our whole promise in that particular, without any prejudice done to Episcopacy. But,

1. Neither the composers of the Covenant by their words, nor the imposers of it by their actions, have given us the least signification that they meant no more.

2. Yea, rather, if we may judge either by the cause or the effects, we may well think there was a meaning to extirpate the whole government, and every part thereof, in the article expressed. For

1. The Covenant being (as we have no cause to doubt) framed at the instance of the Scots, and for the easier procuring of their assistance in the late war, was therefore in all reason so to be framed and understood as to give them satisfaction; and (considering what themselves have declared against Episcopacy,) we have little reason to believe the taking away Apparitors, or any thing less than the rooting out of Episcopacy itself, would have satisfied them.

1

2. The proceedings also since the entering of this Covenant, in endeavouring by ordinance of Parliament to take away the name, power, and revenues of Bishops, do sadly give us to understand what was their meaning therein.

Fourthly, As to the scruples that arise from the sovereignty of the King, and the duty of allegiance

1 "By the Covenant, both Houses of Parliament, and many thousands of other his Majesty's subjects in England and Ireland, stand bound, as well as we, to hinder the setting up of church-government by Bishops in the kingdom of Scotland: and that we, as well as they, stand bound to endeavour the extirpation thereof in England and Ireland." Scots' Declaration to the States of the United Provinces, 5 Aug. 1645, recited in answer to the Scots' Papers, p. 23.

as subjects, we find two several ways of answering, but little satisfaction in either.

1. The former, by saying (which seemeth to us a piece of unreasonable and strange divinity) that protection and subjection standing in relation either to other, the King being now disabled to give us protection, we are thereby freed from our bond of subjection. Whereas 1. The subject's obligation (jus subjectionis) doth not spring from, nor relate unto, the actual exercise of kingly protection, but from and unto the Prince's obligation to protect (jus protectionis). Which obligation lying upon him as a duty which he is bound in conscience to perform, when it is in his power so to do the relative obligation thereunto lieth upon us as a duty, which we are bound in conscience to perform, when it is in our power so to do. His inability therefore to perform his duty doth not discharge us from the necessity of performing ours, so long as we are able to do it.

2. If the King should not protect us, but neglect his part, though having power and ability to perform it, his voluntary neglect ought not to free us from the faithful performance of what is to be done on our part. How much less then ought we to think ourselves disobliged from our subjection, when the non-protection on his part is not from the want of will, but of power!

2. The latter, (wherein yet some have triumphed,) by saying, that the Parliament being the supreme judicatory of the kingdom, the King, wheresoever in person, is ever present there in his power, as in all other courts of justice; and that therefore whatsoever is done by them, is not done without the King, but by him. But

craving pardon first, if in things without our proper sphere we happen to speak unproperly or amiss, we must next crave leave to be still of the same mind we were, till it shall be made evident to our understandings, that the King is there in his power, as it is evident to our senses, that he is not there in his person: which, so far as our natural reason and small experience will serve us to judge, all that hath been said to that purpose can never do. For, first, to the point of presence: 1. We have been brought up in a belief, that for the making of laws the actual royal assent was simply necessary, and not only a virtual assent supposed to be included in the votes of the two Houses: otherwise, what use can be made of his negative voice? or what need to desire his royal assent to that which may be done as well without it?

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1 The old forms of Acts of Parliament were, "The King willeth, provideth, ordaineth, establisheth, granteth, &c. by the assent of Parliament," &c. See Statutes till 1 Hen. IV. After that, "The King, of the assent of the Lords spiritual and temporal, and at the special instance and request of the Commons of this realm, hath ordained," &c. See Statutes 1 Hen. IV. till 1 Hen. VII. A form of such petition of the Commons, see 1 Rich. III. 6. Praying the Commons in this present Parliament assembled, that where, &c. Please it therefore your Highness, by the advice and assent of the Lords spiritual and temporal in this your present Parliament assembled, and by the authority of the same, to ordain," &c.

"No Bill is an Act of Parliament, Ordinance, or Edict of Law, although both of the Houses agree unanimously in it, till it hath the royal assent." Ancient Customs, p. 54.

"Assemblée de ceux troys estats est appellée un Act de Parliament; car sans touts troys n'est auscun Act de Parl." Finch Nomotech. fol. 21.

"We admit that no Acts of Parliament are complete, or formally binding, without the King's assent." H. P. Answer to David Jenkins, p. 6.

2 "Which if your Majesty shall be pleased to adorn with your Majesty's royal assent, (without which it can neither be complete and perfect, nor-." Stat. 1 Jac. I.

2. The Statute1 providing that the King's assent to any Bill signified under his Great Seal, shall be to all intents of law as valid and effectual, as if he were personally present, doth clearly import, that, as to the effect of making a law, the King's power is not otherwise really present with the two Houses, than it appeareth either in his person or under his seal any other real presence is to us a riddle, not much unlike to that of Transubstantiation; an imaginary thing, rather devised to serve turns, than believed by those that are content to make use of it.

3. Such presence of the King there, when it shall be made appear to us, either from the writs whereby the members of both Houses are called together, or by the standing laws of the land, or by the acknowledged judgment and continued practice of former and later ages, or by any express from the King himself, clearly declaring his mind to that purpose, we shall then, as becometh us, acknowledge the same, and willingly submit thereunto.

And as for the argument drawn from the analogy of other courts, wherein the King's power is always supposed to be virtually present, under submission, we conceive it is of no consequence.

1. The arguments a minore and a majore are subject to many fallacies; and unless there be a parity of reason in every requisite respect between the things compared, will not hold good. A petty constable (they say) may do something which a justice of peace cannot do: and the steward of a petty manor hath power to administer an oath, which (as we are told) the House of Commons itself hath no power to do.

2. That the High Court of Parliament is the supreme judicatory, we have been told it is by virtue of the King's right of presiding there, he being the supreme Judge', and the members of both houses his council; which being so, the reason of difference is plain between that and other judicatories in sundry respects. 1. The Judges in other courts are deputed by him, and do all in his name, and by his authority; and therefore the presence of his power in those courts of ministerial jurisdiction is sufficient, his personal presence not necessary, neither hath he any personal vote therein at all. But in the High Court of Parliament, where the King himself is the supreme Judge, judging in his own name, and by his own authority, his power cannot be presumed to be really present, without either the actual presence of his person, or some virtual representation thereof signified under his Great Seal.

2. The Judges in inferior courts, because they are to act all in his name, and by his authority, do therefore take oaths of fidelity for the right exercising of judicature in their several places; sitting there, not by any proper interest of their own, but only in right of the King, whose Judges they are, and therefore they are called the King's Judges, and his Ministers. But in the High Court of Parliament, the Lords and Commons sit there in council with the King as supreme Judge, for the good of the whole realm; and therefore they are not called the King's Judges, but the King's Council; and

1 "Dominus Rex habet ordinariam jurisdictionem, dignitatem, et potestatem super omnes qui in regno suo sunt.-Ea quæ jurisdictionis sunt et pacis ad nullum pertinent nisi ad coronam et dignitatem regiam, nec a corona separari possunt." Bracton, cited by Stamford, lib. ii. cap. 2.

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