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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	great_a	justice_n	king_n	1,506	5	3.4849	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A89520	An argument or, debate in law: of the great question 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.M. C.L.	Marsh, John, 1612-1657.; Milton, John, 1608-1674, attributed name.	1642 (1642)	Wing M575; Thomason E119_13; ESTC R18112	46,929	48

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. ● 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 i● 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 10●… 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 10●… 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

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 l●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 ●● 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 ● Rep. Calvins ●●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

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. ●… 11. R. 2. ca. ●… 14. H. 8. ca. ●… 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. ●… 35. H. 8. ca. ●… 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. ●… 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 ● N. B. fo ●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 ha● 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 ●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 requir● 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 perfor●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

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 ●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. ● 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 ●… 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. ●… 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

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 ●…p ●ur d' ●…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 ●… that this Court of Parliament is the highest C●u●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 ●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. f● 2. 3. Dyer fo 1●… 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. ●… Fitz. Ju●… 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 P●… 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 ●… 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 p●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. ●… Rep. fo 73. ●… 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. ●… Com. fo ●… 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