them Laws by giving them an obliging power The King alone our Lawmaker Dr. Sandersons judgment in the case His Commendation for an excellent Casuist 1 Ep. Tim. Cap. 4. v. 3. The design of Mr. B. 's Holy Common-wealth He intitles the Vsurpers to the whole Soveraignty By the King 's having lost his part Vid. H. C. Thes. 145. 363. Thes. 368. And this too against a Thesis of his own Thes. 374. Mr. B. 's Thesis further examined Who in Mr. B. 's account the best Governours in all the World See the Preface to the Holy Common-wealth Whom yet he owns to be Intruders and Vsurpers II. C. p. 86. Thesis 375. His strange shuffling and self-contradiction A short account of those Vsurpers Mr. B. 's flattery to Oliver His compliance with Richard Three Remarks upon it His Eulogy of the Vsurpers * Pref. to Holy Com. W. Mr. B. rebuked for his Extravagance and his best Governors challeng'd All that slaid and sate in Parliament not censured The Recapitulation of the Legislative power being only in the King An Objection Mr. B. 's opinion that a Soveraign though limited by compact may act for the Peoples safety against their consent And why not make Laws then for that end without their consent His reason for that opinion v. p. 119. Thes. 120. The Answer according to that Opinion Ship-Money justified upon Mr. B. 's grounds The Bishop's own answer Though Laws are not made without the Peoples consent in Parliament yet that consent doth not make them Laws Ordinances of themselves not Laws The King's Assent gives being to the Laws How the two Houses concur to the making of Laws The matter of the Laws from the Parliament the Form from the King Why the Laws said to be enacted by King Lords Commons The Modern stile of enacting Laws H. C. p. 46â— The Antient stile or form When the change began The Old stile resumed afterward Mr. B. 's Argument for the Legislative power in the Parliament from the Preface of our Laws unconclusive Holy Com. p. 462. All the Ancient and several Modern Instances against him Why Henry the VIII changed the Old stile His meaning in it could not be to part with any of his Soveraignty Nor was it so understood by either King or Parliament Most likely it was to please the People Why the Old stile resumed since An Objection Those words And by the Authority of the same when added and why The Answer By Parliament here meant not Lords Commons only without the King What meant by the Authority of the same The Parliament the King 's great Council and High Court. Their Authority from the King They act in that respect as other Courts do Why our Laws called the King's Laws Why called Acts of Parliament Advice or consent sometimes intitles to the Act. 1 Cor. 6. 2. Matth. 19. 28. Joh. 5. 22. The Saints judging the World applied to this case The difference in the Case The four Causes of our Laws viz. Efficient Matter Form and End of them explain'd What kind of Cause the Consent of the two Houses is The Legislative power and the Soveraignty in the King only Two Conclusions of Mr. B. 's upon his supposition of the Soveraignty divided The Eastern Monarchs not altogether Arbitrary What it is denominates a Monarchy No Judicatory above the King The Parliament no such Judicatory The King can do no wrong how meant Another Maxime to that purpose King David accountable to God alone and punished by him David 's Monition to Kings The Peoples priviledge of consenting to their Laws a favour at first of the Kings William the Conqueror made Laws without their consent Parliament first so called in Henry I. time An antecedent compact of the People with the King a political whimsie of Mr. B ' s. Mr. Hobbs and Mr. Baxter agree The extreme unlikelihood of the supposition Our Government at first arbitrary T is likely the Custom of not making Laws without the Peoples consent began under Henry I. with that other of not raising Mony without their consent However it was it was not by Compact but by Grant Mr. B. 's vain and false distinction of two capacities in the People as Free and as Subjects H. C. p. 459. H. C. p. 458. Some Rights he saith reserved by the People in their Contract and the Parliament their Trustees Government not alway founded upon Contract as Mr. B. saith it is A free People as well as a free Man may give up themselves to be govern'd without any reservation of Rights Several free People have done so Grotius de jure Belli ac pacis Particularly in our Government no such thing as Contract or Reservation off Rights The Peoples Rights not by bargain but by Grants of their Kings The People had no Representatives till Henry I. Vid. Daniel's Hist. Baker's Chron. Mr. B. 's supposition a meer fiction The Priviledges and Representatives the People now have are not by any antecedent Compact The Peoples being represented in a double capacity as Mr. B. fancies made an Argument by him to justifie the late Rebellion Holy Com. W. H. C. Thes. 361. The King's Coronation Oath doth not prove any such compact or Reserves c. as Mr. B. affirms This made out in three Considerations Mr. B. makes the King a King in name only He hath no authentick Record for such a Contract as he supposeth Holy Com. W. p. 377. H. C. p. 468. Nor for the Parliaments being the Peoples Trustees for their reserved Rights Were the Original constitution such as Mr. B. makes it the King would not be sole Soveraign nor Soveraign at all A brief account of the Government and its changes during the Vsurpation till the Kings Return A serious Expostulation with people for their uneasiness Numb c. 14. v. 4. No reason for it The pretended ground of it The ill effect of causless fears The Constitution of our Government The Subjects Rights and Priviledges Their representatives in Parliament The duty of those Representatives How to act as Trustees also An even Balance to be kept betwixt Prerogative and Priviledge The King compared to a Father and a Husband Two observations of Grotius De jure Belli Pacis cap. 3. p. 81. lb. p. 83. Applied to Mr. B's main principle How it came that Laws are not to be made without a Parliament When our Monarchy began to be Political Yet still a Monarchy A mistake in Polybius Grotius de jure Belli pacis lib. 1. cap. 3. Sect. 19. We are to judge of a Government not by the Managery but by the Soveraignty of it Ib. This Rule applied to the English Monarchy The happy condition of English Subjects An Account of a Sermon the Bishop preacht before the Long Parliament in commendation of the English constitution both in Church and State The reason why this Account given Church and State both subject to the Monarchy Popery and Presbytery both destructive to Monarchy Two Supremes in one Kingdom
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
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
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