Land or without any thing should lose or forfeit for doing their duty or service of Allegiance It be therefore ordained enacted and established by the King our Soveraigne Lord by the advice and assent of the Lords spiritual and temporall and the Commons in this present Parliament assembled and by authority of the same that from henceforth no manner of person or persons whatsoever he or they be that attend upoâ— the King and Soveraigne Lord of this Land for the time being in his person and doe him true and faithfull service of allegiance in the same or be in other places by his commandement in his wars within this Land or without that for the said deed and true duty of allegiance he or they be in no wise convict or attaint of high treason nor of other offences for that cause by act of Parliament or otherwise by any processe of Law whereby hee or any of them shall lose or forfeit life lands tenements rents possessions hereditaments goods chattels or any other things but to be for that deed and service utterly discharged of any vexation trouble or losse And if any act or acts or other processe of the Law hereafter thereupon for the same happen to be made contrary to this Ordinance that then that act or acts or other processe of the Law whatsoever they shall be stand and be utterly void Provided alwaies that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said allegiance Cap. 24. In the Statute of 27. H. 8. It is enacted that no person or persons of what estate or degree soever they be of shall have any power or authority to pardon or remit any treason murders man-slaughters or any kinde of Fellonies c. but that the King shall have the sole and whole power and authority thereof united and knit to the Imperiall Crowne as of right it appertaineth c. And in the same it is enacted further that none shall have power of what estate degree or condition soever they be to make Justices of Eyre Justices of Assize Justices of the Peace c. but all such officers and Ministers shall be made by Letters Patents under the Kings great Seale in the name and by the authority of the King and his Heires and Successors Kings of this Realme In the first yeare of Queen Mary and the first Chapter It is enacted by the Queen with the consent of the Lords and Commons That no deed or offence by Act of Parliament made treason shall be taken deemed or adjudged to be high treason but only such as be declared and expressed to be treason by the Act of Parliament made 25. Ed. 3. cap. 2. before mentioned A Declaration of M. David Ienkins now Prisoner in the Tower of London one of His Majesties Iudges in Wales for tryalls of Treasons Murthers Felonies and all other capitall crimes that they ought only to be by Iuries and not otherwise unlesse it be by Act of Parliament THe common Law of this Land is That every freeman is subject to a tryall by bill of Attainder in Parliament wherein His Majesty and both Houses must necessarily concurre for that tryall and attainder is an Act of Parliament to which all men are subject to a Mag. Chart. cap. 29. 2 part instit fol. 28 29.46.48 49 50. composed by Sir Ed. Cooke and published by the Order of the House of Commons in May 1641. No man shall otherwise be destroyed c but by the lawfull judgement of his Peers or by the common Law of the Land Peers to Noblemen are Noblemen Peers to the Commons are Knights Gentlemen c. Judgement of Peers refers to Peers those words The Law of the Land refers to the Commons the Law of the Land is for the tryall of the life of a free Commoner by Indictment Presentment of good and lawfull men where the deed is done or by Writ originall of the common Law all this is declared in Magna Charta c. 29. and by 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance they destroy that excellent Act of Magna Charta and all those other good Lawes Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance which after the Lords better considering the matter that they might be acquitted of that sentence became suters to the King that what they had so done in future time might not be drawn into president because that which they had so done was against the Law b Rot. Par. 1. roule 4. E. 3. Num. 2. part inst page 50. with this 〈◊〉 grees Sir Joâ—n Lees case Rot. Par. 42. E. 3. Num. 22.23 2. inst fol. 50. with this agrees the practice and usage of all times in this Land all the free Commoners of this Kingdome have alwayes been tryed and acquitted or condemned in capitall causes by Jurers of their equalls An Ordinance bindeth not in Law at all c See 4. part inst fol. 23.48.292 2. part inst f. 47 48. and but pro tempore as the two Houses now affirme a mans life cannot be tryed by that which is not binding and to continue for all times for a life lost cannot be restored By an Act of Parliament of the 1. and 2. of Philip and Mary chap. 10. It is enacted that aâ—â— tryalls for Treason hereafter to be had shall be according to the course of the common-law If the crime charged upon any be treason against the two Houses against the Parliament it cannot be for there is no Parliament without the King that is no Treason in Law as appeares by 25. Ed. 3. chap. 2. 11. R. 2. chap. 3. 1 Hen. 4. cha 10. 1. and 2. Philip and Mary chap. 10. 3 part of the institutes Page 23. An Act of Parliament to make any a Judge where he is party is a void act d Dr â—oâ—ams case 8. part of Cooks reports for none can be a Judge and party in the same cause and therefore the House of Peers being a party touching the crime charged upon any man whom they would try by an Ordinance for Treason against both Houses cannot be a Judge By the Petition of Right e Petition of Right 3. Car. Regis if any man deserve death he ought to suffer the same according to the Lawes of the Land established and not otherwise but an Ordinance of the Lords is no established law The Protestation the Vow and Covenant the solemne League and Covenant the Declarations of both Houses had made and published sithence this unnaturall Warre are amongst other things sworne and set downe to be for the maintenance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said Protestation Vow and Covenant League and Covenant and
said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. â—â—t the new count câ—fe it Seale was made when the King was at Gâ—xford in his own kingdome and not in the holy Land Mâ— Prynne in his Book of the two Houses power to impose Taxes restraines Malignants against any Habeas Corpus 20. Ob. c. saith that the Parliament is above Magna Charta and fol. 15. ibid. The Parliament hath power over Magna Charta to repeale the same when there is Cause This Argument supposeth that they have the kings power Sol. which hath appeared formerly they have not But suppose they had Magna Charta containes many morall Lawes which by the Law of the Land a Parliament cannot alter 21 H. 7.2 D. Student 2. Dialogue For example it saith cap 18 Justice shall not be sold delayed noâ— denyed to any man but by this Argument the Parliament may make law to delay deny and to sell Justice which surely is a very ill position to maintaine What they would have doth now by the Propositions sent to Nâ—â—â— castlâ— to his Majesty appeare whereby they would have him divest himselfe and settle in them all his kingly power by Sea and land and of themselves â—o have power without him today upon the people of this land what taxes they think meet to abolish the Common prayer booke to abolish Episcopacie and to introduce a Church Government not yet agreed but such as they shall agree on His Majesâ—y finding 〈◊〉 prevailing pâ—rty in both Houses to 〈…〉 and being chased away with Tumults from London leaves the Houses for these Reasons 〈◊〉 First because to 〈◊〉 the Government for Religion in against the king 〈◊〉 〈◊〉 against their Oathes For every of them hath sworne in this Parliament That His Mâ—jâ—sty is the 〈◊〉 supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly This course is against Magna Charta the 1. chap. and the last Salvae suis Episcopis omnes libertates suae Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third in the first Chapter enacts If any Statute be made to the contrary it shall be holden for none and so it is for Judgements at Law in the 25. of Edward the 1. chap. 1 2. The Great Charter is declared to bee the Common Law of the Land Fourthly they endeavour to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Book of Common-Prayer setled by five Acts of Parliament and compiled by the Reformers and Martyrs and practised in the time of foure Princes Fifthly these Propositions taking away from His Majesty all his power by land and Sea rob him of that which all his Ancestours kings of this Realme have enjoyed That Enjoyment and Usage makes the Law and a Right by the same to His Majesty They are against their owne Protestation made this Parliament viz. to maintaine His Royall person Honour and Estate They are against their Covenant which doth say that they will not diminish His Just Power and Greatnesse For these Reasons His Majesty hath left them and as iâ— beleeved will refuse to agree to the said Propositions as by the Fundamentall Law of the land hee may having a Negative Voyce to any Bills proposed The result of all is upon the whole matter That the king thus leaving of the Houses and his Denyall to passe the said Propositions are so farre from making him a Tyrant or not in a condition to Governe at the present That thereby hee is rendred a Just Magnanimous and pious Prince so that by this it appeares clearly to whom the Miseries of these Times are to be imputed The remedy for all is an Act of Oblivion and a Generall pardon God save the KING DAVID JENKINS now Prisoner in the Tower 28 Aprilis 1647. THE CORDIALL OF JVDGE JENKINS For the good People of LONDON In Reply to a thing called AN Answer to the Poysonous Seditious Paper of Mr David Jenkins By H.P. Barrester of Lincolns-Inne Printed in the Yeare 1647. The Cordial of Judge Jenkings for the good People of London c. After the said Mr H.P. hath made a recitall of the Heads of my Vindication hee deduceth his Answer unto these eight Particulars which follow verbatum 1. It cannot be denyed but the Parliament sits by the Kings Writ â—ay if Statute Law be greater then the Kings Writ it cannot be denyed but the Parliament sits or ought to sit by something greater then the Kings Writ And if it be confessed that the Parliament sits by the Kings Writ but does not Act by the Kings Writ then it must follow that the Parliament is a void vaine Court and sits to no purpose nay it must also follow that the Parliament is of lesse authority and of lesse use then any other inferiour Court forasmuch as it is not in the Kings power to controule other Courts or to prevent them from sitting or Acting 2. This is a grosse non sequitur the Kings power is in himself Ergo it is not derived to nor does reside virtually in the Parliament For the light of the Sun remaines imbodied and unexhausted in the Globe of the Sun at the same time as it is diffused and displayed through all the body of the â—yre and who sees not that the King without emptying himselfe gives commissions daily of Oyer and Terminer to others which yet he himselfe can neither frustrate nor clude but for my part I conceive it is a great errour to inferre that the Parliament has onely the Kings power because it has the Kings power in it for it seemes to me that the Parliament does both sit and act by concurrent power devolved both from the King and Kingdom And this in some things is more obvious and apparent then in others For by what power does the Parliament grant Subsidies to the King if only by the power which the King gives then the King may take Subsidies without any grant from the Parliament and if it be so by a power which the people give to the Parliament Then it will follow the Parliament has a power given both by King and Kingdome 3. The sending Propositions to the King and desiring his concurrence is scarce worth an Answer for Subjects may humbly petition for that which is their strict right and property Nay it may sometimes beseeme a superiour to preferre suite to an inferiour for matters in themselves duâ— God himselfe has not utterly disdained to beseech his own miserable impious unworthy creatures besides t is not our Tenet that the King has no power because he has not all power nor that the King cannot at all promote our happinesse because hee has no just claime to procure our ruine 4. We affirm not that the Kings power is separated from his Person so as the two Spencers affirmed neither doe we frame conclusions out of that separation as the two
two Houses c. It is true the King cannot controle or prevent his other Courts for that they are his ordinary Courts of common Iustice to administer common right unto all men according to the fixed Lawes 14 H. 8.3 36 H. 8. Dier 60. The Houses make no Court without the King they are no body corporate without the King nor Parliament without the King they all make one corporate body one Court called the Parliament 4 Pars Instit pa. 1. whereof the King is the head and the Court is in the Lords House where the King is present and as a man is no man without a head so the Houses severed from the King as now they are have no power at all and they themselves by levying waâ— against the King and imprisoning of him have made the Statute for not dissolving adjourning or proroging this Parliament of no effect by the said Acts of their own they sit to no purpose without his assent to their Bills they will not suffer him to consult with them and treat and reason with them whereby he may discern what Bills are fit to passe and what not which in all Ages the Kings of this Land have enjoyed as their undoubted Rights and therefore they sit to no purpose by their own disobedience and fault For the ordinary Courts at Westminster 27 H. 8. c. 24. 28 H. 8.11 Dier the Iudges in all those Courts are Iudges by the Kings Patent or Writ otherwise they are no Iudge the Houses can make no Iudges they are no Iudges at all who are made by them the whole sole power of making Iudges belongs to the King the King cannot controule or prevent his own Iudges from sitting or acting but the Houses hee may for they are not the Kings Iudges but the Iudges of the two Houses 2 R. 3.11 In his other Courts the King commits his power to his Iudges by his Patent and they are sworn to doe common right to all men and the King is sworn not to let them from so doing the King cannot judge in those Courts nor controule but the King is both Iudge and Controller in the Court of Parliament Quoad Acts for his assent or dissent doth give life or death to all Bills Many Lawyers have much to answer to God this Kingdome and to pâ—sterity for puzling the poore of this Land with such Fancies as the Gentleman who wrote the Answer to my Paper and others have published in these Troubles which hath been none of the least causes of the raysing and continuing of them And so I have with the first part of his Answer AD. 2. For the Non sequitur in the second Section of the Gent. Answer the Antecedent and the Censequent are his own Quem recitas meus est ô Fidentine libellus Sed malè dum recitas incipit esse tuus My words are that the King is not virtually in the two Houses at Westminster to enable them to grant pardons for that whole and sole power by the Law belongs to the King My Paper hath no such thing 27 H. 8. c. 24. as that the Kings power cannot be derived to others or the vertue of his power For his power and the vertue of his power is in all Patents to his Iudges in Charters to Corporations in Commissions of all sorts and in the Parliament assembled by force of his Writ of Summons so long as they obey him but when they renounce that power and claime it not from the King and declare to the Kingdome that he is not in condition to govern and imprison him and usurp to themselves all Royall Authority as the two Houses now doe no reasonable man can affirm that they act by the power of their prisoner who hath no power to give them that by force of Armes take all the power to themselves The Gent. saith the King grants Commissions daily of Oyer and Terminer which he cannot frustrate nor â—lude 4 E. 4.39 5 F. 4.4 1 Eliz Dyer 165. 1 Mar. Brooks case 447. The King may revoke and discharge the Commission by his Writ as he may remove all Iudges and place other men in their roome and any Kings death determines all the Iudges Patents of Westminster Hall Commissions of Oyer and Terminer c. and so he might dissolve both Houses in all times by his Writ under the Great Seale untill that by this Parliament by his own concession the King of his goodnesse hath secluded himself which goodnesse hath been full ill requited The Gent affirms That the power the Parliament hath is concurrent from the King and Kingdome which he conceives is proved by the Grant of Subsidies to the King by the Parliament The mistaking of this word Parliament hath been mischievous in these times to this Land 4 Pars Instit pag 1. and it is affectedly mistaken which makes the sinne the greater for the two Houses are not the Parliament as before is declared and at this time so to inculcate it when all men know that of the 120 Peeres of the Kingdome who were Temporal Peeres before the Troubles there are not now above 30 in the Lords House and in the House of Commons about 200 of the principall Gent. of the Kingdome left the House and adhered to his Majesty who is imprisoned by them shewes no such candor as is to be desired It is true that no Tallage can be layd upon the people of this Land 25. E. 1. confirmatio chartarum cap. 6. 34. E. 1. cap. 1. de Tallagio non concedendo but by their consent in Parliament as appeareth by the Lawes mentioned in the Margent but you shall finde in Mr Sâ—ldâ—ns learned Book called Mare Clausum a number of Presidents in Henry the Thirds time for Ship-money justly condemned this Parliament to the which his Majesty assented and in truth that Ship-money was condemned before by the said two Statutes of 25. E. 1. 34. E. 1. de Tallagio non concedendo Danegelt Englitery and many grievous burthens were laid upon the people and born untill that memorable Princes time But I am of opinion that the Common Law of the Land did alwayes restraine Kings form all Subsidies and Tallages but by consent in Parliament which doth appear by Magna Charta the last chapter where the Prelates Lords and Communalty gave the King the fifteenth part of their moveables In truth it is no manner of consequence because the King cannot take what he pleaseth of the subâ—ects goods that therefore they have a concurrent power in Parliament there have been many Parliaments and no Subsidies granted Parliaments may be without Subsidies but Subsidies cannot be without Parliaments of ancient time Parliaments rarely granted any unlesse it were in the time of forraine Warres and in my time Qâ— Elizabeth refused a Subsidy granted in Parliament and in the Parliament of â— Jac. none were granted The Gent. should make a conscience of blinding the people with such untrue colours to
What credit is to be given to persons who make nothing of Oathes and contradict themselves How dâ—e the Covenant and the Oath of Supremacy agree How doth their Protestation and the Covenant agree How doe their Declarations and Oathes agree The Lord be mercifull to this Land for these Oaths It is a sad thing to consider that so many gentlemen who professe the lawes and so many worthy men in both Houses should be so transported as they are knowing that the Lawes of the Land from time to time and in all times are contrary to all their actions and that yet they should amuse themselves and the people with the word of Parliament without the King and with the Covenant whereas they know they are no Parliament without His Majestie and that English men throughout the Kingdome should sweare a Covenant to preserve the reformed Religion of Scotland in Doctrine Worship Discipline and Government which they no more know than the Doctrine Worship Discipline and Government of Prester Iohn in Ethiopia if they consider it they cannot but discerne that this is a high desperate and impious madnesse Be wise in time without the King and the Lawes you will never have one houre of safety for your Persons Wives Children or Estates Be good to your selves and to your Posterities apply your selves to be capable of an Act of Oblivion and of a generall Pardon and to be able and willing to pay the Souldiery and to allow a reasonable liberty for mâ—â—â— consciences and God will blesse your endeavours and the people to whom you are now very hatefull will have you in better estimation The third Quarie is thus answered You resemble the Army to Iacke Cade and his Complians and you cite the Act of Parliament of 31. Hen. 6. cap. 1. and that it may appeare who acts the Part of Iacke Cade you and that Party in the two Houses or the Army I thinke it necessary to set downe the said Act in words at large as followeth First Whereas the most abominable Tyrant horrible odious and arrant false Traytor Iohn Cade calling and naming himself sometime Mortimer sometime Cap. of Kent which name fame acts and feats are to be removed out of the speech and mind of every faithfull Christian man perpetually falsely and traiterously purposing and imagining the perpetuall destruction of the Kings said Person and finall subversion of this Realme taking upon him Royall power and gathering to him the Kings people in great numbers by false subtle imagined Language and seditiously making a stirring Rebellion and Insurrection under colour of justice for reformation of the Lawes of the said King robbing stealing and spoiling great part of his faithfull people Our said Soveraigne Lord the King considering the premises with many other which were more odious to remember by advise and consent of the Lords aforesaid and at the request of the said Commons and by authority aforesaid hath ordained and established that the said Iohn Cade shall be reputed had named and declared a false Traytour to our Soveraigne Lord the King and that all his tyranny acts feats and false opinions shall be voyded abated annulled destroyed put out of remembrance for ever and that all enditements and all things depending thereof had and made under the power of tyranny shall be like wise void annulled anated repealed and holden for none and that the bloud of 〈…〉 them be thereof defiled nor corrupted but by the authority of the said Parliament cleerely declared for even and that all enditements in times comming in like case under power of tyranny rebellion and stirring had shall be of no Record nor effect but void in Law and all the Petitions delivered to the said King in his last Parliament holden at VVestminster Noveb 6. in the 29. of his Raigne against his mind by him not agreed shall be taken and put in oblivion out of remembrance undone voyded annulled and destroyed for ever as a thing purposed against God and conscience and against His Royall Estate and preeminence and also dishonourable and unreasonable Now wee are to examine who hath trod in the stepâ— of Jack Cade you and the present prevailing party of the two Houses tooke upon them and doe take all the Royall Power in all things so did Jack Cade as appeares by the said Act the Army doe not so They who imprison the King purpose to destroy His Person our imprisoned Kings alwayes * Edward â— Henry 6. Richard 2. fared so Jack Cade did likewise so purpose but the Army doe not so The said party in the two Houses made a stirring under colour of Justice for Reformation of the Lawes so did Jack Cade The Army doe not so but desire that the Lawes should be observed Jack Cade levied Warre against the King the Army preserves Him Jack Cade dyed a Declared Traytor to his Soveraigne Lord the King this Army lives to have the glorious true Honour of being restorers of their King Simon Sudbury Archbishop of Canterbury was murtheted by Jack Cade iâ— William Laud Archbishop of Canterbury was likewise murthered by that party of the two Houses 25 Ed. 3.4 28 Ed. 3.3 Petition of Right 3 Car. for that an Ordinance by Law cannot take away any mans life his life was taken away by an Ordinance of the two Houses the Army had no hand in it Many misled by Jack Cade perceiving his Trayterous purposes fell from him and as that was lawfull just and Honourable so it is for this Army to adhere to their naturall King and to indeavour to settle the Kingdome againe in the just Lawes and Liberties thereof London did then right worthily adhere to the King and the Lawes and not to Iack Cade and his specious pretences and it is hoped they will now so doe By this it appeares that the Gentlemans Discourse touching Iack Cade fastens altogether on his party and cleareth the Army To the IV. which is solved thus The Arreares of the Army howbeit it is the least thing they looke after yet being not paid them it is by the Law of the Land a sufficient cause to leave and desert that party in the Houses A person who serves in any kinde and is not paid his wages the desertion of that service is warrantable by the Lawes of the Land Pitz. N. B. 25. 9 Ed. â— 20 38 H. 6.27 23 Eliz. Dier 369. You say the Houses will reforme all things when the Army doth disband who will beleeve it Will any beleeve that the setling of the Presbytery will doe it Will any beleeve that his Majesty will passe the Propositions sent to Him to Newcastle Will any man beleeve that this Kingdome will ever bee quiet without His Majesty and the ancient and just Lawes Can the Members of the Army conceive any of them to be safe in any thing without a Pardon from His Majesty Have they not seene some of their Fellows hanged before their eyes for actions done as Souldiers Shall the Kingdome
his Parliament shall declare otherwise they are the very words of the Law 3. Pars instit Pag. 22. 2. pars instit Pag. 47 48. 4. pars instit P. 23.48.29 King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason then there is declared as appeares by the Lord Cooke in the places cited in the Margin A Law-booke published by order of the House of Commons this Parliament 3. Pars instit cap. Treason Pa. 9 10 12. Mr S. Iohn the Sollicitor in his Speech upon the araignment of the Earle of Straford Printed by order of the House of Commons p. 7. 13. as appeares in the last leafe of the second part of the Institutes published likewise by their Order The Resolutions of all the Judges of England upon the said Statute of the 25. Ed. 3. as appeares in the said third part of the Institutes Chap. High-Treason have been that to imprison the King untill he agree to certaine demands is High-Treason to seize his Ports Forts Magazine for Warre are High-Treason to alter the Lawes is High-Treason The word King in the Statute of 25. Ed. 3. cap. 2. must be understood of the Kings naturall person for that person can only dye have a wife have a sonne or be imprisoned The Privilege of Parliament protects no man from treason or felony 4. Pars instit c. Parl. p. 25. 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. 11. M. 7. cap. 1. Hen. 7. cap. 1. doth by expresse words free all persons who adhere to the King The Army by an Act of Indemnity free themselves from all those dangers Stamford l. 2. fol. 99. 18 Ed. 3. Statutes at large 144. 20 Ed. 3. c. 1. 11. Rie 2. c. 10. 4 Pars instit Pag. 23.48.29 which an Ordinance can no more doe then repeale 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 the 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 any 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 I. Their Judges are sworne to doe justice according to the Law of the Land 3. Pars instit Pag. 22. 2 Pars instit 47 48. 1. Pars instit 193. Princes case â— â—â—perte 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 beleeve they will perjure themselves so palpably and visibly in the eye of the world II. All trials for Treasons Felonies Robberies Magna Charta cap. 29. 25. Ed. 3. cap 4. 28. Ed. 3. cap. 3. 37. Ed. 3. cap. 8. 42. Ed. 3 cap. 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 whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience Declaration of the Army presented at Warden and Printed by the appointment of the Officers subscribed and thereupon doe rightly apprehend their danger Now no man can thinke that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countries and thereby utterly destroy their owne Rights and Properties III. 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 dyes 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 sence of the people and doubtlesse the Jurors will not thinke otherwise IV. This Ordinance is restrained to the authority 4. Pars instit pag. 1. 3. Pars instit pag. 22. 1. Pars instit pag. 1. 28. H. 8. sâ—l 11. Dier 38. H. 8. sol 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 then 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 Parliament and none other And the Judges may ought and I beleeve will according to their Oathes proceed as not bound at all by this Ordinance For it is restrained to the Authority of Parliament â—â—vice or benefit thereof whereas the two Houses are not the â—â—â—liament but only parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people V. This Ordinance is against their Ordinances which expresly prohibit 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 VI. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest here signifies in that Language to consult treat 1. Pars iastit 109. 1 Pars instit 110. 4 Pars p. 49. that is the sense 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 Judges and Kings Councell to consult and treate with the King that is the Parler of great concernments touching 1. 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 keep him in prison and not suffer him to come to them and parle and therefore the Law and sence 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
Queenes death of the Kings eldest son to coyne his money to counterfeit his Great-Seale to levie Warre against him to adhere to such as shall so do are declared by that Act to be high Treason This Statute cannot refer to the King in his politique capacity but to his naturall which is inseperable from the politique for a body politique can have neither Wife nor Child 21. Ed. 4.14 not levie Warre nor do any Act but by the operation of the naturall body A Corporation or body politique hath no soule or life but is a fiction of the Law and the Statute meant not fictitious persons but the body naturall conjoyned with the publique which are inseperable The clause in that Act that no man should sue for grace or pardon for any offence condemned R. 2.11 〈◊〉 cap. 13. 4. pars instit fol. 42. or forfeiture given by that Act was repealed by a subsequent Act in 〈◊〉 Râ—â— holden unreasonable without example and against the Law and custom of the Parliament This condemnes the Proposition for disabling the King to Pardon 4. pars instit fol. 42. The Act of 11. R. 2. so much urged by the other side was an Act to the which the King consented and so a perfect Act yet Note the Army then about the Town Note that that Law is against private persons and by the 3. cap. thereof the Treasons there declared are declared to be new Treasons made by that Act and not to be drawne to example it was abrogated 21. R. 2. and revived by an usurper 1. H. 4. to please the people and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. Râ— cap. 5. The Regality of the Crown of England is immediatly subject to God and to none other Plaine words H. 4. shewing where the supreame power is The Commission of Array is in force and no other Commission Ret. Parim â— H. 4. numb 24. an Act not printed this Act was repealed by 4. and 5. P. M. cap. 2. this repealed by the Act of 1. Iacobi and so it is of force at this day for the repealing Statute is repealed 4. pars institu fol. 51. 125. published sithence this Parliament by the desire of the house of Commons their Order is printed in the last leafe of the commentaries upon Magna Charta Sir Edward Cooke A booke alowed by Sir Nat. Brent called the reason of the War fol. 65. by their party is holden for the Oracle of the Law who wrote the said fourth part in a calme and quiet time and I may say when there was no need to defend the authority of the Commission of Array For that objection that that Commission leaves power to the Commissioners to tax men secundum facultates and so make all mens estates Arbitrary the Answer is that in levying of publick ayds upon mens goods estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoid discretion in the assessements for so it ever was and ever will be By this appeares that the Votes of the two houses against the commission of Array were against the Law The death of the King dissolves the Parliament H. 5. if Kings should refer to the politique capacity it would continue after his death 4. pars Inst 46. which proves that the King cannot be said to be there when he is absent as now he is 2. H. 5. 4 pars instit 46. there is no interregnum in the Kingdome the dissolution of the Parliament by his death shewes that the beginning and end thereof refers to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5. Chap. 6. to the King only it belongs to make Leagues with Forraigne Princesâ— this shewes where the supreame power is 8. H. 6. numb 57. Râ—tt Parl-Cookes 4. pâ—ns instit 25 Nâ— peiviledge of Parliament is grantable for treason H. 6. Felony or Breach of the Peace if not to any one member not to two not to ten not to the Major part 19. H. 6.62 The Law is the inheritance of the King and his people by which they are ruled King and people And the people are by the law bound to ayde the King and the King hath an inheritance to hould Parliaments and in the ayds granted by the Commonâ—alty If the major part of a Parliament commit treason they must not be Judges of it for no man or body can be Judge in his owne cause and aswell as ten or any number may commit treason the greater number may aswell The King by his letters pattents may constitute a County palatine and grant Regall rights 32. H. 6 13. Plowd 334. this shewes where the supreame power is 17. Ed. 4. rot parl numb 39. Ed 4. No priviledge of Parliament is grantable for Treason Fellony or Breach of the peace if not for one not for two or more or a Major part The same persons must not be Judge and party A corporate body can committ no treason Calvins Case 7 pars fol. 11 12 nor can treason be committed against a corporate body 21. E. 4 13. ond 14. but the persons of the men who make that body may committ treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can be committed by or against such a body that body hath no soul no life and subsists only by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the statute of 25. E. 3. must be intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby his politique is there also and not at Westminster 19. Ed. 4.46 for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forreigne Prince 22. Ed. 4. Fitz juvisdiction last placite without the Kings consent the league holds and is not broken and therefore the representative body is inferior to his Majesties The King may erect a Court of Common-pleas in what part of the kingdome be pleaseth by his letters patents can the two houses do the like 1. Ed. 5. fol. 2. It cannot be said that the King doth wrong Ed. 5. 4 Ed. 4.25 5 Ed. 4.29 declared by all the Judges and Serjeants at law then there The reason is nothing can be done in this Common wealth by the Kings grant or any other act of his as to the subjects persons goods lands or liberties but must be according to established lawes which the Judges are sworn to observe and deliver betwene the King and his people impartially to rich and poor high and low and therefore the Justices and the Ministers of Justice are to be questioned and punished if