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Charles Herle, A fuller Answer to a Treatise - 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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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.
[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.