said King to allow them in the seventeenth of King Iohn the said Liberties were by King Iohn allowed and by his son Hen. the third after in the ninth yeere of his Reigne confirmed and are called Magna Charta and Charta de Foresta declared foure hundred twenty two yeeres sithhence by the said Charters Now rests to be considered after the Subjects had obtained their Rights and Liberties which wâ—nâ— no other then their ancient Customes and the fundamentall Rights of the King as Soveraigne are no other How the Rights of Soveraignty continued in practise from Henry the thirds time untill this present Parâ—â—ament of the third of November 1640. for before Henry the thirds time the Soveraignty had a very full Power Rex habet Potestatem jurisdictionem super omnes qui in Regnosuo sunt ea quae sunt jurisdictionis Pacis ad nullum pertinent nisi ad Regiam dignitatem â—reacton temps H. 3. lib. 4. cap. 24. Sect 1 habet etiam coeroionem ut Delinquentes puniat coerceat This proves where the supreame Power is A Delinquent is hee who adheres to the Kings Enemies Com Sur. Littl. 261. This shewes who are Delinquents Omnis sub Rege ipse sub nullo nisi tuntum Deo non est inferior sibi Subjectis Sect 5 Bractabid non parem habet in Regnosuo This shewes where the supreame power is Rex non habet superiorem nisi Deum satis habet ad poenam quod Deum expectat ultorem Bracton lib. 5. tract 3. de de saltis Cap. 3. Bracton Lib 3. Cap. 7. This shewes where the suprerme power iâ— Treasons Fellonies and other Pleas of the Crowne are propriâ— causa Regis This shewes the same power By these passages it doth appeare what the Custome was for the power of Soveraignty before that time the power of the Militia of coyning of Money of making Leagues with forreigne Princes the power of Pardoning of making of Officers c. All Kings had them the said Powers have no beginning Sexto Ed 1. Comsur Littl. 85. Liege Homage every Subject owes to the King viz Faith de Membre Ewd. 1. de vita de terrenâ— Honore the forme of the Oath inter vetera statuta is set down We read of no such or any Homage made to the two Houses but frequently of such made by them It is declared by the Prelates Earles Barrons and Commonalty of the Realm that it belongeth to the King and his Royall Segniory 7. Ed. 1. statuts at largeâ—â—l 42. straitly to defend force of Armour and all other force against the Kings peace at all times when it shall please him and to punish them that shall doe contrary according to the Law and Usage of the Realme and hereunto they are bound to ayde their Soveraigne Lord at all seasons when need shall be Here the supreame power in the time of Parliament by both Houses is declared to belong to the King At the beginning of every Parliament all Armes are or ought to be forbidden to be born in London 7. Ed. 2.4 pars instit 14. 1 Ed. 2. de Militibus Westminster or the Subburbs This condemnes the multitudes comming to Westminster and the Guards of armed men All who held by Knights-service and had twenty pounds per 〈◊〉 were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued cerâ—â—â—ntly in all Kings times but at this Parliament 3. November 1640. The King out of his grace discharged this duty which proves that the power of warre and preparation thereto belongs not to the two houses but only to the King The two Spencers in Ed. 2. Ed 3. Calvins Case Cook l. 7. fol. 1 time hatched to cover their Treason this damnable and damned opinion viz. That Ligeance was more by reason of the Kings politique capacity then of his person upon which they inferred these execrable and detestable consequences First if the King demeaned not himselfe by reason in the right of his Crown his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suit of Law it was to be done by force Thirdly that his Lieges be bound to govern in default of him All which tenets were condemned by two Parliaments the one called exilium Hugonis in Ed. 2. time the other by 1. Ed. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute the Articles are extant in the booke called vetera Statuta The separation of the Kings person from his power is the principall Article condemned and yet all these three damnable detestable and execrable consequents are the grounds whereupon this present time relies and the principles whereupon the two Houses found their Cause The Villeine of a Lord in the presence of the King Plowdon com 322 27. ass pl. 49. 33 Ed. 3â— ayde derâ—y 103 Fitz. 10 H. 7 16. cannot be seized for the presence of the King is a protection for that time to him This shewes what reverence the Law gives to the person of a King Reges sacro oleo uncti sunt capaces spirituallis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote habet Ecclesiasticam spititualem jurisdictionem This shewes the Kings power in Ecclesiasticall Canses The lands of the King is caled in Law Patromonium sacrum Com. Sur Littl Sect 4. 3. Ed. 3. 19 The houses should not have meddled with that sacred Patrâ—â—â—â—y The King hath no Peere in his land and cannot be judged Ergo the two Houses are not above him The Parliament 15. Ed. 3 was repealed for that it was against the Kings Lawes and prerogative 4 pars instit fol. 52. this shewes cleerely the propositions sent to Newcastle ought not to have been presented to his Majesty for that they are contrary to the Lawes and his Prerogative The Lords and Commons cannot assent in Parliament to any thing that â—ends to the disinherision of the King and his Crowne 4 pars Cookes instit fol. 14 42. E. 3. Parliament Rol. num 7. Lex consuetudo Parliamenti to which they are sworn This condemnes the said Propositions likewise To depose the King to imprison him untill he assent to certaine demands A war to alter the Religion established by Law or any other Law or to remove Councellors to hold a Castle or Fort against the King are offences against that Law declared to be treason by the resolutions herein after mentioned by that Law men are bound to ayd the King when war is levied against him in his Realme 25. Ed. 3. cap. 2. King in this Statute must be intended in his naturall body and person that only can die for to compass his death and declare it by overt Act is declared thereby treason to incounter in fight such as come to ayd the King in his wars is treason Compassing of the
Spencers did either that the King may be removed for misdemeanours or reformed per aspertè or that the Subject is bound to govern in ayde of him we only say that his power is distinguishable from his person and when he himself makes a distinction betwixt them commanding one thing by his Legall Writs Courts and Officers and commanding another thing extrajudically by word of mouth Letters or Ministers we are to obey his power rather then his person 5. We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo For if the King pardon him which hath murthered my sonne his pardon shall not cut me off from my appeale and 't is more unreasonable that the Kings pardon should make a whole State which hath suffered remedilesse then any private man So if the King should deny indemnity to these which in the furie of Warre have done thingâ— unjustifiable by the Lawes of Peace and thereby keep the wounds of the State from being bound up 't is equitable that an Act of Indemnity should be made forcible another may And if this will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolâ—â—e in all things else and the Parliament hath no power to discharge Delinquencies therefore it hath no power in other matters 6. The Parliament hath declared the King to be in no condition to govern but this must not be interpreted rigidly and without distinction for if the King with his sword drawn in his hand and pursuing the Parliament and their adherents as Rebels be not fit for all Acts of Government yet 't is not hereby insinuated that he is divested of the habit or right of governing If he be unqualified now he is not unqualified for the future if he may not doe things destructive to the Parliament he is not barred from returning to the Parliament or doing justice to the Parliament This is a frivolous cavil and subturfuge 7. We sweare that the King is our supreme Governour over all persons and in all Causes but we doe not sweare that he is above all Law nor above the safety of his people which is the end of the Law and indeed Paramount to the Law it selfe If he be above all Law or liable to no restraint of our Law then we are no freer then the French or the Turks and if he be above the prime and of Law common fafety then we are not so free as the French or Turks For if the totall subversion of the French or the Turk were attempted they might by Gods Law imprinted in the Book of Nature justifie a self-defence but we must remedilesty perish when the King pleases to command our threats Besides how atchieved the King of England such a Supremacie above all Law and the community it selfe for whose behoofe Law was made If Gods donation be pleaded which is not speciall to him or different from what other Kings may pretend toâ— then to what purpose serve our Laws nay to what purpose serve the Laws of other Countries for by this generall donation all Nations are condemned to all servitude as well as we If the Law of this Land be appealed to what Books hath Mr Ienkins read where hath he found on t that Lex Regia whereby the people of England have given away from themselves all right in themselves Some of our Books tell us that we are more free then the French that the King cannot oppresse us in our our persons or estates by imprisonment denying justice or laying Taxes without our consents other Books tell us that the safety of the people is the supreme Law and that the King hath both God and the Law for his Superiour But all this is nothing to learned Mr Ienkins 8. We admit that no Acts of Parliament are compleat or formally binding without the Kings assent yet this is still to be denyed that therefore without this assent particularly exprest the two Houses can doe nothing nor have any virtuall power at all no not to examine Mr Ienkins nor to doe any other thing of like nature though in order to publick justice and safety I have done and wish Mr Ienkins would call in and lick up againe his black infamous execrable reproaches so filthily vomited out against the Parliament To the first I Was examined by a Committee appointed by the House of Commons I say and said that the House of Commons have no power to examine me for that it is no Court every Court hath power to examine upon Oath this power the House of Commons never claimed The Court of Pie-powders Court-Baron Hundred Court 5 H. 4. c. 3. 3 H. 6.46 1 H 6.43 35 H. 6.5 County Court and every other Court of Record or not of Record hath power to examine upon oath and an examination without Oath is a communication only examination in Law is upon Oath There is no Court without a power of tryall the House of Commons have no power to try any offence Sir Anthony Maynes case Cook 5. pars Reports Lit. 2. lib. Sect. 194.6 H. 4.1 nor ever practised it by Bill Inditement Information Plaint or Originall to deduce it to tryal nor to try it by Verdict Demurrer or Examination of Witnesses upon Oath without which there can be no condemnation or judgement and that which can attaine to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit a fine The Writ Whereby they are called gives them power Aâ— faciendum consentiendum to what to such things Que ibidem de communi Consilie ordinari contigerint 4 pars instit fol. 4. 9. viz. in the Parliament This makes nothing at all for a Court for the House of Commons that consilium which that Writ intends is cleared partly by the Writ for chusing Knights c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peeres of the Kingdome for and touching the great concernments of the Common-wealth for the King never sits in the House of Commons and this also is made evident by the Writs to the Prelates Peeres Iudges and to his Councell at Law the words in their Writ are To appear and attend the Parliament consilium impensuri the one doth consulere the other facere consentire The House of Lords where the King sits in person 7. H. 6.28 1 H. 7.20 13. E. 3. ca. 5. 4 pars instit pag. 21. assisted by his Lords Judges Serjeants Atturney Sollicitor Masters of the Cnancery is a Court of Record to many purposes set down in the Books of Law and the Statutes of the Land and that Court is only in the House of Lords where the Kings sits A Court must either be by the Kings Patent Statute Law or by the Common Law which is common and constant usage the House of Commons hath no Patent to be a
And the Law is above the King Sol. By the same reason you may say that the Courts of Chancery or any of the Courts of Law at Westminster are above the King for they make of no effect the Kings Charters which are passed against the Law and the King is Subject to Law and sworne to maintaine it Again it is no Parliament without the King and the King is the head thereof he is principium Caput finis of a Parliament as Medas tenends Parliament hath it and two houses only want principium Caput fixis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say that the King is above himselfe The Parliament can enlarge the Kings prerogative 3 Ob. therefore it is above him If the King assent otherwise not Sol. and then it is an Act of Parliament and otherwise no Act. Bracton saith God the Law and the Kings Court 4 Ob viz. his Earles and Barons are above the King viz. in Parliament as Master Prynne expounds it Where is then the House of Commons Indeed take God Sol. the Law and Earles and Barons together it is true but to affirme that the Earles and Barons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferior member is above the head is hard to conceive besides that position destroyes all M. Pryâ—â—es discourse who attributes so much to the House of Commons The King is but one of the three estates of Parliament 5 Ob. and two are greater then one therefore above The Legs Armes Sol. and Trunke of the Body are greater then the Head and yet not above nor with life without it the argument holds for quantitie but not for qualitie and in truth the King is none of the three estates but above them all the three estates are the Lords Spirituall the Lords Temporall and the Commons Coke their Oracle in his Chapter of Parliaments fol. 1. In Corporations 6 Ob. the greater number of voyces make all the Acts of the Corporation valid therefore so in Parliament By this reason the Kings assent is needlesse and to no end Sol. and all the Acts of Parliament formerly mentioned and Law-Bookes have quite mistaken the matter which with unanimous voyce requires the Kings assent as necessarie besides the Corporations are so constituted by the Kings Charters that the greater number of Votes shall make their Acts valid The King as King 7 Ob. is present in his Parliament as well as in all other his Courts of Justice how be it he is not ther. In his other Courts of Justice he hath no voye Sol. he is none of the Judges in the Parliament he hath if his presence be not necessarie his voyce is not nor his assent â— Ob. Soverain power of Parliaments â—6 47. The originall prime legislative power of making Lawes to bind the subjects and their posteritie rests not in the King but in the Kingdome and Parliament which represents it Master Prynne in the same leafe affirmes and truly that the Kings assent is generally requisite to passe Lawes and ratifie them Sol. the King is the head of the Kingdome and Parliament how then can a Body act without a Head A major part of a Corporation binds 9 Ob. therefore the major part in Parliament and so of by-Lawes The Corporation is so bound either by the Kings Charters Sol. or by prescription which sometimes had the Kings concession but prescription and Law and practise alwayes left the King a negative voyce The King cannot alter the Bills presented to him by both Houses 10 Ob. go. True Sol. but the King may refuse them Acts of Parliament and Lawes ministred in the Reignes of Usurpers 11 Ob. bind rightfull Kings go. What is this to prove the two Houses power only Sol. which is the question A King de facto must be obeyed by them who submitted to him and they are his Subjects by their submission and not Subjects de facto to the true King and such being Traytors and Rebels to the Regent King having renounced the true King when the lawfull King is restored 9. Id. 4.12 may be punished by him for their Treason against the Usurper But here is a King still in both cases and the proceedings at Law holds the Judges having their Patents from the being Kings in the reignes of Kings de facto or de â—urâ— for all Kings are bound and sworne to observe the Lawes A King dies without Heire 12 Ob. is an infant non compes mentis c. the two Houses may establish Lawes go. There is no Inter-regnum in England Sol. as appeares by all ouâ— Bookes of Law and therefore the dying without Heiâ—e is a vaine supposition and by their principle 〈◊〉 is considerable in his politique capacitie which cannot die at also The Protector assisted by the Councell of the King at Law his twelve Judges the Countell of State his Attorney Solicitor and two Sergeants at Law his twelve Masters of the Chancerie hath in the Kings behalfe and ever had a negative Voyce but what is thi no the present question Wee have a King of fall age of great wisdome and judgement the power of the two Houses in such a case to be over the King cannot be showne The King cannot dis-assent to publique and necessarie Bills for the common good go. 13 〈◊〉 Nor ever did good King but who shall be judge Sol. whether they be publique and necessarie The major part in either of the Houses for passing of Bills so pretended may be but one or two voyces or very few and perhaps of no judicious men is it not then fitter or more agreeable to reason that his Majestie and Councell of State his twelve Judges his Sergeants Attorney and Solicitor twelve Masters of the Chancerie should judge of the conveniencie and benefit of such Bills for the publique good rather then a minor of which sort there may be in the Houses or a weake man or a few who oftentimes carry it by making the major part which involves the consent of all let reason determine The Kings of England have beene elective 14 Ob. and the King by his Coronation-Oath is bound to maintaine justas leges consiâ—â—tudines quas vulgas elegerit go. â—â—perie hath beene in the kingdome Soâ— and therefore to continue it still will not be taken for a good argument when things are setled for many ages to look back to times of confusion is to destroy all repose The Act of Parliament of the first of K. James Chapter the first and all our extant Lawâ—s say that the Kings Office is an heritage inherent in the bloud of our Kings and their birth-right And Usurpers that come in by the consent of the people are Kings de
facto but not de jure Ed. 4. c. â— but not de jure as appeares by the Acts of Parliament declaring them so And by all our Law-Bookes and the fundamentall constitution of the Land Regall power is hereditarie and not elective For the words vulgus-elegerit if vulgus be applyed to the House of Commons 1 H. 7. they of themselves can make no Lawes The Peeres were never yet tearmed vulgus but allowing they be so called the Lawes to be made must be just and who is fit to judge thereof is before made evident Customes cannot referre to future time â—5 Ob. and both are conpled Lawes and Customes Princes have beene deposed and may be by the two Houfes go. The deposers were Traytors Sol. as appeares by the resolution of all the Judges of England Coke Chap. Treason in the second part of the Institutes And never was King deposed but in tumultuous and mad times and by the power of Armies and they who were to be the succeeding Kings in the head of them as Edward the third and Henry the fourth The appeale to the Parliament for errors in judgements in all Courts 16 Ob. is frequent go. This is onely to the House of Lords Sol. and that is not the Parliament the House of Commons have nothing to doe therewith and in the House of Peeres if a Writ of Error be brought to reverse any judgement there is first a petition to the King for the allowance thereof and the reason of the Law in this case is for that the Judges of the Land all of them the Kings Councell and twelve Masters of the Chancerie assist there by whose advice erroneous judgements are redressed The Parliaments have determined of the rights of Kings 17 Ob. as in Henry the sixts time and others and Parliaments have bound the succession of Kings as appeares by the Statute of the thirteenth of Q. Elizab. Chapter the first and the discent of the Crowne is guided rather by a Parliamentarie Title then by Common Law go. If this Objection be true Sol. that the Title to the Crowne is by Parliament then we had no Usurpers for they all had Parliaments to back them yea Richard the third that Monster All cur Bookes of Law say they have the Crowne by discent and the Statutes of the Land declare that they have the same by inherent birth-right And the Statute of the thirteenth of Elizabeth the first Chapter was made to secure Q Elizabeth against the Qu. of Scaâ—â— then in the kingdome clayming the Grown of England and having many adherent◠〈…〉 〈…〉 〈…〉 And that Statute to that end a firmes no such power in the two Homfor which is the Question but in Q Elizabeth and the two Houses which makes against the pretence of this time Master Prynne fol. 104. of his booke intituled The Parliaments supreme power c. Objecting the Statute of the first of Queen Elizabeth and his own Oath that the king is the onely supreme Governour of this Realme Answers The Parliament is the supreme power and the king supreme Governour And yet there he allowes him a Negative Voyce and fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-law to others who had no good Title then the Parliamentary Title makes not the king so powerfull in truth that it escapes from a man unawares To make a distinction betweene Supreme Governour and Supreme power is very strange for who can Governe without power The king assembles the Parliament by His Writ adjourns Vide Speed 645.4 par Instit 27. 1. prorogues and dissolves the Parliament by the law at his pleasure as is evident by constant practise the House of Commons never sate after an adjournment of the Parliament by the kings command Where is the supreme Power The king by his Oath 1â—â— Ob. is bound to deny no man right much lesse the Parliament to agree to all just and necessary lawes proposed by them to the king This is the substance of the discourse against the kings Negative Voyce The king is so bound as is set downe in the Objection but who shall judge whether the Bill proposed be just and necessary Sol. For all that they doe propose are so pretended and carried in either House sometimes by one or two Voyces or some few as aforesaid and certainly as hath been shewn the king his Councell of State his Judges Sargeants Attorney Sollicitor and twelve Masters of the Chatcery can better judge of them then two or three or few more Mr. Pryn fol. 45. In his book of the Parliaments interest to nominate Privie-Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne a strange opinion Calvins case 7. pars fol. 11. and cites Calvins Case but leaves out the conclusions there in mentioned fol. 15. Master Prynne saith there But let this opinion bee what it will without the Kings Grace and Pardon it will goe very far and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Scale fol. 17. The Parliament hath no jurisdiction to use the Great Seale for Pardons Generall or Particular Where is the Supreme power Mr. â—9 Ob. Prynnes opening of the Seale pag. 19. saith The Noblemen and State the day after the Funerall of King Henry the third King Edward the first his sonne being in the Holy Land made a new Great Seale and Keepers of the same And in Henry the sixts time in the first yeere of his Reigne the like was done in Parliament A facto Sol. ad jus is no good Argument for that in Edward the firsts time it was no Parliament for King Henry the 3. was dead which dissolved the Parliament if called in his time and it could be no Parliament of Edward the firsts time for no Writ issued to summon a Parliament in his Name nor could issue but under that New Seale it was so sodainly done after Henry the thirds death King Edward the first being then in the Holy Land it was the first yeere of his Reign and no Parliament was held that yeere nor the second yeere of his Reigne The first Parliament that was in his Reigne was in the third yeere of his Reigne as appeares by the Printed Acts. Also the making of that Seale was by some Lords then present What hand had the Commons in it Concerning the Seale made in Henry the sixths time the Protector was Vice-Roy according to the course of Law and so the making of that Seal was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protector in the kings Name summoned that Parliament and was Protector made by the Lords and not in Parliament as appeareth plainely for that Parliament was in the first of Henry the sixth and the first holden in his time and power given by Commission to the
the ruine of King and people AD. 3. The Gent. affirms That the sonding Propositions to the King and desiring his concurrence is carce worth an answer for Sub ects may humbly petition for that which is their strict right and property c. The Propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the Propositions That they have a strict right or property to any one of these Propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right and property to lay upon the people what Taxes they shall judge meet To pardon all Treasons c. that is one of their Propositions Have they a strict right and proporty to pardon themselves and so for all the rest of their Propositions These Propositions have been Voted by both Houses 12 H. 7.20 1 Iac. cap. 1. 1 Car. cap. 7. the Kings assent theâ— being drawn into Bills makes them Acts of Parliment Hath the King no right to assent or dis-assent Was the sending but a Complement All our law-Law-Books and Statutes speak otherwise This Gent. and others must give an account one time or other for such delusions put upon the people AD. 4. The Gent. saith They affirm not that the Kings power is separated from his person so as the two Spencers affirmed c. His Majesties person is now at Holnby under their Guards have they not severed his power from him when by no power they have left him he can have two of his Chaplaines who have not taken their Covenant to attend him for the exercise of his Conscience For the three Conclusions of the Spencers 15. Ed. 2. Exilium Hugonis 1 E. 3. c. 2. Calvins case 7 Pars Reports 11. doe not the two Houses act every of them They saâ— his Majesty hath broken his Trust touching the Government of his people They have raised Armies to take him they have taken him and imprisoned him they govern themselves they make Lawes impose Taxes make Iudges Sheriffes and take upon them omnia insigna summae pâ—tâ—statis Is not this to remove the King for misdemeanours to reform per aspertè to govern in aide of him the three Conclusions of the â—Pencers Doe they think the good people of England are become stupid and will not â—t length see these things The Gentleman saith They doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Plowd 4. Eliz. 213. the Kings power and his Person are indivisible Courts and Officers when they counterfeit the Great Seale and seale Writs with the same make Iudges themselves Courts and Officers by their own Ordinances against his consent declared under his true Great Seale of England not by word of mouth letters or ministers only their Seale is obeyed their own Writs their own Iudges their own Courts their own Officers and not the Kings The time will come when such strange actions and discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo c. What doe you meane by quarto modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the Books of the Law to this purpose collected by that reverend and learned Iudge Stanford Stanfor Plcas 99. 27 H 8. c. 24. Dier 163. from all Antiquity to his time who dyed in the last year of King Philip and Queen Maries Reign you shall finde this a truth undeniable and this power was never questioned in any Age in any Book by any untill this time that every thing is put to the question You Gentlemen who professe the Law and maintaine the party against the King return at length and bring not so much scandall upon the Law which preserves all by publishing such incredible things We hold only what the Law holds the Kings Prerogative and the Subjects Liberty are determined and bounded and admeasured by the written Law what they are 1 Pars Instâ—t pag. 344. Plowd 3. Eliz. 236 237. we doe not hold the King to have any more power neither doth His Majesty claime any other but what the Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers doe now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an act of Parliament made by the King Lords and Commons that will secure them and let this Army remember their executed fellow Souldiers And the Law was alwayes so taken by all men untill these troubles that have begot Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be in no condition to govern c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or letter syllable or line in any Age in the Books of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz. when the two Houses will suffer him The Law saith thus Vbi lex non distinguit non est distinguendum He sayes The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knowes the contrary Nos juris consulti sumus sacerdotes as Institian the Emperour hath it in the first Book of his Institutions and therefore knowledge and truth should come from our lips Worth and ingenious men will remember and reflect upon that passage of that good and wise man Seneca Non qua itur sed qua eundum follow not the rayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seek it in time AD. 7. The Gent. sayes We sweare that the King is our supreme Governour over all persons and in all causes c. Why hath he lest out the word only for the oath the Members now take is that King Charles is now the only and supreme Governour in all causes over all persons 5 Elâ—z cap. 1. Cawdreys case 5 pars fol. 1. and yet they keep their only Supreme Governour now in prison and act now in Parliament by vertue of their Prisoners Writ and by a concurrent power in this Parliament and by their own strict right and property as the Gent. This Oath is allowed by the Common Lâ—w of the Land affirms in his Answer These things agree well with their Oath that the King is the only Supreme Governour in all causes over
Queenes death of the Kings eldest son to coyne his money to counterfeit his Great-Seale to levie Warre against him to adhere to such as shall so do are declared by that Act to be high Treason This Statute cannot refer to the King in his politique capacity but to his naturall which is inseperable from the politique for a body politique can have neither Wife nor Child 21. Ed. 4.14 not levie Warre nor do any Act but by the operation of the naturall body A Corporation or body politique hath no soule or life but is a fiction of the Law and the Statute meant not fictitious persons but the body naturall conjoyned with the publique which are inseperable The clause in that Act that no man should sue for grace or pardon for any offence condemned R. 2.11 〈◊〉 cap. 13. 4. pars instit fol. 42. or forfeiture given by that Act was repealed by a subsequent Act in 〈◊〉 Râ—â— holden unreasonable without example and against the Law and custom of the Parliament This condemnes the Proposition for disabling the King to Pardon 4. pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to the which the King consented and so a perfect Act yet Note the Army then about the Town Note that that Law is against private persons and by the 3. cap. thereof the Treasons there declared are declared to be new Treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1. H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. Râ— cap. 5. The Regality of the Crown of England is immediatly subject to God and to none other Plaine words H. 4. shewing where the supreame power is The Commission of Array is in force and no other Commission Ret. Parim â— H. 4. numb 24. an Act not printed this Act was repealed by 4. and 5. P. M. cap. 2. this repealed by the Act of 1. Iacobi and so it is of force at this day for the repealing Statute is repealed 4. pars institu fol. 51. 125. published sithence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the commentaries upon Magna Charta Sir Edward Cooke A booke alowed by Sir Nat. Brent called the reason of the War fol. 65. by their party is holden for the Oracle of the Law who wrote the said fourth part in a calme and quiet time and I may say when there was no need to defend the authority of the Commission of Array For that objection that that Commission leaves power to the Commissioners to tax men secundum facultates and so make all mens estates Arbitrary the Answer is that in levying of publick ayds upon mens goods estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoid discretion in the assessements for so it ever was and ever will be By this appeares that the Votes of the two houses against the commission of Array were against the Law The death of the King dissolves the Parliament H. 5. if Kings should refer to the politique capacity it would continue after his death 4. pars Inst 46. which proves that the King cannot be said to be there when he is absent as now he is 2. H. 5. 4 pars instit 46. there is no interregnum in the Kingdome the dissolution of the Parliament by his death shewes that the beginning and end thereof refers to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5. Chap. 6. to the King only it belongs to make Leagues with Forraigne Princesâ— this shewes where the supreame power is 8. H. 6. numb 57. Râ—tt Parl-Cookes 4. pâ—ns instit 25 Nâ— peiviledge of Parliament is grantable for treason H. 6. Felony or Breach of the Peace if not to any one member not to two not to ten not to the Major part 19. H. 6.62 The Law is the inheritance of the King and his people by which they are ruled King and people And the people are by the law bound to ayde the King and the King hath an inheritance to hould Parliaments and in the ayds granted by the Commonâ—alty If the major part of a Parliament commit treason they must not be Judges of it for no man or body can be Judge in his owne cause and aswell as ten or any number may commit treason the greater number may aswell The King by his letters pattents may constitute a County palatine and grant Regall rights 32. H. 6 13. Plowd 334. this shewes where the supreame power is 17. Ed. 4. rot parl numb 39. Ed 4. No priviledge of Parliament is grantable for Treason Fellony or Breach of the peace if not for one not for two or more or a Major part The same persons must not be Judge and party A corporate body can committ no treason Calvins Case 7 pars fol. 11 12 nor can treason be committed against a corporate body 21. E. 4 13. ond 14. but the persons of the men who make that body may committ treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can be committed by or against such a body that body hath no soul no life and subsists only by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the statute of 25. E. 3. must be intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby his politique is there also and not at Westminster 19. Ed. 4.46 for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forreigne Prince 22. Ed. 4. Fitz juvisdiction last placite without the Kings consent the league holds and is not broken and therefore the representative body is inferior to his Majesties The King may erect a Court of Common-pleas in what part of the kingdome be pleaseth by his letters patents can the two houses do the like 1. Ed. 5. fol. 2. It cannot be said that the King doth wrong Ed. 5. 4 Ed. 4.25 5 Ed. 4.29 declared by all the Judges and Serjeants at law then there The reason is nothing can be done in this Common wealth by the Kings grant or any other act of his as to the subjects persons goods lands or liberties but must be according to established lawes which the Judges are sworn to observe and deliver betwene the King and his people impartially to rich and poor high and low and therefore the Justices and the Ministers of Justice are to be questioned and punished if
essence of Parliaments being compleat and as they ought to be of head and all the Members to have power over Parliaments before Parliaments are as the time are if a turbulent faction prevails the Parliaments are wicked as appears by the examples recited before of extreme wicked Parliaments if the times be sober and modest prudent and not biassed the Parliaments are right good and honourable and they are good medicines and salves but in this Parliament excessit mediâ—iâ—a medum In this cause and warre between the Kings Majesty and the two Houses at Westminster what guide had the Subjects of the Land to direct them but the lawes What means could they use to discern what to follow what to avoid but the Lawes The King declaresiâ—â—â— treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this Warre The Subjects for a great and considerable part of them treason being such a crime as forfets life and estate also renders a mans posterity base beggerly and infamous looke upon the Lawes and find the letter of the law requires them to assist the King as before is manifested was ever subject criminally punisht in any age or nation for his pursuit of what the letter of the Law commands The Subjects of the kingdome find the distinction and interpretation now put upon the Lawes of Abstractum Concretam Power and Person body politique and naturall Personall presence and virtuall to have beene condemned by the law And so the Kings party hath both the letter of the law and the interpretation of the letter cleared to their judgements whereby they might evidently perceive what side to adhaere to what satisfaction could modest peaceable and loyall men more desire A verbo legis in criminibus poenis non est recedendum hath been an approved maxime of law in all ages and times If the King be King and remain in his Kingly office as they call it then all the said lawes are against them without colour Coll of Ordinances 777. they say the said lawes relate to him in his Office they cannot say otherwise Commissions and pardon in the Kings name and the person of the King and his body politique cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1.1 Eliz. cap. 1. And the members of both houses have sworn constantly in this Parliament that the King is the only supreme Governour in all causes over all persons at this present time For that of verball or personall commands of the King which is objected We affirme few things to be subject thereto by the law But his Majesties Command under his great Seale which in this warre hath beene used by the Kings command for his Commission to leavy and array men that is no personall command which the law in some cases disallowes but that is such a command so made as all men hold their lands by who hold by Patents All corporations have their Charters which hold by Charters and all Judges and officers their places and callings It is objected the King cannot suppresse his Courts of Justice Ob. Sol. 7 pars The Earle of Westmerlands Case 1 Eliz. Dier 165.7 pars Cooke and that this warre tended to their suppression The answer is the King cannot nor ought to suppresse Justice or his Courts of Justice nor ever did But Courts of Justice by abuser or non user cease to be courts of Justice when Judges are made and proceedings in those courts holden by others then Judges made by the King and against his command under the great Seale and his Majestie is not obeyed but the votes of the houses The case of discontinuance of Processe they cease to be the Kings Courts and are become the Courts of the houses and his Judges breaking that condition in law of trust and loyalty implied in their Patents are no longer his Judges they obey and exercise their places by vertue of writts and processes under a counterfet Seale The King only can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Iustices of the peace c. twenty eighth of Henry the eighth Dier the eleventh the Kings Patent makes Judges The cheese Justice of the Kings Bench is made by the Kings writ only of all the judges The great Seale is the key of the kingdome Articuli super chartas cap. 5. and meet it is that the King should have the key of his kingdome about him 2. pars instit 552. which confutes their saying that the King got the Seale away surreptitiously The King and he only Britton sol 23. may remove his Courts from Westminster into some other place at Yorke the Termes were kept for seaven yeares in Edward the first 's time but for the Court of Common pleas the place must be certaine for the Kings Bench and Chancery the King by the law may command them to attend his person alwayes if it seeme so meete unto him but the removing of the Common pleas must be to a place certaine and so notified to the people All the bookes of law in all times agree 34. Assis pl. 24.22 Ed. 4. Fitz. jurisdiction last placit that the King may grant conusance of all Pleas at his pleasure within any County or precinct to be holden there only and remove the Courts from Westminster to some other place for the Common Pleas 6 H. 7.9.6 Eliz. Dier 226. the place must be certaine and so notified to the people and adjourne the termes as he sees cause All which the two houses have violated Plebs sine lege ruis Some seeming objections of Master Prinâ—'s scattered in divers books answered and the truth thereby more fully cleared The first of Henry the fourth reviveth the statute of the eleventh of Richard second 1 Ob. and repeales to the twelfth of Richard the second whereby certaine persons were declared traytors to the King and Kingdome being of the Kings party True Sol. but note the eleventh of Richard the second A Parliament beset with 40000 men and the King assents to it so an Act and besides the first of Henry the fourth declares that the treasons mentioned in the act of the eleventh of Richard the second being but against a few private men shall not be drawn into example and that no Treason should be but such as the twenty fift of Edward the third declares 9 Ed. 4. sol 80. All these are Acts passed by the King and the three estates not to be drawne into example in a tumultuous time by a besieged Parliament with an army and the confirmer of Henry the fourth being an usurper makes that Act of the first of Henry the fourth to secure himselfe Also what is this in the votes of the two houses only at this time The Court of Parliament is above the King 2 Ob. for it may avoid his Charters Commissions c. granted against the law
Court Plowd Com. 319. nor Statute Law to be a Court nor common usage they have no Iournall Book but since E. 6. time was there ever Fine by the House of Commons estreated into the Exchequer For murder or Felony they can imprison no man much lesse for Treason that House which cannot doe the lesse cannot doe the greater It is ordained 25. E. 3. c. 4.3 Car. Petition of Right that no man shall be imprisoned or put out of his Franchise by the King or his Councell but upon Indictment or presentment of his good and lawfull Neighbours where the deed is done or by originall Writ at the Common Law and so is Lex terrae the Law of the land mentioned in Magna Charta cap. 29. expounded and the said Magna Charta and Charta de Foresta are declared by the Stat. of 25. E. 1. c. 1. to be the Common Law of the Land All Iudges and Commissioners are to proceed Secundum legem consuetudinem Regni Anglia as appeares by all proceedings in all Courts and by all Commissions and therefore the House of Commons by themselves proceeding not by Indictment Presentment or Originall Writ have no power to imprison men or put them out of their Franchise This no way trenches upon the Parliament for it is in Law no Parliament without King and both Houses 4 pars Instit pag. 1. 3 Pars Instit p. 23. I have only in my Paper delivered to Mr Corbet applyed my selfe to that Committee that they had no power to examine me 12. â— 7.20 Princes case 8 Pars Cook 1 Pars Instit p. 159. 14. H. 8.3 Dier 38. H. 8.60 1 Pars Instit p. 19. b. but I never thought said or wrote that the Parliament had no power to examine me the Law and custome of this Land is that a Parliament hath power over my life liberty lands and goods and over every other subject but the House of Commons of it selfe hath no such power For the Lord Cooks relation that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeth time and since Few facts of late time never questioned make no legall power nor Court 4 Pa. Instit ca. Parl. Ã facto ad jus is no good argument for the words of the Statute of 6. H. 8. c. 16. that a licence to depart from the House of Commons for any Member thereof is to be entred of Record in the Book of the Clark of the Parliament appointed or to be appointed for that House doth not conclude that the House of Commons is a Court of Record For first that Law of 6. H. 8. c. 26. handles no such question as that whether the House of Commons be a Court it is a maxime in all Lawes Lex aliud tranctans nil probat the word Record there mentioned is only a memoriall of what was done and entred in a Book A Plaint removed out of the County-Court to the Court of the Common-Pleas hath these words in the Writ of remove Fitzh Nat. Br. 70. Fitzh Nat. Br. 13. 12. H 4.23 34. H. 6.49 Recordari facias loquelam c. and yet the County-Court is no Court of Record and so for ancient Demesne in a Writ of false judgement the words are Recordari facias loquelam c. and yet the Court of ancient Demesne is no Court of Recoâ—d and so of a Court Baron the Law and custome of England must be preserved or England will be destroyed and have neither Law nor custome Let any man shew me that the Court of Lords or the House of Commons in any age hath made any man a Delinquent Rege dissentiente the King contradicting it under his Great Seale Sir Giles Mâ—mpessau Michell and others of late were condemned by the prosecution of the House of Commons in King James his time did King James ever contradict it And so of ancient times 4 Pars Inslit Tit. Parliam pag. 23. where the House of Peeres condemned the Lord Latimer in 50. E. 3. the Kings pardon freed him which shewes cleerly that the Kings expresse or implyed assent must of necessity be had to make a Delinquent The Geatleman saith That the Parliament sitâ— or ought to sit by something greater thâ—n the Kings Writ c. No Parliament did ever sit without the Kings Writ nor could ever Parliament begin without the Kings presence in person 4 Pars Instit pag. 4. 6. or by a Guardian of England by pacent under the Kings Great Seale the King being in reâ—â—tiâ— or by Commission under the Great Seale to certaine Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majesty hath been pressed and hath passed two Acts of Parliament one for a Triennall Parliament and another for a perpeâ—uall if the Houses please to satisfie their desires â—ow these two Acts agree one with another and with the Statute in E. the thirds time where Parliaments are ordained to be holden every yeare 4 E. 3. c. 14. 36. E. 3. c. 10.21 Iac. the Act of Limitation of Actions cap. 26. and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their meniall servants from all debts during their lives if they please to continue it so long and how destructive to mens actions against them by reason of the Statute of Limitations which confines their actions to certain years and many other inconveniences of greater importance is easie to understand How can any man affirm that the two Houses doe act now by the Kings Wrie which relates to Counsell and Treaty with the King concerning the King the defence of his Kingdome and of the Church of England 4 Pars Instit p. 14. these are the three points which it tends to as appeares by the Writ They keep their King prisosoner at Holnby and will not suffer him to consult and treat with them Vow and Covenant p. 11. They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent and to the same effect have devised the Oath which they call the Negative Oath Is this to to defend the Kings Kingdome or their Kingdome When by their Solemn League and Covonant they extirpate Bishops Deanes and Chapters root and branch is this to defend the Church of England that Church must necessarily be meant that was the Church of England when the said Writ bore test they were not summoned to defend a Church that was not in being 3 Pars Cookâ— Deane and Chapter of Norwich to destroy and defend the Church are very contrary things the Church is not desended when they take away and sell the Lands of the Church The Gentleman saith The King cannot contrâ—le other Courts of Justice or prevent them from sitting or acting and therefore not the
all persons this Oath is taken now in the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publike Affaires This Oath being taken in Parliament that the King is the only and Supreme Governour in all Causes then it followes in Parliament causes over all persons then over the two Houses let them keep this Oath and we shall be sure of peace in the Land and good Lawyers ought to desire peace both for the publike good and â—heir private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes We doe not sweare that the King iâ— above all Law nor above the safety of his people neither doe we so sweare but His Majesty and we will sweare to the contrary and have swom and have made good and will by Gods grace make good our Oath to the world that the King is not above the Law nor above the safety of his people the Law and the safery of his people are his safety his Honour and his Strength AD. 8. The Gent. concludes That Acts of Parliament are not formally binding nor compleat without the Kings assent yet the Houses have a virtuall power without the Kings particular assent to doe things in order to publike Iustice and Safety viz In setting up the Excise in raising and maintaining of Armies in taxing the peo-people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loanes Compositions imprisoning the King abolishing the Common-prayer-Book selling the Churches Lands c. all these are in order to the publike Justice and Safety Mr H.P. you are of my profession I beseech you for the good of your Countrey for the Honour of our Science perswade your selfe and others as much as in you lies to believe and follow the monition and Councell of that memorable reverend and profoundly learned in the Lawes and Customes of the Land the Lord Coke who writes as becomes a great and a learned Judge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finds a Principle in Law 3 Pars Instit p. 36. a Rule in Reason and a Tryall in Experience that Treason doth over producâ— futall and finall destruction to the offender and never attaines to the desired and two incidents inseparable thereunto and therefore lâ—t all men abandon it as the poysonous hait of the Devill and follow the Precept in holy Scripture SERVE GOD HONOVR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS CONCLUSION I Say againe that without an Act of Obliviow a gracious generall Pardon from His Majesty the Arreares of the Soulaiers paid a favorable regard had to tender Consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing be hath By me David Jenkins Prisoner in the Tower The End A DISCOURSE Touching the Inconveniencies of a Long continued Parliament AND THE IVDGEMENT OF THE LAW OF THE LAND In that Behalfe By DAVID JENKINS now Prisoner in the Tower of LONDON Printed in the Yeare 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament 1. Aerpetuall Parliament is repugnant to the Act made this Parliament for a Trienniall Parliament for how can every three years a Parliament begin if this be perpetuall which may be so if the two Houses please 2. An adjournment of the Parliament makes no Session 4 Pars Institut fol. 27. Howbeit before the Adjournment the King gives His Royall assent to some Bills Cooke ibid. 3. There is no Session till a prorogation or dissolution of the Parliament 4. This Parliament as appeares by the Act for not dissolving thereof set downe in the Printed Statutes of this Parliament fol. 138. cannot be prorogued but by Act of Parliament There hath beene as yet no Act of Parliament present and therefore all the Acts of this Parliament are Acts of one Session 5. All the Aâ—â—â— of one Session relate to the first day of the Parliament Plow â— com 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier 1 Mariae 45. and all the Acts of such a Paâ—liament are Acts of one day so the Act for the Trienniall and the Act for this Perpetuall are two Acts of one day by the Law 6. 4 Ed. 3. cap. and 36 Ed. 3. cap. 10. A Parliament is to bee holden once every yeere and more often if need shall bee those Acts are confirmed by the Act for the Trienniall Parliament How doth a perpetuall Parliament agree with a Parliament once every yeere or with the intention of those Lawes How doth a Parliament every three yeers agree with a Parliament for ever which may be if the two Houses please 7. The result is this at one day in Law this Parliament two Acts have passed for howbeit the one was in 16â— Carol. and the other in 17. Carol. yet both in Law are Acts of one day the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parliament The other this Parliament shall sit for ever if they please The one will have a Parliament with an end the other a Parliament without an end When an Act of Parliament is against common right or Reason 8 Pars Doct. Bonhams case fol. 118. 8 Ed. 3.30 33 E. 3. cessavit 32. 27. H. G. Annuity 11. 14 Eliz. Dier 313. or repugnant or impossible to bee performed the Common Law shall controle it and adjudge this Act to bee void they are the words of the Law An Act of Parliament that a man shall bee Judge in his owne cause is a void Act. Begin with Common Right It is against Common Right that indebted men should not pay their debts That if any Member of the House of Comons doe any Subject wrong by diffeising him of his land or dispossessing him of his goods or blasting of his fame or doing violence to his person that such persons during their lives should not bee questioned by a priviledge of Parliament and that extended also to many others besides themselves Common Right doth abhorre these enormities which a perpetuall Paliament doth beget besides the utter destruction of all mens actions reall personall or mixt who have to doe with Parliament men 21 Jac. by the Statute of Limitation which confines suits to certain yeares For Common Reason Parliaments were ordained for remedies to redresse publike grievances It is against Reason they should make publike and insufferable grievances The Law of the Land allowes no protection for any man imployed in the service of the Kingdome but for a yeare to be free from suits and in many suits none at all howbeit hee be in such service 39 H. 6.39 but a Parliament perpetuall may prove a protection not for a yeare but for ever which is against all manner of Reason For
by Inditement 25 E. 3. c. 1. Petition of Right 3 Car. presentment of his good and lawfull Neighbours where such deeds bee done in due manner or by processe made by Writ originall at the Common Law This Statute rehearses Magna Charta pag. 29. and expounds Lex terrae the Law of the Land there mentioned This Law binds all men and the House of Commons for they say they are of the Kings Councell in all points but onely against the disturbers of the service of the Parliament and therefore the imprisonment of severall persons who are not their Members and for no disturbance to their Members is utterly against the Law of the Land and the franchise of the Free-men of this Realme Cui non licet quod minus non â—eet quod majus he who may not doe what is lesse may not doe what is greater they cannot commit a man for murder or Felony much lesse for Treason No Court can fine and imprison but a Court of Record the House of Commons is no Court of Record 8 Pars Cook 120. 27 H. 6.8 the House of the Lords where the King is in his Person his Nobles and his Judges and Councell at Law the Masters of the Chancery assisting is a Court of Record and that is the Court of Parliament where the colloquium tractatus is The House of Commons may present grievances grant or not grant aydes consent or not consent to new lawes but for fining and imprisoning any but as aforesaid is but of a late date and no ancient usage They have no Journall Booke but sithence Edw. 6. time 6 Hen. 8. cap. 15. doth not prove the House of Commons to be a Court of Record it mentions onely to be entered on Record in the Booke of the Clerke of the Parliament if any Member depart into the Country There is no Journall there but sithence Ed. 6. time or it is a remembrance or memoriall as 12 H. 4.23 The whole Parliament is one corporate body 14 H. 8.3 36 H. 8. Dier 60. 4 Pars Instit cap. 1. consisting of the Head and three Estates The Court is only there where the Consilium tractatus is where the consult and treaty is with the King which is in the House of Lords onely The House of Commons claime not to examine upon oath any man no Court can bee without a power to give an oath Courts Baron Court of Pipowders County-Court may and doe give oath No Court can bee without a power to try no tryall can be without Oath and therefore the House of Commons not claiming power to give an Oath can bring no matter to tryall and consequently can be no Court. The behaviour of the Commons at a Conference with the Lords the Commons are alwayes uncovered and standing when the Lords sit with their hats on which shewes they are not Colleagues in judgement for fellow Judges owe no such Reverence to their Companions When was ever Fine imposed by the House of Commons estreated in the Exchequer 11 H. 4. câ— â— The ejecting of a Member who hath sitten is against the Law for they cannot remove a man out of the House unduly returned much lesse a man returned duely By these Lawes it appeares 〈◊〉 H. 4. cap. 1. 1 H. 5. cap. 1. 8 H. 6. cap. 7. 23 H. 6. cap. 15 that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is 200. pound one to the King another to the party that is duly elected imprisonment for a yeare without Baile or Mainprise and that person who is unduly returned shall serve at his owne charge and have no benefit at the end of the Parliament by the Writ De solutione foendorum Militum Civium Burgensium Parliament and the tryall of the falsity of the returne is to be before the Justices of Assises in the proper County or by action of debt in any Court of Record This condemnes the Committee for undue elections which hath been practised but of late times 3 Ed. â— 20. 5 Ed. â— 41. for besides these Lawes it is against a maxime of the Common law an averment is not receivable against the returne of the Sheriffe for his returne is upon Oath which Oath is to be credited in that suit wherein the returne is made The said Statutes condemne and make those members no members which were not resiant in the County or Boroughs for which they were elected at the time 〈◊〉 the rest of the Writ of the Summons of the Parliament and any abusive practice of late times to the contrary is against the Law and ought not to be allowed Assault upon Parliament Men. If a Parliament man or his Meniall Servant be assaulted beaten or wounded in the Parliament time 5 H. 4. cap 6. 11 H. 6 cap 11. proclamation shall bee made where the deed is done that the offender shall render himselfe to the Kings Bench within a quarter of a yeare after proclamation made and the offence there to be tryed for default of appearance the offender is declared attainted of the misdeed and it is accorded that thereafter it bee done likewise in the like Case Serving of processe upon a Lord of the Parliament punished in the Lords House Bogo de Clare 18 E. 3. 4 paâ—s Instit fol. 24. Iohn Thornsbyes case Clerk of the Parliam ibid. 10. E. â— Serving of processe upon Thornsby inquired of in the Chancery and there the offenders were convicted The premisses prove that breaches of priviledge of Parliament may bee punished elsewhere then in Parliament Upon all this Discourse it is easie to discerne what fruits may be expected from this Parliament continuing as long as the two Houses please and that there is no safety for this Common-wealth but by the Observations of their ancient Franchises Customes and Lawes CONCLUSION I Say againe that without an Act of Oblivion a gracious generall Pardon from His Majesty the Arreares of the Souldiers paid a favorable regard had to tender Consciences there will bee neither Truth nor Peace in this Land nor any man secure of any thing he hath The End AN APOLOGY FOR THE ARMY Touching the eight Quaeres upon the late Declarations and Letters from the Army touching sedition falsly charged upon them Wherein those Quaeres are resolved and thereby the present proceedings of the Army are proved to be Legall Just Honorable By DAVID JENKINS Prisoner in the Tower of LONDON Quis tulerit Gracchos de seditione querentes Printed in the Yeare 1647. AN APOLOGIE FOR THE ARMY THese Treasonable and insolent Quâ—rieâ— make the Army the Houses Subjects Bracton fol. 118 Stanford f. 2 and not the Kings None by the Lawes of this â—and can in this Kingdome have any Army but His Majesty It appeares the Army doth now evidently perceive that they were mis-led by the specious pretencees of Sulus Papuli the maintenance of the Kings Honour and of the maintenance of