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
Commissioners to tax men secundum faculâ—ates and so make all mens estates Arbitrary the answer is that in lâ—vying of publicke aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoyd discretion in the assesments for so it ever was and ever will bee By this appeares that the Votes of the two Houses against the Commission of Array were against the Law The death of the King dissolves the Parliament H. 9. if Kings should referre to the politick capacity it would continue after his death 2 H. 5 â— parâ— instit â—6 4 pars Iust 46 which proves that the King cannot be said to be there whâ—â— he is absent as now he is there is no inter regnum in the Kingdome the dissolution of the Parliament by hiâ— death shewes that the beginning and end thereof referrs to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5 Chap. 6. to the King onely it belongs to make Leagues with Forraigne Princes this shewes where the supreame power is and to whom the Militia belongs 8. H. 6. numb 57. Rott Parl. Cooks 4 pars instit 25. H. 6. No priviledge of Parliament is grantable for treason felony or breach of the peace if not to any one Member not to two not to ten not to the major part 19 H. 6.62 The Law is the inheritance of the King and his people by which they are ruled King and people And the people are by the Law bound to ayd the King and the King hath an inheritance to hold Parliaments and in the ayds granted by the Commonalty If the major part of a Parliament commit treason they must not be Judges of it for no man or body can be Judge in his own cause and aswel as ten or any number may commit treason the greater number may aswell The King by his Letters patents may constitute a County palatine and grant Regall rights 32 H. 6.13 Plowd 334. this shewes where the supreame power is 17. Ed. 4. Rot. Parl. numb 39. Ed. 4. No priviledge of Parliament is grantable for treason fellony or breach of the peace if not for one not for two or more or a major part The same persons must not bee Judge and party Calvins Case 7. pars fol. 11 12. A corporate body can commit no treason nor can treason be committed against a corporate body 21. E. 4.13 and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can bee committed by or against such a body that body hath no soule no life and subsists onely by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the Statue of 25. E. 3. must bee intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby his politique is there also and not at Westminster for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forraigne Prince 19 Ed. 4.46 22 Rd. 4. Fitz. jurisdiction â—â—st plaeite without the Kings consent the league holds is not broken and therefore the representative body is inferiour to his Majesties The King may erect a Court of Common pleas in what part of the Kingdome he pleaseth by his letters patents can the two Houses do the like 1 Ed. 5. fol. 2 It cannot be said that the King doth wrong 1 Ed. 5. 4 Ed. 4.25 5 Ed. 4 29. declared by all the Judges and Serjeants at Law then there The reason is nothing can be done in this Common wealth by the Kings grant or any other act of his as to the Subjects persons goods Lands or liberties but must be according to established Lawes which the Judges are sworne to observe and deliver betweene the King and his people impartially to rich and poore high and low 2 Pars instit 158. and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Lawes be violated and no reflection to be made on the King All Counsellors and Judges for a yeere and three moneths untill the tumults began this Parliament were all left to the ordinary cause of Justice what hath been done sithence is notorious For great Causes and considerations an Act of Parliament was made for the surety of the said Kings person R. 3. 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the Houses have greater reason to care for the preservation of his Majesty The Subjects are bound by their allegiance to serve the King for the time being Hâ—n 7. 11 H. 7. c. 1. against every Rebellion power and might reared against him within this Land that it is against all Lawes reason and good conscience if the King should happen to be vanquished that for the said deed and true duty and allegiance they should suffer in any thing it is ordained they should not and all Acts of processe of Law hereafter to be made to the contrary are to be void This Law is to be understood of the naturall Person of the King for his politick capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no Statute â—â— H. 7.20 4 H. 7.18 Henry 8. 7 H. 7.14 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to do justice to all men 24 H. 8. c. 12. 25 H. 8. c. 28 this is affirmed of the King and not of the two Houses The Commons in Parliament acknowledge no superiour to the King under God the House of Commons confesse the King to be above the representative body of the Realm Of good right and equity the whole and sole power of pardoning treasons fellonies c. 27 H. 8. c. 2â— Note belong to the King as also to make all Justices of Oyer and Terminer Judges Justices of the peace c. This Law condemns the practice of both Houses at this time The Kings Royall Assent to any Act of Parliament signed with his hand expressed in his Letters patents under the great Seale and declared to the Lords and Commons shall be as effectuall 33 H. 8. cap. 21. as if he assented in his owne person a vaine Act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principal members of the body Dier 38. H. 8. fo 59.60 the Commons the inferiour members and so the body is composed therefore there is no more Parliament without a King then there is a body without a head There is
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
besides that it incites men to selfe ends will be a constant charge to the Kingdome by reason of the wages of parliament men p. 141. Mischiefs by the length of parliaments p. 121. Certaine Erroneus Positions and Proceedings of both Houses of Parliament discovered and confuted THe two Houses without the King are not the Parliament but onely parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people p. 80.156 The King is not vertually in the two Houses p. 12.13.20.21 The two Houses are not above the King but the King is Superiour to them p. 11.19.23 24.133 The tenents of the Spencers are the ground of their proceedings p. 10.22 And upon their pretences they take upon them the Government at this time They have destroyed above a 100. Acts of parliament even all concerning the King the Church and Church men and in effect Magna Charta and Charta de Forresta which are the Common Lawes of the Land p. 154. They have fifteene severall illegall wayes raised Money upon the Subject this present parliament p. 35. There is no Crime from Treason to Trespasse but they are guilty of p. 142. They are not to bee Judges in their owne cause p. 15. Of their League and Covenant with the Scots p. 158.160 The two Houses by the Law of this Land have no colour of power to make Delinquents or pardon Delinquents the King contradicting p. 119.131 Certaine Erroneous Positions and Proceedings of the House of Commons discovered and confuted THey cannot bee Members of the House of Commons who were not recident in the Counties or Burroughs for which they were elected at the time of the Teste of the Writ of Summons of parliament p. 149. If any undue Returne bee made the person Returned is to continue a Member and the tryall of the Falcity of the Returne is to bee before the Justice of Assize in the proper County this condemnes the Committee for undue Elections p. 148. The House of Commons cannot Elect and Returne Members of that House p. 144. The ejecting of a Member that hath sitten is against Law also their new elections are against Law And by this it may be judged what a House of Commons we have p. 148. Breaches of priviledges of parliament may bee punished in other Courts p. 149. And what need then of the Committee for priviledges The house of Commons by their Writ have no separate power giuen them over the Kings people p. 144. The house of Commons cannot imprison any who are not their Members or Disturbers of their Members in the service of the parliament p. 143 144 145. The House of Commons no Court p. 115 116.144 145 146 c. The Propositions sent by the Parliaments of both Kingdomes to His Majestie at New-Castle pag. 6. GEnerall Reasons against those propositions p. 11.15.128 Reasons in particular against those propositions For disabling the King to pardon p. 13. For altering Religion in point of Government 37.61.63 For sale of the Bishops Lands p. 36. For taking away the Booke of Common-prayer p. 37. For taking from his Majesty all the power by Land and Sea p. 37. For laying upon the people what Taxes they shall think meet p. 128. Besides in their propositions they doe not style themselves His Majesties Subjects p. 128. The Kings Party pag. 36 37 38. THe Subjects are commanded by Law to Assist the King in War 36. Those who adhere to the King are freed by the Statute of the 11th Hen. 7. p. 39.78.97 Master Prins objections against the King and his party answered p. 47. c. The Parliaments Party are Delinquents A Delinquent is hee who adheres to the kings enemies this shewes who are Delinquents p. 7. The Army serving the Parliament THe summe of the Ordinance for the Indempnity of the Army p. 79. It can no more free the Souldiers than repeale all the Lawes of the Land p. 78. The Judges are sworn to doe Justice according to the Lawes of the Land p. 79. An Act of Oblivion and a Generall Pardon the only means to Indempnifie the Army and the whole kingdome p. 84. And the conclusion of all the other bookes The Army Rescuing the King TO deliver the King out of Traiterous hands is our bounden duty by the Law of God and the Land p. 155. By the Law of the Land when Treason or Felony is committed it is lawfull for every subject who suspects the Offender to apprehend him so that Justice may be done upon him according to Law p. 157. As the Army hath power so adhering to the King all the Lawes of God Nature and man are for them p. 166. None by the Law of the Land can in this kingdome have an Army but the King p. 153. The Liberty of the Subject Our Liberties were allowed in the 17th of King John and confirm'd in the 9th of Hen. 3. and are called Mâgna Charta and Charta de Forresta p. 6.117.130 Magna Charta is irrepealable p. 62. Severall Bils for our Liberties passed at the beginning of this Parliament p. 34. And how secured The Liberty of the Subject violated by the two Houses of Parliament 140 Miscellanea THe Lord Cookes Institutes published by the Order of the House of Commons p. 77. Of the Bill passed this parliament for taking away the Bishops Votes in Parliament p. 31. Against that saying that the King got away the Great Seal surreptitiously from the Parliament p. 45. Of Jack Cade p. 160. Treasons Murthers Felonies and Capitall Crimes to bee tryed by Iuries and not otherwise but by Act of parliament p. 102. The Chancellors or Keepers Oath 174. The present Commissioners have no Court Seal nor commission 175. The King the Laws and kingdome cannot bee severed The only quarrell was for the Militia which the Laws have ever setled upon the King 177. No peace can possibly bee had without the King ibid. No man can devise lands till he be 21 years of age 1. 84. An Infant of 17 years may dispose of goods by will by the opinion of some but by others not till 18. 181. The Court of Wards had no jurisdiction over the personall estate 185. Peace and plenty abounded during his Majesties Government 187. Since the two Houses have usurped the power the kingdom hath been in a sad condition 19. Nothing delivered in this book for Law but what the house of commons have avowed for Law this Session 194. The 24 positions of Law set out in divers books by the House of commons order p. 196. It is honourable to dye for the Laws 202. Good counsell for them if it be taken in time 203. That which will save this Land from destruction is an Act of Oblivion and his Majesties Gracious Generall pardon the Souldiers their Arrears and every man his own and truth and peace established in this Land and favourable regard had to the satisfaction of tender Consciences God save the King To the Honourable Societies of Grayes
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
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
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.
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
Lex terrae the Law of the Land there mentioned this Law bindeâ— all men and the House of Commons for they say they are of the Kings Councel in all points but only against the disturbers of the service of the Parliament and therefore the Imprison ment of severall persons who are not their Members for no disturbance to their Members is utterly against the Law of the Land and the Franchise of the Freemen of this Realme Cui non licet quod minus non licet quod Majus he who may not do what is lesse may not do what is greater they cannot commit a man for murder or Fellony much lesse for Treason No Court can fine and imprison 8. pars Cook 120 27. H. 6 8. but a Court of record the House of Commons is no Court of Record the House of the Lords where the King is in person his Nobles and his Iudges and Councell at Law the Masters of the Chancery assisting is a Court of Record and that is the Court of Parâ—ament where the Colloquium tractatus is The House of Commons may present Grievances grant or not grant Aides consent or not consent to new Lawes but for fining or imprisoning any but as aforesaid is but of a late date and no antient usage They have no journall Book but sithence Edw. 21. E. 4. fol 46. 6. time 6. Hen. 8 cap. 15. doth not prove the House of Commons to be a Court of Record it mentions only to be entred on Records in the Booke of the Clerke of the Parliament if any members depart into the Countrey Commons in Parliament ne sont Iudges There is no Journal but sithence Edw. 6. time and that is a Remembrance or memoriall as 12. H â—4 23 The whole Parliament is one corporate Body consilting of the Head and three Estates The Court is onely there where the Consilium tractaâ—us is where the consult and â—reaty is with the King which is in then House of Lords only The House of Commons claime not to examine upon Oath any Man 's no Court can be without a power to give an Oath Courts Baron 14. H. 8.3.36 H. 8. Dier 60.4 parâ— inst cap. 1 Court of Pipowders County Court may and doe give Oath no Court can be without a power to try no triall can be without Oath and therefore the house of Commons not claiming power to give an Oath can bring no matter to trial and consequently can be no Court. The behaviour of the Commons at a Conference with the Lords 〈◊〉 the Commons are alwaies uncovered and standing when the Lords fit with their hats on which shewes they are not Colleagues in judgment for fellow-judges owe no such reverence to their Companions When was ever Fine imposed by the House of Commâ—â—s â—â—â—â—ted in the 11. H. 4. c. 11. Exchequer The ejecting of a Member who hath sitten is against the Law for they cannot remove a man out of the House unduly returned much lesse a man returned duely By these Lawes it appeares 2. H. 4. c. d. 1. H. 5. c. 1. 8. H. 6. c. 7 23. H. 6. c. 15. that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is 200. l. one to the King another to the party that is duly elected Imprisonment for â—â—year without Ball or Mainprise 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 Desolutione feodorum Militum â—ivium burgensium Parliament And the triall of the â—alsity of the return is to be before the Justices of the Assizes in the proper County or by action of Debt in any Court of Record 3 Ed. 4.20 5 Ed. 4.41 This condemnes the Committee for undue Elections which hath beene practised but of late times for besides these Lawes it is against a Maxime in the Common-Law an Averment is not receivable against the returne of the Sheriffe for his Returne is upon Oath which Oath is to be credited in that Suit wherein the Returne is made The said Statures condemne and make those Members no Members which were not resiant in the County and Boroughs for which they were elected at the time of the teste of the Writ of the summons of the Parliament and any abusive practice of late times to the contrary is against the Law and ought not to be allowed Assault upon Parliamenâ— men If a Parliament-man 5 H. 4. c. 6.11 H. 6. c. 11. or his Meniall Servant be aslaulted beaten or wounded in the Parliament time proclamation shal be made where the deed is done that the Offender shall render himselfe to the Kings Bench within a quarter of a year after proclamation made the offeâ—ce there to be tryed for Default of appearance the Offender is declared attainted of the Misdeed and it is accorded that thereafter it be done likewise in the like case Serving of processe upon a Lord of the Parliament punished in the Lords House Bogo de Clare 18. E. 3.4 pars inst fol. 24 Io Thorn sbyes case Clerk of the Parl. punished ibid. 10. E. 3 Serving of processe upon Thornsby inquired of in the Chancery and there the Offenders were convicted The premises prove that breaches of priviledge of Parliament may be punished else were then in Parliament Vpon all this Discourse it is easie to decerne what fruits may be expected from this Parliament continuing as long as the two Houses please and that there is no safty for this common-wealth but by the observations of their antient Franchises customes and Lawes Conclusion I Say againe that without and Act of Oblivion a gratious generall pardon from his Majesty the arrears of the Souldiers paid a favourable regard had to tender consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing he hath AN APOLOGY FOR THE ARMY Touching the eight Quaeres c. LONDON Printed in the Yeare 1648. AN APOLOGY FOR THE ARMY THese Treasonable and insolent Quaeries make the Army the houses Subjects and not the Kings Bracton fol. 118. Stamford fol. 2. None by the Lawes of this Land can in this Kingdome have an Army but his Majesty It appeares the Army doth now evidently perceive that they were mis-led by the specious pretences of Salus populi the maintenance of the Kings Honour and of the maintenance of the Lawes of the Land and Liberties of the Subject to take up Armes against their naturall Liege Lord and Soveraigne the King the people is the Body the King is the Head Mag. Chart. c. 1. uit All the Act concerning the King Church and Church-men 25. Ed. 1. cap. 1. Was the Body safe when the Head was distressed and imprisoned For Lawes and Liberties have not the prevailing party in the two Houses destroyed above an hundred Acts of Parliament and in effect Magna Chartaâ— Charta de Forresta
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
England and having many adherents And that Statute to that end affirmes no such power in the two Houses which is the question but in Queene Elizabeth and the two Houses which makes against the pretence of this time Master Prynne fol. 104 of his booke intituled the Parliaments supreme power c. Objecting the Statute of the first of Queens Elizabeth and his owne Oath that the King is the onely supreame Goverhour of this Realme Answers The Parliament is the supreme power and the King supreme Governour And yet there he allowes him a Negaâ—ive Voyce and fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-Law to others who had no good Title then the Parlimentary Title makes not the King so powerfull in truth that it escapes from a man unawares To make a distinction betweene supreame Governour and supreame power is very strange for who can governe without power The King assembles the Parliament by his Writ adjournes Vide Speep 645.4 par Instit 27. 2. prorogues and dissolves the Parliament by the Law at his pleasure as is evident by constant practise the House of Commons never sate after an adjournement of the Parliament by the Kings Command Where is the supreame power The King by his Oath is bound to deny no man right 18 Ob. much lesse the Parliament to agree to all just and necessary Lawes proposed by them to the King This is the substance of the discourse against the Kings Negative Voyce The King is so hound as is set downe in the Objection Sol. but who shall judge whether the Bill proposed be just and necessary For all that they do propose are so pretended and carried in either House sometimes by one or two Voyces or some sew as aforesaid and certainly it hath been shewen the King his Counsell of State his Judges Sergeants Attorney Sollicitor and twelve Masters of the Chancery can better judge of them then two or three or few more Mr. Prynne fol. 45. In his Booke of the Parliaments interest to nominate Prnvy Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne Calvins case 7 pars fol. â—1 a stringe opinion and cites Calvins Case but leaves out the conclusions therein mentioned fol. 11. Master Prynne saith there But let this opinion be what it will without the Kings Grace and Pardon it will goe very farre and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Seale fol. 17. The Parliament hath no jurisdiction to use the Grear Seale for Pardons Generall or Particular Where is the supreme power then Mr. 19. Ob. Prynnes opening of the Seale pag. 19. saith the Noblemen and State the day after the Funerall of King Henry the third King Edward the first his Sonne being in the Holy Land made a new Great Seale and Keepers of the same And in Henry the sixts time in the first yeare of his Reigne the like was done in Parliament A facto all jus Sol. is no good Argument for than in Edward the firsts time it was no Parliament for King Henry the third was dead which dissolyed the Parliament if called in his time and it could be no Parliament of Edward the firsts time for no Writ issued to summon a Parliament in his Name nor could issue but under that New Seale it was so suddainely done afterâ— Henry the thirds death King Edward the first being then in the Holy Land it was the first yeare of his Reigne and no Parliament was held that yeare nor the second yeare of his Reigne The first Parliament that was in his Reigne was in the third yeare of his Reigne as appeares by the printed Acts Also the making of that Seale was by some Lords then present What hand had the Commons in it Concerning the Seale made in Henry the sixths time the Protector was vice-Roy according to the course of Law and so the making of that Seale was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protectour in the Kings Name summoned that Parliament and was Protector made by the Lords and not in Parliament as appeareth plainely for that Parliament was in the first of Henry the sixth and the first holden in his time and power given by Commission to the said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. But the new counterfeit Seale was made when the King was at Oxford in his owne Kingdome and not in the holy Land Mr. 20 Ob. Prynne in his Booke of the two Houses power to impose Taxes restraines Malignants against any Habeaâ— Corpus c. saith that the Parliament is above Magna Charta and fol. 15. ibid. The Parliament hath power over Magna Charta to repeale the same when there is cause This Argument supposeth that they have the Kings power Sol. which hath appeared formerly they have not But suppose they had Magna Charta containes many Morall Lawes which by the Law of the Land a Parliament cannot alter 21 H. 7.2 D. and Student 2 Dialogue For example it saith cap. 11. Justice shall not be sold delayed nor denyed to any man but by this Argument the Parliament may make Law to delay deny and to sell Justice which surely is a very ill position to maintaine What they would have doth now by the Propositions sent to Newcastie to his Majesty appeare whereby they would have him divest himselfe and settle in them all his Kingly power by Sea and Land and of themselves to have power without him to lay upon the people of this Land what taxes they thinke meet to abolish the Common prayer-booke to abolish Episcopacie and to introduce a Church Government not yet agreed but such as they shall agree on His Majesty finding a prevailing party in both Houses to steere this course and being chased away with Tumults from London leaves the Houses for these Reasons viz. First because to alter the Government for Religion is against the Kings Oath Secondly against their Oaths For every of them hath sworne in this Parliament That His Majesty is the onely supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly this course is against Magna Charta the 1. Chap. and the last Salve sint Episcopis omnes liber tales sue Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third the first Chapter enacts if any Statute be made to the contrary it shall be holden for none and so it is for judgements at Law in the 25 of Edward the 1. chap. 1.2 The great Charter is declared to be the Common Law of the Land Fourthly they endeavout to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Books of Common prayet settled by five Acts of Parliament and compiled by
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