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A31803 His Maiesties answer to the declaration of both Hovses of Parliament concerning the Commission of Array of the 1 of July 1642. Charles I, King of England, 1600-1649. 1642 (1642) Wing C2115; ESTC R26443 44,134 101

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by which We would be loath to bind our Subjects Neverthelesse though Preambles be not in themselves sufficient to declare Laws yet We deny not they are of good use though not convincing Arguments to expound them And for Our power in the matter of Rebellion besides what hath been said We might also adde if it were materiall to this Commission Preambles Recitals and other necessary Inferences out of other Statutes made since those intended in this Recitall which would prove that in case of Rebellion all Our Subjects ought to assist Us and to attend Our Person upon Our command for the defence thereof whensoever We should require it And the truth is the occasion of this Act now urged against Us appears to be for the service of Ireland and the intention of it for so much as is the enacting part was to take away all question concerning the pressing of the Subjects of England for the suppression of the Rebellion in Ireland And so concerned forraign service and not home defence either against Invasion of Enemies or Rebels And thus far the work of the Declaration hath been to overthrow Our Commission by Statutes alleadged to be directly against it There remains yet some other Objections drawn from the opinion of former Parliaments and the practice of Our selves and Our Predecessors and those not directly but by inferences But these as we shall shew are so farre from concluding against Our Commission that they rather prove the contrary The first of these Objections is upon the Statutes of 1. Jac. c. 25. and 21. Iac. c. 28. of Repeals And is thus That the Statute of 4 5. Ph. M. cap. 2. having repealed this Commission for so the Declaration supposeth They had shewed little care of their own and the Subjects liberty in the Parliament of ● Iac. to repeal that Statute thereby to revive the power of this Commission which would have subjected the people to far greater bondage and from thence inferreth That it is not probable that the Parliament of 1. Jac. would have repealed 4 5 Ph. M. As lik●wise from the Statute of 21. Iac. which repealed the Statutes of 13. E. 1. and 33. H. 8. That it is not probable that the Parliament of 21. Jac. would have repealed those Statutes which in a moderate manner proportioned the Arms every man was to find in certainty And suffer an Act meaning this of 5. H. 4. to continue which established a power in the King without limitation not only to impose Arms but to command the persons of the Subjects at pleasure To this We say that both the grounds of this Objection are mistaken For as We have already shewed neither is this Commission repealed by the Act of 4 5 P. M. Nor is there any such unlimited Power given or Bondage by it as is pretended And therefore Our Answer is That it is no wonder that those Parliaments might repeal 4 5 P. M. as too hard and 13. E. 1. 33 H. 8. as of no use and put the Militia of this Kingdom again wholly under the powers of this Commission being so indifferent between both the other And indeed the Militia did after continue under Lievtenants who had in effect the powers given by this Commission And now We shall return this Objection thus That those Parliaments of 1. Jac. and 21. Iac. would have shewed little care of the safety and defence of the Kingdom to have repealed those Statutes which made provision for Arms if they had thought there were no Law or Power left in the King to charge men with Arms for defence of the Kingdom as the Declaration affirmes the Law now to be But whosoever considers that at that time and long before the power of imposing arms was put in execution by Lievtenants and Deputy-Lievtenants by authority of their Commissions which to this purpose are the same with Our Commissions of Array and that this power was not complained of in those Parliaments must conclude it more then probable that those Parliaments did then conceive there was a sufficient power remaining in the King to impose Arms The next Objection is from the opinion of the Parliament of 4. and 5. Philip Mary c. 3 That if Our Commission had been authorized by Act of Parliament that Statute of Ph. Mar. had been to little purpose whereby the penalty of Imprisonment for ten dayes or forty shillings is imposed upon such as do not appear at Musters being Summoned thereunto by the Kings Commissioners authorized for that purpose Intimating as that the Act of Phil Mar. would never have been made if they had then conceived that We had power to grant such Commissions To this We answer That the particular Arms and proportions of Arms were then before appointed by the Statute of 4. and 5. Ph. Mar. Cap. 2. under certain penalties upon those who should be defective and so a great part of the care of the Commissioners of Array was supplyed by the provision of that Statute and the Commissions of Array being not so proper but in time of Danger and of a larger extent then the power of mustering a Commission of Muster which is part of the power of a Commission of Array would then serve the ordinary turn and for every ordinary default but at a Muster in a time of no Danger the punishment by 4. and 5. Ph. Mar. cap. 3. was great enough And for return of this Objection We say as We observed before That this Statute gives no new power to grant Commissions for Musters but admits the power to grant such Commissions to have been in the King before that time And whereas the Statute of 13. E. 1. appoints no other Officers but the Constables for view of arms it appears by these Statutes of Phil. and Mar. that the King might appoint His Commissioners which he could not if this power of Arms had been wholly grounded upon that Statute The Last Objection of this nature is grounded upon the Common opinion or practice And is this That the Commissions of Lievtenancy so grievous to the people and declared illegall in Parliament had not been so often issued and so much pressed upon them if the Commission of Array not much differing from it in power and not at all lesse grievous to the Subject might by the warrant and authority of the Laws of this Realm have supplied their room To this Our Answer is That it stands upon two grounds First That the Commissions of Lievtenancy were grievous Secondly That they were illegall both which so far forth at least as to the powers wherein they did not exceed the power of this Commission for the other powers are not now in question are cleerly mistaken For as for the grievousnesse we say these Commissions were such as had been long used in the happiest times of Our Predecessors and continued to Our Time And such grievances as did or might arise in the execution
and if any such Votes had been We doubt not but We should have found them inserted in this Declaration And a particular complaint of so great a grievance as Our Commission is made to be would have been expressed in the Preamble of the Petition with the Quotations of Statutes to the contrary as was done concerning other grievances But in truth it is well known That about that time upon occasion of Our wars there were divers other charges imposed by Our Lievtenants and others of a far differing nature most of which were by direction from Us or Our Privie Councell according to the exigency of the time and some former practice And We do beleeve that there was at that time neither complaint or occasion of complaint against the imposing of Arms for home defence of the Kingdom Howsoever We are sure that no such complaint was particularly represented unto Us or Our Answer intended thereunto And now to cleer this sence of the Petition 〈◊〉 of the judgement of both Our Houses this 〈◊〉 Parliament We demand this Question If so be the imposing Arms for defence be a charge upon the Subject within the meaning of this Petition how the two Houses will justifie their Ordinance which We are sure they will not call an Act of Parliament for without an Act of Parliament no charge thereby provided against can be imposed upon the Subject the words being plain That no man shall be compelled to make or yeeld any Gift Loan Benevolence Tax or other such like charge without common consent by Act of Parliament And now since this Declaration hath given Us such occasion to examine Our Commission upon the Petition of Right We shall conclude out of that Petition That that Parliament did conceive the powers of this Commission warrantable in every point For it is plainly to be observed that the Commons did then take into consideration the generall grievances of the Kingdom more particularly concerning Military affaires and therein the actions of Lord Lievtenants and Deputy-Lievtenants with their Commissions and powers and their exceeding of their power as expressely the billeting of Souldiers and the payment of Billet-money Muster-masters fees and others of that nature were then in dispute And although the two Houses could not but take notice of the imposing of Arms upon the Subject by Our Commission of Lievtenancy their powers to Levy call together Arm Array Train and Muster Our Subjects inhabiting in Our severall Counties and to conduct and lead them against all Our Enemies and all Rebels and Traytors from time to time as need should require in which particulars they contained the powers of Our Commission of Array Yet the Complaint was not made against them for what they did by vertue of their Commission no more then against the Justices of Peace though complained of together with the Lievtenants but for matters wherein they did exceed their Commission upon the Command or direction from Us or Our Councell the Petition throughout distinguishing betwixt such Commands or directions and Our Commissions So that We conclude here was not only an admission but an approbation of those powers by that Parliament We come now to the recitall in the Preamble of the late Statute made this Parliament The words are these For as much as great Commotions and Rebellions have been lately raised and stirred up in His Majesties Kingdom of Ireland by the wicked plots and conspiracies of divers of His Majesties Subjects there being traiterously affected to the great endangering not only of the said Kingdom but also of this Kingdom of England unlesse a speedy course be taken for the proventing hereof And for the raising and pressing of men for those Services And whereas by the Laws of this Realm none of His Majesties Subjects ought to be impressed or compelled to go out of His County to serve as a Souldier in the Wars except in case of necessity of the sudden coming in of strange Enemies into the Kingdom or except they be otherwise bound by the Tenure of their Lands or possessions c. upon which Preamble there is in that Statute some provision made for a time for raising and impressing men for those Services And upon this Preamble the conclusion is made in these words That this Commission is directly contrary to this Declaration is so evident that it requireth no application To this Objection We say We might make Our Answer as short as the inference is by affirming That it is evident that this Commission is not contrary to this recitall And surely We think that what We have already opened being applyed to this Objection would warrant that Answer But that We may leave nothing undone that may tend towards the full satisfaction of Our good people We shall also give this a particular answer First We say That if this recitall had been an Act yet there were nothing in Our Commission contrary to the letter of it for that by this Commision no man is compellable by any speciall words to go out of his County And the generall words giving power to the Commissioners for leading them to the Sea-coast or elsewhere as We have often repeated are with these limitations They are to lead them but when there is imminent Danger of enemies for defence of the Kingdom and then only they are to be led to such places as shall be necessary for the expulsion vanquishing and destruction of the said enemies And this is a case of necessity both within the words of this recitall and according to the sense of the same words in the Statute of 1. E. 3. and 4. H. 4. therein meant as We have before shewed And thus we might leave this Objection but that it implies a matter of a greater consequence then plainly appears That recitalls of the Law in Preambles of Statutes are binding For in this Objection this recitall is called a Declaration of the Law and Our Commission sard to be contrary to that Statute and it further implies That even in the greatest and most horrid Rebellion the Subject cannot be compelled out of the County for the suppression thereof But to this We answor That the difference is apparent between an Act of Parliament declarative and a recitall in a Preamble For such an Act in any matter though mistaken being assented unto by Us and Our two Houses is equally binding as having equall authority with an Act introductive of a new Law But the recitall in a Preamble is no part of the Act the Royall assent being only to that which is expressely or tacitely prayed to be enacted Nor can it any wayes so much as imply Our opinion For otherwise Kings must be inforced oftentimes to deny a good Law for an ill Preamble The consequence whereof is great in such an Act as requires expedition where a Bill once denyed is not regularly to be offered again in that Session of Parliament And if it were needfull divers mistakes of the Law in Preambles might be produced