England and having many adherents And that Statute to that end affirmes no such power in the two Houses which is the question but in Queene Elizabeth and the two Houses which makes against the pretence of this time Master Prynne fol. 104 of his booke intituled the Parliaments supreme power c. Objecting the Statute of the first of Queens Elizabeth and his owne Oath that the King is the onely supreame Goverhour of this Realme Answers The Parliament is the supreme power and the King supreme Governour And yet there he allowes him a Negaâ—ive Voyce and fol. 107. confesseth that Acts of Parliament translated the Crowne from the right Heires at Common-Law to others who had no good Title then the Parlimentary Title makes not the King so powerfull in truth that it escapes from a man unawares To make a distinction betweene supreame Governour and supreame power is very strange for who can governe without power The King assembles the Parliament by his Writ adjournes Vide Speep 645.4 par Instit 27. 2. prorogues and dissolves the Parliament by the Law at his pleasure as is evident by constant practise the House of Commons never sate after an adjournement of the Parliament by the Kings Command Where is the supreame power The King by his Oath is bound to deny no man right 18 Ob. much lesse the Parliament to agree to all just and necessary Lawes proposed by them to the King This is the substance of the discourse against the Kings Negative Voyce The King is so hound as is set downe in the Objection Sol. but who shall judge whether the Bill proposed be just and necessary For all that they do propose are so pretended and carried in either House sometimes by one or two Voyces or some sew as aforesaid and certainly it hath been shewen the King his Counsell of State his Judges Sergeants Attorney Sollicitor and twelve Masters of the Chancery can better judge of them then two or three or few more Mr. Prynne fol. 45. In his Booke of the Parliaments interest to nominate Prnvy Councellors calleth the opinion of the Spencers to divide the Person of the King from his Crowne Calvins case 7 pars fol. â—1 a stringe opinion and cites Calvins Case but leaves out the conclusions therein mentioned fol. 11. Master Prynne saith there But let this opinion be what it will without the Kings Grace and Pardon it will goe very farre and two Acts of Parliament there mentioned are beyond an opinion And in his Book of the opening of the Great Seale fol. 17. The Parliament hath no jurisdiction to use the Grear Seale for Pardons Generall or Particular Where is the supreme power then Mr. 19. Ob. Prynnes opening of the Seale pag. 19. saith the Noblemen and State the day after the Funerall of King Henry the third King Edward the first his Sonne being in the Holy Land made a new Great Seale and Keepers of the same And in Henry the sixts time in the first yeare of his Reigne the like was done in Parliament A facto all jus Sol. is no good Argument for than in Edward the firsts time it was no Parliament for King Henry the third was dead which dissolyed the Parliament if called in his time and it could be no Parliament of Edward the firsts time for no Writ issued to summon a Parliament in his Name nor could issue but under that New Seale it was so suddainely done afterâ— Henry the thirds death King Edward the first being then in the Holy Land it was the first yeare of his Reigne and no Parliament was held that yeare nor the second yeare of his Reigne The first Parliament that was in his Reigne was in the third yeare of his Reigne as appeares by the printed Acts Also the making of that Seale was by some Lords then present What hand had the Commons in it Concerning the Seale made in Henry the sixths time the Protector was vice-Roy according to the course of Law and so the making of that Seale was by the Protector in the Kings name and that Protector Humphrey Duke of Gloucester as Protectour in the Kings Name summoned that Parliament and was Protector made by the Lords and not in Parliament as appeareth plainely for that Parliament was in the first of Henry the sixth and the first holden in his time and power given by Commission to the said Duke then Protector to summon that Parliament Prynne ibid. fol. 19. But the new counterfeit Seale was made when the King was at Oxford in his owne Kingdome and not in the holy Land Mr. 20 Ob. Prynne in his Booke of the two Houses power to impose Taxes restraines Malignants against any Habeaâ— Corpus c. saith that the Parliament is above Magna Charta and fol. 15. ibid. The Parliament hath power over Magna Charta to repeale the same when there is cause This Argument supposeth that they have the Kings power Sol. which hath appeared formerly they have not But suppose they had Magna Charta containes many Morall Lawes which by the Law of the Land a Parliament cannot alter 21 H. 7.2 D. and Student 2 Dialogue For example it saith cap. 11. Justice shall not be sold delayed nor denyed to any man but by this Argument the Parliament may make Law to delay deny and to sell Justice which surely is a very ill position to maintaine What they would have doth now by the Propositions sent to Newcastie to his Majesty appeare whereby they would have him divest himselfe and settle in them all his Kingly power by Sea and Land and of themselves to have power without him to lay upon the people of this Land what taxes they thinke meet to abolish the Common prayer-booke to abolish Episcopacie and to introduce a Church Government not yet agreed but such as they shall agree on His Majesty finding a prevailing party in both Houses to steere this course and being chased away with Tumults from London leaves the Houses for these Reasons viz. First because to alter the Government for Religion is against the Kings Oath Secondly against their Oaths For every of them hath sworne in this Parliament That His Majesty is the onely supreme Governour in all Causes Ecclesiasticall and over all persons Thirdly this course is against Magna Charta the 1. Chap. and the last Salve sint Episcopis omnes liber tales sue Confirmed by thirty two Acts of Parliament and in the two and fortieth of Edward the third the first Chapter enacts if any Statute be made to the contrary it shall be holden for none and so it is for judgements at Law in the 25 of Edward the 1. chap. 1.2 The great Charter is declared to be the Common Law of the Land Fourthly they endeavout to take away by their Propositions the Government of Bishops which is as ancient as Christianity in this Land and the Books of Common prayet settled by five Acts of Parliament and compiled by
6. time was there ever Fine by the House of Commons estreated into the Exchequer For murder or Felony they can imprison no man much lesse for Treason that House which cannot do the lesse cannot doe the greater It is ordained 25. â— 3. c. 4. 3. Car. Petition of Right that no man shall be imprisoned or put out of his Franchise by the King or his Councell but upon indictment or presentment of his good and lawfull Neighbours where the deed is done or by originall Writ at the Common Law and so is Lex terrae the Law of the Land mentioned in Magna Charta cap. 29. expounded and the said Magna Charta and Charta de Forresta are declared by the Statute of 25. E. 1. c. 1. to bee the Common Law of the Land All Judges and Commissioners are to proceed Secundum legem consuetudinem Regni Angliae as appeares by all proceedings in all Courts and by all Commissions and therefore the house of Commons by themselves proceeding not by Indictment Presentment or Originall Writ have no power to imprison men or put them out of Franchise This no way trenches upon the Parliament 4 pars instit p. 1. 3 pars instit p. 23. for it is in Law no Parliament without King and both Houses I have onely in my Paper delivered to Mr. Corbet 12. H. 7.20 Princes case 8 Pars Cook 1 pars instit p. 159. 14 H. 8.3 Dier 3â— H. 8.60 applyed my selfe to that Committee that had not power to examine mee but I never thought said or wrote that the Parliament had no power to examine me The Law and custome of this Land is that a Parliament hath power over my life liberty lands and goods and over every other Subject but the House of Commons of it selfe hath no such power For the Lord Cookes relation 1 pars inst 19. b. that the House of Commons have imposed Fines and imprisoned men in Queen Elizabeths time and since Few facts of late time never questioned make no power nor Court à facto ad jus is no good argument for the words of the Statute of 6. Hâ—n 8. c. 16. that a licence to depart from the House of Commons for any Member thereof 4 P. Inst c. Parl. is to be entred of Record into the Booke of the Cleark of the Parliament appointed Hobbarts reports fol. 152. or to be appointed for that House doth not conclude that the House of Commons is a Court of Records For first that Law of 6. H. 8. c. 26. handles no such question as that whether the House of commons be a court it is a maxime in all Lawes Hobbarts reports fol. 154. Leâ— aliâ—d tractâ—us nil probat the word Record there mentioned is onely a memoriall of what was done and entred in a book A plaint removed out of the County-Court to the Court of the common-Pleas hath these words in the Writ of remove Recordari facias loquelam Fitz. Nat. Br. 70. Fitz. Nat. Br. 13. 12 H. 4.33 34 H. 6.49 c. and yet the county court is no court of Record and so for ancient Demesne in a Writ of false judgement the words are Recordari facias loquelam c. and yet the court of ancient Demesne is no court of Record and so of a court Baron the Law and custome of England must bee preserved or England will bee destroyed and have neither Law nor custome Let any man shew mee that the court of Lords or the House of commons in any age hath made any man a Delinquent Rege dissentiente the KING contradicting it under his Great Seale Miâ—hell and others of late were condemned by the prosecution of the House of commons in King Iames his time did King Iames ever contradict it And so in ancient times where the House of Peeres condemned the Lord Latimer in 50 E. 3. 4 Pars Inst Tit. Parlia p. 23. The Kings pardon freed him which shewes clearly that the Kings expresse or implied assent must of necessitie be had to make a Delinquent The execution of the sentence is in the Kings name The Gentl. saith That the Parliament sits or ought to sit by something greater than the Kings Writ c. No Parliament did ever sit without the Kings Writ 4. Pars inst p. 4. 6. nor could ever Parliament begin without the Kings presence in person or by a Guardian of England by patent under the Kings Great Seal the King being in remotis or by Commission under the Great Seal to certain Lords representing the Kings person and it hath been thus in all Ages unto this Session of Parliament wherein his Majestie hath been pressed and hath passed two Acts of parliament one for a Triennial parliament and another for a perpetual if the Houses please to satisfie their desires how these two Acts agree one with another 4 H. 3. c. 14. 36. H. 3. c. 10. 21. Iac. the Act of Limitation of Actions c. 22. and with the Statute in Edâ— the Thirds time where parliaments are ordained to be holden every year and what mischiefes to the people of this Land such length of Parliaments will produce by protections and priviledges to free them and their menial servants from all debts during their lives if they please to continue it so long and how destructive to mens actions against them by reason of the Statute of Limitations which confines their actions to certain yeares and many other inconveniences of greater importance is easie to understand How can any man affirme that the two Houses of Parliament do act now by the Kings Writ which relates to counsel and treatie with the King 4. p. inst p. 14. Vow any Covenant p. 11. concerning the King the defence of his Kingdom and of the Church of England these are three points which it tends to as appeares by the Writ They keep their King prisoner at Holmby and will not suffer him to consult and treat with them They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent and to the same effect have devised the Oath which they call the Negative Oath Is this to defend the Kings Kingdom or their kingdom When by their solemne League and Covenant they extirpate Bishops Deanes and Chapters root branch Is this to defend the Church of England 3. pars Cook Dean and Chapter of Norwich that Church must necessarily be meant that was the Church of England when the said Writ bore test they were not summoned to defend a Church that was not in being to destroy and defend the Church are very contrary things the Church is not defended when they take away and sell the Lands of the Church The Gentleman saith The King cannot controul other Courts of Justice or prevent them from sitting or acting and therefore not the two Houses c. 14 H. 8.3 36. H. â— Dier
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
Commissioners to tax men secundum faculâ—ates and so make all mens estates Arbitrary the answer is that in lâ—vying of publicke aydes upon mens goods and estates which are variable and probably cannot be certainly knowne by any but the owners it is impossible to avoyd discretion in the assesments for so it ever was and ever will bee By this appeares that the Votes of the two Houses against the Commission of Array were against the Law The death of the King dissolves the Parliament H. 9. if Kings should referre to the politick capacity it would continue after his death 2 H. 5 â— parâ— instit â—6 4 pars Iust 46 which proves that the King cannot be said to be there whâ—â— he is absent as now he is there is no inter regnum in the Kingdome the dissolution of the Parliament by hiâ— death shewes that the beginning and end thereof referrs to the naturall person of the King and therefore he may lawfully refuse the Propositions 2. H. 5 Chap. 6. to the King onely it belongs to make Leagues with Forraigne Princes this shewes where the supreame power is and to whom the Militia belongs 8. H. 6. numb 57. Rott Parl. Cooks 4 pars instit 25. H. 6. No priviledge of Parliament is grantable for treason felony or breach of the peace if not to any one Member not to two not to ten not to the major part 19 H. 6.62 The Law is the inheritance of the King and his people by which they are ruled King and people And the people are by the Law bound to ayd the King and the King hath an inheritance to hold Parliaments and in the ayds granted by the Commonalty If the major part of a Parliament commit treason they must not be Judges of it for no man or body can be Judge in his own cause and aswel as ten or any number may commit treason the greater number may aswell The King by his Letters patents may constitute a County palatine and grant Regall rights 32 H. 6.13 Plowd 334. this shewes where the supreame power is 17. Ed. 4. Rot. Parl. numb 39. Ed. 4. No priviledge of Parliament is grantable for treason fellony or breach of the peace if not for one not for two or more or a major part The same persons must not bee Judge and party Calvins Case 7. pars fol. 11 12. A corporate body can commit no treason nor can treason be committed against a corporate body 21. E. 4.13 and 14. but the persons of the men who make that body may commit treason and commit it against the naturall person of him who to some purposes is a body corporate but quatenus corporate no treason can bee committed by or against such a body that body hath no soule no life and subsists onely by the fiction of the Law and for that reason the Law doth conclude as aforesaid Plow com 213. therefore the Statue of 25. E. 3. must bee intended of the Kings naturall person conjoyned with the politique which are inseparable and the Kings naturall person being at Holmby his politique is there also and not at Westminster for the politique and naturall make one body indivisible If all the people of England should breake the league made with a forraigne Prince 19 Ed. 4.46 22 Rd. 4. Fitz. jurisdiction â—â—st plaeite without the Kings consent the league holds is not broken and therefore the representative body is inferiour to his Majesties The King may erect a Court of Common pleas in what part of the Kingdome he pleaseth by his letters patents can the two Houses do the like 1 Ed. 5. fol. 2 It cannot be said that the King doth wrong 1 Ed. 5. 4 Ed. 4.25 5 Ed. 4 29. declared by all the Judges and Serjeants at Law then there The reason is nothing can be done in this Common wealth by the Kings grant or any other act of his as to the Subjects persons goods Lands or liberties but must be according to established Lawes which the Judges are sworne to observe and deliver betweene the King and his people impartially to rich and poore high and low 2 Pars instit 158. and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Lawes be violated and no reflection to be made on the King All Counsellors and Judges for a yeere and three moneths untill the tumults began this Parliament were all left to the ordinary cause of Justice what hath been done sithence is notorious For great Causes and considerations an Act of Parliament was made for the surety of the said Kings person R. 3. 1 R. 3. cap. 15. if a Parliament were so tender of King Rich. the 3. the Houses have greater reason to care for the preservation of his Majesty The Subjects are bound by their allegiance to serve the King for the time being Hâ—n 7. 11 H. 7. c. 1. against every Rebellion power and might reared against him within this Land that it is against all Lawes reason and good conscience if the King should happen to be vanquished that for the said deed and true duty and allegiance they should suffer in any thing it is ordained they should not and all Acts of processe of Law hereafter to be made to the contrary are to be void This Law is to be understood of the naturall Person of the King for his politick capacity cannot be vanquished nor war reared against it Relapsers are to have no benefit of this Act. It is no Statute â—â— H. 7.20 4 H. 7.18 Henry 8. 7 H. 7.14 if the King assent not to it and he may disassent this proves the negative voice The King hath full power in all causes to do justice to all men 24 H. 8. c. 12. 25 H. 8. c. 28 this is affirmed of the King and not of the two Houses The Commons in Parliament acknowledge no superiour to the King under God the House of Commons confesse the King to be above the representative body of the Realm Of good right and equity the whole and sole power of pardoning treasons fellonies c. 27 H. 8. c. 2â— Note belong to the King as also to make all Justices of Oyer and Terminer Judges Justices of the peace c. This Law condemns the practice of both Houses at this time The Kings Royall Assent to any Act of Parliament signed with his hand expressed in his Letters patents under the great Seale and declared to the Lords and Commons shall be as effectuall 33 H. 8. cap. 21. as if he assented in his owne person a vaine Act if the King be virtually in the Houses The King is the head of the Parliament the Lords the principal members of the body Dier 38. H. 8. fo 59.60 the Commons the inferiour members and so the body is composed therefore there is no more Parliament without a King then there is a body without a head There is
will not come to them and yet the King desires to come but they wil not suffer him but keepe him prisoner at Holmby so well doe their Actions and Oathes agree 5. They sweare now King Charies is their only and supreame Governor but with a resolution at the time of the Oath taking and before and after that he shall not be only or supreame Governour or only and supreame but not any Governour at all For there is no point of Government but for some yeares past they have taken to themselves and used his name only to abuse and deceive the people 6. That this virtuall power is a meere fiction their Propositions sent to Oxford to Neweastle to be signed by the King doe prove it so What needs this adoe if they have the virtuall Power with them at Wistminster 7. To affirme that the Kings power which is the vertue they talke of is separable from his person is High Treason by the Law of the Land which is so declared by that learned man of the Law Sir Edward Cocke so much magnified by this present Parliament who in the 7 part of his Reports in Calving case fol. 11 saith thus In the reigne of Edward the second the Supencers the Father and Sonne to cover the Treason hat hed in their hearts invented this damnable and damned opinion that homage and Oath of Legeance was more by reason of the I Kings Crowne that is of his potitick capacity theu by reason of ohe person of the King upon which â—â—inion they inferred three execraâ—le and detestable consequences h. If the King to not demeaue himselfe by reason in the right of his Crowne his Lieges are bound â—y Oath to remove the King 2 seeing that the King â—ould not be retormed by â—nte of Law that ought so be dene per aspertes that is by orce 3. That his Lieges be beund to governe in â—yde of him and in default of him all which wâ—re condemned by two Parliaments one in the raigue of Edw. 2. called exilium Hugonis le Spencer and the other in anno 1. Edw 3 cap. 2. And that the naturall body and politick maks one indivisible body that these two bodies incorporate in one person make one body and not divers is resolved as the Law of Eng. 4 Ed 3 Ploydon Com. fol. 213 by Sir Co bet Catlin L. Chiefe Justice of Eng. Sir Iâ—mes Dâ—er L. Chief Justice of the Common pleas the L. Sanders L. Chief Baron of the Excheâ—ner by the rest of the Judges viz. Justice Restall Justice Browne Justice Corbet Justice weston Baron Frevylâ— Carus and Powâ—rel Sergeant to the Queene Gerrard Auturny Generall Carell Atturney of the Dutchy Pâ—owdon the learnedest man of that age in the knowledge of the Law and Customes of the Realme 8. The Law in all ages without any controversie is and hath been that no Act of Parliament bindes the Subjects of the Land without the assent of the King â— Hâ—â— 3 Mogn Charta So in every Age till this dâ—y and in every Kings time as appeares by the Acts in Print 1 part of the Iustit Sect. 234. 〈◊〉 fine where many of the Law-Bookes are â—iied 7 Hen. 7.14.12 of Hen. 7.20 either for Person Lauds Goods or Fame No man can shew any sillable letter or line to the contrary in the bookes of the Law or printed Acts of Parliament in any age in this Land If the virtuall power be in the Houses there needs no assent of the Kings The stiles of the Acts printed from 9 Hen. 3. to 1 Hen. 7. were either The King ordaines at his Parliament c. or the King ordaineth by the advâ—ee of his Prelates and Barâ—â—rs and at the humble Petition of the Commons c. In Hen. 7. his time the Stile altered and hath fithence continued thus It is oâ—dained by the Kings Majesty and the Lords spirituall and temporall and Commons in this present Parliament assembled So that alwayes the Assent of the King giveth the life to all as the soule to the body and therefore our Law bookes call the King the Fountaine of Justice and the life of the Law 9. 2 Han. 4 Cap 22 4 pars instit 42. Mr. â—â—in in his Treatise of the great Seal fol. 17.27 Hen. 8 Chap. 24. Mercy as well as Justice belongs by the Law of the Land onely to the King This is confessed by Mr. Pryn and it is so without any question The King can onely pardon and never more cause to have sufficient pardons then in such troublesome times as these and God send us pardons and peace None can give any pardon but the King by the Law of the Land The whole and sole power of pardoning Treasons and Felonies belongs to the King are the words of the Law and it is a delusion to take it from any other and utterly invalid 27. Hen. 8. c. 24. 10. Queene Elizabeth summoned her first Parliament to bee held the 23. of Jan. in the first yeare of her Majesties Raigne The Lords and commons assembled by force of the same Writ the 21 day the Queen fell sick and could not appeare in her person in Parliament that day and therefore prorogued it untill the 25 of the same Month of January Resolved by all the Judges of England that the Parliament began not the day of the returne of the Writ 3 of Eliz. Dier 2â—3 viz. the 23. of January when the Lords and Commons appeared but the 25 of the said Moneth when the Queene came in person which sheweth evidently that this virtuall presence is a meere deluding fiction that hath no ground in Law reason or sence They have the King now a prisoner at Holmby with guards upon him and yet they governe by the virtuall power of their prisoner These are some few of the causes and reasons which moved me to deliver that paper to Mr. Corbet which I am ready to justifie with my life and should hold it a great honour to dye for the honourable and holy Lawes of the Land that which will save this Land from destruction is an Act of Oblivion and his Majesties gracious generall pardon the Souldiers their Arrears and euery man his own and truth and Peace established in the Land and a favourable regard had to the satisfaction of tender Consciences April 29. 1547. David Ienkins THE ARMIES INDEMNITY WITH ADDITION Together with a DECLARATION SHEWING How every Subject of ENGLAND ought to be tried for Treasons Felonies and all other Capital Crimes as is set down in the Lawes of the LAND By DAVID IENKINS now Prisoner in the Tower of London Printed in the Yeare 1648. The Armies Imdemnity c. UPon the publishing of the Ordinance of the 22 of May last for the Indemnity of the Army certaine Gentlemen well affected to the peace of the Kingdome and safety of the Army desired mee to set down in writing whether by the Law of the Land the said Ordinance did secure them from danger as to
instit 110. 4 pars p. 49. that is the sence of the word Parler in the French Tongue The Writ whereby the two Houses are assembled which is called the Writ of Summons of Parliament at all times and at this Parliament used and which is the warrant ground and foundation of their meeting is for the Lords of the House of Peeres the Iudges and Kings Counsell to consult and treate with the King that is the Parler of great concernments touching 〈◊〉 the King secondly the defence of his Kingdome thirdly the defence of the Church of England It cannot be a Parliament that will not parle with their King but keepe him in prison and not suffer him to come to them and parle and therefore the Law and sense and reason informing every man that is no manner of parliament the King with whom they should parle being so restrained that they will not parle with him the army hath no manner of security by this Ordinance for their indemnification refers to that which is not in being untill the King be at Liberty 7. It is more than probable that their Iudges before the last Circuite had instructions to the effect of this Ordinance The Common souldiers second Apology 6. Grievances of the Army published 15. May last Three grievances of Col. Riches Regiment but they the Iudges making conscience of their Oath layd aside the said instructions and ought and may and it is believed will no more regard this Ordinance than the said instructions What was done in the last circuit the army well knowes touching many of their fellow Souldiers 8. The Hâ—uses in their first proposition to his Majesty for a safe and well-grounded peace sent to Newcastle to desire a pardon from his Majesty for themselves they who desire a pardon cannot granr a pardon comoÌ„n reason dictates this to every man and therefore that the army should accept an indemnity for them who seek it for themselves or should conceive it of any manner of force is a fancy so that no man in the whole army but may apprehend that it is vain and a meer delusion 9. His Majesty by his gracious message of the 12 of May last hath offered an Act of Oblivion and a generall pardon to all his people this done the Law doth indemnifie the Army without all manner of scruple for any thing that hath been done for it is an Act of Parl. when the King two houses concur and bindes all men I here is no safety by the Ordinance there is safety by an Act of Parliament and will not reasonable men preferre that which is safe before that which is unsafe 10. His Majesty by his said Letter agrees to pay the arrears of the army J am sure that it is a publick debt and the chiefest and the first that by the two Houses should be paid and before any dividend or gratuities bestowed among themselves for their blood limbs and lives have put and kept the both Houses at rest in the power they have So by this concurrence of his Majesty for your indemnity and for your arreares the Army have not an Ordinance or the Publick Faith but the Law of the Land to make sure unto them their indemnity for all acts and for their arrears and therewith also bring peace to the Land 11. The Kingdom and people generally desire these things To such an army just and reasonable things must not be denyed the things formerly proposed are most just and reasonable you may have them if you will if you will not you render this Kingdom miserable wherein you will have your share of miseries the head and the body are such an incorporation as cannot be disolved without the destruction of both The additionall Ordinance of both Houses passed the 5. of Iune instant for the fuller indemnity of the Army makes nothing at all to the matter 1. For that it extends not to Felony Homicide Burglary Robbery or any other cappitall crime which is the main businesse insisted upon and most concerneth the Souldiers security 12. The both Houses in the said additional Ordinance say Mr. Pyms Speech against tho Earl of Strafford p. 16. Six considerations printed by the command of the House of Commons that it is expedient that all offences be pardoned and put in oblivion pardon and oblivion cannot be understood to be for a time but for ever and they themselves confess that an Ordinance is not binding but pro tempore which with the most advantagious interpretation can be but a reprive or delay of the execution of the Law and therefore that cannot pardon or put in oblivion by their own shewing But the Law of the Land is and so it hath constantly been practised in all times that no persons of what estate soever 27 H. 8. c. 24. have any power to pardon treason felony or any other offences but the King only who hath the sole and whole power to pardon all such crimes whatsoever And in the same manner an Ordinance is of no authority at all to take away the right of private mens actions by any evidence it can give in truth all the evidence that this Ordinance gives is that it records to posterity nothing but a lawlesse and distempered time For remedy thereof I say again it is a certaine truth this Kingdom without an act of Oblivion and a general pardon and the payment of Souldiers-arrears and a meet regard had to tender consciences will unavoydably be ruined Iune 10. 1647. DAVID IENKINS Prisoner in the Tower of London Sundry Acts of Parliament mentioned and cited in the Armies Indemnities set forth in words at large for the better satisfaction of such as desire rightly to be informed 25. Edw. Chap. 5. A Declaration what offences shall be adjudged Treason WHereas divers opinions haue béen before this time in what case Treason shall be said and in what not The King at the request of the Lords and of the Commons hath made a Declaration in the manner as hereafter followeth That is to say When a man doth compasse or imagine the death of our Lord the King or of our Lady the Quéen or of the eldest Son and Heire or do violate the Kings companion or the Kings eldest Daughter vnmarried or the Wife of the Kings eldest Son and Heire or if a man do leavy War against the Lord our King in his Realm or be adherent to the Kings enemies in his Realm giuing to them ayd and comfort in the Realm or else-where and thereof be probably attainted of open deed by people of their condition And if a man counterfeit the Kings great or priuy Seal or his Mony and any man bring false mony into this Realm counterfeit to the mony of England and the mony called Lusburgh or other like to the said mony of England c. 11. Hen. 7. Chap. 1. None that shall attend upon the King and do him true service shall be attainted or forfeit any thing THE King our
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.
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