Touching the Fundamental Laws, Or Politic Constitution of this Kingdom, The KING'S Negative Voice, and The Power of PARLIAMENTS.  
To which is annexed, The privilege and power of the Parliament touching The MILITIA.  
LONDON Printed for Thomas Vnderhill, and are to be sold at the sign of the Bible in Woodstreet. M.DC.XLIII.   

TOUCHING FUNDAMENTAL LAWS, AND The KING'S Negative Voice.  
FVndamentall Laws are not (or at least need not be) any written agreement like Meare-stones between King and People, the King himself being a part (not party) in those Laws, and the Commonwealth not being like a Corporation treated by Charter, but treating itself. But the fundamental Law or Laws is a settling of the laws of nature and common equity (by common consent) in such a form of Polity and Government, as that they may be administered amongst us with honour and safety. For the first of which therefore, we are governed by a King: and for the second, by a Parliament, to oversée and take order that that honourable trust that is put into the hands of the King for the dignity of the Kingdom, be rightly executed, and not abused to the alteration of the Politic Constitution taken up and approved, or to the destruction of that, for whose preservation it was ordered and intended. A principal part of which honour, is that royal assent he is to give for the enacting of such good Laws as the people shall choose, for they are first to consult their own safety and welfare, and then he who is to be entrusted with it, is to give an honourable confirmation to it, and so to put an Impress of Majesty and Royal authority upon it.  
Fundamental Laws than are not things of capitulation between King and people, as if they were Foreigners and Strangers one to another, (nor ought they or any other Laws so to be, for then the King should govern for himself, not for his people) but they are things of constitution, treating such a relation, and giving such an existence and being by an external polity to King and Subjects, as Head and Members, which constitution in the very being of it is a Law held forth with more evidence, and written in the very heart of the Republic, far firmlyer than can be by pen and paper, and in which sense we own our Allegiance to the King as Head, (not only by power, but in●uence) and so part of the constitution, not as a party capitulating for a prerogative against or contrary to it, which whosoever seeks to set up, or side with, do break their Allegiance, and rebel against the State, going about to deprive the King of his juridical and lawful authority, conferred upon him by the constitution of this State, under the pretence of investing him with an illegal and unconstitutive power, whereupon may follow this grand inconvenience, The withdrawment of His people's Allegiance, which, as a Body connexed with the Head by the constitution of this Kingdom, is owing to him; his person in relation to the body, as the enlivening and quickening head thereof, being sacred and taken notice of by the laws in that capacity, and under that notion is made inviolate.  
And if it be conceived that Fundamental Laws must needs be only extant in writing, this is the next way to bring all to confusion, for then by the same rule the King bids the Parliament produce those Laws that fundamentally give them their being, privileges & power, (Which by the way is not like the power of inferior Courts, that are springs of the Parliament, dealing between party and party, but is answerable to their trust, this Court being itself Fundamental and Paramount, comprehending Law and Equity, and being entrusted by the whole for the whole, is not therefore to be circumscribed by any other Laws which have their being from it, not it from them, but only by that Law which at first gave it its being, to wit, Salus populi) By the same rule I say the Parliament may also entreat the King to produce those Laws that Fundamentally give him his being, power and honour. Both which must therefore be determined, not by laws, for they themselves are laws, yea the most supreme and fundamental law, giving law to laws themselves, but by the received constitution or policy, which they themselves are; and the end of their constitution is the law or rule of their power, to wit, An honourable and safe Regiment of the Commonwealth, which two whosoever goeth about to divide the one of them from the other, breaks the fundamental constitutive law or laws polity of this kingdom, that ordinance of man which we are to submit unto; nor can or ought any statute or written law whatsoever, which is of later Edition and inferior Condition, being but an offspring of this root, be interpreted or brought in Plea, against this primary and radical constitution, without guilt of the highest Treason and destructive enmity to the Public weal and polity, because by the very constitution of this Kingdom, all laws or interpretation of laws tending to confusion or dissolution, are ipso facto void. In this case we may allude and say, That the Covenant which was 400. years before the Law, an after-Act cannot disannul it.  
Ob. It may be objected, that this discourse seems to make our Government to be founded in Equity, not in Law, or upon that common rule of Salus populi, which is alike common to all Nations, as well as any: and so what difference:  
Ans. The Fundamental laws of England are nothing but the Common laws of Equity and Nature reduced into a particular way of policy, which policy is the ground of our title to them, and interest in them: For though it is true, that Nature hath invested all Nations in an equal right to the laws of Nature and Equity by a common bounty, without respect of persons, yet the several models of external Government and Policy renders them more or less capable of this their common right: For though they have an equal right in Nature to all the Laws of Nature and Equity, yet having fundamentally subjected themselves by their politic Constitutions unto a Regal servitude, by Barbarism or the like, they have thereby much disabled and divested themselves of that common benefit. But on the contrary, where the outward constitution or polity of a Republic is purposely framed for the confirming and better conserving this common right of Nature and Equity, (as in ours) there is not only a common right, but also a particular and lawful power joined with this right for its maintenance and supportion. For whereas other people are without all supreme power, either of making laws or raising moneys, both these bodies of supremacy being in the arbitrary hands only of the Sovereign Magistrate amongst many Nations, these with us are in the hands of the supreme Government, (not Governor) or Court of judicature, to wit, the King and Parliament; here the people (like Fréemen) give money to the King, he doth not take it; and offers Laws to be enacted, doth not receive them so: Now in such a constituted Kingdom, where the very Constitution its self is the fundamental law of its own preservation, as is this mixed Regiment of ours, consisting of King and Parliament, as Head and Body, comprehending Monarchy, Aristocracy, and Democracie; there the fundamental laws are like fundamental truths in these two properties: First, they are comprehended in a very little room, to wit, honour and safety; and secondly, they have their influence into to all other inferior Laws which are to be subjected to them, and correspondent with them, as lawful children and natural branches.  
Ob. But in process of time there are many written Laws which seem at least to contradict this Fundamental Constitution, and are not they binding notwithstanding it?  
Ans. The Constitution of this Kingdom which gave it its being, and which is the radical and fundamental law thereof, ought therefore to command in chief, for that it never yields up its authority to those inferior laws, which have their being from it, nor ought they which spring from it tend to the destruction of it, but on the contrary, it is to derive its radical virtue and influence into all succeeding laws, and they like branches are to make the root flourish, from whence they spring, with exhibiting the lively and structifying virtue thereof, according to the nature and seasons of succeeding times; things incident in after-ages not being able to be fore-seen, and particularly provided for at the beginning, saving in the fundamental law of Salus populi, politicly established; nor can any laws growing out of that root, bear any other fruit, than such as the nature thereof dictates; for, for a particular branch to ruin the whole foundation by a seeming sense contrary to it, or differing from it, is very absurd; for then how can it be said, Thou bearest not the root, but the root thee? Laws must always relish of, and drink in the constitution or polity where they are made; and therefore with us, the laws wherein the King is nominated, and so seems to put an absolute authority into his hands, must never so be construed, for that were with a breath to blow down all the building at once; but the King is there comprehended and meant under a twofold notion; First, as trusted, being the Head, with that power the Law conferred upon him, for a Legal, and not an absolute purpose, tending to an honourable preservation, not an unnatural dissolution. Secondly, as meaning him juridically, not abstractly or personally, for so only the Law takes notice of the King as a juridical person: for till the Legislative power be absolutely in the King, so that laws come down from him to his people, and go not up from them to him, they must ever be so interpreted: for as they have a juridical being and beginning, to wit, in Parliament, so must they have a suitable execution and administration, to wit, by the Courts, and legal Ministers, under the King's authority, which according to the constitution of this Kingdom, he can no more suspend for the good of his people, than the Courts can theirs; or if he do, to the public hazard, then have the Courts this advantage, that for public preservation they may and must provide upon that principle, The King can do no wrong, neither in withholding justice, nor protection from his people. So that then Salus populi being so principally respected and provided for, according to the nature of our constitution and polity, & so being Lex legum, or the rule of all laws branching thence, Then if any law do by variation of times, violence of tyranny, or misprision of Interpreters, vary therefrom, it is a bastard, and not a son, and is by the lawful parents either to be reduced or cast out, as gendering unto bondage and ruin of the inheritance, by attempting to erect an absolute and arbitrary Government. Nor can this equitable exposition of particular Statutes taken from the scope of the politic constitution be denied without overthrow of just and legal Monarchy, (which ever tends to public good and preservation) and the setting up of an unjust and illegal tyranny, ruling, if not without law, yet by abused laws, turning them as conquered ordnance upon the people. The very Scripture itself must borrow from its scope and principles for explanation of particular places, else it will be abused (as it is through that default) unto Heresies. See we not how falsely Satan quoted true Scripture to Christ when he tempted him, only by urging the letter without the equity, or true intention and meaning? We are to know and do things verum verè, justum justè, else we neither judge with righteous judgement, nor obey with just obedience.  
Ob. But is not the Parliament guilty of exercising an arbitrary power, if their proceed be not regulated by written laws, but by Salus populi?  
Ans. For the Parliament to be bound up by written laws, is both destructive and absurd.  
First, it is destructive, it being the Fundamental Court and Law, or the very Salus populi of England, and ordained, as to make laws, and see them executed, so to supply their deficiency according to the present exigency of things for public preservation by the prerogative of Salus populi, which is universally in them, and but particularly in particular laws and statutes, which cannot provide against all future exigents, which the law of Parliaments doth, and therefore are not they to be limits to this. And it would yet be further destructive, by ●utting the Parliament short of half its power at once, for it being a Court both of Law and Equity (as appears by the power of making laws, which is nothing but Equity reduced by common consent into Polity) when ever it is ci●cumseribed by written laws, (which only is the property of inferior Courts) it ceaseth to be supreme, and divests itself of that inherent and uncircumseribed power which Salus populi comprehends.  
Secondly, as it is destructive, so also it is absurd; for the Legislative power which gives laws, is not to receive laws, saving from the nature and end of its own constitution, which as they give it a being, so they endow it with l●ws of preservation both of itself & the whole, which it represents.  
I would not herein be misunderstood, as if the Parliament, when as it only doth the office of inferior Courts, judging between party & party, were not limited by written laws: there I grant it is, because therein it only deals between meum & tuum, which particular written laws, can and aught to determine: so that its superlative and uncircumseribed power I intent only as relating to the Universe and the affairs thereof, wherein it is to walk by its fundamental principles, not by particular precepts or Statutes, which are made by the Parliament, between King and people, not between people and Parliament: they are ordained to be rules of Government to the King, agreeing with the liberty and property of the people, and rules of Obedience to the people without detainment of their freedom by the exercise of an illegal, usurped, and unconsented power, whereunto Kings (especially in hereditary Monarchies) are very prone, which cannot be suspected by a Parliament, which is representatively the Public, entrusted for it, & which is like to partake and share with the Public, being but so many private men put into authority protempore, by common consent, for common good.  
Nor is the Parliament hereby guilty of an Arbitrary Government, or is it destructive to the Petition of Right, when as in providing for public weal, it observes not the letter of the law; first, because as aforesaid, that law was not made between Parliament and people, but by the people in Parliament between the King and them, as appears by the whole teneur of it, both in the complaining and praying parts, which wholly relate to the King. Secondly, because of the common consent, that in the representative Body (the Parliament) is given thereunto, wherein England in her Polity imitates Nature in her Instincts, who is wont to violate particular principles for public preservation, as when light things descend, and heavy ascend, to prevent a vacuum: and thirdly, because of the equitable power which is inherent in a Parliament, and for public good is to be acted above and against any particular Statute, or all of them: and fourthly, because the end of making that Law, to wit, the public preservation, is sulfild in the breaking of it, which is lawful in a Parliament that is chosen by the whole for the whole, and are themselves also of the body, though not in a king, for therein the Law saith, Better a mischief then an inconvenience. But it may be objected, though it be not Arbitrary for the Parliament to go against written law, yet is it not so when they go against the King's consent, which the law, even the fundamental law, supposeth in Parliamentary proceed; This hath been answered, that the King is juridically and according to the intention of the law in his Courts, so that what the Parliament consults for the public good, That by oath, and the duty of his office, and nature of this polity he is to consent unto, and in case he do deny it, yet in the construction of the fundamental law and constitution of this Kingdom, he is conceived to grant it, supprosing the head not to be so unnatural to the body that hath chosen it for good and not for evil.  
But it will be answered, where is the King's Negative Voice if the Parliament may proceed without his consent? I answer. That there is no known nor written law that gives him any; and things of that nature are willingly believed till they be abused, or with too much violence claimed. That his Majesty hath fundamentally a right of consent to the enacting of laws is true, which (as aforesaid) is part of that honourable trust constituted in him: And that this royal ascent is an act of honoer and not of absolute and negative power orprerogative, appears by these following reasons.  
First, by his oath at the Coronation mentioned in one of the Parliaments Declarations where he doth or should swear to confirm and grant all such good laws as his people shall choose to be observed, not hath chosen, for first, The word concedis in that oath were then unnecessary, the laws formerly enacted being already granted by foregoing Kings, and so they need no more concession or confirmation, else we must run upon this shelf that all our laws die with the old King, and receive their being a new, by the new King's consent. Secondly, Hereby the first and second clause in that interrogatory, viz. Concedis iustas leges & permittas prot●gendas, are confounded and do but idem repetere; Thirdly, Quas vulgus elegerit implies only the act of the people in a disjunctive sense from the act or consent of the King, but laws already made have more than quas vulgus elegerit, they have also the royal consent too, so that that phrase cannot mean them wherein the act or consent of the King is already involved.  
Secondly, by the practice of requiring the royal ascent even unto those very acts of subsidies which are granted to himself and for his own use, which it is supposed he will accept of, and yet Honoris gratia is his royal ascent craved and contributed thereunto.  
Thirdly, by the Kings not sitting in Parliament to debate and consult laws, nor are they at all offered him by the Parliament to consider of, but to consent to, which yet are transmitted from one house to another, as well to consult as consent to, showing thereby he hath no part in the consultory part of them (for that it belongs only to the people in Parliament to discern and consult their own good,) but he comes only at the time of enacting, bringing his Royal Authority with him, as it were to set the seal thereof to the Indenture already prepared by the people, for the King is head of the Parliament in regard of his authority, not in regard of his reason or judgement, as if it were to be opposed to the reason or judgement of both houses (which is the reason both of King and Kingdom) and therefore do they as consult so also interpret laws without him, supposing him to be a person replenished with honour and royal authority not skilled in laws, nor to receive information either of law or council in Parliamentary affairs from any, saving from that supreme court and highest council of the King and Kingdom, which admits no counterpoise, being entrusted both as the wisest Council and justest judicature.  
Fourthly, either the choice of the people in Parliament is to be the ground and rule of the King's assent, or nothing but his pleasure, and so all Bills though never so necessary for public good and preservation, and after never so much pains and consultation of both houses may be rejected, and so they made mere cyphers, and we brought to that pass, as either to have no laws, or such only as come immediately from the King (who oft is a man of pleasure, and little seen in public affairs, to be able to judge) and so the Kingdom's great council must be subordinated either to his mere will, and then what difference between a free Monarchy, and an absolute, saving that the one rules without Council, and the other against it, or at the best but to a cabinet council consisting commonly of men of private interests, but certainly of no public trust.  
Ob. But if the King must consent to such laws as the Parliament shall choose eo nomine, they may then propound unreasonable things to h●m, as to consent to his own deposing, or to the lessening his own revenue, etc.  
Ans. So that the issue is, whether it be fit to trust the wisdom and integrity of our Parliament, or the will and pleasure of the King in this case of so great and public concernment. In a word, the King being made the fountain of justice and protection to his people by the fundementall laws or constitution of this Kingdom, he is therefore to give life to such acts and things as tend thereunto, which acts depend not upon his pleasure, but though they are to receive their greater vigour from him, yet are they not to be suspended at pleasure by him, for that which at first was intended by the kingdom: for an honourable way of subsistence and administration must not be wrested contrary to the nature of this Polity, (which is a free and mixed Monarchy and not an absolute) to its destruction and confusion, so that in case the King in his person should decline his duty, the King in his courts are bound to perform it, where his authority properly resides, for if he refuse that honour which the republic by its fundamental constitution hath conferred upon him, and will not put forth the acts of it, for the end it was given him, viz. for the justice and safety of his people, this hinders not but that they who have as fundamentally reserved a power of being & wellbeing in their own hands by the concurrence of Parliamentary authority to the royal dignity, may thereby provide for their own subsistence, wherein is acted the King's juridical authority though his personal pleasure be withheld, for his legal and juridical power is included and supposed in the very being, and consequently in the acts of Courts of justice, whose being he may as well suspend as their power of acting, for that without this is but a cipher, and therefore neither their being nor their acting so depend upon him, as not to be able to act and execute common justice and protection without him, in case he deny to act with them, and yet both so depend upon him, as that he is bound both in duty and honour, by the constitution of this polity to act in them and they from him, so that (according to that axiom in law) the King can do no wrong, because his iuridicall power and authority is always to control his personal miscarriages.   

Se Defendendo.  
GOd and nature hath ordained Government for the preservation of the governed. This is a truth so undeniable, as that none will gainsay it, saving in practice, which therefore being taken for granted, it must needs follow that to what end Government was ordained, it must be maintained, for that it is not in the power of particular persons or communities of men to departed with self preservation by any covenant whatsoever, nor ought it to be exacted by any superiors from their inferiors, either by oath or edict, because neither oaths nor statutes are obligatory further than they agree with the righteous Laws of God and nature; further than so they ought neither to be made nor kept.  
Let it be supposed then for argument sake, that the Militia of the Kingdom, is in the power of the King, yet now as the case stands it is lawful for the Parliament to reassume it, because though they passed it into his hands, for the people's preservation, yet it was never intended that by it he might compass their destruction, contrary to the Law of nature; whereby every man, yea every thing is bound to preserve itself. And thusmuch in effect is confessed at unawares, by the Author of the Reply to the Answer of the London Petition: who affirmeth, saying The King is invested with the sole power of Training, Arraying, and Mustering, and then gives the reason, because it is most consonant to reason, as well as grounded on Law, That he which is bound to protect, should be able to compass that end. Which reason overthrows both his position and intention. 

1. His position, for this is no reason why the sole power of the Militia should be in the hands of the King; because he is bound to protect, except he were bound solely to protect, that is, without the counsel and advice of Parliament: but it hath been resolved that He is not sole judge of necessity, and therefore not sole protector against it, but together with His Parliament, who consequently shares in the power of the Militia.  
2. It overthrows His intention, which is so to put the power of the Militia into the hands of the King, as to enable him to do what he will with it, whenas yet he himself cannot but affirm, it is his to protect withal, for hat when he ceaseth to use it to its end, it ceaseth to be in his power, or else let the man speak plain, and say, it is His to destroy as well as to protect.    
Ob. But the Militia is passed to the King, absolutely without any condition of revocation expressed, or of limitation to circumscribe the use whereunto it ought to be employed.  
1. Ans. Laws of God and nature, neither are nor need to be expressed in contracts or edicts, for they are ever supposed to be supreme to humane ordinances, and to challenge obedience in the first place, and other Laws so far only as they are consonant to them, though these laws be further backed with Oaths and Protestations: As for instance, I give a man a sword, and swear I will never take it from him; yet if he actually assault me, or it manifestly appear he intends to cut my throat, or take my purse with it, I may lawfully possess myself of it again if opportunity serve, because in such agreements betwixt man & man, the laws of nature neither are nor can be exempted, but are necessarily employed, still to be of force, because no bonds can lawfully invalid them, and id solum possumus quod jure possumus. But it may be asked how it appears that the King intends to employ the Militia to the destruction of his people. Why first because He hath refused to hearken to the wholesome counsel of His Parliament, the representative body, and the highest Court and Counsel of the Kingdom. 2 Because, è contrario, he hearkens to the counsels of notorious Papists and Malignants, men engaged against the public good and welfare of this Kingdom, in a diametral opposition, so that if they perish it prospereth, and if it prosper they perish. 3. Because he hath had a deep hand in contriving and plotting the ruin and extirpation of the Parliament, by secret and open violence, and in them of the whole Kingdom of whom they are the Epitome, and as the King is the head, so they are the heart. But further it may be replied, that the King hath promised to maintain Parliaments and govern by Law. Ans. That is so far as he knows his own heart, and as he can be master of himself: He swore the same at His Coronation, and promised as much when he granted the Petition of Right, but how they have been kept God knows, and we are not ignorant. It may be His Majesty may mean as he speaks, but 

1. Temptations may change his mind, as it hath done too often, and as it did his that said to the Prophet, Is thy servant a dog that he should do such things? and yet did them. The welfare of Kingdoms is not to be founded upon bare spontaneous promises, but real contracts.  
2. He himself says, he himself is not skilled in the Laws, and we have found it true, so that he must take information of them from some body from his Parliament (that is his people that made them) he will not, and are any fit to be Judges of the Law, than the highest Court; if they may be Judges that are delinquents to the Law, and Malignants against it, and have been grievous oppressors of the People, even against the known Laws (so much cried up) we are like to have just Judges and righteous Lawyers.    
2. Ans. If the Militia be so absolutely the Kings, as that all power of defence and preservation of ourselves and our rights be taken from us, to what purpose do we strive for liberty & property, and laws to confirm them? these are but imaginary things, if they have no hedge to fence them; If the Militia be for the King, let us burn the Statutes we have already, and save a labour of making more. No man would think it a good purchase to buy land, and when he hath paid his money to have it in the power of the seller, to take it from him by his sword.  
Ob. It is true that Kings are tied by oath, and legal contracts, to govern by Laws, and to maintain liberty and property to their people, which puts them under an obligation of conscience to God, so that they are responsible to him for the breach of fidelity and duty, but not to the people who may mind them of their duty, but not compel them to it.  
Ans. This Objection hath two parts, First, That Kings are only responsible to God. 2. That Subjects must suffer, wrong, but not by force maintain their right. To the first I answer. That if Kings be solely answerable to God, than contracts are in vain, for they shall answer for all their arbitrary and unjust tyranny over their people, though there were no contracts. That which makes us happier than other Nations, sure is not this, that the King for the breach of his duty hath more to answer at the day of judgement than other Kings have, if that be all we have small cause to joy in our privileges, they are neither worth the blood that hath been shed for them, nor the money that hath been paid for them. Secondly, Government must be considered under a twofold notion, divine and humane. The Genus which is government itself is divine, so that people are absolutely bound to have government, but not bound to have an absolute government, for the species or the modus gubernandi is humane, and therefore the Apostle says, Be subject to every ordinance of man, that is, to every such kind of Government as your lot falls to be under, by the constitution of the Commonwealth you live in. Now Government being thus of a mixed nature, the Ordinance both of God and man, it is not only subject to God but also to men, to be regulated, amended, and maintained by the people: for as it is God's Ordinance for their good, so doth he give them liberty to provide it be not abused to their hurt, so that when God shall put an opportunity into their hands, they ought to improve it to the setting of government up right, or the keeping of it so from apparent violations. There was a time when both Government and the manner of governing belonged to God, to wit, amongst the Israelites, for to that people he was both a God of morals and politiks, and therefore he took it so ill for them to usurp upon his right, as to desire to change their government from Judges to Kings, but this was a peculiar right he assumed over that particular people only. To the second I answer thus. Every Subject taken divisim, and apart from the whole, is to suffer under abused authority, and to obey passively, rather than to break union or cause confusion, but no Subject is bound to suffer by that which is not authority, as is the will of the Magistrate: If a Court of Justice should unjustly condemn a man, he is patiently to undergo it, but if a Judge or the King himself should violently set upon him to kill him, he may defend himself; for the Ordinance of God and man both, is affixed to the office, and not unto the person, to the authority and not unto the will, so that the person acting out of office, and by his will may be resisted, though the ordinance may not. But the representative body of the Commonwealth, (which is all men conjunctim) they may not only oppose the person and his will, but even the office and authority itself when abused, and are bound to it both in conscience to God when he gives them opportunity, and in discharging of their trust to them that employed them. For first God calls to have the wicked removed from the Throne, and whom doth he call upon to do it but upon the people (in case the King will not) or their trusties, for as he hath originally founded all authority in the people, so he expects a discharge of it from them for his glory, & the public weal, which are the ends of Government, from which God and nature hath ordained it. Secondly, In discharge of their trust for the whole, for order sake, making them their representative actors, and putting that universal and popular authority, that is in the body of the people, and which (for the public good and preservation) is above every man and all Laws, into their hands, they may expect and challenge them by virtue of their stewardship, to provide for their safety and well being, against whomsoever shall oppose it, no one being above all, and therefore ought not that universal power, which by way of trust is conveyed over to the Parliament, be betrayed into the hands of any by admitting or allowing any authority to be superior, by tollerating abuses and usurpations, as if they had not power to regulate them.  
FINIS.