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
two Houses c. It is true the King cannot controle or prevent his other Courts for that they are his ordinary Courts of common Iustice to administer common right unto all men according to the fixed Lawes 14 H. 8.3 36 H. 8. Dier 60. The Houses make no Court without the King they are no body corporate without the King nor Parliament without the King they all make one corporate body one Court called the Parliament 4 Pars Instit pa. 1. whereof the King is the head and the Court is in the Lords House where the King is present and as a man is no man without a head so the Houses severed from the King as now they are have no power at all and they themselves by levying waâ— against the King and imprisoning of him have made the Statute for not dissolving adjourning or proroging this Parliament of no effect by the said Acts of their own they sit to no purpose without his assent to their Bills they will not suffer him to consult with them and treat and reason with them whereby he may discern what Bills are fit to passe and what not which in all Ages the Kings of this Land have enjoyed as their undoubted Rights and therefore they sit to no purpose by their own disobedience and fault For the ordinary Courts at Westminster 27 H. 8. c. 24. 28 H. 8.11 Dier the Iudges in all those Courts are Iudges by the Kings Patent or Writ otherwise they are no Iudge the Houses can make no Iudges they are no Iudges at all who are made by them the whole sole power of making Iudges belongs to the King the King cannot controule or prevent his own Iudges from sitting or acting but the Houses hee may for they are not the Kings Iudges but the Iudges of the two Houses 2 R. 3.11 In his other Courts the King commits his power to his Iudges by his Patent and they are sworn to doe common right to all men and the King is sworn not to let them from so doing the King cannot judge in those Courts nor controule but the King is both Iudge and Controller in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bills Many Lawyers have much to answer to God this Kingdome and to pâ—sterity for puzling the poore of this Land with such Fancies as the Gentleman who wrote the Answer to my Paper and others have published in these Troubles which hath been none of the least causes of the raysing and continuing of them And so I have with the first part of his Answer AD. 2. For the Non sequitur in the second Section of the Gent. Answer the Antecedent and the Censequent are his own Quem recitas meus est ô Fidentine libellus Sed malè dum recitas incipit esse tuus My words are that the King is not virtually in the two Houses at Westminster to enable them to grant pardons for that whole and sole power by the Law belongs to the King My Paper hath no such thing 27 H. 8. c. 24. as that the Kings power cannot be derived to others or the vertue of his power For his power and the vertue of his power is in all Patents to his Iudges in Charters to Corporations in Commissions of all sorts and in the Parliament assembled by force of his Writ of Summons so long as they obey him but when they renounce that power and claime it not from the King and declare to the Kingdome that he is not in condition to govern and imprison him and usurp to themselves all Royall Authority as the two Houses now doe no reasonable man can affirm that they act by the power of their prisoner who hath no power to give them that by force of Armes take all the power to themselves The Gent. saith the King grants Commissions daily of Oyer and Terminer which he cannot frustrate nor â—lude 4 E. 4.39 5 F. 4.4 1 Eliz Dyer 165. 1 Mar. Brooks case 447. The King may revoke and discharge the Commission by his Writ as he may remove all Iudges and place other men in their roome and any Kings death determines all the Iudges Patents of Westminster Hall Commissions of Oyer and Terminer c. and so he might dissolve both Houses in all times by his Writ under the Great Seale untill that by this Parliament by his own concession the King of his goodnesse hath secluded himself which goodnesse hath been full ill requited The Gent affirms That the power the Parliament hath is concurrent from the King and Kingdome which he conceives is proved by the Grant of Subsidies to the King by the Parliament The mistaking of this word Parliament hath been mischievous in these times to this Land 4 Pars Instit pag 1. and it is affectedly mistaken which makes the sinne the greater for the two Houses are not the Parliament as before is declared and at this time so to inculcate it when all men know that of the 120 Peeres of the Kingdome who were Temporal Peeres before the Troubles there are not now above 30 in the Lords House and in the House of Commons about 200 of the principall Gent. of the Kingdome left the House and adhered to his Majesty who is imprisoned by them shewes no such candor as is to be desired It is true that no Tallage can be layd upon the people of this Land 25. E. 1. confirmatio chartarum cap. 6. 34. E. 1. cap. 1. de Tallagio non concedendo but by their consent in Parliament as appeareth by the Lawes mentioned in the Margent but you shall finde in Mr Sâ—ldâ—ns learned Book called Mare Clausum a number of Presidents in Henry the Thirds time for Ship-money justly condemned this Parliament to the which his Majesty assented and in truth that Ship-money was condemned before by the said two Statutes of 25. E. 1. 34. E. 1. de Tallagio non concedendo Danegelt Englitery and many grievous burthens were laid upon the people and born untill that memorable Princes time But I am of opinion that the Common Law of the Land did alwayes restraine Kings form all Subsidies and Tallages but by consent in Parliament which doth appear by Magna Charta the last chapter where the Prelates Lords and Communalty gave the King the fifteenth part of their moveables In truth it is no manner of consequence because the King cannot take what he pleaseth of the subâ—ects goods that therefore they have a concurrent power in Parliament there have been many Parliaments and no Subsidies granted Parliaments may be without Subsidies but Subsidies cannot be without Parliaments of ancient time Parliaments rarely granted any unlesse it were in the time of forraine Warres and in my time Qâ— Elizabeth refused a Subsidy granted in Parliament and in the Parliament of â— Jac. none were granted The Gent. should make a conscience of blinding the people with such untrue colours to
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
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
facto but not de jure Ed. 4. c. â— but not de jure as appeares by the Acts of Parliament declaring them so And by all our Law-Bookes and the fundamentall constitution of the Land Regall power is hereditarie and not elective For the words vulgus-elegerit if vulgus be applyed to the House of Commons 1 H. 7. they of themselves can make no Lawes The Peeres were never yet tearmed vulgus but allowing they be so called the Lawes to be made must be just and who is fit to judge thereof is before made evident Customes cannot referre to future time â—5 Ob. and both are conpled Lawes and Customes Princes have beene deposed and may be by the two Houfes go. The deposers were Traytors Sol. as appeares by the resolution of all the Judges of England Coke Chap. Treason in the second part of the Institutes And never was King deposed but in tumultuous and mad times and by the power of Armies and they who were to be the succeeding Kings in the head of them as Edward the third and Henry the fourth The appeale to the Parliament for errors in judgements in all Courts 16 Ob. is frequent go. This is onely to the House of Lords Sol. and that is not the Parliament the House of Commons have nothing to doe therewith and in the House of Peeres if a Writ of Error be brought to reverse any judgement there is first a petition to the King for the allowance thereof and the reason of the Law in this case is for that the Judges of the Land all of them the Kings Councell and twelve Masters of the Chancerie assist there by whose advice erroneous judgements are redressed The Parliaments have determined of the rights of Kings 17 Ob. as in Henry the sixts time and others and Parliaments have bound the succession of Kings as appeares by the Statute of the thirteenth of Q. Elizab. Chapter the first and the discent of the Crowne is guided rather by a Parliamentarie Title then by Common Law go. If this Objection be true Sol. that the Title to the Crowne is by Parliament then we had no Usurpers for they all had Parliaments to back them yea Richard the third that Monster All cur Bookes of Law say they have the Crowne by discent and the Statutes of the Land declare that they have the same by inherent birth-right And the Statute of the thirteenth of Elizabeth the first Chapter was made to secure Q Elizabeth against the Qu. of Scaâ—â— then in the kingdome clayming the Grown of England and having many adherent◠〈…〉 〈…〉 〈…〉 And that Statute to that end a firmes no such power in the two Homfor which is the Question but in Q Elizabeth and the two Houses which makes against the pretence of this time Master Prynne fol. 104. of his booke intituled The Parliaments supreme power c. Objecting the Statute of the first of Queen Elizabeth and his own Oath that the king is the onely supreme Governour of this Realme Answers The Parliament is the supreme power and the king supreme Governour And yet there he allowes him a Negative Voyce and fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-law to others who had no good Title then the Parliamentary Title makes not the king so powerfull in truth that it escapes from a man unawares To make a distinction betweene Supreme Governour and Supreme power is very strange for who can Governe without power The king assembles the Parliament by His Writ adjourns Vide Speed 645.4 par Instit 27. 1. prorogues and dissolves the Parliament by the law at his pleasure as is evident by constant practise the House of Commons never sate after an adjournment of the Parliament by the kings command Where is the supreme Power The king by his Oath 1â—â— Ob. is bound to deny no man right much lesse the Parliament to agree to all just and necessary lawes proposed by them to the king This is the substance of the discourse against the kings Negative Voyce The king is so bound as is set downe in the Objection but who shall judge whether the Bill proposed be just and necessary Sol. For all that they doe propose are so pretended and carried in either House sometimes by one or two Voyces or some few as aforesaid and certainly as hath been shewn the king his Councell of State his Judges Sargeants Attorney Sollicitor and twelve Masters of the Chatcery can better judge of them then two or three or few more Mr. Pryn fol. 45. In his book of the Parliaments interest to nominate Privie-Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne a strange opinion Calvins case 7. pars fol. 11. and cites Calvins Case but leaves out the conclusions there in mentioned fol. 15. Master Prynne saith there But let this opinion bee what it will without the Kings Grace and Pardon it will goe very far and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Scale fol. 17. The Parliament hath no jurisdiction to use the Great Seale for Pardons Generall or Particular Where is the Supreme power Mr. â—9 Ob. Prynnes opening of the Seale pag. 19. saith The Noblemen and State the day after the Funerall of King Henry the third King Edward the first his sonne being in the Holy Land made a new Great Seale and Keepers of the same And in Henry the sixts time in the first yeere of his Reigne the like was done in Parliament A facto Sol. ad jus is no good Argument for that in Edward the firsts time it was no Parliament for King Henry the 3. was dead which dissolved the Parliament if called in his time and it could be no Parliament of Edward the firsts time for no Writ issued to summon a Parliament in his Name nor could issue but under that New Seale it was so sodainly done after Henry the thirds death King Edward the first being then in the Holy Land it was the first yeere of his Reign and no Parliament was held that yeere nor the second yeere of his Reigne The first Parliament that was in his Reigne was in the third yeere of his Reigne as appeares by the Printed Acts. Also the making of that Seale was by some Lords then present What hand had the Commons in it Concerning the Seale made in Henry the sixths time the Protector was Vice-Roy according to the course of Law and so the making of that Seal was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protector in the kings Name summoned that Parliament and was Protector made by the Lords and not in Parliament as appeareth plainely for that Parliament was in the first of Henry the sixth and the first holden in his time and power given by Commission to the
Land or without any thing should lose or forfeit for doing their duty or service of Allegiance It be therefore ordained enacted and established by the King our Soveraigne Lord by the advice and assent of the Lords spiritual and temporall and the Commons in this present Parliament assembled and by authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upoâ— the King and Soveraigne Lord of this Land for the time being in his person and doe him true and faithfull service of allegiance in the same or be in other places by his commandement in his wars within this Land or without that for the said deed and true duty of allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by act of Parliament or otherwise by any processe of Law whereby hee or any of them shall lose or forfeit life lands tenements rents possessions hereditaments goods chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse And if any act or acts or other processe of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that act or acts or other processe of the Law whatsoever they shall be stand and be utterly void Provided alwaies that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degree soever they be of shall have any power or authority to pardon or remit any treason murders man-slaughters or any kinde of Fellonies c. but that the King shall have the sole and whole power and authority thereof united and knit to the Imperiall Crowne as of right it appertaineth c. And in the same it is enacted further that none shall have power of what estate degree or condition soever they be to make Justices of Eyre Justices of Assize Justices of the Peace c. but all such officers and Ministers shall be made by Letters Patents under the Kings great Seale in the name and by the authority of the King and his Heires and Successors Kings of this Realme In the first yeare of Queen Mary and the first Chapter It is enacted by the Queen with the consent of the Lords and Commons That no deed or offence by Act of Parliament made treason shall be taken deemed or adjudged to be high treason but only such as be declared and expressed to be treason by the Act of Parliament made 25. Ed. 3. cap. 2. before mentioned A Declaration of M. David Ienkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryalls of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Iuries and not otherwise unlesse it be by Act of Parliament THe common Law of this Land is That every freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concurre for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Chart. cap. 29. 2 part instit fol. 28 29.46.48 49 50. composed by Sir Ed. Cooke and published by the Order of the House of Commons in May 1641. No man shall otherwise be destroyed c but by the lawfull judgement of his Peers or by the common Law of the Land Peers to Noblemen are Noblemen Peers to the Commons are Knights Gentlemen c. Judgement of Peers refers to Peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by Indictment Presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29. and by 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Lawes Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suters to the King that what they had so done in future time might not be drawn into president because that which they had so done was against the Law b Rot. Par. 1. roule 4. E. 3. Num. 2. part inst page 50. with this 〈◊〉 grees Sir Joâ—n Lees case Rot. Par. 42. E. 3. Num. 22.23 2. inst fol. 50. with this agrees the practice and usage of all times in this Land all the free Commoners of this Kingdome have alwayes been tryed and acquitted or condemned in capitall causes by Jurers of their equalls An Ordinance bindeth not in Law at all c See 4. part inst fol. 23.48.292 2. part inst f. 47 48. and but pro tempore as the two Houses now affirme a mans life cannot be tryed by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. and 2. of Philip and Mary chap. 10. It is enacted that aâ—â— tryalls for Treason hereafter to be had shall be according to the course of the common-law If the crime charged upon any be treason against the two Houses against the Parliament it cannot be for there is no Parliament without the King that is no Treason in Law as appeares by 25. Ed. 3. chap. 2. 11. R. 2. chap. 3. 1 Hen. 4. cha 10. 1. and 2. Philip and Mary chap. 10. 3 part of the institutes Page 23. An Act of Parliament to make any a Judge where he is party is a void act d Dr â—oâ—ams case 8. part of Cooks reports for none can be a Judge and party in the same cause and therefore the House of Peers being a party touching the crime charged upon any man whom they would try by an Ordinance for Treason against both Houses cannot be a Judge By the Petition of Right e Petition of Right 3. Car. Regis if any man deserve death he ought to suffer the same according to the Lawes of the Land established and not otherwise but an Ordinance of the Lords is no established law The Protestation the Vow and Covenant the solemne League and Covenant the Declarations of both Houses had made and published sithence this unnaturall Warre are amongst other things sworne and set downe to be for the maintenance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said Protestation Vow and Covenant League and Covenant and
his Parliament shall declare otherwise they are the very words of the Law 3. Pars instit Pag. 22. 2. pars instit Pag. 47 48. 4. pars instit P. 23.48.29 King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason then there is declared as appeares by the Lord Cooke in the places cited in the Margin A Law-booke published by order of the House of Commons this Parliament 3. Pars instit cap. Treason Pa. 9 10 12. Mr S. Iohn the Sollicitor in his Speech upon the araignment of the Earle of Straford Printed by order of the House of Commons p. 7. 13. as appeares in the last leafe of the second part of the Institutes published likewise by their Order The Resolutions of all the Judges of England upon the said Statute of the 25. Ed. 3. as appeares in the said third part of the Institutes Chap. High-Treason have been that to imprison the King untill he agree to certaine demands is High-Treason to seize his Ports Forts Magazine for Warre are High-Treason to alter the Lawes is High-Treason The word King in the Statute of 25. Ed. 3. cap. 2. must be understood of the Kings naturall person for that person can only dye have a wife have a sonne or be imprisoned The Privilege of Parliament protects no man from treason or felony 4. Pars instit c. Parl. p. 25. howbeit he be a Member much lesse can they protect others Those who cannot protect themselves have no colour to make Ordinances to protect others who are no Members The Statute of 11. 11. M. 7. cap. 1. Hen. 7. cap. 1. doth by expresse words free all persons who adhere to the King The Army by an Act of Indemnity free themselves from all those dangers Stamford l. 2. fol. 99. 18 Ed. 3. Statutes at large 144. 20 Ed. 3. c. 1. 11. Rie 2. c. 10. 4 Pars instit Pag. 23.48.29 which an Ordinance can no more doe then repeale all the Lawes of the Land the whole and sole power by Law to pardon all Treasons Felonies c. being solely and wholly in the King as is cleared by the Statute of 27. H. 8. c. 24. and the Law of the Land in all times Having shewed the danger of the Army by the Law of the Land next consider the Ordinance of the Lords and Commons published the 22. of May last for their Indemnity By the ensuing discourse it doth appeare they have no Indemnity at all thereby The Indemnity proposed by the Ordinance is for any Act done by the authority of the Parl. or for the service or benefit thereof and that the Judges and all other Ministers of Justice shall allow thereof This Ordinance cannot secure the Army for these reasons I. Their Judges are sworne to doe justice according to the Law of the Land 3. Pars instit Pag. 22. 2 Pars instit 47 48. 1. Pars instit 193. Princes case â— â—â—perte and therefore the Judges must be forsworne men if they obey it because an Ordinance of both Houses is no Law of the Land and no man can beleeve they will perjure themselves so palpably and visibly in the eye of the world II. All trials for Treasons Felonies Robberies Magna Charta cap. 29. 25. Ed. 3. cap 4. 28. Ed. 3. cap. 3. 37. Ed. 3. cap. 8. 42. Ed. 3 cap. 3. and such like Capitall offences are by the Law of the Land to be by indictment of a Jury appointed out of the Neighbourhood where the offence was done There is no common Jury-man but understands what the Law is in these cases as well as the best Lawyers and the Law makes the Jury Judges of the fact whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience Declaration of the Army presented at Warden and Printed by the appointment of the Officers subscribed and thereupon doe rightly apprehend their danger Now no man can thinke that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countries and thereby utterly destroy their owne Rights and Properties III. If the Judges conceive as they may that the taking of other mens horses or goods is not by the Authority of Parliament or for the service and benefit thereof the souldier dyes for it they may say to steale or rob any man of his goods is not for the Parliaments service but against it which was alwayes the sence of the people and doubtlesse the Jurors will not thinke otherwise IV. This Ordinance is restrained to the authority 4. Pars instit pag. 1. 3. Pars instit pag. 22. 1. Pars instit pag. 1. 28. H. 8. sâ—l 11. Dier 38. H. 8. sol 60. 12. H. 7.20 1. Pars instit 159. Princes case 8. reports service or benefit of the Parliament The Lords and Commons make no more a Parliament by the Law of the Land then a body without a head makes a man for a Parliament is a body composed of a King their head the Lords and Commons the Members All three together make one body and that is the Parliament and none other And the Judges may ought and I beleeve will according to their Oathes proceed as not bound at all by this Ordinance For it is restrained to the Authority of Parliament â—â—vice or benefit thereof whereas the two Houses are not the â—â—â—liament but only parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people V. This Ordinance is against their Ordinances which expresly prohibit plundring 28 Aug. 1642. Col. of Ord. first part 565.592.605 severall Ordinances and so there is one Ordinance against another whereby their Judges have an out-let to proceed on the one or the other and thereby the Army hath no manner of security VI. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest here signifies in that Language to consult treat 1. Pars iastit 109. 1 Pars instit 110. 4 Pars p. 49. that is the sense of the word Parler in the French Tongue The Writ whereby the two Houses are assembled which is called the Writ of Summons of Parliament at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peeres the Judges and Kings Councell to consult and treate with the King that is the Parler of great concernments touching 1. the King secondly the defence of his Kingdome thirdly the defence of the Church of England It cannot be a Parliament that will not Parle with their King but keep him in prison and not suffer him to come to them and parle and therefore the Law and sence and reason informing every man that is no manner of Parliament the King with whom they should parle being so restrained that they will not