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Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 1 [1999]

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Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1. http://oll.libertyfund.org/titles/810

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About this Title:

For much of Europe the seventeenth century was, as it has been termed, an “Age of Absolutism” in which single rulers held tremendous power. Yet the English in the same century succeeded in limiting the power of their monarchs. The English Civil War in midcentury and the Glorious Revolution of 1688 were the culmination of a protracted struggle between kings eager to consolidate and even extend their power and subjects who were eager to identify and defend individual liberties. The source and nature of sovereignty was of course the central issue. Did sovereignty reside solely with the Crown – as claimed theorists of “the divine right” – Or did sovereignty reside in a combination of Crown and Parliament – or perhaps in only the House of Commons – or perhaps, again, in the common law, or even in “the people”. To advance one or another of these views, scholars, statesmen, lawyers, clergy, and unheralded citizens took to their books – and then to their pens. History, law, and scripture were revisited in a quest to discover the proper relationship between ruler and ruled, between government and the governed. Pamphlets abounded as never before. An entire literature of political discourse resulted from this extraordinary outpouring – and vigorous exchange – of views. The results are of a more than merely antiquarian interest. The political tracts of the English peoples in the seventeenth century established enduring principles of governance and of liberty that benefited not only themselves but the founders of the American republic. These writings, by the renowned (Coke, Sidney, Shaftesbury) and the unremembered (“Anonymous”) therefore constitute an enduring contribution to the historical record of the rise of ordered liberty. Volume I of The Struggle for Sovereignty consists of pamphlets written from the reign of James I to the Restoration (1620-1660). Each volume includes an introduction and chronology.

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Table of Contents:

Edition: current; Page: [i]
The Struggle for Sovereignty
Edition: current; Page: [ii] Edition: current; Page: [iii]
THE STRUGGLE FOR Sovereignty
Seventeenth-Century English Political Tracts
VOLUME 1
Edited and with an Introduction by Joyce Lee Malcolm
Liberty Fund
Indianapolis
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

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The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.”

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© 1999 by Liberty Fund, Inc.

All rights reserved

Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

The struggle for sovereignty: seventeenth-century English political tracts/edited and with an introduction by Joyce Lee Malcolm.

p. cm.

Includes bibliographical references and index.

isbn 0-86597-187-0 (2-vol. set: hardcover).—isbn 0-86597-189-7 (2-vol. set: pbk.).—isbn 0-86597-152-8 (vol. 1: hardcover).—isbn 0-86597-153-6 (vol. 1: pbk.).—isbn 0-86597-186-2 (vol. 2: hardcover).—isbn 0-86597-188-9 (vol. 2: pbk.).

1. Great Britain—Politics and government—1603-1714. 2. Political science—Great Britain—History—17th century. 3. Civil rights—Great Britain—History—17th century. 1. Malcolm, Joyce Lee.

jn191.s77 1999

323.5′0941′09032—dc21 97-28248

99 00 01 02 03 c 5 4 3 2 1

99 00 01 02 03 p 5 4 3 2 1

Liberty Fund, Inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [v]

to Geoffrey Elton and John Kenyon

Edition: current; Page: [vi] Edition: current; Page: [vii]

Contents

  • volume 1
  • Under God and the Law
    • Sir Edward Coke, Preface, The Second Part of the Reports, London, 1602 3
    • Sir Edward Coke, Prohibitions del Roy, 5 Jac. 1 (1607), from the Twelth Part of the Reports, London, 1658 11
  • Sovereignty in the King Alone
    • William Goodwin, A Sermon Preached Before the Kings Most Excellent Maiestie at Woodstocke, Aug. 28, 1614, Oxford, 1614 21
    • Roger Maynwaring, Religion and Alegiance: In Two Sermons Preached Before the Kings Maiestie: The One on the Fourth of Iuly, Anno 1627. At Oatlands, London, 1627 53
    • Peter Heylyn, A Briefe and Moderate Answer, to the Seditious and Scandalous Challenges of Henry Burton, Chapter 2, London, 1637 73
    Edition: current; Page: [viii]
  • Battle Joined 1640-1648
    • [Henry Parker], The Case of Shipmony Briefly Discoursed, London, 1640 93
    • John Pym, The Speech or Declaration of John Pym, Esquire: After the Recapitulation or Summing Up of the Charge of High-Treason, Against Thomas, Earle of Strafford, London, 1641 127
    • Charles I, XIX. Propositions Made by Both Houses of Parliament, to the Kings Most Excellent Majestie: With His Majesties Answer Thereunto, York, 1642 145
    • Henry Ferne, The Resolving of Conscience, upon This Question. Whether . . . Subjects May Take Arms and Resist? Cambridge, 1642 179
    • [Charles Herle], A Fuller Answer to a Treatise Written by Doctor Ferne, London, 1642 223
    • Anonymous, Touching the Fundamentall Lawes, or Politique Constitution of This Kingdome, the Kings Negative Voice, and the Power of Parliaments, London, 1643 261
    • William Ball, Constitutio Liberi Populi. Or, the Rule of a Free-Born People, London, 1646 281
  • Uncharted Waters
    • John Goodwin, Right and Might Well Mett, London, 1649 307
    • Anonymous, The Peoples Right Briefly Asserted, London, 1649 359
    • A Declaration of the Parliament of England, Expressing the Grounds of Their Late Proceedings, and of Setling the Present Government in the Way of a Free State, London, 1649 369
    Edition: current; Page: [ix]
  • Law and Conscience During the Confusions and Revolutions of Government
    • [Francis Rous], The Lawfulnes of Obeying the Present Government, London, 1649 393
    • Anonymous, The Grand Case of Conscience Stated, About Submission to the New and Present Power, London, 1649 405
    • [George Lawson], Conscience Puzzel’d About Subscribing the New Engagement, London, 1650 435
    • Isaac Penington Jr., The Right, Liberty and Safety of the People Briefly Asserted, London, 1651 445
  • The “After Game”
    • [Sir Roger L’Estrange], A Plea for Limited Monarchy, London, 1660 493
    • J. M. [John Milton], The Readie & Easie Way to Establish a Free Commonwealth, London, 1660 505
  • volume 2
    • Introduction ix
    • Chronology xxxiii
    • Of Parliament 529
    • Parliament and the Succession 671
    • The King’s Inalienable Prerogative 771
    • Revolution and Allegiance 845
    • In the Wake of Revolution 989
    • Index 1065
    Edition: current; Page: [x] Edition: current; Page: [xi]

Preface

May you live in interesting times, an old curse goes. The seventeenth century in England was nothing if not an interesting time. But unlike most turbulent centuries, it was no dark age. Quite the contrary, it was an era of great intellectual achievement. This was especially true in the realm of political thought, for at the core of England’s traumatic upheavals lay a fundamental intellectual controversy over the source and nature of political sovereignty. It was an intricate subject of the utmost importance that touched virtually every aspect of the relationship between the individual and the state. The source of sovereignty was no simple matter in a kingdom that boasted it possessed an “absolute” monarch presiding over a limited monarchy—a mixed government nicely balanced between power and liberty. Contradictory political and religious assumptions undergirded the English constitution. Most of the time Englishmen juggled these underlying inconsistent beliefs with remarkable equanimity. Indeed, their political system was capable of great flexibility. But flexibility and accommodation vanished when exalted pretensions for royal power clashed with the jealously guarded rights and privileges of the Parliament and with claims for the supremacy of the law. Upon the outcome of this confrontation over sovereignty would hang the form of English government and the rights of its people.

Happily the debate over sovereignty took place in print as scholars, statesmen, lawyers, clergymen, government propagandists, and other concerned individuals snatched their pens, racked their brains, and wrote. The preferred form was the essay published as a pamphlet or Edition: current; Page: [xii] tract—a format that ideally suited the urgency of the controversy. Tracts could be quickly composed and speedily printed. Thousands appeared. Often a provocative tract would inspire several published replies, followed by the original author’s response. Issues and arguments evolved in counterpoint with political events, sometimes provoking them, sometimes responding, sometimes justifying, sometimes—as in the case of Charles I’s famous “Answer to the Nineteen Propositions”—becoming a part of the shifting situation. The result was a literature unprecedented in volume and of immense influence upon English and American constitutional thought and practice.

Many of the most valuable and influential of these tracts have long been out of print. The aim of The Struggle for Sovereignty is to publish a selection of the best and most important examples of this rich political literature. The hope is that bringing these essays to a larger audience will broaden general knowledge of seventeenth-century political thought. Certainly these tracts illustrate the debt subsequent generations owe to the political writers of that era. They also provide a more reliable context for an assessment of the thought of Locke, Milton, Hobbes, and Filmer. The tracts in these volumes span the entire century and set out the key elements of the constitutional debate as it unfolded. Volume 1 begins just prior to the reign of James I and concludes at the eve of the restoration of monarchy in 1660. Volume 2 resumes with the restoration of the monarchy and concludes with issues provoked by the Glorious Revolution. Within each volume tracts have been arranged in chronological order and divided into broad, thematic groups.

Compiling this collection has been a daunting task, and a word is in order about the criteria that governed the choice of tracts. Rather than presenting a sample of eloquent political writing, I focused on the issues under discussion. Therefore my first priority has been to select those tracts that not only best present the arguments on a subject but also do so cogently and concisely. For example, while Henry Edition: current; Page: [xiii] Parker wrote other excellent and influential essays, his “Case of Shipmony” was selected because it best illustrates the grave constitutional consequences that many of his contemporaries saw in the imposition of what they regarded as an illegal tax. For the same reason I included tracts that present a range of viewpoints. Here I am only too aware of a major omission—the works of the Levellers. This is not because the Levellers’ views were unimportant but because limitations of space persuaded me to exclude pieces already available in print. Since Leveller works are especially well preserved, it seemed preferable to rescue important works that are not. Hence I have reprinted key tracts not readily available or at least not available in complete form.

Choice of candidates for inclusion was more seriously limited by the early decision to reprint works in their entirety rather than excerpts from them. The obvious advantages to this method are that readers are not dependent on anyone’s prior judgment about which portions of an essay are significant and therefore can see the work whole. This decision, however, meant that longer tracts had to be excluded. Those familiar with the political essays of the seventeenth century know that many tracts were long—some attaining book length. Thus these two volumes include fewer tracts than could otherwise have been the case, and many excellent works could not be considered. Tracts that are reprinted, however, are entire, with two minor exceptions. In volume 1 only the second chapter of Heylyn’s “A Briefe and Moderate Answer” was reprinted. But this chapter was responding to a particular sermon of Henry Burton’s and is thus complete in itself. In volume 2 only the first five chapters of “The Arraignment of Co-Ordinate-Power” have been printed. These five chapters are quite independent of the last chapters, which are both narrowly technical and lengthy. It seemed better to reprint only the first chapters of this useful essay than omit the whole.

Other points. Where possible I have included one tract replying to another, thus allowing readers to sample the give-and-take of a debate Edition: current; Page: [xiv] as it occurred. For example, the exchange between Henry Ferne and Charles Herle over whether, in Ferne’s words, “Subjects may take Arms and resist? and whether that case be now?” is a famous debate between two of the best minds on the royalist and parliamentarian sides, respectively.

Operating under these constraints, I have endeavored to present the work of as many authors as possible. For this reason I rarely include more than one tract by a writer. The glaring exception occurs in volume 2 where readers will find three tracts by Anthony Ashley Cooper, the Earl of Shaftesbury. Shaftesbury has been allotted more space than others because few tracts dealing with pressing constitutional issues were published in the 1670s and because his essays are excellent. It is no accident that both exceptions to my guidelines occur in volume 2. Strict censorship was imposed during the Restoration and this fact, together with the more muted debate generally, meant that there were periods when few tracts unfavorable to the authorities were published. This is not the place to provide an essay on censorship during the seventeenth century. Suffice it to say that during this time spells of prolific publishing and little effective control of the press alternated with periods when strict censorship drove critics of the government either to silence or to anonymous publication and subterfuge. Several of the tracts in The Struggle for Sovereignty are anonymous. Where the authorship of a tract is in doubt, I have followed the attribution of the Wing Short Title Catalogue.

The contemporary market for tracts was so brisk that many essays went into several editions. Where this is the case I have preferred the first edition when it was available. Subsequent editions often contain responses to critics of the first edition. They are, therefore, longer—a disadvantage from my point of view. For the same reason the arguments in later editions tend to be more dilute with new passages inserted into the original text. Political tracts appeared in a variety of Edition: current; Page: [xv] formats. I have included a mix of the most popular styles of the genre—formal dialogues, sermons, published speeches, familiar letters.

It has been a great luxury to be able to publish two volumes. Even so, after severely winnowing the hundreds of tracts I read to a manageable number, my initial selection would have created two books, each of which was fully double the present length. In short, the choice has not been an easy one. I am acutely mindful of the many excellent works that could not be included. Nevertheless, I hope the reader will find that closer acquaintance with the thought and wit of these particular authors will be time well spent and will find their tracts to be of interest, insight, and value. For myself, I have found them often brilliant, invariably thought-provoking, sometimes exasperating, always fresh, and frequently delightful.

EDITORIAL APPROACH

Fashions in editorial approach, as in all else, change. Earlier in this century editors thought nothing of silently altering early works, changing even the language itself. The trend is now moving in the direction of producing something very close to a facsimile of an original text. I have taken a middle road. Because the goal is to make these works accessible, even to those unfamiliar with seventeenth-century English literature, some sensitive modernizing has been done. Occurrences of blackletter type have not been reproduced and spellings that might confuse have been changed (a decision I am confident the writers of the seventeenth century would approve). In addition, the spelling of proper names within individual tracts has been made consistent, unusual punctuation has been brought up-to-date, and with a few exceptions, contractions not now in use have been spelled out. Because tracts often were published in haste, they frequently contained misprints. Such typographical mistakes have Edition: current; Page: [xvi] been corrected. Seventeenth-century printers capitalized some words in titles because the words began a new line or for other reasons of design. The titles of the tracts contained in these volumes retain their original spellings and punctuation; except on the title pages, capitalization in the tract titles follows modern convention.

In several instances, the Greek script was illegible in the original. I have indicated the missing text in those cases with three ellipsis points enclosed by brackets. A few tracts contained prefaces that, for reasons of space, I have not reprinted, although I have noted in the relevant headnotes any dedications these included. Marginalia have also been omitted. Marginal notes usually were confined to the notation of references, and these tend to be listed in barely legible, severely abbreviated, form. The practice of using marginalia was especially common and the list of references especially lengthy in published sermons. I hope these omissions will not detract from readers’ appreciation of the text, and I urge those readers with particular interest in the prefaces or the marginalia to consult the original pamphlets.

Apart from these exceptions, the text has been painstakingly reproduced. The language has been faithfully preserved, as have the capitalization and italics of the originals. All departures from twentieth-century norms stand as a continual reminder that one is dealing with another era.

The introductions and editorial footnotes are designed to aid readers unfamiliar with the political thought of seventeenth-century England. A grasp of the historical and philosophical background, in all its bewildering complexity, with all its contradictions, subtleties, and shifts, is critical to a sensible reading of these works. True, the conceptions with which the authors wrestled are profound, the political dilemmas eternal, but they were men of their century facing urgent contemporary problems. To miss that is to mistake their meaning.

Edition: current; Page: [xvii]

Acknowledgments

I should like to thank all those who have generously assisted in and encouraged this ambitious undertaking. The Huntington Library awarded me a Fletcher Jones Foundation fellowship, which permitted the use of their splendid collection of seventeenth-century pamphlets, and the Earhart Foundation followed with a generous fellowship research grant. Bentley College awarded me a Bentley Institute Fellowship, which provided both funds and time to carry out the work.

Many scholars and friends read and commented on the selection of tracts and the introductory essays. In particular I would like to thank Quentin Skinner for his continuing encouragement throughout this project; John Morrill, David Wootton, and Donald Lutz for reviewing the lists of tracts and making valuable comments on the introductions; and Mark Goldie for his thoughts on the Restoration tracts. Many thanks as well to Derek Hirst for recommending Goodwin’s “Right and Might Well Mett”; to Tim Harris for drawing my attention to “Captain Thorogood His Opinion of the Point of Succession”; to John Morrill for urging the inclusion of Algernon Sidney’s splendid scaffold speech; and to Quentin Skinner for recommending the work of William Sherlock. I should also like to express my gratitude to Sir Geoffrey Elton and John Kenyon, good friends who are sorely missed, and to whom this collection is dedicated.

A special acknowledgment must go to Kim Cretors who valiantly undertook the formidable challenge of deciphering all these idiosyncratic Edition: current; Page: [xviii] texts and putting them on computer. My research assistants were a splendid help. I should like especially to thank Jeff Strong and Jacqueline Allard for their ingenuity in tracking down elusive references.

My family, as always, has been patient beyond belief or fairness. Living with a historian is never easy, especially a talkative one preoccupied with constitutional issues. The flaws that remain in the work, and I fear they are many, are my own.

Edition: current; Page: [xix]

Introduction

Whose rights are to predominate in the State, the rights of the ruler or those of the people, the rights of the governed or those of government? It is this vexed question which produces tension in the structure of constitutional monarchy—a tension which may only make itself felt on exceptional occasions, but then shakes the whole edifice to the point of collapse.

—Fritz Kern, Kingship and Law in the Middle Ages

Seventeenth-century Englishmen were thoroughly confused about sovereignty, knew they were, but found the ambiguity tolerable. “To demand which estate may challenge this power of final determination of fundamental controversies arising betwixt them,” Philip Hunton wrote in 1643, “is to demand which of them shall be absolute . . . if the nondecision be tolerable, it must remain undecided.”1 Unfortunately in 1643 war between the king and Parliament had made nondecision increasingly impracticable. In that case Hunton advised “every person . . . [to] . . . aid that part which in his best reason and judgement stands for the publike good.” It was not a choice anyone had wished to make. At the beginning of the seventeenth century Englishmen prided themselves on their government’s nice balance between liberty and authority. It was this balance they hoped they had restored as the century closed. But in the years between, the scales tipped one way and then another as dissension, civil war, revolution, restoration, dissension, and revolution followed one another in giddy and unprecedented procession goaded by, and in turn setting in motion, probing of virtually every aspect of the relationship between Edition: current; Page: [xx] the individual and the state.2 Central to these events and this relationship were rival claims for sovereignty. Claims were advanced for the sovereignty of nearly every component of English government—for the sovereignty of the king alone, for the king in Parliament, for the two houses of Parliament and the House of Commons alone, for the sovereignty of the law and that of the people.

If the scope of the controversy was unprecedented, so was the opportunity for debate. For the first time in their history Englishmen had the opportunity for political argument on a grand scale, and for the first time they were in a position to choose between political visions. Happily the shifting, intense, and at times profound debate on sovereignty was published, largely in the form of hastily written tracts printed in unprecedented quantities.3 Thanks to the “swarming number of pamphleteers” stricken with what a correspondent of Lord Conway diagnosed as “a powerful disease, this writing,” we can read for ourselves the political theories and analyses of scores of the best minds of that talented, turbulent, and pivotal age.4 The literature they left has been of the greatest consequence for succeeding generations across the entire political spectrum.

There are a variety of compelling justifications for a collection of these essays. The most general was touched upon by the royalist Bishop Brian Duppa in 1656 when he praised Photius, whose anthology Edition: current; Page: [xxi] Bibliotheca included the names and works of many classical authors “which else had utterly perished” and heartily wished “there wer found som to imitate him; for besides preserving the memory, both of greater and more especially lesser tracts and treatises (which ar commonly lost like pinns and needles, and never recovered again), there might be great use made of it, both in the exercising of every man’s own judgement, and giving an edge to the judgement of others.”5 It is hoped this collection of seventeenth-century tracts might be of similar “great use.” Issues of sovereignty are chronic, and the struggles of seventeenth-century men to achieve liberty with order speak to us still. Moreover, while much study has been lavished upon those few seventeenth-century theorists later centuries have deemed original and important, the works of other excellent thinkers, such as Henry Ferne, Francis Rous, and Gilbert Burnet, now nearly as lost as Duppa’s “pinns and needles,” were frequently more typical of their age and more influential during it, and furnish an intellectual context in which a Hobbes and a Locke can be better understood and more justly evaluated.

Beyond such a general purpose is the historian’s purpose. As Bernard Bailyn wrote of the pamphlets of the American Revolution, these tracts “reveal not merely positions taken but the reasons why positions were taken; they reveal motive and understanding: the assumptions, beliefs, and ideas—the articulated world view—that lay behind the manifest events of the time.”6

Lastly, many seventeenth-century historians now question the assumption that clashing constitutional theories played a prominent role in the civil war. They rightly stress the political concepts most Englishmen shared, but some have gone on to marginalize and belittle Edition: current; Page: [xxii] the importance and the quality of the political theories so passionately argued prior to, and during, the civil war era.7 Indeed, one scholar maintained that “from the time religious and ecclesiastical splits seriously damaged parliamentary unity to the time when that unity was, after a fashion, restored at dreadful cost, constitutional thought was suspended.”8 The political treatises of the Restoration period have suffered less belittlement only because until recently they have not been the subject of serious consideration.9 In both instances Edition: current; Page: [xxiii] exposure to the published tracts of influential, if lesser known, authors provides an opportunity for a larger audience to evaluate their quality and significance and hopefully arrive at a richer understanding of the century’s political thought and conflicts.

When I first traveled to Great Britain I was cautioned, “Just because you speak the same language, don’t think you understand each other.” That advice is just as sound for the time traveler determined to fathom the tangled intellectual milieu of seventeenth-century Englishmen. In addition to the need to understand a battery of then commonly accepted political notions, it is important to be aware that the vocabulary central to the debate over sovereignty—words such as “sovereign” and “absolute”—had meanings so various and shifting that the protagonists themselves were often confused. This brief introduction can do no more than point out the major landmarks and landmines of that philosophical universe. The fascinating implications and nuances of the discussion will be left to the authors themselves.

Let us begin with those political understandings Englishmen shared, for their inherent contradictions were at the root of the trouble.10 We will then consider the various claims for supremacy. The English king was head of both church and state. His political position was ancient, his role as supreme head of the Church of England less than a century old when James I came to the throne in 1603. This double role had great potential to ensure a secure and powerful monarchy but also generated inconsistent constitutional expectations.

Edition: current; Page: [xxiv]

The glory of the constitution was regarded by many as its balance and reciprocity: balance between the king’s prerogatives and people’s liberties and between the king’s duty to his subjects and their obedience to him. This last was viewed as a kind of contract in which the king was bound to maintain the customs and liberties of his subjects by his coronation oath while his subjects were bound to him by oaths of loyalty and supremacy.11 Thus, while the English government was a hereditary monarchy—then considered the most stable form of polity—it was no simple monarchy since the king’s powers were limited by the laws and customs of the realm and, in the critical areas of legislation and direct taxation, were shared with Parliament. Parliament comprised the monarch and representatives of the three estates of the realm—the lords spiritual and the lords temporal who sat in the House of Lords, and the townsmen and gentry whose representatives Edition: current; Page: [xxv] sat in the House of Commons.12 This gave credibility to the belief of Englishmen that their government was a judicious mixture of monarchy, aristocracy, and democracy possessing the advantages and avoiding the weaknesses of each.13 Although the concepts of the contract theory and mixed government imbedded in these notions, with their implication that the king might be held to account by his people, were prudently silenced in the immediate aftermath of the 1605 Gunpowder Plot, both theories resurfaced in the late 1630s.14

The king’s relationship with Parliament was complex. It shared his legislative and fiscal authority, and the king in Parliament was regarded as English government at its most potent. But Parliament was, in many respects, a creature of the Crown. The king decided when it should be summoned and when dissolved, and no bill could become law without his consent.15 Moreover, he had numerous opportunities to manipulate the membership of the Commons, while in the House of Lords the spiritual lords—the bishops—were royal appointees and the ranks of lay peers could be supplemented at his pleasure.16 Then too enforcement of parliamentary statutes was left to Edition: current; Page: [xxvi] the king and his courts, and the right to dispense with or suspend a law was part of his prerogative.17 Nonetheless, Parliament was the highest court in the realm because it alone was able to legislate and, so it contended, best able to interpret the law. It also served as a council to the king. In it “the whole body of the realm, and every particular member thereof, either in person or by representation (upon their own free elections) . . . [were] by the laws of the realm deemed to be personally present.”18 Englishmen regarded Parliament as necessary to the maintenance of their ancient rights.

These rights and customs were continually evolving, but their gist was believed to be immemorial, not the gift of any monarch, undisturbed even by the Norman conquest.19 The key rights had been laid down in Magna Carta, the Great Charter of 1215, reconfirmed by English monarchs no less than thirty-two times.20 The famed legal scholars, Henry de Bracton and Sir John Fortescue, stressed the legal constraints on English kingship. Bracton defined the English monarch as not subject to any man but under God and the law. Fortescue saw the royal office as “dominium politicum et regale” not “dominium regale,” that is constitutional, rather than absolute, monarchy.21 James I boasted monarchy was the “supremest thing upon earth,” but conceded he was “King by the common law of the Edition: current; Page: [xxvii] land.”22 James added that a king governing a settled kingdom “leaves to be a king, and degenerates into a tyrant, as soon as he leaves off to rule according to his laws.”23

The boundary between the king’s prerogative powers and the people’s customs and liberties was set by common law and statute law and patrolled by the judges. Judges were sworn to do equal right to rich and poor and to ignore even the king’s orders in reaching their decisions. Yet judges were appointed by the Crown and under Charles I served at pleasure, rather than during good behavior.24 This was why John Selden, the famous jurist, found the king’s oath “not security enough for our Property for he swears to Govern according to Law; now the Judges they interpret the Law, and what Judges can be made to do we know.”25 But skeptics aside, the courts were regarded as key to the maintenance of English liberties, and an English monarch employed the courts for blatant political advantage at his peril.

Law was not the only sanction for royal authority. Like all supreme magistrates, the king was believed to hold his power from God and to be ultimately answerable to God. He was described as absolute despite the constraints on his powers, because as head of both church Edition: current; Page: [xxviii] and state he was not accountable to any outside potentate. The meshing of religion and politics in the early modern era had a significant theoretical and constitutional impact. The king’s position in the state church meant any alienation from that church could affect his subjects’ loyalty to him. After the pope excommunicated Henry VIII, English Catholics were freed from their oaths of obedience. They were urged to work toward the conversion or overthrow of the Protestant monarch. On the other side of the Christian spectrum, English Presbyterians and Independents desired a more independent, more radical, English church. The Church of England saw itself as a vital prop of the Crown. Its leading clergy were royal appointees. When the Stuart kings began to embrace absolutist notions, clerics who exalted monarchy and preached absolute obedience to the king were promoted. Dissenters of both the Catholic right and the Calvinist left, on the other hand, found it necessary to seek religious and philosophical justification for their religious opposition and, in extremis, for political resistance as well.26

In ordinary times, the flexibility in the constitution and relative moderation of the church kept government and community in tolerable harmony. But the system had no sure way to prevent a monarch intent upon becoming absolute from doing so, or any remedy for a king who, as James I put it, “leaves to be a king, and degenerates into a tyrant.” It was a dilemma that would haunt the men and women of the 1640s, 1650s, 1660s, and 1680s and force the issue of sovereignty to the fore. Scripture was an uncertain guide. It admonished men to “render unto Caesar the Things that are Caesar’s and unto God the Things that are God’s,” but not what to do when Caesar’s commands Edition: current; Page: [xxix] opposed God’s. Different Protestant denominations had different answers. English Puritans had inherited a Calvinist “ideological armory” that permitted defense against a godless monarch if it were led by magistrates.27 Of course, if the king behaved like a tyrant, it could be argued he was no longer king. His subjects were then released from their oaths of loyalty, and religious teachings on obedience did not apply. Resistance was not rebellion. This position, royalists would repeatedly point out, resembled the Catholic notion that a monarch could be deposed by the pope and his subjects released from their obedience.

The Church of England, as befitted an established church, took a different stance. Given both its own remarkable origins under Henry VIII and associated threats to the Crown, one of its emphatic teachings was the necessity for obedience. It was a teaching with profound constitutional resonance, drummed as it was into the ears of thousands of English men and women in numberless Sunday sermons. Looking back the emphasis on political obedience seems excessive. The homily “against Disobedience and willful Rebellion” is not only the longest homily in the Book of Homilies used as the basis for sermons but more than double the length of any other. This is in addition to a separate homily, the “Exhortation to Obedience.”28 Neither gave more than passing reference to obedience to parents and superiors; both concentrated almost exclusively on obedience to the Edition: current; Page: [xxx] Crown. Without kings, rulers, and judges, the clergy taught, “no man shall ride or go by the highway unrobbed, no man shall sleep in his own house or bed unkilled, no man shall keep his wife, children, and possessions in quietness, all things shall be common.”29 The homily goes on to insist that the power and authority of kings are the ordinances “not of man, but of God.” Christians were not to raise their hands against their rulers or even to think evil of them. While the Elizabethan text was intended to counter the pope’s claimed power to depose kings, the language was drawn, and presumably meant, more broadly.30 The Fifth Commandment was understood to enjoin obedience to one’s political, as well as biological, parent.

The homily on disobedience and rebellion raised the issue of what subjects should do if faced with a wicked ruler. The answer was emphatic:

What shall subjects do then? shall they obey valiant, stout, wise, and good princes, and contemn, disobey, and rebel against children being their princes, or against undiscreet and evil governors? God forbid: for first, what a perilous thing were it to commit unto the subjects the judgment, which prince is wise and godly, and his government good, and which is otherwise; as though the foot must judge of the head: an enterprise very heinous, and must needs breed rebellion. . . . If therefore all subjects that mislike of their prince should rebel, no realm should ever be without rebellion.31

The homily on obedience explained that if the king or magistrates gave orders contrary to Christian teachings “we must rather obey God than man,” but added “in that case we may not in any wise withstand violently, or rebel against rulers, or make any insurrection, sedition, or tumults . . . against the anointed of the Lord, or any of his officers; Edition: current; Page: [xxxi] but we must in such case patiently suffer all wrongs and injuries, referring the judgment of our cause only to God.”32 Saints Peter and Paul were cited as proof that kings were to be obeyed “although they abuse their power” for “whosoever withstandeth, shall get to themselves damnation; for whosoever withstandeth, withstandeth the ordinance of God.”33

The homily on “disobedience and rebellion” claimed Lucifer as the “first author and founder of rebellion.”34 Congregations were reminded of the biblical admonition “rebellion is as the sin of witchcraft,” a violation of all ten commandments. Rather than resist godless and wicked rulers Christians were to rely upon tears, prayers, and, if need be, suffer martyrdom. One of James I’s chaplains, John Rawlinson, neatly distinguished kings from tyrants: “a King makes the law his will, because he wills that which the law wills. But a tyrant makes his will a law, because what he wills, he will have to be law.”35 Nevertheless Rawlinson insisted, if the king were “the very worst that may be, a tyrant; one that will make the law an out-law; yet shall it not be lawfull for any mortall man vindictively to meddle with him.”36 Scripture, as interpreted by the Anglican hierarchy, cared nothing for the ancient constitution, the law, or Magna Carta. Englishmen were enjoined to follow the example of the early Christian martyrs, not King John’s barons.

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English law was scarcely more helpful. The chief legal guidance was the antique maxim “the king can do no wrong.” This was ordinarily understood to mean that if the king gave illegal commands they were not to be obeyed, and ministers who carried them out, though not the king himself, would be subject to punishment.37 But in the course of the century’s quarrels that tenet would be given a variety of interpretations. Royal apologists saw it as proof the king was above the law. His opponents read the tenet as evidence that since a king could do no wrong any king who behaved in an illegal manner was, as James I conceded, no longer king. In any case Charles, rather unwisely, argued that because he could do no wrong, neither could those who acted on his behalf.38 Some jurists, on the other hand, read it to mean that the king’s illegal commands were void on their face and should be ignored. The law had no procedure to hold the king himself accountable. This was not the case for rebellious lords, commons, judges, or bishops. A rebellious parliament could be dissolved by the king. It was only containment of royal power for which there was no accepted remedy.

THE VOCABULARY OF SOVEREIGNTY

Even without the king, Parliament, people, or lawyers seeking to enhance their share of power, the English ideal of a balanced government was beset with problems. The interpretations sixteenth-century Continental philosophers had given to “absolute” and “sovereign,” terms Englishmen were accustomed to applying to their kings, were Edition: current; Page: [xxxiii] sufficiently influential in England to set political nerves jangling.39 If the definition of sovereign was that power whose actions were not subject to the legal control of another and could not be rendered void by the operation of another human will, it was unclear just who or what was England’s sovereign. If the king was sovereign then he could not be subject to Parliament or the law. The king in Parliament came closer to the definition, but Parliament only met intermittently and in important respects answered to the higher authority of the law. Statutes approved by the king in Parliament were regularly modified by the justices in the royal courts and could even be found to be against law and therefore void.

Popular understanding of the English constitution was also challenged by the influential sixteenth-century French philosopher Jean Bodin. In his classic study The Six Books of the Commonwealth, Bodin insisted sovereignty must be not only absolute—“not limited either in power, or in function, or in length of time”—but indivisible.40 “To combine monarchy with democracy and with aristocracy,” as the English claimed to do, was in Bodin’s estimation “impossible and contradictory, and cannot even be imagined.”41 He specifically considered the English Parliament but found: “The entire sovereignty belongs undivided to the kings of England and that the Estates are only witnesses. . . . The sovereignty of the monarchy is in no way altered by the presence of the Estates.”42 To Bodin “the main point of Edition: current; Page: [xxxiv] sovereign majesty and absolute power consists of giving the law to subjects in general without their consent.”43

Consider an incident that occurred over the use of the word “sovereign.” When the Petition of Right was being drafted in 1628, the Lords moved to add a paragraph expressing “due regard to leave entire that sovereign Power, wherewith your Majesty is trusted for the protection, safety, and happiness of your people.” Many in the Commons voiced their dismay. “What is ‘sovereign power’?” John Alford asked. “Bodin says it is that that is free from any condition. . . . Let us give that to the King that the law gives him, and no more.” John Pym continued, “I know not what it is. . . . I know how to add ‘sovereign’ to his person, but not to his power.” The great jurist, Sir Edward Coke, pleaded that the Lords’ proposal would “overthrow all our petition. . . . I know the prerogative is part of the law, but ‘sovereign power’ is no parliament word in my opinion. It weakens Magna Carta and all other statutes, for they are absolute without any saving of sovereign power. . . . We must not admit of it; and to qualify it, it is impossible.”44 The Lords capitulated, and the offending language was rejected. The Petition of Right opened with dutiful reference to “our Sovereign Lord the King,” and men continued to refer to “sovereignty in a king,” but Coke and his colleagues had thwarted legal recognition of such sovereign power.

Or take “absolute.” The Speaker of the Commons welcomed James to his first English parliament by proclaiming that they had “exchanged our exquisite Queen for an absolute King.” But when James “desired and commanded, as an absolute King, that there might be a conference between the House and the judges,” members Edition: current; Page: [xxxv] were alarmed by his use of the term “absolute.”45 James may have been misunderstood, perhaps “all he was asserting was his rightful authority as a monarch whose claim to the English throne was beyond challenge,” the customary meaning of “absolute.” But apparently members did not see it that way.46 They were wise to be cautious for James intermittently pressed for absolutist powers, and there were those who argued that Charles I possessed the more potent meanings Europeans were giving these customary terms. It was presumably in response to this threat that Coke had already begun to make exalted claims for the antiquity and supremacy of the law.

THE SOVEREIGNTY OF THE KING

The contention that English monarchs were absolute within their realm may have begun as a defense of royal religious supremacy, vis-à-vis the pope, but by the early seventeenth century it had become a flirtation with a more complete absolutism known as the divine right of kings. While there was general agreement that all who ruled did so by divine right, what was novel and controversial in the divine right thesis were the powers attributed to that right, an exclusive, unlimited, irresistible sovereignty.47 J. N. Figgis found its complete form included the following propositions:

1. Monarchy is a divinely ordained institution.

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2. Hereditary right is indefeasible. The succession to monarchy is regulated by the law of primogeniture. The right acquired by birth cannot be forfeited through any acts of usurpation, of however long continuance, by any incapacity in the heir, or by any act of deposition.

3. Kings are accountable to God alone. Monarchy is pure, the sovereignty being entirely vested in the king whose power is incapable of legal limitation. All law is a mere concession of his will, and all constitutional forms and assemblies exist entirely at his pleasure. He cannot limit or divide or alienate the sovereignty, so as in any way to prejudice the right of his successor to its complete exercise. A mixed or limited monarchy is a contradiction in terms.

4. Non-resistance and passive obedience are enjoined by God. Under any circumstances resistance to a king is a sin, and ensures damnation. Whenever the king issues a command directly contrary to God’s law, God is to be obeyed rather than man, but the example of the primitive Christians is to be followed and all penalties attached to the breach of the law are to be patiently endured.48

Echoes of these views appear in the published works of clerical, legal, and lay supporters of James I and Charles I and in their own royal pronouncements. All argue from Scripture and the law of nature that absolute monarchy is the divinely ordained form of government, many pointing to instances in Scripture of kings created by God. Adam is transposed into the first king as well as the father of mankind. Monarchy is depicted as the most natural, stable, and perfect form of government, even though the power of kings cannot be limited and subjects might be abused. Because England is a monarchy Edition: current; Page: [xxxvii] its king, by definition, is absolute and necessarily above the law and Parliament, answerable only to God. History is employed to demonstrate that England’s kings are more ancient than parliaments. Both the common law and the people’s rights exist by his grace. That is, no right is a right, all are mere gifts of the Crown. Because the king is God’s agent there can be no active resistance to him or to his officials, merely a passive resistance in extreme cases. Clerical authors tended to subscribe to a more extreme form of absolutism, but all royalist writers espoused variations on Figgis’s divine right monarchy.

Examples of such texts abound in the years leading up to the civil war. To take a notorious example, Roger Maynwaring, one of Charles’s chaplains, claimed in a fit of zealous sermonizing reprinted below that kings were above all, “inferiour to none, to no man, to no multitudes of men, to no Angell, to no order of Angels.49 According to Maynwaring that meant that “all the significations of a Royall pleasure, are, and ought to be, to all Loyall subiects, in the nature and force of a Command.50 Subjects must either obey the king’s sovereign will—“which gives a binding force to all his Royall Edicts”—even if “flatly against the Law of God,” or suffer patiently.51 Maynwaring’s sermon was published by royal command and so outraged public opinion that when Parliament next met, Maynwaring was charged with an intention to destroy it, sentenced to the Fleet, and fined £1,000. Charles agreed to suppress the offending tract but a month later rewarded Maynwaring with the first of a series of preferments that culminated in the bishopric of St. Davids.

In another notable case John Cowell, in his legal dictionary Interpreter, described the king as “above the Law by his absolute power . . . Edition: current; Page: [xxxviii] and though for the better and equall course in making Lawes, hee doe admit the three Estates, that is, Lords Spirituall, Lords Temporall, and the Commons unto Councell: yet this . . . is not of constraint, but of his owne benignitie, or by reason of his promise made upon oath, at the time of his coronation.”52 Cowell wrote of Parliament: “And of these two one must needes bee true, that either the King is above the Parliament, that is, the positive lawes of his kingdome, or else that hee is not an absolute King.”53

On the sensitive issue of “subsidie,” or tax, Cowell observed: “Some hold opinion, that this Subsidie is granted by the Subject to the Prince, in recompense or consideration, that whereas the Prince of his absolute power, might make Lawes of himselfe, hee doth of favour admit the consent of his Subjects therein. . . .”54

These definitions provoked such furor that James I agreed to condemn the book, but in 1637 Charles allowed it to be reissued. James and Charles apparently shared Cowell’s opinions. In 1621, when in defiance of James’s injunction that they not “meddle henceforth with any thing concerning our government or deep matters of state,” the Commons claimed a right to do so, James retorted: “we cannot allow of the style, calling it your antient and undoubted right and inheritance; but could rather have wished that ye had said, That your privileges were derived from the grace and permission of our ancestors and us, for most of them grow from precedents, which shows rather a toleration than inheritance.”55

Whether James did not “appreciate or even understand” the English constitution, or simply did not accept it, he was realist enough Edition: current; Page: [xxxix] to modify his behavior in the face of widespread anger.56 But popular nerves were so frayed by 1625 when Charles’s first Parliament met, that a worried member cautioned, “We are the last monarchy in Christendom that retain our original rights and constitutions. Let us not perish now!”57

Charles pressed his agenda with more daring and obstinacy than his father. While he wrote no books on kingship, he made his feelings plain in his declarations, appointments, and the publication of tracts that advocated divine right. For example, Charles warned the parliament of 1626: “Parliaments are altogether in my power for their calling, sitting, and dissolution; therefore as I find the fruits of them good or evil, they are to continue or not to be.”58 He informed the parliament of 1628 that common danger was the cause of its meeting, supply the end, and unless every man there did his duty other means would be used to obtain the needed funds. “Take not this as a threatening,” he added, “for I scorn to threaten any but my equals.”59 At the prorogation of that tense session the king chaffed, “I owe an account of my actions to none but to God alone.”60 It was the parliament of 1628 that, in an act of desperation, attempted to defend Edition: current; Page: [xl] English liberties with passage of the Petition of Right. Charles reluctantly agreed to the petition but vowed not to call another parliament until his subjects came to “a better understanding of us,” and he made it an offense to repeat rumors about a parliament being summoned.61

In the absence of parliaments, Charles raised monies by resorting to his emergency powers. This use of emergency powers when there was no emergency was considered “legal tyranny.”62 The king admitted as much in 1642 when he referred to his government of the 1630s as “departing too much from the known rule of law, to an arbitrary power.”63 His stratagems led to a highly publicized series of legal challenges. The king’s position was upheld in each case, but it proved a pyrrhic victory for the Crown and a disaster for the bench.64 Henry Parker’s vigorous denunciation of the verdict in the shipmoney case, reprinted below, eloquently presents the grave constitutional ramifications contemporaries saw. Edward Hyde, an attorney and future royalist, was one of many who found Charles’s politicization of royal judges unprecedented, and more alarming than any particular verdict: “it is very observable that, in the wisdom of former times, when the prerogative went highest . . . never any court of law, very seldom Edition: current; Page: [xli] any judge, or lawyer of reputation, was called upon to assist in an act of power; the Crown well knowing the moment of keeping those the objects of reverence and veneration with the people. . . .”65 But “in the business of the shipmoney and in many other cases in the Starchamber and at Council-board,” Hyde observed, “there were many impertinencies, incongruities, and insolencies, in the speeches and orations of the judges, much more offensive and much more scandalous than the judgments and sentences themselves.”66 These cases that drew the royal judges to the forefront of the struggle for sovereignty, not on behalf of the law but of the Crown, cost them their reputation as guardians of the people’s rights.

Charles took shelter under the ancient constitution in 1642 in his Answer to Parliament’s Nineteen Propositions. The ancient constitution provided monarchs special powers to cope with extraordinary occasions, as the Earl of Strafford pleaded in his defense before the House of Lords: “The prerogative must be used, as God doth his omnipotency at extraordinary occasions; the laws . . . must have place at all other times, and yet there must be a prerogative if there must be extraordinary occasions.”67 As for individual liberties, Strafford added, “I have and shall ever aim at a fair but a bounded liberty, remembering always that I am a freeman, but a subject; that I have a right, but under a monarch.”

Had the king’s aim been to preserve his traditional powers, upholding the ancient constitution was perhaps the most compelling approach. But nearly all pamphleteers advocating royal sovereignty steered clear of references to English legal and constitutional traditions.68 A notable exception was their fondness for the legal tenet, Edition: current; Page: [xlii] “The king can do no wrong,” which they interpreted to mean that the king was above the law.69

The promise of unchecked power made absolutist arguments alluring for kings. But in addition to the hostility the arguments aroused and their indifference to legality, they contained dangerous liabilities. Unwavering obedience to a ruler meant that any ruler, even a usurper, must be obeyed. The English crown had been won by the sword more than once, most recently by Henry Tudor in 1485, but in such instances legitimacy, continuity, and order were stressed to win over the population, not insistence upon absolute obedience.

The argument that since kingship was older than Parliament, that that institution and the people’s liberties were mere gifts from kings, also had its hazards. It harked back to William the Conqueror. Conquerors were believed to have absolute power over those they conquered. Hence, the claim of right from William jeopardized all the rights of Englishmen. Pym pointed out the danger when he presented the House of Commons’ indictment for treason against the Earl of Strafford. To Pym’s mind Strafford’s justification for his harsh treatment of the Irish—“They were a conquered Nation”—had “more mischiefe in it than the thing it selfe”:

They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treason, than that word is: There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he please to those that are conquered . . . England hath been conquered, and Wales hath been conquered, and by this reason will be in little better case then Ireland.70

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Any subsequent conqueror would automatically fall heir to such power. How then could the rightful king regain his throne? Pym also noted that if a king rules as a conqueror the people are restored to the right of the conquered, to recover their liberty if they can.

After a conquest a distinction often arose between the king “de facto” and the king “de jure.” Henry VII’s De facto Act of 1495, which held those loyal to the king “for the time being” blameless from later charges of treason, was cited in the 1660s by individuals accused of complicity with the Interregnum governments. In sum, extreme absolutist arguments were weapons to be employed with caution. They tended to backfire.

THE SOVEREIGNTY OF LAW

In the early years of the seventeenth century, as claims that monarchs were above the law gained currency, a rival view—of a law more ancient than any king, a law that defined kingship—also gained ground. Its advocates saw England’s vast accretion of customs, principles, and rules as the collective wisdom of its people. Pym reminded the Lords, “Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law.”71 The proper execution of the laws, the royalist Sir Roger Twysden claimed, was the “greatest (earthly) blessing of Englishmen.”72

The preeminent champion of the law was the brilliant and combative Sir Edward Coke, whose extraordinary career spanned three reigns.73 As an attorney Coke was a strenuous defender of the Edition: current; Page: [xliv] Crown, as a judge a daring defender of the law, as parliamentarian a staunch defender of the rights of Parliament. His famous reports of Elizabethan and Jacobean cases began to appear in 1600 and by 1615 had run to eleven volumes.74 Like Cowell’s Interpreter, Coke’s Reports had a constitutional thrust. Lord Chancellor Ellesmere accused Coke of dishonest reporting and of having “purposely laboured to derogate much from the rights of the Church and dignity of churchmen, and to disesteem and weaken the power of the king in the ancient use of his prerogative.”75 Whether Coke’s Reports did “purposely” derogate the rights of church and Crown, they had that impact.

Both the prefaces to Coke’s Reports and the cases he included are noteworthy. The prefaces constitute a magnificent tribute to the common law. Coke found “no Learning so excellent both for Prince and Subject, as Knowledge of Laws; and no Knowledge of any Laws (I speak of human) so necessary for all Estates . . . as the common Laws of England.”76 He refuted the claim that English monarchy was more ancient than the people’s rights. True, the English had been conquered, but Coke argued “the several Conquerors and Governors” of the realm, “Romans, Saxons, Danes, or Normans,” found English laws so excellent they chose not to alter them.77 The law courts and the High Court of Parliament Coke considered “a part of the frame of the common laws.”78 He even found ancient statutes Edition: current; Page: [xlv] that mandated frequent meetings of Parliament.79 Parliament’s champions leapt upon the finding that Parliament was not the creation of any monarch.80

The contents of Coke’s Reports also had constitutional significance. Some cases he includes fix the jurisdiction of clerical and common law courts, generally to the benefit of common law, and decide questions of royal prerogative. “Prohibitions del Roy” takes up the prickly issue of whether the king of England can interpret law himself and whether he is bound by the law. Here Coke falls back on Bracton’s pronouncement that the king is under no man, but under God and the law.81 When Coke discussed cases where precedents for greater royal powers were cited, he countered with a preeminent claim of right from Magna Carta and the comments of ancient legal authorities.

Yet while the lavish praise for common law helped to elevate the High Court of Parliament and circumscribe the powers of the Crown, the main thrust was for the sovereignty of law itself. As Francis Bacon explained: “In the Laws we have a native interest, it is our birth-right and our inheritance . . . under a Law we must live, and under a known law, and not under an arbitrary law is our happiness that we do live.”82 Legal experts held any action of the Crown or Parliament that was against law—that is natural, fundamental law—void. This was the usual understanding of the phrase “the king can do no wrong.”83 Statute law enacted by Parliament was also held to be Edition: current; Page: [xlvi] merely declarative of common law and if found to be at odds with it was also “void in the act.” As Coke explains in a famous passage in Bonham’s Case: “in many cases the common law will control acts of Parliament and some times adjudge them to be utterly void; For when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.”84

This “sovereign law” was not written statute, or common usage, or even Magna Carta but the law of equity and right reason. The test of right reason was its harmony with the law of nature or natural law. Unfortunately, the vagueness of natural law made it a slippery standard to apply. Those who argued for the sovereignty of kings often based this thesis on the supposed preference for monarchy in nature. But those who defended the many against the tyranny of an individual ruler argued that the most basic law of nature was a right to self-defense.

Statesmen, clergymen, and pamphleteers could debate the meaning and application of natural and common law, but the law was interpreted by learned judges. This was the Achilles heel in the theory of the law as sovereign. The judges, royal appointees, were thrust into the pivotal role. Charles altered judges’ patents so they no longer sat Edition: current; Page: [xlvii] during good behavior but at the pleasure of the grantor, “the better,” the Grand Remonstrance charged, “to hold a rod over them.”85

Most Stuart judges seemed anxious to avoid the constitutional spotlight. S. R. Gardiner finds “tacit renunciation by the Judges of that high authority which the Commons thrust upon them in 1628.”86 “They refused to be arbitrators between the King and the nation,” he argued. “They accepted the position which Bacon had assigned them, of lions beneath the throne, upon whom was imposed the duty of guarding the throne from attack.”87 The result was, as W. J. Jones found, that the judges in the reign of Charles I submissively legitimated the king’s use of obsolete customs and fees until “in the end, judicial approval and political absurdity walked hand in hand.”88 All this notwithstanding, the claim for the supremacy of law was an attractive one that found its way into numerous arguments for the limitation of royal power, sometimes also of parliamentary power, occasionally of both.

THE SOVEREIGNTY OF PARLIAMENT

Parliament is often portrayed as the aggressor in the struggle for sovereignty. Its prewar pronouncements have been variously characterized as the high road to civil war, unwarranted aggression, or, if Edition: current; Page: [xlviii] defensive, then “neurotically defensive.” The king had regarded Parliament’s defense of its privileges and the people’s liberties, even its committee system, as an attack upon monarchy itself.89 And it has been argued recently that it was Parliament’s first assertion of sovereignty in 1642 that brought the country to the “constitutional impasse” that led to war.90 But this is to overlook the fact that Parliament’s initial reactions were defensive and only shifted to the offense gradually and in extremis.91 James’s pretensions had frightened his first parliament into drafting the “Form of Apology and Satisfaction” to remind him their “privileges and liberties” were their “right and due inheritance, no less than our very lands and goods,” that “this High Court of Parliament . . . gives laws to other courts, but from other courts receives neither laws nor orders.”92 The king was God’s lieutenant, but the Commons claimed to speak for his people whose voice “in the things of their knowledge, is said to be as the voice of God.”93 In 1604, however, this voice spoke in a whisper.

Parliament was less reticent about its claim to be the highest court. “Such matters as for difficulty are not fit for the Judges, or through eminent delay are not despatched by the Judges,” Edward Hyde told Edition: current; Page: [xlix] the Commons, “shall be determined in Parliament.”94 Some polemicists had begun to portray the king as the people’s servant, Parliament their representative.95 But Parliament’s own constitutional pronouncements—the Protestation of 1621 and Petition of Right of 1628—bear out its contention that it was defending the ancient constitution. Even after it began to encroach upon royal prerogatives with passage of the Grand Remonstrance, the Militia Ordinance, and the Nineteen Propositions, Parliament stuck to its conservative rhetoric.96 Throughout the year prior to war, it avoided branding Charles a tyrant or even asserting that he had behaved in an arbitrary manner.97 The drafters of the Grand Remonstrance removed the words “tyranny” and “arbitrary” from their long and otherwise belligerent text.98 Not until 6 June 1642 when they needed to justify passage of the Militia Ordinance without royal consent did the two Houses claim supreme authority.

The High Court of parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of his Majesty as are prejudicial thereunto. . . . it is likewise a council, to provide for the necessities, prevent the imminent dangers, Edition: current; Page: [l] and preserve the public peace and safety of the kingdom, and to declare the king’s pleasure in those things are requisite thereunto; and what they do herein hath the stamp of royal authority, although his Majesty, seduced by evil counsel, do in his own person oppose or interrupt the same.99

Within the month Henry Parker, Parliament’s leading theorist, had resolutely insisted upon the sovereignty of the Lords and Commons in his provocative reply to the king’s Answer to the Nineteen Propositions, “Observations upon some of his Majesties late Answers and Expresses.”100

The ground had been prepared for the notion Parliament could act without, or in opposition to, the king by a shift in the way his parliamentary role was understood. He had been considered the head of Parliament. Its three estates were the lords spiritual, the lords temporal, and the commons. When the classical division of governments into monarchy, aristocracy, and democracy was reintroduced into England in the mid-sixteenth century, English government began to be viewed as a mixture of all three.101 In 1591 William Lambarde, a Edition: current; Page: [li] renowned legal antiquary, redefined the three estates of Parliament to correspond with the three types of government. The king, in this analysis, was one of the estates, the others being the House of Lords and the House of Commons. By implication the two houses “were equal partners in lawmaking with the king,” the clergy were no longer a separate estate.102 Lambarde’s definition had gained acceptance by 1640 and was officially, if reluctantly, endorsed by Charles in 1642 in his Answer to Parliament’s Nineteen Propositions.103 Charles did not write his Answer, however, and probably disagreed with this part of it for, as Pocock reminds us, he died “affirming other principles.”104

Charles’s acceptance of the monarchy as one of three estates of Parliament had grave repercussions. It strengthened the view that the king in parliament, not the king alone, was sovereign. It reduced the king to one of three apparent equals, and accepted elimination of the bishops as a distinct estate. Moreover, the concept of three forms of government introduced a republican component into English political theory. And since each form was supposed to possess “an inherent tendency to degeneration,” the king’s power was per se imperfect, not the earthly representative of divine power.105 All this had the effect of reducing the king to an estate of his own realm.

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WAR FOOTING

The civil war seemed to Englishmen an unnatural war, a war without an enemy.106 They felt distraught at what appeared then, and has appeared since, as an inexorable march to war. In the months before the battle of Edgehill Englishmen from across the realm pleaded for compromise in a great avalanche of petitions to the king and Parliament.107 All to no avail.

As the tracts in this volume illustrate, the focus of the quarrel shifted along with political events. Until 1641 the central issue was whether the king was sovereign with unlimited power or accountable to the law and his subjects. Once the king had left London, debate turned to whether the two houses of Parliament could function without a king, and whether the severely reduced numbers of MPs still sitting at Westminster constituted a true parliament. And leading up to and after the outbreak of war there was understandable concern about what circumstances, if any, justified resistance to the monarch. In order to wage war both king and Parliament had to assert their right to govern alone. This was more difficult for Parliament, which claimed to be governing in the name of king and Parliament while fighting against Charles Stuart. Even if the king’s role was seen as merely coordinate, he was essential to the regular functioning of Parliament. It could not legislate without him. Worse, opposition to him, even by MPs, bore the stigma of rebellion. Parliament and its advocates tried various ways of getting around these difficulties. The two houses repeated to the point of absurdity the old saw that the king was an innocent misled by evil councilors. When Edition: current; Page: [liii] this proved no longer tenable they began to distinguish between the king and his office. The ancient laws of Edward the Confessor appeared to support this distinction: “The king, because he is the vicar of the highest king, is appointed for this purpose, to rule the earthly kingdom, and the Lord’s people, and, above all things, to reverence his holy church . . . which unless he do, the name of a king agreeth not unto him, but he loseth the name of a king.”108 Parliament insisted it fought in defense of the ancient constitution, against the person of Charles Stuart. Its battle flags bore the slogan, “For King and Parliament,” while the royalist slogan was simply “For the King.” The distinction between the king and his office—the theory of the king’s “two bodies”—evoked Catholic and Calvinist justifications of resistance to a godless ruler. Royalists pounced upon such arguments as “papist.” Yet, the distinction between kings and tyrants had considerable theoretical foundation and served Parliament’s supporters well.109 More practical, Parliament rediscovered the concept of the “ordinance” as an alternative to a statute, a decree that could be used in time of emergency in the absence of the king.110 Salus populi, the safety of the realm, was acknowledged as the highest law. With that in mind Parliament argued it was forced to act to save itself and the country.

Almost certainly most Englishmen and most of those taking sides in the civil war wanted a compromise. Indeed, in the Solemn League and Covenant of 1643, Parliament’s agreement with the Scots, it had declared this one of its principal aims. In token, as John Kenyon points out, it was not until June 1644 that MPs who had sided with the king were formally expelled and new elections held for their Edition: current; Page: [liv] seats.111 But once fighting had started, whenever compromise seemed possible the radical elements on both sides became more vocal, obstinate, and extreme.112 David Wootton finds this true during the winter of 1642/43 when there was fear the longing for a settlement might lead Parliament to give in to the king. Indeed, Wootton dates the origins of the transition “from rebellion to revolution” to that period. The debates throughout that winter foreshadowed many of the arguments that would be used in 1646 by the Levellers.113

On the royalist side tracts published on the king’s behalf were controlled tightly by the Crown.114 Most abandoned the moderate tone of his Answer to the Nineteen Propositions and reverted to harping upon his divine right and the sin of rebellion. They even echoed Charles’s claim that his opponents only pretended to fight for English laws and liberties but actually sought personal power.

Argument became more intense after the surrender of Charles in 1646. The long and fruitless negotiations between him and his victorious parliament led to general frustration, in particular among members of the New Model Army, who feared all they had fought for would be lost. The army’s proposals for future government and the rise of the Leveller party dominated the pamphlet conversation of 1646 and 1647. The Levellers’ program, extreme for the time, demanded social reform, religious toleration, a wider franchise, and abolition of the monarchy and House of Lords. The importance of the Levellers to contemporary politics and theory has been overemphasized because of our respect for their opinions. Their chief Edition: current; Page: [lv] contemporary impact was on the men of the New Model Army. Nonetheless their arguments highlight the parameters of the political and social thought of that era.

The stalemate caused by Charles’s refusal to surrender his powers and Parliament’s inability to trust him was shattered in 1648 when a series of uprisings known as the second civil war broke out. As far as the New Model Army was concerned, this was final proof of the king’s intransigence and duplicity. Once they had restored order, the army took matters into their own hands, seizing the king and, in December 1648, purging the more moderate members from Parliament. Pride’s Purge fractured what unity remained within the victorious party and alienated a large segment of the English population. The pretence that members still sitting in Parliament (derisively known as the Rump) were representative of the English people, or still a parliament became far more difficult to sustain. A vigorous argument was advanced by John Goodwin in a tract published 2 January 1649 that the true representative of the people was the parliamentary army, not the Rump Parliament.115 It was incumbent upon the army to act in the public interest. Two days later, on 4 January 1649, the Rump claimed sovereignty for itself. Its proclamation explained that “the people are, under God, the original of all just power,” and the Commons of England, “in parliament assembled,” as representatives of the people “have the supreme power in this nation.”116 It announced whatever the House of Commons “declared for law” had the force of law “although the consent and concurrence of king, or House of Peers, be not had thereunto.”

If this were not provocative enough, the decision to put the king on trial led to a spate of passionate tracts that labored over the issue Edition: current; Page: [lvi] of whether the king was above the law, where sovereignty lay, and what action it was appropriate to take. One of these, the anonymous tract “The Peoples Right Briefly Asserted”117 published two weeks before Charles’s execution, argued that the people had the right to depose a tyrant.

Charles’s execution on 30 January 1649 followed by the abolition of the monarchy and the House of Lords was a watershed. Not only those who supported the Crown during the civil war, but thousands who supported Parliament were distressed by a turn of events so contrary to their hopes. Gone was the ancient constitution. Gone the Church of England. Gone the familiar landmarks. The central question was whether the radical parliamentarians governing the realm constituted a legitimate authority or were usurpers. If they were usurpers were they entitled to obedience? The Rump’s declaration in March, “Expressing the Grounds of Their Late Proceedings, and of Setling the Present Government in the Way of a Free State,” is reprinted below. It asserted that the foundation of government was an agreement of the people, an agreement Charles had violated by his tyrannical behavior. He had therefore forfeited his right to the crown. But the Rump’s own advocates quickly switched to the simpler and starker argument that the war had been an appeal to the judgment of God, and God had decided in favor of Parliament. In fact Charles had been charged at his trial with attempting to thwart the decision of God by stirring up further war against his subjects.

Since God had ordained the new government, it was the subject’s duty to obey. Ironically, the debate after January 1649 found royalists and Anglican clergy, who had advocated absolute obedience even to a tyrant, arguing for a right to resist, while parliamentarian pamphleteers defended obedience to the government in power, whatever Edition: current; Page: [lvii] its legitimacy. Over time, they claimed, that obedience bestowed legitimacy.118

When the Rump tried to ensure obedience through the imposition of the Engagement oath in 1650, the oath itself became the focus of intense controversy.119 It required adults “to be true and faithful to the Commonwealth of England as it is now established, without a king or House of Lords.” The ensuing argument raised fundamental questions of allegiance and duty. The new oath was designed to give as little offense as possible. Still it seemed in direct opposition to the traditional oath of allegiance to the king, which posed a special problem for royalists. It was just as difficult to square with the Solemn League and Covenant of 1643 dear to Presbyterians. This last required subjects to pledge, among other things, “to preserve and defend the king’s Majesty’s person and authority” with “no thoughts or intentions to diminish his Majesty’s just power and greatness.”120 Debate also focused on the binding power of oaths, the appropriate object to which allegiance was due, and the proper behavior of law-abiding men.

The language of the Engagement Oath ensured that the spotlight would be turned on the commonwealth, the community itself, as an object of loyalty, and the primacy of its needs over any specific form of government or particular governors. The Rump’s defenders sensibly focused on the welfare of the people, their safety and immediate interest, and on concern for the peace and quiet of the realm. This Edition: current; Page: [lviii] argument, that the welfare of the people, salus populi, was necessarily more important than the welfare of a single individual had under-girded both royalist and parliamentarian arguments from the outset. The royalists claimed rebellion could not be tolerated because it caused the greatest disruption to the common weal. Supporters of Parliament believed the welfare of the community must be placed before that of monarchical will. Resistance became legitimate when the people were forced to defend themselves from the machinations of their king.

The most famous of those weighing in with a critical approach to the engagement controversy was Thomas Hobbes. Hobbes had fled to the Continent before the civil war but later joined the royalists in exile. Leviathan was published in 1651 at the height of the debate. It offended the royalists and led to Hobbes’s sudden return to England, where it met with a somewhat better reception. Hobbes credits Leviathan, with its insistence upon obedience to the government that can offer protection, with persuading many hundreds of royalist gentlemen to submit to the new regime. This is doubtful as his amoral tone shocked rather than persuaded both royalists and parliamentarians. His views on obedience, however, were in line with those of less cynical authors writing at the time.121

Most members of Parliament and their supporters did not wish to claim the right of conquest. Instead, they based their right to govern the realm on their claim to represent the people, then enthusiastically claimed for the people the origins of power and even supreme power. But they generally agreed that the people’s power had been transferred to their representatives in Parliament and stated, or implied, that there it must remain. In 1641 William Pierrepont claimed Edition: current; Page: [lix] the supremacy of the three estates lay in Parliament as the people’s representatives: “Unlimited power must be in some to make and repeal laws to fit the dispositions of times and persons. Nature placeth this in common consent only, and where all cannot conveniently meet, instructeth them to give their consents to some they know or believe so well of as to be bound to what they agree on.”122 Even those who argued that the people held the king to account, hesitated to give the people similar control of Parliament. Once representatives had been selected the power was theirs. Charles Herle, a supporter of Parliament writing in 1642, asked whether if neither the king nor Parliament should discharge their trust “the people might rise and make resistance against both.” He answered that this was a position “which no man (I know) maintaines.”123 Instead Herle finds, “the Parliament’s, is the people’s owne consent, which once passed they cannot revoke . . . no power can be imployed but what is reserved, and the people have reserved no power in themselves from themselves in Parliament.”124

The anonymous author of “The Peoples Right Briefly Asserted,” published on the eve of the king’s trial, came to the same conclusion by a slightly different route. He linked the people with Parliament and, quoting Bartolus, stated that a king may commit treason for which he can be deposed and punished “by that Lord against whom he hath offended, which is the People and those who represent them.”125 He argues that “the Law is more powerful than the King . . . But the whole Body of the people are more powerful than the Law, as being the parent of it.”126 The people never gave away all their Edition: current; Page: [lx] power, even in hereditary monarchy. However, in his view what they reserved was “their supream Power of making Election, when need required.”127 He concludes, the Parliament, “if they had a lawful power to proceed in this War,” have power to dispose of their victory “as they shall think best for the future security of the whole people, whom they represent.”128 This is advocating parliamentary sovereignty on the basis that the people had irrevocably transferred their sovereignty to their representatives.

A case was made for the sovereignty of the people in a powerful tract by William Ball published in 1646. Ball argues that a free people such as the English may bestow what he calls their “power extensive” on a king or a parliament but not their “primitive, or intensive power.” Nor did they cease to be free “notwithstanding their long Lease of Trust.”129 The final freedom “to dispose, or determine themselves . . . they never part, or parted withall; for at what time soever they should do it, they cease to be . . . a free People, or a People which are freely under a Law by common consent.”130 Thus he argued that the English people “never gave, or voluntarily asserted, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary power over them, but only a Discresive, or Legall Authority intended ever for their good in generall.”131 If need be they were entitled to defend themselves against both king and Parliament. He granted that Parliament was the highest “Court extensive” but found “the People in generall . . . are the highest, or greatest Power Intensive, in that they are the efficient, and finall cause under God, of the Parliament.”132

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The republican experiment also produced an outpouring of new ideas about the ideal arrangements for English government. Among the most notable were those of James Harrington, whose Commonwealth of Oceana appeared in 1656.133 Other supporters of a parliamentary system, both defenders and critics of the Interregnum governments, took to their pens. Isaac Pennington Jr., son of the famous London alderman, considered deeply how government might be restructured to protect popular liberties and produced a highly original tract recommending the separation of powers, the separation of church and state, and other notions that foreshadowed ideas John Locke would later champion.134

Throughout the Interregnum much was done in the name of the people, but popular sovereignty was never permitted. In fact during the Interregnum the sovereignty of Parliament was never tested for the Rump, and protectorate parliaments were not representative and were too unpopular to hold a traditional general election to correct that defect. Nor were the ideas proposed for a more perfect republic put into practice. The Rump and the Protectorate of Oliver Cromwell did produce governments that were sovereign, but without a solid, theoretical basis for that sovereignty, merely, dare it be said, the rights of a conqueror. Nevertheless notions of sovereignty continued to be debated and old ideas championed despite the contemporary political reality. The disintegration into political confusion and arrival in London of George Monck and his army provoked the frantic publication of pamphlets recommending various courses for the future. Their authors pleaded, argued, and cajoled in a desperate effort to persuade Monck and later the members of the Convention. Among these pamphlets was Sir Roger L’Estrange’s nostalgic “Plea Edition: current; Page: [lxii] for Limited Monarchy, As It Was Established in This Nation Before the Late War.” On the other side John Milton, in what was probably his most passionate essay, “The Readie & Easie Way to Establish a Free Commonwealth,” pleaded for the preservation of a republic, rather than “the perpetual bowings and cringings of an abject people” under monarchy.135 But all Milton’s eloquence was unavailing. At the last, when the realm seemed about to collapse into anarchy, the appeal of the ancient constitution, fraught with weaknesses, complexity, and no clear sovereign, proved irresistible as the basis for English government.

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Chronology

1603 Accession of James I (King James VI of Scotland).
1604 Hampton Court Conference.
1605 Gunpowder Plot.
1618 Outbreak of Thirty Years War.
1625 Death of James I; accession of Charles I.
1627 Five Knights’ Case.
1628 Parliament meets. Petition of Right.
1629 England begins eleven-year period without a parliament.
1633 Appointment of Archbishop Laud.
1634 First levy of ship money.
1637 King wins Ship Money Case, 7 judges for, 5 against.
1638 Scottish National Covenant.
1639 First Bishops’ War.
1640 Short Parliament meets in April. Long Parliament meets in November.
1641 Uprising in Ireland, massacre of Protestants.
1642 Outbreak of civil war.
1643 Solemn League and Covenant. Scots enter war in England.
1645 New Model Army created.
1646 Charles surrenders.
1647 Charles captured by army. Army debates at Putney.
1648 Second civil war. Pride’s Purge.
1649 Charles tried and executed. Monarchy and House of Lords abolished. England declared a commonwealth.
1650 Engagement Oath required. Charles II and Scots defeated at Dunbar.
1651 Charles II and Scots defeated at Worcester. Charles flees to France.
1653 Cromwell expels the Rump Parliament. Instrument of Government drawn up. Cromwell becomes Lord Protector.
1654 First Protectorate Parliament.
1655 Penruddock’s uprising.
1656 Rule of Major Generals. Second Protectorate Parliament.
1657 Cromwell refuses crown.
1658 Cromwell dies. Richard Cromwell becomes Protector.
1659 Richard Cromwell resigns. Rump Parliament recalled. George Monck marches with army to London.
1660 Long Parliament recalled. Convention Parliament summoned. Charles II invited back. Monarchy restored. Trial of regicides.
1661 Cavalier parliament meets. Passage Militia Act, Corporation Act.
1662 Passage Uniformity Act. Trial of Sir Henry Vane.
1670 Secret Treaty between Charles II and Louis XIV.
1672 Charles issues Declaration of Indulgence.
1673 Test Act.
1678 Second Test Act.
1680 Exclusion Bill introduced.
1683 Rye House Plot. Trial of William Lord Russell, Algernon Sidney. Oxford decrees condemn all resistance.
1685 Charles II dies. Accession of James II.
1687 James II issues Declaration of Indulgence.
1688 Seven Bishops Trial. Arrival of William of Orange. Glorious Revolution.
1689 Convention Parliament meets. Bill of Rights. Accession of William and Mary.
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The Struggle for Sovereignty, Volume I

Under God and the Law

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Edward Coke, The Second Part of the Reports

Sir Edward Coke, 1552-1634

The Second Part of the

REPORTS

OF

EDWARD COKE,

Her Majesty’s Attorney-General,

OF

Divers Matters in Law, with great and mature Consideration resolv’d and adjudg’d, which were never resolv’d or adjudg’d before; and the Reasons and Causes thereof; during the Reign of the most Illustrious and Renowned Queen ELIZABETH, the Fountain of all Justice, and the Life of the Law.

With References to all the BOOKS of the COMMON LAW, as well Ancient as Modern.

Videte quod non mihi soli laboravi, sed omnibus exquirentibus scientiam.

Ecclesiasticus, Cap. 24.

Lex est commune praeceptum, virorum prudentium consultum, delictorum quae sponte vel ignorantia contrahuntur, communis reipublicae sponsio.

Papian, Lib. 1. Definit’.

Lex dicitur a ligando, quia o bligat; vel dicitur a legendo, quia publice legatur.

Isiodorus.

Cum dico legem, a me dici nihil aliud intelligi volo quam imperium; sine quo domus ulla, nec civitas, nec gens, nec ho minum universum genus stare, nec rerum natura o mnis, nec ipse mundus potest.

Cic. Lib. 1. de Legibus.

Thomas Wight. 1602.

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The feisty and brilliant Sir Edward Coke was probably the greatest champion of the common law. His extraordinary career spanned three reigns: he served as speaker of the House of Commons and later as attorney-general under Queen Elizabeth; as chief justice of the common pleas and chief justice of the King’s Bench under James I; and was an outspoken member of Parliament under James and Charles I. His role in a series of cases that limited the powers of the king and church courts led to his dismissal from the bench in 1616. Coke remained active in Parliament, leading the effort for passage of the Protestation of 1621 and the Petition of Right in 1628.

Coke’s renowned Reports of cases he heard argued during the reigns of Elizabeth and James began to appear in 1600 and ran to thirteen volumes, the last two published by Parliament after his Edition: current; Page: [5] death. They are the most famous reports ever written on the common law and appeared in numerous editions, abridgments, and translations. The prefaces were in Latin and English, the main texts in Norman French with the pleadings in Latin. In the prefaces Coke laid out his defense of the antiquity and superiority of the common law and the high court of parliament as well as the independence of the judiciary. He exalted claims to individual liberties derived from a constitution more ancient than Magna Carta and laid a basis for both the British and American legal systems. Notwithstanding attacks on the accuracy of his versions of cases, his impact was enormous. The preface to the second volume of Reports, reprinted here, first appeared in 1602 while Coke was attorney-general. The original title page was entirely in Latin.

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To the learned Reader.

There are (sayth Euripides) three vertues worthe our meditation; To honour God, our Parents who begat us, καὶ νόμους τε κοινοὺς Ἑλλάδος and these Common Lawes of Greece. The like doe I say to thee (Gentle Reader), next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honour to thy Parentes, yeeld due reverence and obedience to the Common Lawes of England: for all Lawes (I speake of human) these are most equall and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defende against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Recordes and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speake of human) so necessarie for all estates, and for all causes, concerning goodes, landes, or life, the common Lawes of England. If the beautie of other Countries be faded and wasted with bloudie warres, thank God for the admirable peace wherein this Realme hath long flourished under the due administration of these Lawes. If thou readest of the tyranny of other Nations, wherein powerfull will and pleasure standes for Law & Reason, and where upon conceit of mislike, men are suddenly poisoned, or otherwise murthered, and never called to aunswere; Praise God for the Justice of thy gracious Soveraigne, who (to the worlde’s admiration), governeth her people by God’s goodnesse in peace and prosperity by these Lawes, and punisheth not the greatest offendor, no, though his offence be crimen laese Majestatis, Treason against her sacred person, but by the just and equall proceedings of Law.

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If in other kingdomes, the Lawes seeme to governe: But the Judges had rather misconstrue the Law, and doe injustice, than Displease the King’s humour, whereof the Poet speaketh; Ad libitum Regis, sonuit sententia Legis: Blesse God for Queene Elizabeth, whose continuall charge to her Justices agreeable with her auncient Lawes, is, that for no commaundement under the great or privie Seale, writtes or letters, common right be disturbed or delayed.1 And if any such commaundement (upon untrue surmises) should come, that the Justices of her Lawes should not therefore cease to doe right in any point.2 And this agreeth with the auncient Law of England, declared by the great Charter, and spoken in the person of the king; Nulli vendemus, nulli negabimus, aut differemus Justiciam vel Rectum.3

If the auncient Lawes of this noble Island had not excelled all others, it could not be but some of the severall Conquerors, and Governors thereof; That is to say, the Romanes, Saxons, Danes, or Normans, and specially the Romanes, who (as they justly may) doe boast of their Civill Lawes, would (as every of them might) have altered or changed the same.

For thy comfort and incouragement, cast thine eye upon the Sages of the Law, that have been before thee, and never shalt thou finde Edition: current; Page: [8] any that hath excelled in the knowledge of these Lawes, but hath sucked from the breasts of that divine knowledge, honesty, gravity, and integrity, and by the goodnes of God hath obtained, a greater blessing and ornament than any other profession, to their familie and posteritie. As by the page following, taking some for many you may perceive; for it is an undoubted truth, That the just shall flourish as the Palme tree, and spread abroad as the Cedars of Libanus.

Their example and thy profession doe require thy imitation: for hetherto I never saw any man of a loose and lawles life, attaine to any sound and perfect knowledge of the said lawes. And on the other side, I never saw any man of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.

If you observe any diversities of oppinions amongest the professors of the Lawes, contende you (as it behoveth) to be learned in your profession, and you shall finde, that it is Hominis vitium, non professionis. And to say the trueth, the greatest questions arrise not upon any of the Rules of the Common Law, but sometimes uppon Conveyances and Instruments made by men unlearned; Many times upon Willes intricately, absurdly, and repugnantly set downe, by Parsons, Scriveners, and such other Imperites.4 And oftentimes upon Actes of Parliament, overladen with provisoes, and additions, and many times on a sudden penned or corrected by men of none or verie little judgement in Law.

If men would take sound advise and counsell in making of their Conveyances, Assurances, Instruments, and Willes: And Councellors would take paines to be rightly and truely informed of the true state of their Client’s case, so as their advise and counsel might be apt & agreeable to their Client’s estate: And if Acts of Parliament were after the olde fashion penned, and by such only as perfectly Edition: current; Page: [9] knew what the Common Law was before the making of any Act of Parliament concerning that matter, as also how farre forth former Statutes had provided remedie for former mischiefes and defects discovered by experience; Then should verie few questions in Law arise, and the learned should not so often and so much perplexe their heades, to make attonement and peace by construction of Law betweene insensible and disagreeing wordes, sentences, and Provisoes, as they now doe.

In all my time, I have not knowen two questions made of the right of Discents, of Escheates by the common Lawe &c. so certaine and sure the Rules thereof be: Happy were Artes if their professors would contende, and have a conscience to be learned in them, and if none but the learned would take upon them to give judgement of them.

Your kind and favorable acceptation (gentle Reader) of my former Edition, hath caused me to publish these few cases in performance of my former promise, & I wish to you all no lesse profit in reading of them, than I perswade myselfe to have reaped in observing of them. This only of the learned I desire.

  • Perlege, sed si quid novisti rectius istis,
  • Candidus imperti; si non hiis utere mecum.
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Sir Edward Coke, The Twelfth part of the Reports

Sir Edward Coke 1552-1634

The Twelfth part of the

REPORTS

OF SIR

EDWARD COKE, Kt.

OF

Divers Resolutions and Judgments given upon solemn

Arguments, and with great Deliberation and Conference with the Learned Judges in Cases of

LAW,

The most of them very Famous, being of the Kings especiall Reference, from the

COUNCIL TABLE,

Concerning the Prerogative; As for the digging of

Salt-peter, Forfeitures, Forrests, Proclamations, &c. And the Jurisdictions of the Admiralty, Common Pleas, Star-Chamber, High Commission, Court of Wards, Chancery, &c. And Expositions and Resolutions concerning Authorities, both Ecclesiasticall and Civill, within this Realme.

Also the Formes and Proceedings of Parliaments, both in

ENGLAND, & IRELAND;

With an Exposition of Poynings LAW.

Non est leges condendi authoritas; ubi non est obediendi necessitas, & é converso.

With Alphabeticall Tables, wherein may be found the Principall Matters contained in this Book.

LONDON,

Printed for Henry Twyford and Thomas Dring, and are to be sold in Vine-Court Middle Temple, and at the George in Fleet-street, neer Cliffords-Inne, 1658.

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Prohibitions del Roy,” printed in part 12 of Coke’s celebrated Reports, is one of the most cited of all Coke’s cases and of clear importance to the issue of sovereignty. King James had raised the question of the king’s right to decide cases in the court of King’s Bench. This pretension, Coke informs us, he tactfully denied, pointing out that while the law was based upon reason and his majesty was well endowed with that commodity, cases were not to be decided by natural reason “but by the artificial reason and judgment of Law”—an art that required many years to master. James then cautioned that this being so the king would be under the Law “which was Treason to affirm.” Coke deftly handled this crucial point in a famous response. He quoted the great medieval jurist Henry Bracton’s pronouncement that the king was under no man, but he was under God and the law.

Writs of prohibition had been used to remove cases from ecclesiastical Edition: current; Page: [13] and admiralty courts to the common law courts on the ground the former courts lacked proper jurisdiction to try them. Coke had angered the church by repeatedly using writs of prohibition against ecclesiastical courts. A prohibition del roy denies the king’s jurisdiction.

This case occurred in 1607 while Coke was James’s chief justice of the common pleas but was not published until 1656. The edition used here is that of 1658. The manuscript version of the twelfth part of the reports in which it appeared was among Coke’s papers seized by Charles I in 1634 upon Coke’s death. Seven years later, on the petition of the House of Commons, Charles returned the manuscripts to Coke’s heir, Sir Robert Coke. Coke’s planned twelfth volume of Reports was published during the Protectorate. The mistakes in several of the legal citations are doubtless due to the fact that the work was published by those less painstaking than the author.

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Michaelmas Term. 5 James I

Prohibitions del Roy.

Note, upon Sunday, the tenth of November, in this same Terme, the King, upon complaint made to him by Bancroft Arch-bishop of Canterbury, concerning Prohibitions, the King was informed, that when Question was made of what matters the Ecclesiasticall Judges have Cognizance, either upon the Exposition of the Statutes concerning Tiths, or any other thing Ecclesiasticall, or upon the Statute 1. Eliz.1 concerning the high Commission, or in any other case in which there is not expresse Authority in Law, the King himselfe may decide it in his Royall person; and that the Judges are but the Delegates of the King, and that the King may take what causes he shall please to determine, from the determination of the Judges, and may determine them himselfe. And the Archbishop said, that this was cleer in Divinity, that such Authority belongs to the King by the Word of God in the Scripture. To which it was answered by me, in the presence, and with the cleer consent of all the Justices of England and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminall, as Treason, Felony, &c. or betwixt party and party, concerning his Inheritance, Chattels, or Goods, &c. but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custome of England, and alwayes Judgements are given, Ideo consideratum est per Curiam, so that the Court gives the Judgement. And the King hath his Court, viz. in the upper House of Parliament, in which he with his Lords is the supreame Judge over all other Judges; For if Error be in the Common Pleas, Edition: current; Page: [15] that may be reversed in the King’s Bench: And if the Court of King’s Bench erre, that may be reversed in the upper house of Parliament, by the King, with the assent of the Lords Spirituall and Temporall, without the Commons: And in this respect the King is called the Chief Justice, 20 H. 7.7.2.2 by Brudnell:3 And it appears in our Books, that the King may sit in the Star-Chamber, but this was to consult with the Justices, upon certain Questions proposed to them, and not in Judicio; So in the King’s Bench he may sit, but the Court gives the Judgment. And it is commonly said in our Books, that the King is alwayes present in Court in the Judgement of Law; and upon this he cannot be non-suit:4 But the Judgements are alwayes given Per Curiam; and the Judges are sworn to execute Justice according to Law and custome of England. And it appeares by the Act of Parliament, of 2 Ed. 3. cap. 9.5 2. Ed. 3. cap. 1.6 That neither by the great Seale, nor by the little Seale, Justice shall be delayed; ergo, the King cannot take any cause out of any of his Courts, and give Judgment upon it himselfe, but in his owne cause he may stay it, as it doth appeare, H.4.8.7 And the Judges informed the King, that no King after the conquest assumed to himselfe to give any Judgment in any cause Edition: current; Page: [16] whatsoever, which concerned the administration of Justice within this Realme, but these were solely determined in the Courts of Justice.8 And the King cannot arrest any man, as the Book is in 1 H.7.4.9 for the party cannot have remedy against the King, so if the King give any Judgment, what remedy can the party have, vide 39 Ed. 3.14.10 One who had a Judgment reversed before the Councill of State: it was held utterly void, for that it was not a place where Judgment may be reversed, vide 1.H.7.4 Hussey chiefe Justice,11 who was Attorney to Ed. 4. reports, that Sir John Markham chief Justice said to King Edward 4 That the King cannot arrest a man for suspition of Treason or Felony, as other of his Leiges may; for that if it be a wrong to the party grieved, he can have no remedy. And it was greatly marvelled that the Arch-bishop durst informe the King, that such absolute power and authority as is aforesaid, belonged to the King by the Word of God, vide 4.H.4.cap.2212 which being translated into Latine, the effect is, Judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore quousq; per judicium Curiae Regis tanquam erroneum, Edition: current; Page: [17] &c. vide West, 2 cap. 5.13 vide le Stat. de Marbridge. cap 1.14 Provisum est, concordatum, & concessum, quod tam majores quam minores justitiam habeant & recipiant in Curia Domini Regis, & vide le Stat. de Mag. Charta. cap. 29.,15 25 Ed. 3. cap. 5.16 None may be taken by petition or suggestion made to our Lord the King or his Councill, unless by Judgement. And 43 Ed. 3. cap. 3.17 no man shall be put to answer without presentment before the Justices, matter of Record, or by due Processe, or by Writ Originall, according to the Ancient Law of the Land: And if anything be done against it, it shall be void in Law and held for Error, vide 28 Ed. 3. cap. 3.,18 37 Ed. 3. cap. 18.,19 Edition: current; Page: [18] vide 17 R. 2. ex rotulis Parliamenti in Turri act 10.20 A controversie of Land between parties was heard by the King, and sentence given, which was repealed, for this, that it did belong to the common Law. Then the King said, that he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science and great endowments of nature, but his Majesty was not learned in the Lawes of his Realm of England, and causes which concerne the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason, but by the artificiall reason and judgment of Law, which Law is an art which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the golden met-wand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace: With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo & Lege.21

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Sovereignty in the King Alone

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William Goodwin, A Sermon

William Goodwin, d. 1610

A

SERMON

PREACHED BEFORE

THE KINGS MOST EXCELLENT MAIESTIE At Woodstocke, Avg. 28. 1614.

BY

William Goodwin, Deane of Christ’s Church and Vice-Chancellor of the Vniversity of Oxon.

Published by Commandement.

AT OXFORD,

Printed by Joseph Barnes. 1614

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William Goodwin delivered the sermon published here in his capacity as chaplain to James I toward the end of his long and successful career in the Church of England. Goodwin had held a variety of benefices in Yorkshire and London before arriving in Oxfordshire. In 1611 he was made dean of Christ Church college in Oxford and in 1614, when he preached this sermon before the king at Woodstock, he had just been made vice chancellor of Oxford University.

Goodwin’s sermon contains the emphasis, usual for the time, upon the independence of the English king from the power of the pope. However, Goodwin goes on to stress that the king was also exempt from the power of the law. Dutiful subjects, he assured worshippers, Edition: current; Page: [23] were bound to obey the king even if he became a tyrant. These teachings obviously pleased James who ordered the sermon to be published. On the other hand, it was bound to irritate many politically active gentlemen. Only four years before, Parliament had been so incensed by the absolutist opinions expressed by John Cowell in The Interpreter, a law dictionary, that it took the unusual step of censuring the book. At that time James had prudently rescinded approval for the book’s publication. His command that Goodwin’s sermon be published would suggest that James’s action in Cowell’s case was only a strategic retreat, but that he was quite prepared to broadcast notions similar to Cowell’s when opportunity presented itself. This sermon appears to be Goodwin’s only publication and appeared in only one edition.

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jeremie 1. 10

See! I have this day set thee up, over Nations & Kingdomes, to plucke up, to roote out, to destroy, to overthrow, to build, and to plant.

It is not my purpose to extoll the Dignity, or discourse of the Duety of a Prophet, in the presence of a King. The wordes of my Text, I confesse, naturally exact it; yet may it seeme unseasonable, in this Royall Presence, in this place, especially in these times. Miserable, & wretched times! in which the chiefe and principall, the essentiall and fundamentall points of Religion, and Christianity, which should breed Peace in our Consciences, and bring Salvation to our Soules, are almost growne harsh and out of fashion, stale, and out of request. Looke into the many Bookes and volumes, which in these later yeares, have proceeded from our English Fugitives, and Romish adversaries; in some, you shall finde the Name of Christ seldome mentioned; in many, no one point of Religion handled; in most, if any be handled, it is but obiter, and in transitu,1 by the way, and superficially, to farce and stuffe out the volume; the maine scope, & drift of all, hath beene, to advance the Miter above the Crowne, and to erect the Monster of the more than Transcendent Superioritie of the Sea and Church of Rome. Insomuch that we are now forced to spend our times & studies, our paines and watchings, our Books and writings, our discourses and preachings, yea our very Spirits and Lives, in upholding the Thrones, in sustaining the Scepters, in setling the Crownes, nay in vindicating the Lives, the Estates, and Dignities of Sacred and Anointed Kings, from the unjust and bloody Assasinations of Romish and Antichristian Tyranny.2

Our chiefe, nay our only Religion, in these days consists not in the Faith of that one only Christ, that one only deare & beloved Sonne of Edition: current; Page: [25] that Living God: but in a servile and slavish Submission and Prostitution to the Sea, and Pope of Rome. You knowe whose resolution it is, Quicquid profiteatur, Catholicus non est, qui est, à Romani Pontificis obedientiâ, alienus.3 Professe what you will professe, understand the Scriptures never so exactly, imbrace the Gospell never so sincerely, beleeve all the Articles of Faith never so stedfastly, professe the Truth never so constantly, practice the workes of Charitie never so devoutly, suffer, & shed your Blood, & lay downe your Lives for Christ never so patiently; I adde, Invocate all the Saints in Heaven, adore the Fleshly Body of Christ in the Sacrament, mutter your Confession, performe your Penance, buy your Absolution, purchase Pardons, & Indulgences; All this, and more, is not sufficient, to constitute a Catholike. One thing remaines, you must cast down your Crownes at the Feet of that Man of sin, you must leave your Kingdomes to bee disposed, at his pleasure; otherwise you have no part in the true Church, you can expect no portion in God’s kingdome. If he Thunder, the Earth must Shake, the Foundations of the world must be moved, the Thrones of Kings must totter, their scepters must fall out of their hands, their Crownes must be torne from their Heads, All must be cast at his Feet. If you demand (Quo warranto?) by what warrant, and Commission, He claimes it? The words of my Text, See! this day have I set thee up, &c. they are his warrant, they are his Commission. A weake warrant, of so unjust usurpation! as I trust I shall make manifest, if first you will give mee leave briefly to unfold the words themselves.

The words in their proper and naturall, in their literall & Principall sense, are appropriated to Christ Jesus, the Prince of Prophets, who hath Excellentiam Potestatis. Personally they are directed to Jeremy; who was Propheta constitutus, antequàm natus, ordained a Prophet of God, before he was borne, the Sonne of Man. In a subordinate, and Edition: current; Page: [26] qualified sense, they may be applied to all the Prophets, all the Apostles, all the Ministers of the Gospell; who have delegatam Potestatem. All Similiter, but not Aequaliter, with like, but not with equall power, being set over Nations and Kingdomes, &c. Christ, in that high Preeminence, and superexcellency of all power, which was given him of his Father, both in Heaven and in Earth: Jeremy, by extraordinary calling and vocation from Heaven: the rest, by subordinate and delegate Commission, being sent of Christ, as He was sent of his Father, & having the word of Reconciliation committed unto them.

In the wordes I observe, first, their Commission; I have set thee up. Secondly, the Extent, and latitude of their jurisdiction; above Nations, above Kingdomes. Thirdly, their Worke; and that is twofold, ad Destructionem: ad Aedificationem, to plucke up, to root out, &c. to plant, and to build. In other things, Facilius est destruere, quàm astruere; yet where Sinne is the subject wee worke upon, it is so incorporate into the nature of man, that it is farre greater difficultie, to pluck up, and root out, than to plant; and to destroy, & overthrow, than to build. Therefore the Spirit of God mentioneth quatuor Tristia: duo Laeta; foure Destroying, but only two Edifying Metaphors. Lastly, I observe, that the true and only End of plucking up, and rooting out, is planting; the End of overthrowing, and destroying, is Building.

The Commission is Authenticall, rooted in Heaven and grounded upon God’s Ordination. The Extent & latitude, is large and ample: no Estate, no Dignitie, no Throne, no Crowne, no Scepter, no Diadem exempt from it. The worke is powerfull on both sides. I had almost said Omnipotent; for, Habet quandam Omnipotentiam, non ex Spiritu nostro, sed ex Spiritu, qui est in Spirita nostro; The word of God, in the mouth of his basest servants, hath in it a kinde of Omnipotencie, not by any vertue that is in them, but by the power of that Spirit that worketh in them. The End is full of Grace, and of Favour.

First, I meet with a note of observation, set (as it were) in the very Front, and Forehead of my Text, [Vide] [See] to this end, that, Qui Edition: current; Page: [27] Manus ad Clavum, & Oculos, ad Caelum, He which sits at the Sterne, either of Civil, or Ecclesiasticall governement, whether He sit on the Throne, or in the Chaire, His eye must ever be fixed in Heaven, upon the Pole by which his course must be guided, & conducted. For both in Kingdome, and in Church, Christus in Imo, Christus in Summo; Christ is the roote, Christ is the roofe; Christ is the beginning, Christ is the ending, Christ is Α, Christ is Θ; Christ is the foundation, Christ is the perfection of all. The Prosperitie, & Peace, the Abundance and Wealth, the Honour and Dignitie, the Stabilitie and Perpetuitie of all, stands upon his Favour, and is upheld by his Blessing. It is He, that must blesse us here, it is He that must crowne us hereafter. [See] we enjoy the Blessing, let Him have the Glory. From Him we have our Constitution and Commission, Ego constitui, I have set thee up: otherwise, Τίς πρὸς ταῦτα ἵκανος; who is sufficient for these things? What are our earthen vessels, to hold that inestimable and heavenly Treasure? What our uncleane Hands, to breake, and distribute that heavenly Manna? What our leaden and drossy pipes, to receave, or convey that water of life? Τίς πρὸς ταῦτα ἵκανος; Who is sufficient for these things? No man takes this Honour to himselfe, but he which is called of God, as was Aaron? The excellencie of this power it is not of Men, but it is of God.

Before I formed thee in the wombe, I knew thee, before thou camest out the wombe, I sanctified thee; there is Electio ad salutem: I have ordained thee to be a Prophet, and See! this day I have set thee up, &c. there is Electio ad Munus; chosen to salvation before eternity, called to the Office of a Prophet this Day. These do not always concurre in one subject; but where they meet, a thousand thousand Blessings accompany that constitution, & a thousand thousand times blessed is he, that is chosen of God both to save himselfe, and to save others.

Dei Agricultura estis, Dei Aedificium estis; you are God’s husbandry, you are God’s building. Ager, Mundus: Aedificium, Fideles; the world is his Field, the Faithfull are his Building. Ager non est Agricolae, sed Edition: current; Page: [28] Patris familiûs, Aedificium non est Architecti, sed Domini: the field is not the Husbandman’s but the owner’s, the building is not the workeman’s, but the Lord’s. In this Husbandry there is not a fit labourer, that is not sent of God into his Harvest, Mat. 9. In this Building there is not a meete workeman, which is not inspired from Heaven, as was Aholiah and Bezaleel, Exod. 31. He which buildes and he which plants, hee which plucks up, and hee which rootes out is nothing, but Hee which gives the Blessing and encrease, Hee is all in all. Rusticani Sudoris Schemate quodam, labor spiritualis expressus est; The worke of a Prophet is illustrated by resemblance with the toile of an Husbandman, and the whole comparison is meerely Tropicall, Figurative, & Metaphoricall. Nulla est excusatio carnaliter interpretanti, in huius modi loquutionibus Tropicis: It is an absurditie beyond absurditie, to make literall interpretation of Figurative and Metaphoricall Speeches. Nay it is an Impietie beyond Impietie, to change the elegant resemblances, which the Spirit of God useth in the Scripture, to Actuall and Reall, and bloody Executions of unjust and usurped Tyranny. Certainely God never sent forth his Prophets, as Incendiaries, & Assasinates, with Fire and Sword, with Poison & Gunpowder, to pluck up, to root out, to destroy, to overthrow. He sent them that the world might be saved, but not ruinated by them.

The rule is generall, Quicquid in Scripturis Sacris asperum, savǔ, crudele sonat, & commendatur à Sanctis faĉtum, aut inbetur ut facient, non ad literă, sed ad cupiditatis Regnum, & vincendos anime Hostes intelligitur esse scriptum. Whatsoever in the Scriptures is commanded or commended in the Saints, and favoreth of violence, asperitie, crueltie, it is not Literally, but Figuratively to be understood and executed.

If you demand, Qui Vectes? quae Ferramenta? with what tooles, and with what Engins He performes so glorious a worke? They are set in the words next before my Text, Behold, I have put my word in thy mouth; a word sharper than a two-edged Sword, which enters and divides, Edition: current; Page: [29] and woundes, and kills; but, Culpas non Homines; it kills Sinne, but it saves men. To this worke he hath set apart Esay, and Jeremy, not Zenacherib, not Nabuchadnezar, not Antiochia; Peter & Paule, not Herod and Nero; Augustine, Ambrose, & the Holy Fathers, not Domitian, and Julian, bloody Emperors; Luther, Calvin, & many worthies in his Church, not Hildebrand, Julius, Boniface, Pius, Sixtus, & the rest of that rabble. Those pluckt up, & rooted out Gladiouris, with the Sword of their Lippes; these destroy, overthrow, murder, massacre, Ore Gladii, with the dint and edge of the Sword. Thus, Imperiale fit Papale, Spirituale fit Temporale; the Imperiall right is made Papall, and the Spirituall Ministery is changed into open & professed Tyranny. But Quis constituit? whence have they their Ordination? from whom can they challenge their Commission?

They are set up, Super Nationes & Regna, above Nations, above Kingdomes. An ample & a large Jurisdiction! but Ministerium impositum est, non Dominum datum; I see a dutie and a charge laid upon us, which we must exercise, I see no Soveraigntie, no Dominion given unto us that we should execute. Qui ad Episcopatum vocatur, ad Servitutem vocatur, non ad Dominium Ecclesiae; he that is called to the office of a Prophet, is called to serve, and minister, not to rule and domineere in the Church. I read, that their Sound, I find not, that their Sword, should go through the world. It is true, there is no Privilege, there is no Exemption, there is no Throne, there is no Crowne, there is no Scepter, there is no Diadem, that is not subject to this glorious Ministration. Wee may not feare the faces of mortall men. Saule must heare of his witchcrafts, David of his adultery, Ahab of Naboth’s vineyard, Herod of his brother Philip’s wife; Israel must heare of her Sinnes, Judah of her Transgressions, Samaria of her Idolatries, Jerusalem of her Abominations. And where we could beare rule, and domineere, and offer force, and use violence, and beat downe sin, and cry out against iniquitie, till their eares tingle, & their Hearts tremble in the midst of their Bowels, we doe nothing but our duties. For Edition: current; Page: [30] this cause are wee set over Nations, over Kingdomes. Herein is our true honour, herein our true Preeminence. Which hath caused the ancient and holy Fathers so often to extoll the dignitie of their Ministery, and sometimes, not to compare only, but to preferre it before and above the highest earthly Soveraigntie. Imperium ipsi quoque gerimus, addo etiam praestantius ac perfectius; vos enim, potestati mea meisque subselliis Lex Christi Subiecit:4 spoken in the presence, and to the person of an Emperour. We also have our authoritie, & that more perfect, and more glorious than your Soveraigntie; for even your majestie hath the law of Christ subjected to our Pulpit. It is to our Pulpit, not to our Tribunal; where wee may reprove, not chastise, reprehend, not punish, depresse, not depose: to us your Soules, to you our Bodies are committed; into our Handes the Keyes, into your Handes the Sworde is delivered; wee must denounce, you must execute, God’s Judgements; wee can shut out of Heaven, you may root out of the earth. God hath set his servants over Nations, & Kingdomes, as He set Jonas over Niniveh, ut eversi in malo aedificarentur in Bono; that their sinnes might be pluckt up, & rooted out, their estate established, the sentence denounced against them reversed, their Ruine & Destruction prevented, their Pardon and Peace procured. God hath not set them, as he set Salmanazar, Zenacherib, Nabuchadnezar, over Israel and Judah, as his whips and scourges, or rather as his Sword & Executioners; ut Aedificati in malo e, verterentur in toto, that when their sinnes were ripe, they should draw the line of emptinesse over them, and chaine their Kings, and fetter their Nobles, and ruinate their estates, and dispose of their kingdomes. We may, nay we must, denounce God’s judgements, but the sword, which must execute them, Hee hath put into another’s Hand. If our Saviour demaunde Quis me Judicem? Who hath made me a Judge over you? and would not end a Controversie, that was brought unto Him: may not Edition: current; Page: [31] we lawfully aske, Quis vos Principes? who hath made you Princes? nay more than Princes? to dispose of the estates, of all, yea Lawfull, Anointed, and Soveraigne Princes?

Their work is to pluck up and to root out, to destroy, to overthrow. True! but, Disce sarculo opus esse, non sceptro, ut facias opus Prophetae: See, a Sheepehooke, not a Scepter, a weeding hooke, not a Sword, is the Instrument that fits the Hand, and agrees with the worke of a Prophet. Cum audis Regna & Nationes, noli Carnaliter intelligere, sed cogita Animas Regnatas à Peccato; delicta, cogita, quae evellenda & suffodienda, à sermonibus Dei: When you heare of Nations and of Kingdomes, and of plucking up and rooting out, dreame not of earthly kingdoms; but remember, Satan hath a kingdome within you, and sinne hath gotten Dominion over you; follow, pursue, kill, mortifie these enimies, pluck up, root out, destroy, overthrow this Kingdome. This is a true Prophetical, Evangelicall work, which cannot be destitute, either of a Blessing here, or a reward hereafter. There was a time, wherein God promised, and in his due time Hee performed it; Men shall turne their swordes into scythes, and their Speares into Mattockes, and there shall none hurt nor destroy in all the mountaine of my Holynesse. There was never time wherein Satan practised it not, in these our times hee hath effected it; men have turned their scythes into Swords, & their Mattockes into Speares, and with Julius the second, their Miters, into Helmets, and the Keyes of Peter, into the Sword of Paule. There is now nothing, but Blood & Slaughter, but Stabbings and Poisonings, and fire, and Gunpowder, but Deposing & Ruinating. And ubique Religio praetenditur, ubi omnia, & Humana et Divina violantur, and when all the Lawes both of God and Man are violated, Religion Must cover all, & the Censure of the Church must warrant all. We have seene with our Eyes, the most woful and disastrous effects and fruits of this Doctrine the sunne ever looked upon. You cannot but remember them, I take no pleasure to repeate them. God hath set Bounds and limits, unto all Authority; the Authority Edition: current; Page: [32] of the Church is confined, to the Courts of Conscience, not extended, to the Courtes of Justice. The worke of a Prophet is appropriated to the rooting out of sin, not improved to the ruinating of Kingdomes. And this is the end and perfection of all, so to plucke up and roote out, that we plant, so to destroy & overthrow, that we build.

This is indeed the Proper and Naturall worke of God’s Ministers, to plucke up, and to roote out, is Accidentall and forced upon them, to plant and to build, is Essentiall to their Office, & affected by them. That is their Hope, and their Joy and their Crowne of rejoicing, in the Day of the Lord Jesus. Suprema lex salus Ecclesiae; The fundamentall Law of the Church and the most glorious worke of the sacred Ministery never reached to the Bodies, or Goods, or Lives of Men, but ever was accomplished in the salvation of the soules of men. It is the observation of Chrysostom, Saepè solet Scriptura uti verbis malis in re bona; the spirit of God in the Scriptures, often useth sharpe, displeasing, and destructive phrases, where yet it intends to produce Blessed, Gracious, and vital effects. Ignis, Gladius, verba mala sunt; Fire, Sword, are words cloathed with Terror, and usually Instruments of Death. But the Fire that came downe from Heaven, & sate on the apostles, illuminat, non incendit, enlightens, scortches not, inflames, burnes not, purges, but consumes not. The sword, which God hath put into the Hands, into the Mouthes rather, of his Prophets, vomicam incidere potest, may launce and open the impostumation, which hath beene long breeding in us, cuts, but hurts not, heales, but endangers not. God authorizing his servants to wound, but for that they might heale againe, to kill, but for that they might quicken againe, to plucke up and roote out, but so that they might plant againe, to destroy, and overthrow, but so that they might build againe.

Of the plucking up and rooting out of our Adversaries the world hath had long and wofull experience, the Turks, and Infidels have made their advantage, the Church hath felt the smart, and all Christendome Edition: current; Page: [33] to this day groanes under the weight & burden of it. If you seeke for their Plantings and Buildings, you must saile to the Indies, and search into remote, barbarous, and unknowne Lands; it may be in the passage you may heare, of fruitfull Plantations & of glorious Buildings, and of strange Miracles, and of wonderfull conversions; but in the end, you shall find, and see, their Plantations have beene watered with Blood, the Foundations of their Buildings laid in Blood, in the Blood of innumerable thousands, of poore and naked Innocents; themselves being witnesses against themselves, and their owne Jesuites deploring and detesting their more than inhumane & Devillish Cruelty.

Thus have I posted over the words of my Text, that you may perceive we detract nothing from the authoritie of a Prophet. His constitution is from God. We exempt no man from their lawfull jurisdiction; they are Set up, Super Nationes, Super Regna, above Nations, above Kingdomes. Wee acknowledge their worke powerfull, to plucke up, root out, &c. but, In Criminibus, non in possessionibus Potestas ista, this power is excercised in extirpation of sinnes, not in extermination of Kingdomes; &, Linguâ, non Manu, Ore, non Gladio, Precibus, non Armis; It must be executed with our Tongues, not with our Hands, with our Words, not with our Swordes, with our Prayers, not with our weapons. Lastly, we yeeld double, and treble honour to those, which so roote out, that still they may plant, which so destroy, that yet they may still build up.

O how easily, & how amply could I here discourse of the Kingdome of Christ Jesus! of his many victories, and his glorious Triumphs! all achieved, Non aliis Armis quam clangente Evangelii Buccinâ, sonante Apostolorum Doctrinâ, with no other weapons, but by the sound of his Gospell, and the foolishnesse of the preaching of his Apostles. Thus, thus hath it pleased him to raze downe the walls of Jericho! Thus, thus hath hee built up the walls of his Beloved Edition: current; Page: [34] Jerusalem! Thus hath he planted his faith, overcome the world, subdued Nations, conquered Kingdomes, and spread his Dominion from Sea to Sea, and from the River unto the ends of the world!

If I have but touched, where I should have enlarged, and have digressed from the Observations my Text naturally affordeth; that which the Apostle useth as his just Apologie, Vos coegistis, you have enforced me; I trust with your Favours it may bee accepted as a faire excuse, Illi coegerunt, our Adversaries have compelled me. For it is not easie, nay it is impossible, for a true man, always to keep the King’s highway, especially if he be driven to follow Hue and Cry after Theeves and Murderers. I am now in this pursuit; I find God to be dishonoured, his Scriptures adulterated, the peace of his Church disturbed, the soules of men bewitched, our estate endangered, tyranny usurped: if I cannot yeeld remedy, I cannot but give warning. It is not now a question disputed, but a case resolved, if the Prince fall from God, the people must fall from him, they may, nay they must resist & take Armes; Principes iam inauguratos & consecratos Regnique potitos deturbare possunt, imò debent & tenentur facire, si vires suppetant, idque in extremo animarum periculo, ac discrimine. And if these resolutions bee growne into practises & executions, so that we cannot live amongst these men without danger, surely they should not live amongst us in such jollity, in such security. Caput iniquitatis tenet ista iniquitas; this is an abomination above all abominations. Religion must cover all and these very words of my Text must warrant all! By this and such like, Catholike men are warranted, that they be no Traitors, nor hold positions treasonable, false and undutiful, in answering, or beleeving that for heresie, and such like notorious wickedness, a Prince otherwise lawfull and anointed, may be excommunicated, forsaken, resisted, by warrant of holie Churches’judgment, and censure.

I omit the writings of private men, though their bookes are full of it; I find it in their Lawes, in their Bulls, in their Publike & authenticall Instruments, the monster of their more than supreame Supremacy, Edition: current; Page: [35] all their unheard-of usurpation, and tyranny over Princes, Kingdomes, the estate and lives of lawfull and annointed Kings, grounded upon this Tropicall, Figurative, and Metaphoricall foundation! See, I have this day set thee up, &c. In their well known and often mentioned Canon, Unam sanctam; Ecclesiastica potestas Terrenam habet instituere, & Judicare: sic verificatur Vaticinium Hieremiae; Ecce, ego constitui. In the Bull of Paulus tertius against Henry the 8. Praecipuum super omnes Reges universae Terrae, cunctosque populos, obtinentes Principatum, juxta Hieremiae vaticiniū, Ecce ego constitui te, &c. Regem Henricum Regno privamus, &c. Having obtained chiefe principality, over all the Kings of the whole earth, and over all nations, according to the prophecy of Jeremy, See, this day I have set thee up, &c. We depose King Henry of this kingdome, and him and all his favourers doe Wee smite with the sword of accursing, excommunication, & eternall damnation; his subjects we absolve from their Oath of Allegiance, and all subjection to their King, and besides we exhort and require them to take Armes, and in all hostile maner to pursue them. By the way it is not unworthy the observation; that in the next immediately following chapter there is Institutio & confirmatio Societatis nominis Jesu, that they might have new & pestilent instruments, to uphold their new challenge and prodigious Practise. In the Bull of Pius quintus, against Q. Elizabeth, of famous and ever blessed memory; Regnans in excelsis, unum Romanum Pontificem super omnes Gentes & omnia Regna Principem constituit, qui evellat, destruat, disperdat, dissipet, &c. He that raigneth in the highest Heavens, hath constituted the one only Pope of Rome, a Prince over all nations, and all kingdomes, to plucke up, to root out, &c. Armed by his authority, who hath placed us in this supreame Throne of Justice, we deprive Elizabeth of her pretended right to the Kingdome, and of all Soveraignty, Dignity, and Preeminence, and discharge her Nobles and Subjects from their oath of Allegiance, and obedience due unto Her.

Heare you not the Beast in the Revelation, Loquentem magnalia, speaking great things, and uttering Blasphemies against God, and Edition: current; Page: [36] against Heaven? challenging power over Kindreds, and Tongues, and Nations? Let them whose names are not written in the book of life worship him. The French have prooved that these are but Bruta Fulmina, Brutish Thunderbolts; the Venetians, that this is but Ignis fatuus, a false fire; God hath proved unto us, that they are Blessings, and not curses: for where they have cursed most, he hath blest most. Blessed be his name for ever, and for ever!

I cannot prosecute every particular; I would draw all unto an head, & yeeld unto the Church, whatsoever she may justly challenge, & suppose (that which they can never prove, wee may never grant) that all authority of this Church is in the See, and the Pope of Rome: yet can it never be stretched or tentered, to the discharging of subjects from their Allegeance, or deposing of Princes, from their Dignities. I will not deny, but that these words, to plucke up, to roote out, to build, and to plant, may bee parralell, to binding and loosing in the Gospell; and that by these and such like the Church may lawfully challenge Authority, yea over Nations and Kingdomes, to foretell, and threaten, and denounce God’s judgments. But God hath made a Distinction, betwixt the Sword and the Keyes, and hath set a separation betwixt the Prince, and the Priest. Insomuch that the Prince cannot snatch the Keyes, out of the hand of the Priest, without open sacriledge: the Priest may not wrest the sword, out of the hand of the Prince, without manifest impiety and unjust usurpation. Therefore my Conclusion is, that,

The sentence of Excommunication, (suppose) it bee justly deserved, suppose it be lawfully denounced, (which I suppose, but grant not), yet hath it not that Power and Effect, to discharge subjects of their Duety and Allegiance, or to depose Princes of their Estate and Dignities.

And here we must observe; first, that wee suppose Darknesse to be Light, and Falsehood to be Truth, and Usurpation to be Justice, and Tyranny to bee Equity; for all this, and much more than this, they Edition: current; Page: [37] must suppose, which suppose the Excommunications of the Pope, to be Just and Lawfull. Secondly, that I speake of Lawfull and Annointed Kings, I meddle not with Intruders and Usurpers. Thirdly, that wee deny not, but Princes by Heresie, by Idolatry, by Apostacy, by other Notorious Crimes, may deserve to be Censured: and in this case, we may & must tell them, that these Sinnes are Pernicious to their Soules, and Perillous to their Estates; yet is it God alone, and no man on the Earth, that can make them Forfeitures of their Kingdomes. Fourthly, that we exempt not Kings, from the just censure and reprehension of the Church. Wee honour the Courage and resolution of Ambrose, wee admire the moderation & submission of Theodosius: though we doubt whether we may imitate the one, or expect the other; but we abhor the partiality of the Pope, who will exempt himselfe, where he subjects Princes. Nauarrus enquires, Quis possit excommunicaris? and resolves, he must be Homo, Mortalis, Baptizatus, habens superiorem: and therefore amongest others, there are exempt, Locusta, Infidelis, Daemon, Papa; a Locust or noisome beast, hee is not Man; an Infidell he is not Baptized; the Devil, he is not mortal; the Pope, though an Heretique, He falls into the hands of God, he is not subject to any human Power. See how fitly he hath matched, & ranked his priviledged quaternion; I malice not their combination, I dispute not of their Exemption: but suppose all, and more than all, against which I can yet take infinite, and just exceptions, I still hold my Conclusion. My proofes I reduce to foure heads; 1. The Prerogative Royall of a King, 2. The Duty indispensable of a Subject; 3. The Continuall Practise of the Church; 4. The Nature, Effects, Limitations, and End of Excommunication.

The very name of a Lawfull and Anointed King is sacred, his Authoritie soveraigne, his Person inviolable. Major erit, quam cui possit Censura nocere. Everie Soule must be Subject unto Him, though he be an Evangelist, though an Apostle, though a Prophet, not Obedient only, but subject: yea and that Paul a blessed Apostle, to Nero a Monster Edition: current; Page: [38] of Men, and a bloody persecutor. No man may stir an Hand or a Foot without him: if he bid save, they save, if hee bid kill they kill, ipse solutus Legibus, himselfe exempted from his lawes, nor from the Direction, and Observance of them, but from the Punishment and penalty of them; ἁμαρτήσας οὔ κολάζεται.5 It is a speech, and an act worthiest an Emperour, to oblige and binde himselfe to his lawes: it is a speech & practice unfitting the authority of any earthly power to say, if hee transgresse I will chastice him. It was once the language of the Church. Wee adore the Emperour as a man, next unto God, and inferiour to none but him alone. It was once the stile of the Pope, Ego indignus Maiestatis vestra Famulus, I the unworthy servant of your Majestie. It was once & is still, the prerogative of a King, Nullis vocatur ad poenam Legibus; tutus imperii potestate: There is no Tribunall, to which he may be cited; no law by which he may be punished. He is secured by the preeminence of his Soveraignety. Who can lay his hand upon God’s annointed, and be innocent? Who can? No man, Because God hath planted him above all men, and hath given no man authority to punish Him; God alone will take vengeance on his sinnes. Therfore David, when Saul hunted after his innocent soul, as after a prey, yet could appeale neither to judge, nor to High Priest, but to God alone, let God be judge between thee and betweene me. David, when he confessed his sinne, forgot not his Preeminence; To thee, Thee only have I sinned. I have sinned; An ingenuous confession which obtained a gracious pardon; The Lord hath put away thy sin. To thee, a necessary exaggeration, no man sees, or truly sorrowes for the heinousnes of his sin, without a true apprehension of that glorious Majesty, which he hath offended in sinning. But To thee, Thee only; in his lowest submission to God, remembring his high Preeminence above men. I doubt not but David sinned against Bethsabee, and that a grievous and an uncleane sinne; against Uriah, and that a bloody, and a crying sinne, Edition: current; Page: [39] against the Child of adulterie, and that a deadly, and a killing sin, against his kingdome, & that a ruinating, and demolishing sin; against his owne soule, and that a fearefull and a pernicious sinne. In istos peccauit; Deo soli Peccauit: against all those he sinned, but To God only. They might complaine and Accuse and Testifie against him; but God alone, was to Judge, to Condemne, to Punish him; Tibi peccaui, longè aliud est quam in te Peccaui: we sinne against them whom wee wrong by sinning; wee sin to him, who can remit or punish, who can pardon or bee Revenged for our wrong, Rex erat, ita ut nullius subiacere Iudicio; he was a King, therefore To God only, he sinned before whose Tribunall only hee was to appeare, and from whose mouth only, hee was to receive his judgement.

What then? Do we exempt Kings from the observation of the Lawes of God? No, wee binde them rather with a double bond, Qua Reges, Qua homines; as they are Men, & have soules to be saved, as they are Kings, and have Thrones to be established. And herein are wee set over them, to plucke up and to roote out, to reprove, to correct, to proclaime to the terror of their soules, though not to the losse of their Kingdomes. Eò terribilius puniendi, quò possunt peccare liberius: the greater their Exemption here, the more fearefull their Judgement hereafter; the ampler their Priviledge here, the more intolerable their Plagues hereafter. They may escape the hands of Men: if they continue in their sinnes; they shall not escape the hands of God neither alive nor dead. But the Laws of God, of Nature, of Nations, of the Church, of free Monarchies, the Lawes Imperiall, all Priviledge and Exempt them; they cannot be deposed by the sentence, they may not bee deprived by the force of any Mortall Man. Therefore suppose in some causes they might be Excommunicated, which I yeeld not, in any; yet in no case hath Excommunication that force, to depose them. Reges sunt, They are Kings.

They are Kings, we are Subjects, bound in a bond, & obligation, which exceeds all other Bonds, & cancels all other obligations. A Son Edition: current; Page: [40] unto his Father, a Wife unto her husband, a Servant unto his Master, an Homager unto his Lord, an Inferiour to his Superiour, Nature, Sense, Reason, Humanitie, Christianitie, Divinitie binds them to Obedience, with a Bond which cannot bee broken: but the Bond of Allegiance to our King containes them all, exceeds them all. Is Hee not a Father, an Husband, a Master, a Lord, nay as God unto his subjects? Was not Moses, Aaron’s God, a God to the High Priest, and to the Father of the Priesthood. No warrant can I then find from Heaven; no dispensation upon the Earth, that can justifie, or excuse the least Disobedience. It may bee that a prince is injurious to his Subjects: Omnis illegitima defensio Filii adversus Patrem; Is he worthy the name of a Sonne, that will enter an action of Trespasse against his Father? It may be his yoke is heavy, and his loines burdenous; Ferendo & patiendo, lenienda Iniuria est; Patience, and toleration, is the best lenitive, and the readiest remedie. It may be he is irreligious and would draw others after him: Religio defendenda est moriendo, non occidendo, patientiâ, non Savitiâ, non scelere, sed Fide; Religion is to be maintained, by dying ourselves for it, not by murdering others for it, by patience, not by fury, by loyalty, not by rebellion. It may bee hee is a Tyrannt and bloody: but Inde Imperator, undè homo antequàm Imperator, inde potestas unde Spiritus, He made him a King, which made him a Man; and he receaved his authoritie from him, from whom he receaved his breath. Saviat, Laniet, Nubecula est, citò transibit. Let him rage, kill, Massacre, hee is but a storme, sent of God to chastise his children, expect but God’s leasure, he will soone vanish, and God will send a calme againe: as he speakes in Tacitus; Nŏ est nostrum aestimare quem supra ceteros, & quibus de causis extollas; nobis obsequis gloria relicta est. God sets up whom pleases him; our Vertue, our Dutie, our Glory consists in our Obedience, not for feare only, but for conscience, not [. . .], to our gratious Lords, but even [. . .], those whom hee hath set to be whippes & scourges over us. Are wee then bound Edition: current; Page: [41] to obey them in all things? and to say, as the Israelites did to Joshuah, All that thou commandest we will doe? No; for there may be a time, wherein wee must say rather with the Apostles; It is better to obey God, than to obey Men. And if there be an opposition between the will of God, and the commandement of the King then we must crave pardon; Da veniam Imperator, Tu Carcerem, Ille Gehennam. But in all cases, yea of profest Heresie, yea of open Idolatry, yea of manifest Apostasie, our tongues are bound, we may not speak evil of them; our very thoughts bound, we may not conspire against them; our hands bound, we may not so much as lift up our little finger against them. In all cases, Erubescit Ecclesia, Filios fieri Castigatores Parentum; The Church hath ever shamed to make the Sonnes correctors of their Parents: and Gladium dare, in manus Filii ad trucidandum Patrem, membri ad concidendum corpus, Nefas est, & insanura; to put a sword into the hand of a Sonne to kill his Father; of a member to wound his own head, or stab into his own heart, it is more than impietie, more than madnesse. The Sonne unto the Father, the Wife unto the Husband, the Servant unto his Master, the Monke unto his Abbot; the Priest unto his Bishop is bound to performe due and canonical obedience, notwithstanding any sentence of excommunication. Are all these bound, and may subjects be discharged? God hath directly commanded Obedience, and subjection; therefore no man directly or indirectly, absolutely or respectively, by temporal jurisdiction, or in Ordine ad Spiritualia, as a Pope, or as a Prince, can justifie the least disobedience, or warrant so much as a thought of rebellion: no dispensation can discharge the Subject, no sentence can depose a lawfull and an anointed King. God, which is the God of order, & not of confusion, foresaw in his wisdome, that it were better for the estates of Kingdomes, & lesse injurious to his Church, if the insolency of a wicked King, were sometimes tolerated without controll, than that the estate of his chiefe deputy, and Lieutenant upon the earth should be subjected to change and Edition: current; Page: [42] alteration, to deprivation, or deposing, at the pleasure and partialitie either of Priest, or of People. The one may be the cause of many disorders, the other must needes bee the Mother of perpetuall confusion.

In the Practice of the Church, wee have Confitentes Reos, the evidence and confession of our Adversaries. For they which confesse it was not done in the Primitive times, quia deerant vires Temporales; and that the Emperours Constantine, Valens, Julian, and others might have beene by the Bishops Excommunicated, and deposed, and all their people released from their obedience; if the Church or Catholikes, had had competent forces to have resisted. I say, they which yeeld reason why it was not done, evidently acknowledge it was not done.

Looke into the estate of the Jewes, and times of the Prophets; looke into the days of Christ, and of his Apostles; looke into the days of our Fathers, and Primitive times: you shall finde many open Idolaters; bloody Persecutors, backsliding Apostataes, many branded with the marke of Jeroboam, which sinned, & made Israel to sinne; yet not one dispossessed of his inheritance, or deprived from his kingdome.

There is a particle in my Text, to which, if to any our Adversaries may lay just claime, and that is Hodiè this Day: for their unjust challenge of Supremacie, and Domination over Princes, is Nupera, Novitia, Hodierna; it is New, it is Late, and in Comparison it is but a Day old. I am sure Ab Initio non fuit sic; from the beginning it was not so; nay long after the beginning it was not so. Primus Hildebrandus; Hildebrand6 was the first that ever practised it, and that Novello Schismate, making a new Rent betwixt the Church, and the Empire. Lego, relego, nusquam inuenio quenquam ante hunc Regno privatum, I read, and read againe, but I never find any in any age, before Henry the 4th, deposed from his estate and deprived of his Empire. Henry the first Patient, Hildebrand the first Agent; a man abhorred of all the Edition: current; Page: [43] world, renowned by Cardinall Allen, as a notable good man, and learned, who suffered whatsoever he did suffer for meere justice, in that he did Godly, Honourably, and by the Duety of his Pastorship whatsoever he did against the Emperour.

Now began the New, Popish, Antichristian world, to come to his Height before which time, there was never Flatterer so shamefull, as to yeeld, never Pope so impudently audacious as to challenge this transcendent Authority over Princes. Which enforced Abulensis to distinguish betwixt Kings of former, and Kings of later times; Non est simile de Regibus illis, et Regibus nostris, the Kings then, the Kings now are not alike; Rex tum praeerat sacerdotibus, & poterat Occidere, à fortiori privare Dignitatibus, & Officiis; the King was then above the Priest, and might take his Life from him, much more depose him from his Office and Dignity. But that was in the olde world; & Franciscus Romulus (quem Bellarminses benè & novit & amat whom Bellarmine both knows and loves); (Bellarmine7 himselfe being the Author of that Booke, as neere Kin to Him, as to Tortus) puts a difference betwixt the Popes, in Primitive times, and in our Dayes. They were fitted ad subeundum martyrium, these now made ad Coercendos Principes; They to suffer martyrdome, these to raise Rebellions; They taught Patience, these practise violence; They professed subjection, these move seditions; They quenched the blood of Tyrants with their Innocent Blood; the bloodthirstinesse of these cannot be swaged, but with the Sacred Blood of God’s Anointed. All this is [Hodie] This Day! Lamentable it is, that ever the sunne shined, or gave light unto this Day. Before Christ, & a thousand yeeres after Christ, Nec usut, nec exemplum, nec mentio, there was neither Practice, nor Precedent nor challenge, nor mention, of this Tyranny. The Possessions and Inheritance of Private men, the Edition: current; Page: [44] Crownes & Thrones of Princes, were then accounted of another Nature. They held them not of the Church, they could not be deprived of them by the Church. The Church could not bestow on her dearest Children by any Blessing; the Church could not then, therefore cannot now, deprive her greatest enimies of them by any Curse, Sentence, Censure, Excommunication. The Prophets never claimed it; our Savior never gave it; the Apostles never received it; the Holie Fathers never heard of it: shall we thinke them carelesse of their lawfull Authority? Nay rather, we conclude, that they, which challendge to be their Successors, are Usurpers of New, unheard of, and unjust Tyranny.

It is true that the sentence of Excommunication hath ever beene, and ever should be, accounted a fearefull and terrible sentence, a grievous and intolerable Punishment; by some called Virga ferrea, a Rod of Iron, by some Mucro Spiritualis a spiritual sword, by many Fulmen Ecclesiasticum, the Churche’s Thunderbolt; which shakes the Consciences, affrights the Spirits, dauntes the Hearts, & leaves behinde it a Terror in the Souls of Men. In the definition of their Greater Excommunication, which I finde in their Law, I finde these circumstances. 1. The Judge, and that is the Church, or some Authorized by the Church. 2. The Nature; it is a Censure Ecclesiasticall. 3. The Cause, Consumacy in some open notorious mortall sinne. 4. The Proceeding must be Canonicall; the Delinquents openly called, and have their just defence. 5. The Effect, separation from the Prayers, from the Sacraments, from the Society of the Faithfull. Lastly, the End, that he may be ashamed, being ashamed, he may convert, converting, repent, repenting, he may be saved. Here is all Spirituall, Judge, Nature, Cause, Proceeding, Effect, End, All Spirituall. Here is Exclusion from Spirituall Comforts; here is no violence to their Persons, no prejudice to their Estates. In Ecclesia Disciplina visibilis Gladius cessaturus; in the Discipline of the Church, there is no use of the visible and material sword: for we are set up, to watch over your soules, another beares the sword, Evaginandum nutu sacerdotis, to be unsheathed at the Becke of the Edition: current; Page: [45] Priest; as Bernard speakes, and Allen urges, but Nuta(i) Rogatü; Nondum mandant, Praelati Domino Regi, sed supplicant, sive Rogant; at the becke, that is at the Petition, of the Prelates; for in this Case the Prelates commaunde not our Lord the King, but they supplicate, and make Request unto him. It is the confession of their owne Law, it is the ground of their Significavit; Ecclesia non habet ultra, quod faciat, the Authority of the Church is ended, when the sentence of excommunication is pronounced. The Church can proceede no further, then, Tradatur Curiae seculari; Brachium seculare in vocandum; the Secular Power must bee implored; the Authority of the Prince must be assistant. It is true, that the Law alleadges: Mille exempla sunt, & Constitutiones, there are many Examples and Constitutions, wherein it is evident, that they which contain the censure of the Church, have beene Banished, Proscribed, Imprisoned, but per Publicas Potestates, by Publique, and Temporall Authority of Princes, per Potestates (i) Principes.

And here, as in handling all causes of this nature, we must distinguish betwixt the jurisdiction which the Church may claime by Commission from Christ, and that which the Church hath receaved by Donation, and Indulgence of Princes; betwixt that which appertaines to Excommunication properly, & in its owne nature, and the Penalties that have beene inflicted upon the contemners of that sentence, by the Laws and favour of the highest Magistrate. For hereof the Church of Rome makes no small advantage, when whatsoever shee hath receaved by the bountie of Princes, whatsoever she hath gained, by subtiltie, or by violence, by the keyes of Peter, or sword of Paul, she now claimes all, as due unto her, Jure Divino; & she bindes all, ex salute Animarum; as if she possessed all immediatly by God’s ordinance, which shee, by her inordinate pride, ambition, and tyranny hath usurped. I finde in the Schoole, that the nature of Excommunication is Purgativa respectu Ecclesiae, Purgative in respect of the Church, it purges here from impious and wicked men; Praeservativa respectu Edition: current; Page: [46] fidelium, preservative in respect of the members of the Church, who are by that meanes freed from danger of infection; Sanative respectu delinquentis, of an healing and curing qualitie to the delinquent: in no case doe I find that it is Privativa, or Destructiva, that it shakes the Thrones or endangers the Crownes of delinquent Princes.

The Effects of excommunication, which the Canonists gather out of the Scriptures, are these; Have no company with him, 2. Tim. 3. With such an one eate not, I. Cor. 5. Receave him not to house, neither bid him God speed, 2. Io. 10. Let him be delivered to Satan, I. Cor. 5. Let him be unto thee, as an Heathen, & a Publican, Mat. 18. In Summa Angelica, I finde 21 Effects specified, yet no Deposing, no Depriving our voluntary Company, but not our necessarie Dutie, our familiar Salutations, but not our publike subjection is forbidden. Some benefits belong unto us, as wee are Men, some as wee are Christians: conceive that a man is deprived of all those blessings, which Christianitie, Religion, Faith, Baptisme, the Church, the Word, the Prayers, the Societie of the Saints can bring unto him, yet his House, his Treasure, his Palace, his Crowne, his Estate, his Regalitie is still in safetie. Looke what hee gaines by his incorporation into the Church, what hee looses by his Excommunication out of the Church: but what by nature, by birthright, by just inheritance, by lawfull succession hath descended unto him, of that no Censure of the Church can deprive him. The Church cannot make him a King; once anointed of God, the Church cannot make him no King.

In the Law the rigor of these Effects is many ways qualified, and at least dispensed with, if not utterly extinguished. If our Commodity draw us, if the Law bind us, if our Estate & condition require it, if Ignorance privilege us, if Necessitie enforce us; Excommunication cannot discharge us: wee may eate, wee may company, we may converse, we must obey. The estate of a Subject hath all these dependances upon his Soveraigne, therefore no warrant for disobedience.

Per Excommunicationem Charitas non tollitur; By Excommunication Edition: current; Page: [47] Charity is not excluded: we may Activè and Passivè performe to him, or receave from him any worke of Charitie. Praeceptum Ecclesiae pro charitate institutum contra charitatem militare non potest; the commandement of the Church which consists in love may not warre against itselfe, and abandon Love. By excommunication, a man ceases not to be a man, neither doth hee loose his libertie; Hee retaines all abilitie, wherewith he is naturally furnished, and may doe all things which are agreeable to the Lawes of Nature, Lawes of Nations, Lawes Imperiall. If we may performe the workes of Charitie, wee must performe the duties of Obedience; if hee loose not his Liberty, certainely he looses not his Soveraigntie: if wee may doe what the Lawes of nature and men allow, wee must doe what the Lawes of God command; (that is) whosoever curse, we must blesse, & honour, and obey, and serve, and hazard goods, and venture Lives, and spend the last droppe of our dearest blood for the protection of our King, whom God hath set over us.

Lastly, Excommunicatio Medicinalis est non Mortalis, Disciplinans, non Eradicans; the End is to cure, not to kill, to correct, not to destroy. Non enim perdendos sed corrigendos curandosque suscepimus; whatsoever authority the Church hath receaved, it is for edification, it is not for destruction. If wee refuse their Society, it is that they may be ashamed: if we be forced to deliver them to Satan, it is that they may be saved in the day of the Lord Jesus. The weapons of our warfare are not carnall, yet are they mighty to cast downe everything that exalts itselfe against God. Bellum cum vitiis, non cū Hominibus; our warefare it is with sinne, it is not with men: and this is Bellum ἄσπονδον, a warre that admits no truce, no cessation. It is not enough to cut, or to lop here, but we must plucke up, and root out, & not leave a sprig, least it take roote and spring up againe: these children of Edom must bee dashed in peeces, these tares rooted out, and extirpated, the Kingdome, the Dominion of Satan utterly overthrowne, and ruinated, not a stone left on a stone, nor head, nor taile, nor stalke nor bud remaining. And Edition: current; Page: [48] this is Ministerium omni imperio gloriosius; a service more glorious than a Kingdome: Kings themselves never happy, but when they submit their Crownes to this Ministery. It is reported of a Turkish Emperour, when he saw a Christian murdered, because he would not deny his Faith, and turn Turke, with his owne hands he slew the malefactor, cast him out on a dunghill, & cryed out with indignation; Is this the way to spred the faith of Mahomet? Is it not a shame that should be perpetrated amongst Christians, which is abhorred and detested amongst Turkes and Infidels? Shall they not, through you, rise up in judgement, and condemn the murders, the massacres, the Assassinations of these days? Is this the way to promote the Gospell of Christ Jesus? It is the note of S. Austin, in fact is Prophetarum, intuere quomodò intelligenda sunt verba Prophetarum. Hee indeed applies them to another matter, but they have their truth, and use in this also. Will you understand the meaning of the words of the Prophets? try them by the deeds of the Prophets. Did Jeremie plucke up, or root out, did he destroy, or overthrow estate, Kingdom, Prince, or privat person? He lived & threatened their ruine, that he might have extirpated their sinne: hee lived, and saw their ruine, and therefore saw them rooted out by the sword of the enemy, because hee, and God’s Prophets could not prevaile to root out their iniquity. One example for all. Saul was excommunicated, not in Foro Fori, but in Foro Poli; not at the Tribunal of a mortall man, but by the doome and sentence of God himselfe. God did not only cast him out of his Church, and reprobate him out of the number of his elect; but in expresse termes hee rent his Kingdome from him, and gave it to another man. David was anointed King by the speciall command of God, and by the hand of God’s Prophet. In this case might David resist where God had rejected? Or might he depose him whom God had reprobated?

Nay even in this case, standing under the heavy sentence of divine excommunication, who can lay his hand upon God’s Annointed, and be Edition: current; Page: [49] innocent? When he had cut off but the lappe of his Garment, his heart smote him; The Lord keepe me, from doing that thing unto my Master, the Lord’s Anointed, to lay mine hand upon him, for He is the Anointed of the Lord. As the Lord liveth, either the Lord shall smite Him, or his Day shall come to Die, or He shall descend into Battaile and perish. The Lord keepe me from laying mine hand uppon the Lord’s Anointed. Propter unctionem & honoravit viuum, & vindicavit Mortuum. He was still His master, he was still the Lord’s Anointed, therefore hee still Honoured him living, and revenged him dead. In the hand of any earthly man, there may bee Clavis Errans;8 not so, in the hand of God. And is he still a King, whom God hath rejected? And is he no King, whom that man of sinne hath excommunicated? I collect all. The Prerogative of a lawfull and Annointed King, is Sacred, and Inviolable; The Duty of a Subject is a strong obligation, & indispensable. The practice of the Church hath ever been Obedience unto Blood, not Rebellion or trechery to effusion of blood; The nature of excommunication is spirituall, not temporall; the Effect, Losse of Heavenly comforts, not of earthly kingdomes. The Limitations allow, nay require and exact Fidelity, in Naturall subjects; the End is charitable; Repentance, & restitutio in integrum.9 Repentance is late, if once Murdered; Restitution impossible, if once deposed. Therefore,

Hath not the Sentence of Excommunication, suppose it be justly deserved: suppose it be lawfully denounced: I speake by supposition, not by concession: the force and Effect to discharge subjects of their Allegiance, or to depose Lawfull and Annointed Kings from their estate and Dignitie.

Why then should a Kingdome so long instructed, so well grounded in Religion, totter, & stagger, as it were affrighted, & amazed at the Edition: current; Page: [50] sound of this brutish and counterfeit thunderbolt? at the slashing of this Ignis fatuus?10 Why do they live amongst us, why say I, live? Viuunt & in Senatum veniunt.11 They live & flourish, & we lodge them in our bosomes; who hold it religion, nay merit, nay supererogation, & the speediest and the directest way to heaven, to passe through a Field and a Sea of Bloud, of Sacred and Innocent Bloud, to that Glorious, & undefiled Inheritance? What can you expect of them, but that they should be, not Prickes in your eyes, and Thornes in your Sides, as God spake and Israel experienced in the Cananites; but Swords in your sides, and Pistols in your bosomes, and Poison in your Cups, and Gunpowder in your Vaults? Parricida moritur, Parricidium vivit;12 some of the Traitours have their Reward, and are dead; but whilest there is a Devil in Hell, a Pope in Rome, Murders, Massacrings, Treasons, shall never die. I have one Comfort; I know Heaven is above Hell, God above Satan, and we live under his Protection, (I would we lived Religiously, in his feare!) whose eyes are ever open to descry their conspiracies, and his Hand ever Potent, to overthrow their Machinations. I never was, I never will be a perswader to the least Cruelty: only remember, there may be Crudelis misericordia, a mercy more cruell than cruelty itselfe. I resolve with Augustine, Savire nolomus, e dormire nolumus: I would not perswade to Cruelty, but I would gladly rowse you from Security; and with the same Father; Nec obtentu Diligentia sauiamus, nec nomine Patientiae torpescemus; I hate that Diligence that leades to Cruelty, I cannot endure that Patience, that endes in Stupidity.

But whilst I am pleading against their unjust Tyranny, I may not be altogether forgetfull of the performance of mine owne Duety. For, See! this Day, I am set up, above Nations, and above Kingdomes, &c. and a Necessity is laid upon me, & wo is unto me, if I labour not, to Edition: current; Page: [51] plucke up, to roote out, &c, that roote of bitterness, which hath beene the true cause of the plucking up & extirpation, the rooting out & extermination of all estates and Kingdomes that ever flowrished, and are come to ruine: I meane Irreligion and Impiety. It is a generall, and a true observation, Imperium & Religio pariter defecerunt;13 there never yet arose any storme, to the ruine, of any Estate and Kingdome, but it sensibly grew from those vapors, which ascended from backwardness, or coldness, from contempt or indifferencie in Religion. It is as true ubi Procella, ibi Peccatŭ; where there is a storme that endangereth the ship, surely Jonas is there, or the sinne of Jonas, or a worse than Jonas, or a more prodigious sinne than his sinne. I see many Executioners of God’s just Judgements, Fire, Sword, Pestilence, Famine. The Fire never consumed, but sinne blew the Coles, & inflamed it. The Sword, never prevailed, but Sinne set an Edge on it. Pestilence never infected, but Sinne spread the Contagion of it. God never sent cleanesse of Teeth, but sinne made the Heavens as Brasse, and the Earth as Iron, and the fields as the Heath, and the fat Pastures, as the Desert. God indeed is the Judge of all; but Sinne is the Cause of all.

And therefore, Qui vultis Deum Imperatori Propitium, estote, Religiosi in Deum; As many as beare good will to zion, and pray for the Peace and Prosperity of their Soveraigne, let them grow and encrease in Grace, in Faith, in Religion, in Piety, in Zeale, in Sanctitie, in the knowledge, and in the love of our Lord Jesus Christ; that God may be pleased, and we may be blessed. Plucke up, Roote out, Destroy, Overthrow, Irreligion, Neutrality, Superstition, Indifferencie, Sinne, Impiety. God will pluck up, & roote out your enimies, God will Build, and Plant, and Protect, & Establish, & Blesse, your Estate, your Soveraigne, your Peace, your Prosperity.

Even so Blesse us, Gracious Father, that wee may serve thee. Let thine and our enimies consume like a Snaile that melteth, and like Edition: current; Page: [52] the untimely fruit of a woman that never saw the sun. But let the King live, & Raigne, and let his Throne be established, and his Days be multiplied, his Posterity be Blessed, and let there not want one of this Royalle seede, to sit on the Throne of this Kingdome, untill the coming of Christ Jesus. And let the Heart of everyone wither in the middest of his Bowels, and let their Tongues cleave to the Roofes of their Mouthes forever, that without Aequivocation, heartily, and unfainedly, will not say, Amen.

finis.
Edition: current; Page: [53]

Roger Maynwaring, Religion and Alegiance

Roger Maynwaring, 1590-1653

RELIGION

AND

ALEGIANCE:

IN TWO SERMONS

Preached before the Kings

Maiestie:

The one on the fourth of Iuly, Anno 1627.

At Oatlands.

The other on the 29. of Iuly the same yeere,

At Alderton.

By Roger Maynwaring Doctor in Diuinitie, one of his Majesties Chaplaines in Ordinarie: and then, in his Month of Attendance.

By His Maiesties Speciall Command.

LONDON,

Printed by I. H. for Richard Badger.

1627.

Edition: current; Page: [54]

Roger Maynwaring was to become notorious for the extreme divine right opinions set forth in the two sermons that composed his sole, printed work. A year after receiving his doctoral degree from Oxford, Maynwaring was appointed chaplain in ordinary to Charles I. In this capacity, in July 1627, he preached two sermons before the king, one on 4 July on religion, the other on 29 July on allegiance. The first of these is reprinted here. In it Maynwaring argues that Englishmen are bound, on pain of damnation, to pay all taxes and loans demanded by the king regardless of whether Parliament had given its consent. A month later the two sermons were published, apparently at the command of the king but the order was later attributed to the influence of Archbishop Laud.

When Parliament met in 1628 outraged members of the House of Commons drew up formal charges against Maynwaring accusing him of meaning to destroy Parliament. They sentenced him to prison during the pleasure of the house, fined him £1,000, and suspended him from his offices for three years. Contrite and frightened, Maynwaring appeared before the Commons to plead repentance. He was sent to the Edition: current; Page: [55] Fleet prison for the duration of the Parliament. At the members’ insistence, Charles also issued a proclamation “for the calling in and suppressing” of the two offending sermons.

Charles did not hide his sympathy for Maynwaring and his divine right views however. A month after Maynwaring was sentenced the king presented the offender to the living of Stanford Rivers, Essex. During the 1630s further royal preferments were showered upon Maynwaring, culminating in 1635 with his consecration to the bishopric of St. David’s.

When the Short Parliament met in March 1640, despite the press of other business, angry members of the Lords, where Maynwaring was now entitled to sit, promptly took up the issue of this last appointment and succeeded in depriving him of his vote. New charges were prepared against him, this time for popish innovations. When the Long Parliament met, members imprisoned Maynwaring, removing all his preferments. He died in 1653.

The volume in which Maynwaring’s two sermons appeared was published in two editions in 1627 and reprinted in 1667 and 1709.

Edition: current; Page: [56]

The First Sermon, Preached before the Kings Majestie at Oatlands, on the fourth day of July, 1627.

ecclesiastes 8.2.

I counsell thee, to keepe the Kings commandement, and that in regard of the oath of God.

Unity is the foundation of all difference and Distinction; Distinction the mother of Multitude; Multitude and number inferre Relation; which is the knot and confederation of things different, by reason of some Respect they beare unto each other. These Relations and Respects challenge Duties correspondent; according as they stand in distance or deerenesse, afarre off, or neere conjoined.

Of all Relations, the first and most originall is that betweene the Creator, and the Creature; whereby that which is made depends upon the Maker thereof, both in Constitution and Preservation: for which, the Creature doth ever owe to the Creator, the actuall & perpetuall performance of that, which, to its Nature is most agreeable: which duty is called Naturall. And sometimes also is the Creature bound to submit in those things, that are quite and cleane against the naturall, both inclination, and operation thereof; if the Creator’s pleasure be so to command it: which dutifull submission is called by the Divines, an Obedientiall capacity, in that which is made, by all meanes to doe homage to him that made it of meere nothing.

The next, is that betweene Husband and Spouse; a respect, which even Ethnick Antiquity called and accounted Sacred: the foule violation of which sacred Bed and bond of Matrimony, was ever counted hainous; and justly recompenced with that wound and dishonour, that could never bee blotted out.

Upon this, followed that third bond of reference which is betweene Parents, and Children; where, if dutifull obedience be not performed by them that received, to them that gave their being; the malediction is Edition: current; Page: [57] no lesse than this, that their light shall be put out in obscure darkenesse, the Ravens of the valleyes to picke out their eyes, and the young Eagles to eate them up.

In the fourth place, did likewise accrew that necessary dependance of the Servant on his Lord; God having so ordained, that the eyes of Servants should looke unto the hand of their Masters; and the eyes of the Hand-maid, unto the hand of her Mistresse.

From all which forenamed Respects, there did arise that most high, sacred, and transcendent Relation, which naturally growes betweene The Lord’s Anointed, and their loyall Subjects: to, and over whom, their lawfull Soveraignes are no lesse than Fathers, Lords, Kings, and Gods on earth.

Now, as the Duties comporting with all these severall Relations, if they shall be answerably done, are the cause of all the prosperity, happinesse, and felicity which doth befall them in their severall stations: so is it, in the world, the only cause of all tranquillity, peace, and order; and those things, which distinction, number, and disparitie of Condition have made Different, it most effectually reduceth to Union: that, as of One there arose many, so, by this means, doe Multitudes become to bee made One againe. Which happy Reunion, Nature doth by all meanes much affect: but the effecting thereof is the maine and most gratious worke of Religion. Which the wisdome of Salomon well seeing, and the Spirit that was in him well searching into, hee sends forth the sententious dictates of his divine and Royall wisdome, fenced with no lesse reason, than the fortresse of Religion; in these words following: I counsel thee, to keepe the King’s commandement, and that in regard of the oath of God.

This is God’s Text, and the King’s: and for the sake of all Kings was it written. And as the King is the sacred & supreme Head of two Bodies, the one Spirituall, the other Secular: so, this high and royall Text containes in it two parts correspondent: The one Civill, which is a Counsell of State, or a politique caution; I counsell thee to keepe the Edition: current; Page: [58] King’s commandement: the other Spirituall, which is a devout or religious reason; And that in regard of the oath of God. The First part is founded upon the Second; the Second is the ground of the First: Religion the stay of Politie; which, if it be truly taught, devoutly followed, & sincerely practiced, is the roote of all virtues; the foundation of all well-ordered Commonweales; and the well-head, from whence, all, even temporall felicity doth flow. The zeale, and fervor of which Religion, if at any time it fall into a wane or declination, contempt or derision, portends evermore, the Ruine and desolation of that State and Kingdome, where, the service and worship of him who sits in heaven, is set at naught: and fills the world with terrible examples of God’s revenging Justice, and most irefull indignation.

Now, in the first part, doe lie these particulars.

1. First, there is Rex, a King.

2. Secondly, Mandatum Regis, the Commandement of a King.

3. Then, Custodia Mandati, the Keeping of, and obedience to this Commandement.

4. After this, Consilium, Counsell to pursue, and practise this obedience.

And lastly, the Counsellor, who gives this most divine and Royall Counsell; which is no lesse than Salomon: who (as wee all know) was,

1. A King, and the Sonne of a King.

2. A King, and the wisest of all Kings.

3. A King, and a Preaching King.

4. A King, and a very Faire (if not the Fairest and clearest) Type of him, who was the King of Kings, and Lord of Lords.

To ingeminate againe, the parts of the Text: 1. Rex, a King: and what is higher (in heaven or earth) than a King? God only excepted, who is excelso excelsior: higher than the highest. 2. Mandatum Regis: and what is stronger than it? For ver. 4. Sermo eius potestate plenus. 3. Obedience to this Commandement: and what more rightfull, just, and equall with men? what with God more acceptable? 4. Counsell, to Edition: current; Page: [59] follow this: what more needfull, wise, or gratious? 5. And all this from such a Counsellor, than which, none ever greater, but he alone, of whom it was said, Ecce plus quàm Salomon, hîc: Behold, a greater than Salomon, is here.

A King: This is the Suppositum, or Person on whose behalfe this Counsell is given: and it is a Rule of that Science, whose Maximes are priviledged from errour; that, Actiones sunt suppositorum; Individualls challenge all activity as peculiar unto them. Now, all things that worke, and have any operation, must (of necessity) worke by some Power, or ability which is in them. All Power is either such as is Created, and derived from some higher Cause, or such, as is Uncreated, and Independent. Of this last kinde, is that Power which is in God alone; who is selfe-able in all things, and most puissant of himself, and from, and by no other. All Powers created are of God; no power, unlesse it bee given from above. And all powers, that are of this sort, are ordained of God. Among all the Powers that be ordained of God, the Regall is most high, strong and large: Kings above all, inferiour to none, to no man, to no multitudes of men, to no Angell, to no order of Angels. For though in Nature, Order, and Place, the Angels be superiour to men: yet, to Powers and persons Royall, they are not, in regard of any dependence that Princes have of them. Their Power then the highest. No Power, in the world, or in the Hierarchy of the Church, can lay restraint upon these supreames; therefore theirs the strongest. And the largest it is, for that no parts within their Dominions, no persons under their Jurisdictions (be they never so great) can be priviledged from their Power; nor bee exempted from their care, bee they never so meane. To this Power, the highest and greatest Peere must stoope, and cast downe his Coronet, at the footstoole of his Soveraigne. The poorest creature, which lieth by the wall, or goes by the highwayside, is not without sundry and sensible tokens of that sweet and Royall care, and providence; which extendeth itselfe to the lowest of his Subjects. The way, they passe by, is the King’s highway. Edition: current; Page: [60] The Lawes, which make provision for their reliefe, take their binding force from the Supreame will of their Liege-Lord. The bread, that feedes their hungry soules, the poore ragges, which hide their nakedness, all are the fruit and superfluity of that happie plenty and abundance caused by a wise and peaceable government. Whereas, if we should come to heare the dreadfull and confused noyse of warre, and to see those garments rolled in blood, if plough-shares should bee turned into swords, and sythes into speares; then Famine of bread, and cleanesse of teeth, and dearth of all good things, would bee the just and most deserved punishment, of all, both their, and our sinnes.

Now, to this high, large, and most constraining Power of Kings, not only Nature, but even God himselfe gives from heaven, most full and ample Testimonie: and that this Power is not meerely human, but Superhuman, and indeed no lesse than a Power Divine. Though Majesty (saith Herodotus) be shrouded under Mortality, yet is it endowed with such a Power from above, as beares no small resemblance with the Deity. For if it were of men, or if that Power which is dispersed in Communities and multitudes, were collected and settled in the King; then might this Power be thought human, and to rise from men. But, because God would have men to conceive quite otherwise of Regal Soveraignty; therefore himselfe pronounceth this of them, who weare Crownes on their heads, sit upon Thrones, and with Scepters in their hands rule Nations; I said yee are Gods.

That sublime Power therefore which resides in earthly Potentates, is not a Derivation, or Collection of human power scattered among many, and gathered into one head, but a participation of God’s owne Omnipotency, which hee never did communicate to any multitudes of men in the world, but, only, and immediately, to his owne Vicegerents. And, that is his meaning when he saith, By me Kings raigne; Kings they are, by my immediate constitution; and by me also, doe they Rule, and exercise their so high and large Authoritie.

This therefore may be well conceived to be the cause, wherefore Edition: current; Page: [61] God doth pleade in Scripture, and that so mainely, not only for the Soveraignty, but also for the Security of his Anointed; I said yee are Gods: and he saith it in no secret, but standing in Synagoga Deorum; for so the Psalme begins, as if he would have all the world take knowledge of what he said. Then, Per me Reges regnant. After that, Nolite tangere Christos meos. And lastly, Curse not the King; Ne detrahas Regi (sayes the Vulgar) Traduce not, detract not from the King. Put all together, 1. I said yee are Gods. 2. By me Kings raigne. 3. Touch not mine Anointed. 4. And speake not amisse of the King, no not in thy secret thought. And take we these sentences asunder againe, thus:

1. I said yee are Gods: there’s their sublime and independent Soveraigntie.

2. Per me Reges regnant: there’s their unresistable Authority.

3. Nolite tangere Christos meos: there’s their sacred and anointed Majestie, with the security of their royall State, and persons.

4. In cogitatione tuâ, Regi ne detrahas: speake not ill of the King, in thy thought: there’s the tendering, and preserving of their great and precious Names from obloquie; and the safety, and indemnity of their Royall fame and glorie.

To put then, an end to this first point: Royalty is an Honour, wherein, Kings are stated immediately from God. Fathers they are, & who gave Fathers Authority over their Families, but hee alone, from whom all the Fatherhood in heaven and earth is named? The power of Princes then, is both Naturall, and Divine, not from any consent or allowance of men. And hee that gaine-says this, transgreditur terminos quos posuêrunt Patres, saith Antonine. Not therefore, in any consent of Men, not in Grace, not in any Municipall Law, or Locall custome, not in any law Nationall, nor yet in the law of Nations, which, consent of men, and tract of time, hath made forcible; not finally, in the Pope, or any People is Regall preheminencie founded; for Adam had Dominion setled in him, before ever there was either Pope, or People. Neither Popes nor Populous Multitudes have any right to give, or take, Edition: current; Page: [62] in this case. So that Royalty is a Prehemencie wherein Monarches are invested, immediately from God; For by him doe they raigne. And likewise Sacred to God himselfe; For hee who toucheth them, toucheth the apple of God’s owne eye: and therefore, Touch not mine anointed.

Supreame also it is, and Independent upon any Man, Men, or Angels; and for this saith he; They are Gods: whose glorious and dreadfull Names, must not bee medled with by any wicked tongues, or pennes, nor mingled with any lewd perverse or depraving thoughts; and for this, Curse not the King in thy thought.

And yet notwithstanding this; they are to bee sustained, and supplied by the hands and helpes of men; for the King himselfe is served by the field; & Reddite quae Caesaris, Caesari: Render as due, not give as arbitrary, for, for this cause pay wee tribute, saith the great Apostle. God alone it is, who hath set Crownes on their heads, put scepters, yea and revenging swords into their hands, setled them in their thrones; for this, doe their Royalties render to God (as a due debt) that great Care, Paines, and Providence which they sustaine in the ruling over, and preserving of their people in wealth, peace, and godlinesse: and for this, doe the people render, as due, to them againe, by naturall and originall Justice, tribute, to whom tribute, custome, to whom custome appertaineth.

The second point was, Mandatum Regis; the Commandement of the King. Now, a Mandate or Commaund is a signification of his will, who hath power to send it forth. Five severall Intimations of the will are observed by the Divines. 1. Either, when a man doth undertake the transacting, and doing of anything himselfe, and that is cleere intimation of his will, by reason that all actions rise from the will: whose proper sway is, to set on worke all the power of the soule, and parts of the body. Or 2. when some Counsell is given for ought to be dispatched, by which the Will and Pleasure of him who gives the Counsell, is signified; and that which is counselled, is shewne possible to be done, and that, in reason, it ought not to be left undone. 3. The Edition: current; Page: [63] Permitting also of anything to be done, where there is power to hinder it, is a cleere intimation (at least), of a kinde of resolution, to have it done. But 4. the Resolute and Mandatory forbidding, Or 5. commanding of anything, is the most undoubted and expresse declaration of his will, who hath Power and Jurisdiction, so to derive his pleasure.

Now then, a Commandement is an act descending from three most eminent faculties of the human soule. First, from the Understanding, finding out by exact discourse, advice, and counsell, what is to be done, by which extensions of reason, the Intellectual part drawes to practise. Secondly, from the Judgement, decreeing and resolving what is the meetest to bee done, amongst many particulars. And lastly, from the Imperiall sway of the Will, which fastens a Command on all other powers, to doe their parts, for the dispatch of such designes, as Reason hath found out, and Judgement thought meete or necessary to be done.

To draw then towards some conclusion of the point in hand; All the significations of a Royall pleasure, are, and ought to be, to all Loyall Subjects, in the nature, and force of a Command. As well, for that none may, nor can search into the high discourse, and deepe Counsells of Kings; seeing their hearts are so deepe, by reason of their distance from common men, even as the heavens are in respect of the earth. Therefore said he, who was wise in heart, and deepe in Counsell, The heavens for height, and the earth for depth, and the heart of a King is unsearchable. As also, for that none may dare to call in question the Judgement of a King, because, the heart of a King is in the hand of God, and hee turneth it which way hee pleaseth. Who then may question that, which, God doth proclaime from heaven to bee in his hands, and at his guidance? And for his Soveraigne will (which gives a binding force, to all his Royall Edicts, concluded out of the Reasons of State, and depth of Counsell) who may dare resist it, without incurable waste and breach of Conscience? seeing the Apostle speakes under Edition: current; Page: [64] termes of so great terrour; that he who resists commits a sinne done with an high hand, for he resists the ordinance of God: and so contracts an hainous guilt, and incurres likewise the heaviest punishment: for, to his owne soule doth he receive Damnation.

Nay, though any King in the world should command flatly against the Law of God, yet were his Power no otherwise at all, to be resisted, but, for the not doing of His will, in that which is cleerely unlawfull, to indure with patience, whatsoever penalty His pleasure should inflict upon them, who in this case would desire rather to obey God than Man. By which patient and meeke suffering of their Soveraigne’s pleasure, they should become glorious Martyrs: whereas, by resisting of His will, they should forever endure the paine, and staine of odious Traitors, and impious Malefactors.

But, on the other side; if any King shall command that, which stands not in any opposition to the originall Lawes of God, Nature, Nations, and the Gospell; (though it be not correspondent in every circumstance, to Lawes Nationall, and Municipall) no Subject may, without hazard of his own Damnation, in rebelling against God, question, or disobey the will and pleasure of his Soveraigne. For, as a Father of the Countrey, hee commands what his pleasure is, out of counsell and judgement. As a King of Subjects, he injoines it. As a Lord over God’s inheritance, hee exacts it. As a Supreame head of the body, he adviseth it. As a Defendour of the Faith, hee requires it as their homage. As a Protectour of their persons, lives, and states, he deserves it. And as the Soveraigne procurer of all the happinesse, peace, and welfare, which they enjoy, who are under him, hee doth most justly claime it at their hands. To Kings therefore, in all these respects, nothing can be denied (without manifest and sinfull violation of Law and Conscience) that may answer their Royall state and Excellency: that may further the supply of their Urgent Necessities: that may be for the security of their Royall persons (whose lives are worth millions of others): that may serve for the Protection of their Kingdomes, Edition: current; Page: [65] Territories, and Dominions: that may enable them to yeeld Reliefe, aide, and succour to their deere & Royall Confederates & Allies: or that may be for the defence, and Propagation of that sacred and precious Truth; the publique profession whereof, They doe maintaine by their Lawes, and Prerogatives Royall.

The third point is Obedience. Obedience is a willing and Understanding act of an Inferiour, done at the command, and to the honour of a Superiour. Reasonable then, and Willing, must it be. Violenced-duties, forced and extorted actions, are not within the compasse of true Obedience. Voluntary service is that which pleaseth God and Man. And so well doth this suit with the nature of God, (to whom all things ought to yeeld most willing obedience) that hee pronounceth it better than sacrifice, and to hearken, better than the fat of Rammes.

Every will therefore, and Inclination that is in the Creature, is charged with the dutie of Obedience toward the Maker of it. To this end, God hath planted a double Capacity, and possibility in the Creature, to submit to his pleasure. The one is Naturall, by which, the Creature, in all its actions, that follow, and flow from its forme, doth actually and perpetually serve the Creatour: as the Heavens, in moving; the Earth, in standing still; the Fire, in burning; the Air, and Water, in refreshing, cooling, and flowing.

The other capacity, is called Obedientiall: whereby the Creature is ever ready to doe that which is contrary to its owne Nature; if the Maker’s pleasure bee to command it so. And with this Obedience, did the Earth fearefully shrinke, and fall asunder, to swallow up those Rebells against God, and the King; so to give them a sudden and ready passage into hell, by a direct and streight diameter. Thus, did the waters stand on heapes, and leave the Channell dry, that God’s people might finde a marvelous way, and his enemies a strange death. Thus, did stones yeeld to be lifted up against their nature, into the air, that they might fall backe, and recoile with greater violence; to bruise and braine the enemies of his people. Thus, did the Fire of the Edition: current; Page: [66] Babilonian-Furnace refresh the three Children. And thus, in fine, did the Sunne stand still in Gibeon, and the Moone, in the Valley of Aialon; to give the longer light, and lesser heate to them, who fought for him, that made both Sunne and Moone.

Now, this Power which God hath over, & this kinde of Subjection which he receives from the Creature, is a priviledge, and prerogative, which God hath reserved only to himselfe; and not communicated, at any time, to any King, or Caesar, to have, or to receive Regularly: but only, by way of Impetration, and extraordinary Dispensation, for dispatch of some miraculous worke, as it was in Moses, and Josuah.

All the Obedience therefore, that Man can challenge from man, is, in part, Naturall; as agreeable and convenient to their inclinations: and, in part, Morall, in as much as it is Free and Willing. And this, of right, may every Superiour exact of his Inferiour, as a due debt. And every Inferiour must yeeld it unto his lawfull Superiour, for the same reason. Children, to Parents, in discipline, and Domesticalls: Servants, to their Lords, in their respective and obliged duties: Souldiers, to their Commanders, in Martiall affaires, and feates of Armes: People, to their Pastours, in Conscientious-duties and matters of Salvation: Subjects, to their lawfull Soveraignes, in the high Concernements, of State and Policie. And This is that Obedience, wherewith we are all charged in this Text, by the Word of God, and Wisdome of Salomon.

To draw then toward an end of this third point: We may observe, that, in the Text, there is a double, nay a treble Majestie: The Divine Majestie of him, who is the Living God, and everlasting King; The Majestie of King Salomon, that gives the Counsell; And the Majestie of all Kings, on whose behalfe this Counsell is given. And, did we well consider the King, that gives the Counsell; and the King, that is now to receive the Obedience; and the King, for whose sake it is to be given; and the Reason, why: In regard of the oath of God: it were reason sufficient, without any more adoe, to perswade all Rationall-men, to accept of this Counsell.

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But, there be Pretenders of Conscience, against Obedience; of Religion, against Allegiance; of Human Lawes, against Divine; of Positive, against Naturall; and so, of Man’s Wisdome, against the will and wisdome of God; and of their owne Counsells, against the Counsell of Salomon. These men (no doubt) may bee wise in their generation; but wiser than Salomon no man can thinke them: nor (as I hope) doe they thinke themselves so, for if they did, of such there were little hope. Some there were, in the days of Justin Martyr, who were so strongly conceited of their owne wayes, as to thinke themselves wiser than the Scriptures. Upon them, and the like, Saint Augustine, (against the Donatists), lets fall this sentence, as an heavy beame to bruise their hairy scalps: They (saith he) who preferre their owne desires of contention, before divine and human testimonies; deserve, that, neither their words should be ever held for Lawes, nor their deeds taken for Precedents. Now therefore, Salomon’s wisdome is great, and his Counsell deepe, and able to perswade; and, if these men’s wisdome be from above, as Salomon’s was, it is no doubt perswadeable. And, if I wisht it were, and that they would be perswaded, (as some have beene) I would propound unto their view, a few short Considerations, which, (if they would please well, and seriously to weigh them) might (with facility) remove, as well, all their Speculative, as, Practique errours.

First, if they would please to consider, that, though such Assemblies, as are the Highest, and greatest Representations of a Kingdome, be most Sacred and honourable, and necessary also for those ends to which they were at first instituted: yet know we must, that, ordained they were not to this end, to contribute any Right to Kings, whereby to challenge Tributary aides and Subsidiary helpes;1 but for the more equall Imposing, and more easie Exacting of that, which, unto Kings doth appertaine, by Naturall and Originall Law, and Justice; as their Edition: current; Page: [68] proper Inheritance annexed to their Imperiall Crownes, from their very births. And therefore, if, by a Magistrate, that is Supreame; if, upon Necessity, extreame and urgent; such Subsidiary helpes be required: a Proportion being held respectively to the abilities of the Persons charged, and the Summe, or Quantity so required, surmount not (too remarkeably) the use and charge for which it was levied; very hard would it be for any man in the world, that should not accordingly satisfie such demaunds; to defend his Conscience, from that heavy prejudice of resisting the Ordinance of God, and receiving to himselfe Damnation: though every of those Circumstances be not observed, which by the Municipall Lawes is required.

Secondly, if they would consider the Importunities, that often may be; the urgent and pressing Necessities of State, that cannot stay (without certaine and apparent danger) for the Motion, and Revolution of so great and vast a body, as such Assemblies are; nor yet abide those long and pawsing Deliberations, when they are assembled; nor stand upon the answering of those jealous and overwary cautions, and objections made by some, who (wedded over-much to the love of Epidemicall and Popular errours) are bent to crosse the Just and lawfull designes of their wise and gratious Soveraignes: and that, under the plausible shewes of singular liberty, and freedome; which, if their Consciences might speake, would appeare nothing more than the satisfying either of private humours, passions, or purposes.

In the third place; if they would well weigh the Importance, weight, and moment of the present affaires; for which such helpes are required.

1. It is for the honour of his Sacred Majestie; and to enable him to do that which he hath promised in the word of a King: that is, to give supplie to those Warres, which, the Resolutions of his owne Subjects represented in the high Court of Parliament, caused him to undertake; and that, with the highest Protestations, and fullest Assurances Edition: current; Page: [69] from them, to yeeld him all those Subsidiarie helpes that way, which, the Power, or Love of Subjects, could possibly reach unto.

2. It is for the Security of his Royall State and Person, which ought ever to be most deare and tender unto us: his Life being worth Millions of ours.

3. It is for the Safety and Protection of his Majestie’s Kingdomes, Territories, and Dominions.

4. It is for the Reliefe, and Succour of his Royall and Confederate Uncle the King of Denmarke; who, in a Cause that much neerer concernes us, than it doth himselfe, hath hazarded his life, Crowne, and Kingdome; as they well know.

5. It is also, for the Securing, and Preserving of all our Lives, Goods and States, and the Preventing of Forreigne Invasions, by bitter and subtile enemies of ours, both intended, and projected.

6. And lastly: It is for the Defence, and Propagation of that Sacred and Precious Truth, which we all professe to follow, protest our Interest in, and resolve to die for; if need require, and occasion bee offered.

Fourthly, if they would Consider, what Treasures of wealth are dispended within this Realme, upon purposes of infinite less importance: Nay, to lewd & vile uses, much is spent and with wonderfull alacrity quite cast away: what within, and what without the body; upon backe, and belly, upon fingers, and feete, Rings and Roses, rioting, and drunkennesse, in chambering, and wantonnesse, in pride, and vanity, in lust, and luxury, in strife, and envie; So that, if God come to claime his Tenth, or the King his Tribute, the Devill is gone away with all. So that, we cannot say, as Saint Augustine yet sometimes said, Quod non accipit Christus, tollit fiscus: but where the Devill hath devoured all, there, God and the King, doe loose their right. Mundus totus in maligno positus.

Fifthly, if they would consider, what Advantage this their Recusancy Edition: current; Page: [70] in Temporalls gives to the common Adversarie: who, for disobedience in Spiritualls, hath hitherto alone inherited that Name. For, that, which we ourselves condemne in them, blame them for so doing, and professe to hate that Religion, that teacheth them so to doe; that is, to refuse Subjection unto Princes, in Spiritualls: The same (if not worse) some of our owne side now (if ours they be) dare to practise. For, in Temporalls they submit to his Majestie; though he be no Defendour, but a Suppressour of their Religion. Of their Lives, and States, indeed, his Majestie is a most gratious Protector; but of their Religion not so. Of our Lives, States, Faith, and Religion, is his Sacred Majestie a most gratious Defendour, by his Lawes, and Prerogative Royall; and in his owne Person, a most glorious Example of zealous and active Devotion. Therefore, wee must needs bee argued of lesse Conscience, and more ingratitude, both to God, and the King; if in Temporall things we obey not. They, in Spiritualls, deny Subjection, wherein they may perhaps frame unto themselves some reasons of probabilitie, that their offence is not so hainous. If we, in Temporalls, shall bee Refractary, what colour of reason can possibly we finde out, to make our defence withall, without the utter shaming of ourselves, and laying a staine (that cannot easily be washed out) upon that Religion, which his Majestie doth so gratiously maintaine, and ourselves Professe?

And last of all, (to conclude) if they would consider and know, that hee who doth not, upon the former reasons and Considerations, yeeld all willing Obedience to this Counsell of grace; and observe the Command of his Soveraigne; as Salomon here adviseth: is so farre from being a good man, or a good Christian, or a good Subject, that he is not worthy to be reputed amongst the Reasonables; but such as the Apostle calls absurd and unreasonable men. And, if they shall now at length thinke upon this Transcendent dutie, to doe it with all Obedience, and Alacritie; to God, shall they doe that, which, to him, will be most acceptable: to his Anointed, shall they give great content, in the Edition: current; Page: [71] performance of that promise, we all made to his Majestie, by way of Representation, in that high and honourable Court of Parliament: to their deere and Native Countrie, shall they doe that, which, by Nature they are bound to doe: to themselves, shall they doe well, yea, their owne soules shall they reward with good, and their Consciences with perpetuall Peace. Amen.

Et sic, liberavi animam meam.

finis.
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Peter Heylyn, A Briefe and Moderate Answer

Peter Heylyn, 1600-1662

A Briefe and

Moderate

ANSWER,

TO

The seditious and scandalous Challenges of Henry Burton, late of Friday-Streete;

In the two sermons, by him preached on the fifth of November. 1636. And in the Apologie prefixt before them.

BY

Peter Heylyn.

1. Pet. 2.13,14.

Submit your selves to every ordinance of man for the Lords sake, whether it be to the King as supreame: or unto Governors, as unto them which are sent by him, for the punishment of evill doers, and for the praise of them that doe well.

london:

Printed by Ric. Hodgkinsonne; and are to be sold by Daniel Frere, dwelling in little-Brittan, at the signe of the red-Bull. Anno Domini 1637.

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Peter Heylyn was an Oxford-trained clergyman. From the late 1620s he devoted his talents to promoting divine right monarchy and attacking Puritan beliefs. His efforts quickly brought him to the attention of William Laud and won him a variety of posts. In 1633 he assisted the Court in its case against the pugnacious and outspoken Presbyterian William Prynne. Three years later he obliged the king by writing a history of the sabbath that attacked Puritan scruples. And in 1640 Heylyn was credited with persuading the Convocation of the Church of England to endorse seventeen new canons that specifically asserted the divine right of kings.

With the outbreak of civil war Heylyn escaped to Oxford, where he was employed as editor of the royalist newspaper Mercurius Aulicus. He would live to serve as subdean at Westminster at the coronation of Charles II. Heylyn was described by contemporaries as an acrimonious controversialist, “a bluster-master,” “very conceited and pragmatical.”

Heylyn’s pen was at the service of the Crown and episcopal establishment in “Briefe and Moderate Answer,” a not-so-brief tract of some 194 pages published in 1637. It appeared in a single edition. His Edition: current; Page: [75] purpose was to challenge the religious and political beliefs of the Puritan Henry Burton, a man as outspoken as Heylyn himself. From his London pulpit Burton is said to have conducted “aggressive warfare” against episcopal practices. He was just as insistent that there must be limitations on royal power.

Undeterred by a citation in 1626 for his attack on Archbishop Laud, or by his imprisonment in 1629 for attacking bishops in “Babel no Bethel,” Burton denounced bishops again in November 1636, this time in two sermons published under the title “For God and the King.” He was hauled before the Star Chamber the following year for seditious libel and, along with two other prominent dissenters, Bastwick and Prynne, was brutally punished with deprivation, degradation, fine, pillory, the clipping of his ears, and imprisonment. The release of the three men was one of the first official acts of the Long Parliament.

Chapter two of Heylyn’s lengthy reply to Burton is reprinted here. This chapter is a response to Burton’s “For God and the King,” itself 166 pages long. Heylyn’s refutation does double duty as it provides the modern reader with a healthy dose of Burton’s arguments as well as a biting refutation of them by a vigorous proponent of divine right.

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Chap. II.

The Kings authority restrained, and the obedience of the subject limited within narrow bounds, by H. B. with the removall of those bounds.

The title of the sermon scanned, and the whole divided. H. B. offended with the unlimited power of kings, the bounds by him prescribed to the power of kings, both dangerous and doubtfull. The power of kings how amplified by Jewes, Christians, Heathens. What the King cannot doe, and what power is not in him, by Mass. Burton’s doctrine. The Positive Lawes of the Realme conferre no power upon the King, nor confirme none to him. The whole obedience of the subject restrained by H. B. to the Lawes of the Realme; and grounded on the mutuall stipulation betweene King and people. The dangerous sequells of that doctrine.

A Pravis ad praecipitia. Wee are on the declining hand, out of the Hall into the Kitchin, from an Apologie that was full of weakenesse, unto a Sermon or rather a Pasquill farre more full of wickednesse: yet were we guided either by the Text or Title, we might perswade ourselves there were no such matter, nothing but piety and zeale, and whatsoever a faire shew can promise. But for the Title Sir (I hope you know your owne words in your doughtie dialogue betweene A. and B.) you know the proverbe, Fronti rara fides, the fowlest causes may have the fairest pretences. For whereas you entitle it, for God and the King, you doe therein as Rebells doe most commonly in their insurrections: pretend the safety of the King, and preservation of Religion, when as they doe intend to destroy them both. The civill warre in France, raised by the Duke of Burgundy and Berry against Lewis the eleventh, was christened by the specious name of Le bien Public, for the Common-wealth; but there was nothing lesse intended than the common good. And when the Jewes cryed Templum Domini, Templum Domini, they did but as you doe, abuse the people, and colour their ambition, or their malice, choose you which you will, Edition: current; Page: [77] with a shew of zeale. So that your Title may be likened very fitly, to those Apothecaries’ boxes which Lactantius speakes of, quorum tituli remedium habent, pixides venenum, poysons within, and medecines writ upon the Paper. So for your Text, we will repeat that too, that men may see the better how you doe abuse it. My sonne feare thou the Lord, and the King, and meddle not with them that are given to change; For their calamity shall arise suddenly, and who knoweth the ruine of them both, Prov. 24.21,22. A Text indeed well chosen but not well applied. For had you looked upon yourselfe and the Text together, and followed the direction which is therein given you, you had not so long hunted after innovations, as for these many yeares it is knowne you have; and so might possibly have escaped that calamitie which is now like to fall upon you. But it’s the nature of your humour, as of some diseases, to turne all things unto the nourishment of the part that is ill affected. Meane while you make the Scriptures but a nose of wax, as Pighius once prophanly called it; by wresting it maliciously to serve your turnes; and so confirme the vulgar Papists in contempt of that, which were it not for you, and such as you, they might more easily bee induced both to heare and reverence. Now for the method of your Sermon (I meane to call it so no more) though you observe no method in it, but wander up and downe in repetitions and tautologies, as your custome is: I must thus dispose it. The passages therein, either of scandall or sedition, I shall reduce especially unto these two heads: those which reflect upon the King’s most excellent Majestie, and those which strike directly against the Bishops. That which reflects upon the King, either relates to his authoritie, or his actions. That which doth strike against the Bishops is to be considered as it is referred either unto their place, or to their persons, or finally to their proceedings: and these proceedings are againe to bee considered, either in reference to their Courts, and behaviour there, or to their government of and in the Church, and carriage in that weighty office, wherein you charge them with eight kinds of innovations, most of Edition: current; Page: [78] the generall kinds being subdivided into several branches. For a conclusion of the whole, I shall present unto yourselfe, by way of Corollarie, or resultancie out of all the premisses, how farre you are or may prove guilty of sedition, for that Pulpit pasquill of yours: and so commend you to repentance, and the grace of God. In ripping up whereof, as I shall keepe myselfe especially to your Pulpit-Pasquill: so if I meete with any variae lectiones, in your Apologie, or Epistles, or the Newes from Ipswich, or your addresses to the Lords of the Privie Councell, and my Lords the Judges, I shall use them also either for explication or for application. Such your extravagancies, as cannot easily be reduced to the former heads, I either shall passe over, or but touch in transitu. This is the order I shall use.

First for the King, you may remember what I told you was the Puritan tenet, that Kings are but the Ministers of the Commonwealth, and that they have no more authority than what is given them by the people. This though you doe not say expresly, and in terminis, yet you come very neare it, to a tantamont: finding great fault with that unlimited power which some give to kings, and as also with that absolute obedience which is exacted of the subject. One of your doctrines is, that all our obedience to Kings and Princes and other superiors must be regulated by our obedience to God. Your reason is, because the King is God’s Minister and Vice-regent, and commands as from God, so for God, and in God. Your doctrine and your reason, might become a right honest man. But whats your use?

Your first use is, for reprehension or refutation of those that so advance man’s ordinances and commandements, as though they be contrary to God’s Law, and the fundamentall lawes of the state, yet so presse men to the obedience of them as they hold them for no better than rebells, and to deserve to be hanged drawne and quartered that refuse to obey them, pag. 77. So pag. 88. a second sort come here to be reproved, that on the other side separate the feare of the King from the feare of the Lord: Edition: current; Page: [79] and those are such as attribute to Kings such an unlimited power, as if he were God Almightie himselfe; so as hereby they would seeme to ascribe that omnipotency to the King which the Pope assumes, and his parasites ascribe to his holinesse. So pag. 89. Thus these men crying up, and exacting universall absolute obedience to man, they doe hereby cast the feare of God, and so his Throne, downe to the ground.

Finally you reckon it amongst the Innovations wherewith you charge the Prelats in point of doctrine, that they “have laboured to make a change in the doctrine of obedience to Superiours, setting man so in God’s throne, that all obedience to man must be absolute without regard to God and conscience, whose only rule is the word of God,” pag. 126. In all which passages, however you pretend the word of God, the fundamentall Lawes of state, and conscience: yet clearely you expresse your disaffection unto the soveraignty of Princes, and in effect leave them no greater power than every private man shall thinke fit to give them. Besides there is a tacite implication also, that the King exercises an unlimited power, which cannot possibly consist with the subject’s conscience, the fundamentall lawes of the Kingdome, or the word of God. It had beene very well done of you to have told the people, what were the fundamentall lawes of State, which were so carefully to be preserved; within what bounds and limits the authority of Kings is to be confined, and to have given them a more speciall knowledge of the rule of conscience. For dealing thus in generalls only, (Dolosus versatur in generalibus, you know who said it) you have presented to the people a most excellent ground, not only to dispute, but to disobey the King’s commands.

Now Sir I pray you what are you, or by what spirit are you guided, that you should finde yourselfe agreeved at unlimited power, which some of better understanding than yourselfe have given to Kings: or thinke it any innovation in point of doctrine, in case the doctrine of obedience to our superiours bee pressed more home of late than it Edition: current; Page: [80] hath beene formerly. Surely you have lately studied Buchannan de jure regni, or the vindiciae writ by Beza under the name of Junius Brutus: or else perhaps you went no further than Paraus, where the inferiour magistrates, or Calvin, where the three estates have an authority to controule, and correct the King. And should the King be limited within those narrow bounds which you would prescribe him, had you power; he would in little time be like the antient Kings of Sparta, in which the Ephori, or the now Duke of Venice, in which the Senate beare the greatest stroke: himselfe meanetime, being a bare sound, and an emptie name, Stet magni nominis umbra, in the Poet’s language. Already you have laid such grounds, by which each private man may not alone dispute but disobey the King’s commandements. For if the subject shall conceive that the King’s command is contrary to God’s word, though indeede it be not; or to the fundamentall lawes of state, although hee cannot tell which be fundamentall; or if he finde no precedent of the like commands in holy Scripture, which you have made to be the only rule of conscience: in all these cases it is lawfull not to yeeld obedience. Yourselfe have given us one case in your Margin, pag. 77. We will put the other. Your reprehension is of those, that so advance man’s “ordinances and commandements, as though they be contrary to God’s Law, and the fundamentall lawes of state, yet presse men to obedience to them,” your instance is of one which was shrewdly threatened (how true that is we meane to tell the world hereafter) for refusing to doe that which “was not agreeable to the word of God, viz. for refusing to read the booke of sports, as you declare it in the Margin, pag 26.1 whether you referre us. So then the case is this. The King permits his people honest recreations on the Lord’s day, according as had beene accustomed, till you and your accomplices had cryed it down: with order to the Bishops to see his declaration published in the Churches of their severall dioceses, respectively. Edition: current; Page: [81] This publication you conceive to bee repugnant to God’s word, (though none but a few factious spirits ever so conceived it, and that your doctrine of the Sabbath be contrary to all antiquity and moderne Churches): and therefore by your rule they doe very well that refuse to publish it. It’s true indeed, in things that are directly contrary to the law of God, and such as carry in them a plaine and manifest impietie; there is no question to be made, but it is better to obey God than man. But when the matter chiefly resteth either in misapplying, or misunderstanding the word of God, (a fault too incident to ignorant & unstable men, & to none more than to your disciples and their teachers too) or that the word of God be made a property like the Pharisees’ Corban, to justifie your disobedience unto Kings and Princes: your rule is then as false, as your action faulty. So for your second limitation, that’s but little better; and leaves a starting hole to malicious persons, from whence to worke on the affections of the common people. For put the case, the King in necessary and emergent causes, touching the safety of the kingdome, demand the present aid of all his subjects; and any Tribunitian spirit should informe them, that this demand is contrary unto the fundamentall lawes of state: according to your rule, the subject is not bound to obey the King, nay he might refuse it, although the businesse doth concern especially his owne preservation. But your third limitation, that of conscience, is the worst of it all. For where you make the word of God to bee the only rule of conscience, you doe thereby conclude expressly that neither Ecclesiasticall or Civill ordinances doe bind the conscience: and therein overthrow the Apostle’s doctrine, who would have Every soule be subject to the higher powers. Not for wrath only, but for conscience sake. So that in case the King command us any thing, for which wee finde not some plaine precept or particular warrant in the word of God; as if the King command all Lecturers to read the Service of the Church in their hoods and surplices, before their Lectures: such his command is plainly against conscience, at least the lecturers Edition: current; Page: [82] are not bound in conscience to submit unto it, because there is no speciall precept for it in holy Scripture. And certainly this plea of Conscience, is the most dangerous buckler against authority, which in these later ages hath been taken up. So dangerous that were the plea allowed, and all the judgments of the king in banco, permitted to bee scanned and traversed in this Court of conscience; there were a present end of all obedience. Si ubi jubeantur, quaerere singulis liceat, pereunte obsequio imperium etiam intercedit, as he in Tacitus. If every man had leave to cast in his scruple, the ballast of authority would be soon weighted down.

Yet since you are so much greived at the unlimited power as you please to call it, which some give to Kings; will you be pleased to know, that Kings do hold their Crownes by no other Tenure, than Dei gratia: and that whatever power they have, they have from God, by whom Kings reigne, and Princes decrees justice. So say the Constitutions ascribed to Clements [. . .]. So Irenaeus also an antient father, Cuius iussu homines nascuntur, eius iussu reges constituuntur.2 And Porphirie remembreth it amongst the Tenets of the Essenes a Jewish sect, [. . .], that no man ever did beare rule but by God’s appointment. Holding then what they have from God, whose deputies they are, and of whose power they are partakers, how and by whom doe you conceive they should be limited? Doubtlesse you meane to say by the lawes of the Land. But then if question be demanded who first made those Lawes, you must needes answere, They were made by the King’s authoritie. So that in case the kings, in some particulars, had not prescribed limits unto themselves, and bound their owne hands, as it were, to enlarge the peoples, neither the people, nor any lawes by them enacted, without the King’s consent, could have ever done it. Besides the law of Monarchie is founded on the law of nature, not on positive lawes: and positive lawes I trow are of no such efficacie, as to Edition: current; Page: [83] annihilate anything, which hath its being and originall, in the law of nature. Hence is it, that all soveraigne Princes in themselves are above the lawes, as Princes are considered in abstracto, and extent of power; and how farre that extent will reach, you may see in the first of Sam. and 8 chap. though in concreto a just Prince will not breake those lawes, which he hath promised to observe. Princes are debtors to their subjects, as God to man; non aliquid a nobis accipiendo, sed omnia nobis promittendo,3 as St. Austine hath it. And we may say of them in S. Bernard’s words, Promissum quidem ex misericordia, sed ex justitia persolvendum:4 That they have promised to observe the lawes, was of speciall grace; and it’s agreeable to their justice to observe their promise. Otherwise we may say of kings, as the apostle of the just; Iusto lex non est posita,5 saith the Apostle, and Principi lex non est posita,6 saith the law of nature. Doe you expect more proofe than you use to give? Plutarch affirmes it of some kings, οὐ κατὰ τοὺς νόμους μόνον, ἀλλὰ καὶ τῶν νόμων ἄρχειν, that they did not governe only by the law, but were above it. The like saith Dion of Augustus Caesar, αὐτοτελὴς καὶ αὐτοκράτωρ καὶ ἑαυτοῦ καὶ τῶν νόμων, that he was sure and had an absolute authoritie, as well upon his lawes as upon himselfe. Besides in case the power of kings were restrained by law, after the manner, that you would have it; yet should the king neglect those lawes, whereby you apprehend that his power is limited; how would you helpe yourselfe by this limited power? I hope you would not call a Consistorie and convent him there; or arme the people to assert their pretended liberties: though as before I said, the Puritan tenet is, that you may doe both. Your learned Councell7 might have told you out of Bracton, an ancient lawyer of this kingdome, omnem Edition: current; Page: [84] esse sub Rege & ipsum sub nullo, sed tantum sub Deo.8 And Horace could have told you, that kings are under none but God. Reges in ipsos imperium est Jovis, as he there hath it. You may moreover please to know, what Gregorie of Tours said once to a king of France; Si quis e nobis, O Rex, justitiae tramites transcendere voluerit, a te corripi potest; si vero tu excesseris quis te corripiet? &c. If any of us, O king, offend against the rules of justice, thou has power, “to punish him, but if thou breake those rules, who hath power to doe it? We tell you of it, and when you list, you please to heare us, but when you will not, who shall judge you, but he that tells us of himselfe, that he is justice.”

This was you see the ancient doctrine, touching the power and right of kings, not only amongst Jewes and Christians but in heathen states: whatever new opinion of a limited power, you have pleased to raise.

But you goe further yet, and tell us of some things the king cannot do, and that there is a power which the king hath not; what is it, say you, that the king cannot doe? Marry you say he cannot “institute new rites and ceremonies, with the advise of his Commissioners Ecclesiasticall, or the Metropolitan, according as some pleade from the Act of Parliament before the Communion booke,” pag. 65. Why so? Because, according to your law, this clause of the Act is limited to Queene Elizabeth, and not extended to her successours of the Crowne. This you affirme indeede, but you bring no proofe: only it seems you heard so from your learned councell. You are I see of Calvin’s minde, who tells us in his Commentarie on the 7 of Amos, what had beene said by Doctor Gardiner, after Bishop of Winchester, and then Ambassadour in Germany, touching the headship or Supremacie of the king his master: and closeth up the storie with this short note, inconsiderati homines sunt, qui faciunt eos nimis spirituales, that it was unadvisedly done, to give kings such authority in spirituall matters. But Edition: current; Page: [85] sir I hope you may afford the king that power, which you take yourselves, or which your brethren at the least have tooke before you: who in Queene Elizabeth’s time had their Classicall meetings9 without leave or licence, and therein did ordeine new rites, new Canons, and new formes of service. This you may doe, it seemes, though the king’s hands are bound that he may not doe it. And there’s a power too, as you tell us, that the king neither hath nor may give to others. Not give to others certainely, if he have it not; for nemo dat quod non habet, as the saying is. But what is this? You first suppose and take for granted, that the Bishops make foule havocke in the Church of God, and persecute his faithfull servants: and then suppose, which yet you say is not to be supposed, that they have procured a grant from the king to doe all those things which of late they have done, tending to the utter overthrow of religion by law established. And on these suppositions you doe thus proceede. Yet

whatsoever colour, pretext or shew they make for this, the king (to speake with all humble reverence) cannot give that power to others, which hee hath not himselfe. For the power that is in the king is given him by God, and confirmed by the lawes of the kingdome. Now neither God in his law, nor the lawes of the land, doe allow the king a power to alter the state of religion, or to oppresse and suppresse the faithfull ministers of the Gospell, against both law and conscience. For kings are the ministers of God for the good of his people, as wee shewed before. p. 72, 73.

So you, and it was bravely said, like a valiant man. The Brethren now may follow after their owne inventions, with a full securitie: for since you have proclaimed them to be faithfull ministers, no king nor Keisar dares suppresse them; or if he should, the lawes of God, and the law of the land to boote, would rise in judgement to condemne him, for usurpation of a power which they have not given him. But take me Edition: current; Page: [86] with you brother B. and I perhaps may tell you somewhat that is worth your knowledge. And I will tell you sir if you please to hearken, that whatsoever power is in the king, is from God alone, and founded on the law of nature. The positive lawes of the land as they conferre none on him, so they confirme none to him. Rather the kings of England have parted with their native royalties for the people’s good: which being by their owne consent, established for a positive law, are now become the greatest part of the subjects’ liberties. So that the liberties, possessions, and estates of the king’s leige people, are, if you will, confirmed by the lawes of the land; not the king’s authoritie. As for the power of kings which is given by God, and founded on the law of nature, how farre it may extend in the true latitude thereof, we have said already. Whether to alter the state of religion, none but a most seditious spirit, such as yours would put unto the question: his majestie’s pietie and zeale, being too well knowne to give occasion to such quaeres. Only I needes must tell you, that you tie up the king’s hands too much, in case he may not meddle with a company of Schismatickes, and refractarie persons to all power and order, only because you have pronounced them to be faithfull ministers of the Gospell. Such faithfull ministers of the Gospell as you and yours, must bee suppressed, or else there never will be peace and unitie in the Citie of God. And yet I see you have some scripture for it, more than I supposed: king’s being, as you tell us from S. Paul, the ministers of God for the good of their people, and no more than so? I thought S. Paul had also told us, that the King is a minister of God, an avenger to execute wrath upon him that doth evill: yea more than so too brother B. and it may concerne you, viz. if thou doe that which is evill be afraid, for he beareth not the sword in vaine. Aut undequaque pietatem tolle, aut undequaque conserva;10 Take the whole text along good sir, or take none at all: and if you take all be afraid, as you are advised, verbum supienti.

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I must goe forwards with you yet from the authoritie of the king, to the obedience of the subject; which you doe presse indeede, but on such false grounds, as in conclusion overthrow the whole frame of government. The absolute obedience of the subject you have dashed alreadie, and reckon it amongst those innovations in point of doctrine, which you have charged upon the Prelates: and in the place thereof bring in a limited or conditionall obedience, of your owne devising. Your first condition or limitation rather, is, viz. that our subjection unto the King, is to be regulated as by God’s law, the rule of universall obedience to God and man, so by the good laws of the king. p. 38. The king as you informe us p. 42. having entered into solemne and sacred covenant with all his people, to demand of them no other obedience, but what the good lawes of the kingdome prescribe & require: as on the other side, the people swearing no other obedience to the king than according to his just lawes, pag. 39. and 40. In which restraint, there are two things to be observed, first that wee are to obey the king no farther than there is law for it, and secondly no farther than that law seemes good. So that in case the king commands his people any thing for which he hath no positive law to warrant his command; and of this sort are many Proclamations, orders, decrees, injunctions, set out from time to time by the king’s authoritie, and Prerogative royall, by brother Burton’s rule the people are at liberty to obey or not. And on the other side, in case the said command bee grounded on some positive law which they like not of, whether it be a penall statute, or some old Act of Parliament almost out of use, by the reviving of the which they may be prejudiced in purse or otherwise: this is no good law in their judgement, and so no more to be obeyed than if the king’s command were founded on no law at all. But your next limitation is farre worse than this, though this bad enough. For in the next place you have

grounded all obedience on the people’s part, upon that mutuall stipulation which the king and his subjects make at his Coronation. Where the king takes an explicite solemne oath to mainteine Edition: current; Page: [88] the antient lawes and liberties of the kingdome, and so to rule and governe all his people according to those lawes established; consequently and implicitely all the people of the land doe sweare fealtie, allegiance, subjection and obedience to their king, and that according to his just lawes, pag. 39. Your inference from hence is this, that if the king so solemnely by sacred oath, ratified againe in Parliament under his royall hand, doe bind himselfe to maintaine the lawes of his kingdome, and therein the rights and liberties of his subjects, then how much are the people bound to yeeld all subjection and obedience to the king, according to his just lawes, p. 40.

So that according to your doctrine, the people is no longer to obey the king, than the king keepes promise with the people. Nay of the two the people have the better bargaine; the king being sworne explicitely and solemnely to maintaine their liberties; the people only consequently and implicitely to yeeld him subjection. Is not this excellent doctrine think you? Or could the most seditious person in a state have thought upon a shorter cut to bring all to Anarchie; for if the subject please to misinterpret the king’s proceedings, and thinke though falsely, that he hath not kept his promise with them: they are released ipso facto from all obedience and subjection, and that by a more easie way, than suing out a dispensation in the Court of Rome. You tell us, p. 129. of the king’s free subjects; and here you have found out a way to make them so: a way to make the subject free, and the king a subject; and hard it is to say whether of the two be the greater Contradiction in adjecto. I have before heard of a free people, and of free states, but never till of late a free subject: nor know I any way to create free subjects, but by releasing them of all obedience to their Princes. And I have read too of Eleuthero Cilices, which were those people of Cilicia that were not under the command of any king: but never reade of an Eleuthero Britannus, nor I hope never shall. I will but aske you one question, and so end this point. You presse the Edition: current; Page: [89] king’s oath very much about maintaining of the lawes of the Kingdom, as pag. 39. 40. and 42. before recited, as also, pag. 72. againe and againe, and finally in your addresse to my Lords the Judges. Is it by way of Commemoration or of Exprobration? If of Commemoration, you forget the Rule; memorem immemorem facit, qui monet quae memor meminit.11 But if of Exprobration, what meant you, when you needed not to tell us, that in a point of Civill Government, it is a dangerous thing to change a Kingdom setled on good lawes into a tyranny; and presently thereon to adde a certaine speech of Heraclitus, viz. That citizens ought to fight no lesse for their lawes, than for their walls. I only aske the question, take you time to answere it.

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Battle Joined 1640-1648

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Henry Parker, The Case of Shipmoney

[Henry Parker, 1604-1652]

The Case of

SHIPMONY

briefly discoursed,

ACCORDING TO THE

Grounds of Law, Policy,

and Conscience.

AND

MOST HVMBLY

PRESENTED TO THE

Censure and Correction of the High Court of Parliament, Nov. 3. 1640.

Printed Anno Dom. 1640.

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Henry Parker, one of the most prolific writers in the cause of Parliament in the civil war era, has also been dubbed the clearest and most realistic. A graduate of St. Edmund Hall, Oxford, he was called to the bar at Lincoln’s Inn in 1637. Parker quickly put his talents to work in support of the Presbyterian, and later the Independent, opponents of the Crown. During the civil war and Interregnum Parker held a series of important posts for Parliament. He served as secretary to Parliament’s army under the Earl of Essex, then in 1645 as secretary to the House of Commons where he prepared various declarations, and finally as secretary to Cromwell’s army in Ireland. He died in Ireland late in 1652, aged forty-eight.

Parker was renowned among his contemporaries and is recognized Edition: current; Page: [95] among modern historians as one of Parliament’s most important theorists. His first published tract, the anonymous “The Case of Shipmony Briefly Discoursed” reprinted here, was prepared for presentation to the Long Parliament on the day it convened. Three editions appeared. It is not only a vigorous denunciation of a levy widely condemned as an abuse of the royal prerogative but underlines for us the grave constitutional threat contemporaries saw in shipmoney itself and, even more, in the legal reasoning with which the royal judges had upheld it. With crystal clarity Parker forges the link between political grievance and constitutional menace. The Long Parliament went on to outlaw shipmoney.

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The Case of Ship-Money Briefly Discoursed.

Great Fires happening in Townes or Cities, are sometimes the cause that other contiguous houses are spoiled and demolisht, besides those which the flame itselfe seizes. So now, in the case of Shipmoney, not only the judgement itselfe which hath been given against the subject, doth make a great gap and breach in the rights and Franchises of England, but the arguments and pleadings also, which conduced to that judgement, have extended the mischiefe further, and scarce left anything unviolated. Such strange contradiction there hath been amongst the pleaders, and dissent amongst the Judges, even in those Lawes which are most fundamentall, that we are left in a more confused uncertainty of our highest priviledges, and those customes which are most essentiall to Freedome, than we were before. To introduce the legality of the Ship-scot,1 such a prerogative hath been maintained, as destroyes altogether Law, and is incompatible with popular liberty: and such Art hath been used to deny, traverse, avoid, or frustrate the true force, or meaning of all our Lawes and Charters, that if wee grant Ship-money upon these grounds, with Ship-money wee grant all besides. To remove therefore this uncertainty, which is the mother of all injustice, confusion, and publicke dissention, it is most requisite that this grand Councell and Treshault Court2 (of which none ought to thinke dishonourably) would take these Arduis Regni, these weighty and dangerous difficulties, into serious debate, and solemnly end that strife, which no other place of Judicature can so effectually extinguish.

That the King ought to have aid of his subjects in times of danger, and common aid in case of common danger, is laid downe for a ground, and agreed upon by all sides. But about this aid there remaines much variety and contrariety of opinion amongst the greatest Edition: current; Page: [97] Sages of our Law; and the principall points therein controverted, are these foure: First, by what Law the King may compell aid. Secondly, when it is to bee levied. Thirdly, how it is to bee levied. Fourthly, what kinde of aid it must be.

1. Some of the Judges argue from the Law of Nature, that since the King is head, and bound to protect, therefore he must have wherewithall to protect: but this proves only that which no man denies. The next Law insisted upon, is Prerogative; but it is not punctually explained what Prerogative, whether the Prerogative naturall of all Kings, or the Prerogative legall of the Kings of England. Some of the Judges urge, that by Law there is naturall allegeance due to the King from the subject, and it doth not stand with that allegeance that our Princes cannot compell aid, but must require the common consent therein. Others presse, that the Law hath setled a property of goods in the subject, and it doth not stand with that property, that the King may demand them without consent. Some take it for granted, that by Royall prerogative, as it is part of the Lawes of England, the King may charge the Nation without publick consent; and therefore it being part of the Law, it is no invasion upon Law. Others take it for granted, that to levie money without consent, is unjust, and that the King’s prerogative cannot extend to any unjust thing. So many contrary points of warre doe our Trumpets sound at once, and in such confusion doe our Judges leave us, whilest either side takes that for granted, which by the other is utterly denied. By these grounds Royall prerogative, and popular liberty may seeme things irreconcileable, though indeed they are not; neither doth either side in words affirme so much, though their proofes bee so contradictory. King Charles his Maxime is, that the people’s liberty strengthen the King’s prerogative, and the King’s prerogative is to maintaine the people’s liberty; and by this it seemes that both are compatible, and that prerogative is the more subordinate of the two. The King’s words also since have been upon another occasion, That he ever intended Edition: current; Page: [98] his people should enjoy property of goods, and liberty of persons, holding no King so great, as he that was King of a rich and free people: and if they had not property of goods, and liberty of persons, they could bee neither rich nor free. Here we see, that the liberty of the subject is a thing which makes a King great; and that the King’s prerogative hath only for its ends to maintaine the people’s liberty. Wherefore it is manifest, that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people’s good and profit will beare, not what liberty the King’s absolutenes or prerogative may admit: and in this dispute it is more just that wee appeale to written lawes, than to the breasts of Kings themselves. For we know Nationall lawes are made by consent of Prince and people both, and so cannot bee conceived to be prejudiciall to either side; but where the meere will of the Prince is law, or where some few Ministers of his, may alledge what they will for law in his behalfe, no mediocrity or justice is to be expected. We all know that no slave or villaine, can be subjected to more miserable bondage than to be left meerly to his Lord’s absolute discretion: and wee all see that the thraldome of such is most grievous, which have no bounds set to their Lord’s discretion. Let us then see what Fortescue writes, not regard what Court dependents doe interpret, and his words are for 84. Cap. 36. Rex Anglia nec per se nec per suos Ministros Tollagia subsidia aut quavis onera alta imponit legis suis, aut leges corum mutat, aut nova condit sine concessione vel assensu totius regni sui in Parliamento sui expresso.3 These words are full, and generall, and plaine, and in direct affirmance of the ancient Law and usage of England, and it is not sufficient for the King’s Counsell to say that these words extend not Edition: current; Page: [99] to Ship-money: for if there were any doubt, the interpretation ought rather to favour liberty, than prerogative.

It is not sufficient for Judge Jones to say that it is proprium quarto modo4 to a King, and an inseparable naturall prerogative of the Crowne to raise monies without assent, unlesse he first prove that such prerogative bee good and profitable for the people, and such as the people cannot subsist at all without it: nay such as no Nation can subsist without it. This word Prerogative has divers acceptions: sometimes it is taken for the altitude of Honour, sometimes for the latitude of Power. So wee say the prerogative of an Emperour is greater, than that of a King and that of a King, greater than that of a Duke, or petty Potentate: and yet of Kings we say that the King of Denmarke has not so great a Prerogative as the King of England, nor the King of England, as the King of France, &c. For here though their honor and title be the same, yet their power is not. Sometimes Prerogative signifies as much as Soveraignty, and in this generall consideration, wee say, that all supreame commanders are equall, and that they all have this essentiall inseparable Prerogative, that their power ought to be ample enough for the perfection, and good of the people, and no ampler: because the supreame of all human lawes is salus populi. To this law all lawes almost stoope, God dispences with many of his lawes, rather than salus populi shall bee endangered, and that iron law which wee call necessity itselfe, is but subservient to this law: for rather than a Nation shall perish, any thing shall be held necessary, and legal by necessity. But to come to the Prerogative of England, and to speake of it in generall, and comparatively; wee say it is a harmonious composure of policy, scarce to be parralled in all the world, it is neither so boundlesse as to oppresse the people in unjust things, nor so straite as to disable the King in just thinges. By the true fundamentall constitutions of England, the beame hangs even Edition: current; Page: [100] between the King and the Subject: the King’s power doth not tread under foot the people’s liberty, nor the people’s liberty the King’s power. All other Countries almost in Christendome, differ from us in this module of policy: some, but very few, allow a greater sphere of Soveraignty to their Princes; but for the most part now adays the world is given to republists, or to conditionate and restrained forms of government. Howsoever wee ought not to condemne any Nation as unjust herein, though differing from us; for though they seem perhaps very unpolitick, yet it is hard to bee affirmed that God and Nature ever ordained the same method of rule, or scope of royalty to all States whatsoever. Besides what dislike soever wee take at other regiments, yet except it bee in very great excesses or defects, wee must not thinke change always necessary, since custome in those great and generall points obtaines the force of another nature & nature is not to be changed. Divines of late have been much to blame here in preaching one universall forme of government as necessary to all Nations, and that not the moderate, & equall neither, but such as ascribes all to Soveraignty, nothing at all to popular libertie. Some Lawyers also and Statesmen have deserved as ill of late, partly by suggesting that our English lawes are too injurious to our King; and partly by informing, that this King is more limited by law than his Progenitors were, & that till hee be as the King of France is Rex Asinorum,5 hee is but a subject to his subjects, and as a Minor under the command of guardians: but what hath ensued out of the King’s jealousy of his subjects, and overstraining his prerogative? Nothing but irreparable losse, and mischiefe both to King and Commonwealth. And indeed the often and great defections, and insurrections, which have happened of late, almost all over Europe,6 may suffice to warne Edition: current; Page: [101] all wise Princes, not to overstrain their Prerogatives too high; nor to give care to such Counsellors as some of our Judges are, who affirme our King’s Prerogative to be in all points unalterable, and by consequence not depending upon law at all. By an other exception of this word Prerogative in England, we mean such law here establisht as gives the King such and such preeminences, and priviledges: before any subject, such as are not essentiall to royalty, but may be annulled by the same power, by which they were created. That a King shall defend and maintaine his subjects, is a duty belonging to the Office, not a priviledge belonging to the Crowne of a King; this obligation nature lays upon him, and no other power can dissolve it. Also that subjects shall afforde aide, and joine with their Princes in common defence, is a duty arising from the allegiance of the people, and not an honor redounding only to the Prince; nature’s law hath made this a tie not to be changed, or infringed: for that which is annexed by an eternall superiour power cannot be made severable, by a temporall human power. But that such an Emperour, King or Potentate, shall have such or such aid, and compell it by such or such meanes, at such or such times, as to the particular modes and circumstances of his aid, particular municipall Lawes must direct; and these it would be as dangerous to alter, as it is absurd to hold unalterable. In a Parliament held by King James, it was debated, whether or no Tenures in Capite,7 and allowance of Perveyors8 might bee repealed and divided from the Crowne; and it was held that by no Act or Statute they could bee taken away, because they were naturally inherent to the Crowne.

This resolution seemes very strange to me, since the Law of Tenures and Purveyors is not so naturall and essentiall to Monarchy, that it cannot or may not subsist without it. For if in other Countries it bee held a meere politicall way, perhaps an inconvenient thing, then Edition: current; Page: [102] why may not the Prince’s Royalty, and the people’s safety bee preserved intire without it in England? And if so, then why shall not the same authority have vigor to repeale it, which wanted not vigor to inforce it? I cannot conceive that the Parliament herein reflected upon what was formall in Law to bee done, but rather upon what was convenient. Such insignia suprema Majestatis as these, I doe not hold it fit to bee dismembred from the Crowne in policie; I only hold it a thing possible in Law, nay though the King enjoy divers such like prerogatives more, as J. Jones thinkes, than any Prince in Christendome, yet should not I desire or advise to plucke away one the least Flower out of the Regal Garland, nor would it be (perhaps) profitable for the State, to suffer the least diminution thereof. Wee know also, that in England the prerogative hath been bound in many cases, by Statute-Law, and restrained of divers such priviledges as were not essentiall, but meerly politicall. Nullum tempus occurrit Regi:9 This was one of the English Royalties, and very beneficiall many wayes; yet wee know this is in divers cases limited by Act of Parliament, and that very justly, as J. Hutton argues. The great and ancient Tax of Dangelt, it was a Subsidie taken by the Kings of England, for the common defence of the Kingdome; yet this was first released by King Stephen, and after abolished for ever by the Statutes of Edward the first: and there is no reason why an Act of Parliament should not bee as valid in our case, as it was in that. Wherefore it is to bee admired, that J. Jones should account this way of aid by Ship-money, or any other, without publicke consent, to bee Proprium quarto modo10 to the Kings of England, and so unrepealeable, since our Kings have in all ages, done such noble acts without it; and not only defended, but also enlarged their dominions. The last kinde of acception of this word Prerogative, is improper. Thus to pardon malefactors, to dispence with penall Lawes, to grant Non obstantes, to bee free from attainders, Edition: current; Page: [103] to call or discontinue, to prorogue or dissolve Parliaments, &c. are not truely and properly called Prerogatives: these all in some sense may bee called Munities, or indemnities, belonging to the sacred person of the King, as hee is inviolable, and subject to no force and compulsion of any other. And as he is the soule of Law, in whose power alone it is to execute Law, and yet not to bee constrained thereto. To grant a pardon to some malefactors for some crimes, may perhaps bee as heinous as to commit them; and that which drawes a guilt upon the King, cannot bee said to bee his priviledge. If it might bee tearmed a Royalty, that the King is not questionable, or punishable, or to bee forced in such acts as tend to the obstruction of justice, it might as well be so tearmed in acts tending to the transgression of Law: for in both hee is alike free from any coercive, or vindicative force. For it is out of necessity, not honour, or benefit, that the King hath a freedome from constraint, or restraint in these cases; and that this freedome is inseparable, because no force can be used but by superiours, or equals, and hee which hath either superiors or equals, is no King. If a King should shut up the Courts or ordinary Justice, and prohibit all pleadings and proceedings betwixt man and man, and refuse to authorise Judges for the determining of suits, hee would bee held to doe a most unkingly thing: and yet this may be as truly called a Prerogative, as to disuse and dissolve Parliaments. But it may bee objected, that the King besides such negative priviledge and freedome from force, hath also a positive of seizing subjects’ lands, &c. in divers cases, as in making Bulwarkes upon any man’s land for common defence &c. To this it may be answered, That to such power the King is not intitled by his Prerogative, nor is it any benefite to him, necessitie herein is his only warrant: for either this private inconvenience must happen, or a publick ruine follow and in nature the lesse and private evill is to bee chosen: and here the party trespassed, enjoyes safety by it, and shall after receive satisfaction for his detriment. Were there such apparant unavoidable necessity in the Ship-scot, Edition: current; Page: [104] that either that course must bee taken, or the community inevitably perish, or were the King wholly disinterested in point of profit, or were there hope of restitution, it could not bee without consent, and so not against Law. So then, for ought that is yet alledged, Prerogative, except that which is essentiall to all Kings, without which they cannot bee Kings, is alterable, and it ought to be deduced out of the written and knowne Lawes of the Kingdome, and Law is not to be inferred out of that; wee ought not to presume a Prerogative, and thence conclude it to be Law, but we ought to cite the Law, and thence prove it to be Prerogative. To descend then to our owne Lawes, yet there our Judges vary too. What the Common Law was in this point is doubted by some, and some say if the Common Law did allow the King such a prerogative to lay a generall charge without consent, then Statutes cannot alter it.

Some doe not except against the force of Statute Law, but avoid our particular Statutes by divers several evasive answers. Some say our Great Charter was but a grant of the King, extorted by force; some except against the 25. of Ed. I. because there is a salvo in it; some against the 34. of Ed. I. as made in the King’s absence; some object against the 14. of Ed. 3. as if it were temporary, and because it is not particularly recited in the Petition of Right. And the common evasion of all beneficiall Statutes, and of the Petition of right, is, that they binde the King from imposing pecuniary charges for the replenishing of his owne coffers, but not from imposing such personall services, as this Ship-scot is, in time of danger and necessity. J. Crawly maintains this Ship-scot to bee good by Prerogative at the Common Law, and not to be altered by Statute. What the Common Law was, this Court can best determine; but it is obvious to all men, that no Prerogative can be at the Common Law, but it had some beginning, and that must bee from either King or Subject, or both: and in this, it is not superiour to our Statute Law, and by consequence not unalterable. The Medes and Persians had a Law, that no Law Edition: current; Page: [105] once past, should ever bee repealed; but doubtlesse this Law being repealed first, all others might after suffer the same alteration, and it is most absurd to think that this Law might not bee repealed by the same authority by which it was at first enacted. J. Jones sayes, our Statutes restraine tollages in generall termes, and cites divers cases, that a speciall interest shall not passe from the King, but in special termes. But his cases are put of private grantees, over whom the King ought to retaine a great preheminence: but the Law is, that where the whole state is grantee, that grant shall have the force of a Statute, because it is pro bono publico, and because the whole state is in value and dignity as much to be preferred before the King, as the King is before any private grantee. But J. Jones sayes further, if generall words shall extend to these extraordinary publick levies, then they may as well extend to his ordinary private rights, and intradoes, & so cut off Aide pur faire filz Chivaleir, &c. The contrary hereof is manifest, for the intent of all our Statutes is to defend the subject against such publick tollages and impositions, as every man is equally liable to, and as are not due in Law otherwise, or recoverable by ordinary action. Now these aides, &c. and the King’s ordinary revenues and services, are not such as are due from every man, but recoverable by ordinary action. Howsoever in all these doubts the Law would now bee made cleare, and not only the vertue of Statutes in generall, but also the true meaning of our particular Charters would be vindicated from all these exceptions.

2. I come now to our second difficulty, when a publicke charge may bee laid. Here the favourers of Ship-money yet agree, that the King may not charge the subject meerly to fill his owne coffers, or annually, or when he will invade a forraigne enemy, or when Pirates rob, or burn Townes and Burroughs, for these ordinary defence is sufficient: and when there is imminent and eminent danger of publick invasion, we agree that the subject may be charged.

The Quaere then is, whether the King bee sole Judge of the danger, Edition: current; Page: [106] and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned. J. Crooke proves the contrary thus: If danger, sayes he, be far distant, if it be in report only of French armadoes, and Spanish preparations, &c. though it bee certaine, and not pretensive, yet Parliamentary Aid may be speedy enough: and if it be imminent, then this way of Ship-scot will not bee speedy enough; for either the designe is really to have new Ships built, and that will require longer time than a Parliament; or else money only is aimed at, whereby to arme other Ships, and for this the Law hath provided a more expedite way than by Ship-scot, in case of imminent danger.

If then the King have power to presse all men’s persons and ships, and all are bound exponere se, & sua,11 and to serve propriis sumptibus,12 when imminent danger is, and this defence hath alwayes beene held effectuall enough, it is consequent that if hee be not destitute of competent Aid in present distresses, he cannot pretend a greater necessity in dangers more remote, when they are but suspected or perhaps pretended only.

My Lord Bramston sayes here, that there is a necessity of preventing a necessity: and that the Sea is part of the Kingdome, and therefore of necessity to bee guarded as the kingdome. The answer is, That the safety of the Kingdome does not necessarily depend upon the Ship-scot, and so this necessity being removed, the necessity grounded upon this, falls off of itselfe. For if the Kingdome may escape ruine at hand when it is a storme, without Ship-money, it may much more escape it afar off, being but a cloud. But grant the Sea to be a part of the Kingdome to some purposes, yet how is it a part essentiall, Edition: current; Page: [107] or equally valuable, or how does it appeare that the fate of the Land depends wholly upon the dominion of the Sea? France subsists now without the regiment of the Sea, and why may not we as well want the same? If England quite spend itselfe, and poure out all its treasure to preserve the Seigniory of the Seas, it is not certaine to exceed the Navall force of France, Spaine, Holland, &c. And if it content itselfe with its ancient strength of shipping, it may remaine as safe as it hath formerly done. Nay I cannot see that either necessity of ruine, or necessity of dishonour can bee truly pretended out of this, that France, Spaine, Holland, &c. are too potent at Sea for us.

The dominion of the seas may be considered as a meer right, or as an honour, or as a profit to us. As a right it is a theme fitter for schollers to whet their wits upon, than for Christians to fight and spill bloud about: and since it doth not manifestly appeare, how or when it was first purchased, or by what law conveyed to us, wee take notice of it only as matter of wit and disputation. As it is an honour to bee masters of the sea, and to make others strike saile to us as they passe; it’s a glory fitter for women and children to wonder at; than for Statesmen to contend about. It may bee compared to a chaplet of flowers, not to a diadem of gold: but as it is a profit to us to fence and inclose the sea, that our neighbours shall not surprise us unawares, it’s matter of moment, yet it concernes us but as it doth other Nations. By too insolent contestations hereupon, wee may provoke God, and dishonour ourselves; we may more probably incense our friends, than quell our enemies, wee may make the land a slave to the sea, rather than the sea a servant to the land. But I pray Master Selden to pardon me for this transition, and I returne my matter. If the Kingdome could not possibly subsist without Ship-money in such a danger, yet there is no necessity that the King should be so sole Judge of that danger, as that he may judge therein contrary to the opinion, and perhaps knowledge of other men. I allow the King to be supreame, and consequently sole Judge in all cases whatsoever, as to the Edition: current; Page: [108] right, and as to the diffusion of Judgement; but as to the exercise, and restraint of judgment, he is not, nor ought not to be accounted sole Judge. In matters of Law the King must create Judges, and swear them to judge uprightly, and impartially, and for the subject against himself, if law so require; yea though hee bee of contrary judgement himselfe, and by his Letters sollicite the contrary. The King’s power is as the disgestive faculty in nature, all parts of the body contribute heat to it for their owne benefit, that they may receive backe againe from it a better concocted and prepared supply of nourishment, as it is their office to contribute, so it is the stomacke’s to distribute.

And questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will: if he say only, Datum est nobis intelligi,13 as he does in this Writ, &c. To his sole indisputable judgement it is left to lay charges as often and as great as he pleases. And by this meanes, if he regard not his word more than his profit, hee may in one yeare draine all the Kingdome of all its treasure, and leave us the most despicable slaves in the whole world.

It is ridiculous also to alledge, as J. Jones does, that it is contrary to presumption of Law to suspect falsity in the King: for if Law presume that the King will not falsly pretend danger to vexe his subjects, of his owne meere motion, yet no Law nor reason nor policy will presume, that the King may not be induced by misinformation to grieve the people without cause. The Sunne is not more visible than this truth, our best Kings, King Charles, King James, Queene Elizabeth, and all the whole ascending line, have done undue illegall things at some times, contrary to the rights and Franchises of England, being Edition: current; Page: [109] misinformed, but having consulted with the Judges, or States in Parliament, they have all retracted, and confessed their error. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made? and if Lawes are frustrate and absurd, wherein doe we differ in condition from the most abject of all bondslaves?

There is no Tyranny more abhorred than that which hath a controlling power over all Law, and knowes no bounds but its owne will: if this be not the utmost of Tyranny, the Turkes are not more servile than we are and if this be Tyranny, this invention of ship-money makes us as servile as the Turkes. We must of necessity admit, that our Princes are not to be misse-led, and then our Lawes are needlesse; or that they may be misse-led, and then our Lawes are useless. For if they will listen to ill counsell, they may be moved to pretend danger causlesly; and by this pretence defeate all our lawes and liberties, and those being defeated, what doth the English hold, but at the King’s meere discretion, wherein doth he excell the Captive’s condition? If we shall examine why the Mohametan slaves are more miserably treated, than the Germans, or why the French Pesants are so beggarly, wretched, and beastially used more than the Hollanders, or why the people of Milan, Naples, Sicily are more oppressed, trampled Edition: current; Page: [110] upon, and inthralled than the Natives of Spaine? there is no other reason will appeare but that they are subject to more immoderate power, and have lesse benefit of law to releeve them.

In nature there is no reason, why the meanest wretches should not enjoy freedome, and demand justice in as ample measure, as those whom law hath provided for: or why Lords which are above law should bee more cruell than those which are more conditionate. Yet we see it is a fatall kind of necessity only incident to immoderate power, that it must be immoderately used: and certainly this was well known to our ancestors, or else they would not have purchased their charters of freedome with so great an expence of bloud as they did, and have endured so much so many yeares, rather than to bee betrayed to immoderate power, and prerogative. Let us therefore not bee too carelesse of that, which they were so jealous of, but let us look narrowly into the true consequence of this ship-scot, whatsoever the face of it appeare to be. It is vaine to stop twenty leakes in a ship, and then to leave one open, or to make lawes for the restraint of royalty all other ways, that it may not overflow the estates of the Commonalty at pleasure, and yet to leave one great breach for its irruption.

All our Kings hitherto have been so circumscribed by law, that they could not command the goods of their subjects at pleasure without common consent. But now if the King bee but perswaded to pretend danger, hee is uncontroleable Master of all we have, one datum est intelligi, shall make our English Statutes like the politick hedge of Goteham, and no better. I doe not say that this King will falsifie, it is enough that we all, and all that we have are at his discretion if he will falsifie, though vast power be not abused, yet it is a great mischiefe that it may, and therefore vast power itselfe is justly odious, for divers reasons. First, because it may fall into the hands of ill disposed Princes, such as were King John, Henry the third, Edward the second, Richard the second. These all in their times made England miserable, and certainly had their power beene more unconfineable, they Edition: current; Page: [111] had made it more miserable. The alterations of times doe not depend upon the alteration of the people, but of Princes: when Princes are good it fares well with the people, when bad ill. Princes often vary, but the people is always the same in all ages, and capable of small, or no variations. If Princes would endure to heare this truth it would bee profitable for them, for flatterers always raise jealousies against the people; but the truth is, the people as the sea have no turbulent motion of their owne, if Princes like the windes doe not raise them into rage. Secondly, vast power if it finde not bad Princes it often made Princes bad. It hath often changed Princes, as it did Nero from good to bad, from bad to worse: but Vespasian is the only noted man which by the Empire was in melius mutatus: daily experience teaches this. Dangelt in England within twenty yeares increased to a fourefold proportion.

Subsidies were in former times seldome granted, and few at a time, now Parliaments are held by some to bee of no other use than to grant them. The Fox in Aesop observed that of all the beasts which had gone to visite the Lion, few of their footesteps were to be seene retrorsum: they were all printed Adversum. And we finde at this day that it is farre more easie for a King to gaine undue things from the people, than it is for the people to regaine its due from the King. This King hath larger dominions, and hath raigned yet fewer yeares and enjoyed quieter times than Queen Elizabeth; and yet his taxations have been farre greater, and his exploits lesse honorable, and the people is still held in more jealousy. To deny ship-money which sweeps all, is held a rejection of naturall allegiance. I speake not this to render odious the King’s blessed government, I hold him one of the mildest, and most gracious of our Kings; and I instance in him the rather, that wee may see, what a bewitching thing flattery is, when it touches upon this string of unlimitable power. If this ambition and desire of vast power were not the most naturall and forcible of all sinnes, Angels in heaven, and man in Paradise had not fallen by it; Edition: current; Page: [112] but since it is, Princes themselves ought to be more cautious of it. Thirdly, vast power if it neither finde nor make bad Princes, yet it makes the good government of good Princes the lesse pleasing, and the lesse effectuall, for publick good: and therefore it is a rule both in law and policy, and nature, Non recurrendum est ad extraordinaria, in iis quae fieri possunt per ordinaria.14 All extraordinary aides are horrid to the people, but most especially such as the ship-scot is, whereby all liberty is overthrowne, and all law subjected to the King’s meer discretion.

Queen Elizabeth in 88. was victorious without this taxation, and I am perswaded she was therefore victorious the rather, because shee used it not. Her art was to account her subjects’ hearts as her unfailing Exchequer, and to purchase them by doing legall just things, and this art never deceived her, and in that dismall gust of danger it was good for her and the State, both that she did not rely upon forced aides of money, or the words of grieved souldiers; for this Ship money nothing can bee pretended but necessity, and certainly necessity is ill pretended, when the meer doing of the thing, is as dangerous as that for which it is done. Did not this Ship-scot over-throw all popular liberty, and so threaten as great a mischife as any conquest can? and were not the people justly averse from it? Yet meerly for the people’s disaffection to it, it is dangerous to bee relied upon in case of great danger.

We know Nature teacheth us all, of two evils to chuse that which wee thinke the least, though it bee not so; therefore if the people apprehend this remedy as a thing worse than the disease, though they be mistaken therein, yet that very mistake may prove fatall. The Roman Army being harshly treated by the Senators, and their proud Generall, did refuse to charge upon the enemy, or to resist the charge of the enemie, they chose rather to bee slaughtered by strangers, than Edition: current; Page: [113] enthralled by their countreymen. The English also in the late Scotch invasion, by reason of this and many other causes of discontent, made so faint resistance, that they did in a manner confesse, that they held themselves as miserable already as the Scots could make them. Thus we see there is no necessity of levying Ship-money, there is rather necessity of repealing it: and wee see that presumption of Law doth not abet this necessity, but rather crosse it. And whereas J. Jones further saith, That the King hath no benefite by Ship-money, and therefore presumption is the stronger, that the King will not take it causelesly; wee may answer: The Ship-money is a very great benefite to the King for if not immediatly, yet mediatly it is become a revenue, inasmuch as by this addition all other revenues of the Crowne, nay and Tunnage and Poundage, which were not designed only for ordinary expences, but for extraordinary imployments, and publicke charges also, are now become discharged of that tie, & the Common-wealth hath lost all its interest and property in them. In point of benefit therefore it is all one to the King, and in point of burthen it is all one to the subject, whether Ship-money bee accounted of as part of the King’s annuall rents, or no, since by it his rents are enlarged: and as to the subject there is no obligation, that this levie shall not hereafter incorporate with the rest of the King’s In-traders and be swallowed up as Tunnage and Poundage now are. Thus we see what the necessitie is, and presumption of Law, which was so much insisted upon; and yet for a further confutation of both, Time, the mother of Truth, hath now given us more light. Now that great danger which was pretended so many years together for the necessity of raising so great supplies of treasure, is as a small cloud blown over, making it apparant that Kings may bee mis-informed; and by mis-information take Molehils for Mountaines, and cast heavie burthens upon their subjects.

3. But I come now to my 3d Difficultie, How a publick charge is to be laid upon the kingdome. The Law runs generally, that in England Edition: current; Page: [114] no Tollage or pecuniary charge may bee imposed Fors que per common assent de tout la Realme, or, Sinon per common consent de Parliament. Some presidents, or matters of fact appeare, wherein some Kings have divers times invaded this right of the subject, but upon conference had with the Judges, or petition in Parliament, redresse was ever made, and the subject’s right re-established. All the colour which can be brought to answer the Law in our case, is, that the words of the law are general of Taxes & Tollages, but do not by special mention restrain extraordinary danger. But wee know the Petition of Right, 3. Car. is grounded upon former Statutes, and recites divers of them, and is a cleare affirmance of the common right of England; and yet by that the commissions for Loanes were damned. And it is evident that those Loanes were demanded for the generall defence of the Kingdome in time of imminent danger; and by the same Statute, not only Loanes, but all other levies of money upon what pretence of danger soever, Si non per common consent, are condemned as illegall, and contrary to the Lawes and Rights of England. Two things therefore are objected against Parliaments: First, that they are of slow motion, and so most of the Judges alledge. Secondly, that they may be perverse, and refuse due aid to the King, and so J. Crawly boldly suggests. For answer we say in generall: First, that it is the wisdome of the Kings to be alwayes vigilant, and to have their eyes so open upon forraigne Princes, and to maintaine such intelligence that no preparation from abroad may surprize them before recourse had to Parliament; and this is very easie to Insular Princes, who have a competent strength of shipping, Secondly, to have alwayes in readinesse against all sudden surprizes, a sufficient store of amunition and arms both for sea and land-service: and the revenues of the Crowne of England are sufficient for this purpose, and have been held more than sufficient in former times, when hostility was greater, and the Kingdome smaller. Thirdly, to seek advice and assistance from Parliaments, frequently in times of quiet, as well as of Edition: current; Page: [115] danger, as well when war is but smoking, or kindling, as when it is blowne into a flame. Before the conquest this was held policie, and since in Edward the third’s time, a statute past to this purpose; and if Parliaments of late be growne into dislike, it is not because their vertue is decayed, it is because the corruption of the times cannot endure such sharp remedies. Fourthly, to speak particularly of this case of ship-mony, we say that it is a course more slow than by Parliament: there was more expedition used in Parliament to supply King Charles, since he came to the Crowne, than can this way. And we say moreover, that as the extremity of the Kingdom was when Ship-money was demanded, whatsoever was pretended to the contrary, a Parliament might have beene timely enough called, and seasonably enough supplied the King. As to the second objection of J. Crawly, too unfit to come out of any honest wise man’s mouth, but much more for a Judge’s, Judge Crooke replies, that as there is nullum iniquum in Lege, so neither in Parliamento.15 The three noted factions which are adverse to Parliaments, are the Papists, the Prelates, and Court Parasites; and these may be therefore supposed to hate Parliaments, because they know themselves hatefull to Parliaments. It is scarce possible for the King to finde out any other that thinkes ill of Parliaments or is ill thought of by Parliaments. Of Papists little need to bee said, their enmity is confest, they have little to pretend for themselves, but that Parliaments are grown Puritanicall. The Prelates thinke themselves not to have jurisdiction and power enough; and they know that Parliaments think they have too much, and abuse that which they have much more: therefore to uphold themselves, and to crush their ill-willers, they not only tax Parliaments of Puritanisme, but all Puritans of sedition. As much as in them lies, they wed the King to their quarrell, perswading him that Parliaments out of Puritanisme, doe not so much aime at the fall of Episcopacie, as Edition: current; Page: [116] Monarchy: and that Episcopacie is the support of Monarchy, so that both must stand and fall together. Howbeit because they cannot upbraid Parliaments of attempting anything against Monarchy further than to maintaine due liberty, therefore they preach an unlimitable prerogative, and condemne all law of liberty as injurious to Kings, and incompatible with Monarchy. Manwarring denies Parliamentary power and honour, Cowel16 denies propriety of goods, further than at the King’s discretion, and Harrison17 accuses Judge Hutton of delivering law against God’s Law, in the case of Ship-money. And the common Court doctrine is that Kings are boundlesse in authority, and that they only are Cesar’s friends which justifie that doctrine; and from this doctrine hath grown all the jealousies of late betweene the King and his best Subjects; and this is that venemous matter which hath lain burning, and ulcerating inwardly in the bowels of the common-wealth so long. The other enemies of Parliaments, are Court dependants, and projectors, which have taken advantage of this unnaturall dissention betwixt the King and his Subjects; and have found out meanes to live upon the spoile of both, by siding with the King, and being instruments to extend his Prerogative to the purchasing of preferment to themselves, disaffection to the King, and vexation to the common-wealth. These three factions excepted, and some few Courtiers which are carried with the current of example, or are left to speake unpleasing truths, there is scarce any man in all the King’s dominions, which doth not wish for Parliaments, as the State’s best physick, nay almost as its naturall necessary food: but I will instance in three thinges wherein Parliaments excell all other Counsells whatsoever.

1. For wisdome, no advice can be given so prudent, so profound, Edition: current; Page: [117] so universally comprehending, from any other author; it is truly said by Sir Robert Cotton, that all private single persons may deceive and bee deceived; but all cannot deceive one, nor one all.

That an inconsiderable number of Privadoes should see or know more than whole Kingdomes, is incredible: vox populi was ever reverenced as vox Dei, and Parliaments are infallible, and their acts indisputable to all but Parliaments. It is a just law, that no private man must bee wiser than Law publickly made. Our wisest Kings in England, have ever most relied upon the wisdome of Parliaments.

Secondly, no advice can bee so faithfull, so loyall, so religious and sincere, as that which proceeds from Parliaments, where so many are gathered together for God’s service in such a devout manner, we cannot but expect that God should bee amongst them: and as they have a more especiall blessing promised them; so their ends cannot be so sinister. Private men may thrive by alterations: and common calamities, but the common body can affect nothing but the common good, because nothing else can be commodious for them. Sir Robert Cotton in the life of Hen. 3. according to the Court Doctrine at this present, sayes, that in Parliament Kings are ever lesse than they should be, and the people more. If this bee spoken of irregular Kings, which will endure to heare of nothing but Prerogative government, it may carry some semblance of truth: but sure it is, good and wise Kings are ever greatest when they sit immured, as it were, in that honorable assembly: as the History of Queen Elizabeth and many of her Progenitors testifies. Tis true, Hen. the third, met with divers oppositions in Parliament. He was there upbraided, and called dilapidator regni;18 it was true that he was so, and the most unworthy of rule, that ever sate in this Throne; yet those words became not subjects. I doe not justifie, but in some part extenuate such misdemeanours; for the chiefe blame of those times is not to bee throwne upon the Peeres and Commons, Edition: current; Page: [118] but upon the King and his outlandish Parasites. It is without all question also that in those bloudy unjust times, had it not been for frequent Parliaments, and that soveraigne remedy which thereby was applied to the bleeding wounds of the Kingdome, no other helpe could have stanched them.

Even then, when Parliaments were most prevalent, and when they had so much provocation from so variable and uncapable a Prince, they did not seeke to conditionate prerogative, or to depresse Monarchy for the future, though they were a little too injurious to him in person for the present.

Since that time also many Parliaments have had to struggle for due liberty with insolent Princes, and have had power to clip the wings of Royalty; and the custome of all Europe almost besides hath seemed to give some countenance to such attempts; but the deepe wisdome, and inviolable loyalty of Parliaments to this composure of government hath beene such, that they never made any invasion upon it. As it was in all former ages, so it now remaines intire with all its glorious ensignes of honour, and all the complements of power; and may he be as odious which seekes to alter or diminish Monarchicall government for the future, as he which seekes to make it infinite, and slanders Parliaments as enemies to it, or indeavours to blow such jealousies into the King’s eares.

3. No advice can be so fit, so forcible, so effectuall for the publicke welfare, as that which is given in Parliament: if any Cabinet Counsellors could give as wise and sincere advice as Parliaments, yet it could not be so profitable, because the hearts of the people doe not goe along with any other, as with that.

That King which is potent in Parliament, as any good King may, is as it were so insconsed in the hearts of his subjects, that he is almost beyond the traines or aimes of treason and rebellion at home, nay forraigne hostility cannot pierce him, but through the sides of all his people.

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It ought to be noted also, that as the English have ever beene the most devoted servants of equall, sweetly-moderate Soveraignty; so in our English Parliaments, where the Nobility is not too prevalent, as in Denmark, nor the Comminalty, as in the Netherlands, nor the King, as in France, Justice and Policie kisse and embrace more lovingly than elsewhere. And as all the three States have alwayes more harmoniously borne their just proportionable parts in England than elsewhere, so now in these times, in these learned, knowing, religious times, we may expect more blessed counsell from Parliaments than ever, wee received heretofore. May it therefore sinke into the heart of our King to adhere to Parliaments, and to abhorre the grosse delusive suggestions of such as disparage that kinde of Councell. May he rather confide in that Community which can have no other end but their owne happinesse in his greatnesse, than in Papists, Prelates, and Projectors, to whom the publick disunion is advantagious. May hee affect that gentle Prerogative which stands with the happinesse, freedome, and riches of his people; and not that terrible Scepter which does as much avert the hearts, as it does debilitate the hands, and exhaust the purses of his Subjects. May he at last learne by experience, that the grievance of all grievances, that that mischiefe which makes all mischiefes irremediable, and almost hopelesse in England at this day, is that Parliaments are clouded, and disused, and suffered to be calumniated by the ill boding incendiaries of our State. May it lastly enter into his beleefe, that it is impossible for any Kingdome to deny publicke assent for their Prince’s aid, either in Parliament or out, when publicke danger is truly imminent, and when it is fairely required, and not by projects extorted: that no Nation can unnaturally seeke its owne ruine, but that all Kings, like Constantine, may make their Subjects’ purses their owne private coffers, if they will demand due things, at due times, and by due meanes.

4. I come now to the last difficulty about the condition and nature of such aides as are due by Law from the Subject to the King. Edition: current; Page: [120] Though much hath beene argued both at the barre and on the Bench, for the King, that he may raise monies from his Subjects, without consent by law, prerogative, and necessity. Yet at last, because the Petition of Right absolutely crosses this tenet, it is restored to us backe againe, and yeelded, that the King may not impose a pecuniary charge by way of Tollage, but only a personall one by way of service. And now all our controversie ends in this, that we must contest, whether the Ship-scot be a pecuniary, or a personall charge. For though the intent of the Writ, and the office of the Sheriffe be to raise monies only, yet the words of the Writ, and the pretence of State, is to build and prepare Ships of warre. The Kingdome generally takes this to bee a meere delusion and imposture, and doubtlesse it is but a picklock tricke, to overthrow all liberty and propriety of goods, and it is a great shame that so many Judges should be abetters to such fraudulent practice contrived against the State. It is not lawfull for the King to demand monies as monies, but it is lawfull to demand monies under another wrong name, and under this wrong name all former Lawes and Liberties shall be as absolutely cancelled, as if they had beene meere cobwebs, or enacted only out of meere derision. If former laws made to guard propriety of goods were just, and grounded upon good reason, why are they by this grosse fallacy, or childish abuse defeated. If they were not just, or reasonable, what needs such a fond subtiltie as this? Why should not they bee fairely avoided by Law? Why were they made at all? But be this invention what it will, yet wee see it is new; if it be quashed, the State is but where it was, we are still as our Ancestors left us; and since our preceeding Kings never heretofore put it in use in the most necessitous calamitous times, we may from hence infer, that the plea of State necessitie falls off of itselfe; if we admit not of this innovation, then the State suffers not; but if wee admit it, no necessity being of it, wee can frame no other reason for our so doing, but that our former franchises and priviledges were unjust, and therefore this way they must Edition: current; Page: [121] bee annulled. Some of our Judges doe prove, that if this were a personall service, yet it were void; and they cite the case of Barges, and Ballingers vessells, built truly for warre in time of imminent danger, and yet these charges upon complaint made by the Subject, were revoked, and disclaimed. But here in this case many other enormities and defects in Law are, for if ships bee intended to be built in Inland Countries, a thing impossible is injoined; and if monies be aimed at, that very aime is against Law: and if the Kingdome were to be disfranchised, it were not to bee done by an illegall way.

Besides, in the Writ, in the Assessement, in the Sheriffe’s remedie against recusants of it, in the execution of Law, by, or after Judgement, many inconveniences, errors, and mischiefes arise many wayes: and sure take the whole case as it is, and since the Creation no whole Kingdome was ever cast in such a cause before.

Besides, though the Judges ought wholly to have bent themselves upon this, to have proved this a personall service, and no pecuniary charge, they have roved after necessity, presumption of Law, and Prerogative, and scarce said anything at all hereof.

My Lord Bramston argues very eagerly, that personall services by Sea and Land are due to the King in cases of extremity, and all their records, cases, and precedents prove no more, and that men may be arrayed, and ships pressed, and that sumptibus populi;19 but there is nothing proved that the meere raising of monies in this case, is a personall service. J. Jones indeed argues to this purpose: If the Law intrust the King with so great a power over men’s persons, why not over their estates? There is cleare reason for the contrary: because the King, if he should abuse men’s personall aides, could not inrich or profit himselfe thereby, and we know it is gaine and profit, it is Auri sacra fames20 which hath power over the breasts of men. It is not ordinary for Tyrants to imbattaile hoasts of men, and make them Edition: current; Page: [122] charge upon the Sea-billowes, and then to gather up Cockles and Piwinckle shells in lieu of spoile, as one did once. But the world abounds with stories of such Princes, as have offended in abusing their power over men’s estates, and have violated all right divine and human, to attaine to such a boundless power.

Good Kings are sometimes weake in coveting boundlesse power; some affect rivality with God himselfe in power, and yet places that power in doing evill, not good: for few Kings want power to doe good, and therefore it misbecomes not sometimes good Subjects to be jealous in some things of good Kings. But J. Jones farther sayes, that Ships must be built, and without money that cannot be done: ergo. This necessity hath beene answered, and disproved already: and I now adde, that for the good of the Kingdome there is more necessity that Ship-money bee damned than maintained. Such unnaturall slavery seems to mee to bee attendant upon this all-devouring project, and such infamy to our Ancestors, our Lawes, and ourselves, nay and such danger to the King and his posterity, that I cannot imagine how any forraigne conquest should induce anything more to be detested and abhorred.

Those Kings which have beene most covetous of unconfined immoderate power, have beene the weakest in judgement, and commonly their lives have beene poore and toilsome, and their ends miserable, and violent: so that if Kings did rightly understand their owne good, none would more shunne uncontrollable absolutenesse than themselves.

How is the King of France happy in his great Prerogative? or in that terrible style of the King of Asses? Wee see that his immoderate power makes him oppresse his poore Pesants, for their condition is most deplorable, and yet set his power aside, and there is no reason why he should not be as a father to cherish them, as a God to comfort them, not as an enemy to impoverish them, as a tormentor to afflict them.

2. His oppression makes him culpable before God: he must one Edition: current; Page: [123] day render a sad account for all the evill which hee hath imposed, for all the good which he hath not procured to them. That the Vicegerent of God should doe the office of a tyrant, will be no light thing one day.

3. His sinne makes him poore: for were his Pesants suffered to get wealth and enjoy it, the whole land would be his treasury, and that treasury would containe twice as much as now it doth.

4. His poverty makes him impotent, for money being the sinewes of warre, how strong would his joints be, if all his subjects were abounding in money, as doubtlesse they would, if they wanted not liberty, and propriety? Besides, poverty depresses the spirit of a Nation: and were the King of France, King of an Infantery, as he is only of a Cavalry, were he a King of men, as he is only of beasts, had he a power over hearts as he hath over hands, that Country would be twice as puissant as it is.

5. His impotence, together with all other irregularities, and abuses is like to make his Monarchy the lesse durable. Civill wars have ever hitherto infected and macerated that goodly Country, and many times it hath been near its ruine. It now enjoys inward peace, but it doth no great exploits abroad, nor is ever likely to doe, unlesse by practising upon the distemper of other Nations. Should some other Prince practise in the like manner upon that, and propose liberty to the grieved people, much advantage might be taken: but these avisoes would better proceed from that most heroick, most terrible, most armipotent Churchman, which effects such great wonders here. Wee see hence that Princes by some gaine lose, as the whole body pines by the swelling of the spleene. We see that Rehoboam catcht at immoderate power, as the dog in the fable at a shadow, but instead of an uncertain nothing, he let fall and lost a certaine substance; and yet flatterers have scarce any other baite than this shadow of immoderate power, whereby to poison the phantasies of weake humours, undiscerning rash Princes.

My humble motion therefore is: First, that the judgement given Edition: current; Page: [124] in the Chequer Chamber for Ship-money, may bee reversed, and damned, as contrary to the right of the Subject.

Secondly, that those Judges which adhered to equity and integrity in this case, might have some honourable guerdon21 designed them.

Thirdly, that some dishonourable penalty may bee imposed upon those Judges which ill advised the King herein, and then argued as Pleaders, not as Judges; especially if any shall appeare to have solicited the betraying of the Kingdome.

Fourthly, that the meaning of our Lawes & Charters, may bee fully and expresly declared, and the force and vertue of Statutes and publicke Grants, may be vindicated from all such exceptions and objections as have beene particularly or generally made against them.

Fifthly, that a clearer solution may bee given in the foure maine points stirred, how farre prerogative is arbitrary and above Law; and how farre naturall allegeance bindes to yeeld to all demands not of Parliament: next, how the King is sole Judge of danger, as that his meere cognizance thereof shall be sufficient, though there be no appearance or probability thereof. Next, how a necessity of publicke ruine must bee concluded now, if Ship-money be not levied, when no such ruine hath been formerly, when this new plot was not devised. Lastly, how this Ship-scot pretending ships, but intending money, and really raising the same, can bee said to bee no pecuniary tollage within our Statutes, but a meere personall service.

Sixthly, that any Officers, or Ministers of State, which shall attempt to lay the like taxes hereafter upon the Subject, by vertue of the like void warrants, may be held and taken as Felons, or Traitors, or forcible Intruders.

Seventhly, that something may be inacted against forraigne or domesticall Forces also, if they shall be congregated for the like purposes; and that the subject may bee inabled by some fit and timely remedy to bee given against a military kinde of government.

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Eighthly, that the due way of publicke defence, in case of imminent and eminent danger, or actuall necessary warre, for the pressing of men, and other charges of warre, such as Cote and Conduct money,22 and all doubts thereabouts, may be made more certaine, and settled for the time to come.

Ninthly, that if the King’s ordinary Revenues now taken for the Crowne, be not sufficient to maintaine him, as our great Master, some legall order may be taken therefore, and that he may be sensible of his Subjects’ loyalty, and his Subjects live safe under him, that his enemies may finde him considerable, and his true friends usefull.

finis.
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John Pym, The Speech or Declaration

John Pym, 1584-1643

THE

SPEECH

OR

DECLARATION

OF

JOHN PYM, Esquire:

After the Recapitulation or summing up of the Charge of High-Treason,

AGAINST

THOMAS,

Earle of Strafford,

12. April, 1641.

Published by Order of the Commons House.

LONDON,

Printed for John Bartlet. 1641.

Edition: current; Page: [128]

The renowned parliamentary leader and politician John Pym was an outspoken critic of the Court. He opposed Arminianism and Catholic influences in the Church of England, and he staunchly upheld what he saw as England’s ancient constitution. Pym was educated at Oxford and entered the Middle Temple, although he was never called to the bar. His long parliamentary career began in 1614 in the reign of James I. Pym actively supported the Petition of Right in the Parliament of 1628 and later in that session conducted the Commons’ case against Roger Maynwaring. He was a leading member of the Commons in the Short Parliament and, even more important, in the Long Parliament.

Pym was convinced there was a plot to destroy parliamentary institutions and the Protestant religion. When the Long Parliament convened he demanded that those guilty of this conspiracy be punished. Prominent among those he believed culpable was Charles’s leading councillor and loyal minister, Thomas Wentworth, Earl of Strafford. Strafford’s willingness to resort to extraordinary means on behalf of his master and his high-handed administration as president of the Council of the North and lord-deputy of Ireland had made him notorious. Beyond this Strafford was believed to have urged the king to use an Irish army against the English parliament and was preparing to charge parliamentary leaders with treasonous conspiracy with the Scots.

Pym played the leading role in Strafford’s fall. He moved that a subcommittee investigate Strafford’s conduct in Ireland and later that he be impeached on a charge of high treason. This meant a trial before the House of Lords. Pym led the attack at every stage, from the collection of evidence and preparation of charges to the presentation of the Edition: current; Page: [129] case. Strafford’s trial began on 22 March 1641. The chief difficulty was that despite his overbearing tactics and possible transgressing of the royal prerogative on behalf of Charles, Strafford had not committed any act of treason against the king. Pym attempted to get around this by arguing that to endeavour the subversion of the laws of the kingdom was treason; that to come between the king and his people was treason; that the culmination of many small, perfidious acts, none of which was in itself treasonous, could constitute treason.

Strafford defended himself so ably that on 10 April with the Lords reluctant to convict, a bill of attainder was introduced into the Commons. This would simply declare Strafford guilty without the necessity of a trial. As the bill of attainder moved through the legislative process the original impeachment continued with Pym chosen by the Commons to deliver its reply to Strafford’s defense. Pym’s speech to the Lords on that occasion, published as a tract and reprinted here, sets out the Commons’ constitutional position succinctly and eloquently. He explains their notion of treason as a subversion of the laws, an introduction of an arbitrary and tyrannical government. This speech has been acclaimed as the best of Pym’s career. At least nine editions of it were printed in 1641.

Despite Pym’s efforts the impeachment was dropped. The bill of attainder, however, passed, and on 12 May Strafford was executed. Despite Charles’s promise to Strafford that he would pardon him, the king made no move to save his loyal minister. It would be one of his lasting regrets. With the onset of civil war Pym served as a leader of the parliamentary party. He would never live to see its outcome. He died in December 1643.

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The Speech or Declaration of John Pym, Esq: &c.

My Lords,

Many dayes have been spent in maintenance of the Impeachment of the Earle of Strafford, by the House of Commons, whereby he stands charged with High Treason. And your Lordships have heard his Defence with Patience, and with as much favour as Justice would allow. We have passed through our Evidence, and the Result of all this is, that it remaines clearly proved, That the Earle of Strafford hath indeavoured by his words, actions, and counsels, to subvert the Fundamentall Lawes of England and Ireland, and to introduce an Arbitrary and Tyrannicall Government.

This is the envenomed Arrow for which he inquired in the beginning of his Replication this day, which hath infected all his Bloud. This is that Intoxicating Cup, (to use his owne Metaphor) which hath tainted his Judgement, and poisoned his Heart. From hence was infused that Specificall Difference which turned his Speeches, his Actions, his Counsels into Treason; Not Cumulative, as he exprest it, as if many Misdemeanours could make one Treason; but Formally and Essentially. It is the End that doth informe Actions, and doth specificate the nature of them, making not only criminall, but even indifferent words and actions to be Treason, being done and spoken with a Treasonable intention.

That which is given me in charge, is, to shew the quality of the offence, how hainous it is in the nature, how mischievous in the effect of it; which will best appeare if it be examined by that Law, to which he himselfe appealed, that universall, that Supreme Law, Salus populi. This is the Element of all Laws, out of which they are derived; the End of all Laws, to which they are designed, and in which they are perfected. How far it stands in opposition to this Law, I shall endeavour Edition: current; Page: [131] to shew in some Considerations which I shall present to your Lordships, all arising out of the Evidence which hath been opened.

The first is this: It is an offence comprehending all other offences; here you shall finde severall Treasons, Murders, Rapines, Oppressions, Perjuries.

The Earth hath a Seminarie vertue, whereby it doth produce all Hearbs, and Plants, and other Vegetables. There is in this Crime, a Seminarie of all evils hurtfull to a State; and if you consider the reasons of it, it must needs be so. The Law is that which puts a difference betwixt good and evill, betwixt just and unjust. If you take away the Law, all things will fall into a confusion, every man will become a Law to himselfe, which in the depraved condition of human nature, must needs produce many great enormities. Lust will become a Law, and Envie will become a Law, Covetousnesse and Ambition will become Lawes; and what dictates, what decisions such Laws will produce, may easily be discerned in the late Government of Ireland.1 The Law hath a power to prevent, to restraine, to repaire evils; without this all kind of mischiefs and distempers will break in upon a State.

It is the Law that doth intitle the King to the Allegeance and service of his people; it intitles the people to the protection and justice of the King. It is God alone who subsists by himselfe, all other things subsist in a mutuall dependence and relation. He was a wise man that said, that the King subsisted by the field that is tilled. It is the labour of the people that supports the Crowne. If you take away the protection of the King, the vigour and cheerfulness of Allegeance will be taken away, though the Obligation remaine.

The Law is the Boundarie, the Measure betwixt the King’s Prerogative, and the People’s Liberty. Whiles these move in their owne Orbe, they are a support and security to one another; The Prerogative a cover Edition: current; Page: [132] and defence to the Liberty of the people, and the people by their liberty are enabled to be a foundation to the Prerogative; but if these bounds be so removed, that they enter into contestation and conflict, one of these mischiefes must needs ensue. If the Prerogative of the King overwhelm the liberty of the people, it will be turned into Tyrannie; if liberty undermine the Prerogative, it will grow into Anarchie.

The Law is the safeguard, the custody of all private interest. Your Honours, your Lives, your Liberties and Estates are all in the keeping of the Law; without this, every man hath a like right to anything, and this is the condition into which the Irish were brought by the E. of Strafford. And the reason which he gave for it, hath more mischiefe in it than the thing itselfe, They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treason, than that word is. There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he please to those that are conquered. But if the succeeding Pacts and Agreements doe not limit and restraine that Right, what people can be secure? England hath been conquered, and Wales hath been conquered, and by this reason will be in little better case than Ireland. If the King by the Right of a Conquerour gives Lawes to his People, shall not the people by the same reason be restored to the Right of the conquered, to recover their liberty if they can? What can be more hurtfull, more pernicious to both, than such Propositions as these? And in these particulars is determined the first Consideration.

The second Consideration is this: This Arbitrary power is dangerous to the King’s Person, and dangerous to his Crown. It is apt to cherish Ambition, usurpation, and oppression in great men, and to beget sedition and discontent in the People; and both these have beene, and in reason must ever be causes of great trouble and alteration to Princes and States.

If the Histories of those Easterne Countries be perused, where Princes order their affaires according to the mischievous principles of Edition: current; Page: [133] the E. of Strafford, loose and absolved from all Rules of Government, they will be found to be frequent in combustions, full of Massacres, and of the tragicall ends of Princes. If any man shall look into our owne stories, in the times when the Laws were most neglected, he shall find them full of Commotions, of Civill distempers; whereby the Kings that then reigned, were alwayes kept in want and distresse; the people consumed with Civill wars: and by such wicked counsels as these, some of our Princes have beene brought to such miserable ends, as no honest heart can remember without horrour, and earnest Prayer, that it may never be so againe.

The third Consideration is this, The subversion of the Lawes. And this Arbitrary power, as it is dangerous to the King’s Person and to his Crowne, so is it in other respects very prejudiciall to his Majesty in his Honour, Profit, and Greatnesse; and yet these are the gildings and paintings that are put upon such counsels. These are for your Honour, for your service; whereas in truth they are contrary to both. But if I shall take off this varnish, I hope they shall then appeare in their owne native deformity, and therefore I desire to consider them by these Rules.

It cannot be for the Honour of a King, that his sacred Authority should be used in the practice of injustice and oppression; that his Name should be applied to patronize such horrid crimes, as have beene represented in Evidence against the Earle of Strafford; and yet how frequently, how presumptuously his Commands, his Letters have beene vouched throughout the course of this Defence, your Lordships have heard. When the Judges doe justice, it is the King’s justice, and this is for his honour, because he is the Fountaine of justice; but when they doe injustice, the offence is their owne. But those Officers and Ministers of the King, who are most officious in the exercise of this Arbitrarie power, they doe it commonly for their advantage; and when they are questioned for it, then they fly to the King’s interest; to his Direction. And truly my Lords, this is a very unequall distribution for Edition: current; Page: [134] the King, that the dishonour of evill courses should be cast upon him, and they to have the advantage.

The prejudice which it brings to him in regard of his profit, is no lesse apparent. It deprives him of the most beneficiall, and most certaine Revenue of his Crowne, that is, the voluntary aids and supplies of his people; his other Revenues, consisting of goodly Demeanes, and great Manors, have by Grants been alienated from the Crowne, and are now exceedingly diminished and impaired. But this Revenue it cannot be sold, it cannot be burdened with any Pensions or Annuities, but comes intirely to the Crowne. It is now almost fifteene years since his Majesty had any assistance from his people;2 and these illegall wayes of supplying the King were never prest with more violence, and art, than they have been in this time; and yet I may upon very good grounds affirm, that in the last fifteene years of Queen Elizabeth, she received more by the Bounty and Affection of her Subjects, than hath come to His Majestie’s Coffers by all the inordinate and rigorous courses which have beene taken. And as those Supplies were more beneficiall in the Receipt of them, so were they like in the use and imployment of them.

Another way of prejudice to his Majestie’s profit, is this: Such Arbitrary courses exhaust the people, and disable them, when there shall be occasion, to give such plentifull supplies, as otherwise they would doe. I shall need no other proofe of this, than the Irish Government under my E. of Strafford, where the wealth of the Kingdome is so consumed by those horrible exactions, and burdens, that it is thought the Subsidies lately granted will amount to little more than halfe the proportion of the last Subsidies. The two former wayes are hurtfull to the King’s profit, in that respect which they call Lucrum Cessans,3 by diminishing his receipts. But there is a third, fuller of mischiefe, and it is in that Edition: current; Page: [135] respect which they call Damnum emergens,4 by increasing his Disbursements. Such irregular and exorbitant attempts upon the Libertie of the people, are apt to produce such miserable distractions and distempers, as will put the King and Kingdome to such vast expences and losses in a short time, as will not be recovered in many yeares. Wee need not goe farre to seeke a proofe of this, these two last yeares will be a sufficient evidence, within which time I assure myselfe, it may be proved, that more Treasure hath beene wasted, more losse sustained by his Majesty and his Subjects, than was spent by Queene Elizabeth in all the War of Tyrone,5 and in those many brave Attempts against the King of Spaine, and the royall assistance which she gave to France, and the Low-Countries, during all her Reigne.

As for Greatnesse, this Arbitrary power is apt to hinder and impaire it, not only at home, but abroad. A Kingdome is a society of men conjoyned under one Government, for the common good. The world is a society of Kingdomes and States. The King’s greatnesse consists not only in his Dominion over his Subjects at home, but in the influence which he hath upon States abroad; That he should be great even among Kings, and by his wisdome and authority so to incline and dispose the affaires of other States and Nations, and those great events which fall out in the world, as shall be for the good of Mankind, and for the peculiar advantage of his owne people. This is the most glorious, and magnificent greatness, to be able to relieve distressed Princes, to support his owne friends and Allies, to prevent the ambitious designes of other Kings; and how much this Kingdome hath been impaired in this kinde, by the late mischievous counsels your Lordships best know, who at a neerer distance, and with a more cleare sight, doe apprehend these publique and great affaires, than I can doe. Yet thus Edition: current; Page: [136] much I dare boldly say, that if his Majestie had not with great wisdome and goodness forsaken that way wherein the Earle of Strafford had put him, we should within a short time have been brought into that miserable condition, as to have been uselesse to our friends, contemptible to our enemies, and uncapable of undertaking any great designe either at home or abroad.

A fourth Consideration is, That this Arbitrary, and Tyrannicall Power, which the E. of Strafford did excercise in his own person, and to which he did advise his Majesty, is inconsistent with the Peace, the Wealth, the Prosperity of a Nation. It is destructive to Justice, the Mother of Peace; to Industry, the spring of Wealth; to Valour, which is the active vertue whereby the prosperity of a Nation can only be procured, confirmed, and inlarged.

It is not only apt to take away Peace, and so intangle the Nation with Warres, but doth corrupt Peace, and puts such a malignity into it, as produceth the Effects of warre. We need seek no other proofe of this, but the E. of Strafford’s Government, where the Irish, both Nobility and others, had as little security of their Persons or Estates in this peaceable time, as if the Kingdome had been under the rage and fury of warre.

And as for Industrie, and Valour, who will take pains for that, which when he hath gotten, is not his own? Or who fight for that wherein he hath no other interest, but such as is subject to the will of another? The Ancient encouragement to men that were to defend their Countries was this, That they were to hazard their Persons, pro Aris & Focis, for their Religion, and for their Houses. But by this Arbitrary way which was practiced in Ireland, and counselled here, no man had any certainty, either of Religion, or of his House, or anything else to be his own. But besides this, such Arbitrary courses have an ill operation upon the courage of a Nation, by embasing the hearts of the people. A servile condition doth for the most part beget in men a slavish temper and disposition. Those that live so much under the Whip and the Pillory, Edition: current; Page: [137] and such servile Engines, as were frequently used by the E. of Strafford, they may have the dregges of valour, sullennesse, & stubbornesse, which may make them prone to Mutinies, and discontents; but those Noble and gallant affections, which put men on brave Designes and Attempts for the preservation or inlargement of a Kingdome, they are hardly capable of. Shall it be Treason to embase the King’s Coine, though but a piece of twelve-pence, or sixe-pence, and must it not needs be the effect of a greater Treason, to embase the spirits of his Subjects, and to set a stamp and Character of Servitude upon them, whereby they shall be disabled to doe anything for the service of the King or Commonwealth?

The fifth Consideration is this, That the exercise of this Arbitrary Government, in times of sudden danger, by the invasion of an enemy, will disable his Majesty to preserve himselfe and his Subjects from that danger. This is the only pretence by which the E. of Strafford, and such other mischievous Counsellors would induce his Majesty to make use of it; and if it be unfit for such an occasion, I know nothing that can be alledged in maintenance of it.

When warre threatens a Kingdome by the comming of a forrain Enemy, it is no time then to discontent the people, to make them weary of the present Government, and more inclinable to a Change. The supplies which are to come in this way, will be unready, uncertain; there can be no assurance of them, no dependence upon them, either for time or proportion. And if some money be gotten in such a way, the Distractions, Divisions, Distempers, which this course is apt to produce, will be more prejudiciall to the publique safety, than the supply can be advantagious to it; and of this we have had sufficient experience the last Summer.

The sixth, That this crime of subverting the Laws, and introducing an Arbitrary and Tyrannicall Government, is contrary to the Pact and Covenant betwixt the King and his people. That which was spoken of before, was the legall union of Allegeance and Protection; this is a personall Edition: current; Page: [138] union by mutuall agreement and stipulation, confirmed by oath on both sides. The King and his people are obliged to one another in the nearest relations; He is a Father, and a childe is called in Law, Pars Patris.6 Hee is the Husband of the Commonwealth, they have the same interests, they are inseparable in their condition, be it good or evill. He is the Head, they are the Body; there is such an incorporation as cannot be dissolved without the destruction of both.

When Justice Thorpe, in Edward the third’s time, was by the Parliament condemned to death for Bribery, the reason of that Judgement is given, because he had broken the King’s Oath, not that he had broken his own oath, but that he had broken the King’s oath, that solemne and great obligation, which is the security of the whole Kingdome. If for a Judge to take a small summe in a private cause, was adjudged Capitall, how much greater was this offence, whereby the E. of Strafford hath broken the King’s Oath in the whole course of his Government in Ireland, to the prejudice of so many of his Majestie’s Subjects, in their Lives, Liberties, and Estates, and to the danger of all the rest?

The Doctrine of the Papists, Fides non est servanda cum Haereticis,7 is an abominable Doctrine: yet that other Tenet more peculiar to the Jesuites is more pernicious, whereby Subjects are discharged from their Oath of Allegeance to their Prince whensoever the Pope pleaseth. This may be added to make the third no lesse mischievous and destructive to human society, than either of the rest: That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdome, but may when he sees cause, lay Taxes and burdens upon them without their consent, contrary to the Laws and Liberties of the Kingdome. This hath been preached and published by divers; And this is that which hath been practised in Ireland by the E. of Strafford, in his Government there, and indeavoured to be brought into England, by his Counsell here.

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The seventh is this; It is an offence that is contrary to the end of Government. The end of Government was to prevent oppressions, to limit and restrain the excessive power and violence of great men, to open the passages of Justice with indifferency towards all. This Arbitrary power is apt to induce and incourage all kind of insolencies.

Another end of Government is to preserve men in their estates, to secure them in their Lives and Liberties; but if this Designe had taken effect, and could have been setled in England, as it was practiced in Ireland, no man would have had more certainty in his own, than power would have allowed him. But these two have beene spoken of before, there are two behind more important, which have not yet been touched.

It is the end of Government, that vertue should be cherisht, vice supprest; but where this Arbitrary and unlimited power is set up, a way is open not only for the security, but for the advancement and incouragement of evill. Such men as are aptest for the execution and maintenance of this Power, are only capable of preferment; and others who will not be instruments of any unjust commands, who make a conscience to doe nothing against the Laws of the Kingdome, and Liberties of the Subject, are not only not passable for imployment, but subject to much jealousie and danger.

It is the end of Government, that all accidents and events, all Counsels and Designes should be improved to the publique good. But this Arbitrary Power is apt to dispose all to the maintenance of itselfe. The wisdome of the Councell-Table, the Authority of the Courts of Justice, the industry of all the Officers of the Crown have been most carefully exercised in this; the Learning of our Divines, the Jurisdiction of our Bishops have been moulded and disposed to the same effect, which though it were begun before the E. of Strafford’s Imployment, yet it hath beene exceedingly furthered and advanced by him.

Under this colour and pretence of maintaining the King’s Power and Prerogative many dangerous practices against the peace and safety of Edition: current; Page: [140] this Kingdome have been undertaken and promoted. The increase of Popery, and the favours and incouragement of Papists have been, and still are a great grievance and danger to the Kingdome. The Innovations in matters of Religion, the usurpations of the Clergie, the manifold burdens and taxations upon the people, have been a great cause of our present distempers and disorders; and yet those who have been chiefe Furtherers and Actors of such Mischiefes, have had their Credit and Authority from this, That they were forward to maintain this Power. The E. of Strafford had the first rise of his greatnesse from this, and in his Apologie and Defence, as your Lordships have heard, this hath had a maine part.

The Royall Power, and Majesty of Kings, is most glorious in the prosperity and happinesse of the people. The perfection of all things consists in the end for which they were ordained, God only is his own end, all other things have a further end beyond themselves, in attaining whereof their own happinesse consists. If the means and the end be set in opposition to one another, it must needs cause an impotency and defect of both.

The eighth Consideration is, The vanity and absurdity of those excuses and justifications which he made for himself, whereof divers particulars have been mentioned in the course of his Defence.

1. That he is a Counsellor, and might not be questioned for anything which he advised according to his conscience. The ground is true, there is a liberty belongs to Counsellors, and nothing corrupts Counsels more than fear. He that will have the priviledge of a Counsellor, must keep within the just bounds of a Counsellor; those matters are the proper subjects of Counsell, which in their times and occasions, may be good or beneficiall to the King or Common-wealth. But such Treasons as these, the subversion of the Laws, violation of Liberties, they can never be good, or justifiable by any circumstance, or occasion; and therefore his being a Counsellor, makes his fault much more hainous, Edition: current; Page: [141] as being committed against a greater Trust, and in a way of much mischiefe and danger, lest his Majestie’s conscience and judgment (upon which the whole course and frame of his Government do much depend) should be poisoned and infected with such wicked principles and designes. And this he hath endeavoured to doe, which by all Lawes, and in all times hath in this Kingdome beene reckoned a Crime of an high Nature.

2. He labours to interest your Lordships in his cause, by alledging, It may be dangerous to yourselves, and your Posterity, who by your birth are fittest to be near his Majesty, in places of Trust and Authority, if you should be subject to be questioned for matters delivered in Counsell. To this was answered, that it was hoped their Lordships would rather labour to secure themselves, and their posterity, in the exercise of their vertues, than of their vices, that so they might together with their own honour and greatnesse, preserve the honour and greatnesse, both of the King and Kingdome.

3. Another excuse was this, that whatsoever he hath spoken was out of a good intention. Sometimes good and evill, truth and falshood lie so near together, that they are hardly to be distinguished. Matters hurtfull and dangerous may be accompanied with such circumstances as may make it appeare usefull and convenient, and in all such cases, good intentions will justifie evill Counsell. But where the matters propounded are evill in their own nature, such as the matters are wherewith the E. of Strafford is charged, to break a publique faith, to subvert Laws and Government, they can never be justified by any intentions, how specious, or good soever they be pretended.

4. He alledgeth it was a time of great necessity and danger, when such counsels were necessary for preservation of the State. Necessity hath been spoken of before, as it relates to the Cause; now it is considered as it relates to the Person; if there were any necessity, it was of his own making; he by his evil counsell had brought the King into a Edition: current; Page: [142] necessity, and by no Rules of Justice, can be allowed to gain this advantage by his own fault, as to make that a ground of his justification, which is a great part of his offence.

5. He hath often insinuated this, That it was for his Majestie’s service in maintenance of the Soveraign Power with which he is intrusted by God for the good of his people. The Answer is this, No doubt but that Soveraign Power wherewith his Majesty is intrusted for the publique good, hath many glorious effects, the better to inable him thereunto. But without doubt this is none of them, That by his own will he may lay any Taxe or Imposition upon his people without their consent in Parliament. This hath now been five times adjudged by both Houses. In the Case of the Loanes, In condemning the Commission of Excise, In the Resolution upon the Saving8 offered to be added to the Petition of Right, In the sentence against Manwaring, and now lately, In condemning the Shipmoney. And if the Soveraigne Power of the King can produce no such effect as this, the Allegation of it is an Aggravation, and no Diminution of his offence, because thereby he doth labour to interest the King against the just grievance and complaint of the People.

6. This Counsell was propounded with divers limitations, and Provisions; for securing and repairing the liberty of the people. This implies a contradiction to maintain an Arbitrary & absolute Power, and yet to restrain it with limitations, and provisions; for even those limitations and provisions will be subject to the same absolute Power, and to be dispensed in such manner, and at such time, as itself shall determine; let the grievances and oppressions be never so heavy, the Subject is left without all remedy, but at his Majestie’s own pleasure.

7. He alledgeth, they were but words, and no effect followed. This needs no answer, but that the miserable distempers into which he hath Edition: current; Page: [143] brought all the three Kingdomes, will be evidence sufficient that his wicked Counsels have had such mischievous effects within these two or three last years, that many years’ peace will hardly repaire those losses, and other great mischiefes which the Common-wealth hath sustained.

These excuses have been collected out of the severall parts of his Defence; perchance some others are omitted, which I doubt not have been answered by some of my Colleagues, and are of no importance, either to perplex or to hinder your Lordships’ judgement, touching the hainousnesse of this Crime.

The ninth Consideration is this, That if this be Treason, in the nature of it, it doth exceed all other Treasons in this, That in the Design, and endeavour of the Author, it was to be a constant and a permanent Treason; other Treasons are transient, as being confined within those particular actions and proportions wherein they did consist, and those being past, the Treason ceaseth.

The Powder Treason9 was full of horror and malignity, yet it is past many years since. The murder of that Magnanimous and glorious King, Henry the fourth of France, was a great and horrid Treason. And so were those manifold attempts against Queen Elizabeth of blessed memory; but they are long since past, the Detestation of them only remains in Histories, and in the minds of men; and will ever remain. But this Treason, if it had taken effect, was to be a standing, perpetuall Treason, which would have been in continuall act, not determined within one time or age, but transmitted to Posterity, even from generation to generation.

The tenth Consideration is this, That as it is a Crime odious in the nature of it, so it is odious in the judgement and estimation of the Law. To alter the setled frame and constitution of Government, is Edition: current; Page: [144] Treason in any estate. The Laws whereby all other parts of a Kingdome are preserved, should be very vain and defective, if they had not a power to secure and preserve themselves.

The forfeitures inflicted for Treason by our Law, are of Life, Honour, and Estate, even all that can be forfeited, and this Prisoner having committed so many Treasons, although he should pay all these forfeitures, will be still a Debtor to the Common-wealth. Nothing can be more equall than that he should perish by the Justice of that Law which he would have subverted. Neither will this be a new way of bloud. There are marks enough to trace this Law to the very originall of this Kingdome. And if it hath not been put in execution, as he alledgeth, this 240 years, it was not for want of Law, but that all that time hath not bred a man bold enough to commit such Crimes as these; which is a circumstance much aggravating his offence, and making him no whit lesse liable to punishment, because he is the only man that in so long a time hath ventured upon such a Treason as this.

It belongs to the charge of another to make it appear to your Lordships, that the Crimes and Offences proved against the Earle of Strafford, are High Treason by the Lawes and Statutes of this Realm, whose learning and other abilities are much better for that service. But for the time and manner of performing this, we are to resort to the Direction of the House of Commons, having in this which is already done, dispatched all those instructions which wee have received; and concerning further proceedings, for clearing all Questions and Objections in Law, your Lordships will hear from the House of Commons in convenient time.

finis.
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Charles I, XIX Propositions Made by Parliament

Charles I, 1600-1649

XIX.

PROPOSITIONS

Made

By both Houses of Parliament, to the Kings most Excellent Majestie:

With His Majesties Answer thereunto.

¶By the King.

Our expresse pleasure is, That this Our Answer be read and published throughout all Churches and Chappels of the Kingdom of England and Dominion of Wales,

By the severall Parsons, Vicars, or Curats of the same.

YORK:

Printed by Robert Barker, Printer to the Kings most Excellent Majestie: And by the Assignes of John Bill.

1642.

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After Charles abandoned London in January 1642 for what he hoped would be the more loyal North, the two houses of Parliament at Westminster attempted to negotiate with him through a series of published declarations, remonstrances, answers, and open letters. These reached a constitutional climax in June with Parliament’s publication on 1 June of the Nineteen Propositions, proposals that would have sharply and permanently circumscribed the king’s powers, and Charles’s response on 18 June.

Charles’s “Answer to the Nineteen Propositions” has become even more famous than the propositions themselves. This answer has been heralded for its endorsement of England’s mixed and balanced constitution and for its reliance upon law for support. Of chief significance, however, is the king’s acceptance of the concept that he is not above the three estates assembled in Parliament but in fact is one of the three estates. The Answer was written for Charles by two of his moderate advisers, Sir John Colepeper and Lucius Cary, Viscount Falkland—men who had worked in the Long Parliament the previous year to rein in the expanded royal prerogative. The passage in which the king endorses the idea of being one of three estates in Parliament—thus excluding the bishops from membership and reducing the position of the Crown to coordinate membership—was penned by Colepeper. It is unclear whether Falkland fully endorsed the Answer’s Edition: current; Page: [147] concession that the king was one of the three estates. He later pleaded inadvertence, claimed Colepeper had been misled by some lawyers, and that clergymen had misunderstood. Sir Edward Hyde, the best known of Charles’s moderate advisers, was unhappy with the concession and tried to delay publication. It is even unclear whether the king actually read the crucial passage, although he assuredly glanced at, and gave his approval to, the lengthy reply. In important respects it does not reflect views Charles espoused before or afterward.

Whatever confusion reigned among the king’s advisers, however willingly, reluctantly, or unknowingly the king complied, the Answer publicly altered the basis of royal defense and argument.

There is much of interest in the entire reply. Because historians have focused almost exclusively upon its crucial constitutional concessions, however, the answer has seldom been reprinted in its entirety. As a result its tone has been misread. The reply reprinted here was published by royal order at York and is unusual in providing the text of both the Nineteen Propositions and the king’s Answer. In earnest of the king’s desire that the Answer be widely published and read in churches throughout England and Wales, six further editions were printed in 1642. It is notable that two editions published in 1643 either omitted the reference to the three estates of Parliament or the entire section on the English constitution.

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XIX. Propositions made by both Houses of Parliament, to the Kings most excellent Majestie, touching the differences between His Majestie and the said Houses.

Your Majestie’s most humble and faithfull Subjects, the Lords and Commons in Parliament, having nothing in their thoughts and desires more precious and of higher esteem (next to the Honour and immediate Service of God) than the just and faithfull performance of their Dutie to your Majestie and this Kingdom, and being very sensible of the great distractions and distempers, and of the imminent Dangers and Calamities which those Distractions and Distempers are like to bring upon your Majestie and your Subjects: All which have proceeded from the subtill Insinuations, mischievous Practises, and evill Counsels of Men disaffected to God’s true Religion, your Majestie’s Honor and Safetie, and the publike Peace and Prosperitie of your people: After a serious observation of the Causes of those Mischiefs, do in all Humilitie and Sinceritie present to your Majestie their most dutifull Petition and Advice; That out of your Princely Wisdom, for the establishing your own Honour and Safetie, and gracious tendernesse of the welfare and securitie of your Subjects and Dominions, You will be pleased to Grant and Accept these their humble Desires and Propositions, as the most necessarie effectuall means, through God’s blessing, of removing those Jealousies and Differences which have unhappily fallen betwixt You and your People, and procuring both your Majestie and them a constant course of Honour, Peace, and Happinesse.

I. That the Lords, and others of your Majestie’s Privie Councell, and such great Officers and Ministers of State, either at home or beyond the Seas, may be put from your Privie Councell, and from those Offices and Imployments, excepting such as shall be approved of by both Houses of Parliament; And that the Persons put into the Places Edition: current; Page: [149] and Imployments of those that are removed, may be approved of by both Houses of Parliament; And that all Privie Councellors shall take an Oath for the due execution of their Places, in such forme as shall be agreed upon by both Houses of Parliament.

II. That the great Affairs of the Kingdom may not be Concluded or Transacted by the Advise of private men, or by any unknown or unsworn Councellors; but that such Matters as concern the Publike, and are proper for the high Court of Parliament, which is your Majestie’s great and supreme Councell, may be Debated, Resolved, and Transacted only in Parliament, and not elsewhere. And such as shall presume to do anything to the contrary, shall be reserved to the Censure and Judgement of Parliament: And such other matters of State as are proper for your Majestie’s Privie Councell, shall be debated and concluded by such of the Nobility and Others, as shall from time to time be chosen for that place by approbation of both Houses of Parliament. That no publicke Act concerning the Affairs of the Kingdom, which are proper for your Privie Councell, may be esteemed of any validity, as proceeding from the Royall Authority, unlesse it be done by the advice and consent of the major part of your Councell, attested under their hands. And that your Councell may be limited to a certain number, not exceeding five and twenty, nor under fifteen; and if any Councellor’s place happen to be void in the Intervals of Parliament, it shall not be supplied without the Assent of the major part of the Councell; which choice shall be confirmed at the next sitting of the Parliament, or else to be void.

III. That the Lord high Steward of England, Lord high Constable, Lord Chancellour, or Lord Keeper of the great Seal, Lord Treasurer, Lord Privie Seal, the Earle Marshall, Lord Admirall, Warden of the Cinque-Ports, chief Governour of Ireland, Chancellour of the Exchequer, Master of the Wards, Secretaries of State, two chief Justices, and chief Baron, may be alwayes chosen with the approbation of both Edition: current; Page: [150] Houses of Parliament: And in the Intervals of Parliaments by assent of the major part of the Councell, in such manner as is before expressed in the choice of Councellors.

IV. That he or they unto whom the Government and education of the King’s Children shall be committed, shall be approved of by both Houses of Parliament; and in the Intervals of Parliaments, by the assent of the major part of the Councell, in such manner as is before exprest in the choice of Councellors: And that all such Servants as are now about them, against whom both Houses shall have any just exception, shall be removed.

V. That no Marriage shall be Concluded, or Treated for any of the King’s Children, with any Forraign Prince, or other Person whatsoever abroad, or at home, without the consent of Parliament, under the penalty of a Premunire unto such as shall so Conclude or Treate any Marriage as aforesaid. And that the said Penalty shall not be pardoned or dispensed with, but by the consent of both Houses of Parliament.

VI. That the Laws in force against Jesuites, Priests, and Popish Recusants, be strictly put in execution, without any Toleration or Dispensation to the contrary; and that some more effectuall Course may be Enacted, by Authoritie of Parliament, to disable them from making any disturbance in the State, or eluding the Law by Trusts, or otherwise.

VII. That the Votes of Popish Lords in the House of Peers, may be taken away, so long as they continue Papists; and that His Majestie would consent to such a Bill as shall be drawn for the Education of the Children of Papists by Protestants in the Protestant Religion.

VIII. That your Majestie will be pleased to Consent, That such a Reformation be made of the Church-Government, and Liturgie as both Houses of Parliament shall advise, wherein they intend to have Consultations with Divines, as is expressed in the Declaration to that Edition: current; Page: [151] purpose; and that your Majestie will contribute your best Assistance to them for the raising of a sufficient Maintenance for Preaching Ministers thorowout the Kingdom: And that your Majestie will be pleased to give your consent to Laws for the taking away of Innovations and Superstition, and of Pluralities, and against Scandalous Ministers.

IX. That your Majestie will be pleased to rest satisfied with that Course that the Lords and Commons have appointed for Ordering the Militia,1 untill the same shall be further setled by a Bill: And that you will recall your Declarations and Proclamations against the Ordinance made by the Lords and Commons concerning it.

X. That such Members of either House of Parliament, as have, during this present Parliament, been put out of any Place and Office,2 may either be restored to that Place and Office, or otherwise have satisfaction for the same, upon the Petition of that House, whereof he or they are Members.

XI. That all Privie Councellors and Judges may take an Oath, the form whereof to be agreed on, and setled by Act of Parliament, for the maintaining of the Petition of Right, and of certain Statutes made by this Parliament, which shall be mentioned by both Houses of Parliament: And that an enquiry of the Breaches and Violations of those Laws may be given in charge by the Justices of the King’s-Bench every Tearm, and by the Judges of Assize in their Circuits, and Justices of Peace at the Sessions, to be presented and punished according to Law.

XII. That all the Judges and all Officers placed by approbation of Edition: current; Page: [152] both Houses of Parliament, may hold their Places, Quam diu bene se gesserint.3

XIII. That the justice of Parliament may passe upon all Delinquents, whether they be within the Kingdom, or fled out of it; And that all Persons cited by either House of Parliament, may appear and abide the censure of Parliament.

XIIII. That the Generall Pardon offered by your Majestie, may be granted with such Exceptions, as shall be advised by both Houses of Parliament.

XV. That the Forts and Castles of this Kingdom, may be put under the Command and Custody of such Persons as your Majestie shall appoint, with the approbation of your Parliaments: and in the intervals of Parliament, with the approbation of the major part of the Councell, in such manner as is before expressed in the choice of Councellors.

XVI. That the extraordinary Guards, and Millitary Forces,4 now attending your Majestie, may be removed and discharged; and that for the future you will raise no such Guards or extraordinary Forces, but according to the Law, in case of actuall Rebellion or Invasion.

XVII. That your Majestie will be pleased to enter into a more strict Alliance with the States of the United Provinces, and other neighbour Princes and States of the Protestant Religion, for the defence and maintenance thereof against all Designes and Attempts of the Pope and his Adherents, to subvert and suppresse it, whereby your Majestie will obtain a great accesse of Strength and Reputation, and your Subjects be much encouraged and enabled in a Parliamentary way, for your aid and assistance in restoring your Royall Sister and her Princely Issue to those Dignities and Dominions which belong Edition: current; Page: [153] unto them,5 and relieving the other distressed Protestant Princes who have suffered in the same Cause.

XVIII. That your Majestie will be pleased, by Act of Parliament, to cleer the Lord Kimbolton, and the five Members of the House of Commons,6 in such manner that future Parliaments may be secured from the consequence of that evill precedent.

XIX. That your Majestie will be graciously pleased to passe a Bill for restraining Peers made hereafter from Sitting or Voting in Parliament; unlesse they be admitted thereunto with the consent of both Houses of Parliament.

And these our humble desires being granted by your Majestie, we shall forthwith apply ourselves to regulate your present Revenue, in such sort, as may be for your best advantage; and likewise to settle such an ordinary and constant increase of it as shall be sufficient to support your Royall Dignitie in Honour and plenty, beyond the proportion of any former Grants of the Subjects of this Kingdom to your Majestie’s Royall Predecessors. We shall likewise put the Town of Hull into such hands as your Majestie shall appoint,7 with the Consent and Approbation of Parliament; and deliver up a just accompt of all the Magazine; and cheerfully imploy the uttermost of our Power and Endeavour in the reall expression and performance of our most Edition: current; Page: [154] dutifull and loyall affections to the preserving and maintaining the Royall Honour, Greatnesse, and Safetie of your Majestie and your Posterity.

His Majesties Answer to the Nineteen Propositions of Both Houses of Parliament.

Before we shall give you Our Answer to your Petition and Propositions, we shall tell you, That we are now cleerly satisfied, why the Method, which we traced out to you by Our Message of the twentieth of January,8 and have since so often pressed upon you, as the proper way to compose the Distractions of this Kingdom, and render it truly happy, hath been hitherto declined, and is at length thought fit to be lookt upon. We now see plainly (and desire that you, and all other Our good Subjects, should do so too) that the Caballists of this Businesse, have, with great prudence, reserved themselves untill due preparations should be made for their designe.

If they had unseasonably vented such Propositions, as the wisdom and modesty of your Predecessors never thought fit to offer to any of Our Progenitors, nor We in honour or regard to Our Regall Authoritie (which God hath intrusted Us with for the good of Our people) could receive without just indignation, (and such many of your present Propositions are) their hopes would soon have been blasted, and those persons to whom Offices, Honours, Power and Commands were designed, by such ill-timing of their Businesse, would have failed of their expectation, not without a brand upon the attempt. Therefore, before any of this nature should appear, they have (certainly with great wisdom in the conduct of it) thought fit to remove a troublesome rub in their way, the Law. To this end (that they Edition: current; Page: [155] might undermine the very foundations of it) a new Power hath been assumed to interpret and declare Laws without Us, by extemporary Votes, without any case judicially before either house, (which is in effect the same thing as to make Laws without Us) Orders and Ordinances made only by both houses (tending to a pure Arbitrary power) were pressed upon the people, as Laws, and their obedience required to them.

Their next step was to erect an upstart Authority without Us (in whom, and only in whom, the Laws of this Realm have placed that power) to command the Militia; (very considerable to this their designe). In further Order to it, they have wrested from Us Our Magazine and Town of Hull, and bestird Sir John Hotham in his boldfaced Treason.9 They have prepared and directed to the people, unprecedented Invectives against Our Government, thereby (as much as lay in their power) to weaken Our just Authoritie and due esteem amongst them. They have as injuriously, as presumptuously (though we conceive by this time Impudence itself is ashamed of it) attempted to cast upon Us Aspersions of an unheard of nature, as if We had favoured a Rebellion in Our own bowels. They have likewise broached new Doctrine, That we are obliged to passe all Laws that shall be offered to Us by both Houses (howsoever Our own Judgement and Conscience shall be unsatisfied with them) a point of policie, as proper for their present businesse, as destructive to all Our Rights of Parliament. And so with strange shamelesnesse will forget a clause in a Law still in force, made in the second yeer of King Henry the fifth, wherein both Houses of Parliament do acknowledge, That it is of the King’s Regalitie to grant or deny such of their Petitions as pleaseth himself. They have interpreted Our necessary Guard, legally assembled for the defence of Us and Our Children’s Persons, against a Traitor in open Rebellion against Us, to be with intent to levie war Edition: current; Page: [156] against Our Parliament (the thought whereof Our very soul abhorreth) thereby to render Us odious to Our people. They have so awed Our good Subjects with Pursuivants,10 long chargeable Attendance, heavie Censures, & illegal Imprisonments, that few of them durst offer to present their tendernesse of Our sufferings, their own just grievances, and their sense of those violations of the Law (the birthright of every Subject of this Kingdom) though in an humble Petition directed to both Houses; and if any did, it was stifled in the birth, called Sedition, and burnt by the common Hangman. They have restrained the attendance of Our ordinary and necessary houshold servants, and seized upon those small sums of Money which Our credit had provided to buy Us Bread; with Injunctions, That none shall be suffered to be conveyed or returned to Us to York, or any of Our Peers or Servants with Us; so that (in effect) they have blocked Us up in that County. They have filled the ears of the people with the noise of Fears and Jealousies (though taken up upon trust) tales of Skippers, Salt Fleets, and such like, by which alarms they might prepare them to receive such impressions as might best advance this Designe, when it should be ripe. And now, it seems, they think We are sufficiently prepared for these bitter Pills. We are in a handsome posture to receive these humble desires (which probably are intended to make way for a superfetation or a (yet) higher nature (if we had not made this discovery to you) for they doe not tell Us this is all). In them We must observe, That these Contrivers (the better to advance their true ends) disguised, as much as they could their intents, with a mixture of some things really to be approved by every honest man; others, specious and popular and some which are already granted by Us. All which are cunningly twisted and mixed with those other things of their main designe of ambition and private Interest, in hope that at the Edition: current; Page: [157] first view, every eye may not so cleerly discern them in their proper colours.

We would not be understood, That We intend to fix this Designe upon both, or either House of Parliament, We utterly professe against it, being most confidenct of the Loyaltie, good Affections, and Integritie of the Intentions of that great Bodie; and knowing well, That very many of both Houses were absent, and many dissented from all those particulars We complain of. But we do beleeve, and accordingly professe to all the world, That the malignity of this Designe (as dangerous to the Laws of this Kingdom, the Peace of the same, and Liberties of all Our good Subjects, as to Ourself and Our just Prerogative) hath proceeded from the subtill Informations, mischievous Practises, and evill Counsels, of ambitious, turbulent Spirits, disaffected to God’s true Religion, and the unity of the Professors thereof, Our Honour and Safety, and the publike Peace and Prosperitie of Our people, not without a strong Influence upon the very Actions of both Houses. But how faultie soever others are, We shall (with God’s assistance) endeavour to discharge Our dutie with uprightnesse of heart. And therefore since these Propositions come to Us in the name of both Houses of Parliament, We shall take a more particular notice of every of them.

If the 1. 2. 3. 4. 5. 9. 10. 15. 16. 19. Demands had been writ and printed in a tongue unknown to Us and Our people, it might have been possible We and they might have charitably beleeved the Propositions to be such, as might have been in Order to the ends pretended in the Petition, (to wit) The establishing of Our Honour and Safetie, the welfare and securitie of Our Subjects and Dominions, & the removing those Jealousies and Differences, which are said to have unhappily fallen betwixt Us and Our people, and procuring both Us and them a constant course of Honour, Peace, and Happinesse. But being read and understood by all, We cannot but assure Ourself, that Edition: current; Page: [158] this Profession joined to these Propositions, will rather appear a Mockery and a Scorn. The Demands being such, as we were unworthy of the trust reposed in Us by the Law, and of Our dessent, from so many great and famous Ancestors, if We could be brought to abandon that power which only can inable Us to perform what We are sworn to, in protecting Our people and the Laws, and so assume others into it, as to devest Ourself of it; although not only Our present condition (which it can hardly be) were more necessitous than it is, and We were both vanquisht, and a Prisoner, and in a worse condition than ever the most unfortunate of Our Predecessors have been reduced to, by the most criminall of their Subjects. And though the Bait laid to draw Us to it, and to keep Our Subjects from Indignation at the mention of it, The promises of a plentifull and unparalleled Revenue, were reduced from generalls (which signifie nothing) to clear and certain particulars, since such a Bargain would have but too great a resemblance of that of Esau’s, if we should part with such Flowers of Our Crown as are worth all the rest of the Garland, and have been transmitted to Us from so many Ancestors, and have been found so usefull and necessary for the welfare and security of Our Subjects, for any present necessitie, or for any low and sordid considerations of wealth and gain. And therefore all Men knowing that those accommodations are most easily made and most exactly observed, that are grounded upon reasonable and equall Conditions; We have great cause to beleeve, That the Contrivers of these had no intention of setling any firm Accommodation; but to increase those Jealousies, and widen that division, which (not by Our fault) is now unhappily fallen between Us and both Houses.

It is asked, That all the Lords, and others of Our Privy Councell, and such (We know now what you mean by such, but We have cause to think you mean all) great Officers and Ministers of State, either at home, or beyond the Seas, (for Care is taken to leave out no person or place, that Our dishonour may be sure not to be bounded within Edition: current; Page: [159] this Kingdom, though no subtill Insinuations at such a distance can probably be beleeved to have been the cause of Our distractions and Dangers) should be put from Our Privie Councell, and from those Offices and Imployments, unlesse they be approved by both Houses of Parliament, how faithfull soever We have found them to Us and the Publike, and how far soever they have been from offending against any Law, the only Rule they had, or any others ought to have to walk by. We therefore, to this part of this Demand, return you this Answer, That We are willing to grant that they shall take a larger Oath than you yourselves desire in your eleventh Demand, for maintaining not of any part but of the whole Law; and We have and do assure you, that We will be carefull to make election of such persons in those places of Trust, as shall have given good Testimonies of their abilities and integreities, and against whom there can be no just cause of exception, whereon reasonably to ground a diffidence, that if We have, or shall be mistaken in Our election, We have, and do assure you, That there is no man so neer to Us in place or affection, whom We will not leave to the Justice of the Law, if you shall bring a particular Charge and sufficient Proofs against him; and that We have given you (the best pledge of the effects of such a promise on Our part, and the best securitie for the performance of their duty on theirs) a Trienniall Parliament,11 the apprehension of whose Justice will, in all probability, make them wary how they provoke it, and Us wary how We chuse such, as by the discoverie of their faults may in any degree seem to discredit Our election. But that, without any shadow of a fault objected, only perhaps because they follow their conscience, and preserve the established Laws, and agree not in such Votes, or assent not to such Bills, as some persons, who have now too great an Influence even upon both Houses, judge or seem to judge, to be for the Publique good, and as are agreeable to that new Utopia of Edition: current; Page: [160] Religion and Government, into which they endevour to transform this Kingdom; (for We remember what Names, and for what Reasons you left out in the Bill offered Us concerning the Militia, which you had yourselves recommended in the Ordinance). We will never consent to the displacing of any, whom for their former merits from, and affection to Us and the publike, We have intrusted, since We conceive, That to do so, would take away both from the affection of Our Servants, the care of Our Service, and the honour of Our Justice. And We the more wonder, that it should be askt by you of Us, since it appears by the twelfth Demand, That yourselves count it reasonable, after the present turn is served, That the Judges and Officers, who are then placed, may hold their places quam diu se bene gesserint; and We are resolved to be as carefull of those We have chosen, as you are of those you would chuse, and to remove none, till they appear to Us to have otherwise behaved themselves, or shall be evicted by legall proceedings to have done so.

But this Demand (as unreasonable as it is) is but one link of a great Chain, and but the first round of that Ladder, by which Our Just, Ancient, Regall Power is endeavoured to be fetched down to the ground: For it appears plainly, That it is not with the persons now chosen, but with Our chusing, that you are displeased: For you demand, That the persons put into the places and imployments of those, who shall be removed, may be approved by both Houses; which is so far (as to some it may at first sight appear) from being lesse than the power of nomination, that of two things (of which We will never grant either). We would sooner be content, That you should nominate, and We approve, then you approve, and We nominate; the meer nomination being so far from being anything, That if We could do no more, We would never take the pains to do that, when We should only hazard those, whom We esteemed, to the scorn of a refusall, if they happened not to be agreeable, not only to the Judgement, but to the Passion, Interest, or Humour of the present Edition: current; Page: [161] major part of either House: Not to speak now of the great Factions, Animosities, and Divisions which this Power would introduce in both Houses, between both Houses, and in the severall Countreys, for the choice of persons to be sent to that place where that power was, and between the persons that were so chosen. Neither is this strange Potion prescribed to Us only for once, for the cure of a present, pressing, desperate Disease, but for a Diet to Us and Our Posteritie. It is demanded, That Our Councellors, all chief Officers both of Law and State, Commanders of Forts and Castles, and all Peers hereafter made (as to Voting, without which how little is the rest) be approved of (that is, chosen) by them from time to time; and rather than it should ever be left to the Crown (to whom it only doth and shall belong) if any place fall void in the intermission of Parliament; the major part of the approved Councell is to approve them. Neither is it only demanded, That We should quit the power and right Our Predecessors have had of appointing Persons in these places, but for Councellors, We are to be restrained as well in the number as in the persons, and a power must be annext to these places, which their Predecessors had not; and indeed if this power were past to them, it were not fit We should be trusted to chuse those who were to be trusted as much as We.

It is demanded, That such matters as concern the publike, and are proper for the high Court of Parliament (which is Our great and supream Councell) may be debated, resolved and transacted only in Parliament, and not elsewhere, and such as presume to do anything to the contrary shall be reserved to the Censure and Judgement of Parliament, and such other matters of State, as are proper of Our Privie Councell, shall be debated and concluded by such of Our Nobility (though indeed, if being made by Us, they may not Vote without the consent of both Houses, We are rather to call them Your Nobility) and others, as shall be from time to time chosen for that place, by approbation of both Houses of Parliament; and that no publike Act concerning the affairs of the Kingdom, Edition: current; Page: [162] which are proper for Our Privie Councell, may be esteemed of any validitie, as proceeding from the Royall Authority, unlesse it be done by the Advice and Consent of the major part of Our Councell, attested under their hands: Which Demands are of that Nature, that to grant them were in effect at once to depose both Ourself and Our Posteritie.

These being past, we may be waited on bare-headed; we may have Our hand kissed; The Stile of Majestie continued to Us; And the King’s Authoritie, declared by both Houses of Parliament, may be still the Stile of your Commands. We may have Swords and Maces carried before Us, and please Ourself with the sight of a Crown and Scepter, (and yet even these Twigs would not long flourish, when the Stock upon which they grew were dead) but as to true and reall Power We should remain but the outside, but the Picture, but the signe of a King. We were ever willing that Our Parliament should Debate, Resolve, & Transact such matters as are proper for them, as far as they are proper for them. And We heartily wish, that they would be as carefull not to extend their Debates and Resolutions beyond what is proper to them, that multitudes of things punishable, and causes determinable by the Ordinarie Judicatures, may not be entertained in Parliament, and to cause a long, chargeable, fruitlesse attendance of Our people, and (by degrees) draw to you as well all the causes, as all the faults of Westminster-Hall, and divert your proper businesse. That the course of Law be no wayes diverted, much lesse disturbed, as was actually done by the stop of the proceedings against a Riot in Southwark,12 by Order of the House of Commons, in a time so riotous and tumultuous, as much increased the danger of popular Insolencies, by such a countenance to Riots, and discountenance of Law. That you descend not to the leasure of recommending Lecturers to Churches, Edition: current; Page: [163] nor ascend to the Legislative power, by commanding (the Law not having yet commanded it) that they whom you recommend be received, although neither the Parson nor Bishop do approve of them; And that the Refusers (according to the course so much formerly complained of to have been used at the Councell Table) be not sent for to attend to shew cause. At least, that you would consider Conveniencie, if not Law, and recommend none, but who are well known to you to be Orthodox, Learned, and Moderate, or at least such as have taken Orders, and are not notorious depravers of the Book of Common Prayer; A care which appeareth by the Discourses, Sermons and persons of some recommended by you, not to have been hitherto taken, and it highly concerns both you in dutie, and the Common-wealth in the consequences, that it should have been taken; That neither one estate transact what is proper for two, nor two what is proper for three, and consequently, that (contrary to Our declared will) Our Forts may not be seized; Our Arms may not be removed; Our Moneys may not be stopt; Our legall Directions may not be countermanded by you, nor We desired to countermand them Ourself, nor such entrances made upon a Reall War against Us, upon pretence of all imaginarie War against you, and a Chimaera of necessitie. So far do you passe beyond your limits, whilest you seem by your Demand to be strangely straitened within them. At least We could have wisht you would have expressed, what matters you meant as fit to be transacted only in Parliament, and what you meant by only in Parliament. You have (of late) been perswaded by the new doctrines of some few, to think that proper for your debates, which hath not used to be at all debated within those walls, but been trusted wholly with Our Predecessors and Us, and to transact those things which without the Regall Authority, since there were Kings of this Kingdom, were never transacted. It therefore concerns Us the more that you speak out, and that both We and Our people may either know the bottom of your Demands, or know them to be bottomlesse. What concerns Edition: current; Page: [164] more the Publike, and is more (indeed) proper for the high Court of Parliament, than the making of Laws, which not only ought there to be transacted, but can be transacted no where else; but then you must admit Us to be a part of the Parliament, you must not (as the sence is of this part of this Demand, if it have any) deny the freedom of Our Answer, when We have as much right to reject what We think unreasonable, as you have to propose what you think convenient or necessary; nor is it possible Our Answers either to Bills, or any other Propositions should be wholly free, if We may not use the Libertie of every one of you, and of every Subject, and receive advice (without their danger who shall give it) from any person known or unknown, sworn or unsworn, in these matters in which the Manage of Our Vote is trusted by the Law, to Our own Judgement and Conscience, which how best to inform, is (and ever shall be) left likewise to Us; and most unreasonable it were that two Estates, proposing something to the Third, that Third should be bound to take no advice, whether it were fit to passe, but from those two that did propose it. We shall ever in these things which are trusted wholly to Us by the Law, not decline to hearken to the Advice of Our great Councell, and shall use to hear willingly the free debates of Our Privie Councell (whensoever We may be suffered to have them for sending for) and they shall not be terrified from that freedom, by Votes (and Brands of Malignants, and Enemies to the State, for advising what no Law forbids to advise) but We will retain Our Power of admitting no more to any Councell than the Nature of the businesse requires, and of discoursing with whom We please, of what We please, and informing Our Understanding by debate with any Persons, who may be well able to Inform and Advise Us in some particular, though their Qualities, Education or other Abilities may not make them so fit to be of Our sworn Councell, and not tie Ourself up not to hear anymore than twenty five (and those not chosen absolutely by Us) out of a Kingdom so replenished with Judicious and Experienced Persons in severall kindes. And though Edition: current; Page: [165] we shall (with the proportionable Consideration due to them) alwayes weigh the Advices both of Our Great and Privie Councell, yet We shall also look upon their Advices, as Advices, not as Commands or Impositions; upon them as Our Councellors, not as Our Tutors and Guardians, and upon Ourself as their King, not as their Pupill, or Ward. For whatsoever of Regality were by the Modesty of Interpretation left in Us in the first part of the second Demand, as to the Parliament, is taken from Us in the second part of the same, and placed in this new fangled kinde of Councellors, whose power is such, and so expressed by it, that in all publike Acts concerning the Affairs of this Kingdom, which are proper for Our Privy Councell (for whose Advice all publike Acts are sometimes proper, though never necessary) they are desired to be admitted joint Patentees with Us in the Regalitie, and it is not plainly expressed whether they mean Us so much as a single Vote in these Affairs. But it is plain they mean Us no more at most than a single Vote in them, and no more power than every one of the rest of Our Fellow Councellors; only leave to Us, out of their respect and duty, (and that only is left of all Our ancient Power) a Choice, whether these that are thus to be joined with (or rather set over) Us, shall be fifteen; or twenty five; and great care is taken that the Oath which these Men shall take, shall be such, in the framing the form of which (though sure We are not wholly unconcerned in it) We may be wholly excluded, and that wholly reserved to be agreed upon by both Houses of Parliament.

And to shew that no more Care is taken of Our safetie, than of Our Power, after so great indignities offered to Us, and countenanced by those who were most obliged to resent them: After Our Town and Fort13 kept from Us (from which, if it were no otherwise Ours than the whole Kingdom is, We can no more legally be kept out, than out of Our whole Kingdom, which sure yourselves will not deny to be Edition: current; Page: [166] Treason). Our Arms, Our Goods sent away, and Our Money stopt from Us, Our Guards (in which We have no other Intention than to hinder the end of these things from being proportionable to their beginnings) are not only desired to be dismissed before satisfaction for the Injurie, punishments of the Injurers, and care taken for Our future Securitie from the like. But it is likewise desired (and for this Law is pretended, and might as well have been for the rest, which yet with some ingenuitie are it seems acknowledged to be but Desires of Grace) that We shall not for the future raise any Guards or extraordinarie Forces, but in case of actuall Rebellion or Invasion, which if it had been Law, and so observed in the time of Our famous Predecessors, few of those Victories which have made this Nation famous in other parts, could have been legally atchieved, nor could Our blessed Predecessor Queen Elizabeth have so defended Herself in 88. And if no Forces must be levied till Rebellions and Invasions (which will not stay for the calling of Parliaments, and their consent for raising Forces) be actuall, they must undoubtedly (at least most probably) be effectuall and prevalent.

And as neither care is taken for Our Rights, Honour, nor safetie as a Prince, so Our Rights as a private Person are endeavoured to be had from Us, it being asked, that it may be unlawfull and unpunishable, not only to conclude, but even to treat of any Marriage with any Person for Our own Children, or to place Governours about them, without consent of Parliament, and in the intermission of those, without the consent of Our good Lords of the Councell, that We may not only be in a more despicable state than any of Our Predecessors, but in a meaner and viler condition than the lowest of Our Subjects, who value no libertie they have more, than that of the free Education and Marriage of their Children, from which We are asked to debar Ourself, and have the more reason to take it ill, that We are so, because for Our choice of a Governour for Our Son, and of a Husband for Our Daughter (in which the Protestant Religion was Our principall Edition: current; Page: [167] Consideration) We conceived We had reason to expect your present thanks, and the increase of your future trusts.

We suppose these Demands by this time to appear such as the Demanders cannot be supposed to have any such reall fear of Us as hath been long pretended, they are too much in the style, not only of equals, but of Conquerors, and as little to be intended for removing of Jealousies (for which end they are said to be asked, and that is not as Merchants ask at first much more than they will take, but as most necessary to effect it, which (if they be) God help this poor Kingdom, and those who are in the hands of such Persons, whose Jealousies nothing else will remove) which indeed is such a way, as if there being differences and suits between two persons, whereof one would have from the other serverall parcells of his ancient Land, he should propose to him by way of Accommodation, that he would quit to him all those in question, with the rest of his Estate, as the most necessary and effectuall means to remove all those suits and differences. But we call God to witnesse, that as for Our Subjects’ sake these Rights are vested in Us, so for their sakes, as well as for Our own, We are resolved not to quit them, nor to subvert (though in a Parliamentary way) the ancient, equall, happy, well-poised, and never-enough commended Constitution of the Government of this Kingdom, nor to make Ourself of a King of England a Duke of Venice, and this of a Kingdom a Republique.

There being three kindes of Government amongst men, Absolute Monarchy, Aristocracy and Democracy, and all these having their particular conveniencies and inconveniencies. The experience and wisdom of your Ancestors hath so moulded this out of a mixture of these, as to give to this Kingdom (as far as human prudence can provide) the conveniencies of all three, without the inconveniencies of any one, as long as the Balance hangs even between the three Estates, and they run jointly on in their proper Chanell (begetting Verdure and Fertilitie in the Meadows on both sides) and the overflowing of Edition: current; Page: [168] either on either side raise no deluge or Inundation. The ill of absolute Monarchy is Tyrannie, the ill of Aristocracy is Faction and Division, the ills of Democracy are Tumults, Violence and Licentiousnesse. The good of Monarchy is the uniting a Nation under one Head to resist Invasion from abroad, and Insurrection at home. The good of Aristocracie is the Conjuncion of Counsell in the ablest Persons of a State for the publike benefit. The good of Democracy is Liberty, and the Courage and Industrie which Libertie begets.

In this Kingdom the Laws are jointly made by a King, by a House of Peers, and by a House of Commons chosen by the People, all having free Votes and particular Priviledges. The Government according to these Laws is trusted to the King, Power of Treaties of War and Peace, of making Peers, of chusing Officers and Councellors for State, Judges for Law, Commanders for Forts and Castles, giving Commissions for raising men to make War abroad, or to prevent or provide against Invasions or Insurrections at home, benefit of Confiscations, power of pardoning, and some more of the like kinde are placed in the King. And this kinde of regulated Monarchie having this power to preserve that Authoritie, without which it would be disabled to preserve the Laws in their Force, and the Subjects in their Liberties and Proprieties, is intended to draw to him such a Respect and Relation from the great Ones, as may hinder the ills of Division and Faction, and such a Fear and Reverence from the people, as may hinder Tumults, Violence, and Licenciousnesse. Again, that the Prince may not make use of this high and perpetuall power to the hurt of those for whose good he hath it, and make use of the name of Publike Necessitie for the gain of his private Favourites and Followers, to the detriment of his People, the House of Commons (an excellent Conserver of Libertie, but never intended for any share in Government, or the chusing of them that should govern) is solely intrusted with the first Propositions concerning the Levies of Moneys (which is the sinews as well of Peace, as War) and the Impeaching of Edition: current; Page: [169] those, who for their own ends, though countenanced by any surreptitiously gotten Command of the King, have violated that Law, which he is bound (when he knows it) to protect, and to the protection of which they were bound to advise him, at least not to serve him in the Contrary. And the Lords being trusted with a Judicatory power, are an excellent Screen and Bank between the Prince and People, to assist each against any Incroachments of the other, and by just Judgements to preserve that Law, which ought to be the Rule of every one of the three. For the better enabling them in this, beyond the Examples of any of Our Ancestors, We were willingly contented to Oblige Ourself, both to call a Parliament every three yeers, and not to dissolve it in fiftie dayes, and for the present exigent, the better to raise Money, and avoid the pressure (no lesse grievous to Us than them) Our people must have suffered by a longer continuance of so vast a charge as two great Armies, and for their greater certaintie of having sufficient time to remedie the inconveniencies arisen during so long an absence of Parliaments, and for the punishment of the Causers and Ministers of them, We yeelded up Our Right of dissolving this Parliament, expecting an extraordinarie moderation from it in gratitude for so unexampled a Grace, and little looking that any Malignant Partie should have been encouraged or enabled to have perswaded them, first to countenance the Injustices and Indignities We have endured, and then by a new way of satisfaction for what was taken from Us, to demand of Us at once to Confirm what was so taken, and to give up almost all the rest.

Since therefore the Power Legally placed in both Houses is more than sufficient to prevent and restrain the power of Tyrannie, and without the power which is now asked from Us, we shall not be able to discharge that Trust which is the end of Monarchie, since this would be a totall Subversion of the Fundamentall Laws, and that excellent Constitution of this Kingdom, which hath made this Nation so many yeers both famous and happie to a great degree of Envie; Edition: current; Page: [170] since to the power of punishing (which is alreadie in your hands according to Law) if the power of Preferring be added, We shall have nothing left for Us, but to look on; since the incroaching of one of these Estates upon the power of the other, is unhappie in the effects both to them and all the rest; since this power of at most a joint Government in Us with Our Councellors (or rather Our Guardians) will return Us to the worst kinde of Minoritie, and make Us despicable both at home and abroad, and beget eternall Factions and Dissentions (as destructive to publike Happinesse as War) both in the chosen, and the Houses that chuse them, and the people who chuse the Chusers; since so new a power will undoubtedly intoxicate persons who were not born to it, & beget not only Divisions among them as equals, but in them contempt of Us as become an equall to them, and Insolence and Injustice towards Our people, as now so much their inferiors, which will be the more grievous unto them, as suffering from those who were so lately of a neerer degree to themselves, and being to have redresse only from those that placed them, and fearing they may be inclined to preserve what they have made, both out of kindnesse and policie; since all great changes are extreamly inconvenient, and almost infallibly beget yet greater changes, which beget yet greater Inconveniencies.

Since as great an one in the Church must follow this of the Kingdom; Since the second Estate would in all probabilitie follow the Fate of the first, and by some of the same turbulent spirits Jealousies would be soon raised against them, and the like Propositions for reconciliation of Differences would be then sent to them, as they now have joined to send to Us, till (all power being vested in the House of Commons, and their number making them incapable of transacting Affairs of State with the necessary Secrecie and Expedition; those being retrusted to some close Committee) at last the Common people (who in the meantime must be flattered, and to whom Licence must be given in all their wilde humours, how contrary soever to established Edition: current; Page: [171] Law, or their own reall Good) discover this Arcanum Imperii, That all this was done by them, but not for them, grow weary of Journey-work, and set up for themselves, call Parity and Independence, Liberty; devour that Estate which had devoured the rest; Destroy all Rights and Proprieties, all distinctions of Families and Merit; And by this meanes this splendid and excellently distinguished form of Government, end in a dark equall Chaos of Confusion, and the long Line of Our many noble Ancestors in a Jack Cade, or a Wat Tyler.14

For all these Reasons to all these Demands Our Answer is, Nolumus Leges Angliae mutari.15 But this We promise, that We will be as carefull of preserving the Laws in what is supposed to concern wholly Our Subjects, as in what most concerns Ourself. For indeed We professe to beleeve, that the preservation of every Law concerns Us, those of Obedience being not secure, when those of Protection are violated. And We being most of any injured in the least violation of that, by which We enjoy the highest Rights and greatest Benefits, and are therefore obliged to defend no lesse by Our Interest, than by Our Duty, and hope that no Jealousies to the contrary shall be any longer nourished in any of Our good people, by the subtill insinuations, and secret practices of men, who for private ends are disaffected to Our Honour and Safety, and the Peace and Prosperity of Our People. And to shew you, that no just indignation at so reproachfull offers shall make Us refuse to grant what is probable to conduce to the good of Our good People, because of the ill company it comes in, We will search carefully in this heap of unreasonable Demands, for so much as We may (complying with Our Conscience, and the duty of Our Trust) assent unto, and shall accordingly agree to it.

In pursuance of which Search, in the fourth Proposition, under a Edition: current; Page: [172] Demand which would take from Us that trust which God, Nature, and the Laws of the Land have placed in Us, and of which none of you could endure to be deprived, We find something to which We give this Answer, That We have committed the principall places about Our Children to persons of Qualitie, Integritie and Pietie, with speciall regard that their tender yeers might be so seasoned with the Principles of the true Protestant Religion, as (by the blessing of God upon this Our care) this whole Kingdom may in due time reap the fruit thereof. And as We have been likewise very carefull in the choice of Servants about them, that none of them may be such, as by ill Principles, or by ill Examples to crosse Our endeavours for their Pious and Vertuous Education, so if there shall be found (for all Our care to prevent it) any person about Our Children (or about Us, which is more than you ask) against whom both Houses shall make appear to Us any just exception, We shall not only remove them, but thank you for the Information. Only We shall expect, that you shall be likewise carefull that there be no underhand dealing by any to seek faults, to make room for others to succeed in their places.

For the fifth Demand, as We will not suffer any to share with Us in Our power of Treaties, which are most improper for Parliaments, and least in those Treaties in which We are neerliest concerned, not only as a King but as a Father, yet We do (such is Our desire to give all reasonable satisfaction) assure you by the word of a King, that We shall never propose or entertain any Treaty whatsoever for the marriage of any of Our Children, without due regard to the true Protestant Profession, the good of Our Kingdoms, and the Honour of Our Family.

For the sixth Demand, concerning the Laws in force against Jesuites, Priests, and Popish Recusants, We have by many of Our Messages to you, by Our voluntarie promise to you so solemnly made never to pardon any Popish Priest, by Our strict Proclamations lately published in this point, and by the publike Examples which We have Edition: current; Page: [173] made in that case since Our Residence at York, and before at London, sufficiently expressed Our Zeal herein. Why do you then ask that in which Our own Inclination hath prevented you? And if you can yet finde any more effectuall Course to disable them from Disturbing the State or eluding the Law by trusts or otherwise, We shall willingly give Our Consent to it.

For the seventh, concerning the Votes of Popish Lords, We understand that they in discretion have withdrawn themselves from the Service of the House of Peers, (and had done so when use was publikely made of their names to asperse the Votes of that House, which was then counted as Malignant as those (who are called Our Unknown and Unsworn Councellors) are now) neither do We conceive that such a positive Law against the Votes of any whose blood give them that right, is so proper in regard of the Priviledge of Parliament, but are content, that so long as they shall not be conformable to the Doctrine and Discipline of the Church of England, they shall not be admitted to sit in the House of Peers, but only to give their Proxies to such Protestant Lords as they shall chuse, who are to dispose of them as they themselves shall think fit, without any Reference at all to the Giver.

As to the desires for a Bill for the Education of the Children of Papists by Protestants in the Protestant Profession, many about Us can witnesse with Us, That We have often delivered Our Opinion, That such a Course (with God’s blessing upon it) would be the most effectuall for the rooting out of Popery out of this Kingdom. We shall therefore thank you for it, and encourage you in it, and, when it comes unto Us, do Our Dutie; and We heartily wish, for the publike good, that the time you have spent in making Ordinances without Us, had been imployed in preparing this and other good Bills for Us.

For the eighth, touching The Reformation to be made of the Church-Government and Liturgie, We had hoped, that what We had formerly declared concerning the same, had been so sufficiently understood Edition: current; Page: [174] by you and all good Subjects, that We should not need to have expressed Ourself further in it. We told you in Our Answers to your Petition presented to Us at Hampton-Court the first of December, That for any illegall Innovations which may have crept in, We should willingly concur in the removall of them. That if Our Parliament should advise Us to call a Nationall Synode, which may duely examine such Ceremonies as give just cause of Offence to any, We should take it into Consideration, and apply Ourself to give due satisfaction therein. That We were perswaded in our Conscience, That no Church could be found upon the Earth, that professeth the true Religion with more puritie of Doctrine, than the Church of England doth, nor where the Government and Discipline are jointly more beautified, and free from Superstition, than as they are here established by Law; which (by the grace of God) We will with Constancie maintain (while We live) in their Puritie and Glorie, not only against all Invasions of Poperie, but also from the Irreverence of those many Schismaticks and Separatists, wherewith of late this Kingdom and Our City of London abounds, to the great dishonour and hazard both of Church and State; For the suppression of whom We required your timely and active assistance. We told you in Our first Declaration,16 printed by the advice of Our Privie Councell, That for differences amongst ourselves for matters indifferent in their own nature concerning Religion, We should in tendernesse to any number of our loving Subjects very willingly comply with the advice of our Parliament, that some Law might be made for the exemption of tender Consciences from punishment, or Prosecution for such Ceremonies, and in such Cases, which by the judgement of most men are held to be matters indifferent, and of some to be absolutely unlawfull; Provided, that this case should be attempted and pursued with that modestie, temper, and submission, that in the meantime the peace and quiet of the Kingdom be not disturbed, the Decencie and Comelinesse of God’s Service discountenanced, Edition: current; Page: [175] nor the Pious, Sober, Devout actions of those Reverend Persons who were the first Labourers in the blessed Reformation, or of that time, be scandalled and defamed. And We heartily wish, that others, whom it concerned, had been as ready (as their duty bound them, though they had not received it from Us) to have pursued this Caution, as We were, and still are willing and ready to make good every particular of that Promise. Nor did We only appear willing to join in so good a Work, when it should be brought Us, but prest and urged you to it by Our Message of the fourteenth of February, in these words, And because His Majestie observes great and different troubles to arise in the hearts of His People, concerning the Government and Liturgie of the Church, His Majestie is willing to declare, That He will refer the whole consideration to the wisdom of his Parliament, which He desires them to enter into speedily, that the present distractions about the same may be composed: but desires not to be pressed to any single Act on His part, till the whole be so digested and setled by both Houses, that His Majesty may cleerly see what is fit to be left, as well as what is fit to be taken away. Of which We the more hoped of a good sucesse to the generall satisfaction of Our people, because you seem in this Proposition to desire but a Reformation, and not (as is daily preached for as necessary in those many Conventicles which have within these nineteene months begun to swarm; and which, though their Leaders differ from you in this opinion, yet appear to many as countenanced by you, by not being punished by you, (few else, by reason of the Order of the House of Commons of the ninth of September, daring to do it) a destruction of the present Discipline and Liturgie. And We shall most cheerfully give Our best assistance for raising a sufficient maintenance for preaching Ministers, in such course as shall be most for the encouragement and advancement of Pietie and Learning.

For the Bills you mention, and the Consultation you intimate, knowing nothing of the particular matters of the one (though We like the Titles well) nor of the manner of the other, but from an Informer Edition: current; Page: [176] (to whom We give little credit, and We wish no man did more) common Fame, We can say nothing till We see them.

For the eleventh, We would not have the Oath of all Privie Councellors and Judges straitened to particular Statutes of one or two particular Parliaments, but extend to all Statutes of all Parliaments, and the whole Law of the Land, and shall willingly consent that an enquirie of all the breaches and violations of the Law may be given in charge by the Justices of the King’s Bench every Terme, and by the Judges of Assize in their Circuits, and Justices of Peace at the Sessions to be presented and punished according to Law.

For the seventeenth, we shall ever be most ready, (and we are sorry it should be thought needfull to move us to it) not only to joine with any (particularly with the States of the united Provinces, of which We have given a late proofe in the Match of Our Daughter) for the defence and maintenance of Protestant Religion, against all designes and attempts of the Pope and his Adherents, but singly (if need were) to oppose with Our life and fortune all such Designes in all other Nations, were they joined: And that for Considerations of Conscience, far more than any temporall end of obtaining accesse of strength & reputation, or any naturall end of restoring our Royall Sister and her Princely Issue to their dignities and Dominions though these be likewise much considered by us.

For the eighteenth, It was not Our fault, that an Act was not passed to cleere the Lord Kimbolton, and the five Members of the House of Commons, but yours, who inserted such Clauses into both the Preamble and Act (perhaps perswaded to it by some who wish not that you should in anything receive satisfaction from Us) as by passing the Preamble we must have wounded Our Honour against Our Conscience, and by another Clause have admitted a Consequence, from which We could never have been secured, by declaring, That no Member of either House, upon any Accusation of Treason, could have his Edition: current; Page: [177] Person seized without the Consent of that House, of which he is a Member, though the known Law be, That Priviledge of Parliament extends not to Treason, and if it did, any Member (the House being for a short time adjourned, and so their Consent not being so had) how treasonable soever his Intentions were, how cleerly soever known, and how suddenly soever to be executed, must have fair leave given him to go on and pursue them, no way, how legall soever, after the passing such a Clause, being left to prevent it.

To conclude, We conjure you and all men to rest satisfied with the truth of Our Professions, and the Realitie of Our Intentions, not to ask such things as deny themselves; That you declare against Tumults, and punish the Authors; That you allow Us Our Propriety in Our Towns, Arms and Goods, and Our share in the Legislative Power, which would be counted in Us, not only breach of Priviledge, but Tyrannie and Subversion of Parliaments to deny to you. And when you shall have given Us satisfaction upon those persons who have taken away the One, and recalled those Declarations (particularly that of the six and twentieth of May) and those in the point of the Militia, (Our just Rights, wherein We will no more part with than with Our Crown, lest We inable others by them to take that from Us) which would take away the other, and declined the beginnings of a War against Us, under pretence of Our Intention of making One against you. As We have never opposed the first part of the thirteenth Demand, so We shall be ready to concur with you in the latter.

And being then confident that the Credit of those Men, who desire a generall Combustion, will be so weakened with you, that they will not be able to do this Kingdom any more harm, We shall be willing to grant Our generall Pardon, with such Exceptions as shall be thought fit, and shall receive much more joy in the hope of a full and constant Happinesse of Our People in the True Religion, and under Edition: current; Page: [178] the Protection of the Law, by a blessed Union betwen Us and Our Parliament (so much desired by Us) than in any such increase of Our Own Revenue (how much soever beyond former Grants) as (when Our Subjects were wealthiest) Our Parliament could have setled upon Us.

finis.
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Henry Ferne, The Resolving of Conscience

Henry Ferne, 1602-1662

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 but is bent or seduced to subvert Religion, Laws, and Liberties) Subjects may take Arms and resist? and whether that case be now?

RESOLVED,

I. That no Conscience upon such a Supposition or Case can finde a safe and cleare ground for such resistance.

II. That no man in Conscience can be truly perswaded, that the resistance now made is such, as they themselves pretend to, that plead for it in such a case.

III. That no man in Conscience can be truly perswaded that such a case is now, that is, that the King will not discharge his trust but is bent to subvert, &c.

Whence it followeth,

That the resistance now made against the higher Power is unwarrantable, and according to the Apostle Damnable, Rom. 13.

Also that the shedding of bloud in the pursuit of this resistance is Murder.

By H. Fern D.D. &c

Woe unto them that call evil good, and good evill, that put darknesse for light, and light for darknesse, Isa. 5. 20.

O my soule come not thou into their secret. Gen. 49. 6.

Printed at Cambridge, and re-printed at

LONDON, 1642.

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Henry Ferne, an Anglican divine, was born in York and educated at Cambridge University. He first came to Charles’s attention when he preached before the king at Leicester in July 1642. Charles was so pleased with Ferne he made him his chaplain extraordinary, no ordinary chaplaincy then being vacant. That autumn Ferne’s first pamphlet, “The Resolving of Conscience upon This Question,” one of the first tracts openly on the king’s side, was published. In it Ferne wrestled with the no longer theoretical dilemma of whether there was a right for a subject to resist a king and “whether that case be now?” The tract was published at Cambridge, York, and London in four further printings. It so incensed members of the Commons that Ferne was cited that Christmas Eve to answer for it. Instead he abandoned his living in Medbourne and took refuge with the royal party at Oxford where a “second edition” of the offending tract was published in 1643.

“The Resolving of Conscience” provoked a number of impressive Edition: current; Page: [181] replies. One by Charles Herle is reprinted below. Ferne attempted to address these, and in particular Herle’s, on 18 April 1643, with a rebuttal,Conscience Satisfied,far longer than his original essay. Other works followed earning for their author a reputation as the leading royalist writer of the period. In 1644 Ferne was one of five clergymen sent to defend Anglican church government in a debate with parliamentary clergy. After the surrender of the king in 1646 Ferne retired to Yorkshire. There he remained until summoned to the Isle of Wight in 1648 by Charles, where, on 28 November, he preached the last sermon the king would hear before his trial.

Ferne lived quietly in Yorkshire writing religious treatises until the Restoration when he was rewarded with the mastership of Trinity College, Cambridge. During the eighteen months he held this post he twice served as vice-chancellor of the university. He was created bishop of Chester in 1662 but died five weeks later.

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The Resolving of Conscience, Touching the Unlawfulnesse of the Warre and Resistance Now Made Against the King.

Lamentable are the distractions of this Kingdome, and the more, because they gather strength from the name and authority of (that, which as it is of high esteeme with all, so should it be a remedy to all these our distempers) a Parliament: and from the pretended defence of those things that are most deare unto us, Religion, Liberties, Laws. Whereupon so many good people, that have come to a sense of Religion and godlinesse, are miserably carried away by a strange implicite faith to beleeve, that whatsoever is said or done in the name of a Parliament, and in the pretended defence of Religion, Liberties, Lawes, to be infallibly true, and altogether just.

But he that will consider, men are men, and would seeke a surer rule for his conscience than the Traditions or Ordinances of men taken hand over head, shall upon reasonable examination find upon what plausible but groundlesse principles, upon what faire but deceiving pretences, upon what grievous but causelesse imputations laid upon Majestie itself, a poore people are drawn into Arms against the duty and allegiance they owe to their Prince by the Laws of God and man. For directing the Conscience in such an examination this ensuing Discourse is framed as briefly and plainly as the matter will permit.

Sect. i.

Conscience in resolving upon a question, first layes down the Proposition or Principle or Ground on which it goes; then it assumes or applies to the present case; then it concludes and resolves: as in this question, affirmatively for Resistance, thus, Subjects in such a case may arm and resist. But that case is now come. Therefore now they may and doe justly resist.

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Or negatively against Resistance, either by denying the Principle: Subjects may not in such a case arm and resist; therefore now they doe not justly resist. Or by admitting the Principle and denying the Case; Subjects in such a case may arm and resist. But that case is not now. Therefore now they do not justly arm and resist.

What it is that Conscience is here to admit or deny, and how it ought to conclude and resolve, this ensuing Treatise will discover: which that it may more clearely appeare, we will premise,

First, that in the Proposition or Principle by the word Resistance is meant, not a denying of obedience to the Prince’s command, but a rising in arms, a forcible resistance. This though clear enough in the question, yet I thought fit to insinuate, to take off that false imputation laid upon the Divines of this Kingdom & upon all those that appear for the King in this cause, that they endeavoured to defend an absolute power in him, and to raise him to an Arbitrary way of government. This we are as much against on his part, as against Resistance on the subjects’ part. For we may & ought to deny obedience to such commands of the Prince, as are unlawfull by the law of God yea, by the established Laws of the Land. For in these we have his will and consent given upon good advice, and to obey him against the Laws, were to obey him against himselfe, his sudden will against his deliberate will; but a far other matter it is to resist by power of arms, as is in the question implied, and as we see at this day to our astonishment, first the power of arms taken from the Prince by setting up the Militia,1 then that power used against him by an army in the field.

Secondly, we must consider that they which plead for Resistance in such a case as is supposed do grant it must be concluded upon, Omnibus ordinibus regni consentientibus that is, with the generall and unanimous consent of the Members of the two Houses of the representative Edition: current; Page: [184] body of the whole Kingdom. Also they yeeld it must be only Legitima defensio, a meer defensive resistance; and this also Conscience must take notice of.

Thirdly, it is considerable that in the supposition or case it is likewise granted by them, that the Prince must first be so and so disposed, and bent to overthrow Religion, Liberties Laws, and will not discharge his trust for the maintaining of them, before such a Resistance can be pretended to. And although the question is, and must be so put now, as that it seems to streighten the Case, and make it depend upon the supposall of the people; yet it so much the more enlarges the falshood of the Principle, for it plainly speaks thus; If subjects beleeve or verily suppose their Prince will change Religion they may rise in arms; whereas all that have pleaded for Resistance in case of Religion, did suppose another Religion enjoined upon the subject first. We will therefore endeavour to cleare all for the resolving of Conscience in these three generalls:

I. That no Conscience upon such a case as is supposed can find clear ground to rest upon for such resistance as is pretended to but according to the rules of Conscience, What is not of faith is sin: and, In doubtfull things the safer way is to be chosen. Conscience it will find cause to forbeare and to suffer, rather than resist; doubtfull, I say, not that a Conscience truly informed will not clearly see the unlawfulnesse of this Resistance but because no conscience can be truly perswaded of the lawfulnesse of it, and so that Conscience that resolves for it, must needs run doubtingly or blindly upon the worke.

II. That the resistance now used and made against the Prince is not such as they pretend to either for that generall and unanimous consent that should precede it, or that defensive way that should accompany it, according to their owne grants that plead for it and therefore Conscience cannot admit such a resistance as is made now adayes.

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III. If Conscience could be perswaded, that it is lawfull in such a case to resist, and that this rising in arms is such a resistance as they say may in such a case be pretended to, yet can it never (if it be willing to know anything) be truly perswaded that such a case is now come, that is, That the King refuses to discharge his trust, is bent to overthrow Religion, &c. and therefore Conscience cannot but resolve, this Opposition and Resistance to be unlawfull, unwarrantable, and (according to the Apostle) damnable; and that people running into arms without sufficient warrant, commit murder if they shed bloud in the pursuit of this Resistance, and perish in their own sinne, if die in the cause.

Sect. II.

First then, that the Principle is untrue upon which they go that resist, and that Conscience cannot find clear ground to rest upon for making resistance: for it heares the Apostle expressely say, Whosoever resists shall receive to themselves damnation: and it cannot find any limitation in Scripture that will excuse the Resistance of these dayes.

The exception or limitation that is made, is taken from the Persons resisting, and the Causes of resistance, thus, They that are private persons and doe resist upon any cause receive damnation, but the States or representative body of the whole people may resist upon such or such causes. But how will this satisfie Conscience, when every distinction or limitation made upon any place of Scripture, must have its ground in Scripture; this has only some examples in Scripture that come not home to the cause and some appearances of Reason; which are easily refuted by clearer Scripture and Reason.

The examples alleged, are, I. The people’s rescuing of Jonathan out of the hands of Saul. Answ. Here the people drew not into arms of themselves, but being there at Saul’s command, did by a loving violence Edition: current; Page: [186] and importunitie hinder the execution of a particular and passionate unlawfull command.

II. David’s resisting of Saul. Answ. 1. David’s guard that hee had about him was only to secure his person against the cut-throats of Saul, if sent to take away his life. 2. It was a meer defence without all violence offered to Saul; therefore he still gave place as Saul pursued, and did no act of hostility to him or any of his Army when they were in his power, I Sam. 26. But thirdly, because they gather out of the I Sam. 23.12 that David would have defended Keilah against Saul, if the Inhabitants would have been faithfull to him. Wee say that’s only an uncertaine supposition not fit to ground Conscience in this great point of resistance; also to this and all other David’s demeanours, in his standing out against Saul, we say his example was extraordinary; for he was anointed and designed by the Lord to succeed Saul, and therefore he might use an extraordinary way of safeguarding his person.

These are the chiefe examples. They make use also of the high Priests resisting the King in the temple, and Elisha’s shutting the doore against the King’s Messenger that came to take away his head; and the like; which speake not so much as the two former, having no appearance of such resistance as is implied in the question. But wee answer, 1. That of the high Priest is more pertinently applied to the Pope’s power of excommunicating and deposing Kings, than to this power of resisting now used; but truly to neither. For he did no more than what every Minister may and ought to doe if a King should attempt the administration of the Sacrament; that is, to reprove him, to keep the Elements from him. Ambrose Bishop of Milain withstood the Emperour at the entrance of God’s house, not by Excommunication, much lesse by force of arms, but by letting him understand hee was not fit for that place, there to be made partaker of the holy things, till he had repented of that outrage and bloodshed at Thessalonica. Upon which the Emperour withdrew.

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The Priests here are said to thrust him out of the Temple; but we must note God’s hand was first upon him smiting him with leprosie, and by that discharging him of the Kingdome also. It is added in the text, yea himself also hasted to goe out. But enough of this.

2. Elisha’s example speaks very little. But let us thence take occasion to say, That Personall defence is lawfull against the sudden and illegall assaults of such Messengers; yea, of the Prince himself thus far, to ward his blowes, to hold his hands, and the like: not to endanger his person, not to return blows, no; for though it be naturall to defend a man’s self, yet the whole Common-wealth is concerned in his person, as we see in the Common-wealth of the creatures, one particular nature will defend itself against another, but yeeld to the universall.

If this be drawn from personal defence to the publick resistance now used, as usually they make the Argument thus; If the body naturall, then the body politick may defend itself, if a private person much more the whole State may; and they doe but shut the way up against the King that comes to destroy his Parliament, and take away their heads.

We answer: As the naturall body defends itself against an outward force, but strives not by a schisme or contention within itself; so may the body politick against an outward power, but not as now by one part of it set against the Head and another part of the same body; for that tends to the dissolution of the whole. Again; Personall defence may be without all offence, and does not strike at the order and power that is over us, as generall resistance by Armes doth, which cannot be without many unjust violences, and does immediately strike at that order which is the life of a Commonwealth. And this makes a large difference betwixt Elisha’s shutting the doore against this messenger, and their shutting up the way against the King by armed men; nor can they conclude upon such an intention in the King’s heart without the Spirit of Elisha. He professeth hee intends no violence to Edition: current; Page: [188] his Parliament, nor has he taken away the head of any of theirs that have fallen into his power, nor does desire any other punishment inflicted upon any that do oppose him, than what a Legall tryall shall adjudge them to, which no good Subject ought to decline.

Now let us see how Scripture excludes this and all other exceptions, giving no allowance to resistance, in regard of Persons or Causes, or other pretences, and this not only by examples, but by precept, conclusions, Resolutions, which are more safe.

First, we have the two hundred and fifty Princes of the Congregation, gathering the people against Moses and Aaron, Numb. 16.3 and perishing in this sin. If it be replied, the persons indeed were publick, but there was no cause for it; Moses and Aaron did not deserve it. I answer, but the other supposed they did, and that is now enough, it seems, to make people not only say to their Prince, You take too much upon you, but therefore to rise in armes also, which I hope will appeare to be without cause too in the end of this Treatise.

Secondly, see for the cause of Resistance, I. Sam. 8.1. there the people are let to understand how they should be oppressed under Kings, yet all that violence and injustice that should be done unto them is no just cause of resistance, for they have no remedy left them but crying to the Lord, vers. 18.

Thirdly, we have not only example, but resolution and conclusion out of Scripture. The people might not be gathered together either for Civill assemblies, or for warre, but by his command that had the power of the Trumpet, that is, the supreme as Moses was, Numb. 10.

Also when David had Saul and his army in his power, he resolves the matter thus, Who can stretch out his hand against the Lord’s annointed and be guiltlesse, I Sam. 26.9. If replied, now they intend not hurt to the King’s person; yet might not they as well have hurt his person in the day of battell, as any of them that were swept away from about him by the furie of the Ordnance, which puts no difference betwixt King and common souldiers?

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This also I must observe concerning this point of resistance, out of the Old Testament (for from thence have they all their seeming instances). That it is a marvellous thing, that among so many Prophets reprehending the Kings of Israel and Judah for idolatry, cruelty, oppression, none should call upon the Elders of the people for this duty of Resistance.

But lastly, that place of the Apostle, Rom. 13 at first mentioned does above all give us a clear resolution upon the point, which now I shall free from all exceptions.

First, I may suppose, that the King is the Supreme, as S. Peter calls him; or the higher power, as S. Paul here, though it be by some now put to the question, as one absurdity commonly begets another to defend it; but I prove it, S. Peter’s distinction comprehends all that are in authority, The King as supreme, and those that are sent by him, 1 Pet. 2.12 in which latter rank are the two Houses of Parliament, being sent by him, or sent for by him, and by his Writ sitting there. Also by the Oath of Supremacy it is acknowledged, that there is no power above him without or within this Realm; and that he is in all Causes and over all persons supreme. Also acknowledged by the Petitions of the two houses addressed unto his Majesty, wherein they style themselves His loyall Subjects. But enough of this.

Secondly, in the text of the Apostle, all persons under the higher power are expressely forbidden to resist. For whosoever, in the second verse, must be as large as the every soul in the first, and the resistance forbidden here concerns all upon whom the subject is injoined there, or else we could not make these universalls good against the Papists, exempting the Pope and Clergy from the subjection.

Thirdly, in those dayes there was a standing and continuall great Senate, which not long before had the supreme power in the Romane State, and might challenge more by the Fundamentalls of that State, than our great Councell (I think) will, or can. But now the Emperour being Supreme, S. Peter calls him; or the higher power, as S. Paul here, Edition: current; Page: [190] there is no power of resistance left to any that are under him, by the Apostle. This for the Persons that should resist, all are forbidden. Now considering the Cause.

Fourthly, was there ever more cause of resistance than in those dayes? Were not the Kings then not only conceived to be enclined so and so, but even actually were enemies to Religion, had overthrown Lawes and Liberties? And therefore if any should from the Apostle’s reasons that he gives against resistance in the 3, 4, 5, verses, (For Rulers are not a terrour to good works but evill, and he is the minister of God to thee for good) reply, That Rulers so long as they are not a terrour to the good, but minister for our good, are not to be resisted. The consideration of those times leaves no place for such exception, because the Powers then (which the Apostle forbids to resist) were nothing so, but subverters of that which was good and just.

If it be replied, That prohibition was temporary and fit for those times, as it is said by some, I answer, 1. This is a new exception never heard of (I think) but in these times. 2. It is groundlesse, and against the Text, for the reasons of the prohibition in the 3, 4, 5, 6, verses, are perpetuall, from that order, that good, for which the powers are ordained of God, which will be of force as long as there is government, and will alwayes be reasons against resistance; because resistance (though it be made against abused powers as then they were) doth tend to the dissolution of that order, for which the power itself is set up of God. By which also that other distinction of theirs is made void, when as they reply, as they think, acutely, That they resist not the power, but the abuse of the power.

It is also answered by some, that the Emperors then were absolute Monarchs, and therefore not to be resisted. I answer: They did indeed rule absolutely and arbitrarily, which should have, according to the principles of these dayes, been a stronger motive to resist. But how did they make themselves of Subjects such absolute Monarchs, Edition: current; Page: [191] was it not by force and change of the government, and was not the right of the people & Senate (according to the Principles of these days) good against them with as much or more reason, than the right of the people of this Land is against the succession of this Crown descending by three Conquests?2 And this I speak not to win an Arbitrary power or such as Conquerours use, unto this Crown, but only to shew that Resistance can be no more made against the Kings of England, than it could against those Emperours. Nay, with lesse reason against them, than these.

Lastly, it is replied, That Christian Religion was then enacted against by Law; but the Religion contended for is established by Law. I answer: But is the Religion established denied to any that now fight for it? Shall the Apostle’s prohibition be good against Christians in the behalfe of actuall Tyrants persecuting that Religion, and not against Subjects freely enjoying the Religion established? Or may Protestants upon a jealousie resist a Protestant King professing the same Religion, and promising to conserve it entire to them?

2. The prohibition does not only concern Christians, but all the people under those Emperours, and not only Religion was persecuted, but liberties also lost, the people and Senate were enslaved by Edicts and Lawes then inforced upon them, & they (according to the principles of these dayes) might resist, notwithstanding the Apostles’ prohibition, & the Laws then forced upon them; or else the State, as they usually say, had not means to provide for its safety. Thus one fancy of theirs thwarts another, because both are groundless. But more anon of those means of safty they suppose to be in every State, by the power of Resistance.

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Hitherto of Scripture, which is most powerful against Resistance, in the prohibition & the reasons of it, by which Conscience will clearly see, it can have no warrant from Scripture for Resistance. Now let us try what Reason can enforce.

Sect. III.

For proving this Power of resistance, there is much speech used about the Fundamentals of this government, which because they lie low and unseen by vulgar eyes, being not written Lawes, the people are easily made to believe they are such as they (that have power to build new Laws upon them) say they are. And indeed none so fit to judge of them as they. Yet this we know, and every one that can use his reason knows, that the Fundamentalls must needs be such as will bear the settled government of this Land, such as are not contradictory to the written established Laws: but both the government we see used in this Land, and the written Laws which we reade, must have a correspondency and analogie of reason to these, Fundamentalls, and they to these.

Well then, they that plead for power of resistance in the people, lay the first ground work of their Fundamentals thus: Power is originally in and from the people and if when by election they have intrusted a Prince with the power, he will not discharge his trust, then it falls to the people; or, as in this Kingdom, to the two houses of Parliament (the representative body of the people) to see to it; they may reassume the power.

This is the bottom of their Fundamentals as they are now discovered to the people. But here we may take notice by the way, that however the Fundamentals of this Government are much talked of, this is according to them the Fundamentall in all Kingdomes and Governments; for they say power was everywhere from the people at first, and so this will serve no more for the power of resistance in England, Edition: current; Page: [193] than in France or Turkey. But if this must be a Fundamentall, it is such a one as upon it this Government cannot be built, but Confusion and Anarchy may readily be raised; as shall appear by the clearing of these two particulars, Whether the power be so originally and chiefly from the people as they would have it; then, Whether they may upon such causes reassume that power.

First, of the originall of power, which they will have so from the people, that it shall be from God only by a kind of permissive approbation, as we may see by the Observator, and all other that plead for this power of resistance. Wee must here distinguish what the writers of the other side seeme to confound, to wit, the Power itselfe, (which is a sufficiency of authority for command and coercion in the governing of a people) from the designing of the Person to beare that power, and the qualification of that power according to the divers wayes of executing it in severall forms of government; and then we grant that the designing of the person is sometimes from the people by choice, and that the power of the Prince receiving qualification by joint consent of himselfe and the people, is limited by the laws made with such consent; but the power itself is of God originally and chiefly, which we prove by Scripture and Reason.

First, by such places of Scripture as plainly shew an ordaining and appointing, rather than a permission or approbation:

1. The Apostle speaks it expresly, The powers are of God, Rom. 13.1 and the ordinance of God, v. 2. S. Peter indeed saith, every ordinance of man, I Epist. 2. but of man there, and of God here is much differing; there it is ἀνθρωπίνῃ, of man, subjective, that is, every ordinance or power set up amongst men; but here it is ἀπὸ θεοῦ, of God, causaliter,3 that is, from him, his ordinance; and if in that ἀνθρωπίνῃ there be implied any creation or causality, or invention of man, it respects the qualification of the power according to the forms of severall Edition: current; Page: [194] governments and offices in them, which are from the invention of man; it does not make the power itselfe the creation of man, which is the constitution and ordinance of God. And men are not only naturally bent to society, but also are bound, as they are reasonable creatures, to set up and live under government, as under an order of that providence by which the world is governed.

2. He is called the minister of God, v. 4. but if so from the people and no otherwise from god than they would have him, he should be minister populi rather; he is indeed their minister for their good, which makes the people to be the end of this governing power, not the fountain and originall of it. Therefore the necessity of subjection urged in v. 5. has a double ground the ordinance of God, whose ministers Rulers are, there’s the fountain and originall of power to govern; then the people’s good, upon which Rulers ought to attend, that is an end of the governing power.

3. To the same purpose speake those other places, by me Kings reign: and, I have said, ye are Gods, Psa. 82. in relation to which our Saviour saith, Joh. 10. they are called Gods to whom the word of God came, that dixi, that word is the command, the issuing out as it were the commission for the setting up of a governing power among the people.

These places cannot be satisfied with that poor part, they on the other side leave to God in the setting up of power for the governing of men, that is, to approve it when the people have created or invented it. Indeed if we consider the qualification of this governing power, and the manner of executing it according to the severall formes of government, we granted it before to be the invention of man, and when such a qualification or forme is orderly agreed upon, we say it hath God’s permissive approbation.

And therefore the imputation is causeless which the Pleaders on the other side doe heedlessely and ignorantly lay upon us Divines, as if wee cried up Monarchy, and that only government to be jure divino. Edition: current; Page: [195] For although Monarchy has this excellency, that the Government God set up over his people in the person of Moses, the Judges, and the Kings, was Monarchicall; yet we confesse that neither that, nor Aristocracy, or any other forme is jure divino, but we say the power itself, or that sufficiency of Authority to govern, which is in Monarchy or Aristocracie, abstractly considered from the qualifications of either form, is an efflux or constitution subordinate to that providence, an ordinance of that Dixi, that silent Word by which the world was at first made, and is still governed under God.

Secondly, as this appeares by the former places of Scripture, so is it also suitable to Reason. Because God doth govern all creatures, Reasonable as well as Unreasonable; the inferiour or lower world he governs by the heavens or superiour bodies, according to those influences and powers he has put into them; and the reasonable creatures, Men, he governs too by others set up in his stead over them: for which they are called Gods, because in his stead over the people: and the powers are said to be ὑπὸ θεοῦ τεταγμέναι, Rom. 13.1. not only ἀπὸ θεοῦ from God, but also as orders ranked under him too, subordinate to that providence by which all creatures are governed.

These his Ministers he sometimes designed immediately by himself, as Moses, the Judges, Saul, David, &c. Now he designes his Vicegerents on earth mediately as by election of the people, by succession or inheritance, by conquest, &c. To conclude, The power itselfe of government is of God, however the person be designed, or that power qualified according to the severall formes or government by those Lawes that are established, or those grants that are procured for the people’s security. Thus much of the originall of Power.

Sect. IIII.

Now we come to the Forfeiture, as I may call it, of this power. If the Prince, say they, will not discharge his trust, then it falls to the people Edition: current; Page: [196] or the two Houses (the representative body of the people) to see to it, and to reassume that power, and thereby to resist. This they conceive to follow upon the derivation of power from the people by vertue of election, and upon the stipulation or covenant of the Prince with the people, as also to be necessary in regard of those meanes of safety, which every State should have within itself. We will examine them in order, and shall find the arguments inconsequent.

Concerning the derivation of power, we answer, First, if it be not from the people, as they will have it, and as before it was cleared, then can there be no reassuming of this power by the people; that’s plaine by their own argument.

Secondly, if the people should give the power so absolutely as they would have it, leaving nothing to God in it but approbation, yet could they not therefore have right to take that power away. For many things which are altogether in our disposing before we part with them, are not afterward in our power to recall; especially such in which there redounds to God an interest by the donation as in things devoted, though afterward they come to be abused. So although it were, as they would have it, that they give the power and God approves; yet because the Lord’s hand also and his oile is upon the person elected to the Crown, & then he is the Lord’s anointed, & the minister of God, whose hands of the people which were used in lifting him up to the Crown, may not again be lifted up against him, either to take the Crown from his head, or the sword out of his hand. This will not a true informed Conscience dare to doe.

Thirdly, how shall the Conscience be satisfied that this their argument, grounded upon election and the derivation of power from the people, can have place in this kingdom, when as the Crown not only descends by inheritance, but also has so often been setled by Conquest in the lines of Saxons, Danes, and Normans? In answering to this they look beyond all these, and say, the right is still good to Edition: current; Page: [197] the people by reason of their first election. I answer, So then that first election must be supposed here, & supposed good against all other titles, or else this power of resistance falls to the ground. It is probable indeed that Kings at first were by choice here as elswhere; but can Conscience rest upon such remote probabilities for resistance, or think that first election will give it power against Princes that do not claim by it. We tell them the Roman Emperours were not to be resisted, Rom. 13.2. They reply, as we had it above, that they were absolute Monarchs. But how came they of subjects to be absolute Monarchs? Was it any otherwise than by force and arms? The way that the Saxons, Danes, and Normans made themselves masters of this people, & was not the right of the people as good against them for the power of resistance by virtue of the first election, as well as of the people of this Land, against their Kings after so many conquests? This I speak, not as if the Kings of this Land might rule as conquerors, God forbid. But to shew this slender plea of the first election can no more take place against the Kings of this Land, than it could against the Roman Monarchs, especially according to their argument, that hold all power originally from the people, & that (as we observed above) to be the fundamentall of all government. Therefore whether Kings were in this Land at first by election or no, we acknowledge what belongs to the duty of a Prince in doing justice and equity. What Grants also, Lawes, Priviledges have since those conquests beene procured or restored to the people, unto all those the King is bound. But yet not bound under forfeiture of this power to the people, which now comes to be examined in that capitulation or convenant he is said to enter with the people.

In the next place therefore, That capitulation or covenant, and the oath which the Prince takes to confirme what he promiseth, are so alledged, as if the breach or non-performance on the Prince’s part were a forfeiture of his power. But we answer, the words capitulation Edition: current; Page: [198] or covenant are now much used to make men believe the King’s admittance to the Crown is altogether conditionall, as in the meerly elective kingdoms of Polonia, Swedeland, &c. whereas our King is King before he comes to the Coronation, which is sooner or later at his pleasure, but always to be in due time in regard of that security his people receive by his taking the oath, and he again mutually from them, in which performance there is something like a covenant, all but the forfeiture. The King there promises and binds himself by oath to performance. Could they in this covenant shew us such an agreement between the King and his people, that in case he will not discharge his trust, then it shall be lawfull for the States of the kingdome by armes to resist, and provide for the safety thereof, it were something.

If it be said, that so much is implied in the first election; we answer, we examined that slender plea of the first election above, as it was thought to be a derivation of power. Now as it is thought to have a covenant in it, we say, that usually in all Empires the higher we arise, the freer we find the Kings, & still downwards the people have gained upon them. For at first when people chose their Rulers, they did as Justine in the beginning of his history observes, resign themselves to be governed by such, of whose prudence and moderation they had experience, and then, arbitria Principum pro legibus erant, the will and discretion of the Prince was law unto the people; but men were men though in God’s place, and therefore for the restraint of that power, with consent of the Prince, such Lawes have beene still procured by the people, as might make for their security.

Now from a promise the king makes for doing justice (the duty of every Prince) for the continuing those priviledges, immunities, that have been granted or restored to the people, and for the observing of those laws that have been established with the Prince’s consent, & from that oath (by which for the greater security of the people he Edition: current; Page: [199] binds himself to the performance of the premises) to infer a great obligation lieth upon him, is right, but to gather thence a forfeiture of his power upon the not performance, is a plain but dangerous inconsequent argument.

And though such argument may seem to have some force in States meerly elective and pactionall, yet can it never be made to appear to any indifferent understanding, that the like must obtain in this kingdom. And to this purpose Phil. Pareus excuseth what his father had written more harshly upon Rom. 13. in the point of resistance, that it was to be understood of elective and pactionall government, not to the prejudice of England, or such Monarchies. For where the King, as it is said, never dies, where he is King before oath or coronation, where he is not admitted upon any such capitulation as gives any power to the people, or their representative body, as is pretended to; Nay, where that body cannot meet but by the will of the Prince, and is dissoluble at his pleasure; that there in such a State, such a power should bee pretended to, and used against the Prince, as at this day; and that according to the Fundamentalls of such a State, can never appeare reasonable to any indifferent judgement, much lesse satisfie Conscience in the resistance that is now made by such a pretended power.

What then shall we say? Is the King not bound to perform? Yes, by all means. Or has he not a limited power according to the Laws? Yes, What then if he will take to himself more power, or not perform what he is bound to? Suppose that (though thanks be to God we are not come to that) then may the Subjects use all fair means as are fit to use, cryes to God, Petitions to the Prince, denialls of obedience to his unlawfull commands, denialls of subsidy, aid, &c. But are they left without all means to compell by force and resistance? This however it may at first sight seem unreasonable to the people, and very impolitick to the Statesman, yet has Scripture forbidden it, as before Edition: current; Page: [200] was plainly shewed, and so doth Reason too, as will appear in the examination of their last proof they make for reassuming this power and resisting, from that necessity of means of safety, which every State is to have within itself: Of which now.

Sect. V.

In the last place it is thus reasoned, Were it not so that the two Houses might take and use this power, the State should not have means to provide for its own safety, when the King shall please to desert his Parliament, deny his consent to their bills, abuse His power, &c. So they.

When right and just will not defend a thing then Necessity is usually pleaded; as if, because Salus populi in a good sense is Suprema lex, everything must be honest which is Sparta Utile, imagined to conduce to the proposed end. We answer therefore.

1. They have many weapons sharpened for this resistance at the Philistines’ forge, arguments borrowed from the Roman Schools, among them this is one, the very reason that is made for the Pope’s power of curbing or deposing Kings in case of Heresie. For if there be not that power in the Church, say they, then in case the Civill Magistrate will not discharge his trust, the Church has not means for the maintenance of the Catholike faith and its own safety. Well, as we reply to them, the Church has means of preserving the faith, such as God has appointed, though not that of one visible head, which though at first seems plausible for preserving the Unity of faith, yet has experience shown it, to be indeed the means to bring much mischief upon the Church. So to the other we say, The State has means of preservation such as the Law has prescribed, though not such as are here pretended to in this power of resistance; which though seemingly plausible, yet true reason will conclude them dangerous, and at Edition: current; Page: [201] this day, God knows, we see it. Of this in the 4. answer more particularly.

2. If every State has such means to provide for its safety, what means of safety had the Christian Religion under the Roman Emperours in and after the Apostles’ times? Or the people then enslaved, what means had they for their Liberties? Had they this of resistance? Tertullian in his Apology sayes, the Christians had number and force sufficient to withstand, but they had no warrant; and the Apostle expressely forbids them, and all other under the higher power, to resist.

If it be replied, as it was above touched, That things being so enacted by Law, it was not lawfull for them to resist. I answer, But it is known that not only those Edicts which concerned Christian Religion, but also all other that proceeded from those Emperours and enslaved the people, were meerly arbitrary and enforced upon the Senate, and that the Senate did not discharge their trust in consenting to them, and therefore according to the former position the people might resist, notwithstanding the Apostle’s prohibition, or else no means of safety left in that State.

So would it be in this State, if at any time a King that would rule arbitrarily, as those Emperours did, should by some means or other work out of two Houses the better affected, and by the Consent of the Major part of them that remain, compasse his desires; might the people then resist? The Apostle forbids it to them as well as to the Romans in such a case: if so, where are these means of safety by this Power of resistance? Or are these means of safety extinct in the Consent of the Senate, or the two Houses? No, the people will tell them they discharge not their trust, they chose them not to betray them, enslave them; but according to the principles now taught them, they might lay hold upon this power of resistance, for their representative body claims it by them.

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Thirdly we answer, We cannot expect absolute means of safety and security in a State, but such as are reasonable; and such are provided, especially in the fundamentalls of this Government, by that excellent temper of the three Estates in Parliament, there being a power of denying in each of them, and no power of enacting in one or two of them without the third; which as it is for the security of the Commonwealth (for what might follow if the King and Lords without the Commons, or these and the Lords without the King, might determine, the evils of these dayes do shew) so is this power of denying, for the security of each State against other, of the Commons against the King and Lords, of the Lords against them: and must the King trust only, and not be trusted? Must not he also have his security against the other, which he cannot have but by Power of denying? This is that Temper of the three Estates in Parliament, the due observing whereof, in the moderate use of this Power of denying, is the reasonable means of this State’s safety. But now not only the name of Parliament, which implies the three Estates, is restrained usually to the two Houses, but also that Temper is dissolved. I need not speak it, the distractions and convulsions of the whole Commonwealth, as the distempers in a naturall body, do sufficiently shew such a dissolution, and what’s the cause of it.

If it be replied, as it is, for the reasonablenesse of these means of safety, through that Power of resistance, and the finall trust reposed in the representative body of the people, That many see more than one, and more safety in the judgement of many than of one. Answ. True. But 1. Conscience might here demand for its satisfaction, Why should an hundred in the House of Commons see more than three hundred; or twenty in the Lords House, more than sixty that are of different judgement and withdrawn?

2. Reason doth suppose, That the Prince, though one, sees with the eyes of many, yea with their eyes who are of different judgement from him, for which his Houses of Parliament are his great Councell Edition: current; Page: [203] to present to his eyes the differences of things with the reasons of them; and albeit he sometimes dissents from the Major or prevailing part, because he is convinced in his own judgement they seek themselves not his or the publike good, or for other reasons that may perswade him against their Vote, yet have all times thought good to have Kings, and to reduce the judgement of many unto one. The Government which God made choice of to set up among his people was Monarchicall still, first in Moses, then in the Judges, then in the Kings; yea generally all Authors yield, and experience has taught it, That Monarchy is a better government than Aristocracy, because the Tyranny and Miscarriage of one, sometime happening in a Monarch, is nothing so dangerous as Oligarchy, Faction, and Division usually incident to Aristocracy or the Government by many equals. Again, as all times have thought it reasonable to have Monarchy, which settles the chief power and finall judgement in One; so will there be alwayes sufficient reason to withhold the King from a willfull deniall of his Consent to the free and unanimous Vote of his Houses. He cannot but see there will alwayes be some necessary good accrewing to him by his Parliament, that will keep him in all reason from doing so, and no cases can be put or inconveniences feared upon his power of denying, but greater and more eminent will appear upon his not having it, as has been insinuated, and now do follow.

Fourthly therefore and lastly we answer. Such power of resistance would be no fit means of safety to a State, but prove a remedy worse than the disease. This is very plain by the drift of the Apostle’s reasons which he gave against resistance, in the 3, 4, 5, 6, Vers. of the 13. to the Romans, in which we may consider, that, although the Powers then were altogether unjust, tyrannicall, subverters of true Religion, nothing answerable to the end for which the Governing power is ordained, yet doth the Apostle draw his reasons against the resisting of them, from that good, that justice, that order for which God hath set up the higher powers; to insinuate, that the resisting of the higher Edition: current; Page: [204] powers, even when they are so, does tend to the overthrow of that order which is the life of a Commonwealth; and this not only because there is still order under tyranny, but chiefly because, if it were good and lawfull, to resist the power, when abused, it would open a way to the people upon the like pretences to resist and overthrow even Powers duely administered for the executing of wrath upon them that do evill.

I enter this discourse, not to cast the least blemish upon Parliaments (which are an only remedy for distempers of the Kingdom) not to reflect upon the intentions of those that are yet resident in that high Court, (unto God, the judge of all, they stand or fall) not to raise jealousies, but to settle Conscience, and in the way of reasoning to shew according to the Apostle’s reasons what dangers and evils may ensue upon this power of resistance.

For first of all, This power of resistance, if admitted and pursued may proceed to a change of Government, the Principles that now are gone upon, and have carried it so farre as we see at this day, may also lead it on to that greatest of evils. And I have heard and seen it defended by the example of the Low-countreys; how they excuse it, thoroughly I examine not, but this I am sure they can say, That their Prince, succeeding in the right of the Duke of Burgundy was admitted upon other conditions than the Kings of England are. Also that a contrary Religion was enforced upon them by a terrible Inquisition, whereas they that do resist the higher Powers here, do freely enjoy their Religion, and have the Prince’s promise and Protestation for it.

Secondly, This power of resistance when used, and pursued, is accompanied with the evils of Civill warre. Former times shew it, and how little was gained by it beside the expence of bloud; as when all was referred to the rule and disposing of the 12 Peers, how long lasted it? What security had the State by it? And at this day we feel and groan under the evils brought upon us through this power of resistance, the Law silenced, the Property and Liberty of the Subject Edition: current; Page: [205] every where invaded: and the Lord knows when or how we shall be restored to them, or better secured in them by this way. Thirdly, We see the danger, if (as it is now said, for the justifying of this power of resistance, The King will not discharge His trust, and therefore it falls to the representative body of the people to see to it, so) the People being discontented, and having gotten power shall say, The Members of the two houses do not discharge the trust committed to them, they do not that for which they were chosen and sent for, then may the multitude by this rule and principle now taught them take the Power to themselves, it being claimed by them and say to them as Numb. 16. Ye take too much upon you, or, as Cade and Tylar,4 boast themselves Reformers of the Commonwealth, overthrow King and Parliament, fill all with rapine and confusion, draw all to a Folkmoot, and make every Shire a severall Government. These are Dangers and Evils not conceived in the fancy, but such as reason tells us may follow, and experience hath often, and this day doth shew us, do arise upon this Power of resistance, and for the preventing of which, the Apostle gave his reasons against resisting even of abused Powers, as we heard above. Lastly therefore, Seeing some must be trusted in every State, ’tis reason the highest and finall trust should be in the higher or supreme Power with whom next to himself God hath intrusted the whole Kingdom, all other that have power and trust, having it under him as sent by him; Good reason I say that the supreme Power (which is worth 10,000 of the Subjects) should have the best security on its side, for as much as Order, the life of a Commonwealth, is so best preserved, and not so endangered by Tyranny as by factions, division, tumults, power of resistance on the Subject’s part, and this is according to the drift of the Apostle’s reasons against resistance, as before they were laid down.

Well now unto all that hath hitherto been said from Scripture and Edition: current; Page: [206] Reason let Conscience adde the Oath of Supremacy and Allegeance, also the late Protestation,5 and consider what duty lies upon every Subject by the former to defend the King’s Person and right against what power soever, and how by the latter he hath protested and undertaken before Almighty God, in the first place to defend the same; and then what can Conscience conclude from the Premises? That the Prince hath his power for the good of his people? True, but that power cannot be prevalent for the good and protection of his people, unlesse it be preserved to him intire, unlesse he hath the power of Deniall, and the chiefe command of Arms; or that the Prince hath a limited power, according to the Laws established? True, but if Conscience be perswaded he does not hold himselfe within those bounds so fixed, can it be perswaded also that the people may re-assume that power they never had? Or take that sword out of his hand that God hath put into it? No, Conscience will look at that Power as the Ordinance of God, and the abuse of that Power as a judgment and scourge of God upon the people, and will use not Arms to resist the Ordinance under pretence of resisting the abuse, but cries and prayers to God, petitions to the Prince, denials of obedience to his unjust commands, denialls of Subsidies, aids, and all fair means that are fit for Subjects to use, and when done all, if not succeed, will rather suffer than resist: so would a truly informed Conscience resolve, were the Prince indeed what he is supposed to be, and did he do indeed as the people are made to fear and believe he will do.

Hitherto we have been in the examination of the principle upon which they go that plead for resistance, and we have found both Edition: current; Page: [207] Scripture and Reason speak plainly against the resisting even of abused Powers, professed enemies to Religion, actuall subverters of the people’s liberties, how much more against the resisting of a Prince that professeth the same Religion which we freely enjoy, promiseth the maintaining of that and our liberties, only upon a supposall he will not stand to his word, will overthrow all.

This however it may seem lesse reasonable to the Statist in the way of policy, permitting as little as he can to the goodnesse of the Prince or the providence of God for the safety of the State; yet ought it to satisfie a Christian in the way of Conscience, which when it comes to a desire of being safe, will not rest till it have a sure ground, which here it hath against resistance laid down by Scripture and Reason, even the Apostle’s reasons so powerfull against resistance.

The summe of all is this, Conscience hears the Apostle expressely forbid all under the higher power to resist, findes no other clear Scripture to limit it, findes that the limitations given will not consist with it, for the reasons of them (that are drawn from the Election of the people, and the Covenant supposed therein, from the necessity of means of safety in every State to provide for itselfe) were as strong in the Romane State as any, nay, are supposed by those that urge them, to be the fundamentalls of every State: and so resistance is forbidden as well here, as there in the Romane State, which is also cleared by the Apostle’s reasons, shewing the power of resistance cannot be the means of safety, but strikes at Order and power itselfe, though made against tyrannicall and abused powers, as before often insinuated. Therefore Conscience will not dare to go against the Apostle’s expresse prohibition, lest it fall into the judgement denounced by him.

But if there shall be any Conscience as strongly carried away with the name of Parliament, as the Papists are with the name of the Church, and thinking Religion may be defended any way, and that upon supposall that their Prince is minded to change it, (which is another humor of Popery) will not be perswaded that the resistance Edition: current; Page: [208] made upon the present supposall is unlawfull, against God’s word, and Reason. I am sure such a Conscience cannot be truly perswaded it is lawfull, but must want that clear ground it ought to have, especially in a matter so expresly against the Apostle, and of such high concernment as damnation: must needs run blindly, and headlong by a strange implicit faith upon so great a hazard.

Sect. VI.

Now we come to the application of their principle to the present, where we must enquire according to the second and third Generalls, whether the resistance now made be such as is pretended to by them in such a case as they supposed, and then whether Conscience can be truly perswaded the King is such, and so minded as in the case he is supposed to be.

The chief considerations of these two Generalls, are matters of fact. The principle was examined by Scripture and Reason, these admit the judgment of sense, and are cleared by what we hear and see: which judgment of sense is not so easily captivated by an implicit faith as that of reason is, insomuch as Conscience here cannot be so blinded but it may see that (were the principle good on which they rest, yet) this resistance which they make, is not such as in the case they supposed him to be, not such as ought to be resisted according to their own grants.

The second Generall was, That the Resistance now made, is not such as is pretended to by them that plead for it, and therefore Conscience cannot be truly perswaded it may lawfully bear part in it, or assist them that in the pursuit of it pretend one thing and do another.

It was premised at the beginning, that such a resistance should be omnibus ordinibus regni conscientibus, agreed upon and undertaken by the generall and unanimous consent of the whole State, and that it should be only Legitima defensio, a mere resistance, and these laid Edition: current; Page: [209] down, not that I admit resistance however conditioned (for all that I have said before, doth altogether condemne it) but according to their own grants that plead for it. To this purpose it is that they say the King is Universis minor, lesse than the whole State, and every body naturally defends itself. Therefore if a contention be between the Head and the Body, it must in all reason be the whole Body that is set against it, and if there be such an appearing against the supreme Power, as tends to resistance, the consent and judgment of the whole Kingdom just be against him, or else every prevailing faction might indanger the State, by causing such changes and evils as now it’s threatened with. This is the reason of this unreasonable power of resistance in the people.

Well then, how shall Conscience be perswaded that this resistance was agreed upon by an unanimous and free consent of the States assembled in the two Houses, such as in this case may be called the judgment of the whole Kingdom.

He that knows how the Militia (in which this resistance chiefly began) was brought in,6 with what opposition, especially in the Lords House, and by what number there at length was voted; also how the like proceedings of resistance, that have been voted since, are declared against, by a greater number of each House than do remain in either, such as have been cast out, or withdrawn themselves upon dislike of these proceedings: can he, I say, that knows this (and who knows it not, that hath eyes and ears?) be in Conscience perswaded, that this is such an unanimous, free and generall consent, the judgment of the whole kingdom?

For though a Vote passed by a few upon the place has the power and condition of a Vote for the formality of Law, yet, if the question be, Was this passed in full assemblies? Did they all unanimously as Edition: current; Page: [210] one man consent unto it? Conscience cannot be convinced there is such efficacie in the place, as to make a few, the whole, or their agreement to be that judgment of the whole Kingdom, that unanimous consent, which must be in the case of resistance, by their acknowledgment that plead for it. For were it in this case to be held for the judgement of the whole, which is passed by a few, then would the State be unreasonably exposed to that danger (above mentioned) which every prevailing faction might bring upon it under the pretence of the judgment of the whole Kingdome.

Again, as Conscience cannot be truley perswaded that this resistance is agreed upon with such a generall and unanimous consent, as they themselves pretend to, which plead for this resistance, so can it not truly be perswaded that this resistance is such for the mere defensive way of it, as it ought to be according to their grants and pretences that appear for it.

Conscience here will see how to resolve upon the triall of these two particulars, whether the King or they be upon the defensive part? Then, whether the managing of this war, or resistance on their parts, be so void of hostile acts, as the defensive way, which they pretend to, ought to be?

Conscience will discern whether part is upon the defensive, by inquiring, First, Who were first in Arms? He that can number the succession of weeks, and months in his Almanack may decide this. He shall find that armed men were thrust into Hull, the King’s Arms seized against his will, the Militia set up, and by that, the King’s Subjects drawn into Arms, before the King had anything to oppose but Proclamations. That subscriptions for Plate, Money, Horse, That listing of Souldiers for the field, and appointing of Officers of the Armie were begun upon their part, before His MAJESTIE did the like. Now resistance doth in the word itselfe and in their pretence, presuppose a power and force first made against them, whereas it is Edition: current; Page: [211] plain, they were still upon the preventing and forehand with the King, still shewed him example for what he has done since in the way of War: yet must the people believe he raises the War, and they are upon defence; but conscience will not be so forced.

Secondly, by enquiring what is the cause of these Arms? What do they contend for? And though it be clear, That if Subjects be first in Arms, they cannot be upon the defensive, yet the consideration of the cause will more apparently convince it, when Conscience shall see it is not for what is pretended, but for something the King has right to deny, that this resistance is made. The preservation of Religion and Liberties is pretended, but can it be for either? The King denies them not. Their Religion they freely enjoy; and was it ever known that Subjects should rise in Arms against their Prince for a Religion which he promises to maintain? Or does Religion stand in need of a defence, which itself condemns, a defence which would be a perpetuall scandall to it? If therefore Religion be the pretence, but no cause of War than is the War raised on their part, the King is upon the defensive. Or can it be for ancient Rights and undoubted Priviledges that they contend? The King denies them not, promiseth all security, so he may enjoy his own; and God forbid that either he or they should suffer in their just Rights. But would any man ever have defended the revolt of the ten Tribes, if Rehoboam had promised to conserve their Liberties? What shall we then think of this generall revolt from Allegiance that has possessed well-neer ten Tribes of twelve? They suppose he will not make good his promises, and therefore they will make all sure, seize his Arms and Forts, strip him of all, and if he begin to stir for his own Right and Dignity, then the people must be made to believe he makes War against his Parliament, intends to destroy their Liberties. But can any man in Conscience think his Majesty since the beginning of this breach was ever in such a condition of strength as might threaten the Liberty of the Edition: current; Page: [212] Subject, or destroy Parliaments, when as it was long ere he could with much ado attain to any reasonable means of subsistence, or to such a strength whereby he might seem to be able to defend himself.

To speak truth, Religion and Liberties can be no other than the pretences of this Warre, the King has fortified them so with many Acts of Grace passed this Parliament, that they cannot be in that danger which is pretended for the raising of this Warre. It must be something that his Majesty does indeed deny for which the contention is raised. That we shall finde to be his power of Arms and ordering the Militia of the Kingdom, his power of denying in Parliament, his disposing of the Offices of State, and such like; Also the Government of the Church, and the Revenue of it. In the three former he challenges his Right, as his Predecessors had: the other he is bound by Oath to maintain as by Law they are established. Well, if these be attempted, and His MAJESTIE will not be forced from them, cannot yeeld them up, but it comes to Arms, then will Conscience easily be convinced the King is upon the defensive, for the maintaining of what he justly holds his right, or is bound by Oath to defend.

And if we hearken to the people’s voice, for that commonly speaks the mind of their leaders, we shall hear them usually call this Warre, as they did that with the Scots, the Bishops’ Warre. His Majesty has indeed alwayes declared against the altering of the Government of the Church by Bishops, being such as it alwayes had since the first receiving of the Christian faith in this land, and of all other Governments simply the best, if reformed from abuses and corruptions that have grown upon it, to the purging out of which his Majesty is alwayes ready to agree. But be it the Bishops’ Warre (though the abolishing of that Government be but one of the many inconveniences which this power of resistance doth threaten this Land with, and which the King has reason by power of Arms to divert) whether is it so just in Subjects by Arms to force a change of Government which Edition: current; Page: [213] was alwayes in the Church, and by Law established, as it is in the King to defend the same as he is bound by Oath? It is clear which of the two are upon the defensive.

The second particular by which the defensive way of this resistance is to be examined, was the managing of this Warre on their parts, whether in void of acts of Hostility as that defensive way should be which they pretend to. David’s resistance made against Saul is frequently alledged by them, which example, though it will not countenance their cause (as was shewed before) yet might it tell them their demeanour should be answerable. He offered no act of violence to Saul, but still gave place and withdrew from him. The Spear indeed and the Cruse David took away from the King’s head, but it was only to shew Abner’s neglect who had the Command of Saul’s Militia, and to testifie his own integriety, therefore he restored them before they were demanded, I. Sam. 26.

But now the King’s Spear and his Cruse, his Ammunition and his necessary Provisions are taken away, intercepted, not restored though often demanded, used against him with all advantage; nay he is stript of the very power and command of Arms, his Officers and Ministers thrust out, and other substituted, and by them his people drawn into Arms against him.

Also by these that are in resistance against the King, his Loyale and peaceable Subjects are assauled, despoiled of their Arms, Goods, Estates; their persons imprisoned, because they would according to their Allegeance assist him in this extemity, or would not, contrary to their Conscience, join with them against him. What Conscience that will not follow this way with a stupid implicit faith can be perswaded that this warre is the defence of the Subject’s Liberties, and not rather an oppugnation of them? Or that it is a mere resistance or withstanding of a force first made against them, and not rather a violent illation or bringing in of force upon those that were disposed to peace. Therefore no conscience that has a sense of Religion, or of that Edition: current; Page: [214] which is just and right between man and man, can bear a part in this resistance, for fear of that sentence of damnation which the Apostle has laid upon it.

Sect. VII.

But in the last place, if Conscience could be perswaded, that it is lawfull upon such a case as they make, to take Arms and resist, and that this rising in Arms is such a defensive resistance, as in such a case they seem to pretend to, yet how will it be perswaded that the Case is now, that is, That the King is such as the people must be made to believe he is, unlesse it will as desperately offend against the rule of Charitie, in so concluding upon the King, as it does against the rule of Faith and perswasion, in admitting so ungrounded a principle as is now rested on for resistance. So that such a Conscience shall have in its perswasion neither certainty of Rule; for the principle it goes on is false, nor certainty of the Case, for it knows not the heart of the King, to conclude for resistance upon supposals of his intentions, and in its judgement it will be altogether void of Charitie.

Indeed it concerns all such as will resist upon the principles now taught to render their Prince odious to his people under the hatefull notions of Tyrant, Subverter of Religion, and Laws, a Person not to be trusted, or at least as one seduced to such evill designes, by wicked Counsell. But what? Hath this King forbid the exercise of the Religion established, or left off to professe it himself? hath he disclaimed his trust, or not upon all occasions promised Justice and libertie to his Subjects?

Yea! But they have cause to fear Popery will prevail, and that he will not stand to his promises. It seems they are men that would be loath to suffer for their Religion, they are so ready to fly to Arms to secure themselves. But shall subjects rise in Arms against their Prince upon such remote fears and jealousies as these will appear to be? Edition: current; Page: [215] When can such be wanting in turbulent minds? When shall the Prince be assured of safety? This was the way that David himself was shaken out of his throne, and driven from Jerusalem by Absalom. This cunning Rebell steales away their hearts by rising jealousies in them and an evill opinion of David’s government, 2. Sam. 15.3. Some ground, it seems, he had for his treacherous plea, through the negligence of those that were under David, but it was his villanie to make use of it to the alienating of the people from their King. Accordingly let us now consider what slender grounds our people have for their fears and jealousies, then what securitie they have and might have against them, that it may appear how causelesse those jealousies are in themselves; how unjust causes of this resistance.

If we examine the fears and jealousies that have possessed the people we shall find them to be raised upon these or the like grounds, Reports of foreign Power to be brought in, The Queen’s Religion, The resort of Papists to his Majesty, His intercepting of means sent for the relief of Ireland, from whence the people by their good teachers are made to believe, that he means to enslave this people, reestablish Popery, and does comply with the Rebells.

I answer to all which I needed not to say more than what Michael Archangel to the devill that arch-accuser, The Lord rebuke thee, Jude 9. but in particular; For such reports of invasions from abroad, as were, before the setting up of the Militia, given out to keep the people amused, the easier to draw them into a posture of defence as was pretended, all such are discovered by time to have been vain; if there be now any foreign aids towards the King (as all Christian Kings cannot but think themselves concerned in the cause) it will be as just for him to use them against subjects now in Arms, as it was unjust in the Barons to call in the French against their naturall King.

For the Queen’s Majestie; Her Religion is no new cause, if it be a sufficient cause of Jealousie to them, they have had it from her first entrance; I would to God it were otherwise with her, that it would Edition: current; Page: [216] please the Lord to open her eyes that she may see the truth and light of the Protestant Religion: only this I must say, this is not the way to draw her to it, if she look at it in the doctrines and practices of these times she is not like to fall in love with it.

For the resort of Papists, and the King’s entertaining them; He hath often declared what caution he desired to use therein, till necessitie hath driven him to admit of some few into his Army, which also he answered lately. Let me adde this concerning the justnesse of it, If he hath entertained any into this service, he may justly make use of them. We see what manner of men were gathered to David in his distresse, I. Sam. 22.2. and how false Ziba bringing provision to the King when he fled from Absalom, was entertained and rewarded, insomuch that the King (when afterward he knew how Ziba had abused him to gain his own ends) would not reverse the sentence pronounced in his favour. If therefore in this distresse after much forberrance our King hath admitted the help of some Recusants, it cannot be alledged as a cause of the resistance was a cause of it; and if the Papist will shew himselfe a good Subject, it is just and reasonable that the King when he is put to it, may admitt of his help, and the more shame it is for them that professe the Protestant Religion to force him to it; a scandall that would not easily be wiped off from our Religion, were it to stand or fall, by the doctrines of this giddie Age.

Lastly, His Majestie hath written enough for the clearing himselfe from those false and odious imputations laid upon him in relation to the Irish businesse. I have only thus much to say, concerning anything intended for the relief of Ireland; It was great pitie they should want it there, but it is more pitiefull, the King should be forced to make use of it here.

It is not long since our neighbour Nation brought an Army into the Northern parts of this kingdome to the great detriment of the inhabitants there, and it was excused by invincible necessitie, which drove them hither. The necessitie his Majesty was driven to is sufficiently Edition: current; Page: [217] known, and might excuse him, in taking his own where he meets with it, and drawing it from his service abroad to that which more nearly concerned him at home. And when his Arms, Moneys, and Provisions are seized on wherever they be found intended for him, and imployed against him in Warre, the Lord knows how unnecessary, shall it not be lawfull for to take some part of them where he finds it for his necessary defence?

Indeed the distresse of Ireland by the help of wicked Pamphlets hath been used as a great engine to weaken the King’s reputation with his people; but upon whose account the heavie rekoning of that neglected Cause will be laid, together with the disturbance of this kingdome, any man in conscience may easily discern, that sees what sufficient and reasonable means might have been had for the security of Religion and Liberties, and for the redresse of all just grievances before this time. Which is the next thing considerable: What his Majesty hath done and profered to exempt these scrupules of fears and jealousies out of this people’s minds.

For Religion, if it be a new frame they contend for, I must acknowledge hee declares against all such; but if they desire the continuance of that true Protestant Religion, which hath been professed without interruption from the beginning of the Queen’s dayes, and established by the Lawes of this land, that he undertakes to maintaine, that he hath protested in the head of his Army to defend. For matter of Church-government and discipline he hath offered any just reformation, even with a respect to tender consciences in point of ceremony, hath often called His two Houses to the worke in drawing up the grievances to some head. For priviledges of Parliaments and Liberty of Subjects hee hath given them the like promises with the deepest Protestations, and by an excellent moderation, amidst the presurres and necessities of Warre, hath showen what respect he hath to the property and liberty of the Subject. Lastly, For his choise of Officers of State, he hath promised to admit any just exception, Edition: current; Page: [218] and thereupon to relinquish the person and as an assurance of all this, hath so far condescended as to take away Star-Chamber, High Commission, Bishops’ votes, &c. and the Continuance of this parliament, & the constant returne of a Trieniall. And now after all these promises and protestations and so many expressions of grace, can any man in conscience think there was yet place left for Propositions of such necessary concernment, that except they be granted this kingdome must be imbroiled in a Civill War, & the reliefe of Ireland neglected? I speake not this to cast any blemish upon the wisdome of the great Councell, or upon their desires and endeavours to gaine a great security to the publicke: but I would to God, the King were once thought worthy to bee trusted a little, and that the Consciences of his Subjects were more respected, which cannot so easily be commanded into a resistance, being very tender in the points of damnation, and taught out of God’s Word, Not to raise so much as an evill thought against the King, Eccl. 10. much lesse to lift up an armed hand.

Every man’s Conscience now is solicited to adhere either to the King in this great cause, or to joine with Subjects in making resistance. To draw it from Allegiance, tongues are set on fire of hell, which blast His Majestie’s Actions and Declarations, and books written by hellish spirits, enemies to peace and quietnesse, are suffered to issue forth into every corner of the Land to possesse the people, that his promises are but words, his Acts of grace were forced, he will not stand to them. It seemes then he must by force of Armes be compelled to be willing. But let us see whether a conscience that desires to be safe can be so perswaded in judging the actions and intentions of him (to whom it owes the highest duty under God) as first to conclude he intends not as he promises, and thereupon to resolve for resistance? No, it will direct itselfe by the rule of Charity, which is, not rashly to conclude upon the heart which it knoweth not, or to think any evill; and if the difference be betwixt two, as in cause, it will hold Edition: current; Page: [219] the rule of indifferency, impartially to consider the actions of both. Conscience therefore that it may be informed of his Majestie’s intentions, will it look upon him at such a distance as London and read him only in those horrid relations that issue thence, and conceive of him as they report him to the people? Or will it consider some failings that necessity has inforced, or other accidentall occurrences have occasioned, and from these conclude intentions to him, contrary to all his promises and Protestations? This would be too partiall, too uncharitable. Conscience ought alwayes to be tender in judging upon other men’s intentions, especially those of the Prince, and those to be concluded as evill, and to be made a ground for resistance, which runs the hazard of Damnation. In the 2 Chr. c. 21.10. Libuah is said to revolt from the King of Judah because hee had forsaken the Lord; a Text that is objected to us, and should have been answered in the first part: but it is impertinent as all the rest are, for it neither proves the principle, That it is lawfull for the people to revolt when the King forsakes Religion, but shewes that such revolt is a punishment from God upon such a King, though a sinne in the people. Nor doth it come home to the Case; for there the King had forsaken; here is only supposall that he will, and that groundlesse and unconscionable too. For as there was enough in David to clear these Jealousies upon which that rebellion of the people following Absalom was grounded, so is there on the King’s part, to direct conscience against this desperate uncharitable judgment, if it look at those many Acts of grace as new additions to that security, by which this State has so long stood, and from them conclude, He would not in a faire way deny anything reasonable. If it consider those many promises strengthened with the deepest protestations, enforced with desires of successe from God according to his just intentions, and all these, as proceeding from a King, under such affliction, in such danger, after such successe and experience of God’s protection, approving thereby the Edition: current; Page: [220] reality and sincerity of his heart. What conscience can here conclude contrary intentions in him, and not think it blasphemeth God and the King?

Furthermore, as conscience will not be uncharitable when it judgeth upon the intentions of another man’s heart, so neither will it be partiall when it judgeth between two, unto which of them it should incline: and therefore he that is abused to believe amisse of his King and solicited to enter this way of resistance, is highly concerned first to consider, whether they also that are the main directours of it, and to whom he would adhere, doe discharge their trust they are called to, I say such an one, unlesse he will resigne up his faith to men, and receive their dictates as the immediate rule of his conscience, must consider whether all be just and honest that is done in that way? Whether to divest the King of the power of Armes and to use them against him, be to defend his person, Rights, and dignity? Whether the forcing of the Subjects’ property, to the advancing of this resistance, and the imprisoning of their persons for deniall, be the maintaining of the right and liberty of the Subject? Whether the suffering of so many Sects to vent their doctrines with such liberty, and to commit unsufferable outrages upon the worship of God, with such licentiousness, be a defending of Religion and the established worship of this Church? All these duties every Subject respectively is bound to discharge, and the neglect of them His Majesty has chiefly charged upon those that he conceives the chiefe directours and Actours in this resistance made against him, and every man in conscience ought seriously to consider it.

The necessity of the Common-wealth is pretended to defend the not defending of the premises; when as no necessity may excuse any failings on the King’s part, as if his promises, by which he stands obliged to his Subjects, did not suppose they for their parts also should performe. I know not how some particular men may be engaged and contract a necessity of resisting, or seeking safety by Edition: current; Page: [221] Armes; but I am perswaded, no man in Conscience can thinke it a necessity of the Common-wealth to have all confounded, or of a Christian to run the hazard of damnation by resisting. My conscience tells me, and will theirs one day tell them, how much they have to answer for not improving that grace and willingnesse, they had experience of in His Majestie and might still have found in him, to the speedy and happy Reformation of this Church and State. I pray God to give them Consciences truely inlightned, and bowels truly compassionate, that they may speedily and feelingly be sensible of the miseries this Land grones under, and faithfully examine how far they are answerable for them by rejecting such reasonable meanes of security, as they might have had for the safety of this State. Amen.

And now if there be any one that will run the hazard of this resistance, I desire he would first set his Conscience before the Tribunall of God, where it must appeare, and consider whether it will excuse him there, when he has shed the bloud of others, and expended his owne, to say, I verily supposed and believed my Prince would change Religion, overthrow our Liberties. I must tell him it will not be safe for him to present such a Conscience at that barre, a Conscience that wanted the rule of Faith to warrant and perswade the lawfulnesse of resistance on such a supposall, a Conscience that wanted the certainty of perswasion that the Prince’s heart (which God only knowes) was so inclined, a Conscience that wanted the judgement of charity, in concluding such intentions in the King notwithstanding all his promises and deepest protestations made in the time of his trouble, without which Charity all is nothing though he layes downe (as he thinkes) his life for Religion. Such a Conscience I must needs conclude sinfull, and liable to that which the Apostle threatens unto Resistance, Damnation.

finis.
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Charles Herle, A fuller Answer to a Treatise

[Charles Herle, 1598-1659]

A

FVLLER ANSWER

TO

A TREATISE

Written by Doctor FERNE,

ENTITVLED,

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.

Rom. 13.1.

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.

LONDON,

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.

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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 Edition: current; Page: [225] 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.

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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, Edition: current; Page: [227] 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 imminently Edition: current; Page: [228] endangered, 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; Edition: current; Page: [229] 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.

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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 Edition: current; Page: [231] 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 Edition: current; Page: [232] 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 his Edition: current; Page: [233] Law. 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 Edition: current; Page: [234] 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 Edition: current; Page: [235] 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 Edition: current; Page: [236] 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 Edition: current; Page: [237] 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 Edition: current; Page: [238] 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 Edition: current; Page: [239] 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, Edition: current; Page: [240] 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 Edition: current; Page: [241] 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 Edition: current; Page: [242] 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 Edition: current; Page: [243] 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 Edition: current; Page: [244] 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 electorum Edition: current; Page: [245] hominum, 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 Edition: current; Page: [246] 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.

PROP. 3

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 Edition: current; Page: [247] 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 Edition: current; Page: [248] 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) Edition: current; Page: [249] 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 Edition: current; Page: [250] 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 Edition: current; Page: [251] 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 Edition: current; Page: [252] 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.) Edition: current; Page: [253] 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 commission Edition: current; Page: [254] for 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 Edition: current; Page: [255] 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 Edition: current; Page: [256] 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.

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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 Edition: current; Page: [258] 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 Edition: current; Page: [259] 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 Edition: current; Page: [260] 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.

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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.

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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 Edition: current; Page: [263] 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.

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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 Edition: current; Page: [265] 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 Edition: current; Page: [266] 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 Edition: current; Page: [267] 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 Edition: current; Page: [268] 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 Edition: current; Page: [269] 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 Edition: current; Page: [270] 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 Edition: current; Page: [271] 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, Edition: current; Page: [272] 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 Edition: current; Page: [273] 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, Edition: current; Page: [274] 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 Edition: current; Page: [275] 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 Edition: current; Page: [276] 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 Edition: current; Page: [277] 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.

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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 Edition: current; Page: [279] 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.
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William Ball, Constitutio Liberi Populi

William Ball

Constitutio Liberi Populi.

OR,

THE RULE

OF A

Free-born People.

BY

WILLIAM BALL

Of

BARKHAM, ESQVIRE.

In Deum Omnia.

Printed, Anno Dom. 1646.

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Little information has survived about William Ball of Barkham, esquire. He and his friend Sir Francis Pile, baronet, to whom he dedicated “Constitutio Liberi Populi. . . ,” were both from Berkshire. Ball was probably the William Ball, attorney of the Exchequer Court’s Office of Pleas. If so he started out writing as a royalist pamphleteer but apparently had a change of heart by 1645 when he stood for, and was elected to, the Long Parliament for Abingdon. Certainly the views expressed in this tract published the following year would have placed him among the radicals.

The preface of the present tract is dated 12 May 1646, the month Charles I surrendered. The probable publication date was 18 June 1646. The collapse of the royal cause with the surrender of the king had provoked urgent discussion about the appropriate shape of a future government. Concerns that had arisen during the first winter of civil war, when Parliament was negotiating with the king, reemerged with greater force. Again there was the danger, as radical supporters of Parliament saw it, that members of the Commons eager for a settlement might betray the cause.

Ball’s tract makes it clear, however, that he was a champion of popular, not parliamentary, sovereignty. He insists that if a people are free-born as the English are, ultimate power resides in them, not in Edition: current; Page: [283] their government. That being so if either the king or Parliament attempted to deprive them of their rights, the people were entitled to resist. In this he differs from the Levellers who looked to representative government to protect the people. When Levellers referred to appeals to the people, they meant new elections. Their goal was to make parliaments more truly representative.

“Constitutio Liberi Populi” appeared in a single edition. Other tracts by Ball would follow. In 1648 he engaged in a lively published exchange with the imprisoned royalist judge, David Jenkins, over the power of kings and the role of the people. There is uncertainty over Ball’s activities after 1648. Although he was not purged from the Long Parliament by Colonel Pride in December of that year, he did not serve in the Rump Parliament that succeeded it. Ball’s friend Pile had been elected to Parliament about the same time as Ball and, like Ball, was not excluded during Pride’s Purge but does not seem to have sat in Parliament after that event. Both men may have been so distressed by the army’s purge of Parliament that they chose to abandon their seats. Such behavior would have accorded with Ball’s views about sovereignty residing with the people. In any event Ball continued to publish during the 1650s.

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Constitutio Populi Liberi. Or, the Rule of a Free-Born People.

First, Reason is Queen-Regent of Human Affaires; by the sight whereof men discern to walke in the prudent paths of Morality and Policy, even as by the Light of the Day they discerne to tread the paths of the Earth. And albeit that this interior light of understanding is in Divine things darkened, by the fall of our first Parent, yet doth the Eternall Light ever communicate to Mankind sufficiency of Reason (I intend for worldly things) thereby to direct his goings out, and comings in (according to the unnecessitating determination of God) as it were by a cloudy Daylight, though not a cleare Sunshine, whereby the Actions of men may severally be discerned.

2. Not long since I wrote a small Treatise, intituled, Tractatus de jure Regnandi, et Regni, or the Sphear of Government,1 the which albeit I conceived that I had squared it according to the Rule of Reason; yet some conceive, that it wants its true proportion, or line, and that I have too much extended the Innate liberty of the Free-born People of England: to satisfie (or otherwise convince) such, I have published this Epitome of State-Rule, or Government, desiring all men to weigh, and consider what I have written, not with the Prejudicating Eye of Affectation (which many times misleadeth apprehensive judgments) but with the Ballance of Reason to ponder every Graine, and if the weight be just, and levell to approve, and accept of it; if somewhat too light, to adde of their own understandings what is deficient.

3. It is certain, that had Man never fell from his state of Innocence, there had been a superiority, or rather priority in Nature (viz. That the Parent should have been known and reverenced as the Instrumentall cause of the Child, &c.) but there had been no soveraignty, Edition: current; Page: [285] and consequently no subjection; for had there been no sinne there had been no need of a justiciating Power, nor a Subject to which that Power could have determinated, or terminated itself; every man’s Actions would have been regulated by the Eternall Law, written in the hearts of men; So that there had been no need of Additionall, or Nationall Lawes. Wherefore (by the way) I cannot assent to the Opinion of that Gentleman (Fortescue) who said, that all Mankind should have been governed by the Lawes of England, if Adam had not sinned in Paradise; for by his favour if Adam had never sinned [in School-Reason, or Divinity] he had either always lived in Paradice, or else finished a compleat thousand years (which the Apostle Peter calls a Day with God, 2 Pet. 3.8.) and then had he either been assumed into Heaven alive, or else (if God had decreed a separation between his Soul and Body) he had yeelded himself into the hands of his Creator, sine dolore mortis, sine timore paenae, without pain of death, or fear of punishment, and had left his Earthly habitation to his posterity, who should have possessed and enjoyed the same, without any the least contention, or controversie, regulated only by the Eternal Law aforesaid. But (to return) no sooner sinne, but with it subjection entered as a curse, and therefore God said to woman, that she should not only bring forth in pain (which God would have dispenced withall if she had not sinned) but also that her desire should be subject to her Husband, and he should reign over her, Gen. 3.16. It is very probable that if she had not sinned, she should notwithstanding have tendered a reverence to her Husband as more noble in Sex and created before her in time but she should not have rendered a subjective Obedience, if disobedience had not made her subject.

4. And albeit that subjection is a scourge of sinne, yet it hath pleased the Almighty according to his divine will, to cause some Persons, and Nations, to be more subject than other some; many times enthralling, and enslaving them by Tyrannicall, or Imperious Instruments Edition: current; Page: [286] for their sinnes (as the sacred Bookes of the Judges, Kings, and Chronicles sufficiently declare) and upon their Humiliation, or for other secret causes known to his Divine wisdome, he hath mercifully released, or mitigated their yoak, as the sacred Writ yea and human Records testifie at large. And sometimes God hath done this by speciall, or miraculous meanes, as he did to the people of Israel; sometimes by ordinary wayes, as the Florentines (albeit of late enslaved) purchased their liberty of the Emperour for money, and so also did other Cities of Italy, and elsewhere in Europe, others by plain defiance and Arms, have regained their Freedome (that is, to dispose of themselves) as did the Cantons of Switzerland, the Provinces of Holland, Zeland, &c. and either of these wayes may be said to be just; for Id Iuris est, quod Nationis est, that is lawfull, or Law which a Nation generall approveth, or admitteth of; and there need no speciall Warrant from God for anything that they shall do agreeable to their Naturall, or Human Reason, anymore than it needed to the petty Kings and people of Sodom, and Gomorrah (instanced in my former Treatise) or to the Nation of the Jewes in the time of the Machebees. And albeit that a Nation in generall should approve, and admit an erroneous Law (as I know not any Nation, State, or Parliament that is infallible) yet such Law ought to be kept, and observed as a Law, because men have power to tie and oblige themselves to inconveniences (if God prevent not and prudent Reason dictate not the contrary) as to conveniences, and their Errour being Nationally generall, must either be admitted of all persons (comprehended within their Rule) as legall just, or else permitted, because it is constituted by the highest Power human, from which there is no appeale but to God, who in his good time will either mercifully illuminate their understandings or reform their Errour, or justly chastise them for their perseverance in Errour.

5. And the Rule of a Free-born People, or a People free to dispose themselves consists in that, wherein the People in generall constitute Edition: current; Page: [287] or determine themselves, not in that wherein they are constituted; or determined, tanquam ab alio agente, by some other instrumentall cause, for then are they not free. So that it is destructive to the very Essence of their Freedome not to be able to determine themselves to that which they conceive to be Bonum commune, that being their adaequate, and proper object. And this they must not be able to do sometimes only, and originally, but perpetually, otherwise, deficiunt a libertate proprie loquendo, & sunt tantum liberi secundum quid, vel denominative; they cease to speak truly, to be free, and are only free in Denomination or a kind of Titulary Freedome; for naturall Reason dictates, that everything ceases to continue, when the Form thereof, or the Originall Form ceases to be; so that if a people can Originally dispose or determine themselves, and cannot afterwards Actually do it, their Original power, or form of disposing or determining themselves ceases to be—But it is to be noted, that no People in the world (intending to be free) subditi potius quam subjecti, and who have either conserved their Originall Freedome, or Actually regained it, do, or did ever grant a Power to one, or more or constitute a Power in one, or more that should be destructive to their intended Originall Freedome; For as John Cook of Gray’s Inne Barrester, in his Epistle Dedicatory, in a Booke entituled the Vindication of the Professours, and Profession of the Law,2 hath ingeniously said; All Power and Authority is given for preservation, and edification, nothing for destruction and desolation; so that albeit a People, or Nation, to avoid disorder, do constitute a Ruler, or Rulers to conserve Order and do generally consent to direct their human Affaires according to such Rules as shall be by him, or them, or both given or prescribed; yet they ever intend that such Rules must not be directly opposite, or against the Law of Nature, or their Naturall Liberty. If they be, they may chuse whether, Edition: current; Page: [288] or no they will admit, or receive them; they constitute, or institute their Ruler or Rulers their power extensive, but not primitive, or intensive, that is to say, their innate and inseperable Freedome ever intended to dispose, or determine themselvs, In bonum commune prout omnibus visum erit, this they never part, or parted withall; for at what time soever they should do it, they cease to be Populus liber, or liberi subdita, a free People, or a People which are freely under a Law by common consent as aforesaid—And of this I shall instance a similitude in Nature: The Element of Water is not of itselfe extensively coloured, but is apt or applicable to receive any colour; yet it is intensively white (it being Nature’s Innocent Originall colour) as is sufficiently discerned, when it is converted into Snow, or congealed into Ice, or praecipitated Torrent-like, by an extraordinary fall. So People or Nations are not of themselvs extensively regulated but apt or applicable to receive any Rule, which they, whom they institute, or intrust, shall apply unto them; howsoever they are intensively free to dispose themselves (it being their Natural-Innocent-Originall Rule) as is sufficiently discerned by the severall Alterations of Government in Athens, Rome, Geneva, Switzerland, Holland, and many other places, where the people’s affections have been either congealed by their over-domineering Lords (as it were creatures of the second Region of the Aire) or (Torrent-like) have been praecipitated by an extraordinary fall, occasioned by some violent disturbers of their common Liberty (τὸ ἀνθρόπινον ἀγαθὸν) the generall benefit of Mankind. For my part, Anathema be to such, who desire to deprive a King of His just Prerogative; Anathema be to such, who desire to deprive a Parliament of their just Priviledge: but Anathema Maranatha3 be to such who should any way desire to deprive a Free-born People of their just Liberty, or Propriety.

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6. Nor can I conceive, but that the English Nation, or People are (if rightly considered) one of the most freest Nations in the World; for they cause, or require their Kings to take their Oaths to conserve their Lawes and Liberties, before the Crown actually invest their Temples; thereby shewing that they reserve, and intend their generall Liberty and Propriety. And albeit, that a King of England have his Ius Regnandi, or Right of Reigning by Inheritance as I have instanced in my former Treatise; yet illud jus quamvis sit quoad potentiam, sive officium potestatis derivativum, est tamen quoad exercitium potestatis Relativum, that Right of Reigning, although it be derivative in respect of the King’s personall Authority, or rather Office for Authority, yet is it relative in respect of his Exercising, or performing that Authority; for though the people obey the King as their chiefe Ruler, or Magistrate before his Oath taken, yet it is ever with reference, or relation, that He should take His Oath for their preservation, and good in generall, and performe the same; otherwise they have recourse to their primitive, or intensive power, as in the case of Edward the second, from whom Sir William Trussell, Speaker of the Parliament, in the name of all men, or people of England, constrained, or took his Royall Office, or Authority; or to speak more truly, deprived him of it, without any former precedent, exercising the intensive power of the people; for Trussell said not to EDWARD the second, in the Name of the Lords and Commons assembled in Parliament, or in the Names of the Commons assembled in Parliament, but in the Name of all men or people of England, &c. thereby expressing, or manifesting the People’s Primitive, or intensive Power, more than the Parliament’s secundary or extensive Authority.

7. And as the English Nation, or People cause their Kings formally to swear, or take their Oaths to conserve their Lawes, and Liberties; so they cause the Parliament (I meane the Body collective, or representative of the People, viz. the Knights, Citizens, and Edition: current; Page: [290] Burgesses) to take their Oaths (if not formally) yet at the least virtually, to conserve their generall Liberty, and Propriety, to do all good they may for the places that intrust them; all which they faithfully promise at their Elections. So that the English Nation, or People never gave, or voluntarily assented, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary power over them, but only a Discretive, or Legall Authority intended ever for their good in generall; their ever reserved, and as it were Essentiall Propriety.

8. Wherefore I cannot but marvell at such (whether Kingly Royalists, or Parliamentary Realists, in this case it makes no matter) as by a kind of Idolizing King, or Parliament, or King and Parliament, would suppose, or perswade the People that their Lives, Liberties, and Proprieties are disposable by King, and Parliament, ad Placitum; one John Cook of Graye’s Inne Barrister,4 by me already cited, hath in his Vindication of the Professours, and Profession of the Law inserted, that I have in my former Book, intituled, The Spheer of Government,5 introduced a dangerous Opinion, by putting, or stating a supposition, or rather a Praesuppositive case, that if King, and Parliament, or King, or Parliament, should make an Act that they would, and might dispose of all Subjects’ Estates in England (he should have added ad Placitum, for those are my words) that in such case the Counties, Cities, and Townes corporate might if not remedied declare, and protest against such an Act, if violated, then they might defend themselves by Armes. And to convince this my Assertion, in the next Page, he sayes, if the supream Court be not supream to all intents, it is not supream to any intent, because there is an higher above it. This is no good consequence; for a Power (and consequently a Court of Power) may bee supream to some things, yet not to all. The King of Polande, for life, is supreame Edition: current; Page: [291] to appoint what place he thinks fit within the Precincts of the Dominions of Poland for the convening or assembling the Diets, or Courts of the Peers Spirituall and Temporall of that Kingdome; and the King of Poland is also supreame to censure, or punish any of his owne Tenants, and Vassals, or Slaves; yet is he not supreame to censure, or punish any of the chiefe Nobility, but by consent of his Assembly, or Court of Peers; nor can hee meddle with any of their Tenants, Vassals, or Slaves; or determine absolutely of Peace or Warre, &c. In the Common-Wealth of Geneva (which he calls a pure Democracy) the People in generall are supreame to nominate, or elect Two Hundred which are the Grand-Councell; and those Two Hundred are supreame to nominate, or elect the Twenty five, and yet not supreame to elect the foure Syndiques, or Annuall Governours, or rather Rulers, &c. So that it is no good consequence (as afore-said) to affirme that, if the Supreame Court be not supreame to all intents, it is not supreame to any intent, because there is another above it. For in Geneva it is evident, that the Two Hundred or Grand-Councell, is the supreame Court, and yet not supream to all Intents; the People indeed, or Common-Wealth in generall, (which are the supreame Power, though not Court) are supreame to all Intents; but of that hereafter.

9. But the Gentleman sayes, that there are in the Kingdome so many thousand Acres of Land, either the Parliament may settle, and determine the Right of all their Acres (hee meant surely those Acres) or not of any one of them, for there is no medium, &c. But what is this to the purpose, of the Parliament having a power to dispose of all Subjects’ Estates ad placitum? Who knowes not, but that the Parliament can determine the Right of all Acres in England, in foro judicii, as v. g. the Parliament can determine whether White Acre belong to Right to Oakes, or Stiles, let the Title of either of them be never so difficult, or obscure, and the Parliament can determine whether or no, Oakes Edition: current; Page: [292] or Stiles have forfeited their Propriety of, or to White Acre for Delinquency, &c. Moreover the Parliament can (which no other Court can doe) applicare in necessitatem Regni, apply to, or for the necessity of the Kingdome so much of the profits of White Acre, as to them shall seeme convenient; provided that the cause, or causes thereof be made manifest, that Oakes, Stiles, and all men may (if they will) take notice thereof; and provided also, that an Accompt be given how and which way the profits of White Acre have beene for such cause, or causes applied, and disposed of; for no Free-born Englishman (much lesse the Nation in generall) ought to be deprived of any his Right, or propriety without good cause. Notwithstanding the Parliament of England cannot disponere ad Placitum, dispose at their will and pleasure barely of White Acre (no, nor of one Acre of waste in England) v. g. that whereas White Acre belongs of Right to Oakes, Stiles shall notwithstanding have it because it is their will and pleasure; this they cannot doe; for at what time they should do it (albeit I suppose it almost impossible that they should do it, as I have formerly instanced) they faile, or fall from the Protection of the People, and usurpe to themselves an absolute Arbitrary and irregular Power, destructive to the generall good of the People and consequently cease to be a Parliament, and become Tyrants and Oppressors.

10. I cannot therefore but somewhat admire, that a Lawyer, and one that seemeth unto me to have understood Logic, should be (having been as it seemes to me sometimes seasoned with Intellectuals) so unsound in his Intellectuals, as not to distinguish between Disposing at Pleasure, and Determining of Right, or setling according to Right, being things of a different species, and not magis, or minus, in the same species. But it is not amisse to take a little notice how the Gentleman opposes himself; in his Book Page 4. he sayes, it is resolved in the Earl of Leicester’s Case, that an Act of Parliament against the Law of God and Nature is void; but this must be cautiously understood (sayes Edition: current; Page: [293] he) that I speak not of secundary, or lesse principalls of Nature, &c. Pray let him tell me, whether to dispose of Oakes’, or Stiles’ white Acre ad Placitum, be not directly against the Law of God and Nature; the Decalogue sayes, Thou shalt not steale; Thou shalt not desire thy Neighbour’s house, &c. And Nature dictates, doe, as thou wouldst be done unto. Now he, or they that dispose at their owne pleasure, of their Neighbour’s Acre, or Acres, do steale, for that he, or they deprive their Neighbour, or Neighbours of their Right, and Propriety; they covet also, for that they desire, and acquire to themselves a power of disposing at pleasure; they oppose also directly the Law of Nature, for they would not have anyone to dispose of their Propriety ad Placitum, or at their own wills, and therefore ought not to doe it to another; so that if the King and Parliament should make an Act, or King, or Parliament make an Ordinance, that they might dispose of all Subjects’ Estates, ad Placitum, &c. they oppose the Law of God and Nature, and even by his own citation, and assertion, it is void. And I am sure it is also directly opposite to the Rule, frame, and constitution of a free Nation (such as are the English, being no Turkish, or Muscovian slaves) where the Rulers and Governours are but intrusted (as I in my former Treatise have instanced) for the generall good of the Nation. And the Gentleman, albeit he hath cavelled at me in the latter end of his Book, yet hath he confessed, and acknowledged as much in his Epistle Dedicatory in two severall places. The first is by me already cited, notwithstanding I will mention the words again; which are, all Power and Authority is given for Preservation, and Edification, nothing for destruction, and desolation; the others in the same page are, for by the fundamental constitutions of this Kingdom, and the very frame and series of Government, the Power is intrusted into their hands to superintend and supervise all other Courts of Justice. Now surely if Power be intrusted to the Parliament (as truly it is) then can they not go beyond their Trust to dispose of the Free People of England their Estates, Edition: current; Page: [294] ad Placitum, but only to determine of them, ad Rectum, or Ius, or to apply them ad necessitatem Regni, to or for the necessity of the Kingdome, of which necessity they are the Judges. The Gentleman sayes, that many a man marries a widow that would be gladly rid of her children. For my part, I know not whether, or no, the Gentleman be married; or whether he have married a Maid, or Widow, but I am sure (if he rightly consider it) he may be glad to be rid of his sickbrain begotten Childe [his Asserveration that the Parliament is unlimited, and consequently may dispose of all the Subjects’, or Peoples’ Estates, ad Placitum] for I verily believe, that no man found in his Intellectuals will harbour it, or give it entertainment, nor can himself sustain it.

11. I grant him that the Parliament is the highest Court extensive (viz. to conserve the Rule, Order, &c.) but the People in generall (viz. the Counties, Cities, and Towns corporate) are the highest, or greatest Power Intensive, in that they are the efficient, and finall cause under God, of the Parliament. Now the efficient and finall causes are the most noble of causes, nor are they, or can they be subject, or subordinate to their owne effects, so farre forth as they are causes of such effects; so that the Parliament can never deprive the Counties, Cities, and Towns Corporate, by an Act, or Ordinance whatsoever, of their innate, and inseparable Right and Power of Electing, or creating Knights, Citizens, and Burgesses, de futuro, or for time to come, whereby a Parliament might be instituted, or assembled by any other way, than by way of free Election. No more can the Parliament deprive the free People, or Nation of England, of their Generall Liberty, and propriety, for in these things the Sphear of the Parliament’s Activity is circumscribed by the Nation’s large Bulke of Primitive, or intensive Power. Wherefore the Gentleman mistakes when he sayes page 89. It is impossible that the supreame Court in any Kingdome should be limited, &c. In these Precedents, amongst free Nations all supreame Courts are de facto, limited; as in Aragon, Geneva &c.

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And for my part, I cannot find that the Parliament Practiceth an unlimited or absolute Power, for amongst other things they have instituted Committees, and Sub-Committees of Accompts, not only to vindicate themselves from the scandall imputed by some, (viz. that the Parliament should exact more from the people than the necessity of the Kingdome required, &c.) but also to give the people a generall satisfaction, how, and which way their Estates are applied, and imployed for the Necessity of the Kingdome.

12. And now I think good further to satisfie the Gentleman and such as adhere or incline to his opinion aforesaid, concerning the Primitive or Intensive power of a free People. I have already said that a free People are ever free to dispose, and determine themselves in Bonum commune, prout omnibus vissum erit, to a generall common good, as it shall seeme good to themselves: and that they never part, or parted with this power, for that at what time soever they should doe it they cease to be Populus liber, or liberi subditi, a free People &c. And to make this Assertion more conspicuous, and plaine, I instance this simile; Joint Free-holders, or Free-holders jointly, let a Lease for one thousand, or two thousand yeares, if the World endure so long, with reservation notwithstanding of a continuall acknowledgment to themselves, or otherwise the said Lease shall determine, and cease to be, and it shall be lawful for the said Free-holders, their Heires, or Successours to reenter into the said Free-hold, or Free-holds, and to dispose and settle them, at their pleasure. Even so a free Nation, or People let a Lease of their power for one thousand, two thousand, ten thousand yeares if the World so long endure, (no matter what time) to their Rulers (whom they institute and intrust) in which they give and grant power to them of Determining conserving, and applying their Liberties, Rights, and Proprieties justly, So to the particular good of every man, as may not repugne the generall good of all; so to the generall good of all men, as may not annihilate the particular good of one unjustly, or indirectly; with reservation notwithstanding of a continuall Edition: current; Page: [296] acknowledgment to, or for themselves, that they (viz. the Nation, or People) are the efficient cause of their power, by electing, and creating them; and that they are not to domineer over, or dispose of their Liberties, and Proprieties, ad placitum, but only to determine of them ad Rectum, and apply them to the generall good of the Kingdome, according to the necessity of the Kingdome, Nation, or People, as aforesaid; if otherwise their Power determines, and ceases to be; and it may be lawfull for the Nation or People to re-enter viz. to make use of their first primitive power, and to dispose and settle themselves at their pleasure, or as they shall think good. And even as the Free-holders cease not to be Free-holders, notwithstanding their long Lease, for that there is a Reservation of a continuall acknowledgment due unto them, and a power of Re-entry in case of Breach of Covenants, and the like; even so a free Nation, or people, cease not at any time to be free, notwithstanding their long Lease of Trust, for that there is a Reservation of a continuall acknowledgment belonging unto them (viz. that they are the efficient cause, de saeculo in saeculum, from Age to Age) and they have likewise a power of using their power primitive, and intensive, or power alwayes intended and reserved, in cases aforesaid. Notwithstanding, as the Free-holders cannot re-enter, but only in case of Breach of Covenant aforesaid; for if otherwise they do it, they are meere usurpers, and Oppressours; so the free Nations, or people cannot use their primitive, or intensive power, but only when the fundamental frame of their Efficient Power and their Liberties, and Proprietie are destroyed or violated ad placitum, as aforesaid, if otherwise they doe it they are meer Rebels and Anarchists, for they have intrusted all their other Judiciall Power concerning Determination, Conservation, and Application to their Rulers.

13. The Gentleman whom I have formerly cited hath said in his Book, that he never heard or read of anything more prejudiciall to Edition: current; Page: [297] the Parliament’s Authority, than my Assertion in my last Book, and in this, (viz. that the Parliament cannot dispose of the Free-people, or Subjects’ Estates here in England, ad placitum; but I must tell him that I never read of a more prejudicious, or pernicious to the Parliament, than to say that they may doe it; for what say many of the vulgar; if the Parliament may dispose of our Estates at their pleasure, how shall wee know that they will not? If any man tell them, that it is very unlikely, that so many will never consent to doe such a thing, for that they might by that means enslave their own Posterities. What say they, if they can dispose of all the Subjects’ Estates ad placitum, for ought we know they might exempt themselves, their Heires, and Successours; and likewise for ought we know they might make a Law that they will no more be Elected, or created by the Counties, Cities, and Townes Corporate, but by a perpetuall Denomination by, or from themselves. And what can be of more dangerous consequence, than that such an Opinion, or Opinions as these should once take root in the mindes of the Common People? And what can sooner cause them to take root than that they finde and reade a printed Booke allowed of to that purpose? But if one tell the vulgar, that the Parliament cannot dispose of the Subjects’ Estates ad placitum, or meerly at their pleasure, but that they can only apply in an equall way the Estates of the People to, or for the necessity of the Kingdome, of which Necessity they are the Judges; and likewise that the PARLIAMENT cannot make a Law, or Ordinance, that the Knights, Citizens, and Burgesses, shall, or may be appointed, or denominated by themselves (thereby to alter the frame and constitution of this NATION) but that they must perpetually from Age to Age be Elected, or created by the Counties, Cities and Towns Corporate; then they begin to harbour a better Opinion, and are more inclinable to undergoe their Ordinances. And I believe that the intent why the HONOURABLE HOUSE OF COMMONS published lately Edition: current; Page: [298] a Declaration the Seventeenth of April, 1646.6 Ordered to be read in Churches, was to undeceive the People that they never had any thought to dispose of their Estates ad placitum, and so forth; for they expresly say, and Declare, To maintain the Ancient and Fundamentall Government of this Kingdome, to preserve the Rights and Liberties of the Subject, &c. Wherefore I would not have the Gentleman, or any other to run beyond the marke; I like not Quid nimis, it hath been the cause of many Enormities in Church and Common-wealth. For my part I wish, as I have ever wished, and formerly expressed myselfe, that the King might enjoy his just Prerogative (as some call it) or Right of Reigning; and I wish, and desire as much as any other, that the Parliament might sustain their Priviledges, and Judicatory Power. But I could never suffer, nor would I if it were in my power any way to prevent it, endure that my Nation, or Fellow-Subjects should be enslaved by any Exorbitant Power (Potentate or Potencies) Forrain or Domestic; And I doubt not, but that the Ruler of Heaven and Earth will by his Divine Providence establish such Rulers and Rules in this KINGDOME, as may be a meanes to conserve this Nation from slavery and thraldome, AMEN.

Furthermore, having in my former Treatise and in this affirmed that the Parliament is the supreame Power Judicatory to censure and determine all matters doubtful, and disputable (for such hath been the constitution of this Kingdom for many Ages) I conceive therefore that the Parliament may, and have only Power to settle what form of Religion they shall think good; and albeit they should erre therein (as Parliaments may erre, and some de facto have erred) yet their Ordinances Edition: current; Page: [299] oblige Iure humano; that is, men ought either to obey such Ordinances, or if otherwise their Consciences dictate such Ordinances to be erroneous, they ought to undergoe such penalties as should be by them inflicted if they should impose or ordain any such. And as it is in the power of the Parliament to inflict penalties, so is it in their power to mitigate penalties, or inflict none at all for matter of Religion; wherefore for my part I greatly honour and reverence the care that the Parliament seemeth to take, and which the Honourable House of Commons have published in their Declaration 17. April 1646. already mentioned, That they have not as yet resolved how tender Consciences, such as differ not in Fundamentals may be provided for, so as may stand with the peace of their soules, and peace of the Kingdome; thereby intimating that they intend not to use severity, for matters of Religion meerly (a course though practiced by Pagans, befitting no men, much lesse Christians) but rather by clemency to induce men to embrace, or follow such Orders, or Ordinances touching Religion, as they shall institute. Moreover, I cannot but greatly blame such as would save men’s Consciences wrackt and enforced in disputable matters, or Tenets of Religion; such as blame Domineering in others, and yet would exercise it themselvs not considering what the Apostle Pet. hath written, I. Pet. 5.3 μηδ’ ὡς κατακυριεύοντες τῶν κλήρων ἀλλὰ τύποι γινόμενοι τοῦ ποιμνίου that Rulers should not be as over-domineering Lords or Christ’s Flock, but as Types, or examples to the flock; nor do such consideratly weigh the Apostles’ words, Gal. 6.1 Brethren, if a man be overtaken in a fault, ye which are spirituall, restore such a one in the spirit of meeknesse, considering thy selfe, least thou also be tempted. He bids them not menace, much lesse persecute for errour, nay the Apostle directly forbids it, Gal. 5.15. But if ye bite, and devour one another take heed ye be not consumed one of another, as if he had said, if ye break the Bond of Christian Charity, take heed least God give you not over to your malicious intentions and Edition: current; Page: [300] practices, by which ye may become Instruments one to destroy another. The holy Apostle likewise Rom. 14.10. forbiddeth men directly not so much as to judge a Brother for things indifferent, or for things which Christian Liberty in Christ giveth leave unto; for saith he, We shall all stand before the Judgement Seat of Christ: but it may be some will say, these, and such like Councels, or Precepts of the Apostle were spoken, or delivered by him concerning meeknesse, to be used in admonishing our Brethren, in errours meerly of Practice not of Doctrine, or in things not cleerly expressed in Scripture, not in things evident and plain in Scripture. To such I answer; what are the great matters in debate and controversie, or rather small matters in great strife, and contention now adayes agitated, but either matters meerly Practicall or exteriour Formes of Worship and Ceremonies, whether tollerable, or intollerable; or else matters obscure, or but by probable Arguments deducible out of Scripture, as Lay-Elders (a Businesse now of dayes, of no small consequence) whether they be not sufficiently warranted by this Text I Tim. 5.17. Let the Elders that rule well, be counted worthy of double honour, especially they who labour in the Word and Doctrine; the Greek hath it, οἱ κοπιῶντες ἐν λόγῳ καὶ διδασκαλίᾳ “labouring in Word and Doctrine,” and from hence it must be deduced forsooth, that there were some Elders that did not labour in the Word and Doctrine, and consequently that such were Laymen. Truly others that are as sound in their judgments (it may be) as those that make this Deduction, will say that the meaning of that Text is this viz. Presbyters (or Elders) that rule well be accompted worthy of double honour in respect of the younger or inferiour; but chiefly such as beside their care, and ordinary performance of their charge labour extraordinarily in Preaching, and exhorting or edifying; even as one might say, let Civill Magistrates that govern well be counted worthy of double honour, in respect of other ordinary, and inferiour Persons; but chiefly such as beside their care, and Edition: current; Page: [301] ordinary performance of their Offices, according to their Oathes, and Duties, labour extraordinarily for the Publique good, by advising, and consulting. I doe not finde that it could be deduced from this last inference, that Clergiemen were, or ought to be Civill Magistrates; nor can I finde that it can well be deduced from the Apostle’s words, that Laymen ought to be Presbyters, or Church-Elders: and yet a great deale of stirre is kept about this businesse, and such like; And some would faine have their but probable Deductions, if so much, to be Orthodoxal Expositions, and so to be held de jure Divino, that’s no presumption. But by the favor of such, I would fain know whether they are infallible, or no; if no, why would they then impose their Expositions de Jure Divino; if they are infallible, I would gladly know how they now come by such an extraordinary gift of Infallibility, and that the World (by their own acknowledgment) hath wanted it for so many Ages, as they say, in all Ages since the Apostles’ time; as I have said, that in Civill Affaires there should not be Quid nimis; so I say in Church-Affaires and wish that men (for alas what are we all but men) would not take upon them Quid nimis, especially in matters either indifferent, or else obscure, and difficult or such as may admit of severall interpretations, and Constructions. I will instance for Example sake one Text of Scripture; viz. ἐν ἀρχῇ ἦν ὁ λόγος &c. In the beginning was the word, &c. All Divinity tells us that Eternity is Identicum nunc, the selfe-same now, and that it hath neither Prius or Postivius, beginning, or ending; what beginning then can the Eternall Word (or Sonne of God) have? No beginning in time, because Eternall, nor in Nature because Increate. What beginning then? Or what may the word Beginning in that place signifie? Some will have the meaning of that Text to be this; In the beginning when the World was created, the word (verbum mentis) of the Father’s understanding was, and so if that were in the Beginning, that was before all Beginning; but this is no good consequence, sayes an Arrian, for the word might bee before Edition: current; Page: [302] the World, and yet be a patre tanquam effectus a causa, be as an effect caused by God the Father, and so have some beginning (as every effect hath) though before the World and to hold this is Heresie, for that the Father is not causa filii, but only Principium filii, not the cause, but naturall beginning of the Sonne. Others will have the meaning to be thus; in that beginning, or instant (which was, and is ever, or Eternall) wherein the Father knew formally his Essence, and Attributes, he spake, or begot the word of his mind, or understanding, being a Terme of his infinite Knowledge, not produced by necessity, or will, but emanating, or flowing as it were by naturall faecundity. Others will have the meaning to be thus; in that beginning or instant aforesaid, wherein the Father knew not only formally his Essence, and attributes, but also all creatures possible and existent he spake or begot the word of his mind or understanding; for say they, the word which is the Terme of the Father’s infinite Knowledg, is a perfectissima, & plenissima cognitione ejus, from his most perfect, and fullest knowledge; and from hence arise divers Arguments pro & contra, not only between the Thomists, Scotists, and other School-men, but also amongst other sorts, or Sects of Christians; but must men for these or the like disputable differences cut one another’s throats, or persecute one another? God forbid, there is not the least warrant in the New Testament for it. In the time of our blessed Saviour’s passing his humanity on the Earth, some there were casting out Devils in his Name, whom his Disciples forbad because they followed not Christ as they did; but our Saviour rebuked them, and bade them suffer them, and let them alone, saying he, or they that are not against us, are with us, adding moreover that it was not likely that any one should doe a miracle in his Name and speak ill of him. Our Saviour said not, that such as workt miracles in his Name should confesse, and speake all that ought to be confessed, and spoken of, or to his honour; but that such as spake not ill of him should (if they confessed his Name) be permitted, or suffered in this World. And shall not we then suffer Edition: current; Page: [303] one another in matters of Religion? Shall we ambitiously compasse our Neighbour’s goods, or meanes, under pretence of Religion, thereby scandalizing Christianity. No! Let all self-ends be abolished, and Peace and Union be embraced that we of this Nation may become an Elisium of comfort of Christian Charity, and mutuall Amity, one to another, and a Precedent of them all to other Nations.

William Ball
finis.
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Uncharted Waters

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John Goodwin, Right and Might Well mett

John Goodwin, 1594?-1665

Right and Might

Well mett.

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John Goodwin, a staunch Puritan and an Independent, was one of the most radical of the republican divines. He was not only a frequent contributor to the paper wars on constitutional and religious subjects before and during the civil war but also an instigator of them.

Goodwin was born in Norfolk about 1594 and educated at Queen’s College, Cambridge. In 1633 he was instituted to the vicarage of St. Stephen’s in London where he became a popular preacher. Alderman Isaac Pennington, later lord mayor and member of the Short and Long Parliaments, was one of Goodwin’s parishioners. Goodwin’s combative nature led him into one controversy after another. He helped draft the London clerical petition against Archbishop Laud’s infamous canons of 1640 which had upheld the divine right of kings and proclaimed the unlawfulness of resistance to authority. Goodwin was one of the first clergymen to support the resort to war. Despite his adherence to Parliament, however, his emphasis on a gathered church of followers convinced the parliamentary Committee for Plundered Ministers to eject him from his living in 1645. This action presumably soured Goodwin on some members of Parliament. His ejection did not keep him from his calling; Goodwin managed to continue serving as pastor of his independent congregation, which met in the vicinity of his old church. In 1649 he was finally restored to his living.

Unabashed by tough measures, Goodwin rushed to defend the actions of the New Model Army after its purge of the moderate members of Parliament on 6 December 1648. His astonishing tract, “Right and Might Well Mett,” has been described as the most striking document Edition: current; Page: [309] in the development of the Independent party’s political theory. Its ironic dedication to General Thomas Fairfax, a man who had hoped to preserve constitutional forms, was dated 1 January 1649, the day the Rump Parliament voted to bring Charles I to trial for treason. The first of the tract’s two issues, reprinted here, appeared the following day. In it Goodwin maintains that the New Model Army was a truer representative of the English people than the Parliament it had purged. As the representative of the people the army had acted to save the nation. It was justified, he argued, by “a Law of greater authority, than the Lawes of the Land,” the law of necessity. Goodwin even suggested that many of the laws of God, “thinke it no disparagement . . . to give place to their elder Sister,” the law of necessity.

Not surprisingly this tract provoked a reply within the week. Sir Francis Nethersole, former secretary to the king’s sister, the Electress Elizabeth, had taken no part in the civil war but felt compelled to rebut Goodwin. A second response, this time by a Puritan divine John Geree, appeared on 18 January. By 25 January when Nethersole released a further reply the king’s trial for treason had already begun. Goodwin has been referred to as the first Protestant minister to have approved regicide.

Goodwin continued to publish throughout the Interregnum. He was taken into custody at the time of the Restoration but treated with amazing lenience, merely being banned from holding any public trust. He returned to his London congregation but not to the income from it and died in the plague year of 1665.

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That the children of prey, and men lately under hope of dividing the spoile of this miserable Kingdome, when it should be reduced under the iron rod of enslaving tyranny and oppression (betweene which sad condition, and it, there was now but a step) should rise up with passionate outcries, and be ready to curse the Armie and their late proceedings, with bell, booke, and candle, is no matter of wonder, or much observation. But if the body of the people of the Land, or such who have no minde to be gratified with the sorrows or sighings of innocent men, should professe any dissatisfaction, or stand in conscience about the lawfulnesse or justnesse of such their engagements; it would argue, either first, that they alwayes lived not only free from oppression, but from the fear of it also, & so never had occasion to enquire, either upon what grounds, and by what means, oppression imminent may lawfully be prevented, or incumbent, be shaken off and suppressed; or else, in case they have suffered under oppression, that they never saw any visible or probable meanes of deliverance, and so wanted an inviting opportunity to consider, whether these meanes might lawfully be improved in order to such an end, or no. For certainely the grounds and principles upon which the said proceedings of the Army stand cleare and justifiable, are no parables, no darke, or disputable notions, or conceptions, but such, wherein even he that runneth, may read equity and truth; and which have been asserted for such, by grave, learned, and judicious men, who neither lent, nor tooke upon usury; I meane, who were no wayes interested in any such concernment, or case, as that now upon triall.

Though some other things have been of late acted by the Armie, wherein many pretendingly complaine of want of conscience and justice; yet I suppose they have done nothing, either more obnoxious to the clamorous tongues and pens of their adversaries, or more questionable in the judgements and consciences of their friends, than that late garbling of the Parliament, wherein they sifted out much of the drosse and soile of that heap, intending to reduce this body, upon the Edition: current; Page: [311] regular motion whereof, the well-being, indeed, the (civill) life of the whole Kingdome depends, to such members, who had not manifestly turned head upon their trust, nor given the right hand of fellowship to that most barbarous, inhumane, and bloody faction amongst us, who for many yeares last past have with restlesse endeavours procured the deepe trouble, and attempted the absolute enslaving, (which is, being interpreted, the utter undoing) of the Nation. So that if this action of theirs shall approve itselfe, and appear to be regular and conformable to such lawes, and rules of justice, which all considering and disingaged men conclude ought to be followed and observed in such cases, as that which lay before them; especially if it shall appeare to have been the legitimate issue of true worth and Christianity; I presume all their other actions of like tenor and import, will partake of the same justification, and honour, with it.

Let us first take into consideration the substance of such exceptions, which can with any pretence of reason, or colour of conscience be levied against the lawfulnesse of it. Afterwards if it be needful, we will consider further, whether those that be with it, be not more, or at least more weighty and considerable, than those that are against it.

The first born of the strength of those, who condemn the said act of the Armie, as unlawful, lieth in this; that the Actors had no sufficient authority to doe what they did therein, but acted out of their sphere, and so became transgressors of that Law, which commandeth every man to keepe order, and within the compasse of his calling.

To this I answer 1. as our Saviour saith, that the Sabbath was made for man (i. for the benefit of man) and not man for the Sabbath; so certain it is, that callings were made for men, and not men for callings. Therefore as the law of the Sabbath, though enacted by God, was of right, and according to the intention of the great Law-giver himselfe, to give place to the necessary accommodations of men, and ought not to be pleaded in bar hereunto; in like manner, if the law of callings at any time opposeth, or lieth crosse to the necessary conveniences Edition: current; Page: [312] of men, during the time of this opposition, it suffereth a totall eclipse of the binding power of it. It is a common saying among the Jewish Doctors, that perill of life drives away the Sabboth; yea Master Ainsworth citeth this saying out of the Hebrew Canons: Circumcision in the time thereof driveth away the Sabboth; and afterwards, that perill of life driveth away all. So that as there were severall cases, wherein (as our Saviour’s expression is) they who polluted the Sabboth were blamelesse; In like manner, there are very many cases, wherein men may transgresse the ordinary law of Callings, and yet be no transgressors. Therefore unlesse it can be proved, that the Armie had no necessity lying upon them to garble the Parliament as they did; their going beyond their ordinary callings to doe it, will no wayes impaire the credit or legitimatenesse of the action.

2. Nor did they stretch themselves beyond the line of their callings, to act therein as they did. Their calling and commission was, to act in the capacity of Souldiers for the peace, liberties, and safety of the Kingdome. What doth this import, but a calling to prevent, or suppresse by force, all such persons and designes, whose faces were set to disturb, or destroy them? Nor did their Commission (I presume) limit or conclude their judgements to any particular kind of enemies, as if they had only power, or a calling thereby, to oppose or suppresse, either such, who should confesse themselves enemies, or such, who by the interpretation or vote of any one party, or faction of men in the Kingdome, should be reputed and deemed enemies: but all such, without exception, whom they, upon competent grounds, and such, as upon which discreet men in ordinary cases are wont to frame acts of judgment, and to proceed to action accordingly, should judge and conclude to be enemies. Or if it shall be supposed, that by their Commission they were limited to judge only those enemies to the Kingdome, with their abbettors and supporters, who were in Armes with the King, or on the King’s behalfe against the Kingdome, in their Representatives; those Parliament-men, whom they have excluded Edition: current; Page: [313] from sitting in that house, having notoriously discovered themselves to be men of this engagement, friends and abettors of those, who very lately were, and yet in part are, in armes against the peace and safety of the Kingdome, in this consideration fall directly and clearly under their commission; and consequently, by warrant hereof, they have, and had a calling, to proceed against them as they did.

3. If the calling which the Parliament itselfe had to levy Forces against the King and his Party, to suppresse them, and their proceedings, as destructive to the peace, liberties, and safety of the Kingdome, was warrantable and good, then was the calling of the Armie to act as they did in the business under debate, warrantable and good also. But the antecedent is true, therefore the consequent also. The minor proposition, viz. that the calling of the Parliament, to levy Forces against the King and his Party, in order to the ends mentioned, was every wayes warrantable and good, I presume will not be denied by the Parliament-men themselves. Or if they should deny it, they would but deny the Sunne to be up at noone-day, inasmuch as the truth thereof hath beene brought forth into a cleare and perfect light, by many pennes, yea and by their owne (in many of their Declarations) yea, and Mr. Prynne himselfe hath set it up in a great Volume as upon a mountaine, that it cannot be hid; though by the fervency of his late Devotion to the King’s interest and cause, he hath attempted the melting downe of that mountaine.1

The connexion in the major proposition is valid upon this consideration. The Parliament (or at least the Parliament men who did the thing) had no other calling, to oppose the King and his, by force, but only the generall call of the major part of the people, by which they Edition: current; Page: [314] were inabled to act in a Parliamentary capacity, [i. more effectually, and upon more advantagious termes, than singly, or out of such a capacity, they could] for their good. By this call by the major part of the people, they were enabled only in a generall, implicit, and indefinite manner, to raise forces against the King and his complices, for the safetie, and behoofe of the Kingdome. So that the particularity of this action was not warranted simply by the nature, or tenore of their call, but by the regular and due proportion which it had to the accomplishing of the end, for which they were chosen or called, viz. the people’s good. From whence it followes, that whether they had beene in a Parliamentary capacity, or no, yet if they had been in a sufficient capacity of strength, or power for matter of execution, their call to doe it, for substance, had been the same, though not for forme. And suppose there had beene no Parliament sitting, or in being, when the King and his party rose up in armes against the Peace, Liberties, and safety of the Kingdome; doubtlesse if any one man had been able to have secured the Kingdome in all these against them, his action had not been censurable for want of a calling to it; in as much as every member, as well in a body politique, as naturall, hath a sufficient call, yea an ingagement lying by way of duty upon it, to act at any time, and in all cases, according to its best and utmost capacity, or ability, for the preservation and benefit of the whole. Now then, supposing the same proportion to the peace, benefit, and safety of the Kingdome, in what the Army did in purging the Parliament, and in what the Parliament itselfe did, in opposing the King by force (which is a point of easie demonstration, and is ex super abundanti, proved in the large Remonstrance of the Army lately published)2 let us consider, whether the call of the Army, to act for the Kingdome as Edition: current; Page: [315] they did, be not as authentique, cleare, and full, as that of the Parliament to act as they did, in reference to the same end.

First, the authority and power of the people [or rather the present exercise and execution of this power] to act for their owne preservation and well being in every kind, was as well formally, and according to the ceremonie of the Law, as really, and according to the true intentions and desires of the people, vested in the Parliament. So that the Parliament by vertue of this investiture, and during the same, had the same right of power to raise an Armie, and to give unto it what Commission they judged meet, in order to the benefit of the people, or to act any other thing of like tendency, which the people themselves had, to chuse for themselves a Parliament. Therefore whatsoever lieth within the verge of the Armie’s Commission derived from the Parliament, relating to the Kingdome’s good, they have as full and formall a call, or warrant, to act, and put in execution, as the Parliament itselfe had, either to raise an Army, or to doe any other act whatsoever. If then first, the tenor of their Commission stood towards any such point as this, (which I presume is no way questionable) viz. to suppresse by strong hand, all such persons, whom upon rationall grounds they should judge enemies to the peace and welfare of the Kingdome; and secondly, that those Parliament Members, whom now they have cut off from that body, were upon such grounds judged such by them, (of the truth whereof they have given a super-sufficient account in their said late Remonstrance); it is as cleare as the Sun that their calling to act as they did in cutting off these Members, is every whit as legitimate and formall, as that of the Parliament itselfe is to act anything whatsoever, as a Parliament.

Nor is it of any value to pretend here, and say, that it is not to be beleeved, that a Parliament should give any Commission unto men, to act against themselves, or in a destructive way to their priviledges, or honours. For to this I answer.

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First, that Law-givers, whilst they are sober, and in their right mindes, may very probably make such Lawes, for the ordering and restraint of persons distracted and madd, which in case they afterwards become distracted, may, and ought to bee put in execution, upon themselves. And in case any of those Parliament men, who joined in granting that Commission unto the Army, by which they were inabled to fight, slay and destroy all those that were in armes against the Parliament, should afterwards have turned Cavaliers themselves, and been found in armes against the Parliament (as some of them, if my memory faileth me not, were) they might very lawfully have beene encountered and destroyed by the Army, by vertue of that Commission which was granted by themselves.

Secondly, what only one Emperour explicitely spake to an inferiour Officer created by him, when hee delivered him the Sword; If I doe justly, use this for me; if unjustly, use it against me; the same implicitely, and according to the exigency of the trust committed by Office, doth every superiour Magistrate say unto him, whom he chuseth and admitteth into a place of subordinate office, or power under him. For the punishment of evill doers, and so the procurement of the publique good, doth not lie by way of Office, or duty, upon the chiefe Magistrate only, but upon all subordinate Magistrates also, and Officers whatsoever. This is evident from this passage in Peter: Submit yourselves to every ordinance of man for the Lord’s sake, whether it be to the King, as supreame; Or unto Governours. [i. inferiour Magistrates or Officers] as to them that are sent by him for the punishment of evill doers, and for the praise of them that do well. So then, the punishment of evill doers, and this simply, without all partiality, or distinction of persons, (which are things sinfull in all Magistrates whatsoever, as well subordinate, as supreame) and likewise the protection and incouragement of those that doe well, lying by way of Office and duty, upon all those, who by the King, or supreme Officer, are invested with any power of authority, though subordinate; evident it is, that Edition: current; Page: [317] whensoever a King, or other Supreame authoritie, creates an inferiour, they invest it with a legitimacy of magistraticall power to punish themselves also, in case they prove evill doers; yea and to act any other thing requisite for the praise or incouragement of the good. Nor is there any pretence here for such an exception, as the Apostle Paul findes, in the grand Commission of Christ. But when hee saith all things are put under him, it is manifest that he is excepted, which did put all things under him. God the Father being uncapable of sin, is not capable of losing that soveraigne dignity, which is native and essentiall to him; and consequently, not capable of comming into subjection under any creature, as Christ Mediator, in respect of his human nature, is. But Kings and Magistrates of the highest, being very capable even of such sins, which are destructive to the peace and welfare of the people under them, and repugnant to the incouragement of those that doe well, and consequently, which appertaine to the cognizance of every Magistrate, to whom the care of such things is intrusted, are very capable also of forfeiting that dignity, which is naturall and essentiall to them, as Kings, or Supreame, and of rendering themselves obnoxious to those authorities and powers, which out of such cases, are under them, but upon such miscariages, are above them; as Reuben forfeited that excellency of dignity, which appertained to him, as the first borne of his Father, by going up unto his Father’s bed. Upon this very ground Calvin himselfe, Zwinglius, and other reformed Divines, and the Scottish Ministers themselves (more generally) and Master Prynne more voluminously than they all, determine and adjudge it, not only lawfull, but matter of duty and charge lying upon the subordinate Magistrates, to curb and bridle the tyrannous extravagancies and incursions of Kings and Princes against their people. But

Secondly,3 suppose the Armie had not a call to act as they did, in Edition: current; Page: [318] the case under debate, every waye’s as full of formality, as the call of the Parliament to act as they did, in opposition to the King, yet might their call be (and indeed was) as materiall, as weighty, as considerable, and as justifiable in the sight of God, and of all unprejudiced intelligent men, as the other. The call of the Parliament we spake of, was from the persons of the people, expressed by formality of words, or other ordinary gestures, testifying such a call from them: and this call they (or most of them) received from the people, whilst as yet they (the people) were in no visible, at least in no imminent or present danger of being swallowed up in slavery and tyranny. But the call of the Armie, to deny the opportunity of the house, to those Members of Parliament, whom they sequestered, was from the strong and importunate cries of the people’s Liberties, yea and of many of their lives, being now laid upon the Altar, ready to be offered up in sacrifice upon the service of the lust and revenge of a most inhumane generation of men, who (it seemes) thirsted after them with that furiousnesse of thirst, that they made no spare of their owne deare lives themselves to make the purchace, and were now under a great additionall enragement, as having been for a long time chafed up and downe in their owne blood, and by a strong hand kept falling from their desires. Now the calls of the miseries and extremities of men for reliefe, are more authorizing, more urging, pressing, and binding upon the consciences of men, who have wherewithall to afford reliefe unto them, than the formall requests or elections of men to places of trust or interest, when the electors have no such present or pressing necessity upon them, for the interposall of the elected on their behalfe. The necessities of men call more effectually, than men themselves; yea, the truth is, that the calls of men, calling others there to helpe or assist them, being in a tolerable condition of subsisting, without receiving the helpe they call for, are but dallyings, or sportings, and shadowes of calls, in comparison of the loud, vehement, Edition: current; Page: [319] and importunate cries of the exigencies and extremities of men, though the men themselves should hold their peace.

Fourthly, (and lastly to the first objection) the common saying, that in case of extreame necessity all things are common, extends unto callings also. In cases of necessity, all callings are common, in order to the supply of the present necessity. David and his men being hungry, were all Priests, in reference to the satisfaction of their hunger, and did, and that lawfully, eate that bread, which (as our Saviour himselfe affirmeth) was lawfull only for the Priests to eate. Polanus a reformed Divine of good note, granteth, that when Bishops and Ecclesiastiques are defective either in will, or skill, for the reformation of Religion, and the Church; laicks, or private men “may lawfully supply their defect herein,” and act the part of Bishops or Ecclesiastical persons, in such reformations.

When the Pilot, or Master of a Ship at Sea, be either so farre overcome and distempered with drinke, or otherwise disabled, as through a freneticall passion, or sicknesse in any kinde, so that he is uncapable of acting the exigencies of his place; for the preservation of the Ship, being now in present danger, either of running upon a quick sand, or splitting against a rock, &c. any one, or more of the inferiour Mariners, having skill, may, in order to the saving of the Ship, and of the lives of all that are in it, very lawfully assume, and act according to the interest of a Pilot, or Master, and give orders and directions to those with them in the Ship accordingly, who stand bound at the perill of their lives in this case to obey them. By such a comparison as this, Master Prynne himselfe demonstrates how regular and lawfull it is for Parliaments, yea and for particular men, to turne Kings, I meane, to assume that Interest and power, which the Law appropriates to the Office, and vesteth only in the person of the King, when the King steereth a course in manifest opposition to the peace and safety of the Kingdome.

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The passage in Master Prynne, though it be somewhat large, yet being thorough and home to the point in hand, I shall present Verbatim. Go too now (saith this Anti Protyrannicall Spirit) in this our Politique Ship, the Master gluts himselfe with Wine; most of his Assistants either asleepe, or drunke with mutuall cups, sportingly behold an imminent rock. The Ship in the meane time, either holds not that course, which is expedient for the owner, or seemes speedily to be wracked. What thinkest thou is here to be done under the Master, by one who is vigilant and solicitous? Shall he pull those by the eares, who are asleepe, or only jogge them by the sides? But in the meane time, lest he should seeme to doe ought without their command, shall hee not afford his helpe and assistance to the indangered Ship? Truly what madnes, or rather impietie, will this be? Seeing then (as Plato saith) TYRANNY IS A CERTAIN FRENZY and drunkenness, the Prince may utterly subvert the Republique, the most of the Nobles may collude, connive, or at least are fast asleepe; the people, who are Lords of the Republique, by the fraude and negligence of their Ministers, which is their fault, are reduced into greatest streights. In the meane time, there is one of the Nobles, which considers the incroaching tyranny, and detests it from his soule: what think’st thou is now to bee done against him by this man? Shall he only admonish his Colleagues of their duty, who themselves doe as much hurt as they may? But besides, as it is perillous to admonish, and in that state of things it may be deemed a capitall crime. Shall hee doe like those, who contemning other helpes, casting away their armes, shall cite Lawes, and make an Oration concerning Justice, among theeves, in the midst of a wood? But this truly is that which is commonly said, to be mad with reason. What then? Shall he grow deafe at the people’s groans? Shall hee be silent at the entrance of theeves? Or shall he finally grow lazie, and put his hands into his bosome? But if the Lawes appoint the punishment of a Traitor against one wearing buskins on his legges, who counterfeits sicknesse for feare of the enemies, what punishment at least shall we decree against him, who either through malice, or slothfulnesse, shall betray those whom he hath Edition: current; Page: [321] undertaken to protect? But rather he shall command those things that are needfull to such as are wary, by a Mariner’s shout: he shall take care lest the Common-wealth receive any detriment, and shall preserve the Kingdome even against the King’s will and resistance, by WHICH HE HIMSELF BECOMES A KING and shall cure the King himselfe as a frantique man, by BINDING HIS HANDS AND FEET, if he may not otherwise doe it. Thus farre Mr. Prynne; and full far enough to justifie whatsoever is said in these papers for the justification of the Army in their binding the hands and feet of some frantique Parliament men (as himself in a Platonick strain phraseth those, who either through malice, or slothfulnesse, shall betray those, whom they have undertaken to protect).

It were easie to multiply instances of like import. But by what hath been argued, the nullitie of that argument against the proceedings of the Army, drawne from the defect of a calling to act as they did, fully appeareth.

A second Objection is this: They resisted Authority, or the powers lawfully set over them; and therein, the ordinance of God: therefore their fact is to be condemned and cannot be justified. I answer,

First, To resist Authority, imports either a detracting or deniall of obedience to the just commands of Authority, or else the ingaging of a man’s selfe to dissolve, and take away Authority. Now certaine it is that the Army, in that act of theirs now in question, neither did the one, or the other. First, the authority of Parliament, had made no such Act, passed no such Vote, that none of their Members, though voting, or acting never so palpably, or with never so high an hand against the Interest, peace, and liberties of the Kingdome, should be debarred sitting in their house. In which respect, the Army debarring those Members, which had thus voted and acted, from sitting in that House, did not resist Authority in the former sence. Or in case it should be supposed, that the authority of Parliament, had made such an act, or passed such a Vote, as that mentioned, unlesse the equity Edition: current; Page: [322] and justnesse of it could be sufficiently cleared, the crime of resisting authority could not upon any sufficient ground be imputed to those, who should decline obedience to it.

Secondly, neither did the Army in the aforesaid act, resist authority in the latter sence; because what they did, no way imported any dislike of Parliament authority, nor had any tendency towards the abolition, or taking of it away; but only implied a disapprovement of the factious carriage of things in this present Parliament, as evidently bent against the safety, liberties, and well-being of the Nation; and tended withall towards a prevention of the like, or worse, for the future. But as for their approbation of, and resolutions to maintaine Parliaments, and Parliamentary authority (stated and formed in a regular and due proportion to the behoofe and benefit of the Kingdome) they stand abundantly declared to all the World in their late Remonstrance.4

If it be here yet further said; yea but though it should bee granted, that they did not resist Authority, in either of the two considerations specified, yet they did that, which was worse, or every whit as bad, as either of them. For they offered violence to persons in authority, and would not suffer them to act in that authoritative capacity, which was lawfully vested in them. To this also I answer;

First, it is lawfull for any man, even by violence, to wrest a Sword out of the hand of a mad man, though it be never so legally his, from whom it is wrested. The reason is, because in case a man that is mad, should be let alone with a Sword in his hand, either untill he be willing of himselfe to part with it, or untill it can be recovered from him by a due processe and course in Law, there is a probability in reason, and according to the frequent experience of the workings of such a distemper, that he will doe much mischiefe with it in the meane time: and the lives and limbs of men, are to be preferred before the exorbitant Edition: current; Page: [323] wills, or humours of men under distemper. This is the very case in hand. The Members of Parliament dis-housed by the Army, were strangely struck with a politicall frenzy (as Plato tearmeth it); they acted as men bereaved of their senses, that had quite forgotten the businesse committed unto them, and that knew, or understood nothing of matters relating to the peace or well being of the Kingdome, or of those who had intrusted them with their power: their counsels and votes of late still smiled upon their owne enemies, and the grand and most inveterate enemies of the Kingdome, but frowned and looked gastly upon their friends, and those that had constantly guarded them with their lives and estates.

  • Hic furor haud dubius; haec est manifesta phrenesis. i.
  • This madnesse is without all doubt,
  • And phrensie manifest throughout.

Now then Parliamentary power being in the hands of these men, but as a sword or speare in the hand of a man distraught in his wits and senses, wherewith hee is like to doe little or no good but in continuall danger of doing much harme, it might very lawfully, and with the full consent of all principles of reason, equity, and conscience, be seized upon, and taken from them by a strong hand, for the prevention of such mischiefes and miseries, which, remaining in their hand, it daily and hourly threatened to bring upon the whole Nation and Kingdome.

Secondly, The King had as legall and formall an investiture into the power of the Militia, of sitting in Parliament, &c. as these men had into their Parliamentary places and trusts: yet did not the Parliament unjustly, or contrary to rules of equity, upon a plenary discovery of a bent in his will and counsels to suppresse the liberties of the Nation, to deprive him, and that by force, of the injoyment and exercise of those interests and priviledges, notwithstanding the legality of their investiture in him. Therefore upon a like discovery of the same bent in the wills and counsels of these Parliament men, the Edition: current; Page: [324] lawfulnesse of their elections into their places of trust, cannot reflect any unlawfulnesse upon that act, by which they were removed from, or debarred of them.

Thirdly, (and lastly) there is no Client that hath entertained a Lawyer, or Advocate to plead his cause, but upon discovery, yea or jealousie, of prevarication, and false-heartednesse to him in his cause, may lawfully discharge him, his entertainement notwithstanding. There is the same liberty in a Pupill, or person in his minority, to disentrust his Guardian, how lawfully soever chosen, upon suspicion of male-administration, or unfaithfulnesse. And why should the like liberty be denied unto a people or Nation, for the removing of such persons, whom they have chosen for Guardians to their Estates and Liberties, from these places of trust, when they evidently discerne a direct tendency in their proceedings, to betray them, both in the one and the other, unto their enemies?

But two things (it is like) will bee here objected. First, that the Parliament were Judges lawfully constituted, of the King’s delinquency against the Kingdome; but the Army were no Judges of such a constitution, of the miscarriages of the Parliament. Therefore there is not the same consideration, in point of lawfulnesse, in the proceedings of the Army against the Parliament, which is of the Parliament’s proceeding against the King. There is the same difference likewise betweene the act of a Client and Pupill, wherein the one dischargeth his Advocate, and the other his Guardian; and the act of the Army, in dethroning the Parliament men. To this I answer,

First, That whether we place the lawfulnesse of a Parliamentary Judicature in respect of the King’s Delinquency, either in their Election by the people, or in the conformity of this their Election unto the Lawes of the Land, certaine it is that the Army were Judges of every whit as competent, and lawfull a constitution of their delinquencies in the same kinde. For,

First, If we measure the lawfulnesse of Parliamentary Judicature Edition: current; Page: [325] by the call of the people thereunto, the Army (as was formerly proved) hath every whit as lawfull a constitution to judge who are enemies to the peace and safety of the Kingdome, as the Parliament itselfe hath. Nor doth it at all argue any illegality in their judgements about the Parliament men, that they had not the explicit and expresse consent of the people therein, or that they had no call by them so to judge; no more than it proveth an illegallity in many Votes and Ordinances of Parliament, that they were both made and published, not only without the particular and expresse consent, but even contrary to the minds and desires of the people, or at least of the major part of them. Besides it is a ridiculous thing to pretend a want of a call from the people, against the lawfulnesse of such an act, which is of that soveraign necessity for their benefit and good, which the actings of the Army were; especially at such a time, when there is no possibility of obtaining, or receiving a formall call from the people, without running an eminent hazard of losing the opportunity for doing that excellent service unto them, which the providence of God in a peculiar juncture of circumstances, exhibits for the present unto us. Men’s consents unto all acts manifestly tending to their reliefe, are sufficiently expressed in their wants and necessities.

If it be yet said, “But the people doe not judge the proceedings of the Army against the Parliament men, as tending to their reliefe, or welfare in any kinde, but as contrary unto both, nor doe they give so much as their subsequent consents thereunto”; I answer (besides what was lately said to the nullifying of this pretence) that Physitians called to the care and cure of persons under distempers, need not much stand upon the consents of such patients, either subsequent, or antecedent, about what they administer unto them. If the people be uncapable in themselves of the things of their peace, it is an act of so much the more goodnesse and mercy in those, who being fully capable of them, will ingage themselves accordingly to make provision for them. It is a deed of Charity and Christianity, to save the life of a Edition: current; Page: [326] lunatique or distracted person even against his will. Besides it is a ruled case amongst wise men, that if a people be depraved and corrupt, so as to conferre places of power and trust upon wicked and undeserving men, they forfeit their power in this behalfe unto those that are good, though but a few. So that nothing pretended from a non-concurrence of the people with the Army, will hold water. Or,

Secondly, If wee estimate the lawfulnesse of that Judicature, by the conformity of their elections thereunto, to the Lawes of the Land, the investiture of the Army into that Judicature, which they have exercised in the case in question, is conforme unto a Law of farre greater authority, than any one, yea than all the Lawes of the Land put together; I meane, the Law of nature, necessity, and of love to their Country and Nation: which being the Law of God himselfe written in the fleshly tables of men’s hearts, hath an authoritative jurisdiction over all human Lawes and constitutions whatsoever; a prerogative right of power to overrule them, and to suspend their obliging influences, in all cases appropriate to itselfe. Yea many of the Lawes of God themselves, thinke it no disparagement unto them, to give place to their elder Sister, the Law of necessity, and to surrender their authority into her hand, when shee speaketh. So that whatsoever is necessary, is somewhat more than lawfull; more (I meane) in point of warrantablenesse. If then the Army stood bound by the Law of nature and necessity, to judge the Parliament men as they did, viz. as men worthy to be secluded from their fellowes in Parliamentary interest, this judiciary power was vested in them by a Law of greater authority, than the Lawes of the Land; and consequently the legality, or lawfulnesse of it was greater, than of that in the Parliament, which derives its legality only from a conformity to the established Lawes of the Land. Yea the truth is, that that Law of necessity, by which the Army were constituted Judges of those Parliamentary Delinquents we speake of, cannot (in propriety of speech) be denied to be one of the lawes of the Land, being the law of nature, Edition: current; Page: [327] and consequently the law of all Lands, and Nations whatsoever, established in this, and in all the rest, by a better, and more indubitable legislative Authority, than resides in any Parliament, or community of men whatsoever.

If it be here further objected; yea but what necessity was there lying upon the Army, to assume that judicative power unto themselves, which they exercised upon the Members of Parliament? It is an easie matter to pretend a necessity (almost) for every unjust, and unrighteous thing; but not so easie to judge what such a necessity is, which is authorized by God with a suspensive power over human lawes. To this I answer,

First, That they cannot (at least in the ordinary signification of the word) be said to assume a power of judicature unto themselves, who only judge either of persons, or of things, in respect of themselves, and with relation to what concernes themselves by way of duty, either to doe, or to forbeare. The exercise of such a judging, or judicative power, as this, is imposed by God by way of duty upon all men: and woe unto them, who doe not judge, both persons and things, in such a consideration, as this. The neglect, or non-exercise of that judging faculty or power, which is planted in the soules and consciences of men by God, upon such termes, and with reference to such ends as these, draweth along with it that sin, which the Wise man calleth, the despising of a man’s wayes, & threateneth with death. But he that despiseth his wayes shall die. Now certain it is, that the Army did exercise no other judiciary power than this, about, or upon those Parliament men, nor in any other respect, nor with any other consideration, than to their own duty concerning them; which every other person in the Kingdom, either did, or ought to have done, as well as they. Every man is bound to consider, judge, and determine, what is meet, and necessary for him to doe, either to, with, for, or against, all other men; or at least all such, to whom he stands in any relation, either spirituall, naturall, or civill. That judgment then Edition: current; Page: [328] which the Army passed in their own brests and consciences upon those Parliament-men, as viz. that they were such, whom they stood bound in duty, having an opportunity in their hand to doe it, to cut off as unsound members from their body, was nothing else but the issue, fruit, and effect of that consideration of them and of their wayes, which they stood bound to levy, raise, and engage themselves in, about the one and the other. If the judgement which they passed in this kinde was erroneous, it was not erroneous through an usurpation of an unlawfull power to judge, but either through a defect and weaknesse of those discerning, or judging abilities, which they stood bound (however) to use; or else through an oscitancy, carelesnesse, or sloath, in not improving or acting these abilities, as they might, and ought, to the discerning of the truth. Certainly they who judge these Parliament-men worthy Patriots or Members of their House, or meet to have beene let alone without disturbance in their way, doe assume the same power of judicature concerning them, yea and concerning the greatest and weightiest matters of State, which the Army did, when they judged them meet to be sequestered. Yea they who judge, and condemne the Armie as evill-doers, for what they acted about these men; and not only so, but smite them also with the sword of the tongue, reviling them without any just warrant or ground, doe they not every whit as much usurp, and assume to themselves a power of judging, without any authority at all, as the Armie did in that very act of judgement, at which they make themselves so highly agrieved? Insomuch that to all such, that of the Apostle may be justly applied. Therefore thou art inexcusable O man, whosoever thou art that judgest. For wherein thou judgest another, thou condemnest thyselfe: for thou that judgest, dost the same things. Nay, If we speak of an authoritative power to judge, they who presume to justifie and absolve the Parliamentmen from the crime charged upon them, and to condemn the Army for charging them, are farre deeper in the usurpation of such a power, than the Armie. For the Army (as hath been said) had a legall commission Edition: current; Page: [329] from the Parliament itselfe, to oppose, slay, and destroy the enemies of the Kingdome, and therein a kind of authority derived unto them, to judge of these enemies, when they should meete with them (for a Commission or warrant to apprehend, or destroy such and such persons, without a liberty, or power, either granted, or supposed, to judge them such, when they are found, were a ridiculous nullity) whereas they, who being private men, shall undertake not only to censure, judge, and sentence the Armie as Malefactors in what they have done, but to proceed likewise to the execution of this their sentence by inflicting the penalty of stigmaticall and opprobrious terms upon them; by casting them out of the affections of their friends, by firing the spirits, and strengthening the hands of their enemies against them, doe all this without the least colour, shadow, or pretence of any lawfull authority whatsoever. But

2. That the judgement or sentence which the Armie passed upon those men, as meet to be dispossessed of their Parliamentary interest, was not erroneous in either of the considerations mentioned, or in any other, but every wayes just, and according to the truth, stands cleer upon this ground, viz. that they were become Renegadoes from their Trust, and acted by their counsels, debates, votes, and interests, in a diametrall opposition to the peace and safety of the Kingdome, and to publique good. Yea the tenour of their Parliamentary actings before their removall from the House, in the known dialect of politicall prophesie, presaged nothing but ruine and destruction to the liberties of the free-borne Subjects of the Kingdom in generall, and to the lives and estates of many thousands in the Kingdome, whom they stood bound in conscience, in a speciall manner to protect. For what could that grand encouragement, which they administered by their Votes to a potent party of men in the Kingdome who had so lately, and with so high an hand, acted hostility against the peace and liberties of the people, and against the lives of those who stood up to protect them, not having given the least overture of any relenting in Edition: current; Page: [330] their olde principles, but were now through that extreamity of paine which they lie under, having beene so often, and so deeply bitten, and stung by the fidelity and valour of the Army, more enraged in their spirits, than ever. What could (I say) such an encouragement, given by such hands, unto such men, but portend, either a re-imbroiling of this already miserably-wasted Nation, in Wars and blood, or else the necessity of a patient and quiet subjection of the Nation to the iron yoke of perpetuall tyranny and bondage, together with the certaine ruine of the lives and estates of those, who had shewed most faithfulnesse and courage in the defence of the Parliament and the Kingdome’s liberties, in opposing the King and his party, if the Army had not preventingly interposed, as they did? The by-past actions of men, especially such, which they have for any considerable space of time inured themselves unto, are propheticall of what their future actions are like to be, if opportunity paralleleth. The civill Law saith, that he that hath injured one, hath threatened many: and by the rule of proportion, he that hath injured many, hath threatened all. It is the saying of that late great Scholar and Statesman, Sir Francis Bacon; that men’s thoughts are much according to their inclination: their discourse and speeches according to their learning, and infused opinions: but their deeds are after as they have beene accustomed. Insomuch as afterwards he saith, as a man would wonder to heare men professe, protest, engage, give great words, and then doe just as they have done before. Yea the Scripture itselfe giveth testimony to this maxime, that what men have been by custome, they are like to be by continuance. Can the Ethiopian (saith God himselfe to the Jews) change his skinne, or the Leopard his spots? Then may ye also doe good that are accustomed [or, taught] to doe evill. And elsewhere (speaking of the same people) they hold fast deceit, they refuse to returne—no man repented him of his wickednesse, saying, what have I done? Every one turned to his course [or race] as the horse rusheth into the battle, meaning, that as the warlike horse, having been for a while curbed and held in by his Rider with a sharp bit, & Edition: current; Page: [331] strong hand, rusheth with so much the more violence and fury into the battle, when he feeles his liberty. In like manner these men, (and it is the case generally of all men) when they had been at any time restrained for a while, whether by my word, or my judgments upon them, from these vile practices; still upon the first opportunity that they found themselves loose, they re-practiced their former wickednesse with so much the more eagernesse and keenenesse of spirit.

It were easie to bring Authorities in great numbers, both divine and human, and these attended with a like traine of examples, both ancient and modern, for the further confirmation and credit of this axiome, that men generally are much more like to practice on their owne vices, than to fall off to the exercise of other men’s vertues. But by what hath been delivered in already upon this account, most evident it is, that the men deparliamented by the Army, were in their full career to the utter undoing of the Kingdome, when they were dismounted: and consequently, that the judgment of the Army looking upon them, as persons meet to be discharged from that great Trust, wherein they so prevaricated, was according to righteousnesse and truth. Therefore

3. (And lastly as to the objection last propounded) it is no such great matter of difficulty, clearly to discern, and judge of such emerging necessities (at least of many of them) which are authorized by God with a prerogative interest of suspending human laws. Hunger is by the holy Ghost himselfe enrolled amongst those necessities, which are invested by God with a faculty and right of suspending his owne lawes, so farre and in such cases, as they oppose the reliefe of it. Have yee not read, saith our Saviour to the Pharisees, what David did when he was an HUNGRY, and they that were with him, how he entered into the house of God, and did eate the shew-bread, which was not lawfull for him to eate (viz. in ordinary cases) neither for them that were with him, but for the Priests only? meaning, and yet were innocent and unreprovable, notwithstanding the transgression of a divine law (as Edition: current; Page: [332] touching the plain & expresse letter of it). Now if God hath asserted such a priviledge unto the necessity of hunger, whereby to supersede the conscientious obligation of his own law, in order to its present satisfaction, much more hath hee authorized it to the superseding of any constitution or law, meerly human, in reference to such an end; unlesse wee shall thinke, that hee is more jealous for the observation of the lawes of men, than of his owne. So then if it be no great matter of difficulty for a man to judge when he is an hungry, evident it is, that there are some cases of necessity obvious enough, whereunto the lawes of men ought to give place, and to be content to be, as if they were not. For the reason why hunger is invested with such a priviledge from God, as we speak of, is not simply, as, or because, it is hunger, i. such a peculiar and determinate πάθος, which in a way proper to itselfe, threateneth and endangereth the life of man; but in respect of the generall nature of it, and as it simply threateneth and endangereth this life, if it be not timely healed by the application of food, or nourishment. It was the preciousnesse of the lives of men in God’s sight, not any respect he bare to any particular way, or meanes of endangering them, which obtained from him the grant of such a priviledge unto hunger, that in order to its necessary satisfaction, it should overrule his owne law. So that whatsoever else it be, as well as hunger, which so apparently menaceth, or portendeth ruine and destruction to the lives of men, partakes of the same indulgence and grant of priviledge from God, with hunger, and is facultated by him, in order to the prevention of the mischiefe menaced, to transgresse a Law without guilt of sinne. By the cleare warrant of this consideration and deduction, the Jewes extended that grant of priviledge, which God (as we have heard) made, or indulged explicitely unto hunger only, unto all manner of things and cases whatsoever, whereby, and wherein life was exposed to imminent hazard and danger. Their common maximes were (as they were formerly mentioned, Sect. 4) that danger of life drives away the Sabbath: Perill of life drives away all, &c. Edition: current; Page: [333] Now if the perill of the life of one man, or of a small parcell of men (as David, and those that were with him, were no great party) was priviledged from heaven with a sinlesse transgression of a speciall law of God; certainly, the imminent danger of bloody combustions in the middest of a great Nation, wherein the lives of many thousands were like to be sacrificed, besides the hazard of bringing many other most deplorable and sad calamities upon the whole Land, which (as hath beene proved) wrought effectually in the counsels and actings of the disseated Parliament-men, is a broad and unquestionable ground of equity and right, for the Armie to build a prevention or diversion of them upon, though it be with a temporary disobedience to such lawes of men, which were never (doubtlesse) intended by the Law-makers themselves, for the binding, either of men’s consciences, or their hands, in such cases.

Only, lest the truth we assert, should possibly suffer through any man’s mistake, I shall adde one thing by way of caution, or explication about the premises. When wee seeme to approve of that principle of the Jewes, wherein they say, that Peril of life drives away all, and speak many things concerning the priviledges of necessity, we doe not suppose, nor intend to say, that men may lawfully transgresse every law or precept of God whatsoever, for the saving of their lives, being in danger, as for (example) that they may lawfully lie, forswear themselves, deny Christ, or the like, in such cases; for men (doubtless) ought rather to accept of death, than deliverance, upon such tearmes as these. But that which we suppose upon the account specified, is only this; that hunger, or any parallell exigence or necessity, have such an indulgencie of priviledge from God, which extendeth to the suspension of all such Lawes, as well Divine, as human, in order to the safety of men lying under them, which the light of nature, and that sence of equity and of what is reasonable, planted in men by God, may well judge to have beene intended by the respective Lawmakers, not for Lawes of an absolute and universall obligement, Edition: current; Page: [334] without all manner of exception, but only for the regulating of men in ordinary cases, and such as are of more frequent and usuall occurrence. Now certaine it is, that as there are some Divine Lawes which fall under this consideration (as we have seene) so there are scarce any (if any at all) of human constitution, but are subject unto it; I meane, which may not, according to the regular intentions of the Lawmakers themselves, lose their binding force and authority for a time, as cases may be; it being a true Rule, subscribed as well by Lawyers as Divines, that Every Law binds only according to the regular and due intention of the Law-maker.

The reason why no human Law, can reasonably be judged to bee of universall obligation (no, not according to the intention of the Lawmakers themselves) is, first, because the adequate end and scope of Law-makers in their Lawes, is presumed to be, the publique and common benefit and good of the community of men, who are to obey them. Now, as Aquinas the Schooleman well observeth, it often falls out, that that, which ordinarily, and in most cases is much conducing to common good, in some particular case would bee most repugnant and destructive to it, whereof hee gives an instance; unto which many others might readily be added. Therefore in such cases, wherein the observation of a Law, cannot but be of dangerous consequence, and prejudiciall to the publique, it is to be presumed, that it was no part of the intention of the Law-givers that it should be observed, or bind any man.

Secondly, it being out of the Sphere of all earthly Law-makers, to foresee, or comprehend all particular cases, that may possibly happen, they generally content themselves with framing such Lawes, the keeping whereof ordinarily, and in cases of a more frequent occurrence, is conducing to publique benefit and safety, not intending by any of these Lawes to obstruct or prejudice the publique, in any anomalous or unthought of case, but to leave persons of all Interests Edition: current; Page: [335] and qualities at full liberty, to provide for the publique in such cases, though with a practicall contradiction to any, or all of their Lawes.

Thirdly (and lastly, for this) If it could, or should be supposed, that human Lawgivers are able to comprehend and make provision for all possible emergencies and cases, yet were it not expedient (saith my Author) for the Common-wealth, that they should multiply Lawes to such a number, as the particular stating and regulating of all such cases would necessarily require. Confusion in Lawes ought to bee avoided, which yet could not be avoided, if particular and expresse provision should be made in them, for the regulation of all persons, of what different capacities, or conditions soever, under all possible occurrences, in a due proportion to the common interest and benefit of men.

These things considered, evident it is, that there was never yet any Lawgiver amongst men, who, understanding himselfe, ever intended to impose any Law of a politique constitution upon men, without a reserve for those, on whom it was imposed, to provide for themselves, or for the publique good in cases of necessity, besides, yea and against, the literall import of such a Law. Therefore perill of life, which is the most confessed case of necessity of all others, though it cannot claime exemption from under some of the Lawes of God (such as were lately intimated) yet may it challenge this priviledge in respect of the Lawes of men. The reason of the difference hath been already in part signified, but more compleatly is this: viz. because those Lawes of God, which we now speake of, prohibiting such actions, which are intrinsically, and in their proper natures, as being contrary to the essentiall purity and holinesse of God, and not only because they are prohibited, matter of defilement unto men, must needs bee of universall obligation, in as much as no necessity whatsoever can be greater than, nor indeed equall to, this, that a man refraines all such actions, which are morally, essentially, and intrinsecally Edition: current; Page: [336] corrupting and defiling: whereas the civill or politique Lawes of men restraine only such actions, the forbearance whereof, as in ordinary cases, it is commodious for the publique Interest, so in many others, possibly incident, would be detrimentous and destructive to it. In which respect all the necessity of obeying such Lawes as these, may for the time, not only be ballanced, but even swallowed up and quite abolished by a greater necessity of disobeying them. And concerning such Lawes of God himselfe, which we call typicall, or ceremoniall, because they restraine only such actions, which are not intrinsecally, or essentially sinfull, or defiling, as not being in themselves repugnant to the holinesse of God, but had the consideration of sinne put upon them by a Law, in reference to a particular end; hence it commeth to passe, that God was graciously pleased, and judged it meet, to subject such Lawes as these to the pressing necessities of the outward man; or rather (indeed) to those other Lawes of his, by which he commanded reliefe for them; as it is written; I will have mercy, and not sacrifice. This by way of caution. But

Secondly, Another thing, that (its like) will be objected, upon, and against what hath been answered to the second maine objection, is this: That the Parliament men disturbed in their way by the Army, at least many of them, were Religious and conscientious men; voted, and acted as they did, conscientiously, really judging the course they steered, to be the safest and most direct for bringing the great Ship of the Common-wealth into the harbour of rest and peace. And is it not contrary, as well to principles of reason, as Religion, that such men upon so faire an account as this, should be so fouly handled? To this I answer;

First (not to question that, which I make no question but will be sufficiently proved in due time, I meane, the Religiousnesse of the Gentlemen spoken of) Religious men, are as well men, as religious: and consequently, are not yet baptized into the spirit of that divine prerogative, which should make them (in the Apostle James his Edition: current; Page: [337] phrase) ἀπειράστος κακῶν, persons untemptable by things that are evill. They that are capable of receiving gifts, or of any inordinacy in their desires after earthly accomodations, how wise, or just soever they be otherwise, are subject both to have their eyes blinded, and their words perverted. A guift, saith God himselfe, doth blinde the eyes of the wise [i. of those that are religiously wise, as well as others; the Scripture not often tearming any men wise, but upon that account] and pervert the words of the righteous. A guift, or anything equivalent to a guift, and that not only after it is received, but much more whilst it is yet desired, and expected, is apt to have both these sad operations even upon the best of men. For who can be better than those whom wisedome and righteousnesse joine hand in hand to make excellent?

Secondly, When men are religious only to a mediocrity, and withall servile in their judgments to some principles, which are commonly and with great confidence and importunity obtruded upon the consciences of professors, for sacred Truths, and yet are extreamly discouraging, and full of enmity to a thorough, stable, and quiet dependence upon God, by being religious upon such tearmes as these, they become twofold more the children of feare, than otherwise they were like to be, and consequently, so much the more capable and receptive of sad and dismall impressions from the World upon all occasions. And it is not more commonly than truely said; that Feare is a bad Counsellor.

Thirdly, When religious men sinne against the common Interest and liberties of a free borne Nation, and make one purse with the knowne and thrice declared enemies of their Land and people, whether they doe it, with, or against, their judgments and consciences, the Law of nature and necessity, cannot (for the present) stand to make, either a scrupulous inquiry after such a difference, or a regular assignement of favour to the qualifying circumstances of demerit; but calls, yea and cries out immediatly, and commands all Edition: current; Page: [338] men without exception, that have a prize in their hand, to give it for the redemption of their Nation out of the hand of Oppression and Tyranny. And when this Law hath been obeyed to the securing of the Nation, she presently resigneth, and this freely and willingly, all her authority and command, into the hand of positive and standing Lawes, calculated for the ordinary posture and state of things, untill there be another cry of like danger in her eares. When these standing Lawes come to resume their authority and power; there will be an opportunity to inquire, if it shall be thought convenient, who sinned, with, and who against, their consciences: and their assesments, which were we uniformly rated by the Law of necessity, may be reduced to tearmes of more equity by those other lawes. But

Fourthly, According to the Notion of that maxime in naturall Philosophy, that The corruption of the best, is worst, so are the miscarriages and errours of the best men, of worst consequence (in many cases). The digressions of men religious, are many times worse, than the thorough discourses of other men. When conscience and concupiscence meet (as oft they doe in religious men) the conjunction is very fiery. It was the saying of Gregory long since, When men conceive of sinne under the notion of a duty, there it is committed with an high hand and without feare. Nor ever was (nor is ever like to bee) the persecution of the Saints more grievous, than when those that shall persecute them, and put them to death, shall thinke that [therein] they doe God service. So that whereas the objection in hand pleads, on the behalfe of those Parliament men, who were religious, that they followed the light and dictate of their judgements and consciences, in complying with the King and his complices; the truth is, that though it may reasonably be thought so much the lesse sinful in them, if they did it upon such tearms; yet was it a ground so much the more justifiable for the Army to proceed upon to the dis-interessing of them, as they did. For when religious men breake out of the way of righteousnesse and truth, with the renitency and obmurmuration of their judgements Edition: current; Page: [339] and consciences, it is a signe that their judgements and consciences are yet at liberty, and in a condition to reduce them. But when these are confederate with their lust, there is little hope of their repentance. But

Fifthly (and lastly, for this) whereas the objection intimates some hard measure offered unto them, being men of conscience, and acting according to their judgements, the truth is, that I know not how the Army could walke towards them with a softer foot, to secure the liberties of the Kingdome, together with their owne lives and estates, against the menaces of their judgements and consciences, than they did.

A third grand Objection, wherewith some encounter that action of the Army, hitherto justified, is this: they therein (say these men) made themselves Covenant-breakers, and sinned against the Solemne Vow and Oath which they, or at least some of them, sware unto God with hands lifted up to Heaven, (if not with hearts also). In this Covenant they promised and sware, that they would endeavour with their estates and lives mutually to preserve the rights and priviledges of Parliaments, whereas by that violent dismembering of the Parliament, they brake and trampled upon them. To this we answer (more briefly).

First, That most certaine it is, that it is no right or priviledge of Parliament to Vote or Act in opposition to the benefit and good of the Kingdome, and those who have intrusted them. It is unpossible that anything that is sinfull, should be the right or priviledge of any person, or society of men under Heaven. Therefore if the Army did nothing more, but only restraine from acting in such a way, they did not herein violate a Right or priviledge of Parliament.

If it be replied, that though it be no right or priviledge of Parliament to Vote or Act contrary to their trust; yet it is a right and priviledge belonging to this house, that, in case any of the Members shall at any time so act, or vote, they should not bee questioned, or suffer Edition: current; Page: [340] for so doing; at least not by any other power, but by that of the House itselfe only; To this also I answer.

1. By concession, that this is indeed a right and priviledge of Parliament, taking the word Parliament in a due and proper signification; viz. for a Parliament consisting of a competent number of men not dead to their trust, who are in a capacity of faithfulnesse and integrity to discharge the office and duty of a Parliament, in endeavouring at least to relieve the pressures and grievances of the people, to protect their liberties, &c. It is the manner of the holy Ghost himselfe in the Scripture, frequently to deny the common Name of things, to such particulars in every kinde, which are defective in those properties for use and service, which should be found in them, and which are found in other particulars of the same kind. Thus Paul expressely, Hee is not a Jew which is one outwardly, neither is that circumcision which is outward in the flesh: But hee is a Jew which is one inwardly; and circumcision is that of the heart in the Spirit, not in the letter, &c. So elsewhere: when yee come together into one place, this is not to eate the Lord’s Supper. This is not, &c. meaning, that as they went to worke, that which they did, deserved not the Name, of an eating of the Lord’s Supper. Therefore

2. By way of exception, I answer further, that if by Parliament, be meant any number of men whatsoever, chosen by the people into Parliamentary trusts, and sitting in that House, where Parliaments (truly and properly so called) use to assemble about the great affaires of the Kingdome, whether these men, or the major part of them, love the interest of the Kingdome, and be cordially affected to the liberties of the people, or no, I know no such right or priviledge of Parliament, as that specified. A Parliament that is unusefull and unserviceable for Parliamentary ends, is no more a Parliament, than a dead man, is a man, or a Virgin defloured, a Virgin. And as a dead man hath no right or priviledge of a man (truly so called) belonging to him, unlesse it be to be so ordered & dealt with, that he may not be an annoyance Edition: current; Page: [341] or offence unto others: so neither doe I know any right or priviledge of a Parliament indeed appertaining to a Parliament politically dead, and which is not animated with a spirit of faithfulnesse to the publique, unlesse it be to be so entreated and handled, that it may not destroy the publique Interest, or endammage their Trustees (the people) in their liberties. It is a rule in Logicke; that an argument drawn from termes of diminution, is of no validity, or force. As for example, when a man is dead, it doth not follow; that because he is a dead man, therefore he is a man, or hath the properties of a man, as that hee is rationall, risible, or the like. By the reason which rules in this principle or maxime, our Saviour denies that inference of the Jewes, who argued themselves to be the children or seed of Abraham, because they were his carnall seede, or came from him according to the flesh. If yee were Abraham’s children, saith hee to them, yee would doe the works of Abraham: implying, that because they did not the workes of Abraham, they were not his children (viz. in that proper and emphaticall sence, wherein the Scripture is ordinarily to be understood, when it speaketh of Abraham’s children, and of the great promises and priviledges belonging to them). In like manner the Apostle Paul, when hee speaks of the priviledges and blessednesse setled by promise upon Abraham and his seed, still understands the word, seed, not in that diminutive or equivocall sense, wherein it comprehendeth as well his carnall or wicked seede, as that of a more noble descent, but in that emphaticall, weighty, and appropriate sence, wherein it only signifieth the children of Abraham indeed, i. spiritually such, and who resemble him in his faith and holinesse. After the same manner, when either the lawes or people of the Land, in their accustomed discourse, (and consequently the Solemn League and Covenant) speake of rights and priviledges of Parliament, they (doubtlesse) doe not take the word, Parliament in an equivocall and comprehensive sence, wherein it may be extended to anything, which in any sence or consideration may be called a Parliament, but in an Edition: current; Page: [342] emphatical & restrained sence, viz. as it signifieth a politicall body, consistory, or court of men, chosen by the people into Parliamentary Trust, faithfully prosecuting and discharging the import of the Trust committed to them. If this property be wanting in them, they are but a Parliament so called, not having the worth or consideration, whereunto such Rights and Priviledges which are called, Parliamentary, either according to principles of reason and equity, or according to the intention of the first Donors or founders of them, doe belong or appertaine. The premisses considered, evident it is, that the Army did not violate or breake any the rights and priviledges of Parliament, properly, or Covenantly so called, when they reduced the Parliament to the true nature, dignity, and honour of a Parliament, by secluding such Members from it, who altered the property, and turned the glory of it into a lie.

2. Be it granted, that the Army stood bound by their Covenant and Oath, to preserve the rights and priviledges even of such Parliaments as that was, which they divided, yet they stood bound also by the same Covenant and Oath, to such a duty or engagement, the faithfull application of themselves whereunto, in the case in hand, did fairely both in the sight of God, and men, discharge them from that other obligation: even as the duties of circumcising, and of sacrificing, when the seasons appointed for them by the law, fell on the Sabboth, priviledged those from guilt in breaking the law of the Sabboth, who performed them on that day. It is a common rule avouched by the best of our Divines, and by the light of nature and reason itselfe, that when two duties or commands meete in such a streight or exigent of time, that they cannot both receive that honour of observance, which belongs unto them, that which in the judgement of the Law-giver is the greater, ought to be observed, and the lesser to give place, for the time. Now in that Covenant and Oath which the objection speaketh of, there are these two duties or engagements (amongst others) imposed upon those, who take it. 1. An endeavour to preserve the rights and priviledges Edition: current; Page: [343] of Parliament. 2. The like endeavour to preserve THE LIBERTIES OF THE KINGDOME. The Covenant in both these, as in all other particulars contained in it, the takers of it stand bound by the expresse tenour thereof (in the sixth Article) to promote according to their power against all lets and impediments whatsoever: and what they are not able THEMSELVES TO SUPPRESSE or overcome, they shall reveal and make knowne, that it may be timely prevented or removed: all this they shall doe as in the sight of God. Which last words (compared with the words mentioned from the third Article) cleerely import, that the Covenanters stand bound, to promote the liberties of the Kingdome against all lets and impediments even in Parliaments themselves, if any be found there: yea and further suppose, that they may THEMSELVES SUPPRESSE and overcome what they are able (viz. of whatsoever opposeth the intent & end of the Covenant, which doubtlesse, was the benefit and good of the Kingdomes) especially when they know not where, or to whom to reveale or make knowne the obstructions they meete with, in order to any probable or likely prevention, or removall of them, in due time. Therefore if the duty of preserving or promoting the peace and liberties of the Kingdome, be greater, than that of preserving the rights and priviledges of the Parliament; and the Armie could not performe the former, without making such a breach as they did, upon the latter; evident it is, that in making this breach they are innocent and blamelesse. For the latter of these, it is cleare as the Sun from what was laid downe Sect. 21. that had not the Army interposed to such a breach of rights and priviledges, as is charged upon them, the peace of the Kingdome, had (in all human likelihood) been swallowed up in blood, and the liberties in oppression and tyranny. Concerning the former, there is full as little, or rather lesse, question. That common maxime, which rules especially in politicall affaires, Bonum quo communius, eò melius, the more common or extensive a good is, the greater or better it is, doth sufficiently confirme it. The preservation of the liberties of the whole Edition: current; Page: [344] Kingdome, is without peradventure a greater duty, than the maintenance or preservation of the liberties or priviledges only of a part of it; especially of such a part, which, for numbers, is inconsiderable. Besides, that which gives a kinde of sacred inviolablenesse unto the rights and priviledges of Parliament, is that typicall relation which they beare to the rights, priviledges, and liberties, of the Kingdome, and Common-wealth. New types are alwayes inferiour to the things imported, and represented by them, as servants are unto their Masters; and when they occasion, or threaten any damage, to their anti-types, they may and ought so far to suffer a defacement, as the brasen serpent was beaten to powder by Hezechiah, when it occasioned Idolatry against him, whom it represented.

Thirdly (and lastly) suppose there had beene no expresse clause in the Covenant, injoining the preservation of the liberties of the Kingdome, as well as of the rights and priviledges of Parliament, yet had the Army a more than warrant sufficient to have stood up for the preservation of them, as they did, and that without any breach of Covenant. Men by the tenure of their very lives and beings, which they hold of the God of nature, their great Creator, stand bound to obey the Lawes of nature, and that against all other obligations or bonds whatsoever: yea, the truth is, that all other obligations cease in the presence of this, all Lawes, Covenants, and engagements besides, being homagers unto it. Now there is no Law of nature that speakes more plainely, or distinctly, than this; that the strong ought to stand by the weake in cases of extremity, and danger imminent, especially when reliefe cannot reasonably be expected from other hands. Nor is it credible that either the Covenant-makers, or the Covenanttakers, did thereby intend, either in the generall, any disobligation from the Lawes of nature, or from duties, otherwise than by the said Covenant, lying upon men: nor in particular, any such preservation of the rights and priviledges of parliament, which should be inconsistent with the liberties of the Kingdomes. And it is a common rule amongst Edition: current; Page: [345] Lawyers, for regulating the interpretation of Lawes, as likewise of all other Declarations of men by words, whatsoever; that the mind or intent of the speaker, is to be preferred before, and is more potent [and consequently rather to be obeyed] than his words.

Nor doth the Act of the Army in that dissociation of the Parliament under debate, colour, or shadow (in the least) with the act of the King, breaking into their House, and demanding which, and how many of their Members he pleased, to be sacrificed upon the service of his will. For

First, It was more civility in the Army, to deny admission, or entrance into the House, unto those Members, whose sitting there they judged of desperate consequence unto the Kingdome, than it would have been, by force and violence to have pulled them out from thence; which was the King’s act, in actu signato (as the Schoole men distinguish) though not in actu exercito, the providence of God and men comporting to prevent this. And we know the old saying,

  • Turpius eiicitur, quàm non admittitur, hospes. i.
  • A guest we like not, ’tis more commendable
  • To keep, than cast, out from our doores and table.

Secondly, The Members which the King fought to lay hold of, and to disparliament, were such, who THEN were (or at least were so looked upon by him) as the greatest Patrons and Protectors of the Kingdome’s Interest, and who, like the cloudy and fiery pillar of old, kept the Egyptian prerogative from comming at the Israelitish liberty, to destroy it. Whereas the Members, who were denied the House by the Army, were turned Proselytes to prerogative, and had renounced the Law and Doctrine of the people’s liberties. Therefore

Thirdly (and lastly) the cleare tendency of the Act of the King, was the violation of the Law of nature, by seeking to advance the will and power of one, or of some few, above, and against, the peace and comforts of many, whereas the act of the Army held a loyall conformity with the royall Law, the face of it being manifestly set to subject the Edition: current; Page: [346] power, interest and will of one, unto their lawfull Superiour, the just Interest or comfort of many. Therefore to goe about either to justifie the King’s act, by the act of the Army, or to condemne the act of the Army, by the King’s, is as if I should undertake to prove, that the night is lightsome, because the day is so, or that the day is darke, because the night is so.

A fourth objection in the mouthes of some, against which they conceive the Army cannot be justified in the businesse in question, is, that all such actions are contrary unto, and condemned by the Lawes of the Land. But to this objection, at least to the weight and substance of it, we have already answered over and over; and particularly have asserted and proved, First, that all human Laws and constitutions, are but of a like structure and frame, with the Ceremoniall Lawes of old made by God himselfe, which were all made with knees, to bend to the Law of nature, and necessity. Secondly, That it is to be presumed, that the intent of all Law-givers amongst men, is, notwithstanding any, or all their Lawes seemingly commanding the contrary, to leave an effectuall doore alwayes open for the common good, and in cases of necessity, to be provided for by any person, or persons, whatsoever. Thirdly, that all Lawes binde only according to the regular and due intentions of the Law-makers. Fourthly, that the Lawes of nature, and necessity, are as well the Lawes of the Land, as those commonly so called. Fifthly, that when any two Lawes encounter one the other in any such exigent, or straite of time, that both of them cannot be obeyed, the Law of inferiour consequence ought to give place to that of superior, and the duty injoined in this, to be done, though that required in the other, be left undone. We now adde,

First, That we charitably suppose, that there is no such Law of the Land, which prohibiteth or restraineth any man, or sort of men, from being Benefactors to the publique; especially from preserving the publique liberties in cases of necessity, when they stand in extremâ Edition: current; Page: [347] tegulâ, and are in imminent danger of being oppressed forever, there being no likelihood of reliefe from any other hand. And if there be no such Law as this, there is none that reacheth the case of the Army, no not in the criticall or characteristicall circumstance of it.

Secondly, That in case there be any such Law as this, that it is a meere nullity, and the matter of it no more capable of the forme of a Law, i. of an obliging power, than timber or stone is capable of information by a reasonable soule, which according to vulgar Philosophie, rather than the truth is, the proper forme of a man. The Lawes of nature and of common equity, are the foundation of all Lawes (truly and properly so called) and whatsoever venditateth itself under the name or notion of a Law, being built besides this foundation, wanteth the essence and true nature of a Law, and so can bee put equivocally such.

Thirdly, If there be a Law, which maketh force, offered to Magistrates, or persons in Authority, in any kinde, or any interrupting or disturbing them in their way, punishable; yet neither doth this evince the act of the Army, we so much speake of, to have been contrary to the Lawes. The reason is, because it is the constant genius and manner of Law-givers and of Lawes, to lay down only the general rule, and to conceal the exceptions; which they still suppose, are, or may be. Now the exception doth not breake the Rule, nor is it properly contrary to the rule, I meane, so as to evince a nullity, or crookednesse in, only it is not comprehended within the verge or compasse of the rule. All cases, saith the Roman Oratour and Statesman, are not provided for by written Lawes, but only those which are plaine, the exceptions being left out, or omitted. Consonant hereunto is that of Grotius: In Lawes prohibitorie, saith he, the words are commonly larger, than the minde or intent of the Law. Upon which occasion, that vertue, which the Grecians call ἐπιείκεια, we, Equitie, appeares to be most necessary in a Judge, or any other, to whom it shall appertaine to expound Lawes; the property hereof being as Aristotle long since observed, Edition: current; Page: [348] to rectifie [or right state] the Law, where it is defective, thorow the generality of it. By rectifying the Law, he meanes nothing else, but a limiting and restraining the binding force of it to cases intended by the Law-makers; together with an exemption of such cases from it, which upon grounds of reason and equity it may be conceived never were intended by them to be concluded in it. So that in some cases to presse and urge the rigorous extent of the letter of the Law, is to turne the waters of the Law into blood, and to overturne the true intent and meaning both of the Law, and Lawgiver, at once. Such urgings and pressings of Laws without due limitation, gave occasion to that Proverbiall saying in Tullie; that the Highest justice, is the Highest injustice. And the Imperiall Law itself makes him no better, than a transgressor of the Law, who fraudulently abuseth the sterne prerogative of the words contrary to the sense and meaning of the Law. And elsewhere: no reason of Law, or fairnesse of equity will indure it, that through hard constructions [of words] we should turne those things against the benefit of men, which were wholesomely brought in [amongst them] for their profit and good. Doubtlesse they stumble at this stone, who pretend to finde any such Law amongst the Lawes of the Land, by which the Army should be denied a liberty, or lawfulnesse of power to secure the peace and liberties of the Nation, by such a method and course, as they steered, necessity lifting up her voice, and crying unto them with such importunity, to doe it. For (as the aforementioned Grotius well observeth) amongst all the exceptions, which are tacitly included in Lawes, there is none, either more usually, or more justly admitted, than that which ariseth from necessity. By what we have argued, and related from learned and judicious men in this point, evident it is, both by the light of reason, as also from the testimony of very competent witnesses, that whatsoever the Lawes of the Land be, the Army could be no transgressors of any of them in standing up, and interposing as they did, to vindicate the publique liberties of their Nation, in such a case of necessity, as that before them.

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A fifth Objection, wherewith some strengthen and comfort themselves against the deportment of the Army, hitherto justified, is this. The example of the fact must needs be of very dangerous consequence to the Kingdome. For by the same reason, and upon the same account, that the Army opposed the present Magistracy, and proceedings of the publique affaires amongst us, any other party of men, making, and finding themselves strong enough for the undertaking, may at any time attempt the like disturbance, and confusion: and so the Kingdome shall be alwayes in danger of the like combustions and broiles. I answer,

First, That the lawfulnesse or goodnesse of an action is not to be measured or judged, but by what may follow upon it, by way of sequell or event, by what is like to follow upon it, and this not by accident, or by misconstruction, but according to the native tendency, proper ducture, and inclination of it. It is wittily said by one, that he that goeth about to read the badnesse, or goodnesse of an action by the event, holds the wrong end of the booke upward. Christ did not amisse in giving a sop to Judas, though presently upon the receiving of it, the Devill entered into him, and prevailed with him to betray him very suddenly. Nor would it argue anything amisse in what the Army did, though never so many troubles, and tumultuous risings of people should breake out upon pretence of it. The reason is, because, as the grace of God itselfe, though a thing of most incomparable sweetnesse and worth, may neverthelesse be (yea, and daily is) turned into wantonnesse, and much sin and wickednesse occasioned by it in the World; so, and much more, may the most worthy actions and services of men, bee compelled to pretence the worst and vilest deedes that lightly can bee perpetrated. Therefore,

Secondly, Suppose the Army should have apprehended, not only a possibility, but even a probability, that that fact of theirs we speake of, would beget out of its owne likenesse, and occasion disturbances of quite another genius and spirit from itselfe; yet might it have been Edition: current; Page: [350] sinfull and unworthy in them notwithstanding, to stand still, and not to have acted as they did. The reason is, because when seed time is come, men must not observe the windes; nor regard the clouds, when it is time to reape. As men must not doe evill, that good may come of it, so neither must they forbeare the doing of good, because evill may come of it. Men are bound to sow the seed of good actions, though they had some cause to feare that an increase of Dragons would spring from it. But,

Thirdly, That no action of any bad consequence to the Kingdome, can truly plead legitimacy of descent from this of the Army, is evident thus. Where there is not a concurrence of the same circumstance (I meane, either formally, or equivalently the same) there can be no place for exemplarinesse, or likenesse of action. And when there is, or shall be, the like politicall constellation with that, under which the Army acted, the like action cannot in the direct and native tendency of it, be of any ill consequence to the Kingdome. The killing of a man by Titius being assaulted, and in his owne defence, is no ground, so much as in colour or pretence for Sempronius to slay a man travelling peaceably by him on the way.

Fourthly, Nor is it like, that the action of the Army wee speake of, should by any back doore of misconstruction whatsoever, let in mischiefe or disturbance into the Kingdome; considering that it was performed and done, in due order to such a provisionall settlement of affaires in the Kingdome, that as far as is possible, there may, neither occasion be given, on the one hand, nor opportunity left, on the other, to any party or number of men, to attempt any interrupture, distraction, or disturbance therein. Therefore, to pretend or plead, that the said action of the Army, is like to cause future trouble or disturbance in the Nation, is as if a man should say, that to build an house strong, walls, doores, and windows, were of dangerous consequence to invite theeves to asault, and break into it.

Fifthly (and lastly) The action of the Army is not disparageable by Edition: current; Page: [351] any possibility or likelihood of evill, that it may occasionally bring upon the Kingdome afterwards, more than the preservation of a man from imminent death is reproveable, because by it he is occasionally exposed to die another time. They who conceive that it had been better for the Kingdome, and more conducing to the peace of it in after times, that the Army should have sat still, and not interpose, as they did, argue at no better rate of reason, than I should doe, in case I should perswade my friend being dangerously sick, not to use the helpe of a Physitian for his recovery, because in case he did recover, his recovery might prove a probable occasion of more sicknesse unto him afterwards.

  • Quis furor est, ne moriare, mori? i.
  • What madnesse is’t, through feare of future death,
  • To wish myselfe deprived of present breath?

If the Army had not applied that plaister of steele to the boile, or plague sore of the Kingdome, which they did, there had been little, or no hope of the recovery thereof, from that politicall death, the symptomes whereof, had so strongly seized the vitall parts of it. So that though the cure, in processe of time should prove an occasion of a relapse, or bring the like distemper againe upon it; yet, as Hezechiah was not without cause thankfull unto God, who made an addition of fifteene yeares unto his life, after his sicknesse unto death, though this addition did not excuse him from dying afterwards. So shall the people of the Nation have just cause of thankfulnesse unto the Army for those dayes of freedome and peace, be they fewer, or be they more, which they shall enjoy, though slavery and oppression should returne upon them afterwards like clouds after the raine.

Another Objection, deemed by some impregnable, and above answer, is framed by way of inference from Rom. 13.1,2. Let every soule be subject to the higher powers—Whosoever therefore resisteth the power, resisteth the Ordinance of God: and they that resist, shall receive to themselves damnation. From hence the Army are concluded Transgressors, Edition: current; Page: [352] and liable to condemnation, because they resisted the higher powers; and therein, the Ordinance of God. But with this Objection we are not behinde hand, having given a sufficient answer unto it already, the substance of it being nothing but what the second Objection offered. Notwithstanding because we desire to give heaped measure of satisfaction, especially to such arguments, which pretend to the Scriptures; we thought it not amisse to lay the words themselves before you, out of which the objection is framed, and so to give in the surplussage of a further answer unto it. Therefore

1. We answer, by distinguishing (with the Ministers of Scotland, in their briefe Theses de Majestatis jure) betweene the power of Magistrates, and the abuse of this power. The power (say they) is from God, and so his ordinance, but not the abuse of it. Yea, hee no whit more allowes the abuse of a lawfull power in one Tyrant, than [the use of] an unlawfull power in another. So that if it were the abuse only of a lawfull power, which the Army resisted, they resisted no Ordinance of God, nor are they, for such an act, made liable to any condemnation by the Scripture mentioned. Now that it was not any power, but the abuse of power, which the Army resisted, hath been more than once, clearly enough evicted in this Apologie; and is further evidenced from hence; no other power, but that which is Parliamentary, can be pretended to have been resisted by them, in that act so often mentioned. But that they did not resist this power, but the abuse of it only, appeares; 1. Because this power remaines at this day quiet and undisturbed, in the midst of them. Yea 2. Their great care and desire is, to settle this power upon better terms for the due government of the Nation, than those, on which it hath been continued hitherto.

If it be said, that the Parliamentary power now in being, is no lawfull power, because it is under force; I answer, 1. that it is no more under force, than it was, whilst all the Members now secluded, had free liberty to sit and vote in that House. The same Army, which is now pretended to overawe, or keep under force the present Parliament, Edition: current; Page: [353] was as neer, and did as much to the Parliament then, in matter of force or awe, as now it is, or doth. Therefore if it were a lawfull power then, it is no lesse lawfull now. 2. Nor is the Parliament at this day under any more force, by reason of the Army, than it was for the space of about two years together before, by reason of the continuall tumultuous engagements and practices, both in City and Countrey. Nay 3. I verily believe, that if the Members of Parliament now sitting, would please to declare themselves upon the point, they would acknowledg and confesse, that they are as free from force, or feare (at least in respect of the Army) now, as they have beene at any time since their first meeting in their House. But to the maine objection in hand, I answer.

2. The ordinance of God in Magistraticall power, being the adequate foundation, upon which that subjection, or obedience, which he requireth of men unto it by his command, is, and ought to be built; evident it is, that this subjection is not commanded or required to this power, beyond the ordinance of God in it; i. unto any act, or injunction of men invested with this power, which swerveth from, especially which opposeth, this ordinance of God (in the end and intent of it). Now the end and intent of the ordinance of God in magistraticall power, being (as the Apostle cleerly asserteth, vers. 4.) the good of those that are subject to it [For he is the Minister of God to thee, for good] it is evident yet further, that there is no subjection commanded by God unto any higher power, further, or otherwise, than they act and quit themselves in a due order and proportion to the good of men. And where subjection is not commanded, resistance is not prohibited; and consequently, is not unlawfull. For where there is no law, there is no transgression. Therefore if those higher powers, the resistance whereof the objection chargeth upon the Army, were found acting, and apparantly bent to act on, in a way of manifest prejudice and opposition to the good of those from whom they expected subjection (which I presume, is little questionable to him; that hath read and weighed Edition: current; Page: [354] the premisses) and consequently, quite besides the end and purport of the ordinance of God, the Army, in that resistance which they made against them, transgressed no law, or precept of God.

Nor doth it follow from anything that had been said, that a Magistrate for every errour in the administration of his power, may be deposed from his place of Magistracy by any party of men: but this is that, which only followes, that, when the supreame Magistracy of a Kingdome shall be so farre, whether blinded in judgement, or corrupted in affection, that such counsels and actings put forth themselves in them from time to time, which are apparantly detrimentous and destructive to the generall and great interest of the due liberties of the people, reasonable security may be taken of them by any party of this people, having the opportunity, and all others wanting it, that they shall proceed and act no further in such a way.

3. (And lastly) that resisting the ordinance of God in the Higher Powers, which the Apostle (in the Scripture in hand) condemneth, Is not a detaining of men in Authority, though with a strong hand, from doing mischiefe in their places; but either (as was formerly said) a refusing obedience unto their lawful commands, or awards: or rather a complotting or attempt-making to shake off the yoke of all obedience unto civill Magistracy. Calvin upon the place seemes to incline to the latter; Paraeus, unto the former, whose words are these: Yet every disobedience is not to be termed rebellion, or resistance; but only that, which out of malice is practised, or admitted, contrary to the lawes, by those, who refuse to satisfie the law, by suffering such punishment, as they have deserved. If either of these interpretations of the place be admitted, certain it is, that it reflects no bad colour at all upon the action of the Army; who neither refused obedience in what they did to any command (much lesse to any lawfull command) of their Superiours, nor yet declined the giving of satisfaction unto the lawes, by refusing to suffer any punishment, which they had deserved. Paraeus layes downe this position upon the place, and maintaines it by argument; Edition: current; Page: [355] viz. That it is lawfull for subjects, though meere private men, in case a Tyrant shall assault or set upon them, as Thieves use to doe, and offer them violence, in case they want opportunity to implore the ordinary power for their reliefe, and can by no other means escape the danger, to defend themselves and theirs, in the case of present danger, against this Tyrant, as against a private robber upon the highway.

But concerning the true sence of the place, Calvin’s apprehensions are of best comportance with the words; which properly and primarily speake of magistraticall power or Authority in the abstract, and this under such a circumscription and consideration only as it proceeds from, and is authorized by God, and not of the persons of Magistrates at all, otherwise than they administer this power in a regular and due order to the end intended by God in it, which is (as hath beene shewed from vers. 4.) the good of those, that live under it. First, he doth not say, let every soule be subject to the higher Magistrates, but, to the higher powers. 2. Nor doth he say, There is no Magistrate, but of God; but, there is no power but of God. Nor 3. doth he say, the Magistrates that are, but, the powers that are, are ordained of God. Nor 4. Whosoever resisteth the Magistrate, but, whosoever resisteth the power, resisteth the ordinance of God: and they that resist [viz. the power, not the person] shall receive to themselves damnation. 5. He demands, Wilt thou then not be affraid of the power? not, of the Ruler or Magistrate. Chrysostome takes speciall notice of these expressions, and thereupon commentarieth the place, thus: What sayest thou [Paul] Is then every Ruler ordained by God? No, saith he, I say not so: nor doe I now speake of particular Rulers, or Magistrates, but of the thing [or, matter] itself [i. of the order, or power of ruling]. For that there should be powers [or Magistracy] and that some should rule, and some be ruled, and that all things should not runne loosely and hand over head, or the people bee like the waves [of the Sea] carried hither and thither, I affirme it to be the worke of the wisedome of God. Pareus himselfe likewise carrieth the words directly to the same point. Hee names powers, (saith hee), Edition: current; Page: [356] rather than Kings, Princes, &c. because he would bee understood to speake, not so much of the persons, as of the order. [or ordinance itselfe of ruling] For in the persons [of Rulers] vice oft times, and causes of not obeying, are found: therefore he would have the powers, to be differenced from the persons.

It is true, the Apostle names Rulers, ver. 3. where he saith, Rulers are not a terrour to good workes, but to the evill. And ver. 4. of the Magistrate or Ruler he saith, that hee is the Minister of God to thee for Good; and afterwards, that he is a revenger to execute wrath upon him that doth evill. But evident it is, that in these passages, hee speakes of Rulers and Magistrates not simply, or at large, but under the precise consideration of persons exercising the power, which they have received, in a due subordination unto God, and with a single eye to the procurement of that good, which God intended unto those, who are to obey, in his ordination of such powers. So that nothing can be more cleere, than that the adequate scope of the Apostle, in the Scripture before us, was to perswade Christians to owne, and to subject themselves unto, civill Authority, as the ordinance of God, so farre, and in such cases, as it should be administered by the persons invested in it, in a regular and due proportion to the benefit and good of those. i. of those communities of men respectively, who live under them; and from whom obedience and subjection are, upon such an account, due unto them. This supposed, we may safely, and without the least occasion of scruple, conclude, that there is nothing appliable in the Scripture in hand, to the case of the Army hitherto argued; unlesse (haply) it should be supposed (and the supposition will not be altogether without ground) that the Apostle inforcing subjection unto civill Authority, meerely as, or because, the ordinance of God, and as administered according to the gracious intentions of the founder and ordainer of it, tacitly, and in a consequentiall way, implieth a liberty in men to decline this subjection, when the administrations of it are irregular, and the gracious intentions of God violated in them. For in Edition: current; Page: [357] many cases, when an action is pressed in the nature of a duty, upon a speciall consideration or ground, the consideration failing, the action loseth the nature and relation of a duty. Now if this supposition be admitted, it is a cleare case, that the Scripture under debate, is altogether with, and not at all against, the Army.

I know nothing of moment, that can be opposed against the lawfulnesse of the action, hitherto apologised and justified in these papers, beyond what hath been already bought and sold (I meane, urged, and answered) at sufficient rates. The lawfullnesse of the action we speake of, being supposed, the honour and worth of it are of much more easie demonstration. For what better favour can a Christianly-heroique Spirit spread abroad of itselfe, than when men shall put their lives in their hand, and in this posture stand up to take Lions by the beards, when they are ready to teare in peeces, and devoure the Sheepe of the fold? To attempt the wresting of an Iron Sceptre out of those hands, which were now lifting it up to breake a poore Nation in peeces like a potter’s vessell? What the Army hath done in this behalfe, calleth to minde the unparallelable example of the Lord Jesus Christ, blessed forever, who descended into the lower parts of the Earth, went downe into the chambers of death, from thence to bring up with him a lost World. It was the saying of Plato, that to doe good to as many as we can, is to be like unto God. But to doe good to as many as we can, as well enemies, as friends, by an exposall of our owne lives unto death for the accomplishment of it, is a lineament of that face of divine goodnesse, which Plato (it is like) never saw. It was the manner of almost all Nations (as the Roman Orator observeth) to place the Assertors of their Countries’ liberties, next to the immortall Gods themselves, at the Table of honour. And I make no question, but when the Inhabitants of this Nation shall have dranke a while of the sweet waters of that Well of liberty, which the Army have digged and opened with their Swords, after it had been for a long time stopped and filled up with earth by the Philistines, Edition: current; Page: [358] they will generally recover that Malignant feaver, which now distempereth many of them, and be in a good posture of sobriety and strength to rise up early, and call their Benefactors, Blessed. However, the good will of him that dwelt in the Bush, be upon the head of such Warriors, who pursue that blessed victory of overcomming evill, by doing good; and according to the method of the warfare of Heaven, seeke to reconcile a Nation unto themselves, by not imputing their unthankfulnesse, or other their evill intreaties unto them, but in the midst of their owne sufferings from them, set themselves with heart and soule to set them at liberty from their Oppressors.

finis.
Edition: current; Page: [359]

Anonymous, The People’s Right Briefly Asserted

Anonymous

THE

PEOPLES

RIGHT

BRIEFLY

ASSERTED.

LONDON,

Printed for the Information of the Commonality of England, France, and all other neighbor Nations, that groan under the oppression of Tyrannical Government. 1649.

Edition: current; Page: [360]

On 1 January 1649 the Rump House of Commons passed an act creating a High Court of Justice to try Charles I for treason. There was, of course, no established mechanism for holding a king personally accountable, let alone putting him on trial. When the House of Lords rejected the ordinance, the Commons responded with a proclamation announcing that the ultimate constitutional power lay with the people, and the people had delegated it to them, their elected representatives. The Commons then passed an act setting up a High Court of Justice.

Almost immediately a series of pamphlets appeared debating the legality and necessity of putting the king on trial. Some parliamentary stalwarts, such as William Prynne and Colonel Edward Massey, Edition: current; Page: [361] who had been excluded at Pride’s Purge, published tracts that vehemently objected to the proceedings.

“The Peoples Right Briefly Asserted” appeared on 15 January in the midst of preparations for Charles’s trial. Its anonymous author fully endorsed the right of Parliament to try the king. He bases this conclusion on the theory that the law “is more powerful than the King. . . . But the whole Body of the people are more powerful than the Law, as being the parent of it. For the People make the