Land or without any thing should lose or forfeit for doing their duty or service of Allegiance It be therefore ordained enacted and established by the King our Soveraigne Lord by the advice and assent of the Lords spiritual and temporall and the Commons in this present Parliament assembled and by authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upoâ— the King and Soveraigne Lord of this Land for the time being in his person and doe him true and faithfull service of allegiance in the same or be in other places by his commandement in his wars within this Land or without that for the said deed and true duty of allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by act of Parliament or otherwise by any processe of Law whereby hee or any of them shall lose or forfeit life lands tenements rents possessions hereditaments goods chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse And if any act or acts or other processe of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that act or acts or other processe of the Law whatsoever they shall be stand and be utterly void Provided alwaies that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degree soever they be of shall have any power or authority to pardon or remit any treason murders man-slaughters or any kinde of Fellonies c. but that the King shall have the sole and whole power and authority thereof united and knit to the Imperiall Crowne as of right it appertaineth c. And in the same it is enacted further that none shall have power of what estate degree or condition soever they be to make Justices of Eyre Justices of Assize Justices of the Peace c. but all such officers and Ministers shall be made by Letters Patents under the Kings great Seale in the name and by the authority of the King and his Heires and Successors Kings of this Realme In the first yeare of Queen Mary and the first Chapter It is enacted by the Queen with the consent of the Lords and Commons That no deed or offence by Act of Parliament made treason shall be taken deemed or adjudged to be high treason but only such as be declared and expressed to be treason by the Act of Parliament made 25. Ed. 3. cap. 2. before mentioned A Declaration of M. David Ienkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryalls of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Iuries and not otherwise unlesse it be by Act of Parliament THe common Law of this Land is That every freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concurre for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Chart. cap. 29. 2 part instit fol. 28 29.46.48 49 50. composed by Sir Ed. Cooke and published by the Order of the House of Commons in May 1641. No man shall otherwise be destroyed c but by the lawfull judgement of his Peers or by the common Law of the Land Peers to Noblemen are Noblemen Peers to the Commons are Knights Gentlemen c. Judgement of Peers refers to Peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by Indictment Presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29. and by 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Lawes Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suters to the King that what they had so done in future time might not be drawn into president because that which they had so done was against the Law b Rot. Par. 1. roule 4. E. 3. Num. 2. part inst page 50. with this 〈◊〉 grees Sir Joâ—n Lees case Rot. Par. 42. E. 3. Num. 22.23 2. inst fol. 50. with this agrees the practice and usage of all times in this Land all the free Commoners of this Kingdome have alwayes been tryed and acquitted or condemned in capitall causes by Jurers of their equalls An Ordinance bindeth not in Law at all c See 4. part inst fol. 23.48.292 2. part inst f. 47 48. and but pro tempore as the two Houses now affirme a mans life cannot be tryed by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. and 2. of Philip and Mary chap. 10. It is enacted that aâ—â— tryalls for Treason hereafter to be had shall be according to the course of the common-law If the crime charged upon any be treason against the two Houses against the Parliament it cannot be for there is no Parliament without the King that is no Treason in Law as appeares by 25. Ed. 3. chap. 2. 11. R. 2. chap. 3. 1 Hen. 4. cha 10. 1. and 2. Philip and Mary chap. 10. 3 part of the institutes Page 23. An Act of Parliament to make any a Judge where he is party is a void act d Dr â—oâ—ams case 8. part of Cooks reports for none can be a Judge and party in the same cause and therefore the House of Peers being a party touching the crime charged upon any man whom they would try by an Ordinance for Treason against both Houses cannot be a Judge By the Petition of Right e Petition of Right 3. Car. Regis if any man deserve death he ought to suffer the same according to the Lawes of the Land established and not otherwise but an Ordinance of the Lords is no established law The Protestation the Vow and Covenant the solemne League and Covenant the Declarations of both Houses had made and published sithence this unnaturall Warre are amongst other things sworne and set downe to be for the maintenance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said Protestation Vow and Covenant League and Covenant and
the Lawes be violated And no reflection to be made on the King All Counsellors and Judges for a yeare and three months untill the tumults began this Parliament were all left to the ordinary course of Justice what hath beene done sithence is notorious For great Causes and considerations an act of Parliament was made for the surety of the said Kings person R. 3 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the houses have greater reason to care for the preservation of his Majestie The Subjects are bound by their allegiance to serve the King for the time being against every Rebellion power and might H. 7. 11 H. 7. cap. 1. reared against him within this land that it is against all lawes reason and good canscience if the King should happen to be vanquished that for the said deede and true duty and alligeance they should suffer in any thing it is ordeined they should not and all acts of processe of law hereafter to be made to the conteary are to be void This law is to be understood of the naturall person of the King for his politique capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this act It is no statute if the King assent not to it 12 H. 7.20 H. 8. and he may disassent this proves the negative voice The King hath full power in all causes to doe justice to all men this is affirmed of the King 24 H. 8. cap. 1â— 25 H. 8. cap. 2â— and not of the two Houses The commons in Parliament acknowledg no superior to the King under God the houses of Commons confesse the king to be above the representative body of the Realme Of good right and equity the whol sole power of pardning treasons fellonies c. belong to the King 27 H. 8. cap. 24 Note as also to make all Justices of Oyer Terminor Judges Justices of the peace c. This law condemns the practise of both houses at this time The kings royall assent to any Act of Parliament signed with his hand expressed in his Letters-patents under the great Seale and declared to the Lords and Commons shall bee as effectuall 33 H. 8. cap. 21 as if he assented in his owne person a vaine act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principâ—ll members of the body Dier 38. H. 8 fo 59.60 the Commons the inferior members and so the body is composed therefore there is no more Parliament without a king then there is a body without a head There is a corporation by the Common-law as the King Lords 14 H. 8 fol. 3. and Commons are a corporation in Parliament therfore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court 24 Ed. 3.48 1 Ed. 4.2 2 H. 4.8 1 H. 7.10 1 Ed 5.1 or to keepe the Peace The death of the King discontinues all pleas by the Common-law which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed. 6. 1 Ed. 6. cap. 7. Patents of Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death Where is the virtuall power All authority and jurisdictions spirituall and temporall is derived from the King 1 Ed. 6. cap. 2. therefore none from the Houses His Majesties subjects 2. 3 Ed 6. ca. 2 11 H. 7. cap. 1. Calvins Case Sa. pars Cooke according to their bounden duties ought to serve the king in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for war to be in the king It is most necessary both for common policy and duty of the subject 5. 6 Ed. cap. 11 to restrain all manner of shamefull standers against their king which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity universal weale of the realm This condemns their continuing of the weekely pamphlets who have been so foule mouthed against his Majesty The punishment of all offenders against the lawes belongs to the king Q. Mary 1 Mar. Pl. 2. c. 2 and all jurisdictions doe and of right ought to belong to the King This leaves all to his Majesty All Commissions to levy men for the warre 4 5 P M. c. 3 Q. Eliz. 10 Eliz pl 315 are a warded by the king The power of warre only belongs to the king It belongs to the king to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sole government deâ—ses subjects Plow 234.242 213. Calvins case 7. pars fol 12. Plow com 213 Corps naturall le Roy politique sunt un corps that is The king hath the sole government of his Subjects the body politique and the naturall body of the king make one body and not divers and are inseparable and indivisible The body naturall and politique make one body and are not to be severed Ligeance is due to the naturall body Plow 934 243.213 Calvins case 7. pars fol. 12. and is due by nature Gods Law and Mans law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons at every Parliament takes a corporall Oath 1 Eliz. cap. 1. Cawdries case 5. pars fol. 1. That the King is the Supreme and only Governour in all Causes in all his Dominions otherwise he is no Member of that House the words of the Law are In all Causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law Cawdries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors 43 Eliz. 3 pars instit fo 6.2 adjudged Treason by all the Judges of England To depose the king or take him by force to imprison him untill he hath yeelded to certain demands adjudged Treason 39. Eliz. Hil. 1 Jacobi ibid. and adjudged accordingly in the Lord Cobhams Case Arising to alter Religion established or any Lawe is Treason 39 Ed. Bâ—adf case f 9. 16. By all the Judges of England ibid. 10 Eliz Plow 316. so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24. 3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Lawe makes not the servant greater then the Master nor the subject greater then the King for that were to subvert Order and Measure The Law is not knowne but by Usage 10 Eliz. Plow 319. and Usage proves the Law and how Usage hath been is notoriously knowne The King is our only Rightfull and lawfull Liege Lord and Soveraigne K. James 1 Jac. cap. 1. 9 Ed. 4. fol. 8. We
his Parliament shall declare otherwise they are the very words of the Law 3. Pars instit Pag. 22. 2. pars instit Pag. 47 48. 4. pars instit P. 23.48.29 King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason then there is declared as appeares by the Lord Cooke in the places cited in the Margin A Law-booke published by order of the House of Commons this Parliament 3. Pars instit cap. Treason Pa. 9 10 12. Mr S. Iohn the Sollicitor in his Speech upon the araignment of the Earle of Straford Printed by order of the House of Commons p. 7. 13. as appeares in the last leafe of the second part of the Institutes published likewise by their Order The Resolutions of all the Judges of England upon the said Statute of the 25. Ed. 3. as appeares in the said third part of the Institutes Chap. High-Treason have been that to imprison the King untill he agree to certaine demands is High-Treason to seize his Ports Forts Magazine for Warre are High-Treason to alter the Lawes is High-Treason The word King in the Statute of 25. Ed. 3. cap. 2. must be understood of the Kings naturall person for that person can only dye have a wife have a sonne or be imprisoned The Privilege of Parliament protects no man from treason or felony 4. Pars instit c. Parl. p. 25. howbeit he be a Member much lesse can they protect others Those who cannot protect themselves have no colour to make Ordinances to protect others who are no Members The Statute of 11. 11. M. 7. cap. 1. Hen. 7. cap. 1. doth by expresse words free all persons who adhere to the King The Army by an Act of Indemnity free themselves from all those dangers Stamford l. 2. fol. 99. 18 Ed. 3. Statutes at large 144. 20 Ed. 3. c. 1. 11. Rie 2. c. 10. 4 Pars instit Pag. 23.48.29 which an Ordinance can no more doe then repeale all the Lawes of the Land the whole and sole power by Law to pardon all Treasons Felonies c. being solely and wholly in the King as is cleared by the Statute of 27. H. 8. c. 24. and the Law of the Land in all times Having shewed the danger of the Army by the Law of the Land next consider the Ordinance of the Lords and Commons published the 22. of May last for their Indemnity By the ensuing discourse it doth appeare they have no Indemnity at all thereby The Indemnity proposed by the Ordinance is for any Act done by the authority of the Parl. or for the service or benefit thereof and that the Judges and all other Ministers of Justice shall allow thereof This Ordinance cannot secure the Army for these reasons I. Their Judges are sworne to doe justice according to the Law of the Land 3. Pars instit Pag. 22. 2 Pars instit 47 48. 1. Pars instit 193. Princes case â— â—â—perte and therefore the Judges must be forsworne men if they obey it because an Ordinance of both Houses is no Law of the Land and no man can beleeve they will perjure themselves so palpably and visibly in the eye of the world II. All trials for Treasons Felonies Robberies Magna Charta cap. 29. 25. Ed. 3. cap 4. 28. Ed. 3. cap. 3. 37. Ed. 3. cap. 8. 42. Ed. 3 cap. 3. and such like Capitall offences are by the Law of the Land to be by indictment of a Jury appointed out of the Neighbourhood where the offence was done There is no common Jury-man but understands what the Law is in these cases as well as the best Lawyers and the Law makes the Jury Judges of the fact whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience Declaration of the Army presented at Warden and Printed by the appointment of the Officers subscribed and thereupon doe rightly apprehend their danger Now no man can thinke that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countries and thereby utterly destroy their owne Rights and Properties III. If the Judges conceive as they may that the taking of other mens horses or goods is not by the Authority of Parliament or for the service and benefit thereof the souldier dyes for it they may say to steale or rob any man of his goods is not for the Parliaments service but against it which was alwayes the sence of the people and doubtlesse the Jurors will not thinke otherwise IV. This Ordinance is restrained to the authority 4. Pars instit pag. 1. 3. Pars instit pag. 22. 1. Pars instit pag. 1. 28. H. 8. sâ—l 11. Dier 38. H. 8. sol 60. 12. H. 7.20 1. Pars instit 159. Princes case 8. reports service or benefit of the Parliament The Lords and Commons make no more a Parliament by the Law of the Land then a body without a head makes a man for a Parliament is a body composed of a King their head the Lords and Commons the Members All three together make one body and that is the Parliament and none other And the Judges may ought and I beleeve will according to their Oathes proceed as not bound at all by this Ordinance For it is restrained to the Authority of Parliament â—â—vice or benefit thereof whereas the two Houses are not the â—â—â—liament but only parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people V. This Ordinance is against their Ordinances which expresly prohibit plundring 28 Aug. 1642. Col. of Ord. first part 565.592.605 severall Ordinances and so there is one Ordinance against another whereby their Judges have an out-let to proceed on the one or the other and thereby the Army hath no manner of security VI. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest here signifies in that Language to consult treat 1. Pars iastit 109. 1 Pars instit 110. 4 Pars p. 49. that is the sense of the word Parler in the French Tongue The Writ whereby the two Houses are assembled which is called the Writ of Summons of Parliament at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peeres the Judges and Kings Councell to consult and treate with the King that is the Parler of great concernments touching 1. the King secondly the defence of his Kingdome thirdly the defence of the Church of England It cannot be a Parliament that will not Parle with their King but keep him in prison and not suffer him to come to them and parle and therefore the Law and sence and reason informing every man that is no manner of Parliament the King with whom they should parle being so restrained that they will not
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
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
Court Plowd Com. 319. nor Statute Law to be a Court nor common usage they have no Iournall Book but since E. 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 doe the lesse cannot doe the greater It is ordained 25. E. 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 Foresta are declared by the Stat. of 25. E. 1. c. 1. to be the Common Law of the Land All Iudges and Commissioners are to proceed Secundum legem consuetudinem Regni Anglia 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 their Franchise This no way trenches upon the Parliament for it is in Law no Parliament without King and both Houses 4 pars Instit pag. 1. 3 Pars Instit p. 23. I have only in my Paper delivered to Mr Corbet applyed my selfe to that Committee that they had no power to examine me 12. â— 7.20 Princes case 8 Pars Cook 1 Pars Instit p. 159. 14. H. 8.3 Dier 38. H. 8.60 1 Pars Instit p. 19. b. 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 Cooks relation that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeth time and since Few facts of late time never questioned make no legall power nor Court 4 Pa. Instit ca. Parl. Ã facto ad jus is no good argument for the words of the Statute of 6. H. 8. c. 16. that a licence to depart from the House of Commons for any Member thereof is to be entred of Record in the Book of the Clark of the Parliament appointed or to be appointed for that House doth not conclude that the House of Commons is a Court of Record 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 Lex aliud tranctans nil probat the word Record there mentioned is only 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 Fitzh Nat. Br. 70. Fitzh Nat. Br. 13. 12. H 4.23 34. H. 6.49 Recordari facias loquelam 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 Recoâ—d and so of a Court Baron the Law and custome of England must be preserved or England will be destroyed and have neither Law nor custome Let any man shew me 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 Sir Giles Mâ—mpessau Michell and others of late were condemned by the prosecution of the House of Commons in King James his time did King James ever contradict it And so of ancient times 4 Pars Inslit Tit. Parliam pag. 23. where the House of Peeres condemned the Lord Latimer in 50. E. 3. the Kings pardon freed him which shewes cleerly that the Kings expresse or implyed assent must of necessity be had to make a Delinquent The Geatleman saith That the Parliament sitâ— or ought to sit by something greater thâ—n the Kings Writ c. No Parliament did ever sit without the Kings Writ nor could ever Parliament begin without the Kings presence in person 4 Pars Instit pag. 4. 6. or by a Guardian of England by pacent under the Kings Great Seale the King being in reâ—â—tiâ— or by Commission under the Great Seale to certaine Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majesty hath been pressed and hath passed two Acts of Parliament one for a Triennall Parliament and another for a perpeâ—uall if the Houses please to satisfie their desires â—ow these two Acts agree one with another and with the Statute in E. the thirds time where Parliaments are ordained to be holden every yeare 4 E. 3. c. 14. 36. E. 3. c. 10.21 Iac. the Act of Limitation of Actions cap. 26. and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their meniall 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 years and many other inconveniences of greater importance is easie to understand How can any man affirm that the two Houses doe act now by the Kings Wrie which relates to Counsell and Treaty with the King concerning the King the defence of his Kingdome and of the Church of England 4 Pars Instit p. 14. these are the three points which it tends to as appeares by the Writ They keep their King prisosoner at Holnby and will not suffer him to consult and treat with them Vow and Covenant p. 11. 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 to defend the Kings Kingdome or their Kingdome When by their Solemn League and Covonant they extirpate Bishops Deanes and Chapters root and branch is this to defend the Church of England 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 3 Pars Cookâ— Deane and Chapter of Norwich to destroy and defend the Church are very contrary things the Church is not desended when they take away and sell the Lands of the Church The Gentleman saith The King cannot contrâ—le other Courts of Justice or prevent them from sitting or acting and therefore not the
separable from his Person is High Treason by the Law of the Land which is so declared by that learned man of the Law Sir Edward Coke so much magnified by this present Parliament who in the 7. part of his Reports in Calv. Case fo 11. saith thus In the reigne of Edward the second the Spencers the Father and Son to cover the Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Ligeance was more by reason of the Kings Crowne that is of his politicke capacity then by reason of the person of the King upon which opinion they inferred 3. execrable and detestable consequences 1. If the King doe not demeane himselfe by reason in the right of his Crowne his lieges are bound by Oath to remove the King 2. seeing that the King could not be reformed by suit of Law that ought to be done per aspertee that is by force 3. That his lieges be bound to governe in aid of him and in default of him All which were condemned by two Parliaments one in the raigne of Edw 2. called exilium Hugonis le Spencer and the other in Anno 1. Edw. 3. cap. 2. And that the naturall body and politicke makes one indivisible body and that these two bodies incorporate in one person make one body and not divers is resolved as the Law of England 4. Eliz. Ploydon Com. fol. 213. by Sir Cobert Catlin Lord Chiefe Justice of England Sir James Dier Lord Chief Justice of the Common Pleas the Lord Sanders Lord Chiefe Baron of the Exchequer and by the rest of the Judges viz. Justice Rastall Justice Browne Justice Corbet Justice Weston Baron Frevyll Conne and Pewdrell Sergeant Gerrard Atturny Generall Carreâ— Atturny of the Dutch Plowdon the learnedst man of that age in the knowledge of the Law and Customes of the Realm 8. The Law in all ages without any controversie is and hath beene That no Act of Parliament bindes the Subjects of this Land without the assent of the King either for person Lands Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the vertuall Power be in the Houses there needes no assent of the Kings The stiles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either 9 Hen. 3. Magna Charta So in every age till this day and in every Kings time as appears by the Acts in Print 1 part of the Instit Sect. 234. in fine where many of the Law-Bookes are cited 7. H. 7.14.12 of Hen. 7.20 The King ordaines at his Parliament c. or the King ordaineth by the advice of his Prelats and Barons and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath sithence continued thus It is ordained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law-Bookes call the King the Fountaine of Justice and the life of the Law 9. 2. H. 4. c. 22. 4 pars instit 42. M. Prin in his Treatise of the great Seale Fol. 17.27 Hen. 8. Chap. 24. Mercy as well as Justice belongs by the law of the Land only to the King This is confessed by Master Prynn and it is so without any quection The King can only pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27 Hen. 8. Cap 24. 10. Queene Elizabeth summoned her first Parliament to be held the 23. of January in the first yeare of Her Majesties Raigne The Lords and Commons assembled by force of the same writ the 23. day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25. of the same Month of January Resolved by all the Judges of England 3 Of Eliz. Dier 203. that the Parliament began not the day of the returne of the writ viz. the 23. of January when the Lords and Commons appeared but the 25. of the said moneth when the Queen came in person Which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sense They have the King now a prisoner at Holmby with guards upon him and yet they governe by the vertuall Power of their Prisoner These are some of the causes and reasons which moved me to deliver that paper to Master Corbet which I am ready to justifie with my life and should hold it a great honour to die for the honourable and holy Lawes of the Land That which will save this Land from destruction is an Act of Oblivion and His Majesties gracious generall pardon the Souldiers their Arears and every man his owne and Truth and Peace established in the Land and a favourable regard to the satisfaction of tender Consciences Aprill 29. 1647. David Jenkins THE ARMIES INDEMNITY With Addition Together With a Declaration shewing how every Subject of England ought to be tried for Treasons Felonies and all other Capitall Crimes as it is set down in the Lawes of the LAND By David Jenkins now Prisoner in the Tower of LONDON Printed in the Yeare 1647. The Armies Indemnity c. UPon the publishing of the Ordinance of the 22. of May last for the Indemnity of the Army certain Gentlemen well affected to the peace of the Kingdome and safety of the Army desired me to set downe in writing whether by the Law of the Land the said Ordinance did secure them from danger as to the matters therein mentioned For whose satisfaction in a businesse wherein the lives and fortunes of so many men were concerned and the Peace of the Kingdome involved I conceived I was bound in duty and conscience faithfully and truly to set downe what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Army by the Law of the Land is apparent to all men 25. Ed. 3. c. 11. 2 Ri. 2. cap. 3. 1 Hen. 4. c. 10. 1 and 2. Phil. and Mary c. 10 It is high Treason by the Law of the Land to leavy warre against the King to compasse or imagine his death or the death of his Queene or of his eldest Sonne to counterfeit his Money or his great Seale They are the words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and
and the subversion of the Law and Land laying taxes on the people never heard of before in this Land devised new oathes to oppose forces ray fed by the King not to adhaere to him but to them in this Warre which they call the Negative Oath and the Vow and Covenant By severall wayes never used in this Kingdome they have raised monies to foment this warre and especially to inrich some among them namely first Excise secondly Contributions thirdly Sequestrations fourthly Fift parts fiftly Twentieth Parts fixtly Meale-money seventhly Sale of Plundered goods â—ightly Loanes ninthly Benevolences tenthly Collections upon their Fast-dayes eleventhly new Inpositions upon Merchandizes twelvethly Guards maintained upon the charge of private men thirteenthly Fifty Subsidies at one time fourteenthly Compositions with such as they call Delinquents fifteenthly Sale of Bishops lands c. From the Kings party meanes of subsistance are taken 1 R. 3. cap. 3. â—ract li. 3. c. 8. Stanford 192. Sir Ger. Fleetwoods Case 8. pars Cook 7. H. 4 last lease before any indictment their Lands seized their goods taken the Law allows a Traytor or Fellon attainted Necessaria sibi familie sua in victâ—â— vâ—stitu where is the Covenant where is the Petition of light where is the liberty of the subject First We have ayded the King in this warre contrary to the negative oath and other votes Our warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly Wee have maintained the Commission of Array by the Kings Command contrary to their votes We are warranted by the statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the Oracle of the Law as they call him Thirdly We maintained Arch-Bishops and Bishops whom they would suppresse Our warrant is Magna Charta and many statutes more Fourthly we have maintained the booke of Common prayer they suppresse it Our warrant is five acts of Parliament in Edward the sixt and Queene Elizabeths time 5. Peschâ— 35. Elizabeth inter placita Coronae in Banco Regis New booke of Entries sol 252. Penry for publishing two scandalous Libels against the Church government was indicted arraigned attainted and executed at Tyburne Fifthly We maintained the Militia of the Kingdome to belong to the King they the contrary Our warrant is the statute of the seventh of Edward the first and many statures sithence the practise of all times and the custome of the Realm Sixthly We maintained the counterfeiting of the great Seale to be high Treason and so of the usurpation of the Kings Forts Ports Shipping Castles and his Revenue and the Coyning of money against them We have our warrant by the said statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Seventhly We maintaine that the King is the only supreme govermour in all causes They that his Majesly is to be governed by them Our warrant is the statures of the first of Q. Eliza. Chapter the first and the fifth of Q. Elizabeth the first Eighthly 9. Ed. 4. sol 4. Wee maintaine that the King is King by an inhaerent birth-right by nature by Gods law and by the layâ— of the Land They say his Kingly right is an 〈…〉 Our warrant is the statute of the first of King Jaâ—â—â— Chapter the first And the resolution of all the Judges of England in Calvins case Ninthly We maintain that the politick capacity iâ— not to be severed from the naturall They hold the contrary Our warrant is two flatures viz. â—xilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to posterity that it is damnable detestable and execrable Treason Calvins case pars 7. fol. 11. Tenthly we maintain that who aids the King at home or abroad ought not to be molested or questioned for the same they hold and practise the contrary our warrant is the statute of the eleventh of Henry the seventh Chapter the first Eleventhly We maintain that the King hath power to disassent to any Bill agreed by the two Houses which they deny Our warrant is the Statute of the second of Henry the fift and the practise of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly We maintain that Parliaments ought to be holden in a grave and peaceable manner without â—â—ults They allowed multitudes of the meanest sort of people to come to Westminster to cry for Coll. of Ord. fol. 31. Justice when they could not have their will and keep guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly We maintain that there is no state within this Kingdome but the Kings Majesty and that to adhere to any other State within this Kingdome is high treason our warrant is the Statute of the third of King James Chapter the fourth and the â—â—enty third of Queen Elizabeth Chapter the first Fourteenthly We maintain that to levy a warre to remove Councellours to alter religion or any Law established is high Treason They hold the contrary One warrant is the resolutions of all the judges of England in Queen Elisabeths time and their oracle agrees with the same Fifteenthly We maintain that no man should be imprisoned put out of his Lands but by due course of Law and that no man ought to be adjudged to death but by the Law established the customer of the Realm or by act of Parliament They practise the contrary in London Bristol Kent c. Our warrant is Magna Charta Chapter the twenty ninth the Petition of right the third of King Charles and divers Lawes there mentioned We of the Kings party did and do detest Monopolies and ship money and all the grievances of the people as much as any men living we do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his lawes we love Parliaments if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640 to the tenth of Ianuary 1641 time to punish them being all left to Justice where is the Kings fault The law faith the King can do no wrong 11 pars Cooks Reports Magdalen Colledge Cale that he is medicus Regni pater patriae sponsus regni qui per annlum is espoused to his Realm at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament A succeeding Parliament may repeal them The objection is very weak a Parliament succeeding to that may repeal that repealing Parliament That feare is endlesse and remedilesse for it is the