the crown, provoked the whole clergy and ecclesiastical state against him; and we know how potent in those days the clergy were in state affairs. Also, that, after one battle fought wherein Harold was slain, he went to London, was received by the Londoners, and solemnly Inaugurated king, as unto whom, by his own saying, the kingdom was by God's providence appointed, and, by vertue of a gift from his lord and cousin King Edward the glorious, granted; so that, after that battle, the remainder of the war was dispatched by English forces and leaders. But suppose he did come in a conqueror; yet he did not establish the kingdom on these terms, but on the old laws, which he retained and authorised for himself, and his successors to govern by. Indeed, after his settlement in the kingdom, some Norman customs he brought in, and to gratify his soldiers dispossessed many English of their estates, dealing in it too much like a conqueror; but the trial by twelve men, and other fundamentals of government, wherein the English freedom consists, he left untouched, which have remained till this day. On the same title, he claimed and was inaugurated, was he king, which was a title of rightful succession to Edward: Therefore he was indeed king, not as conqueror, but as Edward's successor; and on the same right, as he and his predecessors held the crown. As also, by the grant of the former laws, and form of government, he did equivalently put himself and successors into the state of legal monarchs; and, in that tenure, have all the kings of this land held the crown till this day; when these men would rake up, and put a title of conquest upon them, which never was claimed or made use of by him, who is the first root of their succession.

SECT. IV.

ANOTHER reason, which they produce, is the successive nature of this monarchy; for, with them, to be elective and limited, and to be successive and absolute, are equipollent; they conceive it im possible, that a government should be hereditary, and not absolute. But I have enough made it appear, Part I. Chap. ii. Sect. 6. That succession doth not prove a monarchy absolute from limitation, though it proves its absolution from interruption and discontinuance, during the being of that succession to which it is defined. And that, which they object, that our kings are actually so, before they take the oath of governing by law, and so they would be, did they never take that oath. Wherefore it is no limitation of their royal power, is there also answered in the next section, and that so fully, that no more need be said. The same law, which gives the king his crown immediately upon the decease of his predecessor, conveys it to him with the same determinations and prerogatives annexed, with which his progenitors enjoyed it; so that, he entering on that original right, his subjects are bound to yield obedience, before they take any oath; and he is bound to the laws of the monarchy, before he actually renews the bond by any personal oath. There is yet another argument usually brought to this purpose, taken from the oath of allegiance; but of that I shall have occasion to speak hereafter.

CHAP. II.

Supposing it to be in the platform limited, wherein, and how fur forth, is it limited and defined?

I CONCEIVE it fundamentally limited in five particulars:

First, In the whole latitude of the nomothetical power; so that their power extends not to establish any act, which hath the being and state of a law of the land; nor give an authentick sense to any law of a doubtful and controverted meaning, solely and by themselves, but together with the concurrent authority of the two other estates in parliament.

Secondly, In the governing power there is a confinement to the fundamental common laws, and to the superstructive statute laws, by the former concurrence of powers enacted, as to the rule of all their acts and executions.

Thirdly, In the power of constituting officers and means of govern. ing; not in the choice of persons, for that is intrusted to his judgment, for aught I know, but in the constitution of courts of judicature; for, as he cannot judge by himself, or officers, but in courts of justice, so those courts of justice must have a constitution by a concurrence of the three estates; they must have the same power to constitute them, as the laws which are dispensed in them.

Fourthly, In the very succession; for tho' succession has been brought as a medium to prove the absoluteness of this government, yet, if it be more thoroughly considered, it is rather a proof of the contrary; and every one, who is a successive monarch, is so far limited in his power, that he cannot leave it to whom he pleases, but to whom the fundamental law concerning that succession hath de signed it. And herein, though our monarchy be not so limited, as that of France is said to be, where the king cannot leave it to his daughter, but to his heir male, yet restrained it is; so that, should he affect another more, or judge another fitter to succeed, yet he cannot please himself in this, but is limited to the next heir born, not adopted, nor denominated; which was the case betwixt Queen Mary and the Lady Jane.

Lastly, In point of revenue; wherein their power extendeth not to their subjects estates, by taxes and impositions to make their own what they please, as hath been acknowledged by Magna Charta, and lately by the Petition of Right, the case of ship-money, conduct. money, &c. nor, as I conceive, to make an alienation of any lands, or other revenues annexed by law to the crown. I meddle not with

personal limitations, whereby kings, as well as private men, may limit themselves by promise and covenant, which, being particular, bind only themselves; but with those which are radical, and have continued, during the whole current of succession, from unknown times. Other limitations, it is likely, may be produced by those who are skilful in the laws; but I believe they will be such, as are reducible to some of these, which I take to be the principal and

most apparent limitations of this monarchy, and are a most convincing introduction to prove my assertion in the former chapter, "That this monarchy, in the very mould and frame of it, is of a limited 'constitution.'

CHAP. III.

Whether it be of a simple, or mixed constitution?

SECT. I.

WHEN the government is simple, when mixed; also where the mix ture must be, which denominates a mixed government, is explained, Part I. Chap. iii. Now I conceive it a clear and undoubted truth, that the authority of this land is of a compounded and mixed nature; in the very root and constitution thereof; and my judgment is established on these grounds:

First, It is acknowledged to be a monarchy mixed with aristo cracy in the house of peers, and democracy in the house of commons. Now (as before was made appear, in the first part) it is no mixture, which is not in the root and supremacy of power; for, though it have a subordination of inferior officers, and though the powers inferior be seated in a mixed subject, yet that makes it not a mixed government, for it is compatible to the simplest in the world to have subordinate mixtures.

Secondly, That monarchy, where the legislative power is in all three, is, in the very root and essence of it, compounded and mixed of those three; for that is the height of power, to which the other parts are subsequent and subservient: so that, where this resideth in a mixed subject, that is, in three distinct concurrent estates, the consent and concourse of all most free, and none depending on the will of the other, that monarchy is, in the most proper sense, and in the very model of it, of a mixed constitution. But such is the state of this monarchy, as appears in the former question, and is selfapparent.

Thirdly, That monarchy, in which three estates are constituted, to the end that the power of one should moderate and restrain from excess the power of the other, is mixed in the root and essence of it; but such is this, as is confessed in the answer to the said propositions. The truth of the major will appear, if we consider how many ways provision may be made, in a political frame, to remedy and restrain the excesses of monarchy. I can imagine but three ways: First, By constituting a legal power above it, that it may be regulated thereby, as by an over-ruling power. Thus we must not conceive of our two houses of parliament, as if they could remedy the exorbitances of the prince by an authority superior to his; for this were to subordinate him to the two houses, to set a su perior above the sovereign, that is, to destroy the being of his mo. narchical power. Secondly, by an original conveyance to him of a limited and legal power, so that beyond it he can do no potestative act; yet constituting no formal legal power to refrain, or redress

his possible exorbitances; here is limitation without mixture of another constituted power. As the former of these overthrows the power of the sovereign, so this makes no provision for the indemnity of the people. Thirdly, now the never-enough-to-be-admired wisdom of the architects and contrivers of the frame of government in this realm (whoever they were) have found a third way, by which they have conserved the sovereignty of the prince; and also made an excellent provision for the people's freedom, by constituting two estates of men, who are for their condition subjects, and yet have that interest in the government, that they can both moderate and redress the excesses and illegalities of the royal power, which (I say) cannot be done but by a mixture. that is, by putting into their hands a power to meddle in acts of the highest function of government; a power not depending on his will, but radically their own, and so sufficient to moderate the sovereign's power.

SECT. II.

Now what can reasonably be said in opposition to these grounds, proving a fundamental mixture, I cannot devise. Neither indeed is a mixture in the government denied by the greatest patrons of ir resistibility; only such a mixture they would fain make it, which might have no power of positive resistance. I will therefore set down what they probably may or do object to this purpose, and will shew the invalidity thereof.

Objection 1. This mixture seems not to be of distinct powers, but of a power and a council; authority in the prince to give power to acts, and counsel in the two houses to advise and propose wholsome acts; as if the royal power alone did give life to the law; only he is defined in this power, that he cannot animate any act to the being of a law, but such as is proposed unto him by this great and legislative council of parliament, Sol. This were probable, supposing the parliament were only in the nature of a council; but we know it is also a court, the 'high court of parliament.' Now it is evident that a court is the seat and subject of authority and power, and not barely of counsel and advice.

Obj. 2. The two houses, together with the king, are the supreme court of the kingdom; but, taken divisely from the king, it is no court, and conseqnently hath no power. Sol. Suppose them no intire court divided from the king, yet they are two estates of the three which make up the supreme court; so that they have a power and authority, though not complete and sufficing to perfect an act, without the concourse of the third: for it appears by the acts of that court, that every of the three estates hath a legislative power in it; every act being enacted by the king's most excellent majesty, and by the authority of the lords and commons assembled in parlia ment.

SECT. III.

Objection 3. THEY have an authority, but in subordination to the king, and derived from him, as his parliament. Indeed, this is a

main question, and hath very weighty arguments on both sides, Whether the authority of both the houses be a subordinate au thority, and derived from the king as its original?' Three reasons seem strong for the affirmative: First, Because it is his parliament, so called and acknowledged: If his court, then the power whereby they are a court in his power, derived from him, as the power of other courts is. Secondly, Because he hath the power of calling and dissolving it. Thirdly, Because he is acknowledged in the oaths of allegiance and supremacy to be the head, and of supreme authority in the kingdom. d all subject to him.

And whereas some make answer, That he is singulis major, but universis minor, so the answerer to Doctor Fern,* I wonder that the proposition of the observator, that the king is universis minor, should be so much exploded. Every member seorsim is a subject, but all collectim in their houses are not: and he says simply, The houses are co-ordinate to the king, not subordinate; that the lords stile comites, or peers, implies in parliament a co-ordinative society with his majesty in the government. I conceive this answerer to avoid one extream falls on another; for this is a very overthrow of all monarchy, and to reduce all government to democracy: for look, where the apex potestatis is, there is the government. Also it is against common reason: for the king, Is he not king of the kingdom? And what is the kingdom but all united? All the particulars knit together in one body politick? So that, if he be king of the the kingdom, he is universis major too; for the king is major, and the kingdom is the united universe of the people. Thus those expressions are some of them false, some though secundum quid true; yet spoken simply, aud in that manner, are scandalous, and incom patible to monarchy. Thus you see what may be said on the one side, to prove the king to be the original of all power, even of that which is in the houses of parliament assembled.

On the other side are as weighty arguments to prove the contrary, viz. That the two houses authority is not dependent, nor derived from the royal power. First, The authority of the houses, being legislative, is the supreme, and so cannot be derived. Three con current powers producing one supreme act, as con-cause, joint causes of the same highest effect, cannot have a subordination among themselves in respect of that causality; it not being imagi. nable how a power can cause the supreme effect, and yet be a subordinate and derived power. Secondly, The end of constituting these two estates being the limiting and preventing the excesses of the third, their power must not be totally dependent, and derived from the third, for then it were unsuitable for the end for which it was ordained for to limit an agent, by a power subordinate and depending on himself, is all one as to leave him at large without any limitation at all. Thirdly, That, which hath been spoken of a mixed monarchy, doth fully prove, that the two other powers which concur with the monarch, to constitute the mixture, must not be

Treatise intituled, A fuller Answer to Dr. Fern.