power as in the case of Edward the second from whom Sir William Russell Speaker of the Parliament in the name of all men or people of Graston Chron. Hoc factum fuit legitimâ— secundum Jus Primitivum sive intensivum Populi Anne tamenlegitimo in foro conscientiae rectae Rationis modique questio est England constrained or took his Royall Office or Authority or to speak more truly deprived him of it without any former president exercising the intensive power of the people for Trussell said not to EDWARD the second in the Name of the Lords and Commons assembled in Parliament or in the Name of the Commons assembled in Parliament but in the Name of all men or people of England c. thereby expressing or manifesting the Peoples Primitive or intensive Power more then the Parliaments secundary or extensive Authority 7. And as the English Nation or People cause their Kings formally to swear or take their Oaths to conserve their Lawes and Liberties so they cause the Parliament I meane the Body collective or representative of the People viz. the Knights Citizens and Burgesses to take their Oaths if not formally yet at the least virtually to conserve their generall Liberty and Propriety to do all good they may for the places that intrust them all which they faithfully promise at their Elections So that the English Nation or People never gave or voluntarily assented that their Kings or Parliaments or Both should have an absolute Domineering or Arbitrary power over them but onely a Discretive or Legall Authority intended ever for their good in generall their ever reserved and as it were Essentiall Propriety 8. Wherefore I cannot but marvell at such whether Kingly Royalists or Parliamentary Realists in this case it makes no matter as by a kind of Idolizing King or Parliament or King and Parliament would suppose or perswade the People that their Lives Liberties and Proprieties are disposable by King and Parliament ad Placitum one Iohn Cook of Grayes-Inne Barrister by me already cited hath in his Vindication of the Professours and Profession of the Law inserted that I have in my former Book intituled The Sphear of Government introduced a dangerous Opinion by putting or stating a supposition or rather a Praesuppositive case that if King and Parliament or King or Parliament should make an Act that they would and might dispose of all Subjects Estates in England he should have added ad Placitum for those are my words that in such case the Counties Cities and Townes corporate might if not remedied declare and protest against such an Act if violated then they might defend themselves by Armes And to convince this my Assertion in the next Page he sayes if the supream Court be not supream to all intents it is not supream to any intent because there is an higher above it this is no good consequence for a Power and consequently a Court of Power may bee supream to some things yet not to all the King of Poland for life is supreame to appoint what place he thinks fit within the Precincts of the Dominions of Poland for the convening or assembling the Diets or Courts of the Peers Spirituall and Temporall of that Kingdome and the King of Poland is also â—upreame to censure or punish any of his owne Tenants and Vassals or Slaves yet is he not supreame to censure or punish any of the chiefe Nobility but by consent of his Assembly or Court of Peers nor can hee meddle with any of their Tenants Vassals or Slaves or determine absolutely of Peace or Warre c. In the Common-Wealth of Geneva which he calls a pure Democracy the People in generall are supreame â—o nominate or elect Two Hundred which are the Grand-Councell and those Two Hundred are supreame to nominate or elect the Twenty five and yet not supreame to elect the foure Syndiques or Annuall Governours or rather Rulers c. So that it is no good consequence as afore-said to affirme that if the Supreame Court be not supreame to all intents it is not supreame to any intent because there is another above it For in Geneva it is evident that the Two Hundred or Graâ—d-Councell is the supreame Gourt and yet not supream to all Intents the People indeed or Common-Wealth in generall which are the supreame Power though not Court are supreame to all Intents but of that hereafter 9. But the Gentleman sayes that there are in the Kingdome so many thousand Acres of Land either the Parliament may settlâ— and determine the Right of all their Acres hee meant surely those Acres or not of any one of them for there is no medium c. But what is this to the purpose of the Parliament having a power to dispose of all Subjects Estates ad placitum who knowes not but that the Parliament can determine the Right of all Acres in England in foro judicii as v. g. the Parliament can determine whether White Acre belong of Right to Oakes or Stiles let the Title of either of them be never so difficult or obscure and the Parliament can determine whether or no Oakes or Stiles have forfeited their Propriety of or to White Acre for Delinquency c. Moreover the Parliament can which no other Court can doe applicare in necessitatem Regni apply to or for the necessity of the Kingdome so much of the profits of White Acre as to them shall seeme convenient provided that the cause or causes thereof be made manifest that Oakes Stiles and all men may if they will take notice thereof and provided also that an Accompt be given how and which way the profits of White Acre have beene for such cause or causes applyed and disposed of for no Free-born English-man much lesse the Nation in generall ought to be deprived of any his Right or propriety without good cause Notwithstanding the Parliament of England cannot disponere ad Placitum dispose at their will and pleasure barely of White Acre no nor of one quo modo una particula terrae ad placitum disponi potest eo modo omnis Terra in Regno Angliae disponenda sorâ—t Acre of waste in England v. g. that whereas White Acre belongs of Right to Oakes Stiles shall notwithstanding have it because it is their will and pleasure this they cannot doe for at what time they should do it albeit I suppose it almost impossible that they should do it as I have formerly instanced they fayle or fall from the Protection of the People and usurpe to themselves an absolute Arbitrary and irregular Power destructive to the generall good of the People and consequently cease to be a Parliament and become Tyrants and Oppressors 10. I cannot therefore but somewhat admire that a Lawyer and one that seemeth unto me to have understood Logic should be having been as it seemes to me sometimes seasoned with Intellectuals so unsound in his Intellectuals as not to distinguish between Disposing at Pleasure and
Determining of Right or setling according to Right being things of a different species and not magis or minus in the same species But it is not amisse to take a little notice how the Gentleman opposes himself in his Book Page 4. he sayes it is resolved in the Earl of Leicesters Case that an Act of Parliament against the Law of God and Nature is void but this must be cautiously understood sayes he that I speak not of secundary or lesse principalls of Nature c. Pray let him tell me whether to dispose of Oakes or Stiles white Acre ad Placitum be not directly against the Law of God and Nature the Decalogue sayes Thou shalt not steale Thou shalt not desire thy Neighbours house c. and Nature dictates doe as thou wouldst be done unto Now he or they that dispose at their owne pleasure of theit Neighbours Acre or Acres do steale for that he or they deprive their Neighbour or Neighbours of their Right and Propriety they covet also for that they desire and acquire to themselves a power of disposing at pleasure they oppose also directly the Law of Nature for they would not have any one to dispose of their Propriety ad Placitum or at their own wills and therefore ought not to doe it to another so that if the King and Parliament should make an Act or King or Parliament make an Ordinance that they might dispose of all Subjects Estates ad Placitum c. they oppose the Law Plowdens Comment of God and Nature and even by his own citation and assertion it is void and I am sure it is also directly opposite to the Rule frame and constitution of a free Nation such as are the English being no Turkish or Muscovian slaves where the Rulers and Governours are but intrusted as I in my former Treatise have instanced for the generall good of the Nation And the Gentleman albeit he hath cavelled at me in the latter end of his Book yet hath he confessed and acknowledged as much in his Epistle Dedicatory in two severall places the first is by me already cited notwithstanding I will mention the words again which are all Power and Authority is given for Preservation and Edification nothing for destruction Dispositio mere ad Placitum est destructio desolatio and desolation the others in the same page are for by the fundamental constitutions of this Kingdom and the very frame and series of Government the Power is intrusted into their hands to superintend and supervise all other Courts of Iustice Now surely if Power be intrusted to tâ—e Parliament as truly it is then can they not go beyond their Trust to dispose of the Free People of England their Estates ad Placitum but onely to determine of them ad Rectum or Ius or to apply them ad necessitatem Regni to or for the necessity of the Kingdome of which necessity they are the ☞ Judges The Gentleman sayes that many a man marryes a widow that would be gladly rid of her children for my part I know not whether or no the Gentleman be marryed or whether he have marryed a Maid or Widdow but I am sure if he rightly consider it he may be glad to be rid of his sick-brain begotten Childe his Asseveration that the Parliament is unlimited and consequently may dispose of all the Subjects or Peoples Estates ad Placitum for I verily believe that no man found in his Intellectuals will harbour it or give it entertainment nor can himself sustain it 11. I grant him that the Parliament is the highest Deus est causa efficiens finalis mundi quia operatus est Omnia per se et propter se Populus etiam est causa efficiens finalis Parliamenti quia per se propter se illos eligunt c. Court extensive viz. to conserve Rule Order c. but the People in generall viz. the Counties Cities and Towns corporate are the highest or greatest Power Intensive in that they are the efficient and finall cause under God of the Parliament Now the efficient and finall causes are the most noble of causes nor are they or can they be subject or subordinate to their owne effects so farre forth as they are causes of such effects so that the Parliament can never deprive the Counties Cities and Towns Corporate by any Act or Ordinance whatsoever of their innate and inseparable Right and Power of Electing or creating Knights Citizens and Burgesses de futurâ— or for time to come whereby a Parliament might be instituted or assembled by any other way then by way of free Election no more can the Parliament deprive the free People or Nation of England of their Generall Liberty and Propriety for in these things the Sphear of the Parliaments Activity is circumscribed by the Nations large Bulke of Primitive or intensive Power Wherefore the Gentleman mistakes when he sayes page 89. It is impossible that the supreame Court in any Kinâ—dâ—me should be limited c. In these Precedents amongst free Nations all supreame Courts are dâ— facto limited as in Aragon Geneâ—a c. And for my part I cannot find that the Parliament In Aragon Valentia and Câ—â—â—lonia the three Estates or Cortes delos Regnos as they call them cannot alter so much as one of their Municipâ—lâ— Priviledges Practiceth an unlimited or absolute Power for amongst other things they have instituted Committees and Sub-Committees of Accompts not onely to vindicate themselves from the scandall imputed by some viz. that the Parliament should exact more from the people then the necessity of the Kingdome reqâ—â—â—ed c. but also to give the people a generall satisfaction how and which way their Estates are applyed and imployed for the Necessity of the Kingdome 12. And now I think good further to satisfie the Gentleman and such as adhere or incline to his opinion aforesaid concerning the Primitive or Intensive power of a free People I have already aid that a free People are ever free to dispose and determine themselves in Bonum commune prout omnâ—bus visum erit to a generall common good as it shall seeme good to themselves and that they never part or parted with this power for that at what time soever they should doe it they cease to be 〈◊〉 liber or liberâ— subdit a free People c. And to make this Assertion more conspicuous and plaine I instance this simile Joynt Free-holders or Free-holders joyntly let a Lease for one thousand or two thousand yeares if the World endure so long with reservation notwithstanding of a continuall acknowledgment to themselves or otherwise the said Lease shall determine and cease to be and it shall be lawful for the said Free-holders their Heires or Successours to re-enter into the said Free-hold or Free-holds and to dispose and settle them at their pleasure even so a free Nation or People let a Lease of their power for one thousand two
thousand ten thousand yeares if the World so long endure no matter what time to their Rulers whom they institute and intrust in which they give and grant power to them of Determining conserving and applying their Liberties Rights and Proprieties justly So to the particular good of every man ☞ as may not repugne the generall good of all so to the generall good of all men as may not annihilate the particular good of one unjustly or indirectly with reservation notwithstanding of a continuall acknowledgment to or for themselves that they viz. the Nation or People are the efficient cause of their power by electing and creating them and that they are not to domineer over or dispose of theâ—r Liberties and Proprieties ad placitum but onely to determine of them ad Rectum and apply them to the generall good of the Kingdome according to the necessity of the Kingdome Nation or People as aforesaid if otherwise their Power determines and ceases to be and it may be lawfull for the Nation or People to re-enter viz. to make use Eo modo quo quid constituitur eodem modo dissolvi potest of their first primitive power and to dispose and settle themselves at their pleasure or as they shall think good And even as the Free-holders cease not to be Free-holders notwithstanding their long Lease for that there is a Reservation of a continuall acknowledgment due unto them and a power of Re-entry in case of Breach of Covenants and the like even so a free Nation or people cease not at any time to be free notwithstanding their long Lease of Trust for that there is a Reservation of a continuall acknowledgment belonging unto them viz. that they are the efficient cause de saculo in saeculum from Age to Age and they have likewise a power of using their power pâ—â—mâ—tive and intensive or power alwayes intended and reserved in cases aforesaid Notwithstanding as the Immediate sub Deo Populus liber est causa efficiens perpetua potestatiâ— Regulatae Free-holders cannot re-enter but onely in case of Breach of Covenant aforesaid for if otherwise they do it they are meere Usurpâ—rs and Oppressours so the free Nations or people cannot use their primitive or intensive power but onely when the fundamental frame of their Efficient Power and their Liberties and Proprieties are destroyed or violated ad placitum as aforesaid if otherwise they doe it they are meere Rebels and Anarchists for they have intrusted all their other Judiciall Power concerning Determination Conservation and Application to their Rulers 13. The Gentleman whom I have formerly cited hath said in his Book that he never heard or read of any thing more prejudiciall to the Parliaments Authority then my Assertion in my last Book and in this viz. that the Parliament cannot dispose of the Free-peopâ—e or Subjects Estates here in England ad placitum but I must tell him that I never read of a more prejudicious or pernicious to the Parliament then to say that they may doe it for what say many of the vulgar if the Parliamenâ— may dispose of our Estates at their pleasure how shall wee know tâ—at they will not if any man tell them that it is very unlikely that so many will never consent to doe such a thing for that they might by that mean enslave their own Posterities what say they if they can dispose of all the Subjectâ— Estates ad placitum for ought we know they might exempt themselves their Heires and Successours and likewise for ought we know they might make a Law that they will no more be Elected or cteated by the Counties Cities and Townes Corporate but by a perpetuall Denomination by or from themselves and what can be of more dangerous consequence then that such an Opinion or Opinions as these should once take root in the mindes of the Common People and what can sooner cause them to take root then that they finde and reade a printed Booke allowed of to that purpose But if one tell the vulgar that the Parliament cannot dispose of the Subjects Estates ad placitum or meerly at their pleasure but that they can onely apply in an equall way the Estates of the People to or for the necessity of the Kingdome of which Necessity they are the Judges and likewise that the PARLIAMENT cannot make a Law or Ordinance that the Knights Citizens and Burgesses shall or may be appointed or denominated by themselves thereby to alter the frame and constitution of this NATION but that they must perpetually from Age to Age be Elected or created by the Counties Cities and Towns Corporate then they begin to harbour a better Opinion and are more inclinable to undergoe their Ordinances And I believe that the intent why the HONOURABLE HOUSE OF COMMONS published lately a Declaration the Seventeenth of April 1646. Ordered to be read in Churches was to undeceiâ—e the People that they never had any thought to dispose of their Estates ad placitum and so forth for they expresly say and Declare To mainâ—ain the Aâ—cient and Fundamentall Government of the Kingdome to preserve the Rights and Liberties of the Subject c. Wherefore I would not have the Gentleman or any other to run be 〈◊〉 the marke I like not Quid â—imis it hath been 〈…〉 of many Enormities in Church and Common 〈◊〉 my part I wish â—â— I have ever wished and formerly expressed my selfe that the King might enjoy his just Prerogative as some call it or Right of Reigning and I wish and desire as much as any other that the Parliament might sustain their Priviledges and Judicatory Power But I could never suffer nor would I if it were in my power any way to prevent it endure that my Nation or Fellow Subjects should be enslaved â—y any Exorbitant Power Potentate or Potencies Forâ—ain or Domestic And I doubt not but that the Ruler of Heaven and Earth will by his Divine Providence establiâ—h such Rulers and Rules in this KINGDOME as may be a meanes to conserve this Nation from slavery and thraldome AMEN FVrthermore having in my former Treatise and in this affirmed that the Pâ—rliament is the â—upreame Power Judicatory to censure and determine all matters doubtful and disputable for such hath been the constitution of this Kingdom for many Ages I conceive therefore that the Parliament may and have onely Power to settle what Form of Religion they shall think good and albeit they should erre therein as Parliaments may erre and some de facto have erred yet theit Ordinances oblige Iure â—uâ—â—no that is men ought â—ither to obey such Ordinances or if otherwise their Conâ—ciences dictate such Ordinances to be erroneous they ought to undergoe such penalties Quicquid est contra conscientiam edificat ad peccatum as should be by them inflicted if they should impose or ordain any such And as it is in the power of the Parliament to inflict penalties so is it in their power to