of the name few know because they little understand the thing It 's not called so as many think because the Jura Majestatis are divided and given some to the Peers some to the people and some in some States to the Prince For this tends to confusion and doth not well suit with the Nature of Sovereign Power Therefore it 's the cause of many Quarrels and Dissentions But it 's called mixt because either three or at least two of the States are mixt together so as that the Sovereignty is jointly in them all and in the whole and of these there are two Sorts For some time there is no Prince in the Administration and then it 's in the Commons and the Peers not in Peers and in Commons severally but in both jointly Sometimes it 's in omnibus in Prince Peers Commons Yet these in the Administration may have their several parts and different manners of acting Therefore we must not judge of States according to the manner of Administration though the Administration will give great light and help us to understand the Constitution This kind of Government is called a Free State a popular State a Republick or the Republick and may be the best State of all others where Majestas is tota in toto yet there may be several kinds of this manner of Government which by the Philosopher as some think is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Polity Machiavel informs us That Experience of the Inconveniencies of pure States put men on work to find out this and for the most part it may be so If either of the two or any of the three States be predominant in the Administration the State is denominated from the prevailing part For where the Prince hath the Title of King and is predominant in the Exercise of the Power it 's called a Kingdom or Monarchy where the Peers it 's an Aristocraty where the Commons a Democraty and yet if it be a right mixture it can be none of these And in this particular many are deceived For where the whole Power is wholly in the whole there Populus that is King Peers and Commons are the proper subject of Majesty in the Constitution by and in which if any be predominant it cannot be a Free State. Such a Government the German Empire and the State of Venice seem to be Yet in this latter the great Council which some tell us consists of Peers is counted and judged to have the supream Power Yet if we may believe Machiavel the Families out of which they are chosen were at the first Constitution the whole People The Lacedaemonian State is thought by many to be mixt and some say the mixture was ex Democratia praedominante Aristocratia diminuta yet this is very improper and cannot be true The State of Rome seems in the time of the Kings to be a Monarchy After that an Aristocraty in the Senate and the Patricii But when Plebs did jubere Leges then it was a Democraty in the judgment of many Yet upon diligent search it will be found otherwise For though the King was the chief Pontiff and did call the Assemblies had the chief and sole command in War for they gave him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yet Halicarnassaeus lets us know That this Form was taken from the Lacedaemonians where the Kings had not absolute Power they were not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but were limitted by their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or great Council and amongst the Romans by their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is their Senate They must not do what they will but what the Senate did determine Yet we shall often find this mixture very imperfect or very much altered in tract of time from what it was at first To say nothing of Platonick and Vtopian Commonwealths which are not practicable nor people capable of them the summ of all this Head is this That God hath given to Men in their several Communities a power to protect the Just and punish Offenders according to wise Laws and just Judgment and also a power to preserve themselves and justly maintain their own Right against all Enemies and Invaders Yet he hath left them at Liberty to dispose of it several ways and trust it in the hands of one or more who if they once take it upon them must exercise it and be just For he that ruleth over men must be just ruling in the fear of God 2 Sam. xxxiij 3 section 10 After 1. The generals premised 2. The several ways and manners of disposing Majesty in a certain subject handled I proceed to say something of the Constitution of the State of England which hath long been governed by Kings and Parliaments There was indeed a time even after the Saxons were setled in this Nation when there was no King but Forty Lords who at length chose a King which should have no Peer And there was a time when there were many Kings And after that we find one King and Parliaments and this before the Conquest For this model of ours began in the time of the Saxon Kings and was brought to perfection some say before some say in Edward the Confessor's time What the power of these Parliaments and of these Kings were is the great Question For that once known the Constitution will be evident There was a Power of Kings and also of Parliaments severally and a power of them jointly considered we find the real Majesty in the People and personal Majesty in King and Parliament jointly and a secondary personal Majesty sometimes greater sometimes less in the Kings in the intervals of Parliament But to observe a method and proceed more distinctly I will 1. Presuppose some things 2. I will say something of the Kings 3. Something of the Parliaments severally 4. Something of them both jointly 1. Therefore I will suppose the Government of England to have been by King and Parliament before the Conquest and to have continued so till our days And whosoever will not grant this must either be very ignorant or very partial 2. I will take for granted That there have been extraordinary cases wherein the Rules of the Constitution either have not or could not be observed 3. This is also true that sometimes when they might have been followed yet either the constitution of the Parliament or the carriage of the Kings was such as that they have violated the same 4. Wise and intelligent men will not deny but that in our days the Government was so altered and corrupted that the first constitution was hardly known and it was a difficult thing either to reform it or reduce it to the ancient form section 11 These things supposed in the second place I will examine 1. How the King acquires his power 2. What his power acquired is 3. How far it 's short of a plenary personal Majesty 1. The manner of acquiring this Power and Title is either by deriving it from the first investiture or
these were not called but the chief of them as Earls who possessed twenty Knights Fees and Barons which had to the value of thirteen Knights Fees and a third part of one 3. That because these were too many some of them were call'd to Parliament some omitted and only such as were called were counted Barons the rest not 4. This being taken ill the Barons caused King John adigere to covenant under the Broad Seal to summon severally by so many Writs the Arch-Bishops Abbots Earls and the greater Barons of the Kingdom 5. Yet Henry the Third so little regarded that compact that he called and kept a Parliament with an hundred and twenty Spiritual and only twenty five Temporal Lords though he had numbred two hundred and fifty Baronies in England 6. Edward the First omitted divers of those whom Henry the Third had summoned So that it will be a very difficult thing to rectifie or reduce unto the first institution this House as distinct from that of the Commons For it should be known 1. What kind of persons must constitute this other House 2. What their Priviledges be 3. What they must do which the House of Commons may not must not do section 15 By all this something of the nature of the Parliament may be known But then what is the power of this assembly either severally considered without the King or jointly with the King And that they may make Orders and Ordinances pro tempore will be granted and also which is far more if the King have no Negative voice the Legislative and Judicial power is in them and their ultimate Resolves and Dictates in all matters of Counsel must stand And if so then reason will conclude that if the King refuse to be personally or virtually present and to act with them they may do any thing for the good of the Kingdom without him which they may do jointly with him Yet because Laws and Judgment are ineffectual without execution therefore the King being trusted with the execution was required to give his consent that he might take care of the Execution For to that end was he trusted with the Sword of Justice and War that he might protect the people and see that Laws and Judgments be executed If we consider the Parliament as consisting of King Peers and Commons jointly it is the first subject of Personal Majesty and to it and it alone belongs all the Jura Majestatis personalis They have the power Legislative Judicial Executive to exercise it in the highest degree and may perform all acts of administration as distinct from the Constitution They are the highest assembly for Legislation the highest Counsel for advice the highest Court for Judicature section 16 This is the power of the Parliament which can do many and great things yet some things they cannot do for they are limitted not only by the Laws of God but also by the Laws of the Constitution Sir Roger Owen tells That the Parliament cannot do all things For 1. Many Acts are Voted for errors in matter of fact and for contrariety in words and sometimes they have idle and flattering proviso's 2. A Parliament hath not power to ordain that a Law shall not be abrogated for the space of twenty years for a latter Parliament may repeal their Acts. 3. That a Parliament cannot Enact that if there were no Heir to the Crown that the people should not be able to chuse a new King. 4. It cannot change the form of our Policy from a Monarchy to a Democraty 5. It cannot take away divers Prerogatives annexed to the Crown of England or that the King should not be able to dissolve the Parliament at will and pleasure yet in another place he tells us that he cannot dissolve the Parliament at will and pleasure and again he is not above the Parliament because he cannot be above himself and in Parliament he is Maxime Rex He further informs us that the common Law is the King's Inheritance and how the Parliament may wither away the Flowers of the Crown The true reason why the Parliament cannot do some of these things nor others not mentioned by him is because they have not real but personal Majesty They cannot alter the Government nor take away divers things belonging to the Crown because they did not give the Prerogatives of the Crown at the first the Commons of the Realm gave them as he confesseth The form of Government was first constituted by the Community of England not by the Parliament For the Community and people of England gave both King and Parliament their being and if they meddle with the Constitution to alter it they destroy themselves because they destroy that whereby they subsist The Community indeed may give a Parliament this power to take away the former Constitution and to frame and model another but then they cannot do this as a Parliament but as trusted by the people for such a business and work nay they may appoint another assembly of fewer or more to do such a work without them They may set up a Consilium sapientum which may determine what matters are fit to be proposed to the Parliament and in what order and also contrive a Juncto for all businesses which require expedition and secrecy which may act without them whether the Parliament it self can do such things or no may justly be doubted What may be done in extraordinary cases is one thing what may be done in an ordinary way another When he saith that the Parliament cannot change the form of Policy from a Monarchy he presupposeth our State of England to be a Monarchy yet if he distinguish not between the Constitution and the administration he may be guilty of an error For it 's not a Monarchy but only in respect of the Executive part in the Intervals of Parliaments Our Ancestors abhorred absolute and arbitrary Monarchs therefore before they did establish a King they made a bridle to keep him in and put it upon him This is plain from Bracton Fortescue the Coronation Oath and the Mirror section 17 From all this we may conjecture what the Constitution of England was It was no absolute Monarchy that 's plain enough Neither was it a State of pure disposition but mixt Neither were the Jura Majestatis divided some to the King some to the Lords some to the Commons it was of a far better mould The personal Majesty primary was in King Peers and Commons jointly in the whole assembly as one body this may appear several ways as 1. From this that it was a Representative of the whole Nation and as it was a general Representative of all England and no ways else was it invested with this personal Sovereignty It must represent the whole Community all the Members thereof of what rank or condition soever not only the Laity but the Clergy too these are words used in our Laws and good enough though disliked by
which are the great Bulwark of the Kingdom had been intermitted for sixteen years at length when no man did expect one is called but suddenly dissolved Yet the Scots entred with a puissant Army into the Kingdom made a necessity of calling a second which is summoned confirmed by an act of continuance acts high makes great demands continues long Yet it 's deserted by the King and many of the Members opposed by an Army defends it self undertakes the King in England Scotland Ireland It maker a new broad Seal having formerly seized upon the Navy and the Ports recruits it self by new Elections Then they fall out with the Army after that they are divided amongst themselves In the end follows the seclusion of many of the Members and the remnant act and by the Army and the Navy doth great things but at last even this remnant by this Army is totally routed and dissolved This is that long-sitting Parliament which some say might have been good Physick but proved bad Diet. Never Parliament of England varied more never any more opposed never any suffered more never any acted higher never any effected greater things It made an end of Kings and new model'd the Government 3. The King deserting the Parliament set up his Royal Standard and is opposed fought beaten finally and totally conquered delivered by the Scots into the Parliaments hands is confined secured as a guilty person tried judged condemned to death executed His Family and Children banished and disinherited of the Crown wander in foreign Countries and many great Ones suffered and fell with him Many foreign States stood amazed when they saw the potent Prince and Monarch of three Kingdoms reigning in greater power and splendour than ever any of his Predecessours cast down so suddenly from the heighth of his excellency laid in the dust and brought to nothing 4. The Civil Government was much changed from the primitive Constitution neither could the Petition of Right help much because the King and Ministers of State would not observe it but acted contrary unto it So that it was arrived almost at the height of an absolute Monarchy But as the winding of a string too high is the breaking of it so it fell out with Monarchy 1. The Parliament first require an explication of that Act for Liberty afterwards limit the Regal Power curb it assume it exercise it and in the end take it wholly away Some indeed of the Lords and Commons declare That they had no intention to change the fundamental Government by King Peers and Commons and perhaps really intended what they spake yet they could not perform for that very frame was taken asunder and abolished Upon which followed three several models one after another The 1. By the act of alteration The 2. By the new instrument The 3. and last by the humble petition of advice and yet we are not well setled So difficult it is after that a Constitution is once dissolved to establish a new frame So that it may be truely said that never King acted so much against a Parliament never Parliament prevailed so much against a King. Some were for the State of Venice and that form of Government as the most perfect model for England Some intend levelling some did judge it best that the General should have continued onely General for a while and to head onely the godly party a strange fancy and conceit 5. As for the Church many of the English began to look towards Rome many came home unto the Church and turned Papists Innovasions were daily made in Doctrine and Discipline and Prelacy seemed to advance with the Royal Power But this great Parliament puts a stay to all begins to reform and in reforming incline to an extream They take away Episcopacy Root and Branch abrogate the Liturgy make some alterations in the Doctrine compose a new Confession of Faith a Directory for worship and begin to settle a Presbyterian Discipline Yet that in the very rise was opposed by the Dissenting Brethren and never could be fully and universally so imposed as to be received Hereupon contrary to promise the Golden Reins of Discipline were loosed a general Liberty taken and swarms of Sects appear profess and Separate Errors Heresies Blasphemies do almost darken this Church and overspread the same Never from the first receiving of Christianity in this Nation was there so great a change in Religion known to be made in so short a time 6. Yet after all these bloody Wars and greatest Alterations in Church and State the substance of the Protestant Religion continues the Universities stand Schools remain Learning flourisheth Sabbaths are observed Ministers maintain'd never better Sermons never better Books The Orthodox Christian is confirmed Matters in Religion are not so much taken upon trust and tradition as formerly Arts and Languages advance the light of the Gospel shines The Laws abide in force Justice is administred peace enjoyed the Protestant Interest in forraign parts maintain'd England is become a warlike Nation furnished with gallant Men both by Sea and Land is courted by great Princes is a terrour to our Enemies a protection to our Friends and if we could agree amongst our selves it is an happy Nation Yet all this is from the wonderful wisdom of our God who knows how to bring Light out of darkness good out of Evil and from his Exceeding mercy who hath heard the Prayers of a remnant of his people in behalf of this Nation to which he intends good if our sins do not hinder And for my part I will not cease to Honour and to pray for such as from their hearts have endeavoured our good and especially for such which God hath made so eminently instrumental for our present happiness Such as are trusted with great power and employed in great business are many times perplexed with great difficulties and especially in distracted times And if they do something amiss we should not harshly Censure much less envy them but rather pity them and pray for them and remember our own frailty and that if we had been in their place we might have done worse But to draw unto a Conclusion of this long Chapter and not to offend the Reader let 's consider what may be done to finish and perfect any thing begun tending to our settlement Far be it from me to presume to prescribe any thing to wiser men who have seriously considered of this very thing already Yet I may be bold to deliver mine own Opinon with humble submission to my betters and if I err I may have the greater hope of pardon because I shall speak as one unbiassed and aiming with a sincere heart at the publick good of the English Church and State which though fearfully shaken and shattered are not yet destroyed And 1. This is certain that there are but two reasons of our unsettlement 1. Ignorance 2. Wilfulness For we either know not how to settle and what the best means are which most effeually
Subject as a Subject The Question is therefore Whether he that is a Soveraign may not be in some case resisted by the people and if he may in what case a resistance is lawful and free from the guilt of Rebellion Our Case in England is extraordinary and not easily known by many of our own much less by strangers not acquainted with our Government The Resistance in the late Wars was not the first that was made against the Kings of England by the people of England though it differed from all the former The difference was between the King and Parliament whereof he was a part yet severing himself from the whole body And the Parliament was no Subject considered as a Parliament for then the King himself being an essential part thereof should be a Subject As he was divided willingly or wilfully from it he could be no King no Soveraign For if the power was in the King and Parliament joyntly it could not be in him alone Besides when there is no Parliament we know he is a King by Law and the Kingdom is Regnum pactionatum non absolutum If he make himself absolute by that very act he makes himself no King of England For the common and fundamental Law knows no such King. Yet this was all either he or his party could say to justifie themselves If he say the Militia was his the Parliament will say it 's theirs as well as his and except he be absolute it must needs be so For if the supream power be in King Peers and Commons joyntly the Militia which is an essential part of this power could not be his alone The Parliament conceived that when he left them he left his power with them if that could be made good by the Fundamental Constitution then all England was bound to subject to them for the time and obey their just Commands And if it were not so how could all such as took up Arms with the King against them be adjudged Traytors as they were If these things be so there could be no Rebellion upon the Parliaments side because according to the Rules the Parliament was no Subject the King then separated from the Parliament refusing to Act with them Acting and Warring against them was no Soveraign The Question in the time of those bloody and unnatural Dissentions was stated several ways as Whether it was Rebellion in Subjects Commissioned by the Parliament to resist evil Counsellours Agents Ministers of State and Delinquents sheltring themselves under the King as divided from the Parliament and acting against the Laws by his Commissions or Whether the Parliament of England lawfully Assembled where the King virtually is may by Arms defend the Religion established by the same Power together with the Laws and Liberties of the Nation against Delinquents detaining with them the Kings seduced person or Whether the Parliament might not grant a Commission to the Earl of Essex by a force to apprehend Delinquents about the King to bring them to a due Tryal and this even against the personal will of the King Or whether after the Parliament had passed a Judgment against the King they might not lawfully give Commission to General Fairfaxe to apprehend the Kings person and bring him to the Parliament or Supposing the King to be an Absolute Monarch whether any of these things could be done by any Commission from the Parliament as the Condition of the Kingdom stood at that time Thus and several ways was the Question then stated and debated But the Truth is that if the Fundamental Government be by King Peers and Commons joyntly and that neither the Parliament consisting of these three States nor the Parliament as distinct from the King nor the King as divided from the Parliament could alter this Constitution nor lawfully act any thing contrary unto it then so soon as the Commission of Array on one side and of the Militia on the other were issued out and were put in Execution the Subjects in strict sense were freed from their Allegiance And if they acted upon either side their actings were just or unjust as they were agreeable or disagreeable to the Fundamental Laws and the general and principal end of Government For even then their subjection to the Laws of God and Fundamental Constitution of the Kingdom did continue and they were even then most of all bound to endeavour with all their power the good and preservation of their Country bleeding and conflicting with the pangs of Death And in that cause no man was bound too scrupulously to observe the petty Rules of our ordinary administration which were proper for a time of Peace which could not help but hinder her recovery In such an extraordinary case many extraordinary things if not in themselves unjust might have been done to prevent her ruine And if the Parliament had gone at first far higher than they did they had prevented the ruin of the King the dis-inherison of His Children and very much effusion of blood which followed afterwards The business then was easie which afterwards became difficult and could not be effected but with the loss of many thousands and the hazard of themselves for their Cause at first was well resented and had many advantages but was much prejudicial by too much intermedling with Religion and making some alterations in the Church before the time section 9 The next Question is whether since the Commencement of the War there was any certain ordinary legal Power which could induce an Obligation or there was any such Power after the Wars was begun it continued after the War was ended till the secluding of the Members and upon that seclusion ceased The answer unto these two Questions seems not to be difficult For there neither was nor could be any such certain ordinary legal Power which could in the strict letter of the Law bind all English Subjects to subjection For during a Parliament this binding power is in King Peers and Commons joyntly in the Intervals of Parliament it s in the King acting according to the Laws of Administration But all this while nay to this day there is no such Parliament no such King. And both in the time of the Wars and after both King and Parliament acted not only above but contrary to many of our Laws which in the time of Peace are ordinarily observed Neither of them could give us any Precedent for many things done by them and those few Precedents alledged for some of their Actions were extraordinary and Acts of extraordinary times If the Counties and People of England had not been ignorant and divided the division of King and Parliament did give them far greater power than they or their Forefathers had for many years But it did not seem good to the Eternal Wise and Just Providence to make them so happy Punished we must be that was his sentence and punished we have been yet few of us receive correction or return to him that Smote us Some
of the same and Scotland vanquished In all our sad divisions which happened from first to last and are not wholly yet ended to this day Two things are worthy the serious consideration of wiser men than I am 1. What party for time past hath been most faithful to the English interest 2. What course is to be taken for to setle us more firmly for time to come For the first we must understand what the English interest is The interest of England is twofold Civil and Ecclesiastical for we are English men and Christians The Civil interest is salus populi Anglicani there is no doubt of that for the peace safety liberty happiness of our dear Country is the end whereat we are all bound both by the written and natural Laws of God to aim The interest Ecclesiastical is the Protestant Religion and the perservation of the substance thereof Prelacy Presbytery Independency much less Antipaedobaptism and other Sects are not essential but accidental to it This being the interest of England we cannot judge of the faithfulness either of the King 's or Parliaments party by the quality of the persons of either side For there were both good and bad on both sides who had their several grounds of adhering to this or that party and their several ends and neither their grounds nor ends good Nor can any man justifie all proceedings and actings of either side both had their errours Nor must we judge of them according to their protestation for both could not by such contrary means attain the same end as both sides protested to maintain the King the Parliament the liberty of the Subject the Laws and the Protestant Religion Neither in this particular must the Laws of the English Constitution and Administration be the rule for both acted not only above the Laws but contrary to the latter of them at least For no Laws could warrant the Parliament to act without the King or the King without the Parliament much less was it justifiable that there should be in one Kingdom two not only different but contrary commands supreme and from different heads and persons This was directly against the very nature of all Common-Wealths which have only one first mover and one indivisible supreme power to animate and act them section 19 The Rule therefore must be the Laws of God as above the Laws of Men and we must consider according to these divine Rules what was the state of the Controversie the justice and equity of the cause made evident and the just necessity of doing that which was done Neither must we look at the cause only as just in it self but also how it 's justly or unjustly maintained For men may use such means as shall never reach the just end intended but also such as may be destructive of the cause it self and raze the very foundation of it Besides all this before a perfect judgment can be made the secret counsels contrivances designs hidden actings of the chief Actors should be known yet these many times lie hid and are not known or if known yet to very few and some of these few cannot found the bottom Many things are charged upon the King as acting against the English interest as Civil as that he dissolves Parliaments without just and sufficient cause that he intermits Parliaments for sixteen years together that having signed the Petition of Right he acts contrary to it imposeth Ship-money calls a Parliament signs the Act of Continuance deserts it calls the Members from it calls another Parliament at Oxford challengeth a negative Voice to both the Houses raiseth a War against it though he was informed that this tended to the dissolution of the Government that whosoever should serve to assist him in such Wars are Traitors by the fundamental Laws of this Kingdom and have been so adjudged in two Acts of Parliament 11 Richard 2. and 1 Henry 4. And that such persons ought to suffer as Traitors These with other particulars charged upon him seem directly contrary unto the civil Interest of the Kingdom Again to Marry a Popish Lady upon Articles directly contrary to the Laws of England and the Protestant Religion established by Law to entertain Twenty eight Popish Priests with a Bishop to tolerate Mass in the Court to receive Three Agents from the Pope one after another Pisano Con Rosetti to maintain the Queen-mother to engage the generality of the People of England to retard the relieving of Ireland to admit divers of the Popish Irish Murtherers and Rebels into his Army to call our English Forces sent to relieve the poor distressed Protestants of Ireland out of that Nation and employ them against the Parliament of England to suffer some of the Heads of the Irish Rebels to be so near his Person to endeavour to bring in the Duke of Lorrain with his Forces into this Nation to contract with the Irish Rebels upon condition to enjoy their Religion to furnish him with Ten thousand Irish Rebels to strengthen his party in England with divers other acts like unto these is conceived to be not only inconsistent with but plainly destructive of the English Protestant Interest And if this be true it must needs be so Yet it might be said that the King endeavoured to maintain his own regal Power the Episcopacy and Liturgy established by Law and that he did not oppose the Parliament but a seditious party in the Parliament and other Sectaries whose principles were destructive both of all civil and also Ecclesiastical Government and without the judgment of able Lawyers and learned Divines he did not undertake the War either against Scotland or England or any other It 's true that of those who adhered to the King and liked not the Parliaments proceeding there were some consciencious persons who judged the King an absolute Monarch and did not like many things done by that party yet they thought it the Duty of Subjects to suffer and that it was no ways lawful to resist But the Casuists say That Ignorantia excusat a tanto non a toto their Ignorance might make their Crime less yet no ways free them from all Guilt It was not Invincible they might easily have known that the King of Enland was no absolute Monarch seeing he could not impose any Subsidy upon the Subject nor make or repeal a Law without the Parliament neither could he by his Letters or personal Command revoke the Judgment of any Court. And though they might be Civilians or read Foreign Writers which take our Kings for absolute Sovereigns yet no ancient Lawyers no Parliaments did declare them to be such Nay they might have known that they themselves obeying the King 's personal Commands disobeyed him as King and that serving him in the Wars they were guilty of High Treason against the Kingdom and against the King's Crown and Dignity Of these Royalists some have been high and cruel against their Brethren the Parliamenteers and have censured them
think an ordinary power continued on foot till the Members were secluded yet there was no such thing for the two Houses could not according to ordinary Rules exercise the Ordinary power of the King though they might use his name and did so contrary unto his consent If they should alledge that his power was forfeited and did divolve upon them that would be hard to prove We know well enough if it be not in him where it is it could no ways be in them but for the exercise and in them for that end it was an extraordinary way Some would say that if the King was dead either naturally or in Law a Parliament must instantly dissolve and be no Parliament because there was wanting an essential part The act of continuance could not help them in this case for it presupposed all the three essential parts Neither could any particular Parliament enact that there should be a Parliament without all the three essential members If they should make any such Act by a following Parliament it may be repealed and the parties in the name of the People of England called to account for altering the Fundamental Government For we must not favour on particular Parliament so as to wrong all England or suffer any ill example to be given Yet if ever any Parliament did deserve not only to be pardoned if they did some things amiss but to be rewarded for their service surely this Parliament did for never any suffered more even from him who summoned them and from them who chose the particular Members Never any was brought into the like straits I mean that this respect was to be had to the upright party But if there was no ordinary power what must the people do in such a case and distracted condition In this I will give mine opinion in that which follows section 10 Whether could the Act of alteration which required the ingagement or any of the alterations which followed introduce an Obligation to Subjection The answer is they could not in any ordinary way do any such thing For if the constitution was dissolved and the personal Majesty forfeited it must devolve unto the people and no Parliament nor part of a Parliament or any other person but the people could either alter the former Government nor Model a new one For according to the general principles of Government the right of Constitution Alteration Abolition Reformation is the right of real Majesty if it be not their right then the people may be bound to Subjection without their consent A Parliament may declare it but some make it a Question whether their Declaration be binding If they who required the engagement did intend to exclude a King who should separate from them or refuse to act with them or challenge an Absolute power 2. To abolish the House of Lords as distinct from that of the Commons with a Negative Voyce in Legislation and of such Lords as were Lords by Writ or Patent only 3. To declare that upon a dissolution the power was devolved to the people it was the more tolerable Yet who gave them power to do this or declare this When I mention the people of England as the primary subject of Power and the heir of real Majesty I mean the rational judicial party for no consent of people that is not rational and agreeable to the Laws of God is of any force And I exclude not only such as are barely Members virtually but all Rebels Traytors and malignant persons For in the midst of these Bloody distractions and perplexity of minds there was a Sanior pars a rational judicious party that unfeignedly desired the Peace Welfare and happiness of England And when many Members of a Community are insufficient of themselves to judge what is just and good many of them perverted the power remains in parte saniore aut in parte hujus partis valentiore and in those who upon right information shall consent with them For many who are not able of themselves to judge yet when they are rightly informed are willing to consent But to return unto the former Question seeing there was no ordinary power which could introduce any strict Obligation what must the People do in such a Case What 's their duty The Answer is That though there was no Ordinary yet there was an Extraordinary Power ever since the Wars were ended to this day which they were bound to obey For 1. Seeing the Community of England did remain and in the same better party Real Majesty did continue 2. The Fundamental Government could not be dissolved by one King and one Parliament though they both had agreed to do it For though as to them it was actually dissolved yet the right might remain virtually in the Community I mean a right to continue it if they pleased 3. As the Case now is and was since the Wars were ended this Fundamental Government could not be so restored as to Act. 4. All parties did agree that there should be a Government and a Power for Protection and Administration of Justice but the difference was what the Model should be and most of all who should Exercise this Power Some did challenge and seek it for themselves some for their Friends whom they conceived to favour their party and interest For many of the Royalists were for the late Kings Eldest Son not so much for the Publick good as for the private interest and many other parties were guilty of the very same crime 5. Government it self for the substance is more material than this or that form and the Exercise of Power than the Exercise by such or such particular Persons For if there be not a Governing Power and some to Exercise it and the rest to submit there can be no protection from Enemies no Justice no Order but a meer Anarchy upon which a ruin instantly and unavoidably will follow For prevention whereof much may be done which in a time of safety would be utterly unlawful The people may submit to any whom they shall conceive shall be able to protect them and willing to preserve the Laws for Administration of Justice They need not stand upon doubtful Titles nor Quiddities in Law but may do what they can do so that it be not unjust by the moral Laws of God. 6. Seeing some particular Government was necessary and all rational men did agree in this therefore there was an obligation to subjection and every particular person was bound to submit unto the present power under which they enjoyed the benefit of the Laws and protection both from publick Enemies and private Injustice This is not so to be understood as though every one or any ought to rest in this extraordinary condition but to desire and endeavour to restore the first constitution freed from corruption or some part or degrees of it and proceed by little and little as God in divine providence shall prepare the people for it and enable us to introduce
the manner of Administrations Some converse in other States to learn Fashions or Wickedness some as Spies and Intelligencers The ends and the events are therefore several Some are good and benificial to themselves to their Country to other Nations The Issue of some mens Travel is Vanity or Vice or Mischief There are Strangers who do not meerly Travel and Sojourn but also fix their Habitation in other States these are called Advenae incolae and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 though the word be used for Pilgrims and Sojourners Neither of these are properly Subjects of that State where they live yet they ought to carry themselves fairly and not do any thing to the prejudice of the Laws or Government of the places where they do converse and according to their good carriage they are to be used civilly It was Gods charge to Israel to use Strangers well because they themselves had been Strangers in the Land of Aegypt For Strangers are used strangely and in Forraign Countries exposed to many abuses and dangers But special kindness is to be shewed to such as are miserable and fly for Religion or for protection The Magistrate of every Common-Wealth should have a special eye upon these Strangers and enquire into their carriage and their practice To receive too great multitudes of them may be dangerous and some may do mischief either by corrupting the Subjects or seeking to betray the State. Neither is it safe to naturalize many of them much less to advance them to places of Power and Trust which must needs offend the Subjects and and Natives especially when these are favoured and prefered and the other are neglected The Judgment of God upon the Jew in this respect is very heavy for they are commonly hated in all places and not suffered to inhabite in any Nations and where they are permitted to dwell and trade hard terms are put upon them Perfecte plene subditi sunt nati section 12 facti There are besides Strangers such as are properly and compleatly subjects who according to their subjection enjoy the benefit of protection the rights and priviledges of Subjects Yet there is a great difference amongst these according to the several constitutions of States For some are far more free and enjoy far greater priviledges as the Roman Subjects did as is evident in Paul who said to the Centurion Is it lawful for you to scourge a man that is a Roman and uncondemned Acts 22.25 For a Roman could neither be condemned unheard nor scourged if not condemned These had divers other priviledges which the Provincial Subjects had not before they were infranchised The Subjects of England if they enjoy their right are more free then the Subjects of France or Spain and divers other Countries Some are little better than Slaves especially such as live under Despotical Soveraigns The right and priviledges of Subjects are acquired several ways which may be reduced to two For some are such by birth which are called Cives originarii some by allection This distinction is the same with natural and naturalized as you heard in the Doctrine of a Community This distinction is implied in these words of the chief Captain Lysias saying With a great summ obtained I this freedom and of Paul who answered but I was free born Acts 22.28 The seas Subjects were essentially the same and if either should as such be perferred the native Subject caeteris paribus had the priority Subjects also as Subjects are equal though in divers other respects accidental unto them they may be very unequal some may have special priviledges some may be Officers and by vertue of their Office have their priviledges Here some take occasion to speak of the multitude and paucity of Subjects in the same Territory and State. If they be few they may receive Fugitives and adopt Strangers as Romulus did If they be too many they may send out Colonies and make new Plantations If the multitude be not too great it 's the honour of the Soveraign and safety of the State if too few it 's the weakness of a Nation and a danger of destruction For in the multitude of people is the King's honour but in the want of people is the destruction of the Prince Prov. 14.28 Yet this is to be understood of a multitude well qualified and ordered by a good Prince For Tyrants and Oppressours waste and destroy their people to their own ruin section 13 There is another distinction of Subjects for they are Ecclesiastici Saeculares By Ecclesiastical persons are understood such as are indeed Subjects yet their Office and Work is in matters of Religion they act between God and Man as Messengers and Mediators between them They deliver God's mind to men and offer mens Prayers and Gifts to God. They officiate in Divine Services and that 's their chiefest Work. They are singled out from amongst men to direct others unto eternal Life These anciently were called Priests and their place was honourable yet there was an imparity amongst themselves In the New Testament these Ecclesiastical persons never called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Priests but Ministers of the Gospel or Presbyters under which words are signified all Apostles Prophets Evangelists Pastours and Teachers So that the word Priest was only given to Christ or Melchisedeck or the Levitical Pontiffs and Ministers or some Heathenish Sacrificer Yet in after-times because the Sacrament of the Eucharist was a Commemoration of the Sacrifice of Christ therefore in respect thereof the Table was called an Altar and the Minister a Priest. At length the Church of Rome turned the Sacrament into a Sacrifice properly so called and the Minister into a Priest. And this was the original of the Mass. This Ecclesiastical Function was instituted by God and very honourable both in that respect and also because their work is so excellent and necessary for upon it under God Religion and the benefits of Religion both private and publick temporal and eternal do much depend To these by divine Commands Maintenance is due from the people and they have been much honoured in well constituted States with many priviledges and immunities But their own unworthiness and the prophaneness of the people have much debased them Yet good Ministers with good people will be much esteemed to the World's end and when the chief Shepheard shall appear They shall receive a crown of glory which fadeth not away 1 Pet. 5.4 These were accounted as a distinct and eminent Order of Subjects as they were solemnly ordained The rest of the subjects and the Soveraign in respect of these have the name of Seculars and the Subjects are called Laicks or Lay-people This distinction is not so to be understood as though the rest of the people had nothing to do with Religion For they are bound to serve their God and seek Eternal Life which that they might attain this spiritual Office was ordained from Heaven And every
sanctified person is a Priest to offer spiritual Sacrifice to God. Yet this doth not make any such person a Minister and publick Officer of Christ who must sequester himself from worldly business more than other men to tend his Calling to which he is consecrated and solemnly devoted With this distinction agrees that of the Clergy and Laity Whence the name Clerus the Clergy for the Ministry should have its original is uncertain The people of Israel sanctified and consecrated unto God were call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Lot or Inheritance of God and the Priests and Ministers were the eminent party of this Lot and people For the people as distinct from the Pastours are called the Clergy Lot or Heritage of God 1 Pet. 5.3 in which it cannot be proper to the Ministers It 's true that the first Officer made by the Church after that Christ was glorified was made by Lot For the Lot that is Cleros fell upon Matthias Acts 1.26 From whence some think the system of Presbyters and Deacons were called the Clergy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signify one made and an Officer by Lot. As for Laity we find often in the Old Testament the people as distinct from the Priests and Levites called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Laity The Apostle and seventy Disciples were distinguished from the rest of the Disciples and Believers The Apostles Prophets Evangelists Pastours and Teachers were different orders from the rest of the Church The twenty four Elders which signifie the Priests and Levites divided into orders by Lot were distinct from the four Beasts that is the main body of the Church but these are days of confusion and disorder Every one will be a Prophet and a Teacher either presuming upon their gifts yet scorning to engage themselves for the service of Christ in the poor and much despised Ministery or pretending blasphemously to the Spirit which God never gave them There is another distinction of Subjects in Nobiles Plebaeos Some are Noble some of a lower Form and Rank Nobilis is any Gentleman well descended Yet there is a difference inter Nobilem Generosum for though Omnis Generosus sit Nobilis yet Omnis nobilis non est Generosus because Generosus is not only one well born but also one vertuous In this respect the word of a Gentleman is more than the word of a Nobleman nay than the word of a King yet Nobility with us is taken more strictly and is given to none under a Baron and Peer of the Kingdom which hath right of suffrage in Parliament as one of the House of Lords The ancient Nobility of England is much diminished and decayed and many of their Estates alienated and the late Barons created by Patent do much obscure them and if these as Barons have their suffrage in the House of Lords by vertue of their Honour and not their Vertue and Wisdom I do not see how the Parliament should be Wittena Gemott the Meeting of Wise Men. It were wisdom by some strict Law to limit Jus Nobilitandi unto Vertue and Wisdom For Honours should be conferred rarely and upon merit and worth for they have great priviledges which should not be made so common and prostituted to the Lust and Ambition of every one that can pay for them The subjects of lower Rank if Freeholders have also their priviledges and one principal is a power to Elect the Knights of the County to represent in Parliaments There be other accidental differences of less moment which I pass by section 14 After these distinctions follows a division of the whole body of the Subjects into parts and this is necessary especially in respect of the Administration For without an orderly division the subjects cannot be well governed Israel was divided into Tribes Tribes into Families Families into Housholds Housholds into Persons Thus they were divided and according to this order Achan was discovered Josh. 7.16 17 18. and they had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Heads of their Tribes and their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Heads of their Hundreds as Masius upon the place observes The Romans were also divided in Tribus Tribus in Curias and after these we read of Centurias and Decurias We read that Alfred divided England into Counties Counties into Hundreds the Hundreds into Allotments In some Counties we find Ridings and Wapentakes yet Sir Henry Spelman under the word Hundreds understands by Wapentake an Hundred which in the Welsh is called Cantreda where he adds that the Counties were divided into Tithings Rapes and Laths and Hundreds were divided into Tithings and Friberges Upon this division made it 's said that Justice was administred with that ease exactness and severity that any man's goods might at any time be secure in any place Yea they might hang golden Bracelets in the High-way-side and in open view and none durst meddle with them To this head belongs the numbring the people by pole enrowling their Names and Estates without which Taxations cannot be justly imposed The end of this distribution was to reduce the people into a certain order according to which the equal parts were to co-ordinate one with another as Counties with Counties Hundreds with Hundreds so that one had no Jurisdiction over another The unequal were less or greater and were subordinate the less to the greater which had Jurisdiction over the less and all the parts were subject to the whole This was necessary for Judicial proceedings that Actions in Law might proceed according to the subordination of Courts For anciently with us Actions did commence in the Courts held by the Lords of the Mannors if the cause were too high or could not there be determined or Justice had Appeal was made to the Hundred Court from thence to the County Court from thence to the King's Court. In the word Comitatus Sir Henry Spelman observes this was the ancient Order and thinks it an abuse and great disorder that in our days every petty Business and Cause is brought into the King's Court at Westminster What the Division of this Nation was under the Romans is not so well known except we may conjecture of it by the ancient Division of the Provinces and the Cathedral Seas and Diocesses which much differ from these of latter times Cambden finds some divisions of England in the time of the Romans yet they are not clear and certain Under the Saxons he finds several divisisions 1. Some according to certain proportions of Lands 2. He makes the Heptarchy an argument that it was divided into seven parts At length he concludes his political Division with that of Counties which he as Sir Henry Spelman ascribes to the King Alfred But I have read that it was thus divided before his time and this is more probable because the Myrrour informs us of Counties and of Counties before there were any Saxon Kings Vt subditi section 15 distinguuntur sic distincti dividuntur educantur