is not worthy to be trusted and by consequence openly proclaime that he is unworthy to be King 16 If the so called Malignant party should chance to be the prevailing part in the houses The King puts the case in his Answer to the Declaration of the 26 of May pag. 8. and should alleadge that through the precipitancy of some mens pretended zeale the Kingdom were like to run into confusion for such a case may be and Conspiracy for pretended Reformation was the Title and Argument of a Book many yeers since and therefore must be safely secured and presuming the King favours that side and not liking the course that he will take to secure the Kingdom they should vote it lawfull for them to doe it themselves without him must this presently be concluded to be the judgement of the whole Kingdome and to be according to Law when no law can be produced and the King to bee ill-affected to his best Subjects or to be misled by evill Counsellours to undoe himselfe and all his Kingdome by not yielding to the advise of his great Counsell or will the Adverse part take it well to be reputed Enemyes to the State a malignant Party evill Counsellors c If not It were but meet that the substantiall differences of the case were so well opened that they that desire to know what is iust and right might tell where to find it and that all men of moderate Capacity and Ingenuity might cleerly see the Infallibility of the one party and the Hypocrify of the other 17 When the Forts Magazines Navy Offices c. are said to be intrusted to the King or the King intrusted with them for the good of the Kingdome The fence of the word Intrusted in this place would be cleered Not to question whether the King have these things by way of Trust from the people it will be of all granted as it is by the King himselfe that God the Law have trusted him with them and that for the good of the Kingdom and so to imploy them he is further tyed by his Oath But there is a twofold trust one that is Absolute and unlimited otherwise then that the end is specified supposed or presumed end not so much limiting the Trust as the Trust denoting implying the end And there is a Trust conditionate and circumscribed in such sort that to faile in the performance is to forfeit the Trust The first gives a man a right to the thing intrusted The second gives him only a right to the trust of the thing I conceive the Kings Trust is of the first kind who being presumed to mean All good to his people according to the Maxime in Politicks No evill ought to be imagined of the King hath these things frankly and absolutely committed to his Governance and disposing And however he shall order them I suppose he is accountable to no man nor questionable by any unlesse he cleerely publickly and undoubtedly dispose of them to the ruine of his Kingdom and so puts the people to an evident extremity or lawlesse necessity If there be any limits the Law should expresse them For he being Supream there is no other power to impose them Neither are the actions of his Ministers to be censured unlesse by them the known Lawes have bin violated If this Trust must be managed or regulated by both Houses of Parliament First that Power should be made appear to the King and the People and then there must either be a standing Court of Parliament or else one must be called so oft as the King shall have occasion to send out Ships take out or put in powder or Amunition into his Magazines chuse any Officers c. which is uncouth to coÌ„ceive If a man having confidence of his Friend shall say to him Sir I will freely give up my whole estate into your hands only you shall sweare you will be a Father to my Children here is implication of a Trust and yet a clean right in the thing so that he may set or sell build or pull down give or lend and yet be accountable to none nor falsifie his Trust so long as the Children want nothing yea and if he failâ— of the trust perhaps some Court of Conscience may relieve them but I believe no positive Law can controule him The case is otherwise with Feoffees or Executors in Trust who have a right only to the Trust and none to the thing intrusted which is wholly the Heires the poor's or Legatiries to whom it was bequeathed 18 The Kings and Subjects interests are mutuall He refers to every subject and every subject unto him as the Lines from the Centre to the Circle And what interest he hath in one he hath in another and in all as well as in any And his interest in them is of an higher Alloy and more noble As command iâ— then subjection The interest of protection is motuall The 〈◊〉 is that all the people are more worth then the King but King people and more worth then either 19 Personall differences of wisdome of folly weaknesse or strength courage or cowardise meanesse or excellency of parts or arts make no difference in the Right of the King though they show a great difference in Gods dealing with the Kingdome 20 When a King playes the Tyrant or usurps upon his peoples just Liberties I conceive it must be either first by a violent suppression of old Laws and Customes yet in force or seâ—ondly by a wilfull obtrusion of new Laws by force or thirdly by a wicked oppression by force without Law When therefore Tyranny is imputed to or implyed in a prince of or against whom we ought not lightly to thinke any evill or receive any accusation it will become Christians thoroughly to examine upon what points he is convinced and not to take up such reports by whole sale and in grosâ—â— 21 If the King have not a Negative he seems not to have so much power in Parliamentary Acts as one common Burgesse For if the Voyce be even before that Burgesses may be the casting voyce of the House and I see not so much as a vote allowed his Majesty 22 When the King shall think it not fit to give his consent to what the major part of Parliament shall agree upon He is not barely to be considered as one single man against so many For besides his Privy Counsell at hand men accustomed to and experienced in matters of State and besides that possibly a very great number of both Houses are also of the Kings mind we are to consider the King as one best acquainted with the Rules and Mysteries of Government being as it were the Trade to and is which he hath bin born bred and brought up And therefore is presumed alone to see further into it then many others together For besides that God hath a speciall way of communicating wisdom to Kings in which regard A mise sentence is said to be in the lips of the King Prov. 16.10 And the heart of Kings is unsearchable Prov. 25.3 Hystories make it plain that there are Arâ—dya Imperij and Militiâ— which the King and Captains apprehend when a thousand doe not and which perhaps may not be fit for all men nay not for any man else to know 23 When an Adult and Prudent Prince shall owne approve of and protect such and such Persons as his tryed and known Friends or Counsellours If Any under what pretence soever of their suggesting evill Counsell when no evill practices are apparent yea when such Councels and Practices are utterly disavowed and abjured by the King shall presume not only without the Kings consent but against his expresse Command to take up Armes to destroy and take off such Persons though no Evill quod absit be intended against his Person And yet who can tell what is in his heart that comes towards a man with a drawn sword in his hand â— I see not what Distinction can help but that such Arms are taken not for but against the King Otherwise how can any thing be said to be done against God who being inviolable in his Person cannot otherwise be resisted then by the blaspheming of his Name breaking his Commands rejecting his Motions prosecuting and perfecuting his Servants c. 24 When it is said The King was made for the people and not the people for the King besides that the Comparison is as idle as that of the Members against the Belly in the Apologue the Apostle hath met with it 1 Cor. 12. it is also not absolutly true For the King was no more made a man for others theÌ„ they were for him nor made a King more for the good and safety of the People then the people were put into such a posture of order obedienche that e might be safe as well as They yea rather He then Any if not then many of them as being supposed the chiefest among them The sense wherein it seems best to hold is That The King was made for the need or necessity of the people and not They for his Viz. He can more securely be no King then the People can be without a King And He takes the surrender of their Power with the Dependances and Consequences not as a kindnesse from Them but as doing a kindnesse to Them as is implyed in the refusall of the Vine Fig-tree and Olive-tree to rule over the rest in Jotham's Parable Judg. 9.7 c. and in the History of Jepthah Judges 11.4 c. For on him They unload their Cares and Feares who forgoes his Own private Ease and Quiet that He may procure it to his People Himselfe taking care that all men else may live without Care Now on whom the Necessity lyeth most on Them lyes the greatest Obligation to respect Therefore Saint Paul requires giving of thanks for Kings 1 Tim. 2.2 So may we say a Captain a Pilot a Physician a Schoolmaster were made for the need of their Correlates which should render Them more honourable and rather draw respects to Them then challenge greater observance from Them Iudge Righteous Iudgment FINIS
such as now are supposed the Kingdome is to be put into a posture of defence against Forraigne Invasion or Domestick Tumult and Rebellion By Law and Custome the King is to order it And so much is acknowledged by the present Parliament in their Reply to the Kings Answer of the 29. of January where speaking of the Forts and Castles of the Kingdome they have these words viz. We confesse the nomination of any person to those places being so principall and inseparable a Flower of your Crowne vested in you and derived to you from your Ancestours by the fundamentall Laws of the Kingdome you may reserve to your selfe And anon after speaking of the Militia They say Which Militia â—e likewise acknowledge by the Law is subject to no command but of your Majestie and of Authority lawfully derived from you Now the King carefully applying himselfe to it I see not what necessity or disobliging extremity can justly be alleadged to dispossesse him of it when he is not convinced to have failed in his duty To doubt that he will faile is not to prove that he hath but rather that yet hee hath not done it If the Enemie were landed or the Subjects assaulted which are degrees beyond our dangers at least when this fell first into debate the ordering of defence would be still in the King unlesse where particular outrages enforced particular places to the defence of themselves by the law of Necessitie which awaiteth no Lawes But if the King bee regardlesse of his Trust and his peoples safety and let the Enemy graze along his Kingdome or any of his Ministers prove false to the State and either take with a Forraigne or become themselves a home Enemy and the King strive not to suppresse them or all which far be it to imagine do animate and incite them to despoyle his good Subjects Then and I suppose not till then is the danger in extremity and then is the plea just for the Lawes of necessity which doe not only enable the State in common but every man in particular to seeke the preservation of himselfe and of his Countrey by all such wayes as stand not in opposition to the Law of God 11 When I protest to defend the power and priviledges of Parliament It is but so far as lawfully I may and so far as I know them or ought to know them being easy to be knowne viz. such as by Custome and unanimous Consent have obtained as unquestionable not such as are quarrelled among themselves some claiming and others gainsaying nor such as are challenged without or against the King who being part of the Parliament ought to have Consent in the concluding of Priviledges at least ought not to be unpriviledged without his consent whose priviledges are protested for as well as and with the rest and the defence of them sworne to in the oath of Supremacy Where wee sweare to our power to assist and defend all Iurisdiction priviledge preheminence and Authority graunted or belonging to the Kings Highnes his Heires c. If the disposing of the Navy Forts Magazines and Militia bee as t is confessed they are by the Law of the Land the Priviledge of the King there can be no distinction to my apprehension imagined upon any feares or iealousies whatsoever where no evill is by him actually practised and all intentions of evill are absolutely abjured to warrant any men few or moe in Parliament or out of Parliament who have taken that Oath to dispossesse him of them or detaine them from him in what manner soever hee shall come to demand them For the Oath is peremptory and unlimited non est distinguendum ubi lex non distinguit To say they are detained for him not from him might have some colour if the King were either a child distracted or Weake minded But to an adult and understanding Prince such a pretence is a higher derogation by disparaging his wisdome or fidelity 12 Where power is invested in any and by custome and free consent of all is made hereditary I concâ—ave it cannot afterwards be limited with other conditions then at first were agreed on without the consent of him that hath it 13 That which is certainly lawfull and but doubtfully dangerous is to be chosen rather then that which is not certainly lawfull and but doubtfully safe When A man offers no violence though upon good reason I feare he will hurt me to let his sword alone is certainly lawfull and but doubtfully dangerous To wrest it from him when he makes no assault is not certainly lawfull but rather certainly unlawfull and but doubtfully safe or rather undoubtedly dangerous for by that occasion a quarrell may be made and bloud shed which might otherwise possibly at least have bin saved I would the application were not easie 14 If a man being illegally dispossessed of his right doe in heat of contention use some illegall meanes for the recovery of it that is not to be drawne into argument to justifie the illegallity of the first usurpation If a man unassaulted wrest my sword from me and I afterwards beat him he may not draw my after-beating into argument to justifie his taking my sword from mee 15 When the envy of not yeilding to the advise of his great Councell is cast upon his Majestie It is fit to set the case upon its owne leggs It seemes by many passages in the observations and other bookes and by more then Booke-passages that the King is esteemed a Tyrant over his people For what else is implyed in the distrusting and Vilepending of his Oathes Obtestations Imprecations Execrations In reputing the Attendance and Company about him whom he ownes and protects Enemyes to the State in raising at least defensive Armes in seizing his Navy Shutting the Towne Gates against him and possessing his Forts and Magazines against his Command For will a man wrest anothers sworde from him if he do not presume he will draw it upon him Nay is it lawfull to take any mans sword if any mans then till it be drawne upon him or some violence offered him or threats given him If it be said then it is too late it may as well be said till Then it is too soone Now then When they are so opinioned and jealous of the Kings love and fidelity how can it be imagined that he should looke on them as Ingenuous and Equall Counsellours and not be as distrustfull of the sincerity of their advise For how shall I perswade another to be directed by me as his friend when I give him to understand that I take him for mine Enemy that intends mischeife against me especially when the matter is not of ordinary concernment wherein each one 's Rights are left free and untouched but such as trencheth deep into his Majesties Prerogative and tendeth not only to the spanning of his power but mainly also to the quenching of his honour whilst by yeilding to such advise he must tacitely confesse that he
seems implyed by the sitting of the Judges in the house who for ought I heare have no other office there but to advise or advertise in point of Law 7 When it is said that the judgment of the major part of both houses is the judgment of the Parliament and consequently of the Kingdom I conceive it is not rightly affirmed For besides that the judgment of the Clergy is not so much as in a shadow there represented who are a considerable part of the Kingdome and should be presumed to have as good judgment and be as good men as others I resigne not my judgment but obedience to the Parliament and not barely to the Burgesses of my own Town whom perhaps I think very unfit and who were chosen against my will but to the result determinations of both houses and not to them only neither but as all are allowed confirmed and perfected by the Kings assent For I am represented in the Commons but as subordinate to the King and to joyn with the King and the Lords not without or against both or either of them to make Lawes for the good of the Kingdom So that when the Act is made by the concurrence of all three States then and I suppose not till then it becomes obligatory and as a peaceable Subject I must obey if it be lawfull before God though my judgment be still free and at home and I do think it inexpedient as the Negative part of Votes do For it is impossible and against Reason and Nature that an understanding Mans judgement backt with strength of Argument should bee led captive meerly by the ods of two or three voices 8 The major part of the houses being that part which exceeds the other though but by three or foure voices shall not that Law which is concluded only by the advantage of those voices without the Kings consent be a Lesbian Rule or a Nose of wax which upon a second Vote may passe the contrary way upon a casuall absence or presence of so small a number The Law is a strait Rule and always like it selfe If such or such a thing be Law after it was so voted by the major part of the houses it was Law before it was so voted unlesse an absolute power of New-law-making be in such a Vote and so might be put in execution without a new voting only the Law ought to be produced If the major part of the Votes of both Houses be only Declarative of the Law then in reason the first Voting should stand or else this will bee a very uncertaine rule And so the case of ordering the Militia should not be according to Law because it was first and twice countervoted by the House of Lords Such broad and obvious exceptions ought in matters of so high concernment to be fully cleered and removed 9. When the question is Who shall be Iudge of Law I conceive it must bee meant either of the sence of particular Laws or of the latitude and scope of the Law in generall If of the first I suppose the sence will appeare either first By the cleere light it hath in it selfe as the Sun shewes its own light or secondly By references to other Laws or clauses touching the same argument which are more perspicuous Or thirdly By the usance and practice which is the life of Laws If none of these can make it plain in my judgement it becomes no Law but is obsolete until a ful sence be agreed on again by that ful Authority which first made the Law Otherwise I see not how any rule for declaring of Law can be alwayes absolutely determinative For besides that the same thing is at divers votings diversly voted If the Votes of either House should chance as possibly they may to be equally divided and the major part of both Houses severally be necessarily required to determine where shall the determination be when the Votes of one at least are equally ballanced Unlesse we fly to a third way viz. the major part of both Houses in grosse where the exception lyes as full because even then also they may chance to be equall If it be understood of the Second then that Latitude or Scope ought to be evinced frome some Termes in the Law expressed which termes are to be produced and not from the pleasure of any who shall say that is lawfull which seems so to them especially when they make themselves the sole Judges of Law and Equity For whither will not such a liberty reach A Transition is so made à genere ad genus from positive law to the law of reason and that being various according to diversity of apprehensions cannot bee imposed upon all where the full Legislative power is not concurrent And I conceive it is no◠properly said That in extreame danger I may by Law doe that which otherwise I may not do but that in such a case I may doe that and be excused which by Law I cannot doe As in an assault I thinke the Law doth not say you may kill a man or take away his weapon but if you doe it The Law will not punish you because it is against all reason that where the Law affords me no help it should not hold me excused for helping my selfe when Necessity which hath no law is so pressing that otherwise I must perish 10 When necessitie and extream danger are made the grounds for otherwise doubtfull and dangerous undertakings it were meet those Termes were rightly defined that so we might cleerly see the foundnesse of our warrant I conceive it to be when a man is so presently distressed that hee can make no possible use of any positive law to helpe him and so becomes in a sort disobliged from it and left free to the law of Nature which prompts every thing to seeke the preservation of it selfe This necessity dispenceth with ordinary duties both to God and man But we must be sure of the necessity before we assume the liberty If a man steale and plead necessity he shall not be excused because the Law hath not left him remedilesse in his want I may not take anothers sword from him because I have cause to feare he will hurt me nor the sword that I have lent one though he hath threatned to kill me so long as he drawes it not upon me nor offereth force unto me Because I have yet a remedy by law and may bind him to the Peace c. And then much lesse may I wrest his away that hath sworne to defend me When necessity is but supposed no Simple and absolute necessity is confessed and so no law under pretence of necessitie is yet to be violated The Kingdome may be in danger and yet the danger not extreame nor any necessity such but that it may bee preserved by ordinary defence or if the danger be urgent we may not seeke to prevent that without Law which by law is well provided for already In great dangers