116. The Writ of summoning the Commons is to doe and to consâ—nt to such things which shall happen to bee ordained by Common Counsell there viz. in the Parliament p. 25.26.115 The Parliament is a Corporation composed of the King the head and the Lords and Commons the Subject body p. 5. l. 22. p. 19.20.49.50.80.122.142.145.146 And it hath power over our Lives Libertyes Lawes and Goods p. 118. The Court of Parliament is onely in the House of Lords where the King sits in person p. 116.122.144 The Office of the Lords is to Counsell the King in time of Peace and to defend him in time of War p. 116.142 It belongs to the House of Lords to reforme erroneous Iudgements given in the Kings Bench to redresse the delayes of Courts of Iustice to receive all Petitions to advise his Majesty with their Counsell to have their Votes in Voting or abrogating of Laws and to propose for the Common good what they conceive meet p. 33. How Errours in Iudgement are reversed by the House of Lords p. 55. At a Conferrence the Commons are alwaies uncovered and stand when the Lords sit with their hats on which shewes that they are not Colleagues in Iudgement with the Lords p. 147. Every Member of the House of Commons takes the Oath of Allegiance and Supremacy before his admission into the House p. 67.133 Briberies Extortions Monopolyes ought to bee enquired after by the House of Commons and complained of to the King and Lords p. 114. It belongs to the House of Commons to represent the Grievances of the Countrey to grant Aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating Lawes p. 33.115 116 117 118. Because making of new and abrogating of old Lawes both induce Novelties and because Bils in both Houses may passe but by one or two voices or very few and perhaps of no Iudicious men who oftentimes carry it by making the Major part which involves the consent of all therefore the Law makes the King assisted therein by a great number of Grave Learned and Prudent men the Judge of those Bils whether they be necessary for the Publique Good or no. p. 32 3â— 53.57.123 And the King upon all Bills hath liberty of assenting or dissenting p. 18.28.39.111 And in case of the Kings Minority the Protector hath his liberty and negative voice in respect of the King p. 52. The styles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either the King Ordaines at his Parliament c. Or the King Ordaineth by the advice of his Prelates and Barons and at the humble petition of the Commons c. In Hen. 7. time the style was altered and hath so continued to this day p. 24.71 No Act of Parliament bindes the Subject without the assent of the King p. 71.72 When an Act of Parliament is against common Right or Reason or repugnant or impossible to bee performed the Common Law shall controle it and adjudge it to be void And such is an Act for a perpetual Parliament p. 139. An Act of Parliament that a man shall bee Iudge in his own cause is a voyd Act. p. 139. An Adjournment of the parliament makes no Sâ—ssion p. 137. There is no Sâ—ssion till a prorogation or dissolution of the Parliament p. 137. All the Acts of one Sâ—ssion relate to the first day of the Parliament p 138. The two Houses ought to take care of the preservation of the Kings Person p. 18. The Lords and Commons cannot assent to any thing that tends to the disinherison of the King and his Crown to which they are sworn p. 11. The two Houses ought not to meddle with the Kings Revenue p. 11. Armes are not to be borne in London or Westminster in time of Parliament p. 8.39 The Priviledge of Parliament protects no man in case of Treason or â—elony p. 15.16 78. Parliaments are as the times are if a turbulent Faction prevailes the Parliament are wicked if the times be sober modest prudent and not biassed the Parliament are right good honourable and good Medicines and Salves p. 41.42 The present Parliament THis Parliament beganne 3. Novemb. 1640 and in the beginning thereof the King acquitted the Ship-Money Knighthood-Money seven Courts of Justice consented to a Triâ—niall parliament setled the Forrest bounds tooke away the Clarke of the Market of the Houshold trusted the Houses with the Navy passed an Act not to dissolve this Parliament without the Houses assent No people in the world so free if they could have been content with Lawes Oathes and Reason and nothing more could nor can bee devised to serve us neither hath been in any time before p. 3â— Notwithstanding all this Jan. 10. 1641. the King was driven away from London by frequent Tumults and 2. thirds and more of the Lords had deserted that House for the same cause and the greater put of the House of Commons left that House also for the same reason New men chosen in their places against Law by the pretended Warrant of a counterfeit Seale and in the Kings name against his consent leavying War against Him and seizing his Forts Ports Magazins and Revenue and converting them to his destruction the subversion of the Law and Land laying Taxes on the people never head of before in this Land devising new Oathes to oppose the Forces raised by the King c. p. 35. From the 3 Novem. 1640. uâ—â—o Ian. 10 164â— they had time to persecute all evil Counsellors and Iudges p 17 4â— From that time the King was driven away the two Houses stood in opposition to the king and his power p. 66. This became no Parliament when the King with whom they should parley was driven away and it continues so whilst his Majestic is restrained as a prisoner p. 35.81 And the houses now severed from the King have no power at all no more than the body hath being severed from the head p. 80.112 The 2. Houses do not now act by the Kings Writ but contrary to it p. 121. And so their Acts are Null p. 122 141. The Act for continuing this parliament so long as both Houses please is voyd because it is 1. Against Common right for thereby the parliament men will not pay their debts And they may doe wrong to other men Impune besides the utter destruction of all mens actions who have to doe with Parliament men by the Statute of Limitation 21. Jacob. 2. Against common reason for parliaments were made to redresse publique Grievances not to make them 3. Impossible the Death of his Majesty whom God long preserve dissolving it necessarily 4. Repugnant to the Act for a Trienniall parliament and to the Act for holding a parliament once a yeare p. 139.140 The end of continuing this parliament was to raise Credit for mony for three purposes And the three ends of the Act being determined it agreeth with Law and Reason the Act should end p. 141. A perpetuall parliament
Commissioners to tax men secundum faculâ—ates and so make all mens estates Arbitrary the answer is that in lâ—vying of publicke aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoyd discretion in the assesments for so it ever was and ever will bee 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. 9. if Kings should referre to the politick capacity it would continue after his death 2 H. 5 â— parâ— instit â—6 4 pars Iust 46 which proves that the King cannot be said to be there whâ—â— he is absent as now he is there is no inter regnum in the Kingdome the dissolution of the Parliament by hiâ— death shewes that the beginning and end thereof referrs to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5 Chap. 6. to the King onely it belongs to make Leagues with Forraigne Princes this shewes where the supreame power is and to whom the Militia belongs 8. H. 6. numb 57. Rott Parl. Cooks 4 pars instit 25. H. 6. No priviledge of Parliament is grantable for treason 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 ayd the King and the King hath an inheritance to hold Parliaments and in the ayds granted by the Commonalty 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 own cause and aswel as ten or any number may commit treason the greater number may aswell The King by his Letters patents 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 bee Judge and party Calvins Case 7. pars fol. 11 12. A corporate body can commit no treason nor can treason be committed against a corporate body 21. E. 4.13 and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can bee committed by or against such a body that body hath no soule no life and subsists onely by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the Statue of 25. E. 3. must bee 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 for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forraigne Prince 19 Ed. 4.46 22 Rd. 4. Fitz. jurisdiction â—â—st plaeite without the Kings consent the league holds is not broken and therefore the representative body is inferiour to his Majesties The King may erect a Court of Common pleas in what part of the Kingdome he 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 1 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 sworne to observe and deliver betweene the King and his people impartially to rich and poore high and low 2 Pars instit 158. and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Lawes be violated and no reflection to be made on the King All Counsellors and Judges for a yeere and three moneths untill the tumults began this Parliament were all left to the ordinary cause of Justice what hath been done sithence is notorious For great Causes and considerations an Act of Parliament was made for the surety of the said Kings person R. 3. 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the Houses have greater reason to care for the preservation of his Majesty The Subjects are bound by their allegiance to serve the King for the time being Hâ—n 7. 11 H. 7. c. 1. against every Rebellion power and might reared against him within this Land that it is against all Lawes reason and good conscience if the King should happen to be vanquished that for the said deed and true duty and allegiance they should suffer in any thing it is ordained they should not and all Acts of processe of Law hereafter to be made to the contrary are to be void This Law is to be understood of the naturall Person of the King for his politick capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no Statute â—â— H. 7.20 4 H. 7.18 Henry 8. 7 H. 7.14 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to do justice to all men 24 H. 8. c. 12. 25 H. 8. c. 28 this is affirmed of the King and not of the two Houses The Commons in Parliament acknowledge no superiour to the King under God the House of Commons confesse the King to be above the representative body of the Realm Of good right and equity the whole and sole power of pardoning treasons fellonies c. 27 H. 8. c. 2â— Note belong to the King as also to make all Justices of Oyer and Terminer Judges Justices of the peace c. This Law condemns the practice of both Houses at this time The Kings Royall Assent to any Act of Parliament signed with his hand expressed in his Letters patents under the great Seale and declared to the Lords and Commons shall be as effectuall 33 H. 8. cap. 21. as if he assented in his owne person a vaine Act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principal members of the body Dier 38. H. 8. fo 59.60 the Commons the inferiour members and so the body is composed therefore there is no more Parliament without a King then there is a body without a head There is
THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins Prisoner in Newgate UPON Divers STATUTES Concerning the Liberty and Freedome of the Subject With a perfect Table thereto annexed Plebs sine Lege ruit LONDON Printed for J. Gyles and are sold at his shop at Furnivals-Inne MDCXLVIII Here JENKINS stands who thundring from the TOWER Shook the bold Senat 's Legislative Power Six of whose words twelve Reames of votes exceed As mountaines mov'd by graines of mustard-seed Thus gasping Lawes were rescu'd from the Snare He that will save a Crowne must know and dare Sould by I. Giles at Furnivals-Inn-gaw J. Berkenhead The Contents The Law of the Land The King Treason A Parliament The present Parliament Certaine Erroneus Positions and Proceedings of both Houses of Parliament The like of the House of Commons The Propositions of the Parliament of both Kingdomes sent to New-Castle The Kings Party The Parliaments Party are Delinquents The Army serving the two Houses The Army Rescuing the King The Liberty of the Subject Messellanâ—a The Law of the Land THE Law of the Land hath for its ground 1. Custome 2. Judiciall Records 3. Acts of Parliament The two latter being Declarations of the Common Law and custome of the Realme pag. 5.21.23 The Law of Royall Government is a Law Fundamentall p. 5. The Kings Prerogative and the Subjects Liberty are determined and bounded by the Law p. 131. The King claimes no power but by the law of the land p. 131. The Law the onely Rule and Direction of the Subject in this present Warre pag. 42 131. Vbi Lex non distinguit â—bi non est distinguendum p. 132. The King THE King of England hath his Title to the Crowne and to his Kingly Office and Power not by way of trust from the two Houses of Parliament or from the people but by inherent Birth-right from God Nature and the Law p. 24 25. 38. 52 53 54 56. 57. There was never King Deposed but in tumultuous and madde times and by the power of the Armyes and they who were to bee the succeeding Kings in the head of them as Ed 3. and Hen. 4. p. 54. Usurpers were Kings de factâ— not de jure p. 54. The King is assisted by the advice of the Judges his Counsell at Law Sollicitor Atturney Masters of Chancery and counsell of State hence the Law hath setled severall Powers in the King p. 27.28 The Kings of England enjoyed that Power in a full measure till King Iohns time p 6 7 8. How Rights of Soveraignty continued in practise from Hen. 3. till 1640 p. 6. The Kings Power not separable from his Person p. 70 71. The Body Naturall and Politique in the King make but one body p. 2.38.71 Every Subject swears homage to the King p. 8. The Law gives reverence to the Person of the King p. 10. Foule mouthed Pamphlets against the King condemned p. 21. The Supream Power is in the King p. 7.13.14.16.57 58. The Oath of Supremacy in relation to the Parliament p. 67.133 The King Supream in Ecclesiasticall causes p. 10. The King the onely Supreame Governour and all other persons have their power from him by his Writ Patent or Commission p. 20 21 22.36 37. 64 65. The power of the Militia is in the King p. 8.37 In the time of Parliament p. 8. The Commission of Array in force p. 13.36 The Power of making League with Forreigners is in the King p. 8.15.17 The power of War in the King p. 20.21 The power of making Officers in the King p. 8. The King onely hath power to make Justices of Peace and of Assize p. 45 100.12â— The power of coynadge in the King p. 8. The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130 The King hath power to remove the courts at Westminster p. 45. The King can do no wrong but his Judges Counselloâ—â—s and Ministers may p. 37.41 So long as men manage the Laws they will be broken more or lesse p. 29. Treason IN the Reign of Ed. 2. the Spencers the Father and the Sonne to cover their Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Allegiance was more by reason of the Kingâ— Crowne that is his Politique Capacity than by reason of his person upon which opinion they inferred three execrable and detestable Consequences First if the King do not demeane himselfe by reason in the right of his Crowne his Leidges are bound by Oath to remove the King Secondly seeing the King could not be reformed by suit of Law that ought to be done per asperte that is by force Thirdly his Leidges be bound to Governe in aid of him and in default of him p. 9.70 Severall Treasons by the Statute 25. 8d 3. p. 12 13 14 15 16 76. The word King in the 25. Edw. 3. must be understood of the Kings natural Person p. 12 13 77. Other Treasons not specified in that Act are declared to bee no Treasons untill the King and his Parliament shall declare otherwise p. 77.101 To seize the Kings Forts Ports Magazine of Warre is High Treason p. 11. 22â— 37.77 To remove Counsellours by Arms is high Treason p. 22.40 To leavie Warre to alter Religion is high Treason p. 40. To leavie war to alter the Law is high Treason p. 11.40.77 To counterfeit the great Seal is high Treason p. 37. To adhere to any State within the Kingdom but the Kings Majesty is high Treason 24.39 To imprison the King untill hee agree to certaine demands is high Treason p. 1â— 22.77 They who imprison the King purpose to destory him p. 163. Deposers of the King adjudged Traitors by the Law of the Land p. 54. A Body Corporate cannot commit Treason but the persons can p. 16. Noble men committing Treason forfeit their Office and Dignity p. 143. Treason how punished by the Law p. 42. Treason doth ever produce fatall destruction to the Offender and never attaines to the desired end and there are two incidents inseparable thereunto p. 135. A Parliament THe word Parliament cometh from the French word Parler to Treat p. 81. The King is Principium Caput Finis Parl. p 26.48.122 The King assembles the Parliament by his Writ Adjournes Prorogues and dissolves the Parliament by the Law at his pleasure p. 57. The Writ whereby the King assembled the two Houses which is called the Writ of Summons at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peers to Consult and Treat with the King that is the Parler of great Concernments touching 1. The King 2. The defence of this Kingdome 3. The defence of the Church of England p. 24.34 p. 25.81.120 121. Counsell is not command Councellors are not Commanders p. 26. The Writ of summoning the Judges Counfell of Lâ—w and 12 Masters of Chancery is to appeare and attend the Parliament to give Counsell p.
England and having many adherents And that Statute to that end affirmes no such power in the two Houses which is the question but in Queene 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 Queens Elizabeth and his owne Oath that the King is the onely supreame Goverhour of this Realme Answers The Parliament is the supreme power and the King supreme Governour And yet there he allowes him a Negaâ—ive 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 Parlimentary Title makes not the King so powerfull in truth that it escapes from a man unawares To make a distinction betweene supreame Governour and supreame power is very strange for who can governe without power The King assembles the Parliament by his Writ adjournes Vide Speep 645.4 par Instit 27. 2. 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 adjournement of the Parliament by the Kings Command Where is the supreame power The King by his Oath is bound to deny no man right 18 Ob. 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 hound as is set downe in the Objection Sol. but who shall judge whether the Bill proposed be just and necessary For all that they do propose are so pretended and carried in either House sometimes by one or two Voyces or some sew as aforesaid and certainly it hath been shewen the King his Counsell of State his Judges Sergeants Attorney Sollicitor and twelve Masters of the Chancery can better judge of them then two or three or few more Mr. Prynne fol. 45. In his Booke of the Parliaments interest to nominate Prnvy Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne Calvins case 7 pars fol. â—1 a stringe opinion and cites Calvins Case but leaves out the conclusions therein mentioned fol. 11. Master Prynne saith there But let this opinion be what it will without the Kings Grace and Pardon it will goe very farre and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Seale fol. 17. The Parliament hath no jurisdiction to use the Grear Seale for Pardons Generall or Particular Where is the supreme power then Mr. 19. 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 yeare of his Reigne the like was done in Parliament A facto all jus Sol. is no good Argument for than in Edward the firsts time it was no Parliament for King Henry the third was dead which dissolyed 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 suddainely done afterâ— Henry the thirds death King Edward the first being then in the Holy Land it was the first yeare of his Reigne and no Parliament was held that yeare nor the second yeare of his Reigne The first Parliament that was in his Reigne was in the third yeare 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 Seale was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protectour 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 said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. But the new counterfeit Seale was made when the King was at Oxford in his owne Kingdome and not in the holy Land Mr. 20 Ob. Prynne in his Booke of the two Houses power to impose Taxes restraines Malignants against any Habeaâ— Corpus c. saith that the Parliament is above Magna Charta and fol. 15. ibid. The Parliament hath power over Magna Charta to repeale the same when there is cause This Argument supposeth that they have the Kings power Sol. which hath appeared formerly they have not But suppose they had Magna Charta containes many Morall Lawes which by the Law of the Land a Parliament cannot alter 21 H. 7.2 D. and Student 2 Dialogue For example it saith cap. 11. Justice shall not be sold delayed nor denyed to any man but by this Argument the Parliament may make Law to delay deny and to sell Justice which surely is a very ill position to maintaine What they would have doth now by the Propositions sent to Newcastie to his Majesty appeare whereby they would have him divest himselfe and settle in them all his Kingly power by Sea and Land and of themselves to have power without him to lay upon the people of this Land what taxes they thinke meet to abolish the Common prayer-booke to abolish Episcopacie and to introduce a Church Government not yet agreed but such as they shall agree on His Majesty finding a prevailing party in both Houses to steere this course and being chased away with Tumults from London leaves the Houses for these Reasons viz. First because to alter the Government for Religion is against the Kings Oath Secondly against their Oaths For every of them hath sworne in this Parliament That His Majesty is the onely supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly this course is against Magna Charta the 1. Chap. and the last Salve sint Episcopis omnes liber tales sue Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third the first Chapter enacts if any Statute be made to the contrary it shall be holden for none and so it is for judgements at Law in the 25 of Edward the 1. chap. 1.2 The great Charter is declared to be the Common Law of the Land Fourthly they endeavout to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Books of Common prayet settled by five Acts of Parliament and compiled by
Soueraign Lord calling to remembrance the duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serue their Prince and Soueraigne Lord for the 〈◊〉 being in his Wars for the defence of him and the land against euery rebellion power might raised reared against 〈◊〉 and with him to â—â—er and abide in seruice in battell if â—ase so require and that 〈◊〉 the same service what fortune euer fall by chance in the same battel against the mind and will of the Prince as in this land sometime passed hath béen seen that it is not reasonable but against al laws reason good conscience that the said subjects going with their Soueraign Lord in Wars attending upon him in his person or being in other places by his coÌ„mandement within this Land or without any thing should lose or forfeit for doing their duty or seruice of Allegiance It be therefore ordained enacted and established by the King our Soueraign by the advice and assent of his Lords Spirituall and Temporall and the Commons in this present Parliament assembled and by authority of the same that from hence forth no manner of person or persons whatsoeuer he or they be that attend upon the King and Soueraign Lord of this land for the time being in his person and do him true and faithfull seruice of Allegiance in the same or be in other places by his commandement in his wars within this land or without that for the said déed and true duty of Allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by Act of Parliament or otherwise by any processe of Law wherby he or any of them shal lose or forfeit life lands tenements rents possessions heriditaments goods chattels or any other things but to bee for that déed and service utterly dischar ged of any vexation trouble or loss And if any Act or Acts or other process of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other process of Law whatsoever they shall be shall bee utterly voyd Prouided alwaies that no person or persons shall take any benefit or aduantage by this Act which shall hereafter decline from his or their said Allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degrée soever they be of shall haue any power or authority to pardon or remit any Treason Murders Man slaughters or any other Felonies c. but that the King shall haue the sole and whole power and authority thereof united knit to the Imperiall Crown as of right it appertaineth c. And in the same Statute it is enacted further That none shal haue power of what estate degrée or condition soeuer they be to make Iustices of Eyre Iustices of Assize Iustices of Peace c but all such Officers and Ministers shal be made by Letters-Paâ—ents under the Kings great Seal in the name and by the authority of the King and his Heires Successors Kings of this Realm In the first ear of Queen Mary and the first Chapter It is enacted by the Quéen with the consent of the Lords Conmions That no déed or offence by act of Parliament made treason shall be taken deemed or adjudged to be â—igh Treason but only such as be declared and expressed to be Treason by the Act of Parliament made 25. Ed cap. 2. before mentioned A Declaration of Mr. David Jenkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryals of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Juries and not otherwise unless it be by Act of Parliament THe Common Law of this Land is that every Freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concur for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Charta 19. 2 part inst fol 28 29.46 48 49 50. composed by Sir Ed. Cook and published by the Order of the House of Commons in May 1641. 4 pars instit fol. 41.356 No man shall otherwise be destroyed c. but by the lawfull judgement of his Peers or by the common Law of the Land Peeres to Noblemen are Noblemen Peeres to the ComoÌ„ns are Knights Gen c. Judgement of peers referres to peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by indictment presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29 and by 25 Ed. 3. c. 4.28 Ed. 3. c. 3.37 Ed. 3 c. 8.42 Ed. 3. c. 3. If the Lords wil try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Laws Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suiters to the King that what they had done in future time might not be drawn into president because that which they had done was against the Law b Rot. Par. roul 4. â— 2 Num. 2. part inst p. 50 with this agrees Sir Iohn Lees case Rot. Par. 42. â— 3. Num. 22.23 2. inst f. 50. with this agrees the practise and usage of all times in this Land all the free Commoners of this Kingdome hath alwayes been tryed and acquitted or condemned in capitall causes by Iurers of their equals An Ordinance bindeth not in Law at all c See 4. p. inst f. 23.48.232.298.292 2. p. inst f. 47 48.157.643 4. H. 7. faâ— 1. H. 7. f. 14.3 p. inst f. 41. and but pro tempore as the two Houses now affirme a man's life cannot be tried by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. 2. Philâ—p and Mary c. 10. It is enacted that all trials for Treason hereafter to be had shall be according to the course of the Common Law and not otherwise If the crime charged upon any be Treason against the two Houses against the Parliament it caannot be for there is no Parliament without the King That is no Treason in Law as appeares by 25. Ed. 3. c. 2. 11. R. 2. c. 3. 1. H. 4. c. 10. 1. 2 Philip and Mary c. 10. 3. part of the Institutes page 23 An Act of Parliament to make any a Iudge where he is party is a void act d Dr Bonams case 8. part of Cooks Reports for none can be a Iudge and party in the
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 publick Affaires This Oath being taken in Parliament that the King is the only and Supream Governour in al causes then it followes in Parliament causes over all persons then over the two Houses Let them keep this Oath and we shall bee sure of Peace in the Land and good Lawyers ought to desire peace both for the publicke good and their private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes Wee do not swear that the King is above all Law nor above the safety of his people neither do we so swear but his Majesty and we will sweare to the contrary and have sworne and have made good and will by Gods grace make good our Oath to the world that the KING is not above the Lawe nor above the safety of his people the Law and the safety of his people are his safety his Honour and his Strength AD 8. The Gent. concludes That Acts of Parliament are not formaly binding nor compleat without the Kings assent yet the Houses have a virtual power with out the Kings particular assent to doe things in order to publique justice and Safety viz. In setting up the Excise in raising and maintaining of Armes in Taxing the people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loans Compositions imprisoning the King abolishing the Common prayer Book felling the Churchs Lands c. all these are in order to the publick Justice and Safety Mr. H. P. you are of my profession I beseech you for the good of your Country for the Honour of our Science perswade your selfe and others as much as in you lies to beleeve and follow the monition and councell of that memorable reverend and profoundly Learned in the Lawes and Customes of the Land the Lord COOKI 3 par Inst pag 36. who writes as becomes a great and a learned Iudge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finde a Principle in Law a Rule in Reason and a Triall in Experience that Treason doth ever produce farall and finall destruction to the offender and never attains to the desired end two incidents inseparably thereunâ—o therefore let al men abandon it as the poysonouâ— bait of the divil follow the Precept in Holy Scripture SERVE GOD HONOUR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS Conclusion I say againe that without an Act of Oblivion a gratious Generall pardon from his Majesty the arrears of the Souldiers paid a favourable regard had to tender Consciences theâ—e will he neither Truth nor Peace in this Land nor any mansâ—cure of any thing he hath By me David Jenkins Prisoner in the Tower A DISCOURSE TOVCHING The Inconveniencies of a Long-continued PARLIAMENT A Perpetuall Parliament is repugnant to the Act made this Parliament for a Triennial Parliament for how can every three yeares a Parliament beginne if this bee perpetuall which may bee so if the two Houses please 2. An adjournment of the Parliâ—ment makes no Session 4 pars institut fol. 27. Howbeit before the adjournment the KING gives His Royall assent to some Bills Cookeibid 3. There is no Session till a Prorogation or dissolution of the Parliament 4. This Parliament as appeâ—res by the Act for not dissolving thereof set downe in the printed Statutes of this Parliament Plowd com 33.8 Bro. relation 35. Bro Parl. 86. Dâ—â— 1. Mariae 8 fol. 138. cannot be prorogâ—ed or dissolved but by Act of par liamènt There hath been as yet no Act of Parliament in that behalfe And therefore all the Acts of this Parliament are Acts of one Session 5. All Acts of one Session relate to the first day of the Parliament and all the Acts of such a Parliament 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. 36. Ed. 3. cap. 10. A Parliament is to be holâ—en once every yeare 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 yeare or with the intention of those Lawes How doth a Parliament every three-years agree with a Parliament for ever which may be if the two Houses please 7. The result is this atâ—ent day in Law this Parliament two acts have passed for howbeit the one was in 16 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 1 Pars. Doct. Bon. hams case â—o 11 8. 8. E. 3 3.30.33 E. cassaâ—it 32. 27. H. G. Anuity 41. 1. Eliz. Dâ—er 113. or repugnant or impossible to be performed the Common Law shall controle it and adjudg this Act to be void they are the words of the Law An Act of Parliament that a Man shall be judg in his own Cause is a void Act. Hobbart Fol. 120. 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 Commons doe any Subject wrong by disseising 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 be questioned by a Priviledg of Parliament and that extended also to many other beside themselves common right doth abhor these Enormities which a perpetuall Parliament doth beget besides the utter destruction of al mens actions real personall or mixt 21. Iac c. 16. who have to doe with Parliament-men by the statute of Limitation which confines Suites to certaine yeares For Common Reason Parliaments were ordained for remedies to redresse publique greivances it is against reason they should make publique and insufferable Grievances The Law of the Land allowes no protection for any men imployed in the service of the Kingdome but for a yeare to be free from Suites and in many Suites none at all howbeit he 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 impossibility The death of his Majesty whose life God prolong dissolves 〈◊〉 necessarily for the Writ of Summons iâ— Carolus Rex in hoc individuo and Carolus Rex is in this particular habiturus colloquium tractatum cum prelat is
affirmes That the sending propositions to the King and desiring his concurrence is scarce worth an answer for Subjects may humbly petition for that which is their strict right 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 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 property to pardon themselves and so for all the rest of their Propositions These propositions have been Voted by both Houses the Kings assent they being drawn into Bills makes them Acts of Parliament Hath the King no â—ight to assent or dis-assent 12 H. 7 20. 1 Iac. c. 1.1 Car. c. 7. Waâ— the sending but a Complement All our Law-books and Statutes speak otherwise This Gent. and others must give an account one time oâ— other for such delusions put upon the people AD. 4. The Gent. saith They affirme not that the Kings power is separated from his person so as the two Spencer affirmed c. His Majesties person iâ— now at Holâ—by 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 Chaplains 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 Calvins case 1 E. c. 2.7 pars â—â—ports 11. do not the two Houses act every of them They say his Majesty hath broken his Trust touching the Government of his people They have raised armies to take him they haue taken him and imprisoned him they governe themselves they make Laws impose Taxes make Judges Sheriffes and take upon them omnia insignia summae potestatis Is not this to remove the King for misdemeanours to reforme per asperte to govern in aid of him the three conclusions of the Spencers Doe they think the good people of England are become stupid and will not at length see these things The Gentleman saith Plowd 4. Eliz. 213. the Kings Power and his person are indivisible They doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Courts and Officers when they counterfeit the Great Seal and seale Writs with the same make Judges themselves Courts and Officers by their owne Ordinances against his consent declared under his true Great Seale of England not by word of mouth letters or ministers onely their Seale is obeyed their own Writs their own Judges their owne Courts their own Officers and not the Kings The time will come when such strange actions discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardening Delinguents we only say it is not proper to him quarto modo c. What doe you meane by quarte modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the bookes of the Law to this purpose collected by that reverend and learned Judge Stanford Stanford pleas 99. 27 H. 8. c. 24. Dier 163. from all Antiquity to his time who died in the last yeare of King Philip and Queene Maries Reigne 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 proâ—esse the Law and maintaine the party against the King returne 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 Bract. lib 3 cap 14. fol. 132. 1. pars Instit pag. 344. Plow 3. Eliz 236. 237. the Kings Prerogative and the subjects Liberty are determined and bounded and admeasured by a written Law what they are we doe not hold the King to have any more power neither doth his majesty claime any other but what â—he 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 art of Parliament made by the King Lords and Commons that will secure them and let this Army remember their exccuted fellow-Souldier and the Law was alwaies so taken by all men untill these troubles that have begoâ— Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be 〈◊〉 condition to governe c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or lâ—tter 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 saies The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knows the contrary Nos juris consulti sumus sacerdotes as Justinian the Emperour hath it in the first book of his Institutions and therefore knowledge and truth should come from our lips Worthy 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 wayes 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 â—e swear that the King is our supreme Goverour ouer all persons in all causes 5 Eliz. ch 1. Cawdreys case 5 pars fol. 1. c. Why hath he left out the word onely for the Oath the Members now take is that King Charles is now the only and supreame Governour in all causes over all persons 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 Gentleman affirms in his Answer These things agree well with their Oath This Oath is allowed by the common-Law Law of the Land that the King is the onely Supreame Governour in all causes over all persons This Oath is taken now in
proceribus c. King charles being to have conforence and Treaty with his Prelates and Peeres carolus Rex cannot have colloquium et tractatum Conference and Treaty when he is deceased 2 H. 5. Cook title Parl. 3. pars and therefore it is as impossible for any Parliament to continue as long as they please as for a Parliament to make a dead man alive For Repugnancy That which is but for a time cannot be affirmed to have continuance for even it is repugnant The end of the Act 17 Caroli Regis which is to continue at pleasure is in the said act expressed to be to raise credit for Mony for these three purposes First for relief of his Majesties Army and People in the North. Secondly for preventing the imminent danger of the Kingdome Thirdly for supply of other his Majesties present and urgent occasions These ends are ended the relief of that Army the imminent danger supposed was six yeares agoâ— the supply of his Majesty hath been a supply against Him take away the end the meanes thereto are to no purpose Sir Anthony Maines case 5. pars 1. H. 4.6 Littl. cap. Villen take away the cause the effect ceaseth and therefore the three ends of this Act being determined it agreeth with Law and reason the Act should end the Law rejects things unprofitable and uselesse A perpetuall Parliament besides that it incites men to selfe-ends destructive of the publique of which the whole Kingdom hath had sufficient experience will be a constant charge to the Kingdom for that every County and Borough who send Members to the Parliament are by the Law to pay Wages to their Parliament-men which to many Counties will amount above some Subsidies yearly there are many poor Borough-Towns in each County of this Kingdom who being to maintain two Burgesses in Parliament will be quickly beggered if the Parliament have no end for all which reasons it is clear that such long continuance of Parliaments will instead of a remedy which is and ought to be the proper and true ends of Parliament become an insufferable Grievance and Oppression to all the People of the Land The Writ of Summons this Parliament is the Basis and Foundation of the Parliament If the foundation be destroyed the Parliament falls The Assembly of Parliament is for three purposes Rex est habiturus colloquium tractatum cum Praelatis magnatibus et proceribus super arduis negotijs concernentibus 1. nos 2. Defensionem regninostri 3. defensionem Ecclesiâ—â—-Anglica nae This parliament hath overthrown this foundation in all three parts 1. Nos The King they have Chased him away and imprisoned him they have voted no prelates and that a number of other Lords about fourty in the City must not come to the House and about fourty more are out of Town the colloquium tractatus are made void thereby For the King cannot consult and treat there with men removed from thence 2. Defensionem regmâ—nostri that is gone they have made it their Kingdom not His for they have usurped all his Soveraignty 3. Defensionem Ecclesiae Anglicanâ— that is gone that Ecclesia Anglicana must be understood necessarily that Church that at the test of the Writ was Ecclesia Anglicana they have destroyed that too So now these men would be called a Parliament having abated quashed and made nothing of the Writ whereby they were summoned and assembled If the Writ be made void All the Processe is void also that House must needs fal where the Foundation is overthrown Sublaâ—o fundamentâ— opus cadit the foundation being taken away the work fals is both a Maxime in Law and reason For some years past there is no crime from treason to trespass but they are guilty of all treasons Felonies Robberies Tresspasses are câ—ntra pacem coronam dignitatem Regis against the Peace Crown and Dignity of the King as appeares by all Indictments in all Ages Pax Regis the Kings peace Corona Regis the Kings crown Dignitas Regis the Kings dignity are all trod under foot and made nothing Pax Regis the peace of the King is become a Warre against the King his Dignity put into Prison and the Crown put upon their owne heads All the Judges of England have resolved that Noble Men committing Treason have forfeited their office and Dignity Nevils case 7. part 34.2 Iac. their office is to councell the King in time of Peace to defend him in time of Warre and therefore those men against the duty and end of their Dignity taking not only councell but Armes also to destroy him and being thereof attaint by due course of Law By a tacit condition annexed to the estate of their dignity have forfited the same they are the words of the law and therefore they have made themselves incapable to be Members of the upper House The Oppressions of the People Briberies Extortions Monopolies ought to be inquired after by the House of Commons and complained of to the King and Lords What have they done The House of Commons cannot by the Law commit any man to prison who is not of the said House for Treason Murder or Fellony oâ— any thing but for the disturbance of the publique peace by the priviledge of the whole Body They have no power by the Writ which the King issueth to elect and returne Members of that house so to do For the Writ for them is onely ad faciendum consentiendum to those things where of his Majesty shal consult and treat with his Prelates and Nobles dâ— communi consilio regni shall be there ordained as appears by the Writ Here is no separate power given over the Kings people to them but only ad faciendum â—onsentiendum and in all times this â—â—th beene expounded and restrained to that which concerned their own Members in relation to the publique Service 4. pars inst 23 24 25. as they are Members of the corporate Body of the Parliament where of the King is the Head But that the House of Commons have commited any man for Treason Murder or Felony or for any offence that had no relation to a Member of the House of Commons as it is against Law and reason so no instance can be given till this Parliament All Questions and Tryalls where witnesse are examined 19. H. 6.43.22 E 4.22.5 H. 4. c. 8.3 H. 6.46 the Examination is upon Oath by the Law by all our Books Statutes every dayes practice Examination without an Oath is but a loose discourse therefore the House of Commons not claiming power to give Oath have no power to examine any man No man shall be imprisoned by the King or his Councell 25. E. 3. c 4. Petition of Right 3 Car. unles it be by indictment presentment of his good and lawfull Neighbours where such deeds be done in due manner or by process made by Writ original at the Common Law this Statute rehearses Magna Charta p. 29. expounds
same cause and therefore the House of Peeres being a party touching the crime charged upon any man whom they would try by an Ordinance for Treason against both Houses cannot be a Iudge By the Petition of Right e Petition of Right 3. C.R. if any man deserve death he ought to suffer the same according to the Laws of the Land established and not otherwise but an Ordinance of the Lords is no established Law The protestation the Vow and Covenant the solemn League and Covenant the Declarations of both houses had made and published sithence this unnaturall Warre 3 part inst fol. 89. are amongst other things sworn and set downe to be for maintainance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said protestation Vow and Covenant League and Covenant and Declarations otherwise truth must be said and will be said that there is brought in a new arbitrary and tyrannicall government If the Lords have taken one mans life by an Ordinance they are not bound to take any more and the case differs in case any appeale be made from a tryall by Ordinance to a tryall at common Law which was not done by that man whose life was taken away by an Ordinance The Lords ought to remember that His Majesty and His progenitors have made them a house of peers they are trusted to counsell him in peace f Nevels case 8 pare Cooks reports and defend him in warre his Majesty in Parliament is to consult and treate with the Peers and with his Councell at Law Judges his Sergeants Atturney and Solicitor and Masters of the Chancery the Lords and that counsell by the respective Writ of Summons to Parliament are to give Counsell g 4 pars instit fol. 4.9 27 Edw. 3. c. 1.15 3 part instit fol. 225. the House of Commons by their Writ to performe and consen◠In the House of Lords the Court of Parliament onely is for they onely examine upon Oath h 1 Hen. 7. fol. 10. with them the King in person sits and by them their erroneous judgements * 14. H. 3. c. 5 upon a Petition to his Majesty for obtaining of a Writ of Errour by the advice of the Judges are reversed or affirmed c. The Lords are to remember that their eminency and grandeur is preserved by the Lawes if they leave all to will and dishonour their King and make nothing of the Lawes they will make nothing of themselves in the end And therefore it is well worth your observation what was said by M. Iohn Pym a Member of the House of Commons in his speech against the Earle of Strafford in the beginning of the Parliament which speech is published by the expresse order of the House of Commons the words are these The Law is that which puts a difference betwixt good and evill betwixt just and unjust if you take away the Law all things will fall into a confusion every man will become a Law unto himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envie will become a Law Covetousnesse and Ambition will become Lawes 〈◊〉 1 pal book deel pag. 140. 163. and what dictates what decisions such Lawes will produce may easily be discerned i. c. They that love this Common-wealth as things now stand will use all means to procure an Act of Oblivion a generall pardon from His Majesty the Souldiers their Arreares and tender consciences a just and reasonable satisfaction else we must all perish first or last May 17 1647 God preserve His Majesty and the Lawes wherein their Lordships and the whole Kingdom are concerned David Jenkins prisoner in the Tower of London THE CORDIALL OF Iudge Ienkins For the good People of LONDON In reply to a Thing called An Answer to the poysonous seditious Paper of Mr. DAVID IENKINS by H. P. Barrister of Lincolns-Inne Printed in the Yeare 1648. The Cordiall of Judge JENKINS for the good People of LONDON AFter the said Mr. H.P. hath made a recitall of the heads of my Vindication he deduced his Answer unto these eight particulars which follow verbatim 1. It cannot be denyed but the Parliament sits by the Kings Writ nay if Statute Law bee greater than the Kings Writ it cannot be denyed but the Parlia fits or ought to sit by something greater than the Kings Writ and if it be confessed that the Parl. sits by the kings writ but do not act by the Kings writ then it must follow that the Parlia is a void vaine Court and sits to no purpose nay it must also follow that the Parl. is of less authority and of less use than any other inferiour Court forasmuch as it is not in the Kings power to controule other Courts or prevent them from sitting or acting 2. This is a gross nonsequitur the Kings power is in himself Ergo it is not derived to nor does reside vertually in the Parliament For the light of the Sun remains imbodied and unexhausted in the Glob of the Sun at the same time as it is diffused and displayed through al the body of the aire and who sees not that the King without emptying himselfe gives Commissions daily of Oyre and Terminer to others which yet himself can neither frustrate nor elude but for my part I conceive it is a great error to infer that the Parliament hath only the Kings power because it hath the Kings power in it for it seemes to me that the Parliament does both sit and act by concurrent power devolved both from the King and Kingdome and in this some things are more obvious and apparent than in others For by what power does the Parliament grant Subsidies to the King if onely by the power which the King gives then the K. may take Subsidies without any grant from the Parliament and if it be so by a power which the people give to the Parliament then it wil follow the Parliament hath a power given both by King and Kingdom 3. The sending Propositions to the King and desiring his concurrence is scarce worth an Answer for Subjects may humbly petition for that which is their strict right and property Nay it may sometimes beseem a Superior to prefer suit to an inferior for matters in themselves due God himself hath not utterly disdained to beseech his owne miserable impious unworthy creatures besides 't is not our Tenet that the King hath no power because hee hath not all power nor that the King cannot at all promote our happinesse because he hath no just claime to procure our ruine 4. We affirm not that the Kings power is separated from his person so as the two Spencers affirmed neither doe we frame conclusions out of that separation as the two Spencers did either that the King may be removed for misdemeanours or performed per asperte or that the