list to unsettle principles power being you say nothing else but that might and vigour which a society of men containes in it selfe why should the might and vigour of these being farre the major part be over mastred and concluded by the Votes of those that are deputed by a miner number of the people or why should halfe the Kingdome in which there are but few Burroughes be equalled and overborne in Voting by two Counties out of which many Burgesses are chosen Old Sarum shal have as many Votes in Parliament as the Citty of London or County of Wiltes By which it seemes the Commons are not sent with equallity from all parts nor sent by all how doe they then represent all what reason is there that all the Kingdome should sit downe with their Votes the truth is the King Lords and Commons in conjunction are vertually the whole Kingdome for that all the people did at first submit themselves to their determination 25 H. 8. 21. your royall Majestie and your Lords and Commons representing the whole Realme in this your most high Court of Parliament have power c. So that in the King principally but yet in conjunction with the Lords and Commons is the vertue and power of the whole Kingdome contained But if we shall admit that the vertue and power of the whole Realme is by representation in the Commons alone or at least in the Lords and Commons what will thence follow the Kingdome you will say are the efficient cause of Kingly power and consequently above it they being above it have power over it may reassume it or dispose of it to such persons as they can confide in and this power the Kingdom may confer upon such as they shall choose for that purpose The Observator hath met with a free Gamster though his principles have beene particularly disproved and are distructive not onely to Monarchy but unto all government yet at present let him take all for granted First that the people have such power and secondly that they may transmit it unto such as they shall choose for that purpose But the question is whether they have done it whether they have chosen the new members for that purpose or for some other The King did not create the Lords I beleeve for that end nor create Borroughes with power to send Burgesses for that end nor command the Counties to elect Knights for that purpose nor did the Borroughes and Counties when they did elect give any such power upon the receipt of the Kings Writ by the Sheriffe and warning or notice given to the Freeholders they meet and cry up some mans name this in it selfe imports nothing but with reference to the Writ so that the people intrust them to doe onely what the Writ requires and thereupon the Sheriffe returnes Elegi feci duos milites who have power from the County ad faciendum what I pray quod breve in se exegit in that they have no avthority without the King to judge of dangers and oblige the King and people to goe their way for repelling the â—ame and yet doth the Writ continue as large as ever it hath been seeing neither the Kings writ nor the peoples election made thereupon doe give it I demand whence have the Lords and Commons excluding the King this soveraign power to judge of dangerâ—â— and thereupon if they so cause to take from the King the power of the Kingdome and according to their pleasures to dispose thereof unto certaine confiding persons unto which disposition the King and people are all required to conform and give consent We have beene often told that it is by the fundamentall Law of the Land a foundation so deepe that like the River Nilus it hides its head from all that seeke it never yet could any the most learned instruct us where to finde out this fundamentall Law which hath layen buried so long that no Law-booke Record or Chronicle makes any the least mention thereof But yet at length a certaine Pamphleter defending the Observatour hath hapt upon it but not amongst the Lawes of this Land he was nessitated to dig a little deep for it but amongst natures principles It is radically couched in nature it selfe and irrepealably enacted in her Magna Charta to which all positive Lawes must in equity vaile that the State may lawfully of its selfe provide for its preservation espectally if the King either see not the danger or seing it will not provide for it in such mâ—nner as may give best security to himselfe and the Common-wealth Certaine it is there is no state but is endued with ability and meanes to preserve it selfe instinct of nature will force all men preserve themselves from present destructior and providence teacheth all to provide against future emergent dangers and this surely the State of England hath done in submitting it selfe to the care and protection of a King on whose good foresight and wisdome next under God the welfare of the whole Realme dependeth he sits as on a watch Tower survaying his owne dominions and by the vigilancy of his Councell at home and Embassadours abroad hath timely intelligence of any approaching evill against which if he shall need any extraordinary advise or aide of his Subjects he hath power by his writ to assemble them in Parliament and with their assent to raise mony and other necessary provision for their defence and safeguard And this I say is that meanes of safety wherewith the State of England hath provided it selfe by putting themselves for better for worse under the protection of a King against all dangers And certainly he that ought to protect them against dangers to him it appertaines to judge of danger and so much was admitted by those who argued for the Subject in case of Ship-mony that the King was sole Judge of the dangers but that he could not therupon tax the Subject but by assent in Parliament But what you will object if the King will not see the danger or seeing it will neverthelesse suffer the Kingdome to fâ—eat at all hazzards or what if being carried away with Malignant Counsell he himselfe shall steere it towards rocks and shelves May not the Kingdome in such case save themselves from ruine and oppose the King There can be no Generalissime so uncircumscribed but that if he shall turne his Cannons upon his owne Souldiers they are ipso facto absolved of all obedience of all Oathes and tyes of Allegiance whatsoever for the time and bound by higher duety to seeke their owne preservation by resistance and defence For my part I cannot but thinke that a state after much sufferance seeing utter destruction to be at hand ready to swallow them up may use any good and lawfull meanes as flight and avoydance to preserve themselves from ruine by the hand of a tyranizing Lord yet I dare not approve of active resistance by taking up armes against a lawful Soveraign Prince though
summam supremam gubernationem potestatem in oâ—nes regni ordines habere Here is no distinction of being superiour singulis but not universis 16. R. 2. cap. 5. The Crowne of England immediately subject to God and to none other If immediately subject to God then will not that distinction salve that the people in universali are above it The iudgement then of Bodin may be well applyed unto this observator They which have written of the duetie of magistrates and other such like books have deceived themselves in mayntayning that the power of the people is greater then the Prince A thing which oft-times causeth the true subjects to revolt from the obedience which they owe unto their Soveraigne Prince And ministreth matter of great troubles in Common wealthes of which their opinion there is neither reason nor ground except the King be Captive furious or in his infancy and so needeth to have a protector or Lieutenant appoynted him by the suffrages of the people For otherwise if the King should be subiect unto the assemblyes and decrees of the people he should neither be King nor Soveraigne and the Common wealth neither Realme nor monarchy but a mere Aristocracy of many Lords in power equall where the greater commandeth the lesse in generall and every one in particular and wherein the Edicts and Lawes are not to be published in the name of him that ruleth but in the name and authoritie of the States as in an Aristocraticall Seigniory where he that is cheife hath no power but oweth obeysance unto the Commandements of the Seigniory unto whom yet they all and every one of them feigne themselves to owe their faith and obedience which are all things so absurd as hard it is to say which is farthest from reason Thus he which he doth a little after apply unto the state of England Consider I pray whither it be not true which this author saith that the maintayners of this doctrine doe but feigne themselves to owe faith and obedience unto their Soveraigne They will take the Oath of Allegiance to be every one true and faithfull But then they will tell you that they were particulars onely that tooke the Oath and each in his particular is thereby bound but the people in generall is a certaine universall body in power and nature divided from every man in particular and as an universall body they neither did nor could sweare and consequently are not bound Each particular member to bee admitted into the house of Parliament may sweare that the King is the onely Supreme Governour in all things or causes but being admitted they may altogether deny the King to be supream Governour in any cause or thing Is the King onely supream Governour in disposing of the Militia The making of Laws is a cause or thing and by and under them are all causes things governed yet so far is the King in this thing from being supream Governour that he must be governed and ought to follow the major vote And it were well if he might as a Burgesse intervote or at least as an honest Tradesman might be admitted to vote in election of some Burgesse for so at least by his proxie hee should have some share in the supreame Government though not the only supream Governour But how inconvenient soever this position may be that the people in universali are above the King yet the Observator will prove it true for that the people are the efficient cause and authour of Regall power But we shall first deny that ground And secondly we shall prove that admitting they were the authour of the Regall power yet it doth not follow that therefore they are above it For the first Let us examine whether the people are the authour and efficient cause of conveying Regall power For better understanding whereof it will be requisite first to search out the originall cause and ground of Politicall Government or power to govern in generall and surely wee shall finde that to be no other then the very Law of nature it self The naturall condition of mankind is such as necessarily requires society Naked and impotent weaklings are we when we enter the World and unable without mutuall help and assistance to preserve our selves whence society is absolutely requisite for the preservation of mankind in his infant being as likewise for his future protection from the violence of beasts and brutish men Againe would wee preserve our being without Civill society yet should we be more like beasts then men dumbe and void of all discourse Man therefore naturally needeth Civill society and that society necessarily requires some forme of Civill Government without which it were a confused assembly not a society and such as would ere long become destructive to it self Vbi non est Gubernator corruet populus So then from the Law of nature and necessity is government in generall derived which Law of nature is no other then the Divine Morall Law it self whence I conclude that God is the fountaine efficient cause of all Government or power to governe in the generall So S. Paul Rom. 13. Non est potestas nisi à Deo and again Qui potestati resistit Dei ordinationi resistit True it is although God be the Authour of all politicall power yet doth he not always determine it to this or that particular forme but with the peoples mediate election So that it is lawfull yet not altogether indifferent for a multitude among whom no forme of Government is already established to chuse to themselves either a Democraticall Aristocraticall Monarchicall or mixt Government and to designe the particular person or persons that shall be therewith invested But the power so determined by their vote unto a particular forme and person is from God still not onely as hee is the Authour and universall cause of all things but as from the immediate efficient cause As when anciently Bishops and Presbyters were elected by the people their order or power was not from the people but immediatly from God The people onely nominated or designed the person but neither did nor could confer the power or order of Priesthood Surely the Observator doth not believe that a Horse was the authour of Darius his power and yet was the neighing of his horse the means by which the Kingdome was determined unto him before all the other Persian Lords Neverthelesse he cannot imagine but that this peoples election is the very efficient cause of that Regall power that is elected and setled in some particular person whereas in truth it is but a medium used in the conveyance of it from God the onely authour which instrumentally operates in the conveyance but hath no causall influx at all into the Regall power conveyed whence it is that God challengeth to be acknowledged the authour of Regall power Dan. 2. Hee GOD removeth Kings and setteth up Kings The God of Heaven hath given thee a Kingdome power
when they will and then if the King hath any suit depending in the Common Pleas and finds some of the Iudges inclyning against him they may be held under a fained accusation of Treason till the others have given judgement for the king Surely though the Parliament be a superiour Court yet have the ordinary Courts as firme a foundation as that can have and are more necessary for the people and yet without question upon such pretence no judge may claime a priviledge from arrest in Case of Treason If wee consult with our Law bookes they tell us that the priviledge of Parliament doth not extend to Treason nor yet breach of the peace nor yet as I thinke against the kings debt for the reason and ground of priviledge is because the king hath an Interest in the members to have their advice therefore no subject may arrest them for his debt But that cannot give them priviledge against the king himselfe Vidâ— Dyer 59. 60. Every Burgasse hath priviledge quant larrest nest forsque al suite dun Subject 2 8. 4. 8. b. per Danby Dyer 275. Crompton 8. b. 9. 10. 11 Elsmâ—re Postnati 20. 21. Now whereas the observator saith that this priviledge is Claymed in case of suspition onely and when leave may be had and when competent accusers appeare not This overthrowes the reasons given by the Houses and is not in it selfe satisfactory For thâ—e Attorney Generall in the most competent accuser and the accusation was of downe-right High Treason not onely of suspition and yet upon probable suspition the accused ought to be imprisoned I must therefore intreat the observator in this particular for that it hath beene a cause of so great combustion and taking up of armes within this Kingdome to give me a more full satisfaction There remaines one other scruple wherewith I am perplexed and it ariseth for their voting the Commissions of Array to be illegall whether they deny the power it selfe or onely dislike the â—orme of this present Commision is uncertaine Now as concerning the first it seemes to me that posse regni or the power over the Militia muster array c. is by the fundamentall Law inmovably setled in the Crowne or rather the Crowne setled on it â— being such an individuall right of the Crowne as if a King without it is in truth nothing Opâ—rtet saith Glanvill regiam potestatem armis esse decoratam Jn rege saith Bracto qui recteregit necessaria sunt hac duo arma viz et leges and the Statute maâ—e Elâ—â—ven Henry the Seaventh Cap 1. tells us that by duty of All glance the Subjects are bound to serve their Sovereigne Lord for the time being in his warres fâ—r dâ—fâ—nce of him and the Land against every Robellion power and miget reared agâ—inst â—im And with him to enter and abide in service in battailâ— if the case so require c. And another Statute 4. 5. Phil. Mary Cap 3 Shewes that the Kiâ—gs of his Realm have ever used to muster their Subjects and to Levy a number of them for servâ—ce in waâ—res And so those Reverend Iudges Hutton and Crooke arguing for the Sâ—â—ject in Case of Shipmoney acknowledge the mustering and arraying of the Subjects by Commissions to be undoubted right of the Crowne Hutton fol 39. That there have beene Commissions of Array and provision for Armes and for preparing Armour according to the variety of times for training and disciplining of Souldiers to be prepared for defence c. That this hath beene in use no man can or ever could deny But the armes where-with they were charged were still their owne proper goods And doth not the whole frame of Government of the Realme depend and ever hath done upon Commissions granted by the King to Shereiffs and Iustices of peace whiâ—h are in substance the same with this 12. Hen 7. 17. tels us that at first all administration of Iustice was in the Crowne till people multiplying Shereiffs were deputed under whom are all to be ready for defence of the Realme when enemies come And the Sherifâ—e is to attend the King in time of warre and shall cause the people to goe with the King for the defence of the Realme against enemies and now by all this it appeares that it is the kings right to discipline and array the souldierâ— and to dispose of the strength of the Realme And that this power is inseperable from him even an act of Parliament if it would disable the king tâ— defend the kingdom is voyd being agâ—inst Law and reason Cookâ—s Argument 56. But you saâ— that the Parliâ—ment â—esires no â—em vall of that power which was in the King but that which was in such or such a substituâ—e But whether they desire it or no they have by thâ—i ordinance of Militia taken away that power which was in the King unlesse we shall thinke those to be his substitutes that take it against his wiâ—l and hold it and imploy it against him Againe you tell us it is but for a time disposed of by a tâ—mporary Ordinanc and not absolâ—tely and for ever takâ—n from the King and seeing thâ—y deâ—â—red it not for the present occasion why shâ—uld the King dâ—ny it Should a good fellow desire the observators wiâ—e fâ—r the present occasion I doubt he would not be so kind hearted as to grant it And surely there bee some kinde of things that are not to be departed with though for a day Semiramis desired of her husband king Ninus that he would grant unto her the sovereigne power for five dayes as Diodorus Siculus or as Plutarch reporteth but for one day which being granted her she in that place caused her husband to be slaine and ever after ruled as Queene I hope no body is so wicked as to imagine any such vile intention and yet this story may well shew how a king is no more himselfe iâ— he but for a day depart from his individuall right And such it appeares by his right to the Militia of the Realme and therefore the Commission of Array is in substance undeniably good But then whether the forme of the Commission be legall I can see as little reason to doubt seeing it is for substance and forme both by a very act of Parliament now in force and by his Majesties Ceclararation cleared from all colour of objection So that in mine owne understanding it seemes unquestionable both for matter and forme You will say neverthelesse that I ought to submit my understanding and implicity beleeve it illegall because so voted But this sound somewhat harsh that we should be bound to submit to such votes against an Act of Parliament upon record vnlesse you can assure me that they are proper â—udges against the king and all such as discent from them wheather it be an Act of Parliament or not And if they are yet I pray satisfie mee concerning the manner of their proceedings why was it so hastily determined being a question of that weight and which required a perusall of many ancient Statutes and Records Why were none of the Iudges nor Sarjeants advised within such a quâ—stion of legalitie or illegalitie The Commission is in Latine and old legall Latine are all the members that voted against it able to give the Grammer Construction of it But above all why was it voted without so much as hearing the King or his Counsell to speake in his cause before it were condemned You know what the Poet saith Qui statuit aliquid parte inaudita altera aequum licet statuerit haud aequus futi I spare to load the Observator with any more doubts concerning their past votes the good Consequences whereof and of other concomitant proceedings I doe much feare If the observator shall give me but probable hope of the good event of things and satisfy my doubt in these perticulars I shall with cheerefulnesse ever after pay an humble obedience unto all such votes and proceedings and shall from thenceforth acknowledge my selfe for his industry in setling and satisfying my yet unsatisfied Conscience to be much indebted unto him Meane while I bid him heartily farewell FINIS Decl of the Lo Com of the 2 of Novemb. Luciâ—â— Sâ—â—mâ— 158. 1. H. 74. 6. Plow Com. 238. 244. Camb. Britan. 163. The King hath Soveraign power hee acknowledgeth no superiour but God alone See Sir Tho. Smith de Rep. Ang. li 2. cap. 4. 5. Rep. so 86. de Iure regis Eccl. siastico Rodin de Rep. cap 8. 7 Rep. 12 13. Câ—lv Case Prov. 11. Livy Gen. 14. â—â—od 32. Sir W. Rawley l. 2. Hist. Mund. Sozomen li 6. Seneca Stamford Preface Cokes Instiâ— 2 part pag. 379. â— H. 7. 20. Stamf. 72. 12 H. 7. 17. Mirror of Iustice Bracton lib. 3. fol. 107. Fortescue cap. â—â— 13. â— Rep. Calâ—ins â—ase 13. Virg Davis rep. Rex Angliae est monarcha Imperator in regno suo Cassaneus in catol. glor. mundi Rex Angliae est absolutus Monarcha in regno suo Vide Crompt Juâ—iâ—d 108. Modiâ— tenendi Parliament Page 1. Page 4. Bodin de Reput l. 2. cap. 5. Vide Cambd. Eliz. pa. 118. accord Page 45. Elsmere postnati 99. 33. H. 8. ca. 1. 28. H. 8. c. 19. Davis Rep. 25. Eccles. 8. vâ— 8. Bracton l. 5 tract. 3. c. 3. li. 1. cap. 8. Wâ—sd 6. pag. 45. Arist. Eth. 18. Cap. 10 Plato in Bolitico His Majesties Answer to the 19. propositions Huttons Argument against Ship mony p. 33 page 34. Deâ—lar Maii 27 concerning the Stat. of E. 1.
â—yranizing over his Subjects If the Prince saith Bodin be an absolute Soveraigne as are the true Monarches of Spaine England c. where the Kings themselves have the Soveraignty without all doubt or question not divided with their Subjects in this case it is not lawfull for any one of the Subjects in particular nor all of them in generall to attempt anything either by way of fact or of justice against the honour life or dignity of the Soveraigne albeit that hee had committed all the wickednesse â—mpiety and cruelty that could be spoken for as to proceede against him by way of justice the Subjest hath uo such jurisdiction over his Soveraigne Prince of whom dependeth all power and authority to command Now if it be not lawfull for the Subject by way of justice to proceede against his Prince how should it then be lawfull to proceede against him by way of fact or force for question is not here what men are able to doe by strength and force but what they ought of right to doe the subject is not onely guilty of Treason in the highest degree who hath slaine his Soveraigne Prince but he also which hath appempted the same who hath given Counsell or consent thereto And then he goes on to prove the same by sundry examples taken out of Scripture and then saith he to answer vain objectiâ—ns were but idely to abuse both time and learning But as he which doubteth whether there be a God or noe is not with arguments to be refuted but with severe punishments so are they which call into question a thing so cleare and that by Bookâ—s publiquely imprinted that the Subjects may take up armes against their Prince being a Terant Howbeit the most learned Divines are cleare of opinion that it is not lawfull without especiall command from God And as for that which Calvin faith if there were at this time Magistrates appointed for the defence of thee people and to restraine the insolency of Kings as were the Ephori in Lacedemonia the Tribunes in Rome and the Demarches in Athens that they ought to resist and impeach their licentiousnesse and cruelty He sheweth sufficiently that it was never lawfull in a right Monarchy for he speaketh but of the popular and Arâ—stocratique States of Common-weales We read also that the Protestant Princes of Germany before they entred into armes against Charles the Emperour demanded of Martin Luther if it were lawfull who frankly told them that it was not lawfull whatsoever Tiranny or impiety were pretended yet was he not therein of them beleeved So thereof ensued a most deadly and lamentable Warre the â—â—d whereof was most miserable drawing with it the rume and destruction of many great and noble houses of Germany with exceeding slaughter of the Subjeâ—ts The Prince we may justly call the Father of the Countrey and ought to bee more deare unto every one then any Father Et nulla tanta impretas nullum tantum scelus est quod sit parricidio vindicandum I say therefore that the Subject is never to be suffered to attempt any thing against his soveraigne Prince how naughty and cruell soever he be Lawfull it is not to obey him in all things contrary unto the Lawes of God and nature to fly and hide our selves from him but yet to suffer stripes yea and death also rather then to attempt any thing against his life or honour This is the substance of that learned Protestants discourse which is worth your reading at large But alas all this discourse is besides the present businesse nothing is attempted against the life or honour of the Prince the taking up of Armes and shooting bullets at him is in defence of his Majesties person there are no expressions in this observatour nor yet in him that hath made observations upon a speech of King James with eight and twenty Queres nor in any other Pamphlets that licenciously slye about that doe at all touch the honour of the Kings Subjects may not resist saith Bodin and our best Divines without speciall command but ouâ— Brethren now have speciall instruction from the Spirit to doe what they doe or if they have not the Spirit assuring them that they may take armes against their Prince yet Master Cal. hath well distinguished that it is one thing to sight against a King another thing to fight against the lusts of a King Against the lusts of a King my beloved Brethren we may fight nay we ought to fight against them And our Observatour stands in defence of that distinction 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 authory though not person is warre against the King But in truth are not all these shifting distinctions like a Shipmans hose that will fit an Jrish Rebell as well as an English I dare not speake my minde of that distinction the Observator maintaines but you shall heare what an honourable Chancellour of England hath long since said of it This is a dangerous distinction betweene the King and the Crowne and betweene the King and the Kingdome it reacheth too farre I wish every good Subject to beware of it It was never taught but either by traytours as in Spencers Bill in Edward the seconds time or by treasonable Papists as Harding in his confutation of the Apologie maintaineth that Kings have their authority by the positive Law of Nations and have no more power then the people have of whom they take their temporall jurisdiction and so Ficlerus Simanca and others of that crew by seditious sectaries and puritans as Buchanan de Jure Regni apud Scotus Penry Knox and such like in Calvins case it is reported that in the reigne of Ed. 2. the Spencers to cover the treason hatched in their hearâ—s invented this damnable and damned opinion that homage and oath of ligeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King upon which opinion they inferred execrable and detestable consequence 1. If the King doe not demean himself by reason in the right of his Crown his leiges are bound by oath to remove the King 2. Seeing the King could not be removed by suit of Law that ought to be done per aspertee 3. That his leiges be bound to govern in aid of him and in default of him All which were condemned by two Parliaments I will not say that this concernes the Observator or any body else let others judge I only say I am unsatisfied how we may lawfully use active resistance with our swords in our hands against a lawfull soveraign Prince though tyrannizing or if it might be done yet certainly not till after much sufferance and that destruction shall open its jawes ready to swallow us up and not upon imagenary feares and jealousies such as we have had now at lest twelve moneths past