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
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
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
Law they are meere estranged from any knowledge in this nature of any proceedings of each other interlocutory untill judgement given and then it must legally be brought before them Jurisdiction of Courts so that this Case is clearely meant of their joynt power wherein by custome as saith Sir Edward Cooke the Lords only proceed to reverse or affirme any Judgement upon errour no whit diminishing the Power and Authority of the House of Commons by this for divers matters may by custome be severally trans-acted by Persons having the same power and authority Transaction by one done by all representative and yet they are in Law trans-acted by all the Members or Judges of that Court representative How the opinion of Sir E. Cooke formerly is to be understood viz. according to their joynt power of Judicatuâ—e But I doubt not but the transcript of any Judgement in the Kings Bench may be commanded and that legally too into the House of Commons and that they may proceed thereupon either to affirme or reverse the Judgement and that by the power of that high Court as a severall and distinct Court of Justice from the House of Peeres this Case before remembred to be good Law notwithstanding but this I leave to the learned The House of Commons may take a Recognizance at a distinct court of Justice Now concerning the Recognizance before touched there is nothing expressed or implyed in this Case but that the House of Commons as a severall and distinct Court of Justice of it selfe may take a Recognizance there is no question of that for every Court of Record have that power unquestionably yea derivative Authority from Courts of Justice as Commissioners of Oier and Terminer are invested with this Authority Further The House of Commons may take a Recognizance according to their joynt power the House of Commons considered in relation to their joynt power may take a Recognizance for so saith good authority that reverend Judge Brooke in abridging the said Case of 1 H. 7. before cited Videtur quod tout un are his very words besides if there hath no such practise been or used in the House of Commons that is no proofe it is no argument from a non esse to a non posse an hundred presidents Sub silentio make not a Law it was never yet upon contestation so determined but of this sufficient Thus I hope I have cleared this false aspersion it plainely appearing that they are a High and Supreme Court of Justice joyntly and severally without the Kings personall presence The Assembly at Oxford no Parliament There hath of late been an Anti-parliament for so I may terme it erected at Oxford whereby they had thought to have weakened the power of this Parliament by Voting their proceedings as traiterous and illegall but alas these are poore shifts and evasions seeing there is an Act unto which they themselves this very Session have assented by which it appeares this Parliament cannot be held proroged or adjournied elsewhere without the consent of both Houses of Parliament now assembled so that this Assembly at Oxford is no Parliament and consequently their proceedings a meere nullity in judgement of Law and withall subject to severe Censure in regard they have assumed to themselves the Supreme Authority of the Kingdome without any warrant of Law so to doe and that spurious generation of Bastards or illegitimate Children which seeke to sever and divide the Power and Authority of this High Court by affirming any legall presence of this Assembly elsewhere the wise Salomons of this Parliament will in their due time bring to condigne punishment Well then they being in Parliament and a high Court of Justice without the Kingâ— personall presence Inferiour Courts may command Posse comitatus what question can be made of their power even as a Court of Justice to constraine and compell all persons yea even by force of Armes to submit to their supreme Authority and in case of resistance if inferiour Courts may command Posse Comitatus to execute their Processes and Injunctions as it is manifest they may for in one common Case of Replevin from the Court of Common Pleas the Sheriffe of the County as Minister to the Court of Justice if the party that hath taken a Distresse carry the same to a Fort or Castle to the end it may not be replevied he may command the power of the County to attend him and abate that Fortlet or Castle in case of resistance delivering by Replevin the Cattell to the owner Surely then the Parliament in case their Power be contemned and disobeyed may command Posse Regni and not onely Posse comitatus to bring all persons rebellious unto the Justice of that High Court there to receive according to their merits And thâ—s is the case of this present Parliament as I take it who have legally Summoned the Members of both Houses now absent to attend the Service of the Houses and they have not appeared but absolutely refused to obey the Summons Processe and Power of that Court which for my part what offence it is and where Censurable I leave it to the world to judge upon whâ—t hath been formerly spoken there being no absolute case of necessity to plead for their absence as I could ever yet perceive and the Lawes and Statutes of this Realme being peremptory in the mulct and penalty thereof The Kings presence representative by 33. H. 8. supra Now peradventure it is necessary to know in what the Royall Assent Personally or Representative is required and that is plaine in enacting any Law or Statute to make it perpetuall to oblige the people I conceive the Royall Assent must precede yet the Royall Assent cannot in Justice be denied neither with a Le Roy s'duisera suspended unlesse satisfactory reasons be given for the same unto the Parliament for the publike good as also the confirmation of them is no act of transcendent grace but of right and Justice as hath been formerly spoken The power of the Parliament to make Ordinances paralleld with this power in inferiour Courts Nay further it must be granted that as incident to this great Court they may make Ordinances to binde the people Sedente Parliamento without any royall assent unto which Ordinances although not grounded upon the positive Lawes of this Kingdome the people ought to yeeld obedience as well as to the Ordinances Ordinances binds untill definitive Judgement though not transacted in plena cur Orders and interlocutory Judgements in other Courts of Justice unrill definitive or finall Judgement which is for the most part in Plena curia when the Court is full but that other power is used although but part of the Court be then sitting and bindeth all persons untill finall Judgement it is also plaine that in other Courts their Orders Ordinances Ordinances binding though not grounded upon the positive Lawes and interlocutory Judgements are
in Fayres or Markers is the forfeiture of their Armour and theâ—r boâ—y imprisonable by 2. E. 3. ca. 3. 2 E. 3. ca. 3. and yet to evill intention appeares and so are other Statures that no man shall goe or ride armed upon penalties of Fire and Imprisonment except the Kings Ministers in doing their Office and I take it these Statutes last mentioned The King â—â—niall servants are here onely intended his â—â—nisters of Justice are specially here named by themselve Vi. infra though ancient are still in force Indeed the Kings servants are there spoken of in one of these Statutes and withall there are these words subsequent in presence of the King so that the Kings servants in his preseâ—â—e may goe or ride arâ—ed but those either for their paucity were not then nor are now considerable or otherwise they were inabled in those times of danger for the preservation of the Peace and the Kings Person against disturbers thereof By the ancient Law and Custome of the Parliament a Proclamation ought to be made in Westminster Hall That no man upon paine to lose all that he hath should during the Parliament in London Westminster or the Suburbs thereof weare any privie Coate of Plate or goe armed and the reason hereof was That the Parliament should not be disturbed nor the Members thereof who are to attend the arduous and urgent businesse of the Church and Common Wealth should not be withdrawne from their service Thus you see how tender the Law is of any Warlike appearance What shall we then thinke of great numbers of men in a Warlike Assembly armed not in London Westminster and the Suburbs thereof but even at the doores of the Parliament environing the House of Commons as it was since the Commencement of this Parliament Object But it is urged That the King is compelled to raise an Army for his owne necessary defence his Royall Person Honour and Estate all which are now endangered and exposed even to ruine and destruction Sol. Admit the truth of these aspertions unquestionable Who shall be Judges of these dangers and the inevitable necessity of raising an Army Surely no particular or private persons No particular person The Clergy no Judge no not the Clergy themselves who have in these unhappy times some few onely excepted broken downe the wall of partition and separation I meane have intruded upon the Civill Government and have obtruded upon the People in their Writings and Sermons those Positions and Maximes which admitted would shake if not ruine the very basis and foundation of this famous Government The King nâ—â—udge or at least no sole Judge Many they are which I could here mention but I conceive it done out of ignorance being not willing to discover errours as I hope not wilfully committed Nay the King himselfe cannot be the sole Judge so hath it been declared and adjudged in a like Case the very same in Law and reason this Parliament in a full Session when the King and all the Members were then present in M. Hampdens Case concerning Ship-money where the Opinion of the Judges The King no sole Judge of the danger of the Realme together with the Judgement given in the Exchequer Chamber That the King was sole Judge of the danger of the Kingdom of suddaine invasion of Enemies or the like and might compell his subjects to provide ships for so long time as he should thinke meet whereby the subject was forced to contribute great summes of money was reversed damned and sentenced as erronious and illegall destructive to the liberty of the subject and contrary to the Fundamentall Lawes of this Realme Now if any man shall say Object It is for the defence of the Kings Person and that even the Lawes of Nature and reason warrant and surely the Lawes of this Kingdome repugne not the Lawes of Nature and reason Sol. I answer that the Lawes of this Realme provide sufficiently for the Person of the King and for the security thereof it being high Treason by Law to compasse or imagine by any overt Act the destruction of the King although not effected not so in the Case of the subject Further if you consider him according to the Law of Nature then the case is no more but as the Case of a private man or person who may Vim vi repellere even by 2 multitude of persons King intends the politicke capacity not the naturall But our Inquisition at this time is not in this capacity but our question is of a King constituted by Law and the policy of man and therein that capacity he can doe no more then what the Law doth warrant Id Rex potest quod de jure potest and therefore you see an end of this objection Then to revert to our Discourse by Law it seemes the Parliament are the Eyes of the Body Politick The King no Judge or no sole Judge in Parliament by the law of inferiour Courts proved and are the onely great Counsell of the King and Kingdome whereof the King is the head and they are to Judge of all dangers to the King or Realme and the King himselfe is not the Judge and we see it is so in all other Courts of Justice the King Judgeth not nor medleth at all either in matters concerning himselfe or any other there being Judges by Law appointed for that purpose by whose Wisedom the King seeth discerneth discovereth redresseth all errours grievances or injuries private or publike particular or generall how then can the King be sole Judge in this Case of the necessity of raising an Army although it were in his owne just defence without his Great and High Court of Parliament approve of the same Is not this a violation of the Law and Government established Ought not they at leastwise to concurre in judgement before any such Forces or Armies of men can be raised and this onely by the Law of inferiour Courts The consideration hereof being of such high concernement that the proceedings and actions of all other matters seeme in comparison hereof not at all materiall nay if the King might be sole Judge in this Case although the danger reall and just this mischiefe and inconvenience would follow Great mischiefe and inconvenience of the King should be sole Judge viz. of the danger of the Realme That the King in an Act of such high consequence for the generall good contrary to his actions and proceedings in all other Courts even in matters of least moment as is before mentioned might upon surmise or suggestion of danger to his Royall Person without any further consultation with his high Court of Parliament raise and maintaine an Army of men how numerous soever and justifie the same as warranted by the Lawes of this Realme to the great impoverishment of the subject and not without great perill that I say no more even to the very Principles of this well compacted government Shall we imagine such a
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 Milita positive or by the positive Law limited and here onely that part of the Militia that hath relation to the positive Lawes I will open unto you and shew you even here the transgression of the Law positive it being not onely against the ancient Law of the Land but llkewise against a Stature unto which his Majesty hath given his Assent this very Sessions of Parliament The ancient Law of this Land is mentioned in the Preamble of this Statute viz. That none is compellable to goe out of his Shire to the Kings warrs unlesse it be in case of necessity of sudden comming in of strange enemies into this Land as some Sratures recite the Common Law and other Statures wâ— out the word necessity in the reciâ—â—â—s â—ut â—e Common Law but it is not at all materiall as you shall see hereafter The body of this Statute is for the releefe of Ireland against those Popish Rebells An Act for the releefe of Ireland who in a short time have made a populous and rich Kingdome even almost desolate You have heard the Common Law which was to secure the Kingdome in case a Parliament could not so speedily be called for the defence thereof but it is plaine that hereby is intended Of necessity some Statutes recite the Common Law thus others not that no man is compelable to serve the King in his warres against the representative Body thereof for that is not for the defence of the Land but for the ruine thereof they being in no case to be conceived enemies unto the King or the Realme but as the supporters pillars and maintainers of all justice and peace in this Common-wealth The Common law now in force toâ—ching the Militia extendeth onely to Tenures or Contra is It appeareth by this Law likewise that none are compellable to goe out of their Shiâ—es to the Warres although a suddaine incursion of strange enemies but onely those which are bound by Tenure or Contract and that none others can be forced to serve the King in his warres unlesse by grant of Parliament The statute of Winchester seeing downe an Assiâ—e for land and goods and that without relation to Tenures or Contractâ— is now not in force Vid infra and this appeareth evidently by the Statute of 4. of H. 4. 13. a very weighty and worthy Act for our purpose for that Statute reciteth and confirmeth all the Statutes formerly touching this particular as namely 1 E. 3. 5. 18. E. 3. 25. E. 3. which said Statutes recite the ancient Common Law and this Statute with the others are but declarat◠〈◊〉 the Common Law so that open tâ—â— estrnce of this Statute you open the Common Law and Statute Law touching this particular Now it appeareth plainely by the exception in this Statute 4 H. 4. 13. The exception of Services and Devoires other then Millitary was not of necessity but to satisfie those who were not so conusant of the lawes for sure they had not been included the stile of the Act is of millitary services onely and by the exception likewise in the Statute of 25. E. 3. that none shall be charged to finde men of Armes but onely those that hereunto are bound by Tenure or Contract for the exception alwaies is parcell of the premisses and relateth in Judgement of Law thereunto therefore the enacting part of these Lawes must be onely meant of Military services in respect of Lands holden by such services or devories and no otherwise unlesse you will make the exceptions which are as it were explanations of the mindes of the Law makers meerely frivolous Nota. The exception is of services due by Tenure therefore so must be the body of this Act intended This Assize was some ancient law antiquated or not in force revived by Winchester bâ—t Winchester being repealed this Assize is of no foâ—â—e It appeareth thus by the meaning of 1 E. 3. cap. 5. before spoken of that the Common Law recited must be intended onely of Tenures or Contracts And further these words otherwise then hath been done or used in times past for defence of the Realm doe partly relate to the Statute of Winchester which Statute sets downe the Assize or proportion of Armes for Lands and goods and withall is but declaratory of the Common Law or Statute in this but it proportions the finding of Armes in a way compulsary which before was not so so that you see the result of all is this none but those which are bound by Tenure or Contract are compellable to serve the King in his warres within the Kingdome or without and that they onely in case of suddaine invasion Rebells are not enemies as the words of the common law are so that it may be further urged upon this Law viz. the Common Law before recited that not onely against the Parliament but even to suppresse any private insurrection or rebellion of the Subject within the Kingdome the King cannot force the Subject out of his Shire for the words are as formerly you have heard them unlesse in case of suddaine comming in of strange enemies c. and to make the vigour and force of this Law without doubt such is the judgement of this Parliament in recitall of this Law as you may perceive Instit Sur. Littleton The Tenure of those that hold by Escuage explained This law viz. the common law recited in 1 E. 3. 5 Service by Eâ—cuage to be performed out of the Realme Sir Edw. Coke ibid. 1 E. 3. ca. 5. good law none shall be forceâ— c. for Escuage or forraine service is not compulsory by the positive law but by Parliament Sir Edw. Coke f. 69. perhaps is misprinâ—ed in these words if the Tenâ—re be tâ— goe into William Hiberniam c. and the words should be thuâ— if the Voyage Royall be to goe c. I leave it to the judicious The Law may seeâ—e to include a generall Tenure by Knights service as a speciall as to me it seemeth but if so not materiall since Nulla sequatur pena Sir E. C. f. 69. in his Institutes where he saith that Scocia is put but for example seemeth to incline that the law is intended of a speciall Tenure Sir Edward Coke seemeth in his Institutes to say That he that holdeth his Lands by Escuage is bound to attend the King in his warres out of the Realme contrary to this Law formerly recited but his meaning must either be intended where the Tenure is expressed to that purpose as to goe in Scotiam Hiberniam Pictaviam c. and then it is nothing to impeach this Law as being intended of generall Tenures by Knights service c. or otherwise if his intention be also of a generall Tenure by Knights service such as draweth unto it Escuage yet if the Tenant attendeth not Nulla sequatur pena by Law untill the penalty of Escuage for non attendance be assessed by Parliament so that you see upon 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
I answer Sol. The opposite power or faction hath been for many Ages prevalent and where the regall Power hath gained from the the Subject it is hard and with much difficulty to be reduced notwithstanding there havâ— not wanted in all Ages Champions and Assertors of these truths Tempore R. 2. H. 4 Therninge chiefe Justice nostrâ— tempore Crooke Hâ—tton Weston c. Illustre Parliamentum nunc apud Westminist yea even in our owne times there have been Propugnatores acerrimi Witnesse the Case of Mr. Hampden formerly remembred in the damning of which Judgement I thinke all these illegalities appeare which had it stood in force property in Estates had been a meere nullity yea the Axe was laid to the very root the subversion of Justice and Government Nota. yea your high Court of Parliament had been of no use for the Subject since upon the Kings owne personall judgement and opinion Viz. by thae judgement for ought that appeares otherwise for he that was the sole Judge of the danger of the Kingdome might have imposed what Taxes he pleased upon his People and upon refusall have inforced the paiment thereof a slavish and barbarous judgement nullifying upon the point all the positive Lawes of this Kingdome and making the Government it selfe meerely Arbitrary Preâ—ogative I should likewise here give you a touch of the Kings Prerogatives here as pertinent to this former Discourse for some may say The Liberties of the Subject are much insisted upon here but where are the Kings Rights and Prerogatives hath he none at all Therefore to omit the numerous Prerogatives of the King partly mentioned in that ancient Statute of Prerogativa Regis or dispersed in the legall Records or Annals which to present unto you would be too great a labour and needlesse 17 E. 2. Devant Ante diem clauso componet vesper Olympâ— Wardships Liveries Primer-seisin Marriages reliefe fines Pâ—â—â—aliener Customes Mines Wrecks Treasure trove Escheates Forfeitures cum multis aliis c rights and prerogatives done al Roy pur defend soy mesme son Realme of great benefit to the Crowne and the respect of these the subject to be free from Taxes and Impositions Definition of the Prerogative Rules restrictive of the Prerogative I will onely in a way compendiary shadow them unto you by their rules and restrictions which like the skilfull Pilot steere the course of this great Ship the Royall Prerogatives in the turbulent seas of humane affaires therefore in the first place note that the Kings Rights and Prerogatives are differenced in Law his Prerogatives are onely incident to the Crowne his Prerogatives are his rights but not â—onvâ—â—so The definition of a Prerogative is a power preheminence or priviledge which the King hath over and above other persons and above the ordinary course of Law in the Subjects case in right of his Crowne his Prerogatives are either personall or by reason of his possessions or having relation to both All of them have these restrictions they hold not in any thing injurious to the Subject they must be by prescription oâ— usage beyond all memory to the contrary no Prerogative can Commence at this day without authority of Parliament To give you some instances Basketviles case sâ—venth report The King hath title by Laps to present to a Church he suffereth a Presentation the Clerke is inducted and dyes now the Patron shall present not the King and although the Prerogative be that no laches or negligence shall be impured to the King Nullum tempus occurrit Regi faith the Statute yet laches here shall be imputed or otherwise the subject should be injured in his right the King had but onely the first or next presentation given him by Law therefore he shall not have the second Viz. By Writ certif otherwise Perpaâ—â—ll or letters act of force The King may take a man into his protection by his Prerogative to free him from Suit and molestation if he be imployed in the Kings service and so legally certified but he cannot protect him that is in â—aâ—â—â—tion or against whom an Execution is to be granted at the Suit of the Subject because that would be tortious to the Subject and dispossesse him of that interest which the Law hath vested in him Royall Proclamation a Prerogative He hath a great Prerogative indeed viz. to make Proclamations Sub pena which no Subject can doe but this Proclamation must be in supplement or Declaration of a Law already in being not in derogation of any Law established nay I conceive he cannot command any thing by Proclamation at least Sub pena it there be no Law in force to warrant it although in this particular his Proclamation be in nature of a Law remediall preventing some great mischiefe at present by no positive Law redressed What shall we then thinke of those frequent Proclamations of late times denouncing men Traitors before the Law hath so adjudged them contrary to the knowne rules of Justice yea men the Members of Parliament which cannot be legally judged Traitors but by the Justice of that high Court as formerly you have heard yea divers others also no waies sentenced I assure my selfe in any legall way so to be To the second rule or restriction of the Prerogative I need say little authorities are so plentifull If Lands come unto the King by Purchase in these he hath no Prerogative as in those he holdeth Jure coronae by great antiqui y. The King hath no Prerogative in the Militia Nota. These concerning the Militia the negative voyce in Parliament cannot be Prerogative they are not within these rules or limitations for if the Prerogative should be of force for the Militia it would be injurious to the Subject it should also commence by usage within memory contrary to the Statute of 28 E. 1. 25 E. 3. 4. H. 4. 13. c. Vid. ante yea to other more moderne Lawes So likewise the negative voice in Parliament it would not onely be injurious to the Subject but even to the Lawes and Government it selfe Mag. Char. ca. 29. making them all meerely Arbitrary yea contrary to Statute Law as some good opinion hath been Thus you have a briefe view of the Prerogatives rather shewing you what they are not then what they are which I was moved unto for the satisfaction of those who have not so deep insight into the Lawes Perpaucos arbusta juvant humilesque myricae And now I have passed through the enemies Quarters that is to say the strength of their Positions and Assertions by which they have misled a great party of this Kingdome I will a little breath and deliver unto you the summe of all and run over the heads of their Principles Their first The materiall cause of Parliament as you may see in the beginning of this Treatise strikes at the root and branch of Parliaments the materiall cause thereof that is the
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
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