Roys ' avisera or nâ— veulâ— it was against Magna Charta Articuli Cleri and many other Acts of Parliament And might have farther given these reasons if it had so pleased him for the same First that this Bill destroyes the Writ whereby they are made two Houses of Parliament 14 Hen. 7. fol. 22. Evesque est signior de grand honneâ—r the King in the Writ being â—um praelaris colloquium habtre Secondly they have been in all Parliaments since we had any and voted but in such wherein they themselves were concerned And there have been Bishops here sithence we were Christians and the Fundamentall Law of the Kingdome approves of them If any of them were conceived offensive they were left to Justice and his Majesty would put in inoffensive men in their places but sithence his Majesty hath passed the Bill for taking away their Vores in Parliament it is a Law that bindes us so farre Upon the whole matter the Law hath notably determined that Billa agreed by both Houses pretended to be for the publick good are to be judged by the King for in all Kings Reignes Bils have been preferred by both Houses which alwaies are pretended to be for the publique good and many times are not and were rejected with Roy's auisera or Roy ne veult This Parliament began the 3 of Novemb. 1640. before that time in all the kings reign no armed power did force any of the people to doe any thing against the Law what was done was by his Judges Officers Refers and Ministers from that time untill the 10. os Ia. 1641. when the King went from London to avoyd the danger of frequent tumults being a year and 3 months Privie Counsellors and all his Justices Ministers were lest to the Justice of the Law there wanted not time to punish punishable men The Sphere of the House of Commons is to represent the grievances of the Countrey to grant aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating of Lawes The Orb of the House of Lords to reforme erroneous judgements given in the Kings Bench to redresse the delayes of Courts of Justice to receive all Petitions to advise his Majesty with their Councell to have their Votes in making or abrogating of Lawes and to propose for the common good what they conceive meet Lex non cogit ad impossibilia Subjects are not to expect from Kings impossible things so many Judges Councellours Sheriffes Justices of the Peace Commissioners Ministers of State that the King should over-looke them all cannot be it is impossible The King is vertually in his ordinary Courts of Justice so long as they continue his Courts their charge is to administer the Lawes in being and not to delay deferre oâ— sell Justice for any Commandment of the King We have Lawes enough Instrumenta boni saeculi sunt bonâ— viri good Ministers as Judges and Officers are many times wanting the houses propose new Lawes or abrogation of the old both induce novelty the Law for the reasons aforesaid makes the King the onely Judge who is assisted therein by a great number of grave learned and prudent men as aforesaid For the considerations aforesaid the Kings Party adheared to him the â—aw of the Lnnd is their Birth-â—ight their Guide no offence is committed where that is not violated they found the Commission of Aâ—â—ray warrauted by the Law they found the King in this Parliament to have quitted the Shâ—-money Knighthood-money seven Courts of Justice consented to a Triennall Parliament setled the Forrest hounds tooke away the Cearke of the Market of the houshold trusted the House with the Navy passed an Act not to dâ—â—olve this Parliament without the Houses assent no people in the world so free if they could have been content with Lawes Oathes and reaâ—â—â— and nothing more could or can be devised to secure us neither hath been in any time Notwithstanding all this we found the King driven from London by frequent tumults that two thirds an dt more of the Lords had disserted tha House for the same cause and the greater part of the House of Commons left that House also for the same reason new men chosen in their places against Law by the pretended Warrant of a connterfet Seale and in the Kings name against his consent leavying Warre against him and seizing his Ports Forts Magazines and Revenue and converting them to his destruction and the subversion of the Law and Land laying Taxes on the people never heard of before in this Land devised new Oathes to oppose Forces raised by the King nor to adhere to him but to them in this Warre which they call the 〈◊〉 the Oath and the V. W. and Covenant By severall wayes never used in this kingdome they have raised Monies to foment this Warre and especially to inrich some among them namely first Exâ—is secondly Contributions thirdly Sequestrations fourthly Fift-parts fiftly Twentieth-parts sixtly 〈◊〉 money seventhly Sale of Plundered gpods eightly Loanes ninthly Benedolentes tenthly 〈◊〉 upon their fast-dayes eleventhly new Impoâ—tions upon Merchandâ—res twelfely Gâ—ards maintained upon the charge of private men thirteenthly Fifty Subâ—â—dies at â—â—e time fourteenthly Compossâ—â—ons with such as they call Delinquents fifteentlaly Sale of Bishppâ— Lands c. From the Kings Party meanes of subsistance are taken 〈◊〉 R 3. cap. 3 Bract. li. 3. c. 8. Stanford 192. Sir Ger. Flâ—â—twoods Case S. pars Cook 7. H. 〈◊〉 â—ast leafe before any Indictment their Lands seized their goods taken the Law allowes a Traytor or Fellon attained Necessaria sibi familiae suae invictu vestitu where iâ— the Covenant Where is the Petition of Right Where is the liberty of the Subject First we have ayded the King in this Warre contrary to the Negative Oath and other Votes Our Warrant is the twenty fifth of Edward the third the second Chapter and the said resolutions of all the Judges Secondly 〈◊〉 Insâ—it a 25. a Instit 696 The Law so at the Edition of that booke Hutton and Crook we have maintained the Commission of Array by the Kings Command contrary to their Votes We are warranted by the Statute of the fifth of Henry the fourth and the judgement of Sir Edward Cooke the â—â—cle of the Law as they call him Thirdly we maintained Archâ— Bishoâ—â— and Bishops whom they would suppresse Our warrant is Magna-Charta and many Statutes more Fourthly we have maintained the Booke of Common mayâ—r they suppresse it Our warrant is five acts of Parliament in Edward the fixt and Queene Elizabeths time 5 Pelchae 35 Elizabeth inter placita Coronae in Banâ—â— Regis New booke of Entries fol. 252. Penry for publishing two scandalous Libels against the Church Government was indicted arraigned attainted and executed at Tyburne Fiftly we maintained the Militiâ—â— of the Kingdome to belong to the King they the contrary Our warrant is the Statute of the seventh of Edward the first and many Statutes â—â—thence
constantly in this Parliament that the King to the onely supreme Governour in all causes ever all persons at this present time For what of verball or personall commands of the King which is objected we affirme few things to be subject thereto by the Law But his Majesties Command under his Great Seale which in this warre hath been used by the Kings Command for his Commission to â—savie and array men that is no personall command which the Law in some cases disallowes but that is such a command so made as all men hold their Lands by who hold by Patents all Corporations have their Charters which hold by Charters and all Judgesa and Officers their places and callings It is Objected 〈…〉 the King cannot suppresse his Courts of Justice and that this warre tended to their suppression The answer is Sol. 7 pars The â—a le of Westmerlands Ca e. 1 Eliz. Dier 165. 7 pâ—rs Cooke the King cannot nor ought to suppresse Justice or his Courts of Justice nor ever did but Courts of Justice by abuser or non user cease to be Courts of Justice when Judges are made and proceedings in those Courts holden by others then Judges made by the King and against his command under the great Seale The case of discontinuance of Processe and his Majesty is not obeyed but the Votes of the Houses and his Judges breaking that condition in Law of trust and loyalty implyed in their Patents are no longer his Judges they obey and exercise their places by vertue of Writs and Processes under a counterfet Seale The King onely can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Justices of the Peace c. The Kings Patent makes Judges 28 H. 8. Dâ—â—r 11. The chiefe Justice of the Kings Bench is made by the Kings Writ onely of all the Judges The Great Seale is the key of the Kingdome Artiâ—uli super chartas cap. 5. 2 pars instit 552. and meet it is that the King should have the key of his Kingdome about him which confutes their saying that the King got the Seale away surreptitiously The King Brittâ—n sol 23. and he only may remove his Courts from Westminster into some other place at Yorke the Tearmes were kept for seven yeares in Edward the first 's time but for the Court of Common Pleas the placâ— must be certaine for the Kings Bench and Chancery the King by the Law may command them to attend his person alwaies if it seeme so meet unto him but the removing of the Common Pleas must be to a place certaine and so notified to the people All the Bookes of Law in all times agree that the King may grant conusance of all Pleas at his pleasure within any County or Precinct to be holden there onely and remove the Courts from Westminster to some other place for the Common Pleas 6 H. 7.9 6 Eliz Dier 226. the place must be certaine and so notified to the people and adjourne the Tearmes as he sees cause All which the two houses have violated Some seeming objections of Master Prinn's scattered in divers books answered and the truth thereby more fully cleered THE first of Henry the fourth 1 Ob. revived the Statute of the eleventh of Richard the second and repeales the one and twentieth of Richard the second whereby certaine persons were declared Traytors to the King and kingdome being of the Kings Party by 11 Rich. 2. True but note the eleventh of Richard the second Sol. a Parliament beset with 40000. men and the King assents to it so an Act and besides the first of Henry the fourth declares that the Treasons mentioned in the Act of the eleventh of Richard the second being but against a few private men shall not be drawne into example and that no Treason should be but such as the twenty fifth of Edward the third declares 9 Ed. 4. fol. â—0 All these are Acts passed by the King and the three Estates nor to be drawne into example in a tumultuous time by a besieged Parliament with an Army and Henry the fourth being an Usurper makes that Act of the first of Henry the fourth to secure himselfe Also what is this to the Votes of the two Houses onely at this time The Court of Parliament is above the King 2. Ob. for it may avoyd his Charters Commissions c. granted against the Law And the Law is above the King By the same reason you may say that the Courts of Chancery Sol. or any of the Courts of Law at Westminster are above the King for they make of no effect the Kings Charters which are passed against the Law and the King is subject to Law and sworne to maintaine it Againe it is no Parliament without the King and the King is the head thereof he is principium capus finis of a Parliament as Modus tenendi Parliament hath it and two houses onely want principiwn caput finis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say the King is above himselfe The Parliament can enlarge the Kings Prerogative 3. Ob. therefore it is above him If the King assent Sol. otherwise not and then it is an Act of Parliament and otherwise no Act. Bracton saith God the Law 4 Ob. and the Kings Court viz. his Earles and Barons are above the King viz. in Parliament as Mr. Prynne expounds it Where is then the House of Commons Indeed take God the Law Sol. and Earles and Barons together it is true but to affirme that the Earles and Barons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferiour member is above the head is hard to conceive besides that position destroyes all Mr. Prynnes discourse who attributes much to the House of Commons The King is but one of the three Estates of Parliament 5 Ob. and two are greater then one therefore above The Legs Armes Sol. and Trunke of the body are greater then the Head and yet not above nor with life without it the argument holds for quantity but not for quality and in truth the King is none of the three Estates but above them all the three Estates are the Lords Spirituall the Lords Temporall and the Commons Cake their Oracle in his Chap. of Parl. f. 1 In Corporations the greater number of voyces make all the Acts of the Corporation valid 6 Ob. therefore so in Parliament By this reason the Kings assent is needlesse Sol. and to no end and all the Acts of Parliament formerly mentioned and Law-bookes have quite mistaken the matter which with unanimous voyce requires the Kings assent as necessary besides the Corporations are so constituted by the Kings Charters and the greater number of votes shall make their Acts valid The King
a Corporation by the common-Common-Law 14 H. 8. f. 3. as the King Lords and Commons are a Corporation in Parliament and therefore they are no body without the King The death of the King dischargeth all mainprise to appeare in any Court or to keepe the peace 34 Ed 3.48 1 Ed. 4.2 The death of the King discontinues all Pleas by the Common-law 2 H. 4.8 1 H. 7.10 1 Ed. 5 1. which agreeth not with the virtuall power insisted upon now Writs are discontinued by the death of the King Ed 6. 2 Ed. 6. c. 7. Patents or Judges Commission for Justices of the Peace Sheriffs Escheators determined by his death where is the virtuall power All authority and jurisdiction spirituall and temporall is derived from the King 1 Ed. 6. c. 2. therefore none from the Housess His Majesties Subjects â— 3 Ed. 6. c. 2. 11 H. 7. c. 1. Calvins Case sâ— part Cooke 1 Pars instit 69. according to their bounden duties ought to serve the King in his warres of this side or beyond the Seas beyond the seas is to be understood for wages This proves the power of warres and preparation for warre to be in the King It is most necessary both for common policy and duty of the Subject 5.6 Ed. c. 11. to restraine all manner of shamefull standers against their King which when they be heard cannot but be odible to his true and loving subjects upon whom dependeth the whole unity and universall weale of the Realme This condemnes their continuing of the weekely Pamphlets who have beene so foule mouthed against his Majesty The punishment of all offendors against the Lawes Q. â—â—ary 1. Mar. Pl. 2. cap. 2. belongs to the King and all jurisdictions do and of right ought to belong to the King This leaves all to his Majesty All Commissions to leavy men for the warre 4.5 P. M. c â— Q Eliz. 10 Eliz. Pl. 315. are awarded by the King The power of warre onely belongs to the King It belongs to the King to defend his people and to provide Armes and Force No speech of the two Houses Roy ad sble governmeni de ses subjects Plow 234.242.213 Calvins case 7. pars fol. 12. Plow com 213. Corps naturall le Roy politique sunt un corps That is the king hath the sole government of his Subjects the body politick and the naturall body of the King make one body and not divers and are inseperable and indivisible The body naturall and politique make one body Plou 914.243.213 Calvins case 7. pars fol. 12 and are not to be severed Ligeance is due to the naturall body and is due by nature Gods Law and Mans Law cannot be forfeited nor renounced by any meanes it is inseparable from the person Every Member of the House of Commons 1 Eliz cap. 1 Candries case 5 pars fol. 1 at every Parliament takes a corporall Oath That the King is the supreame and onely Governour in all causes in all his Dominions otherwise he is no Member of that House The words of the Law are in all causes over all persons The said Act of 1 Eliz. is but declarative of the ancient Law 4â— Eliz. 3. pars instit fol. 6.2 Candries Case ibid. The Earle of Essex and others assembled multitudes of men to remove Councellors adjudged Treason by all the Judges of England To depose the King 39 Eliz. Hil. 1 Iacobi ibid or take him by force to imprison him untill he hath yeelded to certaine demands adjudged Treason and adjudged accordingly in the Lord Cobbams Case Atising to alter Religion established 39 Ed. Brad case f. 9. 16. By all the Judges of England ibid. 10. Eli. Plow 316 or any Law is treason so for taking of the Kings Castles Forts Ports or Shipping Brooke treason 24.3 4. Philip and Mary Dier Staffords Case concerning Scarborough The Law makes not the servant greater then the Master nor the subject greater then the King for that were to subvert order and measure The Law is not knowne but by Usage and Usage proves the Law 10 Eliz. Plow 31â— and how Usage hath been is notoriously knowne The King is our onely rightfull and lawfull Leige Lord and Soveraigne K. Iames 1 Iac. cap. 1 9 Ed 4 fol 8 we doe upon the knees of our hearts adnize constant Faith Loyalty and Obedience to the King and his Royall progeny in this high Court of Parliament where all the body of the Realme is either in person or by representation We doe acknowledge hat the true and sincere Religion of he Church is continued and established by the King And doe recognize as we are bound by the Law of God and Man the Realme of England and the Imperiall crowne thereof doth belong to him by inherent birth-right and lawfull and undoubted succession and submit our selves and our posterities for ever untill the last drop of our blood be spent to his rule and beseech the King to accept the same as the first fruits of our Loyalty and faith to his Majesty and his posterity for ever and for that this Act is not compleat nor perfect without his Majesties assent the same is humbly desired This proves that the Houses are not above the King that Kings have not their titles to the Crown by the two Houses but by inherent birth right and that there can be no Statute without his expresse assent and destroyes the Chimera of the Kings virtuall being in the Houses To promise obedience to the Pope or any other State 3 Iae. cap. 4. 23 Eliz. c. 1. Prince or Potentate other then the King his heyres and successors is treason and therefore those persons who call the houses the Estates offend this Law Such Bils as his Majesty is bound in conscience and justice to passe K. Charles Collection of Ordinances fol. 727. 1 pars ib. fol. 728. are no Law without his assent To designe the ruine of the Kings person or of Monarchy is a monstrous and injurious charge Vbi lâ—x non distinguit non est distinguendum ibid. fol. 865. all the aforesaid Acts and Lawes do evidently prove the Militia to belong to the King that the King is not virtually in the two Houses that the King is not considerable separately in relation to his politick capacity that the King is not a person trusted with a power but that it is his inherent birth-right from God Nature and Law and that he hath not his power from the people These Lawes have none of those distinctions of naturall and politicke abstractum concretum power and person in Caesars time this Island had Kings and ever since which is almost 17 hundred yeares agoe No King can be named in any time made in this Kingdome by the people A Parliament never made King for they were Kings before the Parliaments are summoned by the Kings Writs which for Knights Citizens and Burgesses begins thus
the 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
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
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
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
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
Bill of attainder against the Earle of Strafford M. Solâ—â—tor pag. 2â— to declare the Law to be that Machination of war against the Lawes or Kingdome Mr. Piâ—â— Pa. 16â—â— is against the King they cannot be severed Mr. Pym had in charge likewise upon the same prosecution to declare That the King and his people are obliged one to another in the nearest relatition he is a Father the child in law is called pars patris he is the Husband of the Common wealth they have the same interests they are inseperable in their condition be it good or evill he is the Head they are the body there is such an incorporation as cannot be dissolved without the distruction of both This agrees with our Lawes 20. H. 7. fol. 7. 8. H. 7. fol. 12. 1 Ed. 5. fol. 3. 4. Ed. 4. fol. 25. 5 Ed. 4. fol. 2â— and the Law of this Land In that argument of Mr. Sollicitor and discourse of Mr. Pim directed by the House of Commons are contained the true rights liberties and lawes of the people deduced from our Ancestors in all ages wherein there is no line or word but is agreeable to the Lawes and is a necessary and usefull book to be perused and followed by all which book was published by Order of the House of Commons If the doctrine of that book had bin followed we had not bin so miserable as we are neither had these great eville ensued for the which the Land mourns In this Moneth of February Collect of Ordinances 1 pars fol 66 67 81 six years now past the onely Difference between his Majesty and the prevailing party in both Houses was touching the power of the Militia which in plain English is Power over Sea and Land this was the sole quarrell the King and his Progenitours have had it in al Times the Lawes have fixed it upon them they have used it for the Weal of the people none of the Subjects ever had it or claimed it the Lawes deny it them for the time they have had it our pressures have bin miserable His Majesty hath a numerous Issue and so hath his Father many great persons of England and Scotland are of the Bloud Royal and all the Kings of Christendom are of the same Bloud so long as the Lawes last or any of the said persons or their Descendants be living this people shall have neither peace nor profit but all the confusions that are imaginable will attend them And therefore at length be good to your selves restore our King receive from Him an Act of Oblivion a generall pardon Assurance for the Arreares of the Souldiery and meet satisfaction to tender consciences February 12. By David Jenkins 1647. Prisoner in Newgate THE ANSVVER OF Iudge Ienkins TO THE IMPVTATION PVT UPON HIS PLEA IN CHANCERY Which was read in open Court the 14 of Febr. 1647. And avowed by David Ienkins Prisoner in Newgate Printed in the Yeare 1648. THE ANSVVER OF Iudge Ienkins TO THE IMPVTATION Put upon him in CHANCERY I Have no disposition nor ever had to be known by any publique Writing these miserable Times which fill many mens mouthes and most mens eares with notorious Untruths thereby to blast and destroy the Kings Sacred Majesty his Lawes and Government and to bring in a confusion enforceth me at this time who formerly have written nothing but for the publique to let the World know how unjustly the Pamphleter of this Weeke Licensed by our Reformers hath traduced me touching a Suit commenced in their Court of Chancery against me by one M. Ernly a Willshire Gentleman touching the Estate of one M. Thomas of Glamorganshire the Truth whereof is as followeth M. Thomas whose Father and my Grandfather were two Brothers about seventeene yeares past made his Will and declared by the same his Son being then of very tender yeares a Ward to his Majesty and made him Executour and my selfe during his minority referring to his Wardship to Administer his Estate personall and testamentary and to be accountable to his Son when he came to Age And seventeene yeares sithence the Father died This Estate consists in a Stocke of Sheepe so disposed by me as the number are yet continued and for the number and condition they were at their delivery backe to be made as good by those persons who had the charge of them as they were when they were received The rest of the Estate for any considerable part was in Mortgages of Land forfeited in the life of my young Cousin Thomas for many of them many absolutely purchased by me in his name in his life time for the which I am not yet payd The Land discended and ought upon Sir Edward Thomas my consirs Heire at Common-Law so that Mr. Ernley the Plaintiffe in Chancery hath no colour for the Land For my young Cousin dyed without issue about 17. yeares old and could not dispose of the Inheritance of any Land by a pretended Will The stocke of Sheepe remaines if the Plaintiffe and the Reformers have not Plundered them for the Money it came all to the Court it was to satisfie the King for the Marriage The colour the Plaintiffe hath is this After the death of my olde Kinsman M. Thomas by undue means the young Genrleman was married to M. Ernleys Daughter in a way of Ravishment being both children without one penny payd or consent of Friends or Kindered For the which a Suit of Ravishment depended against M. Erneley and others in the Court of Wards The young Gentleman dyed about 17. yeares of age sithence these confusions without issue and some houre before my young Cousins death who dyed of a pestilent Feaver Mr. Erneley pretends a Will made by him and that he made his Wife M. Erneleys Daughter his Executrix His said Wife dies soon after is pretended to make a Nuncapative Will and to make her Father M. Ernley her Executor and so pretends as Executor of an Executor of an Executor which pretended Wills he saith he hath proved in the Courts of his Freinds the Reformers Whether such wills were made or no must receive an equall examination and of what validity they are being pretended to be made by children in extremis if made at all And whether an Executor of an Executor of an Executor can maintaine an account by the Law of the Land And whether I being Executor during the Minority viz. the Wardship my young Cousin could make such a Will as is pretended he being no Executor till his full age The age touching Wills 37 H 6 5 21 E. 4 24 the Law of this Land determins to be 21. years and before that age at common Law an use could not be devised For Wills touching goods and chattels our Law for many ages hath left the same to the decesion of the Civill and Canon Lawes in the Bishops Courts That Law as Justinian hath it in the second Bood of his Institutions the 12. chap. is Impuberi
THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins Prisoner in Newgate UPON Divers STATUTES Concerning the Liberty and Freedome of the Subject With a perfect Table thereto annexed Plebs sine Lege ruit LONDON Printed for J. Gyles and are sold at his shop at Furnivals-Inne MDCXLVIII Here JENKINS stands who thundring from the TOWER Shook the bold Senat 's Legislative Power Six of whose words twelve Reames of votes exceed As mountaines mov'd by graines of mustard-seed Thus gasping Lawes were rescu'd from the Snare He that will save a Crowne must know and dare Sould by I. Giles at Furnivals-Inn-gaw J. Berkenhead The Contents The Law of the Land The King Treason A Parliament The present Parliament Certaine Erroneus Positions and Proceedings of both Houses of Parliament The like of the House of Commons The Propositions of the Parliament of both Kingdomes sent to New-Castle The Kings Party The Parliaments Party are Delinquents The Army serving the two Houses The Army Rescuing the King The Liberty of the Subject Messellanâ—a The Law of the Land THE Law of the Land hath for its ground 1. Custome 2. Judiciall Records 3. Acts of Parliament The two latter being Declarations of the Common Law and custome of the Realme pag. 5.21.23 The Law of Royall Government is a Law Fundamentall p. 5. The Kings Prerogative and the Subjects Liberty are determined and bounded by the Law p. 131. The King claimes no power but by the law of the land p. 131. The Law the onely Rule and Direction of the Subject in this present Warre pag. 42 131. Vbi Lex non distinguit â—bi non est distinguendum p. 132. The King THE King of England hath his Title to the Crowne and to his Kingly Office and Power not by way of trust from the two Houses of Parliament or from the people but by inherent Birth-right from God Nature and the Law p. 24 25. 38. 52 53 54 56. 57. There was never King Deposed but in tumultuous and madde times and by the power of the Armyes and they who were to bee the succeeding Kings in the head of them as Ed 3. and Hen. 4. p. 54. Usurpers were Kings de factâ— not de jure p. 54. The King is assisted by the advice of the Judges his Counsell at Law Sollicitor Atturney Masters of Chancery and counsell of State hence the Law hath setled severall Powers in the King p. 27.28 The Kings of England enjoyed that Power in a full measure till King Iohns time p 6 7 8. How Rights of Soveraignty continued in practise from Hen. 3. till 1640 p. 6. The Kings Power not separable from his Person p. 70 71. The Body Naturall and Politique in the King make but one body p. 2.38.71 Every Subject swears homage to the King p. 8. The Law gives reverence to the Person of the King p. 10. Foule mouthed Pamphlets against the King condemned p. 21. The Supream Power is in the King p. 7.13.14.16.57 58. The Oath of Supremacy in relation to the Parliament p. 67.133 The King Supream in Ecclesiasticall causes p. 10. The King the onely Supreame Governour and all other persons have their power from him by his Writ Patent or Commission p. 20 21 22.36 37. 64 65. The power of the Militia is in the King p. 8.37 In the time of Parliament p. 8. The Commission of Array in force p. 13.36 The Power of making League with Forreigners is in the King p. 8.15.17 The power of War in the King p. 20.21 The power of making Officers in the King p. 8. The King onely hath power to make Justices of Peace and of Assize p. 45 100.12â— The power of coynadge in the King p. 8. The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130 The King hath power to remove the courts at Westminster p. 45. The King can do no wrong but his Judges Counselloâ—â—s and Ministers may p. 37.41 So long as men manage the Laws they will be broken more or lesse p. 29. Treason IN the Reign of Ed. 2. the Spencers the Father and the Sonne to cover their Treason hatched in their hearts invented this damnable and damned opinion that Homage and Oath of Allegiance was more by reason of the Kingâ— Crowne that is his Politique Capacity than by reason of his person upon which opinion they inferred three execrable and detestable Consequences First if the King do not demeane himselfe by reason in the right of his Crowne his Leidges are bound by Oath to remove the King Secondly seeing the King could not be reformed by suit of Law that ought to be done per asperte that is by force Thirdly his Leidges be bound to Governe in aid of him and in default of him p. 9.70 Severall Treasons by the Statute 25. 8d 3. p. 12 13 14 15 16 76. The word King in the 25. Edw. 3. must be understood of the Kings natural Person p. 12 13 77. Other Treasons not specified in that Act are declared to bee no Treasons untill the King and his Parliament shall declare otherwise p. 77.101 To seize the Kings Forts Ports Magazine of Warre is High Treason p. 11. 22â— 37.77 To remove Counsellours by Arms is high Treason p. 22.40 To leavie Warre to alter Religion is high Treason p. 40. To leavie war to alter the Law is high Treason p. 11.40.77 To counterfeit the great Seal is high Treason p. 37. To adhere to any State within the Kingdom but the Kings Majesty is high Treason 24.39 To imprison the King untill hee agree to certaine demands is high Treason p. 1â— 22.77 They who imprison the King purpose to destory him p. 163. Deposers of the King adjudged Traitors by the Law of the Land p. 54. A Body Corporate cannot commit Treason but the persons can p. 16. Noble men committing Treason forfeit their Office and Dignity p. 143. Treason how punished by the Law p. 42. Treason doth ever produce fatall destruction to the Offender and never attaines to the desired end and there are two incidents inseparable thereunto p. 135. A Parliament THe word Parliament cometh from the French word Parler to Treat p. 81. The King is Principium Caput Finis Parl. p 26.48.122 The King assembles the Parliament by his Writ Adjournes Prorogues and dissolves the Parliament by the Law at his pleasure p. 57. The Writ whereby the King assembled the two Houses which is called the Writ of Summons at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peers to Consult and Treat with the King that is the Parler of great Concernments touching 1. The King 2. The defence of this Kingdome 3. The defence of the Church of England p. 24.34 p. 25.81.120 121. Counsell is not command Councellors are not Commanders p. 26. The Writ of summoning the Judges Counfell of Lâ—w and 12 Masters of Chancery is to appeare and attend the Parliament to give Counsell p.
116. The Writ of summoning the Commons is to doe and to consâ—nt to such things which shall happen to bee ordained by Common Counsell there viz. in the Parliament p. 25.26.115 The Parliament is a Corporation composed of the King the head and the Lords and Commons the Subject body p. 5. l. 22. p. 19.20.49.50.80.122.142.145.146 And it hath power over our Lives Libertyes Lawes and Goods p. 118. The Court of Parliament is onely in the House of Lords where the King sits in person p. 116.122.144 The Office of the Lords is to Counsell the King in time of Peace and to defend him in time of War p. 116.142 It belongs to the House of Lords to reforme erroneous Iudgements given in the Kings Bench to redresse the delayes of Courts of Iustice to receive all Petitions to advise his Majesty with their Counsell to have their Votes in Voting or abrogating of Laws and to propose for the Common good what they conceive meet p. 33. How Errours in Iudgement are reversed by the House of Lords p. 55. At a Conferrence the Commons are alwaies uncovered and stand when the Lords sit with their hats on which shewes that they are not Colleagues in Iudgement with the Lords p. 147. Every Member of the House of Commons takes the Oath of Allegiance and Supremacy before his admission into the House p. 67.133 Briberies Extortions Monopolyes ought to bee enquired after by the House of Commons and complained of to the King and Lords p. 114. It belongs to the House of Commons to represent the Grievances of the Countrey to grant Aydes for the King upon all fit occasions extraordinary to assent to the making or abrogating Lawes p. 33.115 116 117 118. Because making of new and abrogating of old Lawes both induce Novelties and because Bils in both Houses may passe but by one or two voices or very few and perhaps of no Iudicious men who oftentimes carry it by making the Major part which involves the consent of all therefore the Law makes the King assisted therein by a great number of Grave Learned and Prudent men the Judge of those Bils whether they be necessary for the Publique Good or no. p. 32 3â— 53.57.123 And the King upon all Bills hath liberty of assenting or dissenting p. 18.28.39.111 And in case of the Kings Minority the Protector hath his liberty and negative voice in respect of the King p. 52. The styles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either the King Ordaines at his Parliament c. Or the King Ordaineth by the advice of his Prelates and Barons and at the humble petition of the Commons c. In Hen. 7. time the style was altered and hath so continued to this day p. 24.71 No Act of Parliament bindes the Subject without the assent of the King p. 71.72 When an Act of Parliament is against common Right or Reason or repugnant or impossible to bee performed the Common Law shall controle it and adjudge it to be void And such is an Act for a perpetual Parliament p. 139. An Act of Parliament that a man shall bee Iudge in his own cause is a voyd Act. p. 139. An Adjournment of the parliament makes no Sâ—ssion p. 137. There is no Sâ—ssion till a prorogation or dissolution of the Parliament p. 137. All the Acts of one Sâ—ssion relate to the first day of the Parliament p 138. The two Houses ought to take care of the preservation of the Kings Person p. 18. The Lords and Commons cannot assent to any thing that tends to the disinherison of the King and his Crown to which they are sworn p. 11. The two Houses ought not to meddle with the Kings Revenue p. 11. Armes are not to be borne in London or Westminster in time of Parliament p. 8.39 The Priviledge of Parliament protects no man in case of Treason or â—elony p. 15.16 78. Parliaments are as the times are if a turbulent Faction prevailes the Parliament are wicked if the times be sober modest prudent and not biassed the Parliament are right good honourable and good Medicines and Salves p. 41.42 The present Parliament THis Parliament beganne 3. Novemb. 1640 and in the beginning thereof the King acquitted the Ship-Money Knighthood-Money seven Courts of Justice consented to a Triâ—niall parliament setled the Forrest bounds tooke away the Clarke of the Market of the Houshold trusted the Houses with the Navy passed an Act not to dissolve this Parliament without the Houses assent No people in the world so free if they could have been content with Lawes Oathes and Reason and nothing more could nor can bee devised to serve us neither hath been in any time before p. 3â— Notwithstanding all this Jan. 10. 1641. the King was driven away from London by frequent Tumults and 2. thirds and more of the Lords had deserted that House for the same cause and the greater put of the House of Commons left that House also for the same reason New men chosen in their places against Law by the pretended Warrant of a counterfeit Seale and in the Kings name against his consent leavying War against Him and seizing his Forts Ports Magazins and Revenue and converting them to his destruction the subversion of the Law and Land laying Taxes on the people never head of before in this Land devising new Oathes to oppose the Forces raised by the King c. p. 35. From the 3 Novem. 1640. uâ—â—o Ian. 10 164â— they had time to persecute all evil Counsellors and Iudges p 17 4â— From that time the King was driven away the two Houses stood in opposition to the king and his power p. 66. This became no Parliament when the King with whom they should parley was driven away and it continues so whilst his Majestic is restrained as a prisoner p. 35.81 And the houses now severed from the King have no power at all no more than the body hath being severed from the head p. 80.112 The 2. Houses do not now act by the Kings Writ but contrary to it p. 121. And so their Acts are Null p. 122 141. The Act for continuing this parliament so long as both Houses please is voyd because it is 1. Against Common right for thereby the parliament men will not pay their debts And they may doe wrong to other men Impune besides the utter destruction of all mens actions who have to doe with Parliament men by the Statute of Limitation 21. Jacob. 2. Against common reason for parliaments were made to redresse publique Grievances not to make them 3. Impossible the Death of his Majesty whom God long preserve dissolving it necessarily 4. Repugnant to the Act for a Trienniall parliament and to the Act for holding a parliament once a yeare p. 139.140 The end of continuing this parliament was to raise Credit for mony for three purposes And the three ends of the Act being determined it agreeth with Law and Reason the Act should end p. 141. A perpetuall parliament
besides that it incites men to selfe ends will be a constant charge to the Kingdome by reason of the wages of parliament men p. 141. Mischiefs by the length of parliaments p. 121. Certaine Erroneus Positions and Proceedings of both Houses of Parliament discovered and confuted THe two Houses without the King are not the Parliament but onely parts thereof and by the abuse and misunderstanding of this word Parliament they have miserably deceived the people p. 80.156 The King is not vertually in the two Houses p. 12.13.20.21 The two Houses are not above the King but the King is Superiour to them p. 11.19.23 24.133 The tenents of the Spencers are the ground of their proceedings p. 10.22 And upon their pretences they take upon them the Government at this time They have destroyed above a 100. Acts of parliament even all concerning the King the Church and Church men and in effect Magna Charta and Charta de Forresta which are the Common Lawes of the Land p. 154. They have fifteene severall illegall wayes raised Money upon the Subject this present parliament p. 35. There is no Crime from Treason to Trespasse but they are guilty of p. 142. They are not to bee Judges in their owne cause p. 15. Of their League and Covenant with the Scots p. 158.160 The two Houses by the Law of this Land have no colour of power to make Delinquents or pardon Delinquents the King contradicting p. 119.131 Certaine Erroneous Positions and Proceedings of the House of Commons discovered and confuted THey cannot bee Members of the House of Commons who were not recident in the Counties or Burroughs for which they were elected at the time of the Teste of the Writ of Summons of parliament p. 149. If any undue Returne bee made the person Returned is to continue a Member and the tryall of the Falcity of the Returne is to bee before the Justice of Assize in the proper County this condemnes the Committee for undue Elections p. 148. The House of Commons cannot Elect and Returne Members of that House p. 144. The ejecting of a Member that hath sitten is against Law also their new elections are against Law And by this it may be judged what a House of Commons we have p. 148. Breaches of priviledges of parliament may bee punished in other Courts p. 149. And what need then of the Committee for priviledges The house of Commons by their Writ have no separate power giuen them over the Kings people p. 144. The house of Commons cannot imprison any who are not their Members or Disturbers of their Members in the service of the parliament p. 143 144 145. The House of Commons no Court p. 115 116.144 145 146 c. The Propositions sent by the Parliaments of both Kingdomes to His Majestie at New-Castle pag. 6. GEnerall Reasons against those propositions p. 11.15.128 Reasons in particular against those propositions For disabling the King to pardon p. 13. For altering Religion in point of Government 37.61.63 For sale of the Bishops Lands p. 36. For taking away the Booke of Common-prayer p. 37. For taking from his Majesty all the power by Land and Sea p. 37. For laying upon the people what Taxes they shall think meet p. 128. Besides in their propositions they doe not style themselves His Majesties Subjects p. 128. The Kings Party pag. 36 37 38. THe Subjects are commanded by Law to Assist the King in War 36. Those who adhere to the King are freed by the Statute of the 11th Hen. 7. p. 39.78.97 Master Prins objections against the King and his party answered p. 47. c. The Parliaments Party are Delinquents A Delinquent is hee who adheres to the kings enemies this shewes who are Delinquents p. 7. The Army serving the Parliament THe summe of the Ordinance for the Indempnity of the Army p. 79. It can no more free the Souldiers than repeale all the Lawes of the Land p. 78. The Judges are sworn to doe Justice according to the Lawes of the Land p. 79. An Act of Oblivion and a Generall Pardon the only means to Indempnifie the Army and the whole kingdome p. 84. And the conclusion of all the other bookes The Army Rescuing the King TO deliver the King out of Traiterous hands is our bounden duty by the Law of God and the Land p. 155. By the Law of the Land when Treason or Felony is committed it is lawfull for every subject who suspects the Offender to apprehend him so that Justice may be done upon him according to Law p. 157. As the Army hath power so adhering to the King all the Lawes of God Nature and man are for them p. 166. None by the Law of the Land can in this kingdome have an Army but the King p. 153. The Liberty of the Subject Our Liberties were allowed in the 17th of King John and confirm'd in the 9th of Hen. 3. and are called Mâgna Charta and Charta de Forresta p. 6.117.130 Magna Charta is irrepealable p. 62. Severall Bils for our Liberties passed at the beginning of this Parliament p. 34. And how secured The Liberty of the Subject violated by the two Houses of Parliament 140 Miscellanea THe Lord Cookes Institutes published by the Order of the House of Commons p. 77. Of the Bill passed this parliament for taking away the Bishops Votes in Parliament p. 31. Against that saying that the King got away the Great Seal surreptitiously from the Parliament p. 45. Of Jack Cade p. 160. Treasons Murthers Felonies and Capitall Crimes to bee tryed by Iuries and not otherwise but by Act of parliament p. 102. The Chancellors or Keepers Oath 174. The present Commissioners have no Court Seal nor commission 175. The King the Laws and kingdome cannot bee severed The only quarrell was for the Militia which the Laws have ever setled upon the King 177. No peace can possibly bee had without the King ibid. No man can devise lands till he be 21 years of age 1. 84. An Infant of 17 years may dispose of goods by will by the opinion of some but by others not till 18. 181. The Court of Wards had no jurisdiction over the personall estate 185. Peace and plenty abounded during his Majesties Government 187. Since the two Houses have usurped the power the kingdom hath been in a sad condition 19. Nothing delivered in this book for Law but what the house of commons have avowed for Law this Session 194. The 24 positions of Law set out in divers books by the House of commons order p. 196. It is honourable to dye for the Laws 202. Good counsell for them if it be taken in time 203. That which will save this Land from destruction is an Act of Oblivion and his Majesties Gracious Generall pardon the Souldiers their Arrears and every man his own and truth and peace established in this Land and favourable regard had to the satisfaction of tender Consciences God save the King To the Honourable Societies of Grayes
Inne and of the rest of the Innes of Court and to all the Professors of the LAW I Have now spent Forty five yeares in the Study of the Laws of this Land being my Profession under and by the conduct of which Lawes this Common-wealth hath flourished for some ages past in great splendor and happinesse jam seges est ubi Troja fuit The great and full body of this Kingdome hath of late yeares fallen into an extreame sicknesse it is truely said that the cause of the disease being knowne the disease is easily cured There is none of you I hope but doth heartily wish the recovery of our common parent our native countrey Moribus antiquis stat res Britannica I call God to witnesse that this discourse of mine hath no other end then my wishes of the common good how farre I have been from Ambition my life past and your owne knowledge of me can abundantly informe you and many of you well know that I ever detested the Ship-money and Monopolies and that in the beginning of this Parliament for opposing the excesses of one of the Bishops I lay under three Excommunications the Examination of seventy seven Artioles in the high Commission Court His sacred Majesty God is my witnesse made me a Judge in the parts of Wales against my will and all the meanes I was able to make and a patent formy place was sent me for the which I have not paid one farthing and the place is of so inconsiderable a benefit that it is worth but 80. l. per Annum when paid and it cost me every yeare I served twice as much out of my owne estate in the way of an ordinary and frugall expence That which gave me comfort was that I knew well that his Majesty was a just and a prudent Prince In the time of the Atturneyships of Mastor Noy and the Lord Banks they were pleased to make often use of me and many referrences concerning suits at Court upon that occasion came to my knowledge and as I shall answer to God upon my last account this is truth that all or most of the referrences which I have seene in that kind and I have seene many were to this effect that his Majesty would be informed by his Councell if the suits preferred were agreeable to the Lawes and not inconvenient to his people before he would passe them what could a just and pious Prince doe more Gentlemen you shall finde the cause and the Cure of the present great distemper in this discourse and God prosper it in your hands thoughts and words as the case deserves Hold to the Lawes this great body recovers forsake them it will certainely perish I have resolved to tender my selfe a Sacrifice for them as cheerefully and I hope by Gods assistance as constantly as old Eleazer did for the holy Lawes of his Nation Your Well-wisher David Jenkins Now Prisoner in the Tower LEX TERRAE THe Law of this Land hath three grounds First Custome Secondly Iudiciall Records Thirdly Acts of Parliament The two latter are but declarations of the Coumon-Law and Custoâ—e of the Realme touching Royall Government And this Law of Râ—yall Gâ—vernment is a â—aw Fundamentall The Government of this Kingdome by a Râ—yall Soveraigne The Kings Prerogative is a principall part of the common Law Com. Lital 34â— 27 Hen. 8. Stamford Praâ— fol. 1. 2 Pars inflit fol. 496 3 Parsinstit pag. 84. hath been as ancient as History is or the memoriall of any time what power this Soveraignty alwaies had and used in warre and peace in this Land is the scope of this discourse That Vsage so practised makes therein a Fundamentall Law and the Common Law of the Land is common Vsage Plâ—wdens Commentaries 195. For the first of our Kings sithence the Norman Conquest the first William second William Henry the first Stephen Henry the second and Richard the first the Customes of the Realme touching Royall Government were never questioned The said Kings injoyed them in a full measure In King Iohns time the Nobles and Commons of the Realme conceiving that the ancient Customes and Rights were violated and thereupon pressing the said King to allow them in the seventeenth of King Iohn the said Liberties were by King Iohn allowed and by his Sonne Henry the third after in the niâ—th yeare of his Reigne confirmed and are called Magna Charta and Charta de Foresta declared foure hundred twenty two yeares sâ—hence by the said Charters Now â—ests to be considered after the Subjects had obtained their Rights and Liberties which were no other then their ancient Customes and the fundamentall Rights of the King as Soveraigne are no other How the Rights of Soveraignty continued in practise from Henry the thirds time untill this present Parliament of the third of November 1640. for before Henry the thirds time the Soveraignty had a very full Power Rex habet Potestatem jurisdictionem super omnes qui in Regno suo sunt Bracton temp H. 3. l. 4 cap. 24. Sect. 1. ea quae sunt jurisdictionis paucis ad nullum pertinent nisi ad Regiam dignitatem habet etiam coercionem ut Delinquentes puniat coerceat This proves where the supreme Power is A Delinquent is he who adhears to the Kings Enemies Com. Sur. Litil 261. This shewes who are Delinquents Omnis sub Rege ipse sub nullo nisi tantum Deo nonest inferior sibi Subjectis Soct 5. Bracâ— ibid. non parem habet in Regno suo This shewes where the supreme power is Rex non habet superiorem nisi Deum satis habet ad poenam quod Deum expectat ultorem Bracton l. 5. tract 3. de delaiti cap. 3 Bracton l. 3 cap. 7. This shewes where the supreme power is Treasons Fellonies and other Pleas of the Crowne are propria causa Regis This shewes the same power By these passages it doth appeare what the Custome was for the power of Soveraignty before that time the power of the Militia of coyning of Money of making Leagues with forraigne Princes the power of pardoning of making of Officers c. All Kings had them the said Powers have no beginning Sexto Edw. 1. Com. Sur. Eittl 85. Lege Homage every Subject owes to the King viz. Faith de Membro de vita de terreno Honore the forme of the Oath Edward 1. inter vetera statuta is set downe We read of no such or any Homage made to the two Houses but frequently of such made by them It is declared by the Prelates Earls Barons and Commonalty of the Realme that it belongeth to the King and his Royall Segniory â— Ed. 1. Strasuâ—e at large fol. 42. straitly to defend force of Armour and all other force against the Kings peace at all times when it shall please him and to punish them that shall doe contrary according to the Law and Usage of the Realme and hereunto they are bound to ayd their
the practise of all times and the Custome of the Realâ—â—e Sixthly we maintained the coâ—â—terâ—eiting of the great Sealâ— to be high Treason and so of the usurpation of the Kings forts Do is Shipping Casties and his Revenue and the coâ—â—ing of Money against them We have our warrantâ— by the said Statute of the twenty fifth of Edward the third Chapter the second and divers others since and the practise of all times Seventhly we maintaine that the King is the onely supreme Governour in all causes They that his Majesty is to be governed by them Our warrant is the Statutes of the first of Queene Elizabeth Chapter the first and the fifth of Queene Elizabeth the first Eightly We maintaine that the King is King by an inherent birth-right 9 Ed. 4. fol. â— by nature by Gods Law and by the Law of the Land They say his Kingly right is an Office upon trust Our warrant is the Statute of the first of King James Chapter the first And the resolution of all the Judges of England in Calvins Case Ninthly wee maintaine that the politick capacity is not to be severed from the naturall They hold the contrary Our warrant is two Statutes viz. exilium Hugonis in Edward the seconds time and the first of Edward the third Chapter the second and their Oracle who hath published it to Posterity that it is damnable detestable and execrable Treason Calvins Case yeers 7. fol. 11. Tenthly wee maintaine that who â—â—des the King at home or abroâ—d ought not to be molested or questioned for the same they hold and practise the contrary Our warrant is the Statute of the eleventh of Henry the seventh Chapter the first Eleventhly wee maintaine that the King hiâ—h power to disassent to any Bill agreed by the two Honses which they deny Our warrant is the Statute of the second of Henry the fifth and the practice of all times the first of King Charles Chapter the seventh the first of King James Chapter the first Twelfthly wee maintaine that Parliaments ought to be holden in a grave and peaceable manner without tumults 3. They allowed multitudes of the meanest sort of the people to come to Westminster to cry for justice when they could not have their will Coll. of Ord. fol. 31. and keepe guards of armed men to wait upon them Our warrant is the Statute of the seventh of Edward the second and their Oracle Thirteenthly wee maintaine that there is no State withâ—n this Kingdome but the Kings Majesty and that to adhere to any other State within this Kingdome is high Treason Our warrant is the Statute of the third of King James Chapter the fourth and the twenty third of Queene Elizabeth Chapter the first Fourteenthly wee maintaine that to â—evy a waâ—â—e to remove Couâ—sellours to aâ—ter Religion or any Land established is high Treason They hold the contrary Our warrant is the resolutions of all the Judges of England in Queene Eliznbeths time and their Oracle agrees with the same Fifteenthly wee maintaine that no man should be impusoned put out of his Lands but by due coâ—rse of Law and that no man ought to be adjadged to death but by the Law established the Câ—â—stames of the â—â—â—â—me or by Act of Paâ—â—tement They practise the contrary in London Bristol Keâ—t c. Our warrant is Magna Chanta Chapter the twenty ninth the Pâ—â—ition of Right the third of King Charles and divers Lawes there mentioned Wee of the Kings party did and do detest Monopolies and Ship-money and all the grievanâ—es of the people as muâ—h as any men living wee do well know that our estates lives and fortunes are preserved by the Lawes and that the King is bound by his Lawes wee love Parliamenss if the Kings Judges Counsell or Ministers have done amisse they had from the third of November 1640. to the tenth of January 1641. time to punish them being all left to justice Where is the Kingâ— fault The Law saith the Kings can do no Wrong 11. pars Cooks Reports Magdalen Colledge Case that he is medicus Regni pater patriae sponsus Regni qui per annulum is espoused to his Realme at his Coronation The King is Gods Lieutenant and is not able to do an unjust thing these are the words of the Law 〈◊〉 matter is pretended that the 〈◊〉 are not sure to enjoy the Acts passed this Parllament A succeeding Parliament may repeale them The objection is very weake a Parliament succeeding to that may repeale that repealing Parliament That â—eare is endlesse and remedilesse for it is the essence of Parliaments being compleat and as they ought to be of Head and all the Members to have power over Parliaments before Parliaments are as the times are If a turbulent faction prevailes the Parliaments are wicked as appeares by the examples recited before of extreme wicked Parliaments if the times be sober and modest prudent and not biassed the Parliaments are right good and honourable and they are good medicines and salves but in this Parliament excessit medicina mâ—dum In this cause and warre betweene the Kings Majesty and the two Houses at Westmiester what guide had the Subjects of the Land to direct them but the Lawes What meanes could they use to discerne what to follow what to avoid but the Lawes The King declares it Treason to adhere to the Houses in this warre The Houses declare it Treason to adhere to the King in this warre The Subjects for a great and considerable part of them Treason being such a crime as forfeits life and estate also renders a mans Posterity â—ase beggerly and infamous looke upon the Laws and finde the Letter oâ— tho Law requâ—res them to a 〈◊〉 the King as before is manifested was ever Subject criminally punisht in any age or Nation for his pursuit of what the Letter of the Law commands The Subjects of the Kingdome finde the distinction and interpretation now put upon the Lawes of Abstractum Concretum Poweâ— and Person body politick and naturall personall presence and virtuall to have beene condemned by the Law and so the Kings Party had both the Letter of the Law and the interpretation of the Letter cleared to their judgments whereby they might evidently perceive what side to adhere to what satisfaction could modest peaceable and loyall men more desire A verbo legis in criminâ—bus poenis non est recedentum hath been an approved maxime of Law in all ages and times Coll. of Ordinances 777. If the King be King and remaine in his Kingly Office as they call it then all the said Lawes are against them without colour they say the said Lawes relate to him in his Office they cannot say otherwise they make Commissions and Pardons in the Kings name and the person of the King and his body politick cannot nor ought to be severed as hath beene before declared 5 Eliz. cap. 1. 1 Eliz. cap. 1. And the Members of both Houses have sworne
7 Ob. as King is present in his Parliament as well as in all other his Courts of Justice howbeit he is not there In his other Courts of Justice he hath no voyce Sol. he is none of the Judges in the Parliament he hath if his presence be not necessary his voyce is not nor his assent The originall prime legislative power of making Lawes 8 Ob. Soveraigne power of Parliaments 4â— 44 Sol. to binde the Subjects and their posterity rests not in the King but in the Kingdome and Parliament which represents it Master Prinne in the same lease affirmes and truly that the Kings assent is generally requisite to passe Lawes and ratifie them the King is the Head of the Kingdome and Parliament how then can a Body act without a Head A major part of a Corporation bindes 9 Ob. therefore the major part in Parliament and so of by Lawes The Corporation is so bound Sol. either by the Kings Charters or by prescription which sometimes had the Kings concession but prescription and Law and practise alwaies left the King a negative voyce The King cannot alter the Bills presented to him by both Houses 10 Ob. go. True Sol. but the King may refuse them Acts of Parliament and Lawes ministred in the Reignes of Usurpers 11 Ob. binde rightfull Kings g o What is this to prove the two Houses power only which is the question Sol. A King de facto must be obeyed by them who submitted to him and they are his Subjects by their submission and not Subjects de facto to the true King 9 Ed. 4. and such being Traytours and Rebells to the Regent King having renounced the true King when the lawfull King is restored may be punished by him for their Treason against the Usurper But here is a King still in both cases and the proceedings at Law holds the Judges having their Patents from the being Kings in the Reignes of Kings de facto or de jure for all Kings are bound and sworne to observe the Lawes A King dyes without Heire 12 Ob. is an Infant non compos mentis c. the two Houses may establish Lawes g o There is no Inter-regnum in England Sol. as appeares by all our Bookes of Law and therefore the dying without Heire is a vaine supposition and by their principle he is considerable in his politick capacity which cannot dye at all The Protectour assisted by the Councell of the King at Law his twelve Judges the Councell of State his Attorney Solicitor and two Sergeants at Law his twelve Masters of the Chancery hath in the Kings behalfe and ever had a Negative Voyce but what is this to the present question We have a King of full age of grear wisdome and judgement the power of the two Houses in such a case to be over the King cannot be showne The King cannot disâ—assent to publique and necessary Bills for the common good 13 Ob. g o Nor ever did good King Sol. but who shall be judge whether they be publique and necessary The major part in either of the Houses for passing of Bills so pretended may be but one or two voyces or very few and perhaps of no judicious men is it not then fitter or more agreeable to reason that his Majesty and Councell of State his twelve Judges his Sergeants Attorney and Solicitor twelve Masters of the Chancery should judge of the conveniency and benefit of such Bills for the publick good rather then a minor of which sort there may be in the Houses or a weake man or a few who oftentimes carry it by making the major part which involves the consent of all Let reason determine The Kings of England have been elective 14 Ob. and the King by his Coronation Oath is bound to maintaine justas leges consuetudines quas vulgas elegerit g o Popery hath been in the Kingdome Sol. and therefore to continue it still will not be taken for a good argument when things are setled for many ages to looke back to times of confusion is to destroy all repose The Act of Parliament of the first of K. James Chapter the first and all our extant Lawes say that the Kings Office is an heritage inherent in the bloud of our Kings and their Birth-right And Usurpers that come in by the consent of the people â— Ed. 4. c. 1 are Kings de facto but not de jure as appeares by the Acts of Parliament declaring them so and by all our Law-bookes and the fundamentall constitution of the Land Regall power is hereditary and not elective For the words vulgus elegerit if vulgus be applyed to the House of Commons 1 Hen 7. they of themselves can make no Lawes The Peeres were never yet termed vulgus but allowing they be so called the Lawes to be made be just and who is fit to judge thereof is before made evident Customes cannot referre to future time 15 Ob. and both are coupled Lawes and Customes Princes have been deposed and may be by the two Houses g o The deposers were Traytours Sol. as appeares by the resolution of all the Judges of England Coke Chap. Treason in the second part of the Institutes And never was King deposed but in tumultuous and mad times and by the power of Armies and they who were to be the succeeding Kings in the head of them as Edward the third and Henry the fourth The appeale to the Parliament for errours in Judgements in all Courts is frepuent 16 Ob. g o This is onely to the House of Lords Sol. and that is not the Parliament the House of Commons have nothing to doe therewith and in the House of Peeres if a Writ of Errour be brought to reverse any judgement there is first a Petition to the King for the allowance thereof and the reason of the Law in this case is for that the Judges of the Land all of them the Kings Councell and twelve Masters of the Chancery assist there by whose advice erronious judgements are redressed The Parliaments have determined of the rights of Kings 17 Ob. as in Henry the sixts time and others and Parliaments have bound the succession of Kings as appeares by the Statute of the thirteenth of Queene Elizabeth Chapter the first And the discent of the Crowne is guided rather by a Parliamentary Title then by common Law g o If this objection be true Sol. that the Title to the Crowne is by Parliament then we had no Usurpers for they all had Parliaments to backe them yea Richard the third that Monster All our Bookes of Law say they have the Crowne by discent and the Statutes of the Land declare that they have the same by inherent birth-right And the Statute of the thirteenth of Elizabeth the first Chapter was made to secure Queene Elizabeth against the Queene of Scots then in the Kingdome clayming the Crowne of
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-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
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.
proceribus c. King charles being to have conforence and Treaty with his Prelates and Peeres carolus Rex cannot have colloquium et tractatum Conference and Treaty when he is deceased 2 H. 5. Cook title Parl. 3. pars and therefore it is as impossible for any Parliament to continue as long as they please as for a Parliament to make a dead man alive For Repugnancy That which is but for a time cannot be affirmed to have continuance for even it is repugnant The end of the Act 17 Caroli Regis which is to continue at pleasure is in the said act expressed to be to raise credit for Mony for these three purposes First for relief of his Majesties Army and People in the North. Secondly for preventing the imminent danger of the Kingdome Thirdly for supply of other his Majesties present and urgent occasions These ends are ended the relief of that Army the imminent danger supposed was six yeares agoâ— the supply of his Majesty hath been a supply against Him take away the end the meanes thereto are to no purpose Sir Anthony Maines case 5. pars 1. H. 4.6 Littl. cap. Villen take away the cause the effect ceaseth and therefore the three ends of this Act being determined it agreeth with Law and reason the Act should end the Law rejects things unprofitable and uselesse A perpetuall Parliament besides that it incites men to selfe-ends destructive of the publique of which the whole Kingdom hath had sufficient experience will be a constant charge to the Kingdom for that every County and Borough who send Members to the Parliament are by the Law to pay Wages to their Parliament-men which to many Counties will amount above some Subsidies yearly there are many poor Borough-Towns in each County of this Kingdom who being to maintain two Burgesses in Parliament will be quickly beggered if the Parliament have no end for all which reasons it is clear that such long continuance of Parliaments will instead of a remedy which is and ought to be the proper and true ends of Parliament become an insufferable Grievance and Oppression to all the People of the Land The Writ of Summons this Parliament is the Basis and Foundation of the Parliament If the foundation be destroyed the Parliament falls The Assembly of Parliament is for three purposes Rex est habiturus colloquium tractatum cum Praelatis magnatibus et proceribus super arduis negotijs concernentibus 1. nos 2. Defensionem regninostri 3. defensionem Ecclesiâ—â—-Anglica nae This parliament hath overthrown this foundation in all three parts 1. Nos The King they have Chased him away and imprisoned him they have voted no prelates and that a number of other Lords about fourty in the City must not come to the House and about fourty more are out of Town the colloquium tractatus are made void thereby For the King cannot consult and treat there with men removed from thence 2. Defensionem regmâ—nostri that is gone they have made it their Kingdom not His for they have usurped all his Soveraignty 3. Defensionem Ecclesiae Anglicanâ— that is gone that Ecclesia Anglicana must be understood necessarily that Church that at the test of the Writ was Ecclesia Anglicana they have destroyed that too So now these men would be called a Parliament having abated quashed and made nothing of the Writ whereby they were summoned and assembled If the Writ be made void All the Processe is void also that House must needs fal where the Foundation is overthrown Sublaâ—o fundamentâ— opus cadit the foundation being taken away the work fals is both a Maxime in Law and reason For some years past there is no crime from treason to trespass but they are guilty of all treasons Felonies Robberies Tresspasses are câ—ntra pacem coronam dignitatem Regis against the Peace Crown and Dignity of the King as appeares by all Indictments in all Ages Pax Regis the Kings peace Corona Regis the Kings crown Dignitas Regis the Kings dignity are all trod under foot and made nothing Pax Regis the peace of the King is become a Warre against the King his Dignity put into Prison and the Crown put upon their owne heads All the Judges of England have resolved that Noble Men committing Treason have forfeited their office and Dignity Nevils case 7. part 34.2 Iac. their office is to councell the King in time of Peace to defend him in time of Warre and therefore those men against the duty and end of their Dignity taking not only councell but Armes also to destroy him and being thereof attaint by due course of Law By a tacit condition annexed to the estate of their dignity have forfited the same they are the words of the law and therefore they have made themselves incapable to be Members of the upper House The Oppressions of the People Briberies Extortions Monopolies ought to be inquired after by the House of Commons and complained of to the King and Lords What have they done The House of Commons cannot by the Law commit any man to prison who is not of the said House for Treason Murder or Fellony oâ— any thing but for the disturbance of the publique peace by the priviledge of the whole Body They have no power by the Writ which the King issueth to elect and returne Members of that house so to do For the Writ for them is onely ad faciendum consentiendum to those things where of his Majesty shal consult and treat with his Prelates and Nobles dâ— communi consilio regni shall be there ordained as appears by the Writ Here is no separate power given over the Kings people to them but only ad faciendum â—onsentiendum and in all times this â—â—th beene expounded and restrained to that which concerned their own Members in relation to the publique Service 4. pars inst 23 24 25. as they are Members of the corporate Body of the Parliament where of the King is the Head But that the House of Commons have commited any man for Treason Murder or Felony or for any offence that had no relation to a Member of the House of Commons as it is against Law and reason so no instance can be given till this Parliament All Questions and Tryalls where witnesse are examined 19. H. 6.43.22 E 4.22.5 H. 4. c. 8.3 H. 6.46 the Examination is upon Oath by the Law by all our Books Statutes every dayes practice Examination without an Oath is but a loose discourse therefore the House of Commons not claiming power to give Oath have no power to examine any man No man shall be imprisoned by the King or his Councell 25. E. 3. c 4. Petition of Right 3 Car. unles it be by indictment presentment of his good and lawfull Neighbours where such deeds be done in due manner or by process made by Writ original at the Common Law this Statute rehearses Magna Charta p. 29. expounds
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
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
themselves and the people with the word Parliament without the King and with the Covenant whereas they know they are no Parliament without His Majesty And that English men throwout the Kingdome should swear a Covenant to preserve the reformed Religion of Scotland in Doctrine Worship Discipline and Government which they do no more know than the Doctrine Worship Discipline and Government of Prester John in Aethiopia 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 hour 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 mens 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 Quaere is thus answered You resemble the Army to Jack Cade and his complices and you cite the Act of Parliament of 31. Hen. 6. cap. 1. And that it may appear who acts the part of Jack Cade you and that party in the two Houses or the Army I think it necessary to set down the said Act in words at length as followeth First VVhereas the most abominable Tyrant horrible odious arrant false Traytor John Cade calling and nameing himself sometime Mortimer sometime Capt. of Kent which name fame acts and feates are to be removed out of the speech and minds of every faithfull Christian man perpetually falsly and tralterously purposing and imagining the perpetuall destruction of the Kings said Person finall subversion of this Realm taking upon him Royall Power and gathering to him the Kings people in great numbers by false subtile imagined language and seditiously making a stirring Rebellion Insurrection under colour of Iustice for Reformation of the Lawes of the said King robbing stealing and spoyling 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 the advice and consent of the Lords aforesaid at the request of the said Commons and by authority aforesaid hath Ordained and established that the said John Cade shall be reputed had named and declared a false Trayper to enr Soveraigne Lord the King and that all his tyranny acts feats and false opinions shall be voyded abated nulled destroyed and put out of remembrance for ever and that all Indictments and all things depending thereof had and made under to power of Tyranuy shall be likewise void anuulled abated repealed and holden for none and that the blood of none of them be thereof defiled nor corrupted but by the Authority of the said Parliament clearly declared for ever and that all Indictments in times coming 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 VVestm Nov 6 in the 29. of his râ—igne against his mind by him not agreed shall be taken and put in oblivion out of remembrance undone voided aâ—ulled 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 we are to examine who hath trod in the steps of Iack Cade you and the present prevailing party of both Houses tooke upon them and do take all the Royall power in all things so did Iack Cade as appeares by the said Act the Army do not so They who imprison the King purpose to destroy his person our imprisoned Kings aswaies * Edward 1. Henry 6 Richard 2. fared so Iack Cade did likewise so purpose The said party in the two Houses made a stirring under colour of Instice for reformation of the Lawes so did Iac Cade The Army do not so but desire that the Lawes should be observed lack Cade levied war against the King The Army preserves Him Iack Cade dyed a Declared Traitor to his Soveraign Lord the King this army might have lived to have the glorious true Honor of being restorers of their King Simon Sudbury Archbishop of Canterbury was murthered by Jack Straw 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 for that an Ordinance hy Law cannot take away any mans life and his life was taken away by an Ordinance of the two Houses the army had no hand in it Many misted by Iack Straw 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 so endeavour to settle the Kingdome again in the just Lawes and Liberties thereof London did then right worthily adhere to the King and the Laws and not to Jack Straw and his specious pretences and it is hoped they will now so do 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 resolved thus The Arreares of the Army howbeit it is the least thing they look 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 You say the Houses will reforme all things when the Army doth disband Fitz. N B 159 9 Ed. 4 20.38 H. 6 27 23 Eliz. Dier 369. Who will believe it Will any beleive that the setling of the Presbytery will do it Will any believe that his Majesty will passe the propositions sent to Him to Newcastle Will any man believe that this Kingdome will ever be 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 seen some of their fellowes hanged before their eyes for actions done as Soldiers Shall the Kingdom have no acount of the many Millions received of the publique Money Will the Members of the Houses accuse themselves Shall private and publique Debts be never paid Shall the Kingdome lie ever under burthens of oppression and Tyranny There is no visible way to remedy all these Enormities but the power of the Army To the V. wich is solved thus The Kingdom hath better assurance of Reformation from the Army than from the Houses for that in their Military way they have been just faithfull and honourable they have kept their words That party of the Houses have been constant to nothing but in dividing the publique Treasure among themselves
non licet testari this Pubertas begins at 14. it is Plena pubertas at 18 yeares of age The question is whether this jus testandi is in pubertate plena or pubertate inceptâ Pigots Case 5. part of Cookes Reports the Doctors affirmed that 17 years of age was a full age as to an infant Executor to dispose of Goods this opinion hath been by others sithence denyed Sir Edward Cook 11 part Inst sect 123. saith He must be 10. which is the time of plena pubertas 2. Hen. 4.12 an infant of 18. years of age may be a deisseissour Sir Jo. Doderigge in his booke called The Office and Duty of Executors which they say is his and it is a learned and laborious Treatise fol. 347. delivers that this opinion of 17. yeares for that ability in an infant hath been reported otherwise This latter opinion comes nearer the Common Law and the Statute Law of the Land which Common Law and Statue Law gives infants no power by Deed or Will to make any disposition of any thing they have before they be 21 yeares of of age It seems also more reasonable because infants at 18 yeares have by the intendment of Law as they grow in yeares more use of reason to discern what is fit for them to doe and act And for a meere stranger to sue in a Court of Conscience who pretends by such Wills of infants the infant Husband being ravished against the will of the Kindred of the deceased who dyed six yeares sithence without issue being 17 yeares of age and that any part of his part of his estate should go that way by a course of Equity unlesse the Law be for Mr. Erneley who heyd not a penny with his Daughter and who would have the Husband of his daughter bring him a portion by his pretended title of an Executor of an Executor of an Execueor viz. of an infant the Executor of another infant the Executor of a third person seems very strange The said Licensed Historiographer of theirs hath published the 16 of this present Moneth of February 1647. that I out of a desire to keep the Estate have in a suite in the Court of wards in my Cousins life time pleaded to the Iurisdiction of that Court. It is true I did so for I conceived that the Estate would be unsafe in Mr. Ernley's hands and I was willing to preserve it titl my young Cousin came to be of age to dispose of it himselfe according as I was trusted The Law being 32. H. 8. c. 46.4 pars inst fol. 201.202 that the Court of Wards had no jurisdiction over the personall estate for then the Marriage was paid for to the King and all due to the King ascertained It is true that that was insisted upon as was just for to preserve the Estate from Mr. Erneley who would have made what account he pleased to my Cousin at his full age And this is the truth of that businesse That I declined not the Jurisdiction of the Chancery to keepe an Estate in my hand appeares by my declining long sithence the power of the House of Commons to examine me and the Reformers have all my Estate What would Mr. Ernley have when they the Reformers have all already or can have from me if he had any colour J desire the good people of this City to observe what notorious Vntruths their Licensed Historigraphers publish to delude the people In this particular case they publish First That the Suit against me is in the behalfe of an Orphan M. Earnely who is Plaintiffe in their Court is a Wiltshire Gentleman at the least of 50. years of age there is their Orphan Secondly That I made a speech to the people at the Hall door that the questioning of me for what I had done for the KING was illegall and that the Iudges had no power to tâ—y me the KING being absent Another notorious untruth For I protest to God all that I said was onely this God preserve the KING and the Lawes Thirdly it is said that comming to the Barre I stirred not my Hat All the Lawyers then at the Barre were uncovered wherefore I held it a civility to be also uncovered and so I was as they all know Fourthly That the E. of Manchester should say I received a great estate in money of the Orphans estate As there is no truth in it so it is most untrue that the said Lord so said as all men present can testifie The truth is they care not what they do what they say what they swear nor what they write Witnes the Declaration of a prevailing party of the H. of CoÌ„mons of the 11 of this instant February who contrary to the Oath of Allegiance the Oath of Supremacy the Protestation their solmne League and Covenant their Declarations to make His Majesty a glorious King fearfull to his enemies and beloved of his Subjects and yet now after 22. yeares they would insinuate to the people that this King whom they have so much magnified hath poysoned his own Father Fiftly it is a publike notorious untruth That the Parliament hath published a Declaration against the King of the 11. of this instant Feb. whereas it is well known to be the Declaration of the prevailing party of the House of Commons only without the Lords and so they would make that prevailing partie only to be the * Their licensed Historiographer who published this is called their Kingdoms weekly post from Wednesday Feb. 7 to Wednesday the 16 of Feb. 1647 Par. liament Let the people of England beleeve their five sences how it was with them seven yeares agoe and before during his Majesties Reign how this Kingdom abounded then with Peace Plenty and Glory to the admiration envy of other Nations now let them consider and judge by their Senses sithence those men whom nothing would satisfie but all Power both by Sea and Land which in truth is the regality kingship which they call the Militia have usurped the said Power Regal whether they have not by Impostures and Delusions diffused among the people by themselves and their Agents brought a flourishing Kingdom to the most deplorable condition it now is in To the end that this Kingdome may not utterly be ruined God incline their hearts to restore his Majesty and for their own and their Posterities sake to receive from his Majesty an Act of Oblivion a generall Pardon assurance for the Arrears of the Souldierie and meet satisfaction for tender Consciences DAVID JENKINS Iudge Ienkin's Remonstrance TO THE LORDS AND COMMONS OF The two HOVSES of PARLIAMENT at WESTMINSTER the 21. of February 1647. By DAVID JENKINS Prisoner in Newgate Printed in the Yeare 1648. Judge Jenkin's REMONSTRANCE TO THE LORDS and COMMONS AT WESTMINSTER I Desire that the Lords and Commons of the two Houses would be pleased to remember and that all the good people of England do take notice of an Order of the House of Commons this
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