1649: Ball, Rule of a Free-Born People (Pamphlet)
- Collections: The English Civil War
Source: The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1.
William Ball, Constitutio Populi Liberi. Or, the Rule of a Free-Born People (1646)
Little information has survived about William Ball of Barkham, esquire. He and his friend Sir Francis Pile, baronet, to whom he dedicated “Constitutio Liberi Populi. . . ,” were both from Berkshire. Ball was probably the William Ball, attorney of the Exchequer Court’s Office of Pleas. If so he started out writing as a royalist pamphleteer but apparently had a change of heart by 1645 when he stood for, and was elected to, the Long Parliament for Abingdon. Certainly the views expressed in this tract published the following year would have placed him among the radicals.
The preface of the present tract is dated 12 May 1646, the month Charles I surrendered. The probable publication date was 18 June 1646. The collapse of the royal cause with the surrender of the king had provoked urgent discussion about the appropriate shape of a future government. Concerns that had arisen during the first winter of civil war, when Parliament was negotiating with the king, reemerged with greater force. Again there was the danger, as radical supporters of Parliament saw it, that members of the Commons eager for a settlement might betray the cause.
Ball’s tract makes it clear, however, that he was a champion of popular, not parliamentary, sovereignty. He insists that if a people are free-born as the English are, ultimate power resides in them, not in their government. That being so if either the king or Parliament attempted to deprive them of their rights, the people were entitled to resist. In this he differs from the Levellers who looked to representative government to protect the people.When Levellers referred to appeals to the people, they meant new elections. Their goal was to make parliaments more truly representative.
“Constitutio Liberi Populi ” appeared in a single edition. Other tracts by Ball would follow. In 1648 he engaged in a lively published exchange with the imprisoned royalist judge, David Jenkins, over the power of kings and the role of the people. There is uncertainty over Ball’s activities after 1648. Although he was not purged from the Long Parliament by Colonel Pride in December of that year, he did not serve in the Rump Parliament that succeeded it. Ball’s friend Pile had been elected to Parliament about the same time as Ball and, like Ball, was not excluded during Pride’s Purge but does not seem to have sat in Parliament after that event. Both men may have been so distressed by the army’s purge of Parliament that they chose to abandon their seats. Such behavior would have accorded with Ball’s views about sovereignty residing with the people. In any event Ball continued to publish during the 1650s.
William Ball, Constitutio Populi Liberi. Or, the Rule of a Free-Born People (1646)
First, Reason is Queen-Regent of Human Affaires; by the sight whereof men discern to walke in the prudent paths of Morality and Policy, even as by the Light of the Day they discerne to tread the paths of the Earth. And albeit that this interior light of understanding is in Divine things darkened, by the fall of our first Parent, yet doth the Eternall Light ever communicate to Mankind sufficiency of Reason (I intend for worldly things) thereby to direct his goings out, and comings in (according to the unnecessitating determination of God) as it were by a cloudy Daylight, though not a cleare Sunshine, whereby the Actions of men may severally be discerned.
2. Not long since I wrote a small Treatise, intituled, Tractatus de jure Regnandi, et Regni, or the Sphear of Government,1 the which albeit I conceived that I had squared it according to the Rule of Reason; yet some conceive, that it wants its true proportion, or line, and that I have too much extended the Innate liberty of the Free-born People of England: to satisfie (or otherwise convince) such, I have published this Epitome of State-Rule, or Government, desiring all men to weigh, and consider what I have written, not with the Prejudicating Eye of Affectation (which many times misleadeth apprehensive judgments) but with the Ballance of Reason to ponder every Graine, and if the weight be just, and levell to approve, and accept of it; if somewhat too light, to adde of their own understandings what is deficient.
3. It is certain, that had Man never fell from his state of Innocence, there had been a superiority, or rather priority in Nature (viz. That the Parent should have been known and reverenced as the Instrumentall cause of the Child, &c.) but there had been no soveraignty, and consequently no subjection; for had there been no sinne there had been no need of a justiciating Power, nor a Subject to which that Power could have determinated, or terminated itself; every man’s Actions would have been regulated by the Eternall Law, written in the hearts of men; So that there had been no need of Additionall, or Nationall Lawes. Wherefore (by the way) I cannot assent to the Opinion of that Gentleman (Fortescue) who said, that all Mankind should have been governed by the Lawes of England, if Adam had not sinned in Paradise; for by his favour if Adam had never sinned [in School-Reason, or Divinity] he had either always lived in Paradice, or else finished a compleat thousand years (which the Apostle Peter calls a Day with God, 2 Pet. 3.8.) and then had he either been assumed into Heaven alive, or else (if God had decreed a separation between his Soul and Body) he had yeelded himself into the hands of his Creator, sine dolore mortis, sine timore paenae, without pain of death, or fear of punishment, and had left his Earthly habitation to his posterity, who should have possessed and enjoyed the same, without any the least contention, or controversie, regulated only by the Eternal Lawaforesaid. But (to return) no sooner sinne, but with it subjection entered as a curse, and therefore God said to woman, that she should not only bring forth in pain (which God would have dispenced withall if she had not sinned) but also that her desire should be subject to her Husband, and he should reign over her, Gen. 3.16. It is very probable that if she had not sinned, she should notwithstanding have tendered a reverence to her Husband as more noble in Sex and created before her in time but she should not have rendered a subjective Obedience, if disobedience had not made her subject.
4. And albeit that subjection is a scourge of sinne, yet it hath pleased the Almighty according to his divine will, to cause some Persons, and Nations, to be more subject than other some; many times enthralling, and enslaving them by Tyrannicall, or Imperious Instruments for their sinnes (as the sacred Bookes of the Judges, Kings, and Chronicles sufficiently declare) and upon their Humiliation, or for other secret causes known to his Divine wisdome, he hath mercifully released, or mitigated their yoak, as the sacred Writ yea and human Records testifie at large. And sometimes God hath done this by speciall, or miraculous meanes, as he did to the people of Israel; sometimes by ordinary wayes, as the Florentines (albeit of late enslaved) purchased their liberty of the Emperour for money, and so also did other Cities of Italy, and elsewhere in Europe, others by plain defiance and Arms, have regained their Freedome (that is, to dispose of themselves) as did the Cantons of Switzerland, the Provinces of Holland, Zeland, &c. and either of these wayes may be said to be just; for Id Iuris est, quod Nationis est, that is lawfull, or Law which a Nation generall approveth, or admitteth of; and there need no speciall Warrant from God for anything that they shall do agreeable to their Naturall, or Human Reason, anymore than it needed to the petty Kings and people of Sodom, and Gomorrah (instanced in my former Treatise) or to the Nation of the Jewes in the time of the Machebees. And albeit that a Nation in generall should approve, and admit an erroneous Law (as I know not any Nation, State, or Parliament that is infallible) yet such Law ought to be kept, and observed as a Law, because men have power to tie and oblige themselves to inconveniences (if God prevent not and prudent Reason dictate not the contrary) as to conveniences, and their Errour being Nationally generall, must either be admitted of all persons (comprehended within their Rule) as legall just, or else permitted, because it is constituted by the highest Power human, from which there is no appeale but to God, who in his good time will either mercifully illuminate their understandings or reform their Errour, or justly chastise them for their perseverance in Errour.
5. And the Rule of a Free-born People, or a People free to dispose themselves consists in that, wherein the People in generall constitute or determine themselves, not in that wherein they are constituted; or determined, tanquam ab alio agente, by some other instrumentall cause, for then are they not free. So that it is destructive to the very Essence of their Freedome not to be able to determine themselves to that which they conceive to be Bonum commune, that being their adaequate, and proper object. And this they must not be able to do sometimes only, and originally, but perpetually, otherwise, deficiunt a libertate proprie loquendo, & sunt tantum liberi secundum quid, vel denominative; they cease to speak truly, to be free, and are only free in Denomination or a kind of Titulary Freedome; for naturall Reason dictates, that everything ceases to continue, when the Form thereof, or the Originall Form ceases to be; so that if a people can Originally dispose or determine themselves, and cannot afterwards Actually do it, their Original power, or form of disposing or determining themselves ceases to be—But it is to be noted, that no People in the world (intending to be free) subditi potius quam subjecti, and who have either conserved their Originall Freedome, or Actually regained it, do, or did ever grant a Power to one, or more or constitute a Power in one, or more that should be destructive to their intended Originall Freedome; For as John Cook of Gray’s Inne Barrester, in his Epistle Dedicatory, in a Booke entituled the Vindication of the Professours, and Profession of the Law,2 hath ingeniously said; All Power and Authority is given for preservation, and edification, nothing for destruction and desolation; so that albeit a People, or Nation, to avoid disorder, do constitute a Ruler, or Rulers to conserve Order and do generally consent to direct their human Affaires according to such Rules as shall be by him, or them, or both given or prescribed; yet they ever intend that such Rules must not be directly opposite, or against the Law of Nature, or their Naturall Liberty. If they be, they may chuse whether, or no they will admit, or receive them; they constitute, or institute their Ruler or Rulers their power extensive, but not primitive, or intensive, that is to say, their innate and inseperable Freedome ever intended to dispose, or determine themselvs, In bonum commune prout omnibus visum erit, this they never part, or parted withall; for at what time soever they should do it, they cease to be Populus liber, or liberi subdita, a free People, or a People which are freely under a Law by common consent as aforesaid—And of this I shall instance a similitude in Nature: The Element of Water is not of itselfe extensively coloured, but is apt or applicable to receive any colour; yet it is intensively white (it being Nature’s Innocent Originall colour) as is sufficently 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 (to; ajnqrovpinon ajgaqo;n) the generall benefit of Mankind.Formy part, Anathema be to such, who desire to deprive a King of His just Prerogative; Anathema be to such, who desire to deprive a Parliament of their just Priviledge: but Anathema Maranatha3 be to such who should any way desire to deprive a Free-born People of their just Liberty, or Propriety.
6. Nor can I conceive, but that the English Nation, or People are (if rightly considered) one of the most freest Nations in the World; for they cause, or require their Kings to take their Oaths to conserve their Lawes and Liberties, before the Crown actually invest their Temples; thereby shewing that they reserve, and intend their generall Liberty and Propriety. And albeit, that a King of England have his Ius Regnandi, or Right of Reigning by Inheritance as I have instanced in my former Treatise; yet illud jus quamvis sit quoad potentiam, sive officium potestatis derivativum, est tamen quoad exercitium potestatis Relativum, that Right of Reigning, although it be derivative in respect of the King’s personall Authority, or rather Office for Authority, yet is it relative in respect of his Exercising, or performing that Authority; for though the people obey the King as their chiefe Ruler, or Magistrate before his Oath taken, yet it is ever with reference, or relation, that He should take His Oath for their preservation, and good in generall, and performe the same; otherwise they have recourse to their primitive, or intensive power, as in the case of Edward the second, from whom Sir William Trussell, Speaker of the Parliament, in the name of all men, or people of England, constrained, or took his Royall Office, or Authority; or to speak more truly, deprived him of it, without any former precedent, exercising the intensive power of the people; for Trussell said not to EDWARD the second, in the Name of the Lords and Commons assembled in Parliament, or in the Names of the Commons assembled in Parliament, but in the Name of all men or people of England, &c. thereby expressing, or manifesting the People’s Primitive, or intensive Power, more than the Parliament’s secundary or extensive Authority.
7. And as the English Nation, or People cause their Kings formally to swear, or take their Oaths to conserve their Lawes, and Liberties; so they cause the Parliament (I meane the Body collective, or representative of the People, viz. the Knights, Citizens, and Burgesses) to take their Oaths (if not formally) yet at the least virtually, to conserve their generall Liberty, and Propriety, to do all good they may for the places that intrust them; all which they faithfully promise at their Elections. So that the English Nation, or People never gave, or voluntarily assented, that their Kings, or Parliaments, or Both, should have an absolute Domineering, or Arbitrary power over them, but only a Discretive, or Legall Authority intended ever for their good in generall; their ever reserved, and as it were Essentiall Propriety.
8. Wherefore I cannot but marvell at such (whether Kingly Royalists, or Parliamentary Realists, in this case it makes no matter) as by a kind of Idolizing King, or Parliament, or King and Parliament, would suppose, or perswade the People that their Lives, Liberties, and Proprieties are disposable by King, and Parliament, ad Placitum; one John Cook of Graye’s Inne Barrister,4 by me already cited, hath in his Vindication of the Professours, and Profession of the Law inserted, that I have in my former Book, intituled, The Spheer of Government,5 introduced a dangerous Opinion, by putting, or stating a supposition, or rather a Praesuppositive case, that if King, and Parliament, or King, or Parliament, should make an Act that they would, and might dispose of all Subjects’ Estates in England (he should have added ad Placitum, for those are my words) that in such case the Counties, Cities, and Townes corporate might if not remedied declare, and protest against such an Act, if violated, then they might defend themselves by Armes. And to convince this my Assertion, in the next Page, he sayes, if the supream Court be not supream to all intents, it is not supream to any intent, because there is an higher above it. This is no good consequence; for a Power (and consequently a Court of Power) may bee supream to some things, yet not to all.The King of Polande, for life, is supreame to appoint what place he thinks fit within the Precincts of the Dominions of Poland for the convening or assembling the Diets, or Courts of the Peers Spirituall and Temporall of that Kingdome; and the King of Poland is also supreame to censure, or punish any of his owne Tenants, and Vassals, or Slaves; yet is he not supreame to censure, or punish any of the chiefe Nobility, but by consent of his Assembly, or Court of Peers; nor can hee meddle with any of their Tenants, Vassals, or Slaves; or determine absolutely of Peace or Warre, &c. In the Common-Wealth of Geneva (which he calls a pure Democracy) the People in generall are supreame to nominate, or elect Two Hundred which are the Grand-Councell; and those Two Hundred are supreame to nominate, or elect the Twenty five, and yet not supreame to elect the foure Syndiques, or Annuall Governours, or rather Rulers, &c. So that it is no good consequence (as afore-said) to affirme that, if the Supreame Court be not supreame to all intents, it is not supreame to any intent, because there is another above it. For in Geneva it is evident, that the Two Hundred or Grand-Councell, is the supreame Court, and yet not supream to all Intents; the People indeed, or Common-Wealth in generall, (which are the supreame Power, though not Court) are supreame to all Intents; but of that hereafter.
9. But the Gentleman sayes, that there are in the Kingdome so many thousand Acres of Land, either the Parliament may settle, and determine the Right of all their Acres (hee meant surely those Acres) or not of any one of them, for there is no medium, &c. But what is this to the purpose, of the Parliament having a power to dispose of all Subjects’ Estates ad placitum?Who knowes not, but that the Parliament can determine the Right of all Acres in England, in foro judicii, as v. g. the Parliament can determine whether White Acre belong to Right to Oakes, or Stiles, let the Title of either of them be never so difficult, or obscure, and the Parliament can determine whether or no,Oakes or Stiles have forfeited their Propriety of, or to White Acre for Delinquency, &c. Moreover the Parliament can (which no other Court can doe) applicare in necessitatem Regni, apply to, or for the necessity of the Kingdome so much of the profits of White Acre, as to them shall seeme convenient; provided that the cause, or causes thereof be made manifest, that Oakes, Stiles, and all men may (if they will) take notice thereof; and provided also, that an Accompt be given how and which way the profits of White Acre have beene for such cause, or causes applied, and disposed of; for no Free-born Englishman (much lesse the Nation in generall) ought to be deprived of any his Right, or propriety without good cause.Notwithstanding the Parliament of England cannot disponere ad Placitum, dispose at their will and pleasure barely of White Acre (no, nor of one Acre of waste in England) v. g. that whereas White Acre belongs of Right to Oakes, Stiles shall notwithstanding have it because it is their will and pleasure; this they cannot doe; for at what time they should do it (albeit I suppose it almost impossible that they should do it, as I have formerly instanced) they faile, or fall from the Protection of the People, and usurpe to themselves an absolute Arbitrary and irregular Power, destructive to the generall good of the People and consequently cease to be a Parliament, and become Tyrants and Oppressors.
10. I cannot therefore but somewhat admire, that a Lawyer, and one that seemeth unto me to have understood Logic, should be (having been as it seemes to me sometimes seasoned with Intellectuals) so unsound in his Intellectuals, as not to distinguish between Disposing at Pleasure, and Determining of Right, or setling according to Right, being things of a different species, and not magis, or minus, in the same species. But it is not amisse to take a little notice how the Gentleman opposes himself; in his Book Page 4. he sayes, it is resolved in the Earl of Leicester’s Case, that an Act of Parliament against the Law of God and Nature is void; but this must be cautiously understood (sayes he) that I speak not of secundary, or lesse principalls ofNature, &c. Pray let him tell me, whether to dispose of Oakes’, or Stiles’ white Acre ad Placitum, be not directly against the Law of God and Nature; the Decalogue sayes, Thou shalt not steale; Thou shalt not desire thy Neighbour’s house, &c. And Nature dictates, doe, as thou wouldst be done unto. Now he, or they that dispose at their owne pleasure, of their Neighbour’s Acre, or Acres, do steale, for that he, or they deprive their Neighbour, or Neighbours of their Right, and Propriety; they covet also, for that they desire, and acquire to themselves a power of disposing at pleasure; they oppose also directly the Law of Nature, for they would not have anyone to dispose of their Propriety ad Placitum, or at their own wills, and therefore ought not to doe it to another; so that if the King and Parliament should make an Act, or King, or Parliament make an Ordinance, that they might dispose of all Subjects’ Estates, ad Placitum, &c. they oppose the Law of God and Nature, and even by his own citation, and assertion, it is void. And I am sure it is also directly opposite to the Rule, frame, and constitution of a free Nation (such as are the English, being no Turkish, or Muscovian slaves) where the Rulers and Governours are but intrusted (as I in my former Treatise have instanced) for the generall good of the Nation. And the Gentleman, albeit he hath cavelled at me in the latter end of his Book, yet hath he confessed, and acknowledged as much in his Epistle Dedicatory in two severall places. The first is by me already cited, notwithstanding I will mention the words again; which are, all Power and Authority is given for Preservation, and Edification, nothing for destruction, and desolation; the others in the same page are, for by the fundamental constitutions of this Kingdom, and the very frame and series of Government, the Power is intrusted into their hands to superintend and supervise all other Courts of Justice.Now surely if Power be intrusted to the Parliament (as truly it is) then can they not go beyond their Trust to dispose of the Free People of England their Estates, ad Placitum, but only to determine of them, ad Rectum, or Ius, or to apply them ad necessitatem Regni, to or for the necessity of the Kingdome, of which necessity they are the Judges. The Gentleman sayes, that many a man marries a widow that would be gladly rid of her children. For my part, I know not whether, or no, the Gentleman be married; or whether he have married a Maid, or Widow, but I am sure (if he rightly consider it) he may be glad to be rid of his sickbrain begotten Childe [his Asserveration that the Parliament is unlimited, and consequently may dispose of all the Subjects’, or Peoples’ Estates, ad Placitum] for I verily believe, that no man found in his Intellectuals will harbour it, or give it entertainment, nor can himself sustain it.
11. I grant him that the Parliament is the highest Court extensive (viz. to conserve the Rule, Order, &c.) but the People in generall (viz. the Counties, Cities, and Towns corporate) are the highest, or greatest Power Intensive, in that they are the efficient, and finall cause under God, of the Parliament.Now the efficient and finall causes are the most noble of causes, nor are they, or can they be subject, or subordinate to their owne effects, so farre forth as they are causes of such effects; so that the Parliament can never deprive the Counties, Cities, and Towns Corporate, by an Act, or Ordinance whatsoever, of their innate, and inseparable Right and Power of Electing, or creating Knights, Citizens, and Burgesses, de futuro, or for time to come, whereby a Parliament might be instituted, or assembled by any other way, than by way of free Election. No more can the Parliament deprive the free People, or Nation of England, of their Generall Liberty, and propriety, for in these things the Sphear of the Parliament’s Activity is circumscribed by the Nation’s large Bulke of Primitive, or intensive Power.Wherefore the Gentleman mistakes when he sayes page 89. It is impossible that the supreame Court in any Kingdome should be limited,&c. In thesePrecedents, amongst freeNations all supreame Courts are de facto, limited; as in Aragon, Geneva &c.
And for my part, I cannot find that the Parliament Practiceth an unlimited or absolute Power, for amongst other things they have instituted Committees, and Sub-Committees of Accompts, not only to vindicate themselves from the scandall imputed by some, (viz. that the Parliament should exact more from the people than the necessity of the Kingdome required, &c.) but also to give the people a generall satisfaction, how, and which way their Estates are applied, and imployed for the Necessity of the Kingdome.
12. And now I think good further to satisfie the Gentleman and such as adhere or incline to his opinion aforesaid, concerning the Primitive or Intensive power of a free People. I have already said that a free People are ever free to dispose, and determine themselves in Bonum commune, prout omnibus vissum erit, to a generall common good, as it shall seeme good to themselves: and that they never part, or parted with this power, for that at what time soever they should doe it they cease to be Populus liber, or liberi subditi, a free People &c. And to make this Assertion more conspicuous, and plaine, I instance this simile; Joint Free-holders, or Free-holders jointly, let a Lease for one thousand, or two thousand yeares, if the World endure so long, with reservation notwithstanding of a continuall acknowledgment to themselves, or otherwise the said Lease shall determine, and cease to be, and it shall be lawful for the said Free-holders, their Heires, or Successours to reenter into the said Free-hold, or Free-holds, and to dispose and settle them, at their pleasure. Even so a free Nation, or People let a Lease of their power for one thousand, two thousand, ten thousand yeares if the World so long endure, (no matter what time) to their Rulers (whom they institute and intrust) in which they give and grant power to them of Determining conserving, and applying their Liberties, Rights, and Proprieties justly, So to the particular good of every man, as may not repugne the generall good of all; so to the generall good of all men, as may not annihilate the particular good of one unjustly, or indirectly; with reservation notwithstanding of a continuall 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 Freeholders 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 reenter, but only in case of Breach of Covenant aforesaid; for if otherwise they do it, they are meere usurpers, and Oppressours; so the free Nations, or people cannot use their primitive, or intensive power, but only when the fundamental frame of their Efficient Power and their Liberties, and Proprietie are destroyed or violated ad placitum, as aforesaid, if otherwise they doe it they are meer Rebels and Anarchists, for they have intrusted all their other Judiciall Power concerning Determination, Conservation, and Application to their Rulers.
13. The Gentleman whom I have formerly cited hath said in his Book, that he never heard or read of anything more prejudiciall to the Parliament’s Authority, than my Assertion in my last Book, and in this, (viz. that the Parliament cannot dispose of the Free-people, or Subjects’ Estates here in England, ad placitum; but I must tell him that I never read of a more prejudicious, or pernicious to the Parliament, than to say that they may doe it; for what say many of the vulgar; if the Parliament may dispose of our Estates at their pleasure, how shall wee know that they will not? If any man tell them, that it is very unlikely, that so many will never consent to doe such a thing, for that they might by that means enslave their own Posterities.What say they, if they can dispose of all the Subjects’ Estates ad placitum, for ought we know they might exempt themselves, their Heires, and Successours; and likewise for ought we know they might make a Law that they will no more be Elected, or created by the Counties, Cities, and Townes Corporate, but by a perpetuall Denomination by, or from themselves. And what can be of more dangerous consequence, than that such an Opinion, or Opinions as these should once take root in the mindes of the Common People? And what can sooner cause them to take root than that they finde and reade a printed Booke allowed of to that purpose? But if one tell the vulgar, that the Parliament cannot dispose of the Subjects’ Estates ad placitum, or meerly at their pleasure, but that they can only apply in an equall way the Estates of the People to, or for the necessity of the Kingdome, of which Necessity they are the Judges; and likewise that the PARLIAMENT cannot make a Law, or Ordinance, that the Knights, Citizens, and Burgesses, shall, or may be appointed, or denominated by themselves (thereby to alter the frame and constitution of this NATION) but that they must perpetually from Age to Age be Elected, or created by the Counties, Cities and Towns Corporate; then they begin to harbour a better Opinion, and are more inclinable to undergoe their Ordinances. And I believe that the intent why the HONOURABLE HOUSE OF COMMONS published lately a Declaration the Seventeenth of April, 1646.6 Ordered to be read in Churches, was to undeceive the People that they never had any thought to dispose of their Estates ad placitum, and so forth; for they expresly say, and Declare, To maintain the Ancient and Fundamentall Government of this Kingdome, to preserve the Rights and Liberties of the Subject, &c.Wherefore I would not have the Gentleman, or any other to run beyond the marke; I like not Quid nimis, it hath been the cause of many Enormities in Church and Common-wealth. For my part I wish, as I have ever wished, and formerly expressed myselfe, that the King might enjoy his just Prerogative (as some call it) or Right of Reigning; and I wish, and desire as much as any other, that the Parliament might sustain their Priviledges, and Judicatory Power. But I could never suffer, nor would I if it were in my power any way to prevent it, endure that my Nation, or Fellow-Subjects should be enslaved by any Exorbitant Power (Potentate or Potencies) Forrain or Domestic; And I doubt not, but that the Ruler of Heaven and Earth will by his Divine Providence establish such Rulers and Rules in this KINGDOME, as may be a meanes to conserve this Nation from slavery and thraldome,AMEN.
Furthermore, having in my former Treatise and in this affirmed that the Parliament is the supreame Power Judicatory to censure and determine all matters doubtful, and disputable (for such hath been the constitution of this Kingdom for many Ages) I conceive therefore that the Parliament may, and have only Power to settle what form of Religion they shall think good; and albeit they should erre therein (as Parliaments may erre, and some de facto have erred) yet their Ordinances oblige Iure humano; that is, men ought either to obey such Ordinances, or if otherwise their Consciences dictate such Ordinances to be erroneous, they ought to undergoe such penalties as should be by them inflicted if they should impose or ordain any such. And as it is in the power of the Parliament to inflict penalties, so is it in their power to mitigate penalties, or inflict none at all for matter of Religion; wherefore for my part I greatly honour and reverence the care that the Parliament seemeth to take, and which the Honourable House of Commons have published in their Declaration 17. April 1646. already mentioned, That they have not as yet resolved how tender Consciences, such as differ not in Fundamentals may be provided for, so as may stand with the peace of their soules, and peace of the Kingdome; thereby intimating that they intend not to use severity, for matters of Religion meerly (a course though practiced by Pagans, befitting no men, much lesse Christians) but rather by clemency to induce men to embrace, or follow such Orders, or Ordinances touching Religion, as they shall institute. Moreover, I cannot but greatly blame such as would save men’s Consciences wrackt and enforced in disputable matters, or Tenets of Religion; such as blame Domineering in others, and yet would exercise it themselvs not considering what the Apostle Pet. hath written, I. Pet. 5.3 ... that Rulers should not be as over-domineering Lords or Christ’s Flock, but as Types, or examples to the flock; nor do such consideratly weigh the Apostles’ words, Gal. 6.1 Brethren, if a man be overtaken in a fault, ye which are spirituall, restore such a one in the spirit of meeknesse, considering thy selfe, least thou also be tempted. He bids them not menace,much lesse persecute for errour, nay the Apostle directly forbids it, Gal. 5.15. But if ye bite, and devour one another take heed ye be not consumed one of another, as if he had said, if ye break the Bond of Christian Charity, take heed least God give you not over to your malicious intentions and practices, by which ye may become Instruments one to destroy another. The holy Apostle likewise Rom. 14.10. forbiddeth men directly not so much as to judge a Brother for things indifferent, or for things which Christian Liberty in Christ giveth leave unto; for saith he, We shall all stand before the Judgement Seat of Christ: but it may be some will say, these, and such like Councels, or Precepts of the Apostle were spoken, or delivered by him concerning meeknesse, to be used in admonishing our Brethren, in errours meerly of Practice not of Doctrine, or in things not cleerly expressed in Scripture, not in things evident and plain in Scripture.To such I answer; what are the great matters in debate and controversie, or rather small matters in great strife, and contention now adayes agitated, but either matters meerly Practicall or exteriour Formes of Worship and Ceremonies, whether tollerable, or intollerable; or else matters obscure, or but by probable Arguments deducible out of Scripture, as Lay-Elders (a Businesse now of dayes, of no small consequence) whether they be not sufficiently warranted by this Text I Tim. 5.17. Let the Elders that rule well, be counted worthy of double honour, especially they who labour in the Word and Doctrine; the Greek hath it, ... “labouring in Word and Doctrine,” and from hence it must be deduced forsooth, that there were some Elders that did not labour in the Word and Doctrine, and consequently that such were Laymen. Truly others that are as sound in their judgments (it may be) as those that make this Deduction, will say that the meaning of that Text is this viz. Presbyters (or Elders) that rule well be accompted worthy of double honour in respect of the younger or inferiour; but chiefly such as beside their care, and ordinary performance of their charge labour extraordinarily in Preaching, and exhorting or edifying; even as one might say, let Civill Magistrates that govern well be counted worthy of double honour, in respect of other ordinary, and inferiour Persons; but chiefly such as beside their care, and ordinary performance of their Offices, according to their Oathes, and Duties, labour extraordinarily for the Publique good, by advising, and consulting. I doe not finde that it could be deduced from this last inference, that Clergiemen were, or ought to be Civill Magistrates; nor can I finde that it can well be deduced from the Apostle’s words, that Laymen ought to be Presbyters, or Church-Elders: and yet a great deale of stirre is kept about this businesse, and such like; And some would faine have their but probable Deductions, if so much, to be Orthodoxal Expositions, and so to be held de jure Divino, that’s no presumption. But by the favor of such, I would fain know whether they are infallible, or no; if no,why would they then impose their Expositions de Jure Divino; if they are infallible, I would gladly know how they now come by such an extraordinary gift of Infallibility, and that the World (by their own acknowledgment) hath wanted it for so many Ages, as they say, in all Ages since the Apostles’ time; as I have said, that in Civill Affaires there should not be Quid nimis; so I say in Church-Affaires and wish that men (for alas what are we all but men) would not take upon them Quid nimis, especially in matters either indifferent, or else obscure, and difficult or such as may admit of severall interpretations, and Constructions. I will instance for Example sake one Text of Scripture; viz. ... In the beginning was the word, &c. All Divinity tells us that Eternity is Identicum nunc, the selfe-same now, and that it hath neither Prius or Postivius, beginning, or ending; what beginning then can the Eternall Word (or Sonne of God) have? No beginning in time, because Eternall, nor in Nature because Increate.What beginning then? Or what may the word Beginning in that place signifie? Some will have the meaning of that Text to be this; In the beginning when the World was created, the word (verbum mentis) of the Father’s understanding was, and so if that were in the Beginning, that was before all Beginning; but this is no good consequence, sayes an Arrian, for the word might bee before the World, and yet be a patre tanquam effectus a causa, be as an effect caused by God the Father, and so have some beginning (as every effect hath) though before the World and to hold this is Heresie, for that the Father is not causa filii, but only Principium filii, not the cause, but naturall beginning of the Sonne.Others will have the meaning to be thus; in that beginning, or instant (which was, and is ever, or Eternall) wherein the Father knew formally his Essence, and Attributes, he spake, or begot the word of his mind, or understanding, being a Terme of his infinite Knowledge, not produced by necessity, or will, but emanating, or flowing as it were by naturall faecundity. Others will have the meaning to be thus; in that beginning or instant aforesaid, wherein the Father knew not only formally his Essence, and attributes, but also all creatures possible and existent he spake or begot the word of his mind or understanding; for say they, the word which is the Terme of the Father’s infinite Knowledg, is a perfectissima, & plenissima cognitione ejus, from his most perfect, and fullest knowledge; and from hence arise divers Arguments pro & contra, not only between the Thomists, Scotists, and other School-men, but also amongst other sorts, or Sects of Christians; but must men for these or the like disputable differences cut one another’s throats, or persecute one another? God forbid, there is not the least warrant in the New Testament for it. In the time of our blessed Saviour’s passing his humanity on the Earth, some there were casting out Devils in his Name, whom his Disciples forbad because they followed not Christ as they did; but our Saviour rebuked them, and bade them suffer them, and let them alone, saying he, or they that are not against us, are with us, adding moreover that it was not likely that any one should doe a miracle in his Name and speak ill of him.Our Saviour said not, that such as workt miracles in his Name should confesse, and speake all that ought to be confessed, and spoken of, or to his honour; but that such as spake not ill of him should (if they confessed his Name) be permitted, or suffered in this World. And shall not we then suffer one another in matters of Religion? Shall we ambitiously compasse our Neighbour’s goods, or meanes, under pretence of Religion, thereby scandalizing Christianity.No! Let all self-ends be abolished, and Peace and Union be embraced that we of this Nation may become an Elisium of comfort of Christian Charity, and mutuall Amity, one to another, and a Precedent of them all to other Nations.
1. William Ball, “Tractatus de Jure Regnandi & Regni: or, the Sphere of Government,” (25 October) 1645.Wing B597.
2. John Cook, “The Vindication of the Professors and Profession of the Law. By way of Answer to a printed Sheet intituled Advertisements of the New Election of Members for the House of Commons,” [6 February] 1646.Thomason Tracts E320 (17).
3. This expression means a thing accursed.
4. See reference on p. 287. 5. See Ball, “Tractatus,” 13.
6. “A Declaration of the Commons of their true Intentions concerning the Government of the Kingdom, the Government of the Church, the present Peace, etc.” (London), April 17, 1646.Wing E2562. Note by George Thomason states that four thousand copies were ordered to be printed, distributed throughout the “county,” and set up in every parish church.
Key Documents of Liberty
- -1750: The Code of Hammurabi (Johns translation)
- -1750: The Code of Hammurabi (King translation)
- 1117: Articles of the Communal Charter of Amiens
- 1215: Magna Carta
- 1215: Magna Carta (Latin and English)
- 1602: Coke, Preface to the 2nd Part of the Reports (Pamphlet)
- 1619: Laws enacted by the First General Assembly of Virginia
- 1620: The Mayflower Compact
- 1621: Constitution for the Council and Assembly in Virginia
- 1628: Petition of Right
- 1629: Agreement of the Massachusetts Bay Company
- 1637: Providence Agreement
- 1638: Act for Church Liberties (Maryland)
- 1638: Act for the Liberties of the People (Maryland)
- 1639: Fundamental Orders of Connecticut
- 1640/1: The Triennial Act
- 1641: Massachusetts Body of Liberties
- 1641: The Act for the Abolition of the Court of Star Chamber
- 1641: The Act for the Abolition of the Court of High Commission
- 1641: The Tonnage and Poundage Act
- 1642: Organization of the Government of Rhode Island
- 1642: Propositions made by Parliament and Charles I’s Answer
- 1644: Williams, Bloody Tenet, of Persecution (Letter)
- 1647: Acts and Orders (Rhode Island)
- 1647: Laws and Liberties of Massachusetts
- 1647: The Agreement of the People, as presented to the Council of the Army
- 1647: The Putney Debates
- 1648/9: The Agreement of the People
- 1649: A Declaration of Parliament
- 1649: Ball, Rule of a Free-Born People (Pamphlet)
- 1649: Maryland Toleration Act
- 1649: Rous, Lawfulness of Obeying the Present Government (Pamphlet)
- 1658: Coke, Prohibitions del Roy (Pamphlet)
- 1660: Milton, A Free Commonwealth (Pamphlet)
- 1661: Act of the General Court (of Mass.)
- 1675: Shaftesbury, Letter from a Person of Quality (Pamphlet)
- 1675: Shaftesbury, Speech in Parliament (Pamphlet)
- 1679: Habeas Corpus Act
- 1682: Act for Freedom of Conscience (Penn.)
- 1682: Charter of the Liberties and Frame of Government of Pennsylvania
- 1683: Charter of Liberties and Privileges (New York)
- 1689: English Bill of Rights
- 1692: Shower, Reasons for a New Bill of Rights (Pamphlet)
- 1701: Pennsylvania Charter of Liberties
- 1736: Brief Narrative of the Trial of Peter Zenger
- 1744: Williams, Rights and Liberties of Protestants (Sermon)
- 1763: Otis, Rights of British Colonies Asserted (Pamphlet)
- 1765: Resolutions of the Stamp Act Congress
- 1766: Mayhew, The Snare Broken (Sermon)
- 1774: Declaration and Resolves of the 1st Continental Congress
- 1776: Declaration of Independence (various drafts)
- 1776: Hutchinson, Strictures upon the Declaration of Independence
- 1776: Paine, Common Sense (Pamphlet)
- 1776: Virginia Declaration of Rights
- 1776: Witherspoon, Dominion of Providence over the Passions of Men (Sermon)
- 1778: Articles of Confederation
- 1785: Madison, Memorial and Remonstrance against Religious Assessments
- 1786: Jefferson, Virginia Bill Establishing Religious Freedom
- 1787: Brutus, Essay II (Pamphlet)
- 1787: Brutus, Essay V (Pamphlet)
- 1787: Brutus, Letter I (Pamphlet)
- 1787: Centinel, Letter I (Pamphlet)
- 1787: Jay, Address to the People of N.Y. (Pamphlet)
- 1787: Letters from the Federal Farmer, Letter No. III
- 1787: Letters from the Federal Farmer, No. VII (Pamphlet)
- 1787: Madison’s Notes of Debates in the Federal Convention
- 1787: Mason: Objections to the Proposed Constitution (Letter)
- 1787: Northwest Ordinance
- 1787: P. Webster, The Weakness of Brutus (Pamphlet)
- 1787: Ramsay, Address to the Freemen of Sth. Carolina (Speech)
- 1787: Selections from the Federalist (Pamphlets)
- 1787: US Constitution
- 1787: Virginia and New Jersey Plans
- 1787: Wilson, Address to the People of Philadelphia (Speech)
- 1788: Amendments recommended by the Several State Conventions
- 1789: French Declaration of the Rights of Man
- 1789: Madison, Speech Introducing Proposed Amendments to the Constitution
- 1790: Hamilton, First Report on Public Credit
- 1790: Jefferson, Memorandum on the Compromise of 1790
- 1790: Price, Discourse on the Love of Our Country (Sermon)
- 1791: Hamilton, Opinion as to the Constitutionality of the Bank of the US
- 1791: Jefferson, Opinion against the Constitutionality of a National Bank
- 1791: Madison, Speech on the Bank Bill
- 1791: US Bill of Rights (1st 10 Amendments) - with commentary
- 1793: French Republic Constitution of 1793
- 1793: Helvidius (Madison), No. 1 (Pamphlet)
- 1793: Pacificus (Hamilton), No. 1 (Pamphlet)
- 1796: George Washington’s “Farewell Address” (Speech)
- 1798-1992: US Bill of Rights Amendments (XI-XXVII)
- 1798: Alien and Sedition Acts
- 1798: Counter-resolutions of Other States
- 1798: Kentucky Resolutions
- 1798: Kentucky Resolutions (Jefferson’s Draft)
- 1798: Virginia Resolutions
- 1799: Report of the Virginia House of Delegates
- 1801: Jefferson, 1st Annual Message
- 1801: Jefferson, 1st Inaugural Address
- 1802: Jefferson, Letter to the Danbury Baptist Association (Letter)
- 1830: French Charter of 1830
- 1863: Emancipation Proclamation
- 1863: The Gettysburg Address
- 1865: U.S. Constitution, Thirteenth Amendment
- Pocket Guide to Political and Civic Rights