Severall poysonous and sedicious papers of Mr. David Jenkins ansvvered.: By H.P. barrester of Lincolnes Inne.

To the first.

I Was examined by a Committee appointed by the House of Commons: I say and said that the House of Commons have no power to examine me, for that it is no Court, every Court hath power to examine upon Oath, this power the House of Commons never claimed; The Court of Pie-Powders, Court-Baron, Hundred Court, County Court, and every other Court of Record, or not of Record, hath power to examine upon oath, and an examination without Oath, is a communication onely, exa∣mination in Law is upon oath.

There is no Court without a power of triall, the House of Commons hath no power to try any offence, nor ever practised it by Bill, Inditement, Information, Plaint or Originall, to de∣duce it to triall, nor to try it by Verdict, Demurrer or Exami∣nation of witnesses upon Oath, without which there can be no condemnation or judgement; and that which can attain to no reasonable end, the Law rejects as a thing inutile, and uselesse: Sapiens incipit à fine.

The Writ whereby they are called gives them power Ad fa∣ciendum & consentiendum, to what? to such things Quae ibidem de communi Consilio ordinari contigerint, (viz.) in the Parliament: This makes nothing at all for a Court for the House of Com∣mons; that consilium which that Writ intends, is cleared partly by the Writ for choosing Knights, &c. For the King by that Writ is said to resolve to consult and treat with the Prelates and Peers of the Kingdom, for and touching the great concernments of the Common-wealth (for the King never fits in the House of Commons;) and this also is made evident by the Writs to the Prelates, Peers, Judges, and to his Councell at Law; the words in their Writs are, To appear and attend the Parliament, Con∣silium impensure, the one doth consulere, the other facere & consen∣tire.

The House of Lords, where the King fits in person, assisted by his Lords, Judges, Serjeants, Atturney, Sollicitor, Masters of the Chancery, is a Court of Record to many purposes, set down in the books of the Law, and the Statutes of the Land; and that Courts is onely in the House of Lords, where the King sits.

A Court must either be by the Kings Patent, Statute Law, or by the Common Law, which is common and con••••ant usage; the House of Commons hath no Patent to be a Court, nor S••••∣tute Law to be a Court, nor common usage; they have no 〈◊〉〈◊〉 Book but since E. 6. time: was there ever Fine by the House of Commons e••treated into the Excheque••? For murther o•• Felony they can imprison no man, much ••esse for Treason; the House which cannot do the lesse cannot do the greater.

I•• is ordained, that no man shall be imprisoned, or put out of his Franchise by the King or his Councell, but upon Indict∣ment or presentment of his good and lawfull Neighbours, where the deed is done, or by originall Writ at the Common Law, and so is Lex terrae the Law of the Land, mentioned is Magna Charta. cap. 29 expounded; and the said Magna Charta and Charta 〈…〉〈…〉, are declared by the Statute of 25 E 1. 〈◊〉〈◊〉. to be the Common Law of the Land. All Judges and Com∣missioners are to proceed, Secundum legem & consuetudinem Regni Angliae, as appears by all proceedings in all Courts, and by all Commissions: and therefore the House of Commons by them∣selves proceeding not by Indictment, Presentment, 〈◊〉〈◊〉 Origi∣nall Writ, have no power to imprison men, or to put them out of their Franchi••e.

This no way trenches upon the Parliament, for it is in Law no Parliament withou•• King and both Houses; I have onely in my Paper de••ivered to Mr. Corbet, applyed my self to that Com∣mittee, that they had no power to examine me; but I never thought, said, or wrote, that the Parliament had no power to examine me: the Law and custome of this Land is, that a Par∣liament hath power over my life, liberty, lands and goods, and over every other Subject; but the House of Commons of it self hath no such power.

For the Lord Cooks relation, that the House of Commons have imposed 〈◊〉〈◊〉, and imprisoned men in Queen E••••z••••ths time, and since; Few facts of late time never 〈…〉〈…〉 power nor Court, à 〈…〉〈…〉 is no good 〈◊〉〈◊〉 for the words of the Statute of 6 H 8 c. 16 that a ••icence to dep••••t from the House or Commons for any Member thereof is to be entred of Record in the Book or the Clark of the Par∣liament,

appointed, or to be appointed for that House, doth not conclude that the House of Commons is a Court of Re∣cord.

For first, that Law of 6. H. 8. c. 26. handles no such question, as that, whether the House of Commons be a Court, it is a maxime in all Laws, Lex aliud tractans nil probat, the word (Re∣cord) there mentioned, is onely a memoriall of what was done and entered in a Book: A Plaint removed out of the County-Court to the Court of the Common-Pleas, hath these words in the Writ of remove, Recordari facias loquelam, &c. and yet the County-Court is no Court of Record, and so for ancient De∣mesne, in a Writ of false judgement, the words are Recordari fa∣cias loquelam, &c. and yet the Court of ancient Demesne is no Court of Record; and so of a Court Baron, the Law and cu∣stome of England must be preserved, or England will be destroy∣ed, and have neither Law nor custome.

Let any man shew me, that the Court of Lords, or the House of Commons in any age hath made any man a Delinquent (Rege dissentiente) the King contradicting it under his Great Seal. Sir Gi••es Mompesson, Michel, and others of late were con∣demned by the prosecution of the House of Commons in King James his time; did King James ever contradict it? And so of ancient times, where the House of Peers condemned Latimer in 50. E. 3. the Kings pardon freed him: which shews cleerly, that the Kings expresse or implyed assent must of necessity be had to make a Delinquent.

The Gentleman saith, That the Parliament fits, or ought to sit by something greater then the Kings Writ, &c.

No Parliament did ever sit without the Kings Writ, nor could ever Parliament begin without the Kings presence in person, or by a Guardian of England by Patent under the Kings Great Seal, the King being in remotis, or by Commission under the Great Seal to certain Lords representing the Kings person, and hath been thus in all Ages unto this Session of Parliament, wherein his Majestie hath been pressed, and hath passed two Acts of Parliament, one for a Trienniall Parliament, and another for a perpetuall, if the Houses please, to satisfie their desires; how these two Acts agree one with another, and with

Statute in E. the thirds time, where Parliaments are ordained to be holden every yeer, and what mischiefs to the people of this Land such length of Parliaments will produce by prote∣ctions and priviledges, to free them and their meniall servants from all debts during their lives, if they please to continue it so long; and how destructive to mens actions against them, by reason of the Statute of Limitations, which confines their acti∣ons to certain yeers, and many other inconveniencies or greater importance, is easie to understand?

How can any man affirm, that the two Houses do act now by the Kings Writ which relates to counsell and Treaty with the King, concerning the King, the defence of his Kingdom, and of the Church of England, there are the three points which it tends to, as appears by the Writ. They keep their King prisoner at Holdenby, and will not suffer him to consult and treat with them. They have made a Vow and Covenant to assist the Forces raised and continued by both Houses against the Forces raised by the King without their consent; and to the same effect have devised the Oath which they call the Ne∣gative Oath: Is this to defend the Kings Kingdom, or their king∣dome?

When by their solemne League and Covenant they extir∣pate Bishops, Deanes and Chapters root and branch, is this to defend the Church of England? (that Church must necessarily be meant, that was the Church of England when the said Writ bore test) they were not summoned to defend a Church that was not in being; to destroy and defend the Church are very contrary things; the Church is not de∣fended, when they take away and sell the Lands of the Church.

The Gentleman saith, The King cannot controll other Courts of Justice, or prevent them from sitting or acting, and therefore not the two Houses, &c. It is true, the King cannot controll or prevent his other Courts, for that they are his ordinarie Courts or common justice, to administer common 〈◊〉〈◊〉 un∣to all men, according to the fixed Laws. The Houses make no Court without the King, they are no body Co••porate without the King, nor Parliament without the King, they all

make one corporate body, one Court called the Parliament, wher∣of the King is the head, and the Court is in the Lords house, where the King is present: and as a man is no man without a head, so the Houses severed from the King, as now they are, have no power at all, and they themselves by levying War against the King, and imprisoning of him, have made the State for not dissolving, ad∣journing, or proroging this Parliament of no effect, by the said Acts of their owne; they sit to no purpose without his assent to their Bills, they will not suffer him to consult with them, and treat and reason with them, whereby we may discerne what Bills are fit to passe, and what not, which in all Ages the Kings of this Land have enjoyed as their undoubted Rights, and therefore they sit to no purpose by their owne disobedience and fault.

For the ordinary Courts at Westminster, the Iudges in all those Courts are Iudges by the Kings Patent or Writ, otherwise they are no Iudges: the Houses can make no Iudges, they are no Iudges at all who are made by them; the whole and sole power of mak∣ing Iudges, belongs to the King: the King cannot controle or pre∣vent his own Iudges from sitting or acting, but the Houses he may for they are not the Kings Iudges, but the Iudges of the two Hou∣ses. In his other Courts, the King commits his power to his Iudges by his patent, and they are sworne to doe common right to all men, and the King is sworne not to let them from so doing: the King cannot judge in those Courts, nor controule; but the King is both Iudge and Controller in the Court of Parliament: Quoad. Acts, for his assent or dissent doth give life or death to all Bils. Many Lawyers have much to answer to God, this Kingdom, and to posterity, for puzling the people of this Land with such Fancies, as the Gentl▪ who wrote the Answer to my Paper, and others have published in these Troubles, which hath bin none of the least causes of the raysing and continuing of them: And so I have done with the first part of his answer.

Notes

• 5 H 4 c. 3.
• 3 H 6. 46.
• 19 H 6. 43.
• 35 H. 6. 5.
• Sir Anthony Maynes case, Cook 5. pars, Reports, Lit. 2. lib. Sect. 194. 6 H. 4. 1.
• 4 pars, Instit. fol 4. & 9.
• 7 H 6. 28.
• 1 H 7. 20.
• 14 E. 3. ca 5.
• 1 Pa••s, Instit. pa. 21.
• Plowd Com. 319.
• 25 E 3 c 4.
• 3▪ Car Peti∣tion of Right.
• 4 pars, Instit. pag 1
• 3 Pars. Instit. p. 3.
• 12 H 7. 20. Prince case.
• 8 Pars▪ Cook. 1 Pars, 〈◊〉〈◊〉 p ••59.
• 1 H 8 3
• Dier▪ 38 H 8 60
• 1 P••••s, Instit p 19 ••.
• 4 〈◊〉〈◊〉 ••••stit ca. Parl.
• Fitzh Nat. Br 70
• Fi••••h. Nat, Br 13.
• 12 H 4. 23.
• 34 H. 6. 49.
• 4 Pars, Instit. Tit. Parl. p. 23.
• 4 Pars, Instit. p. 4. & 6.
• 4 E 3. c. 14.
• 36 E. 3. c. 10.
• 21 I••c. the Act of Limitation of Actions, cap. 26.
• 4 pars, Instit. pa. 14.
• Vow and Co∣venant, p. 11.
• 3 Pars, Cook. De••n and Chapter of Norwich.
• 4 Pars, In∣stit. p. 1.
• 27 H. 8. c. 24, 28. H. 8 11. Dier.
• 2 R, 3. 11.