The Armies Jndempnity.

UPon the publiſhing of the Ordinance of the 22. of this Inſtant May for the Indempnity of the Army, certaine Gentlemen well affected to the Peace of the Kingdome, and ſafety of the Army, deſired me to ſet downe in writing, whether by the Law of the Land, the ſaid Ordinance did ſecure them from danger, as to the matters therein mentioned? For whoſe ſatisfaction in a bu­ſineſſe wherein the lives and fortunes of ſo many men were con­cerned, and alſo the Peace of the Kingdome involved; I conceived I was bound in duty and Conſcience faithfully and truly to ſet downe what the Law of the Land therein is; which accordingly I have withall ſincerity expreſſed in this following diſcourſe.

The danger of the Army by the Law of the Land is apparent•o all men. 25. Ed. 3. Cap. 2. 11. Ri. 2. Cap. 3. 1. Hen. 4. Cap. 10. 1. & 2. Phi. & Mary Cap. 10. 3. Pars inſti­tutes pag. 22. & 2 pars inſtituts pag. 47.48. & 4. pars inſtituts pag. 23.48.29•.It is high treaſon by the Law of the Land to levy warre againſt the King, to compaſſe or immagine his death, or of his Queene, or of his eldeſt Sonne, to counterfeit his money, or his great Seale. They are the words of the Law, other treaſons then are ſpecified in that Act are declared to be no treaſons untill the King and his Parliament ſhall declare otherwiſe, they are the words of the Law.

King and Commons, King and Lords, Commons and Lords cannot declare any other thing to be treaſon, then there is decla­red: as appeares by the Lord Cooke in the places cited in the Margin: a law-booke publiſhed by the order of the Houſe of Commons this Parliament, as appeares in the laſt leafe of the ſecond part of the inſtitutes publiſhed likewiſe by their order.

The reſolutions of all the Judges of England; upon the ſaid Statute of the 25. Ed. 3. (as appeares in the ſaid 3. part inſtitutes2 Chap.3. pars inſti­tutes Cap. treaſon: pag. 9. & 10.12. Mr. St. Iohn the Soliciter in his ſpeech upon the ar­raignment of the Earle of Strafford, printed by order of the Houſe of Commons pag. 7.13. 4. pars inſti­tutes, Cap. Parliament pag. 25. 11. Hen. 7. Cap. 1. Stamford. lib. 2. fol 99. 18. Ed. 3. Statute at large 144. 20. Ed. 3. Capa. 11. Ri. 2. Cap. 10. 4. pars inſti­tutes pag. 23.48.29. 3. pars inſti­tutes pag. 22. 2. pars inſti­tutes 47.48. 1. pars inſti­tutes 195. High Treaſon) have been that to impriſon the King untill he agree to certaine demandes is high treaſon to ſeiſe his Ports, Forts, Magazine for warre, are high treaſon: to alter the Lawes is high treaſon.

The word King in the Statute of 25. Ed. 3. Cap. •. muſt be underſtood of the Kings naturall perſon: for that perſon can onely dye, have a wife, have a Sonne, and be impriſoned.

The priviledge of Parliament protects no man from treaſon or fellony: howbeit he be a member, much leſſe can they protect o­thers: Thoſe who cannot protect themſelves, have no colour to make Ordinances to protect others who are no members.

The Statute of 11. Hen. 7. Cap. 1. doth by expreſſe words free all perſons who adhere to the King.

The Army by an act of Indempnity free themſelves from all thoſe dangers, which an Ordinance can no more do, then repeale all the Lawes of the Land, the whole and ſole power by law to pardon all treaſons and fellonies, being ſolely and wholly in the King as is cleared by the 27. H. 8. Chap. 24. and the Law of the Land in all times.

Having ſhewed the danger of the Army by the Law of the Land, next conſider the Ordinance of the Lords and Commons publiſhed the 22. of May inſtant for their Indempnity. By the enſuing diſcourſe it doth appeare they have no Indempnity at all thereby.

The Indempnity propoſed by the Ordinance, is for any act done by the Authority of Parliament, or for the ſervice or bene­fit thereof, and that the Judges and all other Miniſters of Juſtice ſhall allow thereof.

This Ordinance cannot ſecure the Army for theſe reaſons.

I.Their Judges are ſworne to do Juſtice according to the Law of the Land: This Ordinance is no Law of the Land, and there­fore the Judges muſt be forſworne men, if they obey it, and no man can beleeve they will perjure themſelves ſo palpably and vi­ſibly to the eye of the world.

II.If the Judges conceive (as they may) that the taking of other mens horſes or goods is not by the Authority of Parliament, or3 for the ſervice and benefit thereof, the ſouldier dies for it:Prince, caſe, 8. reports. they may ſay to ſteale or robany man of his goods is not for the Parliaments ſervice, but againſt it.

III.This Ordinance is againſt their Ordinances which expreſ­ly prohibits plundering, and ſo there is one ordinance againſt another, whereby their Judges have an outlet to proceed up­on the one or the other, and thereby the Army hath no man­ner of ſecurity.

IIII.28. Auguſti. 1642. collect of Ordinances firſt part 565. 592. 605. ſeverall Or­dinances. 4. pars inſti­tutes pag. 1. 3 pars inſti­tutes pag. •2 1 pars inſti­tutes pag. 1. 11. Hen. 8. 3. Dier 28. Hen. 8. f. 60 12. Hen. 7.20. 1. pars inſtitutes 159. Princes caſe 8. pars reports. 1. pars in­ſtitutes 109 1. pars inſti­tutes pag. 110. 4. pars inſti­tutes p. 49.This Ordinance is reſtrained to the Ordinance, ſervice, or benefit of the Parliament. The Lords and Commons make no more a Parliament by the Law of the Land, then a body without a head makes a man, for a Parliament is a body com­poſed of a King their head, the Lords and Commons, and all make one body, and that is the Parliament and none other, and the Judges may, ought, and I beleeve will according­ly to their oathes proceede, as not bound at all by this Ordi­nance. For it is reſtrained to the Ordinance of Parliament, ſervice, or benefit thereof, whereas the two Houſes are not the Parliaments, but onely parts thereof, and by the abuſe and miſunderſtanding of this word Parliament, they have miſerably deceived the people.

V.The word Parliament is a French word (howbeit ſuch Aſ­ſemblies were before the Northern conqueſt herein are) and ſignifieth in that language to conſult and treat: that is the ſence of Parlet in the French Tongue. The writ whereby the two Houſes are aſſembled, which is called the writ of Sum­mons of Parliament at all times, and at this Parliament uſed, and which is the warrant, ground and Foundation of their meeting, is for the Lords of the Houſe of Peers, the Judges and the Kings Councel, to conſult and treat with the King (that is the Parlet) of great concernments touching, 1. The King, 2. The defence of his Kingdome, 3. The defence of the Church of England. It cannot be a Parliament that will not parle with the King, but keepe him in priſon, and not ſuffer him to come to them and parle, and therefore the Law, and4 ſence, and reaſon, informing every man that this is no manner of Parliament (the King with whom they ſhould parle, being ſo reſtrained, that they will not parie with him) the Army hath no manner of ſecurity by this Ordinance. For their In­demnification refers to that which is not in being, untill the King be at liberty.

VI.It is more then probable, that their Judges before the laſt Circuit, had inſtructions to the effect of this Ordinance: but they the Judges making conſcience of their oath, laid aſide the ſaid inſtructions, and ought and may, and it is believed, will no more regard this Ordinance, then the ſaid Inſtructi­ons:The common Souldiers ſecond apolo­gie. 6 Grievances of the Army publiſhed 15. May inſtant 3 Grievan­ces of colonel Birches Re­giment. what was done the laſt Circuit, notwithſtanding the ſaid Inſtructions, the Army well knowes, touching many of their fellow Souldiers.

VII.The Houſes in their firſt Propoſition to his Majeſty for a ſafe and well-grounded peace ſent to Newcaſtle, deſire a par­don from His Majeſty for themſelves: they who deſire a pardon, cannot grant a pardon (common reaſon dictates this to every man) and therefore that the army ſhould accept an Indemnity from them, who ſeek it for themſelves, or ſhould conceive it of any manner of force, is a fancie, that no man in the whole Army, but may apprehend that it is vain and a meere deluſion.

VIII.His Majeſty by his gracious Meſſage of the 12, of this in­ſtant May, and publiſhed two dayes ſithence, hath offered an act of oblivion, a generall pardon to all his people; this done the Law doth indemnifie the Army without all manner of ſcruple, for any thing that hath beene done: for it is an Act of Parliament, when the King and two Houſes concur, and binds all men: there is no ſafety by the Ordinance, there is ſafety by an Act of Indemnity; and will not reaſonable men prefer that that is ſafe, before that which is unſafe.

IX.His Majeſty by his ſaid Letter agrees to pay the arreares of the Army; I am ſure that is a publike debt, and the chie­feſt5 and the firſt that by the two houſes ſhould be paid, and before any divident among themſelves, for their bloud, limbes, & lives have put and kept them at reſt in the power they have. So by this concurrence of his Majeſty for your indemnity, and for your arrears, the Army have not an Or­dinance, or the publike Faith, but the Law of the Land to make ſure unto them their indemnity, for all acts, and for their arreares, and therewith alſo bring peace to the Land.

X.The Kingdome and People generally deſire theſe things. To ſuch an army juſt and reaſonable things muſt not be de­nyed, the things formerly propoſed are moſt juſt and reaſo­nable: you may have them if you will; if you will not, you will render this Kingdome miſerable,Mr. Pyms Speech a­gainſt the E. of Strafford, pag. 16. 6 Conſidera­tion printed by command of the Houſe of Commons. wherein you will have your ſhares of miſery: the head and the body is ſuch an incorporation as cannot bee diſſolved without the de­ſtruction of both.

I ſay againe, it is a certain truth, this Kingdome without an Act of oblivion, and a generall pardon, and the payment of Souldiers arreares, and a meet regard had to tender con­ſciences will unavoydably be ruined.

25. Edw. 3. Chap. 2. A Declaration what Offences ſhall bee adjudged Treaſon.

WHereas divers opinions have been before this time, in what caſe Treaſon ſhall be ſaid, and in what not: The King at the requeſt of the Lords and of the Commons hath made a Declaration in the manner as hereafter follow­eth: That is to ſay, When a man doth compaſſe, or imagine the death of our Lord the King, or of our Lady the Queene. or of their eldeſt Son and Heire: or if a man d•e violate the Kings companion, or the Kings eldeſt daughter unmarryed, or the wife of the Kings eldeſt ſonne and heire: or if a man do levie war againſt the Lord our King in his Realme, or be adherent to the Kings enemies in his Realm, giving to them aide and comfort in the Realm, or elſe-where, and thereof be probably attainted of open deed by people of their con­dition; And if a man counterfeit the Kings great or privie Seale, or his Money: and if a man bring f•lſe money into this Realme, counterfeit to the money of England ▪ and the money called Lusburgh, or other like to the ſaid money of England, &c.

11. Hen. 7. Cap. 1. None that ſhall attend upon the King, and doe him true ſervice, ſhall be attainted, or forfeit any thing.

THe King our Soveraign Lord calling to his remem­brance the duty of allegiance of his Subjects of this his Realm, & that they by reaſon of the ſame are bound to ſerve their Prince and Sover. Lord for the time being in his wars, for the defence of Him and the Land, againſt every rebellion power and might raiſed, reared againſt him, and with him to enter and abide in ſervice in battell, if caſe ſo require, and that for the ſame ſervice what fortune ever fall by chance in the ſame battell againſt the mind and will of the Prince (as in this Land ſometime paſſed hath been ſeene) that it is not reaſonable, but againſt all lawes, reaſon and good con­ſcience,7 that the ſaid Subjects going with their Soveraigne Lord in wars, attending upon him in his perſon, or being in o­ther places by his commandement within this Land or with­out, any thing ſhould loſe or forfeit, for doing their duty or ſervice of Allegiance. It be therefore ordained, enacted, and e­ſtabliſhed by the King our Soveraigne Lord, by the advice & aſſent of the Lords ſpirituall and temporall, and the Commons in this preſent Parliament aſſembled, and by authority of the ſame, that from henceforth no manner of perſon or perſons whatſoever he or they be, that attend upon the King and So­veraign Lord of this Land for the time being, in his perſon, & do him true and faithfull ſervice of allegiance in the ſame, or be in other places by his commandement in his wars, within this Land or without, that for the ſaid deed and true duty of allegiance he or they be in no wiſe conviet or attaint of high treaſon, nor of other offences for tha•cauſe, by act of Parlia­ment, or otherwiſe by any proceſſe of Law, whereby he or a­ny of them ſhall loſe or forfeit life, lands, tenements, rents, poſ­ſeſſions, hereditaments, goods, chattels, or any other things but to be for that deed and ſervice utterly diſcharged of any vexation, trouble, or loſſe. And if any act or acts, or other pro­ceſſe of the Law hereafter thereupon for the ſame, happen to be made contrary to this Ordinance, that then that act or acts, or other proceſſe of the Law, whatſoever they ſhall bee, ſtand and be utterly void. Provided alwayes, that no perſon or perſons ſhall take any benefit or advantage by this Act, which ſhall hereafter decline from his or their ſaid allegi­ance.

Cap. 24. In the Statute of 27. H. 8. I•is enacted, that no perſon or perſons of what eſtate or degree ſoever they be of, ſhall have any power or authority to pardon or remit any treaſon, murders, manſlaughters, or any kind of Fellonies, &c. but that the K. ſhal have the ſole & whole power & authority thereof united and knit to the Imperiall Crown, as of right it appertaineth, &c. And in the ſame it is enacted further, that none ſhall have power, of what eſtate, degree, or condition ſoever they be, to make Juſtices of Eyre, Juſtices of Aſſize, Juſtices of the Peace, &c. bu•all ſuch Officers and Miniſter8 ſhall be made by Letters Pattents under the Kings great Seale in the name and by the authority of the King and his Heire•and Succeſſors Kings of this Realme.

In the firſt yeare of Queen Mary, and the firſt Chapter, It is enacted by the Queen, with the conſent of the Lords and Gommons, That no deed, or offence by Act of Parliament, made treaſon, ſhall be taken, deemed, or adjudged to bee high treaſon, but only ſuch as be declared and expreſſed to be trea­ſon by the Act of Parliament, made 25. Ed. 3. cap. 2. before mentioned.