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
the ruine of King and people AD. 3. The Gent. affirms That the sonding Propositions to the King and desiring his concurrence is carce worth an answer for Sub ects may humbly petition for that which is their strict right and property c. The Propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the Propositions That they have a strict right or property to any one of these Propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right and property to lay upon the people what Taxes they shall judge meet To pardon all Treasons c. that is one of their Propositions Have they a strict right and proporty to pardon themselves and so for all the rest of their Propositions These Propositions have been Voted by both Houses 12 H. 7.20 1 Iac. cap. 1. 1 Car. cap. 7. the Kings assent theâ— being drawn into Bills makes them Acts of Parliment Hath the King no right to assent or dis-assent Was the sending but a Complement All our Law-Books and Statutes speak otherwise This Gent. and others must give an account one time or other for such delusions put upon the people AD. 4. The Gent. saith They affirm not that the Kings power is separated from his person so as the two Spencers affirmed c. His Majesties person is now at Holnby under their Guards have they not severed his power from him when by no power they have left him he can have two of his Chaplaines who have not taken their Covenant to attend him for the exercise of his Conscience For the three Conclusions of the Spencers 15. Ed. 2. Exilium Hugonis 1 E. 3. c. 2. Calvins case 7 Pars Reports 11. doe not the two Houses act every of them They saâ— his Majesty hath broken his Trust touching the Government of his people They have raised Armies to take him they have taken him and imprisoned him they govern themselves they make Lawes impose Taxes make Iudges Sheriffes and take upon them omnia insigna summae pâ—tâ—statis Is not this to remove the King for misdemeanours to reform per aspertè to govern in aide of him the three Conclusions of the â—Pencers Doe they think the good people of England are become stupid and will not â—t length see these things The Gentleman saith They doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Plowd 4. Eliz. 213. the Kings power and his Person are indivisible Courts and Officers when they counterfeit the Great Seale and seale Writs with the same make Iudges themselves Courts and Officers by their own Ordinances against his consent declared under his true Great Seale of England not by word of mouth letters or ministers only their Seale is obeyed their own Writs their own Iudges their own Courts their own Officers and not the Kings The time will come when such strange actions and discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo c. What doe you meane by quarto modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the Books of the Law to this purpose collected by that reverend and learned Iudge Stanford Stanfor Plcas 99. 27 H 8. c. 24. Dier 163. from all Antiquity to his time who dyed in the last year of King Philip and Queen Maries Reign you shall finde this a truth undeniable and this power was never questioned in any Age in any Book by any untill this time that every thing is put to the question You Gentlemen who professe the Law and maintaine the party against the King return at length and bring not so much scandall upon the Law which preserves all by publishing such incredible things We hold only what the Law holds the Kings Prerogative and the Subjects Liberty are determined and bounded and admeasured by the written Law what they are 1 Pars Instâ—t pag. 344. Plowd 3. Eliz. 236 237. we doe not hold the King to have any more power neither doth His Majesty claime any other but what the Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers doe now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an act of Parliament made by the King Lords and Commons that will secure them and let this Army remember their executed fellow Souldiers And the Law was alwayes so taken by all men untill these troubles that have begot Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be in no condition to govern c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or letter syllable or line in any Age in the Books of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz. when the two Houses will suffer him The Law saith thus Vbi lex non distinguit non est distinguendum He sayes The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knowes the contrary Nos juris consulti sumus sacerdotes as Institian the Emperour hath it in the first Book of his Institutions and therefore knowledge and truth should come from our lips Worth and ingenious men will remember and reflect upon that passage of that good and wise man Seneca Non qua itur sed qua eundum follow not the rayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seek it in time AD. 7. The Gent. sayes We sweare that the King is our supreme Governour over all persons and in all causes c. Why hath he lest out the word only for the oath the Members now take is that King Charles is now the only and supreme Governour in all causes over all persons 5 Elâ—z cap. 1. Cawdreys case 5 pars fol. 1. and yet they keep their only Supreme Governour now in prison and act now in Parliament by vertue of their Prisoners Writ and by a concurrent power in this Parliament and by their own strict right and property as the Gent. This Oath is allowed by the Common Lâ—w of the Land affirms in his Answer These things agree well with their Oath that the King is the only Supreme Governour in all causes over
all persons this Oath is taken now in the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publike Affaires This Oath being taken in Parliament that the King is the only and Supreme Governour in all Causes then it followes in Parliament causes over all persons then over the two Houses let them keep this Oath and we shall be sure of peace in the Land and good Lawyers ought to desire peace both for the publike good and â—heir private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes We doe not sweare that the King iâ— above all Law nor above the safety of his people neither doe we so sweare but His Majesty and we will sweare to the contrary and have swom and have made good and will by Gods grace make good our Oath to the world that the King is not above the Law nor above the safety of his people the Law and the safery of his people are his safety his Honour and his Strength AD. 8. The Gent. concludes That Acts of Parliament are not formally binding nor compleat without the Kings assent yet the Houses have a virtuall power without the Kings particular assent to doe things in order to publike Iustice and Safety viz In setting up the Excise in raising and maintaining of Armies in taxing the peo-people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loanes Compositions imprisoning the King abolishing the Common-prayer-Book selling the Churches Lands c. all these are in order to the publike Justice and Safety Mr H.P. you are of my profession I beseech you for the good of your Countrey for the Honour of our Science perswade your selfe and others as much as in you lies to believe and follow the monition and Councell of that memorable reverend and profoundly learned in the Lawes and Customes of the Land the Lord Coke who writes as becomes a great and a learned Judge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finds a Principle in Law 3 Pars Instit p. 36. a Rule in Reason and a Tryall in Experience that Treason doth over producâ— futall and finall destruction to the offender and never attaines to the desired and two incidents inseparable thereunto and therefore lâ—t all men abandon it as the poysonous hait of the Devill and follow the Precept in holy Scripture SERVE GOD HONOVR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS CONCLUSION I Say againe that without an Act of Obliviow a gracious generall Pardon from His Majesty the Arreares of the Soulaiers paid a favorable regard had to tender Consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing be hath By me David Jenkins Prisoner in the Tower The End A DISCOURSE Touching the Inconveniencies of a Long continued Parliament AND THE IVDGEMENT OF THE LAW OF THE LAND In that Behalfe By DAVID JENKINS now Prisoner in the Tower of LONDON Printed in the Yeare 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament 1. Aerpetuall Parliament is repugnant to the Act made this Parliament for a Trienniall Parliament for how can every three years a Parliament begin if this be perpetuall which may be so if the two Houses please 2. An adjournment of the Parliament makes no Session 4 Pars Institut fol. 27. Howbeit before the Adjournment the King gives His Royall assent to some Bills Cooke ibid. 3. There is no Session till a prorogation or dissolution of the Parliament 4. This Parliament as appeares by the Act for not dissolving thereof set downe in the Printed Statutes of this Parliament fol. 138. cannot be prorogued but by Act of Parliament There hath beene as yet no Act of Parliament present and therefore all the Acts of this Parliament are Acts of one Session 5. All the Aâ—â—â— of one Session relate to the first day of the Parliament Plow â— com 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier 1 Mariae 45. and all the Acts of such a Paâ—liament are Acts of one day so the Act for the Trienniall and the Act for this Perpetuall are two Acts of one day by the Law 6. 4 Ed. 3. cap. and 36 Ed. 3. cap. 10. A Parliament is to bee holden once every yeere and more often if need shall bee those Acts are confirmed by the Act for the Trienniall Parliament How doth a perpetuall Parliament agree with a Parliament once every yeere or with the intention of those Lawes How doth a Parliament every three yeers agree with a Parliament for ever which may be if the two Houses please 7. The result is this at one day in Law this Parliament two Acts have passed for howbeit the one was in 16â— Carol. and the other in 17. Carol. yet both in Law are Acts of one day the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parliament The other this Parliament shall sit for ever if they please The one will have a Parliament with an end the other a Parliament without an end When an Act of Parliament is against common right or Reason 8 Pars Doct. Bonhams case fol. 118. 8 Ed. 3.30 33 E. 3. cessavit 32. 27. H. G. Annuity 11. 14 Eliz. Dier 313. or repugnant or impossible to bee performed the Common Law shall controle it and adjudge this Act to bee void they are the words of the Law An Act of Parliament that a man shall bee Judge in his owne cause is a void Act. Begin with Common Right It is against Common Right that indebted men should not pay their debts That if any Member of the House of Comons doe any Subject wrong by diffeising him of his land or dispossessing him of his goods or blasting of his fame or doing violence to his person that such persons during their lives should not bee questioned by a priviledge of Parliament and that extended also to many others besides themselves Common Right doth abhorre these enormities which a perpetuall Paliament doth beget besides the utter destruction of all mens actions reall personall or mixt who have to doe with Parliament men 21 Jac. by the Statute of Limitation which confines suits to certain yeares For Common Reason Parliaments were ordained for remedies to redresse publike grievances It is against Reason they should make publike and insufferable grievances The Law of the Land allowes no protection for any man imployed in the service of the Kingdome but for a yeare to be free from suits and in many suits none at all howbeit hee be in such service 39 H. 6.39 but a Parliament perpetuall may prove a protection not for a yeare but for ever which is against all manner of Reason For
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-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