when they chose them to be their Representatives so that their power is not of themselves as calumniating Non-scribers would perswade us Neither will what they quote from the Armies Declaration be of any avail to them We say with the Army that the continuance of the same Representatives is not fit to be drawn into ordinary presidents least their power should be corrupted by length of time yet in times of extraordinary danger when a great part of the people are disaffected to the meanes of their own safety and elections are like to be made of such as would return us it may be to our former slavery it is not unjust that power be continued in the hands of the present faithful Representatives who yet are not to be looked upon as those that must ever continue in tâ—at power that which we engage to is to the â—ommon-wealth of England which intimates as was said before succession of Representatives Non-scribers adde to prove the power unjust Plea c. page 30. 1. That it is against the Ancient and indubitable legal Rights and Tithes of the King Prince and Peers to their respective hereditary dignities and powers To this may be answered 1. That those powers and dignities in their first institution were not hereditary this hath been proved already And further things properly transmittable from Father to Son as Inheritances are onely bona fortunae 1 Chron. 23.1 with 1 Chron. 29.22 Kingdoms and dignities are not so communicable Solomon was no King till the people had the second time anointed him notwithstanding his designation by his Father Ahaziah notwithstanding the death of his Father and elder Brethren 2 Chron. 22.1 was not King till the Inhabitants of Jerusalem had made him so Lex Rex Quest 10. pag. 76. Nor doth the setling the Kingdome succession upon a line by a Law make the Kingdome the Kings Inheritance Arnisaeus saith that the Son hath not the right of reigning as the patrimony of the people but as a propriety given him by the Law of the Kingdom by his parents which assertion saith Mr. Rutherford is all one as if he said the Son hath not the right of reigning as the patrimonie of the people but as the patrimony of the people which is good non-sense for the propriety of reigning given from Father to Son by the Law of the Kingdom is nothing but a right to reign given by the Law of the people and the very gift and patrimony of the people He adds many arguments to prove that Kingdoms go not as a heritage from Father to Son To whom I may adde Junius Brutus who denies Vindiciae contra Tyrannos Quaest 3. and that upon good grounds that the King is either proprietary or so much as the usufructuary of his Kingdom much lesse hath he such an interest in it as a man hath in his Inheritance An Inheritance may be sold pawned changed Grotius de jure belli pacis l. 1. cap. 4. §. 10. none of these can be attempted by a King to be done to his Kingdome without losing his right to it For the Lords Mr. Rutherford saith That the King can make heritable Judges more then he can communicate faculties and parts of judging I doubt Riches are of Fathers but not promotion c. Honour is properly the reward of vertue and consâ—quently not properly communicable to posterity Our Lords were at first elected by the People and enobled for their virtues 2. Though we should grant that the Kings had the Kingdom and the Lords their dignities as Inheritances yet the right to an Inheritance may be lost may be seized Where God hath not bound conscience men may not binde themselves and their posterity but God hath not bound any Nation irrevocable to any Royall line or form of Government Ergo No Nation can binde their conscience Lex Rex que 10. pa. 78. or the conscience of posterity either to one Royal line or irrevocably and unalterably to Monarchy Superior verò universus populus quÃve eum repraesentant Vindicae contra Tyrannos Quae. 3. p. 178. So Mr. Rutherford Junius Brutus tels us that a Tyrant doth In populum tanquam in Feudi Dominum feloniam committere commit Felony against the People as against the Lord of his fee and adds from Bartolus that he may be deposed and punished by his Superior and his Superior is the whole people or they that represent them Treason according to our Laws taints the blood and makes the children of Traytors uncapable to succeed in any thing of inheritance The Kings of England were as much subject to Law as any private Subject Soveraign power of Parliaments part 1. pag 34. Though in exhibendo jure he were maximus yet in suscipiendo jure saith Bracton in Mr. Prinne minimo de Regno suo comparatur He was to be obedient to suffer right as well as others of his people saith another Lawyer out of the Mirror an ancient Law-book No wrong therefore is done to King or Prince Rights of the Kingdom p. 31. they having committed Treason against their own Crown and dignity by raising war against their people and so falling from all right to their hereditary dignities Had it been true that Naboth had blasphemed God and the King it had been no sin in Ahab to have seized upon his vineyard though the inheritance of his father Non-scribers brethren that call themselves a Pack of old Puritans shew themselves to be a Pack of Episcopaturient Parafites by their making the King as innocent as Naboth and the Kingdom as much his Inheritance as Naboth's vineyard was to him The Lords also by denying concurrence with the Commons in proceedings against the Tyrant and his friends betrayed as much as in them lay the Common-wealth and therefore are deservedly removed from that Authority they had The great Charter saith Nulli negabimus nulli vendemus nulli differemus justitiam The Lords denying justice broke that which is if any be a fundamentall Law of the Nation and for that are justly punished by the Commons their Superiors A Judge delaying or denying justice may be deprived of his office and why not the Lords whose office if they be not of the nature of those officers who have nec munus nec usum was judicial onely as was shewed before 2. That it is against the House of Commons Plea c. p. 31. but to prove that they bring nothing but the crambe bis cocta of the Engagement of the Declaration of April 17. 1646. the putting of the name of the House upon a part and the prostitution of priviledges all which have been spoken to already 3. That it is injurious to the people Plea c. ibid. In civium numero non sunt habendi violatores enim sunt humanae societatis aut certà proditores Buchanan de Jure Regni apud Scotos 1. In bereaving them of their Ancient Authority imposing a new
blood c. which he makes the reason and foundation of the following sentence Ezekiel 21.24 25 26. Plea c. pag. 21. Nec expenditur hodie quâ culpâ exsiderint possessione quam bonam de se spem praebeant quam integroriâ— administratione futuros existimens quos susceperint â—uendos Vna causa satis fuerit propinquus est Rex natus est repeâ—it nativum â—uulum Denique in postremis habetur cui popularis status afflicti Reipub funditus collabentis culpa imputetur Excidium Holmense p. 505. Truths manifest p. 23. Ezekiel also threatning the same judgement saith Because you have made your iniquity to be remembred in that your transgression is discovered so that in all your doings your sins appear because I say that ye are come to remembrance ye shall be taken with the hand And thou prophane wicked Prince of Israel whose day is come when iniquity shall have an end Thus saith the Lord God remove the Diadem and take off the Crown this shall not be the same Nebuchadnezer had no lawful superior power over the King of Judah nor the Medes and Persians over the King of Babylon but the demerits of the Kings of Judah and Babylon made their dispossession just before God These Apostate Non-scribers have oft presented the late King before God as a man of blood as a perjured oppressing Tyrane and yet now he is blameless We never heard yet alledged say they nor do acknowledge good reason or ground on mans part for the matters to have been done These men sin being condemned of themselves We may justly say as Albertus Kranâ—zius saith in a like case Christiern the second King of Denmark and his Son were expelled out of the Kingdom for Tyranny both of them breathed out threatnings agâ—inst them that had exiled them yet many favour'd them in their deserved misery who detested them in their exorbitant Domination It 's not regarded now saith he by what fault they fell out of possâ—ssion what hope of future amendment may be expected how just they will be in governing by them that have undertaken to defend them but one thing is enough he is a Kinsman a King born he endeavours to recover his native Title Lastly none considers to whom the fault of the peoples afflicted State and of the impendent utter ruine of the Common wealth is to be imputed The blood which hath been shed by the two last Kings which a Scotch Writer of no mean credit saith to be more then was shed by the Roman Emperors in the ten primitive persecutions the guilt whereof might have lain upon the Nation might the prerogative Lords and câ—joled Commons have had their will this blood I say of so many precious Saints and Martyrs as Non-scribers have often called them is now no more regarded by them then the blood of so many Doggs in a time of pestilence Yet since they put the question upon this issue that the warrant of persons is requâ—site to make an action lawful I shall joyn issue with them in tâ—is particular hoping not to be non-suited at the Bar of reason To evidence the want of Authority in the persons they lay down this proposition Plea c. Pag. 21. If a Government be made up of three Estates every of them being fundamental to the constitution one of them cannot take away another I distinguish of fundamentalness there are two sorts of foundations 1. A natural foundation as the ground soyle earth or native Rock is to an house 2. Artâ—ficial as the stones that are first laid upon that soyle or natural foundation So there are two sorts of Estates fundamental to the constitution of every publick body that deserves to be called free 1. Those that are originally fundamental viz. a common supreme Councel of Deputies or Representers freely chosen by the people in whom the power of making Lawes constitutions and offices rests 2. Those that are ascititiously fundamental or derivatively builded up upon the originally fundamental estate who have a power judicial or executive committed to them Those fundamental Estates which are derivatively so may not take away one another but the estate which is properly fundamental may take away the other and be blameless in case of breach of trust or abuse of power entrusted to them But Non-scribers apprehend tâ—e powers they speak of to be equally Coordinate Plea c. page 22. so that the whole force of the sence of their argument is this Coordinate Powers have no power to take away each other King Lords and Commons are coordinate Powers Ergo. I deny both propositions and shall shew first the erroneousness of the Minor In so doing I shall shew them 1. Rights of the Kingdom p. 86. alibi passim That the power of the King was not a coordinate power with that of the Representatives of the people not an absolute and perfect coordinate which appears 1. From the nature of the Kings power Our Lawyers divide the powers of this Nation into Original Judicial and Executive and affirm that the Kings power was but executive To make executive power coordinate with the nomothetical and original Rights of the Kingdom p. 19. were to make the Executioner equal with the Law-maker 2. From the Coronation-Oath wherein the King sware fealty to the State and Lawes as his higher Lords that I may speak as the Authour of the Rights of the Kingdom in which Oath the King sware to hold and guard Soveraign Power of Parliaments part 2. p. 75. confirm and defend the Lawes which the Commons should chuse De tuendo custodiendo justas Leges consuetudines Ecclesiae ac de faciendo per ipsum Domirum Regem eas esse protegendas confirmandas quas vulgus juste rationabiliter elegerit as Mr. Prinne gives us that clause of the Kings Oath out of a Parliament Roll and out of the Book of Clarencieux Hanley in English thus Will you grant fulfill defend all rightful Laws Customs which the Commons of the Realm shâ—ll chuse The King shall answer I grant and believe That power cannot be coordinate with the Law giving power which is obliged to all and cannot alter an apex or Title of those Lawes that another Estate shall chuse The mutual stipulation between King and people Appendix page 48. was that which was constituted a King of England before this past he was but Regni candidatus Non-scribers tell us that the Kings of this Realm are legally and actually Kings upon the death of their respective Predecessors and this say they Lawyers and Historians will satisfie among whom they chose Speed to urge in which quotation I profess I admire that men brought up in the study of good Arts to say nothing of the conscience they pretend to should so over-shoot themselves as not to be able to distinguish between what Speed relates as an Historian Speed Rich. 1. S. 3. and what corrupt glosses he put upon
our ancient Chronologers for immediately before the passage they quote he acknowledges that before Richards Coronation most writers call him not a King and then he holds that Sycophantical glosse which Non-scribers make use of A Lawyer and that a friend of their own tells us from Walfingham a farre more authentique Historian then the Merchant-Taylor that in the Coronation of Richard the 2d when the King had taken his Oath Archiepiscopus praecedente eum c. the Arch Bishop Henry Percy the Marshal of England going before him turned himself to all the parts of the Church and acquainted the people with the Kings Oath asking them whether they would obey such a Prince and it was answered by all the people with a loud voice that they would which custom saith he hath bin constantly before and since observed And another of his profession saith Soveraign power of Parliaments part 1. p. 75. That the King ought to take his Oath before he should require his Subjects homage when any Subjects have sworn homage before the King had done his homage sworn fealty to the State Law it hath been observed by Historians as some kind of Comet or Prodigy in State-politiques so that notwithstanding Rights of the Kingdom p. 32 that for peace sake the next of the blood hath usually succeeded yet he could not require homage before he had first sworn to the Lords the Commons consâ—quently hath his Kingly bâ—ing from that stipulation He cannot then be coordinate with them whose swearing obedience to the Lawes they shall chuse gives him his Kingly power and dignity 3. Lex Rex quest 21. p. 177. 178. Those who make a King and have power to unmake him in point of misgovernment must be above the King in point of Government But the Parliament makes Kâ—ngs and Kings make not Parliaments the Kings power is fiduciary and put in his hands upon trust and must be ministerial and borrowed from those who put him in trust his power must then be lesse When the King hath received power from them they have the whole power they had before that is to make Lawes and resigned no power to the King but to execute Lawes and his convening them is an act of royal duty c. Lex Rex quest 24. p. 210. all this is Mr. Rutherford's and therefore should take more with Non-scribers And again the Parliament is coordinate with the King ordinarily but the coordination on the King's part is by derivation on the Parliaments part originaliter and fontaliter In ordinary there is a coordination but if the King turn tyrant the Parliament is to use their fountain power and that of the Law Par in parem non habet potestatem is no better from his pen saith Mr. Rutherford that is from the excommunicate Bishops of Rosse then from Barclay Grotius Arnisaeus Blackwood c. We hold the Parliament that made the King at Hebron to be above their Creature the King See then Reader who are the Patriarchs and Prophets of Non-scribers fast Cavaliers excommunicated Prelates But what say Non-scribers to this Argument Even run themselves into the height of Cavalierisme Appendix p. 35. The Authour of the Engagement vindicated saith the people chuse their Representatives and they set up Kings who are therefore meerly the peoples Creatures depend upon continuation of their pleasures Ejus est instituere cujus est destituere To this they answer This is spoken as if it were undeniably true that Kings with us have been wont to be set up by the Representatives of the people but we have neither seen nor read of any such custome in England we have not any one president of a King created meerly by a Representative Is this their knowledge of Histories to which they send us elsewhere for satisfaction Sir Thomas Smith calls the Parliament the Representative body of all England wherein every Englishman is presumed to be either by himself or by his Proxie And many Kings have been made by this Who made William the first King his Conquest Non-scribers will say was no just title the right successive heir of the Crown Edgar Etheling surviving who made William the 2. and Henry the 1. Kings while their elder Brother Robert was alive What Title had King John by succession as long as Arthur and Anne the Children of his elder Brother George Frey Duke of Brittain lived the latter of which Anne lived in the Reign of Henry the third Son of John The Arch-Bishop Hubert at the Coronation of John spake thus Noverit discretio vestra c. Be it known to your discretion that none hath right or any fore title to succeed another in a Kingdom unless first he be with invocation for grace and guidance of Gods spirit by the body of the Kingdom thereunto chosen Soveraign power of Parliaments part 1. p. 54. Rights of their Kingdoms p. 70. So Mr. Prinne out of Hoveden to which all the Assembly consented scientes quod non sine causa sic defini verat as the Authour of the rights of their Kingdom out of Matthew Paris and Wendover compared with Hoveden and others which Authour tells us that if Bracton and Fleta 2 ancient Judges may be made Judges of our Kings Titles they will tell us that in their times our Kings were elective And one of them lived in Henry the thirds time the other soâ—ewâ—at after Edward the 3. was made King by the same power that his Father was deposed by and what that was Speed Ed. 2. S. 74. Speed will tell you the sentence was pronâ—unced by William Tâ—ussel of all the men in England and of the Parliament Procurator Fractus Temporum part 7. Rich. 2. Henry the 4. was chosen and made King of England by the people for the rightful manhood they found in him as the old Fructus Temporum But to conclude who made Henry the 7. King not succession for by his Father he was a meer stranger to the Royal Line and by his Mother of such a â—prout of the Family of Lancaster as was excluded from succession to the Crown by that Law which made it capable of succeeding to ordinary Inheritances Speed Hen. 7. S. 1. as Speed confesseth By his wife he had it not for he exercised all the Acts of Royal Power before he was married His Conquest Non-scribers will deny to be a Title it must then follow Speed Rich. 3. S. 53. that it was from the Parliament he had his Title unless they will say with Speed he had it by election of the people in the field at Bâ—sworth But I believe Non-scribers will say that Act was more valid which was done by an orderly Parliament then that which was done by the Souldiers in the height and heat of their victory If they have not seen or heard these things they are strangers in English History But it was not the obscurity of these things in our Histories that made
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
die the in the late King Oligarchy in a Company of Pattentee-Lords and Ochlocracy in the seditious Commons who voted a Treaty with the Tyrant they complying with the seditious Surrey and Kentish Petiâ—ioners Now Tyranny Oligarchy and Ochlocracy are specifically different from limited and lawful Royalty Aristocracy and Polity And consequently the present power dispossest a meer novel power The former Government being dispossest by the King turning Tyrant the Lords accepting Pattents and the Commons that are excluded abetting Tyranny and Tumults Set the Saddle on the right Horse and let Non-scribers judge who dispossest their former Government Nay yet further the Non-scribers and their beloved party were they who even according to their own principles deposed the King House of Lords and Majority of the Commons The civil being of a King is in his Royal Power this Non-scribers Friends had taken from him and made him not only less then a King but then a private free-man their Captive Plea c. pag. 24. The Majority of the Lords house they kept out and according to Non-scribers principles the Majority of a house is legally and as to action and power the whole house Familiare est hominibus omnia sibi ignoscere nihil aliis remittere invidiam rerum non ad causam sed ad voluntatem personásque dirigere Velleius Paterculus Vol Posterius The like they did by the Commons who followed the King to Oxford who were for ought I can learn the Majority of that house All these things they did by no lesse force then was used in that Non-scribers so much quarrel It 's a familiar practice among some men to pardon themselves in every thing others in nothing and to cast the envy of actions upon other men which when it stood with their own will and advantages they did themselves But go to let us see whether Non-scribers afford us not an Argument to prove the dispossession of the King and House of Lords and his other Adherents lawful In their Appendix they have this passage some kinds of Governments are in their own nature unlawful so is that of the Beast Rev. 17. And the 10. Kings or Kingdoms many understand giving their power and strength to the beast Suppose now that it can be proved that the King and those who would have reduced him in his impenitency did give up their power to the Beast as I doubt not to prove that they did will it not then follow that their power was in its nature unlawful and that it was lawfully dispossest which was a power of its self unlawful and not to be submitted to Introduction to the Arch-Bishops Tryal pag. 47. go to then let us see whether the King did not give up his power to the beast I shall not here stand upon King James his Declaration wherein he undertakes to suspend the execution of all Lawes against Papists and to hinder the making of any more though published by Mr. Prinne Popish Royal Favorite pag. 41. nor upon King Charles his Letter sent from Spain to the Pope wherein he not only calls the Pope most holy Father but averts himself to have been alwayes farre from encouraging of novelties or being a Partizan of any faction against the Catholique Apostolique Roman Religion upon which passage Mr. Prinne notes that our Religion was deemed but a novelty and faction by the King Truths manifest p. 20. Kings Cabinet opened let 8. p. 7. Ibidem let 19. p. 19. Popish Royal Favorite p. 1. to 30. Introduction to the Arch-Bishops Tryal p. 84. 85. Cabinet opened let 7. p. 7. He that dispatched a Commission under the great Seal of Scotland to the Rebels in Ireland to impower them to Massacre the English Protestants He who did give his Popish Wife Authority in his name to promise that he would take away all penal Lawes against the Roman Catholiques as soon as he was able He that commanded his Lieutenant in Ireland to promise the like to the Irish Rebels He that was alwayes an uxorious observer of a Romish wife that hath imployed all his power to free Priests and Jesuites from danger that to gratifie their French King a Papist lent him his Ships against the poor Protestants of Rochel and hath armed many thousands of English Papists besides Irish Rebels against his Protestant Parliament He that avoweth his constancy to Bishops and all his own the Queens friends whom Non-scribers have oft called Atheists and Papists the man I say that hath done all this hath given his power to the Beast which power he hath by instigation of the Beasts Emissaries imployed against the Lambe and his followers They who would have set this man over us again without any provision against his negative voice or any taste of repentance gave up their power to the Beast in giving themselves up to him that was the Beasts Client Declaration of the Irish in Ulster Nor is the state now changed the interest of the Irish Rebels is now one with that of the declared Kings of Scotland as they have publickly testified to the world So that all that strive to reduce him serve the Anti hristian Interest and it is remarkable how the Irish Rebels Scots and Non-scribers agree in their opinions concerning our present Government To conclude such a power being unlawful in its nature as Non-scribers tell us is lawfully dispossest by any that hath the power of a Magistrate and hates the Beast and all that refuse to exercise their power in destroying the Beasts Government may well be concluded under the curse of Meroz because they reward not the whore as she hath dealt with the Saints The second Medium whereby Non-scribers would prove the Common wealth of England to be an unlawful power Coal from the Altar p. 42. Plea c. p. 26. Arist Polit. lib. 4. cap. 9. is in regard of its erection And here they kindle like Dr. Cole against the Bishop of Lincoln for saying the Children of the Common-wealth we live saith Heylin in a Monarchy not under a Democracy So they cry at the first fight it looks like that which they call a Democracy If they would have consulted Aristotle he would have told them what that is which lookes like a Democracy and is none he layes it down as the mark of a perfectly mixt Polity Qui concentus sanè admirabilis illam exprimit laudatam Platoni Rempublicam quam optimates regunt cum plebis consensione Hugo Grotius De Antiquit. Reipub. Batavicae cap. 1. pag. 38. vulgatum est nullam fisco praescriptionem nocere multò verò minus universo populo qui Rege potiâ—r est cujúsque gratiâ Princepids privilegium habet Vindiciae contra Tyrannos Quaest 3. pag. 96. Appendix pag. 36. to be so mixt of Oligarchy and Democracy that its doubtful whether the form of the Common-wealth be Oligarchical or Democratical So is the Common-weale of England mixt the peoples election of their Delegates is
Democratical the Government of these Deligates is Oligarchical they being chosen out of the wealthiest of every County and both these put together make up a Pol ty as Aristotle calls it but as Plato whose termes differ from Aristottles 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 To prove the erection of this unlawful they much labour but that toyl of theirs might very well have been spared The people of this Land have in all ages had a supreme power over their King and Lords which was exercised by their Representatives who by old Lawes were to meet twice a year and by a latter Statute once a year though the Tyranny of wicked Kings had brought that of late into a disuse Which prescription notwithstanding cannot take away the Peoples right It s vulgarly said That no prescription lies against the Kings Exchequer much less can a prescription lie against the People who are greater then the Prince and for whose sake the Prince hath that priviledge Dicores quatuor esse in quibus sita est tota vis Majestas Reipublicae nimirum Jus Magistratuum creandorum Deliberationes omnes de Pace de Bello Legum lationes tandèmque Provocationes Donatus Janottius de Repub Venetâ pag. 59. Speed Book 5. Chap. 5. Suma imperii bellique administrandi communi concilio commissa est â—assivellauâ—e Nostro adventu commoti Britani hunc toti bello imperióque praefecerant Caesar Commenter lâ—b 5. Spe. d. lib. 7. cap. 1. S. 6. saith Junius Brutus The form of Government is that which dat esse operari as Non-scribers say and natural order and reason requires that propriae operationes propriae formae respondeant if therefore it be proved that the Representatives have ever had de jure a power to do the Acts proper to the supreme power it will follow that the supreme power was formally in them and that they were a Common-wealth having supreme Authority in themselves Let me here use the words of a learned Florentine I say saith he that there are four things in which the whole power and Majesty of every politique body is placed the power of creating Magistrates all deliberations concerning Peace and Warre making of Lawes and the last appeales If therefore the Representatives of the people have had the right to create all general Magistrates to consult of Peace and Warre to make and abrogate Lawes and the priviledge of the last appeal to be made to them they have been the supreme power That they have had these Rights I shall prove and begin first with Creation of Magistrates Julius Caesar before whose entrance into this Island the times are obscure through whose mists no Eagles eyes can pierce as the beloved Historian of Non-scribers Speed confesseth found the supreme power of electing Magistrates in a Common-Councel of the people The chief power of Rule and administring the Warre was by a Common Councel committed to Cassivellauâ—e And again the Britâ—ains being troubled at our landing set him that is Cassivellaune over the whole Warre and Empire The Common Councel then that made Cassivellaune King and General was a Tan-Britanicum an Assembly representing all Britain And when the Romans quitted their tooting here the Britains being invaded by the Picts joyntly united their meanes and powers and with one consent elect a King to manage those affairâ—s which was Vortigerne whom afterwards they deposed and elected his Sonne Vortimer But I must for further satisfaction in this point refer them to the Authour of the Rights of the Kingdom who after many Examples of such Creation of Kings concludes thus We see the Law at lest the â—ustom of those times both for electing anointing judging and executing of Kings themselves among our British Ancestors Conceâ—ning our Saxon Ancestors saith the same Authour the Minor is very clear that they did elect or chuse their Kings from among themselves who well agrees therein with the witness of Tacitus Rights of the Kingdom p. 55. Rights of the Kingdom p. 35. Reges ex nâ—bilitate duces ex virtute sumunt Tacitus de moribus Germanorum Soveraign Power of Parliaments part â— p 78. Soveraign Power of Parliaments part 2. p. 41. Soveraign Power of Parliaments part 1. p. 91. who speaking of the ancient Germans of whom the Saxons were a branch saith they chose their Kings for their Nobility their Leaders for their vertue which Testimony informs us that they enobled some for their vertues and out of them chose their Kings Concerning the Normans I have spoken already To conclude with the Testimony of Mr. Prinne who tells us That our Parliament and Kingdom observe the opposition anciently have both claimed and exercised a Supreme Power over the Crown of England it self and that we may be sure what he meanes by Parâ—iament in another place he saith out of Fortescue Chancellor of England in Henry the sixth's time that Kings were created and elected at first by the general Votes of the people from whom alone they receive all their lawful Authority having still no other or greater lawful power then they conferred on them only for the defence of Lawes Persons Liberties Estates and the Republicks welfare which they may regulate augment or diminish for the common good as they see just cause Neither did the setting of Kings over them divest them of the supreme power it self if Mr. Prinne while a defender of Parliaments may be credited I doubt not saith he but our Parliaments Kings and all other Nations would say they never intended to erect such an absolute eternal unlimited Monarchy over them and that they ever intended to reserve the absolute original soveraign jurisdiction in themselves that if their Princes should degenerate into Tyrants they might have a remedy to preserve themselves An impregnable evidence that the whole Kingdom and Parliament representing it observe what is a Parliament the Representative of a Kingdom and then not the Lords that represent no body are the most Soveraign power and above the King because having the supreme jurisdiction in them at first they never totally transferred it to the King but reserved it in themselves I should tire my Reader should I say all that might be said concerning the Commons Creation of other Magistrates Soveraigâ— Power of Parliaments part 2. p. 7. Mr. Prinne brings in Sir Edward Cook affirming that the Lord Chancellor Treasurer privy Sealâ— Lord chief Justice Privy Councellors Heretoches Sheriffs with all Officers of the Kingdom of England and Constables of Castles were usuâ—lly elected by the Parliament to whom of ancient right their election belonged who being commonly stiled the Lord Chancellor Treasurer chief Justice c. of England not of the King were of right elected by the Representative body of the Realm of England to whom they were accountable for their misdemeanors Rights of the Kingdom p. 77. 78. 2. All consultations of Peace and Warre of right appertain to the Commons of England It was the great Councel saith the Authour of the Rights
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
withall engaged themselves to hold the Countrey of the Netherlands under the obedience of their Prince and natural Lord as they ought to do for so are the words of their protestation in Mr. Prinne's Book yet in the year 1581 Hugo Grotius de Antiq Reâ—p Batavicae cap. 5. Paulus Merula de statu Reip. Bataviae Diatâ—iba Johannes de Latt Descrip Belgicae tit Hollandia cap. 7. Henricus Sâ—terus Suecia pag. 131. Seq pag. 202. 206. 216. they solemnly abjured the King of Spâ—ine who was â—â—e Hereditary Earle of Holland And the Earles of Holland were not in any thing short of a justly regulated King and had as much Authority there as the Kings of England among us as the Authors in the Margin inform us The States of Sweden in the year 1544 changed their Elective Kingdom into an Hereditary which they entayled upon Ericus the eldest Son of Gustavus their King then and his issue male and if such issue failed upon John the Kings second Son and his heirs male and in like manner upon Magnus and Charles Duke of Sudermannia the Kings younger Children to this they sware solemnly Yet Ericus for his Tyranny was deposed by the States and John the second Brother crowned he dying and leaving Sigismund King of Poland and John Duke of Ostrogothia his 2. sons behind him Sigismund was crowned King of Sweden yet because he endeavoured to destroy the Protestant Religion established among them and Warred upon them he was deposed by an Act of the States Assembled at Stockholm in the year 1599 and in the year 1600 both he his posterity excluded from all government in Sweden by a Decree of the States assembled at Lincop nay more they excluded from the Kingdom John Duke of Ostrogothia the brother of Sigismund because they feared lest he out of naturall love to his brother should enter into any part or Covenant with Sigismund and his heires which might bring detriment to their countrey and then they chose Charles Duke of Sudermannia for their King And if the States of Holland might abjure their Earl and not be scandalous to us nay and we joyn with them as our Nation did in Queen Elizabeth's dayes if the States of Sweden might abjure Sigismund Ministri in hac sententia constanter permanserunt posse viz. Magistratum sub leges vi cogi Buchanan Rerum Scot. lib. 17. his brother and issue and not be scandalous to us nay more and we help Gustavus the Son of Charles whose right was built upon Sigismund's ruine I can see no cause why our actions and engagement should be scandalous to any honest man among them or any other Nation that approved the equity of those actions in Holland or Sweden Scotland it may be will frowne because the current of Pensions from England is stopt but they that laid the foundation of Reformation in Scotland were of another mind then their present Kirkmen Mr. Knox defended the Lawfulness of putting Tyrants to death in a Generall Assembly In the Scotch Queen Maries dayes Buchanan Rerum Scot. lib. 20. Magis formidamus nimiae lenitatis apud omnes bonos reprehensionem quà m apud malâ—s crudelitatis calumnium Actio contra Mariam Scotorum Reginam pag. 100. Plea c. page 60. the Ministers were constant in this opinion that the Magistrate might be brought by force under the Lawes and the Earl of Morton and other Scotch Lords Ambassadors to Queen Elizabeth justified their deposition of Mary and affirmed that they might by the Law of Nature and their Countrey have dealt more severely with her and that her life and the successors of her Son depended upon their clemency their Oration which was presented to Queen Elizabeth a Latin Printed Copy whereof I have ends thus We more feare to be reprehended by good men for our over-much Lenity then we do to be slandered by the bad with cruelty Were Scotlands Kirkmen the true successors of Mr. Knox and Buchanan we could not offend them but we being their successors in the truthes they professed and the Scots Apostatizing we may well cast them in with Non-scribers and contemne the offences they take against us with Let them alone c. But the imposing of the Engagement say Non-scribers is scandalous because it takes away the Liberty of Conscience which the Imposers professedly maintain and they cannot see any reason but that they should leave Conscience free in Civill matters who would have it free in matters of Religion But besides that the Imposers of the Engagement have not for ought I know owned the Patronage of so vaâ—â— Libertinisme in matters of Religion as Non-scribers would â—ather upon them their Argument may be retorted upon themselves It is scandalous that they who hold tolleration of difference in outward formes of Discipline unlawfull should claime a tolleration in Civill matters and it would be scandalous in the Magistrate to tollerate any thing Festus Hommius col Anti-Bellarminianum Disp 34. Thes 4.5 Sam. Bolton Arraignment of error pag. 335. 336. Plea c. pag. 61. or to grant any priviledge which by the Priviledged is looked upon under the Notion of sin and Learned Presbyterians into the number of whom Non-scribers itch to be received rank opinions destructive to the publike Peace with such as are blasphemous and contrary to Fundamentall truthes and allow the Magistrate an equall nay greater Power to punish them that are seditious then them that are so erroneous Concerning the Agreement of the People I have this only to say that the Parliament never owned it and therefore Non-scribers do meerly Calumniate them in laying it at their doores But their new strain of Poetry wherein they would make Sphynx a resolver of riddles I must say that for ought I have read Isti quidem orationi Oedipos epus conjectori est qui Sphyngi interpres fuit Plautus in Paenulo Act. 1. Scen. 3. Plea c. page 42. the proposing of riddles is onely attributed to Sphynx the resolution to Oedipus And for the Riddle it self since Non-scribers are the Sphynges I will make them according to their own Poetry the unriddlers Non-scribers call the Government by Kings Lords and Commons the constitution of the People yet make the People subject to it So that the people by their own concessions may have a radicall virtuall Power of Soveraignty which when they have derived and it is in the Magistrate formally they are to obey the Magistrate made by them The people as a Community gave their Power to their Representatives as singulars are required to Engage They who aggregately as a Community are the Originall of power may severally and personally be the Recipients of it The rest of their Rhetorick is spent in bewayling the Tyranny Plea c. page 61. 62. 64. oppression Injustice which our Nation as they say is under notwithstanding the imposers of the Engagement professe opposition to Tyranny and make Justice and Liberty their Motto But that you may know
War quite to shake off the Moabitish yoak Would such as Non-scibers cease to abuse the Parliaments lenity and the Peoples credulity we should lesse fear civil commotions and for forraign enemies blessed be God he hath delivered us and we hope will yet deliver Lastly Non-scribers say the people are wronged Plea c. P. 33. because the force Bond and security of all the Laws are changed by this change To this I say That the Laws are the peoples Laws they chuse them they make them their representatives are the supreme Magistrates who have the supreme Authority to make and confirm a Law and as long as the people want not these the security of the Laws can never fail but their security is so much the more provided for by how much any power that pretends interest in the making or confirming of a Law besides the Representers of the people is curbed So that the Peoples Laws are more secure now being out of danger of being hindred in their making by a royall advisera or in their execution by protections against Law flowing from an unlimited prerogative And whereas Non-scribers say that the Parliament hath violated the Legal and most foundational property of their Superiors I would have them know that the people of England represented in Parliament have no superiors under God which is a truth of such force as drew from King James himself a confession that he was no other then the great Servant of the Common-wealth Plea c. p. 34. The punishment against such as engage not which Non scribers urge to prove that the security of Law is loosed is no other then the Rational practice of all our Law-Courts viz To deny them the benefit of the Law who deny the jurisdiction of the Court And they deny the jurisdiction of all Courts which is but derivative who deny the Supreme power of the Com-monwealth of England which is in respect of other Courts Original and fountain power Plea c. pag. 35 36. I have thus done with their first Argument which militated 't is Non-scibers paedantique word against the Engagement abstractly considered I shall come now to a view of their second ground which concerns them they say as English men As â—â—eâ— say they are pre-ingaged and in regard of precedent obligations it would be perfidie another of their Elegancies to engage in this Their engagements are two-fold as Subjects as sworn under that relation Their first argument in pursuance of this second reason is this If the tye of Subjects to Magistrates is upon us in relation to an Authority and Government which cannot be said to be a Common-wealth without a King and house of Lords then we cannot engage but such a tie is upon us Ergo. I deny the Minor there is no such tie upon them or any English man The power to which they say they were obliged was not a power consisting of three coordinate estates as they suppose but of a Polity or Common-wealth the University of the people being represented by their chosen delegates in whom all Majesty and supreme power of the Commen-wealth resided the King an honorary Servant of the Common-wealth to see its Laws put in execution and the Lords as Judges appointed to judge between the Common-wealth and King When the Commons say that the fundamental Government consists in the King Plea page 37. Lords and Commons fundamental is to be taken in its largest sence and we must distinguish between what is properly what is ascititiously fundamental That a people inhabiting together in one Land be a Common-wealth having all power to themselves for self-preservation and are to be governed by whom themselves shall chuse is natural and properly fundamental that they set a King to execute their Edicts and Lords to judge him in case of miscarriage is voluntary and improperly fundamental If therefore the Representatives of the people by the peoples fountain-power which they neither can or do give up to any King or Lord do take away the King and Lords to whom the people cannot be given up irrevocably the King and Lords so taken away are no more a power have no more Authority Let us now hearken how they prove that this authority of the King and Lords remaines for that the House of Commons is still a legal representative of the people hath been proved already and I shall avoid repetitions as far as following Non-scribers in their wild goose chace will give me leave They say Plea c. p. 38. The only wayes of dissolving Government appliable to the occasion are either that it must be done by some Act of those in power to do it or by forcible and violent ejection That what was done was done by unjust violence I deny that it was done by them who had lawfull power to do it I affirm Nonscribers strive to prove that they which did it for they confesse acts of repeal to have been made were not qualified with power to do it by two Medium's 1. Because they never had such power committed to them nor did any of their capaci y ever exercise such a power To this I confidently reply that the Representatives of a Nation In all Nations that have had the happinesse to enjoy such have a power to depose their Tyrannicall Magistrates by what name or title soever they be called Proof of which may be seen at large in Junius Brutus De illarum sanctionum genere quae mutationibus temporum non sunt obnoxiae sed in primo generis humani natu in mentes hominum incisae sunt mutuo propé omnium gentium consensu comprobatae unà cum rerum natura irrefragabiles sempiternae perennent ipsaeque nullius imperiis obnoxia omnibus dominentur imperent Bucan Rerum Scotic lib. 20. and the Author of the Treatise De jure Magistratus in subditos and that by a Law which is of kind to those sanctions which are not obnoxious to the changes of times but were at the beginning of mankinde ingraven upon the minds of men and approved by the mutual consent of all Nations and together with nature it self are irrefragable and eternall ruling over all subject to none I borrow the expression of some honourable Scotch Lords Ambassadour to Queen Elizabeth in justification of their ejection of Mary Grandmother to our late Tyrant And for their ignorance of any such principle in Scripture it argues their carelesse search of it There they might find Israel using their native liberty in deposing Samuel and setting up a King though Samuel was innocent and God himself was interessed As also the defection of Libnah one of the Priests Cities from under the hand of Jeboram because he had forsaken the Lord God of his Fathers and if one City for themselves may reject a King much more the representatives of a whole Nation 2. They say the legislative power was seated in three estates therefore the Abrogative The falshood of which