appeal, 1 Pet. ii. 23. and so must we, notwithstanding our appeal, 1 Pet. iv. 19. for he did so for our example. If an appeal to God, or a censure in the judgment of the condemned, might give him power of resistance, none would be guilty, or submit to the magistrate's censure, any further than they please. I desire those authors, before they settle their judgment in such grounds (which, I fear, will bring too much scandal) to weigh these particulars: First, their opinion takes away from the magistrate the chief part of God's ordinance, scil. power of definitive judgment of laws and persons, who are the good, and who the bad, to be held so in civil proceedings. Secondly, They justify the conscience of papists, hereticks, and grossest malefactors, to resist the magistrate, in case they be persuaded their cause be good. Thirdly, they draw men off from the commands of patience under persecution, and conforming to Christ and his Apostles, in their patient enduring without verbal, or real opposition, though Christ could not have wanted power to have done it, as he tells Peter. Fourthly, They deprive the primitive and modern martyrs of the glory of suffering, imputing it either to their ignorance, or disability. Fifthly, It is a wonder, that since, in Christ's and his Apostles time, there was so much use of this power of resistance, they would by no express word shew the christians this liberty, but condemn resistance so severely. Sixthly, There is, in the case of the parliament now taking up arms, no need of these offensive grounds, religion being now a part of our national law, and cannot suffer, but the law must suffer with it. SECT. II. 1. When arms ought not to be assumed. Now to the proposed question I answer, First, Negatively, scil. 1. It ought not to be done against all illegal proceedings, but such which are subversive and unsufferable. Secondly, Not publick resistance, but in excesses inducing publick evils. For to repel private injuries of the highest nature with publick hazard and disturbance, will not quit cost, unless in a private case the common liberty be struck at. Thirdly, not when the government is actually subverted, and a new form (though never so injuriously) set up, and the people already engaged in an oath of absolute subjection; for the remedy comes too late, and the establishment of the new makes the former irrevocable by any justifiable power, within the compass of that oath of GOD: This was the case of the Senate of Rome, in St. Paul's time. Secondly, affirmatively: I conceive three cases, when the other estates may lawfully assume the force of the kingdom, the king not joining, or dissenting, though the same be by law commit. ted to him: First, When there is invasion actually made, or immi. nently feared, by a foreign power. Secondly, When by an intestine faction the laws and frame of government are secretly undermined, or openly assaulted: In both these cases, the being of the govern ment being endangered, their trust binds, as to assist the king in se curing, so to secure it by themselves, the king refusing. In extreme necessities, the liberty of voices cannot take place, neither ought a negative voice to hinder in this exigence, there being no freedom of deliberation and choice, when the question is about the last end: their assuming the sword, in these cases, is for the king, whose being (as king) depends on the being of the kingdom; and, being in terpretatively his act, is no disparagement of his prerogative. Thirdly, in case the fundamental rights of either of the three estates be invaded by one or both the rest, the wronged may lawfully assume force for its own defence: because else it were not free, but dependent on the pleasure of the other. Also the suppression of either of them, or the diminishing of their fundamental rights, carries with it the dissolution of the government: And therefore those grounds, which justify force to preserve its being, allow this case, which is a direct innovation of its being and frame. CHAP. VII. Where the Legal Power of Final Judging in these cases doth reside, in case the three Estates differ about the same? SECT. I. The Question stated. Determination of the Question. In this question (for our more distinct proceeding) some things are necessarily to be observed: First, That we meddle not here with the judicature of questions of an inferior nature, viz. Such as are betwixt subject and subject, or the king and a subject, in a matter of particular right, which may be decided another way, without detriment of the publick frame, or diminution of the privileges of either of the three estates. Secondly, difference is to be made even in the questions of utmost danger. First, For it may be alledged to be either from without, by invasion of foreign enemies, or by a confederacy of intestine subverters, in which neither of the three estates are alledged to be interested, and sot he case may be judged without relation to either of them, or detriment to their pri vileges. Here I conceive a greater latitude of power may be given to some to judge without the other; for it infers not a subordinating of any of the three to the other. Secondly, Or else it may be alledg ed by one or two of the estates against the other, that, not contenting itself with the powers allowed to it by the laws of the govern. ment, it seeks to swallow up, or intrench on the privileges of the other, either by immediate endeavours, or else by protecting and interesting itself in the subversive plots of other men. Thirdly, In this case we must also distinguish betwixt, First, Authority of rais. ing forces for defence against such subversion, being known and evident: Secondly, and authority of judging and final determining, that the accused estate is guilty of such design and endeavour of sub. version, when it is denied and protested against. This last is the particular in this question to be considered; not, whether the people are bound to obey the authority of two, or one of the legislative es tates, in resisting the subversive estates of the other, being apparent and self-evident? Which I take in this treatise to be clear. But, when such plea of subversion is more obscure and questionable, which of the three estates hath the power of ultimate and supreme judicature, by vote or sentence to determine it against the other? So that the people are bound to rest in that determination, and accordingly to give their assistance, eo nomine, because it is by such power so noted and declared. For my part, in so great a cause, if my earnest desire of publick good and peace may justify me to deliver my mind, I will prescribe to the very question; for it includes a solecism in government of a mixed temperature: to demand which estate may challenge this power of final determination of fundamental controversies arising betwixt them, is to demand which of them shall be absolute. For I conceive, that, in the first part hereof, I have made it good, that this final utmost controversy, arising betwixt the three legislative estates, can have no legal constituted judge in a mixed government: For, in such difference, he who affirms, that the people are bound to follow the judgment of the king against that of the parliament, destroys the mixture into absoluteness. And he who affirms, that they are bound to cleave to the judgment of the two houses against that of the king, resolves the monarchy into an aristocracy, or democracy, according as he places this final judgment. Whereas I take it to be an evident truth, that, in a mixed government, no power is to bo attributed to either estate, which directly, or by necessary con sequence, destroys the liberty of the other. SECT. II. Dissolution of the Arguments, placing it in the King; and of the arguments placing it in the two Houses. YET it is strange to see how, in this epidemical division of the kingdom, the abettors of both parts claim this unconcessible judgment. But let us leave both sides, pleading for that which we can grant neither, and weigh the strength of their arguments. First, Dr. Fern lays down two reasons, why this final judgment should belong to the king: I. Monarchy, says he, Sect. V. settles the chief power and final judgment in one. This position of his can be absolutely true no where, but in absolute monarchies: And, in effect, his book knows no other than absolute government. 2. See ing some one must be trusted in every state, 'It is reason, says he, Sect. V. the highest and final trust should be in the highest and su preme power.' I presume by final trust, he means the trust of determining these supreme and final disagreements: And accordingly I answer, it is not necessary that any one be trusted with a binding power of judicature in these cases; for, by the foundations of this government, none is, yea, none can be trusted with it; for to in tend a mixed government, and yet to settle the last resolution of all judgment in one, is to contradict their very intention. Neither in a constituted government must we dispose of powers according to the guess of our reason, for men's apprehensions are various: the doctor thinks this power fittest for the king; his answers judge it fittest for the two houses, and give their reasons for it too. Powers must there reside, where they are de facto by the architects of a govern. ment placed. He who can bring a fundamental act stating this power in any, says something to the matter; but, to give our conjectures where it should be, is but to provide fuel for contention. On the contrary, the author of that which is called,' A full answer to the doctor,' hath two main assertions placing this judgment in the two houses. 1. The final and casting result of this state's judgment concerning what these laws, dangers, and means of prevention are, resides in the two houses of parliament, says he, p. 10. 2. In this final resolution of the state's judgment, the people are to rest, ibidem, page 14. Good Lord! What extreme opposition is between these two sorts of men? If the maintenance of these extreams be the ground of this war, then our kingdom is miserable, and our government lost, which side soever overcome: For I have, more than once, made it good, that these assertions are destructive on both sides. But I am rather persuaded, that these officious propugners overdo their work, and give more to them whose cause they plead, than they ever intended to assume: Nay, rather give to every one their due, give no power to one of these three to crush, and undo the other at pleasure. But why doth this answer give all that to the two houses, which heretofore they would not suffer, when the judges in the case of ship money had given it to the king? Sure, when they denied it to him, they did not intend it to themselves. 1. He tells us, In them resides the reason of the state: And that the same reason and judgment of the state, which first gave this government its being and constitution; therefore all the people are to be led by it, and submit to it as their publick reason and judgment. I answer: If by state he mean the whole kingdom, I say, the reason of the two houses, divided from the king, is not the reason of the kingdom, for it is not the king's reason, who is the head and chief in the kingdom. If by state be meant the people, then it must be granted, that, as far forth as they represent them, their reason is to be accounted the reason of the kingdom, and doth bind so far forth as the publick reason of the kingdom can bind, after they have restrained their reason and will to a condition of subjection; so that, put the case it be the reason of the state, yet not the same which gave this government its being; for then it was the reason of a state, yet free, and to use their reason and judgment in ordaining a government. But now the reason of state is bound by oath to a government, and not at liberty to resolve again; or to assume a supreme power of judging, destructive to the frame of government they have established, and restrained themselves unto. Their reason is ours, so far as they are an ordained representative body: But I have be VOL. IX. Bb fore demonstrated, that, in this frame, the houses could not be ordained a legal tribunal to pass judgment in the last case: For then the architects, by giving them that judicature, had subordinated the king to them, and so had constituted no monarchy. 2. He argues, the parliament being the court of supreme judicature, and the king's great and highest council, therefore that is not to be denied to it, which inferior courts ordinarily have power to do, viz. to judge matters of right between the king and subject, yea, in the highest case of all: The king's power to tax the subject in case of danger, and his being sole judge of that danger, was brought to cognisance, and passed by the judges in the exchequer. I answer, 1. There is not the same reason betwixt the parliament and other courts. In these the king is judge, the judges being de puted by him, and judging by his authority; so that, if any of his rights be tried before them, it is his own judgment, and he judges himself; and therefore it is fit he should be bound by his own sentence: But, in parliament, the king and people are judges, and not by an authority derived from him, but originally invested in themselves. So that, when the two estates judge without him in any case not prejudged by him, it cannot be called his judgment (as that of the other courts, being done by his authority), and, if he be bound by any judgment of the two estates without him, he is bound by an external power which is not his own; that is, he is subordinated to another power in the state where he is supreme, which is contradictory. 2. In other courts, if any case of right be judged betwixt him and the subject, they are cases of particular rights, which diminish not royalty, if determined against him: Or, if they pass cases of general right (as they did in that of shipmoney) it is but declaratively to shew what is by law due to one and the other; yet their judgment is revocable, and liable to a repeal by a superior court, as that was by parliament. But, if the king's prerogatives should be subjected to the judgment of the two estates, the king dissenting, then he should be subject to a sentence in the highest court, and so irremediable; a judicatory should be set up to determine of his highest rights without him, from which he could have no remedy. Thus main causes may be al ledged, why, though other courts do judge his rights, yet the two estates in parliament (without him) cannot; and it is from no defect in their power, but rather from the eminency of it, that they cannot. If one deputed by common consent of three doth, by the power they have given them, determine controversies between those three, it is not for either of them to challenge right to judge those cases, because one who is inferior to them doth it. Indeed if the power of the two houses were a deputed power, as the power of other courts is, this argument were of good strength; but, they being concurrents in a supreme court by a power originally their own, I conceive it hard to put the power of final judgment in all controversies betwixt him and them exclusively or solely into their hands. |