Severall papers lately vvritten and published by Iudge Ienkins, prisoner in the Tower viz. 1. His vindication. 2. The armies indempnity [sic]: with a declaration, shewing, how every subject ought to be tryed for treasons, felonies, and all other capitall crimes. 3. Lex terræ. 4. A cordiall for the good people of London. 5. A discourse touching the incoveniences of a long continued Parliament. 6. An apologie for the army.

A DISCOURSE Touching the Inconveniencies of a Long continued Parliament.

1.

Aerpetuall Parliament is repugnant to the Act made this Parliament for a Trienniall Parlia∣ment; for how can every three years a Parliament begin, if this be perpetuall, which may be so if the two Houses please?

2.

An adjournment of the Parliament makes no Session, 4 Pars, Institut. fol. 27. Howbeit, before the Adjourn∣ment, the King gives His Royall assent to some Bills. Cooke, ibid.

3.

There is no Session till a prorogation or dissolution of the Parliament.

4.

This Parliament, as appeares by the Act for not dissol∣ving thereof, set downe in the Printed Statutes of this Parliament, fol. 138. cannot be prorogued but by Act of Parliament. There hath beene as yet no Act of Parlia∣ment present, and therefore all the Acts of this Parlia∣ment, are Acts of one Session.

5.

All the A•••••• of one Session relate to the first day of the Parliament, and all the Acts of such a Pa••liament are Acts of one day; so the Act for the Trienniall, and the Act for this Perpetuall, are two Acts of one day by the Law.

6.

4 Ed. 3. cap. and 36 Ed. 3. cap. 10. A Parliament is to bee holden once every yeere, and more often if need▪ shall bee▪ those Acts are confirmed by the Act for the Trienniall Parliament. How doth a perpetuall Parlia∣ment agree with a Parliament once every yeere, or with the intention of those Lawes? How doth a Parliament every three yeers agree with a Parliament for ever, which may be, if the two Houses please?

7.

The result is this; at one day in Law this Parliament two Acts have passed (for howbeit the one was in 16•• Carol. and the other in 17. Carol. yet both in Law are Acts of one day) the one saith there shall be a Trienniall Parliament after the end of the sitting of this Parlia∣ment: The other, this Parliament shall sit for ever, if they please. The one will have a Parliament with an end, the other, a Parliament without an end.

When an Act of Parliament is against common right or Reason, or repugnant, or impossible to bee perfor∣med, the Common Law shall controle it, and adjudge this Act to bee void; they are the words of the Law.

An Act of Parliament, that a man shall bee Judge in his owne cause, is a void Act.

Begin with Common Right. It is against Common Right, that indebted men should not pay their debts: That if any Member of the House of Comons doe any Subject wrong by diffeising him of his land, or dispossessing him of his goods, or blasting of his fame, or doing violence to

his person, that such persons during their lives should not bee questioned by a priviledge of Parliament, and that extended also to many others besides themselves. Com∣mon Right doth abhorre these enormities, which a per∣petuall Paliament doth beget, besides the utter destru∣ction of all mens actions, reall, personall, or mixt, who have to doe with Parliament men, by the Statute of Li∣mitation, which confines suits to certain yeares.

For Common Reason. Parliaments were ordained for remedies to redresse publike grievances; It is against Reason they should make publike and insufferable grie∣vances. The Law of the Land allowes no protection for any man imployed in the service of the Kingdome but for a yeare, to be free from suits, and in many suits none at all, howbeit hee be in such service; but a Parlia∣ment perpetuall may prove a protection, not for a yeare, but for ever, which is against all manner of Reason.

For Impossibility. The death of His Majesty (whose life God prolong) dissolves it necessarily; For the Writ of summons is, Carolus Rex in hoc individuo, and Carolus Rex is in this particular, Habiturus colloquium & tracta∣tum cum Prelatis & proceribus, &c. King Charles being to have Conference and Treaty with his Prelates and Peeres; Carolus Rex cannot have Colloquium & tracta∣tum, Conference and Treaty, when he is deceased; and therefore it is impossible for any Parliament to continue as long as they please, as for a Parliament to make a dead man alive.

For Repugnancie. That which is but for a time, can∣not be affirmed to have continuance for ever, it is repug∣nant.

The end of the Act of 17. Caroli Regis, which is to continue at pleasure, is in the said Act expressed to be to raise credit for money for these three purposes. First, for reliefe of his Majesties Army and people in the North.

Secondly, for preventing the iminent danger of the Kingdome. Thirdly, for supply of other His Majesties present and urgent occasions. These ends are ended, the reliefe of that Army, the iminent danger supposed was sixe yeares agoe, the supply of His Majestie hath beene a supply against him, take away the end, the meanes thereto are to no purpose, take away the cause, the effect ceaseth; and therefore the three ends of this Act being determined, it agreeth with Law and Reason, the Act should end, the Law rejects things unprofitable and uselesse.

A perpetuall Parliament (besides that it incites men to selfe-ends, destructive of the publique of which the whole Kingdome hath had sufficient experience) wilbe a constant charge to the Kingdome; for that every County and Borough, who send Members to the Par∣liament, are by the Law to pay wages to their Parlia∣ment men, which to many Counties will amount above some Subsidies Yearely: There are many poore Bo∣rough-Townes in each County of this Kingdome, who being to maintaine two Burgesses in Parliament, will be quickly begger'd, if the Parliament have no end; for all which reasons it is cleare, that such long continuance of Parliaments, will instead of a remedy (which is and ought to be the proper and true end of Parliaments) become an insufferable grievance and oppression to all the People of the Land.

The Writ of Summons this Parliament is the basis and foundation of the Parliament. If the Foundation be destroyed the Parliament falls. The Assembly of Parliament if for three purposes. Rex est habiturus collo∣quium et tractatum cum praelatis, magnatibus et proceribus super arduis negotijs, concernentibus, 1. Nos. 2 Defensionem regni nostri 3. Defensionem Ecclesiae Anglicanae. This Par∣liament hath overthrowne this Foundation in all 3 parts, 1. Nos. the King, they have chased him away, and im∣prisoned

him; they have voted no prelats, and a num∣ber of other Lords, about 40. in the City must not come to the House, and about 40, more are out of Towne, the colloquium et tractatus are made void therby. For the King cannot consult and treat there with men removed from thence. 2. Defensionem regni nostri, that is gone; they have made it their Kingdome, not His, for they have usurped all His Soveraigntie. 3. Defensio∣nem Ecclesiae Anglicanae, that is gone, that Ecclesia An∣glicana trust be understood necessarily that Church, that at the test of the Writ was Ecclesia Anglicana, they have destroyed that too. So now these men would be called a Parliament, having abated, quashed, and made nothing of the Writ whereby they were Summoned and Assembled. If the Writ be made void, all the pro∣cesse is void also: that House must needs fall, where the Foundation is overthrowne, Sublato fundamento opus ca∣dit, the Foundation being taken away, the worke falls, is both a maxime in Law and Reason.

For some yeares past, there is no crime from Treason to Trespasse, but they are guilty of: all Treason, Felo∣nies, Robberies, trespasses are contra pacem, coronam, et dignitatem Regis, against the Peace, Crowne and Digni∣tie of the King; as appeares by all Indictments in all Ages. Pax Regis the Kings Peace, Corona Regis, the Kings Crowne, Dignitas Regis, the Kings Dignitie, are all trod under foot, and made nothing; Pax Regis, the Peace of the King is become a Warre against the King, His Dignitie put into prison, and the Crowne put upon their owne heads.

All the Judges of England have resolved, that Noble∣men committing Treason have forfeited their Office and Dignitie, their Officei••s to councell the King in time of Peace, to defend him in time of Warre, and therefore those men against the duty and end of their Dignitie taking not onely Councell, but Armes also to destroy

Him, and being thereof attaint by due course of Law by a racite condition annexed to the estate of their Dignitie, have forfeited the same; they are the words of the Law, and therefore they have made themselves inca∣pable to be Members of the upper House.

The Oppressions of the People.

Briberies, Extortions, Monopolies, ought to be in∣quired after by the House of Commons, and complained of to the King and Lords, what have they done?

The House of Commons cannot by the Law commit any man to prison, who is not of the said House, for Treason, Murder, or Felony, or any thing but for the disturbance of the publique Peace, by the priviledge of the whole body.

They have no power by the Writ, which the King issueth to elect and returne Members of that House, so to doe. For the Writ for them is onely ad faciendum et consentiendum to those things, whereof His Majestie shall consult and treat with his Prelates and Nobles, et de communi consilio Regni shall be there ordained, as ap∣peares by the Writ. Here is no separate power given over the Kings people to them, but onely ad faciendum et consentiendum, and in all times this hath beene expoun∣ded and restrained to that which concerned their owne Members in Relation to the publique Service, as he is a Member of the corporate body of the Parliament, wher∣of the King is the Head.

But that the House of Commons have committed any man for Treason, Murder or Felony, or for any offence that had no relation to a Member of the House of Com∣mons, as it is against Law and Reason, so no instance can be given till this Parliament.

All Questions and trials where witnesse are examined, the examination is upon oath by the Law, by all our

Bookes, Statutes, every dayes practice. Examination without an Oath, is but a loose discourse; therefore the House of Commons not claiming power to give an Oath, have no power to examine any man.

No man shall bee imprisoned by the King or His Councell, unlesse it be by Inditement, presentment of his good and lawfull Neighbours where such deeds bee done, in due manner, or by processe made by Writ ori∣ginall at the Common Law: This Statute rehearses Magna Charta, pag. 29. and expounds Lex terrae, the Law of the Land there mentioned: This Law binds all men, and the House of Commons (for they say they are of the Kings Councell) in all points, but onely against the disturbers of the service of the Parliament; and therefore the imprisonment of severall persons who are not their Members, and for no disturbance to their Mem∣bers, is utterly against the Law of the Land, and the fran∣chise of the Free-men of this Realme.

Cui non licet quod minus, non ••eet quod majus; he who may not doe what is lesse, may not doe what is greater; they cannot commit a man for murder or Felony, much lesse for Treason.

No Court can fine and imprison, but a Court of Re∣cord, the House of Commons is no Court of Record, the House of the Lords where the King is in his Person, his Nobles and his Judges, and Councell at Law, the Ma∣sters of the Chancery assisting, is a Court of Record, and that is the Court of Parliament, where the colloquium & tractatus is. The House of Commons may present grievances, grant or not grant aydes, consent or not consent to new lawes, but for fining and imprisoning any but as aforesaid, is but of a late date, and no ancient u∣sage: They have no Journall Booke, but sithence Edw. 6. time. 6 Hen. 8. cap. 15. doth not prove the House of Commons to be a Court of Record, it mentions onely to be entered on Record in the Booke of the Clerke of the Parliament, if any Member depart into the Country.

There is no Journall there but sithence Ed. 6. time, or it is a remembrance or memoriall, as 12 H. 4.23.

The whole Parliament is one corporate body, con∣sisting of the Head and three Estates: The Court is on∣ly there where the Consilium & tractatus is, where the consult and treaty is with the King, which is in the House of Lords onely.

The House of Commons claime not to examine upon oath any man; no Court can bee without a power to give an oath, Courts Baron, Court of Pipowders, Coun∣ty-Court, may and doe give oath: No Court can bee without a power to try, no tryall can be without Oath; and therefore the House of Commons not claiming po∣wer to give an Oath, can bring no matter to tryall, and consequently can be no Court.

The behaviour of the Commons at a Conference with the Lords, the Commons are alwayes uncovered, and standing when the Lords sit with their hats on, which shewes they are not Colleagues in judgement, for fel∣low Judges owe no such Reverence to their Compa∣nions.

When was ever Fine imposed by the House of Com∣mons estreated in the Exchequer? The ejecting of a Member, who hath sitten, is against the Law; for they cannot remove a man out of the House unduly returned, much lesse a man returned duely.

By these Lawes it appeares, that if any undue returne be made, the person returned is to continue a Member, the Sheriffes punishment is 200. pound, one to the King, another to the party that is duly elected, imprisonment for a yeare without Baile or Mainprise; and that person who is unduly returned, shall serve at his owne charge, and have no benefit at the end of the Parliament by the Writ De solutione foendorum Militum, Civium & Burgen∣sium Parliament. and the tryall of the falsity of the re∣turne, is to be before the Justices of Assises in the proper

County, or by action of debt in any Court of Record. This condemnes the Committee for undue elections, which hath been practised but of late times; for besides these Lawes, it is against a maxime of the Common law; an averment is not receivable against the returne of the Sheriffe, for his returne is upon Oath, which Oath is to be credited in that suit wherein the returne is made.

The said Statutes condemne and make those members no members, which were not resiant in the County or Boroughs, for which they were elected, at the time 〈◊〉〈◊〉 the rest of the Writ of the Summons of the Parliament, and any abusive practice of late times to the contrary is against the Law, and ought not to be allowed.

Assault upon Parliament Men.

If a Parliament man or his Meniall Servant be assaul∣ted, beaten, or wounded, in the Parliament time, procla∣mation shall bee made where the deed is done, that the offender shall render himselfe to the Kings Bench, with∣in a quarter of a yeare after proclamation made, and the offence there to be tryed, for default of appearance the offender is declared, attainted of the misdeed, and it is accorded that thereafter it bee done likewise in the like Case.

Serving of processe upon a Lord of the Parliament pu∣nished in the Lords House.

Serving of processe upon Thornsby inquired of in the Chancery, and there the offenders were convicted.

The premisses prove, that breaches of priviledge of Parliament may bee punished elsewhere then in Par∣liament.

Upon all this Discourse, it is easie to discerne what fruits may be expected from this Parliament, continuing as long as the two Houses please; and that there is no safety for this Common-wealth, but by the Observati∣ons of their ancient Franchises, Customes and Lawes.

CONCLUSION.

I Say againe, that without an Act of Oblivion, a gracious generall Pardon from His Majesty, the Ar∣reares of the Souldiers paid, a favo∣rable regard had to tender Conscien∣ces, there will bee neither Truth nor Peace in this Land, nor any man se∣cure of any thing he hath.

The End.

Notes

• Plow •• com. 79 35 H. 8. Bro. relation 35. Bro. Parl. 86. Dier. 1 Mariae 45.
• 8 Pars, Doct. Bonhams case fol. 118. 8 Ed. 3.30. 33 E. 3. cessa∣vit, 32. 27. H. G. An∣nuity 11. 14 Eliz. Dier, 313.
• 21 Jac.
• 39 H. 6.39.
• 2 H. 5. Cooke Title Parliam 3. pars.
• Sir Anthony Mayns case. 5. pars, 1. H. 4.6. Littl. cap. Villen.
• Nevills ease 7. part, 34. 2. Jacobi.
• 4 Pars. insti∣tut. 23.24.25.
• 19 H. 6.43. 22. E. 4.22. 5 H. 4. cap. 8. 3 H. 6.46.
• 25 E. 3. c. 1. Petition of Right. 3 Car.
• 8 Pars, Cook 120. 27 H. 6.8.
• 14 H. 8.3. 36 H. 8. Dier 60. 4 Pars Instit. cap. 1.
• 11 H. 4. c••. ••.
• 〈◊〉〈◊〉 H. 4. cap. 1. 1 H. 5. cap. 1. 8 H. 6. cap. 7. 23 H. 6. cap. 15
• 3 Ed. ••. 20. 5 Ed. ••. 41.
• 5 H. 4. cap 6. 11 H. 6, cap 11.
• Bogo de Clare 18 E. 3. 4 pa••s, Instit. fol. 24. Iohn Thorns∣byes case, Clerk of the Parliam. ibid. 10. E. ••.