doth not receive them so Now in such a constituted Kingdome where the very Constitution its selfe is the fundamentall law of its owne preservation as is this mixt Regiment of ours consisting of King and Parliament as Head and Body comprehending Monarchie Aristocracie and Democracie there the fundamentall laws are like fundamentall truths in these two properties First they are comprehended in a very little room to wit honour and safety and secondly they have their influence into to all other inferiour Laws which are to be subjected to them and correspondent with them as lawful children and naturall branches Ob. But in processe of time there are many written Laws which séem at least to contradict this Fundamentall Constitution and are not they binding notwithstanding it Ans The Constitution of this Kingdome which gave it its being and which is the radicall and fundamentall law thereof ought therefore to command in chiefe for that it never yéelds up its authority to those inferiour laws which have their being from it nor ought they which spring from it tend to the destruction of it but on the contrary it is to derive its radicall virtue and influence into all succéeding laws and they like branches are to make the root flourish from whence they spring with exhibiting the lively and structifying virtue thereof according to the nature and seasons of succéeding times things incident in after-ages not being able to be fore-seen and particularly provided for at the beginning saving in the fundamentall law of Salus populi politiquely established nor can any laws growing out of that root bear any other fruit then such as the nature thereof dictates for for a particular branch to ruine the whole foundation by a séeming sense contrary to it or differing from it is very absurd for then how can it be said Thou bearest not the root but the root thée Laws must alwayes relish of and drink in the constitution or polity where they are made and therefore with us the laws wherein the King is nominated and so séems to put an absolute authority into his hands must never so be construed for that were with a breath to blow downe all the building at once but the King is there comprehended and meant under a two-fold notion First as trusted being the Head with that power the Law conferd upon him for a Legall and not an absolute purpose tending to an honourable preservation not an unnaturall dissolution Secondly as meaning him juridically not abstractly or personally for so onely the Law takes notice of the King as a juridicall person for till the Legislative power be absolutely in the King so that laws come down from him to his people and goe not up from them to him they must ever be so interpreted for as they have a juridicall being and beginning to wit in Parliament so must they have a sutable execution and administration to wit by the Courts and legall Ministers under the Kings authority which according to the constitution of this Kingdome he can no more suspend for the good of his people then the Courts can theirs or if he doe to the publique hazard then have the Courts this advantage that for publique preservation they may and must provide upon that principle The King can doe no wrong neither in withholding justice nor protection from his people So that then Salus populi being so principally respected and provided for according to the nature of our constitution and polity so being Lex legum or the rule of all laws branching thence Then if any law doe by variation of times violence of tyrannie or misprision of Interpreters vary there-from it is a bastard and not a son and is by the lawful parents either to be reduced or cast out as gendring unto bondage and ruine of the inheritance by attempting to erect an absolute and arbitrary Government Nor can this equitable exposition of particular Statutes taken from the scope of the politique constitution be denyed without overthrow of just and legal Monarchy which ever tends to publique good and preservation and the setting up of an unjust and illegall tyrannie ruling if not without law yet by abused laws turning them as conquered ordnance upon the people The very Scripture it selfe must borrow from its scope and principles for explanation of particular places else it will be abused as it is through that default unto Heresies Sée we not how falsely Satan quoted true Scripture to Christ when he tempted him onely by urging the letter without the equity or true intention and meaning We are to know and doe things verum verè justum justè else we neither judge with righteous judgement nor obey with just obedience Ob. But is not the Parliament guilty of exercising an arbitrary power if their procéedings be not regulated by written laws but by Salus populi Ans For the Parliament to be bound up by written laws is both destructive and absurd First it is destructive it being the Fundamental Court and Law or the very Salus populi of England and ordained as to make laws and sée them executed so to supply their deficiencie according to the present exigencie of things for publique preservation by the prerogative of Salus populi which is universally in them and but particularly in particular laws and statutes which cannot provide against all future exigents which the law of Parliaments doth and therefore are not they to be limits to this And it would yet be further destructive by â—utting the Parliament short of half its power at once for it being a Court both of Law and Equity as appears by the power of making laws which is nothing but Equity reduced by common consent into Polity when ever it is ciâ—cumseribed by written laws which onely is the property of inferiour Courts it ceaseth to be supreame and divests it selfe of that inherent and uncircumseribed power which Salus populi comprehends Secondly as it is destructive so also it is absurd for the Legislative power which gives laws is not to receive laws saving from the natâ—re and end of its owne constitution which as they give it a being so they endow it with lâ—ws of preservation both of it selfe the whole which it represents I would not herein be mis-understood as if the Parliament when as it onely doth the office of inferiour Courts judging between party party were not limited by written lawes there I grant it is because therein it only deales between meum tuum which particular written lawes can and ought to determin so that its superlative and uncircumseribed power I intend only as relating to the Universe and the affaires thereof wherein it is to walke by its fundamentall principles not by particular precepts or Statutes which are made by the Parliament betwéen King and people not betwéen people and Parliament they are ordayned to be rules of Government to the King agreeing with the liberty and property of the people and rules of Obedience to the people
without detainment of their freedome by the exercise of an illegall usurped and unconsented power whereunto Kings especially in hereditary Monarchies are very prone which cannot be suspected by a Parliament which is representatively the Publike intrusted for it which is like to partake and share with the Publick being but so many private men put into authority protempore by common consent for common good Nor is the Parliament hereby guilty of an Arbitrary Government or is it destructive to the Petition of Right when as in providing for publick weale it observes not the letter of the law first because as aforesaid that law was not made betwéene Parliament and people but by the people in Parliament betwéene the King and them as appears by the whole tenâ—ur of it both in the complaining and praying parts which wholly relate to the King Secondly because of the common consent that in the representative Body the Parliament is given thereunto wherein England in her Polity imitates Nature in her Instincts who is wont to violate particular principles for publique preservation as when light things descend and heavy ascend to prevent a vacuum and thirdly because of the equitable power which is inherent in a Parliament and for publique good is to be acted above and against any particular Statute or all of them and fourthly because the end of making that Law to wit the publique preservation is sulfild in the breaking of it which is lawfull in a Parliament that is chosen by the whole for the whole and are themselves also of the body though not in a king for therein the Law saith Better a mischeife then an inconuenience But it may be objected though it be not Arbitrary for the Parliament to goe against written law yet is it not so when they go against the Kings consent which the law even the fundamentall law supposeth in Parliamentary proceedings This hath beene answered that the King is juridically and according to the intention of the law in his Courts so that what the Parliament consults for the publick good That by oath and the duty of his office and nature of this polity he is to consent unto and in case he do deny it yet in the construction of the fundamentall law and constitution of this Kingdom he is conceived to grant it supprosing the head not to be so unnaturall to the body that hath chosen it for good and not for evill But it will be answered where is the Kings Negative Voice if the Parliament may proceed without his consent I answer That there is no known nor written law that gives him any and things of that nature are willingly beleeved till they be abused or with too much violence claimed That his Majesty hath fundamentally a right of consent to the enacting of laws is true which as aforesaid is part of that honourable trust constituted in him And that this royall ascent is an act of honoer and not of absolute and negative power orprerogative appeares by these following reasons First by his oath at the Coronation mentioned in one of the Parliaments Declarations where he doth or should sweare to confirme and grant all such good lawes as his people shall choose to be observed not hath chosen for first The word concedis in that oath were then unnecessary the lawes formerly enacted being allready granted by foregoing Kings and so they need no more concession or confirmation else we must run upon this shelfe that all our laws die with the old King and receive their being a new by the new Kings consent Secondly Hereby the first and second clause in that interrogatory viz. Concedis iustas leges permittas protâ—gendas are confounded and doe but idem repetere Thirdly Quas vulgus elegerit implies onely the act of the people in a disjunctive sence from the act or consent of the King but laws allready made have more then quas vulgus elegerit they have also the royall consent too so that that phrase cannot meane them wherein the act or consent of the King is allready involved Secondly by the practise of requiring the royall ascent even unto those very acts of subsidies which are granted to himselfe and for his owne use which it is supposed he will accept of and yet Honoris gratia is his roiall ascent craved and contributed thereunto Thirdly by the Kings not sitting in Parliament to debate and consult lawes nor are they at all offered him by the Parliament to consider of but to consent to which yet are transmitted from one house to another as well to consult as consent to shewing thereby he hath no part in the consultory part of them for that it belongs onely to the people in Parliament to discerne and consult their own good but he comes onely at the time of enacting bringing his Royall Authority with him as it were to set the seale thereof to the Indenture allready prepared by the people for the King is head of the Parliament in regard of his authority not in regard of his reason or judgement as if it were to be opposed to the reason or judgement of both houses which is the reason both of King and Kingdome and therefore do they as consult so also interpret lawes without him supposing him to be a person replenished with honour and royall authority not skilled in lawes nor to receive information either of law or councell in Parliamentary affaires from any saving from that supreame court and highest councell of the King and Kingdome which admits no counterpoize being intrusted both as the wisest Councell and justest judicature Fourthly either the choise of the people in Parliament is to be the ground and rule of the Kings assent or nothing but his pleasure and so all Bills though never so necessary for publique good and preservation and after never so much paines and consultation of both houses may be reiected and so they made meere cyphers and we brought to that passe as either to have no lawes or such onely as come immediately from the King who oft is a man of pleasure and little séene in publicke affaires to be able to judge and so the Kingdomes great councell must be subordinated either to his meere will and then what difference between a free Monarchy and an absolvte saving that the one rules without Councell and the other against it or at the best but to a cabinet councell consisting commonly of men of private interests but certainly of no publicke trust Ob. But if the King must consent to such laws as the Parliament shall chuse eo nomine they may then propound unreasonable things to hâ—m as to consent to his own deposing or to the lessning his own revenew c. Ans So that the issue is whether it be fitter to trust the wisdome and integrity of our Parliament or the will and pleasure of the King in this case of so great and publicke concernment In a word the King being made the fountaine of justice and
protection to his people by the fundementall lawes or constitution of this Kingdome he is therefore to give life to such acts and things as tend thereunto which acts depend not upon his pleasure but though they are to receive their greater vigour from him yet are they not to be suspended at pleasure by him for that which at first was intended by the kingdome for an honourable way of subsistence and administration must not be wrested contrary to the nature of this Polity which is a free and mixt Monarchy and not an absolute to its destruction and confusion so that in case the King in his person should decline his duty the King in his courts are bound to performe it where his authority properly resides for if he refuse that honour which the republicke by its fundamentall constitution hath conferred upon him and will not put forth the acts of it for the end it was given him viz. for the justice and safety of his people this hinders not but that they who have as fundamentally reserved a power of being wellbeing in their own handes by the concurrence of Parliamentary authority to the royall dignity may thereby provide for their own subsistence wherein is acted the Kings juridicall authority though his personall pleasure be withheld for his legall and juridicall power is included and supposed in the very being and consequently in the acts of Courts of justice whose being he may as well suspend as their power of acting for that without this is but a cypher and therefore neither their being nor their acting so depend upon him as not to be able to act and execute common justice and protection without him in case he deny to act with them and yet both so depend upon him as that he is bound both in duty and honour by the constitution of this polity to act in them and they from him so that according to that axiome in law the King can doe no wrong because his iuridicall power and authority is allwayes to controle his personall miscarriages Se Defendendo GOd and nature hath ordained Government for the preservation of the governed This is a truth so undeniable as that none will gainsay it saving in practice which therefore being taken for granted it must needs follow that to what end Government was ordained it must bee maintained for that it is not in the power of particular persons or communities of men to depart with selfe preservation by any covenant whatsoever nor ought it to bee exacted by any superiours from their inferiours either by oath or edict because neither oathes nor statutes are obligatory further then they agree with the righteous Laws of God and nature further then so they ought neither to be made nor kept Let it be supposed then for argument sake that the Militia of the Kingdom is in the power of the King yet now as the case stands it is lawfull for the Parliament to reassume it because though they passed it into his hands for the peoples preservation yet it was never intended that by it he might compasse their destruction contrary to the Law of nature whereby every man yea every thing is bound to preserve it selfe And thusmuch in effect is confessed at unawares by the Author of the Reply to the Answer of the London Petition who affirmeth saying The King is invested with the sole power of Training Arraying and Mustering and then gives the reason because it is most consonant to reason as well as grounded on Law That he wich is bound to protect should be able to compasse that end Which reason overthrows both his position and intention 1. His position for this is no reason why the sole power of the Militia should be in the hands of the King because he is bound to protect except he were bound solely to protect that is without the counsel and advice of Parliament but it hath beene resolved that He is not sole judge of necessity and therefore not sole protector against it but together with His Parliament who consequently shares in the power of the Militia 2. It overthrows His intention which is so to put the power of the Militia into the hands of the King as to enable him to do what he wil with it whenas yet he himself cannot but affirm it is his to protect withall for hat when he ceaseth to use it to its end it ceaseth to be in his power or else let the man speake plain and say it is His to destroy as well as to protect Ob. But the Militia is passed to the King absolutely without any condition of revocation expressed or of limitation to circumscribe the use whereunto it ought to be imployed 1. Ans Laws of God and nature neither are nor need to be expressed in contracts or edicts for they are ever supposed to be supreme to humane ordinances and to chalenge obedience in the first place and other Laws so far onely as they are consonant to them though these laws be further backed with Oathes and Protestations As for instance I give a man a sword and sweare I will never take it from him yet if he actually assault me or it manifestly appeare he intends to cut my throat or take my purse with it I may lawfully possesse my selfe of it again if opportunity serve because in such agreements betwixt man man the laws of nature neither are nor can be exempted but are necessarily implyed still to be of force because no bonds can lawfully invalid them and id solum possumus quod jure possumus But it may be asked how it appeares that the King intends to imploy the Militia to the destruction of his people Why first because He hath refused to hearken to the wholsome counsel of His Parliament the representative body and the highest Court and Counsel of the Kingdom 2 Because è contrario he hearkens to the councels of notorious Papists and Malignants men engaged against the publike good and welfare of this Kingdome in a diametrall opposition so that if they perish it prospereth and if it prosper they perish 3. Because hee hath had a deepe hand in contriving and plotting the ruine and extirpation of the Parliament by secret and open violence and in them of the whole Kingdome of whom they are the Epitome and as the King is the head so they are the heart But further it may be replied that the King hath promised to maintain Parliaments and governe by Law Ans That is so far as he knowes his own heart and as he can be master of himselfe He sware the same at His Coronation and promised as much when he granted the Petition of Right but how they have beene kept God knowes and we are not ignorant It may be His Majesty may meane as he speakes but 1. Temptations may change his minde as it hath done too often and as it did his that said to the Prophet Is thy servant a dog that he should do such things and
yet did them The welfare of Kingdomes is not to be founded upon bare spontaneous promises but reall contracts 2. He himselfe sayes he himselfe is not skild in the Laws and we have found it true so that he must take information of them frō some body from his Parliament that is his people that made them he wil not and are any fitter to be Judges of the Law then the highest Court if they may be Judges that are delinquents to the Law and Malignants against it and have beene grievous oppressors of the People even against the known Laws so much cried up we are like to have just Judges and righteous Lawyers 2. Ans If the Militia be so absolutely the Kings as that all power of defence and preservation of our selves and our rights be taken from us to what purpose do we strive for liberty property and laws to confirm them these are but imaginary things if they have no hedg to fence them If the Militia be for the King let us burne the Statutes we have already and save a labour of making more No man would thinke it a good purchase to buy land and when he hath paid his money to have it in the power of the seller to take it from him by his sword Ob. It is true that Kings are tied by oath and legall contracts to governe by Laws and to maintain liberty and property to their people which puts them under an obligation of conscience to God so that they are responsible to him for the breach of fidelity and duty but not to the people who may minde them of their duty but not compell them to it Ans This Objection hath two parts First That Kings are onely responsible to God 2. That Subjects must suffer wrong but not by force maintain their right To the first I answer That if Kings be solely answerable to God then contracts are in vaine for they shall answer for all their arbitrary and unjust tyrannie over their people though there were no contracts That which makes us happier then other Nations sure is not this that the King for the breach of his duty hath more to answer at the day of judgement then other Kings have if that bee all wee have small cause to joy in our priviledges they are neither worth the blood that hath been shed for them nor the money that hath beene paid for them Secondly Government must be considered under a twofold notion divine and humane The Genus which is government it selfe is divine so that people are absolutely bound to have government but not bound to have an absolute government for the species or the modus gubernandi is humane and therefore the Apostle sayes Be subject to every ordinance of man that is to every such kinde of Government as your lot falls to be under by the constitution of the Common-wealth you live in Now Government being thus of a mixt nature the Ordinance both of God and man it is not onely subject to God but also to men to be regulated amended and maintained by the people for as it is Gods Ordinance for their good so doth he give them liberty to provide it bee not abused to their hurt so that when God shall put an opportunity into their hands they ought to improve it to the setting of government up right or the keeping of it so from apparent violations There was a time when both Government and the manner of governing belonged to God to wit amongst the Israelites for to that people he was both a God of moralls and politiks and therefore he tooke it so ill for them to usurpe upon his right as to desire to change their government from Judges to Kings but this was a peculiar right he assumed over that particular people onely To the second I answer thus Every Subject taken divisim and apart from the whole is to suffer under abused authority and to obey passively rather then to breake union or cause confusion but no Subject is bound to suffer by that which is not authority as is the will of the Magistrate If a Court of Justice should unjustly condemne a man he is patiently to undergoe it but if a Judge or the King himselfe should violently set upon him to kill him he may defend himselfe for the Ordinance of God and man both is affixed to the office and not unto the person to the authority and not unto the will so that the person acting out of office and by his will may be resisted though the ordinance may not But the representative body of the Common-wealth which is all men conjunctim they may not onely oppose the person and his will but even the office and authority it selfe when abused and are bound to it both in conscience to God when he gives them opportunity and in discharging of their trust to them that imployed them For first God calls to have the wicked removed from the Throne and whom doth he call upon to doe it but upon the people in case the King will not or their trustees for as he hath originally founded all authority in the people so he expects a discharge of it from them for his glory the publike weale which are the ends of Government from which God and nature hath ordained it Secondly In discharge of their trust for the whole for order sake making them their representative actors and putting that universall and popular authority that is in the body of the people and which for the publike good and preservation is above every man and all Laws into their hands they may expect and chalenge them by vertue of their stewardship to provide for their safety and well being against whomsoever shall oppose it no one being above all and therefore ought not that universall power which by way of trust is conveyed over to the Parliament be betrayed into the hands of any by admitting or allowing any authority to be superiour by tollerating abuses and usurpations as if they had not power to regulate them FINIS
Touching the Fundamentall Lawes Or Politique Constitution of this Kingdome The KINGS Negative Voice and The Power of PARLIAMENTS To which is annexed The priviledge and power of the Parliament touching The MILITIA LONDON Printed for Thomas Vnderhill and are to be sold at the signe of the Bible in Woodstreet M.DC.XLIII TOUCHING FVNDAMENTALL LAVVS AND The KINGS Negative Voice FVndamentall Laws are not or at least néed not be any written agréement like Meare-stones betwéen King and People the King himselfe being a part not party in those Laws and the Common-wealth not being like a Corporation treated by Charter but treating it selfe But the fundamentall Law or Laws is a setling of the laws of nature and common equity by common consent in such a forme of Polity and Government as that they may be administred amongst us with honour and safety For the first of which therefore we are governed by a King and for the second by a Parliament to oversée and take order that that honourable trust that is put into the hands of the King for the dignity of the Kingdome be rightly executed and not abused to the alteration of the Politique Constitution taken up and approved or to the destruction of that for whose preservation it was ordered and intended A principall part of which honour is that royall assent he is to give for the enacting of such good Laws as the people shal choose for they are first to consult their own safety and welfare and then he who is to be intrusted with it is to give an honourable confirmation to it and so to put an Impresse of Majesty and Royall authority upon it Fundamentall Laws then are not things of capitulation between King and people as if they were Forrainers and Strangers one to another nor ought they or any other Laws so to be for then the King should governe for himselfe not for his people but they are things of constitution treating such a relation and giving such an existence and being by an externall polity to King and Subjects as Head and Members which constitution in the very being of it is a Law held forth with more evidence and written in the very heart of the Republique sarre firmlyer then can be by pen and paper and in which sense we owe our Allegiance to the King as Head not onely by power but inâ—uence and so part of the constitution not as a party capitulating for a prerogative against or contrary to it which whosoever seeks to set up or side with doe break their Allegiance and rebell against the State going about to deprive the King of his juridicall and lawfull authority conferred upon him by the constitution of this State under the pretence of investing him with an illegall and unconstitutive power whereupon may follow this grand inconvenience The withdrawment of His peoples Allegiance which as a Body connexed with the Head by the constitution of this Kingdome is owing to him his person in relation to the body as the enlivening and quickning head thereof being sacred and taken notice of by the laws in that capacity and under that notion is made inviolate And if it be conceived that Fundamentall Laws must néeds be only extant in writing this is the next way to bring all to confusion for then by the same rule the King bids the Parliament produce those Laws that fundamentally give them their being priviledges power Which by the way is not like the power of inferiour Courts that are springs of the Parliament dealing betweene party and party but is answerable to their trust this Court being it selfe Fundamentall and Paramount comprehending Law and Equity and being intrusted by the whole for the whole is not therefore to be circumscribed by any other Laws which have their being from it not it from them but onely by that Law which at first gave it its being to wit Salus populi By the same rule I say the Parliament may also intreat the King to produce those Laws that Fundamentally give him his being power and honour Both which must therefore be determined not by laws for they themselves are laws yea the most supreame and fundamentall law giving law to laws themselves but by the received constitution or policy which they themselves are and the end of their constitution is the law or rule of their power to wit An honourable and safe Regiment of the Common-wealth which two whosoever goeth about to divide the one of them from the other breaks the fundamentall constitutive law or laws polity of this kingdome that ordinance of man which we are to submit unto nor can or ought any statute or written law whatsoever which is of later Edition and inferiour Condition being but an off-spring of this root be interpreted or brought in Plea against this primary and radicall constitution without guilt of the highest Treason and destructive enmity to the Publique weale and polity because by the very â—onstitution of this Kingdome all laws or interpretation of laws tending to confusion or dissolution are ipso facto void In this case we may allude and say That the Covenant which was 400. yéers before the Law an after-Act cannot disanull it Ob. It may be objected that this discourse séems to make our Government to be founded in Equity not in Law or upon that common rule of Salus populi which is alike common to all Nations as well as any and so what difference Ans The Fundamentall laws of England are nothing but the Common laws of Equity and Nature reduced into a particular way of policy which policy is the ground of our title to them and interest in them For though it is true that Nature hath invested all Nations in an equall right to the laws of Nature and Equity by a common bounty without respect of persons yet the severall models of externall Government and Policie renders them more or lesse capable of this their common right For though they have an equall right in Nature to all the Laws of Nature and Equity yet having fundamentally subjected themselves by their politique Constitutions unto a Regal servitude by Barbarisme or the like they have thereby much disabled and disvested themselves of that common benefit But on the contrary where the outward constitution or polity of a Republick is purposely framed for the confirming and better conserving this common right of Nature and Equity as in ours there is not onely a common right but also a particular and lawfull power joyned with this right for its maintenance and supportion For whereas other people are without all supreame power either of making laws or raising monies both these bodies of supremacie being in the arbitrary hands onely of the Soveraigne Magistrate amongst many Nations these with us are in the hands of the supreame Government not Governour or Court of Iudicature to wit the King and Parliament here the people like Frée-men give money to the King he doth not take it and offers Laws to be enacted