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
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
other Nations But they can never assure us what we shall enjoy And therefore I wonder why the Royalists should so much extoll the rare Constitution of this Kingdom when besides some other flowers of the Crowne they ascribe to the King such a negative voyce in Parliament as is sufficient alone to destroy all that is granted us in all things else But to returne to our Reply 'T is maintained next that whatsoever power is in both Houses yet there is no power in the House of Commons to examine at all because the House of Commons cannot administer an Oath and examination without Oath is a meere communication and rejected as unprofitable in Law One reason why the House of Commons cannot examine upon Oath is because it is no Court and it appeares to be no Court because it has no power of tryall nor ever practised any such power by Bill Indictment Information Plaints or Originall And for the Lord Cookes Relation that the House of Commons have imposed Fines and imprisoned men in Queene Elizabeths time and since He saies these are but late and a few matters of fact and à facto ad jus is no good argument Here we see though the greatest plea against the House of Commons is the non-user of any such power yet when the non-user is proved then 't is objected That it is but of late times and illustrated but by a few presidents A second reason against the House of Commons being a Court is because it has neither the Kings Patent nor any Statute nor common usuage to make it so The House of Lords is acknowledged to be a Court of Record to many purposes partly because the King sits there and partly because there is cleere Law for their Priviledges but the House of Commons is excepted against as not within these reasons The truth is both Houses are but one Court and one Councell and the time has been when they have both sate in one place together and there may be good reason given why they may sit severall and have their priviledges kept distinct and why the Lords should be more active in some matters of judgement where the whole Commonalties interest is not touched But this is no proofe That what the Lords act by themselves receives no influence from the House of Commons Or that the House of Peeres is of more value in the eye of the Law or has any greater jurisdiction by the Law then the Representative Body of the whole State As for the Kings sitting in the House of Lords there is but little moment in that in regard that he sits not there to judge or to debate but onely to propose and consent And there is no Law to debarre him from the like in the Commons House and so it was when both Houses sate together and still is when they meet together And secondly whereas some Patent Statute or Usage is demanded from the House of Commons in maintenance of their judiciall power This we say is unreasonable Nay if any Patent Statute or Usage could be produced for preferrence of the Peerage before all the Knights Gentlemen and Commons of England in this point that were rather to be rejected as most unjust and unnaturall A third reason is brought against the House of Commons out of the Writ of Summons forasmuch as in that Writ the King resolves consults and treats with his Peeres super ardua regni but the Commons are called ad faciendum consentiendum in iis quae ibidem de communi concilio ordinari contigerint These words of the Writ though they are generall and in some things ambigious yet they are no more disadvantagious to the Commons then to the Lords or King But if words are to be interpreted by the practise of Parliaments and by the tenour of all our other Lawes we shall finde that the Kings part is to propose and consent but not to debate that the Lords part is to propose debate and consent in some things but not in all that the Commons part is to propose debate and consent in all And this appeares by the raising of Treasure the grand concernment of the Kingdom called justly Ornamentum pacis firmamentum belli and in this though the King and Lords may propose consent yet none but the Commons may propose debate and consent From reasoning Mr Jenkins now betakes himself to rayling and tells both Lords and Commons that whatsoever their Writ meant they act now quite contrary for by their Writ they were required to treat and consult with the King concerning the King the defence of the Kingdome and the Church whereas they first imprison the King next arme the Kingdome for themselves against the King and lastly demolish the Church by abolishing Bishops Deanes c. For the first the King left them unconstrained and deserted Westminster whether they were summoned to attend him and after tooke Armes to dissolve them but those Armes being now broken the Parliament keepes him from raising new broyles but so farre are they from refusing to treat with him that they prepare Propositions for him and reject no messages or Letters that come from him neither is the Kings restraint properly to be called imprisonment being much different therefrom both for the manner and for the end of it the manner of it is ingenuous and accompanied with many accommodations which thousands of other Free-men nay Gentlemen of England cannot attaine too and for his Attendants they are truly his Servants and as observant in all Offices compatible with the peace of the Kingdome as ever he had any The end of his restraint also is not to incommodate him in any degree there is nothing aymed at in it but to preserve the Kingdome from new disturbance till he appeares fully reconciled and to preserve him from drawing prejudice upon himselfe For the second since 't is not for the Kingdoms damage nor the Kings that future Commotions be supprest the Lords and Commons could no way better satisfie the intent of their Summons then by suppressing Commotions by the same posture of defence as they now are in I could wish also that Mr. Ienkins would understand that as the Kingdome is called the Kings so the King is called the Kingdoms and that propriety which the Kingdome has in the King is more tenderly to be expounded then that which the King has in the Kingdome For the third that the word Church should onely be applyed to Church-men or the word Church-men to Bishops Deanes c. is more then the Law teaches and if the businesse be studdied well 't will not be found a thing impossible as Master Ienkins supposes for the Parliament to abolish Bishops Deanes c. and yet to advance Church-men or to take away some of the excessive Grandour of Church-men without any destruction to the Church 2 Thus much of Mr. Ienkins Reply to the first particular I come now to his second where he takes it ill that
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