Soveraigne Lord at all seasons when need shall be Here the supreame power in the time of Parliament by both Houses is declared to belong to the King At the beginning of every Parliament all Armes are 7. Ed. 2.4 pars instit 14. or ought to be forbidden to be borne in London Westminster or the Subburbs This condemnes the multitudes comming to Westminster and the Guards of armed men All who held by Knights service 1 Edw. 2. de Militibus and had twenty pounds per annum were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued constantly in all Kings times but at this Parliament 3. November 1640. The King out of his grace discharged this duty which proves that the power of warre and preparation thereto belongs not to the two Houses but only to the King The two Spencers in Edw. 2. Edw. 3. Caâ—vins Case Cookâ—e 7. fol. 11. time hatched to cover their Treason this damnable and damned opinion viz That Ligeance was more by reason of the Kings politick capacity then of his person upon which they inferred these execrable and detestable consequences First if the King demeaned not himselfe by reason in the right of his Crowne his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suit of Law it was to be done by force Thirdly that his Lieges be bound to governe in default of him All which tenets were condemned by two Parliaments the one called exilium Hugonis in Ed. 2. time the other by 1. Edw. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute the Artiles are extant in the booke called vetera Statuta The separation of the Kings person from his power is the principall Article condemned and yet all these three damnable detestable and execrable consequents are the grounds whereupon this present time relies and the principles whereupon the two houses found their cause The Villeine of a Lord in the presence of the King cannot be seized â—â—â—nden com 322. â—y ass pl. 49 for the presence of the King is a protection for that time to him This shewes what reverence the Law gives to the person of a King Regis 33 Ed. 3. â—yde de roy 203 Fitz 30 H. 7.16 sacro oleo uncti sunt capaâ—es spiritualis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote haâ—et Ecclesiasticam spiritualem jurisdictionem This shewes the Kings power in Ecclesiasticall Causes The Lands of the King is called in Law Patromoniâ—n sacrum Com. Sur. Littl Sect. 4. The Houses should not have meddled with that sacred Patromony 3 Ed. 3.19 The King hath no Peere in his Land and cannot be judged Ergo the two Houses are not above him The Parliament 15. Ed. 3. was repealed for that is was against the Kings Lawes and prerogative 4 part institâ— fol. 25. This shewes cleerely the Propositions sent to Newcastle ought not to have beene presented to his Majesty For that they are contrary to the Lawes and his Prerogative The Lords and Commons cannot assent in Parliament to any thing that tends to the dis-inherifion of the King and his Crowne 4 Part Cooke inâ—â—it fol. 14. 42. E. 3. to which they are sworne This condemnes the said Propositions likewise To depose the King Parliamenâ— Rol. num 7. Rex 〈◊〉 suetudâ— Parâ—amenti to imprison him untill he assent to certaine dedemands a warre to alter the Religion established by Law or any other Law or to remove Councellors to hold a Castle or Fort against the King are offences against that Law declared to be treason by the resolution herein after mentioned by that Law men are bound to ayd the King when warre is levied against him in his Realme 25 Ed. 3. cap. 2. King in his Statute must be intended in his naturall body and person that only can dye for to compasse his death and declare it by overt Act is declared thereby treason to incounter in fight such as come to ayd the King in his warres is treason Compassing of the Qâ—â—ens death of the Kings Eldest Sonne to coyne his money to counterfeit his Great-Seale to levy Warre against him to adhere to such as shall so doe are declared by that Act to be high treason This Statute cannot referre to the King in his politique capacity but to his naturall which is inseperable from the politick for a body politick can have neither Wife 〈◊〉 13. nor Childe nor levy Warre nor doe any Act but by the operation of the naturall body A Corporation or body politick hath no soule or life but is a fiction of the Law and the Statute meant not â—â—ctitious persons but the body naturall conjoned with the politique which are inseperable The clause in that Act that no man should sue for grace or pardon for any offence condemned or forfeiture given by that Act 21 Ed. 4.14 â— 2.11 an was repealed by a subsequent Act in 21. R. â— holden unreasonable without example and against the Law and custome of the Parliament This condemnes the Proposition for disabling the King to Pardon 4 pars instit fol. 42. 4. Pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to which the King consented and so a perfect Act yet Note the Army then about the Towne Note that that Law is a-against private persons and by the 3. cap. thereof the treasons there declared are declared to be new treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1 H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. Ed. cap. 5.16 R. 2. cap. 5. H. 4. The Regality of the Crowne of England is immediately subject to God and to none other Plaine words shewing where the supreame power is The Commission of Array is in force and no other Commission Rot. Parlm 5. H. 4. numb 24. an Act not printed this Act was repealed by 4. and 5. P. M cap. 2. this repealed by the Act of 1 Iacobi and so it is of force at this day for the repealing Statute is repealed 4. pars instituâ— fol. 51. 125 published fithence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the commentaries upon Magna Charta Sir Edward Cooke A booke alowed by Sir Na Brent called the reason of the War fol. 65. by their party is holden for the Oracle of the Law who wrote the said fourth part in a calme and quiet time and I may say when there was no need to defend the authority of the Commission of Array For that objection that that Commission leaves power to the
viz. Rex vic Wilts Saltem Quia Nos de avisamento assensia consilii nri pro quibus arduis urgentib negotiis nos statune defensionem Regni nri Aug. Eccles Anglie concernentibus quoddam Parliamentum nrum apud B. teneri ordinavimus ibid. cum Prelatis Magnatib proceribus dicti Regni nri Colliquium habere tractatum â—ibl precipimus firmiter injungendo quod facta Proclamatione in prox Comitatu tuo post receptionem ejusd Brevis duos Milites gladiis cinctos c. eligi faceas ad faciendum consentiendum hiis quae tunc ibidem de Commâ—â—â—i Concilio uro 4 pars Inst 241. Angl. foventi Deo contigerit ordinari super Negotiis ante dictis ita quod pro defectu potestatis bujusmodi seu propter improvidam electionem Mileum Civium Burgensium praed dicta negotia ura infect a non remanerent The King is Principium a pars Instit fol. 3. 4 capâ—â— finis Parliamenti the body makes not the head nor that which is posterior that which is prior consilium non est Preceptum consiliarii non sunt Preceptoris for Counsell to compell a consent hath not been heard of to this time in any age and the House of Commons by the Writ are not called ad co silium the Writs to the twelve Judges Kings Counsell twelve Masters of the Chancery are consilium impensuri and so of the Peeres The Writs for the Comminalty Ad faciendum consentiendum Which shewes what power the representative body hath they have not power to give â—n Oath neither doe they claime it The King at all times The Oath of the Justices 18 of E. 3. among Statutes of that yeare when there is no Parliament and in Parliament is assisted with the advice of the Judges of the Law 12 in number for England at least hath two Sergeants when fewest an Attorney and Solicitour twelve Masters of the Chancery his Councell of State consisting of some great Prelates and other great Personages versed in State affaires when they are fewest to the number of twelve All these persons are alwales of great substance which is not preserved but by the keeping of the Law The Prelates versed in divine Law the other Grandees in affaires of State and managery of Government The Judges Kings Sergeants Attorney Solicitour and Masters of the Chancery versed in the Law and Customes of the Realme All sworne to serve the King and his people justly and truly the King is also sworne to observe the Lawes and the Judges have in their Oath a clause that they shall doe common right to the Kings people according to the established Lawes notwithstanding any command of the King to the contrary under the Great Seale or otherwise the people are safe by the Lawes in force without any new The Law finding the Kings of this Realme assisted with so many great men of Conscience Honour and skill in the rule of Common-wealth knowledge of the Lawes and bound by the high and holy bond of an Oath upon the Evangelists settles among other powers upon the King a power to refuse any Bill agreed upon by both Houses and power to pardon all offences to passe any Grants in his Minority there are many great persons living hold many a thousand pounds a yeare by patents from Edward the sixth passed when he was but ten yeares of age not to be bound to any Law to his prejudice whereby he doth not binde himselfe power of war and peace coyning of Mony making all Officers c. The Law for the reasons aforesaid hath approved these powers to be unquestionable in the King and all Kings have enjoyed them till 3 Nov. 1640. It will be said notwithstanding all this fence about the Lawes the Lawes have been violated and therefore the said powers must not hold the two Houses will remedy this The answer to this is evident There is no time past nor time present nor will there be time to come so long as men manage the Law but the Lawes will be broken more or lesse as appeares by the story of every age All the pretended violations of this time were remedied by Acts to which the King consented before his departure 10. Jan. 1641. being then driven away by Tumults And the Houses for a yeare and almost three Moneths from 3 Nov. 1640. to 10 Jan. 1641. as aforesaid being a yeare and almost three Moneths had time and liberty to question all those persons who are either causes or instruments of the violation of any of the Lawes Examine how both Houses remedied them in former times First touching Religion what hath been done this way Both Houses in Henry the eights time tendred to him a Bill to be passed called commonly the Bill of the six Articles this was conceived by them to be a just and a necessary Bill Had not Henry the eight done well to have refused the passing of this Bill Both Houses tendred a Bill to him to take the reading of the Scriptures from most of the Laity Had not King Henry the eight deserved much praise to reject this Bill In Queene Maries time both Houses exhibited a Bill to her to introduce the Popes power and the Roman Religion had not Queene Mary done well to have refused this Bill Many such instances may be given The two Houses now at westminster I am sure will not deny but the refusall of such Bills have beene just the King being assisted as aforesaid and why not so in these times For the Civill Government what a Rill did both Houses present to Richard the third to make good his Title to the Crowne had it not beene great honour to him to have rejected it What Bills were exhibited to Henry the eight by both Houses for bastardizing of his Daughteâ— Elizabeth a Queene of renowned memory to settle the Crowne of this Realme for default of Issue of his body upon such persons as he should declare by his Letters Patents or his last Will and many more of the like had not this refusall of passing such Bil's magnified his vertue and rendered him to Posterity in a different Character from what he now hath And by the experience of all times and the consideration of humane frailty this conclusion is manifestly deduced that it is not possible to keep men at all times be they the Houses or the King and his Councell but there will be sometimes some deviation from the Lawes and therefore the constant and certaine powers fixed by the ancient Law must not be made voyd and the Kings Ministers the Lawes doe punish where the Law is transgressed and they onely ought to suffer for the same In this Parliament the Houses exhibited a Bill to take away the suffrages of Bishops in the upper House of Parliament and have sithence agreed there shall be no more Bishops at all might not the King if he had so pleased have answered this Bill with Le
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
the practise of all times and the Custome of the Realâ—â—e Sixthly we maintained the coâ—â—terâ—eiting of the great Sealâ— to be high Treason and so of the usurpation of the Kings forts Do is Shipping Casties and his Revenue and the coâ—â—ing of Money against them We have our warrantâ— 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 onely supreme Governour in all causes They that his Majesty is to be governed by them Our warrant is the Statutes of the first of Queene Elizabeth Chapter the first and the fifth of Queene Elizabeth the first Eightly We maintaine that the King is King by an inherent birth-right 9 Ed. 4. fol. â— by nature by Gods Law and by the Law of the Land They say his Kingly right is an Office upon trust Our warrant is the Statute of the first of King James Chapter the first And the resolution of all the Judges of England in Calvins Case Ninthly wee maintaine that the politick capacity is not to be severed from the naturall They hold the contrary Our warrant is two Statutes viz. exilium 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 yeers 7. fol. 11. Tenthly wee maintaine that who â—â—des the King at home or abroâ—d 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 wee maintaine that the King hiâ—h power to disassent to any Bill agreed by the two Honses which they deny Our warrant is the Statute of the second of Henry the fifth and the practice of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly wee maintaine that Parliaments ought to be holden in a grave and peaceable manner without tumults 3. They allowed multitudes of the meanest sort of the people to come to Westminster to cry for justice when they could not have their will Coll. of Ord. fol. 31. and keepe guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly wee maintaine that there is no State withâ—n 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 twenty third of Queene Elizabeth Chapter the first Fourteenthly wee maintaine that to â—evy a waâ—â—e to remove Couâ—sellours to aâ—ter Religion or any Land established is high Treason They hold the contrary Our warrant is the resolutions of all the Judges of England in Queene Eliznbeths time and their Oracle agrees with the same Fifteenthly wee maintaine that no man should be impusoned put out of his Lands but by due coâ—rse of Law and that no man ought to be adjadged to death but by the Law established the Câ—â—stames of the â—â—â—â—me or by Act of Paâ—â—tement They practise the contrary in London Bristol Keâ—t c. Our warrant is Magna Chanta Chapter the twenty ninth the Pâ—â—ition of Right the third of King Charles and divers Lawes there mentioned Wee of the Kings party did and do detest Monopolies and Ship-money and all the grievanâ—es of the people as muâ—h as any men living wee do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his Lawes wee love Parliamenss if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640. to the tenth of January 1641. time to punish them being all left to justice Where is the Kingâ— fault The Law saith the Kings can do no Wrong 11. pars Cooks Reports Magdalen Colledge Case that he is medicus Regni pater patriae sponsus Regni qui per annulum is espoused to his Realme at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law 〈◊〉 matter is pretended that the 〈◊〉 are not sure to enjoy the Acts passed this Parllament A succeeding Parliament may repeale them The objection is very weake a Parliament succeeding to that may repeale that repealing Parliament That â—eare is endlesse and remedilesse for it is the essence of Parliaments being compleat and as they ought to be of Head and all the Members to have power over Parliaments before Parliaments are as the times are If a turbulent faction prevailes the Parliaments are wicked as appeares by the examples recited before of extreme wicked Parliaments if the times be sober and modest prudent and not biassed the Parliaments are right good and honourable and they are good medicines and salves but in this Parliament excessit medicina mâ—dum In this cause and warre betweene the Kings Majesty and the two Houses at Westmiester what guide had the Subjects of the Land to direct them but the Lawes What meanes could they use to discerne what to follow what to avoid but the Lawes The King declares it Treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this warre The Subjects for a great and considerable part of them Treason being such a crime as forfeits life and estate also renders a mans Posterity â—ase beggerly and infamous looke upon the Laws and finde the Letter oâ— tho Law requâ—res them to a 〈◊〉 the King as before is manifested was ever Subject criminally punisht in any age or Nation for his pursuit of what the Letter of the Law commands The Subjects of the Kingdome finde the distinction and interpretation now put upon the Lawes of Abstractum Concretum Poweâ— and Person body politick and naturall personall presence and virtuall to have beene condemned by the Law and so the Kings Party had both the Letter of the Law and the interpretation of the Letter cleared to their judgments whereby they might evidently perceive what side to adhere to what satisfaction could modest peaceable and loyall men more desire A verbo legis in criminâ—bus poenis non est recedentum hath been an approved maxime of Law in all ages and times Coll. of Ordinances 777. If the King be King and remaine in his Kingly Office as they call it then all the said Lawes are against them without colour they say the said Lawes relate to him in his Office they cannot say otherwise they make Commissions and Pardons in the Kings name and the person of the King and his body politick cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1. 1 Eliz. cap. 1. And the Members of both Houses have sworne
the Reformers and Martyrs and practised in the time of four Princes Fifthly these Propositions taking away from his Majesty all his power by Land and Sea rob him of that which all his Ancestors Kings of this Realme have enjoyed That enjoyment and usage makes the Law and a right by the same to his Majesty They are against their owne Protestation made this Parliament viz. to maintain his Royall Person Honour and Estate They are against their Covenant which doth say that they will not diâ—inish his just power and Greatnesse For these reasons his Majesty hath lest them and as is beleeved will refuse to agree to the said Propositions as by the fundamentall Law of the Land he may having a Negative Voice to any Bils proposed The result of all is upon the whole matter That the King thus leaving of the Houses and his deniall to passe the said Propositions are so far from making him a Tyrant or not in a condition to governe at the present that thereby he is rendred a just Magnanimous and pious Prince so that by this it appeares clearely to whom the Miseries of these times are to be imputed The remedy for all is an Act of Oblivion and a Generall Pardon God save the King DAVID JENKINS now Prisoner in the Tower 28 Aprilis 1647. The Vindication of Iudge Jenkins Prisoner in the Tower the 29. of April 1647. I Was convened upon Saturday the 10 of this moneth of Aprill before a Committee of the House of Commons wherein Master Coâ—bet had the Chaire and I was there to be examined upon some questions then to be propounded to me to which questions I refused to give any other answer then that which wâ—t set downe in a paper I then delivered to the said Mr. Corbet which followeth in these words Gentlemen I stand committed by the House of Commons for High Treason for not acknowledging nor obeying the power of the two Ponses by adhering to the King in this warre I deny this to be Treason for the supreame and onely power by the Lawes of this Land is in the King If I should submit to any examination derived from your vpwir which by the Negative Oath stands in opposition to the Kings power I should confesse the power to be in you and so condemne my selfe for a Traitour which I neither ought nor will do I am sworne to obey the King and the Lawes of the Land you have not power to examine me by those Lawes but by the Kings writ Patent or Commission if you can produce either thereof I will answer the questions you shall propound otherwiss I cannot answer thereto without the breach of my Oath and the violation of the Lawes which I will not do to save my life You your selves all of you this Parliament hive sworne that the King is our onely and supreame Governour your Protestation your Vow and Covenant your solemne League and Covenant your Declarations all of them publisht to the Kingdome that your scope is the maintenance of the Lawes those Lawes are and must be derived to us and enlivened by the onely supreame Governour the Fountaine of Iustice and the life of the Law the King The Parliaments are called by his writs the Iudges sit by his Patents so of all other Dâ—cers the Cities aud â—ownes corporate governe by the Kings Charters and therefore since by the Law I cannot be examinâ—b by you without a power veriveâ— by his Mâ—jesty I neither can nor will nor ougte you to examine me upon any questions But if as private Gentlemen you shall be pleased to 〈◊〉 me any questions I shall really and truely answer evâ—ry such question as you shall demand April 10. 1647. David Jenkins This Paper hath beene mis-represented to the good people of this City by a printed one stilling it my Recantation which I owne not and besides is in it selfe repugnant just like these times the Body fals out with the Head To vindicate my selfe from that Recantation and to publish to the world the realty of the Paper then delivered to Mr. Corbâ—t and the matter therein contained I have published this ensuing discourse No person whoâ— hath committed Treason Mutter 〈◊〉 â—elony hath any assurance at all for so much as one houre of life Lands or Goods without the Kings grâ—tions pardon 27. Hen. 8. cap. 24. The King is not virtually in the two Houses at VVestminster whereby they may give any assurance at all to any person in any thing for any such offence 1. The House of Commons have beelarâ—d to the Kingdome in their Declaration of the 28 of November last to the â—cots Papers p. 8. That the King at this time is not in a condition to goverâ—e No person or thing can derive a vertue to other men or things which it selfe hath not and therefore it is impossible that they should have a vertue from the King to govern which they declare he hath not himselfe to give 2 The Law of the Land is 5 Elizab. cap. 1. That no person in any Parliament hath a vayce in the House of Commons but that he stands a pâ—rson to all intents and purposes as if he had uevâ—r boeu electâ—d or returned if before he sit in the Hause he take not hâ—s Datâ— upon the holy Evangel sts that the Kings Majesty is the onely ond supreame Governour over all persons in all Canses All the Members of the said House have taken it and at all times as they are returned do take it otherwise they have no colour to intermeddle with the publick Affaires How doth this Solemne and Legall Oath agree with their said Declaration That the King is in no condition to govern 〈◊〉 By the one it is sworne he is the only supreme Governour by the other that he is not in a condition to governe 3. The Oath is not that the King was or ought to be or had been before he was seduced by ill Councell our onely and supreame Governour in all Causes over all persons but in the present tense that he iâ— on t only and supream Governont at this present in all causes and over all persons So they the same persons swear one thing and declare to the Kingdome the contrary of the same thing at the same time in that which concerneth the weale of all this Nation 4 The Ministers in the Pulpits do not say what they swear in the House of Commons Who ever heard fiâ—hence this unnaturall Warre any of their Presbyters attribute that to his Majesty which they sweare The reason is their Oath is taken at westminster amongst themselves that which their Ministers pray and preach goes amongst the people To tell the people that the King is now their only and supreame Governour in all Causes is contrary to that the Houses doe now practise and to all they act and maintaine They the two Houses forsooth are the only and supreame Governours in default of the King for that he hath lest his great Councell and
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
7 Ob. as King is present in his Parliament as well as in all other his Courts of Justice howbeit he is not there In his other Courts of Justice he hath no voyce Sol. he is none of the Judges in the Parliament he hath if his presence be not necessary his voyce is not nor his assent The originall prime legislative power of making Lawes 8 Ob. Soveraigne power of Parliaments 4â— 44 Sol. to binde the Subjects and their posterity rests not in the King but in the Kingdome and Parliament which represents it Master Prinne in the same lease affirmes and truly that the Kings assent is generally requisite to passe Lawes and ratifie them 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 bindes 9 Ob. therefore the major part in Parliament and so of by Lawes The Corporation is so bound Sol. either by the Kings Charters or by prescription which sometimes had the Kings concession but prescription and Law and practise alwaies 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. binde rightfull Kings g o What is this to prove the two Houses power only which is the question Sol. 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 9 Ed. 4. and such being Traytours and Rebells to the Regent King having renounced the true King when the lawfull King is restored 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 jure for all Kings are bound and sworne to observe the Lawes A King dyes without Heire 12 Ob. is an Infant non compos mentis c. the two Houses may establish Lawes g o There is no Inter-regnum in England Sol. as appeares by all our Bookes of Law and therefore the dying without Heire is a vaine supposition and by their principle he is considerable in his politick capacity which cannot dye at all The Protectour assisted by the Councell of the King at Law his twelve Judges the Councell of State his Attorney Solicitor and two Sergeants at Law his twelve Masters of the Chancery hath in the Kings behalfe and ever had a Negative Voyce but what is this to the present question We have a King of full age of grear wisdome and judgement the power of the two Houses in such a case to be over the King cannot be showne The King cannot disâ—assent to publique and necessary Bills for the common good 13 Ob. g o Nor ever did good King Sol. but who shall be judge whether they be publique and necessary 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 Majesty and Councell of State his twelve Judges his Sergeants Attorney and Solicitor twelve Masters of the Chancery should judge of the conveniency and benefit of such Bills for the publick 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 been elective 14 Ob. and the King by his Coronation Oath is bound to maintaine justas leges consuetudines quas vulgas elegerit g o Popery hath been in the Kingdome Sol. and therefore to continue it still will not be taken for a good argument when things are setled for many ages to looke 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 Lawes 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 â— Ed. 4. c. 1 are Kings de facto but not de jure as appeares by the Acts of Parliament declaring them so and by all our Law-bookes and the fundamentall constitution of the Land Regall power is hereditary and not elective For the words vulgus elegerit if vulgus be applyed to the House of Commons 1 Hen 7. they of themselves can make no Lawes The Peeres were never yet termed vulgus but allowing they be so called the Lawes to be made be just and who is fit to judge thereof is before made evident Customes cannot referre to future time 15 Ob. and both are coupled Lawes and Customes Princes have been deposed and may be by the two Houses g o The deposers were Traytours Sol. as appeares by the resolution of all the Judges of England Coke Chap. Treason in the second part of the Institutes And never was King deposed but in tumultuous and mad times and by the power of Armies and they who were to be the succeeding Kings in the head of them as Edward the third and Henry the fourth The appeale to the Parliament for errours in Judgements in all Courts is frepuent 16 Ob. g o This is onely to the House of Lords Sol. and that is not the Parliament the House of Commons have nothing to doe therewith and in the House of Peeres if a Writ of Errour be brought to reverse any judgement there is first a Petition to the King for the allowance thereof and the reason of the Law in this case is for that the Judges of the Land all of them the Kings Councell and twelve Masters of the Chancery assist there by whose advice erronious judgements are redressed The Parliaments have determined of the rights of Kings 17 Ob. as in Henry the sixts time and others and Parliaments have bound the succession of Kings as appeares by the Statute of the thirteenth of Queene Elizabeth Chapter the first And the discent of the Crowne is guided rather by a Parliamentary Title then by common Law g o If this objection be true Sol. that the Title to the Crowne is by Parliament then we had no Usurpers for they all had Parliaments to backe them yea Richard the third that Monster All our Bookes of Law say they have the Crowne by discent and the Statutes of the Land declare that they have the same by inherent birth-right And the Statute of the thirteenth of Elizabeth the first Chapter was made to secure Queene Elizabeth against the Queene of Scots then in the Kingdome clayming the Crowne of
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 Kingdom involved I conceived I was bound in duty and conscience faithfully and truly to set down what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Armie by the Law of the Land is apparent to all men 25 â—d 3. c. 21. 2 R. 2. c. 3. â— H. 4. c. 10. 1 2. Th. 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 very words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and his Parliament shall declare otherwise 3 Pars inst p. 22. 2 pars instit pag. 47 48. 4 pars instiâ— p. 23.48.29 3 pars instit cap. Treason p. 9 10 12. they are the very words of the Law King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason than there is declared as appeares by the Lord Cook in the places cited in the Margin A Law book published by order of the House of ComoÌ„ns this Parliament as appears in the last leafe of the 2. part of the Institutes published likewise by their Order The Resolutions of all the Iudges of England upon the said Statute of the 25 Edward 3. 〈◊〉 5. Iohn the Sollicitor in his speech upon the Araignment of the Flarle of Strafford Printed by order of the House of Commons .7 13. as appeares in the said third part of the Institutes Chap. High-Treason have been that to imprison the King untill hee 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 Edw. 3. c. p. 2. must be understood of the Kings naturall person for that person can only die have a Wife have a Son or be imprisoned The Priviledge of Parliament protects no man from treason or felony 4 pars insti c. Parl. p. 25â— 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 Hen. 7. c. 1. doth by expresse words free all persons who adhere to the King 11 H. 7. c. 1. The Army by an Act of Indemnity free themselyes from all those dangers Stamfo d. l. 2. fol. 99. 18 Ed. 3. Statutes at larg 144. 20 Ed. 3. c. 1. 11 Râ—â— 2. c. 10. 4 pars instit pag. 23.48.29 which an Ordinance can no more do than repealé 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 thâ— 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 an 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 1. Their Judges are sworne to doe justice according to the Law of the Land 3 Pars inst p. 21. 2 pars inst 47.48 1 pars inst 19â— Princes case 8 reports 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 believe they will perjure themselves so palpably and visibly in the eye of the World 2. All tryals for treasons felonies robberies Magna Charta cap. 19. 25 Ed. 3. c. 4. 28 H. 3. c. 3. 37 Ed. 3. c. 42 Ed. 3. c. 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 Doclaration of the Army presented at Walden and printed by the appointment of the Officers subscribed whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience and thereupon doe rightly apprehend their danger Now no man can think that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countryes and thereby utterly destroy their own Rights and Properties 3. 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 dies 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 sense of the people and doubtlesse the Jurors will not think otherwise 4. This Ordinance is restrained to the authority 4 Pars inst p. 1. 3 pars inst p. 22. 1 pars inst p. 1. 28 H. 8. f. iâ— Dier 38 H. 8. fol. 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 than 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 Parl. and no other and the Iudges may ought and I believe wil according to their oathes proceed as not bound at all by this Ordinance For it is restrained to the authority of Parliam service or benefit thereof whereas the two Houses are not the Paâ—l but onely parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people 5. This Ordinance is against their Ordiinance which expressly prohibits 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 6. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest heere and signifies in that language to consult and treat 1 Pars inst 109. 1 pars
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
60. 4. p. inst p. 1. It is true the King cannot controule or prevent his other Courts for that they are his ordinary Courts of common Justice to administer common right unto all men according to the fixed Lawes The Houses make no Court without the King they are no Bodie corporate without the King nor Parliament without the King they all make one corporate Bodie one Court called the Parliament whereof the King is the Head 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 Statute for not dissolving adjourning or proroguing this Parliament of no effect by the said Acts of their own 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 He may discerne what Bils 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 own disobedience and fault For the ordinary Courts at Westminster 27. H. 8. c. â—4 28. H. 8.11 Dier the Judges in all those Courts are Judges by the Kings patent or Writ otherwise they are no Judges the Houses can make no Judges 2. â— 3.11 they are no Judges at all who are made by them the whole and sole power of making Judges belongs to the King the King cannot controul or prevent his own Judges from â—itting and acting but the Houses He may for they are not the Kings Judges but the judges of the â—â— Houses In his other Courts the King commits his power to his Judges by his patent and they are sworne to do common right to all men and the King is sworn not to let them from so doing the King cannot judge in those Courts nor controul but the King is both Judge and Controuler in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bills Many Lawyers have much to answer to God this Kingdom and to posteritie for puzling the people of this Land with such Fancies as the Gentleman who wrote the Answer to my Paper and others have published in these Troubles which have been none of the least causes of the raising and continuing of them And so I have done with the first part of this Answer AD. 2. For the Non sequitur in the second Section of the Gentl. Answer the Antecedent and the Consequent are his own Quem recitas meus est O Fidentine libellus Sed malè dum recitas incipit esse tuus My words are that the King is not virtually 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 27. H. 8. c. 24. as that the Kings power cannot be derived to others or the virtue of his power For his power and the virtue of his power â— in all patents to his Judges in harâ—ers to Corporations in Commission 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 claim it not from the King and declare to the Kingdom that he is not in condition to govern and imprison him and usurp to themselves all Royal Authoritie as the two Houses now do 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 Armes take all power unto themselves The Gent saith The King grants Commissions dayly of Oyre and Terminer which he cannot frustrate nor elude The King may revoke and discharge the Commission by his Writ as he may remove all Judges and place other men in their room and any Kings death determines all the Judges Patents at Westminster Hal Commission of Oyre and Terminer c And so he might dissolve both Houses in all times 4. â— 4.39 5. â— 4.4 1. Eliâ— Dier 165. 1. Mar. Brooks case 〈◊〉 by his Writ under the Great Seal untill that in this Parliament by his own concession the King of his goodnesse had secluded himselfe which goodnesse hath been full ill requited The Gentl. affirmes That the power the Parliament hath is concurrent from the King and Kingdom which he conceives is proved by the grant of Subsidies to the King by the Parliament 4. pars 〈◊〉 pag. The mistaking of this word Parliament hath been mischievous in these times to this Land and it is affectedly mistaken which makes the sin 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. Peers of this Kingdom who were temporal Peers before the Troubles there are now not above 30. in the Lords House and in the House of Commons about 200. of the principal Gentlemen of the Kingdom left the House and adhered to his Majesty who is imprisoned by them shewes no such candor as is to be desired It is true that no Tallage can be laid 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 M. Seldens learned Book called Mare clausum a number of presidents in Henry the Thirds time for Ship-mony justly condemned this Parliament to the 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 25. E. 1. confirmatio chartarum c. 6. 34. H. 1. c. 1. de Tallagio non concedendo Dangelet Englishely and many grievous Burthens were laid upon the people and born untill that memorable Princes time But I am of opinion that the common Law of the Land did alwayes restrain Kings from all Subsidies and Tallages but by consent in Parliament which doth appear by Magna Charta the last chapter where the Prelates Lords and Communalty 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 been many Parliaments and no Subsidies granted parliaments may be without Subsidies but Subsidies cannot be without parliaments of ancienâ— times parliaments rarely granted any unlesse it were in the time of forrâ—igne Warres and in my time Queen Elizab. refused a Subsidie granted in parliament and in the parliament of 1. Iac. none were granted The Gentl. should make a conscience of blinding the people with such untrue colours to to the ruine of the King and people AD. 3. The Gentl.
affirmes 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 property c. The propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the propositions That they have a strict right or property to any one of these propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right property to lay upon the people what Taxes they shall judge meet To pardon all Treasons c. that is one of their Propositions Have they a strict right and property to pardon themselves and so for all the rest of their Propositions These propositions have been Voted by both Houses the Kings assent they being drawn into Bills makes them Acts of Parliament Hath the King no â—ight to assent or dis-assent 12 H. 7 20. 1 Iac. c. 1.1 Car. c. 7. Waâ— the sending but a Complement All our Law-books and Statutes speak otherwise This Gent. and others must give an account one time oâ— other for such delusions put upon the people AD. 4. The Gent. saith They affirme not that the Kings power is separated from his person so as the two Spencer affirmed c. His Majesties person iâ— now at Holâ—by 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 Chaplains 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 Calvins case 1 E. c. 2.7 pars â—â—ports 11. 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 they haue taken him and imprisoned him they governe themselves they make Laws impose Taxes make Judges Sheriffes and take upon them omnia insignia summae potestatis Is not this to remove the King for misdemeanours to reforme per asperte to govern in aid of him the three conclusions of the Spencers Doe they think the good people of England are become stupid and will not at length see these things The Gentleman saith Plowd 4. Eliz. 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 Officers when they counterfeit the Great Seal and seale Writs with the same make Judges themselves Courts and Officers by their owne 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 Judges their owne Courts their own Officers and not the Kings The time will come when such strange actions discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardening Delinguents we only say it is not proper to him quarto modo c. What doe you meane by quarte 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 Judge Stanford Stanford pleas 99. 27 H. 8. c. 24. Dier 163. from all Antiquity to his time who died in the last yeare of King Philip and Queene Maries Reigne you shall finde this a truth undeniable and this power was never questioned in any Age in any Book by any untill this time that every thing is put to the question You Gentlemen who proâ—esse the Law and maintaine the party against the King returne 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 Bract. lib 3 cap 14. fol. 132. 1. pars Instit pag. 344. Plow 3. Eliz 236. 237. the Kings Prerogative and the subjects Liberty are determined and bounded and admeasured by a written Law what they are we doe not hold the King to have any more power neither doth his majesty claime any other but what â—he Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers doe now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an art of Parliament made by the King Lords and Commons that will secure them and let this Army remember their exccuted fellow-Souldier and the Law was alwaies so taken by all men untill these troubles that have begoâ— Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be 〈◊〉 condition to governe c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or lâ—tter syllable or line in any Age in the books of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz when the two Houses will suffer him the Law saith thus Vbi lex non distinguit non est distinguendum He saies The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knows the contrary Nos 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 qua itur sed qua eundum follow not the wayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seek it in time AD. 7. The Gent sayes â—e swear that the King is our supreme Goverour ouer all persons in all causes 5 Eliz. ch 1. Cawdreys case 5 pars fol. 1. c. Why hath he left out the word onely for the Oath the Members now take is that King Charles is now the only and supreame Governour in all causes 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 Gentleman affirms in his Answer These things agree well with their Oath This Oath is allowed by the common-Law Law of the Land that the King is the onely Supreame Governour in all causes over all persons This Oath is taken now in
the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publick Affaires This Oath being taken in Parliament that the King is the only and Supream Governour in al causes then it followes in Parliament causes over 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 publicke good and their private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes Wee do not swear that the King is above all Law nor above the safety of his people neither do we so swear but his Majesty and we will sweare to 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 Lawe nor above the safety of his people the Law and the safety of his people are his safety his Honour and his Strength AD 8. The Gent. concludes That Acts of Parliament are not formaly binding nor compleat without the Kings assent yet the Houses have a virtual power with out the Kings particular assent to doe things in order to publique justice and Safety viz. In setting up the Excise in raising and maintaining of Armes in Taxing the people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loans Compositions imprisoning the King abolishing the Common prayer Book felling the Churchs Lands c. all these are in order to the publick Justice 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 lies to beleeve and follow the monition and councell of that memorable reverend and profoundly Learned in the Lawes and Customes of the Land the Lord COOKI 3 par Inst pag 36. 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 Books Records and Histories and you shall finde a Principle in Law a Rule in Reason and a Triall in Experience that Treason doth ever produce farall and finall destruction to the offender and never attains to the desired end two incidents inseparably thereunâ—o therefore let al men abandon it as the poysonouâ— bait of the divil follow the Precept in Holy Scripture SERVE GOD HONOUR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS Conclusion I say againe that without an Act of Oblivion a gratious Generall pardon from his Majesty the arrears of the Souldiers paid a favourable regard had to tender Consciences theâ—e will he neither Truth nor Peace in this Land nor any mansâ—cure of any thing he hath By me David Jenkins Prisoner in the Tower A DISCOURSE TOVCHING The Inconveniencies of a Long-continued PARLIAMENT A Perpetuall Parliament is repugnant to the Act made this Parliament for a Triennial Parliament for how can every three yeares a Parliament beginne if this bee perpetuall which may bee so if the two Houses please 2. An adjournment of the Parliâ—ment makes no Session 4 pars institut fol. 27. Howbeit before the adjournment the KING gives His Royall assent to some Bills Cookeibid 3. There is no Session till a Prorogation or dissolution of the Parliament 4. This Parliament as appeâ—res by the Act for not dissolving thereof set downe in the printed Statutes of this Parliament Plowd com 33.8 Bro. relation 35. Bro Parl. 86. Dâ—â— 1. Mariae 8 fol. 138. cannot be prorogâ—ed or dissolved but by Act of par liamènt There hath been as yet no Act of Parliament in that behalfe And therefore all the Acts of this Parliament are Acts of one Session 5. All Acts of one Session relate to the first day of the Parliament and all the Acts of such a Parliament are acts of one day so the Act for the Trienniall and the Act for this Perpetuall are two Acts of one day by the Law 6. 4 Ed. 3. cap. 36. Ed. 3. cap. 10. A Parliament is to be holâ—en once every yeare and more often if need shall bee those Acts are confirmed by the Act for the Trienniall Parliament How doth a perpetuall Parliament agree with a Parliament once every yeare or with the intention of those Lawes How doth a Parliament every three-years agree with a Parliament for ever which may be if the two Houses please 7. The result is this atâ—ent day in Law this Parliament two acts have passed for howbeit the one was in 16 Carol. and the other in 17 Carol. yet both in Law are Acts of one day the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parliament The other this Parliament shall sit for ever if they please The one will have a Parliament with an end the other a Parliament without an end When an Act of Parliament is against common Right or Reason 1 Pars. Doct. Bon. hams case â—o 11 8. 8. E. 3 3.30.33 E. cassaâ—it 32. 27. H. G. Anuity 41. 1. Eliz. Dâ—er 113. or repugnant or impossible to be performed the Common Law shall controle it and adjudg this Act to be void they are the words of the Law An Act of Parliament that a Man shall be judg in his own Cause is a void Act. Hobbart Fol. 120. Begin with Common Right It is against Common Right that indebted men should not pay their debts That if any Member of the House of Commons doe any Subject wrong by disseising him of his land or dispossessing him of his goods or blasting of his fame or doing violence to his person that such persons during their lives should not be questioned by a Priviledg of Parliament and that extended also to many other beside themselves common right doth abhor these Enormities which a perpetuall Parliament doth beget besides the utter destruction of al mens actions real personall or mixt 21. Iac c. 16. who have to doe with Parliament-men by the statute of Limitation which confines Suites to certaine yeares For Common Reason Parliaments were ordained for remedies to redresse publique greivances it is against reason they should make publique and insufferable Grievances The Law of the Land allowes no protection for any men imployed in the service of the Kingdome but for a yeare to be free from Suites and in many Suites none at all howbeit he be in such service 39. H. 6.39 but a Parliament perpetuall may prove a protection not for a yeare but for ever which is against all manner of reason For impossibility The death of his Majesty whose life God prolong dissolves 〈◊〉 necessarily for the Writ of Summons iâ— Carolus Rex in hoc individuo and Carolus Rex is in this particular habiturus colloquium tractatum cum prelat is
which are the Common lawes of the land Doth Excise the Fifth and Twentieth parts Meal-money and many more Burdens which this Land never heard of before maintaine the Liberties of the people You and that party of the two Houses made the Army by severall Declarations before Engagement believe that you would preserve the Kings Honour and Greatnessâ— the Lawes and Liberties of the people The Army and the whole Kingdome now facta vident see your Actions and have no reason longer to believe your Oathes Vowes and Declarations and since that party in the two Houses refuse to performe any thing according to their said Oathes Vowes And Declarations the Army and the Kingdome may and ought both by your own principles and the Lawes of the Land to pursue the ends for which they were raised And so your first Quare is resolved whereby it is manifest that specious pretences to carry on ambitious and pernitious Designes fix not upon the Army but upon you and the prevailing party in both Houses 3 par Inst f. 12.39 El. 1 Iac. ibi 3 3. E. 6. c. 3 11. 〈◊〉 7. c. 1. The solution of the second Quaere The Army to their eternall honour have freed the King from imprisonment at Holmby It was High Treason to imprison his Majesty To free his Majesty from that imprisonment was to deliver him out of Trayterous hands which was the Armies bounden duty by the Law of God and the Land That party refused to suffer his Majesty to have two of his Chaplaines for the exercise of his Conscience who had not taken the Covenant free accesse was not permitted doth the Army use his Majesty so all men see that accesse to him is free and such Chaplaines as his Majesty desired are now attending on his Grace Who are the guilty persons the Army who in this action of delivering the King act according to Law or the said parâ—y who acted Treasonably against the Law Who doth observe the Protestation better they who imprison their King or they who free him from prison That this Army was raised by the Parliament is utterly false The Army was raised by the two Houses upon the specious pretences of the Kings Honour common safety and the preservation of Lawes and Liberties which how made good hath beene shewed before and all the people of the Kingdome do finde by wofull experience The two Houses are no more a Parliament than a Body without a Head a Man 14 H. 8 3.36 H. 7 Dier 60 4 pars Instit p. 1 3 12 14.16 R. 2 c. 1â— 5 Eliz. c. 2 17. Carol. The Act for the continuance of this Parliament The two Houses can make no Court without the King they are no Body Corporate without the King they all Head and Members make one Corporate Body And this is so clear a Truth that in this Parliament by the Act of 17. Caroli it is declared That the Parliament shall not be dissolved or prorogued but by Act of Parliament but the two Houses may respectively adjourne themselves Two Houses and a Parliament are severall things cuncta fidem vera faciunt all circumstances agree to prove this truth Before the Norman conquest and since to this day 4 par Instit p. 18.4 par Instit p. 4 9 5 Eliz c. i 2 the King is holden Principium caput Finis that is the beginning Head and chiefe end of the Parliament as appeareth by the Treatise of the manner of holding of Parliaments made before the Norman Conquest by the Writ of Summons of Parliament whereby the Treaty and Parler in Parliament is to be had with the King only by the Common Law by the Statute-Law by the Oath of Supremacy taken at this and every Parliament it doth manifestly appeare that without the KING there can be no coulour of a Parliament How many Votes have they revoked in one Session yea and Bills Was there ever the like done Nay is not the constant course of Parliaments violated and made nothing thereby They are guarded by armed men divide the publike Mony among themselves and that party endeavours to bring in a Forraigne Power to invade this Land againe If they be no Parliament as clearly they are none without his Majesty they have no privâ—ledges but do exercise an Arbitrary Tyrannicall and Treasonable power over the people By the Law of the Land 7 E. 4 20 8 E. 4 3 9 E. 4.27 4 H 7 18 27 H 8 23. when Treason or Felony is committed it is lawfull for every Subject who suspects the Offendor to apprehend him and to secure him so that Justice may be done upon him according to the Law You say the disobedience of the Army is a sad publick president like to conjure up a spirit of universall disobedience I pray object not that conjuring up to the Army whereof you and the prevailing party in the Houses are guilty who conjured up the spirit of universall disobedience against his Majesty your and our onely Supreme Governour but you and that party in the two Houses and even then when the House of Commons were taking and did take the said Oath of Supremacy For the Covenant you mention it is an Oath against the Lawes of the Land against the petition of Right devised in Scotland wherein the first Article is to maintaine the Reformed Religion in the Church of Scotland And certainly there is no Subject of the English Nation doth know what the Scottish Religion is 2 par Coll. of Ord. pag. 803. 3 par Inst fol. 165. Petition of Right 3. Car. â— pars instit 71â— I beleeve the Army tooke not the Covenant No man by the Law can give an Oath in a new case without an Act of Parliament and therefore the imposers thereof are very blameable and guilty of the highest Crime The Writer of these Quaeres seems to professe the Laws Let him declare what Act of Parliament doth justifie the tendring giving or taking of the said Oath he knoweth there is none he knoweth that all the parts of it are destructive of the Laws and Government to maintaine which the Law of Nature and the Law of the Land hath obliged them The Oath of the Covenant makes the Houses supream Governours in causes Ecclesiastical the Oath of Supremacy makes the King so and yet both taken by the same persons at the same time What credit is to be given to persons who make nothing of Oathes and contradict themselves How do the Covenant the Oath of Supremacy agree How do their protestation and the Covenant agree How do their Declarations and Oaths agree The Lord be mercifull to this Land for these Oaths It is a sad thing to consider that so many Gentlemen who professe the Lawes and so many worthy men in both Houses should be so transported as they are knowing that the Lawes of the Land from time to time and in all times are contrary to all their actions and that they yet should amuse
and in laying Burdens upon the people and in breaking all the Oathes Vowes and promises they ever made As the Army hath power 2 3 E 6. c. 2. 11 H 7 c. 1. Calvins case 7. pars Cook fol. 11 so now adhering to the King all the Lawes of God Nature and Man are for them their Armies are just and blessed and the King is bound in justice to reward his Deliverers with honour profit and meere Liberty of conscience To the VI. Quaere All the sixth Quaere containes calumnies cast upon the Army the new Elections are against all the Lawes mentioned in the Margin and are against the Ejection of the old Members and by this it may be judged 11 M 4 c. 1 1-h 5 0 1.8 h 6 c. 7 23 h. 6 c. 15. what a House of Commons we have By the said Lawes it appeares that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is two hundred pounds one to the King and the other to the party that is duly elected Imprisonment for a yeare without Bail or mainprize and that person who is unduly returned shall serve at his own charge and have no benefit at the end of the Parliament by the Writ De solutione Militum Civium Burgensium Parliament And the trial of the falsity of the returne is to be before the Justices of Assizes in the proper county or by action of Debt in any Court of Record This condemnes the Committee for undue Elections 3. Ed. 4.20.5 Ed. 4.42 which hath been practised but of late times for besides these Lawes it is a-Maxime of the Common Law art Averment is not receivable against the returne of the Sheriffe for his Returne is upon Oath which Oath is to be credited in that Suit wherein the Returne is made The said Statutes condemne Elections of such men who were not resâ—ant and dwelt in the County or Boroughs for which they were returned and any abusive practise of late times to the contrary is against the Law and ought not to be allowed To the VII Quaere The Quaerist saith that the Votes of the Independents in the Houses were arbitrary exorbitant and irregular and that they disposed and singred more of the common Treasure than others That whole Quare I believe is false and slandeâ—ous and the Author ought to make it good or else to undergo the Law of Talnio 37. Ed. 5. c. 17. which is to suffer such punishment failing of his poof as the accused should in case of proofe made To the VIII Quaere This Quaere is all minatory and threatning and the contrary of every part is true by the deliverance of the King and Kingdom from the bondage of that party in the 2 Houses by the Army their renown will be eversasting they secure themselves they content and please the Kingdome City and Countrey as appeares by their confluence to see his Majesty and the Army and their acclamations for his Majesties safety and restitution all which doth evidence to every one of the army how acceptable the intentions of the Army are to the people of this Land who have been so long inthralled Sir Thomas Fairfaâ— let your Worthinesse remember your extraction and your Ladies by the grace and favour of the Prince to be in the ranke of Nobility Remember what honour and glory the present Age and all posterity will justly give to the Restorer of the King to his Throne of the Lawes to their strength and of the afflicted people of this Land to peace Let the Colonels and Commanders under You and likewise your Souldiery rest assured that they shall not only share in the renowne of this Action but also shall have such remuneration as their haughty Courage and so high a virtue doth deserve This his Majesty can and will do the Houses neither will nor can and God blesse you all and prosper you I Conclude all as I have alwayes done without an Act of Oblivion a generall pardon the arrears of the Souldiery paid and a regard to Liberty of conscience this Kingdom will certainly be ruined Iudge Ienkins PLEA delivered into the Earl of Manchester and the Speaker of the House of COMMONS Sitting in the CHANCERY at WESTMINSTER Which was read by their Command in open Court the 14th of Febr. 1647. And there avowed By DAVID IENKINS Prisoner in NEVVGATE LONDON Printed In the Yeare 1648. Judge Jenkin's PLEA Delivered in to the Earle of Manchester and the Speaker of the House of COMMONS sitting in the CHANCERY at WESTMINSTER I Have been required to appear in the Chancery the Twelfth of this instant February before Commissioners appointed by the two Houses for the keeping of their Great Seal and managing the Affaires of the Chancery I cannot nor ought nor will submit to this power I am a Judge sworne to the Lawes The Law is First that this Court is Câ—ram Râ—gâ— in Cancellaria 4 pars instfol 79 â— E 4 fol 5 â— E 4 f 15 Secondly the Chancellor or Keeper of the great Seale is by delivery of the Great Seale to him by the KING and by taking of an Oath The Oath followeth in these words 1. 42 pars inâ—â— 10 R 2 rot Parlanum â— Well and truly to serve our Sovcraigne Lord the King and his people in that Office 2. To do right to all manner of people poor and rich after the Laws and usages of this Realm 3. Truly to Counsell the King and his Coun cell to conceate and keep 4. Not to suffer the hurt or disheriting of the King or that the rights of the Crown be decreased by any means â—â—farre as he may let it 5. If he may not let it be shall maâ— it clearly and expresly to be knowne tâ— the King with his advice and counâ— sell 6. And that be shall do and purchase the Kings profit in all that he reasonably may as God him help and the contents of Gods book The said Commissioners among others have Imprisoned their King Declar. 17 Ian. 1647 have declared to the Kingdome that they will make no Addresses or Applications to him nor receive any from him Have counterfeited a new great Seal Articulisup chartrs c. 5 and after destroyed the true old great Seale which belonged by the Law to the Kings custody These Commissioners have had no Seale delivered to them by his Majesty have taken no such Oath or full ill kept it and for these evident reasons grounded upon the sundamental Lawes of this Land these Commissioner have neither Court Scale or Commission and therefore I ought not against â—he Lawes against my knowledg and against my conscience submit to their power To affirâ—e that they maintaine the Kings power and authority in relation to His Lawes as they often do and restraine only his person is strange They must be remembred that the House of commons this Parliament gave in charge to Mr. Solicitor upon the prosecution of the
non licet testari this Pubertas begins at 14. it is Plena pubertas at 18 yeares of age The question is whether this jus testandi is in pubertate plena or pubertate inceptâ Pigots Case 5. part of Cookes Reports the Doctors affirmed that 17 years of age was a full age as to an infant Executor to dispose of Goods this opinion hath been by others sithence denyed Sir Edward Cook 11 part Inst sect 123. saith He must be 10. which is the time of plena pubertas 2. Hen. 4.12 an infant of 18. years of age may be a deisseissour Sir Jo. Doderigge in his booke called The Office and Duty of Executors which they say is his and it is a learned and laborious Treatise fol. 347. delivers that this opinion of 17. yeares for that ability in an infant hath been reported otherwise This latter opinion comes nearer the Common Law and the Statute Law of the Land which Common Law and Statue Law gives infants no power by Deed or Will to make any disposition of any thing they have before they be 21 yeares of of age It seems also more reasonable because infants at 18 yeares have by the intendment of Law as they grow in yeares more use of reason to discern what is fit for them to doe and act And for a meere stranger to sue in a Court of Conscience who pretends by such Wills of infants the infant Husband being ravished against the will of the Kindred of the deceased who dyed six yeares sithence without issue being 17 yeares of age and that any part of his part of his estate should go that way by a course of Equity unlesse the Law be for Mr. Erneley who heyd not a penny with his Daughter and who would have the Husband of his daughter bring him a portion by his pretended title of an Executor of an Executor of an Execueor viz. of an infant the Executor of another infant the Executor of a third person seems very strange The said Licensed Historiographer of theirs hath published the 16 of this present Moneth of February 1647. that I out of a desire to keep the Estate have in a suite in the Court of wards in my Cousins life time pleaded to the Iurisdiction of that Court. It is true I did so for I conceived that the Estate would be unsafe in Mr. Ernley's hands and I was willing to preserve it titl my young Cousin came to be of age to dispose of it himselfe according as I was trusted The Law being 32. H. 8. c. 46.4 pars inst fol. 201.202 that the Court of Wards had no jurisdiction over the personall estate for then the Marriage was paid for to the King and all due to the King ascertained It is true that that was insisted upon as was just for to preserve the Estate from Mr. Erneley who would have made what account he pleased to my Cousin at his full age And this is the truth of that businesse That I declined not the Jurisdiction of the Chancery to keepe an Estate in my hand appeares by my declining long sithence the power of the House of Commons to examine me and the Reformers have all my Estate What would Mr. Ernley have when they the Reformers have all already or can have from me if he had any colour J desire the good people of this City to observe what notorious Vntruths their Licensed Historigraphers publish to delude the people In this particular case they publish First That the Suit against me is in the behalfe of an Orphan M. Earnely who is Plaintiffe in their Court is a Wiltshire Gentleman at the least of 50. years of age there is their Orphan Secondly That I made a speech to the people at the Hall door that the questioning of me for what I had done for the KING was illegall and that the Iudges had no power to tâ—y me the KING being absent Another notorious untruth For I protest to God all that I said was onely this God preserve the KING and the Lawes Thirdly it is said that comming to the Barre I stirred not my Hat All the Lawyers then at the Barre were uncovered wherefore I held it a civility to be also uncovered and so I was as they all know Fourthly That the E. of Manchester should say I received a great estate in money of the Orphans estate As there is no truth in it so it is most untrue that the said Lord so said as all men present can testifie The truth is they care not what they do what they say what they swear nor what they write Witnes the Declaration of a prevailing party of the H. of CoÌ„mons of the 11 of this instant February who contrary to the Oath of Allegiance the Oath of Supremacy the Protestation their solmne League and Covenant their Declarations to make His Majesty a glorious King fearfull to his enemies and beloved of his Subjects and yet now after 22. yeares they would insinuate to the people that this King whom they have so much magnified hath poysoned his own Father Fiftly it is a publike notorious untruth That the Parliament hath published a Declaration against the King of the 11. of this instant Feb. whereas it is well known to be the Declaration of the prevailing party of the House of Commons only without the Lords and so they would make that prevailing partie only to be the * Their licensed Historiographer who published this is called their Kingdoms weekly post from Wednesday Feb. 7 to Wednesday the 16 of Feb. 1647 Par. liament Let the people of England beleeve their five sences how it was with them seven yeares agoe and before during his Majesties Reign how this Kingdom abounded then with Peace Plenty and Glory to the admiration envy of other Nations now let them consider and judge by their Senses sithence those men whom nothing would satisfie but all Power both by Sea and Land which in truth is the regality kingship which they call the Militia have usurped the said Power Regal whether they have not by Impostures and Delusions diffused among the people by themselves and their Agents brought a flourishing Kingdom to the most deplorable condition it now is in To the end that this Kingdome may not utterly be ruined God incline their hearts to restore his Majesty and for their own and their Posterities sake to receive from his Majesty an Act of Oblivion a generall Pardon assurance for the Arrears of the Souldierie and meet satisfaction for tender Consciences DAVID JENKINS Iudge Ienkin's Remonstrance TO THE LORDS AND COMMONS OF The two HOVSES of PARLIAMENT at WESTMINSTER the 21. of February 1647. By DAVID JENKINS Prisoner in Newgate Printed in the Yeare 1648. Judge Jenkin's REMONSTRANCE TO THE LORDS and COMMONS AT WESTMINSTER I Desire that the Lords and Commons of the two Houses would be pleased to remember and that all the good people of England do take notice of an Order of the House of Commons this
Inne and of the rest of the Innes of Court and to all the Professors of the LAW I Have now spent Forty five yeares in the Study of the Laws of this Land being my Profession under and by the conduct of which Lawes this Common-wealth hath flourished for some ages past in great splendor and happinesse jam seges est ubi Troja fuit The great and full body of this Kingdome hath of late yeares fallen into an extreame sicknesse it is truely said that the cause of the disease being knowne the disease is easily cured There is none of you I hope but doth heartily wish the recovery of our common parent our native countrey Moribus antiquis stat res Britannica I call God to witnesse that this discourse of mine hath no other end then my wishes of the common good how farre I have been from Ambition my life past and your owne knowledge of me can abundantly informe you and many of you well know that I ever detested the Ship-money and Monopolies and that in the beginning of this Parliament for opposing the excesses of one of the Bishops I lay under three Excommunications the Examination of seventy seven Artioles in the high Commission Court His sacred Majesty God is my witnesse made me a Judge in the parts of Wales against my will and all the meanes I was able to make and a patent formy place was sent me for the which I have not paid one farthing and the place is of so inconsiderable a benefit that it is worth but 80. l. per Annum when paid and it cost me every yeare I served twice as much out of my owne estate in the way of an ordinary and frugall expence That which gave me comfort was that I knew well that his Majesty was a just and a prudent Prince In the time of the Atturneyships of Mastor Noy and the Lord Banks they were pleased to make often use of me and many referrences concerning suits at Court upon that occasion came to my knowledge and as I shall answer to God upon my last account this is truth that all or most of the referrences which I have seene in that kind and I have seene many were to this effect that his Majesty would be informed by his Councell if the suits preferred were agreeable to the Lawes and not inconvenient to his people before he would passe them what could a just and pious Prince doe more Gentlemen you shall finde the cause and the Cure of the present great distemper in this discourse and God prosper it in your hands thoughts and words as the case deserves Hold to the Lawes this great body recovers forsake them it will certainely perish I have resolved to tender my selfe a Sacrifice for them as cheerefully and I hope by Gods assistance as constantly as old Eleazer did for the holy Lawes of his Nation Your Well-wisher David Jenkins Now Prisoner in the Tower LEX TERRAE THe Law of this Land hath three grounds First Custome Secondly Iudiciall Records Thirdly Acts of Parliament The two latter are but declarations of the Coumon-Law and Custoâ—e of the Realme touching Royall Government And this Law of Râ—yall Gâ—vernment is a â—aw Fundamentall The Government of this Kingdome by a Râ—yall Soveraigne The Kings Prerogative is a principall part of the common Law Com. Lital 34â— 27 Hen. 8. Stamford Praâ— fol. 1. 2 Pars inflit fol. 496 3 Parsinstit pag. 84. hath been as ancient as History is or the memoriall of any time what power this Soveraignty alwaies had and used in warre and peace in this Land is the scope of this discourse That Vsage so practised makes therein a Fundamentall Law and the Common Law of the Land is common Vsage Plâ—wdens Commentaries 195. For the first of our Kings sithence the Norman Conquest the first William second William Henry the first Stephen Henry the second and Richard the first the Customes of the Realme touching Royall Government were never questioned The said Kings injoyed them in a full measure In King Iohns time the Nobles and Commons of the Realme conceiving that the ancient Customes and Rights were violated and thereupon pressing the said King to allow them in the seventeenth of King Iohn the said Liberties were by King Iohn allowed and by his Sonne Henry the third after in the niâ—th yeare of his Reigne confirmed and are called Magna Charta and Charta de Foresta declared foure hundred twenty two yeares sâ—hence by the said Charters Now â—ests to be considered after the Subjects had obtained their Rights and Liberties which were no other then their ancient Customes and the fundamentall Rights of the King as Soveraigne are no other How the Rights of Soveraignty continued in practise from Henry the thirds time untill this present Parliament of the third of November 1640. for before Henry the thirds time the Soveraignty had a very full Power Rex habet Potestatem jurisdictionem super omnes qui in Regno suo sunt Bracton temp H. 3. l. 4 cap. 24. Sect. 1. ea quae sunt jurisdictionis paucis ad nullum pertinent nisi ad Regiam dignitatem habet etiam coercionem ut Delinquentes puniat coerceat This proves where the supreme Power is A Delinquent is he who adhears to the Kings Enemies Com. Sur. Litil 261. This shewes who are Delinquents Omnis sub Rege ipse sub nullo nisi tantum Deo nonest inferior sibi Subjectis Soct 5. Bracâ— ibid. non parem habet in Regno suo This shewes where the supreme power is Rex non habet superiorem nisi Deum satis habet ad poenam quod Deum expectat ultorem Bracton l. 5. tract 3. de delaiti cap. 3 Bracton l. 3 cap. 7. This shewes where the supreme power is Treasons Fellonies and other Pleas of the Crowne are propria causa Regis This shewes the same power By these passages it doth appeare what the Custome was for the power of Soveraignty before that time the power of the Militia of coyning of Money of making Leagues with forraigne Princes the power of pardoning of making of Officers c. All Kings had them the said Powers have no beginning Sexto Edw. 1. Com. Sur. Eittl 85. Lege Homage every Subject owes to the King viz. Faith de Membro de vita de terreno Honore the forme of the Oath Edward 1. inter vetera statuta is set downe We read of no such or any Homage made to the two Houses but frequently of such made by them It is declared by the Prelates Earls Barons and Commonalty of the Realme that it belongeth to the King and his Royall Segniory â— Ed. 1. Strasuâ—e at large fol. 42. straitly to defend force of Armour and all other force against the Kings peace at all times when it shall please him and to punish them that shall doe contrary according to the Law and Usage of the Realme and hereunto they are bound to ayd their
themselves and the people with the word Parliament without the King and with the Covenant whereas they know they are no Parliament without His Majesty And that English men throwout the Kingdome should swear a Covenant to preserve the reformed Religion of Scotland in Doctrine Worship Discipline and Government which they do no more know than the Doctrine Worship Discipline and Government of Prester John in Aethiopia if they consider it they cannot but discerne that this is a high desperate and impious madnesse Be wise in time Without the King and the Lawes you will never have one hour of safety for your Persons Wives Children or Estates Be good to your selves and to your posterities apply your selves to be capable of an Act of Oblivion and of a generall Pardon and to be able and willing to pay the Souldiery and to allow a reasonable liberty for mens consciences and God will blesse your endeavours and the people to whom you are now very hatefull will have you in better estimation The third Quaere is thus answered You resemble the Army to Jack Cade and his complices and you cite the Act of Parliament of 31. Hen. 6. cap. 1. And that it may appear who acts the part of Jack Cade you and that party in the two Houses or the Army I think it necessary to set down the said Act in words at length as followeth First VVhereas the most abominable Tyrant horrible odious arrant false Traytor John Cade calling and nameing himself sometime Mortimer sometime Capt. of Kent which name fame acts and feates are to be removed out of the speech and minds of every faithfull Christian man perpetually falsly and tralterously purposing and imagining the perpetuall destruction of the Kings said Person finall subversion of this Realm taking upon him Royall Power and gathering to him the Kings people in great numbers by false subtile imagined language and seditiously making a stirring Rebellion Insurrection under colour of Iustice for Reformation of the Lawes of the said King robbing stealing and spoyling great part of his faithfull people Our said Soveraigne Lord the King considering the premises with many other which were more odious to remember by the advice and consent of the Lords aforesaid at the request of the said Commons and by authority aforesaid hath Ordained and established that the said John Cade shall be reputed had named and declared a false Trayper to enr Soveraigne Lord the King and that all his tyranny acts feats and false opinions shall be voyded abated nulled destroyed and put out of remembrance for ever and that all Indictments and all things depending thereof had and made under to power of Tyranuy shall be likewise void anuulled abated repealed and holden for none and that the blood of none of them be thereof defiled nor corrupted but by the Authority of the said Parliament clearly declared for ever and that all Indictments in times coming in like case under power of Tyranny Rebellion and Stirring had shall be of no Record nor effect but void in Law and all the petitions delivered to the said King in his last Parliament holden at VVestm Nov 6 in the 29. of his râ—igne against his mind by him not agreed shall be taken and put in oblivion out of remembrance undone voided aâ—ulled and destroyed for ever as a thing purposed against God and Conscience and against his Royall Estate and preeminence and also dishonourable and unreasonable Now we are to examine who hath trod in the steps of Iack Cade you and the present prevailing party of both Houses tooke upon them and do take all the Royall power in all things so did Iack Cade as appeares by the said Act the Army do not so They who imprison the King purpose to destroy his person our imprisoned Kings aswaies * Edward 1. Henry 6 Richard 2. fared so Iack Cade did likewise so purpose The said party in the two Houses made a stirring under colour of Instice for reformation of the Lawes so did Iac Cade The Army do not so but desire that the Lawes should be observed lack Cade levied war against the King The Army preserves Him Iack Cade dyed a Declared Traitor to his Soveraign Lord the King this army might have lived to have the glorious true Honor of being restorers of their King Simon Sudbury Archbishop of Canterbury was murthered by Jack Straw William Laud Archbishop of Canterbury was likewise murthered by that party of the two Houses 25 Ed. 3 4.28 Ed. 3.3 Petition of Right for that an Ordinance hy Law cannot take away any mans life and his life was taken away by an Ordinance of the two Houses the army had no hand in it Many misted by Iack Straw perceiving his Trayterous purposes fell from him and as that was lawfull just and honourable so it is for this Army to adhere to their naturall King and so endeavour to settle the Kingdome again in the just Lawes and Liberties thereof London did then right worthily adhere to the King and the Laws and not to Jack Straw and his specious pretences and it is hoped they will now so do By this it appeares that the Gentlemans Discourse touching Iack Cade fastens altogether on his party and cleareth the Army To the IV. which is resolved thus The Arreares of the Army howbeit it is the least thing they look after yet being not paid them it is by the Law of the Land a sufficient cause to leave and desert that party in the Houses a person who serves in any kinde and is not paid his Wages the desertion of that service is warrantable by the Lawes of the Land You say the Houses will reforme all things when the Army doth disband Fitz. N B 159 9 Ed. 4 20.38 H. 6 27 23 Eliz. Dier 369. Who will believe it Will any beleive that the setling of the Presbytery will do it Will any believe that his Majesty will passe the propositions sent to Him to Newcastle Will any man believe that this Kingdome will ever be quiet without his Majesty and the ancient and just Lawes Can the Members of the Army conceive any of them to be safe in any thing without a pardon from his Majesty Have they not seen some of their fellowes hanged before their eyes for actions done as Soldiers Shall the Kingdom have no acount of the many Millions received of the publique Money Will the Members of the Houses accuse themselves Shall private and publique Debts be never paid Shall the Kingdome lie ever under burthens of oppression and Tyranny There is no visible way to remedy all these Enormities but the power of the Army To the V. wich is solved thus The Kingdom hath better assurance of Reformation from the Army than from the Houses for that in their Military way they have been just faithfull and honourable they have kept their words That party of the Houses have been constant to nothing but in dividing the publique Treasure among themselves