being indefinitely spoken Wee conceive must be understood of all Kings times as well before as after 13. E. 1. the usage therein meant is but Consuetudo Angliae the Common Law and the Parliament could not in all probability in the mention of so ancient an usage intend so late a Statute as this of 13. E. 1. which was but new in the particularity of the Assize though antient in the Rule of charging according to the quantities of every mans Lands Goods the former Assizes having been also different Nor considering that of Necessity the severall kindes and proportions of Armes ever did and must vary with the times could they intend that there ever was for the times past or could be for time to come any such constant rule of any such particular assize concerning Armes whereunto they could refer as constantly used for the times past or that might constantly endure for time to come neither ever was or can there be any other constant rule then that generall rule of the Common Law which can never faile for the assessing Armes from time to rime for the kindes according to the present use and for proportions according to mens abilities And it were very strange that the Parliament of 1. E. 3 could conceive That for the defence extraordinary the particular kindes of Arms in 13. E. 1. especially such petty provisions could be proper and sufficient at this time in 1. E. 3. and would so continue afterwards And now that We have cleared this first part of the Statute of 1. E. 3. as concerning the Arming a mans selfe that it is not thereby intended That the Subject should not be charged with Armes otherwise then according to the Statute of 13. E. 1. We shall deliver what Our selves conceive of the meaning thereof And it is thus Towards the end of the Reigne of E. 2. severall Commissions of Array issued into severall Counties in execution whereof the Commissioners had much grieved and oppressed the Subjects Insomuch that upon complaint speciall Commissions of Oyer and Terminer usuall in those times were sent forth for the enquiry after those grievances and oppressions And although it doe not appeare what those were yet since the Complaint was not against the Commissions themselves as illegall Wee cannot conceive otherwise but that it was against the wilfull excesse of the Commissioners in their surcharging the Subjects with Armes beyond their abilities of estate to beare as charging a man as a Horse-man where it had beene sufficient for for his estate to have borne Armes as a Foot man and the like contrary to the Tenor of the Commission But this course producing indeed little effect in the time of King E. 2. partly out of the favour which it is likely the Commissioners did finde and partly by reason of the short remainder of His Reign there was just occasion both for Complaint and Reliefe in this next Parliament of 1. E. 3. And though the Particulars of the Petition in 1. E. 3. and the Answer out of which according to the manner of those times the Printed Act was made doe not appeare for the want of the Roll of that Parliament yet Wee may well judge thereof upon this occasion happening within the compasse of about one yeare before and thereupon conclude as for the true meaning of that Act That the provision intended to be made was onely against the excesse of the Commissioners which rather justifies then any way disproves the Lawfulnesse of such Commission And so the sence of the Act applyable to the Complaint will be That whereas the Commissioners had over-highly taxed the Subjects the Act provided That they should not be otherwise charged then as they had been in the times of former Kings and according to Our Commission moderately and so as they might live still according to their former condition as in like case of other Statutes against outragious Distresses and Amerciaments And although Wee take this to be the sence of that Statute yet if any man shall thinke this part of the Statute of 1. E. 3. Concerning arming a mans selfe to be the same with the words of the Statute of 25. E. 3. against constraining any man to finde men of Armes c. which is the sence of this Declaration which makes both Statutes to be to the same effect and makes the inference against Our power of imposing Armes upon them both We shall not contradict him therein being confident to make it evident that this Commission is no way contrary to the words or meaning of that Statute of 25. E. 3. But before Wee come to that Statute Wee shall make one Observation upon those Statutes of 13. E. 1. 1. E. 3. both together and thereupon shew that in the judgement of the whole Parliament of 4. H. 4. whose authority is chiefly insisted upon in this Declaration Our Commission is no way opposed by either of those Statutes And it is this It appeareth That the late issuing of the Commissioners complained of in 4. H. 4. which the Declaration supposeth were of the same nature with Our Commission but Wee deny it was the occasion of the Petition of the Commons in that Parliament In which petition they intending to shew the illegality of those Commissions and to obtaine as they thereupon did a confirmation of former Acts to the contrary do recite the Statute of 25. E. 3. 18. E. 3 c. 8. and that part of the Statute of 1. E. 3. which is against carrying of men out of their Counties and yet neverthelesse they wholly omit this Statute of 13. E. 1. and this first part of the Statute of 1. E. 3. concerning the Arming Whereas it is to be presumed they would have also recited this Statute of 13. E. 1. if they had conceived the same to be as this Declaration sets it forth the certaine Assize for armes and such a Statute whereto all the rest had reference or any way materiall against part of these Commissions But howsoever making use of the later part of the Act of 1. E. 3. against carrying of the Subject out of the County they would have made use also of this part of 1. E. 3. concerning the arming and desired a confirmation thereof as well as of the residue and not thus purposely rejected it if so be they had not upon consideration first resolved that that part of 1. E. 3. was no wayes against the Commission And now Wee come to the Statute of 25. E. 3. whereupon the Objection stands thus By the Statute of 25. E. 3. the Subject is not to be constrained to finde men at Armes c. if it be not by common consent and grant made in Parliament But by this Commission the Commissioners have power without consent or grant in Parliament to command those who are able of body and estate to arme themselves and those who are impotent but able in estate to find Armes for others which the Declaration in some places
goe at their owne charges not onely out of their proper Counties but also upon occasion of some insurrections into VVales which at that time and untill the Act of Vnion 27. H. 8. was to some purposes at least commonly reputed a distinct Dominion as appeares even by this Parliament Roll in these words That none of the said Commons be distrained to goe into VVales or else-where out of the Realme and otherwise the usuall phrase in severall Acts of Parliament being also to this day the Kingdome of England and Dominion of VVales And such a Commission Wee may well admit to be against all those three Statutes without impeachment of Ours Wee shall say no more as to this Statute single but that as We have observed before both in the Parliament Roll and Printed Act the first Clause of 1. E. 3. concerning arming being purposely omitted it shewes that the meere matter of causing the Subject to be armed was not the grievance then complained of or meant to be redressed Having thus farre proceeded in Our particular Answers unto the severall Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4. H. 4. as they were appliable to the first Objection made upon them against Our imposing of Armes upon the Subject Wee shall in the next place proceed to the Answer of the other Objection made against Our Commission upon the Statute of 1. E. 3. and 4. H. 4. of Confirmation For as to the other Statutes of 13. E. 1. and 25. E. 3. We doe not conceive that they are or can be meant unto this purpose Hereupon the Objection is this That by the Statute of 1. E. 3 and 4. H. 4. the Subject is not compellable to go out of His County but in case of the sudden coming of an Enemy which the Declaration interprets of an actuall Invasion But this Commission gives Power not onely to compell the Subject to goe out of his County before an actuall Invasion as the case is put in the stating of it but as it is expressed in other parts of the Declaration without Limitation and at pleasure To this Objection Our Answer is That both the sence of the Statutes and of the Powers of Our Commission are mistaken For first as Wee have before stated it Our Commission gives that Power of conducting out of the County onely against an Enemy and for defence of the Countrey in case of imminent danger and but when and where it shall be most needfull And so not without limitation and at pleasure And secondly as to the sence of the Statutes We do deny that the Subject is not compellable to goe out of his County unlesse in case of an actuall Invasion by a forraigne Enemy And herein though Wee have not upon this Commission necessary occasion to dispute it yet Wee cannot but observe That the Declaration allowes of no necessity of compelling the Subject out of the proper County in case of actuall rebellion and onely against a forraigne Enemy the ground whereof is a mistake in recitall of the Statute of 1. E. 3. by the Act of confirmation of 4. H. 4. of the word And betweene the two words necessity and suddaine comming The Act of 1. E. 3. going thus That no man be distrained to goe out of his County but where necessity requireth and sudden comming of strange enemies into the Realme And the Act of 4. H. 4. which as We have before observed reciteth not the whole Statute of 1. E. 3. but so much thereof as upon occasion of the late forraigne service did then concerne the present complaint being in these words That none shall be distrained to goe out of their County but onely for the cause of necessity Of sudden comming of strange enemies into the Realme Whereas if in this recitall the word And had been put in place of the word Of or before it both had agreed and so the sence of the Statute as to this matter of going out of the County had been upon 4. H. 4. as it is upon 1. E. 3. That no man be compelled to go out of the County but in case of necesity or coming of enemies the word And in exposition of Statutes being most frequently taken for Or according to the Subject matter and so the Statute had excepted two cases necessity arising from within by actuall rebellion and necessity arising from abroad by sudden coming of strange enemies this exception in both being absolutely necessary for defence of the Realm and according to the Common Law of which the Statute is but declarative and the practice both before and since And indeed it could be no otherwise in property of speech for there cannot be a cause of necessity of the sudden coming of enemies but there is a necessity of defence against their coming And in this case We are to be guided by the Statute 1. Ed. 3. as it was Originally as it is also truly set forth in the Declaration and agrees with all printed Statutes both in English and French ancient Manuscripts all of them derived from the Originall Statute Roll which was lost before 4. H. 4. that which now remains being but a Transcript of a Transcript Thus then without more We shall apply Our selves to the Objection as it is made upon the words of 1. E. 3. both in the Originall and the Recitall And We say That the Subject is compellable to go out of his County for defence of the Kingdom as necessity shall require before the Landing or other Entry of the Enemy to prevent his Landing or Entry And for this We shall but recite the words againe And they are these That no man be compelled to go out of his County but where necessity requireth and sudden coming of strange enemies into the Realm Wherein it seemes to Us most plaine that these words require no such Actuall Landing or Entry of an Enemy into the Kingdom before the Subject is Compellable out of his County For the words of the Act are not as to this point when the Enemy is come but upon the coming not within the Realm but into the Realm And all men know that in ordinary Speech a man may be said to be coming into a place when he is upon a remove to a place but most properly when he is on his way especially when he approacheth with an intention to enter thereinto and in such sence these words of coming into the Realm must be taken in this Statute But in case the words of the enemies coming into the Realm might bear a doubtfull interpretation that sence must be taken which agrees with the Common Law before practised Whereof this Act is but Declarative the constant practice of all ages since that is That the Subjects have ever been commanded and gone out of the County against the Enemy before any Landing or Entry And to give this Statute of 1. E. 3. any other sence were against all Common reason and the rules of government
magis necesse fuerit In case of imminent danger for defence of the Kingdome and Countrey from time to time as well to the Sea-coast as other places where it shall be most necessary And although notwithstanding all these limitations and cautions it be true That in this charging of Arms as also for the times and places of calling together Our Subjects and of conducting or leading them and the dangers upon which they are to be so conducted and led much is left to the discretion of the Commissioners as it must of necessity in all Commissions where the places times and occasions of execution of them depend upon future accidents and circumstances and cannot be certainly knowne or described at the time of the issuing of the Commissions Yet neverthelesse it cannot be inferred thereupon That therefore Our Commissioners have a meere absolute arbitrary Liberty of Will to doe what they please But that if they shall wilfully and unjustly grieve any of Our good Subjects in exceeding or not observing Our Limitations or Directions they are by Law clearely punishable by Indictment for the same Nor are or shall any of Our Subjects so grieved be without remedy or reliefe And to the end that every County so farre as in Vs lyeth should have cause to rest the more assured against any evill usage and abuse By this Commission Wee have appointed for Commissioners such as have estates in the severall Counties and are Persons of Honour and Reputation who are not onely engaged to all fairnesse out of their owne interest but also in the concernment of their Posterity Kindred Alliance Friends and Tenants and the good affection of their Countrey which to Persons of such Condition as they are is of a consideration beyond their Fortunes So that Wee hope their forwardnesse in undertaking this trouble for the publike defence will occasion in Our good Subjects rather a willing obedience unto Vs then the least distrust or jealousie of any of them Having thus stated the substance of Our Commission and prevented that mis-understanding which this Declaration might have else begotten thereupon Wee in the necessary justification thereof and vindication of Our owne Honour against those expressions in that Declaration which so nearely doe concerne Vs under the Common name of Evill Councellors as if Wee had violated Our Lawes even those so lately made broken Our often Protestations of governing according to Law and done that which would bring Our people into a slavery shall now joyne issue with Our two Houses in every materiall part of their Declaration both in the consideration of the pretended Danger Inconveniency and Illegality And herein first for the pretended Danger and Inconveniency so much urged Wee do deny That this Commission is full of Danger or Inconveniency to Our Subjects or will bring an heavier Yoke of Bondage then the Ship-money or any other illegall charge taken away this Parliament or indeed any Danger or Inconvenience at all And therein Wee appeale to each good mans conscience and reasonable understanding In a Kingdome as this is which in its fundamentall policy as well for its owne assurance against the danger of Forraigne Aids as the bad use that might bee made of great constant Forces whether forraigne or native must necessarily be defended by it selfe What other way of defence can be imagined but by the Subject What more reasonable proportion of charging them can bee found Wherein can the Limitation of the otherwise Arbitrary Discretion be bettered Or how in any one particular can a more equall fitting way be taken for the avoyding the grieving Our good Subjects in their own particulars Yet withall providing for the defence of our Kingdome in the generall then is by this Commission And Wee cannot but professe Our Wonder That since as Wee shall shew this very Commission was with so much care both in respect of the Commissioners and the powers of execution thereof over the persons to be commanded allowed and setled in all points to the very desires of the people and that in Parliament in the fifth yeare of King H. 4 how such Danger Inconvenience and Bondage can be by Our two Houses imagined in this Act of Ours without violating that rule so often urged by them though not so properly applyed to them without Vs That a dishonourable thing ought not to bee imagined of the Parliament And it is as strange to Vs that all this should happen by this Commission and yet that Our Subjects should for so many yeares past have enjoyed so many happy dayes in the reigne of Queene Elizabeth and Our Father both of blessed memory under the provision of Lieutenancy which is agreed by this Declaration to be little differing from those of the Commissions of Array in the Powers And lastly Wee demand Whether the persons appointed over the Militia by Our Houses of Parliament have not by their pretended Ordinance or Orders most of those powers nay some greater over the Subject in this matter of the Militia then are in this Commission and how they themselves can imagine these powers to be of a better nature by their authority then they are by Ours And as to this taxe of danger and inconvenience as in the generall it did require no answer at all though for the satisfaction of Our people Wee have therein thus enlarged Our selves so for that particular of the Yoke of Bondage thereby in making it heavier then that of Ship-money since they have not shewed in what particulars Wee shall say no more but this That by this Commission no money at all comes to Vs or to Our dispose nor is any money appointed to be raised but onely Arms provided And the Arms which Our Subjects are charged to beare or finde are to bee their owne proper goods which Sir Richard Hutton in his Argument in print against the Ship-money well observed and thereby differenced the providing of Arms and payment of Ship-mony and are provided once for all and not yearly to be renewed as taxes for money might bee and remaine in their owne custody and for their owne defence as well as Ours Wee shall now proceed unto the next generall issue touching the pretended illegality of Our Commission of Array and shall justifie the legality thereof by Common Law and by the practise of former Ages conforme to it and by Statutes in the very point against all the severall pretences mentioned in the Declaration whereunto Wee shall give particular Answers And Wee shall first begin with the Common Law whereunto the Declaration saith this Commission is contrary and therein affirme That this Our Commission is warranted by the very fundamentals of Our Government and as VVee said in Our late Proclamation the right of issuing thereof is inherent in Our Crowne For since as Wee hope none will deny the Kingdome must of necessity be ever in readinesse in time of danger at least by power of Arms to prevent or suppresse Rebellion at home and Invasion from abroad
and to that end the Subject must be armed and prepared before hand and conducted after as there shall be occasion And that this cannot be done without a Command or Government Wee desire much to know in vvhom out of Parliament for Parliaments are not alwayes nor can bee called at all times or meet on the suddaine this power can be but in Vs as the Supreame Governour as it is in all other States be the persons of the Governours one or more according to the forme of each State And can the Supreame Governour according to his duty and Our Selfe more particularly according to Our Oath otherwise afford Our people that protection which is due unto them in maintaining to them the Lawes in the matter of Property and Liberty against private injury or oppression As well as Our Selfe and them and whatsoever is deare unto any of Vs against Enemies or Rebels especially the just Rights and Prerogatives of Our Crowne wherewith God hath trusted Vs according to the fundamentall and well-established policy of Our State as well for the peoples good as Our owne honour both which must bee preserved And will any man say that by calling of Our Parliament which is but a meeting of Vs and Our Subjects and such they continue as well collectively in the two Houses as they were before singly and a meeting in its owne nature dissolvable at Our pleasure and though now enlarged by Vs in time yet not in power Wee are growne lesse or departed with any thing to them either by way of abdication or communication of Our Royall Power This upon the common principles of Reason and Government is so obvious to every man that Wee shall for the present proceed no further therein either by quotations of Acts of Parliament or other legall authorities some whereof Wee have recited in Our late Proclamations till Our two Houses shall give Vs some justifiable instance of some good time to the contrary Wee come next to the continuall practice by Vs alleadged being alone sufficient to declare an originall fundamentall Law of Our Kingdome or at least by a tacite consent to introduce a Law and to this purpose Wee shall shew that the power of granting Commissions for the defence of the Kingdome in the generall whereunto onely Wee applyed and doe apply the opinions of Sir Richard Hutton and Sir George Crook not meaning therein as neither in Our Proclamation as is clearely mistaken the present forme setled by 5. H. 4. which Wee Our selves declared was made upon alteration though for the substance thereof Wee might have said so much and made it good as it appeares by the Marginall Quotations is warranted by the presidents in former Ages And this practice the Penner of this Declaration doth indeed not deny for having before confessed the often issuing of Commissions of Array after 5. H. 4 in the times of H. 4. H. 5. and H. 6. and hee might have brought it to later times if hee had so pleased he doth afterwards confesse that divers Commissions of Array issued in divers Kings Reignes before 5. H. 4. But as to this point of practice before 5. H. 4. hee saith by way of answer That for the most part they were warranted by particular Acts of Parliament And yet amongst so many presidents of severall Commissions he gives instances onely of two yeares in 13. 14. E. 3. of Commissions of Array then issued warranted by Act of Parliament Which if true doth no more disprove the legality of other Commissions of Array constantly issued without a Parliament then it doth of Commissions of Oyer and Terminer which at the same time in 14. E. 3. together with the Commissions of Array were appointed to issue to the same persons or of any other Act which the King doth by the advice of his Parliament though he may do it without them rather it implyeth the legality and the former usage of such Commissions of Array in that it appoints such Commissions to issue but limits not at all the particular Clauses or Powers to be inserted therein as a thing known and usuall to be done But the truth is both the presidents do concerne the drawing of men out of the Kingdome to a forraign Warre and so are nothing to the purpose Wee have in hand And that of 13. E. 3. is not at all a Commission of Array but of another nature giving power to the Lord VVake and others to provide moneyes and to cause certaine persons there named who had particularly undertaken the service of the Scottish Warres Leur arraier appareiller d'aller vers Newcastle To array and prepare themselves to goe to Newcastle whither they were to be brought at the charge of the Counties and to be there at a time appointed Having thus set forth the continuall practice of issuing forth Commissions of Array in former ages whereunto Wee never found till now any exception as for home-defence and the absolute necessity thereof Wee doubt not but every indifferent Iudgement will easily conceive That this power is a right Vs by by the Common Law And the rather when they shall consider That a Commission of Array having beene issued by the King in 5. H. 4. The Commons in Parliament that yeare did not except to any part thereof as illegally no not to the Clauses which seemed heavy over the Commissioners nor did except at all to any the powers of execution thereof over the persons to be commanded but did acknowledge the Royall assent for the amendment and alteration of that Commission into the now present forme to be an Act of great grace And herein Wee cannot but admire that the Penner of this Declaration should urge it as a reason why the Commons in that Parliament of 5. H. 4. complained not for reliefe against the Commission in the powers of execution over the persons to be commanded because as hee supposeth they knew that they were so clearly against the late Statute of 4. H. 4. Whereas if it had beene so they should the rather have complained because they issued against so late a Statute so cleare in the point unlesse the policy and temper of the times be since much altered for in a matter of so high a nature as the powers of this Commission which as this Declaration confesseth did surely most concerne them and the Kingdome They were bound as well in duty as discretion to have sought remedy against so great a violation of the Law and Liberty and the rather at this time when they thought fit to petition against part of the Commission since an exception but to a part especially by him who ought to complaine against the whole is a violent presumption of his allowance of the residue Wee come now more particularly to the examination of this Our Commission as it stands by Statute-Law and herein as in the matter principally insisted upon in the Declaration to be disproved Wee do affirme as formerly in Our Proclamation
calls finding Armes and in some places finding men at Armes and is therefore against that Statute For this objection Wee need do no more then referre Our selves to Our former observation of the different sense of the severall words of Arming a mans selfe and finding Armes for some other which are the onely words used in the commands of this Commission the words finding of a man of Armes or other compleat Souldier used in this Statute and intended to be thereby prohibited whereby it will be apparent that arming a mans selfe or finding bare armes for others is not within the letter of this Statute Neverthelesse for a more particular Answer 1. as to the first of these powers in Our Commission concerning Arming a mans selfe Wee say That this Act being against finding of men at Armes or other souldiers doth not any wayes intend to prohibit the compelling of men to arme themselves that is their owne persons For that had beene not onely against the Common Law whereof that Act is but declarative but also against those Statutes of 13. E. 1. admitting it provided as the Declaration supposeth for defence extraordinary and against 1. E. 3. by both which Statutes it doth clearly appeare that the Subject is in some manner compellable to arme himselfe And the Act of 25. E. 3. is in generall against all finding of men armed at any time So that in that sense whatsoever the occasion is though it be upon an actuall invasion of an enemie he cannot be compelled to find armes And that exposition of the Statute would wholly take away all compulsory means of defence Nor will it be sufficient to answer this That the arming according to those Statutes is assented unto in Parliament and so is within the exception of the Statute of 25. E. 3. For the consent in Parliament intended by this exception must be understood of future consent in Parliament as well as the constraining men to finde Souldiers prohibited by the Act is meant of a future finding Souldiers And in the exception of the Statute of 25. E. 3. There is not onely to be a consent but also a grant in Parliament for so the words are if it be not by common consent and grant in Parliament but in those Acts of 13. E. 1. 1. E. 3. there is no colour of a grant made at all And this Statute being declaratory of the Common Law as appeares by the reason of the Act delivered in the Petition of the Commons in these words Car cet est encountre le droit del Realme For it is against the right of the Realme which is as much as against the fundamentall liberty of the Subject this Statute of 25. E. 3. must bee construed as of the Common Law and before any Statute And secondly as for the other part of Our Commission which is concerning the charging those who are impotent in body but able in estate to finde Armes for others If such finding of bare Armes had beene within the letter of that Statute or the finding of a compleat Souldier by such a man had beene within Our Commission yet it would have beene a harsh construction and doubtlesse contrary to the intention of the makers by generall words which were meant onely for provision in the generall Case thus to have spared him in this speciall and particular Case of impotency from contributing to the defence of the Kingdome dome by finding another as in his place whilest he is as much or more concerned then others who must undergoe as much charge and must also adventure their owne persons And by the Common Law whereof as Wee have said this Statute is but declarative those who were not fit to beare Armes were notwithstanding chargeable otherwise towards home-defence as appeares by the Presidents already cited and many more And now Wee shall give the true sence of this Statute of 25. E. 3. And this will best appeare upon the end and occasion of the making which were these King E. 3. having had his Treasure exhausted by the French Warres was upon that occasion inforced to many hard pressures upon his Subjects So that they had severall times bin charged with providing and setting forth of Souldiers and sometimes with maintaining or paying of them and this in so excessive a manner as that it cost a County sometimes at once a thousand pound And all this was done with relation onely to a forraigne War wherein the Title of the King to France was onely in question and nothing which directly concerned the Kingdom of England against these there was just cause to make provision by some Law especially now when the Wars were renewing And accordingly this Statute was made against imposing such charges upon the Subjects And what resemblance there is betweene those cases and Our case of charging the Subjects onely to finde Armes for themselves or in case of impotency for another as in their stead and all but for home defence Wee refer to every mans Iudgement And thus Wee leave these three Statutes of 13. E. 1. 1. E. 3. and 25. E. 3. with this observation that if it be true which the Declaration takes for granted that they are all to the same effect that then Our Answer to any of these three is an Answer to the rest Wee are now come to 4. H. 4. being the last of these Statutes which in the matter of Arming are objected against Our Commission as it stood at Common Law before 5. H. 4. And herein Wee agree that the Parliament Roll whereupon the Statute is framed is truly set forth in the Declaration yet Wee conceive that in Substance there is no more upon the Roll then in the Print though some passages may give some light for the exposition of these other Statutes of 1. E. 3. and 25. E. 3. therein confirmed So as this Statute of 4. H. 4. being in truth but an Act of bare confirmation without any additionall explanation is already answered But because the Declaration doth import That the Commissions which issued lately before 4. H. 4. and were the occasion of that Statute and are damned thereby as contrary to the Acts of 1. E 3. 18. E. 3. and 25. E. 3. were of the nature of Our Commission which yet is not indeavoured to be proved Wee shall also give a particular answer touching those Commissions And herein We say that first it doth not appeare nor is there any reason to presume that any of those Commissions were of the Tenor of Ours And in case those Commissions did amongst other Powers containe also the Powers of Our Commission touching the imposing Armes upon the Subject it doth not appeare that those Commissions were particularly in those very powers held unlawfull Both which must but neither will be proved otherwise there can be no application But the truth is apparently to be inferred out of the Roll That upon those Commissions the Subjects were inforced to go or to finde others to
and defence which is not to let the Enemy first come in if it be possible to keepe him out and it may be much more ease to prevent the coming into the Land especially by Sea in opposing the Landing then afterwards to expell him And it cannot be expected that the Forces of one County alone should be able to resist the entry of a powerfull Enemy And lastly as for those Commissions which were damned in 4. H. 4. those had no resemblance to our Case nor are warrented by the Exception of 1. E. 3. For that as appeares before the Subject was then carried out of the County not for defence of the Kingdom as the Exception of this Statute requires but for suppression of an Insurrection in Wales which was not then taken as part of the Realm and the Prayer of the Commons in 4. H. 4. made upon that Occasion and therein grounded upon 1. E. 3. was not meerly because they were carried out of the Counties but because they were carried out of the Realm in a Service which was not for the necessary defence thereof We have thus far upon this last head of Our discourse only Answered the Objections made upon these Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4 H. 4. We shall now conclude this part of Our Answer with a return of all those Statutes against the Declaration and in justification of Our Commission First as concerning 13. E. 1. since that as We have before observed the Statute was made only with relation to the keeping of the peace it implies that there is another rule in the matter of imposing of Armes for defence extraordinary Secondly as for 1. E. 3. besides Our former observation That in all probability the Act was made but upon Complaint against the excesse of Charging by the Commissioners and not against the powers of that Commission which had lately before issued which rather justifies the Commission then otherwise We further say That if We should admit that the Statute of 1. E. 3. That no man should be charged to arm himselfe otherwise then he was wont in the time of the Kings Progenitors hath any relation unto 13. E. 1. and that so the sence thereof were That none should be compelled to finde Arms otherwise then according to that Statute of 13. E. 1. Yet then that Statute of 1. E. 3. as 't is plain must be meant only as concerning ordinary defence and that as the Subject is in cafe of necessity to be carried out of the County So in that case he may be compelled to be Armed otherwise then at ordinary times To this purpose We note that in the Statute there are two distinct propositions joyned together one against the Arming of the Subject the other against going out of the County And the clause which is next subjoyned is an exception Sinon pour cause de necessite c. Unlesse it be for necessity and the sudden coming of strange enemies Which exception upon such admittance is not only appliable to that last clause before concerning the going out of the County but as to the Arming The sence thereupon also being thus That though in case of ordinary defence the Subject be not compellable to bear other Arms then according to 13. E. 1. as neither to go out of the proper County yet for the extraordinary defence of the kingdom in case of necessity wherein more must be done then ordinarily both Arms are to be imposed by other rules then in 13. E. 1. and also the Subjects are to go out of the County For so it followeth in the next words of the Act which are these And then it shall be done as bath been used in times past for the defence of the Realm And this sense upon this admittance cleerly appeareth out of the course of former times in such cases to which the Statute doth refer As for 25. E. 3. besides that the Declaration faith it is to the same effect with 1. E. 3. and was made with relation to a forraign war as We have observed if as the Declaration must admit that the exception of finding men at Arms c. by Common consent and grant in Parliament be intended as well of Acts of Parliament past as to come then Our Commission in the power of imposing Arms being warranted by 1. E. 3. is also warranted by that Act of 25. E. 3. And for 4. H. 4. besides what We have before observed upon the omission therein of the first part of 1. E. 3. concerning imposing of Arms and that it applies 25. E. 3. but to a forraign war the generall sence and Judgement of that Parliament excepting then only against other Commissions seems to allow of this for that otherwise it is not to be imagined that immediately in the same yeer there should issue out a Commission of Array and in the next yeer there should issue out that other which was corrected in 5. H. 4. both of the same form and the latter bearing Teste the day of the Summons of the Parliament of 5. H. 4. And that at that Parliament though some amendments were made in it yet no exception should be taken to the legality of the powers whilest as the Declaration observes it is probable That many of the House of Commons and it is certain that most of the House of Lords were members of the Parliament of 4. H. 4. and knew the meaning thereof And thus we have answered to the full satisfaction as We hope of all indifferent Judgements the severall Objections made against the legality of Our Commission of Array as it stood before and at the making of the Act of 5. H. 4. and thereby proved That Our Commission was warranted by the Common Law That the powers thereof remain untouched by the Statutes of 1. E. 3. 25. E. 3. or 4. H. 4. And that it was afterwards allowed and setled as a rule or pattern whereby Commissions should issue in after ages by the Act of Parliament of 5. H. 4. We have yet some other Objections in Our way which admitting the legality of Our Commission as it stood in 5. H. 4. are made against it upon some latter Acts The first in time is upon the Statute of 4. and 5. P. M.c. 4. which settles an assize and proportion of Men Horses and Arms which every man was to finde which the Declaration saith was without Question a repeale of this Statute of 5. H. 4. And accordingly We shall take that first into consideration For though upon the repeal of that Statute by I. Jac. c. 25. the Declaration agrees That Our Commission if once setled by 5. H. 4. is now again in force Yet an inference is made from thence That the Parliament of 1. Iac. would never have repealed that Statute of 4. 5. P. M. if they had thought that any such power of imposing Arms as is in the Commission would have been thereupon revived The words of
the Statute of 4. 5. P. M. cap. 2. are these Be it enacted c. That as much of all and every Act and Statute concerning onely the keeping or finding of Horse Horses or Armour or any of them heretofore made and provided and all and every forfeiture or penalty concerning onely the same shall be from henceforth utterly void repealed and of none effect To this We say first that 4. 5. Phil. Mar. doth not repeal 5. H. 4. either by the words or meaning As to the words They extend onely to a repeal of such Acts which do appoint particular Assizes or Assessements of Arms all which upon that Statute of 4. 5. Ph. M. which appoints a new Assize for kinde of Arms and proportions would be either contrary or altogether uselesse And to that purpose the Statute speaks of repealing of Acts concerning keeping or finding of Horse Horses or Armour which as it must be meant of Acts concerning keeping or finding of Horses in particular for kind or number So as concerning armour in generall it must by the constant Rules of construction of Statutes be meant of Acts of the like nature as the former that is Acts concerning the appointment of some particular armours as a Gorget a Brest-plate and the like such as were the Statute of 13. E. 1. and 33. H. 8. But this Statute of 5. H. 4. is nothing concerning the appointment of any particulars either for the kind of Arms or proportions but doth onely enact a Commission issuable without commanding that it shall issue which is referred to the Kings pleasure upon a lawfull occasion Nor doth the Commission it self mention as is apparent any particularity of Arms or proportions And if the Statute of 4. and 5. Ph. M. were meant of such Statutes as speake of finding Arms in generall it had as well repealed the Statutes of 1. E. 3. 25. E. 3. and 4. H. 4. as this Act of 5. H. 4. which no man will say was ever intended But in truth this Commission being in generall doth no wayes contrary this Statute of Ph. M. but that the particulars of the Assessement by that Act both for the severall Kinds of Arms and proportions might have been very well put in Execution by this Commission For the Commission gives Power to assesse every man juxta statum facultates According to his degree and Ability And this Parliament of 4. and 5. Ph. Ma. appointing Arms sitting for defence of the Kingdom in those times and proportions fitting in their Iudgements for the severall degrees and abilities of every man That Act did not thereby take away the power of the Commissioners wholly but did only give particular rules for the kind of Arms and proportions which the Commissioners were to observe in the execution of their power thereby only regulating but not destroying their powers And if this Statute of 4. 5. P. M. had taken away the first Powers of the Commissioners concerning arming yet had it not taken away the other severall and independent Powers of Arraying Training Mustring or Conducting those men so furnished according to that Statute but that they had remained to have been executed at least by a distinct Commission which might have been issued at pleasure for that purpose And this also appears by the Statute of the same Parliament of 4. 5. P. M. cap. 3. which is in force at this day which being concerning mustering hath occasion to mention and doth expresse the old power still remaining to issue Commissions of that nature in these words That if any person that shall be commanded at any time hereafter generally or especially to muster afore any such who shall have authority or commandment for the same by or from the King or Queens Majesty or the heirs or successors of the Queens Majesty or by any Lievtenant c. do absent himselfe or at his appearance do not bring his best furniture of Array and Arms as he shall then have for his person in readinesse shall be imprisoned c. But neither by that nor the other Statute of P. M. cap. 2. is there any new authority given to the King to grant Commissions for Musters but the same is admitted to continue as not repealed And as to that point of appearing at Musters We made use of that Statute of 4. 5. P. M. cap. 3 in Our Proclamation And doe wonder how the Penner of that Declaration could imagine We meant any such further use therein upon that Statute as the Declaration sets forth And here by the way We observe a mention in this Statute of 4. 5. P. M. cap. 3. of a power of mustering in Lievtenants to whom other Powers contained in Our Commission were also granted and might have been also mentioned in this Statute if there had been occasion And secondly as to this Statute of 4. 5. P. M.c. 2. We say That in case that Act of 5. H. 4. had been repealed by 4. 5. P. M. yet this Commission had still continued in force notwithstanding any bare repeal for that as we have proved this commission was before that Statute warranted by the Common Law which did still remain in force so far as it was not expresly contrary to the further particulars of that Act And how We come to the Objection principally intended against this Commission upon the alteration of the Law at this day since 5. H. 4. wherein the case is this The Statute of 13. E. 1 made an assize of Arms for the severall kindes and proportions according to mens severall estates Then 5. H. 4. enacts this Commission with power to assesse men according to their abilities Afterwards 13. E. 1. is repealed by 21. Iac. The argument hereupon in the Declaration is made thus That the Commission as to the finding of Arms Iuxta statum facultates is so grounded upon that Statute of 13 E. 1. which was then in force and did enact the finding of Arms juxta statum facultates in manner as is therein expressed that that Statute of 13. E. 1. being since repealed that Commission is likewise repealed and become unwarrantable at this day For answer whereunto in the first place We do deny that this Commission is any waies grounded upon 13. E. 1. First for that as We have proved 13. E. 1. originally was not meant as a provision of Arms for defence extraordinary much lesse so intended here Secondly if it were for defence extraordinary yet neither this Act of 5. H. 4. nor the Commission thereby setled have any relation thereunto in words much lesse in meaning For the words There is no mention of 13. E. 1. either in the Act or Commission but the words of the Commission are generall for imposing Arms secundùm statum facultates According to every mans degree and ability without limitation of the kinde of Arms or particular severall
proportions of estates And for the meaning We cannot conceive it to be lesse then according to the full extent of the words For there is lesse reason to imagine that the Parliament of 5. H. 4. did any waies intend the assize of Arms established by 13. E. 1. then there was to imagine the like upon the Act of 1. E. 3. for that between 1. E. 3. and 5. H. 4. all kinde of Arms were more altered then betwixt 13. E. 1. and 1. E. 3. and in this space of time Guns were come into use in England which were both necessary to be commanded and provided against by other arms And to avoid Repetitions We further referre Our self in these two particulars to what We before observed upon the Statute of 1. E. 3. And as for any restraint of those generall words of Our Commission by any construction of Law to the particular assize of 13. E. 1. We say That though a subsequent particular Act may restrain the generall words of a Commission as We have said before upon the Statute of 4. 5. Ph. M. because the subsequent act as it may take away so it may limit any Power given either by Common Law or Statute yet a precedent particular Act upon the same reason because it hath no such power doth not regularly restrain the generall words of a subsequent Statute which hath Power to controll the former and as in Our case where the meaning appears to be as large as the words cannot possibly restrain them But in this We need not labour For though the Declaration in making way for this Objection admits the Commission to have some colour to be legall as grounded upon 13. E. 1. as to that part of finding Arms juxta statum facultates Yet it is the main and throughout ground of the Declaration That this Commission because it is generall is against the Statute of 13. E. 1. and the other Statutes and so void whereas if the Commission had been restrained to 13. E. 1. then it could not have been void as contrary thereunto But admitting that this Commission was by construction of Law necessarily to be regulated according to 13. E. 1. whilest that Statute was in force Our answer is that neverthelesse this Commission did not fall by the repeal of that Statute Wherein We shall admit which the Declaration supposeth though by Us it is disproved That this Commission was not warranted at the Common Law before the Statute of 5. H. 4. and then the Case is but this The Statute of 13. E. 1. doth appoint a particular Assize of Arms for kinds and proportions according to this necessary rule the arms for the kinde shall be fit for defence and for the proportion shall be according to mens abilities for such is the Act. Afterwards 5. Hen. 4. doth establish this Commission wherein there is no particular reference unto this Statute of 13. E. 1. but the rule is generall to charge Arms for the kinds according to the use of the time for that is necessarily implied and for the proportions according to mens degrees and abilities which are equall rules fit ever to continue though the kinds and proportions may and must alter In this case We doe agree That if the Commission had expressely referred to charge according to that Statute of 13. E. 1. then that Commission could have been no longer of force then the Statute had continued For then it had been no more in substance then if the powers had been but particular to charge certain Arms and in certain proportions according to that Statute And in this sence We must agree with the Declaration That a Commission being so grounded upon a Statute upon the Repeal of the Statute both fall together But in this case thus admitted where the Commission is generall and if 13. E. 1. had never been must have had its full operation according to the words both for the kind of Arms and proportions and was regulated but by a bare construction of Law both for Arms and Proportions by 13. E. 1. which the Parliament might think fit to be a rule for that time it seems strongly to follow that when 13. E. 1. which was the only impediment why it did not work according to the extent of the words is repealed the operation of the Law upon this Commission by force of that statute must likewise cease and the Commission must be construed according to the words the rather for avoiding of this mischief that otherwise the Kingdom should be without all necessary means to put it into a posture of defence which that Act did intend principally 〈◊〉 perpetually to provide for But more fully to take off this Objection We must here remember what we have proved before that the Powers of this Commission in the latitude of the words thereof for imposing Arms secundùm statum facultates according to mens degrees and abilities was warranted at the Common Law before any Statute and was to be executed without the direction of any particular Assize for kinds and proportions As at this day severall like powers for assessing men both by Statute and Common Law according to their abilities as for high ways poor of the Parish and the like are to be executed These then being the Powers at Common Law As it is cleer they are not taken away by any affirmative Statute such as 13. E. 1. seems to be So if We shall admit as strongest against Our self that there were any negative words in this Statute or any other Statute grounded thereupon that the Subject should not be compellable to be armed otherwise which other Statutes according to the ground rightly taken in the Declaration must necessarily fall by the repeal of 13. 〈◊〉 1. Then that Statute being repealed the Commission thus freed of those Statutes remains in full force as it was at the Common Law And now that wee have passed over the Acts of Our Predecessors as well before as after the Act of 5. H. 4. We are encountred with Our own Acts the Petition of Right and a Recitall in an Act this present Parliament as being both against Our Commission Whereunto We need to say but this That it appears out of themselves that neither of them were ever meant to introduce a new Law So as if as We have proved Our Commission be not against the Law as it stood formerly they were not Intended nor justly ought to be extended against it But to give yet more particular and full answers thereunto We say First for the Petition of Right it no waies extends to our Commissions of Array The Objection made upon it stands thus The Petition of Right sets forth That by the Lawes and Statutes of this Realm the Subjects have inherited this Freedom That they should not be compelled to contribute to any Tax Tallage Aid or other like charge not set by common consent in Parliament And after complains That divers charges have been laid and
levied upon the People by Lords Lievtenants Deputy Lievtenants Commissioners for Musters Justices of Peace and others by command or direction from Us or Our Privy Councell against the Laws and free Customs of the Realm which the Declaration alleadgeth to be the breach of those Laws Then the words of the Petition are thus applyed That here is a Taxe or Charge imposed upon the people by Compelling them to find Arms by command and direction from Us under Our great Seal without consent in Parliament And the meaning of the Petition is thus inforced That it is very well known and doth sufficiently appear that the charges there mentioned to be laid by Lords Lievtenants and Deputy Lievtenants were the charging of the Subjects with Arms against Law by colour of their Commission from Us and consequently this Commission is against the Petition of Right For Our cleerer answer We shall set down the summe of the Petition for so much as concerns the unlawfull charging of the Subject And it is this First the Petition recites severall Statutes as made against the compelling the Subject to the making or yeelding any Gift Loan Benevolence Taxes Aids or such like Charges without Common consent in Parliament and next setteth forth a violation of those Statutes by the Commissions of Loans and Execution of them and that divers other Charges had been laid and levied by Lords Lievtenants and others as is aforesaid and lastly the Prayer is substantively of it self without any relative words yet extends to all that was before complained of and contains the substance of all those former Statutes in these words That no man be compelled to make or yeeld any Gift Loan Benevolence Tax or such like Charge without common consent by Act of Parliament And Our answer to that part of the Prayer amongst the rest is Let right be done as it desired And Our answer to the Objection stands thus First that whatsoever sence any words of the Preamble may seem to import yet without question there is no more in this Preamble then is after contained in the Prayer So if Our Commission be not against the Prayer there can be no Argument against it drawn out of the Preamble or if in truth there were more in the Preamble then in the Prayer whereunto only the Royall assent extends yet nothing could bindingly be concluded thereupon as We shall further shew upon occasion This then onely rests to be considered upon this Objection Whether the powers in Our Commission to compell the Subjects able of body and estate to Arm themselves and in case of impotency to find Arms for others for the necessary defence of the Kingdom can be said to be a compelling of the subject to make or yeeld any Gift Loan Benevolence Tax or other like Charge contrary to the Prayer of the Petition Upon the Case thus truly stated it is cleere That here is no yeelding or making of Gift Benevolence or Loan And as for making or yeelding any Tax or other like charge though it be true That this arming a mans self or finding Arms for another cannot be done without Charge Yet We appeal to every mans understanding whether Our Subjects can upon this Commission be said to make or yeeld for so are the words any Tax or other Charge against the Petition any more then if We command a City to repair their Walls or a Levell putting the Case before any statute to take away all colour of evasion to repair the Sea-banks when they were in decay being no particular advantage to Us but for the Common good of themselves The truth is That albeit the imposing of divers charges commanding divers Acts drawing charges upon the Subject though possibly for their advantage are void in Law notwithstanding it doth not follow that they are void as against this Petition For the Petition of Right as against the charges therein mentioned is onely to be intended of Money or other thing valuable and to be parted with to or for Us or Our advantage such as are all the charges more specially mentioned in the preamble and Prayer as that of Gift Loan and Benevolences And such as were those Charges intended in the Preamble under the generall expression of divers other Charges imposed by Lord Lievtenants c. which We think is very well known to most Counties to have been meer Pecuniary Payments and which We ought to have born And for the other charges that is of Taxes Tallages Aydes likewise mentioned which as to this purpose are but Synonoma and of one signification they are meant of money or other things valuable and for the King and so used in the old Statutes and had been in former times imposed upon the people without Act of Parliament and accordingly all of them are so to be expounded in the Preamble And the Prayer of the Petition saith nothing expressely against the Commanding the Subject to do a thing which may be necessarily of expence or Charge wherein the Act is onely intended and the Charge but a necessary Incident but the Prayer is onely against the compelling of the Subject to yeeld or make those kinds of charges So as the cleer sence of the Petition both according to the occasion of complaint therein mentioned and the Laws whereupon it is framed as well as the propriety of the words is only against drawing from the Subject either money or money-worth by any of those particular charges therein mentioned or any other charge of like nature under what specious title soever for the Kings advantage which the more plainly appears for that the charge must be yeelded or made as upon Gift Loan c. which must necessarily be intended unto some person and no other person can be here colourably intended but the King And if the Petition by any construction may extend against the commanding of any Acts which in the execution may induce charges yet such charges must according to the very words of the Petition be such like Charges that is for Us or Our advantage as the particular Charges therein mentioned of Gift Loan c. But this charging of the Subject with Arms for the necessary defence of the Kingdom cannot be said for Our particular advantage all Our Subjects having therein a common interest As for the meaning of the Petition inforced in the Objection from the Charges by Lord Lievtenants and others complained against in the Preamble sure We are that those must be such in the particular as are after contained in the generall words of the Prayer to which We have answered before And though it be to this purpose said in the Declaration That those Charges by Lord Lievtenants and others were meant of charging of the Subject with Arms certainly no such thing can appear in the Petition which speaks but only of divers charges but names none in particular nor can there be any other assurance that the Houses did intend any such thing but by Votes wherein they onely speak
of these Commissions not warranted by them are no cause to quarrell at the Commissions themselves more then at the Commissions of Peace because some Justices of Peace have exceeded or abused their authority And howsoever Those powers wherein they exceeded not Our Commission of Array could not be grievous as we have already shewed And as for the illegality of those powers We shall not nor will Our people be satisfied by bare Votes that they are illegall The same being done without hearing of Our Councell and without advising with the Iudges and demanding their opinions a course which was formerly used in Parliaments as appears even by this Record of 5. H. 4. amongst many others but in matters of Law which have of late risen in Our Houses of Parliament hath for what cause We know not been laid aside But We again say these powers in Our Commissions of Lievtenancies are legall and if there be any clauses in such Comissiōs which are illegall those clauses could not at all make the Commissions void for so much as was legall much lesse take away Our power of granting new Commissions omitting such clauses But if We should for this time admit the grounds of this Objection That Our Commissions of Lievtenancy had been such as this Declaration would have them yet it is but a very inconsequent Argument That those Commissions would not have issued so often and been so much pressed if the Commissions of Array had been Legall For the Commissions of Lievtenancy conteyned not only most of the powers of the Commission of Array but in many things exceeded them and were issuable in times of Peace whereas Commissions of Array commonly issued in times of Danger only and so there was occasion for the one Commission when there was none for the other But on the contrary that we may retort this Objection also since that the Commissions of Lievtenancy not much differing from the Commissions of Array in Power as the Declaration saith and in many things exceeding them have so often issued in the reignes of severall of Our Predecessors were allowed by the Judges of those times obeyed without dispute and not questioned in the Parliament of 1. Iac. or 21. Iac. nor were these powers wherein they agreed with the Commission of Array complained of by the Petition of Right but rather admitted and allowed as We have already shewed It may very well be inferred that both the Commissions of Lievtenancy and of Array as to those powers at least wherein they agreed were Legall and far from being any grievance to the Subject Thus far we have proceeded in the Examination and clearing of the Objections made against Our Commissions of Array Upon all which Objections we shall further observe That although the Declaration denies Our power at this day of commanding to Train or Exercise yet none of those objections touch any thing upon those Powers So that if all were true which is objected yet we should still have power at least by a distinct Commission to command Our Subjects to be Disciplined Mustered Trained and Exercised with such Arms as they had in a readinesse for that as we have shewed before these are distinct from the power of Imposing of Arms and may be severally granted or executed And now upon the whole matter the state of Our case is this It is Voted by Our Houses of Parliament That Our Kingdom is in imminent danger of destruction from enemies abroad and a discontented Party at home and that there is a necessity to put Our people into a posture of Defence In this case for defence of Our selves and Our Kingdom We have awarded Our Commissions of Array thereby giving power to the Commissioners persons We hope beyond exception to cause Our Subjects to arm themselves or if impotent in body to find arms for others according to their abilities in a reasonable and moderate proportion and to muster and train them at convenient times and places and afterwards upon occasion to lead them where there is a necessity for the defence of the Kingdom and the Expulsion vanquishing and Destruction of Enemies And We have shewed That the Powers of these Commissions are grounded upon the very principles of government and that without them We could not defend and protect Our Subjects as We are bound by Our oath at Our Coronation That they are warranted by the Antient Common Law allowed by the constant practice of former ages established by the Parliament of 5. H. 4. which caused a Copy of these Commissions to be entred upon the Roll as a Rule or President for after times and are not repealed or altered by any Statutes now in force And yet though this Danger and the necessity of putting the Kingdome into a Posture of Defence is thus agreed by both Houses neverthelesse this Commission and all others of like nature are by their Declaration said to be illegall And it is thereby denied That We have at any time Power to charge Our Subjects with any manner of Arms though for the absolute necessary defence of the Kingdom or that We can command them to be trained or exercised much lesse to be led out of the County though an Enemy be ready to enter or though Rebels be actually up in Arms How farre this opinion is consistent with Law Reason or Regall Power the safety of Our Selves and Our Subjects upon all this which We have said We leave to all Our good people to consider And since Our two Houses denying Us this Power without Us and against Our consent have made Orders which they call Ordinances for compelling Our Subjects to be Armed Trained Exercised Mustered and conducted and send for Our Subjects as Delinquents and imprison them for refusing to obey such Orders It is apparent That what this Declaration saith against Our Commission without just ground is true indeed of those Orders that is That they are contrary to the Law and Customs of the Realm destructive to the Liberty and Property of the Subjects and contrary to the Petition of Right as it is expounded in this Declaration as also against other Statutes FINIS See the printed Arguments fol. 25. 64 c. See 14. H. 3. in the printed Argument of Sir George Crook a Commission to the Bishop of Rochester and others and to the Sheriffe of Kent to cause all men at Arms in that County to be sworne and to assesse them what Arms they shall finde And divers other presidents there of Arrays in the times of severall Kings And see Cl. 14. H. 3. m. 15. Dors. the like to other Counties And 36 H. 3. as appeares in the History of Matth. Paris who lived at that time Fol. 864. Rex constituit generaliter per Angliam voce praeconiâ fecit acclamari missis super hoc brevibus ad singulos Comitatus ut secundum pristinam Consuetudinem arma civibus competenter assignarentur monstrarentur censerentur ut essent sufficiontia competentia
the paying of their wages or contributing towards either of them This then being the sence of the words Wee now proceed to the Statutes and apply them to the two Objections the one against imposing of Arms the other against carrying out of the County And first concerning the Statute of 13. E. 1. Thereupon the Objection against the power of imposing of Armes is this This Statute appoints a particular Assize for the kindes of Armes and Proportions as before But Our Commission doth give power to assesse for the kindes any Armes and for the proportions according to each mans ability which the Declaration termes to be without limitation and at pleasure and so is contrary to this Statute To this Wee answer That that Statute of 13. E. 1. besides that it is but an affirmative Statute was made onely for the ordinary defence of the Kingdome for the preservation of the peace at ordinary times and was not intended as a provision of Armes for defence extraordinary but that for the publique defence in time of Danger the King might and must charge other Armes and other proportions according to the exigency of the occasion Both which appeare together if Wee consider that the provision in that Statute mentioned which might be of use for the Peace is very insufficient for the Service of War For We cannot but observe the pettinesse of the Armes even according to the use of that time for he that was rated highest by that Act was to finde but a Hawberge which in that place signifies a Gorget a Breast-plate of Iron a Sword a Knife and a Horse and others but Gisarms which were Pike-staves Knives and other lesse weapons And yet at that time there were men at Armes which were Horse-men of compleat Armour Hoblers which were Light-horse and there were Pikes Lances Pole-axes and other weapons commonly used for Warre And no lesse considerable is it to this purpose That for the charge of this defence no man of what estate soever is by this Act charged above the rate of 15 Pounds in Lands or 40 Marks in Goods and he that hath 15 Pounds in Land or 40 Marks in Goods is charged as high as the greatest which is not to be imagined in case of provision for defence extraordinary And to cleare this further out of this and other Acts it is plain that this very Act expresseth it selfe in these words That every man have in his house Harnesse to keepe the peace and appoints those who are thereby assessed to pursue Hues and Cries after Theeves and Robbers which went in those times with great strength and in multitudes with their Horses and Armour And the old Articles of inquiry upon that Statute being made in the same Kings raigne and to be seen in the Statute-books tend onely to inquiry touching the keeping the peace as whether all men betwixt the age of fifteen and sixty be sworn to keepe the peace and whether they have weapons in their houses according to the quantity of their Lands and Goods for conservation of the peace according to the Statute And the Statute of 2. E. 3. cap. 6. renewes this Statute of 13. E. 1. in these words Item As to the keeping of the peace in time to come it is ordained and enacted That the Statutes made in time past with the Statute of Winchester shall be observed and kept in every point And strange it were to imagine that the wisdome of a Parliament in the matter of arming of the Subject made no greater or better provision against an Enemy then against a Theefe or a Rogue And it is not so proper to charge the Subject at all times in the same manner and proportions as in times of danger And lastly for further clearing this Our exposition of that Statute of 13. E 1. Wee say That although as Wee have already shewed the Commissions of Arrayes did from the time of making the Statute of 13. E. 1. frequently issue both before and since the Statute of 5. H. 4. yet none of those Commissions were regulated by the Statute of 13. E. 1. but either they were as commonly for arming them according to mens degrees abilities without mentioning the Statute of 13. E. 1. Or where any did expresse the quality and proportion of Armes to be found They varyed from the Statute of 13. E. 1. and appointed other kinde of Arms and differenced and proportioned the estates of those who were to finde Armes otherwise then is mentioned in that Statute And sometimes with an expresse Declaration that the Statute of 13. E. 1. was made for the conservation of the peace in a time of peace when there was no danger of a forraigne enemie And though some use might be made of those armes appointed by that Statute in time of danger as well as any other weapon yet the same was not that kind of armour which was principally intended as fitting for such defence as may appeare by the presidents above cited And the constant practice in all after ages for defence extraordinary hath ever been with other armes and after other Proportions as Wee beleeve will not be denyed by any man Wee come now to the Statute of 1. E. 3. whereupon the objection stands thus That the Statute of 13. E. 1. having made such particular assize of Arms as before for the kinds and proportions this Statute doth ordaine That no man from thenceforth shall be charged to arme himselfe otherwise then hee was wont in the time of the Kings Progenitors Meaning as the Declaration takes it for granted according to that former Statute of 13. E. 1. To this Wee shall give this answer That as Wee have proved before 13. E. 1. was never meant as of a provision for defence extraordinary and much lesse that the Statute of 1. E. 3. could intend any such thing And as the Penner of that Declaration cannot therein shew any expresse reference to that Statute of 13. E. 1. and can at the most but barely conjecture it so on the other side Wee shall out of the penning and otherwise upon surer grounds conclude the contrary For first in this case regularly if not necessarily where a later Statute in the substance and meaning thereof wholly depends upon a former and must have reference thereunto the Parliament of 1. E. 3. would have made mention of this Statute of 13. E. 1. as they did thereof the next yeare following when it was renued but for keeping of the peace Next in wisedome it was fitting if so be that they had intended a further re-establishment of the particularities of the kinds and proportions of armes mentioned in 13. E. 1. that when they had a former Statute so punctuall therein they should not have thus left us for a true understanding of their meaning to a generall enquirie of the particular assize used for armes in former times But on the contrary the Statute referring to the former usage in the times of the Kings Progenitors which