The Peoples Right to Defend Themselves and their Covenanted Religion, Religious tract · Chapter 8

The Peoples Right to Defend Themselves and their Covenanted Religion · Religious tract · Chapter 8

p. 153CAP. VIII.

The Peoples ſaifty is the ſupreme Law. The King is not abſolute. Hence ſome Moe Arguments.

THat ſalus populi est ſuprema Lex is aſſerted by the law of the 12 Tables. The worthy author of Lex Rex hath fully confirmed this truth, and vindicated it from the exceptions, and falſe gloſſes, of the Royaliſts, Quaeſt. 25. And therefore we need ſay leſſe to it, eſpecially ſeing this Surveyer, hath nothing againſt it, that I have obſerved.

That it is a truth, That the peoples ſaifty is the cardinal law, hence appareth, 1. That the attaineing of this end, was the maine ground and motive of the peoples condeſcending upon the conſtitution. 2. They levelled at his end, in makeing choyſe of ſuch a forme, and not of another; for had they thought another fitter for their temper, and more conduceing for their good, they had not pitched on this, but on that. 3. with an eye to the ſaife and ſure attaineing of this end proposed and deſigned, they made choiſe of ſuch perſones, and of none elſe. 4. upon this account, did they condeſcend upon that manner of conveyance of the ſupream authority, which they thought beſt, 5. For no other end, was it, that the Prince was limited and bound unto conditions. 6. The end being alwayes preferable to the meanes as ſuch, p. 154The Peoples ſaifty, which is the end, muſt be preferred to all ſuch things as are made uſe of as meanes conduceing to this end. 7. By the very Law and inſtitution of God, the Magiſtrate is ordained for the Peoples good, Rom. 13. ver. 4. and to this end, (next to the glory of God, unto which we alwayes give the preference) is he direct all his publick actions as a Magiſtrate, and by this, is he to ſtirre his courſe, in governing the helme of the Republick. 8. Hence it is that all the municipal lawes of the Land, are made, renewed, corroborated, explained, or reſcinded and annulled, ſo as they moſt conduce to this great end which is ever anima & ratio Legis. 9. Hence also it is, that no law in its letter tending to the hurt and detriment of the Realme, is or can be of force. 10. Hence it is, that the Soveraigne in caſes of neceſſity, may neglect the ſtrick obſervation of the letter of the lawes, and for the good of the community, neglect private mens intereſts. Finally the very law of nature requireth this, as Boxhornius Inſt. Polit lib. 1. Pag. 25. tells us.

Doctor Sanderſon in his book dc obligati…ne conſcientiae praelect. 9. & 10. laboureth to put another gloſſe upon this axiome: But he may be eaſily anſwered: for we shall readyly grant with him, that by ſaifty here is not meaned dignity, or liberty in ſome ſmall and inconſiderable triffles, unto which ſome ſmall and inconſiderable hurt is oppoſite: nor shall we ſay that any extraordinary thing is to be attempted in a Commonwealth, againſt the lawes, whenſoever any leading popular man or bold rhetoricator or a Démagog shall ſay that Princes and Magiſtrates, have violated the lawes, done injuries to the people, and neglected their duty; yet he muſt give us leave to ſay, That the ſaifty of the people, is in hazard, when it is manifeſt and notour, ſo as they who run may read it, that lawes, once eſtablished, and for the future good and through ſecurity of the ſubject, by Oathes and Covenantes corroborated, and made irrepelable, by any Magiſtrate higher or lower, are annulled, condemned, and reſcinded; nay the Covenants whereby the land was devouted to God, and their Religion ſecured to them, and the fundamental p. 155law or ground of the Conſtitution, and condition on which the Soveraigne was admitted to his throne, overturned, and trode under foot: All forced to condemne their former actions and Covenants, Vowes, Oathes, Prayers, Teares, Faſtings, Fightings &c. by ſubſcribing contradictory, condemnatory, and reſciſſory acts, and declarations, and forced to run counter their owne oathes and Solemne Engagements, otherwiſe to be expoſed to ruine by arbitrary mulcts, fineings, impriſonements, quarterings, cruel and inhumane uſages, plunderings, vaſtations, depopulations and the like. Is not this equivalent to incurſions of forraigne adverſaryes? Is not this depredation committed by wicked ſubjects? Is there not here impious and horrible acts of tyranny? But he will have the word People taken for the Prince diſtinct from the People, or in a collective ſenſe, for Prince and People together. He muſt be a ſtrong rhetoricator indeed that will perſwade any to beleeve this, ſeing there is no reaſon in the world for it: For though we should grant that among the Romans it vvas ſometimes used to deſigne, not only the plebeians, but alſo the equeſtral crder conjunctly, as in that axiome Senatus populuſque Romanus. The ſenate and the people of Rome: And that ſometimes it did deſigne the Fathers, the knights, and the Plebeians conjunctly, yet it will not follovv that it is ſo it is ſo taken in this axiome; for if vve should follovv his ovvne rule, viz. That collective vvords should be collectively taken, unleſſe the oppoſite vvhichwhich is annexed, require othervviſe: And vvith all, make uſe of this ovvne vvords prael. 10. §. 19. A romana gente &c, 1. e [I have told that this axiome is come to our hands from the Romans, and now I adde, that in the 3 book of Cicero de legibus that ſentence is friſt found, for any thing I know; yet, as he teſtifieth himſelf, taken out of the ancient lawes of that nation, and copied out of the very letter of the law. Now this Cicero after he hath deſcribed and explained, in the preceding book, the lawes pertaining to Religion and the worshiping of the Gods, at length? in the third book, he comes to rehearſe theſe lawes which concearne the Republick and the Magiſtrates, where theſe words are to be found. Regio Imperio duo ſunto, iique praeeundo, judicando, conſulendo, p. 156praetores judices conſules appellantor, militiae ſummum jus habento, nemini parento, ollis (i.e. illis) ſalus populi ſuprema lex eſto he ſayes, to theſe the chief law should be the peoples ſaifty: Now who are theſe? thoſe, viz. Who were endued with King'ly power, and had the chief diſpoſall of the militia, &c.] It vvill then be as cleare as can be, that the oppoſite which is added or annexed, doth ſufficiently show that the vvord People in this axiome, is to be taken for the People, as contradiſtinguished from the Magiſtrates, and not for People and Magiſtrate conjunctly; far leſſe for the Prince as diſtinct from the People. And doth not this ſame ſentence of Cicero's fully confirme our Gloſſe, and ſay that Princes and Magiſtrates, as ſuch, ought mainly to deſigne the good of the People, over whom they are ſet, & to have that for their end in all their publick actings, whether in making, or in executing lawes? How then can he ſay that this axiome is rather to be underſtood of the Prince alone, then of the People alone? But for this he tells us, That the ancient Fathers did eſteem of them as next unto God ad inferiour to him only, and that the People of Iſrael, 2 Sam. 18: 3. Did preferre the ſaifty of the King unto the ſaifty of all the reſt, and in the Lament. 4: 20. He is called the breath of our nostrils. To all which it is eaſily anſwered, 1. That all this will not prove, that Princes are bound by reaſon of their office, only to ſeek their owne good, greatneſſe and power; or to preferre that unto the good of the People; and not rather deſigne, as their proper and principal end, the promoving of the good and ſaifty of the People committed to their charge. 2. The Fathers might have ſpoken ſo of the Emperours, as they were then de facto and in regaird of their ſupereminency, but notwithſtanding of that, they and their ſupereminency both, was ſubordinate unto the good of the People, and was ex natura rei, but a meane for that maine and great good. 3. It is true in ſome caſes, and at ſuch a nick of time, as that was 2 Sam. 18. The loſſe of a good King, when he is the maine perſon hunted for by the adverſaries, would prove more deſtructive to the Commonwealth, then the loſſe of ten thouſand, and this rather confirmeth the axiome then p. 157weakeneth it, for it was upon the account of the publick good of the Commonwealth, that the life of King David was preferable to the lives of many. 4. It is not ſaid, that His life was better then, and preferable to, the lives of the whole body of the Commonwealth. 5. That metaphorical expreſſion Lament. 4. she weth only how uſeful & ſteadable the King would be unto them; even a neceſſary mean to keep them in a politick life as to a Commonwealth; and ſo it ſayeth that, his whole deſigne as a Magiſtrate should be to procure their good. 6. Moſes a good Prince did preferre the Peoples life unto his owne: and David did the ſame 1. Chron 12: 17. and theſe do abundantly confirme our ſenſe. He replyeth further; That it was no wonder that among the Romans from whom we have this axiome, the Peoples ſaifty was the principal law, ſeing in that democratical government, the People were the Supreame powres. Anſ. This is but a meer shift; for even in a democrat. governm. the Peoples ſaifty is diſtinguished from the Supreame power which is to level all to this maine end, the ſaifty of the People. 2. Cicero told us that the Conſuls and Praetors were bound to propose this end unto themſelves; & ſo we finde that the People, whoſe ſaifty is the Supream law, are diſtinguished from theſe who, whether in a Popular or Ariſtocratical govern. excerced the ſupreame povver. 3. This ſame is inſert in the law of the XII tables, & ſo it was in force whatever forme of government was exerced. But ſyes he Prael. 9. §. 19. Hence it will not follow, That People may, when they perceive, or cry out that they perceive their libertyes hurt in ſome things; take armes without the Princes leave, and violate all lawes and dutyes, and ſo raiſe tumults and ſeditions. Anſ. Neither do we ſay ſo, nor reſolve to draw any ſuch concluſions therefrom; but this is cleare, that when the covenanted work of reformation is overturned, laudable lawes eſtablishing the ſame, contrary to oath, and ſolemne Engagement, reſcinded, libertyes palpably violated, People in humanely perſecuted for adhereing to their Covenants, &c. and unjuſtly oppreſſed by the Kings emiſſaries, people may then take armes in their own defence, though the King should refuſe to conſent, or should countenance the oppreſſours, & carry p. 158on that inſlaving courſe. Againe, he ſayes let any read, and read over againe that ſentence of Cicero and ſearch every pairt of it, where vvill he finde any vvarrand for Subjects to riſe up againſt princes, to injure them or dethrone them. Anſ We do not intend to ſearch the ſentence for that end, it vvill ſuffice us, if hence vve finde ground to conclude the lavvfulneſſe of Peoples defending themſelves againſt tyrannizeing Princes, in caſes of neceſſity: and let him, or any for him, read, and better read that vvhole period, and narrovvly conſider and examine every ſentence and vvord in it, and ſee if he can finde this condemned.

Ere I come to ſpeak to the other particular, I shall from this draw ſome few things uſeful for our purpoſe, and,

1. It is irrational, and meer flattery to cry up and exalt the Soveraignes prerogative, in prejudice, and to the deſtruction of that, for which both He and His Prerogatives are, and were appoynted, as ſubſervient meanes, the ſaifty of the People. That being de jure his maine end, and it being for this cauſe end, that he is endued with ſuch power, and hath ſuch privileges and prerogatives conferred upon him, and allowed unto him, He and his Prerogatives both, should vaile unto this Supreame Law the ſaifty of the People: ſo that when they come in competition, The Peoples ſaifty of right, is to have the preheminence.

2. Since all other lawes municipal, made and eſtablished in a free Realme, muſt be ſubordinate unto this Principal, and Cardinal law, and have tendency to promove, corroborate and eſtablish it: Then, when any of theſe Lawes, in their letter, ſtrick directly at the root of the ſaifty of the People, and thoward and croſſe that maine and higheſt law, That law is Eaienus null, and really no law. So that it is but childish ſcrupuloſity, to ſtart at the letter of a law, when the Commonwealth is in hazard: and it is but brutish ignorance to object the letter of a low againſt ſuch as are endeavouring the ſaifty of the people, which is the maine buſineſſe, and to preſerve the Commonwealth from ruine; and deſtruction, againſt which no law is, or can be, of any p. 159force or value, but null and of no effect, for here it holdeth true, that ſummum jus is ſumma injuria.

3. Since Lawes themſelves, when in their letter they croſſe this maine law, muſt be accounted as no lowes really, and de jure; and may ſaifly be neglected and paſſed over, when the Peoples ſaifty is in no ſmall hazard by the ſtrick adhereing to the letter thereof? Then, much more may punctilioes, and law formalities be laid aſide, when the Commonwealth is in danger. When there is a fire in a City, all the formalities of order are not ſtrickly to obſerved.

4. Since The privileges, and lawful prerogatives of the Soveraigne muſt vaile, in caſes of neceſſity, unto this High and Supreame Law, the ſaifty of the People. Then no leſſe muſt the privileges of a Parliament yield unto this: for whatever privilege they enjoy, it is in order to this end, and the meanes muſt alwayes have a ſubſerviency unto the end, and when they tend to the deſtruction of the end, they are then as no meanes unto that end, nor to be made uſe of for that end.

5. Though King and Parliament both should conſpire together againſt the good of the Land, yet di jure they have no power or authority to deſtroy that End, and whatever they enact or doe, tending to the ruine of this maine and principal good, which they should have before their eyes, as their end, is ipſo facto null.

6. When acts and actings of King and Parliament tend directly, and are made and done of purpoſe, to deſtroy and overthrow the work of reformation in doctrine, worshipe, diſcipline and government; which was owned, and eſtablished by lawes, with all formalities of law, and was avowed by ſolemne vowes, Covenants, atteſtations, proteſtations, declarations, and engagements of all ranks of People, from the higheſt to the loweſt: and courſes are laid doune, to force and conſtraine People to renunce their Covenant with God, to turne perjured apoſtates; and when by acts and actings, the fundamental tearmes & conditions of our reformed conſtitution, confirmed by unrepelable lawes, p. 160by the King's accepting of his Crowne and Scepter, and all other Magiſtrates accepting their places, upon theſe tearmes, are overturned; and when by an arbitrary and illegal tyranny, no man hath ſecurity for his life, his lands, his libertyes, nor his religion, is not the ſaifty of the People in danger? No man needs to ſay who shall be judge, The Magiſtrates or the people? For all who have eyes to ſee may judge, whether the Sun be shineing or not, and all who have common ſenſe may judge in this caſe. When theſe things are done and avowed, they cannot be denyed, and no man of reaſon or religion will deny the inference.

Hence then it is cleare, that no man in reaſon can condemne the late act of defence, which was the only meane left for preſerving of that which all government and Governours should level at, viz. The ſaifty of the People, both in ſoull and body, their Religion, Lives, Liberties, Privileges, Poſſeſſions, Goods, and what was deare to them as men, and as Chriſtians, howbeit it vvanted the formality of the authority of Soveraine, Parliament or Councel. No man vvho vvill not deny this axiome, can condemne them as Traitors, ſeing they vvere noble Patriots and loyall to that Supreame lavv, The ſaifty of the People.

As to the other particular, concerning the abſolute power of the Soveragne, We ſay.

1. That the Soveraigne is under obligations to his People, and bound & limited by conditions, we have shewed above: which conditions he is bound to obſerve, ſee Hoen Diſp. Pol. 9.

2. That the Soveraigne is not exempted from the lawes of God, none but profane graceleſſe, vvreatches vvill deny; ſince he is a creature of God's and a ſubject to him, and his ſervant, Rom. 13. and therefore muſt not tranſgreſſe his lawes, under the paine of high treaſon and laeſe Majeſty. It was but a baſe ſaying of an impudent whore Iulia to her ſtep ſone Antonius Caracalla, ſi libet licet, an neſcis te imperatorem eſſe, and no leſſe impious was that ſaying of Anaxarchus to Alexander the Great, when he had Killed Clitus in a rage, Neſus adſeſſ…rem jovi juſtitiam, & fas eſſe quo quicquid actum a p. 161dominante fuerit, id jus & faſ ſit, as if for ſooth Alexander could do no wrong. It was an abhominable ſaying of theſe judges to Cambyſes. That though they could finde no law permitting a brother to marry his ſiſter, yet they knew of another law, whereby it was lawful to the Kings of Perſia to do whatſoever they pleaſed. All Divines will grant this: and ſo do Lawyers and Polititians: See Bodine de Repub. lib. 1. cap. 8. Hoenon. Diſp. Polit. 9. Theſ. 7. Paul. Voetius Iuriſpr. Sacra. Gerhard de Magist Polit. §. 119. Althuſ. Polit. cap. 19. n. 9, 10, 11. Timpl. Polit. lib. 5. cap. 1. Our Surveyer grants this, pag. 57, 58. and elſwhere.

3. Neither is he exempted from the Lawes of Nature and Nations; for the law of nature is the very Law of God, and God hath no where Subjected his Law unto the vvill of Princes.

4. Neither is the exempted from all the civil Lavves, ſayeth Hoenon. ubi ſupra. For, ſayes he, many civil Lavves are but declarative of the Lavv of nature, and conſectaryes thereof, and vvhat povver he hath, he hath from the People, and the People are certanely bound by theſe Lavves: Yea as Boxhornius ſayeth, Inſtit. Polit. lib. 1. pag. 33. Principi tantummodo licet quantum populus ei voluit licere: No more is lawful for him then the People will. The Surveyer in the forecited place ſayeth, [It is a Royal thing for a King to live by the ſame good Lawes, which are given by him to the People, and it is of efficacious influence upon them; to move them to walk in their dutyes orderly: Rex tenetur ſervare Leges, ſi non ut Leges tamen ut rationes. But he might know that our King is bound to obſerve the Lawes, even as Lawes, and muſt pay his debt, and ſubmit to the deciſion of Judges as well as others.

5. Our Surveyer confeſſeth, Pag. 75. That the King is bound before God to rule his People according to the Law of God, of reaſon and nature; yea and to take his directions in government, from the rational Lawes of the Kingdome (which are deductions from, or determinations of, the Law of God, reaſon and nature, to particular circumſtances) agreed to by the conſent and good likeing of his People. Hence it followeth, 1. That he cannot diſpenſe, p. 162by his prerogative Royal, with a juſt Law, according to his ſole pleaſure, and ſo pardon ſuch as deſerve death? 2. He cannot kill and ſlay whom he will, but according to law. 3. Nor can he alone make lawes. 4. Nor can his will ſtand for a law. 5. Nor is he the ſole interpreter of the law. 6. Nor in interpreting of the law, hath he a dominion over it to expone it as he wil: for if theſe be not granted, it cannot be granted that he is bound to rule us by the Law of God, of reaſon, and of nature, or by the Lawes of the Kingdome, but according to his meer will and pleaſure.

6. It muſt be a moſt unreaſonable thing to ſay, That the Soveraignes power is abſolute, which Royaliſts contend ſo much for, and ſay that he is above all law of man; for then he might do what he pleaſed without controle. But 1. did ever the People ſet a Soveraigne over themſelves, upon theſe tearmes? Did ever People ſet him over themſelves to rage at randon, to kill, murther, maſſacre, and do what ſeemed good in his eyes? 2. Their condition should neceſſarily, be worſe after the conſtitution then it was before. 3. The ſaifty of the People should not be the ſupreame Law. 4. He might then break all bonds and oathes, and keep no conditions which he had made. 5. If ſo, a Prince as a Prince, should be a great plague and judgment to a People. 6. All his Subjects should be formal Slaves unto him, their lives & all they have should be at his devotion. 7. He should not then be the Servant of God for the good of the People, contrare to Rom. 13: 4. 8. If this power agree to him as King, then it is from God, and ſo God should give him a power to ſin and tyrannize, which is moſt falſe. 9. Then there could be no Tyrants. 10. Yea a King as a King, should be a Tyrant in actu ſignato, and a Tyrant should be nothing but a King in actu exercito. 11. Yea if ſo, they might not ſo much as be rebuked by the meſſengers of the Lord, for their enormities, contrare to the many inſtances in the Old Teſtament of Prophets rebuking Princes 12 if his power were abſolute, lawes would become no lawes, neither were there need of lawes, nor should the making of lawes be a p. 163meane to promove the good of the Realme: all which are moſt abſurd.

And as for for our King That he hath no ſuch prerogative Royal, as puts him above all limitations is already ſufficiently evidenced by Lex Rex and by the Apology though this Surveyer is pleaſed to ſay Pag. 11. That his prerogative Royal is diſputed downe most weakly and foolishly in the Apology: Yet he will not ſee ſo much weakneſſe and folly there, as he imagineth, when ever he cometh to handle that diſput. But I grant it is eaſier to him to ſay, that all is weak and foolish, which pleaſeth nor him, then to undertake the confutation thereof. It is enough to him, that he shew his teeth once, and then run away. But if he will afterward undertake that debate, let him conſider the particulars there mentioned, and alſo theſe 24 particulars Mentioned by Lex Rex. Quaeſt. 23. pag. 205. 206. Unto which I shall adde (that he may make one work of all) theſe particulars, which will furder ſerve to confirme what is there ſaid, and prove our poynt.

1. As it is not proper and peculiar to the Kings of Scotland to make lavves, and to explaine and interpret lavves: ſo nor is it peculiar unto them, to appoynt punishments unto tranſgreſſours, & to liberate and free from the ſtroke of the lavv, As the late Parliament declared by their deed, in murthering ſome, and in liberating others guilty of Treaſon, more then ſuch as vvere executed: and this by politicians is made a part of the Soveraignity See Bondin. de repub. (mihi Edit. Gall.) pag. 236. Volgm. in Synop, de jure principum, pag. 58. Hoen. Diſput Polit. pag. 124. Timpl. Polit. Lib. 5. c. 1. q. 2.

2. The laſt appeal cometh not alwayes to our King: and yet this is reckoned among the royal prerogatives by Bodin ubi ſupra, Pag. 321. and Heen. Pag. 127. Timpl. Pol. Lib. 5. Cap. 1. quaeſt. 2.

3. It is not proper and peculiar to the King to appoynt new impoſts, cuſtomes, and taxes: but Parliaments do this, Act. 277. Parl. 15. Iam. 6. c. 2. Parl. 23. Iam. 6. Act. 1. Parl. 1. Char. 1. and act. 14. 15. of the ſame parl. act. 13. parl. Anno 1661. Charl. 2. and this is reckoned by the forementioned p. 164politicians among the prerogatives. Volgm. pag. 57. Hoen. pag. 129. Bodin. pag. 244. Timpl. ubi ſupra.

4. Nor doth it belong to him alone to appoynt the value of money, as is cleare by our acts. act. 67. parl 8. Iam. 3. act. 93. & 97. parl. 13. Iam. 3. act. 23. parl. 1. Iam. 1. act. 33. parl. 8. Iam. 2. act. 59. parl. 13. Iam. 2. act. 2. parl. 1. Iam. 4. act. 17. parl. 2. Iam. 4. act. 40. parl. 4. Iam. 4. act. 17. parl. 1. Iam. 6. act. 20. of the ſame parl. act. 249. parl. 15. Iam. 6. c. 9. parl. 16. Iam. 6. & yet the forecited authors reckon this alſo, among jura Majeſtatis.

5. He muſt not rule us by his meer will, but by the lawes of the land, act. 79. parl. 6. Iam. 4. act. 130. 131. parl. 8. Iam. 6. and not by any ſpecial grant or privat privileges act. 48. parl. 3. Iam. 1.

6. He is not the proper judge of all cauſes in the firſt inſtance act. 45. parl. 2. Iam. 1. act. 62. parl. 8. Iam. 3.

7. Some cauſes are fully exempted from his judgment and determination act. 105. parl. 14. Iam. 3.

8. The Lords of the Seſſion may finally decide cauſes, according to the act. 65. parl. 3. Iam. 1. without any liberty granted to the party to appeal to the King act. 63. parl. 14. Iam. 2. and this privilege of the Seſſion in ratified act. 93. parl. 7. Iam. 5. act. 1. parl. 2. Mar. act. 170. parl. 13. Iam. 6. act. 183. of the ſame parl. act. 211. parl. 14. Iam. 6. act. 23. parl. 1. Carol. 1. act. 23. parl. Anno 1661. Charl. 2. Yea the judges are allowed to diſcerne according to equity notwithſtanding of any write of the King's to the contrary, act. 92. parl. 6. Iam. 6. act. 47. parl. 11. Iam. 6. act. 79. of the ſame parl.

9. He is limited in granting remiſſons sic act. 46. parl. 2. Iam. 1. act. 51. parl. 3. Iam. 1: act 75. parl. 14. Iam. 2. act. 42. parl. 6. Iam. 3. act. 94. parl. 13. Iam. 3. act. 62. & 63. parl. 6. Iam. 4. act. 174. parl. 13. Iam. 6.

10. He is limited in alienating of lands, poſſeſſions or moveable goods act. 2. parl. 1. Iam. 2. act. 41. parl. 11. Iam. 2. act. 70. and 71. parl. 9. Iam. 3. act. 112. parl. 14. Iam. 3. act. 5. parl. 1. Iam. 4. act. 10. parl. 2. Iam. 4. act. 22. ejuſd. parl. act. 50. parl. 4. Iam. 4. act. 90. parl. 6. Iam. 4. act. 84. parl. 6. Iam. 5. act. 115. and. 116. parl. 7. Iam. 5. act. 6. parl. 9. Iam. 6. act. 176. parl. 13. Iam. 6. act. 159. ejuſdem parl. act. p. 165203. and 204. parl. 14. Iam. 6: act. 236. parl. 15. Iam. 6. act. 242. and 243. ejuſdem parl. act. 1. parl. 16. Iam. 6. cap. 4. parl. 23. Iam. 6. act. 10. parl. 1. Carol. 1.

11, So is he limited in erecting Royal brughs act. 43. parl. 11. Iam. 2.

12. He is limited in appoynting publick offices for admininiſtration of juſtice, act. 44. parl. 11. Iam. 2.

12. He may not paſſe gifts, ſignatures, or remiſſions, but with the conſent of the privy Council, act. 12. parl. 2. Iam. 4.

14. He hath been aftentimes admonished of his duty by the Parliament: ſee act. 23. parl. 1. Iam. 1. act. 5. and. 6. parl. 3. Iam. 2. act. 14. parl. 6. Iam. 2. act. 92. parl. 13. Iam. 3. act. 8. parl. 2. Iam. 4. act. 29. parl. 3. Iam. 4. act. 17. parl. 1. Iam. 6.

If this Surveyer hath a minde to defend the King's civil prerogative royal, or his abſolute power, Let him take all theſe particulars to his conſideration: but we goe on to our purpoſe.

From what hath been ſaid concerning this limited power of the Kings we draw theſe particulars for our purpoſe.

1. If the King be a limited Prince, Then he may in ſome caſes be lawfully reſiſted. Gerhard himſelf de Magiſtrat. Pol. §. 484. pag. 1303. in anſwering of that quaeſtion what shall Subjects do, if a Magiſtrate, who is an infidel or an haeretick, doth force them unto a falſe religion, ſayeth That ſuch a Magiſtrate who hath abſolute and unlimited power, and is under no compacts may not be reſiſted, by ſuch as are meer Subjects: So that he would grant in this caſe That it is lawful, for meer private Subjects to reſiſt a limited Prince, who is bound by compacts and contracts. It is true when he cometh afterward to ſpeak of reſiſting a Tyrant, and proponeth the quaeſtion §. 486. whether ſuch who have abſolute power and turne Tyrants may be reſiſted, after he hath cited ſome ſayings of Papiſts, he tells us §. 487. That all the arguments of iunius Brutus, Roſſaeus, Buckerius are ſolidly anſwered by Barclaius Albericus Gentilis, Cunerus and Arniſaeus, and this paſſage our p. 166Surveyer bringeth in Pag. 89. But who ſeeth not, that it cometh not at all home to our purpoſe, ſeing our King is not a King of abſolute power, though he hath his Kingdom by ſucceſſion, but is limited by conditions, and ſtipulations. And further every one may ſee the weakneſſe of Gerhard's reaſons, and how inconſiſtent he is with himſelf: For. 1. Sayeth he, ſuch is only under Gods juriſdicton. But alas 1. May not I reſiſt, a perſon, vvho is not under my juriſdiction? 2. Royaliſts will ſay the ſame of all Princes, even Barclaus and Arniſaeus. Againe he ſayes The People have tranſlated their whole power unto ſuch a Prince & cannot recall it. But 1. They have never tranſlated over unto him a power to inſlave themſelves, for that was not in their power to do. Nor 2. Could they ever give away the power of ſelf defence, which is their birth right. 3. Sayes he, Subjects, in this caſe, want God's command and a Superiour power. But 1. They have God's command in nature, no leſſe then theſe who are under limited Princes. 2. They have a ſuperior virtual power in caſes of neceſſity. 4. Sayes he, He is a Father of the Republict and not a Tutor only, and therefore as Children have no power over their Parents, no more have Subjects over their Princes. But, 1. Are not even limited Princes, as well Fathers to the Commonwealth? So that by this argument, it shall be as unlawfull to reſiſt theſe, which he will not ſay. 2. Yea ſuch abſolute Princes Look rather to be Tygers, and ſtated enemies unto the Commonwealth, then Fathers. 3. They have no proper Parental power, as we shewed, but Metaphorical. 4. Even natural parents may be reſiſted Ergo much more they. 5. We are not ſpeaking of giving judgment againſt Tyrants but of reſiſting of them: and if he grant this, vve have our deſire. And his queſtion vvas touching reſiſtence §. 485. Quest. 4.

2. A Limited and pactional Prince may be legally reſiſted, Ergo alſo with force when a legal reſiſtence cannot be had. The antecedent is true and no Scottish man vvill deny it, as to our king: For if he or any for him should pretend a right to their inheritance and intend an action of lavv againſt them, they may defend themſelves by lavv; or if he should p. 167take poſſeſſion vvithout a ſentence of lavv, They might purſue him and his tennants, or vvho ever came in his name, to take violent poſſeſſion, and procure letters of ejection, and the like: Yea by force they might vvithſtand any that should come to take violent and illegal poſſeſſion. The conſequence is hence clear, That vvhatever ground a man hath to defend his rights and poſſeſſion by lavv, the ſame ground he hath to defend his right by force, vvhen he cannot uſe the legal meane; for if the King had real right, and not he, unto vvhat he poſſeſſeth, it vvere as unlavvful to vvithhold the King from poſſeſſion of his ovvne, by quircks of lavv, as by force. Againe, This legal reſiſtence is no reſiſting of the Ordinance of God, but of the man, vvho ſeeketh no enjure. No more is this violent reſiſtance a reſiſting of the ordinance of God, but only of the man, vvho abuſeth his povver. Hence,

3. If the King have not abſolute power to do and command what he will: Then, when he croſſeth the rules preſcribed by God's law and Man's law, without any injury offered to the ordinance of God, he may be reſiſted by his Subjects, over whom he thinketh to exerce an abſolute, arbitrary and tyrannical power. The reaſon is becauſe. That power, which is not the ordinance of God, may be reſiſted, without the leſt injury done unto the true ordinance of God. But this abſolute power is no ordinance of God, it is not appoynted of him, nor allowed of him. Therefore, &c. But ſay Royaliſts, Though that abſolute and Tyrannical power be not ſimply from God; yet it is ſo from God, that no man can lawfully reſiſt it Anſw, 1▪ If it be ſo from God, as that it may not be reſiſted, then it is from God, and is the ordinance of God: for it is the ordinance of God that cannot, muſt not, be reſiſted. But ſayes the Surveyer Pag. 37. [It may be eaſily ſeen that ſubjection to the power (oppoſite to reſiſtence) is all alongs enjoyned (viz. Rom. 13.) whether the power be rightly uſed or otherwiſe: If it be rightly uſed, ſubjection without refuſeing active obedience is required: if it be not rightly uſed, ſubjection without reſiſtence, violent or forcible repelling of the power, is required upon this formal reaſon and ground; Becauſe even when the power p. 168is abuſed, it remaines a power ordained of God; (although the abuſe of it be not ordained) even as a man's eye remaines his eye, although ſometimes it is not rightly uſed. The formal reaſon of the ſubjection, and non-reſiſtence preſſed, is not the right uſe of the power, but becauſe it is a power ordained of God (however perverted in the uſe by man) Anſw.] 1. By this mans doctrine, The King might not be reſiſted if he should turne another Nero or Caligula, or should deal with us all, as the Turk doth with his ſubjects, or the King of Spaine, with his ſlaves in America. If he should fill ditches with his living ſubjects, and to ſatisfy his luſt and pleaſure should tumble them be thouſands downe a precipice into the midſt of the ſea: yea though he should bring in an army of Turks or Tartars to deſtroy all his ſubjects young and old; Though he should ſell and give away the whole land unto the Turk or any forraigne Tyrant, and become the moſt habited not our and compleat Tyrant: and should againſt all appearance of law, manifeſtly ſeek the deſtruction of the whole land, man, wife and childe, and of the very being of religion, according to law, and of all known libertyes, and should force and compel, with armed heathens, all his ſubjects great and ſmall, to offer ſacrifice to the Heathen Gods; and the like: For in all this and the like, there is but an abuſe of the power, and the power is ſtill of God however it be abuſed, and becauſe it is a power ordained of God, this abuſe muſt be ſubmitted unto, without the leaſt reſiſtence, is not this ſufficient to make all men abhore this man's principles? 2. He muſt ſay that it is not poſſible to reſiſt the abuſe of the power, but the power it ſelf muſt be reſiſted, and ſo, ſuch as do reſiſt the moſt dreadful tyranny imaginable, do reſiſt the ordinance of God, which is moſt falſe and abſurd. 3. If the abuſe of the power be not from God, then ſuch as reſiſt this abuſe, do not reſiſt that which is ordained of God, but that which is not ordained of God. And therefore reſiſting of the abuſe of the power, is no reſiſting of the ordinance of God. 4. Subjection is only required to that which is the ordinance of God, becauſe ſubjection is required when and where, and ſo far as reſiſtence is prohibited: Now reſiſtence to the ordinance of God, is p. 169only prohibited, and not reſiſtence to the carnal and bloody luſts of men, which is rather the ordinance of the devil then the ordinance of God. 5. The vvrong uſe or abuſe of the eye may be reſiſted, hindered, and obſtructed, without any injury done to the eye it ſelf. So may the wrong uſe or abuſe of Magiſtratical power be reſiſted, without any vvrong done unto the povver vvhichwhich is of God. 5. It is falſe to ſay that all reſiſtence of the abuſed power, is forbidden upon this formal reaſon and ground, becauſe even when the power is abuſed it remaines a povver ordained of God: Becauſe the abuſed power is not at all ordained of God, nor never vvas, it is no part of that povver vvhichwhich God ordained: a povver to murther the innocent, to kill the vvidow and fatherleſſe, and to oppreſſe the people of God, is not of God: God never appoynted that povver of David's to murther Vriah and to commit adultery vvith Bathshebah. Theſe vvere no acts of the Magiſtratical povver ordained of God, but acts of luſt the vvickedneſſe. 7. If this reaſon hold good, we muſt never reſiſt by refuſeing active obedience, let him command what he will: for his ſinful and unjuſt commands are but the abuſe of that power which is ordained of God, and the power even when abuſed by giving out edicts, and mandats, (according to this man) remaineth a power ordained of God, as a man's eye remaines his eye, though ſometimes it is not rightly uſed. Now how will he looſe his owne argument? what ever anſwer he give here, it will helps us out. Sure, if a man many refuſe obedience to an unjuſt command, of an abuſed power, without doing injury unto the power which is ordained of God, it will be no leſſe cleare, that a man may refuſe ſubjection to and reſiſt abuſed power, without doing hurt unto the power which is ordained of God. And I Deſire that the Reader vvould ſeriouſly notice this, and ſee how all he objecteth is anſwered by it, & the wicked inſnared in the vvork of his owne hands.

4. If the King have not abſolute power, but be limited both by the lawes of God, and by the lawes of Man: Then when he tranſgreſſeth the bounds preſcribed to him, he may be reſiſted. The reaſon is becauſe. He who is no Magiſtrate p. 170many be reſiſted. But the King going beyond his bounds is no Magiſtrate. Therefore he may be reſiſted, The propoſition cannot be denyed: for he vvho is not a Magiſtrate, is not that ordinance of God, which we are forbiden to reſiſt. The aſſumption is granted by Arniſeus de auth: princi. c. 2. n. 10. ſaying, Dum contra officium facit Magiſtratus, non est Magiſtratus, quippe a quo non injuria ſed jus naſci debeat. while the Magiſtrate doth againſt his office, he is no Magiſtrate; becauſe a Magiſtrate should do no wrong but right, l. miminerint 6 c. unde vi. c. quod quis 24.

5. If the King's power be not abſolute, and if he cannot do whatſoever he pleaſeth: Then when he makes his luſt a law, and followeth the dictate of his tyrannical corrupted will, he may be reſiſted: becauſe, what power he never gote from the People to exerce, if he exerce it, he may be, by them reſiſted. But the People never gave him a power to rule as he liſteth, and to do what his miſſed underſtanding and enraged will did prompt him to do. Ergo they may reſiſt him when he exerceth no power given him, but a power aſſumed to himſelf, through the corruption of his heart and wicked will.

6. If the King's power be not abſolute, then the People are not denuded of the power of ſelf defence. Royaliſts, and ſuch as trade their ſteps think, that an abſolute prince, or a prince integrae Majeſtatis, as they call him, hath gotten all Power from the People, even that power of ſelf defence (which yet is falſe) but though this were granted, it will not follow, that a limited Prince hath gote away that power of ſelf defence from the People, and left them naked to his tyrannical will, to be diſpoſed of, as he thinketh good.

7. The King's power being limited, and not abſolute, ſayes that, by the conſtitution and limitation, more regaird was had to the ſecurity of the People, then to the King's meer will and pleaſure; and that the Kings meer will and pleaſure should not be followed, but reſiſted, when thereby the good of the People and their ſaifty vvas in hazard: all men are bound to look more to the end then to the meanes, and to hinder ſuch things as are deſtructive of the end.

p. 1718. If the King's povver be no abſolute; then the Parliament's povver is not abſolute: And if the King may be reſiſted in caſes of neceſſity, becauſe his povver is not abſolute: Then the Parliament alſo may be reſiſted, upon the ſame ground, vvhen they do violence and oppreſſe the innocent: And if the Parliament may be reſiſted by Subjects, then it cannot be unlavvful for, Subjects, in the caſes of neceſſity, to defend themſelves againſt the unjuſt violence of their limited Prince, albeit they vvant the concurrence, countenance and conduct of a Parliament or Publick Repreſentatives.

9. If King and Parliament both be limited, they cannot make what lawes they wil. Nay, themſelves declare that they cannot make any particular act or ratification in prejudice of the lavvful rights of a third party, and therefore in the end of their Parliaments or Seſſions of Parliaments they uſually paſſe an act ſalvo jure cujuſlibet. And if their particular acts are no force, in ſo far as they prejudge the rights of a third perſon, nor to be ſubmitted unto nor obeyed, Then their other acts made in prejudice of the glory of God, of the good of his Church, and of the intereſt of Chriſt in the land, are of no force, nor to be obeyed and ſubmitted unto: and, if in the former caſe particular perſons are allovved to defend their rights, notvvithſtanding of theſe acts: Then much more may private Perſones be allovved to defend Chriſt's rights, and their ovvne rights, as to their ſoull & conſciences, notvvithſtanding of any act or lavv general or particular made to the contrary, the beſt vvay they can, vvhen all formal legal vvayes are taken from them.

10. If the King be not abſolute. He cannot execute the Lawes made, according to his owne luſt and pleaſure: nor may any inferiour judictory do ſo: For that is a piece of tyranny: and when he or they, following their owne tyrannical wills, tranſgreſſe the Lawes and Bounds preſcribed, and take an arbitrary way of executeing their cruelty, They may in that caſe be reſiſted: Becauſe that power is no proper magiſtratical power, but tyranny, and an arbitrary ebullition of rage, no power ordained of God, but the lawleſſe will of corrupt creatures.

p. 17211. Since He hath not abſolute power to execute the Lawes after an arbitrary manner according to his owne luſt & pleaſure, if when he is doing ſo, he may be reſiſted; then much leſſe can be Impower his Emiſſaries with an arbitrary, tyrannical, lawleſe cruelty, under pretence of executing the Lawes; or if he do, the reſiſting of ſuch in that caſe, can be no reſiſtance of the Ordinance of God. Neither God nor Man ever gave him power to conferre on others a Lawleſſe licenſe to oppreſſe, rob, ſpoile, plunder & tyrannize over innocents. And therefore the reſiſting of ſuch bloody executioners, without any lawful power, tyrannyzing over the ſubjects, can be no ſin or rebellion, condemned by God or his Law.

12. Since the King may not by an abſolute power command what he will. His Subjects are not bound to an abſolute obedience, but alwayes in the Lord: It being better to obey God then Man; and when his Subjects are not bound to obey, he cannot Lawfully inflict punishment on ſuch, as contraveeing his Lawes, obey the Lawes of God: Becauſe juſt punishments are for tranſgreſſions of juſt Laws: And when he inflicts punishment where God alloweth a reward. he goeth directly againſt his commiſſion, which is to be a terrour to evil works, and not to good Rom. 13: ver. 3. And when a Servant, or publick Meſſenger goeth contrare to his commiſſion, it is no diſloyalty to the King, to refuſe ſubjection unto ſuch. So nor is it diſtloyalty to the King of Kings, to refuſe Subjection unto his Miniſter, when he runeth croſſe to his ovvne expreſſe commiſſion. And therefore the Late Act of defence, being the defence of innocents in the caſe of extreame and inevitable neceſſity, againſt illegal commiſſions, contrary to the Lavv of God, cannot be branded vvith rebellion, but accounted an Act of lavvful ſelf-defence.