A DECLARATION OF THE POWER OF THE LORDS and COMMONS Assembled in PARLIAMENT Clearing Their Authority to Judge Delinquents for High-Treason, and other high MISDEMEANOURS.  
WITH A Full ANSWER to all Judge Jenkins his Arguments.  
Printed at London by Robert Ibbitson in Smithfield, near the Queens-head Tavern. 1648. Feb. 26:  

Imprimatur,  
Gilb. Mabbot.    

IF in the computation of all times we have had a Parliament unquestionable in substance, in form, in all necessary adjuncts, and now, even now when eclipsed Justice, like the Sun imprisoned under a cloud, breaks forth with lustre, be concluded in defect of Judicature, I say, the stars have had malignant aspects in this our Horizon.  
Anima est tota in toto, & tota in qualibet parte. Judicature in the Soul of this great compacted body, and enjoys that diffusive property.  
The power of Judicature must be founded upon a preparatory Impeachment, and this prepatory Impeachment must be framed by the Commons House, who must justify themselves not guilty of the title of fools by the Wiseman, to lay a foundation and never consider by what means the structure is to be finished; nay, excuse themselves from that general remonstrance of a general Grievance, extrajudicial Proceed.  
The Lords are Peers of the Realm, the Commons are an House of the Parliament; the health of these will much advantage the preservation of the whole Compound; nay, on the contrary, the Gout is as mortal and dolorous as the Headache.  
Beside their commenced proceeding, against the parties impeached of high Treason, though seasoned with much moderation and temper, are of rige age, and blush to be kept in long coats, which are now suspended; by which misinterpreted rumour of our Jurisdiction drawn into question the Commons of this Kingdom openly proclaim, That to be excessive vicious is to be secure, and that facts of Treason are above the cognisance and punishment of the Acts of Reason, and the Laws and Statutes of this Kingdom.  
Survey this High Court of Parliament. Parliament, did I say? From what radix? Parlour le men's, the speech of the mind. This must be attended with judgement and reason; but I think we speak with none of these, if we cannot maintain our Jurisdiction: This is its Etymology, which is warranted by the best Antiquary of his time, Vetusto nomine, e Gallia mutato, Parliamentum dicitur.  
This High Court hath not been confined to this individual appellation, but hath been christened by several godfathers.  
Majores nostri Anglo-Saxones entitled it, Prudentum Conventus, Concilium, Magnus Conventus. Succeeding Historiographers, Commune Concillum, Curta Altissima, Generale Placitum, Curia magna, Magnatum Conventus, Commune totius regni Concilium, Praesentia Regis, Praelatorum, Procerumque collectorum.  
But certainly, if they intended these flourishing titles to a Parliament without Judicature, they spoke of their riding to Parliament, not sitting in it.  
An unhappy Parliament: like the City Myndas, whose gates were so wide, that the City might run out of them.  
To allow these to be synonyma's of Parliament, and to disallow Judicature, were but heathen-like to confess the Jews to be the people of God, and yet fight against them.  
Neither are these up-started Titles, or new-bought Coats of Arms that this High Court blazons. No they are venerable for their Antiquity, and of most ancient birth and extraction.  
Mulmuccius, of some called Donwallo, did write two books of the Britain's, the one called Statata Municipalia, the other Leges Judiciariae, for so the same do signify in the British tongue, wherein he wrote the same, which is as much to say, as the Statute Law and Common Law, which books were written 441. years before the Incarnation of Christ, and how should there be Statute Laws without a Parliament? King Alfred ordained for a perpetual usage, That twice in the year, or oftener if need be, they should assemble themselves at London. to treat in Parliament of the government of the people of God, how they should keep themselves from sin, should live in quiet, and receive right by holy Laws and Judgements.  
In the Heptarchy, Parliaments had their continuance, witness the stile of Parliaments in the time of Ina King of the Westsaxons: Ego Ina Dei gratia, etc. Congregatione servorum Die sollicitus de salute animarum vestrarum, & statu regni mei, constitui rectum conjugium & justa judicia, pro stabilitate & confirmatione populi mei benigna sedulitate celebrari, & nullo Aldermano, vel alicui de toto regimine nostro liceat conscripta abolere judicia: So did Offa King of the Mercians, and Ethelbert King of Kent.  
In the reign of King Athelston, his Acts of Parliament are styled thus: Haec sunt judicia Exonae quae sapienies Concilio Ethelstani Regis instituerunt, & iterum apud Frefresham & tertia vice apud— ubi haec definita simul, & confirmata sunt. Here I find a Parliament summoned, Concilio Regis, prorogued in those words Iterum & tertia vice, the Royal assent in the words Confirmata sunt, the dissolution Definita sunt.  
King Edgar tells us they are Instituta quae Edgardus Rex concilio sapientum, etc.  
King Etheldred, Hoc est Concilium quod Etheldredus Rex & omnes supien tes, etc.  
King Edmond calls it Conventus Sapientum, Spiritualium & Temporalium.  
The Parliament of King Canutus at Winchefler bore this title; Haec sunt statuta Canuti Regis, Anglorum, Danorum, Norvegarum, venerando ejus sapientum concilio, ad laudem & glorian Dei, & sui regalitatem & commune commodum, babita in sancto natali Domini apud Wintoniam.  
Here we begin to make Land, and descry a visible Title to a Parliament, being in substance and form nearly allied unto the Precedents of these very times; and though some will contest this word [Parliament] bears date but from the third year of Edw. 1. yet (me thinks) those words in the ninth year of Ed. 2. being the immediate successor to Ed. 1. might convince them, viz. Sciatis quod quum dudum temporibus progenitorum nostrorum quondem regum Angliae in diversis Parliamentis suis, etc. which word [Progenitorum] had been improper, if that name had commenced in his father's reighne.  
In one word, time out of mind, this high Court and its Judicature hath flourished before the Conquest, in the Conquest (notwithstanding that silent leges inter arma) and ever since the Conquest, until this present hour.  
Me thinks, I appear as one drawing his Sword, transversing his ground, lying upon his guard, there being neither offence nor opposition.  
You may say, What need you waken so many sleepy Records to prove Parliaments have been? who is it of so desperate an opinion, that offers it in question? What David ap Jenkin, ap Judge?  
Whosoever they were that instilled this jealousy of Judicature into the people's thoughts, did ipso facto subvert Parliaments, and the strong rooted rites thereof.  
Aristotle bids us not to dispute, utrum nix sit alba, and the like visible and apparent truths; but if any Man of an obdurate judgement would have denied that there was Anima Rationalis, then Aristotle must prove there is Homo, and Anima Rationalis, will be drawn in by consequence. Prove Homo prove a Parliament, and Anima Rationalis, which is Judicature, will be drawn in by consequence: besides I am protected by the Verse, Judicis officium est ut res, ita tempore rerum— Quaerere.  
Next I must offer that which the Law hath a tender respect unto, even the ends of Parliament. Exitus acta probat.  
These I find thus to be capitulated by Sir Edward Coke, Primo, ad subditos a delinquendo declinandos, hoc est, ut delicta tam bonis cautisque legibus, tam debita carundam executione anticiparentur: now, if debita executio legum can be in Parliament inflicted upon delinquentes subditos, without legal proceed and trial, (except they will say nothing, and so be pressed to death) I leave it to be argued amongst punies.  
2.  tuta tranquillaque sit vita hominum; but certainly the life of man in not preserved by the impunity of offenders, which must pass sublata judicatura.  
3.  fixis quibusdam sanctionibus sanciisque judiciis jus unicuique fierit; but whether jus implies not punishing malefactors as well as relieving the oppressed Crudelitas parcens, being more destructive to the Commonweal, then Crudelitas puniens) I leave it to be argued among children.  
Fleta saith, a Parliament is called, Terminare dubitationes judiciorum novis injuriis emersis nova constituere remedia, unicuique prout meruerit justitiam retribuere, Treason and Murder is injuria, Death and the loss of the offender's goods is remedium, the end of a Parliament is to apply this remedy. Then our Parliament must have a short cut in trial. We must condemn without hearing of any part, for why should they hear, if they have no power to determine?  
A Parliament than is a structure founded upon the Common laws of England, as is manifest in its proceed upon many trials according to the course of the Common Laws. It is the heir apparent to the Common Law, and parent of the Statute Law. To make this position pass for touch, I will give you the Test of that ancient and learned Author of the book entitled, Mirror de les Justicies, in his own words, Hoc cum sit forum in hoc regno place supremum pars est structurae jurium municipalium, & nonnunquam secundum frequentem illum, & usitatum in lege communi ordinem processus habet.  
Parliaments are the very stars which we must sail by; their Precedents, the miridian sun we must observe to find the Latitude of our proceed by.  
In its Etymology it is Altissima Curia, but how ill-favouredly this name becomes it, if one Justice of Assize may hear and determine capital offences, and this Altissima Curia, not have power of a grand Jury to him to find Billa vera.  
Yet ask this Justice of Assize by what precedent in this Kingdom he adventures upon this service, Ask of the Justice of Peace by what Precedents he takes notice of Presentments, Indictments, awards the alias, the plures Capias, and his power must take footing from Parliaments.  
Inquire of the Court of Chancery for its Equity, for the power of Writs and Judgements. Inquire the power of the King's Bench for a Wager of battle in an appeal. Inquire of the Courts of Common-pleas for their authority in any of their rules of Court, Nay inquire of the petty-Constable by what power he executes his office, nay, for the carrying of his painted staff; and they will return but starved and hungry arguments, except they fetch it from the Parliament.  
Admit we had no interest in Precedents, were it not durus sermo, that the long and well settled rites of Parliament should fall to the ground for want of a Precedent, which undoubtedly hath power in itself to make a Precedent not repugnant to Law?  
Who knows not but in the former dark and Tragical times that most part of the Rolls, and Records of this Kingdom were destroyed by William the Conqueror, and that the end of others, was the Antitype of the end of the world, even a dissolution by fire; some laid in horse loads in every corner of the streets for Dung-hilrakers to pick antiquities up, and Tailors to make measures of.  
This Epidemical consumption of our Records was a fatal and dismal injury to this Kingdom in itself; but it will wound us afresh, if ourselves and posterity for want of them (though no fault in us then unborn) should permit Treasons, Repines, Murders, Disturbers of the Kingdom and Commonweal, pass with impunity.  
The first man that ever suffered for Treason, if want of a Precedent would excuse him, might have begot Traitors to third and fourth generation with impunity. My house hath taken fire, I call for water to quench it; I would suppose him mad that would advise me to let it burn to the ground, because my neighbour would not quench his, and therefore I want a Precedent.  
We will impute it unto the integrity of those times that have not fostered such unbounded spirits to attempt such crimes as might leave Precedents of this nature.  
It is Justice that those who will renew Precedents of long buried crimes, should renew or create Precedents of deserved trial and punishment. I have mustered some few Arguments in vindication of the Judicature of the Parliament in this Kingdom, they are valid enough for the intricacy of the question: Where tacks will serve, what needs tenpenny nails? A good face wants no band. A valid Parliament wants no assertions for its Jurisdiction, and such is this present Parliament.  
There is nothing now left, but that as I have spent some time in scanning a Parliament with Judicature, since Contrariae, contrariis ●pp●s●●a magis elucescunt, we may cast a smiling eye upon that pretty silken bugbear of State, a Parliament without Judicature.  
Curia altissima, must be Curia infima; Curia magna must be Curia minima. It will resemble a sword with guilt hilts, and a blade made of a larth. Whereas then all Courts were derived from it, now all Courts may insult upon it,  
The cloth of State no man ought to name without reverence, will esteem itself in a deplorable, and widowed estate for the death of her only consort, JUDICATURE. And like the single Turtle mourn whilst the Cushions of the Toulesale prick up their ears.  
Me thinks the Lion's roar, the strings of the Harps break and sourd in discord, the Flower de luces whither to be stretched out in a place 〈◊〉 Judicature. None sits under that Pavilion that bears the sword in 〈◊〉. ●he high prized tincture of the Lords robes gins to fade, the Er●●●s lose their complexion, if they lose their Judicature.  
That well becoming title to a Nation, Peerage, would hand down its head, blush, and curse the influences in its nativity, if it should come to such an untimely end.  
Their Speaker may study silence, and report that himself, which they never read nor heard of, A Parliament without JUDICATURE.  
The House of Commons, that were hitherto styles Prudentum Conve●●●●, may impeach but little wit, and the Lords remedy them with as l●t●le ●ower; Call and call, Impeach and Impeach, and demand Justice fr●● the titular Lords, that can neither help themselves nor them. And ministers of the Assembly may sit attendants on the Houses, in re●●●● of intricate mysteries in Judicature that happen to be discussed before the Tribunal (though most venerable in their own sphere) like so many Plovers pricked down for Stales, with this Motto, Vide●t●r et non sunt. The Common-Law speaks our Parliament and its Judicature, the Statute Laws confirm it. Precedents strengthen in; Reason, even undeniable reason fortifies it.   
FINIS.