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
debate or censure but a retarding of Justice If Judgement be given against the King he cannot examine this iudgement in an extrajudiciall way before himselfe but it must he subject to censure or debate in a legall way by Writ of Errour or the like An offence committed in the presence of a Court of Justice great and more capitall then in the presence of the King I need say no more for the proofe of this I will present you with the great Majesty that doth attend the administration of Justice and that is this An Offence committed in the presence of a Court of Justice is a greater Crime and more Capitall then in the presence of the King killing the Chancellor or Judge of either Bench doing his office is High Treason by the expresse words of 25. E. 3. not so if from the Bench though in presence of the King striking any man in Westminster Hall in presence of the Courts of Justice is the losse of a mans right hand and his goods and chattels not so in the Pallace or presence of the King unlesse blood shed ensue upon it and that is specially by Statute not by common Law but because alâ— have touched upon this before I will returne to the discourse intended It is manifest that the Law is the square and rule by which both King and people are directed and regulated in inferiour Courts What shall we then say to the high Court of Parliament in comparison of which all other Courts are but Tanquam viburna cupresso like shrubs to the lofty Cypresse or Cedar from whose fulnesse and abundance all other Courts receive even their power and authority There is an enemy at hand Object a strong objection and that is that this is no Parliament they have no plenitude of power without the King and the rest of the Lords and Commons now absent and by this they thinke to invalide all that hath been formerly spoken To which I answer Sol. That first the Parliament must he admitted to be a Court of Justice without the Kings Personall presence his legall presence being inseparable from this Court like as from all other his Courts of Justice and the contrary I suppose no man that is rationall will affirme Further I conceive in inferiour Courts his personall presence is against Law in point of Judgement in any matter between the King and his people for then the King should be Judge in his owne Cause contrary to the rule of Law Ministeriall or judiciall Acts not incident to the Regall dignity which saith That the Kings cannot doe any Act ministeriall to himselfe aâ— to take a Recogniâ—â—nce pro securitate paâ—is or the like much lord doe any Act judiciall betwixt himselfe and his people yea not onely so but he might fit in one Court and reverse a Judgement given against himselfe in another Court which how injurious this same would be unto the subject how dishonounourable and scandalous to the Court of Justice I suppose the weakest capacity doth apprehend Therefore the wisedomes of the 〈◊〉 hath appointed the sage and learned men being sworne to administer Justice indifferently betwixt the King and his people Court of B. Le R. B. C. Courts of Justice time out of minde and Magna Cart. ca. to did not â—reate and constitute the Court of C. B it did only settle it in Locâ— câ—â—tâ— No Courts of Justice at the first in the subject â—s now but all dispensation of Justice in the Crown viz. by the Kings ministery And the Opinion of Fineaux chiefe Justice in the time of King Henry the 7 That all administration of Justice into at first in the Crowne is to be understâ—â—d with this distinction it was not in that Regall period aâ— to the dispensation of it but it was in the regall Ministers or the Judges and so might be said to be in the Crowne according to the rule of Law Qui â—er alium facit per seipsant fadere videniâ— If so in inferiour Courts the same law â—â—â—â—â—â—ed sway in that high Court of Parliament also the practice and course of that Court sheweth plainely that they are a Câ—â—rt of Justice without the personall â—reâ—eâ—ce of the King Witnesse their reverâ—â—â—â— erroâ—ious judgements given in inferiour â—â—â—rt â—aâ—â—ing illegall Parents Monopolies granted by the King and many other might here be remembred I have heard it formerly objected that the House of Commons could not take a Recognizance Pro securitate pacis of themselves but it was alwaies transmitted to the Lords therefore this House was no Court of Justice for this is incident to every Court of Justice that is of Record yea a Commissioner of Oier and Terminer may take a Recognizans as it seemeth and for proofe the Case in the 1 H. the 7.19 20. is urged for there it is expresly said That the transcript of a Writ of Error upon an erronious Judgement in the Kings Bench shall be brought into the House of Peeres Et per Dominos tantum non per communitatem assignabitur seneschallus qui cum Dominis spiritualibus temporalibus per concilium Justiciar procedet ad errorem corrigendum Hence it seemeth that the House of Commons of it selfe cannot examine any Judgement in inferiour Courts and therefore should seeme to be no distinct Court of Justice of it selfe As also that the House of Commons considered in relation to that joynt power of Judicature that it hath with the House of Lords cannot take a Recognizans as is before objected for so it may seeme to be implyed by this Case I answer Sol. because the weight of this objection seemeth great that this Case may be admitted for Law and yet the power of that High Court of the House of Commons no whit diminished for this Case must be intended of their joynt and entire power of Judicature Coâ—rts of Justice have no immediate cognizance of each others proâ—eedings but they must be certified hereof and that in a legall way Certificate implies no immediate cognizans for otherwise the House of Lords could take no immediate cognizance or knowledge of the proceedings of the House of Commons nor è converso the House of Commons of the proceedings of the House of Peeres but their proceedings ought to be legally certified and by the words in this Record you may see it was done in relation to that joynt power for the words are Per Dominos tantum non per communitatem c. Here the Commonalty must plainely be intended as member or part of that High Court or otherwise the words were meerely nugatory for what need this restriction if the House of Commons were not conjoyned with the Lords in entercourse of Justice but were a distinct Court and severall from the House of Peeres it were as much as if the Kings Beanch should be restrained from having any immediate Jurisdiction or Cognizans in matters pertaining to the Common Pleas a thing ridiculous and superfluous seeing by
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
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
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
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
not have been so easily parted withall The positive or the Militia limited by the positive lawes The ancient common law is the onely law positive now in force touching this Militia for Winchester is repealed Then we will leave this branch of the Militia as pertaining to the high Court of Parliament onely and we will come to the other branch of the Militia viz. that which is limited by the positive Lawes viz. the ancient Common Law that being onely in force at this day For this Branch of the Militia therefore and the constituting of the high Sheriffe of the County who hath the power of this Militia so farre as it hath relation to the positive Law yea and in some manner participating also of that great and absolute power The positive Militia in the Sheriffe yea and some shadow of the absolute or generall Militia in him also for he may compell any man within the County but no further for the preservation of the peace thereof to attend the defence thereof even those that are neither bound by Tenure nor Contract although the King hath used to constitute and appoint him by Patent This is but usage clearely for what is not warranted by 9 E. 2 De vicecomitatibus is but usage Nota. therefore the election of such a number by the Judges in the Exchequer the presenting them to the King and his election of one of them I leave unwarranted by this Law Indeed the Letters Patents granted by the King unto this great Officer of his Office I take it are warranted by this Statute Tacitè or by way of incidence or dependancy for all great Offices are to be authorized under the great Seale by Law But peradventure it may be objected Object that Sir Edw. Coke saith in his Magna Charta f. 55. That the persons chosen by the Judges in the Exchequer and the Kings election of one of them are warranted by some Statute in that behalfe and not by bare usage onely To which I answer Sol. That it is of great weight because it was the opinion of the Judges of England in H. the 6. his time but note that Sir Edw. Coke delivereth no opinion upon it himselfe neither is this Statute mentioned either by the Judges at that time nor by Sir Edward himselfe but onely so left but certainly the Statute intended must be 9 E. 2. De vicecomiâ— And it may further be said That it is a rule of Law that Optimus legum interpres esâ— consuetudo and therefore this constant usage since the said Statute is an interpretation of it But what if we should grant this you are still never the nearer the purpose The Militia positive in whom by law vested for here is onely a bare nomination or election of the Sheriffe no right of the Militia Concerning therefore the election of the high Sheriffe of the County there is no negative Law in point to take it from the Subject and anciently I finde clearely it did belong unto the Free-holders of the County by Statute and the Statute of 9. E. 2. 28 E. 1. ca. 8 of election of the Sheriffe in the Exchequer as it is now used is but onely affirmative Object But that I may not subject my selfe unto just censure I will anticipate and prevent what may be objected by the adverse part That these these two Statutes viz. of 28. E. 1. commonly called by Legists Articuli supra Chartas ca. 8. by which the Subjects right in the Militia and the election of the Sheriffe the minister of the Militia appears and the Statute of 9. E. 2. before named are the one contrary to the other in matter and therefore within the rulâ— of Leges posteriores priores contrarias abrogant although they be both in the affirmative To which I answer that they are not contrary in matter they differ onely in circumstance viz. Designation of other persons difference in circumstance no contrariety in matter Câ— 11. Re. Doâ—â— Fosters Case Stamfords prerogative f. 69. â— Two statutes affirmatively authoâ—â—â—â—e severall persons both statutes effectual Crâ— Jurisdiction of Courts 200. â— saith That 32 H. 8. taketh away 8. H. 6. It may be peradventure intended with this difference 28 E. 1. 9 E. 2. designe severall persons to elect the Sheriffe both statutes shall be in force by law Designation of the Persons that are to elect the Sheriffe and the rule of Law is That the designation of one person or persons in an Act of Parliament shall not exclude another person or persons which had authority to doe the same thing by an Act precedent as to put you but one case instead of many by 8. H. 6. ca. 16. The Câ—ancellour Treasurer and other Officers have power to demise Lands and Tenements afterwards 32. H. 8. ca. 46. gives authority to the Master of the Court of Wards with the advise of one of the Counsell of the said Court to demise the said Lands and Tenements mentioned in the former Statute yet this doth not take away the Statute of 8 H. 6. although that this last Act designe other persons for if before any Lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute 8 H. 6. then the Master of the Wards cannot demise and so if the Master of the Wards demiseth first then the Chancellour and Treasurer cannot demise by 8 H. 6. Many more cases I might here insert to cleare this particular come we then to our two Statutes the Statute of 28 E. â— designes the Free-holders of the County to chuse their Sheriffe The Statute of 9 E. 2. Not materiall if 9 E. 2. nullifie 28 E. 1. as you shall see hereafter appointeth the Judges in the Exchequer to chuse him Severall Acts affirmative designe severall persons to elect the Sheriffe both Statutes shall stand saith the Law if the one doth elect according to one Statute the others are fore-closed In statutes introductive the designation of the â—son matter of â—stance not â—umstance and so è contrario and the rule is true The designation of one person is the exclusion of another in Statutes which create a new Law but neither of these Statutes of 28 E. 1. or 9 E. 2. create any new Law concerning the Militia but in the designation of the persons which are to chuse the Militia this last Statute differs from the first therefore we may safely conclude Vbi lex non distinguit nec nos distinguere debemus I have searched all the comers of my heart to avoid Hypocrisie and of my understanding to avoid ignorance and I cannot finde but these cases are alike in Law Negative words alter the law therefore the 28. of E. is still in force and not abrogated Further if the words of this Law had been that they should have been chosen in the Exchequer by the Judges and by no other persons or and not elsewhere then peradventure these negative words
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