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<DATE>2007-12-04</DATE>
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<NAME>Elspeth Healey</NAME>
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<HEAD>A Declaration of Mr. <HI>David Ienkins</HI> now Pri&s;oner in the Tower of <HI>London,</HI> one of his Maie&s;ties Iudges in Wales, for Trials, Murthers, Felonies and all other capitall crimes that they ough only to be by Juries and not otherwi&s;e unle&s;&s;e it be by Act of Parliament.</HEAD>
<P>THe common Law of this Land is, that every free man is &s;ubject to a tryall by a bill of Attainder in Parliament wherein his Maje&s;tie and both hou&s;es mu&s;t nece&s;&s;arily concur, for that tryall and attainder is an Act of Par|liament to which all men are &s;ubject to.</P>
<P>No man &s;hall otherwi&s;e be de&s;troyed, &amp;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, &amp;c.<NOTE PLACE="marg"><HI>a</HI> Mag. Char. chap. 29. 2. part. in&s;t. fol. 28. 29. 46. 48. 49. 50. compo&s;ed by Sir Ed. Cooke and publi&s;hed by the Order of the Hou&s;e of Commons in May, 1641.</NOTE> Judgement of peers refers to peers, <HI>tho&s;e words of the Law the land,</HI> refers to the Commons, the Law of the land is for the tryall of the life of a free Commoner, by Indictment, pre&s;entment of good and lawfull men where the deed is done, or by writ originall of the common law, all this is declared in <HI>Magna Churta</HI> c. 29. and by the 25. <HI>Ed.</HI> 3. c. 4. 28. <HI>Ed.</HI> 3. c. 3. 37. <HI>Ed.</HI> 3. c. 8. 42. <HI>Ed.</HI> 3. c. 3. If the Lords will try any man by an Ordinance, they de&s;troy that excellent Act of <HI>Magna Charta,</HI> and all tho&s;e other good lawes.</P>
<P>Sir <HI>Simon de Bereford</HI> a free Commoner of England was condemned by the Lords to death by an Ordinance, which after the Lords better con&s;idering the matter, that they might be acquitted of that &s;entence, became &s;uters to the King, that what they had &s;o done in future time might not be drawn into pre&s;iddent; becau&s;e that which they had &s;o don was again&s;t the Law, <NOTE N="b" PLACE="marg">Rhot. par. 2. roule 4. Ed. 3. Num. 2. part. inw. page 50. with this a|grees Sir John Lees ca&s;e, Ror. Par. 41. E 3. Num. 22. 23. 2. in&s;t. fol. 50.</NOTE> with this agrees the pructice and u&s;age of all times in this land, all the free Commoners of this Kingdome, have alwaies been t<GAP DESC="illegible" EXTENT="1 letter">yed and acquitted or condemned in capitall cau&s;es by luters of their equalls.</P>
<P>An Ordinance bindeth not in law at all, <NOTE N="c" PLACE="marg">See 4. part. in&s;t. fol 23 48. 292, 2. part in&s;t. f. 47, 48.</NOTE> and but <HI>pro tempore,</HI> as the two hou&s;es now affirme, a mans-life cannot be tried by that which is not binding, and to continue for all times, for a life lo&s;t cannot be re&s;tored.</P>
<P>By an act of Parliament of the 1. and 2. of <HI>Philip and Mary</HI> chapter 10. It is inacted that all tryalls for Trea&s;on hereafter to be had, &s;hall be according to the cour&s;e of the Com-mon law.</P>
<P>If the crime charged upon any be Trea&s;on again&s;t the two hou&s;es (again&s;t the Parliament it cannot be, for there is no Par|liament without the King) that is no Trea&s;on in law, as appeas by 25. <HI>Ed. 3. chap 2. 11. R. 2, ch. 3. 1. Hen. 4 ch. 10, 1. and 2. Philip and Mary. chap.</HI> 10.</P>
<P>An act of Parliament to make any a Judge where he is party, is a yoid act, <NOTE N="d" PLACE="marg">Dr. Bonams ca&s;e 8. part of Cook. reports.</NOTE> for none can be a Judge and party in the &s;ame cau&s;e, and therefore the hou&s;e of peers being a party touching the crime clarged upon any man, whom they would try by an Ordinance for Trea&s;on again&s;t both hou&s;es, cannot be a Judge.</P>
<P>By the petition of right, <NOTE N="e" PLACE="marg">Petition of Right 3. Car, reges.</NOTE> if any man de&s;eive death he ought to &s;uffer the &s;ame according to the lawes of the Land e&s;tabli|&s;hed, and not otherwi&s;e, but an Ordina<GAP DESC="illegible" EXTENT="1 letter">ce of the Lords is no e&s;tabli&s;hed law.</P>
<P>The Prote&s;tation, the Vow and Covenant, the &s;olemn League and Covenant, the Declarations of both Hou&s;es, had made and publi&s;hed &s;ince this unnatuarll Warre, are among&s;t other things &s;worne and &s;et 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 &s;aid prote&s;tation, Vow and Covenant, League and Covenant and Declarations, otherwi&s;e Truth mu&s;t be &s;aid and will be &s;aid, that there is brought in a new arbitrary and Tyrannicall government.</P>
<P>If the Lords have taken one mans life by an ordinance, they are not bound to take any more, &amp; the ca&s;e differs in ca&s;e any appeale be made from a tryall by ordinance to a tryall at common law, which was not done by that man who&s;e life was taken away by an ordinance.</P>
<P>The Lords ought to remember, that his Maje&s;ty and his progenitors have made them a hou&s;e of Peers, they are tru&s;ted to coun&s;ell him in peace <NOTE N="f" PLACE="marg">Nevels ca&s;e 8. part Cooks reports.</NOTE> and defend him in warre, his Maje&s;ty in Parliament is to con&s;ult and treat with his Peers and with his Coun&s;ell at law, Iudges, his Sergeants, Atturney, and Solicetor, and ma&s;ters of the chancery, the Lords and that coun&s;ell by the re&s;pective writs of &s;ummons to Parliament are to give Coun&s;ell, <NOTE N="g" PLACE="marg">4 part. in&s;ti. fol. 4. 9.</NOTE> the Hou&s;e of Commons by their writ to performe and con&s;ent.</P>
<P>In the Hou&s;e of Lords, the Court of Parliament onely is, for they onely examine upon oath, <NOTE N="h" PLACE="marg">1. Hen 7. f. 20.</NOTE> with them, the King in per&s;on &s;its, and by them there erroneous judgments <NOTE N="*" PLACE="marg">14. Ed. 3. c. 5.</NOTE> (upon a petition to his Maje&s;tie for obtaining of a writ of error) by the advice of the Iudges are rever&s;ed, or affirmed, &amp;c. the Lords are to remember that their eminency and grandure, is pre&s;er|ved by the lawes, if they leave all to will and di&s;honour their King, and make nothing of the Lawes, they will make nothing of them&s;elves in the end.</P>
<P>And therefore, it is well worth your ob&s;ervation what was &s;aid by Mr. <HI>Iohn Pym</HI> a member of the hou&s;e of Commons in &s;peech again&s;t rhe Earle of <HI>Strafford</HI> in the beginning of the Parliament, which &s;peech is publi&s;hed by the expre&s;&s;e order of the hou&s;e of Commons, the words are the&s;e. <HI>The law is that which puts a difference betwixt good and evill, betwixt ju&s;t and unju&s;t if you take away the law, all things will fal into a confu&s;ion every man will become a law unto him&s;elf, which in the depraved condition of humane nature mu&s;t needs produce many great enormities: Lu&s;t will become a law, and Envie will become a law, coveteou&s;ne&s;&s;e &amp; ambition will become lawes, and what dictates what deri&s;ions &s;uch lawes will produce, may ea&s;ily be di&s;cerned,</HI> <NOTE N="i" PLACE="marg">See 1, part. book deel. pag 140. 163.</NOTE> <HI>&amp;c.</HI> They that love this Common wealth as things now &s;tand, will u&s;e all meanes to procure an act of oblivion, a generall pardon from his Ma|je&s;tie the Souldiers their Arrears, and tender con&s;cience a ju&s;t and rea&s;onable &s;atisfaction, el&s;e we all mu&s;t peri&s;h fir&s;t or la&s;t.</P>
<CLOSER>God pre&s;erve his Maje&s;tie and the lawes wherein their Lord&s;hips and the whole Kingdome are concerned.
<DATE>17 Ma. 1647.</DATE>
<SIGNED>David Ienkins Pri&s;oner in the Tower of London.</SIGNED></CLOSER>
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