A Treatise of Monarchy, Treatise · Part 2

A Treatise of Monarchy · Treatise · Part 2

p. 30PART 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 p. 31the way of Government uſed, and to be uſed in this Realme, is a deſigned way: OnelyOnly 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 onelyonly 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 onelyonly 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, thataaDeclar 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.

p. 32Reaſ. 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: p. 33It 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; p. 34that 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: p. 35Our 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,Camb…n. Britan. Norma…. yet it was better then Harolds, who was onelyonly the Sonne of Goodwyn, p. 36Steward 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. Cambd…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, p. 37which 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.

p. 38CHAP. 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 hee cannot Judge by himſelfe or Officers, but in Courts of Juſtice; ſo thoſe Cours of Juſtice muſt have a conſtitution by a concurrence of the three Eſtates: They muſt have the ſame power to conſtitute them, as the Lawes which are diſpenſed in them.

Poſ. 4 Fourthly, in the very ſucceſſion; for though ſucceſſion hath been brought as a Medium to prove the Abſoluteneſſe of this Government yet if it be more throughly conſidered, it is rather a proofe of the contrary; and every one who is a ſucceſſive Monarch is ſo far limited in his power that he cannot leave it to whom he pleaſes, but to whom the Fundamentall Law concerning that Succeſſion hath deſigned it. And herein though our Monarchy be not ſo far limited as that of France is ſaid to be, where the King cannot leave it to p. 39his Daughter, but to his Heire male, yet reſtrained it is; ſo that ſhould he affect another more, or judge another fitter to ſucceed, yet he cannot pleaſe himſelfe in this, but is limited to the next Heire borne, not adopted or denominated: which was the caſe 'twixt Queene Mary and the Lady Jane.

Laſtly, in point of Revenue wherein their Power extendeth Poſ. 5 not to their Subjects Eſtates; by Taxes and Impoſitions to make their owne what they pleaſe, as hath been acknowledged by Magna Charta, and lately by the Petition of Right, the caſe of Ship-money, Conduct-money, &c. Nor, as I conceive, to make an Alienation of any Lands, or other Revenues annexed by Law to the Crowne. I meddle not with perſonall limitations, whereby Kings, as well as private men, may limit themſelves by Promiſe and Covenant, which being particular, bind onelyonly themſelves; but of thoſe which are radicall, and have continued during the whole current of ſucceſſion from unknowne times. Other limitations, it is likely, may be produced by thoſe who are skilfull in the Lawes: but I beleeve they will be ſuch as are reducible to ſome of theſe, which I take to be the principall and moſt apparent limitations of this Monarchy, and are a moſt convincing induction to prove my Aſſertion in the former Chapter, That this Monarchy, in the very Mold and Frame of it, is of limited conſtitution.

CHAP. III. Whether it be of a Simple or Mixed Conſtitution?Queſt. 3.

WHen the Government is ſimple, when mixed; alſo Sect. 1 where the mixture muſt be, which denominates a mixed Government, is explained Part 1. Cap. 3. Now I conceive it a cleare and undoubted Truth, that the Authority of this Land is of a compounded and mixed nature in the very root and conſtitution thereof. And my judgment is eſtabliſhed on theſe grounds.

p. 40Reaſ. 1 Firſt, It is acknowledged to be a Monarchy mixed with Ariſtocracy in the houſe of Peeres,Anſwer to the 19. Propoſit. and Democracy in the houſe of Commons. Now (as before was made appeare in the firſt Part) it is no mixture which is not in the Root and Supremacy of Power: for though it have a ſubordination of inferiour Officers, and though the Powers inferiour be ſeated in a mixed ſubject, yet that makes it not a mixed Government; for it is compatible to the ſimpleſt in the world, to have ſubordinate mixtures.

Reaſ. 2 Secondly, that Monarchy where the legiſlative power is in all three, is in the very Root and Eſſence of it compounded and mixed of thoſe three; for that is the height of power, to which the other parts are ſubſequent and ſubſervient: ſo that where this reſideth in a mixed ſubject that is in three diſtinct concurrent Eſtates, the conſent and concourſe of all moſt free, and none depending on the will of the other, that Monarchy is in the moſt proper ſenſe and in the very modell of it of a mixed conſtitution: but ſuch is the ſtate of this Monarchy, as appeares in the former queſtion, and is ſelf-apparent.

Reaſ. 3 Thirdly, that Monarchy, in which three Eſtates are conſtituted, to the end that the power of one ſhould moderate and reſtrain from exceſſe the power of the other, is mixed in the root and eſſence of it: but ſuch is this, as is confeſſed in the anſwere to the ſaid Propoſitions. The truth of the major will appeare, if we conſider how many wayes proviſion may be made in a Politicall Frame to remedy and reſtraine the exceſſes of Monarchy. I can imagine but three wayes. Firſt, by conſtituting a legall power above it, that it may be regulated thereby, as by an over-ruling power: Thus wee muſt not conceive of our two houſes of Parliament, as if they could remedy the exorbitances of the Prince by an Authority ſuperiour to his; for this were to ſubordinate him to the two Houſes, to ſet a ſuperiour above the Soveraigne, that is, to deſtroy the being of his Monarchicall power. Secondly, by an originall conveyance to him of a limited and legall power ſo that beyond it he can doe no poteſtative act; yet conſtituting no formall legall power to refraine or redreſſe p. 41his poſſible exorbitances; here is limitation without mixture of another conſtituted power: As the former of theſe overthrowes the power of the Soveraigne, ſo this makes no proviſion for the iudemnity of the people. Thirdly, now the never enough to be admired wiſedome of the Architects and Contrivers of the frame of Government in this Realme (who ever they were) have found a third way, by which they have conſerved the Soveraignty of the Prince; and alſo made an excellent proviſion for the Peoples freedome, by conſtituting two Eſtates of men, who are for their condition Subjects, and yet have that intereſt in the Government, that they can both moderate and redreſſe the exceſſes and illegalities of the Royall power, which (I ſay) cannot be done, but by a mixture, that is, by putting into their hands a power to meddle in acts of the higheſt function of Government; a power not depending on his will, but radically their owne, and ſo ſufficient to moderate the Soveraignes power.

Now what can reaſonably be ſaid in oppoſition to theſe Sect. 2 grounds, proving a fundamentall mixture, I cannot deviſe. Neither indeed is a mixture in the Government denied by the greateſt Patrons of irreſiſtibility; onelyonly ſuch a mixture they would faine make it, which might have no power of poſitive reſiſtence. I will therefore ſet down what they probably may or do object to this purpoſe, and will ſhew the invalidity thereof.

Firſt, this mixture ſeems not to be of diſtinct powers but of Object. 1 a Power & a Councell; authority in the Prince to give power to Acts, and counſell in the two Houſes to adviſe and propoſe wholeſom Acts; as if the royall power alone did give life to the Law: onelyonly he is defined in this power, that he cannot animate any Act to the being of a Law, but ſuch as is propoſed unto him by this great and Legiſlative Councell of Parliament. Sol, This were probable, ſuppoſing the Parliament were onelyonly in the nature of a Counſell; but we know it is alſo a Court, the High Court of Parliament: Now it is evident that a Court is the ſeat and ſubject of Authority and p. 42power, 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 ſcorſi… 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 p. 43to 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 p. 44of 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 p. 45to 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 p. 46its 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.

1The 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.

2Secondly, The power of impoſing taxes and payments on mens eſtates: that the King by himſelf cannot aſſume mens p. 47properties 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 3Kingdome 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 tra…ſigendum, that the adviſe and ſenſe of the Community may be for direction. p. 48But 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 the publike intereſt, it ſhould be managed by ſuch an authority and way as that is. Secondly, ſuch as introduce a neceſſity of publike charge, be it matter of War or elſe, if to the effecting of it the Purſe of the Kingdome be required, it is evident that it ought to be done by the concurrence of all, becauſe they onelyonly jointly (as appeares before) have power to impoſe a publike charge on the eſtates of men. And it were all one to put the power of our eſtates in the hands of one, as to put the power of ſuch undertakings in his ſole hands, which of neceſſity bring after them an engagement of publike expence.

CHAP. V. Queſt. 5 How far forth the two Estates may oppoſe and reſiſt the will of the Monarch?

THis Queſtion is in the generall already handled in the Sect. 1 firſt Part, ſo that it will be eaſie to draw thoſe Anſwers there to this particular here: Therefore conformably to what I then affirmed, I will anſwere this Queſtion by divers Poſitions.

Poſ. 1 Firſt, the Monarch working according to his power, not p. 49exceeding the Authority which God and the Lawes have conferred on him, is no way to be oppoſed either by any or all his Subjects, but in conſcience to Gods ordinance obeyed. This is granted on all ſides.

Secondly, if the will and command of the Monarch exceed Poſ. 2 the limits of the Law, it ought for the avoidance of ſcandall and offence be ſubmitted to, ſo it be not contrary to Gods Law, nor bring with it ſuch an evill to our ſelves, or the publike, that we cannot be acceſſary to it by obeying. This alſo will find no oppoſition. Diſobedience in light caſes, in which we are not bound, makes an appearance of ſlighting the power, and is a diſreſpect to the perſon of the Magiſtrate. Therefore Chriſt, to avoyd ſuch offenſe, would pay tribute, though he tells Peter, He was free, and need not have done it.

Thirdly, if hee command a thing which the Law gives Poſ. 3 him no authority to command, and it be ſuch as would bee inconvenient to obey, in this caſe obedience may lawfully be denied: This alſo findes allowance from them which ſtand moſt for royall power. Doctor Ferne in his Preface acknowledges obedience to be limited and circumſcribed by the eſtabliſhed Lawes of the Land, and accordingly to bee yeelded or denied. And Sect. 1. ſayes he, We may and ought to deny obedience to ſuch commands of the Prince as are unlawfull by the Law of God, yea by the establiſhed Laws of the land. Here he ſayes more then we ſay; yea more then ſhould be ſaid, as appeares in the ſecond Poſition: it is not univerſally true, that we ought.

Fourthly, if he exceed the limits of the Law, and proceed Poſ. 4 in courſes illegall, meanes there are which it is agreed upon the Subjects may uſe to reduce him to legall Government; ſo much Doctor Ferne allowes Sect. 4. Cries to God, Petition to the Prince, Deniall of Obedience, Deniall of Subſidie, &c.

Fifthly but the point in controverſie is about poſitive and Poſ. 5 forcible reſiſtance, the lawfulneſſe of which ſome doe utterly deny and others doe as confidently maintaine: but yet this point might be brought to a narrower ſtate then in p. 50the confuſed handling of it, it uſually is: by diſtinguiſhing twix't forceable reſiſtence uſed againſt the Kings own perſon, or againſt inferiour Officers and Inſtruments adviſing to, or executing the illegall commands.

Sect. 2 For the firſt, as I have before expreſſed my ſelfe, force ought not to be uſed againſt the perſon of the Soveraigne, on any pretence whatever, by any or all his ſubjects; even in limited and mixed Monarchies: for if they be truly Monarchs, they are irrevocably inveſted with Soveraignty, which ſets their perſons above all lawfull power and force. Alſo the Soveraign power being ſo conferred on that perſon: The perſon and power cannot be really ſundred, but the force which is uſed to the one, muſt alſo violate the other: for power is not in the Soveraigne as it is in inferiour Officers: as water is otherwiſe in the ſpring then in the channells, and pipes deriving it: It is not inſeperably in them, and therfore they offending, force may be uſed againſt them without violation of the Ordinance of Authority. Theſe Arguments approve it unlawfull in any: That which the Dr. brings, I approve as ſtrong againſt all private force, where he allowes defence againſt the perſon of the Prince himſelfe, ſo farre as to ward his blowes, but not to returne blowes, no though for naturall defence: becauſe the Common-Wealth is concerned in his perſon, Sect. 2. And to divert a private evill by inducing a publique, is unjuſt and unlawfull: ſo that for this point of force againſt the perſon of the Prince: I thinke there ought to be no contention. If any have bin ſo raſh to hold it lawfull on theſe grounds, that the whole Kingdome is above him becauſe they make him King, and that by miſcarriage he may make a forfeiture, and ſo lay himſelfe open to force: I do iudge theſe grounds very inſufficient: unles the Kingdome reſerve a ſuperiority to it ſelf, or there be a fundamentall clauſe of forfeiture on ſpecified cauſes; and then it is not properly a Monarchy: but all this hath been already handled in the generall Part.

Secondly, for Inſtruments of oppreſsion of publique liberty if the wrong be deſtructive, and no other meanes of p. 51prevention, but force, be left: I am perſwaded it may be uſed, and poſitive reſiſtence made againſt them; And if I find any contradiction from the moſt rigid Patrones of Royalty, it muſt be only in this point. And here I muſt complaine of the indiſtinct dealing of that Doctor in this matter; who mingleth both theſe points together: and ſcarce ſpeakes any thing to reſolve mens conſciences in this: But ſpeakes either in generall, or elſe of force againſt the Princes owne perſon: Whereas I thinke, the caſe which ſticks moſt on the conſcience at this time, is this latter: Of oppoſing, mi…-leading and miſ-imployed ſubjects, which he ſpeaks very little to. Nay, he ſeems to me, after all his diſclaiming of reſiſtence, to come home to us, and though ſparingly, yet to aſſent to lawfullnes of reſiſtence in this point. For Sect. 2. ſpeaking of Davids guard of armed men: He ſaies, It was to ſecure his perſon againſt the cut-throats of Saul, if ſent to take away his life: He meanes to ſecure it by force, for Souldiers are for force: He meanes no negative ſecuring by flight, for that may be done even againſt Saul himſelfe: but he ſpeaks of ſuch a ſecuring which might only be againſt cut-throats. So then he grants ſecuring by force againſt theſe: But they went on Sauls command, and moſtly with his preſence. Againe, in the inſtance of Eliſha, he ſeemes to acknowledge lawfullneſſe of perſonall defence againſt the ſudden and illegall aſſaults of Meſſengers, he means by force, for he ſpeaks of ſuch which he will not allow in publique, which can be underſtood of none, but by 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.

p. 52Aſſert. 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 p. 53the 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 onelyonly 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 p. 54he 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 onelyonly 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 onelyonly in the undefined being of it, being Gods immediate Ordinance, and not in this ſpecificated or determinate being: wherefore it p. 55hath 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 onelyonly may, but alſo ought to uſe it for publike ſafety: yea p. 56they 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 p. 57of 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 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; p. 58as 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 onelyonly pro forma, and at pleaſure p. 59required. 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. Bilſo… conſenting, where he ſayes,Bi…ſ…n of ſubje… 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 p. 60unlawfulneſſe 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 p. 61then 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 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 p. 62but 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 p. 63formally 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: 'Tis 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 p. 64other 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 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 p. 65violation 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 onelyonly 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 …hen they pleaſe. I deſire thoſe Authors, before they ſettle their judgement in ſuch grounds (which I feare p. 66will 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 p. 67aſſume 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 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 p. 68nature, 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, p. 69I 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 King… 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 p. 70with 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 …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 p. 71all 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 …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 p. 72by 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.

p. 73If 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: 'Tis 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 p. 74peruſe 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 ariſe conſiderable in the courſe of handling both: Now nothing remaines, but to reſolve the Conſcience by this precedent light, what to …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 p. 75or 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 p. 76bringing 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 p. 77the 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 againſt his Majeſty, they impute nothing to Him, nor uſe force againſt Him, but thoſe deſtructive Counſellours, and their Abbettors which are about Him; becauſe their danger is not from His intentions, but from theirs. It is anſwered, that His Majeſty offers to ſecure them, the Lawes, Liberties, and Religion, by any Acts they ſhall deviſe to that purpoſe.Parliam. Remonſtrance May 19. 1642 They will tell you, Their danger is not from want of Laws to ſecure them, for they are ſecured by Law already; their danger is from Men, and their Plots and Deſignes to overthrow Law; and a danger of ſubverſion of Law cannot bee ſecured by Law; ſucceeding Lawes can be no better nor ſtronger then former Lawes: ſo that where thoſe men and their counſels are in power, whoſe aime hath been the ſubverſion of Parliaments, Liberties, and Lawes; and thoſe Doctrines remaine affirmed and maintained by the Clergie of that ſide, which ſubvert all limitations of Monarchy, make all Lawes Acts of grace, and revocable Immunities granted to Subjects; condemning for Rebellion all force uſed even by the Parliament it ſelfe, againſt the meaneſt Inſtruments of violence employed by the Princes Will; making the Princes Will and Gods Ordinance one and the ſame thing, of the ſame latitude; ſo that reſiſtence of one is reſiſtence of the other: ſuch Counſellours and ſuch Doctrines are (they ſay) the ground of publike danger, from which no Lawes but Juſtice can ſecure us. Publike Liberty and Power of forcible reſiſtence of Inſtruments of ſervitude are ſo conjoyned, that if you make it unlawfull ſimply to uſe ſuch power of reſiſtence, you make it unlawfull for a People to be free.

What courſe then can be ſufficient to anſwere their Demands Sect. 3 of ſafety, if Lawes cannot doe it?Meanes of reconcilement propoſed. Though I incurre the cenſure of high Preſumption, yet I will be ſo bold to afford p. 78my opinion herein, ſubmitting it to the cenſure of every Judicious Reader; wiſhing it were worthy to be ſcanned by thoſe, in whoſe hands it is to heale our diviſions. What honeſt heart doth not bleed, to ſee the ruine of this late flouriſhing Kingdome goe on ſo faſt? Who can doe other then ſpeake his minde, who conceives hee thinkes of any thing which may conduce to Peace and the re-uniting of this divided Body? Suffer mee therefore to diſcloſe my heart in a caſe, in which every good man hath a deep intereſt. Thus then I could heartily deſire.

Petit. 1 Firſt, that the Parliament would deſire and ſeeke in this unuſuall way of Force, no more then what makes neceſſarily for their, and the publike ſecurity: for none can juſtifie force in them, any further then for ſecurity of their Priviledges, Lawes, and frame of Government.

Petit. 2 Anſw. to the Petition of Commons Ian. 28. 1641.Secondly, that His Majeſty would be pleaſed (according to his gracious Reſolution, viz. To deny onelyonly thoſe things, the granting whereof would alter the Fundamentall Lawes, and endanger the foundation on which publike happineſſe is built:) to condeſcend to all Acts of ſafety, both by eſtabliſhing of Lawes tending to it; and removall of Perſons of deſtructive counſells and Judgements, becauſe the danger alledged is from ſuch.

Petit. 3 Thirdly, that becauſe their maine feare hath been, that while his Majeſty is ſwayed by ſuch Perſons, whoſe Judgement and endevours have been for Abſoluteneſſe, the Militia of the Kingdome may be by them (making uſe of his Majeſties Authority) employed in bringing to paſſe their long fomented, and not yet deſerted deſigne; His Majeſty would be pleaſed (for this preſent) to authorize ſuch over the Militia whom the Houſes ſhall approve of, not thereby diſparaging his power over the Militia, which by Law is inveſted in him; but ſatisfying by a condeſcent of grace their Feares from apprehenſions of preſent danger.

Petit. 4 Fourthly, that the two Houſes (in their wiſedom) would put a difference between thoſe Perſons who were the ancient D…linquents, Contrivers, and principall Agents in the former deſignes of Arbitrarineſſe; and thoſe Members of both Houſes; who ſince the Kings with-drawment, and their p. 79aſſuming the Militia, have gone from the Houſes to ſerve and adhere to his Majeſty: For ſince the time that both parts have declared themſelves to be in danger, many good ſubjects and Patriots have followed the parts, from conſcience and perſwaſion of the truth of Allegations on either ſide, as their care and opinion of either Part hath lead them; (not that I can acquit them, who on any miſ-leading aſſiſt the deſtructive party, from guilt, as Acceſſaries and Inſtruments of ſo unnaturall a deſigne) but that I cannot ſee how the authority and freedome of either of the three Eſtates can chooſe but undergoe a ſhew of diſparagement, if its adherents and propugners (when it cries out of danger of ſubverſion from the other, and calls and requires their aſſiſtance) ſhould be proceeded againſt and puniſhed as Delinquents, when they profeſſe their aime hath beene no more then to preſerve the juſt rights of any of the fundamentall Eſtates of the Kingdom, without impairment of the other.

Fifthly that if poſſible, all thoſe might be re-admitted into Petit. 5 their ſeverall Houſes, which are not guilty of the former deſignes for Abſoluteneſſe, and have nothing alledged againſt them but their adherence to the King in this diviſion, and might fit and act ſecurely there, according to the due freedome of their Houſes.

Sixthly, that his Majeſty (for the ſake of Peace, and preſent Petit. 6 neceſſity of compoſing this diſtemperature) would be pleaſed to put himſelfe upon the Judgment and Affection of the two Eſtates ſo aſſembled in their full Bodies and ſuſpend the uſe of his Negative voice, reſolving to give his royall aſſent to what ſhall paſſe by the major part of both Houſes freely voting, concerning all matters of grievance and difference now depending in the two Houſes. I am confident, if ever this War be tranſacted without the ruine of one ſide, which will endanger, if not undoe the whole, it muſt be by ſome ſuch way of remiſſion of rigour on both ſides as I have now deſcribed: Which the God of Peace, in whoſe hands are the hearts and counſels of men, ſpeedily and graciouſly effect for his Name ſake.

FINIS.

End of the text · Philip Hunton, A Treatise of Monarchy (1643)