a memoriall of what was done and entered 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 Recordari facias loquelam c. and yet the County-Court is no Court of Record and so for ancient Demesne Fiâ—â—h Nat Br 13. 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 12 H 4. 23. and so of a Court Baron the Law and custome of England must be preserved 34 H. 6. 49. 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 Seal Sir Giâ—es Mompesson Michel 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 Instit Tit. Parl. p. 23. where the House of Peers condemned Latimer in 50. E. 3. the Kings pardon freed him which shews cleerly that the Kings expresse or implyed assent must of necessity be had to make a Delinquent The Gentleman saith That the Parliament fits or ought to sit by something greater then 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 p. 4. 6. 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 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 Trienniall Parliament and another for a perpetuall 4 E 3. c. 14. if the Houses please to satisfie their desires 36 E. 3. c. 10. how these two Acts agree one with another and with Statute in E. the thirds time 21 Iâ—c the Act of Limitation of Actions cap. 26. where Parliaments are ordained to be holden every yeer and what mischiefs 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 yeers and many other inconveniencies or greater importance is easie to understand How can any man affirm that the two Houses do act now by the Kings Writ which relates to counsell and Treaty with the King 4 pars Instit pa. 14. concerning the King the defence of his Kingdom and of the Church of England there are the three points which it tends to as appears by the Writ They keep their King prisoner at Holdenby 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 defend the Kings Kingdom or their kingdome When by their solemne League and Covenant 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 Cook Deâ—n and Chapter of Norwich 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 controll other Courts of Justice or prevent them from sitting or acting and therefore not the two Houses c. It is true the King cannot controll or prevent his other Courts for that they are his ordinarie Courts or common justice to administer common 〈◊〉 unto all men according to the fixed Laws The Houses make no Court without the King they are no body Coâ—porate without the King nor Parliament without the King they all make one corporate body one Court called the Parliament wherof the King is the head 4 Pars Instit p. 1. and the Court is in the Lords house where the King is present and as a man is no man without a head so the Houses severed from the King as now they are have no power at all and they themselves by levying War against the King and imprisoning of him have made the State for not dissolving adjourning or proroging this Parliament of no effect by the said Acts of their owne they sit to no purpose without his assent to their Bills they will not suffer him to consult with them and treat and reason with them whereby we may discerne what Bills are fit to passe and what not which in all Ages the Kings of this Land have enjoyed as their undoubted Rights and therefore they sit to no purpose by their owne disobedience and fault For the ordinary Courts at Westminster 27 H. 8. c. 24 28. H. 8 11. Dier the Iudges in all those Courts are Iudges by the Kings Patent or Writ otherwise they are no Iudges the Houses can make no Iudges they are no Iudges at all who are made by them the whole and sole power of making Iudges belongs to the King the King cannot controle or prevent his own Iudges from sitting or acting but the Houses he may for they are not the Kings Iudges but the Iudges of the two Houses 2 R 3. 11. In his other Courts the King commits his power to his Iudges by his patent and they are sworne to doe common right to all men and the King is sworne not to let them from so doing the King cannot judge in those Courts nor controule but the King is both Iudge and Controller in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bils Many Lawyers have much to answer to God this Kingdom and to posterity for puzling the people of this Land with such Fancies as the Gentl who wrote the Answer to my Paper and others have published in these Troubles which hath bin none of the least causes of the raysing and continuing of them And so I have done with the first part of his answer A. D. 2. For the Non sequitur in the second Section of the Gent Answer the Antecedent and the Consequent are his own Quem recitas meus est ô Fidentine libellus Sed malè dum recitas incipit esse tuus My words are
his Reports in Calvins case fol. 11 saith thus In the Reign of Edw 2. he Sponcers the Father aâ—d Son 〈…〉 hatchâ—d in their hâ—arts invented this damnable and 〈◊〉 â—pinion that homage aâ— doath of ligeance was more by reasâ—◠〈◊〉 Kings Crâ—wn that is of his politâ—ck capacity then by reason of â—hâ— persâ—n of 〈◊〉 King upon whiâ—h â—pinion they inferred â—hree execrable and 〈…〉 1. Iâ— the King do not demean himself by reason in the right of his Croâ—n his 〈◊〉 are bound by Oath to remove thâ— King 2 Seeing that the King could not be râ—formed 〈◊〉 of 〈◊〉 that ought to be done per aspertee that is by fâ—rce 3. That his lieges be bound to govern in aid of him and in 〈…〉 All whiâ—h were condemned by two Parliaments one in the Reign of Edâ— 2. callâ—d â—xilium Hugonis le Spencer and the other in Anno 1 Edw 3. cap 2. And that the naturall body and politick 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. Eâ—iz Plowdon Com fol 213. by Siâ— Râ—bert Caâ—lin Lord Chief Justice of England 〈…〉 Lord Chief Jusâ—ice of the Common Pâ—ease the Lord Saâ—ders Lord Chief baron of the Exchequer and by the rest oâ— the Juâ—ges viz. 〈…〉 Justice 〈◊〉 Justice Corbet Justice Weston baron 〈…〉 and 〈◊〉 Sergeants 〈…〉 General◠〈◊〉 Atturey of the Turchy 〈◊〉 the learned it man of that age in the knâ—wâ—â—dgâ— of the Law and Cuâ—â—omes of the Reâ—lm 8. The Law in all 〈◊〉 without any 〈◊〉 is and 〈◊〉 been 2 H. â— Maâ—na Chaâ—ta That no Act of Parliament 〈◊〉 the Subjâ—cts of the Lâ—rd without the assent of the King 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-Books are cited either for Person Lands goods or fame No man can shew any fillable letter or line to the contrary in the books of the Law or printed Acts of Parliament in any age in this Land If the vertuall Power be in the Houses there needs no assent of the Kings The stiles of the Acts printed from 9 H. 3. to 1 H. 7. were either The King ordains at this Parliament c. or the King ordaineth by the advice of his Prelates and Barrons 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 Majestie 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 7 H. 7. 14. 12 of H. 7. 20 as the soul to the body and therefore our Law Books call the King the Fountain of Justice and the life of the Law 9. Mercy as well as Justice belongs by the Law of the Land onely to the King 2 H. 4. ca. 22. 4 pars instit 42. This is confessed by Mr. Prinâ— and it is so without any question The King can onely pardon and never more â—ause to have sufficient pardons then in such troublesome times as these Mr. Prinn in his Treatise of the great Seal fol. 17. 27 H. 8. c. 24. 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 H. 8. ca. 24. 10. Queen Elizabeth summoned her first Parliament to be held the 23. of Janna in the first yeer of her Majesties Reign The Lords and Commons assembled by force of the same Writ the 23. day the Queen fell sick and could not appear in her person in Parliament that day and therefore prorogued it untill the 25. of the same moneth of Januarie 3 Eliz. Dier 203. Resolved by all the Judges of England that the Parliament began not the day of the return of the Writ viz the 23. of January when the Lords and Commons appeared but the 25. of the said moneth when the King came in person which sheweth evidently that this vertuall presence is a meer deluding fiction that hath no ground in Law reason or sense They have the King now a Prisoner at Holdenby with guards upon him and yet they govern by the vertuall 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 readie to â—â—stifie with my life and should hold it a great honour to 〈…〉 the honourable anâ— holy Laws of the Land That 〈…〉 save this Land froâ—â—â—â—truction is an Act of Oblivion 〈…〉 Majesties gracious â—â—â—â—all pardon the Soulâ—iers their 〈◊〉 and every man his 〈◊〉 and Truth and Peace established in 〈◊〉 â—â—nd and a favourable regard had to the satisfaction of 〈◊〉 Consciences April 29. 1647. David Jenkins An ANSWER to the Poysonous Seditious Paper of Mr. David Jenkins MR. David Jenkins in his Paper of the 29. of April last layâ—â— most odious charges upon the Parliament and consequently upon all that have adhered to the Parliament in this Warre and lesâ— these his desperate infusions should not work powerfully enough upon the vulgar he being an ancient practiser in the Law and promoted to the title of a Judge he cites Book cases agaâ—nst the two Houses and seems forward to lay down his life in the cause His 1. Argument runs thus The Parliament not having the Kings Writ Patent or Commission cannot do so much as examine any man But the Parliament has not the Kings Writ c. Ergo his minor is confirmed thus If the Kings power remain solely in himself and be not vertually present in the two Houses then they cannot pretend his Writ Pattent or Commission But the Kings power is in himself and not vertually in the two Hâ—uses ergo that the Parliament has no vertuall power he proves thuâ— 1. If the Parliament had in them the Kings vertuall Power they needed not desire the Kings ratification they needed not send any Propositions to him but now they send Propositions ergo this vertuall power is but a meer fiction â— To affiâ—m that the Kings power is separable from his person is by the Law adjudged high Treason but in the Parliament 〈◊〉 the Kings Power is vertually in them then they separate it 〈◊〉 his person Ergo. 3. If none can pardon Felony or Treason except the King â—one has the virtuaâ—l power of the King but none can pardon except the King Ergo 4. If the King be in no condition to govern then he is in no condition to derive virtuall power but c. 5. If none can sit in Parliament but he must first swear that the 〈…〉 the onely Supreame Governor over all Persons
in all Causes then no Member of the Parliament nor the whole Parliament can suppose him or themselves superiour to the King but none can sit in Parliament c. Ergo â— Iâ— no Act of Parliament binde the Subject without the Kings 〈◊〉 then there is no virtuall power in the Parliament without the Kings assent but no Act binds c. Ergo Out of these premises which this grave Gentleman judges to be â—rrefragable he concludes that the Parliament denies the King to be Supreame Governor nay to be any Governor at all in as 〈◊〉 as there is no point of government He sayes but thâ— Parliament for some yeers past have taken to themselves using the Kings name onely to abuse and deceive the people He saies further the Parliament pretends against the King because that he haâ— left the great Counsell and yet the King desires to come to his great Counsell but cannot because he is by them kept 〈◊〉 at Holmby 〈…〉 he saies the Houses are guilty of peâ—jurâ—as well as of the 〈◊〉 the people and rebelling against the King in as much as at the same time they swear him to be onely 〈◊〉 Governor and declare him to be in no condition to govern How easily these things may be answered and refuted let the world see 〈…〉 cannot be denyed but the Parliament sits by the Kings Writ nay if Statute Law be greater then thâ—â— Kings Writ it cannot be denyed but the Parliament 〈◊〉 or oughâ— to 〈◊〉 by something greater then then the Kings 〈◊〉 And if it be confessed that the Parliament sits by the Kings Writ but does not Act by the Kings Writ then it must follow that the Parliament is a void vain Court and sits to no purpose nay it must also follow that the Parliament is of lesse Authority and of lesse use then any other inferiour Court Forasmuch as it is not in the Kings power to controul other Courts or to prevent them from sitting or Acting 2. This is a grosse non sequituâ— the Kings power is in himself Ergo it is not derived to nor does reside virtually in the Parliament For the light of the Sun remains imbodied and unexhausted in the Globe of the Sun at the same time as it is diffused and displayed through all the body of the air and who sees not that the King without emptying himself gives Commissions daily of Oier and Terminer to others which yet he himself can neither frustrate nor elâ—de But for my part I conceive it is a great errour to infer that the Parliament has onely the Kings power because it has the Kings power in it for it seems to me that the Parliament does 〈◊〉 sit and act by concurrent power devoâ—ved both from the King and Kingdom And this in some things is more obvious and apparent then in others For by what power does the Parliament grant Subsedies to the King if onely by the power which the King gives then the King may take Subsedies without any grant from the Parliament and if it be so by a power which the people give to the Parliament then it will follow that the Parliament has a power given both by King and Kingdom 3. The sending Propositions to the King and desâ—ring his concurrence is scarce worth an Answer for Subjects may humbly petition for that which is their strict right and property Nay it may sometimes beseem a superior to prefer a suit to an inferior for matters in themselves due God himself has not utterly disdained to beseech his own miserable impious unworthy creatures besides 't is not our Tenet that the King has no power because he has not all power nor that the King cannot at all promote our happinesse because he has no just claim to procure our ruine 4. We affirm not that the Kings power is separated from his person so as the two Spensers affirmed neither do we frame conclusions out of that separation as the two Spensers did either that the King may be removed or misdemenors or reformed per aspertee or that the Subject is bound to govern in aid of him we onely say that his power is distinguishable from his person and when he himself makes a distinction betwixt them commanding one thing by his Legall Writes Courts and Officers and commanding another thing extraâ—udicially 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 onely say it is not proper to him quarto modo For if the King pardon him which has murdered my son his pardon shall not â—ut me off from my appeal and 't is more unreasonable that the Kings pardon should make a whole State which has suffered remedilesse then any private man So if the King should deny indemnity to those which in the fury of war have done things unjustifiable by the Laws of Peace and thereby keep the wounds of the State from being bound up 't is equiable that an Act of Indemnity should be made forcible another way And if this will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolute in all things else and the Parliament has no power to discharge Delinquenties therefore it has no power in other matters 6 The Parliament has declared the King to be in no condition to govern but this must nor be interpreted rigidly and without a 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 〈◊〉 not hereby insinuated that he is 〈◊〉 oâ— the habit or righâ— of governing 〈…〉 be unqâ—â—â—ified now 〈◊〉 is not 〈◊〉 for the future If he may not do things destructive to the Parliament he is not 〈◊〉 from returning to the Parliament or doing 〈◊〉 to the Parliament This is a frivelous civill and subâ—erfuge 7 We swear that the King is our supreame Governor over all Persons and in all causes but we do not swear that he is above all Law nor above the 〈◊〉 of his people which is the end of the Law and indeed Paramouâ—t to the Law it self Iâ— he be above all Law or lyable to no restâ—aint of ouâ— Law then we are 〈…〉 the French or the Tâ—â—ks aâ—d if he be above the priâ—e end of Law common safety then we are not so 〈…〉 the French or the 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 remedilesly perish when the King pleases to command our throats Besides how acheived the King of England such a Supremacy above all Law and the community it self for whose behoof Law was made If Gods donation be pleaded which is not speciall to him or different from what other Kings may pretend too then to what purpose serve our Laws nay to
what purpose serve the Laws of other Countreys 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 has Mr. Jenkins read where has he found out 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 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 supreame law and that the King has both God and the Law for his Superior But all this is nothing to learned Mr. Jenkins 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 do nothing nor have any virtuall power at all no not to examine Mr. Jenkins nor to do any other thing of like nature though in order to publick justice and safetie I have done and wish Mr. Jenkins would call in and lick up again his black infamous execrable reproaches so filthily vomited out against the Parliament The Reply of Judge Jenkins to Mr. H. P. AFter the said Mr. H. P. hath made a recitall of the Heads of my Vindication he deduceth his Answer unto eight Particulars 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 5 H 4 c. 3. The Court of Pie-Powders Court-Baron Hundred Court 3 H 6. 46. County Court and every other Court of Record or not of Record 19 H 6. 43. hath power to examine upon oath and an examination without Oath 35 H. 6. 5. is a communication onely examination in Law is upon oath There is no Court without a power of triall Sir Anthony Maynes case Cook 5. pars Reports Lit. 2. lib. Sect. 194. 6 H. 4. 1. the House of Commons hath no power to try any offence nor ever practised it by Bill Inditement Information Plaint or Originall to deduce it to triall 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 attain to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit à fine The Writ whereby they are called gives them power Ad faciendum consentiendum 4 pars Instit fol 4. 9. to what to such things Quae ibidem de communi Consilio ordinari contigerint 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 choosing Knights c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peers of the Kingdom for and touching the great concernments of the Common-wealth for the King never fits in the House of Commons and this also is made evident by the Writs to the Prelates Peers Judges and to his Councell at Law the words in their Writs are To appear and attend the Parliament Consilium impensure the one doth consulere the other facere consentire The House of Lords 7 H 6. 28. where the King fits in person assisted by his Lords 1 H 7. 20. Judges Serjeants Atturney Sollicitor Masters of the Chancery 14 E. 3. ca 5. is a Court of Record to many purposes set down in the books of the Law 1 Paâ—s Instit pa. 21. and the Statutes of the Land and that Courts is onely in the House of Lords where the King sits A Court must either be by the Kings Patent Statute Law or by the Common Law Plowd Com. 319. which is common and conâ—â—ant usage the House of Commons hath no Patent to be a Court nor Sâ—â—tute Law to be a Court nor common usage they have no 〈◊〉 Book but since E. 6. time was there ever Fine by the House of Commons eâ—treated into the Exchequeâ— For murther oâ— Felony they can imprison no man much â—esse for Treason the House which cannot do the lesse cannot do the greater Iâ— is ordained 25 E 3 c 4. that no man shall be imprisoned or put out of his Franchise by the King or his Councell 3 Car Petition of Right 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 is Magna Charta cap. 29 expounded and the said Magna Charta and Charta 〈…〉 are declared by the Statute of 25 E 1. 〈◊〉 to be the Common Law of the Land All Judges and Commissioners are to proceed Secundum legem consuetudinem Regni Angliae as appears by all proceedings in all Courts and by all Commissions and therefore the House of Commons by themselves proceeding not by Indictment Presentment 〈◊〉 Originall Writ have no power to imprison men or to put them out of their Franchiâ—e This no way trenches upon the Parliament 4 pars Instit pag 1 for it is in Law no Parliament withouâ— King and both Houses 3 Pars. Instit p. 3. I have onely in my Paper deâ—ivered to Mr. Corbet applyed my self to that Committee 12 H 7. 20. Prince case that they had no power to examine me but I never thought said or wrote that the Parliament had no power to examine me 8 Pars Cook 1 Pars 〈◊〉 p â—59 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 1 H 8 3 but the House of Commons of it self hath no such power Dier 38 H 8 60 For the Lord Cooks relation that the House of Commons have imposed 〈◊〉 1 Pâ—â—s Instit p 19 â— and imprisoned men in Queen Eâ—â—zâ—â—ths time and since Few facts of late time never 〈…〉 power nor Court 4 〈◊〉 â—â—stit ca. Parl. à 〈…〉 is no good 〈◊〉 for the words of the Statute of 6 H 8 c. 16 that a â—icence to depâ—â—t from the House or Commons for any Member thereof is to be entred of Record in the Book or 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 Laws Lex aliud tractans nil probat the word Record there mentioned is onely
that the King is not vertually in the two houses at Westminster to enable them to grant pardons for that whole and sole power by the Law belongs to the King My Paper hath no such thing as that the KINGS power cannot be derived to others or the vertue of his power 27 H. c. 24. For His power and the vertue of His power is in all Patents to his Iudges in Charters to Corporations in Commissions of all sorts and in the Parliament assembled by force of his Writ of Summons so long as they obey him but when they renounce that power and claime it not from the King and declare to the Kingdome that hee is not in condition to governe and imprison him and usurpe to themselves all Royall Authority as the two Houses now doe no reasonable man can affirme that they act by the power of their Prisoner who hath no power to give them that by force of Arms take all the power to themselves The Gentl. saith the King grants Commissions daily of Oyer and Terminer 4 E 4 39. which hee cannot frustrate nor elude 5 E. 44. The King may revoke and discharge the Commission by his Writ 1 E â— Dyâ—r 165. as hee may remove all Judges and place other men in their roome and many Kings death determines all the Iudges Parents of Westminster-Hall 1 Mar. Broâ—ks case 447. Commissions of Oyer and Terminer c. and so hee might dissolve both Houses in all times by his Writ under the Great Scale untill that by this Parliament by his owne concession the King of his goodnesse hath secluded himselfe which goodnes hath bin full ill requiâ—ed The Gentl. affirmes That the power the Parliament hath is concurrent from the King and Kingdome which he conceives is proved by the Grant of Subsidies to the King by the Parliament The mistaking of this word Parliament hath beene mischievous in these times to this Land 4 Pars instit p. 1. and it is affectedly mistaken which makes the sinne the greater for the two Houses are not the Parliament as before is declared and at this time so to inculcate it when all men know that of the 120. Peeres of the Kingdom who were temporall Peeres before the troubles there are not not above 30. in the Lords house and in the house of Commons about 200. of the prime Gent. of the Kingdom left the House and adhered to his Majesty who is imprisoned by them shews no such candor as to be desired It is true 25 Eliz. 1. Confirmatio chartarum cap. 6. that no Tallage can be layd upon the People of this Land but by their consent in Parliament as appeareth by the Lawes mentioned in the margent but you shall finde in Mr. Seldens learned Book 24 Eli. 1. cap. 1. de Tallagio non concedendo called Mare Clausum a number of Presidents in Henry the thirds time for Ship-money justly condemned this Parliament to which his Majesty assented and in truth that Ship-money was condemned before by the said two Statutes of 25. E. 1. 34. E. 1. de Tallagio non concedendo Dane-gelt Englitery and many grievous burthens were layd upon the people and born untill that memorable Princes time But I am of opinion that the Common Law of the Land did alwayes restraine Kings from all Subsidies and Tallages but by consent in Parliament which doth appeare by Magna Charta the last chap. where the Prelates Lords and Comminalty gave the King the fifteenth part of their moveables In truth it is no manner of consequence because the King cannot take what he pleaseth of the subjects goods that therefore they have a concurrent power in Parliament there have bin many Parliaments and no Subsidies granted Parliaments may be without Subsidies but Subsidies cannot be without Parliaments of ancient time Parliaments rarely granted any unlesse it were in the time of forraine Wars and in my time Q. E. refused a Subsidie granted in Parliament and in the Parliament of 1. Jac. none were granted The Gent. should make a conscience of blinding the people with such untrue colours to the ruine of King and people A. D. 3. The Gent. affirms That the sending Propositions to the King and desiring his concurrence is scarce worth an answer for Subjects may humbly petition for that which is their strict right and property c. The Propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the Propositions That they have a strict right or property to any on of these Propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right and property to lay upon the people what Taxes they shal judg meet To pardon all treasons c. that is one of their Propositions Have they a strict right and property to pardon themselves and so for all the rest of their Propositions These Propositions have been Voted by both Houses 12 H. 7. 20 the Kings assent they being drawne into Bills makes them Acts of Parliament 1 Iac. c. 1. Hath the King no right to assent or dis-assent 1 Car. c. 7. Was the sending but a Complement All our Law-bookes and Statutes speak otherwise This Gentl. and others must give an account one time or other for such delusions put upon the people A. D. 4. The Gent. saith They affirme not that the Kings power is separated from his person so as the two Spencers affirmed c. His Majesties person is now at Holnby under their Guards have they not severed his power from him when by no power they have left him he can have two of his Chaplaines who have not taken their Covenant to attend him for the exercise of his Conscience For the three Conclusions of the Spencers 15 Ed. 2. Exilium Hugonis do not the two Houses act every of them They say his Majesty hath broken his trust touching the government of his people They have raised Armies to take him 1 E 3. c. 2. Calv. case 7 Pars Reports 11. they have taken him and imprisoned him they govern themselves they make Laws impose Taxes make Iudges Sheriffes and take upon them omnia insignia summae potestatis Is not this to remove the King for misdemeanours to reforme per aspertè to governe in aide of him the three conclusions of the Spencers Doe they think the good people of England are becom stupid and will not at length see these things The Gentl. saith Plowd 4. E. 213. the Kings power and his person are indivisible they doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Courts and Officicers when they counterfeit the Great Seale and seale Writs with the same make Iudges themselves Courts and Officers by their own Ordinances against his consent declared under his true
Great Seale of England not by word of mouth letters or ministers onely their Seale is obeyed their own Writs their own Iudges their owne Courts their own Officers and not the Kings The time will come when such strange actions and discourses will be lamented A. D. 5. The Gentl. goes on Stanfor Pleas. 99. 27. H. 8. c. 24. Dier 163. Wee take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo c. What doe you meane by quarto modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the bookes of the Law to this purpose collected by that Reverend and learned Iudge Stanford from all antiquity to his time who dyed in the last yeare of King Philip and Queene Maries Reigne you shall find this a truth undenyable and this power was never questioned in any age in any book by any untill this time that every thing is put to the question You Gentlemen who professe the Law and maintaine the party against the King return at length and bring not so much scandall upon the Law which preserves all by publishing such incredible things We hold only what the Law holds 1 Pars. Instit p. 44. Plowd 3. Eliz. 236 237. the Kings Prerogative and the Subjects Liberty are determined and bounded and measured by the written Law what they are we do not hold the King to have any more power neither doth His Majesty claime any other but what the Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers do now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an act of Parliament made by the King Lords and Commons that will secure them and let this Army remember their executed fellow Souldiers And the Law was alwayes so taken by all men untill these troubles that have begot Monsters of Opinions A. D. 6. The Gentl. sayes The Parliament hath declared the King to be in no condition to Governe c. There is no end of your distinctions I and you profess the Law shew me Law for your distinctions or letter syllable or line in any age in the Bookes of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz. when the two Houses will suffer him the Law saith thus Vbi lex non distinguit non est distinguendum Hee sayes The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contray the whole City knowes the contrary Noâ— juris consulti sumus sacerdotes as Justinian the Emperour hath it in the first Book of his Institutions and therefore knowledge and truth should come from our lips Worthy and ingenious men will remember and reflect upon that passage of that good and wise man Seneca Non quaitur sed qua eundum follow not the rayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seeke it in time A D. 7. The Gentl. sayes We sweare that the King is our supreame Governor over all persons and in all causes c. Why hath he left out the word only for the oath the Members now take is that KING Charles is now the only and supreme Governour in all causes 5 Eliz. c. 1. Cawdreys case 5 pars fol. 1. over all persons and yet they keep their only Supreme Governour now in prison and act now in Parliament by vertue of their Prisoners Writ and by a concurrent power in this Parliament and by their own strict right and property as the Gentl. affirmes in his answer these things agree well with their Oath This Oath is allowed by the Common Law of the Land that the King is the only Supreme Governour in all causes over all persons this Oath is taken now in the Parliament time by all the Members of the House of Commons and is required by the Law to bee taken in all Parliaments otherwise they have no power nor colour to meddle with the publike affaires This Oath being taken in Parliament that the King is the only and Supreme Governour in all causes then it followes in Parliament causes ever all persons then over the two Houses let them keep this Oath and we shall bee sure of peace in the Land and good Lawyers ought to desire peace both for the publike good and their private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes We do not sweare that the King is above all Law nor above the safety of his people neither doe we so sweare but His Majesty and we will sweare the contrary and have sworne and have made good and will by Gods grace make good our Oath to the world that the King is not above the Law nor above the safety of his people the Law and the safety of his people are his safety his honour and his strength A D. 8. The Gentl. concludes That Acts of Parliament are not formally binding nor compleat without the Kings assent yet the Houses have a virtuall power without the Kings particular assent to doe things in order to publike Justice and safety viz. In setting up the Excise in raising and maintaining of Armies in taxing the people at pleawith fifth and twentieth part fifty Subsidies Sequestrations Loâ—nes Compositions imprisoning the King abolishing the Common-Prayer-Book selling the Churches Lands c. all these are in order to publike Iustice and safety Mr. H. P. you are of my profession I beseech you for the good of your Country for the Honour of our Science perswade your selfe and others as much as in you lyes to believe and follow the monition and Councell of that memorable reverend and profoundly Learned in the Lawes and Customs of the Land the Lord Coke who writes as becomes a great and a learned Iudge of the Law a person much magnified by the two Houses in these words Peruse over all Bookes 3 Pars Inst p. 36. Records and Histories and you shall finde a Principle in Law a Rule in Reason and a tryall in Experience that Treason doth ever perduce fatall and finall destruction to the offender and never attaines to the desired end two incidents inseperable thereunto and therefore let all men abandon it as the poysonous bait of the devill and follow the Precept in holy Scripture SERVE GOD HONOVR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS CONCLUSION I Say againe that without an Act of Oblivion a Gracious generall pardon from his Majesty the Arreares of the Souldiers payd a favourable regard had to tender Consciences there will bee neither Truth nor Peace in this Land nor any man secure of any thing he hath The End