6. time was there ever Fine by the House of Commons estreated into the Exchequer For murder or Felony they can imprison no man much lesse for Treason that House which cannot do the lesse cannot doe the greater It is ordained 25. â— 3. c. 4. 3. Car. Petition of Right that no man shall be imprisoned or put out of his Franchise by the King or his Councell but upon indictment or presentment of his good and lawfull Neighbours where the deed is done or by originall Writ at the Common Law and so is Lex terrae the Law of the Land mentioned in Magna Charta cap. 29. expounded and the said Magna Charta and Charta de Forresta are declared by the Statute of 25. E. 1. c. 1. to bee the Common Law of the Land All Judges and Commissioners are to proceed Secundum legem consuetudinem Regni Angliae as appeares by all proceedings in all Courts and by all Commissions and therefore the house of Commons by themselves proceeding not by Indictment Presentment or Originall Writ have no power to imprison men or put them out of Franchise This no way trenches upon the Parliament 4 pars instit p. 1. 3 pars instit p. 23. for it is in Law no Parliament without King and both Houses I have onely in my Paper delivered to Mr. Corbet 12. H. 7.20 Princes case 8 Pars Cook 1 pars instit p. 159. 14 H. 8.3 Dier 3â— H. 8.60 applyed my selfe to that Committee that had not power to examine mee but I never thought said or wrote that the Parliament had no power to examine me The Law and custome of this Land is that a Parliament hath power over my life liberty lands and goods and over every other Subject but the House of Commons of it selfe hath no such power For the Lord Cookes relation 1 pars inst 19. b. that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeths time and since Few facts of late time never questioned make no power nor Court à facto ad jus is no good argument for the words of the Statute of 6. Hâ—n 8. c. 16. that a licence to depart from the House of Commons for any Member thereof 4 P. Inst c. Parl. is to be entred of Record into the Booke of the Cleark of the Parliament appointed Hobbarts reports fol. 152. or to be appointed for that House doth not conclude that the House of Commons is a Court of Records For first that Law of 6. H. 8. c. 26. handles no such question as that whether the House of commons be a court it is a maxime in all Lawes Hobbarts reports fol. 154. Leâ— aliâ—d tractâ—us nil probat the word Record there mentioned is onely a memoriall of what was done and entred in a book A plaint removed out of the County-Court to the Court of the common-Pleas hath these words in the Writ of remove Recordari facias loquelam Fitz. Nat. Br. 70. Fitz. Nat. Br. 13. 12 H. 4.33 34 H. 6.49 c. and yet the county court is no court of Record and so for ancient Demesne in a Writ of false judgement the words are Recordari facias loquelam c. and yet the court of ancient Demesne is no court of Record and so of a court Baron the Law and custome of England must bee preserved or England will bee destroyed and have neither Law nor custome Let any man shew mee that the court of Lords or the House of commons in any age hath made any man a Delinquent Rege dissentiente the KING contradicting it under his Great Seale Miâ—hell and others of late were condemned by the prosecution of the House of commons in King Iames his time did King Iames ever contradict it And so in ancient times where the House of Peeres condemned the Lord Latimer in 50 E. 3. 4 Pars Inst Tit. Parlia p. 23. The Kings pardon freed him which shewes clearly that the Kings expresse or implied assent must of necessitie be had to make a Delinquent The execution of the sentence is in the Kings name The Gentl. saith That the Parliament sits or ought to sit by something greater than the Kings Writ c. No Parliament did ever sit without the Kings Writ 4. Pars inst p. 4. 6. nor could ever Parliament begin without the Kings presence in person or by a Guardian of England by patent under the Kings Great Seal the King being in remotis or by Commission under the Great Seal to certain Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majestie hath been pressed and hath passed two Acts of parliament one for a Triennial parliament and another for a perpetual if the Houses please to satisfie their desires how these two Acts agree one with another 4 H. 3. c. 14. 36. H. 3. c. 10. 21. Iac. the Act of Limitation of Actions c. 22. and with the Statute in Edâ— the Thirds time where parliaments are ordained to be holden every year and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their menial servants from all debts during their lives if they please to continue it so long and how destructive to mens actions against them by reason of the Statute of Limitations which confines their actions to certain yeares and many other inconveniences of greater importance is easie to understand How can any man affirme that the two Houses of Parliament do act now by the Kings Writ which relates to counsel and treatie with the King 4. p. inst p. 14. Vow any Covenant p. 11. concerning the King the defence of his Kingdom and of the Church of England these are three points which it tends to as appeares by the Writ They keep their King prisoner at Holmby and will not suffer him to consult and treat with them They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent and to the same effect have devised the Oath which they call the Negative Oath Is this to defend the Kings Kingdom or their kingdom When by their solemne League and Covenant they extirpate Bishops Deanes and Chapters root branch Is this to defend the Church of England 3. pars Cook Dean and Chapter of Norwich that Church must necessarily be meant that was the Church of England when the said Writ bore test they were not summoned to defend a Church that was not in being to destroy and defend the Church are very contrary things the Church is not defended when they take away and sell the Lands of the Church The Gentleman saith The King cannot controul other Courts of Justice or prevent them from sitting or acting and therefore not the two Houses c. 14 H. 8.3 36. H. â— Dier
THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins Prisoner in Newgate UPON Divers STATUTES Concerning the Liberty and Freedome of the Subject With a perfect Table thereto annexed Plebs sine Lege ruit LONDON Printed for J. Gyles and are sold at his shop at Furnivals-Inne MDCXLVIII Here JENKINS stands who thundring from the TOWER Shook the bold Senat 's Legislative Power Six of whose words twelve Reames of votes exceed As mountaines mov'd by graines of mustard-seed Thus gasping Lawes were rescu'd from the Snare He that will save a Crowne must know and dare Sould by I. Giles at Furnivals-Inn-gaw J. Berkenhead The Contents The Law of the Land The King Treason A Parliament The present Parliament Certaine Erroneus Positions and Proceedings of both Houses of Parliament The like of the House of Commons The Propositions of the Parliament of both Kingdomes sent to New-Castle The Kings Party The Parliaments Party are Delinquents The Army serving the two Houses The Army Rescuing the King The Liberty of the Subject Messellanâ—a The Law of the Land THE Law of the Land hath for its ground 1. Custome 2. Judiciall Records 3. Acts of Parliament The two latter being Declarations of the Common Law and custome of the Realme pag. 5.21.23 The Law of Royall Government is a Law Fundamentall p. 5. The Kings Prerogative and the Subjects Liberty are determined and bounded by the Law p. 131. The King claimes no power but by the law of the land p. 131. The Law the onely Rule and Direction of the Subject in this present Warre pag. 42 131. Vbi Lex non distinguit â—bi non est distinguendum p. 132. The King THE King of England hath his Title to the Crowne and to his Kingly Office and Power not by way of trust from the two Houses of Parliament or from the people but by inherent Birth-right from God Nature and the Law p. 24 25. 38. 52 53 54 56. 57. There was never King Deposed but in tumultuous and madde times and by the power of the Armyes and they who were to bee the succeeding Kings in the head of them as Ed 3. and Hen. 4. p. 54. Usurpers were Kings de factâ— not de jure p. 54. The King is assisted by the advice of the Judges his Counsell at Law Sollicitor Atturney Masters of Chancery and counsell of State hence the Law hath setled severall Powers in the King p. 27.28 The Kings of England enjoyed that Power in a full measure till King Iohns time p 6 7 8. How Rights of Soveraignty continued in practise from Hen. 3. till 1640 p. 6. The Kings Power not separable from his Person p. 70 71. The Body Naturall and Politique in the King make but one body p. 2.38.71 Every Subject swears homage to the King p. 8. The Law gives reverence to the Person of the King p. 10. Foule mouthed Pamphlets against the King condemned p. 21. The Supream Power is in the King p. 7.13.14.16.57 58. The Oath of Supremacy in relation to the Parliament p. 67.133 The King Supream in Ecclesiasticall causes p. 10. The King the onely Supreame Governour and all other persons have their power from him by his Writ Patent or Commission p. 20 21 22.36 37. 64 65. The power of the Militia is in the King p. 8.37 In the time of Parliament p. 8. The Commission of Array in force p. 13.36 The Power of making League with Forreigners is in the King p. 8.15.17 The power of War in the King p. 20.21 The power of making Officers in the King p. 8. The King onely hath power to make Justices of Peace and of Assize p. 45 100.12â— The power of coynadge in the King p. 8. The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130 The King hath power to remove the courts at Westminster p. 45. The King can do no wrong but his Judges Counselloâ—â—s and Ministers may p. 37.41 So long as men manage the Laws they will be broken more or lesse p. 29. Treason IN the Reign of Ed. 2. the Spencers the Father and the Sonne to cover their Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Allegiance was more by reason of the Kingâ— Crowne that is his Politique Capacity than by reason of his person upon which opinion they inferred three execrable and detestable Consequences First if the King do not demeane himselfe by reason in the right of his Crowne his Leidges are bound by Oath to remove the King Secondly seeing the King could not be reformed by suit of Law that ought to be done per asperte that is by force Thirdly his Leidges be bound to Governe in aid of him and in default of him p. 9.70 Severall Treasons by the Statute 25. 8d 3. p. 12 13 14 15 16 76. The word King in the 25. Edw. 3. must be understood of the Kings natural Person p. 12 13 77. Other Treasons not specified in that Act are declared to bee no Treasons untill the King and his Parliament shall declare otherwise p. 77.101 To seize the Kings Forts Ports Magazine of Warre is High Treason p. 11. 22â— 37.77 To remove Counsellours by Arms is high Treason p. 22.40 To leavie Warre to alter Religion is high Treason p. 40. To leavie war to alter the Law is high Treason p. 11.40.77 To counterfeit the great Seal is high Treason p. 37. To adhere to any State within the Kingdom but the Kings Majesty is high Treason 24.39 To imprison the King untill hee agree to certaine demands is high Treason p. 1â— 22.77 They who imprison the King purpose to destory him p. 163. Deposers of the King adjudged Traitors by the Law of the Land p. 54. A Body Corporate cannot commit Treason but the persons can p. 16. Noble men committing Treason forfeit their Office and Dignity p. 143. Treason how punished by the Law p. 42. Treason doth ever produce fatall destruction to the Offender and never attaines to the desired end and there are two incidents inseparable thereunto p. 135. A Parliament THe word Parliament cometh from the French word Parler to Treat p. 81. The King is Principium Caput Finis Parl. p 26.48.122 The King assembles the Parliament by his Writ Adjournes Prorogues and dissolves the Parliament by the Law at his pleasure p. 57. The Writ whereby the King assembled the two Houses which is called the Writ of Summons at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peers to Consult and Treat with the King that is the Parler of great Concernments touching 1. The King 2. The defence of this Kingdome 3. The defence of the Church of England p. 24.34 p. 25.81.120 121. Counsell is not command Councellors are not Commanders p. 26. The Writ of summoning the Judges Counfell of Lâ—w and 12 Masters of Chancery is to appeare and attend the Parliament to give Counsell p.
a Corporation by the Common-Law 14 H. 8. f. 3. as the King Lords and Commons are a Corporation in Parliament and therefore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court or to keepe the peace 34 Ed 3.48 1 Ed. 4.2 The death of the King discontinues all Pleas by the Common-law 2 H. 4.8 1 H. 7.10 1 Ed. 5 1. which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed 6. 2 Ed. 6. c. 7. Patents or Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death where is the virtuall power All authority and jurisdiction spirituall and temporall is derived from the King 1 Ed. 6. c. 2. therefore none from the Housess His Majesties Subjects â— 3 Ed. 6. c. 2. 11 H. 7. c. 1. Calvins Case sâ— part Cooke 1 Pars instit 69. according to their bounden duties ought to serve the King in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for warre to be in the King It is most necessary both for common policy and duty of the Subject 5.6 Ed. c. 11. to restraine all manner of shamefull standers against their King which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity and universall weale of the Realme This condemnes their continuing of the weekely Pamphlets who have beene so foule mouthed against his Majesty The punishment of all offendors against the Lawes Q. â—â—ary 1. Mar. Pl. 2. cap. 2. belongs to the King and all jurisdictions do and of right ought to belong to the King This leaves all to his Majesty All Commissions to leavy men for the warre 4.5 P. M. c â— Q Eliz. 10 Eliz. Pl. 315. are awarded by the King The power of warre onely belongs to the King It belongs to the King to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sble governmeni de ses subjects Plow 234.242.213 Calvins case 7. pars fol. 12. Plow com 213. Corps naturall le Roy politique sunt un corps That is the king hath the sole government of his Subjects the body politick and the naturall body of the King make one body and not divers and are inseperable and indivisible The body naturall and politique make one body Plou 914.243.213 Calvins case 7. pars fol. 12 and are not to be severed Ligeance is due to the naturall body and is due by nature Gods Law and Mans Law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons 1 Eliz cap. 1 Candries case 5 pars fol. 1 at every Parliament takes a corporall Oath That the King is the supreame and onely Governour in all causes in all his Dominions otherwise he is no Member of that House The words of the Law are in all causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law 4â— Eliz. 3. pars instit fol. 6.2 Candries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors adjudged Treason by all the Judges of England To depose the King 39 Eliz. Hil. 1 Iacobi ibid or take him by force to imprison him untill he hath yeelded to certaine demands adjudged Treason and adjudged accordingly in the Lord Cobbams Case Atising to alter Religion established 39 Ed. Brad case f. 9. 16. By all the Judges of England ibid. 10. Eli. Plow 316 or any Law is treason so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24.3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Law makes not the servant greater then the Master nor the subject greater then the King for that were to subvert order and measure The Law is not knowne but by Usage and Usage proves the Law 10 Eliz. Plow 31â— and how Usage hath been is notoriously knowne The King is our onely rightfull and lawfull Leige Lord and Soveraigne K. Iames 1 Iac. cap. 1 9 Ed 4 fol 8 we doe upon the knees of our hearts adnize constant Faith Loyalty and Obedience to the King and his Royall progeny in this high Court of Parliament where all the body of the Realme is either in person or by representation We doe acknowledge hat the true and sincere Religion of he Church is continued and established by the King And doe recognize as we are bound by the Law of God and Man the Realme of England and the Imperiall crowne thereof doth belong to him by inherent birth-right and lawfull and undoubted succession and submit our selves and our posterities for ever untill the last drop of our blood be spent to his rule and beseech the King to accept the same as the first fruits of our Loyalty and faith to his Majesty and his posterity for ever and for that this Act is not compleat nor perfect without his Majesties assent the same is humbly desired This proves that the Houses are not above the King that Kings have not their titles to the Crown by the two Houses but by inherent birth right and that there can be no Statute without his expresse assent and destroyes the Chimera of the Kings virtuall being in the Houses To promise obedience to the Pope or any other State 3 Iae. cap. 4. 23 Eliz. c. 1. Prince or Potentate other then the King his heyres and successors is treason and therefore those persons who call the houses the Estates offend this Law Such Bils as his Majesty is bound in conscience and justice to passe K. Charles Collection of Ordinances fol. 727. 1 pars ib. fol. 728. are no Law without his assent To designe the ruine of the Kings person or of Monarchy is a monstrous and injurious charge Vbi lâ—x non distinguit non est distinguendum ibid. fol. 865. all the aforesaid Acts and Lawes do evidently prove the Militia to belong to the King that the King is not virtually in the two Houses that the King is not considerable separately in relation to his politick capacity that the King is not a person trusted with a power but that it is his inherent birth-right from God Nature and Law and that he hath not his power from the people These Lawes have none of those distinctions of naturall and politicke abstractum concretum power and person in Caesars time this Island had Kings and ever since which is almost 17 hundred yeares agoe No King can be named in any time made in this Kingdome by the people A Parliament never made King for they were Kings before the Parliaments are summoned by the Kings Writs which for Knights Citizens and Burgesses begins thus
England and having many adherents And that Statute to that end affirmes no such power in the two Houses which is the question but in Queene Elizabeth and the two Houses which makes against the pretence of this time Master Prynne fol. 104 of his booke intituled the Parliaments supreme power c. Objecting the Statute of the first of Queens Elizabeth and his owne Oath that the King is the onely supreame Goverhour of this Realme Answers The Parliament is the supreme power and the King supreme Governour And yet there he allowes him a Negaâ—ive Voyce and fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-Law to others who had no good Title then the Parlimentary Title makes not the King so powerfull in truth that it escapes from a man unawares To make a distinction betweene supreame Governour and supreame power is very strange for who can governe without power The King assembles the Parliament by his Writ adjournes Vide Speep 645.4 par Instit 27. 2. prorogues and dissolves the Parliament by the Law at his pleasure as is evident by constant practise the House of Commons never sate after an adjournement of the Parliament by the Kings Command Where is the supreame power The King by his Oath is bound to deny no man right 18 Ob. much lesse the Parliament to agree to all just and necessary Lawes proposed by them to the King This is the substance of the discourse against the Kings Negative Voyce The King is so hound as is set downe in the Objection Sol. but who shall judge whether the Bill proposed be just and necessary For all that they do propose are so pretended and carried in either House sometimes by one or two Voyces or some sew as aforesaid and certainly it hath been shewen the King his Counsell of State his Judges Sergeants Attorney Sollicitor and twelve Masters of the Chancery can better judge of them then two or three or few more Mr. Prynne fol. 45. In his Booke of the Parliaments interest to nominate Prnvy Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne Calvins case 7 pars fol. â—1 a stringe opinion and cites Calvins Case but leaves out the conclusions therein mentioned fol. 11. Master Prynne saith there But let this opinion be what it will without the Kings Grace and Pardon it will goe very farre and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Seale fol. 17. The Parliament hath no jurisdiction to use the Grear Seale for Pardons Generall or Particular Where is the supreme power then Mr. 19. Ob. Prynnes opening of the Seale pag. 19. saith the Noblemen and State the day after the Funerall of King Henry the third King Edward the first his Sonne being in the Holy Land made a new Great Seale and Keepers of the same And in Henry the sixts time in the first yeare of his Reigne the like was done in Parliament A facto all jus Sol. is no good Argument for than in Edward the firsts time it was no Parliament for King Henry the third was dead which dissolyed the Parliament if called in his time and it could be no Parliament of Edward the firsts time for no Writ issued to summon a Parliament in his Name nor could issue but under that New Seale it was so suddainely done afterâ— Henry the thirds death King Edward the first being then in the Holy Land it was the first yeare of his Reigne and no Parliament was held that yeare nor the second yeare of his Reigne The first Parliament that was in his Reigne was in the third yeare of his Reigne as appeares by the printed Acts Also the making of that Seale was by some Lords then present What hand had the Commons in it Concerning the Seale made in Henry the sixths time the Protector was vice-Roy according to the course of Law and so the making of that Seale was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protectour in the Kings Name summoned that Parliament and was Protector made by the Lords and not in Parliament as appeareth plainely for that Parliament was in the first of Henry the sixth and the first holden in his time and power given by Commission to the said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. But the new counterfeit Seale was made when the King was at Oxford in his owne Kingdome and not in the holy Land Mr. 20 Ob. Prynne in his Booke of the two Houses power to impose Taxes restraines Malignants against any Habeaâ— Corpus c. saith that the Parliament is above Magna Charta and fol. 15. ibid. The Parliament hath power over Magna Charta to repeale the same when there is cause This Argument supposeth that they have the Kings power Sol. which hath appeared formerly they have not But suppose they had Magna Charta containes many Morall Lawes which by the Law of the Land a Parliament cannot alter 21 H. 7.2 D. and Student 2 Dialogue For example it saith cap. 11. Justice shall not be sold delayed nor denyed to any man but by this Argument the Parliament may make Law to delay deny and to sell Justice which surely is a very ill position to maintaine What they would have doth now by the Propositions sent to Newcastie to his Majesty appeare whereby they would have him divest himselfe and settle in them all his Kingly power by Sea and Land and of themselves to have power without him to lay upon the people of this Land what taxes they thinke meet to abolish the Common prayer-booke to abolish Episcopacie and to introduce a Church Government not yet agreed but such as they shall agree on His Majesty finding a prevailing party in both Houses to steere this course and being chased away with Tumults from London leaves the Houses for these Reasons viz. First because to alter the Government for Religion is against the Kings Oath Secondly against their Oaths For every of them hath sworne in this Parliament That His Majesty is the onely supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly this course is against Magna Charta the 1. Chap. and the last Salve sint Episcopis omnes liber tales sue Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third the first Chapter enacts if any Statute be made to the contrary it shall be holden for none and so it is for judgements at Law in the 25 of Edward the 1. chap. 1.2 The great Charter is declared to be the Common Law of the Land Fourthly they endeavout to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Books of Common prayet settled by five Acts of Parliament and compiled by
will not come to them and yet the King desires to come but they wil not suffer him but keepe him prisoner at Holmby so well doe their Actions and Oathes agree 5. They sweare now King Charies is their only and supreame Governor but with a resolution at the time of the Oath taking and before and after that he shall not be only or supreame Governour or only and supreame but not any Governour at all For there is no point of Government but for some yeares past they have taken to themselves and used his name only to abuse and deceive the people 6. That this virtuall power is a meere fiction their Propositions sent to Oxford to Neweastle to be signed by the King doe prove it so What needs this adoe if they have the virtuall Power with them at Wistminster 7. To affirme that the Kings power which is the vertue they talke of is separable from his person is High Treason by the Law of the Land which is so declared by that learned man of the Law Sir Edward Cocke so much magnified by this present Parliament who in the 7 part of his Reports in Calving case fol. 11 saith thus In the reigne of Edward the second the Supencers the Father and Sonne to cover the Treason hat hed in their hearts invented this damnable and damned opinion that homage and Oath of Legeance was more by reason of the I Kings Crowne that is of his potitick capacity theu by reason of ohe person of the King upon which â—â—inion they inferred three execraâ—le and detestable consequences h. If the King to not demeaue himselfe by reason in the right of his Crowne his Lieges are bound â—y Oath to remove the King 2 seeing that the King â—ould not be retormed by â—nte of Law that ought so be dene per aspertes that is by orce 3. That his Lieges be beund to governe in â—yde of him and in default of him all which wâ—re condemned by two Parliaments one in the raigue of Edw. 2. called exilium Hugonis le Spencer and the other in anno 1. Edw 3 cap. 2. And that the naturall body and politick maks one indivisible body that these two bodies incorporate in one person make one body and not divers is resolved as the Law of Eng. 4 Ed 3 Ploydon Com. fol. 213 by Sir Co bet Catlin L. Chiefe Justice of Eng. Sir Iâ—mes Dâ—er L. Chief Justice of the Common pleas the L. Sanders L. Chief Baron of the Excheâ—ner by the rest of the Judges viz. Justice Restall Justice Browne Justice Corbet Justice weston Baron Frevylâ— Carus and Powâ—rel Sergeant to the Queene Gerrard Auturny Generall Carell Atturney of the Dutchy Pâ—owdon the learnedest man of that age in the knowledge of the Law and Customes of the Realme 8. The Law in all ages without any controversie is and hath been that no Act of Parliament bindes the Subjects of the Land without the assent of the King â— Hâ—â— 3 Mogn Charta So in every Age till this dâ—y and in every Kings time as appeares by the Acts in Print 1 part of the Iustit Sect. 234. 〈◊〉 fine where many of the Law-Bookes are â—iied 7 Hen. 7.14.12 of Hen. 7.20 either for Person Lauds Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the virtuall power be in the Houses there needs no assent of the Kings The stiles of the Acts printed from 9 Hen. 3. to 1 Hen. 7. were either The King ordaines at his Parliament c. or the King ordaineth by the advâ—ee of his Prelates and Barâ—â—rs and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath fithence continued thus It is oâ—dained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law bookes call the King the Fountaine of Justice and the life of the Law 9. 2 Han. 4 Cap 22 4 pars instit 42. Mr. â—â—in in his Treatise of the great Seal fol. 17.27 Hen. 8 Chap. 24. Mercy as well as Justice belongs by the Law of the Land onely to the King This is confessed by Mr. Pryn and it is so without any question The King can onely pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27. Hen. 8. c. 24. 10. Queene Elizabeth summoned her first Parliament to bee held the 23. of Jan. in the first yeare of her Majesties Raigne The Lords and commons assembled by force of the same Writ the 21 day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25 of the same Month of January Resolved by all the Judges of England that the Parliament began not the day of the returne of the Writ 3 of Eliz. Dier 2â—3 viz. the 23. of January when the Lords and Commons appeared but the 25 of the said Moneth when the Queene came in person which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sence They have the King now a prisoner at Holmby with guards upon him and yet they governe by the virtuall power of their prisoner These are some few of the causes and reasons which moved me to deliver that paper to Mr. Corbet which I am ready to justifie with my life and should hold it a great honour to dye for the honourable and holy Lawes of the Land that which will save this Land from destruction is an Act of Oblivion and his Majesties gracious generall pardon the Souldiers their Arrears and euery man his own and truth and Peace established in the Land and a favourable regard had to the satisfaction of tender Consciences April 29. 1547. David Ienkins THE ARMIES INDEMNITY WITH ADDITION Together with a DECLARATION SHEWING How every Subject of ENGLAND ought to be tried for Treasons Felonies and all other Capital Crimes as is set down in the Lawes of the LAND By DAVID IENKINS now Prisoner in the Tower of London Printed in the Yeare 1648. The Armies Imdemnity c. UPon the publishing of the Ordinance of the 22 of May last for the Indemnity of the Army certaine Gentlemen well affected to the peace of the Kingdome and safety of the Army desired mee to set down in writing whether by the Law of the Land the said Ordinance did secure them from danger as to
instit 110. 4 pars p. 49. that is the sence of the word Parler in the French Tongue The Writ whereby the two Houses are assembled which is called the Writ of Summons of Parliament at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peeres the Iudges and Kings Counsell to consult and treate with the King that is the Parler of great concernments touching 〈◊〉 the King secondly the defence of his Kingdome thirdly the defence of the Church of England It cannot be a Parliament that will not parle with their King but keepe him in prison and not suffer him to come to them and parle and therefore the Law and sense and reason informing every man that is no manner of parliament the King with whom they should parle being so restrained that they will not parle with him the army hath no manner of security by this Ordinance for their indemnification refers to that which is not in being untill the King be at Liberty 7. It is more than probable that their Iudges before the last Circuite had instructions to the effect of this Ordinance The Common souldiers second Apology 6. Grievances of the Army published 15. May last Three grievances of Col. Riches Regiment but they the Iudges making conscience of their Oath layd aside the said instructions and ought and may and it is believed will no more regard this Ordinance than the said instructions What was done in the last circuit the army well knowes touching many of their fellow Souldiers 8. The Hâ—uses in their first proposition to his Majesty for a safe and well-grounded peace sent to Newcastle to desire a pardon from his Majesty for themselves they who desire a pardon cannot granr a pardon comoÌ„n reason dictates this to every man and therefore that the army should accept an indemnity for them who seek it for themselves or should conceive it of any manner of force is a fancy so that no man in the whole army but may apprehend that it is vain and a meer delusion 9. His Majesty by his gracious message of the 12 of May last hath offered an Act of Oblivion and a generall pardon to all his people this done the Law doth indemnifie the Army without all manner of scruple for any thing that hath been done for it is an Act of Parl. when the King two houses concur and bindes all men I here is no safety by the Ordinance there is safety by an Act of Parliament and will not reasonable men preferre that which is safe before that which is unsafe 10. His Majesty by his said Letter agrees to pay the arrears of the army J am sure that it is a publick debt and the chiefest and the first that by the two Houses should be paid and before any dividend or gratuities bestowed among themselves for their blood limbs and lives have put and kept the both Houses at rest in the power they have So by this concurrence of his Majesty for your indemnity and for your arreares the Army have not an Ordinance or the Publick Faith but the Law of the Land to make sure unto them their indemnity for all acts and for their arrears and therewith also bring peace to the Land 11. The Kingdom and people generally desire these things To such an army just and reasonable things must not be denyed the things formerly proposed are most just and reasonable you may have them if you will if you will not you render this Kingdom miserable wherein you will have your share of miseries the head and the body are such an incorporation as cannot be disolved without the destruction of both The additionall Ordinance of both Houses passed the 5. of Iune instant for the fuller indemnity of the Army makes nothing at all to the matter 1. For that it extends not to Felony Homicide Burglary Robbery or any other cappitall crime which is the main businesse insisted upon and most concerneth the Souldiers security 12. The both Houses in the said additional Ordinance say Mr. Pyms Speech against tho Earl of Strafford p. 16. Six considerations printed by the command of the House of Commons that it is expedient that all offences be pardoned and put in oblivion pardon and oblivion cannot be understood to be for a time but for ever and they themselves confess that an Ordinance is not binding but pro tempore which with the most advantagious interpretation can be but a reprive or delay of the execution of the Law and therefore that cannot pardon or put in oblivion by their own shewing But the Law of the Land is and so it hath constantly been practised in all times that no persons of what estate soever 27 H. 8. c. 24. have any power to pardon treason felony or any other offences but the King only who hath the sole and whole power to pardon all such crimes whatsoever And in the same manner an Ordinance is of no authority at all to take away the right of private mens actions by any evidence it can give in truth all the evidence that this Ordinance gives is that it records to posterity nothing but a lawlesse and distempered time For remedy thereof I say again it is a certaine truth this Kingdom without an act of Oblivion and a general pardon and the payment of Souldiers-arrears and a meet regard had to tender consciences will unavoydably be ruined Iune 10. 1647. DAVID IENKINS Prisoner in the Tower of London Sundry Acts of Parliament mentioned and cited in the Armies Indemnities set forth in words at large for the better satisfaction of such as desire rightly to be informed 25. Edw. Chap. 5. A Declaration what offences shall be adjudged Treason WHereas divers opinions haue béen before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in the manner as hereafter followeth That is to say When a man doth compasse or imagine the death of our Lord the King or of our Lady the Quéen or of the eldest Son and Heire or do violate the Kings companion or the Kings eldest Daughter vnmarried or the Wife of the Kings eldest Son and Heire or if a man do leavy War against the Lord our King in his Realm or be adherent to the Kings enemies in his Realm giuing to them ayd and comfort in the Realm or else-where and thereof be probably attainted of open deed by people of their condition And if a man counterfeit the Kings great or priuy Seal or his Mony and any man bring false mony into this Realm counterfeit to the mony of England and the mony called Lusburgh or other like to the said mony of England c. 11. Hen. 7. Chap. 1. None that shall attend upon the King and do him true service shall be attainted or forfeit any thing THE King our
Soueraign Lord calling to remembrance the duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serue their Prince and Soueraigne Lord for the 〈◊〉 being in his Wars for the defence of him and the land against euery rebellion power might raised reared against 〈◊〉 and with him to â—â—er and abide in seruice in battell if â—ase so require and that 〈◊〉 the same service what fortune euer fall by chance in the same battel against the mind and will of the Prince as in this land sometime passed hath béen seen that it is not reasonable but against al laws reason good conscience that the said subjects going with their Soueraign Lord in Wars attending upon him in his person or being in other places by his coÌ„mandement within this Land or without any thing should lose or forfeit for doing their duty or seruice of Allegiance It be therefore ordained enacted and established by the King our Soueraign by the advice and assent of his Lords Spirituall and Temporall and the Commons in this present Parliament assembled and by authority of the same that from hence forth no manner of person or persons whatsoeuer he or they be that attend upon the King and Soueraign Lord of this land for the time being in his person and do him true and faithfull seruice of Allegiance in the same or be in other places by his commandement in his wars within this land or without that for the said déed and true duty of Allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by Act of Parliament or otherwise by any processe of Law wherby he or any of them shal lose or forfeit life lands tenements rents possessions heriditaments goods chattels or any other things but to bee for that déed and service utterly dischar ged of any vexation trouble or loss And if any Act or Acts or other process of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other process of Law whatsoever they shall be shall bee utterly voyd Prouided alwaies that no person or persons shall take any benefit or aduantage by this Act which shall hereafter decline from his or their said Allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degrée soever they be of shall haue any power or authority to pardon or remit any Treason Murders Man slaughters or any other Felonies c. but that the King shall haue the sole and whole power and authority thereof united knit to the Imperiall Crown as of right it appertaineth c. And in the same Statute it is enacted further That none shal haue power of what estate degrée or condition soeuer they be to make Iustices of Eyre Iustices of Assize Iustices of Peace c but all such Officers and Ministers shal be made by Letters-Paâ—ents under the Kings great Seal in the name and by the authority of the King and his Heires Successors Kings of this Realm In the first ear of Queen Mary and the first Chapter It is enacted by the Quéen with the consent of the Lords Conmions That no déed or offence by act of Parliament made treason shall be taken deemed or adjudged to be â—igh Treason but only such as be declared and expressed to be Treason by the Act of Parliament made 25. Ed cap. 2. before mentioned A Declaration of Mr. David Jenkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryals of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Juries and not otherwise unless it be by Act of Parliament THe Common Law of this Land is that every Freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concur for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Charta 19. 2 part inst fol 28 29.46 48 49 50. composed by Sir Ed. Cook and published by the Order of the House of Commons in May 1641. 4 pars instit fol. 41.356 No man shall otherwise be destroyed c. but by the lawfull judgement of his Peers or by the common Law of the Land Peeres to Noblemen are Noblemen Peeres to the ComoÌ„ns are Knights Gen c. Judgement of peers referres to peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by indictment presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29 and by 25 Ed. 3. c. 4.28 Ed. 3. c. 3.37 Ed. 3 c. 8.42 Ed. 3. c. 3. If the Lords wil try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Laws Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suiters to the King that what they had done in future time might not be drawn into president because that which they had done was against the Law b Rot. Par. roul 4. â— 2 Num. 2. part inst p. 50 with this agrees Sir Iohn Lees case Rot. Par. 42. â— 3. Num. 22.23 2. inst f. 50. with this agrees the practise and usage of all times in this Land all the free Commoners of this Kingdome hath alwayes been tryed and acquitted or condemned in capitall causes by Iurers of their equals An Ordinance bindeth not in Law at all c See 4. p. inst f. 23.48.232.298.292 2. p. inst f. 47 48.157.643 4. H. 7. faâ— 1. H. 7. f. 14.3 p. inst f. 41. and but pro tempore as the two Houses now affirme a man's life cannot be tried by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. 2. Philâ—p and Mary c. 10. It is enacted that all trials for Treason hereafter to be had shall be according to the course of the Common Law and not otherwise If the crime charged upon any be Treason against the two Houses against the Parliament it caannot be for there is no Parliament without the King That is no Treason in Law as appeares by 25. Ed. 3. c. 2. 11. R. 2. c. 3. 1. H. 4. c. 10. 1. 2 Philip and Mary c. 10. 3. part of the Institutes page 23 An Act of Parliament to make any a Iudge where he is party is a void act d Dr Bonams case 8. part of Cooks Reports for none can be a Iudge and party in the