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ment being endangered, their trust binds, as to assist the king in sea 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 as. sume 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.
JVhere the Legal Power of Final Judging in these cases doth reside, in cuse the three Estates differ about the same.?
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 mat. ter 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 alledged by one or two of the estates against the other, that, not content. ing 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 in. teresting 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 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.
What is to be done in such a contention? If it be demanded, then, how this cause can be decided ? And which way must the people turn in such a contention ? I answer, if the non-decision be tolerable, it must remain undecided, whilst the principle of legal decision is thus divided, and by that division each suspends the other's power. If it be such as is destructive, and necessitates a determination, this must be evident; and then every person must aid that part, which, in his best reason and judgment, stands for publick good against the destructive. And the laws and government which he stands for, and is sworn to, justify and bear him out in it, yea bind him to it. If any wonder I should justify a power in the two houses, to resist and command aid against any agents of destructive commands of the king, and yet not allow them power of judging when those agents or commands are destruc. tive: I answer, I do not simply deny them a power of judging and declaring this, but I deny them to be a legal court ordained to judge of this case authoritatively, so as to bind all people to receive and rest in their judgment for conscience of its authority, and because they have voted it. It is the evidence, not the power of their votes, must bind our reason and practice in this case. We ought to con ceive their votes the discoveries made by the best eyes of the king. dom, and which, in likelihood, should see most: But, when they vote a thing against the proceedings of the third and supreme estate, our consciences must have evidence of truth to guide them, and not the sole authority of votes, and that for the reason so often alledged.
REASONS FOR CROWNING
PRINCE AND PRINCESS OF ORANGE,
KING AND QUEEN JOINTLY, and for placing the Executive Power in the Prince alone.
London, printed in the Year 1689. Folio, containing one page.
WHEREAS the grand convention of the Estates of Englaud, bare
have asserted the people's rights, by declaring, 'That the late King James 'the Second, having endeavoured to subvert the constitution of the
kingdom, by breaking the original contract between king and people, and, by advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out 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 accor. dingly 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 be attributed to either estate, which directly, or by necessary cone 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 des termining 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 goverpment, pode 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 appre nsions 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 governa 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 goverument its being; for then it was the reason of a state, yet free, and to use their reason and judgment in ordaining a govern. ment. 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 es. tablished, and restrained themselves unto. Their reason is ours, 80 far as they are an ordained representative body: But I have be