The Online Library of Liberty

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• Preface
• Acknowledgments
• Introduction
• The Vocabulary of Sovereignty
• The Sovereignty of the King
• The Sovereignty of Law
• The Sovereignty of Parliament
• War Footing
• Chronology
• The Struggle For Sovereignty, Volume I
• Under God and the Law
• Edward Coke, the Second Part of the Reports
• Sir Edward Coke, the Twelfth Part of the Reports
• Sovereignty In the King Alone
• William Goodwin, a Sermon
• Roger Maynwaring, Religion and Alegiance
• Peter Heylyn, a Briefe and Moderate Answer
• Battle Joined 1640-1648
• Henry Parker, the Case of Shipmoney
• John Pym, the Speech Or Declaration
• Charles I, Xix Propositions Made By Parliament
• Henry Ferne, the Resolving of Conscience
• Charles Herle, a Fuller Answer to a Treatise
• Anonymous, Touching the Fundamentall Lawes
• William Ball, Constitutio Liberi Populi
• Uncharted Waters
• John Goodwin, Right and Might Well Mett
• Anonymous, the People’s Right Briefly Asserted
• Parliament, a Declaration of the Parliament of England
• Law and Conscience During the Confusions and Revolutions of Government
• Francis Rous, the Lawfulnes of Obeying the Present Government
• Anonymous, the Grand Case of Conscience Stated
• George Lawson, Conscience Puzzle’d
• Isaac Penington, the Right, Liberty and Safety of the People
• The “after Game”
• Roger L’estrange, a Plea For Limited Monarchy
• John Milton, the Readie and Easie Way to Establish a Free Commonwealth

Anonymous, Touching the Fundamentall Lawes

Anonymous

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.

LONDON

Printed for Thomas Underhill, and are to be sold at the signe of the Bible in Woodstreet.

M.DC.XLIII.

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.

Se Defendendo.1

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.

finis.

[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.