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
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
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
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