above those provocations which were pretended by the two Spencers 3. The Spencers by pretext of governing in aide of the King intended to oppresse all the Nobility Gentry Communaltie of the Land but this is impossible to be suspected in a Parliament which consists of the choice and are a considerable part of all these 5. The 5. particular now offers it selfe wherein Mr. Ienkins maintaines that every King of England and only the King in England can grant pardons and that in all cases and for this he cites Stanfords pleas 99. It was not nor is denied to M. Ienkins that the Kings of England have power to pardon delinquencies so farre as themselves are parties suffering But the question is whether the Kings of England onely can and alwayes can pardon delinquencies and whatsoever Master Ienkins thinkes the authorities of Stanford and Dier are not full to prove the affirmative and certainly if it were proprium quarto modo for the Kings of England to pardon in all cases it were very unproper for generall acts of indemnity to be passed by all three estates frustra fit per plura quod fieri potest per pauciora if one of the estates be sufficient to what purpose doe the other 2 concurre Secondly all remedy by appeale would be cut off from subjects For either my appeale must make void the Kings pardon or if the Kings pardon be not void in this case and as to this murder committed my appeale must be dismissed It had been candid in Mr. Ienkins if he would have replied some thing to this objection about appeales for now it may be supposed he replied nothing therein because he could reply nothing to the purpose besides if the Kings pardon cannot frustrat my appeale as Mr. Ienkins knowes well it cannot why should the same destroy the remedy and justice that is due to a whole state Treason may be committed against the State aswell as against the King even as murder may damnifie me aswell as the King and shall it be held lesse contrary to justice that the State should be deprived of its remedy by the Kings pardon then that I should Good Mr. Ienkins policy is not to be superseded by Law but Law is to be improved by policie and as in quiet times and private cases 't is safer to follow Law then Policy so in times of troubles and in affairs of generall and great concernment 't is safer to observe Policy then Law The same may be said of not pardoning for doubtlesse the King has as much latitude to refuse as to grant pardon yet when his power in either may be mischievous his power in both must submit to reason of State and Law is not violated but better improved when true reason of State takes place above it 6. I am now to proceed to the sixth particular where Mr. Ienkins will not indure that the King shall be said to retain the right or habit of governing at the same time when he is said not to be actually in a condition to govern he intimates that the Law makes no such distinction infers ubi lex non distinguit non est distinguendum by this it should seem it is not allowable that a Lawyer should make use of any distinctions for which he has not some book authority though the difference of things be never so pregnant A miserable confinement to Lawyers and sure 4 or 500 years past if Lawyers had been so confined wee had now left us no prints of any distinctions at all All other Schollars besides Lawyers nay all Lawyers that are not meer Lawyers I meane by meer Lawyers such as have made no improvement of their reason by Logick Policie and other humane literature are of a contrary opinion and hold it more true qui bene distinguit bene docet But what a ridiculous thing is this because Hen. 6. lying in his cradle not able to speak write read or do any act of power has a right to governe therefore I must grant hee is in a condition to govern for feare of distinguishing when the Law does not distinguish so of Edw. 2. and Ri. 2. because they had a right to the Crown in that moment of time when they abdicated the same and pronounced themselves unfit to governe therefore I am obliged to believe that they were not abdicated nor made unfit for government Next Mr. Ienkins likes not this distinction that the King is not barred simply from returning to his Parliament though he be barred secundum quid that is from returning unreconciled or armed against his Parliament hee professes that he and the whole City knowes the contrary how the City should know the Parliaments intentions so exquisitly or M. Ienkins be assur'd of the Cities knowledge so infallably I cannot imagine but I wish M. Ienkins which takes upon him to be a Priest as well as a Lawyer by vertue of Iustinians Commission were such a Priest indeed as that we might expect nothing but knowledge and truth from his lips 7. The seventh particular comes now in order where M. Ienkins puts us in minde of the oath of Supremacy taken by all members of the House at their first sitting and askes H. P. why he stiles the King Supreme governour in all all causes and over all persons c. and leaves out onely Supreme surely not to detract any thing from the Kings celsitude but because the word seemed superfluous for he that swears the King to be Supreme over all persons sweares him to bee only Supreme over all persons inasmuch as there cannot be more Supreme persons over all then one but away with these frivolous logomachies The argument runs thus If the King be only Supreme governour in all causes then in Parliament causes if over all persons then over both Houses and if so then how is he become a prisoner and how doe the Houses Act by vertue of their prisoners writ It was answered before that the King is granted to be Supreme or only Supreme over all persons but yet still {non-Roman} {non-Roman} {non-Roman} {non-Roman} {non-Roman} and not beyond the Law nor beyond that community for which and by which the Laws themselves were made The Duke of Venice the like may be said also of all elective conditionate Kings and Potentates has no person in any cause whatsoever superior or equall to him yet he has his bounds set him by the Law and as the Law is above him whom it bounds so that power which can make and alter Law in Venice is above the Law it selfe M. Ienkins himselfe confesses that the King is not above the Law nor above the safety of the people but in regard that the King is Supreme in all causes aswell Parliamentary as other and over all persons aswell the Lords and Commons in Parliament as others M. Ienkins supposes there is no other Judge of the Law safety of the people but the K. but this is not to be admitted by us because we know
in cases of pardons the King should be thought to be vertually in the two Houses for as much as that power he sayes remaines solely in the King and therefore cannot rest at all in the two Houses That the power of pardoning Delinquents is so in the King solely as that he cannot derive the same to the Parliament as he does his other power is not proved by Mr. Ienkins nor can it be possibly proved and that the King does not derive the same as he does his other is as farre from being proved also for doubtlesse in all Acts of Oblivion the two Houses convey an additionall vigor and so make the Acts more vertuous then the Kings meere Act could doe and therefore this new vigour which is conveyed by the Houses if it be not that which is derived from the King as Mr. Ienkins Tenets deny then it flowes naturally and originally from the two Houses and what can Mr. Ienkins cause gaine by this But sayes Mr. Ienkin The King is a Prisoner and so having no power but what is divested by his imprisonment the power of the Houses is usurped by themselves and not derived by the King The block which Mr. Ienkens here stumbles at is this He thinkes an imprisoned King has no power at all or remaines indeed no King but this is not absolutely true of all Kings imprisoned for as our case is either imprisonment is something more then that which our King suffers or else imprisonment as to some Acts may stand with freedome as to other Acts. I have toucht upon this subject already But let Master Ienkins bee as bitter as he pleases in his censures and reproaches 't is not intended by the two Houses that the King should be disabled from doing any acts of justice and piety 't is only from raising new Forces and begetting new concussions that this new guard desires to prevent him Master Ienkins next sayes that the King may revoke and discharge his Commissions at pleasure but what of this the question is whether or no the King may frustrate and elude his Commissions and this Master Ienkins speakes not directly to Wee need not quarrell therefore further about this we will grant to Master Ienkins that Parliaments may be justly determined and dissolved by our King provided he will grant to us that the same may be justly frustrated or eluded But Master Ienkins stomacks much at our calling the two Houses a Parliament and censures it in us as a great delusion although we know well that nothing is more common in speech then to say that the King cals his Parliaments writes to his Parliaments dissolves his Parliaments c. The King must be taken abstracted from that which he cals writes to and dissolves or else wee must consider him calling himselfe writing to himself dissolving himselfe which cannot be without absurdity Besides when we speake of the great Councell of the Kingdome we meane the Parliament abstracted from the King forasmuch as the King in Parliament does not so properly give as receive Counsell and why we may not aswell call the two Houses a Parliament as the great Councell treshault Court or mickle-gemot of the King and Kingdome I cannot devise The Law sayes the King cannot be absent from his Parliaament this must be meant authoritatively not personally for divers of our Kings have been in France sitting Parliaments here and yet even they were politically present though physically absent as Master Ienkins himselfe must needs grant Now if the Parliament be the Kings Court or Councell and such a Court or Councell as he cannot virtually bee absent from though in person he be often distant and at some time must not be otherwise how can it be maintained by Master Ienkins that the two Houses are not the Parliament Another objection of Master Ienkins against the two Houses is that they were deserted by divers of their own Members who in considerable numbers went to the King at Oxford but this is no other objection then might be made against the Husband when the wife elopes and withdraws from his bed shall that party which remaines constant and attends duly at the place assigned in the summons for transacting of that businesse which was specified in the summons suffer for that parties sake which proved inconstant and neither observed the place nor businesse of the writ by which it was convened sure this is most unreasonable doubtlesse when the King cald these uncertaine members mungrels who together with their whole faction would neither be cordially true to Religion and Liberty at London nor totally consent to subvert them at Oxford hee had more reason on his side then Master Ienkins has who disparages those that kept their stations because of the defection of their mungrell brethren In the last place Master Ienkins though he confesses that the common Law did alwayes restrain our Kings from all tallages subsidies but by consent in Parliament as doth appeare by Magna Charta yet he sayes this is no consequence because the King cannot take the subjects good at pleasure therefore the Commons have a concurrent power with the King in Parliament indeed this consequence is ill-framed but in its right forme it appears thus if the Commons in Parliament have that great power to raise treasure out of the whole Kingdome which the King has not our of Parliament then they must deduce this power from themselves or those whom they represent and not from the King who cannot give that which he has not in himselfe but so it is that the Commons have this power Ergo If Mr. Ienkins will answer this hee shall befriend my intellect The last objection which Master Ienkins makes against this concurrent power of the Commons in granting subsidies is this that Parliaments may be held and be complete Parliaments without subsidies and hereupon he tels us that former Parliaments rarely granted any unlesse in time of forrain-Warres and Q. Eliz. refused a subsidie granted K. Ia. in his first year had none granted him Is there any solidity in this objection I appeal to all ingenuous men Parliaments may be without subsidies Ergo the granting of subsidies is no act of power in Parliaments or thus giving of subsidies is an Act of power in Parl. but since at some-time it may be difused and intermitted or a power that at some-times is not reduced into acts therefore it is no power or not inherent in the people but onely derivative from the King Let Master Ienkins apply his owne words to himselfe here for certainly hee ought to make a conscience of blinding the people with such untrue colours to the ruine of King and Kingdome 3. The third particular now offers it selâ—â—â—n order and here Master Ienkins his reply ought to prove that if the two Houses had a Parliamentary power in themselves they needed not send Propositions to the King but instead of opposing this which was the only thing made good by his answerer he diverts
a strong ascent towards the fruit of his body but weake and virtulesse is the descent of that juice which falls from the branches to the root or of that love which the sonne refunds upon his progenitors and even so it is in the relative Offices of Prince and Subject the Prince lookes lesse tenderly upon the people as being his root or parent whilst yet the people lookes more tenderly upon the Prince as its owne stemme and issue Hence it is that all States are accounted more or lesse slavish as their Princes are more or lesse arbitrary in their supreme counsells and all men are accounted more or lesse miserable as they are more or lesse slavish What became of Rome and of the whole world that was subject to Rome after it was once yoked by the Caesars who might arbitrarily wave the advice of the Senate consult with Slaves Eunuchs Women Panders c. or what brought us to all our late bloody catastrophes but the discountenance and detestation of Parliaments Aske the Lord Digby himselfe and even his Speeches made in Parliament since November 1640. will informe us that there were many causes of our miseries but the cause of all those causes was the abandoning and disgusting of Parliaments Sure the Lord Digby may passe as an Authentick testimony for our side and yet even the Lord Digby before he turn'd Courtier had the ingenuitie to resent this Kingdomes servilitie when a woman of a false religion hostile nation and adverse affection together with her Jesuiticall traine had more predominance in our publicke affaires then the two Estates assembled in Parliament But Master Ienkins will still say that the King is assisted with his Judges and other Counsell both Spirituall and Temporall and that the House of Commons in some debates may be divided unto two or three oddes voyces and therefore why may not the King so assisted be better advised then those two or three oddes voyces This is an old objection and seemes plausible but is easily answered For 1. It is very unequall that a few Counsellours whom the King chuses should be preferr'd before many whom the Kingdom chuses in those matters which import the Kingdome more then the King 2. If the Kings Councell in the House of Peers were equally to be valued with the House of Commons yet still so long as it is left arbitrary to the King to follow their advice or not the Kingdome is in the condition as Turky is where the Grand Signior is left onely to consult with himselfe or any of his Concubines or Eunuchs And lastly there can be no lower or baser degree of slavery imagin'd then for a Nation to be subjected to a Lord that is so absolute in the highest results of State as that he may use no Counsell or make choyce of what Counsell he pleases 4. I hast now to the fourth particular where M. Ienkins affirmes againe that the two Houses do separate the Kings power from his Person as the Spencers did and from thence frame the same three condemned conclusions as they did The separation of his Person from his power is proved partly by imprisonment of his Person and partly by usurping all his power for M. Ienkins tells us that the two Houses counterfeit a Seale of their owne and thereby seal Writs make Judges settle Courts and this is done contrary to the Kings consent not declared only by Letters Ministers and word of mouth but by his true great Seale of England It is here 1. To be noted that M. Ienkins himselfe does now distinguish betwixt that which the King declares by word of mouth personally And by Letters and Ministers extrajudicially and that which he declares legally by his Writs and judicially by the great Seale and this is a plaine concession that the Kings Person may urge one thing and his Office another that his personall command may be unjust and not to be obeyed at the same time that his regall command may be just and necessarily must exact obedience It is to be noted 2. That the reason alledged why the Kings commands in this warre are legall and just not personall and unjust is because they were authoriz'd and fortified with the true great Seale and what is this but to proclaime 1. That the great Seale of England is solely at the Kings dispose to be imployed according to his meere discretion 2. That the meer annexion of the great Seal makes any Act of the Kings legall and authenticall 3. That M. Ienkins is better able to judge of the two great Seales which is the true one then the two Houses of Parliament When M. Ienkins will be as learned in proving as he is audacious in presuming these new quaint poynts we shall know what to answer In the meane time we will expatiate no further then his discourse leades us As for imprisoment of the Kings Person we have answer'd to that already and forasmuch as the keeping Chaplaines from him is objected we answer thereunto that not Chaplaines but such and such Chaplaines viz. such as the State judges Incendiaries are deny'd and there is no more injustice in restraining such Incendiaries then in restraining Commanders and Armes Now to parallell the Houses with the Spencers M. Ienkins sayes that they having declared his Majestie to have broken his trust touching the government of his people they have raysed Armes to take him they have taken and imprison'd him they governe themselves they make Lawes impose Taxes make Judges Sheriffs and take upon them Omnia insignia Majestatis and is not this sayes he to remove the King for misdemeanours to reforme per aspertee to governe in aide of him the three conclusions of the Spencers M. Ienkins here as if he had abjured all ingenuitie confounds diverse things which he knowes to be exceeding different in nature For 1. He takes no notice whether the force which has bin used by the Parliament be offensive or defensive and yet none can be ignorant how many things may be justified in a defendant which cannot by the offendant 2. He distinguishes not betwixt that force of the defendant which aimes only at a temporary securance against the Assaylant that which proposes to it self vindication or reparation by the total removall or destruction of the Assaylant He knows well that the Spencers aimed at a totall dethronization of their Master whilst the Parliament aimes at nothing but beating down that Sword which was drawn against them 2. That the Spencers intended to levy offensive Arms for reforming that in their Master per aspertee which was not so dangerous to their persons and lives as that which has bin contrived and enterprised against this Parliament for not onely a partie of 300 Armed men to seize and teare five principall Members out of the House and by consequence to menace all that retained any freedome in them but Armies were solicited to attempt against this Parliament before they thought of any force and this is far