Spencers did either that the King may be removed for misdemeanours or reformed per aspertè or that the Subject is bound to govern in ayde of him we only say that his power is distinguishable from his person and when he himself makes a distinction betwixt them commanding one thing by his Legall Writs Courts and Officers and commanding another thing extrajudically by word of mouth Letters or Ministers we are to obey his power rather then his person 5. We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo For if the King pardon him which hath murthered my sonne his pardon shall not cut me off from my appeale and 't is more unreasonable that the Kings pardon should make a whole State which hath suffered remedilesse then any private man So if the King should deny indemnity to these which in the furie of Warre have done thingâ— unjustifiable by the Lawes of Peace and thereby keep the wounds of the State from being bound up 't is equitable that an Act of Indemnity should be made forcible another may And if this will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolâ—â—e in all things else and the Parliament hath no power to discharge Delinquencies therefore it hath no power in other matters 6. The Parliament hath declared the King to be in no condition to govern but this must not be interpreted rigidly and without distinction for if the King with his sword drawn in his hand and pursuing the Parliament and their adherents as Rebels be not fit for all Acts of Government yet 't is not hereby insinuated that he is divested of the habit or right of governing If he be unqualified now he is not unqualified for the future if he may not doe things destructive to the Parliament he is not barred from returning to the Parliament or doing justice to the Parliament This is a frivolous cavil and subturfuge 7. We sweare that the King is our supreme Governour over all persons and in all Causes but we doe not sweare that he is above all Law nor above the safety of his people which is the end of the Law and indeed Paramount to the Law it selfe If he be above all Law or liable to no restraint of our Law then we are no freer then the French or the Turks and if he be above the prime and of Law common fafety then we are not so free as the French or Turks For if the totall subversion of the French or the Turk were attempted they might by Gods Law imprinted in the Book of Nature justifie a self-defence but we must remedilesty perish when the King pleases to command our threats Besides how atchieved the King of England such a Supremacie above all Law and the community it selfe for whose behoofe Law was made If Gods donation be pleaded which is not speciall to him or different from what other Kings may pretend toâ— then to what purpose serve our Laws nay to what purpose serve the Laws of other Countries for by this generall donation all Nations are condemned to all servitude as well as we If the Law of this Land be appealed to what Books hath Mr Ienkins read where hath he found on t that Lex Regia whereby the people of England have given away from themselves all right in themselves Some of our Books tell us that we are more free then the French that the King cannot oppresse us in our our persons or estates by imprisonment denying justice or laying Taxes without our consents other Books tell us that the safety of the people is the supreme Law and that the King hath both God and the Law for his Superiour But all this is nothing to learned Mr Ienkins 8. We admit that no Acts of Parliament are compleat or formally binding without the Kings assent yet this is still to be denyed that therefore without this assent particularly exprest the two Houses can doe nothing nor have any virtuall power at all no not to examine Mr Ienkins nor to doe any other thing of like nature though in order to publick justice and safety I have done and wish Mr Ienkins would call in and lick up againe his black infamous execrable reproaches so filthily vomited out against the Parliament To the first I Was examined by a Committee appointed by the House of Commons I say and said that the House of Commons have no power to examine me for that it is no Court every Court hath power to examine upon Oath this power the House of Commons never claimed The Court of Pie-powders Court-Baron Hundred Court 5 H. 4. c. 3. 3 H. 6.46 1 H 6.43 35 H. 6.5 County Court and every other Court of Record or not of Record hath power to examine upon oath and an examination without Oath is a communication only examination in Law is upon Oath There is no Court without a power of tryall the House of Commons have no power to try any offence Sir Anthony Maynes case Cook 5. pars Reports Lit. 2. lib. Sect. 194.6 H. 4.1 nor ever practised it by Bill Inditement Information Plaint or Originall to deduce it to tryal nor to try it by Verdict Demurrer or Examination of Witnesses upon Oath without which there can be no condemnation or judgement and that which can attaine to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit a fine The Writ Whereby they are called gives them power Aâ— faciendum consentiendum to what to such things Que ibidem de communi Consilie ordinari contigerint 4 pars instit fol. 4. 9. viz. in the Parliament This makes nothing at all for a Court for the House of Commons that consilium which that Writ intends is cleared partly by the Writ for chusing Knights c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peeres of the Kingdome for and touching the great concernments of the Common-wealth for the King never sits in the House of Commons and this also is made evident by the Writs to the Prelates Peeres Iudges and to his Councell at Law the words in their Writ are To appear and attend the Parliament consilium impensuri the one doth consulere the other facere consentire The House of Lords where the King sits in person 7. H. 6.28 1 H. 7.20 13. E. 3. ca. 5. 4 pars instit pag. 21. assisted by his Lords Judges Serjeants Atturney Sollicitor Masters of the Cnancery is a Court of Record to many purposes set down in the Books of Law and the Statutes of the Land and that Court is only in the House of Lords where the Kings sits A Court must either be by the Kings Patent Statute Law or by the Common Law which is common and constant usage the House of Commons hath no Patent to be a
Declarations otherwise truth must be said and will be said that there is brought in a new arbitrary and tyrannicall government If the Lords have taken one mans life by an Ordinance they are not bound to take any more and the case differs in case any appeale be made from a tryall by Ordinance to a tryall at common law which was not done by that man whose life was taken away by an Ordinance The Lords ought to remember that his Majesty and his Progenitors have made them a house of Peeres they are trusted to counsell him in peace f Nevels case 8. part Cooks reports and defend him in war his Majesty in Parliament is to consult and treat with the Peers and with his Counsell at Law Judges his Sergeants Atturney and Solicitor and Masters of the Chancery the Lords and that counsell by the respective Writs of Summons to Parliament are to give Counsell g 4 Pars instit fol. 4.9 the House of Commons by their Writ to performe and consent In the House of Lords the Court of Parliament only is for they only examine upon oath h 1 H. 7. fol. 20. with them the King in person sits and by them there erroneous judgements * 14. Ed. 3. c. 5. upon a Petition to his Majesty for obtaining of a Writ of Errour by the advice of the Judges are reversed or affirmed c. the Lords are to remember that their eminency and grandeur is preserved by the Laws if they leave all to will and dishonour their King and make nothing of the Lawes they will make nothing of themselves in the end And therefore it is well worth your observation what was said by Mr Iohn Pym a Member of the House of Commons in his speech against the Earle of Strafford in the beginning of the Parliament which speech is published by the expresse order of the House of Commons the words are these The Law is that which puts a difference betwixt good and evill betwixt just and unjust if you take away the Law all things will fall into a confusion every man will become a Law unto himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envy will become a Law Covetousnesse and Ambition will become Lawes and what diâ—tates what decisions such Lawes will produce may easily be discerned i See part book deel pag. 140.163 c. They that love this Common-wealth as things now stand will use all meanes to procure an Act of Oblivion a generall pardon from his Majesty the Souldiers their Arrears and tender consciences a just and reasonable satisfaction else we all must perish first or last God preserve His Majesty and the Lawes wherein their Lordships and the whole Kingdome are concerned Mai. 17. 1647. David Ienkins Prisoner in the Tower of London FINIS TO THE HONORABLE Societies of Grayes-Jnne and of the rest of the Innes of Court and to all the Professors of the LAW I Have now spent Forty five yeares in the Study of the Lawes of this Land being my profession under and by the conduct of which Lawes this common-wealth hath flourished for some ages past in great splendor and happinesse jam seges est ubi Troja fuit The great full body of this Kingdome hath of late yeares fallen into an extreame sicknesse it is truly said that the cause of the disease being knowne the disease is easily cured There is none of you I hope but doth heartily wish the recovery of our common parent our native country Moribus antiquis stat res Britannica I call God to witnes that this discourse of mine hath no other end then my wishes of the commonâ—gâ—od how farr I have been from Ambition my life past and your owne knowledge of me can abundantly informe you and many of you well know that I ever dâ—tested the ship 〈◊〉 and monopolies that in the beginning of this Parliament for opposing the excesses of one of the Bishopes I lay under three Excommunications and the Examination of seeventy seven Articles in the high Commission Court His sacred Majesty God is my witnes made mee a judge in the parts of Wales against my will and all the meanes I was able to make and a patent for my place was sent mee for the which I have not paid one farthing and the place is of so inconsiderable a benefit that it is worth but 80. l. per Annum when paid and it cost me every yeare I served twice as much out of mine owne estate in the way of an ordinary and frugall expence That which gave me comfort was that I knew well that his Majestie was a just and a prudent Prince In the time of the Attournyships of Master Noy and the Lord Banks they Were pleased to make often use of me and many referrences concerning suits at Court upon that occasion came to my knowledge and as I shall answer to God upon my last account this is truth that all or most of the referrences which I have seen in that Kind and I have seen many were to this effect That his Majesty would be informed by his Counsell if the suits preferred were agreeable to the Lawes and not inconvenient to his people before he would pass them What could a just and pious Prince do more Gentlemen you shall find the Cause and the Curse of the present great distemper in this discourse and God Prosper it in your hands thoughts and words as the Case deserves Hold to the Lawes this great body recovers for sake them it will certainly perish I have resolved to tender my selfe a Sacrifice for them as cheerefully and I hope by Gods assistance as constantly as old Eleazer did for the holy Lawes of his Nation Your well-wisher DAVID JENKINS Now Prisoner in the Tower LEX TERRAE THE Law of this Land hath three grounds First Custom Secondly Iudiciall Records Thirdly Acts of Parliament The two latter are but declarations of the Common-Law and Custome of the Realme touching Royall Government And this Law of Royall-Government is a Law-Fundamentall The Government of this Kingdome by a Royall Soveraign hath beene as ancient as history is or the memoriall of any time The kings prerogative is a principall part of the common Law Com Littâ— 344 what power this Soveraignty alwayes had and used in warre and peace in this land is the scope of this discourse That Vsage so practised makes therein a Fundamentall Law and the Common Law of the Land is common Vsage Plâ—wdens Commentaries 195. For the first of our Kings â—ithence the Norman conquest the first William second William Henry the first Stephen Henry the second and Richard the first the Customs of the Realme touching Royall Government were never questioned The said Kings injoyed them in a full measunt In King Iohns time the Nobles and Commons of the Realme conceiving that the arcient customes and Rights were violated and thereupon pressing 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
And the Law is above the King Sol. By the same reason you may say that the Courts of Chancery or any of the Courts of Law at Westminster are above the King for they make of no effect the Kings Charters which are passed against the Law and the King is Subject to Law and sworne to maintaine it Again it is no Parliament without the King and the King is the head thereof he is principium Caput finis of a Parliament as Medas tenends Parliament hath it and two houses only want principium Caput fixis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say that the King is above himselfe The Parliament can enlarge the Kings prerogative 3 Ob. therefore it is above him If the King assent otherwise not Sol. and then it is an Act of Parliament and otherwise no Act. Bracton saith God the Law and the Kings Court 4 Ob viz. his Earles and Barons are above the King viz. in Parliament as Master Prynne expounds it Where is then the House of Commons Indeed take God Sol. the Law and Earles and Barons together it is true but to affirme that the Earles and Barons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferior member is above the head is hard to conceive besides that position destroyes all M. Pryâ—â—es discourse who attributes so much to the House of Commons The King is but one of the three estates of Parliament 5 Ob. and two are greater then one therefore above The Legs Armes Sol. and Trunke of the Body are greater then the Head and yet not above nor with life without it the argument holds for quantitie but not for qualitie and in truth the King is none of the three estates but above them all the three estates are the Lords Spirituall the Lords Temporall and the Commons Coke their Oracle in his Chapter of Parliaments fol. 1. In Corporations 6 Ob. the greater number of voyces make all the Acts of the Corporation valid therefore so in Parliament By this reason the Kings assent is needlesse and to no end Sol. and all the Acts of Parliament formerly mentioned and Law-Bookes have quite mistaken the matter which with unanimous voyce requires the Kings assent as necessarie besides the Corporations are so constituted by the Kings Charters that the greater number of Votes shall make their Acts valid The King as King 7 Ob. is present in his Parliament as well as in all other his Courts of Justice how be it he is not ther. In his other Courts of Justice he hath no voye Sol. he is none of the Judges in the Parliament he hath if his presence be not necessarie his voyce is not nor his assent â— Ob. Soverain power of Parliaments â—6 47. The originall prime legislative power of making Lawes to bind the subjects and their posteritie rests not in the King but in the Kingdome and Parliament which represents it Master Prynne in the same leafe affirmes and truly that the Kings assent is generally requisite to passe Lawes and ratifie them Sol. the King is the head of the Kingdome and Parliament how then can a Body act without a Head A major part of a Corporation binds 9 Ob. therefore the major part in Parliament and so of by-Lawes The Corporation is so bound either by the Kings Charters Sol. or by prescription which sometimes had the Kings concession but prescription and Law and practise alwayes left the King a negative voyce The King cannot alter the Bills presented to him by both Houses 10 Ob. go. True Sol. but the King may refuse them Acts of Parliament and Lawes ministred in the Reignes of Usurpers 11 Ob. bind rightfull Kings go. What is this to prove the two Houses power only Sol. which is the question A King de facto must be obeyed by them who submitted to him and they are his Subjects by their submission and not Subjects de facto to the true King and such being Traytors and Rebels to the Regent King having renounced the true King when the lawfull King is restored 9. Id. 4.12 may be punished by him for their Treason against the Usurper But here is a King still in both cases and the proceedings at Law holds the Judges having their Patents from the being Kings in the reignes of Kings de facto or de â—urâ— for all Kings are bound and sworne to observe the Lawes A King dies without Heire 12 Ob. is an infant non compes mentis c. the two Houses may establish Lawes go. There is no Inter-regnum in England Sol. as appeares by all ouâ— Bookes of Law and therefore the dying without Heiâ—e is a vaine supposition and by their principle 〈◊〉 is considerable in his politique capacitie which cannot die at also The Protector assisted by the Councell of the King at Law his twelve Judges the Countell of State his Attorney Solicitor and two Sergeants at Law his twelve Masters of the Chancerie hath in the Kings behalfe and ever had a negative Voyce but what is thi no the present question Wee have a King of fall age of great wisdome and judgement the power of the two Houses in such a case to be over the King cannot be showne The King cannot dis-assent to publique and necessarie Bills for the common good go. 13 〈◊〉 Nor ever did good King but who shall be judge Sol. whether they be publique and necessarie The major part in either of the Houses for passing of Bills so pretended may be but one or two voyces or very few and perhaps of no judicious men is it not then fitter or more agreeable to reason that his Majestie and Councell of State his twelve Judges his Sergeants Attorney and Solicitor twelve Masters of the Chancerie should judge of the conveniencie and benefit of such Bills for the publique good rather then a minor of which sort there may be in the Houses or a weake man or a few who oftentimes carry it by making the major part which involves the consent of all let reason determine The Kings of England have beene elective 14 Ob. and the King by his Coronation-Oath is bound to maintaine justas leges consiâ—â—tudines quas vulgas elegerit go. â—â—perie hath beene in the kingdome Soâ— and therefore to continue it still will not be taken for a good argument when things are setled for many ages to look back to times of confusion is to destroy all repose The Act of Parliament of the first of K. James Chapter the first and all our extant Lawâ—s say that the Kings Office is an heritage inherent in the bloud of our Kings and their birth-right And Usurpers that come in by the consent of the people are Kings de
the ruine of King and people AD. 3. The Gent. affirms That the sonding Propositions to the King and desiring his concurrence is carce worth an answer for Sub ects may humbly petition for that which is their strict right and property c. The Propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the Propositions That they have a strict right or property to any one of these Propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right and property to lay upon the people what Taxes they shall judge meet To pardon all Treasons c. that is one of their Propositions Have they a strict right and proporty to pardon themselves and so for all the rest of their Propositions These Propositions have been Voted by both Houses 12 H. 7.20 1 Iac. cap. 1. 1 Car. cap. 7. the Kings assent theâ— being drawn into Bills makes them Acts of Parliment Hath the King no right to assent or dis-assent Was the sending but a Complement All our Law-Books and Statutes speak otherwise This Gent. and others must give an account one time or other for such delusions put upon the people AD. 4. The Gent. saith They affirm not that the Kings power is separated from his person so as the two Spencers affirmed c. His Majesties person is now at Holnby under their Guards have they not severed his power from him when by no power they have left him he can have two of his Chaplaines who have not taken their Covenant to attend him for the exercise of his Conscience For the three Conclusions of the Spencers 15. Ed. 2. Exilium Hugonis 1 E. 3. c. 2. Calvins case 7 Pars Reports 11. doe not the two Houses act every of them They saâ— his Majesty hath broken his Trust touching the Government of his people They have raised Armies to take him they have taken him and imprisoned him they govern themselves they make Lawes impose Taxes make Iudges Sheriffes and take upon them omnia insigna summae pâ—tâ—statis Is not this to remove the King for misdemeanours to reform per aspertè to govern in aide of him the three Conclusions of the â—Pencers Doe they think the good people of England are become stupid and will not â—t length see these things The Gentleman saith They doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Plowd 4. Eliz. 213. the Kings power and his Person are indivisible Courts and Officers when they counterfeit the Great Seale and seale Writs with the same make Iudges themselves Courts and Officers by their own Ordinances against his consent declared under his true Great Seale of England not by word of mouth letters or ministers only their Seale is obeyed their own Writs their own Iudges their own Courts their own Officers and not the Kings The time will come when such strange actions and discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo c. What doe you meane by quarto modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the Books of the Law to this purpose collected by that reverend and learned Iudge Stanford Stanfor Plcas 99. 27 H 8. c. 24. Dier 163. from all Antiquity to his time who dyed in the last year of King Philip and Queen Maries Reign you shall finde this a truth undeniable and this power was never questioned in any Age in any Book by any untill this time that every thing is put to the question You Gentlemen who professe the Law and maintaine the party against the King return at length and bring not so much scandall upon the Law which preserves all by publishing such incredible things We hold only what the Law holds the Kings Prerogative and the Subjects Liberty are determined and bounded and admeasured by the written Law what they are 1 Pars Instâ—t pag. 344. Plowd 3. Eliz. 236 237. we doe not hold the King to have any more power neither doth His Majesty claime any other but what the Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers doe now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an act of Parliament made by the King Lords and Commons that will secure them and let this Army remember their executed fellow Souldiers And the Law was alwayes so taken by all men untill these troubles that have begot Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be in no condition to govern c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or letter syllable or line in any Age in the Books of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz. when the two Houses will suffer him The Law saith thus Vbi lex non distinguit non est distinguendum He sayes The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knowes the contrary Nos juris consulti sumus sacerdotes as Institian the Emperour hath it in the first Book of his Institutions and therefore knowledge and truth should come from our lips Worth and ingenious men will remember and reflect upon that passage of that good and wise man Seneca Non qua itur sed qua eundum follow not the rayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seek it in time AD. 7. The Gent. sayes We sweare that the King is our supreme Governour over all persons and in all causes c. Why hath he lest out the word only for the oath the Members now take is that King Charles is now the only and supreme Governour in all causes over all persons 5 Elâ—z cap. 1. Cawdreys case 5 pars fol. 1. and yet they keep their only Supreme Governour now in prison and act now in Parliament by vertue of their Prisoners Writ and by a concurrent power in this Parliament and by their own strict right and property as the Gent. This Oath is allowed by the Common Lâ—w of the Land affirms in his Answer These things agree well with their Oath that the King is the only Supreme Governour in all causes over
Impossibility The death of His Majesty whose life God prolong dissolves it necessarily For the Writ of summons is Carolus Rex in hoc individuo and Carolus Rex is in this particular Habiturus colloquium tractatum cum Prelatis proceribus c. 2 H. 5. Cooke Title Parliam 3. pars King Charles being to have Conference and Treaty with his Prelates and Peeres Carolus Rex cannot have Colloquium tractatum Conference and Treaty when he is deceased and therefore it is impossible for any Parliament to continue as long as they please as for a Parliament to make a dead man alive For Repugnancie That which is but for a time cannot be affirmed to have continuance for ever it is repugnant The end of the Act of 17. Caroli Regis which is to continue at pleasure is in the said Act expressed to be to raise credit for money for these three purposes First for reliefe of his Majesties Army and people in the North. Secondly for preventing the iminent danger of the Kingdome Thirdly for supply of other His Majesties present and urgent occasions These ends are ended the reliefe of that Army the iminent danger supposed was sixe yeares agoe the supply of His Majestie hath beene a supply against him take away the end the meanes thereto are to no purpose take away the cause the effect ceaseth and therefore the three ends of this Act being determined it agreeth with Law and Reason the Act should end Sir Anthony Mayns case 5. pars 1. H. 4.6 Littl. cap. Villen the Law rejects things unprofitable and uselesse A perpetuall Parliament besides that it incites men to selfe-ends destructive of the publique of which the whole Kingdome hath had sufficient experience wil be a constant charge to the Kingdome for that every County and Borough who send Members to the Parliament are by the Law to pay wages to their Parliament men which to many Counties will amount above some Subsidies Yearely There are many poore Borough-Townes in each County of this Kingdome who being to maintaine two Burgesses in Parliament will be quickly begger'd if the Parliament have no end for all which reasons it is cleare that such long continuance of Parliaments will instead of a remedy which is and ought to be the proper and true end of Parliaments become an insufferable grievance and oppression to all the People of the Land The Writ of Summons this Parliament is the basis and foundation of the Parliament If the Foundation be destroyed the Parliament falls The Assembly of Parliament if for three purposes Rex est habiturus colloquium et tractatum cum praelatis magnatibus et proceribus super arduis negotijs concernentibus 1. Nos 2 Defensionem regni nostri 3. Defensionem Ecclesiae Anglicanae This Parliament hath overthrowne this Foundation in all 3 parts 1. Nos the King they have chased him away and imprisoned him they have voted no prelats and a number of other Lords about 40. in the City must not come to the House and about 40 more are out of Towne the colloquium et tractatus are made void therby For the King cannot consult and treat there with men removed from thence 2. Defensionem regni nostri that is gone they have made it their Kingdome not His for they have usurped all His Soveraigntie 3. Defensionem Ecclesiae Anglicanae that is gone that Ecclesia Anglicana trust be understood necessarily that Church that at the test of the Writ was Ecclesia Anglicana they have destroyed that too So now these men would be called a Parliament having abated quashed and made nothing of the Writ whereby they were Summoned and Assembled If the Writ be made void all the processe is void also that House must needs fall where the Foundation is overthrowne Sublato fundamento opus cadit the Foundation being taken away the worke falls is both a maxime in Law and Reason For some yeares past there is no crime from Treason to Trespasse but they are guilty of all Treason Felonies Robberies trespasses are contra pacem coronam et dignitatem Regis against the Peace Crowne and Dignitie of the King as appeares by all Indictments in all Ages Pax Regis the Kings Peace Corona Regis the Kings Crowne Dignitas Regis the Kings Dignitie are all trod under foot and made nothing Pax Regis the Peace of the King is become a Warre against the King His Dignitie put into prison and the Crowne put upon their owne heads All the Judges of England have resolved Nevills ease 7. part 34. 2. Jacobi that Noblemen committing Treason have forfeited their Office and Dignitie their Officeiâ—s to councell the King in time of Peace to defend him in time of Warre and therefore those men against the duty and end of their Dignitie taking not onely Councell but Armes also to destroy Him and being thereof attaint by due course of Law by a racite condition annexed to the estate of their Dignitie have forfeited the same they are the words of the Law and therefore they have made themselves incapable to be Members of the upper House The Oppressions of the People Briberies Extortions Monopolies ought to be inquired after by the House of Commons and complained of to the King and Lords what have they done The House of Commons cannot by the Law commit any man to prison who is not of the said House for Treason Murder or Felony or any thing but for the disturbance of the publique Peace by the priviledge of the whole body They have no power by the Writ which the King issueth to elect and returne Members of that House so to doe For the Writ for them is onely ad faciendum et consentiendum to those things whereof His Majestie shall consult and treat with his Prelates and Nobles et de communi consilio Regni shall be there ordained as appeares by the Writ Here is no separate power given over the Kings people to them but onely ad faciendum et consentiendum 4 Pars. institut 23.24.25 and in all times this hath beene expounded and restrained to that which concerned their owne Members in Relation to the publique Service as he is a Member of the corporate body of the Parliament wherof the King is the Head But that the House of Commons have committed any man for Treason Murder or Felony or for any offence that had no relation to a Member of the House of Commons as it is against Law and Reason so no instance can be given till this Parliament 19 H. 6.43 22. E. 4.22 5 H. 4. cap. 8. 3 H. 6.46 All Questions and trials where witnesse are examined the examination is upon oath by the Law by all our Bookes Statutes every dayes practice Examination without an Oath is but a loose discourse therefore the House of Commons not claiming power to give an Oath have no power to examine any man No man shall bee imprisoned by the King or His Councell unlesse it be
by Inditement 25 E. 3. c. 1. Petition of Right 3 Car. presentment of his good and lawfull Neighbours where such deeds bee done in due manner or by processe made by Writ originall at the Common Law This Statute rehearses Magna Charta pag. 29. and expounds Lex terrae the Law of the Land there mentioned This Law binds all men and the House of Commons for they say they are of the Kings Councell in all points but onely against the disturbers of the service of the Parliament and therefore the imprisonment of severall persons who are not their Members and for no disturbance to their Members is utterly against the Law of the Land and the franchise of the Free-men of this Realme Cui non licet quod minus non â—eet quod majus he who may not doe what is lesse may not doe what is greater they cannot commit a man for murder or Felony much lesse for Treason No Court can fine and imprison but a Court of Record the House of Commons is no Court of Record 8 Pars Cook 120. 27 H. 6.8 the House of the Lords where the King is in his Person his Nobles and his Judges and Councell at Law the Masters of the Chancery assisting is a Court of Record and that is the Court of Parliament where the colloquium tractatus is The House of Commons may present grievances grant or not grant aydes consent or not consent to new lawes but for fining and imprisoning any but as aforesaid is but of a late date and no ancient usage They have no Journall Booke but sithence Edw. 6. time 6 Hen. 8. cap. 15. doth not prove the House of Commons to be a Court of Record it mentions onely to be entered on Record in the Booke of the Clerke of the Parliament if any Member depart into the Country There is no Journall there but sithence Ed. 6. time or it is a remembrance or memoriall as 12 H. 4.23 The whole Parliament is one corporate body 14 H. 8.3 36 H. 8. Dier 60. 4 Pars Instit cap. 1. consisting of the Head and three Estates The Court is only there where the Consilium tractatus is where the consult and treaty is with the King which is in the House of Lords onely The House of Commons claime not to examine upon oath any man no Court can bee without a power to give an oath Courts Baron Court of Pipowders County-Court may and doe give oath No Court can bee without a power to try no tryall can be without Oath and therefore the House of Commons not claiming power to give an Oath can bring no matter to tryall and consequently can be no Court. The behaviour of the Commons at a Conference with the Lords the Commons are alwayes uncovered and standing when the Lords sit with their hats on which shewes they are not Colleagues in judgement for fellow Judges owe no such Reverence to their Companions When was ever Fine imposed by the House of Commons estreated in the Exchequer 11 H. 4. câ— â— The ejecting of a Member who hath sitten is against the Law for they cannot remove a man out of the House unduly returned much lesse a man returned duely By these Lawes it appeares 〈◊〉 H. 4. cap. 1. 1 H. 5. cap. 1. 8 H. 6. cap. 7. 23 H. 6. cap. 15 that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is 200. pound one to the King another to the party that is duly elected imprisonment for a yeare without Baile or Mainprise and that person who is unduly returned shall serve at his owne charge and have no benefit at the end of the Parliament by the Writ De solutione foendorum Militum Civium Burgensium Parliament and the tryall of the falsity of the returne is to be before the Justices of Assises in the proper County or by action of debt in any Court of Record This condemnes the Committee for undue elections which hath been practised but of late times 3 Ed. â— 20. 5 Ed. â— 41. for besides these Lawes it is against a maxime of the Common law an averment is not receivable against the returne of the Sheriffe for his returne is upon Oath which Oath is to be credited in that suit wherein the returne is made The said Statutes condemne and make those members no members which were not resiant in the County or Boroughs for which they were elected at the time 〈◊〉 the rest of the Writ of the Summons of the Parliament and any abusive practice of late times to the contrary is against the Law and ought not to be allowed Assault upon Parliament Men. If a Parliament man or his Meniall Servant be assaulted beaten or wounded in the Parliament time 5 H. 4. cap 6. 11 H. 6 cap 11. proclamation shall bee made where the deed is done that the offender shall render himselfe to the Kings Bench within a quarter of a yeare after proclamation made and the offence there to be tryed for default of appearance the offender is declared attainted of the misdeed and it is accorded that thereafter it bee done likewise in the like Case Serving of processe upon a Lord of the Parliament punished in the Lords House Bogo de Clare 18 E. 3. 4 paâ—s Instit fol. 24. Iohn Thornsbyes case Clerk of the Parliam ibid. 10. E. â— Serving of processe upon Thornsby inquired of in the Chancery and there the offenders were convicted The premisses prove that breaches of priviledge of Parliament may bee punished elsewhere then in Parliament Upon all this Discourse it is easie to discerne what fruits may be expected from this Parliament continuing as long as the two Houses please and that there is no safety for this Common-wealth but by the Observations of their ancient Franchises Customes and Lawes CONCLUSION I Say againe that without an Act of Oblivion a gracious generall Pardon from His Majesty the Arreares of the Souldiers paid a favorable regard had to tender Consciences there will bee neither Truth nor Peace in this Land nor any man secure of any thing he hath The End AN APOLOGY FOR THE ARMY Touching the eight Quaeres upon the late Declarations and Letters from the Army touching sedition falsly charged upon them Wherein those Quaeres are resolved and thereby the present proceedings of the Army are proved to be Legall Just Honorable By DAVID JENKINS Prisoner in the Tower of LONDON Quis tulerit Gracchos de seditione querentes Printed in the Yeare 1647. AN APOLOGIE FOR THE ARMY THese Treasonable and insolent Quâ—rieâ— make the Army the Houses Subjects Bracton fol. 118 Stanford f. 2 and not the Kings None by the Lawes of this â—and can in this Kingdome have any Army but His Majesty It appeares the Army doth now evidently perceive that they were mis-led by the specious pretencees of Sulus Papuli the maintenance of the Kings Honour and of the maintenance of
the Lawes of the Land and liberties of the Subject to take up Armes against their naturall Liege Lord and Soveraigne the King The People is the Body Mag. Char. c. 1. ultim All the act concerning the King Church and Churchmen 25. E. 1. c. 1. the King is their Head was the Body sufe when the Head was distressed and imprisoned For Lawes and Liberties have not the prevailing paâ—tie in the two Houses destroyed above 100 Acte of Parliament and in 〈◊〉 Magun Charta Chorta de Forestâ— which are the common Lawes of the Land Doth Excize Fifth and Twentieth Parts Meale-money and many more burdens which this Land never heard of before maintaine the Liberties of the people You and that partie of the two Houses made the Army by severall Declarâ—tions before ingagement believe that you would preserve the Kings Honour and Greatnesse the Lawes and Liberties of the people The Army and the whole Kingdome â—ow 〈…〉 see your actions and have no reason longer to belâ—eve your Oaths Vowes and Declarations and fince that partie in the two Houses refuse to performe any thing according to their said Oathes Vowes and Declarations The Army and the Kingdome may and ought both by your own principles and the Lawes of the Land pursue the end for which they were raysed And so your first Quaere is resolved whereby it is manifest that specious pretences to carry on ambitious and pernicious designes fix not upon the Army but upon you and the prevailing partie in both Houses The Solution of the second Quaere The Army 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. par Instit f. 12.39 Eli. 1. Iacob ibi 2. 3. E. 6. cap. 2. 11. H. 7. c. 1. to their eternall honour have freed the King from imprisonment aâ— Holmby It was High Treason to imprison His Maâ—estie 〈◊〉 Tofâ—â—â— His Majestie from that imprisonment was to deliveâ—â— Him out of Traiteroâ—s mands which was the Armies bounden dutie by the Law of God and the Land That partie refused to suffer His Majestie to have two of His Chaplaines for the exercise of His Conscience who had not taken the Covenant free aceesse waâ— not permitted doth the Army use His Majestie so all men see that accesse to Him is free 〈…〉 and such Chaplaines as His Majestie desired are now attending on His Grace Who are the guiltie persons the Army who in this action of delivering the King act according to Law or the said partie who acted Treasonably against the Law Who doth observe the Protestation better they who imprison their King or they who free Him from prison That this Army was raysed by the Parliament is 〈◊〉 false The Army was raysed by the two Houses upon the specious pretences of the Kings Honour common saâ—etie and the preservation of Lawes and Liberties which how made good hath beene shewed before and all the people of the Kingdome doe find by wofull experience The two Houses are no more a Parliament then a Body without a Head a man 14. Hâ—â— â— 36. H. 8. Dier 60. 4. par Instit p. 1.3.12.14 16. R. 2. c. 1. 5. Eliz. c. 2. 17. Carol. The act for the continuance of this Parliament The two Houses can make no Court without the King they are no Body Corporate without the King they all Head and Members make one Corporate Body and this is so cleare a truth that in this Parliament by the Act of 17 Caroli it is declared That the Parliament shall not be dissolved or prorogued but by act of Parliament but the two Houses may respectively adjourne themselves two Houses a Parliament are severall things Cunct a fidem vero faciunt all circumstances agree to prove this truth Before the Norman Conquest and sithence to this day the King is holden Principall Caput finis that is the beginning Head and chief end of the Parliament as appeareth by the Treatise of the manner of holding of Parliaments made before the Norman Conquest 4. par Instit pag. 12. by the Writ of Sumons of Parliament whereby the Treaty and Parler in Parliament is to be had with the King onely by the Common Lauâ— by the Statute-Law by the Oath of Supremacy 4. par Instit pag. 4.9 5. Eli. c. 1.2 taken at this and every Parliament it doth manifestly appeare that without the King there can be no colour of a Parliament How many Votes have they revoked in one Session yea and Bills Was there ever the like done Nay is not the constant course of Parliaments violated and made nothing thereby They are guarded by Armed-men 〈…〉 divide the publique money among themselves and that partie indeavours to bring in a Forreigne to invade this Land againe If they be no Parliament as clearely they are none without His Majestie they have no privileges but doe exercise an Arbitrary Tyrannicall and Treasonable power over the people By the Law of the Land 7. E. 4.20 8. E. 4.3 9. E. 4.27 4. H. 7.18 27. H. 8.23 when Treason or Felony is committed it is lawfull for every Subject who suspects the Offender to apprehend him and to secure him so that Justice may be done upon him according to the Law You say The disobedience of the Army is a sad publique president like to conjure up a spirit of universall disobedience I pray object not that conjuring up to the Army whereof you the prevailing partie in the Houses are guiltie who conjured up the spirit of universall disobedience against His Majestie your and our onely Supreme Governour But you and that partie in the two Houses and even then when the house of Commons were taking and did take the said Oath of Supremacy For the Covenant you mention it is an Oath against the Lawes of the Land against the Petition of Right devised in Scotland wherein the first Article is to maintaine the Reformed Religion in the Church of Scotland 2. pars Coll. of Ord. pag. 803. Petition of right 3. Car. 2. pars instit 719. And certainly there is no Subject of the English Nation doth know what the Scottish Religion is I believe the Army tooke not the Covenant No man by the Law can give an Oath in a new case without an Act of Parliament and therefore the imposers thereof are very blamable and guiltie of the highest Crime The Writer of these Quaeries seemes to professe the Lâ—wes let him declare what Act of Parliament doth justifie the tendring giving or taking of the said Oath he knoweth there is none he knoweth that all the parts of it are destructive of the Lawes and Government to maintaine which the Law of nature the Law of the Land had obliged them Mag. Chart. cap. 1. Ultimo Articuli cleri and many other statutes 16. Ed. 4.10 The Oath of the Covenant makes the Houses Supreme Governours in causes Ecclesiasticall the Oath of Supremacy makes the King so and yet both taken by the same persons at the same time
have no account of the many Millions received of the Publike Money Will the Members of the Houses accuse themselves Shall private and publike Debts bee never paid Shall the Kingdome lye ever under burthens of Oppression and Tyranny There is no visible way to remedy all these enormities but the power of the Army To the V. which is solved thus The Kingdome hath better assurance of Reformation from the Army then from the Houses for that in their Military way they have bin just faithfull honorable they have kept their words That party of the Houses have bin constant to nothing but in dividing the publike Treasure among themselves and in laying burdens upon the people and in breaking all the Oathes Vowes and Promises they ever made 2 3 Ed. 6. cap. 2. 11 H 7. cap. 1. Calvins case 7. pars Cook fol. 11. As the Army hath power so now adhering to the King all the Lawes of God Nature and Man are for them their Armes are just and blessed and the King is bound in Justice to reward his Deliverers with Honour Profit and meet Liberty of Conscience To the VI. Quare All the sixth Quaere containes Calumnies cast upon the Armie the new elections are against all the Lawes mentioned in the Margin 11 H. 4. c. 1. 1 H. 5. c. 1. 8 H. 6. c. 7. 23 H. 6. c. 15. and are against the ejection of the old Members and by this it may be judged what a House of Commons we have By the said Lawes it appeares that if any undue returne be made the person returned is to continue a Member the Sherifes punishment is two hundred pounds one to the King and the other to the partie that is duly elected imprisonment for a yeare without Bayle or Mainprise and that person who is unduly returned shall serve at his owne charge and have no benefit at the end of the Parliament by the Writ de solutione feodorum Militum Civium Burgensium Parliament And the tryall of the falsitie of the returne is to be before the Justices of Assises in the proper Countie or by Action of Debt in any Court of Record This condemnes the Committee for undue elections which hath been practised but of late times for besides these Lawes it is a Maxime of the Common Law 3 Ed. 4.20 5 Ed. 4.42 an Averment is not receivable against the returne of the Sherife for his returne is upon Oath which Oath is to be credited in that suit wherein the returne is made The said Statutes condemne elections of such men which were not resiant and dwelt in the Countie or Boroughs for which they were returned and any abusive practise of late times to the contrary is against the Law and ought not to be allowed To the VII Quaere The Quaerist saith That the Votes of the Independents in the Houses were arbitrarie exorbitant and irregular and that they disposed and fingred more of the common Treasure then others That whole Quaere I believe is false and slanderous 37 E. 5. c. 17. and the Author ought to make it good or else to undergoe the Law of Taltonâ— which is to suffer such punishment failing of his proofe as the accured should in case of proofe made To the VIII Quaere This Quaere is all minatorie and threatning and the contrarie oâ— every part is true by the deliverance of the King and Kingdome from the bondage of that partie in the two Houses by the Army their renowne will be everlasting they secure themselves they content and please the Kingdome Citie and Countrey as appeares by their confluence to see his Majestie and the Armie and their acclamations for his Majesties safetie and restitution all which doth evidence to every one of the Armie how acceptable the intentions of the Armie are to the people of this Land who have been so long inthralled Sir Thomas Fairfax let your Worthinesse remember your extraction and your Ladies by the grace and favour of the Prince to be in the ranke of Nobilitie remember what honour and glory the present Age and all posteritie will justly give to the restorer of the King to his Throne of the Lawes to their strength and of the afflicted people of this Land to peace let the Colonels and Commanders under you and likewise your Souldierie rest assured that they shall not only share in the renowne of this action but also shall have such remuneration as their hautie courage and so high a vertue doth deserve This his Majestie can and will doe the Houses neither will nor can and God blesse you all and prosper you I conclude all as I have alwayes done Without an Act of Oblivion a generall Pardon the Arreares of the Souldierie payd and a regard to Libertie of Conscience this Kingdome will certainly be ruined FINIS