said King to allow them in the seventeenth of King Iohn the said Liberties were by King Iohn allowed and by his son Hen. the third after in the ninth yeere of his Reigne confirmed and are called Magna Charta and Charta de Foresta declared foure hundred twenty two yeeres sithhence by the said Charters Now rests to be considered after the Subjects had obtained their Rights and Liberties which wâ—nâ— no other then their ancient Customes and the fundamentall Rights of the King as Soveraigne are no other How the Rights of Soveraignty continued in practise from Henry the thirds time untill this present Parâ—â—ament of the third of November 1640. for before Henry the thirds time the Soveraignty had a very full Power Rex habet Potestatem jurisdictionem super omnes qui in Regnosuo sunt ea quae sunt jurisdictionis Pacis ad nullum pertinent nisi ad Regiam dignitatem â—reacton temps H. 3. lib. 4. cap. 24. Sect 1 habet etiam coeroionem ut Delinquentes puniat coerceat This proves where the supreame Power is A Delinquent is hee who adheres to the Kings Enemies Com Sur. Littl. 261. This shewes who are Delinquents Omnis sub Rege ipse sub nullo nisi tuntum Deo non est inferior sibi Subjectis Sect 5 Bractabid non parem habet in Regnosuo This shewes where the supreame power is Rex non habet superiorem nisi Deum satis habet ad poenam quod Deum expectat ultorem Bracton lib. 5. tract 3. de de saltis Cap. 3. Bracton Lib 3. Cap. 7. This shewes where the suprerme power iâ— Treasons Fellonies and other Pleas of the Crowne are propriâ— causa Regis This shewes the same power By these passages it doth appeare what the Custome was for the power of Soveraignty before that time the power of the Militia of coyning of Money of making Leagues with forreigne Princes the power of Pardoning of making of Officers c. All Kings had them the said Powers have no beginning Sexto Ed 1. Comsur Littl. 85. Liege Homage every Subject owes to the King viz Faith de Membre Ewd. 1. de vita de terrenâ— Honore the forme of the Oath inter vetera statuta is set down We read of no such or any Homage made to the two Houses but frequently of such made by them It is declared by the Prelates Earles Barrons and Commonalty of the Realm that it belongeth to the King and his Royall Segniory 7. Ed. 1. statuts at largeâ—â—l 42. straitly to defend force of Armour and all other force against the Kings peace at all times when it shall please him and to punish them that shall doe contrary according to the Law and Usage of the Realme and hereunto they are bound to ayde their Soveraigne Lord at all seasons when need shall be Here the supreame power in the time of Parliament by both Houses is declared to belong to the King At the beginning of every Parliament all Armes are or ought to be forbidden to be born in London 7. Ed. 2.4 pars instit 14. 1 Ed. 2. de Militibus Westminster or the Subburbs This condemnes the multitudes comming to Westminster and the Guards of armed men All who held by Knights-service and had twenty pounds per 〈◊〉 were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued cerâ—â—â—ntly in all Kings times but at this Parliament 3. November 1640. The King out of his grace discharged this duty which proves that the power of warre and preparation thereto belongs not to the two houses but only to the King The two Spencers in Ed. 2. Ed 3. Calvins Case Cook l. 7. fol. 1 time hatched to cover their Treason this damnable and damned opinion viz. That Ligeance was more by reason of the Kings politique capacity then of his person upon which they inferred these execrable and detestable consequences First if the King demeaned not himselfe by reason in the right of his Crown his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suit of Law it was to be done by force Thirdly that his Lieges be bound to govern in default of him All which tenets were condemned by two Parliaments the one called exilium Hugonis in Ed. 2. time the other by 1. Ed. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute the Articles are extant in the booke called vetera Statuta The separation of the Kings person from his power is the principall Article condemned and yet all these three damnable detestable and execrable consequents are the grounds whereupon this present time relies and the principles whereupon the two Houses found their Cause The Villeine of a Lord in the presence of the King Plowdon com 322 27. ass pl. 49. 33 Ed. 3â— ayde derâ—y 103 Fitz. 10 H. 7 16. cannot be seized for the presence of the King is a protection for that time to him This shewes what reverence the Law gives to the person of a King Reges sacro oleo uncti sunt capaces spirituallis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote habet Ecclesiasticam spititualem jurisdictionem This shewes the Kings power in Ecclesiasticall Canses The lands of the King is caled in Law Patromonium sacrum Com. Sur Littl Sect 4. 3. Ed. 3. 19 The houses should not have meddled with that sacred Patrâ—â—â—â—y The King hath no Peere in his land and cannot be judged Ergo the two Houses are not above him The Parliament 15. Ed. 3 was repealed for that it was against the Kings Lawes and prerogative 4 pars instit fol. 52. this shewes cleerely the propositions sent to Newcastle ought not to have been presented to his Majesty for that they are contrary to the Lawes and his Prerogative The Lords and Commons cannot assent in Parliament to any thing that â—ends to the disinherision of the King and his Crowne 4 pars Cookes instit fol. 14 42. E. 3. Parliament Rol. num 7. Lex consuetudo Parliamenti to which they are sworn This condemnes the said Propositions likewise To depose the King to imprison him untill he assent to certaine demands A war to alter the Religion established by Law or any other Law or to remove Councellors to hold a Castle or Fort against the King are offences against that Law declared to be treason by the resolutions herein after mentioned by that Law men are bound to ayd the King when war is levied against him in his Realme 25. Ed. 3. cap. 2. King in this Statute must be intended in his naturall body and person that only can die for to compass his death and declare it by overt Act is declared thereby treason to incounter in fight such as come to ayd the King in his wars is treason Compassing of the
SEVERALL PAPERS Lately VVritten and Published by IUDGE IENKINS Prisoner in the Tower viz. 1. His Vindication 2. The Armies indempnity with a Declaration shewing how every Subject ought to be tryed for Treasons Felonies and all other Capitall Crimes 3. Lex Terrae 4. A Cordiall for the good people of London 5. A Discourse touching the inconveniences of a long continued Parliament 6. An Apologie for the Army ANNO 1647. The Vindication of Iudge Jenkins Prisoner in the Tower the 29. of Apr. 1647. I Was convened upon Saturday the 10. of this moneth of Aprill before a Committee of the House of Commons wherein Master Corbet 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 was set down in a paper I then delivered to the said M. 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 Houses by adhering to the King in this War 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 Power 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 doe I am sworne to obey the King and the Laws of this Land you have not power to examine me by those Laws by the Kings Writ Patent or Commission if you can produce either thereof I will answer the questions you shall propound otherwise I cannot answer thereto without the breach of my Oath and the violation of the Lawes which I will not doe to save my life You your selves all of you this Parliament have 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 publish 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 only supreame Governour the Fountaine of justice and the life of the Law the King The Parliaments are called by his writs the Judges sit by his Pattents so of all other Officers the Cities and Towns corporate governe by the Kings Charters and therefore since by the Law I cannot be examin'd by you without a power derived by His Majesty I neither can nor will nor ought you to examine me upon any question But if as private Gentlemen you shall be pleased to aske me any questions I shall really and truly answer every such question as you shall demand Aprill 10. 1647. David Jenkins This paper hath been mis-represented to the good people of this Citie by a Printed one styling it my Recantation which I owne not and besides is in it selfe repugnant just like these times the Body falls out with the Head To vindicate my selfe from that Recantation and to publish to the world the realitie of the Paper then delivered to M. Corbet and the matter therein contained I have published this ensuing discourse No person who hath committed Treason Murder or Felony hath any assurance at all for so much as one houre of life Lands or Goods without the Kings gracious pardon 27. Hen. 8. Cap. 24. The King is not virtually in the two Houses at Westminster whereby they may give any assurance at all to any person in any thing for any such offence 1. The House of Commons hath declared to the Kingdome in their Declarations of the 28. of November last to the Scots Papers pag. 8. That the King at this time is not in a condition to governe 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 governe which they declare he hath not himselfe to give 2. 5. Elizab. Cap. 1. The Law of the Land is That no person in any Parliament hath a voice in the House of Commons but that he stands a person to all intents and purposes as if he had never beene elected or returned if before he sit in the House he take not his Oath upon the holy Evangelists that the Kings Majestie is the only and supream Governour over all persons in all Causes All the Members of the said House have taken it and at all times as they are returned doe take it otherwise they have no colour to intermeddle with the publicke Affaires How doth this Solemne and Legall Oath agree with their said Declaration That the King is in no condition to governe By the one it is sworne He is the only supreame Governour by the other that he is not in a condition to governe 2. The Oath is not that the K. 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 is our onely and supreame Governour at this present in all Causes and over all persons So they the same persons sweare one thing and declare to the Kingdom 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 doe not say what they sweare in the House of Commons Whoever heard sâ—thence this unnaturall Warre any of their Presbyters attribute that to His Majestie 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 onely and supreame Governour in all Causes is contrary to that the Houses doe now practice and to all they act and maintaine They the two Houses forsooth are the onely and supreame Governours in default of the King for that he hath left his great Councell and will not come to them and yet the King desires to come but they will not suffer him but keepe him prisoner at Holmby so well doe their Actions and Oathes agree 5. They sweare now King CHARLES is their onely and supreme Governour but with a resolution at the time of the Oath taking and before and after that he shall not be onely or supreme Governour or onely and supreme 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 onely to abuse and deceive the people 6. That this virtuall power is a meere fiction their Propositions sent to Oxford to Newcastle to be signed by the King doe prove it so What needs this adoe if they have the virtuall power with them at Westminster 7. To affirme that the Kings power which is the virtue they talk 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 Coke so much magnified by this present Parliament who in the 7. part of his Reports in Calv. Case fo 11. saith thus In the reigne of Edward the second the Spencers the Father and Son to cover the Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Ligeance was more by reason of the Kings Crowne that is of his politicke capacity then by reason of the person of the King upon which opinion they inferred 3. execrable and detestable consequences 1. If the King doe not demeane himselfe by reason in the right of his Crowne his lieges are bound by Oath to remove the King 2. seeing that the King could not be reformed by suit of Law that ought to be done per aspertee that is by force 3. That his lieges be bound to governe in aid of him and in default of him All which were condemned by two Parliaments one in the raigne of Edw 2. called exilium Hugonis le Spencer and the other in Anno 1. Edw. 3. cap. 2. And that the naturall body and politicke makes one indivisible body and that these two bodies incorporate in one person make one body and not divers is resolved as the Law of England 4. Eliz. Ploydon Com. fol. 213. by Sir Cobert Catlin Lord Chiefe Justice of England Sir James Dier Lord Chief Justice of the Common Pleas the Lord Sanders Lord Chiefe Baron of the Exchequer and by the rest of the Judges viz. Justice Rastall Justice Browne Justice Corbet Justice Weston Baron Frevyll Conne and Pewdrell Sergeant Gerrard Atturny Generall Carreâ— Atturny of the Dutch Plowdon the learnedst man of that age in the knowledge of the Law and Customes of the Realm 8. The Law in all ages without any controversie is and hath beene That no Act of Parliament bindes the Subjects of this Land without the assent of the King either for person Lands Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the vertuall Power be in the Houses there needes no assent of the Kings The stiles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either 9 Hen. 3. Magna Charta So in every age till this day and in every Kings time as appears by the Acts in Print 1 part of the Instit Sect. 234. in fine where many of the Law-Bookes are cited 7. H. 7.14.12 of Hen. 7.20 The King ordaines at his Parliament c. or the King ordaineth by the advice of his Prelats and Barons and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath sithence continued thus It is ordained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law-Bookes call the King the Fountaine of Justice and the life of the Law 9. 2. H. 4. c. 22. 4 pars instit 42. M. Prin in his Treatise of the great Seale Fol. 17.27 Hen. 8. Chap. 24. Mercy as well as Justice belongs by the law of the Land only to the King This is confessed by Master Prynn and it is so without any quection The King can only pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27 Hen. 8. Cap 24. 10. Queene Elizabeth summoned her first Parliament to be held the 23. of January in the first yeare of Her Majesties Raigne The Lords and Commons assembled by force of the same writ the 23. day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25. of the same Month of January Resolved by all the Judges of England 3 Of Eliz. Dier 203. that the Parliament began not the day of the returne of the writ viz. the 23. of January when the Lords and Commons appeared but the 25. of the said moneth when the Queen came in person Which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sense They have the King now a prisoner at Holmby with guards upon him and yet they governe by the vertuall Power of their Prisoner These are some of the causes and reasons which moved me to deliver that paper to Master Corbet which I am ready to justifie with my life and should hold it a great honour to die for the honourable and holy Lawes of the Land That which will save this Land from destruction is an Act of Oblivion and His Majesties gracious generall pardon the Souldiers their Arears and every man his owne and Truth and Peace established in the Land and a favourable regard to the satisfaction of tender Consciences Aprill 29. 1647. David Jenkins THE ARMIES INDEMNITY With Addition Together With a Declaration shewing how every Subject of England ought to be tried for Treasons Felonies and all other Capitall Crimes as it is set down in the Lawes of the LAND By David Jenkins now Prisoner in the Tower of LONDON Printed in the Yeare 1647. The Armies Indemnity c. UPon the publishing of the Ordinance of the 22. of May last for the Indemnity of the Army certain Gentlemen well affected to the peace of the Kingdome and safety of the Army desired me to set downe in writing whether by the Law of the Land the said Ordinance did secure them from danger as to the matters therein mentioned For whose satisfaction in a businesse wherein the lives and fortunes of so many men were concerned and the Peace of the Kingdome involved I conceived I was bound in duty and conscience faithfully and truly to set downe what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Army by the Law of the Land is apparent to all men 25. Ed. 3. c. 11. 2 Ri. 2. cap. 3. 1 Hen. 4. c. 10. 1 and 2. Phil. and Mary c. 10 It is high Treason by the Law of the Land to leavy warre against the King to compasse or imagine his death or the death of his Queene or of his eldest Sonne to counterfeit his Money or his great Seale They are the words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and
the Lawes be violated And no reflection to be made on the King All Counsellors and Judges for a yeare and three months untill the tumults began this Parliament were all left to the ordinary course of Justice what hath beene done sithence is notorious For great Causes and considerations an act of Parliament was made for the surety of the said Kings person R. 3 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the houses have greater reason to care for the preservation of his Majestie The Subjects are bound by their allegiance to serve the King for the time being against every Rebellion power and might H. 7. 11 H. 7. cap. 1. reared against him within this land that it is against all lawes reason and good canscience if the King should happen to be vanquished that for the said deede and true duty and alligeance they should suffer in any thing it is ordeined they should not and all acts of processe of law hereafter to be made to the conteary are to be void This law is to be understood of the naturall person of the King for his politique capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this act It is no statute if the King assent not to it 12 H. 7.20 H. 8. and he may disassent this proves the negative voice The King hath full power in all causes to doe justice to all men this is affirmed of the King 24 H. 8. cap. 1â— 25 H. 8. cap. 2â— and not of the two Houses The commons in Parliament acknowledg no superior to the King under God the houses of Commons confesse the king to be above the representative body of the Realme Of good right and equity the whol sole power of pardning treasons fellonies c. belong to the King 27 H. 8. cap. 24 Note as also to make all Justices of Oyer Terminor Judges Justices of the peace c. This law condemns the practise of both houses at this time The kings royall assent to any Act of Parliament signed with his hand expressed in his Letters-patents under the great Seale and declared to the Lords and Commons shall bee as effectuall 33 H. 8. cap. 21 as if he assented in his owne person a vaine act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principâ—ll members of the body Dier 38. H. 8 fo 59.60 the Commons the inferior members and so the body is composed therefore there is no more Parliament without a king then there is a body without a head There is a corporation by the Common-law as the King Lords 14 H. 8 fol. 3. and Commons are a corporation in Parliament therfore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court 24 Ed. 3.48 1 Ed. 4.2 2 H. 4.8 1 H. 7.10 1 Ed 5.1 or to keepe the Peace The death of the King discontinues all pleas by the Common-law which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed. 6. 1 Ed. 6. cap. 7. Patents of Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death Where is the virtuall power All authority and jurisdictions spirituall and temporall is derived from the King 1 Ed. 6. cap. 2. therefore none from the Houses His Majesties subjects 2. 3 Ed 6. ca. 2 11 H. 7. cap. 1. Calvins Case Sa. pars Cooke according to their bounden duties ought to serve the king in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for war to be in the king It is most necessary both for common policy and duty of the subject 5. 6 Ed. cap. 11 to restrain all manner of shamefull standers against their king which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity universal weale of the realm This condemns their continuing of the weekely pamphlets who have been so foule mouthed against his Majesty The punishment of all offenders against the lawes belongs to the king Q. Mary 1 Mar. Pl. 2. c. 2 and all jurisdictions doe and of right ought to belong to the King This leaves all to his Majesty All Commissions to levy men for the warre 4 5 P M. c. 3 Q. Eliz. 10 Eliz pl 315 are a warded by the king The power of warre only belongs to the king It belongs to the king to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sole government deâ—ses subjects Plow 234.242 213. Calvins case 7. pars fol 12. Plow com 213 Corps naturall le Roy politique sunt un corps that is The king hath the sole government of his Subjects the body politique and the naturall body of the king make one body and not divers and are inseparable and indivisible The body naturall and politique make one body and are not to be severed Ligeance is due to the naturall body Plow 934 243.213 Calvins case 7. pars fol. 12. and is due by nature Gods Law and Mans law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons at every Parliament takes a corporall Oath 1 Eliz. cap. 1. Cawdries case 5. pars fol. 1. That the King is the Supreme and only Governour in all Causes in all his Dominions otherwise he is no Member of that House the words of the Law are In all Causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law Cawdries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors 43 Eliz. 3 pars instit fo 6.2 adjudged Treason by all the Judges of England To depose the king or take him by force to imprison him untill he hath yeelded to certain demands adjudged Treason 39. Eliz. Hil. 1 Jacobi ibid. and adjudged accordingly in the Lord Cobhams Case Arising to alter Religion established or any Lawe is Treason 39 Ed. Bâ—adf case f 9. 16. By all the Judges of England ibid. 10 Eliz Plow 316. so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24. 3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Lawe makes not the servant greater then the Master nor the subject greater then the King for that were to subvert Order and Measure The Law is not knowne but by Usage 10 Eliz. Plow 319. and Usage proves the Law and how Usage hath been is notoriously knowne The King is our only Rightfull and lawfull Liege Lord and Soveraigne K. James 1 Jac. cap. 1. 9 Ed. 4. fol. 8. We
Jan. 1641. as aforesaid being a yeare and almost three moneths had time and liberty to question all those persons who were eyther causes or instruments of the violation of any of the Lawes Examine how both Houses remedied them in former times First touching Religion What hath beens done this way Both houses in Henry the eights time tendred to him a Bill to bee passed called commonly the Bill of the six Articles this was conceivd by them to be a just and a necessary Bill Had not Henry the eighth done well to have refused the passing of this bill both houses tendred a bill to him to take the reading of the Scriptures from most of the laity had not King Henry the eight deserved much prayse to reject this bill In Queene Maryes time both houses exhibited a bill to her to introduce the Popes power and the Roman Religion had not Queen Mary done well to have refused this bill Many such instances may be given The two Houses now at Westminster I am sure will not deny but the refusall of such Bills had beene just the King being assisted as aforesaid and why not so in these times For the Civill Government what a bill did both houses present to Richard the third to make good his title to the Crowne had it not beene great honour to him to have rejected it what bills were exhibited to Henry the eight by both houses for bastardizing of his daughter Elizabeth a Queene of renowned memory to settle the Crowne of this Relme for default of Issue of his body upon such persons as he should declare by his letters Patents or his last will and many more of the like had not this refusall of passing such bills magnified his vertue and rendred him to posterity in a different Character from what he now hath And by the experience of all times and the consideration of human frailty this conclusion is manifestly deduced that it is not possible to keepe men at all times be they the houses or the King and his councell but there will be sometimes some deviation from the Lawes and therefore the constant and certain powers fixed by the ancient Law must not be made void and the Kings Ministers the Laws do punish where the Law is transgressed and they only ought to suffer for the same In this Parliament the houses exhibited a bill to take away the suffrages of Bishops in the upper house of Parliament and have sithence agreed there shall be no more Bishops at all might not the King if he had so pleased have answered this bill with Le Roy s'avisera or no voult 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 writt whereby they are made two houses of Parliament the King in the writt to the Lords being Cum praelatis colloquium habere secondly they have beene in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have beene 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 Majestie would put in inoffensive men in their places but sithence his Majestie hath passed the Bill for taking away their votes in Parliament it is a Law that binds us so farr Upon the whole matter the Law hath notably determined that Bills agreed by both houses pretended to be for the publique good are to be judged by the King for in all Kings reigns Bills have been preferred by both houses which all wayes are pretended to be for the publique good and many times are not and were rejected with Roy s'avisera or Roy ne veult This Parliament beganne the third of November 1640 before that time in all the Kings reigne no armed power did force any of the people to do any thing against the law what was done was by his Judges officers Referees and Ministers from that time untill the tenth of January 1641 when the King went from London to avoyde the danger of frequent tumults being a yeare and three months Privy Councellors and all his Justices and ministers were left to the Justice of the law there wanted 〈◊〉 time to punishable men The Sphaere of the house of Comment 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 eroneous judgements given in the Kings Bench to redresse the delayes of Courts of Justice to receive all Petitions to advise his Majestie with their Councell to have their votes in making or abrogating of Lawes and to propose for the common good what they conceive meete Lâ—x 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 virtually in his ordinary Courts of Justice so long as they continue has Courts their charge is to administer the lawes in being and not to delay defarre or sell-justice for any commandement of the King We have Lawes enough â—â—stâ—uâ—â—â—ta bâ—â—i saculi sunt boni 〈◊〉 good ministers as Judges and officers are many times wanting the houses propose now Lawes or abrogation of the old both induce novelty the law for the reasons aforesaid makes the King the only Judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings party adhered to him the law of the Land is their birth-right their guide no offence is committed where that is not violated they found the commission of Array warranted by the law they found the King in this Parliament to have quitted the Ship-money Knighthood-money seven Courts of Justice consented to a trienniall Parliament setled the Forest bounds tooke away the Clerke of the Market of the houshold trusted the house with the Navie passed an Act not to dissolve this Parliament without the Houses assent no people in the world so free if they could have been content with Lawes oathes and reason 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 and more of the Lords had disserted that 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 counter set Seale and in the Kings name against his consent levying 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 ray fed by the King not to adhaere to him but to them in this Warre which they call the Negative Oath and the Vow and Covenant By severall wayes never used in this Kingdome they have raised monies to foment this warre and especially to inrich some among them namely first Excise secondly Contributions thirdly Sequestrations fourthly Fift parts fiftly Twentieth Parts fixtly Meale-money seventhly Sale of Plundered goods â—ightly Loanes ninthly Benevolences tenthly Collections upon their Fast-dayes eleventhly new Inpositions upon Merchandizes twelvethly Guards maintained upon the charge of private men thirteenthly Fifty Subsidies at one time fourteenthly Compositions with such as they call Delinquents fifteenthly Sale of Bishops lands c. From the Kings party meanes of subsistance are taken 1 R. 3. cap. 3. â—ract li. 3. c. 8. Stanford 192. Sir Ger. Fleetwoods Case 8. pars Cook 7. H. 4 last lease before any indictment their Lands seized their goods taken the Law allows a Traytor or Fellon attainted Necessaria sibi familie sua in victâ—â— vâ—stitu where is the Covenant where is the Petition of light where is the liberty of the subject First We have ayded the King in this warre contrary to the negative oath and other votes Our warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly Wee have maintained the Commission of Array by the Kings Command contrary to their votes We are warranted by the statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the Oracle of the Law as they call him Thirdly We maintained Arch-Bishops and Bishops whom they would suppresse Our warrant is Magna Charta and many statutes more Fourthly we have maintained the booke of Common prayer they suppresse it Our warrant is five acts of Parliament in Edward the sixt and Queene Elizabeths time 5. Peschâ— 35. Elizabeth inter placita Coronae in Banco Regis New booke of Entries sol 252. Penry for publishing two scandalous Libels against the Church government was indicted arraigned attainted and executed at Tyburne Fifthly We maintained the Militia of the Kingdome to belong to the King they the contrary Our warrant is the statute of the seventh of Edward the first and many statures sithence the practise of all times and the custome of the Realm Sixthly We maintained the counterfeiting of the great Seale to be high Treason and so of the usurpation of the Kings Forts Ports Shipping Castles and his Revenue and the Coyning of money against them We have our warrant by the said statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Seventhly We maintaine that the King is the only supreme govermour in all causes They that his Majesly is to be governed by them Our warrant is the statures of the first of Q. Eliza. Chapter the first and the fifth of Q. Elizabeth the first Eighthly 9. Ed. 4. sol 4. Wee maintaine that the King is King by an inhaerent birth-right by nature by Gods law and by the layâ— of the Land They say his Kingly right is an 〈…〉 Our warrant is the statute of the first of King Jaâ—â—â— Chapter the first And the resolution of all the Judges of England in Calvins case Ninthly We maintain that the politick capacity iâ— not to be severed from the naturall They hold the contrary Our warrant is two flatures viz. â—xilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to posterity that it is damnable detestable and execrable Treason Calvins case pars 7. fol. 11. Tenthly we maintain that who aids the King at home or abroad ought not to be molested or questioned for the same they hold and practise the contrary our warrant is the statute of the eleventh of Henry the seventh Chapter the first Eleventhly We maintain that the King hath power to disassent to any Bill agreed by the two Houses which they deny Our warrant is the Statute of the second of Henry the fift and the practise of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly We maintain that Parliaments ought to be holden in a grave and peaceable manner without â—â—ults They allowed multitudes of the meanest sort of people to come to Westminster to cry for Coll. of Ord. fol. 31. Justice when they could not have their will and keep guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly We maintain that there is no state within this Kingdome but the Kings Majesty and that to adhere to any other State within this Kingdome is high treason our warrant is the Statute of the third of King James Chapter the fourth and the â—â—enty third of Queen Elizabeth Chapter the first Fourteenthly We maintain that to levy a warre to remove Councellours to alter religion or any Law established is high Treason They hold the contrary One warrant is the resolutions of all the judges of England in Queen Elisabeths time and their oracle agrees with the same Fifteenthly We maintain that no man should be imprisoned put out of his Lands but by due course of Law and that no man ought to be adjudged to death but by the Law established the customer of the Realm or by act of Parliament They practise the contrary in London Bristol Kent c. Our warrant is Magna Charta Chapter the twenty ninth the Petition of right the third of King Charles and divers Lawes there mentioned We of the Kings party did and do detest Monopolies and ship money and all the grievances of the people as much as any men living we do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his lawes we love Parliaments if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640 to the tenth of Ianuary 1641 time to punish them being all left to Justice where is the Kings fault The law faith the King can do no wrong 11 pars Cooks Reports Magdalen Colledge Cale that he is medicus Regni pater patriae sponsus regni qui per annlum is espoused to his Realm at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament A succeeding Parliament may repeal them The objection is very weak a Parliament succeeding to that may repeal that repealing Parliament That feare is endlesse and remedilesse for it is the
essence of Parliaments being compleat and as they ought to be of head and all the Members to have power over Parliaments before Parliaments are as the time are if a turbulent faction prevails the Parliaments are wicked as appears by the examples recited before of extreme wicked Parliaments if the times be sober and modest prudent and not biassed the Parliaments are right good and honourable and they are good medicines and salves but in this Parliament excessit mediâ—iâ—a medum In this cause and warre between the Kings Majesty and the two Houses at Westminster what guide had the Subjects of the Land to direct them but the lawes What means could they use to discern what to follow what to avoid but the Lawes The King declaresiâ—â—â— treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this Warre The Subjects for a great and considerable part of them treason being such a crime as forfets life and estate also renders a mans posterity base beggerly and infamous looke upon the Lawes and find the letter of the law requires them to assist the King as before is manifested was ever subject criminally punisht in any age or nation for his pursuit of what the letter of the Law commands The Subjects of the kingdome find the distinction and interpretation now put upon the Lawes of Abstractum Concretam Power and Person body politique and naturall Personall presence and virtuall to have beene condemned by the law And so the Kings party hath both the letter of the law and the interpretation of the letter cleared to their judgements whereby they might evidently perceive what side to adhaere to what satisfaction could modest peaceable and loyall men more desire A verbo legis in criminibus poenis non est recedendum hath been an approved maxime of law in all ages and times If the King be King and remain in his Kingly office as they call it then all the said lawes are against them without colour Coll of Ordinances 777. they say the said lawes relate to him in his Office they cannot say otherwise Commissions and pardon in the Kings name and the person of the King and his body politique cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1.1 Eliz. cap. 1. And the members of both houses have sworn constantly in this Parliament that the King is the only supreme Governour in all causes over all persons at this present time For that of verball or personall commands of the King which is objected We affirme few things to be subject thereto by the law But his Majesties Command under his great Seale which in this warre hath beene used by the Kings command for his Commission to leavy and array men that is no personall command which the law in some cases disallowes but that is such a command so made as all men hold their lands by who hold by Patents All corporations have their Charters which hold by Charters and all Judges and officers their places and callings It is objected the King cannot suppresse his Courts of Justice Ob. Sol. 7 pars The Earle of Westmerlands Case 1 Eliz. Dier 165.7 pars Cooke and that this warre tended to their suppression The answer is the King cannot nor ought to suppresse Justice or his Courts of Justice nor ever did But Courts of Justice by abuser or non user cease to be courts of Justice when Judges are made and proceedings in those courts holden by others then Judges made by the King and against his command under the great Seale and his Majestie is not obeyed but the votes of the houses The case of discontinuance of Processe they cease to be the Kings Courts and are become the Courts of the houses and his Judges breaking that condition in law of trust and loyalty implied in their Patents are no longer his Judges they obey and exercise their places by vertue of writts and processes under a counterfet Seale The King only can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Iustices of the peace c. twenty eighth of Henry the eighth Dier the eleventh the Kings Patent makes Judges The cheese Justice of the Kings Bench is made by the Kings writ only of all the judges The great Seale is the key of the kingdome Articuli super chartas cap. 5. and meet it is that the King should have the key of his kingdome about him 2. pars instit 552. which confutes their saying that the King got the Seale away surreptitiously The King and he only Britton sol 23. may remove his Courts from Westminster into some other place at Yorke the Termes were kept for seaven yeares in Edward the first 's time but for the Court of Common pleas the place must be certaine for the Kings Bench and Chancery the King by the law may command them to attend his person alwayes if it seeme so meete unto him but the removing of the Common pleas must be to a place certaine and so notified to the people All the bookes of law in all times agree 34. Assis pl. 24.22 Ed. 4. Fitz. jurisdiction last placit that the King may grant conusance of all Pleas at his pleasure within any County or precinct to be holden there only and remove the Courts from Westminster to some other place for the Common Pleas 6 H. 7.9.6 Eliz. Dier 226. the place must be certaine and so notified to the people and adjourne the termes as he sees cause All which the two houses have violated Plebs sine lege ruis Some seeming objections of Master Prinâ—'s scattered in divers books answered and the truth thereby more fully cleared The first of Henry the fourth reviveth the statute of the eleventh of Richard second 1 Ob. and repeales to the twelfth of Richard the second whereby certaine persons were declared traytors to the King and Kingdome being of the Kings party True Sol. but note the eleventh of Richard the second A Parliament beset with 40000 men and the King assents to it so an Act and besides the first of Henry the fourth declares that the treasons mentioned in the act of the eleventh of Richard the second being but against a few private men shall not be drawn into example and that no Treason should be but such as the twenty fift of Edward the third declares 9 Ed. 4. sol 80. All these are Acts passed by the King and the three estates not to be drawne into example in a tumultuous time by a besieged Parliament with an army and the confirmer of Henry the fourth being an usurper makes that Act of the first of Henry the fourth to secure himselfe Also what is this in the votes of the two houses only at this time The Court of Parliament is above the King 2 Ob. for it may avoid his Charters Commissions c. granted against the law
And the Law is above the King Sol. By the same reason you may say that the Courts of Chancery or any of the Courts of Law at Westminster are above the King for they make of no effect the Kings Charters which are passed against the Law and the King is Subject to Law and sworne to maintaine it Again it is no Parliament without the King and the King is the head thereof he is principium Caput finis of a Parliament as Medas tenends Parliament hath it and two houses only want principium Caput fixis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say that the King is above himselfe The Parliament can enlarge the Kings prerogative 3 Ob. therefore it is above him If the King assent otherwise not Sol. and then it is an Act of Parliament and otherwise no Act. Bracton saith God the Law and the Kings Court 4 Ob viz. his Earles and Barons are above the King viz. in Parliament as Master Prynne expounds it Where is then the House of Commons Indeed take God Sol. the Law and Earles and Barons together it is true but to affirme that the Earles and Barons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferior member is above the head is hard to conceive besides that position destroyes all M. Pryâ—â—es discourse who attributes so much to the House of Commons The King is but one of the three estates of Parliament 5 Ob. and two are greater then one therefore above The Legs Armes Sol. and Trunke of the Body are greater then the Head and yet not above nor with life without it the argument holds for quantitie but not for qualitie and in truth the King is none of the three estates but above them all the three estates are the Lords Spirituall the Lords Temporall and the Commons Coke their Oracle in his Chapter of Parliaments fol. 1. In Corporations 6 Ob. the greater number of voyces make all the Acts of the Corporation valid therefore so in Parliament By this reason the Kings assent is needlesse and to no end Sol. and all the Acts of Parliament formerly mentioned and Law-Bookes have quite mistaken the matter which with unanimous voyce requires the Kings assent as necessarie besides the Corporations are so constituted by the Kings Charters that the greater number of Votes shall make their Acts valid The King as King 7 Ob. is present in his Parliament as well as in all other his Courts of Justice how be it he is not ther. In his other Courts of Justice he hath no voye Sol. he is none of the Judges in the Parliament he hath if his presence be not necessarie his voyce is not nor his assent â— Ob. Soverain power of Parliaments â—6 47. The originall prime legislative power of making Lawes to bind the subjects and their posteritie rests not in the King but in the Kingdome and Parliament which represents it Master Prynne in the same leafe affirmes and truly that the Kings assent is generally requisite to passe Lawes and ratifie them Sol. the King is the head of the Kingdome and Parliament how then can a Body act without a Head A major part of a Corporation binds 9 Ob. therefore the major part in Parliament and so of by-Lawes The Corporation is so bound either by the Kings Charters Sol. or by prescription which sometimes had the Kings concession but prescription and Law and practise alwayes left the King a negative voyce The King cannot alter the Bills presented to him by both Houses 10 Ob. go. True Sol. but the King may refuse them Acts of Parliament and Lawes ministred in the Reignes of Usurpers 11 Ob. bind rightfull Kings go. What is this to prove the two Houses power only Sol. which is the question A King de facto must be obeyed by them who submitted to him and they are his Subjects by their submission and not Subjects de facto to the true King and such being Traytors and Rebels to the Regent King having renounced the true King when the lawfull King is restored 9. Id. 4.12 may be punished by him for their Treason against the Usurper But here is a King still in both cases and the proceedings at Law holds the Judges having their Patents from the being Kings in the reignes of Kings de facto or de â—urâ— for all Kings are bound and sworne to observe the Lawes A King dies without Heire 12 Ob. is an infant non compes mentis c. the two Houses may establish Lawes go. There is no Inter-regnum in England Sol. as appeares by all ouâ— Bookes of Law and therefore the dying without Heiâ—e is a vaine supposition and by their principle 〈◊〉 is considerable in his politique capacitie which cannot die at also The Protector assisted by the Councell of the King at Law his twelve Judges the Countell of State his Attorney Solicitor and two Sergeants at Law his twelve Masters of the Chancerie hath in the Kings behalfe and ever had a negative Voyce but what is thi no the present question Wee have a King of fall age of great wisdome and judgement the power of the two Houses in such a case to be over the King cannot be showne The King cannot dis-assent to publique and necessarie Bills for the common good go. 13 〈◊〉 Nor ever did good King but who shall be judge Sol. whether they be publique and necessarie The major part in either of the Houses for passing of Bills so pretended may be but one or two voyces or very few and perhaps of no judicious men is it not then fitter or more agreeable to reason that his Majestie and Councell of State his twelve Judges his Sergeants Attorney and Solicitor twelve Masters of the Chancerie should judge of the conveniencie and benefit of such Bills for the publique good rather then a minor of which sort there may be in the Houses or a weake man or a few who oftentimes carry it by making the major part which involves the consent of all let reason determine The Kings of England have beene elective 14 Ob. and the King by his Coronation-Oath is bound to maintaine justas leges consiâ—â—tudines quas vulgas elegerit go. â—â—perie hath beene in the kingdome Soâ— and therefore to continue it still will not be taken for a good argument when things are setled for many ages to look back to times of confusion is to destroy all repose The Act of Parliament of the first of K. James Chapter the first and all our extant Lawâ—s say that the Kings Office is an heritage inherent in the bloud of our Kings and their birth-right And Usurpers that come in by the consent of the people are Kings de
facto but not de jure Ed. 4. c. â— 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 hereditarie and not elective For the words vulgus-elegerit if vulgus be applyed to the House of Commons 1 H. 7. they of themselves can make no Lawes The Peeres were never yet tearmed vulgus but allowing they be so called the Lawes to be made must be just and who is fit to judge thereof is before made evident Customes cannot referre to future time â—5 Ob. and both are conpled Lawes and Customes Princes have beene deposed and may be by the two Houfes go. The deposers were Traytors 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 errors in judgements in all Courts 16 Ob. is frequent go. 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 Error 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 Chancerie assist there by whose advice erroneous 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 Q. Elizab. Chapter the first and the discent of the Crowne is guided rather by a Parliamentarie Title then by Common Law go. 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 back them yea Richard the third that Monster All cur 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 Q Elizabeth against the Qu. of Scaâ—â— then in the kingdome clayming the Grown of England and having many adherent◠〈…〉 〈…〉 〈…〉 And that Statute to that end a firmes no such power in the two Homfor which is the Question but in Q 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 Queen Elizabeth and his own Oath that the king is the onely supreme Governour of this Realme Answers The Parliament is the supreme power and the king supreme Governour And yet there he allowes him a Negative 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 Parliamentary Title makes not the king so powerfull in truth that it escapes from a man unawares To make a distinction betweene Supreme Governour and Supreme power is very strange for who can Governe without power The king assembles the Parliament by His Writ adjourns Vide Speed 645.4 par Instit 27. 1. 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 adjournment of the Parliament by the kings command Where is the supreme Power The king by his Oath 1â—â— Ob. is bound to deny no man right 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 bound as is set downe in the Objection but who shall judge whether the Bill proposed be just and necessary Sol. For all that they doe propose are so pretended and carried in either House sometimes by one or two Voyces or some few as aforesaid and certainly as hath been shewn the king his Councell of State his Judges Sargeants Attorney Sollicitor and twelve Masters of the Chatcery can better judge of them then two or three or few more Mr. Pryn fol. 45. In his book of the Parliaments interest to nominate Privie-Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne a strange opinion Calvins case 7. pars fol. 11. and cites Calvins Case but leaves out the conclusions there in mentioned fol. 15. Master Prynne saith there But let this opinion bee what it will without the Kings Grace and Pardon it will goe very far and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Scale fol. 17. The Parliament hath no jurisdiction to use the Great Seale for Pardons Generall or Particular Where is the Supreme power Mr. â—9 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 yeere of his Reigne the like was done in Parliament A facto Sol. ad jus is no good Argument for that in Edward the firsts time it was no Parliament for King Henry the 3. was dead which dissolved 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 sodainly done after Henry the thirds death King Edward the first being then in the Holy Land it was the first yeere of his Reign and no Parliament was held that yeere nor the second yeere of his Reigne The first Parliament that was in his Reigne was in the third yeere 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 Seal was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protector 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. â—â—t the new count câ—fe it Seale was made when the King was at Gâ—xford in his own kingdome and not in the holy Land Mâ— Prynne in his Book of the two Houses power to impose Taxes restraines Malignants against any Habeas Corpus 20. Ob. 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. Student 2. Dialogue For example it saith cap 18 Justice shall not be sold delayed noâ— 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 Nâ—â—â— castlâ— 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 â—o have power without him today upon the people of this land what taxes they think 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 Majesâ—y finding 〈◊〉 prevailing pâ—rty in both Houses to 〈…〉 and being chased away with Tumults from London leaves the Houses for these Reasons 〈◊〉 First because to 〈◊〉 the Government for Religion in against the king 〈◊〉 〈◊〉 against their Oathes For every of them hath sworne in this Parliament That His Mâ—jâ—sty is the 〈◊〉 supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly This course is against Magna Charta the 1. chap. and the last Salvae suis Episcopis omnes libertates suae Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third in 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 bee the Common Law of the Land Fourthly they endeavour to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Book of Common-Prayer setled by five Acts of Parliament and compiled by the Reformers and Martyrs and practised in the time of foure Princes Fifthly these Propositions taking away from His Majesty all his power by land and Sea rob him of that which all his Ancestours 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 maintaine His Royall person Honour and Estate They are against their Covenant which doth say that they will not diminish His Just Power and Greatnesse For these Reasons His Majesty hath left them and as iâ— beleeved will refuse to agree to the said Propositions as by the Fundamentall Law of the land hee may having a Negative Voyce to any Bills proposed The result of all is upon the whole matter That the king thus leaving of the Houses and his Denyall to passe the said Propositions are so farre from making him a Tyrant or not in a condition to Governe at the present That thereby hee is rendred a Just Magnanimous and pious Prince so that by this it appeares clearly 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 CORDIALL OF JVDGE JENKINS For the good People of LONDON In Reply to a thing called AN Answer to the Poysonous Seditious Paper of Mr David Jenkins By H.P. Barrester of Lincolns-Inne Printed in the Yeare 1647. The Cordial of Judge Jenkings for the good People of London c. After the said Mr H.P. hath made a recitall of the Heads of my Vindication hee deduceth his Answer unto these eight Particulars which follow verbatum 1. It cannot be denyed but the Parliament sits by the Kings Writ â—ay if Statute Law be greater then the Kings Writ it cannot be denyed but the Parliament sits or ought to sit by something greater then the Kings Writ And if it be confessed that the Parliament sits by the Kings Writ but does not Act by the Kings Writ then it must follow that the Parliament is a void vaine Court and sits to no purpose nay it must also follow that the Parliament is of lesse authority and of lesse use then any other inferiour Court forasmuch as it is not in the Kings power to controule other Courts or to prevent them from sitting or Acting 2. This is a grosse non sequitur the Kings power is in himself Ergo it is not derived to nor does reside virtually in the Parliament For the light of the Sun remaines imbodied and unexhausted in the Globe of the Sun at the same time as it is diffused and displayed through all the body of the â—yre and who sees not that the King without emptying himselfe gives commissions daily of Oyer and Terminer to others which yet he himselfe can neither frustrate nor clude but for my part I conceive it is a great errour to inferre that the Parliament has onely the Kings power because it has the Kings power in it for it seemes to me that the Parliament does both sit and act by concurrent power devolved both from the King and Kingdom And this in some things is more obvious and apparent then in others For by what power does the Parliament grant Subsidies to the King if only by the power which the King gives then the King may take Subsidies without any grant from the Parliament and if it be so by a power which the people give to the Parliament Then it will follow the Parliament has a power given both by King and Kingdome 3. The sending Propositions to the King and desiring his concurrence is scarce worth an Answer for Subjects may humbly petition for that which is their strict right and property Nay it may sometimes beseeme a superiour to preferre suite to an inferiour for matters in themselves duâ— God himselfe has not utterly disdained to beseech his own miserable impious unworthy creatures besides t is not our Tenet that the King has no power because he has not all power nor that the King cannot at all promote our happinesse because hee has no just claime to procure our ruine 4. We affirm not that the Kings power is separated from his Person so as the two Spencers affirmed neither doe we frame conclusions out of that separation as the two
Spencers did either that the King may be removed for misdemeanours or reformed per aspertè or that the Subject is bound to govern in ayde of him we only say that his power is distinguishable from his person and when he himself makes a distinction betwixt them commanding one thing by his Legall Writs Courts and Officers and commanding another thing extrajudically by word of mouth Letters or Ministers we are to obey his power rather then his person 5. We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo For if the King pardon him which hath murthered my sonne his pardon shall not cut me off from my appeale and 't is more unreasonable that the Kings pardon should make a whole State which hath suffered remedilesse then any private man So if the King should deny indemnity to these which in the furie of Warre have done thingâ— unjustifiable by the Lawes of Peace and thereby keep the wounds of the State from being bound up 't is equitable that an Act of Indemnity should be made forcible another may And if this will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolâ—â—e in all things else and the Parliament hath no power to discharge Delinquencies therefore it hath no power in other matters 6. The Parliament hath declared the King to be in no condition to govern but this must not be interpreted rigidly and without distinction for if the King with his sword drawn in his hand and pursuing the Parliament and their adherents as Rebels be not fit for all Acts of Government yet 't is not hereby insinuated that he is divested of the habit or right of governing If he be unqualified now he is not unqualified for the future if he may not doe things destructive to the Parliament he is not barred from returning to the Parliament or doing justice to the Parliament This is a frivolous cavil and subturfuge 7. We sweare that the King is our supreme Governour over all persons and in all Causes but we doe not sweare that he is above all Law nor above the safety of his people which is the end of the Law and indeed Paramount to the Law it selfe If he be above all Law or liable to no restraint of our Law then we are no freer then the French or the Turks and if he be above the prime and of Law common fafety then we are not so free as the French or Turks For if the totall subversion of the French or the Turk were attempted they might by Gods Law imprinted in the Book of Nature justifie a self-defence but we must remedilesty perish when the King pleases to command our threats Besides how atchieved the King of England such a Supremacie above all Law and the community it selfe for whose behoofe Law was made If Gods donation be pleaded which is not speciall to him or different from what other Kings may pretend toâ— then to what purpose serve our Laws nay to what purpose serve the Laws of other Countries for by this generall donation all Nations are condemned to all servitude as well as we If the Law of this Land be appealed to what Books hath Mr Ienkins read where hath he found on t that Lex Regia whereby the people of England have given away from themselves all right in themselves Some of our Books tell us that we are more free then the French that the King cannot oppresse us in our our persons or estates by imprisonment denying justice or laying Taxes without our consents other Books tell us that the safety of the people is the supreme Law and that the King hath both God and the Law for his Superiour But all this is nothing to learned Mr Ienkins 8. We admit that no Acts of Parliament are compleat or formally binding without the Kings assent yet this is still to be denyed that therefore without this assent particularly exprest the two Houses can doe nothing nor have any virtuall power at all no not to examine Mr Ienkins nor to doe any other thing of like nature though in order to publick justice and safety I have done and wish Mr Ienkins would call in and lick up againe his black infamous execrable reproaches so filthily vomited out against the Parliament To the first I Was examined by a Committee appointed by the House of Commons I say and said that the House of Commons have no power to examine me for that it is no Court every Court hath power to examine upon Oath this power the House of Commons never claimed The Court of Pie-powders Court-Baron Hundred Court 5 H. 4. c. 3. 3 H. 6.46 1 H 6.43 35 H. 6.5 County Court and every other Court of Record or not of Record hath power to examine upon oath and an examination without Oath is a communication only examination in Law is upon Oath There is no Court without a power of tryall the House of Commons have no power to try any offence Sir Anthony Maynes case Cook 5. pars Reports Lit. 2. lib. Sect. 194.6 H. 4.1 nor ever practised it by Bill Inditement Information Plaint or Originall to deduce it to tryal nor to try it by Verdict Demurrer or Examination of Witnesses upon Oath without which there can be no condemnation or judgement and that which can attaine to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit a fine The Writ Whereby they are called gives them power Aâ— faciendum consentiendum to what to such things Que ibidem de communi Consilie ordinari contigerint 4 pars instit fol. 4. 9. viz. in the Parliament This makes nothing at all for a Court for the House of Commons that consilium which that Writ intends is cleared partly by the Writ for chusing Knights c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peeres of the Kingdome for and touching the great concernments of the Common-wealth for the King never sits in the House of Commons and this also is made evident by the Writs to the Prelates Peeres Iudges and to his Councell at Law the words in their Writ are To appear and attend the Parliament consilium impensuri the one doth consulere the other facere consentire The House of Lords where the King sits in person 7. H. 6.28 1 H. 7.20 13. E. 3. ca. 5. 4 pars instit pag. 21. assisted by his Lords Judges Serjeants Atturney Sollicitor Masters of the Cnancery is a Court of Record to many purposes set down in the Books of Law and the Statutes of the Land and that Court is only in the House of Lords where the Kings sits A Court must either be by the Kings Patent Statute Law or by the Common Law which is common and constant usage the House of Commons hath no Patent to be a
Court Plowd Com. 319. nor Statute Law to be a Court nor common usage they have no Iournall Book but since E. 6. time was there ever Fine by the House of Commons estreated into the Exchequer For murder or Felony they can imprison no man much lesse for Treason that House which cannot doe the lesse cannot doe the greater It is ordained 25. E. 3. c. 4.3 Car. Petition of Right that no man shall be imprisoned or put out of his Franchise by the King or his Councell but upon Indictment or presentment of his good and lawfull Neighbours where the deed is done or by originall Writ at the Common Law and so is Lex terrae the Law of the land mentioned in Magna Charta cap. 29. expounded and the said Magna Charta and Charta de Foresta are declared by the Stat. of 25. E. 1. c. 1. to be the Common Law of the Land All Iudges and Commissioners are to proceed Secundum legem consuetudinem Regni Anglia as appeares by all proceedings in all Courts and by all Commissions and therefore the House of Commons by themselves proceeding not by Indictment Presentment or Originall Writ have no power to imprison men or put them out of their Franchise This no way trenches upon the Parliament for it is in Law no Parliament without King and both Houses 4 pars Instit pag. 1. 3 Pars Instit p. 23. I have only in my Paper delivered to Mr Corbet applyed my selfe to that Committee that they had no power to examine me 12. â— 7.20 Princes case 8 Pars Cook 1 Pars Instit p. 159. 14. H. 8.3 Dier 38. H. 8.60 1 Pars Instit p. 19. b. but I never thought said or wrote that the Parliament had no power to examine me the Law and custome of this Land is that a Parliament hath power over my life liberty lands and goods and over every other subject but the House of Commons of it selfe hath no such power For the Lord Cooks relation that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeth time and since Few facts of late time never questioned make no legall power nor Court 4 Pa. Instit ca. Parl. Ã facto ad jus is no good argument for the words of the Statute of 6. H. 8. c. 16. that a licence to depart from the House of Commons for any Member thereof is to be entred of Record in the Book of the Clark of the Parliament appointed or to be appointed for that House doth not conclude that the House of Commons is a Court of Record For first that Law of 6. H. 8. c. 26. handles no such question as that whether the House of Commons be a Court it is a maxime in all Lawes Lex aliud tranctans nil probat the word Record there mentioned is only a memoriall of what was done and entred in a Book A Plaint removed out of the County-Court to the Court of the Common-Pleas hath these words in the Writ of remove Fitzh Nat. Br. 70. Fitzh Nat. Br. 13. 12. H 4.23 34. H. 6.49 Recordari facias loquelam c. and yet the County-Court is no Court of Record and so for ancient Demesne in a Writ of false judgement the words are Recordari facias loquelam c. and yet the Court of ancient Demesne is no Court of Recoâ—d and so of a Court Baron the Law and custome of England must be preserved or England will be destroyed and have neither Law nor custome Let any man shew me that the Court of Lords or the House of Commons in any age hath made any man a Delinquent Rege dissentiente the King contradicting it under his Great Seale Sir Giles Mâ—mpessau Michell and others of late were condemned by the prosecution of the House of Commons in King James his time did King James ever contradict it And so of ancient times 4 Pars Inslit Tit. Parliam pag. 23. where the House of Peeres condemned the Lord Latimer in 50. E. 3. the Kings pardon freed him which shewes cleerly that the Kings expresse or implyed assent must of necessity be had to make a Delinquent The Geatleman saith That the Parliament sitâ— or ought to sit by something greater thâ—n the Kings Writ c. No Parliament did ever sit without the Kings Writ nor could ever Parliament begin without the Kings presence in person 4 Pars Instit pag. 4. 6. or by a Guardian of England by pacent under the Kings Great Seale the King being in reâ—â—tiâ— or by Commission under the Great Seale to certaine Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majesty hath been pressed and hath passed two Acts of Parliament one for a Triennall Parliament and another for a perpeâ—uall if the Houses please to satisfie their desires â—ow these two Acts agree one with another and with the Statute in E. the thirds time where Parliaments are ordained to be holden every yeare 4 E. 3. c. 14. 36. E. 3. c. 10.21 Iac. the Act of Limitation of Actions cap. 26. and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their meniall servants from all debts during their lives if they please to continue it so long and how destructive to mens actions against them by reason of the Statute of Limitations which confines their actions to certain years and many other inconveniences of greater importance is easie to understand How can any man affirm that the two Houses doe act now by the Kings Wrie which relates to Counsell and Treaty with the King concerning the King the defence of his Kingdome and of the Church of England 4 Pars Instit p. 14. these are the three points which it tends to as appeares by the Writ They keep their King prisosoner at Holnby and will not suffer him to consult and treat with them Vow and Covenant p. 11. They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent and to the same effect have devised the Oath which they call the Negative Oath Is this to to defend the Kings Kingdome or their Kingdome When by their Solemn League and Covonant they extirpate Bishops Deanes and Chapters root and branch is this to defend the Church of England that Church must necessarily be meant that was the Church of England when the said Writ bore test they were not summoned to defend a Church that was not in being 3 Pars Cookâ— Deane and Chapter of Norwich to destroy and defend the Church are very contrary things the Church is not desended when they take away and sell the Lands of the Church The Gentleman saith The King cannot contrâ—le other Courts of Justice or prevent them from sitting or acting and therefore not the
two Houses c. It is true the King cannot controle or prevent his other Courts for that they are his ordinary Courts of common Iustice to administer common right unto all men according to the fixed Lawes 14 H. 8.3 36 H. 8. Dier 60. The Houses make no Court without the King they are no body corporate without the King nor Parliament without the King they all make one corporate body one Court called the Parliament 4 Pars Instit pa. 1. 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 waâ— against the King and imprisoning of him have made the Statute for not dissolving adjourning or proroging 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 discern what Bills are fit to passe and what not which in all Ages the Kings of this Land have enjoyed as their undoubted Rights and therefore they sit to no purpose by their own disobedience and fault For the ordinary Courts at Westminster 27 H. 8. c. 24. 28 H. 8.11 Dier the Iudges in all those Courts are Iudges by the Kings Patent or Writ otherwise they are no Iudge the Houses can make no Iudges they are no Iudges at all who are made by them the whole sole power of making Iudges belongs to the King the King cannot controule or prevent his own Iudges from sitting or acting but the Houses hee may for they are not the Kings Iudges but the Iudges of the two Houses 2 R. 3.11 In his other Courts the King commits his power to his Iudges by his Patent and they are sworn to doe 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 controule but the King is both Iudge and Controller in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bills Many Lawyers have much to answer to God this Kingdome and to pâ—sterity for puzling the poore of this Land with such Fancies as the Gentleman who wrote the Answer to my Paper and others have published in these Troubles which hath been none of the least causes of the raysing and continuing of them And so I have with the first part of his Answer AD. 2. For the Non sequitur in the second Section of the Gent. Answer the Antecedent and the Censequent are his own Quem recitas meus est ô 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 vertue of his power For his power and the vertue of his power is in all Patents to his Iudges in Charters to Corporations in Commissions of all sorts and in the Parliament assembled by force of his Writ of Summons so long as they obey him but when they renounce that power and claime it not from the King and declare to the Kingdome that he is not in condition to govern and imprison him and usurp to themselves all Royall Authority as the two Houses now doe no reasonable man can affirm that they act by the power of their prisoner who hath no power to give them that by force of Armes take all the power to themselves The Gent. saith the King grants Commissions daily of Oyer and Terminer which he cannot frustrate nor â—lude 4 E. 4.39 5 F. 4.4 1 Eliz Dyer 165. 1 Mar. Brooks case 447. The King may revoke and discharge the Commission by his Writ as he may remove all Iudges and place other men in their roome and any Kings death determines all the Iudges Patents of Westminster Hall Commissions of Oyer and Terminer c. and so he might dissolve both Houses in all times by his Writ under the Great Seale untill that by this Parliament by his own concession the King of his goodnesse hath secluded himself which goodnesse hath been full ill requited The Gent affirms That the power the Parliament hath is concurrent from the King and Kingdome which he conceives is proved by the Grant of Subsidies to the King by the Parliament The mistaking of this word Parliament hath been mischievous in these times to this Land 4 Pars Instit pag 1. and it is affectedly mistaken which makes the sinne the greater for the two Houses are not the Parliament as before is declared and at this time so to inculcate it when all men know that of the 120 Peeres of the Kingdome who were Temporal Peeres before the Troubles there are not now above 30 in the Lords House and in the House of Commons about 200 of the principall Gent. of the Kingdome 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 layd upon the people of this Land 25. E. 1. confirmatio chartarum cap. 6. 34. E. 1. cap. 1. de Tallagio non concedendo but by their consent in Parliament as appeareth by the Lawes mentioned in the Margent but you shall finde in Mr Sâ—ldâ—ns learned Book called Mare Clausum a number of Presidents in Henry the Thirds time for Ship-money 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 Danegelt Englitery 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 restraine Kings form 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 subâ—ects 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 ancient time Parliaments rarely granted any unlesse it were in the time of forraine Warres and in my time Qâ— Elizabeth refused a Subsidy granted in Parliament and in the Parliament of â— Jac. none were granted The Gent. should make a conscience of blinding the people with such untrue colours to
the ruine of King and people AD. 3. The Gent. affirms That the sonding Propositions to the King and desiring his concurrence is carce worth an answer for Sub ects may humbly petition for that which is their strict right and property c. The Propositions sent to Newcastle are in print wherein the two Houses are so farre from humbly petitioning that they stile not themselves his Majesties Subjects as appeares by the Propositions That they have a strict right or property to any one of these Propositions is a strange assertion every one of them being against the Lawes now in force Have the two Houses a strict right and property to lay upon the people what Taxes they shall judge meet To pardon all Treasons c. that is one of their Propositions Have they a strict right and proporty to pardon themselves and so for all the rest of their Propositions These Propositions have been Voted by both Houses 12 H. 7.20 1 Iac. cap. 1. 1 Car. cap. 7. the Kings assent theâ— being drawn into Bills makes them Acts of Parliment Hath the King no right to assent or dis-assent Was the sending but a Complement All our Law-Books and Statutes speak otherwise This Gent. and others must give an account one time or other for such delusions put upon the people AD. 4. The Gent. saith They affirm not that the Kings power is separated from his person so as the two Spencers affirmed c. His Majesties person is now at Holnby under their Guards have they not severed his power from him when by no power they have left him he can have two of his Chaplaines who have not taken their Covenant to attend him for the exercise of his Conscience For the three Conclusions of the Spencers 15. Ed. 2. Exilium Hugonis 1 E. 3. c. 2. Calvins case 7 Pars Reports 11. doe not the two Houses act every of them They saâ— his Majesty hath broken his Trust touching the Government of his people They have raised Armies to take him they have taken him and imprisoned him they govern themselves they make Lawes impose Taxes make Iudges Sheriffes and take upon them omnia insigna summae pâ—tâ—statis Is not this to remove the King for misdemeanours to reform per aspertè to govern in aide of him the three Conclusions of the â—Pencers Doe they think the good people of England are become stupid and will not â—t length see these things The Gentleman saith They doe not separate his power from his Person but distinguish it c. His power is in his legall Writs Plowd 4. Eliz. 213. the Kings power and his Person are indivisible Courts and Officers when they counterfeit the Great Seale and seale Writs with the same make Iudges themselves Courts and Officers by their own Ordinances against his consent declared under his true Great Seale of England not by word of mouth letters or ministers only their Seale is obeyed their own Writs their own Iudges their own Courts their own Officers and not the Kings The time will come when such strange actions and discourses will be lamented AD. 5. The Gentleman goes on We take not from the King all power of pardoning Delinquents we only say it is not proper to him quarto modo c. What doe you meane by quarto modo I am sure Omnis Rex Angliae solus Rex semper Rex can doe it and none else read the Books of the Law to this purpose collected by that reverend and learned Iudge Stanford Stanfor Plcas 99. 27 H 8. c. 24. Dier 163. from all Antiquity to his time who dyed in the last year of King Philip and Queen Maries Reign you shall finde this a truth undeniable and this power was never questioned in any Age in any Book by any untill this time that every thing is put to the question You Gentlemen who professe the Law and maintaine the party against the King return at length and bring not so much scandall upon the Law which preserves all by publishing such incredible things We hold only what the Law holds the Kings Prerogative and the Subjects Liberty are determined and bounded and admeasured by the written Law what they are 1 Pars Instâ—t pag. 344. Plowd 3. Eliz. 236 237. we doe not hold the King to have any more power neither doth His Majesty claime any other but what the Law gives him the two Houses by the Law of this Land have no colour of power either to make Delinquents or pardon Delinquents the King contradicting and the Army under Sir Thomas Fairfax howbeit but Souldiers doe now understand that to be Law and doe now evidently see and assuredly know that it is not an Ordinance of the two Houses but an act of Parliament made by the King Lords and Commons that will secure them and let this Army remember their executed fellow Souldiers And the Law was alwayes so taken by all men untill these troubles that have begot Monsters of opinions AD. 6. This Gentleman sayes The Parliament hath declared the King to be in no condition to govern c. There is no end of your distinctions I and you professe the Law shew me Law for your distinctions or letter syllable or line in any Age in the Books of the Law that the King may in one time be in no condition to govern and yet have the habit of governing and another time he may viz. when the two Houses will suffer him The Law saith thus Vbi lex non distinguit non est distinguendum He sayes The King is not barred from returning to His Parliament as he calls the two Houses he knowes the contrary the whole City knowes the contrary Nos juris consulti sumus sacerdotes as Institian the Emperour hath it in the first Book of his Institutions and therefore knowledge and truth should come from our lips Worth and ingenious men will remember and reflect upon that passage of that good and wise man Seneca Non qua itur sed qua eundum follow not the rayes of the Lawyers of the House of Commons God forgive them I am sure the King will if they be wise and seek it in time AD. 7. The Gent. sayes We sweare that the King is our supreme Governour over all persons and in all causes c. Why hath he lest out the word only for the oath the Members now take is that King Charles is now the only and supreme Governour in all causes over all persons 5 Elâ—z cap. 1. Cawdreys case 5 pars fol. 1. and yet they keep their only Supreme Governour now in prison and act now in Parliament by vertue of their Prisoners Writ and by a concurrent power in this Parliament and by their own strict right and property as the Gent. This Oath is allowed by the Common Lâ—w of the Land affirms in his Answer These things agree well with their Oath that the King is the only Supreme Governour in all causes over
all persons this Oath is taken now in the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publike Affaires This Oath being taken in Parliament that the King is the only and Supreme Governour in all Causes then it followes in Parliament causes over all persons then over the two Houses let them keep this Oath and we shall be sure of peace in the Land and good Lawyers ought to desire peace both for the publike good and â—heir private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes We doe not sweare that the King iâ— above all Law nor above the safety of his people neither doe we so sweare but His Majesty and we will sweare to the contrary and have swom and have made good and will by Gods grace make good our Oath to the world that the King is not above the Law nor above the safety of his people the Law and the safery of his people are his safety his Honour and his Strength AD. 8. The Gent. concludes That Acts of Parliament are not formally binding nor compleat without the Kings assent yet the Houses have a virtuall power without the Kings particular assent to doe things in order to publike Iustice and Safety viz In setting up the Excise in raising and maintaining of Armies in taxing the peo-people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loanes Compositions imprisoning the King abolishing the Common-prayer-Book selling the Churches Lands c. all these are in order to the publike Justice and Safety Mr H.P. you are of my profession I beseech you for the good of your Countrey for the Honour of our Science perswade your selfe and others as much as in you lies to believe and follow the monition and Councell of that memorable reverend and profoundly learned in the Lawes and Customes of the Land the Lord Coke who writes as becomes a great and a learned Judge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finds a Principle in Law 3 Pars Instit p. 36. a Rule in Reason and a Tryall in Experience that Treason doth over producâ— futall and finall destruction to the offender and never attaines to the desired and two incidents inseparable thereunto and therefore lâ—t all men abandon it as the poysonous hait of the Devill and follow the Precept in holy Scripture SERVE GOD HONOVR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS CONCLUSION I Say againe that without an Act of Obliviow a gracious generall Pardon from His Majesty the Arreares of the Soulaiers paid a favorable regard had to tender Consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing be hath By me David Jenkins Prisoner in the Tower The End A DISCOURSE Touching the Inconveniencies of a Long continued Parliament AND THE IVDGEMENT OF THE LAW OF THE LAND In that Behalfe By DAVID JENKINS now Prisoner in the Tower of LONDON Printed in the Yeare 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament 1. Aerpetuall Parliament is repugnant to the Act made this Parliament for a Trienniall Parliament for how can every three years a Parliament begin if this be perpetuall which may be so if the two Houses please 2. An adjournment of the Parliament makes no Session 4 Pars Institut fol. 27. Howbeit before the Adjournment the King gives His Royall assent to some Bills Cooke ibid. 3. There is no Session till a prorogation or dissolution of the Parliament 4. This Parliament as appeares by the Act for not dissolving thereof set downe in the Printed Statutes of this Parliament fol. 138. cannot be prorogued but by Act of Parliament There hath beene as yet no Act of Parliament present and therefore all the Acts of this Parliament are Acts of one Session 5. All the Aâ—â—â— of one Session relate to the first day of the Parliament Plow â— com 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier 1 Mariae 45. and all the Acts of such a Paâ—liament 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. and 36 Ed. 3. cap. 10. A Parliament is to bee holden once every yeere 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 yeere or with the intention of those Lawes How doth a Parliament every three yeers agree with a Parliament for ever which may be if the two Houses please 7. The result is this at one day in Law this Parliament two Acts have passed for howbeit the one was in 16â— 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 8 Pars Doct. Bonhams case fol. 118. 8 Ed. 3.30 33 E. 3. cessavit 32. 27. H. G. Annuity 11. 14 Eliz. Dier 313. or repugnant or impossible to bee performed the Common Law shall controle it and adjudge this Act to bee void they are the words of the Law An Act of Parliament that a man shall bee Judge in his owne cause is a void Act. 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 Comons doe any Subject wrong by diffeising 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 bee questioned by a priviledge of Parliament and that extended also to many others besides themselves Common Right doth abhorre these enormities which a perpetuall Paliament doth beget besides the utter destruction of all mens actions reall personall or mixt who have to doe with Parliament men 21 Jac. by the Statute of Limitation which confines suits to certain yeares For Common Reason Parliaments were ordained for remedies to redresse publike grievances It is against Reason they should make publike and insufferable grievances The Law of the Land allowes no protection for any man imployed in the service of the Kingdome but for a yeare to be free from suits and in many suits none at all howbeit hee 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
What credit is to be given to persons who make nothing of Oathes and contradict themselves How dâ—e the Covenant and the Oath of Supremacy agree How doth their Protestation and the Covenant agree How doe their Declarations and Oathes 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 yet they should amuse themselves and the people with the word of Parliament without the King and with the Covenant whereas they know they are no Parliament without His Majestie and that English men throughout the Kingdome should sweare a Covenant to preserve the reformed Religion of Scotland in Doctrine Worship Discipline and Government which they no more know than the Doctrine Worship Discipline and Government of Prester Iohn in Ethiopia if they consider it they cannot but discerne that this is a high desperate and impious madnesse Be wise in time without the King and the Lawes you will never have one houre of safety for your Persons Wives Children or Estates Be good to your selves and to your Posterities apply your selves to be capable of an Act of Oblivion and of a generall Pardon and to be able and willing to pay the Souldiery and to allow a reasonable liberty for mâ—â—â— consciences and God will blesse your endeavours and the people to whom you are now very hatefull will have you in better estimation The third Quarie is thus answered You resemble the Army to Iacke Cade and his Complians and you cite the Act of Parliament of 31. Hen. 6. cap. 1. and that it may appeare who acts the Part of Iacke Cade you and that Party in the two Houses or the Army I thinke it necessary to set downe the said Act in words at large as followeth First Whereas the most abominable Tyrant horrible odious and arrant false Traytor Iohn Cade calling and naming himself sometime Mortimer sometime Cap. of Kent which name fame acts and feats are to be removed out of the speech and mind of every faithfull Christian man perpetually falsely and traiterously purposing and imagining the perpetuall destruction of the Kings said Person and finall subversion of this Realme taking upon him Royall power and gathering to him the Kings people in great numbers by false subtle imagined Language and seditiously making a stirring Rebellion and Insurrection under colour of justice for reformation of the Lawes of the said King robbing stealing and spoiling great part of his faithfull people Our said Soveraigne Lord the King considering the premises with many other which were more odious to remember by advise and consent of the Lords aforesaid and at the request of the said Commons and by authority aforesaid hath ordained and established that the said Iohn Cade shall be reputed had named and declared a false Traytour to our Soveraigne Lord the King and that all his tyranny acts feats and false opinions shall be voyded abated annulled destroyed put out of remembrance for ever and that all enditements and all things depending thereof had and made under the power of tyranny shall be like wise void annulled anated repealed and holden for none and that the bloud of 〈…〉 them be thereof defiled nor corrupted but by the authority of the said Parliament cleerely declared for even and that all enditements in times comming in like case under power of tyranny rebellion and stirring had shall be of no Record nor effect but void in Law and all the Petitions delivered to the said King in his last Parliament holden at VVestminster Noveb 6. in the 29. of his Raigne against his mind by him not agreed shall be taken and put in oblivion out of remembrance undone voyded annulled and destroyed for ever as a thing purposed against God and conscience and against His Royall Estate and preeminence and also dishonourable and unreasonable Now wee are to examine who hath trod in the stepâ— of Jack Cade you and the present prevailing party of the two Houses tooke upon them and doe take all the Royall Power in all things so did Jack Cade as appeares by the said Act the Army doe not so They who imprison the King purpose to destroy His Person our imprisoned Kings alwayes * Edward â— Henry 6. Richard 2. fared so Jack Cade did likewise so purpose but the Army doe not so The said party in the two Houses made a stirring under colour of Justice for Reformation of the Lawes so did Jack Cade The Army doe not so but desire that the Lawes should be observed Jack Cade levied Warre against the King the Army preserves Him Jack Cade dyed a Declared Traytor to his Soveraigne Lord the King this Army lives to have the glorious true Honour of being restorers of their King Simon Sudbury Archbishop of Canterbury was murtheted by Jack Cade iâ— William Laud Archbishop of Canterbury was likewise murthered by that party of the two Houses 25 Ed. 3.4 28 Ed. 3.3 Petition of Right 3 Car. for that an Ordinance by Law cannot take away any mans life his life was taken away by an Ordinance of the two Houses the Army had no hand in it Many misled by Jack Cade perceiving his Trayterous purposes fell from him and as that was lawfull just and Honourable so it is for this Army to adhere to their naturall King and to indeavour to settle the Kingdome againe in the just Lawes and Liberties thereof London did then right worthily adhere to the King and the Lawes and not to Iack Cade and his specious pretences and it is hoped they will now so doe By this it appeares that the Gentlemans Discourse touching Iack Cade fastens altogether on his party and cleareth the Army To the IV. which is solved thus The Arreares of the Army howbeit it is the least thing they looke after yet being not paid them it is by the Law of the Land a sufficient cause to leave and desert that party in the Houses A person who serves in any kinde and is not paid his wages the desertion of that service is warrantable by the Lawes of the Land Pitz. N. B. 25. 9 Ed. â— 20 38 H. 6.27 23 Eliz. Dier 369. You say the Houses will reforme all things when the Army doth disband who will beleeve it Will any beleeve that the setling of the Presbytery will doe it Will any beleeve that his Majesty will passe the Propositions sent to Him to Newcastle Will any man beleeve that this Kingdome will ever bee quiet without His Majesty and the ancient and just Lawes Can the Members of the Army conceive any of them to be safe in any thing without a Pardon from His Majesty Have they not seene some of their Fellows hanged before their eyes for actions done as Souldiers Shall the Kingdome
parle with him The Army hath no manner of security by this Ordinance For their indemnification referres to that which is not in being untill the King be at liberty VII It is more then probable that their Judges before the last circuite had instructions to the effect or this Ordinance The Common Souldiers sccond Apology 6. Grievances of the Army published 15. May last Three grievances of Col. Riche's Regiment but they the Judges making conscience of their Oath laid aside the said Instructions and ought and may and it is beleeved will no more regard this Ordinance then the said instructions What was done in the last circuite the Army well knowes touching many of their fellow-souldiers VIII The Houses in their first Proposition to his Majesty for a safe and well-grounded peace sent to Neweastle to desire a pardon from his Majesty for themselves they who desire a pardon cannot grant a pardon common reason dictates this to every man and therefore that the Army should accept an Indemnity from them who seeke 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 vaine and a meere delusion IX His Majesty by his gracious Message of the 12. of May fast the 22 of the same 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 beene done for it is an Act of Parliament when the King and two Houses concurre and bindes all men There 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 X. His Majesty by his said Letter agrees to pay the Arreares of the Army I am sure that it is a publique Debt and the chiefest and the first that by the two Houses should be paid and before any Divident or Gratuities bestowed among themselves for their Bloud Limbes 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 Publique Faith but the Law of the Land to make sure unto them their Indemnity for all Acts and for their Arreares and therewith also bring peace to the Land XI The Kingdome 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 Kingdome miserable Mr Pyms Speech against the Earle of Strafford p. 16 Sixt consideration Printed by the command of the House of Commons wherein you will have your shares of miseries The head and the body are such an incorporation as cannot be dissolved without the destruction of both The Additional Ordinance of both houses passed the fifth of June 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 capitall crime which is the maine businesse insisted upon and most concerneth the Souldiers security II. The both Houses in the said Additionall Ordinance say that it is expedient that all offences be pardoned and put in oblivion Pardon and Oblivion cannot bee understood to bee for a time but for ever and they themselves confesse that an Ordinance is not binding but pro tempore which with the most advantagious Interpretation can be but a reprieve or delay of the execution of the Law and therefore that cannot pardon or put in oblivion by their owne shewing But the Law of the Land is 27. H. 8. c. 24. and so it hath constantly been practised in all times that no persons of what estate soever have any power to pardon Treason Felony or any other offences but the King onely 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 will give is that it records to posterity nothing but a lawlesse and distempered time For remedy therefore I say againe it is a certaine truth This Kingdome without an act of Oblivion and a generall Pardon and the payment of Souldiers arreares and a meet regard had to tender Consciences will unavoidably be ruined June 10. 1647. David Jenkins 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 to be rightly informed 25. Edw. 3. Chap. 2. A Declaration what offences shall be adjudged Treason VVHereas divers opinions have been before this time in what case Treason shall be said in what not The K. 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 Queen or of their eldest Son and Heire or if a man do violate the Kings companion or the Kings eldest daughter unmarried or the wife of the Kings eldest sonne and heire or if a man do levie war against the Lord our King in his Realme or bee adherent to the Kings enemies in his Realm giving to them aid and comfort in the Realme 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 privie Scale or his Money and if a man bring false money into this Realm counterfeit to the money of England and the money called Lusburgh or other like to the said money of England c. 11. Hen. 7. Cap. 1. None that shall attend upon the King and doe him true service shall bee attainted or forfeit any thing THe King our Soveraign Lord calling to his remembrance the duty of allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serve their Prince and Soveraign Lord for the time being in his wars for the defence of Him and the Land against every rebellion power and might raised reared against him and with him to enter and abide in service in battell if case so require and that for the same service what fortune ever fall by chance in the same battell against the minde and will of the Prince as in this Land sometime passed hath been seen that it is not reasonable but against all lawes reason and good conscience that the said Subjects going with their Soveraigne Lord in wars attending upon him in his person or being in other places by his commandement within this
Land or without any thing should lose or forfeit for doing their duty or service of Allegiance It be therefore ordained enacted and established by the King our Soveraigne Lord by the advice and assent of the Lords spiritual and temporall and the Commons in this present Parliament assembled and by authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upoâ— the King and Soveraigne Lord of this Land for the time being in his person and doe him true and faithfull service of allegiance in the same or be in other places by his commandement in his wars within this Land or without that for the said deed and true duty of allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by act of Parliament or otherwise by any processe of Law whereby hee or any of them shall lose or forfeit life lands tenements rents possessions hereditaments goods chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse And if any act or acts or other processe of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that act or acts or other processe of the Law whatsoever they shall be stand and be utterly void Provided alwaies that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degree soever they be of shall have any power or authority to pardon or remit any treason murders man-slaughters or any kinde of Fellonies c. but that the King shall have the sole and whole power and authority thereof united and knit to the Imperiall Crowne as of right it appertaineth c. And in the same it is enacted further that none shall have power of what estate degree or condition soever they be to make Justices of Eyre Justices of Assize Justices of the Peace c. but all such officers and Ministers shall be made by Letters Patents under the Kings great Seale in the name and by the authority of the King and his Heires and Successors Kings of this Realme In the first yeare of Queen Mary and the first Chapter It is enacted by the Queen with the consent of the Lords and Commons That no deed or offence by Act of Parliament made treason shall be taken deemed or adjudged to be high treason but only such as be declared and expressed to be treason by the Act of Parliament made 25. Ed. 3. cap. 2. before mentioned A Declaration of M. David Ienkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryalls of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Iuries and not otherwise unlesse it be by Act of Parliament THe common Law of this Land is That every freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concurre for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Chart. cap. 29. 2 part instit fol. 28 29.46.48 49 50. composed by Sir Ed. Cooke and published by the Order of the House of Commons in May 1641. No man shall otherwise be destroyed c but by the lawfull judgement of his Peers or by the common Law of the Land Peers to Noblemen are Noblemen Peers to the Commons are Knights Gentlemen c. Judgement of Peers refers to Peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by Indictment Presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29. and by 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Lawes Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suters to the King that what they had so done in future time might not be drawn into president because that which they had so done was against the Law b Rot. Par. 1. roule 4. E. 3. Num. 2. part inst page 50. with this 〈◊〉 grees Sir Joâ—n Lees case Rot. Par. 42. E. 3. Num. 22.23 2. inst fol. 50. with this agrees the practice and usage of all times in this Land all the free Commoners of this Kingdome have alwayes been tryed and acquitted or condemned in capitall causes by Jurers of their equalls An Ordinance bindeth not in Law at all c See 4. part inst fol. 23.48.292 2. part inst f. 47 48. and but pro tempore as the two Houses now affirme a mans life cannot be tryed by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. and 2. of Philip and Mary chap. 10. It is enacted that aâ—â— tryalls for Treason hereafter to be had shall be according to the course of the common-law If the crime charged upon any be treason against the two Houses against the Parliament it cannot be for there is no Parliament without the King that is no Treason in Law as appeares by 25. Ed. 3. chap. 2. 11. R. 2. chap. 3. 1 Hen. 4. cha 10. 1. and 2. Philip and Mary chap. 10. 3 part of the institutes Page 23. An Act of Parliament to make any a Judge where he is party is a void act d Dr â—oâ—ams case 8. part of Cooks reports for none can be a Judge and party in the same cause and therefore the House of Peers being a party touching the crime charged upon any man whom they would try by an Ordinance for Treason against both Houses cannot be a Judge By the Petition of Right e Petition of Right 3. Car. Regis if any man deserve death he ought to suffer the same according to the Lawes of the Land established and not otherwise but an Ordinance of the Lords is no established law The Protestation the Vow and Covenant the solemne League and Covenant the Declarations of both Houses had made and published sithence this unnaturall Warre are amongst other things sworne and set downe to be for the maintenance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said Protestation Vow and Covenant League and Covenant and
Declarations otherwise truth must be said and will be said that there is brought in a new arbitrary and tyrannicall government If the Lords have taken one mans life by an Ordinance they are not bound to take any more and the case differs in case any appeale be made from a tryall by Ordinance to a tryall at common law which was not done by that man whose life was taken away by an Ordinance The Lords ought to remember that his Majesty and his Progenitors have made them a house of Peeres they are trusted to counsell him in peace f Nevels case 8. part Cooks reports and defend him in war his Majesty in Parliament is to consult and treat with the Peers and with his Counsell at Law Judges his Sergeants Atturney and Solicitor and Masters of the Chancery the Lords and that counsell by the respective Writs of Summons to Parliament are to give Counsell g 4 Pars instit fol. 4.9 the House of Commons by their Writ to performe and consent In the House of Lords the Court of Parliament only is for they only examine upon oath h 1 H. 7. fol. 20. with them the King in person sits and by them there erroneous judgements * 14. Ed. 3. c. 5. upon a Petition to his Majesty for obtaining of a Writ of Errour by the advice of the Judges are reversed or affirmed c. the Lords are to remember that their eminency and grandeur is preserved by the Laws if they leave all to will and dishonour their King and make nothing of the Lawes they will make nothing of themselves in the end And therefore it is well worth your observation what was said by Mr Iohn Pym a Member of the House of Commons in his speech against the Earle of Strafford in the beginning of the Parliament which speech is published by the expresse order of the House of Commons the words are these The Law is that which puts a difference betwixt good and evill betwixt just and unjust if you take away the Law all things will fall into a confusion every man will become a Law unto himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envy will become a Law Covetousnesse and Ambition will become Lawes and what diâ—tates what decisions such Lawes will produce may easily be discerned i See part book deel pag. 140.163 c. They that love this Common-wealth as things now stand will use all meanes to procure an Act of Oblivion a generall pardon from his Majesty the Souldiers their Arrears and tender consciences a just and reasonable satisfaction else we all must perish first or last God preserve His Majesty and the Lawes wherein their Lordships and the whole Kingdome are concerned Mai. 17. 1647. David Ienkins Prisoner in the Tower of London FINIS TO THE HONORABLE Societies of Grayes-Jnne and of the rest of the Innes of Court and to all the Professors of the LAW I Have now spent Forty five yeares in the Study of the Lawes of this Land being my profession under and by the conduct of which Lawes this common-wealth hath flourished for some ages past in great splendor and happinesse jam seges est ubi Troja fuit The great full body of this Kingdome hath of late yeares fallen into an extreame sicknesse it is truly said that the cause of the disease being knowne the disease is easily cured There is none of you I hope but doth heartily wish the recovery of our common parent our native country Moribus antiquis stat res Britannica I call God to witnes that this discourse of mine hath no other end then my wishes of the commonâ—gâ—od how farr I have been from Ambition my life past and your owne knowledge of me can abundantly informe you and many of you well know that I ever dâ—tested the ship 〈◊〉 and monopolies that in the beginning of this Parliament for opposing the excesses of one of the Bishopes I lay under three Excommunications and the Examination of seeventy seven Articles in the high Commission Court His sacred Majesty God is my witnes made mee a judge in the parts of Wales against my will and all the meanes I was able to make and a patent for my place was sent mee for the which I have not paid one farthing and the place is of so inconsiderable a benefit that it is worth but 80. l. per Annum when paid and it cost me every yeare I served twice as much out of mine owne estate in the way of an ordinary and frugall expence That which gave me comfort was that I knew well that his Majestie was a just and a prudent Prince In the time of the Attournyships of Master Noy and the Lord Banks they Were pleased to make often use of me and many referrences concerning suits at Court upon that occasion came to my knowledge and as I shall answer to God upon my last account this is truth that all or most of the referrences which I have seen in that Kind and I have seen many were to this effect That his Majesty would be informed by his Counsell if the suits preferred were agreeable to the Lawes and not inconvenient to his people before he would pass them What could a just and pious Prince do more Gentlemen you shall find the Cause and the Curse of the present great distemper in this discourse and God Prosper it in your hands thoughts and words as the Case deserves Hold to the Lawes this great body recovers for sake them it will certainly perish I have resolved to tender my selfe a Sacrifice for them as cheerefully and I hope by Gods assistance as constantly as old Eleazer did for the holy Lawes of his Nation Your well-wisher DAVID JENKINS Now Prisoner in the Tower LEX TERRAE THE Law of this Land hath three grounds First Custom Secondly Iudiciall Records Thirdly Acts of Parliament The two latter are but declarations of the Common-Law and Custome of the Realme touching Royall Government And this Law of Royall-Government is a Law-Fundamentall The Government of this Kingdome by a Royall Soveraign hath beene as ancient as history is or the memoriall of any time The kings prerogative is a principall part of the common Law Com Littâ— 344 what power this Soveraignty alwayes had and used in warre and peace in this land is the scope of this discourse That Vsage so practised makes therein a Fundamentall Law and the Common Law of the Land is common Vsage Plâ—wdens Commentaries 195. For the first of our Kings â—ithence the Norman conquest the first William second William Henry the first Stephen Henry the second and Richard the first the Customs of the Realme touching Royall Government were never questioned The said Kings injoyed them in a full measunt In King Iohns time the Nobles and Commons of the Realme conceiving that the arcient customes and Rights were violated and thereupon pressing the
Queenes death of the Kings eldest son to coyne his money to counterfeit his Great-Seale to levie Warre against him to adhere to such as shall so do are declared by that Act to be high Treason This Statute cannot refer to the King in his politique capacity but to his naturall which is inseperable from the politique for a body politique can have neither Wife nor Child 21. Ed. 4.14 not levie Warre nor do any Act but by the operation of the naturall body A Corporation or body politique hath no soule or life but is a fiction of the Law and the Statute meant not fictitious persons but the body naturall conjoyned with the publique which are inseperable The clause in that Act that no man should sue for grace or pardon for any offence condemned R. 2.11 〈◊〉 cap. 13. 4. pars instit fol. 42. or forfeiture given by that Act was repealed by a subsequent Act in 〈◊〉 Râ—â— holden unreasonable without example and against the Law and custom of the Parliament This condemnes the Proposition for disabling the King to Pardon 4. pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to the which the King consented and so a perfect Act yet Note the Army then about the Town Note that that Law is against private persons and by the 3. cap. thereof the Treasons there declared are declared to be new Treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1. H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. Râ— cap. 5. The Regality of the Crown of England is immediatly subject to God and to none other Plaine words H. 4. shewing where the supreame power is The Commission of Array is in force and no other Commission Ret. Parim â— H. 4. numb 24. an Act not printed this Act was repealed by 4. and 5. P. M. cap. 2. this repealed by the Act of 1. Iacobi and so it is of force at this day for the repealing Statute is repealed 4. pars institu fol. 51. 125. published sithence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the commentaries upon Magna Charta Sir Edward Cooke A booke alowed by Sir Nat. Brent called the reason of the War fol. 65. by their party is holden for the Oracle of the Law who wrote the said fourth part in a calme and quiet time and I may say when there was no need to defend the authority of the Commission of Array For that objection that that Commission leaves power to the Commissioners to tax men secundum facultates and so make all mens estates Arbitrary the Answer is that in levying of publick ayds upon mens goods estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoid discretion in the assessements for so it ever was and ever will be 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. 5. if Kings should refer to the politique capacity it would continue after his death 4. pars Inst 46. which proves that the King cannot be said to be there when he is absent as now he is 2. H. 5. 4 pars instit 46. there is no interregnum in the Kingdome the dissolution of the Parliament by his death shewes that the beginning and end thereof refers to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5. Chap. 6. to the King only it belongs to make Leagues with Forraigne Princesâ— this shewes where the supreame power is 8. H. 6. numb 57. Râ—tt Parl-Cookes 4. pâ—ns instit 25 Nâ— peiviledge of Parliament is grantable for treason H. 6. 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 ayde the King and the King hath an inheritance to hould Parliaments and in the ayds granted by the Commonâ—alty 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 owne cause and aswell as ten or any number may commit treason the greater number may aswell The King by his letters pattents 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 be Judge and party A corporate body can committ no treason Calvins Case 7 pars fol. 11 12 nor can treason be committed against a corporate body 21. E. 4 13. ond 14. but the persons of the men who make that body may committ treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can be committed by or against such a body that body hath no soul no life and subsists only by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the statute of 25. E. 3. must be 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 19. Ed. 4.46 for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forreigne Prince 22. Ed. 4. Fitz juvisdiction last placite without the Kings consent the league holds and is not broken and therefore the representative body is inferior to his Majesties The King may erect a Court of Common-pleas in what part of the kingdome be 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 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 sworn to observe and deliver betwene the King and his people impartially to rich and poor high and low and therefore the Justices and the Ministers of Justice are to be questioned and punished if
doe upon the knees of our hearts agâ—ze 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 eyther in person or by representation We doe acknowledge that the true and sincere Religion of the 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 byrth-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 posteritie 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 Crowne by the two Houses but by inherent byrth-right and that there can bee no Statute without his expresse assent and destroyes the chymera of the Kings virtuall being in the Houses To promise obedience to the Pope or any other State Prince or Potentate 3 Jac. cap. 4 other then the King his Heires and Successors is Treason and therefore those persons who call the Houses the Estates offend this Lawe Such Bills as his Majesty is bound in Conscience and Justice to passe K. Charles Collection of Ordinances fo 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 Lex non distinguit ibid fol. 865. non est distinguendum all the aforesaid Acts and Lawes doe evidently prove the Militia to belong to the king that the king is not virtnally in the two Houses that the king is not considerable separately in relation to his politique capacity that the king is not a person trusted with a power but that it is his inherent byrth-right from God Nature and Lawe and that hee hath not his power from the people These Lawes have none of those distinctions of naturall and politique abstractum concretum power and person in Caesars time this Island had kings and ever since which is almost 17 hundred yeeres agoe No King can be named in any time made in this kingdom 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 viz. Rex vic Wilis Saltem Quia Nos de avisamento assensu consilij nri pro quibus arduis urgentib negetiis nos statum defensionem Regninri Aug. Eccles Anglic. concernentibus quoddam Parliamentum urum apud B. teneri ordinavimus ibid cum Prelatis Magnatib proceribus dicti Regni uri Colloqui habere tractatum ipsi Vicecomiti precipimus firmiter injungendo qd facta Proclamatione in prox Comitatu tuo post receptionem ejusd Brevis dues Milites gladiis cinctos c. eligi facias ad faciendum consentiendum hiis quae tunc ibidem de Communi Concilio nro Angl faventi Deâ— contigerit ordinari super Negotiis antedictis ita quod pro defectis potestatis hujusmodi seu propter improvidam electionem Milium Civium Burgensium pred dicta negotia ura infecta non remanerent The King is Principium caput finis Parliamenti the body makes not the head 4 pars Instit fol. 3 4. nor that which is posterior that which is prior concilium non est Preceptum conciliarij non sunt Praeceptores for Counsell to compell a consent hath not beene heard of to this time in any age and the house of Commons by the writt are not called ad concilium the Writts to the twelve Judges Kings Councell twelve Masters of the Chancery are concilium impensuri and so of the Peeres The writts for the Cominalty Ad faciendum consentiendum Which shewes what power the representative body hath they have not power to give an oath neither do they claime it The Oath of the Justices 18 of E. 3. among Statutes of that yeere The King at all times when there is no parliament in Parliament is assisted with the advice of the Judges of the Lawe 12 in number for England at least hath 2 Sergeants when fewest an Attorny and Solicitor twelve Masters of the Chancery his Councell of State consisting of some great Prelates and other great Personages versed in State affaires when they are fewest to the number of twelve All these persons are alwaies of great substance which is not preserved but by the keeping of the Lawe The Prelates versed in divine Lawe the other Grandees in affaires of State managery of Government The Judges Kings Sergeants Attorny Sollicitor and Masters of the Chancery versed in the Lawe and Customes of the Realme All sworn to serve the King and his people justly truly the King is also sworn to observe the Laws and the Judges have in their Oath a clause That they shall do common right to the Kings people according to the established Laws not withstanding any command of the King to the contrary under the Great Seale or otherwise The people are safe by the Lawes in force without any new The Law finding the Kings of this Realme assisted with so many great men of Conscience Honour and skill in the rule of Common-wealth knowledge of the Lawes and bound by the high and holy bond of an Oath upon the Evangelists settles among other powers upon the King a power to refuse any Bill agreed upon by both Houses and power to pardon all offences to passe any Graunts in his Minority there are many great persons living hold many a thousand pound a yeare by Patents from Edward the sixt passed when he was but ten yeares of age not to be bound to any Law to his prejudice whereby he doth not binde himselfe power of warre and peace coyning of Money making all Officers c. The Lawe for the reasons aforesaid hath approved these powers to be unquestionable in the King and all Kings have enjoyed them till 3. Nov. 1640. It will bee said notwithstanding all this fence about the Lawes the Lawes have beene violated and therefore the said powers must not hold the two Houses will remedy this The answere to this is evident There is no time past nor time present nor will there bee time to come so long as men mannage the Lawe but the Lawes will be broken more or lesse as appeares by the story of every age All the pretended violations of this time were remedied by Acts to which the King consented before his departure 10. Jan. 1641. being then driven away by Tumults And the Houses for a yeere and almost three Moneths From 3. Nov. 1640 to 10
by Inditement 25 E. 3. c. 1. Petition of Right 3 Car. presentment of his good and lawfull Neighbours where such deeds bee done in due manner or by processe made by Writ originall at the Common Law This Statute rehearses Magna Charta pag. 29. and expounds Lex terrae the Law of the Land there mentioned This Law binds all men and the House of Commons for they say they are of the Kings Councell in all points but onely against the disturbers of the service of the Parliament and therefore the imprisonment of severall persons who are not their Members and for no disturbance to their Members is utterly against the Law of the Land and the franchise of the Free-men of this Realme Cui non licet quod minus non â—eet quod majus he who may not doe what is lesse may not doe what is greater they cannot commit a man for murder or Felony much lesse for Treason No Court can fine and imprison but a Court of Record the House of Commons is no Court of Record 8 Pars Cook 120. 27 H. 6.8 the House of the Lords where the King is in his Person his Nobles and his Judges and Councell at Law the Masters of the Chancery assisting is a Court of Record and that is the Court of Parliament where the colloquium tractatus is The House of Commons may present grievances grant or not grant aydes consent or not consent to new lawes but for fining and imprisoning any but as aforesaid is but of a late date and no ancient usage They have no Journall Booke but sithence Edw. 6. time 6 Hen. 8. cap. 15. doth not prove the House of Commons to be a Court of Record it mentions onely to be entered on Record in the Booke of the Clerke of the Parliament if any Member depart into the Country There is no Journall there but sithence Ed. 6. time or it is a remembrance or memoriall as 12 H. 4.23 The whole Parliament is one corporate body 14 H. 8.3 36 H. 8. Dier 60. 4 Pars Instit cap. 1. consisting of the Head and three Estates The Court is only there where the Consilium tractatus is where the consult and treaty is with the King which is in the House of Lords onely The House of Commons claime not to examine upon oath any man no Court can bee without a power to give an oath Courts Baron Court of Pipowders County-Court may and doe give oath No Court can bee without a power to try no tryall can be without Oath and therefore the House of Commons not claiming power to give an Oath can bring no matter to tryall and consequently can be no Court. The behaviour of the Commons at a Conference with the Lords the Commons are alwayes uncovered and standing when the Lords sit with their hats on which shewes they are not Colleagues in judgement for fellow Judges owe no such Reverence to their Companions When was ever Fine imposed by the House of Commons estreated in the Exchequer 11 H. 4. câ— â— 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 〈◊〉 H. 4. cap. 1. 1 H. 5. cap. 1. 8 H. 6. cap. 7. 23 H. 6. cap. 15 that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is 200. pound one to the King another to the party that is duly elected imprisonment for a yeare without Baile or Mainprise and that person who is unduly returned shall serve at his owne charge and have no benefit at the end of the Parliament by the Writ De solutione foendorum Militum Civium Burgensium Parliament and the tryall of the falsity of the returne is to be before the Justices of Assises in the proper County or by action of debt in any Court of Record This condemnes the Committee for undue elections which hath been practised but of late times 3 Ed. â— 20. 5 Ed. â— 41. for besides these Lawes it is against a maxime of 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 Statutes condemne and make those members no members which were not resiant in the County or Boroughs for which they were elected at the time 〈◊〉 the rest 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 Parliament Men. If a Parliament man or his Meniall Servant be assaulted beaten or wounded in the Parliament time 5 H. 4. cap 6. 11 H. 6 cap 11. proclamation shall bee made where the deed is done that the offender shall render himselfe to the Kings Bench within a quarter of a yeare after proclamation made and the offence there to be tryed for default of appearance the offender is declared attainted of the misdeed and it is accorded that thereafter it bee 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 paâ—s Instit fol. 24. Iohn Thornsbyes case Clerk of the Parliam ibid. 10. E. â— Serving of processe upon Thornsby inquired of in the Chancery and there the offenders were convicted The premisses prove that breaches of priviledge of Parliament may bee punished elsewhere then in Parliament Upon all this Discourse it is easie to discerne what fruits may be expected from this Parliament continuing as long as the two Houses please and that there is no safety for this Common-wealth but by the Observations of their ancient Franchises Customes and Lawes CONCLUSION I Say againe that without an Act of Oblivion a gracious generall Pardon from His Majesty the Arreares of the Souldiers paid a favorable regard had to tender Consciences there will bee neither Truth nor Peace in this Land nor any man secure of any thing he hath The End AN APOLOGY FOR THE ARMY Touching the eight Quaeres upon the late Declarations and Letters from the Army touching sedition falsly charged upon them Wherein those Quaeres are resolved and thereby the present proceedings of the Army are proved to be Legall Just Honorable By DAVID JENKINS Prisoner in the Tower of LONDON Quis tulerit Gracchos de seditione querentes Printed in the Yeare 1647. AN APOLOGIE FOR THE ARMY THese Treasonable and insolent Quâ—rieâ— make the Army the Houses Subjects Bracton fol. 118 Stanford f. 2 and not the Kings None by the Lawes of this â—and can in this Kingdome have any Army but His Majesty It appeares the Army doth now evidently perceive that they were mis-led by the specious pretencees of Sulus Papuli the maintenance of the Kings Honour and of the maintenance of