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Battle Joined 1640-1648 - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 1 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1.
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Battle Joined 1640-1648
Henry Parker, The Case of Shipmoney
[Henry Parker, 1604-1652]
The Case of
ACCORDING TO THE
Grounds of Law, Policy,
PRESENTED TO THE
Censure and Correction of the High Court of Parliament, Nov. 3. 1640.
Printed Anno Dom. 1640.
Henry Parker, one of the most prolific writers in the cause of Parliament in the civil war era, has also been dubbed the clearest and most realistic. A graduate of St. Edmund Hall, Oxford, he was called to the bar at Lincoln’s Inn in 1637. Parker quickly put his talents to work in support of the Presbyterian, and later the Independent, opponents of the Crown. During the civil war and Interregnum Parker held a series of important posts for Parliament. He served as secretary to Parliament’s army under the Earl of Essex, then in 1645 as secretary to the House of Commons where he prepared various declarations, and finally as secretary to Cromwell’s army in Ireland. He died in Ireland late in 1652, aged forty-eight.
Parker was renowned among his contemporaries and is recognized among modern historians as one of Parliament’s most important theorists. His first published tract, the anonymous “The Case of Shipmony Briefly Discoursed” reprinted here, was prepared for presentation to the Long Parliament on the day it convened. Three editions appeared. It is not only a vigorous denunciation of a levy widely condemned as an abuse of the royal prerogative but underlines for us the grave constitutional threat contemporaries saw in shipmoney itself and, even more, in the legal reasoning with which the royal judges had upheld it. With crystal clarity Parker forges the link between political grievance and constitutional menace. The Long Parliament went on to outlaw shipmoney.
The Case of Ship-Money Briefly Discoursed.
Great Fires happening in Townes or Cities, are sometimes the cause that other contiguous houses are spoiled and demolisht, besides those which the flame itselfe seizes. So now, in the case of Shipmoney, not only the judgement itselfe which hath been given against the subject, doth make a great gap and breach in the rights and Franchises of England, but the arguments and pleadings also, which conduced to that judgement, have extended the mischiefe further, and scarce left anything unviolated. Such strange contradiction there hath been amongst the pleaders, and dissent amongst the Judges, even in those Lawes which are most fundamentall, that we are left in a more confused uncertainty of our highest priviledges, and those customes which are most essentiall to Freedome, than we were before. To introduce the legality of the Ship-scot,1 such a prerogative hath been maintained, as destroyes altogether Law, and is incompatible with popular liberty: and such Art hath been used to deny, traverse, avoid, or frustrate the true force, or meaning of all our Lawes and Charters, that if wee grant Ship-money upon these grounds, with Ship-money wee grant all besides. To remove therefore this uncertainty, which is the mother of all injustice, confusion, and publicke dissention, it is most requisite that this grand Councell and Treshault Court2 (of which none ought to thinke dishonourably) would take these Arduis Regni, these weighty and dangerous difficulties, into serious debate, and solemnly end that strife, which no other place of Judicature can so effectually extinguish.
That the King ought to have aid of his subjects in times of danger, and common aid in case of common danger, is laid downe for a ground, and agreed upon by all sides. But about this aid there remaines much variety and contrariety of opinion amongst the greatest Sages of our Law; and the principall points therein controverted, are these foure: First, by what Law the King may compell aid. Secondly, when it is to bee levied. Thirdly, how it is to bee levied. Fourthly, what kinde of aid it must be.
1. Some of the Judges argue from the Law of Nature, that since the King is head, and bound to protect, therefore he must have wherewithall to protect: but this proves only that which no man denies. The next Law insisted upon, is Prerogative; but it is not punctually explained what Prerogative, whether the Prerogative naturall of all Kings, or the Prerogative legall of the Kings of England. Some of the Judges urge, that by Law there is naturall allegeance due to the King from the subject, and it doth not stand with that allegeance that our Princes cannot compell aid, but must require the common consent therein. Others presse, that the Law hath setled a property of goods in the subject, and it doth not stand with that property, that the King may demand them without consent. Some take it for granted, that by Royall prerogative, as it is part of the Lawes of England, the King may charge the Nation without publick consent; and therefore it being part of the Law, it is no invasion upon Law. Others take it for granted, that to levie money without consent, is unjust, and that the King’s prerogative cannot extend to any unjust thing. So many contrary points of warre doe our Trumpets sound at once, and in such confusion doe our Judges leave us, whilest either side takes that for granted, which by the other is utterly denied. By these grounds Royall prerogative, and popular liberty may seeme things irreconcileable, though indeed they are not; neither doth either side in words affirme so much, though their proofes bee so contradictory. King Charles his Maxime is, that the people’s liberty strengthen the King’s prerogative, and the King’s prerogative is to maintaine the people’s liberty; and by this it seemes that both are compatible, and that prerogative is the more subordinate of the two. The King’s words also since have been upon another occasion, That he ever intended his people should enjoy property of goods, and liberty of persons, holding no King so great, as he that was King of a rich and free people: and if they had not property of goods, and liberty of persons, they could bee neither rich nor free. Here we see, that the liberty of the subject is a thing which makes a King great; and that the King’s prerogative hath only for its ends to maintaine the people’s liberty. Wherefore it is manifest, that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people’s good and profit will beare, not what liberty the King’s absolutenes or prerogative may admit: and in this dispute it is more just that wee appeale to written lawes, than to the breasts of Kings themselves. For we know Nationall lawes are made by consent of Prince and people both, and so cannot bee conceived to be prejudiciall to either side; but where the meere will of the Prince is law, or where some few Ministers of his, may alledge what they will for law in his behalfe, no mediocrity or justice is to be expected. We all know that no slave or villaine, can be subjected to more miserable bondage than to be left meerly to his Lord’s absolute discretion: and wee all see that the thraldome of such is most grievous, which have no bounds set to their Lord’s discretion. Let us then see what Fortescue writes, not regard what Court dependents doe interpret, and his words are for 84. Cap. 36. Rex Anglia nec per se nec per suos Ministros Tollagia subsidia aut quavis onera alta imponit legis suis, aut leges corum mutat, aut nova condit sine concessione vel assensu totius regni sui in Parliamento sui expresso.3 These words are full, and generall, and plaine, and in direct affirmance of the ancient Law and usage of England, and it is not sufficient for the King’s Counsell to say that these words extend not to Ship-money: for if there were any doubt, the interpretation ought rather to favour liberty, than prerogative.
It is not sufficient for Judge Jones to say that it is proprium quarto modo4 to a King, and an inseparable naturall prerogative of the Crowne to raise monies without assent, unlesse he first prove that such prerogative bee good and profitable for the people, and such as the people cannot subsist at all without it: nay such as no Nation can subsist without it. This word Prerogative has divers acceptions: sometimes it is taken for the altitude of Honour, sometimes for the latitude of Power. So wee say the prerogative of an Emperour is greater, than that of a King and that of a King, greater than that of a Duke, or petty Potentate: and yet of Kings we say that the King of Denmarke has not so great a Prerogative as the King of England, nor the King of England, as the King of France, &c. For here though their honor and title be the same, yet their power is not. Sometimes Prerogative signifies as much as Soveraignty, and in this generall consideration, wee say, that all supreame commanders are equall, and that they all have this essentiall inseparable Prerogative, that their power ought to be ample enough for the perfection, and good of the people, and no ampler: because the supreame of all human lawes is salus populi. To this law all lawes almost stoope, God dispences with many of his lawes, rather than salus populi shall bee endangered, and that iron law which wee call necessity itselfe, is but subservient to this law: for rather than a Nation shall perish, any thing shall be held necessary, and legal by necessity. But to come to the Prerogative of England, and to speake of it in generall, and comparatively; wee say it is a harmonious composure of policy, scarce to be parralled in all the world, it is neither so boundlesse as to oppresse the people in unjust things, nor so straite as to disable the King in just thinges. By the true fundamentall constitutions of England, the beame hangs even between the King and the Subject: the King’s power doth not tread under foot the people’s liberty, nor the people’s liberty the King’s power. All other Countries almost in Christendome, differ from us in this module of policy: some, but very few, allow a greater sphere of Soveraignty to their Princes; but for the most part now adays the world is given to republists, or to conditionate and restrained forms of government. Howsoever wee ought not to condemne any Nation as unjust herein, though differing from us; for though they seem perhaps very unpolitick, yet it is hard to bee affirmed that God and Nature ever ordained the same method of rule, or scope of royalty to all States whatsoever. Besides what dislike soever wee take at other regiments, yet except it bee in very great excesses or defects, wee must not thinke change always necessary, since custome in those great and generall points obtaines the force of another nature & nature is not to be changed. Divines of late have been much to blame here in preaching one universall forme of government as necessary to all Nations, and that not the moderate, & equall neither, but such as ascribes all to Soveraignty, nothing at all to popular libertie. Some Lawyers also and Statesmen have deserved as ill of late, partly by suggesting that our English lawes are too injurious to our King; and partly by informing, that this King is more limited by law than his Progenitors were, & that till hee be as the King of France is Rex Asinorum,5 hee is but a subject to his subjects, and as a Minor under the command of guardians: but what hath ensued out of the King’s jealousy of his subjects, and overstraining his prerogative? Nothing but irreparable losse, and mischiefe both to King and Commonwealth. And indeed the often and great defections, and insurrections, which have happened of late, almost all over Europe,6 may suffice to warne all wise Princes, not to overstrain their Prerogatives too high; nor to give care to such Counsellors as some of our Judges are, who affirme our King’s Prerogative to be in all points unalterable, and by consequence not depending upon law at all. By an other exception of this word Prerogative in England, we mean such law here establisht as gives the King such and such preeminences, and priviledges: before any subject, such as are not essentiall to royalty, but may be annulled by the same power, by which they were created. That a King shall defend and maintaine his subjects, is a duty belonging to the Office, not a priviledge belonging to the Crowne of a King; this obligation nature lays upon him, and no other power can dissolve it. Also that subjects shall afforde aide, and joine with their Princes in common defence, is a duty arising from the allegiance of the people, and not an honor redounding only to the Prince; nature’s law hath made this a tie not to be changed, or infringed: for that which is annexed by an eternall superiour power cannot be made severable, by a temporall human power. But that such an Emperour, King or Potentate, shall have such or such aid, and compell it by such or such meanes, at such or such times, as to the particular modes and circumstances of his aid, particular municipall Lawes must direct; and these it would be as dangerous to alter, as it is absurd to hold unalterable. In a Parliament held by King James, it was debated, whether or no Tenures in Capite,7 and allowance of Perveyors8 might bee repealed and divided from the Crowne; and it was held that by no Act or Statute they could bee taken away, because they were naturally inherent to the Crowne.
This resolution seemes very strange to me, since the Law of Tenures and Purveyors is not so naturall and essentiall to Monarchy, that it cannot or may not subsist without it. For if in other Countries it bee held a meere politicall way, perhaps an inconvenient thing, then why may not the Prince’s Royalty, and the people’s safety bee preserved intire without it in England? And if so, then why shall not the same authority have vigor to repeale it, which wanted not vigor to inforce it? I cannot conceive that the Parliament herein reflected upon what was formall in Law to bee done, but rather upon what was convenient. Such insignia suprema Majestatis as these, I doe not hold it fit to bee dismembred from the Crowne in policie; I only hold it a thing possible in Law, nay though the King enjoy divers such like prerogatives more, as J. Jones thinkes, than any Prince in Christendome, yet should not I desire or advise to plucke away one the least Flower out of the Regal Garland, nor would it be (perhaps) profitable for the State, to suffer the least diminution thereof. Wee know also, that in England the prerogative hath been bound in many cases, by Statute-Law, and restrained of divers such priviledges as were not essentiall, but meerly politicall. Nullum tempus occurrit Regi:9 This was one of the English Royalties, and very beneficiall many wayes; yet wee know this is in divers cases limited by Act of Parliament, and that very justly, as J. Hutton argues. The great and ancient Tax of Dangelt, it was a Subsidie taken by the Kings of England, for the common defence of the Kingdome; yet this was first released by King Stephen, and after abolished for ever by the Statutes of Edward the first: and there is no reason why an Act of Parliament should not bee as valid in our case, as it was in that. Wherefore it is to bee admired, that J. Jones should account this way of aid by Ship-money, or any other, without publicke consent, to bee Proprium quarto modo10 to the Kings of England, and so unrepealeable, since our Kings have in all ages, done such noble acts without it; and not only defended, but also enlarged their dominions. The last kinde of acception of this word Prerogative, is improper. Thus to pardon malefactors, to dispence with penall Lawes, to grant Non obstantes, to bee free from attainders, to call or discontinue, to prorogue or dissolve Parliaments, &c. are not truely and properly called Prerogatives: these all in some sense may bee called Munities, or indemnities, belonging to the sacred person of the King, as hee is inviolable, and subject to no force and compulsion of any other. And as he is the soule of Law, in whose power alone it is to execute Law, and yet not to bee constrained thereto. To grant a pardon to some malefactors for some crimes, may perhaps bee as heinous as to commit them; and that which drawes a guilt upon the King, cannot bee said to bee his priviledge. If it might bee tearmed a Royalty, that the King is not questionable, or punishable, or to bee forced in such acts as tend to the obstruction of justice, it might as well be so tearmed in acts tending to the transgression of Law: for in both hee is alike free from any coercive, or vindicative force. For it is out of necessity, not honour, or benefit, that the King hath a freedome from constraint, or restraint in these cases; and that this freedome is inseparable, because no force can be used but by superiours, or equals, and hee which hath either superiors or equals, is no King. If a King should shut up the Courts or ordinary Justice, and prohibit all pleadings and proceedings betwixt man and man, and refuse to authorise Judges for the determining of suits, hee would bee held to doe a most unkingly thing: and yet this may be as truly called a Prerogative, as to disuse and dissolve Parliaments. But it may bee objected, that the King besides such negative priviledge and freedome from force, hath also a positive of seizing subjects’ lands, &c. in divers cases, as in making Bulwarkes upon any man’s land for common defence &c. To this it may be answered, That to such power the King is not intitled by his Prerogative, nor is it any benefite to him, necessitie herein is his only warrant: for either this private inconvenience must happen, or a publick ruine follow and in nature the lesse and private evill is to bee chosen: and here the party trespassed, enjoyes safety by it, and shall after receive satisfaction for his detriment. Were there such apparant unavoidable necessity in the Ship-scot, that either that course must bee taken, or the community inevitably perish, or were the King wholly disinterested in point of profit, or were there hope of restitution, it could not bee without consent, and so not against Law. So then, for ought that is yet alledged, Prerogative, except that which is essentiall to all Kings, without which they cannot bee Kings, is alterable, and it ought to be deduced out of the written and knowne Lawes of the Kingdome, and Law is not to be inferred out of that; wee ought not to presume a Prerogative, and thence conclude it to be Law, but we ought to cite the Law, and thence prove it to be Prerogative. To descend then to our owne Lawes, yet there our Judges vary too. What the Common Law was in this point is doubted by some, and some say if the Common Law did allow the King such a prerogative to lay a generall charge without consent, then Statutes cannot alter it.
Some doe not except against the force of Statute Law, but avoid our particular Statutes by divers several evasive answers. Some say our Great Charter was but a grant of the King, extorted by force; some except against the 25. of Ed. I. because there is a salvo in it; some against the 34. of Ed. I. as made in the King’s absence; some object against the 14. of Ed. 3. as if it were temporary, and because it is not particularly recited in the Petition of Right. And the common evasion of all beneficiall Statutes, and of the Petition of right, is, that they binde the King from imposing pecuniary charges for the replenishing of his owne coffers, but not from imposing such personall services, as this Ship-scot is, in time of danger and necessity. J. Crawly maintains this Ship-scot to bee good by Prerogative at the Common Law, and not to be altered by Statute. What the Common Law was, this Court can best determine; but it is obvious to all men, that no Prerogative can be at the Common Law, but it had some beginning, and that must bee from either King or Subject, or both: and in this, it is not superiour to our Statute Law, and by consequence not unalterable. The Medes and Persians had a Law, that no Law once past, should ever bee repealed; but doubtlesse this Law being repealed first, all others might after suffer the same alteration, and it is most absurd to think that this Law might not bee repealed by the same authority by which it was at first enacted. J. Jones sayes, our Statutes restraine tollages in generall termes, and cites divers cases, that a speciall interest shall not passe from the King, but in special termes. But his cases are put of private grantees, over whom the King ought to retaine a great preheminence: but the Law is, that where the whole state is grantee, that grant shall have the force of a Statute, because it is pro bono publico, and because the whole state is in value and dignity as much to be preferred before the King, as the King is before any private grantee. But J. Jones sayes further, if generall words shall extend to these extraordinary publick levies, then they may as well extend to his ordinary private rights, and intradoes, & so cut off Aide pur faire filz Chivaleir, &c. The contrary hereof is manifest, for the intent of all our Statutes is to defend the subject against such publick tollages and impositions, as every man is equally liable to, and as are not due in Law otherwise, or recoverable by ordinary action. Now these aides, &c. and the King’s ordinary revenues and services, are not such as are due from every man, but recoverable by ordinary action. Howsoever in all these doubts the Law would now bee made cleare, and not only the vertue of Statutes in generall, but also the true meaning of our particular Charters would be vindicated from all these exceptions.
2. I come now to our second difficulty, when a publicke charge may bee laid. Here the favourers of Ship-money yet agree, that the King may not charge the subject meerly to fill his owne coffers, or annually, or when he will invade a forraigne enemy, or when Pirates rob, or burn Townes and Burroughs, for these ordinary defence is sufficient: and when there is imminent and eminent danger of publick invasion, we agree that the subject may be charged.
The Quaere then is, whether the King bee sole Judge of the danger, and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned. J. Crooke proves the contrary thus: If danger, sayes he, be far distant, if it be in report only of French armadoes, and Spanish preparations, &c. though it bee certaine, and not pretensive, yet Parliamentary Aid may be speedy enough: and if it be imminent, then this way of Ship-scot will not bee speedy enough; for either the designe is really to have new Ships built, and that will require longer time than a Parliament; or else money only is aimed at, whereby to arme other Ships, and for this the Law hath provided a more expedite way than by Ship-scot, in case of imminent danger.
If then the King have power to presse all men’s persons and ships, and all are bound exponere se, & sua,11 and to serve propriis sumptibus,12 when imminent danger is, and this defence hath alwayes beene held effectuall enough, it is consequent that if hee be not destitute of competent Aid in present distresses, he cannot pretend a greater necessity in dangers more remote, when they are but suspected or perhaps pretended only.
My Lord Bramston sayes here, that there is a necessity of preventing a necessity: and that the Sea is part of the Kingdome, and therefore of necessity to bee guarded as the kingdome. The answer is, That the safety of the Kingdome does not necessarily depend upon the Ship-scot, and so this necessity being removed, the necessity grounded upon this, falls off of itselfe. For if the Kingdome may escape ruine at hand when it is a storme, without Ship-money, it may much more escape it afar off, being but a cloud. But grant the Sea to be a part of the Kingdome to some purposes, yet how is it a part essentiall, or equally valuable, or how does it appeare that the fate of the Land depends wholly upon the dominion of the Sea? France subsists now without the regiment of the Sea, and why may not we as well want the same? If England quite spend itselfe, and poure out all its treasure to preserve the Seigniory of the Seas, it is not certaine to exceed the Navall force of France, Spaine, Holland, &c. And if it content itselfe with its ancient strength of shipping, it may remaine as safe as it hath formerly done. Nay I cannot see that either necessity of ruine, or necessity of dishonour can bee truly pretended out of this, that France, Spaine, Holland, &c. are too potent at Sea for us.
The dominion of the seas may be considered as a meer right, or as an honour, or as a profit to us. As a right it is a theme fitter for schollers to whet their wits upon, than for Christians to fight and spill bloud about: and since it doth not manifestly appeare, how or when it was first purchased, or by what law conveyed to us, wee take notice of it only as matter of wit and disputation. As it is an honour to bee masters of the sea, and to make others strike saile to us as they passe; it’s a glory fitter for women and children to wonder at; than for Statesmen to contend about. It may bee compared to a chaplet of flowers, not to a diadem of gold: but as it is a profit to us to fence and inclose the sea, that our neighbours shall not surprise us unawares, it’s matter of moment, yet it concernes us but as it doth other Nations. By too insolent contestations hereupon, wee may provoke God, and dishonour ourselves; we may more probably incense our friends, than quell our enemies, wee may make the land a slave to the sea, rather than the sea a servant to the land. But I pray Master Selden to pardon me for this transition, and I returne my matter. If the Kingdome could not possibly subsist without Ship-money in such a danger, yet there is no necessity that the King should be so sole Judge of that danger, as that he may judge therein contrary to the opinion, and perhaps knowledge of other men. I allow the King to be supreame, and consequently sole Judge in all cases whatsoever, as to the right, and as to the diffusion of Judgement; but as to the exercise, and restraint of judgment, he is not, nor ought not to be accounted sole Judge. In matters of Law the King must create Judges, and swear them to judge uprightly, and impartially, and for the subject against himself, if law so require; yea though hee bee of contrary judgement himselfe, and by his Letters sollicite the contrary. The King’s power is as the disgestive faculty in nature, all parts of the body contribute heat to it for their owne benefit, that they may receive backe againe from it a better concocted and prepared supply of nourishment, as it is their office to contribute, so it is the stomacke’s to distribute.
And questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will: if he say only, Datum est nobis intelligi,13 as he does in this Writ, &c. To his sole indisputable judgement it is left to lay charges as often and as great as he pleases. And by this meanes, if he regard not his word more than his profit, hee may in one yeare draine all the Kingdome of all its treasure, and leave us the most despicable slaves in the whole world.
It is ridiculous also to alledge, as J. Jones does, that it is contrary to presumption of Law to suspect falsity in the King: for if Law presume that the King will not falsly pretend danger to vexe his subjects, of his owne meere motion, yet no Law nor reason nor policy will presume, that the King may not be induced by misinformation to grieve the people without cause. The Sunne is not more visible than this truth, our best Kings, King Charles, King James, Queene Elizabeth, and all the whole ascending line, have done undue illegall things at some times, contrary to the rights and Franchises of England, being misinformed, but having consulted with the Judges, or States in Parliament, they have all retracted, and confessed their error. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made? and if Lawes are frustrate and absurd, wherein doe we differ in condition from the most abject of all bondslaves?
There is no Tyranny more abhorred than that which hath a controlling power over all Law, and knowes no bounds but its owne will: if this be not the utmost of Tyranny, the Turkes are not more servile than we are and if this be Tyranny, this invention of ship-money makes us as servile as the Turkes. We must of necessity admit, that our Princes are not to be misse-led, and then our Lawes are needlesse; or that they may be misse-led, and then our Lawes are useless. For if they will listen to ill counsell, they may be moved to pretend danger causlesly; and by this pretence defeate all our lawes and liberties, and those being defeated, what doth the English hold, but at the King’s meere discretion, wherein doth he excell the Captive’s condition? If we shall examine why the Mohametan slaves are more miserably treated, than the Germans, or why the French Pesants are so beggarly, wretched, and beastially used more than the Hollanders, or why the people of Milan, Naples, Sicily are more oppressed, trampled upon, and inthralled than the Natives of Spaine? there is no other reason will appeare but that they are subject to more immoderate power, and have lesse benefit of law to releeve them.
In nature there is no reason, why the meanest wretches should not enjoy freedome, and demand justice in as ample measure, as those whom law hath provided for: or why Lords which are above law should bee more cruell than those which are more conditionate. Yet we see it is a fatall kind of necessity only incident to immoderate power, that it must be immoderately used: and certainly this was well known to our ancestors, or else they would not have purchased their charters of freedome with so great an expence of bloud as they did, and have endured so much so many yeares, rather than to bee betrayed to immoderate power, and prerogative. Let us therefore not bee too carelesse of that, which they were so jealous of, but let us look narrowly into the true consequence of this ship-scot, whatsoever the face of it appeare to be. It is vaine to stop twenty leakes in a ship, and then to leave one open, or to make lawes for the restraint of royalty all other ways, that it may not overflow the estates of the Commonalty at pleasure, and yet to leave one great breach for its irruption.
All our Kings hitherto have been so circumscribed by law, that they could not command the goods of their subjects at pleasure without common consent. But now if the King bee but perswaded to pretend danger, hee is uncontroleable Master of all we have, one datum est intelligi, shall make our English Statutes like the politick hedge of Goteham, and no better. I doe not say that this King will falsifie, it is enough that we all, and all that we have are at his discretion if he will falsifie, though vast power be not abused, yet it is a great mischiefe that it may, and therefore vast power itselfe is justly odious, for divers reasons. First, because it may fall into the hands of ill disposed Princes, such as were King John, Henry the third, Edward the second, Richard the second. These all in their times made England miserable, and certainly had their power beene more unconfineable, they had made it more miserable. The alterations of times doe not depend upon the alteration of the people, but of Princes: when Princes are good it fares well with the people, when bad ill. Princes often vary, but the people is always the same in all ages, and capable of small, or no variations. If Princes would endure to heare this truth it would bee profitable for them, for flatterers always raise jealousies against the people; but the truth is, the people as the sea have no turbulent motion of their owne, if Princes like the windes doe not raise them into rage. Secondly, vast power if it finde not bad Princes it often made Princes bad. It hath often changed Princes, as it did Nero from good to bad, from bad to worse: but Vespasian is the only noted man which by the Empire was in melius mutatus: daily experience teaches this. Dangelt in England within twenty yeares increased to a fourefold proportion.
Subsidies were in former times seldome granted, and few at a time, now Parliaments are held by some to bee of no other use than to grant them. The Fox in Aesop observed that of all the beasts which had gone to visite the Lion, few of their footesteps were to be seene retrorsum: they were all printed Adversum. And we finde at this day that it is farre more easie for a King to gaine undue things from the people, than it is for the people to regaine its due from the King. This King hath larger dominions, and hath raigned yet fewer yeares and enjoyed quieter times than Queen Elizabeth; and yet his taxations have been farre greater, and his exploits lesse honorable, and the people is still held in more jealousy. To deny ship-money which sweeps all, is held a rejection of naturall allegiance. I speake not this to render odious the King’s blessed government, I hold him one of the mildest, and most gracious of our Kings; and I instance in him the rather, that wee may see, what a bewitching thing flattery is, when it touches upon this string of unlimitable power. If this ambition and desire of vast power were not the most naturall and forcible of all sinnes, Angels in heaven, and man in Paradise had not fallen by it; but since it is, Princes themselves ought to be more cautious of it. Thirdly, vast power if it neither finde nor make bad Princes, yet it makes the good government of good Princes the lesse pleasing, and the lesse effectuall, for publick good: and therefore it is a rule both in law and policy, and nature, Non recurrendum est ad extraordinaria, in iis quae fieri possunt per ordinaria.14 All extraordinary aides are horrid to the people, but most especially such as the ship-scot is, whereby all liberty is overthrowne, and all law subjected to the King’s meer discretion.
Queen Elizabeth in 88. was victorious without this taxation, and I am perswaded she was therefore victorious the rather, because shee used it not. Her art was to account her subjects’ hearts as her unfailing Exchequer, and to purchase them by doing legall just things, and this art never deceived her, and in that dismall gust of danger it was good for her and the State, both that she did not rely upon forced aides of money, or the words of grieved souldiers; for this Ship money nothing can bee pretended but necessity, and certainly necessity is ill pretended, when the meer doing of the thing, is as dangerous as that for which it is done. Did not this Ship-scot over-throw all popular liberty, and so threaten as great a mischife as any conquest can? and were not the people justly averse from it? Yet meerly for the people’s disaffection to it, it is dangerous to bee relied upon in case of great danger.
We know Nature teacheth us all, of two evils to chuse that which wee thinke the least, though it bee not so; therefore if the people apprehend this remedy as a thing worse than the disease, though they be mistaken therein, yet that very mistake may prove fatall. The Roman Army being harshly treated by the Senators, and their proud Generall, did refuse to charge upon the enemy, or to resist the charge of the enemie, they chose rather to bee slaughtered by strangers, than enthralled by their countreymen. The English also in the late Scotch invasion, by reason of this and many other causes of discontent, made so faint resistance, that they did in a manner confesse, that they held themselves as miserable already as the Scots could make them. Thus we see there is no necessity of levying Ship-money, there is rather necessity of repealing it: and wee see that presumption of Law doth not abet this necessity, but rather crosse it. And whereas J. Jones further saith, That the King hath no benefite by Ship-money, and therefore presumption is the stronger, that the King will not take it causelesly; wee may answer: The Ship-money is a very great benefite to the King for if not immediatly, yet mediatly it is become a revenue, inasmuch as by this addition all other revenues of the Crowne, nay and Tunnage and Poundage, which were not designed only for ordinary expences, but for extraordinary imployments, and publicke charges also, are now become discharged of that tie, & the Common-wealth hath lost all its interest and property in them. In point of benefit therefore it is all one to the King, and in point of burthen it is all one to the subject, whether Ship-money bee accounted of as part of the King’s annuall rents, or no, since by it his rents are enlarged: and as to the subject there is no obligation, that this levie shall not hereafter incorporate with the rest of the King’s In-traders and be swallowed up as Tunnage and Poundage now are. Thus we see what the necessitie is, and presumption of Law, which was so much insisted upon; and yet for a further confutation of both, Time, the mother of Truth, hath now given us more light. Now that great danger which was pretended so many years together for the necessity of raising so great supplies of treasure, is as a small cloud blown over, making it apparant that Kings may bee mis-informed; and by mis-information take Molehils for Mountaines, and cast heavie burthens upon their subjects.
3. But I come now to my 3d Difficultie, How a publick charge is to be laid upon the kingdome. The Law runs generally, that in England no Tollage or pecuniary charge may bee imposed Fors que per common assent de tout la Realme, or, Sinon per common consent de Parliament. Some presidents, or matters of fact appeare, wherein some Kings have divers times invaded this right of the subject, but upon conference had with the Judges, or petition in Parliament, redresse was ever made, and the subject’s right re-established. All the colour which can be brought to answer the Law in our case, is, that the words of the law are general of Taxes & Tollages, but do not by special mention restrain extraordinary danger. But wee know the Petition of Right, 3. Car. is grounded upon former Statutes, and recites divers of them, and is a cleare affirmance of the common right of England; and yet by that the commissions for Loanes were damned. And it is evident that those Loanes were demanded for the generall defence of the Kingdome in time of imminent danger; and by the same Statute, not only Loanes, but all other levies of money upon what pretence of danger soever, Si non per common consent, are condemned as illegall, and contrary to the Lawes and Rights of England. Two things therefore are objected against Parliaments: First, that they are of slow motion, and so most of the Judges alledge. Secondly, that they may be perverse, and refuse due aid to the King, and so J. Crawly boldly suggests. For answer we say in generall: First, that it is the wisdome of the Kings to be alwayes vigilant, and to have their eyes so open upon forraigne Princes, and to maintaine such intelligence that no preparation from abroad may surprize them before recourse had to Parliament; and this is very easie to Insular Princes, who have a competent strength of shipping, Secondly, to have alwayes in readinesse against all sudden surprizes, a sufficient store of amunition and arms both for sea and land-service: and the revenues of the Crowne of England are sufficient for this purpose, and have been held more than sufficient in former times, when hostility was greater, and the Kingdome smaller. Thirdly, to seek advice and assistance from Parliaments, frequently in times of quiet, as well as of danger, as well when war is but smoking, or kindling, as when it is blowne into a flame. Before the conquest this was held policie, and since in Edward the third’s time, a statute past to this purpose; and if Parliaments of late be growne into dislike, it is not because their vertue is decayed, it is because the corruption of the times cannot endure such sharp remedies. Fourthly, to speak particularly of this case of ship-mony, we say that it is a course more slow than by Parliament: there was more expedition used in Parliament to supply King Charles, since he came to the Crowne, than can this way. And we say moreover, that as the extremity of the Kingdom was when Ship-money was demanded, whatsoever was pretended to the contrary, a Parliament might have beene timely enough called, and seasonably enough supplied the King. As to the second objection of J. Crawly, too unfit to come out of any honest wise man’s mouth, but much more for a Judge’s, Judge Crooke replies, that as there is nullum iniquum in Lege, so neither in Parliamento.15 The three noted factions which are adverse to Parliaments, are the Papists, the Prelates, and Court Parasites; and these may be therefore supposed to hate Parliaments, because they know themselves hatefull to Parliaments. It is scarce possible for the King to finde out any other that thinkes ill of Parliaments or is ill thought of by Parliaments. Of Papists little need to bee said, their enmity is confest, they have little to pretend for themselves, but that Parliaments are grown Puritanicall. The Prelates thinke themselves not to have jurisdiction and power enough; and they know that Parliaments think they have too much, and abuse that which they have much more: therefore to uphold themselves, and to crush their ill-willers, they not only tax Parliaments of Puritanisme, but all Puritans of sedition. As much as in them lies, they wed the King to their quarrell, perswading him that Parliaments out of Puritanisme, doe not so much aime at the fall of Episcopacie, as Monarchy: and that Episcopacie is the support of Monarchy, so that both must stand and fall together. Howbeit because they cannot upbraid Parliaments of attempting anything against Monarchy further than to maintaine due liberty, therefore they preach an unlimitable prerogative, and condemne all law of liberty as injurious to Kings, and incompatible with Monarchy. Manwarring denies Parliamentary power and honour, Cowel16 denies propriety of goods, further than at the King’s discretion, and Harrison17 accuses Judge Hutton of delivering law against God’s Law, in the case of Ship-money. And the common Court doctrine is that Kings are boundlesse in authority, and that they only are Cesar’s friends which justifie that doctrine; and from this doctrine hath grown all the jealousies of late betweene the King and his best Subjects; and this is that venemous matter which hath lain burning, and ulcerating inwardly in the bowels of the common-wealth so long. The other enemies of Parliaments, are Court dependants, and projectors, which have taken advantage of this unnaturall dissention betwixt the King and his Subjects; and have found out meanes to live upon the spoile of both, by siding with the King, and being instruments to extend his Prerogative to the purchasing of preferment to themselves, disaffection to the King, and vexation to the common-wealth. These three factions excepted, and some few Courtiers which are carried with the current of example, or are left to speake unpleasing truths, there is scarce any man in all the King’s dominions, which doth not wish for Parliaments, as the State’s best physick, nay almost as its naturall necessary food: but I will instance in three thinges wherein Parliaments excell all other Counsells whatsoever.
1. For wisdome, no advice can be given so prudent, so profound, so universally comprehending, from any other author; it is truly said by Sir Robert Cotton, that all private single persons may deceive and bee deceived; but all cannot deceive one, nor one all.
That an inconsiderable number of Privadoes should see or know more than whole Kingdomes, is incredible: vox populi was ever reverenced as vox Dei, and Parliaments are infallible, and their acts indisputable to all but Parliaments. It is a just law, that no private man must bee wiser than Law publickly made. Our wisest Kings in England, have ever most relied upon the wisdome of Parliaments.
Secondly, no advice can bee so faithfull, so loyall, so religious and sincere, as that which proceeds from Parliaments, where so many are gathered together for God’s service in such a devout manner, we cannot but expect that God should bee amongst them: and as they have a more especiall blessing promised them; so their ends cannot be so sinister. Private men may thrive by alterations: and common calamities, but the common body can affect nothing but the common good, because nothing else can be commodious for them. Sir Robert Cotton in the life of Hen. 3. according to the Court Doctrine at this present, sayes, that in Parliament Kings are ever lesse than they should be, and the people more. If this bee spoken of irregular Kings, which will endure to heare of nothing but Prerogative government, it may carry some semblance of truth: but sure it is, good and wise Kings are ever greatest when they sit immured, as it were, in that honorable assembly: as the History of Queen Elizabeth and many of her Progenitors testifies. Tis true, Hen. the third, met with divers oppositions in Parliament. He was there upbraided, and called dilapidator regni;18 it was true that he was so, and the most unworthy of rule, that ever sate in this Throne; yet those words became not subjects. I doe not justifie, but in some part extenuate such misdemeanours; for the chiefe blame of those times is not to bee throwne upon the Peeres and Commons, but upon the King and his outlandish Parasites. It is without all question also that in those bloudy unjust times, had it not been for frequent Parliaments, and that soveraigne remedy which thereby was applied to the bleeding wounds of the Kingdome, no other helpe could have stanched them.
Even then, when Parliaments were most prevalent, and when they had so much provocation from so variable and uncapable a Prince, they did not seeke to conditionate prerogative, or to depresse Monarchy for the future, though they were a little too injurious to him in person for the present.
Since that time also many Parliaments have had to struggle for due liberty with insolent Princes, and have had power to clip the wings of Royalty; and the custome of all Europe almost besides hath seemed to give some countenance to such attempts; but the deepe wisdome, and inviolable loyalty of Parliaments to this composure of government hath beene such, that they never made any invasion upon it. As it was in all former ages, so it now remaines intire with all its glorious ensignes of honour, and all the complements of power; and may he be as odious which seekes to alter or diminish Monarchicall government for the future, as he which seekes to make it infinite, and slanders Parliaments as enemies to it, or indeavours to blow such jealousies into the King’s eares.
3. No advice can be so fit, so forcible, so effectuall for the publicke welfare, as that which is given in Parliament: if any Cabinet Counsellors could give as wise and sincere advice as Parliaments, yet it could not be so profitable, because the hearts of the people doe not goe along with any other, as with that.
That King which is potent in Parliament, as any good King may, is as it were so insconsed in the hearts of his subjects, that he is almost beyond the traines or aimes of treason and rebellion at home, nay forraigne hostility cannot pierce him, but through the sides of all his people.
It ought to be noted also, that as the English have ever beene the most devoted servants of equall, sweetly-moderate Soveraignty; so in our English Parliaments, where the Nobility is not too prevalent, as in Denmark, nor the Comminalty, as in the Netherlands, nor the King, as in France, Justice and Policie kisse and embrace more lovingly than elsewhere. And as all the three States have alwayes more harmoniously borne their just proportionable parts in England than elsewhere, so now in these times, in these learned, knowing, religious times, we may expect more blessed counsell from Parliaments than ever, wee received heretofore. May it therefore sinke into the heart of our King to adhere to Parliaments, and to abhorre the grosse delusive suggestions of such as disparage that kinde of Councell. May he rather confide in that Community which can have no other end but their owne happinesse in his greatnesse, than in Papists, Prelates, and Projectors, to whom the publick disunion is advantagious. May hee affect that gentle Prerogative which stands with the happinesse, freedome, and riches of his people; and not that terrible Scepter which does as much avert the hearts, as it does debilitate the hands, and exhaust the purses of his Subjects. May he at last learne by experience, that the grievance of all grievances, that that mischiefe which makes all mischiefes irremediable, and almost hopelesse in England at this day, is that Parliaments are clouded, and disused, and suffered to be calumniated by the ill boding incendiaries of our State. May it lastly enter into his beleefe, that it is impossible for any Kingdome to deny publicke assent for their Prince’s aid, either in Parliament or out, when publicke danger is truly imminent, and when it is fairely required, and not by projects extorted: that no Nation can unnaturally seeke its owne ruine, but that all Kings, like Constantine, may make their Subjects’ purses their owne private coffers, if they will demand due things, at due times, and by due meanes.
4. I come now to the last difficulty about the condition and nature of such aides as are due by Law from the Subject to the King. Though much hath beene argued both at the barre and on the Bench, for the King, that he may raise monies from his Subjects, without consent by law, prerogative, and necessity. Yet at last, because the Petition of Right absolutely crosses this tenet, it is restored to us backe againe, and yeelded, that the King may not impose a pecuniary charge by way of Tollage, but only a personall one by way of service. And now all our controversie ends in this, that we must contest, whether the Ship-scot be a pecuniary, or a personall charge. For though the intent of the Writ, and the office of the Sheriffe be to raise monies only, yet the words of the Writ, and the pretence of State, is to build and prepare Ships of warre. The Kingdome generally takes this to bee a meere delusion and imposture, and doubtlesse it is but a picklock tricke, to overthrow all liberty and propriety of goods, and it is a great shame that so many Judges should be abetters to such fraudulent practice contrived against the State. It is not lawfull for the King to demand monies as monies, but it is lawfull to demand monies under another wrong name, and under this wrong name all former Lawes and Liberties shall be as absolutely cancelled, as if they had beene meere cobwebs, or enacted only out of meere derision. If former laws made to guard propriety of goods were just, and grounded upon good reason, why are they by this grosse fallacy, or childish abuse defeated. If they were not just, or reasonable, what needs such a fond subtiltie as this? Why should not they bee fairely avoided by Law? Why were they made at all? But be this invention what it will, yet wee see it is new; if it be quashed, the State is but where it was, we are still as our Ancestors left us; and since our preceeding Kings never heretofore put it in use in the most necessitous calamitous times, we may from hence infer, that the plea of State necessitie falls off of itselfe; if we admit not of this innovation, then the State suffers not; but if wee admit it, no necessity being of it, wee can frame no other reason for our so doing, but that our former franchises and priviledges were unjust, and therefore this way they must bee annulled. Some of our Judges doe prove, that if this were a personall service, yet it were void; and they cite the case of Barges, and Ballingers vessells, built truly for warre in time of imminent danger, and yet these charges upon complaint made by the Subject, were revoked, and disclaimed. But here in this case many other enormities and defects in Law are, for if ships bee intended to be built in Inland Countries, a thing impossible is injoined; and if monies be aimed at, that very aime is against Law: and if the Kingdome were to be disfranchised, it were not to bee done by an illegall way.
Besides, in the Writ, in the Assessement, in the Sheriffe’s remedie against recusants of it, in the execution of Law, by, or after Judgement, many inconveniences, errors, and mischiefes arise many wayes: and sure take the whole case as it is, and since the Creation no whole Kingdome was ever cast in such a cause before.
Besides, though the Judges ought wholly to have bent themselves upon this, to have proved this a personall service, and no pecuniary charge, they have roved after necessity, presumption of Law, and Prerogative, and scarce said anything at all hereof.
My Lord Bramston argues very eagerly, that personall services by Sea and Land are due to the King in cases of extremity, and all their records, cases, and precedents prove no more, and that men may be arrayed, and ships pressed, and that sumptibus populi;19 but there is nothing proved that the meere raising of monies in this case, is a personall service. J. Jones indeed argues to this purpose: If the Law intrust the King with so great a power over men’s persons, why not over their estates? There is cleare reason for the contrary: because the King, if he should abuse men’s personall aides, could not inrich or profit himselfe thereby, and we know it is gaine and profit, it is Auri sacra fames20 which hath power over the breasts of men. It is not ordinary for Tyrants to imbattaile hoasts of men, and make them charge upon the Sea-billowes, and then to gather up Cockles and Piwinckle shells in lieu of spoile, as one did once. But the world abounds with stories of such Princes, as have offended in abusing their power over men’s estates, and have violated all right divine and human, to attaine to such a boundless power.
Good Kings are sometimes weake in coveting boundlesse power; some affect rivality with God himselfe in power, and yet places that power in doing evill, not good: for few Kings want power to doe good, and therefore it misbecomes not sometimes good Subjects to be jealous in some things of good Kings. But J. Jones farther sayes, that Ships must be built, and without money that cannot be done: ergo. This necessity hath beene answered, and disproved already: and I now adde, that for the good of the Kingdome there is more necessity that Ship-money bee damned than maintained. Such unnaturall slavery seems to mee to bee attendant upon this all-devouring project, and such infamy to our Ancestors, our Lawes, and ourselves, nay and such danger to the King and his posterity, that I cannot imagine how any forraigne conquest should induce anything more to be detested and abhorred.
Those Kings which have beene most covetous of unconfined immoderate power, have beene the weakest in judgement, and commonly their lives have beene poore and toilsome, and their ends miserable, and violent: so that if Kings did rightly understand their owne good, none would more shunne uncontrollable absolutenesse than themselves.
How is the King of France happy in his great Prerogative? or in that terrible style of the King of Asses? Wee see that his immoderate power makes him oppresse his poore Pesants, for their condition is most deplorable, and yet set his power aside, and there is no reason why he should not be as a father to cherish them, as a God to comfort them, not as an enemy to impoverish them, as a tormentor to afflict them.
2. His oppression makes him culpable before God: he must one day render a sad account for all the evill which hee hath imposed, for all the good which he hath not procured to them. That the Vicegerent of God should doe the office of a tyrant, will be no light thing one day.
3. His sinne makes him poore: for were his Pesants suffered to get wealth and enjoy it, the whole land would be his treasury, and that treasury would containe twice as much as now it doth.
4. His poverty makes him impotent, for money being the sinewes of warre, how strong would his joints be, if all his subjects were abounding in money, as doubtlesse they would, if they wanted not liberty, and propriety? Besides, poverty depresses the spirit of a Nation: and were the King of France, King of an Infantery, as he is only of a Cavalry, were he a King of men, as he is only of beasts, had he a power over hearts as he hath over hands, that Country would be twice as puissant as it is.
5. His impotence, together with all other irregularities, and abuses is like to make his Monarchy the lesse durable. Civill wars have ever hitherto infected and macerated that goodly Country, and many times it hath been near its ruine. It now enjoys inward peace, but it doth no great exploits abroad, nor is ever likely to doe, unlesse by practising upon the distemper of other Nations. Should some other Prince practise in the like manner upon that, and propose liberty to the grieved people, much advantage might be taken: but these avisoes would better proceed from that most heroick, most terrible, most armipotent Churchman, which effects such great wonders here. Wee see hence that Princes by some gaine lose, as the whole body pines by the swelling of the spleene. We see that Rehoboam catcht at immoderate power, as the dog in the fable at a shadow, but instead of an uncertain nothing, he let fall and lost a certaine substance; and yet flatterers have scarce any other baite than this shadow of immoderate power, whereby to poison the phantasies of weake humours, undiscerning rash Princes.
My humble motion therefore is: First, that the judgement given in the Chequer Chamber for Ship-money, may bee reversed, and damned, as contrary to the right of the Subject.
Secondly, that those Judges which adhered to equity and integrity in this case, might have some honourable guerdon21 designed them.
Thirdly, that some dishonourable penalty may bee imposed upon those Judges which ill advised the King herein, and then argued as Pleaders, not as Judges; especially if any shall appeare to have solicited the betraying of the Kingdome.
Fourthly, that the meaning of our Lawes & Charters, may bee fully and expresly declared, and the force and vertue of Statutes and publicke Grants, may be vindicated from all such exceptions and objections as have beene particularly or generally made against them.
Fifthly, that a clearer solution may bee given in the foure maine points stirred, how farre prerogative is arbitrary and above Law; and how farre naturall allegeance bindes to yeeld to all demands not of Parliament: next, how the King is sole Judge of danger, as that his meere cognizance thereof shall be sufficient, though there be no appearance or probability thereof. Next, how a necessity of publicke ruine must bee concluded now, if Ship-money be not levied, when no such ruine hath been formerly, when this new plot was not devised. Lastly, how this Ship-scot pretending ships, but intending money, and really raising the same, can bee said to bee no pecuniary tollage within our Statutes, but a meere personall service.
Sixthly, that any Officers, or Ministers of State, which shall attempt to lay the like taxes hereafter upon the Subject, by vertue of the like void warrants, may be held and taken as Felons, or Traitors, or forcible Intruders.
Seventhly, that something may be inacted against forraigne or domesticall Forces also, if they shall be congregated for the like purposes; and that the subject may bee inabled by some fit and timely remedy to bee given against a military kinde of government.
Eighthly, that the due way of publicke defence, in case of imminent and eminent danger, or actuall necessary warre, for the pressing of men, and other charges of warre, such as Cote and Conduct money,22 and all doubts thereabouts, may be made more certaine, and settled for the time to come.
Ninthly, that if the King’s ordinary Revenues now taken for the Crowne, be not sufficient to maintaine him, as our great Master, some legall order may be taken therefore, and that he may be sensible of his Subjects’ loyalty, and his Subjects live safe under him, that his enemies may finde him considerable, and his true friends usefull.
John Pym, The Speech or Declaration
John Pym, 1584-1643
JOHN PYM, Esquire:
After the Recapitulation or summing up of the Charge of High-Treason,
Earle of Strafford,
12. April, 1641.
Published by Order of theCommons House.
Printed for John Bartlet. 1641.
The renowned parliamentary leader and politician John Pym was an outspoken critic of the Court. He opposed Arminianism and Catholic influences in the Church of England, and he staunchly upheld what he saw as England’s ancient constitution. Pym was educated at Oxford and entered the Middle Temple, although he was never called to the bar. His long parliamentary career began in 1614 in the reign of James I. Pym actively supported the Petition of Right in the Parliament of 1628 and later in that session conducted the Commons’ case against Roger Maynwaring. He was a leading member of the Commons in the Short Parliament and, even more important, in the Long Parliament.
Pym was convinced there was a plot to destroy parliamentary institutions and the Protestant religion. When the Long Parliament convened he demanded that those guilty of this conspiracy be punished. Prominent among those he believed culpable was Charles’s leading councillor and loyal minister, Thomas Wentworth, Earl of Strafford. Strafford’s willingness to resort to extraordinary means on behalf of his master and his high-handed administration as president of the Council of the North and lord-deputy of Ireland had made him notorious. Beyond this Strafford was believed to have urged the king to use an Irish army against the English parliament and was preparing to charge parliamentary leaders with treasonous conspiracy with the Scots.
Pym played the leading role in Strafford’s fall. He moved that a subcommittee investigate Strafford’s conduct in Ireland and later that he be impeached on a charge of high treason. This meant a trial before the House of Lords. Pym led the attack at every stage, from the collection of evidence and preparation of charges to the presentation of the case. Strafford’s trial began on 22 March 1641. The chief difficulty was that despite his overbearing tactics and possible transgressing of the royal prerogative on behalf of Charles, Strafford had not committed any act of treason against the king. Pym attempted to get around this by arguing that to endeavour the subversion of the laws of the kingdom was treason; that to come between the king and his people was treason; that the culmination of many small, perfidious acts, none of which was in itself treasonous, could constitute treason.
Strafford defended himself so ably that on 10 April with the Lords reluctant to convict, a bill of attainder was introduced into the Commons. This would simply declare Strafford guilty without the necessity of a trial. As the bill of attainder moved through the legislative process the original impeachment continued with Pym chosen by the Commons to deliver its reply to Strafford’s defense. Pym’s speech to the Lords on that occasion, published as a tract and reprinted here, sets out the Commons’ constitutional position succinctly and eloquently. He explains their notion of treason as a subversion of the laws, an introduction of an arbitrary and tyrannical government. This speech has been acclaimed as the best of Pym’s career. At least nine editions of it were printed in 1641.
Despite Pym’s efforts the impeachment was dropped. The bill of attainder, however, passed, and on 12 May Strafford was executed. Despite Charles’s promise to Strafford that he would pardon him, the king made no move to save his loyal minister. It would be one of his lasting regrets. With the onset of civil war Pym served as a leader of the parliamentary party. He would never live to see its outcome. He died in December 1643.
The Speech or Declaration of John Pym, Esq: &c.
Many dayes have been spent in maintenance of the Impeachment of the Earle of Strafford, by the House of Commons, whereby he stands charged with High Treason. And your Lordships have heard his Defence with Patience, and with as much favour as Justice would allow. We have passed through our Evidence, and the Result of all this is, that it remaines clearly proved, That the Earle of Strafford hath indeavoured by his words, actions, and counsels, to subvert the Fundamentall Lawes of England and Ireland, and to introduce an Arbitrary and Tyrannicall Government.
This is the envenomed Arrow for which he inquired in the beginning of his Replication this day, which hath infected all his Bloud. This is that Intoxicating Cup, (to use his owne Metaphor) which hath tainted his Judgement, and poisoned his Heart. From hence was infused that Specificall Difference which turned his Speeches, his Actions, his Counsels into Treason; Not Cumulative, as he exprest it, as if many Misdemeanours could make one Treason; but Formally and Essentially. It is the End that doth informe Actions, and doth specificate the nature of them, making not only criminall, but even indifferent words and actions to be Treason, being done and spoken with a Treasonable intention.
That which is given me in charge, is, to shew the quality of the offence, how hainous it is in the nature, how mischievous in the effect of it; which will best appeare if it be examined by that Law, to which he himselfe appealed, that universall, that Supreme Law, Salus populi. This is the Element of all Laws, out of which they are derived; the End of all Laws, to which they are designed, and in which they are perfected. How far it stands in opposition to this Law, I shall endeavour to shew in some Considerations which I shall present to your Lordships, all arising out of the Evidence which hath been opened.
The first is this: It is an offence comprehending all other offences; here you shall finde severall Treasons, Murders, Rapines, Oppressions, Perjuries.
The Earth hath a Seminarie vertue, whereby it doth produce all Hearbs, and Plants, and other Vegetables. There is in this Crime, a Seminarie of all evils hurtfull to a State; and if you consider the reasons of it, it must needs be so. The Law is that which puts a difference betwixt good and evill, betwixt just and unjust. If you take away the Law, all things will fall into a confusion, every man will become a Law to himselfe, which in the depraved condition of human nature, must needs produce many great enormities. Lust will become a Law, and Envie will become a Law, Covetousnesse and Ambition will become Lawes; and what dictates, what decisions such Laws will produce, may easily be discerned in the late Government of Ireland.1 The Law hath a power to prevent, to restraine, to repaire evils; without this all kind of mischiefs and distempers will break in upon a State.
It is the Law that doth intitle the King to the Allegeance and service of his people; it intitles the people to the protection and justice of the King. It is God alone who subsists by himselfe, all other things subsist in a mutuall dependence and relation. He was a wise man that said, that the King subsisted by the field that is tilled. It is the labour of the people that supports the Crowne. If you take away the protection of the King, the vigour and cheerfulness of Allegeance will be taken away, though the Obligation remaine.
The Law is the Boundarie, the Measure betwixt the King’s Prerogative, and the People’s Liberty. Whiles these move in their owne Orbe, they are a support and security to one another; The Prerogative a cover and defence to the Liberty of the people, and the people by their liberty are enabled to be a foundation to the Prerogative; but if these bounds be so removed, that they enter into contestation and conflict, one of these mischiefes must needs ensue. If the Prerogative of the King overwhelm the liberty of the people, it will be turned into Tyrannie; if liberty undermine the Prerogative, it will grow into Anarchie.
The Law is the safeguard, the custody of all private interest. Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law; without this, every man hath a like right to anything, and this is the condition into which the Irish were brought by the E. of Strafford. And the reason which he gave for it, hath more mischiefe in it than the thing itselfe, They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treason, than that word is. There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he please to those that are conquered. But if the succeeding Pacts and Agreements doe not limit and restraine that Right, what people can be secure? England hath been conquered, and Wales hath been conquered, and by this reason will be in little better case than Ireland. If the King by the Right of a Conquerour gives Lawes to his People, shall not the people by the same reason be restored to the Right of the conquered, to recover their liberty if they can? What can be more hurtfull, more pernicious to both, than such Propositions as these? And in these particulars is determined the first Consideration.
The second Consideration is this: This Arbitrary power is dangerous to the King’s Person, and dangerous to his Crown. It is apt to cherish Ambition, usurpation, and oppression in great men, and to beget sedition and discontent in the People; and both these have beene, and in reason must ever be causes of great trouble and alteration to Princes and States.
If the Histories of those Easterne Countries be perused, where Princes order their affaires according to the mischievous principles of the E. of Strafford, loose and absolved from all Rules of Government, they will be found to be frequent in combustions, full of Massacres, and of the tragicall ends of Princes. If any man shall look into our owne stories, in the times when the Laws were most neglected, he shall find them full of Commotions, of Civill distempers; whereby the Kings that then reigned, were alwayes kept in want and distresse; the people consumed with Civill wars: and by such wicked counsels as these, some of our Princes have beene brought to such miserable ends, as no honest heart can remember without horrour, and earnest Prayer, that it may never be so againe.
The third Consideration is this, The subversion of the Lawes. And this Arbitrary power, as it is dangerous to the King’s Person and to his Crowne, so is it in other respects very prejudiciall to his Majesty in his Honour, Profit, and Greatnesse; and yet these are the gildings and paintings that are put upon such counsels. These are for your Honour, for your service; whereas in truth they are contrary to both. But if I shall take off this varnish, I hope they shall then appeare in their owne native deformity, and therefore I desire to consider them by these Rules.
It cannot be for the Honour of a King, that his sacred Authority should be used in the practice of injustice and oppression; that his Name should be applied to patronize such horrid crimes, as have beene represented in Evidence against the Earle of Strafford; and yet how frequently, how presumptuously his Commands, his Letters have beene vouched throughout the course of this Defence, your Lordships have heard. When the Judges doe justice, it is the King’s justice, and this is for his honour, because he is the Fountaine of justice; but when they doe injustice, the offence is their owne. But those Officers and Ministers of the King, who are most officious in the exercise of this Arbitrarie power, they doe it commonly for their advantage; and when they are questioned for it, then they fly to the King’s interest; to his Direction. And truly my Lords, this is a very unequall distribution for the King, that the dishonour of evill courses should be cast upon him, and they to have the advantage.
The prejudice which it brings to him in regard of his profit, is no lesse apparent. It deprives him of the most beneficiall, and most certaine Revenue of his Crowne, that is, the voluntary aids and supplies of his people; his other Revenues, consisting of goodly Demeanes, and great Manors, have by Grants been alienated from the Crowne, and are now exceedingly diminished and impaired. But this Revenue it cannot be sold, it cannot be burdened with any Pensions or Annuities, but comes intirely to the Crowne. It is now almost fifteene years since his Majesty had any assistance from his people;2 and these illegall wayes of supplying the King were never prest with more violence, and art, than they have been in this time; and yet I may upon very good grounds affirm, that in the last fifteene years of Queen Elizabeth, she received more by the Bounty and Affection of her Subjects, than hath come to His Majestie’s Coffers by all the inordinate and rigorous courses which have beene taken. And as those Supplies were more beneficiall in the Receipt of them, so were they like in the use and imployment of them.
Another way of prejudice to his Majestie’s profit, is this: Such Arbitrary courses exhaust the people, and disable them, when there shall be occasion, to give such plentifull supplies, as otherwise they would doe. I shall need no other proofe of this, than the Irish Government under my E. of Strafford, where the wealth of the Kingdome is so consumed by those horrible exactions, and burdens, that it is thought the Subsidies lately granted will amount to little more than halfe the proportion of the last Subsidies. The two former wayes are hurtfull to the King’s profit, in that respect which they call Lucrum Cessans,3 by diminishing his receipts. But there is a third, fuller of mischiefe, and it is in that respect which they call Damnum emergens,4 by increasing his Disbursements. Such irregular and exorbitant attempts upon the Libertie of the people, are apt to produce such miserable distractions and distempers, as will put the King and Kingdome to such vast expences and losses in a short time, as will not be recovered in many yeares. Wee need not goe farre to seeke a proofe of this, these two last yeares will be a sufficient evidence, within which time I assure myselfe, it may be proved, that more Treasure hath beene wasted, more losse sustained by his Majesty and his Subjects, than was spent by Queene Elizabeth in all the War of Tyrone,5 and in those many brave Attempts against the King of Spaine, and the royall assistance which she gave to France, and the Low-Countries, during all her Reigne.
As for Greatnesse, this Arbitrary power is apt to hinder and impaire it, not only at home, but abroad. A Kingdome is a society of men conjoyned under one Government, for the common good. The world is a society of Kingdomes and States. The King’s greatnesse consists not only in his Dominion over his Subjects at home, but in the influence which he hath upon States abroad; That he should be great even among Kings, and by his wisdome and authority so to incline and dispose the affaires of other States and Nations, and those great events which fall out in the world, as shall be for the good of Mankind, and for the peculiar advantage of his owne people. This is the most glorious, and magnificent greatness, to be able to relieve distressed Princes, to support his owne friends and Allies, to prevent the ambitious designes of other Kings; and how much this Kingdome hath been impaired in this kinde, by the late mischievous counsels your Lordships best know, who at a neerer distance, and with a more cleare sight, doe apprehend these publique and great affaires, than I can doe. Yet thus much I dare boldly say, that if his Majestie had not with great wisdome and goodness forsaken that way wherein the Earle of Strafford had put him, we should within a short time have been brought into that miserable condition, as to have been uselesse to our friends, contemptible to our enemies, and uncapable of undertaking any great designe either at home or abroad.
A fourth Consideration is, That this Arbitrary, and Tyrannicall Power, which the E. of Strafford did excercise in his own person, and to which he did advise his Majesty, is inconsistent with the Peace, the Wealth, the Prosperity of a Nation. It is destructive to Justice, the Mother of Peace; to Industry, the spring of Wealth; to Valour, which is the active vertue whereby the prosperity of a Nation can only be procured, confirmed, and inlarged.
It is not only apt to take away Peace, and so intangle the Nation with Warres, but doth corrupt Peace, and puts such a malignity into it, as produceth the Effects of warre. We need seek no other proofe of this, but the E. of Strafford’s Government, where the Irish, both Nobility and others, had as little security of their Persons or Estates in this peaceable time, as if the Kingdome had been under the rage and fury of warre.
And as for Industrie, and Valour, who will take pains for that, which when he hath gotten, is not his own? Or who fight for that wherein he hath no other interest, but such as is subject to the will of another? The Ancient encouragement to men that were to defend their Countries was this, That they were to hazard their Persons, pro Aris & Focis, for their Religion, and for their Houses. But by this Arbitrary way which was practiced in Ireland, and counselled here, no man had any certainty, either of Religion, or of his House, or anything else to be his own. But besides this, such Arbitrary courses have an ill operation upon the courage of a Nation, by embasing the hearts of the people. A servile condition doth for the most part beget in men a slavish temper and disposition. Those that live so much under the Whip and the Pillory, and such servile Engines, as were frequently used by the E. of Strafford, they may have the dregges of valour, sullennesse, & stubbornesse, which may make them prone to Mutinies, and discontents; but those Noble and gallant affections, which put men on brave Designes and Attempts for the preservation or inlargement of a Kingdome, they are hardly capable of. Shall it be Treason to embase the King’s Coine, though but a piece of twelve-pence, or sixe-pence, and must it not needs be the effect of a greater Treason, to embase the spirits of his Subjects, and to set a stamp and Character of Servitude upon them, whereby they shall be disabled to doe anything for the service of the King or Commonwealth?
The fifth Consideration is this, That the exercise of this Arbitrary Government, in times of sudden danger, by the invasion of an enemy, will disable his Majesty to preserve himselfe and his Subjects from that danger. This is the only pretence by which the E. of Strafford, and such other mischievous Counsellors would induce his Majesty to make use of it; and if it be unfit for such an occasion, I know nothing that can be alledged in maintenance of it.
When warre threatens a Kingdome by the comming of a forrain Enemy, it is no time then to discontent the people, to make them weary of the present Government, and more inclinable to a Change. The supplies which are to come in this way, will be unready, uncertain; there can be no assurance of them, no dependence upon them, either for time or proportion. And if some money be gotten in such a way, the Distractions, Divisions, Distempers, which this course is apt to produce, will be more prejudiciall to the publique safety, than the supply can be advantagious to it; and of this we have had sufficient experience the last Summer.
The sixth, That this crime of subverting the Laws, and introducing an Arbitrary and Tyrannicall Government, is contrary to the Pact and Covenant betwixt the King and his people. That which was spoken of before, was the legall union of Allegeance and Protection; this is a personallunion by mutuall agreement and stipulation, confirmed by oath on both sides. The King and his people are obliged to one another in the nearest relations; He is a Father, and a childe is called in Law, Pars Patris.6 Hee is the Husband of the Commonwealth, they have the same interests, they are inseparable in their condition, be it good or evill. He is the Head, they are the Body; there is such an incorporation as cannot be dissolved without the destruction of both.
When Justice Thorpe, in Edward the third’s time, was by the Parliament condemned to death for Bribery, the reason of that Judgement is given, because he had broken the King’s Oath, not that he had broken his own oath, but that he had broken the King’s oath, that solemne and great obligation, which is the security of the whole Kingdome. If for a Judge to take a small summe in a private cause, was adjudged Capitall, how much greater was this offence, whereby the E. of Strafford hath broken the King’s Oath in the whole course of his Government in Ireland, to the prejudice of so many of his Majestie’s Subjects, in their Lives, Liberties, and Estates, and to the danger of all the rest?
The Doctrine of the Papists, Fides non est servanda cum Haereticis,7 is an abominable Doctrine: yet that other Tenet more peculiar to the Jesuites is more pernicious, whereby Subjects are discharged from their Oath of Allegeance to their Prince whensoever the Pope pleaseth. This may be added to make the third no lesse mischievous and destructive to human society, than either of the rest: That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdome, but may when he sees cause, lay Taxes and burdens upon them without their consent, contrary to the Laws and Liberties of the Kingdome. This hath been preached and published by divers; And this is that which hath been practised in Ireland by the E. of Strafford, in his Government there, and indeavoured to be brought into England, by his Counsell here.
The seventh is this; It is an offence that is contrary to the end of Government. The end of Government was to prevent oppressions, to limit and restrain the excessive power and violence of great men, to open the passages of Justice with indifferency towards all. This Arbitrary power is apt to induce and incourage all kind of insolencies.
Another end of Government is to preserve men in their estates, to secure them in their Lives and Liberties; but if this Designe had taken effect, and could have been setled in England, as it was practiced in Ireland, no man would have had more certainty in his own, than power would have allowed him. But these two have beene spoken of before, there are two behind more important, which have not yet been touched.
It is the end of Government, that vertue should be cherisht, vice supprest; but where this Arbitrary and unlimited power is set up, a way is open not only for the security, but for the advancement and incouragement of evill. Such men as are aptest for the execution and maintenance of this Power, are only capable of preferment; and others who will not be instruments of any unjust commands, who make a conscience to doe nothing against the Laws of the Kingdome, and Liberties of the Subject, are not only not passable for imployment, but subject to much jealousie and danger.
It is the end of Government, that all accidents and events, all Counsels and Designes should be improved to the publique good. But this Arbitrary Power is apt to dispose all to the maintenance of itselfe. The wisdome of the Councell-Table, the Authority of the Courts of Justice, the industry of all the Officers of the Crown have been most carefully exercised in this; the Learning of our Divines, the Jurisdiction of our Bishops have been moulded and disposed to the same effect, which though it were begun before the E. of Strafford’s Imployment, yet it hath beene exceedingly furthered and advanced by him.
Under this colour and pretence of maintaining the King’s Power and Prerogative many dangerous practices against the peace and safety of this Kingdome have been undertaken and promoted. The increase of Popery, and the favours and incouragement of Papists have been, and still are a great grievance and danger to the Kingdome. The Innovations in matters of Religion, the usurpations of the Clergie, the manifold burdens and taxations upon the people, have been a great cause of our present distempers and disorders; and yet those who have been chiefe Furtherers and Actors of such Mischiefes, have had their Credit and Authority from this, That they were forward to maintain this Power. The E. of Strafford had the first rise of his greatnesse from this, and in his Apologie and Defence, as your Lordships have heard, this hath had a maine part.
The Royall Power, and Majesty of Kings, is most glorious in the prosperity and happinesse of the people. The perfection of all things consists in the end for which they were ordained, God only is his own end, all other things have a further end beyond themselves, in attaining whereof their own happinesse consists. If the means and the end be set in opposition to one another, it must needs cause an impotency and defect of both.
The eighth Consideration is, The vanity and absurdity of those excuses and justifications which he made for himself, whereof divers particulars have been mentioned in the course of his Defence.
1. That he is a Counsellor, and might not be questioned for anything which he advised according to his conscience. The ground is true, there is a liberty belongs to Counsellors, and nothing corrupts Counsels more than fear. He that will have the priviledge of a Counsellor, must keep within the just bounds of a Counsellor; those matters are the proper subjects of Counsell, which in their times and occasions, may be good or beneficiall to the King or Common-wealth. But such Treasons as these, the subversion of the Laws, violation of Liberties, they can never be good, or justifiable by any circumstance, or occasion; and therefore his being a Counsellor, makes his fault much more hainous, as being committed against a greater Trust, and in a way of much mischiefe and danger, lest his Majestie’s conscience and judgment (upon which the whole course and frame of his Government do much depend) should be poisoned and infected with such wicked principles and designes. And this he hath endeavoured to doe, which by all Lawes, and in all times hath in this Kingdome beene reckoned a Crime of an high Nature.
2. He labours to interest your Lordships in his cause, by alledging, It may be dangerous to yourselves, and your Posterity, who by your birth are fittest to be near his Majesty, in places of Trust and Authority, if you should be subject to be questioned for matters delivered in Counsell. To this was answered, that it was hoped their Lordships would rather labour to secure themselves, and their posterity, in the exercise of their vertues, than of their vices, that so they might together with their own honour and greatnesse, preserve the honour and greatnesse, both of the King and Kingdome.
3. Another excuse was this, that whatsoever he hath spoken was out of a good intention. Sometimes good and evill, truth and falshood lie so near together, that they are hardly to be distinguished. Matters hurtfull and dangerous may be accompanied with such circumstances as may make it appeare usefull and convenient, and in all such cases, good intentions will justifie evill Counsell. But where the matters propounded are evill in their own nature, such as the matters are wherewith the E. of Strafford is charged, to break a publique faith, to subvert Laws and Government, they can never be justified by any intentions, how specious, or good soever they be pretended.
4. He alledgeth it was a time of great necessity and danger, when such counsels were necessary for preservation of the State. Necessity hath been spoken of before, as it relates to the Cause; now it is considered as it relates to the Person; if there were any necessity, it was of his own making; he by his evil counsell had brought the King into a necessity, and by no Rules of Justice, can be allowed to gain this advantage by his own fault, as to make that a ground of his justification, which is a great part of his offence.
5. He hath often insinuated this, That it was for his Majestie’s service in maintenance of the Soveraign Power with which he is intrusted by God for the good of his people. The Answer is this, No doubt but that Soveraign Power wherewith his Majesty is intrusted for the publique good, hath many glorious effects, the better to inable him thereunto. But without doubt this is none of them, That by his own will he may lay any Taxe or Imposition upon his people without their consent in Parliament. This hath now been five times adjudged by both Houses. In the Case of the Loanes, In condemning the Commission of Excise, In the Resolution upon the Saving8 offered to be added to the Petition of Right, In the sentence against Manwaring, and now lately, In condemning the Shipmoney. And if the Soveraigne Power of the King can produce no such effect as this, the Allegation of it is an Aggravation, and no Diminution of his offence, because thereby he doth labour to interest the King against the just grievance and complaint of the People.
6. This Counsell was propounded with divers limitations, and Provisions; for securing and repairing the liberty of the people. This implies a contradiction to maintain an Arbitrary & absolute Power, and yet to restrain it with limitations, and provisions; for even those limitations and provisions will be subject to the same absolute Power, and to be dispensed in such manner, and at such time, as itself shall determine; let the grievances and oppressions be never so heavy, the Subject is left without all remedy, but at his Majestie’s own pleasure.
7. He alledgeth, they were but words, and no effect followed. This needs no answer, but that the miserable distempers into which he hath brought all the three Kingdomes, will be evidence sufficient that his wicked Counsels have had such mischievous effects within these two or three last years, that many years’ peace will hardly repaire those losses, and other great mischiefes which the Common-wealth hath sustained.
These excuses have been collected out of the severall parts of his Defence; perchance some others are omitted, which I doubt not have been answered by some of my Colleagues, and are of no importance, either to perplex or to hinder your Lordships’ judgement, touching the hainousnesse of this Crime.
The ninth Consideration is this, That if this be Treason, in the nature of it, it doth exceed all other Treasons in this, That in the Design, and endeavour of the Author, it was to be a constant and a permanent Treason; other Treasons are transient, as being confined within those particular actions and proportions wherein they did consist, and those being past, the Treason ceaseth.
The Powder Treason9 was full of horror and malignity, yet it is past many years since. The murder of that Magnanimous and glorious King, Henry the fourth of France, was a great and horrid Treason. And so were those manifold attempts against Queen Elizabeth of blessed memory; but they are long since past, the Detestation of them only remains in Histories, and in the minds of men; and will ever remain. But this Treason, if it had taken effect, was to be a standing, perpetuall Treason, which would have been in continuall act, not determined within one time or age, but transmitted to Posterity, even from generation to generation.
The tenth Consideration is this, That as it is a Crime odious in the nature of it, so it is odious in the judgement and estimation of the Law. To alter the setled frame and constitution of Government, is Treason in any estate. The Laws whereby all other parts of a Kingdome are preserved, should be very vain and defective, if they had not a power to secure and preserve themselves.
The forfeitures inflicted for Treason by our Law, are of Life, Honour, and Estate, even all that can be forfeited, and this Prisoner having committed so many Treasons, although he should pay all these forfeitures, will be still a Debtor to the Common-wealth. Nothing can be more equall than that he should perish by the Justice of that Law which he would have subverted. Neither will this be a new way of bloud. There are marks enough to trace this Law to the very originall of this Kingdome. And if it hath not been put in execution, as he alledgeth, this 240 years, it was not for want of Law, but that all that time hath not bred a man bold enough to commit such Crimes as these; which is a circumstance much aggravating his offence, and making him no whit lesse liable to punishment, because he is the only man that in so long a time hath ventured upon such a Treason as this.
It belongs to the charge of another to make it appear to your Lordships, that the Crimes and Offences proved against the Earle of Strafford, are High Treason by the Lawes and Statutes of this Realm, whose learning and other abilities are much better for that service. But for the time and manner of performing this, we are to resort to the Direction of the House of Commons, having in this which is already done, dispatched all those instructions which wee have received; and concerning further proceedings, for clearing all Questions and Objections in Law, your Lordships will hear from the House of Commons in convenient time.
Charles I, XIX Propositions Made by Parliament
Charles I, 1600-1649
By both Houses of Parliament, to the Kings most Excellent Majestie:
With His Majesties Answer thereunto.
¶By the King.
Our expresse pleasure is, That this Our Answer be read and published throughout all Churches and Chappels of the Kingdom of England and Dominion of Wales,
By the severall Parsons, Vicars, or Curats of the same.
Printed by Robert Barker, Printer to the Kings most Excellent Majestie: And by the Assignes of John Bill.
After Charles abandoned London in January 1642 for what he hoped would be the more loyal North, the two houses of Parliament at Westminster attempted to negotiate with him through a series of published declarations, remonstrances, answers, and open letters. These reached a constitutional climax in June with Parliament’s publication on 1 June of the Nineteen Propositions, proposals that would have sharply and permanently circumscribed the king’s powers, and Charles’s response on 18 June.
Charles’s “Answer to the Nineteen Propositions” has become even more famous than the propositions themselves. This answer has been heralded for its endorsement of England’s mixed and balanced constitution and for its reliance upon law for support. Of chief significance, however, is the king’s acceptance of the concept that he is not above the three estates assembled in Parliament but in fact is one of the three estates. The Answer was written for Charles by two of his moderate advisers, Sir John Colepeper and Lucius Cary, Viscount Falkland—men who had worked in the Long Parliament the previous year to rein in the expanded royal prerogative. The passage in which the king endorses the idea of being one of three estates in Parliament—thus excluding the bishops from membership and reducing the position of the Crown to coordinate membership—was penned by Colepeper. It is unclear whether Falkland fully endorsed the Answer’s concession that the king was one of the three estates. He later pleaded inadvertence, claimed Colepeper had been misled by some lawyers, and that clergymen had misunderstood. Sir Edward Hyde, the best known of Charles’s moderate advisers, was unhappy with the concession and tried to delay publication. It is even unclear whether the king actually read the crucial passage, although he assuredly glanced at, and gave his approval to, the lengthy reply. In important respects it does not reflect views Charles espoused before or afterward.
Whatever confusion reigned among the king’s advisers, however willingly, reluctantly, or unknowingly the king complied, the Answer publicly altered the basis of royal defense and argument.
There is much of interest in the entire reply. Because historians have focused almost exclusively upon its crucial constitutional concessions, however, the answer has seldom been reprinted in its entirety. As a result its tone has been misread. The reply reprinted here was published by royal order at York and is unusual in providing the text of both the Nineteen Propositions and the king’s Answer. In earnest of the king’s desire that the Answer be widely published and read in churches throughout England and Wales, six further editions were printed in 1642. It is notable that two editions published in 1643 either omitted the reference to the three estates of Parliament or the entire section on the English constitution.
XIX. Propositions made by both Houses of Parliament, to the Kings most excellent Majestie, touching the differences between His Majestie and the said Houses.
Your Majestie’s most humble and faithfull Subjects, the Lords and Commons in Parliament, having nothing in their thoughts and desires more precious and of higher esteem (next to the Honour and immediate Service of God) than the just and faithfull performance of their Dutie to your Majestie and this Kingdom, and being very sensible of the great distractions and distempers, and of the imminent Dangers and Calamities which those Distractions and Distempers are like to bring upon your Majestie and your Subjects: All which have proceeded from the subtill Insinuations, mischievous Practises, and evill Counsels of Men disaffected to God’s true Religion, your Majestie’s Honor and Safetie, and the publike Peace and Prosperitie of your people: After a serious observation of the Causes of those Mischiefs, do in all Humilitie and Sinceritie present to your Majestie their most dutifull Petition and Advice; That out of your Princely Wisdom, for the establishing your own Honour and Safetie, and gracious tendernesse of the welfare and securitie of your Subjects and Dominions, You will be pleased to Grant and Accept these their humble Desires and Propositions, as the most necessarie effectuall means, through God’s blessing, of removing those Jealousies and Differences which have unhappily fallen betwixt You and your People, and procuring both your Majestie and them a constant course of Honour, Peace, and Happinesse.
I. That the Lords, and others of your Majestie’s Privie Councell, and such great Officers and Ministers of State, either at home or beyond the Seas, may be put from your Privie Councell, and from those Offices and Imployments, excepting such as shall be approved of by both Houses of Parliament; And that the Persons put into the Places and Imployments of those that are removed, may be approved of by both Houses of Parliament; And that all Privie Councellors shall take an Oath for the due execution of their Places, in such forme as shall be agreed upon by both Houses of Parliament.
II. That the great Affairs of the Kingdom may not be Concluded or Transacted by the Advise of private men, or by any unknown or unsworn Councellors; but that such Matters as concern the Publike, and are proper for the high Court of Parliament, which is your Majestie’s great and supreme Councell, may be Debated, Resolved, and Transacted only in Parliament, and not elsewhere. And such as shall presume to do anything to the contrary, shall be reserved to the Censure and Judgement of Parliament: And such other matters of State as are proper for your Majestie’s Privie Councell, shall be debated and concluded by such of the Nobility and Others, as shall from time to time be chosen for that place by approbation of both Houses of Parliament. That no publicke Act concerning the Affairs of the Kingdom, which are proper for your Privie Councell, may be esteemed of any validity, as proceeding from the Royall Authority, unlesse it be done by the advice and consent of the major part of your Councell, attested under their hands. And that your Councell may be limited to a certain number, not exceeding five and twenty, nor under fifteen; and if any Councellor’s place happen to be void in the Intervals of Parliament, it shall not be supplied without the Assent of the major part of the Councell; which choice shall be confirmed at the next sitting of the Parliament, or else to be void.
III. That the Lord high Steward of England, Lord high Constable, Lord Chancellour, or Lord Keeper of the great Seal, Lord Treasurer, Lord Privie Seal, the Earle Marshall, Lord Admirall, Warden of the Cinque-Ports, chief Governour of Ireland, Chancellour of the Exchequer, Master of the Wards, Secretaries of State, two chief Justices, and chief Baron, may be alwayes chosen with the approbation of both Houses of Parliament: And in the Intervals of Parliaments by assent of the major part of the Councell, in such manner as is before expressed in the choice of Councellors.
IV. That he or they unto whom the Government and education of the King’s Children shall be committed, shall be approved of by both Houses of Parliament; and in the Intervals of Parliaments, by the assent of the major part of the Councell, in such manner as is before exprest in the choice of Councellors: And that all such Servants as are now about them, against whom both Houses shall have any just exception, shall be removed.
V. That no Marriage shall be Concluded, or Treated for any of the King’s Children, with any Forraign Prince, or other Person whatsoever abroad, or at home, without the consent of Parliament, under the penalty of a Premunire unto such as shall so Conclude or Treate any Marriage as aforesaid. And that the said Penalty shall not be pardoned or dispensed with, but by the consent of both Houses of Parliament.
VI. That the Laws in force against Jesuites, Priests, and Popish Recusants, be strictly put in execution, without any Toleration or Dispensation to the contrary; and that some more effectuall Course may be Enacted, by Authoritie of Parliament, to disable them from making any disturbance in the State, or eluding the Law by Trusts, or otherwise.
VII. That the Votes of Popish Lords in the House of Peers, may be taken away, so long as they continue Papists; and that His Majestie would consent to such a Bill as shall be drawn for the Education of the Children of Papists by Protestants in the Protestant Religion.
VIII. That your Majestie will be pleased to Consent, That such a Reformation be made of the Church-Government, and Liturgie as both Houses of Parliament shall advise, wherein they intend to have Consultations with Divines, as is expressed in the Declaration to that purpose; and that your Majestie will contribute your best Assistance to them for the raising of a sufficient Maintenance for Preaching Ministers thorowout the Kingdom: And that your Majestie will be pleased to give your consent to Laws for the taking away of Innovations and Superstition, and of Pluralities, and against Scandalous Ministers.
IX. That your Majestie will be pleased to rest satisfied with that Course that the Lords and Commons have appointed for Ordering the Militia,1 untill the same shall be further setled by a Bill: And that you will recall your Declarations and Proclamations against the Ordinance made by the Lords and Commons concerning it.
X. That such Members of either House of Parliament, as have, during this present Parliament, been put out of any Place and Office,2 may either be restored to that Place and Office, or otherwise have satisfaction for the same, upon the Petition of that House, whereof he or they are Members.
XI. That all Privie Councellors and Judges may take an Oath, the form whereof to be agreed on, and setled by Act of Parliament, for the maintaining of the Petition of Right, and of certain Statutes made by this Parliament, which shall be mentioned by both Houses of Parliament: And that an enquiry of the Breaches and Violations of those Laws may be given in charge by the Justices of the King’s-Bench every Tearm, and by the Judges of Assize in their Circuits, and Justices of Peace at the Sessions, to be presented and punished according to Law.
XII. That all the Judges and all Officers placed by approbation of both Houses of Parliament, may hold their Places, Quam diu bene se gesserint.3
XIII. That the justice of Parliament may passe upon all Delinquents, whether they be within the Kingdom, or fled out of it; And that all Persons cited by either House of Parliament, may appear and abide the censure of Parliament.
XIIII. That the Generall Pardon offered by your Majestie, may be granted with such Exceptions, as shall be advised by both Houses of Parliament.
XV. That the Forts and Castles of this Kingdom, may be put under the Command and Custody of such Persons as your Majestie shall appoint, with the approbation of your Parliaments: and in the intervals of Parliament, with the approbation of the major part of the Councell, in such manner as is before expressed in the choice of Councellors.
XVI. That the extraordinary Guards, and Millitary Forces,4 now attending your Majestie, may be removed and discharged; and that for the future you will raise no such Guards or extraordinary Forces, but according to the Law, in case of actuall Rebellion or Invasion.
XVII. That your Majestie will be pleased to enter into a more strict Alliance with the States of the United Provinces, and other neighbour Princes and States of the Protestant Religion, for the defence and maintenance thereof against all Designes and Attempts of the Pope and his Adherents, to subvert and suppresse it, whereby your Majestie will obtain a great accesse of Strength and Reputation, and your Subjects be much encouraged and enabled in a Parliamentary way, for your aid and assistance in restoring your Royall Sister and her Princely Issue to those Dignities and Dominions which belong unto them,5 and relieving the other distressed Protestant Princes who have suffered in the same Cause.
XVIII. That your Majestie will be pleased, by Act of Parliament, to cleer the Lord Kimbolton, and the five Members of the House of Commons,6 in such manner that future Parliaments may be secured from the consequence of that evill precedent.
XIX. That your Majestie will be graciously pleased to passe a Bill for restraining Peers made hereafter from Sitting or Voting in Parliament; unlesse they be admitted thereunto with the consent of both Houses of Parliament.
And these our humble desires being granted by your Majestie, we shall forthwith apply ourselves to regulate your present Revenue, in such sort, as may be for your best advantage; and likewise to settle such an ordinary and constant increase of it as shall be sufficient to support your Royall Dignitie in Honour and plenty, beyond the proportion of any former Grants of the Subjects of this Kingdom to your Majestie’s Royall Predecessors. We shall likewise put the Town of Hull into such hands as your Majestie shall appoint,7 with the Consent and Approbation of Parliament; and deliver up a just accompt of all the Magazine; and cheerfully imploy the uttermost of our Power and Endeavour in the reall expression and performance of our most dutifull and loyall affections to the preserving and maintaining the Royall Honour, Greatnesse, and Safetie of your Majestie and your Posterity.
His Majesties Answer to the Nineteen Propositions of Both Houses of Parliament.
Before we shall give you Our Answer to your Petition and Propositions, we shall tell you, That we are now cleerly satisfied, why the Method, which we traced out to you by Our Message of the twentieth of January,8 and have since so often pressed upon you, as the proper way to compose the Distractions of this Kingdom, and render it truly happy, hath been hitherto declined, and is at length thought fit to be lookt upon. We now see plainly (and desire that you, and all other Our good Subjects, should do so too) that the Caballists of this Businesse, have, with great prudence, reserved themselves untill due preparations should be made for their designe.
If they had unseasonably vented such Propositions, as the wisdom and modesty of your Predecessors never thought fit to offer to any of Our Progenitors, nor We in honour or regard to Our Regall Authoritie (which God hath intrusted Us with for the good of Our people) could receive without just indignation, (and such many of your present Propositions are) their hopes would soon have been blasted, and those persons to whom Offices, Honours, Power and Commands were designed, by such ill-timing of their Businesse, would have failed of their expectation, not without a brand upon the attempt. Therefore, before any of this nature should appear, they have (certainly with great wisdom in the conduct of it) thought fit to remove a troublesome rub in their way, the Law. To this end (that they might undermine the very foundations of it) a new Power hath been assumed to interpret and declare Laws without Us, by extemporary Votes, without any case judicially before either house, (which is in effect the same thing as to make Laws without Us) Orders and Ordinances made only by both houses (tending to a pure Arbitrary power) were pressed upon the people, as Laws, and their obedience required to them.
Their next step was to erect an upstart Authority without Us (in whom, and only in whom, the Laws of this Realm have placed that power) to command the Militia; (very considerable to this their designe). In further Order to it, they have wrested from Us Our Magazine and Town of Hull, and bestird Sir John Hotham in his boldfaced Treason.9 They have prepared and directed to the people, unprecedented Invectives against Our Government, thereby (as much as lay in their power) to weaken Our just Authoritie and due esteem amongst them. They have as injuriously, as presumptuously (though we conceive by this time Impudence itself is ashamed of it) attempted to cast upon Us Aspersions of an unheard of nature, as if We had favoured a Rebellion in Our own bowels. They have likewise broached new Doctrine, That we are obliged to passe all Laws that shall be offered to Us by both Houses (howsoever Our own Judgement and Conscience shall be unsatisfied with them) a point of policie, as proper for their present businesse, as destructive to all Our Rights of Parliament. And so with strange shamelesnesse will forget a clause in a Law still in force, made in the second yeer of King Henry the fifth, wherein both Houses of Parliament do acknowledge, That it is of the King’s Regalitie to grant or deny such of their Petitions as pleaseth himself. They have interpreted Our necessary Guard, legally assembled for the defence of Us and Our Children’s Persons, against a Traitor in open Rebellion against Us, to be with intent to levie war against Our Parliament (the thought whereof Our very soul abhorreth) thereby to render Us odious to Our people. They have so awed Our good Subjects with Pursuivants,10 long chargeable Attendance, heavie Censures, & illegal Imprisonments, that few of them durst offer to present their tendernesse of Our sufferings, their own just grievances, and their sense of those violations of the Law (the birthright of every Subject of this Kingdom) though in an humble Petition directed to both Houses; and if any did, it was stifled in the birth, called Sedition, and burnt by the common Hangman. They have restrained the attendance of Our ordinary and necessary houshold servants, and seized upon those small sums of Money which Our credit had provided to buy Us Bread; with Injunctions, That none shall be suffered to be conveyed or returned to Us to York, or any of Our Peers or Servants with Us; so that (in effect) they have blocked Us up in that County. They have filled the ears of the people with the noise of Fears and Jealousies (though taken up upon trust) tales of Skippers, Salt Fleets, and such like, by which alarms they might prepare them to receive such impressions as might best advance this Designe, when it should be ripe. And now, it seems, they think We are sufficiently prepared for these bitter Pills. We are in a handsome posture to receive these humble desires (which probably are intended to make way for a superfetation or a (yet) higher nature (if we had not made this discovery to you) for they doe not tell Us this is all). In them We must observe, That these Contrivers (the better to advance their true ends) disguised, as much as they could their intents, with a mixture of some things really to be approved by every honest man; others, specious and popular and some which are already granted by Us. All which are cunningly twisted and mixed with those other things of their main designe of ambition and private Interest, in hope that at the first view, every eye may not so cleerly discern them in their proper colours.
We would not be understood, That We intend to fix this Designe upon both, or either House of Parliament, We utterly professe against it, being most confidenct of the Loyaltie, good Affections, and Integritie of the Intentions of that great Bodie; and knowing well, That very many of both Houses were absent, and many dissented from all those particulars We complain of. But we do beleeve, and accordingly professe to all the world, That the malignity of this Designe (as dangerous to the Laws of this Kingdom, the Peace of the same, and Liberties of all Our good Subjects, as to Ourself and Our just Prerogative) hath proceeded from the subtill Informations, mischievous Practises, and evill Counsels, of ambitious, turbulent Spirits, disaffected to God’s true Religion, and the unity of the Professors thereof, Our Honour and Safety, and the publike Peace and Prosperitie of Our people, not without a strong Influence upon the very Actions of both Houses. But how faultie soever others are, We shall (with God’s assistance) endeavour to discharge Our dutie with uprightnesse of heart. And therefore since these Propositions come to Us in the name of both Houses of Parliament, We shall take a more particular notice of every of them.
If the 1. 2. 3. 4. 5. 9. 10. 15. 16. 19. Demands had been writ and printed in a tongue unknown to Us and Our people, it might have been possible We and they might have charitably beleeved the Propositions to be such, as might have been in Order to the ends pretended in the Petition, (to wit) The establishing of Our Honour and Safetie, the welfare and securitie of Our Subjects and Dominions, & the removing those Jealousies and Differences, which are said to have unhappily fallen betwixt Us and Our people, and procuring both Us and them a constant course of Honour, Peace, and Happinesse. But being read and understood by all, We cannot but assure Ourself, that this Profession joined to these Propositions, will rather appear a Mockery and a Scorn. The Demands being such, as we were unworthy of the trust reposed in Us by the Law, and of Our dessent, from so many great and famous Ancestors, if We could be brought to abandon that power which only can inable Us to perform what We are sworn to, in protecting Our people and the Laws, and so assume others into it, as to devest Ourself of it; although not only Our present condition (which it can hardly be) were more necessitous than it is, and We were both vanquisht, and a Prisoner, and in a worse condition than ever the most unfortunate of Our Predecessors have been reduced to, by the most criminall of their Subjects. And though the Bait laid to draw Us to it, and to keep Our Subjects from Indignation at the mention of it, The promises of a plentifull and unparalleled Revenue, were reduced from generalls (which signifie nothing) to clear and certain particulars, since such a Bargain would have but too great a resemblance of that of Esau’s, if we should part with such Flowers of Our Crown as are worth all the rest of the Garland, and have been transmitted to Us from so many Ancestors, and have been found so usefull and necessary for the welfare and security of Our Subjects, for any present necessitie, or for any low and sordid considerations of wealth and gain. And therefore all Men knowing that those accommodations are most easily made and most exactly observed, that are grounded upon reasonable and equall Conditions; We have great cause to beleeve, That the Contrivers of these had no intention of setling any firm Accommodation; but to increase those Jealousies, and widen that division, which (not by Our fault) is now unhappily fallen between Us and both Houses.
It is asked, That all the Lords, and others of Our Privy Councell, and such (We know now what you mean by such, but We have cause to think you mean all) great Officers and Ministers of State, either at home, or beyond the Seas, (for Care is taken to leave out no person or place, that Our dishonour may be sure not to be bounded within this Kingdom, though no subtill Insinuations at such a distance can probably be beleeved to have been the cause of Our distractions and Dangers) should be put from Our Privie Councell, and from those Offices and Imployments, unlesse they be approved by both Houses of Parliament, how faithfull soever We have found them to Us and the Publike, and how far soever they have been from offending against any Law, the only Rule they had, or any others ought to have to walk by. We therefore, to this part of this Demand, return you this Answer, That We are willing to grant that they shall take a larger Oath than you yourselves desire in your eleventh Demand, for maintaining not of any part but of the whole Law; and We have and do assure you, that We will be carefull to make election of such persons in those places of Trust, as shall have given good Testimonies of their abilities and integreities, and against whom there can be no just cause of exception, whereon reasonably to ground a diffidence, that if We have, or shall be mistaken in Our election, We have, and do assure you, That there is no man so neer to Us in place or affection, whom We will not leave to the Justice of the Law, if you shall bring a particular Charge and sufficient Proofs against him; and that We have given you (the best pledge of the effects of such a promise on Our part, and the best securitie for the performance of their duty on theirs) a Trienniall Parliament,11 the apprehension of whose Justice will, in all probability, make them wary how they provoke it, and Us wary how We chuse such, as by the discoverie of their faults may in any degree seem to discredit Our election. But that, without any shadow of a fault objected, only perhaps because they follow their conscience, and preserve the established Laws, and agree not in such Votes, or assent not to such Bills, as some persons, who have now too great an Influence even upon both Houses, judge or seem to judge, to be for the Publique good, and as are agreeable to that new Utopia of Religion and Government, into which they endevour to transform this Kingdom; (for We remember what Names, and for what Reasons you left out in the Bill offered Us concerning the Militia, which you had yourselves recommended in the Ordinance). We will never consent to the displacing of any, whom for their former merits from, and affection to Us and the publike, We have intrusted, since We conceive, That to do so, would take away both from the affection of Our Servants, the care of Our Service, and the honour of Our Justice. And We the more wonder, that it should be askt by you of Us, since it appears by the twelfth Demand, That yourselves count it reasonable, after the present turn is served, That the Judges and Officers, who are then placed, may hold their places quam diu se bene gesserint; and We are resolved to be as carefull of those We have chosen, as you are of those you would chuse, and to remove none, till they appear to Us to have otherwise behaved themselves, or shall be evicted by legall proceedings to have done so.
But this Demand (as unreasonable as it is) is but one link of a great Chain, and but the first round of that Ladder, by which Our Just, Ancient, Regall Power is endeavoured to be fetched down to the ground: For it appears plainly, That it is not with the persons now chosen, but with Our chusing, that you are displeased: For you demand, That the persons put into the places and imployments of those, who shall be removed, may be approved by both Houses; which is so far (as to some it may at first sight appear) from being lesse than the power of nomination, that of two things (of which We will never grant either). We would sooner be content, That you should nominate, and We approve, then you approve, and We nominate; the meer nomination being so far from being anything, That if We could do no more, We would never take the pains to do that, when We should only hazard those, whom We esteemed, to the scorn of a refusall, if they happened not to be agreeable, not only to the Judgement, but to the Passion, Interest, or Humour of the present major part of either House: Not to speak now of the great Factions, Animosities, and Divisions which this Power would introduce in both Houses, between both Houses, and in the severall Countreys, for the choice of persons to be sent to that place where that power was, and between the persons that were so chosen. Neither is this strange Potion prescribed to Us only for once, for the cure of a present, pressing, desperate Disease, but for a Diet to Us and Our Posteritie. It is demanded, That Our Councellors, all chief Officers both of Law and State, Commanders of Forts and Castles, and all Peers hereafter made (as to Voting, without which how little is the rest) be approved of (that is, chosen) by them from time to time; and rather than it should ever be left to the Crown (to whom it only doth and shall belong) if any place fall void in the intermission of Parliament; the major part of the approved Councell is to approve them. Neither is it only demanded, That We should quit the power and right Our Predecessors have had of appointing Persons in these places, but for Councellors, We are to be restrained as well in the number as in the persons, and a power must be annext to these places, which their Predecessors had not; and indeed if this power were past to them, it were not fit We should be trusted to chuse those who were to be trusted as much as We.
It is demanded, That such matters as concern the publike, and are proper for the high Court of Parliament (which is Our great and supream Councell) may be debated, resolved and transacted only in Parliament, and not elsewhere, and such as presume to do anything to the contrary shall be reserved to the Censure and Judgement of Parliament, and such other matters of State, as are proper of Our Privie Councell, shall be debated and concluded by such of Our Nobility (though indeed, if being made by Us, they may not Vote without the consent of both Houses, We are rather to call them Your Nobility) and others, as shall be from time to time chosen for that place, by approbation of both Houses of Parliament; and that no publike Act concerning the affairs of the Kingdom,which are proper for Our Privie Councell, may be esteemed of any validitie, as proceeding from the Royall Authority, unlesse it be done by the Advice and Consent of the major part of Our Councell, attested under their hands: Which Demands are of that Nature, that to grant them were in effect at once to depose both Ourself and Our Posteritie.
These being past, we may be waited on bare-headed; we may have Our hand kissed; The Stile of Majestie continued to Us; And the King’s Authoritie, declared by both Houses of Parliament, may be still the Stile of your Commands. We may have Swords and Maces carried before Us, and please Ourself with the sight of a Crown and Scepter, (and yet even these Twigs would not long flourish, when the Stock upon which they grew were dead) but as to true and reall Power We should remain but the outside, but the Picture, but the signe of a King. We were ever willing that Our Parliament should Debate, Resolve, & Transact such matters as are proper for them, as far as they are proper for them. And We heartily wish, that they would be as carefull not to extend their Debates and Resolutions beyond what is proper to them, that multitudes of things punishable, and causes determinable by the Ordinarie Judicatures, may not be entertained in Parliament, and to cause a long, chargeable, fruitlesse attendance of Our people, and (by degrees) draw to you as well all the causes, as all the faults of Westminster-Hall, and divert your proper businesse. That the course of Law be no wayes diverted, much lesse disturbed, as was actually done by the stop of the proceedings against a Riot in Southwark,12 by Order of the House of Commons, in a time so riotous and tumultuous, as much increased the danger of popular Insolencies, by such a countenance to Riots, and discountenance of Law. That you descend not to the leasure of recommending Lecturers to Churches, nor ascend to the Legislative power, by commanding (the Law not having yet commanded it) that they whom you recommend be received, although neither the Parson nor Bishop do approve of them; And that the Refusers (according to the course so much formerly complained of to have been used at the Councell Table) be not sent for to attend to shew cause. At least, that you would consider Conveniencie, if not Law, and recommend none, but who are well known to you to be Orthodox, Learned, and Moderate, or at least such as have taken Orders, and are not notorious depravers of the Book of Common Prayer; A care which appeareth by the Discourses, Sermons and persons of some recommended by you, not to have been hitherto taken, and it highly concerns both you in dutie, and the Common-wealth in the consequences, that it should have been taken; That neither one estate transact what is proper for two, nor two what is proper for three, and consequently, that (contrary to Our declared will) Our Forts may not be seized; Our Arms may not be removed; Our Moneys may not be stopt; Our legall Directions may not be countermanded by you, nor We desired to countermand them Ourself, nor such entrances made upon a Reall War against Us, upon pretence of all imaginarie War against you, and a Chimaera of necessitie. So far do you passe beyond your limits, whilest you seem by your Demand to be strangely straitened within them. At least We could have wisht you would have expressed, what matters you meant as fit to be transacted only in Parliament, and what you meant by only in Parliament. You have (of late) been perswaded by the new doctrines of some few, to think that proper for your debates, which hath not used to be at all debated within those walls, but been trusted wholly with Our Predecessors and Us, and to transact those things which without the Regall Authority, since there were Kings of this Kingdom, were never transacted. It therefore concerns Us the more that you speak out, and that both We and Our people may either know the bottom of your Demands, or know them to be bottomlesse. What concerns more the Publike, and is more (indeed) proper for the high Court of Parliament, than the making of Laws, which not only ought there to be transacted, but can be transacted no where else; but then you must admit Us to be a part of the Parliament, you must not (as the sence is of this part of this Demand, if it have any) deny the freedom of Our Answer, when We have as much right to reject what We think unreasonable, as you have to propose what you think convenient or necessary; nor is it possible Our Answers either to Bills, or any other Propositions should be wholly free, if We may not use the Libertie of every one of you, and of every Subject, and receive advice (without their danger who shall give it) from any person known or unknown, sworn or unsworn, in these matters in which the Manage of Our Vote is trusted by the Law, to Our own Judgement and Conscience, which how best to inform, is (and ever shall be) left likewise to Us; and most unreasonable it were that two Estates, proposing something to the Third, that Third should be bound to take no advice, whether it were fit to passe, but from those two that did propose it. We shall ever in these things which are trusted wholly to Us by the Law, not decline to hearken to the Advice of Our great Councell, and shall use to hear willingly the free debates of Our Privie Councell (whensoever We may be suffered to have them for sending for) and they shall not be terrified from that freedom, by Votes (and Brands of Malignants, and Enemies to the State, for advising what no Law forbids to advise) but We will retain Our Power of admitting no more to any Councell than the Nature of the businesse requires, and of discoursing with whom We please, of what We please, and informing Our Understanding by debate with any Persons, who may be well able to Inform and Advise Us in some particular, though their Qualities, Education or other Abilities may not make them so fit to be of Our sworn Councell, and not tie Ourself up not to hear anymore than twenty five (and those not chosen absolutely by Us) out of a Kingdom so replenished with Judicious and Experienced Persons in severall kindes. And though we shall (with the proportionable Consideration due to them) alwayes weigh the Advices both of Our Great and Privie Councell, yet We shall also look upon their Advices, as Advices, not as Commands or Impositions; upon them as Our Councellors, not as Our Tutors and Guardians, and upon Ourself as their King, not as their Pupill, or Ward. For whatsoever of Regality were by the Modesty of Interpretation left in Us in the first part of the second Demand, as to the Parliament, is taken from Us in the second part of the same, and placed in this new fangled kinde of Councellors, whose power is such, and so expressed by it, that in all publike Acts concerning the Affairs of this Kingdom, which are proper for Our Privy Councell (for whose Advice all publike Acts are sometimes proper, though never necessary) they are desired to be admitted joint Patentees with Us in the Regalitie, and it is not plainly expressed whether they mean Us so much as a single Vote in these Affairs. But it is plain they mean Us no more at most than a single Vote in them, and no more power than every one of the rest of Our Fellow Councellors; only leave to Us, out of their respect and duty, (and that only is left of all Our ancient Power) a Choice, whether these that are thus to be joined with (or rather set over) Us, shall be fifteen; or twenty five; and great care is taken that the Oath which these Men shall take, shall be such, in the framing the form of which (though sure We are not wholly unconcerned in it) We may be wholly excluded, and that wholly reserved to be agreed upon by both Houses of Parliament.
And to shew that no more Care is taken of Our safetie, than of Our Power, after so great indignities offered to Us, and countenanced by those who were most obliged to resent them: After Our Town and Fort13 kept from Us (from which, if it were no otherwise Ours than the whole Kingdom is, We can no more legally be kept out, than out of Our whole Kingdom, which sure yourselves will not deny to be Treason). Our Arms, Our Goods sent away, and Our Money stopt from Us, Our Guards (in which We have no other Intention than to hinder the end of these things from being proportionable to their beginnings) are not only desired to be dismissed before satisfaction for the Injurie, punishments of the Injurers, and care taken for Our future Securitie from the like. But it is likewise desired (and for this Law is pretended, and might as well have been for the rest, which yet with some ingenuitie are it seems acknowledged to be but Desires of Grace) that We shall not for the future raise any Guards or extraordinarie Forces, but in case of actuall Rebellion or Invasion, which if it had been Law, and so observed in the time of Our famous Predecessors, few of those Victories which have made this Nation famous in other parts, could have been legally atchieved, nor could Our blessed Predecessor Queen Elizabeth have so defended Herself in 88. And if no Forces must be levied till Rebellions and Invasions (which will not stay for the calling of Parliaments, and their consent for raising Forces) be actuall, they must undoubtedly (at least most probably) be effectuall and prevalent.
And as neither care is taken for Our Rights, Honour, nor safetie as a Prince, so Our Rights as a private Person are endeavoured to be had from Us, it being asked, that it may be unlawfull and unpunishable, not only to conclude, but even to treat of any Marriage with any Person for Our own Children, or to place Governours about them, without consent of Parliament, and in the intermission of those, without the consent of Our good Lords of the Councell, that We may not only be in a more despicable state than any of Our Predecessors, but in a meaner and viler condition than the lowest of Our Subjects, who value no libertie they have more, than that of the free Education and Marriage of their Children, from which We are asked to debar Ourself, and have the more reason to take it ill, that We are so, because for Our choice of a Governour for Our Son, and of a Husband for Our Daughter (in which the Protestant Religion was Our principall Consideration) We conceived We had reason to expect your present thanks, and the increase of your future trusts.
We suppose these Demands by this time to appear such as the Demanders cannot be supposed to have any such reall fear of Us as hath been long pretended, they are too much in the style, not only of equals, but of Conquerors, and as little to be intended for removing of Jealousies (for which end they are said to be asked, and that is not as Merchants ask at first much more than they will take, but as most necessary to effect it, which (if they be) God help this poor Kingdom, and those who are in the hands of such Persons, whose Jealousies nothing else will remove) which indeed is such a way, as if there being differences and suits between two persons, whereof one would have from the other serverall parcells of his ancient Land, he should propose to him by way of Accommodation, that he would quit to him all those in question, with the rest of his Estate, as the most necessary and effectuall means to remove all those suits and differences. But we call God to witnesse, that as for Our Subjects’ sake these Rights are vested in Us, so for their sakes, as well as for Our own, We are resolved not to quit them, nor to subvert (though in a Parliamentary way) the ancient, equall, happy, well-poised, and never-enough commended Constitution of the Government of this Kingdom, nor to make Ourself of a King of England a Duke of Venice, and this of a Kingdom a Republique.
There being three kindes of Government amongst men, Absolute Monarchy, Aristocracy and Democracy, and all these having their particular conveniencies and inconveniencies. The experience and wisdom of your Ancestors hath so moulded this out of a mixture of these, as to give to this Kingdom (as far as human prudence can provide) the conveniencies of all three, without the inconveniencies of any one, as long as the Balance hangs even between the three Estates, and they run jointly on in their proper Chanell (begetting Verdure and Fertilitie in the Meadows on both sides) and the overflowing of either on either side raise no deluge or Inundation. The ill of absolute Monarchy is Tyrannie, the ill of Aristocracy is Faction and Division, the ills of Democracy are Tumults, Violence and Licentiousnesse. The good of Monarchy is the uniting a Nation under one Head to resist Invasion from abroad, and Insurrection at home. The good of Aristocracie is the Conjuncion of Counsell in the ablest Persons of a State for the publike benefit. The good of Democracy is Liberty, and the Courage and Industrie which Libertie begets.
In this Kingdom the Laws are jointly made by a King, by a House of Peers, and by a House of Commons chosen by the People, all having free Votes and particular Priviledges. The Government according to these Laws is trusted to the King, Power of Treaties of War and Peace, of making Peers, of chusing Officers and Councellors for State, Judges for Law, Commanders for Forts and Castles, giving Commissions for raising men to make War abroad, or to prevent or provide against Invasions or Insurrections at home, benefit of Confiscations, power of pardoning, and some more of the like kinde are placed in the King. And this kinde of regulated Monarchie having this power to preserve that Authoritie, without which it would be disabled to preserve the Laws in their Force, and the Subjects in their Liberties and Proprieties, is intended to draw to him such a Respect and Relation from the great Ones, as may hinder the ills of Division and Faction, and such a Fear and Reverence from the people, as may hinder Tumults, Violence, and Licenciousnesse. Again, that the Prince may not make use of this high and perpetuall power to the hurt of those for whose good he hath it, and make use of the name of Publike Necessitie for the gain of his private Favourites and Followers, to the detriment of his People, the House of Commons (an excellent Conserver of Libertie, but never intended for any share in Government, or the chusing of them that should govern) is solely intrusted with the first Propositions concerning the Levies of Moneys (which is the sinews as well of Peace, as War) and the Impeaching of those, who for their own ends, though countenanced by any surreptitiously gotten Command of the King, have violated that Law, which he is bound (when he knows it) to protect, and to the protection of which they were bound to advise him, at least not to serve him in the Contrary. And the Lords being trusted with a Judicatory power, are an excellent Screen and Bank between the Prince and People, to assist each against any Incroachments of the other, and by just Judgements to preserve that Law, which ought to be the Rule of every one of the three. For the better enabling them in this, beyond the Examples of any of Our Ancestors, We were willingly contented to Oblige Ourself, both to call a Parliament every three yeers, and not to dissolve it in fiftie dayes, and for the present exigent, the better to raise Money, and avoid the pressure (no lesse grievous to Us than them) Our people must have suffered by a longer continuance of so vast a charge as two great Armies, and for their greater certaintie of having sufficient time to remedie the inconveniencies arisen during so long an absence of Parliaments, and for the punishment of the Causers and Ministers of them, We yeelded up Our Right of dissolving this Parliament, expecting an extraordinarie moderation from it in gratitude for so unexampled a Grace, and little looking that any Malignant Partie should have been encouraged or enabled to have perswaded them, first to countenance the Injustices and Indignities We have endured, and then by a new way of satisfaction for what was taken from Us, to demand of Us at once to Confirm what was so taken, and to give up almost all the rest.
Since therefore the Power Legally placed in both Houses is more than sufficient to prevent and restrain the power of Tyrannie, and without the power which is now asked from Us, we shall not be able to discharge that Trust which is the end of Monarchie, since this would be a totall Subversion of the Fundamentall Laws, and that excellent Constitution of this Kingdom, which hath made this Nation so many yeers both famous and happie to a great degree of Envie; since to the power of punishing (which is alreadie in your hands according to Law) if the power of Preferring be added, We shall have nothing left for Us, but to look on; since the incroaching of one of these Estates upon the power of the other, is unhappie in the effects both to them and all the rest; since this power of at most a joint Government in Us with Our Councellors (or rather Our Guardians) will return Us to the worst kinde of Minoritie, and make Us despicable both at home and abroad, and beget eternall Factions and Dissentions (as destructive to publike Happinesse as War) both in the chosen, and the Houses that chuse them, and the people who chuse the Chusers; since so new a power will undoubtedly intoxicate persons who were not born to it, & beget not only Divisions among them as equals, but in them contempt of Us as become an equall to them, and Insolence and Injustice towards Our people, as now so much their inferiors, which will be the more grievous unto them, as suffering from those who were so lately of a neerer degree to themselves, and being to have redresse only from those that placed them, and fearing they may be inclined to preserve what they have made, both out of kindnesse and policie; since all great changes are extreamly inconvenient, and almost infallibly beget yet greater changes, which beget yet greater Inconveniencies.
Since as great an one in the Church must follow this of the Kingdom; Since the second Estate would in all probabilitie follow the Fate of the first, and by some of the same turbulent spirits Jealousies would be soon raised against them, and the like Propositions for reconciliation of Differences would be then sent to them, as they now have joined to send to Us, till (all power being vested in the House of Commons, and their number making them incapable of transacting Affairs of State with the necessary Secrecie and Expedition; those being retrusted to some close Committee) at last the Common people (who in the meantime must be flattered, and to whom Licence must be given in all their wilde humours, how contrary soever to established Law, or their own reall Good) discover this Arcanum Imperii, That all this was done by them, but not for them, grow weary of Journey-work, and set up for themselves, call Parity and Independence, Liberty; devour that Estate which had devoured the rest; Destroy all Rights and Proprieties, all distinctions of Families and Merit; And by this meanes this splendid and excellently distinguished form of Government, end in a dark equall Chaos of Confusion, and the long Line of Our many noble Ancestors in a Jack Cade, or a Wat Tyler.14
For all these Reasons to all these Demands Our Answer is, Nolumus Leges Angliae mutari.15 But this We promise, that We will be as carefull of preserving the Laws in what is supposed to concern wholly Our Subjects, as in what most concerns Ourself. For indeed We professe to beleeve, that the preservation of every Law concerns Us, those of Obedience being not secure, when those of Protection are violated. And We being most of any injured in the least violation of that, by which We enjoy the highest Rights and greatest Benefits, and are therefore obliged to defend no lesse by Our Interest, than by Our Duty, and hope that no Jealousies to the contrary shall be any longer nourished in any of Our good people, by the subtill insinuations, and secret practices of men, who for private ends are disaffected to Our Honour and Safety, and the Peace and Prosperity of Our People. And to shew you, that no just indignation at so reproachfull offers shall make Us refuse to grant what is probable to conduce to the good of Our good People, because of the ill company it comes in, We will search carefully in this heap of unreasonable Demands, for so much as We may (complying with Our Conscience, and the duty of Our Trust) assent unto, and shall accordingly agree to it.
In pursuance of which Search, in the fourth Proposition, under a Demand which would take from Us that trust which God, Nature, and the Laws of the Land have placed in Us, and of which none of you could endure to be deprived, We find something to which We give this Answer, That We have committed the principall places about Our Children to persons of Qualitie, Integritie and Pietie, with speciall regard that their tender yeers might be so seasoned with the Principles of the true Protestant Religion, as (by the blessing of God upon this Our care) this whole Kingdom may in due time reap the fruit thereof. And as We have been likewise very carefull in the choice of Servants about them, that none of them may be such, as by ill Principles, or by ill Examples to crosse Our endeavours for their Pious and Vertuous Education, so if there shall be found (for all Our care to prevent it) any person about Our Children (or about Us, which is more than you ask) against whom both Houses shall make appear to Us any just exception, We shall not only remove them, but thank you for the Information. Only We shall expect, that you shall be likewise carefull that there be no underhand dealing by any to seek faults, to make room for others to succeed in their places.
For the fifth Demand, as We will not suffer any to share with Us in Our power of Treaties, which are most improper for Parliaments, and least in those Treaties in which We are neerliest concerned, not only as a King but as a Father, yet We do (such is Our desire to give all reasonable satisfaction) assure you by the word of a King, that We shall never propose or entertain any Treaty whatsoever for the marriage of any of Our Children, without due regard to the true Protestant Profession, the good of Our Kingdoms, and the Honour of Our Family.
For the sixth Demand, concerning the Laws in force against Jesuites, Priests, and Popish Recusants, We have by many of Our Messages to you, by Our voluntarie promise to you so solemnly made never to pardon any Popish Priest, by Our strict Proclamations lately published in this point, and by the publike Examples which We have made in that case since Our Residence at York, and before at London, sufficiently expressed Our Zeal herein. Why do you then ask that in which Our own Inclination hath prevented you? And if you can yet finde any more effectuall Course to disable them from Disturbing the State or eluding the Law by trusts or otherwise, We shall willingly give Our Consent to it.
For the seventh, concerning the Votes of Popish Lords, We understand that they in discretion have withdrawn themselves from the Service of the House of Peers, (and had done so when use was publikely made of their names to asperse the Votes of that House, which was then counted as Malignant as those (who are called Our Unknown and Unsworn Councellors) are now) neither do We conceive that such a positive Law against the Votes of any whose blood give them that right, is so proper in regard of the Priviledge of Parliament, but are content, that so long as they shall not be conformable to the Doctrine and Discipline of the Church of England, they shall not be admitted to sit in the House of Peers, but only to give their Proxies to such Protestant Lords as they shall chuse, who are to dispose of them as they themselves shall think fit, without any Reference at all to the Giver.
As to the desires for a Bill for the Education of the Children of Papists by Protestants in the Protestant Profession, many about Us can witnesse with Us, That We have often delivered Our Opinion, That such a Course (with God’s blessing upon it) would be the most effectuall for the rooting out of Popery out of this Kingdom. We shall therefore thank you for it, and encourage you in it, and, when it comes unto Us, do Our Dutie; and We heartily wish, for the publike good, that the time you have spent in making Ordinances without Us, had been imployed in preparing this and other good Bills for Us.
For the eighth, touching The Reformation to be made of the Church-Government and Liturgie, We had hoped, that what We had formerly declared concerning the same, had been so sufficiently understood by you and all good Subjects, that We should not need to have expressed Ourself further in it. We told you in Our Answers to your Petition presented to Us at Hampton-Court the first of December, That for any illegall Innovations which may have crept in, We should willingly concur in the removall of them. That if Our Parliament should advise Us to call a Nationall Synode, which may duely examine such Ceremonies as give just cause of Offence to any, We should take it into Consideration, and apply Ourself to give due satisfaction therein. That We were perswaded in our Conscience, That no Church could be found upon the Earth, that professeth the true Religion with more puritie of Doctrine, than the Church of England doth, nor where the Government and Discipline are jointly more beautified, and free from Superstition, than as they are here established by Law; which (by the grace of God) We will with Constancie maintain (while We live) in their Puritie and Glorie, not only against all Invasions of Poperie, but also from the Irreverence of those many Schismaticks and Separatists, wherewith of late this Kingdom and Our City of London abounds, to the great dishonour and hazard both of Church and State; For the suppression of whom We required your timely and active assistance. We told you in Our first Declaration,16 printed by the advice of Our Privie Councell, That for differences amongst ourselves for matters indifferent in their own nature concerning Religion, We should in tendernesse to any number of our loving Subjects very willingly comply with the advice of our Parliament, that some Law might be made for the exemption of tender Consciences from punishment, or Prosecution for such Ceremonies, and in such Cases, which by the judgement of most men are held to be matters indifferent, and of some to be absolutely unlawfull; Provided, that this case should be attempted and pursued with that modestie, temper, and submission, that in the meantime the peace and quiet of the Kingdom be not disturbed, the Decencie and Comelinesse of God’s Service discountenanced,nor the Pious, Sober, Devout actions of those Reverend Persons who were the first Labourers in the blessed Reformation, or of that time, be scandalled and defamed. And We heartily wish, that others, whom it concerned, had been as ready (as their duty bound them, though they had not received it from Us) to have pursued this Caution, as We were, and still are willing and ready to make good every particular of that Promise. Nor did We only appear willing to join in so good a Work, when it should be brought Us, but prest and urged you to it by Our Message of the fourteenth of February, in these words, And because His Majestie observes great and different troubles to arise in the hearts of His People, concerning the Government and Liturgie of the Church, His Majestie is willing to declare, That He will refer the whole consideration to the wisdom of his Parliament, which He desires them to enter into speedily, that the present distractions about the same may be composed: but desires not to be pressed to any single Act on His part, till the whole be so digested and setled by both Houses, that His Majesty may cleerly see what is fit to be left, as well as what is fit to be taken away. Of which We the more hoped of a good sucesse to the generall satisfaction of Our people, because you seem in this Proposition to desire but a Reformation, and not (as is daily preached for as necessary in those many Conventicles which have within these nineteene months begun to swarm; and which, though their Leaders differ from you in this opinion, yet appear to many as countenanced by you, by not being punished by you, (few else, by reason of the Order of the House of Commons of the ninth of September, daring to do it) a destruction of the present Discipline and Liturgie. And We shall most cheerfully give Our best assistance for raising a sufficient maintenance for preaching Ministers, in such course as shall be most for the encouragement and advancement of Pietie and Learning.
For the Bills you mention, and the Consultation you intimate, knowing nothing of the particular matters of the one (though We like the Titles well) nor of the manner of the other, but from an Informer (to whom We give little credit, and We wish no man did more) common Fame, We can say nothing till We see them.
For the eleventh, We would not have the Oath of all Privie Councellors and Judges straitened to particular Statutes of one or two particular Parliaments, but extend to all Statutes of all Parliaments, and the whole Law of the Land, and shall willingly consent that an enquirie of all the breaches and violations of the Law may be given in charge by the Justices of the King’s Bench every Terme, and by the Judges of Assize in their Circuits, and Justices of Peace at the Sessions to be presented and punished according to Law.
For the seventeenth, we shall ever be most ready, (and we are sorry it should be thought needfull to move us to it) not only to joine with any (particularly with the States of the united Provinces, of which We have given a late proofe in the Match of Our Daughter) for the defence and maintenance of Protestant Religion, against all designes and attempts of the Pope and his Adherents, but singly (if need were) to oppose with Our life and fortune all such Designes in all other Nations, were they joined: And that for Considerations of Conscience, far more than any temporall end of obtaining accesse of strength & reputation, or any naturall end of restoring our Royall Sister and her Princely Issue to their dignities and Dominions though these be likewise much considered by us.
For the eighteenth, It was not Our fault, that an Act was not passed to cleere the Lord Kimbolton, and the five Members of the House of Commons, but yours, who inserted such Clauses into both the Preamble and Act (perhaps perswaded to it by some who wish not that you should in anything receive satisfaction from Us) as by passing the Preamble we must have wounded Our Honour against Our Conscience, and by another Clause have admitted a Consequence, from which We could never have been secured, by declaring, That no Member of either House, upon any Accusation of Treason, could have hisPerson seized without the Consent of that House, of which he is a Member, though the known Law be, That Priviledge of Parliament extends not to Treason, and if it did, any Member (the House being for a short time adjourned, and so their Consent not being so had) how treasonable soever his Intentions were, how cleerly soever known, and how suddenly soever to be executed, must have fair leave given him to go on and pursue them, no way, how legall soever, after the passing such a Clause, being left to prevent it.
To conclude, We conjure you and all men to rest satisfied with the truth of Our Professions, and the Realitie of Our Intentions, not to ask such things as deny themselves; That you declare against Tumults, and punish the Authors; That you allow Us Our Propriety in Our Towns, Arms and Goods, and Our share in the Legislative Power, which would be counted in Us, not only breach of Priviledge, but Tyrannie and Subversion of Parliaments to deny to you. And when you shall have given Us satisfaction upon those persons who have taken away the One, and recalled those Declarations (particularly that of the six and twentieth of May) and those in the point of the Militia, (Our just Rights, wherein We will no more part with than with Our Crown, lest We inable others by them to take that from Us) which would take away the other, and declined the beginnings of a War against Us, under pretence of Our Intention of making One against you. As We have never opposed the first part of the thirteenth Demand, so We shall be ready to concur with you in the latter.
And being then confident that the Credit of those Men, who desire a generall Combustion, will be so weakened with you, that they will not be able to do this Kingdom any more harm, We shall be willing to grant Our generall Pardon, with such Exceptions as shall be thought fit, and shall receive much more joy in the hope of a full and constant Happinesse of Our People in the True Religion, and under the Protection of the Law, by a blessed Union betwen Us and Our Parliament (so much desired by Us) than in any such increase of Our Own Revenue (how much soever beyond former Grants) as (when Our Subjects were wealthiest) Our Parliament could have setled upon Us.
Henry Ferne, The Resolving of Conscience
Henry Ferne, 1602-1662
Upon this Question.
Whether upon such a Supposition or Case, as is now usually made (The King will not discharge his trust but is bent or seduced to subvert Religion, Laws, and Liberties) Subjects may take Arms and resist? and whether that case be now?
I. That no Conscience upon such a Supposition or Case can finde a safe and cleare ground for such resistance.
II. That no man in Conscience can be truly perswaded, that the resistance now made is such, as they themselves pretend to, that plead for it in such a case.
III. That no man in Conscience can be truly perswaded that such a case is now, that is, that the King will not discharge his trust but is bent to subvert, &c.
Whence it followeth,
That the resistance now made against the higher Power is unwarrantable, and according to the Apostle Damnable, Rom. 13.
Also that the shedding of bloud in the pursuit of this resistance is Murder.
By H. Fern D.D. &c
Woe unto them that call evil good, and good evill, that put darknesse for light, and light for darknesse, Isa. 5. 20.
O my soule come not thou into their secret. Gen. 49. 6.
Printed at Cambridge, and re-printed at
Henry Ferne, an Anglican divine, was born in York and educated at Cambridge University. He first came to Charles’s attention when he preached before the king at Leicester in July 1642. Charles was so pleased with Ferne he made him his chaplain extraordinary, no ordinary chaplaincy then being vacant. That autumn Ferne’s first pamphlet, “The Resolving of Conscience upon This Question,” one of the first tracts openly on the king’s side, was published. In it Ferne wrestled with the no longer theoretical dilemma of whether there was a right for a subject to resist a king and “whether that case be now?” The tract was published at Cambridge, York, and London in four further printings. It so incensed members of the Commons that Ferne was cited that Christmas Eve to answer for it. Instead he abandoned his living in Medbourne and took refuge with the royal party at Oxford where a “second edition” of the offending tract was published in 1643.
“The Resolving of Conscience” provoked a number of impressive replies. One by Charles Herle is reprinted below. Ferne attempted to address these, and in particular Herle’s, on 18 April 1643, with a rebuttal, “Conscience Satisfied,” far longer than his original essay. Other works followed earning for their author a reputation as the leading royalist writer of the period. In 1644 Ferne was one of five clergymen sent to defend Anglican church government in a debate with parliamentary clergy. After the surrender of the king in 1646 Ferne retired to Yorkshire. There he remained until summoned to the Isle of Wight in 1648 by Charles, where, on 28 November, he preached the last sermon the king would hear before his trial.
Ferne lived quietly in Yorkshire writing religious treatises until the Restoration when he was rewarded with the mastership of Trinity College, Cambridge. During the eighteen months he held this post he twice served as vice-chancellor of the university. He was created bishop of Chester in 1662 but died five weeks later.
The Resolving of Conscience, Touching the Unlawfulnesse of the Warre and Resistance Now Made Against the King.
Lamentable are the distractions of this Kingdome, and the more, because they gather strength from the name and authority of (that, which as it is of high esteeme with all, so should it be a remedy to all these our distempers) a Parliament: and from the pretended defence of those things that are most deare unto us, Religion, Liberties, Laws. Whereupon so many good people, that have come to a sense of Religion and godlinesse, are miserably carried away by a strange implicite faith to beleeve, that whatsoever is said or done in the name of a Parliament, and in the pretended defence of Religion, Liberties, Lawes, to be infallibly true, and altogether just.
But he that will consider, men are men, and would seeke a surer rule for his conscience than the Traditions or Ordinances of men taken hand over head, shall upon reasonable examination find upon what plausible but groundlesse principles, upon what faire but deceiving pretences, upon what grievous but causelesse imputations laid upon Majestie itself, a poore people are drawn into Arms against the duty and allegiance they owe to their Prince by the Laws of God and man. For directing the Conscience in such an examination this ensuing Discourse is framed as briefly and plainly as the matter will permit.
Conscience in resolving upon a question, first layes down the Proposition or Principle or Ground on which it goes; then it assumes or applies to the present case; then it concludes and resolves: as in this question, affirmatively for Resistance, thus, Subjects in such a case may arm and resist. But that case is now come. Therefore now they may and doe justly resist.
Or negatively against Resistance, either by denying the Principle: Subjects may not in such a case arm and resist; therefore now they doe not justly resist. Or by admitting the Principle and denying the Case; Subjects in such a case may arm and resist. But that case is not now. Therefore now they do not justly arm and resist.
What it is that Conscience is here to admit or deny, and how it ought to conclude and resolve, this ensuing Treatise will discover: which that it may more clearely appeare, we will premise,
First, that in the Proposition or Principle by the word Resistance is meant, not a denying of obedience to the Prince’s command, but a rising in arms, a forcible resistance. This though clear enough in the question, yet I thought fit to insinuate, to take off that false imputation laid upon the Divines of this Kingdom & upon all those that appear for the King in this cause, that they endeavoured to defend an absolute power in him, and to raise him to an Arbitrary way of government. This we are as much against on his part, as against Resistance on the subjects’ part. For we may & 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. For in these we have his will and consent given upon good advice, and to obey him against the Laws, were to obey him against himselfe, his sudden will against his deliberate will; but a far other matter it is to resist by power of arms, as is in the question implied, and as we see at this day to our astonishment, first the power of arms taken from the Prince by setting up the Militia,1 then that power used against him by an army in the field.
Secondly, we must consider that they which plead for Resistance in such a case as is supposed do grant it must be concluded upon, Omnibus ordinibus regni consentientibus that is, with the generall and unanimous consent of the Members of the two Houses of the representative body of the whole Kingdom. Also they yeeld it must be only Legitima defensio, a meer defensive resistance; and this also Conscience must take notice of.
Thirdly, it is considerable that in the supposition or case it is likewise granted by them, that the Prince must first be so and so disposed, and bent to overthrow Religion, Liberties Laws, and will not discharge his trust for the maintaining of them, before such a Resistance can be pretended to. And although the question is, and must be so put now, as that it seems to streighten the Case, and make it depend upon the supposall of the people; yet it so much the more enlarges the falshood of the Principle, for it plainly speaks thus; If subjects beleeve or verily suppose their Prince will change Religion they may rise in arms; whereas all that have pleaded for Resistance in case of Religion, did suppose another Religion enjoined upon the subject first. We will therefore endeavour to cleare all for the resolving of Conscience in these three generalls:
I. That no Conscience upon such a case as is supposed can find clear ground to rest upon for such resistance as is pretended to but according to the rules of Conscience, What is not of faith is sin: and, In doubtfull things the safer way is to be chosen. Conscience it will find cause to forbeare and to suffer, rather than resist; doubtfull, I say, not that a Conscience truly informed will not clearly see the unlawfulnesse of this Resistance but because no conscience can be truly perswaded of the lawfulnesse of it, and so that Conscience that resolves for it, must needs run doubtingly or blindly upon the worke.
II. That the resistance now used and made against the Prince is not such as they pretend to either for that generall and unanimous consent that should precede it, or that defensive way that should accompany it, according to their owne grants that plead for it and therefore Conscience cannot admit such a resistance as is made now adayes.
III. If Conscience could be perswaded, that it is lawfull in such a case to resist, and that this rising in arms is such a resistance as they say may in such a case be pretended to, yet can it never (if it be willing to know anything) be truly perswaded that such a case is now come, that is, That the King refuses to discharge his trust, is bent to overthrow Religion, &c. and therefore Conscience cannot but resolve, this Opposition and Resistance to be unlawfull, unwarrantable, and (according to the Apostle) damnable; and that people running into arms without sufficient warrant, commit murder if they shed bloud in the pursuit of this Resistance, and perish in their own sinne, if die in the cause.
First then, that the Principle is untrue upon which they go that resist, and that Conscience cannot find clear ground to rest upon for making resistance: for it heares the Apostle expressely say, Whosoever resists shall receive to themselves damnation: and it cannot find any limitation in Scripture that will excuse the Resistance of these dayes.
The exception or limitation that is made, is taken from the Persons resisting, and the Causes of resistance, thus, They that are private persons and doe resist upon any cause receive damnation, but the States or representative body of the whole people may resist upon such or such causes. But how will this satisfie Conscience, when every distinction or limitation made upon any place of Scripture, must have its ground in Scripture; this has only some examples in Scripture that come not home to the cause and some appearances of Reason; which are easily refuted by clearer Scripture and Reason.
The examples alleged, are, I. The people’s rescuing of Jonathan out of the hands of Saul. Answ. Here the people drew not into arms of themselves, but being there at Saul’s command, did by a loving violence and importunitie hinder the execution of a particular and passionate unlawfull command.
II. David’s resisting of Saul. Answ. 1. David’s guard that hee had about him was only to secure his person against the cut-throats of Saul, if sent to take away his life. 2. It was a meer defence without all violence offered to Saul; therefore he still gave place as Saul pursued, and did no act of hostility to him or any of his Army when they were in his power, I Sam. 26. But thirdly, because they gather out of the I Sam. 23.12 that David would have defended Keilah against Saul, if the Inhabitants would have been faithfull to him. Wee say that’s only an uncertaine supposition not fit to ground Conscience in this great point of resistance; also to this and all other David’s demeanours, in his standing out against Saul, we say his example was extraordinary; for he was anointed and designed by the Lord to succeed Saul, and therefore he might use an extraordinary way of safeguarding his person.
These are the chiefe examples. They make use also of the high Priests resisting the King in the temple, and Elisha’s shutting the doore against the King’s Messenger that came to take away his head; and the like; which speake not so much as the two former, having no appearance of such resistance as is implied in the question. But wee answer, 1. That of the high Priest is more pertinently applied to the Pope’s power of excommunicating and deposing Kings, than to this power of resisting now used; but truly to neither. For he did no more than what every Minister may and ought to doe if a King should attempt the administration of the Sacrament; that is, to reprove him, to keep the Elements from him. Ambrose Bishop of Milain withstood the Emperour at the entrance of God’s house, not by Excommunication, much lesse by force of arms, but by letting him understand hee was not fit for that place, there to be made partaker of the holy things, till he had repented of that outrage and bloodshed at Thessalonica. Upon which the Emperour withdrew.
The Priests here are said to thrust him out of the Temple; but we must note God’s hand was first upon him smiting him with leprosie, and by that discharging him of the Kingdome also. It is added in the text, yea himself also hasted to goe out. But enough of this.
2. Elisha’s example speaks very little. But let us thence take occasion to say, That Personall defence is lawfull against the sudden and illegall assaults of such Messengers; yea, of the Prince himself thus far, to ward his blowes, to hold his hands, and the like: not to endanger his person, not to return blows, no; for though it be naturall to defend a man’s self, yet the whole Common-wealth is concerned in his person, as we see in the Common-wealth of the creatures, one particular nature will defend itself against another, but yeeld to the universall.
If this be drawn from personal defence to the publick resistance now used, as usually they make the Argument thus; If the body naturall, then the body politick may defend itself, if a private person much more the whole State may; and they doe but shut the way up against the King that comes to destroy his Parliament, and take away their heads.
We answer: As the naturall body defends itself against an outward force, but strives not by a schisme or contention within itself; so may the body politick against an outward power, but not as now by one part of it set against the Head and another part of the same body; for that tends to the dissolution of the whole. Again; Personall defence may be without all offence, and does not strike at the order and power that is over us, as generall resistance by Armes doth, which cannot be without many unjust violences, and does immediately strike at that order which is the life of a Commonwealth. And this makes a large difference betwixt Elisha’s shutting the doore against this messenger, and their shutting up the way against the King by armed men; nor can they conclude upon such an intention in the King’s heart without the Spirit of Elisha. He professeth hee intends no violence to his Parliament, nor has he taken away the head of any of theirs that have fallen into his power, nor does desire any other punishment inflicted upon any that do oppose him, than what a Legall tryall shall adjudge them to, which no good Subject ought to decline.
Now let us see how Scripture excludes this and all other exceptions, giving no allowance to resistance, in regard of Persons or Causes, or other pretences, and this not only by examples, but by precept, conclusions, Resolutions, which are more safe.
First, we have the two hundred and fifty Princes of the Congregation, gathering the people against Moses and Aaron, Numb. 16.3 and perishing in this sin. If it be replied, the persons indeed were publick, but there was no cause for it; Moses and Aaron did not deserve it. I answer, but the other supposed they did, and that is now enough, it seems, to make people not only say to their Prince, You take too much upon you, but therefore to rise in armes also, which I hope will appeare to be without cause too in the end of this Treatise.
Secondly, see for the cause of Resistance, I. Sam. 8.1. there the people are let to understand how they should be oppressed under Kings, yet all that violence and injustice that should be done unto them is no just cause of resistance, for they have no remedy left them but crying to the Lord, vers. 18.
Thirdly, we have not only example, but resolution and conclusion out of Scripture. The people might not be gathered together either for Civill assemblies, or for warre, but by his command that had the power of the Trumpet, that is, the supreme as Moses was, Numb. 10.
Also when David had Saul and his army in his power, he resolves the matter thus, Who can stretch out his hand against the Lord’s annointed and be guiltlesse, I Sam. 26.9. If replied, now they intend not hurt to the King’s person; yet might not they as well have hurt his person in the day of battell, as any of them that were swept away from about him by the furie of the Ordnance, which puts no difference betwixt King and common souldiers?
This also I must observe concerning this point of resistance, out of the Old Testament (for from thence have they all their seeming instances). That it is a marvellous thing, that among so many Prophets reprehending the Kings of Israel and Judah for idolatry, cruelty, oppression, none should call upon the Elders of the people for this duty of Resistance.
But lastly, that place of the Apostle, Rom. 13 at first mentioned does above all give us a clear resolution upon the point, which now I shall free from all exceptions.
First, I may suppose, that the King is the Supreme, as S. Peter calls him; or the higher power, as S. Paul here, though it be by some now put to the question, as one absurdity commonly begets another to defend it; but I prove it, S. Peter’s distinction comprehends all that are in authority, The King as supreme, and those that are sent by him, 1 Pet. 2.12 in which latter rank are the two Houses of Parliament, being sent by him, or sent for by him, and by his Writ sitting there. Also by the Oath of Supremacy it is acknowledged, that there is no power above him without or within this Realm; and that he is in all Causes and over all persons supreme. Also acknowledged by the Petitions of the two houses addressed unto his Majesty, wherein they style themselves His loyall Subjects. But enough of this.
Secondly, in the text of the Apostle, all persons under the higher power are expressely forbidden to resist. For whosoever, in the second verse, must be as large as the every soul in the first, and the resistance forbidden here concerns all upon whom the subject is injoined there, or else we could not make these universalls good against the Papists, exempting the Pope and Clergy from the subjection.
Thirdly, in those dayes there was a standing and continuall great Senate, which not long before had the supreme power in the Romane State, and might challenge more by the Fundamentalls of that State, than our great Councell (I think) will, or can. But now the Emperour being Supreme, S. Peter calls him; or the higher power, as S. Paul here, there is no power of resistance left to any that are under him, by the Apostle. This for the Persons that should resist, all are forbidden. Now considering the Cause.
Fourthly, was there ever more cause of resistance than in those dayes? Were not the Kings then not only conceived to be enclined so and so, but even actually were enemies to Religion, had overthrown Lawes and Liberties? And therefore if any should from the Apostle’s reasons that he gives against resistance in the 3, 4, 5, verses, (For Rulers are not a terrour to good works but evill, and he is the minister of God to thee for good) reply, That Rulers so long as they are not a terrour to the good, but minister for our good, are not to be resisted. The consideration of those times leaves no place for such exception, because the Powers then (which the Apostle forbids to resist) were nothing so, but subverters of that which was good and just.
If it be replied, That prohibition was temporary and fit for those times, as it is said by some, I answer, 1. This is a new exception never heard of (I think) but in these times. 2. It is groundlesse, and against the Text, for the reasons of the prohibition in the 3, 4, 5, 6, verses, are perpetuall, from that order, that good, for which the powers are ordained of God, which will be of force as long as there is government, and will alwayes be reasons against resistance; because resistance (though it be made against abused powers as then they were) doth tend to the dissolution of that order, for which the power itself is set up of God. By which also that other distinction of theirs is made void, when as they reply, as they think, acutely, That they resist not the power, but the abuse of the power.
It is also answered by some, that the Emperors then were absolute Monarchs, and therefore not to be resisted. I answer: They did indeed rule absolutely and arbitrarily, which should have, according to the principles of these dayes, been a stronger motive to resist. But how did they make themselves of Subjects such absolute Monarchs, was it not by force and change of the government, and was not the right of the people & Senate (according to the Principles of these days) good against them with as much or more reason, than the right of the people of this Land is against the succession of this Crown descending by three Conquests?2 And this I speak not to win an Arbitrary power or such as Conquerours use, unto this Crown, but only to shew that Resistance can be no more made against the Kings of England, than it could against those Emperours. Nay, with lesse reason against them, than these.
Lastly, it is replied, That Christian Religion was then enacted against by Law; but the Religion contended for is established by Law. I answer: But is the Religion established denied to any that now fight for it? Shall the Apostle’s prohibition be good against Christians in the behalfe of actuall Tyrants persecuting that Religion, and not against Subjects freely enjoying the Religion established? Or may Protestants upon a jealousie resist a Protestant King professing the same Religion, and promising to conserve it entire to them?
2. The prohibition does not only concern Christians, but all the people under those Emperours, and not only Religion was persecuted, but liberties also lost, the people and Senate were enslaved by Edicts and Lawes then inforced upon them, & they (according to the principles of these dayes) might resist, notwithstanding the Apostles’ prohibition, & the Laws then forced upon them; or else the State, as they usually say, had not means to provide for its safety. Thus one fancy of theirs thwarts another, because both are groundless. But more anon of those means of safty they suppose to be in every State, by the power of Resistance.
Hitherto of Scripture, which is most powerful against Resistance, in the prohibition & the reasons of it, by which Conscience will clearly see, it can have no warrant from Scripture for Resistance. Now let us try what Reason can enforce.
For proving this Power of resistance, there is much speech used about the Fundamentals of this government, which because they lie low and unseen by vulgar eyes, being not written Lawes, the people are easily made to believe they are such as they (that have power to build new Laws upon them) say they are. And indeed none so fit to judge of them as they. Yet this we know, and every one that can use his reason knows, that the Fundamentalls must needs be such as will bear the settled government of this Land, such as are not contradictory to the written established Laws: but both the government we see used in this Land, and the written Laws which we reade, must have a correspondency and analogie of reason to these, Fundamentalls, and they to these.
Well then, they that plead for power of resistance in the people, lay the first ground work of their Fundamentals thus: Power is originally in and from the people and if when by election they have intrusted a Prince with the power, he will not discharge his trust, then it falls to the people; or, as in this Kingdom, to the two houses of Parliament (the representative body of the people) to see to it; they may reassume the power.
This is the bottom of their Fundamentals as they are now discovered to the people. But here we may take notice by the way, that however the Fundamentals of this Government are much talked of, this is according to them the Fundamentall in all Kingdomes and Governments; for they say power was everywhere from the people at first, and so this will serve no more for the power of resistance in England, than in France or Turkey. But if this must be a Fundamentall, it is such a one as upon it this Government cannot be built, but Confusion and Anarchy may readily be raised; as shall appear by the clearing of these two particulars, Whether the power be so originally and chiefly from the people as they would have it; then, Whether they may upon such causes reassume that power.
First, of the originall of power, which they will have so from the people, that it shall be from God only by a kind of permissive approbation, as we may see by the Observator, and all other that plead for this power of resistance. Wee must here distinguish what the writers of the other side seeme to confound, to wit, the Power itselfe, (which is a sufficiency of authority for command and coercion in the governing of a people) from the designing of the Person to beare that power, and the qualification of that power according to the divers wayes of executing it in severall forms of government; and then we grant that the designing of the person is sometimes from the people by choice, and that the power of the Prince receiving qualification by joint consent of himselfe and the people, is limited by the laws made with such consent; but the power itself is of God originally and chiefly, which we prove by Scripture and Reason.
First, by such places of Scripture as plainly shew an ordaining and appointing, rather than a permission or approbation:
1. The Apostle speaks it expresly, The powers are of God, Rom. 13.1 and the ordinance of God, v. 2. S. Peter indeed saith, every ordinance of man, I Epist. 2. but of man there, and of God here is much differing; there it is ἀνθρωπίνῃ, of man, subjective, that is, every ordinance or power set up amongst men; but here it is ἀπὸ θεοῦ, of God, causaliter,3 that is, from him, his ordinance; and if in that ἀνθρωπίνῃ there be implied any creation or causality, or invention of man, it respects the qualification of the power according to the forms of severall governments and offices in them, which are from the invention of man; it does not make the power itselfe the creation of man, which is the constitution and ordinance of God. And men are not only naturally bent to society, but also are bound, as they are reasonable creatures, to set up and live under government, as under an order of that providence by which the world is governed.
2. He is called the minister of God, v. 4. but if so from the people and no otherwise from god than they would have him, he should be minister populi rather; he is indeed their minister for their good, which makes the people to be the end of this governing power, not the fountain and originall of it. Therefore the necessity of subjection urged in v. 5. has a double ground the ordinance of God, whose ministers Rulers are, there’s the fountain and originall of power to govern; then the people’s good, upon which Rulers ought to attend, that is an end of the governing power.
3. To the same purpose speake those other places, by me Kings reign: and, I have said, ye are Gods, Psa. 82. in relation to which our Saviour saith, Joh. 10. they are called Gods to whom the word of God came, that dixi, that word is the command, the issuing out as it were the commission for the setting up of a governing power among the people.
These places cannot be satisfied with that poor part, they on the other side leave to God in the setting up of power for the governing of men, that is, to approve it when the people have created or invented it. Indeed if we consider the qualification of this governing power, and the manner of executing it according to the severall formes of government, we granted it before to be the invention of man, and when such a qualification or forme is orderly agreed upon, we say it hath God’s permissive approbation.
And therefore the imputation is causeless which the Pleaders on the other side doe heedlessely and ignorantly lay upon us Divines, as if wee cried up Monarchy, and that only government to be jure divino. For although Monarchy has this excellency, that the Government God set up over his people in the person of Moses, the Judges, and the Kings, was Monarchicall; yet we confesse that neither that, nor Aristocracy, or any other forme is jure divino, but we say the power itself, or that sufficiency of Authority to govern, which is in Monarchy or Aristocracie, abstractly considered from the qualifications of either form, is an efflux or constitution subordinate to that providence, an ordinance of that Dixi, that silent Word by which the world was at first made, and is still governed under God.
Secondly, as this appeares by the former places of Scripture, so is it also suitable to Reason. Because God doth govern all creatures, Reasonable as well as Unreasonable; the inferiour or lower world he governs by the heavens or superiour bodies, according to those influences and powers he has put into them; and the reasonable creatures, Men, he governs too by others set up in his stead over them: for which they are called Gods, because in his stead over the people: and the powers are said to be ὑπὸ θεοῦ τεταγμέναι, Rom. 13.1. not only ἀπὸ θεοῦ from God, but also as orders ranked under him too, subordinate to that providence by which all creatures are governed.
These his Ministers he sometimes designed immediately by himself, as Moses, the Judges, Saul, David, &c. Now he designes his Vicegerents on earth mediately as by election of the people, by succession or inheritance, by conquest, &c. To conclude, The power itselfe of government is of God, however the person be designed, or that power qualified according to the severall formes or government by those Lawes that are established, or those grants that are procured for the people’s security. Thus much of the originall of Power.
Now we come to the Forfeiture, as I may call it, of this power. If the Prince, say they, will not discharge his trust, then it falls to the people or the two Houses (the representative body of the people) to see to it, and to reassume that power, and thereby to resist. This they conceive to follow upon the derivation of power from the people by vertue of election, and upon the stipulation or covenant of the Prince with the people, as also to be necessary in regard of those meanes of safety, which every State should have within itself. We will examine them in order, and shall find the arguments inconsequent.
Concerning the derivation of power, we answer, First, if it be not from the people, as they will have it, and as before it was cleared, then can there be no reassuming of this power by the people; that’s plaine by their own argument.
Secondly, if the people should give the power so absolutely as they would have it, leaving nothing to God in it but approbation, yet could they not therefore have right to take that power away. For many things which are altogether in our disposing before we part with them, are not afterward in our power to recall; especially such in which there redounds to God an interest by the donation as in things devoted, though afterward they come to be abused. So although it were, as they would have it, that they give the power and God approves; yet because the Lord’s hand also and his oile is upon the person elected to the Crown, & then he is the Lord’s anointed, & the minister of God, whose hands of the people which were used in lifting him up to the Crown, may not again be lifted up against him, either to take the Crown from his head, or the sword out of his hand. This will not a true informed Conscience dare to doe.
Thirdly, how shall the Conscience be satisfied that this their argument, grounded upon election and the derivation of power from the people, can have place in this kingdom, when as the Crown not only descends by inheritance, but also has so often been setled by Conquest in the lines of Saxons, Danes, and Normans? In answering to this they look beyond all these, and say, the right is still good to the people by reason of their first election. I answer, So then that first election must be supposed here, & supposed good against all other titles, or else this power of resistance falls to the ground. It is probable indeed that Kings at first were by choice here as elswhere; but can Conscience rest upon such remote probabilities for resistance, or think that first election will give it power against Princes that do not claim by it. We tell them the Roman Emperours were not to be resisted, Rom. 13.2. They reply, as we had it above, that they were absolute Monarchs. But how came they of subjects to be absolute Monarchs? Was it any otherwise than by force and arms? The way that the Saxons, Danes, and Normans made themselves masters of this people, & was not the right of the people as good against them for the power of resistance by virtue of the first election, as well as of the people of this Land, against their Kings after so many conquests? This I speak, not as if the Kings of this Land might rule as conquerors, God forbid. But to shew this slender plea of the first election can no more take place against the Kings of this Land, than it could against the Roman Monarchs, especially according to their argument, that hold all power originally from the people, & that (as we observed above) to be the fundamentall of all government. Therefore whether Kings were in this Land at first by election or no, we acknowledge what belongs to the duty of a Prince in doing justice and equity. What Grants also, Lawes, Priviledges have since those conquests beene procured or restored to the people, unto all those the King is bound. But yet not bound under forfeiture of this power to the people, which now comes to be examined in that capitulation or convenant he is said to enter with the people.
In the next place therefore, That capitulation or covenant, and the oath which the Prince takes to confirme what he promiseth, are so alledged, as if the breach or non-performance on the Prince’s part were a forfeiture of his power. But we answer, the words capitulation or covenant are now much used to make men believe the King’s admittance to the Crown is altogether conditionall, as in the meerly elective kingdoms of Polonia, Swedeland, &c. whereas our King is King before he comes to the Coronation, which is sooner or later at his pleasure, but always to be in due time in regard of that security his people receive by his taking the oath, and he again mutually from them, in which performance there is something like a covenant, all but the forfeiture. The King there promises and binds himself by oath to performance. Could they in this covenant shew us such an agreement between the King and his people, that in case he will not discharge his trust, then it shall be lawfull for the States of the kingdome by armes to resist, and provide for the safety thereof, it were something.
If it be said, that so much is implied in the first election; we answer, we examined that slender plea of the first election above, as it was thought to be a derivation of power. Now as it is thought to have a covenant in it, we say, that usually in all Empires the higher we arise, the freer we find the Kings, & still downwards the people have gained upon them. For at first when people chose their Rulers, they did as Justine in the beginning of his history observes, resign themselves to be governed by such, of whose prudence and moderation they had experience, and then, arbitria Principum pro legibus erant, the will and discretion of the Prince was law unto the people; but men were men though in God’s place, and therefore for the restraint of that power, with consent of the Prince, such Lawes have beene still procured by the people, as might make for their security.
Now from a promise the king makes for doing justice (the duty of every Prince) for the continuing those priviledges, immunities, that have been granted or restored to the people, and for the observing of those laws that have been established with the Prince’s consent, & from that oath (by which for the greater security of the people he binds himself to the performance of the premises) to infer a great obligation lieth upon him, is right, but to gather thence a forfeiture of his power upon the not performance, is a plain but dangerous inconsequent argument.
And though such argument may seem to have some force in States meerly elective and pactionall, yet can it never be made to appear to any indifferent understanding, that the like must obtain in this kingdom. And to this purpose Phil. Pareus excuseth what his father had written more harshly upon Rom. 13. in the point of resistance, that it was to be understood of elective and pactionall government, not to the prejudice of England, or such Monarchies. For where the King, as it is said, never dies, where he is King before oath or coronation, where he is not admitted upon any such capitulation as gives any power to the people, or their representative body, as is pretended to; Nay, where that body cannot meet but by the will of the Prince, and is dissoluble at his pleasure; that there in such a State, such a power should bee pretended to, and used against the Prince, as at this day; and that according to the Fundamentalls of such a State, can never appeare reasonable to any indifferent judgement, much lesse satisfie Conscience in the resistance that is now made by such a pretended power.
What then shall we say? Is the King not bound to perform? Yes, by all means. Or has he not a limited power according to the Laws? Yes, What then if he will take to himself more power, or not perform what he is bound to? Suppose that (though thanks be to God we are not come to that) then may the Subjects use all fair means as are fit to use, cryes to God, Petitions to the Prince, denialls of obedience to his unlawfull commands, denialls of subsidy, aid, &c. But are they left without all means to compell by force and resistance? This however it may at first sight seem unreasonable to the people, and very impolitick to the Statesman, yet has Scripture forbidden it, as before was plainly shewed, and so doth Reason too, as will appear in the examination of their last proof they make for reassuming this power and resisting, from that necessity of means of safety, which every State is to have within itself: Of which now.
In the last place it is thus reasoned, Were it not so that the two Houses might take and use this power, the State should not have means to provide for its own safety, when the King shall please to desert his Parliament, deny his consent to their bills, abuse His power, &c. So they.
When right and just will not defend a thing then Necessity is usually pleaded; as if, because Salus populi in a good sense is Suprema lex, everything must be honest which is Sparta Utile, imagined to conduce to the proposed end. We answer therefore.
1. They have many weapons sharpened for this resistance at the Philistines’ forge, arguments borrowed from the Roman Schools, among them this is one, the very reason that is made for the Pope’s power of curbing or deposing Kings in case of Heresie. For if there be not that power in the Church, say they, then in case the Civill Magistrate will not discharge his trust, the Church has not means for the maintenance of the Catholike faith and its own safety. Well, as we reply to them, the Church has means of preserving the faith, such as God has appointed, though not that of one visible head, which though at first seems plausible for preserving the Unity of faith, yet has experience shown it, to be indeed the means to bring much mischief upon the Church. So to the other we say, The State has means of preservation such as the Law has prescribed, though not such as are here pretended to in this power of resistance; which though seemingly plausible, yet true reason will conclude them dangerous, and at this day, God knows, we see it. Of this in the 4. answer more particularly.
2. If every State has such means to provide for its safety, what means of safety had the Christian Religion under the Roman Emperours in and after the Apostles’ times? Or the people then enslaved, what means had they for their Liberties? Had they this of resistance? Tertullian in his Apology sayes, the Christians had number and force sufficient to withstand, but they had no warrant; and the Apostle expressely forbids them, and all other under the higher power, to resist.
If it be replied, as it was above touched, That things being so enacted by Law, it was not lawfull for them to resist. I answer, But it is known that not only those Edicts which concerned Christian Religion, but also all other that proceeded from those Emperours and enslaved the people, were meerly arbitrary and enforced upon the Senate, and that the Senate did not discharge their trust in consenting to them, and therefore according to the former position the people might resist, notwithstanding the Apostle’s prohibition, or else no means of safety left in that State.
So would it be in this State, if at any time a King that would rule arbitrarily, as those Emperours did, should by some means or other work out of two Houses the better affected, and by the Consent of the Major part of them that remain, compasse his desires; might the people then resist? The Apostle forbids it to them as well as to the Romans in such a case: if so, where are these means of safety by this Power of resistance? Or are these means of safety extinct in the Consent of the Senate, or the two Houses? No, the people will tell them they discharge not their trust, they chose them not to betray them, enslave them; but according to the principles now taught them, they might lay hold upon this power of resistance, for their representative body claims it by them.
Thirdly we answer, We cannot expect absolute means of safety and security in a State, but such as are reasonable; and such are provided, especially in the fundamentalls of this Government, by that excellent temper of the three Estates in Parliament, there being a power of denying in each of them, and no power of enacting in one or two of them without the third; which as it is for the security of the Commonwealth (for what might follow if the King and Lords without the Commons, or these and the Lords without the King, might determine, the evils of these dayes do shew) so is this power of denying, for the security of each State against other, of the Commons against the King and Lords, of the Lords against them: and must the King trust only, and not be trusted? Must not he also have his security against the other, which he cannot have but by Power of denying? This is that Temper of the three Estates in Parliament, the due observing whereof, in the moderate use of this Power of denying, is the reasonable means of this State’s safety. But now not only the name of Parliament, which implies the three Estates, is restrained usually to the two Houses, but also that Temper is dissolved. I need not speak it, the distractions and convulsions of the whole Commonwealth, as the distempers in a naturall body, do sufficiently shew such a dissolution, and what’s the cause of it.
If it be replied, as it is, for the reasonablenesse of these means of safety, through that Power of resistance, and the finall trust reposed in the representative body of the people, That many see more than one, and more safety in the judgement of many than of one. Answ. True. But 1. Conscience might here demand for its satisfaction, Why should an hundred in the House of Commons see more than three hundred; or twenty in the Lords House, more than sixty that are of different judgement and withdrawn?
2. Reason doth suppose, That the Prince, though one, sees with the eyes of many, yea with their eyes who are of different judgement from him, for which his Houses of Parliament are his great Councell to present to his eyes the differences of things with the reasons of them; and albeit he sometimes dissents from the Major or prevailing part, because he is convinced in his own judgement they seek themselves not his or the publike good, or for other reasons that may perswade him against their Vote, yet have all times thought good to have Kings, and to reduce the judgement of many unto one. The Government which God made choice of to set up among his people was Monarchicall still, first in Moses, then in the Judges, then in the Kings; yea generally all Authors yield, and experience has taught it, That Monarchy is a better government than Aristocracy, because the Tyranny and Miscarriage of one, sometime happening in a Monarch, is nothing so dangerous as Oligarchy, Faction, and Division usually incident to Aristocracy or the Government by many equals. Again, as all times have thought it reasonable to have Monarchy, which settles the chief power and finall judgement in One; so will there be alwayes sufficient reason to withhold the King from a willfull deniall of his Consent to the free and unanimous Vote of his Houses. He cannot but see there will alwayes be some necessary good accrewing to him by his Parliament, that will keep him in all reason from doing so, and no cases can be put or inconveniences feared upon his power of denying, but greater and more eminent will appear upon his not having it, as has been insinuated, and now do follow.
Fourthly therefore and lastly we answer. Such power of resistance would be no fit means of safety to a State, but prove a remedy worse than the disease. This is very plain by the drift of the Apostle’s reasons which he gave against resistance, in the 3, 4, 5, 6, Vers. of the 13. to the Romans, in which we may consider, that, although the Powers then were altogether unjust, tyrannicall, subverters of true Religion, nothing answerable to the end for which the Governing power is ordained, yet doth the Apostle draw his reasons against the resisting of them, from that good, that justice, that order for which God hath set up the higher powers; to insinuate, that the resisting of the higher powers, even when they are so, does tend to the overthrow of that order which is the life of a Commonwealth; and this not only because there is still order under tyranny, but chiefly because, if it were good and lawfull, to resist the power, when abused, it would open a way to the people upon the like pretences to resist and overthrow even Powers duely administered for the executing of wrath upon them that do evill.
I enter this discourse, not to cast the least blemish upon Parliaments (which are an only remedy for distempers of the Kingdom) not to reflect upon the intentions of those that are yet resident in that high Court, (unto God, the judge of all, they stand or fall) not to raise jealousies, but to settle Conscience, and in the way of reasoning to shew according to the Apostle’s reasons what dangers and evils may ensue upon this power of resistance.
For first of all, This power of resistance, if admitted and pursued may proceed to a change of Government, the Principles that now are gone upon, and have carried it so farre as we see at this day, may also lead it on to that greatest of evils. And I have heard and seen it defended by the example of the Low-countreys; how they excuse it, thoroughly I examine not, but this I am sure they can say, That their Prince, succeeding in the right of the Duke of Burgundy was admitted upon other conditions than the Kings of England are. Also that a contrary Religion was enforced upon them by a terrible Inquisition, whereas they that do resist the higher Powers here, do freely enjoy their Religion, and have the Prince’s promise and Protestation for it.
Secondly, This power of resistance when used, and pursued, is accompanied with the evils of Civill warre. Former times shew it, and how little was gained by it beside the expence of bloud; as when all was referred to the rule and disposing of the 12 Peers, how long lasted it? What security had the State by it? And at this day we feel and groan under the evils brought upon us through this power of resistance, the Law silenced, the Property and Liberty of the Subject every where invaded: and the Lord knows when or how we shall be restored to them, or better secured in them by this way. Thirdly, We see the danger, if (as it is now said, for the justifying of this power of resistance, The King will not discharge His trust, and therefore it falls to the representative body of the people to see to it, so) the People being discontented, and having gotten power shall say, The Members of the two houses do not discharge the trust committed to them, they do not that for which they were chosen and sent for, then may the multitude by this rule and principle now taught them take the Power to themselves, it being claimed by them and say to them as Numb. 16. Ye take too much upon you, or, as Cade and Tylar,4 boast themselves Reformers of the Commonwealth, overthrow King and Parliament, fill all with rapine and confusion, draw all to a Folkmoot, and make every Shire a severall Government. These are Dangers and Evils not conceived in the fancy, but such as reason tells us may follow, and experience hath often, and this day doth shew us, do arise upon this Power of resistance, and for the preventing of which, the Apostle gave his reasons against resisting even of abused Powers, as we heard above. Lastly therefore, Seeing some must be trusted in every State, ’tis reason the highest and finall trust should be in the higher or supreme Power with whom next to himself God hath intrusted the whole Kingdom, all other that have power and trust, having it under him as sent by him; Good reason I say that the supreme Power (which is worth 10,000 of the Subjects) should have the best security on its side, for as much as Order, the life of a Commonwealth, is so best preserved, and not so endangered by Tyranny as by factions, division, tumults, power of resistance on the Subject’s part, and this is according to the drift of the Apostle’s reasons against resistance, as before they were laid down.
Well now unto all that hath hitherto been said from Scripture and Reason let Conscience adde the Oath of Supremacy and Allegeance, also the late Protestation,5 and consider what duty lies upon every Subject by the former to defend the King’s Person and right against what power soever, and how by the latter he hath protested and undertaken before Almighty God, in the first place to defend the same; and then what can Conscience conclude from the Premises? That the Prince hath his power for the good of his people? True, but that power cannot be prevalent for the good and protection of his people, unlesse it be preserved to him intire, unlesse he hath the power of Deniall, and the chiefe command of Arms; or that the Prince hath a limited power, according to the Laws established? True, but if Conscience be perswaded he does not hold himselfe within those bounds so fixed, can it be perswaded also that the people may re-assume that power they never had? Or take that sword out of his hand that God hath put into it? No, Conscience will look at that Power as the Ordinance of God, and the abuse of that Power as a judgment and scourge of God upon the people, and will use not Arms to resist the Ordinance under pretence of resisting the abuse, but cries and prayers to God, petitions to the Prince, denials of obedience to his unjust commands, denialls of Subsidies, aids, and all fair means that are fit for Subjects to use, and when done all, if not succeed, will rather suffer than resist: so would a truly informed Conscience resolve, were the Prince indeed what he is supposed to be, and did he do indeed as the people are made to fear and believe he will do.
Hitherto we have been in the examination of the principle upon which they go that plead for resistance, and we have found both Scripture and Reason speak plainly against the resisting even of abused Powers, professed enemies to Religion, actuall subverters of the people’s liberties, how much more against the resisting of a Prince that professeth the same Religion which we freely enjoy, promiseth the maintaining of that and our liberties, only upon a supposall he will not stand to his word, will overthrow all.
This however it may seem lesse reasonable to the Statist in the way of policy, permitting as little as he can to the goodnesse of the Prince or the providence of God for the safety of the State; yet ought it to satisfie a Christian in the way of Conscience, which when it comes to a desire of being safe, will not rest till it have a sure ground, which here it hath against resistance laid down by Scripture and Reason, even the Apostle’s reasons so powerfull against resistance.
The summe of all is this, Conscience hears the Apostle expressely forbid all under the higher power to resist, findes no other clear Scripture to limit it, findes that the limitations given will not consist with it, for the reasons of them (that are drawn from the Election of the people, and the Covenant supposed therein, from the necessity of means of safety in every State to provide for itselfe) were as strong in the Romane State as any, nay, are supposed by those that urge them, to be the fundamentalls of every State: and so resistance is forbidden as well here, as there in the Romane State, which is also cleared by the Apostle’s reasons, shewing the power of resistance cannot be the means of safety, but strikes at Order and power itselfe, though made against tyrannicall and abused powers, as before often insinuated. Therefore Conscience will not dare to go against the Apostle’s expresse prohibition, lest it fall into the judgement denounced by him.
But if there shall be any Conscience as strongly carried away with the name of Parliament, as the Papists are with the name of the Church, and thinking Religion may be defended any way, and that upon supposall that their Prince is minded to change it, (which is another humor of Popery) will not be perswaded that the resistance made upon the present supposall is unlawfull, against God’s word, and Reason. I am sure such a Conscience cannot be truly perswaded it is lawfull, but must want that clear ground it ought to have, especially in a matter so expresly against the Apostle, and of such high concernment as damnation: must needs run blindly, and headlong by a strange implicit faith upon so great a hazard.
Now we come to the application of their principle to the present, where we must enquire according to the second and third Generalls, whether the resistance now made be such as is pretended to by them in such a case as they supposed, and then whether Conscience can be truly perswaded the King is such, and so minded as in the case he is supposed to be.
The chief considerations of these two Generalls, are matters of fact. The principle was examined by Scripture and Reason, these admit the judgment of sense, and are cleared by what we hear and see: which judgment of sense is not so easily captivated by an implicit faith as that of reason is, insomuch as Conscience here cannot be so blinded but it may see that (were the principle good on which they rest, yet) this resistance which they make, is not such as in the case they supposed him to be, not such as ought to be resisted according to their own grants.
The second Generall was, That the Resistance now made, is not such as is pretended to by them that plead for it, and therefore Conscience cannot be truly perswaded it may lawfully bear part in it, or assist them that in the pursuit of it pretend one thing and do another.
It was premised at the beginning, that such a resistance should be omnibus ordinibus regni conscientibus, agreed upon and undertaken by the generall and unanimous consent of the whole State, and that it should be only Legitima defensio, a mere resistance, and these laid down, not that I admit resistance however conditioned (for all that I have said before, doth altogether condemne it) but according to their own grants that plead for it. To this purpose it is that they say the King is Universis minor, lesse than the whole State, and every body naturally defends itself. Therefore if a contention be between the Head and the Body, it must in all reason be the whole Body that is set against it, and if there be such an appearing against the supreme Power, as tends to resistance, the consent and judgment of the whole Kingdom just be against him, or else every prevailing faction might indanger the State, by causing such changes and evils as now it’s threatened with. This is the reason of this unreasonable power of resistance in the people.
Well then, how shall Conscience be perswaded that this resistance was agreed upon by an unanimous and free consent of the States assembled in the two Houses, such as in this case may be called the judgment of the whole Kingdom.
He that knows how the Militia (in which this resistance chiefly began) was brought in,6 with what opposition, especially in the Lords House, and by what number there at length was voted; also how the like proceedings of resistance, that have been voted since, are declared against, by a greater number of each House than do remain in either, such as have been cast out, or withdrawn themselves upon dislike of these proceedings: can he, I say, that knows this (and who knows it not, that hath eyes and ears?) be in Conscience perswaded, that this is such an unanimous, free and generall consent, the judgment of the whole kingdom?
For though a Vote passed by a few upon the place has the power and condition of a Vote for the formality of Law, yet, if the question be, Was this passed in full assemblies? Did they all unanimously as one man consent unto it? Conscience cannot be convinced there is such efficacie in the place, as to make a few, the whole, or their agreement to be that judgment of the whole Kingdom, that unanimous consent, which must be in the case of resistance, by their acknowledgment that plead for it. For were it in this case to be held for the judgement of the whole, which is passed by a few, then would the State be unreasonably exposed to that danger (above mentioned) which every prevailing faction might bring upon it under the pretence of the judgment of the whole Kingdome.
Again, as Conscience cannot be truley perswaded that this resistance is agreed upon with such a generall and unanimous consent, as they themselves pretend to, which plead for this resistance, so can it not truly be perswaded that this resistance is such for the mere defensive way of it, as it ought to be according to their grants and pretences that appear for it.
Conscience here will see how to resolve upon the triall of these two particulars, whether the King or they be upon the defensive part? Then, whether the managing of this war, or resistance on their parts, be so void of hostile acts, as the defensive way, which they pretend to, ought to be?
Conscience will discern whether part is upon the defensive, by inquiring, First, Who were first in Arms? He that can number the succession of weeks, and months in his Almanack may decide this. He shall find that armed men were thrust into Hull, the King’s Arms seized against his will, the Militia set up, and by that, the King’s Subjects drawn into Arms, before the King had anything to oppose but Proclamations. That subscriptions for Plate, Money, Horse, That listing of Souldiers for the field, and appointing of Officers of the Armie were begun upon their part, before His MAJESTIE did the like. Now resistance doth in the word itselfe and in their pretence, presuppose a power and force first made against them, whereas it is plain, they were still upon the preventing and forehand with the King, still shewed him example for what he has done since in the way of War: yet must the people believe he raises the War, and they are upon defence; but conscience will not be so forced.
Secondly, by enquiring what is the cause of these Arms? What do they contend for? And though it be clear, That if Subjects be first in Arms, they cannot be upon the defensive, yet the consideration of the cause will more apparently convince it, when Conscience shall see it is not for what is pretended, but for something the King has right to deny, that this resistance is made. The preservation of Religion and Liberties is pretended, but can it be for either? The King denies them not. Their Religion they freely enjoy; and was it ever known that Subjects should rise in Arms against their Prince for a Religion which he promises to maintain? Or does Religion stand in need of a defence, which itself condemns, a defence which would be a perpetuall scandall to it? If therefore Religion be the pretence, but no cause of War than is the War raised on their part, the King is upon the defensive. Or can it be for ancient Rights and undoubted Priviledges that they contend? The King denies them not, promiseth all security, so he may enjoy his own; and God forbid that either he or they should suffer in their just Rights. But would any man ever have defended the revolt of the ten Tribes, if Rehoboam had promised to conserve their Liberties? What shall we then think of this generall revolt from Allegiance that has possessed well-neer ten Tribes of twelve? They suppose he will not make good his promises, and therefore they will make all sure, seize his Arms and Forts, strip him of all, and if he begin to stir for his own Right and Dignity, then the people must be made to believe he makes War against his Parliament, intends to destroy their Liberties. But can any man in Conscience think his Majesty since the beginning of this breach was ever in such a condition of strength as might threaten the Liberty of the Subject, or destroy Parliaments, when as it was long ere he could with much ado attain to any reasonable means of subsistence, or to such a strength whereby he might seem to be able to defend himself.
To speak truth, Religion and Liberties can be no other than the pretences of this Warre, the King has fortified them so with many Acts of Grace passed this Parliament, that they cannot be in that danger which is pretended for the raising of this Warre. It must be something that his Majesty does indeed deny for which the contention is raised. That we shall finde to be his power of Arms and ordering the Militia of the Kingdom, his power of denying in Parliament, his disposing of the Offices of State, and such like; Also the Government of the Church, and the Revenue of it. In the three former he challenges his Right, as his Predecessors had: the other he is bound by Oath to maintain as by Law they are established. Well, if these be attempted, and His MAJESTIE will not be forced from them, cannot yeeld them up, but it comes to Arms, then will Conscience easily be convinced the King is upon the defensive, for the maintaining of what he justly holds his right, or is bound by Oath to defend.
And if we hearken to the people’s voice, for that commonly speaks the mind of their leaders, we shall hear them usually call this Warre, as they did that with the Scots, the Bishops’ Warre. His Majesty has indeed alwayes declared against the altering of the Government of the Church by Bishops, being such as it alwayes had since the first receiving of the Christian faith in this land, and of all other Governments simply the best, if reformed from abuses and corruptions that have grown upon it, to the purging out of which his Majesty is alwayes ready to agree. But be it the Bishops’ Warre (though the abolishing of that Government be but one of the many inconveniences which this power of resistance doth threaten this Land with, and which the King has reason by power of Arms to divert) whether is it so just in Subjects by Arms to force a change of Government which was alwayes in the Church, and by Law established, as it is in the King to defend the same as he is bound by Oath? It is clear which of the two are upon the defensive.
The second particular by which the defensive way of this resistance is to be examined, was the managing of this Warre on their parts, whether in void of acts of Hostility as that defensive way should be which they pretend to. David’s resistance made against Saul is frequently alledged by them, which example, though it will not countenance their cause (as was shewed before) yet might it tell them their demeanour should be answerable. He offered no act of violence to Saul, but still gave place and withdrew from him. The Spear indeed and the Cruse David took away from the King’s head, but it was only to shew Abner’s neglect who had the Command of Saul’s Militia, and to testifie his own integriety, therefore he restored them before they were demanded, I. Sam. 26.
But now the King’s Spear and his Cruse, his Ammunition and his necessary Provisions are taken away, intercepted, not restored though often demanded, used against him with all advantage; nay he is stript of the very power and command of Arms, his Officers and Ministers thrust out, and other substituted, and by them his people drawn into Arms against him.
Also by these that are in resistance against the King, his Loyale and peaceable Subjects are assauled, despoiled of their Arms, Goods, Estates; their persons imprisoned, because they would according to their Allegeance assist him in this extemity, or would not, contrary to their Conscience, join with them against him. What Conscience that will not follow this way with a stupid implicit faith can be perswaded that this warre is the defence of the Subject’s Liberties, and not rather an oppugnation of them? Or that it is a mere resistance or withstanding of a force first made against them, and not rather a violent illation or bringing in of force upon those that were disposed to peace. Therefore no conscience that has a sense of Religion, or of that which is just and right between man and man, can bear a part in this resistance, for fear of that sentence of damnation which the Apostle has laid upon it.
But in the last place, if Conscience could be perswaded, that it is lawfull upon such a case as they make, to take Arms and resist, and that this rising in Arms is such a defensive resistance, as in such a case they seem to pretend to, yet how will it be perswaded that the Case is now, that is, That the King is such as the people must be made to believe he is, unlesse it will as desperately offend against the rule of Charitie, in so concluding upon the King, as it does against the rule of Faith and perswasion, in admitting so ungrounded a principle as is now rested on for resistance. So that such a Conscience shall have in its perswasion neither certainty of Rule; for the principle it goes on is false, nor certainty of the Case, for it knows not the heart of the King, to conclude for resistance upon supposals of his intentions, and in its judgement it will be altogether void of Charitie.
Indeed it concerns all such as will resist upon the principles now taught to render their Prince odious to his people under the hatefull notions of Tyrant, Subverter of Religion, and Laws, a Person not to be trusted, or at least as one seduced to such evill designes, by wicked Counsell. But what? Hath this King forbid the exercise of the Religion established, or left off to professe it himself? hath he disclaimed his trust, or not upon all occasions promised Justice and libertie to his Subjects?
Yea! But they have cause to fear Popery will prevail, and that he will not stand to his promises. It seems they are men that would be loath to suffer for their Religion, they are so ready to fly to Arms to secure themselves. But shall subjects rise in Arms against their Prince upon such remote fears and jealousies as these will appear to be? When can such be wanting in turbulent minds? When shall the Prince be assured of safety? This was the way that David himself was shaken out of his throne, and driven from Jerusalem by Absalom. This cunning Rebell steales away their hearts by rising jealousies in them and an evill opinion of David’s government, 2. Sam. 15.3. Some ground, it seems, he had for his treacherous plea, through the negligence of those that were under David, but it was his villanie to make use of it to the alienating of the people from their King. Accordingly let us now consider what slender grounds our people have for their fears and jealousies, then what securitie they have and might have against them, that it may appear how causelesse those jealousies are in themselves; how unjust causes of this resistance.
If we examine the fears and jealousies that have possessed the people we shall find them to be raised upon these or the like grounds, Reports of foreign Power to be brought in, The Queen’s Religion, The resort of Papists to his Majesty, His intercepting of means sent for the relief of Ireland, from whence the people by their good teachers are made to believe, that he means to enslave this people, reestablish Popery, and does comply with the Rebells.
I answer to all which I needed not to say more than what Michael Archangel to the devill that arch-accuser, The Lord rebuke thee, Jude 9. but in particular; For such reports of invasions from abroad, as were, before the setting up of the Militia, given out to keep the people amused, the easier to draw them into a posture of defence as was pretended, all such are discovered by time to have been vain; if there be now any foreign aids towards the King (as all Christian Kings cannot but think themselves concerned in the cause) it will be as just for him to use them against subjects now in Arms, as it was unjust in the Barons to call in the French against their naturall King.
For the Queen’s Majestie; Her Religion is no new cause, if it be a sufficient cause of Jealousie to them, they have had it from her first entrance; I would to God it were otherwise with her, that it would please the Lord to open her eyes that she may see the truth and light of the Protestant Religion: only this I must say, this is not the way to draw her to it, if she look at it in the doctrines and practices of these times she is not like to fall in love with it.
For the resort of Papists, and the King’s entertaining them; He hath often declared what caution he desired to use therein, till necessitie hath driven him to admit of some few into his Army, which also he answered lately. Let me adde this concerning the justnesse of it, If he hath entertained any into this service, he may justly make use of them. We see what manner of men were gathered to David in his distresse, I. Sam. 22.2. and how false Ziba bringing provision to the King when he fled from Absalom, was entertained and rewarded, insomuch that the King (when afterward he knew how Ziba had abused him to gain his own ends) would not reverse the sentence pronounced in his favour. If therefore in this distresse after much forberrance our King hath admitted the help of some Recusants, it cannot be alledged as a cause of the resistance was a cause of it; and if the Papist will shew himselfe a good Subject, it is just and reasonable that the King when he is put to it, may admitt of his help, and the more shame it is for them that professe the Protestant Religion to force him to it; a scandall that would not easily be wiped off from our Religion, were it to stand or fall, by the doctrines of this giddie Age.
Lastly, His Majestie hath written enough for the clearing himselfe from those false and odious imputations laid upon him in relation to the Irish businesse. I have only thus much to say, concerning anything intended for the relief of Ireland; It was great pitie they should want it there, but it is more pitiefull, the King should be forced to make use of it here.
It is not long since our neighbour Nation brought an Army into the Northern parts of this kingdome to the great detriment of the inhabitants there, and it was excused by invincible necessitie, which drove them hither. The necessitie his Majesty was driven to is sufficiently known, and might excuse him, in taking his own where he meets with it, and drawing it from his service abroad to that which more nearly concerned him at home. And when his Arms, Moneys, and Provisions are seized on wherever they be found intended for him, and imployed against him in Warre, the Lord knows how unnecessary, shall it not be lawfull for to take some part of them where he finds it for his necessary defence?
Indeed the distresse of Ireland by the help of wicked Pamphlets hath been used as a great engine to weaken the King’s reputation with his people; but upon whose account the heavie rekoning of that neglected Cause will be laid, together with the disturbance of this kingdome, any man in conscience may easily discern, that sees what sufficient and reasonable means might have been had for the security of Religion and Liberties, and for the redresse of all just grievances before this time. Which is the next thing considerable: What his Majesty hath done and profered to exempt these scrupules of fears and jealousies out of this people’s minds.
For Religion, if it be a new frame they contend for, I must acknowledge hee declares against all such; but if they desire the continuance of that true Protestant Religion, which hath been professed without interruption from the beginning of the Queen’s dayes, and established by the Lawes of this land, that he undertakes to maintaine, that he hath protested in the head of his Army to defend. For matter of Church-government and discipline he hath offered any just reformation, even with a respect to tender consciences in point of ceremony, hath often called His two Houses to the worke in drawing up the grievances to some head. For priviledges of Parliaments and Liberty of Subjects hee hath given them the like promises with the deepest Protestations, and by an excellent moderation, amidst the presurres and necessities of Warre, hath showen what respect he hath to the property and liberty of the Subject. Lastly, For his choise of Officers of State, he hath promised to admit any just exception, and thereupon to relinquish the person and as an assurance of all this, hath so far condescended as to take away Star-Chamber, High Commission, Bishops’ votes, &c. and the Continuance of this parliament, & the constant returne of a Trieniall. And now after all these promises and protestations and so many expressions of grace, can any man in conscience think there was yet place left for Propositions of such necessary concernment, that except they be granted this kingdome must be imbroiled in a Civill War, & the reliefe of Ireland neglected? I speake not this to cast any blemish upon the wisdome of the great Councell, or upon their desires and endeavours to gaine a great security to the publicke: but I would to God, the King were once thought worthy to bee trusted a little, and that the Consciences of his Subjects were more respected, which cannot so easily be commanded into a resistance, being very tender in the points of damnation, and taught out of God’s Word, Not to raise so much as an evill thought against the King, Eccl. 10. much lesse to lift up an armed hand.
Every man’s Conscience now is solicited to adhere either to the King in this great cause, or to joine with Subjects in making resistance. To draw it from Allegiance, tongues are set on fire of hell, which blast His Majestie’s Actions and Declarations, and books written by hellish spirits, enemies to peace and quietnesse, are suffered to issue forth into every corner of the Land to possesse the people, that his promises are but words, his Acts of grace were forced, he will not stand to them. It seemes then he must by force of Armes be compelled to be willing. But let us see whether a conscience that desires to be safe can be so perswaded in judging the actions and intentions of him (to whom it owes the highest duty under God) as first to conclude he intends not as he promises, and thereupon to resolve for resistance? No, it will direct itselfe by the rule of Charity, which is, not rashly to conclude upon the heart which it knoweth not, or to think any evill; and if the difference be betwixt two, as in cause, it will hold the rule of indifferency, impartially to consider the actions of both. Conscience therefore that it may be informed of his Majestie’s intentions, will it look upon him at such a distance as London and read him only in those horrid relations that issue thence, and conceive of him as they report him to the people? Or will it consider some failings that necessity has inforced, or other accidentall occurrences have occasioned, and from these conclude intentions to him, contrary to all his promises and Protestations? This would be too partiall, too uncharitable. Conscience ought alwayes to be tender in judging upon other men’s intentions, especially those of the Prince, and those to be concluded as evill, and to be made a ground for resistance, which runs the hazard of Damnation. In the 2 Chr. c. 21.10. Libuah is said to revolt from the King of Judah because hee had forsaken the Lord; a Text that is objected to us, and should have been answered in the first part: but it is impertinent as all the rest are, for it neither proves the principle, That it is lawfull for the people to revolt when the King forsakes Religion, but shewes that such revolt is a punishment from God upon such a King, though a sinne in the people. Nor doth it come home to the Case; for there the King had forsaken; here is only supposall that he will, and that groundlesse and unconscionable too. For as there was enough in David to clear these Jealousies upon which that rebellion of the people following Absalom was grounded, so is there on the King’s part, to direct conscience against this desperate uncharitable judgment, if it look at those many Acts of grace as new additions to that security, by which this State has so long stood, and from them conclude, He would not in a faire way deny anything reasonable. If it consider those many promises strengthened with the deepest protestations, enforced with desires of successe from God according to his just intentions, and all these, as proceeding from a King, under such affliction, in such danger, after such successe and experience of God’s protection, approving thereby the reality and sincerity of his heart. What conscience can here conclude contrary intentions in him, and not think it blasphemeth God and the King?
Furthermore, as conscience will not be uncharitable when it judgeth upon the intentions of another man’s heart, so neither will it be partiall when it judgeth between two, unto which of them it should incline: and therefore he that is abused to believe amisse of his King and solicited to enter this way of resistance, is highly concerned first to consider, whether they also that are the main directours of it, and to whom he would adhere, doe discharge their trust they are called to, I say such an one, unlesse he will resigne up his faith to men, and receive their dictates as the immediate rule of his conscience, must consider whether all be just and honest that is done in that way? Whether to divest the King of the power of Armes and to use them against him, be to defend his person, Rights, and dignity? Whether the forcing of the Subjects’ property, to the advancing of this resistance, and the imprisoning of their persons for deniall, be the maintaining of the right and liberty of the Subject? Whether the suffering of so many Sects to vent their doctrines with such liberty, and to commit unsufferable outrages upon the worship of God, with such licentiousness, be a defending of Religion and the established worship of this Church? All these duties every Subject respectively is bound to discharge, and the neglect of them His Majesty has chiefly charged upon those that he conceives the chiefe directours and Actours in this resistance made against him, and every man in conscience ought seriously to consider it.
The necessity of the Common-wealth is pretended to defend the not defending of the premises; when as no necessity may excuse any failings on the King’s part, as if his promises, by which he stands obliged to his Subjects, did not suppose they for their parts also should performe. I know not how some particular men may be engaged and contract a necessity of resisting, or seeking safety by Armes; but I am perswaded, no man in Conscience can thinke it a necessity of the Common-wealth to have all confounded, or of a Christian to run the hazard of damnation by resisting. My conscience tells me, and will theirs one day tell them, how much they have to answer for not improving that grace and willingnesse, they had experience of in His Majestie and might still have found in him, to the speedy and happy Reformation of this Church and State. I pray God to give them Consciences truely inlightned, and bowels truly compassionate, that they may speedily and feelingly be sensible of the miseries this Land grones under, and faithfully examine how far they are answerable for them by rejecting such reasonable meanes of security, as they might have had for the safety of this State. Amen.
And now if there be any one that will run the hazard of this resistance, I desire he would first set his Conscience before the Tribunall of God, where it must appeare, and consider whether it will excuse him there, when he has shed the bloud of others, and expended his owne, to say, I verily supposed and believed my Prince would change Religion, overthrow our Liberties. I must tell him it will not be safe for him to present such a Conscience at that barre, a Conscience that wanted the rule of Faith to warrant and perswade the lawfulnesse of resistance on such a supposall, a Conscience that wanted the certainty of perswasion that the Prince’s heart (which God only knowes) was so inclined, a Conscience that wanted the judgement of charity, in concluding such intentions in the King notwithstanding all his promises and deepest protestations made in the time of his trouble, without which Charity all is nothing though he layes downe (as he thinkes) his life for Religion. Such a Conscience I must needs conclude sinfull, and liable to that which the Apostle threatens unto Resistance, Damnation.
Charles Herle, A fuller Answer to a Treatise
[Charles Herle, 1598-1659]
Written by Doctor FERNE,
The Resolving of Conscience upon this Question,
Whether upon this Supposition, or Case (The King will not defend, but is bent to subvert Religion, Lawes and Liberties) Subjects may with good Conscience make resistance.
Wherein the Originall frame, and Fundamentalls of this Government of England, Together with those two Texts of Scripture are sufficiently cleered. viz.
Let every soule be subject unto the higher powers: for there is no power but of God, The powers that be, are ordained of God.
1 Pet. 2.13.
Submit your selves unto every Ordinance of man for the Lords sake, whether it be to the King as Supreame.
Done by another Authour.
And by him revised and enlarged by occasion of some late Pamphlets
Complaining in the Name of the City against the Parliament.
Printed for Iohn Bartlet, and are to be sold at the Signe of the Gilt-Cup in Paul’s Church-yard, neare to Austins Gate, 1642.
Charles Herle, a Presbyterian divine from Cornwall, was educated at Oxford. He was closely linked to James Stanley, later seventh earl of Derby, and his family. It was through the good offices of these future royalist stalwarts that he became rector of the rich rectory of Winwick in Lancashire. In the 1640s Herle preached frequently before the Long Parliament. He was also active in the Westminster Assembly of Divines. In his numerous pamphlets on behalf of Parliament he stressed the coordinate nature of the English government, which he saw as based upon an original contract. His views have been seen as prefiguring those of the Whigs at the Glorious Revolution. In the matter of resistance he followed Calvin’s advice that the privilege belonged not to individual subjects but to the magistrates and courts of a kingdom.
Herle was one of several parliamentarian pamphleteers who crossed literary swords with Henry Ferne after the publication of Ferne’s “Resolving of Conscience.” His first effort, “An Answer to misled Dr. Ferne . . .” was followed by “A Fuller Answer to a Treatise Written by Doctor Ferne,” which was published on 29 December 1642, only days after Ferne had failed to appear before Parliament to answer for his tract. The “Fuller Answer” appeared in two virtually identical editions, the second of which is reprinted here. Ferne replied to his critics on 18 April 1643 with “Conscience Satisfied . . . ,” which Herle attacked the following month in “An Answer to Dr. Fernes Reply.” Ferne attempted to have the last word on 1 November 1643 with “Reply unto severall Treatises. . . . ” This paper war, intended to provide constitutional guidance to Englishmen perplexed by the unfolding civil war, clarifies the theoretical differences as well as the shared notions of the antagonists.
Although his side emerged victorious, Herle did not approve of the execution of Charles I and was summoned by the government in 1651 on a charge of aiding royalists. It was not until September 1653 that he was freed from restraint. Thereafter he retired to Winwick where, in September 1659, he died. He is buried in the chancel of his church.
An Answer to a Treatise Entituled
The Resolving of Conscience upon this Question, Whether upon such a supposition, or Case as is now usually made (The King will not discharge His trust, &c.)
Blowing aside the Magistery of the Title, Author, Style of this Treatise, as but the pin-dust of it, that gilds but intercepts the Letter: I find the substance of it to be a groundlesse supposition of the Parliament’s taking up Armes, upon a bare supposition of the King’s meere intention to subvert Lawes and Liberties; for so we see the question itselfe is proposed: Whether upon such a supposition? The King will not, &c. Here I confesse we have much of the Chaire upon the resolving part, but as much beside the Cushion on the supposing part; for whoever maintained that the Parliament might upon such a bare supposition of such a meere intention of the King’s, take up Armes, the actuall invasion of Liberties, invitation and detention of Delinquents from triall by Law, to be a party in Armes against the Parliament, thereby to dissolve, or at least to remove it without the Houses’ consent, flatly against a Law of this very Parliament, Importation of forraigne Armes and Souldiers, illegall Commissions to imploy them, &c. all voted in Parliament to have been done, amount to more than suppositions of meere intentions. But to passe by this, (as the property of the Ferne, which uses to have a broad top, but a narrow roote) the thing that he prosecutes, though not proposes, is that 1. No supposition, or case can authorize Subjects to take up Armes against their King; and then 2. That such a case as the present Parliament pretends to have, it hath not; and 3. Therefore no Subject can take up Armes with good conscience.
The best way therefore of Answer, will be to cleare these three Propositions.
1. A Parliament of England may with good conscience, in defence of King, Lawes and Government establisht, when imminently endangered, especially when actually invaded, take up Armes without, and against the King’s personall Commands, if he refuse.
2. The finall and casting result of the State’s judgement concerning what those Laws, dangers, and meanes of prevention are, resides in the two Houses of Parliament.
3. In this finall Resolution of the State’s Judgement the People are to rest, and in obedience thereto may with good conscience, in defence of the King, Laws and Government, beare and use Armes.
These made good, the answer to his severall Sections will be very easie.
If anyone thinke much I doe not answer the Doctor in his three proposed Resolves upon his Question, I answer I am enforced to answer what he would say, for (to say truth) resolving, as he doth, upon a Question that never came in Question; That no conscience upon such a supposition as was never made, can have safe ground for such a resistance as was never undertaken, he sayes (upon the matter) nothing at all. Only sets up an Army ingaged in a quarrell of his owne fancy, a Mawmet of his own dressing, which he cudgels into the Clouts he himselfe hath put it in. He disputes with his owne corner Cap, and is his owne John a Nokes, and John a Style both: much what as Mountebankes use to doe, who make wounds only, the better to sell their plasters. And to answer him word by word, as he goes along in the Treatise (wherein for the more gravity and (it may be) the more to amuse and loose the Reader, he makes the Nominative case in every sentence, to give the Verbe twelve-score at starting) would swell the Answer into too great an affliction upon these dispatchfull and urgent times. How many weekes soever the Doctor hath been about the Treatise, it is well known to many, the answer cost not many houres the doing.
Propos. 1. A Parliament of England may with good conscience in defence of King, Laws and Government established, when imminentlyendangered, especially when actually invaded, take up Armes without, and against the King’s personall Commands, if he refuse.
Before we judge of what a Parliament can doe in England, it will be needfull to know what kind of Government this of England’s is. We are therefore to know, that England’s is not a simply subordinative, and absolute, but a Coordinative, and mixt Monarchy. This mixture, or Coordination is in the very Supremacy of power itselfe, otherwise the Monarchy were not mixt: all Monarchies have a mixture, or composition of subordinate, and under-officers in them, but here the Monarchy, or highest power is itselfe compounded of 3 Coordinate Estates, a King, and two Houses of Parliament; unto this mixt power no subordinate authority may in any case make resistance. The rule holds still, Subordinata non pugnant, subordinates may not strive; but in this our mixt highest power, there is no subordination, but a Coordination: and here the other rule holds as true, Coordinata invicem supplent, Coordinates supply each other. This mixture the King’s Majesty himselfe is often pleased in his Declarations to applaud, as by a mutuall counterpoise each to other, sweetening and alaying whatever is harsh in either. The Treatiser himselfe doth no lesse, calling it, That excellent temper of the three Estates in Parliament, confessing them (there) to be the Fundamentals of this Government, and if Fundamentals, what subordinations (I pray) can there be in them? Fundamentals admit not of higher and lower, all foundations are principall alike. And I cannot but wonder that that position of the Observator, the King is Universis minor, should be by this Resolver and others so much exploded, for if the temper (as he speakes) of this Government be of three Estates, he need not buy the Almanack (he speakes of) to reckon by, that one is lesse than three.
But you say, what? Is not the Parliament subordinate to the King? Are they not all Subjects? I answer; the Parliament cannot be said properly to be a Subject, because the King is a part, and so hee should be subject to himselfe: no, nor are the two Houses without him Subjects; every member seorsim, taken severally, is a Subject, but all collectim in their Houses are not, nay, Bracton the great Lawyer is so bold, as to say, The King hath above him, besides God, the Law, whereby he is made King, likewise his Court of Earles and Barons, &c. But we need not goe so high, it will serve our turne, if the Houses be in this mixture or temper of Government, not subordinate or subject, then, if they do as Coordinates should, supply each other’s failings, no highest power is resisted.
But you’ll say, how can they which are every one apart Subjects, not be all Subjects in their Houses? Doth the King’s Writ unsubject them? No, it was the consent of both King and people, in the first coalition or constitution of the Government, that makes them in their severall Houses coordinate with his Majesty, not subordinate to him, how else were the Monarchy mixt more than that of Turkie? But doth not the King’s Writ make them a Parliament? It doth ordinarily, in actu exercito,1 but in actu signato,2 it is the Constitution of the Governement designes them to it, and accordingly provides for it in an annuall, or now triennuall vicissitude; where note by the way, that whereas it is often urged, that they are but his Councell, to be called by him; it is true, that office is ordinarily betrusted to him, but they are by the first constitution not to be elected by him, but assigned to him, not assumed (as Moses his under-officers, of Jethro’s advice) not only the King’s, but the Kingdome’s Councell, elected by it, not him, and have not only a power of consulting, but of consenting. The Writ for the House of Commons is ad faciendum, & consentiendum,3 however, we know they must consent before it can be a Law, whereby it sufficiently appeares, they are a coordinative part in the Monarchy, or highest principle of power, in as much as they beare a consenting share in the highest office of it, the making of Lawes.
But you’ll say, can there be more than one highest? No, there is but one, but that one is a mixt one, else the Monarchy were not mixt.
But you’ll say, how doth it appeare that the constitution of this governement is such? I answer (besides his Majestie’s above mentioned confession, and the Houses’ share in the highest office of governement, that of making Lawes) by the mutuall Oathes the King and people are to take to maintaine the Lawes that have so constituted it. Fortescue is herein full and home, (i) The King is to governe his people by no other than that kind of power which flowes to him from their consent, and that is a polliticall not regall power. Now he that knowes anything of Greek, knowes the word Polliticall implies a mixt Principal, specially when opposed to regall.
But you’ll say (with the Treatiser) the King is King before he takes his Oath. ’Tis true, but he is King but upon the same trust which his Predecessours (in whose right he followes) swore to; and the Oath which the Law provides for the King and his Predecessours to take, virtually binds him even before he take it, while he holds the Kingdome, but in the right of succession, for the same Law that conveys upon him the Crown in right of succession, charges upon him the taking of the same Oath his Predecessours have done, from whom by that Law he claimes the Crowne; in that respect it is, that the King is said in Law not to die, but demise, because they all still live in him.
But you’ll say, ’Tis hard to apprehend how the same men that are all Subjects severally, should in their houses not be subject, but coordinate with the King? It may appeare easily thus: a Father and a Sonne are by a deed of enfoement jointly entrusted with certaine Lands to uses, the Sonne is still subordinate to the Father as Sonne; but as Feofee, in the trust, he is not subject but coordinate and joint with him. And therefore it is not a little to be wondered at, that so many especially of the Lords, who are Conciliarii nati, borne Councellours to the State, in whom their shares both of trust and interest in this Supremacy of power in Parliament, the very constitution itself of the government hath invested their very blood with, should be so much wanting to themselves, their posterities and it, as upon a bare whistle to desert that trust and interest in the governement, which their Fathers with so much of their care conveyed upon them, and so much of their bloud preserved for them. Their very style Comites and Peeres imply in Parliament a coordinative Society with his Majesty in the government; they are in Parliament his Comites, his Peers. I know ’tis strongly alleadged that they could not stay with safety for routs and tumults. I must confesse ’tis much to be wished there had been none; but the Houses alleadge againe, they hindered them what they could, and there was no Law to punish them, specially comming but as Petitioners, and that his Majestie’s feare was so little from them, that the morrow after the greatest of them, he went into London with an ordinary retinue; and that most of the Lords departed not, till long after all was quiet; what had become of Israel, if Moses had left his charge upon every tumult? But of this but by the way.
The world hath been long abused by Court-Preachers (such may be as this Doctor) first crying up the sole Divinity of Monarchy in generall, and then (what must follow) the absolutenesse of this in the King’s sole Person. No marvell,—id sibi negoti—by this craft they got their living. Now they doe (with this Resolver) begin to fore-see and acknowledge, that if Monarchy were of morall and speciall institution from God, it would at once condemne all other formes of government of rejecting a divinely morall, and therefore universall institution, and make this Monarchy as unlimited as any other; for what limits or afterbounds can man set to God’s speciall institution? That there be in all Societies of men, a governement (capable of it’s end, safety) is out of question God’s institution and morall; but that this governement be so, or so moulded, qualified and limited, is as questionlesse from the paction or consent of the Society to be governed, Hanc potestatem à populo efluxam Rex habet (as Fortescue before) the qualification of the power is an eflux of the people’s consent, as the power itselfe (as the Doctor tells us) an eflux of God’s Providence; and to say truth, he himselfe acknowledges as much, confessing, That no particular forme of government is, jure divino, it must be then humano sure, from the people’s consent.
It was but a while since good Pulpit stuff with Court-Doctors, That safety being the end of government, and the King only by God solely entrusted with it, he was not bound by or to any human Lawes in the managing it to that it’s end; he was to use whatever the result of his owne judgement concluded fit and conducing thereunto, nay he was not bound to keepe any Oath he tooke to the people to be ruled therein by Law; there could be no commutative justice betweene him and them, only distributive from him to them, so that all they had was his, to the very parings of their nails, his Oath was but a peece of his Coronation show, he might take it today and breake it tomorrow without perjury, because he was under a former and higher obligation to God (by whom only he was trusted, and to whom only accountable) to use whatever meanes he should thinke conducing to the end for which he had it only from God: that the Salus populi committed only by God, and solely to Him, was a Law between God and him only, before all other Laws, and therefore these must not hinder him in the discharge of that to God by any means, which he should find in his owne judgment conducing therunto, the Oathe’s fault (not his) was in being taken, not broken. And to this purpose the whole body of the Cannon Law was mercilesly racked and raked into, for rules miserably mis-applied, as A turpi voto muta decretum, Quod incautè vovisti ne feceris,4 and Non perficienda promissio sed paenitenda praesumptio,5 &c. yea and some seeming Scriptures shamefully suborned too, as that of David’s confession, against thee only have I sinned, spoken, only in respect of the secrecy of his sinne, and therefore ’tis added, and done this evill in thy sight, or because sinne is properly against no one but God, being a transgression of hisLaw. As if the King tho’ he be, custos utriusque tabulae, Keeper of both Tables, yet were bound to keep only the first, he owes no duty to man at all? And againe, that other of David’s praise, My Lord the King is as an Angell of light; now Angels are accountable to God only, not men; and therefore the Oath the King takes, is (forsooth) not to men but God; (whereas Divinity tells us the formall difference betweene an Oath and a Vow, is, that a Vow is to God, an Oath is by God, wherein there are 3 parties still, who, by whom and to whom; belike then, if he sweare to God, the people are the party by whom he sweares. Nay, our owne Dialect will tell us, That the King is our liege Lord, as well as we his liege people, that is (as the word signifies) mutually bounden each to other). All this and much more of this Demetrian divinity was ordinarily preached by these Court Earewiggs, and all upon this errour that the Doctor resolves on, that the sole Supremacy of power was in the King’s Person, and that his judgement was the sole supreame rule of that power. But we go on.
Now the end or purpose of this mixture of the 3 Estates in this government, ’tis the safety of its safety, as all governement aimes at safety, so this temper in it at the making this safety more safe or sure. The common interest of the whole body of the Kingdome in Parliament, thus twisted with the Kings, makes the Cable of its Anker of safety stronger. So then, the government by Law its rule, unto safety its end, is ordinarily betrusted to the King, wherein, if he faile and refuse, either to follow the rule Law, or to its end safety, his coordinates in this mixture of the supreame power must according to their trust supply. But you’ll say, there is no written or fundamentall Law for this. I answer (to speake properly) if it be written it is superstructive and not fundamentall, written Lawes, that were not Lawes before written, are repealeable and alterable, even while the government remaines the same, fundamentals cannot: a foundation must not be stirred while the building stands. That of Magna Charta, where most of these fundamentals are (at least) implied was Law before ’twas written; and but there, and then, collected for easier conservation and use; but if we would know what is meant by those fundamentall Lawes of this Kingdom, so much jeered at in this and other Pamphlets; it is the originall frame of this coordinate government of the 3 Estates in Parliament consented to, and contrived by the people in its first constitution, and since in every severall raigne confirmed both by mutuall Oathes between King and people, and constant custome time (as we say) out of mind, which with us amounts to a Law, wherein the rule is, Quod non disprobatur praesumitur,6 it cannot be disproved from taking place upon all occasions, therefore it is to be presumed to have continued from the beginning, even in the Parliament Summons of Edward I. This Law is called, Lex stabilita, & notissima,7 even before it was a record.
Now as this mixture, the mean unto this fuller safety, dies not, ’tis not personall but incorporate, and Corporations (the Law sayes) die not, so, that Reason or Wisdome of State that first contrived it dies not neither, it lives still in that which the law calls the Reason of the Kingdome, the Votes and Ordinances of Parliament, which being the same (in the construction of the Law) with that which first contrived the government, must needs have still power to apply this coordination of the government to its end safety, as well as it had at first to introduce it; otherwise it should not still continue in the office of a meane to its end.
Here, in our present case the necessity of applying this coordination or mixture of the government is imminence of danger, which (if any man will make himselfe so very a stranger at home and to all the world besides) as to deny it, the matter is not great, ’tis coram non judice,8 it has another competent and entrusted judge, the two Houses (wherein the Law makes the Reason of the Kingdom to reside) who have by Vote concluded it. Nay the King’s Majesty himselfe acknowledges imminence of danger in his Writ of Summons, Mandamus quod consideratis dictorum regotiorum arduitate, & periculis imminentibus,9 imminent dangers: where, (by the way) we may take notice, that his Majesty is by the above-mentioned fundamentall Law to call a Parliament when there shall be any imminent danger.
Well, in this imminent danger of the State, the meane thought fit by this the Kingdome’s reason to this end its safety, is, the securing of its Militia: (the seeds of Reformation are to be sowne, and no man but makes his fence before he sowes his seed; the State is in its unsound and rotten parts to be lanced, it may be dismembered, and who will goe about such a cure, but he will first bind the patient). In this, the ordinary way is taken, by a Bill offered the King, he refuses to passe it; I know ’twill be said, he never refused to passe it. It cannot be denied but that he refused to passe it according to the advice of the Houses, which is (sayes the Law) the same ever-living reason of the State that first advised the government, and must still advise the way of applying it. But doth not this you’ll say deny the King his negative voice in making Law? No. This Vote or Ordinance of the two Houses, ’tis not an Act of Parliament, or Law; ’tis but an occasionall supply of this coordination of the government (in case of one part’s refusall) least the whole should ruine, and to continue but untill a Law may be had.
But you’ll say, how, and where doth this Reason of the State thus residing in the Votes of Parliament, live in the intervals of Parliament. I answer, virtually it lives to the needs of the State, in the present Laws, the births of those Votes, potentially in Parliaments to be called when there is need, it being but occasionall, needs no continued actuall existence.
Well, hereupon the ordinary way of Bill failing, the Houses must not desert their trust, but apply it that way which by the first constitution of the government in such case is left them, that is, by their Votes and Ordinances, wherein (as before) the same Reason of the State still lives to pursue its safety. The King still persists in his refusall, and insteed of passing a Bill for this secured Militia, raises an Army against their Ordinance for it, claiming trust thereof to belong to him; they deny it not, so he discharge it by this entrusted Reason of the Kingdom, the advice of Parliament. He will doe it, but it shall be by the advice of them against whom it is to be secured, whom the Parliament has voted enemies of the State, and against whom especially it was first called. Now ’tis a rule in Law, Interest reipublicae ne sua re quis malè utatur, No man may use his own right to the Common-wealth’s wrong or damage; the Law provides, that a man burne not his own Corne, drowne not his own Land; nay, that a man bind not himselfe from Marriage, or the manurance or tillage of his own Land, because against the good of the Common-wealth.
Well, the King insteed of applying this trust of the Militia (ordinarily his) against these voted enemies of the Common-wealth’s, gathers those very enemies into an Army against the Parliament, that had voted them such, or which is all one, the over-voting party therein; ’tis certaine the Law allowes not the King without consent of Parliament to raise an Army, ’tis as certaine these men thus in Armes, tho’ raised by his Personall command, are enemies to him in his politicke capacity as King, because they are in Armes against Law, and so against the Kingdom, and so against him as King; who (tho’ in place he be) cannot in Law be divided from his Kingdom or Parliament, no more than the head can from the body; nay, they are not only in Armes against Law (i) without its authority, but against the very being of it which depends on Parliament. What shall the two other Estates doe? Nothing but an Army is left whereby to represse these enemies of King and Kingdome; the third Estate, the King, is so farre from joining to raise an Army to that purpose, as he invites and detaines these enemies of the Kingdome from its justice. What, but use that power in Armes, which the government in such case of the King’s refusall hath entrusted them with to its preservation, especially when ’tis but for the apprehending of such enemies to it, as (besides their voted delinquency by the State’s judgement) are sufficiently convinced by their own flight from its justice; qui fuget Legem fatetur facinus, flight argues guilt alwayes. Every Court in its capacity, has power to apprehend and bring Delinquents to the justice of it, and that by force, and if need be, by arming the posse comitatus to enforce it, and why not the Parliament the regall Court, the posse Regni? An attempt to kill a Judge on the Bench, the Law makes treason, and why? But because ’tis in his Laws and Courts that the King specially raignes, ’tis in them his Crowne and dignity is more specially impeached. But you’ll say, ’tis the King makes it a Parliament, and he is not there.
To which I answer, in a coordinate and mixt government, one part’s refusall exempts not the other from its duty, nor must it defraud the whole of its safety; so, it should frustrate the very end of that its coordination, which is (as we have seene) supply, for the more security of its safety.
Next, at all times the Houses are a part in the supremacy of power, and in case of the other part’s absence and refusall both, virtually the whole, but more specially at this time, now the King hath bound himselfe by Law not to dissolve them without their consent: for however many style them now in the King’s absence no Parliament at all, and his Majestie’s own Papers have some expresses tending that way, yet I would faine know, whether there be now actually in England a Parliament or no? If there be not, how came it dissolved? The King hath bound himself from being able to dissolve it without their consent, they cannot without his, neither consent hath been obtained. Legally dissolve it he cannot by his removall, for, then he should be able to keepe and breake his Law at once, for the Act is against removall without consent as well as dissolution. And illegally dissolve it he cannot, if so dissolved, it would remaine a legall Parliament still, an injury cannot take away a right. Well then, a Parliament it still remaines in his absence, and if a Parliament, why should it not have the power of a Parliament? A Parliamentary power is the inseparable adjunct of a Parliament: why not able then, in order to the end of a Parliament his and its preservation, and therein of the whole, to apply the power of that whole wherewith it is entrusted? Why should the whole be frustrated of its safety, the end it first coordinated, and thereby fitted the government to, by one part of that government’s refusall, when the other part is willing? Specially when that one part hath bound itselfe out from hindering the other’s willingnesse, willingnesse to preserve the whole, and in the whole that unwilling part too. However this Resolver slight the Observator’s Argument drawn from the highest end of government, the people’s safety, he cannot deny but that the rule holds alwayes, finis quo ultimatior eo influxu potentior, the highest end hath the strongest influence, to that end still all other subordinate ends stand but in the office of meanes, and this that very Text the Resolver so much clings to, evinces, where the higher power is called a Minister for thy good. The people’s good is the highest end of the highest power, and therefore that which gives essence and denomination to that power according to those rules in nature, Finis habet rationem formae in moralibus, the end hath the office of the forme in moralls, and Forma dat nomen & esse, the forme gives denomination and essence both, the end then being tho’ last in the execution yet first in the intention of the efficient, must needs qualifie and regulate the worke.
Yes, a fine way you’ll say of preserving the King by fighting against him; no such matter, the King hath a double capacity, politick and naturall, in his politick capacity as King, in fighting for the preservation of the Land and Kingdome they fight for him, what King could he be without a Kingdome to governe, and Law to governe it by? In that therefore the Law tells us, he cannot be severed from his Kingdom, or Parliament its representative body (tho’ never so farre in Person distant from it). And in his naturall capacity, as a man, they fight not against him in that neither, they humbly begge his safer presence with them, at least his withdrawing from his, and their enemies; nay, they fight for him this way too, we never reade of a King once unkinged but he is quickly unmanned too, they fight to disingage and unthrall his Person from that unsafe and unworthy imployment those enemies to him and his Kingdom put it to, in making it a shelter, a breast worke, but a mudd wall to their own dangers, which they feare from his own Laws: for however his Majesty may be perswaded by them, ’tis his cause has engaged them, (most of them) ’tis their own guilt and danger that hath engaged them, and engaged them to engage him. And although in their mutuall engagements, they may think either’s turne served, it may be neither sufficiently knows who steers their course, what depth of water they draw; certainly, he that looks on the conjunctures of the late affaires of this and the neighbour States, cannot but beleeve (tho’ unknown to his Majesty, and it may be many about him) that those long-spoones to feed with the Devill with, (as one calls them) the Jesuites, both at home and abroad throughout most parts of Christendome have (tho’ at a distance) the first and highest and therefore strongest influence into his Majestie’s present councels, baiting their unseen hooks with his and his Armie’s interests, making them but to pull at the Oare while those sit at the stern. His Majestie’s aime (may be) is to bring his Crown out of wardship, (as Lewis II of France bragged of his) his Army’s (may be) many of them but at keeping their necks out of the haltar, but those Basilisks (that kill with their eyes at distance) look further, and have their ends mingled with, and lapt up in these, upon Religion and the State both.
2. The finall and casting result of this State’s judgement, concerning what those Proposed Laws, dangers, and means of prevention are, resides in the two Houses of Parliament.
Well, in this mixture of the Monarchy or supreame power and trust of Government, the two Houses of Parliament making a coordinate part, what is their share? You’ll say, they are the King’s great Councell, but what, only to consult? (Then questionlesse; he, and not we were to elect them, who chuses not his own Counsell that he is but to consult with? No, but to consent with him in the making of Lawes the highest office of Government; but how a Councell voluntarily assumed by him (as Moses his substitutes in the Wildernesse) no, but assigned to him by the first constitution of the Government from the very same consent of the people that first made the King, and by succession him that King, in whom the first King still lives as in a Corporation (as the Law calls him) which dies not; For the Doctor dares not speak out, when he talkes of the King’s right by conquest to the Kingdome. Conquests (I confesse) may give such a right as plunderers use to take in houses they can master, a jus in re, not a jus ad rem, (as the Law speaks) a jus tenoris, not a tenorem juris, a right of tenure, but no tenour of right; how, not only undoctorall, but how unchristian, inhumane a barbarisme is it, to talke of a right of Conquest in a civill, a Christian State? Were a Land inhabited by Wolves and Tigers only conquest might give a right because none could claime any other; but among men capable of, and invested in a right, there was never more than two wayes of alienation of a right, forfeiture and consent, and even in that of forfeiture there is a consent too implied, the condition is (therein) consented to, on both sides, and what forfeiture can there be where there was never any covenant? If Conquest may create a Title where there was none before, certainly it may make that Title as absolute and arbitrary as the Conquerour pleases, for what should let, where there needs no consent or covenant, and then, why might not such sooner a King in a limited Monarchy (as this is) make himselfe as Arbitrary as he pleased by Conquest? ’Tis easier to augment than to create: no conquest may restore a right, forfeiture may loose a right, ’tis consent only that can transact or give a right. And I cannot let passe how many ways this Resolver abuses his Majesty herein. A Title he has (he sayes) by conquest; but he must not rule by it; a King as Conquerour, and yet he must not rule as Conquerour; what a strange Title is this that makes him a King, but gives him not any Rule? And how injurious doth he (herein) labour to make the King to his posterity, as well as rulelesse in himselfe? How much doth he wrong his inheritance that subscribes and sweares to a limited Title, and has a free one the while to hold by?
Well a power of consenting is of all hands agreed on to be in the two Houses, the faculty of Legem dare10 is not in difference, the question is about the Declarative that of Legem dicere,11 the Law is the rule, and cannot be framed without all the three Estates, but who must apply this rule by giving it the finall and casting resolution of its sence? without which the Record is but the Sheath, ’tis the sence is the Sword of the Law; such a power or faculty there must be in every legall government, after all debatement to give Lawes their sence, beyond all further debatement, otherwise, there would be a Processus in infinitum, debatement still upon debatement, and as nature avoids infinitudes, so the Law inconveniences, even above mischiefs: and it were a defect of no lesse than infinite inconvenience to the end of the Law, Government. If this decisive faculty after the debative hath passed upon the sence of the Law, were not some where resident in the governement, Perfectum est cui nihil quod convenit deest, and ’tis a monster in Nature, quod deficit necessariis, That is perfect which wants not what is convenient, that a monster in Nature which is defective in what is necessary. And where should this faculty reside, but in the two Houses? in whose Votes the Law itselfe places that very same specifick reason of the kingdome, that at first contrived and still animates the Government; and which ever since contrives the very Laws themselves to be declared, (every one abounding most in his owne sence); which thus we prove.
This Principle which all debates about the sence of the Law are to be resolved into without further debatement, must be either the Records themselves, or the Judges, or the King, or Houses of Parliament: Not 1. The Records, for that’s the peculiar Priviledg of God’s word to be autocriticall, its own last Judge, and even therein too, ’tis he who was the first contriver, that is, the last Interpreter. God only could fore-see from the beginning, what doubts may arise about the meaning of any part of his Records, and therefore he only can supply & fit those with some other part thereof to interpret them; Man’s Laws are therefore still liable to repeales & dispensations, because the makers could not for-see how unfit they might prove for after times, & even then those repeals & dispensations given them are (in construction of Law) no other than interpretative still; it is interpreted that had their first makers of them lived to see their unfitnes, they would have consented to those their repeals and dispensations; the Records then may be helps to their Interpreters, not the Interpreters, because ’tis they that are to bee interpreted, they are the rule, they cannot be the hand too, to apply it; though penned with never so much care, time will weare them into a capacity (at least) of different sences to different understandings, and a different or double sence cannot be this highest principle of resolution, there can be but one highest.
Why not the Judges then? They take solemne Oathes to interpret Law aright; true, yet we see their interpretations and Oathes to fall under further debatement still, witnesse (besides many other) the late case of Ship-money, the Oath they take ’tis to the State, and therefore that by its reason residing in the Votes of Parliament, is to judge how truely they have kept it. It comes then to fall betweene the King and Parliament, which shall have it? Both cannot, if devided, as now they are (at least personally) and the principle of ultimat resolution cannot be a divided one, for then it cannot resolve.
But you’ll say the principle of making Law is King and Parliament jointly. True, jointly, a joint principle it may be, but not a divided one. But you’ll say, If Lawes cannot when the principle is divided be made, nor must they in such a case be declared? I answer there is more need of declaring old Lawes than of making new, a State may be governed by the old ones without new; but not by the old ones without this finall resolution of their sense, they are of no use without it, the making of Law, is a standing permanent Act in facto, done at once, the applying them by their interpretations, a transient one, in fieri alwayes a doing. But you’ll say then, if this declarative power be so necessary, and so necessarily in the Houses, how shall we doe in the intervals of Parliaments? I answer the judgements of inferiour courts must stay further debates untill a Parliament be had to try those judgements by, which therefore should (by Law) be once a yeare (at least). Well then, if this last casting principle be so necessary, and cannot be a divided one, why not the King? He cannot in himselfe be divided, the Parliament may? I answer, first, though the Members be devided, the major part that carry the Vote cannot be. Next, this principle as it is thus necessary, so it must be a competent one too, and that requires two things, ability and fidelity; ability to know what he is to judge, and fidelity to judge but what he knowes aright; for matter of ability to take cognizance of the cause by. His Majesty often professes himselfe no Lawyer; therefore, in Law he judges not but by his Courts, in the meanest of which the sentence past stands good in Law, though the King by Proclamation or in Person should oppose it: whereas there is nothing more frequent or proper to Parliaments than to reverse any of their judgements. But the King (you’ll say) has promises of assistance from God himselfe to enable him herein, A divine sentence is in the mouth of the King, and his lips shall not transgresse in judgement; and againe, my Lord the King is as an Angell of God to discerne betweene good and evill. True, such Scriptures I know have been taught to speake what Kings can doe instead of what Kings should doe, but these are no promises but precepts, at least but particular praises of one, no generall claimes of all Kings, nay one of the wisest Kings (and ours too) experimentally confesses, That with Kings ’tis so much the more hard to doe right, by how much ’tis so easie to doe wrong; and indeed what would such a power be lesse than arbitrary, if what he please to declare to be so, must be Law, so, what vaine things would Parliaments be, what wild things Kings, and what miserable things Subjects? But in point of fidelity, why not the King rather than the Parliament? Why may there not be a factious, packt or enslaved Parliament, as well as a willfull, flattered, abused King? Yes I confesse ’tis possible, but nothing so likely, and it behoves the wisdome of a Government, where nothing can be contrived against possibility of miscarriage, to secure what may be against probability. So much the Resolver acknowledges, Wee cannot (he says) expect absolute meanes of safety in a State, but such as are most reasonable. Now experience shews that most men’s actions are swayed (most what) by their ends and interests; those of Kings (for the most part) as absolutenesse of rule, enlargement of Revenue by Monopolies, Patents, &c. are altogether incompatible and cross centered to those of Subjects, as Property, Priviledge, &c. with which the Parliament’s either ends or interests cannot thus dash and interfer, the Members are all Subjects themselves, not only entrusted with, but selfe interested in those very priviledges and properties; besides they are many, and so they not only see more, but are lesse swayable; as not easily reducible to one head of private interest; but by a neer equality of Votes (you’ll say) in Parliament it may come to an odde man to cast by, and then the whole trust and interest both, lies in him wholy.
I answer, no such matter, ultimum Stilricidium non exhaurit Clepsydram the last odde sand doth not make the houreglasse empty more than any of the rest it doth but tell us when ’tis empty suppose 200, of one side and 201 of the other, the odds is carried by the one but the vote by the whole 201. The odde one tells us ’tis the major part but ’tis all the rest that make it so: so that we have (however) the judgement, trust and interest of 201 chosen men engaged in the equity and fitnesse of the Vote. This is it that great Father of the Law, so much magnifies the wisdom of this government in, Dum non unius aut centum solum consultorum virorum, sed plus quam trecentorum electorumhominum, quali numero olim Senatus Romanorum regebatur, ipsa sunt edita, and neer upon that number of 300 the major part of both Houses falls to be.
But you’ll say, how if one or both Houses be devided, and that into equall Votes, how then is the principle either one, or able to resolve? I answer, de impossibilibus non est deliberandum, impossibles are not to be consulted on, it cannot be; for in such a case of either House’s, equality of Votes their severall Speakers have then, and not till then Votes to cast by.
But how yet doth it appeare, but that (at least) this power of last Resolution, is as Arbitrary in the Houses, as it would be in the King. I answer, it cannot be denied nor avoided, but that as the Government (in the forme or qualification of it) was at first an act of the will, and so Arbitrary; so it still remaining the same it must remaine somewhere arbitrary still, else our forefathers should not convey that same government to us which they began, but should bind us in that wherein they were themselves free. It is the priviledg of God’s Laws only to bind unalterablie, now where should the arbitrariness of this facultie reside for the State’s use, but where it was at first in the consent and reason of the State? which as (we have seen) the Law places in the Votes of Parliament, where this arbitrariness allaied and ballanced by number, trust, self interest, ’tis best secured from doing hurt; in the naturall bodie the will followes always the last dictate or resolution of the understanding, and that, (in this politick bodie) being the wisdom of its great Councell, what so fit as it to give dictate to what necessarilie remains of will or arbitrariness in this faculty? The Resolver himself acknowledges no lesse, when he sayes the King is to see with their eyes that are of different judgment from him. But yet further if ability and fidelity make up the competency of a faculty to give Law, its finall resolution by; why not then the Judges in the Checquer-chamber rather than the Members in Parliament? They for matter of ability are skilled, and for matter of fidelity sworn, have more dexterity to judge and lesse liberty to erre. I answer, for their skills and oath, the Houses may make use of both if they please. It was the wisdom of this government, considering men’s aptness rather to warpe after their interests and ends, than to be kept upright by their skills and oaths, to trust it rather to many independent men’s interests, than a few dependent men’s oaths, every daye’s experience tells us that interests are better state security than oaths, specially when those interests have (as here) the command of those oaths, to bind all that skill too to their service. Besides, as their interests with us tie them more to do a right, so our elections of them tie us more to suffer what they do if not a right: because, what they do, we do in them, and self wrong is seldom self revenged. Lastly, if theirs be the finall judgment what is Law, then (à fortiori) much more when it is endangered, and the state in it? And what fitting meanes of prevention are to be used.
In this finall Resolution of the State’s judgment the people are to rest, and in obedience thereto, may with good conscience, in defence of the King, Laws, and Government bear and use armes.
This last and casting resolution of judgment then (we see) resides in the two Houses of Parliament, which are therefore called the great Councell, not of the King only, but of the kingdom, and therefore by it elected and entrusted, but how resides it in them? Infallibly? (As this Resolver imposes on their Idolizers (as he speaks) no. They are not therein in themselves infallible, but to us inevitable. Our judgments are not enthralled, ’tis our interests are entrusted and so, subjected to their decisions. Our judgments are not infallibly guided from either erring with them or differing from them, but bound up in, and superseded by theirs from gaine-saying or resistance; here then (we see) is no Parliament Papacy at all (as the Doctor pleases to descant) he himself well knowes, that though the Pope claim an infallibility, and we deny it him, or a generall Councell either, yet we ascribe to a rightlie constituted generall Councell; a power of binding all under it, from all manner of disturbance to its decisions; and why should a civill generall Councell of England have lesse power in it? Yea further, why should we not, (as we have bound ourselves by our choice and trust, externally to submit to their determinations, so) be enduced too, to believe their joint judgments better than our single opinions? There intelligence and assistance is, (in all likeliehood) much better, I must confesse in the Militia Ordinance, my opinion (possibly) and another’s, of this, or that Lord’s fidelity, may incline us to think they might have been as well continued in their trusts. But why should we not beleeve, we may sooner erre therein than they? We know our own, we know not their informations, discoveries, reasons; the Law is called mens sine appetitu, a mind without passions, and the Lawmakers should be (as neer as may be) so too, the Parliament a speaking Law, as the Law a silent Parliament. Law-makers should be (as Aristotle speaks) but λόγοι than ἄνθρωποι rather reason than men, and (as he speaks) but [. . .] at most, but peeces of quick and walking reason; every Member of Parliament, (’tis like) is not such, yet certainly if some neighbour Members might personally hate this or that Lord, upon particular entercourse of wrongs, yet, no one Lord hath in all likeliehood provoked the greater number of the Commons House, and ’tis that must go to the displacing him; or if he should, ’tis very much if the other House should jumpe with all them in such a personall hatred.
Well then, wee see what power the Law, through our trust, gives the two Houses, and all, in order to the safety of the King, Law and State. They judge by the reason of this State, and rule of this Law (both residing in them) that all three, King, Law, and kingdom, (in Law, as we have heard before not separable), are not only imminently endangered, but actually invaded by an Army, engaged by the adjudged forfeiture of their own lives. There remaines no way in the highest result of the State’s reason to preserve these, and prevent those from apparent mischief, but an army to withstand this other army ready to advance, nay in actuall attempts of hostility; of whom should this army of the state consist, but those who are endangered, nay assaulted, yes assaulted, and plundered too, nay murdered, before in any Parliament army there was so much as man listed, all before were but Musters, and manning of Forts, for the kingdome’s better defence against Forraign dangers.
Well the case thus standing, this great Centurion of the kingdom the Parliament (for the King refusing, we may now (better than our forefathers) give that name to the Houses) sayes unto one of this now necessarily yet voluntarily listed army too, go and he goes, to another come and he comes, to a third do this and he doth it; and wherein lies now the unconscionablenesse of this obedience? It is naturall all the faculties and members in the naturall body are to the defence of the whole commanded to their offices by the understanding’s last result or dictat. It is politick, prevention is the right eye of policie, recovery is but the left, the after game. What other authoritie hath a Sheriff or executioner to put a malefactor to death? But you’ll say conscience must have some higher footing, ’tis God’s Accomptant, and must have his warrant: and it has that fully to. First, a warrant of Charity, in the sixth commandement, which not only forbids murder but commands the preservation of our own & our neighbour’s lives. Secondly, of justice: Render to all what is due, and we have seen, that in case of the King’s refusall (already voted by the kingdom’s Reason) the command of the kingdom’s power (in order to its safety) ’tis its Councell’s due.
Lastlie, of obedience, submit yourselves to every ordinance of man, and that for the Lord’s sake. Sayes S. Peter, we have seen it was the ordinance of man, the first men that introduced the government of this State, and now of the men that are ordained to administer that government. Let every soule be subject to the higher powers (saith S. Paul) and that not for wrath but conscience’ sake, (which place I shall sufficiently cleer anon) besides David in his own defence used an army, & (though against the King) yet is said to fight the Lord’s Battells. Now we have seen the Coordination of this highest power in this kingdom for its better safety, & therein the entirenesse still of its efficacy to its end, though one part withdraw; if the King (especially now he has bound himself by Law not to dissolve this present Coordination) he should be able legally to break the Law, then his government were utterly absolute, or rather absolutely impossible, and illegally he cannot, for the Law hath provided that as King he can do no wrong, (I) nothing against Law, because he cannot, (in that capacity) be severed from his Parliament, and what they enact together is Law. So then the houses’ commands are in this our case acts of the highest power to which the Apostle bids us to be subject.
I do not say if any Souldier in this Army of the King and Parliament’s (for we see legally severed they cannot be) do fight not satisfied in his own conscience, but that he sins, and that (as the Doctor urges so often) Damnably: I say only, that he hath warrant enough for his conscience if he apply it, & if he do, the Doctor’s Damnation is not that of the Apostles, but much what of the nature of that of the Dammees12 of these times. And now these three Propositions being cleered, the Answer to the severall Sections of his Treatise will be both very short and easie. To answer that all his arguments and instances against resistance are mis-scaened in absolute Monarchies, whereas this of ours is mixt would serve the turne; however particularly thus.
The first Section containes little else than the laying down of the manner of consciences, discourse, by assuming to the Proposition granted, and so concluding: saving that he there tells us, that all his fellow Divines deny to the King an arbitrary Government, and yet, in his fifth Section he tells us too that the chief power and finall judgment is in one, and he that one: which what (I pray) amounts it lesse to, than an Arbitrary Government? And he denies that again too almost the next word, in his omnibus ordinibus regni consentientibus, for what consent of all needs there if the finall Judgement be in one? Now that (though the King in Person withdraw) there are virtualy, omnes ordines regni consentientes,13 it hath sufficiently appeared; and for his person, if that were with them to consent or dissent either, doubtlesse there would be no resistance made at all.
The 2d. Section begins with certaine instances of resistance, as that of the people in behalfe of Jonathan, David’s resistance, and Elisha’s, but wee make no use of them, need them not, and therefore need not answer the Doctor’s refutation of them, only (by the way) David’s resistance was by an Army, and what use of an Army unlesse it may fight against, as well as avoid the danger, besides ’tis said that (though against the King) he fought the battels of the Lord (as before). Other instances hee there hath against resistance, but in all simple and absolute Monarchies, those of the Jewes and Romans: nothing to our case. Only take notice by the way, that those Monarchies were absolute and arbitrary not by conquest, but by consent of the people, the Jewes desired of God a King, to be governed by, after the manner of the Nations (sayes the Text) which was arbitrarily (as the Doctor observes out of Justin) and thereupon is it that God by Samuel tells them what such a King would doe to them, not what he might do (as the Doctor seemes to inferre from the place). And for the Roman Empire, its arbitrarinesse was not introduced by conquest, but by consent of the Senate, (however it may be awed thereto by Armes). And for that Title of succession (he there speakes of) it no way excludes consent, for it begins first in the election and consent of the people, and virtually continues so still in the mutuall bonds of oathes betweene King and people, to governe and bee governed by Lawes by them jointly to be made.
But the maine substance of this Section is a couple of Texts, that of Rom. 13. and I Peter 2. To the first we easily answer (if not written particularly to the Romans, who were under an absolute Monarchy, and so no more to concerne us than the Judiciall Law doth (i.e.) only in the generall equity of obedience) yet suppose it referre to all government in generall it makes (as ’tis often alledged) altogether for us, it requires obedience to ordained powers, (i.e.) legall commands not willfull pleasures of Governour. Now ours is ordained to be coordinate and mixt, and resides in that part of it from which the other though withdrawing in person cannot take it, and to which the Law in such a case cleerely gives it, including (as we have seene) in it virtually the other part too, who in his politicke relation cannot be thence (as King) divided. The meaning of the place then must be this; The power that be (i.e.) so or so established by consent of man, are ordained of God to be obeyed; or it is God’s ordinance that men should live under some government, and submit without resistance to that kinde of government they have by consent established, just (as Saint Peter followes him) to the ordinance of man for the Lord’s sake. When the Papists pressed with this Text, aske us why wee, that are so much for obedience to higher powers, doe not submit to the Church’s highest highest power in the Pope? we answer, ’tis a usurpt, not an ordained power, ulcus protestatis, a tumor or wen, no part of the body, a power never either consented to by the body of the whole Church, or substituted by its Head CHRIST JESUS. There are two kindes (wee use to say of tyranny, regiminis and usurpationis, that which is only of Governement, though never so heavie yet must be endured, not only to the good (sayes the Apostle) but the froward too, and therefore I know no man that defends the tenne Tribes’ revolt from Rehoboam as the Doctor insinuats. That other kind of usurpation it hath no right, no ordination at all, and so no subjection due to it. In all power of government Divinity tells us there are foure things; the institution, the constitution, the acquisition, and the use: the two latter acquisition and use are confessed to be often times rather from the Devil by bribery, blood, rapine and the like: the constitution alwayes from man’s consent, the institution alwayes from God, so that here is more than God’s bare permission or approbation either (as the Doctor charges us to hold). Here is in every ordained power as well God’s institution of it, and injunction of obedience to it, as man’s constitution of it. That there be a Government, ’tis of God, what this government shall be, whether Monarchy or Aristocracy: or if Monarchy, whether simple and meerely subordinate, or mixt and coordinate ’tis of man, so then, Let every soule be subject to the higher powers, for the powers that be, are ordained of God, (i.e.) therefore let every soule be subject to powers (not wills) because God’s providence hath instituted them and so subject as man’s consent hath constituted them. Now we have sufficiently seene by the constitution of the power of government of this kingdom, the Law (as the rule) is put into the hands of the two Houses of Parliament by their Votes, (as its reason) wherein we must rest to be applied to its end, the safty of K. & State.
I wonder therefore the Doctor should so much insist on this Text, for if he cannot prove (what he indeed denies) the government to be absolute, and soly in the King, he cannot hence enforce obedience to his personall commands.
The next text is that of I Pet. 2. Submit to every ordinance of man, wherein the Dr. hath espied a double advantage, one from the Greeke word ἀνθρωπίνῃ which rather signifies human than of man, so that it is called human (i.e.) in or on man (as he would have it) as only the subject of it, not any way the cause. ’Tis strange a Doctor of Divinity should trifle thus with Scripture, and as Shoomakers doe with their Leather, with his teeth stretch it thus to his Last, doth he not a few lines after acknowledge (to use his owne words) that the forme, whether Monarchy, or Aristocracy and qualifications of either forme (i.e.) if Monarchy, whether absolute or tempered, are not jure divino, what then? Not jure diabolico sure, it must be humano then, and in jus humanum, as ’tis opposed to divinum, man sure is the cause and Author, and not the subject only, nay why should the word human be there at all, but as contradistinct to what followes, for God’s sake? Why unlesse to make the sence this? that although the ordinance or government, in the manner of its constitution be from man, yet because in the necessity of its institution ’tis from God, submit to it though of man for the Lord’s sake.
His other advantage is in the words supreme and sent, the King as supreme, and such as are sent (i.e.) (sayes hee) the Parliament: but the Parliament is called, not sent, a difference (at least) as great as betweene too and from; but wee have already seene how the King is supreame, not (as those of S. Peter’s times) absolutely so, but in his mixture and coordination with his Parliament, in which every subject is a subject still (as the Doctor urges) but the whole accordinate part with him in the supreame otherwise they could not hinder him from making Lawes, nor finally declare Law without him, the two highest acts of Supreame power.
The third Section especially containes two other texts of Scripture, the first of Prov. 8.15. By me Kings Reigne. I answer, ’tis spoken of and by Wisdome, and doth shee not as well say (as followes) by mee Nobles and Senators decree Judgment? What is here said more of Kings’ Reignes, than of Parliament’s Decrees, they should both be guided by Wisdome, that is all the place will beare.
The second place is that Psal. 82.6. I have said yee are God’s; and doth hee not there too (when he speakes it) stand in the Congregation of the Judges (as the text speakes) reproving such as judge unjustly, and accept the persons of the wicked, all Rulers are God’s alike, (i.e.) God’s substitutes and representatives towards men, upon whom hee derives some of his power and authority; doth not the word of God come to them all alike (i.e.) as it followes in the Doctor’s own words, a commissionfor the setting up of a governing power, whereof the manner of its constitution, hee himselfe before confesses to be from the people, not God; did not this word come to Pilat, as well as to Caesar. Pilat had not his power but from above, (as our Saviour tells him), as well as them the Doctor speakes of I wonder touch not mine Anointed comes not in among the rest? (as usually it doth) a Text plainely spoken to Kings of God’s people, not to the people of KINGS; they were (sayes the very Text) Kings whom he reproved for their sakes, saying touch not mine Anointed.
What remaines in this Section, ’tis nothing else but a jeering the fundamentall Lawes of this kingdome, so often mentioned by the Parliament, which what they are I have before shewed, not as the Doctor would have it the same with those of France, Turkie and all other kingdomes, but proper to coordinate and mixt ones, and especially this.
The fourth Section is spent upon a confutation of any power in the people to reassume the power they first betrusted to the King, the which no man (for ought I know) maintaines, what need the people reassume that which in the first Coalition of the Governement they reserved (as hath appeared before).
The fifth Section. Here, wee have nothing but strange involutions of the matter, and intanglings of the Reader, most what inconsistent as well as impertinent, one while the state hath meanes of preservation such as the Law prescribes, and yet not twentie lines after, wee cannot expect absolute meanes of safety in a state, meanes of preservation, but not absolute safety; if it bee preserved, questionlesse ’tis absolutely preserved, dubiam salutem qui dat afflictis, negat, he that gives not absolute safety gives none, againe this chiefe power and finall judgement (he sayes) must be in one, scarce twelve lines after but Parliaments (hee sayes) are the only remedy for the distempers of the Kingdome, Parliament is the only remedy and yet the only judgement is in the King.
And yet againe he tells us in the same Section, that that only judgement too of the Kings is to see with their eyes that are of different judgment from him. What remaines in this Section is a plaine begging of three questions hee would faine have us to maintaine.
First, that every state whether reserving it or no, hath this meanes of safety by resistance, and to this purpose that of the Church is objected: a State indeed, but neither civill nor of its own constitution, this state Christ the head did not only institute but constitute it too, and that without any concurrence of its own consent. Then the Christians in Tertullian’s time are objected, as if they were a civill distinct state from the Romans, in which they lived, or the Roman other than an absolute Monarchie by consent of the Senat (as before).
A second question begged is, that in case the King and Parliaments should neither discharge their trust, the people might rise and make resistance against both a position which no man (I know) maintaines the Parliament’s, is the people’s owne consent, which once passed they cannot revoke; hee still pursues his owne dreame of the people’s reassuming power, whereas wee acknowledge no power can be imployed but what is reserved, and the people have reserved no power in themselves from themselves in Parliament.
This groundlesse preassuming aspertion of the people reassuming power I wonder the Doctor so much insists on it.14 There is indeed a late sawcie Scurrilous pasquill that hath broken prison out of the Gate-house from a company of Delinquents there (and no marvaile if such would reassume all Parliamentary power) by the resolving title it should bee a Journyman of the same Trade to this of the Doctor’s: where after many stale malitious slanders on the Parliament’s proceedings, disproved long since by almost every man’s experience, as well as severall Declarations, all to disable the Parliament from the kingdome’s urgent preservation by any way that the written Lawes prescribe not, (as if the Circumstances and exigences of publike actions of this sort did not (above written laws) warrant and even element their justnesse) this raving Bedlam (I say) broke loose without a Keeper, (deserving (as it professes to desire) no answer, one of Vulcan’s forge I confesse were best, fire or fetters); threatens the People’s reassuming the entrusted power of Parliament, and with Salomon’s foole, Pro. 26.18. throwing about him arrowes and fire-brands and death; complaining and threatening both (according to its Title) concludes at length with this Resolution, to lay hold of what is next at hand, to the reassuming this power: otherwise for ought I know this reassumption of power is like that Popish reassumption of the House of Loretto, a meere Castle in the air of the Doctor’s brain.15
The 3d. question in this Section begged is; that we hold the cause may warrant a resistance, and here we are told what the Primitive Christians suffered without resistance: and that the Netherlands had greater cause than we to make resistance, a contrary Religion was urged on them, whereas we have ours still offered us. No, we hold not whatever cruelty can be suffered cause enough to make resistance, ’tis not the cause, ’tis the constitution of the governement, reserving in its coordination a power of resistance, in order to its preservation: otherwise were this an absolute Monarchy, should the King alone, or (as it is) should King and Parliament enjoin us all to deny Christ and worship the Sun, we were (though never so able) not to make any resistance but by suffering; the cause cannot alter the case here, ’tis the constitution must doe it: and yet, if his Majesty might (in case of Religion) helpe the Rochellers to resist their King in an absolute Monarchy, why much more might not the Parliament in this.
The sixth Section containes in substance three bitter invectives, sharpened I believe at the Philistine’s forge (the Doctor speaks of) for they defie the host of Israel.
The first calls the Parliament, a prevailing faction of a few. Is the representative Body of the Kingdome become but a prevailing faction? And how a Faction, if prevailing, though never so few, ’tis the major part prevailes, and so prevailing is the body, and can the Body make a Faction or Schisme from itselfe; if many of the Members withdraw, the more fault theirs, and shame too, to desert their trust. The Law and reason both tells us, That no man can take advantage by his owne default; so, all Parliaments and their Acts too, how easily might they be eluded? Certainly what is punishable is not pleadable, and Crompton (we see) cites the Bishop of Winton’s case herein, who was arraigned in the King’s Bench, for that he came to the Parliament and departed without its licence.
The second invective is against the Parliament’s hostile manner of proceeding in this their warre. His Majesty hath alwayes been (he sayes) upon the defensive part, questionlesse he is upon the offensive part by whom the offence comes, and that is that part in this coordinate government (that in case of such danger) refuses to doe his part, and resists the other from making supply. Surely the Doctor’s Almanacke (he speaks of) is an Erra Pater, for untill his Majesty had hostilely entered the Commons House, with the attendance of his listed Souldiery; they had scarce so much as a voluntary guard, and when they had one, ’twas not a guard on the Members’ safeties, ’twas rather on the safety of their late Act against dissolution, for if at any time that House should have been by force but kept one halfe day out of the place, where they had the day before appointed their next meeting, it had been utterly dissolved. Since then, the manning of Hull, and (after his Majesty had in the name of a guard, raised an Army to take it from the Parliament’s trust) Sir John Hotham’s humble declining His Majestie’s entrance, but untill he should acquaint the Parliament in discharge of his trust; what Hostilities were these? The setling the Militia by Ordinance (His Majesty having refused it) in order to his and his Kingdome’s defence (where note that the Statute of II Henry 7.c.I. which charges all the King’s Subjects with his and the Land’s defence, makes the rule of that defence to be according to the duty of their Allegiance, and that binds them to doe their duty whether accepted or no, and what hostility in all this? Since then, look down through the sieges of Warwick, Coventry, Banbury, Wells, Manchester, &c. even to Keynton, and what other resistance than defensive has the Parliament made? And even there too his Majesty was but followed with a Petition (as Scotland had successefully done before) untill he was pleased to turn back upon them and give fire.
The third invective in this Section, is against its distrust of the reality of his Majestie’s Protestations, to continue Religion, Lawes and Liberties, &c. To this, all that I have to say is, that be his Majestie’s Protestations never so reall and hearty, yet if there be in the Parliament’s power a surer bottome to set these on, than the most reall purposes and protestations of a mortall man they discharge not their trust if they do it not. I know his Majesty (besides his constant and fixed goodness of disposition) hath more and stronger ties upon him of honour, hazard, trust, than any else whoever; but all men must follow their principles, which in morals will and must vary with the last results of their judgements, and even those in creatures that know not by intelligence as Angels, but discourse as men, are things that upon further light must vary too; the Law as we observed before is mens sine appetitu a better bottome for government to stand on, than the most constant Resolution or Protestation that ever meer man made, besides his Majesty dispences but by his Ministers, and then his Protestations rise to no more than this, That he will governe us by such Lawes and Cannons as his Judges and Bishops will by their interpretations fit us with.
The 7 Section containes little more than a setting on the same charges with more bitternesse, calling the Parliament’s Declarations wicked Pamphlets, false, odious, scandalous imputations of this giddy age, &c. wherein both his virulence and impotence at once appears; in that (he sayes) he will with Michael use no railing accusations on the Parliament, and yet uses the most railing and accusing one of all other, in likening them as he doth (therein) to the Devill the Archrailer and accuser both; if he looke but a little further than the place he above urged in the Apostle Peter, he will tell them who they be that are thus presumptuous and do speake evill of Dignities, and that Michael did not so.
For those empty feares and jealousies (as hee calls them) grounded on reports of forraigne power and preparations, the Queene’s Religion, the great resort of Papists to his Majesty, His intercepting Ireland’s reliefe, &c. I have no more to say to these, then, than for the first; abundans cautela non nocet,16 State jealousie it has no right-hand error, none on the excesse side, its extention intends it, the more the better, an Enemy is met anywhere better than within our owne doores. Besides, if forraigne States have (possibly) with their engagements altered their designes, may we condemne the vigilancy of ours that (may be) was it that diverted those designes from us; nor are those clouds yet so farre blowne over us (as the Doctor would have it) for ought I see they grow blacker still.
2. For the Queen’s Religion it was as well knowne (as he speaks) before as now, but (may be) not so justly feared, as since we heare of so many Priests and Jesuites let out of prisons at back doors, of Pope’s Nuncios and orders of Friers in England, especially now, when we see a Popish Army raised in their defence, when the enemies of our State have armed the enemies of our Church against both.
3. For the resort of Papists to his Majesty, whom the Doctor calls such good Subjects, so much better than the Parliament: all that I will say is, that if such are become the King’s better Subjects, God help him, he hath but a few good ones left; what? such as professe to owe a greater subjection to a forraine State, and a State, not only utterly crosse centered in its interest of State, but meritoriously malicious by its very Articles of Faith to this of his Majestie’s, these better Subjects than those of his great Councell? How will Rome ring of this suffrage from the mouth of a Protestant Doctor? And yet why not the best Subjects, if we may judge by their usage? for of all sorts of men we heare not one of them by his Majestie’s Army plundered yet. Sure there is some Covenant, these Aegyptians’ doors are sprinkled with somewhat questionlesse, they enjoy this Passeover so solemnly.
Lastly, for the interception of Ireland’s reliefe, if all the rest that was taken, was the King’s, because the Kingdom’s, at least the poor Carrier’s horses were his own proper goods. Necessity is the excuse of all, but if in a man’s choice, it is no necessity at all, the definition of it is, quod aliter se habere non potest, (i.) that can no otherwise be; well, necessity is pleaded yet, but on both sides, I pray God it be not shortly on backs and bellies too. I shall only add this short Prayer, and with my very soule I speak it, God blesse the King and send us peace, and if it must not be untill one side have prevailed, I pray God it may be that side that loves the King best.
Anonymous, Touching the Fundamentall Lawes
Touching the Fundamentall Lawes,
Or Politique Constitution of this Kingdome, The Kings Negative Voice, and The Power of Parliaments.
To which is annexed,
The priviledge and power of the Parliament touching The Militia.
Printed for Thomas Underhill, and are to be sold at the signe of the Bible in Woodstreet.
Although the author of this short, but powerful, essay has yet to be identified, the tract has earned him a reputation as one of the clearest and most profound thinkers of the era. The piece was published in London about 24 February 1643, a time when some ardent supporters of Parliament felt a pressing need to shore up the constitutional bases of their cause.
The winter of 1642-43 was an anxious time for more radical adherents of Parliament. They feared that the negotiations with the Crown that had begun in December 1642 after the indecisive campaign season would end in Parliament’s submission on the king’s terms. With everything seemingly at stake, a series of parliamentary tracts appeared that were more radical than earlier works in their thrust. These probed the extent of Parliament’s powers to depose a king and even to change the constitution. The present tract is in this vein. Its nameless author attributes to Parliament sweeping powers to override laws or remove the king, all in the name of a fundamental law superior to particular laws. He even denies the king’s right to veto legislation. But he places final authority in the people themselves, not in the Parliament. With the collapse of peace negotiations in April 1643 fears of a parliamentary surrender faded and with them, for the time being, the reliance upon radical arguments.
Only one edition of “Touching the Fundamentall Lawes. . . .” appeared. It was printed in blackletter, a typeface customarily reserved for the text of laws or royal proclamations.
Touching Fundamentall Laws, and the Kings Negative Voice.
Fundamentall Laws are not (or at least need not be) any written agreement like Meare-stones between King and People, the King himselfe being a part (not party) in those Laws, and the Commonwealth not being like a Corporation treated by Charter, but treating itselfe. But the fundamentall Law or Laws is a setling of the laws of nature and common equity (by common consent) in such a forme of Polity and Government, as that they may be administered amongst us with honour and safety. For the first of which therefore, we are governed by a King: and for the second, by a Parliament, to oversee and take order that that honourable trust that is put into the hands of the King for the dignity of the Kingdome, be rightly executed, and not abused to the alteration of the Politique Constitution taken up and approved, or to the destruction of that, for whose preservation it was ordered and intended. A principall part of which honour, is that royall assent he is to give for the enacting of such good Laws as the people shall choose, for they are first to consult their own safety and welfare, and then he who is to be intrusted with it, is to give an honourable confirmation to it, and so to put an Impresse of Majesty and Royall authority upon it.
Fundamentall Laws then are not things of capitulation between King and people, as if they were Foreigners and Strangers one to another, (nor ought they or any other Laws so to be, for then the King should governe for himselfe, not for his people) but they are things of constitution, treating such a relation, and giving such an existence and being by an externall polity to King and Subjects, as Head and Members, which constitution in the very being of it is a Law held forth with more evidence, and written in the very heart of the Republique, farre firmlier than can be by pen and paper, and in which sense we owe our Allegiance to the King as Head, (not only by power, but influence) and so part of the constitution, not as a party capitulating for a prerogative against or contrary to it, which whosoever seeks to set up, or side with, doe break their Allegiance, and rebell against the State, going about to deprive the King of his juridicall and lawfull authority, conferred upon him by the constitution of this State, under the pretence of investing him with an illegall and unconstitutive power, whereupon may follow this grand inconvenience, The withdrawment of His people’s Allegiance, which, as a Body connected with the Head by the constitution of this Kingdome, is owing to him; his person in relation to the body, as the enlivening and quickening head thereof, being sacred and taken notice of by the laws in that capacity, and under that notion is made inviolate.
And if it be conceived that Fundamentall Laws must needs be only extant in writing, this is the next way to bring all to confusion, for then by the same rule the King bids the Parliament produce those laws that fundamentally give them their being, priviledges & power, (Which by the way is not like the power of inferiour Courts, that are springs of the Parliament, dealing betweene party and party, but is answerable to their trust, this Court being itselfe Fundamentall and Paramount, comprehending Law and Equity, and being intrusted by the whole for the whole, is not therefore to be circumscribed by any other Laws which have their being from it, not it from them, but only by that Law which at first gave it its being, to wit, Salus populi). By the same rule I say the Parliament may also intreat the King to produce those Laws that Fundamentally give him his being, power and honour. Both which must therefore be determined, not by laws, for they themselves are laws, yea the most supreame and fundamentall law, giving law to laws themselves, but by the received constitution or polity, which they themselves are; and the end of their constitution is the law or rule of their power, to wit, An honourable and safe Regiment of the Common-wealth, which two whosoever goeth about to divide the one of them from the other, breaks the fundamentall constitutive law or laws and polity of this kingdome, that ordinance of man which we are to submit unto; nor can or ought any statute or written law whatsoever, which is of later Edition and inferiour Condition, being but an off-spring of this root, be interpreted or brought in Plea, against this primary and radicall constitution, without guilt of the highest Treason and destructive enmity to the Publique weale and polity, because by the very constitution of this Kingdome, all laws or interpretation of laws tending to confusion or dissolution, are ipso facto void. In this case we may allude and say, That the Covenant which was 400. yeers before the Law, an after-Act cannot disanull it.
Ob. It may be objected, that this discourse seems to make our Government to be founded in Equity, not in Law, or upon that common rule of Salus populi, which is alike common to all Nations, as well as any: and so what difference.
Ans. The Fundamentall laws of England are nothing but the Common laws of Equity and Nature reduced into a particular way of policy, which policy is the ground of our title to them, and interest in them. For though it is true, that Nature hath invested all Nations in an equall right to the laws of Nature and Equity by a common bounty, without respect of persons, yet the severall models or externall Government and Policie renders them more or lesse capable of this their common right. For though they have an equall right in Nature to all the Laws of Nature and Equity, yet having fundamentally subjected themselves by their politique Constitutions unto a Regal servitude, by Barbarisme or the like they have thereby much disabled and disvested themselves of that common benefit. But on the contrary, where the outward constitution or polity of a Republick is purposely framed for the confirming and better conferring this common right of Nature and Equity, (as in ours) there is not only a common right, but also a particular and lawfull power joined with this right for its maintenance and supportation. For whereas other people are without all supreame power, either of making laws or raising monies, both these bodies of supremacie being in the arbitrary hands only of the Soveraigne Magistrate amongst many Nations, these with us are in the hands of the supreame Government, (not Governour) or Court of Judicature, to wit, the King and Parliament. Here the people (like free-men) give money to the King, he doth not take it; and offers Laws to be enacted, doth not receive them so. Now in such a constituted Kingdome, where the very Constitution itselfe is the fundamentall law of its owne preservation, as is this mixt Regiment of ours, consisting of King and Parliament, as Head and Body, comprehending Monarchie, Aristocracie, and Democracie; there the fundamentall laws are like fundamentall truths in these two properties. First, they are comprehended in a very little room, to wit, honour and safety; and secondly, they have their influence unto all other inferiour Laws which are to be subjected to them, and correspondent with them, as lawful children and naturall branches.
Ob. But in processe of time there are many written Laws which seem at least to contradict this Fundamentall Constitution, and are not they binding notwithstanding it?
Ans. The Constitution of this Kingdome which gave it its being, and which is the radicall and fundamentall law thereof, ought therefore to command in chiefe, for that it never yeelds up its authority to those inferiour laws, which have their being from it, nor ought they which spring from it tend to the destruction of it, but on the contrary, it is to derive its radicall virtue, and influence into all succeeding laws, and they like branches are to make the root flourish, from whence they spring, with exhibiting the lively and fructifying virtue thereof, according to the nature and seasons of succeeding times; things incident in after-ages not being able to be foreseen, and particularly provided for at the beginning, saving in the fundamentall law of Salus populi, politiquely established. Nor can any laws growing out of that root, bear any other fruit, than such as the nature thereof dictates; for, for a particular branch to ruine the whole foundation by a seeming sense contrary to it, or differing from it, is very absurd; for then how can it be said, Thou bearest not the root, but the root thee? Laws must alwayes relish of, and drink in the constitution or polity where they are made; and therefore with us, the laws wherein the King is nominated, and so seems to put all absolute authority into his hands, must never so be construed, for that were with a breath to blow downe all the building at once, but the King is there comprehended and meant under a two-fold notion. First, as trusted, being the Head, with that power the Law confered upon him, for a Legall, and not an absolute purpose, tending to an honourable preservation, not an unnaturall dissolution. Secondly, as meaning him juridically, not abstractly or personally, for so only the Law takes notice of the King as a juridicall person; for till the Legislative power be absolutely in the King, so that laws come down from him to his people, and goe not up from them to him, they must ever be so interpreted: for as they have a juridicall being and beginning, to wit, in Parliament, so must they have a suitable execution and administration, to wit, by the Courts, and legall Ministers, under the King’s authority, which according to the constitution of this Kingdome, he can no more suspend for the good of his people, than the Courts can theirs; or if he doe, to the publique hazard, then have the Courts this advantage, that for publique preservation they may and must provide upon that principle, The King can doe no wrong, neither in withholding justice, nor protection from his people. So that then Salus populi being so principally respected and provided for, according to the nature of our constitution and polity, so being Lex legum, or the rule of all laws branching thence. Then if any law doe by variation of times, violence of tryrannie, or misprison of Interpreters, vary therefrom, it is a bastard, and not a son, and is by the lawful parents either to be reduced or cast out, as gendering unto bondage and ruine of the inheritance, by attempting to erect an absolute and arbitrary Government. Nor can this equitable exposition of particular Statutes taken from the scope of the politique constitution be denied without overthrow of just and legal Monarchy, (which ever tends to publique good and preservation) and the setting up of an unjust and illegall tyrannie, ruling, if not without law, yet by abused laws, turning them as conquered ordnance upon the people. The very Scripture itselfe must borrow from its scope and principles for explanation of particular places, else it will be abused (as it is through that default) unto Heresies. See we not how falsely Satan quoted true Scripture to Christ when he tempted him, only by urging the letter without the equity, or true intention and meaning? We are to know and doe things verum vere, justum juste, else we neither judge with righteous judgement, nor obey with just obedience.
Ob. But is not the Parliament guilty of excercising an arbitrary power, if their proceedings be not regulated by written laws, but by Salus populi?
Ans. For the Parliament to be bound up by written laws, is both destructive and absurd.
First, it is destructive, it being the Fundamental Court and Law, or the very Salus populi of England, and ordained, as to make laws, and for them executed so to supply their deficiencie according to the present exigencie of things for publique preservation by the prerogative of Salus populi, which is universally in them, and but particularly in particular laws and statures, which cannot provide against all future exigents, which the law of Parliaments doth, and therefore are not they to be limits to this. And it would yet be further destructive, by cutting the Parliament short of half its power at once, for it being a Court both of Law and Equity (as appears by the power of making laws, which is nothing but Equity reduced by common consent into Polity) whenever it is circumscribed by written laws, (which only is the property of inferiour Courts) it ceaseth to be supreame, and divests itselfe of that inherent and uncircumscribed power which Salus populi comprehends.
Secondly, as it is destructive, so also it is absurd; for the Legislative power which gives laws, is not to receive laws, saving from the nature and end of its owne constitution, which as they give it a being, so they endow it with laws of preservation both of itselfe & the whole, which it represents.
I would not herein be misunderstood, as if the Parliament, when as it only doth the office of inferiour Courts, judging between party & party, were not limited by written lawes. There I grant it is, because therein it only deales between meum & tuum, which particular written lawes can and ought to determin. So that its superlative and un-circumscribed power I intend only as relating to the Universe and the affaires thereof, wherein it is to walke by its fundamentall principles, not by particular precepts or Statutes, which are made by the Parliament, between King and people, not between people and Parliament. They are ordained to be rules of Government to the King, agreeing with the liberty and property of the people, and rules of Obedience to the people without detainment of their freedome by the exercise of an illegall, usurped, and unconsented power, whereunto Kings (especially in hereditary Monarchies) are very prone, which cannot be suppossed by a Parliament, which is representatively the Publike, intrusted for it, which is like to partake and share with the Publick, being but so many private men put into authority pro tempore, by common consent, for common good.
Nor is the Parliament hereby guilty of an Arbitrary Government, or is it destructive to the Petition of Right, when as in providing for publick weale, it observes not the letter of the law, first, because as aforesaid, that law was not made between Parliament and people, but by the people in Parliament betweene the King and them, as appears by the whole tenour of it, both in the complaining and praying parts, which wholly relate to the King. Secondly, because of the common consent, that in the representative Body (the Parliament) is given thereunto, wherein England in her Polity imitates Nature in her Instinct, who is wont to violate particular principles for publique preservation, as when light things descend, and heavy ascend, to prevent a vacuum; and thirdly, because of the equitable power which is inherent in a Parliament, and for publique good is to be acted above and against any particular Statute, or all of them. And fourthly, because the end of making that Law, to wit, the publique preservation, is fulfiled in the breaking of it, which is lawfull in a Parliament that is chosen by the whole for the whole, and are themselves also of the body, though not in a king, for therein the Law saith, Better a mischeife than an inconvenience. But it may be objected, though it be not Arbitrary for the Parliament to goe against written law, yet is it not so when they go against the King’s consent, which the law, even the fundamentall law, supposeth in Parliamentary proceedings. This hath beene answered, that the King is juridically and according to the intention of the law in his Courts, so that what the Parliament consults for the publick good, That by oath, and the duty of his office, and nature of this polity he is to consent unto, and in case he do deny it, yet in the construction of the fundamentall law and constitution of this Kingdom, he is conceived to grant it, supposing the head not be so unnaturall to the body that hath chosen it for good and not for evill.
But it will be answered, where is the King’s Negative Voice if the Parliament may proceed without his consent? I answer, That there is no known nor written law that gives him any; and things of that nature are willingly beleeved till they be abused, or with too much violence claimed. That his Majesty hath fundamentally a right of consent to the enacting of laws is true, which (as aforesaid) is part of that honourable trust constituted in him. And that this royall ascent is an act of honour and not of absolute and negative power or prerogative, appears by these following reasons.
First, by his oath at the Coronation mentioned in one of the Parliament’s Declarations where he doth or should sweare to confirme and grant all such good lawes as his people shall choose to be observed, not hath chosen, for first, The word concedes in that oath were then unnecessary, the lawes formerly enacted being allready granted by foregoing Kings, and so they need no more concession or confirmation, else we must run upon this shelfe that all our laws die with the old king, and receive their being a new, by the new King’s consent. Secondly, Hereby the first and second clause in that interrogatory, viz. Concedes iustas leges & permittas protegendas, are confounded and doe but idem repetere. Thirdly, Quas vulgus elegerit implies only the act of the people in a distinctive sence from the act or consent of the King, but laws allready made have more than quas vulgus elegerit, they have also the royall consent too, so that that phrase cannot meane them wherein the act or consent of the King is allready involved.
Secondly, by the practise of requiring the royall ascent even unto those very acts of subsidies which are granted to himselfe and for his owne use, which it is supposed he will accept of, and yet Honoria gratia is his royall ascent craved and contributed thereunto.
Thirdly, by the King’s not sitting in Parliament to debate and consult lawes, nor are they at all offered him by the Parliament to consider of, but to consent to, which yet are transmitted from one house to another, as well to consult as consent to, shewing thereby he hath no part in the consultory part of them (for that it belongs only to the people in Parliament to discerne and consult their own good), but he comes only at the time of enacting, bringing his Royall Authority with him, as it were to set the seale thereof to the Indenture allready prepared by the people, for the King is head of the Parliament in regard of his authority, not in regard of his reason or judgment, as if it were to be opposed to the reason or judgment of both houses (which is the reason both of King and Kingdome) and therefore do they as consult so also interpret lawes without him, supposing him to be a person replenished with honour and royall authority not skilled in lawes, nor to receive information either of law or councell in Parliamentary affaires from any, saving from that supreame court and highest councell of the King and Kingdome, which admits no counterpoize, being intrusted both as the wisest Councell and justest judicature.
Fourthly, either the choise of the people in Parliament is to be the ground and rule of the King’s assent, or nothing but his pleasure, and so all Bills though never so necessary for publique good and preservation, and after never so much paines and consultation of both houses may be rejected, and so they made meere cyphers, and we brought to that passe, as either to have no lawes, or such only as come immediately from the King (who oft is a man of pleasure, and little seene in publicke affaires, to be able to judge) and so the Kingdome’s great councell must be subordinated either to his meere will, and then what difference between a free Monarchy, and an absolute, saving that the one rules without Councell, and the other against it, or at the best but to a cabinet councell consisting commonly of men of private interests, but certainly of no publicke trust.
Ob. But if the King must consent to such laws as the Parliament shall chuse eo nomin, they may then propound unreasonable things to him, as to consent to his own deposing, or to the lessening his own revenue, &c.
Ans. So that the issue is, whether it be fitter to trust the wisdome and integrity of our Parliament, or the will and pleasure of the King in this case of so great and publicke concernment. In a word, the King being made the fountaine of justice and protection to his people by the fundamentall lawes or constitution of this Kingdome, he is therefore to give life to such acts and things as tend thereunto, which acts depend not upon his pleasure, but though they are to receive their greater vigour from him, yet are they not to be suspended at pleasure by him, for that which at first was intended by the kingdome: for an honourable way of subsistence and administration must not be wrested contrary to the nature of this Polity, (which is a free and mixt Monarchy and not an absolute) to its destruction and confusion, so that in case the King in his person should decline his duty, and the King in his courts are bound to performe it, where his authority properly resides, for if he refuse that honour which the republicke by its fundamentall constitution hath conferred upon him, and will not put forth the acts of it, for the end it was give him. viz. for the justice and safety of his people, this hinders not but that they who have as fundamentally reserved a power of being & well being in their own handes by the concurrence of Parliamentary authority to the royall dignity, may thereby provide for their own subsistence, wherein is acted the King’s juridicall authority though his personall pleasure be withheld, for his legall and juridicall power is included and supposed in the very being, and consequently in the acts of Courts of justice, whose being he may as well suspend as their power of acting, for that without this is but a cypher, and therefore neither their being nor their acting so depend upon him, as not to be able to act and execute common justice and protection without him, in case he deny to act with them, and yet both so depend upon him, as that he is bound both in duty and honour, by the constitution of this polity to act in them and they from him, so that (according to that axiome in law) the King can doe no wrong, because his juridicall power and authority is allwayes to controle his personall miscarriages.
God and nature hath ordained Government for the preservation of the governed. This is a truth so undeniable, as that none will gainsay it, saving in practice, which therefore being taken for granted, it must needs follow that to what end Government was ordained, it must bee maintained, for that it is not in the power of particular persons or communities of men to depart with selfe preservation by any covenant whatsoever, nor ought it to bee exacted by any superiours from their inferiours, either by oath or edict, because neither oathes nor statutes are obligatory further than they agree with the righteous Laws of God and nature; further than so they ought neither to be made nor kept.
Let it be supposed then for argument sake, that the Militia of the Kingdom, is in the power of the King, yet now as the case stands it is lawfull for the Parliament to reassume it; because though they passed it into his hands, for the people’s preservation, yet it was never intended that by it he might compasse their destruction, contrary to the Law of nature; whereby every man, yea everything is bound to preserve itselfe. And thus much in effect is confessed at unawares, by the Author of the Reply to the Answer of the London Petition:2 who affirmeth, saying, The King is invested with the sole power of Training, Arraying, and Mustering, and then gives the reason, because it is most consonant to reason, as well as grounded on Law, That he which is bound to protect, should be able to compasse that end. Which reason overthrows both his position and intention. 1. His position, for this is no reason why the sole power of the Militia should be in the hands of the King; because he is bound to protect, except he were bound solely to protect, that is, without the counsel and advice of Paliament: but it hath beene resolved that He is not sole judge of necessity, and therefore not sole protector against it, but together with His Parliament, who consequently shares in the power of the Militia. 2. It overthrows His intention, which is so to put the power of the Militia into the hands of the King, as to enable him to do what he will with it, when as yet he himself cannot but affirm, it is his to protect withall, so that when he ceaseth to use it to its end, it ceaseth to be in his power, or else let the man speake plain, and say, it is His to destroy as well as to protect.
Ob. But the Militia is passed to the King, absolutely without any condition of revocation expressed, or of limitation to circumscribe the use whereunto it ought to be imployed.
1. Ans. Laws of God and nature, neither are nor need to be expressed in contracts or edicts, for they are ever supposed to be supreme to human ordinances, and to chalenge obedience in the first place, and other Laws so far only as they are consonant to them, though these Laws be further backed with Oathes and Protestations. As for instance, I give a man a sword, and sweare I will never take it from him; yet if he actually assault me, or it manifestly appeare he intends to cut my throat, or take my purse with it, I may lawfully possesse myselfe of it again if opportunity serve, because in such agreements betwixt man & man, the laws of nature neither are nor can be exempted, but are necessarily implied, still to be of force, because no bonds can lawfully invalid them, and id solum possumus quod jure possumus.3 But it may be asked how it appears that the King intends to imploy the Militia to the destruction of this people. Why first because He hath refused to hearken to the wholsome counsel of his Parliament, the representative body, and the highest Court and Counsel of the Kingdom. 2. Because, è contrario, he hearkens to the councels of notorious Papists and Malignants, men engaged against the publike good and welfare of this Kingdome, in a diametrall opposition, so that if they perish it prospereth, and if it prosper they perish. 3. Because hee hath had a deepe hand in contriving and plotting the ruine and extirpation of the Parliament, by secret and open violence, and in them of the whole Kingdome of whom they are the Epitome, and as the King is the head, so they are the heart. But further it may be replied, that the King hath promised to maintain Parliaments and governe by Law. Ans. That is so far as he knowes his own heart, and as he can be master of himselfe. He sware the same at His Coronation, and promised as much when he granted the Petition of Right, but how they have beene kept God knowes, and we are not ignorant. It may be His Majesty may meane as he speakes, but 1. Temptations may change his minde, as it hath done too often, and as it did his that said to the Prophet, Is thy servant a dog that he should do such things? and yet did them. The welfare of Kingdomes is not to be founded upon bare spontaneous promises, but reall contracts. 2. He himselfe sayes, he himselfe is not skilled in the Laws, and we have found it true, so that he must take information of them from somebody from his Parliament (that is his people that made them) he will not, and are any fitter to be Judges of the Law, than the highest Court; if they may be Judges that are delinquents to the Law, and Malignants against it, and have beene grievous oppressors of the People, even against the known Laws (so much cried up) we are like to have just Judges and righteous Lawyers.
2. Ans. If the Militia be so absolutely the King’s, as that all power of defence and preservation of ourselves and our rights be taken from us, to what purpose do we strive for liberty & property and laws to confirm them? These are but imaginary things, if they have no hedge to fence them. If the Militia be for the King, let us burne the Statutes we have already, and save a labour of making more. No man would thinke it a good purchase to buy land, and when he hath paid his money to have it in the power of the seller, to take it from him by his sword.
Ob. It is true that Kings are tied by oath, and legall contracts, to governe by Laws, and to maintain liberty and property to their people, which puts them under an obligation of conscience to God, so that they are responsible to him for the breach of fidelity and duty, but not to the people who may minde them of their duty, but not compell them to it.
Ans. This Objection hath two parts, First, That Kings are only responsible to God. 2. That Subjects must suffer wrong, but not by force maintain their right. To the first I answer. That if Kings be solely answerable to God, then contracts are in vaine, for they shall answer for all their arbitrary and unjust tyrannie over their people, though there were no contracts. That which makes us happier than other Nations, sure is not this, that the King for the breach of his duty hath more to answer at the day of judgement than other Kings have, if that bee all wee have small cause to joy in our priviledges, they are neither worth the blood that hath been shed for them, nor the money that hath beene paid for them. Secondly, Government must be considered under a twofold notion, divine and human. The Genus which is government itselfe is divine, so that people are absolutely bound to have government, but not bound to have an absolute government for the species or the modus gubernandi is human, and therefore the Apostle sayes, Be subject to every ordinance of man, that is, to every such kinde of Government as your lot falls to be under, by the constitution of the Common-wealth you live in. Now Government being thus of a mixt nature, the Ordinance both of God and man, it is not only subject to God but also to men, to be regulated, amended, and maintained by the people: for as it is God’s Ordinance for their good, so doth he give them liberty to provide it bee not abused to their hurt, so that when God shall put an opportunity into other hands, they ought to improve it to the setting of government up right, or the keeping of it so from apparent violations. There was a time when both Government and the manner of governing belonged to God, to wit, amongst the Israelites, for to that people he was both a God of moralls and politiks, and therefore he tooke it so ill for them to usurpe upon his right, as to desire to change their government from Judges to Kings, but this was a peculiar right he assumed over that particular people only. To the second I answer thus. Every Subject taken divisim, and apart from the whole, is to suffer under abused authority, and to obey passively, rather than to breake union or cause confusion, but no Subject is bound to suffer by that which is not authority, as is the will of the Magistrate. If a Court of Justice should unjustly condemne a man, he is patiently to undergoe it, but if a Judge or the King himselfe should violently set upon him to kill him, he may defend himselfe; for the Ordinance of God and man both, is affixed to the office, and not unto the person, to the authority and not unto the will, so that the person acting out of office, and by his will may be resisted, though the ordinance may not. But the representative body of the Common-wealth, (which is all men conjunctim) they may not only oppose the person and his will, but even the office and authority itselfe when abused, and are bound to it both in conscience to God when he gives them opportunity, and in discharging of their trust to them that imployed them. For first God calls to have the wicked removed from the Throne, and whom doth he call upon to doe it but upon the people (in case the King will not) or their trustees, for as he hath originally founded all authority in the people, so he expects a discharge of it from them for his glory, & the publike weale, which are the ends of Government, from which God and nature hath ordained it. Secondly, In discharge of their trust for the whole, for order sake, making them their representative actors, and putting that universall and popular authority that is in the body of the people, and which (for the publike good, and preservation) is above every man and all Laws, into their hands, they may expect and chalenge them by vertue of their stewardship, to provide for their safety and well being, against whomsoever shall oppose it, no one being above all, and therefore ought not that universall power, which by way of trust is conveyed over to the Parliament be betrayed into the hands of any by admitting or allowing any authority to be superiour, by tollerating abuses and usurpations, as if they had not power to regulate them.
William Ball, Constitutio Liberi Populi
Constitutio Liberi Populi.
In Deum Omnia.
Printed, Anno Dom. 1646.
Little information has survived about William Ball of Barkham, esquire. He and his friend Sir Francis Pile, baronet, to whom he dedicated “Constitutio Liberi Populi. . . ,” were both from Berkshire. Ball was probably the William Ball, attorney of the Exchequer Court’s Office of Pleas. If so he started out writing as a royalist pamphleteer but apparently had a change of heart by 1645 when he stood for, and was elected to, the Long Parliament for Abingdon. Certainly the views expressed in this tract published the following year would have placed him among the radicals.
The preface of the present tract is dated 12 May 1646, the month Charles I surrendered. The probable publication date was 18 June 1646. The collapse of the royal cause with the surrender of the king had provoked urgent discussion about the appropriate shape of a future government. Concerns that had arisen during the first winter of civil war, when Parliament was negotiating with the king, reemerged with greater force. Again there was the danger, as radical supporters of Parliament saw it, that members of the Commons eager for a settlement might betray the cause.
Ball’s tract makes it clear, however, that he was a champion of popular, not parliamentary, sovereignty. He insists that if a people are free-born as the English are, ultimate power resides in them, not in their government. That being so if either the king or Parliament attempted to deprive them of their rights, the people were entitled to resist. In this he differs from the Levellers who looked to representative government to protect the people. When Levellers referred to appeals to the people, they meant new elections. Their goal was to make parliaments more truly representative.
“Constitutio Liberi Populi” appeared in a single edition. Other tracts by Ball would follow. In 1648 he engaged in a lively published exchange with the imprisoned royalist judge, David Jenkins, over the power of kings and the role of the people. There is uncertainty over Ball’s activities after 1648. Although he was not purged from the Long Parliament by Colonel Pride in December of that year, he did not serve in the Rump Parliament that succeeded it. Ball’s friend Pile had been elected to Parliament about the same time as Ball and, like Ball, was not excluded during Pride’s Purge but does not seem to have sat in Parliament after that event. Both men may have been so distressed by the army’s purge of Parliament that they chose to abandon their seats. Such behavior would have accorded with Ball’s views about sovereignty residing with the people. In any event Ball continued to publish during the 1650s.
Constitutio Populi Liberi. Or, the Rule of a Free-Born People.
First, Reason is Queen-Regent of Human Affaires; by the sight whereof men discern to walke in the prudent paths of Morality and Policy, even as by the Light of the Day they discerne to tread the paths of the Earth. And albeit that this interior light of understanding is in Divine things darkened, by the fall of our first Parent, yet doth the Eternall Light ever communicate to Mankind sufficiency of Reason (I intend for worldly things) thereby to direct his goings out, and comings in (according to the unnecessitating determination of God) as it were by a cloudy Daylight, though not a cleare Sunshine, whereby the Actions of men may severally be discerned.
2. Not long since I wrote a small Treatise, intituled, Tractatus de jure Regnandi, et Regni, or the Sphear of Government,1 the which albeit I conceived that I had squared it according to the Rule of Reason; yet some conceive, that it wants its true proportion, or line, and that I have too much extended the Innate liberty of the Free-born People of England: to satisfie (or otherwise convince) such, I have published this Epitome of State-Rule, or Government, desiring all men to weigh, and consider what I have written, not with the Prejudicating Eye of Affectation (which many times misleadeth apprehensive judgments) but with the Ballance of Reason to ponder every Graine, and if the weight be just, and levell to approve, and accept of it; if somewhat too light, to adde of their own understandings what is deficient.
3. It is certain, that had Man never fell from his state of Innocence, there had been a superiority, or rather priority in Nature (viz. That the Parent should have been known and reverenced as the Instrumentall cause of the Child, &c.) but there had been no soveraignty, and consequently no subjection; for had there been no sinne there had been no need of a justiciating Power, nor a Subject to which that Power could have determinated, or terminated itself; every man’s Actions would have been regulated by the Eternall Law, written in the hearts of men; So that there had been no need of Additionall, or Nationall Lawes. Wherefore (by the way) I cannot assent to the Opinion of that Gentleman (Fortescue) who said, that all Mankind should have been governed by the Lawes of England, if Adam had not sinned in Paradise; for by his favour if Adam had never sinned [in School-Reason, or Divinity] he had either always lived in Paradice, or else finished a compleat thousand years (which the Apostle Peter calls a Day with God, 2 Pet. 3.8.) and then had he either been assumed into Heaven alive, or else (if God had decreed a separation between his Soul and Body) he had yeelded himself into the hands of his Creator, sine dolore mortis, sine timore paenae, without pain of death, or fear of punishment, and had left his Earthly habitation to his posterity, who should have possessed and enjoyed the same, without any the least contention, or controversie, regulated only by the Eternal Law aforesaid. But (to return) no sooner sinne, but with it subjection entered as a curse, and therefore God said to woman, that she should not only bring forth in pain (which God would have dispenced withall if she had not sinned) but also that her desire should be subject to her Husband, and he should reign over her, Gen. 3.16. It is very probable that if she had not sinned, she should notwithstanding have tendered a reverence to her Husband as more noble in Sex and created before her in time but she should not have rendered a subjective Obedience, if disobedience had not made her subject.
4. And albeit that subjection is a scourge of sinne, yet it hath pleased the Almighty according to his divine will, to cause some Persons, and Nations, to be more subject than other some; many times enthralling, and enslaving them by Tyrannicall, or Imperious Instruments for their sinnes (as the sacred Bookes of the Judges, Kings, and Chronicles sufficiently declare) and upon their Humiliation, or for other secret causes known to his Divine wisdome, he hath mercifully released, or mitigated their yoak, as the sacred Writ yea and human Records testifie at large. And sometimes God hath done this by speciall, or miraculous meanes, as he did to the people of Israel; sometimes by ordinary wayes, as the Florentines (albeit of late enslaved) purchased their liberty of the Emperour for money, and so also did other Cities of Italy, and elsewhere in Europe, others by plain defiance and Arms, have regained their Freedome (that is, to dispose of themselves) as did the Cantons of Switzerland, the Provinces of Holland, Zeland, &c. and either of these wayes may be said to be just; for Id Iuris est, quod Nationis est, that is lawfull, or Law which a Nation generall approveth, or admitteth of; and there need no speciall Warrant from God for anything that they shall do agreeable to their Naturall, or Human Reason, anymore than it needed to the petty Kings and people of Sodom, and Gomorrah (instanced in my former Treatise) or to the Nation of the Jewes in the time of the Machebees. And albeit that a Nation in generall should approve, and admit an erroneous Law (as I know not any Nation, State, or Parliament that is infallible) yet such Law ought to be kept, and observed as a Law, because men have power to tie and oblige themselves to inconveniences (if God prevent not and prudent Reason dictate not the contrary) as to conveniences, and their Errour being Nationally generall, must either be admitted of all persons (comprehended within their Rule) as legall just, or else permitted, because it is constituted by the highest Power human, from which there is no appeale but to God, who in his good time will either mercifully illuminate their understandings or reform their Errour, or justly chastise them for their perseverance in Errour.
5. And the Rule of a Free-born People, or a People free to dispose themselves consists in that, wherein the People in generall constitute or determine themselves, not in that wherein they are constituted; or determined, tanquam ab alio agente, by some other instrumentall cause, for then are they not free. So that it is destructive to the very Essence of their Freedome not to be able to determine themselves to that which they conceive to be Bonum commune, that being their adaequate, and proper object. And this they must not be able to do sometimes only, and originally, but perpetually, otherwise, deficiunt a libertate proprie loquendo, & sunt tantum liberi secundum quid, vel denominative; they cease to speak truly, to be free, and are only free in Denomination or a kind of Titulary Freedome; for naturall Reason dictates, that everything ceases to continue, when the Form thereof, or the Originall Form ceases to be; so that if a people can Originally dispose or determine themselves, and cannot afterwards Actually do it, their Original power, or form of disposing or determining themselves ceases to be—But it is to be noted, that no People in the world (intending to be free) subditi potius quam subjecti, and who have either conserved their Originall Freedome, or Actually regained it, do, or did ever grant a Power to one, or more or constitute a Power in one, or more that should be destructive to their intended Originall Freedome; For as John Cook of Gray’s Inne Barrester, in his Epistle Dedicatory, in a Booke entituled the Vindication of the Professours, and Profession of the Law,2 hath ingeniously said; All Power and Authority is given for preservation, and edification, nothing for destruction and desolation; so that albeit a People, or Nation, to avoid disorder, do constitute a Ruler, or Rulers to conserve Order and do generally consent to direct their human Affaires according to such Rules as shall be by him, or them, or both given or prescribed; yet they ever intend that such Rules must not be directly opposite, or against the Law of Nature, or their Naturall Liberty. If they be, they may chuse whether, or no they will admit, or receive them; they constitute, or institute their Ruler or Rulers their power extensive, but not primitive, or intensive, that is to say, their innate and inseperable Freedome ever intended to dispose, or determine themselvs, In bonum commune prout omnibus visum erit, this they never part, or parted withall; for at what time soever they should do it, they cease to be Populus liber, or liberi subdita, a free People, or a People which are freely under a Law by common consent as aforesaid—And of this I shall instance a similitude in Nature: The Element of Water is not of itselfe extensively coloured, but is apt or applicable to receive any colour; yet it is intensively white (it being Nature’s Innocent Originall colour) as is sufficiently discerned, when it is converted into Snow, or congealed into Ice, or praecipitated Torrent-like, by an extraordinary fall. So People or Nations are not of themselvs extensively regulated but apt or applicable to receive any Rule, which they, whom they institute, or intrust, shall apply unto them; howsoever they are intensively free to dispose themselves (it being their Natural-Innocent-Originall Rule) as is sufficiently discerned by the severall Alterations of Government in Athens, Rome, Geneva, Switzerland, Holland, and many other places, where the people’s affections have been either congealed by their over-domineering Lords (as it were creatures of the second Region of the Aire) or (Torrent-like) have been praecipitated by an extraordinary fall, occasioned by some violent disturbers of their common Liberty (τὸ ἀνθρόπινον ἀγαθὸν) the generall benefit of Mankind. For my part, Anathema be to such, who desire to deprive a King of His just Prerogative; Anathema be to such, who desire to deprive a Parliament of their just Priviledge: but Anathema Maranatha3 be to such who should any way desire to deprive a Free-born People of their just Liberty, or Propriety.
6. Nor can I conceive, but that the English Nation, or People are (if rightly considered) one of the most freest Nations in the World; for they cause, or require their Kings to take their Oaths to conserve their Lawes and Liberties, before the Crown actually invest their Temples; thereby shewing that they reserve, and intend their generall Liberty and Propriety. And albeit, that a King of England have his Ius Regnandi, or Right of Reigning by Inheritance as I have instanced in my former Treatise; yet illud jus quamvis sit quoad potentiam, sive officium potestatis derivativum, est tamen quoad exercitium potestatis Relativum, that Right of Reigning, although it be derivative in respect of the King’s personall Authority, or rather Office for Authority, yet is it relative in respect of his Exercising, or performing that Authority; for though the people obey the King as their chiefe Ruler, or Magistrate before his Oath taken, yet it is ever with reference, or relation, that He should take His Oath for their preservation, and good in generall, and performe the same; otherwise they have recourse to their primitive, or intensive power, as in the case of Edward the second, from whom Sir William Trussell, Speaker of the Parliament, in the name of all men, or people of England, constrained, or took his Royall Office, or Authority; or to speak more truly, deprived him of it, without any former precedent, exercising the intensive power of the people; for Trussell said not to EDWARD the second, in the Name of the Lords and Commons assembled in Parliament, or in the Names of the Commons assembled in Parliament, but in the Name of all men or people of England, &c. thereby expressing, or manifesting the People’s Primitive, or intensive Power, more than the Parliament’s secundary or extensive Authority.
7. And as the English Nation, or People cause their Kings formally to swear, or take their Oaths to conserve their Lawes, and Liberties; so they cause the Parliament (I meane the Body collective, or representative of the People, viz. the Knights, Citizens, and Burgesses) to take their Oaths (if not formally) yet at the least virtually, to conserve their generall Liberty, and Propriety, to do all good they may for the places that intrust them; all which they faithfully promise at their Elections. So that the English Nation, or People never gave, or voluntarily assented, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary power over them, but only a Discretive, or Legall Authority intended ever for their good in generall; their ever reserved, and as it were Essentiall Propriety.
8. Wherefore I cannot but marvell at such (whether Kingly Royalists, or Parliamentary Realists, in this case it makes no matter) as by a kind of Idolizing King, or Parliament, or King and Parliament, would suppose, or perswade the People that their Lives, Liberties, and Proprieties are disposable by King, and Parliament, ad Placitum; one John Cook of Graye’s Inne Barrister,4 by me already cited, hath in his Vindication of the Professours, and Profession of the Law inserted, that I have in my former Book, intituled, The Spheer of Government,5 introduced a dangerous Opinion, by putting, or stating a supposition, or rather a Praesuppositive case, that if King, and Parliament, or King, or Parliament, should make an Act that they would, and might dispose of all Subjects’ Estates in England (he should have added ad Placitum, for those are my words) that in such case the Counties, Cities, and Townes corporate might if not remedied declare, and protest against such an Act, if violated, then they might defend themselves by Armes. And to convince this my Assertion, in the next Page, he sayes, if the supream Court be not supream to all intents, it is not supream to any intent, because there is an higher above it. This is no good consequence; for a Power (and consequently a Court of Power) may bee supream to some things, yet not to all. The King of Polande, for life, is supreame to appoint what place he thinks fit within the Precincts of the Dominions of Poland for the convening or assembling the Diets, or Courts of the Peers Spirituall and Temporall of that Kingdome; and the King of Poland is also supreame to censure, or punish any of his owne Tenants, and Vassals, or Slaves; yet is he not supreame to censure, or punish any of the chiefe Nobility, but by consent of his Assembly, or Court of Peers; nor can hee meddle with any of their Tenants, Vassals, or Slaves; or determine absolutely of Peace or Warre, &c. In the Common-Wealth of Geneva (which he calls a pure Democracy) the People in generall are supreame to nominate, or elect Two Hundred which are the Grand-Councell; and those Two Hundred are supreame to nominate, or elect the Twenty five, and yet not supreame to elect the foure Syndiques, or Annuall Governours, or rather Rulers, &c. So that it is no good consequence (as afore-said) to affirme that, if the Supreame Court be not supreame to all intents, it is not supreame to any intent, because there is another above it. For in Geneva it is evident, that the Two Hundred or Grand-Councell, is the supreame Court, and yet not supream to all Intents; the People indeed, or Common-Wealth in generall, (which are the supreame Power, though not Court) are supreame to all Intents; but of that hereafter.
9. But the Gentleman sayes, that there are in the Kingdome so many thousand Acres of Land, either the Parliament may settle, and determine the Right of all their Acres (hee meant surely those Acres) or not of any one of them, for there is no medium, &c. But what is this to the purpose, of the Parliament having a power to dispose of all Subjects’ Estates ad placitum? Who knowes not, but that the Parliament can determine the Right of all Acres in England, in foro judicii, as v. g. the Parliament can determine whether White Acre belong to Right to Oakes, or Stiles, let the Title of either of them be never so difficult, or obscure, and the Parliament can determine whether or no, Oakes or Stiles have forfeited their Propriety of, or to White Acre for Delinquency, &c. Moreover the Parliament can (which no other Court can doe) applicare in necessitatem Regni, apply to, or for the necessity of the Kingdome so much of the profits of White Acre, as to them shall seeme convenient; provided that the cause, or causes thereof be made manifest, that Oakes, Stiles, and all men may (if they will) take notice thereof; and provided also, that an Accompt be given how and which way the profits of White Acre have beene for such cause, or causes applied, and disposed of; for no Free-born Englishman (much lesse the Nation in generall) ought to be deprived of any his Right, or propriety without good cause. Notwithstanding the Parliament of England cannot disponere ad Placitum, dispose at their will and pleasure barely of White Acre (no, nor of one Acre of waste in England) v. g. that whereas White Acre belongs of Right to Oakes, Stiles shall notwithstanding have it because it is their will and pleasure; this they cannot doe; for at what time they should do it (albeit I suppose it almost impossible that they should do it, as I have formerly instanced) they faile, or fall from the Protection of the People, and usurpe to themselves an absolute Arbitrary and irregular Power, destructive to the generall good of the People and consequently cease to be a Parliament, and become Tyrants and Oppressors.
10. I cannot therefore but somewhat admire, that a Lawyer, and one that seemeth unto me to have understood Logic, should be (having been as it seemes to me sometimes seasoned with Intellectuals) so unsound in his Intellectuals, as not to distinguish between Disposing at Pleasure, and Determining of Right, or setling according to Right, being things of a different species, and not magis, or minus, in the same species. But it is not amisse to take a little notice how the Gentleman opposes himself; in his Book Page 4. he sayes, it is resolved in the Earl of Leicester’s Case, that an Act of Parliament against the Law of God and Nature is void; but this must be cautiously understood (sayes he) that I speak not of secundary, or lesse principalls of Nature, &c. Pray let him tell me, whether to dispose of Oakes’, or Stiles’ white Acre ad Placitum, be not directly against the Law of God and Nature; the Decalogue sayes, Thou shalt not steale; Thou shalt not desire thy Neighbour’s house, &c. And Nature dictates, doe, as thou wouldst be done unto. Now he, or they that dispose at their owne pleasure, of their Neighbour’s Acre, or Acres, do steale, for that he, or they deprive their Neighbour, or Neighbours of their Right, and Propriety; they covet also, for that they desire, and acquire to themselves a power of disposing at pleasure; they oppose also directly the Law of Nature, for they would not have anyone to dispose of their Propriety ad Placitum, or at their own wills, and therefore ought not to doe it to another; so that if the King and Parliament should make an Act, or King, or Parliament make an Ordinance, that they might dispose of all Subjects’ Estates, ad Placitum, &c. they oppose the Law of God and Nature, and even by his own citation, and assertion, it is void. And I am sure it is also directly opposite to the Rule, frame, and constitution of a free Nation (such as are the English, being no Turkish, or Muscovian slaves) where the Rulers and Governours are but intrusted (as I in my former Treatise have instanced) for the generall good of the Nation. And the Gentleman, albeit he hath cavelled at me in the latter end of his Book, yet hath he confessed, and acknowledged as much in his Epistle Dedicatory in two severall places. The first is by me already cited, notwithstanding I will mention the words again; which are, all Power and Authority is given for Preservation, and Edification, nothing for destruction, and desolation; the others in the same page are, for by the fundamental constitutions of this Kingdom, and the very frame and series of Government, the Power is intrusted into their hands to superintend and supervise all other Courts of Justice. Now surely if Power be intrusted to the Parliament (as truly it is) then can they not go beyond their Trust to dispose of the Free People of England their Estates, ad Placitum, but only to determine of them, ad Rectum, or Ius, or to apply them ad necessitatem Regni, to or for the necessity of the Kingdome, of which necessity they are the Judges. The Gentleman sayes, that many a man marries a widow that would be gladly rid of her children. For my part, I know not whether, or no, the Gentleman be married; or whether he have married a Maid, or Widow, but I am sure (if he rightly consider it) he may be glad to be rid of his sickbrain begotten Childe [his Asserveration that the Parliament is unlimited, and consequently may dispose of all the Subjects’, or Peoples’ Estates, ad Placitum] for I verily believe, that no man found in his Intellectuals will harbour it, or give it entertainment, nor can himself sustain it.
11. I grant him that the Parliament is the highest Court extensive (viz. to conserve the Rule, Order, &c.) but the People in generall (viz. the Counties, Cities, and Towns corporate) are the highest, or greatest Power Intensive, in that they are the efficient, and finall cause under God, of the Parliament. Now the efficient and finall causes are the most noble of causes, nor are they, or can they be subject, or subordinate to their owne effects, so farre forth as they are causes of such effects; so that the Parliament can never deprive the Counties, Cities, and Towns Corporate, by an Act, or Ordinance whatsoever, of their innate, and inseparable Right and Power of Electing, or creating Knights, Citizens, and Burgesses, de futuro, or for time to come, whereby a Parliament might be instituted, or assembled by any other way, than by way of free Election. No more can the Parliament deprive the free People, or Nation of England, of their Generall Liberty, and propriety, for in these things the Sphear of the Parliament’s Activity is circumscribed by the Nation’s large Bulke of Primitive, or intensive Power. Wherefore the Gentleman mistakes when he sayes page 89. It is impossible that the supreame Court in any Kingdome should be limited, &c. In these Precedents, amongst free Nations all supreame Courts are de facto, limited; as in Aragon, Geneva &c.
And for my part, I cannot find that the Parliament Practiceth an unlimited or absolute Power, for amongst other things they have instituted Committees, and Sub-Committees of Accompts, not only to vindicate themselves from the scandall imputed by some, (viz. that the Parliament should exact more from the people than the necessity of the Kingdome required, &c.) but also to give the people a generall satisfaction, how, and which way their Estates are applied, and imployed for the Necessity of the Kingdome.
12. And now I think good further to satisfie the Gentleman and such as adhere or incline to his opinion aforesaid, concerning the Primitive or Intensive power of a free People. I have already said that a free People are ever free to dispose, and determine themselves in Bonum commune, prout omnibus vissum erit, to a generall common good, as it shall seeme good to themselves: and that they never part, or parted with this power, for that at what time soever they should doe it they cease to be Populus liber, or liberi subditi, a free People &c. And to make this Assertion more conspicuous, and plaine, I instance this simile; Joint Free-holders, or Free-holders jointly, let a Lease for one thousand, or two thousand yeares, if the World endure so long, with reservation notwithstanding of a continuall acknowledgment to themselves, or otherwise the said Lease shall determine, and cease to be, and it shall be lawful for the said Free-holders, their Heires, or Successours to reenter into the said Free-hold, or Free-holds, and to dispose and settle them, at their pleasure. Even so a free Nation, or People let a Lease of their power for one thousand, two thousand, ten thousand yeares if the World so long endure, (no matter what time) to their Rulers (whom they institute and intrust) in which they give and grant power to them of Determining conserving, and applying their Liberties, Rights, and Proprieties justly, So to the particular good of every man, as may not repugne the generall good of all; so to the generall good of all men, as may not annihilate the particular good of one unjustly, or indirectly; with reservation notwithstanding of a continuallacknowledgment to, or for themselves, that they (viz. the Nation, or People) are the efficient cause of their power, by electing, and creating them; and that they are not to domineer over, or dispose of their Liberties, and Proprieties, ad placitum, but only to determine of them ad Rectum, and apply them to the generall good of the Kingdome, according to the necessity of the Kingdome, Nation, or People, as aforesaid; if otherwise their Power determines, and ceases to be; and it may be lawfull for the Nation or People to re-enter viz. to make use of their first primitive power, and to dispose and settle themselves at their pleasure, or as they shall think good. And even as the Free-holders cease not to be Free-holders, notwithstanding their long Lease, for that there is a Reservation of a continuall acknowledgment due unto them, and a power of Re-entry in case of Breach of Covenants, and the like; even so a free Nation, or people, cease not at any time to be free, notwithstanding their long Lease of Trust, for that there is a Reservation of a continuall acknowledgment belonging unto them (viz. that they are the efficient cause, de saeculo in saeculum, from Age to Age) and they have likewise a power of using their power primitive, and intensive, or power alwayes intended and reserved, in cases aforesaid. Notwithstanding, as the Free-holders cannot re-enter, but only in case of Breach of Covenant aforesaid; for if otherwise they do it, they are meere usurpers, and Oppressours; so the free Nations, or people cannot use their primitive, or intensive power, but only when the fundamental frame of their Efficient Power and their Liberties, and Proprietie are destroyed or violated ad placitum, as aforesaid, if otherwise they doe it they are meer Rebels and Anarchists, for they have intrusted all their other Judiciall Power concerning Determination, Conservation, and Application to their Rulers.
13. The Gentleman whom I have formerly cited hath said in his Book, that he never heard or read of anything more prejudiciall to the Parliament’s Authority, than my Assertion in my last Book, and in this, (viz. that the Parliament cannot dispose of the Free-people, or Subjects’ Estates here in England, ad placitum; but I must tell him that I never read of a more prejudicious, or pernicious to the Parliament, than to say that they may doe it; for what say many of the vulgar; if the Parliament may dispose of our Estates at their pleasure, how shall wee know that they will not? If any man tell them, that it is very unlikely, that so many will never consent to doe such a thing, for that they might by that means enslave their own Posterities. What say they, if they can dispose of all the Subjects’ Estates ad placitum, for ought we know they might exempt themselves, their Heires, and Successours; and likewise for ought we know they might make a Law that they will no more be Elected, or created by the Counties, Cities, and Townes Corporate, but by a perpetuall Denomination by, or from themselves. And what can be of more dangerous consequence, than that such an Opinion, or Opinions as these should once take root in the mindes of the Common People? And what can sooner cause them to take root than that they finde and reade a printed Booke allowed of to that purpose? But if one tell the vulgar, that the Parliament cannot dispose of the Subjects’ Estates ad placitum, or meerly at their pleasure, but that they can only apply in an equall way the Estates of the People to, or for the necessity of the Kingdome, of which Necessity they are the Judges; and likewise that the PARLIAMENT cannot make a Law, or Ordinance, that the Knights, Citizens, and Burgesses, shall, or may be appointed, or denominated by themselves (thereby to alter the frame and constitution of this NATION) but that they must perpetually from Age to Age be Elected, or created by the Counties, Cities and Towns Corporate; then they begin to harbour a better Opinion, and are more inclinable to undergoe their Ordinances. And I believe that the intent why the HONOURABLE HOUSE OF COMMONS published lately a Declaration the Seventeenth of April, 1646.6 Ordered to be read in Churches, was to undeceive the People that they never had any thought to dispose of their Estates ad placitum, and so forth; for they expresly say, and Declare, To maintain the Ancient and Fundamentall Government of this Kingdome, to preserve the Rights and Liberties of the Subject, &c. Wherefore I would not have the Gentleman, or any other to run beyond the marke; I like not Quid nimis, it hath been the cause of many Enormities in Church and Common-wealth. For my part I wish, as I have ever wished, and formerly expressed myselfe, that the King might enjoy his just Prerogative (as some call it) or Right of Reigning; and I wish, and desire as much as any other, that the Parliament might sustain their Priviledges, and Judicatory Power. But I could never suffer, nor would I if it were in my power any way to prevent it, endure that my Nation, or Fellow-Subjects should be enslaved by any Exorbitant Power (Potentate or Potencies) Forrain or Domestic; And I doubt not, but that the Ruler of Heaven and Earth will by his Divine Providence establish such Rulers and Rules in this KINGDOME, as may be a meanes to conserve this Nation from slavery and thraldome, AMEN.
Furthermore, having in my former Treatise and in this affirmed that the Parliament is the supreame Power Judicatory to censure and determine all matters doubtful, and disputable (for such hath been the constitution of this Kingdom for many Ages) I conceive therefore that the Parliament may, and have only Power to settle what form of Religion they shall think good; and albeit they should erre therein (as Parliaments may erre, and some de facto have erred) yet their Ordinances oblige Iure humano; that is, men ought either to obey such Ordinances, or if otherwise their Consciences dictate such Ordinances to be erroneous, they ought to undergoe such penalties as should be by them inflicted if they should impose or ordain any such. And as it is in the power of the Parliament to inflict penalties, so is it in their power to mitigate penalties, or inflict none at all for matter of Religion; wherefore for my part I greatly honour and reverence the care that the Parliament seemeth to take, and which the Honourable House of Commons have published in their Declaration 17. April 1646. already mentioned, That they have not as yet resolved how tender Consciences, such as differ not in Fundamentals may be provided for, so as may stand with the peace of their soules, and peace of the Kingdome; thereby intimating that they intend not to use severity, for matters of Religion meerly (a course though practiced by Pagans, befitting no men, much lesse Christians) but rather by clemency to induce men to embrace, or follow such Orders, or Ordinances touching Religion, as they shall institute. Moreover, I cannot but greatly blame such as would save men’s Consciences wrackt and enforced in disputable matters, or Tenets of Religion; such as blame Domineering in others, and yet would exercise it themselvs not considering what the Apostle Pet. hath written, I. Pet. 5.3 μηδ’ ὡς κατακυριεύοντες τῶν κλήρων ἀλλὰ τύποι γινόμενοι τοῦ ποιμνίου that Rulers should not be as over-domineering Lords or Christ’s Flock, but as Types, or examples to the flock; nor do such consideratly weigh the Apostles’ words, Gal. 6.1 Brethren, if a man be overtaken in a fault, ye which are spirituall, restore such a one in the spirit of meeknesse, considering thy selfe, least thou also be tempted. He bids them not menace, much lesse persecute for errour, nay the Apostle directly forbids it, Gal. 5.15. But if ye bite, and devour one another take heed ye be not consumed one of another, as if he had said, if ye break the Bond of Christian Charity, take heed least God give you not over to your malicious intentions and practices, by which ye may become Instruments one to destroy another. The holy Apostle likewise Rom. 14.10. forbiddeth men directly not so much as to judge a Brother for things indifferent, or for things which Christian Liberty in Christ giveth leave unto; for saith he, We shall all stand before the Judgement Seat of Christ: but it may be some will say, these, and such like Councels, or Precepts of the Apostle were spoken, or delivered by him concerning meeknesse, to be used in admonishing our Brethren, in errours meerly of Practice not of Doctrine, or in things not cleerly expressed in Scripture, not in things evident and plain in Scripture. To such I answer; what are the great matters in debate and controversie, or rather small matters in great strife, and contention now adayes agitated, but either matters meerly Practicall or exteriour Formes of Worship and Ceremonies, whether tollerable, or intollerable; or else matters obscure, or but by probable Arguments deducible out of Scripture, as Lay-Elders (a Businesse now of dayes, of no small consequence) whether they be not sufficiently warranted by this Text I Tim. 5.17. Let the Elders that rule well, be counted worthy of double honour, especially they who labour in the Word and Doctrine; the Greek hath it, οἱ κοπιῶντες ἐν λόγῳ καὶ διδασκαλίᾳ “labouring in Word and Doctrine,” and from hence it must be deduced forsooth, that there were some Elders that did not labour in the Word and Doctrine, and consequently that such were Laymen. Truly others that are as sound in their judgments (it may be) as those that make this Deduction, will say that the meaning of that Text is this viz. Presbyters (or Elders) that rule well be accompted worthy of double honour in respect of the younger or inferiour; but chiefly such as beside their care, and ordinary performance of their charge labour extraordinarily in Preaching, and exhorting or edifying; even as one might say, let Civill Magistrates that govern well be counted worthy of double honour, in respect of other ordinary, and inferiour Persons; but chiefly such as beside their care, and ordinary performance of their Offices, according to their Oathes, and Duties, labour extraordinarily for the Publique good, by advising, and consulting. I doe not finde that it could be deduced from this last inference, that Clergiemen were, or ought to be Civill Magistrates; nor can I finde that it can well be deduced from the Apostle’s words, that Laymen ought to be Presbyters, or Church-Elders: and yet a great deale of stirre is kept about this businesse, and such like; And some would faine have their but probable Deductions, if so much, to be Orthodoxal Expositions, and so to be held de jure Divino, that’s no presumption. But by the favor of such, I would fain know whether they are infallible, or no; if no, why would they then impose their Expositions de Jure Divino; if they are infallible, I would gladly know how they now come by such an extraordinary gift of Infallibility, and that the World (by their own acknowledgment) hath wanted it for so many Ages, as they say, in all Ages since the Apostles’ time; as I have said, that in Civill Affaires there should not be Quid nimis; so I say in Church-Affaires and wish that men (for alas what are we all but men) would not take upon them Quid nimis, especially in matters either indifferent, or else obscure, and difficult or such as may admit of severall interpretations, and Constructions. I will instance for Example sake one Text of Scripture; viz. ἐν ἀρχῇ ἦν ὁ λόγος &c. In the beginning was the word, &c. All Divinity tells us that Eternity is Identicum nunc, the selfe-same now, and that it hath neither Prius or Postivius, beginning, or ending; what beginning then can the Eternall Word (or Sonne of God) have? No beginning in time, because Eternall, nor in Nature because Increate. What beginning then? Or what may the word Beginning in that place signifie? Some will have the meaning of that Text to be this; In the beginning when the World was created, the word (verbum mentis) of the Father’s understanding was, and so if that were in the Beginning, that was before all Beginning; but this is no good consequence, sayes an Arrian, for the word might bee before the World, and yet be a patre tanquam effectus a causa, be as an effect caused by God the Father, and so have some beginning (as every effect hath) though before the World and to hold this is Heresie, for that the Father is not causa filii, but only Principium filii, not the cause, but naturall beginning of the Sonne. Others will have the meaning to be thus; in that beginning, or instant (which was, and is ever, or Eternall) wherein the Father knew formally his Essence, and Attributes, he spake, or begot the word of his mind, or understanding, being a Terme of his infinite Knowledge, not produced by necessity, or will, but emanating, or flowing as it were by naturall faecundity. Others will have the meaning to be thus; in that beginning or instant aforesaid, wherein the Father knew not only formally his Essence, and attributes, but also all creatures possible and existent he spake or begot the word of his mind or understanding; for say they, the word which is the Terme of the Father’s infinite Knowledg, is a perfectissima, & plenissima cognitione ejus, from his most perfect, and fullest knowledge; and from hence arise divers Arguments pro & contra, not only between the Thomists, Scotists, and other School-men, but also amongst other sorts, or Sects of Christians; but must men for these or the like disputable differences cut one another’s throats, or persecute one another? God forbid, there is not the least warrant in the New Testament for it. In the time of our blessed Saviour’s passing his humanity on the Earth, some there were casting out Devils in his Name, whom his Disciples forbad because they followed not Christ as they did; but our Saviour rebuked them, and bade them suffer them, and let them alone, saying he, or they that are not against us, are with us, adding moreover that it was not likely that any one should doe a miracle in his Name and speak ill of him. Our Saviour said not, that such as workt miracles in his Name should confesse, and speake all that ought to be confessed, and spoken of, or to his honour; but that such as spake not ill of him should (if they confessed his Name) be permitted, or suffered in this World. And shall not we then suffer one another in matters of Religion? Shall we ambitiously compasse our Neighbour’s goods, or meanes, under pretence of Religion, thereby scandalizing Christianity. No! Let all self-ends be abolished, and Peace and Union be embraced that we of this Nation may become an Elisium of comfort of Christian Charity, and mutuall Amity, one to another, and a Precedent of them all to other Nations.
[1. ]“Ship-scot” refers to ship levy or so-called ship money.
[2. ]“Treshault court” is a very high court.
[3. ]The king of England neither by himself nor by his ministers imposes tax subsidies or any other duties or changes their laws, or establishes novelties without the concession or the assent of his entire kingdom expressed in his Parliament.
[4. ]Proper in the fourth way.
[5. ]King of the jackasses.
[6. ]Parker probably has in mind not only the so-called Bishops’ Wars with Scotland but insurrections such as the revolt of the Netherlands and the devastating Thirty Years War in Europe. Moreover, during 1640 the Spanish empire was shaken by revolt in Catalonia and Portugal.
[7. ]Tenure in Capite refers to land held immediately of the king.
[8. ]Purveyance refers to provision to be furnished to the Crown. In 1604 the Commons claimed this prerogative had been abused.
[9. ]Time does not run against the King.
[10. ]Proper in the fourth way.
[11. ]To risk himself and his belongings.
[12. ]By their own expenses; at their own expense.
[13. ]It is given us to be understood.
[14. ]One is not to have recourse to the extraordinary things in those matters in which it can be done by the ordinary things.
[15. ]There is nothing unfair in the law, so neither in Parliament.
[16. ]See John Cowell, The Interpreter: Or Book Containing the Signification of Words . . . (Cambridge, 1607), a provocative dictionary containing definitions that seemed to enhance royal power. Two further editions appeared in 1637. See STC 5900, 5901, 5902.
[17. ]Thomas Harrison upbraided Judge Hutton for his decision in the case of ship-money.
[18. ]Dismantler of the kingdom.
[19. ]At the expense of the people.
[20. ]Sacred hunger for gold.
[22. ]“Coat and Conduct money” was a special military tax to provide men pressed into the royal army with any necessary clothing and for appointed conductors who were paid for delivering them to their rendezvous.
[1. ]The Earl of Strafford governed Ireland as lord deputy, a post to which he was appointed in 1632.
[2. ]Charles had agreed to the Petition of Right in 1628 in order to convince Parliament to grant him a subsidy. He got his subsidy although he found the amount disappointing.
[3. ]The ceasing of gain or profit.
[4. ]The rising loss.
[5. ]Hugh O’Neill, Earl of Tyrone, led an Irish rebellion against the English in 1595. He was vanquished, but after three years of negotiations, hostilities broke out again in 1598. Tyrone suffered a serious defeat in 1601 and finally surrendered on 30 March 1603.
[6. ]The part or portion of the father.
[7. ]One is not to be loyal or faithful when it comes to heretics.
[8. ]The “Resolution upon the Saving” refers to the proposal of the Lords, rejected by the Commons, to add to the Petition of Right the phrase “to leave entire that sovereign Power, wherewith your Majesty is trusted for the protection, safety, and happiness of your people.”
[9. ]The reference is to the “gunpowder plot” of 1605 in which a group of Catholic conspirators attempted to blow up the king and members of Parliament in order to overthrow the Protestant government.
[1. ]Unable to obtain Charles’s agreement to transfer the command of the kingdom’s militia to Parliament, on 5 March 1642, that body passed the Militia Ordinance assuming such authority without the king’s consent.
[2. ]It is unclear which members were put out of “any Place and Office,” but the Grand Remonstrance, clause 38, charges that “judges have been put out of their places for refusing to go against their oaths and consciences.”
[3. ]During good behavior.
[4. ]Charles carefully avoided referring to his growing military force as soldiers, and preferred to call them guards.
[5. ]Charles’s sister Elizabeth had married the Protestant, Frederick V, the Elector Palatine. Frederick’s election as King of Bohemia upon the deposition of the Catholic Ferdinand immersed them both in the bitter Thirty Years’ War. Frederick became known as the winter king from the brevity of his reign. Elizabeth’s sons, princes Rupert and Maurice, were both to fight on Charles’s behalf during the civil war.
[6. ]Lord Kimbolton here referred to was Edward Montagu, Earl of Manchester, one of those accused of treason by the king on 3 January 1642. The others were John Pym, John Hampden, William Strode, Denzil Holles, and Sir Arthur Haslerigg.
[7. ]On 23 April 1642, the new parliamentary governor of Hull, Sir John Hotham, arrived just in time to refuse the king entry to the town that housed the major arsenal in the northern part of the kingdom.
[8. ]“His Majesties Message to both Houses of Parliament, January 20” (London, 1642), Wing C2450.
[9. ]For information on the incident involving Sir John Hotham and Hull, see note 7, above.
[10. ]State messengers with power to execute warrants.
[11. ]Despite his original objections to it, on 16 February 1641 Charles I had consented to the Triennial Bill mandating the summoning of a parliament at least every three years.
[12. ]A meeting in Southwark in December 1641 for the purpose of drawing up a petition against the bishops became violent when a constable was attacked and beaten. Complaint was made and the sheriff ordered to impanel a jury to examine witnesses. The House of Commons intervened and ordered the undersheriff of Surrey to stop the proceedings.
[13. ]The King is referring here to Hull.
[14. ]Jack Cade led the Kentish rebellion of 1450, and Wat Tyler led the Great Peasant Rebellion of 1381. Both men were commoners.
[15. ]We do not wish the Laws of England to be changed.
[16. ]“His Majesties Message to both Houses of Parliament: February 14, 1641” (London, 14 February 1641/2), Wing C2451.
[1. ]Ferne is referring to the Militia Ordinance passed by the two houses of Parliament on 5 March 1642.
[2. ]This statement is a reference to the theory that a conquered people have only those rights the conqueror chooses to bestow upon them. The English, according to Ferne’s reckoning, having been conquered no less than three times, would have no claim to inherent ancient rights.
[4. ]For information on Cade and Tyler, see note 14, above.
[5. ]The “late Protestation” is probably that drawn up by the Commons in May 1641, which read: “I, A. B. in the presence of Almighty God, promise, vow, and protest to maintain and defend, as far as lawfully I may, with my life, power, and estate, the true Reformed Protestant Religion, expressed in the doctrine of the Church of England, against all Popery and Popish innovations within this realm contrary to the same doctrine, and according to the duty of my allegiance, his Majesty’s Royal person, honour, and estate, as also the power and privileges of Parliament, the lawful rights and liberties of the subjects. . . .” The Protestation went on to include a vow to oppose and bring to punishment all who plot or do anything contrary to it.
[6. ]This is a reference to the months of wrangling between Charles and Parliament over control of the militia of the kingdom, with the two Houses eventually passing the Militia Ordinance without royal approval.
[1. ]In the act as performed (i.e., without explicit awareness).
[2. ]In the act as made reflectively explicit (i.e., done while one is adverting to it expressly).
[3. ]To be done and consented to.
[4. ]By a shameful vow change the decree, Do not do what you have carelessly vowed to do.
[5. ]The promise is not to be performed, but presumption is to be regretted.
[6. ]Whatever is not disproven is presumed.
[7. ]An established and well-known law.
[8. ]In the presence of one who is not a judge.
[9. ]We command that the arduousness and the imminent dangers pertaining to the business stated be taken into consideration.
[10. ]To give the law.
[11. ]To utter the law.
[12. ]“Dammees” was a nickname given to royalist soldiers because of their reputation for blasphemy.
[13. ]All consenting orders of the kingdom (probably referring to the orders or estates of Parliament, the king, lords, and commons).
[14. ]This paragraph was added to the second edition, probably in order to respond to the “late sawcie Scurrilous pasquill” mentioned in the next sentence. This tract was “A complaint to the House of Commons, and resolution taken up,” Oxford [London], 1642, Wing C5620. There were two subsequent editions, both printed in Oxford.
[15. ]The so-called “House of Loretto” in Italy was believed to be the original house at Nazareth in which the Virgin Mary was born and brought up and had received the annunciation. Legend had it that this stone house had been brought to successive sites and eventually to Loretto by angels.
[16. ]A lot of warning does no harm.
[1. ]In or when defending oneself, or self-defense.
[2. ]Wing STC attributes authorship of the reply to the answer of the London petition to William Chillingsworth, a royalist theologian and godson of William Laud. The reply appears in “The Petition of the most substantiall Inhabitants of the citie of London, to the Lords and Commons for peace. Together with the answer to the same. And the reply of the Petitioners” (Oxford, [5 December] 1642), Wing C3880.
[3. ]We can only do what we can do legally.
[1. ]William Ball, “Tractatus de Jure Regnandi & Regni: or, the Sphere of Government,” (25 October) 1645. Wing B597.
[2. ]John Cook, “The Vindication of the Professors and Profession of the Law. By way of Answer to a printed Sheet intituled Advertisements of the New Election of Members for the House of Commons,” [6 February] 1646. Thomason Tracts E320 (17).
[3. ]This expression means a thing accursed.
[4. ]See reference on p. 287.
[5. ]See Ball, “Tractatus,” 13.
[6. ]“A Declaration of the Commons of their true Intentions concerning the Government of the Kingdom, the Government of the Church, the present Peace, etc.” (London), April 17, 1646. Wing E2562. Note by George Thomason states that four thousand copies were ordered to be printed, distributed throughout the “county,” and set up in every parish church.