THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins Prisoner in Newgate UPON Divers STATUTES Concerning the Liberty and Freedome of the Subject With a perfect Table thereto annexed Plebs sine Lege ruit LONDON Printed for J. Gyles and are sold at his shop at Furnivals-Inne MDCXLVIII Here JENKINS stands who thundring from the TOWER Shook the bold Senat 's Legislative Power Six of whose words twelve Reames of votes exceed As mountaines mov'd by graines of mustard-seed Thus gasping Lawes were rescu'd from the Snare He that will save a Crowne must know and dare Sould by I. Giles at Furnivals-Inn-gaw J. Berkenhead The Contents The Law of the Land The King Treason A Parliament The present Parliament Certaine Erroneus Positions and Proceedings of both Houses of Parliament The like of the House of Commons The Propositions of the Parliament of both Kingdomes sent to New-Castle The Kings Party The Parliaments Party are Delinquents The Army serving the two Houses The Army Rescuing the King The Liberty of the Subject Messellanâ—a The Law of the Land THE Law of the Land hath for its ground 1. Custome 2. Judiciall Records 3. Acts of Parliament The two latter being Declarations of the Common Law and custome of the Realme pag. 5.21.23 The Law of Royall Government is a Law Fundamentall p. 5. The Kings Prerogative and the Subjects Liberty are determined and bounded by the Law p. 131. The King claimes no power but by the law of the land p. 131. The Law the onely Rule and Direction of the Subject in this present Warre pag. 42 131. Vbi Lex non distinguit â—bi non est distinguendum p. 132. The King THE King of England hath his Title to the Crowne and to his Kingly Office and Power not by way of trust from the two Houses of Parliament or from the people but by inherent Birth-right from God Nature and the Law p. 24 25. 38. 52 53 54 56. 57. There was never King Deposed but in tumultuous and madde times and by the power of the Armyes and they who were to bee the succeeding Kings in the head of them as Ed 3. and Hen. 4. p. 54. Usurpers were Kings de factâ— not de jure p. 54. The King is assisted by the advice of the Judges his Counsell at Law Sollicitor Atturney Masters of Chancery and counsell of State hence the Law hath setled severall Powers in the King p. 27.28 The Kings of England enjoyed that Power in a full measure till King Iohns time p 6 7 8. How Rights of Soveraignty continued in practise from Hen. 3. till 1640 p. 6. The Kings Power not separable from his Person p. 70 71. The Body Naturall and Politique in the King make but one body p. 2.38.71 Every Subject swears homage to the King p. 8. The Law gives reverence to the Person of the King p. 10. Foule mouthed Pamphlets against the King condemned p. 21. The Supream Power is in the King p. 7.13.14.16.57 58. The Oath of Supremacy in relation to the Parliament p. 67.133 The King Supream in Ecclesiasticall causes p. 10. The King the onely Supreame Governour and all other persons have their power from him by his Writ Patent or Commission p. 20 21 22.36 37. 64 65. The power of the Militia is in the King p. 8.37 In the time of Parliament p. 8. The Commission of Array in force p. 13.36 The Power of making League with Forreigners is in the King p. 8.15.17 The power of War in the King p. 20.21 The power of making Officers in the King p. 8. The King onely hath power to make Justices of Peace and of Assize p. 45 100.12â— The power of coynadge in the King p. 8. The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130 The King hath power to remove the courts at Westminster p. 45. The King can do no wrong but his Judges Counselloâ—â—s and Ministers may p. 37.41 So long as men manage the Laws they will be broken more or lesse p. 29. Treason IN the Reign of Ed. 2. the Spencers the Father and the Sonne to cover their Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Allegiance was more by reason of the Kingâ— Crowne that is his Politique Capacity than by reason of his person upon which opinion they inferred three execrable and detestable Consequences First if the King do not demeane himselfe by reason in the right of his Crowne his Leidges are bound by Oath to remove the King Secondly seeing the King could not be reformed by suit of Law that ought to be done per asperte that is by force Thirdly his Leidges be bound to Governe in aid of him and in default of him p. 9.70 Severall Treasons by the Statute 25. 8d 3. p. 12 13 14 15 16 76. The word King in the 25. Edw. 3. must be understood of the Kings natural Person p. 12 13 77. Other Treasons not specified in that Act are declared to bee no Treasons untill the King and his Parliament shall declare otherwise p. 77.101 To seize the Kings Forts Ports Magazine of Warre is High Treason p. 11. 22â— 37.77 To remove Counsellours by Arms is high Treason p. 22.40 To leavie Warre to alter Religion is high Treason p. 40. To leavie war to alter the Law is high Treason p. 11.40.77 To counterfeit the great Seal is high Treason p. 37. To adhere to any State within the Kingdom but the Kings Majesty is high Treason 24.39 To imprison the King untill hee agree to certaine demands is high Treason p. 1â— 22.77 They who imprison the King purpose to destory him p. 163. Deposers of the King adjudged Traitors by the Law of the Land p. 54. A Body Corporate cannot commit Treason but the persons can p. 16. Noble men committing Treason forfeit their Office and Dignity p. 143. Treason how punished by the Law p. 42. Treason doth ever produce fatall destruction to the Offender and never attaines to the desired end and there are two incidents inseparable thereunto p. 135. A Parliament THe word Parliament cometh from the French word Parler to Treat p. 81. The King is Principium Caput Finis Parl. p 26.48.122 The King assembles the Parliament by his Writ Adjournes Prorogues and dissolves the Parliament by the Law at his pleasure p. 57. The Writ whereby the King assembled the two Houses which is called the Writ of Summons at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peers to Consult and Treat with the King that is the Parler of great Concernments touching 1. The King 2. The defence of this Kingdome 3. The defence of the Church of England p. 24.34 p. 25.81.120 121. Counsell is not command Councellors are not Commanders p. 26. The Writ of summoning the Judges Counfell of Lâ—w and 12 Masters of Chancery is to appeare and attend the Parliament to give Counsell p.
Soveraigne Lord at all seasons when need shall be Here the supreame power in the time of Parliament by both Houses is declared to belong to the King At the beginning of every Parliament all Armes are 7. Ed. 2.4 pars instit 14. or ought to be forbidden to be borne in London Westminster or the Subburbs This condemnes the multitudes comming to Westminster and the Guards of armed men All who held by Knights service 1 Edw. 2. de Militibus and had twenty pounds per annum were distraynable ad Arma militaria suscipienda This agrees with the Records of ancient time continued constantly in all Kings times but at this Parliament 3. November 1640. The King out of his grace discharged this duty which proves that the power of warre and preparation thereto belongs not to the two Houses but only to the King The two Spencers in Edw. 2. Edw. 3. Caâ—vins Case Cookâ—e 7. fol. 11. time hatched to cover their Treason this damnable and damned opinion viz That Ligeance was more by reason of the Kings politick capacity then of his person upon which they inferred these execrable and detestable consequences First if the King demeaned not himselfe by reason in the right of his Crowne his Lieges are bound by Oath to remove him Secondly seeing the King could not be removed by suit of Law it was to be done by force Thirdly that his Lieges be bound to governe in default of him All which tenets were condemned by two Parliaments the one called exilium Hugonis in Ed. 2. time the other by 1. Edw. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute the Artiles are extant in the booke called vetera Statuta The separation of the Kings person from his power is the principall Article condemned and yet all these three damnable detestable and execrable consequents are the grounds whereupon this present time relies and the principles whereupon the two houses found their cause The Villeine of a Lord in the presence of the King cannot be seized â—â—â—nden com 322. â—y ass pl. 49 for the presence of the King is a protection for that time to him This shewes what reverence the Law gives to the person of a King Regis 33 Ed. 3. â—yde de roy 203 Fitz 30 H. 7.16 sacro oleo uncti sunt capaâ—es spiritualis jurisdictionis But the two Houses were never held capable of that power Rex est persona mixta cum sacerdote haâ—et Ecclesiasticam spiritualem jurisdictionem This shewes the Kings power in Ecclesiasticall Causes The Lands of the King is called in Law Patromoniâ—n sacrum Com. Sur. Littl Sect. 4. The Houses should not have meddled with that sacred Patromony 3 Ed. 3.19 The King hath no Peere in his Land and cannot be judged Ergo the two Houses are not above him The Parliament 15. Ed. 3. was repealed for that is was against the Kings Lawes and prerogative 4 part institâ— fol. 25. This shewes cleerely the Propositions sent to Newcastle ought not to have beene presented to his Majesty For that they are contrary to the Lawes and his Prerogative The Lords and Commons cannot assent in Parliament to any thing that tends to the dis-inherifion of the King and his Crowne 4 Part Cooke inâ—â—it fol. 14. 42. E. 3. to which they are sworne This condemnes the said Propositions likewise To depose the King Parliamenâ— Rol. num 7. Rex 〈◊〉 suetudâ— Parâ—amenti to imprison him untill he assent to certaine dedemands a warre to alter the Religion established by Law or any other Law or to remove Councellors to hold a Castle or Fort against the King are offences against that Law declared to be treason by the resolution herein after mentioned by that Law men are bound to ayd the King when warre is levied against him in his Realme 25 Ed. 3. cap. 2. King in his Statute must be intended in his naturall body and person that only can dye for to compasse his death and declare it by overt Act is declared thereby treason to incounter in fight such as come to ayd the King in his warres is treason Compassing of the Qâ—â—ens death of the Kings Eldest Sonne to coyne his money to counterfeit his Great-Seale to levy Warre against him to adhere to such as shall so doe are declared by that Act to be high treason This Statute cannot referre to the King in his politique capacity but to his naturall which is inseperable from the politick for a body politick can have neither Wife 〈◊〉 13. nor Childe nor levy Warre nor doe any Act but by the operation of the naturall body A Corporation or body politick hath no soule or life but is a fiction of the Law and the Statute meant not â—â—ctitious persons but the body naturall conjoned with the politique which are inseperable The clause in that Act that no man should sue for grace or pardon for any offence condemned or forfeiture given by that Act 21 Ed. 4.14 â— 2.11 an was repealed by a subsequent Act in 21. R. â— holden unreasonable without example and against the Law and custome of the Parliament This condemnes the Proposition for disabling the King to Pardon 4 pars instit fol. 42. 4. Pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to which the King consented and so a perfect Act yet Note the Army then about the Towne Note that that Law is a-against private persons and by the 3. cap. thereof the treasons there declared are declared to be new treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1 H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. Ed. cap. 5.16 R. 2. cap. 5. H. 4. The Regality of the Crowne of England is immediately subject to God and to none other Plaine words shewing where the supreame power is The Commission of Array is in force and no other Commission Rot. Parlm 5. H. 4. numb 24. an Act not printed this Act was repealed by 4. and 5. P. M cap. 2. this repealed by the Act of 1 Iacobi and so it is of force at this day for the repealing Statute is repealed 4. pars instituâ— fol. 51. 125 published fithence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the commentaries upon Magna Charta Sir Edward Cooke A booke alowed by Sir Na Brent called the reason of the War fol. 65. by their party is holden for the Oracle of the Law who wrote the said fourth part in a calme and quiet time and I may say when there was no need to defend the authority of the Commission of Array For that objection that that Commission leaves power to the
the matters therein mentioned For whose satisfaction in a businesse wherein the lives and fortunes of so many men were concerned and the peace of the Kingdom involved I conceived I was bound in duty and conscience faithfully and truly to set down what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Armie by the Law of the Land is apparent to all men 25 â—d 3. c. 21. 2 R. 2. c. 3. â— H. 4. c. 10. 1 2. Th. Mary c. 10. It is high Treason by the Law of the Land to leavy warre against the King to compasse or imagine his death or the death of his Queene or of his eldest Sonne to counterfeit his Money or his great Seale They are the very words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and his Parliament shall declare otherwise 3 Pars inst p. 22. 2 pars instit pag. 47 48. 4 pars instiâ— p. 23.48.29 3 pars instit cap. Treason p. 9 10 12. they are the very words of the Law King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason than there is declared as appeares by the Lord Cook in the places cited in the Margin A Law book published by order of the House of ComoÌ„ns this Parliament as appears in the last leafe of the 2. part of the Institutes published likewise by their Order The Resolutions of all the Iudges of England upon the said Statute of the 25 Edward 3. 〈◊〉 5. Iohn the Sollicitor in his speech upon the Araignment of the Flarle of Strafford Printed by order of the House of Commons .7 13. as appeares in the said third part of the Institutes Chap. high-High-Treason have been that to imprison the King untill hee agree to certaine demands is high-High-Treason to seize his Ports Forts Magazine for Warre are High Treason to alter the Lawes is High Treason The word King in the Statute of 25 Edw. 3. c. p. 2. must be understood of the Kings naturall person for that person can only die have a Wife have a Son or be imprisoned The Priviledge of Parliament protects no man from treason or felony 4 pars insti c. Parl. p. 25â— howbeit he be a Member much lesse can they protect others Those who cannot protect themselves have no colour to make Ordinances to protect others who are no Members The Statute of 11 Hen. 7. c. 1. doth by expresse words free all persons who adhere to the King 11 H. 7. c. 1. The Army by an Act of Indemnity free themselyes from all those dangers Stamfo d. l. 2. fol. 99. 18 Ed. 3. Statutes at larg 144. 20 Ed. 3. c. 1. 11 Râ—â— 2. c. 10. 4 pars instit pag. 23.48.29 which an Ordinance can no more do than repealé all the Lawes of the Land the whole and sole power by Law to pardon all Treasons Felonies c. being solely and wholly in the King as is cleared by the Statute of 27 H. 8. c. 24. and the Law of the Land in all times Having shewed the danger of the Army by the Law of the Land next consider thâ— Ordinance of the Lords and Commons published the 22 of May last for their Indemnity by the ensuing discourse it doth appeare they have no Indemnity at all thereby The Indemnity proposed by the Ordinance is for an Act done by the authority of the Parl or for the service or benefit thereof and that the Judges and all other Ministers of Justice shall allow thereof This Ordinance cannot secure the Army for these reasons 1. Their Judges are sworne to doe justice according to the Law of the Land 3 Pars inst p. 21. 2 pars inst 47.48 1 pars inst 19â— Princes case 8 reports and therefore the Judges must be forsworne men if they obey it because an Ordinance of both Houses is no Law of the Land and no man can believe they will perjure themselves so palpably and visibly in the eye of the World 2. All tryals for treasons felonies robberies Magna Charta cap. 19. 25 Ed. 3. c. 4. 28 H. 3. c. 3. 37 Ed. 3. c. 42 Ed. 3. c. 3. and such like capitall offences are by the Law of the Land to be by indictment of a Jury appointed out of the Neighbourhood where the offence was done there is no common Jury-man but understands what the Law is in these cases as well as the best Lawyers and the Law makes the Jury Judges of the fact Doclaration of the Army presented at Walden and printed by the appointment of the Officers subscribed whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience and thereupon doe rightly apprehend their danger Now no man can think that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countryes and thereby utterly destroy their own Rights and Properties 3. If the Judges conceive as they may that the taking of other mens horses or goods is not by the Authority of Parliament or for the service and benefit thereof the souldier dies for it they may say to steale or rob any man of his goods is not for the Parliaments service but against it which was alwayes the sense of the people and doubtlesse the Jurors will not think otherwise 4. This Ordinance is restrained to the authority 4 Pars inst p. 1. 3 pars inst p. 22. 1 pars inst p. 1. 28 H. 8. f. iâ— Dier 38 H. 8. fol. 60. 12 H. 7. 20. 1 pars instit 159. Princes case 8 Reports service or benefit of the Parliament the Lords and Commons make no more a Parliament by the Law of the Land than a body without a head makes a man for a Parliament is a body composed of a King their head the Lords and Commons the Members All three together make one body and that is the Parl. and no other and the Iudges may ought and I believe wil according to their oathes proceed as not bound at all by this Ordinance For it is restrained to the authority of Parliam service or benefit thereof whereas the two Houses are not the Paâ—l but onely parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people 5. This Ordinance is against their Ordiinance which expressly prohibits plundring 28 Aug. 1642. Col. of Ord. first part 565.592.605 severall Ordinances and so there is one Ordinance against another whereby their Judges have an out let to proceed on the one or the other and thereby the Army hath no manner of security 6. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest heere and signifies in that language to consult and treat 1 Pars inst 109. 1 pars
the practise of all times and the Custome of the Realâ—â—e Sixthly we maintained the coâ—â—terâ—eiting of the great Sealâ— to be high Treason and so of the usurpation of the Kings forts Do is Shipping Casties and his Revenue and the coâ—â—ing of Money against them We have our warrantâ— by the said Statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Seventhly we maintaine that the King is the onely supreme Governour in all causes They that his Majesty is to be governed by them Our warrant is the Statutes of the first of Queene Elizabeth Chapter the first and the fifth of Queene Elizabeth the first Eightly We maintaine that the King is King by an inherent birth-right 9 Ed. 4. fol. â— by nature by Gods Law and by the Law of the Land They say his Kingly right is an Office upon trust Our warrant is the Statute of the first of King James Chapter the first And the resolution of all the Judges of England in Calvins Case Ninthly wee maintaine that the politick capacity is not to be severed from the naturall They hold the contrary Our warrant is two Statutes viz. exilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to Posterity that it is damnable detestable and execrable Treason Calvins Case yeers 7. fol. 11. Tenthly wee maintaine that who â—â—des the King at home or abroâ—d ought not to be molested or questioned for the same they hold and practise the contrary Our warrant is the Statute of the eleventh of Henry the seventh Chapter the first Eleventhly wee maintaine that the King hiâ—h power to disassent to any Bill agreed by the two Honses which they deny Our warrant is the Statute of the second of Henry the fifth and the practice of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly wee maintaine that Parliaments ought to be holden in a grave and peaceable manner without tumults 3. They allowed multitudes of the meanest sort of the people to come to Westminster to cry for justice when they could not have their will Coll. of Ord. fol. 31. and keepe guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly wee maintaine that there is no State withâ—n this Kingdome but the Kings Majesty and that to adhere to any other State within this Kingdome is high Treason Our warrant is the Statute of the third of King James Chapter the fourth and the twenty third of Queene Elizabeth Chapter the first Fourteenthly wee maintaine that to â—evy a waâ—â—e to remove Couâ—sellours to aâ—ter Religion or any Land established is high Treason They hold the contrary Our warrant is the resolutions of all the Judges of England in Queene Eliznbeths time and their Oracle agrees with the same Fifteenthly wee maintaine that no man should be impusoned put out of his Lands but by due coâ—rse of Law and that no man ought to be adjadged to death but by the Law established the Câ—â—stames of the â—â—â—â—me or by Act of Paâ—â—tement They practise the contrary in London Bristol Keâ—t c. Our warrant is Magna Chanta Chapter the twenty ninth the Pâ—â—ition of Right the third of King Charles and divers Lawes there mentioned Wee of the Kings party did and do detest Monopolies and Ship-money and all the grievanâ—es of the people as muâ—h as any men living wee do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his Lawes wee love Parliamenss if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640. to the tenth of January 1641. time to punish them being all left to justice Where is the Kingâ— fault The Law saith the Kings can do no Wrong 11. pars Cooks Reports Magdalen Colledge Case that he is medicus Regni pater patriae sponsus Regni qui per annulum is espoused to his Realme at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law 〈◊〉 matter is pretended that the 〈◊〉 are not sure to enjoy the Acts passed this Parllament A succeeding Parliament may repeale them The objection is very weake a Parliament succeeding to that may repeale that repealing Parliament That â—eare is endlesse and remedilesse for it is the essence of Parliaments being compleat and as they ought to be of Head and all the Members to have power over Parliaments before Parliaments are as the times are If a turbulent faction prevailes the Parliaments are wicked as appeares by the examples recited before of extreme wicked Parliaments if the times be sober and modest prudent and not biassed the Parliaments are right good and honourable and they are good medicines and salves but in this Parliament excessit medicina mâ—dum In this cause and warre betweene the Kings Majesty and the two Houses at Westmiester what guide had the Subjects of the Land to direct them but the Lawes What meanes could they use to discerne what to follow what to avoid but the Lawes The King declares it Treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this warre The Subjects for a great and considerable part of them Treason being such a crime as forfeits life and estate also renders a mans Posterity â—ase beggerly and infamous looke upon the Laws and finde the Letter oâ— tho Law requâ—res them to a 〈◊〉 the King as before is manifested was ever Subject criminally punisht in any age or Nation for his pursuit of what the Letter of the Law commands The Subjects of the Kingdome finde the distinction and interpretation now put upon the Lawes of Abstractum Concretum Poweâ— and Person body politick and naturall personall presence and virtuall to have beene condemned by the Law and so the Kings Party had both the Letter of the Law and the interpretation of the Letter cleared to their judgments whereby they might evidently perceive what side to adhere to what satisfaction could modest peaceable and loyall men more desire A verbo legis in criminâ—bus poenis non est recedentum hath been an approved maxime of Law in all ages and times Coll. of Ordinances 777. If the King be King and remaine in his Kingly Office as they call it then all the said Lawes are against them without colour they say the said Lawes relate to him in his Office they cannot say otherwise they make Commissions and Pardons in the Kings name and the person of the King and his body politick cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1. 1 Eliz. cap. 1. And the Members of both Houses have sworne
the Reformers and Martyrs and practised in the time of four Princes Fifthly these Propositions taking away from his Majesty all his power by Land and Sea rob him of that which all his Ancestors Kings of this Realme have enjoyed That enjoyment and usage makes the Law and a right by the same to his Majesty They are against their owne Protestation made this Parliament viz. to maintain his Royall Person Honour and Estate They are against their Covenant which doth say that they will not diâ—inish his just power and Greatnesse For these reasons his Majesty hath lest them and as is beleeved will refuse to agree to the said Propositions as by the fundamentall Law of the Land he may having a Negative Voice to any Bils proposed The result of all is upon the whole matter That the King thus leaving of the Houses and his deniall to passe the said Propositions are so far from making him a Tyrant or not in a condition to governe at the present that thereby he is rendred a just Magnanimous and pious Prince so that by this it appeares clearely to whom the Miseries of these times are to be imputed The remedy for all is an Act of Oblivion and a Generall Pardon God save the King DAVID JENKINS now Prisoner in the Tower 28 Aprilis 1647. The Vindication of Iudge Jenkins Prisoner in the Tower the 29. of April 1647. I Was convened upon Saturday the 10 of this moneth of Aprill before a Committee of the House of Commons wherein Master Coâ—bet had the Chaire and I was there to be examined upon some questions then to be propounded to me to which questions I refused to give any other answer then that which wâ—t set downe in a paper I then delivered to the said Mr. Corbet which followeth in these words Gentlemen I stand committed by the House of Commons for High Treason for not acknowledging nor obeying the power of the two Ponses by adhering to the King in this warre I deny this to be Treason for the supreame and onely power by the Lawes of this Land is in the King If I should submit to any examination derived from your vpwir which by the Negative Oath stands in opposition to the Kings power I should confesse the power to be in you and so condemne my selfe for a Traitour which I neither ought nor will do I am sworne to obey the King and the Lawes of the Land you have not power to examine me by those Lawes but by the Kings writ Patent or Commission if you can produce either thereof I will answer the questions you shall propound otherwiss I cannot answer thereto without the breach of my Oath and the violation of the Lawes which I will not do to save my life You your selves all of you this Parliament hive sworne that the King is our onely and supreame Governour your Protestation your Vow and Covenant your solemne League and Covenant your Declarations all of them publisht to the Kingdome that your scope is the maintenance of the Lawes those Lawes are and must be derived to us and enlivened by the onely supreame Governour the Fountaine of Iustice and the life of the Law the King The Parliaments are called by his writs the Iudges sit by his Patents so of all other Dâ—cers the Cities aud â—ownes corporate governe by the Kings Charters and therefore since by the Law I cannot be examinâ—b by you without a power veriveâ— by his Mâ—jesty I neither can nor will nor ougte you to examine me upon any questions But if as private Gentlemen you shall be pleased to 〈◊〉 me any questions I shall really and truely answer evâ—ry such question as you shall demand April 10. 1647. David Jenkins This Paper hath beene mis-represented to the good people of this City by a printed one stilling it my Recantation which I owne not and besides is in it selfe repugnant just like these times the Body fals out with the Head To vindicate my selfe from that Recantation and to publish to the world the realty of the Paper then delivered to Mr. Corbâ—t and the matter therein contained I have published this ensuing discourse No person whoâ— hath committed Treason Mutter 〈◊〉 â—elony hath any assurance at all for so much as one houre of life Lands or Goods without the Kings grâ—tions pardon 27. Hen. 8. cap. 24. The King is not virtually in the two Houses at VVestminster whereby they may give any assurance at all to any person in any thing for any such offence 1. The House of Commons have beelarâ—d to the Kingdome in their Declaration of the 28 of November last to the â—cots Papers p. 8. That the King at this time is not in a condition to goverâ—e No person or thing can derive a vertue to other men or things which it selfe hath not and therefore it is impossible that they should have a vertue from the King to govern which they declare he hath not himselfe to give 2 The Law of the Land is 5 Elizab. cap. 1. That no person in any Parliament hath a vayce in the House of Commons but that he stands a pâ—rson to all intents and purposes as if he had uevâ—r boeu electâ—d or returned if before he sit in the Hause he take not hâ—s Datâ— upon the holy Evangel sts that the Kings Majesty is the onely ond supreame Governour over all persons in all Canses All the Members of the said House have taken it and at all times as they are returned do take it otherwise they have no colour to intermeddle with the publick Affaires How doth this Solemne and Legall Oath agree with their said Declaration That the King is in no condition to govern 〈◊〉 By the one it is sworne he is the only supreme Governour by the other that he is not in a condition to governe 3. The Oath is not that the King was or ought to be or had been before he was seduced by ill Councell our onely and supreame Governour in all Causes over all persons but in the present tense that he iâ— on t only and supream Governont at this present in all causes and over all persons So they the same persons swear one thing and declare to the Kingdome the contrary of the same thing at the same time in that which concerneth the weale of all this Nation 4 The Ministers in the Pulpits do not say what they swear in the House of Commons Who ever heard fiâ—hence this unnaturall Warre any of their Presbyters attribute that to his Majesty which they sweare The reason is their Oath is taken at westminster amongst themselves that which their Ministers pray and preach goes amongst the people To tell the people that the King is now their only and supreame Governour in all Causes is contrary to that the Houses doe now practise and to all they act and maintaine They the two Houses forsooth are the only and supreame Governours in default of the King for that he hath lest his great Councell and
Soueraign Lord calling to remembrance the duty of Allegiance of his Subjects of this his Realm and that they by reason of the same are bound to serue their Prince and Soueraigne Lord for the 〈◊〉 being in his Wars for the defence of him and the land against euery rebellion power might raised reared against 〈◊〉 and with him to â—â—er and abide in seruice in battell if â—ase so require and that 〈◊〉 the same service what fortune euer fall by chance in the same battel against the mind and will of the Prince as in this land sometime passed hath béen seen that it is not reasonable but against al laws reason good conscience that the said subjects going with their Soueraign Lord in Wars attending upon him in his person or being in other places by his coÌ„mandement within this Land or without any thing should lose or forfeit for doing their duty or seruice of Allegiance It be therefore ordained enacted and established by the King our Soueraign by the advice and assent of his Lords Spirituall and Temporall and the Commons in this present Parliament assembled and by authority of the same that from hence forth no manner of person or persons whatsoeuer he or they be that attend upon the King and Soueraign Lord of this land for the time being in his person and do him true and faithfull seruice of Allegiance in the same or be in other places by his commandement in his wars within this land or without that for the said déed and true duty of Allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by Act of Parliament or otherwise by any processe of Law wherby he or any of them shal lose or forfeit life lands tenements rents possessions heriditaments goods chattels or any other things but to bee for that déed and service utterly dischar ged of any vexation trouble or loss And if any Act or Acts or other process of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that Act or Acts or other process of Law whatsoever they shall be shall bee utterly voyd Prouided alwaies that no person or persons shall take any benefit or aduantage by this Act which shall hereafter decline from his or their said Allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degrée soever they be of shall haue any power or authority to pardon or remit any Treason Murders Man slaughters or any other Felonies c. but that the King shall haue the sole and whole power and authority thereof united knit to the Imperiall Crown as of right it appertaineth c. And in the same Statute it is enacted further That none shal haue power of what estate degrée or condition soeuer they be to make Iustices of Eyre Iustices of Assize Iustices of Peace c but all such Officers and Ministers shal be made by Letters-Paâ—ents under the Kings great Seal in the name and by the authority of the King and his Heires Successors Kings of this Realm In the first ear of Queen Mary and the first Chapter It is enacted by the Quéen with the consent of the Lords Conmions That no déed or offence by act of Parliament made treason shall be taken deemed or adjudged to be â—igh Treason but only such as be declared and expressed to be Treason by the Act of Parliament made 25. Ed cap. 2. before mentioned A Declaration of Mr. David Jenkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryals of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Juries and not otherwise unless it be by Act of Parliament THe Common Law of this Land is that every Freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concur for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Charta 19. 2 part inst fol 28 29.46 48 49 50. composed by Sir Ed. Cook and published by the Order of the House of Commons in May 1641. 4 pars instit fol. 41.356 No man shall otherwise be destroyed c. but by the lawfull judgement of his Peers or by the common Law of the Land Peeres to Noblemen are Noblemen Peeres to the ComoÌ„ns are Knights Gen c. Judgement of peers referres to peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by indictment presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29 and by 25 Ed. 3. c. 4.28 Ed. 3. c. 3.37 Ed. 3 c. 8.42 Ed. 3. c. 3. If the Lords wil try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Laws Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suiters to the King that what they had done in future time might not be drawn into president because that which they had done was against the Law b Rot. Par. roul 4. â— 2 Num. 2. part inst p. 50 with this agrees Sir Iohn Lees case Rot. Par. 42. â— 3. Num. 22.23 2. inst f. 50. with this agrees the practise and usage of all times in this Land all the free Commoners of this Kingdome hath alwayes been tryed and acquitted or condemned in capitall causes by Iurers of their equals An Ordinance bindeth not in Law at all c See 4. p. inst f. 23.48.232.298.292 2. p. inst f. 47 48.157.643 4. H. 7. faâ— 1. H. 7. f. 14.3 p. inst f. 41. and but pro tempore as the two Houses now affirme a man's life cannot be tried by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. 2. Philâ—p and Mary c. 10. It is enacted that all trials for Treason hereafter to be had shall be according to the course of the Common Law and not otherwise If the crime charged upon any be Treason against the two Houses against the Parliament it caannot be for there is no Parliament without the King That is no Treason in Law as appeares by 25. Ed. 3. c. 2. 11. R. 2. c. 3. 1. H. 4. c. 10. 1. 2 Philip and Mary c. 10. 3. part of the Institutes page 23 An Act of Parliament to make any a Iudge where he is party is a void act d Dr Bonams case 8. part of Cooks Reports for none can be a Iudge and party in the
proceribus c. King charles being to have conforence and Treaty with his Prelates and Peeres carolus Rex cannot have colloquium et tractatum Conference and Treaty when he is deceased 2 H. 5. Cook title Parl. 3. pars and therefore it is as impossible for any Parliament to continue as long as they please as for a Parliament to make a dead man alive For Repugnancy That which is but for a time cannot be affirmed to have continuance for even it is repugnant The end of the Act 17 Caroli Regis which is to continue at pleasure is in the said act expressed to be to raise credit for Mony for these three purposes First for relief of his Majesties Army and People in the North. Secondly for preventing the imminent danger of the Kingdome Thirdly for supply of other his Majesties present and urgent occasions These ends are ended the relief of that Army the imminent danger supposed was six yeares agoâ— the supply of his Majesty hath been a supply against Him take away the end the meanes thereto are to no purpose Sir Anthony Maines case 5. pars 1. H. 4.6 Littl. cap. Villen take away the cause the effect ceaseth and therefore the three ends of this Act being determined it agreeth with Law and reason the Act should end the Law rejects things unprofitable and uselesse A perpetuall Parliament besides that it incites men to selfe-ends destructive of the publique of which the whole Kingdom hath had sufficient experience will be a constant charge to the Kingdom for that every County and Borough who send Members to the Parliament are by the Law to pay Wages to their Parliament-men which to many Counties will amount above some Subsidies yearly there are many poor Borough-Towns in each County of this Kingdom who being to maintain two Burgesses in Parliament will be quickly beggered if the Parliament have no end for all which reasons it is clear that such long continuance of Parliaments will instead of a remedy which is and ought to be the proper and true ends of Parliament become an insufferable Grievance and Oppression to all the People of the Land The Writ of Summons this Parliament is the Basis and Foundation of the Parliament If the foundation be destroyed the Parliament falls The Assembly of Parliament is for three purposes Rex est habiturus colloquium tractatum cum Praelatis magnatibus et proceribus super arduis negotijs concernentibus 1. nos 2. Defensionem regninostri 3. defensionem Ecclesiâ—â—-Anglica nae This parliament hath overthrown this foundation in all three parts 1. Nos The King they have Chased him away and imprisoned him they have voted no prelates and that a number of other Lords about fourty in the City must not come to the House and about fourty more are out of Town the colloquium tractatus are made void thereby For the King cannot consult and treat there with men removed from thence 2. Defensionem regmâ—nostri that is gone they have made it their Kingdom not His for they have usurped all his Soveraignty 3. Defensionem Ecclesiae Anglicanâ— that is gone that Ecclesia Anglicana must be understood necessarily that Church that at the test of the Writ was Ecclesia Anglicana they have destroyed that too So now these men would be called a Parliament having abated quashed and made nothing of the Writ whereby they were summoned and assembled If the Writ be made void All the Processe is void also that House must needs fal where the Foundation is overthrown Sublaâ—o fundamentâ— opus cadit the foundation being taken away the work fals is both a Maxime in Law and reason For some years past there is no crime from treason to trespass but they are guilty of all treasons Felonies Robberies Tresspasses are câ—ntra pacem coronam dignitatem Regis against the Peace Crown and Dignity of the King as appeares by all Indictments in all Ages Pax Regis the Kings peace Corona Regis the Kings crown Dignitas Regis the Kings dignity are all trod under foot and made nothing Pax Regis the peace of the King is become a Warre against the King his Dignity put into Prison and the Crown put upon their owne heads All the Judges of England have resolved that Noble Men committing Treason have forfeited their office and Dignity Nevils case 7. part 34.2 Iac. their office is to councell the King in time of Peace to defend him in time of Warre and therefore those men against the duty and end of their Dignity taking not only councell but Armes also to destroy him and being thereof attaint by due course of Law By a tacit condition annexed to the estate of their dignity have forfited the same they are the words of the law and therefore they have made themselves incapable to be Members of the upper House The Oppressions of the People Briberies Extortions Monopolies ought to be inquired after by the House of Commons and complained of to the King and Lords What have they done The House of Commons cannot by the Law commit any man to prison who is not of the said House for Treason Murder or Fellony oâ— any thing but for the disturbance of the publique peace by the priviledge of the whole Body They have no power by the Writ which the King issueth to elect and returne Members of that house so to do For the Writ for them is onely ad faciendum consentiendum to those things where of his Majesty shal consult and treat with his Prelates and Nobles dâ— communi consilio regni shall be there ordained as appears by the Writ Here is no separate power given over the Kings people to them but only ad faciendum â—onsentiendum and in all times this â—â—th beene expounded and restrained to that which concerned their own Members in relation to the publique Service 4. pars inst 23 24 25. as they are Members of the corporate Body of the Parliament where of the King is the Head But that the House of Commons have commited any man for Treason Murder or Felony or for any offence that had no relation to a Member of the House of Commons as it is against Law and reason so no instance can be given till this Parliament All Questions and Tryalls where witnesse are examined 19. H. 6.43.22 E 4.22.5 H. 4. c. 8.3 H. 6.46 the Examination is upon Oath by the Law by all our Books Statutes every dayes practice Examination without an Oath is but a loose discourse therefore the House of Commons not claiming power to give Oath have no power to examine any man No man shall be imprisoned by the King or his Councell 25. E. 3. c 4. Petition of Right 3 Car. unles it be by indictment presentment of his good and lawfull Neighbours where such deeds be done in due manner or by process made by Writ original at the Common Law this Statute rehearses Magna Charta p. 29. expounds
Session for publishing the Lord Cook his Bookes which Order they may find printed in the last Leafe of the second part of his Institutes in these words viz. Die Mercurii 12. May 1641. VPon Debate this Day in the Commons House of Parliament the said House did then desire held it fit that the heir of Sir Edward Cooke should publish in print the commentary upon Magna Charta the pleas of the Crown and the jurisdiction of Courts according to the intention of the said Sir Edward Cooke and that none but the Heir of the said Sir Edward Cooke or he that shall be authorized by him do presume to publish in print any of the foresaid Bookes or any Copy thereof H. Elsynge Cler. Dom. Com And I do further desire them that they would reade and peruse M. Solicitour Saint-Iohn and M. John Pym their Bookes published likewise this Session Whose Titles are as followeth viz. An Argument of Law concerning the â—ill of Attainder of High Treason of Thomas Earle of Strafford At a Conference in the Committee of both houses of Parliament By M. Saint John his Majesties Solicitor Generall Published by Order of the Commons House London Printed by G. M. for Jo. Bartlet At the Sign of the Guilt Cup neare S. Austins gate in Pauls Church yard 1641. And the Speech or Declaration of Iohn Pym Esquire After the Recapitulation or Summoning up of the charge of High Treason against Thomas Earle of Strafford 12 Aprill 1641. Published by the order of the Commons House London Printed for John Bartlet 1641. 1. Nothing is delivered for Law in my Books but what the H. of Commons have avowed to be Law in Bookes of Law published by their command this Session and agreeable to the Bookes of Law and Statutes of this Realme in all former Times and Ages 2. The supposed offence charged on me is against the two Houses and none ought to be judges and parties by the Law of this Land in their owne case 3. I desire the benefit of Magna Charta the Petition of right other good Lawes of this Land which ordaine that all mens Tryals should be by the established Lawes and not otherwise they are the very words of the petition of Right An Ordinance of both Houses is no Law of the Land 1 Part. col of Ordinances fol 728 2 Pars iust fol 47 48 157 143 4 par instit 23 232 298 4 H 7 18 by their own confession and by the Bookes of the Lord Cooke published by their Order as aforesaid this Session in six several places For Sedition in my Books there is none but such as they have authorised this Session to be published printed To publish the Law is no sedition These Positions following I doe set downe for the Law of the Land in my books and they themselves have justified and avowed them as aforesaid we agree the Law to be and to have been in all times in all the particulars following as here ensueth 3 Part instit pag 12 M Sollicitor Pag. 12 3 part instit pag 9 M Pym p. 28 3 part instit 3 10 12 16 3 part instit pag 9 M Sollicitor p 0 10 136 M Sollicitor pag 9 M Sollicitor pag 9 M Sollicitor pag 23 4 pars 4 instâ— p 125 Iustice Huttons argument fol. 39 40 4 part instit 2 part instit articul super chartas cap. 5 1. To imprison the King is high treason 2 To remove Councellours from the King by force is High Treason 3. To alter the establisht Lawes in any part by force is High Treason 4. To usurp the Royall Power is High Treason 5. To alter the Religion establisht is High Treason 6. To raise rumours and give out words to alienate the peoples affections from the King is High Treason 7. To sesse Souldiers upon the people of the Kingdome without their consent is High Treason 8. The execution of paper orders by Souldiers in a military way is high Treason 9 To coanterfeit the great Seale is High Treason 10. The Commission of Array is in force and none other 11. None can make Judges Justices Sheriffes c. but the King The King makes every Court 12. The great Seale belongs to the Kings Custody or to whome he shall appoint and none other 13. 1 part Coll. of Ordin Cook utâ— supra 4 partâ— inst 25. Ordinances of one or both Houses are noe lawes to binde the people 14. No priviledge of Parliament holds for Treason Felony or brâ—ach of the Peace not for 20. Parliament-men forty nor three hundred 15. M. Solicitor pag. 8.70 M. Solicitor pag. 12.27 M. Solicitor pag. 26. M. Solicitor pag. 35. To subvert the fundamentall lawes is High Treason 16 To levey War against the person of the King is High Treason 17. To perswade Forreiners to levey war within this Kingdome is High Treason 18 To impose unlawfull Taxes to impose new Oathes M. Pym p. 8. is High Treason 19. The King can doe no wrong 20. M. Pym p. â—7 It is a pernitious Doctrine to teach Subjects they may be discharged from the oath of Allegience M. Pym p. 24. Then what means the Doctrin of both Houses of the Votes 11 of Feb. 1647. 21. A necessity of a mans own making doth not excuse him 3. parr inst pag. 9 The requiring forcing of the Militia brought the necessity of arming upon the Houses 22. None can leavy war within this realme without authority from the King for to him only it belongeth to levy war by the common law of the land to doe otherwise is high Treason by the said Common law The only quarrel was is the Militia for which so much blood hath been spent M. Solicitor 70.71 4. part inst pag. 1.3.4 4. pars inst 41.356 and Treasure 23. No Parliament without the King he is Principium caput finis 24. Presentment or tryall by Jury is the bright-right of the Subject There is no doubt but that many in both Houses are free from this great sin and that most of the prevailing party had at first no intentions to proceed so farre but the madnesse of the People who are very vnstable and so they will find them and the successe of their Armies having this great rich City to supply them with all accomodations have so elated them that the evil is come to this height For my selfe to put me to death in this cause is the greatest honour I can possibly receive in this World Dulce decorum est mori pro partia And for a Lawyer and a Judge of the Law to die dum sanctis patria legibus obsequitur for obedience to the Lawes will be deemed by the good men of this Time a sweet smelling sacrifice and by this and future Times that I dyed full of yeares and had an honest and an honourable end And posterity will take knowledge of these Men who put some to death for subverting of the Lawes and others for supporting of them c. Yet mercy is above all the â—orkes of God Bracton l c. 9 p 107 4 pars inst 342 343 Stanford 99 The King is Gods Vâ—carâ—on earth In Bracton who was a Judge in Henry 3. time you shall â—â—nd the Kings oath To shew mercy is part of it You are all his children say and doe what you will you are all his Subjects and He is your King and parent Pro magno peccato paululum supplicii satis est patri and therefore let not the prevailing party be obdurate out of a desperation of safety That which is past is not revocable Take to your thoughts your parents your wives your children your friends your fortunes your countrey wherein Forreigners write there is Mira aeris suavitas rerum omnium abundantia Invite not them hither the only way to be free of their company will be To restore his Majesty and receive from Him an Act of Oblivion a generall pardon Assurance for the Arreares of the Souldiery and meet satisfaction to tender consciences God preserve the King and the Lawes DAVID JENKINS Prisoner in New-gate
116. The Writ of summoning the Commons is to doe and to consâ—nt to such things which shall happen to bee ordained by Common Counsell there viz. in the Parliament p. 25.26.115 The Parliament is a Corporation composed of the King the head and the Lords and Commons the Subject body p. 5. l. 22. p. 19.20.49.50.80.122.142.145.146 And it hath power over our Lives Libertyes Lawes and Goods p. 118. The Court of Parliament is onely in the House of Lords where the King sits in person p. 116.122.144 The Office of the Lords is to Counsell the King in time of Peace and to defend him in time of War p. 116.142 It belongs to the House of Lords to reforme erroneous Iudgements given in the Kings Bench to redresse the delayes of Courts of Iustice to receive all Petitions to advise his Majesty with their Counsell to have their Votes in Voting or abrogating of Laws and to propose for the Common good what they conceive meet p. 33. How Errours in Iudgement are reversed by the House of Lords p. 55. At a Conferrence the Commons are alwaies uncovered and stand when the Lords sit with their hats on which shewes that they are not Colleagues in Iudgement with the Lords p. 147. Every Member of the House of Commons takes the Oath of Allegiance and Supremacy before his admission into the House p. 67.133 Briberies Extortions Monopolyes ought to bee enquired after by the House of Commons and complained of to the King and Lords p. 114. It belongs to the House of Commons 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 Lawes p. 33.115 116 117 118. Because making of new and abrogating of old Lawes both induce Novelties and because Bils in both Houses may passe but by one or two voices or very few and perhaps of no Iudicious men who oftentimes carry it by making the Major part which involves the consent of all therefore the Law makes the King assisted therein by a great number of Grave Learned and Prudent men the Judge of those Bils whether they be necessary for the Publique Good or no. p. 32 3â— 53.57.123 And the King upon all Bills hath liberty of assenting or dissenting p. 18.28.39.111 And in case of the Kings Minority the Protector hath his liberty and negative voice in respect of the King p. 52. The styles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either the King Ordaines at his Parliament c. Or the King Ordaineth by the advice of his Prelates and Barons and at the humble petition of the Commons c. In Hen. 7. time the style was altered and hath so continued to this day p. 24.71 No Act of Parliament bindes the Subject without the assent of the King p. 71.72 When an Act of Parliament is against common Right or Reason or repugnant or impossible to bee performed the Common Law shall controle it and adjudge it to be void And such is an Act for a perpetual Parliament p. 139. An Act of Parliament that a man shall bee Iudge in his own cause is a voyd Act. p. 139. An Adjournment of the parliament makes no Sâ—ssion p. 137. There is no Sâ—ssion till a prorogation or dissolution of the Parliament p. 137. All the Acts of one Sâ—ssion relate to the first day of the Parliament p 138. The two Houses ought to take care of the preservation of the Kings Person p. 18. The Lords and Commons cannot assent to any thing that tends to the disinherison of the King and his Crown to which they are sworn p. 11. The two Houses ought not to meddle with the Kings Revenue p. 11. Armes are not to be borne in London or Westminster in time of Parliament p. 8.39 The Priviledge of Parliament protects no man in case of Treason or â—elony p. 15.16 78. Parliaments are as the times are if a turbulent Faction prevailes the Parliament are wicked if the times be sober modest prudent and not biassed the Parliament are right good honourable and good Medicines and Salves p. 41.42 The present Parliament THis Parliament beganne 3. Novemb. 1640 and in the beginning thereof the King acquitted the Ship-Money Knighthood-Money seven Courts of Justice consented to a Triâ—niall parliament setled the Forrest bounds tooke away the Clarke of the Market of the Houshold trusted the Houses with the Navy 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 nor can bee devised to serve us neither hath been in any time before p. 3â— Notwithstanding all this Jan. 10. 1641. the King was driven away from London by frequent Tumults and 2. thirds and more of the Lords had deserted that House for the same cause and the greater put 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 counterfeit Seale and in the Kings name against his consent leavying War against Him and seizing his Forts Ports Magazins and Revenue and converting them to his destruction the subversion of the Law and Land laying Taxes on the people never head of before in this Land devising new Oathes to oppose the Forces raised by the King c. p. 35. From the 3 Novem. 1640. uâ—â—o Ian. 10 164â— they had time to persecute all evil Counsellors and Iudges p 17 4â— From that time the King was driven away the two Houses stood in opposition to the king and his power p. 66. This became no Parliament when the King with whom they should parley was driven away and it continues so whilst his Majestic is restrained as a prisoner p. 35.81 And the houses now severed from the King have no power at all no more than the body hath being severed from the head p. 80.112 The 2. Houses do not now act by the Kings Writ but contrary to it p. 121. And so their Acts are Null p. 122 141. The Act for continuing this parliament so long as both Houses please is voyd because it is 1. Against Common right for thereby the parliament men will not pay their debts And they may doe wrong to other men Impune besides the utter destruction of all mens actions who have to doe with Parliament men by the Statute of Limitation 21. Jacob. 2. Against common reason for parliaments were made to redresse publique Grievances not to make them 3. Impossible the Death of his Majesty whom God long preserve dissolving it necessarily 4. Repugnant to the Act for a Trienniall parliament and to the Act for holding a parliament once a yeare p. 139.140 The end of continuing this parliament was to raise Credit for mony for three purposes And the three ends of the Act being determined it agreeth with Law and Reason the Act should end p. 141. A perpetuall parliament
Commissioners to tax men secundum faculâ—ates and so make all mens estates Arbitrary the answer is that in lâ—vying of publicke aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoyd discretion in the assesments for so it ever was and ever will bee By this appeares that the Votes of the two Houses against the Commission of Array were against the Law The death of the King dissolves the Parliament H. 9. if Kings should referre to the politick capacity it would continue after his death 2 H. 5 â— parâ— instit â—6 4 pars Iust 46 which proves that the King cannot be said to be there whâ—â— he is absent as now he is there is no inter regnum in the Kingdome the dissolution of the Parliament by hiâ— death shewes that the beginning and end thereof referrs to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5 Chap. 6. to the King onely it belongs to make Leagues with Forraigne Princes this shewes where the supreame power is and to whom the Militia belongs 8. H. 6. numb 57. Rott Parl. Cooks 4 pars instit 25. H. 6. No priviledge of Parliament is grantable for treason felony or breach of the peace if not to any one Member not to two not to ten not to the major part 19 H. 6.62 The Law is the inheritance of the King and his people by which they are ruled King and people And the people are by the Law bound to ayd the King and the King hath an inheritance to hold Parliaments and in the ayds granted by the Commonalty If the major part of a Parliament commit treason they must not be Judges of it for no man or body can be Judge in his own cause and aswel as ten or any number may commit treason the greater number may aswell The King by his Letters patents may constitute a County palatine and grant Regall rights 32 H. 6.13 Plowd 334. this shewes where the supreame power is 17. Ed. 4. Rot. Parl. numb 39. Ed. 4. No priviledge of Parliament is grantable for treason fellony or breach of the peace if not for one not for two or more or a major part The same persons must not bee Judge and party Calvins Case 7. pars fol. 11 12. A corporate body can commit no treason nor can treason be committed against a corporate body 21. E. 4.13 and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can bee committed by or against such a body that body hath no soule no life and subsists onely by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the Statue of 25. E. 3. must bee intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby his politique is there also and not at Westminster for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forraigne Prince 19 Ed. 4.46 22 Rd. 4. Fitz. jurisdiction â—â—st plaeite without the Kings consent the league holds is not broken and therefore the representative body is inferiour to his Majesties The King may erect a Court of Common pleas in what part of the Kingdome he pleaseth by his letters patents can the two Houses do the like 1 Ed. 5. fol. 2 It cannot be said that the King doth wrong 1 Ed. 5. 4 Ed. 4.25 5 Ed. 4 29. declared by all the Judges and Serjeants at Law then there The reason is nothing can be done in this Common wealth by the Kings grant or any other act of his as to the Subjects persons goods Lands or liberties but must be according to established Lawes which the Judges are sworne to observe and deliver betweene the King and his people impartially to rich and poore high and low 2 Pars instit 158. and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Lawes be violated and no reflection to be made on the King All Counsellors and Judges for a yeere and three moneths untill the tumults began this Parliament were all left to the ordinary cause of Justice what hath been done sithence is notorious For great Causes and considerations an Act of Parliament was made for the surety of the said Kings person R. 3. 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the Houses have greater reason to care for the preservation of his Majesty The Subjects are bound by their allegiance to serve the King for the time being Hâ—n 7. 11 H. 7. c. 1. against every Rebellion power and might reared against him within this Land that it is against all Lawes reason and good conscience if the King should happen to be vanquished that for the said deed and true duty and allegiance they should suffer in any thing it is ordained they should not and all Acts of processe of Law hereafter to be made to the contrary are to be void This Law is to be understood of the naturall Person of the King for his politick capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no Statute â—â— H. 7.20 4 H. 7.18 Henry 8. 7 H. 7.14 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to do justice to all men 24 H. 8. c. 12. 25 H. 8. c. 28 this is affirmed of the King and not of the two Houses The Commons in Parliament acknowledge no superiour to the King under God the House of Commons confesse the King to be above the representative body of the Realm Of good right and equity the whole and sole power of pardoning treasons fellonies c. 27 H. 8. c. 2â— Note belong to the King as also to make all Justices of Oyer and Terminer Judges Justices of the peace c. This Law condemns the practice of both Houses at this time The Kings Royall Assent to any Act of Parliament signed with his hand expressed in his Letters patents under the great Seale and declared to the Lords and Commons shall be as effectuall 33 H. 8. cap. 21. as if he assented in his owne person a vaine Act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principal members of the body Dier 38. H. 8. fo 59.60 the Commons the inferiour members and so the body is composed therefore there is no more Parliament without a King then there is a body without a head There is
a Corporation by the Common-Law 14 H. 8. f. 3. as the King Lords and Commons are a Corporation in Parliament and therefore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court or to keepe the peace 34 Ed 3.48 1 Ed. 4.2 The death of the King discontinues all Pleas by the Common-law 2 H. 4.8 1 H. 7.10 1 Ed. 5 1. which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed 6. 2 Ed. 6. c. 7. Patents or Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death where is the virtuall power All authority and jurisdiction spirituall and temporall is derived from the King 1 Ed. 6. c. 2. therefore none from the Housess His Majesties Subjects â— 3 Ed. 6. c. 2. 11 H. 7. c. 1. Calvins Case sâ— part Cooke 1 Pars instit 69. according to their bounden duties ought to serve the King in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for warre to be in the King It is most necessary both for common policy and duty of the Subject 5.6 Ed. c. 11. to restraine all manner of shamefull standers against their King which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity and universall weale of the Realme This condemnes their continuing of the weekely Pamphlets who have beene so foule mouthed against his Majesty The punishment of all offendors against the Lawes Q. â—â—ary 1. Mar. Pl. 2. cap. 2. belongs to the King and all jurisdictions do and of right ought to belong to the King This leaves all to his Majesty All Commissions to leavy men for the warre 4.5 P. M. c â— Q Eliz. 10 Eliz. Pl. 315. are awarded by the King The power of warre onely belongs to the King It belongs to the King to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sble governmeni de ses subjects Plow 234.242.213 Calvins case 7. pars fol. 12. Plow com 213. Corps naturall le Roy politique sunt un corps That is the king hath the sole government of his Subjects the body politick and the naturall body of the King make one body and not divers and are inseperable and indivisible The body naturall and politique make one body Plou 914.243.213 Calvins case 7. pars fol. 12 and are not to be severed Ligeance is due to the naturall body and is due by nature Gods Law and Mans Law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons 1 Eliz cap. 1 Candries case 5 pars fol. 1 at every Parliament takes a corporall Oath That the King is the supreame and onely Governour in all causes in all his Dominions otherwise he is no Member of that House The words of the Law are in all causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law 4â— Eliz. 3. pars instit fol. 6.2 Candries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors adjudged Treason by all the Judges of England To depose the King 39 Eliz. Hil. 1 Iacobi ibid or take him by force to imprison him untill he hath yeelded to certaine demands adjudged Treason and adjudged accordingly in the Lord Cobbams Case Atising to alter Religion established 39 Ed. Brad case f. 9. 16. By all the Judges of England ibid. 10. Eli. Plow 316 or any Law is treason so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24.3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Law makes not the servant greater then the Master nor the subject greater then the King for that were to subvert order and measure The Law is not knowne but by Usage and Usage proves the Law 10 Eliz. Plow 31â— and how Usage hath been is notoriously knowne The King is our onely rightfull and lawfull Leige Lord and Soveraigne K. Iames 1 Iac. cap. 1 9 Ed 4 fol 8 we doe upon the knees of our hearts adnize constant Faith Loyalty and Obedience to the King and his Royall progeny in this high Court of Parliament where all the body of the Realme is either in person or by representation We doe acknowledge hat the true and sincere Religion of he Church is continued and established by the King And doe recognize as we are bound by the Law of God and Man the Realme of England and the Imperiall crowne thereof doth belong to him by inherent birth-right and lawfull and undoubted succession and submit our selves and our posterities for ever untill the last drop of our blood be spent to his rule and beseech the King to accept the same as the first fruits of our Loyalty and faith to his Majesty and his posterity for ever and for that this Act is not compleat nor perfect without his Majesties assent the same is humbly desired This proves that the Houses are not above the King that Kings have not their titles to the Crown by the two Houses but by inherent birth right and that there can be no Statute without his expresse assent and destroyes the Chimera of the Kings virtuall being in the Houses To promise obedience to the Pope or any other State 3 Iae. cap. 4. 23 Eliz. c. 1. Prince or Potentate other then the King his heyres and successors is treason and therefore those persons who call the houses the Estates offend this Law Such Bils as his Majesty is bound in conscience and justice to passe K. Charles Collection of Ordinances fol. 727. 1 pars ib. fol. 728. are no Law without his assent To designe the ruine of the Kings person or of Monarchy is a monstrous and injurious charge Vbi lâ—x non distinguit non est distinguendum ibid. fol. 865. all the aforesaid Acts and Lawes do evidently prove the Militia to belong to the King that the King is not virtually in the two Houses that the King is not considerable separately in relation to his politick capacity that the King is not a person trusted with a power but that it is his inherent birth-right from God Nature and Law and that he hath not his power from the people These Lawes have none of those distinctions of naturall and politicke abstractum concretum power and person in Caesars time this Island had Kings and ever since which is almost 17 hundred yeares agoe No King can be named in any time made in this Kingdome by the people A Parliament never made King for they were Kings before the Parliaments are summoned by the Kings Writs which for Knights Citizens and Burgesses begins thus
Roys ' avisera or nâ— veulâ— it was against Magna Charta Articuli Cleri and many other Acts of Parliament And might have farther given these reasons if it had so pleased him for the same First that this Bill destroyes the Writ whereby they are made two Houses of Parliament 14 Hen. 7. fol. 22. Evesque est signior de grand honneâ—r the King in the Writ being â—um praelaris colloquium habtre Secondly they have been in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have been Bishops here sithence we were Christians and the Fundamentall Law of the Kingdome approves of them If any of them were conceived offensive they were left to Justice and his Majesty would put in inoffensive men in their places but sithence his Majesty hath passed the Bill for taking away their Vores in Parliament it is a Law that bindes us so farre Upon the whole matter the Law hath notably determined that Billa agreed by both Houses pretended to be for the publick good are to be judged by the King for in all Kings Reignes Bils have been preferred by both Houses which alwaies are pretended to be for the publique good and many times are not and were rejected with Roy's auisera or Roy ne veult This Parliament began the 3 of Novemb. 1640. before that time in all the kings reign no armed power did force any of the people to doe any thing against the Law what was done was by his Judges Officers Refers and Ministers from that time untill the 10. os Ia. 1641. when the King went from London to avoyd the danger of frequent tumults being a year and 3 months Privie Counsellors and all his Justices Ministers were lest to the Justice of the Law there wanted not time to punish punishable men The Sphere of the House of Commons is to represent the grievances of the Countrey to grant aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating of Lawes The Orb of the House of Lords to reforme erroneous judgements given in the Kings Bench to redresse the delayes of Courts of Justice to receive all Petitions to advise his Majesty with their Councell to have their Votes in making or abrogating of Lawes and to propose for the common good what they conceive meet Lex non cogit ad impossibilia Subjects are not to expect from Kings impossible things so many Judges Councellours Sheriffes Justices of the Peace Commissioners Ministers of State that the King should over-looke them all cannot be it is impossible The King is vertually in his ordinary Courts of Justice so long as they continue his Courts their charge is to administer the Lawes in being and not to delay deferre oâ— sell Justice for any Commandment of the King We have Lawes enough Instrumenta boni saeculi sunt bonâ— viri good Ministers as Judges and Officers are many times wanting the houses propose new Lawes or abrogation of the old both induce novelty the Law for the reasons aforesaid makes the King the onely Judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings Party adheared to him the â—aw of the Lnnd is their Birth-â—ight their Guide no offence is committed where that is not violated they found the Commission of Aâ—â—ray warrauted by the Law they found the King in this Parliament to have quitted the Shâ—-money Knighthood-money seven Courts of Justice consented to a Triennall Parliament setled the Forrest hounds tooke away the Cearke of the Market of the houshold trusted the House with the Navy passed an Act not to dâ—â—olve this Parliament without the Houses assent no people in the world so free if they could have been content with Lawes Oathes and reaâ—â—â— and nothing more could or can be devised to secure us neither hath been in any time Notwithstanding all this we found the King driven from London by frequent tumults that two thirds an dt more of the Lords had disserted tha House for the same cause and the greater part of the House of Commons left that House also for the same reason new men chosen in their places against Law by the pretended Warrant of a connterfet Seale and in the Kings name against his consent leavying Warre against him and seizing his Ports Forts Magazines and Revenue and converting them to his destruction and the subversion of the Law and Land laying Taxes on the people never heard of before in this Land devised new Oathes to oppose Forces raised by the King nor to adhere to him but to them in this Warre which they call the 〈◊〉 the Oath and the V. W. and Covenant By severall wayes never used in this kingdome they have raised Monies to foment this Warre and especially to inrich some among them namely first Exâ—is secondly Contributions thirdly Sequestrations fourthly Fift-parts fiftly Twentieth-parts sixtly 〈◊〉 money seventhly Sale of Plundered gpods eightly Loanes ninthly Benedolentes tenthly 〈◊〉 upon their fast-dayes eleventhly new Impoâ—tions upon Merchandâ—res twelfely Gâ—ards maintained upon the charge of private men thirteenthly Fifty Subâ—â—dies at â—â—e time fourteenthly Compossâ—â—ons with such as they call Delinquents fifteentlaly Sale of Bishppâ— Lands c. From the Kings Party meanes of subsistance are taken 〈◊〉 R 3. cap. 3 Bract. li. 3. c. 8. Stanford 192. Sir Ger. Flâ—â—twoods Case S. pars Cook 7. H. 〈◊〉 â—ast leafe before any Indictment their Lands seized their goods taken the Law allowes a Traytor or Fellon attained Necessaria sibi familiae suae invictu vestitu where iâ— the Covenant Where is the Petition of Right Where is the liberty of the Subject First we have ayded the King in this Warre contrary to the Negative Oath and other Votes Our Warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly 〈◊〉 Insâ—it a 25. a Instit 696 The Law so at the Edition of that booke Hutton and Crook we have maintained the Commission of Array by the Kings Command contrary to their Votes We are warranted by the Statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the â—â—cle of the Law as they call him Thirdly we maintained Archâ— Bishoâ—â— and Bishops whom they would suppresse Our warrant is Magna-Charta and many Statutes more Fourthly we have maintained the Booke of Common mayâ—r they suppresse it Our warrant is five acts of Parliament in Edward the fixt and Queene Elizabeths time 5 Pelchae 35 Elizabeth inter placita Coronae in Banâ—â— Regis New booke of Entries fol. 252. Penry for publishing two scandalous Libels against the Church Government was indicted arraigned attainted and executed at Tyburne Fiftly we maintained the Militiâ—â— of the Kingdome to belong to the King they the contrary Our warrant is the Statute of the seventh of Edward the first and many Statutes â—â—thence
constantly in this Parliament that the King to the onely supreme Governour in all causes ever all persons at this present time For what 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 been used by the Kings Command for his Commission to â—savie 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 Judgesa and Officers their places and callings It is Objected 〈…〉 the King cannot suppresse his Courts of Justice and that this warre tended to their suppression The answer is Sol. 7 pars The â—a le of Westmerlands Ca e. 1 Eliz. Dier 165. 7 pâ—rs Cooke 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 The case of discontinuance of Processe and his Majesty is not obeyed but the Votes of the Houses and his Judges breaking that condition in Law of trust and loyalty implyed in their Patents are no longer his Judges they obey and exercise their places by vertue of Writs and Processes under a counterfet Seale The King onely can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Justices of the Peace c. The Kings Patent makes Judges 28 H. 8. Dâ—â—r 11. The chiefe Justice of the Kings Bench is made by the Kings Writ onely of all the Judges The Great Seale is the key of the Kingdome Artiâ—uli super chartas cap. 5. 2 pars instit 552. and meet it is that the King should have the key of his Kingdome about him which confutes their saying that the King got the Seale away surreptitiously The King Brittâ—n sol 23. and he only may remove his Courts from Westminster into some other place at Yorke the Tearmes were kept for seven yeares in Edward the first 's time but for the Court of Common Pleas the placâ— must be certaine for the Kings Bench and Chancery the King by the Law may command them to attend his person alwaies if it seeme so meet 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 that the King may grant conusance of all Pleas at his pleasure within any County or Precinct to be holden there onely 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 Tearmes as he sees cause All which the two houses have violated Some seeming objections of Master Prinn's scattered in divers books answered and the truth thereby more fully cleered THE first of Henry the fourth 1 Ob. revived the Statute of the eleventh of Richard the second and repeales the one and twentieth of Richard the second whereby certaine persons were declared Traytors to the King and kingdome being of the Kings Party by 11 Rich. 2. True but note the eleventh of Richard the second Sol. 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 drawne into example and that no Treason should be but such as the twenty fifth of Edward the third declares 9 Ed. 4. fol. â—0 All these are Acts passed by the King and the three Estates nor to be drawne into example in a tumultuous time by a besieged Parliament with an Army and Henry the fourth being an Usurper makes that Act of the first of Henry the fourth to secure himselfe Also what is this to the Votes of the two Houses onely at this time The Court of Parliament is above the King 2. Ob. for it may avoyd his Charters Commissions c. granted against the Law And the Law is above the King By the same reason you may say that the Courts of Chancery Sol. 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 Againe it is no Parliament without the King and the King is the head thereof he is principium capus finis of a Parliament as Modus tenendi Parliament hath it and two houses onely want principiwn caput finis 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 the King is above himselfe The Parliament can enlarge the Kings Prerogative 3. Ob. therefore it is above him If the King assent Sol. otherwise not and then it is an Act of Parliament and otherwise no Act. Bracton saith God the Law 4 Ob. and the Kings Court viz. his Earles and Barons are above the King viz. in Parliament as Mr. Prynne expounds it Where is then the House of Commons Indeed take God the Law Sol. 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 inferiour member is above the head is hard to conceive besides that position destroyes all Mr. Prynnes discourse who attributes 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 quantity but not for quality 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 Cake their Oracle in his Chap. of Parl. f. 1 In Corporations the greater number of voyces make all the Acts of the Corporation valid 6 Ob. therefore so in Parliament By this reason the Kings assent is needlesse Sol. and to no end 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 necessary besides the Corporations are so constituted by the Kings Charters and the greater number of votes shall make their Acts valid The King
instit 110. 4 pars p. 49. that is the sence of the word Parler in the French Tongue The Writ whereby the two Houses are assembled which is called the Writ of Summons of Parliament at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peeres the Iudges and Kings Counsell to consult and treate with the King that is the Parler of great concernments touching 〈◊〉 the King secondly the defence of his Kingdome thirdly the defence of the Church of England It cannot be a Parliament that will not parle with their King but keepe him in prison and not suffer him to come to them and parle and therefore the Law and sense and reason informing every man that is no manner of parliament the King with whom they should parle being so restrained that they will not parle with him the army hath no manner of security by this Ordinance for their indemnification refers to that which is not in being untill the King be at Liberty 7. It is more than probable that their Iudges before the last Circuite had instructions to the effect of this Ordinance The Common souldiers second Apology 6. Grievances of the Army published 15. May last Three grievances of Col. Riches Regiment but they the Iudges making conscience of their Oath layd aside the said instructions and ought and may and it is believed will no more regard this Ordinance than the said instructions What was done in the last circuit the army well knowes touching many of their fellow Souldiers 8. The Hâ—uses in their first proposition to his Majesty for a safe and well-grounded peace sent to Newcastle to desire a pardon from his Majesty for themselves they who desire a pardon cannot granr a pardon comoÌ„n reason dictates this to every man and therefore that the army should accept an indemnity for them who seek it for themselves or should conceive it of any manner of force is a fancy so that no man in the whole army but may apprehend that it is vain and a meer delusion 9. His Majesty by his gracious message of the 12 of May last hath offered an Act of Oblivion and a generall pardon to all his people this done the Law doth indemnifie the Army without all manner of scruple for any thing that hath been done for it is an Act of Parl. when the King two houses concur and bindes all men I here is no safety by the Ordinance there is safety by an Act of Parliament and will not reasonable men preferre that which is safe before that which is unsafe 10. His Majesty by his said Letter agrees to pay the arrears of the army J am sure that it is a publick debt and the chiefest and the first that by the two Houses should be paid and before any dividend or gratuities bestowed among themselves for their blood limbs and lives have put and kept the both Houses at rest in the power they have So by this concurrence of his Majesty for your indemnity and for your arreares the Army have not an Ordinance or the Publick Faith but the Law of the Land to make sure unto them their indemnity for all acts and for their arrears and therewith also bring peace to the Land 11. The Kingdom and people generally desire these things To such an army just and reasonable things must not be denyed the things formerly proposed are most just and reasonable you may have them if you will if you will not you render this Kingdom miserable wherein you will have your share of miseries the head and the body are such an incorporation as cannot be disolved without the destruction of both The additionall Ordinance of both Houses passed the 5. of Iune instant for the fuller indemnity of the Army makes nothing at all to the matter 1. For that it extends not to Felony Homicide Burglary Robbery or any other cappitall crime which is the main businesse insisted upon and most concerneth the Souldiers security 12. The both Houses in the said additional Ordinance say Mr. Pyms Speech against tho Earl of Strafford p. 16. Six considerations printed by the command of the House of Commons that it is expedient that all offences be pardoned and put in oblivion pardon and oblivion cannot be understood to be for a time but for ever and they themselves confess that an Ordinance is not binding but pro tempore which with the most advantagious interpretation can be but a reprive or delay of the execution of the Law and therefore that cannot pardon or put in oblivion by their own shewing But the Law of the Land is and so it hath constantly been practised in all times that no persons of what estate soever 27 H. 8. c. 24. have any power to pardon treason felony or any other offences but the King only who hath the sole and whole power to pardon all such crimes whatsoever And in the same manner an Ordinance is of no authority at all to take away the right of private mens actions by any evidence it can give in truth all the evidence that this Ordinance gives is that it records to posterity nothing but a lawlesse and distempered time For remedy thereof I say again it is a certaine truth this Kingdom without an act of Oblivion and a general pardon and the payment of Souldiers-arrears and a meet regard had to tender consciences will unavoydably be ruined Iune 10. 1647. DAVID IENKINS Prisoner in the Tower of London Sundry Acts of Parliament mentioned and cited in the Armies Indemnities set forth in words at large for the better satisfaction of such as desire rightly to be informed 25. Edw. Chap. 5. A Declaration what offences shall be adjudged Treason WHereas divers opinions haue béen before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in the manner as hereafter followeth That is to say When a man doth compasse or imagine the death of our Lord the King or of our Lady the Quéen or of the eldest Son and Heire or do violate the Kings companion or the Kings eldest Daughter vnmarried or the Wife of the Kings eldest Son and Heire or if a man do leavy War against the Lord our King in his Realm or be adherent to the Kings enemies in his Realm giuing to them ayd and comfort in the Realm or else-where and thereof be probably attainted of open deed by people of their condition And if a man counterfeit the Kings great or priuy Seal or his Mony and any man bring false mony into this Realm counterfeit to the mony of England and the mony called Lusburgh or other like to the said mony of England c. 11. Hen. 7. Chap. 1. None that shall attend upon the King and do him true service shall be attainted or forfeit any thing THE King our
Subject is bound to govern in ayd of him we only say that his power is distinguishable from his person and when he himselfe makes a distinction betwixt them commanding one thing by his legall Writs Courts and Officers and commanding another thing extrajudicially by word of mouth Letters or Ministers we are to obey his power rather than his person 5. We take not from the King all power of pardoning Delinquents we onely say it is not proper to him quarto modo For if the King pardon him which hath murthered my son his pardon shall not cut me off from my appeal and 't is more unreasonable that the Kings pardon should make a whole State which hath suffered remedilesse than any private man So if the King should deny indemnity to those which in the furie of war have done things 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 way And if his will not hold yet this is no good consequence the King is absolute in point of pardons therefore he is absolute in all things else and the parliament 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 governs but thir 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 it 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 do 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 subâ—erfuge 7. We swear that the King is our supreme Governour over all persons and in all causes but we do not swear he is above all Law nor above the safetie of his people which is the end of the Law and indeed Paramount to the Law it selfe If he be above Law or liable to no restraint of our Law then we are no freer than the French or the Turks and if he be above the prime end of Law common safety then wee are not free as the French or Turks For if the totall subversion of the French or Turk were attempted they might by Gods Law imprinted in the book of Nature justifie a self-defence but we must remedilesly perish when the King pleases to command our throats Besides how atchieved the King of England such a Supremacy 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 to then to what purpose serve our Lawes nay to what purpose serve the Lawes of other Countryes for by this generall donation all Nations are condemned to all servitude as well as we If the Law of this Land bee appealed to what Bookes hath Mr. Ienkins read where hath he found out that Lex Regia whereby the people of England have given away from themselves all right in themselves Some of our Bookes tell us that we are more free than the French that the King canot oppresse us in our Personâ— oâ— 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 M. Jenkins 8. We admit that no Acts of Parliament are compleat or formally binding without the Kings assent yet this is still to be denied that therefore without this assent particularly exprest the two Houses can do nothing nor have any virtual power at all no not to examine M. Ienkins nor to do any other thing of like nature though in order to publike justice and safetie I have done and wish M. Ienkins would call in and lick up again 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 Pye-powders court-Baron Hundred court County court and every other Court of Record 5. H. 4. c. 3. 3 H. 6.46 19 H. 6.43 â—5 H. 6.5 or not of Record hath power to examine upon Oath and an examination without Oath is a communication onely examination in Law is upon Oath There is no court without a power of tryall Sir Anthony Maynes â—ase Cook 1. par Reports Lit. 2. lib. Sect. 194. 6. H. 4.1 the House of Commons have no power to try any offence nor ever practised it by Bill Indictment Information Plaint or Originall Writ to reduce it to tryall 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 incipiâ—a â—ine The Writ whereby they are called gives them power Ad faciendum consentiendum â— paâ—s instit fol. â— 9. To what To such things Quae ibidem de communi consilio ordiâ—â—â— contingerint 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 treate 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 Judges and to his Counsell at Law The words in the Writ are To appeare and attend the Parliament Consilium impensuri the one doth conâ—ulere the other sacere conseâ—tire The House of Lords where the King sits in person assisted by His Lords Judges Serjeants Atturney 7 H. 6.28 1 H. 7. â—0* 13 Ed. 3. c. 5. 4 pars inst p. 21. Sollicitor Masters of the Chancery is a court of Record to many purposes set down in the Bookes of Law and the Statutes of the Land and that court is onely in the House of Lords where the King sits A court must either bee by the Kings Patent Statute Law or by the common Law Plowd Com. 319. which is common and constant usage the House of commons hath no Patent to bee a court nor Statute Law to bee a court nor common usage they have no Journall Booke but since Edward
60. 4. p. inst p. 1. It is true the King cannot controule or prevent his other Courts for that they are his ordinary Courts of common Justice to administer common right unto all men according to the fixed Lawes The Houses make no Court without the King they are no Bodie corporate without the King nor Parliament without the King they all make one corporate Bodie one Court called the Parliament whereof the King is the Head and the Court is in the Lords House where the King is present and as a man is no man without a head so the Houses severed from the King as now they are have no power at all and they themselves by levying War against the King and imprisoning of him have made the Statute for not dissolving adjourning or proroguing this Parliament of no effect by the said Acts of their own they sit to no purpose without his assent to their Bills they will not suffer him to consult with them and treat and reason with them whereby He may discerne what Bils are fit to passe and what not which in all Ages the Kings of this Land have enjoyed as their undoubted Rights and therefore they sit to no purpose by their own disobedience and fault For the ordinary Courts at Westminster 27. H. 8. c. â—4 28. H. 8.11 Dier the Judges in all those Courts are Judges by the Kings patent or Writ otherwise they are no Judges the Houses can make no Judges 2. â— 3.11 they are no Judges at all who are made by them the whole and sole power of making Judges belongs to the King the King cannot controul or prevent his own Judges from â—itting and acting but the Houses He may for they are not the Kings Judges but the judges of the â—â— Houses In his other Courts the King commits his power to his Judges by his patent and they are sworne to do common right to all men and the King is sworn not to let them from so doing the King cannot judge in those Courts nor controul but the King is both Judge and Controuler in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bills Many Lawyers have much to answer to God this Kingdom and to posteritie for puzling the people of this Land with such Fancies as the Gentleman who wrote the Answer to my Paper and others have published in these Troubles which have been none of the least causes of the raising and continuing of them And so I have done with the first part of this Answer AD. 2. For the Non sequitur in the second Section of the Gentl. Answer the Antecedent and the Consequent are his own Quem recitas meus est O Fidentine libellus Sed malè dum recitas incipit esse tuus My words are that the King is not virtually in the two Houses at Westminster to enable them to grant pardons for that whole and sole power by the Law belongs to the King My paper hath no such thing 27. H. 8. c. 24. as that the Kings power cannot be derived to others or the virtue of his power For his power and the virtue of his power â— in all patents to his Judges in harâ—ers to Corporations in Commission of all sorts and in the Parliament assembled by force of his Writ of Summons so long as they obey him but when they renounce that power and claim it not from the King and declare to the Kingdom that he is not in condition to govern and imprison him and usurp to themselves all Royal Authoritie as the two Houses now do no reasonable man can affirme that they Act by the power of their Prisoner who hath no power to give them that by force of Armes take all power unto themselves The Gent saith The King grants Commissions dayly of Oyre and Terminer which he cannot frustrate nor elude The King may revoke and discharge the Commission by his Writ as he may remove all Judges and place other men in their room and any Kings death determines all the Judges Patents at Westminster Hal Commission of Oyre and Terminer c And so he might dissolve both Houses in all times 4. â— 4.39 5. â— 4.4 1. Eliâ— Dier 165. 1. Mar. Brooks case 〈◊〉 by his Writ under the Great Seal untill that in this Parliament by his own concession the King of his goodnesse had secluded himselfe which goodnesse hath been full ill requited The Gentl. affirmes That the power the Parliament hath is concurrent from the King and Kingdom which he conceives is proved by the grant of Subsidies to the King by the Parliament 4. pars 〈◊〉 pag. The mistaking of this word Parliament hath been mischievous in these times to this Land and it is affectedly mistaken which makes the sin the greater for the two Houses are not the Parliament as before is declared and at this time so to inculcate it when all men know that of the 120. Peers of this Kingdom who were temporal Peers before the Troubles there are now not above 30. in the Lords House and in the House of Commons about 200. of the principal Gentlemen of the Kingdom left the House and adhered to his Majesty who is imprisoned by them shewes no such candor as is to be desired It is true that no Tallage can be laid upon the people of this Land but by their consent in Parliament as appeareth by the Lawes mentioned in the Margent but you shall finde in M. Seldens learned Book called Mare clausum a number of presidents in Henry the Thirds time for Ship-mony justly condemned this Parliament to the which his Majesty assented and in truth that Ship-money was condemned before by the said two Statutes of 25. E. 1 34. E. 1. de Tallagio non concedendo 25. E. 1. confirmatio chartarum c. 6. 34. H. 1. c. 1. de Tallagio non concedendo Dangelet Englishely and many grievous Burthens were laid upon the people and born untill that memorable Princes time But I am of opinion that the common Law of the Land did alwayes restrain Kings from all Subsidies and Tallages but by consent in Parliament which doth appear by Magna Charta the last chapter where the Prelates Lords and Communalty gave the King the fifteenth part of their moveables In truth it is no manner of consequence because the King cannot take what he pleaseth of the Subjects goods that therefore they have a concurrent power in Parliament there have been many Parliaments and no Subsidies granted parliaments may be without Subsidies but Subsidies cannot be without parliaments of ancienâ— times parliaments rarely granted any unlesse it were in the time of forrâ—igne Warres and in my time Queen Elizab. refused a Subsidie granted in parliament and in the parliament of 1. Iac. none were granted The Gentl. should make a conscience of blinding the people with such untrue colours to to the ruine of the King and people AD. 3. The Gentl.