Selected quad for the lemma: war_n
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A35720
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A manuell, or, Briefe treatise of some particular rights and priuiledges belonging to the High Court of Parliament wherein is shewed how of late times they have been violated : the true condition of the militia of this kingdome, so much now controverted both by king and Parliament, by the positive lawes discussed and debated : with a briefe touch at the royall prerogative / by Robert Derham of Graies-Inne, Esquire.
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Derham, Robert.
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1647
(1647)
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Wing D1097; ESTC R16744
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83,752
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146
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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
positive Lawes and to other because it is not the duty of the Subjects Allegiance but what is positive or in esse the other is not the duty of tâ—e Subject neitâ—er is it any Allegiance at all untill by Parliameâ—t it be so injoyned but tests in the iâ—teâ—im in nubibus or in consideration of Law therefore the llegall positive Allegiance viz that which is due by the positive Lawes â—â—ely is intended by this Statute If it were taken in the other sence in this Statute as it is plainely otherwise Nota. yet it would not advantage the other part All statutes penned in such generall words as this is intend onely the legall positive Allegiance as before but bring them a little nearer to the Parliament and their power and authority which they so much decline What shall we then say unto Armies of men thus illegally raised by the King viz. dirctely against all these positive Lawes formerly remembred Can we in Law or conscience aide or assist them By Law we cannot as you see then surely we cannot in conscience Humane lawes injoyned to be observed by Scripture the Law of this Land binding the conscience to obedience and the observance of these humane Lawes being so often in the holy Word of God Commanded and for this reason as I conceive these forces thus raised Rebells and Traitors not raised by lawfull authority are termed by a Declaration of Parliament Rebells and Traitors because not raised by lawfull authority and surely if Rebells and Traitors they are to be suppressed not assisted and that men may be Rebells and Traitors and decline from their duty of Allegiance although they follow the Kings Person in the Warres appeares by the foresaid Statute of 11. H. 7. ca 1. the words of the Statute are for defence of the King and the Land and therefore if against the Land as it must be Traitors though att nding the Kings Person in the Warres by 11. H. 7. ca. 8. if against the Body representative the Parliament it is Treason within thiâ— Law although they attend the Kings Person in the Wars and this is that Statute which his Majesty hath frequently made use of in divers printed Declarations of his whereby he would seeme to exempt all those that attend his Person in the warres from any impeachment but surely this Statute will not aide him for it is apparant by the Proviso of this Statute Provisâ—e Explanation of the Proviso that there is a declining from the duty of their Allegiancâ— although they follow the Kings Person in his warres otherwise the Proviso were meerely idle but to explaine it yet â—urther Proviso relates alwaies to the body of the Act in the judgement of the law The Proviso relates to the body of the Act the body of the Act is onely to exempt those that attend the Kings Person in the warres and doe him true and faithfull service for the defence of his Person and the Land Service done unto the King in defence of the land is the legall positive Allegiance within this Act. Here you see Allegiance is meant in the Proviso viz. the service done unto the King in defence of the Realme provided that none shall take benefit of this Act that shall decline from the duty of his or their Allegiance that is to say that shall not doe true and faithfull service unâ—o the King and the Land as is mentioned in the Act and the word None in the Proviso is plaine None relates to the body of the Act. No Traitor by law can have any benefit of law viz None that shall attend his Person in the warres shall take benefit of this Act if he shall decline from the duty of his Allegiance and in this sence it must be taken and in no other for future crimes it cannot extend unto other then mentioned in this Act since by Law they are made uncapable of the benefit of any Law if transgressors of the Law Frustra legis auxilium implorat This Proviso but explanatory qui in legem committit and therefore this Proviso idle if so understood unlesse you will tax a Parliament to be misconusant of the Lawes Further this Proviso as it seemes to me is but explanatory of the Act and was not absolutely necessary to be incerted This Allegiance upon this 〈◊〉 hath relation only to the positive law Vi. ante The subjects Allegiance unto the naturall capacity of the King in respect of the politick for certainely they had been included in the body of the Act as uncapable of benefit thereby if no such Proviso had been at all What need I say more the meaning of this Law is very well delivered by the Parliament in their Declaration concerning Hull Here I might touch and that not extravigantly upon the Allegiance Royall unto what capacity of the King it is due You see a man may decline from the duty of his Allegiance and yet follow the Kings Person therefore the Allegiance is not due unto the naturall Person of the King onely but it is due unto the naturall in respect of the politique capacity and that you see is the Judgement of this Parliament The Subjects Allegiance may be declined and yet the naturall Person of the King attended and withall note that in these times this is declaimed against as a Jesuiticall distinction and yet the judgement of a Parliament Object But it is further urged That the penalty of this Law is remitted and pardoned by the King Sol. I answer That the Kings pardon availeth not here Statute made pro bono publico cannot be by any non â—bstante dispensed withall for the Proviso expresly excludeth all men from benefit of this Act be it by the Kings Pardon or otherwise if they shall decline from the duty of their Allegiance and this being an Act for the service and defence of the Realme cannot be dispensed withall by any Non obstante in the Kings Pardon as it is to those that peâ—use the Lawes manifest I will yet crave further patience in the aforegoing particular in the arraying and arming of men and shew you how tender the Law is herein in a Statute in 1 Mar. 12. No Warlike appearance witâ—out authority of laâ— but pun shable I take it If an Assembly of men were made to doe any unlawfull Act as to throw downe Enclosures or the like and did not depart within a short time after Proclamation they were Ipso secto without any furthâ—â— Act done adjudged Relons by Law and to suffer death so tender is the Law of any Assembly especially in any Warlike manner to doe any unlawfull Act. Nay further No Warlike appearance wiâ—hout authority of laâ— but punishable it is a thing unlawfull for any men to Assemble themselves together or to goe or ride armed in a Warlike manner although no evill intention appeares unlesse they doe it by lawfull authority or command to goe or ride armed