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A31803 His Maiesties answer to the declaration of both Hovses of Parliament concerning the Commission of Array of the 1 of July 1642. Charles I, King of England, 1600-1649. 1642 (1642) Wing C2115; ESTC R26443 44,134 101

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goe at their owne charges not onely out of their proper Counties but also upon occasion of some insurrections into VVales which at that time and untill the Act of Vnion 27. H. 8. was to some purposes at least commonly reputed a distinct Dominion as appeares even by this Parliament Roll in these words That none of the said Commons be distrained to goe into VVales or else-where out of the Realme and otherwise the usuall phrase in severall Acts of Parliament being also to this day the Kingdome of England and Dominion of VVales And such a Commission Wee may well admit to be against all those three Statutes without impeachment of Ours Wee shall say no more as to this Statute single but that as We have observed before both in the Parliament Roll and Printed Act the first Clause of 1. E. 3. concerning arming being purposely omitted it shewes that the meere matter of causing the Subject to be armed was not the grievance then complained of or meant to be redressed Having thus farre proceeded in Our particular Answers unto the severall Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4. H. 4. as they were appliable to the first Objection made upon them against Our imposing of Armes upon the Subject Wee shall in the next place proceed to the Answer of the other Objection made against Our Commission upon the Statute of 1. E. 3. and 4. H. 4. of Confirmation For as to the other Statutes of 13. E. 1. and 25. E. 3. We doe not conceive that they are or can be meant unto this purpose Hereupon the Objection is this That by the Statute of 1. E. 3 and 4. H. 4. the Subject is not compellable to go out of His County but in case of the sudden coming of an Enemy which the Declaration interprets of an actuall Invasion But this Commission gives Power not onely to compell the Subject to goe out of his County before an actuall Invasion as the case is put in the stating of it but as it is expressed in other parts of the Declaration without Limitation and at pleasure To this Objection Our Answer is That both the sence of the Statutes and of the Powers of Our Commission are mistaken For first as Wee have before stated it Our Commission gives that Power of conducting out of the County onely against an Enemy and for defence of the Countrey in case of imminent danger and but when and where it shall be most needfull And so not without limitation and at pleasure And secondly as to the sence of the Statutes We do deny that the Subject is not compellable to goe out of his County unlesse in case of an actuall Invasion by a forraigne Enemy And herein though Wee have not upon this Commission necessary occasion to dispute it yet Wee cannot but observe That the Declaration allowes of no necessity of compelling the Subject out of the proper County in case of actuall rebellion and onely against a forraigne Enemy the ground whereof is a mistake in recitall of the Statute of 1. E. 3. by the Act of confirmation of 4. H. 4. of the word And betweene the two words necessity and suddaine comming The Act of 1. E. 3. going thus That no man be distrained to goe out of his County but where necessity requireth and sudden comming of strange enemies into the Realme And the Act of 4. H. 4. which as We have before observed reciteth not the whole Statute of 1. E. 3. but so much thereof as upon occasion of the late forraigne service did then concerne the present complaint being in these words That none shall be distrained to goe out of their County but onely for the cause of necessity Of sudden comming of strange enemies into the Realme Whereas if in this recitall the word And had been put in place of the word Of or before it both had agreed and so the sence of the Statute as to this matter of going out of the County had been upon 4. H. 4. as it is upon 1. E. 3. That no man be compelled to go out of the County but in case of necesity or coming of enemies the word And in exposition of Statutes being most frequently taken for Or according to the Subject matter and so the Statute had excepted two cases necessity arising from within by actuall rebellion and necessity arising from abroad by sudden coming of strange enemies this exception in both being absolutely necessary for defence of the Realm and according to the Common Law of which the Statute is but declarative and the practice both before and since And indeed it could be no otherwise in property of speech for there cannot be a cause of necessity of the sudden coming of enemies but there is a necessity of defence against their coming And in this case We are to be guided by the Statute 1. Ed. 3. as it was Originally as it is also truly set forth in the Declaration and agrees with all printed Statutes both in English and French ancient Manuscripts all of them derived from the Originall Statute Roll which was lost before 4. H. 4. that which now remains being but a Transcript of a Transcript Thus then without more We shall apply Our selves to the Objection as it is made upon the words of 1. E. 3. both in the Originall and the Recitall And We say That the Subject is compellable to go out of his County for defence of the Kingdom as necessity shall require before the Landing or other Entry of the Enemy to prevent his Landing or Entry And for this We shall but recite the words againe And they are these That no man be compelled to go out of his County but where necessity requireth and sudden coming of strange enemies into the Realm Wherein it seemes to Us most plaine that these words require no such Actuall Landing or Entry of an Enemy into the Kingdom before the Subject is Compellable out of his County For the words of the Act are not as to this point when the Enemy is come but upon the coming not within the Realm but into the Realm And all men know that in ordinary Speech a man may be said to be coming into a place when he is upon a remove to a place but most properly when he is on his way especially when he approacheth with an intention to enter thereinto and in such sence these words of coming into the Realm must be taken in this Statute But in case the words of the enemies coming into the Realm might bear a doubtfull interpretation that sence must be taken which agrees with the Common Law before practised Whereof this Act is but Declarative the constant practice of all ages since that is That the Subjects have ever been commanded and gone out of the County against the Enemy before any Landing or Entry And to give this Statute of 1. E. 3. any other sence were against all Common reason and the rules of government
by which We would be loath to bind our Subjects Neverthelesse though Preambles be not in themselves sufficient to declare Laws yet We deny not they are of good use though not convincing Arguments to expound them And for Our power in the matter of Rebellion besides what hath been said We might also adde if it were materiall to this Commission Preambles Recitals and other necessary Inferences out of other Statutes made since those intended in this Recitall which would prove that in case of Rebellion all Our Subjects ought to assist Us and to attend Our Person upon Our command for the defence thereof whensoever We should require it And the truth is the occasion of this Act now urged against Us appears to be for the service of Ireland and the intention of it for so much as is the enacting part was to take away all question concerning the pressing of the Subjects of England for the suppression of the Rebellion in Ireland And so concerned forraign service and not home defence either against Invasion of Enemies or Rebels And thus far the work of the Declaration hath been to overthrow Our Commission by Statutes alleadged to be directly against it There remains yet some other Objections drawn from the opinion of former Parliaments and the practice of Our selves and Our Predecessors and those not directly but by inferences But these as we shall shew are so farre from concluding against Our Commission that they rather prove the contrary The first of these Objections is upon the Statutes of 1. Jac. c. 25. and 21. Iac. c. 28. of Repeals And is thus That the Statute of 4 5. Ph. M. cap. 2. having repealed this Commission for so the Declaration supposeth They had shewed little care of their own and the Subjects liberty in the Parliament of ● Iac. to repeal that Statute thereby to revive the power of this Commission which would have subjected the people to far greater bondage and from thence inferreth That it is not probable that the Parliament of 1. Jac. would have repealed 4 5 Ph. M. As lik●wise from the Statute of 21. Iac. which repealed the Statutes of 13. E. 1. and 33. H. 8. That it is not probable that the Parliament of 21. Jac. would have repealed those Statutes which in a moderate manner proportioned the Arms every man was to find in certainty And suffer an Act meaning this of 5. H. 4. to continue which established a power in the King without limitation not only to impose Arms but to command the persons of the Subjects at pleasure To this We say that both the grounds of this Objection are mistaken For as We have already shewed neither is this Commission repealed by the Act of 4 5 P. M. Nor is there any such unlimited Power given or Bondage by it as is pretended And therefore Our Answer is That it is no wonder that those Parliaments might repeal 4 5 P. M. as too hard and 13. E. 1. 33 H. 8. as of no use and put the Militia of this Kingdom again wholly under the powers of this Commission being so indifferent between both the other And indeed the Militia did after continue under Lievtenants who had in effect the powers given by this Commission And now We shall return this Objection thus That those Parliaments of 1. Jac. and 21. Iac. would have shewed little care of the safety and defence of the Kingdom to have repealed those Statutes which made provision for Arms if they had thought there were no Law or Power left in the King to charge men with Arms for defence of the Kingdom as the Declaration affirmes the Law now to be But whosoever considers that at that time and long before the power of imposing arms was put in execution by Lievtenants and Deputy-Lievtenants by authority of their Commissions which to this purpose are the same with Our Commissions of Array and that this power was not complained of in those Parliaments must conclude it more then probable that those Parliaments did then conceive there was a sufficient power remaining in the King to impose Arms The next Objection is from the opinion of the Parliament of 4. and 5. Philip Mary c. 3 That if Our Commission had been authorized by Act of Parliament that Statute of Ph. Mar. had been to little purpose whereby the penalty of Imprisonment for ten dayes or forty shillings is imposed upon such as do not appear at Musters being Summoned thereunto by the Kings Commissioners authorized for that purpose Intimating as that the Act of Phil Mar. would never have been made if they had then conceived that We had power to grant such Commissions To this We answer That the particular Arms and proportions of Arms were then before appointed by the Statute of 4. and 5. Ph. Mar. Cap. 2. under certain penalties upon those who should be defective and so a great part of the care of the Commissioners of Array was supplyed by the provision of that Statute and the Commissions of Array being not so proper but in time of Danger and of a larger extent then the power of mustering a Commission of Muster which is part of the power of a Commission of Array would then serve the ordinary turn and for every ordinary default but at a Muster in a time of no Danger the punishment by 4. and 5. Ph. Mar. cap. 3. was great enough And for return of this Objection We say as We observed before That this Statute gives no new power to grant Commissions for Musters but admits the power to grant such Commissions to have been in the King before that time And whereas the Statute of 13. E. 1. appoints no other Officers but the Constables for view of arms it appears by these Statutes of Phil. and Mar. that the King might appoint His Commissioners which he could not if this power of Arms had been wholly grounded upon that Statute The Last Objection of this nature is grounded upon the Common opinion or practice And is this That the Commissions of Lievtenancy so grievous to the people and declared illegall in Parliament had not been so often issued and so much pressed upon them if the Commission of Array not much differing from it in power and not at all lesse grievous to the Subject might by the warrant and authority of the Laws of this Realm have supplied their room To this Our Answer is That it stands upon two grounds First That the Commissions of Lievtenancy were grievous Secondly That they were illegall both which so far forth at least as to the powers wherein they did not exceed the power of this Commission for the other powers are not now in question are cleerly mistaken For as for the grievousnesse we say these Commissions were such as had been long used in the happiest times of Our Predecessors and continued to Our Time And such grievances as did or might arise in the execution