SEVERAL PAPERS Lately Written and Published by JUDGE JENKINS', Prisoner in the Tower: viz. 1. His Vindication. 2. The Army's indemnity: with a Declaration, showing, how every Subject aught to be tried for Treasons, Felonies, and all other Capital Crimes. 3. Lex Terrae. 4. A Cordial for the good people of London. 5. A Discourse touching the inconveniences of a long continued Parliament. 6. An Apology for the Army. ANNO 1647. The Vindication of judge Jenkins, Prisoner in the Tower, the 29. of Apr. 1647. I Was convened upon Saturday the 10. of this month of April before a Committee of the House of Commons, wherein Master Corbet had the Chair; and I was there to be examined upon some questions then to be propounded to me; to which questions I refused to give any other answer than that which was set down in a paper I then delivered to the said M. Corbet, which followeth in these words: Gentlemen, I stand committed by the House of Commons for High Treason, for not acknowledging, nor obeying the power of the Two Houses, by adhering to the King in this War. I deny this to be Treason, for the supreme and only power, by the Laws of this Land, is in the King. If I should submit to any examination derived from your Power, which by the Negative Oath stands in opposition to the King's Power, I should confess the Power to be in you, and so condemn myself for a Traitor, which I neither ought nor will do. I am sworn to obey the King, and the Laws of this Land: you have not power to examine me by those Laws, by the King's Writ, Patent, or Commission; if you can produce either thereof, I will answer the questions you shall propound; otherwise I cannot answer thereto, without the breach of my Oath, and the violation of the Laws, which I will not do to save my life. You yourselves, all of you this Parliament, have sworn that the King is our only and supreme Governor: your Protestation, your Vow and Covenant, your solemn League and Covenant, your Declarations, all of them publish to the Kingdom, that your scope is the maintenance of the Laws; those Laws are and must be derived to us, and enlivened by the only supreme Governor, the Fountain of justice, and the life of the Law, the King. The Parliaments are called by his writs; the Judges sit by his Patents, so of all other Officers; the Cities and Towns corporate, govern by the King's Charters; and therefore since by the Law I cannot be examined by you, without a power derived by His Majesty, I neither can, nor will, nor ought you to examine me upon any question. But if as private Gentlemen, you shall be pleased to ask me any questions, I shall really and truly answer every such question, as you shall demand. April 10. 1647. David Jenkins. This paper hath been misrepresented to the good people of this City by a Printed one, styling it my Recantation, which I own not; and besides is in itself repugnant (just like these times) the Body falls out with the Head. To vindicate myself from that Recantation, and to publish to the world the reality of the Paper then delivered to M. Corbet, and the matter therein contained, I have published this ensuing discourse. No person who hath committed Treason, Murder, or Felony, hath any assurance at all for so much as one hour of life, Lands or Goods without the King's gracious pardon, 27. Hen. 8. Cap. 24. The King is not virtually in the two Houses at Westminster, whereby they may give any assurance at all to any person, in any thing, for any such offence. 1. The House of Commons hath declared to the Kingdom in their Declarations of the 28. of November last to the Scots Papers, pag. 8. That the King at this time is not in a condition to govern. No person or thing can derive a virtue to other men, or things, which itself hath not: and therefore it is impossible that they should have a virtue from the King to govern, which they declare he hath not himself to give. 2. 5. Elizab. Cap. 1. The Law of the Land is, That no person in any Parliament hath a voice in the House of Commons, but that he stands a person to all intents and purposes as if he had never been elected or returned, if before he sit in the House, he take not his Oath upon the holy Evangelists, that the King's Majesty is the only and supreme Governor over all persons in all Causes. All the Members of the said House have taken it, and at all times as they are returned do take it; otherwise they have no colour to intermeddle with the public Affairs. How doth this Solemn and Legal Oath agree with their said Declaration, That the King is in no condition to govern? By the one it is sworn, He is the only supreme Governor; by the other, that he is not in a condition to govern. 2. The Oath is not, that the K. was, or aught to be, or had been, before he was seduced by ill Council, our only and supreme Governor in all Causes, over all persons; but in the present tense, that he is our only and supreme Governor, at this present, in all Causes and over all persons. So they the same persons swear one thing, and declare to the Kingdom the contrary of the same thing, at the same time, in that which concerneth the weal of all this Nation. 4. The Ministers in the Pulpits do not say, what they swear in the House of Commons. Whoever heard since this unnatural War, any of their Presbyters attribute that to His Majesty which they swear? The reason is, their Oath is taken at Westminster amongst themselves: That which their Ministers pray and preach, goes amongst the people. To tell the people that the King is now their only and supreme Governor in all Causes, is contrary to that the Houses do now practise, and to all they act and maintain. They, the two Houses forsooth, are the only and supreme Governors in default of the King, for that he hath left his great Council and will not come to them, and yet the King desires to come, but they will not suffer him, but keep him prisoner at Holmby: so well do their Actions and Oaths agree. 5. They swear now King CHARLES is their only and supreme Governor; but with a resolution at the time of the Oath taking, and before and after, that he shall not be only or supreme Governor, or only and supreme, but not any Governor at all: For there is no point of Government, but for some years passed they have taken to themselves, and used his name only, to abuse and deceive the people. 6. That this virtual power is a mere fiction, their Propositions sent to Oxford, to Newcastle, to be signed by the King, do prove it so. What needs this ado, if they have the virtual power with them at Westminster? 7. To affirm that the King's power (which is the virtue they talk 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 Coke; so much magnified by this present Parliament; who in the 7. part of his Reports, in Calv. Case, fo. 11. saith thus: In the reign of Edward the second, the Spencers, the Father and Son, to cover the Treason hatched in their hearts, invented this damnable and damned opinion, that Homage and Oath of Ligeance was more by reason of the King's Crown, (that is, of his politic capacity) then by reason of the person of the King: upon which opinion they inferred 3. execrable and detestable consequences. 1. If the King do not demean himself by reason in the right of his Crown, his liege's are bound by Oath to remove the King. 2. seeing that the King could not be reform by suit of Law, that aught to be done per aspertee that is by force. 3. That his liege's be bound to govern in aid of him, and in default of him: All which were condemned by two Parliaments, one in the reign of Edw, 2. called exilium Hugonis le Spencer; and the other in Anno 1. Edw. 3. cap. 2. And that the natural body and politic makes one indivisible body, and that these two bodies incorporate in one person make one body, and not divers, is resolved as the Law of England. 4. Eliz. Ploydon Com. fol. 213. by Sir Cobert Catlin, Lord Chief Justice of England, Sir James Dier, Lord Chief Justice of the Common Pleas, the Lord Sanders, Lord Chief Baron of the Exchequer, and by the rest of the Judges, viz. Justice Rastall, Justice Browne, Justice Corbet, Justice Weston, Baron Frevyll, Conne and Pewdrell, Sergeant Gerrard Attorney General; Carre● Attorney of the Dutch: Plowdon the learnedst man of that age, in the knowledge of the Law, and Customs of the Realm. 8. The Law in all ages without any controversy is and hath been: That no Act of Parliament binds the Subjects of this Land without the assent of the King, either for person, Lands, Goods, or Fame. No man can show any syllable, letter, or line to the contrary in the books of the Law, or printed Acts of Parliament, in any age in this Land. If the virtual Power be in the Houses, there needs no assent of the Kings. The styles of the Acts printed from 9 Hen. 3. to 1. Hen. 7. were either, 9 Hen. 3. Magna Charta. So in every age till this day, and in every King's time, as appears by the Acts in Print. 1 part of the Instit Sect. 234. in fine, where many of the Law-Bookes are cited. 7. H. 7.14.12. of Hen. 7.20. The King ordains at his Parliament, etc. or the King ordaineth by the advice of his Prelates and Barons, and at the humble Petition of the Commons, etc. In Hen. 7. his time the Style altered, and hath since continued thus, It is ordained by the King's Majesty, and the Lords spiritual and temporal, and Commons in this present Parliament assembled. So that always the Assent of the King giveth the life to all, as the soul to the body; and therefore our Law-Bookes call the King the Fountain of Justice, and the life of the Law. 9 2. H. 4. c. 22. 4 pars instit. 42. M. Prin 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 only to the King. This is confessed by Master Prynn, and it is so without any quection: The King can only 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. Cap 24. 10. Queen Elizabeth summoned her first Parliament, to be held the 23. of January, in the first year of Her Majesty's Reign. The Lords and Commons assembled by force of the same writ the 23. day the Queen fell sick and could not appear in her person in Parliament that day, and therefore prorogued it until the 25. of the same Month of January. Resolved by all the Judges of England, 3 Of Eliz. Dier. 203. that the Parliament began not the day of the return of the writ, viz. the 23. of January, when the Lords and Commons appeared, but the 25. of the said month when the Queen came in person: Which showeth evidently that this virtual presence is a mere deluding fiction that hath no ground in Law, reason, or sense. They have the King now a prisoner at Holmby, with guards upon him, and yet they govern by the virtual Power of their Prisoner. These are some of the causes and reasons which moved me to deliver that paper to Master Corbet, which I am ready to justify with my life, and should hold it a great honour to die for the honourable and holy Laws of the Land. That which will save this Land from destruction, is an Act of Oblivion, and His Majesty's gracious general pardon, the Soldiers their Arears, and every man his own, and Truth and Peace established in the Land, and a favourable regard to the satisfaction of tender Consciences. April 29. 1647. David Jenkins. THE ARMY'S INDEMNITY, With Addition; Together, With a Declaration, showing how every Subject of England ought to be tried for Treasons, Felonies, and all other Capital Crimes, as it is set down in the Laws of the LAND. By David Jenkins, now Prisoner in the Tower of LONDON. Printed in the Year, 1647. The Army's Indemnity, etc. UPon the publishing of the Ordinance of the 22. of May last, for the Indemnity of the Army, certain Gentlemen well affected to the peace of the Kingdom, and safety of the Army, desired me to set down in writing, whether by the Law of the Land, the said Ordinance did secure them from danger, as to the matters therein mentioned. For whose satisfaction in a business 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 Army by the Law of the Land is apparent to all men. 25. Ed. 3. c. 11. 2 Ri. 2. cap. 3. 1 Hen. 4. c. 10. 1 and 2. Phil. and Mary. c. 10 It is high Treason by the Law of the Land to levy war against the King, to compass or imagine his death, or the death of his Queen, or of his eldest Son, to counterfeit his Money, or his great Seal; They are the words of the Law. Other Treasons than are specified in that Act, are declared to be no Treasons until the King and his Parliament shall declare otherwise, they are the very words of the Law. 3. Pars instit. Pag. 22. & 2. pars instit. Pag. 47, 48. & 4. pars instit. P. 23.48.29. King and Commons, King and Lords, Commons and Lords, cannot declare any other thing to be Treason, than there is declared: as appears by the Lord Cook in the places cited in the Margin: A Lawbook published by order of the House of Commons this Parliament, 3. Pars instit. cap. Treason Pa. 9, 10, & 12. Mr S. john the Solicitor in his Speech upon the arraignment of the Earl of Straford, Printed by order of the House of Commons. p. 7. 13. as appears in the last leaf of the second part of the Institutes, published likewise by their Order. The Resolutions of all the Judges of England, upon the said Statute of the 25. Ed. 3. (as appears in the said third part of the Institutes, Chap. High-Treason) have been, that to imprison the King until he agree to certain demands is High-Treason; to seize his Ports, Forts, Magazine for War, are High-Treason: to alter the Laws is High-Treason. The word King in the Statute of 25. Ed. 3. cap. 2. must be understood of the King's natural person: for that person can only die, have a wife, have a son, or be imprisoned. The Privilege of Parliament protects no man from treason or felony, 4. Pars instit. c. Parl. p. 25. howbeit he be a Member: much less can they protect others. Those who cannot protect themselves, have no colour to make Ordinances to protect others who are no Members. The Statute of 11. 11. M. 7. cap. 1. Hen. 7. cap. 1. doth by express words free all persons who adhere to the King. The Army by an Act of Indemnity free themselves from all those dangers, Stamford. l. 2. fol. 99 18 Ed. 3. Statutes at large 144. 20 Ed. 3. c. 1. 11. Rye. 2. c. 10. 4 Pars instit. Pag. 23.48.29. which an Ordinance can no more do then repeal all the Laws of the Land, the whole and sole power by Law to pardon all Treasons, Felonies, etc. 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 showed the danger of the Army by the Law of the Land, next consider the Ordinance of the Lords and Commons published the 22. of May last for their Indemnity. By the ensuing discourse it doth appear they have no Indemnity at all thereby. The Indemnity proposed by the Ordinance, is for any Act done by the authority of the Parl. or for the service or benefit thereof: and that the Judges and all other Ministers of Justice shall allow thereof. This Ordinance cannot secure the Army for these reasons: I. Their Judges are sworn to do justice according to the Law of the Land, 3. Pars instit. Pag. 22. 2 Pars instit. 47, 48. 1. Pars instit. 193. Prince's case ●. ●●perte. and therefore the Judges must be forsworn 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. II. All trials for Treasons, Felonies, Robberies, Magna Charta cap. 29. 25. Ed. 3. cap 4. 28. Ed. 3. cap. 3. 37. Ed. 3. cap. 8. 42. Ed. 3 cap. 3. and such like Capital 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 Juryman but understands what the Law is in these cases as well as the best Lawyers: and the Law makes the Jury Judges of the fact, whereby the soldier is left to their mercy whom he hath offended (as some of them have lately had woeful experience, Declaration of the Army presented at Warden, and Printed by the appointment of the Officers subscribed. and thereupon do rightly apprehend their danger) Now no man can think that the Jurors will perjure themselves to acquit the soldiers for robbing and plundering of the Countries, and thereby utterly destroy their own Rights and Properties. III. If the Judges conceive (as they may) that the taking of other men's horses or goods, is not by the Authority of Parliament, or for the service and benefit thereof, the soldier dies for it: they may say to steal or rob any man of his goods is not for the Parliaments service but against it, which was always the sense of the people, and doubtless the Jurors will not think otherwise. iv This Ordinance is restrained to the authority, 4. Pars instit. pag. 1. 3. Pars instit. pag. 22. 1. Pars instit. pag. 1. 28. H. 8. s●l 11. Dier 38. H. 8. sol. 60. 12. H. 7.20. 1. Pars instit. 159. Prince's case 8. reports. service or benefit of the Parliament. The Lords and Commons make no more a Parliament by the Law of the Land then a body without a head makes a man: for a Parliament is a body composed of a King their head; the Lords and Commons the Members. All three together make one body, and that is the Parliament, and none other. And the Judges may, ought, and I believe will according to their Oaths proceed as not bound at all by this Ordinance. For it is restrained to the Authority of Parliament, ●●vice or benefit thereof, whereas the two Houses are not the ●●●liament, but only parts thereof, and by the abuse and misunderstanding of this word Parliament, they have miserably deceived the people. V This Ordinance is against their Ordinances which expressly prohibit plundering, 28 Aug. 1642. Col. of Ord. first part. 565.592.605. several Ordinances. and so there is one Ordinance against another, whereby their Judges have an outlet to proceed on the one or the other, and thereby the Army hath no manner of security. VI The word Parliament is a French word (howbeit such Assemblies were before the Norman Conquest here) & signifies in that Language to consult & treat: 1. Pars iastit. 109. 1 Pars instit. 110. 4 Pars p. 49. that is the sense of the word Parlour 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 Peers, the Judges and King's Council to consult and treat with the King (that is the Parlour) of great concernments, touching 1. the King, secondly, the defence of his Kingdom, thirdly, the defence of the Church of England. It cannot be a Parliament that will not Parley with their King, but keep him in prison, and not suffer him to come to them and parley; and therefore the Law, and sense, and reason, informing every man that is no manner of Parliament (the King with whom they should parley, being so restrained that they will not parley with him) The Army hath no manner of security by this Ordinance: For their indemnification refers to that which is not in being until the King be at liberty. VII. It is more than probable that their Judges before the last circuit had instructions to the effect or this Ordinance: The Common Soldiers sccond Apology. 6. Grievances of the Army published 15. May last. Three grievances of Col. Riche's Regiment. but they the Judges making conscience of their Oath, laid aside the said Instructions, and aught, 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 knows, touching many of their fellow-soldiers. VIII. The Houses in their first Proposition to his Majesty for a safe and well-grounded peace, sent to Neweastle to desire a pardon from his Majesty for themselves: they who desire a pardon, cannot grant a pardon (common reason dictates this to every man) and therefore that the Army should accept an Indemnity from 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 mere delusion. IX. His Majesty by his gracious Message of the 12. of May fast, the 22 of the same, hath offered an Act of Oblivion, and a general pardon to all his people, this done the Law doth indemnify the Army (without all manner of scruple) for any thing that hath been done: for it is an Act of Parliament when the King and two Houses concur, and binds all men. There is no safety by the Ordinance; There is safety by an act of Parliament: And will not reasonable men prefer that which is safe before that which is unsafe? X. His Majesty by his said Letter agrees to pay the Arrears of the Army; I am sure that it is a public 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 Arrears, The Army have not an Ordinance, or the Public 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. XI. The Kingdom and people generally desire these things. To such an Army, just and reasonable things must not be denied; 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; Mr Pyms Speech against the Earl of Strafford. p. 16 sixth consideration Printed by the command of the House of Commons. wherein you will have your shares of miseries: The head and the body are such an incorporation as cannot be dissolved without the destruction of both. The Additional Ordinance of both houses passed the fifth of June 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 capital crime, which is the main business insisted upon, and most concerneth the Soldier's security. II. The both Houses in the said Additionall Ordinance, say, 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 advantageous Interpretation can be but a reprieve or delay of the execution of the Law, and therefore that cannot pardon or put in oblivion by their own showing. But the Law of the Land is, 27. H. 8. c. 24. (and so it hath constantly been practised in all times) that no persons of what estate soever, 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 men's actions, by any evidence it can give: In truth all the evidence that this Ordinance will give is, that it records to posterity nothing but a lawless and distempered time. For remedy therefore I say again, it is a certain truth, This Kingdom without an act of Oblivion, and a general Pardon, and the payment of Soldier's arrears, and a meet regard had to tender Consciences, will unavoidably be ruined. June 10. 1647. David Jenkins, Prisoner in the Tower of London. Sundry Acts of Parliament mentioned and cited in the Army's Indemnities: set forth in words at large for the better satisfaction of such as desire to be rightly informed. 25. Edw. 3. Chap. 2. A Declaration what offences shall be adjudged Treason. Whereas divers opinions have been before this time, in what case Treason shall be said, & in what not: The K. 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 compass, or imagine the death of our Lord the King, or of our Lady the Queen, or of their eldest Son and Heir: or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir: or if a man do levy war against the Lord our King in his Realm, or be adherent to the King's enemies in his Realm, giving to them aid and comfort in the Realm, or elsewhere, and thereof be probably attainted of open deed by people of their condition; And if a man counterfeit the King's great or privy Scale, or his Money: and if a man bring false money into this Realm, sergeant to the money of England, and the money called Lusburgh, or other like to the said money of England, etc. 11. Hen. 7. Cap. 1. None that shall attend upon the King, and do him true service, shall be attainted or forfeit any thing. THe King our Sovereign Lord calling to his remembrance the duty of allegiance of his Subjects of this his Realm, and that they by reason of the same are bound to serve their Prince and Sovereign Lord for the time being in his wars, for the defence of Him and the Land, against every rebellion power and might raised, reared against him, and with him to enter and abide in service in battle, if case so require, and that for the same service what fortune ever fall by chance in the same battle against the mind and will of the Prince (as in this Land sometime passed hath been seen) that it is not reasonable, but against all laws, reason and good conscience, that the said Subjects going with their Sovereign Lord in wars, attending upon him in his person, or being in other places by his commandment within this Land or without any thing should lose or forfeit, for doing their duty or service of Allegiance. It be therefore ordained, enacted, and established by the King our Sovereign Lord, by the advice and assent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by authority of the same, that from henceforth no manner of person or persons whatsoever he or they be, that attend upo● the King and Sovereign Lord of this Land for the time being, in his person, and do him true and faithful service of allegiance in the same, or be in other places by his commandment in his wars, within this Land or without, that for the said deed and true duty of allegiance he or they be in no wise convict or attaint of high treason, nor of other offences for that cause, by act of Parliament, or otherwise by any process of Law, whereby he or any of them shall lose or forfeit life, lands, tenements, rents, possessions, hereditaments, goods, chattels, or any other things, but to be for that deed and service utterly discharged of any vexation, trouble, or loss. And if any act or acts, or other process of the Law hereafter thereupon for the same, happen to be made contrary to this Ordinance, that then that act or acts, or other process of the Law, whatsoever they shall be, stand and be utterly void. Provided always, that no person or persons shall take any benefit or advantage by this Act, which shall hereafter decline from his or their said allegiance. Cap. 24. In the Statute of 27. H. 8. It is enacted, that no person or persons of what estate or degree soever they be of, shall have any power or authority to pardon or remit any treason, murders, manslaughters, or any kind of Felonies, etc. but that the King shall have the sole and whole power and authority thereof united and knit to the Imperial Crown, as of right it appertaineth, etc. And in the same it is enacted further, that none shall have power, of what estate, degree, or condition soever they be, to make Justices of Eyre, Justices of Assize, Justices of the Peace, etc. but all such officers and Ministers shall be made by Letters Patents under the King's great Seal in the name and by the authority of the King and his Heirs and Successors Kings of this Realm. In the first year of Queen Mary, and the first Chapter, It is enacted by the Queen, with the consent of the Lords and Commons, That no deed, or offence, by Act of Parliament made treason, shall be taken, deemed, or adjudged to be high treason, but only such as be declared and expressed to be treason by the Act of Parliament, made 25. Ed. 3. cap. 2. before mentioned. A Declaration of M. David jenkin's, now Prisoner in the Tower of London, one of His Majesty's judges in Wales, for trials of Treasons, Murders, Felonies, and all other capital crimes, that they ought only to be by juries and not otherwise, unless it be by Act of Parliament. THe common Law of this Land is, That every freeman is subject to a trial by bill of Attainder in Parliament, wherein His Majesty and both Houses must necessarily concur, for that trial and attainder is an Act of Parliament to which all men are subject to. a Mag. Chart. cap. 29. 2 part. instit. fol. 28 29.46.48, 49, 50. composed by Sir Ed. Cook and published by the Order of the House of Commons in May 1641. No man shall otherwise be destroyed, &c but by the lawful judgement of his Peers, or by the common Law of the Land. Peers to Noblemen are Noblemen, Peers to the Commons are Knights, Gentlemen, etc. Judgement of Peers refers to Peers, those words, The Law of the Land, refers to the Commons, the Law of the Land is for the trial of the life of a free Commoner, by Indictment, Presentment of good and lawful men where the deed is done, or by Writ original of the common Law, all this is declared in Magna Charta c. 29. and by 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance, they destroy that excellent Act of Magna Charta, and all those other good Laws. Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance, which after the Lords better considering the matter, that they might be acquitted of that sentence; became suitors to the King, that what they had so done in future time might not be drawn into precedent, because that which they had so done was against the Law, b Rot. Par. 1. roll 4. E. 3. Num. 2. part inst page 50. with this 〈◊〉. grease Sir Jo●n Lees case, Rot. Par. 42. E. 3. Num. 22.23. 2. inst. fol. 50. with this agrees the practice and usage of all times in this Land, all the free Commoners of this Kingdom have always been tried and acquitted or condemned in capital causes by Jurers of their equals. An Ordinance bindeth not in Law at all, c See 4. part. inst. fol. 23.48.292. 2. part. inst. f. 47, 48. and but pro tempore, as the two Houses now affirm, a man's life cannot be tried by that which is not binding, and to continue for all times, for a life lost cannot be restored. By an Act of Parliament of the 1. and 2. of Philip and Mary, chap. 10. It is enacted that a●● trials for Treason hereafter to be had, shall be according to the course of the common-law. If the crime charged upon any be treason against the two Houses (against the Parliament it cannot be, for there is no Parliament without the King) that is no Treason in Law, as appears by 25. Ed. 3. chap. 2. 11. R. 2. chap. 3. 1 Hen. 4. cha. 10. 1. and 2. Philip and Mary, chap. 10. 3 part. of the institutes Page 23. An Act of Parliament to make any a Judge where he is party, is a void act, d Dr ●o●ams case 8. part of Cooks reports. for none can be a Judge and party in the same cause, and therefore the House of Peers being a party touching the crime charged upon any man, whom they would try by an Ordinance for Treason against both Houses, cannot be a Judge. By the Petition of Right, e Petition of Right. 3. Car. Regis. if any man deserve death he ought to suffer the same according to the 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 since this unnatural War, are amongst other things sworn and set down to be for the maintenance of the Laws, the people of this land ought to enjoy the benefit of their Birthright 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 tyrannical government. If the Lords have taken one man's life by an Ordinance, they are not bound to take any more, and the case differs in case any appeal be made from a trial by Ordinance to a trial 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 counsel him in peace, f Nevels case 8. part Cooks reports. and defend him in war, his Majesty in Parliament is to consult and treat with the Peers, and with his Counsel at Law, Judges, his Sergeants, Attorney, and Solicitor, and Masters of the Chancery, the Lords and that counsel by the respective Writs of Summons to Parliament are to give Counsel, g 4 Pars instit. fol. 4.9. the House of Commons by their Writ to perform and consent. In the House of Lords, the Court of Parliament only is, for they only examine upon oath, h 1 H. 7. fol. 20. with them, the King in person sits, and by them there erroneous judgements * 14. Ed. 3. c. 5. (upon a Petition to his Majesty for obtaining of a Writ of Error) by the advice of the Judges are reversed, or affirmed, etc. the Lords are to remember that their eminency and grandeur, is preserved by the Laws, if they leave all to will, and dishonour their King, and make nothing of the Laws, they will make nothing of themselves in the end. And therefore, it is well worth your observation what was said by Mr john Pym a Member of the House of Commons in his speech against the Earl of Strafford, in the beginning of the Parliament, which speech is published by the express order of the House of Commons, the words are these. The Law is that which puts a difference betwixt good and evil, betwixt just and unjust, if you take away the Law, all things will fall into a confusion, every man will become a Law unto himself, which in the depraved condition of humane nature must needs produce many great enormities: Lust will become a Law, and Envy will become a Law, Covetousness and Ambition will become Laws, and what dictates, what decisions such Laws will produce, may easily be discerned, i See part. book deel. pag. 140.163. etc. They that love this Commonwealth as things now stand, will use all means to procure an Act of Oblivion, a general pardon from his Majesty, the Soldiers their Arrears, and tender consciences a just and reasonable satisfaction, else we all must perish, first or last. God preserve His Majesty, and the Laws wherein their Lordships and the whole Kingdom are concerned. Mai. 17. 1647. David jenkin's Prisoner in the Tower of London. FINIS. TO THE HONOURABLE Societies of Grayes-Jnne, and of the rest of the Inns of Court, and to all the Professors of the LAW. I Have now spent Forty five years in the Study of the Laws of this Land being my profession, under and by the conduct of which Laws this commonwealth hath flourished for some ages passed in great splendour and happiness (jam seges est ubi Troja fuit) The great & full body of this Kingdom hath of late years fallen into an extreme sickness it is truly said that the cause of the disease being known, the disease is easily cured. There is none of you I hope, but doth hearty wish the recovery of our common parent, our native country (Moribus antiquis stat res Britannica) I call God to witness that this discourse of mine hath no other end then my wishes of the common●g●od: how far I have been from Ambition, my life past, and your own knowledge of me, can abundantly inform you, and many of you well know, that I ever detested the ship 〈◊〉 and monopolies, & that in the beginning of this Parliament, for opposing the excesses of one of the bishops, I lay under three Excommunications and the Examination of seeventy seven Articles in the high Commission Court. His sacred Majesty: (God is my witness) made me a judge in the parts of Wales against my will, and all the means I was able to make; and a patent for my 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 year I served twice as much out of mine own estate in the way of an ordinary and frugal expense. 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 Attournyships of Master 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 seen in that Kind (and I have seen many) were to this effect, That his Majesty would be informed by his Counsel if the suits preferred were agreeable to the Laws, and not inconvenient to his people, before he would pass them. [What could a just and pious Prince do more?] Gentlemen you shall find the Cause and the Curse 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 Laws, this great body recovers: for sake them, it will certainly perish. I have resolved to tender myself a Sacrifice for them as cheerfully, and I hope (by God's assistance) as constantly as old Eleazar did for the holy Laws of his Nation. Your wellwisher DAVID JENKINS. Now Prisoner in the Tower. LEX TERRAE. THE Law of this Land hath three grounds. First Custom. Secondly judicial Records. Thirdly Acts of Parliament. The two latter are but declarations of the Common-Law and Custom of the Realm, touching Royal Government. And this Law of Royall-Government, is a Law-Fundamentall. The Government of this Kingdom by a Royal Sovereign, hath been as ancient as history is, or the memorial of any time; The king's prerogative is a principal part of the common Law. Com: Litt● 344: what power this Sovereignty always had and used in war and peace in this land, is the scope of this discourse; That Usage so practised makes therein a Fundamental Law, and the Common. Law of the Land is common Usage, Pl●wdens Commentaries. 195. For the first of our Kings since the Norman conquest, the first William, second William, Henry the first, Stephen, Henry the second and Richard the first, the Customs of the Realm touching Royal Government, were never questioned: The said Kings enjoyed them in a full measunt. In King john's time the Nobles and Commons of the Realm conceiving that the arcient customs and Rights were violated, and thereupon pressing the said King to allow them in the seventeenth of King john the said Liberties were by King john allowed, and by his son Hen. the third, after in the ninth year of his Reign confirmed, and are called Magna Charta, and Charta de Foresta declared four hundred twenty two years sithhence by the said Charters. Now rests to be considered, after the Subjects had obtained their Rights and Liberties, which w●n● no other than their ancient Customs (and the fundamental Rights of the King as Sovereign are no other.) How the Rights of Sovereignty continued in practice from Henry the thirds time until this present Parliament of the third of November 1640. for before Henry the thirds time, the Sovereignty had a very full Power. Rex habet Potestatem & jurisdictionem super omnes qui in Regnosuo sunt, ea quae sunt jurisdictionis & Pacis ad nullum pertinent nisi ad Regiam dignitatem, ●reacton temps. H. 3. lib. 4. cap. 24. Sect 1 habet etiam coeroionem, ut Delinquentes puniat & coerceat; This proves where the supreme Power is. A Delinquent is he who adheres to the King's Enemies Come Sur. Littl. 261. This shows who are Delinquents. Omnis sub Rege, & ipse sub nullo nisi tuntum Deo, non est inferior sibi Subjectis, Sect 5 Bractabid. non parem habet in Regnosuo. This shows where the supreme power is. Rex non habet superiorem nisi Deum, satis habet ad poenam quod Deum expectat ultorem. Bracton lib. 5. tract 3. de de saltis Cap. 3. Bracton. Lib 3. Cap. 7. This shows where the suprerme power i●. Treasons, Felonies, and other Pleas of the Crown, are propri● causa Regis. This shows the same power. By these passages it doth appear what the Custom was for the power of Sovereignty before that time; the power of the Militia, of coining of Money, of making Leagues with foreign Princes, the power of Pardoning, of making of Officers, etc. All Kings had them, the said Powers have no beginning. Sexto Ed: 1. Comsur. Littl. 85. Liege Homage, every Subject owes to the King (viz) Faith the Member, Ewd. 1. de vita, de terren● Honore, the form of the Oath inter vetera statuta is set down; 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 Realm, that it belongeth to the King and his Royal signory, 7. Ed. 1. statutes at large●●l. 42. straight to defend force of Armour, and all other force against the King's peace, at all times when it shall please him, and to punish them that shall do contrary according to the Law and Usage of the Realm, and hereunto they are bound to aid their Sovereign Lord, at all seasons when need shall be. Here the supreme power in the time of Parliament, by both Houses is declared to belong to the King. At the beginning of every Parliament, all Arms are, or aught to be forbidden to be born in London, 7. Ed. 2.4. pars instit. 14. 1 Ed. 2. de Militibus. Westminster, or the Suburbs. This condemns the multitudes coming to Westminster, and the Guards of armed men. All who held by Knights-service, and had twenty pounds per 〈◊〉, were distraynable ad Arma militaria suscipienda. This agrees with the Records of ancient time, continued cer●●●ntly in all King's times, but at this Parliament 3. November 1640. The King, out of his grace, discharged this duty, which proves that the power of war and preparation thereto, belongs not to the two houses, but only to the King. The two Spencers in Ed. 2. Ed 3. Calvin's Case Cook l. 7. fol. 1 time hatched (to cover their Treason) this damnable and damned opinion (viz.) That Ligeance was more by reason of the King's politic capacity then of his person, upon which they inferred these execrable and detestable consequences. First, if the King demeaned not himself by reason in the right of his Crown, his Liege's are bound by Oath to remove him. Secondly, seeing the King could not be removed by suit of Law it was to be done by force. Thirdly, that his Liege's be bound to govern in default of him. All which tenets were condemned by two Parliaments, the one called exilium Hugonis in Ed. 2. time; the other by 1. Ed. 3. cap. 2. All which Articles against the Spencers are confirmed by this last Statute, the Articles are extant in the book called vetera Statuta. The separation of the King's person from his power, is the principal Article condemned, and yet all these three damnable, detestable, and execrable consequents, are the grounds whereupon this present time relies, and the principles whereupon the two Houses found their Cause, The Villeine of a Lord, in the presence of the King; Plowdon come. 322, 27. ass. pl. 49. 33 Ed. 3● aid der●y 103 Fitz. 10 H. 7 16. cannot be seized for the presence of the King is a protection for that time to him: This shows what reverence the Law gives to the person of a King. Reges, sacro oleo uncti sunt capaces spirituallis jurisdictionis But the two Houses were never held capable of that power. Rex est persona mixta cum sacerdote, habet Ecclesiasticam & spititualem jurisdictionem. This shows the King's power in Ecclesiastical Causes. The lands of the King is called in Law Patromonium sacrum. Com. Sur Littl Sect 4. 3. Ed. 3. 19 The houses should not have meddled with that sacred Patr●●●●y. The King hath no Peer in his land, and cannot be judged? Ergo the two Houses are not above him. The Parliament 15. Ed. 3 was repealed, for that it was against the King's Laws and prerogative. 4 pars. instit fol. 52. this shows clearly the propositions sent to Newcastle, ought not to have been presented to his Majesty, for that they are contrary to the Laws and his Prerogative. The Lords and Commons cannot assent in Parliament to any thing that ●ends to the disinherision of the King and his Crown, 4 pars Cookes instit. fol. 14 42. E. 3. Parliament Rol. num. 7. Lex & consuetudo Parliamenti. to which they are sworn. This condemns the said Propositions likewise. To depose the King, to imprison him until he assent to certain demands, A war to alter the Religion established by Law, or any other Law, or to remove Councillors, to hold a Castle or Fort against the King; are offences against that Law declared to be treason by the resolutions herein after mentioned, by that Law men are bound to aid the King when war is levied against him in his Realm. 25. Ed. 3. cap. 2. King, in this Statute must be intended in his natural body and person that only can die; for to compass his death, and declare it by overt Act is declared thereby treason, to encounter in fight such as come to aid the King in his wars, is treason. Compassing of the Queen's death, of the King's eldest son, to coin his money, to counterfeit his Great-Seale, to levy War against him, to adhere to such as shall so do, are declared by that Act to be high Treason. This Statute cannot refer to the King in his politic capacity, but to his natural, which is inseparable from the politic, for a body politic can have neither. Wife nor Child, 21. Ed. 4.14. not, levy War, nor do any Act but by the operation of the natural body: A Corporation or body politic hath no soul or life, but is a fiction of the Law, and the Statute meant not fictitious persons, but the body natural, conjoined with the public, which are inseparable. The clause in that Act, that no man should sue for grace or pardon for any offence condemned, R. 2.11. 〈◊〉 cap. 13. 4. pars instit. fol. 42. or forfeiture given by that Act, was repealed by a subsequent Act in 〈◊〉 R●● holden unreasonable, without example and against the Law and custom of the Parliament. This condemns the Proposition for disabling the King to Pardon. 4. pars instit, fol. 42. The Act of 11. R. 2. so much urged by the other side, was an Act to the which the King consented, and so a perfect Act: yet Note the Army then about the Town: Note that that Law is against private persons, and by the 3. cap. thereof, the Treasons there declared, are declared to be new Treasons made by that Act, and not to be drawn to example, it was abrogated 21. R. 2. and revived by an usurper 1. H. 4. to please the people, and by the tenth chap. thereof enacts that nothing shall be treason but what is declared by 25. Ed. 3. 16. R●. cap. 5. The Regality of the Crown of England is immediately subject to God and to none other. Plain words, H. 4. showing where the supreme power is. The Commission of Array is in force and no other Commission Ret. Parim. ●. H. 4. numb. 24. an Act not printed, this Act was repealed by 4. and 5. P. & M. cap. 2. this repealed by the Act of 1. jacobi and so it is of force at this day, for the repealing Statute is repealed 4. pars institu. fol. 51. & 125. published since this Parliament, by the desire of the house of Commons, their Order is printed in the last leaf of the commentaries upon Magna Charta. Sir Edward Cook, A book allowed by Sir Nat. Brent, called the reason of the War: fol. 65. by their party is holden for the Oracle of the Law, who wrote the said fourth part, in a calm and quiet time, and I may say, when there was no need to defend the authority of the Commission of Array. For that objection, that that Commission leaves power to the Commissioners to tax men secundum facultates, and so make all men's estates Arbitrary: the Answer is, that in levying of public aids upon men's goods & estates, which are variable, and probably cannot be certainly known by any but the owners, it is impossible to avoid discretion in the assessments, for so it ever was, and ever will be. By this appears that the Votes of the two houses against the commission of Array, were against the Law. The death of the King dissolves the Parliament, H. 5. if Kings should refer to the politic capacity it would continue after his death 4. pars Inst. 46. which proves that the King cannot be said to be there when he is absent, as now he is: 2. H. 5. 4 pars instit 46. there is no interregnum in the Kingdom the dissolution of the Parliament by his death, shows that the beginning and end thereof refers to the natural person of the King, and therefore he may lawfully refuse the Propositions. 2. H. 5. Chap. 6. to the King only it belongs to make Leagues with Foreign Princes● this shows where the supreme power is. 8. H. 6. numb. 57 R●tt. Parl-Cookes 4. p●ns instit. 25, N● peiviledge of Parliament is grantable for treason, H. 6. Felony, or Breach of the Peace; if not to any one member, not to two, not to ten, not to the Major part, 19 H. 6.62. The Law is the inheritance of the King and his people by which they are ruled, King and people; And the people are by the law bound to aid the King, and the King hath an inheritance to hold Parliaments and in the aids granted by the Common●alty. If the major part of a Parliament commit treason they must not be Judges of it, for no man or body, can be Judge in his own cause, and aswell 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 Regal rights, 32. H. 6 13. Ploughed. 334. this shows where the supreme power is. 17. Ed. 4. rot parl. numb. 39 Ed 4. No privilege of Parliament is grantable for Treason, Felony, or Breach of the peace, if not for one, not for two or more, or a Major part. The same persons must not be Judge and party. A corporate body can commit no treason, Calvin's Case 7 pars fol. 11 12 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 natural person of him who to some purposes is a body corporate, but quatenus corporate no treason can be committed by or against such a body; that body hath no soul, no life, and subsists only by the fiction of the Law, and for that reason the Law doth conclude as aforesaid; Blow. come. 213. therefore the statute of 25. E. 3. must be intended of the King's natural person conjoined with the politic which are inseparable and the King's natural person being at Holmby, his politic is there also, and not at Westminster; 19 Ed. 4.46. for the politic and natural make one body indivisible. If all the people of England should break the league made with a foreign Prince, 22. Ed. 4. Fitz: juvisdiction. last placite. without the King's consent, the league holds and is not broken; and therefore the representative body is inferior to his Majesties. The King may erect a Court of Common-pleas in what part of the kingdom be pleaseth by his letters patents; can the two houses do the like?. 1. Ed. 5. fol. 2. It cannot be said that the King doth wrong, Ed. 5. 4 Ed. 4.25. 5 Ed. 4.29. declared by all the Judges and Sergeants 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 laws, which the Judges are sworn to observe and deliver between the King and his people impartially to rich and poor, high and low; and therefore the Justices and the Ministers of Justice are to be questioned and punished if the Laws be violated: And no reflection to be made on the King. All Counsellors and Judges for a year and three months until the tumults began this Parliament were all left to the ordinary course of Justice, what hath been done since is notorious. For great Causes and considerations an act of Parliament was made for the surety of the said King's 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 against every Rebellion, power and might, H. 7. 11 H. 7. cap. 1. reared against him within this land, that it is against all laws, reason and good canscience, if the King should happen to be vanquished, that for the said deed and true duty and alligeance they should suffer in any thing, it is ordained they should not: and all acts of process of law hereafter to be made to the conteary are to be void. This law is to be understood of the natural person of the King, for his politic capacity cannot be vanquished; nor war reared against it. Relapsers are to have no benefit of this act. It is no statute, if the King assent not to it, 12 H. 7.20. H. 8. and he may disassent, this proves the negative voice. The King hath full power in all causes to do justice to all men this is affirmed of the King, 24 H. 8. cap. 1● 25 H. 8. cap. 2● and not of the two Houses. The commons in Parliament acknowledge no superior to the King under God, the houses of Commons confess the king to be above the representative body of the Realm. Of good right and equity the whole & sole power of pardoning treasons, felonies etc. belong to the King, 27 H. 8. cap. 24 Note. as also to make all Justices of Oyer & Terminor, Judges, Justices of the peace, etc. This law condemns the practice of both houses at this time. The kings royal assent to any Act of Parliament signed with his hand expressed in his Letters-patents under the great Seal, and declared to the Lords and Commons shall be as effectual, 33 H. 8. cap. 21 as if he assented in his own person; a vain 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 foe 59.60. the Commons the inferior members, and so the body is composed, therefore there is no more Parliament without a king, than there is a body without a head. There is a corporation by the Common-law, as the King. Lords, 14 H. 8 fol. 3. and Commons, are a corporation in Parliament, & therefore they are no body without the King. The death of the King dischargeth all mainprize to appear in any Court, 24 Ed. 3.48. 1 Ed. 4.2. 2 H. 4.8. 1 H. 7.10. 1 Ed 5.1. or to keep the Peace. The death of the King discontinues all pleas by the Common-law, which agreeth not with the virtual power insisted upon now. Writs are discontinued by the death of the King; Ed. 6. 1 Ed. 6. cap. 7. Patents of Judges, Commission for Justices of the Peace, Sheriffs, Escheators, determined by his death; Where is the virtual power. All authority and jurisdictions spiritual and temporal is derived from the King, 1 Ed. 6. cap. 2. therefore none from the Houses. His Majesty's subjects, 2. 3 Ed 6. ca 2 11 H. 7. cap. 1. Calvin's Case. Sa. pars Cook according to their bounden duties, aught to serve the king in his wars, of this side or beyond the Seas; beyond the seas is to be understood for wages: This proves the power of wars, and preparation for war to be in the king. It is most necessary both for common policy and duty of the subject, 5. 6 Ed. cap. 11 to restrain all manner of shameful standers against their king, which when they be heard, cannot but be audible to his true and loving subjects, upon whom dependeth the whole unity & universal weal of the realm. This condemns their continuing of the weekly pamphlets, who have been so foul mouthed against his Majesty. The punishment of all offenders against the laws, belongs to the king, Q. Marry. 1 Mar. Pl. 2. c. 2 and all jurisdictions do, and of right aught to belong to the King. This leaves all to his Majesty. All Commissions to levy men for the war, 4 5 P & M. c. 3 Q. Eliz. 10 Eliz pl 315 are a warded by the king. The power of war only belongs to the king. It belongs to the king to defend his people, and to provide Arms and Force. No speech of the two Houses. Roy ad sole government deases subjects. Blow. 234.242 213. Calvin's case 7. pars fol 12. Blow. come. 213 Corpse natural le Roy & politic sunt un corpse. that is, The king hath the sole government of his Subjects, the body politic and the natural body of the king make one body and not divers, and are inseparable and indivisible. The body natural and politic make one body, and are not to be severed: Ligeance is due to the natural body, Blow. 934 243.213. Calvin's case 7. pars fol. 12. and is due by nature; God's Law, and Man's law, cannot be forfeited nor renounced by any means, it is inseparable from the person. Every Member of the House of Commons, at every Parliament, takes a corporal Oath. 1 Eliz. cap. 1. Cawdries case. 5. pars fol. 1. That the King is the Supreme and only Governor 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, Cawdries Case ibid. The Earl of Essex, and others, assembled multitudes of men to remove Councillors, 43 Eliz. 3 pars instit. fo, 6.2. adjudged Treason by all the Judges of England. To depose the king, or take him by force, to imprison him until he hath yielded to certain demands, adjudged Treason, 39 Eliz. Hil. 1 Jacobi ibid. and adjudged accordingly in the Lord Cobham's Case. Arising to alter Religion established, or any Law, is Treason; 39 Ed. B●adf. case f 9 & 16. By all the Judges of England ibid. 10 Eliz Blow, 316. so for taking of the King's Castles, Forts, Ports or Shipping Brook treason 24. 3 & 4. Philip and Mary, Dier, Staffords Case concerning Scarborough. The Law makes not the servant greater than the Master, nor the subject greater than the King, for that were to subvert Order and Measure. The Law is not known but by Usage, 10 Eliz. Blow, 319. and Usage proves the Law, and how Usage hath been is notoriously known. The King is our only Rightful and lawful Liege Lord and Sovereign, K. James. 1 Jac. cap. 1. 9 Ed. 4. fol. 8. We do upon the knees of our hearts ag●ze constant Faith, Loyalty and Obedience to the King and his Royal progeny, in this high Court of Parliament, where all the body of the Realm is either in person or by representation: We do acknowledge that the true and sincere Religion of the Church, is continued and established by the King. And do recognize, as we are bound by the Law of God and Man, the Realm of England and the Imperial Crown thereof doth belong to him by inherent birthright, and lawful and undoubted succession, and submit ourselves and our posterities for ever, until 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 complete nor perfect without his Majesty's 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 birthright, and that there can be no Statute without his express assent, and destroys the chimaera of the King's virtual being in the Houses. To promise obedience to the Pope, or any other State, Prince or Potentate, 3 Jac. cap. 4, other than the King his Heirs and Successors, is Treason; and therefore those persons who call the Houses the Estates offend this Law. Such Bills as his Majesty is bound in Conscience and Justice to pass, K. Charles. Collection of Ordinances fo. 727. 1 pars ib. fol. 728. are no Law without his assent. To design the ruin of the King's person, or of Monarchy is a monstrous and injurious charge. Vbi Lex non distinguit, ibid.; fol. 865. non est distinguendum, all the aforesaid Acts and Laws do evidently prove the Militia to belong to the king: that the king is not virtnally in the two Houses: that the king is not considerable separately in relation to his politic capacity: that the king is not a person trusted with a power, but that it is his inherent birthright, from God, Nature and Law, and that he hath not his power from the people: These Laws have none of those distinctions of natural and politic, abstractum & concretum, power and person, in Caesar's time this Island had kings, and ever since, which is almost 17 hundred years ago. No King can be named, in any time, made in this kingdom by the people: A parliament never made king, for they were kings before, the Parliaments are summoned by the king's Writs, which for Knight's Citizens and Burgesses gins thus, viz. Rex vic. Wilis. Saltem. Quia Nos de avisamento & assensu consilij nri. pro quibus. arduis & urgentib. negetiis nos statum & defensionem Regninri. Aug. & Eccles. Anglic. concernentibus quoddam Parliamentum urum, apud B. teneri ordinavimus & ibid. cum Prelatis Magnatib. & proceribus dicti Regni uri. Colloqui, habere & tractatum, ipsi Vicecomiti precipimus firmiter injungendo qd. facta Proclamatione in prox. Comitatu tuo post receptionem ejusd. Brevis, deuce Milites gladiis cinctos, etc. eligi facias ad faciendum & consentiendum hiis quae tunc ibidem de Communi Concilio nro. Angl faventi De● contigerit ordinari super Negotiis antedictis, ita quod pro defectis potestatis hujusmodi seu propter improvidam electionem Milium, Civium, & Burgensium pred. dicta negotia ura. infecta non remanerent. The King is Principium, caput & finis Parliamenti, the body makes not the head, 4 pars Instit: fol. 3 & 4. nor that which is posterior that which is prior: concilium non est Preceptum, conciliarij non sunt Praeceptores, for Counsel to compel a consent, hath not been heard of to this time in any age, and the house of Commons, by the writ, are not called ad concilium; the Writts to the twelve Judges, King's Council, twelve Masters of the Chancery are concilium impensuri, and so of the Peers. The writts for the Cominalty, Ad faciendum & consentiendum. Which shows what power the representative body hath, they have not power to give an oath; neither do they claim it. The Oath of the Justices 18 of E. 3. among Statutes of that year. The King at all times, when there is no parliament, & in Parliament is assisted with the advice of the Judges of the Law, 12 in number, for England at least hath 2 Sergeants when fewest: an Attorney and Solicitor, twelve Masters of the Chancery, his Council of State, consisting of some great Prelates and other great Personages, versed in State affairs, when they are fewest to the number of twelve. All these persons are always of great substance, which is not preserved but by the keeping of the Law, The Prelates versed in divine Law, the other Grandees in affairs of State & managery of Government. The Judges, King's Sergeants, Attorney, Solicitor, and Masters of the Chancery versed in the Law and Customs of the Realm: All sworn to serve the King and his people justly & truly, the King is also sworn to observe the Laws, and the Judges have in their Oath a clause, That they shall do common right to the King's people, according to the established Laws, not withstanding any command of the King to the contrary, under the Great Seal or otherwise, The people are safe by the Laws in force without any new: The Law finding the Kings of this Realm assisted with so many great men of Conscience, Honour and skill in the rule of Commonwealth, knowledge of the Laws, and bound by the high and holy bond of an Oath upon the Evangelists, settles among other powers upon the King, a power to refuse any Bill agreed upon by both Houses, and power to pardon all offences, to pass any Grants in his Minority, (there are many great persons living hold many a thousand pound a year by Patents from Edward the sixth, passed when he was but ten years of age) not to be bound to any Law to his prejudice, whereby he doth not bind himself; power of war and peace, coining of Money, making all Officers, etc. The Law, for the reasons aforesaid, hath approved these powers to be unquestionable in the King, and all Kings have enjoyed them till 3. Nou. 1640. It will be said notwithstanding all this fence about the Laws, the Laws have been violated, and therefore the said powers must not hold, the two Houses will remedy this. The answer to this is evident: There is no time past, nor time present, nor will there be time to come, so long as men manage the Law, but the Laws will be broken more or less, as appears by the story of every age. All the pretended violations of this time were remedied by Acts to which the King consented before his departure 10. Jan. 1641. being then driven away by Tumults. And the Houses for a year and almost three Months: From 3. Nou. 1640 to 10 Jan. 1641. as aforesaid, being a year and almost three months, had time and liberty to question all those persons who were either causes or instruments of the violation of any of the Laws. Examine how both Houses remedied them in former times. First, touching Religion, What hath beens done this way? Both houses in Henry the eights time tendered to him a Bill to be passed called commonly the Bill of the six Articles, this was conceived by them to be a just and a necessary Bill: Had not Henry the eighth done well to have refused the passing of this bill? both houses tendered a bill to him to take the reading of the Scriptures from most of the laity: had not King Henry the eight deserved much praise to reject this bill? In Queen mary's time both houses exhibited a bill to her to introduce the Pope's power and the Roman Religion; had not Queen Mary done well to have refused this bill? Many such instances may be given. The two Houses now at Westminster I am sure will not deny but the refusal of such Bills had been just, the King being assisted as aforesaid, and why not so in these times? For the Civil Government what a bill did both houses present to Richard the third, to make good his title to the Crown; had it not been great honour to him to have rejected it? what bills were exhibited to Henry the eight by both houses for bastardising of his daughter Elizabeth, a Queen of renowned memory, to settle the Crown of this realm, for default of Issue of his body, upon such persons as he should declare by his letters Patents or his last will, and many more of the like? had not this refusal of passing such bills magnified his virtue and rendered him to posterity in a different Character from what he now hath? And by the experience of all times and the consideration of human frailty this conclusion is manifestly deduced, that it is not possible to keep men at all times (be they the houses, or the King and his council) but there will be sometimes some deviation from the Laws, and therefore the constant and certain powers fixed by the ancient Law must not be made void, and the King's Ministers; the Laws do punish where the Law is transgressed, and they only ought to suffer for the same. In this Parliament the houses exhibited a bill to take away the suffrages of Bishops in the upper house of Parliament, and have since agreed there shall be no more Bishops at all, might not the King if he had so pleased have answered this bill with Le Roy s'avisera, or no voult. 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 destroys the writ whereby they are made two houses of Parliament the King in the writ to the Lords being Cum praelatis colloquium habere; 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 since we were Christians, and the fundamental Law of the Kingdom 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 since his Majesty hath passed the Bill for taking away their votes in Parliament, it is a Law that binds us so far. Upon the whole matter the Law hath notably determined that Bills agreed by both houses, pretended to be for the public good, are to be judged by the King, for in all Kings reigns Bills have been preferred by both houses, which all ways are pretended to be for the public good, and many times are not, and were rejected with Roy s'avisera or Roy ne veult. This Parliament began the third of November 1640 before that time in all the Kings reign no armed power did force any of the people to do any thing against the law: what was done, was by his Judges, officers Referees and Ministers from that time until the tenth of January 1641 (when the King went from London to avoid the danger of frequent tumults, being a year and three months▪ Privy Councillors and all his Justices and ministers were left to the Justice of the law, there wanted 〈◊〉 time to punishable men. The Sphere of the house of Comment is to represent the grievances of the Country, to grant aids for the King upon all fit occasions extraordinary, to assent to the making or abrogating of laws▪ The Orb of the house of Lords to Reform eroneous judgements given in the King's Bench, to redress the delays of Courts of Justice, to receive all Petitions, to advise his Majesty with their Council, to have their votes in making or abrogating of Laws, and to propose for the common good, what they conceive meet. L●x non cogit ad impossibilia, Subjects are not to expect from King's impossible things, so many Judges, Counsellors Sheriffs, Justices of the peace, Commissioners, Ministers of State, that the King should overlook them all cannot be, it is impossible. The King is virtually in his ordinary Courts of Justice; so long as they continue has Courts: their charge is to administer the laws in being, and not to delay, defer or sell-justice for any commandment of the King. We have Laws enough ●●st●u●●●ta b●●i saculi sunt boni 〈◊〉 good ministers, as Judges and officers are many times wanting, the houses propose now Laws, or abrogation of the old; both induce novelty; the law for the reasons aforesaid, makes the King the only Judge, who is assisted therein by a great number of grave learned, and prudent men, as aforesaid. For the considerations aforesaid the King's party adhered to him, the law of the Land is their birthright, their guide, no offence is committed where that is not violated: they found the commission of Array warranted by the law; they found the King in this Parliament to have quitted the Ship-money, Knighthood-money, seven Courts of Justice, consented to a triennial Parliament, settled the Forest bounds, took away the Clerk of the Market of the household, trusted the house 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 Laws, oaths and reason, 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 and more of the Lords had disserted that 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 counter set Seal; and in the King's name against his consent, levying war 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 oaths to oppose forces ray fed by the King, not to adhaere to him, but to them in this War which they call the Negative Oath, and the Vow and Covenant. By several ways never used in this Kingdom they have raised moneys to foment this war, and especially to enrich some among them; namely first Excise, secondly Contributions, thirdly Sequestrations, fourthly Fift parts, fifthly Twentieth Parts, fixtly Meale-money seventhly Sale of Plundered goods, ●ightly Loans, ninthly Benevolences, tenthly, Collections upon their fast-days, eleventhly new Inpositions upon Merchandizes, twelvethly Guards maintained upon the charge of private men, thirteenthly Fifty Subsidies at one time, fourteenthly Compositions with such as they call Delinquents, fifteenthly Sale of Bishop's lands, etc. From the King's party means of subsistence are taken; 1 R. 3. cap. 3. ●ract. li. 3. c. 8. Stanford. 192. Sir Ger. Fleetwoods' Case. 8. pars Cook 7. H. 4 last lease. before any indictment, their Lands seized, their goods taken, the Law allows a Traitor or Felon attainted, Necessaria sibi & family sua in vict●● & v●stitu, where is the Covenant? where is the Petition of light? where is the liberty of the subject? First, We have aided the King in this war 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, We have maintained the Commission of Array by the King's Command, contrary to their votes: We are warranted by the statute of the fifth of Henry the fourth, and the judgement of Sir Edward Cook, the Oracle of the Law as they call him. Thirdly, We maintained Arch-Bishops and Bishops, whom they would suppress. Our warrant is Magna Charta, and many statutes more. Fourthly, we have maintained the book of Common prayer, they suppress it, Our warrant is five acts of Parliament in Edward the sixth and Queen Elizabeth's time, 5. Pesch●. 35. Elizabeth inter placita Coronae in Banco Regis, New book of Entries, sol. 252. Penry, for publishing two scandalous Libels against the Church government, was indicted, arraigned, attainted, and executed at Tyburn. Fifthly, We maintained the Militia of the Kingdom to belong to the King, they the contrary, Our warrant is the statute of the seventh of Edward the first, and many statures since, the practice of all times, and the custom of the Realm. Sixthly, We maintained the counterfeiting of the great Seal to be high Treason, and so of the usurpation of the King's Forts, Ports, Shipping, Castles and his Revenue, and the Coining of money, against them; We have our warrant by the said statute of the twenty fifth of Edward the third, Chapter the second, and divers others since, and the practice of all times. Seventhly, We maintain that the King is the only supreme govermour in all causes. They, that his Majesly is to be governed by them, Our warrant is the statures of the first of Q. Eliza. Chapter the first, and the fifth of Q. Elizabeth the first. Eighthly, 9 Ed. 4. sol. 4. We maintain that the King is King by an inhaerent birthright; by nature, by God's law, and by the lay● of the Land, They say his Kingly right is an 〈…〉, Our warrant is the statute of the first of King Ja●●●. Chapter the first. And the resolution of all the Judges of England in calvin's case. Ninthly We maintain that the politic capacity i● not to be severed from the natural. They hold the contrary: Our warrant is two flatures (viz.) ●xilium 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, calvin's case pars 7. fol. 11. Tenthly we maintain that who aids the King at home or abroad 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 We maintain that the King hath power to disassent to any Bill agreed by the two Houses; which they deny. Our warrant is the Statute of the second of Henry the fift and the practice of all times, the first of King Charles, Chapter the seventh the first of King James Chapter the first. Twelfthly We maintain that Parliaments ought to be holden in a grave and peaceable manner, without ●●ults, They allowed multitudes of the meanest sort of people to come to Westminster to cry for, Coll. of Ord. fol. 31. Justice when they could not have their will, and keep guards of armed men to wait upon them. Our warrant is the Statute of the seventh of Edward the second and their Oracle. Thirteenthly We maintain that there is no state within this Kingdom but the King's Majesty, and that to adhere to any other State within this Kingdom is high treason, our warrant is the Statute of the third of King James Chapter the fourth, and the ●●enty third of Queen Elizabeth Chapter the first. Fourteen, We maintain that to levy a war to remove Counsellors, to alter religion, or any Law established is high Treason, They hold the contrary. One warrant is the resolutions of all the judges of England in Queen Elisabeths' time, and their oracle agrees with the same. Fifteenthly We maintain that no man should be imprisoned, put out of his Lands, but by due course of Law, and that no man ought to be adjudged to death but by the Law established, the customer of the Realm, or by act of Parliament; They practise the contrary in London, Bristol, Kent, etc. Our warrant is Magna Charta, Chapter the twenty ninth, the Petition of right the third of King Charles, and divers Laws there mentioned. We of the King's party, did and do detest Monopolies, and ship money, and all the grievances of the people as much as any men living, we do well know that our estates, lives and fortunes are preserved by the Laws, and that the King is bound by his laws, we love Parliaments, if the Kings, Judges, Counsel or Ministers have done amiss, 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 King's fault? The law faith the King can do no wrong, 11 pars Cooks Reports Magdalen College Cale. that he is medicus Regni, pater patriae sponsus regni qui per annlum is espoused to his Realm at his Coronation; The King is God's Lieutenant, and is not able to do an unjust thing, these are the words of the Law. One great matter is pretended that the people are not sure to enjoy the acts passed this Parliament, A succeeding Parliament may repeal them; The objection is very weak, a Parliament succeeding to that may repeal that repealing Parliament. That fear is endless and remediless, for it is the essence of Parliaments being complete and as they ought to be, of head, and all the Members, to have power over Parliaments before; Parliaments are as the time are; if a turbulent faction prevails the Parliaments are wicked as appears by the examples recited before of extreme wicked Parliaments: if the times be sober and modest, prudent and not biased, the Parliaments are right good, and honourable, and they are good medicines and salves, but in this Parliament excessit medi●i●a medum. In this cause and war between the King's Majesty, and the two Houses at Westminster, what guide had the Subjects of the Land to direct them but the laws? What means could they use to discern what to follow, what to avoid but the Laws? The King declaresi●●● treason to adhere to the Houses in this war: The Houses declare it Treason to adhere to the King in this War. The Subjects for a great and considerable part of them (treason being such a crime as forfeits life and estate, also renders a man's posterity base beggarly and infamous) look upon the Laws, and find the letter of the law requires them to assist the King, as before is manifested, was ever subject criminally punished in any age or nation for his pursuit of what the letter of the Law commands? The Subjects of the kingdom find the distinction and interpretation now put upon the Laws of Abstractum & Concretam, Power and Person, body politic, and natural, Personal presence and virtual, to have been condemned by the law: And so the King's party hath both the letter of the law and the interpretation of the letter cleared to their judgements, whereby they might evidently perceive what side to adhaere to, what satisfaction could modest peaceable and loyal men more desire? A verbo legis in criminibus & poenis non est recedendum, hath been an approved maxim of law in all ages and times. If the King be King and remain in his Kingly office (as they call it) than all the said laws are against them without colour: Coll of Ordinances 777. they say the said laws relate to him in his Office, they cannot say otherwise, Commissions and pardon in the King's name, and the person of the King and his body politic cannot▪ nor aught to be severed as hath been before declared: 5 Eliz. cap. 1.1 Eliz. cap. 1. And the members of both houses have sworn constantly in this Parliament that the King is the only supreme Governor in all causes over all persons at this present time. For that of verbal or personal commands of the King which is objected, We affirm few things to be subject thereto by the law: But his Majesty's Command under his great Seal, which in this war hath been used by the King's command for his Commission to levy and array men, that is no personal 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 Judges and officers their places and callings. It is objected the King cannot suppress his Courts of Justice, Ob. Sol. 7 pars The Earl of westmerland's Case. 1 Eliz. Dier. 165.7. pars Cook. and that this war tended to their suppression. The answer is the King cannot nor aught to suppress 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 proceed in those courts holden by others than Judges made by the King, and against his command under the great Seal, and his Majesty is not obeyed, but the votes of the houses, The case of discontinuance of Process. they cease to be the King's Courts and are become the Courts of the houses, and his Judges breaking that condition in law, of trust and loyalty, implied in their Patents, are no longer his Judges; they obey and exercise their places by virtue of writts and processes under a counterfeit Seal. The King only can make Judges, the twenty seventh of Henry the eighth, Chapter the twenty fourth, justices of the peace, etc. twenty eighth of Henry the eighth Dier the eleventh, the King's Patent makes Judges: The cheese Justice of the King's Bench is made by the Kings writ only of all the judges. The great Seal is the key of the kingdom, Articuli super chartas cap. 5. and meet it is that the King should have the key of his kingdom about him; 2. pars instit 552. which confutes their saying that the King got the Seal away surreptitiously. The King, and he only, Britton sol. 23. may remove his Courts from Westminster into some other place, at York the Terms were kept for seven years, in Edward the first's time: but for the Court of Common pleas, the place must be certain; for the King's Bench and Chancery, the King by the law may command them to attend his person always if it seem so meet unto him: but the removing of the Common pleas must be to a place certain and so notified to the people. All the books of law in all times agree, 34. Assis. pl. 24.22. Ed. 4. Fitz. jurisdiction last placit. that the King may grant conusance of all Pleas at his pleasure within any County or precinct to be holden there only, 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 certain, and so notified to the people) and adjourn the terms as he sees cause. All which the two houses have violated. Plebs sine lege ruis. Some seeming objections of Master Prin●'s, scattered in divers books answered, and the truth thereby more fully cleared. The first of Henry the fourth reviveth the statute of the eleventh of Richard second, 1 Ob. and repeals to the twelfth of Richard the second, whereby certain persons were declared traitors to the King and Kingdom, being of the King's party. True, Sol. but note, the eleventh of Richard the second, 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 drawn into example, and that no Treason should be but such as the twenty fift of Edward the third declares. 9 Ed. 4. sol. 80. All these are Acts passed by the King and the three estates, not to be drawn into example, in a tumultuous time, by a besieged Parliament, with an army, and the confirmer of Henry the fourth being an usurper makes that Act of the first of Henry the fourth to secure himself. Also what is this in the votes of the two houses only at this time. The Court of Parliament is above the King, 2 Ob. for it may avoid his Charters Commissions, etc. granted against the law. And the Law is above the King. Sol. By the same reason you may say that the Courts of Chancery, or any of the Courts of Law at Westminster are above the King, for they make of no effect the King's Charters, which are passed against the Law: and the King is Subject to Law, and sworn to maintain it. Again, it is no Parliament without the King, and the King is the head thereof, he is principium Caput & finis of a Parliament, as Medas tenends Parliament. hath it, and two houses only, want principium Caput & fixis 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 that the King is above himself. The Parliament can enlarge the King's prerogative, 3 Ob. therefore it is above him. If the King assent, otherwise not; Sol. and than it is an Act of Parliament, and otherwise no Act. Bracton saith, God, the Law, and the King's Court, 4 Ob (viz.) his Earls and Barons are above the King, (viz.) in Parliament, as Master Prynne expounds it. Where is then the House of Commons? Indeed, take God, Sol. the Law, and Earls and Barons together it is true; but to affirm that the Earls and Barons in Parliament are above the King (the King being the head of the Parliament, and they one of the members) how an inferior member is above the head, is hard to conceive: besides, that position destroys all M. Pry●●es discourse, who attributes so much to the House of Commons. The King is but one of the three estates of Parliament, 5 Ob. and two are greater than one; therefore above. The Legs, Arms, Sol. and Trunk of the Body are greater than 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 Spiritual, the Lords Temporal, and the Commons; Coke, their Oracle, in his Chapter of Parliaments, fol. 1. In Corporations, 6 Ob. the greater number of voices make all the Acts of the Corporation valid; therefore so in Parliament. By this reason the King's assent is needless, and to no end, Sol. and all the Acts of Parliament formerly mentioned, and Law-Bookes have quite mistaken the matter, which with unanimous voice requires the King's assent as necessary: besides, the Corporations are so constituted by the King's Charters, that the greater number of Votes shall make their Acts valid. The King, as King, 7 Ob. is present in his Parliament as well as in all other his Courts of Justice, how be it he is not ther. In his other Courts of Justice he hath not voye, Sol. he is none of the Judges, in the Parliament he hath; if his presence be not necessary, his voice is not, nor his assent. ● Ob. Sovereign power of Parliaments, ●6, 47. The original prime legislative power of making Laws to bind the subjects and their posterity, rests not in the King, but in the Kingdom and Parliament, which represents it. Master Prynne in the same leaf affirms, and truly, that the King's assent is generally requisite to pass Laws and ratify them; Sol. the King is the head of the Kingdom and Parliament, how then can a Body act without a Head? A major part of a Corporation binds, 9 Ob. therefore the major part in Parliament, and so of by-Lawes. The Corporation is so bound, either by the King's Charters, Sol. or by prescription, which sometimes had the King's concession; but prescription, and Law, and practise, always left the King a negative voice. 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 Laws ministered in the Reigns of Usurpers, 11 Ob. bind rightful Kings, gᵒ. What is this to prove the two Houses power only, Sol. which is the question? 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, and such being Traitors and Rebels to the Regent King (having renounced the true King) when the lawful King is restored, 9 Id. 4.12 may be punished by him for their Treason against the Usurper. But here is a King still in both cases, and the proceed at Law holds; the Judges having their Patents from the being Kings, in the reigns of Kings, de facto or de ●ur●, for all Kings are bound and sworn to observe the Laws. A King dies without Heir▪ 12 Ob. is an infant, non compes mentis, etc. the two Houses may establish Laws. gᵒ. There is no Inter-regnum in England, Sol. as appears by all ou● Books of Law; and therefore the dying without Hei●e is a vain supposition, and by their principle 〈◊〉 is considerable in his politic capacity, which cannot die at also The Protector, assisted by the Council of the King at Law, his twelve Judges, the Countell of State, his Attorney, Solicitor, and two Sergeants at Law, his twelve Masters of the Chancery, hath in the King's behalf, and ever had, a negative Voice: but what is thy no the present question? We have a King of fall age, of great wisdom and judgement; the power of the two Houses in such a case to be over the King, cannot be shown. The King cannot disassent to public and necessary Bills for the common good, gᵒ. 13 〈◊〉. Nor ever did good King: but who shall be judge, Sol. whether they be public and necessary? The major part in either of the Houses, for passing of Bills so pretended, may be but one or two voices, or very few, and perhaps of no judicious men: is it not then fit or more agreeable to reason, that his Majesty and Council 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 public good, rather than a minor, (of which sort there may be in the Houses) or a weak 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 maintain justas leges & consi●●tudines quas vulgas elegerit, gᵒ. ●●perie hath been in the kingdom, So●. and therefore to continue it still, will not be taken for a good argument; when things are settled for many ages, to look 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 Law●s say, that the King's Office is an heritage inherent in the blood of our Kings, and their birthright. And Usurpers that come in by the consent of the people are Kings de facto, but not the jure, Ed. 4. c. ●. but not the jure, as appears by the Acts of Parliament declaring them so: And by all our Law-Bookes and the fundamental constitution of the Land, Regal power is hereditary and not elective. For the words (vulgus-elegerit) if vulgus be applied to the House of Commons, 1 H. 7. they of themselves can make no Laws. The Peers were never yet termed vulgus; but allowing they be so called, the Laws to be made must be just; and who is fit to judge thereof, is before made evident. Customs cannot refer to future time, ●5 Ob. and both are conpled, Laws and Customs. Princes have been deposed, and may be by the two Houfes, gᵒ. The deposers were Traitors, Sol. as appears 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 appeal to the Parliament for errors in judgements in all Courts, 16 Ob. is frequent, gᵒ. This is only to the House of Lords, Sol. and that is not the Parliament; the House of Commons have nothing to do therewith: and in the House of Peers, if a Writ of Error 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 King's Council and twelve Masters of the Chancery assist there, by whose advice erroneous 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 appears by the Statute of the thirteenth of Q. Elizab. Chapter the first: and the descent of the Crown is guided rather by a Parliamentary Title then by Common Law, gᵒ. If this Objection be true, Sol. that the Title to the Crown is by Parliament, than we had no Usurpers, for they all had Parliaments to back them, yea, Richard the third, that Monster. All cur Books of Law say they have the Crown by descent, and the Statutes of the Land declare, that they have the same by inherent birthright. And the Statute of the thirteenth of Elizabeth, the first Chapter, was made to secure Q, Elizabeth against the Qu. of Sca●●, then in the kingdom, claiming the Grown of England, and having many adherents. 〈…〉 〈…〉 〈…〉 And that Statute to that end a firmes no such power in the two Homfor (which is the Question) but in Q Elizabeth, and the two Houses, which makes against the pretence of this time. Master Prynne, fol. 104. of his book, entitled, The Parliaments supreme power, etc. Objecting the Statute of the first of Queen Elizabeth, and his own Oath, that the king is the only supreme Governor of this Realm; Answers, The Parliament is the supreme power, and the king supreme Governor: And yet there he allows him a Negative Voice; and fol. 107. confesseth that Acts of Parliament translated the Crown from the right Heirs at Common-law, to others who had no good Title; then the Parliamentary▪ Title makes not the king, so powerful in truth, that it escapes from a man unawares: To make a distinction between Supreme Governor, and Supreme power, is very strange, for who can Govern without power? The king assembles the Parliament by His Writ, adjourns, Vide Speed 645.4 par. Instit. 27. & 1. prorogues, and dissolves the Parliament, by the law at his pleasure, as is evident by constant practice, the House of Commons never sat after an adjournment of the Parliament by the king's command. Where is the supreme Power. The king by his Oath; 1ST. Ob. is bound to deny no man right much less the Parliament, to agree to all just and necessary laws proposed by them to the king. This is the substance of the discourse against the king's Negative Voice. The king is so bound as is set down in the Objection, but who shall judge whether the Bill proposed be just and necessary: Sol. For all that they do propose are so pretended and carried in either House, sometimes by one or two Voices; or some few as aforesaid, and certainly as hath been shown, the king, his Council of State, his Judges, Sergeants, Attorney, Solicitor, and twelve Masters of the Chatcery can better judge of them, than two or three, or few more. Mr. Pryn fol. 45. In his book of the Parliaments interest to nominate Privie-Councellors, calleth the opinion of the Spencers, to divide the Person of the King from his Crown, a strange opinion, Calvin's case, 7. pars, fol. 11. and citys calvin's Case, but leaves out the conclusions there in mentioned, fol. 15. Master Prynne saith there, But let this opinion be what it will: without the King's Grace and Pardon it will go very far, and two Acts of Parliament there mentioned are beyond an opinion. And in his Book of the opening of the Great Scale, fol. 17. The Parliament hath no jurisdiction to use the Great Seal for Pardons General or Particular. Where is the Supreme power? Mr. ●9. Ob. Prynnes (opening of the Seal) pag. 19 saith, The Noblemen and State, the day after the Funeral of King Henry the third (King Edward the first his son being in the Holy Land) made a new Great Seal, and Keepers of the same: And in Henry the sixts time, in the first year of his Reign, the like was done in Parliament. A facto, Sol. ad jus, is no good Argument, for that in Edward the firsts time, it was no Parliament, for King Henry the 3. was dead, which dissolved 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 Seal, it was so suddenly done after Henry the thirds death, King Edward the first being then in the Holy Land, it was the first year of his Reign, and no Parliament was held that year, nor the second year of his Reign: The first Parliament that was in his Reign, was in the third year of his Reign, as appears by the Printed Acts. Also the making of that Seal was by some Lords then present, What hand had the Commons in it? Concerning the Seal made in Henry the sixths' time, the Protector was Viceroy according to the course of Law, and so the making of that Seal was by the Protector in the King's name; and that Protector, Humphrey Duke of Gloucester, as Protector, in the kings Name summoned that Parliament, and was Protector made by the Lords, and not in Parliament, as appeareth plainly, 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, than Protector, to summon that Parliament, Prynne, ibid. fol. 19 ●●t the new count c●fe it Seal was made when the King was at G●xford, in his own kingdom, and not in the holy Land. M●. Prynne in his Book of the two Houses power to impose Taxes, restrains Malignants against any Habeas Corpus, 20. Ob. etc. saith, that the Parliament is above Magna Charta, and fol. 15. ibid. The Parliament hath power over Magna Charta to repeal the same when there is Cause. This Argument supposeth that they have the king's power, Sol. which hath appeared formerly they have not. But suppose they had, Magna Charta contains many moral Laws, which by the Law of the Land a Parliament cannot alter, 21 H. 7.2. D. & Student, 2. Dialogue. For example it saith cap 18 Justice shall not be sold, delayed, no● denied 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 maintain. What they would have doth now by the Propositions sent to N●●● castle to his Majesty appear, whereby they would have him divest himself, and settle in them all his kingly power by Sea and land, and of themselves ●o have power, without him, today upon the people of this land what taxes they think meet, to abolish the Common, prayer book, to abolish Episcopacy, and to introduce a Church Government not yet agreed, but such as they shall agree on. His Majesty finding 〈◊〉 prevailing p●rty in both Houses to 〈…〉, and being chased away with Tumults from London, leaves the Houses for these Reasons, (〈◊〉.) First, because to 〈◊〉 the Government for Religion, in against the king 〈◊〉. 〈◊〉, against their Oaths▪ For every of them hath sworn in this Parliament, That His Majesty is the 〈◊〉 supreme Governor in all Causes Ecclesiastical and over all persons. Thirdly, This course is against Magna Charta, the 1. chap. and the last. Salvae suis Episcopis omnes libertates suae, Confirmed by thirty two Acts of Parliament; and in the two and fortieth of Edward the third, in the first Chapter enacts; If any Statute be made to the contrary, it shall be holden for none, and so it is for Judgements at Law, in the 25. of Edward the 1. chap. 1, 2. The Great Charter is declared to be the Common Law of the Land. Fourthly, they endeavour to take away by their Propositions, the Government of Bishops, which is as ancient as Christianity in this Land, and the Book of Common-Prayer settled by five Acts of Parliament, and compiled by the Reformers and Martyrs, and practised in the time of four Princes. Fifthly, these Propositions taking away from His Majesty all his power by land and Sea, rob him of that which all his Ancestors, kings of this Realm, have enjoyed. That Enjoyment and Usage makes the Law, and a Right, by the same to His Majesty. They are against their own Protestation made this Parliament, (viz.) to maintain His Royal person, Honour, and Estate; They are against their Covenant, which doth say, that they will not diminish His Just Power and Greatness. For these Reasons His Majesty hath left them, and as i● believed, will refuse to agree to the said Propositions, as by the Fundamental Law of the land he may (having a Negative Voice) to any Bills proposed. The result of all is, upon the whole matter: That the king thus leaving of the Houses, and his Denial to pass the said Propositions, are so fare from making him a Tyrant, or not in a condition to Govern, at the present; That thereby he is rendered a Just, Magnanimous, and pious Prince: so that by this it appears clearly to whom the Miseries of these Times are to be imputed. The remedy for all, is, an Act of Oblivion, and a General pardon. God save the KING. DAVID, JENKINS, now Prisoner in the Tower. 28, Aprilis, 1647. THE CORDIAL OF JUDGE JENKINS, For the good People of LONDON; In Reply to a thing, called, AN Answer to the Poisonous Seditious Paper of Mr David Jenkins; By H.P. Barrister of Lincolns-Inne. Printed in the Year, 1647. The Cordial of Judge Jenkings for the good People of London, etc. After the said Mr H.P. hath made a recital of the Heads of my Vindication, he deduceth his Answer unto these eight Particulars, which follow verbatum. 1. It cannot be denied, but the Parliament sits by the King's Writ, ●ay if Statute Law be greater than the King's Writ, it cannot be denied but the Parliament sits or aught to sit by something greater than the King's Writ; And, if it be confessed that the Parliament sits by the King's Writ, but does not Act by the King's Writ, than it must follow that the Parliament is a void vain Court, and sits to no purpose; nay it must also follow, that the Parliament is of less authority, and of less use than any other inferior Court; forasmuch as it is not in the King's power to control other Courts, or to prevent them from sitting or Acting. 2. This is a gross non sequitur, the King's power is in himself; Ergo, it is not derived to, nor does reside virtually in the Parliament. For the light of the Sun remains embodied, and unexhausted in the Globe of the Sun, at the same time as it is diffused and displayed through all the body of the ●yre; and who sees not that the King without emptying himself, gives commissions daily of Oyer and Terminer to others, which yet he himself can neither frustrate nor elude? but for my part I conceive it is a great error to infer that the Parliament has only the King's power, because it has the King's power in it: for it seems to me, that the Parliament does both sit and act by concurrent power, devolved both from the King and Kingdom; And this in some things is more obvious and apparent then in others. For by what power does the Parliament grant Subsidies to the King? if only by the power which the King gives, than the King may take Subsidies without any grant from the Parliament: and if it be so by a power which the people give to the Parliament; Then it will follow the Parliament has a power given both by King and 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 du●. God himself has not utterly disdained to beseech his own miserable impious unworthy creatures: besides, 'tis not our Tenet, that the King has no power, because he has not all power, nor that the King cannot at all promote our happiness, because he has no just claim to procure our ruin. 4. We affirm not, that the King's power is separated from his Person, so as the two Spencers affirmed, neither do we frame conclusions out of that separation, as the two Spencers did, either that the King may be removed for misdemeanours, or reform per aspertè or that the Subject is bound to govern in aid of him; we only say, that his power is distinguishable from his person, and when he himself makes a distinction betwixt them, commanding one thing by his Legal Writs, Courts, and Officers, and commanding another thing extrajudically 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 only say it is not proper to him quarto modo: For if the King pardon him which hath murdered my son, his pardon shall not cut me off from my appeal; and 'tis more unreasonable, that the Kings pardon should make a whole State, which hath suffered, remediless, than any private man. So if the King should deny indemnity to these which in the fury of War have done things unjustifiable by the Laws of Peace, and thereby keep the wounds of the State from being bound up, 'tis equitable that an Act of Indemnity should be made forcible another may. And if this 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 govern: but this 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 'tis 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 subturfuge. 7. We swear, that the King is our supreme Governor over all persons, and in all Causes; but we do not swear that he is above all Law, nor above the safety of his people, which is the end of the Law, and indeed Paramount to the Law itself. If he be above all Law, or liable to no restraint of our Law, than we are no freer than the French or the Turks; and if he be above the prime and of Law, common safety, than we are not so free as the French or Turks: For if the total subversion of the French or the Turk were attempted, they might by God's Law, imprinted in the Book of Nature, justify a self-defence; but we must remedilesty perish, when the King pleases to command our threats. Besides, how achieved the King of England such a Supremacy above all Law and the community itself, for whose behoof Law was made? If God's donation be pleaded, which is not special to him, or different from what other Kings may pretend to●, then to what purpose serve our Laws, nay, to what purpose serve the Laws of other Countries? for by this general donation, all Nations are condemned to all servitude as well as we. If the Law of this Land be appealed to, what Books hath Mr jenkin's read, where hath he found on't that Lex Regia, whereby the people of England have given away from themselves all right in themselves? Some of our Books tell us, that we are more free than the French; that the King cannot oppress us in our our persons, or 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 Superior: But all this is nothing to learned Mr jenkin's. 8. We admit, that no Acts of Parliament are complete, or formally binding, without the King's assent: yet this is still to be denied, that therefore without this assent particularly expressed, the two Houses can do nothing, nor have any virtual power at all, no, not to examine Mr jenkin's, nor to do any other thing of like nature, though in order to public justice and safety. I have done, and wish Mr jenkin's 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 Pie-powders, Court-Baron, Hundred Court, 5 H. 4. c. 3. 3 H. 6.46. 1, H 6.43. 35 H. 6.5. County Court, and every other Court of Record, or not of Record, hath power to examine upon oath; and an examination without Oath is a communication only; examination in Law is upon Oath. There is no Court without a power of trial; the House of Commons have no power to try any offence, Sir Anthony Maynes case, Cook 5. pars, Reports, Lit. 2. lib. Sect. 194.6. H. 4.1. nor ever practised it by Bill, Indictment, Information, Plaint or Original, to deduce it to trial, 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 attain to no reasonable end, the Law rejects as a thing inutile and useless; Sapiens incipit a fine. The Writ Whereby they are called gives them power A● faciendum & consentiendum; to what? to such things Que ibidem de communi Consilie ordinari contigerint, 4 pars, instit. fol. 4. & 9 (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 choosing Knights, etc. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peers of the Kingdom, for and touching the great concernments of the Commonwealth (for the King never sits in the House of Commons;) and this also is made evident by the Writs to the Prelates, Peers, judges, and to his Council at Law; the words in their Writ are, To appear and attend the Parliament, consilium impensuri, the one doth consulere, the other facere & consentire. The House of Lords, where the King sits in person, 7. H. 6.28. 1 H. 7.20. 13. E. 3. ca 5. 4 pars, instit. pag. 21. assisted by his Lords, Judges, Sergeants, Attorney, Solicitor, Masters of the Cnancery, is a Court of Record to many purposes, set down in the Books of Law and the Statutes of the Land, and that Court is only in the House of Lords, where the Kings sits. A Court must either be by the King's Patent, Statute Law, or by the Common Law, which is common and constant usage; the House of Commons hath no Patent to be a Court, Ploughed. Com. 319. nor Statute Law to be a Court, nor common usage; they have no journal Book but since E. 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 less for Treason; that House which cannot do the less, cannot do the greater. It is ordained, 25. E. 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 Council, but upon Indictment or presentment of his good and lawful Neighbours, where the deed is done, or by original 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 Foresta, are declared by the Stat. of 25. E. 1. c. 1. to be the Common Law of the Land. All judges and Commissioners are to proceed, Secundum legem & consuetudinem Regni Anglia, as appears by all proceed in all Courts, and by all Commissions: and therefore the House of Commons by themselves, proceeding not by Indictment, Presentment, or Original Writ, have no power to imprison men, or put them out of their Franchise. This no way trenches upon the Parliament; for it is in Law no Parliament without King and both Houses; 4 pars. Instit. pag. 1. 3 Pars, Instit. p. 23. I have only in my Paper delivered to Mr Corbet, applied myself to that Committee, that they had no power to examine me, 12. ●. 7.20. Prince's case, 8 Parson, Cook. 1 Pars, Instit. p. 159. 14. H. 8.3. Dier, 38. H. 8.60. 1 Pars, Instit. p. 19 b. but I never thought, said, or wrote, that the Parliament had no power to examine me: the Law and custom 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 itself hath no such power. For the Lord Cooks relation, that the House of Commons have imposed Fines, and imprisoned men in Queen Elizabeth time, and since; Few facts of late time never questioned, make no legal power nor Court; 4 Pa. Instit. ca Parl. à facto ad jus is no good argument; for the words of the Statute of 6. H. 8. c. 16. that a licence to departed from the House of Commons for any Member thereof is to be entered of Record in the Book of the Clerk of the Parliament, appointed, or to be appointed for that House, doth not conclude that the House of Commons is a Court of Record. 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 maxim in all Laws, Lex aliud tranctans nil probat, the word (Record) there mentioned, is only a memorial of what was done and entered 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, Fitzh. Nat. Br. 70. Fitzh. Nat. Br. 13. 12. H 4.23. 34. H. 6.49. Recordari facias loquelam, etc. 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, etc. and yet the Court of ancient Demesne is no Court of Reco●d; and so of a Court Baron, the Law and custom of England must be preserved, or England will be destroyed, and have neither Law nor custom. Let any man show me, 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 Seal. Sir Giles M●mpessau, Michael, and others of late were condemned by the prosecution of the House of Commons in King James his time; did King James ever contradict it? And so of ancient times, 4 Parson, Inslit. Tit. Parliam. pag. 23. where the House of Peers condemned the Lord Latimer in 50. E. 3. the Kings pardon freed him: which shows clearly, that the Kings express or employed assent must of necessity be had to make a Delinquent. The Geatleman saith, That the Parliament sit●, or aught to sit by something greater th●n the King's Writ, etc. No Parliament did ever sit without the King's Writ, nor could ever Parliament begin without the King's presence in person, 4 Parson, Instit. pag. 4. & 6. or by a Guardian of England by pacent under the King's Great Seal, the King being in relatif, or by Commission under the Great Seal to certain Lords representing the King's person, and it hath been thus in all Ages unto this Session of Parliament, wherein his Majesty hath been pressed, and hath passed two Acts of Parliament, one for a Triennall Parliament, and another for a perpetual, if the Houses please, to satisfy their desires; ●ow these two Acts agree one with another, and with the Statute in E. the thirds time, where Parliaments are ordained to be holden every year, 4 E. 3. c. 14. 36. E. 3. c. 10.21. jac. the Act of Limitation of Actions, cap. 26. and what mischiefs to the people of this Land such length of Parliaments will produce by protections and privileges 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 men's actions against them, by reason of the Statute of Limitations, which confines their actions to certain years, and many other inconveniences of greater importance, is easy to understand. How can any man affirm, that the two Houses do act now by the King's Wry, which relates to Counsel and Treaty with the King, concerning the King, the defence of his Kingdom, and of the Church of England, 4 Parson, Instit. p. 14. these are the three points which it tends to, as appears by the Writ. They keep their King prisosoner at Holnby, and will not suffer him to consult and treat with them. Vow and Covenant, p. 11. 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 to defend the King's Kingdom or their Kingdom? When by their Solemn League and Covonant they extirpate Bishops, Deans and Chapters root and branch, is this to defend the Church of England? (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; 3 Pars, Cook● Deane and Chapter of Norwich. to destroy and defend the Church are very contrary things; the Church is not descended, when they take away and sell the Lands of the Church. The Gentleman saith, The King cannot control other Courts of Justice, or prevent them from sitting or acting, and therefore not the two Houses, etc. It is true, the King cannot control 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 Laws. 14 H. 8.3. 36 H. 8. Dier. 60. The Houses make no Court without the King, they are no body corporate without the King, nor Parliament without the King, they all make one corporate body, one Court called the Parliament, 4 Parson, Instit. pa. 1. whereof the King is the head, and the Court is in the Lord's 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 wa● against the King, and imprisoning of him, have made the Statute for not dissolving, adjourning, or proroging this Parliament of no effect, by the said Acts of their own; they sit to no purpose without his assent to their Bills, they will not suffer him to consult with them, and treat, and reason with them; whereby he may discern what Bills are fit to pass, and what not, which in all Ages the Kings of this Land have enjoyed as their undoubted Rights, and therefore they sit to no purpose by their own disobedience and fault. For the ordinary Courts at Westminster, 27 H. 8. c. 24. 28 H. 8.11. Dier. the judges in all those Courts are judges by the King's Patent or Writ, otherwise they are no judge: the Houses can make no judges, they are no judges at all who are made by them; the whole & sole power of making judges, belongs to the King: the King cannot control or prevent his own judges from sitting or acting, but the Houses he may, for they are not the King's judges, but the judges of the two Houses. 2 R. 3.11. In his other Courts, the King commits his power to his judges by his Patent, and they are sworn 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 control; but the King is both judge and Controller in the Court of Parliament: Quoad Acts, for his assent or dissent doth give life or death to all Bills. Many Lawyers have much to answer to God, this Kingdom, and to posterity, for puzzling the poor of this Land with such Fancies, as the Gentleman who wrote the Answer to my Paper, and others have published in these Troubles, which hath been none of the least causes of the raising and continuing of them: And so I have with the first part of his Answer. AD. 2. For the Non sequitur, in the second Section of the Gent. Answer, the Antecedent and the Censequent are his own. Quem recitas meus est (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 King's power cannot be derived to others, or the virtue of his power: For his power, and the virtue of his power, is in all Patents to his judges, in Charters to Corporations, in Commissions of all sorts, and in the Parliament assembled by force of his Writ of Summons, so long as they obey him; but when they renounce that power, and 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 Authority, as the two Houses now do, no reasonable man can affirm that they act by the power of their prisoner, who hath no power to give them, that by force of Arms take all the power to themselves. The Gent. saith, the King grants Commissions daily of Oyer and Terminer, which he cannot frustrate nor ●lude. 4 E. 4.39. 5 F. 4.4. 1 Eliz, Dyer 165. 1 Mar. Brooks case, 447. The King may revoke and discharge the Commission by his Writ, as he may remove all judges, and place other men in their room; and any King's death determines all the judge's Patents of Westminster Hall, Commissions of Oyer and Terminer, etc. and so he might dissolve both Houses in all times, by his Writ under the Great Seal, until that by this Parliament, by his own concession, the King of his goodness hath secluded himself; which goodness hath been full ill requited. The Gent, affirms, 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. The mistaking of this word (Parliament) hath been mischievous in these times to this Land, 4 Parson, Instit. pag 1. 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 the Kingdom, who were Temporal Peers before the Troubles; there are not now above 30 in the Lord's House, and in the House of Commons about 200 of the principal Gent. of the Kingdom left the House, and adhered to his Majesty, who is imprisoned by them, shows no such candour as is to be desired. It is true, that no Tallage can be laid upon the people of this Land, 25. E. 1. confirmatio chartarum, cap. 6. 34. E. 1. cap. 1. de Tallagio non concedendo. but by their consent in Parliament, as appeareth by the Laws mentioned in the Margin; but you shall find in Mr Sultan's learned Book, called Mare Clausum, a number of Precedents in Henry the Thirds time for Ship-money, justly condemned this Parliament, to the which his Majesty assented; and in truth, that Ship-money was condemned before, by the said two Statutes of 25. E. 1. & 34. E. 1. de Tallagio non concedendo. Danegelt, Englitery, and many grievous burdens were laid upon the people, and born, until that memorable Prince's time. But I am of opinion, that the Common Law of the Land did always restrain Kings form all Subsidies and Tallages, but by consent in Parliament; which doth appear by Magna Charta the last chapter, where the Prelates, Lords, and Communality 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 ancient time Parliaments rarely granted any, unless it were in the time of foreign Wars; and in my time, Q●. Elizabeth refused a Subsidy granted in Parliament, and in the Parliament of ● Jac. none were granted. The Gent. should make a conscience of blinding the people with such untrue colours, to the ruin of King and people. AD. 3. The Gent. affirms, That the sonding Propositions to the King, and desiring his concurrence, is carce worth an answer, for Sub, ects may humbly petition for that which is their strict right and property, etc. The Propositions sent to Newcastle, are in print; wherein the two Houses are so fare from humbly petitioning, that they style not themselves his Majesty's Subjects, as appears by the Propositions. That they have a strict right or property to any one of these Propositions, is a strange assertion, every one of them being against the Laws now in force: Have the two Houses a strict right and property, to lay upon the people what Taxes they shall judge meet? To pardon all Treasons, etc. that is one of their Propositions. Have they a strict right and proporty to pardon themselves? and so for all the rest of their Propositions. These Propositions have been Voted by both Houses, 12 H. 7.20. 1 jac. cap. 1. 1 Car. cap. 7. the King's assent (the● being drawn into Bills) makes them Acts of Parliament: Hath the King no right to assent or disassent? Was the sending but a Compliment? All our Law-Books and Statutes speak otherwise. This Gent. and others, must give an account one time or other for such delusions put upon the people. AD. 4. The Gent. saith, They affirm not, that the King's power is separated from his person, so as the two Spencers affirmed, etc. His Majesty's person is now at Holnby under their Guards; have they not severed his power from him, when by no power they have left him, he can have two of his Chaplains, who have not taken their Covenant, to attend him for the exercise of his Conscience? For the three Conclusions of the Spencers, 15. Ed. 2. Exilium Hugonis 1 E. 3. c. 2. Calvin's case. 7 Parson, Reports, 11. do not the two Houses act every of them? They sa●, his Majesty hath broken his Trust, touching the Government of his people: They have raised Armies to take him, they have taken him, and imprisoned him; they govern themselves; they make Laws, impose Taxes, make judges, Sheriffs, and take upon them omnia insigna summae p●t●statis: Is not this to remove the King for misdemeanours, to reform per aspertè, to govern in aid of him; the three Conclusions of the spencers? Do they think the good people of England are become stupid, and will not ●t length see these things? The Gentleman saith, They do not separate his power from his Person, but distinguish it, etc. His power is in his legal Writs, Ploughed. 4. Eliz. 213. the King's power and his Person are indivisible. Courts, and Officers: when they sergeant the Great Seal, and seal Writs with the same, make judges themselves, Courts and Officers, by their own Ordinances against his consent, declared under his true Great Seal of England (not by word of mouth, letter's, or ministers only) their Seal is obeyed, their own Writs, their own judges, their own Courts, their own Officers, and not the Kings: The time will come when such strange actions and discourses will be lamented. AD. 5. The Gentleman goes on, We take not from the King all power of pardoning Delinquents, we only say it is not proper to him quarto modo, etc. What do you mean by quarto modo? I am sure, Omnis Rex Angliae, solus Rex & semper Rex can do it, and none else; read the Books of the Law to this purpose collected by that reverend and learned judge Stanford, Stanfor. Plcas 99 27 H 8. c. 24. Dier, 163. from all Antiquity to his time, who died in the last year of King Philip and Queen Mary's Reign, you shall find this a truth undeniable; and this power was never questioned in any Age in any Book by any until this time, that every thing is put to the question: You Gentlemen who profess the Law, and maintain the party against the King, return at length, and bring not so much scandal upon the Law, (which preserves all) by publishing such incredible things. We hold only what the Law holds, the King's Prerogative and the Subjects Liberty are determined, and bounded, and admeasured by the written Law what they are; 1 Pars, Inst●t. pag. 344. Ploughed. 3. Eliz. 236, 237. we do not hold the King to have any more power, neither doth His Majesty claim any other but what the Law gives him; the two Houses by the Law of this Land have no colour of power, either to make Delinquents, or pardon Delinquents, the King contradicting: (and the Army under Sir Thomas Fairfax (howbeit but Soldiers) do now understand that to be Law, and do now evidently see and assuredly know, that it is not an Ordinance of the two Houses, but an act of Parliament, made by the King, Lords and Commons that will secure them, and let this Army remember their executed fellow Soldiers,) And the Law was always so taken by all men until these troubles, that have begot Monsters of opinions. AD. 6. This Gentleman says, The Parliament hath declared the King to be in no condition to govern, etc. There is no end of your distinctions, I and you profess the Law; show me Law for your distinctions, or letter, syllable, or line, in any Age in the Books of the Law, that the King may in one time be in no condition to govern, and yet have the habit of governing, and another time he may (viz.) when the two Houses will suffer him: The Law saith thus, Vbi lex non distinguit, non est distinguendum. He says, The King is not barred from returning to His Parliament, (as he calls the two Houses) he knows the contrary, the whole City knows the contrary, Nos juris consulti sumus sacerdotes, (as Institian the Emperor hath it, in the first Book of his Institutions) and therefore knowledge and truth should come from our lips: Worth) and ingenious men will remember, and reflect upon that passage of that good and wise man Seneca, Non qua itur, sed qua eundum; follow not the rays of the Lawyers of the House of Commons: God forgive them, I am sure the King will, if they be wise and seek it in time. AD. 7. The Gent. says, We swear that the King is our supreme Governor over all persons and in all causes, etc. Why hath he lest out the word (only)? for the oath the Members now take, is, that King Charles is now the only and supreme Governor in all causes, over all persons, 5 El●z. cap. 1. Cawdreys' case 5 pars, fol. 1. and yet they keep their only Supreme Governor now in prison, and act now in Parliament by virtue of their Prisoners Writ, and by a concurrent power in this Parliament, and by their own strict right and property, (as the Gent. This Oath is allowed by the Common L●w of the Land affirms in his Answer) These things agree well with their Oath, that the King is the only Supreme Governor in all causes, over all persons; this Oath is taken now in 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 public Affairs. This Oath being taken in Parliament, that the King is the only and Supreme Governor in all Causes, than it follows in Parliament causes; over all persons, then over the two Houses; let them keep this Oath; and we shall be sure of peace in the Land: and good Lawyers ought to desire peace, both for the public good and ●heir private, and not dishonour that Noble profession, as many do in this miserable time. The Gent. says, We do not swear that the King i● above all Law nor above the safety of his people; neither do we so swear, but His Majesty and we will swear to the contrary, and have swom, and have made good, and will by God's grace make good our Oath to the world, that the King is not above the Law, nor above the safety of his people; the Law and the safery of his people are his safety, his Honour and his Strength. AD. 8. The Gent. concludes, That Acts of Parliament are not formally binding, nor complete without the King's assent, yet the Houses have a virtual power without the King's particular assent, to do things in order to public justice and Safety, (viz▪) In setting up the Excise, in raising and maintaining of Armies, in taxing the peo-people at pleasure with Fifth and Twentieth part, Fifty Subsidies, Sequestrations, Loans, Compositions, imprisoning the King, abolishing the Common-prayer-Book, selling the Church's Lands etc. all these are in order to the public 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 persuade yourself and others, as much as in you lies, to believe and follow the monition and Council of that memorable, reverend, and profoundly learned in the Laws and Customs of the Land, the Lord Coke, who writes as becomes a great and a learned Judge of the Law (a person much magnified by the two Houses) in these words? Peruse over all Books, Records and Histories, and you shall finds a Principle in Law, 3 Pars, Instit. p. 36. a Rule in Reason, and a Trial in Experience, that Treason doth over produc● futall and final destruction to the offender, and never attains to the desired and (two incidents inseparable thereunto) and therefore l●t all men abandon it, as the poisonous hait of the Devil, and follow the Precept in holy Scripture, SERVE GOD, HONOUR THE KING, AND HAVE NO COMPANY WITH THE SEDITIOUS. CONCLUSION. I Say again, that without an Act of Obliviow, a gracious general Pardon from His Majesty, the Arrears of the Soulaiers paid, a regard had to tender Consciences, there will be neither Truth nor Peace in this Land, nor any man secure of any thing be hath: By me David Jenkins Prisoner in the Tower. The End. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament. AND THE JUDGEMENT OF THE LAW OF THE LAND In that Behalf. By DAVID JENKINS now Prisoner in the Tower of LONDON. Printed in the Year, 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament. 1. Aerpetuall Parliament is repugnant to the Act made this Parliament for a Triennial Parliament; for how can every three years a Parliament begin, if this be perpetual, which may be so if the two Houses please? 2. An adjournment of the Parliament makes no Session, 4 Parson, Institut. fol. 27. Howbeit, before the Adjournment, the King gives His Royal assent to some Bills. Cook, ibid. 3. There is no Session till a prorogation or dissolution of the Parliament. 4. This Parliament, as appears by the Act for not dissolving thereof, set down in the Printed Statutes of this Parliament, fol. 138. cannot be prorogued but by Act of Parliament. There hath been as yet no Act of Parliament present, and therefore all the Acts of this Parliament, are Acts of one Session. 5. All the A●●● of one Session relate to the first day of the Parliament, Blow ● come. 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier. 1 Mariae 45. and all the Acts of such a Pa●liament are Acts of one day; so the Act for the Triennial, and the Act for this Perpetual, are two Acts of one day by the Law. 6. 4 Ed. 3. cap. and 36 Ed. 3. cap. 10. A Parliament is to be holden once every year, and more often if need▪ shall be▪ those Acts are confirmed by the Act for the Triennial Parliament. How doth a perpetual Parliament agree with a Parliament once every year, or with the intention of those Laws? 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; at one 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 Triennial 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, 8 Parson, Doct. bonham's case fol. 118. 8 Ed. 3.30. 33 E. 3. cessavit, 32. 27. H. G. Annuity 11. 14 Eliz. Dier, 313. or repugnant, or impossible to be performed, the Common Law shall control it, and adjudge this Act to be void; they are the words of the Law. An Act of Parliament, that a man shall be Judge in his own cause, is a void Act. 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 do any Subject wrong by diffeising 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 privilege of Parliament, and that extended also to many others besides themselves. Common Right doth abhor these enormities, which a perpetual Parliament doth beget, besides the utter destruction of all men's actions, real, personal, or mixed, who have to do with Parliament men, 21 Jac. by the Statute of Limitation, which confines suits to certain years. For Common Reason. Parliaments were ordained for remedies to redress public grievances; It is against Reason they should make public and insufferable grievances. The Law of the Land allows no protection for any man employed in the service of the Kingdom but for a year, to be free from suits, and in many suits none at all, howbeit he be in such service; 39 H. 6.39. but a Parliament perpetual may prove a protection, not for a year, but for ever, which is against all manner of Reason. For Impossibility. The death of His Majesty (whose life God prolong) dissolves it necessarily; For the Writ of summons is, Carolus Rex in hoc individuo, and Carolus Rex is in this particular, Habiturus colloquium & tractatum cum Prelatis & proceribus, etc. 2 H. 5. Cook Title Parliam 3. pars. King Charles being to have Conference and Treaty with his Prelates and Peers; Carolus Rex cannot have Colloquium & tractatum, Conference and Treaty, when he is deceased; and therefore it is 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 ever, it is repugnant. The end of the Act of 17. Caroli Regis, which is to continue at pleasure, is in the said Act expressed to be to raise credit for money for these three purposes. First, for relief of his Majesty's Army and people in the North. Secondly, for preventing the imminent danger of the Kingdom. Thirdly, for supply of other His Majesty's present and urgent occasions. These ends are ended, the relief of that Army, the imminent danger supposed was six years ago, the supply of His Majesty hath been a supply against him, take away the end, the means thereto are to no purpose, 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, Sir Anthony Mayns case. 5. pars, 1. H. 4.6. Littl. cap. Villain. the Law rejects things unprofitable and useless. A perpetual Parliament (besides that it incites men to selfe-ends, destructive of the public of which the whole Kingdom hath had sufficient experience) willbe 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-Townes in each County of this Kingdom, who being to maintain two Burgesses in Parliament, will be quickly beggared, 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 aught to be the proper and true end of Parliaments) 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 if for three purposes. Rex est habiturus colloquium et tractatum cum praelatis, magnatibus et proceribus super arduis negotijs, concernentibus, 1. Nos. 2 Defensionem regni nostri 3. Defensionem Ecclesiae Anglicanae. This Parliament hath overthrown this Foundation in all 3 parts, 1. Nos. the King, they have chased him away, and imprisoned him; they have voted no prelates, and a number of other Lords, about 40. in the City must not come to the House, and about 40, more are out of Town, the colloquium et tractatus are made void thereby. For the King cannot consult and treat there with men removed from thence. 2. Defensionem regni nostri, that is gone; they have made it their Kingdom, not His, for they have usurped all His Sovereignty. 3. Defensionem Ecclesiae Anglicanae, that is gone, that Ecclesia Anglicana trust 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 process is void also: that House must needs fall, where the Foundation is overthrown, Sublato fundamento opus cadit, the Foundation being taken away, the work falls, is both a maxim in Law and Reason. For some years past, there is no crime from Treason to Trespass, but they are guilty of: all Treason, Felonies, Robberies, trespasses are contra pacem, coronam, et dignitatem Regis, against the Peace, Crown and Dignity of the King; as appears by all Indictments in all Ages. Pax Regis the King's Peace, Corona Regis, the King's Crown, Dignitas Regis, the King's Dignity, are all trod under foot, and made nothing; Pax Regis, the Peace of the King is become a War against the King, His Dignity put into prison, and the Crown put upon their own heads. All the Judges of England have resolved, nevil's ease 7. part, 34. 2. Jacobi. that Noblemen committing Treason have forfeited their Office and Dignity, their Officei●s to council the King in time of Peace, to defend him in time of War, and therefore those men against the duty and end of their Dignity taking not only Council, but Arms also to destroy Him, and being thereof attaint by due course of Law by a racite condition annexed to the estate of their Dignity, have forfeited 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, aught 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 Felony, or any thing but for the disturbance of the public Peace, by the privilege of the whole body. They have no power by the Writ, which the King issueth to elect and return Members of that House, so to do. For the Writ for them is only ad faciendum et consentiendum to those things, whereof His Majesty shall consult and treat with his Prelates and Nobles, et de communi consilio Regni shall be there ordained, as appears by the Writ. Here is no separate power given over the King's people to them, but only ad faciendum et consentiendum, 4 Pars. institut. 23.24.25. and in all times this hath been expounded and restrained to that which concerned their own Members in Relation to the public Service, as he is a Member of the corporate body of the Parliament, whereof the King is the Head. But that the House of Commons have committed 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. 19 H. 6.43. 22. E. 4.22. 5 H. 4. cap. 8. 3 H. 6.46. All Questions and trials where witness are examined, the examination is upon oath by the Law, by all our Books, Statutes, every day's practice. Examination without an Oath, is but a lose discourse; therefore the House of Commons not claiming power to give an Oath, have no power to examine any man. No man shall be imprisoned by the King or His Council, unless it be by Indictment, 25 E. 3. c. 1. Petition of Right. 3 Car. presentment of his good and lawful 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, pag. 29. and expounds Lex terrae, the Law of the Land there mentioned: This Law binds all men, and the House of Commons (for they say they are of the King's Council) in all points, but only against the disturbers of the service of the Parliament; and therefore the imprisonment of several persons who are not their Members, and for no disturbance to their Members, is utterly against the Law of the Land, and the franchise of the Freemen of this Realm. Cui non licet quod minus, non ●eet quod majus; he who may not do what is less, may not do what is greater; they cannot commit a man for murder or Felony, much less for Treason. No Court can fine and imprison, but a Court of Record, the House of Commons is no Court of Record, 8 Parson, Cook 120. 27 H. 6.8. the House of the Lords where the King is in his Person, his Nobles and his Judges, and Council at Law, the Masters of the Chancery assisting, is a Court of Record, and that is the Court of Parliament, where the colloquium & tractatus is. The House of Commons may present grievances, grant or not grant aids, consent or not consent to new laws, but for fining and imprisoning any but as aforesaid, is but of a late date, and no ancient usage: They have no Journal Book, but since Edw. 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 entered on Record in the Book of the Clerk of the Parliament, if any Member departed into the Country. There is no Journal there but since Ed. 6. time, or it is a remembrance or memorial, as 12 H. 4.23. The whole Parliament is one corporate body, 14 H. 8.3. 36 H. 8. Dier 60. 4 Pars Instit. cap. 1. consisting of the Head and three Estates: The Court is only there where the Consilium & tractatus is, where the consult and treaty is with the King, which is in the House of Lords only. The House of Commons claim not to examine upon oath any man; no Court can be without a power to give an oath, Courts Baron, Court of Pipowders, County-Court, may and do give oath: No Court can be without a power to try, no trial 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 always uncovered, and standing when the Lords sit with their hats on, which shows they are not Colleagues in judgement, for fellow Judges own no such Reverence to their Companions. When was ever Fine imposed by the House of Commons estreated in the Exchequer? 11 H. 4. c●. ●. 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 less a man returned duly. By these Laws it appears, 〈◊〉 H. 4. cap. 1. 1 H. 5. cap. 1. 8 H. 6. cap. 7. 23 H. 6. cap. 15 that if any undue return be made, the person returned is to continue a Member, the Sheriff's punishment is 200. pound, one to the King, another to the party that is duly elected, imprisonment for a year 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 foendorum Militum, Civium & Burgensium Parliament. and the trial of the falsity of the return, is to be before the Justices of Assizes in the proper County, or by action of debt in any Court of Record. This condemns the Committee for undue elections, which hath been practised but of late times; 3 Ed. ●. 20. 5 Ed. ●. 41. for besides these Laws, it is against a maxim of the Common law; an averment is not receivable against the return of the Sheriff, for his return is upon Oath, which Oath is to be credited in that suit wherein the return is made. The said Statutes condemn and make those members no members, which were not resiant in the County or Boroughs, for which they were elected, at the time 〈◊〉 the rest 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 Parliament Men. If a Parliament man or his Menial Servant be assaulted, beaten, or wounded, in the Parliament time, 5 H. 4. cap 6. 11 H. 6, cap 11. proclamation shall be made where the deed is done, that the offender shall render himself to the King's Bench, within a quarter of a year after proclamation made, and the offence there to be tried, 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 process upon a Lord of the Parliament punished in the Lord's House. Bogo de Clare 18 E. 3. 4 pa●s, Instit. fol. 24. john Thornsbyes' case, Clerk of the Parliam. ibid. 10. E. ●. Serving of process upon Thornsby inquired of in the Chancery, and there the offenders were convicted. The premises prove, that breaches of privilege of Parliament may be punished elsewhere then in Parliament. Upon all this Discourse, it is easy to discern what fruits may be expected from this Parliament, continuing as long as the two Houses please; and that there is no safety for this Commonwealth, but by the Observations of their ancient Franchises, Customs and Laws. CONCLUSION. I Say again, that without an Act of Oblivion, a gracious general Pardon from His Majesty, the Arrears of the Soldiers paid, a regard had to tender Consciences, there will be neither Truth nor Peace in this Land, nor any man secure of any thing he hath. The End. AN APOLOGY FOR THE ARMY, Touching the eight Quaeres upon the late Declarations and Letters from the Army, touching sedition falsely charged upon them. Wherein those Quaeres are resolved, and thereby the present proceed of the Army are proved to be Legal, Just & Honourable. By DAVID JENKINS, Prisoner in the Tower of LONDON. Quis tulerit Gracchoes de seditione querentes. Printed in the Year, 1647. AN APOLOGY FOR THE ARMY. THese Treasonable and insolent Qu●rie● make the Army the Houses Subjects, Bracton fol. 118, Stanford. f. 2 and not the Kings. None by the Laws of this ●and can in this Kingdom have any Army but His Majesty. It appears, the Army doth now evidently perceive, that they were misled by the specious pretencees of Sulus Papuli, the maintenance of the King's Honour, and of the maintenance of the Laws of the Land, and liberties of the Subject, to take up Arms against their natural Liege Lord and Sovereign, the King. The People is the Body, Mag. Char. c. 1. & ultim. All the act concerning the King, Church, and Churchmen. 25. E. 1. c. 1. the King is their Head; was the Body sufe when the Head was distressed and imprisoned? For Laws and Liberties have not the prevailing pa●tie in the two Houses destroyed above 100 Act of Parliament, and in 〈◊〉, Magun Charta, & Chorta de Forest●, which are the common Laws of the Land▪ Doth Excize, Fifth and Twentieth Parts, Meale-money, and many more burdens which this Land never heard of before maintain the Liberties of the people: You, and that party of the two Houses, made the Army by several. Declarations before engagement, believe that you would preserve the King's Honour and Greatness, the Laws and Liberties of the people: The Army and the whole Kingdom ●ow 〈…〉, see your actions, and have no reason longer to bel●eve your Oaths, Vows, and Declarations; and since that party in the two Houses refuse to perform any thing according to their said Oaths, Vows, and Declarations. The Army and the Kingdom may and aught, both by your own principles and the Laws of the Land, pursue the end for which they were raised. And so your first Quaere is resolved, whereby it is manifest, that specious pretences to carry on ambitious and pernicious designs, fix not upon the Army, but upon you, and the prevailing party in both Houses. The Solution of the second Quaere. The Army, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 3. par. Instit. f. 12.39. Eli. 1. jacob. ibi. 2. & 3. E. 6. cap. 2. 11. H. 7. c. 1. to their eternal honour, have freed the King from imprisonment a● Holmby. It was High Treason to imprison His majesty 〈◊〉 Tof●●● His Majesty from that imprisonment was to delive●● Him out of Traitorous mands, which was the Army's bounden duty by the Law of God and the Land. That party refused to suffer His Majesty to have two of His Chaplains for the exercise of His Conscience who had not taken the Covenant, free aceesse wa● not permitted, doth the Army use His Majesty so all men see that access to Him is free, 〈…〉 and such Chaplains 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 party 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 〈◊〉 false: The Army was raised by the two Houses upon the specious pretences of the King's Honour, common safety, and the preservation of Laws and Liberties, which how made good hath been showed before, and all the people of the Kingdom do find by woeful experience. The two Houses are no more a Parliament then a Body without a Head a man. 14. H●●. ●. 36. H. 8. Dier. 60. 4. par. Instit. p. 1.3.12.14. 16. R. 2. c. 1. 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 adjourn themselves; two Houses & a Parliament are several things. Cunct a fidem vero faciunt, all circumstances agree to prove this truth. Before the Norman Conquest, and since to this day, the King is holden Principal, Caput, & finis, that is, the beginning, Head and chief end of the Parliament, as appeareth by the Treatise of the manner of holding of Parliaments made before the Norman Conquest; 4. par. Instit. pag. 12. by the Writ of Sumons of Parliament whereby the Treaty and Parlour in Parliament is to be had with the King only, by the Common Lau● by the Statute-Law, by the Oath of Supremacy, 4. par. Instit. pag. 4.9. 5. Eli. c. 1.2. taken at this and every Parliament, it doth manifestly appear, that without the King there can be no colour 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 public money among themselves, and that party endeavours to bring in a Foreign to invade this Land again: If they be no Parliament, as clearly they are none without His Majesty, they have no privileges, but do exercise an Arbitrary, Tyrannical, 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 lawful for every Subject, who suspects the Offender, 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 public precedent, like to conjure up a spirit of universal disobedience, I pray object not that conjuring up to the Army, whereof you, & the prevailing party in the Houses are guilty; who conjured up the spirit of universal disobedience against His Majesty, your and our only Supreme Governor, 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 Laws of the Land, against the Petition of Right, devised in Scotland, wherein the first Article is to maintain the Reformed Religion in the Church of Scotland: 2. pars. Coll. of Ord. pag. 803. Petition of right 3. Car. 2. pars. instit. 719. And certainly there is no Subject of the English Nation doth know what the Scottish Religion is. I believe the Army took 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 blamable and guilty of the highest Crime. The Writer of these Queries seems to profess the L●wes, let him declare what Act of Parliament doth justify the tendering, 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 maintain which the Law of nature & the Law of the Land had obliged them: Mag. Chart. cap. 1. & Ultimo Articuli cleri, and many other statutes. 16. Ed. 4.10. The Oath of the Covenant makes the Houses Supreme Governors 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 Oaths, and contradict themselves? How d●e the Covenant and the Oath of Supremacy agree? How doth their Protestation and the Covenant agree? How do their Declarations and Oaths agree? The Lord be merciful to this Land for these Oaths. It is a sad thing to consider that so many gentlemen who profess the laws, and so many worthy men in both Houses should be so transported as they are, knowing that the Laws of the Land from time to time, and in all times, are contrary to all their actions, and that yet they should amuse themselves and the people with the word of Parliament, without the King, and with the Covenant; whereas they know they are no Parliament without His Majesty, and that English men throughout the Kingdom should swear a Covenant, to preserve the reformed Religion of Scotland, in Doctrine, Worship, Discipline and Government, which they no more know than the Doctrine, Worship, Discipline and Government of Prester john in Ethiopia: if they consider it, they cannot but discern that this is a high desperate and impious madness. Be wise in time, without the King and the Laws you will never have one hour of safety for your Persons, Wives, Children or Estates: Be good to yourselves, and to your Posterities; apply yourselves to be capable of an Act of Oblivion, and of a general Pardon, and to be able and willing to pay the Soldiery, and to allow a reasonable liberty for m●●● consciences, and God will bless your endeavours, and the people (to whom you are now very hateful) will have you in better estimation. The third Quarie is thus answered. You resemble the Army to jacke Cade and his Complians, and you cite the Act of Parliament of 31. Hen. 6. cap. 1. and that it may appear who acts the Part of jacke 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 large as followeth. First, Whereas the most abominable Tyrant, horrible, odious and arrant false Traitor john Cade, calling and naming himself sometime Mortimer, sometime Cap. of Kent, which name, fame, acts, and feats are to be removed out of the speech and mind of every faithful Christian man perpetually, falsely and traitorously purposing, and imagining the perpetual destruction of the Kings said Person, and final subversion of this Realm, taking upon him Royal power, and gathering to him the, King's people in great numbers, by false, subtle imagined Language, and seditiously making a stirring Rebellion, and Insurrection, under colour of justice, for reformation of the Laws of the said King, robbing, stealing, and spoiling great part of his faithful people, Our said Sovereign Lord the King considering the premises, with many other which were more odious to remember, by advice and consent of the Lords aforesaid, and at the request of the said Commons, and by authority aforesaid, hath ordained and established that the said john Cade shall be reputed; had, named, and declared a false, Traitor to our Sovereign Lord the King; and that all his tyranny, acts, feats; and false opinions shall be voided, abated, annulled, destroyed; & put out of remembrance for ever: and that all enditements and all things depending thereof, had and made under the power of tyranny shall be like wise void, annulled, anated, repealed, and holden for none: and that the blood of 〈…〉 them be thereof defiled nor corrupted, but by the authority of the said Parliament clearly declared for even: and that all enditements 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 Westminster, Noveb. 6. in the 29. of his Reign, against his mind by him not agreed, shall be taken and put in oblivion out of remembrance, undone, voided, annulled and destroyed for ever, as a thing purposed against God and conscience, and against His Royal Estate and preeminence, and also dishonourable and unreasonable. Now we are to examine who hath trod in the step● of Jack Cade, you and the present prevailing party of the two Houses took upon them, and do take all the Royal Power in all things; so did Jack Cade, as appears by the said Act; the Army do not so: They who imprison the King purpose to destroy His Person (our imprisoned Kings always * Edward ●. Henry 6. Richard 2. fared so) Jack Cade did likewise so purpose, but the Army do not so: The said party in the two Houses made a stirring under colour of Justice for Reformation of the Laws; so did Jack Cade: The Army do not so, but desire that the Laws should be observed: Jack Cade levied War against the King, the Army preserves Him: Jack Cade died a Declared Traitor to his Sovereign Lord the King; this Army lives to have the glorious true Honour of being restorers of their King. Simon Sudbury Archbishop of Canterbury was murtheted by Jack Cade i● William Laud Archbishop of Canterbury was likewise murdered by that party of the two Houses, 25 Ed. 3.4. 28 Ed. 3.3. Petition of Right. 3 Car. for that an Ordinance by Law cannot take away any man's life, & his life was taken away by an Ordinance of the two Houses, the Army had no hand in it. Many misled by Jack Cade, perceiving his Traitorous purposes, fell from him; and as that was lawful, just, and Honourable, so it is for this Army to adhere to their natural King, and to endeavour to settle the Kingdom again in the just Laws and Liberties thereof: London did then right worthily adhere to the King and the Laws, and not to jack Cade and his specious pretences, and it is hoped they will now so do: By this it appears, that the Gentleman's Discourse touching jack Cade, fastens altogether on his party, and cleareth the Army. To the iv which is solved thus. The Arrears 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 kind, and is not paid his wages, the desertion of that service is warrantable by the Laws of the Land: Pitz. N. B. 25. 9 Ed. ●. 20. 38 H. 6.27. 23 Eliz. Dier 369. You say, the Houses will reform all things when the Army doth disband; who will believe it? Will any believe that the settling of the Presbytery will do it? Will any believe that his Majesty will pass the Propositions sent to Him to Newcastle? Will any man believe that this Kingdom will ever be quiet, without His Majesty and the ancient and just Laws? 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 Fellows hanged before their eyes, for actions done as Soldiers? Shall the Kingdom have no account of the many Millions received of the Public Money? Will the Members of the Houses accuse themselves? Shall private and public Debts be never paid? Shall the Kingdom lie ever under burdens of Oppression and Tyranny? There is no visible way to remedy all these enormities, but the power of the Army. To the V which is solved thus. The Kingdom hath better assurance of Reformation from the Army, then from the Houses, for that in their Military way they have been just, faithful & honourable, they have kept their words: That party of the Houses have been constant to nothing but in dividing the public Treasure among themselves, and in laying burdens upon the people, and in breaking all the Oaths, Vows, and Promises they ever made: 2 & 3 Ed. 6. cap. 2. 11 H 7. cap. 1. Calvin's case, 7. pars, Cook fol. 11. As the Army hath power, so now adhering to the King, all the Laws of God, Nature, and Man, are for them, their Arms are just, and blessed; and the King is bound in Justice to reward his Deliverers with Honour, Profit, and meet Liberty of Conscience. To the VI Quare. All the sixth Quaere contains Calumnies cast upon the Army; the new elections are against all the Laws mentioned in the Margin, 11 H. 4. c. 1. 1 H. 5. c. 1. 8 H. 6. c. 7. 23 H. 6. c. 15. and are against the ejection of the old Members: and by this it may be judged, what a House of Commons we have. By the said Laws it appears, that if any undue return be made, the person returned is to continue a Member; the Sheriffs punishment is two hundred pounds, one to the King, and the other to the party that is duly elected; imprisonment for a year, 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 feodorum Militum, Civium & Burgensium Parliament. And the trial of the falsity of the return, is to be before the Justices of Assizes in the proper County, or by Action of Debt in any Court of Record. This condemns the Committee for undue elections, which hath been practised but of late times: for besides these Laws, it is a Maxim of the Common Law, 3 Ed. 4.20. 5 Ed. 4.42. an Averment is not receivable against the return of the Sheriff, for his return is upon Oath which Oath is to be credited in that suit wherein the return is made. The said Statutes condemn elections of such men which were not resiant and dwelled in the County or Boroughs for which they were returned; and any abusive practice 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 fingered more of the common Treasure then others: That whole Quaere, I believe, is false and slanderous; 37 E. 5. c. 17. and the Author ought to make it good, or else to undergo the Law of Talton●; which is, to suffer such punishment, failing of his proof, as the accured should, in case of proof made. To the VIII. Quaere. This Quaere is all minatorie and threatening, and the contrary o● every part is true: by the deliverance of the King and Kingdom from the bondage of that party in the two Houses by the Army, their renown will be everlasting; they secure themselves, they content and please the Kingdom, City, and Country, as appears by their confluence to see his Majesty and the Army, and their acclamations for his Majesty's 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 enthralled. Sir Thomas Fairfax, let your Worthiness remember your extraction and your Ladies, by the grace and favour of the Prince, to be in the rank 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 Laws to their strength, and of the afflicted people of this Land to peace: let the Colonels and Commanders under you, and likewise your soldiery, rest assured, that they shall not only share in the renown 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 bless you all, and prosper you. I conclude all, as I have always done: Without an Act of Oblivion, a general Pardon, the Arrears of the soldiery paid, and a regard to Liberty of Conscience, this Kingdom will certainly be ruined. FINIS.