and if any such Votes had been We doubt not but We should have found them inserted in this Declaration And a particular complaint of so great a grievance as Our Commission is made to be would have been expressed in the Preamble of the Petition with the Quotations of Statutes to the contrary as was done concerning other grievances But in truth it is well known That about that time upon occasion of Our wars there were divers other charges imposed by Our Lievtenants and others of a far differing nature most of which were by direction from Us or Our Privie Councell according to the exigency of the time and some former practice And We do beleeve that there was at that time neither complaint or occasion of complaint against the imposing of Arms for home defence of the Kingdom Howsoever We are sure that no such complaint was particularly represented unto Us or Our Answer intended thereunto And now to cleer this sence of the Petition 〈◊〉 of the judgement of both Our Houses this 〈◊〉 Parliament We demand this Question If so be the imposing Arms for defence be a charge upon the Subject within the meaning of this Petition how the two Houses will justifie their Ordinance which We are sure they will not call an Act of Parliament for without an Act of Parliament no charge thereby provided against can be imposed upon the Subject the words being plain That no man shall be compelled to make or yeeld any Gift Loan Benevolence Tax or other such like charge without common consent by Act of Parliament And now since this Declaration hath given Us such occasion to examine Our Commission upon the Petition of Right We shall conclude out of that Petition That that Parliament did conceive the powers of this Commission warrantable in every point For it is plainly to be observed that the Commons did then take into consideration the generall grievances of the Kingdom more particularly concerning Military affaires and therein the actions of Lord Lievtenants and Deputy-Lievtenants with their Commissions and powers and their exceeding of their power as expressely the billeting of Souldiers and the payment of Billet-money Muster-masters fees and others of that nature were then in dispute And although the two Houses could not but take notice of the imposing of Arms upon the Subject by Our Commission of Lievtenancy their powers to Levy call together Arm Array Train and Muster Our Subjects inhabiting in Our severall Counties and to conduct and lead them against all Our Enemies and all Rebels and Traytors from time to time as need should require in which particulars they contained the powers of Our Commission of Array Yet the Complaint was not made against them for what they did by vertue of their Commission no more then against the Justices of Peace though complained of together with the Lievtenants but for matters wherein they did exceed their Commission upon the Command or direction from Us or Our Councell the Petition throughout distinguishing betwixt such Commands or directions and Our Commissions So that We conclude here was not only an admission but an approbation of those powers by that Parliament We come now to the recitall in the Preamble of the late Statute made this Parliament The words are these For as much as great Commotions and Rebellions have been lately raised and stirred up in His Majesties Kingdom of Ireland by the wicked plots and conspiracies of divers of His Majesties Subjects there being traiterously affected to the great endangering not only of the said Kingdom but also of this Kingdom of England unlesse a speedy course be taken for the proventing hereof And for the raising and pressing of men for those Services And whereas by the Laws of this Realm none of His Majesties Subjects ought to be impressed or compelled to go out of His County to serve as a Souldier in the Wars except in case of necessity of the sudden coming in of strange Enemies into the Kingdom or except they be otherwise bound by the Tenure of their Lands or possessions c. upon which Preamble there is in that Statute some provision made for a time for raising and impressing men for those Services And upon this Preamble the conclusion is made in these words That this Commission is directly contrary to this Declaration is so evident that it requireth no application To this Objection We say We might make Our Answer as short as the inference is by affirming That it is evident that this Commission is not contrary to this recitall And surely We think that what We have already opened being applyed to this Objection would warrant that Answer But that We may leave nothing undone that may tend towards the full satisfaction of Our good people We shall also give this a particular answer First We say That if this recitall had been an Act yet there were nothing in Our Commission contrary to the letter of it for that by this Commision no man is compellable by any speciall words to go out of his County And the generall words giving power to the Commissioners for leading them to the Sea-coast or elsewhere as We have often repeated are with these limitations They are to lead them but when there is imminent Danger of enemies for defence of the Kingdom and then only they are to be led to such places as shall be necessary for the expulsion vanquishing and destruction of the said enemies And this is a case of necessity both within the words of this recitall and according to the sense of the same words in the Statute of 1. E. 3. and 4. H. 4. therein meant as We have before shewed And thus we might leave this Objection but that it implies a matter of a greater consequence then plainly appears That recitalls of the Law in Preambles of Statutes are binding For in this Objection this recitall is called a Declaration of the Law and Our Commission sard to be contrary to that Statute and it further implies That even in the greatest and most horrid Rebellion the Subject cannot be compelled out of the County for the suppression thereof But to this We answor That the difference is apparent between an Act of Parliament declarative and a recitall in a Preamble For such an Act in any matter though mistaken being assented unto by Us and Our two Houses is equally binding as having equall authority with an Act introductive of a new Law But the recitall in a Preamble is no part of the Act the Royall assent being only to that which is expressely or tacitely prayed to be enacted Nor can it any wayes so much as imply Our opinion For otherwise Kings must be inforced oftentimes to deny a good Law for an ill Preamble The consequence whereof is great in such an Act as requires expedition where a Bill once denyed is not regularly to be offered again in that Session of Parliament And if it were needfull divers mistakes of the Law in Preambles might be produced
of these Counties and others not to Array and Arm the inhabitants for that was done before but ad supervidendum to see that they were sufficiently arrayed according to their estates and to lead them as often as it should be needfull for resistance of the Rebels So that as Wee conceive the powers which were put together in 5. H. 4. are here severed but there is nothing in either Commission which exceeds or crosses the powers settled by the Commission of 5. H. 4. Though if it did it might prove the illegalitie of those but nothing against the legality of Our Commissions And if other particular Commissions had been produced and the differences particularly observed Wee should have beene the better able to have applyed Our answer thereunto And in the meane time Wee looke upon all such Commissions as regulated and warranted by this Act of 5. H. 4. and in pursuance thereof Notwithstanding if some Commissions can be produced which are not warranted by 5. H. 4. Yet that will be no sufficient Argument to prove That this of 5. H. 4 never meant to settle the Powers of Execution for there is no doubt but in so long a processe of time as since 5. H. 4 there may have beene some deviation contrary unto the Act the same having not at all times beene remembred as perhaps also may be in the Clauses concerning the Commissioners which yet We are sure Our two Houses will not allow as an Argument against the force of 5. H. 4. as allowing it to be an Act concerning them We might further adde the opinion of Sir Edward Cook whose great learning and affection to the Rights and Liberty of the Subject are not unknown who in his Treatise of the Jurisdiction of Courts being one of those Books since this Parliament desired or directed by the House of Commons to be published expresly declares That this Act touching a Commission for arraying and mustering of men is at this day of force But if any man be yet unsatisfied with so cleare Reasons on Our part and in Our answers We shall conclude upon him with the authority of the whole Parliament of 7. H. 4. Rot. Parl. n. 36. within two yeares after this Our Commission was settled when probably many of the same persons were members of both the Parliaments Whereby it appeares that this Act of 5 H. 4. is so binding as unto all the Powers of execution over the persons to be commanded that the Clergy who in former times had used to be arrayed amongst themselves by Writ or Commission to the Bishop or Arch-bishop were bound as within the body of that Commission so settled by Parliament And they thereupon in that very Parliament of 7. H. 4. are excepted out of this very Commission of 5. H. 4. which is therein mentioned and it was then enacted That from thenceforth the Clergy be not any wayes charged amongst the Laity for the making of any such Array nor for any contribution amongst the Laity for the same Having thus clearly settled this Record of 5. H. 4. as a full Act of Parliaments well concerning the powers of execution over the Persons to be commanded as the taking away of the penall Clauses over the Commissioners There is no further necessity as to the matter in question to consider whether or no that this Commission in all or any part thereof be contrary to any of the former Acts of 13. E. 1. 1. E. 3. cap. 5. 25. E. 3. cap. 8. 4. H. 4. cap. 13. so much insisted upon in the Declaration For that in such case the Act of 5. H. 4. being the latter had beene a Repeale of them for so much Neverthelesse for the further satisfaction of Our people as being desirous to omit nothing which may be done on Our part for the clearing of the justice of our actions Wee shall also examine those Statutes so farre as they are made use of in this Declaration And therein We professe the difficulty hath been more to finde out then to answer the inference made upon these Statutes For the Declaration reciteth the Statute of 13. E. 1. to bee a particular Assize or Assessement of Arms both in respect of the Kinde of Armes to be found and the proportion of the estate of every man after which they are to be found downwards from 15 pounds in Lands and 40 Marks in Goods And reciteth the Statute of 1. E. 3. That no man from thenceforth shall be charged to arme himselfe otherwise then he was wont in the time of the Kings Progenitors and that no man be compelled to goe out of his Shire but where necessity requireth and sudden comming of strange enemies into the Realme Whereupon it is taken for granted That the Statute of 13. E. 1. was a provision of Armes for defence extraordinary and that this Statute of 1. E. 3. was meant with reference thereunto And also reciteth the Statute of the 25 yeare of E. 3. as to be to the same effect with the former against the constraining men to finde men of Armes Hoblers or Archers without consent and grant made in Parliament And lastly reciteth the Statute of 4. H. 4. which confirmes those two Statutes of 1. E. 3. and 25. E. 3. And immediately thereupon makes this conclusion which followes That by these Acts not distinctly applying the severall matters to the severall Statutes it clearly appeares That the King could not by the Law give power to impose Armes upon the Subject which the Declaration calleth sometimes finding of Armes sometimes finding men at Armes all of different sences or to compell them to be drawne out of their Counties Which afterwards in stating the Case is expressed thus That the Subject was not compellable to finde any other Arms then was declared by those Statutes or to go out of their County but in case of Actuall invasion by Forraigne Enemies Against which this Commission is said to be But for Our clearer passage in this businesse We shall single out the severall Statutes with the Objections as Wee conceive intended upon each of them For the better understanding whereof We shall distinguish of the principall Termes in this question used in the Commission and severall Acts of Parliament First then as for the words of Arming a mans selfe used in the Commission as also in the Act of 1. E. 3. they are litterally to be taken for the providing of Armes for a mans owne person wherewith hee is to serve as a Souldier either Horse-man or Foot-man of what kinde soever And the finding of Armes for others in the Commission is but the finding the bare Armes without providing the men and are so to be taken here in whatsoever sence they may be taken else-where as may clearly appeare upon the very reading And as for the words finding of men of Armes c. which are the words used in the Statute of 25. E. 3. they are usually and properly enough taken for the setting forth of Souldiers
and to that end the Subject must be armed and prepared before hand and conducted after as there shall be occasion And that this cannot be done without a Command or Government Wee desire much to know in vvhom out of Parliament for Parliaments are not alwayes nor can bee called at all times or meet on the suddaine this power can be but in Vs as the Supreame Governour as it is in all other States be the persons of the Governours one or more according to the forme of each State And can the Supreame Governour according to his duty and Our Selfe more particularly according to Our Oath otherwise afford Our people that protection which is due unto them in maintaining to them the Lawes in the matter of Property and Liberty against private injury or oppression As well as Our Selfe and them and whatsoever is deare unto any of Vs against Enemies or Rebels especially the just Rights and Prerogatives of Our Crowne wherewith God hath trusted Vs according to the fundamentall and well-established policy of Our State as well for the peoples good as Our owne honour both which must bee preserved And will any man say that by calling of Our Parliament which is but a meeting of Vs and Our Subjects and such they continue as well collectively in the two Houses as they were before singly and a meeting in its owne nature dissolvable at Our pleasure and though now enlarged by Vs in time yet not in power Wee are growne lesse or departed with any thing to them either by way of abdication or communication of Our Royall Power This upon the common principles of Reason and Government is so obvious to every man that Wee shall for the present proceed no further therein either by quotations of Acts of Parliament or other legall authorities some whereof Wee have recited in Our late Proclamations till Our two Houses shall give Vs some justifiable instance of some good time to the contrary Wee come next to the continuall practice by Vs alleadged being alone sufficient to declare an originall fundamentall Law of Our Kingdome or at least by a tacite consent to introduce a Law and to this purpose Wee shall shew that the power of granting Commissions for the defence of the Kingdome in the generall whereunto onely Wee applyed and doe apply the opinions of Sir Richard Hutton and Sir George Crook not meaning therein as neither in Our Proclamation as is clearely mistaken the present forme setled by 5. H. 4. which Wee Our selves declared was made upon alteration though for the substance thereof Wee might have said so much and made it good as it appeares by the Marginall Quotations is warranted by the presidents in former Ages And this practice the Penner of this Declaration doth indeed not deny for having before confessed the often issuing of Commissions of Array after 5. H. 4 in the times of H. 4. H. 5. and H. 6. and hee might have brought it to later times if hee had so pleased he doth afterwards confesse that divers Commissions of Array issued in divers Kings Reignes before 5. H. 4. But as to this point of practice before 5. H. 4. hee saith by way of answer That for the most part they were warranted by particular Acts of Parliament And yet amongst so many presidents of severall Commissions he gives instances onely of two yeares in 13. 14. E. 3. of Commissions of Array then issued warranted by Act of Parliament Which if true doth no more disprove the legality of other Commissions of Array constantly issued without a Parliament then it doth of Commissions of Oyer and Terminer which at the same time in 14. E. 3. together with the Commissions of Array were appointed to issue to the same persons or of any other Act which the King doth by the advice of his Parliament though he may do it without them rather it implyeth the legality and the former usage of such Commissions of Array in that it appoints such Commissions to issue but limits not at all the particular Clauses or Powers to be inserted therein as a thing known and usuall to be done But the truth is both the presidents do concerne the drawing of men out of the Kingdome to a forraign Warre and so are nothing to the purpose Wee have in hand And that of 13. E. 3. is not at all a Commission of Array but of another nature giving power to the Lord VVake and others to provide moneyes and to cause certaine persons there named who had particularly undertaken the service of the Scottish Warres Leur arraier appareiller d'aller vers Newcastle To array and prepare themselves to goe to Newcastle whither they were to be brought at the charge of the Counties and to be there at a time appointed Having thus set forth the continuall practice of issuing forth Commissions of Array in former ages whereunto Wee never found till now any exception as for home-defence and the absolute necessity thereof Wee doubt not but every indifferent Iudgement will easily conceive That this power is a right Vs by by the Common Law And the rather when they shall consider That a Commission of Array having beene issued by the King in 5. H. 4. The Commons in Parliament that yeare did not except to any part thereof as illegally no not to the Clauses which seemed heavy over the Commissioners nor did except at all to any the powers of execution thereof over the persons to be commanded but did acknowledge the Royall assent for the amendment and alteration of that Commission into the now present forme to be an Act of great grace And herein Wee cannot but admire that the Penner of this Declaration should urge it as a reason why the Commons in that Parliament of 5. H. 4. complained not for reliefe against the Commission in the powers of execution over the persons to be commanded because as hee supposeth they knew that they were so clearly against the late Statute of 4. H. 4. Whereas if it had beene so they should the rather have complained because they issued against so late a Statute so cleare in the point unlesse the policy and temper of the times be since much altered for in a matter of so high a nature as the powers of this Commission which as this Declaration confesseth did surely most concerne them and the Kingdome They were bound as well in duty as discretion to have sought remedy against so great a violation of the Law and Liberty and the rather at this time when they thought fit to petition against part of the Commission since an exception but to a part especially by him who ought to complaine against the whole is a violent presumption of his allowance of the residue Wee come now more particularly to the examination of this Our Commission as it stands by Statute-Law and herein as in the matter principally insisted upon in the Declaration to be disproved Wee do affirme as formerly in Our Proclamation
That this Our Commission is warranted by Parliament in 5. H. 4. And to this purpose Wee do observe that this Declaration doth confesse That the Record in the Parliament of 5. H. 4. concerning the Commission of Array is an Act of Parliament And that the Question is now onely about the meaning thereof Whether the Parliament meant thereby onely to take away some penall clauses touching the Commissioners as the Declaration affirmes to which purpose onely it alloweth it for an Act or else to settle also the powers of execution thereof over the persons to be commanded as Wee affirme And therein as Wee do agree that at the first the Complaint of the Commons was onely in respect of some Clauses wordes therein which were Greivous and Dangerous to the Commissioners So it cannot be denyed but that afterwards the Copie of the Commission so complained of was delivered by the King to the Commons with an expresse Generall Liberty without any restraint to correct it according to their owne mindes and thereupon the Commons did make use of that further Liberty and corrected the Copy in divers materiall Clauses and Words which concerned the powers of Execution as well as those which concerned the Commissioners though the contrary be strangely affirmed by the Penner of this Declaration as may appeare more particularly by the clauses following wholly omitted by him 1. First the Copie gives power Ad armari faciend omnes illos qui de corpore sunt potentes habiles ad armand tam illos qui de suo proprio habent unde seipsos armare poterunt quà m illos qui non habent unde seipsos armare poterunt To cause to be armed all those who have of their own thereby to arme themselves as well as those who have not wherewith of their owne to arme themselves Which last Clause concerning the Arming of those who are able of Body but not in Estate being such as are by Vs before reckoned amongst the third sort of Our Subjects is wholly omitted in this Commission as it now stands corrected in 5. H. 4. 2. The Copie as concerning the assessing and distraining of all those who are able in their Estates but not in their Bodies goes therein thus Ad inveniend juxta quantitatem terrarum bonorum suorum prout rationabiliter portare poterunt salvo statu suo armaturas hominibus ad arma hominibus armatis arous sagittas sagittariis sic arraiatis triatis qui non habent armaturas arcus sagittas de suo proprio nec unde armaturas arcus sagittas emere providere poterunt ad contribuend. expensis omnium illorum qui sic laborabunt pro defensione dicti Regni nostri tam infra dictum Com. nostrum quà m extra quandocunque indiguerit Ita quòd illi qui morabuntur c. For the finding of Armes according to the quantity of their Lands and goods and as they may reasonably beare saving their degree for men at Armes and men Armed and Bowes and Arrowes for Archers so arrayed and trained which have not Arms Bows and Arrows of their owne nor have wherewith they can buy and provide Arms Bowes and Arrowes and to contribute to the expences of all those which shall so labour for the defence of Our said Kingdome as well within that Our County as without whensoever there shall be need All which as may appeare upon the comparing is much beyond that Commission of 5. H. 4. as it was entred after the correction Vpon these proceedings in 5. H. 4. the corrected Copie being presented to the King with a Prayer by the Commons That from thenceforth forward no Commission of Array should issue otherwise nor in other VVords then was contained in the Copie so corrected c. An Act was thereupon made by the Kings Royall assent thereunto by the advice of the Lords And thus upon the whole Record it is cleare That in the litterall Sence the Commission is fully enacted in the whole and We do not observe that to be denyed in the Declaration And the Art of the Penner seems to be spent onely concerning the intent of the Parliament in labouring to prove That the Commons meant nothing in the Act but the taking away the penall clauses and words concerning the Commissioners And the Argument is drawne onely from the end of the Statute which the Declaration saith was onely for the security of the Commissioners And this the Penner goes about to prove First from the Complaint as being no more Secondly from their amendment of the Copie as being onely concerning the Commissioners Thirdly from the Prayer being to the same purpose Fourthly out of the occasion as supposing the Act necessary on the part of the Commissioners not on the part of the persons to be commanded Lastly out of the subsequent practice of issuing Commissions that there never went out one agreeable with the Copie so corrected And herein to justifie this Our sence on this Act of Parliament of 5. H. 4. and withall to shew the errours and mistakes of the Declaration in frame of the Argument to the contrary the state of the Case stands thus briefly The Commons complained but against the Penall Clauses upon the Commissioners which Wee agree at first but afterwards the King left them at liberty to correct the whole as they pleased And now they alter their minde and doe not rest in correction of those Penall Clauses upon the Commissioners according to their first desire but as it is plaine upon the compare of the Copie as it was corrected with the Commission formerly issued the not observing whereof was the great mistake that doutblesse now mis-led Our two Houses the Commons likewise as wise men who would not wave the advantage of a proffered favour from the King did correct the Commission also in the powers of execution over the persons to be commanded And thereupon the corrected Copie being presented and the Commons expecting that even presently for there was then occasion and often afterwards Commissions of Array would as they did in truth issue forth did pray not only for the indemnity of the Commissioners which had bin indeed but answerable to the first complaint But in the first place they made their Prayer in these Words That from thenceforth forward no Commission of Array should issue otherwise nor in other words then is contained in the said Copie so corrected This now being apparently the true state of the whole case cleared from all mistakes we think it so plaine that it requireth no further Argument to manifest That the intention of the Parliament was both to settle the Clauses concerning the Powers of execution and the Clauses concerning the Commissioners Thus then Wee passe over to the Answer of the Objections First then for the first pretence That the complaint was solely on the behalfe of the Commissioners Wee agree it to be true and perhaps the Commons had no further
the paying of their wages or contributing towards either of them This then being the sence of the words Wee now proceed to the Statutes and apply them to the two Objections the one against imposing of Arms the other against carrying out of the County And first concerning the Statute of 13. E. 1. Thereupon the Objection against the power of imposing of Armes is this This Statute appoints a particular Assize for the kindes of Armes and Proportions as before But Our Commission doth give power to assesse for the kindes any Armes and for the proportions according to each mans ability which the Declaration termes to be without limitation and at pleasure and so is contrary to this Statute To this Wee answer That that Statute of 13. E. 1. besides that it is but an affirmative Statute was made onely for the ordinary defence of the Kingdome for the preservation of the peace at ordinary times and was not intended as a provision of Armes for defence extraordinary but that for the publique defence in time of Danger the King might and must charge other Armes and other proportions according to the exigency of the occasion Both which appeare together if Wee consider that the provision in that Statute mentioned which might be of use for the Peace is very insufficient for the Service of War For We cannot but observe the pettinesse of the Armes even according to the use of that time for he that was rated highest by that Act was to finde but a Hawberge which in that place signifies a Gorget a Breast-plate of Iron a Sword a Knife and a Horse and others but Gisarms which were Pike-staves Knives and other lesse weapons And yet at that time there were men at Armes which were Horse-men of compleat Armour Hoblers which were Light-horse and there were Pikes Lances Pole-axes and other weapons commonly used for Warre And no lesse considerable is it to this purpose That for the charge of this defence no man of what estate soever is by this Act charged above the rate of 15 Pounds in Lands or 40 Marks in Goods and he that hath 15 Pounds in Land or 40 Marks in Goods is charged as high as the greatest which is not to be imagined in case of provision for defence extraordinary And to cleare this further out of this and other Acts it is plain that this very Act expresseth it selfe in these words That every man have in his house Harnesse to keepe the peace and appoints those who are thereby assessed to pursue Hues and Cries after Theeves and Robbers which went in those times with great strength and in multitudes with their Horses and Armour And the old Articles of inquiry upon that Statute being made in the same Kings raigne and to be seen in the Statute-books tend onely to inquiry touching the keeping the peace as whether all men betwixt the age of fifteen and sixty be sworn to keepe the peace and whether they have weapons in their houses according to the quantity of their Lands and Goods for conservation of the peace according to the Statute And the Statute of 2. E. 3. cap. 6. renewes this Statute of 13. E. 1. in these words Item As to the keeping of the peace in time to come it is ordained and enacted That the Statutes made in time past with the Statute of Winchester shall be observed and kept in every point And strange it were to imagine that the wisdome of a Parliament in the matter of arming of the Subject made no greater or better provision against an Enemy then against a Theefe or a Rogue And it is not so proper to charge the Subject at all times in the same manner and proportions as in times of danger And lastly for further clearing this Our exposition of that Statute of 13. E 1. Wee say That although as Wee have already shewed the Commissions of Arrayes did from the time of making the Statute of 13. E. 1. frequently issue both before and since the Statute of 5. H. 4. yet none of those Commissions were regulated by the Statute of 13. E. 1. but either they were as commonly for arming them according to mens degrees abilities without mentioning the Statute of 13. E. 1. Or where any did expresse the quality and proportion of Armes to be found They varyed from the Statute of 13. E. 1. and appointed other kinde of Arms and differenced and proportioned the estates of those who were to finde Armes otherwise then is mentioned in that Statute And sometimes with an expresse Declaration that the Statute of 13. E. 1. was made for the conservation of the peace in a time of peace when there was no danger of a forraigne enemie And though some use might be made of those armes appointed by that Statute in time of danger as well as any other weapon yet the same was not that kind of armour which was principally intended as fitting for such defence as may appeare by the presidents above cited And the constant practice in all after ages for defence extraordinary hath ever been with other armes and after other Proportions as Wee beleeve will not be denyed by any man Wee come now to the Statute of 1. E. 3. whereupon the objection stands thus That the Statute of 13. E. 1. having made such particular assize of Arms as before for the kinds and proportions this Statute doth ordaine That no man from thenceforth shall be charged to arme himselfe otherwise then hee was wont in the time of the Kings Progenitors Meaning as the Declaration takes it for granted according to that former Statute of 13. E. 1. To this Wee shall give this answer That as Wee have proved before 13. E. 1. was never meant as of a provision for defence extraordinary and much lesse that the Statute of 1. E. 3. could intend any such thing And as the Penner of that Declaration cannot therein shew any expresse reference to that Statute of 13. E. 1. and can at the most but barely conjecture it so on the other side Wee shall out of the penning and otherwise upon surer grounds conclude the contrary For first in this case regularly if not necessarily where a later Statute in the substance and meaning thereof wholly depends upon a former and must have reference thereunto the Parliament of 1. E. 3. would have made mention of this Statute of 13. E. 1. as they did thereof the next yeare following when it was renued but for keeping of the peace Next in wisedome it was fitting if so be that they had intended a further re-establishment of the particularities of the kinds and proportions of armes mentioned in 13. E. 1. that when they had a former Statute so punctuall therein they should not have thus left us for a true understanding of their meaning to a generall enquirie of the particular assize used for armes in former times But on the contrary the Statute referring to the former usage in the times of the Kings Progenitors which
the Statute of 4. 5. P. M. cap. 2. are these Be it enacted c. That as much of all and every Act and Statute concerning onely the keeping or finding of Horse Horses or Armour or any of them heretofore made and provided and all and every forfeiture or penalty concerning onely the same shall be from henceforth utterly void repealed and of none effect To this We say first that 4. 5. Phil. Mar. doth not repeal 5. H. 4. either by the words or meaning As to the words They extend onely to a repeal of such Acts which do appoint particular Assizes or Assessements of Arms all which upon that Statute of 4. 5. Ph. M. which appoints a new Assize for kinde of Arms and proportions would be either contrary or altogether uselesse And to that purpose the Statute speaks of repealing of Acts concerning keeping or finding of Horse Horses or Armour which as it must be meant of Acts concerning keeping or finding of Horses in particular for kind or number So as concerning armour in generall it must by the constant Rules of construction of Statutes be meant of Acts of the like nature as the former that is Acts concerning the appointment of some particular armours as a Gorget a Brest-plate and the like such as were the Statute of 13. E. 1. and 33. H. 8. But this Statute of 5. H. 4. is nothing concerning the appointment of any particulars either for the kind of Arms or proportions but doth onely enact a Commission issuable without commanding that it shall issue which is referred to the Kings pleasure upon a lawfull occasion Nor doth the Commission it self mention as is apparent any particularity of Arms or proportions And if the Statute of 4. and 5. Ph. M. were meant of such Statutes as speake of finding Arms in generall it had as well repealed the Statutes of 1. E. 3. 25. E. 3. and 4. H. 4. as this Act of 5. H. 4. which no man will say was ever intended But in truth this Commission being in generall doth no wayes contrary this Statute of Ph. M. but that the particulars of the Assessement by that Act both for the severall Kinds of Arms and proportions might have been very well put in Execution by this Commission For the Commission gives Power to assesse every man juxta statum facultates According to his degree and Ability And this Parliament of 4. and 5. Ph. Ma. appointing Arms sitting for defence of the Kingdom in those times and proportions fitting in their Iudgements for the severall degrees and abilities of every man That Act did not thereby take away the power of the Commissioners wholly but did only give particular rules for the kind of Arms and proportions which the Commissioners were to observe in the execution of their power thereby only regulating but not destroying their powers And if this Statute of 4. 5. P. M. had taken away the first Powers of the Commissioners concerning arming yet had it not taken away the other severall and independent Powers of Arraying Training Mustring or Conducting those men so furnished according to that Statute but that they had remained to have been executed at least by a distinct Commission which might have been issued at pleasure for that purpose And this also appears by the Statute of the same Parliament of 4. 5. P. M. cap. 3. which is in force at this day which being concerning mustering hath occasion to mention and doth expresse the old power still remaining to issue Commissions of that nature in these words That if any person that shall be commanded at any time hereafter generally or especially to muster afore any such who shall have authority or commandment for the same by or from the King or Queens Majesty or the heirs or successors of the Queens Majesty or by any Lievtenant c. do absent himselfe or at his appearance do not bring his best furniture of Array and Arms as he shall then have for his person in readinesse shall be imprisoned c. But neither by that nor the other Statute of P. M. cap. 2. is there any new authority given to the King to grant Commissions for Musters but the same is admitted to continue as not repealed And as to that point of appearing at Musters We made use of that Statute of 4. 5. P. M. cap. 3 in Our Proclamation And doe wonder how the Penner of that Declaration could imagine We meant any such further use therein upon that Statute as the Declaration sets forth And here by the way We observe a mention in this Statute of 4. 5. P. M. cap. 3. of a power of mustering in Lievtenants to whom other Powers contained in Our Commission were also granted and might have been also mentioned in this Statute if there had been occasion And secondly as to this Statute of 4. 5. P. M.c. 2. We say That in case that Act of 5. H. 4. had been repealed by 4. 5. P. M. yet this Commission had still continued in force notwithstanding any bare repeal for that as we have proved this commission was before that Statute warranted by the Common Law which did still remain in force so far as it was not expresly contrary to the further particulars of that Act And how We come to the Objection principally intended against this Commission upon the alteration of the Law at this day since 5. H. 4. wherein the case is this The Statute of 13. E. 1 made an assize of Arms for the severall kindes and proportions according to mens severall estates Then 5. H. 4. enacts this Commission with power to assesse men according to their abilities Afterwards 13. E. 1. is repealed by 21. Iac. The argument hereupon in the Declaration is made thus That the Commission as to the finding of Arms Iuxta statum facultates is so grounded upon that Statute of 13 E. 1. which was then in force and did enact the finding of Arms juxta statum facultates in manner as is therein expressed that that Statute of 13. E. 1. being since repealed that Commission is likewise repealed and become unwarrantable at this day For answer whereunto in the first place We do deny that this Commission is any waies grounded upon 13. E. 1. First for that as We have proved 13. E. 1. originally was not meant as a provision of Arms for defence extraordinary much lesse so intended here Secondly if it were for defence extraordinary yet neither this Act of 5. H. 4. nor the Commission thereby setled have any relation thereunto in words much lesse in meaning For the words There is no mention of 13. E. 1. either in the Act or Commission but the words of the Commission are generall for imposing Arms secundùm statum facultates According to every mans degree and ability without limitation of the kinde of Arms or particular severall
by which We would be loath to bind our Subjects Neverthelesse though Preambles be not in themselves sufficient to declare Laws yet We deny not they are of good use though not convincing Arguments to expound them And for Our power in the matter of Rebellion besides what hath been said We might also adde if it were materiall to this Commission Preambles Recitals and other necessary Inferences out of other Statutes made since those intended in this Recitall which would prove that in case of Rebellion all Our Subjects ought to assist Us and to attend Our Person upon Our command for the defence thereof whensoever We should require it And the truth is the occasion of this Act now urged against Us appears to be for the service of Ireland and the intention of it for so much as is the enacting part was to take away all question concerning the pressing of the Subjects of England for the suppression of the Rebellion in Ireland And so concerned forraign service and not home defence either against Invasion of Enemies or Rebels And thus far the work of the Declaration hath been to overthrow Our Commission by Statutes alleadged to be directly against it There remains yet some other Objections drawn from the opinion of former Parliaments and the practice of Our selves and Our Predecessors and those not directly but by inferences But these as we shall shew are so farre from concluding against Our Commission that they rather prove the contrary The first of these Objections is upon the Statutes of 1. Jac. c. 25. and 21. Iac. c. 28. of Repeals And is thus That the Statute of 4 5. Ph. M. cap. 2. having repealed this Commission for so the Declaration supposeth They had shewed little care of their own and the Subjects liberty in the Parliament of â— Iac. to repeal that Statute thereby to revive the power of this Commission which would have subjected the people to far greater bondage and from thence inferreth That it is not probable that the Parliament of 1. Jac. would have repealed 4 5 Ph. M. As likâ—wise from the Statute of 21. Iac. which repealed the Statutes of 13. E. 1. and 33. H. 8. That it is not probable that the Parliament of 21. Jac. would have repealed those Statutes which in a moderate manner proportioned the Arms every man was to find in certainty And suffer an Act meaning this of 5. H. 4. to continue which established a power in the King without limitation not only to impose Arms but to command the persons of the Subjects at pleasure To this We say that both the grounds of this Objection are mistaken For as We have already shewed neither is this Commission repealed by the Act of 4 5 P. M. Nor is there any such unlimited Power given or Bondage by it as is pretended And therefore Our Answer is That it is no wonder that those Parliaments might repeal 4 5 P. M. as too hard and 13. E. 1. 33 H. 8. as of no use and put the Militia of this Kingdom again wholly under the powers of this Commission being so indifferent between both the other And indeed the Militia did after continue under Lievtenants who had in effect the powers given by this Commission And now We shall return this Objection thus That those Parliaments of 1. Jac. and 21. Iac. would have shewed little care of the safety and defence of the Kingdom to have repealed those Statutes which made provision for Arms if they had thought there were no Law or Power left in the King to charge men with Arms for defence of the Kingdom as the Declaration affirmes the Law now to be But whosoever considers that at that time and long before the power of imposing arms was put in execution by Lievtenants and Deputy-Lievtenants by authority of their Commissions which to this purpose are the same with Our Commissions of Array and that this power was not complained of in those Parliaments must conclude it more then probable that those Parliaments did then conceive there was a sufficient power remaining in the King to impose Arms The next Objection is from the opinion of the Parliament of 4. and 5. Philip Mary c. 3 That if Our Commission had been authorized by Act of Parliament that Statute of Ph. Mar. had been to little purpose whereby the penalty of Imprisonment for ten dayes or forty shillings is imposed upon such as do not appear at Musters being Summoned thereunto by the Kings Commissioners authorized for that purpose Intimating as that the Act of Phil Mar. would never have been made if they had then conceived that We had power to grant such Commissions To this We answer That the particular Arms and proportions of Arms were then before appointed by the Statute of 4. and 5. Ph. Mar. Cap. 2. under certain penalties upon those who should be defective and so a great part of the care of the Commissioners of Array was supplyed by the provision of that Statute and the Commissions of Array being not so proper but in time of Danger and of a larger extent then the power of mustering a Commission of Muster which is part of the power of a Commission of Array would then serve the ordinary turn and for every ordinary default but at a Muster in a time of no Danger the punishment by 4. and 5. Ph. Mar. cap. 3. was great enough And for return of this Objection We say as We observed before That this Statute gives no new power to grant Commissions for Musters but admits the power to grant such Commissions to have been in the King before that time And whereas the Statute of 13. E. 1. appoints no other Officers but the Constables for view of arms it appears by these Statutes of Phil. and Mar. that the King might appoint His Commissioners which he could not if this power of Arms had been wholly grounded upon that Statute The Last Objection of this nature is grounded upon the Common opinion or practice And is this That the Commissions of Lievtenancy so grievous to the people and declared illegall in Parliament had not been so often issued and so much pressed upon them if the Commission of Array not much differing from it in power and not at all lesse grievous to the Subject might by the warrant and authority of the Laws of this Realm have supplied their room To this Our Answer is That it stands upon two grounds First That the Commissions of Lievtenancy were grievous Secondly That they were illegall both which so far forth at least as to the powers wherein they did not exceed the power of this Commission for the other powers are not now in question are cleerly mistaken For as for the grievousnesse we say these Commissions were such as had been long used in the happiest times of Our Predecessors and continued to Our Time And such grievances as did or might arise in the execution