tenour of Law and if it could there were more reason why the people might justifie force to regaine due libertie then the Prince might to subvert the same And t is a shamefull stupidity in any man to thinke that our Ancestors did not fight more nobly for their free customes and Lawes of which the conqueror and his successors had in part disinherited them by violence and perjury then they which put them to such conflicts for it seemes unnatural to me that any nation should be bound to contribute its owne inherent puissance meerely to abet Tiranny and support slavery and to make that which is more excellent a prey to that which is of lesse worth And questionlesse a native Prince if meere Foree be right may disfranchise his Subjects as well as a stranger if he can frame a sufficient party and yet we see this was the foolish sinne of Rehoboam who having deserted and reiected out of an intollerable insolence the strength of ten tribes ridiculously sought to reduce them againe with the strength of two I come now from the cause which conveyes Royalty and that for which it is conveyed to the nature of the conveyance The word Trust is frequent in the Kings Papers and therefore I conceive the King does admit that his interest in the Crowne is not absolute or by a meere donation of the people but in part conditionate and fiduciary And indeed all good Princes without any expresse contract betwixt them and their Subjects have acknowledged that there did lie a great and high trust upon them nay Heathen Princes that have beene absolute have acknowledged themselves servants to the publike and borne for that service and professed that they would manage the publike weale as being well satisfied populi Rem esse non suam And we cannot imagine in the fury of warre when lawes have the least vigour that any Generalissimo can be so uncircumscribed in power but that if he should turne his Canons upon his owne Souldiers they vvere ipso facto absolved of all obedience and of all oathes and ties of allegiance vvhatsoever for that time and bound by higher dutie to seeke their owne preservation by resistance and defence vvherefore if there bee such tacite trusts and reservations in all publike commands though of the most absolute nature that can be supposed vve cannot but admit that in all well formed monarchies vvhere kingly Prerogative has any limits set this must needs be one necessary condition that the subject shall live both safe and free The Charter of nature intitles all Subjects of all Countries vvhatsoever to safetie by its supreame Law But freedome indeed has divers degrees of latitude and all Countries therein doe not participate alike but positive Lawes must every vvhere assigne those degrees The great Charter of England is not strait in Priviledges to us neither is the Kings oath of small strength to that Charter for that though it bee more precise in the care of Canonicall Priviledges and of Bishops and Clergymen as having beene penned by Popish Bishops then of the Commonalty yet it confirmes all Lawes and rightfull customes amongst vvhich vve most highly esteeme Parliamentary Priviledges and as for the word Eligerit whether it be future or past it skills not much for if by this oaths Law Justice and descretion be executed amongst us in all judgements as vvell in as out of Parliament and if peace and godly agreement be 〈◊〉 〈◊〉 amongst us all and if the King defend and uphold all our lawes and customes vve need not feare but the King is bound to consent to new Lawes if they be necessary as vvell as defend old for both being of the same necessity the publique trust must needs equally extend to both and vve conceive it one Parliamentary right and custome that nothing necessary ought to be denyed And the vvord Eligerit if it be in the perfect tense yet shewes that the peoples election had beene the ground of ancient Lawes and customes and vvhy the peoples election in Parliament should not be now of as great moment as ever I cannot discover That vvhich results then from hence is if our Kings receive all royalty from the people and for the behoofe of the people and that by a speciall trust of safety and libertie expressely by the people limited and by their owne grants and oathes ratified then our Kings cannot be sayd to have so unconditionate and high a proprietie in all our lives liberties and possessions or in any thing else to the Crowne appertayning as vve have in their dignity or in our selves and indeed if they had they vvere not borne for the people but merely for themselves neither were it lawfull or naturall for them to expose their lives and fortunes for their Country as they have beene hitherto bound to doe according to that of our Saviour Bonus Pastor ponit vitam pro ovibus But now of Parliaments Parliaments have the same efficient cause as monarchies if not higher for in the truth the vvhole Kingdome is not so properly the Author as the essence it selfe of Parliaments and by the former rule t is magic tale because vve see ipsum quid quod efficit tale And it is I thinke beyond all controversie that God and the Law operate as the same causes both in Kings and Parliaments for God favours both and the Law establishes both and the act of men still concurres in the sustentation of both And not to stay longer upon this Parliaments have also the same finall cause as Monarchies if not greater for indeed publike safety and liberty could not be so effectually provided for by Monarchs till Parliaments were constituted for the supplying of all defects in that Government Two things especially are aymed at in Parliaments not to be attayned to by other meanes First that the interest of the people might be satisfied secondly that Kings might be the better counsailed In the summons of Edw. the first Claus. 7. 111. 3. Dors. we see the first end of Parliaments expressed for he inserts in the writ that whatsoever affayre is of publike concernment ought to receive publike approbation quod omnes tangit ab omnibus approbari debet or tructari And in the same writ he saith this is lâ—x ne tissima provida circumspectione stabilita there is not a word here but it is observeable publique approbation consent or treatie is necessary in all publike expedients and this is not a meere usage in England but a Law and this Law is not subject to any doubt or dispute there is nothing more knowne neither is this knowne Law extorted from Kings by the violence and injustice of the people it is duely and formally establisht and that upon a great deale of reason not without the providence and circumspection of all the states Were there no further Antiquity but the raigne of Edward the first to recommend this to us certainly so there ought no reverence to be withheld from it
OBSERVATIONS upon some of his Majesties late Answers and Expresses IN this contestation betweene Regall and Paliamentary power for methods sake it is requisite to consider fâ—â—se of Regall then of Parliamentary Power and in both to consider the efficient and finall causes and the meanes by which they are supported The King attributeth the originall of his royalty to God and the Law making no mention of the graunt consent or trust of man therein but the truth is God is no more the author of Regall then of Aristocraticall power nor of supreame then of subordinate command nay that dominion which is usurped and not just yet whilst it remaines dominion and till it be legally againe devested referres to God as to its Author and donor as much as that which is hereditary And that Law which the King mentioneth is not to be understood to be any speciall ordinance sent from heaven by the ministery of Angels or Prophets as amongst the Jewes it sometimes was It can be nothing else amongst Christians but the Pactions and agreements of such and such politique corporations Power is originally inherent in the people and it is nothing else but that might and vigour which such or such a societie of men containes in it selfe and when by such or such a Law of common consent and agreement it is derived into such and such hands God confirmes that Law and so man is the free and voluntary Author the Law is the Instrument and God is the establisher of both And we see not that Prince which is the most potent over his subjects but that Prince which is most Potent in his subjects is indeed most truely potent for a King of one small City if he be intrusted with a large Prerogative may bee sayd to be more Potent over his subjects then a King of many great Regions whose prerogative is more limited and yet in true realitie of power that King is most great and glorious which hath the most and strongest subjects and not he which tramples upon the most contemptible vassells This is therefore a great and fond errour in some Princes to strive more to be great over their people then in their people and to ecclipse themselves by impoverishing rather then to magnifie themselves by infranchising their Subjects This we see in France at this day for were the Peasants there more free they would be more rich and magnanimous and were they so their King were more puissant but now by affecting an adulterate power over his Subjects the King there looses a true power in his Subjects imbracing a cloud instead of Juno but thus we see that power is but secondary and derivative in Princes the fountaine and efficient cause is the people and from hence the inference is just the King though he be singulis Major yet he is universis minor for if the people be the true efficient cause of power it is a rule in nature quicquid efficit tale est magis tale And hence it appeares that at the founding of authorities when the consent of societies convayes rule into such and such hands it may ordaine what conditions and prefix what bounds it pleases and that no dissolution ought to be thereof but by the same power by which it had its constitution As for the finall cause of Regall Authoritie I doe not finde any thing in the Kings papers denying that the same people is the finall which is the efficient cause of it and indeed it were strange if the people in subjecting it selfe to command should ayme at any thing but its owne good in the first and last place T is true according to Machavills politicks Princes ought to ayme at greatnes not in but over their Subjects and for the atchieving of the same they ought to propose to themselves no greater good then the spoyling and breaking the spirits of their Subjects nor no greater mischiefe then common freedome neither ought they to promote and cherish any servants but such as are most fit for rapine and oppression nor depresse and prosecute any as enemies but such as are gracious with the populacy for noble and gallant Acts To be deliciae humani generis is growne fordid with Princes to be publike torments and carnificines and to plot against those Subjects whom by nature they ought to protect is held Caesar-like and therefore bloody Borgias by meere crueltie tâ—eachery hath gotten roome in the Calender of witty and of spirited Heroes And our English Court of late yeares hath drunke too much of this State poyson for eyther wee have seene favorites raysed to poll the people and razed againe to pacifie the people or else which is worse for King and people too we have seene engines of mischiefe preserved against the people and upheld against Law meerely that mischeefe might not want incouragement But our King here doth acknowledge it the great businesse of his coronation oath to protect us And I hope under this word protect he intends not onely to shield us from all kind of evill but to promote us also to all kind of Politicall happinesse according to his utmost devoyre and I hope hee holds himselfe bound thereunto not onely by his oath but also by his very Office and by the end of his soveraigne dignitie And though all single persons ought to looke upon the late Bills passed by the King as matters of Grace with all thankefulnesse and humility yet the King himselfe looking upon the whole State ought to acknowledge that hee cannot merit of it and that whatsoever he hath granted if it be for the prosperity of his people but much more for their ease it hath proceeded but from his meere dutie If Ship money if the Starre Chamber if the High Commission if the Votes of Bishops and Popish Lords in the upper House be inconsistent with the welfare of the Kingdome not onely honour but justice it selfe challenges that they be abolisht the King ought not to account that a profit or strength to him which is a losse and wasting to the people nor ought he to thinke that perisht to him which is gained to the people The word grace sounds better in the peoples mouthes then in his his dignitie was erected to preserve the Commonaltie the Commonaltie was not created for his service and that which is the end is farre more honorable and valuable in nature and policy then that which is the meanes This directs us then to the transcendent {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} of all Politiques to the Paramount Law that shall give Law to all humane Lawes whatsoever and that is Salus Populi The Law of Prerogative it selfe it is subservient to this Law and were it not conducing thereunto it were not necessary nor expedient Neither can the right of conquest be pleaded to acquit Princes of that which is due to the people as the Authors or ends of all power for meere force cannot alter the course of nature or frustrate the
have too much wrong done them for what is more plain then this That the Venetians live more happily under their conditionate Duke then the Turks do under their most absolute Emperours Neverthelesse if we consider the noble Trophees of Rome which it gained under Consuls and conditionaâ—e Commanders we may suppose that no defect at all could be in that popular and mixt government And our neighbours in the Netherlands are a good instance for they being to cope with the most Puissant and free Prince of Christendom being but the torn relique of a small Nation yet for their defence would not put themselves under a Dictatorian power but they prepared themselves for that so terrible encounter under the Conduct of a Generall much limitted Neither have those straitned Commissiâ—ns yeelded any thing but victories to the States and solid honour to the Princes of Orange and what more the mightiest Monarchs of our age have atchieved or enjoy'd besides the filling of a phantasticall humour with imaginary grandour I speak not this in favour of any alteration in England I am as zealously addicted to Monarchy as any man can without dotage but I know there are severall degrees of Prerogatives Royall some whereof have greater power of protection and lesse of oppression and such I desire to be most studious of In some things I know t is dangerous to circumscribe Princes but in others there may be great danger in leaving them to their pleasure and scarce any hope at all of benefit and amongst other things the choice of publike Officers if the State have at least some share therein with the King what considerable inconvenience can happen thereby to the State or King is not in me to foresee but if it have no share experience sufficient teacheth us what great disasters may happen And so for the disusing and dissolving of Parliaments if the Parliament divide some part of that power with the King I see great good but no harm at all that can ensue either to weaken the Crown or disturb the subject thereby But it will be said in the next place If this disables not the King from protecting the Subject yet it diminishes his own Right and leaves him but the shadow of Royalty This is grounded upon a great mistake for some men think it a glorious thing to be able to kill as well as to save and to have a kinde of a Creators power over Subjects but the truth is such power procures much danger to ill Princes and little good to any for it begets not so much love as fear in the subiect though it be not abused and the fear of the subject does not give so perfect a Dominion as love Were Hannibal Scipio c. the lesse honoured or beloved because they were not independent surely no they were the lesse feared and for the same cause the more honoured and beloved Or were Alexander Pyrrbus c. the more honoured or beloved because they were independant I believe the contrary and that they had lived more gloriously and died lesse violently if a more moderate power had rendred them lesse insolent in their own thoughts and lesse feared in other mens Was Caesar the private man lesse successefull in his Warres or lesse dear in all his souldiers eyes or lesse powerfull in his Countrey-mens affections then Caesar the perpetuall Dictator No if the Imperiall Throne of the World added any thing to Caesar 't was not excellence nor true glory 't was but the externall complements of pomp and ostentation and that might perhaps blow up his minde with vanity and fill the people with 〈◊〉 it could not make Caesar a nobler gallanter greater Caesar 〈◊〉 he was I expect no lesse then to be laught at at â—ourt and to be hâ—ld the author of a strange paradox by those men which stick not to say That our King is now no more King of Scotland then he is King of France because his meer pleasure there is not so predominant in all cases of good and evill whatsoever but I regard not those fond things which cannot see in humane nature what is depraved in it and what not and what proceeds from vain and what from true glory and wherein the naturall perfection of power and honour differs from the painted rayes of spurious Majesty and Magnificence To me the Policy of Scotland seems more exquisite in poynt of prerogative then any other in Europe except ours And if the splendor and puissance of a Prince consist in commanding religious wise magnanimous warlike subjects I think the King of Scotland is more to be admired then the King of France and that he is so to the meer ingenuity of Government I ascribe it But some will allow That to follow the pattern of Antoninus freely and voluntarily as he did is not dishonourable in a Prince but to be under any Obligation or Law to do so is ignoble And this is as much as to say That Law though good yet quateâ—â—s Law is burthenous to mans nature and though it be so but to corrupted nature in asmuch as it retains from nothing but that which nature in its purity would it self restrain from yet corrupted nature it self is to be soothed and observed I have done with this point 't was spoken in honour of Hen. 7. That he governed his subjects by his Laws his Laws by his Lawyers and it might have been added his subjects Laws and Lawyers by advice of Parliament by the regulation of that Court which gave life and birth to all Laws In this Policy is comprized the whole act of Soveraignty for where the people are subject to the Law of the Land and not to the will of the Prince and where the Law is left to the interpretation of sworn upright Judges and not violated by power and where Parliaments superintend all and in all extraordinary cases especially betwixt the King and Kingdom do the faithfull Offices of Umpirage all things remain in such a harmony as I shall recommend to all good Princes The Parliament conceives that the King cannot apprehend any just fear from Sir John Hotham or interpret the meer shutting of Hull gates and the sending away of Arms and Ammunition in obedience to both Houses to be any preparation for Warre and Invasion against him at York and therefore they resolve to raise Forces against those Forces which the King raises to secure himself from Sir John Hotham The King hereupon charges the Parliament of levying Warre against Him under pretence of His levying Warre against them This is matter of fact and the World must judge whether the Kings preparations in the North be onely sutable to the danger of Sir John Hotham or no and whether the Parliament be in danger of the Kings strength there or no Or whether is more probable at this time that the King is incensed against the Parliament or the Parliament against the King or that the King is more intentive to assayl the Parliament or the
Parliament the King 'T is true the King abjures any intention of making Warre against his Parliament but what he intends against the malignant party in or out of Parliament is not exprest and the King abjures invasive Warre against them but whether he think not himself first invaded already is not exprest and the specifying of a faction in Parliament of some few malignants secures none for none can plead force and none ought to plead folly in Treasons of this nature and the major part of the Houses can neither plead absence or dissent and those which can must not be their own purgators Besides the act of Sir John Hotham is disputable the King adjudges it Treason the Parliament adjudge it no Treason and the King has not declared whether he will refer this to the tryall of the sword only or to some other tryall and if so To what kinde of tryall the judgement of a Parliament shall be submitted If we call another Parliament to judge of this so we may appeal in infinitum and why another should be cleerer then this we cannot imagine If we could constitute a higher Court for this appeal so we might do in infinitum also but we know no higher can be imagined and if we appeal to a lower that were to invert the course of nature and to confound all Parliaments for ever if we call all the Kingdom to judge of this we do the same thing as to proclaim Civill Warre and to blow the Trumpet of generall confusion And if we allow the King to be the sole supream competent Judge in this case we resigne all into his hands we give lifes liberties Laws Parliaments all to be held at meer discretion For there is in the interpretation of Law upon the last appeal the same supremacy of power requisite as is in making it And therefore grant the King supream interpreter and t is all one as if we granted him to be supream maker of Law and grant him this and we grant him to be above all limits all conditions all humane bonds whatsoever In this Intricacy therefore where the King and Parliament disagree and judgement must be supream either in the one or other we must retire to ordinary justice And there we see if the King consent not with the ordinary Judge the Law thinks it fit that the King subscribe rather then the Judge And if this satisfie not We must retire to the principles of Nature and there search whether the King or Kingdom be to be lookt upon as the efficient and finall cause and as the proper Subject of all power Neither is the oath of supremacy indangered hereby for he that ascribes more to the whole universality then to King yet ascribes to the King a true supremacy of power and honour above all particulars Nor is our allegiance temerated For when the Judge on the Bench delivers Law contrary to the Kings command This is not the same thing as to proceed against the Kings person upon any judgement given against him The King as to His own person is not to be forcibly repelled in any ill doingâ— nor is He accountable for ill done Law has only a directive but no coactive force upon his person but in all irregular acts where no personall force is Kings may be disobeyed their unjust commands may be neglected not only by communities but also by single men sometimes Those men therefore that maintain That all Kings are in all things and commands as well where personall resistance accompanies as not to be obeyed as being like Gods unlimitable and as well in evill as in good unquestionable are sordid flatterers And those which allow no limits but directive only And those no other but divine and naturall And so make all Princes as vast in power as the Turk for He is subject to the directive force of God and natures Laws and so allow subjects a dry right without all remedy are almost as stupid as the former And those lastly That allow humane Laws to obleage Kings more then directively in all cases where personall violence is absence and yet allow no Judges of those Laws but the King Himself run into absurdities as grosse as the former I come now to those seven doctrines and positions which the King by way of recapitulation layes open as so offensive And they run thus 1. THat the Parliament has an absolute indisputable power of declaring Law So that all the right of the King and people depends upon their pleasure It has been answered That this power must rest in them or in the King or in some inferiour Court or else all suites must be endlesse and it can no where rest more safely then in Parliament 2. That Parliaments are bound to no precedents Statutes are not binding to them Why then should precedents Yet there is no obligation stronger then the Justice and Honor of a Parliament 3. That they are Parliaments and may judge of publike necessity without the King and dispose of anything They may not desert the King but being deserted by the King when the Kingdom is in distresse They may judge of that distresse and relieve it and are to be accounted by the vertue of representation as the whole body of the State 4. That no Member of Parliament ought to be troubled for treason c. without leave This is intended of suspicions only And when leave may be seasonably had and when competent accusers appear not in the impeachment 5. That the Soveraign power resides in both Houses of Parliament the King having no negative voyce This power is not claimed as ordinary nor to any purpose But to save the Kingdom from ruine and in case where the King is so seduced as that He preferres dangerous men and prosecutes His loyall Subjects 6. That levying forces against the personall commands of the King though accompanied with his presence is not levying warre against the King But warre against His authority though not person is warre against the King If this were not so The Parliament seeing a seduced King ruining Himself and the Kingdom could not save both but must stand and look on 7. That according to some Parliaments they may depose the King T is denyed That any King was deposed by a free Parliament fairly elected To stand in comparison with these I shall recite some such positions as the Kings papers offer to us And they follow thus 1. THat regall power is so derived from God and the Law as that it has no dependence upon the trust and consent of man and the King is accountable therefore to God and His other Kingdoms not to this And it is above the determination of Parliaments and by consequence boundlesse 2. That the King is supream indefinitely viz. As well universis as singulis 3. That the King has such a propriety in His Subjects Towns Forts c. As is above the propriety of the State and not to be seized by the Parliament though for the publike safety 4. That so farre as the King is trusted He is not accountable how He performs So that in all cases the Subject is remedilesse 5. That the being of Parliaments is meerly of grace So that the King might justly have discontinued them and being summoned they are limited by the writ and that ad consilium Only and that but in quibusdam arduis And if they passe the limits of the Writ they may be imprisoned That if the King desert them they are a voyde assembly and no honour due to them nor power to save the Kingdom That Parliamentary priviledges are no where to be read of And so their representation of this whole Kingdom is no priviledge nor addes no Majesty nor authority to them That the major part in Parliament is not considerable when so many are absent or dissent That the major part is no major part Because the fraud and force of some few over-rules them That Parliaments may do dishonourable things nay treasonable Nay That this hath been so blinded by some few malignants That they have abetted treason in Sir John Hotham Trampled upon all Law and the Kings prerogative And sought to inslave the whole Kingdom under the Tyranny of some few And sought the betraying of Church and State And to the same erected an upstart Authority in the new Militia and levyed warre upon the King under pretence that He levies warre upon them That Parliaments cannot declare Law but in such and such particular cases legally brought before them That Parliaments are questionable and tryable elsewhere These things we all see tend not only to the desolation of this Parliament but to the confusion of all other And to the advancing of the King to a higher power over Parliaments then ever He had before over inferiour Courts Parliaments have hitherto been Sanctuaries to the people and banks against Arbitrary tyranny But now the meer breath of the King blasts them in an instant and how shall they hereafter secure us when they cannot now secure themselves Or how can we expect justice when the meer imputation of treason without hearing tryall or judgement shall sweep away a whole Parliament nay all Parliaments for ever And yet this is not yet the depth of our misery For that private Councell which the King now adheres to and preferres before Parliaments will still inforce upon our understandings That all these doctrines and positions tend to the perfection of Parliaments And all the Kings forces in the North to the protection of Law and liberty I finde my Reason already captivated I cannot further FINIS