A Declaration of Mr. David Ienkins now Priſoner in the Tower of London, one of his Maieſties Iudges in Wales, for Trials, Murthers, Felonies and all other capitall crimes that they ough only to be by Juries and not otherwiſe unleſſe it be by Act of Parliament.
THe common Law of this Land is, that every free man is ſubject to a tryall by a bill of Attainder in Parliament wherein his Majeſtie and both houſes muſt neceſſarily concur, for that tryall and attainder is an Act of Parliament to which all men are ſubject to.
No man ſhall otherwiſe be deſtroyed, &c. but by the lawfull judgement of his Peers, or by the common law of the Land; Peers to Noble men are Noble men, peers to the Commons, are Knights, Gentlemen, &c.a Mag. Char. chap. 29. 2. part. inſt. fol. 28. 29. 46. 48. 49. 50. compoſed by Sir Ed. Cooke and publiſhed by the Order of the Houſe of Commons in May, 1641. Judgement of peers refers to peers, thoſe words of the Law the land, refers to the Commons, the Law of the land is for the tryall of the life of a free Commoner, by Indictment, preſentment of good and lawfull men where the deed is done, or by writ originall of the common law, all this is declared in Magna Churta c. 29. and by the 25. Ed. 3. c. 4. 28. Ed. 3. c. 3. 37. Ed. 3. c. 8. 42. Ed. 3. c. 3. If the Lords will try any man by an Ordinance, they deſtroy that excellent Act of Magna Charta, and all thoſe other good lawes.
Sir Simon de Bereford a free Commoner of England was condemned by the Lords to death by an Ordinance, which after the Lords better conſidering the matter, that they might be acquitted of that ſentence, became ſuters to the King, that what they had ſo done in future time might not be drawn into preſiddent; becauſe that which they had ſo don was againſt the Law, b) Rhot. par. 2. roule 4. Ed. 3. Num. 2. part. inw. page 50. with this agrees Sir John Lees caſe, Ror. Par. 41. E 3. Num. 22. 23. 2. inſt. fol. 50. with this agrees the pructice and uſage of all times in this land, all the free Commoners of this Kingdome, have alwaies been t•yed and acquitted or condemned in capitall cauſes by luters of their equalls.
An Ordinance bindeth not in law at all, c) See 4. part. inſt. fol 23 48. 292, 2. part inſt. f. 47, 48. and but pro tempore, as the two houſes now affirme, a mans-life cannot be tried by that which is not binding, and to continue for all times, for a life loſt cannot be reſtored.
By an act of Parliament of the 1. and 2. of Philip and Mary chapter 10. It is inacted that all tryalls for Treaſon hereafter to be had, ſhall be according to the courſe of the Com-mon law.
If the crime charged upon any be Treaſon againſt the two houſes (againſt the Parliament it cannot be, for there is no Parliament without the King) that is no Treaſon in law, as appeas by 25. Ed. 3. chap 2. 11. R. 2, ch. 3. 1. Hen. 4 ch. 10, 1. and 2. Philip and Mary. chap. 10.
An act of Parliament to make any a Judge where he is party, is a yoid act, d) Dr. Bonams caſe 8. part of Cook. reports. for none can be a Judge and party in the ſame cauſe, and therefore the houſe of peers being a party touching the crime clarged upon any man, whom they would try by an Ordinance for Treaſon againſt both houſes, cannot be a Judge.
By the petition of right, e) Petition of Right 3. Car, reges. if any man deſeive death he ought to ſuffer the ſame according to the lawes of the Land eſtabliſhed, and not otherwiſe, but an Ordina•ce of the Lords is no eſtabliſhed law.
The Proteſtation, the Vow and Covenant, the ſolemn League and Covenant, the Declarations of both Houſes, had made and publiſhed ſince this unnatuarll Warre, are amongſt other things ſworne and ſet downe to be for the maintenance of the Lawes, the people of this Land ought to injoy the benifit of their Birth-right the law of the land, and making good of the ſaid proteſtation, Vow and Covenant, League and Covenant and Declarations, otherwiſe Truth muſt be ſaid and will be ſaid, that there is brought in a new arbitrary and Tyrannicall government.
If the Lords have taken one mans life by an ordinance, they are not bound to take any more, & the caſe differs in caſe any appeale be made from a tryall by ordinance to a tryall at common law, which was not done by that man whoſe life was taken away by an ordinance.
The Lords ought to remember, that his Majeſty and his progenitors have made them a houſe of Peers, they are truſted to counſell him in peace f) Nevels caſe 8. part Cooks reports. and defend him in warre, his Majeſty in Parliament is to conſult and treat with his Peers and with his Counſell at law, Iudges, his Sergeants, Atturney, and Solicetor, and maſters of the chancery, the Lords and that counſell by the reſpective writs of ſummons to Parliament are to give Counſell, g) 4 part. inſti. fol. 4. 9. the Houſe of Commons by their writ to performe and conſent.
In the Houſe of Lords, the Court of Parliament onely is, for they onely examine upon oath, h) 1. Hen 7. f. 20. with them, the King in perſon ſits, and by them there erroneous judgments *) 14. Ed. 3. c. 5. (upon a petition to his Majeſtie for obtaining of a writ of error) by the advice of the Iudges are reverſed, or affirmed, &c. the Lords are to remember that their eminency and grandure, is preſerved by the lawes, if they leave all to will and diſhonour their King, and make nothing of the Lawes, they will make nothing of themſelves in the end.
And therefore, it is well worth your obſervation what was ſaid by Mr. Iohn Pym a member of the houſe of Commons in ſpeech againſt rhe Earle of Strafford in the beginning of the Parliament, which ſpeech is publiſhed by the expreſſe order of the houſe of Commons, the words are theſe. The law is that which puts a difference betwixt good and evill, betwixt juſt and unjuſt if you take away the law, all things will fal into a confuſion every man will become a law unto himſelf, which in the depraved condition of humane nature muſt needs produce many great enormities: Luſt will become a law, and Envie will become a law, coveteouſneſſe & ambition will become lawes, and what dictates what deriſions ſuch lawes will produce, may eaſily be diſcerned,i) See 1, part. book deel. pag 140. 163.&c. They that love this Common wealth as things now ſtand, will uſe all meanes to procure an act of oblivion, a generall pardon from his Majeſtie the Souldiers their Arrears, and tender conſcience a juſt and reaſonable ſatisfaction, elſe we all muſt periſh firſt or laſt.