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THE VVORKS OF THAT GRAVE and LEARNED LAVVYER Iudge Ienkins, Priſoner in Newgate. UPON Divers STATUTES, Concerning, the Liberty, and Freedome of the Subject. With a perfect Table thereto annexed.

Plebs ſine Lege ruit.

LONDON, Printed for J. Gyles, and are ſold at his ſhop at Furnivals-Inne. MDCXLVIII.

[illustration]

The Contents.

  • The Law of the Land.
  • The King.
  • Treaſon.
  • A Parliament.
  • The preſent Parliament.
  • Certaine Erroneus Poſitions and Proceedings of both Houſes of Par­liament.
  • The like of the Houſe of Com­mons.
  • The Propoſitions of the Parlia­ment of both Kingdomes ſent to New-Caſtle.
  • The Kings Party.
  • The Parliaments Party are De­linquents.
  • The Army ſerving the two Houſes.
  • The Army Reſcuing the King.
  • The Liberty of the Subject.
  • Meſſellana.
The Law of the Land.
  • THE Law of the Land hath for its ground;
  • 1. Cuſtome.
  • 2. Judiciall Records.
  • 3. Acts of Parliament.
  • The two latter being Declarations of the Common Law, and cuſtome of the Realme. pag. 5.21.23.
  • The Law of Royall Government is a Law Fundamentall. p. 5.
  • The Kings Prerogative, and the Subjects Liberty, are determined and bounded by the Law, p. 131.
  • The King claimes no power but by the law of the land. p. 131.
  • The Law the onely Rule and Direction of the Subject in this preſent Warre. pag. 42 131.
  • Ʋbi Lex non diſtinguit,bi non eſt diſtinguen­dum. p. 132.
The King.
  • THE King of England hath his Title to the Crowne, and to his Kingly Office and Power, not by way of truſt, from the two Houſes of Parliament, or from the people, but by inherent Birth-right from God, Nature, and the Law. p. 24, 25. 38. 52, 53, 54, 56. 57.
  • There was never King Depoſed, but in tu­multuous and madde times, and by the power of the Armyes, and they who were to bee the ſucceeding Kings in the head of them, as Ed: 3. and Hen. 4. p. 54.
  • Uſurpers were Kings de fact, not de jure. p. 54.
  • The King is aſſiſted by the advice of the Judges, his Counſell at Law, Sollicitor, Attur­ney, Maſters of Chancery, and counſell of State, hence the Law hath ſetled ſeverall Pow­ers in the King p. 27.28.
  • The Kings of England enjoyed that Power in a full meaſure till King Iohns time. p: 6 7, 8.
  • How Rights of Soveraignty continued in practiſe from Hen. 3. till 1640, p. 6.
  • The Kings Power not ſeparable from his Perſon. p. 70, 71.
  • The Body Naturall and Politique in the King make but one body. p. 2.38.71.
  • Every Subject ſwears homage to the King. p. 8.
  • The Law gives reverence to the Perſon of the King. p. 10.
  • Foule mouthed Pamphlets againſt the King condemned, p. 21.
  • The Supream Power is in the King p. 7.13.14.16.57, 58.
  • The Oath of Supremacy in relation to the Parliament. p. 67.133.
  • The King Supream in Eccleſiaſticall cauſes. p. 10.
  • The King the onely Supreame Governour, and all other perſons have their power from him, by his Writ, Patent, or Commiſſion p. 20, 21, 22.36, 37. & 64, 65.
  • The power of the Militia is in the King. p. 8.37.
  • In the time of Parliament. p. 8.
  • The Commiſſion of Array in force. p. 13.36.
  • The Power of making League with For­reigners is in the King. p. 8.15.17.
  • The power of War in the King p. 20.21.
  • The power of making Officers in the King. p. 8.
  • The King onely hath power to make Juſti­ces of Peace, and of Aſſize. p. 45.100.12.
  • The power of coynadge in the King p. 8.
  • The power of pardoning onely in the King by Law p. 8.66.74.78.84.128.130.
  • The King hath power to remove the courts at Weſtminſter. p. 45.
  • The King can do no wrong, but his Judges, Counſello••s, and Miniſters may. p. 37.41.
  • So long as men manage the Laws they will be broken more, or leſſe. p. 29.
Treaſon.
  • IN the Reign of Ed. 2. the Spencers, the Fa­ther and the Sonne to cover their Treaſon hatched in their hearts, invented this damna­ble and damned opinion, that Homage, and Oath of Allegiance, was more by reaſon of the KingCrowne (that is his Politique Ca­pacity) than by reaſon of his perſon; upon which opinion they inferred three execrable and deteſtable Conſequences.
  • Firſt, if the King do not demeane himſelfe, by reaſon, in the right of his Crowne, his Leidges are bound by Oath to remove the King.
  • Secondly, ſeeing the King could not be re­formed by ſuit of Law, that ought to be done per aſperte, that is by force.
  • Thirdly, his Leidges be bound to Governe in aid of him, and in default of him. p. 9.70.
  • Severall Treaſons by the Statute, 25. 8d. 3. p. 12, 13, 14, 15, 16, 76.
  • The word King in the 25. Edw. 3. muſt be underſtood of the Kings natural Perſon p. 12, 13, 77.
  • Other Treaſons not ſpecified in that Act, are declared to bee no Treaſons, untill the King and his Parliament ſhall declare other­wiſe. p. 77.101.
  • To ſeize the Kings Forts, Ports, Maga­zine of Warre, is High Treaſon. p. 11. 2237.77.
  • To remove Counſellours by Arms, is high Treaſon. p. 22.40.
  • To leavie Warre to alter Religion, is high Treaſon, p. 40.
  • To leavie war to alter the Law, is high Treaſon. p. 11.40.77.
  • To counterfeit the great Seal, is high Trea­ſon. p. 37.
  • To adhere to any State within the King­dom, but the Kings Majeſty, is high Treaſon. 24.39.
  • To impriſon the King untill hee agree to certaine demands, is high Treaſon, p. 1.22.77.
  • They who impriſon the King purpoſe to de­ſtory him, p. 163.
  • Depoſers of the King adjudged Traitors by the Law of the Land, p. 54.
  • A Body Corporate cannot commit Treaſon, but the perſons can. p. 16.
  • Noble men committing Treaſon, forfeit their Office and Dignity p. 143.
  • Treaſon how puniſhed by the Law p. 42.
  • Treaſon doth ever produce fatall deſtruction to the Offender, and never attaines to the de­ſired end: and there are two incidents inſepa­rable thereunto. p. 135.
A Parliament.
  • THe word Parliament cometh from the French word Parler, to Treat. p. 81.
  • The King is Principium, Caput, & Finis, Parl. p 26.48.122.
  • The King aſſembles the Parliament by his Writ, Adjournes, Prorogues, and diſſolves the Parliament, by the Law, at his pleaſure, p. 57.
  • The Writ whereby the King aſſembled the two Houſes, which is called the Writ of Sum­mons, at all times, and at this Parliament u­ſed, and which is the warrant, ground, and foundation of their meeting, is for the Lords of the Houſe of Peers, to Conſult and Treat with the King (that is the Parler) of great Concernments, touching;
  • 1. The King.
  • 2. The defence of this Kingdome.
  • 3. The defence of the Church of England. p. 24.34. p. 25.81.120, 121.
  • Counſell is not command, Councellors are not Commanders. p. 26.
  • The Writ of ſummoning the Judges, Coun­fell of Lw, and 12 Maſters of Chancery, is to appeare, and attend the Parliament, to give Counſell p. 116.
  • The Writ of ſummoning the Commons, is, to doe, and to conſnt to ſuch things, which ſhall happen to bee ordained by CommonCounſell there (viz.) in the Parliament, p. 25.26.115.
  • The Parliament is a Corporation compoſed of the King the head, and the Lords and Com­mons, the Subject body. p. 5. l. 22. p. 19.20.49.50.80.122.142.145.146.
  • And it hath power over our Lives, Liber­tyes, Lawes, and Goods. p. 118.
  • The Court of Parliament is onely in the Houſe of Lords, where the King ſits in perſon, p. 116.122.144.
  • The Office of the Lords, is to Counſell the King in time of Peace, and to defend him in time of War. p. 116.142.
  • It belongs to the Houſe of Lords, to re­forme erroneous Iudgements given in the Kings Bench, to redreſſe the delayes of Courts of Iuſtice, to receive all Petitions, to adviſe his Majeſty with their Counſell, to have their Votes in Voting, or abrogating of Laws, and to propoſe for the Common good, what they conceive meet. p. 33.
  • How Errours in Iudgement are reverſed by the Houſe of Lords. p. 55.
  • At a Conferrence the Commons are alwaies uncovered and ſtand, when the Lords ſit with their hats on; which ſhewes that they are not Colleagues in Iudgement with the Lords. p. 147.
  • Every Member of the Houſe of Commons takes the Oath of Allegiance and Supremacy, before his admiſſion into the Houſe. p. 67.133.
  • Briberies, Extortions, Monopolyes, ought to bee enquired after by the Houſe of Com­mons, and complained of to the King and Lords. p. 114.
  • It belongs to the Houſe of Commons to repreſent the Grievances of the Countrey, to grant Aydes for the King, upon all fit occaſi­ons extraordinary, to aſſent to the making or abrogating Lawes. p. 33.115, 116, 117, 118.
  • Becauſe making of new, and abrogating of old Lawes, both induce Novelties: and be­cauſe Bils in both Houſes may paſſe, but by one or two voices, or very few, and perhaps of no Iudicious men (who oftentimes carry it by making the Major part, which involves the conſent of all) therefore the Law makes the King aſſiſted therein, by a great number of Grave, Learned, and Prudent men, the Judge of thoſe Bils, whether they be neceſſary for the Publique Good, or no. p. 32, 3.53.57.123.
  • And the King, upon all Bills, hath liber­ty of aſſenting or diſſenting. p. 18.28.39.111.
  • And in caſe of the Kings Minority, the Pro­tector hath his liberty, and negative voice, in reſpect of the King. p. 52.
  • The ſtyles of the Acts printed from 9. Hen. 3. to 1. Hen. 7. were either, the King Ordaines at his Parliament, &c. Or, the King Ordai­neth by the advice of his Prelates and Ba­rons, and at the humble petition of the Com­mons &c.
  • In Hen. 7. time the ſtyle was altered, and hath ſo continued to this day. p. 24.71.
  • No Act of Parliament bindes the Subject, without the aſſent of the King. p. 71.72.
  • When an Act of Parliament is againſt com­mon Right, or Reaſon, or repugnant, or im­poſſible to bee performed, the Common Law ſhall controle it, and adjudge it to be void. And ſuch is an Act for a perpetual Parliament. p. 139.
  • An Act of Parliament, that a man ſhall bee Iudge in his own cauſe, is a voyd Act. p. 139.
  • An Adjournment of the parliament makes no Sſſion. p. 137.
  • There is no Sſſion, till a prorogation or diſſolution of the Parliament. p. 137.
  • All the Acts of one Sſſion relate to the firſt day of the Parliament. p 138.
  • The two Houſes ought to take care of the preſervation of the Kings Perſon p. 18.
  • The Lords and Commons cannot aſſent to any thing that tends to the diſinheriſon of the King, and his Crown to which they are ſworn. p. 11.
  • The two Houſes ought not to meddle with the Kings Revenue. p. 11.
  • Armes are not to be borne in London, or Weſtminſter in time of Parliament. p. 8.39.
  • The Priviledge of Parliament protects noman in caſe of Treaſon orelony. p. 15.16 78.
  • Parliaments are as the times are; if a turbu­lent Faction prevailes, the Parliament are wic­ked, if the times be ſober, modeſt, prudent, and not biaſſed, the Parliament are right, good, honourable, and good Medicines and Salves. p. 41.42.
The preſent Parliament.
  • THis Parliament beganne 3. Novemb. 1640, and in the beginning thereof the King ac­quitted the Ship-Money, Knighthood-Money, ſeven Courts of Juſtice, conſented to a Tri­niall parliament, ſetled the Forreſt bounds, tooke away the Clarke of the Market, of the Houſhold, truſted the Houſes 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 Lawes, Oathes, and Reaſon, and nothing more could, nor can bee deviſed to ſerve us, neither hath been in any time before. p. 3.
  • Notwithſtanding all this (Jan. 10. 1641. ) the King was driven away from London, by frequent Tumults, and 2. thirds, and more of the Lords had deſerted that Houſe, for the ſame cauſe, and the greater put 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 counterfeit Seale, and in the Kings name, a­gainſt his conſent, leavying War againſt Him, and ſeizing his Forts, Ports, Magazins, and Revenue, and converting them to his deſtructi­on the ſubverſion of the Law, and Land, laying Taxes on the people never head of be­fore in this Land, deviſing new Oathes to oppoſe the Forces raiſed by the King, &c. p. 35.
  • From the 3 Novem. 1640. u••o Ian. 10.164. they had time to perſecute all evil Counſellors and Iudges. p 17 4.
  • From that time the King was driven away, the two Houſes ſtood in oppoſition to the king and his power. p. 66.
  • This became no Parliament when the King with whom they ſhould parley was driven a­way, and it continues ſo, whilſt his Majeſtic is reſtrained as a priſoner p. 35.81. And the houſes now ſevered from the King have no power at all, no more than the body hath, being ſevered from the head, p. 80.112.
  • The 2. Houſes do not now act by the Kings Writ, but contrary to it. p. 121. And ſo their Acts are Null p. 122 141.
  • The Act for continuing this parliament, ſo long as both Houſes pleaſe, is voyd, becauſe it is;
  • 1. Againſt Common right; for thereby the parliament men will not pay their debts: Andthey may doe wrong to other men, Impune: beſides the utter deſtruction of all mens acti­ons, who have to doe with Parliament men, by the Statute of Limitation. 21. Jacob.
  • 2. Againſt common reaſon, for parliaments were made to redreſſe publique Grievances, not to make them.
  • 3. Impoſſible, the Death of his Majeſty (whom God long preſerve, diſſolving it ne­ceſſarily.
  • 4. Repugnant to the Act for a Trienniall parliament, and to the Act for holding a par­liament once a yeare. p. 139.140.
  • The end of continuing this parliament was to raiſe Credit for mony; for three purpoſes: And the three ends of the Act being determi­ned, it agreeth with Law, and Reaſon, the Act ſhould end. p. 141.
  • A perpetuall parliament (beſides that it in­cites men to ſelfe ends) will be a conſtant charge to the Kingdome, by reaſon of the wages of parliament men. p. 141.
  • Miſchiefs by the length of parliaments. p. 121.
Certaine Erroneus Poſitions and Proceedings of both Houſes of Parliament diſcovered and con­futed.
  • THe two Houſes without the King are not the Parliament, but onely parts thereof: and by the abuſe, and miſunderſtanding of this word Parliament, they have miſerably de­ceived the people. p. 80.156
  • The King is not vertually in the two Houſes. p. 12.13.20.21.
  • The two Houſes are not above the King, but the King is Superiour to them. p. 11.19.23, 24.133.
  • The tenents of the Spencers, are the ground of their proceedings. p. 10.22. And upon their pretences, they take upon them the Go­vernment at this time.
  • They have deſtroyed above a 100. Acts of parliament (even all concerning the King, the Church, and Church men) and in effect Mag­na Charta, and Charta de Forresta, which are the Common Lawes of the Land. p. 154.
  • They have fifteene ſeverall illegall wayes raiſed Money upon the Subject this preſent parliament, p. 35.
  • There is no Crime from Treaſon to Treſ­paſſe, but they are guilty of. p. 142.
  • They are not to bee Judges in their owne cauſe. p. 15.
  • Of their League and Covenant with the Scots. p. 158.160.
  • The two Houſes by the Law of this Land, have no colour of power, to make Delinquents or pardon Delinquents, the King contra­dicting. p. 119.131.
Certaine Erroneous Poſitions and Proceedings of the Houſe of Commons diſcovered and con­futed.
  • THey cannot bee Members of the Houſe of Commons, who were not recident in the Counties, or Burroughs, for which they were elected, at the time of the Teſte of the Writ of Summons of parliament. p. 149.
  • If any undue Returne bee made, the perſon Returned, is to continue a Member, and the tryall of the Falcity of the Returne, is to bee before the Juſtice of Aſſize, in the proper County, this condemnes the Committee for undue Elections. p. 148.
  • The Houſe of Commons cannot Elect, and Returne Members of that Houſe, p. 144.
  • The ejecting of a Member that hath ſitten, is againſt Law, alſo their new elections are a­gainſt Law: And by this it may be judged, what a Houſe of Commons we have. p. 148.
  • Breaches of priviledges of parliament may bee puniſhed in other Courts. p. 149. And what need then of the Committee for privi­ledges.
  • The houſe of Commons by their Writ have no ſeparate power giuen them over the Kings people, p. 144.
  • The houſe of Commons cannot impriſon any who are not their Members, or Diſtur­bers of their Members in the ſervice of the parliament, p. 143, 144, 145.
  • The Houſe of Commons no Court, p. 115, 116.144, 145, 146, &c.
The Propoſitions ſent by the Parlia­ments of both Kingdomes to His Majestie at New-Caſtle, pag. 6.
  • GEnerall Reaſons againſt thoſe propoſiti­ons. p. 11.15.128.
  • Reaſons in particular againſt thoſe propoſi­tions.
  • For diſabling the King to pardon. p. 13.
  • For altering Religion in point of Govern­ment. 37.61.63.
  • For ſale of the Biſhops Lands, p. 36.
  • For taking away the Booke of Common­prayer, p. 37.
  • For taking from his Majeſty all, the power by Land and Sea. p. 37.
  • For laying upon the people what Taxes they ſhall think meet. p. 128.
  • Beſides in their propoſitions they doe not ſtyle themſelves His Majeſties Subjects, p. 128.
The Kings Party. pag. 36, 37 38.
  • THe Subjects are commanded by Law to Aſſiſt the King in War. 36.
  • Thoſe who adhere to the King are freed by the Statute of the 11th. Hen. 7. p. 39.78.97.
  • Maſter Prins objections againſt the King, and his party anſwered, p. 47. &c.
The Parliaments Party are De­linquents.
  • A Delinquent is hee who adheres to the kings enemies: this ſhewes who are De­linquents. p. 7.
The Army ſerving the Parliament.
  • THe ſumme of the Ordinance for the In­dempnity of the Army, p. 79.
  • It can no more free the Souldiers than re­peale all the Lawes of the Land. p. 78.
  • The Judges are ſworn to doe Juſtice, accor­ding to the Lawes of the Land. p. 79.
  • An Act of Oblivion, and a Generall Par­don, the only means to Indempnifie the Army and the whole kingdome. p. 84. And the con­cluſion of all the other bookes.
The Army Reſcuing the King.
  • TO deliver the King out of Traiterous hands is our bounden duty by the Law of God and the Land. p. 155.
  • By the Law of the Land, when Treaſon, or Felony is committed, it is lawfull for every ſubject, who ſuſpects the Offender, to appre­hend him, ſo that Juſtice may be done upon him, according to Law p. 157.
  • As the Army hath power, ſo adhering to the King, all the Lawes of God, Nature, and man are for them. p. 166.
  • None by the Law of the Land, can in this kingdome have an Army but the King. p. 153.
The Liberty of the Subject.
  • Our Liberties were allowed in the 17th. of King John; and confirm'd in the 9th. of Hen. 3. and are called Mâgna Charta, and Char­ta de Forreſta. p. 6.117.130.
  • Magna Charta is irrepealable. p. 62.
  • Severall Bils for our Liberties paſſed at the beginning of this Parliament. p. 34. And how ſecured.
  • The Liberty of the Subject violated by the two Houſes of Parliament. 140
Miſcellanea.
  • THe Lord Cookes Inſtitutes publiſhed by the Order of the Houſe of Commons. p. 77.
  • Of the Bill paſſed this parliament for taking away the Biſhops Votes in Parliament. p. 31.
  • Againſt that ſaying, that the King got away the Great Seal ſurreptitiouſly from the Parlia­ment. p. 45.
  • Of Jack Cade. p. 160.
  • Treaſons, Murthers, Felonies, and Capitall Crimes to bee tryed by Iuries, and not other­wiſe, but by Act of parliament. p. 102.
  • The Chancellors or Keepers Oath. 174.
  • The preſent Commiſſioners have no Court, Seal, nor commiſſion, 175.
  • The King, the Laws and kingdome cannot bee ſevered.
  • The only quarrell was for the Militia, which the Laws have ever ſetled upon the King. 177.
  • No peace can poſſibly bee had without the King, ibid.
  • No man can deviſe lands till he be 21 years of age, 1. 84.
  • An Infant of 17 years may diſpoſe of goods by will by the opinion of ſome, but by others not till 18. 181.
  • The Court of Wards had no juriſdiction over the perſonall eſtate. 185.
  • Peace and plenty abounded during his Ma­jeſties Government. 187.
  • Since the two Houſes have uſurped the power the kingdom hath been in a ſad condition, 19.
  • Nothing delivered in this book for Law but what the houſe of commons have avowed for Law this Seſſion. 194.
  • The 24 poſitions of Law ſet out in divers books by the Houſe of commons order. p. 196.
  • It is honourable to dye for the Laws, 202.
  • Good counſell for them, if it be taken in time, 203.
  • That which will ſave this Land from de­ſtruction, is an Act of Oblivion, and his Ma­jeſties Gracious Generall pardon, the Souldi­ers their Arrears, and every man his own, and truth and peace eſtabliſhed in this Land, and favourable regard had to the ſatisfaction of tender Conſciences.

God ſave the King.

1

To the Honourable Societies of Grayes Inne, and of the reſt of the Innes of Court, and to all the Profeſſors of the LAW.

I Have now ſpent Forty five yeares in the Study of the Laws of this Land, being my Profeſſion, under, and by the conduct of which Lawes this Common-wealth hath flouriſhed for ſome ages paſt in great ſplendor and happineſſe (jam ſeges eſt ubi Troja fuit.) The great and full body of this King­dome hath of late yeares fallen in­to an extreame ſickneſſe; it is truely ſaid that the cauſe of the diſeaſe being knowne, the diſeaſe is eaſily cured. There is none of you I hope, but doth heartily wiſh2the recovery of our common parent, our native countrey (Moribus antiquis ſtat res Britannica.) I call God to witneſſe that this diſ­courſe of mine hath no other end then my wiſhes of the common good: how farre I have been from Ambition my life paſt, and your owne knowledge of me, can abun­dantly informe you: and many of you well know, that I ever dete­ſted the Ship-money and Monopo­lies, and that in the beginning of this Parliament, for oppoſing the exceſſes of one of the Biſhops, I lay under three Excommunications, & the Examination of ſeventy ſeven Artioles in the high Commiſſi­on Court. His ſacred Majeſty, (God is my witneſſe) made me a Judge in the parts of Wales againſt my will, and all the meanes I was able to make; and a patent formy place was ſent me, for the which I have not paid one farthing, and the place is of ſo inconſiderable a3benefit that it is worth but 80. l. per Annum when paid, and it coſt me every yeare I ſerved twice as much out of my owne eſtate in the way of an ordinary and frugall expence. 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 Atturney­ſhips of Maſtor 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 ſeene in that kind (and I have ſeene many) were to this effect, that his Ma­jeſty would be informed by his Councell if the ſuits preferred were agreeable to the Lawes, and not inconvenient to his people, before he would paſſe them, (what could4 a juſt and pious Prince doe more?) Gentlemen: you ſhall finde the cauſe and the Cure 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 Lawes, this great body recovers: forſake them, it will certainely periſh. I have reſol­ved to tender my ſelfe a Sacrifice for them as cheerefully, and I hope (by Gods aſſiſtance) as conſtantly as old Eleazer did for the holy Lawes of his Nation.

Your Well-wiſher David Jenkins. Now Priſoner in the Tower.
5

LEX TERRAE.

THe Law of this Land hath three grounds: Firſt, Cuſtome. Se­condly, Iudiciall Records, Thirdly, Acts of Parliament. The two latter are but declarations of the Coumon-Law and Cuſtoe of the Realme, touching Royall Go­vernment. And this Law of Ryall Gvernment is aaw Funda­mentall.

The Government of this King­dome by a Ryall Soveraigne,The Kings Prerogative is a princi­pall part of the common Law. Com. Lital 34. 27 Hen. 8. Stamford, Pra. fol. 1. 2 Pars inflit. fol. 496 3 Parsinſtit. pag. 84. hath been as ancient as Hiſtory is, or the memoriall of any time; what power this Soveraignty alwaies had, and uſed in warre and peace in this Land, is the ſcope of this diſcourſe; That V­ſage ſo practiſed makes therein a Fundamentall Law, and the Com­mon Law of the Land is common Vſage, Plwdens Commentaries 195. For the firſt of our Kings ſi­thence the Norman Conqueſt, the firſt William, ſecond William, Henry the6firſt, Stephen, Henry the ſecond, and Richard the firſt, the Cuſtomes of the Realme touching Royall Go­vernment, were never queſtioned: The ſaid Kings injoyed them in a full meaſure. In King Iohns time the Nobles and Commons of the Realme conceiving that the ancient Cuſtomes and Rights were violated, and thereupon preſſing the ſaid King to allow them in the ſeventeenth of King Iohn, the ſaid Liberties, were by King Iohn allowed, and by his Sonne Henry the third, after in the nith yeare of his Reigne confirmed, and are called Magna Charta, and Charta de Foreſta, declared foure hundred twenty two yeares ſhence by the ſaid Charters.

Noweſts to be conſidered, after the Subjects had obtained their Rights and Liberties, which were no other then their ancient Cuſtomes (and the fundamentall Rights of the King as Soveraigne are no other.) How the Rights of Soveraignty continued in practiſe from Henry the thirds time untill this preſent Par­liament of the third of November, 1640. for before Henry the thirds time, the Soveraignty had a very full Power.

7

Rex habet Poteſtatem & ju­riſdictionem ſuper omnes qui in Regno ſuo ſunt,Bracton. temp H. 3. l. 4 cap. 24. Sect. 1. ea quae ſunt juriſ­dictionis & paucis ad nullum per­tinent niſi ad Regiam dignitatem, habet etiam coercionem, ut De­linquentes puniat & coerceat: This proves where the ſupreme Power is.

A Delinquent is he who adhears to the Kings Enemies, Com. Sur. Litil. 261. This ſhewes who are De­linquents.

Omnis ſub Rege, & ipſe ſub nul­lo niſi tantum Deo, noneſt inferior ſibi Subjectis,Soct. 5. Bracibid. non parem habet in Regno ſuo: This ſhewes where the ſupreme power is.

Rex non habet ſuperiorem niſi Deum, ſatis habet ad poenam quod Deum expectat ultorem. Bracton. l. 5. tract. 3. de delaiti, cap. 3 Bracton l. 3 cap. 7.This ſhewes where the ſupreme po­wer is.

Treaſons, Fellonies, and other Pleas of the Crowne, are propria cauſa Regis: This ſhewes the ſame power.

By theſe paſſages it doth appeare8what the Cuſtome was for the power of Soveraignty before that time, the power of the Militia, of coyning of Money, of making Leagues with forraigne Princes, the power of par­doning, of making of Officers, &c. All Kings had them, the ſaid Powers have no beginning.

Sexto Edw. 1. Com. Sur. Eittl. 85. Lege Homage, every Subject owes to the King (viz.) Faith de Membro, de vita, de terreno Honore, the forme of the Oath,Edward 1. inter vetera ſta­tuta is ſet downe; 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 Realme, that it belongeth to the King and his Royall Segniory,Ed. 1. Stra­sue at large, fol. 42. ſtraitly to defend force of Armour, and all other force againſt the Kings peace, at all times when it ſhall pleaſe him, and to puniſh them that ſhall doe contra­ry according to the Law and Uſage of the Realme, and hereunto they are bound to ayd their Soveraigne Lord, at all ſeaſons when need ſhall be. Here the ſupreame power in the time of Parliament, by both Houſes is de­clared to belong to the King.

9

At the beginning of every Parlia­ment, all Armes are,7. Ed. 2.4. pars inſtit. 14. or ought to be forbidden to be borne in London, Weſtminſter, or the Subburbs. This condemnes the multitudes comming to Weſtminſter, and the Guards of armed men.

All who held by Knights ſervice,1 Edw. 2. de. Militibus. and had twenty pounds per annum, were diſtraynable ad Arma militaria ſuſcipienda: This agrees with the Re­cords of ancient time, continued con­ſtantly in all Kings times, but at this Parliament 3. November, 1640. The King out of his grace, diſcharged this duty, which proves that the power of warre and preparation thereto, be­longs not to the two Houſes but only to the King.

The two Spencers in Edw. 2.Edw. 3. Ca­vins Caſe Cooke 7. fol. 11. time hatched (to cover their Treaſon) this damnable and damned opinion (viz) That Ligeance was more by reaſon of the Kings politick capacity then of his perſon, upon which they inferred theſe execrable and deteſta­ble conſequences. Firſt, if the King demeaned not himſelfe by reaſon in the right of his Crowne, his Lieges are bound by Oath to remove him. Secondly, ſeeing the King could not be removed by ſuit of Law it was to10 be done by force. Thirdly, that his Lieges be bound to governe 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. Edw. 3. cap. 2. All which Articles againſt the Spencers are confirmed by this laſt Statute, the Ar­tiles are extant in the booke called vetera Statuta. The ſeparation of the Kings perſon from his power, is the principall 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 cannot be ſei­zed;•••nden. com, 322. y aſſ. pl. 49 for the preſence of the King is a protection for that time to him: This ſhewes what reverence the Law gives to the perſon of a King.

Regis,33 Ed. 3. yde de roy, 203 Fitz, 30 H. 7.16 ſacro oleo uncti ſunt capaes ſpiritualis jurisdictionis: But the two Houſes were never held capable of that power.

Rex eſt perſona mixta cum ſacerdote, haet Eccleſiaſticam & ſpiritualem juriſ­dictionem: This ſhewes the Kings po­wer in Eccleſiaſticall Cauſes.

11

The Lands of the King is called in Law Patromonin ſacrum:Com. Sur. Littl Sect. 4. The Houſes ſhould not have meddled with that ſa­cred Patromony. 3 Ed. 3.19

The King hath no Peere in his Land, and cannot be judged? Ergo the two Houſes are not above him.

The Parliament 15. Ed. 3. was re­pealed, for that is was againſt the Kings Lawes and prerogative. 4 part inſtitfol. 25. This ſhewes cleerely the Propoſitions ſent to Newcaſtle, ought not to have beene preſented to his Majeſty, For that they are contra­ry to the Lawes and his Prerogative.

The Lords and Commons cannot aſſent in Parliament to any thing that tends to the diſ-inherifion of the King and his Crowne,4 Part, Cooke in••it. fol. 14. 42. E. 3. to which they are ſworne: This condemnes the ſaid Propoſitions likewiſe.

To depoſe the King,ParliamenRol. num. 7. Rex &〈◊〉ſuetudPar­amenti. to impriſon him untill he aſſent to certaine de­demands, a warre to alter the Religi­on eſtabliſhed by Law, or any other Law, or to remove Councellors, to hold a Caſtle or Fort againſt the King, are offences againſt that Law declared to be treaſon by the reſoluti­on herein after mentioned, by that Law men are bound to ayd the King when warre is levied againſt him in12 his Realme. 25 Ed. 3. cap. 2.King in his Statute muſt be intended in his naturall body and perſon that only can dye; for to com­paſſe his death, and declare it by o­vert Act is declared thereby treaſon; to incounter in fight ſuch as come to ayd the King in his warres, is trea­ſon.

Compaſſing of the Q••ens death, of the Kings Eldeſt Sonne, to coyne his money, to counterfeit his Great-Seale, to levy Warre againſt him, to adhere to ſuch as ſhall ſo doe, are de­clared by that Act to be high treaſon. This Statute cannot referre to the King in his politique capacity, but to his naturall, which is inſeperable from the politick; for a body politick can have neither Wife,〈◊〉. 13. nor Childe, nor levy Warre, nor doe any Act but by the operation of the naturall bo­dy: A Corporation or body politick hath no ſoule or life, but is a fiction of the Law, and the Statute meant not••ctitious perſons, but the body natu­rall, conjoned with the politique, which are inſeperable.

The clauſe in that Act, that no man ſhould ſue for grace, or pardon for any offence condemned or forfei­ture given by that Act,21 Ed. 4.14. . 2.11. an. was repealed by a ſubſequent Act in 21. R. hol­den13 unreaſonable, without example; and againſt the Law and cuſtome of the Parliament. This condemnes the Propoſition for diſabling the King to Pardon. 4 pars inſtit. fol. 42. 4. Pars inſtit fol. 42.The Act of 11. R. 2. ſo much urged by the o­ther ſide, was an Act to which the King conſented, and ſo a perfect Act: yet Note the Army then about the Towne: Note that that Law is a­againſt 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 drawne 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. Ed. cap. 5.16. R. 2. cap. 5. H. 4.

The Regality of the Crowne of England, is immediately ſubject to God and to none other. Plaine words, ſhewing where the ſupreame power is.

The Commiſſion of Array is in force and no other Commiſſion, Rot. Parlm. 5. 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 Iacobi, and ſo it is of force at this day, for the repealing14Statute is repealed 4. pars inſtitu, fol. 51. & 125 publiſhed fithence this Parliament, by the deſire of the houſe of Commons, their Order is printed in the laſt leafe of the commentaries upon Magna Charta.

Sir Edward Cooke,A booke a­lowed by Sir Na 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 calme 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 faculates, and ſo make all mens eſtates Arbitra­ry: the anſwer is, that in lvying of publicke aydes upon mens goods and eſtates, which are variable, and pro­bably cannot be certainly knowne by any but the owners, it is impoſſible to avoyd diſcretion in the aſſeſments, for ſo it ever was, and ever will bee. By this appeares that the Votes of the two Houſes againſt the Commiſſion of Array, were againſt the Law.

The death of the King diſſolves the Parliament,H. 9. if Kings ſhould re­ferre to the politick capacity it would continue after his death,2 H. 5parinſtit,6. 4 pars Iuſt. 46, which proves that the King can­not15be ſaid to be there wh••he is ab­ſent, as now he is there is no inter regnum in the Kingdome the diſſolu­tion of the Parliament by hideath, ſhewes that the beginning and end thereof referrs to the naturall perſon of the King, and therefore he may lawfully refuſe the Propoſitions.

2. H. 5 Chap. 6. to the King onely it belongs to make Leagues with For­raigne Princes? this ſhewes where the ſupreame power is, and to whom the Militia belongs.

8. H. 6. numb. 57. Rott. Parl. Cooks 4 pars inſtit. 25. H. 6.No priviledge of Par­liament is grantable for treaſon, fe­lony, or breach of the peace; if not to any one Member, not to two, not to ten, not to the major part, 19 H. 6.62. The Law is the inheritance of the King and his people, by which they are ruled, King and people; And the people are by the Law bound to ayd the King, and the King hath an inheritance to hold Parliaments, and in the ayds granted by the Common­alty. If the major part of a Parlia­ment commit treaſon, they muſt not be Judges of it, for no man or body, can be Judge in his own cauſe, and aſwel as ten or any number may com­mit treaſon, the greater number may aſwell.

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The King by his Letters patents may conſtitute a County palatine and grant Regall rights,32 H. 6.13. Plowd. 334. this ſhewes where the ſupreame power is.

17. Ed. 4. Rot. Parl. numb. 39. Ed. 4.No priviledge of Parliament is grantable for treaſon, fellony, or breach of the peace, if not for one, not for two, or more, or a major part.

The ſame perſons muſt not bee Judge and party. Calvins Caſe 7. pars fol. 11, 12.A corporate body can commit no treaſon, nor can trea­ſon be committed againſt a corporate body, 21. E. 4.13. and 14. but the perſons of the men who make that body may commit treaſon, and com­mit it againſt the naturall perſon of him who to ſome purpoſes is a body corporate, but quatenus corporate no treaſon can bee committed by or a­gainſt ſuch a body; that body hath no ſoule, no life, and ſubſiſts onely by the fiction of the Law, and for that reaſon the Law doth conclude as a­foreſaid;Plow. com. 213. therefore the Statue of 25. E. 3. muſt bee intended of the Kings naturall perſon, conjoyned with the politique which are inſeparable, and the Kings naturall perſon being at Holmby, his politique is there alſo, and not at Weſtminſter; for the poli­tique and naturall make one body in­diviſible.

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If all the people of England ſhould breake the league made with a for­raigne Prince,19 Ed. 4.46. 22 Rd. 4. Fitz. juriſ­diction••ſt plaeite. without the Kings con­ſent, the league holds & is not broken, and therefore the repreſentative body is inferiour to his Majeſties.

The King may erect a Court of Common pleas in what part of the Kingdome he pleaſeth by his letters patents; can the two Houſes do the like?

1 Ed. 5. fol. 2 It cannot be ſaid that the King doth wrong,1 Ed. 5. 4 Ed. 4.25. 5 Ed. 4 29. declared by all the Judges and Serjeants at Law then there.

The reaſon is, nothing can be done in this Common wealth by the Kings grant or any other act of his, as to the Subjects perſons, goods, Lands or liberties, but muſt be ac­cording to eſtabliſhed Lawes, which the Judges are ſworne to obſerve and deliver betweene the King and his people impartially to rich and poore, high and low;2 Parſ. inſtit. 158. and therefore the Juſtices and the Miniſters of Juſtice are to be queſtioned and puniſhed if the Lawes be violated: and no re­flection to be made on the King. All Counſellors and Judges for a yeere and three moneths untill the tumults began this Parliament: were all left18to the ordinary cauſe of Juſtice, what hath been done ſithence is no­torious.

For great Cauſes and conſiderati­ons an Act of Parliament was made for the ſurety of the ſaid Kings per­ſon:R. 3. 1 R. 3. cap. 15. if a Parliament were ſo tender of King Rich. the 3. the Houſes have greater reaſon to care for the preſer­vation of his Majeſty.

The Subjects are bound by their allegiance to ſerve the King for the time being,Hn. 7. 11 H. 7. c. 1. againſt every Rebellion, power and might, reared againſt him within this Land, that it is againſt all Lawes, reaſon and good conſcience, if the King ſhould happen to be van­quiſhed that for the ſaid deed and true duty and allegiance they ſhould ſuffer in any thing, it is ordained they ſhould not; and all Acts of proceſſe of Law hereafter to be made to the contrary are to be void: This Law is to be underſtood of the naturall Perſon of the King; for his politick capacity cannot be vanqui­ſhed, nor war reared againſt it.

Relapſers are to have no benefit of this Act.

It is no Statute,••H. 7.20. 4 H. 7.18. Henry 8. 7 H. 7.14. if the King aſſent not to it, and he may diſaſſent, this proves the negative voice.

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The King hath full power in all cauſes to do juſtice to all men:24 H. 8. c. 12. 25 H. 8. c. 28 this is affirmed of the King, and not of the two Houſes.

The Commons in Parliament ac­knowledge no ſuperiour to the King under God, the Houſe of Commons confeſſe the King to be above the re­preſentative body of the Realm.

Of good right and equity the whole and ſole power of pardoning treaſons, fellonies, &c.27 H. 8. c. 2. Note. belong to the King, as alſo to make all Juſtices of Oyer and Terminer, Judges, Juſti­ces of the peace, &c. This Law con­demns the practice of both Houſes at this time.

The Kings Royall Aſſent to any Act of Parliament ſigned with his hand, expreſſed in his Letters patents under the great Seale, and declared to the Lords and Commons, ſhall be as effectuall,33 H. 8. cap. 21. as if he aſſented in his owne perſon; a vaine Act if the King be virtually in the Houſes.

The King is the head of the Par­liament, the Lords the principal mem­bers of the body,Dier 38. H. 8. fo. 59.60. the Commons the inferiour members, and ſo the body is compoſed, therefore there is no more Parliament without a King, then there is a body without a head.

20

There is a Corporation by the Common-Law,14 H. 8. f. 3. as the King, Lords, and Commons, are a Corporation in Parliament, and therefore they are no body without the King.

The death of the King diſchargeth all mainpriſe to appeare in any Court or to keepe the peace. 34 Ed 3.48. 1 Ed. 4.2.

The death of the King diſconti­nues all Pleas by the Common-law,2 H. 4.8. 1 H. 7.10. 1 Ed. 5 1. which agreeth not with the virtuall power inſiſted upon now.

Writs are diſcontinued by the death of the King;Ed 6. 2 Ed. 6. c. 7. Patents or Judges, Commiſſion for Juſtices of the Peace, Sheriffs, Eſcheators, determined by his death: where is the virtuall power?

All authority and juriſdiction ſpi­rituall and temporall is derived from the King,1 Ed. 6. c. 2. therefore none from the Houſess

His Majeſties Subjects,. 3 Ed. 6. c. 2. 11 H. 7. c. 1. Calvins Caſe. ſ. part. Cooke. 1 Pars inſtit. 69. according to their bounden duties, ought to ſerve the King in his warres, of this ſide or beyond the Seas, beyond the ſeas is to be underſtood for wages: This proves the power of warres, and preparation for warre to be in the King.

It is moſt neceſſary both for com­mon policy and duty of the Subject,5.6 Ed. c. 11.21 to reſtraine all manner of ſhamefull ſtanders againſt their King, which when they be heard, cannot but be o­dible to his true and loving ſubjects, upon whom dependeth the whole u­nity and univerſall weale of the Realme. This condemnes their conti­nuing of the weekely Pamphlets, who have beene ſo foule mouthed againſt his Majeſty.

The puniſhment of all offendors againſt the Lawes,Q. ••ary. 1. Mar. Pl. 2. cap. 2. belongs to the King, and all juriſdictions do, and of right ought to belong to the King. This leaves all to his Majeſty.

All Commiſſions to leavy men for the warre,4.5 P. & M. c. Q Eliz. 10 Eliz. Pl. 315. are awarded by the King: The power of warre onely belongs to the King.

It belongs to the King to defend his people, and to provide Armes and Force: No ſpeech of the two Hou­ſes.

Roy ad ſble governmeni de ſes ſubjects. Plow. 234.242.213. Calvins caſe 7. pars fol. 12. Plow. com. 213.Corps naturall le Roy & politique ſunt un corps. That is, the king hath the ſole government of his Subjects, the bo­dy politick and the naturall body of the King make one body, and not di­vers, and are inſeperable and indivi­ſible.

The body naturall and politique22make one body,Plou. 914.243.213. Calvins caſe 7. pars fol. 12 and are not to be ſe­vered: Ligeance is due to the naturall body; and is due by nature, Gods Law, and Mans Law cannot be forfeited nor renounced by any meanes, it is inſe­parable from the perſon.

Every Member of the Houſe of Commons,1 Eliz cap. 1 Candries caſe, 5 pars fol. 1 at every Parliament takes a corporall Oath: That the King is the ſupreame and onely Governour 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,4Eliz. 3. pars inſtit. fol. 6.2 Candries Caſe, ibid.

The Earle of Eſſex, and others, aſ­ſembled multitudes of men to remove Councellors, adjudged Treaſon by all the Judges of England.

To depoſe the King,39 Eliz. Hil. 1 Iacobi ibid or take him by force, to impriſon him untill he hath yeelded to certaine demands, adjudged Treaſon, and adjudged accordingly in the Lord Cobbams Caſe.

Atiſing to alter Religion eſtabliſh­ed,39 Ed. Brad caſe f. 9. & 16. By all the Judges of England, ibid. 10. Eli. Plow. 316 or any Law, is treaſon; ſo for taking of the Kings Caſtles, Forts, Ports or Shipping, Brooke treaſon 24.3. & 4. Philip and Mary, Dier, Staf­fords Caſe concerning Scarborough.

23

The Law makes not the ſervant greater then the Maſter, nor the ſub­ject greater then the King, for that were to ſubvert order and meaſure.

The Law is not knowne but by Uſage, and Uſage proves the Law,10 Eliz. Plow. 31 and how Uſage hath been is notoriouſ­ly knowne.

The King is our onely rightfull and lawfull Leige Lord and Soveraigne,K. Iames, 1 Iac. cap. 1 9 Ed 4 fol 8 we doe upon the knees of our hearts adnize conſtant Faith, Loyalty, and Obedience to the King and his Roy­all progeny, in this high Court of Par­liament, where all the body of the Realme is either in perſon, or by re­preſentation: We doe acknowledge hat the true and ſincere Religion of he Church is continued and eſtabli­ſhed by the King. And doe recognize, as we are bound by the Law of God and Man, the Realme of England, and the Imperiall crowne thereof doth belong to him by inherent birth­right, and lawfull and undoubted ſucceſſion, and ſubmit our ſelves and our poſterities for ever, untill 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 is24not compleat nor perfect without his Majeſties 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 birth right, and that there can be no Statute without his expreſſe aſſent; and deſtroyes the Chimera of the Kings virtuall being in the Houſes.

To promiſe obedience to the Pope or any other State,3 Iae. cap. 4. 23 Eliz. c. 1. Prince or Poten­tate, other then the King, his heyres and ſucceſſors, is treaſon; and there­fore thoſe perſons who call the houſes the Eſtates offend this Law.

Such Bils as his Majeſty is bound in conſcience and juſtice to paſſe,K. Charles Collection of Ordinan­ces, fol. 727. 1 pars ib. fol. 728. are no Law without his aſſent.

To deſigne the ruine of the Kings perſon, or of Monarchy, is a mon­ſtrous and injurious charge.

Ʋbi lx non diſtinguit, non eſt diſtin­guendum,ibid. fol. 865. all the aforeſaid Acts and Lawes do evidently prove the Mili­tia to belong to the King: that the King is not virtually in the two Hou­ſes; that the King is not conſiderable ſeparately in relation to his politick capacity: that the King is not a per­ſon truſted with a power, but that it is his inherent birth-right from God,25 Nature, and Law, and that he hath not his power from the people: Theſe Lawes have none of thoſe diſtinctions of naturall and politicke, abſtractum & concretum, power and perſon: in Caeſars time this Iſland had Kings, and ever ſince, which is almoſt 17 hundred yeares agoe.

No King can be named, in any time, made in this Kingdome by the people; A Parliament never made King, for they were Kings before: the Parliaments are ſummoned by the Kings Writs, which for Knights, Citizens, and Burgeſſes begins thus: viz.

Rex vic. Wilts. Saltem. Quia Nos de aviſamento & aſſenſia conſilii nri, pro quibuſ. arduis & urgentib. negotiis nos ſtatune & defenſionem Regni nri. Aug. & Eccleſ. Anglie. concernenti­bus quoddam Parliamentum nrum, apud B. teneri ordinavimus & ibid. cum Prelatis Magnatib. & proceribus dicti Regni nri. Colliquium habere & tractatum,ibl precipimus firmiter injungen­do quod facta Proclamatione in26prox. Comitatu tuo poſt receptio­nem ejuſd. Brevis, duos Milites gladiis cinctos, &c. eligi faceas ad faciendum & conſentiendum hiis quae tunc ibidem de Comm•••i Concilio uro. 4 pars Inſt. 241.Angl. foventi Deo contigerit ordinari ſuper Negotiis ante dictis, ita quod pro defectu po­teſtatis bujuſmodi ſeu propter im­providam electionem Mileum, Civium, & Burgenſium praed. dicta negotia ura, infect a non re­manerent.

The King is Principium,a pars Inſtit. fol. 3. & 4 cap••& fi­nis Parliamenti, the body makes not the head, nor that which is poſterior, that which is prior, conſilium non eſt Preceptum, conſiliarii non ſunt Precepto­ris, for Counſell to compell 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 co ſilium; the Writs to the twelve Judges, Kings Counſell, twelve Ma­ſters of the Chancery are conſilium im­penſuri, and ſo of the Peeres. The Writs for the Comminalty. Ad facien­dum & conſentiendum: Which ſhewes what power the repreſentative body27hath, they have not power to given Oath; neither doe they claime it.

The King at all times,The Oath of the Juſtices 18 of E. 3. among Sta­tutes of that yeare. when there is no Parliament, and in Parliament is aſſiſted with the advice of the Jud­ges of the Law, 12 in number, for England at leaſt hath two Sergeants when feweſt; an Attorney and Soli­citour, twelve Maſters of the Chan­cery, his Councell of State conſiſting of ſome great Prelates, and other great Perſonages, verſed in State affaires, when they are feweſt to the number of twelve. All theſe perſons are alwales of great ſubſtance, which is not preſerved, but by the keeping of the Law; The Prelates verſed in divine Law, the other Grandees in affaires of State, and managery of Government; The Judges, Kings Sergeants, Attorney, Solicitour, and Maſters of the Chancery verſed in the Law and Cuſtomes of the Realme: All ſworne to ſerve the King and his people juſtly and truly; the King is alſo ſworne to obſerve the Lawes, and the Judges have in their Oath a clauſe, that they ſhall doe common right to the Kings people, according to the eſtabliſhed Lawes, notwith­ſtanding any command of the King to the contrary, under the Great Seale28or otherwiſe, the people are ſafe by the Lawes in force without any new: The Law finding the Kings of this Realme aſſiſted with ſo many great men of Conſcience, Honour and skill in the rule of Common-wealth, knowledge of the Lawes, 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 paſſe any Grants in his Minority, (there are many great perſons living hold many a thouſand pounds a yeare by patents from Edward the ſixth, paſſed when he was but ten yeares of age) not to be bound to any Law to his prejudice, whereby he doth not binde himſelfe, power of war and peace, coyning of Mony, making all Officers, &c. The Law, for the reaſons aforeſaid, hath ap­proved theſe powers to be unqueſtio­nable in the King, and all Kings have enjoyed them till 3 Nov. 1640.

It will be ſaid notwithſtanding all this fence about the Lawes, the Lawes have been violated, and therefore the ſaid powers muſt not hold, the two Houſes will remedy this.

The anſwer to this is evident:31 There is no time paſt, nor time pre­ſent, nor will there be time to come, ſo long as men manage the Law; but the Lawes will be broken more or leſſe, as appeares 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 yeare and almoſt three Moneths, from 3 Nov. 1640. to 10 Jan. 1641. as aforeſaid, being a yeare and almoſt three Moneths, had time and liberty to queſtion all thoſe perſons who are either cauſes or in­ſtruments of the violation of any of the Lawes.

Examine how both Houſes reme­died them in former times. Firſt, touching Religion, what hath been done this way? Both Houſes in Hen­ry the eights time tendred 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 eight done well to have refuſed the paſſing of this Bill? Both Houſes tendred a Bill to him to take the rea­ding of the Scriptures from moſt of the Laity: Had not King Henry the30eight deſerved much praiſe to reject this Bill? In Queene Maries time both Houſes exhibited a Bill to her to introduce the Popes power, and the Roman Religion; had not Queene 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 refuſall of ſuch Bills have beene juſt, the King being aſſiſted as afore­ſaid, and why not ſo in theſe times?

For the Civill Government, what a Rill did both Houſes preſent to Richard the third, to make good his Title to the Crowne; had it not beene great honour to him to have rejected it? What Bills were exhibi­ted to Henry the eight by both Hou­ſes for baſtardizing of his DaughteElizabeth, a Queene of renowned me­mory, to ſettle the Crowne of this Realme, 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 refuſall of paſſing ſuch Bil's magnified his vertue, 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 humane31frailty, 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 Councell) but there will be ſometimes ſome devia­tion from the Lawes, and therefore the conſtant and certaine powers fix­ed by the ancient Law muſt not be made voyd, and the Kings Miniſters; the Lawes doe puniſh where the Law is tranſgreſſed, and they onely 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 ſithence agreed there ſhall be no more Biſhops at all, might not the King if he had ſo plea­ſed have anſwered this Bill with Le Roys 'aviſera, or nveul? 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 deſtroyes the Writ whereby they are made two Houſes of Parliament, 14 Hen. 7. fol. 22. Eveſqueeſt ſignior de grand honne­r, the King in the Writ beingum praelaris colloquium habtre: Secondly, they have been in all Parliaments ſince we had any, and voted, but in32ſuch wherein they themſelves were concerned: And there have been Bi­ſhops here ſithence we were Chriſti­ans, and the Fundamentall Law of the Kingdome 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 ſithence his Majeſty hath paſſed the Bill for taking away their Vores in Parliament, it is a Law that bindes us ſo farre.

Upon the whole matter the Law hath notably determined that Billa a­greed by both Houſes, pretended to be for the publick good, are to be judged by the King, for in all Kings Reignes Bils have been preferred by both Hou­ſes, which alwaies are pretended to be for the publique good, and many times are not, and were rejected with Roy's auiſera, or Roy ne veult.

This Parliament began the 3 of Novemb. 1640. before that time in all the kings reign no armed power did force any of the peo­ple to doe any thing againſt the Law; what was done was by his Judges, Officers, Re­fers, and Miniſters from that time untill the 10. oſ Ia. 1641. when the King, went from London to avoyd the danger of frequent tu­mults, being a year and 3 months, Privie Counſellors and all his Juſtices & Miniſters were leſt to the Juſtice of the Law, there wanted not time to puniſh puniſhable men.

33

The Sphere of the Houſe of Com­mons is to repreſent the grievances of the Countrey, to grant aydes for the King upon all fit occaſions extraordi­nary, to aſſent to the making or abro­gating of Lawes: The Orb of the Houſe of Lords to reforme erroneous judgements given in the Kings Bench, to redreſſe the delayes of Courts of Juſtice, to receive all Petitions, to ad­viſe his Majeſty with their Councell, to have their Votes in making or abrogating of Lawes, and to propoſe for the common good, what they con­ceive meet.

Lex non cogit ad impoſſibilia, Subjects are not to expect from Kings impoſſi­ble things, ſo many Judges, Councel­lours, Sheriffes, Juſtices of the Peace, Commiſſioners, Miniſters of State, that the King ſhould over-looke them all, cannot be, it is impoſſible.

The King is vertually in his ordi­nary Courts of Juſtice; ſo long as they continue his Courts; their charge is to adminiſter the Lawes in being, and not to delay, deferre, oſell Juſtice for any Commandment of the King. We have Lawes e­nough; Inſtrumenta boni ſaeculi ſunt bonviri, good Miniſters, as Judges and Officers are many times wanting, the34houſes propoſe new Lawes, or abro­gation of the old, both induce novel­ty; the Law for the reaſons aforeſaid, makes the King the onely Judge, who is aſſiſted therein by a great number of grave, learned, and prudent men, as aforeſaid.

For the conſiderations aforeſaid the Kings Party adheared to him, theaw of the Lnnd is their Birth­ight, their Guide, no offence is committed where that is not violated; they found the Commiſſion of A••­ray warrauted by the Law; they found the King in this Parliament to have quitted the Sh- money, Knighthood-money, ſeven Courts of Juſtice, conſented to a Trienn­all Parliament, ſetled the Forreſt hounds, tooke away the Cearke of the Market of the houſhold, truſted the Houſe with the Navy, paſſed an Act not to d••olve this Parlia­ment without the Houſes aſſent; no people in the world ſo free if they could have been content with Lawes, Oathes, and rea•••, 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 by35frequent tumults, that two thirds andt more of the Lords had diſſerted tha 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 connterfet Seale, and in the Kings name againſt his conſent, leavying Warre 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 Oathes to oppoſe Forces raiſed by the King, nor to adhere to him, but to them in this Warre which they call the〈◊〉the Oath, and the V. W. and Covenant.

By ſeverall wayes never uſed in this kingdome, they have raiſed Mo­nies to foment this Warre, and eſpe­cially to inrich ſome among them; namely, firſt, Exiſ, ſecondly, Con­tributions, thirdly, Sequeſtrati­ons, fourthly, Fift-parts, fiftly, Twentieth-parts, ſixtly,〈◊〉money, ſeventhly, Sale of Plunde­red gpods, eightly, Loanes, ninthly, Benedolentes, tenthly,〈◊〉36upon their faſt-dayes, ele­venthly, new Impotions upon Merchandres, twelfely, Gards maintained upon the charge of pri­vate men, thirteenthly, Fifty Sub­••dies at••e time, fourteenthly, Compoſſ••ons with ſuch as they call Delinquents, fifteentlaly, Sale of Bi­ſhppLands, &c.

From the Kings Party meanes of ſubſiſtance are taken;〈◊〉R 3. cap. 3 Bract. li. 3. c. 8. Stan­ford, 192. Sir Ger. Fl••twoods Caſe, S. pars Cook 7. H. 〈◊〉aſt leafe. before any In­dictment, their Lands ſeized, their goods taken, the Law allowes a Tray­tor or Fellon attained, Neceſſaria ſibi & familiae ſuae invictu & veſtitu, where ithe Covenant. Where is the Peti­tion of Right? Where is the liberty of the Subject?

Firſt, we have ayded the King in this Warre 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,〈◊〉Inſit. a 25. a Inſtit. 696 The Law ſo at the Edi­tion of that booke. Hutton and Crook. we have maintained the Commiſſion of Array, by the Kings Command, contrary to their Votes: We are warranted by the Statute of the fifth of Henry the fourth, and the judgement of Sir Edward Cooke, the••cle of the Law as they call him.

Thirdly, we maintained Arch37Biſho••and Biſhops, whom they would ſuppreſſe. Our warrant is, Magna-Charta, and many Statutes more.

Fourthly, we have maintained the Booke of Common mayr, they ſuppreſſe it: Our warrant is five acts of Parliament in Edward the fixt, and Queene Elizabeths time, 5 Pelchae 35, Elizabeth inter placita Coronae in Ban••Regis, New booke of Entries, fol. 252. Penry, for publiſhing two ſcandalous Libels againſt the Church Govern­ment, was indicted, arraigned, attain­ted, and executed at Tyburne.

Fiftly, we maintained the Militi••of the Kingdome to belong to the King, they the contrary: Our war­rant is the Statute of the ſeventh of Edward the firſt, and many Statutes••thence, the practiſe of all times, and the Cuſtome of the Real••e.

Sixthly, we maintained the co••­tereiting of the great Sealto be high Treaſon, and ſo of the uſurpa­tion of the Kings forts, Do is, Shipping, Caſties, and his Re­venue, and the co••ing of Mo­ney, againſt them: We have our warrantby the ſaid Statute of the twenty fifth of Edward the third, Chapter the ſecond, and divers o­thers38 ſince, and the practiſe of all times.

Seventhly, we maintaine that the King is the onely ſupreme Gover­nour in all cauſes: They, that his Majeſty is to be governed by them: Our warrant is the Statutes of the firſt of Queene Elizabeth, Chapter the firſt, and the fifth of Queene Eli­zabeth the firſt.

Eightly, We maintaine that the King is King by an inherent birth-right,9 Ed. 4. fol. . by nature, by Gods Law, and by the Law of the Land. They ſay his Kingly right is an Office upon truſt: Our warrant is the Sta­tute of the firſt of King James, Chap­ter the firſt. And the reſolution of all the Judges of England in Calvins Caſe.

Ninthly, wee maintaine that the politick capacity is not to be ſeve­red from the naturall. They hold the contrary: Our warrant is two Sta­tutes (viz.) exilium 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, Calvins Caſe yeers 7. fol. 11.

Tenthly, wee maintaine that who39••des the King at home or abrod, 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, wee maintaine that the King hih power to diſaſſent to any Bill agreed by the two Hon­ſes: which they deny: Our war­rant is the Statute of the ſecond of Henry the fifth, and the practice of all times, the firſt of King Charles, Chap­ter the ſeventh, the firſt of King James, Chapter the firſt.

Twelfthly, wee maintaine that Parliaments ought to be holden in a grave and peaceable manner, without tumults 3. They allowed multitudes of the meaneſt ſort of the people to come to Weſtminſter to cry for juſtice when they could not have their will,Coll. of Ord. fol. 31. and keepe guards of armed men to wait upon them: Our warrant is the Statute of the ſeventh of Ed­ward the ſecond, and their Oracle.

Thirteenthly, wee maintaine that there is no State withn this Kingdome but the Kings Majeſty, and that to adhere to any other State within this Kingdome is high Treaſon: Our warrant is the Sta­tute40 of the third of King James, Chap­ter the fourth, and the twenty third of Queene Elizabeth, Chapter the firſt.

Fourteenthly, wee maintaine that toevy a wa••e to remove Cou­ſellours, to ater Religion, or any Land eſtabliſhed is high Treaſon, They hold the contrary: Our war­rant is the reſolutions of all the Jud­ges of England in Queene Eliznbeths time, and their Oracle agrees with the ſame.

Fifteenthly, wee maintaine that no man ſhould be impuſoned, put out of his Lands, but by due corſe of Law, and that no man ought to be adjadged to death but by the Law eſtabliſhed, the C••ſtames of the••••me, or by Act of Pa••te­ment; They practiſe the contrary in London, Briſtol, Ket, &c. Our war­rant is Magna Chanta, Chapter the twenty ninth, the P••ition of Right, the third of King Charles, and divers Lawes there mentioned.

Wee of the Kings party, did and do deteſt Monopolies, and Ship­money, and all the grievanes of the people as muh as any men li­ving, wee do well know that our eſtates, lives and fortunes are preſer­ved,41 by the Lawes, and that the King is bound by his Lawes, wee love Par­liamenss, if the Kings Judges, Coun­ſell or Miniſters have done amiſſe, 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 Kingfault.

The Law ſaith the Kings can do no Wrong,11. pars Cooks Reports Magdalen Colledge Caſe. that he is medicus Regni pater patriae ſponſus Regni qui per annu­lum, is eſpouſed to his Realme at his Coronation; The King is Gods Lieutenant, and is not able to do an unjuſt thing, theſe are the words of the Law.

〈◊〉matter is pretended, that the〈◊〉are not ſure to enjoy the Acts paſſed this Parllament, A ſuccee­ding Parliament may repeale them; The objection is very weake; a Parli­ament ſucceeding to that may repeale that repealing Parliament: Thateare is endleſſe and remedileſſe, for it is the eſſence of Parliaments being compleat, and as they ought to be, of Head, and all the Members, to have power over Parliaments before; Par­liaments are as the times are; If a turbulent faction prevailes, the Parli­aments are wicked, as appeares by the examples recited before of extreme42wicked Parliaments; if the times be ſober and modeſt, prudent and not bi­aſſed, the Parliaments are right good, and honourable, and they are good medicines and ſalves; but in this Parliament exceſſit medicina mdum.

In this cauſe and warre betweene the Kings Majeſty, and the two Hou­ſes at Weſtmieſter, what guide had the Subjects of the Land to direct them but the Lawes What meanes could they uſe to diſcerne what to fol­low, what to avoid, but the Lawes? The King declares it Treaſon to ad­here to the Houſes in this warre: The Houſes declare it Treaſon to adhere to the King in this warre: The Sub­jects for a great and conſiderable part of them (Treaſon being ſuch a crime as forfeits life and eſtate, alſo renders a mans Poſterityaſe, beggerly, and infamous) looke upon the Laws, and finde the Letter otho Law requres them to a〈◊〉the King, as before is manifeſted; was ever Subject crimi­nally puniſht in any age or Nation for his purſuit of what the Letter of the Law commands?

The Subjects of the Kingdome finde the diſtinction and interpretati­on now put upon the Lawes of Ab­ſtractum & Concretum, Poweand Per­ſon,34 body politick, and naturall, per­ſonall preſence and virtuall, to have beene condemned by the Law; and ſo the Kings Party had both the Let­ter of the Law, and the interpretati­on of the Letter cleared to their judg­ments, whereby they might evident­ly perceive what ſide to adhere to, what ſatisfaction could modeſt peace­able and loyall men more deſire?

A verbo legis in criminbus & poenis non eſt recedentum, hath been an ap­proved maxime of Law in all ages and times:Coll. of Or­dinances, 777. If the King be King and remaine in his Kingly Office (as they call it) then all the ſaid Lawes are a­gainſt them without colour; they ſay the ſaid Lawes relate to him in his Office, they cannot ſay otherwiſe, they make Commiſſions and Pardons in the Kings name, and the perſon of the King and his body politick can­not, nor ought to be ſevered as hath beene before declared:5 Eliz. cap. 1. 1 Eliz. cap. 1. And the Members of both Houſes have ſworne conſtantly in this Parlia­ment that the King to the onely ſu­preme Governour in all cauſes, e­ver all perſons at this preſent time.

For what of verball or perſonall commands of the King which is ob­jected;44 we affirme few things to be ſubject thereto by the Law: But his Majeſties Command under his Great Seale, which in this warre hath been uſed by the Kings Command for his Commiſſion tosavie and array men, that is no perſonall command (which the Law in ſome caſes diſallowes) but that is ſuch a command, ſo made, as all men hold their Lands by, who hold by Patents; all Corporations have their Charters which hold by Char­ters, and all Judgesa and Officers their places and callings.

It is Objected,〈…〉. the King cannot ſuppreſſe his Courts of Juſtice, and that this warre tended to their ſuppreſſion.

The anſwer is,Sol. 7 pars Thea le of Weſtmer­lands Ca e. 1 Eliz. Dier. 165. 7 prs Cooke. the King cannot nor ought to ſuppreſſe Juſtice, or his Courts of Juſtice, nor ever did; but Courts of Juſtice by abuſer or non uſer ceaſe to be Courts of Juſtice; when Judges are made, and proceedings in thoſe Courts holden by others then Judges made by the King, and againſt his command under the great Seale,The caſe of diſcontinu­ance of Proceſſe. and his Majeſty is not obeyed, but the Votes of the Houſes, and his Judges breaking that condition in Law, of truſt and loyalty, implyed in their Patents, are no longer his Jud­ges;45 they obey and exerciſe their pla­ces by vertue of Writs and Proceſſes under a counterfet Seale: The King onely can make Judges, the twenty ſeventh of Henry the eighth, Chapter the twenty fourth, Juſtices of the Peace, &c. The Kings Patent makes Judges:28 H. 8. D••r 11. The chiefe Juſtice of the Kings Bench is made by the Kings Writ onely of all the Judges.

The Great Seale is the key of the Kingdome,Artiuli ſu­per chartas cap. 5. 2 pars inſtit. 552. and meet it is that the King ſhould have the key of his Kingdome about him; which confutes their ſaying that the King got the Seale away ſurreptitiouſly.

The King,Brittn. ſol. 23. and he only may remove his Courts from Weſtminſter into ſome other place: at Yorke the Tearmes were kept for ſeven yeares, in Ed­ward the firſt's time; but for the Court of Common Pleas, the placmuſt be certaine; for the Kings Bench and Chancery, the King by the Law may command them to attend his perſon alwaies if it ſeeme ſo meet unto him; but the removing of the Common Pleas muſt be to a place certaine, and ſo notified to the people.

All the Bookes of Law in all times agree, that the King may grant conu­ſance46of all Pleas at his pleaſure with­in any County or Precinct to be hol­den there onely, and remove the Courts from Weſtminſter to ſome other place (for the Common Pleas,6 H. 7.9. 6 Eliz Dier. 226. the place muſt be certaine, and ſo notifi­ed to the people) and adjourne the Tearmes as he ſees cauſe: All which the two houſes have violated.

47

Some ſeeming objections of Ma­ſter Prinn's, ſcattered in di­vers books anſwered, and the truth thereby more fully cleered.

THE firſt of Henry the fourth,1 Ob. revived the Statute of the ele­venth of Richard the ſecond, and repeales the one and twentieth of Ri­chard the ſecond, whereby certaine perſons were declared Traytors to the King and kingdome; being of the Kings Party, by 11 Rich. 2.

True, but note, the eleventh of Ri­chard the ſecond,Sol. a Parliament beſet with 40000. men, and the King aſ­ſents to it, ſo an Act, and beſides the firſt of Henry the fourth declares, that the Treaſons mentioned in the Act of the eleventh of Richard the ſecond, being but againſt a few private men, ſhall not be drawne into example, and that no Treaſon ſhould be but ſuch as the twenty fifth of Edward the third declares:9 Ed. 4. fol. 0. All theſe are Acts paſſed by the King, and the three E­ſtates, nor to be drawne into exam­ple in a tumultuous time, by a beſie­ged Parliament, with an Army, and48 Henry the fourth being an Uſurper makes that Act of the firſt of Henry the fourth to ſecure himſelfe: Alſo what is this to the Votes of the two Houſes onely at this time?

The Court of Parliament is above the King,2. Ob. for it may avoyd his Char­ters, Commiſſions, &c. granted againſt the Law.

And the Law is above the King.

By the ſame reaſon you may ſay that the Courts of Chancery,Sol. or any of the Courts of Law at Weſtminſter are above the King, for they make of no effect the Kings Charters, which are paſſed againſt the Law; and the King is ſubject to Law, and ſworne to maintaine it. Againe, it is no Parlia­ment without the King, and the King is the head thereof, he is principium capus & finis of a Parliament, as Mo­dus tenendi Parliament, hath it, and two houſes onely, want principiwn ca­put & finis of a Parliament, and it is a ſorry Parliament that wants all theſe: And therefore to ſay that Par­liaments are above the King, is to ſay the King is above himſelfe.

The Parliament can enlarge the Kings Prerogative,3. Ob. therefore it is above him.

If the King aſſent,Sol. otherwiſe not;49 and then it is an Act of Parliament, and otherwiſe no Act.

Bracton ſaith, God, the Law,4 Ob. and the Kings Court, (viz.) his Earles and Ba­rons are above the King, viz. in Par­liament, as Mr. Prynne expounds it.

Where is then the Houſe of Com­mons? Indeed, take God, the Law,Sol. and Earles and Barons together, it is true; but to affirme that the Earles and Barons in Parliament are above the King (the King being the head of the Parliament, and they one of the members) how an inferiour member is above the head, is hard to conceive; beſides, that poſition deſtroyes all Mr. Prynnes diſcourſe, who attributes much to the Houſe of Commons.

The King is but one of the three E­ſtates of Parliament,5 Ob. and two are grea­ter then one; therefore above.

The Legs, Armes,Sol. and Trunke of the body are greater then the Head, and yet not above, nor with life with­out it; the argument holds for quan­tity, but not for quality; and in truth, the King is none of the three Eſtates but above them all; the three Eſtates are, the Lords Spirituall, the Lords Temporall, and the Commons; Cake, their Oracle, in his Chap. of Parl. f. 1

In Corporations, the greater num­ber50of voyces make all the Acts of the Corporation valid;6 Ob. therefore ſo in Parliament.

By this reaſon the Kings aſſent is needleſſe,Sol. and to no end: and all the Acts of Parliament formerly mentio­ned, and Law-bookes have quite miſtaken the matter, which with una­nimous voyce requires the Kings aſ­ſent as neceſſary: beſides, the Cor­porations are ſo conſtituted by the Kings Charters, and the greater num­ber of votes ſhall make their Acts valid.

The King,7 Ob. as King, is preſent in his Parliament as well as in all other his Courts of Juſtice, howbeit he is not there.

In his other Courts of Juſtice he hath no voyce,Sol. he is none of the Jud­ges, in the Parliament he hath; if his preſence be not neceſſary, his voyce is not, nor his aſſent.

The originall prime legiſlative pow­er of making Lawes,8 Ob. Soveraigne power of Parlia­ments, 4.44. Sol. to binde the Sub­jects and their poſterity, reſts not in the King, but in the Kingdome and Parliament, which repreſents it.

Maſter Prinne in the ſame leaſe affirmes, and truly, that the Kings aſſent is generally requiſite to paſſe Lawes and ratifie them; the51King is the Head of the Kingdome and Parliament, how then can a Body act without a Head?

A major part of a Corporation bindes,9 Ob. therefore the major part in Parliament, and ſo of by Lawes.

The Corporation is ſo bound,Sol. ei­ther by the Kings Charters, or by pre­ſcription, which ſometimes had the Kings conceſſion; but preſcription, and Law, and practiſe, alwaies left the King a negative voyce.

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 Lawes mi­niſtred in the Reignes of Uſurpers;11 Ob. binde rightfull Kings, go

What is this to prove the two Hou­ſes power only, which is the queſtion? Sol. 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,9 Ed. 4. and ſuch being Traytours and Rebells to the Regent King (having renounced the true King) when the lawfull King is reſtored, may be pu­niſhed by him for their Treaſon a­gainſt the Uſurper: But here is a King ſtill in both caſes, and the pro­ceedings52at Law holds, the Judges having their Patents from the being Kings, in the Reignes of Kings, de facto or de jure; for all Kings are bound, and ſworne to obſerve the Lawes.

A King dyes without Heire,12 Ob. is an Infant, non compos mentis, &c. the two Houſes may eſtabliſh Lawes, go

There is no Inter-regnum in Eng­land,Sol. as appeares by all our Bookes of Law; and therefore the dying with­out Heire is a vaine ſuppoſition, and by their principle he is conſiderable in his politick capacity, which cannot dye at all: The Protectour, aſſiſted by the Councell of the King at Law, his twelve Judges, the Councell of State, his Attorney, Solicitor, and two Sergeants at Law, his twelve Maſters of the Chancery, hath in the Kings behalfe, and ever had a Nega­tive Voyce; but what is this to the preſent queſtion? We have a King of full age, of grear wiſdome and judge­ment; the power of the two Houſes in ſuch a caſe to be over the King, can­not be ſhowne.

The King cannot diſaſſent to pub­lique and neceſſary Bills for the com­mon good,13 Ob. go

Nor ever did good King;Sol. but who53 ſhall be judge, whether they be pub­lique and neceſſary? The major part in either of the Houſes, for paſſing of Bills ſo pretended, may be but one or two voyces, or very few, and per­haps of no judicious men; is it not then fitter or more agreeable to rea­ſon, that his Majeſty and Councell 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 publick good, rather then a minor, (of which ſort there may be in the Houſes) or a weake 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 maintaine juſtas leges & conſuetudines quas vulgas elegerit, go

Popery hath been in the King­dome,Sol. and therefore to continue it ſtill, will not be taken for a good ar­gument; when things are ſetled for many ages, to looke 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 our54extant Lawes ſay, that the Kings Of­fice is an heritage inherent in the bloud of our Kings, and their Birth­right.

And Uſurpers that come in by the conſent of the people,Ed. 4. c. 1 are Kings de facto, but not de jure, as appeares by the Acts of Parliament declaring them ſo; and by all our Law-bookes, and the fundamentall conſtitution of the Land, Regall power is hereditary and not elective.

For the words (vulgus elegerit) if vulgus be applyed to the Houſe of Commons,1 Hen 7. they of themſelves can make no Lawes: The Peeres were never yet termed vulgus; but allowing they be ſo called, the Lawes to be made be juſt, and who is fit to judge there­of, is before made evident.

Cuſtomes cannot referre to future time,15 Ob. and both are coupled, Lawes and Cuſtomes.

Princes have been depoſed, and may be by the two Houſes, go

The depoſers were Traytours,Sol. as appeares 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,55 and they who were to be the ſuc­ceeding Kings in the head of them, as Edward the third, and Henry the fourth.

The appeale to the Parliament for errours in Judgements in all Courts is frepuent,16 Ob. go

This is onely to the Houſe of Lords,Sol. and that is not the Parlia­ment; the Houſe of Commons have nothing to doe therewith; and in the Houſe of Peeres, if a Writ of Errour 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 Kings Councell, and twelve Ma­ſters of the Chancery aſſiſt there, by whoſe advice erronious 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 appeares by the Statute of the thirteenth of Queene Elizabeth, Chapter the firſt: And the diſcent of the Crowne is guided rather by a Par­liamentary Title then by common Law, go

If this objection be true,Sol. that the56 Title to the Crowne is by Parlia­ment, then we had no Uſurpers, for they all had Parliaments to backe them; yea, Richard the third, that Monſter. All our Bookes of Law ſay they have the Crowne by diſcent, and the Statutes of the Land declare, that they have the ſame by inherent birth-right. And the Statute of the thirteenth of Elizabeth, the firſt Chapter, was made to ſecure Queene Elizabeth againſt the Queene of Scots, then in the Kingdome, clay­ming the Crowne of England, and having many adherents: And that Statute to that end affirmes no ſuch power in the two Houſes (which is the queſtion) but in Queene Eliza­beth, and the two Houſes, which makes againſt the pretence of this time.

Maſter Prynne, fol. 104 of his booke, intituled, the Parliaments ſupreme power, &c. Objecting the Statute of the firſt of Queens Eliza­beth, and his owne Oath, that the King is the onely ſupreame Gover­hour of this Realme; Anſwers, The Parliament is the ſupreme power, and the King ſupreme Governour: And yet there he allowes him a Nega­ive Voyce; and fol. 107. confeſſeth,57 that Acts of Parliament tranſlated the Crowne from the right Heires at Common-Law, to others who had no good Title, then the Parlimentary Title makes not the King, ſo power­full in truth, that it eſcapes from a man unawares: To make a di­ſtinction betweene ſupreame Gover­nour, and ſupreame power, is very ſtrange, for who can governe without power?

The King aſſembles the Parlia­ment by his Writ, adjournes,Vide Speep. 645.4. par. Inſtit. 27. & 2. pro­rogues, and diſſolves the Parliament, by the Law at his pleaſure, as is evi­dent by conſtant practiſe, the Houſe of Commons never ſate after an ad­journement of the Parliament by the Kings Command: Where is the ſu­preame power?

The King by his Oath is bound to deny no man right,18 Ob. much leſſe the Parliament, to agree to all juſt and neceſſary Lawes propoſed by them to the King. This is the ſubſtance of the diſcourſe againſt the Kings Nega­tive Voyce.

The King is ſo hound as is ſet downe in the Objection;Sol. but who ſhall judge whether the Bill propoſed be juſt and neceſſary? For all that they do propoſe are ſo pretended and85carried in either Houſe, ſometimes by one or two Voyces; or ſome ſew as aforeſaid, and certainly it hath been ſhewen, the King, his Coun­ſell of State, his Judges, Sergeants, Attorney, Sollicitor, and twelve Maſters of the Chancery can better judge of them, then two or three, or few more.

Mr. Prynne, fol. 45. In his Booke of the Parliaments intereſt to nomi­nate Prnvy Councellors, calleth the opinion of the Spencers to divide the Perſon of the King from his Crowne,Calvins caſe 7 pars, fol. 1. a ſtringe opinion, and cites Calvins Caſe, but leaves out the concluſions therein mentioned, fol. 11. Maſter Prynne ſaith there, But let this opinion be what it will; without the Kings Grace and Pardon it will goe very farre, and two Acts of Parliament there mentioned are be­yond an opinion: And in his Book of the opening of the Great Seale, fol. 17. The Parliament hath no juriſdiction to uſe the Grear Seale for Pardons Ge­nerall or Particular. Where is the ſupreme power then?

Mr.19. Ob. Prynnes (opening of the Seale) pag. 19. ſaith, the Noblemen and State, the day after the Funerall of King Henry the third (King Ed­ward59 the firſt his Sonne being in the Holy Land) made a new Great Seale, and Keepers of the ſame; And in Henry the ſixts time, in the firſt yeare of his Reigne, the like was done in Parliament.

A facto, all jus,Sol. is no good Argu­ment, for than in Edward the firſts time it was no Parliament, for King Henry the third was dead, which diſ­ſolyed, the Parliament, if called in his time, and it could be no Parlia­ment of Edward the firſts time, for no Writ iſſued to ſummon a Parlia­ment in his Name, nor could iſſue but under that New Seale, it was ſo ſuddainely done afterHenry the thirds death, King Edward the firſt being then in the Holy Land, it was the firſt yeare of his Reigne, and no Parliament was held that yeare, nor the ſecond yeare of his Reigne: The firſt Parliament that was in his Reigne, was in the third yeare of his Reigne, as appeares by the printed Acts: Alſo the making of that Seale was by ſome Lords then pre­ſent; What hand had the Commons in it? Concerning the Seale made in Henry the ſixths time, the Pro­tector was vice-Roy according to the courſe of Law, and ſo the making60of that Seale was by the Protector in the Kings name, and that Prote­ctor, Humphrey Duke of Glou­ceſter, as Protectour, in the Kings Name ſummoned that Parliament, and was Protector made by the Lords, and not in Parliament, as appeareth plainely, for that Parliament was in the firſt of Henry the ſixth, and the firſt holden in his time, and power given by Commiſſion to the ſaid Duke, then Protector, to ſum­mon that Parliament, Prynne, ibid. fol. 19. But the new counterfeit Seale was made when the King was at Ox­ford, in his owne Kingdome, and not in the holy Land.

Mr.20 Ob. Prynne in his Booke of the two Houſes power to impoſe Taxes, reſtraines Malignants againſt any Ha­beaCorpus, &c. ſaith, that the Par­liament is above Magna Charta, and fol. 15. ibid. The Parliament hath po­wer over Magna Charta to repeale the ſame when there is cauſe.

This Argument ſuppoſeth that they have the Kings power,Sol. which hath appeared formerly they have not: But ſuppoſe they had, Magna Charta containes many Morall Lawes, which by the Law of the Land a Parliament cannot alter, 21 H. 7.2. 61D. and Student, 2 Dialogue. For example, it ſaith cap. 11. Juſtice ſhall not be ſold, delayed, nor denyed to any man; but by this Argument the Parliament may make Law to delay, deny, and to ſell Juſtice, which ſurely is a very ill poſition to maintaine.

What they would have, doth now by the Propoſitions ſent to New­caſtie to his Majeſty appeare, where­by they would have him diveſt him­ſelfe, and ſettle in them all his King­ly power by Sea and Land, and of themſelves to have power, without him, to lay upon the people of this Land what taxes they thinke meet, to aboliſh the Common prayer­booke, to aboliſh Epiſcopacie, and to introduce a Church Government not yet agreed, but ſuch as they ſhall a­gree on.

His Majeſty finding a prevailing party in both Houſes to ſteere this courſe, and being chaſed away with Tumults from London, leaves the Houſes for theſe Reaſons, (viz.)

Firſt, becauſe to alter the Go­vernment for Religion, is againſt the Kings Oath:

Secondly, againſt their Oaths: For every of them hath ſworne in this Parliament, That His Majeſty62is the onely ſupreme Governour in all Cauſes Eccleſiaſticall and over all perſons.

Thirdly, this courſe is againſt Magna Charta, the 1. Chap. and the laſt. Salve ſint Epiſcopis omnes liber ta­les ſue, Confirmed by thirty two Acts of Parliament: and in the two and fortieth of Edward the third, the firſt Chapter enacts, if any Statute be made to the contrary, it ſhall be hol­den for none: and ſo it is for judge­ments at Law, in the 25 of Edward the 1. chap. 1.2. The great Charter is declared to be the Common Law of the Land.

Fourthly, they endeavout to take away by their Propoſitions, the Go­vernment of Biſhops, which is as ancient as Chriſtianity in this. Land, and the Books of Common prayet ſettled by five Acts of Parliament, and compiled by 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 Realme, have enjoyed: That enjoy­ment and uſage makes the Law, and a right by the ſame to his Majeſty. 63They are againſt their owne Pro­teſtation made this Parliament, (viz.) to maintain his Royall Perſon, Honour, and Eſtate; They are a­gainſt their Covenant, which doth ſay, that they will not diiniſh his juſt power and Greatneſſe.

For theſe reaſons his Majeſty hath leſt them, and as is beleeved, will refuſe to agree to the ſaid Propoſi­tions, as by the fundamentall Law of the Land he may (having a Ne­gative Voice) to any Bils propoſed.

The reſult of all is upon the whole matter: That the King thus leaving of the Houſes, and his deniall to paſſe the ſaid Propoſitions, are ſo far from making him a Tyrant, or not in a condition to governe, at the pre­ſent; that thereby he is rendred a juſt; Magnanimous, and pious Prince: ſo that by this it appeares clearely to whom the Miſeries of theſe times are to be imputed. The remedy for all, is, an Act of Oblivi­on, and a Generall Pardon.

God ſave the King.

DAVID JENKINS, now Priſoner in the Tower:
64

The Vindication of Iudge Jenkins Priſoner in the Tower, the 29. of April, 1647.

I Was convened upon Saturday the 10 of this moneth of Aprill before a Committee of the Houſe of Commons, wherein Maſter Co­bet had the Chaire; 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 wt ſet downe 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, for not acknowledging, nor obeying the power of the two Ponſes, by adhering to the King in this warre. I deny this to be Treaſon, for the ſupreame and onely power by the Lawes of this Land, is in the King: If I ſhould ſubmit to any examination derived from your vpwir, which by the Negative Oath ſtands in oppoſition to the Kings power, I45 ſhould confeſſe the power to be in you, and ſo condemne my ſelfe for a Traitour, which I neither ought nor will do.

I am ſworne to obey the King, and the Lawes of the Land; you have not power to examine me by thoſe Lawes, but by the Kings writ, Patent, or Commiſſion; if you can produce either thereof, I will anſwer the queſtions you ſhall propound; otherwiſs I can­not anſwer thereto, without the breach of my Oath, and the viola­tion of the Lawes, which I will not do to ſave my life.

You your ſelves, all of you this Parliament, hive ſworne that the King is our onely and ſupreame Governour; your Proteſtation, your Vow and Covenant; your ſolemne League and Covenant, your Declarations, all of them publiſht to the Kingdome, that your ſcope is the maintenance of the Lawes; thoſe Lawes are and muſt be derived to us, and enlive­ned by the onely ſupreame Gover­nour, the Fountaine of Iuſtice, and the life of the Law, the King. The Parliaments are called by his writs, the Iudges ſit by his Pa­tents,66 ſo of all other Dcers, the Cities audownes corporate, go­verne by the Kings Charters; and therefore ſince by the Law I can­not be examinb by you, without a power veriveby his Mjeſty, I neither can, nor will, nor ougte you to examine me upon any que­ſtions. But if as private Gentle­men, you ſhall be pleaſed to〈◊〉me any queſtions, I ſhall really and truely anſwer evry ſuch que­stion, as you ſhall demand.

David Jenkins.

This Paper hath beene miſ-repre­ſented to the good people of this Ci­ty by a printed one, ſtilling it my Re­cantation, which I owne not; and be­ſides is in it ſelfe repugnant (juſt like theſe times) the Body fals out with the Head. To vindicate my ſelfe from that Recantation, and to publiſh to the world the realty of the Paper then delivered to Mr. Corbt and the matter therein contained, I have publiſhed this enſuing diſcourſe.

No perſon whohath committed Treaſon, Mutter,〈◊〉elony, hath any aſſurance at all for ſo much67as one houre of life, Lands or Goods, without the Kings grtions par­don, 27. Hen. 8. cap. 24.

The King is not virtually in the two Houſes at VVeſtminſter, whereby they may give any aſſurance at all, to any perſon, in any thing, for any ſuch offence.

1. The Houſe of Commons have beelard to the Kingdome in their Declaration of the 28 of November laſt, to thecots Papers, p. 8. That the King at this time is not in a con­dition to govere. No perſon or thing can derive a vertue to other men, or things, which it ſelfe hath not; and therefore it is impoſſible that they ſhould have a vertue from the King to govern, which they declare he hath not himſelfe to give.

2 The Law of the Land is,5 Elizab. cap. 1. That no perſon in any Parliament hath a vayce in the Houſe of Commons, but that he ſtands a prſon to all intents and purpoſes as if he had uevr boeu electd or returned, if before he ſit in the Hauſe, he take not hs Datupon the holy Evan­gel ſts, that the Kings Majeſty is the onely ond ſupreame Governour over all perſons in all Canſes. All the Members of the ſaid Houſe have29taken it, and at all times as they are returned do take it; otherwiſe they have no colour to intermeddle with the publick Affaires. How doth this Solemne and Legall Oath agree with their ſaid Declaration, That the King is in no condition to govern〈◊〉By the one it is ſworne, he is the on­ly ſupreme Governour; by the other, that he is not in a condition to go­verne.

3. The Oath is not, that the King was, or ought to be, or had been, be­fore he was ſeduced by ill Councell, our onely and ſupreame Governour in all Cauſes, over all perſons; but in the preſent tenſe, that he iont only and ſupream Governont, at this pre­ſent, in all cauſes and over all per­ſons. So they the ſame perſons ſwear one thing, and declare to the King­dome the contrary of the ſame thing, at the ſame time, in that which con­cerneth the weale of all this Nation.

4 The Miniſters in the Pulpits do not ſay, what they ſwear in the Houſe of Commons. Who ever heard fih­ence this unnaturall Warre, any of their Presbyters attribute that to his Majeſty which they ſweare? The rea­ſon is, their Oath is taken at weſtmin­ſter amongſt themſelves: that which69their Miniſters pray and preach, goes amongſt the people. To tell the peo­ple that the King is now their only and ſupreame Governour in all Cau­ſes, is contrary to that the Houſes doe now practiſe, and to all they act and maintaine. They, the two Houſes forſooth, are the only and ſupreame Governours in default of the King, for that he hath leſt his great Councell, and will not come to them, and yet the King deſires to come, but they wil not ſuffer him, but keepe him priſoner at Holmby: ſo well doe their Acti­ons and Oathes agree.

5. They ſweare now, King Charies is their only and ſupreame Governor; but with a reſolution at the time of the Oath taking, and before and after, that he ſhall not be only or ſupreame Governour, or only and ſupreame, but not any Governour at all: For there is no point of Government, but for ſome yeares paſt they have taken to themſelves, and uſed his name only, to abuſe and deceive the people.

6. That this virtuall power is a meere fiction, their Propoſitions ſent to Oxford to Neweaſtle, to be ſig­ned by the King, doe prove it ſo. What needs this adoe, if they have the vir­tuall Power with them at Wiſtmin­ſter?

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7. To affirme that the Kings po­wer (which is the vertue they talke of) is ſeparable from his perſon is High Treaſon by the Law of the Land; which is ſo declared by that learned man of the Law, Sir Edward Cocke ſo much magnified by this preſent Parliament, who in the 7 part of his Reports in Calving caſe, fol. 11 ſaith thus. In the reigne of Edward the ſecond, the Supencers,