Vindication of the Treatise of Monarchy, Chapter 5
CHAP. V. An Anſwer to the Sect. 4. concerning the Conſtitution of this Monarchy.
Sect. 1 A Fourth ſort of the Doctors ſuppoſals are concerning the Conſtitution of this Monarchy, which in words he granteth to be limited and mixed, but comming to explaine himſelfe, he makes ſuch a limitation of it and ſuch a mixture as is indeed none at all, being to be found in the moſt Abſolute and ſimple governments in the world: for he every where ſuppoſeth it limited only morally in the exerciſe, not in the power: And ſo mixed, that there is but one ſimple power; a mixture made of one ſimple principle, ſuch a one as never was heard of in the world before. And this he delivers on his bare word, never bringing any proofe of it, thinking it enough if he can except againſt that which I have ſet downe concerning theſe things in my Treatiſe. Among other Aſſertions which I have there about the ſtate of this Government: there are two which this Replyer doth oppoſe. One is p. 31. That the ſoveraignty of our Kings is radically and fundamentally limited: which I have made good by five Arguments, and added a ſolution to the two chiefe which may be made againſt it. The other is, p. 39. That the Authority of this Land is of a compounded and mixed nature in the very root and conſtitution of it. This I have confirmed by three Reaſons; and have anſwered three Objections which may be made againſt it. Now I deſire the Reader impartially to weigh what I have there ſaid; and to compare it with this Doctors Reply; and then judge whether thoſe truths ſtand not firme againſt all that is brought to infringe them. But let us ſee what he oppoſeth. He proceedes not in any orderly courſe, to ſet downe his Antitheſes and prove them; and to give Anſwer to what I have brought on the contrary; but firſt ſpends ſome time in conſidering what this Government was in its Originall; as if it muſt needs remaine ſtill ſuch as it was at firſt; and could not receive any alterations, and graduall accompliſhment in proceſſe of time. And then he ſets on my Arguments, but how feebly we ſhall eaſily diſcover.
Here the firſt thing I did tax in the Doctors booke, was that he affirmed things contradictory: for he tells us he is againſt Abſolute power in our Kings; and arbitrary Government: And yet he alſo affirmes, that our Kings hold by right of conqueſt, yea of three conqueſts. And that the Houſes of Parliament are more ſubject to our Kings, then the Senate of Rome was to their Emperours. Alſo that the finall judgement is in One. Now how theſe ſo openly contradictorie Aſſertions can ſtand together he doth not ſhew us. Only he challengeth my ingenuity, if either he propoſed this as a concluſion to be proved, that our Kings are abſolute, p. 21. Neither doe I affirme that he did: Only I ſay, he holds things contradictory; that he holds ſuch grounds which make all Kings abſolute, ſc. that no ſupreme is or can be more then morally limited. Indeed he ſpeakes much of limitation morall; of limitation in the exerciſe of power; this makes a great noiſe of limitation, but indeed are but meere vailes to cover over Abſoluteneſſe, and make it the more paſſable, which he is aſhamed to propoſe to the world in expreſſe termes. Suppoſe he did not mention thoſe conqueſts to win an arbitrary power to the King. Yet ſure in affirming more then once, that he hath ſuch a right, he doth as much as if he ſaid he may uſe an arbitrary power if he will; for if he hath a right of Conqueſt, he hath an Arbitrary right, by the Doctors own confeſſion, p. 22. and if he hath a right of Arbitrarineſſe, it is his lenity he doth not uſe it. In the Anſwer to the firſt Argument which I brought for the Abſoluteneſſe of our Kings (which was that They hold by conqueſt, and therefore are Abſolute.) I do not ſay, the Doctor drawes ſuch a concluſion: No; but he layes down the Antecedent; and then any body elſe may draw out the concluſion.
I fetch not the root of ſucceſſion, ſo farre backe as the Saxons, Originall of this Monarchy.as this Replier traduces, to cut off advantages which may be made from the Normans entrance, p. 22. But becauſe himſelfe began there to make up a Trinity of Conqueſts: This drew me on that diſcourſe of the Originall of this Monarchy; nor that the cauſe had any need of it; for it is his work to prove the Government abſolute, if he will have it ſo; alſo ſuppoſe it were as abſolute as the Norman Conqueſt, by him improved can make it; yet that hinders not, but that it may become really and radically limited afterward, by condeſcent, as appeares in the former chapter. Concerning the Saxon entrance, I ſaid it was not a conqueſt, ſc. properly and ſimply, but an expulſion. He anſwers, This is neither true, nor greatly materiall, p. 22. I ſay, it is both true and materiall: It is true; for all the Britaines which retained their name and Nation, were they many or few, were expelled into Wales: All the reſt in gentem, leges, nomen, linquam que , vincentium conceſſerunt; as himſelfe cites for me out of Mr Cambden. And it is very materiall; for if they which only remained here in gentem & leges vincentium conceſſerunt; Then the Conquerers, as I ſaid, kept their old forme of Government; the Saxons came not into the condition of the conquered Brittaines; but they into the old liberty of the Saxons. Hereupon grew there a neceſſity of inquiry into the Government of the Nation, before they came hither; that ſo we might know what a one they eſtabliſhed here; and brought the remaining Brittaines into. And a record of more unqueſtionable authority then Tacitus I could not imagine; nor a more expreſſe teſtimony for a limited forme in the very potestas of it; of which ſort he affirmes the Governement of all the Germane Nations was. How ever the Doctor is pleaſed to call it a conjecture, a dreame and uncertainty; No, the expreſſe teſtimony of ſuch an Authour is not ſo: Rather that probability of theſe Saxons not being then a people of Germany, but did afterward breake out of the Cimbrica cherſoneſus, is ſo; which himſelfe dares call no more then a probability. I ſay, 1. It is a greater probability, that they were a people of Germany before they came in hither; for the Angli which accompanied them in that invaſion, were queſtionles Germanes, and reckoned by Tacitus among that people, doubtleſſe they were neighbours in habitation which were joyned in that voyage and conqueſt. 2. Suppoſe the matter were not cleare of the Saxons, yet is it of the Angli which gave denomination to the Land and people, who no doubt retained their Laws and Government, ſayes Cambden; which was limited in the very royall power ſaith Tacitus. But this Doctor would make men believe, as if I endeavoured to deduce the very Modell of our preſent Government from that Saxon ingreſſe: Whereas all that I ayme at, is to make it appeare that in ſemine, in the rude beginnings it is ſo ancient; and ſhall affirme the limited power of the Engliſh Kings, and liberty of the ſubjects to have been from thence continued till now, unleſſe he can bring ſome better proofes of its interruption, and induction of an unlimited power, then as yet he hath. Alſo to ſhew that the Doctors Tenure by Conqueſt is vaine in the firſt of the Three, for the Saxons gave none ſuch to their Princes, but kept their Lawes, and came not under the Title of a conquered people. Next, the Doctor cenſures my delineation of the preſent platforme of our Government, p. 44. (for it is nothing with him for advantage to skip over 9. or 10. Pages) that ſo he might make a ſhew as if I ſet down that modell as derived from the Saxons out of Germany; and ſo ſpends neere two pages in this unreaſonable way of traducing me; Whereas he cannot be ignorant, that in many places, yea at preſent is forced to confeſſe, p. 24. that I acknowledge our Government came up to this exactneſſe and full height by degrees and in continuance of time; but indeed he had nothing elſe to ſay againſt that Deſcription of this platforme or any one of thoſe 6. Suppoſals of which it conſiſts; and therefore when he had fained as if I had derived it from the beginning of the Saxon Government in this Land, he calls it a phanſie, againſt the credit of all Histories and Chronicles, p. 24. and ſo lets it goe. Let the Reader judge, whether I doe not there apparently ſet it down as a deſcription of our now exiſtent Frame of Government: And whether any thing therein is not according to paſt hiſtorie, and preſent experience: Yea I challenge the Doctor to except againſt the leaſt part of it, as not ſo: if he cannot, he doth wrong ſo to miſcall and deride it. After this Excurſion, he returnes back to the 36. page of my Book, and the proper buſineſſe of that Chapt. which was his three Titles by Conqueſt. I looked that after his firſt, he ſhould have made good his ſecond Conqueſt, ſc. the Daniſh, and made good what he had ſaid, that our Kings hold by that too, as one of the three. But not a word of that for ſhame: He paſſes p. 26. to the Norman entrance: And to prove that William held this Land by conqueſt, he cites out of Mr Cambden that in victorie quaſi Tropheum, he diſpoſed of the Lands of the Conquered, changed their Tenure, abrogated what Engliſh Lawes and customes he pleaſed, &c. Indeed when he had gotten full poſſeſſion, he did what he pleaſed; but ſactum non probat jus. I have proved, and the Doctor hath not gainſaid, 1. That his Title by which he claimed was a ſucceſſive and Legall Title. 2. That this Title got the favour of a great party, and was a maine Meane facilitating his acquirie. 3. That he was inaugurated by virtue of that Title. 4. After he had gotten the Kingdome, though he did many things arbitrarily, yet he ſetled himſelfe and his ſucceſſours in the state of Legall Monarches, as the Doctor confeſſes, p. 27. What then is become of his Triple Tenure by Conqueſt; when heres not one can be made good; when it comes to a due ſcanning? That of Mr Cambden, that the Kings of this Land have Poteſtatem ſupremam, & merum imperium, is no more then that of the Statute which the Doctor ſpeakes of, p. 47. that it is an Empire governed by one ſupreme head, which we acknowledge; for that merum imperium muſt be underſtood in a moderate ſenſe; elſe it ſayes more then the Doctor himſelfe profeſſes to own: Though Mr Cambdens judgement in this caſe is not of the authority of a proofe.
Sect. 2 Then he paſſes to my Arguments, p. 28. But, by the way, let me tell him,My Arguments for Limitation and Mixture vindicated. I brought 5. Arguments to prove this Government limited, and 3. to prove it mixed: and it had been meet he ſhould have brought ſomewhat, beſide his bare word, to prove it limited only in the exerciſe, that is, Abſolute in the power; but he brings no proofe, becauſe he had none: Yet perhaps though he had not wherwithall to confirm his own, yet he hath to demoliſh my Aſſertions: Let us ſee therefore his ſolutions of my Arguments. But before we come to weigh them, becauſe he tells us p. 28. it were an Argument fit for a skilfull Lawyer to labour in, and ſlights my endeavour becauſe I bring not Hiſtory and Antiquity, but doe goe about to reaſon him into a beliefe of thoſe Aſſertions, Let me premiſe ſomething concerning that courſe of proving them. 1. The work of bringing History and Antiquity doth belong to him who affirmes ſuch a Title of Power in our Kings; Let him ſhew how and when it was conveyed to them: He which challenges a right to that which was once undoubtedly mine, muſt prove his right and he can have no more then he can bring evidence for. 2. On his defaut, if I undertake a needleſſe office to prove my Negative, there are but two wayes imaginable to doe it, one is by records of hiſtories ſetting out the firſt conſtitution of a ſtate, and the Termes on which … people reſigned up their liberty to a ſubjection. So in the Antient Romane State, the Venetian, the late Belgik Ʋnion, and others which have at once, viſibly and lately been compoſed, it is likely that way might be taken. The other is by demonſtrative collections drawn from the inſtitution of the preſent compoſure of a State. Thus alone is it poſſible to diſcerne and prove the conſtitution of a Government which ſprings not up at once, but by unſeen degrees and moments, whoſe fundamentall conſtitutive acts ſtand upon no record. This is the condition of moſt Governments in the world which have ſprung from ſmall, rude and unknown beginnings. And of this in particular. For 1. A limitation of Royall Power was brought hither by the Saxons and Angli our Anceſtours, hath been proved. This was, as thoſe times were, very rude and unpoliſhed, it is likely ſuch as Captaines in Armies have, who can doe nothing of moment without the adviſe and conſent of the Counſell of warre. 2. This Limitation of Power and Libertie received ſome more formall and ſetled bounds afterwards by cuſtomes and Lawes before the Conqueſt, as appeares by the Common Lawes, which are, as it were, the baſis and foundation of this Government, the Statute Lawes being but after ſuperstructives; Theſe Common Lawes did not grow up at once, but by degrees, and were unwritten Customes and Ʋſages gaining authority by unknowne preſcription, above all written Lawes; and were afterward committed to writing by men skilfull in the Lawes. 3. At length, and after the Conqueſt it was perfected to this Parliamentarie Forme; and even this being at firſt but rude, grew to this exactneſſe by length of Time, and infinite Contentions. This latter way only being left us; that I took, and the Doctour hath no cauſe to deſpiſe it. For when a thing of preſent State is made evident by Reaſon drawne for palpable experience of it's preſent compoſure, it is madneſſe to denie it to be ſo, becauſe I cannot tell when it began to be ſo: Yea when the Queſtion is of preſent ſtate, it is a ſurer way to find out the Truth, then by records of its Originall conſtitution: For in time the Frame of a State may receive reall variations from what it was at firſt, as the Romane State, and moſt others have done; for the contracts of men are at pleaſure alterable; and an argument drawne from Monuments of firſt coalition, would then be fallacious.
Well; be the way never ſo juſtifiable, which I have taken, yet the Doctor dares pronounce my Arguments inſufficient to cleare what I have undertaken. Tis eaſie to pronounce it; let us ſee how he makes good his ſentence. I proceeded diſtinctly firſt to lay down my Arguments proving Limitation, p. 31. Then thoſe which proove Mixture, p. 40. He mingles them together: And to my firſt, third, fourth and fift proving Limitation, Anſwers that They prove only limitation in the exerciſe of power, p. 28. Why ſo? Neither the Denomination of Liege, nor any preſcription can make us believe, that the Limitations of power had any other beginning then voluntary condeſcent. As if a Government by voluntarie condeſcent might not receive a radicall Limitation. But it lies on him to proove, it was by ſuch condeſcent; if he can bring no record for it, it muſt in juſtice be held originall, and ab initio. Thoſe two denominations of Leige Soveraigne: And Liege people doe prove the very Soveraignty and Subiection Legall; but that is not ſo which hath only a morall Limitation; the denominations argue the bond 'twixt them to be Legall: And when Subjects have ſuch a Libertie by cuſtome and Law, that they owe no farther ſubjection, then (when, or how ever they came by it) yet the very power of the Monarch is limited, as we heard in the former Chapter, unleſſe any will put a vaine power in the Prince, to which no Subjection is due; but of this enough there. Then he paſſeth to my Reaſons proving mixture, which are three, p. 40. of my Treatiſe. The firſt is, That it is confeſſedly mixed of a Monarchie, Ariſtocracie and Democracie, therefore radically, and in the very Power. He anſwers, It is not neceſſarie the mixture ſhould be in the Power: but it is ſufficient if there be a concurrence of Perſons whoſe conſent is required to the exerciſe of Power, p. 39. Thus he anſwers to the concluſion; but ſayes nothing to the Antecedent. 1. And indeed if it be mixed of theſe three, his anſwer is againſt common-ſenſe; that a mixture of Monarchie, Aristocracie and Democracie ſhould be ſatiſfied by annexion of perſons to the Monarch, having meere conſent: for theſe are names of Power of Government; for Ariſtocracie and Democracie are Powers not Perſons, as well as Monarchie: therefore a compoſition of theſe three muſt be all of Powers. 2. And indeed this chimera of a mixture in the exerciſe of Power, is plaine non-ſenſe. For a mixture in the Acts or Exerciſe ſuppoſeth a mixture in the principles of Action, that is in the very Powers: A mixt Act proceeding from a ſimple Power is ſuch ſtuffe that I never heard before. Now if a mixture in Acts argues a mixture in Powers: Theſe Powers muſt be coordinate and ſupreme: for ſubordinates make no mixture; alſo Powers concurrent to ſupreme Acts, ſuch as Legiſlation is confeſſed to be, cannot be but ſupreme Powers. Neither can any man living cleare that paſſage which he ſpeaks of p. 45. from pure non-ſenſe, ſc. This coordination is but to ſome Act or Exerciſe of the Supreme Power, not in the power it ſelfe: For Concurſe to an Act, im…lies a Power of Concurrence: and Concurſe to a ſupreme Act, argues a ſupreme Power; for an inferiour Power cannot afford a coordinate concurrence to a ſupreme Act. So that his Over-ſeers were not miſtaken when they checked him for that paſſage, and ſaid, He granted a coordination of Subjects with his Majeſtie in the ſupreme Power. But here he brings a ponderous Reaſon, ſo often before urged. If the mixture be in the Supremacie of Power, how can the King be the Only ſupreme and Head. He cannot ſalve it with his Apex poteſtatis, unleſſe the King muſt be the Crowne or Top of the Head onelyonly; for they alſo muſt be our Head and our Soveraignes, if they be mixed in the Supremacie of Power, p. 29. Here I anſwer once for all to this ſo frequent an injection. 1. That the Titles of Head and Supreme are fully ſatisfied by this, that he is the ſole Principle and fountaine from whence the execution of all Law and Juſtice flowes to his people by inferiour Officers and Courts, all whoſe Authoritie is derivatively from him as its head. 2. That theſe Titles in proper conſtruction import only Ʋtmoſt chiefty, nor doe they agree to any kind of right in the fundamentall and radicall Powers of a Kingdome; but to the principall and tranſcendent Intereſt: Another may have a right in the ſupreme Power, yet not be ſupreme, nor Head: becauſe not having a ſupremacie in that Power: So it is in the Colledges, the Fellowes have a fundamentall intereſt in the power of Government, yet that hinders not, but that the Title of Head and Chiefe is given to him who is Governour; will the Doctour jeſt at it, and ſay they be Heads and Supremes too, and the Warden or Maſter is but the crowne or top of the head. Alſo in the naturall bodie, from whence the Metaphor of Head is borrowed, are three Fundamentall and radicall powers ſcituate in the three Principall parts: yet none will ſay, the Heart and Liver are Heads too, becauſe they partake the ſupreme Powers of nature. Let not the Doctour therefore ſtraine a Metaphor ſo farre as to make himſelfe merry with it. Let him really anſwer my Arguments by which I prove a radicall Limitation and mixture. Let him anſwer; is not the Legiſlative Power the ſupreame? Have not the Houſes an Authoritative concurrence and Influx into that buſineſſe? If he avoyd a punctuall anſwer hereto by carping at words, he will prove himſelfe a ridiculous Argumentatour while he ſeekes to make others ſeeme ſo.
My ſecond Argument for radicall mixture, is from the Legiſlative Power being in all three. He anſwers, That Phraſe is ſatisfied and explained by that concurrence and conſent in the exerciſe of ſupreame Power. It ſeemes that invention of his muſt ſerve all turnes. Is a Legiſlative Power ſatisfied by a bare powerleſſe conſent? I demand: is that Conſent cauſall and Authoritative; or meerly Conſiliarie and unauthoritative? And whereas I prove that they have an enacting Authority by that received and ſet clauſe in the beginning of Acts; Be it enacted by the Kings moſt excellent Majeſtie, and the Authoritie of the Lords and Commons aſſembled in Parliament. He tels us a Vote and Power of aſſenting is a great Authority, p. 29. I enquire not how great it is: I aske whether that be all; whether that clauſe, which as expreſſely as words can, aſcribes an enacting Authority to them, be ſatisfied by ſuch a Power of Aſſenting? He ſees it doth not, and therefore tels us of a former phraſe which ran thus: The King by the adviſe and aſſent of the Prelates, Earls and Barons, and at the inſtance and requeſt of the Commonaltie hath ordained, &c. Suppoſe anciently ſome ſtatutes runne under that forme: that adviſe and instance, muſt be underſtood of an Authoritative and enacting advice and inſtance; as the latter formes explaine it: for it is equall that the latter expound the former; and not the contrary, as the Doctor would perverſly have it, eſpecially conſidering the Doctors Expoſition cannot ſtand with the latter; but mine agrees very well with the former. But how bold is this man, when during ſo many yeares and Parliaments, both Kings and States by this received Forme, have acknowledged and eſtabliſhed a concurrent enacting Authoritie in all three, yet he dares argue and oppoſe ſo expreſſe and confeſſed a truth? But in this anſwer, he diſcovers a great deale of ſuperficialnes, in granting the Houſes a Power of conſenting to the eſtabliſhment of laws; and yet denie them a Legiſlative, enacting Power: for ſuch a Power of conſenting (if it be neceſſary) is indeed a Power of enacting; for though in tranſeunt Acts one may ſtand by and conſent to the doing, and yet not be Efficient; yet in immanent Acts which are done, per immediatam volitionem, by a meere expreſſion of the Will, A concurrence in conſenting, and a concurrence in doing is one and the ſame thing: Now Legiſlation is an imminent Act, conſiſting in a meer expreſſion of an Authoritative Will.
My third Argument for Mixture, was from it's end, which was Reſtraint from exceſſe. 1. He grants ſuch a Reſtraint, but morall and legall, not forceable, p. 30. I anſwer, He deceitfully confounds morall and legall, as I ſhewed before. 2. The End of Mixture in a State, is that there may be a power of reſtreyning more then ſufficient (as his Majeſtie expreſſes it) but the Doctors meere morall power, is very inſufficient; It limits not the Power at all; nor the Exerciſe properly, no more then an Oath, or Promiſe without it, would doe: that is, makes it ſinne to exceed. But of this before. But here, which is very rare, He doth not onelyonly denie, but give a reaſon of it. If the fundamentall Conſtitution had intended them ſuch a Power, it would not have left a power in the Monarch to call, or diſſolve them, which would make this power of theirs altogether ineffectuall, p. 30. This Reaſon ſeemes to have ſome weight in it, I will therefore, the more ſeriouſly conſider it. 1. Whatever ſtrength it hath had in it; now it hath none, becauſe that power of diſſolving is now by Law ſuſpended, for this Parliament; and after it, a neceſſity by Law impoſed of reducing that Power of Calling Parliaments, into Act, every Three yeares. 2. Neither was it true before theſe Acts, that ſuch a Power was left in the Monarch at pleaſure to uſe or not; for it was by ancient Law determined how often they ſhould be convocated. 3. But being granted that this Power is ſimply and fully in the Monarch, yet I denie, that hence it followes, that it would make that Power of the Houſes altogether ineffectuall; becauſe that de facto, though it hath been in the Monarch ſo long, yet it never hath made it voyd; but they have exerciſed a limiting Power, as Hiſtories relate, enough yea and ſometimes too much, over the Monarch, notwithſtanding his Power of calling and diſſolving them. Thus in the Colledges, the Fellowes have an effectuall, and more then morall limiting Power, though the Governour hath the Power of calling and diſſolving their meetings. And anciently the prime Patriarch had the power of Calling and diſſolving generall Councels, yet they had a Power of limiting, yea of Cenſuring him for exorbitances for all that. The Reaſon is, becauſe many things fall out oft in a Government, inducing ſuch neceſſities on the Monarch, that he for their ſupply will chooſe to reduce ſuch power into act of Calling, and ſuſpend ſuch power of diſſolving, although he know thoſe States will uſe their Limiting Power in reducing ſuch exorbitances, and puniſhing thoſe deareſt inſtruments which have been uſed in them. This the Conſtitutors of this Frame preconſidering might put in the Monarch this Power, and yet intend to the other States a Legall and effectuall power of reſtraining his exorbitancies, by uſing Force, not againſt him, but it's procurers and Inſtruments. Thus we ſee, there is no need of entring on that diſpute, Whether this Power of calling and diſſolving the Houſes be placed in the Monarch, as all his other are, not abſolutely, but with limitation of neceſſary reducing it into act, on the laſt exigencies of the Kingdome.
After this he returns to my other Arguments for limitation; One of which, drawne from radicall Mixture, he fully omits; but now having ſhewed the invalidity of his exceptions againſt my arguments for it, I have given force to this argument for Limitation, drawne therefrom. That which he ſets on laſt is my firſt for Limitation in the very Power: ſc. the Kings owne expreſſe confeſſion: That the Law is the meaſure of his power: That the Powers which he hath are veſted in him by Law, p. 31. of my Tract. And, as if this were not more then he could anſwer, the Doctor addes a third for us, in which he aſcribes to the Houſes a power more then ſufficient to reſtraine his Exceſſes, p. 30. Here are Authorities as punctuall and expreſſe as can be imagined. Yet the Doctor reſolving not to be reaſoned into a beliefe of theſe things, out faces all this evidence; and to that end frames three Anſwers ſuch as they are. 1. He ſayes, His Majeſtie had few of his learned Counſell about him. 2. His gracious expreſſions ought not to be drawne out to his diſadvantage. 3. All that can be gathered from them doth not come up to theſe Concluſions, p. 31. In the two firſt he openly enough taxeth his Majeſtie of unadviſed expreſſions, excuſing it from abſence of his learned Counſellours (you may ſoone imagine whom he meanes) Thus diſparaging the Kings judgement and all then about him; and tels us we muſt not be unjuſt to ſet thoſe ſayings on the racke; that is, we muſt not take them in their plaine meaning; but on this mans wreſted and ſenceleſſe interpretation: What doe not theſe men dare doe and ſay? Before we heard him correcting the expreſſions of all Moderne Parliaments, teaching us to reforme them by the old. Here the King and his Counſell ſetting out in ſuch a time Declarations to all his Subjects to informe them about the nature and extent of his Royall Power: He compares thoſe ſerious expreſſes to Trajans ſudden and exceſſive ſpeech: He will correct Kings, Counſels, Parliaments and all, but he will have his way: To him they muſt come to learne how to ſpeake, and what powers they have. But let us heare his Doctorall Expoſition of his Majeſties expreſſes. Hee ſayes, The Law is the meaſure of his Power: Wee muſt underſtand his meaning to be that his power is bounded by Law: but it doth not follow, that his power wherein it is not limited by Law is not abſolute and full, p. 31. Here is profound interpreting: If his Power be limited by Law? is there any part of it not limited by Law? If the Law be the meaſure of it, ſure it is even with it; for the meaſure is equall in extent with the thing meaſured: Thus he papally interprets againſt the direct meaning of the Text: But he doth not ſhow us how that can be underſtood, when he ſaith, His powers are veſted in him by Law, if the Law be a limitation only of exerciſe: Nor how their Reſtraining power is more then ſufficient, if it be only morall; which, how unſufficient a reſtraint for exorbitance it is, every ones experience can enough teſtifie. I admire a man who pretends to conſcience and judgement ſhould take ſuch liberty of interpreting. Certaine if thoſe Reaſons and Teſtimonies doe not clearly proove a radically limited and mixed Conſtitution of this Monarchy I ſhall deſpair of ever proving any thing by way of Argument any more.
I had an intent to have ſubnexed other Arguments to make good Sect. 3 thoſe Aſſertions: but I ſee it is to no purpoſe,7 Queries concerning this Governement. for he is reſolved not to be reaſoned into them: He can denie all as failing either in the Antecedent or Conſequent, p. 32. The Power of this Kingdome he muſt have unlimited: He will give no Reaſon for it; nor heare no Reaſon againſt it. Yet, ſith he profeſſeth himſelfe a Reſolver of Conſcience, Let me therfore be ſo bold as to propoſe certaine Caſes to him. 1. Why in the late Oath propoſed to be taken by all his Majeſties Subjects the Power of enacting Statutes is ſworne to be joyntly in the Kings Maieſtie, Lords and Commons in Parliament. Certes the Doctor writ this Reply before that Oath was printed in Oxford, or elſe he did not conſider of it. He cannot ſay, I hope there were but few of his counſell about him when that was framed: if the Doctor hath taken it, He hath forſworne this paſſage of his Reply; and ſworne them a joynt enacting power. 2. Why we are enjoyned to ſweare that we doe beleeve that the Subiects of England are not obliged by any Act made either by the Kings Maieſtie ſolely, or the Houſes ſolely, &c. Sure the Doctor hath abjured his other Aſſertion of the unlimited Power of the King, if he hath taken this Oath; for if Power be ſolely his, then an Act made by him ſolely is obliging: If they be not obligatorie, they are not Authoritative; and ſo the mixture and limitation is in the Authority it ſelf. Here is no place left for his diſtinction of Active and Paſſion ſubiection. For, 1. Will any thinke that the intent is to ſweare men to be bound not to doe, but to ſuffer? 2. The Beliefe of a non-Obligation proceeds indifferently and as fully concerning the ſole Acts of the King, us the Houſes but I beleeve the Doctour will not ſay we are obliged to paſſive ſubiection to the ſole Acts of the Houſes. 3. I would know if the States doe limit onelyonly morally, what they doe, which is not done without them? A Promiſe and Oath do limit morally without them. He will ſay they may admoniſh him; and denie their conſent, and ſo iudge his Acts invalid: He meanes ſtill morally invalid; and ſo would they be without them. 4. Suppoſe the Monarch minded to eſtabliſh a Law, which he judges needfull; and the States being averſe, he enacts it without them; Is it not a Law? It hath all the Legiſlative authoritie in it. He will ſay it is not duly made. 1. I grant it: but yet it is a Law, for it hath all the Power of a Law. 2. But is it not duly made? Why, the power of last deciſion is in the King alone: Suppoſe he define that the Intent of his Predeceſſours in granting this conſenting power to the Houſes had no intent to hinder, but further themſelves in eſtabliſhing good lawes; and therefore now they not concurring by aſſent to this needfull Act, He ought not to be hindred, but may lawfully doe it without them. He is the laſt Judge in this caſe; and it muſt be held ever lawfully enacted. So that in the reſult here is left to theſe States by the Doctors grounds neither Civill nor Morall Limitation, but at pleaſure. 5. If Limitation in our Government exempt Subjects from a neceſſity of active Subjection; but not from paſſive; How is it that our Lawes doe not only determine what the Monarch ſhall command, but alſo what he ſhall inflict: what ſhall be accounted Rebellion, what Felonie, &c. and what not; alſo what he ſhall inflict for this crime, and that crime, and what not? Sith the Lawes limiting what he ſhall command, doe limit our neceſſity of active Subiection; it will follow, that the Lawes limiting what he ſhall inflict, doe limit our neceſſity of paſſive Subiection. Here's no evaſion by ſaying the Laws do limit him morally what he ſhall inflict, and if he inflict beyond Law, he ſinnes in it; but we muſt ſuffer: for the Doctor acknowledges, that the Lawes defining what he ſhall command doe ſo limit our active ſubjection, that we have a ſimple exemption from any neceſſity of Doing; and therefore alſo the Laws defining what he ſhall inflict, doe ſo limit our paſſive ſubjection, that we have a ſimple exemption from any neceſſity of ſuffering, beyond thoſe Limitations; for alſo, if they did not free us from paſſive ſubjection, it were unlawfull not only to reſiſt, but alſo to avoid ſuffering even by flight. 6. When the liberties of magna Charta, and other grants have been gotten and preſerved, and recovered at the rate of ſo much trouble, ſute, expence and bloud, whither by all that adoe was intended only a morall liberty, definement in the Monarch, and not alſo of the power it ſelfe; only that he might not lawfully exorbitate from eſtabliſhed Lawes, and not alſo that he might have no Authority or Power to exorbitate at all? Sure this was their aime, for the former he could not doe before. 7. The Law granting a writ of Rebellion againſt him who refuſeth to obey the ſentence of the Judge, though he have an expreſſe Act of the Kings will to warrant him: doth it not ſuppoſe thoſe exceeding and extrajudiciall Acts of the Kings will to be unauthoritative, and unable to priviledge a man from Reſiſtance?
If the Doctor by his faculty can reſolve theſe Caſes, He will doe much in way of ſatisfaction of my conſcience; but if he cannot they will prove ſo many convincing arguments that the Power of the Monarch in this Frame is not unlimited.
Now having made good my Aſſertions, I expected another worke; ſc. an Examination of his Reaſons for unlimitedneſſe, and ſimplicity of Monarchicall Power, but he is not guilty of my fault, he doth not goe ſo much as to reaſon us into a beliefe of it. He doth in vaine expreſſe a deſire hee hath that ſome skilfull Lawyers or Divines would helpe him at this dead lift; yet he is like to goe alone in this wild untroden path of defending an unreſiſtibleneſſe on ſuch ſuppoſals: ſhall we think any Divine will ſecond him, in juſtifying his unwritten fancie about Gods Ordinance neceſſarily inveſting all the acts of his will, who is ſupreme? Or any ſound Lawyer will overthrow the grounds of his Profeſſion, that the Royall Right, Authority and Government of this Realme is both founded on, and meaſured by the Laws thereof. Yea it is very remarkeable, that his Majeſtie in all the Declarations and Expreſſes which I have ſeen, doth not once touch upon this way, ſc. a challenge of ſuch a latitude of Authority as can preſerve deſtructive inſtruments from force; but condemnes the now Reſiſtance, by ſolemne proteſtations of innocency, and intention of governing by the known Laws.