Riots or Insurrections how dangerous or great soever the Sheriffe and other ordinary Officers of Justice ought to be imployed in the businesse and those which are so imployed are to be directed solely by the Judges and Courts of the Land in speeding Law and not at all by any extrajudiciall command of the King in opposition to Law If these things were not so the King of England could not be restrained from doing wrong our Kings would be above all Law and the Law could have no power above them and if our Kings were above Lawes and not restraineable thereby from doing wrong the people of England were not a free people but as remedilesse Slaves as the Grand Signiors Vassells are Our Lawes provide against servitude in us but that were vaine if they did not provide also for efficacy in themselves in so much as Lawes if the King were above them and so might alter them at pleasure or interpret them according to his owne sence or could execute or not execute at discretion by being sole Master of the sword would be no better then Cobwebs to us By the light which reflects from these fundamentalls premised we shall now the better view and examine that which Mr. Jenkins replyes to the eight particulars of H. P. In the first particular the question is Whether the House of Commons have power to examine a Delinquent or no Mr Ienkins holds the negative upon this ground that they have neither the Kings Writ Patent nor Commission for it It was answered That they did both sit and act by the Kings Writ and something greater then the Kings Writ Mr Ienkins not being able to deny that the Parliament was summoned by the Kings Writ and that it is continued still by an Act passed since onely quarrells at the Act of continuance pretending that the Act by which this Parliament is continued agrees not with the Act passed lately for a Trienniall Parliament nor with that for an Annuall Parliament passed in Edw. the thirds time as also that it is mischievous otherwise by Protections Priviledges c. Is not this to quarrell with the King and both Houses Is not this to tell us that Mr. Ienkins is wiser then all the three Estates though joyned together The King the Lords and Commons judged that this Act did agree with the other two yet Mr. Ienkins judges contrary The King the Lords and Commons judged the advantage of this Act to be greater then any inconveniences Mr. Ienkins is of another minde Our Bookes have a Rule That no man ought to be wiser then Law Mr. Ienkins exempts himselfe out of this Rule but in the next place whatsoever the three Estates may doe yet Mr. Ienkins tells us that the two Houses make no Court nor Body Corporate nor Parliament without the King no more then a man remaines a man without a head Here is the mistake Mr. Ienkins thinkes the King is a head to the Parliament simpliciter or phisicè whereas he is so but secundum quid or metaphorisè for if he were such a head to the Politick Body as the true head is to the naturall Body the body could have no subsistence without him but experience in our case teaches us the contrary and we can easily calculate that if the whole Royall Line should be spent and the Crowne Escheat sitting a Parliament the Lords and Commons would remaine a living Parliament and be the supreame power of the Kingdome without a King Also if this should happen out of Parliament the Lords joyning with the chosen representants of the whole Kingdome would be equally as competent if not more for all Acts of Majesty and supreame dominion as now they are in Parliament Mr. Ienkins must needs also know that there are some Acts of Parliament yet of force in this Land which by the Lords and Commons were carried and consumnated not onely without but even against the King but I forbeare to draw Censure upon my selfe by citing them and whereas it was objected That the Parliament was in a meaner condition then other inferiour Courts if the Kings meere discretion could so make their deliberations voyd and vaine Mr. Ienkins replyes That this is most true and just for as much as in other Courts the King can neither judge nor controle but in the Court of Parliament quoad Acts the King is both Judge and Controller And why cannot the King judge and controle in the ordinary Courts because there they have the Kings power committed to them by Patent and as they are sworn to doe right so the King is sworne not to interrupt or frustrate them Thus 1 We see the Kings Patent to a few men is more vigorous then the most honourable Writ of the Law is when it is directed from the King to all the Peeres and Commons of the Land abetted besides with formall Statutes 2 We see an Oath taken from the Judges is of more valew then the faith and loyalty of the whole people 3 We see the King by his Coronation Oath is stronglier obliged not to obstruct Justice in private cases depending before lower Courts then the generall safety and welfare of the people in that Treshault Counsell which is so honourable that none ought to thinke ignobly of it 4 We must grant that Mr. Ienkins can better tell what the Law is in this point then both Houses 5 Whereas an Argument Ab inconvenienti was valid in Law before now an Argument drawne from the safety and liberty of the whole State and from the end of all Law is made rediculous by Mr. Ienkins for he which grants we are borne to liberty and safety as our right yet grants no meanes to attaine to that right nor remedy to recover it except the Kings Grace and even then the Grand Seigniours Subjects have their Masters grace and discretion to depend upon as well as we Thus is our state like a goodly Ship exquisitely decord strongly man'd and abundantly riggd with all kinde of Tackling and so built for agility in faire weather that nothing in that respect can be added to her perfection yet still she is so moulded by these kinde of Royalists that the least foule weather over-sets her We have excellent Lawes to secure our proprieties against the Crowne we have excellent Priviledges in Parliaments to secure our Lawes against the Judges and other Ministers of the Crowne and yet neverthelesse the Parliament it self is so discontinuable dissolvable and controllable by the Crown that our all which depends upon it has nothing in the last place to make it self good to us but the favour of the Crowne Thus may our Lawes and Priviledges in which there is acknowledged to be a directive but no coactive force over the King be compared to an imaginary Mathematicall Line in the heavens but not to any fence or circumvallation upon the earth Well may they informe the King what we ought to injoy as the Lawes of God and nature without them do to all
THE CORDIALL OF Mr. David Ienkins OR HIS REPLY To H. P. Barrester of Lincolnes-Inne ANSWERED LONDON Printed for Robert Bostock dwelling in Pauls Church-yard at the signe of the Kings Head 1647. Master JENKINS his REPLY Answered IN all the Papers which M J. weekly almost publishes to slander and condemne the Parliament of Rebellion Perjury Oppression Cozenage c. his maine artifice and that which most infects the people is his blending and confounding things together which are in nature different and by all meanes ought to be discriminated In three things especially his want of ingenuity is most obvious and his not distinguishing most advantagious to him For first He puts no difference betwixt that latitude of power which is due to a just just in just things and when he pursues the true interest of his people and that power which consists in doing wrong And yet nothing is more notorious then this that the Kings of England have vast Prerogatives in doing good but none at all to do any man much lesse the whole State harme Secondly He distinguishes not betwixt those actions of the Subject which are done in times of necessity and upon extraordinary extremities and those which are done in ordinary times when there is no speciall emergent cause to inforce them Thirdly He compares not the smaller matters of the Law with the weightier but attributes to both alike nay when both 〈◊〉 consist or take place at the same time he makes the weightier Law give way to that which is of lesse consequence and may be reckoned inter apices juris The Law will admit of a private mischiefe rather then a publike inconvenience as nature will suffer this particular quantity of water contrary to its owne propenfity to be violented and rapt upwards rather then that any vacuity should be in the universe But M. J. sometimes will indure publike mischiefe rather then private inconveniences he will rather allow that Salus Populi shall be opposed then such or such a branch of Prerogative or the propriety of the Subject should be strained Law is not so dull a study as some men would have it nor are its bounds restrained to the ordinary actions and pleas of J. a Nokes and J. a Stiles about a carve of ground c. no the profession is farre more noble and as its basis is reason improved with Logick so its pyramis is policy crowned with History and Philosophy That Lawyer therefore that will argue upon this high subject which M. J. now undertakes ought to roote himself deeper before he begins to build up his argument and to take notice of these premisses 1. That all men who are qualified and exalted to beare rule in a spheare above other men are so dignified and differenced by some Commission which Commission must be granted by man immediately or else by God extraordinarily and immediately 2. That in this age which knowes of no Oracles or miracles remaining God does not immediately and otherwise then by the same providence as rules in other humane affaires either designe the persons or distinguish the Prerogative of any Kings or Potentate God is not said more properly to promote to the Crowne of England Edward the fourth then Henry the sixth nor to make a King of France more unlimitable then a King of England These things are left to men the same providence of God attending them as attends other matters Yea the Scripture is most cleare in this that when God by immediate and extraordinary orders from heaven did interpose in designing Saul to the Throne of Israel yet he did it by lottery and did it so that Saul might be said elected and constituted by the people as well as designed by God And indeed since all Princes whether hereditary or elective whether more absolute or more conditionate whether inthroned by just Title or by tortion and meere force have Commissions equally from Heaven How can we thinke that Heaven acts immediately alike in all since Cyrus is as well Gods anoynted in those Provinces which he wins by the sword as in those which come to him by descent and the French King is as truly Gods Vicegerent now in France as Charles whom he has intruded upon is in England and since the King of Spaine by speciall Law of Heaven can claime no larger supremacy in Castile then in Burgundy in Naples then in Arragon what an unreasonable thing is it to ascribe all these devolutions of rule and variations of power to the immediate hand of God which changes not rather then to the acts of men which are seldome permanent 3. That if we will suppose that Princes Commissions are all immediately drawne and signed by God yet we cannot suppose that Gods Commission ever inabled any man to do injury his charge to all Kings is contrary and does inhibite all insolence in comportment nay even all elation of heart And for man so far as Princes are inaugurated upon earth we see by experience they all almost have their visible Terries and Boundaries set to them and it were most unnaturall if the intendment of all humane Lawes should not referre to the safety of the people 4. That if any obscurity or ambiguity be in other Lawes yet in the Lawes of England there is none at all All our Books proclaime our Nation to be a free Nation and our Kings to be limited from doing any wrong And because there may be dispute about the interpretation of these generalls therefore particulars are deduced out of them and our Lawes do not onely declare us free but wherein our freedome consists nor do they binde the King from wrong but specifie withall what is wrong to the Subject If the King arbitrarily change our Lawes raise Subsidies impose Taxes imprison our bodies deny delay or sell justice to us this is declared to be wrong and inconsistant with our freedome And if any question arise about our Charters the King himself cannot interpret or sit as Judge he is in all cases taken to be a party and so incompetent to sit as Judge His sworne Judges are to do right betwixt him and the Subject out of Parliament and the two Estates are to do right above the Judges if need be in Parliament And in case of any perplexity or doubt the liberty and safety of the people is to be preferred before the Prerogative of the King and all interpretations must rather favour that interest which is generall then that which is particular And for the Military power of England as the King ought not to use any other then the naturall Liege people of England in his Warres so neither can he presse the people of England to serve in his Warres at discretion If the Warre be forraigne or against a forraigne power the Parliament ought to be consulted in it but if force be to be used against Subiects that force is to be meerely sub-servient to Law and whether it be to execute ordinary Judgements or to suppresse
wel that whosoever is the Supreme judge of the Law if not directly yet he is consequentially above all Laws and whosoever is above all Law cannot bee restrained by the safety of the people though the most sublime of all Laws Wherfore if this be admitted true of our King that he is Supreme Judge of Law then it must follow that the Subject of England has no more assurance of Law or safety then what is founded onely in the Kings breast and discretion For the Kings being a prisoner that has been already answered and indeed it is is more truly said that his hands are held and disweapond then that his feet are fetterd or his head undiademnd Then for the Parliaments acting by the Kings writ there ought to bee some mistakes cleered therein also for we doe grant that the writ is the Kings the Great Seale is the Kings that Officer which has the Custodie thereof is the Kings the People are the Kings but we doe not grant that any of these are so the Kings as that they are not the Kingdomes also in a more eminent degree for as the Husband is the Wifes truly but not 〈◊〉 eminently as the Wife is the Husbands so the Kingdome is the Kings and the King is the Kingdomes yet the Kingdomes interest and relation far is more valuable and sublime 8. The last particular now offers it selfe in the close of all and here M. Ienkins does not deny expresly that many things may be good in Law notwithstanding that some formalities or those things which we terme apices Iuris are wanting for doubtlesse where 2 Laws are and both cannot be fulfilled the lesse important Law though it be more particular must give way to the more important Law though more generall ex gr. when the King dies by the common Law in force Parl. cease all judges Sheriffs Officers not absolutely necessary c. return to a private condition and so remaine till new Commissions obtained but if the new King happen to be beyond sea as at the death of Hen. 3. so that new Commissions cannot be immediatly granted and thereupon the greater Law of publick safety is brought into competition with the Law of an inferiour nature a new seal may be made new Judges new Officers may be created and either a former Parl. may be continued or a new one suÌ„mond and all necessary points of complete administration may bee expedited as in probality they were before the arrivall of Ed. 1. God did not make any particular dispensation his shew-bread might be eaten by common persons if in distresse or the golden vessells of his Temple aliend when the City was to be redeemed from the insolence and rapines of a prevailing Enemy the generall Law of necessity was sufficient to warrant both the one and the other but I will presse this no further since M. Ienkins alledges nothing to shew why a Parl. which cannot deliver it selfe by an Act may not use meanes to deliver it selfe by an Ordinance I will not insist further hereupon But instead of disputing M. Ienkins seems to jeere 〈◊〉 for setting up Excise raising Armes Taxing the people imprisoning the King abolishing the Common Prayer Book selling Church-Lands c. and in an irony he concludes that all these are in order to publick justice and safetie M. Ienkins here leaves us upon uncertainties whether he condemnes our Cause because it required such props or onely these props because they assisted us in promoting so bad a cause If he allow of the ends but not of the meanes if he allow we may defend the Lawes and safetie of the State but not by Armes or if he allow of Armes but not of Taxes c. He must renounce rule naturall as well as logicall Qui dat finem dat media conâ—â— centia ad finem If he allow of the meanes but not as conducting to such an end upon presumption that our Lawes and the Scâ—â— were not indanger'd or if he prove that they may not be defended he takes upon him more then is due for his part is to plead not to judge and answers might be given to his pleading but nothing can be said to his judging I conclude therefore with the L. Cookes Sensure of Treason as M. Ienkins does and am of the same opinion that Treason ever produces fatall and finall destruction to the offendor and never attaines to its desired ends and wish that all men for this Cause would serve God honour the King and have no company with the Seditious Yet let me adde this we have neighbours now in the Netherlands that lately have revolted from their Master and yet prosper and flourish beyond all in Europe the justice of their revolt may be questioned by some but I for divers reasons do not question it one amongst the rest is this of the L. Cookes because I think an act meerly treasonable cannot prosper FINIS