King cannot by his Fiat give it its factum esse till it be agreed on by the two Houses and because the two Houses by their agreeing on it do give it its fieri posse or make it ready and fit to be made a Law therefore it may truly though not properly be said to be made jointly by the King Lords and Commons because though it be not made by the Lords and Commons but by the King only yet it cannot be made without them neither that is without their doing something antecedently without their doing whereof the King cannot make Laws And this was that and all that which the late King meant when he said that the Laws of this Kingdom were made jointly by the King Lords and Commons that is according to the old Parliamentary stile by the King with the consent of the Lords and Commons or if you will by the King but not without the consent of the Lords and Commons But I hope Mr. Baxter who would be thought the Master of propriety and distinctness of speaking will not affirm that a thing can properly be said to be done by him or them without whose consent it cannot be done For I think it is one of the main matters wherein he differs or dissents from our Church that a Priest or Minister of the Word and Sacraments cannot be ordain'd without consent of the People will he therefore deny that it is the Bishop with his Presbyters that ordains him or will he say that he is jointly ordained by the Bishop and the People Certainly none but they that lay hands upon him have any thing to do in the Act of Ordination So that it doth not follow that because a Law cannot be made without the precedent consent of both Houses of Parliament that therefore they have any thing to do properly speaking in the making of it Again supposing Mr. Baxter is of the opinion of the Protestant Churches abroad that there can be no marriage without consent of Parents and supposing that opinion to be true yet I suppose neither Mr. Baxter nor any of the Ministers of those Churches will say that it is the consent of Parents that makes the Marriage though it cannot be a Marriage without it Many other Instances of the like nature might be given but this is enough to prove the thing we have in hand namely that though in some sence it may be said that our Laws are made by the King and Parliament or by the King Lords and Commons because they cannot be made by the King without the consent of the Lords and Commons yet properly speaking it is the King alone who by his LE ROY LE VEVLT makes them to be Laws in which Law-making Act of his neither of the Houses do joyn or are joyned with him and therefore the Laws so made cannot properly be said to be made by the King and them joyntly And yet because they cannot be made by the King without their antecedent consent to them and proposing of them they may truly be said to concur To the making though not In the making of them And this and no more but this was undoubtedly the late Kings meaning when he said the Laws were made here in England by the King Lords and Commons or upon their proposing such and such Bills being first agreed upon by them to be made Laws by him CHAP. XIV The making of Laws in the Roman State applied to Vs Mr. B. 's division of the Soveraignty rectified The King 's Negative voice asserted and the Enemies of Monarchy detected THus when the Soveraignty was in the People of Rome the Senate did concur to the making of Laws for the Common-wealth but did not make them they concur'd to the making of them by consulting and debating what was fit to be made a Law by the People as having no power to make it a Law themselves the making of Laws being an Act of Soveraignty and the Soveraignty being then not in the Senate but in the People and therefore the Senate did not so much as pretend to the making of Laws but only to the proposing of Laws to be made by a higher power namely that of the People as appears by the formal and solemn stile relating to the making of Laws in those times which was this Senatus rog at Populus jubet the Senate requesteth or proposeth namely such or such a thing to be made a Law but the People commands or enjoyns it that is the People maketh what was proposed by the Senate for a Law to be a Law And as this was the stile in relation to making of Laws in a Democracy when and where the Soveraignty was in the People so à paritate rationis upon the like reason and account in a Monarchy where the Soveraignty is in One the stile ought to be Populus rog at Rex jubet the People requests and the King grants And so indeed it was as I observed before according to the ancient stile used in our Parliaments here in England in divers Acts and Statutes wherein the King is said to give or grant sometimes at the special request and sometimes at the humble Petition of the Commons Neither doth the Alteration of the Stile at the Request to with the consent argue an alteration in the species of the Government for the King is still the sole Lawmaker or Lawgiver as much as he was before and consequently as much a Monarch though less Despotical and more Political in the managery and execution of his Kingly Power having by his Predecessors and his own voluntary and gracious condescension obliged himself not to exercise his Legislative power or to make any Laws without the consent of those that are to be governed by them which though it do not make him cease to be a Monarch or to have the Soveraignty or supreme power wholly and solely in himself yet it makes him cease to be an absolute arbitrary and despotical and to become a legal regulated and Political Monarch or a King that is to govern his People by Laws Laws indeed of his own making but not without their consent to them I mean without their consent by their Representatives in Parliament together with the consent of the Lords Spiritual and Temporal which all of them jointly are the Representatives of the three Estates or of that whole Body Politick whereof the King is the Head And as it is he that governs the whole Body so it is he that makes the Laws to govern the whole Body which because they are not made by the King without the consent of the three Estates representing that Body therefore Mr. Baxter thinks they are made by the three Estates as well as by the King and therefore that the Soveraignty is divided betwixt the King and them and consequently that this is no Monarchy but a mix'd Government which is the same mistake that Grotius as I said before
God nor from the fundamental Contracts of the Commonwealth he must mean where there are such fundamental contracts nor from any of his own publick promises nor to make Laws against God's Laws or the common good whereunto if he had added though he be free from being questioned or quarrelled with for it by his Subjects hitherto I could have been content to have gone with him in his Politicks but no farther for as to what he adds in his next and some other of his following Aphorisms as 1. That the same natural Person may be both Sovereign and Subject and that as Sovereign he may pardon others and as Subject he may be punished himself 2. That Sovereignty is divisible so that some part of it may be in the King and some part in others of the same Body Politick or as in his own words A mixt Commonwealth is that in which the other two or all three forms of a Commonwealth viz. Monarchy Aristocracy and Democracy are so conjunct that the Supremacy is divided among them sometimes equally and sometimes unequally 3. That it may be called a Monarchy where one hath not the sole Sovereignty and that England is such a Monarchy 4. That the Existence of the natural Person or Persons of Sovereigns or of such as have the Sovereignty is not necessary to the existence of a Commonwealth but the natural existence of Subjects is necessary So that there may be Subjects that are Subjects to no-body and consequently Subjects that are no Subjects or a Body without a Head which is really no body at all either in a natural or political capacity These and the like Assertions of Mr. Baxter I take not onely to be falsities but self contradictions and yet upon some of these absurd suppositions if not upon all of them he endeavours to justifie the late horrid Rebellion or as he calls it the late War against the King And upon the same grounds he may and consequentially dath horresâ—o referens I tremble at the thought of it the cutting off his head also For if he were not a Monarch but in name onely as Mr. Baxter saith he was not and therefore had but a part in the Sovereignty as Mr. Baxter saith he had not And if he that hath but a part of the Sovereignty be a Subject as well as a Sovereign as Mr. Baxter saith he is and as a Subject may be punished as Mr. Baxter saith he may why might not the Democratical Independents justifie what they did to him afterwards as well as the Aristocratical Presbyterians could justifie what they did to him before I mean their making War against him and their buying selling and imprisoning of him and taking away all that he had from him but his life onely and that in all probability they would have done also if he had not been taken away from them as he was by the Independents who had been their Servants untill then but then began to think of making themselves their Masters by getting the King's Person out of their power into their own but still proceeding upon the same Presbyterian Principles from the first to the last I mean upon the aforesaid Assertions of Mr. Baxter which are all of them inconsistent with the very being or essential Constitution of any Body Politick whatsoever For first there can be no Body Politick without some to govern as well as others to be governed and of those that govern ne detur processus ad infinitum That we may not run upon an endless errand one or more that are Sovereign or Supreme And therefore the Existence of the natural Person or Persons of Sovereigns or him or them that have the Sovereignty is as necessary to the Existence of a Commonwealth or any Body Politick as the natural existence of Subjects is Otherwise there might be Subjects which were Subjects to no-body and consequently no Subjects at all which is as absurd as to say there may be the Existence of a Body without the Existence of the Head of that Body which was one of Mr. Baxter's aforesaid Assertions Again in all Bodies Politick He or they that have the Sovereign Power are above all the rest of the body whereof they are Sovereigns and therefore cannot be Subject to any or all of them and if so then the same natural Person cannot be both a Sovereign and a Subject too which was another of Mr. Baxter's aforesaid Assertions Again if he that is a Sovereign cannot be a Subject as it is a contradiction in adjecto to say he can be then he cannot be questionable or punishable for any thing he does as Mr. Baxter saith he may be Again Sovereignty is a thing which is in its own nature indivisible so that in whomsoever it is it is Wholly and in whomsoever it is not wholly it is not at all and consequently cannot be divided either equally or unequally as Mr. Baxter likewise saith it may be Finally that it may be called a Monarchy where One hath not the sole Sovereignty is true because that which is not a Monarchy may be called a Monarchy but that it may truly be so called is false as it is false likewise that the Kingdom of England is such a Monarchy as Mr. Baxter in the last of his aforesaid Assertions saith it is But of the two last of these Particulars I shall have occasion to speak more at large when we come to examine whether the Body Politick of England be such a mixt Body Politick as Mr. Baxter saith it is and whether the Sovereignty thereof be not in the King alone but so divided as he affirms it to be betwixt the King and the Parliament upon which Supposition onely he justifies or presumes to justifie the late Rebellion to have been a just war against the late King Whereby it plainly appears that even in Mr. Baxter's own opinion where the Sovereignty is not divided but wholly in one and the same person as it is not onely in all Despotical but in all Kingdoms properly so called whether Despotical or Political or wholly in one and the same Coetus or Assembly whether Aristocratical or Democratical it ought not it cannot be resisted without shattering in pieces the very essential constituting parts of the Common-wealth by dividing the members from the head which is all that I am concerned to prove at present namely that Subjects resisting their Sovereign is inconsistent with the very being of a Body Politick of what Species or denomination soever it is CHAP. XVI Resistance inconsistent with peoples well being as proving the occasion of Civil War A case put by Grotius and several Instances proposed by him which seem to allow Resistance examined and cleared AGain suppose it were not Inconsistent with the Being yet if it be inconsistent with the Well-being of the Body Politick or Common-wealth for Subjects to resist or rise up in Arms against their Sovereign that is enough to prove
the Primitive Christians but to the Dictates of right Reason also I thought there would have been no need of saying any more to prove the late War here in England to be Unlawful because I took it for granted that it was a War made against the King and that our King was our only Sovereign and that those that made the War were but Subjects meer Subjects and no more than Subjects But Mr. Baxter tells us First That the late War was not made against the King Secondly That the King was not our Sovereign at least not our sole Sovereign And Thirdly That those that made the War were not meer Subjects but had their share in the Sovereignty and that in the chiefest part of the Sovereignty namely the Legislative power as well as the King had And upon these grounds he builds his Babel of confusion and of the solidity of these grounds he is so very confident that he saith he will confess himself to have been a Rebel nay a most perfidious Rebei and that he will offer his Head to Justice as a Rebel if these grounds of his can be solidly confuted Let us try therefore whether they be so impregnable as he presumes they are or no. I for my part am so far from thinking them to be so that they seem to me to have no solidity at all in any of them We will begin with the first viz. that the late War here in England was not a War against the King and therefore could not be a Rebellion The Consequence I confess to be good But how doth he prove the Antecedent why he proves the Antecedent namely that the War was not against the King because the Parliament declared it was not against the King but only against his evil Counsellors and his Delinquent Subjects that misled him and were his Enemies as well as the Commonwealths And it was upon this account saith Mr. Baxter that I served the Parliament nor do I know saith he that I ever fought against the King unless every one of the Kings Soldiers was a King or some one of them at least From which saying of his I observe by the way that Mr. Baxter himself in obedience to the Parliament did himself personally fight against the Kings Soldiers but not against the King unless some one of those Soldiers he fought against was the King as if no body can be said to fight against the King but one that hath a personal Combat or Duel with the King And perhaps the Parliament not thinking it time yet to speak out did hope to make the People believe that they made War against Delinquent Subjects only and not against the King because they did not as the King of Syria did command their General and his Officers to fight with neither small nor great but only with the King It is true the Parliament did not so but it is true too that they did not except the King from being fought with neither nor consequently from being kill'd For as Mr. Baxter saith it is to be suppos'd those that fight would kill those with whom they fight and then what might have become of the King if Mr. Baxter had hapned to encounter him when he was a fighting with other of his Soldiers But to let this pass as spoken of occasionally only Mr. Baxter tells us that he and those that engaged with him in the late War were obliged to believe the Parliaments Declaration that it was not a War against the King because the Parliament were not only the most competent Witnesses and Judges but the chosen Trustees of the Peoples Liberties But whom or what doth Mr. Baxter mean by such Parliaments as the People are obliged to believe surely not the King Lords and Commons which is the true notion of a Parliament no nor the Lords and Commons who both of them together are but the Body of a Parliament without a Head For the reason which he gives why they the People are obliged to believe them is because they are their chosen Trustees but so are the House of Commons only and not the Lords So that whatsoever the House of Commons declare or remonstrate unto the People is to be believed to be true and just and legal and the People to act accordingly and some there will always be that will do so For Example the House of Commons in the late Kings time Voted the Duke of Buckingham this Dukes Father to be an Enemy to the publick and therefore Felton thought himself obliged to kill him and did so and for no other reason but that only For being presently apprehended and ask't why he did it Look said he betwixt the Crown and Lining of my Hat and you shall find the reason why I thought my self bound in conscience to God and in duty to my King and Country to do it And there as he told them they should they found a Paper sticht to the inside of the Lining with the aforesaid Vote of the House of Commons written upon it And this was told me by a very credible Witness Sir Tho. Alisbury then one of the Masters of Requests but formerly Secretary for the Admiralty to the aforesaid Duke who was by when he was Murder'd and heard the aforesaid Examination of Felton and his justifying of what he had done upon that account of the aforesaid Vote of the House of Commons which was taken out of his Hat and seen and read by the aforesaid Sir Tho. Alisbury I have repeated the Story of this matter of fact the rather because there have been of late divers such Votes passed in the House of Commons against several Persons of eminent Quality and Dignity who were all of them to be supposed to be innocent until they were proved to be guilty and yet before any such proof made or any proceeding against them per legem terrae or according to the Law of the Land as some of them were so all of the like quality that is all the Nobility may be condemned by a Major party of a House of Commons as Enemies to the Commonwealth or of King and Kingdom and according to Mr. Baxter's Doctrine must by the People be believed to be so and consequently they that are so Voted how many how great and how innocent soever they are they are to be exposed to have their throats cut by any Fanatical Zealot or which is worse to be torn in pieces by the inraged Rabble as the two Dewitts were lately in Holland and as Dr. Lamb was in London in the Reign of King James For it is but giving of the Word in such a season and down goes that Voted or rather that Devoted Person and is knock'd on the head before he can open his mouth to speak for himself when perhaps he is not the Man they took him for neither What is become in the mean time of Magna Charta
under the People and then the Sovereignty is wholly in the People and none of it in the King what Power or Authority soever is delegated unto him by the People especially if it be delegated sub conditione paenâ conditionally and upon penalty of forfeiture or any other punishment or else the Populus that is all or the whole body of the People doth subesse Regi is under the King and then the Sovereignty is wholly in the King what priviledges or immunities soever he may grant to all or any of his Subjects or however he may oblige himself by promise or oath to govern them according to the Laws of his own or Predecessors making So that the Sovereignty must either be Wholly in the People and then he that is called a King is indeed no King or it must be Wholly in the King and then the People have nothing to do with it or with any part of it Sovereignty being such a thing in the Body Politick as the Soul is in the Body Natural For as the Soul animates or enlivens the whole Body Natural not by being some of it or some part of it in one member and some part of it in another but by being as the Philosopher saith it is tota in toto tota in quâlibet parie by being all of it in all and in every one of the members according to their several capacities of receiving the several influences and operations of it in order to the preservation of the whole Body Natural so Sovereignty or the supreme Power wheresoever or in whomsoever it is it is that which animates and enlivens and actuates the whole Body Politick but not by being it self divided but by dividing and deriving its influences into all and every part of the whole Body Politick as the Sun doth its light by the dispersing of its beams or heat into and over the whole World and all the several parts of it though it self in the mean time remains wholly and entirely in its own Orb. CHAP. IX Grotius his Case hath no place in the English Monarchy where the King is sole Sovereign The Parliament never declared otherwise as Mr. B. saith they did but owned him ever to be so in their Addresses Sovereignty intitles to Majesty BUT supposing though not granting there may be and hath been somewhere or other such a division of the Sovereignty betwixt King and People as Grotius supposeth yet it is certain there is none such here in England for if ENGLAND be a Monarchy then saith Mr. Baxter himself the whole Sovereignty must be but in One only and if but in one I hope by that One he means the King and not the Pope though some of his Parasites will have him to be the Monarch of the whole Christian World in general and though he lays claim to the Monarchy of England in particular as held in Fee of him ever since King John surrendred the Sovereignty thereof to his Holiness But Mr. Baxter I am sure is not so much a Papist though in some especially of their Political opinions he doth symbolize with them as to acknowledg the Pope to be his Sovereign for then neither he nor his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 those that are like-minded could be as they fain would be every one a Pope in his own Parish neither do I think he is yet so far gone in Fanaticism as that by the King whom he grants to be the sole Sovereign in a Monarchy he meaneth no other King but King Jesus as the fifth Monarchy-men do here in England and the Presbyterian Whigs do in Scotland No I do willingly absolve Mr. Baxter from being guilty of either of these extravagant absurdities but that which I charge Mr. Baxter with is this that he denies England to be a Monarchy and consequently that the whole Sovereignty thereof is in the King though he himself hath sworn it is so when he took the Oath of Supremacy as I am sure he did or ought to have done when he was Episcopally Ordained as he saith he was but it seems he hath better studied the point since or is more enlightned than he was then Or perhaps the Parliament had not then or he had not heard they had declared this Government of ours to be no Monarchy but a mixed Government because the Sovereignty was not in the King alone but in the King and Parliament that is partly in the King and partly in themselves But when and what these Parliaments were or how and when and to whom they made such a Declaration he doth not vouchsafe to tell us which is an uncivil neglect of his Readers if he can and an impudent slandering of the King and both Houses of Parliament if he cannot I say of the King and both Houses of Parliament because it is the King and both Houses that constitutea Parliament the King as the Head and the two Houses as the representative Body of the People and he may as well and as properly call that Corpus integrum or a compleat Body that hath no Head as call either or both of the Houses a Parliament without the King Now I would fain learn of Mr. Baxter when any Parliament properly so called that is the King Lords and Commons did ever declare this Kingdom to be no Monarchy or that the Sovereignty or supreme Power was not wholly in the King Nay taking the two Houses without the King or a Commissioner for the King to be a Parliament as after the King left them or rather after they had driven the King away from them they falsly pretended themselves to be taking I say the Parliament in this notion for the two Houses only without the King did ever the two Houses declare the Government of England according to the legal constitution of it to be no Monarchy or that the Sovereignty or supreme Power was not in the King I confess I never heard they did so I mean by any conjunct Declaration or by any concurring Vote of both Houses no nor so much as by the single Vote of the House of Commons which being but one and the lower of the two Houses and who are always uncovered at their Conferences with the Lords are very often by Mr. Baxter called the Parliament because as he saith they are the Representatives or Trustees of the People of England whereas indeed they are the Representatives and Trustees not of the People but of the Commons of England only unless he will say that the Nobility and Clergy or at least the Lords Spiritual and Temporal are none of the People of England for surely they are not represented by the House of Commons And therefore if Mr. Baxter were to speak of it in Latin I think he would not I am sure he should not call it by the name of Domus Populi the House of the People but Domus Plebis the House of the Commonalty or as I think
relation to the Church and such are his Anti-monarchical Aphorisms in relation to the State which will be Thorns in the sides of both Church and State to trouble and molest them if they be not Engines to undermine or overthrow them as long as there be Baxterians in the World as there will be no doubt long after Mr. Baxter is dead and though he himself before he dies do truly and heartily as I do truly and heartily wish he may if he have not done it yet repent of having been the Author of some and Abetter of all of them As for his Anti-episcopal Aphorisms and all other his Heterodoxies relating to the established Government Discipline of the Church they have been so thoroughly canvassed and so thoroughly confuted by so many much more learned Pens than mine that as I have said already in my Preface so I say again I mean not to meddle with any of them But as for his Anti-monarchical Aphorisms because he saith I am a defier of Deity and Humanity for taking exceptions against them and for my justifying the rights of Kings against the grounds he lays for justifying the resisting of Kings by their Subjects and particularly of the late horrid Rebellion of the worst of Subjects against the best of Kings the most groundless in its causes and the most unchristian and the most inhumane in its effects that ever was in this or perhaps in any other Kingdom I thought my self concerned to enlarge my self in saying of what I have said to justifie my exceptions against those Aphorisms some of which I have before printed and now reprinted and could have printed many more and some of them as bad as the worst of those and as destructive of the established Government in all Bodies Politick especially to that of this in our Kingdom which is and hath been always taken for a Kingdom properly so called that is for a Monarchy or for such a State or Body Politick wherein the Soveraignty or Supremacy of power is in One only Mr. Baxter in order to justifying of the late Rebellion tells us it is no Monarchy because the Soveraignty is not in one only namely not in the King alone but divided betwixt the King and the two Houses of Parliament which he endeavours to prove First by the Testimony of both Parties principally concerned in it namely the Parliaments affirming and the King 's owning and acknowledging of it And 2dly by Reason or by Arguments drawn from the Constitution and Practice of the Government it self As to the King 's own Acknowledgment that there is such a division of the Soveraignty betwixt Him and the Lords and Commons I shall speak of it hereafter And as to the Parliaments affirming of it which he only saith they do and have done without naming any time when or what Parliaments they were that did so I have answered at large already and that not only negatively by denying that any Parliament properly so called that is consisting of King Lords and Commons did ever affirm or can in reason be supposed ever to have affirmed any such thing but positively also that all Parliaments even those that are improperly so called I mean the Body without the Head or as the two Houses only are called the Parliament even in this notion I say the Parliament hath always in all Addresses that have been made to the King by either of the Houses severally or by both Houses joyntly acknowledged the King to be their Soveraign and themselves to be his humble and loyal Subjects and that when they Address themselves to Him not as so many several single Persons or every one in his Personal capacity but as in their representative or Parliamentary capacity as they were one or both of the two Houses and how they be Soveraigns and Subjects or partly Soveraigns and partly Subjects in one and the same notion or under one and the same capacity is too subtil and airy a speculation for me to comprehend But that which I did then and do now principally insist upon for proof of the Parliaments acknowledgments of the King's Soveraignty or that the Soveraignty here in this Kingdom is in the King alone and not in the King Lords and Commons joyntly as Mr. Baxter would have it is the Oath of Supremacy whereby in as positive and as plain words as can be devised several Parliaments properly so called have declared and caused it to be sworn that the King is the only Supreme Governor of this Realm and of all other his Highnesses Dominions and Countries as well in all Spiritual and Ecclesiastical things and causes as Temporal Which I repeat again because which I did not observe before the Parliament by enjoyning Men to swear that the King is the only Supreme Governour in Spirituals as well as Temporals seems to suppose or to take it for granted that there were none that pretended to be the Kings Subjects but would willingly and readily acknowledg the King to be the only Supreme Governour in Temporals and consequently that there is no division of the Soveraignty betwixt the King and the Parliament or betwixt the King Lords and Commons For it is the Soveraignty in Temporals only that Mr. Baxter would have to be so divided for as to the Soveraignty in Ecclesiastical things or causes I believe if Mr. Baxter would tell us what lies at the bottom of his heart we should find that he thinks neither King nor Parliament have any thing to do with it and consequently that there can be no division of that betwixt them But of this we shall have occasion to speak more hereafter Now therefore having postponed the consideration of what Mr. Baxter infers for proof of his pretended Division of the Soveraignty betwixt the King and Parliament from the Kings own concessions I proceed to the examination of the Reasons he gives to prove this Kingdom to be no Monarchy or that the Soveraignty thereof is not in one only Which reasons of his are all of them reducible to this one of the Legislative power or the power of making and repealing Laws for the whole Nation which as he saith is not only a part but a principal part of the Soveraignty and therefore if this be not in the King alone but divided between the King and Parliament as Mr. Baxter saith it is the Soveraignty cannot be in the King alone but must be divided betwixt the King and Parliament CHAP. II. What is meant by the word Parliament The two Houses being called together and dismissed at the Kings pleasure are not co-ordinate or sharers with him in the Soveraignty NOW this being the summ and substance of all Mr. Baxter hath said to prove the War made by the Parliament against the King was a just War and no Rebellion and whereon he so confidently relies that he is ready he saith to offer his Head to Justice if it can be solidly confuted either as to
the Truth of it or as to the Inference he makes from it we will therefore examine First whether the Hypothesis namely that the Legislative Power is divided betwixt the King and the Parliament be true or no. And 2dly supposing not granting it to be so whether he doth rightly infer from thence that therefore the War made by the Parliament against the King was a just War and no Rebellion First then as to the Hypothesis it self so far as it supposeth the Legislative Power to be a part and principal part of the Soveraignty I grant it to be true but as it supposeth the Legislative power to be partly in the King and partly in the Parliament so as that the Laws are made by the Parliament as well as by the King I affirm it to be false For proving of which Assertion of mine and consequently for disproving the contrary Assertion of Mr. Baxters We are first to agree what is meant by the word Parliament 2dly How that which is meant by the word Parliament comes to be a Parliament or whence it hath its being what it is and its meeting when it does meet and its continuance after they are met 3dly What they do or legally can do in order to Law-making whilst they sit First then as to what is meant by the word Parliament in this Hypothesis it cannot be the King Lords and Commons because the Legislative power which is supposed to be divided betwixt the King and the Parliament cannot be supposed to be divided betwixt the King and the King as it must be if it be divided betwixt the King and the Parliament as the Parliament signifies the King Lords and Commons and therefore by the word Parliament here must needs be meant the Lords and Commons only or the two Houses as they make up that Body whereof the King is the Head And in this sence the word Parliament is always taken when the King and Parliament are spoken of together as distinct from one another as when the King is said to call or prorogue or dissolve the Parliament or the Parliament to make Addresses or to grant Subsidies to the King And in this sence I think Mr. Baxter would be thought to understand the word Parliament when he saith the Legislative power is divided betwixt the King and Parliament that is betwixt the King and the two Houses of Parliament Though there be many passages in this Book of his Holy Common-Wealth where speaking of the Parliament he must needs mean the House of Commons exclusively to the House of Lords as when he tells us the Parliament is to be believed by the People because they are the Peoples Representatives and Trustees where by Parliament must needs be meant the House of Commons only they and not the House of Lords being the Representatives and the Trustees of the Commons And so again when he saith the King is obliged to pass such Laws quas Vulgus elegerit which the People or Commonalty shall make choice of he must needs mean that the King must needs pass such Laws as the House of Commons will have him to pass so that the whole Legislative power is to be in the House of Commons alone exclusively to the Lords as well as to the King and to the King as well as to the Lords the King being only to declare that to be Law which the House of Commons without the concurrence of the Lords had voted to be so and this we saw and felt it come to at last and that it may not come to it again for it seems to be furiously driving that way it concerns the Lords as well as the King to consider But I will not in this debate take advantage of this notion of a Parliament I mean as it is often taken by Mr. Baxter for the House of Commons only but I will consider it as it is taken for both Houses and that not only severally but as in conjunction with one another And as thus considered the next Inquiry is how they come to be so or whence they have their Parliamentary existence and continuance I mean their being and continuing to be two Houses of Parliament and consequently whence they have the power of doing what they do or legally can do whilst they are two Houses If the Lords Temporal say they are of the Lords House by their Birth-rights because they are Lords and the Lords Spiritual say they are of the House of Lords because they are Representatives of the Clergy or because they are Bishops I answer it is true indeed they are so or have a right to be so when there is a House of Lords because they are constituting parts or members of it but neither of them can be actually and existingly of the House of Lords before there is a House of Lords and there is not nor cannot be actually a House of Lords or any existence of such an House until the King summons both the Lords Temporal and the Lords Spiritual to come and meet together at such a time in such a place and when upon such a summons or by virtue of the King's command they do come and meet together at such a time in such a place appointed and then and not till then they are a House of Lords The like may be said as to the House of Commons For if the Knights and Burgesses shall say when they are met that they are the House of Commons because they are chosen by the People to be their Representatives 't is true they are so but who gave the People leave or power to choose them to be their Representatives or to be that Body which we call the House of Commons Was it not the King could the People have done it without the King's Authority inabling them to do it or could they refuse to do it when he commanded them to do it If not then though the choice of those that are to be of the House of Commons be from the People yet the Peoples power to choose them being from the King it is that which makes them after they are chosen to be the House of Commons when they meet together which must be when and where the King pleaseth So that after they be chosen by the People to be the House of Commons or to be the representative body of the People yet are they not the House of Commons nor the representative body of the People till they meet at the time and in the place by the King appointed at least so many of them as are agreed on to be sufficient to make them act as a House or in their representative capacity The like in proportion may be said of the House of Lords also So that both Houses of Parliament as such have no existence or being at all until the King gives it them by calling them together nor continuance in being any longer than he pleaseth to continue them For
themselves as Mr. Baxter calls it as either they are more venerable for Antiquity or considerable for Plurality the King and none but the King must be acknowledged to be the Enacter or the maker of them And truly one would think that those Laws that are most ancient and consequently nearest in time to the first Institution of Parliaments though they were not the most in number were most to be credited for speaking most properly of who they were that made them then and consequently who it is that makes them now Unless Mr. Baxter will say it was the King and King alone indeed that made the Laws in Parliament then but it is the King Lords and Commons or the King and Parliament that makes them now and consequently that the King is not so much a King now as He was then and that the constitution of the Kingdom it self is changed from Monarchical to Aristocratical But then I must ask him by whom and when this great change was made Was it by him that brought in this new stile of Be it enacted by the King Lords and Commons c. That was Hen. the VIII who was not a Man likely to give away any of his Authority or to part with any part of his Soveraignty to his own Subjects who rescued it from the Popes incroachments And yet perhaps even He meaning to make use of the Parliament for the countenancing whatever he had a mind to do though never so extravagant in it self though never so offensive to Foreign Princes his Allies or never so injurious to his own Children because he thought it would be serviceable to his own ends after he had forced the two Houses to consent to what he listed to enact to joyn them with himself in the enacting of it as well as by assenting to it to make it so much the more plausible or at least so much the less grievous unto the People Otherwise it is most certain that never any King of England after the making of Magna Charta reigned so despotically and arbitrarily as he did or whom the two Houses of Parliament stood so much in awe of as they did of Him as appears by his making them consent to the doing and undoing to the enacting and repealing of whatsoever he would have to be done or undone to be enacted or repealed And therefore it is not to be imagined that such a King as he was did mean by changing of the stile to lessen the Legislative Power it self which was in his Predecessors by admitting those whom he used as he did the two Houses of Parliament to a participation of any the least degree of Soveraignty And as he never meant to do so so they the two Houses of Parliament did not then or ever since for ought I ever heard understand that to be the meaning of the Alteration from Be it enacted by the King with the consent of the Lords and Commons to Be it enacted by the King Lords and Commons to signifie that either the Kings power as to the making of Laws was less or the Parliaments greater than it was before this alteration of stile For if it had been understood either by the King or Parliament to signifie any such thing as the King especially such a King as Hen. VIII was would never have suffered the alteration of the former to the latter So the two Houses who are jealous enough of their Power and Priviledges would never have suffered the alteration of the latter to the former again as it was altered by King Edward Queen Mary and Queen Elizabeth King Henry's three immediate Successors and as it is altered by our present King in the Act of Vniformity For as the alteration of the former to the latter could not have been made without the Kings so the alteration of the latter to the former could not have been made without the consent of the two Houses neither And therefore I verily believe that if any thing at all was meant by the alteration of the former stile to the latter it was only ad faciendum Populum to gain the People that the People might more willingly receive and submit to the Laws when they were made especially such of them as might seem to pinch them in their Purses when they were said to be enacted by the Lords and Commons or by the Lords and their Representatives and consequently by themselves as well as by the King for Volentibus non fit injuria where there is consent there is no injury And yet again lest by this alteration of stile and misinterpretation of it the Kings Prerogative of being the sole Soveraign and consequently the sole Law giver might be thought to be diminished by being communicated to either or both Houses of Parliament therefore the first most ancient and withal the longest continued stile of Be it enacted by our Soveraign Lord the King by the advice and with the consent of the Lords and Commons in Parliament assembled was presently after the first alteration of it resumed by the three next succeeding Princes as it hath been also now of late by our present Soveraign and by all of them with the consent of the Lords and Commons thereunto CHAP. VII The Laws enacted by the Authority of Parliament in what sense Why called Acts of Parliament They provide the Matter of the Laws the King gives the Form BUT withal will Mr. Baxter perhaps say with this Addition and by the Authority of the same that is by the Authority of the Parliament so that according to this former stile our Laws are said to be made and enacted by the Authority of the Parliament and consequently by the Authority of the two Houses of Lords and Commons as well as by the Kings For answer whereunto I might say in the first place that it was not till after 200. Years from the first Parliament that we read of in our Book of Statutes namely not until the Raign of Henry the VI. who owed his Title such as it was to the Parliament and to the Parliament as it signifies the two Houses only without the King for by the Authority of such a Parliament it was that is of a Body without a Head that Henry Bullingbrook was made King Richard the Second's surrender being neither voluntary nor lawful if it had been voluntary as was acknowledged by the two Houses themselves when Richard Duke of York claimed the Crown as the right Heir to it thereby acknowledging likewise that although they had de facto yet they could not de jure exclude the right Heir Howsoever their Authority being the only Title which the then present King had and held the Crown by as having not the courage either of his Grandfather or his Father to claim it by Conquest and hold it by force as they did He was willing to acknowledge he held it by Authority of Parliament as the word Parliament is taken for the two
Houses of Parliament without a King And this perhaps might be the reason why at first in that weak King's time to Be it enacted by the King with the consent of Lords and Commons in Parliament assembled was added and by the Authority of the same But this is not the Answer I rely on because this addition hath been continued ever since whereas the alteration I before spoke of did not as I have already showed And therefore 2dly to this Objection that when it is said Be it enacted by our Soveraign Lord the King by the advice and with the consent of the King Lords and Commons in Parliament assembled it is said also and by Authority of the same My Answer is that by the word Parliament is not meant the two Houses or the Lords and Commons only that is the Body without a Head but the Body with the Head to direct and govern it as the natural Head doth the Body natural and more than so for the natural Head though it directs and governs yet it doth not give its Being to the Body natural but the Parliamentary Head gives its very Being it self to the Parliamentary body as being made what it is by his Call and dissolved into what it was at his pleasure that is into so many single and private Persons as they were before as I have already shewed And truly if we mark the words well By the Authority of the same cannot be meant the Authority of those that are assembled in Parliament but of the Parliament it self wherein they are assembled which is as it is commonly truly and properly called the Kings great Council or the Kings High Court of Parliament It is by the Authority therefore of that great Council or by the Authority of that High Court that our Laws are said to be enacted But whence is it that this great Council or this High Court hath its Authority Is it not from the King Is it not from Him that makes them to be such a Council and makes them to be such a Court by his calling and assembling them together So that to say Be it enacted by the Authority of the Parliament is no more in effect than to say Be it enacted by the King in Parliament or Be it enacted by the Kings Authority in his great Council or in his High Court of Parliament For as all Inferiour Courts are and Act by the Kings Authority so is and doth the High Court of Parliament it self also for as it doth not nor cannot make it self no more than the Inferiour Courts do or can for if it did or could it might meet as often and subsist as long as they listed themselves so their acting when they are a Court is as the Actings of other Courts are if they Act as they ought to Act in and by the same Authority from whence they have their Being for Agere sequitur esse acting follows upon being as Mr. Baxter often but sometimes very impertinently tells us And therefore as in all other Courts because they are the Kings Courts the Judgments that are there given and the Decrees that are there decreed for interpreting applying and moderating of Laws already made are the Kings Decrees and the Kings Judgments because they are made by his Authority or by an Authority derived from him and delegated by Him and might if he pleased be executed by him in Person as some of them have been by some of his Predecessors so in the High Court of Parliament where Laws are to be made the Laws that are there made are the Kings Laws and that not only as being made in one of his Courts but made in a formal and solemn manner either by himself personally and immediately or by special Commission granted and authoriz'd by him to do it for him For it is the Le Roy le veult whether pronounced by himself or by any other authoriz'd by him that makes the Law So that it is the Kings Will and the King 's will only to have it a Law that makes it a Law and not any Act antecedent or subsequent of either or both the Houses of Parliament But why then are our Laws called Acts of Parliament Because as I said before they are made by the King in Parliament Yea but they are said to be Enacted by Authority of Parliament that is say I by the King's Authority in Parliament But they are said to be enacted by the Lords and Commons as well as by the King but it is not said they are enacted by the Authority of the Lords and Commons as well as by the Kings So that by enacting by Lords and Commons is meant by the Lords and Commons advising or consenting to the matter of them as appears by the indifferent use sometimes of one of the forms and sometimes of the other as I observed before Whereunto may be added that it is not unusual to ascribe the doing of a thing to Him or them that are but the advisers of it or consenters to it Thus we call that an Order of Council which is ordered by the King in Council or by the advice of his Council And thus St. Paul saith The Saints shall judge the World and Christ himself saith that his twelve Apostles shall sit upon twelve Thrones judging the twelve Tribes of Israel Yet it is certain as Christ tells us in another place that the Father hath committed all judgment to the Son and hath joyned none in Commission with him So that it is Christ and Christ done that shall absolve those that shall be absolved and shall condemn those that shall be condemned which are the proper Acts of a Judge quatenus as he is a Judge and therefore of none but him that is a Judge How then can the Saints be said to judge the World or the twelve Apostles be said to judge the twelve Tribes Why they do it by consenting to and approving of the judgment which shall be given by Christ whether it be the sentence of absolution or condemnation upon whomsoever it is pronounced So though it be the King and the King only that properly speaking doth make the Laws yet because he never makes any Laws but such as are agreed on and consented to by both Houses of Parliament therefore the two Houses of Parliament may in the same sence that the Saints are said to judge the World be said to make our Laws that is by consenting to the King 's making of them to be Laws But yet with this difference which is indeed no small one that Christ's judging of the World needs not the approbation or consent to it antecedently or consequently either of Saints or Angels but the King according to the legally established constitution of our Government cannot make a Law but the matter of it must be antecedently agreed on by both Houses of Parliament as a fit subject for the King to make a
forbid the Christians to resist did wish the whole body of the Roman people had but one head that he might cut it off at one blow and another of them had set the capital City of his Empire on fire commanding his Souldiers to kill all the Citizens that endeavoured to quench the burning of their Houses he himself in the mean while playing upon an Instrument all the time it was a burning Neither will I insist upon the Judgment and Practice of the Primitive Christians who though they knew their Sovereigns the Heathen Emperours had professed they would and really did what they could to destroy all their Christian Subjects yet the Christians did not think that either this profession or practice of their Sovereigns which was an evident and undeniable demonstration of their implacable hatred against them was sufficient to dispense with them for resisting of or for defending themselves against them as was notably exemplified by what was done and suffered by Mauritius and his Legion according to that Heroical story before recited But I will not insist I say upon any Argument drawn from any religious Topick to justifie my denial of any exception to be made to the general Rule of non-resisting of Sovereigns by their Subjects or for dispensing with Subjects to resist their Sovereigns in any case whatsoever though possibly there may be such a Case as Barclay and Grotius out of Barclay puts even among Christians But that which I insist on at present is this that abstracting from the consideration of what God hath either commanded or forbidden in his Word as likewise from the consideration of Heaven or Hell or of any other life after this where men are to be rewarded or punished for what they have done here it is not onely prudent and convenient but absolutely necessary to the peace and welfare and safety and happiness of all mankind here in this world that men should be taught and believe that the resisting of Sovereigns by their Subjects is always and utterly unlawfull in any case whatsoever yea though possibly such might be the Case as that they would all be destroyed if they did not resist and that for these reasons First Because it is not onely very improbable but as Grotius himself saith scarcely credible there should ever be any such Case Secondly Because according to a Maxime of our own Law A mischief is better than an inconvenience that is as I conceive it is better for a State to run the hazard of a greater future evil which may either not happen at all or if at all very rarely than for the avoiding of it to admit or submit to a lesser whereunto it may always and must very often be obnoxious Thirdly Because if it be allowed to be lawfull for Subjects to resist their Sovereign in such a Case as Grotius puts or in any other case whatsoever it will be always and altogether as dangerous both to Prince and People as if it were granted in never so many other cases also because that one may alway be pretended to be the present case and the People may be always made to believe it is so though it be never so improbable to be so As may appear by divers Examples besides those I have already quoted out of Scripture especially that of David who though he was the best of Kings that Nation ever had yet his Son Absalom made the People believe that he neglected to doe them justice in hearing their complaints and redressing their grievances and thereby stole away their hearts from his Father saith the Text and made them to rebell against him But to instance in one Example or two more nearer home and nearer our own times It is not long since the Princes of the House of Lorrain I mean the Guises being excluded by Henry the Third of France from the chief managery of affairs which they formerly had in that Kingdom resolved to gain that by force which they could not keep by the King's favour and to that end to stir up the People under some publick and plausible pretence to joyn with them in a rebellion against the King But what that pretence should be which the People should be baited withall being debated by the chief of the Faction and some being of one mind and some of another Henry Duke of Guise being head of the whole party stood up and said What need is there of any debate or consultation as to this particular can there be a better or more plausible or more efficacious Motive to stir up the People to joyn with us against the King than to make them believe the Catholick Religion is in danger and that the King is not onely a favourer of the Hugonotts but a Hugonott himself in his heart and therefore that it is absolutely necessary for all good Catholicks to joyn in an Association or Holy League for the defence of the Catholick Faith and to oppose the bringing in of Hugonott Heresie against all persons of all conditions whatsoever and consequently the King himself It was easily agreed to by all the rest of the Conspiratours that this was a very plausible pretence indeed but withall so incredible as to the King 's particular as that it would not be very difficult onely but impossible to make the People believe it and consequently to make them rise up against the King upon that account it being generally known and believed that that King was as Bigott or zealous a Roman Catholick as any was in France having been himself not a Spectatour onely but an Actour also in the Massacre of the Hugonotts at Paris not long before and was still such a Devote that he was never almost seen in publick but betwixt two Capuchins with a Crucifix in his hand and his Beads at his girdle Whereunto the Duke of Guise replied laughing Let me alone said he with the managing of that part of the affair I will undertake within one month by those I will set on work meaning the Jesuits the Friars and other Popular Preachers to make the King to be believed over all France to be as arrant a Hugonott as any in Geneva And so he did whereupon that Rebellious Association which by its Godfather the Pope was called the Holy League was made against the King and as bloudy a War as ever was in France was raised and maintained by it neither did it end with the death of the King who was murthered by a Jacobin Friar but continued against his Successour upon the same pretence and with the same intentions the deluded People in the mean time being made to believe by their Ghostly Fathers that it was God's Cause they fought for and that those that died or were killed in it were sure to go immediately and directly to Heaven without dropping into Purgatory by the way Another Example of the same kind we had here of late amongst Our selves that is of the Peoples being stirred up by