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A65018
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The vindication of Judge Jenkins prisoner in the Tower, the 29. of Aprill, 1647
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Jenkins, David, 1582-1663.
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1647
(1647)
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Wing V479A; ESTC R202708
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4,324
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10
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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 nor divers is resolved as the Law of England 4. Eliz. Ploydon Com. fol. 213. by Sir Cobert Catlin Lord Chiefe Justice of England Sir Iames Dier Lord chiefe Justice of the Common Please 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 Carell Atturry of the Dutch Plowdon the learnedest 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 9. Hen. 3. Magna Charta So in every age till this day in every Kings time as appeares by the Acts in Print 1 part of the Instit Sect. 234. in fine where many of the Law-Bookes are cited 7 Hen. 7. 14. 12. of Hen. 7. 20. 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 The King ordaines at his Parliament c. or the King ordaineth by the advice of his Prelates and Barons and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath sithence continued thus It is ordained by the Kings Majesty the Lords spirituall and temporall and Commons in this present Parliament assembled So that always the Assent of the King giveth the life to all as the soul to the body and therefore our Law-Bookes call the King the Fountaine of Justice and the life of the Law 9. Mercy as well as Justice belongs by the law of the Land only to the King 2 Hen. 4. Cap. 22. 4 pars instit 42. Mr. Prin in his Treatise of the great Seale Fol. 17. 27. Hen. 8. â— Chap. 24. This is confessed by Mr. Prynn and it is so without any question 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 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. H. 8. Cap. 24. 10. Queen Elizabeth summoned her first Parliament to be held the 23 of Jan. in the first yeare of her Majesties Raigne The Lords and Commons assembled by force of the same writ the 23 day the Queene fell sicke 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 Iudges of England 3 of Eliz. Dier 203. that the Parliament began not the day of the returne of the writ viz. the 23 of Ianuary when the Lords and Commons appeared but the 25 of the said moneth when the King 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 few of the causes reasons which moved me to deliver that paper to M. Corbet which I am ready to justifie with my life and should hold it a great honour to die for the honorable 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 Arriers and every man his owne and Truth and Peace established in the Land and a favourable regard had to the satisfaction of tender Consciences Aprill 29. 1647. David Ienkins
THE VINDICATION OF JUDGE JENKINS Prisoner in the TOVVER the 29. of Aprill 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 downe 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 only 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 do 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 Pattent 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 Laws which I will not do to save my life You your selves all of you this Parliament have sworne that the King is our only 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 Laws those Laws 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 examined by you without a power derived by His Majesty I neither can nor will nor ought you to examine me upon any questions 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 Ienkins 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 Mr. 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 vertually 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 Declaration 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. The Law of the Land is 5. Elizab. Cap. 1. 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 onely 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 onely supreame Governour by the other that he is not in a condition to governe 3. The Oath is not that the King was or ought to be or had beene 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 Who ever heard sithence 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 practise 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 Oaths 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 vertuall 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 vertuall Power with them at Westminster 7. To affirme that the Kings power which is the vertue they talke of is 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 Cooke so much magnified by this present Parliament who in the 7 part of his Reports in Calvins case fol. 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