majority therefore they were unjustly excluded Lend me this argument and but suppose that the majority of the Lords and Commons that followed the King to Oxford had had the hearts to have stayed in the Houses till by the most voices they could have Voted it unlawfull to resist the King though he turned Tyrant and I can by the same prove all our defensive wars to be unlawfull Potior saniòrque pars alteram compeliere in negotio aperto potest De jure Magist in subditos Quaest 7 Seasonable Testimony against Toleration p. 12. Meliority not majority is in this case to be respected The Vote which was thus disanulled was That the Kings Concessions in the Isle of Wight were firm grounds for the Establishment of the Peace and safety of the Nation Of which Concessions the judgement of the Kirk of Scotland was this The Lord is highly displeased with those proceedings in the Treaty at Newport in reference to Religion and Covenant Concerning which they accepted of such Concessions from his Majestie as being acquiesced in were dangerous and destructive to both And Non-subscribers cannot deny that in the Propositions that were made to the King there Simpâ—e Cobler page 58. the King was still â—uffered to have continued his Negative voice so long opposed Now the Kings Advisera was as a now friend of theirs expostulates the Gravamen of the Nation to Religion and Peace Indeed to grant it were to suffer a King to be as absolute as the great Turk there being no way to establish a necessary Law if a wilfull King shall refuse no way to establish the safety of a Nation if he must ever have the liberty to pretend dis-satisfaction and say he would advise when State-danger cals rather for action then Counsell To conclude it had been to give away the legislative power and to loose the King of his obligations at Coronation Si Regibus impotenter grassantibus humili p ebeculae insuâ—tantibus conniveant eorum dissimulationem nefariâ â—erfidiâ non carere affirmem quia populi libertatem cujus se Dei ordinatione autores positos norunt fraudulenter produnt Inst ca. 20. §. 30. wherein he swore to defend and confirm the Laws quas Vulgus elegerit Calvin will tell them what popular Magistrates are that collude with a Tyrant If saith he they connive at Kings impotently oppressing and trampling on their poore people I should affiâ—m that this dissimulation wants not wicked Treachery because they fraudulently betray the Liberty of the people of which by the ordinance of God they know themselves to be appointed Defenders The prevarication of excluded Members in receiving such Concessions as were destructive to Religion and Liberty and voting them sufficient grounds for the establishing of both could not deprive the innocent Members of their power of voting Injury cannot take away a right The revolting of abundance of the Members now from the interest of the Common-wealth can no more invalidate the Right of the others then the flying of so many to Oxfrrd as made a mungrel Parliament there could take away the right of them that remained at Westminster So that notwithstanding what the Plea hath said to prove the contrary the House of Commons is still a whole House legally which ex abundanti might be proved 1. Because they are in number above what the Law acknowledges an House 2. Because they have a lawfull call from the people to be their Representers unrevoked 3. Because they never gave their consent to their dissolution 4. Because the Law by which they sit is unrepealed And neither a face from without nor the prevarication of their own Members can make them cease to be an House Thus it being pâ—oved that the King Lords and Commons were not coordinate and that granting they were coordinate yet in case of necessity faulty coordinate powers may be excluded from trust by their coordinates it will follow that the Power that dispossessed the King and Lords is warrantable notwithstanding what hitherto Non-scribers have said to prove the contrary But it was not the House of Commons Plea c. page 23.24 that did Enâ—ct the removal of the King and house of Lords say Non scribers because that is contrary to the Engagements of the said House in their Declarations To this I answer 1. By the same reason it was not the House of Commons that voted a Treaty with the King at Newport because it was contrary to their Votes of Non-addresses and the Reasons given in their Declaration to the whole Nation and their Engagement to settle the State without him 2. What was properly fundamental in our Government the House doth maintain what was artificial or adventitious their being the Supreme Law-givers of this Nation bound them to abrogate if they found it dangerous to the peoples safety and liberty notwithstanding their Engagement That Magistrates are bound to prefer the safety of the people before any other Engagements of their own K. James his Declaration in the introduction to the Archbishops triall pag. 47. King James is a Witnesse his Majesty intends really to perform what he hath promised the suspension of the Laws against his Catholick Subjects but with this Protestation that if they abuse his favour to the embroyling of his State and Government the safety of the Common-wealth is in this case Suprema Lex and his Majestie must notwithstanding his Oath proceed against the offendors c. 3. The Declaration of April 17.16.6 saith Our intentions are not to change the Ancient form of Government but to attend the end of the primitive institution of all government which onely infers thus much That they would not make any change in the Government if they could without it keep the Nation in safetie but infers not that when that Established government came in competition with the Peoples safety they either might not oâ— would not change it 4. All your other Testimonies infer nothing else but 1. That the Commons truly and seriously desired the late Kings safetie and the continuance of his Government if it might consist with the good of the people that entrusted them 2. That they were unwilling to make any change till they saw all other means of the Peoples safetie unâ—ffectuall 3. That they did not out of malice or aâ—bition seek the Kings life or deposing as he and his Cavaliers charged them but onely the preservation of them that entrusted them All which are far short of making this conclusion Therefore they did not or had no power to take away abused Royalty and Domination although it were never so pernitious to the Common-wealth Nor will their Testimonies out of the Aâ—mies Declarations stand them in that stead Plea c. p. 25. which they suppose 1. The Army say they confesses that their breaking the House of Commons was irregular To which may be answered 1. That confessed irregularity cannot take away the Right of the remaining Members 2. That whatsoever is
of the Kingdom that treated with and against the Romans at all times and when the Romans could not attend the Britains feare it was this that called in their Neighbours first and after the Saxons All military Affairs saith Mr. Prinne of the Kingdom heretofore have originaâ—ly of right for their original Soveraign power of Parliaments part 2. p. 5. determining councelling disposing part bin ordered by the Parliament the Ministerial only by the King The Act of 28. E. 1. settles the Militia in the subject saith Mr. Derham and addes the absolute and general power of the Militia and the Militia positive or regulated by positive Lawes Manuel of the Rights of Parliament p. 95. 98. are both by Law invested in the people or the Representative body the Parliament And again the same Authour whose whole book tends to vindicate the supreme power of the Peoples Representatives saith We may safely conclude that the Subjects right and consequently of their Representative body to dispose of the Militia and great Offices of the Kingdom remaineth yet undoubted to this day In a word neither King nor Lords joyntly nor severally had any power to mould or manage a new Militia or raise a man or leavy a farthing towards the payment of an Army before the Commons by their Legislative power had decreed a Warre the proportion of Men and Horses to be raised and of money to be leavied so that though we grant the King and Lords as Heretoches c. to have had an executive power as General Colonels Captains c. yet the Commons ever had power to decree Peace and Warre and the supreme power over these their Ministers 3. The interest of the Commons in the supreme legislative power hath been evidenced already out of the Coronation-Oath to which may be added that of Fortescâ—e Soveraign Power of Parliament part 1. p. 38. quoted by Mr. Prinne The King who is head of that politique body cannot change the Lawes of that body neither can withdraw from the said people their proper substance without their wills and consents for such a King â—f a Kingdom politique is made and ordained for the defense of his Subjects Lawes and of their Bodies and Goods whereunto he receiveth power of his people so that he cannot govern his people by any other Law Rights of the Kingdom pag. 89. The Authour of the Rights of the Kingdom tells us that if we look to the old Writ of Summonâ— we shall find the Commons called ad consentiendum faciendum and the old Writ added quod quilibet omnes de Comitatu facerent vel faceret si personaliter interessent as it is in the modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writ expresses thus Ita ut dicta negotia infecta non remaneant pro defectu potestatis but the Lords are called de quibusdam arduis tractaturi consilium impensuri c. only as Councellers not as Law-makers for the very same words are in the Writs for Judges and others coming to Parliament although they do not vote in making Laws Soveraign power of Parliament p. 47. 51. of the first part Ibidem part 1. pag. 43. And if it should be replyed that Statutes are said to be enacted by the King and Lords as well as the Commons I shall answer that the Kings consent is required ex debito by vertue of his Office to every Law the Commons make and he cannot alter one tittle of it nor hath he any negative voice in matters of common Justice and that Laws might have been made if all the Lords had been absent as Mr. Prinne telleth us from Vowel whereas the Commons were neither bound to give consent to what the King and Lords proposed nor could the King and Lords act any thing without their consent 4. The priviledge of the last appeale was de Jure the right of the Commons Mr. Prinne calls the Knights Soveraign power of Parliament part 2. p. 24 Citizens and Burgesses of the Parliament the supreme Councellers and Judges of all others to whom all other Courts Councellers Officers Judges are responsible for their actions judgements advice Appeales arise either from obscurity of Lawes and who so fit to interpret Lawes as they that make them or from new cases not yet by Law determined and then the Legislative power must only interpose or from the corruption of officers and errors in judgement and then none are so fit to judge as they who have the Fountain-Power and derive it to all other Officers Thus having shewed that the supreme power hath appertained of râ—ght to the Representatives of the people it will follow that the Common-wealth of England is not a thing of yesterdayes erection but the Common-wealth which hath heretofore been doth now more clearly appear we have the proper fundamentalls of our most ancient Government still standing the alteration or abolishing of some Offices and names of Magistrates Commutatis Magistratuum nominibus atque officiis non statim alia Respublica est dum vissumma imperii primáque potestas illa ut ita dicam mens qua corpus omne movet atque continet una maneat atque eadem Grotius Epist Dedic ante libellum de Antique Reipub Batavicae Nec essentiam Reip Romanae concidisse quis dixerit cum exactis Regibus Majestas ad Optimates transiret Jacobus Lampadius Tract de Repub. Romano-German par 1. S. 60. Plea c. pag. 27.28 Plea c. pag. 29. doth not make a new kind of Government as long as the supreme primary power and the soule as I may call it which moves and quickens the whole politique body remains one and the same Let no one say saith a learned politique Councellor of the Duke of Brunswick's that the essence of the Roman Common-wealth perished when the Kings being driven out the Majesty passed to the Optimates much lesse is a new form of Government erected where the Majesty remains in the same Subjects that ever it did The Kings power being but executive the Lords judicial both but fiduciary and upon trust the Common-wealth laying them both aside for breach of trust can no more be said to have changed its Government and erected a new one then a Master of a Family that turns away a wasteful Steward and some other unfaithful Servants and fulls thriftily to deconomize himself can be said to change the form and nature of his Famiâ—y-Government From what hath been said it appeares 1. That the House of Commons had a power to lay aside the King and House of Lords in case of breach of trust 2. That their power by taking of them away is not lost that house being as a soule to the body without whom the King and House of Lords were a liveless trunck and could do nothing 3. That the power which at present they enjoy is that wherewith they were invested by the people
assertion I have shewed before Kings of politique kingdoms as England was in Fortescue's Judgement cannot change the Laws 2 Chronicles 21.10 Soveraign power of Parliaments Part. page 37. but the people are to be ruled by Laws only of their own making If the Representatives of the people have by the Law of nature a power over their Magistates and have exercised in it almost all Nations and the legislative power in England rests in them they had a power sufficient to take away the King and House of Lords and the powers that are taken away by their lawfull superiors are noe Power nor doth any tye lie upon their quondam Subjects to obey them What they adde ex abundanti Eccles 5.1 2 3. Plea c. page 41. Rom. 13.7 to prove the power of King and Lords still to remain is from such abundance as their sacrifice is whose voice is known by a multitude of words indeed meere Battology They say 1. The sanction of that Government from God is not disanulled they busie themselves to find out a way how it may be said to be dissolved I shall tell them Obedientia limitari semper debet secundùm limites potestatis quam habet superior praecipiens Medulla Theol. lib. 2. cap. 17. Thes 54. Plea c. page 42. God commanding obedience to powers commands to give every one their due and learned Ames will tell them that obedience ought alwayes to be limited according to the limits of the power of the superior commanding whence he concludes that the bond of obedience to an inferiour power ceases when the superior power commands it not to be obeyed We may safely conclude then that the Sanction of obedience to King and Lords is disanulled by the taking away of their Offices by the Representatives of the People of England their lawful Superiours 2. They would perswade us that the original constitution of the people in King Lords and Commons coordinate is not made void But the people never constituted such a Lordly King and Kingly Lords as they dream of they never gave them a joint power with themselves Non-scribers are pittifully mistaken in saying that the people chose their Delegates to consult and concurrently act with the King in Parliament They were chosen ad faciendum as the writ of Summons speakes to make Lawes for Kings and Lords as well as others not to be only Councellors or concurrent actors with them For their Reasons which they say they would produce to prove that it is unlawful for a people to depose their supreme Magistrate they would be very impertinent at the present for the supreme Magistrate is not deposed as long as the House of Commons stands and I doubt unconclusive unlesse they fully answer what Mr. Rutherford and Mr. Prinne two of their own friends have said in asserting the peoples power in that particular 3. Lawes say they are not repealed that give the sway of Government to certain persons and their issue To which I answer that such Lawes Plea c. page 43. if such there were are at lestwise virtually repealed in the Acts for taking away the Kingly Office and House of Lords and such repeales are lawful the whole legislative power being in the Representatives of the people who as an House are above all our common Law and positive Statutes and may change alter and abrogate them as they see most rationally convenient for the publick utility of the people These things considered engaging will appear nothing contrary to the Scriptures they quote page 37. The Senate was above Caesar and our Representatives of greater power then the Roman Senate the Parliament and people are the highest power No King is dishonoured by a Tyrants deposition no Ordinance of God is violated since God never ordained Tyranny in Exercise more then in Title Non-scribers are the men given to change who joyned with the Parliament in Armes against the King ere a while and one of the highest Acts of Soveraignty is the voting and making Warre and now are ready to joyn with his hopeless brood against the Parliament Plea c. page 44. In Judaeos Mahumeristas sub Christianism◠latitantes exerceri solet Grotius Antiqu Reip. Bat. c. 6. Paul Servita History of the Inquisition page 12. Their second Argument to prove that they are preingaged is grounded upon their Oathes Protestations Covenants Of which they affirm 1. Their contrariety to the Engagement 2. Their unremitted obligation In the entry to the answer of this Argument I cannot but observe that Non-scribers make the same use of the Oaths of Allegiance and Supremacy Protestation and Covenant which the Spaniards make of the Inquisition-Office which being at the first erected for the purging out of Jews and Moores professed enemies to Christianity is now used for the keeping out of all power of Christianity from coming amongst them so those Oaths and Obligations which were at first imposed to secure us against the enemies of our State and to discover Priests Jesuites and Cavaliers are now urged in the favour of a party who hath interwoven their interest so with that of the Romanists and Malignant Royalists that should they be observed with Non-scribers interpretation our Religion and Liberties are likely utterly to be subverted at lest-wise we should be put into as dangerous contests for them as we have through Gods assistance waded through in our late commotions Should we grant them that those former Engagements are opposite to the Engagement which well may be denied in the proof of which negative some of late have worthily travelled yet it will not thence follow that the Engagement is unlawful if it may be made appear that the obligation of them is ceased Non-scribers confess Plea c. page 52. that an Oath may be rendred void 1. By the revocation of a Superior having lawful power in the matter of the Oath The lawfulness of the superiority of the Peoples Representatives over the King c. hath been proved and if they had power over the Powers to whom the Oath is made so that they might lawfully divest them of their power they had power over allegiance the matter of the Oath Neither is this power of theirs over the matter of the Oaths weakened by any thing that Non-scribers say For 1. Notwithstanding the Oath of Supremacy acknowledges the King to be supreme Governour yet the Parliament and Kingdom are the supreme power paramount to him saith Mr. Prinne He was the supreme executioner of publick justice had a supreme executive power but not a supreme legislative power Soveraign Power of Parliaments part 1. pag◠104.105 that still was retained by the Representatives of the people To this we may adde what Mr. Prinne saith that the supremacy given to the King relates to the Popes and forraign Princes Authority formerly usurped not to Parliaments and their jurisdiction with whom Mr. Rutherford well agrees who scaning how the King is called supreme saith he is
yet will not this make them coordinate with the Commons The means are subordinate to the end The Patron is but an honorary servant to his Client As if a Patron having bargained with his Clients adversarie for a share of the profits should betray his Clients cause he would not hurt his Clients rights So the conspiracie of great ones to the hurt and destruction of the people cannot detract any thing from the Peoples right They will fall into the punishment the Law ordains against prevaricators and the Law will permit the people to choose another Patron and pursue their own right Thus Junius Brutus If the House of the Lords then refuse to judge Hamilton's Army publick Enemies if they continue in a destructive Treaty with a Tyrant their Judiciall power which themselves desert is lost The legislative power may deprive them of that power for the future 2. The Fountain of this power considered will shew them not to be coordinate with the Commons The fore-praised Author out of the British Antiquities and an old Law-book called The Mirror shews that the Lords were raised out of and by the Commons of late they have been made by the King Now if the King be not coordinate with the Representers of the People much lesse can they be that have their Honor from him The Kings of England heretofore have been constrained by Parliament to lessen the number of their meniall Servants And although the late Kings might be tolerated to make mushrom Lords to furnish out a Court-jigge or a Coronation-Pomp yet could they make none to equall them who gave Laws to them both the Commons of England 3. The Lords sate in a personall capacitie onely not so much as representing their own Families thence were their Brethren and Sons Members of the House of Commons as Denzill Hollis Nathaniel Fienes c. So many single Persons cannot equall the Representives of the whole people The Senate of Rome who had a greater power then the House of Lords were not equal to the Colledge of the Tribunes of the people Neither should we grant that there were an equalitie of Power between the King Lords and Commons would it follow that therefore they have no power one over the other There are exceptions from the generall rule Par in Parem non habet potestatem Neither will their Major be firm should we keep the terme coordinate For 1. The End of Coordination of Powers is that if one should prove pernicious to the Common-wealth there might not be wanting a Power to restrain it and if necessity require the taking of it away there might be a face of publick Authoâ—ity remaining 2. Superiors may become obnoxious to their Inferiors when by contract they make themselves so Much more may coordinates become obnoxious to each other if they be all bound to pursuc one end and some prevaricate 'T is to be confest indeed that ordinarily Coordinates have no privitive power over one another but yet the Rule holds not in all cases where one Coordinate endeavors to destroy the End for which it was ordained the other Coordinate may remove it The End of both their Coordination being to be preferred before the means conducing to it and it being not onely dangerous to let the remedie fall into the hands of the multitude but unlawfull for the innocent coordinate to quit his station Constantine the great Pari potestate praeditiâ— notum verò est quod vuâ—go dicitur Par in parem non habet imperium nibil-ominus tamen Conâ—tantinus Licinium Christianos in iisque nobiles plaerosque religionis sive causâ sive praetextu re egantem divexantem contrucidantem bello peâ—it religionis liberum cultum Christianis vi impetrat fidem denique frangentem ad pristinam saevitiam revertentem Thessalonicae morte mulciari jubet Vindiciae contra Tyrannos Quae. 4. pag. 204. and Licinius were both of them Emperors in one Common-wealth of equall power and that vulgar saying is well known Par in parem non habet potestatem yet notwithstanding when Licinius banished vexed killed many Christians and among them many Noble ones either because of their Religion or under that pretence Constantine waged war upon him by force procures for the Christians free exercise of their Religion and at last puts Licinius to death at Thessalâ—nica who had broken his promise and returned to his former cruelty so Junius Brutus who also adds that when the Empire was divided between Constantines three Sons and Constantine the eldest maintained the Arrians Constans the yongest the orthodox the yonger threatned the elder to force him to restore Athanasius whom he had banished The Consuls were set up at Rome Ne potestas soâ—â—tudine corrumperetur Florus l. 1. c. 9. Suet. in Julio cap. 49. Plea c. p. 21. lest a power without companion should turn to Tyranny the Consuls therefore were coordinate yet when Caesar affected Tyranny his Collegue Bibulus proscribed him and had he had strength would doubtlesse have executed the sentence he pronounced But yet there is another stumbling block Those that removed the King and Lords are not an House of Commons they are but a parcell of one of the Estates the majority being excluded by them and kept from them by force of Arms. To which I answer 1. By denying that the House did exclude the Members that were excluded at the first the force that was used in exclusion of them was not by the consent of their fellow-Members as appears by their Message to the Generall and Councell of War Neither doth the omission of the prosecution of the Authors of it argue their consent The punishment of an Error suppose that this we speak of be one may be omitted by Authority if such punishment be dangerous to the Publick Peace Page 9. 10. but of this the Exercitation Answered speaks sufficiently 2. By denying that they are kept out by force but by Order of the House which hath power to punish its offending Members The majority of the House that followed the King to Oxford were excluded by Vote The House past severall Votes to exclude them that would not take the Covenant yet none ever questioned the remaining part to be an House unlesse it were the Oxford Cavaliers The majority of the Lords House were excluded by Vote Petition of 12500. c. and kept out by the minor part and yet the Lancashire Ministers call this minor part The House of Peers in their Petition and their Answer received August 25. 1646. the Answer of the House of Peers And I can conceive no reason why the exclusion of some Members out of the House of Commons should make them no House and the exclusion of the major part of the House of Peers not make â—hem no House unlesse it be that Non-scribers have forsâ—ken their former principles But Plea c. p. 23. this Vote by which the majority was excluded was contrary to the Vote of that