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. 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-Charta c.29. Mag. Char. chap. 29.2. part. inst. fol. 28.29.4 [...].48.49.50. composed by Sir Ed. Cooke and published by the Order of the House of Commons in May, 1641. 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, Rhot. par. [...]. roule 4. Ed.3. Num.2. part. inw. page 50. with this a­grees Sir John Lees case, Ro [...] ­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 tayed and acquitted or condemned in capitall causes by Iuters of their equalls.

An Ordinance bindeth not in law at all,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. chap2.11. R.2, ch.3. [...]. 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, 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, Petition of Right 3. C [...]r, reget. if any man deserve death he ought to suffer the same according to the lawes of the Land establi­shed, and not otherwise, but an Ordinance 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 [...] 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 Nevels case 2. part Cooke 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, 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, [...] [...]0. [...]-14. Ed 3. c. [...] with them, the King in person sits, and by them there erroneous judgments (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 the 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, See I, 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.

God preserve his Majestie and the lawes wherein their Lordships and the whole Kingdome are concerned
David Ienkins Prisoner in the Tower of London.
17 Ma. 1647.

⟨Jenkins, David, 1586?-1667, one of the judges for South Wales, distinguished for his loyalty to, and suffer­ings for, the cause of Charles I., pub. in 1618, 12mo, his Works, consisting of his vindication, occasional tracts, &c., which, with some legal treatises, &c., were written in prison. He is best known by his Eight Centuries of Re­ports Ex. Ch. and in Error, 4 Hen. III.-21 Jac. I, (1228-1623;) 3d ed., Lon., 1771-77; his treatise Lex Terrae Angliae, 1647, 4vo; and his Pacis Consultum, 1657, 8vo. See Athen. Oxon.; Bridgman's Leg. Bibl.; Marvin's Leg. Bibl., and authorities there cited; Wallace's Reporters; Disraeli's Comment on the Life and Reign of Charles I.⟩

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