power or Counsell whatsoever because that in the presence of the most supreme jurisdiction the inferiour ceaseth I do not hereby intend that the power of the Judges in their severall Courts for the dispensation and execution of justice should cease in the Terme for that the Parliament is sitting at the same time And the reason is obvious for that these Courts have their proper and distinct jurisdictions from the Parliament and therefore cannot be superseded by it I intend by this onely that what the Parliament hath declared to be Law cannot as I have said before be countermanded by any other inferiour judgement whatsoever for that where the powers exercise the same jurisdiction they cannot both stand together but the greater will cashere and suspend the lesse so I say in our case But here it may be objected that the King is fons Justitiae that is the fountain of Justice and that he onely as Bracton saith Bract. fo 55. b. Ordinariam habet iurisdictionem dignitatem potestatem super omnes qui in regno suo sunt habet enim omnia iura in manu sua c. And a little after he saith Ea quae iurisdictionis sunt c. ea quae sunt Justitie c. annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam that is those things which appertain to jurisdiction and justice belong to no body but the Crown and royall dignity And as all justice and jurisdiction is primarily and originally in the King so they cannot be exercised by any other except that they be first delegated to them by the King And so saith Bracton a little after Jurisdictiones c. non possunt à privata persona possideri nec usus nec executio iuris nisi hoc datum fuorit ei desuper that is no jurisdiction nor execution of the Law can be exercised by any private person except that this power be first given unto him from the King So Bracton treating of jurisdiction saith Bract. fo 107. â— Videndum c. quis primo principaliter possit debet iudicare that is let us see who first and principally may and ought to judge And then he answereth Sciendum quod ipse Rex non alius si solus ad hoc sufficere possit eum ad hoc virtute sacramenti teneatur astrictus that is we must know that the King onely and no other if he alone may suffice For that he is bound to do it by vertue of his Oath And after in the next Chapter speaking of jurisdiction delegated he saith Bract fo 108. a Si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor c. he may saith he Constituere Justiciarios c. quibus referantur tam quaestiones super dubiis quam quaerimoniae super iniuriis c. that is if the King alone cannot suffise to determine all causes that his labour may be the more easie he may constitute Justices to whom as well doubts in Law may be referred as complaints upon injuries And in pursuance of this the King not possibly suffiâ—ing to exercise all jurisdiction himself hath in all ages delegated power and jurisdiction to a certain number of men and hath constituted them Judges and dispensers of the Law under his Majestie and in his right an 〈◊〉 to his people Now all this being admitted as in truth it cannot be denied the force of the objection stands thus is it so that no jurisdiction can be exercised by any except that it be first delegated to them by the King and that the King hath constituted certain persons to be his Judges of the Law why then it lieth not in the power of the two Houses of Parliament to declare what is Law and what not First because that they are not the proper Judges of it And secondly because that they have no such power given unto them by the King for what power they have it is derived by their Writ by which the King calleth them to Parliament and this onely requireth their presence Super dictis negotiis tractaturis and tractare is onely to treat of or debate the Law not to declare or give judgement what the Law is Besides this word tractare is contained onely in the Writ by which the Lords are summoned to Parliament and not in the Writ of the Commons for by that they are called onely as I remember the Writ is ad faciendum consentiendum to do and agree why then they have no such power to intermeddle with the debating of the Law much lesse to declare what the Law is To which I answer That the two Houses of Parliament conjoyned for I speak not of the power of the House of Commons distinct and by it self may not onely declare what the Law is but are the best and most proper Judges of it Are not they the ne plus ultra that the Subject hath for redresse in matter of Law are not they as common experience teacheth us the supreme Seat of Judicature and do not they exercise a superintendent jurisdiction over all other Courts and have not they power by a Writ of Error brought before them to reverse Judgements erroniously given in other Courts Without doubt they have witnesse that case of the Ship-money which Judgement could not possibly have been reversed but by the Parliament who upon debate declared that Judgement to be against the Law and how miserable this Common-wealth had been if they had not had this power the lamentable successe of devesting of the Subjects property without his consent by that damnable judgement contrary to all Law would have in short time been manifested to the whole world But to this it may be said that in these cases the Judges advise who sit as assistants in Parliament is demanded and that in such case the King by his Judges doth declare what the Law is To this I answer that because the Parliament may demand the advise of the Judges who sit there to that intent will it therefore follow that they are tied to it or having demanded their advise must the consequence be that they are bound to follow it without question nothing lesse for this were to tie my judgement to another mans principles which ought not to be And it were absurd for to think that the Parliament who are the supreme seat of Judicature should be tied to subscribe to the judgement of any inferiour power whatsoever And now I shall put you one case posito that all the Judges of England assembled together in the Chequer Chamber to give judgement in a point of Law should all concurre in their judgements and should give judgement accordingly and after in a Writ of Error brought in Parliament this judgement should be reversed doe not the Parliament onely in this case declare what the Law is Without question they doe for I suppose that there is none so stupid as
AN ARGUMENT OR DEBATE IN LAW OF THE GREAT QVESTION CONCERNING THE MILITIA As it is now settled by ORDINANCE of both the HOUSES of PARLIAMENT By which it is endeavoured to prove the Legalitie of it and to make it warrantable by the fundamentall Laws of the Land In which Answer is also given to all Objections that do arise either directly or collaterally concerning the same All which is referred to the judicious Reader By J. Marsh C. L. LONDON Printed by Tho. Paine and M. Simmons for Tho. Vnderhill at the Bible in Wood-street 1642. TO THE READER Courteous READER THat which I framed for my own private satisfaction onely in these distracted times in which every man that resolves not to stand Neuter ought to have his conscience poysed by good grounds and principles lâ—st that it suffer shipwrack in the conclusion I do here though unwillingly present to the publique view in which weak and poore indeavour I have borrowed some of the Parliaments grounds to exspatiate my self upon that I might the better convince thy iudgement and mine own but the greater part are mine which I hope will not blast the rest nor make it unfruitfull to thee but rather more fully inform satisfie and convince thee of the truth of the Parliaments assertions and to this end I have not used any affected style but have to the utmost of my endeavour invested the Law with its own plainnesse and integrity for I have alwayes raised this conclusion to my self that where I look for words there I expect least Law which is confirmed unto thee as a truth in these dayes Now Reader shortly to conclude this for the Work doth not deserve a Preface or Epistle if happily there may be any thing in it that may merit thy more serious consideration and make thee a true Subiect to the King by being faithfull to the Parliament I shall expect no greater areward of my labour then that confidently beleeving that the issue of it will be thine and my happinesse Farewell Thine to love and serve thee J. Marsh. AN ARGVMENT IN MAINTENANCE OF THE MILITIA Setled by ORDINANCE of PARLIAMENT THe generall Question is but shortly this Whether the Militia as it is now setled by both the Houses of Parliament be warrantable by Law or not The Case with the Circumstances upon which this generall Question is stated depends upon these two Quaeres 1. Whether the King by his Prerogative hath the sole and onely power of ordering and disposing of the Militia of his Kingdome or not Admitting that he hath then the next and maine scruple is 2. Whether both the Houses of Parliament in time of imminent danger the King refusing to settle the Militia for the defence and securitie of his people may by an Ordinance of Parliament without his Majesties consent settle the Militia and put the Kingdome into a posture of defence or not 1. For the first point I conceive very clearly that the King by his Prerogative warrantable by the Lawes of the Land performing the trust reposed in him hath the onely power of disposing of the Militia of this Kingdome and therefore I shall not debate this so much out of scruple or doubt as to give satisfaction to the unlearned and I shall prove it in reason thus The King is Caput Reipublicae pater patriae that is the head of the Common-wealth and Father of his Countrey and hath this great trust committed to him by God and his people of governing of them in peace and happinesse by maintaining and defending of their Religion Lawes and Liberties which that he may be the more obliged to doe he taketh a solemne Oath at his Coronation that he will doe and performe this according to the trust reposed in him the due execution whereof being of so high consequence to this Kingdome and of so great difficultie to himselfe and therefore not to be executed without great care circumspection and trouble the Lawes and Constitutions of this Realme hath in favour and ayde of his Majestie who is intended alwayes to be imployed and negotiated Cirea ardua regni about the high things of the Kingdome allowed unto him many prerogatives priviledges and exemptions above all his Subjects Among which I take this in our Case to be one for as our Religion Lawes and Liberties are committed in trust to the King so are our lives also which he is bound to defend aswell by the materall sword if occasion be as by the sword of Justice and therefore as it is well knowne all prosecutions by way of Indictment against any man for the taking away of the life of another are at the suite of the King and the King onely can pardon the offence and no other For he alone hath the charge of the lives of his Subjects committed to him and this is such an inseperable trust that the King cannot grant this over to another as it is resolved in 20. H. 7. where it is said â—â— H. 7. fo 8. a. That a grant of power to pardon Felons by the King to another is not good for that it is a prerogative annexed to the Crowne and cannot be severed But here it is not to be understood that no prerogative of the King can be severed from the Crowne for some may as I shall afterwards shew and that by grant of the King too but that this among others is such a prerogative as cannot be severed and the reason of this is as I conceive for that the life of a man is of so high and puissant nature that none lesse then God or the King ought to have interest and power in and though the Common-wealth loose a member it is the King onely who looseth a Subject and therefore the killing of a man is said in the Indictment to be against his Crowne and dignitie and not against the Common-wealth for though mediately it be an offence against the Common-wealth too yet it is a more neare and immediate offence against the King for that he is intrusted with the lives of his Subjects Now as the King is bound to defend his Subjects by the Law so in like manner he is bound to defend and protect them by the Sword if occasion be as I have said before from all danger both of forraigne and domesticke enemies And therefore as there is a Leigeance that is a faithfull and true obedience of the Subject due to his Soveraigne as it is interpreted in the 7. Rep. Calvines case â— Rep. Calvins â—â—se So there is a protection due from the Soveraigne to the Subject for he ought not onely regere to rule but also Protegere subditos suos to protect his Subjects So as betweene the Soveraigne and Subject there is Duplex reciprocum ligamen that is a double and reciprocall bond Quia sicut subditus regi tenetur ad obedientiam ita Rex subdito tenetur ad protectionem for as the Subject is bound to obey the King so the King
Lawes in justice and equitie unto his people but will it therefore follow that when he hath made such and such to be his Judges that he may either retarde their proceedings or countermand their judgements under favour nothing lesse Againe as I have shewed before they are punishable by the Law for withdrawing of themselves and it were hard that the King should have power to command me that act which being done subjects me to a severe punishment Now for that part of the objection that they are but his Counsellors and not his Judges to that I shall give as I hope a full and satisfactory answer afterwards And now I shall conclude this first ground or reason with another answer to the objection against the imminent danger and this I ground upon the words in the Kings Writ by which he summons the Lords to Parliament in the body of which Writ he saith Mandamus quod consideratis dictorum negotiorum arduitate periculis imminentibus cessante excusatione quacunque dictis die loco personalitèr intersitis nobiscum c. that is we command you that considering the greatnesse of the businesse and the imminent dangers laying afide all excuse you be personally with us the said day and place c. Here the King by his Writ saith expressely that at the time of the calling of this Parliament there was an imminent danger and as now it should be dishonourable for the King to contradict himselfe so I doe not conceive that he shall be received to deny that extrajudicially which he hath confessed by his Writ judicially But to this it will be said that the Writ Est breve formatum that is it is a formed Writ or a Writ of course and that there is no other and that from this there is no varying so that be the occasion of calling of the Parliament what it will the same form ought to be puâ—sued and no other and therefore it is no concluding reason that there is an imminent danger because the Writ saith so To this I answer that we ought not to presume that the King will speak any thing in a judiciall way as here he doth which should be vain and superfluous besides if you consider the time in which this Parliament was called when that the Scottish Army was in England and at which time such distractions and rumours of warres did I say rumours of warres I might have said Warre it self was amongst us when that the extreme insolencie and pride of the Clergie together with the darknesse of superstition and Popery had almost overwhelmed this Nation with imminent destruction and misery the fear of which doth yet cloud the face of the poore Commonalty I say these things considered we may justly conclude that the King at that time spake as he intended and therefore certainly now he shall not be received to contradict it Wherefore I conclude this first reason that by reason of the imminent danger which threatens the Common-wealth the King refusing to settle the Militia the Parliament may well do it Secondly I hold that the Parliament may do it for that the King by his refusall hath made a breach of that trust that is committed to him by God and his people that there is a trust committed to him and that the greatest also that any one under God can have I have in part demonstrated it before for I have shewn how that he is bound by the Law to defend and protect his people their lives liberties and estates from any forrein or domestick danger and saith Fortescue ca. 13. cited before â—â—â—tesc ca. 13. Rex ad tutelem legis corporum bonorum erectus est he is erected King for this purpose and intent to defend the Law the bodies and goods of his Subjects And he saith himself as I have likewise shewed before in the Commission directed to Commissioners of Sewers that by reason of his royall dignity Astrictus est ad providendum salvationi regni sui He is bound to secure his kingdom And this he is bound to do by the Law and Justice for he ought to rule according to Law and for this purpose he is intrusted with the Law also and therefore in 8. H. 7. it is said 〈…〉 7. fo 1. 2. that the King is conservator of the Law the which is the Common-weal As if it had been said the Common-weal depends upon the Kings well keeping and observing of the Law And in many places of Bracton amongst which this is one fo 55. b. he saith â—â—â—ct fo 55. b. Sciendum quod ipse Dominus Rex ordinariam habet jurisdictionem dignitatem potestatem super omnes qui in regno suo sunt habet enim omnia jura in manu sua quae ad Coronam laicam pertinent potestatem materialem gladium qui pertinet ad regni gubernaculum habet etiam iustitiam iudicium quae sunt iurisdictiones ut ex iurisdictione sua sicut Dei Minister tribuat unicuique quod suum fuerit that is we must know that the King hath ordinary jurisdiction and dignitie and power above all which are in his kingdom for he hath all the Laws in his hand which do pertain to the Crown and lay power and the materiall sword which belongeth to the government of his kingdom he hath also justice and judgement which are jurisdictions that by his jurisdiction as Gods Minister he may give to every one that which is his own Here you may see that the King is intrusted with the Laws and Justice as also with the materiall Sword to this end that he may defend his people committed to his charge as well by force if occasion be as by righteous judgement And to this also he is bound by his Oath as I have said before which I find in Bracton fo 107. Bract. fo 107 a. ca. 9. by which he sweareth that In omnibus iudiciis aequitatem praecipiet c. ut per Justitiam suam firma gaudent pace universi that is that he will use equitie in all his judgements that all men may injoy a firm peace by his justice And there he further saith that ad hoc creatus est electus ut iustitiam faciat universis c. quod iustè iudicaverit sustineat defendet c. He is created and elected King for this purpose and intent to do justice to all men and that he should judge justly sustain and defend them And with this accords 6. H. 7. where it is said 6. H. 7. 16. that the King is bound for to do right to parties And as he ought to rule according to Law so he himself ought to be governed by the Law as I have shewed before And as Bracton saith Bract. fo 5. b. fol. 5. b. Ipse autem Rex non debet esse sub homine sed sub Deo sub Lege quia Lâ—x facit Legem The King ought not to be under man but
under God and the Law Now I conceive that it is manifest that the King is intrusted with the Laws lives liberties and estates of his Subjects all which he of right ought to defend in peace and tranquillity as he also by his Oath is bound and therefore Bracton saith Bract. fo 55. â— Est Corona Regis facere iustitiam iudicium tenere pacem sine quibus corona consistere non potest nec tenere It is the Crown of the King to do justice and judgement and to maintain peace without which his Crown cannot stand and continue as if he had said it is so essentiall to the King to do justice and judgement and to maintain peace that you destroy the Crown if you take away these Now I shall prove that the King hath made a breach of this great trust committed to him foure wayes First by denying of his Protection to his people Secondly by not supporting of the Laws and the Priviledges of Parliament Thirdly by not endeavouring to maintain peace amongst his people And fourthly and lastly by denying of Justice and in all these particulars I shall prove that the King hath broken the trust committed to him And first he hath broken the trust committed to him by denying of his protection and this he hath done three wayes 1. By denying of his legall protection that is in not protecting of his people according to Law and this he hath done by denying to settle the Militia by the advise of his great Counsell according to Law by whom onely during Parliament he ought to be advised for during the continuance of this great Counsell all inferiour Counsels ought to cease and therfore the Counsell of others neither can nor ought to countermand theirs but of this I shall speak more fully afterwards 2. The King hath denied his Royall protection to his people in taking up of Arms against his Parliament who is the representative Body of the whole Kingdom and this is the most strong refusall of his protection of all others for by this he doth not refuse onely to protect them but he goes about to destroy them whom by the Law and his Oath he is bound to preserve and defend And thirdly and lastly he hath denied his royall protection to his people in this that in time of imminent danger to the Kingdom he hath denied to settle the Militia and he that denies the means denies the end For it is a rule with us in our Law that Qui tollit medium tollit quoque finem He that takes away the means takes away the end And it is all one in effect to deny a thing as to deny the means per quod pervenitur ad illud by which you may come to the thing Now it is clear that the sole means under God to defend this kingdom in time of imminent danger from its enemies either forrain or domestick is by settling of the Militia and by putting of the Forts and Magazine of the kingdom into faithfull and true hands such as may be confided in being a matter of so great consequence and of so high importance to the whole Common-weal Now the King refusing to do this doth he not in effect deny his protection to his people for denying of the means it is all one as if he had denied the end so that I conceive for these reasons the King hath denied to protect his people as by the Law he is bound and therefore hath made a breach of the trust that is reposed in him Secondly I conceive that the King hath broken this great trust in not supporting of the Laws and the priviledges of Parliament that he hath not maintained the Law appeareth plainly by that that I have said before for that he hath refused to be ruled by it as he ought for though that he is not sub homine under man yet he is sub Lege under the Law as I have shewed before and therefore ought to be governed by it And what is this but a refusing to be ruled by Law when he refuseth upon the prayer of his Parliament to settle the Militia for the defence of his Kingdom and people according to Law And that the King hath broken the Priviledges of Parliament what more plain I might instance in many things but I shall instance in onely one or two And here I appeal to all the world whether his withdrawing of himself from his Parliament and not onely so but his endeavouring by his many detractions and imputations laid upon his Parliament to withdraw all the hearts of his people from them likewise and which is yet worse his supporting and maintaining of such men and keeping of them from justice and their condigne punishment who are Delinquents in a high nature against his Parliament I say that I appeal to all the world whether these be not great breaches of the Priviledges of Parliament and what greater breach of the priviledges of Parliament can there be then to protect and defend them without any colour of Law or justice who indeavour nothing but the ruine of Parliament and in this of our Laws lives and liberties so I conceive that this also is a breach of that great trust which is reposed in his Majestie by God his people and the Laws of the Land Thirdly I conceive that the King hath infringed this great trust by not indeavouring to maintaine peace and this two wayes by his commission and omission by his commission in taking up of Armes against his people as I have said before and then by his omission and not onely so but by an absolute refusall in this time of imminent danger to settle the Kingdome in a posture of defence the sole meanes under God as I have said to maintaine peace and tranquillitie amongst us and this iâ— against his Oath also which the King himselfe was pleased of late to publish to his people which I finde likewise expressely in Bracton Bract. fo 107. that the King first sweareth Se esse praecepturum pro viribus opem impensurum ut Ecclesiae Dei omni populo Christiano vera pax omni suo tempore observetur that is that he will indeavour to the utmost of his power that true peace may be kept observed to the Church of God and to all Christian people all his dayes Fourthly and lastly I conceive that the King hath broken his trust by denying of justice and this he hath done two wayes sirst by denying to surrender up Delinquents to the Justice of the Law and secondly by denying to settle the Militia by and according to the advise of his great Counsell the Parliament Now that the King is obliged to doe Justice it is without question for his very Oath as I have shewed before ties him expressely to it and so is 6. H. 7. cited before and Bracton fo 107. a. where he saith Bracton fo 10â—… that Ad hoe creatus est electus ut justitiam
faciat universis c. He is created and elected King for this purpose and intent that he may doe justice to all men And what greater act of Justice can there be then for the King to defend his people in peace or what greater act of Justice can there be then for the King at the request of his people represented by the body of Parliament to enact such Lawes which conduce to the maintaining of peace Certainly none And this Bracton seemeth to intimate Bracton fo 10â—… Sinon esset qui justitiam faceret pax de facili potest exterminari c. If there were not one who would doe Justice peace might easily be extirminated Here note that he doth not say that our lives Lawes Liberties or Estates for want of Justice might easily be extirminated but our peace by this as it were concentering all Justice in this act of maintaining peace and without question all our happinesse under God consists in the supporting and maintaining of peace for take that away and all things fall to utter ruine and destruction And certainly if it be thus that the greatest act of Justice in the King that can be consists in maintaining of peace and in granting of such Lawes which conduce unto this end without question the denying of this by the King must needs be the greatest act of injustice in the King that can be and by consequence a breach of that trust that is reposed in his Majestie And therefore I doe conceive that at the least in this the King can have no negative voyce and I doe not conceive that the King can have any negative voyce in Parliament in other things for if the King by his Oath and the Law of the Land be obliged to doe Justice as in truth he is and if it be as great an act of Justice in the King as can be not onely justly to dispence the Lawes in esse in being to his people but also to grant such new Lawes unto them as conduce to the well governing of them in peace and happinesse Why then certainly it must of necessitie follow that the King can have no negative voyce but is bound under this heavie sinne of the breach of his Oath and the Lawes of the Land to grant such Lawes as are requested of him by his people But here it may be objected that the King had this Prerogative by the Law that he might have called a Parliament when he pleased and there was no positive Law to the contrary before this Parliament in which the King hath devested himselfe of this power and if before at the request of his people he had not been pleased to grant them a Parliament why this in effect was a denier of Justice for that the King denied the meanes by which it might be obteined and yet this was lawfull for him to doe therefore it will be concluded that by the same reason he may have a negative voyce in Parliament And Cromp. Jur. of Courts saith expressely Cro. Iur. fo 7. b. that when the King doth assent to a Bill then he writes upon the Bill L' Roy veult that is the King will have it so and if he doth not assent then it is indorsed L'Roy advisera that the King will advise here it doth appeare how the King hath a negative voyce allowed him by the Law To this I answer and agree these Prerogatives de facto to be in the King but whether in truth they be such as are compatible and may stand with the Oath and Justice of the King this may be questionable and under favour I conceive that they cannot for that as I have shewed his Oath and the Lawes of the Land ties his Majestie to doe Justice to his people and the granting of new Laws unto them upon their request is an Act of Justice and therefore he cannot denie them without breach of his Oath and the Lawes of the Land and by consequence these prerogatives are not compatible with the Oath and Justice of the King and though peradventure the Law may dispence with it selfe yet it cannot with the Oath of the King Wherefore I conceive notwithstanding this objection that the King can have no negative voyce but of this onely by the way And is it thus that the King hath made a breach of that trust reposed in him by God and his people as in truth I have cleered it unto you then none so proper to supply this defect in his Majestie by the disposing of the Militia for the defence and protection of the King Kingdome as the Parliament who are at this time entrusted under God not onely with our esse with our being but with our bene esse with our well-being also But here it may be objected that the King derives his Crowne and regall power from God and that therefore he is responsible to God alone for his actions and not to man To this I answer that it is a most strange Episcopall and illegall objection for what is this but the attributing of a power to the King above Law and the giving of him such a prerogative that should not be subject to those Constitutions which his predecessors before him had been and though it should be admitted that as all power is derived originally from God so especially this yet it doth not follow that it was therefore conferred by an extraordinary and immediate hand of God as it was upon Saul and David 1 Sam. 9. 24. yet they likewise were confirmed and approved by the people as you may reade in holy Writ Besides Saul and David lived not under any Municipall or positive Constitutions of men which they were bound to maintaine and observe as the King of England doth and therefore it must needs be that their power must be more absolute which was not circumscribed within the bounds and limits of any humane Lawes But now the Kings of England having subjected themselves to the Law of the Land and received their Crownes with that trust and tacite condition of defending of the Lawes lives and liberties of their Subjects the Law were idle and vaine if there should be none that should have this power for the breach of this trust by his Majestie to interpose for the securing of him his Lawes and people And if this divine prerogative which the Bishops doe so buzze into the Kings eares should be admitted I would faine know what difference would be made betwixt an absolute Monarke and the King of England and cleerely this was never reputed for other nor can be the Crowne being subject to the Law as well as the people then a mixt Monarchy but I shall conclude this that they who so much defend and exalt this divine prerogative would in the conclusion if they might have their way upon the same ground advance the Miter above the Crowne God open the Kings eyes that he may see and acknowledge himselfe subject to the Lawes and may rule his
to be regularly true in the Law that that which is not grantable is not forfeitable yet God forbid that his great Counsell for his misuser or non-user of his Kingly function should not have power for the breach of this tacite condition to apply themselves by all lawfull meanes for the securing of him and his Kingdome I shall compare this case to one case onely lately adjudged viz. Hill 17. Car. in the Kings Bench Langhams case Hill 17. Car. in Banco Regis Langhams case where the case was thus Langham a Citizen and free-man of London was elected Alderman of the Citie and being called to take his Oath refused for which he was committed to prison by the Court of Aldermen upon which he prayed his Habeas corpus in the Kings Bench and it was granted unto him and upon the returne of the Writ they did alledge that they had this custome that if any man were elected Alderman of the Citie and refused to take the Oath that the Court of Aldermen had used time out of minde to imprison the party so refusing and then they set forth de facto how that Langham being a Citizen and free-man of London was duely elected Alderman of such a Ward and that he being called to take the Oath refused and that therefore he was committed by the Court of Aldermen and the question here was whether the custome to imprison the body of a free-man were a good custome or not and it was resolved upon solemne debate by all the Judges of the Kings Bench that the custome as this case is is a good custome and this is the difference that was taken by them that a custome generally for a Court of Record to imprison the body of a freeman is no good custom for that it is against the libertie of the Subject and Magna Charta by which it is enacted Quod nullus liber homo capiatur aut imprisonetur c. that is that no free-man be taken or imprisoned 9. H. 3. ca â—… but Perâ—legem terrae c. by the Law of the Land But a custome as in this case for to imprison the body of a freeman for refusing to take an office upon him which is for the support of government and without which government cannot subsist which by consequence strikes at the very esse and foundation of the Common-wealth for that it cannot stand without government such a custome was resolved to be a good custome Now I shall compare this case with the case in question it is here resolved that a custome for to imprison the body of a freeman for refusing to do such a thing which by consequence reflects upon the Common wealth and may indanger it that this is a good custome now thus stands the paralell and as the rule of Law is Vbi eadem ratio ibi idem jus where there is the same reason there ought to be the same Law Now the same Law that defends the Kings prerogative from violation or seperation from the Crown doth as strongly Et eodem jure by the same right defend the liberty and freedome of every private mans person from imprisonment for though the interest and priviledge of the King doe farre transcend any singular and private persons being compared with them yet they stand in equipage In equali jure that is in equall right being compared with the Common-weale and therefore aswell the interest of the King as of his Subject Debent cedere Republicae ought to give way to the Common-wealth And yet we see that as a mans person for the good of the Common-wealth shall be set at large and free from imprisonment as it is resolved in 36. 37. H. 8. Dyer 36. 37. â—… Dyer fo â—… Trewynniâ—… Case Where a man was elected a Burges of Parliament and being in execution was let at large by a Writ of priviledge and adjudged that his inlargement was lawfull and that the Sheriffe was by this excused So on the other side a free-mans person by a private custome contrary to Magna Charta may for the good of the Common wealth be imprisoned and without question the Subject may as justly demand of the Law the freedome of his person from imprisonment as the King of his prerogative from violation or separation and yet no priviledge no not of the person it selfe of a common person ought to be preferred before the common good and by the same reason not any priviledge of the King for though the King be much greater and much to be preferred before many thousands of individuall or particular persons yet without question the universe or Common-wealth is to be preferred before the King or any interest or priviledge whatsoever of his so that for all these reasons I conceive that the prerogative of the King may as this case is be severed from him and therefore that the Parliament admitting that they have taken it from his Majesty have done no more then what is warrantable by the Law But now if all that I have as yet said will not sufficiently justifie the Parliament in their proceedings concerning the Militia I shall adde a third reason to prove that what they have done is lawfull and that is this what they declare to be Law bindes the King by an inclusive judgement then their judgemennt being the judgement of the King and their Votes and Declarations of the Law including the royall assent and declaration the King cannot afterwards by a subsequent Declaration countermand his own judgement tacitly included in theirs and by consequence the prerogative of the King suffers no violence for Volenti non fit injuria that is a man that consents to the doing of a thing is not injured by the thing being done Now that their Declarations of the Law includes the King and shall binde him I shall presently prove it First it is cleare that the Parliament consisting of the three estates viz. of the King Lords and Commons are a Court and it is as cleare that they are the greatest and highest Court in England in which Justice is administred by the King in those Worthies unto his people in the most high and transcendent way that can be for the King doth not appeare with that splendour and brightnesse of Justice and integritie neither is he so true and clearely represented to his people in those glorious rayes of his in any Court of Justice whatsoever as he is in his thrice great and honourable Court of Parliament Now that it is a Court and that the greatest Court in England in the 9. Rep. Epist. ibidem â—…p Epist 〈◊〉 my Lord Cooke saith that among other appellations it is called by the name Magnae Curiae c. of the great Court and in Pl. Com. fo 388. 〈…〉 fo 388. the Parliament is a Court of thrice great honour and justice c. and Bracton 34. a. 〈◊〉 fo 34. a. Rex habet c. Curiam suam viz. Comites Barones
c. the King hath his Court to wit Earles Barons c. and Fleta lib. 2. ca. 2. 〈◊〉 li. 2. ca. 2. Habet etiam Rex Curiam suam in Consilio suo in Parliamentis suis c. the King hath his Court in his Counsell in his Parliaments c. and Crompton in his Jurisdiction of Courts â—…p â—ur d' â—…s fo 1. 2. begins with the description of the high Court of Parliament giving it the precedency in act as well as in words where he saith that the said Court is L'treshaulte Court d' Engliterre that is the thrice high Court of England in which saith he the Prince himselfe sits in person c. And I shall conclude this with Dyer who saith Dyer fo â—… that this Court of Parliament is the highest Câ—uâ—t and hath more priviledges then any other Court of the Realme c. And all this is made cleare without further saying by this that no â—ppeale lyeth from this Court no reversall of their judgement but by the judgement of a subsequent Parliament Then this being admitted that the Parliament is the greatest Court in England I shall argue thus is the King by intendment of Law present in all his other inferiour Courts as in truth he is as 21. H. 7. and 2 3. Eliz. Dyer 21. H. 7. fâ— 2. 3. Dyer fo 1â—… and many other books are which certainly is the reason of the heavy judgement of these cases of killing of a Judge upon the Bench that that is Treason Or of drawing of a sword to strike a Justice sitting in judgement or of striking of a Juror in the presence of Justice that these incurre the heavy judgement of cutting off the right hand perpetuall imprisonment and the losse of lands and goods as the books are of 22. E. 3. and F. Judgement 174. 22. E. 3. â—… Fitz. Juâ—… 174. or of killing of a Messenger of the King that goeth to execute his commandment that this likewise is Treason as the book is in 22. Ass 22. Ass Pâ—… I say I conceive that the reason of these cases is for that he that offers violence to his Minister when he is doing the service of his great Master the King offers violence to the King himself whose person he represents and who by intendment of Law is there present giving judgement and he that strikes another in the presence of Justice doth it as in the presence of the King himself for that what the Judge or Minister of the King doth in pursuance of the lawfull commands of the King or in executing Justice is the act or judgement of the King himself according to that rule of Law Qui per alium facit per seipsum facere videtur the act of a mans minister or servant is the act of the Master himself And this Bracton himself saith Bract. fo â—… treating of jurisdiction delegated by the King to inferiour Judges and withall shewing and directing of those Judges Delegates to execute righteous judgement saith he Tale judicium diligit honor Regis cujus pâ—rsonam in judicio judicando representant Such a judgement the honour of the King delights in whose person in judgement they represent Why then I say is it thus that the King by intendment of Law is present in all his other Courts and that what they do or judge is the act or judgement of the King himself then certainly it must of necessity follow as indeed the Law is that their judgement cannot be counte manded by the King for this were to put Caesar against Caesar the King against himself which cannot be for that when a Judge hath once given his judgement he cannot afterwards countermand this judgement Again is the King as I have said by intendment of Law present in his inferiour Courts and is their judgement his judgement so that by this his Majestie is estopped and concluded by his own inclusive judgement to countermand theirs Then I say a fortiori the King though he disunite himself from his Parliament yet by intendment of Law and virtually he is present in his high Court of Parliament and therefore their judgement is his judgement and what they declare to be Law the King by an inclusive judgement declareth to be Law also And if so the conclusion must of necessity be that the King can no more countermand their judgement then he can the judgement of his Judges for when Transit in rem judicatam that is when a thing is once adjudged it can never after be repealed by the same judgement as I have said for that were a way to make judgement upon judgement and so ad insinitum insinitum in iure reprobatur the Law detests infinites And as the King himself cannot repeal this judgement pronounced by his Parliament so neither can he do it by any other advise or judgement power or jurisdiction whatsoever no not by the advise though of all the Judges of England for that there is no power or judgement whatsoever but is inferiour to the judgement of the high Court of Parliament which is plain by that that no appeal lieth from them and then the rule of Law binds up and supersedeth all inferiour judgements In presentia maioris cessat potestas minoris In the presence of the great the power of the lesse ceaseth And therefore according to this rule it is resolved in 21. Ass Ass Pl. 1. that because that the Kings Bench is Eier and more then Eier if a Commission of Eier sit in a County and the Kings Bench cometh thither the Eier ceaseth And this is the reason that when it was enacted by the Statute of 28 E. 1. 〈…〉 1. ca. 5. that the Kings Bench should follow the King that the power of the Steward of the Kings Houshold to determine Pleas of the Crown did cease and that in Terme time when the Kings Bench sits in the same County all Commissions cease as it is resolved in the 10. Rep. and in the 9. Rep. â—… Rep. fo 73. â—… Rep. fo b. And this is the reason likewise that when the Pope exercised jurisdiction here in England whatsoever the Ordinary of any Diocesse might do that the Pope who challenged to himself supreme jurisdiction over all Ordinaries used to do within this Realm as supreme Ordinary and so he used to make Visitations corrections dispensations and tolerations within every Diocesse of this Realm as the Ordinaries used so he used to make Appropriations without the Bishop and this was held good and was never contradicted by the Bishop who was accounted but the inferiour Ordinary Upon this ground as it is said by Manwood Justice in Pl. Com. â—… Com. fo â—… a. In presentia maioris cessat potestas minoris So I say in the case in question for that the high Court of Parliament are the most supreme jurisdiction in England what they declare to be Law cannot be countermanded by the judgement of any
to thinke that the Judges advice or judgement ought or can be received in this case for this were upon the matter to appeale à Caesare ad Caesarem and to reverse that Judgement though not by the same power yet by the same advise that gave it which as I conceive by the Law ought not to be But here peradventure it will be againe objected that no Writ of error can be brought in Parliament but that the King first signes to it 1. H. 7. 19 â—… and this is a consent by the King a giving of them power to proceed and declare what the Law is but in our case there is no such thing for here is nothing judicially before them by which to authorise them to give any such judgement and therefore they have no such power to declare what the Law is in this case and if they doe their proceeding is extrajudiciall and arbitrary To this I answer that true it is that they cannot nor ought not to take notice of any thing which concerneth any private persons or their interest neither can they in any such case give Judgement or declare what the Law is except they have something judicially pending before them upon which to ground their judgement but otherwise it is where it concerneth the Common-wealth for there I conceive under favour especially as in this case in time of imminent danger they are not tied to any legall way of proceeding but they may and are bound as well by their Oaths of Alleageance Supremacy and their late Protestation as by their Writ by which they are called to Parliament to take notice of all things which may be obnoxious and prejudicall to the Common-wealth and to debate determine and declare the Law concerning them though that they have nothing judicially before them for if they should in this case expect a complainant the Common-wealth might perish before that they could yeeld any ayde or assistance for the securing of it Now by their Oaths they are bound to defend the King and Kingdome as I have before said and by their Writ they have power and authoritie given them De imminentibus periculis tractare and tractare doth not onely signifie to handle treate of or debate but likewise it signifieth as the learned observe to order to governe to write of or to describe and without question these words have weight sence and power enough in them not onely to inable them to debate what the Law is but also to declare what it is after that it is debated so that I conceive by this it is cleare that the Parliament doe not exercise practise or endeavour any arbitrary way of proceeding And the difference as I concelve upon the whole matter will be this that the two Houses of Parliament cannot as I have shewed before make a new Law or alter the old Law without the consent of the King and this by Act of Parliament but they may declare what the Common Law is and this shall be obliging to his Majestie for otherwise this great Court which so farre transcends all others in other things should be lesse in power in this particular then any other Which ought not to be conceived or imagined Now this being Law which I have delivered as I conceive it is from hence these Conclusions may necessarily and by consequence be deduced First that the declaration of the Law to be otherwise by the Proclamation or other Declaration of the King doth not change the Law for that it is a Rule in the Law that the King can neither create a Law nor alter the Law by his Patent or Proclamation And with this agreeth 49. Ass 37. H. 8. Br. Patents 100. 11. H. 4. 10. H. 7. 5. Rep. 49. Ass Pl. 8. 37. H. 8. Br. Pat. 100. 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo 55. and many other Books Secondly Hence a good argument may be deduced to prove the Commission of Array at this time illegall for that the King with the advice of his great Counsell the Parliament hath by a tacite and inclusive consent as I have made it good before established the Militia why then clearely it lieth not in his Majesties power without their consent to countermand this by any other Commission for the Rule of Law is that Eodem modo quo quid constetuitur dissolvitur that is every thing ought to be dissolved by a matter of as high nature as it was created and that is the reason that an Act of Parliament cannot be repealed but by an Act of Parliament for that no power or jurisdiction whatsoever is so great as it selfe and it is without question that the Kings power or authoritie by it selfe is not of so high and excellent a nature as it is joyned with his Parliament Wherefore I doe conceive for this reason that the Commission of Array is absolutely unlawfull and therefore ought not to be submitted unto Thirdly and lastly Hence may be concluded that the Kings declaration of the Law to be contrary to what the Parliament have declared the Law to be is Coram non Judice that is by one that hath not jurisdiction of the cause First Because as I have said that the King himselfe cannot declare the Law to be contrary to their judgement for that his Majesties judgement is superseded and bound up in theirs and secondly For that he cannot contradict their judgement by any other advice or judgement for that that advice or judgement is inferiour to the Court of Parliament and therefore in their presence as to this purpose ought to cease And I shall compare this case to one case onely which is in the 10. Rep. in the case of the Marshallsea 10. Rep. fo 7â—… the case of Marshallsea where the case is thus The Sheriffe who is prescribed by the Law to hold his Tourne within the Moneth after Mich. c. held his Tourne after the Moneth and tooke an indictment of Robbery at the same Tourne and the Indictment being removed by a Cerciorari into the Kings Bench by the advice of all the Justices the partie so indicted was discharged for that the Indictment was utterly voyde and Coram non Judice because at this time the Sheriffe had no authoritie to hold his Court so I say in this case the Declaration or Proclamation of the King is Coram non Judice for that though the King properly and onely ought to declare the Law by the advice of his Judges at another time yet at this time he cannot for that their judgement is estopped and superseded by the superintendency of the high Court of Parliament Then the Law being thus this justifieth the proceedings of Parliament in punishing of such who dare adventure against Law to execute the Commission of Array or to proclaime or declare any thing in his Majesties name against his owne judgement and the judgement of his Parliament for the Rule of Law is Extra territorium jus dicenti non
is bound to protect his Subject and therefore in 20. H. 7. it is holden that there is a Liege or Leigeance betweene the King and the Subject 20. H. 7. 8. and Fortescue cap. 13. saith Rex ad tutelam legis corporum bonorum erectus est that is he is erected King to defend the Law the bodies and goods of his Subjects and in the Acts of Parliament of 10. R. 2. 11. R. 2. and 14. H. 8. c. Subjects are called Leige people 10. R. 2. ca. â—… 11. R. 2. ca. â—… 14. H. 8. ca. â—… And in the Acts of Parliament of 34. H. 8. and 35. H. 8. c. the King is called the Liege Lord of his Subjects 34. H. 8. ca. â—… 35. H. 8. ca. â—… and with this agreeth Master Skene in his Booke de expositione verborum that Leigeance is the mutuall bond obligation betwixt the King and his Subjects by which Subjects are called his leige Subjects for that they are bound to obey and serve him and he is called their Leige Lord for that he ought to maintaine and defend them Wherefore it is truely said that Protectio trahit subjectionem subjectio protectionem Protection draweth subjection and subjection protection By all which it is manifest as also by the Oath of the King taken at his Coronation lately published by the Parliament that the King is bound to protect the lives liberties of his Subjects so long as the Subject is obedient to the King for protection and leigeance are relatives and have a necessary and reciprocall dependance the one upon the other and this is the reason that we say that a man outlawed is out of the protection of the King so that heretofore a man outlawed was said to have Caput Lupinum that is a Wolfes head so that any man might then have killed him as Fleta saith Fleta lib. â—… cap. 27. and other old Books because that by his disobedience to the King he had deprived himselfe of the benefit of the regall and legall protection I doe not say that if the King withdraw his regall protection from his Subjects that his Subjects may withhold their obedience from their Soveraigne yet I am certaine that the Books before cited imply as much Besides reason will arme every man thus farre as to conclude that the cause and ground of his obedience is his Soveraignes protection and therefore if his Soveraigne withdraw the one he may deny the other Againe denying to protect his Subjects is a plaine refusall to be ruled by Law and this as Bracton saith makes him a Tyrant no King and my obedience is due to him as a King not as a Tyrant But I passe this over as a matter of so great consequence at this time considering the bad principles of many men that I had rather offend in withholding of my judgement then in publishing of it But yet more fully that the King is bound to protect his Subjects F. N. B. is expresse F. N. B. fo 232. Nota saith the Booke that the King is bound of right by the Lawes to defend his Subjects and their goods and chattels lands and tenements and therefore by the Law every lawfull Subject is taken to be within the protection of the King and if he be put out of protection for his offence then every man may doe with him as with an enemy of the King Here note that the Subject cannot loose his protection due to him by his Soveraigne but by his owne default And in F. N. B. fol. 113. a. it is there said â— N. B. fo â—13 a. that the King ought of right to save and defend his Realme as well against the Sea as against enemies that it be not surrounded or wasted and to provide remedy for it and also to provide that his Subjects have their passage throughout the Realme by all high wayes in safeguard And this is warranted by the Commission of Sewers which is directed by the King to Commissioners to inquire of c. and to heare and determine all faults and breaches of Walls Ditches c. Sea-bankes c. in the beginning of which Commission the fractions of the Walls or Sea-bankes is cited and in the body of it the King saith Nos pro eo quod ratione dignitatis nostrae regiae ad providendum salvationi regni nostri circumquaque sumus astrcti volentes in haâ— parte congruum festinum remedium adhiberi assignavimus vos 〈◊〉 Here the King himselfe saith expressely in this Commission that he is every way bound by reason of his royall function and Kingly â—ffice Providere salvationi regni sui that is to provide safety for his Kingdome And is the Law thus that the King is bound to protect and defend his Subjects Permare per terras By the Sea from all Pyrates and Robbers as also from the invasions of forraigne enemies and by the Land from any domesticke dangers either by inbred rebellions or civill Commotions Why then the Conclusion that I raise upon these premisses is but this That it is consonant and agreeable to all reason that the King executing of the trust reposed in him should not be denied the means by which he may respond that great confidence placed in him by his owne care and fidelitie and God forbid that we should requirâ— the due execution of this great function of his Majesties part and yet that we should withdraw from him the meanes by which he should perforâ—e it for if so to be a King would be sarre worse then an Aegyptian servitude Wherefore I conceive that it stands with all the justice and equity in the world that the King who hath so great a charge upon him that greater cannot be by which he as Vicarius Dei that is Gods Vicar as Bracton speaketh is obliged to defend the persons and property of his Subjects should have all the Castles Forts and strong holds and all the Ports and Havens at his rule and disposition and that generally he should have the ordering of the Militia throughout the Realm so that by this means he may be inabled to discharge that great trust that is committed to him without which he cannot be and at the last to render a just account to God of his Stewardship And this certainly Bracton li. 2. de acquirendo rerum dominio intends when he saith Bract. l. 2. c. 2 that the King Habet ea quae sunt pacis ut populus sibi traditus in pace sileat quiescat c. that is he hath those things which belong to peace that he may govern his people committed to his charge in peace and quietnesse For as the King hath ordinariam jurisdictionem that is ordinary jurisdiction as Bracton saith before and this to govern his Subjects according to Law and right so Habet ea quae pacis sunt that is not onely the Law to maintain peace among his Subjects but also Ea quae belli
sunt all those things which conduce to the protecting and defending of his Subjects from any forrein invasion or domesticke danger or otherwise he could not possibly maintain peace according to the saying of Bracton and as by his Oath he is bound The King by the Law hath this Prerogative allowed unto him that he onely may proclaime warre and he onely can establish peace among his people as the 7. Rep. is 7. Rep. fo 25. why then I argue thus It is a greater prerogative to have power to proclaim warre then it is to have the onely means to maintain it and therefore it is not to be conceived that the Law that would allow the King the greater power would deny him the lesse For Qui majora concedit minora non denegabit He that granteth the greater will not deny the lesse Again to allow the King power to proclaime warre and to deny him the means to maintain warre were absurd and the Law will not admit of any absurditie Wherefore I conceive for these reasons also that the King by the Law hath likewise this prerogative of the sole ordering and disposing of the Militia of the Kingdom Now to conclude this point I shall paralell this case to one case onely in the Law and that is to Mittons case in the 4. Rep. where the case is thus 4. Rep. fo 3â—… Mittons casâ— Queen Elizabeth by her Letters Patents under the great Seal granted the Office of the Clerk of the County Court of the County of Somerset to Mitton with all Fees c. for terme of his life and after the Queen constituted Arthur Hopton Esquire Sheriffe of the same County who interrupted Mitton claiming this Office as incident to his Office of Sheriffe and upon this he appointed a Clerk himself of the County Court and here the sole question was whether this grant by the Queen were good or not And it was adjudged upon solemne debate that it was not and the principall reason given wherefore the grant was nought was because that great inconveniences might follow to Sheriffes who are great and ancient Officers and Ministers of Justice if such grants should be of validity for that there is great trust reposed in them for which they are responsible as it is there said whereupon it is concluded that Law and reason requires that Sheriffes who are publick Officers and Ministers of justice and who have an office of so great eminencie confidence perill and charge that they ought to have all rights appertaining to their office And in this case there is cited another case to this purpose Mich. 39. 40. of the Queen resolved by all the Judges of England as my Lord Coke saith that the grants of the custodies of Goales of the Counties either by King H. 8. or afterwards were utterly void and the like reason is given in this case as in Mittons case for that custodies of Goales belong to the office of Sheriffe who being immediate Officer to the Courts of the King must answer for escapes and shall be subject to amerciaments if he hath not the body in Court upon processe to him directed c. and therefore it is reason that he should put in such keepers of the said Goals for whom he should answer according to the purvieu of the Act of 14. E. 3. â—4 E. 3. c. 10. For otherwise against the rule of reason and equitie Alius offendet alius plectitur that is one man should offend another should be punished Now if the Law be thus in these cases that you shall not take away these offices from the Sheriffe who is an Officer of trust and onely chargeable for any misdemeanor in the executing of the same for that by this means you should disable him to execute his Office according to the confidence reposed in him and yet should punish him for the not doing of his duty which should be against all reason à fortiori I say in this case you shall not deny the King who hath the greatest Office of trust and charge that can be the means and way to perform this trust and to undergo this charge which cannot be otherwise done then by allowing of the King this prerogative so long as he doth perform the trust that runs along with it of having the sole disposing and ordering of the Militia of his Kingdom And without question Bracton when he saith that the King hath Gladium materiale that is the materiall sword can intend nothing else by this but Gladium belli which is the Militia and gladium by a Synecdoche may well comprehend and be set pro omnibus rebus milititaribus that is for all things military And it is usuall in holy Writ when God threatens the heavy judgement of warre upon any Nation to do it under the notion and expression of a sword by this intending Bellum that is warre with all its sad effects Wherefore I conclude this point that the King hath this prerogative allowed unto him by the Law for these preceding reasons 1. For that it were inconvenient for the King who by the Law is bound to protect and defend his subjects if he should not have this power 2. For that the Law hath given unto him a greater prerogatiue and therefore will not deny him the lesse and thirdly and lastly for that it would be absurd that the King should have power to proclaime warre but not to maintain it Second part For the second question which is as I conceive much more difficult then the former and which is the great doubt and dilemma of the time which is but thus whether the two Houses of Parliament the Kingdom being in imminent danger and the King refusing to put it into a posture of defence may by their Ordinance without the consent of the King settle the Militia and put the Kingdom into a posture of defence or not And I do conceive under favour in some clearnesse that they may and that in so doing they have done no more then what is warrantable by the Law And this I ground in the first place upon the imminent danger and extreame necessity that the kingdom is in and therefore though it should be admitted that they could not do it at another time yet I conceive that by reason of the necessity it is warranted by the Law for them to do it at this time It is a rule in our Law first cited in Bracton Bract. fo 247 a. and remembred in the 10. Rep. 10. Rep. fo 61. a. that illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur In time of necessitie illegall acts are made legall and things utterly against Law justifiable Upon this rule I might multiply cases but because I do not affect via trita obambulare to go in the common road therefore I shall onely put some of the most materiall cases which I find to this purpose
and the others I shall omit In Pl. Com. it is said Pl. Com. fo 13. b. that when Laws or Statutes are made yet there are some things which are excepted and forseprised out of the provision of them by the Law of reason though that they are not expressed by words As breaking of a prison is Felony in a prisoner himself by the Statute De frangentibus prisonam yet if the prison be burnt and they which are in break the prison for salvation of their lives this shall be excused by the Law of reason and yet the words of the Statute are against it And 14. H. 7. Jurors who were sworn upon the issue 14. H. 7. fo 29 and by the Law ought not to depart untill they are agreed of their Verdict for fear of a great tempest departed and severed themselves and it was there held that they should not be amerced and that their verdict afterwards was good And this was thus holden saith the book for the necessity of the chance but otherwise they should have been grievously punished So by the Law for the salvation of my own life I may kill another And as the Law makes that lawfull in case of necessity which otherwise would not be lawfull when it concerns any mans private so à fortiori when it concerneth the Common-weal and therefore as the book is in 29. H. 8. Dyer 29. H. 8 Dyer fo 36. b. 8. E â—4 23. Br Custome 45. a man may justifie the making of Bulwarks in another mans soyl without licence and the razing of a house which burns for safeguard of the houses of the neighbours So it is if the Sheriffe pursue a Felon to a house and for to have the Felon he breaketh the doore of the house this is justifiable So in 13. H. 8. 13. H. 8. 16. â— E. 4. 35 b. the inhabitants of a Citie in time of warre if they conceive that the Suburbs may endanger the taking thereof may lawfully burn or destroy the suburbs for the Towns or Cities preservation and the common safetie And in these cases necessity and the good of the republick maketh that lawfull which otherwise would not be lawfull It is a certain rule that all Laws ought to receive an equitable and favourable construction according as opportunitie and the necessity of the case administers occasion for Summum jus est summa injuria that is over-strict observance of the Law may sometimes be unlawfull And à fortiori they shall receive such a construction where it concerns the Common-wealth and accordingly the Judges in all ages as they ought so they have alwayes made such interpretation and declaration of the Laws that the Common-wealth should not be prejudiced And this is the reason of these cases which have been often adjudged that if a man bind himself that he will not exercise his trade or that he will not manure his land or that he will not marry that the Obligation in these cases is void for that it is against the weal publike And this is the reason also that hath made the Judges alwayes to adjudge all the Grants of the King of Monopolies or Impositions upon the Subject without Act of Parliament to be against the Law for that they were against the good of the Common-wealth and libertie of the Subject â—… H. 3. ca. 29. And this is grounded upon Magna Charta which saith Quod nullus libor homo c. that no free-man shall be taken and imprisoned or be disseised of his Free-hold or liberties but by lawfull judgement of his Peers or by the Law of the land And if the Law be such that the King by such grants which are against Law and the weal publick cannot take away my free-hold or livelihood from me but that such grants shall rather be adjudged to be void against the opinion of Bracton who saith Bract. fo 34. â—… b. 2. De chartis Regiis factis regum non debent nec possunt justiciarii nec privatae personae disturbare that is of the Kings Charters and his deeds neither Justices nor private persons may or ought to dispute which clearly is against the known and established Law at this day why then certainly it will follow that if the King either by action or omission go about to endanger the weal publick and endeavour the destruction of it which ex consequenti must of necessity bring ruine to every individuall person of it that in such case those who are intrusted with the common good as the Parliament at this time is may by all meanes possible indeavour the preservation of it but I doe not here intend by violent opposing or deposing of his sacred Majestie of which I shall speake a word afterwards but by setling of the Kingdome into such a state and condition as our sage Parliament hath now done that it may be able to defend his sacred Person and it selfe against any forraigne or domesticke surprise or invasion It is a true Rule that Interest Reipublicae ne sua re quis malè utabur a man contrary to the opinion of the vulgar may not doe with his propertie as he pleaseth for that the Common-wealth hath an interest peramount the propertie of any private man and there is no Subject but that either more or lesse according to his Talent or place that God hath put him in either in Church or State is intrusted with the common good and therefore if he doth contrary to his trust use his Talent or place against that end for which it was given unto him he is punishable by the Law for it And therefore if a man will destroy his woods cast his money into the Sea burne his Corn upon the Land or in his Barnes or the like cleerely by the Law he is punishable for it and agreeing with this Trin. 4º Jac. many were indicted of a Riot in the Starre-chamber for putting in of their Beasts into Corne claiming their Common there and in this case the Lord Chancellor said that though they had good title to the Common yet that they should be here punished for that they had destroyed the Corne which is against the weale publique And without question the rigour of all Lawes ought to receive such qualification and equitable construction that the Common-wealth doe not suffer or be indamaged The Law was made to support the common good and therefore that Law is against Law that is against the common good Nemo sibi nascitur no man was borne for himselfe all men both Rulers and people were borne to this end to contribute and conferre some good to the Republique and therefore Qui sibi solum vivit he that lives to himselfe onely doth not live to that end for which he was created much lesse he which makes construction of the Law against that end for that were to destroy both Law and government which every man was borne to defend It is a Rule in the Law that Judges ought
alwayes to make such construction of the Deeds of men and of their Grants Vt res magis valeat quà m pereat that is that they should rather take effect then perish so I say it may well be taken for a Rule that the Judges should not so construe the Law that the Law should destroy it selfe which will necessarily follow in the destruction of the Common-wealth but that they should so interpret it Vâ— respublica magis valeat floreat quà m pâ—reat destruatur that the Common-wealth should rather flourish then perish and be destroyed I agree that in the case in question by the strict Rule and Law of Prerogative the governing and disposing of the Militia of the Kingdome is onely in the King and that he onely may proclaime warre and he alone establish peace amongst his people yet we ought not so tâ— construe this Law that it is so in the King that it cannot be severed from him and that no other can intermeddle with it without the consent of the King though that it be for the Weale publique and for the securing of the Kingdome being in imminent danger the King refusing to settle it as in right he ought upon the prayer of his people represented in the defires of the Parliament For to make such a construction were utterly to confound and destroy both Law Common wealth as I have said before and therefore ought not to be admitted The King hath this Prerogative allowed him by the Law that he shall not be bound by any Statute except that he be expressely named in the Statute yet it is resolved in the 5. Rep. â— Rep. fo 14. b. that all Statutes which are made to suppresse wrong to take away fraud or to prevent the decay of Religion shall binde the King though he be not named in them for saith the Booke Religion Justice and Truth are the sure Supporters of the Crownes and Diadems of Kings So I say in this case the King by his Prerogative as I have said before ought to have the sole disposing of the Militia But if in imminent danger he refuse to settle this for the safetie of himselfe and his Kingdome according to the trust reposed in him his Prerogative ought then to give way for the securing of his Crowne that those who are intrusted with the Weale publique as the Parliament is may settle this for the defence of the King and Kingdome according as in truth they are bound as I shall afterwards shew It is a Rule in our Law That the King can doe no wrong and with this accords Bracton â—â—acton fo 107. Nihil aliud potest Rex in terris cum sit Dei minister vicarius nisi id solum quod de jure potest nec quod principi placet legis habet vigorem the King can doe nothing upon earth seeing that he is Gods minister and Vicar but that onely which of right he ought to doe neither ought the Kings will to have the force and vigour of a Law Here note that the will of the King ought to subscribe to the Law and not the Law to the will of the King And in Pl. Com. 1. Rep. 5. Rep. it is said â—â— Com. fo 246. â— Rep. fo 44. b. â— Rep. fo 55. b. That the King cannot doe a wrong neither will his Prerogative be any warrant to him to doe injurie to another and if the King cannot injure one single person without question he cannot injure all the Common-wealth which he should doe in this case if both the Houses of Parliament in this time of imminent danger the King refusing to joyn with them should not have this power of setling the Militia in defence of the Kingdome without his consent I agree with Bracton Bracton fo 5â—… that the King Parem non habet in regno nec superiorem He hath no equall nor superiour in his Kingdome but that is to be understood that there is no man above or equall with his Majestie for he saith afterwards Bracton fo 3â—… Rex non debet esse sub homine sed sub Deo sub lege that the King ought not to be under man but under God and under the Law and after fo 34. a he saith Rex habet superiorem Deum scilicet item legem per quam factus est Rex item Curiam suam viz. Comites Barones c. the King hath a superiour to wit God in like manner the Law which made him King and also his Court to wit the Earles Barons c. which cannot be understood of any other then the high Court of Parliament And in the places before cited he saith Quod non est Rex ubi dominatur voluntas non Lex He is not King when his will rules not the Law Then if it be thus as Bracton saith that the Law and the two Houses of Parliament are above the King and that the King is as no King when he doth not submit to the Law which will of necessitie follow for that the same Law which made him King injoynes and obliges him also to defend his people committed to his charge and without doubt the one as just as the other and if he refuse to protect his people which is a dispising and a depressing of that Law which gave him this Soveraigntie certainly the Law will not defend him in this his tyranny I conceive that in this case the Law will in its own defence and in default of the King who ought to have maintained the Law inable the two Houses of Parliament to put the Kingdome into a posture of warre in defence of the King his Lawes and Subjects But now the great Question is What and where is the ground of our feares and jealousies and where is the imminent danger for many say that they cannot see it and then it not being visible and obvious to every eye a Question as great in shew as the former arises upon this Who is or may be the proper Judge of this imminent danger To the first I answer that our feare and the imminent danger pretended is no Phantasme or Chimerâ as some would have it but it is a reall and visible cause of feare Et talis metus qui cadere potest in virum constantem such a feare as may befall a constant man as my Lord Cooke describeth a feare Instit fo 253. that may possesse a generous and settled spirit And that it is thus I appeale to the conscience of any wise indifferent man whether that the Commune incendium the common fire or calamitie in our neighbour Nation of Ireland clothed with these three circumstances as I shall set it forth will not cause and justly too a wise man to feare and doubt what the event will be As first that they are our Neighbours and when my Neighbours house is on fire will any man adjudge this to be a phantasme or an effeminate feare in me to
without reason for as it is well knowne they have published the justice and integritie of their cause to the whole world and have left their proceedings to the judgement and determination of every private conscience so that cleerely this objection holds not Then if the judgement of Parliament be our judgement what else doe they then oppose their own judgement who dare oppose the judgement of Parliament which is folly and what else doe they but preferre their proper and private judgement before the judgement of the whole Parliament which is an extreame insolency for that they represent the whole Kingdome and are the most worthy part of it and for that we have as I have said before bound our selves by our owne consent and election to stand to their judgement and determination Wherefore for all these preceding reasons I conclude this point that admitting the imminent danger were not perspicuous and manifest to every eye that the Parliament as they are the most proper Judges so they ought to be the onely Judges of it and no other person whatsoever Now for the Objection that many of the Lords and Commons did never consent to the Ordinance of Parliament for that they were with his Majestie and that therefore this should make their determination invalid and ineffectuall This is a more strange objection then the other for that it is against the rule of Law that any man should take advantage of his owne wrong and it is cleare that after the Parliament is once begunne their personall attendance is so necessary and of such importance to the Parliament that they ought not by the Law for any businesse whatsoever to be absent and so is Dyer Dyer fo 6â—… And by the Stat. of 6. H. 8. it is enacted 6. H. 8. ca. â—… that no Knight Citizen or Burges absent himselfe without licence of the Speaker and Commons under the paine of the losse of their wages And in 3. E. 2. Fitz Corone 61. cited in Crompton Jur. 3. E. 2. Fitâ—… Corone 6â—… Crompt Iuâ—… Courts fo â—… the Bishop of Winton was arraigned in the Kings Bench for that he came to the Parliament and departed without licence Why then is it so that their withdrawing of themselves is a crime in them Shall they then take advantage of this offence and neglect of theirs of the Weale publique for the good of which they were called and assembled together to avise certainly not Besides if this objection might hold who is it that doth not see what the inconvenience might be Et argumentum ab inconvenienti est bonum in lege an argument drawne from inconvenience is good in Law For by this invention the conclusions and determinations of those who are present intending the Weale publique as in dutie they are bound should be all frustrated and annihilated by the absence of those who voluntarily and against Law withdraw themselves which would be destructive to all Parliaments For posito that all the Lords or all the Commons should voluntarily and out of an indisposednesse to the common good withdraw themselves and utterly refuse to performe that trust which is reposed in them of counselling and consenting to such Lawes which might establish peace and a settled condition in Church and State will any man thinke that if in this time of dissertion of the Lords or Commons there be an apparent imminent danger threatning ruine to the Common-wealth if it be not in an opportune and seasonable time prevented that in this case it lies not in the power of the King and Lords or of the King Commons onely as the case is by way of Ordinance to settle the Kingdom in such a state and temper as may prevent any approaching misery Without question it doth or otherwise this conclusion as I have said before would be destructive to all Parliaments I agree that an Act of Parliament cannot be made by which a new Law should be enacted that should be obligatory to the Subject for ever I meane untill it were repealed by another Act but by the consent of the King Lords and Commons and with this accords the Books 4. H. 7 â— H. 7. 18. there an Act was made by the King and Lords but nothing was spoken of the Commons and by all the Judges this is no act of Parliament 7 H. 7. â— H. 7 14. No Statute except that the Lords and Commons assent to it And 11. H. 7. â—… H. 7. 27. it is no act of Parliament except it be made by the King Lords and Commons By this it is manifest that all the three Estates ought to joyne in the making of an act of Parliament and this is so cleare that I need not cite any other authoritie in proofe of it for ouâ— Books are plentifull in this point Onely I shall remember one remarkable case which I finde in our Law to prove that the Books which say That an Act of Parliament cannot be made without the consent of the Lords that this ought to be intended of the Lords Temporall onely and not of the Lords Spirituall and therefore it is resolved by the Judges in 7. H. 8. Keilway â— H. 8. Keilâ—â—y fo 184. b. that the King may well hold his Parliament by him his Temporall Lords Commons without the Spirituall Lords so that by this it was manifest that they were not essentially necessary to a Parliament for that the King might have holden a Parliament without them and therefore it is not now so much to be wondred at that they are totally excluded by Act of Parliament But now on the other side I conceive as clearely under favour that if the King do utterly forsake them and decline their advice and counsell to which he ought to adhere during Parliament that in such case they may as I have said before make such Ordinances without him for the securing of the Kingdome in case of exigency and extremitie as shall be obligatory to all the Realme pending Parliament for otherwise they should have the name of a Parliament onely not the power and vertue of it But now it may be objected that the King by his Prerogative may call a Parliament when he pleaseth and also adjourne and dissolve it when he pleaseth and that the power given by the Writ of Summons of the Lords to Parliament is onely ad tractandum consulendum c. and therefore it will be concluded that by the same power the King may command his Counsellors whither he pleaseth To this I answer and agree that the King may call or dissolve a Parliament when he pleaseth and so totally toll their power but yet under favour pending Parliament unadjourned the King can neither retarde their proceedings nor take away their persons and that I shall prove thus the King as fons Justitiae the fountaine of Justice from whom all Judiciary power is derived may likewise make whom he pleaseth to be a Judge to dispence the
way to the weal publique and not the weal publique to the Prerogative of the King For if the Prerogative of the King ought not to be advanced to the prejudice and wrong of the interest of any private man as I have shewed before much lesse to the wrong and injurie of the re-publique And with this difference ought Bracton to be understood who saith Bract. fo 55. b. that Ea quae jurisdictionis sunt pacis ea quae sunt justitiae paci annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam nec à Corona seperari poterunt cum faciunt ipsam Coronam Those things that belong to jurisdiction and peace or are annexed to them appertain to none but the Crown and Royall Dignity neither can they be severed from it for that they make the Crown it self Now as I have shewed before these words of Bracton Ea quae pacis sunt c. those things that belong to peace must necessarily intend Ea quae belâ—â— sunt those things that belong to warre also for that it is impossible for the King Absquerebus Militaribus that is without the Militia to defend his people in peace and safety And for that that he saith that this cannot be severed from the Crown this ought to be understood by his own act onely and not that it cannot be severed from him though in his own default by his Parliament For to make such a construction were to make a Law destructive to that for which it was principally and in the first place made to preserve and that is the Common-wealth And the like construction and explanation of his words Bracton maketh afterwards for he saith Ad personas vel tenâ—meÌ„ta transferri non poterunt nec à privata persona possidâ—ri they cannot be transferred to persons or Tenements nor be possessed of a private person which cannot be otherwise intended then of the grant of the King for transferre that is to transferre is no other then concedere that is to grant And I agree with Bracton in this that the King cannot grant over this prerogative but this position doth no way conclude against the power of the Parliament as our case is But here Mittons case in the fourth Rep. 4. Rep. Mittons case cited before to another purpose may be objected against me where it is resolved that the Queene could not take away the grant of the Office of the Clerke of the Countie Court from the Sheriffe in which case there is another case also cited to be adjudged by all the Judges of England viz. that the grants of the custodies of Goals of the Counties by the King are voyde and the reason that is given for both these Cases is that the Sheriffe having these Offices appendent to his Office as in truth they are is by the Law responsible for all misdemeanours done in those Offices and therefore it is against all reason that the grant of them should be taken from him but that he should have power to put in such into those Offices for whom he should answer Now the force of the objection stands thus if these Offices cannot be severed from the Sheriffe because that by this he should be disabled to performe the trust reposed in him and yet should be responsible for all misdemeanours done in those offices which would be very unreasonable à fortiori you shall not take away this priviledge from the King for by this he should be disabled either to protect and defend his people as by Law he is bound or faithfully to discharge this great trust reposed in him as God requireth To which I answer that there is a great and wide difference betwixt the cases for first in the case of the Sheriffe the depriving him of the grant of these Offices concernes onely his private interest not the Common-weale I meane the Common-weale stands not in competition with the Sheriffes right as in our case and therefore in this the difference is great But which makes the cases much more to differ in the case of the Sheriffe there was no act or default in him for which to deprive him of this benefit and it is a rule in our Law that Quod nostrum est sine facto sive defectu nostro amitti seu ad alium transferri non potest a man shall never be devested of his propertie without his owne act or default But otherwise it is here in the case of the King for if there be no act yet I am certaine that there is a defect or default in the King in refusing in this time of imminent danger to put the Kingdome according to the advice of his great Counsell in a posture of defence And it is no new thing for a man to loose his interest in his own default Upon this I might multiplie cases but I will put onely one or two familiar and ordinary cases in our Books If I make an estate for life or yeares to another without condition expressed yet the Lessee hath not the estate so absolute in him but that by a tacite condition in Law running with every such particular estate he may by his own default loose his estate and therefore if he commit wast he subjects his estate to be evicted by the Lessor or if he assumeth to himselfe to grant a greater estate to another then he himself hath by this he forfeiteth his estate But you will peradventure say that this case doth not agree with the case in question for that the King hath an estate of inheritance in his Crowne which goeth in succession to his posteritie as well as the private interest of any Subject This I agree but under favour he hath this committed to him in trust this tacite condition runneth along with it that he use his regall power and authoritie for the good of the publique or if he doth not that then his great Counsell for breach of this trust and non-performance of this tacite condition though that they cannot meddle with his sacred person by dethroning of him or devesting of him of the regall Scepter may provide for the securing of him and his Kingdome Againe it is cleare by the Law that misuser or non-user of any Franchises Priviledges or Offices is a forfeiture of them but especially of any publique Offices which concerne the administration of Justice or the Common-wealth and with this agreeth 5. E. 4. 8. H. 4. 20. E. 4. and my Lord Cooke in his Comment upon Littleton 5. E. 4. 5. 8. H. 4. 18. 20. E. 4. 6. Instit 233. a. and many other Books Now it is as cleare that to be a King is an Office though it be the greatest Office that any one under God can have and what Office so much concerneth the administration of Justice and the good of the Common-wealth as this doth and therefore though this great office be no more forfeitable then it is grantable by the King for I conceive that