SEVERAL POISONOUS AND SEDITIOUS PAPERS OF Mr. DAVID JENKINS ANSWERED. By H. P. BARRISTER of Lincoln's Inn. LONDON: Printed for Robert Bostock dwelling in Paul's Church yard, at the Sign of the Kings Head. 1647. THE VINDICATION OF JUDGE JENKINS Prisoner in the TOWER, the 29. of April, 1647. I Was convened upon Saturday the 10. of this month of April before a Committee of the House of Commons, wherein Mr 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 then that which was set down in a paper I then delivered to the said Mr. Corbet, which followeth in these words. Gentlemen, I stand committed by the House of Commons for high Treason, fo● not acknowledging, nor obeying the Power of the two Houses, by adhering to the king in this War. I deny this to b● Treason; For the supreme and only Power by the Laws of the Land is in the king. If I should sub●it to any examination derived from your Power, which by the Negative oath stands in opposition to the Kings Powe●, I should contesse the Power to be in you, and so condemn my 〈◊〉 for a Traitor, which I neither aught no● will do. I am sworn to obey the King, and the Laws of this Land: you have not power to examine m● b● th●●e Laws, but by the King's Writ, Patent, or Commission; if yo● ca● produce of her thereof, I will answer the que●●ions you shall propound; otherwise I cannot answer thereto, without the breach of my Oath, and the violation of the Laws, which I wil● not do to save my life. You yourselves, all of you this Parliament, have sworn that the King is our only and supreme Governor: you● 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 questions. 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 Mr. 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 H. 8. ca 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 Declaration of the 28. of November last to the Scots Papers, pa. 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. The Law of the Land is, ● Eliz. c. 1. That no person in any Parliament hath a voice in the H●use 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. 3. The Oath is not, that the King was, or aught to be, or had been, before he was seduced by ill Counsel, 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. Who ever 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 teach, goes amongst the people. To tell the people that the King is now their only and supreme Governor in all causes, is conttrary 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 Counsel, and will not come to them, and yet the King desires to come, but they will not suffer him, but keep him prisoner at Holdenby: 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 past 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 Westminste●? 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 ●aw, Si● Edward Cook; so much magnified by this present Parliament, who 〈◊〉 7. part of his Reports in calvin's case, fol. 11 saith thus. In the Reign of Edw: 2. he Sponcers, the Father, a●d Son, 〈…〉 hatched in their heart's, invented this damnable and 〈◊〉 opinion, that homage a● doath of ligeance was more by reas●● 〈◊〉 King's Cr●wn, (that is, of his politic capacity) then by reason of ●h● pers●n of 〈◊〉 King; upon whi●h opinion they inferred ●hree execrable and 〈…〉. 1. I● the King do not demean himself by reason in the right of his Cro●n, his 〈◊〉 are bound by Oath to remove th● King. 2 Seeing that the King could not be reform 〈◊〉 of 〈◊〉 that ought to be done per aspertee: that is, by f●rce. 3. That his lieges be bound to govern in aid of him, and in 〈…〉: All whi●h were condemned by two Parliaments, one in the Reign of Ed●: 2. call●d ●xilium 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. E●iz: Plowdon Com: fol: 213. by Si● R●bert Ca●lin, Lord Chief Justice of England, 〈…〉, Lord Chief Justice of the Common P●ease; the Lord Sa●ders, Lord Chief baron of the Exchequer, and by the rest o● the Judge's, viz. 〈…〉, Justice 〈◊〉 Justice Corbet, Justice Weston baron 〈…〉 and 〈◊〉 Sergeants▪ 〈…〉 General●. 〈◊〉 Atturey of the Turchy: 〈◊〉 the learned it man of that age, in the knowledge of the Law, and Customs of the Realm. 8. The Law in all 〈◊〉 without any 〈◊〉 is and 〈◊〉 been: 2 H. ● Ma●na Cha●ta. That no Act of Parliament 〈◊〉 the Subjects of the L●rd without the assent of the King, 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-Books are cited. either for Person, Lands, goods, or fame. No man can show any fillable, 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 H. 3. to 1 H. 7. were either, The King ordains at this 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, 7 H. 7. 14. 12 of H. 7. 20 as the soul to the body; and therefore our Law Books call the King, the Fountain of Justice, and the life of the Law. 9 Mercy as well as Justice belongs by the Law of the Land only to the King. 2 H. 4. ca 22. 4 pars instit. 42. This is confessed by Mr. Prin●, and it is so without any question: The King can only pardon, and never more ●ause to have sufficient pardons then in such troublesome times as these; Mr. Prinn in his Treatise of the great Seal, fol. 17. 27 H. 8. c. 24. 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▪ H. 8. ca 24. 10. Queen Elizabeth summoned her first Parliament, to be held the 23. of Janna. 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 Januarie. 3 Eliz. Dier 203. Resolved by all the Judges of England, 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 King 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 Holdenby, with guards upon him, and yet they govern by the virtual Power of their Prisoner. These are some few of the causes and reasons which moved me to deliver that paper to Mr. Corbet, which I am ready to justify with my life, and should hold it a great honour to 〈…〉 the honourable an● holy Laws of the Land: That 〈…〉 save this Land fro●●●●truction, is an Act of Oblivion, 〈…〉 Majesty's gracious ●●●●all pardon, the Soul●iers their 〈◊〉 and every man his 〈◊〉, and Truth and Peace established in 〈◊〉 ●●nd, and a favourable regard had to the satisfaction of 〈◊〉 Consciences. April 29. 1647. David Jenkins. An ANSWER to the Poisonous Seditious Paper of Mr. David Jenkins. MR. David Jenkins in his Paper of the 29. of April last, lay●● most odious charges upon the Parliament: and consequently upon all that have adhered to the Parliament in this War; and les● these his desperate infusions should not work powerfully enough upon the vulgar; he being an ancient practiser in the Law, and promoted to the title of a Judge: he citys Book cases against the two Houses, and seems forward to lay down his life in the cause. His 1. Argument runs thus. The Parliament not having the King's Writ, Patent or Commission, cannot do so much as examine any man: But the Parliament has not the King's Writ, etc. Ergo: his minor is confirmed thus. If the King's power remain solely in himself, and be not virtually present in the two Houses, than they cannot pretend his Writ, Patent or Commission. But the King's power is in himself, and not virtually in the two House's, ergo, that the Parliament has no virtual power, he proves thu●▪ 1. If the Parliament had in them the King's virtual Power, they needed not desire the King's ratification: they needed not send any Propositions to him; but now they send Propositions, ergo this virtual power is but a mere fiction. ● To affirm that the King's power is separable from his person, is by the Law adjudged high Treason: but in the Parliament 〈◊〉 the King's Power is virtually in them, than they separate it 〈◊〉 his person Ergo. 3. If none can pardon Felony or Treason except the King, ●one has the virtual power of the King, but none can pardon except the King, Ergo, 4. If the King be in no condition to govern, than he is in no condition to derive virtual power, but, etc. 5. If none can sit in Parliament but he must first swear that the 〈…〉 the only Supreme Governor over all Persons in all Causes, then, no Member of the Parliament, nor the whole Parliament, can suppose him or themselves superior to the King: but none can sit in Parliament, etc. Ergo, ● I● no Act of Parliament bind the Subject without the King's 〈◊〉, than there is no virtual power in the Parliament without the King's assent; but no Act binds, etc. Ergo, Out of these premises which this grave Gentleman judges to be irrefragable, he concludes that the Parliament denies the King to be Supreme Governor, nay to be any Governor at all, in as 〈◊〉 as there is no point of government, He says but th● Parliament for some years past have taken to themselves using the King's name, only to abuse and deceive the people. He says further, the Parliament pretends against the King, because that he ha● left the great Counsel, and yet the King desires to come to his great Counsel, but cannot because he is by them kept 〈◊〉 at Holmby. 〈…〉 he says the Houses are guilty of pe●jur●as well as of the 〈◊〉 the people, and rebelling against the King; in as much as at the same time they swear him to be only 〈◊〉 Governor, and declare him to be in no condition to govern. How easily these things may be answered, and refuted, let the world see. 〈…〉 cannot be denied: but the Parliament sits by the King's Writ, nay if Statute Law be greater than th●● Kings Writ, it cannot be denied but the Parliament 〈◊〉 or aught to 〈◊〉 by something greater than then the King's 〈◊〉, 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 sequitu● 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 air; and who sees not that the King without emptying himself, gives Commissions daily of Oier and Terminer to others, which yet he himself can neither frustrate nor el●de? 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 〈◊〉 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 Subsedies to the King? if only by the power which the King gives, than the King may take Subsedies without any grant from the Parliament: and if it be so by a power which the people give to the Parliament, than it will follow, that 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 a suit to an inferior for matters in themselves due. 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 Spensers affirmed; neither do we frame conclusions out of that separation as the two Spensers did, either that the King may be removed or misdemeanours, or reform per aspertee; 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 Writes, Courts and Officers; and commanding another thing extrajudicially by word of mouth, letter's, 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 has murdered my son, his pardon shall not ●ut me off from my appeal: and 'tis more unreasonable that the Kings pardon should make a whole State which has suffered remediless, than any private man. So if the King should deny indemnity to those 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 equiable that an Act of Indemnity should be made forcible another way. 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 has no power to discharge Delinquenties, therefore it has no power in other matters. 6 The Parliament has declared the King to be in no condition to govern: but this must nor be interpreted rigidly, and without a 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, 〈◊〉 not hereby insinuated that he is 〈◊〉 o● the habit or righ● of governing. 〈…〉 be unqualified now, 〈◊〉 is not 〈◊〉 for the future. If he may not do things destructive to the Parliament, he is not 〈◊〉 from returning to the Parliament, or doing 〈◊〉 to the Parliament. This is a frivelous civil, and subterfuge. 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 〈◊〉 of his people, which is the end of the Law, and indeed Paramou●t to the Law itself. I● he be above all Law, or liable to no restraint of ou● Law, than we are 〈…〉 the French, or the T●●ks; a●d if he be above the pri●e end of Law common safety, than we are not so 〈…〉 the French, or the 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 remedilessly perish when the King pleases to command our throats. Besides, how acheived 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 too, 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 has Mr. Jenkins read, where has he found out 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 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 has both God and the Law for his Superior. But all this is nothing to learned Mr. Jenkins. 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. Jenkins, nor to do any other thing of like nature, though in order to public justice and safety. I have done, and wish Mr. Jenkins would call in, and lick up again his black, infamous, execrable reproaches, so filthily vomited out against the Parliament. The Reply of Judge Jenkins to Mr. H. P. AFter the said Mr. H. P. hath made a recital of the Heads of my Vindication, he deduceth his Answer unto eight Particulars. 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; 5 H 4 c. 3. The Court of Pie-Powders, Courtbaron, Hundred Court, 3 H 6. 46. County Court, and every other Court of Record, or not of Record, 19 H 6. 43. hath power to examine upon oath, and an examination without Oath, 35 H. 6. 5. is a communication only, examination in Law is upon oath. There is no Court without a power of trial, Sir Anthony Maynes case, Cook 5. pars, Reports, Lit. 2. lib. Sect. 194. 6 H. 4. 1. the House of Commons hath no power to try any offence, 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 à fine. The Writ whereby they are called gives them power Ad faciendum & consentiendum, 4 pars, Instit. fol 4. & 9 to what? to such things Quae ibidem de communi Consilio ordinari contigerint, (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 fits 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 Writs are, To appear and attend the Parliament, Consilium impensure, the one doth consulere, the other facere & consentire. The House of Lords, 7 H 6. 28. where the King fits in person, assisted by his Lords, 1 H 7. 20. Judges, Sergeants, Attorney, Solicitor, Masters of the Chancery, 14 E. 3. ca 5. is a Court of Record to many purposes, set down in the books of the Law, 1 Pa●s, Instit. pa. 21. and the Statutes of the Land; and that Courts is only in the House of Lords, where the King sits. A Court must either be by the King's Patent, Statute Law, or by the Common Law, Ploughed Com. 319. which is common and con●●ant usage; the House of Commons hath no Patent to be a Court, nor Statute Law to be a Court, nor common usage; they have no 〈◊〉 Book but since E. 6. time: was there ever Fine by the House of Commons e●treated into the Exchequer? For murder o● Felony they can imprison no man, much ●esse for Treason; the House which cannot do the less cannot do the greater. I● is ordained, 25 E 3 c 4. that no man shall be imprisoned, or put out of his Franchise by the King or his Council, 3▪ Car Petition of Right. 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 is Magna Charta. cap. 29 expounded; and the said Magna Charta and Charta 〈…〉, are declared by the Statute of 25 E 1. 〈◊〉. to be the Common Law of the Land. All Judges and Commissioners are to proceed, Secundum legem & consuetudinem Regni Angliae, 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, 〈◊〉 Original Writ, have no power to imprison men, or to put them out of their Franchise. This no way trenches upon the Parliament, 4 pars, Instit. pag 1 for it is in Law no Parliament without King and both Houses; 3 Pars. Instit. p. 3. I have only in my Paper delivered to Mr. Corbet, applied myself to that Committee, 12 H 7. 20. Prince case. that they had no power to examine me; but I never thought, said, or wrote, that the Parliament had no power to examine me: 8 Parson▪ Cook. 1 Pars, 〈◊〉 p ●59. 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; 1 H 8 3 but the House of Commons of itself hath no such power. Dier▪ 38 H 8 60 For the Lord Cooks relation, that the House of Commons have imposed 〈◊〉, 1 P●●s, Instit p 19 ●. and imprisoned men in Queen E●●z●●ths time, and since; Few facts of late time never 〈…〉 power nor Court, 4 〈◊〉 ●●stit ca Parl. à 〈…〉 is no good 〈◊〉 for the words of the Statute of 6 H 8 c. 16 that a licence to dep●●t from the House or Commons for any Member thereof is to be entered of Record in the Book or 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 tractans 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 Recordari facias loquelam, etc. and yet the County-Court is no Court of Record, and so for ancient Demesne, Fi●●h. Nat, Br 13. in a Writ of false judgement, the words are Recordari facias loquelam, etc. and yet the Court of ancient Demesne is no Court of Record; 12 H 4. 23. and so of a Court Baron, the Law and custom of England must be preserved, 34 H. 6. 49. 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 Gi●es Mompesson, 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, Instit. Tit. Parl. p. 23. where the House of Peers condemned 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 Gentleman saith, That the Parliament fits, or aught to sit by something greater than 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. p. 4. & 6. or by a Guardian of England by Patent under the King's Great Seal, the King being in remotis, or by Commission under the Great Seal to certain Lords representing the King's person, and 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 Triennial Parliament, and another for a perpetual, 4 E 3. c. 14. if the Houses please, to satisfy their desires; 36 E. 3. c. 10. how these two Acts agree one with another, and with Statute in E. the thirds time, 21 I●c. the Act of Limitation of Actions, cap. 26. where Parliaments are ordained to be holden every year, 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 inconveniencies or greater importance, is easy to understand? How can any man affirm, that the two Houses do act now by the King's Writ which relates to counsel and Treaty with the King, 4 pars, Instit. pa. 14. concerning the King, the defence of his Kingdom, and of the Church of England, there are the three points which it tends to, as appears by the Writ. They keep their King prisoner at Holdenby, 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 defend the King's Kingdom, or their kingdom? When by their solemn League and Covenant 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. De●n and Chapter of Norwich. to destroy and defend the Church are very contrary things; the Church is not defended, when they take away and sell the Lands of the Church. The Gentleman saith, The King cannot 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 or common justice, to administer common 〈◊〉 unto all men, according to the fixed Laws. 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, whereof the King is the head, 4 Parson, Instit. p. 1. 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 War against the King, and imprisoning of him, have made the State 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 we 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 judges: the Houses can make no judges, they are no judges at all who are made by them; the whole and sole power of making judges, belongs to the King: the King cannot 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 people of this Land with such Fancies, as the Gentleman▪ who wrote the Answer to my Paper, and others have published in these Troubles, which hath been none of the least causes of the raising and continuing of them: And so I have done with the first part of his answer. A. D. 2. For the Non sequitur, in the second Section of the Gent▪ Answer, the Antecedent and the Consequent are his own. Quem recitas meus est (o Fidentine!) libellus: Sed malè dum recitas incipit esse tuus. My words are, that the King is not virtually in the two houses at Westminster, to enable them to grant pardons, for that whole and sole power by the Law belongs to the King. My Paper hath no such thing, as that the KING'S power cannot be derived to others or the virtue of his power: 27 H. c. 24. 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 Gentl. saith, the King grants Commissions daily of Oyer and Terminer, 4 E 4, 39 which he cannot frustrate nor elude. 5 E. 44. The King may revoke and discharge the Commission by his Writ, 1 E ●. Dy●r 165. as he may remove all Judges, and place other men in their room; and many King's death determines all the judge's Parents of Westminster-Hall, 1 Mar. Bro●ks case 447. Commissions of Oyer and Terminer, etc. and so he might dissolve both Houses in all times, by his Writ under the Great Scale, until that by this Parliament, by his own concession, the King of his goodness hath secluded himself; which goodness hath been full ill requi●ed. The Gentl. 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. p. 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 not above 30. in the Lord's house, and in the house of Commons about 200. of the prime Gent. of the Kingdom left the House, and adhered to his Majesty, who is imprisoned by them, shows no such candour as to be desired It is true, 25 Eliz. 1. Confirmatio chartarum, cap. 6. that no Tallage can be laid upon the People of this Land, but by their consent in Parliament, as appeareth by the Laws mentioned in the margin, but you shall find in Mr. Seldens learned Book, 24 Eli. 1. cap. 1. de Tallagio non concedendo. called Mare Clausum, a number of Precedents in Henry the thirds time for Ship-money, justly condemned this Parliament, to 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. Dane-gelt, 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 from all Subsidies and Tallages, but by consent in Parliament; which doth appear by Magna Charta the last chap. where the Prelates, Lords, and Commonalty 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 subject's 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. E. refused a Subsidy granted in Parliament, and in the Parliament of 1. 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. A. D. 3. The Gent. affirms, That 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, 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 on 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 property to pardon themselves? and so for all the rest of their Propositions. These Propositions have been Voted by both Houses, 12 H. 7. 20 the King's assent (they being drawn into Bills) makes them Acts of Parliament: 1 jac. c. 1. Hath the King no right to assent or disassent? 1 Car. c. 7. Was the sending but a Compliment? All our Law-bookes and Statutes speak otherwise. This Gentl. and others, must give an account one time or other for such delusions put upon the people. A. D. 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 do not the two Houses act every of them? They say his Majesty hath broken his trust, touching the government of his people: They have raised Armies to take him, 1 E 3. c. 2. Calv. case 7 Parson, Reports 11. they have taken him, and imprisoned him; they govern themselves; they make Laws, impose Taxes, make judges, Sheriffs, and take upon them omnia insignia summae potestatis: 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 at length see these things? The Gentl. saith, Ploughed. 4. E. 213. the King's power and his person are indivisible. they do not separate his power from his Person, but distinguish it, etc. His power is in his legal Writs, Courts, and Officicers: when they counterfeit 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. A. D. 5. The Gentl. goes on, Stanfor. Pleas. 99 27. H. 8. c. 24. Dier. 163. 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, 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, 1 Pars. Instit. p. 44. Ploughed. 3. Eliz. 236, 237. the King's Prerogative and the Subjects Liberty are determined, and bounded, and measured by the written Law what they are; 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. A. D. 6. The Gentl. 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, No● juris consulti sumus sacerdotes, (as Justinian the Emperor hath it, in the first Book of his Institutions) and therefore knowledge and truth should come from our lips: Worthy and ingenious men will remember, and reflect upon that passage of that good and wise man Seneca, Non quaitur, 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. A D. 7. The Gentl. says, We swear that the King is our supreme Governor over all persons and in all causes, etc. Why hath he left 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, 5 Eliz. c. 1. Cawdreys' case 5 pars, fol. 1. over all persons, 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 Gentl. affirms in his answer) these things agree well with their Oath, This Oath is allowed by the Common Law of the Land. 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; ever 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 their private, and not dishonour that Noble profession, as many do in this miserable time. The Gent. says, We do not swear that the King is above all Law, nor above the safety of his people; neither do we so swear, but His Majesty and we will swear the contrary, and have sworn, 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 safety of his people are his safety, his honour and his strength. A D. 8. The Gentl. 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 people at pleawith fifth and twentieth part, fifty Subsidies, Sequestrations, Lo●nes, Compositions, imprisoning the King, abolishing the Common-Prayer-Book, selling the Church's Lands, etc. all these are in order to 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, 3 Pars, Inst p. 36. Records and Histories, and you shall find a Principle in Law, a Rule in Reason, and a trial in Experience, that Treason doth ever perduce fatal and final destruction to the offender, and never attains to the desired end (two incidents inseparable thereunto) and therefore let all men abandon it, as the poisonous bait 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 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.