CAP. I. Of Politicall Government, and its Distinction into severall Kinds.

GOvernment and Subjection are Relatives,Sect. 1 so that what is said of the One, may in proportion be said of the other: Which being so, it will be needlesse to treat of both: because it will be easie to apply what is spoken of one to the other. Go­vernment is Potestatis Exercitium, the ex­ercise of a Morall Power. One of these is the Root and Measure of the other; which if it exceed, is ex­orbitant, is not Government, but a Transgression of it. This Power and Government is differenced with respect to the Governed, to wit, a Family, which is called Oeconomicall: or a publike society, which is called Politicall, or Magistracie. Concerning this Magistracie we will treat 1. in generall. [Page 2] 2. Of the principall kind of it.

In generall concerning Magistracie, There are two things about which I find difficultie and difference, viz. the Origi­nall, and the End.

Authority, how farre from God, how farre from Men.First for the Originall: There seem to be two extremes in Opinion; while some amplifie the Divinitie therof: Others speak so slightly of it, as if there were little els but Humane Institution in it. I will briefly lay down my apprehensions of the evident truth in this point: and it may be, things being clearly and disctinctly set down, there will be no reall ground for contrariety in this matter. Three things herein must necessarily be distinguished, viz. 1. The Consti­tution of Power of Magistracie in generall. 2. The Limita­tion of it to this or that kind. 3. The Determination of it to this or that Individuall Person or Line.

For the first of these, 1. It is Gods expresse Ordinance that in the societies of Mankind, there should be a Magistracie or Government. At first when there were but two, God ordeyned it, Gen. 3.16. S^t. Paul affirmes as much of the Pow­ers that be, none excepted, Rom. 13 1. 2 This Power where ever placed ought to be respected as a participation of divine Soveraignty, Psal, 82.1.6. and every soule ought to be subject to it for the Lords sake 1 Pet. 2.13. that is, for conscience sake of Gods Ordinance, Rom. 13.5. and under penaltie of Dam­nation, v. 2. These are Truths against which there is no co­lour of opposition. Indeed this Power may be claymed by them who have it not; and where there is a limitation of this Power, subjection may be claymed in cases which are without those limits: But to this Ordinance of Power where it is, and when it requires subjection, it must be given; as before.

For the second. 1. In some particular communities the Limitation of it to this or that kind, is an immediate Ordi­nance of God: so Kingly Power was appointed to the Jewes on their desire, 1 Sam. 8.9. whether they had not a kind of Monarchicall Government before, I will not stand on it: but it is evident that then, on their earnest desire God him­selfe condescended to an establishment of Regalitie in that [Page 3] state. 2. But for a generall binding Ordinance, God hath given no word, either to command or commend one kind above another: Men may according to their Relations to the forme they live under, to their affections and judgements in divers respects, preferre this or that form above the rest; but we have no divine limitation: and it were an absurditie to think so; for then we should uncharitably condemne all the Communities which have not that form for violation of Gods Ordinance and pronounce those other Powers unlaw­full. 3. This then must have another and lower fountain to flow from, which can be no other then Humane. The higher Power is Gods Ordinance: That it resideth in One, or more; in such or such a way is from humane designment: for when God leaves a matter indifferent, the restriction of this indifferencie is left to secondary causes. And I conceive this is S^t. Peters meaning, when he calls Magistracie [...], Humane Creature; S. Paul calls it Gods Ordinance, be­cause the Power is Gods: S. Peter calls it humane Ordinance, because the specification of it to this or that form, is from the societies of Mankind. I confesse it may be called a hu­mane Creature, in regard of its subject, which is a Man, or Men: or its End which is to rule over Men for the good of Men, but the other seems more naturall and it induces no disparagement to Authority, being so understood. But how ever you take that place, yet the thing affirmed stands good, that God by no word binds any people to this or that form, till they by their own Act bind themselves.

For the third: the same is to be said of it, as of the second: some particular men we find whom God was pleased by his own immediate choise to invest with this his Ordinance of Authority: Moses, Saul, David, yea God by his immediate Ordinance determined the Government of that people to Davids posteritie and made it successive; so that that People after his appointment and word was made known to them, and the room voyd by Sauls death, was as immediately bound by divine Law to have David, and his Sonnes after him to be Magistrates, as to Magistracie it selfe. But God hath not done so for every people: ascriptum est cannot be alledged for [Page 4] the endowing this or that person or stock with Soveraignty over a community: They alone had the priviledge of an ex­traordinary Word. All others have the ordinary and medi­ate hand of God to enthrone them: They attaine this deter­mination of Authority to their Persons by the tacite and virtuall, or else expresse and formall consent of that Society of men they governe, either in their owne persons, or the root of their succession, as I doubt not, in the sequele it will be made appeare. But let no man thinke that it is any lesse­ning or weakning of Gods Ordinance in them, to teach that it is annexed to their Persons by a humane Meane: for though it be not so full a title to come to it by them simple Providence of God, as by the expresse Precept of God: yet when by the disposing hand of Gods Providence a Right is conveyed to a person or family, by the meanes of a publique Fundamentall Oath, Contract and Agreement of a State, it is equivalent then to a Divine Word; and within the bounds of that publique Agreement the conveyed Power is as Obli­gatory, as if an immediate word had designed it. Thus it ap­pears that they which say there is divinum quiddam in Sover­aignes, and that they have their power from God, speake in some sence truth; As also they which say that originally Power is in the People, may in a sound sence be understood. And in these things we have Dr. Ferns consent in his late dis­course upon this subject. Sect. 3.

Sect. 2 For the end of Magistracie; to set out that is no hard matter,Whether the end of Government be the peoples good? if we consider what was looked at when God ordey­ned it. That was the Good of the society of men over which it is set: So Saint Paul, Rom. 13.4. [...]. God aymed at it in the Institution of Government: and so do all men in the choice of it, where they may be choosers: such a Government, and such persons to sway it, as may most con­duce to publique Weale. Also it is the measure of all the Acts of the Governour: and he is good or bad according as he uses his Power to the good of the State wherewith he is intrusted. That is the end: but not the sole end; The preservation of the Power and Honour of the Governour [Page 5] is an end too: but I thinke not co-ordinate, but subordinate to the other: because doubtles in the Constitution of Govern­ment, that is first thought on, and this in congruity to that; Also the reason why the Power and Honour of the Magi­strate must be preserved, is for the publique societies sake be­cause its welfare depends thereon: And if it fall out that one of them must suffer: every good Magistrate will descend something from his greatnes be it for the good of the Com­munity: On the other side, though every subject ought for the honour and good of the Magistrate to give up his private; yet none ought to advance the greatnes of his Soveraign with the publique detriment. Whence in my apprehension the end of Magistracie is the good of the whole Body, Head, and Members conjunctly: but if we speak divisim, then the good of the Society is the Ultime end: and next to that, as con­ducent to that, the Governours Greatnes and Prerogative. And herein also accordeth Dr. Fern with us. Sect. 3. Where he sayes, That the people are the end of the governing Pow­er. There is another question of mainer concernment, here in our generall discourse of Authority fitly to be handled. viz. How farre subjection is due to it? but because it hath a great dependance on the kinds and States of Power, and can­not be so well conceived without the Precognition there­of: I will referre it to after opportunities.

For the division of this Power of Magistracie. It cannot Sect. 3 be well divided into several species;Division of Ma­gistracie. for it is one simple thing an indivisible bcame of Divine Perfection; yet for our more distinct conceaving thereof. Men have framed severall di­stinctions of it. So with respect of its measure, it is absolute or limited: In respect of its manner. It is as St. Peter divides it, Supreame, or Subordinate. In respect of its Meane of ac­quiring it is Elective, or successive; for I conceive that of Conquest, and Prescription of usuage are reducible to one of these, as will appeare afterwards. In respect of its degrees it is Nomotheticall or Architectonicall and Gubernative or Exe­cutive. And in respect of the subject of its residence there is an ancient and usuall distinction of it into Monarchicall, Ari­stocraticall [Page 6] and Democraticall. These either simple or mixt of two, or all three together, of which the Predominant gives the denomination. These are not accurate specificative, Divi­sions of Power, for it admits none such, but partitions of it according to divers respects. The course of my intention di­rects me to speak only of Monarchicall Power, which is the chiefe and most usuall forme of Government in the world; The other two being apt to resolve into this, but this not so apt to dissolve into them.

CHAP. II. Of the Division of Monarchy into absolute and limited.

Sect. 1 NOW we must know that most of those distinctions which were applyed to Power in generall are applia­ble to Monarchy: because the respects on which they arise are to be found in it. But I will insist on the three main divisions: for the handling of them will bring us to a cleare understanding of what is needfull to be known about Monar­chicall Power.

First, of the distinction of Monarchy into Absolute and Limited. Absolute Monarchy is when the Soveraignty is so fully in one, that it hath no Limits or Bounds under God, but his owne Will. It is when a people are absolutely resig­ned up or resigne up themselves to be governed by the will of one man. Such were the ancient Easterne Monarchies, and that of the Persian and Turke at this day, as farre as we know. This is a lawfull Government and therefore where men put themselves into this utmost degree of subjection by Oath and Contract,Whether abso­lute Monarchy be a lawfull go­vernment. or are borne and brought unto it by Gods Provi­dence, it binds them and they must abide it▪ because an Oath to a lawfull thing is Obligatory. This in Scripture is very evi­dent as Ezek. 17 16.18.19. Where Iudgement is denoun­ced against the King of Iudah for breaking the Oath made to [Page 7] the King of Babylon; and it is called Gods Oath, yet doubtles this was an Oath of absolute subjection. And Rom. 13. the power which then was, was absolute; yet the Apostle not excluding it; calls it Gods ordinance, and commands subjecti­on to it: so Christ commands tribute to be paid, and payes it himselfe; yet it was an arbitrary taxe, the production of an absolute power. Also the soveraignty of masters over ser­vants was absolute, and the same in Oeconomy as absolute Monarchy is in policie, yet the Apostle enjoynes not ma­sters called to Christianity to renounce that title as too great and rigid to be kept but exhorts them to moderation in the exercise of it; and servants to remaine contented in the con­dition of their servitude. More might be said to legitimate this kinde of governement, but it needs not in so plaine a case.

This absolute Monarchy hath three degrees, yet all with­in Sect. 2 the state of absolutenesse. The first, when the Monarch,Three degrees of absolutenesse. whose will is the peoples Law, doth set himselfe no stated Rule or Law to rule by, but by immediate Edicts and com­mands of his owne will governes them, as in his owne and Councels judgement he thinks fit. Secondly, when he sets downe a Rule and Law by which he will ordinarily govern, reserving to himselfe liberty to vary from it, wherein, and as oft as in his discretion he judges fit: and in this the Sove­raigne is as free as the former, onely the people are at a more certainty what he expects from them in ordinary. Thirdly, when he not onely sets downe an expresse Rule and Law to governe by, but also promiseth and engages himself in many cases not to alter that rule: but this engagement is an after condescent and act of grace, not dissolving the absolute oath of subiection, which went before it, nor is intended to be the rule of his power, but of the exercise of it. This Ruler is not so absolute as the former in the use of his power, for he hath put a bond on that, which he cannot breake without breach of promise; that is, without sin: but he is as absolute in his power, if he will sinfully put it forth into act, it hath no politick bounds, for the people still owe him absolute [Page 8] subiection, that not being dissolved or lessened by an act of grace comming afterwards.

Sect. 3 Now in governments of this nature, How far obedience is due,Whether resi­stance be law­full in absolute Monarchy. and, Whether any resistance be lawfull, is a question which here must be decided. For the due effecting whereof, we must premise some needfull distinctions to avoid confu­sion. Obedience is twofold; first, Positive and active, when in conscience of an authority we doe the thing commanded: secondly, Negative and passive, when though we answer not Authority by doing, yet we doe it by contented undergoing the penalty imposed. Proportionably resistance is twofold: first, Positive, by an opposing of force: secondly, Negative, when onely so much is done as may defend our selves from force, without returne of force against the Assailant. Now this negative resistance is also twofold: first, In inferiour and sufferable cases: secondly, or in the supreme case and last ne­cessity of life and death: and then too it is first, either of par­ticular person or persons; secondly, or of the whole com­munity. And if of particular persons, then either under plea and pretence of equity assaulted; or else without any plea at all, meerly for will and pleasure sake: for to that degree of rage and cruelty sometimes the heart of man is given over. All these are very distinguishable cases, and will be of use either in this or the ensuing disputes.

Assert. 1 To the question I say, First, Positive obedience is abso­lutely due to the will and pleasure of an absolute Monarch, in all lawfull and indifferent things: because in such a State the will of the Prince is the supreme Law, so that it binds to obedience in every thing not prohibited by a superiour, that is, Divine Law: for it is in such case the higher power, and is Gods ordinance.

Assert. 2 Secondly, When the will of an absolute Monarch com­mands a thing forbidden to be done by Gods Law then it bindes not to active obedience; then is the Apostles rule un­doubtedly true, It is better to obey God then men: For the Law of the inferiour gives place to the superiour. In things defi­ned by God, it should be all one with us for the Magistrate [Page 9] to command us to transgresse that, as to command us an im­possibility; and impossibilities fall under no Law. But on this ground no man must quarrell with Authoritie, or reject its commands as unlawfull, unlesse there be an open unlawful­nesse in the face of the act commanded. For if the unlaw­fulnesse be hidden in the ground or reason of the action, in­feriours must not be curious to enquire into the grounds or reasons of the commands of superiours; for such licence of enquiry would often frustrate great undertakings, which much depend on speed and secrecy of execution. I speak all this of absolute government, where the will and reason of the Monarch is made the higher power, and its expression the supreme Law of a State.

Thirdly, suppose an absolute Monarch should so degene­rate Assert. 3 into Monstrous unnaturall Tyranny, as apparently to seeke the destruction of the whole community, subject to him in the lowest degree of vassallage, then such a commu­nity may negatively resist such subversion: yea, and if con­strained to it by the last necessity, positively resist and defend themselves by force against any instruments whatsoever, im­ployed for the effecting thereof. 1. David did so in his parti­cular case, when pursued by Saul: he made negative resistence by flight, and doubtlesse he intended positive resistence a­gainst any instrument, if the negative would not have served the turne: else why did he so strengthen himselfe by Forces? sure not to make positive resistance, and lay violent hands upon the Person of the Lords Anointed, as it appeared; yet for some reason he did it doubtlesse, which could be none o­ther, but by that force of Armes to defend himselfe against the violence of any mis-imployed inferiour hands. If then he might doe it for his particular safety, much rather may it be done for the publike. 2. Such an act is without the com­passe of any the most absolute Potentate; and therefore to resist in it, can be to resist no power, nor the violation of any due of subjection. For, first, the most submisse subjection ever intended by any community, when they put themselves under anothers power, was the command of a reasonable will and power; but to will and command the destruction of [Page 10] the whole body over which a power is placed, were an act of will most unreasonable and self-destructive, and so not the act of such a will, to which subjection was intended by any reasonable creatures. Secondly the publike good and being is armed at in the utmost bond of subjection; for in the con­stitution of such unlimited soveraignty, though every parti­cular mans good and being is subjected to the will of One su­preme yet certainly the conservation of the whole Publike was intended by it; which being invaded; the intent of the constitution is overthrowne and an act is done which can be supposed to be within the compasse of no politicall power: So that did Nero as it was reported of him in his im­manity thirst for the destruction of whole Rome; and if he were truly what the Senate pronounced him to be, Humani generis hostis, then it might justifie a negative resistance of his person; and a positive, of any Agent should be set on so in­humane a service. And the united Provinces are allowed in resisting Philip 2^d. though he had bin their absolute Monarch, if he resolved the extirpation of the whole people, and the planting the countrey with Spaniards, as it is reported he did. And that assertion of some, that All resistance is against the Apostles prohibition. Resistance by power of Armes is ut­terly unlawfull, cannot be justified in such a latitude. But of this more will be spoken in the current of this discourse.

Assert. 4 Fourthly, suppose by such a power any particular person or persons life be invaded, without any plea of reason or cause for it, I suppose it hard to deny him liberty of negative resi­stance of power; yea, and positive, of any Agents, in such as­sault of murther: for though the case be not so cleare as the former yet it seemes to me justified by the fact of David, and the rescuing of Jonathan from the causlesse cruell intent of his Fathers putting him to death. As also such an act of will carrying no colour of reason with it, cannot be esteem­ed the act of a rationall will, and so no will intended to be the Law of Soveraignty. Not that I thinke a Monarch of such absolutenesse is bound to yeeld a reason why he com­mands any man to be put to death, before his command be obeyed; but I conceive the person so commanded to [Page 11] death may bee justified before God and men for prote­cting himselfe by escape, or otherwise, unlesse some reason or cause bee made knowne to him of such com­mand.

Fifthly, Persons subject to an unlimited dominion must Assert. 5 without resistance subject their Estates, Liberties, Persons, to the will and pleasure of their Lord, so it carry any plea or shew of reason and equity. First, it seemes to me evident, 1 Pet. 2.18, 19 20. if well doing be mistaken by the reason and judgement of the power for ill doing, and we be puni­shed for it, yet the Magistrate going according to his mis­guided reason it is the command of a reasonable will, and so to be submitted to; because such a one suffers by Law, in a State where the Lords will is the Law. Secondly, In com­mands of the power where is the plea of reason and equity on the part of the commander, whether it be such indeed, some power must judge, but the constitution of absolute Monarchy resolves all judgement into the will of the Mo­narch, as the supreme Law: so that if his will judicially cen­sure it just it must be yeelded to as if it were just without repeale or redressement by any created power. And let none complaine of this as a hard condition, when they or their Ancestors have subjected themselves to such a power by oath, or politicall contract: If it be Gods ordinance to such, it must be subjected to and its exorbitances born, as he sayes in Tac [...]tu [...], as men beare famine, pestilence, and other effects of Gods displeasure.

Sixthly in absolute Monarchy the person of the Monarch Assert. 6 is above the reach of just force and positive resistance: for such a full resignation of mens selves to his will and power, by the irrevocable oath and bond of politicall contract, doth make the person as sacred as the Unction of Saul or Da­vid. In such a State all lawful power is below him, so that he is uncapable of any penall hand which must be from a supe­riour, or it is uniust. I have bin the longer on this absolute Monarchy, because though it doth not concerne us, yet it will give light to the stating of doubts in governments of a more restrained nature: for what is true here in the full ex­tent [Page 12] of power, is there also as true within the compasse of their power.

Sect. 4 In moderate or limited Monarchy it is an enquiry of some weight to know,What makes a Monarchy li­mited? What it is which constitutes it in the state of a li­mited Monarchy.

First, A Monarchy may be stinted in the exercise of its Assert. 1 power, and yet be an absolute Monarchy, as appeared before in our distinction of absolute Monarchy: If that bounds be a subsequent act, and proceeding from free will and grace in the Monarch; for it is not the exercise, but the nature and measure of power, wherewith he is radically invested, which denominates him a free, or conditionate Monarch.

Assert. 2 Secondly, I take it, that a limited Monarch must have his bounds of power ab externo, not from the free determination of his owne will. And now Kings have not divine words and binding Lawes to constitute them in their Soveraignty, but derive it from ordinary providence, the sole meane hereof is the consent and fundamentall contract of a Na­tion of men, which consent puts them in their power, which can be no more nor other then is conveyed to them by such contract of subiection, This is the root of all soveraignty individuated and existent in this or that person or family; till this come and lift him up he is a private man, not diffe­ring in state from the rest of his brethren; but then he be­comes another man, his person is sacred by that soveraignty conveyed to it, which is Gods ordinance and image. The truth hereof will be more fully discovered, when we come to speake of Elective and Successive Monarchy.

Assert. 3 Thirdly He is then a limited Monarch, who hath a Law beside his owne will for the measure of his power. First, the supreme power of the State must be in him, so that his power must not be limited by any power above his; for then hee were not a Monarch, but a subordinate magistrate. Second­ly, this supreme power must be restrained by some Law, ac­cording to which this power was given, and by direction of which this power must act; else he were not a limited Mo­narch, that is, a liege Soveraigne, or legall King. Now a So­veraignty [Page 13] comes thus to be legall, or defined to a rule of Law, either by originall constitution, or by after-condescent. By originall constitution, when the society publike conferres on one man a power by limited contract, resigning them­selves to his government by such a Law, reserving to them­selves such immunities: In this case, they which at first had power over themselves, had power to set their owne termes of subiection; and hee which hath no title of power over them but by their act, can de jure have no greater then what is put over to him by that act By after-condescent, viz. when a Lord, who by conquest, or other right, hath an abso­lute arbitrary power; but not liking to hold by such a right, doth either formally or virtually desert it, and take a new legall right as judging it more safe for him to hold by, and desirable of the people to be governed by. This is equivalent to that by originall constitution; yea, is all one with it: for this is in that respect a secondary originall constitution. But if it be objected, that this being a voluntary condescent is an act of grace, and so doth not derogate from his former abso­lutenesse as was said before of an absolute Monarch, who confines himselfe to governe by one rule; I answer. This differs essentially from that: for there, a free Lord, of grace yeelds to rule by such a Law, reserving the fulnesse of pow­er, and still requiring of the people a bond and oath of ut­most indefinite subjection; so that it amounts not to a limi­tation of radicall power: whereas here is a change of title, and a resolution to be subiected to, in no other way, then ac­cording to such a frame of government; and accordingly no other bond or oath of allegeance is required, or taken, then according to such a Law: this amounts to a limitation of ra­dicall power. And therefore they speak too generally, who affirme of all acts of grace proceeding from Princes to peo­ple, as if they did not limit absolutenesse: 'Tis true of acts of grace of that first kinde; but yet you see, an act of grace may be such a one, as may amount to a resignation of that abso­lutenesse into a more milde and moderate power unlesse we should hold it out of the power of an absolute Lord to be o­ther; or that by free condescent, and act of grace, a man can­not [Page 14] as well part with, or exchange his right and title to a thing, as define himselfe in the use and exercise; which I thinke none will affirme.

Sect. 5 In all Governments of this allay and legall Constitu­tion there are three Questions of speciall moment to be considered.

How farre sub­iect o [...] is due in a limited Mo­narchy?First, How farre subjection is due? As farre as they are Gods Ordinance, as farre as they are a power and they are a power as farre as the Contract fundamentall from which un­der God their authority is derived doth extend. As absolute Lords must be obeyed as farre as their Will enjoynes, because their Will is the measure of their Power, and their subjects Law: so these in the utmost extent of the Law of the Land, which is the measure of their power, and their subjects duty of obedience. I say so farre, but I doe not say no further: for I believe, though on our former grounds it clearely fol­lowes that such Authority transcends its bounds if it com­mand beyond the Law: and the Subject legally is not bound to subjection in such case, yet in Conscience a Subject is bound to yeeld to the Magistrate, even when he cannot de jure, challenge obedience, to prevent scandall or any occasi­on of slighting the power which may sometimes grow, even upon a just refusall: I say, for these causes a subject ought not to use his liberty, but morem gerere, if it be in a thing in which he can possibly without subversion, and in which his act may not be made a leading case, and so bring on a pre­scription against publique Liberty.

Sect. 6 How farre it is Lawfull to re­sistSecondly, how farre it is lawfull to resist the exorbitant Illegal Commands of such a Monarch? 1. As before in light­er cases, in which it may be done, for the reasons alledged, Pos. 1 and for the sake of publique peace, we ought to submit, and make no resistance at all, but de jure recedere.

Pos. 2 2. In cases of higher nature. Passive resistance, viz. By ap­peale to Law, by Concealment, by Flight, is lawfull to be made, because such a Command is politically powerles, it proceeds not from Gods Ordinance in him: and so we sin [Page 15] not against Gods Ordinance in such Non-submission, or Negative resistance.

3. For Instruments or Agents in such commands, if the Pos. 3 streight be such, and a man be surprized, that no place is left for an appeale nor evasion by Negative resistance; I conceive, against such. Positive resistence may be made: because au­thority failing or this Act in the Supreame Power, the A­gent or Instrument can have none derived to him; and so is but in the nature of a private person, and his Act, as an offer of private violence, and so comes under the same rules for opposition.

4. For the person of the Soveraigne, I conceive it, aswell Pos. 4 above any Positive Resistence, as the Person of an absolute Monarch; Yea, though by the whole Community, (except there be an expresse reservation of Power in the body of the State, or any deputed Persons or Court, to use in case of in­tolerable exorbitance. Positive Resistence, which, if there be, then such a Governour is no Monarch, for that Funda­mentall Reservation destroyes it's being a Monarchy in as­much as the Supreame Power is not in one.) For where e­ver there is a Soveraigne Politique Power constituted, the person or persons who are invested with it are Sacred, and out of the reach of Positive Resistance or Violence: which, as I said, if just, must be from no inferior or subordinate hand. But it will be objected, that sith every Monarch hath his power from the consent of the whole body, that consent of the whole Body hath a Power above the Power of the Monarch, and so the resistance which is done by it, is not by an inferior power and to this purpose is brought that Ax­iome. Quicquia efficit tale est magis tale. I answer, That rule even in naturall causes is lyable to abundance of restrictions: And in the particular in hand it holds not. Where the cause doth bereave himselfe of that perfection by which it works, in the very act of causing, and convey it to that effect, It doth not remain more such then the effect, but much lesse, and below it, as if I convey an estate of Land to another, it doth not hold that after such conveyance I have a better E­state remayning in me then that other, but rather the con­trary; [Page 16] because what was in one is passed to the other: The Servant who at the year of Iubile would not go out free, but have his eare boared, and given his Master a full Lordship o­ver him: can we argue, that he had afterward more power over himselfe then his Master, because he gave his Master that power over him, by that act of Oeconomicall Con­tract. Thus the Community whose consent establishes a Power over them cannot be said universally to have an emi­nencie of Power above that which they constitute; some­times they have, sometimes they have not: and to judge when they have, when not respect must be had to the Origi­ginall Contract and Fundamentall Constitution of that State, if they have constituted a Monarchy, that is, invested one man with the Soveraignty of Power, and subjected all the rest to him; Then it were unreasonable to say, they yet have it in themselves; Or have a power of recalling that Su­premacie which by Oath and Contract they themselves transferred on another: Unles we make this Oath and Con­tract lesse binding then private ones, dissoluble at pleasure, and so all Monarchs Tenants at will from their people. But if they in such Constitution reserve a power in the bo­dy to oppose and displace the Magistrate for exorbitancies, and reserve to themselves a Tribunall to trie him in, that man is not a Monarch but the Officer and Substitute of him or them to whom such Power over him is reserved or conferred. The Issue is this, If he be a Monarch he hath the Apex or Culmen Potestatis, and all his Subjects divisim and conjunction, are below him: They have devested themselves of all superiority and no Power left for a Positive Opposi­tion of the Person of him whom they have invested.

Sect. 7 Thirdly, Who shall be the Iudge of the Excesses of the Soveraigne Lord in Monarchies of this composure?Who shall be the Iudge of the excesses of the Monarch? I an­swer, A frame of Government cannot be imagined of that perfection but that some inconveniencies there will be pos­sible for which there can be provided no remedie: Many miseries to which a people under an absolute Monarchie are lyable are prevented by this Legall Allay and definement of [Page 17] Power. But this is exposed to one defect from which that is free, that is an impossibility of constituting a Judge to deter­mine this last controversie, viz. the Soveraignes transgres­sing his fundamentall limits. This Judge must be either some Forraigner, and then [...]e lose the freedome of the State, by subjecting it to an externall power in the greatest case: or else within the body: If so then 1. either the Monarch himselfe, and then you destroy the frame of the State, and make it ab­solute; for to define a Power to a Law, and then to make him Judge of his Deviations from that Law, is to absolve him from all Law. Or else 2. the Community and their Deputies must have this power: and then, as before, you put the apex Potestatis, the prime [...] in the whole body, or a part of it, and destroy the being of Monarchy: The Ruler not be­ing Gods immediate Minister but of that Power, be it where it will to which he is accomptable for his actions. So that I conceive in a limited legall Monarchy, there can be no sta­ted internall Judge of the Monarchs actions, if there grow a fundamentall Variance betwixt him and the Community. But you will say, It is all one way to absolutenesse to assigne him no Judge as to make him his own Judge. Answ. I say not simplie in this case there is no Judge: But that there can be no Judg legall and constituted within that frame of Govern­ment: but it is a transcendent case beyond the provision of that Government, and must have an extraordinary Judge, and way of devision.

In this great and difficult case, I will deliver my appre­hensions freely and clearly, submitting them to the censure of better Iudgements. Suppose the controversie to happen in a Government fundamentally legall, and the people no further subjected then to Government by such a Law.

1. If the act in which the exorbitance and transgression Pos. 1 is supposed to be, be of lesser moment, and not striking at the very being of that Government, it ought to be borne by publique patience, rather then to endanger the being of the State by a contention betwixt the head and body Politique.

2. If it be mortall and such as suffered, dissolves the frame Pos. 2 and life of the Government and publique liberty. Then the [Page 18] illegality and destructive nature is to be set open and redres­ment sought by Petition; which if failing, Prevention by resistance ought to be. But first that it is such must be made apparent; and if it be apparent, and an Appeale made ad con­scientiam generis humani, especially of those of that Commu­nity, then the fundamentall Lawes of that Monarchy must iudge and pronounce the sentence in every mans conscience; and every man (as farre as concernes him) must follow the evidence of Truth in his owne soule, to oppose, or not op­pose, according as he can in conscience acquit or condemne the act of carriage of the Governour. For I conceive in a Case which transcends the frame and provision of the Go­vernment they are bound to. People are unbound, and in state as if they had no Government; and the superiour Law of Reason and Conscience must be Judge: wherein every one must proceed with the utmost advice and impartiality: For if hee erre in iudgement hee either resists Gods Ordi­nance, or puts his hand to the subversion of the State and Policy he lives in.

And this power of judging argues not a superiority in those who Judge, over him who is Judged for it is not Authoritative and Civill, but morall, residing in reasona­ble Creatures and lawfull for them to execute, because never devested and put off by any act in the constitution of a legall Government, but rather the reservation of it intended: For when they define the Superiour to a Law, and consti­tute no Power to Judge of his Excesses from that Law, it is evident they reserve to themselves, not a Formall Au­thoritative Power, but a morall Power, such as they had originally before the Constitution of the Government; which must needs remaine, being not conveyed away in the Constitution.

CHAP. III. Of the division of Monarchy into Elective and Suc­cessive.

THe second division of Monarchy, which I intend to Sect. 1 treat of, is that of Elective or Successive.Elective and successive Mo­narchy what they are? Elective Mo­narchy is that, where by the fundamentall constituti­on of the State, the supreme power is conveyed but to the person of him whom they take for their Prince; the people reserving to themselves power, by men deputed by the same constitution to elect a new person on the decease of the for­mer. Successive is, where by the fundamentall constitution of the State, the Soveraignty is conferred on one Prince; and in that one, as a root and beginning to his heires, after a forme and line of succession, constituted also by the funda­mentals of that Government. In the first, the Peoples oath and contract of subiection extends but to one person: In the other, to the whole Race and Line of Successors; which continuing, the bond of subjection continues; or which failing, the people returne to their first liberty, of choosing a new person, or succession to be invested with Soveraignty.

I doe conceive that in the first originall all Monarchy, yea Sect. 2 any individuall frame of Government whatsoever,All Monarchy whether origi­nally from con­sent? is ele­ctive: that is, is constituted, and drawes its force and right from the consent and choice of that Community over which it swayeth. And that triple distinction of Monar­chy in o that which is gotten by Conquest, Prescription, or Choice is, not of distinct parts unlesse by Choice be meant full and formall Choice: my reason is, because man being a voluntary agent and subiection being a morall act, it doth essentially depend on consent: so that a man may by force and extremity be brought under the power of another, as unreasonable creatures are, to be disposed of, and trampled [Page 20] on, whether they will or no: But a bond of subjection can­not be put on him, nor a right to claime Obedience and Ser­vice acquired, unlesse a man become bound by some act of his owne Will. For, suppose another, from whom I am ori­ginally free, be stronger then I, and so bring mee under his mercy doe I therefore sin if I doe not what he commands me? or can that act of violence passe into a morall title, without a morall principle?

Sect. 3 But this will be more manifest, if by induction I shew how other titles resolve into this.Monarchy by divine institution. I will begin with that of di­vine institution. Saul and David were by the Sacrament of anointing designed to the Kingdome, as it were by Gods owne hand, which notwithstanding, they were not actually Kings till the Peoples consent established them therein: That unction was a manifestation of the appointment of God, and when it was made knowne to the People, I thinke it had the power of Precept, to restraine the Peoples choice to that person; which if they had not done, they had resi­sted Gods ordinance. Yet they were not thereby actually endowed with Kingly power, but remained as private men, till the Peoples choice put them in actuall possessi­on of that Power, which in David was not till after many yeares.

Sect. 4 Then for that of Usuage or Prescription; if any such did ever constitute a Monarchie,Monarchy by prescription. it was by vertue of an Univer­sall consent by that Usuage and Prescription proved and implyed: For in a Popular state, where one Man in the Communitie, by reason of great estate, Wisdome, or other Perfection is in the eye of all the rest, all reverence him, and his advice they follow: and the respect continues from the People to the house and family, for divers genera­tions. In this case, subjection at first is arbitrary in the peo­ple; and if in time it become necessary, it is because their Custome is their Law; and its long continuance is equi­valent to a formall Election: so that this Tenure and Right if it be good and more then at pleasure, as it was at first, the [Page 21] considerate must needs ascribe it to a consent, and implicite choyce of the People.

But the mayn Question is concerning Monarchy archie­ved Sect. 5 by Conquest;Monarchy by conquest. where at first sight the Right seems gotten by the Sword, without the consent and Choyce of the Peo­ple, yea against it. Conquest is either 1. Totall where a full Conquest is made, by a totall subduing a people to the Will of the Victor: or 2. Partiall, where an entrance is made by the Sword: But the People either because of the Right claymed by the Invader; or their unwillingnesse to suffer the Mise­ries of Warre, or their apparent inability to stand out in a way of Resistance, or some other consideration, submit to a composition and contract of subjection to the Invader. In this latter it is evident, the Soveraignes Power is from the Peoples consent; and the Government is such as the Con­tract and fundamentall agreement makes it to be if it be the first Agreement, and the pretender hath no former Title which remaines in force, for then this latter is invalid, if it include not and amount to a relinquishing and disanulling of the Old. But the difficulty is concerning a full and meere Conquest; and of this I will speak my mind clearly. Such a Warre and Invasion of a People, which ends in a Conquest, 1. it is either upon the pretence or claim of a Title of Sove­raignty over the People invaded: and then, if the pretender prevaile, it is properly no Conquest, but the vindication of a Title by force of Armes. And the Government is not Ori­ginall, but such as the Title is by which he claymes it. 2. Or it is by One who hath no challenge of Right descending to him to justifie his claim and Invasion of a People: Then if he subdue, he may properly be said to come to his Govern­ment by Conquest.

And there be who wholly condemne this title of Con­quest as unlawfull,Whether con­quest give a iust title? and take it for nothing else but a Natio­nall and publike robbery: so one of the Answerers to Doctor Ferne, saies in his p. 10. Conquest may give such a right as Plun­derers use to take in houses they can master.— It is inhumane [Page 22] to talke of right of Conquest in a Civill, in a Christian State. But I cannot allow of so indefinite a Censure: rather I think the right of Conquest is such as the precedent Warre was: if that were lawfull, so is the Conquest: For a Prince may be inva­ded, or so farre injured by a neighbour People, or they may be set on such a pernicious enmitie against him and his peo­ple, that the safety of himselfe and people may compell to such a Warre, which warre if it end in Conquest, who can judge such Title unlawfull? Suppose then Conquest may be a lawfull way of acquisition: yet an immediate cause of right of Soveraignty; that is, of a Civill power of Government to which obedience is due, it cannot be: I say, an immediate cause, for a remote impulsive cause it oft is, but not an im­mediate formall cause; for that must ever be the consent of the people, whereby they accept of, and resigne up them­selves to a Government, and then their Persons are morally bound, and not before. Thus far the force of conquest may goe; it may give a man title over, and power to possesse and dispose of the Countrey and Goods of the Conquered; yea, the Bodies and lives of the Conquered are at the Will and Pleasure of the Conquerour: But it still is at the Peoples choice to come into a morall condition of subiection or not. When they are thus at the mercy of the Victor, if to save life they consent to a condition of servitude or subiection, then that consent, oath, or covenant, which they in that ex­tremity make, being in relicita, bindes them, and they owe morall Duty. But if they would rather suffer the utmost violence of the Conquerour, and will consent to no termes of subjection as Numantia in Spaine, and many other People have resolved; they die or remaine a free People. Be they captived or possessed at pleasure, they owe no duty, neither doe they sin in not obeying; nor doe they resist Gods ordi­nance, if at any time of advantage they use force to free themselves from such a violent possession: yea perhaps, if before by contract they were bound to another, they should sin if to avoid death or bondage they should sweare or cove­nant fealty to a Conquerour, and it were more noble and laudable to die in the service, and for the faith to their natu­rall [Page 23] Soveraigne. Thus I am perswaded it will appeare an un­controlable truth in Policie, that the consent of the People, either by themselves or their Ancestors is the only mean in ordinary providence by which soveraignty is conferred on a­ny Person or Family: neither can Gods ordinance be con­veyed and People engaged in conscience by any other means.

It hath been affirmed by some, that mixture and limitati­on Sect. 6 is inconsistent to successive Monarchy;Whether a Mo­narch by succession may not be limited? as if where ever Soveraignty is entailed to a succession, it must needs be ab­solute: But I must professe I cannot see how it can stand with truth: Rather I thinke, that both Elective and Heredi­tary Monarchy are indifferently capable of absolutenesse or limitation. If a free, and not pre-ingaged People to any Government, by publike compact yeeld up themselves to a Person, to be commanded by his Will as their supreme Law, during his naturall life, and no longer, can it be denied but that he is an absolute, and yet Elective Monarch? unlesse you will say, he is not absolute, because he cannot by his Will, as by a Law, bind them to elect his sonne to succeed him, and change their Government into hereditary. But his being limited in this Clause doth not disparage his So­veraignty, or make his power of Government limited, be­cause this belongs not to present Government, but is a meere provision for the future. Againe, if the power of Ruling according to a Law, be by consent conveyed to one Person, and his heires to succeed after him, how this should come to be absolute and the entailement should overthrow the con­stitution, I cannot imagine: If the whole latitude of power may be by a People made hereditary sure a proportion may as well; unlesse the limitation be such as includes a repug­nancy to be perpetuall. Indeed this enstating of a succession makes that power irrevocable, during the continuance of that succession but it makes it neither greater nor lesse in the Successor then was in his Progenitors, from whom hee derives it.

In a successive Monarchy the Successor holds by the ori­ginall Sect. 7 [Page 24] Right of him who is the root of succession; and is de jure King the immediate instant after his Predecessors de­cease: Also the people are bound [...] him, though they ne­ver take any Oath to his person. For as he commands in vertue of the originall Right, so they are bound to obey by vertue of the originall Covenant, and nationall Contract of Subiection: the new oath taken either by King or People, is but a reviving of the old; that the Conscience of it by re­newing might be the more fresh and vigorous: it neither gives any new power, nor addes or detracts from the old, un­lesse by common agreement an alteration be made; and so the foundation in that clause is new, which cannot be with­out the consent of both parties.

CHAP. IIII. Of the Division of Monarchy into Simple and Mixed.

Sect. 1 THe third division is into Simple and Mixed. Simple is when the Government absolute or limited is so in­trusted in the hands of one,Simple and mixed Monar­chy, what? that all the rest is by depu­tation from him: so that there is no authority in the whole Body but his, or derived from him: And that One is either individually one Person, and then it is a simple Monarchy: Or one associate Body, chosen either out of the Nobility, whence the Government is called a simple Aristocraty: or out of the Community, without respect of birth or state, which is termed a simple Democracy. The supreme autho­rity residing exclusively in one of these three, denominates the Government simple, which ever it be.

Now experience teaching People, that severall inconveni­ences are in each of these, which is avoided by the other: as aptnesse to Tyranny in simple Monarchy: aptnesse to de­structive Factions in an Aristocracy: and aptnesse to Confu­sion and Tumult in a Democracy. As on the contrary, each [Page 25] of them hath some good which the others want, viz. Unity and strength in a Monarchy; Counsell and Wisedome in an Aristocracy; Liberty and respect of Common good in a Democracy. Hence the wisedome of men deeply seene in State matters guided them to frame a mixture of all three, uniting them into one Forme, that so the good of all might be enjoyed, and the evill of them avoyded. And this mixture is either equall, when the highest command in a State by the first Constitution of it is equally seated in all three; and then (if firme Union can be in a mixture of Equality) it can be called by the name of neither of them but by the generall stile of a Mixed State: or if there be priority of Order in one of the three, (as I thinke there must be or else there can be no Unity) it may take the name of that which hath the precedency. But the firmer Union is, where one of the three is predominant and in that regard gives the denomination to the whole: So we call it a Mixed Monarchy, where the pri­mity of share in the supreme power is in one.

Now I conceive to the constituting of Mixed Monarchy Sect. 2 (and so proportionately it may be said of the other.What it is which consti­tutes a mixed Monarchy?)

1. The Soveraigne power must be originally in all three, viz. If the composition be of all three so that one must not hold his power from the other, but all equally from the fun­damentall Pos. 1 Constitution: for if the power of one be origi­nall, and the other Derivative, it is no mixture, for such a Derivation of power to others is in the most simple Mo­narchy: Againe, the end of mixture could not be obteyned; for why is this mixture framed, but that they might confine each other from exorbitance, which cannot be done by a derivate power, it being unnaturall that a derived power should turne back, and set bounds to its owne beginning.

2. A full equality must not be in the three estates, though Pos. 2 they are all sharers in the Supreame power; for if it were so, it could not have any ground in it to denominate it a Mo­narchie, more then an Aristocracie or Democracie.

3. A power then must be sought wherewith the Monarch Pos. 3 must be invested, which is not so great as to destroy the [Page 26] mixture; nor so titular as to destroy the Monarchy; which I conceive maybe in these particulars.

1. If he be the head and Fountaine of the power which governs and executes the established Lawes, so that both the other States as well conjunctim as divisim, be his sworne sub­jects, and owe obedience to his commands, which are accor­ding to established Lawes.

2. If he hath a sole or chiefe power in capacitating and putting those persons or societies in such States and conditi­ons, as whereunto such Supreme power by the foundations of the Government doth belong, and is annexed: so that though the Aristocratical and Democraticall power which is conjoyned to his, be not from him: yet the definement and determination of it to such persons is from him, by a ne­cessary consecution.

3. If the power of convocating or causing to be put in ex­istence, and dissolving such a Court or Meeting of the two other estates as is authoritative, be in him.

4. If his authority be the last and greatest, though not the sole, which must establish and adde a consummatum to every Act. I say these, or any of these put into one person makes that State Monarchicall, because the other, though they depend not on him quoad essentiam et actus formales, but on the prime constitution of the Government, yet quoad existenti­am et determinationem ad subjecta, they doe.

The Supreme power being either the Legislative or the Gubernative. In a mixed Monarchy sometimes the mixture is the seate of the Legislative power, which is the chiefe of the two: The power of constituting officers for governing by those Lawes being left to the Monarch: Or else the Pri­macie of both these powers is jointly in all three: For if the Legislative be in one, then the Monarchy is not mixed but simple, for that is the Superiour, if that be in one, all else must needs be so too: By Legislative, I meane the power of making new Lawes, if any new be needfull to be added to the foundation: and the Authentick power of interpreting the old; For I take it, this is a branch of the Legislative and is as great, and in effect the same power.

[Page 27]Every mixed Monarchy is limited: but it is not necessary Sect. 3 that every limited should be mixed: For the Prince in a mixed Monarchy, were there no definement of him to a Law but onely this: that his Legislative acts have no validity without the allowance and joint authority of the other: this is enough to denominate it exactly a limited Monarchy: and so much it must have, if it be mixed. On the other side, if in the foundations of his Government he be restrained to to any Law besides his own Will, he is a limited Monarch, though that both the Legislative and Gubernative pow­er (provided he exceed not those Lawes) be left in his owne hands: But then the Government is not mixed.

Now concerning the extent of the Princes power, and the Sect. 4 subjects duty in a mixed Monarchy,How far the Princes power extends in a mixed Mo­narchy? almost the same is to be said, which was before in a limited: for it is a generall rule in this matter: such as the Constitution of Government is, such is the Ordinance of God: such as the Ordinance is, such must our duty of subjection be. No Power can chal­lenge an obedience beyond its owne measure; for if it might, we should destroy all Rules and differences of Government, and make all absolute and at pleasure. In every mixed Prin­cipality.

First, Looke what Power is solely entrusted and commit­ted Assert. 1 to the Prince by the fundamentall Constitution of the State, in the due execution thereof all owe full subjection to him, even the other Estates, being but societies of his sub­jects bound to him by Oath of Allegeance as to their liege Lord.

Secondly, those acts belonging to the power which is sta­ted Assert. 2 in a mixed Principle if either part of that Principle, or two of the three undertake to doe them it is invalid it is no binding Act; for in this case all three have a free Negative voice: and take away the priviledge of a Negative Voice, so that in case of refusall the rest have power to doe it without the third, then you destroy that. Third, and make him but a Looker on: So that in every mixed Government, I take it, there must be a necessity of concurrence of all three Estates [Page 28] in the production of Acts belonging to that power, which is committed in common to them: Else suppose those Acts valid which are done by any major part, that is, any two of the three, then you put it in the power of any two, by a con­federacy at pleasure to disanull the third, or suspend all its Acts, and make it a bare Cypher in Government.

Assert. 3 Thirdly in such a composed State, it the Monarch in­vade the power of the other two, or run in any course tend­ing to the dissolving of the constituted frame, they ought to employ their power in this case to preserve the State from ruine; yea that is the very end and fundamentall aime in constituting all mixed Policies: not that they by crossing and jarring should hinder the publike good; but that, if one exorbitate, the power of restraint and providing for the pub­like safety should be in the rest: and the power is put into di­vers hands, that one should counterpoize and keep even the other: so that for such other Estates, it is not onely lawfull to deny obedience and submission to illegall proceedings, as private men may, but it is their duty, and by the foundati­ons of the Government they are bound to prevent dissolu­tion of the established Frame.

Assert. 4 Fourthly, the Person of the Monarch, even in these mixed Formes, (as I said before in the limited) ought to be above the reach of violence in his utmost exorbitances: For when a People have sworne allegeance, and invested a Person or Line with Supremacy, they have made it sacred, and no ab­use can devest him of that power, irrevocably communica­ted. And while he hath power in a mixed Monarchy, he is the Universall Soveraigne, even of the other limiting States: so that being above them, he is de jure exempt from any pe­nall hand.

Assert. 5 Fifthly, that one inconvenience must necessarily be in all mixed Governments, which I shewed to be in limited Go­vernments, there can be no Constituted, Legall, Authori­tative Judge of the fundamentall Controversies arising be­twixt the three Estates. If such doe arise, it is the fatall dis­ease of these Governments, for which no salve can be pre­scribed; For the established being of such authority, would [Page 29] ipso facto overthrow the Frame, and turne it into absolute­nesse: So that if one of these, or two, say their power is inva­ded, and the Government assaulted by the other, the Accu­sed denying it, it doth become a controversie: of this questi­on there is no legall Judge, it is a case beyond the possible provision of such a Government. The Accusing side must make it evident to every mans Conscience. In this case, which is beyond the Government, the Appeale must be to the Community, as if there were no Government; and as by Evidence mens Consciences are convinced, they are bound to give their utmost assistance. For the intention of the Frame in such States, justifies the exercise of any power, conducing to the safety of the Universality and Govern­ment established.

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 [Page 31] the way of Government used, and to be used in this Realme, is a designed way: Onely some speake as if this Definement were an act of Grace from the Monarchs themselves, being pleased at the suit, and for the good of the People, to let their power run into act through such a course and current of Law: whereas, if they at any time shall thinke fit on great causes to vary from that way, and use the full extent of their power, none ought to contradict, or refuse to obey. Neither is it the question, Whether they sin against God if they ab­use their power, and run out into acts of injury at pleasure, and violate those Lawes which they have by Publike Faith and Oath promised to observe; for none will deny this to be true, even in the most absolute Monarch in the world. But the point controverted is punctually this, Whether the Autho­rity which is inherent in our Kings be boundlesse and absolute, or li­mited and determined, so that the acts which they doe, or command to be done without that compasse and bounds, be not onely sinfull in them­selves, but invalid and non-authoritative to others?

Now for the determining hereof, I conceive and am in Sect. 2 my Judgement perswaded,Assert. that the Soveraignty of our Kings is radically and fundamentally limited, and not onely in the Use and Exercise of it: And am perswaded so on these grounds and Reasons.

First, Because the Kings Majesty himselfe, who best Reas. 1 knowes by his Councell the nature of his own power, sayes, thatDeclar 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.

[Page 32] Reas. 2 Secondly, because it is in the very Constitution of it mi­xed, as I shall afterwards make it appeare, then it is radically limited; for as I shewed before, every mixed Monarchy is li­mited, though not on the contrary: for the necessary con­nexion of other power to it, is one of the greatest limitati­ons. A subordination of Causes doth not ever prove the su­preme Cause of limited virtue; a co-ordination doth al­wayes.

Reas. 3 Thirdly, I prove it from the ancient, ordinary, and recei­ved denominations; for the Kings Majesty is called out Liege, that is, Legall Soveraigne; and we his Liege that is, his Legall Subjects: what doe these names argue, but that his So­veraignty and our subjection is legall that is, restrained by Law?

Reas. 4 Fourthly, had we no other proofe, yet that of Prescription were sufficient: In all ages, beyond record, the Lawes and Customes of the Kingdome have been the Rule of Govern­ment; Liberties have been stood upon, and Grants thereof, with limitations of Royall power, made and acknowledged by Magna Charta, and other publike and solemne acts; and no Obedience acknowledged to be due but that which is accor­ding to Law, nor claimed but under some pretext and title of Law.

Reas. 5 Fifthly, the very Being of our Common and Statute Lawes, and our Kings acknowledging themselves bound to governe by them, doth prove and prescribe them Limited: for those Lawes are not of their sole composing, nor were they established by their sole Authority, but by the concur­rence of the other two Estates: so that to be confined to that which is not meerly their owne, is to be in a limited condition.

Pleaders for defensive armes Sect. 2. & 4.Some there be which have lately written on this subject, who take another way to prove our Government limited by Law, viz. by denying all absolute Government to be law­full; affirming that Absolute Monarchy is not at all Gods Ordinance, and so no lawfull power secured from resistance. What is their ground for this? God allowes no man to rule as he list, nor puts mens lives in the pleasure of the Mo­narch: [Page 33] It is a power arbitrary and injurious. But I desire those Authors to consider, that in absolute Monarchy there is not a resignation of men to any Will or list, but to the rea­sonable Will of the Monarch, which having the Law of reason to direct it, is kept from injurious acts. But see for defence of this Government, Part 1. cap. 2.

Having set downe those Reasons on which my Judgement Sect. 3 is setled on this side, I will consider the maine Reasons wherby some have endeavoured to prove this Government to be of an absolute nature, and will shew their invalidity. Many Divines perhaps inconsiderately, perhaps wittingly for self ends, have beene of late yeares strong Pleaders for Absolutenesse of Monarchicall Power in this Land; and pres­sed Obedience on the Consciences of People in the utmost extremity, which can be due in the most absolute Monar­chy in the world; but I seldome or never heard or read them make any difference of Powers, but usually bring their proofes from those Scriptures, where subjection is com­manded to the higher Powers, and all resistence of them for­bidden and from Examples taken out of the manner of the government of Israel and Judah: as if any were so impious to contradict those truths, and they were not as well obeyed in Limited Government as in Absolute; or as if Examples taken out of one Government do alwayes hold in another, unlesse their aime were to deny all distinction of Governments, and to hold all absolute, who have any where the supreme power conveyed to them.

Among these, I wonder most at that late discourse of Dr. Ferne, who in my Judgement avoucheth things inconsistent, and evidently contradictory one to the other: For in his Pre­face he acknowledges our Obedience to be limited and cir­cumscribed by the Lawes of the Land, and accordingly to be yeelded or denied to the higher Power; and that he is as much against an absolute Power in the King and to raise him to an arbitrary way of Government, as against resistence on the Subjests part: also, that his power is limited by Law, Sect. 5. Yet on the other side he affirmes, That the King holds his Crown by conquest; [Page 34] that it is descended to him by three Conquests, Sect. 2. that we e­ven our Senate of Parliament hath not so much plea for re­sistence as the ancient Romane Senate had under the Romane Emperours, whose power we know was absolute, Sect, 2. that in Monarchy the judgement of many is reduced ro one: that Monarchy settles the chief power and finall Judgment in one, Sect. 5 what is this but to confesse him limited: and yet to maintain him absolute?

Arguments on the contrary dissolved.But let us come to the Arguments. First, say they, our Kings came to their right by Conquest; yea, saies the Dr. by three Conquests: He meanes the Saxons, Danes, and Nor­mans, as appears afterwards: Therefore their right is abso­lute. Here, that they may advance themselves, they care not though it be on the ruine of publique liberty, by bringing a whole Nation into the condition of conquered slaves: But to the Argument. 1. Suppose the Antecedent true, the Consequution is not alwaies true; for as is evident before in the first Part. All Conquest doth not put the Conqueror in­to an absolute right. He may come to a right by Conquest: but not sole Conquest; but a partiall, occasioning a Right by finall Agreement; and then the right is specificated by that fundamentall agreement: Also he may by sword prose­cute a claime of another nature: and in his war intend on­ly an acquiring of that claimed right, and after conquest rest in that: Yea farther, he may win a Kingdome meerly by the Sword and enter on it by right of Conquest: yet consider­ing that right of conquest hath too much of force in it to be safe and permanent; he may thinke conquest the best meane of getting a Kingdome, but not of holding, and in wisdome for himselfe and posterity, gaine the affections of the people by deserting that Title, and taking a new by Politique agree­ment, or descend from that right by fundamentall grants of liberties to the people, and limitations to his own power: but these things I said in effect before, in the first part, only here I have recalled them, to shew what a non sequitur there is in the Argument. But that which I chiefly intend, is to shew the infirmity or falsehood of the Antecedent: it is an As­sertion most untrue in it selfe; and pernitious to the State: [Page 35] Our Princes professe no other way of comming to the Crown, but by right of succession to rule free subjects in a legall Monarchy. All the little shew of proofe these Asser­tors have, is from the root of succession: So William com­monly called the Conquerour. For that of the Saxons was an expulsion not a Conquest, for as our Histories record, They comming into the Kingdome drove out the Britaines, and by degrees planted themselves under their Comman­ders; and no doubt continued the freedome they had in Ger­many: unles we should thinke that by conquering they lost their own Liberties to the Kings for whom they conquered and expelled the British into Wales. Rather I conceive, the Originall of the subjects libertie was by those our fore-fa­thers brought out of Germany: Where, as Tacitus reports, Tacit. de Mo­rib. German. Sect. 3. & 5. nec Regibus infinita aut libera potestas: Their Kings had no abso­lute but limited power: and all weighty matters were dis­patched by generall meetings of all the Estates. Who sees not here the antiquity of our Liberties and frame of Go­vernment? so they were governed in Germany, and so here to this day, for by transplanting themselves, they changed their soyl; not their manners and Government: Then, that of the Danes was indeed a violent Conquest; and, as all violent rules, it lasted not long; when the English expelled them they recovered their Countrey and Liberties together. Thus it is clear, the English Libertie remained to them till the Nor­man Invasion, notwithstanding that Danish interruption. Now for Duke William, I know nothing they have in him but the bare stile of Conqueror, which seems to make for them: The very truth is, and everie intelligent reader of the Historie of those times will attest it, that Duke William pretended the grant and gift of King Edward who died with­out children and he came with forces into this Kingdome, not to Conquer but make good his Title against his enemies: his end of entring the Land was not to gaine a new absolute Title but to vindicate the old limited one, whereby the Eng­lish Saxon Kings his Predecessors held this Kingdome. Though his Title was not so good as it should be,Camb [...]n. Britan. Norma [...]. yet it was better then Harolds, who was onely the Sonne of Goodwyn, [Page 36] Steward of King Edwards house; Whereas William was Cou­sen to Emma mother to the said King Edward; by whom he was adopted; and by solemne promise of King Edward was to succeed him: Of which promise Harold himselfe became surety, and bound by oath to see it performed: Here was a faire Title, especially Edgar Atheling the right Heire being of tender age, and dis-affected by the people. Neither did he proceed to a full Conquest, but after Harola who usurped the Crown was slain in battle, and none to succeed him, the Throne being void, the people chose rather to submit to William and his Title, then endure the hazzard of ruining war, by opposing him, to set up a new King: It is not to be imagined, that such a Realme as England could be conquered by so few, in such a space, if the peoples voluntary accep­tance of him and his claime had not facilitated and shortned his undertaking. Thus we have it related in Mr. 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, [Page 37] which have remained till this day: On the same Title he claimed and was inaugurated, was he King which was a title of rightfull succession to Edward: therfore he was indeed King not as Conqueror, but as Edwards Successor, and on the same right as he and his Predecessors held the Crowne. As also by the grant of the former Lawes and forme of Govern­ment, he did equivalently put himselfe and successors into the State of legall Monarchs, and in that Tenure have all the Kings of this Land held the Crown till this day, when these men would rake up and put a Title of Conquest upon them, which never was claimed or made use of by him who is the first root of their succession.

Another reason which they produce is the successive na­ture Sect. 4 of this Monarchy: for with them, to be elective and limited, and to be successive and absolute, are equipollent: They conceive it impossible that a Government should be Hereditary and not absolute: But I have enough made it ap­pear, Part 1. Chap. 2. Sect. 6. That succession doth not prove a Monarchie absolute from limitation, though it proves it absolution from interruption and discontinuance, during the being of that succession to which it is defined. And that which they object that our Kings are actually so before they take the Oath of governing by Law, and so they would be, did they never take that Oath; wherefore it is no Limitati­on of their royall power, is there also answered in the next Sect. and that so fully, that no more need be said. The same Law which gives the King his Crown immediatly upon the decease of his Predecessor, conveyes it to him with the same Determinations and Prerogatives annexed, with which his Progeintors enjoyed it so that he entring on that Origi­nall Right, his subjects are bound to yeild obedience, before they take any Oath: And he is bound to the Lawes of the Monarchy before he actually renewes the bond by any Per­sonall Oath. There is yet another argument usually brought to this purpose, taken from the Oath of Allegiance: but of that I shall have occasion to speake hereafter.

CHAP. II. Supposing it be in the Platforme limited.Quest. 2. Wherein, and how far forth it is limited and defined?

Pos. 1 I Conceive it fundamentally limited in five particulars. First, in the whole latitude of the Nomotheticall power; so that their power extends not to establish any Act, which hath the Being and state of a Law of the Land: nor give an authenticke sense to any Law of doubtfull and con­troverted meaning, solely and by themselves, but together with the concurrent Authority of the two other Estates in Parliament.

Pos. 2 Secondly, in the Governing Power, there is a confinement to the Fundamentall Common Lawes, and to the superstru­ctive Statute Lawes, by the former concurrence of Powers enacted, as to the Rule of all their Acts and Executions.

Pos. 3 Thirdly, in the power of constituting Officers, and meanes of governing; not in the choice of Persons for that is intrusted to his Judgement, for ought I know, but in the constitution of Courts of Judicature: For as 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 [Page 39] his 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 onely 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.

[Page 40] Reas. 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 [Page 41] his 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; onely 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: onely 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 onely 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 [Page 42] power, and not barely of counsell and advice.

Object. 2 Secondly, the two Houses together with the King, are the supreme Court of the Kingdome; but taken divisely from the King, it is no Court, and consequently hath no power. Sol. Suppose them no entire Court divided from the King, yet they are two Estates of the three which make up the su­preme Court; so that they have a power and authority, though not complete and sufficing to perfect an Act, with­out the concourse of the third: For it appeares by the Acts of that Court, that every of the three Estates hath a Legisla­tive power in it; every Act being enacted by the Kings most excellent Majesty, and by the Authority of the Lords and Com­mons assembled in Parliament.

Sect. 3 Thirdly, they have an authority, but in subordination to Object. 3 the King, and derived from him, as his Parliament. Indeed this is a maine Question, and hath very weighty Arguments on both sides,Whether the authority of the two Hou­ses be derived from the King? viz. Whether the authority of both the Houses be a subordinate authority, and derived from the King as its originall? Three Reasons seeme strong for the affirmative: First, be­cause it is his Parliament, so called and acknowledged: If his Court, then the power whereby they are a Court is his power, derived from him, as the power of other Courts is. Secondly, because he hath the power of calling and dissol­ving it. Thirdly, because he is acknowledged in the Oaths of Allegeance and Supremacy to be the Head, and of su­preme authority in the Kingdome, and all subject to him.

And whereas some make answere that he is Singulis major, but Vniversis minor, Treatise enti­tituled, A ful­ler Answer to Dr. Ferne. so the Answerer to Doctor Ferne, I won­der that the Proposition of the Observator, that the King is Vniversis minor, should be so much exploded. Every mem­ber 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 [Page 43] to Democracy; For looke where the apex potestatis is, there is the Government. Also it is against Common Reason: For the King, is he not King of the Kingdome? and what is the Kingdome but all united? all the particulars knit toge­ther in one body politick? so that if he be King of the King­dome, he is Vniversis major too; for the King is major, and the Kingdome is the united universe of the People. Thus those expressions are some of them false, some though secundum quid true; yet spoken simply, and in that manner, are scan­dalous and incompatible to Monarchy. Thus you see what may be said on the one side, to prove the King to be the ori­ginall of all power, even of that which is in the Houses of Parliament assembled.

On the other side are as weighty Arguments to prove the contrary, viz. That the two Houses authority is not depen­dent, nor derived from the Royall power. First, the autho­rity of the Houses being Legislative, is the supreme, and so cannot bee derived. Three concurrent Powers producing one supreme act, as con-cause, joint causes of the same high­est effect cannot have a subordination among themselves in respect of that casualty; it not being imaginable how a pow­er can cause the supreme effect, and yet be a subordinate and derived power. Secondly, the end of constituting these two Estates being the limiting and preventing the excesses of the third, their power must not be totally dependent and deri­ved from the third, for then it were unsuitable for the end for which it was ordained: For to limit an Agent by a pow­er subordinate and depending on himself, is all one as to leave him at large without any limitation at all. Thirdly, that which hath beene spoken of a mixed Monarchy, doth fully prove that the two other powers which concurre with the Monarch, to constitute the mixture, must not be altogether subordinate to it, and derived from it. I must professe these Reasons to prevaile with me, that I cannot conceive how the authority of the two Houses can in the whole being of it, be a dependent and derived power.

That we may find out the truth amidst this potent con­tradiction Sect. 4 [Page 44] of both sides,Resolution of the Question. recourse must be had to the Architecture of this Government, whereof I must declare my self to be so great an Admirer, that what ever more then humane wisedom had the contriving of it, whether done at once, or by degrees found out and perfected, I conceive it un­paralleld for exactnesse of true policy in the whole world; such a care for the Soveraignty of the Monarch, such a pro­vision for the liberty of the People, and that one may bee justly allayed, and yet consist without impeachment of the other, that I wonder how our Forefathers in those rude un­polished times could attain such an accurate composure. First then suppose a people, either compelled to it by conquest, or agreeing to it by free consent, Nobles and Commons set over themselves by publike compact one Soveraigne, and re­signe up themselves to him and his heires, to be governed by such and such Fundamentall Lawes: there's a supremacy of power set up, though limited to one course of exercise. Se­condly, then because in all Governments after cases will come, it requiring an addition of Lawes, suppose them cove­nanting with their Soveraigne, that if cause be to constitute any other Lawes, hee shall not by his sole power doe that worke, but they reserve at first, or afterwards it is granted them (which is all one) a hand of concurrence therein, that they will be bound by no Lawes, but what they joyne with him in the making of. Thirdly, because though the Nobles may personally convene, yet the Commons (being so ma­ny) cannot well come together by themselves to the doing of such a worke, it be also agreed, that every Corporation of the Commons shall have power to depute one or more to be for the whole in this publike legislative businesse; that so the Nobles by themselves, the Commons by their Depu­ties assembling, there may be representatively the whole bo­dy, having Commission to execute that reserved authority for establishing new Lawes. Fourthly, because the occasion and need of making new Lawes, and authentick expounding the old, would not be constant and perpetuall, and it would carry an appearance of a Government in which were three Heads and chiefe Powers, they did not stablish these Estates [Page 45] to be constantly existent, but occasionally, as the causes for which they were ordained should emerge and happen to be. Fifthly, because a Monarchy was intended and there­fore a Supremacy of power (as farre as possible) must be reserved for one, it was concluded that these two Estates should be Assemblies of his Subjects sworne to him, and all former Lawes; the new, which by agreement of Powers should be enacted, were to be his Lawes, and they bound to obey him in them as soone as established: And being suppo­sed that he who was to governe by the Lawes, and for the furtherance of whose Government the new Lawes were to be made, should best understand when there was need, and the assembling and dissolving the two Estates meeting, was a power of great priviledge, it was put into the Princes hand by writ to convocate and bring to existence, and to adjourne and dismisse such meetings Sixthly, in processe of time Princes not caring much to have their Government looked into, or to have any power in act but their own, took advan­tage of this power of convocating those Estates, and did more seldome then need required make use of it; whereon provisi­on was made, and a time set within which an Assembly of Parliament was to be had. Now when you have made these suppositions in your minde, you have the very modell and platforme of this Monarchy, and we shall easily find what to answer to the arguments before produced on either side. For first it is his Parliament, because an assembly of his subjects, convocated by his Writ, to be his Councell, to assist him in making Lawes for him to govern by: yet not his, as other Courts are altogether deriving their whole authority from the fulnesse which is in him. Also his power of assembling and dissolving proves him thus far above them, because in their existence they depend on him; but their power and au­thority quoad specificationem, the being and kind of it, is from originall constitution: for they expect no Commission and authority from him, more then for their meeting and re­ducing into existence; but existing, they worke according to the priviledges of their constitution, their acts proceed­ing from their conjunct authority with the Kings, not from [Page 46] its subordination to the Kings. The oath of Allegeance binds them, and respects them as his subjects, to obey him, govern­ing according to established Lawes: it supposes and is built upon the foundations of this Government, and must not be interpreted to overthrow them▪ he is thereby acknowledged to be supreme so far as to rule them by Lawes already made; not so far as to make Lawes without them, so that it is no derogation to their power; and I beleeve of these things none can make any question. Therein consists the accurate Judgement of the Contrivers of this Forme, they have given so much into the hands of the soveraign, as to make him tru­ly a Monarch; and they have reserved so much in the hands of the two Estates, as to enable them to preserve their owne liberty.

CHAP. IIII. Quest. 4 How farre forth it is mixed; and what parts of the Power are referred to a mixed Principle?

I Shall be the briefer in this, because an answer to it may be easily collected out of the precedent Questions: for he who knowes how farre this Government is limited, will soon discerne how farre it is mixed, for the Limitation is mostly affected by the mixture:Three points of mixture. but distinctly, I conceive that there are three parts of the power referred to the joint concourse of all three Estates: So that either of them not consenting or suspending its influence the rest cannot reduce that power ordinarily and legally into act.

1 The first is the Nomotheticall power, understanding by it the power of making, and authentick expounding Lawes, so that I believe an act cannot have the nature and forme of a Law of the Land, if it proceed from any one, or two of these, without the positive concurrence of the third.

2 Secondly, The power of imposing taxes and payments on mens estates: that the King by himself cannot assume mens [Page 47] properties by requiring impositions not granted him by Law, is often confested: And that the other Estates cannot doe it by themselves, I conceive it as unquestionable: For it were strange to give that to the secondary and assisting Powers, which is denied to the Soveraigne and principall. If it be ob­jected that every Corporation electing Deputies, and autho­rizing them to be vice totius Communitatis, do thereby grant them power, and entrust them as to make laws to bind them, so to dispose of any part of their estate, either by rate or payment for the publique good: I answer, that they are by that deputation enabled as for one, so for the other; that is, according to the fundamentall usuage of the Kingdome; that is, by the joint consent of the other estates, for though the house of Commons is chosen by the people, and they repre­sent the people, yet the representation doth not give them a power which was not in the people. Now the people have no power to doe an act which either directly, or by consequence doth put it in the will and pleasure of any one or two of the Estates, to overthrow the other: But this power of open­ing and shutting the Purse of the Kingdome is such a power, that if it be in one or two of the Estates, without the third, then they by that power might necessitate that other to doe any act, or disable it from its owne defence. This and the Legislative power have such a neernesse, that they cannot be divided, but must be in the same subject: this is so great a power, that put it absolutely in any Estate single, you make that Estate in effect absolute, making the rest dependent and beholding to it for their subsistence.

Thirdly, the power of dispatching the affaires of the 3 Kingdome which are of greatest difficulty and weight, the ardua regni, which the Writ for convocating the other Estates doth mention, supposing thereby that such difficul­ties are not to be dispatched by the power of one alone; for if they were, why then are the two other convocated to be as­sisting? I acknowledge many matters of great moment may be done by the Regall power, and in such case it may be said, that the other Estates are gathered ad molius tra [...]sigendum, that the advise and sense of the Community may be for dire­ction. [Page 48] But I conceive there be two sorts of affaires, which ought not to be transacted without the concurrence of all three. First, such as concerne the publike safety and weale, so far as stable detriment or advantage comes to the whole body by the well or ill carriage thereof; for then there is the same reason as in making new Lawes: For why was not the power of making any new Lawes left in the hands of one, but reserved for the concurrence of all three? save because the end of the Architects was, that no new thing which was of so much concernment as the stable good and dammage of the Kingdome, should be introduced without the consent and advice of the whole: so that if any businesse be of that moment, that it is equipollent to a Law in 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 onely 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 [Page 49] exceeding 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 [Page 50] the 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 [Page 51] prevention, 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.

[Page 52] Assert. 1.This then is my Assertion: The two Estates in Parliament may lawfully by force of Armes resist any persons or num­ber of persons advising or assisting the King in the perfor­mance of a command illegall and destructive to themselves, or the publique.

Arg. 1 1. Because that force is lawfull to be used for the publique conservation which is no resistence of the Ordinance of God; for that is the reason condemning the resistence of the Pow­ers: Now this is no resistence of Gods Ordinance: For by it neither the person of the Soveraigne is resisted, nor his power: Not his person, for we speak of Agents imployed, not of his own person: Nor his power; For the measure of that, in our Government, is acknowledged to be the Law: And therefore he cannot confer Authority to any beyond Law: so that those Agents deriving no Authority from him: are meere Instruments of his Will: Unauthorized persons; in their assaults Robbers, and, as Dr. Ferne calls them, Cut-throats. If the case be put, What if the Soveraigne himselfe in person be present with such Assaylants, joining his perso­nall assistence in the execution of his Commands? It is much to be lamented, that the will of the Prince should be so im­petuous in any subverting Act, as to hazzard his own person in the prosecution of it. Yet supposing such a case, all coun­cells and courses must betaken, that no violence be offered to his person, and Profession of none intended: But no reason the presence of his person should priviledge ruining Instru­ments from suppression, and give them an immunity to spoil and destroy subjects, better themselves; His person being se­cured from wrong; His power cannot be violated in such an Act, in which none of it can be conferred on the Agents. And sure David, though he avoided laying hands or using any vio­lence against the person of Saul, and on no extremity would have done it: Yet for the Cut-throats about him, if no o­ther means would have secured him, he would have rescued himselfe by force from their outrage: Though Saul was in their company: Else what intended he by all that force of Souldiers: And his enquiry of God at Keilah: by which it is plain, He had an intent to have kept the place by force, if [Page 53] the people would have stuck to him: Neither is it to the purpose which the Dr. saies, Sect. 2. That his example was extraordinary, because he was anointed and designed to suc­ceed Saul, for that being but a designation, did not exempt him from the duty of subjection for the present, or lessen it, as is plain by the great conscience he made of not touching Saul: But he knew it was one thing to violate Sauls Person and Power, and another to resist those Instruments of Ty­ranny, the Cut-throats which were about him.

Secondly, Because without such power of resistence in Arg. 2 the hands of subjects, all distinction and limitation of Go­vernment is vain: and all formes resolve into absolute and arbitrary; for that is so, which is unlimited; and that is unlimited, not onely which hath no limits set: but also which hath no sufficient Limits, for to be restrained from doing what I will, by a power which can restrain me no lon­ger nor otherwise then I will, is all one, as if I were left at my own Will. I take this to be cleare: Now it is as cleare, that without this forceable resistence of Instruments of usurped power be lawfull, no sufficient limits can be to the Princes Will and all Lawes bounding him are to no purpose. This appeares by enumerating the other meanes, Prayer to God: Petition to the Prince: Deniall of obedience: Deniall of Subsidie: a moderate use of the power of denying as Doctor Ferne calls it: These are all: but what are these to hinder, if a Prince be minded to overthrow all, and bring the whole Government to his own Will? For Prayer, and Petition, these are put in to fill up the number: They are no limitati­ons, they may be used in the most absolute Monarchy; for deniall of obedience, that may keep me from being an In­strument of publique servitude; but Princes Wills never want them which will yeild obedience, if I deny it; Yea e­nough to destroy all the rest, if nothing be left them but to suffer: Then for deniall of Subsidie, if he may by thousands of Instruments take all, or what he, or they please, and I must not resist: what need he care whether the people deny or grant: If a Prince be taught, that he may do it: cases and reasons will soon be brought to perswade him, that in them [Page 54] he may lawfully doe it; as late experiences have given us too much Testimonie: Thus it is apparent, that the deniall of this Power of Resistence of Instruments overthrowes and makes invalid all Government, but that which is absolute: and reduces the whole world de jure to an absolute subjecti­on, that is, servitude: for the end of all constitution of mo­derated forms is not that the supreme power might not law­fully exorbitate, but that it might have no power to exor­bitate.

The Dr. is conscious hereof; and therefore tells us in his Sect. 5. This is the very reason which is made for the Popes power of curbing and deposing Kings in case of heresie: be­cause else the Church, saies the Papist, hath no meanes for the maintenance of the Catholique Faith, and its own safe­ty: But who sees not the vast difference 'twixt these two? and that the same reason may be concluding here, which is apparently non concluding there; For 1. They thereby would draw to the Pope an authoritative power: we no such superiour power: but only a power of resistence for self-con­servation which nature and the Law of reason gives to every one; and may stand with the condition of subjection and inferiority. 2. They on this reason give the Pope a Power o­ver the very person of the King; we only of resisting of un­authorized invading destroyers, comming under the colour of an authority which is not in the Soveraigne to be derived. 3. They prove a civill right for spirituall reasons, we onely for civill reasons. 4. The Church and the faith are consti­tuted in their very formall being from Christ himselfe, who is the head and great Shepheard immediately in his owne person: and as it is his owne family; so he keeps the power of preserving it in his owne hands; having made direct and particular promises to assure us of their upholding against all subvertion, by his own power: so that here is assurance e­nough, without visible meanes of force for a spirituall body, which lives by faith. But in a civill State there is no such assurance nor supporting promises: power onely in the un­defined being of it, being Gods immediate Ordinance, and not in this specificated or determinate being: wherefore it [Page 55] hath no such immediate provision made for its preservati­on, no promise of a divine power for its standing: but as it is left by God to mens wisdome to contrive the frame, so to their providence to establish meanes of preservation. As the body is outward and Civill, so the upholding meanes must be such; spirituall and infallibly assuring a Formed State hath not, as the Church and Faith have; if there be none of outward force and power neither, then none at all it hath, and is in ill case indeed. But there is an art full of venome, when a truth can not bee beaten downe by just reasoning, then to make it odious by hatefull comparisons: so in this case aspersions are cast, as if the Patrons of Resistence did borrow the Popish and Jesuiticall grounds, and their Positi­ons as dangerous to Kings, as the Jesuites hell-bred and blou­dy Principles: whereas it appeares by all this discourse, and I am perswaded is written in Capitall Letters in the very Conscience of them which despitefully object it, that there is no congruity at all 'twixt their Doctrines, no more then 'twixt Light and Darknesse.

Thirdly, because such power is due to a publike State for Arg. 3 its preservation, as is due to a particular person: But every particular person may lawfully by force resist illegall destru­ctive Ministers, though sent by the command of a legall So­veraigne, provided no other meanes of selfe-preservation be enough. This Assumption the Doctor seemes to grant; he denies it to be lawfull against the Person of the Prince, but in effect yeelds it against subordinate persons: But the main is against the Proposition, and the Doctor is so heavie a friend to the State that he thinkes it not fit to allow it that liberty he gives every private man. But whose Judgement will concurre with his herein, I cannot imagine; for sure the Reason is greater, the publike safety being far more precious, and able to satisfie the dammages of a publike resistence, then one particular mans is of a private. But of this more in an­swer to his Reasons.

Fourthly, because it is a power put into the two Estates by Arg. 4 the very reason of their Institution; and therefore they not onely may, but also ought to use it for publike safety: yea [Page 56] they should betray the very trust reposed in them by the Fundamentals of the Kingdome if they should not. An au­thority Legislative they have: Now to make Lawes and to preserve Lawes are acts of the same power; yea, if three powers jointly have interest in making of Lawes, surely ei­ther of these severally have, and ought to use that power in preserving them. Also that the authority which the Houses have is as well given them for preserving the government by established lawes, as for establishment of lawes to govern by, is a truth proved by the constant use of their power to that end, in correcting the exorbitance of inferiour Courts, questioning delinquent Judges and Officers of State for violations, and much is done in this kinde by the sole authority of the Houses, without the concurrence or expectance of Royall power: so then, supposing they have such an authority for safety of publike Government, to question and censure in­feriour Officers for transgressions, though pretending the Kings authority, can it be denied but that their authority will beare them out to use forcible resistence against such, be Arg. 5 they more or fewer.

Fifthly, the Kings Warrant under his hand exempts not a Malefactor from the censure of a Court of Justice, nor pu­nishment imposed by Law, but the Judge must proceed a­gainst him according to Law: for the Law is the Kings publike and authoritative Will; but a private Warrant to doe an unlawfull act, is his private and unauthoritative Will: wherefore the Judge ought to take no notice of such War­rant, but to deale with the Offendor as no other then a pri­vate man. This proves that such Instruments thus illegally warranted, are not authorized; and therefore their violence may be by force resisted, as the assaults of private men, by any; and then much rather by the Houses of Parliament: which, supposing them divided from the King to have no complete authority, yet sure they have two parts of the greatest Legislative authority. But I feare I shall seeme su­perfluous, in producing Arguments to prove so cleare a truth: Is it credible that any one will maintaine so abject an esteeme of their authority, that it will not extend to resi­stence [Page 57] of private men, who should endevour the subversion of the whole frame of Government, on no other Warrant then the Kings Will and Pleasure? Must they be meerly passive? Is patience, and the deniall of their Votes to a sub­version, all the opposition they must use, if a King (which God forbid) should on his Royall pleasure send Cut-throats to destroy them as they sit in their Houses? Is all their au­thority (if the King desert them or worse) no more then to Petition, and suffer; and by a moderate use of their power of denying, dissent from being willing to be destroyed? If power of resisting by force of subverters armed by the Kings Will (for by his Authority they cannot) be unlawfull for them, all these absurdities must follow: yea, the vilest In­strument of Oppression, shewing but a Warrant from the King to beare him out, may range and rage all his dayes through a Kingdome, to waste and spoile, taxe and distraine, and at utmost of his insolence must have no more done to him by the Parliament it selfe, then to stay his hand, as the basest Servant may his Masters, or the meanest Subject the Kings owne hand; by the Doctors own confession. Consider then and admire, if any men of learning will deny this power of forcible resistence of Ministers, of subverting commands to be lawfull. I have thus far confirmed my assertion, not that I finde any openly opposing it, but because the Doctor and some other seeme to have a mind that way, and doe strike at it, though not professedly and in open dispute.

For the severall proofes brought in behalfe of Resistence, some of them prove as much as is here asserted; others are not to the purpose. Particularly, that of the Peoples rescu­ing Jonathan from his Fathers bloudy resolution proves law­fulnesse of hindering unreasonable self-destructive purposes, even in absolute Monarchies, if it prove any thing. That of Vzzal's thrusting out by the Priests, is not to the purpose: but Davids raising and keeping Forces about him, and his purpose at Keilah, proves the point directly viz. Lawfulnesse of forcible resistance 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; [Page 58] as if he were not a present Subject, because he was de­signed by Gods revealed counsell to be a future King. And he confesses Elisha's example of shutting the doore against the Kings messenger proves personall defense against sudden il­legall assaults of messengers, which is the thing in Question.

Sect 4 Let us now view the strength of what is said against resi­stence whether any thing comes home against this Asserti­on.Arguments on the contrary dissolved. The Doctors proofes from the old Testament come not to the matter: Moses, and afterwards the Kings, were of Gods particular designation, setting them absolutely over the people, on no condition or limitation; so that did they prove any thing, yet they concerne not us, respecting a Go­vernment of another nature. But particularly, that of Co­rah and the Princes rebelling against Moses, is not to the matter; it was a resistence of Moses owne Person and Of­fice; and doubtlesse penury of other proofes caused this and the rest here to be alledged: For that 1 Sam. 8 18. how in­consequent is it, to say, the people should cry unto the Lord, therefore they had no other meanes to helpe them but cries to God; though (I confesse) in that Monarchy they had not. That speech 1 Sam. 26 9. was most true there, and is as true here, but not to the purpose, being spoken of the Kings owne Person. But the maine authority brought against re­sistence, is that Rom. 13. and on that Doctor Ferne builds his whole discourse: Let us therefore something more largely consider what is deduced out of that Text. First, he suppo­ses the King to be the Supreme in Saint Peter, and the Higher power in Saint Paul. Secondly, hee collects All persons, every soule is forbidden to resist. Thirdly, that then was a stan­ding Senate, which not long before had the supreme Power in the Romane State: It is confessed; but that they could challenge more at that time when Saint Paul writ then our great Councell will or can, I deny: For that State devol­ving into Monarchy by Conquest, they were brought under an Absolute Monarchy, the Senate it selfe swearing full sub­jection to the Prince; his Edicts and Acts of Will were Lawes, and the Senates consent onely pro forma, and at plea­sure [Page 59] required. He who reads Tacitus cannot but see the Se­nate brought to a condition of basest servitude, and all Lawes and Lives depending on the will of the Prince: I wonder then the Doctor should make such a parallel. In­deed the Senate had been far more then ever our Parlia­ments were or ought to be: but now that was far lesse then our Parliament hath been, or (I hope) ever will be: They were become the sworne Vassals of an absolute Emperour, ours the sworne Subjects of a Liege or Legall Prince. Fourthly, he sayes, then was more cause of Resistence, when Kings were Enemies to Religion, and had overthrown Lawes and Liberties. I answere, There were no causes for Resi­stence: Not their enmity to Religion, had they but a legall power, because Religion then was no part of the Laws and so its violation no subversion of established government. And for the overthrow of Lawes and Liberties, that was past and done, and the government new, the Senate and all the rest actually sworne to absolute Principality: Now an Ordi­nance of absolute Monarchy was constituted, the sacred bond of an Oath had made it inviolate. But what would he inferre hence, all being granted him? Sure this he doth in­tend, That every soule among us, severall, and conjoyned in a Senate, must be subject for conscience, must not resist, un­der paine of Damnation: All this, and what ever besides he can justly infer out of that Text, we readily grant: But can any living man hence collect, that therefore no resistence may be made to fellow-subjects, executing destructive ille­gall acts of the Princes will in a legall Monarchy? Will he affirme that the Ordinance of God is resisted, and Damna­tion incurred thereby? Gods Ordinance is the Power, and the Person invested with that power; but here force is offe­red to neither as before I have made it appeare. And here­in we have B. 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 [Page 60] unlawfulnesse of Resistence of Instruments of Arbitrarinesse in this Kingdome.

Let us also consider the force of his Reasons, whether they impugne this point in hand. He sayes, such power of resi­stence would be no fit meanes of safety to a State, but prove a remedy worse then the diseases. His Reasons, first, because it doth tend to the overthrow of that order, which is the life of a Common-wealth; it would open a way to People, upon the like pretences, to resist, and even overthrow power duly administred. 2 It may proceed to a change of government. 3. It is accompanied with the evills of Civill-Warre. 4. On the same ground the two Houses proceed against the King, may the people proceed to resistence against them; accusing them not to discharge their trust. Lastly, seeing some must be trusted in every State. It is reason the highest and finall trust, should be in the highest power. These are his main reasons on which he builds his conclusion against resist­ence.

To his first, I say it were strange if resistence of distruct­ive disorder should tend to the overthrow of Order: It may for the time disturbe, as Physick while it is in working di­sturbes the naturall bodie, if the peccant humors make strong opposition: but lure it tends to health, and so doth this resist­ence of disorder to Order. Neither would it open a way for the people to violate the Powers; for doing right can open no way to the doing of wrong If any wicked seditious spi­rits should make use of the Vail of Justice to cover unnatu­rall Rebellion: Shall a peoples right and liberty be taken from them to prevent such possible abuse? Rather let the foulnesse of such pretences discover it selfe, so God and good men will abhorre them: such Cloakes of Rebellion have in former ages been taken off, and the Authors brought to just confusion, without the expence of the liberties of this King­dome.

To the second; must not Instruments be resisted, which actually intend, and seeked a chang of Government: because such resistence may proceed to a chang of Government? Is not an unlikely possibility of change to be hazarded, rather [Page 61] then a certaine one suffered? But I say, It cannot proceed to a chang of Government, unles it exceed the measure of law­full resistence: yea it is impossible, that resistence of Instru­ments should ever proceed to 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 [Page 62] but whom he assignes it to: so that the Lawes of the King­dome putting all power of force and Armes into his trust, have placed him, and all those who serve him, in a state of irresistiblenes in respect of any lawfull force. This is a point much stood on and on this ground, the Parliament now as­suming the disposing of the Militia by an Ordinance, it is complained on, as a usurping of what the Law hath commit­ted to the King as his Prerogative; The opposing of which Ordinance by a Commission of Array, was the beginning of this miserable Civill-Warre. I will distinctly lay down my Answer hereto, submitting it to every impartiall judge­ment.

Pos. 1 1. The power of the Sword being for defence of the Lawes, by punishing violators, and protecting subjects, it is subservient to Government, and must needs belong to him who is entrusted with the Government, as a necessarie requi­site without which he cannot performe his trust.

Pos. 2 2. As it is an appendix to the power of Government, and goes along with it, so it goes under the same termes: belon­ging to the Prince, as the other doth: sc. absolutely, to use at will, where the Monarchie is absolute; or with limita­tion, to use according to Law, where the Monarchy is limi­ted: so that, in this Government the Armes and sword of the Kingdome is the Kings, to a defined use committed to him; viz For defence of the Lawes and Frame of Govern­ment established, and not for arbitrary purposes, or to enable Ministers to execute commands of meer Will.

Pos. 3 3. The two Houses in virtue of the Legislative authority, in part residing in them, are interested in the preservation of Lawes and Government, as well as the King: And in case, the King should misimploy that power of Arms to strength­en subverting Instruments: Or in case the Lawes and go­vernment be in apparent danger, the King refusing to use the sword to that end of preservation for which it was com­mitted to him: I say, in this case, the two Estates may by extraordinary and temporary Ordinance assume those Armes, wherewith the King is entrusted, and performe the Kings trust: And though such Ordinance of theirs is not [Page 63] formally legall, yet it is eminently legall, justified by the ve­ry intent of the Architects of the Government, when for these uses they committed the Armes to the King. And no doubt they may command the strength of the Kingdome to save the being of the Kingdome: for none can reasonably imagine the Architectonicall Powers, when they commit­ted the power of government and Armes to one to preserve the Frame they had composed, did thereby intend to disable any, much lesse the two Estates, from preserving it, in case the King should faile to doe it in this last need. And thus doing the Kings Worke, it ought to be interpreted as done by his Will: because as the Law is his Will, so that the Law should be preserved is his Will, which he expressed when he undertooke the government: '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 [Page 64] other Government, from necessity of passive subjection in case of persecution; affirming, that the Christians in those first Persecutions, had they been strong enough, might have used Armes for defence against the Tyranny of their Empe­rours. Their ground is from the Reasons used by the Apostle Rom. 13. where he commands subjection, & forbids resistence to the higher power, because they are Gods ordinance, his Ministers for praise to well-doers, for terrour to evill doers. But I must professe my self to dissent from them in this opinion, conceiving that the Apostle in urging those Reasons drawne from the due ends of Power, doth intend to presse them to subjection by shewing them what benefit comes to men by authority in its due use; and not to shew them how far they are bound to be subject, and in what cases they may resist: For had he such a meaning at that time, when the Governours 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 [Page 65] violation of Gods ordinance. That I may give a satis­factory answere to this, which is the summe of their long discourse, I must lay it downe in severall Assertions.

First, I acknowledge Gods ordinance is not onely Power,Assert. 1 but Power for such ends, sc. the good of the People.

Secondly, it is also Gods ordinance, that there should be Assert. 2 in men, by publike consent called thereto, and invested there­in, a power to choose the meanes, the Lawes, and Rules of government conducing to that end: and a power of Judging in relation to those Lawes, who be the well doers which ought to be praised, and who the evill doers who ought to be punished. This is as fully Gods ordinance as the former; for without this the other cannot be performed.

Thirdly, when they who have this finall civill Judicature Assert. 3 shall censure good men as evill doers; or establish iniquity by a Law, to the encouragement of evill doers; in this case, if it be a subordinate Magistrate doth it, appeale must bee made (as Saint Paul did) to the supreme; if it be the supreme, which through mistake or corruption doth mis-censure, from whom there lyes no Civill Appeale, then without re­sistence of that Judgement wee must passively submit: And he who in his owne knowledge of innocency or goodnesse of his cause shall by force resist, that man erects a Tribunal in his owne heart against the Magistrates Tribunal; cleares himselfe by a private Judgement against a publike, and exe­cutes his owne sentence by force against the Magistrates sen­tence, which hee hath repealed and made void in his owne heart. In unjust Censures by the highest Magistrate, from whom there is no Appeale but to God, the sentence cannot be opposed till God reverse it to whom we have appealed: In the meane time vvee must suffer, as Christ did, notwith­standing his Appeale, 1 Pet. 2.23. and so must wee notwith­standing our Appeale, 1 Pet. 4 19. for he did so for our ex­ample. If an Appeale to God, or a censure in the Judge­ment of the condemned might give him power of resistence, none would be guilty, or submit to the Magistrates censure any further [...]hen they please. I desire those Authors, before they settle their judgement in such grounds (which I feare [Page 66] will bring too much scandall) to weigh these particulars. First, their opinion takes away from the Magistrate the chiefe part of Gods ordinance, sc. povver of definitive judge­ment of Lawes and Persons, who are the good, and who the bad, to be held so in Civill proceedings. Secondly, they ju­stifie the Conscience of Papists, Heretickes, and grossest Malefactors to resist the Magistrate, in case they be perswa­ded their cause is good. Thirdly, they draw men off from the commands of Patience under persecution, and conform­ing to Christ and his Apostles, in their patient enduring without verball or reall opposition, though Christ could not have wanted power to have done it, as he tells Peter. Fourthly, they deprive the Primitive and Moderne Mar­tyrs of the glory of suffering, imputing it either to their ig­norance or disability. Fifthly, it is a wonder, that sith in Christs and his Apostles time there was so much use of this power of resistence, they would by no expresse word shew the Christians this liberty, but condemne resistence so se­verely. Sixthly, there is in the case of the Parliament now taking up Armes no need of these offensive grounds; Religi­on being now a part of our Nationall Law, and cannot suf­fer but the Law must suffer with it.

Sect. 2 Now to the proposed Question I answere, first Negatively, sc. 1.1. When arms ought not to be assumed. It ought not to be done against all illegall proceedings, but such which are subversive and unsufferable. Secondly, not publike resistence, but in excesses inducing publike evils: for to repell private injuries of highest nature with publike hazzard and disturbance, will not quit cost, unlesse in a pri­vate case the common Liberty be strooke at. Thirdly, not when the government is actually subverted, and a new forme (though never so injuriously) set up, and the People already engaged in an Oath of absolute subjection: for the remedy comes too late, and the establishment of the new makes the former irrevocable by any justifiable power, within the compasse of that Oath of God: This was the case of the Senate of Rome in Saint Pauls time.2. When they may be assu­med. Secondly, affirmative­ly: I conceive three cases when the other Estates may law­fully [Page 67] assume the force of the Kingdome, the King not joyn­ing, or dissenting, though the same be by Law committed to him. First, when there is invasion actually made, or immi­nently feared by a forraigne Power. Secondly, when by an intestine Faction the Lawes and Frame of government are se­cretly undermined, or openly assaulted: In both these cases the Being of the Government being endangered, their trust binds, as to assist the King in securing, so to secure it by themselves, the King refusing. In extreme necessities the li­berty of Voices cannot take place, neither ought a Negative Voice to hinder in this exigence, there being no freedome of deliberation and choice, when the Question is about the last end: Their assuming the sword in these cases is for the King, whose Being (as King) depends on the Being of the King­dome; and being interpretatively his act, is no disparage­ment of his Prerogative. Thirdly, in case the Fundamen­tall Rights of either of the three Estates bee invaded by one or both the rest, the wronged may lawfully assume force for its owne defence; because else it were not free, but depen­dent on the pleasure of the other. Also the suppression of 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 [Page 68] nature, viz. such as are 'twixt subject and subject, or the King and a subject, in matter of particular right, which may be decided other way, without detriment of the publike Frame, or diminution of the priviledges of either of the three Estates. Secondly difference is to be made even in the Questions of utmost danger: First, for it may be alledged to be either from without, by invasion of forrain Enemies; or by a confederacy of intestine subverters, in which neither of the three Estates are alledged to be interessed, and so the case may be judged without relation to either of them, or detri­ment to their priviledges. Here I conceive a greater lati­tude of power may be given to some to judge without the other; for it inferres not a subordinating of any of the three to the other. Secondly, or else it may be alledged by one or two of the Estates against the other, that not contenting it selfe with the Powers allowed to it by the Lawes of the Go­vernment, it seekes to swallow up, or entrench on the privi­ledges of the other, either by immediate endevours, or else by protecting and interessing it selfe in the subversive plots of other men. Thirdly, in this case wee must also distinguish betwixt, first, authority of raising Forces for defense against such subversion, being knowne and evident: secondly and authority of judging and finall determining, that the accu­sed Estate is guilty of such designe and endevour of subver­sion, when it is denied and protested against. This last is the particular in this Question to be considered; not whether the People are bound to obey the authority of two, or one of the Legislative Estates in resisting the subversive assaies of the other, being apparent and self-evident; which I take in this Treatise to be cleare. But when such plea of subversi­on is more obscure and questionable, which of the three Estates hath the power of ultime and supreme judicature by Vote or sentence to determine it against the other; so that the People are bound to rest in that determination, and ac­cordingly to give their assistance, eo nomine, because it is by such Power so noted and declared?Determinati­on of the Question.

For my part in so great a cause, if my earnest desire of pub­lique good, and peace, may justifie me to deliver my minde, [Page 69] I will prescribe to the uery Question: for it includes a sole­cisme in government of a mixt temperature: To demand which Estate may challenge this power of finall determina­tion of Fundamentall controversies arising betwixt them is to demand which of them shall be absolute: For I conceive that in the first part hereof, I have made it good, that this fi­nall utmost controversie arising betwixt the three Legisla­tive Estates, can have no legall, constituted Judge in a mixed government: for in such difference, he who affirmes that the people are bound to follow the Judgement of the King a­gainst that of the Parliament, destroyes the mixture into absolutenesse: And he who affirmes that they are bound to cleave to the Judgement of the two Houses against that of the King, resolves the Monarchie into an Aristocracie, or Democracie, according as he places this finall Judgement. Whereas I take it to be an evident truth, that in a mixed go­vernment no power is to be attributed to either Estate, which directly, or by necessary consequence, destroyes the liberty of the other.

Yet it is strange to see, how in this Epidemicall division of Sect. 2 the Kingdome, the Abettors of both parts claime this un­concessible Judgement. But let us leave both sides, pleading for that which we can grant neither, and weigh the strength of their Arguments.

First, Dr. Ferne layes downe two reasons,Dissolution of Arguments placing it in the King. why this finall Judgement should belong to the 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 [Page 70] with it: for to intend a mixed government, and yet to settle the last resolution of all judgement in one, is to contra­dict their very intention. Neither in a constituted govern­ment must we dispose of powers according to the guesse of our reason; for mens apprehensions are various; The Dr. thinkes this power fittest for the King: His answerers judge it fittest for the two Houses, and give their reasons for it too. Powers must there reside, where they are de facto by the Ar­chitects of a government placed: he who can bring a funda­mentall Act stating this power in any, saies something to the matter: but to give our conjectures, where it should be, is but to provide fuell for contention.

Dissolution of the [...]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 [Page 71] all the people are to be led by it and submit to it as their pub­lique reason and Judgement.

I answer, If by state, he meane the whole Kingdome: I say, the reason of the two Houses divided from the King, is not the reason of the Kingdome, for it is not the Kings rea­son, who is the head and chiefe in the Kingdome. If by state be meant the people, then it must be granted, that as farre forth as they represent them, their reason is to be accounted the reason of the Kingdome: and doth binde so farre forth as the publique reason of the Kingdome can binde after they have restrained their reason and will to a condition of sub­jection: so that put case it be the reason of the state, yet not the same which first gave this Government its being: for then it was the reason of a State, yet free and to use their reason and Judgement in ordaining a Government: but now the reason of a State bound by Oath to a Government, and not at liberty to resolve againe: Or to assume a supreme pow­er of judging, distructive to the frame of Government they have established, and restrained themselves unto Their rea­son is ours, so farre as they are an ordained representative body: But I have before demonstrated, that in this frame, the Houses could not be ordained a legall Tribunall to passe Judgement in this last case: for then the Architects by gi­ving them that Judicature, had subordinated the King to them, and so had constituted no Monarchie. 2. He argues, the Parliament being the Court of supreme Judicature and the Kings great and highest Councell, therefore that is not to be denied to it, which inferiour Courts ordinarily have power to do, viz To judge matters of right betweene the King and Subject: Yea, in the highest case of all: The Kings power to tax the subject in case of danger, and his be­ing sole Judge of that danger, was brought to cognizance, and passed by the Judges in the Exchequor. I answer, 1. There is not the same reason betwixt the Parliament & other courts. In these [...]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 [Page 72] by his owne sentence: But in Parliament the King and Peo­ple are Judges, and that not by an authority derived from him, but originally invested in themselves. So that when the two Estates judge without him in any case not prejudged by him, it cannot be called his Judgement, (as that of the other Courts, being done by his authority) and if he be bound by any Judgment of the two Estates without him, he is bound by an externall power which is not his owne; that is, he is subordinated to another power in the State where he is supreme; which is contradictory. Secondly, in other Courts, if any case of right be judged 'twixt him and the subject, they are cases of particular Rights which diminish not Royalty if determined against him. Or if they passe cases of generall right, (as they did in that of Ship-money) it is but declaratively to shew what is by Law due to one and the other: yet their Judgement is revocable, and liable to a repeale by a superiour Court, as that was by Parliament. But if the Kings Prerogatives should be subjected to the Judgement of the two Estates, the King dissenting, then he should be subject to a sentence in the highest Court, and so irremediable; a Judicatory should be set up to determine of his highest Rights without him, from which he could have no remedy. Thus maine causes may bee alledged, why, though other Courts doe judge his Rights, yet the two Estates in Parliament (without him) cannot: and it is from no defect in their power, but rather from the eminency of it, that they cannot. If one deputed by common consent of three, doth by the power they have given them determine controversies betweene those three, it is not for either of them to challenge right to judge those cases, because one who is inferiour to them doth it. Indeed if the power of the two Houses were a deputed power, as the power of other Courts is, this Argument were of good strength: but they being concurrents in a supreme Court by a power originally their owne, I conceive it hard to put the power of finall Judgement in all controversies 'twixt Him and them exclu­sively, or solely into their hands.

[Page 73]If it be demanded then, how this cause can be decided?Sect. 3 and which way must the People turne in such a contention?What be done in such a Contention? I answere, If the non-decision be tolerable, it must remaine undecided, whiles the Principle of legall decision is thus di­vided, and by that division each suspends the others power. If it be such as is destructive, and necessitates a determinati­on, this must be made evident; and then every Person must aide that Part, which in his best Reason and Judgement stands for publike good, against the destructive. And the Lawes and Government which he stands for, and is sworne to justifies and beares him out in it, yea; bindes him to it. If any wonder I should justifie a power in the two Houses to resist, and command aide against any Agents of destructive commands of the King, and yet not allow them power of judging when those Agents or commands are destructive. I answere, I doe not simply deny them power of judging and declaring this; but I deny them to be a legall Court ordained to judge of this case authoritatively, so as to bind all People to receive and rest in their judgement for conscience of its authority, and because they have Voted it: '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 [Page 74] peruse the same) set downe what I verily conceive to be the truth concerning those high matters, first of Monarchy in generall, and then of this of England, and have given my de­termination concerning all the weighty Questions which 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 [Page 75] or unlawfulnesse of this Warre, the course is not to cry it downe indefinitely, as a Resistence of Gods ordinance, nor of the higher Power: Nor to justifie it, because the cause stood for is Religion, and expurgation of in-crept cor­ruptions in Church and State: For all standing for Religion and Reformation is not a justifiable cause to take up Armes; we having proved it before, that in this Kingdome nothing can warrant it, but apparent danger from destructive Coun­sellours and Instruments. Neither is it enough to demand, as Doctor Ferne doth Sect 6. Who were first in Armes? for the other part will by their Almanack finde Armes and Forces gathered and employed before those in Hull:Declar. of the Lords and Commons of Apr 3. 1642. but that is not the resolving enquiry; it may fall out the defensive part may be first in Armes, to prevent the ruine of counsells and Plots which are apparently contrived, but not executed. The re­solving enquiry (I thinke) must be, Whether at the Parliaments taking up of Armes, the Common-wealth, Frame of established Go­vernment, or (which is all one) the Being and radicall Powers of Parliament were in apparent danger of subversion? For if so, then the Armes and Force used against the Counsellours or Agents thereof is proved lawfull by all the precedent dis­course.

Now it will be alledged, and is in part acknowledged,His Majesties Answ. to the Petit. of the houses March 26. 1642. that there was a grand intention and plot of altering the Govern­ment of this Kingdome, and reducing it to an arbitrary way. They will not say his Majestie was conscious of it; but it was aimed at by many about him, and in power with him, whom it concerned to have him absolute: By these men he was told that such things were Law, which if they had bin so, then he had bin absolute by law. They will instance in the long and purposed disuse of Parliaments: The arbitrary Taxes and Impositions on most of the Commodities of the Kingdome: The encroachnent of the Arbitrary Courts up­on the Legall: The Imposition of Ship-money: And the Judges opinion that the King had power to tax the subject in times of danger, and that he is the sole Judge of that dan­ger: The raising an Army, and forcing the subject to furnish the same with Coat and Conduct-money. The intention of [Page 76] bringing up the Army, to subvert, or at best, to awe and con­fine the Parliament to bounds of proceeding of their owne setting. All this before or upon the beginning of the Parli­ament. Then the evidences and proofes against the Earle of Strafford, His Majesties comming with the terror of such an attendance into the House of Commons, to demand such a number of Members. Here is a succession of designes, all before the least shew of resistence: for his Majesties com­ming to the House was Iannuary 4. 1641. And the first Peti­tion to his Majestie about the Militia was not till the 26. of the same: And their resolution to settle it by themselves, His Majesties refusing was not till March 1. And among all these there is not one but tends to destroy the frame of Go­vernment. Not that every one who had a hand in them did aime at such a destruction; but looking on the designe it selfe (and we must judge of mens intentions by the nature of their Counsells and enterprizes,) every one of them strikes at the foundation of this legall frame, and tends to the introducti­on of Absolutenesse and Arbitrarinesse in the Soveraigne.

I acknowledge, that since that time, there is a Plea on both sides of danger of subversion: The King withdrew from London: and oft affirmes that He was driven thence, and could no longer remaine in safety: And the two Houses on the former designes plead a danger of subversion from evill Counsellours. Both sides now complaine of danger, and have taken up Armes to repell that danger: but these com­plaints of danger, and taking up of Armes by both sides, was all since the succession of those fore-recited plots. I know what hath been intended or done since the taking of Armes may be all affirmed to be for defense against danger; the withdrawment of so many Members of both Houses, the acts of hostility on both sides, the taxing, spoyling, and un­doing of thousands of innocent people, all must be excused by necessity of Warre, and self-defense. But what can be said for all those Plots and Essaies, which were the Parlia­ments first grounds of Feares and Forces? Were they remo­ved before they tooke up Armes, and so their assuming them made causlesse and inexcusable? You will say, Those were [Page 77] the Plots of men in grace and authority about His Majesty, and that the illegality of those proceedings being made knowne to him, He disclaimes them professing solemnly he hath no intent but to governe by Law; and acknowledges that the Law is the measure of his power. But they doe tell you, That they object nothing 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 [Page 78] my 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 onely 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 [Page 79] assuming 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.