a change of Government for that includeth the greatest resistence and violation of the person and power of the Monarch the lawfullnesse of which I utterly disclaime Thirdly it is not ever accompanied with the evills of Civill Warre But when the Princes Will findes enough Instruments of their Countreys ruine to raise it And then the mischife of that war must light on those which raise it But suppose it may ensue yet a temporary evill of war is to be chosen rather then a perpetuall losse of liberty and subversion of the established frame of a Government In the fourth I deny the parity of reason for the two Houses are bodies constituted and endowed with legislative authority and trust of preservation of the frame by the Fundamentalls of the Kingdome which the people out of those Houses are not Againe the Government being composed of a threefold consenting power one to restraine the exorbitance of another All three together are absolute and equivalent to the power of the most absolute Monarch The concurrent Will of all three makes a Law and so it is the Kingdomes Law To the last I answer In every State some must be trusted and the highest trust is in him who hath the Supreame power These two the Supreame Trust and the Supreame Power are inseperable And such as the power is such is the trust An absolute power supposes an absolute trust A Power allayed with the annexion of another power as here it is supposeth a trust of the same nature A joynt trust yet saving the supremacie of the Monarch so far forth as it may be saved How farre forth the sword is in the hand of the Monarch and not be absolute and the others authority nullified It may be further argued that it being the Prerogative Royall to have the managing of the sword that is legall force in the Kingdome none can on any pretence whatever use lawfull force either against him or any but by his Will for it is committed to him by law and to none but whom he assignes it to so that the Lawes of the Kingdome putting all power of force and Armes into his trust have placed him and all those who serve him in a state of irresistiblenes in respect of any lawfull force This is a point much stood on and on this ground the Parliament now assuming the disposing of the Militia by an Ordinance it is complained on as a usurping of what the Law hath committed to the King as his Prerogative The opposing of which Ordinance by a Commission of Array was the beginning of this miserable Civill-Warre I will distinctly lay down my Answer hereto submitting it to every impartiall judgement Pos 1 1. The power of the Sword being for defence of the Lawes by punishing violators and protecting subjects it is subservient to Government and must needs belong to him who is entrusted with the Government as a necessarie requisite without which he cannot performe his trust Pos 2 2. As it is an appendix to the power of Government and goes along with it so it goes under the same termes belonging to the Prince as the other doth sc absolutely to use at will where the Monarchie is absolute or with limitation to use according to Law where the Monarchy is limited so that in this Government the Armes and sword of the Kingdome is the Kings to a defined use committed to him viz For defence of the Lawes and Frame of Government established and not for arbitrary purposes or to enable Ministers to execute commands of meer Will Pos 3 3. The two Houses in virtue of the Legislative authority in part residing in them are interested in the preservation of Lawes and Government as well as the King And in case the King should misimploy that power of Arms to strengthen subverting Instruments Or in case the Lawes and government be in apparent danger the King refusing to use the sword to that end of preservation for which it was committed to him I say in this case the two Estates may by extraordinary and temporary Ordinance assume those Armes wherewith the King is entrusted and performe the Kings trust And though such Ordinance of theirs is not formally legall yet it is eminently legall justified by the very intent of the Architects of the Government when for these uses they committed the Armes to the King And no doubt they may command the strength of the Kingdome to save the being of the Kingdome for none can reasonably imagine the Architectonicall Powers when they committed the power of government and Armes to one to preserve the Frame they had composed did thereby intend to disable any much lesse the two Estates from preserving it in case the King should faile to doe it in this last need And thus doing the Kings Worke it ought to be interpreted as done by his Will because as the Law is his Will so that the Law should be preserved is his Will which he expressed when he undertooke the government 'T is his deliberate Will and ought to be done though at any time he oppose by an after-Will for that is his sudden Will as Doctor Ferne himselfe Sect. 1. doth teach us to distinguish CHAP. VI. In what cases the other Estates may without or against Quest 6 the Kings Personall consent assume the Armes of the Kingdome WHo ever were the Authors of that Booke lately Sect. 1 published stiled Whether it be lawfull to take up armes against the Magistrate perverting his power to a wrong end Scripture and Reason pleaded for defensive Armes have laid new and over-large grounds for resistence Two Assertions they endevour to maintaine First those Governours whether supreme or others who under pretence of authority from Gods Ordinance disturb the quiet and peaceable life in Godlinesse and Honesty are farre from being Gods Ordinance in so doing Sect. 3. Secondly This Tyranny not being Gods Ordinance they which resist it even with Armes resist not the Ordinance of God Hereon Sect. 4. they free Christians even in the Apostles time and so under the Romane Emperours or any other Government from necessity of passive subjection in case of persecution affirming that the Christians in those first Persecutions had they been strong enough might have used Armes for defence against the Tyranny of their Emperours Their ground is from the Reasons used by the Apostle Rom. 13. where he commands subjection forbids resistence to the higher power because they are Gods ordinance his Ministers for praise to well-doers for terrour to evill doers But I must professe my self to dissent from them in this opinion conceiving that the Apostle in urging those Reasons drawne from the due ends of Power doth intend to presse them to subjection by shewing them what benefit comes to men by authority in its due use and not to shew them how far they are bound to be subject and in what cases they may resist For had he such a meaning at that time when the Governours
Sixthly in absolute Monarchy the person of the Monarch Assert 6 is above the reach of just force and positive resistance for such a full resignation of mens selves to his will and power by the irrevocable oath and bond of politicall contract doth make the person as sacred as the Unction of Saul or David In such a State all lawful power is below him so that he is uncapable of any penall hand which must be from a superiour or it is uniust I have bin the longer on this absolute Monarchy because though it doth not concerne us yet it will give light to the stating of doubts in governments of a more restrained nature for what is true here in the full extent of power is there also as true within the compasse of their power Sect. 4 In moderate or limited Monarchy it is an enquiry of some weight to know What makes a Monarchy limited What it is which constitutes it in the state of a limited Monarchy First A Monarchy may be stinted in the exercise of its Assert 1 power and yet be an absolute Monarchy as appeared before in our distinction of absolute Monarchy If that bounds be a subsequent act and proceeding from free will and grace in the Monarch for it is not the exercise but the nature and measure of power wherewith he is radically invested which denominates him a free or conditionate Monarch Assert 2 Secondly I take it that a limited Monarch must have his bounds of power ab externo not from the free determination of his owne will And now Kings have not divine words and binding Lawes to constitute them in their Soveraignty but derive it from ordinary providence the sole meane hereof is the consent and fundamentall contract of a Nation of men which consent puts them in their power which can be no more nor other then is conveyed to them by such contract of subiection This is the root of all soveraignty individuated and existent in this or that person or family till this come and lift him up he is a private man not differing in state from the rest of his brethren but then he becomes another man his person is sacred by that soveraignty conveyed to it which is Gods ordinance and image The truth hereof will be more fully discovered when we come to speake of Elective and Successive Monarchy Assert 3 Thirdly He is then a limited Monarch who hath a Law beside his owne will for the measure of his power First the supreme power of the State must be in him so that his power must not be limited by any power above his for then hee were not a Monarch but a subordinate magistrate Secondly this supreme power must be restrained by some Law according to which this power was given and by direction of which this power must act else he were not a limited Monarch that is a liege Soveraigne or legall King Now a Soveraignty comes thus to be legall or defined to a rule of Law either by originall constitution or by after-condescent By originall constitution when the society publike conferres on one man a power by limited contract resigning themselves to his government by such a Law reserving to themselves such immunities In this case they which at first had power over themselves had power to set their owne termes of subiection and hee which hath no title of power over them but by their act can de jure have no greater then what is put over to him by that act By after-condescent viz. when a Lord who by conquest or other right hath an absolute arbitrary power but not liking to hold by such a right doth either formally or virtually desert it and take a new legall right as judging it more safe for him to hold by and desirable of the people to be governed by This is equivalent to that by originall constitution yea is all one with it for this is in that respect a secondary originall constitution But if it be objected that this being a voluntary condescent is an act of grace and so doth not derogate from his former absolutenesse as was said before of an absolute Monarch who confines himselfe to governe by one rule I answer This differs essentially from that for there a free Lord of grace yeelds to rule by such a Law reserving the fulnesse of power and still requiring of the people a bond and oath of utmost indefinite subjection so that it amounts not to a limitation of radicall power whereas here is a change of title and a resolution to be subiected to in no other way then according to such a frame of government and accordingly no other bond or oath of allegeance is required or taken then according to such a Law this amounts to a limitation of radicall power And therefore they speak too generally who affirme of all acts of grace proceeding from Princes to people as if they did not limit absolutenesse 'T is true of acts of grace of that first kinde but yet you see an act of grace may be such a one as may amount to a resignation of that absolutenesse into a more milde and moderate power unlesse we should hold it out of the power of an absolute Lord to be other or that by free condescent and act of grace a man cannot as well part with or exchange his right and title to a thing as define himselfe in the use and exercise which I thinke none will affirme Sect. 5 In all Governments of this allay and legall Constitution there are three Questions of speciall moment to be considered How farre subiect oâ— is due in a limited Monarchy First How farre subjection is due As farre as they are Gods Ordinance as farre as they are a power and they are a power as farre as the Contract fundamentall from which under God their authority is derived doth extend As absolute Lords must be obeyed as farre as their Will enjoynes because their Will is the measure of their Power and their subjects Law so these in the utmost extent of the Law of the Land which is the measure of their power and their subjects duty of obedience I say so farre but I doe not say no further for I believe though on our former grounds it clearely followes that such Authority transcends its bounds if it command beyond the Law and the Subject legally is not bound to subjection in such case yet in Conscience a Subject is bound to yeeld to the Magistrate even when he cannot de jure challenge obedience to prevent scandall or any occasion of slighting the power which may sometimes grow even upon a just refusall I say for these causes a subject ought not to use his liberty but morem gerere if it be in a thing in which he can possibly without subversion and in which his act may not be made a leading case and so bring on a prescription against publique Liberty Sect. 6 How farre it is Lawfull to resist Secondly how farre
three undertake to doe them it is invalid it is no binding Act for in this case all three have a free Negative voice and take away the priviledge of a Negative Voice so that in case of refusall the rest have power to doe it without the third then you destroy that Third and make him but a Looker on So that in every mixed Government I take it there must be a necessity of concurrence of all three Estates in the production of Acts belonging to that power which is committed in common to them Else suppose those Acts valid which are done by any major part that is any two of the three then you put it in the power of any two by a confederacy at pleasure to disanull the third or suspend all its Acts and make it a bare Cypher in Government Assert 3 Thirdly in such a composed State it the Monarch invade the power of the other two or run in any course tending to the dissolving of the constituted frame they ought to employ their power in this case to preserve the State from ruine yea that is the very end and fundamentall aime in constituting all mixed Policies not that they by crossing and jarring should hinder the publike good but that if one exorbitate the power of restraint and providing for the publike safety should be in the rest and the power is put into divers hands that one should counterpoize and keep even the other so that for such other Estates it is not onely lawfull to deny obedience and submission to illegall proceedings as private men may but it is their duty and by the foundations of the Government they are bound to prevent dissolution of the established Frame Assert 4 Fourthly the Person of the Monarch even in these mixed Formes as I said before in the limited ought to be above the reach of violence in his utmost exorbitances For when a People have sworne allegeance and invested a Person or Line with Supremacy they have made it sacred and no abuse can devest him of that power irrevocably communicated And while he hath power in a mixed Monarchy he is the Universall Soveraigne even of the other limiting States so that being above them he is de jure exempt from any penall hand Assert 5 Fifthly that one inconvenience must necessarily be in all mixed Governments which I shewed to be in limited Governments there can be no Constituted Legall Authoritative Judge of the fundamentall Controversies arising betwixt the three Estates If such doe arise it is the fatall disease of these Governments for which no salve can be prescribed For the established being of such authority would ipso facto overthrow the Frame and turne it into absolutenesse So that if one of these or two say their power is invaded and the Government assaulted by the other the Accused denying it it doth become a controversie of this question there is no legall Judge it is a case beyond the possible provision of such a Government The Accusing side must make it evident to every mans Conscience In this case which is beyond the Government the Appeale must be to the Community as if there were no Government and as by Evidence mens Consciences are convinced they are bound to give their utmost assistance For the intention of the Frame in such States justifies the exercise of any power conducing to the safety of the Universality and Government established PART II. Of this particular MONARCHY CHAP. I. Whether the Power wherewith our Kings are invested be an Absolute or Limited and Moderated Power Sect. 1 HAving thus far proceeded in generall before we can bring home this to a stating of the great controversie which now our sins Gods displeasure and evill turbulent men have raised up in our lately most flourishing but now most unhappy Kingdome Wee must first looke into the Frame and Composure of our Monarchy for till we fully are resolved of that we cannot apply the former generall Truths nor on them ground the Resolution of this ruining contention Concerning the Essentiall Composure of this Government that it is Monarchicall is by none to be questioned but the enquiry must be about the Frame of it And so there are seven great questions to be prosecuted Quest 1. stated First whether it be a Limited Monarchy or Absolute Here the question is not concerning Power in the Exercise but the Root and being of it for none will deny but that the way of Government used and to be used in this Realme is a designed way Onely some speake as if this Definement were an act of Grace from the Monarchs themselves being pleased at the suit and for the good of the People to let their power run into act through such a course and current of Law whereas if they at any time shall thinke fit on great causes to vary from that way and use the full extent of their power none ought to contradict or refuse to obey Neither is it the question Whether they sin against God if they abuse their power and run out into acts of injury at pleasure and violate those Lawes which they have by Publike Faith and Oath promised to observe for none will deny this to be true even in the most absolute Monarch in the world But the point controverted is punctually this Whether the Authority which is inherent in our Kings be boundlesse and absolute or limited and determined so that the acts which they doe or command to be done without that compasse and bounds be not onely sinfull in themselves but invalid and non-authoritative to others Now for the determining hereof I conceive and am in Sect. 2 my Judgement perswaded Assert that the Soveraignty of our Kings is radically and fundamentally limited and not onely in the Use and Exercise of it And am perswaded so on these grounds and Reasons First Because the Kings Majesty himselfe who best Reas 1 knowes by his Councell the nature of his own power sayes that a Declar from Newmarket Mart. 9. 1641 the Law is the measure of his power which is as full a concession of the thing as words can expresse If it be the measure of it then his power is limited by it for the measure is the limits and bounds of the thing limited And in his Answer to both the Houses concerning the Militia speaking of the men named to him sayes If more power shall be thought fit to be granted to them then by Law is in the Crowne it selfe His Maiesty holds it reasonable that the same be by some Law first vested in him with power to transferre it to the these persons c. In which passage it is granted that the Powers of the Crown are by Law and that the King hath no more then are vested in him by Law Reas 2 Secondly because it is in the very Constitution of it mixed as I shall afterwards make it appeare then it is radically limited for as I shewed before every mixed Monarchy is limited
though not on the contrary for the necessary connexion of other power to it is one of the greatest limitations A subordination of Causes doth not ever prove the supreme Cause of limited virtue a co-ordination doth alwayes Reas 3 Thirdly I prove it from the ancient ordinary and received denominations for the Kings Majesty is called out Liege that is Legall Soveraigne and we his Liege that is his Legall Subjects what doe these names argue but that his Soveraignty and our subjection is legall that is restrained by Law Reas 4 Fourthly had we no other proofe yet that of Prescription were sufficient In all ages beyond record the Lawes and Customes of the Kingdome have been the Rule of Government Liberties have been stood upon and Grants thereof with limitations of Royall power made and acknowledged by Magna Charta and other publike and solemne acts and no Obedience acknowledged to be due but that which is according to Law nor claimed but under some pretext and title of Law Reas 5 Fifthly the very Being of our Common and Statute Lawes and our Kings acknowledging themselves bound to governe by them doth prove and prescribe them Limited for those Lawes are not of their sole composing nor were they established by their sole Authority but by the concurrence of the other two Estates so that to be confined to that which is not meerly their owne is to be in a limited condition Pleaders for defensive armes Sect. 2. 4. Some there be which have lately written on this subject who take another way to prove our Government limited by Law viz. by denying all absolute Government to be lawfull affirming that Absolute Monarchy is not at all Gods Ordinance and so no lawfull power secured from resistance What is their ground for this God allowes no man to rule as he list nor puts mens lives in the pleasure of the Monarch It is a power arbitrary and injurious But I desire those Authors to consider that in absolute Monarchy there is not a resignation of men to any Will or list but to the reasonable Will of the Monarch which having the Law of reason to direct it is kept from injurious acts But see for defence of this Government Part 1. cap. 2. Having set downe those Reasons on which my Judgement Sect. 3 is setled on this side I will consider the maine Reasons wherby some have endeavoured to prove this Government to be of an absolute nature and will shew their invalidity Many Divines perhaps inconsiderately perhaps wittingly for self ends have beene of late yeares strong Pleaders for Absolutenesse of Monarchicall Power in this Land and pressed Obedience on the Consciences of People in the utmost extremity which can be due in the most absolute Monarchy in the world but I seldome or never heard or read them make any difference of Powers but usually bring their proofes from those Scriptures where subjection is commanded to the higher Powers and all resistence of them forbidden and from Examples taken out of the manner of the government of Israel and Judah as if any were so impious to contradict those truths and they were not as well obeyed in Limited Government as in Absolute or as if Examples taken out of one Government do alwayes hold in another unlesse their aime were to deny all distinction of Governments and to hold all absolute who have any where the supreme power conveyed to them Among these I wonder most at that late discourse of Dr. Ferne who in my Judgement avoucheth things inconsistent and evidently contradictory one to the other For in his Preface he acknowledges our Obedience to be limited and circumscribed by the Lawes of the Land and accordingly to be yeelded or denied to the higher Power and that he is as much against an absolute Power in the King and to raise him to an arbitrary way of Government as against resistence on the Subjests part also that his power is limited by Law Sect. 5. Yet on the other side he affirmes That the King holds his Crown by conquest that it is descended to him by three Conquests Sect. 2. that we even our Senate of Parliament hath not so much plea for resistence as the ancient Romane Senate had under the Romane Emperours whose power we know was absolute Sect 2. that in Monarchy the judgement of many is reduced ro one that Monarchy settles the chief power and finall Judgment in one Sect. 5 what is this but to confesse him limited and yet to maintain him absolute Arguments on the contrary dissolved But let us come to the Arguments First say they our Kings came to their right by Conquest yea saies the Dr. by three Conquests He meanes the Saxons Danes and Normans as appears afterwards Therefore their right is absolute Here that they may advance themselves they care not though it be on the ruine of publique liberty by bringing a whole Nation into the condition of conquered slaves But to the Argument 1. Suppose the Antecedent true the Consequution is not alwaies true for as is evident before in the first Part. All Conquest doth not put the Conqueror into an absolute right He may come to a right by Conquest but not sole Conquest but a partiall occasioning a Right by finall Agreement and then the right is specificated by that fundamentall agreement Also he may by sword prosecute a claime of another nature and in his war intend only an acquiring of that claimed right and after conquest rest in that Yea farther he may win a Kingdome meerly by the Sword and enter on it by right of Conquest yet considering that right of conquest hath too much of force in it to be safe and permanent he may thinke conquest the best meane of getting a Kingdome but not of holding and in wisdome for himselfe and posterity gaine the affections of the people by deserting that Title and taking a new by Politique agreement or descend from that right by fundamentall grants of liberties to the people and limitations to his own power but these things I said in effect before in the first part only here I have recalled them to shew what a non sequitur there is in the Argument But that which I chiefly intend is to shew the infirmity or falsehood of the Antecedent it is an Assertion most untrue in it selfe and pernitious to the State Our Princes professe no other way of comming to the Crown but by right of succession to rule free subjects in a legall Monarchy All the little shew of proofe these Assertors have is from the root of succession So William commonly called the Conquerour For that of the Saxons was an expulsion not a Conquest for as our Histories record They comming into the Kingdome drove out the Britaines and by degrees planted themselves under their Commanders and no doubt continued the freedome they had in Germany unles we should thinke that by conquering they lost their own Liberties to the Kings for whom they conquered and
expelled the British into Wales Rather I conceive the Originall of the subjects libertie was by those our fore-fathers brought out of Germany Where as Tacitus reports Tacit. de Morib German Sect. 3. 5. nec Regibus infinita aut libera potestas Their Kings had no absolute but limited power and all weighty matters were dispatched by generall meetings of all the Estates Who sees not here the antiquity of our Liberties and frame of Government so they were governed in Germany and so here to this day for by transplanting themselves they changed their soyl not their manners and Government Then that of the Danes was indeed a violent Conquest and as all violent rules it lasted not long when the English expelled them they recovered their Countrey and Liberties together Thus it is clear the English Libertie remained to them till the Norman Invasion notwithstanding that Danish interruption Now for Duke William I know nothing they have in him but the bare stile of Conqueror which seems to make for them The very truth is and everie intelligent reader of the Historie of those times will attest it that Duke William pretended the grant and gift of King Edward who died without children and he came with forces into this Kingdome not to Conquer but make good his Title against his enemies his end of entring the Land was not to gaine a new absolute Title but to vindicate the old limited one whereby the English Saxon Kings his Predecessors held this Kingdome Though his Title was not so good as it should be Cambâ—â—n Britan. Normaâ— yet it was better then Harolds who was onely the Sonne of Goodwyn Steward of King Edwards house Whereas William was Cousen to Emma mother to the said King Edward by whom he was adopted and by solemne promise of King Edward was to succeed him Of which promise Harold himselfe became surety and bound by oath to see it performed Here was a faire Title especially Edgar Atheling the right Heire being of tender age and dis-affected by the people Neither did he proceed to a full Conquest but after Harola who usurped the Crown was slain in battle and none to succeed him the Throne being void the people chose rather to submit to William and his Title then endure the hazzard of ruining war by opposing him to set up a new King It is not to be imagined that such a Realme as England could be conquered by so few in such a space if the peoples voluntary acceptance of him and his claime had not facilitated and shortned his undertaking Thus we have it related in Mr. Cambdâ—n that before Harold usurped the Crown most men thought it the wisest Policie to set the Crown on Williams head that by performing the Oath and promise a Warre might be prevented And that Harold by assuming the Crown provoked the whole Clergy and Ecclesiasticall State against him and we know how potent in those daies the Clergy were in State affaires Also that after one battle fought wherein Harold was slain he went to London was received by the Londoners and solemnly inaugurated King as unto whom by his own saying the Kingdome was by Gods Providence appointed and by vertue of a gift from his Lord and Cousen King Edward the glorious granted so that after that battell the remainder of the war was dispatched by English forces and Leaders But suppose he did come in a Conqueror yet he did not establish the Kingdome on those termes but on the old Lawes which he reteyned and authorized for himselfe and his Successors to governe by Indeed after his settlement in the Kingdome some Norman Customes he brought in and to gratify his souldiers dispossessed many English of their estates dealing in it too much like a Conqueror but the triall by twelve men and other fundamentalls of Government wherein the English freedome consists he left untouched which have remained till this day On the same Title he claimed and was inaugurated was he King which was a title of rightfull succession to Edward therfore he was indeed King not as Conqueror but as Edwards Successor and on the same right as he and his Predecessors held the Crowne As also by the grant of the former Lawes and forme of Government he did equivalently put himselfe and successors into the State of legall Monarchs and in that Tenure have all the Kings of this Land held the Crown till this day when these men would rake up and put a Title of Conquest upon them which never was claimed or made use of by him who is the first root of their succession Another reason which they produce is the successive nature Sect. 4 of this Monarchy for with them to be elective and limited and to be successive and absolute are equipollent They conceive it impossible that a Government should be Hereditary and not absolute But I have enough made it appear Part 1. Chap. 2. Sect. 6. That succession doth not prove a Monarchie absolute from limitation though it proves it absolution from interruption and discontinuance during the being of that succession to which it is defined And that which they object that our Kings are actually so before they take the Oath of governing by Law and so they would be did they never take that Oath wherefore it is no Limitation of their royall power is there also answered in the next Sect. and that so fully that no more need be said The same Law which gives the King his Crown immediatly upon the decease of his Predecessor conveyes it to him with the same Determinations and Prerogatives annexed with which his Progeintors enjoyed it so that he entring on that Originall Right his subjects are bound to yeild obedience before they take any Oath And he is bound to the Lawes of the Monarchy before he actually renewes the bond by any Personall Oath There is yet another argument usually brought to this purpose taken from the Oath of Allegiance but of that I shall have occasion to speake hereafter CHAP. II. Supposing it be in the Platforme limited Quest 2. Wherein and how far forth it is limited and defined Pos 1 I Conceive it fundamentally limited in five particulars First in the whole latitude of the Nomotheticall power so that their power extends not to establish any Act which hath the Being and state of a Law of the Land nor give an authenticke sense to any Law of doubtfull and controverted meaning solely and by themselves but together with the concurrent Authority of the two other Estates in Parliament Pos 2 Secondly in the Governing Power there is a confinement to the Fundamentall Common Lawes and to the superstructive Statute Lawes by the former concurrence of Powers enacted as to the Rule of all their Acts and Executions Pos 3 Thirdly in the power of constituting Officers and meanes of governing not in the choice of Persons for that is intrusted to his Judgement for ought I know but in the constitution of Courts of Judicature For as
evident that a Court is the seat and subject of Authority and power and not barely of counsell and advice Object 2 Secondly the two Houses together with the King are the supreme Court of the Kingdome but taken divisely from the King it is no Court and consequently hath no power Sol. Suppose them no entire Court divided from the King yet they are two Estates of the three which make up the supreme Court so that they have a power and authority though not complete and sufficing to perfect an Act without the concourse of the third For it appeares by the Acts of that Court that every of the three Estates hath a Legislative power in it every Act being enacted by the Kings most excellent Majesty and by the Authority of the Lords and Commons assembled in Parliament Sect. 3 Thirdly they have an authority but in subordination to Object 3 the King and derived from him as his Parliament Indeed this is a maine Question and hath very weighty Arguments on both sides Whether the authority of the two Houses be derived from the King viz. Whether the authority of both the Houses be a subordinate authority and derived from the King as its originall Three Reasons seeme strong for the affirmative First because it is his Parliament so called and acknowledged If his Court then the power whereby they are a Court is his power derived from him as the power of other Courts is Secondly because he hath the power of calling and dissolving it Thirdly because he is acknowledged in the Oaths of Allegeance and Supremacy to be the Head and of supreme authority in the Kingdome and all subject to him And whereas some make answere that he is Singulis major but Vniversis minor Treatise entitituled A fuller Answer to Dr. Ferne. so the Answerer to Doctor Ferne I wonder that the Proposition of the Observator that the King is Vniversis minor should be so much exploded Every member scorsiâ—â— is a subject but all collection in their houses are not And hee sayes simply the Houses are co-ordinate to the King nor subordinate that the Lords stile Comites or Peeres implies in Parliament a co-ordinative society with his Majesty in the Government I conceive this Answerer to avoid one extreme falls on another for this is a very overthrow of all Monarchy and to reduce all Government to Democracy For looke where the apex potestatis is there is the Government Also it is against Common Reason For the King is he not King of the Kingdome and what is the Kingdome but all united all the particulars knit together in one body politick so that if he be King of the Kingdome he is Vniversis major too for the King is major and the Kingdome is the united universe of the People Thus those expressions are some of them false some though secundum quid true yet spoken simply and in that manner are scandalous and incompatible to Monarchy Thus you see what may be said on the one side to prove the King to be the originall of all power even of that which is in the Houses of Parliament assembled On the other side are as weighty Arguments to prove the contrary viz. That the two Houses authority is not dependent nor derived from the Royall power First the authority of the Houses being Legislative is the supreme and so cannot bee derived Three concurrent Powers producing one supreme act as con-cause joint causes of the same highest effect cannot have a subordination among themselves in respect of that casualty it not being imaginable how a power can cause the supreme effect and yet be a subordinate and derived power Secondly the end of constituting these two Estates being the limiting and preventing the excesses of the third their power must not be totally dependent and derived from the third for then it were unsuitable for the end for which it was ordained For to limit an Agent by a power subordinate and depending on himself is all one as to leave him at large without any limitation at all Thirdly that which hath beene spoken of a mixed Monarchy doth fully prove that the two other powers which concurre with the Monarch to constitute the mixture must not be altogether subordinate to it and derived from it I must professe these Reasons to prevaile with me that I cannot conceive how the authority of the two Houses can in the whole being of it be a dependent and derived power That we may find out the truth amidst this potent contradiction Sect. 4 of both sides Resolution of the Question recourse must be had to the Architecture of this Government whereof I must declare my self to be so great an Admirer that what ever more then humane wisedom had the contriving of it whether done at once or by degrees found out and perfected I conceive it unparalleld for exactnesse of true policy in the whole world such a care for the Soveraignty of the Monarch such a provision for the liberty of the People and that one may bee justly allayed and yet consist without impeachment of the other that I wonder how our Forefathers in those rude unpolished times could attain such an accurate composure First then suppose a people either compelled to it by conquest or agreeing to it by free consent Nobles and Commons set over themselves by publike compact one Soveraigne and resigne up themselves to him and his heires to be governed by such and such Fundamentall Lawes there 's a supremacy of power set up though limited to one course of exercise Secondly then because in all Governments after cases will come it requiring an addition of Lawes suppose them covenanting with their Soveraigne that if cause be to constitute any other Lawes hee shall not by his sole power doe that worke but they reserve at first or afterwards it is granted them which is all one a hand of concurrence therein that they will be bound by no Lawes but what they joyne with him in the making of Thirdly because though the Nobles may personally convene yet the Commons being so many cannot well come together by themselves to the doing of such a worke it be also agreed that every Corporation of the Commons shall have power to depute one or more to be for the whole in this publike legislative businesse that so the Nobles by themselves the Commons by their Deputies assembling there may be representatively the whole body having Commission to execute that reserved authority for establishing new Lawes Fourthly because the occasion and need of making new Lawes and authentick expounding the old would not be constant and perpetuall and it would carry an appearance of a Government in which were three Heads and chiefe Powers they did not stablish these Estates to be constantly existent but occasionally as the causes for which they were ordained should emerge and happen to be Fifthly because a Monarchy was intended and therefore a Supremacy of power as farre as possible must be
reserved for one it was concluded that these two Estates should be Assemblies of his Subjects sworne to him and all former Lawes the new which by agreement of Powers should be enacted were to be his Lawes and they bound to obey him in them as soone as established And being supposed that he who was to governe by the Lawes and for the furtherance of whose Government the new Lawes were to be made should best understand when there was need and the assembling and dissolving the two Estates meeting was a power of great priviledge it was put into the Princes hand by writ to convocate and bring to existence and to adjourne and dismisse such meetings Sixthly in processe of time Princes not caring much to have their Government looked into or to have any power in act but their own took advantage of this power of convocating those Estates and did more seldome then need required make use of it whereon provision was made and a time set within which an Assembly of Parliament was to be had Now when you have made these suppositions in your minde you have the very modell and platforme of this Monarchy and we shall easily find what to answer to the arguments before produced on either side For first it is his Parliament because an assembly of his subjects convocated by his Writ to be his Councell to assist him in making Lawes for him to govern by yet not his as other Courts are altogether deriving their whole authority from the fulnesse which is in him Also his power of assembling and dissolving proves him thus far above them because in their existence they depend on him but their power and authority quoad specificationem the being and kind of it is from originall constitution for they expect no Commission and authority from him more then for their meeting and reducing into existence but existing they worke according to the priviledges of their constitution their acts proceeding from their conjunct authority with the Kings not from its subordination to the Kings The oath of Allegeance binds them and respects them as his subjects to obey him governing according to established Lawes it supposes and is built upon the foundations of this Government and must not be interpreted to overthrow them he is thereby acknowledged to be supreme so far as to rule them by Lawes already made not so far as to make Lawes without them so that it is no derogation to their power and I beleeve of these things none can make any question Therein consists the accurate Judgement of the Contrivers of this Forme they have given so much into the hands of the soveraign as to make him truly a Monarch and they have reserved so much in the hands of the two Estates as to enable them to preserve their owne liberty CHAP. IIII. Quest 4 How farre forth it is mixed and what parts of the Power are referred to a mixed Principle I Shall be the briefer in this because an answer to it may be easily collected out of the precedent Questions for he who knowes how farre this Government is limited will soon discerne how farre it is mixed for the Limitation is mostly affected by the mixture Three points of mixture but distinctly I conceive that there are three parts of the power referred to the joint concourse of all three Estates So that either of them not consenting or suspending its influence the rest cannot reduce that power ordinarily and legally into act The first is the Nomotheticall power understanding by it the power of making and authentick expounding Lawes so that I believe an act cannot have the nature and forme of a Law of the Land if it proceed from any one or two of these without the positive concurrence of the third Secondly The power of imposing taxes and payments on mens estates that the King by himself cannot assume mens properties by requiring impositions not granted him by Law is often confested And that the other Estates cannot doe it by themselves I conceive it as unquestionable For it were strange to give that to the secondary and assisting Powers which is denied to the Soveraigne and principall If it be objected that every Corporation electing Deputies and authorizing them to be vice totius Communitatis do thereby grant them power and entrust them as to make laws to bind them so to dispose of any part of their estate either by rate or payment for the publique good I answer that they are by that deputation enabled as for one so for the other that is according to the fundamentall usuage of the Kingdome that is by the joint consent of the other estates for though the house of Commons is chosen by the people and they represent the people yet the representation doth not give them a power which was not in the people Now the people have no power to doe an act which either directly or by consequence doth put it in the will and pleasure of any one or two of the Estates to overthrow the other But this power of opening and shutting the Purse of the Kingdome is such a power that if it be in one or two of the Estates without the third then they by that power might necessitate that other to doe any act or disable it from its owne defence This and the Legislative power have such a neernesse that they cannot be divided but must be in the same subject this is so great a power that put it absolutely in any Estate single you make that Estate in effect absolute making the rest dependent and beholding to it for their subsistence Thirdly the power of dispatching the affaires of the Kingdome which are of greatest difficulty and weight the ardua regni which the Writ for convocating the other Estates doth mention supposing thereby that such difficulties are not to be dispatched by the power of one alone for if they were why then are the two other convocated to be assisting I acknowledge many matters of great moment may be done by the Regall power and in such case it may be said that the other Estates are gathered ad molius traâ—sigendum that the advise and sense of the Community may be for direction But I conceive there be two sorts of affaires which ought not to be transacted without the concurrence of all three First such as concerne the publike safety and weale so far as stable detriment or advantage comes to the whole body by the well or ill carriage thereof for then there is the same reason as in making new Lawes For why was not the power of making any new Lawes left in the hands of one but reserved for the concurrence of all three save because the end of the Architects was that no new thing which was of so much concernment as the stable good and dammage of the Kingdome should be introduced without the consent and advice of the whole so that if any businesse be of that moment that it is equipollent to a Law in
of Cut-throats even though Saul himselfe were in presence This the Doctor sees plainly and therefore shuffles it off by saying His example is extraordinary as if he were not a present Subject because he was designed by Gods revealed counsell to be a future King And he confesses Elisha's example of shutting the doore against the Kings messenger proves personall defense against sudden illegall assaults of messengers which is the thing in Question Sect 4 Let us now view the strength of what is said against resistence whether any thing comes home against this Assertion Arguments on the contrary dissolved The Doctors proofes from the old Testament come not to the matter Moses and afterwards the Kings were of Gods particular designation setting them absolutely over the people on no condition or limitation so that did they prove any thing yet they concerne not us respecting a Government of another nature But particularly that of Corah and the Princes rebelling against Moses is not to the matter it was a resistence of Moses owne Person and Office and doubtlesse penury of other proofes caused this and the rest here to be alledged For that 1 Sam. 8 18. how inconsequent is it to say the people should cry unto the Lord therefore they had no other meanes to helpe them but cries to God though I confesse in that Monarchy they had not That speech 1 Sam. 26 9. was most true there and is as true here but not to the purpose being spoken of the Kings owne Person But the maine authority brought against resistence is that Rom. 13. and on that Doctor Ferne builds his whole discourse Let us therefore something more largely consider what is deduced out of that Text. First he supposes the King to be the Supreme in Saint Peter and the Higher power in Saint Paul Secondly hee collects All persons every soule is forbidden to resist Thirdly that then was a standing Senate which not long before had the supreme Power in the Romane State It is confessed but that they could challenge more at that time when Saint Paul writ then our great Councell will or can I deny For that State devolving into Monarchy by Conquest they were brought under an Absolute Monarchy the Senate it selfe swearing full subjection to the Prince his Edicts and Acts of Will were Lawes and the Senates consent onely pro forma and at pleasure required He who reads Tacitus cannot but see the Senate brought to a condition of basest servitude and all Lawes and Lives depending on the will of the Prince I wonder then the Doctor should make such a parallel Indeed the Senate had been far more then ever our Parliaments were or ought to be but now that was far lesse then our Parliament hath been or I hope ever will be They were become the sworne Vassals of an absolute Emperour ours the sworne Subjects of a Liege or Legall Prince Fourthly he sayes then was more cause of Resistence when Kings were Enemies to Religion and had overthrown Lawes and Liberties I answere There were no causes for Resistence Not their enmity to Religion had they but a legall power because Religion then was no part of the Laws and so its violation no subversion of established government And for the overthrow of Lawes and Liberties that was past and done and the government new the Senate and all the rest actually sworne to absolute Principality Now an Ordinance of absolute Monarchy was constituted the sacred bond of an Oath had made it inviolate But what would he inferre hence all being granted him Sure this he doth intend That every soule among us severall and conjoyned in a Senate must be subject for conscience must not resist under paine of Damnation All this and what ever besides he can justly infer out of that Text we readily grant But can any living man hence collect that therefore no resistence may be made to fellow-subjects executing destructive illegall acts of the Princes will in a legall Monarchy Will he affirme that the Ordinance of God is resisted and Damnation incurred thereby Gods Ordinance is the Power and the Person invested with that power but here force is offered to neither as before I have made it appeare And herein we have B. Bilsoâ— consenting where he sayes Biâ—sâ—n of subjeâ—â— p 94 280. that the superiour power here forbidden to be resisted is not the Princes will against his Lawes but agreeing with his Lawes I thinke the day it selfe is not more cleare then this satisfaction to all that can bee concluded out of that Text so the foundation of all that discourse is taken from it if his intent were thence to prove unlawfulnesse of Resistence of Instruments of Arbitrarinesse in this Kingdome Let us also consider the force of his Reasons whether they impugne this point in hand He sayes such power of resistence would be no fit meanes of safety to a State but prove a remedy worse then the diseases His Reasons first because it doth tend to the overthrow of that order which is the life of a Common-wealth it would open a way to People upon the like pretences to resist and even overthrow power duly administred 2 It may proceed to a change of government 3. It is accompanied with the evills of Civill-Warre 4. On the same ground the two Houses proceed against the King may the people proceed to resistence against them accusing them not to discharge their trust Lastly seeing some must be trusted in every State It is reason the highest and finall trust should be in the highest power These are his main reasons on which he builds his conclusion against resistence To his first I say it were strange if resistence of distructive disorder should tend to the overthrow of Order It may for the time disturbe as Physick while it is in working disturbes the naturall bodie if the peccant humors make strong opposition but lure it tends to health and so doth this resistence of disorder to Order Neither would it open a way for the people to violate the Powers for doing right can open no way to the doing of wrong If any wicked seditious spirits should make use of the Vail of Justice to cover unnaturall Rebellion Shall a peoples right and liberty be taken from them to prevent such possible abuse Rather let the foulnesse of such pretences discover it selfe so God and good men will abhorre them such Cloakes of Rebellion have in former ages been taken off and the Authors brought to just confusion without the expence of the liberties of this Kingdome To the second must not Instruments be resisted which actually intend and seeked a chang of Government because such resistence may proceed to a chang of Government Is not an unlikely possibility of change to be hazarded rather then a certaine one suffered But I say It cannot proceed to a chang of Government unles it exceed the measure of lawfull resistence yea it is impossible that resistence of Instruments should ever proceed to
did altogether crosse those ends of their Ordination he had taught them rather a Doctrine of Resistence then Subjection shall we conceive that hee would presse subjection to Powers in the hands of Heathens and Persecutors if he had not intended they should passively be subject unto them even under those Persecutions Rather I approve the received Doctrine of the Saints in ancient and moderne times who could never finde this licence in that place of the Apostle and doe concurre with Master Burroughs Answ to Dr. Ferne Sect. 2. professing against resistence of authority though abused If those saies he who have power to make Lawes make sinfull Lawes and so give authority to any to force obedience we say here there must be either flying or passive Obedience And againe We acknowledge we must not resist for Religion if the Lawes of the land be against it But what doe they say against this In making such Lawes against Religion the Magistrates are not Gods ordinance and therefore to resist is not to resist Gods ordinance As an inferiour Magistrate who hath a Commission of Power for such ends is resistible if hee exceed his Commission and abuse his Power for other ends so Princes being Gods Ministers and having a deputed Commission from him to such ends viz. the promotion of godlinesse Peace Justice if they pervert their power to contrary ends may be resisted without violation of Gods ordinance That I may give a satisfactory answere to this which is the summe of their long discourse I must lay it downe in severall Assertions First I acknowledge Gods ordinance is not onely Power Assert 1 but Power for such ends sc the good of the People Secondly it is also Gods ordinance that there should be Assert 2 in men by publike consent called thereto and invested therein a power to choose the meanes the Lawes and Rules of government conducing to that end and a power of Judging in relation to those Lawes who be the well doers which ought to be praised and who the evill doers who ought to be punished This is as fully Gods ordinance as the former for without this the other cannot be performed Thirdly when they who have this finall civill Judicature Assert 3 shall censure good men as evill doers or establish iniquity by a Law to the encouragement of evill doers in this case if it be a subordinate Magistrate doth it appeale must bee made as Saint Paul did to the supreme if it be the supreme which through mistake or corruption doth mis-censure from whom there lyes no Civill Appeale then without resistence of that Judgement wee must passively submit And he who in his owne knowledge of innocency or goodnesse of his cause shall by force resist that man erects a Tribunal in his owne heart against the Magistrates Tribunal cleares himselfe by a private Judgement against a publike and executes his owne sentence by force against the Magistrates sentence which hee hath repealed and made void in his owne heart In unjust Censures by the highest Magistrate from whom there is no Appeale but to God the sentence cannot be opposed till God reverse it to whom we have appealed In the meane time vvee must suffer as Christ did notwithstanding his Appeale 1 Pet. 2.23 and so must wee notwithstanding our Appeale 1 Pet. 4 19. for he did so for our example If an Appeale to God or a censure in the Judgement of the condemned might give him power of resistence none would be guilty or submit to the Magistrates censure any further â—hen they please I desire those Authors before they settle their judgement in such grounds which I feare will bring too much scandall to weigh these particulars First their opinion takes away from the Magistrate the chiefe part of Gods ordinance sc povver of definitive judgement of Lawes and Persons who are the good and who the bad to be held so in Civill proceedings Secondly they justifie the Conscience of Papists Heretickes and grossest Malefactors to resist the Magistrate in case they be perswaded their cause is good Thirdly they draw men off from the commands of Patience under persecution and conforming to Christ and his Apostles in their patient enduring without verball or reall opposition though Christ could not have wanted power to have done it as he tells Peter Fourthly they deprive the Primitive and Moderne Martyrs of the glory of suffering imputing it either to their ignorance or disability Fifthly it is a wonder that sith in Christs and his Apostles time there was so much use of this power of resistence they would by no expresse word shew the Christians this liberty but condemne resistence so severely Sixthly there is in the case of the Parliament now taking up Armes no need of these offensive grounds Religion being now a part of our Nationall Law and cannot suffer but the Law must suffer with it Sect. 2 Now to the proposed Question I answere first Negatively sc 1. 1. When arms ought not to be assumed It ought not to be done against all illegall proceedings but such which are subversive and unsufferable Secondly not publike resistence but in excesses inducing publike evils for to repell private injuries of highest nature with publike hazzard and disturbance will not quit cost unlesse in a private case the common Liberty be strooke at Thirdly not when the government is actually subverted and a new forme though never so injuriously set up and the People already engaged in an Oath of absolute subjection for the remedy comes too late and the establishment of the new makes the former irrevocable by any justifiable power within the compasse of that Oath of God This was the case of the Senate of Rome in Saint Pauls time 2. When they may be assumed Secondly affirmatively I conceive three cases when the other Estates may lawfully assume the force of the Kingdome the King not joyning or dissenting though the same be by Law committed to him First when there is invasion actually made or imminently feared by a forraigne Power Secondly when by an intestine Faction the Lawes and Frame of government are secretly undermined or openly assaulted In both these cases the Being of the Government being endangered their trust binds as to assist the King in securing so to secure it by themselves the King refusing In extreme necessities the liberty of Voices cannot take place neither ought a Negative Voice to hinder in this exigence there being no freedome of deliberation and choice when the Question is about the last end Their assuming the sword in these cases is for the King whose Being as King depends on the Being of the Kingdome and being interpretatively his act is no disparagement of his Prerogative Thirdly in case the Fundamentall Rights of either of the three Estates bee invaded by one or both the rest the wronged may lawfully assume force for its owne defence because else it were not free but dependent on the pleasure of the other Also the suppression of
arise considerable in the course of handling both Now nothing remaines but to resolve the Conscience by this precedent light what to â—udge of the unhappy contention which now is broken out into open warre betweene the King and the two Houses But this depending on matter of fact is more fitly referred to every mans owne memory and Judgement and nothing is to be done but to acquaint himselfe with the certaine truth of those matters of fact and then to judge therof according to the former Rules To this issue the whole controversie is brought That the two Houses may lawfully resist by force of Armes all counsells and attempts of what men soever tending to the subversion of the established Frame of Government or themselves and their Fundamentall Priviledges which is equivalent to the other yea though they are warranted by the commands and personall presence of the King himselfe And that clearly this is no resistence of the higher power in our Government so no force be intended or used against the Kings owne Person nor doth it come within the censure of Saint Paul Rom. 13. nor any other Scripture nor right Reason grounded thereon so that the Conscience assured hereof hath nothing else to doe but to enquire whether the truth of Factlyes either in the Affirmative of the two Houses That the Kingdome was in imminent danger the King refusing to joyne with them for prevention of it when they assumed the Militia for defence Or else in the Kings Negative Much hath beene said on both sides to draw the Consciences of men to adherence and many no doubt have judged according to their pre ingaged affections Many Papers have I seene running out on both sides to unjustifiable extremes and have much holpen on the contention by making the breach wider yea I have read more said for them then I am perswaded notwithstanding the heat of the contention either will say for Sect. 2 themselves or can without the subversion of the other A debate upon the contention Now for a man to resolve his Conscience about the lawfulnesse or unlawfulnesse of this Warre the course is not to cry it downe indefinitely as a Resistence of Gods ordinance nor of the higher Power Nor to justifie it because the cause stood for is Religion and expurgation of in-crept corruptions in Church and State For all standing for Religion and Reformation is not a justifiable cause to take up Armes we having proved it before that in this Kingdome nothing can warrant it but apparent danger from destructive Counsellours and Instruments Neither is it enough to demand as Doctor Ferne doth Sect 6. Who were first in Armes for the other part will by their Almanack finde Armes and Forces gathered and employed before those in Hull Declar. of the Lords and Commons of Apr 3. 1642. but that is not the resolving enquiry it may fall out the defensive part may be first in Armes to prevent the ruine of counsells and Plots which are apparently contrived but not executed The resolving enquiry I thinke must be Whether at the Parliaments taking up of Armes the Common-wealth Frame of established Government or which is all one the Being and radicall Powers of Parliament were in apparent danger of subversion For if so then the Armes and Force used against the Counsellours or Agents thereof is proved lawfull by all the precedent discourse Now it will be alledged and is in part acknowledged His Majesties Answ to the Petit. of the houses March 26. 1642. that there was a grand intention and plot of altering the Government of this Kingdome and reducing it to an arbitrary way They will not say his Majestie was conscious of it but it was aimed at by many about him and in power with him whom it concerned to have him absolute By these men he was told that such things were Law which if they had bin so then he had bin absolute by law They will instance in the long and purposed disuse of Parliaments The arbitrary Taxes and Impositions on most of the Commodities of the Kingdome The encroachnent of the Arbitrary Courts upon the Legall The Imposition of Ship-money And the Judges opinion that the King had power to tax the subject in times of danger and that he is the sole Judge of that danger The raising an Army and forcing the subject to furnish the same with Coat and Conduct-money The intention of bringing up the Army to subvert or at best to awe and confine the Parliament to bounds of proceeding of their owne setting All this before or upon the beginning of the Parliament Then the evidences and proofes against the Earle of Strafford His Majesties comming with the terror of such an attendance into the House of Commons to demand such a number of Members Here is a succession of designes all before the least shew of resistence for his Majesties comming to the House was Iannuary 4. 1641. And the first Petition to his Majestie about the Militia was not till the 26. of the same And their resolution to settle it by themselves His Majesties refusing was not till March 1. And among all these there is not one but tends to destroy the frame of Government Not that every one who had a hand in them did aime at such a destruction but looking on the designe it selfe and we must judge of mens intentions by the nature of their Counsells and enterprizes every one of them strikes at the foundation of this legall frame and tends to the introduction of Absolutenesse and Arbitrarinesse in the Soveraigne I acknowledge that since that time there is a Plea on both sides of danger of subversion The King withdrew from London and oft affirmes that He was driven thence and could no longer remaine in safety And the two Houses on the former designes plead a danger of subversion from evill Counsellours Both sides now complaine of danger and have taken up Armes to repell that danger but these complaints of danger and taking up of Armes by both sides was all since the succession of those fore-recited plots I know what hath been intended or done since the taking of Armes may be all affirmed to be for defense against danger the withdrawment of so many Members of both Houses the acts of hostility on both sides the taxing spoyling and undoing of thousands of innocent people all must be excused by necessity of Warre and self-defense But what can be said for all those Plots and Essaies which were the Parliaments first grounds of Feares and Forces Were they removed before they tooke up Armes and so their assuming them made causlesse and inexcusable You will say Those were the Plots of men in grace and authority about His Majesty and that the illegality of those proceedings being made knowne to him He disclaimes them professing solemnly he hath no intent but to governe by Law and acknowledges that the Law is the measure of his power But they doe tell you That they object nothing
A TREATISE OF MONARCHIE Containing two Parts 1. Concerning Monarchy in generall 2. Concerning this particular Monarchy Wherein all the maine Questions occurrent in both are stated disputed and determined And in the close the Contention now in being is moderately debated and the readiest meanes of Reconcilement proposed Done by an earnest Desirer of his Countries Peace LONDON Printed for John Bellamy and Ralph Smith and are to be sold at the three golden Lions in Corn-hill Anno Dom. 1643. THE PREFACE I Write not this Discourse to foment or heighten the wofull dissention of the Kingdome but if possible to cure or at least to allay it That former too many have done already this latter much too few When a Patient lies sicke under the destroying paroxismes of a Fever every stander-by will be telling his Medicine though he be no Physitian O then let no Sonne of this State account it presumption in me for putting in my judgement and speaking that which I conceive might if not remove yet mitigate this fatall distemperature of our common Mother at another time perhaps it might be censurable but in this exigence laudable Something I was full of which I conceited might doe good here I have produced it And now if any man can finde a better way to appeasement for the sake of peace let him speedily declare it I intend not these ensuing Disputes to any high-flowne judgements who looke downe on all mens but their owne to censure not to be informed nor to any which hath designes of his owne which on the opportunity of this Division hee meanes to follow nor to any who is already possessed by an opinion which hee resolves to make good But to the calme and impartiall spirit of every judicious peacefull man Let him weigh my Assertions by my grounds on which I build them and if he find them any where unsound let him shew mee in what and I will gladly and thankfully reforme my errour For as I love not obstinacy in groundlesse opinions in others so I would avoid it in my selfe I have not annexed my Name not that I am ashamed to owne what I conceive to be the truth but because I know who I am and that my Name could adde no estimation to the Treatise Nor do I desire it should They who search for Truth must regard Things not Persons Give me therefore the now common Liberty to goe namelesse many have taken it for worse ends If any condemn me for any thing here it must be for endevouring a thanklesse Moderation 'twixt two Extremes But I will detaine you no longer at the doore The Contents of the ensuing Treatise Part. 1. Of Monarchy in generall Cap. 1. Of Politicall Government IT s Originall How farre forth is is from God Sect. 1. It s end whether the end of government be the peoples good Sect. 2. It s division into severall sorts Sect. 3. Cap. 2. Of the division of Monarchy into absolute and limited Whether absolute Monarchy be a lawfull Government Sect. 1. Of three degrees of absolutenes in Monarchy Sect. 2. Whether Resistence be lawfull in absolute Monarchy Sect. 3. What it is which constituteth a Monarchy limited Sect. 4. How farre subjection is due in a limited Monarchy Sect. 5. How farre resistence is lawfull in a limited Monarchy Sect. 6. Who shall be Iudge of the excesses of a limited Monarch Sect. 7. Cap. 3. Of the division of Monarchy into elective and successive Elective and successive Monarchies what they are Sect. 1. Whether all Monarchy be originally from the peoples consent Sect. 2. Of Monarchy by divine Institution Sect. 3. Of Monarchy by prescription Sect. 4. Of Monarchy by Conquest Sect. 5. Whether Conquest can give a just Title Sect. 5. Whether a successive Monarch may not be also limited Sect. 6. Cap. 4. Of the division of Monarchy into simple and mixed Simple and mixed Monarchy what they are Sect. 1. What it is which constituteth a Monarchy mixed Sect. 2. How farre the Princes power extends in a mixed Monarchy Sect. 3. Part 2. Of this particular Monarchy Cap. 1. Whether the power wherewith our Kings be invested be an absolute or limited and moderated Power The Question stated Sect. 1. Proved radically limited Sect. 2. Contrary Arguments answered Sect. 3. 4. Cap. 2. Wherein and how this Monarchy is limited and defined Cap. 3. Whether it be of a simple or mixed constitution It is proved to be fundamentall mixed Sect. 1. The Arguments for the contrary are answered Sect. 2. Whether the Authority of the two Houses be subordinate and derived from the Kings Sect. 3. The Question resolved and cleared Sect. 4. Cap. 4. How farre forth this Monarchy is mixed and what part of the power is referred to a mixed subject Cap. 5. How farre forth the two estates may oppose the Will and proceedings of the Monarch The Question duly stated Sect. 1 2. Whether Resistence of Instruments of illegall Commands be lawfull Sect. 3. Proved lawfull Sect. 3. Contrary Arguments dissolved Sect. 4. Cap. 6. In what cases the other Estates may assume the Armes of the Kingdome for resistence of Instruments of arbitrary Commands Answered negatively Sect. 1. Affirmatively Sect. 2. Cap. 7. Where the legall power of finall Iudging of these cases doth reside the three estates differing about them The Question is stated and determined Sect. 1. Arguments contrary are answered Sect. 2. What to be done in such dissention Sect. 3. Cap. 8. The former Truths brought home to the present contention Sect. 1. A moderate debate concerning the present contention Sect. 2. The speediest meanes of Reconcilement proposed Sect. 3. A TREATISE OF MONARCHIE PART I. CAP. I. Of Politicall Government and its Distinction into severall Kinds GOvernment and Subjection are Relatives Sect. 1 so that what is said of the One may in proportion be said of the other Which being so it will be needlesse to treat of both because it will be easie to apply what is spoken of one to the other Government is Potestatis Exercitium the exercise of a Morall Power One of these is the Root and Measure of the other which if it exceed is exorbitant is not Government but a Transgression of it This Power and Government is differenced with respect to the Governed to wit a Family which is called Oeconomicall or a publike society which is called Politicall or Magistracie Concerning this Magistracie we will treat 1. in generall 2. Of the principall kind of it In generall concerning Magistracie There are two things about which I find difficultie and difference viz. the Originall and the End Authority how farre from God how farre from Men. First for the Originall There seem to be two extremes in Opinion while some amplifie the Divinitie therof Others speak so slightly of it as if there were little els but Humane Institution in it I will briefly lay down my apprehensions of the evident truth in this point and it may be things being clearly and disctinctly set down
in my apprehension the end of Magistracie is the good of the whole Body Head and Members conjunctly but if we speak divisim then the good of the Society is the Ultime end and next to that as conducent to that the Governours Greatnes and Prerogative And herein also accordeth Dr. Fern with us Sect. 3. Where he sayes That the people are the end of the governing Power There is another question of mainer concernment here in our generall discourse of Authority fitly to be handled viz. How farre subjection is due to it but because it hath a great dependance on the kinds and States of Power and cannot be so well conceived without the Precognition thereof I will referre it to after opportunities For the division of this Power of Magistracie It cannot Sect. 3 be well divided into several species Division of Magistracie for it is one simple thing an indivisible bcame of Divine Perfection yet for our more distinct conceaving thereof Men have framed severall distinctions of it So with respect of its measure it is absolute or limited In respect of its manner It is as St. Peter divides it Supreame or Subordinate In respect of its Meane of acquiring it is Elective or successive for I conceive that of Conquest and Prescription of usuage are reducible to one of these as will appeare afterwards In respect of its degrees it is Nomotheticall or Architectonicall and Gubernative or Executive And in respect of the subject of its residence there is an ancient and usuall distinction of it into Monarchicall Aristocraticall and Democraticall These either simple or mixt of two or all three together of which the Predominant gives the denomination These are not accurate specificative Divisions of Power for it admits none such but partitions of it according to divers respects The course of my intention directs me to speak only of Monarchicall Power which is the chiefe and most usuall forme of Government in the world The other two being apt to resolve into this but this not so apt to dissolve into them CHAP. II. Of the Division of Monarchy into absolute and limited Sect. 1 NOW we must know that most of those distinctions which were applyed to Power in generall are appliable to Monarchy because the respects on which they arise are to be found in it But I will insist on the three main divisions for the handling of them will bring us to a cleare understanding of what is needfull to be known about Monarchicall Power First of the distinction of Monarchy into Absolute and Limited Absolute Monarchy is when the Soveraignty is so fully in one that it hath no Limits or Bounds under God but his owne Will It is when a people are absolutely resigned up or resigne up themselves to be governed by the will of one man Such were the ancient Easterne Monarchies and that of the Persian and Turke at this day as farre as we know This is a lawfull Government and therefore where men put themselves into this utmost degree of subjection by Oath and Contract Whether absolute Monarchy be a lawfull government or are borne and brought unto it by Gods Providence it binds them and they must abide it because an Oath to a lawfull thing is Obligatory This in Scripture is very evident as Ezek. 17 16.18.19 Where Iudgement is denounced against the King of Iudah for breaking the Oath made to the King of Babylon and it is called Gods Oath yet doubtles this was an Oath of absolute subjection And Rom. 13. the power which then was was absolute yet the Apostle not excluding it calls it Gods ordinance and commands subjection to it so Christ commands tribute to be paid and payes it himselfe yet it was an arbitrary taxe the production of an absolute power Also the soveraignty of masters over servants was absolute and the same in Oeconomy as absolute Monarchy is in policie yet the Apostle enjoynes not masters called to Christianity to renounce that title as too great and rigid to be kept but exhorts them to moderation in the exercise of it and servants to remaine contented in the condition of their servitude More might be said to legitimate this kinde of governement but it needs not in so plaine a case This absolute Monarchy hath three degrees yet all within Sect. 2 the state of absolutenesse The first when the Monarch Three degrees of absolutenesse whose will is the peoples Law doth set himselfe no stated Rule or Law to rule by but by immediate Edicts and commands of his owne will governes them as in his owne and Councels judgement he thinks fit Secondly when he sets downe a Rule and Law by which he will ordinarily govern reserving to himselfe liberty to vary from it wherein and as oft as in his discretion he judges fit and in this the Soveraigne is as free as the former onely the people are at a more certainty what he expects from them in ordinary Thirdly when he not onely sets downe an expresse Rule and Law to governe by but also promiseth and engages himself in many cases not to alter that rule but this engagement is an after condescent and act of grace not dissolving the absolute oath of subiection which went before it nor is intended to be the rule of his power but of the exercise of it This Ruler is not so absolute as the former in the use of his power for he hath put a bond on that which he cannot breake without breach of promise that is without sin but he is as absolute in his power if he will sinfully put it forth into act it hath no politick bounds for the people still owe him absolute subiection that not being dissolved or lessened by an act of grace comming afterwards Sect. 3 Now in governments of this nature How far obedience is due Whether resistance be lawfull in absolute Monarchy and Whether any resistance be lawfull is a question which here must be decided For the due effecting whereof we must premise some needfull distinctions to avoid confusion Obedience is twofold first Positive and active when in conscience of an authority we doe the thing commanded secondly Negative and passive when though we answer not Authority by doing yet we doe it by contented undergoing the penalty imposed Proportionably resistance is twofold first Positive by an opposing of force secondly Negative when onely so much is done as may defend our selves from force without returne of force against the Assailant Now this negative resistance is also twofold first In inferiour and sufferable cases secondly or in the supreme case and last necessity of life and death and then too it is first either of particular person or persons secondly or of the whole community And if of particular persons then either under plea and pretence of equity assaulted or else without any plea at all meerly for will and pleasure sake for to that degree of rage and cruelty sometimes the heart of man is given over
it is lawfull to resist the exorbitant Illegal Commands of such a Monarch 1. As before in lighter cases in which it may be done for the reasons alledged Pos 1 and for the sake of publique peace we ought to submit and make no resistance at all but de jure recedere Pos 2 2. In cases of higher nature Passive resistance viz. By appeale to Law by Concealment by Flight is lawfull to be made because such a Command is politically powerles it proceeds not from Gods Ordinance in him and so we sin not against Gods Ordinance in such Non-submission or Negative resistance 3. For Instruments or Agents in such commands if the Pos 3 streight be such and a man be surprized that no place is left for an appeale nor evasion by Negative resistance I conceive against such Positive resistence may be made because authority failing or this Act in the Supreame Power the Agent or Instrument can have none derived to him and so is but in the nature of a private person and his Act as an offer of private violence and so comes under the same rules for opposition 4. For the person of the Soveraigne I conceive it aswell Pos 4 above any Positive Resistence as the Person of an absolute Monarch Yea though by the whole Community except there be an expresse reservation of Power in the body of the State or any deputed Persons or Court to use in case of intolerable exorbitance Positive Resistence which if there be then such a Governour is no Monarch for that Fundamentall Reservation destroyes it's being a Monarchy in asmuch as the Supreame Power is not in one For where ever there is a Soveraigne Politique Power constituted the person or persons who are invested with it are Sacred and out of the reach of Positive Resistance or Violence which as I said if just must be from no inferior or subordinate hand But it will be objected that sith every Monarch hath his power from the consent of the whole body that consent of the whole Body hath a Power above the Power of the Monarch and so the resistance which is done by it is not by an inferior power and to this purpose is brought that Axiome Quicquia efficit tale est magis tale I answer That rule even in naturall causes is lyable to abundance of restrictions And in the particular in hand it holds not Where the cause doth bereave himselfe of that perfection by which it works in the very act of causing and convey it to that effect It doth not remain more such then the effect but much lesse and below it as if I convey an estate of Land to another it doth not hold that after such conveyance I have a better Estate remayning in me then that other but rather the contrary because what was in one is passed to the other The Servant who at the year of Iubile would not go out free but have his eare boared and given his Master a full Lordship over him can we argue that he had afterward more power over himselfe then his Master because he gave his Master that power over him by that act of Oeconomicall Contract Thus the Community whose consent establishes a Power over them cannot be said universally to have an eminencie of Power above that which they constitute sometimes they have sometimes they have not and to judge when they have when not respect must be had to the Origiginall Contract and Fundamentall Constitution of that State if they have constituted a Monarchy that is invested one man with the Soveraignty of Power and subjected all the rest to him Then it were unreasonable to say they yet have it in themselves Or have a power of recalling that Supremacie which by Oath and Contract they themselves transferred on another Unles we make this Oath and Contract lesse binding then private ones dissoluble at pleasure and so all Monarchs Tenants at will from their people But if they in such Constitution reserve a power in the body to oppose and displace the Magistrate for exorbitancies and reserve to themselves a Tribunall to trie him in that man is not a Monarch but the Officer and Substitute of him or them to whom such Power over him is reserved or conferred The Issue is this If he be a Monarch he hath the Apex or Culmen Potestatis and all his Subjects divisim and conjunction are below him They have devested themselves of all superiority and no Power left for a Positive Opposition of the Person of him whom they have invested Sect. 7 Thirdly Who shall be the Iudge of the Excesses of the Soveraigne Lord in Monarchies of this composure Who shall be the Iudge of the excesses of the Monarch I answer A frame of Government cannot be imagined of that perfection but that some inconveniencies there will be possible for which there can be provided no remedie Many miseries to which a people under an absolute Monarchie are lyable are prevented by this Legall Allay and definement of Power But this is exposed to one defect from which that is free that is an impossibility of constituting a Judge to determine this last controversie viz. the Soveraignes transgressing his fundamentall limits This Judge must be either some Forraigner and then â—…e lose the freedome of the State by subjecting it to an externall power in the greatest case or else within the body If so then 1. either the Monarch himselfe and then you destroy the frame of the State and make it absolute for to define a Power to a Law and then to make him Judge of his Deviations from that Law is to absolve him from all Law Or else 2. the Community and their Deputies must have this power and then as before you put the apex Potestatis the prime 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the whole body or a part of it and destroy the being of Monarchy The Ruler not being Gods immediate Minister but of that Power be it where it will to which he is accomptable for his actions So that I conceive in a limited legall Monarchy there can be no stated internall Judge of the Monarchs actions if there grow a fundamentall Variance betwixt him and the Community But you will say It is all one way to absolutenesse to assigne him no Judge as to make him his own Judge Answ I say not simplie in this case there is no Judge But that there can be no Judg legall and constituted within that frame of Government but it is a transcendent case beyond the provision of that Government and must have an extraordinary Judge and way of devision In this great and difficult case I will deliver my apprehensions freely and clearly submitting them to the censure of better Iudgements Suppose the controversie to happen in a Government fundamentally legall and the people no further subjected then to Government by such a Law 1. If the act in which the exorbitance and transgression Pos 1 is supposed to be be of lesser moment
and not striking at the very being of that Government it ought to be borne by publique patience rather then to endanger the being of the State by a contention betwixt the head and body Politique 2. If it be mortall and such as suffered dissolves the frame Pos 2 and life of the Government and publique liberty Then the illegality and destructive nature is to be set open and redresment sought by Petition which if failing Prevention by resistance ought to be But first that it is such must be made apparent and if it be apparent and an Appeale made ad conscientiam generis humani especially of those of that Community then the fundamentall Lawes of that Monarchy must iudge and pronounce the sentence in every mans conscience and every man as farre as concernes him must follow the evidence of Truth in his owne soule to oppose or not oppose according as he can in conscience acquit or condemne the act of carriage of the Governour For I conceive in a Case which transcends the frame and provision of the Government they are bound to People are unbound and in state as if they had no Government and the superiour Law of Reason and Conscience must be Judge wherein every one must proceed with the utmost advice and impartiality For if hee erre in iudgement hee either resists Gods Ordinance or puts his hand to the subversion of the State and Policy he lives in And this power of judging argues not a superiority in those who Judge over him who is Judged for it is not Authoritative and Civill but morall residing in reasonable Creatures and lawfull for them to execute because never devested and put off by any act in the constitution of a legall Government but rather the reservation of it intended For when they define the Superiour to a Law and constitute no Power to Judge of his Excesses from that Law it is evident they reserve to themselves not a Formall Authoritative Power but a morall Power such as they had originally before the Constitution of the Government which must needs remaine being not conveyed away in the Constitution CHAP. III. Of the division of Monarchy into Elective and Successive THe second division of Monarchy which I intend to Sect. 1 treat of is that of Elective or Successive Elective and successive Monarchy what they are Elective Monarchy is that where by the fundamentall constitution of the State the supreme power is conveyed but to the person of him whom they take for their Prince the people reserving to themselves power by men deputed by the same constitution to elect a new person on the decease of the former Successive is where by the fundamentall constitution of the State the Soveraignty is conferred on one Prince and in that one as a root and beginning to his heires after a forme and line of succession constituted also by the fundamentals of that Government In the first the Peoples oath and contract of subiection extends but to one person In the other to the whole Race and Line of Successors which continuing the bond of subjection continues or which failing the people returne to their first liberty of choosing a new person or succession to be invested with Soveraignty I doe conceive that in the first originall all Monarchy yea Sect. 2 any individuall frame of Government whatsoever All Monarchy whether originally from consent is elective that is is constituted and drawes its force and right from the consent and choice of that Community over which it swayeth And that triple distinction of Monarchy in o that which is gotten by Conquest Prescription or Choice is not of distinct parts unlesse by Choice be meant full and formall Choice my reason is because man being a voluntary agent and subiection being a morall act it doth essentially depend on consent so that a man may by force and extremity be brought under the power of another as unreasonable creatures are to be disposed of and trampled on whether they will or no But a bond of subjection cannot be put on him nor a right to claime Obedience and Service acquired unlesse a man become bound by some act of his owne Will For suppose another from whom I am originally free be stronger then I and so bring mee under his mercy doe I therefore sin if I doe not what he commands me or can that act of violence passe into a morall title without a morall principle Sect. 3 But this will be more manifest if by induction I shew how other titles resolve into this Monarchy by divine institution I will begin with that of divine institution Saul and David were by the Sacrament of anointing designed to the Kingdome as it were by Gods owne hand which notwithstanding they were not actually Kings till the Peoples consent established them therein That unction was a manifestation of the appointment of God and when it was made knowne to the People I thinke it had the power of Precept to restraine the Peoples choice to that person which if they had not done they had resisted Gods ordinance Yet they were not thereby actually endowed with Kingly power but remained as private men till the Peoples choice put them in actuall possession of that Power which in David was not till after many yeares Sect. 4 Then for that of Usuage or Prescription if any such did ever constitute a Monarchie Monarchy by prescription it was by vertue of an Universall consent by that Usuage and Prescription proved and implyed For in a Popular state where one Man in the Communitie by reason of great estate Wisdome or other Perfection is in the eye of all the rest all reverence him and his advice they follow and the respect continues from the People to the house and family for divers generations In this case subjection at first is arbitrary in the people and if in time it become necessary it is because their Custome is their Law and its long continuance is equivalent to a formall Election so that this Tenure and Right if it be good and more then at pleasure as it was at first the considerate must needs ascribe it to a consent and implicite choyce of the People But the mayn Question is concerning Monarchy archieved Sect. 5 by Conquest Monarchy by conquest where at first sight the Right seems gotten by the Sword without the consent and Choyce of the People yea against it Conquest is either 1. Totall where a full Conquest is made by a totall subduing a people to the Will of the Victor or 2. Partiall where an entrance is made by the Sword But the People either because of the Right claymed by the Invader or their unwillingnesse to suffer the Miseries of Warre or their apparent inability to stand out in a way of Resistance or some other consideration submit to a composition and contract of subjection to the Invader In this latter it is evident the Soveraignes Power is from the Peoples consent and
the Government is such as the Contract and fundamentall agreement makes it to be if it be the first Agreement and the pretender hath no former Title which remaines in force for then this latter is invalid if it include not and amount to a relinquishing and disanulling of the Old But the difficulty is concerning a full and meere Conquest and of this I will speak my mind clearly Such a Warre and Invasion of a People which ends in a Conquest 1. it is either upon the pretence or claim of a Title of Soveraignty over the People invaded and then if the pretender prevaile it is properly no Conquest but the vindication of a Title by force of Armes And the Government is not Originall but such as the Title is by which he claymes it 2. Or it is by One who hath no challenge of Right descending to him to justifie his claim and Invasion of a People Then if he subdue he may properly be said to come to his Government by Conquest And there be who wholly condemne this title of Conquest as unlawfull Whether conquest give a iust title and take it for nothing else but a Nationall and publike robbery so one of the Answerers to Doctor Ferne saies in his p. 10. Conquest may give such a right as Plunderers use to take in houses they can master It is inhumane to talke of right of Conquest in a Civill in a Christian State But I cannot allow of so indefinite a Censure rather I think the right of Conquest is such as the precedent Warre was if that were lawfull so is the Conquest For a Prince may be invaded or so farre injured by a neighbour People or they may be set on such a pernicious enmitie against him and his people that the safety of himselfe and people may compell to such a Warre which warre if it end in Conquest who can judge such Title unlawfull Suppose then Conquest may be a lawfull way of acquisition yet an immediate cause of right of Soveraignty that is of a Civill power of Government to which obedience is due it cannot be I say an immediate cause for a remote impulsive cause it oft is but not an immediate formall cause for that must ever be the consent of the people whereby they accept of and resigne up themselves to a Government and then their Persons are morally bound and not before Thus far the force of conquest may goe it may give a man title over and power to possesse and dispose of the Countrey and Goods of the Conquered yea the Bodies and lives of the Conquered are at the Will and Pleasure of the Conquerour But it still is at the Peoples choice to come into a morall condition of subiection or not When they are thus at the mercy of the Victor if to save life they consent to a condition of servitude or subiection then that consent oath or covenant which they in that extremity make being in relicita bindes them and they owe morall Duty But if they would rather suffer the utmost violence of the Conquerour and will consent to no termes of subjection as Numantia in Spaine and many other People have resolved they die or remaine a free People Be they captived or possessed at pleasure they owe no duty neither doe they sin in not obeying nor doe they resist Gods ordinance if at any time of advantage they use force to free themselves from such a violent possession yea perhaps if before by contract they were bound to another they should sin if to avoid death or bondage they should sweare or covenant fealty to a Conquerour and it were more noble and laudable to die in the service and for the faith to their naturall Soveraigne Thus I am perswaded it will appeare an uncontrolable truth in Policie that the consent of the People either by themselves or their Ancestors is the only mean in ordinary providence by which soveraignty is conferred on any Person or Family neither can Gods ordinance be conveyed and People engaged in conscience by any other means It hath been affirmed by some that mixture and limitation Sect. 6 is inconsistent to successive Monarchy Whether a Monarch by succession may not be limited as if where ever Soveraignty is entailed to a succession it must needs be absolute But I must professe I cannot see how it can stand with truth Rather I thinke that both Elective and Hereditary Monarchy are indifferently capable of absolutenesse or limitation If a free and not pre-ingaged People to any Government by publike compact yeeld up themselves to a Person to be commanded by his Will as their supreme Law during his naturall life and no longer can it be denied but that he is an absolute and yet Elective Monarch unlesse you will say he is not absolute because he cannot by his Will as by a Law bind them to elect his sonne to succeed him and change their Government into hereditary But his being limited in this Clause doth not disparage his Soveraignty or make his power of Government limited because this belongs not to present Government but is a meere provision for the future Againe if the power of Ruling according to a Law be by consent conveyed to one Person and his heires to succeed after him how this should come to be absolute and the entailement should overthrow the constitution I cannot imagine If the whole latitude of power may be by a People made hereditary sure a proportion may as well unlesse the limitation be such as includes a repugnancy to be perpetuall Indeed this enstating of a succession makes that power irrevocable during the continuance of that succession but it makes it neither greater nor lesse in the Successor then was in his Progenitors from whom hee derives it In a successive Monarchy the Successor holds by the originall Sect. 7 Right of him who is the root of succession and is de jure King the immediate instant after his Predecessors decease Also the people are bound 〈◊〉 him though they never take any Oath to his person For as he commands in vertue of the originall Right so they are bound to obey by vertue of the originall Covenant and nationall Contract of Subiection the new oath taken either by King or People is but a reviving of the old that the Conscience of it by renewing might be the more fresh and vigorous it neither gives any new power nor addes or detracts from the old unlesse by common agreement an alteration be made and so the foundation in that clause is new which cannot be without the consent of both parties CHAP. IIII. Of the Division of Monarchy into Simple and Mixed Sect. 1 THe third division is into Simple and Mixed Simple is when the Government absolute or limited is so intrusted in the hands of one Simple and mixed Monarchy what that all the rest is by deputation from him so that there is no authority in the whole Body but his or derived from him
force But it appears the Doctor in his whole discourse hath avoided this point of resistence of mis-imployed subjects which yet is the alone point which would have given satisfaction for before it appeares we agree in all the rest and in this too for ought I know he having not distinctly said any thing against it Now concerning this case of forceable resistence of inferiour Sect. 3 persons mis-imployed to serve the illegall destructive commands of the Prince I will doe two things 1. Whether resistence of Instruments of will be lawfull I will maintaine my Assertion by convincing Arguments 2. I will shew the invalidity of what is said against it Assert 1. This then is my Assertion The two Estates in Parliament may lawfully by force of Armes resist any persons or number of persons advising or assisting the King in the performance of a command illegall and destructive to themselves or the publique Arg. 1 1. Because that force is lawfull to be used for the publique conservation which is no resistence of the Ordinance of God for that is the reason condemning the resistence of the Powers Now this is no resistence of Gods Ordinance For by it neither the person of the Soveraigne is resisted nor his power Not his person for we speak of Agents imployed not of his own person Nor his power For the measure of that in our Government is acknowledged to be the Law And therefore he cannot confer Authority to any beyond Law so that those Agents deriving no Authority from him are meere Instruments of his Will Unauthorized persons in their assaults Robbers and as Dr. Ferne calls them Cut-throats If the case be put What if the Soveraigne himselfe in person be present with such Assaylants joining his personall assistence in the execution of his Commands It is much to be lamented that the will of the Prince should be so impetuous in any subverting Act as to hazzard his own person in the prosecution of it Yet supposing such a case all councells and courses must betaken that no violence be offered to his person and Profession of none intended But no reason the presence of his person should priviledge ruining Instruments from suppression and give them an immunity to spoil and destroy subjects better themselves His person being secured from wrong His power cannot be violated in such an Act in which none of it can be conferred on the Agents And sure David though he avoided laying hands or using any violence against the person of Saul and on no extremity would have done it Yet for the Cut-throats about him if no other means would have secured him he would have rescued himselfe by force from their outrage Though Saul was in their company Else what intended he by all that force of Souldiers And his enquiry of God at Keilah by which it is plain He had an intent to have kept the place by force if the people would have stuck to him Neither is it to the purpose which the Dr. saies Sect. 2. That his example was extraordinary because he was anointed and designed to succeed Saul for that being but a designation did not exempt him from the duty of subjection for the present or lessen it as is plain by the great conscience he made of not touching Saul But he knew it was one thing to violate Sauls Person and Power and another to resist those Instruments of Tyranny the Cut-throats which were about him Secondly Because without such power of resistence in Arg. 2 the hands of subjects all distinction and limitation of Government is vain and all formes resolve into absolute and arbitrary for that is so which is unlimited and that is unlimited not onely which hath no limits set but also which hath no sufficient Limits for to be restrained from doing what I will by a power which can restrain me no longer nor otherwise then I will is all one as if I were left at my own Will I take this to be cleare Now it is as cleare that without this forceable resistence of Instruments of usurped power be lawfull no sufficient limits can be to the Princes Will and all Lawes bounding him are to no purpose This appeares by enumerating the other meanes Prayer to God Petition to the Prince Deniall of obedience Deniall of Subsidie a moderate use of the power of denying as Doctor Ferne calls it These are all but what are these to hinder if a Prince be minded to overthrow all and bring the whole Government to his own Will For Prayer and Petition these are put in to fill up the number They are no limitations they may be used in the most absolute Monarchy for deniall of obedience that may keep me from being an Instrument of publique servitude but Princes Wills never want them which will yeild obedience if I deny it Yea enough to destroy all the rest if nothing be left them but to suffer Then for deniall of Subsidie if he may by thousands of Instruments take all or what he or they please and I must not resist what need he care whether the people deny or grant If a Prince be taught that he may do it cases and reasons will soon be brought to perswade him that in them he may lawfully doe it as late experiences have given us too much Testimonie Thus it is apparent that the deniall of this Power of Resistence of Instruments overthrowes and makes invalid all Government but that which is absolute and reduces the whole world de jure to an absolute subjection that is servitude for the end of all constitution of moderated forms is not that the supreme power might not lawfully exorbitate but that it might have no power to exorbitate The Dr. is conscious hereof and therefore tells us in his Sect. 5. This is the very reason which is made for the Popes power of curbing and deposing Kings in case of heresie because else the Church saies the Papist hath no meanes for the maintenance of the Catholique Faith and its own safety But who sees not the vast difference 'twixt these two and that the same reason may be concluding here which is apparently non concluding there For 1. They thereby would draw to the Pope an authoritative power we no such superiour power but only a power of resistence for self-conservation which nature and the Law of reason gives to every one and may stand with the condition of subjection and inferiority 2. They on this reason give the Pope a Power over the very person of the King we only of resisting of unauthorized invading destroyers comming under the colour of an authority which is not in the Soveraigne to be derived 3. They prove a civill right for spirituall reasons we onely for civill reasons 4. The Church and the faith are constituted in their very formall being from Christ himselfe who is the head and great Shepheard immediately in his owne person and as it is his owne family so he keeps the power of
preserving it in his owne hands having made direct and particular promises to assure us of their upholding against all subvertion by his own power so that here is assurance enough without visible meanes of force for a spirituall body which lives by faith But in a civill State there is no such assurance nor supporting promises power onely in the undefined being of it being Gods immediate Ordinance and not in this specificated or determinate being wherefore it hath no such immediate provision made for its preservation no promise of a divine power for its standing but as it is left by God to mens wisdome to contrive the frame so to their providence to establish meanes of preservation As the body is outward and Civill so the upholding meanes must be such spirituall and infallibly assuring a Formed State hath not as the Church and Faith have if there be none of outward force and power neither then none at all it hath and is in ill case indeed But there is an art full of venome when a truth can not bee beaten downe by just reasoning then to make it odious by hatefull comparisons so in this case aspersions are cast as if the Patrons of Resistence did borrow the Popish and Jesuiticall grounds and their Positions as dangerous to Kings as the Jesuites hell-bred and bloudy Principles whereas it appeares by all this discourse and I am perswaded is written in Capitall Letters in the very Conscience of them which despitefully object it that there is no congruity at all 'twixt their Doctrines no more then 'twixt Light and Darknesse Thirdly because such power is due to a publike State for Arg. 3 its preservation as is due to a particular person But every particular person may lawfully by force resist illegall destructive Ministers though sent by the command of a legall Soveraigne provided no other meanes of selfe-preservation be enough This Assumption the Doctor seemes to grant he denies it to be lawfull against the Person of the Prince but in effect yeelds it against subordinate persons But the main is against the Proposition and the Doctor is so heavie a friend to the State that he thinkes it not fit to allow it that liberty he gives every private man But whose Judgement will concurre with his herein I cannot imagine for sure the Reason is greater the publike safety being far more precious and able to satisfie the dammages of a publike resistence then one particular mans is of a private But of this more in answer to his Reasons Fourthly because it is a power put into the two Estates by Arg. 4 the very reason of their Institution and therefore they not onely may but also ought to use it for publike safety yea they should betray the very trust reposed in them by the Fundamentals of the Kingdome if they should not An authority Legislative they have Now to make Lawes and to preserve Lawes are acts of the same power yea if three powers jointly have interest in making of Lawes surely either of these severally have and ought to use that power in preserving them Also that the authority which the Houses have is as well given them for preserving the government by established lawes as for establishment of lawes to govern by is a truth proved by the constant use of their power to that end in correcting the exorbitance of inferiour Courts questioning delinquent Judges and Officers of State for violations and much is done in this kinde by the sole authority of the Houses without the concurrence or expectance of Royall power so then supposing they have such an authority for safety of publike Government to question and censure inferiour Officers for transgressions though pretending the Kings authority can it be denied but that their authority will beare them out to use forcible resistence against such be Arg. 5 they more or fewer Fifthly the Kings Warrant under his hand exempts not a Malefactor from the censure of a Court of Justice nor punishment imposed by Law but the Judge must proceed against him according to Law for the Law is the Kings publike and authoritative Will but a private Warrant to doe an unlawfull act is his private and unauthoritative Will wherefore the Judge ought to take no notice of such Warrant but to deale with the Offendor as no other then a private man This proves that such Instruments thus illegally warranted are not authorized and therefore their violence may be by force resisted as the assaults of private men by any and then much rather by the Houses of Parliament which supposing them divided from the King to have no complete authority yet sure they have two parts of the greatest Legislative authority But I feare I shall seeme superfluous in producing Arguments to prove so cleare a truth Is it credible that any one will maintaine so abject an esteeme of their authority that it will not extend to resistence of private men who should endevour the subversion of the whole frame of Government on no other Warrant then the Kings Will and Pleasure Must they be meerly passive Is patience and the deniall of their Votes to a subversion all the opposition they must use if a King which God forbid should on his Royall pleasure send Cut-throats to destroy them as they sit in their Houses Is all their authority if the King desert them or worse no more then to Petition and suffer and by a moderate use of their power of denying dissent from being willing to be destroyed If power of resisting by force of subverters armed by the Kings Will for by his Authority they cannot be unlawfull for them all these absurdities must follow yea the vilest Instrument of Oppression shewing but a Warrant from the King to beare him out may range and rage all his dayes through a Kingdome to waste and spoile taxe and distraine and at utmost of his insolence must have no more done to him by the Parliament it selfe then to stay his hand as the basest Servant may his Masters or the meanest Subject the Kings owne hand by the Doctors own confession Consider then and admire if any men of learning will deny this power of forcible resistence of Ministers of subverting commands to be lawfull I have thus far confirmed my assertion not that I finde any openly opposing it but because the Doctor and some other seeme to have a mind that way and doe strike at it though not professedly and in open dispute For the severall proofes brought in behalfe of Resistence some of them prove as much as is here asserted others are not to the purpose Particularly that of the Peoples rescuing Jonathan from his Fathers bloudy resolution proves lawfulnesse of hindering unreasonable self-destructive purposes even in absolute Monarchies if it prove any thing That of Vzzal's thrusting out by the Priests is not to the purpose but Davids raising and keeping Forces about him and his purpose at Keilah proves the point directly viz. Lawfulnesse of forcible resistance
either of them or the diminishing of their Fundamentall Rights carries with it the dissolution of the Government And therefore those grounds which justifie force to preserve its Being allowes this case which is a direct innovation of its Being and Frame CHAP. VII Where the Legall Power of Finall judging in these cases doth reside Quest 7. in case the three Estates differ about the same IN this Question for our more distinct proceeding some Sect. 1 things are necessarily to be observed First The Question stated that we meddle not here with the judicature of Questions of inferiour nature viz. such as are 'twixt subject and subject or the King and a subject in matter of particular right which may be decided other way without detriment of the publike Frame or diminution of the priviledges of either of the three Estates Secondly difference is to be made even in the Questions of utmost danger First for it may be alledged to be either from without by invasion of forrain Enemies or by a confederacy of intestine subverters in which neither of the three Estates are alledged to be interessed and so the case may be judged without relation to either of them or detriment to their priviledges Here I conceive a greater latitude of power may be given to some to judge without the other for it inferres not a subordinating of any of the three to the other Secondly or else it may be alledged by one or two of the Estates against the other that not contenting it selfe with the Powers allowed to it by the Lawes of the Government it seekes to swallow up or entrench on the priviledges of the other either by immediate endevours or else by protecting and interessing it selfe in the subversive plots of other men Thirdly in this case wee must also distinguish betwixt first authority of raising Forces for defense against such subversion being knowne and evident secondly and authority of judging and finall determining that the accused Estate is guilty of such designe and endevour of subversion when it is denied and protested against This last is the particular in this Question to be considered not whether the People are bound to obey the authority of two or one of the Legislative Estates in resisting the subversive assaies of the other being apparent and self-evident which I take in this Treatise to be cleare But when such plea of subversion is more obscure and questionable which of the three Estates hath the power of ultime and supreme judicature by Vote or sentence to determine it against the other so that the People are bound to rest in that determination and accordingly to give their assistance eo nomine because it is by such Power so noted and declared Determination of the Question For my part in so great a cause if my earnest desire of publique good and peace may justifie me to deliver my minde I will prescribe to the uery Question for it includes a solecisme in government of a mixt temperature To demand which Estate may challenge this power of finall determination of Fundamentall controversies arising betwixt them is to demand which of them shall be absolute For I conceive that in the first part hereof I have made it good that this finall utmost controversie arising betwixt the three Legislative Estates can have no legall constituted Judge in a mixed government for in such difference he who affirmes that the people are bound to follow the Judgement of the King against that of the Parliament destroyes the mixture into absolutenesse And he who affirmes that they are bound to cleave to the Judgement of the two Houses against that of the King resolves the Monarchie into an Aristocracie or Democracie according as he places this finall Judgement Whereas I take it to be an evident truth that in a mixed government no power is to be attributed to either Estate which directly or by necessary consequence destroyes the liberty of the other Yet it is strange to see how in this Epidemicall division of Sect. 2 the Kingdome the Abettors of both parts claime this unconcessible Judgement But let us leave both sides pleading for that which we can grant neither and weigh the strength of their Arguments First Dr. Ferne layes downe two reasons Dissolution of Arguments placing it in the King why this finall Judgement should belong to the Kingâ— 1. Monarchie saies he Sect. 5. settles the chiefe power and finall Judgement in one This Position of his can be absolutely true no where but in absolute Monarchies and in effect his book knowes no other then absolute government 2. Seeing some one must be trusted in every State It is reason saies he Sect 5. the highest and finall trust should be in the higher and Supreame power I presume by finall trust he meanes the trust of determining these Supreame and finall disagreements and accordingly I answer It is not necessary that any one be trusted with a binding power of Judicature in these cases for by the foundations of this government none is yea none can be trusted with it for to intend a mixed government and yet to settle the last resolution of all judgement in one is to contradict their very intention Neither in a constituted government must we dispose of powers according to the guesse of our reason for mens apprehensions are various The Dr. thinkes this power fittest for the King His answerers judge it fittest for the two Houses and give their reasons for it too Powers must there reside where they are de facto by the Architects of a government placed he who can bring a fundamentall Act stating this power in any saies something to the matter but to give our conjectures where it should be is but to provide fuell for contention Dissolution of the â—rguments placing it in the two Houses On the contrary The Author of that which is called A Fuller Answer to that Dr. hath two maine Assertions placing this Judgement in the two Houses 1. The finall and casting result of this States Judgement concerning what these Lawes dangers and meanes of prevention are resides in the two Houses of Parliament saies he p. 10. 2. In this finall resolution of the States Judgement the people are to rest ibidem pag. 14. Good Lord What extream opposition is between these two sorts of men If the maintenance of these extremes be the ground of this warre then our Kingdome is miserable and our Government lost which side soever overcome for I have more then once made it good that these Assertions are destructive on both sides But I am rather perswaded that these Officious Propugners overdoe their worke and give more to them whose cause they plead then they ever intended to assume Nay rather give to every one their due give no power to one of these three to crush and undoe the other at pleasure But why doth this Answer give all that to the two Houses which ere while they would not suffer when the
Judges in the case of Ship-money had given it to the King sure when they denied it to him they did not intend it to themselves 1. Hee tells us In them resides the reason of the State And that the same reason and Judgement of the State which first gave this government its being and constitution therefore all the people are to be led by it and submit to it as their publique reason and Judgement I answer If by state he meane the whole Kingdome I say the reason of the two Houses divided from the King is not the reason of the Kingdome for it is not the Kings reason who is the head and chiefe in the Kingdome If by state be meant the people then it must be granted that as farre forth as they represent them their reason is to be accounted the reason of the Kingdome and doth binde so farre forth as the publique reason of the Kingdome can binde after they have restrained their reason and will to a condition of subjection so that put case it be the reason of the state yet not the same which first gave this Government its being for then it was the reason of a State yet free and to use their reason and Judgement in ordaining a Government but now the reason of a State bound by Oath to a Government and not at liberty to resolve againe Or to assume a supreme power of judging distructive to the frame of Government they have established and restrained themselves unto Their reason is ours so farre as they are an ordained representative body But I have before demonstrated that in this frame the Houses could not be ordained a legall Tribunall to passe Judgement in this last case for then the Architects by giving them that Judicature had subordinated the King to them and so had constituted no Monarchie 2. He argues the Parliament being the Court of supreme Judicature and the Kings great and highest Councell therefore that is not to be denied to it which inferiour Courts ordinarily have power to do viz To judge matters of right betweene the King and Subject Yea in the highest case of all The Kings power to tax the subject in case of danger and his being sole Judge of that danger was brought to cognizance and passed by the Judges in the Exchequor I answer 1. There is not the same reason betwixt the Parliament other courts In these â—he King is Judge the Judges being deputed by him and judging by his authority so that if any of his Rights be tried before them it is his owne Judgement and he judges himselfe and therefore it is fit he should be bound by his owne sentence But in Parliament the King and People are Judges and that not by an authority derived from him but originally invested in themselves So that when the two Estates judge without him in any case not prejudged by him it cannot be called his Judgement as that of the other Courts being done by his authority and if he be bound by any Judgment of the two Estates without him he is bound by an externall power which is not his owne that is he is subordinated to another power in the State where he is supreme which is contradictory Secondly in other Courts if any case of right be judged 'twixt him and the subject they are cases of particular Rights which diminish not Royalty if determined against him Or if they passe cases of generall right as they did in that of Ship-money it is but declaratively to shew what is by Law due to one and the other yet their Judgement is revocable and liable to a repeale by a superiour Court as that was by Parliament But if the Kings Prerogatives should be subjected to the Judgement of the two Estates the King dissenting then he should be subject to a sentence in the highest Court and so irremediable a Judicatory should be set up to determine of his highest Rights without him from which he could have no remedy Thus maine causes may bee alledged why though other Courts doe judge his Rights yet the two Estates in Parliament without him cannot and it is from no defect in their power but rather from the eminency of it that they cannot If one deputed by common consent of three doth by the power they have given them determine controversies betweene those three it is not for either of them to challenge right to judge those cases because one who is inferiour to them doth it Indeed if the power of the two Houses were a deputed power as the power of other Courts is this Argument were of good strength but they being concurrents in a supreme Court by a power originally their owne I conceive it hard to put the power of finall Judgement in all controversies 'twixt Him and them exclusively or solely into their hands If it be demanded then how this cause can be decided Sect. 3 and which way must the People turne in such a contention What be done in such a Contention I answere If the non-decision be tolerable it must remaine undecided whiles the Principle of legall decision is thus divided and by that division each suspends the others power If it be such as is destructive and necessitates a determination this must be made evident and then every Person must aide that Part which in his best Reason and Judgement stands for publike good against the destructive And the Lawes and Government which he stands for and is sworne to justifies and beares him out in it yea bindes him to it If any wonder I should justifie a power in the two Houses to resist and command aide against any Agents of destructive commands of the King and yet not allow them power of judging when those Agents or commands are destructive I answere I doe not simply deny them power of judging and declaring this but I deny them to be a legall Court ordained to judge of this case authoritatively so as to bind all People to receive and rest in their judgement for conscience of its authority and because they have Voted it 'T is the evidence not the power of their Votes must bind our Reason and Practice in this case We ought to conceive their Votes the Discoveries made by the best eyes of the Kingdome and which in likelihood should see most But when they Vote a thing against the proceedings of the Third and supreme Estate our Consciences must have evidence of Truth to guide them and not the sole authority of Votes and that for the Reason so oft alledged CHAP. VIII The contention now in being is debated and the readiest meanes of Reconcilement proposed THus have I for my owne satisfaction and the Conscience Sect. 1 of every moderate and impartiall man who will peruse the same set downe what I verily conceive to be the truth concerning those high matters first of Monarchy in generall and then of this of England and have given my determination concerning all the weighty Questions which