the Lawes be violated And no reflection to be made on the King All Counsellors and Judges for a yeare and three months untill the tumults began this Parliament were all left to the ordinary course of Justice what hath beene 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 Majestie The Subjects are bound by their allegiance to serve the King for the time being against every Rebellion power and might H. 7. 11 H. 7. cap. 1. reared against him within this land that it is against all lawes reason and good canscience if the King should happen to be vanquished that for the said deede and true duty and alligeance they should suffer in any thing it is ordeined they should not and all acts of processe of law hereafter to be made to the conteary are to be void This law is to be understood of the naturall person of the King for his politique capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this act It is no statute if the King assent not to it 12 H. 7.20 H. 8. and he may disassent this proves the negative voice The King hath full power in all causes to doe justice to all men this is affirmed of the King 24 H. 8. cap. 1â— 25 H. 8. cap. 2â— and not of the two Houses The commons in Parliament acknowledg no superior to the King under God the houses of Commons confesse the king to be above the representative body of the Realme Of good right and equity the whol sole power of pardning treasons fellonies c. belong to the King 27 H. 8. cap. 24 Note as also to make all Justices of Oyer Terminor Judges Justices of the peace c. This law condemns the practise 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 bee 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 principâ—ll members of the body Dier 38. H. 8 fo 59.60 the Commons the inferior 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 a corporation by the Common-law as the King Lords 14 H. 8 fol. 3. and Commons are a corporation in Parliament therfore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court 24 Ed. 3.48 1 Ed. 4.2 2 H. 4.8 1 H. 7.10 1 Ed 5.1 or to keepe the Peace The death of the King discontinues all pleas by the Common-law which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed. 6. 1 Ed. 6. cap. 7. Patents of Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death Where is the virtuall power All authority and jurisdictions spirituall and temporall is derived from the King 1 Ed. 6. cap. 2. therefore none from the Houses His Majesties subjects 2. 3 Ed 6. ca. 2 11 H. 7. cap. 1. Calvins Case Sa. pars Cooke according to their bounden duties ought to serve the king in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for war to be in the king It is most necessary both for common policy and duty of the subject 5. 6 Ed. cap. 11 to restrain all manner of shamefull standers against their king which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity universal weale of the realm This condemns their continuing of the weekely pamphlets who have been so foule mouthed against his Majesty The punishment of all offenders against the lawes belongs to the king Q. Mary 1 Mar. Pl. 2. c. 2 and all jurisdictions doe and of right ought to belong to the King This leaves all to his Majesty All Commissions to levy men for the warre 4 5 P M. c. 3 Q. Eliz. 10 Eliz pl 315 are a warded by the king The power of warre only belongs to the king It belongs to the king to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sole government deâ—ses subjects Plow 234.242 213. Calvins case 7. pars fol 12. Plow com 213 Corps naturall le Roy politique sunt un corps that is The king hath the sole government of his Subjects the body politique and the naturall body of the king make one body and not divers and are inseparable and indivisible The body naturall and politique make one body and are not to be severed Ligeance is due to the naturall body Plow 934 243.213 Calvins case 7. pars fol. 12. and is due by nature Gods Law and Mans law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons at every Parliament takes a corporall Oath 1 Eliz. cap. 1. Cawdries case 5. pars fol. 1. That the King is the Supreme and only Governour in all Causes in all his Dominions otherwise he is no Member of that House the words of the Law are In all Causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law Cawdries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors 43 Eliz. 3 pars instit fo 6.2 adjudged Treason by all the Judges of England To depose the king or take him by force to imprison him untill he hath yeelded to certain demands adjudged Treason 39. Eliz. Hil. 1 Jacobi ibid. and adjudged accordingly in the Lord Cobhams Case Arising to alter Religion established or any Lawe is Treason 39 Ed. Bâ—adf case f 9. 16. By all the Judges of England ibid. 10 Eliz Plow 316. so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24. 3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Lawe makes not the servant greater then the Master nor the subject greater then the King for that were to subvert Order and Measure The Law is not knowne but by Usage 10 Eliz. Plow 319. and Usage proves the Law and how Usage hath been is notoriously knowne The King is our only Rightfull and lawfull Liege Lord and Soveraigne K. James 1 Jac. cap. 1. 9 Ed. 4. fol. 8. We
SEVERALL PAPERS Lately VVritten and Published by IUDGE IENKINS Prisoner in the Tower viz. 1. His Vindication 2. The Armies indempnity with a Declaration shewing how every Subject ought to be tryed for Treasons Felonies and all other Capitall Crimes 3. Lex Terrae 4. A Cordiall for the good people of London 5. A Discourse touching the inconveniences of a long continued Parliament 6. An Apologie for the Army ANNO 1647. The Vindication of Iudge Jenkins Prisoner in the Tower the 29. of Apr. 1647. I Was convened upon Saturday the 10. of this moneth of Aprill before a Committee of the House of Commons wherein Master Corbet had the Chaire and I was there to be examined upon some questions then to be propounded to me to which questions I refused to give any other answer then that which was set down in a paper I then delivered to the said M. Corbet which followeth in these words Gentlemen I stand committed by the House of Commons for High Treason for not acknowledging nor obeying the power of the Two Houses by adhering to the King in this War I deny this to be Treason for the supreame and onely power by the Lawes of this Land is in the King If I should submit to any examination derived from your Power which by the Negative Oath stands in opposition to the Kings Power I should confesse the Power to be in you and so condemne my selfe for a Traitour which I neither ought nor will doe I am sworne to obey the King and the Laws of this Land you have not power to examine me by those Laws by the Kings Writ Patent or Commission if you can produce either thereof I will answer the questions you shall propound otherwise I cannot answer thereto without the breach of my Oath and the violation of the Lawes which I will not doe to save my life You your selves all of you this Parliament have sworne that the King is our onely and supreame Governour your Protestation your Vow and Covenant your solemne League and Covenant your Declarations all of them publish to the Kingdome that your scope is the maintenance of the Lawes those Lawes are and must be derived to us and enlivened by the only supreame Governour the Fountaine of justice and the life of the Law the King The Parliaments are called by his writs the Judges sit by his Pattents so of all other Officers the Cities and Towns corporate governe by the Kings Charters and therefore since by the Law I cannot be examin'd by you without a power derived by His Majesty I neither can nor will nor ought you to examine me upon any question But if as private Gentlemen you shall be pleased to aske me any questions I shall really and truly answer every such question as you shall demand Aprill 10. 1647. David Jenkins This paper hath been mis-represented to the good people of this Citie by a Printed one styling it my Recantation which I owne not and besides is in it selfe repugnant just like these times the Body falls out with the Head To vindicate my selfe from that Recantation and to publish to the world the realitie of the Paper then delivered to M. Corbet and the matter therein contained I have published this ensuing discourse No person who hath committed Treason Murder or Felony hath any assurance at all for so much as one houre of life Lands or Goods without the Kings gracious pardon 27. Hen. 8. Cap. 24. The King is not virtually in the two Houses at Westminster whereby they may give any assurance at all to any person in any thing for any such offence 1. The House of Commons hath declared to the Kingdome in their Declarations of the 28. of November last to the Scots Papers pag. 8. That the King at this time is not in a condition to governe No person or thing can derive a vertue to other men or things which it selfe hath not and therefore it is impossible that they should have a vertue from the King to governe which they declare he hath not himselfe to give 2. 5. Elizab. Cap. 1. The Law of the Land is That no person in any Parliament hath a voice in the House of Commons but that he stands a person to all intents and purposes as if he had never beene elected or returned if before he sit in the House he take not his Oath upon the holy Evangelists that the Kings Majestie is the only and supream Governour over all persons in all Causes All the Members of the said House have taken it and at all times as they are returned doe take it otherwise they have no colour to intermeddle with the publicke Affaires How doth this Solemne and Legall Oath agree with their said Declaration That the King is in no condition to governe By the one it is sworne He is the only supreame Governour by the other that he is not in a condition to governe 2. The Oath is not that the K. was or ought to be or had been before he was seduced by ill Councell our onely and supreame Governour in all Causes over all persons but in the present tense that he is our onely and supreame Governour at this present in all Causes and over all persons So they the same persons sweare one thing and declare to the Kingdom the contrary of the same thing at the same time in that which concerneth the weale of all this Nation 4. The Ministers in the Pulpits doe not say what they sweare in the House of Commons Whoever heard sâ—thence this unnaturall Warre any of their Presbyters attribute that to His Majestie which they sweare The reason is their Oath is taken at Westminster amongst themselves That which their Ministers pray and preach goes amongst the people To tell the people that the King is now their onely and supreame Governour in all Causes is contrary to that the Houses doe now practice and to all they act and maintaine They the two Houses forsooth are the onely and supreame Governours in default of the King for that he hath left his great Councell and will not come to them and yet the King desires to come but they will not suffer him but keepe him prisoner at Holmby so well doe their Actions and Oathes agree 5. They sweare now King CHARLES is their onely and supreme Governour but with a resolution at the time of the Oath taking and before and after that he shall not be onely or supreme Governour or onely and supreme but not any Governour at all For there is no point of Government but for some yeares past they have taken to themselves and used his name onely to abuse and deceive the people 6. That this virtuall power is a meere fiction their Propositions sent to Oxford to Newcastle to be signed by the King doe prove it so What needs this adoe if they have the virtuall power with them at Westminster 7. To affirme that the Kings power which is the virtue they talk of is
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
Jan. 1641. as aforesaid being a yeare and almost three moneths had time and liberty to question all those persons who were eyther causes or instruments of the violation of any of the Lawes Examine how both Houses remedied them in former times First touching Religion What hath beens done this way Both houses in Henry the eights time tendred to him a Bill to bee passed called commonly the Bill of the six Articles this was conceivd by them to be a just and a necessary Bill Had not Henry the eighth done well to have refused the passing of this bill both houses tendred a bill to him to take the reading of the Scriptures from most of the laity had not King Henry the eight deserved much prayse to reject this bill In Queene Maryes time both houses exhibited a bill to her to introduce the Popes power and the Roman Religion had not Queen Mary done well to have refused this bill Many such instances may be given The two Houses now at Westminster I am sure will not deny but the refusall of such Bills had beene just the King being assisted as aforesaid and why not so in these times For the Civill Government what a bill did both houses present to Richard the third to make good his title to the Crowne had it not beene great honour to him to have rejected it what bills were exhibited to Henry the eight by both houses for bastardizing of his daughter Elizabeth a Queene of renowned memory to settle the Crowne of this Relme for default of Issue of his body upon such persons as he should declare by his letters Patents or his last will and many more of the like had not this refusall of passing such bills magnified his vertue and rendred him to posterity in a different Character from what he now hath And by the experience of all times and the consideration of human frailty this conclusion is manifestly deduced that it is not possible to keepe men at all times be they the houses or the King and his councell but there will be sometimes some deviation from the Lawes and therefore the constant and certain powers fixed by the ancient Law must not be made void and the Kings Ministers the Laws do punish where the Law is transgressed and they only ought to suffer for the same In this Parliament the houses exhibited a bill to take away the suffrages of Bishops in the upper house of Parliament and have sithence agreed there shall be no more Bishops at all might not the King if he had so pleased have answered this bill with Le Roy s'avisera or no voult it was against Magna Charta Articuli Cleri and many other acts of Parliament And might have farther given these reasons if it had so pleased him for the same first that this Bill destroyes the writt whereby they are made two houses of Parliament the King in the writt to the Lords being Cum praelatis colloquium habere secondly they have beene in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have beene Bishops here sithence we were Christians and the fundamentall Law of the Kingdome approves of them if any of them were conceived offensive they were left to justice and his Majestie would put in inoffensive men in their places but sithence his Majestie hath passed the Bill for taking away their votes in Parliament it is a Law that binds us so farr Upon the whole matter the Law hath notably determined that Bills agreed by both houses pretended to be for the publique good are to be judged by the King for in all Kings reigns Bills have been preferred by both houses which all wayes are pretended to be for the publique good and many times are not and were rejected with Roy s'avisera or Roy ne veult This Parliament beganne the third of November 1640 before that time in all the Kings reigne no armed power did force any of the people to do any thing against the law what was done was by his Judges officers Referees and Ministers from that time untill the tenth of January 1641 when the King went from London to avoyde the danger of frequent tumults being a yeare and three months Privy Councellors and all his Justices and ministers were left to the Justice of the law there wanted 〈◊〉 time to punishable men The Sphaere of the house of Comment is 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 of lawes The Orb of the house of Lords to Reforme eroneous judgements given in the Kings Bench to redresse the delayes of Courts of Justice to receive all Petitions to advise his Majestie with their Councell to have their votes in making or abrogating of Lawes and to propose for the common good what they conceive meete Lâ—x non cogit ad impossibilia Subjects are not to expect from Kings impossible things so many Judges Councellours Sheriffes Justices of the peace Commissioners Ministers of State that the King should over-looke them all cannot be it is impossible The King is virtually in his ordinary Courts of Justice so long as they continue has Courts their charge is to administer the lawes in being and not to delay defarre or sell-justice for any commandement of the King We have Lawes enough â—â—stâ—uâ—â—â—ta bâ—â—i saculi sunt boni 〈◊〉 good ministers as Judges and officers are many times wanting the houses propose now Lawes or abrogation of the old both induce novelty the law for the reasons aforesaid makes the King the only Judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings party adhered to him the law of the Land is their birth-right their guide no offence is committed where that is not violated they found the commission of Array warranted by the law they found the King in this Parliament to have quitted the Ship-money Knighthood-money seven Courts of Justice consented to a trienniall Parliament setled the Forest bounds tooke away the Clerke of the Market of the houshold trusted the house with the Navie 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 or can be devised to secure us neither hath been in any time Notwithstanding all this we found the King driven from London by frequent tumults that two thirds and more of the Lords had disserted that house for the same cause and the greater part 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 counter set Seale and in the Kings name against his consent levying warre against him and seizing his Ports Forts Magazines and Revenue and converting them to his destruction
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
separable from his Person is High Treason by the Law of the Land which is so declared by that learned man of the Law Sir Edward Coke so much magnified by this present Parliament who in the 7. part of his Reports in Calv. Case fo 11. saith thus In the reigne of Edward the second the Spencers the Father and Son to cover the Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Ligeance was more by reason of the Kings Crowne that is of his politicke capacity then by reason of the person of the King upon which opinion they inferred 3. execrable and detestable consequences 1. If the King doe not demeane himselfe by reason in the right of his Crowne his lieges are bound by Oath to remove the King 2. seeing that the King could not be reformed by suit of Law that ought to be done per aspertee that is by force 3. That his lieges be bound to governe in aid of him and in default of him All which were condemned by two Parliaments one in the raigne of Edw 2. called exilium Hugonis le Spencer and the other in Anno 1. Edw. 3. cap. 2. And that the naturall body and politicke makes one indivisible body and that these two bodies incorporate in one person make one body and not divers is resolved as the Law of England 4. Eliz. Ploydon Com. fol. 213. by Sir Cobert Catlin Lord Chiefe Justice of England Sir James Dier Lord Chief Justice of the Common Pleas the Lord Sanders Lord Chiefe Baron of the Exchequer and by the rest of the Judges viz. Justice Rastall Justice Browne Justice Corbet Justice Weston Baron Frevyll Conne and Pewdrell Sergeant Gerrard Atturny Generall Carreâ— Atturny of the Dutch Plowdon the learnedst man of that age in the knowledge of the Law and Customes of the Realm 8. The Law in all ages without any controversie is and hath beene That no Act of Parliament bindes the Subjects of this Land without the assent of the King either for person Lands Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the vertuall Power be in the Houses there needes no assent of the Kings The stiles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either 9 Hen. 3. Magna Charta So in every age till this day and in every Kings time as appears by the Acts in Print 1 part of the Instit Sect. 234. in fine where many of the Law-Bookes are cited 7. H. 7.14.12 of Hen. 7.20 The King ordaines at his Parliament c. or the King ordaineth by the advice of his Prelats and Barons and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath sithence continued thus It is ordained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law-Bookes call the King the Fountaine of Justice and the life of the Law 9. 2. H. 4. c. 22. 4 pars instit 42. M. Prin in his Treatise of the great Seale Fol. 17.27 Hen. 8. Chap. 24. Mercy as well as Justice belongs by the law of the Land only to the King This is confessed by Master Prynn and it is so without any quection The King can only pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27 Hen. 8. Cap 24. 10. Queene Elizabeth summoned her first Parliament to be held the 23. of January in the first yeare of Her Majesties Raigne The Lords and Commons assembled by force of the same writ the 23. day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25. of the same Month of January Resolved by all the Judges of England 3 Of Eliz. Dier 203. that the Parliament began not the day of the returne of the writ viz. the 23. of January when the Lords and Commons appeared but the 25. of the said moneth when the Queen came in person Which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sense They have the King now a prisoner at Holmby with guards upon him and yet they governe by the vertuall Power of their Prisoner These are some of the causes and reasons which moved me to deliver that paper to Master Corbet which I am ready to justifie with my life and should hold it a great honour to die for the honourable and holy Lawes of the Land That which will save this Land from destruction is an Act of Oblivion and His Majesties gracious generall pardon the Souldiers their Arears and every man his owne and Truth and Peace established in the Land and a favourable regard to the satisfaction of tender Consciences Aprill 29. 1647. David Jenkins THE ARMIES INDEMNITY With Addition Together With a Declaration shewing how every Subject of England ought to be tried for Treasons Felonies and all other Capitall Crimes as it is set down in the Lawes of the LAND By David Jenkins now Prisoner in the Tower of LONDON Printed in the Yeare 1647. The Armies Indemnity c. UPon the publishing of the Ordinance of the 22. of May last for the Indemnity of the Army certain Gentlemen well affected to the peace of the Kingdome and safety of the Army desired me to set downe in writing whether by the Law of the Land the said Ordinance did secure them from danger as to the matters therein mentioned For whose satisfaction in a businesse wherein the lives and fortunes of so many men were concerned and the Peace of the Kingdome involved I conceived I was bound in duty and conscience faithfully and truly to set downe what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Army by the Law of the Land is apparent to all men 25. Ed. 3. c. 11. 2 Ri. 2. cap. 3. 1 Hen. 4. c. 10. 1 and 2. Phil. and Mary c. 10 It is high Treason by the Law of the Land to leavy warre against the King to compasse or imagine his death or the death of his Queene or of his eldest Sonne to counterfeit his Money or his great Seale They are the words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and
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
and the subversion of the Law and Land laying taxes on the people never heard of before in this Land devised new oathes to oppose forces ray fed by the King not to adhaere to him but to them in this Warre which they call the Negative Oath and the Vow and Covenant By severall wayes never used in this Kingdome they have raised monies to foment this warre and especially to inrich some among them namely first Excise secondly Contributions thirdly Sequestrations fourthly Fift parts fiftly Twentieth Parts fixtly Meale-money seventhly Sale of Plundered goods â—ightly Loanes ninthly Benevolences tenthly Collections upon their Fast-dayes eleventhly new Inpositions upon Merchandizes twelvethly Guards maintained upon the charge of private men thirteenthly Fifty Subsidies at one time fourteenthly Compositions with such as they call Delinquents fifteenthly Sale of Bishops lands c. From the Kings party meanes of subsistance are taken 1 R. 3. cap. 3. â—ract li. 3. c. 8. Stanford 192. Sir Ger. Fleetwoods Case 8. pars Cook 7. H. 4 last lease before any indictment their Lands seized their goods taken the Law allows a Traytor or Fellon attainted Necessaria sibi familie sua in victâ—â— vâ—stitu where is the Covenant where is the Petition of light where is the liberty of the subject First We have ayded the King in this warre contrary to the negative oath and other votes Our warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly Wee have maintained the Commission of Array by the Kings Command contrary to their votes We are warranted by the statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the Oracle of the Law as they call him Thirdly We maintained Arch-Bishops and Bishops whom they would suppresse Our warrant is Magna Charta and many statutes more Fourthly we have maintained the booke of Common prayer they suppresse it Our warrant is five acts of Parliament in Edward the sixt and Queene Elizabeths time 5. Peschâ— 35. Elizabeth inter placita Coronae in Banco Regis New booke of Entries sol 252. Penry for publishing two scandalous Libels against the Church government was indicted arraigned attainted and executed at Tyburne Fifthly We maintained the Militia of the Kingdome to belong to the King they the contrary Our warrant is the statute of the seventh of Edward the first and many statures sithence the practise of all times and the custome of the Realm Sixthly We maintained the counterfeiting of the great Seale to be high Treason and so of the usurpation of the Kings Forts Ports Shipping Castles and his Revenue and the Coyning of money against them We have our warrant by the said statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Seventhly We maintaine that the King is the only supreme govermour in all causes They that his Majesly is to be governed by them Our warrant is the statures of the first of Q. Eliza. Chapter the first and the fifth of Q. Elizabeth the first Eighthly 9. Ed. 4. sol 4. Wee maintaine that the King is King by an inhaerent birth-right by nature by Gods law and by the layâ— of the Land They say his Kingly right is an 〈…〉 Our warrant is the statute of the first of King Jaâ—â—â— Chapter the first And the resolution of all the Judges of England in Calvins case Ninthly We maintain that the politick capacity iâ— not to be severed from the naturall They hold the contrary Our warrant is two flatures viz. â—xilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to posterity that it is damnable detestable and execrable Treason Calvins case pars 7. fol. 11. Tenthly we maintain that who aids the King at home or abroad ought not to be molested or questioned for the same they hold and practise the contrary our warrant is the statute of the eleventh of Henry the seventh Chapter the first Eleventhly We maintain that the King hath power to disassent to any Bill agreed by the two Houses which they deny Our warrant is the Statute of the second of Henry the fift and the practise of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly We maintain that Parliaments ought to be holden in a grave and peaceable manner without â—â—ults They allowed multitudes of the meanest sort of people to come to Westminster to cry for Coll. of Ord. fol. 31. Justice when they could not have their will and keep guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly We maintain that there is no state within this Kingdome but the Kings Majesty and that to adhere to any other State within this Kingdome is high treason our warrant is the Statute of the third of King James Chapter the fourth and the â—â—enty third of Queen Elizabeth Chapter the first Fourteenthly We maintain that to levy a warre to remove Councellours to alter religion or any Law established is high Treason They hold the contrary One warrant is the resolutions of all the judges of England in Queen Elisabeths time and their oracle agrees with the same Fifteenthly We maintain that no man should be imprisoned put out of his Lands but by due course of Law and that no man ought to be adjudged to death but by the Law established the customer of the Realm or by act of Parliament They practise the contrary in London Bristol Kent c. Our warrant is Magna Charta Chapter the twenty ninth the Petition of right the third of King Charles and divers Lawes there mentioned We of the Kings party did and do detest Monopolies and ship money and all the grievances of the people as much as any men living we do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his lawes we love Parliaments if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640 to the tenth of Ianuary 1641 time to punish them being all left to Justice where is the Kings fault The law faith the King can do no wrong 11 pars Cooks Reports Magdalen Colledge Cale that he is medicus Regni pater patriae sponsus regni qui per annlum is espoused to his Realm at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament A succeeding Parliament may repeal them The objection is very weak a Parliament succeeding to that may repeal that repealing Parliament That feare is endlesse and remedilesse for it is the
said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. â—â—t the new count câ—fe it Seale was made when the King was at Gâ—xford in his own kingdome and not in the holy Land Mâ— Prynne in his Book of the two Houses power to impose Taxes restraines Malignants against any Habeas Corpus 20. Ob. 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. Student 2. Dialogue For example it saith cap 18 Justice shall not be sold delayed noâ— 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 Nâ—â—â— castlâ— 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 â—o have power without him today upon the people of this land what taxes they think 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 Majesâ—y finding 〈◊〉 prevailing pâ—rty in both Houses to 〈…〉 and being chased away with Tumults from London leaves the Houses for these Reasons 〈◊〉 First because to 〈◊〉 the Government for Religion in against the king 〈◊〉 〈◊〉 against their Oathes For every of them hath sworne in this Parliament That His Mâ—jâ—sty is the 〈◊〉 supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly This course is against Magna Charta the 1. chap. and the last Salvae suis Episcopis omnes libertates suae Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third in 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 bee the Common Law of the Land Fourthly they endeavour to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Book of Common-Prayer setled by five Acts of Parliament and compiled by the Reformers and Martyrs and practised in the time of foure Princes Fifthly these Propositions taking away from His Majesty all his power by land and Sea rob him of that which all his Ancestours kings of this Realme have enjoyed That Enjoyment and Usage makes the Law and a Right by the same to His Majesty They are against their owne Protestation made this Parliament viz. to maintaine His Royall person Honour and Estate They are against their Covenant which doth say that they will not diminish His Just Power and Greatnesse For these Reasons His Majesty hath left them and as iâ— beleeved will refuse to agree to the said Propositions as by the Fundamentall Law of the land hee may having a Negative Voyce to any Bills proposed The result of all is upon the whole matter That the king thus leaving of the Houses and his Denyall to passe the said Propositions are so farre from making him a Tyrant or not in a condition to Governe at the present That thereby hee is rendred a Just Magnanimous and pious Prince so that by this it appeares clearly to whom the Miseries of these Times are to be imputed The remedy for all is an Act of Oblivion and a Generall pardon God save the KING DAVID JENKINS now Prisoner in the Tower 28 Aprilis 1647. THE CORDIALL OF JVDGE JENKINS For the good People of LONDON In Reply to a thing called AN Answer to the Poysonous Seditious Paper of Mr David Jenkins By H.P. Barrester of Lincolns-Inne Printed in the Yeare 1647. The Cordial of Judge Jenkings for the good People of London c. After the said Mr H.P. hath made a recitall of the Heads of my Vindication hee deduceth his Answer unto these eight Particulars which follow verbatum 1. It cannot be denyed but the Parliament sits by the Kings Writ â—ay if Statute Law be greater then the Kings Writ it cannot be denyed but the Parliament sits or ought to sit by something greater then the Kings Writ And if it be confessed that the Parliament sits by the Kings Writ but does not Act by the Kings Writ then it must follow that the Parliament is a void vaine Court and sits to no purpose nay it must also follow that the Parliament is of lesse authority and of lesse use then any other inferiour Court forasmuch as it is not in the Kings power to controule other Courts or to prevent them from sitting or Acting 2. This is a grosse non sequitur the Kings power is in himself Ergo it is not derived to nor does reside virtually in the Parliament For the light of the Sun remaines imbodied and unexhausted in the Globe of the Sun at the same time as it is diffused and displayed through all the body of the â—yre and who sees not that the King without emptying himselfe gives commissions daily of Oyer and Terminer to others which yet he himselfe can neither frustrate nor clude but for my part I conceive it is a great errour to inferre that the Parliament has onely the Kings power because it has 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 Kingdom And this in some things is more obvious and apparent then in others For by what power does the Parliament grant Subsidies to the King if only by the power which the King gives then the King 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 will follow the Parliament has a power given both by King and Kingdome 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 beseeme a superiour to preferre suite to an inferiour for matters in themselves duâ— God himselfe has not utterly disdained to beseech his own miserable impious unworthy creatures besides t is not our Tenet that the King has no power because he has not all power nor that the King cannot at all promote our happinesse because hee has 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
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-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
the Lawes of the Land and liberties of the Subject to take up Armes against their naturall Liege Lord and Soveraigne the King The People is the Body Mag. Char. c. 1. ultim All the act concerning the King Church and Churchmen 25. E. 1. c. 1. the King is their Head was the Body sufe when the Head was distressed and imprisoned For Lawes and Liberties have not the prevailing paâ—tie in the two Houses destroyed above 100 Acte of Parliament and in 〈◊〉 Magun Charta Chorta de Forestâ— which are the common Lawes of the Land Doth Excize Fifth and Twentieth Parts Meale-money and many more burdens which this Land never heard of before maintaine the Liberties of the people You and that partie of the two Houses made the Army by severall Declarâ—tions before ingagement believe that you would preserve the Kings Honour and Greatnesse the Lawes and Liberties of the people The Army and the whole Kingdome â—ow 〈…〉 see your actions and have no reason longer to belâ—eve your Oaths Vowes and Declarations and fince that partie in the two Houses refuse to performe any thing according to their said Oathes Vowes and Declarations The Army and the Kingdome may and ought both by your own principles and the Lawes of the Land pursue the end for which they were raysed And so your first Quaere is resolved whereby it is manifest that specious pretences to carry on ambitious and pernicious designes fix not upon the Army but upon you and the prevailing partie in both Houses The Solution of the second Quaere The Army 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. par Instit f. 12.39 Eli. 1. Iacob ibi 2. 3. E. 6. cap. 2. 11. H. 7. c. 1. to their eternall honour have freed the King from imprisonment aâ— Holmby It was High Treason to imprison His Maâ—estie 〈◊〉 Tofâ—â—â— His Majestie from that imprisonment was to deliveâ—â— Him out of Traiteroâ—s mands which was the Armies bounden dutie by the Law of God and the Land That partie refused to suffer His Majestie to have two of His Chaplaines for the exercise of His Conscience who had not taken the Covenant free aceesse waâ— not permitted doth the Army use His Majestie so all men see that accesse to Him is free 〈…〉 and such Chaplaines as His Majestie desired are now attending on His Grace Who are the guiltie persons the Army who in this action of delivering the King act according to Law or the said partie who acted Treasonably against the Law Who doth observe the Protestation better they who imprison their King or they who free Him from prison That this Army was raysed by the Parliament is 〈◊〉 false The Army was raysed by the two Houses upon the specious pretences of the Kings Honour common saâ—etie and the preservation of Lawes and Liberties which how made good hath beene shewed before and all the people of the Kingdome doe find by wofull experience The two Houses are no more a Parliament then a Body without a Head a man 14. Hâ—â— â— 36. H. 8. Dier 60. 4. par Instit p. 1.3.12.14 16. R. 2. c. 1. 5. Eliz. c. 2. 17. Carol. The act for the continuance of this Parliament The two Houses can make no Court without the King they are no Body Corporate without the King they all Head and Members make one Corporate Body and this is so cleare a truth that in this Parliament by the Act of 17 Caroli it is declared That the Parliament shall not be dissolved or prorogued but by act of Parliament but the two Houses may respectively adjourne themselves two Houses a Parliament are severall things Cunct a fidem vero faciunt all circumstances agree to prove this truth Before the Norman Conquest and sithence to this day the King is holden Principall Caput finis that is the beginning Head and chief end of the Parliament as appeareth by the Treatise of the manner of holding of Parliaments made before the Norman Conquest 4. par Instit pag. 12. by the Writ of Sumons of Parliament whereby the Treaty and Parler in Parliament is to be had with the King onely by the Common Lauâ— by the Statute-Law by the Oath of Supremacy 4. par Instit pag. 4.9 5. Eli. c. 1.2 taken at this and every Parliament it doth manifestly appeare that without the King there can be no colour of a Parliament How many Votes have they revoked in one Session yea and Bills Was there ever the like done Nay is not the constant course of Parliaments violated and made nothing thereby They are guarded by Armed-men 〈…〉 divide the publique money among themselves and that partie indeavours to bring in a Forreigne to invade this Land againe If they be no Parliament as clearely they are none without His Majestie they have no privileges but doe exercise an Arbitrary Tyrannicall and Treasonable power over the people By the Law of the Land 7. E. 4.20 8. E. 4.3 9. E. 4.27 4. H. 7.18 27. H. 8.23 when Treason or Felony is committed it is lawfull for every Subject who suspects the Offender to apprehend him and to secure him so that Justice may be done upon him according to the Law You say The disobedience of the Army is a sad publique president like to conjure up a spirit of universall disobedience I pray object not that conjuring up to the Army whereof you the prevailing partie in the Houses are guiltie who conjured up the spirit of universall disobedience against His Majestie your and our onely Supreme Governour But you and that partie in the two Houses and even then when the house of Commons were taking and did take the said Oath of Supremacy For the Covenant you mention it is an Oath against the Lawes of the Land against the Petition of Right devised in Scotland wherein the first Article is to maintaine the Reformed Religion in the Church of Scotland 2. pars Coll. of Ord. pag. 803. Petition of right 3. Car. 2. pars instit 719. And certainly there is no Subject of the English Nation doth know what the Scottish Religion is I believe the Army tooke not the Covenant No man by the Law can give an Oath in a new case without an Act of Parliament and therefore the imposers thereof are very blamable and guiltie of the highest Crime The Writer of these Quaeries seemes to professe the Lâ—wes let him declare what Act of Parliament doth justifie the tendring giving or taking of the said Oath he knoweth there is none he knoweth that all the parts of it are destructive of the Lawes and Government to maintaine which the Law of nature the Law of the Land had obliged them Mag. Chart. cap. 1. Ultimo Articuli cleri and many other statutes 16. Ed. 4.10 The Oath of the Covenant makes the Houses Supreme Governours in causes Ecclesiasticall the Oath of Supremacy makes the King so and yet both taken by the same persons at the same time