The tryal of Sir Henry Vane, Kt. at the Kings Bench, Westminster, June the 2d. and 6th, 1662 together with what he intended to have spoken the day of his sentence (June 11) for arrest of judgment (had he not been interrupted and over-ruled by the court) and his bill of exceptions : with other occasional speeches, &c. : also his speech and prayer, &c. on the scaffold.
Vane, Henry, Sir, 1612?-1662, defendant., England and Wales. Court of King's Bench.
Page  97

The Peoples Cause Stated.

HE in whom is the Right of Soveraign, and to give Law, is ei∣ther so of himself, or in the Right of another, that may de∣rive the same unto him; which shews that there are two sorts of Soveraings.

A Soveraign in the first sense, none is nor can be, but God, who is of himself most absolute. And he that is first of all others in the second sence, is the Man Christ Jesus, to whom the Power of So∣veraign, in the Right of the Father is committed, over all the Works of Gods hands. Christ exercised the same in the capacity of David's Root from before the beginning of the World. He owne; himself thus to be, long before he became David's Seed; This his being in Spirit, or hidden being, even as a Creature, the first of all Creatures in personal Union with the Word, David saw and ac∣knowledged, Psal. 110. 1. Thus Christ may be called God's Lieu∣tenant Soveraign, or General Vicegerent of his Supremacy over all in Heaven and in Earth. He therefore is the true Universal King and Root of all Soveraign and just Governing Power, whe∣ther in Heaven or on Earth.

His Soveraignty is unquestionable and unaccountable, because of the Perfection of his Person, carrying in it an aptitude and suffi∣ciency to Govern, without possibility of Error or Defect of any kind. Soveraign and Governing Power doth necessarily relate to Subjects, that are to be the Ruled, and Subjects capable of such Government. Therefore when God himself purposes within him∣self, to be Supream Legislator and Governour, he doth withal pur∣pose the Being and Creation of both Worlds, as the Subject mat∣ter of his Kingdom. He propounds to Govern his Subjects by and with their own consent and good liking; or, without and against it, in the way of his revenging Justice; Governing by Laws, clear∣ly stating and ascertaining the Duty or the Offence, as also the Re∣wards and Penalties.

Herein Just Government consists, or the Justice of Government; for he that Rules over others, must be Just; and indeed should be seen to be so in all his Commands: so seen, as to render the Con∣sciences of the Ruled, and those whose duty it is to Obey, inexcu∣sable before God and before Men, if they Dissent or Resist.

Page  98 Inexcusable they are before God, because the matter Commanded is the matter of God's Law, & therefore just to be obeyed. They are also Inexcusable before Men, that which is required of them being generally acknowledged and affirmed (by those in whom the com∣mon consent of the Subjects is intrusted to that end) to be Just, and Reasonable, and therefore to be Obeyed. For the end of all Government, being for the Good and Welfare, and not for the De∣struction of the Ruled; God who is the Institutor of Government, as he is pleased to Ordain the Office of Governors, intrusting them with Power to command the Just and Reasonable Things, which his own Law Commands, that carry their own evidence to com∣mon Reason and Sense, at least, that do not evidently contradict it, so he grants a Liberty to the Subjects, or those that by him are put under the Rule, to refuse all such Commands as are contrary to his Law, or to the judgement of common Reason and Sense, whose trial he allows, by way of assent or dissent, before the Com∣mands of the Ruler shall be Binding or put in Execution; and this in a Co-ordinacy of Power with Just Government, and as the due Ballance thereof. The Original Impressions of Just Laws are in Mans Nature and very Constitution of Being. Man hath the Law in his Mind, (or the Superior and Intellectual part of him) con∣vincing and bringing that into obedience and subjection to the Law of God, in Christ himself. He hath also that which is a Law in his Members that are on the Earth, (or his earthly and sensual part) whose Power is Co-ordinate with the other, but such, that if it be not gained into a Harmony and Conjunction with its Head, the Spirit or Mind of man, hath ability to let and hinder his Mind or Ruling part, from performing and putting in execution, that which is good, just, fit, and to be acknowledged as the righte∣ous dictates of the Mind, which ought to be the Ruling Power, or Law to the Man. So in the outward Government over Man, the secondary or co-ordinate Power, concurring with that which is the chief ruling Power, is essential to Just Government; and is acknow∣ledged to be so, by the Fundamental Constitution of the Govern∣ment of England, as well as in the Legal Being and Constitution of Parliaments, whether that which hath been usual and ordinary, according to the Common Law; or that which of late hath been Extraordinary, by express Statute, for the continuance of the Par∣liament, 17. Car. until dissolved by Act of Parliament.

For together with the Legal Being which is given to Regal Page  99 Power and the Prerogative of the Crown, there is the Legal Pow∣er and Being reserved also unto that Body, which is the Peoples or Kingdoms Representative, who are the Hands wherein that which is called Power Politick is seated, and are intrusted with giving or with holding the common Consent of the whole Nation, accord∣ing to the best of their Understandings, in all matters coming be∣fore them, and are to keep this Liberty Inviolate and Entire, a∣gainst all Invasions or Encroachments upon it, whatsoever.

This second Power in the very Writ of Summons for calling a Parliament, is declared to be of that Nature, that what the first doth without obtaining the Consent and Approbation of the se∣cond, in Parliament, is not binding but ineffectual. And when the Representative Body of the Kingdom, (in and with whom, this Power is intrusted, as the Due and Legal Ballance and Boundary to the Regal Power, set and fixed by the Fundamental Constituti∣on) is made a standing Court, and of that Continuance, as not to be dissolvable but by its own consent; during such its continuance, it hath right to preserve it self from all violent and undue Disso∣lution, and to maintain and defend its own Just Priviledges, a chief of which is, to binde or loose the People, in all matters good or hurtful to them, according to their best Judgement and discretion.

In the exercise of this their Trust, they are Indemnified by Law, and no hurt ought to come unto them; that Governing Pow∣er, which is originally in God, and slowes at first from him, as the sole and proper Fountain thereof, is brought into exercise amongst men, upon a differing and distinct account.

First, As it is a Trust and Right derived conditionally from God to his Officers and Ministers, (which therefore may be lost) who being called by him, and in the course of his Providence, to the exercise of it, are to hold it of him the Universal King, and to own themselves in the exercise thereof, as his Vicegerents, to cut off by the Sword of Justice evil-doers; and to be a Protection and en∣couragement to them that do well. But because it is part of God's Call of any person to this high Trust, to bring him into the posses∣sion and free Exercise thereof, by the common consent of the Body of the People, where such Soveraign Power is set up, unless they have forfeited this Liberty. Therefore,

Secondly, God doth allow and confer by the very Law of Na∣ture, upon the Community or Body of the People (that are re∣lated Page  100 to, and concerned in the right of Government, placed over them) the Liberty by their common Vote or Suffrage duely given, to be Assenters or Dissenters thereunto, and to Affirm and make Stable, or Disallow and render Ineffectual, what shall apparently be found by them to be for the good or hurt of that Society, whose welfare next under the justice of God's Commands and his Glory, is the Supream Law, and very end of all Subordinate governing Power.

Soveraign Power then comes from God, as its proper Root, but the restraint or enlargement of it, in its Execution over such or such a Body, is sounded in the common consent of that Body.

The Office of chief Ruler, or Head over any State, Common∣wealth, or Kingdom, hath the Right of due Obedience from the People inseparably annexed to it. It is an Office, not onely of Di∣vine Institution, but for the Safety and Protection of the whole Body or Community, and therefore justly and necessarily draws to it, and engages their Subjection.

This Office of the Soveraign, according to the Laws, and Funda∣mental Constitutions of the Government of England, is ministred by the King in a twofold Capacity, as his Will and personal Com∣mand is in Conjunction and Agreement with his People in Parlia∣ment, (during the Session thereof) or as it is in Conjunction and Agreement with the Law, the Parliament not Sitting. But his Will and Personal Command single, in dis-junction and disagree▪ from the Parliament or the Laws, hath not the force of a Law, saith Fortescue, and gives the Reason of it, Because this is a limit∣ted Monarchy, where the King's Power (as to the exercise of it) is onely a Power Politick.

The Obedience then which from the Subject is due to the King, and which they are sworn to perform by the Oath of Alle∣giance, is to him, in the ministry of the Royal Office, accor∣ding to the reason and intent of the Fundamental Compact and Constitution, and according to his own Oath, which is to Govern by Law; that is, to Exercise his Rule or Royal commanding Pow∣er, in Conjunction and Agreement with the Parliament when sit∣ting, and in Conjunction, and Agreement with the Laws of the Land, they not sitting. To exercise his Power otherwise, is and hath been alwayes judged a grievance to the People, and a going against that which is the original Right and just Liberty of the Community, who are not to be bound to such personal Com∣mands Page  101 at will and pleasure, nor compelled to yield Obedience thereunto.

The contrary hereunto was the Principle at bottom of the Kings Cause, which he endeavoured to uphold and maintain, in order to decline and lay aside the Legal Restraints as aforesaid, which the Government of England by the Fundamental Constitution, is sub∣jected unto, as to the exercise and ministery of the Royal Office.

From the Observation and Experience which the Pople of En∣gland had, and made many years together, by their Representatives in Parliament, of a desire in the King to shake off these Legal Re∣straints in the Exercise of the Regal Power, and on their having tried the best wayes and means that occurred to their Understand∣ings, to prevent the same, and to secure to themselves the enjoy∣ment of their Just Rights and Liberty, they at last pitch'd upon the desiring from the King, the continuance of the sitting of the Parliament called, November 3d 1640, in such sort as is expressed in that Act, 17. Car. wherein it is provided, That it shall not be Discontinued or Dissolved, but by Act of Parliament.

This was judged by them, the greatest Security imaginable, for keeping the ministry of the Royal Office within its due Bounds; and for quieting the People in the enjoyment of their Rights. But experience hath shewed, that this yet could not be done without a War, the worst and last of Remedies. For although their Continu∣ance as the Representative Body of the Kingdom, with the Right to exercise the Power and Priviledges inherent in, and inseparable from that Supream Court and Chief Senate (whereof the King is Head, both making but one Person or Politick Body in Law) yet they themselves, as well as the King, were bound by the Fun∣damental Constitution or Compact, upon which the Government was at first built; containing the Condition upon which the King accepted of the Royal Office, and on which the People granted to him the Tribute of their Obedience and due Allegiance. This Condition, (as the Lawes and Experience declare) is, that the King shall exercise his Office of Rule over them accord∣ing to the Laws, as hath been shewed, and as he and his People shall from time to time agree in Common Council in Parliament, for that end assembled. In respect hereof, the Laws so made, are called the Concords or Agreements passed between the King and the Subject, in the 3d part of Cooks Institutes.

Page  102 These Agreements then are the Standard unto the Kings Rule and the Peoples Obedience, signifying the justice of his Com∣mands, and the dueness of their Allegiance.

But the case so happening, that this Conjunction and Agree∣ment which ought to be found between the personal Will of the King, and Representative Will of the Kingdom, failing, and these two Wills declaring themselves in Contrariety and Opposition, both of them becoming standing Powers, Co-ordinate and distinct parts of the Supremacy, as the two Channels wherein the Suprema∣cy is placed and appointed to run, as to its exercise, by the Funda∣mental Constitution; hence sprang the War, each asserting and endeavouring to defend and maintain their own part and right, which ought not to be kept up in dis-junction and contrariety, but in Unity and Agreement each with other. These two Parties with their Adherents, in this Case, may be according to the Law, Con∣trarients one towards another, as the Law affords an Example, in the Preamble to Cook's 4th Part of his Institutes (not properly Traytors) being co-ordinate Powers, parts of the Supremacy, that are the Heads to each Party; and by consequence have a right of making a War, as their last Appeal, if they cannot otherwise agree.

Being once entred thus into a state of War and actual Enmity, they do as it were become two Nations, and cease to be under the Obligations they were in before, for during this state of War and Enmity, the standing Laws (in a sort) cease, and a new way of Rule each Party Forms to himself and his Adherents, as may best consist for each of their Safeties and Preservations.

Upon this Dis-junction of the two Wills, in the Harmony and Agreement whereof, the Supremacy is placed, these following Queries do naturally arise;

First.

To which, or Whether of these by Law is the Allegiance required as due? Is it to be yeilded to the Personal Will of the King single, in dis∣junction from the Will of the Representative Body of the Kingdom, or to the Will of the People, in dis-junction from the Will of the King? Or is it to the Personal Will of the King, in conjunction with the Laws, though in opposition and contrariety to the Will of the Kingdoms Representative in Parliament Assembled? Or is it to the Will of the Kingdomes Re∣presentative, in conjunction with the Laws, though in opposition to the Personal Will of the King?

Page  103The Second Querie is,

In whose Judgement in this case are the People by Law to acquiesce, as to the declaring with whom the Laws are? Whether the Personal Judgement of the King single, or the Vote of the Senate, that is, the Kingdoms Representative Body?

The Third Querie is,

With whom will the Laws be found to go in this Case, so rare, unusu∣al, and never happening before, and who is the Proper and Competent Judge? Also, whether the Laws be not perfectly silent, as never sup∣posing such a Case possible to happen, by reason that the Power used by the one for Dissolving the other, never before suffered the Opposition to rise so high?

The Fourth Querie is,

Whether he, in this Case, that keeps his Station and place of Trust, wherein God and the Law did set him, with care to demean himself ac∣cording to the best of his Vnderstanding, agreeably to the Law and Customes of Parliament, and pursuant to their Votes and Directions, (so long as they sit and affirm themselves to be a Parliament) and uses his best endeavours in the exercise of that publick Trust, that no Detri∣ment in the general come unto the Common-wealth by the failer of Justice, and the necessary Protection due from Government, without any designing or intending the Subversion of the Constitution, but onely the securing more fully the Peoples Liberties and just Rights, from all fu∣ture Invasions and Oppressions, be not so far from deserving to be judged Criminal in respect of any Law of God or Man, that he ought rather to be affirmed One that hath done his Duty, even the next best that was left to him, or possible for him to do, in such a dark stormy season, and such difficult Circumstances?

As to the Right of the Cause it self, it ariseth out of the matter of Fact that hath happened, and by the Just and Wise Providence of God, hath been suffered to state it self, in the Contest between the Personal Will and declared Pleasure of the King, on the one Hand, and the publick Will or Vote of the People in Parliament, on the other, declaring it self either in Orders or Ordinances of both Houses, or in the single Act of the House of Commons, assert∣ing it self a Parliament, upon the Grounds of the Act, 17 Car. providing against its dissolution.

This will appear with the more evidence and certainty, by con∣sidering wherein either part had a wrong Cause, or did or might do that which was not their Duty; taking the measure of their Duty Page  104 from what as well the King as the Peoples Representative are ob∣liged unto, by the Fundamental Constitution of the Government, which binds them in each of their Capacities and distinct Exerci∣ses of their Trust, to intend and pursue the true good and welfare of the whole Body or Community as their End. This (in effect) is to detain the People in Obedience and Subjection to the Law of God, and to guide them in the wayes of Righteousness unto God's well-pleasing: and to avoid falling out or disagreeing about the Way or Means leading to that End.

Hence that party which in his or their actings was at the great∣est distance from, or opposition unto this end, and wilfully and un∣necessarily disagreed and divided from the other, in the Ways and Means that were most likely to attain this End; they were assured∣ly in the Fault, and had a Wrong Cause to mannage, under what ever Name of Face of Authority it was Headed and Upheld. And such a Wrong Cause was capable of being espoused and mannaged under the face of Authority, as might be pretended unto by either part. For as the King (insisting upon his Prerogative, and the binding force which his personal Will and Pleasure ought to have, though in distinction from, and opposition to his Parliament) might depart from the end of Government, answerable to his Trust, and yet urge his Right to be obeyed; So the publick Will of the Peo∣ple, exercised in and by the Vote of their Representative in Par∣liament, asserting it self to be of a binding force also, and to have the place of a Law, though in distinction from the King and Laws also, (as saith the King) whatever otherwise by them is preten∣ded, might also depart from the true end of Government, answer∣able to their Trust, and yet insist upon their Right to be Obeyed and submitted unto; and having Power in their hands, might un∣duely go about also to compel Obedience. It is not lawful either for King or Parliament to urge Authority and compel Obedience as of Right in any such Cases, where (according to the Law of Na∣ture) the People are at Liberty, and ought to have a Freedom from yeelding Obedience, as they are and ought to have when ever any would compel them to disobey God, or to do things that evi∣dently in the eye of Reason and common sense, are to their hurt and destruction. Such things Nature forbids the doing of, having for that very purpose, armed Man with the defensive Weapon of refusing to consent and obey, as that Priviledge, whereby Man is distinguished from a Beast; which, when he is deprived of, he is Page  105 made a Beast, and brought into a state of perfect Servitude and Bondage.

Such a state of Servitude and Bondage may by God's just Judge∣ment, be inflicted upon man for sin and the abuse of his Liberty, when by God restored. The Liberty which man was at first created in, is that Priviledge and Right which is allowed to him by the Law of Nature, of not being compelled under any pretence whatsoever to sin against God, or to go against the true good and welfare of his own Being; that is to say, of his inward or outward man, but in both these cases, to have and to use his just Liberty, to Dissent and refuse to Obey.

For this every man hath that in himself, which by God is made a proper and competent Judge. For, as to all sin against God, and the righteousness of his Law, the Light of Conscience, that is to say the Work of the Law, in and upon the Mind or inward Sense, and in conjunction with it, doth lighten every one that cometh in∣to the World, accusing or excusing, if it be but hearkened unto, and kept awake. And for all such actings, as tend to the ruine and destruction of man, in his outward and bodily concerns, and as he is the Object of Magistratical Power and Jurisdiction, e∣very man hath a Judgement of common Sense, or a way of discern∣ing and being sensible thereof, common to bruit Beasts, that take in their Knowledge by the door of their Senses, but is much height∣ned and enobled in man, by the personal union it is taken into, with his intellectual part, and intuitive way of discerning things, through the inward reflectings of the mind, compared with the Law of God. This inferiour Judgement in man, when it is conjoyned with, and confirmed by the Judgement of his Superiour part, is that which we call Rational, or the dictates of right Reason, that man hath a natural right to adhere unto, as the ordinary certain Rule, which is given him by God to walk by, and against which he ought not to be compelled, or be forced to depart from it, by the meer Will and Power of another, without better Evidence; that is, a higher, a greater, or more certain way of discerning. This there∣fore in Scripture is called, Man's Judgement, or Man's Day, in di∣stinction from the Lord's Judgement, and the Lord's Day. And this is that, in every individual man, which in the collective Body of the People, and meeting of Head and Members in Parliament, is called, The Supream Authority, and is the publick reason and will of the whole Kingdon; the going against which, is, in Nature as well as by the Law of Nations, an offence of the highest rank, Page  106 amongst men. For it must be presumed, that there is more of the Wisdom and Will of God in that publick Suffrage of the whole Nation, than of any private Person or lesser collective Body, what∣soever, not better quallified and principled. For Man is made in God's Image, or in a likeness, in Judgement and Will, unto God himself, according to the measure that in his nature he is propor∣tioned and made capable to be the receiver and bearer thereof. Therefore it is, that the resisting and opposing either of that Judge∣ment of Will, which is in it self Supream, and the Law to all o∣thers, (or which bears so much proportion and likeness to the Su∣pream Will, as is possible for a Society and community of Men a∣greeing together for that end, to contrive and set up for an admi∣nistration thereof unto them) is against the duty of any member of that Society, as well as it is against the duty of the Body of the whole Society, to oppose its Judgement and Will to that of the Supream Law-giver, their highest Soveraign, God himself.

The highest Judgement and Will, set up by God, for Angels and Men in their particular beings, to hold proportion with, and bear conformity unto, (in the capacity of Ruled, in relation to their chief Ruler) sinnes forth in the person of Christ, the engrafted Word. And when by the Agreement or common Consent of a Na∣tion or State, there is such a Constitution and Form of Administrati∣on pitched upon, as in a standing and ordinary way, may derive and conveigh the nearest and greatest likeness in humane Laws, or Acts of such a Constitution, unto the Judgement and Will of the Su∣pream Legislator, as the Rule and declared Duty for every one in that Society to observe; It is thereby, that Government, or Su∣pream Power comes to receive Being in a Nation or State, and is brought into exercise according to God's Ordinance, and Divine Institution. So then, it is not so much the Form of the Administra∣tion, as the thing Administred, wherein the good or evil of Go∣vernment doth consist; that is to say, a greater likeness or unlike∣ness unto Judgement and Will of the highest Being, in all the Acts or Laws, flowing from the Fundamental Constitution of the Go∣vernment.

Hence it is, that common Consent, lawfully and rightfully given by the Body of a Nation, and intrusted with Delegates of their own free choice, to be exercised by them, as their Representatives, (as well for the Welfare and good of the Body that trusts them, as to the Honour and Well-pleasing of God the Supream Legislator) is the Principle and Means, warranted by the Law of Nature and Page  107 Nations, to give Constitution and Admission to the exercise of Go∣vernment, and Supream Authority, over them and amongst them: Agreeable hereunto, we are to suppose, that our Ancestors in this Kingdom did proceed, when they constituted the Government thereof, in that form of Administration, which hath been derived to us, in the course and channel of our Customes and Laws; amongst which, the Law and Customes in and of the Parliaments, are to be accounted as chief. For,

Hereby First, The Directive or Legislative Power (having the Right to State and Give the Rule for the Governors Duty, and the Subjects Obedience) is continued in our Laws, which as well the King as People are under the Observation of; witness the Corona∣tion Oath, and the Oath of Allegiance.

Secondly, The Coercive or Executive Power is placed in one Person, under the Name and Style of a King, to be put forth not by his own, single, personal Command, but by the signification of his Will and Pleasure, as the Will of the whole State, in and by his Courts of Justice, and stated publick Counsels and Judicatures, agreed on for that purpose, between him and his People, in their Parliamentary Assemblies.

The Will of the whole State, thus signified, the Law it self pre∣fers before the personal Will of the King, in distinction from the Law, and makes the one binding, the other not. So that the publick Will of the State, (signified and declared by the publick Suffrage and Vote of the People or Kingdom in Parliament Assembled) is a Legal and Warrantable ground for the Subjects Obedience, in the things commanded by it, for the good and welfare of the whole Body, according to the best Understanding of such their Represen∣tative Body, by it put forth, during the time of its sitting.

The Body with whom the Delegated Vote and publick Suffrage of the whole Nation is Intrusted, being once Assembled, with Power not to be Dissolved but by their own consent, in that capa∣city the highest Vote and Trust (that can be) is exercised, and this by Authority of Parliament, unto ex Officio, or by way of Of∣fice are the Keepers of the Liberties of England, or of the People, by the said Authority, for which they are accountable if they do not faithfully discharge that their duty. This Office of keeping the Liberty, which by the Law of God and Nature is due to the Com∣munity or whole Body of the People, is, by way of Trust, commit∣ted by themselves to their own Delegates, and in effect amounts unto this.

Page  108 1. That they may of right keep out and refuse any to exercise Rule and Command over them, except God himself, who is the Supream and Universal King and Governour; or, such as shall a∣gree in their Actings, to bear his Image, (which is, to be Just) and shew for the Warrant of their Exercise of Soveraignty, both a likeness in Judgement and Will, unto him, who is Wisdom and Righteousness it self; and the Approbation and common Consent of the whole Body, rationally reposing that Trust in them, from what is with visible and apparent Characters manifest to them, of an aptness and sufficiency in them, to give forth such publick Acts of Government, that may bear the Stamp of God's Impression up∣on them in the Judgements they do and execute; especially, being therein helped with a National Counsel of the Peoples own choos∣ing from time to time.

2. They may of right, keep, hold, and restrain him or them, with whom the Coercive or Executive Power is intrusted, unto a pun∣ctual performance of Duty, according to the Fundamental Con∣stitution, the Oath of the Ruler, and the Laws of the Land. And if they shall refuse to be so held and restrained by the humble Desires, Advice and common Consent in Parliament, and the Peoples De∣legates be invaded and attempted upon by force, to deter them from the faithful discharge of this their Duty; they may, in asserting their Right, and in a way of their own just Defence, raise Armes, put the issue upon Battel, and Appeal unto God.

3. Such Appeal answered, and the issue decided by Battel, the Peoples Delegates still sitting, and keeping together in their Col∣lective Body, may of right, and according to reason refuse the re∣admission or new-admission of the Exercise of the former Rulers, or any new Rulers again over the whole Body, till there be recei∣ved Satisfaction for the former Wrongs done, the expence and haz∣zard of the War, and Security for the time to come, that the like be not committed again. Until this be obtained, they are bound in duty, in such manner as they judge most fit, to provide for the pre∣sent Government of the whole Body, that the Common-weal re∣ceive no detriment.

4. In this which is the proper Office of the Peoples Delegates, and concerns the keeping and defending the Liberty and Right of the whole People and Nation, they may and ought, (during their sitting) to Exercise their own proper Power and Authority (the Exigents of the Kingdom requiring it) although the other two Estates joyntly instructed with them, (in the exercise of the Le∣gislative Page  109 Authority) should desert their station, or otherwise sail in the Execution of their Trusts; yea, or though many or most of their own Members (so long as a lawful Quorum remains) shall either voluntarily withdraw from them, or, for just cause become excluded. In this discharge of their trust, for the common welfare and safety of the whole, their Actings (though extraordinary and contrarient to the right of the other two) cannot be treasonable or criminal, (though they may be tortious, and erroneous) seeing they are equals and co-ordinate, in the exercise of the Legislative Power, and have the Right of their own proper Trust and Office to discharge and defend, though their fellow Trustees should fail in theirs. Nor can, nor ought the People, as Adherents to their own Delegates and Representatives, to be reputed criminal, or blame▪ worthy, by the Law.

In the exercise of one and the same Legislative power (accord∣ing to the Fundamental Constitution of the Government of En∣gland) there are three distinct publick Votes, allowed for Assent or Discent, in all matters coming before them; the Agreement of which is essential and necessary to the passing of a Law: the perso∣nal Vote of the King; the personal Votes of the Lords in a House or distinct Body; and the Delegated Vote and Suffrage of the whole People, in their Representative Body, or the House of Com∣mons. Unto each of these, appertains a distinct Office and Privi∣ledge, proper to them.

1. The Regal Office, and the Prerogative thereof to the King.

2. The Judicial Office, to the Lords, as the highest Judicature and Court of Justice under the King, for the exercising Coercive Power, and punishing of Malefactors.

3. The Office of the Keepers of the Liberties and Rights of the People, as they are the whole Nation, incorporated under one Head, by their own free and common Consent.

The Regal Office is the Fountain of all Coercive and Executive Power, pursuant to the Rule, set to the same by Law, or, the Agreement of the three Estates in Parliament.

The Rule which is set, is that of Immutable Just and Right, ac∣cording to which, penalties are applicable, and become due, and is first stated and ascertained, in the declared Law of God, which is the signification or making known by some sign, the Will of the Supream Legislator, proceeding from a perfect Judgement and Un∣derstanding, that is without all Error or Defect.

Page  110 The Will that flowes from such a Judgement, is in its nature Le∣gislative, and binding, and of right to be obeyed for its own sake, and the perfection it carries in it, and with it, in all its actings. This Will is declared by Word, or Works, or both. By Word we are to understand, either the immediate Breath and Spirit of Gods mouth or mind, or the Inspiration of the Almighty, mini∣stred by the holy Ghost, in and by some creature, as his vessel and instrument, through which the holy Scriptures of the old and new Testament were composed. By works that declare God's Will, we are to understand the whole Book of the Creature, but more eminently and especially, the particular Beings and Natures of An∣gels and Men, who bear the name and likeness of God in and upon their Judgements and their Wills; their directing Power, and their executive Power of mind, which are essential to their Being, Life, and Motion.

When these direct and execute, in conjunction and harmony with God's Judgement and Will, made known in his Law, they do that which is right; and by adhering and conforming themselves unto this their certain and unerring Guide, do become Guides and Ru∣lers unto others, and are the Objects of right choice, where Rulers are wanting in Church or State.

The Rule then to all action of Angels or Men, is that of moral or immutable Just and Right, which is stated and declared in the Will and Law of God. The first and highest imitation of this Rule, is the Creature-being in the person of Christ. The next is the Bride the Lambs Wife. The next is the innumerable Society of the holy Angels. The next is the Company of Just Men, fixed in their natural Obedience and Duty, through Faith, manifesting it self not onely in their Spirits, but in their outward Man, redeemed even in this World, from the body of corruption, as far as is here attainable. The Power which is directive, and states and ascertains the morallity of the Rule for Obedience, is in the Law of God. But the original, whence all just executive Power arises, which is Magistratical and Coercive, is from the will or free gift of the Peo∣ple, who may either keep the Power in themselves, or give up their Subjection into the hands and will of another, as their Leader and Guide, if they shall judge that thereby they shall better answer the end of Government, to wit, the welfare and safety of the whole, then if they still kept the Power in themselves. And when they part with it, they may do it conditionally or absolutely; and whilst they keep it, they are bound to the right use of it. In this Liberty, Page  111 every man is created, and it is the Priviledge and just Right which is granted unto Man by the Supream Law-giver, even by the Law of Nature, under which man was made.

God himself leaves man to the free exercise of this his Liberty, when he tenders to him his safety and immutability, upon the well or ill use of this his Liberty, allowing him the choice, either to be his own guide and self-ruler, in the ability communicated to him, to know and execute Gods Will, and so to keep the Liberty he is pos∣sessed of, in giving away his subjection or not; or else upon God's Call and Promise, to give up himself in way of subjection to God, as his Guide and Ruler, either absolutely or conditionally. To himself he expects absolute Subjection; to all subordinate Rulers, conditional.

While mans Subjection is his own, and in his own keeping, un∣bestowed and ungiven out of himself, he is not, nor cannot be ac∣countable by way of crime or offence, against his Ruler and Sove∣raign, but may do with his own what he please; but still at his pe∣ril, if he use not this his Liberty as he should, to the end for which it is given him, which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver, and Rightful King, without possibility of change or de∣fection.

Unto this right and the lawful exercise and possession of, it this Nation did arive by the good providence and gift of God, in cal∣ling and assembling the Parliament, November 3d. 1640. and then continuing their Session by an express Act, 17. Car. with power not to be dissolved but by their own consent; which was not so much the introducing of a new Law, as declaratory of what was Law before, according to Man's natural Right, in which he was created, and of which he was possessed by God, the soveraign giver of all things.

But the passing that said Act of Parliament alone, was not that which restored the Nation to their original Right, and just Natu∣ral Liberty; but onely put them in the capacity and possibility of it. That which wanted to make out to the Nation a clearness in having and obtaining this their right, was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority, which in justice and by the Oathes of Allegiance they were solemnly bound to, in the sight of God as well as of Man. And therefore, unless by the abuse of that office of Trust, (to that degree, as on his part, to break the fundamental compact and con∣stitution Page  112 of Government) they could not be set free nor restored to their original Right and first Liberty: especially if together with such breach of Trust, both parties appeal to God, and put it upon the issue of Battel, and God give the decision; and in consequence thereof, that original Right be asserted, and possession thereof had and held for some years, and then not rightfully lost, but trea∣cherously betrayed and given up by those in whom no power was rightfully placed, to give up the subjection of the Nation again un∣to any, whatsoever.

Unto which is to be added, that how and when the dissolution of the said Parliament, (according to Law) hath been made, is yet unascertained, and not particularly declared: by reason where∣of, and by what hath been before shewed, the state of the Case on the Subjects part, is much altered, as to the matter of Right, and the Usurpation is now on the other hand, there being, (as is well known) two sorts of Usurpers; either such, as having no right of consent at all unto the Rule they exercise over the Subject; or such, who under pretence of a Right and Title, do claim not by con∣sent, but by conquest and power, or else hold themselves not obliged to the Fundamental compact and constitution of Government, but gain unduely from the Subject, (by advantages taken through de∣ceit and violence) that which is not their own by Law.

For a rational Man to give up his Reason and Will unto the Judgement and Will of another, (without which, no outward co∣ercive Power can be) whose Judgement and Will is not perfectly and unchangeably good and right, is unwise, and unsafe, and by the Law of Nature, forbidden. And therefore all such gift, made by rational men, must be conditional, either implied, or explicite, to be followers of their Rulers, so far as they are followers of that good and right, which is contained in the Law of the Supream Law∣giver, and no further; reserving to themselves, (in case of such defection and declining of the Rulers actings from the Rule) their primitive and original Freedom, to resort unto, that so they may in such case, be as they were before they gave away their subjecti∣on unto the Will of another; and reserving also the power to have this judged by a meet and competent Judge, which is the Reason of the King and Kingdom, declared by their Representatives in Par∣liament; that is to say, the Delegates of the People in the House of Commons assembled, and the Commissioners on the Kings be∣half, by his own Letters Patents, in the House of Peers; which two concurring do very far bind the King, if not wholly.

Page  113 And when these cannot agree, but break one from another, the Commons in Parliament assembled, are ex Officio, the Keepers of the Liberties of the Nation, and righteous Possessors and De∣fendors of it, against all Usurpers and Usurpations whatsoever, by the Laws of England.