a Corporation by the Common-Law 14 H. 8. f. 3. as the King Lords and Commons are a Corporation in Parliament and therefore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court or to keepe the peace 34 Ed 3.48 1 Ed. 4.2 The death of the King discontinues all Pleas by the Common-law 2 H. 4.8 1 H. 7.10 1 Ed. 5 1. which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed 6. 2 Ed. 6. c. 7. Patents or Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death where is the virtuall power All authority and jurisdiction spirituall and temporall is derived from the King 1 Ed. 6. c. 2. therefore none from the Housess His Majesties Subjects â— 3 Ed. 6. c. 2. 11 H. 7. c. 1. Calvins Case sâ— part Cooke 1 Pars instit 69. according to their bounden duties ought to serve the King in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for warre to be in the King It is most necessary both for common policy and duty of the Subject 5.6 Ed. c. 11. to restraine all manner of shamefull standers against their King which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity and universall weale of the Realme This condemnes their continuing of the weekely Pamphlets who have beene so foule mouthed against his Majesty The punishment of all offendors against the Lawes Q. â—â—ary 1. Mar. Pl. 2. cap. 2. belongs to the King and all jurisdictions do and of right ought to belong to the King This leaves all to his Majesty All Commissions to leavy men for the warre 4.5 P. M. c â— Q Eliz. 10 Eliz. Pl. 315. are awarded by the King The power of warre onely belongs to the King It belongs to the King to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sble governmeni de ses subjects Plow 234.242.213 Calvins case 7. pars fol. 12. Plow com 213. Corps naturall le Roy politique sunt un corps That is the king hath the sole government of his Subjects the body politick and the naturall body of the King make one body and not divers and are inseperable and indivisible The body naturall and politique make one body Plou 914.243.213 Calvins case 7. pars fol. 12 and are not to be severed Ligeance is due to the naturall body and is due by nature Gods Law and Mans Law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons 1 Eliz cap. 1 Candries case 5 pars fol. 1 at every Parliament takes a corporall Oath That the King is the supreame and onely Governour in all causes in all his Dominions otherwise he is no Member of that House The words of the Law are in all causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law 4â— Eliz. 3. pars instit fol. 6.2 Candries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors adjudged Treason by all the Judges of England To depose the King 39 Eliz. Hil. 1 Iacobi ibid or take him by force to imprison him untill he hath yeelded to certaine demands adjudged Treason and adjudged accordingly in the Lord Cobbams Case Atising to alter Religion established 39 Ed. Brad case f. 9. 16. By all the Judges of England ibid. 10. Eli. Plow 316 or any Law is treason so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24.3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Law makes not the servant greater then the Master nor the subject greater then the King for that were to subvert order and measure The Law is not knowne but by Usage and Usage proves the Law 10 Eliz. Plow 31â— and how Usage hath been is notoriously knowne The King is our onely rightfull and lawfull Leige Lord and Soveraigne K. Iames 1 Iac. cap. 1 9 Ed 4 fol 8 we doe upon the knees of our hearts adnize constant Faith Loyalty and Obedience to the King and his Royall progeny in this high Court of Parliament where all the body of the Realme is either in person or by representation We doe acknowledge hat the true and sincere Religion of he Church is continued and established by the King And doe recognize as we are bound by the Law of God and Man the Realme of England and the Imperiall crowne thereof doth belong to him by inherent birth-right and lawfull and undoubted succession and submit our selves and our posterities for ever untill the last drop of our blood be spent to his rule and beseech the King to accept the same as the first fruits of our Loyalty and faith to his Majesty and his posterity for ever and for that this Act is not compleat nor perfect without his Majesties assent the same is humbly desired This proves that the Houses are not above the King that Kings have not their titles to the Crown by the two Houses but by inherent birth right and that there can be no Statute without his expresse assent and destroyes the Chimera of the Kings virtuall being in the Houses To promise obedience to the Pope or any other State 3 Iae. cap. 4. 23 Eliz. c. 1. Prince or Potentate other then the King his heyres and successors is treason and therefore those persons who call the houses the Estates offend this Law Such Bils as his Majesty is bound in conscience and justice to passe K. Charles Collection of Ordinances fol. 727. 1 pars ib. fol. 728. are no Law without his assent To designe the ruine of the Kings person or of Monarchy is a monstrous and injurious charge Vbi lâ—x non distinguit non est distinguendum ibid. fol. 865. all the aforesaid Acts and Lawes do evidently prove the Militia to belong to the King that the King is not virtually in the two Houses that the King is not considerable separately in relation to his politick capacity that the King is not a person trusted with a power but that it is his inherent birth-right from God Nature and Law and that he hath not his power from the people These Lawes have none of those distinctions of naturall and politicke abstractum concretum power and person in Caesars time this Island had Kings and ever since which is almost 17 hundred yeares agoe No King can be named in any time made in this Kingdome by the people A Parliament never made King for they were Kings before the Parliaments are summoned by the Kings Writs which for Knights Citizens and Burgesses begins thus
THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins Prisoner in Newgate UPON Divers STATUTES Concerning the Liberty and Freedome of the Subject With a perfect Table thereto annexed Plebs sine Lege ruit LONDON Printed for J. Gyles and are sold at his shop at Furnivals-Inne MDCXLVIII Here JENKINS stands who thundring from the TOWER Shook the bold Senat 's Legislative Power Six of whose words twelve Reames of votes exceed As mountaines mov'd by graines of mustard-seed Thus gasping Lawes were rescu'd from the Snare He that will save a Crowne must know and dare Sould by I. Giles at Furnivals-Inn-gaw J. Berkenhead The Contents The Law of the Land The King Treason A Parliament The present Parliament Certaine Erroneus Positions and Proceedings of both Houses of Parliament The like of the House of Commons The Propositions of the Parliament of both Kingdomes sent to New-Castle The Kings Party The Parliaments Party are Delinquents The Army serving the two Houses The Army Rescuing the King The Liberty of the Subject Messellanâ—a The Law of the Land THE Law of the Land hath for its ground 1. Custome 2. Judiciall Records 3. Acts of Parliament The two latter being Declarations of the Common Law and custome of the Realme pag. 5.21.23 The Law of Royall Government is a Law Fundamentall p. 5. The Kings Prerogative and the Subjects Liberty are determined and bounded by the Law p. 131. The King claimes no power but by the law of the land p. 131. The Law the onely Rule and Direction of the Subject in this present Warre pag. 42 131. Vbi Lex non distinguit â—bi non est distinguendum p. 132. The King THE King of England hath his Title to the Crowne and to his Kingly Office and Power not by way of trust from the two Houses of Parliament or from the people but by inherent Birth-right from God Nature and the Law p. 24 25. 38. 52 53 54 56. 57. There was never King Deposed but in tumultuous and madde times and by the power of the Armyes and they who were to bee the succeeding Kings in the head of them as Ed 3. and Hen. 4. p. 54. Usurpers were Kings de factâ— not de jure p. 54. The King is assisted by the advice of the Judges his Counsell at Law Sollicitor Atturney Masters of Chancery and counsell of State hence the Law hath setled severall Powers in the King p. 27.28 The Kings of England enjoyed that Power in a full measure till King Iohns time p 6 7 8. How Rights of Soveraignty continued in practise from Hen. 3. till 1640 p. 6. The Kings Power not separable from his Person p. 70 71. The Body Naturall and Politique in the King make but one body p. 2.38.71 Every Subject swears homage to the King p. 8. The Law gives reverence to the Person of the King p. 10. Foule mouthed Pamphlets against the King condemned p. 21. The Supream Power is in the King p. 7.13.14.16.57 58. The Oath of Supremacy in relation to the Parliament p. 67.133 The King Supream in Ecclesiasticall causes p. 10. The King the onely Supreame Governour and all other persons have their power from him by his Writ Patent or Commission p. 20 21 22.36 37. 64 65. The power of the Militia is in the King p. 8.37 In the time of Parliament p. 8. The Commission of Array in force p. 13.36 The Power of making League with Forreigners is in the King p. 8.15.17 The power of War in the King p. 20.21 The power of making Officers in the King p. 8. The King onely hath power to make Justices of Peace and of Assize p. 45 100.12â— The power of coynadge in the King p. 8. The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130 The King hath power to remove the courts at Westminster p. 45. The King can do no wrong but his Judges Counselloâ—â—s and Ministers may p. 37.41 So long as men manage the Laws they will be broken more or lesse p. 29. Treason IN the Reign of Ed. 2. the Spencers the Father and the Sonne to cover their Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Allegiance was more by reason of the Kingâ— Crowne that is his Politique Capacity than by reason of his person upon which opinion they inferred three execrable and detestable Consequences First if the King do not demeane himselfe by reason in the right of his Crowne his Leidges are bound by Oath to remove the King Secondly seeing the King could not be reformed by suit of Law that ought to be done per asperte that is by force Thirdly his Leidges be bound to Governe in aid of him and in default of him p. 9.70 Severall Treasons by the Statute 25. 8d 3. p. 12 13 14 15 16 76. The word King in the 25. Edw. 3. must be understood of the Kings natural Person p. 12 13 77. Other Treasons not specified in that Act are declared to bee no Treasons untill the King and his Parliament shall declare otherwise p. 77.101 To seize the Kings Forts Ports Magazine of Warre is High Treason p. 11. 22â— 37.77 To remove Counsellours by Arms is high Treason p. 22.40 To leavie Warre to alter Religion is high Treason p. 40. To leavie war to alter the Law is high Treason p. 11.40.77 To counterfeit the great Seal is high Treason p. 37. To adhere to any State within the Kingdom but the Kings Majesty is high Treason 24.39 To imprison the King untill hee agree to certaine demands is high Treason p. 1â— 22.77 They who imprison the King purpose to destory him p. 163. Deposers of the King adjudged Traitors by the Law of the Land p. 54. A Body Corporate cannot commit Treason but the persons can p. 16. Noble men committing Treason forfeit their Office and Dignity p. 143. Treason how punished by the Law p. 42. Treason doth ever produce fatall destruction to the Offender and never attaines to the desired end and there are two incidents inseparable thereunto p. 135. A Parliament THe word Parliament cometh from the French word Parler to Treat p. 81. The King is Principium Caput Finis Parl. p 26.48.122 The King assembles the Parliament by his Writ Adjournes Prorogues and dissolves the Parliament by the Law at his pleasure p. 57. The Writ whereby the King assembled the two Houses which is called the Writ of Summons at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peers to Consult and Treat with the King that is the Parler of great Concernments touching 1. The King 2. The defence of this Kingdome 3. The defence of the Church of England p. 24.34 p. 25.81.120 121. Counsell is not command Councellors are not Commanders p. 26. The Writ of summoning the Judges Counfell of Lâ—w and 12 Masters of Chancery is to appeare and attend the Parliament to give Counsell p.
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
Roys ' avisera or nâ— veulâ— it was against Magna Charta Articuli Cleri and many other Acts of Parliament And might have farther given these reasons if it had so pleased him for the same First that this Bill destroyes the Writ whereby they are made two Houses of Parliament 14 Hen. 7. fol. 22. Evesque est signior de grand honneâ—r the King in the Writ being â—um praelaris colloquium habtre Secondly they have been in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have been Bishops here sithence we were Christians and the Fundamentall Law of the Kingdome approves of them If any of them were conceived offensive they were left to Justice and his Majesty would put in inoffensive men in their places but sithence his Majesty hath passed the Bill for taking away their Vores in Parliament it is a Law that bindes us so farre Upon the whole matter the Law hath notably determined that Billa agreed by both Houses pretended to be for the publick good are to be judged by the King for in all Kings Reignes Bils have been preferred by both Houses which alwaies are pretended to be for the publique good and many times are not and were rejected with Roy's auisera or Roy ne veult This Parliament began the 3 of Novemb. 1640. before that time in all the kings reign no armed power did force any of the people to doe any thing against the Law what was done was by his Judges Officers Refers and Ministers from that time untill the 10. os Ia. 1641. when the King went from London to avoyd the danger of frequent tumults being a year and 3 months Privie Counsellors and all his Justices Ministers were lest to the Justice of the Law there wanted not time to punish punishable men The Sphere of the House of Commons is to represent the grievances of the Countrey to grant aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating of Lawes The Orb of the House of Lords to reforme erroneous judgements given in the Kings Bench to redresse the delayes of Courts of Justice to receive all Petitions to advise his Majesty with their Councell to have their Votes in making or abrogating of Lawes and to propose for the common good what they conceive meet Lex non cogit ad impossibilia Subjects are not to expect from Kings impossible things so many Judges Councellours Sheriffes Justices of the Peace Commissioners Ministers of State that the King should over-looke them all cannot be it is impossible The King is vertually in his ordinary Courts of Justice so long as they continue his Courts their charge is to administer the Lawes in being and not to delay deferre oâ— sell Justice for any Commandment of the King We have Lawes enough Instrumenta boni saeculi sunt bonâ— viri good Ministers as Judges and Officers are many times wanting the houses propose new Lawes or abrogation of the old both induce novelty the Law for the reasons aforesaid makes the King the onely Judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings Party adheared to him the â—aw of the Lnnd is their Birth-â—ight their Guide no offence is committed where that is not violated they found the Commission of Aâ—â—ray warrauted by the Law they found the King in this Parliament to have quitted the Shâ—-money Knighthood-money seven Courts of Justice consented to a Triennall Parliament setled the Forrest hounds tooke away the Cearke of the Market of the houshold trusted the House with the Navy passed an Act not to dâ—â—olve this Parliament without the Houses assent no people in the world so free if they could have been content with Lawes Oathes and reaâ—â—â— and nothing more could or can be devised to secure us neither hath been in any time Notwithstanding all this we found the King driven from London by frequent tumults that two thirds an dt more of the Lords had disserted tha House for the same cause and the greater part of the House of Commons left that House also for the same reason new men chosen in their places against Law by the pretended Warrant of a connterfet Seale and in the Kings name against his consent leavying Warre against him and seizing his Ports Forts Magazines and Revenue and converting them to his destruction and the subversion of the Law and Land laying Taxes on the people never heard of before in this Land devised new Oathes to oppose Forces raised by the King nor to adhere to him but to them in this Warre which they call the 〈◊〉 the Oath and the V. W. and Covenant By severall wayes never used in this kingdome they have raised Monies to foment this Warre and especially to inrich some among them namely first Exâ—is secondly Contributions thirdly Sequestrations fourthly Fift-parts fiftly Twentieth-parts sixtly 〈◊〉 money seventhly Sale of Plundered gpods eightly Loanes ninthly Benedolentes tenthly 〈◊〉 upon their fast-dayes eleventhly new Impoâ—tions upon Merchandâ—res twelfely Gâ—ards maintained upon the charge of private men thirteenthly Fifty Subâ—â—dies at â—â—e time fourteenthly Compossâ—â—ons with such as they call Delinquents fifteentlaly Sale of Bishppâ— Lands c. From the Kings Party meanes of subsistance are taken 〈◊〉 R 3. cap. 3 Bract. li. 3. c. 8. Stanford 192. Sir Ger. Flâ—â—twoods Case S. pars Cook 7. H. 〈◊〉 â—ast leafe before any Indictment their Lands seized their goods taken the Law allowes a Traytor or Fellon attained Necessaria sibi familiae suae invictu vestitu where iâ— the Covenant Where is the Petition of Right Where is the liberty of the Subject First we have ayded the King in this Warre contrary to the Negative Oath and other Votes Our Warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly 〈◊〉 Insâ—it a 25. a Instit 696 The Law so at the Edition of that booke Hutton and Crook we have maintained the Commission of Array by the Kings Command contrary to their Votes We are warranted by the Statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the â—â—cle of the Law as they call him Thirdly we maintained Archâ— Bishoâ—â— and Bishops whom they would suppresse Our warrant is Magna-Charta and many Statutes more Fourthly we have maintained the Booke of Common mayâ—r they suppresse it Our warrant is five acts of Parliament in Edward the fixt and Queene Elizabeths time 5 Pelchae 35 Elizabeth inter placita Coronae in Banâ—â— Regis New booke of Entries fol. 252. Penry for publishing two scandalous Libels against the Church Government was indicted arraigned attainted and executed at Tyburne Fiftly we maintained the Militiâ—â— of the Kingdome to belong to the King they the contrary Our warrant is the Statute of the seventh of Edward the first and many Statutes â—â—thence
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
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