Parliament inconsistent and differing yet both just in their proproper motion Vide postea if we should admit the tryall in inferiour Courts this mischiefe would follow that their Judgements might peradventure be legall yet not just it being lawfull for a man to open his Conscience here so farre without dread or feare in any matter touching the Common-wealth or any particular person in a Parliamentary way which in other Courts would be held a crime and by the positive Lawes of this Kingdome punishable This being so the vio ation of this priviledge rests to be proved and truly I am sorry to enter into the proofe of it it reflecting somewhat upon the Kings most excellent Majesty whose Royall Person I shall ever unfeignedly honour But surely it is the unhappinesse of Kings to be abused by evill Counsell and the errour is not to be imputed to the King but to his Ministers But since I must speake it is Soli lucem inferre to hold a Candle before the Sunne so evident it is it needeth no proofe at all for is not the breach of this priviledge in fresh memory when the now Members of both Houses should have been taken from them in an unusuall way I will not say by violence if they had been there present to the great feare and astonishment of that present Assembly but I will say no more as supposing this Act unjustifiable however not yet absolutely disclaimed for ought that I could ever yet see but his Majesty hath declared in print that he would proceed against them in an unquestionable way Vnquestionable way by these words not pronounced innocent but rather criminous A generall Declaration of the proceedings of this Parliament which words in what sence they may be taken I doe not for my part certainly know as being obscure to my understanding and not to all intents satisfactory which violation I take it hath been since pursued in his Majesties Declaration of the twelfth of August 1642. in offering to prefer an Iudictment upon the Statute of 25. E. 3. against divers Members of the House therein named and I take it his meaning is not in Parliament but of this I will speake no more Another right of Parliament is this That every Member of both Houses shall upon Summons come to the Parliament unser the paine of Amercement and other punishment as of old hath been used to be done as appeareth by the Statute of 5. R. 2. cap. 4. and also by the Statute made 6 H. 8. cap. 16. It is enacted that no Member of the House of Commons shall depart from the Service of the House without leave of the Speaker of the House of Commons and the Commons in Parliament Assembled which license shall be entred in the Booke of the Clarke of the Parliament upon Record under paine of losing those summes of Money which they should have had for their Wages by both which Statutes it doth appeare that departure from the House of Parliament without leave is a Crime and punishable of ancient times 5 R. 2. Of the Common Law declaratory for so it appeareeh by the first of these Statutes which was but declaratory of the Law formerly used and that the punishment was Fine and Imprisonment and sometimes Arbitrary appeareth by ancient Authority of Law But it may be objected Object that by a clause in the Statute of 5 R. 2. before named it is no Crime if the Member of Parliament so absenting himselfe can reasonably and honestly excuse himselfe to our Lord the King so that the King by this Statute is made the sole Judge of the offence and if the King License or Command the absence of any Member of either Houses it is sufficient To which I answer Sol. That the Statute is not to be intended in that sence that all Parliaments may be made frustrate and void at the will and pleasure of the King by his License or Command of the absence of any Member of Parliament without great cause for the same for that were not reasonable and honest as the words are Et veâ—ba accipienda cum effectu as the Law saith and otherwise the very essence of Parliaments would be shaken by such exposition But to make a full Answer to these words Our Lord the King before mentioned in the Statute are in Law taken for the King in his Politick Capacity not in his Personall and so it is no more then if the words had been to our Lord the King in his Court of Justice in his high Court of Parliament and so the Court of Justice is the Judge and not the King personally and so is the Law frequently takan for to give you an instance or two and that in a Statute Law as this is Merton cap. 3. Dominum Regem the Kings Court of Justice in the Statute of Merton cap. 3 are these words Statim capiantur in prisona Domini Regis detineanter quousque per Dominum regem vel alio modo deliberentur Here the words Dominum Regem our Lord the King are intended the Court of Justice of our Lord the King and not the Kings Person and so in the Statute of Marle-bridge Marl. cap. 8. Cum Domino â—ege the Kings Court of Justice Perceptum Domini regis perceptum curiâ— cap. 8. the words there are Et hoc per finem own Domino Rege faciend per transgressione c. Here cum Domino Rege is intended the Court of Chancery or Kings Bench and so is perceptum Domini Regis in that Statute taken for the command of the Kings Court of Justice and not for any other command of the King whatsoever In miserecordia Domini Res 1. curio Domini regis Statute enacts that Fine and ransome shall be made at the Kings pleasure intends the pleasure of his Court of Justice not his persons pleasure The Law is cleare in these Cases which are the very same in these words with the Statute 5 R. 2. before named Further because this objection seemeth great I will give you one instance more in a Statute latter then any of these the Statute of 25 E. 3. an Act so highly and worthily prised and much made use of at this time by the Kings Majesty the words are these Ou si home levira guerre counter nostre Seignior Le Roy en son Realme c. Here the words Nostre Siegnior Le Roy are taken for the Lawes of our Lord our King and by good judgement likewise as to me it seemeth not for any leavying War against his Person for that is included in the first branch of this Act Si home compassa ou imagine c. The Lawes and the Courts of Law or Justice intend the same thing therefore I conclude the words Our Lord the King must necessarily be meant in this Statute of 5. R. 2. the Kings Court of Justice or the Lawes of his Court of Justice to wit His high Court of Parliament who onely are
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
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
possession of any Castle or Fort. The Sheriffe hath his authority from the King viz. by Statute 9 E. 2. unto which the King hath assented to defend any Castle defencible with the Militia of the County therefore if the Sheriffe or any such like subordinate authority from the King hold a Castle defenceable it is in judgement and speech of Law the Kings possession of the same but of this sufficient For the great Offices The great Offices of the Kingdome the disposition of them did anciently belong unto the Parliament as their rights and that Master Lambard a learned Lawyer in his Archeion of the Courts of Justice testifieth whose words are these The great Offices anciently pertaining to the Parliament That the Keeper of the great Seale was wont to be elected by Authority of Parliament and he saith further That he had read that Ralph Nevill Bishop of Chichester being Chancellour to King H. 3. being Commanded refused to yeeld up his Seale unto the King when he required it affirming that as he had received it by the Counsell of the Realme so he would not without like warrant resigne it againe And in the daies of the same King it was told him by all his Lords spirituall and temporall That of ancient time the creation and disposition of the chiefe Justice the Chancellour and Treasurer belonged to the Parliament Thus farre Mr. Lambard Dr. Cowell also in his Booke called The Interpreter whom I nominate at this time as a Royalist in this yet he citeth a President in the time of King H. the 6. who directing his privie Seale to Richard Earle of Warwick thereby to discharge him of the Captaine-ship of Callis the Earle refused to obey and continued forth the said Office because he received it by Parliament and the inference of Cowell hereupon is false that either the King must be above his positive Lawes or else he is no absolute King for he is an absolute King though not above the Lawes for his Government were then meere Tyranny Vid. Dâ—vant f. 16. 6. also the Kings of this Nation are nor in that sence absolute Monarchies for this is a mixt Government partly Politicall partly Monarchicall as that worthy Knight Sir Thomas Smith in his Common Wealth of England affirmeth and this I have remembred before Further Sir Edward Coke in his Magna Charta f. 558 559. saith That anciently Offices either for the preservation of the Peace or execution of Justice because they concerned all the Subjects of the County were not disposed of by the King but by the Free-holders of the County chosen in every severall Shire by the Kings Writ now if it were so for the publke Offices of the County the same Law and reason telleth you that it must be so for the publike Offices of the Kingdome either it must rest in the people or their representative Body Object But it may be objected That Sir Edw. Coke saith in the samâ— place that the Statute before named of the 28 E. 1. is altered by 9 E. 2. and so this Office of the Sheriffe being a publikt Office for the preservation of the Peace and execution of Justice also is not in the Subject or their representative Body Sol. To which I answer shortly because it hath been formerly debated Altered not abrogated or â—ullified That Sir Ed. Coke is thus to be intended that it is altered partly as to the election of the Sheriffe in the Exchequer if the Judges pursue the same Statute and the Free holders of the County doe not elect before them and so that authority is good Law We must make such interpretation that every learned mans judgement may be honourably esteemed and be effectuall It likewise appeareth by the same Author that anciently the Conservators of the Peace or Justices of the Peace were chosen by the People and so are many Offices at this day the election of the Officers is by the Free-holders or people the Kings Writ issuing forth first for that purpose Vsage of no forcâ— against a statute or judiciall record Now what Law hath taken away those from the people or their representative Body Verily none that I know no act Judiciall or Record whereby the right of the Kingdome is expresly given away or if this did appeare No statute gives away the Subjects right expresly in the disposition of great Office or of the militia or if it should be granted that usage recorded in the Kings Case were sufficient yet in these particulars it will not give a right unto the King and if he hath time out of minde disposed of them yet this will not availe if by any matter of Record the right of the subject appeare as it doth by Statute Law before remembred and by legall authority Nota. then usage is invalid as the learned in the Lawes know The Act of 28 E. 1. settles the Militia in the subject as you have heard formerly here the right of the subject appeares the Forts Navie Castles and Magazines depend all upon the Militia either the absolute or generall power of the Militia or the Militia positive or regulated by the positive Lawes both which are by Law vested in the People or the representative Body the Parliament as you have heard formerly The great Offices of the Kingdome appeare by learned and legall authority afore mentioned in the Subject and their representative Body both in right and in disposition What shall I say more if this be not sufficient to make the Subjects right cleare in this particular Prescription of no force against â— statute Then although the King hath by usage almost gained a perpetuity in them yet this will not serve no prescription or use will be of force against a Statute or judiciall Record for that is proofe to the contrary as the Law saith And the Kings Case is all one with the Subjects in this Regall use is of no force against a Statute or judiciall Record for as the rule of Law is true Nullum tempus occurrit Regi prescription is not good against the King in many Cases so it is as true Nullum tempus occurrit legi no usâ—ge or prescription is of any effect either in the Kings Case or Subject against the Law appearing by Statute or judiciall Record and I hope no man will say but that the Rolls of Parliament are judiciall Records Vsage of no force against claimes and interruptions besides our legall Annals or Bookes Further if usage shauld be admitted yet here have been divers clamours and interruptions of Parliament yea dispositions by them of those great Offices and those other particulars and then necessarily usage is not of force as the Law saith for the Parliament claimes unto the great Offices of the Kingdome yea their disposition of them from time to time I have spoken of before as also of the Subjects disposition of the Militia Vsage gaines no inheritance or right of claime or
words viz. this shall be the right of the Kings c. From this place of Scripture make you Tyranny the right of Kings for so some of you tender the words and so Ex consequenti the Ordinance of God is Mos Regis jus Regis Is it the right of Kings because the Act of Kings then Murther Adultery c. are the right of Kings and the Ordinance of God so God himselfe is made the Author of all wickednesse a most impious and detestable opinion Yea doth not the practice of the Kings of Israell manifest the same Did Ahab take away Naboths Vineyard as his right without any further proceedings Did he not by pretence and colour of Law take away his life and Vineyard Did he not suborne Witnesses against him This man blasphemeth God and the King was he not much perplexed troubled in minde at Naboths deniall All these things surely had not been if it had been lawfull for Ahab to have taken his Vineyard from him yea what saith God unto him for this Hast thou killed and also taken possession Is this Divine approbation Are either of these Acts allowed or not plainly reproved hast thou taken possession implyeth clearely that Ahab taking Naboths Vineyard was not Gods Ordinance or Law but the wicked abuse of Divine authority Further I conceive upon the Acts of David and Elisha mentioned in the Scriptures it is lawfull to resist Tiranny and abused authority yea that it is lawfull to oppose the Regall power Distinction of the regall person and the regall power by the law of this Realme though not the Regall Person but to leave these things to those that are learned in Theology we will search a little the Lawes of the Kingdom Doe not our Lawes make the same distinction betweene any power ilâ—egally raised by the King and his Person May not the one be lawfully resisted not the other Hath not the Law appointed the Militia of the Kingdome to suppresse any Ryots illegall Assemblies yea though commanded by the King I suppose that may be made a parent enough for put the case that numbers of people being Insidiatores viarum agrorum depopulatores gaine the Person of the King yea his protection under the great Seale Object shall not the Magistrates and Ministers of the Law execute the Law against these persons notwithstanding the King be present with them Sure they may and ought But peradventure you wil say This case is nothing to our purpose they that have now adheared to the King are good Subjects no Delinquents as your instance formerly imports Sol. I answer the reason of the Law is the same in both Cases yea they are delinquents in both Cases that take up Armes without lawfull authority and further they are Traitors also though they aide and assist the Kings person as you may perceive by the former discourse but I will exp laâ—e the Law a little further in this particular 2 E. 3. 8. 14. E. 3. ca. 14. There are two or three severall Statutes in the Raigne of E. 3. and of other Kings of England containing these words or to this effect That the Judges or the Kings Justices shall not delay to doe justice and right yea they are commanded so to doe even in the Kings Case notwithstanding the King by his great Seale or Privie Seale command the contrary But we then the case that the great Seale is sent to stay the course of Justice and the Meâ—seâ—gers thereof be numbers of armed men shall not the Justices oppose this illegall power Shall they not apprehend these persons as Rebels unto the State and Government if they shall attempt the execution of this regall command by force or violence nay The King by divers statutes disabled to raise any Armies of men or to come in any hostile manner to disturbe justicâ— I conceive they are subjâ—ct unto great and severe censure if not Capitall for appearing in Armes in disturbance of justice although they offer no force or violence at all but deliver their Message to the Court. And is it not apparent that these persons shall be empeached as offenders Conâ—ra coronam dignitatem Regis These men Traitors by law though the King present with them f â—n any hostile way they execute his illegal command or indeavour the same notwithstanding the Kings Seale yea if the King shall be present with them this will not aâ—ter the Case the Judges are to execute the â—aw in the Kings name against them and further to pronounce them Traitors if in forceable or hostile manner they shall endeavour to interrupt or hinder the power and authority of the Law here you see the distinction which the Law makes betwixt the Regall person and the regall power Nota. The Kings person not criminous by law and the reason The Kings person is subiect to no debility or imperfection in judgement of Law and therefore no crime or offence can be incident to his person witnesse the Attainder of King H. 7. before he was King resolved by all the Judges that Ipso facto by attaining the regall dignity all attainders of Treason or any other offence were purged and that there needed not any reversall of them in Law and this appeareth in the legall Annals of the said King you may plainly perceive the Kings person uncapable of crime by the Law of this Land his person is sacred and not to be touched with violence yea the Law medleth not at all with his person as being innocent of all crime Regall imputation as to any legall imputation but the power of the King Nota. in what condition it stands you may easily see Which Henry the 7. wisely fore-seeing procured that Act 11 H. 7. ca. 1. before mentioned to exempt the attendants of his person as also of his successors from impeachment knowing that by Law they might become offenders although they followed his person in the Warres and did him true and faithfull service for the defence of the King and the Land The true reason why this act of 11 H. 7. ca. 1. was made because his Title unto the Crowne as the times then were might not prove firme for if his Title by Marriage should have failed Nota. as even the state of Princes is subject unto humane casualty then his attendants in the Warres upon his Person should be in danger of judgement as being raised without lawfull authority so as by this Act if a Perkin Warbecke should attaine the regall dignity lawfully Lawfull viz. by consent of the Realme by authority of Parliament his Attendants in the Warres were by this Act free from impeachment if they declined not from their duty of Allegiance in this Statute mentioned which by Law had not been so if this Act had not made this speciall provision Now you may view plainly the Kings Person and his Power distinguished also you may see in the exposition of this Statute formerly mentioned the same
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
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
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
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
power and authority by Law vested in the King in derogation of his high Court of Parliament as makes the rules of Law and Justice meerely Arbitrary as in those particulars afore specified we must needs grant and yet in inferiour Courts the same rules in Arbitrary Government no where warranted or allowed but contrary wise their proceedings obliging both King and people to a mutuall observance by a legall power and authority to that purpose setled in them This were repugnant even to sence Now to summe up this point if the King cannot leavie or maintaine any Forces by Sea or Land as is formerly proved though for defence of the Realme or his Person upon his owne Judgement or apprehension of danger What shall we then say to this effusion of bloud the Authors and fomenters of this intestine Warre shall they be protected Surely at some mens hands this bloud will be required and though they may here escape yet righteous judgement must be expected hereafter Papists inabled nay compelled to beare Armes contrary to the lawes viz. 3. Jacobi 5. Also this matter seemeth more to be aggravated since in this late great and numerous Army of the King those persons who are prohibited by Law to come within tenne miles of the Court disabled by Law to beare Armes within this Kingdome contrary to the Kings owne solemne Protestations made unto his Parliament are enabled nay commanded to beare Armes to the destruction of the Kings subjects I meane the Popish Party in this Kingdome whose doctrine and practises both to King and State in most execrable Treasons and impious Conspiracies hatefull both to God and man are sufficiently manifest to all the world and need not here to be remembred Now there being such a cloud of Witnesses as is afore specified Common Law Stat. judgement of this Parliament proving the Armies Illegall viz. the Common Law the Statute Law the Judgement of this Parliament in Master Hampdens Case the very same in Law and reason convincing any capacity in the certainty of this truth that these Armies now maintained by the King are not warranted by Law What shall I say more yea what shall we thinke of this Commission of Array Commission of Array destructive of Parliaments upheld by our opposites What is this likewise but a meere usurpation a plaine violation of the Lawes and what would follow if this doctrine should be admitted but a finall dissolution of Parliaments For what would they then serve for if Armies of men may contrary to the positive Lawes be raised without them They would be at the best but as the tyrannicall Bishop of Rome formerly boasted Puteus inexhaustus an ever springing Fountaine to satisfie the ambitious desires of the mighty with the riches and wealth of the people nay peradventure Aides Taxes and Impositions would be had at pleasure and the people by force compelled to slavish obedience as we have found by sad experience too dearely bought in a branch of these Dominions the unfortunate Kingdome of Ireland where the insolencie of the Souldiers was such yea even in the times of Peace in the time of the late Earle of Strafford that the Lawes were sleighted and trodden under foot and the Paper Decrees of the Castle Chamber put in execution by these Agents in Armes forcing the poore subject to obey whatsoever was in this wicked and illegall manner commanded what difference now betwixt the Turkish Government and this new devised Monarchy of these Dreamers the lives and estates of all men being subjugated to misery and inevitable destruction but God in his good time discover these evill instruments and bring them to Justice who labour to involue so great a Prince into inextricable errour and calamity I promised moderation therefore I will say no more but will divert my meditations to the period of this discourse as thinking I have satisfied mine owne conscience it not others in so large a debate hereof Object There is one great Objection made by the adverse part which if answered this particular is satisfied And that is By what authority are the forces of the Parliament raised Seeme they not as illegall as unwarrantable Sol. To which I answer That the Parliament themselves in their Declarations which I have seene make it onely on their part defensive there being an Army intended against them full foure yeares since the Army raised against the Scots and afterwards for this purpose implyed to awe this Parliament and to force them to consent unto such Articles framed by evill persons touching the Government of this Kingdome which appeares by the Depositions of divers persons of note and quality annexed to a Remonstrance of Parliament 19. Maii 1642. which sure was long before an Army raised by the Parliament or thought upon the King being then present at Parliament and I will not say it was by his privity or knowledge Onely thus much I will say That this Act was alone sufficient to breed jealousies and feares in the Parliament and to provide further for their defence and security Afterwards this was increased by the Kings comming to the House of Commons in that unusuall manner to demand the Members affrighting the Assembly there present who upon request were denyed a Guard Afterwards his Majesty at Yorke at Nottingham had a considerable Army of men to the number of foure or five thousand as I have credibly heard by those that were then there present and all this while no Army of the Parliament appearing that I did heare of only speeches to that purpose Now upon all these proceedings the Parliament for their owne defence the Kings Royall Person and Authority the defence of the rights and liberties of the Subject raised an Army under the command of his Excellency Rob. Earle of Essex which whether or no defensive or justly done I leave it to the world to judge upon that which hath been formerly spoken But to make a more full answer and to square my course in these Treaties by the positive Lawes to stop the mouthes of clamorous people The raising of Forces by the Parliament justified as a Court of Justice The Parliament and either of the Houses must be admitted to have supreme power of Judicature without the Kings Personall presence as the Rolls and judiciall proceedings thereof sufficiently manifest as is formerly spoken and if so then they have power to Summon Censure and judge all Delinquents yea force them to submit to the Justice of that high Court upon contempt by enjoyning Posse commitatus yea Posse Regni to execute their Commands against all disobedient persons unto the Justice and Government of this Kingdome and this meerely by the Law of inferiour Courts as I have formerly remembred therefore this shall be sufficient Object Legislative power just There is one thing that scruples the mindes of Malignants much and that is That the Parliament have hitherto proceeded by a meere legislative power and not by the positive Lawes and
that they instance in the Case of the late Earle of Strafford Sol. To which I answer first That if they did so it were but just according to the Supreme power of that Court but to descend to our Adversaries and to search all the Foxes Holes that they may have no refuge I take it cleere that in the Case of the late Earle of Strafford they did proceed against him but according to the positive Lawes in respect of the Crime The Common law of this Realme is in force in Ireland and all statutes enacted before 10. H. 7. in this Realme are in force in Ireland vid. Poyninâ—â— ley though his triall might seeme somewhat differing for surely either by the Common Law or by the Statute of 25. E. 3. or by the Statute of 28. H. 6. as I remember a Statute made and enacted in the Kingdome of Ireland he was justly attainted of High Treason as for the Act of Attainder and the Proviso thereof that it should be no president for the future the meaning whereof I will open unto you hereafter certainely it was not for want of Crime or Delinquency as ignorant people and disaffected falsly say For a little to debate this particular in mine owne apprehension and no further because I have not lately seene this Act. Act vid. the act â—f Attainder of of the Earle of Strafford He was at first by Bill in the House of Commons Voted a Traitor which Bill was transmitted to the Lords for their concurrence therein but the Lords being doubtfull De jure not De facto as they were at the first in the Case of the late Prelate of Canterbury to wit whether he were guilty of high Treason by the Positive Lawes or no therefore for their satisfaction he was tryed in Westminster Hall per pares by his Peeres upon their Honour according to the course of the positive Lawes a L. Steward being appointed found guilty there of high Treason Upon these proceedings was the Act of Attainder drawne up wherein the Clause afore mentioned was inserted viz. That this Act of Attainder should be no president for the future which I conceive must be intended either in respect of the Triall or Judgement it selfe The Act or Judgement includes the triall or proceedings in law and although the clause should mention the Act and not the proceedings thereupon it is all one as if it had in sence of Law for the proceedings and the triall are included and involved in the Judgement and therefore the Act of Attainder or Judgement comprehends all depending thereupon Reverse a Judgement at Law you reverse all the proceedings without any mention of them therefore they are included Now the triall was unusuall for in the House of Commons he was tried in a Parliamentary way in the House of Peeres by the Common Law in Westminster Hall Further this Clause might have a retrospect unto the Act or Judgement for the Judgement was unusuall at least not necessary in this respect he was by the positive Lawes proceeded against Judgement might have been given against him by the Parliament which Judgement should have been entred into the Rolls of Parliament Vnto a Judgement by Statute all men are privie according to the course of other Courts of Justice but to be attainted by Act this was more full and satisfactory both to the offender and to others in this respect that all men are privie and consenting unto this Judgement either personally or representatively and therefore all men must rest satisfied but to returne to our former Discourse and not to detaine you any longer with mine owne fancy as some may say This I will confidently averre he was by the Law positive adjudged a Traitor for leavying warre in the Kingdome of Jreland His person here subject for offending against a positive law viz. 25. E. 3. as also for offending against a Statute there made viz. 2â— H. 6. and his possessions in both Kingdomes cleare liable by both statutes The Act of 25. E. 3. is in force in Ireland either by vertue of Poynings law or else by the ancient common law of England which is in force in Ireland 25 E. 3. is b t of the ancient common law declaratory Câ—m â—lees of the Crowne Tit. Treason Treason against the law against the very Law it selfe for he that goeth about to alter the Law or Governement or to oppose it in any hostile or compulsary way as it was proved manifestly he did is a Traitor within 25. E. 3. and leavieth warre against our Soveraigne Lord the King as the words of that Statute are for leavying warre against the Person of the King is included in the first branch of the Act of compassing or imagining the Kings death as the learned know therefore this Clause of leavying warre against the King if taken in the literall sence were not so necessary but because of some great authority in this particular which I have seene I will conclude that if taken in the sence against the the Person of the King yet it is also and most principally a leavying warre against the Lawes and Government a secret which ignorant people know not for they thinke no Treason can be but against the Person of the King now least any man being impeached of High Treason should claime the benefit of this Act which peradventure would prove inconvenient I conceive this clause for some of these reasons added unto this Act. But some will say That his ignorance of the offence Object and his good intentions to his Majesty and the State were a sufficient Apology the which he confirmed by his Speech unto the people at his death I answer If it were so admitted Sol. yet ignoruntia juris non excusat yea the meanest crime of the meanest person is not hereby extenuated in Law but this was a crime of an eminent person the highest offence in Law and of dangerous consequence All Courts of Justice have their Seales viz. C. B. Bleâ—oy this hath â—â—one but this Ergo. There are some Rights of Parliament yet behind as namely the attendance of the great Seale necessarily upon this Court their claime and disposition likewise of the Militia the Navy Forts and Magazins for the defence of the Kingdom as also of the great Offices of the Realme all these nor any of them being the Kings unboubted right Object as he claimeth them For to begin with the Militia which some may say hath been formerly debated in shewing his Majesties raising of Armies illegall and unwarrantable and therefore here it will be but repitition Sol. I answer if it were so yet this being a matter now controverted of so high consequence it should not seeme ungratefull Que repetita placent decies repetita placebunt but to dispossesse you of this fancy you shall finde it not so the discourse of it here you will finde in a larger notion though very briefe then before it was spoken of as
had utterly abrogated the first Statute Many Cases might likewise be remembred to prove this but in our Statute there are no words but affirmative only therefore no question upon this rule in Law so in the end you see these two Statutes are not the one contrary to the other Also there is another reason which makes for us and that is that 9 E. 2. is onely affirmative as you have heard and by implication must nullifie 28 E. 1. and that cannot be as I conceive It is a high and great right of the Subjects this of the Militia it is one of the chiefest flowers of the Garland of their Liberties it cannot be divested out of the Kingdome but by expresse words The Kingdoms right cannot passe by implication it is like unto Jus regale or a Royalty of the Crowne which cannot passe by implication as the Sages of the Law know for it is the Kingdomes case and no particular Subjects case and right One Act repealeth not anâ—ther by wordâ— generall and implicite and therefore from all cases in Law that can be opposed differing 10 R. 2. ca. 5. doth not take away 13 E. 1. commonly called the Statute of Donis conditionalibus because the words are generall and implicite Statutes made by the venerable presence of three hundred men or more equall to the Senate of Rome in wisedome shall not be disannulled by such ambiguous construâ—â—ions but I will leave this to the judgement of the learned Fâ—rther if the disposition of this branch of the Militia were the Kings Right by this Statute before mentioned If the Militia by the positive lawes limited were vested in the King yet he is not the sole proprietor but intrusted with it Sub modo aâ— the positive law hath appointed yet he it not the sole proprâ—etor thereof but intrusted Sub modo to dispose of it as the Law hath appointed and you see in what manner the Law hath setled it by this former discourse The King cannot command the Militia or raise an Army either by Sea or Land without his high Court of Parliament approve of the same they cannot be forced out of their Shires but in case of suddaine comming into this Land of strange enemies by the power of the King or by his legall authority But to lay aside all other weapon of defence and argument Argument by admittance and to close with the adverse part upon this very Law of 9 E. 2. and the sence of Law upon this Act and admitting 9 E. 2. to nullifie 28. E. 1. which yet we doe nor grant for a positive truth by admittance of it Argumenti gratia onely we will debate this Statute of 9 E. 2. and open it plainely to every capacity whereby it shall appeare here is no harbour for the Militia Royall it will prove but Statio malificae carinis an unsafe refuge The words of the Statute which they sâ—rmise vest the Militia in the King are these That the Sheriffes shall be chosen in every County by the Chancellour Treasurer Barons of the Exchequer or chiefe Baron as another Statute hath it or by the Justices by one Statute and by another Statute by the chiefe Justices of one Bench and of the other Parum differunt que re concordant But to our purpose In whom is the Militia setled by this Statute It is apparent not in the King but in the Sheriffe elected by the Judges who are sworne as well to the Kingdome and People as to the King By 9 E. 2. a hare nomination no right of the Militia setled in any as appeareth by their Oath But yet further In what right hath the Sheriffe the Militia of the County I answer Here is no right of the Militia vested in any by this Statute onely a bare nomination then the right and power of the Militia rests where it did before by Law and that if the very letter or sence of this Statute be urged the right of the Militia is not in the King Object Why then a further question ariseth upon this Act in whom is the right of the Militia or in whom was it before this Statute since this Law giveth no right to any I answer Sol. The Sheriffe had the possession of the Militia The Sheriffe of the Militia possessour by 9 E. 2. the law and Courts of justice Cestuy que use the Law was Cestuy que use that is to say had the right and interest of the same the Sheriffe had the disposition of it for the use benefit end behoofe of the Law for that you shall see plaine enough for the words of the Law are to this purpose That the Sheriffe is to dispose of the Militia to preserve the peace of the County to suppresse all Riots Insurrections in disturbance of the peace to execute the Judgements and Injunctions of the Law in the Courts of Justice What is the peace of the County but the Law of the County or rather the fruit and effect of the Law The peace of the County the law of the County or rather the fruit and effect of the law Due observance and execution of the Law is the preservation of the Peace whereas on the contrary violation of the Lawes brings Warres and Division with it Not a word here but that the Law is Vsu fructuarius of the Militia hath the right and power of it the Sheriffe the disposition as Minister and Servant of the Law If it be objected that the Law saith That to preserve the Kings Peace the Sheriffe hath the disposition of the Militia The Kings peace the Kings lawes or the fruit and effect of the law That is true and yet it is nothing to prove the right of the Militia in the King for the Kings Peace is meant or the fruit and effect of the Lawes by which Lawes the King injoyeth his Peace as well as the Subject so that still you doe but labour in vaine The Law still hath the right of the Militia also the Courts of Justice especially the high Court of Parliament where the law resteth as in the Center Vsage Regall of no force in the Militia Vi. infra For Usage and the Kings disposition of the Militia De facto though it were since the Conquest that is not materiall as you shall see presently in the debate concerning the great Offices of the Kingdome Vbi eadem ratio idem jus The Militia of the Navie As touching the Navy Royall the Forts and Magazines it is apparent that either they are included as parcell of the Militia of the Kingdome or are as appendants thereunto and therefore as to them Nihil erit jam dictum quod non dictum sit prius But yet to say something of them though but repitition The Navie that is to say the Ships are things in their nature transitory in Law they may have existence or not Diversis temporibus as occasion requireth and so in the eye of the
interruption or their representative Body for it cannot appeare that the King hath by disposition of them time out of minde gained any inheritance in them in the right as we say but that there have been Claimes and disturbances by the Subject or their representative Body and then usage necessarily is of no force Object Before I conclude this particular I will answer one Objection that happily may be made touching the Militia and that is this Pleas of the Crowne f. 9. that Sir Edw. Coke saith That no man can leavie Warre within the Realme without authority from the King for to him it onely belongeth Sol. I answer because the authority is great that his legall or politick capacity may be very well here intended Authority from the King intendâ— his legall or politick capacity not his personall or naturall and not his personall and so the authority of every Court of Justice is the Kings authority the words De mandato nostro in the Writ of Melius inquirendum upon a former Office defective are intended not the Kings Personall Command but his Command by Writ issuing out of a Court of Justice so the authority of the King is in this place meant his legall authority not his Personall which every Court of Justice specially upon Record is invested withall In a literall sence the Sheriffes aâ—thority is the Kings authority Also the subordinate authority of the Sheriffe as also of every Court of Justice is the Kings authority even in the literall sence for the Sheriffe and Judges of the Court of Justice are authorized by â—he Kings Letters Patents Also they that have their Authority by Acts of Parliament as the Sheriffe hath have their authority from the King No man c. purport thus much no man of hiâ— own private authority Legall authority the Kings authority for are not all Acts perfected and confirmed with the Royall assent So that these words before specified viz. no man c. purport plainly thus much No man of his owne private authority without legall authority which is the Kings imediate authority can leavie War within this Realme Nota. If you should make other construction you nullifie the positive Lawes and even the legal course of Justice and Government So that we may safely conclude I hope upon the premisses that the Subjects right and consequently of their representative Body to dispose of the Militia and of the great Offices of the Kingdome remaineth yet undoubted even at this day These things have been judiciously debated and at large by a learned gentleman very well knowne Note that all the statutes touching this high point of the Militia are warily and cautiously penned not one law that in expresse words or by any sound Collection or inferences settles it in the King personally those statutes that the King make use of and which mention tâ—e military service due unto the Regall Dignity are in generall termes and may very well be with relation to the positive lawes precedent as 11 H 7. ca. 1.5 H. 4. 1 E. 3. ca. 5. None of them can be intended of the generall or absolute power of the militia but of that part of the Militia that is by the positive lawes limited for if otherwise you must by such construction nullifie all the positive lawes proceedâ—ng Nota. Vid. ante therefore of this sufficient You that are now learned and wise be not seduced with errour pause a while and consider with moderation what is become of the Regall power viz. the Kings personall power such as you would have it in the Militia of this kingdome That which the King will not part withall no not for any time be it to his Wife or Children so neare and deare it is unto him and of so high consequence as he professeth There are but two branches of the Militia the one generall and more absolute the other speciall and limited by the positive Lawes as you have heard For the generall and more absolute power over the Militia it is apparent to be inherent of ancient right in the high Court of Parliament onely I thinke the premisses duly considered no rationall man will deny it for the other part of the Militia limited by the positive Lawes you have heard it is vested in the Kings Ministers the Judges and great Officers of Justice by the positive Lawes not in the King personally considered What is then become of the great Commission of Array which clearely claimeth and useth both these powers of the Militia What are Armies of men raised by these illegall meanes You have heard formerly in this discourse what they are I should be sorry to repeat it The supreme Moderator of all things will one day Judge these exorbitancies I will say no more Object There is one yet great Objection of those that are curious and hard to be satisfied it is somewhat darke and Enigmaticall to the ignorant and that is That Armes are taken up against the King by the Parliament they leavie War against his Person an Act in it selfe impious and by the Divine or Humane Law in no wise warranted Sol. To which I answer That this Allegation is false and untrue there is no force or violence offered or intended to be offered against the person of the King we conceive his person onely free from the Sword By the Divine law the regall person differenced from the regall power but if you take his person for his power raised by him coagmentative there we differ from you for by the Law Divine whether his person and power raised by him illegally be together confounded and not distinguished or whether Tyranny or abused Authority shall be said to be the Ordinance of God and so not to be disobeyed I will not meddle in the decision thereof though I take it cleare they shall not for goe to the very Etymology of the word Ordinance mentioned frequently in the Scriptures of God and so much insisted upon by the other part that it ought not to be resisted it is plaine it is derived Ab ordine from order wisedome and judgement the shadowes of the Divine essence which is an eternall Law of admirable wisedome even to it selfe and is the Primum mobile and originall of all Order and Law to the Creature Now in Tyranny and abused Authority there is nothing but folly and madnesse as I may so say the authours of disorder and confusion and surely if the Lawes of man be called Ordinances for this reason before mentioned What shall we thinke of the Law of God Whatsoever is by this Law appointed is wisedome and judgement in the abstract 1 Sam ca. 8. That place of Scripture which you wrest by mis-interpretation for the purposes warrants no such matter This shall be the manner of the Kings saith Samuel to the people They shall take your Sonnes and your Daughters they shall take your Fields your Vineyards and give them to their servants Render the
difference His power not so viz. his illegall power They may attend the Kings person in the Warres and yet Traitors by Law his Person secured his power not so And although the King pardoneth this Offence upon this Statute as it appeareth formerly he hath done yet surely this is not effectuall for he is disabled by Act of Parliament to take benefit of this act and therefore the King cannot inable him as upon 31. Vi. ante f. Eli. in case of simony if the King present the same person simonaically to the same Benefice and withall in his presentation there is a speciall Non obstante yet this will not availe Also I conceive Impeachment in the high Court of Parliament disables the Kings pardon Nota. if he be Impeached in the high Court of Parliament upon this Act as he may be and not by Indictment at Common Law then surely the Kings Pardon will not aide him I have been somewhat more prolixe upon this Statute of 11 H. 7. ca. 1. because it is much insisted upon by the adverse part Give me leave to impart unto you some speciall observations upon these Statutes of E. 3. before mentioned viz. That Justice shall nor be delayed for the great or little Seale of the King Three particulars worthy the consideration branch themselves out of these Lawes naturally Note the contrary held in Cambridge in the Case between the Archebishop of Canterbury Chancellor viz. That the King sitting in Cathedra personally though he might erre in circumstance or the like yet in point of judgement he could not erre 11 Car. aut eo circiter The King may erre in judgement proved by the law positive First That the King may erre in his judgement his Commands may be illegall and contrary to Law Secondly That Armies of men or men in Armes may be raised by the King without authority of Law Thirdly That these forces thus raised by the King are to be suppressed and punished as Delinquents to the Lawes and Government notwithstanding the Kings Command where you may likewise evidently perceive a difference in Law betwixt the Kings Person and his Power I will debate these three partâ—culars briefly The King may erre in his judgement he may Command contrary to Law yea that his verball protestations may be otherwise in private to the Judge in publike to the world the Judge is not bound to beleeve his verball protestations though under Seale he is to execute the Law and not to delay right and justice Note here the command of the Law Nota. the command of the King the command of the Law to be obeyed not the King note also here the supreme power of the Law before spoken of Object Our Malignants cry out and say Is not the King to be beleeved He hath protested upon the holy Sacrament to the world that he will preserve our Religion Lawes and Liberties yea that he will not violate the Lawes we are Rebells and not Subjects if we should discredit the protestations yea the Oathes of our Prince I answer Sol. The Judgement of a Parliament is otherwise he may erre his Commands may be illegall and the Judge is not to regard any protestations that are otherwise but to execute the Law We are good subjects notwithstanding this false aspersion The King may raise Armies of men contrary to law for the second particular he may raise Armies of men against Law that you see plainly for if he send this Message to obstruct the course of Justice by numbers of Armed men are not these men illegally armed For it appeares they come to oppose the Law a great offence by these Lawes evident enough Here likewise appeares the truth of that Stature of 11 H. 7 afore named so much mis-interpreted by evill Counsell about his Majesty such Counsell by which his Majesty is seduced in his heart and misled Of what Counsell the law taketh notice of of which Counsell the Law taketh no notice at all whilst the wisedome of the great Counsell of the King and Kingdome so by Law deemed and determined even in the interpretation of this Law and many others is neglected and not regarded for these numbers of armed men comming with the Kings Seale to stay Justice yea though the King be attended by them in Armes are capitall Offenders and Traitors and so to be certainly pronounced if they shall forceably attempt to execute this Regall Command though the Kings person be attended by them What speakes then the Act of 11 H. 7. but what former Statutes have said The Allegiance of the Subject may be declined and yet the Kings person followed in the Warres for the Regall Warres may be unjust upon all these Statutes and so it is cleare to any rationall man I am sorry to unfold these hidden and secret Mysteries of the Law thus farre for I doe unfainedly honour the King but Amicus Socrates anicus Plato sed magis amica veritas For the third particular that the Judges are to suppresse this illegall power I need not much trouble you withall for otherwise the words of these Statutes were idle and illusory Regall forces not warranted by law are clearely to be supprest by these lawes how could the Judge proceed to Judgement if these men that come to stay the course of Justice were not hindered in the execution of this illegall Command The sence of the Law to be thus upon these Statutes he that runneth may read I intended no more but by way of supposion but in respect that application is necessary in these distracted times Application Nota. and usefull in all Discourse in regard that our opposites will say and clamour too That none of these Lawes are in question there is no violation of them therefore you shall see that in our unhappy times all these afore recited particulars are verified The King doth erre in his Judgement his Commands are contrary to Law witnesse the Kings Command to apprehend the Members of the House of Commons contrary to their Lawes and Priviledges and to try them upon supposed Crimes elsewhere yea his Majesty himselfe came in Person into the House of Commons and Demanded or Commanded delivery of them The illegall Commission of Array so often issuing forth a great oppression to the people whereby he armeth thousands of men at this day contrary to Law and Justice the King claiming no other power to Array his people or Arme them by his owne Declarations in print but which depends upon the Statute of 5 H. 4. before remembred and that Statute is not in force as you may perceive in this Treatise formerly What need I say more Nota. Commissions have been sent under the great Seale to Array the City of London and other places of this Kingdome to take up Armes against the Judges of that high Court of Parliament to hinder Justice and Judgement as these statutes afore mention Shall not these Judges proceed to doe right
and justice these illegall Commands notwithstanding Doth not the King arme the Papists contrary expresly to Law yea by Commissions under seale to fight against his People against his Parliament when as by 3 Jacobi ca. 5. they are to be disarmed and to beare no Armes within this Kingdome and although the King License them nay 3 Jac. ca. 5. not to be dispensed withall Command them to take up Armes as the case now is that will not aide them since the statute is for security of our Religion and our Lawes against the enemies thereof the King cannot dispence with it For the other particular That the King hath raised Armies of men to execute these illegall commands and that the Judges of the Law and of the high Court of Parliament have according to their duties upon these Statutes endeavoured these illegall forces it is plaine enough Now what say you unto these things yee that beleeve in errour and falshood Are we still rebels and traitors in your judicious opinions Fight we for the Lawes and for the maintenance of them and are not one of the actions amongst many which might here be remembred justifiable and yet are you the good Subjects and we the desperate Rebells What if you shall say We are no men that are compelled to take up Armes we serve the King voluntarily we are none of the illegall Commission of Array I answer Incidit in Scyllam qui vult vitare Charibdem you fly from one extreame to another Traitors wiâ—hin 11. H. 7. ca. 1. though attending the Kings person in the Warres voluntarily if you decline from the duty of Allegiance as it is plaine you doe from one defence illegall to another are you not punishable to goe or ride armed by Statutes formerly mentioned without any evill intentions appearing how much more then when you goe about to violate and transgresse the Lawes Your voluntary act here makes the offence the greater as for the exception of the King and his Servants in his presence mentioned in these Lawes that is nothing it will nor helpe you at all for these Lawes as I have formerly spoken intend only his servants meniall and for preservation of the Peace likewise what is this paucity of men to Armies numerous Here is no refuge for you in these Statutes we are come to Nurcules Pillars to a Ne plus ultra with our opposites we are come to so straight a passage that there is no declining either to the right hand or to the left for I thinke we have searched all the corners of errour I will pursue you no further I wish you may at length turne into the wayes of truth least that God open the mouth of the dumbe Creature to reprove the folly and madnesse since the voice of the Law moveth you not at all Hence it is apparent that the Law as supreme hath invested both King and people with that power which they have by Nationall pact and agreement The law useth a power coersive as to the Kings possessions yea is to any power illegall raised by him and therefore if transgressed they are liable unto judgement as you see it cleare in matters touching the Kings possessions though not his person and if the Law come so neare the person of the King in point of coertion as his Lands and Estate making them Subject to the Decrees and Edicts of the Law pronounced in the Courts of Justice then common reason teacheth you that the Law hath a compulsary power over all illegall forces raised by the King for the Revenues and Lands of the Crown are more necessary and incident unto the regall Dignity and are nearer conjoyned unto it in point of defence maintenance and security then any power not warranted by Law Witnesse this Case that the Lands and Revenues of the Crowne come they by discent or purchase goe to the next successour to the Crowne contrary to the rules of Law in the Subjects Case an instance of this the discent of the Crown from Ed. the 6. to Queen Mary resolved by all the Judges that the Lands of the Crowne descended to the said Queene though but of the halfe bloud to King Edward Halfe bloud hinder nâ—â— discent of the Crowne yea that the Jewels of the Crowne and personall Estate vested in the said Queene and the reason of the Law is the same before mentioned for defence maintenance and security of the Regall Dignity or Person but any illegall power raised by the King dyeth with his Person it can neither discend neither can it be disposed of by the King it hath no affinity as I may so say nor any relation to his Person yea the Law taketh no notice of it at all but with an eye of Justice so that it is manifest the Law useth a coercive power as to the Kings possessions yea as to any Armies of men or forces raised by the King without legall authority Come we then to his Person see the wisdome of the Law there also it useth no coersive power because his Person by the Divine Law is Sacred as also it is needlesse for the Law to use a compulsary power over the Kings Person seeing that his Lands and Possessions yea any illegall power raised by him are subject to the Censure of the Law What formidable thing is his Person if you take away any power from him but what is warranted by Law No need of coertion as to the Regall Person Nota. What need of coertion over his Person I speake not this to diminish the just and due rights and greatnesse of the King for the Majesty and greatnesse with which the Law hath incompassed him is in truth Majesty Et regia celsitudo illegall Magnificence makes him but a poore and weake Prince despicable even in the eyes of his People Ejus potestas as Bracton saith est juris non injuriae But to draw to a conclusion inferiour Courts of Justice have their authority to suppresse any force raised by the King Argum entu à mineri ad majuâ— if not allowed by Law as it appeareth in this Treatise that these Armies of men by the King Commanded are in no wise legall What shall we then say Shall not the high Court of Parliament have the same authority which inferiour Courts Hand-maids unto it even in time of Peace have used and exercised I am ashamed of this grosse ignorance Now you that have many tergiversations and shifts to defend errour what say you unto this declare unto the world your Cause and stay these streames of bloud amongst your Christian Brethren Publish to this Nation the blindnesse and hardnesse of their hearts convince their judgements and understandings that truth may once more flourish amongst us But if not be for ever confounded in your selves close up your lips with perpetuall silence hereafter But you may say Object How comes it to passe that these particulars have not hitherto been discovered to the world
away the Members of the Houses from the service of the Common Wealth and trying them by Commissions elsewhere by the knowne Lawes of the Land as they please now to terme them wrested misinterpreted by illegall Judgements to Condemne the innocent Vi. Deat f. 10. a for the positive Lawes and the Law of Parliament much differ and are not in many particulars consistent together and yet both Lawes in their proper Spheres and motions just and good Lawes and howsoever the people be deceived otherwise and by other pretexts this is the very truth and beginning of all our miseries Hinc illae lachimae In his Majesties absence from the Parliament these Agents have not been idle they then labour to invalide all the proceedings of Parliament without the Kings presence personally they Arraigne them and Judge them as null and void by extrajudiciall Declarations there is a suddaine eruption of this impious doctrine That the King hath an absolute negative voice to all their Votes and Resolutions and so their sitting there frivolous and contemptible a position inconsistent with the Government of this Nation and subjecting both Lawes and people Arbitrio principis to the will and pleasure of the Prince A cursed Opinion And further when they see that these Plots are ineffectuall they take up Armes in plaine termes But what to doe To destroy the Lawes and Government for ought that I know yea the King himselfe in his Regall Dignity they colour it with Law and Justice forthwith issues a Commission knowne by the name of The Commission of Array an illegall and unjust Commission as you may perceive by this former Discourse Afterwards they fly to the defence of the Kings Person Nota. an Act justifiable as they say even by the Law of God and Nature as if the Law of this Land had provided for the Members of this great Body Politicke and had left the head thereof without any security of it selfe a high and great scandall to the Government The truth is the King is made use of by them under pretence of the security of his Royall Person but to shelter themselves from the mulct and penalty of those great and capitall Crimes of which they are even by the positive and knowne Lawes guilty you may see how largely and wisely the Law hath invironed the Royall State and Dignity with walles of defence round about in the fore-going Discourse therefore they need not seeke any other refuge Last of all they cast this aâ—perâ—â—on upon the Parliament and Kingdome That they take up Armes against the King which you may perceive by this Discourse they doe not they intend no hurt to his Person but the safety thereof for surely they that seeke to invest the King with the same garments of Peace and Justice with which the Law hath adorned him seeke more the security of his Person then those that seeke by these bloudy courses to present him unto his people in the indeleble Characters that I say no more of errour and misgovernment Are Usurpations the Robes of a Prince Certainly these are not his Parliament Robes Is any thing denied or with-held that is his Majesties right if his Majesty would cease these Warres against his People Thus you see in briefe the beginning progresse and continuance of these our calamitieâ— unto this day on the Kings part by evill Counsell fomented and maintained The Parliament and people with them fight for their lawes and liberties yea for the King and the maintenance of his regall dignity nothing but violation of Lawes and Justice and although it be falsly alledged That the King fighteth for his Crowne I thinke upon the premisses you may safely conclude the Parliament and people fight for their Religion Lawes and Libertie yea to set the Crowne and the due Rights thereof upon the Kings Head and his Posterity which by these illegall waies hath been is and will be much exposed even to ruine and destruction If any maâ— shall be yet so unhappy in himselfe as not to rest satisfied with what is here delivered but that flesh and bloud will still contest I have nothing more to say unto him then this It is the Lawes and Government of this Kingdome that warrants this truth Et câ—ntra neguâ—â—eâ— principia non est dispuâ—aâ—dum And now to draw to a conclusion of this woâ—ke you that are filled with knowledge and wisedome as it is much gâ—oâ—â—ed in by the sâ—â—ple and ignorant where is your learning and wisedome may not I say unto you Behoâ—â— how that God hath chosen the vile and abject things of the world to oppose the mighty the foolish things of the world to confound the wise The Kings part fight not for Religion since they seeke to eneâ—vate those Lawes which under God preserve and secure our religion 3 Iac. ca. 5. vi devant What are these streames of bloud for Are they for your Religion Is this your last objection take heed that you erre â—or herein if you endeavour to disarme Religion to take away the Bulworkes and Fortâ—fications thereof the Lawes and Statutes of this Kingdome by which our Religion hath been hitherto under God preserved and maintained Are you not guilty of Sacriledge Was there not a Statute lately made to disarme the Papist as a dangerous enemy to our Religion to take away all Armes and Aâ—munition from him as also to banish him from the Kings House or Court or of his Heires apparent or within ten miles of the City of London How is this excellent â—aw most shamefully abused Not one jot or tittle of the same No cause whatsoever sufficient to justifie the violation of the Lawes we may not doe evill that good may come of it but infringed Have they not freely repaired unto the Kings Court as likewise unto the Princes yea have they not been a Guard unto his Person Doe you not likewise Arme and command in Armes the enemies of our Religion against us the Popish Party under pretence of the defence of the Kings Person directly against the Lawes of this Realme as I have shewed you before That Law which next Divine Providence is the onely security of our Religion the disarming and weakening the Papist and what will ensue upon thiâ— but if they should prevaile which God avert an utter ruine of our worship of God or at least a tolleration of Popery which would soone extirpate the Protestant Religion Now let the world see what zealous Assertors you are of Gods true Worship and Service when you open the way to all prophanesse and superstition The religion which the best of you endeavour for is full of many superstitious Ceremonies fit to be abolished even in the judgement of the most moderne I will not here enter into any discourse of them as being impertinent and they being apparent unto the world otherwise Thus I hope I have framed a Gordian knot by the Lawes of this Kingdome established if any man can dissolve or unty
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.
PArdon of the King against a Statute Vi. titl Non obâ— posse Comitat. posse Regni vi tit Court of justice Person and power Regall differenced by Divine Humane Law p. 100 101 102. usque 105 In what Cases the Regall power may be opposed the Regall person not criminous by Law may not be opposed ibid No Coercive power as to the Regall person reason why otherwise of his Lands and Possessions or any illegall power raised by him p. 110 111 112 113 Priviledge of Parliament in the Militia Vi. titl Militia Priviledge of Parliament the Law of Parliament the Etimology differenced from the Lawes there enacted p. 45 Priviledge of Parliament in Criminall matters in Civill p. 5 6. extending to members strangers ibid Larger in Civill matters then in Criminall p. 7 8. in Criminall ordinary course of justice in Civill extraordinary p. 7 8 9. The reason of this priviledge ibid In Civill causes somewhat parallel'd in inferiour Courts not in Criminall p. 10 The priviledge in Criminall matters essentiall to Parliaments Et ratio p. 11 Priâ—iledge of Parliament That no Member depart without leave c. Vi. titl Statut. 5 R 2. 6 H 8. ca. 16. Presence of the King no protection against the power of the Law p. 28 29 Presence of the King in Parliament personall legall differ one inseparable not the other in inferiour Courts His personall presence in a Court of justice in some cases against Law p. 31 32 Prerogative Definition of it restriction of it Militia negative voyce in Parliament no prerogative Et ratio Proclamation a prerogative how and in what manner prerogatives and rights of the King different Vi. a large 114 115 116 117. c. Proclamation in time of Parliament p. 64. Proviso In Statutes expounded Vi. titl Statut. 11 H. 7. ca. 1. Vide statutum edictum 〈◊〉 parliamento in case Commitis Strafford sometimes explanatory onely p. 61 62 63 R. REcognizanâ— pro securiâ—aâ—â— pacis who may takes who not p. 32 33 34. Roy les parols nostre segnior le Roy. Vi. titl Statut. 25 E. 3. vi titl King S. SEntence and order of Parliament how understood p. 12 13 Statute 17 E. 2. Declarative of the prerogative Vi. p. 3. 114 5 R. 2. ca. 4 6 H. 8. ca. 16. Touching the absence of any Member from the service of Parliament explained p. 16 17 18. c. Vi. titl Absence 25 E. 3. Les paâ—ols nostre segnior le Roy what they intend ibid. p. 75. Vi. titl roy 33 H. 8. ca. 21. What absence of the King from Parliament warranted by this Act p. 19 20. Vi. titl Absence Statute of this Parliament for the releefe of Ireland opened in the preamble the Act but temporary p. 43 44 47 48 c. Vi. titl Militia 4 H. 4. 13. 1 E. 3. 5. 7. 18 E. 3. 25 E. 3. Declaratory of the ancient Militia limited by the Common Law p. 44â— 45. c. Vi. titl Militia positive 1 E. 3. ca. 5. 7. Statutes in matter and substance differing p. 49 50. 5 H 4. ca. expl p. 52 53 54 c. Touching the Regall power in the Array the true effect and meaning thereof p. â—5 11 H. 7. ca. 1. What the words Allegiance Commandment of the King intend in this Act p. 57 58 59. vi titl Allegiance the true reason of the maâ—ing this Act p. 104 105 â— E. 3â—â— 3. Who â—â—â—ke or Vi 〈…〉 p. 63 6â— 110 Statute of the Anamder of the Earl of Strafford Hoc parliamento editum explained 〈…〉 proceedings judgement p. 73 74 57. c. â—8 E. 3â— ca. 18. The Subjects right â—â—â—lecting the Sheriffe of the County 〈…〉 Vi. a large p. â—â— 83 84 85. c. 94 9 E. 2. Device com the Kâ—â—gs right in election of the Sheâ—â—â—e of 〈◊〉 Couâ—â—â—â—hâ—â—â— been used or at least his right or the Militia by this Statute refuted p. 82. 8◠〈◊〉 88. 2 E. 3. ca. 8. 14. E 3. ca. 14. viz. That justice shall not be delayed for the command under the great Seale c. Some observation on these â—â—â—tuâ—â—s p. 103 104 4 E. 3. 14. 36 E. 3. 10. Touching annuall parliaments c. 〈◊〉 calling parliamentâ— or when called the power of diâ—â—â—â—â—tion 〈◊〉 prerogative but a matter of rights and justicâ— â—â—t raâ—io p. 119 120 121. 3 Iacob ca. 5. Touching dis-â—â—ming papistâ— p. 109. 125 〈◊〉 â—e dispenced withall Vi. titl Non obstant T. Tumult WHâ—◠〈◊〉 p. 19 〈◊〉 â—here though the Kings person attended VI. titl 〈◊〉 1 H. 7. câ— 1. â—reason againâ—t the Lawes and Government Vi. titl statut 25 E. 3. p. 75. V. USe of no force aâ—â—â—st the Law in esse p. 21 Of no force in 〈◊〉 Militia the disposition of the great offices of the Kâ—â—â—dome Eâ— ratio p. 94 95. where availeable 〈◊〉 ibid W. WAgeâ— Sâ—â—â—â—â—â—s that 〈◊〉 thereof as appertaâ—ning to the 〈…〉 intended Vi. titl Innuendo 〈…〉 1. â— 3. â—â— 7. c. Errata PAge 2. l. 3. fanebrem pre furiebrem p. 3. in marg for station 1. stâ—tute p. 5. in m. Parliamento pro Parliamenti p. 6. fol. 18. r. f. 81. p. 12. l. 19. omit of p. 16. f. perceptum r. preceptum p. 16. in mar in miserecordia Dom. Regis id est cutia c. l. 19. p. 26. l. 4. sor right Court â— high Court l. 6 7. f. exploeded r. exploded l. 15. r. assent to bills p. 49 m r. not bound by their tenures c. p. 67. in m. r. if the King p. 76. l. 1. r. ignorantia pro ignorantia p. 76 l. 32. s not imprâ—st r. now imprest p. 86. l. 10. f malifica r. malefida p. 93. l. 19. f. disposition r. deposition p. 94. l. 3. r. Monarchies