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. June 17th Printed in the Year, 1647. A DISCOURSE Touching the Inconveniencies of a Long continued Parliament. 1. A Perpetual 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 dissolvirg 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 Acts of one Session relate to the first day of the Parliament, Ploughed come. 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier. 1 Mariae 45. and all the Acts of such a Parliament 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 41. 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 owne-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 disseising him of his land, or dispossessing him of his goods, or blasting of his fame, or doing violence to his person, that such persons during their lives should not be questioned by a 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, Sir Anthony Mayns case. 5. pars, 1 H. 4.6. Littl. cap. Villain. it agreeth with Law and Reason, the Act should end, 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 bast 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 cumpraelatis, magnatibus et proceribus super arduis negotijs, concernentibus, 1. Nos. 2 Defensionem regni nostri 3. Defensionom 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 Anglicana, that is gone, that Ecclesia Anglicana must be understood necessarily that Church, that at the teste of of the Writ was Ecclesiae 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, Subato 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 case 7. part, 34. 2. Jacobi. that Noblemen committing Treason have forfeited their Office and Dignity, their Office is 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 tacit 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. 4. Perition of Right. 3 Car. presentment of his good and lawful Neighbours where such deeds be done, in due manner, or by process made by Wtit 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 licet 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, 8 Parson, Cook 120. 27 H. 6.8. but a Court of Record, the House of Commons is no Court of Record, the House of the Lords where the King is in 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. cā—p. 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. ca 1. 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, ā—ā— 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. 4.20. 5 Ed. 4.41. 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 of the test 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 pars, Instit. fol. 24. john Thornsbyes' case, Clerk of the Parliam, ibid. 10. E. ā—. 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 favourable regard had to tender Consciences, there will be neither Truth nor Peace in this Land, nor any man secure of any thing he hath. The End.