the Parliament time by all the Members of the House of Commons and is required by the Law to be taken in all Parliaments otherwise they have no power nor colour to meddle with the publick Affaires This Oath being taken in Parliament that the King is the only and Supream Governour in al causes then it followes in Parliament causes over all persons then over the two Houses Let them keep this Oath and we shall bee sure of Peace in the Land and good Lawyers ought to desire peace both for the publicke good and their private and not dishonour that Noble profession as many doe in this miserable time The Gent. sayes Wee do not swear that the King is above all Law nor above the safety of his people neither do we so swear but his Majesty and we will sweare to the contrary and have sworne and have made good and will by Gods grace make good our Oath to the world that the KING is not above the Lawe nor above the safety of his people the Law and the safety of his people are his safety his Honour and his Strength AD 8. The Gent. concludes That Acts of Parliament are not formaly binding nor compleat without the Kings assent yet the Houses have a virtual power with out the Kings particular assent to doe things in order to publique justice and Safety viz. In setting up the Excise in raising and maintaining of Armes in Taxing the people at pleasure with Fifth and Twentieth part Fifty Subsidies Sequestrations Loans Compositions imprisoning the King abolishing the Common prayer Book felling the Churchs Lands c. all these are in order to the publick Justice and Safety Mr. H. P. you are of my profession I beseech you for the good of your Country for the Honour of our Science perswade your selfe and others as much as in you lies to beleeve and follow the monition and councell of that memorable reverend and profoundly Learned in the Lawes and Customes of the Land the Lord COOKI 3 par Inst pag 36. who writes as becomes a great and a learned Iudge of the Law a person much magnified by the two Houses in these words Peruse over all Books Records and Histories and you shall finde a Principle in Law a Rule in Reason and a Triall in Experience that Treason doth ever produce farall and finall destruction to the offender and never attains to the desired end two incidents inseparably thereunâ—o therefore let al men abandon it as the poysonouâ— bait of the divil follow the Precept in Holy Scripture SERVE GOD HONOUR THE KING AND HAVE NO COMPANY WITH THE SEDITIOVS Conclusion I say againe that without an Act of Oblivion a gratious Generall pardon from his Majesty the arrears of the Souldiers paid a favourable regard had to tender Consciences theâ—e will he neither Truth nor Peace in this Land nor any mansâ—cure of any thing he hath By me David Jenkins Prisoner in the Tower A DISCOURSE TOVCHING The Inconveniencies of a Long-continued PARLIAMENT A Perpetuall Parliament is repugnant to the Act made this Parliament for a Triennial Parliament for how can every three yeares a Parliament beginne if this bee perpetuall which may bee so if the two Houses please 2. An adjournment of the Parliâ—ment makes no Session 4 pars institut fol. 27. Howbeit before the adjournment the KING gives His Royall assent to some Bills Cookeibid 3. There is no Session till a Prorogation or dissolution of the Parliament 4. This Parliament as appeâ—res by the Act for not dissolving thereof set downe in the printed Statutes of this Parliament Plowd com 33.8 Bro. relation 35. Bro Parl. 86. Dâ—â— 1. Mariae 8 fol. 138. cannot be prorogâ—ed or dissolved but by Act of par liamènt There hath been as yet no Act of Parliament in that behalfe And therefore all the Acts of this Parliament are Acts of one Session 5. All Acts of one Session relate to the first day of the Parliament and all the Acts of such a Parliament are acts of one day so the Act for the Trienniall and the Act for this Perpetuall are two Acts of one day by the Law 6. 4 Ed. 3. cap. 36. Ed. 3. cap. 10. A Parliament is to be holâ—en once every yeare and more often if need shall bee those Acts are confirmed by the Act for the Trienniall Parliament How doth a perpetuall Parliament agree with a Parliament once every yeare or with the intention of those Lawes How doth a Parliament every three-years agree with a Parliament for ever which may be if the two Houses please 7. The result is this atâ—ent day in Law this Parliament two acts have passed for howbeit the one was in 16 Carol. and the other in 17 Carol. yet both in Law are Acts of one day the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parliament The other this Parliament shall sit for ever if they please The one will have a Parliament with an end the other a Parliament without an end When an Act of Parliament is against common Right or Reason 1 Pars. Doct. Bon. hams case â—o 11 8. 8. E. 3 3.30.33 E. cassaâ—it 32. 27. H. G. Anuity 41. 1. Eliz. Dâ—er 113. or repugnant or impossible to be performed the Common Law shall controle it and adjudg this Act to be void they are the words of the Law An Act of Parliament that a Man shall be judg in his own Cause is a void Act. Hobbart Fol. 120. Begin with Common Right It is against Common Right that indebted men should not pay their debts That if any Member of the House of Commons doe any Subject wrong by disseising him of his land or dispossessing him of his goods or blasting of his fame or doing violence to his person that such persons during their lives should not be questioned by a Priviledg of Parliament and that extended also to many other beside themselves common right doth abhor these Enormities which a perpetuall Parliament doth beget besides the utter destruction of al mens actions real personall or mixt 21. Iac c. 16. who have to doe with Parliament-men by the statute of Limitation which confines Suites to certaine yeares For Common Reason Parliaments were ordained for remedies to redresse publique greivances it is against reason they should make publique and insufferable Grievances The Law of the Land allowes no protection for any men imployed in the service of the Kingdome but for a yeare to be free from Suites and in many Suites none at all howbeit he be in such service 39. H. 6.39 but a Parliament perpetuall may prove a protection not for a yeare but for ever which is against all manner of reason For impossibility The death of his Majesty whose life God prolong dissolves 〈◊〉 necessarily for the Writ of Summons iâ— Carolus Rex in hoc individuo and Carolus Rex is in this particular habiturus colloquium tractatum cum prelat is
Lex terrae the Law of the Land there mentioned this Law bindeâ— all men and the House of Commons for they say they are of the Kings Councel in all points but only against the disturbers of the service of the Parliament and therefore the Imprison ment of severall persons who are not their Members for no disturbance to their Members is utterly against the Law of the Land and the Franchise of the Freemen of this Realme Cui non licet quod minus non licet quod Majus he who may not do what is lesse may not do what is greater they cannot commit a man for murder or Fellony much lesse for Treason No Court can fine and imprison 8. pars Cook 120 27. H. 6 8. but a Court of record the House of Commons is no Court of Record the House of the Lords where the King is in person his Nobles and his Iudges and Councell at Law the Masters of the Chancery assisting is a Court of Record and that is the Court of Parâ—ament where the Colloquium tractatus is The House of Commons may present Grievances grant or not grant Aides consent or not consent to new Lawes but for fining or imprisoning any but as aforesaid is but of a late date and no antient usage They have no journall Book but sithence Edw. 21. E. 4. fol 46. 6. time 6. Hen. 8 cap. 15. doth not prove the House of Commons to be a Court of Record it mentions only to be entred on Records in the Booke of the Clerke of the Parliament if any members depart into the Countrey Commons in Parliament ne sont Iudges There is no Journal but sithence Edw. 6. time and that is a Remembrance or memoriall as 12. H â—4 23 The whole Parliament is one corporate Body consilting of the Head and three Estates The Court is onely there where the Consilium tractaâ—us is where the consult and â—reaty is with the King which is in then House of Lords only The House of Commons claime not to examine upon Oath any Man 's no Court can be without a power to give an Oath Courts Baron 14. H. 8.3.36 H. 8. Dier 60.4 parâ— inst cap. 1 Court of Pipowders County Court may and doe give Oath no Court can be without a power to try no triall can be without Oath and therefore the house of Commons not claiming power to give an Oath can bring no matter to trial and consequently can be no Court. The behaviour of the Commons at a Conference with the Lords 〈◊〉 the Commons are alwaies uncovered and standing when the Lords fit with their hats on which shewes they are not Colleagues in judgment for fellow-judges owe no such reverence to their Companions When was ever Fine imposed by the House of Commâ—â—s â—â—â—â—ted in the 11. H. 4. c. 11. Exchequer The ejecting of a Member who hath sitten is against the Law for they cannot remove a man out of the House unduly returned much lesse a man returned duely By these Lawes it appeares 2. H. 4. c. d. 1. H. 5. c. 1. 8. H. 6. c. 7 23. H. 6. c. 15. that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is 200. l. one to the King another to the party that is duly elected Imprisonment for â—â—year without Ball or Mainprise and that person who is unduly returned shall serve at his own charge and have no benefit at the end of the Parliament by the Writ Desolutione feodorum Militum â—ivium burgensium Parliament And the triall of the â—alsity of the return is to be before the Justices of the Assizes in the proper County or by action of Debt in any Court of Record 3 Ed. 4.20 5 Ed. 4.41 This condemnes the Committee for undue Elections which hath beene practised but of late times for besides these Lawes it is against a Maxime in the Common-Law an Averment is not receivable against the returne of the Sheriffe for his Returne is upon Oath which Oath is to be credited in that Suit wherein the Returne is made The said Statures condemne and make those Members no Members which were not resiant in the County and Boroughs for which they were elected at the time of the teste of the Writ of the summons of the Parliament and any abusive practice of late times to the contrary is against the Law and ought not to be allowed Assault upon Parliamenâ— men If a Parliament-man 5 H. 4. c. 6.11 H. 6. c. 11. or his Meniall Servant be aslaulted beaten or wounded in the Parliament time proclamation shal be made where the deed is done that the Offender shall render himselfe to the Kings Bench within a quarter of a year after proclamation made the offeâ—ce there to be tryed for Default of appearance the Offender is declared attainted of the Misdeed and it is accorded that thereafter it be done likewise in the like case Serving of processe upon a Lord of the Parliament punished in the Lords House Bogo de Clare 18. E. 3.4 pars inst fol. 24 Io Thorn sbyes case Clerk of the Parl. punished ibid. 10. E. 3 Serving of processe upon Thornsby inquired of in the Chancery and there the Offenders were convicted The premises prove that breaches of priviledge of Parliament may be punished else were then in Parliament Vpon all this Discourse it is easie to decerne what fruits may be expected from this Parliament continuing as long as the two Houses please and that there is no safty for this common-wealth but by the observations of their antient Franchises customes and Lawes Conclusion I Say againe that without and Act of Oblivion a gratious generall pardon from his Majesty the arrears of the Souldiers paid a favourable regard had to tender consciences there will be neither Truth nor Peace in this Land nor any man secure of any thing he hath AN APOLOGY FOR THE ARMY Touching the eight Quaeres c. LONDON Printed in the Yeare 1648. AN APOLOGY FOR THE ARMY THese Treasonable and insolent Quaeries make the Army the houses Subjects and not the Kings Bracton fol. 118. Stamford fol. 2. None by the Lawes of this Land can in this Kingdome have an Army but his Majesty It appeares the Army doth now evidently perceive that they were mis-led by the specious pretences of Salus populi the maintenance of the Kings Honour and of the maintenance of the Lawes of the Land and Liberties of the Subject to take up Armes against their naturall Liege Lord and Soveraigne the King the people is the Body the King is the Head Mag. Chart. c. 1. uit All the Act concerning the King Church and Church-men 25. Ed. 1. cap. 1. Was the Body safe when the Head was distressed and imprisoned For Lawes and Liberties have not the prevailing party in the two Houses destroyed above an hundred Acts of Parliament and in effect Magna Chartaâ— Charta de Forresta
the matters therein mentioned For whose satisfaction in a businesse wherein the lives and fortunes of so many men were concerned and the peace of the Kingdom involved I conceived I was bound in duty and conscience faithfully and truly to set down what the Law of the Land therein is which accordingly I have with all sincerity expressed in this following discourse The danger of the Armie by the Law of the Land is apparent to all men 25 â—d 3. c. 21. 2 R. 2. c. 3. â— H. 4. c. 10. 1 2. Th. Mary c. 10. It is high Treason by the Law of the Land to leavy warre against the King to compasse or imagine his death or the death of his Queene or of his eldest Sonne to counterfeit his Money or his great Seale They are the very words of the Law Other Treasons then are specified in that Act are declared to be no Treasons untill the King and his Parliament shall declare otherwise 3 Pars inst p. 22. 2 pars instit pag. 47 48. 4 pars instiâ— p. 23.48.29 3 pars instit cap. Treason p. 9 10 12. they are the very words of the Law King and Commons King and Lords Commons and Lords cannot declare any other thing to be Treason than there is declared as appeares by the Lord Cook in the places cited in the Margin A Law book published by order of the House of ComoÌ„ns this Parliament as appears in the last leafe of the 2. part of the Institutes published likewise by their Order The Resolutions of all the Iudges of England upon the said Statute of the 25 Edward 3. 〈◊〉 5. Iohn the Sollicitor in his speech upon the Araignment of the Flarle of Strafford Printed by order of the House of Commons .7 13. as appeares in the said third part of the Institutes Chap. High-Treason have been that to imprison the King untill hee agree to certaine demands is High-Treason to seize his Ports Forts Magazine for Warre are High Treason to alter the Lawes is High Treason The word King in the Statute of 25 Edw. 3. c. p. 2. must be understood of the Kings naturall person for that person can only die have a Wife have a Son or be imprisoned The Priviledge of Parliament protects no man from treason or felony 4 pars insti c. Parl. p. 25â— howbeit he be a Member much lesse can they protect others Those who cannot protect themselves have no colour to make Ordinances to protect others who are no Members The Statute of 11 Hen. 7. c. 1. doth by expresse words free all persons who adhere to the King 11 H. 7. c. 1. The Army by an Act of Indemnity free themselyes from all those dangers Stamfo d. l. 2. fol. 99. 18 Ed. 3. Statutes at larg 144. 20 Ed. 3. c. 1. 11 Râ—â— 2. c. 10. 4 pars instit pag. 23.48.29 which an Ordinance can no more do than repealé all the Lawes of the Land the whole and sole power by Law to pardon all Treasons Felonies c. being solely and wholly in the King as is cleared by the Statute of 27 H. 8. c. 24. and the Law of the Land in all times Having shewed the danger of the Army by the Law of the Land next consider thâ— Ordinance of the Lords and Commons published the 22 of May last for their Indemnity by the ensuing discourse it doth appeare they have no Indemnity at all thereby The Indemnity proposed by the Ordinance is for an Act done by the authority of the Parl or for the service or benefit thereof and that the Judges and all other Ministers of Justice shall allow thereof This Ordinance cannot secure the Army for these reasons 1. Their Judges are sworne to doe justice according to the Law of the Land 3 Pars inst p. 21. 2 pars inst 47.48 1 pars inst 19â— Princes case 8 reports and therefore the Judges must be forsworne men if they obey it because an Ordinance of both Houses is no Law of the Land and no man can believe they will perjure themselves so palpably and visibly in the eye of the World 2. All tryals for treasons felonies robberies Magna Charta cap. 19. 25 Ed. 3. c. 4. 28 H. 3. c. 3. 37 Ed. 3. c. 42 Ed. 3. c. 3. and such like capitall offences are by the Law of the Land to be by indictment of a Jury appointed out of the Neighbourhood where the offence was done there is no common Jury-man but understands what the Law is in these cases as well as the best Lawyers and the Law makes the Jury Judges of the fact Doclaration of the Army presented at Walden and printed by the appointment of the Officers subscribed whereby the souldier is left to their mercy whom he hath offended as some of them have lately had wofull experience and thereupon doe rightly apprehend their danger Now no man can think that the Jurors will perjure themselves to acquit the souldiers for robbing and plundring of the Countryes and thereby utterly destroy their own Rights and Properties 3. If the Judges conceive as they may that the taking of other mens horses or goods is not by the Authority of Parliament or for the service and benefit thereof the souldier dies for it they may say to steale or rob any man of his goods is not for the Parliaments service but against it which was alwayes the sense of the people and doubtlesse the Jurors will not think otherwise 4. This Ordinance is restrained to the authority 4 Pars inst p. 1. 3 pars inst p. 22. 1 pars inst p. 1. 28 H. 8. f. iâ— Dier 38 H. 8. fol. 60. 12 H. 7. 20. 1 pars instit 159. Princes case 8 Reports service or benefit of the Parliament the Lords and Commons make no more a Parliament by the Law of the Land than a body without a head makes a man for a Parliament is a body composed of a King their head the Lords and Commons the Members All three together make one body and that is the Parl. and no other and the Iudges may ought and I believe wil according to their oathes proceed as not bound at all by this Ordinance For it is restrained to the authority of Parliam service or benefit thereof whereas the two Houses are not the Paâ—l but onely parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people 5. This Ordinance is against their Ordiinance which expressly prohibits plundring 28 Aug. 1642. Col. of Ord. first part 565.592.605 severall Ordinances and so there is one Ordinance against another whereby their Judges have an out let to proceed on the one or the other and thereby the Army hath no manner of security 6. The word Parliament is a French word howbeit such Assemblies were before the Norman Conquest heere and signifies in that language to consult and treat 1 Pars inst 109. 1 pars
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
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.
which are the Common lawes of the land Doth Excise the Fifth and Twentieth parts Meal-money and many more Burdens which this Land never heard of before maintaine the Liberties of the people You and that party of the two Houses made the Army by severall Declarations before Engagement believe that you would preserve the Kings Honour and Greatnessâ— the Lawes and Liberties of the people The Army and the whole Kingdome now facta vident see your Actions and have no reason longer to believe your Oathes Vowes and Declarations and since that party in the two Houses refuse to performe any thing according to their said Oathes Vowes And Declarations the Army and the Kingdome may and ought both by your own principles and the Lawes of the Land to pursue the ends for which they were raised And so your first Quare is resolved whereby it is manifest that specious pretences to carry on ambitious and pernitious Designes fix not upon the Army but upon you and the prevailing party in both Houses 3 par Inst f. 12.39 El. 1 Iac. ibi 3 3. E. 6. c. 3 11. 〈◊〉 7. c. 1. The solution of the second Quaere The Army to their eternall honour have freed the King from imprisonment at Holmby It was High Treason to imprison his Majesty To free his Majesty from that imprisonment was to deliver him out of Trayterous hands which was the Armies bounden duty by the Law of God and the Land That party refused to suffer his Majesty to have two of his Chaplaines for the exercise of his Conscience who had not taken the Covenant free accesse was not permitted doth the Army use his Majesty so all men see that accesse to him is free and such Chaplaines as his Majesty desired are now attending on his Grace Who are the guilty persons the Army who in this action of delivering the King act according to Law or the said parâ—y who acted Treasonably against the Law Who doth observe the Protestation better they who imprison their King or they who free him from prison That this Army was raised by the Parliament is utterly false The Army was raised by the two Houses upon the specious pretences of the Kings Honour common safety and the preservation of Lawes and Liberties which how made good hath beene shewed before and all the people of the Kingdome do finde by wofull experience The two Houses are no more a Parliament than a Body without a Head a Man 14 H. 8 3.36 H. 7 Dier 60 4 pars Instit p. 1 3 12 14.16 R. 2 c. 1â— 5 Eliz. c. 2 17. Carol. The Act for the continuance of this Parliament The two Houses can make no Court without the King they are no Body Corporate without the King they all Head and Members make one Corporate Body And this is so clear a Truth that in this Parliament by the Act of 17. Caroli it is declared That the Parliament shall not be dissolved or prorogued but by Act of Parliament but the two Houses may respectively adjourne themselves Two Houses and a Parliament are severall things cuncta fidem vera faciunt all circumstances agree to prove this truth Before the Norman conquest and since to this day 4 par Instit p. 18.4 par Instit p. 4 9 5 Eliz c. i 2 the King is holden Principium caput Finis that is the beginning Head and chiefe end of the Parliament as appeareth by the Treatise of the manner of holding of Parliaments made before the Norman Conquest by the Writ of Summons of Parliament whereby the Treaty and Parler in Parliament is to be had with the King only by the Common Law by the Statute-Law by the Oath of Supremacy taken at this and every Parliament it doth manifestly appeare that without the KING there can be no coulour of a Parliament How many Votes have they revoked in one Session yea and Bills Was there ever the like done Nay is not the constant course of Parliaments violated and made nothing thereby They are guarded by armed men divide the publike Mony among themselves and that party endeavours to bring in a Forraigne Power to invade this Land againe If they be no Parliament as clearly they are none without his Majesty they have no privâ—ledges but do exercise an Arbitrary Tyrannicall and Treasonable power over the people By the Law of the Land 7 E. 4 20 8 E. 4 3 9 E. 4.27 4 H 7 18 27 H 8 23. when Treason or Felony is committed it is lawfull for every Subject who suspects the Offendor to apprehend him and to secure him so that Justice may be done upon him according to the Law You say the disobedience of the Army is a sad publick president like to conjure up a spirit of universall disobedience I pray object not that conjuring up to the Army whereof you and the prevailing party in the Houses are guilty who conjured up the spirit of universall disobedience against his Majesty your and our onely Supreme Governour but you and that party in the two Houses and even then when the House of Commons were taking and did take the said Oath of Supremacy For the Covenant you mention it is an Oath against the Lawes of the Land against the petition of Right devised in Scotland wherein the first Article is to maintaine the Reformed Religion in the Church of Scotland And certainly there is no Subject of the English Nation doth know what the Scottish Religion is 2 par Coll. of Ord. pag. 803. 3 par Inst fol. 165. Petition of Right 3. Car. â— pars instit 71â— I beleeve the Army tooke not the Covenant No man by the Law can give an Oath in a new case without an Act of Parliament and therefore the imposers thereof are very blameable and guilty of the highest Crime The Writer of these Quaeres seems to professe the Laws Let him declare what Act of Parliament doth justifie the tendring giving or taking of the said Oath he knoweth there is none he knoweth that all the parts of it are destructive of the Laws and Government to maintaine which the Law of Nature and the Law of the Land hath obliged them The Oath of the Covenant makes the Houses supream Governours in causes Ecclesiastical the Oath of Supremacy makes the King so and yet both taken by the same persons at the same time What credit is to be given to persons who make nothing of Oathes and contradict themselves How do the Covenant the Oath of Supremacy agree How do their protestation and the Covenant agree How do their Declarations and Oaths agree The Lord be mercifull to this Land for these Oaths It is a sad thing to consider that so many Gentlemen who professe the Lawes and so many worthy men in both Houses should be so transported as they are knowing that the Lawes of the Land from time to time and in all times are contrary to all their actions and that they yet should amuse
and in laying Burdens upon the people and in breaking all the Oathes Vowes and promises they ever made As the Army hath power 2 3 E 6. c. 2. 11 H 7 c. 1. Calvins case 7. pars Cook fol. 11 so now adhering to the King all the Lawes of God Nature and Man are for them their Armies are just and blessed and the King is bound in justice to reward his Deliverers with honour profit and meere Liberty of conscience To the VI. Quaere All the sixth Quaere containes calumnies cast upon the Army the new Elections are against all the Lawes mentioned in the Margin and are against the Ejection of the old Members and by this it may be judged 11 M 4 c. 1 1-h 5 0 1.8 h 6 c. 7 23 h. 6 c. 15. what a House of Commons we have By the said Lawes it appeares that if any undue returne be made the person returned is to continue a Member the Sheriffes punishment is two hundred pounds one to the King and the other to the party that is duly elected Imprisonment for a yeare without Bail or mainprize and that person who is unduly returned shall serve at his own charge and have no benefit at the end of the Parliament by the Writ De solutione Militum Civium Burgensium Parliament And the trial of the falsity of the returne is to be before the Justices of Assizes in the proper county or by action of Debt in any Court of Record This condemnes the Committee for undue Elections 3. Ed. 4.20.5 Ed. 4.42 which hath been practised but of late times for besides these Lawes it is a-Maxime of the Common Law art Averment is not receivable against the returne of the Sheriffe for his Returne is upon Oath which Oath is to be credited in that Suit wherein the Returne is made The said Statutes condemne Elections of such men who were not resâ—ant and dwelt in the County or Boroughs for which they were returned and any abusive practise of late times to the contrary is against the Law and ought not to be allowed To the VII Quaere The Quaerist saith that the Votes of the Independents in the Houses were arbitrary exorbitant and irregular and that they disposed and singred more of the common Treasure than others That whole Quare I believe is false and slandeâ—ous and the Author ought to make it good or else to undergo the Law of Talnio 37. Ed. 5. c. 17. which is to suffer such punishment failing of his poof as the accused should in case of proofe made To the VIII Quaere This Quaere is all minatory and threatning and the contrary of every part is true by the deliverance of the King and Kingdom from the bondage of that party in the 2 Houses by the Army their renown will be eversasting they secure themselves they content and please the Kingdome City and Countrey as appeares by their confluence to see his Majesty and the Army and their acclamations for his Majesties safety and restitution all which doth evidence to every one of the army how acceptable the intentions of the Army are to the people of this Land who have been so long inthralled Sir Thomas Fairfaâ— let your Worthinesse remember your extraction and your Ladies by the grace and favour of the Prince to be in the ranke of Nobility Remember what honour and glory the present Age and all posterity will justly give to the Restorer of the King to his Throne of the Lawes to their strength and of the afflicted people of this Land to peace Let the Colonels and Commanders under You and likewise your Souldiery rest assured that they shall not only share in the renowne of this Action but also shall have such remuneration as their haughty Courage and so high a virtue doth deserve This his Majesty can and will do the Houses neither will nor can and God blesse you all and prosper you I Conclude all as I have alwayes done without an Act of Oblivion a generall pardon the arrears of the Souldiery paid and a regard to Liberty of conscience this Kingdom will certainly be ruined Iudge Ienkins PLEA delivered into the Earl of Manchester and the Speaker of the House of COMMONS Sitting in the CHANCERY at WESTMINSTER Which was read by their Command in open Court the 14th of Febr. 1647. And there avowed By DAVID IENKINS Prisoner in NEVVGATE LONDON Printed In the Yeare 1648. Judge Jenkin's PLEA Delivered in to the Earle of Manchester and the Speaker of the House of COMMONS sitting in the CHANCERY at WESTMINSTER I Have been required to appear in the Chancery the Twelfth of this instant February before Commissioners appointed by the two Houses for the keeping of their Great Seal and managing the Affaires of the Chancery I cannot nor ought nor will submit to this power I am a Judge sworne to the Lawes The Law is First that this Court is Câ—ram Râ—gâ— in Cancellaria 4 pars instfol 79 â— E 4 fol 5 â— E 4 f 15 Secondly the Chancellor or Keeper of the great Seale is by delivery of the Great Seale to him by the KING and by taking of an Oath The Oath followeth in these words 1. 42 pars inâ—â— 10 R 2 rot Parlanum â— Well and truly to serve our Sovcraigne Lord the King and his people in that Office 2. To do right to all manner of people poor and rich after the Laws and usages of this Realm 3. Truly to Counsell the King and his Coun cell to conceate and keep 4. Not to suffer the hurt or disheriting of the King or that the rights of the Crown be decreased by any means â—â—farre as he may let it 5. If he may not let it be shall maâ— it clearly and expresly to be knowne tâ— the King with his advice and counâ— sell 6. And that be shall do and purchase the Kings profit in all that he reasonably may as God him help and the contents of Gods book The said Commissioners among others have Imprisoned their King Declar. 17 Ian. 1647 have declared to the Kingdome that they will make no Addresses or Applications to him nor receive any from him Have counterfeited a new great Seal Articulisup chartrs c. 5 and after destroyed the true old great Seale which belonged by the Law to the Kings custody These Commissioners have had no Seale delivered to them by his Majesty have taken no such Oath or full ill kept it and for these evident reasons grounded upon the sundamental Lawes of this Land these Commissioner have neither Court Scale or Commission and therefore I ought not against â—he Lawes against my knowledg and against my conscience submit to their power To affirâ—e that they maintaine the Kings power and authority in relation to His Lawes as they often do and restraine only his person is strange They must be remembred that the House of commons this Parliament gave in charge to Mr. Solicitor upon the prosecution of the
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
will not come to them and yet the King desires to come but they wil not suffer him but keepe him prisoner at Holmby so well doe their Actions and Oathes agree 5. They sweare now King Charies is their only and supreame Governor but with a resolution at the time of the Oath taking and before and after that he shall not be only or supreame Governour or only and supreame but not any Governour at all For there is no point of Government but for some yeares past they have taken to themselves and used his name only to abuse and deceive the people 6. That this virtuall power is a meere fiction their Propositions sent to Oxford to Neweastle to be signed by the King doe prove it so What needs this adoe if they have the virtuall Power with them at Wistminster 7. To affirme that the Kings power which is the vertue they talke of is separable from his person is High Treason by the Law of the Land which is so declared by that learned man of the Law Sir Edward Cocke so much magnified by this present Parliament who in the 7 part of his Reports in Calving case fol. 11 saith thus In the reigne of Edward the second the Supencers the Father and Sonne to cover the Treason hat hed in their hearts invented this damnable and damned opinion that homage and Oath of Legeance was more by reason of the I Kings Crowne that is of his potitick capacity theu by reason of ohe person of the King upon which â—â—inion they inferred three execraâ—le and detestable consequences h. If the King to not demeaue himselfe by reason in the right of his Crowne his Lieges are bound â—y Oath to remove the King 2 seeing that the King â—ould not be retormed by â—nte of Law that ought so be dene per aspertes that is by orce 3. That his Lieges be beund to governe in â—yde of him and in default of him all which wâ—re condemned by two Parliaments one in the raigue of Edw. 2. called exilium Hugonis le Spencer and the other in anno 1. Edw 3 cap. 2. And that the naturall body and politick maks one indivisible body that these two bodies incorporate in one person make one body and not divers is resolved as the Law of Eng. 4 Ed 3 Ploydon Com. fol. 213 by Sir Co bet Catlin L. Chiefe Justice of Eng. Sir Iâ—mes Dâ—er L. Chief Justice of the Common pleas the L. Sanders L. Chief Baron of the Excheâ—ner by the rest of the Judges viz. Justice Restall Justice Browne Justice Corbet Justice weston Baron Frevylâ— Carus and Powâ—rel Sergeant to the Queene Gerrard Auturny Generall Carell Atturney of the Dutchy Pâ—owdon the learnedest man of that age in the knowledge of the Law and Customes of the Realme 8. The Law in all ages without any controversie is and hath been that no Act of Parliament bindes the Subjects of the Land without the assent of the King â— Hâ—â— 3 Mogn Charta So in every Age till this dâ—y and in every Kings time as appeares by the Acts in Print 1 part of the Iustit Sect. 234. 〈◊〉 fine where many of the Law-Bookes are â—iied 7 Hen. 7.14.12 of Hen. 7.20 either for Person Lauds Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the virtuall power be in the Houses there needs no assent of the Kings The stiles of the Acts printed from 9 Hen. 3. to 1 Hen. 7. were either The King ordaines at his Parliament c. or the King ordaineth by the advâ—ee of his Prelates and Barâ—â—rs and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath fithence continued thus It is oâ—dained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law bookes call the King the Fountaine of Justice and the life of the Law 9. 2 Han. 4 Cap 22 4 pars instit 42. Mr. â—â—in in his Treatise of the great Seal fol. 17.27 Hen. 8 Chap. 24. Mercy as well as Justice belongs by the Law of the Land onely to the King This is confessed by Mr. Pryn and it is so without any question The King can onely pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27. Hen. 8. c. 24. 10. Queene Elizabeth summoned her first Parliament to bee held the 23. of Jan. in the first yeare of her Majesties Raigne The Lords and commons assembled by force of the same Writ the 21 day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25 of the same Month of January Resolved by all the Judges of England that the Parliament began not the day of the returne of the Writ 3 of Eliz. Dier 2â—3 viz. the 23. of January when the Lords and Commons appeared but the 25 of the said Moneth when the Queene came in person which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sence They have the King now a prisoner at Holmby with guards upon him and yet they governe by the virtuall power of their prisoner These are some few of the causes and reasons which moved me to deliver that paper to Mr. Corbet which I am ready to justifie with my life and should hold it a great honour to dye for the honourable and holy Lawes of the Land that which will save this Land from destruction is an Act of Oblivion and his Majesties gracious generall pardon the Souldiers their Arrears and euery man his own and truth and Peace established in the Land and a favourable regard had to the satisfaction of tender Consciences April 29. 1547. David Ienkins THE ARMIES INDEMNITY WITH ADDITION Together with a DECLARATION SHEWING How every Subject of ENGLAND ought to be tried for Treasons Felonies and all other Capital Crimes as is set down in the Lawes of the LAND By DAVID IENKINS now Prisoner in the Tower of London Printed in the Yeare 1648. The Armies Imdemnity c. UPon the publishing of the Ordinance of the 22 of May last for the Indemnity of the Army certaine Gentlemen well affected to the peace of the Kingdome and safety of the Army desired mee to set down in writing whether by the Law of the Land the said Ordinance did secure them from danger as to
same cause and therefore the House of Peeres 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 Iudge By the Petition of Right e Petition of Right 3. C.R. if any man deserve death he ought to suffer the same according to the Laws of the Land established and not otherwise but an Ordinance of the Lords is no established Law The protestation the Vow and Covenant the solemn League and Covenant the Declarations of both houses had made and published sithence this unnaturall Warre 3 part inst fol. 89. are amongst other things sworn and set downe to be for maintainance of the Lawes the people of this land ought to enjoy the benefit of their Birth-right the Law of the Land and the making good of the said protestation Vow and Covenant League and Covenant and Declarations otherwise truth must be said and will be said that there is brought in a new arbitrary and tyrannicall government If the Lords have taken one mans life by an Ordinance they are not bound to take any more and the case differs in case any appeale be made from a tryall by Ordinance to a tryall at common Law which was not done by that man whose life was taken away by an Ordinance The Lords ought to remember that His Majesty and His progenitors have made them a house of peers they are trusted to counsell him in peace f Nevels case 8 pare Cooks reports and defend him in warre his Majesty in Parliament is to consult and treate with the Peers and with his Councell at Law Judges his Sergeants Atturney and Solicitor and Masters of the Chancery the Lords and that counsell by the respective Writ of Summons to Parliament are to give Counsell g 4 pars instit fol. 4.9 27 Edw. 3. c. 1.15 3 part instit fol. 225. the House of Commons by their Writ to performe and consen◠In the House of Lords the Court of Parliament onely is for they onely examine upon Oath h 1 Hen. 7. fol. 10. with them the King in person sits and by them their erroneous judgements * 14. H. 3. c. 5 upon a Petition to his Majesty for obtaining of a Writ of Errour by the advice of the Judges are reversed or affirmed c. The Lords are to remember that their eminency and grandeur is preserved by the Lawes if they leave all to will and dishonour their King and make nothing of the Lawes they will make nothing of themselves in the end And therefore it is well worth your observation what was said by M. Iohn Pym a Member of the House of Commons in his speech against the Earle of Strafford in the beginning of the Parliament which speech is published by the expresse order of the House of Commons the words are these The Law is that which puts a difference betwixt good and evill betwixt just and unjust if you take away the Law all things will fall into a confusion every man will become a Law unto himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envie will become a Law Covetousnesse and Ambition will become Lawes 〈◊〉 1 pal book deel pag. 140. 163. and what dictates what decisions such Lawes will produce may easily be discerned i. c. They that love this Common-wealth as things now stand will use all means to procure an Act of Oblivion a generall pardon from His Majesty the Souldiers their Arreares and tender consciences a just and reasonable satisfaction else we must all perish first or last May 17 1647 God preserve His Majesty and the Lawes wherein their Lordships and the whole Kingdom are concerned David Jenkins prisoner in the Tower of London THE CORDIALL OF Iudge Ienkins For the good People of LONDON In reply to a Thing called An Answer to the poysonous seditious Paper of Mr. DAVID IENKINS by H. P. Barrister of Lincolns-Inne Printed in the Yeare 1648. The Cordiall of Judge JENKINS for the good People of LONDON AFter the said Mr. H.P. hath made a recitall of the heads of my Vindication he deduced his Answer unto these eight particulars which follow verbatim 1. It cannot be denyed but the Parliament sits by the Kings Writ nay if Statute Law bee greater than the Kings Writ it cannot be denyed but the Parlia fits or ought to sit by something greater than the Kings Writ and if it be confessed that the Parl. sits by the kings writ but do not act by the Kings writ then it must follow that the Parlia is a void vaine Court and sits to no purpose nay it must also follow that the Parl. is of less authority and of less use than any other inferiour Court forasmuch as it is not in the Kings power to controule other Courts or prevent them from sitting or acting 2. This is a gross nonsequitur the Kings power is in himself Ergo it is not derived to nor does reside vertually in the Parliament For the light of the Sun remains imbodied and unexhausted in the Glob of the Sun at the same time as it is diffused and displayed through al the body of the aire and who sees not that the King without emptying himselfe gives Commissions daily of Oyre and Terminer to others which yet himself can neither frustrate nor elude but for my part I conceive it is a great error to infer that the Parliament hath only the Kings power because it hath 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 Kingdome and in this some things are more obvious and apparent than in others For by what power does the Parliament grant Subsidies to the King if onely by the power which the King gives then the K. 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 wil follow the Parliament hath a power given both by King and Kingdom 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 beseem a Superior to prefer suit to an inferior for matters in themselves due God himself hath not utterly disdained to beseech his owne miserable impious unworthy creatures besides 't is not our Tenet that the King hath no power because hee hath not all power nor that the King cannot at all promote our happinesse because he hath no just claime to procure our ruine 4. We affirm not that the Kings power is separated from his person so as the two Spencers affirmed neither doe we frame conclusions out of that separation as the two Spencers did either that the King may be removed for misdemeanours or performed per asperte or that the
6. time was there ever Fine by the House of Commons estreated into the Exchequer For murder or Felony they can imprison no man much lesse for Treason that House which cannot do the lesse cannot doe the greater It is ordained 25. â— 3. c. 4. 3. Car. Petition of Right that no man shall be imprisoned or put out of his Franchise by the King or his Councell but upon indictment or presentment of his good and lawfull Neighbours where the deed is done or by originall Writ at the Common Law and so is Lex terrae the Law of the Land mentioned in Magna Charta cap. 29. expounded and the said Magna Charta and Charta de Forresta are declared by the Statute of 25. E. 1. c. 1. to bee the Common Law of the Land All Judges and Commissioners are to proceed Secundum legem consuetudinem Regni Angliae as appeares by all proceedings in all Courts and by all Commissions and therefore the house of Commons by themselves proceeding not by Indictment Presentment or Originall Writ have no power to imprison men or put them out of Franchise This no way trenches upon the Parliament 4 pars instit p. 1. 3 pars instit p. 23. for it is in Law no Parliament without King and both Houses I have onely in my Paper delivered to Mr. Corbet 12. H. 7.20 Princes case 8 Pars Cook 1 pars instit p. 159. 14 H. 8.3 Dier 3â— H. 8.60 applyed my selfe to that Committee that had not power to examine mee but I never thought said or wrote that the Parliament had no power to examine me The Law and custome of this Land is that a Parliament hath power over my life liberty lands and goods and over every other Subject but the House of Commons of it selfe hath no such power For the Lord Cookes relation 1 pars inst 19. b. that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeths time and since Few facts of late time never questioned make no power nor Court à facto ad jus is no good argument for the words of the Statute of 6. Hâ—n 8. c. 16. that a licence to depart from the House of Commons for any Member thereof 4 P. Inst c. Parl. is to be entred of Record into the Booke of the Cleark of the Parliament appointed Hobbarts reports fol. 152. or to be appointed for that House doth not conclude that the House of Commons is a Court of Records For first that Law of 6. H. 8. c. 26. handles no such question as that whether the House of commons be a court it is a maxime in all Lawes Hobbarts reports fol. 154. Leâ— aliâ—d tractâ—us nil probat the word Record there mentioned is onely a memoriall of what was done and entred in a book A plaint removed out of the County-Court to the Court of the common-Pleas hath these words in the Writ of remove Recordari facias loquelam Fitz. Nat. Br. 70. Fitz. Nat. Br. 13. 12 H. 4.33 34 H. 6.49 c. and yet the county court is no court of Record and so for ancient Demesne in a Writ of false judgement the words are Recordari facias loquelam c. and yet the court of ancient Demesne is no court of Record and so of a court Baron the Law and custome of England must bee preserved or England will bee destroyed and have neither Law nor custome Let any man shew mee that the court of Lords or the House of commons in any age hath made any man a Delinquent Rege dissentiente the KING contradicting it under his Great Seale Miâ—hell and others of late were condemned by the prosecution of the House of commons in King Iames his time did King Iames ever contradict it And so in ancient times where the House of Peeres condemned the Lord Latimer in 50 E. 3. 4 Pars Inst Tit. Parlia p. 23. The Kings pardon freed him which shewes clearly that the Kings expresse or implied assent must of necessitie be had to make a Delinquent The execution of the sentence is in the Kings name The Gentl. saith That the Parliament sits or ought to sit by something greater than the Kings Writ c. No Parliament did ever sit without the Kings Writ 4. Pars inst p. 4. 6. nor could ever Parliament begin without the Kings presence in person or by a Guardian of England by patent under the Kings Great Seal the King being in remotis or by Commission under the Great Seal to certain Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majestie hath been pressed and hath passed two Acts of parliament one for a Triennial parliament and another for a perpetual if the Houses please to satisfie their desires how these two Acts agree one with another 4 H. 3. c. 14. 36. H. 3. c. 10. 21. Iac. the Act of Limitation of Actions c. 22. and with the Statute in Edâ— the Thirds time where parliaments are ordained to be holden every year and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their menial servants from all debts during their lives if they please to continue it so long and how destructive to mens actions against them by reason of the Statute of Limitations which confines their actions to certain yeares and many other inconveniences of greater importance is easie to understand How can any man affirme that the two Houses of Parliament do act now by the Kings Writ which relates to counsel and treatie with the King 4. p. inst p. 14. Vow any Covenant p. 11. concerning the King the defence of his Kingdom and of the Church of England these are three points which it tends to as appeares by the Writ They keep their King prisoner at Holmby and will not suffer him to consult and treat with them They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent and to the same effect have devised the Oath which they call the Negative Oath Is this to defend the Kings Kingdom or their kingdom When by their solemne League and Covenant they extirpate Bishops Deanes and Chapters root branch Is this to defend the Church of England 3. pars Cook Dean and Chapter of Norwich that Church must necessarily be meant that was the Church of England when the said Writ bore test they were not summoned to defend a Church that was not in being to destroy and defend the Church are very contrary things the Church is not defended when they take away and sell the Lands of the Church The Gentleman saith The King cannot controul other Courts of Justice or prevent them from sitting or acting and therefore not the two Houses c. 14 H. 8.3 36. H. â— Dier
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