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
was no proceedings as in Civill in Parliament against any Members thereof in an ordinary course of Justice and therefore this Law was made somewhat to abridge this high priviledge namely in this that any Member offending shall be subject to the censure of that great Court in an ordinary course of Justice which before he was not but in an extraordinary way by Petition or the like in which condition he now stands as to civill actions To this I can give no positive answer but I rather incline to thinke that this Law was rather parcell of the priviledge it selfe or contemporary with it and no subsequent Law and so this collection formerly mentioned nor materiall Also I conceive that if this Law before objected shall be found subsequent to the priviledge of Parliament in this particular which for my part I doe not credit yet before this Act or Law delinquent Members thereof were not exempt from Justice but onely in a positive course of proceeding they were still subject to the censure of that high Court in an arbitrary way and so no Cesser or defect of Justice which were a thing of so honourable a Tribunell not to be imagined Thus you see the wisedome of the Law in the framing of these great priviledges in Criminall matters The Reason and ground of the Priviledge of the Parliament both in Criminall and Civill matters Nota. because both God and man require festinum remedium the offences being exorbitant Justice open and cannot be denyed even in an ordinary Course Also the House of Parliament being first acquainted therewith and their leave obtained Censure may be elsewhere not otherwise in civill actions not so but an utter cessation of necessity of ordinary course of Justice for if otherwise the Parliament would be filled with private Suits and Actions and many of them frivolous the many and weighty affaires of the Kingdome in the meane time neglected To conclude the Parliament you see hath that high Priviledge in Criminall matters communicated to no other Court of Justice The Priviledge of Parliament paralleld with the priviledge of inferiour Court in Civill matters but in Civill Actions there are some foot-steps of this great Priviledge in inferiour Courts In the Common Pleas a Writ of Priviledge or Supercedeas to stay proceedings against any member of that Court and if the parry hath cause of Action he ought to Sue in the Common Pleas parallel this case with the Priviledge of Parliament in Civill Actions you will finde it almost the same The Supersedeas or Writ of Priviledge removeth not the Cause no more is the Cause removed by clayming the priviledge of Parliament but a Cesset processus legis quousq c. If the Party hath cause of Action he must Sue in the Common Pleas Priviledge of Parliament in Civill Actions greater then of inferiour Courts so may he I take it in Parliament by Petition or otherwise as the pleasure of that Court will permit but not in any course of Justice ordinary as he may in the Common Pleas here the priviledge of Parliament exceedeth the priviledge of inferiour Courts Likewise in Common Pleas priviledge for Strangers Eundo redeundo concerning their Suits there and this extends as well to their persons to free them from Arrest as to their goods necessary for their Suit and Charges priviledges of Parliament I take the same I need not use repetition Now to hasten to an end of this the reason why the Law hath given unto this High Court this and many other priviledges is for the publike good to the end that Parliaments which are to the State Tanquam medicus aegro like the Phisitian to a sicke person should not be eluded or frustrated by suggestions of Crimes against any members thereof by the King or any persons whatsoever The very being of Parliaments depend upon the priviledge in Criminall matters being taken away from the service of the Houses tryed elsewhere by inferiour Courts for so they might take away all and consequently make a Parliament what they would and when they would which is a breach of so essentiall a priviledge that even the very being of Parliaments dependeth thereupon His Majesty in one of his Declarations saith Object That the Parliament themselves in the beginning of his Raigne in a Petition unto him presented by both Houses in the case of the Earle of Arundell acknowledged their priviledge not to extend to Treason Felony and the Peace the words are They finde it an undoubted right and constant priviledge of Parliament The priviledge of Parliament in expresse words by themselves presented to the King that no Member of Parliament sitting in the Parliament or within the usuall times of priviledge of Parliament is to be imprisoned or restrained without Order or Sentence of the House unlesse it be for Treason Felony or for refusing to give Sureties for the Peace I have faithfully and truly opened all matters that make any waies against me and so I will God willing throughout this whole Discourse let the Reader impartially judge Sol. Priviledge of the Parliament as large as before notwithstanding the words of this petition Although these words fore-going of this petition be very large and seeme much to abridge this privil dge yet upon true examination they doe not for the words That none shall be imprisoned or restrained c. plainely relate to civill actions or proceedings the words Unlesse in case of Treason c imply they shall be subject to imprisonment or restraint but note the words they doe not say of any inferiour Court but still the priviledge remaineth the same notwithstanding the words of this petition But here it may be objected that 〈◊〉 have left out that which makes most against me viz. these words Without order or sentence of the Houses implying cleerly that in Cases of Criminall the order and Sentence of the House is not requisite Sentence and Order of the Parliament an extraordinary course of Justice upon the words of this petition Nota. but they may be proceeded against without leave But marke the words and then judge it is plaine by their sence and meaning that in civill actions they cannot be proceeded against without sentence and order of Parliament no ordinary course of Justice The order of Parliament upon petition or the like is an extraordinary and Arbitrary course of Justice but in Criminall matters they may be censured without sentence and order of the House that is in an ordinary and positive way of Justice but this must be in the hâ—gh Court of Parliament it selfe and not else-where without their leave and so is the sence of these words to any rationall man well observing There is no power given to inferiour Courts by these words either expresse or implyed Nota. but the priviledge continueth the same it was nothing diminished by the words of this petition Further The positive law in inferiour Courts and the law of
the the same let him Discendere in arenam I heartily desire that by the same rules of Law and Justice the folly of this worke may be convinced and that with meeknesse and moderation by the touch-stone of truth viz. the positive Lawes that those that sit in darknesse may be enlightned let no man goe about to hew it in pieces with the sword of violence and injustice R. 2. for then heare what the blessed Apostle saith By breaking the Lawes dishonourest thou God Thinkest thou that the humane Lawes are not the Lawes of God when thy obedience unto them is so often in the holy Writ injoyned yea canst thou imagine that if thou shalt transgresse this Law that thou shalt escape the righteous Judgement of God Rich Legacies viz. the positive lawes Are the rich Legacies of thy forefathers bought at so deare a price with so much bloud and treasure trampled under thy feet as despicable things I will say no more Remember the wise man let not mercy and truth forsake thee binde them about thy neck and I beseech the Almighty God to give unto us all a right understanding in all things What I intended is now finished wherein I have squared my course altogether by the positive Lawes because of exception of the adverse part not touching upon the legislative or supreme power of Parliaments Master Plynne it being done already by the Pen of a learned Gentleman whose abilities are sufficiently knowne If I have satisfied any man in what is written it is my desire Epilogue I call Heaven and Earth to witnesse that according to my knowledge in the Lawes of this Kingdome I have delivered the truth and I wish every man to lay his hand upon his heart and rightly to weigh and consider the premisses and for passion sinister ends or respects to deviate neither to the right hand not to the left but with a sincere and cleere minde to implore the Divine assistance that in so weighty a matter he may act resolve and doe that which shall be agreeable to the holy will and pleasure of God and consonant unto the Honourable Lawes and Government of this flourishing State and Kingdome Soli Deo Gloria The Table ABsence of the King from Parliament how farre justifiable Page 19. as it hath been many yeares by no Law warrant used only page 21. Vi. tit Statute 38 H. 8. ca. 21. vi tit use Of any Member from Parliament how and in what manner justifiable and where and in what manner punishable p. 15 16 17 18 c. Vi. tit Statut. 5 R. 2. 6 H. 8. ca. 16. Acception legall priviledge of Parliament Pag. 6 7. Act Judiciall Ministeriall in what Cases not incident to the Kings Person pag. 32 Vi. tit presence Allegiance the Etymology thereof p. 18. triplex naturall locall legall p. 57 58 59 c. Vi. tit Statute 11. H. 7. ca. 1. to what capacity of the King due p. 62 Armes who permitted to beare who not Vi. tit Statute 2. E. 3. ca. 3. by the Parliament defensive justified in them â—s a Court of justice p. 70 71 72. Aâ—â—â—ne Royall in what cases requisite in what not p. 38. C. CApacity of the King naturall politick Vi. titl Allegiance devant naturall how secured by Law p. 66. Causes of Parliament efficient materiall formall finall differ c. p. 117 118 119. c. Commission of Array disproved Vi. alarge p. totum 52. 53. usque 59. Corone All Administration of Justice at first in the Crowne how meant p. 32 33. Court Parliament a Court of Justice without the Kings personall presence 32 33 34. severall Courts of Justice ibid. c. Vi. p. 72. Their 〈◊〉 to coâ—â—â—â—dâ—â—â— posse comiâ—â—â—â— posse 〈…〉 proved p. 37 72. Court in what Cases fall in Jâ—dgement oâ— Law in what not p. 39 40 D. DIspensation Regall against a Statute â—here of forcâ— wherenot Viâ—tul Non obstante E. Escuage The service explained not penal but by Parliament p. 46 47 Exception legall privil edge of Parliament p. â—6 7. Exception where it relates to the body of the Act 〈◊〉 â—re not p. 45. in some Cases unnecessary ibid. I. Innuendo in Acts of Parliament where rejected p. 4â— Judgement Against the King by the Law positive and compulsary p. 2â— â—6 Judgement or proceedings of Parliament not subject to debate elsewhere p. 2â— 24 â—â— Judgement definitive in what Cases pertaining to Parliament or other Courts of justice p. 39 4â— Judiciall Acts trans-acted in what cases by part of the Court representative by all p. 35 40. differed from ministeriall ibid Judge Who shall he of the danger of the Realme or of the â—ecessity of raising Armies p. 64 65. paralel'd with the power of judgement in inferiour Courts ibid K. King WHat capacity intended by Law and what meant hereby Vi. titl Capacity Vi. a large titl Stat. 5. R. 2 â—â— E. 3. p. 16 17 18 97. Considered in both capacities naturall politick p. 65. 66. L. LAw of Parliament Vi. titl priviledge inconsistent with the positive Law yet just p. 13 122 Common Law touching the Militia p. 43 44 45. usque 52 per totum Vi. titl Statut. 1 E. 3. 5 â— H. 4. 13. The onely positive Law now in force concerning the Militia Lawes and Statutes how to be expounded Vi. p. 50. 77. M. Militia A Right of Parliament p. 43. Duplex generall absolute or extraordinary ordinary or liâ—â—ted by the positive Lawes p. â— The Militia positive extendeth onely to Tenures or Contracts not to be forced out of their Shires unlesse in case of sudden invasion p. 45 46 47 c. Militia positive vestâ—d in the Sheriffe as an instrument or Officer by Statute in the Law or Courts of Justice in the power or right Vi. a large p. 82 83. usque 88. Vi. tiâ—l statut 9. E. 2. 28 E. 1. cap. 28. The generall or absolute power of the Militia in Parliament De jure not in the King the reasons why at large p. 78 79 80. Militia Of the Navie or the Seas in Parliament not in the King at large debated p. 90 91. c. not divisible ibid. Militia The Adjuncts and Attendants of the Militia viz. the Fortâ— Castles and Magazines to whom they belong ibid Different from houses or palaces ibid N. NEgative voice in Parliament to what it extends p. 23 24 c. examined in inferiour Courts p. 25 Non obstaâ—â—te in the Kings pardon where availeable where not p. 62 63 105 109. O. OAth of the King at his Coronation explained p. 27 28. Observations touching the discourse p. 122 123 c. Offence in presence of a Court of justice and in presence of the King differ Ordinance the Etymology of it how Regall power the Oâ—dinance of God p. 100 101 102 Ordinance and the force thereof in Parliaments in inferiour Courts debated p. 38 39 Offices publike or the great Offices of the Kingdome to whom the disposition of them pertaines p. 93 94. P.
the Judges of any crime committed in that Court and no other inferiour Court as hath been proved at large Also this latter Statute of 6 H. 8. 6 Hen. 8. ca. 16. A stricter law then 5. R. 2. seemeth to conclude all Delinquents that have not Licence as is before mentioned although the occasion of their absence be great and urgent affaires even in Law and conscience satisfactory Now to deny unto the Parliament the dispensation of Justice against Offenders in this kinde as it is too apparent and withall to protect them from the censure of that high and great Court surely I say no more it is a violation of their Lawes and Rights unto them anciently belonging But that I may answer all Objections Object it is urged by the adverse party that their departure from the service of the Parliament was forced by tumults and disorders of people not without just feare and perill of their lives and therefore their absence not within either of the Statures before named but justifiable by the rules of all Law and Conscience Sol. To which I answer because it seemeth materiall that first it must be granted that those Members so departing were Summoned to returne to the Service of the Houses and their Answers especially of divers of the House of Peeres were to this purpose That by their duty of Allegiance they were bound to attend the Kings Person or that they were commanded to attend his Person and therefore they held themselves excusable which was in effect a plaine deniall divers of which Answers I have seene in print Now it must needs be inferred from hence and it plainely appeares to any man not devoid of reason That if there had been really any such danger or cause as is objected Nota. they would have inserted the same in their Answers and so reasonable and certaine an Argument of their innocency would not have been omitted as on the contrary so high and contumacious a defence would not have been returned such an affront and contempt of Justice that even a Court of Pye-powders would not have suffered Also see their Answers what they are their Allegiance is the ground of them as if their attendance on the Kings Person warranted them to doe injustice to violate the Lawes of these Statutes before named Is this their Allegiance to the King Is not the Subjects Allegiance confired to the Lawes Is not the very Etimology of the word derived from thence Legiantia Allegiance the Etymology quasi legis essentia therefore their answers not legall Their answer noâ— legall because they infringe the law viz. 5. R. 2 6. H. 8. Tumult what it is as also the Objection of being driven from the Parliament frivolous for then they would have made use of it in their answers Further to question the word Tumult afore mentioned doe numbers of people with Petitions no way disturbing the Peace make in Law a Tumult Certainely no likewise it appeares by undeniable proofe that some of them were sollicited away from Parliament by Letters therefore the former allegation is idle For the Kings absence from the Parliament in what condition it stands The Kings absence from the Parliament by the ancient law how farre justifiable I will offer you one of the ancient Lawes of that pious Prince Edward Sir named the Confessor whose Lawes the Kings of this Nation at their Coronation sweate to observe and keep the words are these rendred in English The King ought to be present at his Parliament unlesse he be hindred by sicknesse and then he ought to be in the same Towne where the Parliament is held and his sicknesse ought to be certified by twelve Members of the Parliament a Committee for that purpose of the Lords and Commons Here appeares no cause of his absence but sicknesse justifiable and of this he himselfe is not the Judge it must be certified as you have heard What not perill of his life may some say Is that no just cause of His absence You heare the Law I have nothing to say to questions It seemes in those dayes there were no such unworthy and dishonourable thoughts in the mindes of men as to doubt the security of Parliaments unto the Regall Person since in judgement of Law if Tumults or Disorders shall happen in the Common-wealth Parliaments are best able to suppâ—â—se them and to protect both King and pâ—ople from injury and wrong Now Parliaments are the bane of Princes as they are now to â—â—ed they are now Corasives when as you see formerly they were the onely curers of all Diseases in the Body Politique The King formerly not any where safe but here now the King in His owne judgement safe any where but here flying from them as from His enemy when as it is not possible he should finde any where that which he desireth but under God even with them peace and security Be not deceived Great Prince neither fly them that pursue you not in any Hostile manner The Parliament follow you with humble Declarations and Petitions for Peace you mistake their sweet Compellations put up your Sword into the Sheath and let Peace be in our dwellings and amongst us I have a little deviated I will returne unto my selfe and I finde the King still absent notwithstanding all that hath been spoken and justifying the same Indeed there is a Statute in the time of King Henry the 8 via 33. H. 8. cap. 21. 33. H. 8. ca. 21. by which in the Kings absence from Parliament His Assent by his Letters Patents under the Great Seale shall be sufficient Here it may be alledged Object that the Kings absence from Parliament is warranted by this Statute I answer Sol. This is nothing to make the ancient Law afore recited ineffectuall for his absence here upon this Law standeth as it did before this Act not touched or medled with by this Act and therefore sicknesse continues still a cause of absence of the Kings Person from his Parliament and no other and where he might legally justifie his absence before this Statute he may still doe the same and no otherwaies And although that the use now of late times hath been Vse of no force against a law Vi. infra that the first and last day of Parliament is sufficient yet that is but use which is of no force against a Law in being as I conceive Further His Assent by this Act is limited it is onely to Acts of Parliament and no other assent is warranted Note also that to dis-assent to any matter trans-acted in Parliament it giveth him no power at all Thus you see Ex libro de ordine Parlia Editi tempâ—re Edvardi filij Regis Ethelâ— redi the Kings absence from his Parliament how it stands by the ancient Law of which I have an extract as also by latter Law you have heard likewise the absence of the Members of the Houses debated But we will Argumenti
arguments of Judges â—o resolutions in this particular and iâ— they had been resolutions they had been erronious as it is manifest by what is formerly spoken and by the judgement also of this Parliament in reciting the ancient Common Law in this particular in force even at this day Much labour hath been spent in one of the Kings Declarations to put in or for and in the Statute of 1 E. 3. No necessity but forreine invasion upon the Common Law of the Statuteâ— which recites the Common Law and so to extend that Statute and the Common Law likewise to home defence but the truth of it is there is neither or nor and in the Statute of 4 H. 4. which is a weighty Statute and recites the Common Law in this particular and the Statutes confirming it for the words of this Statute are Forreine service by statute this Parliament enacted a fâ—â—tioâ—â—â— Home defence None shall be forced out of his Shire to the Kings Wars unlesse in case of necessity of suddain comming of strange enemies into the Realm thus you see all passages cleared His Majesty in one of his Declarations saith That he yeelded more willingly unto thiâ— Act for releefe of Ireland it being no matter of home defence but forreine as being also formerly controverted how groundlesse the controversie was on the adverse part for disposition of the Militia for forreine service by the regall authority you may see by what hath been formerly delivered Also we may reason thus upon this Statute viz. The Statute for releefe of Ireland that if no forces can be raised by the King for the defence of a forreine Kingdome though subject to the Crowne of England a fortiori they cannot be raised for home defence without consent of Parliament and certainely if they might be raised they must be maintained and what provision hath the Law made for them verily even none at all then it followes that Armies of men illegally raised must be illegally maintained that is to say By rapine and oppression Object Commission of Array But it is objected That the Kings forces are raised legally viz. by a Commission under the Great Seale commonly called The Commission of Array Sol. to which I answer That the Commission of Array is against the fundamentall Lawes of this Realme and is neither warranted neither by Common Law or Statute or president of former times it being against them all directly forcing men to goe out of their Counties as it is now put in practice against the ancient Common Law formerly remembred and to finde Armes contrary to the Assize limited in the Statute of Winchester and subjecting mens bodies and estates to imprisonment and other penalties imposed by Commissioners for refusall things not warranted by any Law Object But it is urged That the Law of 5 H 4. a Statute not in print upon which his Majesty grounds his Commission of Array is in force Indeed that Statute the King hath made use of in print to publike view for his sole and onely warrant of this Commission but you shall see presently how unsafe a refuge it is yea how upon the first triall of it it will not enduâ—e For in the first place I say Sol. It is absolutely repealed and that by the Statute of 21. Jacobi by which all former Statutes concerning the power of Arraying men are repealed and then surely Statutes that concerne the execution of this power must needs be also repealed as this of 5. H. 4. is 5 H. 4. Depends upon Winchester as even reason teacheth for how can any Statute touching Commissioners Arraying or arming men stand in force when the Statute of Winchester the sole Statute concerning the power of Array is by the Law repealed but to make it plaine to every capacity the Law of 5. H. 4. is onely a Law for the indemnity of Commissioners putting in execution the Statute of Winchester Now if the Statute of Winchester be nor in force this of 5. H. 4. 5. H. 4. Temporary no statute must likewise fall to the ground because it doth necessarily depend thereupon Further this Statute of 5. H. 4. was but temporary and so expired long agoe or no Statute at all but a Commission inrolled or the like never assented unto in nature of an Act of Parliament as is learnedly proved by the Remonstrance of Parliament Concerning the Commission of Array I will crave the patience to answer one Objection more particularly because it seemeth materiall and this is made by the Penner of one of the Kings Declarations Object to wit that 21. Jacobi repeales indeed the Statute of Winchester but not 5 H. 4. Refutation of the Commission of Atâ—â—y by Parliament because Winchester is onely for preservation of me peace at ordinary times as also the Asâ—ize of Armes in that Act mentioned a petty and small proportion not sutable or agreeable to extraordinary or great occasions as suddaine invasion or the like and therefore 5. H. 4. Authorizing a large Commission for the raising and leavying of Armes agreeable to any occasion ordinary or extraordinary must needs be still in force notwithstanding the repeale of Winchester they are severall Statutes to severall ends and puâ—poses and therefore the repealing of the one repeaseth not the other Sol. Winchester for deseâ—â—e ordinary and extraordiâ—â—ry I answer The Statute of Winchester is intended by the very words and sence of the Law for defence ordinary and extraordinary and so is the Judgement of a Parliament in 3. R. 2. that Winchester was made for the defence of the Kingdome and the small proportions of Assizes of Armes there mentioned are but onely mentioned for example Exâ—mpla illustrant non testringunt lâ—gem Assises or proportions other then in that Statute limited and above those proportions are plainely collected from the very words of this Act as also that Winchester did extend to other proportions was the judgement of the Parliament 3. R. 2. before specified Come we then to 5. H. 4. that recites the Statute of Winchester and confirmes it as likewise that the Statute of Winchester was made for the defence of the Kingdome ordinary The very words of 5. H. 4. shewes that Winchester was for defence ordinary and extraordinary and extraordinary appeares by the very words of this Act for defence of the Sea-coasts and that in that case the Statute of Winchester shall be observed Are the Sea-coasts defended but for feare of forreine invasion which likewise was the cause of making this Act for but the yeare before the French attempted to invade this Kingdome It may be said then Object What needs this Act of 5. H. 4. if the Statute of Winchester provided sufficiently for defence of this Kingdome I answer Sol. That this Act was made to rectifie illegall Commissions not warranted by the Statute of Winchester and this was the sole end of the making this Act. The true sence and effect of the statute
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