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
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
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
point the Common Law formerly recited is still in force viz. That none are bound to attend the King in his Warres either within or without the Realme unlesse in case of sudden invasion unlesse by their Tenures if by their Tenures bound to attend him in forraine service as that is not cleerely granted yet you see no penalty ensues for default thereof unlesse the high Court of Parliament impose it a president of which Escuage assessed Service not compulsary in effect no service we have not had since 8. E. 2. no such service penall or compulsary without Parliament which is in effect as if you should say No such service at all without consent of Parliament But I will leave the Common Law I hope vindicated from all objections and come we to the Statute it selfe and that is that such number of Souldiers shall be imprest in all Counties of this Kingdome by the Committees for that purpose as shall be appointed by the King and both Houses of Parliament This is the substance of the Act if not the words and here you may see this Statute is tender of the ancient Birth-right and freedome of the subject for it reciteth it and withall maketh but a temporary provision for Ireland The statute for the releese of Ireland but temporary The Common Law onely in force for the Militia of thiâ— Kingdome against all persons except the high Court of Parliament Vi. infra which occasion ceasing the Common Law hath its force againe so that as to the Realme of England and elsewhere except Ireland the Common Law hath its force and is at present effectuall against all power and authority either of the King or Subject but only the supreme authority of Parliament Object But it may be hence objected that since this Act extends onely to Ireland therefore the Militia for the service of this Kingdome rests as it did before not within the letter or sence of this Act. Sol. Implication for sure the King would not have joyned in an Act if he might have done it legally before Object I answer if we should admit this which for Argument sake we onely doe there being something to be gathered by implication from the words of this Law touching the power of the Militiia as appertaining to the Parliament then the Common Law formerly recited must rule us and here it is said The Common Law That none shall be forced out of their Shires c. is intended without wages and therefore if they have pay or wages they may be legalâ—y compelled by the King to attend his service in the warres and so are the Statutes of 1 E. 3. 18. E. 3. and divers others and the opinion of that reverend Judge Thirninge in the time of H. 4. is so to be intended Sol. No Innuendo in private affairs much lesse in Acts of Parliament allowable I answer first if this should be granted it is a strange and dangerous way to expound Lawes and Statutes and to inlarge the meaning of the Law-makers with an Innuendo a thing not permitted even in private affaires much lesse to be allowed in generall and publike lawes viz. That they shall not be forced out of their Shires c. innuendo without wages by this course Lawes and Statutes shall be wrested and made a noâ—e of waxe capable of any forme or exposition but there is one great reason which will make this Objection but meere cavillation if I have not satisfie it already and that is this That one Session of Parliament viz. 1 E. 3. confirme and makes both these Lawes 1 E. 3. ca. 5. 1 E. 3. ca. 5.7 explained 18. H. 6. 19. 7. H. 7. 1 3. H. 8. 5â— recites the Common Law before remembred and confirmes it too 1 E. 3. ca. 7. and all other Statutes relating to this Law have these words or to this effect That Souldiers (a) Imprest viz. Forreine service not compâ—lsary by the law positive penall by authority of Parliament Vt supra 1 E. 3. ca. 7. may heâ— also intended of the Impressing that Militia that was not hereunto bound either by Tenuâ—e or Contract both branches of the Militia intended by this law legally raised or imprest 1 E. 3. ca. 7. intended most especially of that generall and more absolute power of the Militia not of the positive Militia viz. of those that were bound by Tenure c. imprest by the King (b) The word Commission in the statute of 1 E. 3. ca. 7. must be intended Commissioners derived from the authority of parliament not any oâ—her regall Commission so forreine service might be â—ompulsary even of those that weâ—e bound by their Tenures viz. by such Commissions Commission for Scotland or Gascoigne shall have wages Or forreine service f. 1. E. 3. 7. the one Statute is generall in the negative That they shall nor be forced out of their Shires either with wages or without as the sence is plaine to any rationaâ—l man The subsequent Law saith That the Kings souldiers shall have wages so that having wages allowed they may be compelled to serve Here seemes repugnancy or contradiction may be said To reconcile this and to manifest to the world the honour and wisedome of a Parliament notwithstanding any aspersion by the rule of law and reason you must make such exposition of any Law as in all parts may be operative and effectuall if it may be and that each Chapter of a Session of Parliament may have their genuine and proper operation why then these Statutes Ex visoâ—ribus actus an excellent way of expounding Statutes by comparing and conferring one Statute with the other are thus to be intended 1 E. 3. ca. 5. 7. Statutes differing in matter and substance viz. That 1 E. 3. ca. 5. and 7. are Statutes differing in matter and substance the one not having any relation to the other though they may so seeme upon the first view for 1 E. 3. ca. 5. extendeth onely to the Militia limited by the positive Lawes cap. 7. to the Militia imprest by authority of Parliament for forreine service which could not legally be dore without this authority as you have formerly heard and so the one doth not crosse or oppose the other which of necessity they must doe if other constructions be made for they treat of severall matters and the sence of Law makes a great disparity betweene them though there be a sound of words seeming otherwise so that 1 E. 3. ca. 7. is thus to be intended The Kings Souldiers going in forreine service shall have wages viz. The Kings souldiers legally raised by authority of Parliament and so there is no violence offered either to the letter or sence of either of these Lawes The power of the Militia to be implyed by the King in Forreine service with wages printed in Calvines Case denied for law That which is printed in Calvins Case a famous Case well knowne to Lawyers was but the
arguments of Judges â—o resolutions in this particular and iâ— they had been resolutions they had been erronious as it is manifest by what is formerly spoken and by the judgement also of this Parliament in reciting the ancient Common Law in this particular in force even at this day Much labour hath been spent in one of the Kings Declarations to put in or for and in the Statute of 1 E. 3. No necessity but forreine invasion upon the Common Law of the Statuteâ— which recites the Common Law and so to extend that Statute and the Common Law likewise to home defence but the truth of it is there is neither or nor and in the Statute of 4 H. 4. which is a weighty Statute and recites the Common Law in this particular and the Statutes confirming it for the words of this Statute are Forreine service by statute this Parliament enacted a fâ—â—tioâ—â—â— Home defence None shall be forced out of his Shire to the Kings Wars unlesse in case of necessity of suddain comming of strange enemies into the Realm thus you see all passages cleared His Majesty in one of his Declarations saith That he yeelded more willingly unto thiâ— Act for releefe of Ireland it being no matter of home defence but forreine as being also formerly controverted how groundlesse the controversie was on the adverse part for disposition of the Militia for forreine service by the regall authority you may see by what hath been formerly delivered Also we may reason thus upon this Statute viz. The Statute for releefe of Ireland that if no forces can be raised by the King for the defence of a forreine Kingdome though subject to the Crowne of England a fortiori they cannot be raised for home defence without consent of Parliament and certainely if they might be raised they must be maintained and what provision hath the Law made for them verily even none at all then it followes that Armies of men illegally raised must be illegally maintained that is to say By rapine and oppression Object Commission of Array But it is objected That the Kings forces are raised legally viz. by a Commission under the Great Seale commonly called The Commission of Array Sol. to which I answer That the Commission of Array is against the fundamentall Lawes of this Realme and is neither warranted neither by Common Law or Statute or president of former times it being against them all directly forcing men to goe out of their Counties as it is now put in practice against the ancient Common Law formerly remembred and to finde Armes contrary to the Assize limited in the Statute of Winchester and subjecting mens bodies and estates to imprisonment and other penalties imposed by Commissioners for refusall things not warranted by any Law Object But it is urged That the Law of 5 H 4. a Statute not in print upon which his Majesty grounds his Commission of Array is in force Indeed that Statute the King hath made use of in print to publike view for his sole and onely warrant of this Commission but you shall see presently how unsafe a refuge it is yea how upon the first triall of it it will not enduâ—e For in the first place I say Sol. It is absolutely repealed and that by the Statute of 21. Jacobi by which all former Statutes concerning the power of Arraying men are repealed and then surely Statutes that concerne the execution of this power must needs be also repealed as this of 5. H. 4. is 5 H. 4. Depends upon Winchester as even reason teacheth for how can any Statute touching Commissioners Arraying or arming men stand in force when the Statute of Winchester the sole Statute concerning the power of Array is by the Law repealed but to make it plaine to every capacity the Law of 5. H. 4. is onely a Law for the indemnity of Commissioners putting in execution the Statute of Winchester Now if the Statute of Winchester be nor in force this of 5. H. 4. 5. H. 4. Temporary no statute must likewise fall to the ground because it doth necessarily depend thereupon Further this Statute of 5. H. 4. was but temporary and so expired long agoe or no Statute at all but a Commission inrolled or the like never assented unto in nature of an Act of Parliament as is learnedly proved by the Remonstrance of Parliament Concerning the Commission of Array I will crave the patience to answer one Objection more particularly because it seemeth materiall and this is made by the Penner of one of the Kings Declarations Object to wit that 21. Jacobi repeales indeed the Statute of Winchester but not 5 H. 4. Refutation of the Commission of Atâ—â—y by Parliament because Winchester is onely for preservation of me peace at ordinary times as also the Asâ—ize of Armes in that Act mentioned a petty and small proportion not sutable or agreeable to extraordinary or great occasions as suddaine invasion or the like and therefore 5. H. 4. Authorizing a large Commission for the raising and leavying of Armes agreeable to any occasion ordinary or extraordinary must needs be still in force notwithstanding the repeale of Winchester they are severall Statutes to severall ends and puâ—poses and therefore the repealing of the one repeaseth not the other Sol. Winchester for deseâ—â—e ordinary and extraordiâ—â—ry I answer The Statute of Winchester is intended by the very words and sence of the Law for defence ordinary and extraordinary and so is the Judgement of a Parliament in 3. R. 2. that Winchester was made for the defence of the Kingdome and the small proportions of Assizes of Armes there mentioned are but onely mentioned for example Exâ—mpla illustrant non testringunt lâ—gem Assises or proportions other then in that Statute limited and above those proportions are plainely collected from the very words of this Act as also that Winchester did extend to other proportions was the judgement of the Parliament 3. R. 2. before specified Come we then to 5. H. 4. that recites the Statute of Winchester and confirmes it as likewise that the Statute of Winchester was made for the defence of the Kingdome ordinary The very words of 5. H. 4. shewes that Winchester was for defence ordinary and extraordinary and extraordinary appeares by the very words of this Act for defence of the Sea-coasts and that in that case the Statute of Winchester shall be observed Are the Sea-coasts defended but for feare of forreine invasion which likewise was the cause of making this Act for but the yeare before the French attempted to invade this Kingdome It may be said then Object What needs this Act of 5. H. 4. if the Statute of Winchester provided sufficiently for defence of this Kingdome I answer Sol. That this Act was made to rectifie illegall Commissions not warranted by the Statute of Winchester and this was the sole end of the making this Act. The true sence and effect of the statute
5. H. 4. The Commissioners putting in execution the Statute of Winchester the ancient and only knowne Assize No doâ—bt the Military Tenure by common law was compulsary viz. by Distâ—esse or the like to services incident by law for Armes compulsary are saved harmelesse and inpemnified by this Law notwithstanding their former large and illegall Commissions and that they shall execute so much of their Commissions as was warranted by this Statute of Winchester and no more and for not executing the other illegall clauses in their Commissions at the making of this Act issued forth the Commissioners are saved harmelesse and indemnified by this Act so that you see 5. H. 4. depends upon Winchester notwithstanding the former objection Eradicate a Plant you destroy the branch so the repeale of the Statute of Winchester repeales 5. H. 4. as necessarily depending upon it Out of their shiâ—es viz. unlesse in case of suddaine invasion The conclusion of all is this The ancient Common Law formerly recited is now in force none could be forced to finde Armes or serve in person but those that were thereunto bound by their Tenures of Contracts nor those any further or otherwise that is to say out of their Shires or with proportions of Armes greater then they were bound unto by their Tenures or Contracts yea it appeares that by the Common Law Armes were proportioned he which held by a Knights Fee was to finde a man in Armes and so proportionally De coeteris and therefore Winchester did but affirme the Common Law in this or further enâ—arge it as also make the proportions of Armes more penall and compulsary then before The statute of Winchester sets downe an Assize for land and goods the common law extended onely to lands and only to such lands as were bound thereunto by Tenure by this statute all lands are tyed to finde Armes proportionall but whether those that wee bound by Tenure were to be Assessed by the Act and so charged with a double proportion of Armes In The ancient Assize in this statute mentioned was surely some law antiquated or not in force or at least not compulsaâ—y therefore Winchester revives it the common aw for Tenuures is now in force onely Now Winchester being repealed there is neither Common Law nor Statute to force any man to the finding of Armes but onely those that are bound unto it by their Tenures or Contracts and that thus the Law is taken upon all these Statutes concerning finding of Armes appeares by Sir Ed. Coâ—e in the seconâ— part of his Instit f. 528. in his Exposition of the Statutes of confirmations Chartarum libertatum for he concludes the Law to be that no man shall be charged to Arme himselfe or others save such as hold by such service of the King or other Lords whereby they are bound to it unlesse it be by consent of Parliament and further saith that that was the Common Law which these Statutes did affirme There is one Objection more Object and it is strangely and much insisted upon by his Majesty in one of his Declarations for he maintenance of his Commission of Array and for the nullifying of all these positive Lawes formerly spoken of and that is upon a Statute in force the Statute of 11. H. 7. ca 1. 11. H. 7. ca. 1. a late Statute and subsequent to all these by which the service of the Subject in the Kings Warres both within the Kingdome and without is recited and the Subject charged therewith according to their duty of Allegiance I answer Sol. this opened will likewise prove nothing 't is but the preamble of the Act and all the doubt will rest upon these words formerly mentioned The Subjects attendance on the King in his Warres either within the Kingdome or without may plainely be intended according to the positive Lawes formerly remembred The words of the preamb e. for some especially by their Tenures were bound to attend in forreine service as where their Tenures were to attend in Scotiam Pictaviam c. Commandment of the King what it intends The Commandement of the King here mentioned may either be intended according to their Tenures for forreine service or otherwise the Commandment may be taken for his legall command not his personall and that you have heard what it is the command of his high Court of Parliament Nota. and so what question of the Impressing men for forreigne service but the Regall command according to their speciall Tenures is that which in my judgement is full and satisfactory According to the duty of their Allegiaâ—â—e explained Alleg viz. naturall legall locall Come we then to those words according to the duty of their Allegiance the Subjects Allegiance is naturall locall and legall but the naturall and legall Allegiance is here intended and what is the legall Allegiance you shall see likewise is the naturall therefore the legall Allegiance opened ends all Legall Allegiance what it is viz. the positive Militia The legall Allegiance is that perâ—onall service which the Subject oweth unto his Soveraigne by the municipall Lawes of this Kingdom and that you have heard at large formerly what it is I need not use repitition Legall Allegance and naturall agree Now the naturall Allegiance and legall differ not but rather the legall Allegiance is explanatory of the naturall for the Law saith That the Subject shall serve the King in his Warres Salvo contenemento viz. Secundum starum facultates a respect being had to every mans state property faculty or ability and to that purpose was the Common Law and the Statute of Winchester limiting the Assize of Armes viz. Secundum starum faculâ—ates what saith the naturall Allegiance otherwise but that every man shall attend the Kings Persâ—n in his Warres according to his state and ability if other construction should be made the Law naturall should be unjust and without care and preservation of the Common Wealth if the imposâ—tion of this charge were not â—â—brâ—o respectu to every mans property state and faculty Thus you see what is meant by the duty of their Allegiance within this Statute Legalis ligeantia aâ—pâ—ex peradventure it may be urged there is another branch of the legall Allegiance also viz. when men be imprest for the service of the King by the authority of the high Court of Parliament without aâ—y such speciall relation to their Tenures or Estates or to the positive Lawes I grant This Allegâ—ance is likewise â—abito respestu ad statum c. agreeing with the otâ—er legall as also with the naturall for otherwise Acts of â—arliament should be unjust One branch only of the legall Allegiance intended by 1. H. 7. ca. 1. viz. the Allegiance due by the positive law this is the legall Allegiance likewise but this Allegiance is not intended in the Act of 11 H. 7. before specified for that Allegiance must â—ecessarily be meant tâ—e Allegiance due by the
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
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
Law are not things so considerable as the Militia of the Kingdome which is a thing permanent and abiding and shall have a constant existence so long as England shall continue a Nation of people and therefore the Law hath not taken such speciall care for this The Militia of the Navie depends upon the Militia of the Land as for the Militia But to give you a full answer and not to keepe you in suspence What is the Navie Royall without the Militia How are the Seas defended unlesse the Militia of the Land be designed for that purpose Goodly materialls without any hand to move them for the publike service fit for prospect onely not for use therefore you cannot consider them without the Militia of the Land to guard them The Navie without the Militia of the land to guard it not considerable unlesse they be furnished with men for publike imployment Why then still all depends upon the Militia of the Land and you see by the former discourse how that is setled the King cannot dispose of it otherwise then the Law hath appointed it nay it seemeth that the positive Militia is not in him personally but subordinately in his Ministers and so it is said in Law to be in the King Thus you see an end of this particular the King may build Ships but he cannot make them otherwise then as a livelesse structure unusefull without the Militia But to inlarge my selfe a little further on this particular it appeareth that the Navie that is to say the disposition of men Since this Act some Ordinances for the Navie noâ— Act or statute necessary for that service is not in the King but Parliament who made a temporary Act or Statute since the Parliament began enabling the Lord Admirall for the time being to imprest raise and leavie such number of men necessary for the service of the Navie Ratio why the Militia of the Navie must rest in the power of Parliament Et nota as shall be requisite for that expedition Hence it may plainly be collected that since this Act is expired the Militia for the Navie must of necessity rest in the power of Parliament since the King by implicite consent in enacting this Law so conceived for otherwise he would not sure have assented unto such an Act so derogatory to his Regality if the Law had not been so at that time but he would have authorized the Lord Admirall by Commission under the great Seale and so no Act of Parliament had been necessary Object Further if any man shall object and say That the power of the Militia for the Navie was in the King before this Act and that was the cause of making this statute but temporary which also being expired the Militia of the Navie is revested in the King againe Sol. The answer of this will be but Actum peragere the Militia of the Navie depending upon the Militia of the Land before this Act and therefore the Militia of the Land debated as formerly you have heard at large both that generall and absolute of the Militia as also that which is limited by the positive lawes there needs no further answer The Militia of the Navie in law the land militia Further it is evident to me upon this very Act without any retrospect to what hath been formerly spoken that the Militia of the Land the great matter now controverted must of necessity rest in Parliament for it is parcell of the Militia of the Kingdome Sea and land incorporated in point of dominion if the militia of the sea pertaine to the Parliament so must also the militia of the land unlesse you divide the power of the militia the Militia of the Sea is also the Militia of the Kingdome yea of the Land it selfe for the Sea and Land are incorporated by Law in point of Dominion and made one body subject to one head The Militia therefore of the Kingdome and the Militia of the Land are all one in Law and in the Militia of the Kingdome you must include the Militia of the Navie since the kingdom in judgement of law includeth both Sea and Land Or otherwise if we shall abandon all reason in the Exposition of this Statute it must at least be granted Nota. Division of the power of the militia dangerous to government that the Militia of the Navie is in the power of the Parliament even by the implicite judgement of the King and his great Counsell and admit a fraction or division of this great power so dangerous to Government and tending much to the weakening and enervating the great strength of this Kingdom I mean the Militia thereof and be occasion of perpetuall intestine wars in this Nation a position so inconsistent with Government and dishonourable to the Wisedome of this State that I thinke there needs no further confutation of it The Forts and Magazines surely are as attendants and adjuncts unto the Militia The militia of the Forts and Castles and that common reason teacheth the one to secure the Ammunition pertaining to the Militia and as a receptacle for the same commonly called the Store-houses for Armes the other to imploy the Militia in for the defence of the Land against the enemy Ratiâ— why the Forts and Castles dâ—fensible pertaine not to the King for surely the Forts and Castles defensible belong not unto the King in right for one speciall reason because if they should belong unto the King then you must grant him a power and right in the Militia to be imployed in the service of these Forts and Castles for to what purpose hath the King these if he cannot command the Militia of the Kingdome to defend them they are then in judgement of Law and reason houses or Princely Pallaces onely nor Forts or Castles so that you see in conclusion by Law and Reason we are come to this The right and power of the Militia of the Kingdome rules all Forts Ships Navie Magazines Castles all depend upon this therefore I hope I have spoken of these particulars sufficiently Object It may be objected that Sir Edw. Coke saith in his Institutes upon Littleton That no man can build a Castle defensible or of Military strength without leave of the King hence it may be inferred Sol. the King may build and consequently hold such a Castle or place of strength The ancient Common Law for the land Militia rules the Militia for the Forts and Castles but what of this he hath nothing to doe with the Militia this notwithstanding And if it should be granted otherwise yet he cannot defend it with any other Militia then of those persons that are hereunto especially bound by Tenure or Contract neither can any be forced out of their Shires contrary to the Law to defend this place of strength or Castle also that the King may build and hold a Castle defencible may thus be intended The Sheriffes possession the Kings
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
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