but hence it will not follow that he was bound to do so nay thence it will follow that neither he nor any of his Predecessors were bound to do so for then they that were the boldest in their demands that ever met and sate in Parliament would have claimed it as of right and not Petition'd for it as they did at least if they had vouchsafed to have Petition'd for it they would have called their Petition a Petition of Right which they did not So that by very Petitioning the King to grant those things which they proposed as agreed on by both Houses they acknowledged that the King was not bound by any Law Custom or Precedent from his Predecessors to consent to what both Houses had agreed on and consequently that there was no such Co-ordination betwixt the King Lords and Commons by the fundamental Constitution of this Kingdom as by the aforesaid Aâ—â—hor was pretended to be And therefo 〈…〉 in his answer to the Petition of the 〈…〉 the 19 Propositions which they pretend humbly to desire but indeed peremptorily press him to grant tells them That to say he is obliged to pass all Laws that shall be offered unto him by both Houses howsoever his own Judgment and Conscience shall be unsatisfied wiih them is to broach a new Doctrine a point of Policy as proper for their present business as destructive to all rights of Parliaments adding that it was out of a strange shamelesness that they would forget for sure there being so many Lawyers among them some of them could not chuse but remember it a Clause in a Law still in force made in the second year of King Henry the V. wherein both Houses of Parliament acknowledg that it is of the Kings Regality to grant or deny such of their Petitions as pleaseth himself And if it were so and acknowledged by both Houses of Parliament to be so in Henry the V's time I would fain know in what Kings Reign or by what Kings consent that Act or the aforesaid Clause in that Act which was in force so lately comes to be repeal'd or whether any Law or Act of Parliament can be either made or repealed without the Kings consent CHAP. XIII An Ordinance of both Houses no Law and consequently no legal Authority for the late War against the King The Militia or the Power of the Sword acknowledged by the two Houses themselves to be in the King A Sermon of Arch-Bishop Ushers in the Isle of Wight Preached to the same Purpose NOT a Law perhaps may Mr. Baxter say properly so called but an Ordinance of both Houses may and that without the Kings consent to it nay notwithstanding the Kings declaring and protesting against it oblige all the People of England to do or not to do what the two Houses will have them as much as any Law consented to by the King ever did or can do nay and may repeal any Law made by the King by the advice and with the consent of both Houses any Law or Custom to the contrary in any wise notwithstanding But per quam Regulam by what Rule Mr. Baxter By what Law of God or man can this be done Why by an Ordinance of both Houses which is equivalent at least to an Act of Parliament properly so called and so it had need to be Mr. Baxter and more too to warrant the doing of such things such horrible mischiefs and Villanies as have been done against God by Sacriledg against the King by Rebellion and by Subjects against their fellow Subjects by plundering and imprisoning and murdering one another of which side soever they were for all will be put to the account of them that had no authority I mean no legal and just Authority to warrant them to do what they did And therefore Mr. Baxter you were best be very sure that the two Houses had Authority to make such a War as they did not only without Commission from the King but against the King and to engage you and by you to engage so many thousands as you say they did in it You were best I say be very sure of it for it is not your head or your neck only which you say you are willing to hazard upon that account but your soul it self and the Everlasting Woe or Welfare of it that lies at stake for it Be not deceiv'd God is not to be mocked It is not the Confederacy of the two Houses it is not the Covenanting of the two Nations that can justifie either their commanding or their being obeyed in any thing which God hath forbidden or not allowed them to command or to be obeyed in by some known Law of his own or of the Land neither of which I am sure can be produced by them Moreover it is not the redressing of Grievances had they been as many or more and as great or greater than the House of Commons in their virulent and malicious Remonstrance to the People represented them to be nor the Reformation of Religion though there had been much more need of it than there was no nor the truly intending as well as pretending never so good or never so necessary an End for the publick Good either spiritual or temporal of the whole Nation that can justifie the Means they made use of if they had not Authority to make use of them I mean in their taking of the Sword out of the Kings hands where the Law of God and of the Land had placed it and taking it into their own notwithstanding Gods and mans Law to the contrary For the proof of the first part of which Assertion of mine I appeal to Mr. Baxter himself for amongst his many false and impious and pernicious Aphorisms he hath this true one that it is not lawful for a Nation to fight for the preservation of their Religion or their worldly goods and liberties without just authority and licence Whereunto he adds by way of exposition and illustration of his meaning That it is but a delusory course of some in these times that write many Volumes to prove that Subjects may not bear Arms against their Princes for Religion as if those that were against them did think that Religion only as the end yea or Life or Liberty would justifie Rebellion or that the Efficient Authorizing Cause were not necessary as well as the Final Where bearing Arms against Princes is warrantable quoad fundamentum as to the ground of it this will warrant it quoad finem as to the end of it A good End must have a good Ground Again for proof of the latter part of my Assertion namely that the Sword or the Power of making War was by Law in the Kings hand and not in theirs I appeal to the Acknowledgment of the two Houses themselves who after they had setled the Militia before the War was actually begun yet knowing and being conscious to themselves that they had done it illegally
to lie against our late experience to the contrary when Tyranny and Tyranny in the highest degree and under many several sorts of Tyrants was brought in without Popery and the Protestà nt Religion of the Church of England was not only suppressed and persecuted but endeavoured to be quite extirpated and for ever to be abolished by the greatest pretenders of enmity to Popery though indeed the greatest of its Friends and the most likely to be a most effectual means to bring it in by their then endeavouring to overthrow and by their now endeavouring to undermine the strongest Bulwark the Protestant Religion truly so called hath in the World against Popery I mean the Protestant Religion of the Church of England And as this Church of ours according to the present legal constitution of it both as to Doctrine and Government is the best fenced of any Church in the World not only against Popery but all other Heresies and Schisms some of them as bad if not worse both in their speculative and practical opinions than Popery it self is So the legal constitution of our civil Government also is I verily believe the best Government now extant in the World or perhaps ever was or can be for the keeping out of Tyranny or arbitrary Government of what disposition or religion soever the Prince or Governour in chief for the time shall happen to be of so the legal established constitution of the Government be not altered CHAP. VIII The Scotch Test an Assurance that there can no change be in Government either of Church or State The case of Protestants in Queen Maries time much different from what it is now FOR preventing whereof the best and as I verily believe the only effectual means that can be devised and put in practice is as I said before the making of such an Act of Parliament here in England as is lately made in Scotland viz. That for the future no Man shall be capable of any place power trust or profit Military Civil or Ecclesiastical or to choose or be chosen a Parliament man but he that will take such a Test as is there specified viz. That he will never give his consent for the alteration either of the Religion or the Government by Law established in the Church and State Which being once enacted I for my part cannot foresee how either Popery or Arbitrary I might add or any other Government or Religion prejudicial to the rights either of King or Subject can be brought in amongst us but by an absolute conquest of the whole Nation For as for Popery and Arbitrary Government the pretended Objects of our present fears that they will be brought in by a Popish Successor supposing there be any such if he be not excluded the aforesaid Act after it is enacted will make it impossible for him to effect it though he have never so strong an Inclination or desire to do it For if he endeavour to do it it must be either by force or fair means if by force it must be either by an Army of his own Subjects or of Foreigners if by an Army of his own Subjects it must be an Army of Papists only which being not one to 500. in proportion to the rest of the Nation and all of them excluded by the aforesaid Act from all places of Power or Trust will make but a very inconsiderable handful of Men to attempt and much less to effect any thing by force against the Body of the Nation whom we are to suppose to be obliged by the aforesaid Act not to consent to and much less to assist the bringing in either of Popery or Arbitrary Government So that if it be by force it must be by an Army of Foreigners and such an Army as shall be able to subdue the whole Nation and then he that brings them in cannot choose but fear they will subdue us for themselves and not for him and therefore will take heed of running such a hazard for any consideration whatsoever We are not therefore to fear it will be attempted to be done by force Nor that it can be effected if it should be attempted to be done by fair means neither that is by Law or by making any Act of Parliament for the introducing of Popery when there shall be an Act before in force to prevent any Man's choosing or being chosen a Member of the House of Commons that is not obliged by Oath never to give his consent to the passing of such an Act and all Popish Lords are already excluded from voting in the House of Lords But why may not a Popish Successor cause both these Acts to be repealed as Queen MARY did for the Reducing of Popery those that were made by Her Brother Edward the Sixth for the Excluding of Popery I answer because of the vast difference between those times and these Then the Protestant Religion was but begun to be planted in this Kingdom and had not taken root enough for the setling and growth and continuance of it much the major part of the People being still Popishly affected in their Hearts though they were by the Laws then in force restrain'd from the open profession of it as appear'd by their so readily and so gladly returning as most of them did to it and by their not only accepting but desiring and purchasing the Pape's Absolution for revolting from it So that it was very easie for Queen Mary to make that Alteration which she did by repealing such Acts and Laws as she found in favour of the Protestant Religion and to re-enact or restore such as were for the establishment of Popery which she found to have been repealed by Her Predecessor And to make this work of hers the more easie she did and could without any legal impediment to the contrary bestow all places of Trust Power and Profit Civil Military and Ecclesiastical upon such as were as zealous as she her self was for the suppressing of the Protestant and setting up of the Roman Religion instead of it Whereas now the Protestant Religion has been setled here in England for above fourscore years before the Rebellion and above twenty years since and the Popish suppress'd for twenty years longer even during all the time of the Rebellion it self whilst the Sectaries usurped the Supreme Power and whilst the Protestant Religion of the Church of England was suppress'd and persecuted also But all that while Popery was kept down and Presbytery was set up and spread it self so much in and over all parts of the whole Kingdom that we have much more reason to fear the alteration of Government both in Church and State by setting up of Presbytery instead of Episcopacy in the one and of a Commonwealth instead of Monarchy in the other than Popery or Arbitrary Government under a King in either as long as the Laws we have already against both are in force whereby all Papists are made uncapable
I mean the House of Commons presently after the Kings death yea and both the Cromwels also of which the former was resisted though not deposed and the latter was both resisted and deposed together with the several mock-Parliaments in both their times and the last mock-Parliament of all which by the admirable conduct and courage of that ever to be renowned and ever to be remembred Souldier and Servant of God the King and his Country I mean General MONK was shatter'd in pieces never to be sodred or re-united in order to restoring of the Soveraign Power to its only true and right owner the King For as for all or for any of the rest of those Soveraign Powers as Mr. Baxter calls them and which he magnifies so much they were as far from having any right to Soveraign Power as they were from being the best Governours in all the World as Mr. Baxter most falsly and I had almost said most impudently saith they were For let him name that which he thinks to have been the best of those Governments or Governours betwixt the assuming and usurping of the Soveraign Power by the two Houses of the long Parliament and the present King 's coming home And I will undertake as old as I am if God spare me life and health to demonstrate that they were not only as arrant Traytors and Rebels as ever were in the World but that in the managery and exercise of their usurped Power they carried themselves as hypocritically and blasphemously towards God in the use of his Name and his Ordinances as insolently insultingly and barbarously towards their King not only in their buying and selling and imprisoning of Him but even in their Addresses to him and treating with Him and withal as arbitrarily as despotically as injuriously and every way as tyrannically towards their Fellow-Subjects in taking away their Goods their Liberties and their Lives not only without but against Law as ever any Governours did whether justly or unjustly so called either in this or any other Nation But when I say this I would not be understood to mean what I say of all that sate in both or either of the two Houses of Parliament that made War against the King for I do verily believe there were many and I know there were some both of the Lords and Commons that after the King was driven away stayed and sate in both Houses and did what they could to hinder the rebellious and outragious proceedings of the factious Party which was predominant in the one House as well as in the other But the Tyde was too strong and those good Men too few to stemm the current or to prevent the overflowing of it as it did over all the banks and boundaries of Obedience to the Laws as well as of Allegiance to the King And therefore as Mr. Baxter when he tells us the two Houses of Parliament were the best Governours in all the World he tells us too that by the two Houses he means the Majority of the two Houses so when I say they were Vsurpers and Traytors and Rebels and as ill Governours or Managers of their usurped power as ever were before them in this or in any other Kingdom I mean the Majority of those two Houses only Which it was not my purpose to say so much of as I have said at present but my just indignation at Mr. Baxter's extravagant magnifying such men as they were hath carried me out of the way I was in which was to prove that neither those nor any other two Houses of Parliament can properly and truly be said to share with the King in the Soveraignty or Supreme Power upon the account of theirs as well as the Kings Legislative Power in making Laws for the whole Kingdom which as I have already proved is the Kings Act only by making Bills to be Laws by his FIAT or Assent to them thereby giving them that enlivening and obliging power which they had not before and which makes them to be Laws and this being solely the King's Act without any Act of either or both of the Houses in conjunction with it it is the King alone that makes the Law or that makes that to be a Law which was not a Law before how fit soever it might be to be made a Law whereof the King is the only final Judge also from whom there lies no appeal to either or both the Houses so that whatsoever Preparatory Act or Acts of either or both Houses may be necessary in order to the making of Laws antecedently to the King's Fiat yet it is the King's Fiat only that makes them to be Laws especially it being at his choice whether he will make them to be Laws or not after the two Houses have done what legally they can do towards it CHAP. V. Vpon Mr. Baxter 's grounds the KING may make Laws in some Cases without the consent of the two Houses Ship-mony justified upon the same grounds It is the King's Assent that makes Laws The Parliaments concurrence wherein it lies IF it be objected that as the two Houses cannot make a Law without the Kings Assent so neither can the King make a Law without the Consent of the two Houses and that therefore the two Houses as well as the King are the Law-makers For answer hereunto I will not say as Mr. Baxter seems to say when he puts the Question whether if the People will not consent to that which is necessary for their own Preservation the Soveraign may not do it against their wills and answers he may do it though he be not an absolute but a limited Soveraign and limited by Covenant that is as he expresseth himself in other places by an antecedent compact with the People when they chose or admitted him to be their Soveraign and consequently that even such a Soveraign notwithstanding such a compact as for instance that he will not nor shall not make any Law without the Nobilities and Peoples consent may of himself and without their consents make such a Law as is necessary for their Preservation or that he judgeth to be so for in this case he is and of necessity must be the only Judge whether it be necessary for their Preservation or no and therefore if he judge it to be so he may according to Mr. Baxter's opinion not withstanding any compact or Constitution to the contrary make such a Law not only without but against their consents as Mr. Baxter words it because saith he that Soveraign is God's Officer for the ends of Government and therefore cannot lawfully be restrained by the People from preserving them because the People have no power above God and because it is still to be supposed that the People desire their own Preservation and therefore mistakingly resist the means which else they would consent to This is one of Mr. Baxter's Political Aphorisms which if it be true my Answer to the aforesaid
maker of them And yet because he cannot make them but of such materials as are by the two Houses prepared and proposed unto him therefore they are said in the common and modern stile to be enacted not by the King only but by the King Lords and Commons that is by the King and the two Houses also to the end that the People who are to be governed by them may as I said before the more willingly submit to them when they know that although they are called the Kings Laws as being made by him yet the materials whereof they were made were first devised debated digested and agreed on and then suggested to the King not only by the Lords but by the House of Commons also that is by their own Representatives and Trustees and consequently in effect by their own selves when they know this I say they must needs be the more willing to submit to them CHAP. VI. The Preface of our Laws doth not prove the Legislative Power to be in the Parliament The Old stile of enacting Laws why changed by Henry the VIII and why since resumed AND this and no more than this is the meaning of the modern form of prefacing our Laws and Statutes which we call Acts of Parliament when they are said to be enacted by the King Lords and Commons assembled in Parliament and by the Authority of the same which I call the modern stile because antiently it was otherwise And therefore Mr. Baxter laying so much stress as he doth upon this form of words to prove the Legislative Power and consequently a principal branch of the Soveraignty to be partly in the Parliament meaning the two Houses of Parliament doth well and wisely to say that he will not run to Records for he knows if he know any thing in that kind that this was not the stile that was anciently used in Prefacing the Acts or Statutes made by our Kings in Parliament Ab initio non fuit sic from the beginning it was not so For from the first of our Parliaments recorded by Poulton which was in the 9th of Hen. III. to the 15th of Hen. VIII this stile of Be it enacted by the King Lords Spiritual and Temporal and the Commons in this present Parliament assembled was never used but during all that long Interval of Eleven Kings Raigns and the very many several Parliaments held by them the making ordaining and passing of Laws was in the Kings name only sometime with this addition by or with the Advice and consent of his Bishops Earls Barons c. without naming the Commons and sometimes by the advice of His Bishops Earls Barons c. at the request of the Commonalty or at the special request of the Commons and sometimes with consent of the Commons as well as of the Lords But still and always the making or enacting of the Laws is said to be by the King alone sometimes in these words We of Our meer free will have given and granted which is the stile of Magna Charta or the great Charter it self sometimes in these The King willeth and commandeth and sometimes in these It is by the King made provided and ordained This I say was the stile all along which was used in passing of Laws or Acts of Parliament until the 15th of Hen. VIII for about 300. years And then indeed it began to be changed from Be it Enacted by the King with the advice and consent of the Lords and Commons to Be it enacted by the King Lords Spiritual and Temporal and the Commons but not constantly For in the very next King's time his very first Act of Parliament Cap. 1. runs in the old stile viz. Be it enacted by the Kings Highness with the assent of the Lords Spiritual and Temporal and of the Commons And again in the same Parliament Cap. 4. it is said that at the humble Petition and suit of the Lords and Commons in that Parliament assembled the King did declare ordain and enact by the Assent of the Lords Spiritual and Temporal and of the Commons c. In the same old stile likewise runs the first Act of Queen Mary viz. Be it ordained and enacted by the Queen our Soveraign Lady with the consent of the Lords Spiritual and Temporal and of the Commons c. The like we find in the Raign of Queen Elizabeth as may be seen in the Act of Vniformity made by Her and prefixed in our Common-Prayer-Book to another Act of the same kind made by our present King For in that of Queen Elizabeth the stile is Be it enacted by the Queens Highness with the consent of the Lords and Commons in this Parliament assembled c. And in that of our present King it is Be it enacted by the Kings most Excellent Majesty by the advice and with the consent of the Lords Spiritual and Temporal and of the Commons in this Parliament assembled c. So that the first of the two Proofs Mr. Baxter alledgeth for the Legislative power in the Parliament as well as in the King and consequently their participating with him in the Soveraignty is not so convincingly conclusive from the stile used in the Preface to Acts of Parliament as he would have it thought to be but that it may without immodesty be contradicted though he tells us it cannot because saith he the Laws expresly speak their Authority when they say Be it enacted by the King Lords and Commons in Parliament and by the Authority of the same It is not saith he upon their Petition or Proposal only but by them or by their Authority But did the Laws anciently speak thus at all or do all of them speak thus in all our modern and later Acts I think I have given him Instances of both sorts to the contrary and such and so many Instances as must carry the Question if it be to be decided by the speaking of the Laws either in regard of their Antiquity or Plurality For as I said before all Laws made before Hen. VIII speak and speak expresly the King and none but the King to be the maker of them as may appear by the Instances before given and of many more that might have been given even as many more as there were Acts of Parliament during the Reigns of so many Kings for 300. years during which time I cannot find so much as one single instance of any Law which is said to be enacted by King Lords and Commons but by the King with the advice and consent of the Lords and Commons when most is ascribed to them I mean to the Commons for sometimes it is upon the request and sometimes upon the humble Petition of the Commons and with the advice and consent of the Lords that the Law is said to be enacted by the King So that if as I said before the question of who are the Law-makers be to be decided by the speaking of the Laws
themselves as Mr. Baxter calls it as either they are more venerable for Antiquity or considerable for Plurality the King and none but the King must be acknowledged to be the Enacter or the maker of them And truly one would think that those Laws that are most ancient and consequently nearest in time to the first Institution of Parliaments though they were not the most in number were most to be credited for speaking most properly of who they were that made them then and consequently who it is that makes them now Unless Mr. Baxter will say it was the King and King alone indeed that made the Laws in Parliament then but it is the King Lords and Commons or the King and Parliament that makes them now and consequently that the King is not so much a King now as He was then and that the constitution of the Kingdom it self is changed from Monarchical to Aristocratical But then I must ask him by whom and when this great change was made Was it by him that brought in this new stile of Be it enacted by the King Lords and Commons c. That was Hen. the VIII who was not a Man likely to give away any of his Authority or to part with any part of his Soveraignty to his own Subjects who rescued it from the Popes incroachments And yet perhaps even He meaning to make use of the Parliament for the countenancing whatever he had a mind to do though never so extravagant in it self though never so offensive to Foreign Princes his Allies or never so injurious to his own Children because he thought it would be serviceable to his own ends after he had forced the two Houses to consent to what he listed to enact to joyn them with himself in the enacting of it as well as by assenting to it to make it so much the more plausible or at least so much the less grievous unto the People Otherwise it is most certain that never any King of England after the making of Magna Charta reigned so despotically and arbitrarily as he did or whom the two Houses of Parliament stood so much in awe of as they did of Him as appears by his making them consent to the doing and undoing to the enacting and repealing of whatsoever he would have to be done or undone to be enacted or repealed And therefore it is not to be imagined that such a King as he was did mean by changing of the stile to lessen the Legislative Power it self which was in his Predecessors by admitting those whom he used as he did the two Houses of Parliament to a participation of any the least degree of Soveraignty And as he never meant to do so so they the two Houses of Parliament did not then or ever since for ought I ever heard understand that to be the meaning of the Alteration from Be it enacted by the King with the consent of the Lords and Commons to Be it enacted by the King Lords and Commons to signifie that either the Kings power as to the making of Laws was less or the Parliaments greater than it was before this alteration of stile For if it had been understood either by the King or Parliament to signifie any such thing as the King especially such a King as Hen. VIII was would never have suffered the alteration of the former to the latter So the two Houses who are jealous enough of their Power and Priviledges would never have suffered the alteration of the latter to the former again as it was altered by King Edward Queen Mary and Queen Elizabeth King Henry's three immediate Successors and as it is altered by our present King in the Act of Vniformity For as the alteration of the former to the latter could not have been made without the Kings so the alteration of the latter to the former could not have been made without the consent of the two Houses neither And therefore I verily believe that if any thing at all was meant by the alteration of the former stile to the latter it was only ad faciendum Populum to gain the People that the People might more willingly receive and submit to the Laws when they were made especially such of them as might seem to pinch them in their Purses when they were said to be enacted by the Lords and Commons or by the Lords and their Representatives and consequently by themselves as well as by the King for Volentibus non fit injuria where there is consent there is no injury And yet again lest by this alteration of stile and misinterpretation of it the Kings Prerogative of being the sole Soveraign and consequently the sole Law giver might be thought to be diminished by being communicated to either or both Houses of Parliament therefore the first most ancient and withal the longest continued stile of Be it enacted by our Soveraign Lord the King by the advice and with the consent of the Lords and Commons in Parliament assembled was presently after the first alteration of it resumed by the three next succeeding Princes as it hath been also now of late by our present Soveraign and by all of them with the consent of the Lords and Commons thereunto CHAP. VII The Laws enacted by the Authority of Parliament in what sense Why called Acts of Parliament They provide the Matter of the Laws the King gives the Form BUT withal will Mr. Baxter perhaps say with this Addition and by the Authority of the same that is by the Authority of the Parliament so that according to this former stile our Laws are said to be made and enacted by the Authority of the Parliament and consequently by the Authority of the two Houses of Lords and Commons as well as by the Kings For answer whereunto I might say in the first place that it was not till after 200. Years from the first Parliament that we read of in our Book of Statutes namely not until the Raign of Henry the VI. who owed his Title such as it was to the Parliament and to the Parliament as it signifies the two Houses only without the King for by the Authority of such a Parliament it was that is of a Body without a Head that Henry Bullingbrook was made King Richard the Second's surrender being neither voluntary nor lawful if it had been voluntary as was acknowledged by the two Houses themselves when Richard Duke of York claimed the Crown as the right Heir to it thereby acknowledging likewise that although they had de facto yet they could not de jure exclude the right Heir Howsoever their Authority being the only Title which the then present King had and held the Crown by as having not the courage either of his Grandfather or his Father to claim it by Conquest and hold it by force as they did He was willing to acknowledge he held it by Authority of Parliament as the word Parliament is taken for the two
Houses of Parliament without a King And this perhaps might be the reason why at first in that weak King's time to Be it enacted by the King with the consent of Lords and Commons in Parliament assembled was added and by the Authority of the same But this is not the Answer I rely on because this addition hath been continued ever since whereas the alteration I before spoke of did not as I have already showed And therefore 2dly to this Objection that when it is said Be it enacted by our Soveraign Lord the King by the advice and with the consent of the King Lords and Commons in Parliament assembled it is said also and by Authority of the same My Answer is that by the word Parliament is not meant the two Houses or the Lords and Commons only that is the Body without a Head but the Body with the Head to direct and govern it as the natural Head doth the Body natural and more than so for the natural Head though it directs and governs yet it doth not give its Being to the Body natural but the Parliamentary Head gives its very Being it self to the Parliamentary body as being made what it is by his Call and dissolved into what it was at his pleasure that is into so many single and private Persons as they were before as I have already shewed And truly if we mark the words well By the Authority of the same cannot be meant the Authority of those that are assembled in Parliament but of the Parliament it self wherein they are assembled which is as it is commonly truly and properly called the Kings great Council or the Kings High Court of Parliament It is by the Authority therefore of that great Council or by the Authority of that High Court that our Laws are said to be enacted But whence is it that this great Council or this High Court hath its Authority Is it not from the King Is it not from Him that makes them to be such a Council and makes them to be such a Court by his calling and assembling them together So that to say Be it enacted by the Authority of the Parliament is no more in effect than to say Be it enacted by the King in Parliament or Be it enacted by the Kings Authority in his great Council or in his High Court of Parliament For as all Inferiour Courts are and Act by the Kings Authority so is and doth the High Court of Parliament it self also for as it doth not nor cannot make it self no more than the Inferiour Courts do or can for if it did or could it might meet as often and subsist as long as they listed themselves so their acting when they are a Court is as the Actings of other Courts are if they Act as they ought to Act in and by the same Authority from whence they have their Being for Agere sequitur esse acting follows upon being as Mr. Baxter often but sometimes very impertinently tells us And therefore as in all other Courts because they are the Kings Courts the Judgments that are there given and the Decrees that are there decreed for interpreting applying and moderating of Laws already made are the Kings Decrees and the Kings Judgments because they are made by his Authority or by an Authority derived from him and delegated by Him and might if he pleased be executed by him in Person as some of them have been by some of his Predecessors so in the High Court of Parliament where Laws are to be made the Laws that are there made are the Kings Laws and that not only as being made in one of his Courts but made in a formal and solemn manner either by himself personally and immediately or by special Commission granted and authoriz'd by him to do it for him For it is the Le Roy le veult whether pronounced by himself or by any other authoriz'd by him that makes the Law So that it is the Kings Will and the King 's will only to have it a Law that makes it a Law and not any Act antecedent or subsequent of either or both the Houses of Parliament But why then are our Laws called Acts of Parliament Because as I said before they are made by the King in Parliament Yea but they are said to be Enacted by Authority of Parliament that is say I by the King's Authority in Parliament But they are said to be enacted by the Lords and Commons as well as by the King but it is not said they are enacted by the Authority of the Lords and Commons as well as by the Kings So that by enacting by Lords and Commons is meant by the Lords and Commons advising or consenting to the matter of them as appears by the indifferent use sometimes of one of the forms and sometimes of the other as I observed before Whereunto may be added that it is not unusual to ascribe the doing of a thing to Him or them that are but the advisers of it or consenters to it Thus we call that an Order of Council which is ordered by the King in Council or by the advice of his Council And thus St. Paul saith The Saints shall judge the World and Christ himself saith that his twelve Apostles shall sit upon twelve Thrones judging the twelve Tribes of Israel Yet it is certain as Christ tells us in another place that the Father hath committed all judgment to the Son and hath joyned none in Commission with him So that it is Christ and Christ done that shall absolve those that shall be absolved and shall condemn those that shall be condemned which are the proper Acts of a Judge quatenus as he is a Judge and therefore of none but him that is a Judge How then can the Saints be said to judge the World or the twelve Apostles be said to judge the twelve Tribes Why they do it by consenting to and approving of the judgment which shall be given by Christ whether it be the sentence of absolution or condemnation upon whomsoever it is pronounced So though it be the King and the King only that properly speaking doth make the Laws yet because he never makes any Laws but such as are agreed on and consented to by both Houses of Parliament therefore the two Houses of Parliament may in the same sence that the Saints are said to judge the World be said to make our Laws that is by consenting to the King 's making of them to be Laws But yet with this difference which is indeed no small one that Christ's judging of the World needs not the approbation or consent to it antecedently or consequently either of Saints or Angels but the King according to the legally established constitution of our Government cannot make a Law but the matter of it must be antecedently agreed on by both Houses of Parliament as a fit subject for the King to make a
against the Law of the Land also and were there or could there be such a Law it would be unjust in the present case and of dangerous consequence BUT if it be said that several Nations according to several Climates they live in may be of several Inclinations and dispositions and therefore that a Law which may be very proper and useful for one sort of People may not be so convenient for another and consequently that the Judicial Law which God gave to the Jews though it were best for them it may not be best for us or for any other Nation nay because it was best for them it cannot be best for all other Nations or for any other Nation that are naturally of a contrary or of another kind of temper or constitution than they were so that the Judicial Law of the Jews obligeth none but those for whom it was made and to whom it was given God having left it free to those that have the Legislative power in every Nation to make such Laws as they think most proper and most effectual for the well governing themselves so that they command nothing that is forbidden nor forbid nothing that is commanded by the Moral Law of God Be it so and be it supposed likewise though not granted that there is nothing in the Natural or Moral Law of God against disinheriting of the right Heir of an Hereditary Kingdom let us see whether there be any Law of the Land or any legal way according to the constitution of this Kingdom of ours that can warrant the doing of it unless the Heir of the Crown be guilty of some such crime as by Law is a forfeiture of his Life as well as his Birth-right which one Case excepted wherein the present Heir of the Crown is not so much as pretended to be at all concerned I demand first whether there be any Law now in being for excluding the right Heir of this Hereditary Kingdom upon the pretence that is alledged but not proved against him for if there be no such Law there can be no such transgression because every 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 must be as St. John tells us an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 every transgression must be a transgression of some Law or other and where there is no Law there is no Transgression saith St. Paul If it be said that though he cannot be excluded by any Law already made yet a Law may be made by Act of Parliament which may exclude him I demand again whether according to the fundamental and essential constitutions of Parliament there can be any Act of Parliament or any Law made by Act of Parliament without the Lords and the Kings consent to it as well as that of the House of Commons if not as yet there is not so more than probably there will never be any such Act pass or Law made the King and Lords having already declared their dissent from it But 3dly supposing the King and Lords should agree with the House of Commons to make a Law for the excluding of the next Heir of the Crown upon such an accompt as never any Heir of the Crown was excluded before nor by Law to be excluded and consequently for which he could not foresee that he deserved or was to be excluded I demand by what reason justice or equity that Law can be prejudicial to him or to any right of his all Laws being to look forwards and not backwards that is to enjoyn or prohibit something for the future upon such or such Penalties for the disobeying of them but not for the punishing of any thing that was done before there was any such Law for the prohibiting of it so that supposing but not granting that by such a Law the Heir of the Crown might justly be excluded from the succession for the future yet he that is Heir at present and was so before any such Law was made cannot as I humbly conceive upon such a pretence be excluded without violence done unto the Law as well as injury done unto himself If it be said that Salus Populi est suprema lex the safety of the People is the supreme Law and that the safety of the Kingdom doth require that as such a Law should be presently made so it should be presently executed also I answer that the Supreme Law is That no evil should be done that good may come thereof and besides that the safety and peace of the Kingdom would in all probability be much more indangered by the putting or attempting to put such a Law in Execution then it is yet or I hope ever will be for want of such a Law the present execution whereof would for fear of but a supposed uncertain future evil which many things we do see and many more we do not see may hinder put us into a real a certain and a present as evil a condition as any we seem to be afraid of and desirous to prevent I mean a present Civil War and perhaps a Foreign War too And then Dic mihi quis furor est ne moriare mori Tell me what madness is it to kill ones self for fear of being killed I say what a madness is it to run into a present greater evil to prevent a less that is to come and probably may not come at all CHAP. VII Supposing such a Law it would not be effectual for the keeping out of Popery and Arbitrary Government TO conclude supposing such a Law should be justly made and justly executed upon the preset Heir of the Crown and supposing too that Inconvenience from abroad and at home should not follow upon it for the present How would this secure us from the bringing in of Popery for the future unless the Act or Law should be made to extend to the excluding all future Heirs of the Crown as well as the present that might be suspected to be Papists though not legally proved to be so Would it not be easie for any future Heir of the Crown to defeat the efficacy of it and to avoid the Execution of it upon himself by concealing his being of that religion till he was King And then it is a known Maxime of our Law that the Crown takes away all defects in him I suppose it means that is the rightful Heir to it and against whom after he is King as no force can be used without a Rebellion so no Law can be made without Vsurpution the one being the taking of his Sword and the other the taking of his Scepter out of his hands so that if such a Law be made to extend to the exclusion of all future Heirs of the Crown as well as the present it would not be effectual for the keeping out of Popery and much less for the keeping out of Arbitrary Government or for the securing of the Protestant Religion unless we shall say that nothing but Popery can bring in Arbitrary Government which is
King cannot by his Fiat give it its factum esse till it be agreed on by the two Houses and because the two Houses by their agreeing on it do give it its fieri posse or make it ready and fit to be made a Law therefore it may truly though not properly be said to be made jointly by the King Lords and Commons because though it be not made by the Lords and Commons but by the King only yet it cannot be made without them neither that is without their doing something antecedently without their doing whereof the King cannot make Laws And this was that and all that which the late King meant when he said that the Laws of this Kingdom were made jointly by the King Lords and Commons that is according to the old Parliamentary stile by the King with the consent of the Lords and Commons or if you will by the King but not without the consent of the Lords and Commons But I hope Mr. Baxter who would be thought the Master of propriety and distinctness of speaking will not affirm that a thing can properly be said to be done by him or them without whose consent it cannot be done For I think it is one of the main matters wherein he differs or dissents from our Church that a Priest or Minister of the Word and Sacraments cannot be ordain'd without consent of the People will he therefore deny that it is the Bishop with his Presbyters that ordains him or will he say that he is jointly ordained by the Bishop and the People Certainly none but they that lay hands upon him have any thing to do in the Act of Ordination So that it doth not follow that because a Law cannot be made without the precedent consent of both Houses of Parliament that therefore they have any thing to do properly speaking in the making of it Again supposing Mr. Baxter is of the opinion of the Protestant Churches abroad that there can be no marriage without consent of Parents and supposing that opinion to be true yet I suppose neither Mr. Baxter nor any of the Ministers of those Churches will say that it is the consent of Parents that makes the Marriage though it cannot be a Marriage without it Many other Instances of the like nature might be given but this is enough to prove the thing we have in hand namely that though in some sence it may be said that our Laws are made by the King and Parliament or by the King Lords and Commons because they cannot be made by the King without the consent of the Lords and Commons yet properly speaking it is the King alone who by his LE ROY LE VEVLT makes them to be Laws in which Law-making Act of his neither of the Houses do joyn or are joyned with him and therefore the Laws so made cannot properly be said to be made by the King and them joyntly And yet because they cannot be made by the King without their antecedent consent to them and proposing of them they may truly be said to concur To the making though not In the making of them And this and no more but this was undoubtedly the late Kings meaning when he said the Laws were made here in England by the King Lords and Commons or upon their proposing such and such Bills being first agreed upon by them to be made Laws by him CHAP. XIV The making of Laws in the Roman State applied to Vs Mr. B. 's division of the Soveraignty rectified The King 's Negative voice asserted and the Enemies of Monarchy detected THus when the Soveraignty was in the People of Rome the Senate did concur to the making of Laws for the Common-wealth but did not make them they concur'd to the making of them by consulting and debating what was fit to be made a Law by the People as having no power to make it a Law themselves the making of Laws being an Act of Soveraignty and the Soveraignty being then not in the Senate but in the People and therefore the Senate did not so much as pretend to the making of Laws but only to the proposing of Laws to be made by a higher power namely that of the People as appears by the formal and solemn stile relating to the making of Laws in those times which was this Senatus rog at Populus jubet the Senate requesteth or proposeth namely such or such a thing to be made a Law but the People commands or enjoyns it that is the People maketh what was proposed by the Senate for a Law to be a Law And as this was the stile in relation to making of Laws in a Democracy when and where the Soveraignty was in the People so à paritate rationis upon the like reason and account in a Monarchy where the Soveraignty is in One the stile ought to be Populus rog at Rex jubet the People requests and the King grants And so indeed it was as I observed before according to the ancient stile used in our Parliaments here in England in divers Acts and Statutes wherein the King is said to give or grant sometimes at the special request and sometimes at the humble Petition of the Commons Neither doth the Alteration of the Stile at the Request to with the consent argue an alteration in the species of the Government for the King is still the sole Lawmaker or Lawgiver as much as he was before and consequently as much a Monarch though less Despotical and more Political in the managery and execution of his Kingly Power having by his Predecessors and his own voluntary and gracious condescension obliged himself not to exercise his Legislative power or to make any Laws without the consent of those that are to be governed by them which though it do not make him cease to be a Monarch or to have the Soveraignty or supreme power wholly and solely in himself yet it makes him cease to be an absolute arbitrary and despotical and to become a legal regulated and Political Monarch or a King that is to govern his People by Laws Laws indeed of his own making but not without their consent to them I mean without their consent by their Representatives in Parliament together with the consent of the Lords Spiritual and Temporal which all of them jointly are the Representatives of the three Estates or of that whole Body Politick whereof the King is the Head And as it is he that governs the whole Body so it is he that makes the Laws to govern the whole Body which because they are not made by the King without the consent of the three Estates representing that Body therefore Mr. Baxter thinks they are made by the three Estates as well as by the King and therefore that the Soveraignty is divided betwixt the King and them and consequently that this is no Monarchy but a mix'd Government which is the same mistake that Grotius as I said before
AND now I am come at last to the consideration of the last of those injurious Reflexions which in the beginning of this Book I observed to have been made upon me by Mr. Baxter and for the confutation of which I principally intended all that I have written though many other things which I thought not of at first occasionally falling in have made that which I meant should be but a small Tract to swell into a large Volume but now I am in and have gone so far I must go through with it The Reflexion therefore which I am now to speak of is in Mr. Baxter's Answer to Dr. Stillingfleet's Sermon towards the end of it the words are these I must say that when some Prelates made it their great business to silence shame and ruine us and drive us far enough from persons of power undertaking to preserve the Protestant Religion better without us than with us and after all cry out themselves that we are in danger of Popery by their own Pupils and Disciples whose instruction they undertook men will have leave to think of this awake and to judge of Causes by Effects These I say are the words of that Reflexion which I complain of as intentionally aimed at me though obliquely and by circumlocution onely especially in the latter part of it For as for the former part of that saying of his where he speaks of some Prelates that made it their great business to silence shame and ruine them that is him and the rest of the Dissenters though I doubt not but he means me for one of those Prelates and one of the chief of them because he tells me and the Bishop of Ely in plain terms that we two of all he knows have effectually helped to bring them under yet I do not take my self to be peculiarly concern'd in this whether it be truly or falsly averr'd by him and therefore though I could tell him and tell him truly and prove it too that I never made it any of my business to shame or ruine him or any of the Dissenters or to silence any more of them than by Law I was not onely allowed but obliged to silence though I could say this I say and more too to prove that I never did any the least injury to any of them but have shewed kindness to some that had dealt hardly with me namely to Mr. Langley of Pembroke College who having gotten into my Canonry of Christ's Church in Oxford never allowed me one penny out of it during above 12 years I was abroad nor after I came home made me any recompence yet thinking I was one would doe good for evil he had the confidence to write to me and to intreat me to befriend him for the renewing of a Lease he held of Magdalen College as being their Visitor I did it for him Though I say I could make proof of this yet I will not insist upon it that which I except against is a false and injurious reflexion upon me particularly being contained in the words that follow viz. driving us that is him and those of his Party far enough from Persons of power undertaking to preserve the Protestant Religion better without us than with us and after cry out themselves that we are in danger of Popery by their own Pupils and Disciples whose instruction they undertook themselves and then concludes men will have leave to think of this awake and to judge of causes by effects This I say is the Reflexion I complain of as false and injurious and as being my self more particularly aimed at in it than any other of the Prelates he before spake of For though here as well as there he makes use of the plural number as if he meant what he saith of more than one yet that which he saith of them he knew would be understood by those by whom he would have it to be understood to be meant of me or if not of me onely yet of me principally and especially because he and others perhaps of his Party had heard from Mr. JONES and others from them that I had caused the said Mr. Jones to be put out of the Duke of York's service having been before a Chaplain to his Royal Highnesses Family to his Family I say for he was never any of the four that were properly and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by way of eminence called the Duke's Chaplains but onely one of the two who were daily to efficiate in the Duke's Chapel to the Houshold whether He or the Dutchess were there or no so that Mr. Jones was not so great a man either in place of attendance or in grace and favour with either of their Highnesses that either his stay could hinder or his remove could further any design that I or any man else might have had upon the Duke or Dutchess in order to the seducing or perverting both or either of them in matter of Religion And yet this Mr. Jones was the man and I verily believe the onely man Mr. Baxter thought of though he speaks in the plural number here also as if we the Prelates had driven them that is all or many of them far enough from persons of Power Now I would fain know of Mr. Baxter what one man of their Party was ever driven away by any of the Prelates from any person of Power or was ever said to be so but this Mr. Jones onely who was never thought to be one of their Party whilst he was in the Duke's service I am sure he profess'd the contrary and if he had not I am sure he could not have been admitted into the Duke's service as no man else could either into the Duke's or into any other persons of power the Law not made by the Prelates but by the King in Parliament I mean the Act of Vniformity having made all of that Party as long as they were of that Party uncapable of being Chaplains or Schoolmasters in Noblemens or in any great mens Houses and therefore there was no need of the Prelates driving them farther from persons of power than the Law had driven them already Neither was it for his being one of them though perhaps he was one of them in his heart that Mr. Jones was put out of the Duke's service but for behaving himself otherwise than he ought to have done in it but how that was I forbear to say because he is dead onely I must say that I was neither Judge nor Witness nor Plaintiff nor Defendant nor any way a party in the case no nor knew not any thing of the matter it self or of the cause of it untill after it was done as Dr. Killigrew then Clerk of the Closet to the Duke and Dr. Turner then and now one of the Duke's Chaplains will I doubt not be ready to testify if it were tanti worth the while to call them to it But first that it was this Mr. Jones
them Laws by giving them an obliging power The King alone our Lawmaker Dr. Sandersons judgment in the case His Commendation for an excellent Casuist 1 Ep. Tim. Cap. 4. v. 3. The design of Mr. B. 's Holy Common-wealth He intitles the Vsurpers to the whole Soveraignty By the King 's having lost his part Vid. H. C. Thes. 145. 363. Thes. 368. And this too against a Thesis of his own Thes. 374. Mr. B. 's Thesis further examined Who in Mr. B. 's account the best Governours in all the World See the Preface to the Holy Common-wealth Whom yet he owns to be Intruders and Vsurpers II. C. p. 86. Thesis 375. His strange shuffling and self-contradiction A short account of those Vsurpers Mr. B. 's flattery to Oliver His compliance with Richard Three Remarks upon it His Eulogy of the Vsurpers * Pref. to Holy Com. W. Mr. B. rebuked for his Extravagance and his best Governors challeng'd All that slaid and sate in Parliament not censured The Recapitulation of the Legislative power being only in the King An Objection Mr. B. 's opinion that a Soveraign though limited by compact may act for the Peoples safety against their consent And why not make Laws then for that end without their consent His reason for that opinion v. p. 119. Thes. 120. The Answer according to that Opinion Ship-Money justified upon Mr. B. 's grounds The Bishop's own answer Though Laws are not made without the Peoples consent in Parliament yet that consent doth not make them Laws Ordinances of themselves not Laws The King's Assent gives being to the Laws How the two Houses concur to the making of Laws The matter of the Laws from the Parliament the Form from the King Why the Laws said to be enacted by King Lords Commons The Modern stile of enacting Laws H. C. p. 46â— The Antient stile or form When the change began The Old stile resumed afterward Mr. B. 's Argument for the Legislative power in the Parliament from the Preface of our Laws unconclusive Holy Com. p. 462. All the Ancient and several Modern Instances against him Why Henry the VIII changed the Old stile His meaning in it could not be to part with any of his Soveraignty Nor was it so understood by either King or Parliament Most likely it was to please the People Why the Old stile resumed since An Objection Those words And by the Authority of the same when added and why The Answer By Parliament here meant not Lords Commons only without the King What meant by the Authority of the same The Parliament the King 's great Council and High Court. Their Authority from the King They act in that respect as other Courts do Why our Laws called the King's Laws Why called Acts of Parliament Advice or consent sometimes intitles to the Act. 1 Cor. 6. 2. Matth. 19. 28. Joh. 5. 22. The Saints judging the World applied to this case The difference in the Case The four Causes of our Laws viz. Efficient Matter Form and End of them explain'd What kind of Cause the Consent of the two Houses is The Legislative power and the Soveraignty in the King only Two Conclusions of Mr. B. 's upon his supposition of the Soveraignty divided The Eastern Monarchs not altogether Arbitrary What it is denominates a Monarchy No Judicatory above the King The Parliament no such Judicatory The King can do no wrong how meant Another Maxime to that purpose King David accountable to God alone and punished by him David 's Monition to Kings The Peoples priviledge of consenting to their Laws a favour at first of the Kings William the Conqueror made Laws without their consent Parliament first so called in Henry I. time An antecedent compact of the People with the King a political whimsie of Mr. B ' s. Mr. Hobbs and Mr. Baxter agree The extreme unlikelihood of the supposition Our Government at first arbitrary T is likely the Custom of not making Laws without the Peoples consent began under Henry I. with that other of not raising Mony without their consent However it was it was not by Compact but by Grant Mr. B. 's vain and false distinction of two capacities in the People as Free and as Subjects H. C. p. 459. H. C. p. 458. Some Rights he saith reserved by the People in their Contract and the Parliament their Trustees Government not alway founded upon Contract as Mr. B. saith it is A free People as well as a free Man may give up themselves to be govern'd without any reservation of Rights Several free People have done so Grotius de jure Belli ac pacis Particularly in our Government no such thing as Contract or Reservation off Rights The Peoples Rights not by bargain but by Grants of their Kings The People had no Representatives till Henry I. Vid. Daniel's Hist. Baker's Chron. Mr. B. 's supposition a meer fiction The Priviledges and Representatives the People now have are not by any antecedent Compact The Peoples being represented in a double capacity as Mr. B. fancies made an Argument by him to justifie the late Rebellion Holy Com. W. H. C. Thes. 361. The King's Coronation Oath doth not prove any such compact or Reserves c. as Mr. B. affirms This made out in three Considerations Mr. B. makes the King a King in name only He hath no authentick Record for such a Contract as he supposeth Holy Com. W. p. 377. H. C. p. 468. Nor for the Parliaments being the Peoples Trustees for their reserved Rights Were the Original constitution such as Mr. B. makes it the King would not be sole Soveraign nor Soveraign at all A brief account of the Government and its changes during the Vsurpation till the Kings Return A serious Expostulation with people for their uneasiness Numb c. 14. v. 4. No reason for it The pretended ground of it The ill effect of causless fears The Constitution of our Government The Subjects Rights and Priviledges Their representatives in Parliament The duty of those Representatives How to act as Trustees also An even Balance to be kept betwixt Prerogative and Priviledge The King compared to a Father and a Husband Two observations of Grotius De jure Belli Pacis cap. 3. p. 81. lb. p. 83. Applied to Mr. B's main principle How it came that Laws are not to be made without a Parliament When our Monarchy began to be Political Yet still a Monarchy A mistake in Polybius Grotius de jure Belli pacis lib. 1. cap. 3. Sect. 19. We are to judge of a Government not by the Managery but by the Soveraignty of it Ib. This Rule applied to the English Monarchy The happy condition of English Subjects An Account of a Sermon the Bishop preacht before the Long Parliament in commendation of the English constitution both in Church and State The reason why this Account given Church and State both subject to the Monarchy Popery and Presbytery both destructive to Monarchy Two Supremes in one Kingdom
it was not made against the King but against his evil Councellors and other his Delinquent Subjects only CHAP. III. Another ground of Mr. B's justifying the late War that according to our constitution the King is not sole Sovereign disproved The Act for the Rebel-Parliaments sitting censured All Kings properly so called not accountable to the People but to God only AND this doth farther appear by the little confidence he himself seems to have in this Topick For supposing as he had all the reason in the World to suppose that the aforesaid Declaration of the Parliament as he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 abusively and falsly calls it would signifie nothing with considering and understanding men as to the justifying of the late War from being a down-right Rebellion as indeed it was he seems to quit this as an indefensible Out-work and retires to that which he thinks to be a much stronger Hold and which if he can maintain he thinks that though he should grant the late War to have been made against the King yet it was not could not be a Rebellion because it was not made by Subjects against their Sovereign For the King of England saith he according to the constitution of our Government is not our sole Sovereign but there be others that be partners with him in the Sovereignty it self and of this he is so very confident that he saith in positive and express terms that if any man can prove that the King was the highest power in the time of those Divisions He will offer his head to justice for a Rebel Which saying of his seems to require some animadversion upon it as not being an absolute denyal of the Kings Sovereignty or of the Kings being the highest Power but of his being Sovereign or highest Power during those times of division only which seems to imply that he was even in Mr. Baxters opinion the Sovereign or highest Power before those times of division And if this be his meaning as it must be if there be any meaning at all in those words then it is not from the Constitution of the Government as Mr. Baxter saith it is that the King I mean our King of England is not the Sovereign or the highest Power always and in all times and to all intents and purposes but it was from the Alteration of the essential Constitution of our Government and from the iniquity of those Times and Persons that made that alteration that the King did not nor could not then exercise those Acts of Sovereignty or Supreme Power which was as legally invested and as inseparably inherent in him even then as ever it was before For though the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Power might and was yet the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Authority was not nor could not be taken from him but by taking away his Life also Unless Mr. Baxter will say and there seems to be some such secret intimation in that saying of his I last quoted that the King himself gave away his Sovereignty or that he made his two Houses of Parliament partakers with him in it when he passed an Act for their sitting until They themselves should be willing or content to be dissolv'd I confess this was a very great alteration in the very fundamental constitution of the Government and I confess the King passed such an Act the very great streights he was then in together with the minatory importunity of the two Houses backt by the insolent and tumultuous behaviour of the Multitude necessitating him as it were to do that which never any of his Predecessors did before him and I hope never any of his Successors will do after him I mean to pass such an Act as that was Although that Act gave neither of the Houses singly nor both of them jointly any whit or jot of more Power but only of sitting longer than what They or their Predecessors had before or their Successors now have And I hope Mr. Baxter will not say that is a Power to repeal Acts to make Ordinances of equal validity and obligation with Acts without the Royal Assent to them to raise Armies and Monies to maintain them upon their fellow-subjects and against their fellow-subjects and against the King himself also Did the Act that gave them a Power to sit until they thought fit to be dissolved give them Power to do all or any of these things before specified and many other as bold as bad and as illegal as any of those were or because they had leave to sit as long as they listed had they leave to do what they listed also No no it was their ingrateful and ungracious abuse of the Kings too gracious favour to them that was the cause of all those evils that afterwards upon that occasion befel Him and the whole Royal Family and all his Loyal Subjects And therefore of all the Acts that ever that good King did I take the passing of the aforesaid Act for the sitting of the two Houses not during his but their own pleasures to be the worst not only in point of prudence and policy as most prejudicial to the Crown and Government in general but in point of Right and Justice also to all and every one of the rest of his Subjects I mean as many of them as were capable of chusing and of being chosen Parliament-men who were all of them by the passing of this Act excluded from having what was due to them in either of those capacities and consequently from the Rights and Priviledges of Free-born Englishmen as long as those Parliament-Men that were then in being should please to sit and that might be ar was as We saw afterwards as long as they lived or at least as long as they could I mean till the Army which they raised made them to rise whether they would or no and yet there want not some that say they are still in being But to return from this digression because it is not upon this particular occasional alteration of the Government that Mr. Baxter doth openly and professedly ground his denyal of the Kings Sovereignty here in England but upon the fundamental and essential constitution of the Government it self and consequently he denies England to be a Kingdom and our King to be a King properly so called For he himself defines a Kingdom to be such a Common-wealth or body Politick as hath but one Person only for its Sovereign So that according to this definition all Kingdoms that are Kingdoms indeed are Monarchies and all Kings that are Kings indeed or Kings properly so called are Monarchs I say Kings properly so called because some have been called Kings who were really no Kings as the Kings of Sparta or Lacedaemon were who were but Generals of their Armies only the Sovereign Power of the State being in those that were called the Ephori or Overseers to whom those they called their Kings were
a most illegal and insolent and impudent Invasion and Vsurpation of the Kings authority in the one nor of a most Trayterous avowed and bold-faced Rebellion against the Person as well as the Soveraignty of the King in the other and consequently that all that assisted them whether it were with their hands or with their tongues with their Swords or with their Pens with their prayers or with their Purses were as arrant Traytors and Rebels as they were Whereas if Mr. Baxter can make it evidently to appear that there was such an Original constitution of Government by such a compact or contract betwixt the People on the one part and the King and his Successors on the other part and that by virtue of the said Original constitution the Parliament was appointed and agreed on by both Parties to be such Trustees for the People as he saith the Parliament was we are now speaking of and that they might legally do what that Parliament did for the discharging of their Trust If he can make this I say evidently appear from any authentick Record I must and will confess that the Government here with us is indeed no Monarchy and that not only for the reason given by Mr. Baxter because the whole Soveraignty is not in one Person namely in the King but partly in the King and partly in the Parliament but also because according to Mr. Baxter's supposition the Soveraignty is not at all in the King but wholly in the Parliament as it was in the Ephori in Sparta and as it is now in the Senate of Venice But thanks be to God it is not come to that yet though it were once very near coming to it when they had gotten an Act to sit as long as they listed and took upon them to make Laws to raise Mony and to make War and consequently to play REX as we say by exercising all the Acts of Soveraignty and by pressing the King to devest himself of them by making another Act not only to justifie what they had done but to enable them to do the same things for one and twenty Years more And by that time the Monarchy would have been like an old Almanack worn out of date and either an Aristocracy or rather a Democracy not only set up but setled instead of it as we saw it was assoon as the Monarchy by the Murder of the then Monarch seemed to be quite down the House of Commons assuming and usurping to themselves the whole Government of the Kingdom without King or Lords which the Lords as well as the King ought to remember calling themselves a free State and behaving themselves as such both at home and abroad for the short time of their Raign which was until their Servant made himself their Master by making use of that Army for the pulling of them down which they were forced to keep in pay at the excessive charge of the People for the keeping of themselves up And then They and the People too saw and felt the difference between a legitimate and legal Monarchy and the despotical Arbitrary Government of an Vsurped Tyranny which made them wish and pray and long for the Return of the right Heir and the restoring of the right Government having found by woful experience that every change they had made was first from good to bad and then from bad to worse and lastly from worse to worst of all I mean the Rump-Parliament that so having made tryal of them all they might be the more careful to hold fast the best if God should be pleased to restore it to them again which in his infinite goodness and mercy he hath done and that in a strange and almost miraculous manner by making the Thieves fall out amongst themselves in dividing of the spoyl that so the true Owner might have what they robb'd him of again The End of the Fourth Section SECT V. An Expedient proposed for the preservation of our Government and Religion as now by Law Established from Arbitrary Power and Popery or Presbytery c. without Exclusion of the Right Heir CHAP. I. People bugbear'd with Popery and Arbitrary Government The Priviledges of English Subjects by the Favour and Grants of their KINGS Their Representatives in Parliament Grotius thwarts Mr. B. in his main Principle AND now one would have thought that being so lately delivered from so base and shameful as well as heavy and grievous a Bondage we should not so soon have forgotten what we suffered under a Succession of various Tyrannies nor so soon have been weary of our Quails and Manna as to be so desirous as many of us seem to be to return to the same or perhaps if it be possible to a worse Bondage than that they were under before and to that end there be some that do as good as say one to another as that rebellious backsliding and ever-murmuring Generation of the Jews did Let us us make us a Captain and let us return into Egypt And why so why so soon so weary of well-being Is there any Nation under heaven in a better nay in so good a condition as we are Are not we the only People of Europe that are in Peace when all our Neighbours are in War with one another Doth not every one of us from the highest to the lowest enjoy the Liberty of his person the Propriety of his gooods and the fruit of his Industry without having any of it without his own consent taken away from him So that if ever it might be said of any it may now most emphatically be said of us Happy are the people that are in such a case Yes may some men say if we were sure to continue always as we are but we are afraid we shall not we are afraid of Popery we are afraid of Arbitrary Government which may take away all we have from us that is or ought to be dear to us But why should we fear where no fear is Is not our Religion our Liberty and our Properties secured unto us by the Laws and by such Laws as can never be repealed but by our own consents Did not such a needless fear as this make us rebell against our late Gracious Soveraign Lord the King and by that Rebellion make our fellow Subjects nay the basest and vilest and meanest of our fellow Subjects to be Lords over us And if ever we come into such a slavery or any slavery at all again it must be by such a Rebellion produced by such a pretended fear or by a Foreign Invasion invited by our divisions amongst our selves that must be the cause of it Never was there a better Constitution of a Government than ours is nor ever was there better security for the keeping of it as it is than we have Never were there Subjects that had more and greater or so many and great Priviledges as the Subjects of England have neither do our Kings
deny them to be of right due unto them as appears by the late Kings answer to the Petition of Right but due unto them not by capitulations and contracts with them before they were Subjects but either by Donations or by Concessions of our Kings to them when they were and as they were their Subjects Neither is it denied but that the People now have and of right ought to have Representatives in Parliament of their own choosing But that this was not nor could not be always so and that it was by the Kings meer Grace and favour when it first began to be so appears by what I have already observed concerning the first Parliament properly so called here in England instituted by Henry the first and as Daniel one of the most judicious of our English Historians tells us after the manner of Normandy But that ever since it hath bin so I deny not neither namely that the People have had have and ought to have such Representatives in Parliament of their own choosing but to represent them not as they were no body knows when as Freemen before they had Kings or were under any Government at all but as they are now and have been ever since and were long before there were Parliaments I mean as Subjects and consequently such as Mr. Baxter confesseth have no other lawful way of redressing their Grievances if they have any though never so great or so many but their Representatives complaining and petitioning the King for the relief of them and that either by desiring him to put the Laws in execution already made in favour of them as they did in the late Kings time by the Petition of Right or to Enact if need be new Laws for explanation and confirmation of the old ones or to punish those by whom the Legal Rights and Priviledges of the People have been Violated All this I grant the Peoples Representatives in Parliament may and if there be cause for it ought to do and that not as they are the Peoples Representatives only but their Trustees also nay and more than this namely not to promote or give their consent to the making of any such Laws as may be prejudicial to the publick though they may seem to gratify or may seem to be serviceable to the People nor to hinder the passing of such Acts as are really for the Peoples good though perhaps to the Major that is the most unwise and least judicious part of the People themselves they may seem to be otherwise And therefore their Representatives and Trustees as they are to consent or dissent so are they to judge for them what is or what is not to be consented to by them in behalf of them They are not always the best Husbands for the People that are most sparing of their Purses especially when the refusing to part with some may hazard the loss of all Neither is every thing that is got from the King a gain to the Subjects for the King's power may be too little to protect as well as too great to oppress them and according to the present conjuncture the former is much more to be feared than the latter And therefore the best service that can be done for the People by their Representatives in Parliament is to keep the Balance even betwixt the Prerogatives of the Soveraign and the Priviledges of the Subject by not indeavouring to intrench upon the one or to enhance the other but always and above all things to remember that as they are themselves Subjects so they are Representatives of Subjects and Trustees for Subjects as they are Subjects and therefore are not to treat the King as if they were Coordinate or Copartners with him in the Soveraignty but as it becomes Subjects and the Representatives of Subjects and such as have the honour of being there in that capacity and have the liberty of promoting or hindring the Laws that are to be made for those they represent from the meer Grace and Favour and Goodness of the King and his Predecessors and therefore the King is not by them nor by those they represent to be esteemed to be less a King or less their King or less their Soveraign than he was before no more than a Father is less a Father or hath less the Authority of a Father the kinder and more indulgent he is unto his Children or a Husband hath less of the Authority of a Husband the kinder or more indulgent he is to his Wife And therefore it is well and prudently observed by Grotius first Non desinere summum esse imperium etiamsi is qui imperaturus est promittat aliqua subditis aut Deo etiam talia quae ad Imperii rationem pertineant Soveraignty or Soveraign power doth not cease to be Soveraignty or Soveraign power though the Soveraign do restrain himself either by promise to his Subjects or by Oath to God even in such things as are essential to the Government And therefore Secondly he observes likewise that Multùm falluntur qui existimant cùm Reges Acta quaedam sua nolunt rata esse nisi à senatu aut alio coetu aliquo probentur partitionem fieri potestatis They are very much deceived saith he that think that because there be some Acts that Kings will not have to be ratifyed unless they are approved or consented to by a Senate or some such assembly that therefore there is a partition of the Soveraignty Mark that Mr. Baxter and tell me whether any thing can be more apparently contradictory to your Main Principle of the Soveraignty's being divided betwixt our Kings and their Parliaments and to the main and only reason you give for it namely that our Kings do not or if you will cannot make Laws for the People without their Parliaments or without the Peoples Representatives in Parliament consent to them For the only reason why they cannot is because they have obliged themselves by promise to their People and by Oath to God at their Coronation that they will not For ab initio non fuit sic from the beginning of our English Monarchy it was not so as I have at large shewed and as I have proved likewise that this and all other Priviledges of the People had their beginning from the bounty and goodness of our Kings to their People when they were their Subjects and not from any bargain or contract of the People before they were Subjects with any of their Kings as Mr. Baxter fondly as well as falsly imagins without any proof or offer of proof out of any of our Historians or Records for it Whereas the truth is that all our Kings except the Brittish of whom we know nothing of certainty I mean all our Kings of the Saxon Danish and Norman Races coming in by Conquest were not only Monarchs but Despotical Monarchs that is such as governed arbitrarily without any Laws at all but that
of having any thing to do in the Government as it now is and of doing any thing towards the alteration of it by repealing or giving their votes for repealing any of those Laws that are in force against Popery or for the making of any new Laws in favour of it being as I said before excluded from sitting in either of the Houses without the consent of the major part of which Houses the King himself though he be the sole Law-giver or sole maker of our Laws properly speaking as I have proved at large already can neither make nor repeal Laws but is according to the legal constitution of this Kingdom oblig'd and has obliged himself neither to make any New Laws nor to repeal any Old ones nor to Govern any otherways than by such Laws as are in force and have been or shall be so made that is with the consent of both Houses of Parliament either by himself or by His Predecessors So that there wants nothing to perpetuate our happiness under the best Government that ever any People did or can live under but to be assured that never any change as to the species and essentials of it shall be made in it And such an assurance as far as any thing in this world can be assured the making of such an Act here for the taking of such a Test as is already made and taken in Scotland will give us of what Perswasion soever in point of Religion or of what Inclination soever in point of Government the Successor to the Crown at any time may chance to be especially after he hath taken the Coronation Oath to Govern no otherwise than by Laws made and to be made by Act of Parliament CHAP. IX The Coronation-Oath alike dispensable whether the Successor be a Papist or a Presbyterian Mr. B. 's judgment of our Government and his wish for better order in choice of Parliament-men with the Bishops judgment what ought to be their main Qualification IF it be objected that if the Successor be a Papist there is no Oath he can take but he may be and will be by the Pope easily and willingly absolved from the Sin in taking it and from the Obligation to keep it I answer first that the same Objection will be as valid against a Presbyterian as against a Popish Successor for that the Classis as well as the Conclave can dispense with the obligation of Oaths we have seen and felt too For what was the imposing of the Solemn League and Covenant but a discharging of those that took it by those that perswaded them to take it from being any longer obliged by the Oāths of Allegiance and Supremacy which they had formerly taken But Secondly my answer is that I do not ground the Assurance of the continuance of our present Government either in Church or State either wholly or chiefly upon the Successors keeping of his Coronation Oath of what perswasion soever he is or may be but upon the a version which 99. parts at least of an 100. of the whole Nation have from Popery and Arbitrary Government and upon the Laws already in force against both and upon the supposition of such a new Law to be made here as there is in Scotland for the preserving and securing of the old ones viz. That no man be capacitated to choose or be chosen to be a Parliament-man before He hath taken that or such another Oath as that which by the aforesaid Act of Parliament in Scotland is prescribed and enjoyned to be taken Which Oath why those that fear the bringing in of Popery and Arbitrary Government should not be very willing to take I can see no reason unless they would bring in something else as destructive to the present Government as Popery it self and then I see no reason neither why they should not be excluded from choosing and being chosen members of Parliament as well as the Papists are For why should any that are Enemies to the Government one way or other be put in a capacity either to undermine the foundation or to weaken the props and the Pillars of it or to make any substantial alteration in it considering as Mr. Baxter himself confesseth That for ought he sees the Government of this Commonwealth I presume he takes the word Commonwealth not as a specifical but a generical Notion as it signifies any body Politick is already ballanced with as much prudence caution and equality as the curiousest of the models that self conceited men would obtrude with so much ostentation And that by Government of this Common-wealth he means the Government of this Kingdom not as it was governed by a State before the Usurpation of Cromwel the Father or by the Army and Rump-Parliament after the deposing of Cromwel the Son but as it was to be Govern'd according to the Legal constitution by King Lords and Commons that is by a King Governing by Laws made with the consent of the Lords and Commons in Parliament I take this I say to be Mr. Baxter's meaning by that which he calls the Government of this Common-wealth because in other places he seems not only to dislike but abhor the Government of a Common-wealth in a specifical Notion that is as it signifies a Democratical or popular Government for no fewer than 20. several reasons at the end of which he saith I conclude therefore that this Ignorant impious mutable cruel violent rout shall never have my consent for the Soveraignty and in another place as I have already observed he saith that although the two Houses of Parliament as having he thinks a part of the Soveraignty may lawfully in defence of that part of theirs make War against the King or those commissioned by the King yet though in that contest they get the victory they do not thereby gain the whole Soveraignty to themselves nor cannot alter the former constitution but must have the same or some other King in his stead whereby it plainly appears that by the aforesaid Government of this Common-wealth as he cannot mean a Democratical or popular so he cannot mean an Aristocratical or a Parliamentary Government without a King And therefore if he will sibi constare hold to what he saith and not contradict Himself as he does in many other things by that Government of this Common-wealth which he saith is already ballanced with so much prudence and caution he must needs mean this political regulated Monarchy of ours which we now enjoy and consequently that it ought not to be chang'd for any other form frame or model of Government which the curiosity of self conceited men saith Mr. Baxter he might have said or the Ambition of Proud or the greediness of Covetous or the malice of Discontented or the Bigotry of Hereticks or the peevishness of Schismaticks may endeavour to obtrude upon us instead of it For preventing whereof I could wish as he doth in the same place that some
and revenge what they had done unto his Father And though they have found the contrary to the praise of his incomparable Clemency be it spoken yet such is their Ingratitude they seem to be as weary of being under the Son as they and their Predecessours were of being under the Father as appears by their taking the same ways and using the same Arts to dissaffect and stir up the People against the one as their Predecessours had done formerly against the other But I hope though the People now rage so furiously and some of the Rulers take Counsel together against the Lord and against his Anointed yet that which they imagine namely to break the bands of their Allegiance asunder and to cast away the cords thereof from them will prove but a vain thing for he that sitteth in Heaven shall laugh them to scorn the Lord shall have them in derision and will keep up him whom he hath set up over us and them too and will bring down those how many and how mighty soever they may seem to be that shall dare to rise up against him But perhaps Mr. Baxter will say that he and his Party for whom he doth apologize are so far from being concerned in what I have said for the bringing them under the King that they were the Men that brought in the King to reign over them and us too and that if it had not been for them he had never been brought home as he was The former clause of which saying of theirs I utterly deny for they kept him out as long as they could and would have done so for ever if they could have established any other Government but that if it had not been for them he had not come home as he did is true in one sense that is he had not come home from having been banished and forced to live abroad so many Years together which they were indeed the cause of but in another sense namely that he came home as he did without any capitulations or conditions of restraint put upon him They I mean the Nonconformists were so far from being the cause of that they did what they could to hinder it and I could name the place where a Consultation was held by the Grandees of the Faction to oblige him before he came home to consent to those very Propositions which were made by the Parliament Commissioners to his Father at the Isle of Wight which would have lest him but the Name of a King onely but the curst Cow had short horns the Army was in better hands than it had been and he that was Commander in chief of it having purged out all that would not comply with his loyal Intention to bring in the King as a King he frustrated the designs of those that would have brought him in manacled or not have brought him in at all which were all the Nonconformists and especially those of the Presbyterian Party who though they did not because they could not hinder the King's Restauration in that manner he was restored nor consequently their being brought under him so far as to own and acknowledge him to be their King by taking a pardon from him for what they had done against his Father and himself yet they do not nor will not own him as all Subjects ought and as all good Subjects do own their Kings by obeying their Laws And perhaps that which Mr. Baxter means by the Bishop of Ely's and my helping to bring him and his Party under is the bringing of them under the obedience of the King's Laws by silencing such as will not obey them What the Bishop of Ely hath done in that kind I know not but this I am sure that neither he nor I could have obeyed the Laws our selves if we had not silenced those Preachers that would not conform to what they were enjoyned by Law and which if they refused We that were Bishops were enjoyned by Law to silence them as we did how few or how many soever they were of them though I verily believe they were not half the number Mr. Baxter speaks of In the Diocese of Worcester whilst I was Bishop there Mr. Baxter himself was the onely man whom I silenced and since I was Bp. of Winchester which is now above 20 Years I do not think the Nonconforming Ministers I have silenced have been half so many I mean half so many men silenced as there have been years since which I do not say to ingratiate my self with the Nonconforming Party as if I would not have silenced more if there had been more to silence that is if there had been more in possession of any Benefice or Cure of Souls in that Diocese who refused to conform to all that by the Act of Vniformity they were enjoyned to conform unto but I say it to shew the impossibility of the silencing 2000 in all when there were so few silenced in that Diocese of Winchester which is none of the least though there be some greater Besides I presume Mr. Baxter means by his 2000 not onely such as were put out of their Livings or Cures for refusing to conform or for their Inconformity onely but such as likewise were put out because they were Intruders into other mens Livings as Mr. Baxter himself was and consequently were by Law compellable to yield possession to the right owners that were then living who perhaps were some Hundreds of those Thousands I am sure all We of the Clergy that were abroad with the King and all those that were at home and had been put out because they would not take the Covenant and lived till after the King 's and the Church's Restitution by being restored to what was our own before must needs dispossess many of those whom Mr. Baxter would have thought to have been put out for Inconformity onely But supposing all that were put out or silenced had been put out and silenced for Nonconformity onely and supposing too that there were 2000 of them yet how the Bishop of Ely and I did more to the bringing so many of them under that penalty than other Bishops did or than all Bishops were bound to do I do not understand unless he means that We did it more effectually than any other of the Bishops did which is to cast an imputation of Connivence at the breach of the Law in favour of the Nonconformists upon all the rest of our Order which I think none of them will own as a favour from him For my own part as I did willingly consent to the making of that Law I mean the Act of Vniformity so I did as willingly put it in execution where I was obliged to do so as believing it not onely to be just and equitable but in an high degree expedient if not absolutely necessary also CHAP. VI. The Justice and Equity as also the Prudence and Necessity of silencing the Nonconformists The King's Promise at Breda being onely conditional
be of the Clergy before they be permitted to preach unto the People or to have the Education of Youth here in this Kingdom and this is the Law called the Act of Vniformity After the making of which Law by the Advice and with the Consent of both Houses of Parliament it is to no purpose to alledge or insist upon any former Promise made by the King and made by him but conditionally onely that is if he were or should be so advised by his Parliament and not otherwise And indeed for them or any Agents of theirs to desire any thing of the King before he came home as to the repealing of any old Law or the making of any new Law without or against such Advice or Consent of Parliament or any otherwise than conditionally if the Parliament would consent to it was a high breach of the highest Privilege of both Houses of Parliament in those that did desire it then or do now complain it was not done when they knew it could not be done by the King alone and saw the Parliament would not consent to it and therefore I say still to insist upon any such promise made by the King must needs be a very great Affront to both Houses of Parliament unless they be of Mr. Baxter's opinion who as I have before observed notwithstanding his magnifying the Power of Parliaments by dividing the Sovereignty betwixt the King and them affirms that in some cases the King may make a Law not onely without but against the consent of the People if it be for their good because it is to be supposed saith he they would have consented unto it if they had known it to be so which how far it may intrench on the Power of Parliaments I leave it to them to consider I am sure I dare not be so bold with them CHAP. VII The Act of Vniformity why made Some other probable Reasons for Nonconformity and not Conscience altogether as Mr. Baxter saith it is BUt to return to what we have in hand the King having by advice and with the consent of both Houses of Parliament first passed an Act of Oblivion to quiet mens Minds for what was passed to prevent our falling again into as bad or perhaps a worse condition for the future if ill principled and ill affected Preachers were permitted to blow the trumpet of Sedition and Rebellion as they had done formerly His Majesty did by the Advice and with the Consent of the said both Houses of Parliament enact the aforesaid Act of Vniformity thereby providing that none should be admitted or permitted to preach to the People or to teach their Children that would not subscribe and conform to what was required to be subscribed and conformed unto by that Act. Which was no more than they have already consented to by their Representatives in Parliament and consequently to the Penalties for refusing to conform to it also which was neither loss of Life nor Limb nor Liberty nor any part of their Goods but onely their forbearing to preach untill they were better informed and could bring themselves to comply both in Judgment and Practice with what their Duty and Obedience to the Law required of them as some of the learnedst and generally thought to be as conscientious as any of them namely Bp. Reynolds and Dr. Connant did as perhaps many other learned and conscientious men did also But they were not one of an hundred will Mr. Baxter say in comparison of those that did not nor could not conform True I confess as to those that did not but whether all that did not could not is a thing with Mr. Baxter's good leave may be doubted whatsoever he hath said to the contrary as when he saith that to think any that do not conform would not conform if they could with a good Conscience is to think them all to be Fools or mad Men for preferring Poverty before Plenty Want before Wealth Contempt before Honour and Respect and Imprisonment before Liberty which no man in his Wits either would or ought to do if he might chuse whether he would so or no without sin And therefore Mr. Baxter thinks we must needs grant it is nothing but fear of sinning against God that makes the Nonconformists not that they will not but that they dare not conform to what the Laws of the Land as well as of the Church require of them As if all the Nonconforming Ministers that were put out of the Livings they were in or that by reason of their Inconformity are uncapable of any Preferment in the Church are therefore all of them men of Conscience and that whatsoever they ought to doe and will not or will doe and ought not it is for Conscience or for Conscience sake onely or for fear of sinning against God if they did what they doe not or did not what they doe that is if either they did conform when they are commanded or did not preach when they are forbidden But is there or can there be no other cause of their not doing what they should doe and their doing what they should not doe but Conscience onely May it not be peevishness in some and perverseness in others May it not be Pride and Ambition in the Leaders and Ignorance and Obstinacy in those that are led by them I remember that when Bishop Brownrig who is one of the few Bishops that Mr. Baxter vouchsafes to speak well of and I went together to the Treaty with the late King at the Isle of Wight he being one of the Three Divines named by the Parliament and I one of the Three named by the King though very unworthy I confess to be so when that learned Bishop I say and I went together in his Coach towards the Isle of Wight I remember not now upon what occasion it was but I remember very well that I ask'd his Lordship whether he knew Mr. Calamy and he answered me he did and had known him from his first coming to Cambridge Pray my Lord said I was he always a Nonconformist No said he far from it in his practice as well as in his judgment even untill the beginning of these times How came he then said I to be so suddenly and so strangely changed from what he was Why said the Bishop he saw the Tide was turning and having a good opinion of his own parts he thought if he was one of the foremost in coming in he might be one of the foremost if not the foremost of all the Leaders of the whole Party as you see said he he is adding that the hope to be head of a Faction was a powerfull Temptation And why might not the same Temptation prevail with many others that thought as well of themselves as Mr. Calamy did and consequently might have the same hopes that he had But why then may it be said did not the same men when the Tide turned again at
and particularly such as are against Princes safety and honour or whose Principles tend to overthrow the honour and safety of Governours and to kindle the fire of contention and enmity or such as draw their hearers Souls into any damnable errour or sin or that perswade men against any precept of the Decalogue and consequently against any of the precepts of the second Table as well as of the first all such as these saith Mr. Baxter are to be restrained from preaching For far be it saith Mr. Baxter from any sober man to think that the Magistrate must let all men doe the evil that they will but pretend to God and Conscience for Which one saying of his makes all that he said before to justifie the preaching of his Nonconformists to signifie nothing if they be silenced or forbidden to preach for any of the aforesaid causes by him specified and acknowledged to be such as Preachers ought to be silenced for notwithstanding any pretence of conscience to the contrary So this being agreed on betwixt us the next thing in question betwixt us is whether those that are silenced are such as Mr. Baxter confesseth ought to be silenced or no for if they be he confesseth likewise that no pretence of conscience can warrant their preaching and much less oblige them to preach For the deciding of this question therefore whether those that are silenced are justly silenced or no there remains one and but one question more and that is who shall judge and finally determine whether they that are silenced be or be not such as ought to be silenced or restrained from preaching Surely they themselves must not be their own judges but who must then why who but the Magistrate saith Mr. Baxter who in Church cases and religion hath the onely publick judgment whom he shall countenance maintain or tolerate or whom he shall punish or not tolerate nor maintain but with this caution so he be not the executioner of the Clergy's sentence without or against his own conscience and judgment Where by the Magistrate I hope he means the supreme Magistrate and by his judgment he means his judgment according to Law For the Law and nothing but the Law is the declaration of the supreme Magistrate's publick judgment in giving whereof he neither is nor can be the executioner of any other man's sentence but all subordinate Magistrates whether Civil or Ecclesiastical are the executioners of the supreme Magistrate's judgment or sentence and are no farther binding or to be obeyed than they are so Now that the supreme Magistrate with the advice and consent of his great Council hath given his judgment not onely who are and who are not to be tolerated to preach in publick or in Churches appears by the Act of Vniformity as likewise that he hath given his judgment also that those who are not to be tolerated to preach in publick or in Churches are not to be tolerated to preach in private nor in Conventicles neither appears by those other Acts of Parliament whereby such preaching is forbidden and such penalties as are therein specified are to be inflicted upon the transgressours of them Lastly as those Acts of Parliament are undeniable evidences who are and who are not to be tolerated to preach either publickly or privately according to the publick judgment of the State so the reasons why such preaching and such Preachers are prohibited are declared in the Titles and Prefaces of the aforesaid Acts for example the Title to one of those Acts namely that of decimo tertio of our present King is this An Act for the safety and preservation of his Majesty's person and Government against treasonable and seditious practices and attempts and in the Preface to the said Act it is said that the Lords and Commons assembled in that Parliament deeply weighing and considering the miseries and calamities of well nigh 20 years before his Majesty's happy return and withall reflecting upon the causes and occasions of so great and deplorable confusions the growth and increase of which they say did in a very great measure proceed from a multitude of seditious Sermons Pamphlets and Speeches published with a transcendent boldness from which kind of distemper say they as the present age is not wholly free so posterity may be apt to relapse into them if a timely remedy be not provided Therefore say they We the Lords and Commons having duly considered the Premisses do most humbly beseech your Majesty that it may be enacted c. By which Title and preface it plainly appears that the Lords and Commons did believe that neither the safety of the King's person nor of the Government could be secured if such kind of Preaching and Preachers as had in the late times been the stirrers up of the People to rebellion were not restrained from preaching for the future unless they would give some such security as the Parliament should think fit to require which was their renouncing the Covenant and their subscription to the Act of Vniformity which was enacted by the King by the advice and with the consent of the Lords and Commons the year following And it was for their not conforming to this Act of Vniformity that is for their not giving that security which the Law required that they would not preach schismatically and factiously and seditiously as they had done formerly for which they were some of them deprived and all of them disabled to preach publickly in Churches and consecrated places But this Act not proving effectual enough to prevent the danger for preventing whereof it was enacted because those that were forbid to preach publickly and in Churches did preach the same doctrines in Conventicles and in corners confirming their old and making more and more new Proselytes and being more and more followed because they were forbidden to preach in publick Therefore two years after this there was another Act made by the same Authority the Title whereof is An Act to prevent and suppress seditious Conventicles and the Preface or Preamble thereof is That for the providing of farther and more speedy remedies against the growing and dangerous practices of seditious Sectaries and other disloyal Persons who under pretence of tender Consciences do at their meetings contrive Insurrections as late experience hath shewed Be it enacted c. And then tells us first what shall be taken for a seditious Conventicle namely any meeting or Assembly in any place under colour or pretence of any exercise of Religion in other manner than is allowed by the Liturgy or practice of the Church of England where there shall be five Persons or more over and above those of the same house Secondly What are to be the Penalties for the first second and third Offence and lastly who are to be the Executioners and Inflicters of these Penalties Where you see that it is the Highest secular Magistrate whom Mr. Baxter will have
inconsistent History and Experience have taught us the inconvenience of the one and the other No fear of either's Return A just commendation of our Church-Government What duty we owe to such a Constitution * Rom. c. 16. v. 17. A mark to be set upon Dividers The Character of Separatists Ep. Jude v. 16. V. 19. They are sensual * 1 Cor. 3. 4. What Spirit it is guides them The ill Consequence if that Spirit be not restrained The late example of the Scots recommended Their Test. Vid. the Acts and Laws made in Scotland when the Duke of York was the Kings Commissioner there An. 1681. The Heir of the Crown being a Presbyterian c. all one case as his being a Papist Just Reflections upon the Presbyterian Covenant General Monks conduct prais'd The Sectaries will not indure Vs nor one another They and the Papists much alike as to cruelty Their Principles much what the same And practices too upon occasion The Tryers a kind of Inquisition An Instance from the Anabaptists The like may be judg'd of the other Sects The danger if the Heir of the Crown be of any other Religion alike as if he be a Papist What Means to be used to prevent this danger The Exclusion of the right Heir against the practice of all Nations And consequently against the Law of Nature Jacob 's three eldest Sons forfeited their Birth-right Gen c. 49. v. 3 4. Two Cases of disherison The Right of Inheritance according to Gods positive Law The like in succession of Kingdoms 1 Kings c. 2. v. 22. A donijah his Case and why Solomon preferr'd to the Throne 1 Kings c. 1. v. 6. Ibid. Granting that the Judicial Law obligeth none but Jews The Exclusion of the right Heir is contrary to the Law of the Land No such Law now in being Nor can be made without the Kings consent Nor were it made would be just in the present Case The dangerous consequence of such a Law Such a Law if made and executed would not be effectual against future Heirs Arbitrary Government may be brought in by other ways as well as by Popery A brief commendation of the Church of England and the Civil Government The Scotch Test proposed to keep out Popery and Arbitrary Government Which upon the supposition of such a Law cannot be brought in Neither by force Nor by fair means An Objection from what Queen Mary did The Case much different then from what it is now Prebytery more likely to alter the Government than Popery Such a Test will be an assurance of no change to be An Objection that a Popish Successor will be absolv'd from his Oath The thing the same if a Presbyterian The full ground of that Assurance of no Change to be in the Government Mr. B. 's own commendation of our Government Vid. H. Com. p. 207. What he means by the Government of this Common-wealth Vid. H Com. from 89. to the 104 page His wish for better order in Election of Parliament-men H. Com. W. Page 27. 208. Wherein the Bishop agrees with him Whom Mr B. perhaps thinks worhty to choose or be chosen Whom the Bishop thinks such The main qualification of a Parliament-man An Objection against the Test. A threefold Answer A reinforcement of the Test * Which if consented to by the Successor no reason to believe but it will be kept A Recital of some of Mr. B 's Principles by which he justifies the late Rebellion and by which upon the like occasion Rebellion is incouraged for the time to come The Parliament how the Peoples Representatives and Trustees in Mr. B. 's sense The Peoples Rights and Priviledges H. Com. W. p 471. The Priviledge of Parliament An Instance of an unhappy difference betwixt the two Houses concerning Priviledge In what sense the King sole Law-giver The blessed frame of English government A caution against seditious Preachers and Scriblers Several ways to prove it lawful to take up Arms against the King Calvin 's way Herl 's way Mr. Baxter 's way Vpon such Principles the King in continual danger of Rebellion Some of Mr. B. 's Principles peculiarly such What the late King meant by saying The Laws are jointly made by King Lords and Commons How Christ alone will judge the World and yet the Saints shall judge it too How the Laws made by the King alone and yet jointly by the King Lords and Commons Some Instances ad hominem to convince Mr. B of this meaning Vid. M B 's second Def. of meer Nonconf p. 127. A brief Rebearsal of our Law-making How Laws made in the Roman Common-wealth How in our Monarchy The ancient stile of our Laws Our King not an absolute but a legal Monarch The three Estates Whence Mr. B. 's errour of dividing the Soveraignty The Soveraignty how in its streams divided and in its acts limited The King 's Negative voice necessary to preserve Monarchy Who Enemies to Monarchy A Caveat to Soveraigns The Conclusion of this and the three foregoing Sections Mr. B 's insincerity of dealing The true account of the Bishop's advising him to read thâ—se 〈◊〉 〈◊〉 s. Mr. B 's fallacious intent in giving the account as he does Mr. Hooker 's judgment of Kingly power whether he be King by choice Vid Hooker 's Eccl. Pol. lib. 8. p. 456. Or by Conquest Vid. Hooker 's Eccl. Pol. lib. 8. p 454. This of Conquest our case at first Vid. Hooker p. 454. Our Kings since have restrained themselves What it is that Mr. B. doth not approve Mr Hooker 's judgment of the descent of the Crown More than Mr. B. approves pag. 184. Of the King's Supremacy Over all persons This again more than Mr. B. approves Of the King's Supremacy as to things Eccles. Pol. p. 457. lib. 8. Lib. 8. p. 469. Of his Negative voice p. 471. Of his making of Laws p. 472. This against Mr. B. And therefore not approved by him Bishop Bilson in an errour about resistance The ground of his errour The censure of it A Remark upon our late Rebellion Religion true or false inspirits men alike Not safe nor lawfull for one Prince to assist another's Rebel-Subjects How we are to help those who are persecuted for Religion Mr. B 's design in this reflexion defeated Whom he means by Vs He disowns himself to be a Presbyterian And takes it for an affront to be thought so Why called their Antesignanus Mr. B. an Apologist for all the Nonconformists What his Nonconformist Ministers are What he means by bringing them under Independents and Presbyterians like Caesar and Pompey Vnder whom they are brought viz. the King How Mr. B. and his party brought in the King An account of Ministers silenced by the Bishop Intruders as well as Non-conforming Ministers put out The silencing of the Nonconformists a just and equitable punishment Mr. B 's own case the same as he makes Abiathar 's to be The silencing of them prudent and necessary also by way of caution No thanks to
them for the King 's coming home The security the government required of them Their own measure meted to them The King's Promise at Breda discharged As being conditional Their carriage an affront to the Parliament Mr. B 's boldness with Parliaments The reason of the Act of Vniformity The penalty of not conforming Some have conformed Why the rest did not whether for Conscience as Mr. B. saith Bp. Brownrig's account of Mr Calamy 's not conforming A probable reason why some refused offers of preferment To wit to indear themselves to their party Many stood out in hopes of a Toleration Supposing it is out of Conscience they do not conform yet they are justly silenced The Popish Priests have the same Plea as Mr. B 's Nonconforming Ministers And that upon Mr. B 's own Reasons Vid. Apology for the Nonconformist Ministry p. 14. ibid. p. 15. As from the Obligation of holy Orders From their being consecrated to God's service ibid. p. 20. From scriptural Authority From the guilt of murthering souls if they do not preach Pag. 45. Plea for Non-con's Ministry No such necessity of preaching now as in the primitive times The Homilies of the Church recommended for excellent Sermons The efficacy of those Homilies maintained An Argument drawn from their own repetitions of Sermons Mr. B 's murther of Souls a phantasm The assistance of Nonconformists offered gratis Apol. p. 16. Why not to be accepted The Popish Priests under a greater obligation of preaching Neither of them to be permitted According to Christ's own Caveat and S. Paul 's order to Titus The like practised at the beginning of the Reformation Themselves serv'd the Church of England-men so What Preachers to be silenced by Mr. B 's own sentence * Vid. True and onely way to concord part 3. Third part of True and onely way of conc p. 121. 122. The Ministers Mr. B. pleads for are such as he confesseth ought to be silenced The Magistrate the Judge in this case saith Mr. B. Vid. Third part of Book of Concord pag. 140. The Law is a declaration of his Judgment What kind of Preachers tolerated what not is there set down With the reasons of such restraint A descant upon those reasons The security which the Law requires from Preachers The ground of the Act against Conventicles What are seditious Conventicles Who seditious Preachers Mr. B 's Apology for them falls to ground The very Conventicles whatever people doe there are seditious One main reason of forbidding them to prevent the murthering of Souls * Holy Com. Wealth p. 486. This Mr. B. charged particularly with upon his own confession Ibidem The words of the Reflexion The Bishop not peculiarly concern'd in the former part of those words The latter part of them particularly aimed at the Bishop Mr. Jones a Chaplain to the Duke's Family not to his Person Mr. Jones the man intended by Mr. B. The Bishop no way concerned in his being put out of the Duke's service Some reasons that Mr. Jones is meant by Mr. B. for one that was driven away Vid. The Premonition to the true and onely way of Concord And that the Bishop of Winton is meant by the Prelate who drove him away The false account which Elymas the Sorcerer gives of Mr. Jones 's removal Mr. B. perhaps the Godfather of that Pamphlet Elymas a Comment upon Mr. B 's Text. The Protestant Religion to be preserved better without the Dissenters than with them The condition of the Church of England as to Dissenters Object 1. The Answer Object 2. The Answer Mr. B ' s. Recantation as to the Time very tardy His Sermon before the King The manner of his Recantation Not clearly worded Clog'd with Proviso's His vain-glorious professions of Loyalty Some of his disloyal Principles He justifies the late War Most likely that he is of the same judgment still Two Plots carrying on Mr. B 's true and only way of Concord
acquitted ANd first it was very just and very equitable also in relation to what was passed I mean if they had been enjoyned silence for the future by way of punishment onely for the mischief they had done by Preaching formerly which was such as I cannot think of without horrour nor they should not think of without a thankfull acknowledging it for a very great Mercy and Favour from God and the King that they had onely the Liberty and opportunity of doing more mischief taken away from them when their Lives might most justly have been taken away for the mischief they had done before For it is upon this account that Mr. Br. himself justifies Solomon's deposing Abiathar the High-Priest who was the next person in dignity to the King himself amongst the Jews because he might have taken away his Life saith Mr. Baxter as well as the Priesthood for his siding with Adonijah in his Rebellion And might not our King upon the same account have taken away Mr. Baxter's own Life and the Lives of all the rest of the Non-conforming Ministers as Mr. Baxter calls them namely for siding with the Rebellious Parliament and not onely for siding with it themselves but for stirring up all the People to side with it also against his Father and himself And ought they not then to acknowledge the taking away of but their Livings which they had never any legal right to and their liberty to preach which they had so horribly abused ought they not I say to acknowledge it to have been at least a just if not a very favourable punishment for their former offences and equitable too as well as just and favourable it being but the doing that unto them justly and legally which they had most unjustly and illegally done before to all the Conformable Clergy by thrusting them out and intruding themselves into their places Again as the depriving and silencing of the Nonconformists considered as a punishment for what they had done before was not onely just and equitable but favourable also So considered as a Caution against what they might doe for the future it was not onely prudent and expedient but as things then stood absolutely necessary for the securing of the publick Peace both in Church and State and consequently the safety and welfare both of Prince and People For We had reason to believe it was neither a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nor a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it was neither a remorse for what they had done nor a change of Mind either in their judgments or affections in order to what they would doe that made any of the Nonconformist Parties give way to the King 's coming home as he did but onely their disability to hinder it partly by reason of the irreconcileable differences among themselves and partly because the Army was no longer in their Power but especially because the over ruling Wisedom of the divine Providence would have it to be so And therefore as we were not to thank them for that blessed change that was made so much against their Wills both in the Church and State so were we not to trust them neither with having any thing to doe either in the one or in the other especially in the Church without giving some assurance beforehand that they would not preach and act as they had done formerly And the Assurance which by the King and his great Council was thought fit to be given by them was first a renouncing of the Covenant and secondly to declare their Assent and Consent to whatsoever by the Act of Vniformity is required of them either of which if they refused to doe they did as good as tell us in plain terms what we were to expect from them namely that they thought themselves bound by their Covenant to pursue the ends of it whensoever there should be an opportunity for it and in the mean time by their praying and preaching to disaffect the People as much as they could to that way of publick Worship which they themselves refused to comply with and submit to And can any man think it was safe for us or consistent with the publick Peace either in Church or State to suffer such men to continue in their stations or to be permitted to harangue the People as they were wont to do They themselves when they were in Power though it was by Vsurpation onely thought it not onely lawfull and prudent but necessary also for the upholding of their illegal and usurped Authority to deprive and silence all our Clergy that would not take their Covenant and submit to their Directory And is it not as lawfull and prudent and necessary too for Us in order to the securing of the legal both Civil and Ecclesiastical Government to deprive and silence those that will not renounce that Covenant whereby they are obliged to ruine both or that will not join with us in the publick Worship of God as it is prescribed in the Book of Common-Prayer Certainly if it were prudent and necessary for Them in their Circumstances then to doe the one it must needs be as prudent and necessary for Vs in our circumstances now to doe the other even themselves being Judges to say nothing of the unlawfulness of what they did unto Us as being unjust in itself and having nothing to warrant it but an usurped Power and the lawfulness of what we do unto them as being just in it self and being authorized and commanded to be done by that Power which We are legally obliged to obey I know Mr. Baxter and others of the Dissenting Party use often to alledge and mainly to insist upon what the King promised them at BREDA and made them hope should be done for them when he came home But they know or ought to know that those promises whatsoever they were as they were meant by the King so they were to be understood by them to be obliging so far forth onely as they should be approved and consented to by his great Council the Two Houses of Parliament without whose Advice Approbation and Consent they knew the King could repeal no old Law that was in force against them nor make any new Law in favour of them Either of which the two Houses were so far from advising him to doe that the House of Commons gave him unanswerable reasons lately reprinted why nothing of that kind could be done without hazarding a relapse both of Church and State into as bad or perhaps a worse condition than that which it was newly come out of For the preventing whereof it was the House of Commons the Representatives of the People and not the Convocation the Representatives of the Church that upon mature deliberation devised and drew up that Bill which being assented to by the Lords they presented to the King to be made a Law as it was by the King's Fiat to oblige and be imposed upon all that are or pretend to