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 Ienkins policy is not to be superseded by Law but Law is to be improved by policie and as in quiet times and private cases 't is safer to follow Law then Policy so in times of troubles and in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
his force to oppose the equity and justice of the Propositions sent to his Majesty This is not to reply to his Answerer but to satisfie his owne peevish disposition yet since hee may abuse the people aswell when he railes as when he argues something must be returned in answer to him After he has magisterially condemn'd the Propositions in general as being contrary to law he vouchsafes at last thus particularly to interrogate us Have the two Houses a strict right to lay upon the people what taxes they judge meet have they power to pardon all Treasons c. subintelligitur without the Kings consent We answer they have not any such ordinary power but if the Kingdomes safety lye upon it and the King will not concurre in saving the Kingdome in an ordinary way they may have recourse to extraordinary meanes for the saving of it ordinarily the people may not take up Armes but in case of extraordinary invasion by forrain or domestick force they may justifie taking up of Arms and when War it selfe is justifiable all the necessary concomitants and expedients of a politick war are justifiable Nature has confined water to a descending course yet not by such a rigid Law but that for the necessary subvention of the whole Fabrick and for the avoiding of that vacuity which Nature more abhors then the dispensation or temporary suspension of such or such a particular inferiour Law this ponderous element may forsake its ordinary course and mount upwards In a Village where houses stand scatter'd and remote 't is not lawfull for me to demolish this house because that which stands next it is all of a flame but in a Citie this is lawfull where the houses are so conjoyned that the flame of one house may extend it selfe to the consuming or indangering of a whole street or more It is not generally lawfull for me to judge my neighbour unheard or to execute my neighbour unjudged Yet if I find my neighbour ingaged in such a Treason as Faulx was and ready with his Match to give fire to such a Traine of Powder as he had layd and have no other meanes to prevent him I may runne upon him with my Sword and make my selfe both his Judge and Executioner Now if Master Ienkins will say that such extraordinary acts as these are warranted by Law I shall cōply with him yet I conceive t is not upon any particular Law but upon the generall law of publick safetie that these warrants are grounded upon if I am not mistaken t is rather policy then Law that admits of such strange deviations from the common practice and rule of Law But sayes Master Ienkins these propositions cannot passe into Statutes but by the Kings concurrence and has not the King a free power to assent or dissent in those things which must receive their being from his concurrence Or is the seeking of the Kings concurrence nothing but a meer Complement We answer The King has a power to assent and dissent yet without any impeachment of his libertie he may nay he must assent to such Bills as are for the publicke good and to dissent from such as are tending to the publicke detriment the reason is because the free choice of the King is to receive its determination from without from the matter of the Bills not from within or from the propension of his owne will for the will injoyes a more perfect libertie when it is attracted and as it were necessitated by that object which is good then when it is left to its owne equilibrious motions and so wavers indifferently betwixt good and evill If it be said that in the choice of that which is good the King cannot so well satisfie his own judgement by the advise or reason of other men as by that which is dictated to him by his owne breast It must be answered first in the grand concernments of the Kingdome wherein the King has not so great a share as the people has t is more just that the reason of two Estates be satisfied then his Secondly in cases where the King is severally interessed his particular interests ought to succumbe and give a preference to the generall Thirdly either the matter in debate is intricate and admits of doubts or not If there be doubt in it then the King ought not to oppose his single judgement or rather opinion to the resolution of the Highest Court and Councell of the Kingdome If there be no doubt in it an accident sure very rare that the Lords and Representants of a whole State should judge a thing to be advantagious when the King knowes it certainly to be disadvantagious then the King is to consider whither the matter in question be necessary or expedient if it be expedient onely then the King ought not to contest about it forasmuch as that contestation may be more inexpedient for the State then his concession But if it be necessary as the cause of true Religion c. where the King being Orthodox knowes his Subjects to be blinded with Idolatry or Heresie and cannot without sin give his Royall assent to such irreligious Bills as they present then as it were impious in him to signe them so it is outragious in him to disturbe the publicke peace about them The reason of this is because Polititians guide themselves rather by the calculation of what is probable then what is possible onely and therefore though it be possible that a King with one eye should see more then a Parliament with many yet since this is not probable there is scarce any State but chuses rather to be swayd by the counsells of many then by the counsell of one and where the counsell of one claimes a prevalence above the counsells of many 't is not obey'd without great reluctance commonly and publicke disturbance Besides if one mans eyes perchance see more then the eyes of many as is very rare though not impossible yet t is very strange that that one mans discovery should not open the eyes of other standers by without force in respect that light is a thing lovely to all and ready to be imbraced upon the least glimpse of it and a very little thereof being let in through a narrow cranny may make all that is contained in a very wide roome visible And if one man possibly in things indifferent should see more then many yet t is very neere to an impossibilitie that one man should apprehend truth more then many where that one man has more prejudice against the truth by selfe-interests then the many And who can doubt but that Princes as Princes are more drawne by the by as of selfe-interests against that which is the good of the communitie then that Court which is not onely by the vertue of representation but even naturally also in some degree the communitie it selfe The root sends juice and nourishment to the branches but expects none backe from them and the fathers love has
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