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
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
all persons this Oath is taken now in the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publike Affaires This Oath being taken in Parliament that the King is the only and Supreme Governour in all Causes then it followes in Parliament causes over all persons then over the two Houses let them keep this Oath and we shall be sure of peace in the Land and good Lawyers ought to desire peace both for the publike good and â—heir private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes We doe not sweare that the King iâ— above all Law nor above the safety of his people neither doe we so sweare but His Majesty and we will sweare to the contrary and have swom and have made good and will by Gods grace make good our Oath to the world that the King is not above the Law nor above the safety of his people the Law and the safery of his people are his safety his Honour and his Strength AD. 8. The Gent. concludes That Acts of Parliament are not formally binding nor compleat without the Kings assent yet the Houses have a virtuall power without the Kings particular assent to doe things in order to publike Iustice and Safety viz In setting up the Excise in raising and maintaining of Armies in taxing the peo-people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loanes Compositions imprisoning the King abolishing the Common-prayer-Book selling the Churches Lands c. all these are in order to the publike Justice and Safety Mr H.P. you are of my profession I beseech you for the good of your Countrey for the Honour of our Science perswade your selfe and others as much as in you lies to believe and follow the monition and Councell of that memorable reverend and profoundly learned in the Lawes and Customes of the Land the Lord Coke who writes as becomes a great and a learned Judge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finds a Principle in Law 3 Pars Instit p. 36. a Rule in Reason and a Tryall in Experience that Treason doth over producâ— futall and finall destruction to the offender and never attaines to the desired and two incidents inseparable thereunto and therefore lâ—t all men abandon it as the poysonous hait of the Devill and follow the Precept in holy Scripture SERVE GOD HONOVR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS CONCLUSION I Say againe that without an Act of Obliviow a gracious generall Pardon from His Majesty the Arreares of the Soulaiers paid a favorable regard had to tender Consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing be hath By me David Jenkins Prisoner in the Tower The End A DISCOURSE Touching the Inconveniencies of a Long continued Parliament AND THE IVDGEMENT OF THE LAW OF THE LAND In that Behalfe By DAVID JENKINS now Prisoner in the Tower of LONDON Printed in the Yeare 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament 1. Aerpetuall Parliament is repugnant to the Act made this Parliament for a Trienniall Parliament for how can every three years a Parliament begin if this be perpetuall which may be so if the two Houses please 2. An adjournment of the Parliament makes no Session 4 Pars Institut fol. 27. Howbeit before the Adjournment the King gives His Royall assent to some Bills Cooke ibid. 3. There is no Session till a prorogation or dissolution of the Parliament 4. This Parliament as appeares by the Act for not dissolving thereof set downe in the Printed Statutes of this Parliament fol. 138. cannot be prorogued but by Act of Parliament There hath beene as yet no Act of Parliament present and therefore all the Acts of this Parliament are Acts of one Session 5. All the Aâ—â—â— of one Session relate to the first day of the Parliament Plow â— com 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier 1 Mariae 45. and all the Acts of such a Paâ—liament are Acts of one day so the Act for the Trienniall and the Act for this Perpetuall are two Acts of one day by the Law 6. 4 Ed. 3. cap. and 36 Ed. 3. cap. 10. A Parliament is to bee holden once every yeere and more often if need shall bee those Acts are confirmed by the Act for the Trienniall Parliament How doth a perpetuall Parliament agree with a Parliament once every yeere or with the intention of those Lawes How doth a Parliament every three yeers agree with a Parliament for ever which may be if the two Houses please 7. The result is this at one day in Law this Parliament two Acts have passed for howbeit the one was in 16â— Carol. and the other in 17. Carol. yet both in Law are Acts of one day the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parliament The other this Parliament shall sit for ever if they please The one will have a Parliament with an end the other a Parliament without an end When an Act of Parliament is against common right or Reason 8 Pars Doct. Bonhams case fol. 118. 8 Ed. 3.30 33 E. 3. cessavit 32. 27. H. G. Annuity 11. 14 Eliz. Dier 313. or repugnant or impossible to bee performed the Common Law shall controle it and adjudge this Act to bee void they are the words of the Law An Act of Parliament that a man shall bee Judge in his owne cause is a void Act. Begin with Common Right It is against Common Right that indebted men should not pay their debts That if any Member of the House of Comons doe any Subject wrong by diffeising him of his land or dispossessing him of his goods or blasting of his fame or doing violence to his person that such persons during their lives should not bee questioned by a priviledge of Parliament and that extended also to many others besides themselves Common Right doth abhorre these enormities which a perpetuall Paliament doth beget besides the utter destruction of all mens actions reall personall or mixt who have to doe with Parliament men 21 Jac. by the Statute of Limitation which confines suits to certain yeares For Common Reason Parliaments were ordained for remedies to redresse publike grievances It is against Reason they should make publike and insufferable grievances The Law of the Land allowes no protection for any man imployed in the service of the Kingdome but for a yeare to be free from suits and in many suits none at all howbeit hee be in such service 39 H. 6.39 but a Parliament perpetuall may prove a protection not for a yeare but for ever which is against all manner of Reason For
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
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
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
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
Spencers did either that the King may be removed for misdemeanours or reformed per aspertè or that the Subject is bound to govern in ayde of him we only say that his power is distinguishable from his person and when he himself makes a distinction betwixt them commanding one thing by his Legall Writs Courts and Officers and commanding another thing extrajudically by word of mouth Letters or Ministers we are to obey his power rather then his person 5. We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo For if the King pardon him which hath murthered my sonne his pardon shall not cut me off from my appeale and 't is more unreasonable that the Kings pardon should make a whole State which hath suffered remedilesse then any private man So if the King should deny indemnity to these which in the furie of Warre have done thingâ— unjustifiable by the Lawes of Peace and thereby keep the wounds of the State from being bound up 't is equitable that an Act of Indemnity should be made forcible another may And if this will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolâ—â—e in all things else and the Parliament hath no power to discharge Delinquencies therefore it hath no power in other matters 6. The Parliament hath declared the King to be in no condition to govern but this must not be interpreted rigidly and without distinction for if the King with his sword drawn in his hand and pursuing the Parliament and their adherents as Rebels be not fit for all Acts of Government yet 't is not hereby insinuated that he is divested of the habit or right of governing If he be unqualified now he is not unqualified for the future if he may not doe things destructive to the Parliament he is not barred from returning to the Parliament or doing justice to the Parliament This is a frivolous cavil and subturfuge 7. We sweare that the King is our supreme Governour over all persons and in all Causes but we doe not sweare that he is above all Law nor above the safety of his people which is the end of the Law and indeed Paramount to the Law it selfe If he be above all Law or liable to no restraint of our Law then we are no freer then the French or the Turks and if he be above the prime and of Law common fafety then we are not so free as the French or Turks For if the totall subversion of the French or the Turk were attempted they might by Gods Law imprinted in the Book of Nature justifie a self-defence but we must remedilesty perish when the King pleases to command our threats Besides how atchieved the King of England such a Supremacie above all Law and the community it selfe for whose behoofe Law was made If Gods donation be pleaded which is not speciall to him or different from what other Kings may pretend toâ— then to what purpose serve our Laws nay to what purpose serve the Laws of other Countries for by this generall donation all Nations are condemned to all servitude as well as we If the Law of this Land be appealed to what Books hath Mr Ienkins read where hath he found on t that Lex Regia whereby the people of England have given away from themselves all right in themselves Some of our Books tell us that we are more free then the French that the King cannot oppresse us in our our persons or estates by imprisonment denying justice or laying Taxes without our consents other Books tell us that the safety of the people is the supreme Law and that the King hath both God and the Law for his Superiour But all this is nothing to learned Mr Ienkins 8. We admit that no Acts of Parliament are compleat or formally binding without the Kings assent yet this is still to be denyed that therefore without this assent particularly exprest the two Houses can doe nothing nor have any virtuall power at all no not to examine Mr Ienkins nor to doe any other thing of like nature though in order to publick justice and safety I have done and wish Mr Ienkins would call in and lick up againe his black infamous execrable reproaches so filthily vomited out against the Parliament To the first I Was examined by a Committee appointed by the House of Commons I say and said that the House of Commons have no power to examine me for that it is no Court every Court hath power to examine upon Oath this power the House of Commons never claimed The Court of Pie-powders Court-Baron Hundred Court 5 H. 4. c. 3. 3 H. 6.46 1 H 6.43 35 H. 6.5 County Court and every other Court of Record or not of Record hath power to examine upon oath and an examination without Oath is a communication only examination in Law is upon Oath There is no Court without a power of tryall the House of Commons have no power to try any offence Sir Anthony Maynes case Cook 5. pars Reports Lit. 2. lib. Sect. 194.6 H. 4.1 nor ever practised it by Bill Inditement Information Plaint or Originall to deduce it to tryal nor to try it by Verdict Demurrer or Examination of Witnesses upon Oath without which there can be no condemnation or judgement and that which can attaine to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit a fine The Writ Whereby they are called gives them power Aâ— faciendum consentiendum to what to such things Que ibidem de communi Consilie ordinari contigerint 4 pars instit fol. 4. 9. viz. in the Parliament This makes nothing at all for a Court for the House of Commons that consilium which that Writ intends is cleared partly by the Writ for chusing Knights c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peeres of the Kingdome for and touching the great concernments of the Common-wealth for the King never sits in the House of Commons and this also is made evident by the Writs to the Prelates Peeres Iudges and to his Councell at Law the words in their Writ are To appear and attend the Parliament consilium impensuri the one doth consulere the other facere consentire The House of Lords where the King sits in person 7. H. 6.28 1 H. 7.20 13. E. 3. ca. 5. 4 pars instit pag. 21. assisted by his Lords Judges Serjeants Atturney Sollicitor Masters of the Cnancery is a Court of Record to many purposes set down in the Books of Law and the Statutes of the Land and that Court is only in the House of Lords where the Kings sits A Court must either be by the Kings Patent Statute Law or by the Common Law which is common and constant usage the House of Commons hath no Patent to be a
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