magis necesse fuerit In case of imminent danger for defence of the Kingdome and Countrey from time to time as well to the Sea-coast as other places where it shall be most necessary And although notwithstanding all these limitations and cautions it be true That in this charging of Arms as also for the times and places of calling together Our Subjects and of conducting or leading them and the dangers upon which they are to be so conducted and led much is left to the discretion of the Commissioners as it must of necessity in all Commissions where the places times and occasions of execution of them depend upon future accidents and circumstances and cannot be certainly knowne or described at the time of the issuing of the Commissions Yet neverthelesse it cannot be inferred thereupon That therefore Our Commissioners have a meere absolute arbitrary Liberty of Will to doe what they please But that if they shall wilfully and unjustly grieve any of Our good Subjects in exceeding or not observing Our Limitations or Directions they are by Law clearely punishable by Indictment for the same Nor are or shall any of Our Subjects so grieved be without remedy or reliefe And to the end that every County so farre as in Vs lyeth should have cause to rest the more assured against any evill usage and abuse By this Commission Wee have appointed for Commissioners such as have estates in the severall Counties and are Persons of Honour and Reputation who are not onely engaged to all fairnesse out of their owne interest but also in the concernment of their Posterity Kindred Alliance Friends and Tenants and the good affection of their Countrey which to Persons of such Condition as they are is of a consideration beyond their Fortunes So that Wee hope their forwardnesse in undertaking this trouble for the publike defence will occasion in Our good Subjects rather a willing obedience unto Vs then the least distrust or jealousie of any of them Having thus stated the substance of Our Commission and prevented that mis-understanding which this Declaration might have else begotten thereupon Wee in the necessary justification thereof and vindication of Our owne Honour against those expressions in that Declaration which so nearely doe concerne Vs under the Common name of Evill Councellors as if Wee had violated Our Lawes even those so lately made broken Our often Protestations of governing according to Law and done that which would bring Our people into a slavery shall now joyne issue with Our two Houses in every materiall part of their Declaration both in the consideration of the pretended Danger Inconveniency and Illegality And herein first for the pretended Danger and Inconveniency so much urged Wee do deny That this Commission is full of Danger or Inconveniency to Our Subjects or will bring an heavier Yoke of Bondage then the Ship-money or any other illegall charge taken away this Parliament or indeed any Danger or Inconvenience at all And therein Wee appeale to each good mans conscience and reasonable understanding In a Kingdome as this is which in its fundamentall policy as well for its owne assurance against the danger of Forraigne Aids as the bad use that might bee made of great constant Forces whether forraigne or native must necessarily be defended by it selfe What other way of defence can be imagined but by the Subject What more reasonable proportion of charging them can bee found Wherein can the Limitation of the otherwise Arbitrary Discretion be bettered Or how in any one particular can a more equall fitting way be taken for the avoyding the grieving Our good Subjects in their own particulars Yet withall providing for the defence of our Kingdome in the generall then is by this Commission And Wee cannot but professe Our Wonder That since as Wee shall shew this very Commission was with so much care both in respect of the Commissioners and the powers of execution thereof over the persons to be commanded allowed and setled in all points to the very desires of the people and that in Parliament in the fifth yeare of King H. 4 how such Danger Inconvenience and Bondage can be by Our two Houses imagined in this Act of Ours without violating that rule so often urged by them though not so properly applyed to them without Vs That a dishonourable thing ought not to bee imagined of the Parliament And it is as strange to Vs that all this should happen by this Commission and yet that Our Subjects should for so many yeares past have enjoyed so many happy dayes in the reigne of Queene Elizabeth and Our Father both of blessed memory under the provision of Lieutenancy which is agreed by this Declaration to be little differing from those of the Commissions of Array in the Powers And lastly Wee demand Whether the persons appointed over the Militia by Our Houses of Parliament have not by their pretended Ordinance or Orders most of those powers nay some greater over the Subject in this matter of the Militia then are in this Commission and how they themselves can imagine these powers to be of a better nature by their authority then they are by Ours And as to this taxe of danger and inconvenience as in the generall it did require no answer at all though for the satisfaction of Our people Wee have therein thus enlarged Our selves so for that particular of the Yoke of Bondage thereby in making it heavier then that of Ship-money since they have not shewed in what particulars Wee shall say no more but this That by this Commission no money at all comes to Vs or to Our dispose nor is any money appointed to be raised but onely Arms provided And the Arms which Our Subjects are charged to beare or finde are to bee their owne proper goods which Sir Richard Hutton in his Argument in print against the Ship-money well observed and thereby differenced the providing of Arms and payment of Ship-mony and are provided once for all and not yearly to be renewed as taxes for money might bee and remaine in their owne custody and for their owne defence as well as Ours Wee shall now proceed unto the next generall issue touching the pretended illegality of Our Commission of Array and shall justifie the legality thereof by Common Law and by the practise of former Ages conforme to it and by Statutes in the very point against all the severall pretences mentioned in the Declaration whereunto Wee shall give particular Answers And Wee shall first begin with the Common Law whereunto the Declaration saith this Commission is contrary and therein affirme That this Our Commission is warranted by the very fundamentals of Our Government and as VVee said in Our late Proclamation the right of issuing thereof is inherent in Our Crowne For since as Wee hope none will deny the Kingdome must of necessity be ever in readinesse in time of danger at least by power of Arms to prevent or suppresse Rebellion at home and Invasion from abroad
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
being indefinitely spoken Wee conceive must be understood of all Kings times as well before as after 13. E. 1. the usage therein meant is but Consuetudo Angliae the Common Law and the Parliament could not in all probability in the mention of so ancient an usage intend so late a Statute as this of 13. E. 1. which was but new in the particularity of the Assize though antient in the Rule of charging according to the quantities of every mans Lands Goods the former Assizes having been also different Nor considering that of Necessity the severall kindes and proportions of Armes ever did and must vary with the times could they intend that there ever was for the times past or could be for time to come any such constant rule of any such particular assize concerning Armes whereunto they could refer as constantly used for the times past or that might constantly endure for time to come neither ever was or can there be any other constant rule then that generall rule of the Common Law which can never faile for the assessing Armes from time to rime for the kindes according to the present use and for proportions according to mens abilities And it were very strange that the Parliament of 1. E. 3 could conceive That for the defence extraordinary the particular kindes of Arms in 13. E. 1. especially such petty provisions could be proper and sufficient at this time in 1. E. 3. and would so continue afterwards And now that We have cleared this first part of the Statute of 1. E. 3. as concerning the Arming a mans selfe that it is not thereby intended That the Subject should not be charged with Armes otherwise then according to the Statute of 13. E. 1. We shall deliver what Our selves conceive of the meaning thereof And it is thus Towards the end of the Reigne of E. 2. severall Commissions of Array issued into severall Counties in execution whereof the Commissioners had much grieved and oppressed the Subjects Insomuch that upon complaint speciall Commissions of Oyer and Terminer usuall in those times were sent forth for the enquiry after those grievances and oppressions And although it doe not appeare what those were yet since the Complaint was not against the Commissions themselves as illegall Wee cannot conceive otherwise but that it was against the wilfull excesse of the Commissioners in their surcharging the Subjects with Armes beyond their abilities of estate to beare as charging a man as a Horse-man where it had beene sufficient for for his estate to have borne Armes as a Foot man and the like contrary to the Tenor of the Commission But this course producing indeed little effect in the time of King E. 2. partly out of the favour which it is likely the Commissioners did finde and partly by reason of the short remainder of His Reign there was just occasion both for Complaint and Reliefe in this next Parliament of 1. E. 3. And though the Particulars of the Petition in 1. E. 3. and the Answer out of which according to the manner of those times the Printed Act was made doe not appeare for the want of the Roll of that Parliament yet Wee may well judge thereof upon this occasion happening within the compasse of about one yeare before and thereupon conclude as for the true meaning of that Act That the provision intended to be made was onely against the excesse of the Commissioners which rather justifies then any way disproves the Lawfulnesse of such Commission And so the sence of the Act applyable to the Complaint will be That whereas the Commissioners had over-highly taxed the Subjects the Act provided That they should not be otherwise charged then as they had been in the times of former Kings and according to Our Commission moderately and so as they might live still according to their former condition as in like case of other Statutes against outragious Distresses and Amerciaments And although Wee take this to be the sence of that Statute yet if any man shall thinke this part of the Statute of 1. E. 3. Concerning arming a mans selfe to be the same with the words of the Statute of 25. E. 3. against constraining any man to finde men of Armes c. which is the sence of this Declaration which makes both Statutes to be to the same effect and makes the inference against Our power of imposing Armes upon them both We shall not contradict him therein being confident to make it evident that this Commission is no way contrary to the words or meaning of that Statute of 25. E. 3. But before Wee come to that Statute Wee shall make one Observation upon those Statutes of 13. E. 1. 1. E. 3. both together and thereupon shew that in the judgement of the whole Parliament of 4. H. 4. whose authority is chiefly insisted upon in this Declaration Our Commission is no way opposed by either of those Statutes And it is this It appeareth That the late issuing of the Commissioners complained of in 4. H. 4. which the Declaration supposeth were of the same nature with Our Commission but Wee deny it was the occasion of the Petition of the Commons in that Parliament In which petition they intending to shew the illegality of those Commissions and to obtaine as they thereupon did a confirmation of former Acts to the contrary do recite the Statute of 25. E. 3. 18. E. 3 c. 8. and that part of the Statute of 1. E. 3. which is against carrying of men out of their Counties and yet neverthelesse they wholly omit this Statute of 13. E. 1. and this first part of the Statute of 1. E. 3. concerning the Arming Whereas it is to be presumed they would have also recited this Statute of 13. E. 1. if they had conceived the same to be as this Declaration sets it forth the certaine Assize for armes and such a Statute whereto all the rest had reference or any way materiall against part of these Commissions But howsoever making use of the later part of the Act of 1. E. 3. against carrying of the Subject out of the County they would have made use also of this part of 1. E. 3. concerning the arming and desired a confirmation thereof as well as of the residue and not thus purposely rejected it if so be they had not upon consideration first resolved that that part of 1. E. 3. was no wayes against the Commission And now Wee come to the Statute of 25. E. 3. whereupon the Objection stands thus By the Statute of 25. E. 3. the Subject is not to be constrained to finde men at Armes c. if it be not by common consent and grant made in Parliament But by this Commission the Commissioners have power without consent or grant in Parliament to command those who are able of body and estate to arme themselves and those who are impotent but able in estate to find Armes for others which the Declaration in some places
levied upon the People by Lords Lievtenants Deputy Lievtenants Commissioners for Musters Justices of Peace and others by command or direction from Us or Our Privy Councell against the Laws and free Customs of the Realm which the Declaration alleadgeth to be the breach of those Laws Then the words of the Petition are thus applyed That here is a Taxe or Charge imposed upon the people by Compelling them to find Arms by command and direction from Us under Our great Seal without consent in Parliament And the meaning of the Petition is thus inforced That it is very well known and doth sufficiently appear that the charges there mentioned to be laid by Lords Lievtenants and Deputy Lievtenants were the charging of the Subjects with Arms against Law by colour of their Commission from Us and consequently this Commission is against the Petition of Right For Our cleerer answer We shall set down the summe of the Petition for so much as concerns the unlawfull charging of the Subject And it is this First the Petition recites severall Statutes as made against the compelling the Subject to the making or yeelding any Gift Loan Benevolence Taxes Aids or such like Charges without Common consent in Parliament and next setteth forth a violation of those Statutes by the Commissions of Loans and Execution of them and that divers other Charges had been laid and levied by Lords Lievtenants and others as is aforesaid and lastly the Prayer is substantively of it self without any relative words yet extends to all that was before complained of and contains the substance of all those former Statutes in these words That no man be compelled to make or yeeld any Gift Loan Benevolence Tax or such like Charge without common consent by Act of Parliament And Our answer to that part of the Prayer amongst the rest is Let right be done as it desired And Our answer to the Objection stands thus First that whatsoever sence any words of the Preamble may seem to import yet without question there is no more in this Preamble then is after contained in the Prayer So if Our Commission be not against the Prayer there can be no Argument against it drawn out of the Preamble or if in truth there were more in the Preamble then in the Prayer whereunto only the Royall assent extends yet nothing could bindingly be concluded thereupon as We shall further shew upon occasion This then onely rests to be considered upon this Objection Whether the powers in Our Commission to compell the Subjects able of body and estate to Arm themselves and in case of impotency to find Arms for others for the necessary defence of the Kingdom can be said to be a compelling of the subject to make or yeeld any Gift Loan Benevolence Tax or other like Charge contrary to the Prayer of the Petition Upon the Case thus truly stated it is cleere That here is no yeelding or making of Gift Benevolence or Loan And as for making or yeelding any Tax or other like charge though it be true That this arming a mans self or finding Arms for another cannot be done without Charge Yet We appeal to every mans understanding whether Our Subjects can upon this Commission be said to make or yeeld for so are the words any Tax or other Charge against the Petition any more then if We command a City to repair their Walls or a Levell putting the Case before any statute to take away all colour of evasion to repair the Sea-banks when they were in decay being no particular advantage to Us but for the Common good of themselves The truth is That albeit the imposing of divers charges commanding divers Acts drawing charges upon the Subject though possibly for their advantage are void in Law notwithstanding it doth not follow that they are void as against this Petition For the Petition of Right as against the charges therein mentioned is onely to be intended of Money or other thing valuable and to be parted with to or for Us or Our advantage such as are all the charges more specially mentioned in the preamble and Prayer as that of Gift Loan and Benevolences And such as were those Charges intended in the Preamble under the generall expression of divers other Charges imposed by Lord Lievtenants c. which We think is very well known to most Counties to have been meer Pecuniary Payments and which We ought to have born And for the other charges that is of Taxes Tallages Aydes likewise mentioned which as to this purpose are but Synonoma and of one signification they are meant of money or other things valuable and for the King and so used in the old Statutes and had been in former times imposed upon the people without Act of Parliament and accordingly all of them are so to be expounded in the Preamble And the Prayer of the Petition saith nothing expressely against the Commanding the Subject to do a thing which may be necessarily of expence or Charge wherein the Act is onely intended and the Charge but a necessary Incident but the Prayer is onely against the compelling of the Subject to yeeld or make those kinds of charges So as the cleer sence of the Petition both according to the occasion of complaint therein mentioned and the Laws whereupon it is framed as well as the propriety of the words is only against drawing from the Subject either money or money-worth by any of those particular charges therein mentioned or any other charge of like nature under what specious title soever for the Kings advantage which the more plainly appears for that the charge must be yeelded or made as upon Gift Loan c. which must necessarily be intended unto some person and no other person can be here colourably intended but the King And if the Petition by any construction may extend against the commanding of any Acts which in the execution may induce charges yet such charges must according to the very words of the Petition be such like Charges that is for Us or Our advantage as the particular Charges therein mentioned of Gift Loan c. But this charging of the Subject with Arms for the necessary defence of the Kingdom cannot be said for Our particular advantage all Our Subjects having therein a common interest As for the meaning of the Petition inforced in the Objection from the Charges by Lord Lievtenants and others complained against in the Preamble sure We are that those must be such in the particular as are after contained in the generall words of the Prayer to which We have answered before And though it be to this purpose said in the Declaration That those Charges by Lord Lievtenants and others were meant of charging of the Subject with Arms certainly no such thing can appear in the Petition which speaks but only of divers charges but names none in particular nor can there be any other assurance that the Houses did intend any such thing but by Votes wherein they onely speak
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
HIS MAIESTIES ANSWER TO THE DECLARATION OF BOTH HOVSES OF PARLIAMENT Concerning the Commission of ARRAY Of the 1. of July 1642. Printed at Yorke and reprinted at Oxford by His Maiesties speciall command Anno Dom. 1642. HIS MAIESTIES ANSWER to the DECLARATION of both Houses of Parliament concerning the Commission of ARRAY HAving first received by the published Votes and Declarations of both Our Houses of Parliament severall informations of evident and imminent danger unto Our Kingdome from enemies abroad and at home and finding that Our Commissions of Lieutenancie although Wee did since the beginning of this Parliament grant the like for the County of Yorke to the now Earle of Essex with the privitie of both Our Houses of Parliament and without exception from either and that the same was the meanes for defence of this Kingdome used in the happy times of that good Queene Elizabeth and Our blessed Father and confirmed as well by the opinions of Iudges and Lawyers as the universall obedience of the Subjects were all of them without hearing any of Our Councell learned voted illegall and by Our House of Peers called in to be cancelled And that thereupon Our Kingdome lay open and exposed to all dangerous attempts without other provision then of a late pretended Ordinance of both Our said Houses which being made without Vs and contrary to Our expresse will declared and after it had beene twice refused in Our House of Peeres and after the departure of a major part of the Peeres was so farre from being a meanes to prevent danger that if it should have beene admitted it would in all probabilitie have beene the ready way to confusion and ruine as being made in an unparliamentary unpresidented and unjustifiable way and therefore of a most dangerous consequence both to Vs and Our people as well in that particular as in the Example Wee did therefore for the avoyding of the perill of delayes and expence of time in disputes issue forth such Our severall Commissions of Array into Our severall Counties as upon great advice Wee conceive were not only secured for but also might well be most satisfactory unto both Our Houses as being beyond all just exception in the point of Legality Danger or Inconvenience the same having beene heretofore most deliberately agreed upon and settled as Wee shall herein shew in and by the care and wisedome of the Parliament held in the fifth yeare of King Henry the fourth And Wee expected for this Our so Princely care of Our People and observance of Our Lawes rather the dutifull thanks of both Our Houses then the returne of such an Answer or Declaration as causelesly imputes to this Our so well intended and justifiable an act not onely upon mis-construction and mis-application of severall Acts and Declarations in Parliament the taxe of illegality but also marketh it upon the mis-representation of divers powers and omission of divers Limitations in Our Commission with the brand of extream danger and inconvenience thereby to Our people and of an heavier yoke of Bondage then either that of the late Ship money or any other charge taken away this Parliament In all which for the better and further satisfaction of Our well-affected people and to save them if possible from incurring any danger either by obeying that Ordinance or disobeying Our Commissions in both which We are resolved to require a strict examination and account We have taken the pains to examine the said Declaration and the Objections therein against Our Commissions And for the better understanding of the severall particular doubts which are now raised thereupon We hold it necessary in the first place to set forth the true end of these Commissions with the severall Powers and Limitations thereof which by this Declaration are drawne into question together with the severall mis-representations thereof in this Declaration The Subjects being of three sorts Some having good estates and able bodies Others being of good estates but impotent Others able of body but not in estate And the service required being for the necessary defence of our Kingdome in generall in the time of danger The Commissioners are to cause those of the first sort to Arme themselves according to their degree and estate and serving in Person they are not bound by this Commission to find Arms for any others Those who having estates are not able to serve in Person are to be assessed and may be distrained to finde Arms for others according to the quantity of their Lands and Goods But with this Limitation prout rationabiliter portare poterunt salvo statu suo that is That they be charged but moderately and so as they may live still according to their former condition As for those of the third sort who are not able to Arm themselves by this Commission as it was altered by common consent in 5. H. 4. for it was otherwise before that time they are not as to this matter of Arming medled withall And therefore this part of the Commission is mis-represented in the Declaration Which supposeth a Power given by this Commission to charge all men without distinction with Arms at the discretion of the Commissioners without Limitation and those that are able to finde Arms and such as are impotent to finde men at Arms according to the quantity of their Lands and Goods And also wholly omits the manner of the charging them which is to be moderately and so as they may still live according to their former condition The Commission having thus with equality and indifferency charged Our Subjects with provision of Arms it further provides for their calling together training and exercising not as it is in the Declaration generally at the pleasure of the Commissioners without restraint either of time or place But that they shall be called together ad certos dies loca quos videritis magis competentes expedientes pro populo nostro minùs damnosos At such times and places as the Commissioners shall thinke to be most fitting and expedient and least hurtfull unto the people And having thus provided for the Arming and preparing Our Subjects for defence of the Kingdome In the new place the Commission gives power to the Commissioners to leade them to the Sea-coast or else-where but not at the pleasure of the Commissioners as may be inferred out of the Declaration nor without Limitation though omitted also in the Declaration But the Commission provides That they are to be led to the Sea-coast or else-where ubi ac quoties necesse fuerit ad inimicos nostros expellend debelland destruend cum periculum immineat At such times and places as it shall be necessary for the expulsion vanquishing and destruction of Our Enemies when there shall be imminent danger And it further provides in another part of the Commission That they shall be conducted cum periculum imminuerit in defensione Regni Patriae tam ad Costerum Maris quà m alia loca ubi
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
thought at the begining nor till after an occasion given by the offer of the Liberty for a totall reformation But then they might desire an alteration accordingly For the second pretence which destroyed makes an end of the question That the Commons made no amendment in the Powers of execution over the persons to be commanded It is apparently mistaken as appeares by the particular instances before mentioned For the third pretence of the Prayer which came not till after the Commission was in all points so as before corrected That the Commons did not desire any amendment or Declaration concerning the Powers of execution that is also mistaken For having made those severall amendments in the very first place before any particular desired on the behalfe of the Commisisioners their prayer is as generall as their amendments That from thenceforth forward No Commission should issue otherwise nor in other words then is contained in the said Copie For the fourth pretence That it was unnecessary to take care of the persons to be commanded because that the Powers of execution over them were against 1. E. 3. cap. 5. 25. E. 3. cap. 8. and 4. H. 4. cap. 13. and that the Commissions of that kind were then so lately damned in 4. H. 4. Wee Answer That if it were so there was the more necessity for them to complaine as We have shewed before But in this also though it be needlesse We shall herein further cleare Our Commission from those Statutes As for the occasion of reliefe for the Commissioners more then for the persons to be commanded We say the Commons could not but know that there was no more occasion for the one then for the other For the same Law of 4. H. 4. if it had as is pretended by the Declaration expresly damned the Commission as unlawfull in the Powers that without more had apparently to every common Iudgement sufficiently secured the Commissioners against all refusalls And in truth the persons to be commanded being most of them of the lower sort had more reason to feare the Commissioners then the Commissioners being men of Power had to feare any trouble by Fine or Imprisonment or otherwise from any of the Courts above especially in a time when Parliaments were so frequent For the last pretence of contrary practice Our Answer is First We deny this which the Declaration affirmes That though many Commissions of Array did issue out after 5. H. 4. yet none of them did agree with it in words and matter For We say That divers Commissions were the very same saving in those things which were necessarily and as of course to be changed as amongst others may be seene in the after times of King Henry the fourth And as unto the pretended contrary practice Wee agree that it is true Divers Commissions of Array did issue out which do vary from this Statute of 5. H. 4. yet Wee deny that they must be therefore contrary to it For however upon the Commission of 5 H. 4 as it was corrected in the severall Clauses in such manner as before it is enacted that from thenceforth forward no Commission should issue out otherwise then is contained in that copie yet it is most evident notwithstanding that the meaning of the Law could never be to tye the King to the very words of that copie For then at all times the Commissions must have begun with Rex c. and not Carolus or Regina and ended with the same Teste for time and place and just the same preamble of danger be it true or false whatsoever other occasion had been must have been meant to be expressed All which are absurd And in this as in all Acts of Parliament as well as in Wills the intent clearly and necessarily appearing out of the Act it selfe is the Law which in this case was not so much to tye to the very identicall words as That the King should not issue out any Commissions of Array which should exceed this which was so settled by any further penalty on the Commissioners nor in the powers of execution upon the Persons to be commanded which sence appeares in this that in such a case it could never have been meant That the Powers of execution of the Commission being severall as to Array Assesse Arme Traine Muster and Conduct and all these not necessary on all occasions nor all alwayes equally fit to be entrusted to the same persons That the King should be bound at all times unnecessarily to command the execution of them all and equally to entrust the same persons with them all as he must have done in case the Act had beene litterally to be expounded in each title The truth is many Commissions did vary yet still were warranted as not exceeding that of 5. H. 4. in the powers As sometimes granting but part of them when there was no cause to use all as also some varyed on the occasion as sometimes providing against an invasion in this or that part onely sometimes more generall throughout the Kingdome And lastly it is true that some were upon occasion of rebellion for which there is as much cause as against a forraign enemy for those Commissions are not against 5. H. 4. which was a president onely for the power of execution of Commissions of Array whatsoever might be the necessary occasion to issue them And as this particular Commission sent forth in 5. H. 4. and thus after corrected was on the occasion of the feare of the French and therefore was upon that accident made onely as against an Enemy so if according to former practice the like had then issued in case of Rebellion in which case perhaps Rebellion had beene mentioned as the cause then the suppression of Rebellion might have beene inserted in this president and then the Argument might have beene at this day used as well against the warrantablenesse of this Commission in case of Invasion And as to the president of the Commission of Array in 6. H. 4. cited in the Declaration as not agreeing with that of 5. H. 4. neither in words or matter We conceive it is in substance warranted by it For there the King upon occasion of the French being in Piccardy ready to besiege some of his Forts there and hearing that they intended to come to aide the VVelch being then in Rebellion sends out his Commissions into Kent Somerset and other Counties to Array Train and Arme the Inhabitants there to the end they may be ready as well at the Sea-coast as else where where and as often as there shall be necessity for the expelling vanquishing and destroying of those enemies when there shall be imminent Danger as in such case had beene accustomed But he thinks not fit to give to them the power of conducting them which is the Commission of 5. H. 4. But shortly after upon information of an intention of the VVelch to enter into England a Commission issues to Sir Thomas Barkley touching some
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
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