signifie the Commons and then the Lords as of a distinct House can have no share in the Legislation except as some tell us they were represented by the Knights of the Counties whom with the rest of the Free-Holders they did anciently elect and contribute to their Charges whilst they sat in Parliament Vulgus in Latin is the same that Folk in Saxon and now remains in English from whence Folk-mote the City or Shire-meeting as the Parliament is the great meeting of all the Counties in England In this place it must be the Representative of the whole Community of England in one body all the members of the Wittena Gemote as united and distinct from the King. The word Corroborare doth not signifie to give the essence to the Law as though it were not a Law before or not a Custom but it signifies to guard keep defend observe the just Laws and Customs in the administration and to see them executed according to judgment It may be the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Greek which doth not give the being to a Will and Testament for it must be a Will before it be confirmed and so made effectual Confirmation is extrinsecal and accidental not essential to the Will or Testament The reason why the Kings did swear to corroborate the just Laws and Customs made approved chosen by the people was because that upon the dissolution of the Parliament the sword remained in his hands for to see the Laws executed which were ineffectual would lie dead be in vain without execution These words explained the matter to be observed is that if by Laws and Customs we understand the rules of administration not only as including a binding force but also as to be made effectual then it follows by the tenour of that Oath that the Legislative power which is the foundation and rule of all acts of administration was in King Peers and Commons jointly this is a mixture and a free State. 3. This mixture will farther appear from the manner of enacting for that was the manner in our days Be it therefore enacted by the King 's most excellent Majesty by and with the assent and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by authority of the same Neither is this new for the substance of it is ancient as Sir Edward Coke doth manifest in the cause of the Prince as Duke of Cornwall The Collection of the Statutes will manifest it for four hundred years For what if other terms were used yet they were in sense the same Neither did this begin in the Reign of Richard the Second or Henry the Third King Edward the Confessor's Modus tenendi Parliamentum will confirm the same to which my Lord Chief Justice Coke tells us the Conqueror bound himself Though Sir Roger Owen thinks this book but a Pamphlet yet my Lord Coke as good a Lawyer and Sir Henry Spelman as good an Antiquary as he were of another mind and thought better of it Nay it 's not only thus in making Laws but also in judgments which pass into an act And this kind of Judgment is the highest from which there lies no appeal This is the nature of the Constitution so far as my poor understanding is able to judge section 18 It remains I add something of our present condition since the times of our sad divisions After a long continued peace the light of the glorious Gospel many blessings and great deliverances from Heaven such was our unthankfulness so great the corruptions of Church and State that when God expected better fruits our sins were ripe for vengeance so that some fearful judgment if not the ruine of the three Nations did seem to approach or rather to be fatal and unavoidable And some of our Teachers and Watchmen seriously considering the eternal rules of providence and divine proceedings with the World in former times and knowing our present distempers did foresee this and gave us warning from those words of our Saviour Except ye repent ye shall all likewise perish Luke 13.3 Yet no warning given either by our watchmen from the Scriptures or the judgments of God upon Germany and the neighbour Nations round about us whom from our own shores we might behold wallowing in their own blood would be taken And even then when there was no danger from any enemy without and we were secure as enjoying the sweetest and most happy peace that could be expected on earth God looked down from Heaven with indignation and as though he had sworn to be avenged on such a Nation and so ungrateful a people he sent a spirit of giddiness amongst us and set the Egyptians against the Egyptians and made us Executioners of his own Judgment upon our selves for from our selves our miseries did arise For after a first and second pacification between England and Scotland the long continued Parliament began to reform both Church and State but found the corruptions so generally diffused and deeply rooted in the whole body that there was a greater fear of ruin than hope of Reformation and this some of our wise Statists had formerly observed was likely to be the issue They acted vigorously at the first but as some wise men thought too hastily and too high and seemed somewhat to encline to an extreme In the mean time no man suspecting no man fearing it brake out that bloody barbarous massacre in Ireland wherein two hundred thousand English Protestants are said to be murthered in one month In this the actors were Irish Papists and the sufferers English Protestants This could not quench the fire of dissention in England which began to manifest it self in the Parliaments Militia opposed to the King's Array which proceeded to a bloody battel at or near Keinton which continued till the King's party was wholly subdued in England himself put to death his posterity dispossessed of the Crown Ireland reduced with the ruin of almost all the chief and ancient Families
of the same and Scotland vanquished In all our sad divisions which happened from first to last and are not wholly yet ended to this day Two things are worthy the serious consideration of wiser men than I am 1. What party for time past hath been most faithful to the English interest 2. What course is to be taken for to setle us more firmly for time to come For the first we must understand what the English interest is The interest of England is twofold Civil and Ecclesiastical for we are English men and Christians The Civil interest is salus populi Anglicani there is no doubt of that for the peace safety liberty happiness of our dear Country is the end whereat we are all bound both by the written and natural Laws of God to aim The interest Ecclesiastical is the Protestant Religion and the perservation of the substance thereof Prelacy Presbytery Independency much less Antipaedobaptism and other Sects are not essential but accidental to it This being the interest of England we cannot judge of the faithfulness either of the King 's or Parliaments party by the quality of the persons of either side For there were both good and bad on both sides who had their several grounds of adhering to this or that party and their several ends and neither their grounds nor ends good Nor can any man justifie all proceedings and actings of either side both had their errours Nor must we judge of them according to their protestation for both could not by such contrary means attain the same end as both sides protested to maintain the King the Parliament the liberty of the Subject the Laws and the Protestant Religion Neither in this particular must the Laws of the English Constitution and Administration be the rule for both acted not only above the Laws but contrary to the latter of them at least For no Laws could warrant the Parliament to act without the King or the King without the Parliament much less was it justifiable that there should be in one Kingdom two not only different but contrary commands supreme and from different heads and persons This was directly against the very nature of all Common-Wealths which have only one first mover and one indivisible supreme power to animate and act them section 19 The Rule therefore must be the Laws of God as above the Laws of Men and we must consider according to these divine Rules what was the state of the Controversie the justice and equity of the cause made evident and the just necessity of doing that which was done Neither must we look at the cause only as just in it self but also how it 's justly or unjustly maintained For men may use such means as shall never reach the just end intended but also such as may be destructive of the cause it self and raze the very foundation of it Besides all this before a perfect judgment can be made the secret counsels contrivances designs hidden actings of the chief Actors should be known yet these many times lie hid and are not known or if known yet to very few and some of these few cannot found the bottom Many things are charged upon the King as acting against the English interest as Civil as that he dissolves Parliaments without just and sufficient cause that he intermits Parliaments for sixteen years together that having signed the Petition of Right he acts contrary to it imposeth Ship-money calls a Parliament signs the Act of Continuance deserts it calls the Members from it calls another Parliament at Oxford challengeth a negative Voice to both the Houses raiseth a War against it though he was informed that this tended to the dissolution of the Government that whosoever should serve to assist him in such Wars are Traitors by the fundamental Laws of this Kingdom and have been so adjudged in two Acts of Parliament 11 Richard 2. and 1 Henry 4. And that such persons ought to suffer as Traitors These with other particulars charged upon him seem directly contrary unto the civil Interest of the Kingdom Again to Marry a Popish Lady upon Articles directly contrary to the Laws of England and the Protestant Religion established by Law to entertain Twenty eight Popish Priests with a Bishop to tolerate Mass in the Court to receive Three Agents from the Pope one after another Pisano Con Rosetti to maintain the Queen-mother to engage the generality of the People of England to retard the relieving of Ireland to admit divers of the Popish Irish Murtherers and Rebels into his Army to call our English Forces sent to relieve the poor distressed Protestants of Ireland out of that Nation and employ them against the Parliament of England to suffer some of the Heads of the Irish Rebels to be so near his Person to endeavour to bring in the Duke of Lorrain with his Forces into this Nation to contract with the Irish Rebels upon condition to enjoy their Religion to furnish him with Ten thousand Irish Rebels to strengthen his party in England with divers other acts like unto these is conceived to be not only inconsistent with but plainly destructive of the English Protestant Interest And if this be true it must needs be so Yet it might be said that the King endeavoured to maintain his own regal Power the Episcopacy and Liturgy established by Law and that he did not oppose the Parliament but a seditious party in the Parliament and other Sectaries whose principles were destructive both of all civil and also Ecclesiastical Government and without the judgment of able Lawyers and learned Divines he did not undertake the War either against Scotland or England or any other It 's true that of those who adhered to the King and liked not the Parliaments proceeding there were some consciencious persons who judged the King an absolute Monarch and did not like many things done by that party yet they thought it the Duty of Subjects to suffer and that it was no ways lawful to resist But the Casuists say That Ignorantia excusat a tanto non a toto their Ignorance might make their Crime less yet no ways free them from all Guilt It was not Invincible they might easily have known that the King of Enland was no absolute Monarch seeing he could not impose any Subsidy upon the Subject nor make or repeal a Law without the Parliament neither could he by his Letters or personal Command revoke the Judgment of any Court. And though they might be Civilians or read Foreign Writers which take our Kings for absolute Sovereigns yet no ancient Lawyers no Parliaments did declare them to be such Nay they might have known that they themselves obeying the King 's personal Commands disobeyed him as King and that serving him in the Wars they were guilty of High Treason against the Kingdom and against the King's Crown and Dignity Of these Royalists some have been high and cruel against their Brethren the Parliamenteers and have censured them
Bodies Politick as Universities Corporations Counties Armies and Common-wealths This is God's way of Government which the wisest Governours did always imitate Thus Moses chose able men out of all Israel and made them Rulers over the People Rulers of thousands Rulers of hundreds Rulers of fifties and Rulers of tens And they judged the people at all seasons the hard causes they brought to Moses but every small matter they judged themselves Exod. 18.25 26. In this Text considered with the antecedent many things as proper to Government are observable 1. There must be Laws 2. Officers 3. Courts according to the tria Jura Majestatis of Legislation making Officers and Jurisdiction These presuppose a Community and a Constitution 1. There must be a power of making Laws that belongs to the Soveraign 2. Laws by this power must be made for Administration which without them must needs be arbitrary and irregular 3. Those Laws once enacted must be promulgated that they may be known 4. Once known they must regulate both the peoples obedience and the acts of Officers and judgment of the Judges After Laws once established they must be executed and that cannot be orderly and effectually done without a division of the people For 1. they must be numbred divided into tens fifties hundreds thousands tribes 2. They must be co-ordinate and equally poised tens with tens fifties with fifties hundreds with hundreds thousands with thousands 3. They must be subordinate ten to fifty fifty to an hundred and hundreds to thousands and all unto the whole When this is done Officers by whom these Laws must be executed must be made These must first be well qualified 2. The people must chuse them Deut. 1.13 3. Moses must appoint them their places assign them their circuits give them their charge 4. They must have their Courts and Sessions judge execute the Laws and be subordinate the lesser Courts to the superiour and all to the Supream For their Causes especially if difficult must ascend till they came to Moses and he brought them to God who was their Soveraign this was extraordinary But afterwards they had their Sanhedrim and Court of Appeals This subordination seems to be implied in those words of our Saviour Matth. 5.22 But I say unto you that whosoever is angry with his brother without a cause shall be in danger of the judgement and whosoever shall say unto his brother Racha shall be in danger of the council but whosoever shall say Thou Fool shall be in danger of hell fire One thing in all this is considerable That Moses did not make every Division nor every Court severally independent but subordinated all unto one supream Consistory A Multitude though National therefore is no impediment to good Government especially when they are numbred divided co-ordinated and subordinated and so by a certain and fixed order made one section 11 As a Multitude is no hinderance so neither is a national distance of parts For if we should enquire into the Constitution of the Chaldean or the Persian Empires of both which we might learn much out of the Holy Scriptures especially in the Books of Ezra both first and second called Nehemiah and Ester and Daniel most of all we should find 1. That the extent of them was far more than National and the distance of the parts far greater 2. That these were divided subordinated not only in the parts less to the greater but also in their Officers both for War and Peace the Revenue and the Administration of Justice and so by order united under one Head. The Empire of Rome the parts whereof were severed at a very great distance as from the River Euphrates in the East to the Ocean upon the West of France and from Aegypt Southward to the North of the Lesser Asia was according to their principles of Policy as well governed as any European petty State at this time is The Turkish Seigniory tho' of great extent is as well ordered as divers several Kingdoms Christian confined to a far more narrow compass Their order is good their strength great their Counsel which doth manage it politick their Laws for administration of Justice certain their divisions from matters of Religion few or none and their internal strength must needs be firm and the continuance of their Dominion hath been long Some attribute the excellency of their Government to their severity in punishments and their bounty in rewards yet though these add something yet these are but the least part The Dominions of Spain are many and scattered at a very great distance round about the Globe on both sides the Line within and without the Tropicks yet all these are subjected to one supream Judicatory and are tolerably governed and by a great deal of policy have been kept together till of late France indeed is stronger because divided into thirty Provinces it 's united in one Vicinity and subject to one Monarch Yet in these vast Dominions and great Empires the union of their many parts so distant did depend not only upon ordinary means but some extraordinary acts of Divine Providence From all this it 's evident that by division co-ordination subordination the supream power of one Nation nay of many Nations may be diffused through the whole Body so as to animate it and reach every part even the remotest section 12 Yet it may be objected that all the Members of a National Church can never meet together in one place and Assembly It 's true they cannot neither is it needful Joshua called and assembled all Israel when yet none but their Elders their Heads their Officers their Judges were called and convented Josh. 23.2 Upon which place Masius thus comments Cum dictum esset omnem Israelem fuisse convocatum ipsa deinde universitas ad eos deducitur qui populum omnem repraesentabant So that all Israel met in their Representative Thus David thus Solomon did use to convocate all Israel As our State hath its Wittena Gemot the Parliament which Cambden calls Pananglium so a National Church may have a general Assembly to represent the whole And this may be so composed as to be an abridgement and contraction of the quintessence of the wisdom piety and learning of a National Church This is a most excellent way for a Community to act by This may be both the terminus à quo ad quem of all these publick acts which are of weight and general concernment By this the Nomothetical Power is exercised to this by Appeal the highest causes are brought and finally determined yet here it 's to be observed that a Representative of the whole is not the whole properly but synecdochically and an Instrument whereby the whole doth so act yet if any thing be done amiss in a former particular Assembly the whole may correct it by a latter 2. That if the Constitution of a general Representative be right and the Members thereof duly qualified and act according to their qualification there will
any means positive to destroy it yet they neglect it and if every one should do as they do sit still and look on and do nothing it would certainly come to ruin and fall into the hands of those who are their Mortal Enemies section 7 The late Civil Wars in England did not only tend unto the Dissolution of the Government but actually for that time dissolve it For if the first Supream Power personally was in King Peers and Commons joyntly then it follows that when the King forsook the Parliament and refused to act joyntly with them it was dissolved much more when he set up his Standard and granted the Commission of Array and fought against them For then there were two contrary Powers and Supream Commands and the Subjects in strict sense were not bound to obey either And the Parliament did declare that whensoever the King should make War upon them it was a breach of the trust reposed in him by his People contrary to his Oath and tended to the Dissolution of the Government If the Government was dissolved it will follow that the Subjects were freed from their Allegiance yet the Allegiance due to the Community of England did continue and every one was bound to adhere to the just party according to the Laws of God though in doing so they could not observe the Laws of men And whosoever did oppose that just party did render themselves for ever uncapable of the benefit of the English protection and were ipso facto Enemies to their own Country their own peace and safety Yet the Parliament did not declare that upon a War made upon them the Government was actually dissolved because though that War tended to the dissolution thereof yet they conceiv'd that the form did remain still in King Peers and Commons and a considerable party of the Lords and Commons remained in the place whither they were summon'd by the King and by vertue of the Act of Continuance continued a Parliament and that the King's power was virtually in the two Houses Yet in this they passed above the Letter of the Law and followed the Rules of Equity and Reason and perhaps they had some hopes of rectifying the King and had no intention to alter the form if they could preserve it and keep it up But all their Wisdom and Endeavours could not prevent the Judgment that God intended to execute section 8 Whether the warlike resistance made by the Parliament against the King against his Commissions against his party was a Rebellion The King did declare it to be Rebellion and proclaimed the Parliament-party Rebels and Traytors yet he did not declare the Parliament to be Rebellious For so to have done had been offensive to his own party and he had a considerable party perhaps in both the Houses and if he did acknowledge it to be a Parliament in condemning them he must have condemned himself because he was an essential Member of the same Neither did the Parliament profess they fought against but for the King. Yet if they fought against such as were commissioned by the King they fought against the King and if the King declared the Parliaments party to be Rebels and Traytors he must needs judge the Parliament guilty because as he in his War was the principal Agent so they on their side were too This gave occasion of curious distinctions For men did distinguish between Charles Stewart and the King betwen his regal and his personal Capacity and on the other side between the Parliament and a party in the Parliament though the whole Parliament did Commission and Arm. Thus they found a difference between the King and himself and the Parliament and itself These distinctions were not altogether false yet though Charles Stewart and the King and so the Parliament and a party in the Parliament might be distinguished yet they could not be separated And woe unto the people that is brought into such straights and perplexities For if they kill Charles Stewart they kill the King and if the King destroy that party in the Parliament he destroys the Parliament But to return unto the Question it 's one thing to be Rebellion another to be judged Rebellion For that may be judged Rebellion which is not such and the same thing may be justified by one and condemned by another Arnisaeus handles this matter at large and makes the Question in general to be this Whether upon any Cause whatsoever it is lawful for the Subjects to resist or take up Arms against their lawful Soveraign When he hath stated the Question he determines upon the Negative and proves it In stating the Question he seems to define a Subject to be one who hath given his Allegiance to his lawful Prince But what he means per fidem datam is not made so clear Then he distinguisheth of Princes For 1. There are Regna pactionata where Princes are made upon condition 2. There are Regna absoluta where the Princes are absolute 3. There are Tyrants and that of two sorts 1. In Title as Usurpers 2. In Exercise These distinctions being made he grants That Princes upon condition may be resisted for their ill Administration 2. That Tyrants in Title before the Subjects bind themselves unto them may be opposed 3. That Tyrants in Exercise may be deposed and that by their Tyranny excidunt jure suo etsi haereditario divests themselves of their power though hereditary 4. That absolute Soveraigns who have potestatem non delegatam sed transfusam cannot be resisted lawfully though they be vicious and their Administrations impious and unjust if it reach not Tyranny which is directly against the Laws and Rules of Government and tends to the destruction of the Common-wealth But in all this Discourse he doth not produce any Authentical Record Fundamental Charter for these absolute Soveraigns which have omnem omnimodam potestatem à populo transfusam As for that Roman transfusion of power upon the Emperours it 's an uncertain thing Lex Regia doth no where appear it 's doubted of many as it is denied by many And suppose that people should be so unwise what 's that to others He seems to contradict his own Definition of a subject which I formerly explained he mistakes most grosly the Constitution of some States wherein he instanceth Whosoever will determine this Controversie or debate it to purpose he must 1. Define Subjection and declare the several degrees of it according to the several Constitutions of Common-wealt 2. If he instance in a particular State he must certainly know the Fundamental Laws thereof and truly express them 3. He must put the case aright and state the Question hic nunc rebus sic stantibus This resistance if Rebellion must be an act of a Subject as a Subject and that cannot be but against his Soveraign as his lawful Soveraign according to the Laws of God and just Laws of Men. And no man is able to justifie the Resistance of a