force But it appears the Doctor in his whole discourse hath avoided this point of resistence of mis-imployed subjects which yet is the alone point which would have given satisfaction for before it appeares we agree in all the rest and in this too for ought I know he having not distinctly said any thing against it Now concerning this case of forceable resistence of inferiour Sect. 3 persons mis-imployed to serve the illegall destructive commands of the Prince I will doe two things 1. Whether resistence of Instruments of will be lawfull I will maintaine my Assertion by convincing Arguments 2. I will shew the invalidity of what is said against it Assert 1. This then is my Assertion The two Estates in Parliament may lawfully by force of Armes resist any persons or number of persons advising or assisting the King in the performance of a command illegall and destructive to themselves or the publique Arg. 1 1. Because that force is lawfull to be used for the publique conservation which is no resistence of the Ordinance of God for that is the reason condemning the resistence of the Powers Now this is no resistence of Gods Ordinance For by it neither the person of the Soveraigne is resisted nor his power Not his person for we speak of Agents imployed not of his own person Nor his power For the measure of that in our Government is acknowledged to be the Law And therefore he cannot confer Authority to any beyond Law so that those Agents deriving no Authority from him are meere Instruments of his Will Unauthorized persons in their assaults Robbers and as Dr. Ferne calls them Cut-throats If the case be put What if the Soveraigne himselfe in person be present with such Assaylants joining his personall assistence in the execution of his Commands It is much to be lamented that the will of the Prince should be so impetuous in any subverting Act as to hazzard his own person in the prosecution of it Yet supposing such a case all councells and courses must betaken that no violence be offered to his person and Profession of none intended But no reason the presence of his person should priviledge ruining Instruments from suppression and give them an immunity to spoil and destroy subjects better themselves His person being secured from wrong His power cannot be violated in such an Act in which none of it can be conferred on the Agents And sure David though he avoided laying hands or using any violence against the person of Saul and on no extremity would have done it Yet for the Cut-throats about him if no other means would have secured him he would have rescued himselfe by force from their outrage Though Saul was in their company Else what intended he by all that force of Souldiers And his enquiry of God at Keilah by which it is plain He had an intent to have kept the place by force if the people would have stuck to him Neither is it to the purpose which the Dr. saies Sect. 2. That his example was extraordinary because he was anointed and designed to succeed Saul for that being but a designation did not exempt him from the duty of subjection for the present or lessen it as is plain by the great conscience he made of not touching Saul But he knew it was one thing to violate Sauls Person and Power and another to resist those Instruments of Tyranny the Cut-throats which were about him Secondly Because without such power of resistence in Arg. 2 the hands of subjects all distinction and limitation of Government is vain and all formes resolve into absolute and arbitrary for that is so which is unlimited and that is unlimited not onely which hath no limits set but also which hath no sufficient Limits for to be restrained from doing what I will by a power which can restrain me no longer nor otherwise then I will is all one as if I were left at my own Will I take this to be cleare Now it is as cleare that without this forceable resistence of Instruments of usurped power be lawfull no sufficient limits can be to the Princes Will and all Lawes bounding him are to no purpose This appeares by enumerating the other meanes Prayer to God Petition to the Prince Deniall of obedience Deniall of Subsidie a moderate use of the power of denying as Doctor Ferne calls it These are all but what are these to hinder if a Prince be minded to overthrow all and bring the whole Government to his own Will For Prayer and Petition these are put in to fill up the number They are no limitations they may be used in the most absolute Monarchy for deniall of obedience that may keep me from being an Instrument of publique servitude but Princes Wills never want them which will yeild obedience if I deny it Yea enough to destroy all the rest if nothing be left them but to suffer Then for deniall of Subsidie if he may by thousands of Instruments take all or what he or they please and I must not resist what need he care whether the people deny or grant If a Prince be taught that he may do it cases and reasons will soon be brought to perswade him that in them he may lawfully doe it as late experiences have given us too much Testimonie Thus it is apparent that the deniall of this Power of Resistence of Instruments overthrowes and makes invalid all Government but that which is absolute and reduces the whole world de jure to an absolute subjection that is servitude for the end of all constitution of moderated forms is not that the supreme power might not lawfully exorbitate but that it might have no power to exorbitate The Dr. is conscious hereof and therefore tells us in his Sect. 5. This is the very reason which is made for the Popes power of curbing and deposing Kings in case of heresie because else the Church saies the Papist hath no meanes for the maintenance of the Catholique Faith and its own safety But who sees not the vast difference 'twixt these two and that the same reason may be concluding here which is apparently non concluding there For 1. They thereby would draw to the Pope an authoritative power we no such superiour power but only a power of resistence for self-conservation which nature and the Law of reason gives to every one and may stand with the condition of subjection and inferiority 2. They on this reason give the Pope a Power over the very person of the King we only of resisting of unauthorized invading destroyers comming under the colour of an authority which is not in the Soveraigne to be derived 3. They prove a civill right for spirituall reasons we onely for civill reasons 4. The Church and the faith are constituted in their very formall being from Christ himselfe who is the head and great Shepheard immediately in his owne person and as it is his owne family so he keeps the power of
a change of Government for that includeth the greatest resistence and violation of the person and power of the Monarch the lawfullnesse of which I utterly disclaime Thirdly it is not ever accompanied with the evills of Civill Warre But when the Princes Will findes enough Instruments of their Countreys ruine to raise it And then the mischife of that war must light on those which raise it But suppose it may ensue yet a temporary evill of war is to be chosen rather then a perpetuall losse of liberty and subversion of the established frame of a Government In the fourth I deny the parity of reason for the two Houses are bodies constituted and endowed with legislative authority and trust of preservation of the frame by the Fundamentalls of the Kingdome which the people out of those Houses are not Againe the Government being composed of a threefold consenting power one to restraine the exorbitance of another All three together are absolute and equivalent to the power of the most absolute Monarch The concurrent Will of all three makes a Law and so it is the Kingdomes Law To the last I answer In every State some must be trusted and the highest trust is in him who hath the Supreame power These two the Supreame Trust and the Supreame Power are inseperable And such as the power is such is the trust An absolute power supposes an absolute trust A Power allayed with the annexion of another power as here it is supposeth a trust of the same nature A joynt trust yet saving the supremacie of the Monarch so far forth as it may be saved How farre forth the sword is in the hand of the Monarch and not be absolute and the others authority nullified It may be further argued that it being the Prerogative Royall to have the managing of the sword that is legall force in the Kingdome none can on any pretence whatever use lawfull force either against him or any but by his Will for it is committed to him by law and to none but whom he assignes it to so that the Lawes of the Kingdome putting all power of force and Armes into his trust have placed him and all those who serve him in a state of irresistiblenes in respect of any lawfull force This is a point much stood on and on this ground the Parliament now assuming the disposing of the Militia by an Ordinance it is complained on as a usurping of what the Law hath committed to the King as his Prerogative The opposing of which Ordinance by a Commission of Array was the beginning of this miserable Civill-Warre I will distinctly lay down my Answer hereto submitting it to every impartiall judgement Pos 1 1. The power of the Sword being for defence of the Lawes by punishing violators and protecting subjects it is subservient to Government and must needs belong to him who is entrusted with the Government as a necessarie requisite without which he cannot performe his trust Pos 2 2. As it is an appendix to the power of Government and goes along with it so it goes under the same termes belonging to the Prince as the other doth sc absolutely to use at will where the Monarchie is absolute or with limitation to use according to Law where the Monarchy is limited so that in this Government the Armes and sword of the Kingdome is the Kings to a defined use committed to him viz For defence of the Lawes and Frame of Government established and not for arbitrary purposes or to enable Ministers to execute commands of meer Will Pos 3 3. The two Houses in virtue of the Legislative authority in part residing in them are interested in the preservation of Lawes and Government as well as the King And in case the King should misimploy that power of Arms to strengthen subverting Instruments Or in case the Lawes and government be in apparent danger the King refusing to use the sword to that end of preservation for which it was committed to him I say in this case the two Estates may by extraordinary and temporary Ordinance assume those Armes wherewith the King is entrusted and performe the Kings trust And though such Ordinance of theirs is not formally legall yet it is eminently legall justified by the very intent of the Architects of the Government when for these uses they committed the Armes to the King And no doubt they may command the strength of the Kingdome to save the being of the Kingdome for none can reasonably imagine the Architectonicall Powers when they committed the power of government and Armes to one to preserve the Frame they had composed did thereby intend to disable any much lesse the two Estates from preserving it in case the King should faile to doe it in this last need And thus doing the Kings Worke it ought to be interpreted as done by his Will because as the Law is his Will so that the Law should be preserved is his Will which he expressed when he undertooke the government 'T is his deliberate Will and ought to be done though at any time he oppose by an after-Will for that is his sudden Will as Doctor Ferne himselfe Sect. 1. doth teach us to distinguish CHAP. VI. In what cases the other Estates may without or against Quest 6 the Kings Personall consent assume the Armes of the Kingdome WHo ever were the Authors of that Booke lately Sect. 1 published stiled Whether it be lawfull to take up armes against the Magistrate perverting his power to a wrong end Scripture and Reason pleaded for defensive Armes have laid new and over-large grounds for resistence Two Assertions they endevour to maintaine First those Governours whether supreme or others who under pretence of authority from Gods Ordinance disturb the quiet and peaceable life in Godlinesse and Honesty are farre from being Gods Ordinance in so doing Sect. 3. Secondly This Tyranny not being Gods Ordinance they which resist it even with Armes resist not the Ordinance of God Hereon Sect. 4. they free Christians even in the Apostles time and so under the Romane Emperours or any other Government from necessity of passive subjection in case of persecution affirming that the Christians in those first Persecutions had they been strong enough might have used Armes for defence against the Tyranny of their Emperours Their ground is from the Reasons used by the Apostle Rom. 13. where he commands subjection forbids resistence to the higher power because they are Gods ordinance his Ministers for praise to well-doers for terrour to evill doers But I must professe my self to dissent from them in this opinion conceiving that the Apostle in urging those Reasons drawne from the due ends of Power doth intend to presse them to subjection by shewing them what benefit comes to men by authority in its due use and not to shew them how far they are bound to be subject and in what cases they may resist For had he such a meaning at that time when the Governours
though not on the contrary for the necessary connexion of other power to it is one of the greatest limitations A subordination of Causes doth not ever prove the supreme Cause of limited virtue a co-ordination doth alwayes Reas 3 Thirdly I prove it from the ancient ordinary and received denominations for the Kings Majesty is called out Liege that is Legall Soveraigne and we his Liege that is his Legall Subjects what doe these names argue but that his Soveraignty and our subjection is legall that is restrained by Law Reas 4 Fourthly had we no other proofe yet that of Prescription were sufficient In all ages beyond record the Lawes and Customes of the Kingdome have been the Rule of Government Liberties have been stood upon and Grants thereof with limitations of Royall power made and acknowledged by Magna Charta and other publike and solemne acts and no Obedience acknowledged to be due but that which is according to Law nor claimed but under some pretext and title of Law Reas 5 Fifthly the very Being of our Common and Statute Lawes and our Kings acknowledging themselves bound to governe by them doth prove and prescribe them Limited for those Lawes are not of their sole composing nor were they established by their sole Authority but by the concurrence of the other two Estates so that to be confined to that which is not meerly their owne is to be in a limited condition Pleaders for defensive armes Sect. 2. 4. Some there be which have lately written on this subject who take another way to prove our Government limited by Law viz. by denying all absolute Government to be lawfull affirming that Absolute Monarchy is not at all Gods Ordinance and so no lawfull power secured from resistance What is their ground for this God allowes no man to rule as he list nor puts mens lives in the pleasure of the Monarch It is a power arbitrary and injurious But I desire those Authors to consider that in absolute Monarchy there is not a resignation of men to any Will or list but to the reasonable Will of the Monarch which having the Law of reason to direct it is kept from injurious acts But see for defence of this Government Part 1. cap. 2. Having set downe those Reasons on which my Judgement Sect. 3 is setled on this side I will consider the maine Reasons wherby some have endeavoured to prove this Government to be of an absolute nature and will shew their invalidity Many Divines perhaps inconsiderately perhaps wittingly for self ends have beene of late yeares strong Pleaders for Absolutenesse of Monarchicall Power in this Land and pressed Obedience on the Consciences of People in the utmost extremity which can be due in the most absolute Monarchy in the world but I seldome or never heard or read them make any difference of Powers but usually bring their proofes from those Scriptures where subjection is commanded to the higher Powers and all resistence of them forbidden and from Examples taken out of the manner of the government of Israel and Judah as if any were so impious to contradict those truths and they were not as well obeyed in Limited Government as in Absolute or as if Examples taken out of one Government do alwayes hold in another unlesse their aime were to deny all distinction of Governments and to hold all absolute who have any where the supreme power conveyed to them Among these I wonder most at that late discourse of Dr. Ferne who in my Judgement avoucheth things inconsistent and evidently contradictory one to the other For in his Preface he acknowledges our Obedience to be limited and circumscribed by the Lawes of the Land and accordingly to be yeelded or denied to the higher Power and that he is as much against an absolute Power in the King and to raise him to an arbitrary way of Government as against resistence on the Subjests part also that his power is limited by Law Sect. 5. Yet on the other side he affirmes That the King holds his Crown by conquest that it is descended to him by three Conquests Sect. 2. that we even our Senate of Parliament hath not so much plea for resistence as the ancient Romane Senate had under the Romane Emperours whose power we know was absolute Sect 2. that in Monarchy the judgement of many is reduced ro one that Monarchy settles the chief power and finall Judgment in one Sect. 5 what is this but to confesse him limited and yet to maintain him absolute Arguments on the contrary dissolved But let us come to the Arguments First say they our Kings came to their right by Conquest yea saies the Dr. by three Conquests He meanes the Saxons Danes and Normans as appears afterwards Therefore their right is absolute Here that they may advance themselves they care not though it be on the ruine of publique liberty by bringing a whole Nation into the condition of conquered slaves But to the Argument 1. Suppose the Antecedent true the Consequution is not alwaies true for as is evident before in the first Part. All Conquest doth not put the Conqueror into an absolute right He may come to a right by Conquest but not sole Conquest but a partiall occasioning a Right by finall Agreement and then the right is specificated by that fundamentall agreement Also he may by sword prosecute a claime of another nature and in his war intend only an acquiring of that claimed right and after conquest rest in that Yea farther he may win a Kingdome meerly by the Sword and enter on it by right of Conquest yet considering that right of conquest hath too much of force in it to be safe and permanent he may thinke conquest the best meane of getting a Kingdome but not of holding and in wisdome for himselfe and posterity gaine the affections of the people by deserting that Title and taking a new by Politique agreement or descend from that right by fundamentall grants of liberties to the people and limitations to his own power but these things I said in effect before in the first part only here I have recalled them to shew what a non sequitur there is in the Argument But that which I chiefly intend is to shew the infirmity or falsehood of the Antecedent it is an Assertion most untrue in it selfe and pernitious to the State Our Princes professe no other way of comming to the Crown but by right of succession to rule free subjects in a legall Monarchy All the little shew of proofe these Assertors have is from the root of succession So William commonly called the Conquerour For that of the Saxons was an expulsion not a Conquest for as our Histories record They comming into the Kingdome drove out the Britaines and by degrees planted themselves under their Commanders and no doubt continued the freedome they had in Germany unles we should thinke that by conquering they lost their own Liberties to the Kings for whom they conquered and
preserving it in his owne hands having made direct and particular promises to assure us of their upholding against all subvertion by his own power so that here is assurance enough without visible meanes of force for a spirituall body which lives by faith But in a civill State there is no such assurance nor supporting promises power onely in the undefined being of it being Gods immediate Ordinance and not in this specificated or determinate being wherefore it hath no such immediate provision made for its preservation no promise of a divine power for its standing but as it is left by God to mens wisdome to contrive the frame so to their providence to establish meanes of preservation As the body is outward and Civill so the upholding meanes must be such spirituall and infallibly assuring a Formed State hath not as the Church and Faith have if there be none of outward force and power neither then none at all it hath and is in ill case indeed But there is an art full of venome when a truth can not bee beaten downe by just reasoning then to make it odious by hatefull comparisons so in this case aspersions are cast as if the Patrons of Resistence did borrow the Popish and Jesuiticall grounds and their Positions as dangerous to Kings as the Jesuites hell-bred and bloudy Principles whereas it appeares by all this discourse and I am perswaded is written in Capitall Letters in the very Conscience of them which despitefully object it that there is no congruity at all 'twixt their Doctrines no more then 'twixt Light and Darknesse Thirdly because such power is due to a publike State for Arg. 3 its preservation as is due to a particular person But every particular person may lawfully by force resist illegall destructive Ministers though sent by the command of a legall Soveraigne provided no other meanes of selfe-preservation be enough This Assumption the Doctor seemes to grant he denies it to be lawfull against the Person of the Prince but in effect yeelds it against subordinate persons But the main is against the Proposition and the Doctor is so heavie a friend to the State that he thinkes it not fit to allow it that liberty he gives every private man But whose Judgement will concurre with his herein I cannot imagine for sure the Reason is greater the publike safety being far more precious and able to satisfie the dammages of a publike resistence then one particular mans is of a private But of this more in answer to his Reasons Fourthly because it is a power put into the two Estates by Arg. 4 the very reason of their Institution and therefore they not onely may but also ought to use it for publike safety yea they should betray the very trust reposed in them by the Fundamentals of the Kingdome if they should not An authority Legislative they have Now to make Lawes and to preserve Lawes are acts of the same power yea if three powers jointly have interest in making of Lawes surely either of these severally have and ought to use that power in preserving them Also that the authority which the Houses have is as well given them for preserving the government by established lawes as for establishment of lawes to govern by is a truth proved by the constant use of their power to that end in correcting the exorbitance of inferiour Courts questioning delinquent Judges and Officers of State for violations and much is done in this kinde by the sole authority of the Houses without the concurrence or expectance of Royall power so then supposing they have such an authority for safety of publike Government to question and censure inferiour Officers for transgressions though pretending the Kings authority can it be denied but that their authority will beare them out to use forcible resistence against such be Arg. 5 they more or fewer Fifthly the Kings Warrant under his hand exempts not a Malefactor from the censure of a Court of Justice nor punishment imposed by Law but the Judge must proceed against him according to Law for the Law is the Kings publike and authoritative Will but a private Warrant to doe an unlawfull act is his private and unauthoritative Will wherefore the Judge ought to take no notice of such Warrant but to deale with the Offendor as no other then a private man This proves that such Instruments thus illegally warranted are not authorized and therefore their violence may be by force resisted as the assaults of private men by any and then much rather by the Houses of Parliament which supposing them divided from the King to have no complete authority yet sure they have two parts of the greatest Legislative authority But I feare I shall seeme superfluous in producing Arguments to prove so cleare a truth Is it credible that any one will maintaine so abject an esteeme of their authority that it will not extend to resistence of private men who should endevour the subversion of the whole frame of Government on no other Warrant then the Kings Will and Pleasure Must they be meerly passive Is patience and the deniall of their Votes to a subversion all the opposition they must use if a King which God forbid should on his Royall pleasure send Cut-throats to destroy them as they sit in their Houses Is all their authority if the King desert them or worse no more then to Petition and suffer and by a moderate use of their power of denying dissent from being willing to be destroyed If power of resisting by force of subverters armed by the Kings Will for by his Authority they cannot be unlawfull for them all these absurdities must follow yea the vilest Instrument of Oppression shewing but a Warrant from the King to beare him out may range and rage all his dayes through a Kingdome to waste and spoile taxe and distraine and at utmost of his insolence must have no more done to him by the Parliament it selfe then to stay his hand as the basest Servant may his Masters or the meanest Subject the Kings owne hand by the Doctors own confession Consider then and admire if any men of learning will deny this power of forcible resistence of Ministers of subverting commands to be lawfull I have thus far confirmed my assertion not that I finde any openly opposing it but because the Doctor and some other seeme to have a mind that way and doe strike at it though not professedly and in open dispute For the severall proofes brought in behalfe of Resistence some of them prove as much as is here asserted others are not to the purpose Particularly that of the Peoples rescuing Jonathan from his Fathers bloudy resolution proves lawfulnesse of hindering unreasonable self-destructive purposes even in absolute Monarchies if it prove any thing That of Vzzal's thrusting out by the Priests is not to the purpose but Davids raising and keeping Forces about him and his purpose at Keilah proves the point directly viz. Lawfulnesse of forcible resistance
did altogether crosse those ends of their Ordination he had taught them rather a Doctrine of Resistence then Subjection shall we conceive that hee would presse subjection to Powers in the hands of Heathens and Persecutors if he had not intended they should passively be subject unto them even under those Persecutions Rather I approve the received Doctrine of the Saints in ancient and moderne times who could never finde this licence in that place of the Apostle and doe concurre with Master Burroughs Answ to Dr. Ferne Sect. 2. professing against resistence of authority though abused If those saies he who have power to make Lawes make sinfull Lawes and so give authority to any to force obedience we say here there must be either flying or passive Obedience And againe We acknowledge we must not resist for Religion if the Lawes of the land be against it But what doe they say against this In making such Lawes against Religion the Magistrates are not Gods ordinance and therefore to resist is not to resist Gods ordinance As an inferiour Magistrate who hath a Commission of Power for such ends is resistible if hee exceed his Commission and abuse his Power for other ends so Princes being Gods Ministers and having a deputed Commission from him to such ends viz. the promotion of godlinesse Peace Justice if they pervert their power to contrary ends may be resisted without violation of Gods ordinance That I may give a satisfactory answere to this which is the summe of their long discourse I must lay it downe in severall Assertions First I acknowledge Gods ordinance is not onely Power Assert 1 but Power for such ends sc the good of the People Secondly it is also Gods ordinance that there should be Assert 2 in men by publike consent called thereto and invested therein a power to choose the meanes the Lawes and Rules of government conducing to that end and a power of Judging in relation to those Lawes who be the well doers which ought to be praised and who the evill doers who ought to be punished This is as fully Gods ordinance as the former for without this the other cannot be performed Thirdly when they who have this finall civill Judicature Assert 3 shall censure good men as evill doers or establish iniquity by a Law to the encouragement of evill doers in this case if it be a subordinate Magistrate doth it appeale must bee made as Saint Paul did to the supreme if it be the supreme which through mistake or corruption doth mis-censure from whom there lyes no Civill Appeale then without resistence of that Judgement wee must passively submit And he who in his owne knowledge of innocency or goodnesse of his cause shall by force resist that man erects a Tribunal in his owne heart against the Magistrates Tribunal cleares himselfe by a private Judgement against a publike and executes his owne sentence by force against the Magistrates sentence which hee hath repealed and made void in his owne heart In unjust Censures by the highest Magistrate from whom there is no Appeale but to God the sentence cannot be opposed till God reverse it to whom we have appealed In the meane time vvee must suffer as Christ did notwithstanding his Appeale 1 Pet. 2.23 and so must wee notwithstanding our Appeale 1 Pet. 4 19. for he did so for our example If an Appeale to God or a censure in the Judgement of the condemned might give him power of resistence none would be guilty or submit to the Magistrates censure any further â—hen they please I desire those Authors before they settle their judgement in such grounds which I feare will bring too much scandall to weigh these particulars First their opinion takes away from the Magistrate the chiefe part of Gods ordinance sc povver of definitive judgement of Lawes and Persons who are the good and who the bad to be held so in Civill proceedings Secondly they justifie the Conscience of Papists Heretickes and grossest Malefactors to resist the Magistrate in case they be perswaded their cause is good Thirdly they draw men off from the commands of Patience under persecution and conforming to Christ and his Apostles in their patient enduring without verball or reall opposition though Christ could not have wanted power to have done it as he tells Peter Fourthly they deprive the Primitive and Moderne Martyrs of the glory of suffering imputing it either to their ignorance or disability Fifthly it is a wonder that sith in Christs and his Apostles time there was so much use of this power of resistence they would by no expresse word shew the Christians this liberty but condemne resistence so severely Sixthly there is in the case of the Parliament now taking up Armes no need of these offensive grounds Religion being now a part of our Nationall Law and cannot suffer but the Law must suffer with it Sect. 2 Now to the proposed Question I answere first Negatively sc 1. 1. When arms ought not to be assumed It ought not to be done against all illegall proceedings but such which are subversive and unsufferable Secondly not publike resistence but in excesses inducing publike evils for to repell private injuries of highest nature with publike hazzard and disturbance will not quit cost unlesse in a private case the common Liberty be strooke at Thirdly not when the government is actually subverted and a new forme though never so injuriously set up and the People already engaged in an Oath of absolute subjection for the remedy comes too late and the establishment of the new makes the former irrevocable by any justifiable power within the compasse of that Oath of God This was the case of the Senate of Rome in Saint Pauls time 2. When they may be assumed Secondly affirmatively I conceive three cases when the other Estates may lawfully assume the force of the Kingdome the King not joyning or dissenting though the same be by Law committed to him First when there is invasion actually made or imminently feared by a forraigne Power Secondly when by an intestine Faction the Lawes and Frame of government are secretly undermined or openly assaulted In both these cases the Being of the Government being endangered their trust binds as to assist the King in securing so to secure it by themselves the King refusing In extreme necessities the liberty of Voices cannot take place neither ought a Negative Voice to hinder in this exigence there being no freedome of deliberation and choice when the Question is about the last end Their assuming the sword in these cases is for the King whose Being as King depends on the Being of the Kingdome and being interpretatively his act is no disparagement of his Prerogative Thirdly in case the Fundamentall Rights of either of the three Estates bee invaded by one or both the rest the wronged may lawfully assume force for its owne defence because else it were not free but dependent on the pleasure of the other Also the suppression of
evident that a Court is the seat and subject of Authority and power and not barely of counsell and advice Object 2 Secondly the two Houses together with the King are the supreme Court of the Kingdome but taken divisely from the King it is no Court and consequently hath no power Sol. Suppose them no entire Court divided from the King yet they are two Estates of the three which make up the supreme Court so that they have a power and authority though not complete and sufficing to perfect an Act without the concourse of the third For it appeares by the Acts of that Court that every of the three Estates hath a Legislative power in it every Act being enacted by the Kings most excellent Majesty and by the Authority of the Lords and Commons assembled in Parliament Sect. 3 Thirdly they have an authority but in subordination to Object 3 the King and derived from him as his Parliament Indeed this is a maine Question and hath very weighty Arguments on both sides Whether the authority of the two Houses be derived from the King viz. Whether the authority of both the Houses be a subordinate authority and derived from the King as its originall Three Reasons seeme strong for the affirmative First because it is his Parliament so called and acknowledged If his Court then the power whereby they are a Court is his power derived from him as the power of other Courts is Secondly because he hath the power of calling and dissolving it Thirdly because he is acknowledged in the Oaths of Allegeance and Supremacy to be the Head and of supreme authority in the Kingdome and all subject to him And whereas some make answere that he is Singulis major but Vniversis minor Treatise entitituled A fuller Answer to Dr. Ferne. so the Answerer to Doctor Ferne I wonder that the Proposition of the Observator that the King is Vniversis minor should be so much exploded Every member scorsiâ—â— is a subject but all collection in their houses are not And hee sayes simply the Houses are co-ordinate to the King nor subordinate that the Lords stile Comites or Peeres implies in Parliament a co-ordinative society with his Majesty in the Government I conceive this Answerer to avoid one extreme falls on another for this is a very overthrow of all Monarchy and to reduce all Government to Democracy For looke where the apex potestatis is there is the Government Also it is against Common Reason For the King is he not King of the Kingdome and what is the Kingdome but all united all the particulars knit together in one body politick so that if he be King of the Kingdome he is Vniversis major too for the King is major and the Kingdome is the united universe of the People Thus those expressions are some of them false some though secundum quid true yet spoken simply and in that manner are scandalous and incompatible to Monarchy Thus you see what may be said on the one side to prove the King to be the originall of all power even of that which is in the Houses of Parliament assembled On the other side are as weighty Arguments to prove the contrary viz. That the two Houses authority is not dependent nor derived from the Royall power First the authority of the Houses being Legislative is the supreme and so cannot bee derived Three concurrent Powers producing one supreme act as con-cause joint causes of the same highest effect cannot have a subordination among themselves in respect of that casualty it not being imaginable how a power can cause the supreme effect and yet be a subordinate and derived power Secondly the end of constituting these two Estates being the limiting and preventing the excesses of the third their power must not be totally dependent and derived from the third for then it were unsuitable for the end for which it was ordained For to limit an Agent by a power subordinate and depending on himself is all one as to leave him at large without any limitation at all Thirdly that which hath beene spoken of a mixed Monarchy doth fully prove that the two other powers which concurre with the Monarch to constitute the mixture must not be altogether subordinate to it and derived from it I must professe these Reasons to prevaile with me that I cannot conceive how the authority of the two Houses can in the whole being of it be a dependent and derived power That we may find out the truth amidst this potent contradiction Sect. 4 of both sides Resolution of the Question recourse must be had to the Architecture of this Government whereof I must declare my self to be so great an Admirer that what ever more then humane wisedom had the contriving of it whether done at once or by degrees found out and perfected I conceive it unparalleld for exactnesse of true policy in the whole world such a care for the Soveraignty of the Monarch such a provision for the liberty of the People and that one may bee justly allayed and yet consist without impeachment of the other that I wonder how our Forefathers in those rude unpolished times could attain such an accurate composure First then suppose a people either compelled to it by conquest or agreeing to it by free consent Nobles and Commons set over themselves by publike compact one Soveraigne and resigne up themselves to him and his heires to be governed by such and such Fundamentall Lawes there 's a supremacy of power set up though limited to one course of exercise Secondly then because in all Governments after cases will come it requiring an addition of Lawes suppose them covenanting with their Soveraigne that if cause be to constitute any other Lawes hee shall not by his sole power doe that worke but they reserve at first or afterwards it is granted them which is all one a hand of concurrence therein that they will be bound by no Lawes but what they joyne with him in the making of Thirdly because though the Nobles may personally convene yet the Commons being so many cannot well come together by themselves to the doing of such a worke it be also agreed that every Corporation of the Commons shall have power to depute one or more to be for the whole in this publike legislative businesse that so the Nobles by themselves the Commons by their Deputies assembling there may be representatively the whole body having Commission to execute that reserved authority for establishing new Lawes Fourthly because the occasion and need of making new Lawes and authentick expounding the old would not be constant and perpetuall and it would carry an appearance of a Government in which were three Heads and chiefe Powers they did not stablish these Estates to be constantly existent but occasionally as the causes for which they were ordained should emerge and happen to be Fifthly because a Monarchy was intended and therefore a Supremacy of power as farre as possible must be
of Cut-throats even though Saul himselfe were in presence This the Doctor sees plainly and therefore shuffles it off by saying His example is extraordinary as if he were not a present Subject because he was designed by Gods revealed counsell to be a future King And he confesses Elisha's example of shutting the doore against the Kings messenger proves personall defense against sudden illegall assaults of messengers which is the thing in Question Sect 4 Let us now view the strength of what is said against resistence whether any thing comes home against this Assertion Arguments on the contrary dissolved The Doctors proofes from the old Testament come not to the matter Moses and afterwards the Kings were of Gods particular designation setting them absolutely over the people on no condition or limitation so that did they prove any thing yet they concerne not us respecting a Government of another nature But particularly that of Corah and the Princes rebelling against Moses is not to the matter it was a resistence of Moses owne Person and Office and doubtlesse penury of other proofes caused this and the rest here to be alledged For that 1 Sam. 8 18. how inconsequent is it to say the people should cry unto the Lord therefore they had no other meanes to helpe them but cries to God though I confesse in that Monarchy they had not That speech 1 Sam. 26 9. was most true there and is as true here but not to the purpose being spoken of the Kings owne Person But the maine authority brought against resistence is that Rom. 13. and on that Doctor Ferne builds his whole discourse Let us therefore something more largely consider what is deduced out of that Text. First he supposes the King to be the Supreme in Saint Peter and the Higher power in Saint Paul Secondly hee collects All persons every soule is forbidden to resist Thirdly that then was a standing Senate which not long before had the supreme Power in the Romane State It is confessed but that they could challenge more at that time when Saint Paul writ then our great Councell will or can I deny For that State devolving into Monarchy by Conquest they were brought under an Absolute Monarchy the Senate it selfe swearing full subjection to the Prince his Edicts and Acts of Will were Lawes and the Senates consent onely pro forma and at pleasure required He who reads Tacitus cannot but see the Senate brought to a condition of basest servitude and all Lawes and Lives depending on the will of the Prince I wonder then the Doctor should make such a parallel Indeed the Senate had been far more then ever our Parliaments were or ought to be but now that was far lesse then our Parliament hath been or I hope ever will be They were become the sworne Vassals of an absolute Emperour ours the sworne Subjects of a Liege or Legall Prince Fourthly he sayes then was more cause of Resistence when Kings were Enemies to Religion and had overthrown Lawes and Liberties I answere There were no causes for Resistence Not their enmity to Religion had they but a legall power because Religion then was no part of the Laws and so its violation no subversion of established government And for the overthrow of Lawes and Liberties that was past and done and the government new the Senate and all the rest actually sworne to absolute Principality Now an Ordinance of absolute Monarchy was constituted the sacred bond of an Oath had made it inviolate But what would he inferre hence all being granted him Sure this he doth intend That every soule among us severall and conjoyned in a Senate must be subject for conscience must not resist under paine of Damnation All this and what ever besides he can justly infer out of that Text we readily grant But can any living man hence collect that therefore no resistence may be made to fellow-subjects executing destructive illegall acts of the Princes will in a legall Monarchy Will he affirme that the Ordinance of God is resisted and Damnation incurred thereby Gods Ordinance is the Power and the Person invested with that power but here force is offered to neither as before I have made it appeare And herein we have B. Bilsoâ— consenting where he sayes Biâ—sâ—n of subjeâ—â— p 94 280. that the superiour power here forbidden to be resisted is not the Princes will against his Lawes but agreeing with his Lawes I thinke the day it selfe is not more cleare then this satisfaction to all that can bee concluded out of that Text so the foundation of all that discourse is taken from it if his intent were thence to prove unlawfulnesse of Resistence of Instruments of Arbitrarinesse in this Kingdome Let us also consider the force of his Reasons whether they impugne this point in hand He sayes such power of resistence would be no fit meanes of safety to a State but prove a remedy worse then the diseases His Reasons first because it doth tend to the overthrow of that order which is the life of a Common-wealth it would open a way to People upon the like pretences to resist and even overthrow power duly administred 2 It may proceed to a change of government 3. It is accompanied with the evills of Civill-Warre 4. On the same ground the two Houses proceed against the King may the people proceed to resistence against them accusing them not to discharge their trust Lastly seeing some must be trusted in every State It is reason the highest and finall trust should be in the highest power These are his main reasons on which he builds his conclusion against resistence To his first I say it were strange if resistence of distructive disorder should tend to the overthrow of Order It may for the time disturbe as Physick while it is in working disturbes the naturall bodie if the peccant humors make strong opposition but lure it tends to health and so doth this resistence of disorder to Order Neither would it open a way for the people to violate the Powers for doing right can open no way to the doing of wrong If any wicked seditious spirits should make use of the Vail of Justice to cover unnaturall Rebellion Shall a peoples right and liberty be taken from them to prevent such possible abuse Rather let the foulnesse of such pretences discover it selfe so God and good men will abhorre them such Cloakes of Rebellion have in former ages been taken off and the Authors brought to just confusion without the expence of the liberties of this Kingdome To the second must not Instruments be resisted which actually intend and seeked a chang of Government because such resistence may proceed to a chang of Government Is not an unlikely possibility of change to be hazarded rather then a certaine one suffered But I say It cannot proceed to a chang of Government unles it exceed the measure of lawfull resistence yea it is impossible that resistence of Instruments should ever proceed to
either of them or the diminishing of their Fundamentall Rights carries with it the dissolution of the Government And therefore those grounds which justifie force to preserve its Being allowes this case which is a direct innovation of its Being and Frame CHAP. VII Where the Legall Power of Finall judging in these cases doth reside Quest 7. in case the three Estates differ about the same IN this Question for our more distinct proceeding some Sect. 1 things are necessarily to be observed First The Question stated that we meddle not here with the judicature of Questions of inferiour nature viz. such as are 'twixt subject and subject or the King and a subject in matter of particular right which may be decided other way without detriment of the publike Frame or diminution of the priviledges of either of the three Estates Secondly difference is to be made even in the Questions of utmost danger First for it may be alledged to be either from without by invasion of forrain Enemies or by a confederacy of intestine subverters in which neither of the three Estates are alledged to be interessed and so the case may be judged without relation to either of them or detriment to their priviledges Here I conceive a greater latitude of power may be given to some to judge without the other for it inferres not a subordinating of any of the three to the other Secondly or else it may be alledged by one or two of the Estates against the other that not contenting it selfe with the Powers allowed to it by the Lawes of the Government it seekes to swallow up or entrench on the priviledges of the other either by immediate endevours or else by protecting and interessing it selfe in the subversive plots of other men Thirdly in this case wee must also distinguish betwixt first authority of raising Forces for defense against such subversion being knowne and evident secondly and authority of judging and finall determining that the accused Estate is guilty of such designe and endevour of subversion when it is denied and protested against This last is the particular in this Question to be considered not whether the People are bound to obey the authority of two or one of the Legislative Estates in resisting the subversive assaies of the other being apparent and self-evident which I take in this Treatise to be cleare But when such plea of subversion is more obscure and questionable which of the three Estates hath the power of ultime and supreme judicature by Vote or sentence to determine it against the other so that the People are bound to rest in that determination and accordingly to give their assistance eo nomine because it is by such Power so noted and declared Determination of the Question For my part in so great a cause if my earnest desire of publique good and peace may justifie me to deliver my minde I will prescribe to the uery Question for it includes a solecisme in government of a mixt temperature To demand which Estate may challenge this power of finall determination of Fundamentall controversies arising betwixt them is to demand which of them shall be absolute For I conceive that in the first part hereof I have made it good that this finall utmost controversie arising betwixt the three Legislative Estates can have no legall constituted Judge in a mixed government for in such difference he who affirmes that the people are bound to follow the Judgement of the King against that of the Parliament destroyes the mixture into absolutenesse And he who affirmes that they are bound to cleave to the Judgement of the two Houses against that of the King resolves the Monarchie into an Aristocracie or Democracie according as he places this finall Judgement Whereas I take it to be an evident truth that in a mixed government no power is to be attributed to either Estate which directly or by necessary consequence destroyes the liberty of the other Yet it is strange to see how in this Epidemicall division of Sect. 2 the Kingdome the Abettors of both parts claime this unconcessible Judgement But let us leave both sides pleading for that which we can grant neither and weigh the strength of their Arguments First Dr. Ferne layes downe two reasons Dissolution of Arguments placing it in the King why this finall Judgement should belong to the Kingâ— 1. Monarchie saies he Sect. 5. settles the chiefe power and finall Judgement in one This Position of his can be absolutely true no where but in absolute Monarchies and in effect his book knowes no other then absolute government 2. Seeing some one must be trusted in every State It is reason saies he Sect 5. the highest and finall trust should be in the higher and Supreame power I presume by finall trust he meanes the trust of determining these Supreame and finall disagreements and accordingly I answer It is not necessary that any one be trusted with a binding power of Judicature in these cases for by the foundations of this government none is yea none can be trusted with it for to intend a mixed government and yet to settle the last resolution of all judgement in one is to contradict their very intention Neither in a constituted government must we dispose of powers according to the guesse of our reason for mens apprehensions are various The Dr. thinkes this power fittest for the King His answerers judge it fittest for the two Houses and give their reasons for it too Powers must there reside where they are de facto by the Architects of a government placed he who can bring a fundamentall Act stating this power in any saies something to the matter but to give our conjectures where it should be is but to provide fuell for contention Dissolution of the â—rguments placing it in the two Houses On the contrary The Author of that which is called A Fuller Answer to that Dr. hath two maine Assertions placing this Judgement in the two Houses 1. The finall and casting result of this States Judgement concerning what these Lawes dangers and meanes of prevention are resides in the two Houses of Parliament saies he p. 10. 2. In this finall resolution of the States Judgement the people are to rest ibidem pag. 14. Good Lord What extream opposition is between these two sorts of men If the maintenance of these extremes be the ground of this warre then our Kingdome is miserable and our Government lost which side soever overcome for I have more then once made it good that these Assertions are destructive on both sides But I am rather perswaded that these Officious Propugners overdoe their worke and give more to them whose cause they plead then they ever intended to assume Nay rather give to every one their due give no power to one of these three to crush and undoe the other at pleasure But why doth this Answer give all that to the two Houses which ere while they would not suffer when the
Judges in the case of Ship-money had given it to the King sure when they denied it to him they did not intend it to themselves 1. Hee tells us In them resides the reason of the State And that the same reason and Judgement of the State which first gave this government its being and constitution therefore all the people are to be led by it and submit to it as their publique reason and Judgement I answer If by state he meane the whole Kingdome I say the reason of the two Houses divided from the King is not the reason of the Kingdome for it is not the Kings reason who is the head and chiefe in the Kingdome If by state be meant the people then it must be granted that as farre forth as they represent them their reason is to be accounted the reason of the Kingdome and doth binde so farre forth as the publique reason of the Kingdome can binde after they have restrained their reason and will to a condition of subjection so that put case it be the reason of the state yet not the same which first gave this Government its being for then it was the reason of a State yet free and to use their reason and Judgement in ordaining a Government but now the reason of a State bound by Oath to a Government and not at liberty to resolve againe Or to assume a supreme power of judging distructive to the frame of Government they have established and restrained themselves unto Their reason is ours so farre as they are an ordained representative body But I have before demonstrated that in this frame the Houses could not be ordained a legall Tribunall to passe Judgement in this last case for then the Architects by giving them that Judicature had subordinated the King to them and so had constituted no Monarchie 2. He argues the Parliament being the Court of supreme Judicature and the Kings great and highest Councell therefore that is not to be denied to it which inferiour Courts ordinarily have power to do viz To judge matters of right betweene the King and Subject Yea in the highest case of all The Kings power to tax the subject in case of danger and his being sole Judge of that danger was brought to cognizance and passed by the Judges in the Exchequor I answer 1. There is not the same reason betwixt the Parliament other courts In these â—he King is Judge the Judges being deputed by him and judging by his authority so that if any of his Rights be tried before them it is his owne Judgement and he judges himselfe and therefore it is fit he should be bound by his owne sentence But in Parliament the King and People are Judges and that not by an authority derived from him but originally invested in themselves So that when the two Estates judge without him in any case not prejudged by him it cannot be called his Judgement as that of the other Courts being done by his authority and if he be bound by any Judgment of the two Estates without him he is bound by an externall power which is not his owne that is he is subordinated to another power in the State where he is supreme which is contradictory Secondly in other Courts if any case of right be judged 'twixt him and the subject they are cases of particular Rights which diminish not Royalty if determined against him Or if they passe cases of generall right as they did in that of Ship-money it is but declaratively to shew what is by Law due to one and the other yet their Judgement is revocable and liable to a repeale by a superiour Court as that was by Parliament But if the Kings Prerogatives should be subjected to the Judgement of the two Estates the King dissenting then he should be subject to a sentence in the highest Court and so irremediable a Judicatory should be set up to determine of his highest Rights without him from which he could have no remedy Thus maine causes may bee alledged why though other Courts doe judge his Rights yet the two Estates in Parliament without him cannot and it is from no defect in their power but rather from the eminency of it that they cannot If one deputed by common consent of three doth by the power they have given them determine controversies betweene those three it is not for either of them to challenge right to judge those cases because one who is inferiour to them doth it Indeed if the power of the two Houses were a deputed power as the power of other Courts is this Argument were of good strength but they being concurrents in a supreme Court by a power originally their owne I conceive it hard to put the power of finall Judgement in all controversies 'twixt Him and them exclusively or solely into their hands If it be demanded then how this cause can be decided Sect. 3 and which way must the People turne in such a contention What be done in such a Contention I answere If the non-decision be tolerable it must remaine undecided whiles the Principle of legall decision is thus divided and by that division each suspends the others power If it be such as is destructive and necessitates a determination this must be made evident and then every Person must aide that Part which in his best Reason and Judgement stands for publike good against the destructive And the Lawes and Government which he stands for and is sworne to justifies and beares him out in it yea bindes him to it If any wonder I should justifie a power in the two Houses to resist and command aide against any Agents of destructive commands of the King and yet not allow them power of judging when those Agents or commands are destructive I answere I doe not simply deny them power of judging and declaring this but I deny them to be a legall Court ordained to judge of this case authoritatively so as to bind all People to receive and rest in their judgement for conscience of its authority and because they have Voted it 'T is the evidence not the power of their Votes must bind our Reason and Practice in this case We ought to conceive their Votes the Discoveries made by the best eyes of the Kingdome and which in likelihood should see most But when they Vote a thing against the proceedings of the Third and supreme Estate our Consciences must have evidence of Truth to guide them and not the sole authority of Votes and that for the Reason so oft alledged CHAP. VIII The contention now in being is debated and the readiest meanes of Reconcilement proposed THus have I for my owne satisfaction and the Conscience Sect. 1 of every moderate and impartiall man who will peruse the same set downe what I verily conceive to be the truth concerning those high matters first of Monarchy in generall and then of this of England and have given my determination concerning all the weighty Questions which