Touching our Present Impositions of Loyalty and Obedience, Chapter 3
CHAP. III. The grand, and more difficult Cases in point of Subjection as to this Land, discussed freely, and resolved.
IT must be known, if it be not already, that the person, or persons, in whom the Supreme authority does reside (let it be where it will) has an Absolute and Universal power supposed to them by the Word of God, which if it receive any restraint or limitation, it is from the Constitution, Laws, or original Agreement only of the Nation where they are. This must be understood rightly, not in materiâ Indefinitâ (for Kings by Conquest that make their own Charter (or own Terms) are set in the line of the Law of God and Nature, says Hooker) but in materia Politica. And indeed that is so necessary …n the nature of the thing, that we cannot conceive a Power Supreme unto whom no man can say What doest thou? that is, which is unaccountable to any other, but it must be free and unlimited. Not but the Office is limited (to use Dr. Taylor's words), the Prince hath his duty set him as well as we, and the Laws of God oblige him equally, and that from the penalty (he being alike obnoxious to it) as the meanest person; but the Power is unlimited (says he) that is any otherwise then by his duty, and the Laws which are Civil cannot oblige him from (or through) the penalty, but upon the account of Ingenuity and Equity. Licet non teneatur ipsius legis vi coactiva, tenetur vi tamen quadam directiva; Ratio siquidem naturalis dictat Principem legem istam servare quam is tulerit, says Coveruvias. To this agrees Suarez De Legibus l. 3 c. ult. And, Quae ex jure naturae dependent ijs princeps etiam tenetur, quia licet sit Dominus aliorum, subditus tamen est Naturae & civis Mundanus, is solidly spoken by Arnisaeus De Jur. Ma. l. 1. c. 3.
The Power is unlimited, I say, as to the word of God (Take it in its Proper matter, and that Negatively, not Possitively, for Christianity in things of this nature does not, de novo ponere, but rather supponere), but it receives limits from the Constitution. How far the Power of Kings may extend says Mr. Hooker (not altogether to my thoughts) the Articles of Compact between them and the people is to shew, not only those at the beginning, which for the most part are worn out of knowledg, but whatsoever hath been after in a voluntary manner condescended to, by positive Laws, or custom reaching beyond the Memory of Man. I know to this purpose, there is more then one sort of Government; and that of Monarchy, is either Despotical (or Arbitrary) according to Will: Or Regal according to Law. In the one there is no propriety of the Subject, therefore called Imperium herile. But the other is of free Subjects, who have propriety in their Estates and Goods. Such is ours, when this allay is so eminent, that neither the Purse nor the Laws, is in the Power of the King but by the Parliament, and that freely chosen by the people. Upon this account, there are some great Laws in a Nation such as Magna Charta, and Petition of right (Augustissima illa libertatum Anglicarum diplomata & Sacrae anchorae) in this Land, which do oblige the King more particularly, and ought to be preserved inviolable. Now what if a Prince intrench upon these Laws, Put the Case at the highest, what if he should violate them? May the Subject take Arms, or rise against him for that? I answer, if I may distinguish here between the Kings own person and government, and those that act under him or are his Instruments, it were more easy for me to know what to say: But if I must speak indiscriminately, I will speak as a Foole, I think not; seeing such Laws themselves are with us, not Conditio regnandi, but Sponsiones prineipis, and who hath right to ask him What doest thou, or call him to account for it? Regum timendorum in proprios greges, Reges in ipsos imperium est Jovis. Pacta conventa no doubt (says Seravia) by the Laws of God and Nature are to be kept. l. 4. c. 9. Quae vero si violari contingat ab eo cui summum Deus commisit imperium, nullum esse supra supremum judicem alium hic in terris, qui eum judicet cogat{que} in ordinem. l. 4. c. 11. De Imperandi authoritate, & Christiana obedientia.
It is true there are certain things the King swears to in his Coronation Oath, but if these be Conditions of his Reign or Crown, how comes he to be King, and to Reign before he be Crowned? If the Coronation it self be no condition (that is causa sine qua non), how shall any thing done at his Coronation? Coronation gives not the King his Kingdome, which he hath jure haereditario before. Ʋnctio Regem factum significat, non ad Regnum jus addit, says the Author Deus & Rex. If there be conditions of Reigning, then may he make a forfeiture, and be called to account, and how then shall the great prerogative of the King (as Lawyers speak) be, that he can do no wrong? The meaning whereof is, that his Officers and those whom he imploys, must see they act according to Law, or they must answer for it, but the King himself is accountable to none but God. Who doubts but a Master may promise some things to his Family, and they have a right thereby to his dealing with them accordingly, whose Authority over his house cannot be Conditional, out of question? By the way I gather, there can be a right which may not be defended (I mean by force, if one could do it). The Persian King was most absolute, foreign, and yet that he took an Oath with his Diadem, so that he might not change their Laws, we may not only have Xenophon and Diodorus, but the Scripture in part to assure us. And that the Kings of Epyre were wont to take an Oath foreign, to Govern by law, as ours do, Plutarch may be consulted in the life of Pyrrhus.
But suppose Conditions, and they be broken, unto whom does he make forfeiture, or who shall take it? There are in some States Powers which are Coordinate, and there the Less may joyn and bring the Greater to question; and what some Divines have said on the 13th. to the Romans will be current in those States. But is there any such with us, that derive not from one that is Supreme? Who then is it shall do this? Not the Parliament, because they are called by the Kings Writ, and when the Authority by which they sit is from him, they cannot be Empowred by that in any act that is over him. Nay, will they derive the Power from the Constitution with himself, though he calls them? if he forfeits yet, and ceases to be King, they must cease also, and be no Parliament with him. The Parliament then cannot do this as a Parliament. Nor can any Magistrate or Officer, as so, for the same reason. Nor yet any subject, as Subjects, for that is contrary to all Order and Duty, and a destruction of the fifth Commandment. What then can be said? Why this only, that the forfeiture is made to the Community (which is properly the Matter of a Commonwealth before they have …orm) not under any other relation, but as a Community, and they must take it. If this be said, then cannot any part, or party, take Arms against the King, it must be confessed, not only because that he is Major singulis will be granted, but because that is not the Community. And if it must be the whole, as he is held Minor Ʋniversis, then can I conceive of what is said very easily, in the notion; but really it is a thing indeed never to be done. For if there must be at least the Major vote or consent of the Community, how shall this consent be given? who shall gather them together, or take their votes? If any undertake it, they must be men in Power, others cannot: But the present Power that any have in their hands is derived from him, and they cannot use it against him. Nay they cannot act by it, but they justify it. It is unjust to act by his Authority, if it be forfeit. How! Act by it, to the denial of it? They cannot act then by any Authority they have to rise against him, the Cause of it, and they have no other to act by; and consequently they cannot act at all. Again, whosoever they be rise first they are but single persons, a part, a party, or at most a multitude, and as a part or single multitude they cannot do it, will be granted. The Sword does signifie defensionem Regni & patriae, says Bracton, and no man as a private person bears that. As the whole, they cannot rise together, as a part they may not; and so is the thing never to be done. I will add, if there be any thing yet, you may conceive kept in; That, there are the Oaths of Allegiance and Supremacy have passed over the Nation; the tenour of these Oaths runs absolute, which will hold those that have taken them under the State and Capacity of Subjects: and consequently neither can the Sovereign make a forfeit, nor the inferiour judg the superiour according to the light of Nature.
What then may the King act Arbitrarily? God forbid? I say first, Let him take heed, he is therefore Sworn to the Laws, that being not lyable to man, he should stand bound toward God. I can say next, that no Subject but may choose if he command contrary to Law to obey him, as he must not rise against him And that is perhaps bridle enough to Sacred Majesty that if any do serve his Arbitrary Will, he shall suffer for it as against the Kings Royal Crown and Dignity, though it be by personal command. The Case of Empson and Dudley is known in the Law and our Chronicles. It is the Kings Legal, not Personal command in point of inconsistency, binds the Subject. But what if any regard not that, and he persist in his Will? We must wait for a Parliament, and there we are provided of redress against such men. But what if he shall not hearken to his Parliament? Then may they with-hold the Subjects Purse in supply of his wants. And thus far hath the Constitution of our State put the reins into the Subjects hands toward the bridling personal Majesty to his Laws. But what if he shall thereupon dissolve the Parliament, and take by Force what he cannot have by Law?
I will premise here, that some (and not the unlearned) who have handled this question, and maintain that the people are not upon any cause to take Arms against their lawful Sovereign, do come in the stating the matter to distinguish between a King and a Tyrant; a Tyrant in Title and Act; and Tyranusin exercitio they will account does exuere personam Regis, and excidere de jure, etsi haereditario.
Legitimae potestati propter Deum & conscientias obligamur, in Tyranno verò nihil ordinatum a Deo, sed omnia Deo adversa & reipublicae detrimentosa, says Heningus Arnisaeus. Regimen tyrannicum (says Aquinas) non est justum quia non ordinatum ad bonum Commune, & ideo perturbatio huj…s non habet rationem seditionis, nisi sic inordinate fiat quod majus detrimentum sequatur. 22ae q. 42. Art. 2. De isto tyranno qui justum habet titulum, sed exercitio apparet tyrannus incidit in legem Juliam de vi publica. Bartolus Consil. lib. trac. 6. Quod scribis (says Barclay to Boucher) rempublicam posse eum occidere qui in ipsam hostiliter agit (si intelligatur de illo qui hostili animo, sive animo perdendi rempublicam agit) verissimum est; sed non ea ratione quia populus principe superior sit, publica{que} penes populum potestas resideat: Sed ea solum ratione, quod quia perdendae reipublicae animum gerit, is semet dominatu & principatu omni exuit, at{que} ipso jure, sive ipso facto, Rex esse desinit. In that noted Book Adversus Monarchomacos. Num igitur obstrinxit se scelere (says Cicero) si quis tyrannum occidit? Populo quidem Romano non videtur, qui ex omnibus praeclaris factis illud pulcherimum factum existimat. In that Classick Book of his De Officiis. Enim verò maximas injurias inferunt homines propter cupiditates im moderatas, & non propter res necessarias: Verbi gratia tyrannidem occupant, populum{que} impio dominatu opprimunt, non ut ne algeant, sed ut suas libidines impune expleant. Idcircò magna praemia praeposita sunt, non ei qui furem, sed ei qui Tyrannum occideret, (says Aristotle in his Politicks) l. 2. c. 5. He is the Minister of God for thy good saith St. Paul, otherwise he is not Gods Minister, and hath to other purposes none of Gods Power. Dr. Taylor Cas. l. 3. p. 35. As for them (says Hooker accordingly) that exercise Power altogether against order (or more then ever they did receive) although the kind of Power which they have may be of God, yet is their exercise thereof against God, and therefore not of God, otherwise then by permission, as all injustice is: and cannot in Conscience (at the end of the same page) bind any man to Obedience. I will not here cite the famous Bilson, I shall have occasion to do it after, nor Bishop Jewel, which two are noted by the late King in his papers to Henderson: But I will return to that learned French man at first named, who besides two other books of Politicks, hath writen one on purpose. De authoritate principum in populum semper inviolabili, and yet does thus determine. Traditur Respublica principi in eum finem ut illi praesit in salutem omnium, a quo si prorsus desciverit, etiam de potestate cadit, quam non alio sine sibi commissam habebat.
I speak this, and produce these Testimonies thus liberally, for the sake of some peaceable Spirits (and it may be over-strict Consciences) who are, or have been haply, look'd upon as refractory persons, in forbearing compliance to certain late Impositions, only because they having read more, could not Swallow some unlimited Words so easily as others did that considered less of them. But then, as for my self, I say first to the question, This is never to be supposed of our King; and next I have spoken before, that Majesty in our State I conceive such, as can make no forfeiture. It is not Potestas sub conditione, and if the Prince might excidere de jure, he cannot excidere de possessione, where there is none to take the forfeit, or call him to account for his doings. Omnes quidem sub eo, & ipse sub nullo (says Bracton) nisi tantum sub Deo. Si ab eo peccatur (so one reads it, not petatur), locus erit supplicationi quòd factum suum corrigat & emendet, quod quidem si non fecerit, satis erit ei ad paenam quod Dominum expectet Ʋltorem: Nemo enim de factis suis praesumat disquirere, multó minus contra factum suum venire. I will add in reference to the Drs, the Divines I have named, leaving the Heathen Orator and Philosopher to their higher sayings. As in Divinity they say of Natural Power which is properly foreign or potentia, that posse malum, non est posse (it is not the Power, which is Strength or Ability, but Impotence) So may we affirm as rightly of Civil Power, which is foreign or Potestas, The Powers that be, are ordained for our good: That Power which is not for our good, (that is the exercise of it, for the Powers themselves are of God and cannot be otherwise) is not Power but Violence; It is not the Power which is jus Imperandi, or which God grants. It is unlawful, injustum and not jus, and so in foro interiori truly unobligatory. But when I say and yeild this, I apprehend here some distinction. It is unlawful, to wit, Morally, as null, and accountable to God: but not Politically, as to be resisted by the people.
Bodin de Republica lib. 2. thus states this whole matter. There is the Usurper of Sovereignty, and the lawful Sovereign, whether by Succession, Election, Conquest, Lot, or especial Vocation. The lawful Sovereign is either Absolute or not. And there is the Stranger, or the Subject. For the Ʋsurper he will have him slain, so that the prescription of a hundred years shall hardly save him. For the Lawful Sovereign, if he tyrannizes over his Subjects and is not absolute, he may be proceeded against by Justice, or Force, as the States of the Empire have done by the Emperour, and so Rome and Venice. If the Sovereign be absolute and perverts the Laws of God and Man, there is the Stranger, who is of Force, as some Neighbour Potentate, and he (he counts) may come Heroically to chastize such a person, by the example of Hercules, Dion, Timolen, Tamerlan, and the like. But for the Subject, where the Sovereign is absolute and a true Monarch, such as (he says) in Spain, France, and England, it is not lawful to attempt any thing against them, their Life and Dignity, be they never so Wicked.
The conclusion comes to our purpose, yet will I put in some exceptions. 1. For the Usurper, This great Lawyer it seems had not learned to distinguish the Power it self which is of God, and his righteous dispose for the deserts and iniquities of men, from mans Ʋsurpation. A Submission to the one under due Circumstances, is no approbation of the other. Probantur arma sumpta in tyrannos in titulo (says Arnisaeus) sed non a subditis, verum ab extraneis, aut injustè oppressis. 2. For the Stranger I make a stand, what has he to do, who hath neither Interest nor Authority, to come and meddle with anothers Kingdom? foreign is forbidden. 3. This volumnious French man had taken up what he says of our Government from discourse only (as he tells himself) with one of our Countreymen, and when he makes England an absolute Monarchy, he does yet lay down his marks or rights of Sovereignty so, as will make it not absolute. For the first and chief is, the making Laws, which he will not have enough, unless it be without consent of others, either greater, equal, or lesser then himself; when we all know, there passes no Laws with us, but they are Enacted by the King, with the consent of both Houses, and Authority of the same. 4. Though he treats of a Government Lordly and Regal, and puts the difference right as to the Subjects, that in the one they have their Natural liberty and propriety, and in the other not: Yet, as it seems to me, does he not touch the chief string; The Royal Monarch, he says, is one that yeilds Obedience to the Laws of God and Nature, as he expects his Subjects should to him: But so may the Despotical Monarch. The String that should be touched (if the Harp of their French Commonwealth were not set too high) is the Law of the Land, Will he have his Monarch to be subject to, or over that? We are not so shy perhaps as he. Omne Imperium sub Deo. Rex sub Deo & sub Lege. Princeps est ubi dominatur Lex, Dominus ubi voluntas. The Courts of Chancery or Law can avoid his Majesties Charters which are passed against Law; for the King is subject to the Law and sworn to maintain it, says Judg Jenkins. In his works. p. 48. And yet though we hold the King is bound to Govern, as we to obey him, according to Law, that hinders him not from being an absolute Prince, because we make not that a condition of his being King, but a necessity of his Kingdom; that is the Manner of our Constitution will hold him to it, but takes no forfeit on him upon de failure.
There is the Constitution it self of any State, and the Laws built upon it. As for the Constitution it self, there is no personal Sovereign whatsoever but he is sub Lege in that respect; The Constitution prescribes to him how he shall Govern. But as for the Laws hereupon for the administration which are nothing else indeed but the Will of the Supreme about the people so Governed, it must be acknowledged that when a Government is Despotical, or the State a pure State, the absolute Monarch in Politicks is over the Laws, because every Man is Lord of his own Will: When in a mixt State, as ours, where the Laws are not the Will of one solely, but All, in the consent of their Representatives, the Monarch here must be sub Lege, as to these Laws also, which is in it self clear. Neither does it follow because a Prince is not absolute with an absoluteness proper to Lordly Rule, or a pure State, which is hurtful both to Prince and People (when he may do what he please with the Laws,) that he is not absolute with an absoluteness proper to a mixt State, which is so equally attempered to the safety of the Prince and people, that he can neither violence them, while he is to Rule by the Laws which themselves have chosen: Nor can he be violenced by them, while his Officers are obnoxious (that they may not dare to act under him but according to Law only) but in himself left unaccountable to any but God for the transgression.
I must not pass over this yet. The case put is about Arbitrariness of Power. We own Absoluteness, not Arbitrariness. This requires our care. Let our forreign Writers plead to us Tyranni & Regis parem esse licentiam, illud solum interesse— To wit, that between a King and a Tyrant there is no difference but in their Title, and end of governing. Tyrannus erit qui negligit & subvertit bonum publicum habitâ tantum ratione sui commodi. Arnisaeus in his Doctrina politica c. 9. foreign, is Tyrannis in Arist. Pol. l. 4. c. 10. We shall grant them, this indeed is one thing, wherein they ordinarily differ, to wit in their ends. The one regardeth the Wealth of his Commons, the other the advancement of himself, his Faction and Kindred, as Sr. Thomas Smith speaks. But the formal reason of Tyranny as it differs from Royalty in a mixed State, I must place herein, that the one does govern by Law, so as therein he is Subject to it (which is Hooker's Doctrine as the Judges before) or under it: the other breaketh Laws already made, at his pleasure, and maketh other without advice and consent of his people, as the named Secretary to two of our Princes (and thereby fitted to suite his definition to our State) does express it; and accordingly does add, One may be a King in his entry of the Government, and a Tyrant in the administration. De Rep. Ang. l. 1. c. 7. Happier that people (are the words of Hooker from Archytas) whose Law is their King in the greatest things, then that, whose King is himself their Law. Out of the same Author he adds, where this order is not, a King groweth to be a Tyrant. Indeed there will be a ground laid by us, both of danger and error if we distinguish not of places. In a Government truly Regal, to become Arbitrary is Tyranny: In a Government that is Lordly, Tyranny it is certain, must be somewhat else. Let it be what Bodin or any of these mentioned will make it. We have this advantage in our Temperature, that when in a Lordly government the people may call any Prince of theirs Tyrant, whensoever they are in effect but disaffected, and have strength, they cannot do so in ours. It is easie surely for them to say their Prince regards only himself, his pleasure and profit, and neglects the common Good, and so expose him to the hate and consequences of that Name. But it will be hard for any ever to affirm of a Prince of ours, that the Habitual, Constant, Predominant, tenour of his Rule and Government here is not according to the Law of the Realm, by, and under regulation of it. In this definition then of Tyranny, I consult the safety of my Prince, Quod adprimè est utile, and ought to be well taken.
I know moreover such Writers who are concerned especially in the French State do speak high, that there is no true absolute Monarch, who is not above his whole people and the Laws also; and they cite Aristotle to this effect. Ʋbi Leges Dominantur negat, Aristoteles verum & absolutum Regem esse. But the learned in the Customs and Laws of our Nation will speak just contrary. Non est Rex ubi dominatur voluntas non Lex. The Sr. Thomas before mentioned and Buddeus (which is but the same book in Latin) do tell us of a double Government a foreign, and foreign, The last he Englishes a Royal Power regulated by Laws, which he mentions I apprehend as a Portraiture de industria of ours. If Aristotle then speaks as he is cited (which I have found not at once looking) I do suppose he means it of the former of these Governments a foreign, and so I will take the words of Austin, Imperatorem non esse subjectum legibus qui habet in po…estate alias leges ferre, cited by Barclay when he is contending that a King cannot be subject to the Laws, meaning so as to be compelled by them. But as for a foreign, where the Leges ferre does not lie in Potestate of one solely (as it does not with us) I must by this Counsellour's leave, take the boldness upon me to distinguish between sub Lege esse, and cogi posse; Legibus astringi, and a populo judicari. As there is a difference between a pure and a mixt State: So is there (as is before intimated) in the absoluteness of the Monarch, according to one, and the other. A mixt (mollis gentle) absoluteness will think it enough to be Soluta (free) from the one, when a pure (rigid) absoluteness will be Soluta from both of them. Let Bodin and Henningus who are French, and the learned Scot mentioned, being a Consilijs to that King, advance their Monarch to a Power so absolute that he may say what our Richard the Second was accused of his Nobles for saying, that the Law was on his head, it shall be the glory of our Nation, that we live not under such a torrid, but more temporate Zone of Absoluteness, while our Monarch is contented to yeild himself to an astringi legibus, and sub lege esse, so long as he is yeilded by us to be Solutus from a Cogi posse, and a populo indicari. Et quod sub Lege esse debeat, cum sit Dei vicarius, enidcnter apparet, ad similitudinem Jesu, qui cum ad reparandum humanum genus in effabiliter ei multa suppeterent, hanc potissimùm elegit viam, quasi ad destruendum opus Diaboli, non virtute uteretur potentiae sed justitiae ratione; & sic Ʋoluit esse sub lege (Here strech not the Simile beyond the Staple (ut eus qui sub lege erant redimerit. Noluit enim uti viribus sed ratione & judicio. Bracton.
If any then will still press me with the French Politicks, and what I have noted in my third exception to Bodin, who holds that no Prince is absolute but he who hath the sole Power of Legislation, and yet that our Prince is an absolute Prince, I will make an end with him at once. An absolute Monarch accipiatur dupliciter. Either we may understand by it, One in whom the Sovereignty is solely and fully, wholly and altogether placed: or One whose Dominion is not held upon Condition. In the first sense there is no Prince in a mixt Government can be an absolute Monarch, for the constitution of a mixt State does place the Supreme Power or rights of Majesty in him with others. The most high and absolute Power of the Realm of England consisteth in the Parliament, says Smith, l. 2. c. 2. But that our Princes of England are absolute in the second sense, to wit, that no Mortal can take Arms against them upon pretence of non-performance of the conditions of their reigning, it is that we stand upon, as what pro virili, tam Mercurio, quam Marte, is to be maintained.
To proceed. But what think we of the great case between the King and Parliament in the late War? Is it not lawful to take Arms in such a case? For the scanning hereof indifferently, The ground of this Case hath been placed I suppose by most of the Sober, in their apprehension of a Co-ordination of Powers, not well understood. They have supposed the Government to be a mixt Government in regard of division of Power; As if the Tres ordines hujus Regni, were tres Potestates, as the several States united in the Netherlands: Or at least as if one part thereof lay in the King, another in the Peers, another in the Commons, and each party were to defend his own. Now when in some forreign States there are petty Powers who depend not on those that are greater, but are distinct, and so have jus gladij (if they dare use it) in case of wrong against the greater: Many have been apt to judg likewise, that the Lords, or Commons, or inferiour Magistrates may do the like here, when they concluded the people, of themselves (bearing not the Sword) might not. Upon such a conception perhaps as this, the Wars were not the first of that Nature which have been in this Nation. But there is an handsomer conception of our Government, as a mixt Government then this.
The three usual sorts of Government being found to degenerate ordinarily from pure into their extrams, a mixt Government hath been invented as better then any one of the other, called a Free-State. A Government is mixt in regard of placing the Supreme Power. There are three Estates in our Land. Suppose these as some would have it, the King, Lords and Commons Let these three then, as thus conceived (though without any stress at all on the word Estates) be look'd on as one person, and the Supreme Power to reside in them joyntly as one. The King is a chief part (says Lawson) and may not any more be divided from his Parliament than from himself. The Supreme Power according to this is but one and indivisible, and the jura Majestatis shews where it lies. Legislation, the Dominium eminens as to the Subjects purse we know lies not in the King alone. Where the last Appeal too lies we know; and if the Militia were layn with its fellows, it would do the King not a jot of hurt in this notion, wherein he and his two Houses make but one, and when they are dissolv'd it rests in him altogether for Execution. Now if the Supreme Power be in these three identified not several, (that is, not in King, Lords, and Commons apart, but in the Corporation together) then cannot they be co-ordinate Powers, and the Parliament consequently can do nothing without him, which resolves the case. A Parliament (says Judg Jenkins, is a Body composed of a King their Head, the Lords and Commons the Members; all three together make one Body, and that is the Parliament, and no other. p. 80. There is such an incorporation as cannot be dissolved without the destruction of both, saith Mr. Pym in his charge. This agrees with our Laws, and the Law of the Land. p. 168. Again. The two Houses can make no Court without the King. Before the Norman Conquest and since to this day the King is Principium, Caput, & Finis Parliamenti. It appears by the treatise de modo tenendi Parliamenta in the Confessors days; By the Writ of Summons, whereby the Treaty or Parler in Parliament is to be had with the King only; By the Oath of Supremacy taken at every Parliament, It doeth appear manifestly that without the King there can be no colour of a Parliament. p. 148. It is objected by Mr. Prin, The Parliament can enlarge the Kings Prerogative, and therefore it is above him. The Judg answers, If the King assent, otherwise not. p. 48, This I apprehend short. Yea, it must not be the Power of the Parliament quâ Parliament, that is, of King and both Houses together, either to shorten or enlarge Sovereignty, because the rights of the personal Sovereign, or Qualification of the Power, does derive from the Constitution of a Nation, which is the only standing, grand, original Act of the Community: And the Constitution must be above the Parliament, being that, by Vertue whereof, we must suppose them to act, and to be. Indeed the King in Parliament is in some sense above himself, and above the Laws made by them, but not above the Constitution, which is the predominant Law (a thing at least that is still to be supposed as though it were extant) and must controul all. Upon this account, or bottom, is there a Solidity in the Lawyers advancing ancient Ʋsage to that pitch they do, when otherwise, Dies diem docet, and latter reasons, have the more years. The Opponent and Defendant therefore, both of them in earnest, are out here in their Law, if they think a Parliament though with consent of the King can do so. By this answer, or by nothing, is Majesty rendred fixt, permanent, and indeed inviolable; beyond the reach of yesterday, and not obnoxious to any Mortal or Mortals, but to the Will and Power of God only.
You may say A Parliament with the King may do any thing, they can do this therefore, and if they please set up a new Government. I answer, I deny it. You, may persist, The whole people may set up what Government they please, and consequently cast off any. But the Parliament are Representatives of the whole People: I reply, the people may be considered as a Community, or as a Commonwealth. The People in the capacity of a Community may indeed at first agree upon what form of Government they will, but in the capacity of a Commonwealth they can do no such matter. The reason is, because as a Community they are supposed to be in a State of liberty: but when they are brought under an order of Superiority and Inferiority, that is to be a Commonwealth, they are supposed to have contracted one with another, and must stand to their agreement. The Parliament now are Representatives of the people as a Commonwealth, not as a Community. The people are here Pars subdita, and cannot meddle with Government: Their Representarives (who with the King are Pars imperans) are chosen for Commonwealth purposes, and when they can make Laws, for the Administration, they can make none (as Waters can never arise higher then the Spring from whence they come) but in subordination to the Constitution. If the whole Nation therefore with the King would change the Government. He with his two Houses must give up the Supreme Authority, and when they have declared a Dissolution of the State, the people are turned into a Community, and may come to a new Agreement. The King then and the Forty Counties, indeed might do this, but not the King and Parliament.
Thus much from that Judg occasionally, to this purpose, though not on this account. But if our Government be a mixt Government (which is the thing we are upon) not really in the Constitution, but nominally, in regard of some Acts of Administration, it is another matter. I know there may be a dispute held about the three Estates in Parliament, whether the King is to be reckoned as one of those Estates or no? That he is, there is a Royal precedent, and the transactions of the late times, as is known, in the late Kings answer to the Parliaments 19 Propositions. There is perhaps to the reason of the thing it self; The three Estates assembled in Parliament may possibly be nothing else but the three States of Government there assembled, or comprized in that assembly. The three States of Government are Monarchy, Aristocracy, Democracy: How shall the first of these three be represented but in his Majesty? And how shall our Government be mixt of the three, if he be not one of them? The Laws of this Kingdom are made by a King, a House of Peers, and a House of Commons. These three Estates makeing one incorporate Body are they in whom the Sovereignty and Supreme Power is placed, says the King, in those papers mentioned. Besides, who hath the hardiness to say, if the Spiritual Lords were absent from the House, there could no Act of Parliament pass, or that when they were removed of late from thence by an Act, the three Estates were then dissolv'd, and our Constitution Parliamentary at an end? Nevertheless Dr. Heylin I remember, in his Quodlibetical paper does prove out of the words of a Statute in one of the Richards, and another of Queen Elizabeth, and out of my Lord Coke, unto whom Judg Jenkins refers, that the three Estates of the Realm are the Lords Spiritual, Temporal, and Commons. Let me turn to my Lord Coke my self. The high Court of Parliament consisteth of the Kings Majesty, and the three Estates— These three Estates, and the King, are the great Corporation or Body politick of the Nation, and do sit in two Houses—But in ancient times both Houses together. Part 4. c. 1. Sr. Thomas Smith after he hath distinguished the King (as it seemeth) from the people, he hath these words: The people (says he) I call those that the word Populus doth signifie (viz.) the whole Body and three Estates of the Commonwealth, B. 1. c. 7 Again, The Barons for the higher, the Knights, Esquires, Gentlemen and Commons for the lower part of the Commonwealth, the Bishops for the Clergy be present to shew what is good B. 2. c. 2. I have passages by me out of Rawleigh's prerogatives of Parliament, and others (I think) asserting this, which are needless to transcribe, seeing there are two passages express in the Thanksgiving for the fift of November inserted for the nonce in our Book of Common Prayer. However this be, If the Community of England when they set up this mixt form of Government we have (let it be mixt in what regard it will) were indeed so Wise and Reserved as to agree that no Laws shall pass, Money be raised, or War undertaken, without their consent given by their Representatives, called first to advise about the same, I admire they should leave the King at perfect liberty as to his negative Voice, and dissolving their Representative at his pleasure. The consideration of the last of these alone makes me suspect that these jura Majestatis supposedly reserved by them, owe their derivation to the grants of Princes, gotten from them by Contests, rather then to that original agreement. And if Parliaments as they are called by the Writ of the King do sit and Act by that Authority alone which having called can dissolve them at Will, and by no higher (preserved for them by the Constitution) from the Community, then cannot the Parliament take Arms against the King, any more then the Subjects, as hath been spoken. Parliamentum est solemne colloquium omnium ordinum Regni authoritate Regis, ad consulendum sttatuendum{que} de negotijs Regni indictum, says Spelman. Neither may any argue here as against me, If the Parliament hath its Power from the King, then the Purse and Legislation also is in his Power. He hath himself all that he can give. The argument is from that Topick, Causa causae est causa causati, which must be understood de causis necessarijs, not de contingentibus: The King indeed may call a Parliament at his Will, but he cannot command their consent when he hath called them. Nevertheless I determine not but this Power which lies in the Parliament joyntly with the King, does flow to them immediately from the Constitution of the Land when called, rather then from that writ that called them to consult upon such an end. To go on then where I was last. The Powers that are, are only the Supreme or Subordinate. If the Supreme Power be in the Parliament, it must be in them as one with the King, and as one with him, they cannot take Arms against him: If their Power be Subordinate, they cannot rise up against the causc of their being, out of question. The summ of all is: I suppose the summum imperium of England, is Regale, not Despoticum; but Regale absolutum, not pactionatum. Absolutum, that is, solutum legibus. Not so, but the King is to govern according to the Laws (while I say it is Regale,) but he is not Judged by them.