reason why the negative voice is not consistent with this goverment for if he hath a negative voyce the Government is meerely Arbytrary inferiour Courts may a while be refreshed herewith but the fountaine will soone dry up and what then will become of the rivilets If this may be defended De Jure to be done that the King may deny his Assent to twenty Bills preferred unto him by the wisedome of his Parliament for the Publike good there will fall oâ—â— a totall defect of Justice in a short time without God incline the hearts of Princes miraculously And this admitted how would it let loose the reines of Government for if there were no supplement of new Lawes the old Lawes would soone expire diseases breeding in the Body Politique even as in the naturall requiring new Lawes the ministration of new devised remedies to suppresse the mischiefe the which the Art of man cannot cure or prevent by provision of old Lawes therefore for this very reason the Kings negative voyce is inconsistent with Government Further to what end is the Oath so solemnly tendred and taken by the Kings of this Nâ—tion at their Coronations Is it meerely superfluous or is he bound now and is he presently loosed in his practise and goverment The Kings Oath at his Iâ—auguration against the negative voice How doth his negative voyce in Parliament and this Oath stand together in which Oath he sweares to confirme those Lawes Quas vulgus elegerit which his people shall chuse Some materiall words in this Oath explained the true sence and meaning of the words extending onely to future Lawes to be chosen by the people as I take it cleare without all question for to lawes already established precedent branches of this Oath doe relate else there must be a Tantology which in an Oath penned with such wisedome and deliberation we must not conceive The word Consuetudines joyned with the words of this â—ranch of the Oath Object objected by his Majesty in ore of his Declarations plainely to intend this branch of precedent Lawes onely for Customes cannot commence at this day is a word of large fence in Law Sol. Merchandises vid. Mâ—cae ca. 30 Note that this word Consuetudines is also taken for Statute law as Centra consuetudinem communi conciliâ— Regni edit Câ— M. C. f. 5. 6. for Rents and Services due to the Lord are called Customes beâ— sides this woâ—d Consuetudiâ—es in this very Oath plainely pointeth out Lawes and Statutes Franchises and Liberties for have the Kings of this Realme granted Customes in this sence to their people as are the words of one branch of this Oath they cannot be Customes and yet have such denomination even at their very commencement as these words report but of this enough Now the people here intended in this Oath are the High Court of Parliament for where can the people make election of wholsome Lawes for themselves but here The Commons are there representative the Lords not so but personally that is the reason a Peere may make a Proxy not the other where they are representatively assembled for no legall Assembly or Convention totius populi can any History record or antiquity of this Nation ever mention but this convention of Parliament I will say no more in a truth so cleere to every capacity plaine and obvious but people dis-affected clamour much and say How can this be since the Kings dignity is above all Law his presence suspends the Law and surely if he may suspend the Law by his presence and that a Law already made and in being then surely he may deny efficacy or force to any Law not in being by an explicite Act or deniall of Assent for the former case is but implicite and for proofe of this they may object that ancient Case of Law Object That a Villaine in whom his Lord hath both in person and estate the inheritance the absolute and free disposition of him by Law so he doth not maihem him if in the presence of the King he is a free man he cannot be seised by his Lord but it is for the time an Enfranchisement Sol. To which I answer that this Case is ancient and the Law in this particular is antiquated not abrogated howsoever it is pertinent to out present purpose I say this Case stands upon its particular reason for the Kings presence is a sufficient Protection in favour of liberty against the Lord who doth not agere civiliter against his Villaine that is to say claime him in a course of Justice for then if the proceed in a judiciall way The Kings presence no Protection against the power and execution of the law where the power and authority of the Law appeares as he may then I conceive the Kings presence is no protection but it is like the case of a man upon an Execution awarded against him who flyeth into the Kings presence upon a Capias ad satisfaciendum directed to the Sheriffe for in that Case I take it the Law is plaine the Sheriffe must with the power of the County if needfull apprehend him and if he returne the especiall matter unto the Court without executing the Writ the returne of the Writ in this case is not good and if the party escape the Sheriffe is subject to an Action at the Suit of the party who is damnified thereby Thus I have done with this particular I meane the negative voice and if there be no coersive power to rectifie the abuse of Authority Regall as some would have it yet it remaines still a transgression from the rule of Truth and Justice and that is all that I desire at this time to prove If there be no limits for the impetuous waves of the proud Ocean God hath appointed the Sands to stand up and choake them Loe here God and Nature against exorbitant power but of this sufficient There yet remaineth the last part of this Priviledge afore mentioned a little to be spoken of The proceedings of Parliaments paralleld with the proceedings of inferiour Courts viz. That the proceedings of this High Court are not subject to any extrajudiciall censure or debate wherein I will briefly-parallel this with the proceedings in inferiour Courts where you shall finde that they are not so much as to be retarded or delayed by any verball command of the King their judgements binding all untill by legall course reversed no man no not the King himselfe authorized to question much lesse nullifie their Acts in any extrajudiciall way so much ought the judgement of the Law to be had in reverence The King cannot warrant the absence of any man in his service The King cannot retard Justice but in a legall way either by any verball or Certificate by Letter to the Court of Justice but it must be done legally by Writ under Scale or otherwise it will turne to a default he cannot retard Justice but in a legall way And what is extrajudiciall
point the Common Law formerly recited is still in force viz. That none are bound to attend the King in his Warres either within or without the Realme unlesse in case of sudden invasion unlesse by their Tenures if by their Tenures bound to attend him in forraine service as that is not cleerely granted yet you see no penalty ensues for default thereof unlesse the high Court of Parliament impose it a president of which Escuage assessed Service not compulsary in effect no service we have not had since 8. E. 2. no such service penall or compulsary without Parliament which is in effect as if you should say No such service at all without consent of Parliament But I will leave the Common Law I hope vindicated from all objections and come we to the Statute it selfe and that is that such number of Souldiers shall be imprest in all Counties of this Kingdome by the Committees for that purpose as shall be appointed by the King and both Houses of Parliament This is the substance of the Act if not the words and here you may see this Statute is tender of the ancient Birth-right and freedome of the subject for it reciteth it and withall maketh but a temporary provision for Ireland The statute for the releese of Ireland but temporary The Common Law onely in force for the Militia of thiâ— Kingdome against all persons except the high Court of Parliament Vi. infra which occasion ceasing the Common Law hath its force againe so that as to the Realme of England and elsewhere except Ireland the Common Law hath its force and is at present effectuall against all power and authority either of the King or Subject but only the supreme authority of Parliament Object But it may be hence objected that since this Act extends onely to Ireland therefore the Militia for the service of this Kingdome rests as it did before not within the letter or sence of this Act. Sol. Implication for sure the King would not have joyned in an Act if he might have done it legally before Object I answer if we should admit this which for Argument sake we onely doe there being something to be gathered by implication from the words of this Law touching the power of the Militiia as appertaining to the Parliament then the Common Law formerly recited must rule us and here it is said The Common Law That none shall be forced out of their Shires c. is intended without wages and therefore if they have pay or wages they may be legalâ—y compelled by the King to attend his service in the warres and so are the Statutes of 1 E. 3. 18. E. 3. and divers others and the opinion of that reverend Judge Thirninge in the time of H. 4. is so to be intended Sol. No Innuendo in private affairs much lesse in Acts of Parliament allowable I answer first if this should be granted it is a strange and dangerous way to expound Lawes and Statutes and to inlarge the meaning of the Law-makers with an Innuendo a thing not permitted even in private affaires much lesse to be allowed in generall and publike lawes viz. That they shall not be forced out of their Shires c. innuendo without wages by this course Lawes and Statutes shall be wrested and made a noâ—e of waxe capable of any forme or exposition but there is one great reason which will make this Objection but meere cavillation if I have not satisfie it already and that is this That one Session of Parliament viz. 1 E. 3. confirme and makes both these Lawes 1 E. 3. ca. 5. 1 E. 3. ca. 5.7 explained 18. H. 6. 19. 7. H. 7. 1 3. H. 8. 5â— recites the Common Law before remembred and confirmes it too 1 E. 3. ca. 7. and all other Statutes relating to this Law have these words or to this effect That Souldiers (a) Imprest viz. Forreine service not compâ—lsary by the law positive penall by authority of Parliament Vt supra 1 E. 3. ca. 7. may heâ— also intended of the Impressing that Militia that was not hereunto bound either by Tenuâ—e or Contract both branches of the Militia intended by this law legally raised or imprest 1 E. 3. ca. 7. intended most especially of that generall and more absolute power of the Militia not of the positive Militia viz. of those that were bound by Tenure c. imprest by the King (b) The word Commission in the statute of 1 E. 3. ca. 7. must be intended Commissioners derived from the authority of parliament not any oâ—her regall Commission so forreine service might be â—ompulsary even of those that weâ—e bound by their Tenures viz. by such Commissions Commission for Scotland or Gascoigne shall have wages Or forreine service f. 1. E. 3. 7. the one Statute is generall in the negative That they shall nor be forced out of their Shires either with wages or without as the sence is plaine to any rationaâ—l man The subsequent Law saith That the Kings souldiers shall have wages so that having wages allowed they may be compelled to serve Here seemes repugnancy or contradiction may be said To reconcile this and to manifest to the world the honour and wisedome of a Parliament notwithstanding any aspersion by the rule of law and reason you must make such exposition of any Law as in all parts may be operative and effectuall if it may be and that each Chapter of a Session of Parliament may have their genuine and proper operation why then these Statutes Ex visoâ—ribus actus an excellent way of expounding Statutes by comparing and conferring one Statute with the other are thus to be intended 1 E. 3. ca. 5. 7. Statutes differing in matter and substance viz. That 1 E. 3. ca. 5. and 7. are Statutes differing in matter and substance the one not having any relation to the other though they may so seeme upon the first view for 1 E. 3. ca. 5. extendeth onely to the Militia limited by the positive Lawes cap. 7. to the Militia imprest by authority of Parliament for forreine service which could not legally be dore without this authority as you have formerly heard and so the one doth not crosse or oppose the other which of necessity they must doe if other constructions be made for they treat of severall matters and the sence of Law makes a great disparity betweene them though there be a sound of words seeming otherwise so that 1 E. 3. ca. 7. is thus to be intended The Kings Souldiers going in forreine service shall have wages viz. The Kings souldiers legally raised by authority of Parliament and so there is no violence offered either to the letter or sence of either of these Lawes The power of the Militia to be implyed by the King in Forreine service with wages printed in Calvines Case denied for law That which is printed in Calvins Case a famous Case well knowne to Lawyers was but the
having in the former debate relation onely to the positive Lawes viz how those that were bound by Tenure or Contract to Military services could be inforced out of their Shires Thâ— Commission of Array useth this power Vi. ante which are but a paucity in respect of those which are not imprest by a more absolute power being neither by Tenure nor Contract bound thereunto and this power hath been made use of both by King and Parliament at this time most especially therefore here I will speake of the Militia of the Kingdome in generall comprising those that are bound by Tenure as others also and shew you in whom the disposition of the other branch of the Militia No positive law vests the Militia of the Kingdome in the King personally Vi. ante Two branches of the Militia extraordinary absolutâ— ordinary or limited by the positive law viz. that which is limited by the positive Lawes is vested and setled by Law which I take it is not so plainely expressed before The Militia therefore is apparent to be of a two-fold consideration extraordinary and absolute or more generall ordinary and limited by the positive Lawes Object But some may say This will not be proper discourse here the debate of this extraordinary and absolute Power of the Militia it being out of the compasse of the positive Lawes which I have promised should be the onely square and rule of this discourse Sol. But you will finde it here necessary to speake somewhat of this as giving great light in this other branch of the Militia and withall it is a rule in Law that the best way to expound the meaning of any Law Two parts of every statute or law remediall is to shew you what the Law was before for by that meanes you shall come to understand the two maine parts of every Law remediall The mischiefe usually mentioned in the Preamble and the purview or enacting part specified in the body of the Act. It is conspicuous therefore enough that this absolute and more generall power of the Militia was alwaies in the Parliament onely what was communicated by Parliament Ratio Why the absolute power of the Militia in Parliament and not in the King or any subordinate to him be it to the King or his subordinate Ministers was alwaies by positive Lawes or Statutes limited yea to what purpose had been the many positive Lawes concerning the Militia viz. That none shall be compelled otherwise then the positive Lawes Nota. prescribed to Military services if this more absolute and supreme power of the Militia had rested still in the King What had these Statutes enacted Verily even nothing at all had they limited and restrained all persons without exception Two estates of one thing viz. absolute and limited in law repugnant and contradictory the King as well as his Ministers and yet had this unlimited power remained in the Regall Authority the King should have had in one right and capacity two Estates or Powers of one and the selfe same thing viz. of the Militia absolute and limited a principle so repugnant and contradictory that even common sence rejecteth it it is as if one should say A man is restrained of his full liberty and yet may make excursions abroad wheresoever he pleaseth Further if this absolute power of tâ—e Militia of this Kingdome had been an incident unto the Royall prerogative No statute mention any thing in this nature viâ— guest or debate would his Majesty and his Royall Predecessours from time to time have divested themselves of this Royall Robe and have yeelded to have been limited by the positive Lawes touching the Militia yea without any contradiction or reluctation for ought that is apparent if this absolute power of the Militia had been his undoubtâ—d Right and Prerogative It is a thing so unquestionable it needs no further answer But that which must stop all contradiction Nota. or cavillation rather in this particular is That the King himselfe in none of his printed Declarations claimeth that absolute power in the Militia but groundeth his Commission of Array Vi. anâ—e as also all other his proceedings in this nature upon the positive Lawes viz. upon the Statute of 5. Both these Statutes repealed the common law only in force H. 4 formerly at large spoken of by which Statute if it were in force at this day he had no power in the Militia but as the Statute of Winchester had prescribed and limited as formerly you have heard Which Statute of Winchester would in no sort warrant this illegall Commission of Array grounded upon 5 H. 4. as I take it cleare To give you an instance materiall by this Commission of Array they may be forced out of their Shires but not by Winchester as I conceive unlesse in case of suddaine comming in to this Land of enemies according to the Common Law for Winchester in this without question affirmeth the Common Law Nota. though it doth also inlarge the Common Law in the assize or proportion of Arms making all estates both of lands and goods liable to the Assize there prescribed By Winchester the assize is certaine Commissions of the King grounded upon Winchester formerly for Arraying men according to the statute no Commission at this day warrantable upon this statute nor any other positive law If any Regall Commission for Arraying men warrantable at this day it must be only upon the â—ncient common law recited in stat 1. E. 3. ca. 5 relating only to Tenures Nota. no latitude to Commissioners to assesse whom or how they please But by this Commission of Array no certaine Assize of Armes but left to the discretion of Commissioners But to returne to our former discourse and to adde one thing more Generall lawes Pro bono publico binde the King though not expresly named W. 2. 13. E. 1. Also the King by assenting to these lawes seemeth implicitely to acknowledge it in Parliament If this absolute power in the Militia had been his Majesties ancient and undoubted Right yet it is cleare he had been debarred and foreclosed thereof by these positive Lawes yea and constant usage in all times hath manifested this as an undoubted truth for Commissions Regall have for the most part issued forth upon these positive Lawes and where they have been unwarrantable they have been in all ages complained of in Parliament and rectified Hence I conceive it is apparent Ratio Why the generall or absolute Power of the Militia in Parliament a Parte ante viz. before the positive lawes touching the Militia Et nota that either a Parte ante a parte post this absolute or generall power in the Militia is vested in the Parliament but I rather am perswaded to conceive it was vested in Parliament a Parte ante viz even before any of these positive Lawes otherwise so great a Prerogative if it had been justly pertaining to the Regall Dignity would
words viz. this shall be the right of the Kings c. From this place of Scripture make you Tyranny the right of Kings for so some of you tender the words and so Ex consequenti the Ordinance of God is Mos Regis jus Regis Is it the right of Kings because the Act of Kings then Murther Adultery c. are the right of Kings and the Ordinance of God so God himselfe is made the Author of all wickednesse a most impious and detestable opinion Yea doth not the practice of the Kings of Israell manifest the same Did Ahab take away Naboths Vineyard as his right without any further proceedings Did he not by pretence and colour of Law take away his life and Vineyard Did he not suborne Witnesses against him This man blasphemeth God and the King was he not much perplexed troubled in minde at Naboths deniall All these things surely had not been if it had been lawfull for Ahab to have taken his Vineyard from him yea what saith God unto him for this Hast thou killed and also taken possession Is this Divine approbation Are either of these Acts allowed or not plainly reproved hast thou taken possession implyeth clearely that Ahab taking Naboths Vineyard was not Gods Ordinance or Law but the wicked abuse of Divine authority Further I conceive upon the Acts of David and Elisha mentioned in the Scriptures it is lawfull to resist Tiranny and abused authority yea that it is lawfull to oppose the Regall power Distinction of the regall person and the regall power by the law of this Realme though not the Regall Person but to leave these things to those that are learned in Theology we will search a little the Lawes of the Kingdom Doe not our Lawes make the same distinction betweene any power ilâ—egally raised by the King and his Person May not the one be lawfully resisted not the other Hath not the Law appointed the Militia of the Kingdome to suppresse any Ryots illegall Assemblies yea though commanded by the King I suppose that may be made a parent enough for put the case that numbers of people being Insidiatores viarum agrorum depopulatores gaine the Person of the King yea his protection under the great Seale Object shall not the Magistrates and Ministers of the Law execute the Law against these persons notwithstanding the King be present with them Sure they may and ought But peradventure you wil say This case is nothing to our purpose they that have now adheared to the King are good Subjects no Delinquents as your instance formerly imports Sol. I answer the reason of the Law is the same in both Cases yea they are delinquents in both Cases that take up Armes without lawfull authority and further they are Traitors also though they aide and assist the Kings person as you may perceive by the former discourse but I will exp laâ—e the Law a little further in this particular 2 E. 3. 8. 14. E. 3. ca. 14. There are two or three severall Statutes in the Raigne of E. 3. and of other Kings of England containing these words or to this effect That the Judges or the Kings Justices shall not delay to doe justice and right yea they are commanded so to doe even in the Kings Case notwithstanding the King by his great Seale or Privie Seale command the contrary But we then the case that the great Seale is sent to stay the course of Justice and the Meâ—seâ—gers thereof be numbers of armed men shall not the Justices oppose this illegall power Shall they not apprehend these persons as Rebels unto the State and Government if they shall attempt the execution of this regall command by force or violence nay The King by divers statutes disabled to raise any Armies of men or to come in any hostile manner to disturbe justicâ— I conceive they are subjâ—ct unto great and severe censure if not Capitall for appearing in Armes in disturbance of justice although they offer no force or violence at all but deliver their Message to the Court. And is it not apparent that these persons shall be empeached as offenders Conâ—ra coronam dignitatem Regis These men Traitors by law though the King present with them f â—n any hostile way they execute his illegal command or indeavour the same notwithstanding the Kings Seale yea if the King shall be present with them this will not aâ—ter the Case the Judges are to execute the â—aw in the Kings name against them and further to pronounce them Traitors if in forceable or hostile manner they shall endeavour to interrupt or hinder the power and authority of the Law here you see the distinction which the Law makes betwixt the Regall person and the regall power Nota. The Kings person not criminous by law and the reason The Kings person is subiect to no debility or imperfection in judgement of Law and therefore no crime or offence can be incident to his person witnesse the Attainder of King H. 7. before he was King resolved by all the Judges that Ipso facto by attaining the regall dignity all attainders of Treason or any other offence were purged and that there needed not any reversall of them in Law and this appeareth in the legall Annals of the said King you may plainly perceive the Kings person uncapable of crime by the Law of this Land his person is sacred and not to be touched with violence yea the Law medleth not at all with his person as being innocent of all crime Regall imputation as to any legall imputation but the power of the King Nota. in what condition it stands you may easily see Which Henry the 7. wisely fore-seeing procured that Act 11 H. 7. ca. 1. before mentioned to exempt the attendants of his person as also of his successors from impeachment knowing that by Law they might become offenders although they followed his person in the Warres and did him true and faithfull service for the defence of the King and the Land The true reason why this act of 11 H. 7. ca. 1. was made because his Title unto the Crowne as the times then were might not prove firme for if his Title by Marriage should have failed Nota. as even the state of Princes is subject unto humane casualty then his attendants in the Warres upon his Person should be in danger of judgement as being raised without lawfull authority so as by this Act if a Perkin Warbecke should attaine the regall dignity lawfully Lawfull viz. by consent of the Realme by authority of Parliament his Attendants in the Warres were by this Act free from impeachment if they declined not from their duty of Allegiance in this Statute mentioned which by Law had not been so if this Act had not made this speciall provision Now you may view plainly the Kings Person and his Power distinguished also you may see in the exposition of this Statute formerly mentioned the same
and justice these illegall Commands notwithstanding Doth not the King arme the Papists contrary expresly to Law yea by Commissions under seale to fight against his People against his Parliament when as by 3 Jacobi ca. 5. they are to be disarmed and to beare no Armes within this Kingdome and although the King License them nay 3 Jac. ca. 5. not to be dispensed withall Command them to take up Armes as the case now is that will not aide them since the statute is for security of our Religion and our Lawes against the enemies thereof the King cannot dispence with it For the other particular That the King hath raised Armies of men to execute these illegall commands and that the Judges of the Law and of the high Court of Parliament have according to their duties upon these Statutes endeavoured these illegall forces it is plaine enough Now what say you unto these things yee that beleeve in errour and falshood Are we still rebels and traitors in your judicious opinions Fight we for the Lawes and for the maintenance of them and are not one of the actions amongst many which might here be remembred justifiable and yet are you the good Subjects and we the desperate Rebells What if you shall say We are no men that are compelled to take up Armes we serve the King voluntarily we are none of the illegall Commission of Array I answer Incidit in Scyllam qui vult vitare Charibdem you fly from one extreame to another Traitors wiâ—hin 11. H. 7. ca. 1. though attending the Kings person in the Warres voluntarily if you decline from the duty of Allegiance as it is plaine you doe from one defence illegall to another are you not punishable to goe or ride armed by Statutes formerly mentioned without any evill intentions appearing how much more then when you goe about to violate and transgresse the Lawes Your voluntary act here makes the offence the greater as for the exception of the King and his Servants in his presence mentioned in these Lawes that is nothing it will nor helpe you at all for these Lawes as I have formerly spoken intend only his servants meniall and for preservation of the Peace likewise what is this paucity of men to Armies numerous Here is no refuge for you in these Statutes we are come to Nurcules Pillars to a Ne plus ultra with our opposites we are come to so straight a passage that there is no declining either to the right hand or to the left for I thinke we have searched all the corners of errour I will pursue you no further I wish you may at length turne into the wayes of truth least that God open the mouth of the dumbe Creature to reprove the folly and madnesse since the voice of the Law moveth you not at all Hence it is apparent that the Law as supreme hath invested both King and people with that power which they have by Nationall pact and agreement The law useth a power coersive as to the Kings possessions yea is to any power illegall raised by him and therefore if transgressed they are liable unto judgement as you see it cleare in matters touching the Kings possessions though not his person and if the Law come so neare the person of the King in point of coertion as his Lands and Estate making them Subject to the Decrees and Edicts of the Law pronounced in the Courts of Justice then common reason teacheth you that the Law hath a compulsary power over all illegall forces raised by the King for the Revenues and Lands of the Crown are more necessary and incident unto the regall Dignity and are nearer conjoyned unto it in point of defence maintenance and security then any power not warranted by Law Witnesse this Case that the Lands and Revenues of the Crowne come they by discent or purchase goe to the next successour to the Crowne contrary to the rules of Law in the Subjects Case an instance of this the discent of the Crown from Ed. the 6. to Queen Mary resolved by all the Judges that the Lands of the Crowne descended to the said Queene though but of the halfe bloud to King Edward Halfe bloud hinder nâ—â— discent of the Crowne yea that the Jewels of the Crowne and personall Estate vested in the said Queene and the reason of the Law is the same before mentioned for defence maintenance and security of the Regall Dignity or Person but any illegall power raised by the King dyeth with his Person it can neither discend neither can it be disposed of by the King it hath no affinity as I may so say nor any relation to his Person yea the Law taketh no notice of it at all but with an eye of Justice so that it is manifest the Law useth a coercive power as to the Kings possessions yea as to any Armies of men or forces raised by the King without legall authority Come we then to his Person see the wisdome of the Law there also it useth no coersive power because his Person by the Divine Law is Sacred as also it is needlesse for the Law to use a compulsary power over the Kings Person seeing that his Lands and Possessions yea any illegall power raised by him are subject to the Censure of the Law What formidable thing is his Person if you take away any power from him but what is warranted by Law No need of coertion as to the Regall Person Nota. What need of coertion over his Person I speake not this to diminish the just and due rights and greatnesse of the King for the Majesty and greatnesse with which the Law hath incompassed him is in truth Majesty Et regia celsitudo illegall Magnificence makes him but a poore and weake Prince despicable even in the eyes of his People Ejus potestas as Bracton saith est juris non injuriae But to draw to a conclusion inferiour Courts of Justice have their authority to suppresse any force raised by the King Argum entu à mineri ad majuâ— if not allowed by Law as it appeareth in this Treatise that these Armies of men by the King Commanded are in no wise legall What shall we then say Shall not the high Court of Parliament have the same authority which inferiour Courts Hand-maids unto it even in time of Peace have used and exercised I am ashamed of this grosse ignorance Now you that have many tergiversations and shifts to defend errour what say you unto this declare unto the world your Cause and stay these streames of bloud amongst your Christian Brethren Publish to this Nation the blindnesse and hardnesse of their hearts convince their judgements and understandings that truth may once more flourish amongst us But if not be for ever confounded in your selves close up your lips with perpetuall silence hereafter But you may say Object How comes it to passe that these particulars have not hitherto been discovered to the world
gracia admit their Allegation true that they were driven from the Service of the Parliament by Tumults and disorders which no man will the premisses considered suppose yet the objection is still frivolous who shall judge them innocent or transgressors of the Law shall not the Parliament yes verily as it is manifestly proved by the former discourse so that in the confutation of this we doe but like Sysiphi saxâ—m voluere labour in vaine with multiplicity of words to answer a meere false and nugatory suggestion Object There is yet further opposition and that is upon the Statute 6 H. 8. before named That the penalty of that Law is but loâ—se of their wages in case any of the Members of the said House of Commons shall depart from the Service of the House without leave of the House accordingly as that Act hath appointed and so with losse of their wages upon the point that Statute is satisfied Sol. 6 H. 8. More penall abrogateth no former Law To which I answer First that Statute extendeth not to the House of Peeres neither doth it take away the mulct or penalty of any former Law or Statute made in that behalfe but addeth a further punishment to the crime abrogateth no former Law so that Fine Imprisonment and Arbitrary Censure continue still in their force and to conclude this point they are by one Statute or the other or by both transgressors of the Law and liable to the judgement of that supreme Judicatory The proceedings of the Paâ—liament not subject to any debate extrajudiciall nor to any debaâ—e judiciall but of it selfe Another right of Parliament is the sole trans-action of all matters even unto Judgement or the Royall Assent the proceedings of this High Court being not subject to any extrajudiciall debate of censure of any other Court or Authority whatsoever but onely of it selfe and within it selfe having supreme Authority and Jurisdiction and whereas I spake before of their power of preparing and trans-acting all matters unto the Royall Assent The transacting matters unto the Royall Assent doth not intend the royall assent Arbitrary I doe not intend the royall assent Arbitrary for the royall assent cannot in Justice be denyed to any Bills preferred by the wisedome of Parliament for the publike good neither can any absolute Negative voice no Prerogative negative voyce of the King in this nature be any prerogative to him justly pertaining although by a Proclamation bearing date at Oxford printed not long since his Majesty claimeth an absolute negative voyce in Parliament as his undoubted right And likewise in one of his Declarations he justifieth it as his right for this reason Object That if he should onely have a negative voyce in Parliament in matters of Grace and Favour and not in matters of right and Justice then matters of grace and savour would soone be brought within the compasse of right and justice if the Parliament shâ—ll so declare them they would soone interest the Republike in them also and so exclude him from any negative voyce at all To answer this I need say no more but this Sol. Matters of right and Justiâ—e and of graâ—e and favour legally differenâ—ed That these are thoughts dishonourable of a Parliament to make the head and fountaine of Justice a receptory of such impure streames as these injury and injustice besides these matters are in Law plainely and perspicuously differenced in the one viz. matters of Right and Justice the whole Kingdome is concerned not so in the other as being private on particular in their nature as Bills of Naturalization Indenization Generall pardon how speciall grant of Franchises on priviledges to Corporations or private persons generall pardons or particular for though the word generall be here used yet it operates but especially it extends onely to particular persons without you will make all the Kingdome delinquents unto Justice it includes genera singulorum at the most Generall statutes not nationall or publike not singula generum And so in Law divers Statutes are called generall Statutes of which the Judges are bound by Law to take notice of without speciall pleading and yet the Publique or the whole Kingdome are not concerned in them For my part I shall need to say little herein because it hath been formerly handled by others Arbitrary Goverment grounded upon the negative voice also I take it to be a truth as cleare as the noone day that upon this Structure all Arbitrary Government is founded and maintained which position standeth not with a mixt and Politique Government as this of our Nation is but with a Monarchicall where the will and pleasure of the Prince is a Law as is known sufficiently to the learned In inferiour Courts no negative voiâ—e no voice at all But a little to examine this particular and let us looke into the proceedings of inferiour Courts Hath he there any negative voyce It appeareth he is so farre from having any negative voyce that he hath no Vote at all but the voyce of the Law pronounced by the mouthes of the dispensers thereof the reverend Judges is that which obligeth both King and peopâ—e neither can it be disanulled by any verball Command of the King or any other extrajudiciall way although under â—he Great Seale of England although the Judgement be against the King himselfe Nay further I conceive the Law exerciseth a coersive power over all persons without exception the King as well as the people surely then the King hath no voyce negative yea the compulsary proceedings were the same anciently though now dis-used that is to say Writs issued forth against the King as against the Subject I have seene good Authority in print that the forme of the Writ in the times of Henry the 1. or thereabouts as I remember was thus Precipe â—enrico Regi c. the power of the Law was here supreme but of late times it is now by way of Petition if the Suit be against the Kings Servants or incumbent as in a Quare impedit or the like if judgement be once given as it is usuall the Kings right is bound and you see withall it is by Writ in that Case now if Judgement be given Judgement against the King by the posiâ—ive lawes and with all compulsary surely even at this day the Judgement is not illusory for every Judgement in its nature is an Act compulsary Et judicium rediliâ—us in invitum as the Lawyers say for execution may be demanded upon this Judgement and cannot in Justice be denyed though against the King These things thus premised I doe reiterate my former question where is now the Kings negative voyce surely in inferiour Courts he hath no voyce at all come we then to the right Court of Parliament Hath he it there without doubt he hath it not It is an Opinion exployded by all good meâ— unsound and rotten at the root if we but open it The
debate or censure but a retarding of Justice If Judgement be given against the King he cannot examine this iudgement in an extrajudiciall way before himselfe but it must he subject to censure or debate in a legall way by Writ of Errour or the like An offence committed in the presence of a Court of Justice great and more capitall then in the presence of the King I need say no more for the proofe of this I will present you with the great Majesty that doth attend the administration of Justice and that is this An Offence committed in the presence of a Court of Justice is a greater Crime and more Capitall then in the presence of the King killing the Chancellor or Judge of either Bench doing his office is High Treason by the expresse words of 25. E. 3. not so if from the Bench though in presence of the King striking any man in Westminster Hall in presence of the Courts of Justice is the losse of a mans right hand and his goods and chattels not so in the Pallace or presence of the King unlesse blood shed ensue upon it and that is specially by Statute not by common Law but because alâ— have touched upon this before I will returne to the discourse intended It is manifest that the Law is the square and rule by which both King and people are directed and regulated in inferiour Courts What shall we then say to the high Court of Parliament in comparison of which all other Courts are but Tanquam viburna cupresso like shrubs to the lofty Cypresse or Cedar from whose fulnesse and abundance all other Courts receive even their power and authority There is an enemy at hand Object a strong objection and that is that this is no Parliament they have no plenitude of power without the King and the rest of the Lords and Commons now absent and by this they thinke to invalide all that hath been formerly spoken To which I answer Sol. That first the Parliament must he admitted to be a Court of Justice without the Kings Personall presence his legall presence being inseparable from this Court like as from all other his Courts of Justice and the contrary I suppose no man that is rationall will affirme Further I conceive in inferiour Courts his personall presence is against Law in point of Judgement in any matter between the King and his people for then the King should be Judge in his owne Cause contrary to the rule of Law Ministeriall or judiciall Acts not incident to the Regall dignity which saith That the Kings cannot doe any Act ministeriall to himselfe aâ— to take a Recogniâ—â—nce pro securitate paâ—is or the like much lord doe any Act judiciall betwixt himselfe and his people yea not onely so but he might fit in one Court and reverse a Judgement given against himselfe in another Court which how injurious this same would be unto the subject how dishonounourable and scandalous to the Court of Justice I suppose the weakest capacity doth apprehend Therefore the wisedomes of the 〈◊〉 hath appointed the sage and learned men being sworne to administer Justice indifferently betwixt the King and his people Court of B. Le R. B. C. Courts of Justice time out of minde and Magna Cart. ca. to did not â—reate and constitute the Court of C. B it did only settle it in Locâ— câ—â—tâ— No Courts of Justice at the first in the subject â—s now but all dispensation of Justice in the Crown viz. by the Kings ministery And the Opinion of Fineaux chiefe Justice in the time of King Henry the 7 That all administration of Justice into at first in the Crowne is to be understâ—â—d with this distinction it was not in that Regall period aâ— to the dispensation of it but it was in the regall Ministers or the Judges and so might be said to be in the Crowne according to the rule of Law Qui â—er alium facit per seipsant fadere videniâ— If so in inferiour Courts the same law â—â—â—â—â—â—ed sway in that high Court of Parliament also the practice and course of that Court sheweth plainely that they are a Câ—â—rt of Justice without the personall â—reâ—eâ—ce of the King Witnesse their reverâ—â—â—â— erroâ—ious judgements given in inferiour â—â—â—rt â—aâ—â—ing illegall Parents Monopolies granted by the King and many other might here be remembred I have heard it formerly objected that the House of Commons could not take a Recognizance Pro securitate pacis of themselves but it was alwaies transmitted to the Lords therefore this House was no Court of Justice for this is incident to every Court of Justice that is of Record yea a Commissioner of Oier and Terminer may take a Recognizans as it seemeth and for proofe the Case in the 1 H. the 7.19 20. is urged for there it is expresly said That the transcript of a Writ of Error upon an erronious Judgement in the Kings Bench shall be brought into the House of Peeres Et per Dominos tantum non per communitatem assignabitur seneschallus qui cum Dominis spiritualibus temporalibus per concilium Justiciar procedet ad errorem corrigendum Hence it seemeth that the House of Commons of it selfe cannot examine any Judgement in inferiour Courts and therefore should seeme to be no distinct Court of Justice of it selfe As also that the House of Commons considered in relation to that joynt power of Judicature that it hath with the House of Lords cannot take a Recognizans as is before objected for so it may seeme to be implyed by this Case I answer Sol. because the weight of this objection seemeth great that this Case may be admitted for Law and yet the power of that High Court of the House of Commons no whit diminished for this Case must be intended of their joynt and entire power of Judicature Coâ—rts of Justice have no immediate cognizance of each others proâ—eedings but they must be certified hereof and that in a legall way Certificate implies no immediate cognizans for otherwise the House of Lords could take no immediate cognizance or knowledge of the proceedings of the House of Commons nor è converso the House of Commons of the proceedings of the House of Peeres but their proceedings ought to be legally certified and by the words in this Record you may see it was done in relation to that joynt power for the words are Per Dominos tantum non per communitatem c. Here the Commonalty must plainely be intended as member or part of that High Court or otherwise the words were meerely nugatory for what need this restriction if the House of Commons were not conjoyned with the Lords in entercourse of Justice but were a distinct Court and severall from the House of Peeres it were as much as if the Kings Beanch should be restrained from having any immediate Jurisdiction or Cognizans in matters pertaining to the Common Pleas a thing ridiculous and superfluous seeing by
not grounded alwaies upon the positive Laws but upon intervenient accidents arising upon materiall circumstances of time place or other emergent causes which Orders are held by the Sages of the Law agreeable unto equity and Justice although no expresse Law to warrant the same In Chancery many crosse Orders the one to the other in a cause there depending yea almost seeming contradictory yet in Law and conscience justifiable and he that shall disobey those Orders is accounted a rebell unto the Law the King and his royall Government Jurisdiction of Courts title Parliament as appeareth by the Writ of Rebellion usually in those cases issuing and Sir Edward Coke affirmeth this power of Ordinance antiently pertaining to this high Court of Parliament And I know not but they may proceed to definitive Judgement in Causes notwithstanding any thing that hath been formerly spoken The Power of Parliament to proceed unto finall Judgement in case of wilfull absence of any the Judges of this Court paâ—alleld with this power in inferiour Court The Court full in Judgement of the law without those Judges which are wilfully absent if any Members of the Houses who are by Law Judges of this high Court shall refuse to discharge the trust committed unto them as the case now is and wilfully by absence or delinquency make themselves uncapable and unworthy of that great service for then I conceive it cleere that the Court is full in Judgement of Law without them and under favour there is no Law in point but the remaining Judges may proceed by the same authority For to examine a little the course of inferiour Courts of Law if any one or two of the Judges of the Kings Bench or Common Pleas shall obstinately recede from that Court and deny his attendance there for the publike shall not the residue of the Judges transact all matters there depending Certainely they may and further they ought so to doe And although for conveniency or conformity or to the end the Judgement may be the more unquestionable being confirmed by the greater number the weighty matters are agitated and determined in Plena curia for the most part yet I take it cleere in case of absence especially wilfull or obstinate the remaining Court may debate and finally sentence all matters incident to their jurisdiction Indeed in some particular cases the chiefe Justice or Judge hath formerly had the sole power as concerning Writs of Errour viz. that the warrant for the issuing out the Writ of Errour to the Chancery ought to be under the Teste of the chiefe Justice of the Kings Bench No judiciall but ministeriall acts by law transacted solely by any one Judge in inferiour Courts vid. Supâ—a but that Case or any of the like nature I conceive are only ministeriall but if a Writ be once returned in Court and so the Cause there depending no doubt the remaining Judges may judicially heare and determine Now if so in these lower Courts we cannot dis-affirme the same in this eminent Tribunall the Parliament the Court being the moddell and patterne of all other Courts the Gnomon that points out the course of the Sunne the course of Justice and equity to all the other Courts there being no brightnesse or lustre of Justice in inferiour Courts but resides more fully and more aboundantly in that high Court of Parliament So that I conclude the Parliament may make Ordinances Orders give Judgement and Sentence definitively in all matters whatsoever without the Kings personall presence or any of the Members of either Houses their absence being such as is formerly declared and that upon the reason of Law in these rivâ—lets of Justice their latitude of power and the superlative authority considered in themselves and in their course of prâ—ceedings being not so much as intended to be here mentioned but onely by way of comparison or resemblance of the Law in inferiour Courts to make things more conspicuous not any waies to dishonour this Court as if it should emendicare justitiam begge or borrow the rules of Justice from inferiour Courts who arâ— but tanquam ancâ—lle like handmaids to this Lady and Queene of Justice as also it is done ea intentione to informe vulgar capacities per notiora nobis by things even subject unto sence to the end they might if possible be satisfied I should now enter into the proofe of the violation of this priviledge almost forgotten by this digression namely the transacting of matters belonging unto this high Court by the new erect and pretended Parliament at Oxford a greater violation in this particular then if any inferiour Court of Justice in this Kingdome had assumed or arrogated this authority The Assembly at Oxford unwarrantable by law even in their Session much more in their proceedings because this Assembly at Oxford have not so much as any colour of Law to warrant even their Session much lesse their proceedings the matters there trans-acted and adjudged in derogation and dishonour of this high Court being so many and numerous as also the extrajudiciall arraignement of the Votes and proceedings of this Parliament but I thinke it is manifest to all the world and no man ignorant thereof The many and weighty Remonstrances Declarations and Ordinances of this high Court decâ—ared and pronounced null and void at Oxford and elsewhere by Declarations of his Majesty extrajudicially framed Much might be spoken herein with much sorrow and peradventure not without offence therefore I will desist and close up my meditations on this particular protesting nothing but the delivery of the truth with meekenesse and moderation and my soule is full of heavinesse and lamentation that ever so unhappy an occasion should be ministred â—eseeching God if it may stand with his Will and Pleasure to heale all our wounds and to reconcile all differences with peace There is another right of Parliament yet behinde which requires me not to be silent as being of all one of the chiefest by breach of which the Sword is gone through our Land Armies of men have been raised whereby not only violation of Lawes Rights and Justice but even the destruction of all is at hand unlesse God in his mercy prevent it In briefe we have seene great forces raised and maintained by the King without any Law or authority to warrant the same being as I suppose misinformed and unadvised herein The Priviledge or right of Parliament it being directly against the right and power of Parliament which is this That no Armies of men can he raised by the King or any subordinate authority under him but as the positive Law hath prescribed unlesse by consent of Parliament And here peradventure it will be expected I should speake of the Militia of the Kingdome The Milita absolute or generall Vid. infra as being a matter at this time of the highest concernement but I will referre it to a distinct debate by it selfe as you shall perceive hereafter in this discourse
power and authority by Law vested in the King in derogation of his high Court of Parliament as makes the rules of Law and Justice meerely Arbitrary as in those particulars afore specified we must needs grant and yet in inferiour Courts the same rules in Arbitrary Government no where warranted or allowed but contrary wise their proceedings obliging both King and people to a mutuall observance by a legall power and authority to that purpose setled in them This were repugnant even to sence Now to summe up this point if the King cannot leavie or maintaine any Forces by Sea or Land as is formerly proved though for defence of the Realme or his Person upon his owne Judgement or apprehension of danger What shall we then say to this effusion of bloud the Authors and fomenters of this intestine Warre shall they be protected Surely at some mens hands this bloud will be required and though they may here escape yet righteous judgement must be expected hereafter Papists inabled nay compelled to beare Armes contrary to the lawes viz. 3. Jacobi 5. Also this matter seemeth more to be aggravated since in this late great and numerous Army of the King those persons who are prohibited by Law to come within tenne miles of the Court disabled by Law to beare Armes within this Kingdome contrary to the Kings owne solemne Protestations made unto his Parliament are enabled nay commanded to beare Armes to the destruction of the Kings subjects I meane the Popish Party in this Kingdome whose doctrine and practises both to King and State in most execrable Treasons and impious Conspiracies hatefull both to God and man are sufficiently manifest to all the world and need not here to be remembred Now there being such a cloud of Witnesses as is afore specified Common Law Stat. judgement of this Parliament proving the Armies Illegall viz. the Common Law the Statute Law the Judgement of this Parliament in Master Hampdens Case the very same in Law and reason convincing any capacity in the certainty of this truth that these Armies now maintained by the King are not warranted by Law What shall I say more yea what shall we thinke of this Commission of Array Commission of Array destructive of Parliaments upheld by our opposites What is this likewise but a meere usurpation a plaine violation of the Lawes and what would follow if this doctrine should be admitted but a finall dissolution of Parliaments For what would they then serve for if Armies of men may contrary to the positive Lawes be raised without them They would be at the best but as the tyrannicall Bishop of Rome formerly boasted Puteus inexhaustus an ever springing Fountaine to satisfie the ambitious desires of the mighty with the riches and wealth of the people nay peradventure Aides Taxes and Impositions would be had at pleasure and the people by force compelled to slavish obedience as we have found by sad experience too dearely bought in a branch of these Dominions the unfortunate Kingdome of Ireland where the insolencie of the Souldiers was such yea even in the times of Peace in the time of the late Earle of Strafford that the Lawes were sleighted and trodden under foot and the Paper Decrees of the Castle Chamber put in execution by these Agents in Armes forcing the poore subject to obey whatsoever was in this wicked and illegall manner commanded what difference now betwixt the Turkish Government and this new devised Monarchy of these Dreamers the lives and estates of all men being subjugated to misery and inevitable destruction but God in his good time discover these evill instruments and bring them to Justice who labour to involue so great a Prince into inextricable errour and calamity I promised moderation therefore I will say no more but will divert my meditations to the period of this discourse as thinking I have satisfied mine owne conscience it not others in so large a debate hereof Object There is one great Objection made by the adverse part which if answered this particular is satisfied And that is By what authority are the forces of the Parliament raised Seeme they not as illegall as unwarrantable Sol. To which I answer That the Parliament themselves in their Declarations which I have seene make it onely on their part defensive there being an Army intended against them full foure yeares since the Army raised against the Scots and afterwards for this purpose implyed to awe this Parliament and to force them to consent unto such Articles framed by evill persons touching the Government of this Kingdome which appeares by the Depositions of divers persons of note and quality annexed to a Remonstrance of Parliament 19. Maii 1642. which sure was long before an Army raised by the Parliament or thought upon the King being then present at Parliament and I will not say it was by his privity or knowledge Onely thus much I will say That this Act was alone sufficient to breed jealousies and feares in the Parliament and to provide further for their defence and security Afterwards this was increased by the Kings comming to the House of Commons in that unusuall manner to demand the Members affrighting the Assembly there present who upon request were denyed a Guard Afterwards his Majesty at Yorke at Nottingham had a considerable Army of men to the number of foure or five thousand as I have credibly heard by those that were then there present and all this while no Army of the Parliament appearing that I did heare of only speeches to that purpose Now upon all these proceedings the Parliament for their owne defence the Kings Royall Person and Authority the defence of the rights and liberties of the Subject raised an Army under the command of his Excellency Rob. Earle of Essex which whether or no defensive or justly done I leave it to the world to judge upon that which hath been formerly spoken But to make a more full answer and to square my course in these Treaties by the positive Lawes to stop the mouthes of clamorous people The raising of Forces by the Parliament justified as a Court of Justice The Parliament and either of the Houses must be admitted to have supreme power of Judicature without the Kings Personall presence as the Rolls and judiciall proceedings thereof sufficiently manifest as is formerly spoken and if so then they have power to Summon Censure and judge all Delinquents yea force them to submit to the Justice of that high Court upon contempt by enjoyning Posse commitatus yea Posse Regni to execute their Commands against all disobedient persons unto the Justice and Government of this Kingdome and this meerely by the Law of inferiour Courts as I have formerly remembred therefore this shall be sufficient Object Legislative power just There is one thing that scruples the mindes of Malignants much and that is That the Parliament have hitherto proceeded by a meere legislative power and not by the positive Lawes and
had utterly abrogated the first Statute Many Cases might likewise be remembred to prove this but in our Statute there are no words but affirmative only therefore no question upon this rule in Law so in the end you see these two Statutes are not the one contrary to the other Also there is another reason which makes for us and that is that 9 E. 2. is onely affirmative as you have heard and by implication must nullifie 28 E. 1. and that cannot be as I conceive It is a high and great right of the Subjects this of the Militia it is one of the chiefest flowers of the Garland of their Liberties it cannot be divested out of the Kingdome but by expresse words The Kingdoms right cannot passe by implication it is like unto Jus regale or a Royalty of the Crowne which cannot passe by implication as the Sages of the Law know for it is the Kingdomes case and no particular Subjects case and right One Act repealeth not anâ—ther by wordâ— generall and implicite and therefore from all cases in Law that can be opposed differing 10 R. 2. ca. 5. doth not take away 13 E. 1. commonly called the Statute of Donis conditionalibus because the words are generall and implicite Statutes made by the venerable presence of three hundred men or more equall to the Senate of Rome in wisedome shall not be disannulled by such ambiguous construâ—â—ions but I will leave this to the judgement of the learned Fâ—rther if the disposition of this branch of the Militia were the Kings Right by this Statute before mentioned If the Militia by the positive lawes limited were vested in the King yet he is not the sole proprietor but intrusted with it Sub modo aâ— the positive law hath appointed yet he it not the sole proprâ—etor thereof but intrusted Sub modo to dispose of it as the Law hath appointed and you see in what manner the Law hath setled it by this former discourse The King cannot command the Militia or raise an Army either by Sea or Land without his high Court of Parliament approve of the same they cannot be forced out of their Shires but in case of suddaine comming into this Land of strange enemies by the power of the King or by his legall authority But to lay aside all other weapon of defence and argument Argument by admittance and to close with the adverse part upon this very Law of 9 E. 2. and the sence of Law upon this Act and admitting 9 E. 2. to nullifie 28. E. 1. which yet we doe nor grant for a positive truth by admittance of it Argumenti gratia onely we will debate this Statute of 9 E. 2. and open it plainely to every capacity whereby it shall appeare here is no harbour for the Militia Royall it will prove but Statio malificae carinis an unsafe refuge The words of the Statute which they sâ—rmise vest the Militia in the King are these That the Sheriffes shall be chosen in every County by the Chancellour Treasurer Barons of the Exchequer or chiefe Baron as another Statute hath it or by the Justices by one Statute and by another Statute by the chiefe Justices of one Bench and of the other Parum differunt que re concordant But to our purpose In whom is the Militia setled by this Statute It is apparent not in the King but in the Sheriffe elected by the Judges who are sworne as well to the Kingdome and People as to the King By 9 E. 2. a hare nomination no right of the Militia setled in any as appeareth by their Oath But yet further In what right hath the Sheriffe the Militia of the County I answer Here is no right of the Militia vested in any by this Statute onely a bare nomination then the right and power of the Militia rests where it did before by Law and that if the very letter or sence of this Statute be urged the right of the Militia is not in the King Object Why then a further question ariseth upon this Act in whom is the right of the Militia or in whom was it before this Statute since this Law giveth no right to any I answer Sol. The Sheriffe had the possession of the Militia The Sheriffe of the Militia possessour by 9 E. 2. the law and Courts of justice Cestuy que use the Law was Cestuy que use that is to say had the right and interest of the same the Sheriffe had the disposition of it for the use benefit end behoofe of the Law for that you shall see plaine enough for the words of the Law are to this purpose That the Sheriffe is to dispose of the Militia to preserve the peace of the County to suppresse all Riots Insurrections in disturbance of the peace to execute the Judgements and Injunctions of the Law in the Courts of Justice What is the peace of the County but the Law of the County or rather the fruit and effect of the Law The peace of the County the law of the County or rather the fruit and effect of the law Due observance and execution of the Law is the preservation of the Peace whereas on the contrary violation of the Lawes brings Warres and Division with it Not a word here but that the Law is Vsu fructuarius of the Militia hath the right and power of it the Sheriffe the disposition as Minister and Servant of the Law If it be objected that the Law saith That to preserve the Kings Peace the Sheriffe hath the disposition of the Militia The Kings peace the Kings lawes or the fruit and effect of the law That is true and yet it is nothing to prove the right of the Militia in the King for the Kings Peace is meant or the fruit and effect of the Lawes by which Lawes the King injoyeth his Peace as well as the Subject so that still you doe but labour in vaine The Law still hath the right of the Militia also the Courts of Justice especially the high Court of Parliament where the law resteth as in the Center Vsage Regall of no force in the Militia Vi. infra For Usage and the Kings disposition of the Militia De facto though it were since the Conquest that is not materiall as you shall see presently in the debate concerning the great Offices of the Kingdome Vbi eadem ratio idem jus The Militia of the Navie As touching the Navy Royall the Forts and Magazines it is apparent that either they are included as parcell of the Militia of the Kingdome or are as appendants thereunto and therefore as to them Nihil erit jam dictum quod non dictum sit prius But yet to say something of them though but repitition The Navie that is to say the Ships are things in their nature transitory in Law they may have existence or not Diversis temporibus as occasion requireth and so in the eye of the
5. H. 4. The Commissioners putting in execution the Statute of Winchester the ancient and only knowne Assize No doâ—bt the Military Tenure by common law was compulsary viz. by Distâ—esse or the like to services incident by law for Armes compulsary are saved harmelesse and inpemnified by this Law notwithstanding their former large and illegall Commissions and that they shall execute so much of their Commissions as was warranted by this Statute of Winchester and no more and for not executing the other illegall clauses in their Commissions at the making of this Act issued forth the Commissioners are saved harmelesse and indemnified by this Act so that you see 5. H. 4. depends upon Winchester notwithstanding the former objection Eradicate a Plant you destroy the branch so the repeale of the Statute of Winchester repeales 5. H. 4. as necessarily depending upon it Out of their shiâ—es viz. unlesse in case of suddaine invasion The conclusion of all is this The ancient Common Law formerly recited is now in force none could be forced to finde Armes or serve in person but those that were thereunto bound by their Tenures of Contracts nor those any further or otherwise that is to say out of their Shires or with proportions of Armes greater then they were bound unto by their Tenures or Contracts yea it appeares that by the Common Law Armes were proportioned he which held by a Knights Fee was to finde a man in Armes and so proportionally De coeteris and therefore Winchester did but affirme the Common Law in this or further enâ—arge it as also make the proportions of Armes more penall and compulsary then before The statute of Winchester sets downe an Assize for land and goods the common law extended onely to lands and only to such lands as were bound thereunto by Tenure by this statute all lands are tyed to finde Armes proportionall but whether those that wee bound by Tenure were to be Assessed by the Act and so charged with a double proportion of Armes In The ancient Assize in this statute mentioned was surely some law antiquated or not in force or at least not compulsaâ—y therefore Winchester revives it the common aw for Tenuures is now in force onely Now Winchester being repealed there is neither Common Law nor Statute to force any man to the finding of Armes but onely those that are bound unto it by their Tenures or Contracts and that thus the Law is taken upon all these Statutes concerning finding of Armes appeares by Sir Ed. Coâ—e in the seconâ— part of his Instit f. 528. in his Exposition of the Statutes of confirmations Chartarum libertatum for he concludes the Law to be that no man shall be charged to Arme himselfe or others save such as hold by such service of the King or other Lords whereby they are bound to it unlesse it be by consent of Parliament and further saith that that was the Common Law which these Statutes did affirme There is one Objection more Object and it is strangely and much insisted upon by his Majesty in one of his Declarations for he maintenance of his Commission of Array and for the nullifying of all these positive Lawes formerly spoken of and that is upon a Statute in force the Statute of 11. H. 7. ca 1. 11. H. 7. ca. 1. a late Statute and subsequent to all these by which the service of the Subject in the Kings Warres both within the Kingdome and without is recited and the Subject charged therewith according to their duty of Allegiance I answer Sol. this opened will likewise prove nothing 't is but the preamble of the Act and all the doubt will rest upon these words formerly mentioned The Subjects attendance on the King in his Warres either within the Kingdome or without may plainely be intended according to the positive Lawes formerly remembred The words of the preamb e. for some especially by their Tenures were bound to attend in forreine service as where their Tenures were to attend in Scotiam Pictaviam c. Commandment of the King what it intends The Commandement of the King here mentioned may either be intended according to their Tenures for forreine service or otherwise the Commandment may be taken for his legall command not his personall and that you have heard what it is the command of his high Court of Parliament Nota. and so what question of the Impressing men for forreigne service but the Regall command according to their speciall Tenures is that which in my judgement is full and satisfactory According to the duty of their Allegiaâ—â—e explained Alleg viz. naturall legall locall Come we then to those words according to the duty of their Allegiance the Subjects Allegiance is naturall locall and legall but the naturall and legall Allegiance is here intended and what is the legall Allegiance you shall see likewise is the naturall therefore the legall Allegiance opened ends all Legall Allegiance what it is viz. the positive Militia The legall Allegiance is that perâ—onall service which the Subject oweth unto his Soveraigne by the municipall Lawes of this Kingdom and that you have heard at large formerly what it is I need not use repitition Legall Allegance and naturall agree Now the naturall Allegiance and legall differ not but rather the legall Allegiance is explanatory of the naturall for the Law saith That the Subject shall serve the King in his Warres Salvo contenemento viz. Secundum starum facultates a respect being had to every mans state property faculty or ability and to that purpose was the Common Law and the Statute of Winchester limiting the Assize of Armes viz. Secundum starum faculâ—ates what saith the naturall Allegiance otherwise but that every man shall attend the Kings Persâ—n in his Warres according to his state and ability if other construction should be made the Law naturall should be unjust and without care and preservation of the Common Wealth if the imposâ—tion of this charge were not â—â—brâ—o respectu to every mans property state and faculty Thus you see what is meant by the duty of their Allegiance within this Statute Legalis ligeantia aâ—pâ—ex peradventure it may be urged there is another branch of the legall Allegiance also viz. when men be imprest for the service of the King by the authority of the high Court of Parliament without aâ—y such speciall relation to their Tenures or Estates or to the positive Lawes I grant This Allegâ—ance is likewise â—abito respestu ad statum c. agreeing with the otâ—er legall as also with the naturall for otherwise Acts of â—arliament should be unjust One branch only of the legall Allegiance intended by 1. H. 7. ca. 1. viz. the Allegiance due by the positive law this is the legall Allegiance likewise but this Allegiance is not intended in the Act of 11 H. 7. before specified for that Allegiance must â—ecessarily be meant tâ—e Allegiance due by the
that they instance in the Case of the late Earle of Strafford Sol. To which I answer first That if they did so it were but just according to the Supreme power of that Court but to descend to our Adversaries and to search all the Foxes Holes that they may have no refuge I take it cleere that in the Case of the late Earle of Strafford they did proceed against him but according to the positive Lawes in respect of the Crime The Common law of this Realme is in force in Ireland and all statutes enacted before 10. H. 7. in this Realme are in force in Ireland vid. Poyninâ—â— ley though his triall might seeme somewhat differing for surely either by the Common Law or by the Statute of 25. E. 3. or by the Statute of 28. H. 6. as I remember a Statute made and enacted in the Kingdome of Ireland he was justly attainted of High Treason as for the Act of Attainder and the Proviso thereof that it should be no president for the future the meaning whereof I will open unto you hereafter certainely it was not for want of Crime or Delinquency as ignorant people and disaffected falsly say For a little to debate this particular in mine owne apprehension and no further because I have not lately seene this Act. Act vid. the act â—f Attainder of of the Earle of Strafford He was at first by Bill in the House of Commons Voted a Traitor which Bill was transmitted to the Lords for their concurrence therein but the Lords being doubtfull De jure not De facto as they were at the first in the Case of the late Prelate of Canterbury to wit whether he were guilty of high Treason by the Positive Lawes or no therefore for their satisfaction he was tryed in Westminster Hall per pares by his Peeres upon their Honour according to the course of the positive Lawes a L. Steward being appointed found guilty there of high Treason Upon these proceedings was the Act of Attainder drawne up wherein the Clause afore mentioned was inserted viz. That this Act of Attainder should be no president for the future which I conceive must be intended either in respect of the Triall or Judgement it selfe The Act or Judgement includes the triall or proceedings in law and although the clause should mention the Act and not the proceedings thereupon it is all one as if it had in sence of Law for the proceedings and the triall are included and involved in the Judgement and therefore the Act of Attainder or Judgement comprehends all depending thereupon Reverse a Judgement at Law you reverse all the proceedings without any mention of them therefore they are included Now the triall was unusuall for in the House of Commons he was tried in a Parliamentary way in the House of Peeres by the Common Law in Westminster Hall Further this Clause might have a retrospect unto the Act or Judgement for the Judgement was unusuall at least not necessary in this respect he was by the positive Lawes proceeded against Judgement might have been given against him by the Parliament which Judgement should have been entred into the Rolls of Parliament Vnto a Judgement by Statute all men are privie according to the course of other Courts of Justice but to be attainted by Act this was more full and satisfactory both to the offender and to others in this respect that all men are privie and consenting unto this Judgement either personally or representatively and therefore all men must rest satisfied but to returne to our former Discourse and not to detaine you any longer with mine owne fancy as some may say This I will confidently averre he was by the Law positive adjudged a Traitor for leavying warre in the Kingdome of Jreland His person here subject for offending against a positive law viz. 25. E. 3. as also for offending against a Statute there made viz. 2â— H. 6. and his possessions in both Kingdomes cleare liable by both statutes The Act of 25. E. 3. is in force in Ireland either by vertue of Poynings law or else by the ancient common law of England which is in force in Ireland 25 E. 3. is b t of the ancient common law declaratory Câ—m â—lees of the Crowne Tit. Treason Treason against the law against the very Law it selfe for he that goeth about to alter the Law or Governement or to oppose it in any hostile or compulsary way as it was proved manifestly he did is a Traitor within 25. E. 3. and leavieth warre against our Soveraigne Lord the King as the words of that Statute are for leavying warre against the Person of the King is included in the first branch of the Act of compassing or imagining the Kings death as the learned know therefore this Clause of leavying warre against the King if taken in the literall sence were not so necessary but because of some great authority in this particular which I have seene I will conclude that if taken in the sence against the the Person of the King yet it is also and most principally a leavying warre against the Lawes and Government a secret which ignorant people know not for they thinke no Treason can be but against the Person of the King now least any man being impeached of High Treason should claime the benefit of this Act which peradventure would prove inconvenient I conceive this clause for some of these reasons added unto this Act. But some will say That his ignorance of the offence Object and his good intentions to his Majesty and the State were a sufficient Apology the which he confirmed by his Speech unto the people at his death I answer If it were so admitted Sol. yet ignoruntia juris non excusat yea the meanest crime of the meanest person is not hereby extenuated in Law but this was a crime of an eminent person the highest offence in Law and of dangerous consequence All Courts of Justice have their Seales viz. C. B. Bleâ—oy this hath â—â—one but this Ergo. There are some Rights of Parliament yet behind as namely the attendance of the great Seale necessarily upon this Court their claime and disposition likewise of the Militia the Navy Forts and Magazins for the defence of the Kingdom as also of the great Offices of the Realme all these nor any of them being the Kings unboubted right Object as he claimeth them For to begin with the Militia which some may say hath been formerly debated in shewing his Majesties raising of Armies illegall and unwarrantable and therefore here it will be but repitition Sol. I answer if it were so yet this being a matter now controverted of so high consequence it should not seeme ungratefull Que repetita placent decies repetita placebunt but to dispossesse you of this fancy you shall finde it not so the discourse of it here you will finde in a larger notion though very briefe then before it was spoken of as
possession of any Castle or Fort. The Sheriffe hath his authority from the King viz. by Statute 9 E. 2. unto which the King hath assented to defend any Castle defencible with the Militia of the County therefore if the Sheriffe or any such like subordinate authority from the King hold a Castle defenceable it is in judgement and speech of Law the Kings possession of the same but of this sufficient For the great Offices The great Offices of the Kingdome the disposition of them did anciently belong unto the Parliament as their rights and that Master Lambard a learned Lawyer in his Archeion of the Courts of Justice testifieth whose words are these The great Offices anciently pertaining to the Parliament That the Keeper of the great Seale was wont to be elected by Authority of Parliament and he saith further That he had read that Ralph Nevill Bishop of Chichester being Chancellour to King H. 3. being Commanded refused to yeeld up his Seale unto the King when he required it affirming that as he had received it by the Counsell of the Realme so he would not without like warrant resigne it againe And in the daies of the same King it was told him by all his Lords spirituall and temporall That of ancient time the creation and disposition of the chiefe Justice the Chancellour and Treasurer belonged to the Parliament Thus farre Mr. Lambard Dr. Cowell also in his Booke called The Interpreter whom I nominate at this time as a Royalist in this yet he citeth a President in the time of King H. the 6. who directing his privie Seale to Richard Earle of Warwick thereby to discharge him of the Captaine-ship of Callis the Earle refused to obey and continued forth the said Office because he received it by Parliament and the inference of Cowell hereupon is false that either the King must be above his positive Lawes or else he is no absolute King for he is an absolute King though not above the Lawes for his Government were then meere Tyranny Vid. Dâ—vant f. 16. 6. also the Kings of this Nation are nor in that sence absolute Monarchies for this is a mixt Government partly Politicall partly Monarchicall as that worthy Knight Sir Thomas Smith in his Common Wealth of England affirmeth and this I have remembred before Further Sir Edward Coke in his Magna Charta f. 558 559. saith That anciently Offices either for the preservation of the Peace or execution of Justice because they concerned all the Subjects of the County were not disposed of by the King but by the Free-holders of the County chosen in every severall Shire by the Kings Writ now if it were so for the publke Offices of the County the same Law and reason telleth you that it must be so for the publike Offices of the Kingdome either it must rest in the people or their representative Body Object But it may be objected That Sir Edw. Coke saith in the samâ— place that the Statute before named of the 28 E. 1. is altered by 9 E. 2. and so this Office of the Sheriffe being a publikt Office for the preservation of the Peace and execution of Justice also is not in the Subject or their representative Body Sol. To which I answer shortly because it hath been formerly debated Altered not abrogated or â—ullified That Sir Ed. Coke is thus to be intended that it is altered partly as to the election of the Sheriffe in the Exchequer if the Judges pursue the same Statute and the Free holders of the County doe not elect before them and so that authority is good Law We must make such interpretation that every learned mans judgement may be honourably esteemed and be effectuall It likewise appeareth by the same Author that anciently the Conservators of the Peace or Justices of the Peace were chosen by the People and so are many Offices at this day the election of the Officers is by the Free-holders or people the Kings Writ issuing forth first for that purpose Vsage of no forcâ— against a statute or judiciall record Now what Law hath taken away those from the people or their representative Body Verily none that I know no act Judiciall or Record whereby the right of the Kingdome is expresly given away or if this did appeare No statute gives away the Subjects right expresly in the disposition of great Office or of the militia or if it should be granted that usage recorded in the Kings Case were sufficient yet in these particulars it will not give a right unto the King and if he hath time out of minde disposed of them yet this will not availe if by any matter of Record the right of the subject appeare as it doth by Statute Law before remembred and by legall authority Nota. then usage is invalid as the learned in the Lawes know The Act of 28 E. 1. settles the Militia in the subject as you have heard formerly here the right of the subject appeares the Forts Navie Castles and Magazines depend all upon the Militia either the absolute or generall power of the Militia or the Militia positive or regulated by the positive Lawes both which are by Law vested in the People or the representative Body the Parliament as you have heard formerly The great Offices of the Kingdome appeare by learned and legall authority afore mentioned in the Subject and their representative Body both in right and in disposition What shall I say more if this be not sufficient to make the Subjects right cleare in this particular Prescription of no force against â— statute Then although the King hath by usage almost gained a perpetuity in them yet this will not serve no prescription or use will be of force against a Statute or judiciall Record for that is proofe to the contrary as the Law saith And the Kings Case is all one with the Subjects in this Regall use is of no force against a Statute or judiciall Record for as the rule of Law is true Nullum tempus occurrit Regi prescription is not good against the King in many Cases so it is as true Nullum tempus occurrit legi no usâ—ge or prescription is of any effect either in the Kings Case or Subject against the Law appearing by Statute or judiciall Record and I hope no man will say but that the Rolls of Parliament are judiciall Records Vsage of no force against claimes and interruptions besides our legall Annals or Bookes Further if usage shauld be admitted yet here have been divers clamours and interruptions of Parliament yea dispositions by them of those great Offices and those other particulars and then necessarily usage is not of force as the Law saith for the Parliament claimes unto the great Offices of the Kingdome yea their disposition of them from time to time I have spoken of before as also of the Subjects disposition of the Militia Vsage gaines no inheritance or right of claime or
interruption or their representative Body for it cannot appeare that the King hath by disposition of them time out of minde gained any inheritance in them in the right as we say but that there have been Claimes and disturbances by the Subject or their representative Body and then usage necessarily is of no force Object Before I conclude this particular I will answer one Objection that happily may be made touching the Militia and that is this Pleas of the Crowne f. 9. that Sir Edw. Coke saith That no man can leavie Warre within the Realme without authority from the King for to him it onely belongeth Sol. I answer because the authority is great that his legall or politick capacity may be very well here intended Authority from the King intendâ— his legall or politick capacity not his personall or naturall and not his personall and so the authority of every Court of Justice is the Kings authority the words De mandato nostro in the Writ of Melius inquirendum upon a former Office defective are intended not the Kings Personall Command but his Command by Writ issuing out of a Court of Justice so the authority of the King is in this place meant his legall authority not his Personall which every Court of Justice specially upon Record is invested withall In a literall sence the Sheriffes aâ—thority is the Kings authority Also the subordinate authority of the Sheriffe as also of every Court of Justice is the Kings authority even in the literall sence for the Sheriffe and Judges of the Court of Justice are authorized by â—he Kings Letters Patents Also they that have their Authority by Acts of Parliament as the Sheriffe hath have their authority from the King No man c. purport thus much no man of hiâ— own private authority Legall authority the Kings authority for are not all Acts perfected and confirmed with the Royall assent So that these words before specified viz. no man c. purport plainly thus much No man of his owne private authority without legall authority which is the Kings imediate authority can leavie War within this Realme Nota. If you should make other construction you nullifie the positive Lawes and even the legal course of Justice and Government So that we may safely conclude I hope upon the premisses that the Subjects right and consequently of their representative Body to dispose of the Militia and of the great Offices of the Kingdome remaineth yet undoubted even at this day These things have been judiciously debated and at large by a learned gentleman very well knowne Note that all the statutes touching this high point of the Militia are warily and cautiously penned not one law that in expresse words or by any sound Collection or inferences settles it in the King personally those statutes that the King make use of and which mention tâ—e military service due unto the Regall Dignity are in generall termes and may very well be with relation to the positive lawes precedent as 11 H 7. ca. 1.5 H. 4. 1 E. 3. ca. 5. None of them can be intended of the generall or absolute power of the militia but of that part of the Militia that is by the positive lawes limited for if otherwise you must by such construction nullifie all the positive lawes proceedâ—ng Nota. Vid. ante therefore of this sufficient You that are now learned and wise be not seduced with errour pause a while and consider with moderation what is become of the Regall power viz. the Kings personall power such as you would have it in the Militia of this kingdome That which the King will not part withall no not for any time be it to his Wife or Children so neare and deare it is unto him and of so high consequence as he professeth There are but two branches of the Militia the one generall and more absolute the other speciall and limited by the positive Lawes as you have heard For the generall and more absolute power over the Militia it is apparent to be inherent of ancient right in the high Court of Parliament onely I thinke the premisses duly considered no rationall man will deny it for the other part of the Militia limited by the positive Lawes you have heard it is vested in the Kings Ministers the Judges and great Officers of Justice by the positive Lawes not in the King personally considered What is then become of the great Commission of Array which clearely claimeth and useth both these powers of the Militia What are Armies of men raised by these illegall meanes You have heard formerly in this discourse what they are I should be sorry to repeat it The supreme Moderator of all things will one day Judge these exorbitancies I will say no more Object There is one yet great Objection of those that are curious and hard to be satisfied it is somewhat darke and Enigmaticall to the ignorant and that is That Armes are taken up against the King by the Parliament they leavie War against his Person an Act in it selfe impious and by the Divine or Humane Law in no wise warranted Sol. To which I answer That this Allegation is false and untrue there is no force or violence offered or intended to be offered against the person of the King we conceive his person onely free from the Sword By the Divine law the regall person differenced from the regall power but if you take his person for his power raised by him coagmentative there we differ from you for by the Law Divine whether his person and power raised by him illegally be together confounded and not distinguished or whether Tyranny or abused Authority shall be said to be the Ordinance of God and so not to be disobeyed I will not meddle in the decision thereof though I take it cleare they shall not for goe to the very Etymology of the word Ordinance mentioned frequently in the Scriptures of God and so much insisted upon by the other part that it ought not to be resisted it is plaine it is derived Ab ordine from order wisedome and judgement the shadowes of the Divine essence which is an eternall Law of admirable wisedome even to it selfe and is the Primum mobile and originall of all Order and Law to the Creature Now in Tyranny and abused Authority there is nothing but folly and madnesse as I may so say the authours of disorder and confusion and surely if the Lawes of man be called Ordinances for this reason before mentioned What shall we thinke of the Law of God Whatsoever is by this Law appointed is wisedome and judgement in the abstract 1 Sam ca. 8. That place of Scripture which you wrest by mis-interpretation for the purposes warrants no such matter This shall be the manner of the Kings saith Samuel to the people They shall take your Sonnes and your Daughters they shall take your Fields your Vineyards and give them to their servants Render the
difference His power not so viz. his illegall power They may attend the Kings person in the Warres and yet Traitors by Law his Person secured his power not so And although the King pardoneth this Offence upon this Statute as it appeareth formerly he hath done yet surely this is not effectuall for he is disabled by Act of Parliament to take benefit of this act and therefore the King cannot inable him as upon 31. Vi. ante f. Eli. in case of simony if the King present the same person simonaically to the same Benefice and withall in his presentation there is a speciall Non obstante yet this will not availe Also I conceive Impeachment in the high Court of Parliament disables the Kings pardon Nota. if he be Impeached in the high Court of Parliament upon this Act as he may be and not by Indictment at Common Law then surely the Kings Pardon will not aide him I have been somewhat more prolixe upon this Statute of 11 H. 7. ca. 1. because it is much insisted upon by the adverse part Give me leave to impart unto you some speciall observations upon these Statutes of E. 3. before mentioned viz. That Justice shall nor be delayed for the great or little Seale of the King Three particulars worthy the consideration branch themselves out of these Lawes naturally Note the contrary held in Cambridge in the Case between the Archebishop of Canterbury Chancellor viz. That the King sitting in Cathedra personally though he might erre in circumstance or the like yet in point of judgement he could not erre 11 Car. aut eo circiter The King may erre in judgement proved by the law positive First That the King may erre in his judgement his Commands may be illegall and contrary to Law Secondly That Armies of men or men in Armes may be raised by the King without authority of Law Thirdly That these forces thus raised by the King are to be suppressed and punished as Delinquents to the Lawes and Government notwithstanding the Kings Command where you may likewise evidently perceive a difference in Law betwixt the Kings Person and his Power I will debate these three partâ—culars briefly The King may erre in his judgement he may Command contrary to Law yea that his verball protestations may be otherwise in private to the Judge in publike to the world the Judge is not bound to beleeve his verball protestations though under Seale he is to execute the Law and not to delay right and justice Note here the command of the Law Nota. the command of the King the command of the Law to be obeyed not the King note also here the supreme power of the Law before spoken of Object Our Malignants cry out and say Is not the King to be beleeved He hath protested upon the holy Sacrament to the world that he will preserve our Religion Lawes and Liberties yea that he will not violate the Lawes we are Rebells and not Subjects if we should discredit the protestations yea the Oathes of our Prince I answer Sol. The Judgement of a Parliament is otherwise he may erre his Commands may be illegall and the Judge is not to regard any protestations that are otherwise but to execute the Law We are good subjects notwithstanding this false aspersion The King may raise Armies of men contrary to law for the second particular he may raise Armies of men against Law that you see plainly for if he send this Message to obstruct the course of Justice by numbers of Armed men are not these men illegally armed For it appeares they come to oppose the Law a great offence by these Lawes evident enough Here likewise appeares the truth of that Stature of 11 H. 7 afore named so much mis-interpreted by evill Counsell about his Majesty such Counsell by which his Majesty is seduced in his heart and misled Of what Counsell the law taketh notice of of which Counsell the Law taketh no notice at all whilst the wisedome of the great Counsell of the King and Kingdome so by Law deemed and determined even in the interpretation of this Law and many others is neglected and not regarded for these numbers of armed men comming with the Kings Seale to stay Justice yea though the King be attended by them in Armes are capitall Offenders and Traitors and so to be certainly pronounced if they shall forceably attempt to execute this Regall Command though the Kings person be attended by them What speakes then the Act of 11 H. 7. but what former Statutes have said The Allegiance of the Subject may be declined and yet the Kings person followed in the Warres for the Regall Warres may be unjust upon all these Statutes and so it is cleare to any rationall man I am sorry to unfold these hidden and secret Mysteries of the Law thus farre for I doe unfainedly honour the King but Amicus Socrates anicus Plato sed magis amica veritas For the third particular that the Judges are to suppresse this illegall power I need not much trouble you withall for otherwise the words of these Statutes were idle and illusory Regall forces not warranted by law are clearely to be supprest by these lawes how could the Judge proceed to Judgement if these men that come to stay the course of Justice were not hindered in the execution of this illegall Command The sence of the Law to be thus upon these Statutes he that runneth may read I intended no more but by way of supposion but in respect that application is necessary in these distracted times Application Nota. and usefull in all Discourse in regard that our opposites will say and clamour too That none of these Lawes are in question there is no violation of them therefore you shall see that in our unhappy times all these afore recited particulars are verified The King doth erre in his Judgement his Commands are contrary to Law witnesse the Kings Command to apprehend the Members of the House of Commons contrary to their Lawes and Priviledges and to try them upon supposed Crimes elsewhere yea his Majesty himselfe came in Person into the House of Commons and Demanded or Commanded delivery of them The illegall Commission of Array so often issuing forth a great oppression to the people whereby he armeth thousands of men at this day contrary to Law and Justice the King claiming no other power to Array his people or Arme them by his owne Declarations in print but which depends upon the Statute of 5 H. 4. before remembred and that Statute is not in force as you may perceive in this Treatise formerly What need I say more Nota. Commissions have been sent under the great Seale to Array the City of London and other places of this Kingdome to take up Armes against the Judges of that high Court of Parliament to hinder Justice and Judgement as these statutes afore mention Shall not these Judges proceed to doe right
Law are not things so considerable as the Militia of the Kingdome which is a thing permanent and abiding and shall have a constant existence so long as England shall continue a Nation of people and therefore the Law hath not taken such speciall care for this The Militia of the Navie depends upon the Militia of the Land as for the Militia But to give you a full answer and not to keepe you in suspence What is the Navie Royall without the Militia How are the Seas defended unlesse the Militia of the Land be designed for that purpose Goodly materialls without any hand to move them for the publike service fit for prospect onely not for use therefore you cannot consider them without the Militia of the Land to guard them The Navie without the Militia of the land to guard it not considerable unlesse they be furnished with men for publike imployment Why then still all depends upon the Militia of the Land and you see by the former discourse how that is setled the King cannot dispose of it otherwise then the Law hath appointed it nay it seemeth that the positive Militia is not in him personally but subordinately in his Ministers and so it is said in Law to be in the King Thus you see an end of this particular the King may build Ships but he cannot make them otherwise then as a livelesse structure unusefull without the Militia But to inlarge my selfe a little further on this particular it appeareth that the Navie that is to say the disposition of men Since this Act some Ordinances for the Navie noâ— Act or statute necessary for that service is not in the King but Parliament who made a temporary Act or Statute since the Parliament began enabling the Lord Admirall for the time being to imprest raise and leavie such number of men necessary for the service of the Navie Ratio why the Militia of the Navie must rest in the power of Parliament Et nota as shall be requisite for that expedition Hence it may plainly be collected that since this Act is expired the Militia for the Navie must of necessity rest in the power of Parliament since the King by implicite consent in enacting this Law so conceived for otherwise he would not sure have assented unto such an Act so derogatory to his Regality if the Law had not been so at that time but he would have authorized the Lord Admirall by Commission under the great Seale and so no Act of Parliament had been necessary Object Further if any man shall object and say That the power of the Militia for the Navie was in the King before this Act and that was the cause of making this statute but temporary which also being expired the Militia of the Navie is revested in the King againe Sol. The answer of this will be but Actum peragere the Militia of the Navie depending upon the Militia of the Land before this Act and therefore the Militia of the Land debated as formerly you have heard at large both that generall and absolute of the Militia as also that which is limited by the positive lawes there needs no further answer The Militia of the Navie in law the land militia Further it is evident to me upon this very Act without any retrospect to what hath been formerly spoken that the Militia of the Land the great matter now controverted must of necessity rest in Parliament for it is parcell of the Militia of the Kingdome Sea and land incorporated in point of dominion if the militia of the sea pertaine to the Parliament so must also the militia of the land unlesse you divide the power of the militia the Militia of the Sea is also the Militia of the Kingdome yea of the Land it selfe for the Sea and Land are incorporated by Law in point of Dominion and made one body subject to one head The Militia therefore of the Kingdome and the Militia of the Land are all one in Law and in the Militia of the Kingdome you must include the Militia of the Navie since the kingdom in judgement of law includeth both Sea and Land Or otherwise if we shall abandon all reason in the Exposition of this Statute it must at least be granted Nota. Division of the power of the militia dangerous to government that the Militia of the Navie is in the power of the Parliament even by the implicite judgement of the King and his great Counsell and admit a fraction or division of this great power so dangerous to Government and tending much to the weakening and enervating the great strength of this Kingdom I mean the Militia thereof and be occasion of perpetuall intestine wars in this Nation a position so inconsistent with Government and dishonourable to the Wisedome of this State that I thinke there needs no further confutation of it The Forts and Magazines surely are as attendants and adjuncts unto the Militia The militia of the Forts and Castles and that common reason teacheth the one to secure the Ammunition pertaining to the Militia and as a receptacle for the same commonly called the Store-houses for Armes the other to imploy the Militia in for the defence of the Land against the enemy Ratiâ— why the Forts and Castles dâ—fensible pertaine not to the King for surely the Forts and Castles defensible belong not unto the King in right for one speciall reason because if they should belong unto the King then you must grant him a power and right in the Militia to be imployed in the service of these Forts and Castles for to what purpose hath the King these if he cannot command the Militia of the Kingdome to defend them they are then in judgement of Law and reason houses or Princely Pallaces onely nor Forts or Castles so that you see in conclusion by Law and Reason we are come to this The right and power of the Militia of the Kingdome rules all Forts Ships Navie Magazines Castles all depend upon this therefore I hope I have spoken of these particulars sufficiently Object It may be objected that Sir Edw. Coke saith in his Institutes upon Littleton That no man can build a Castle defensible or of Military strength without leave of the King hence it may be inferred Sol. the King may build and consequently hold such a Castle or place of strength The ancient Common Law for the land Militia rules the Militia for the Forts and Castles but what of this he hath nothing to doe with the Militia this notwithstanding And if it should be granted otherwise yet he cannot defend it with any other Militia then of those persons that are hereunto especially bound by Tenure or Contract neither can any be forced out of their Shires contrary to the Law to defend this place of strength or Castle also that the King may build and hold a Castle defencible may thus be intended The Sheriffes possession the Kings