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 Sevenethly We mintayne that the King is the only supreme governer in all causâ—s They that his Majestie is to be governed by them Our warrant is the statutes of the first of Q. Eliza. Chapter the first and the fifth of Q. Elizabeth Chapter the first Eighthly We maintayne that the King is King by an inhaerent birth-right by nature by gods law and by the law of the land 9 Ed. 4. sol 4. They say his Kingly right is an office upon trust Our warrant is the statute of the first of king James Chapter the first And the resolution of all the Judges of England in Calvins case Nynthly We maintain that the politique capacity is not to be severed from the natural They hold the contrary Our warrant is two statutes viz. Exilium 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. sol 11. Tenthly We maintaine that who aydes the King at home or abroade 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 maintayne 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 Twefthly We maintayne that Parliaments ought to be holden in a grave and peaceable manner without tumults They allowed multitudes of the meaner sort of people to come to Westminster to cry for Justice when they could not have their will Coll. of Ord. fol. 31. and keepe guards of armed men to waite upon them Our warrant is the statute of the seventh of Edward the second and their Oracle Thirteenthly We maintaine that there is no state within this kingdome but the Kings Majesty and that to adhaere to any other state within this kingdome is high Treason Our warrant is the statute of the thrid of King James Chapter the fourth and the twentie third of Q. Eliza. Chapter the first Fourteenthly We maintayne that to leavy a warre to remove Councellours to alter Religion or any Law established is high treason They hold the contrary Our warrant is the resolutions of all the Judges of England in Quene Elizabeths time and their Orracle agrees with the same Fiftteenthly We maintaine that no men 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 customes of the Realm or by Act of Parliament Thâ—y practise the contrary in London Bristoll 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 fourtunes 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 a misse they had from the third of November 1640 to the tenth of January 1641 time to punish them being all left to Justice Where is the Kings fault The Law saith the King can do no wrong that he is medicus regni pater patriae spousus regni 11 pars Cookes Reports Magdalen Colledge Case qui per anulum is espoused to his Realme at his Coronation the King is Gods Lieutenant and is not able to doe 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 repeale them The objection is very weake a Parliament succeeding to that may repeale that repealing Parliament That feare is endlesse and remedilesse for it is the essence of Parliaments being compleate 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 prevailes the Parliaments are wicked as appeares by the examples recited before of extreame wicked Parliaments if the times be sober and modest prudent and not byassed The Parliaments are right good and honorable and they are good Medicines and salves but in this Parliament excessit medicina modum In this cause and warre betweene the Kings Majesty and the two houses at Westminster what guide had the subjects of the land to direct them but the Lawes What meanes could they use to discerne what to follow what to avoide but the Lawes The King declares it 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 and also renders a mans posterity base beggerly and infamons looke upon the Lawes and finde the lettr 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 finde the distinction and interpretation now put upon the Lawes of Abstractum Concretum 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 judgments whereby they might evidently perceive what side to adbaere to what satisfaction could modest peaceable and loyall men more defire A verbo legis in criminibus poenis non est recedendum hath beene 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
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 borne in London Westminster 7 Ed. 2. 4 pars instit 14. or the Suburbs This condemnes the multitudes coming to Westminster and the Guards of armed men All who held by Knights service 1 Ed 2. de Militibus and had twenty pounds per annum were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued constantly 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. time hatched to cover their Treason this damnable and damned opinion viz. Ed. 3. Calvins Case Cook l. 7. fol. 11 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 Crowne his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suite of Lawe it was to be done by force Thirdly that his Lieges be bound to governe in default of him All which tenets were condemned by two Parliaments the one called exilium Hugenis 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 Vâ—lleine of a Lord in the presence of the King cannot be seized Plowdon Com. 322. 27. ass pl. 49. for the presence of the King is a protection for that time to him This shewes what reverence the Lawe gives to the person of a King Reges 33 Ed. 3. ayde de Roy. 103. Fitz. sacro oleo uncti sunt capaces spiritualis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote 10 H. 7.16 habet Ecclesiasticam spititualem jurisdictionem This shewes the Kings power in Ecclesiasticall Causes The Lands of the King are called in Law Com. Sur. Littl. Sect. 4. patrimonium sacrum The Houses should not have medled with that sacred Patrimony The King hath no Peere in his Land 3 Ed. 3.19 and cannot be judged ergo The two Houses are not above him The Parliament of 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 beene 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 tends to the disinherison of the King and his Crowne 4 pars Cookes instit fol. 14.42 E 3. Parliament Roll num 7 Lex consuetudo Parliamenti to which they are sworne This condemnes the said Propositions likewise To depose the King to imprison him untill he assent to certaine demands A warre to alter the Religion established by Lawe or any other Lawe or to remove Councellors 25 Ed 3. cap. 2 to hold a Castle or Fort against the King are offences against that Lawe declared to be Treason by the resolutions herein after mentioned by that Law men are bound to ayd the King when warre is levied against him in his Realme King in this Statute must be intended in his naturall body and person that only can die for to compasse his death and declare it by overt Act is declared there by Treason To incounter in fight such as come to ayde the King in his warres is Treason Compassing of the Queenes death of the Kings eldest sonne to coyne his money to counterfet 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 referre to the King in his politique capacitie but to his naturall which is inseparable from the politique for a body politique can have neither wise nor childe nor levy warre 21 Ed. 4 14. nor doe 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 Lawe and the Statute meant not fictitious persons but the body naturall conjoyned with the publique which are inseparable The clause in that Act R. 2. 11 anno cap. 13 4 pars instit fol. 42 that no man should sue for grace or pardon for any offence condemned or forfeiture given by that Act was repealed by a subsâ—quent Act in 21. R. 2 holden unreasonable without example and against the Law and custome 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 bee Treason but what is declared by 25. Ed. 3 16 R 2 cap 5. The Regality of the Crowne of England is immediatly subject to God and to none other Plaine words H. 4 shewing where the supreme power is The Commission of Array is in force and no other Commission Rot. Parlm 5. H. 4. numb 24. an Act not printed this Act was repealed by 4 5. P. M. cap. 2. this repealed by the Act of 1. Jacobi and so it is of force at this day for the repealing Statute is repealed 4. pars institn fol. 51. 125. published sit hence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the Commentaries upon Magna Charta Syr Edward Cooke by their party is holden for the Oracle of the Law A booke alowed by Syr Nat Brent called the reason of the war fol 95 who wrote the said fourth part in a calme and quiet time and I may say when there was no neede to defend the authority of the Commission of Array For that objection That that Commission leaves power to the Commissioners to taxe men secundum
facultates and so make all mens estates Arbitrary the answere is That in levying of publique aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoide discretion in the assessâ—ments 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 connot be said to be there when he is absent as now he is 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. 4 pars instit 46 2. H. 5. Chap. 6. to the King onely it belongs to make Leagues with forreigne Princes This shewes where the supreame power is 8. H. 6. H. 6. numb 57. Rott Parl. Cookes 4. pars instit 25. No priviledg of Parliamenr is grantable for Treason Felony or Breach of the peace if not to any one member nnot to two not to ten not to the Major part 19. H. 6.62 The law is the inherritanc 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 hold Parliaments and in the ayds granted by the Commonalty If the major part of a Parliament commit Trason they must not bee Judges of it for no man or body ean be Judge in his own 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 supreme 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 corporat body can commit no treason Calvins Case 7 pars fol. 11.12 nor can treason be committed against a corporate body 21. E. 4 13. and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can 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 therefore the stature 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 Plow com 213. his politique is there also and not at Westminster for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forreigne Prince 19 Ed 4.6 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 he pleaseth by his letters pattents 22 Ed. 4. Fitz. jurisdiction last placite can the two howses do the like 1. Ed. 5. fol. 8. Ed. 5. 4 Ed. 4.25 5 Ed. 4 29. It cannot be said that the King doth wrong declared by all the Judges and Serjâ—ents at law then there The reason is nothing can be done in this Common-wealth by the Kings grant or any other act of his as to the subjects persons goods lands or liberties but must be according to established lawes which the Judges are sworne to observe and deliver between the King and his people impartially to rich and poore high and low and therefore the Justices and the Ministers of Justice are to be qâ—stioned and punished if the Lawes be violated And no reflection to be made on the King All Counsellers and Judges for a yeare and three months nntill 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 howses 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 H. 7 11 H. 7. cap. 1. power and might reared against him within this land that it is against all lawes reason and good conscience if the King should happen to be vanquished that for the said 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 heereafter to be made to the contrary are to be void This law is to be understood of the naturall person of the King for his politique capasity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no statute 12 H. 7.20 H. 8. 24 H. 8. cap. 12. 25 H. 8. cap. 21 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to doe justice to all men this is affirmed of the King and not of the two Houses The commons in Parliament acknowledg no superior to the King under God the house of Commons confesse the king to be above the representative body of the Realme Of good right and equity the whole and sole power of pardoning treasons fellonies c. belong to the King 27 H. 8. cap 24. Note as also to make all Justices of Oyer and Terminer 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 33. H. 8 cap. 21 and declared to the Lords and Commons shall be as effectuall as if hee assented in his owne person a vaine act if the King be virtually in the houses The King is the head of the Parliament Dier 38. H. 8. â—â— 59.60 the Lords the principall members of the body 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 14 H. 8. fol. 3. as the King Lords and Commons are a corporation in Parliament and
Prinne fol. 104. of his booke intituled the Parliaments supreme Power c. Objecting the Statute of the first of Queene Elizabeth and his owne Oath That the King is the only supreame Governour of this Realme Answeres The Parliament is the supreme Power and the King supreame Governour And yet there hee allowes him a Negative Voice And fol. 107. confesseth that Acts of Parliament translated the Crowne from the right heires at Common-lawe to others who had no good Title Then the Parliamentary Title makes not the King so powerfull is Truth that it escapes from a man unawares To make a distinction betweene Supreame Governour and Supream Power is very strange For who can Governe without Power The King assembles the Parliament by his Writt Vide Speede 645. 4 pars Instit 27. 28. Adjournes Prorogues and Dissolves the Parliament by the Lawe 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 Supreame Power Ob. 18 The King by his Oath is bound to deny no man Right much lesse his 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 Voice Sol. The King is so bound as is set downe in the Objection but who shall judge whether the Bill proposed bee just and necessary For all that they doe propose are so pretended and carried in eyther House sometimes by one or two voices or some few as aforesaid and certainly as hath beene shewn the King his Councell of State his Judges Sargeants Attorney Sollicitor and twelve Masters of the Chancery can better Judge of them then two or three or few more Master Prinne fol. 45. In his booke of the Parliaments interest to nominate Privy-Councellors c. 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 therein mentioned fol. 11. Master Prinne saith there But let this opinion be 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 booke of the opening of the Great Seale fol. 17. The Parliament hath no jurisdiction to use the Great-Seale for Pardons Generall or Particular Where is the Supreme power Ob. 19 Master Prinnes opening of the Seale Page 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 Sol. A facto ad jus is no good Argument for that in Edward the firsts time it was no Parliament for King Henry the third was dead which dissolved the Parliament if called in his time and it could bee no Parliament of Edward the firstâ— time for no writ issued to summon a Parliament in his name nor could issues 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 Reigne and no Parliament was held that yeere not 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 sixts time the Protector was vice-Roy according to the course of Lawe and so the making of that Seale was by the Protector in the Kings name and that Protector Humphry 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 plainly for that Parliament was in the first of Henry the sixt and the first holden in his time and power given by Commission to the said Dake then Protector to summon that Parliament Prinne ibid. fol. 19. But the new Counterfeit Seale was made when the King was at Oxford in his owne kingdom and not in the holy-Land Ob. 20 Master Prinue in his Booke of the two Houses power to impose Taxes restrayne Malignants against any Habeas Corpus c. saith that the Parliament is above Magna Charta and folio 15 ibid. The Parliament hath power over Magna Charta to repeale the same when there is Cause Sol. This Argument supposeth that they have the Kings power which hath appeared formerly they have not But suppose they had Magna Charta contaynes many morall Lawes which by the Lawe of the Land a Parliament cannot alter 21. H. 7.2 Dr. Student 2. Dialogue For example it saith cap. 18. Justice shall not be sold dlayed nor denyed to any man but by this Argument the Parliament may make Lawe 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 Newcastle to his Majestie appeare whereby they would have him divest himselfe and settle in them all his kingly power by Sea and Land and of themselves to have power without him to lay upon the people of this Land what Taxes they thinke meete to abolish the Common-prayer booke to abolish Episcopacy and to introduce a Church government not yet agreed but such as they shall agree on His Majesty finding a prevayling party in both Houses to steere this course and being chased away with Tumults from London leaves the Houses for these reasons viz. FIRST Because to alter the Government for Religion is against the Kings Oath Secondly Against their Oathes For every of them hath sworne in this Parliament That his Majesty is the only supreame Governour in all Causes Ecclesiasticall and over all Persons Thirdly This course is against Magna Charta the first Chapter 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 bee made to the contrary it shall be holden for none and so it is for Judgements at La we in the twenty fift of Edward the first chapter the first and the second The great Charter is declared to be the Common-lawe of the Land Fourthly They indeavour to take away by their Propositions the Governement of Bishoppes which is as ancient as Christianity in this Land and the booke of Common-Prayer setled by five Acts of Parliament and compiled by the Reformers and Martyres and practised in the time of foure Princes Fiftly 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 Lawe 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 is beleeved will refuse to agree to the said Propositions as by the Fundamentall Lawe 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 deniall 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 he is rendred a Just Magnanimous and Pious Prince so that by this it appeares cleerely to whom the Miseries of these Times are to bee imputed The remedy for all is an Act of Oblivion and a Generall Pardon GOD save the KING 28o. Aprilis 1647. David Jenkins Now prisoner in the Tower