the Judges of any crime committed in that Court and no other inferiour Court as hath been proved at large Also this latter Statute of 6 H. 8. 6 Hen. 8. ca. 16. A stricter law then 5. R. 2. seemeth to conclude all Delinquents that have not Licence as is before mentioned although the occasion of their absence be great and urgent affaires even in Law and conscience satisfactory Now to deny unto the Parliament the dispensation of Justice against Offenders in this kinde as it is too apparent and withall to protect them from the censure of that high and great Court surely I say no more it is a violation of their Lawes and Rights unto them anciently belonging But that I may answer all Objections Object it is urged by the adverse party that their departure from the service of the Parliament was forced by tumults and disorders of people not without just feare and perill of their lives and therefore their absence not within either of the Statures before named but justifiable by the rules of all Law and Conscience Sol. To which I answer because it seemeth materiall that first it must be granted that those Members so departing were Summoned to returne to the Service of the Houses and their Answers especially of divers of the House of Peeres were to this purpose That by their duty of Allegiance they were bound to attend the Kings Person or that they were commanded to attend his Person and therefore they held themselves excusable which was in effect a plaine deniall divers of which Answers I have seene in print Now it must needs be inferred from hence and it plainely appeares to any man not devoid of reason That if there had been really any such danger or cause as is objected Nota. they would have inserted the same in their Answers and so reasonable and certaine an Argument of their innocency would not have been omitted as on the contrary so high and contumacious a defence would not have been returned such an affront and contempt of Justice that even a Court of Pye-powders would not have suffered Also see their Answers what they are their Allegiance is the ground of them as if their attendance on the Kings Person warranted them to doe injustice to violate the Lawes of these Statutes before named Is this their Allegiance to the King Is not the Subjects Allegiance confired to the Lawes Is not the very Etimology of the word derived from thence Legiantia Allegiance the Etymology quasi legis essentia therefore their answers not legall Their answer noâ— legall because they infringe the law viz. 5. R. 2 6. H. 8. Tumult what it is as also the Objection of being driven from the Parliament frivolous for then they would have made use of it in their answers Further to question the word Tumult afore mentioned doe numbers of people with Petitions no way disturbing the Peace make in Law a Tumult Certainely no likewise it appeares by undeniable proofe that some of them were sollicited away from Parliament by Letters therefore the former allegation is idle For the Kings absence from the Parliament in what condition it stands The Kings absence from the Parliament by the ancient law how farre justifiable I will offer you one of the ancient Lawes of that pious Prince Edward Sir named the Confessor whose Lawes the Kings of this Nation at their Coronation sweate to observe and keep the words are these rendred in English The King ought to be present at his Parliament unlesse he be hindred by sicknesse and then he ought to be in the same Towne where the Parliament is held and his sicknesse ought to be certified by twelve Members of the Parliament a Committee for that purpose of the Lords and Commons Here appeares no cause of his absence but sicknesse justifiable and of this he himselfe is not the Judge it must be certified as you have heard What not perill of his life may some say Is that no just cause of His absence You heare the Law I have nothing to say to questions It seemes in those dayes there were no such unworthy and dishonourable thoughts in the mindes of men as to doubt the security of Parliaments unto the Regall Person since in judgement of Law if Tumults or Disorders shall happen in the Common-wealth Parliaments are best able to suppâ—â—se them and to protect both King and pâ—ople from injury and wrong Now Parliaments are the bane of Princes as they are now to â—â—ed they are now Corasives when as you see formerly they were the onely curers of all Diseases in the Body Politique The King formerly not any where safe but here now the King in His owne judgement safe any where but here flying from them as from His enemy when as it is not possible he should finde any where that which he desireth but under God even with them peace and security Be not deceived Great Prince neither fly them that pursue you not in any Hostile manner The Parliament follow you with humble Declarations and Petitions for Peace you mistake their sweet Compellations put up your Sword into the Sheath and let Peace be in our dwellings and amongst us I have a little deviated I will returne unto my selfe and I finde the King still absent notwithstanding all that hath been spoken and justifying the same Indeed there is a Statute in the time of King Henry the 8 via 33. H. 8. cap. 21. 33. H. 8. ca. 21. by which in the Kings absence from Parliament His Assent by his Letters Patents under the Great Seale shall be sufficient Here it may be alledged Object that the Kings absence from Parliament is warranted by this Statute I answer Sol. This is nothing to make the ancient Law afore recited ineffectuall for his absence here upon this Law standeth as it did before this Act not touched or medled with by this Act and therefore sicknesse continues still a cause of absence of the Kings Person from his Parliament and no other and where he might legally justifie his absence before this Statute he may still doe the same and no otherwaies And although that the use now of late times hath been Vse of no force against a law Vi. infra that the first and last day of Parliament is sufficient yet that is but use which is of no force against a Law in being as I conceive Further His Assent by this Act is limited it is onely to Acts of Parliament and no other assent is warranted Note also that to dis-assent to any matter trans-acted in Parliament it giveth him no power at all Thus you see Ex libro de ordine Parlia Editi tempâ—re Edvardi filij Regis Ethelâ— redi the Kings absence from his Parliament how it stands by the ancient Law of which I have an extract as also by latter Law you have heard likewise the absence of the Members of the Houses debated But we will Argumenti
positive Lawes and to other because it is not the duty of the Subjects Allegiance but what is positive or in esse the other is not the duty of tâ—e Subject neitâ—er is it any Allegiance at all untill by Parliameâ—t it be so injoyned but tests in the iâ—teâ—im in nubibus or in consideration of Law therefore the llegall positive Allegiance viz that which is due by the positive Lawes â—â—ely is intended by this Statute If it were taken in the other sence in this Statute as it is plainely otherwise Nota. yet it would not advantage the other part All statutes penned in such generall words as this is intend onely the legall positive Allegiance as before but bring them a little nearer to the Parliament and their power and authority which they so much decline What shall we then say unto Armies of men thus illegally raised by the King viz. dirctely against all these positive Lawes formerly remembred Can we in Law or conscience aide or assist them By Law we cannot as you see then surely we cannot in conscience Humane lawes injoyned to be observed by Scripture the Law of this Land binding the conscience to obedience and the observance of these humane Lawes being so often in the holy Word of God Commanded and for this reason as I conceive these forces thus raised Rebells and Traitors not raised by lawfull authority are termed by a Declaration of Parliament Rebells and Traitors because not raised by lawfull authority and surely if Rebells and Traitors they are to be suppressed not assisted and that men may be Rebells and Traitors and decline from their duty of Allegiance although they follow the Kings Person in the Warres appeares by the foresaid Statute of 11. H. 7. ca 1. the words of the Statute are for defence of the King and the Land and therefore if against the Land as it must be Traitors though att nding the Kings Person in the Warres by 11. H. 7. ca. 8. if against the Body representative the Parliament it is Treason within thiâ— Law although they attend the Kings Person in the Wars and this is that Statute which his Majesty hath frequently made use of in divers printed Declarations of his whereby he would seeme to exempt all those that attend his Person in the warres from any impeachment but surely this Statute will not aide him for it is apparant by the Proviso of this Statute Provisâ—e Explanation of the Proviso that there is a declining from the duty of their Allegiancâ— although they follow the Kings Person in his warres otherwise the Proviso were meerely idle but to explaine it yet â—urther Proviso relates alwaies to the body of the Act in the judgement of the law The Proviso relates to the body of the Act the body of the Act is onely to exempt those that attend the Kings Person in the warres and doe him true and faithfull service for the defence of his Person and the Land Service done unto the King in defence of the land is the legall positive Allegiance within this Act. Here you see Allegiance is meant in the Proviso viz. the service done unto the King in defence of the Realme provided that none shall take benefit of this Act that shall decline from the duty of his or their Allegiance that is to say that shall not doe true and faithfull service unâ—o the King and the Land as is mentioned in the Act and the word None in the Proviso is plaine None relates to the body of the Act. No Traitor by law can have any benefit of law viz None that shall attend his Person in the warres shall take benefit of this Act if he shall decline from the duty of his Allegiance and in this sence it must be taken and in no other for future crimes it cannot extend unto other then mentioned in this Act since by Law they are made uncapable of the benefit of any Law if transgressors of the Law Frustra legis auxilium implorat This Proviso but explanatory qui in legem committit and therefore this Proviso idle if so understood unlesse you will tax a Parliament to be misconusant of the Lawes Further this Proviso as it seemes to me is but explanatory of the Act and was not absolutely necessary to be incerted This Allegiance upon this 〈◊〉 hath relation only to the positive law Vi. ante The subjects Allegiance unto the naturall capacity of the King in respect of the politick for certainely they had been included in the body of the Act as uncapable of benefit thereby if no such Proviso had been at all What need I say more the meaning of this Law is very well delivered by the Parliament in their Declaration concerning Hull Here I might touch and that not extravigantly upon the Allegiance Royall unto what capacity of the King it is due You see a man may decline from the duty of his Allegiance and yet follow the Kings Person therefore the Allegiance is not due unto the naturall Person of the King onely but it is due unto the naturall in respect of the politique capacity and that you see is the Judgement of this Parliament The Subjects Allegiance may be declined and yet the naturall Person of the King attended and withall note that in these times this is declaimed against as a Jesuiticall distinction and yet the judgement of a Parliament Object But it is further urged That the penalty of this Law is remitted and pardoned by the King Sol. I answer That the Kings pardon availeth not here Statute made pro bono publico cannot be by any non â—bstante dispensed withall for the Proviso expresly excludeth all men from benefit of this Act be it by the Kings Pardon or otherwise if they shall decline from the duty of their Allegiance and this being an Act for the service and defence of the Realme cannot be dispensed withall by any Non obstante in the Kings Pardon as it is to those that peâ—use the Lawes manifest I will yet crave further patience in the aforegoing particular in the arraying and arming of men and shew you how tender the Law is herein in a Statute in 1 Mar. 12. No Warlike appearance witâ—out authority of laâ— but pun shable I take it If an Assembly of men were made to doe any unlawfull Act as to throw downe Enclosures or the like and did not depart within a short time after Proclamation they were Ipso secto without any furthâ—â— Act done adjudged Relons by Law and to suffer death so tender is the Law of any Assembly especially in any Warlike manner to doe any unlawfull Act. Nay further No Warlike appearance wiâ—hout authority of laâ— but punishable it is a thing unlawfull for any men to Assemble themselves together or to goe or ride armed in a Warlike manner although no evill intention appeares unlesse they doe it by lawfull authority or command to goe or ride armed
in Fayres or Markers is the forfeiture of their Armour and theâ—r boâ—y imprisonable by 2. E. 3. ca. 3. 2 E. 3. ca. 3. and yet to evill intention appeares and so are other Statures that no man shall goe or ride armed upon penalties of Fire and Imprisonment except the Kings Ministers in doing their Office and I take it these Statutes last mentioned The King â—â—niall servants are here onely intended his â—â—nisters of Justice are specially here named by themselve Vi. infra though ancient are still in force Indeed the Kings servants are there spoken of in one of these Statutes and withall there are these words subsequent in presence of the King so that the Kings servants in his preseâ—â—e may goe or ride arâ—ed but those either for their paucity were not then nor are now considerable or otherwise they were inabled in those times of danger for the preservation of the Peace and the Kings Person against disturbers thereof By the ancient Law and Custome of the Parliament a Proclamation ought to be made in Westminster Hall That no man upon paine to lose all that he hath should during the Parliament in London Westminster or the Suburbs thereof weare any privie Coate of Plate or goe armed and the reason hereof was That the Parliament should not be disturbed nor the Members thereof who are to attend the arduous and urgent businesse of the Church and Common Wealth should not be withdrawne from their service Thus you see how tender the Law is of any Warlike appearance What shall we then thinke of great numbers of men in a Warlike Assembly armed not in London Westminster and the Suburbs thereof but even at the doores of the Parliament environing the House of Commons as it was since the Commencement of this Parliament Object But it is urged That the King is compelled to raise an Army for his owne necessary defence his Royall Person Honour and Estate all which are now endangered and exposed even to ruine and destruction Sol. Admit the truth of these aspertions unquestionable Who shall be Judges of these dangers and the inevitable necessity of raising an Army Surely no particular or private persons No particular person The Clergy no Judge no not the Clergy themselves who have in these unhappy times some few onely excepted broken downe the wall of partition and separation I meane have intruded upon the Civill Government and have obtruded upon the People in their Writings and Sermons those Positions and Maximes which admitted would shake if not ruine the very basis and foundation of this famous Government The King nâ—â—udge or at least no sole Judge Many they are which I could here mention but I conceive it done out of ignorance being not willing to discover errours as I hope not wilfully committed Nay the King himselfe cannot be the sole Judge so hath it been declared and adjudged in a like Case the very same in Law and reason this Parliament in a full Session when the King and all the Members were then present in M. Hampdens Case concerning Ship-money where the Opinion of the Judges The King no sole Judge of the danger of the Realme together with the Judgement given in the Exchequer Chamber That the King was sole Judge of the danger of the Kingdom of suddaine invasion of Enemies or the like and might compell his subjects to provide ships for so long time as he should thinke meet whereby the subject was forced to contribute great summes of money was reversed damned and sentenced as erronious and illegall destructive to the liberty of the subject and contrary to the Fundamentall Lawes of this Realme Now if any man shall say Object It is for the defence of the Kings Person and that even the Lawes of Nature and reason warrant and surely the Lawes of this Kingdome repugne not the Lawes of Nature and reason Sol. I answer that the Lawes of this Realme provide sufficiently for the Person of the King and for the security thereof it being high Treason by Law to compasse or imagine by any overt Act the destruction of the King although not effected not so in the Case of the subject Further if you consider him according to the Law of Nature then the case is no more but as the Case of a private man or person who may Vim vi repellere even by 2 multitude of persons King intends the politicke capacity not the naturall But our Inquisition at this time is not in this capacity but our question is of a King constituted by Law and the policy of man and therein that capacity he can doe no more then what the Law doth warrant Id Rex potest quod de jure potest and therefore you see an end of this objection Then to revert to our Discourse by Law it seemes the Parliament are the Eyes of the Body Politick The King no Judge or no sole Judge in Parliament by the law of inferiour Courts proved and are the onely great Counsell of the King and Kingdome whereof the King is the head and they are to Judge of all dangers to the King or Realme and the King himselfe is not the Judge and we see it is so in all other Courts of Justice the King Judgeth not nor medleth at all either in matters concerning himselfe or any other there being Judges by Law appointed for that purpose by whose Wisedom the King seeth discerneth discovereth redresseth all errours grievances or injuries private or publike particular or generall how then can the King be sole Judge in this Case of the necessity of raising an Army although it were in his owne just defence without his Great and High Court of Parliament approve of the same Is not this a violation of the Law and Government established Ought not they at leastwise to concurre in judgement before any such Forces or Armies of men can be raised and this onely by the Law of inferiour Courts The consideration hereof being of such high concernement that the proceedings and actions of all other matters seeme in comparison hereof not at all materiall nay if the King might be sole Judge in this Case although the danger reall and just this mischiefe and inconvenience would follow Great mischiefe and inconvenience of the King should be sole Judge viz. of the danger of the Realme That the King in an Act of such high consequence for the generall good contrary to his actions and proceedings in all other Courts even in matters of least moment as is before mentioned might upon surmise or suggestion of danger to his Royall Person without any further consultation with his high Court of Parliament raise and maintaine an Army of men how numerous soever and justifie the same as warranted by the Lawes of this Realme to the great impoverishment of the subject and not without great perill that I say no more even to the very Principles of this well compacted government Shall we imagine such a
power and authority by Law vested in the King in derogation of his high Court of Parliament as makes the rules of Law and Justice meerely Arbitrary as in those particulars afore specified we must needs grant and yet in inferiour Courts the same rules in Arbitrary Government no where warranted or allowed but contrary wise their proceedings obliging both King and people to a mutuall observance by a legall power and authority to that purpose setled in them This were repugnant even to sence Now to summe up this point if the King cannot leavie or maintaine any Forces by Sea or Land as is formerly proved though for defence of the Realme or his Person upon his owne Judgement or apprehension of danger What shall we then say to this effusion of bloud the Authors and fomenters of this intestine Warre shall they be protected Surely at some mens hands this bloud will be required and though they may here escape yet righteous judgement must be expected hereafter Papists inabled nay compelled to beare Armes contrary to the lawes viz. 3. Jacobi 5. Also this matter seemeth more to be aggravated since in this late great and numerous Army of the King those persons who are prohibited by Law to come within tenne miles of the Court disabled by Law to beare Armes within this Kingdome contrary to the Kings owne solemne Protestations made unto his Parliament are enabled nay commanded to beare Armes to the destruction of the Kings subjects I meane the Popish Party in this Kingdome whose doctrine and practises both to King and State in most execrable Treasons and impious Conspiracies hatefull both to God and man are sufficiently manifest to all the world and need not here to be remembred Now there being such a cloud of Witnesses as is afore specified Common Law Stat. judgement of this Parliament proving the Armies Illegall viz. the Common Law the Statute Law the Judgement of this Parliament in Master Hampdens Case the very same in Law and reason convincing any capacity in the certainty of this truth that these Armies now maintained by the King are not warranted by Law What shall I say more yea what shall we thinke of this Commission of Array Commission of Array destructive of Parliaments upheld by our opposites What is this likewise but a meere usurpation a plaine violation of the Lawes and what would follow if this doctrine should be admitted but a finall dissolution of Parliaments For what would they then serve for if Armies of men may contrary to the positive Lawes be raised without them They would be at the best but as the tyrannicall Bishop of Rome formerly boasted Puteus inexhaustus an ever springing Fountaine to satisfie the ambitious desires of the mighty with the riches and wealth of the people nay peradventure Aides Taxes and Impositions would be had at pleasure and the people by force compelled to slavish obedience as we have found by sad experience too dearely bought in a branch of these Dominions the unfortunate Kingdome of Ireland where the insolencie of the Souldiers was such yea even in the times of Peace in the time of the late Earle of Strafford that the Lawes were sleighted and trodden under foot and the Paper Decrees of the Castle Chamber put in execution by these Agents in Armes forcing the poore subject to obey whatsoever was in this wicked and illegall manner commanded what difference now betwixt the Turkish Government and this new devised Monarchy of these Dreamers the lives and estates of all men being subjugated to misery and inevitable destruction but God in his good time discover these evill instruments and bring them to Justice who labour to involue so great a Prince into inextricable errour and calamity I promised moderation therefore I will say no more but will divert my meditations to the period of this discourse as thinking I have satisfied mine owne conscience it not others in so large a debate hereof Object There is one great Objection made by the adverse part which if answered this particular is satisfied And that is By what authority are the forces of the Parliament raised Seeme they not as illegall as unwarrantable Sol. To which I answer That the Parliament themselves in their Declarations which I have seene make it onely on their part defensive there being an Army intended against them full foure yeares since the Army raised against the Scots and afterwards for this purpose implyed to awe this Parliament and to force them to consent unto such Articles framed by evill persons touching the Government of this Kingdome which appeares by the Depositions of divers persons of note and quality annexed to a Remonstrance of Parliament 19. Maii 1642. which sure was long before an Army raised by the Parliament or thought upon the King being then present at Parliament and I will not say it was by his privity or knowledge Onely thus much I will say That this Act was alone sufficient to breed jealousies and feares in the Parliament and to provide further for their defence and security Afterwards this was increased by the Kings comming to the House of Commons in that unusuall manner to demand the Members affrighting the Assembly there present who upon request were denyed a Guard Afterwards his Majesty at Yorke at Nottingham had a considerable Army of men to the number of foure or five thousand as I have credibly heard by those that were then there present and all this while no Army of the Parliament appearing that I did heare of only speeches to that purpose Now upon all these proceedings the Parliament for their owne defence the Kings Royall Person and Authority the defence of the rights and liberties of the Subject raised an Army under the command of his Excellency Rob. Earle of Essex which whether or no defensive or justly done I leave it to the world to judge upon that which hath been formerly spoken But to make a more full answer and to square my course in these Treaties by the positive Lawes to stop the mouthes of clamorous people The raising of Forces by the Parliament justified as a Court of Justice The Parliament and either of the Houses must be admitted to have supreme power of Judicature without the Kings Personall presence as the Rolls and judiciall proceedings thereof sufficiently manifest as is formerly spoken and if so then they have power to Summon Censure and judge all Delinquents yea force them to submit to the Justice of that high Court upon contempt by enjoyning Posse commitatus yea Posse Regni to execute their Commands against all disobedient persons unto the Justice and Government of this Kingdome and this meerely by the Law of inferiour Courts as I have formerly remembred therefore this shall be sufficient Object Legislative power just There is one thing that scruples the mindes of Malignants much and that is That the Parliament have hitherto proceeded by a meere legislative power and not by the positive Lawes and
Law are not things so considerable as the Militia of the Kingdome which is a thing permanent and abiding and shall have a constant existence so long as England shall continue a Nation of people and therefore the Law hath not taken such speciall care for this The Militia of the Navie depends upon the Militia of the Land as for the Militia But to give you a full answer and not to keepe you in suspence What is the Navie Royall without the Militia How are the Seas defended unlesse the Militia of the Land be designed for that purpose Goodly materialls without any hand to move them for the publike service fit for prospect onely not for use therefore you cannot consider them without the Militia of the Land to guard them The Navie without the Militia of the land to guard it not considerable unlesse they be furnished with men for publike imployment Why then still all depends upon the Militia of the Land and you see by the former discourse how that is setled the King cannot dispose of it otherwise then the Law hath appointed it nay it seemeth that the positive Militia is not in him personally but subordinately in his Ministers and so it is said in Law to be in the King Thus you see an end of this particular the King may build Ships but he cannot make them otherwise then as a livelesse structure unusefull without the Militia But to inlarge my selfe a little further on this particular it appeareth that the Navie that is to say the disposition of men Since this Act some Ordinances for the Navie noâ— Act or statute necessary for that service is not in the King but Parliament who made a temporary Act or Statute since the Parliament began enabling the Lord Admirall for the time being to imprest raise and leavie such number of men necessary for the service of the Navie Ratio why the Militia of the Navie must rest in the power of Parliament Et nota as shall be requisite for that expedition Hence it may plainly be collected that since this Act is expired the Militia for the Navie must of necessity rest in the power of Parliament since the King by implicite consent in enacting this Law so conceived for otherwise he would not sure have assented unto such an Act so derogatory to his Regality if the Law had not been so at that time but he would have authorized the Lord Admirall by Commission under the great Seale and so no Act of Parliament had been necessary Object Further if any man shall object and say That the power of the Militia for the Navie was in the King before this Act and that was the cause of making this statute but temporary which also being expired the Militia of the Navie is revested in the King againe Sol. The answer of this will be but Actum peragere the Militia of the Navie depending upon the Militia of the Land before this Act and therefore the Militia of the Land debated as formerly you have heard at large both that generall and absolute of the Militia as also that which is limited by the positive lawes there needs no further answer The Militia of the Navie in law the land militia Further it is evident to me upon this very Act without any retrospect to what hath been formerly spoken that the Militia of the Land the great matter now controverted must of necessity rest in Parliament for it is parcell of the Militia of the Kingdome Sea and land incorporated in point of dominion if the militia of the sea pertaine to the Parliament so must also the militia of the land unlesse you divide the power of the militia the Militia of the Sea is also the Militia of the Kingdome yea of the Land it selfe for the Sea and Land are incorporated by Law in point of Dominion and made one body subject to one head The Militia therefore of the Kingdome and the Militia of the Land are all one in Law and in the Militia of the Kingdome you must include the Militia of the Navie since the kingdom in judgement of law includeth both Sea and Land Or otherwise if we shall abandon all reason in the Exposition of this Statute it must at least be granted Nota. Division of the power of the militia dangerous to government that the Militia of the Navie is in the power of the Parliament even by the implicite judgement of the King and his great Counsell and admit a fraction or division of this great power so dangerous to Government and tending much to the weakening and enervating the great strength of this Kingdom I mean the Militia thereof and be occasion of perpetuall intestine wars in this Nation a position so inconsistent with Government and dishonourable to the Wisedome of this State that I thinke there needs no further confutation of it The Forts and Magazines surely are as attendants and adjuncts unto the Militia The militia of the Forts and Castles and that common reason teacheth the one to secure the Ammunition pertaining to the Militia and as a receptacle for the same commonly called the Store-houses for Armes the other to imploy the Militia in for the defence of the Land against the enemy Ratiâ— why the Forts and Castles dâ—fensible pertaine not to the King for surely the Forts and Castles defensible belong not unto the King in right for one speciall reason because if they should belong unto the King then you must grant him a power and right in the Militia to be imployed in the service of these Forts and Castles for to what purpose hath the King these if he cannot command the Militia of the Kingdome to defend them they are then in judgement of Law and reason houses or Princely Pallaces onely nor Forts or Castles so that you see in conclusion by Law and Reason we are come to this The right and power of the Militia of the Kingdome rules all Forts Ships Navie Magazines Castles all depend upon this therefore I hope I have spoken of these particulars sufficiently Object It may be objected that Sir Edw. Coke saith in his Institutes upon Littleton That no man can build a Castle defensible or of Military strength without leave of the King hence it may be inferred Sol. the King may build and consequently hold such a Castle or place of strength The ancient Common Law for the land Militia rules the Militia for the Forts and Castles but what of this he hath nothing to doe with the Militia this notwithstanding And if it should be granted otherwise yet he cannot defend it with any other Militia then of those persons that are hereunto especially bound by Tenure or Contract neither can any be forced out of their Shires contrary to the Law to defend this place of strength or Castle also that the King may build and hold a Castle defencible may thus be intended The Sheriffes possession the Kings
interruption or their representative Body for it cannot appeare that the King hath by disposition of them time out of minde gained any inheritance in them in the right as we say but that there have been Claimes and disturbances by the Subject or their representative Body and then usage necessarily is of no force Object Before I conclude this particular I will answer one Objection that happily may be made touching the Militia and that is this Pleas of the Crowne f. 9. that Sir Edw. Coke saith That no man can leavie Warre within the Realme without authority from the King for to him it onely belongeth Sol. I answer because the authority is great that his legall or politick capacity may be very well here intended Authority from the King intendâ— his legall or politick capacity not his personall or naturall and not his personall and so the authority of every Court of Justice is the Kings authority the words De mandato nostro in the Writ of Melius inquirendum upon a former Office defective are intended not the Kings Personall Command but his Command by Writ issuing out of a Court of Justice so the authority of the King is in this place meant his legall authority not his Personall which every Court of Justice specially upon Record is invested withall In a literall sence the Sheriffes aâ—thority is the Kings authority Also the subordinate authority of the Sheriffe as also of every Court of Justice is the Kings authority even in the literall sence for the Sheriffe and Judges of the Court of Justice are authorized by â—he Kings Letters Patents Also they that have their Authority by Acts of Parliament as the Sheriffe hath have their authority from the King No man c. purport thus much no man of hiâ— own private authority Legall authority the Kings authority for are not all Acts perfected and confirmed with the Royall assent So that these words before specified viz. no man c. purport plainly thus much No man of his owne private authority without legall authority which is the Kings imediate authority can leavie War within this Realme Nota. If you should make other construction you nullifie the positive Lawes and even the legal course of Justice and Government So that we may safely conclude I hope upon the premisses that the Subjects right and consequently of their representative Body to dispose of the Militia and of the great Offices of the Kingdome remaineth yet undoubted even at this day These things have been judiciously debated and at large by a learned gentleman very well knowne Note that all the statutes touching this high point of the Militia are warily and cautiously penned not one law that in expresse words or by any sound Collection or inferences settles it in the King personally those statutes that the King make use of and which mention tâ—e military service due unto the Regall Dignity are in generall termes and may very well be with relation to the positive lawes precedent as 11 H 7. ca. 1.5 H. 4. 1 E. 3. ca. 5. None of them can be intended of the generall or absolute power of the militia but of that part of the Militia that is by the positive lawes limited for if otherwise you must by such construction nullifie all the positive lawes proceedâ—ng Nota. Vid. ante therefore of this sufficient You that are now learned and wise be not seduced with errour pause a while and consider with moderation what is become of the Regall power viz. the Kings personall power such as you would have it in the Militia of this kingdome That which the King will not part withall no not for any time be it to his Wife or Children so neare and deare it is unto him and of so high consequence as he professeth There are but two branches of the Militia the one generall and more absolute the other speciall and limited by the positive Lawes as you have heard For the generall and more absolute power over the Militia it is apparent to be inherent of ancient right in the high Court of Parliament onely I thinke the premisses duly considered no rationall man will deny it for the other part of the Militia limited by the positive Lawes you have heard it is vested in the Kings Ministers the Judges and great Officers of Justice by the positive Lawes not in the King personally considered What is then become of the great Commission of Array which clearely claimeth and useth both these powers of the Militia What are Armies of men raised by these illegall meanes You have heard formerly in this discourse what they are I should be sorry to repeat it The supreme Moderator of all things will one day Judge these exorbitancies I will say no more Object There is one yet great Objection of those that are curious and hard to be satisfied it is somewhat darke and Enigmaticall to the ignorant and that is That Armes are taken up against the King by the Parliament they leavie War against his Person an Act in it selfe impious and by the Divine or Humane Law in no wise warranted Sol. To which I answer That this Allegation is false and untrue there is no force or violence offered or intended to be offered against the person of the King we conceive his person onely free from the Sword By the Divine law the regall person differenced from the regall power but if you take his person for his power raised by him coagmentative there we differ from you for by the Law Divine whether his person and power raised by him illegally be together confounded and not distinguished or whether Tyranny or abused Authority shall be said to be the Ordinance of God and so not to be disobeyed I will not meddle in the decision thereof though I take it cleare they shall not for goe to the very Etymology of the word Ordinance mentioned frequently in the Scriptures of God and so much insisted upon by the other part that it ought not to be resisted it is plaine it is derived Ab ordine from order wisedome and judgement the shadowes of the Divine essence which is an eternall Law of admirable wisedome even to it selfe and is the Primum mobile and originall of all Order and Law to the Creature Now in Tyranny and abused Authority there is nothing but folly and madnesse as I may so say the authours of disorder and confusion and surely if the Lawes of man be called Ordinances for this reason before mentioned What shall we thinke of the Law of God Whatsoever is by this Law appointed is wisedome and judgement in the abstract 1 Sam ca. 8. That place of Scripture which you wrest by mis-interpretation for the purposes warrants no such matter This shall be the manner of the Kings saith Samuel to the people They shall take your Sonnes and your Daughters they shall take your Fields your Vineyards and give them to their servants Render the
difference His power not so viz. his illegall power They may attend the Kings person in the Warres and yet Traitors by Law his Person secured his power not so And although the King pardoneth this Offence upon this Statute as it appeareth formerly he hath done yet surely this is not effectuall for he is disabled by Act of Parliament to take benefit of this act and therefore the King cannot inable him as upon 31. Vi. ante f. Eli. in case of simony if the King present the same person simonaically to the same Benefice and withall in his presentation there is a speciall Non obstante yet this will not availe Also I conceive Impeachment in the high Court of Parliament disables the Kings pardon Nota. if he be Impeached in the high Court of Parliament upon this Act as he may be and not by Indictment at Common Law then surely the Kings Pardon will not aide him I have been somewhat more prolixe upon this Statute of 11 H. 7. ca. 1. because it is much insisted upon by the adverse part Give me leave to impart unto you some speciall observations upon these Statutes of E. 3. before mentioned viz. That Justice shall nor be delayed for the great or little Seale of the King Three particulars worthy the consideration branch themselves out of these Lawes naturally Note the contrary held in Cambridge in the Case between the Archebishop of Canterbury Chancellor viz. That the King sitting in Cathedra personally though he might erre in circumstance or the like yet in point of judgement he could not erre 11 Car. aut eo circiter The King may erre in judgement proved by the law positive First That the King may erre in his judgement his Commands may be illegall and contrary to Law Secondly That Armies of men or men in Armes may be raised by the King without authority of Law Thirdly That these forces thus raised by the King are to be suppressed and punished as Delinquents to the Lawes and Government notwithstanding the Kings Command where you may likewise evidently perceive a difference in Law betwixt the Kings Person and his Power I will debate these three partâ—culars briefly The King may erre in his judgement he may Command contrary to Law yea that his verball protestations may be otherwise in private to the Judge in publike to the world the Judge is not bound to beleeve his verball protestations though under Seale he is to execute the Law and not to delay right and justice Note here the command of the Law Nota. the command of the King the command of the Law to be obeyed not the King note also here the supreme power of the Law before spoken of Object Our Malignants cry out and say Is not the King to be beleeved He hath protested upon the holy Sacrament to the world that he will preserve our Religion Lawes and Liberties yea that he will not violate the Lawes we are Rebells and not Subjects if we should discredit the protestations yea the Oathes of our Prince I answer Sol. The Judgement of a Parliament is otherwise he may erre his Commands may be illegall and the Judge is not to regard any protestations that are otherwise but to execute the Law We are good subjects notwithstanding this false aspersion The King may raise Armies of men contrary to law for the second particular he may raise Armies of men against Law that you see plainly for if he send this Message to obstruct the course of Justice by numbers of Armed men are not these men illegally armed For it appeares they come to oppose the Law a great offence by these Lawes evident enough Here likewise appeares the truth of that Stature of 11 H. 7 afore named so much mis-interpreted by evill Counsell about his Majesty such Counsell by which his Majesty is seduced in his heart and misled Of what Counsell the law taketh notice of of which Counsell the Law taketh no notice at all whilst the wisedome of the great Counsell of the King and Kingdome so by Law deemed and determined even in the interpretation of this Law and many others is neglected and not regarded for these numbers of armed men comming with the Kings Seale to stay Justice yea though the King be attended by them in Armes are capitall Offenders and Traitors and so to be certainly pronounced if they shall forceably attempt to execute this Regall Command though the Kings person be attended by them What speakes then the Act of 11 H. 7. but what former Statutes have said The Allegiance of the Subject may be declined and yet the Kings person followed in the Warres for the Regall Warres may be unjust upon all these Statutes and so it is cleare to any rationall man I am sorry to unfold these hidden and secret Mysteries of the Law thus farre for I doe unfainedly honour the King but Amicus Socrates anicus Plato sed magis amica veritas For the third particular that the Judges are to suppresse this illegall power I need not much trouble you withall for otherwise the words of these Statutes were idle and illusory Regall forces not warranted by law are clearely to be supprest by these lawes how could the Judge proceed to Judgement if these men that come to stay the course of Justice were not hindered in the execution of this illegall Command The sence of the Law to be thus upon these Statutes he that runneth may read I intended no more but by way of supposion but in respect that application is necessary in these distracted times Application Nota. and usefull in all Discourse in regard that our opposites will say and clamour too That none of these Lawes are in question there is no violation of them therefore you shall see that in our unhappy times all these afore recited particulars are verified The King doth erre in his Judgement his Commands are contrary to Law witnesse the Kings Command to apprehend the Members of the House of Commons contrary to their Lawes and Priviledges and to try them upon supposed Crimes elsewhere yea his Majesty himselfe came in Person into the House of Commons and Demanded or Commanded delivery of them The illegall Commission of Array so often issuing forth a great oppression to the people whereby he armeth thousands of men at this day contrary to Law and Justice the King claiming no other power to Array his people or Arme them by his owne Declarations in print but which depends upon the Statute of 5 H. 4. before remembred and that Statute is not in force as you may perceive in this Treatise formerly What need I say more Nota. Commissions have been sent under the great Seale to Array the City of London and other places of this Kingdome to take up Armes against the Judges of that high Court of Parliament to hinder Justice and Judgement as these statutes afore mention Shall not these Judges proceed to doe right
I answer Sol. The opposite power or faction hath been for many Ages prevalent and where the regall Power hath gained from the the Subject it is hard and with much difficulty to be reduced notwithstanding there havâ— not wanted in all Ages Champions and Assertors of these truths Tempore R. 2. H. 4 Therninge chiefe Justice nostrâ— tempore Crooke Hâ—tton Weston c. Illustre Parliamentum nunc apud Westminist yea even in our owne times there have been Propugnatores acerrimi Witnesse the Case of Mr. Hampden formerly remembred in the damning of which Judgement I thinke all these illegalities appeare which had it stood in force property in Estates had been a meere nullity yea the Axe was laid to the very root the subversion of Justice and Government Nota. yea your high Court of Parliament had been of no use for the Subject since upon the Kings owne personall judgement and opinion Viz. by thae judgement for ought that appeares otherwise for he that was the sole Judge of the danger of the Kingdome might have imposed what Taxes he pleased upon his People and upon refusall have inforced the paiment thereof a slavish and barbarous judgement nullifying upon the point all the positive Lawes of this Kingdome and making the Government it selfe meerely Arbitrary Preâ—ogative I should likewise here give you a touch of the Kings Prerogatives here as pertinent to this former Discourse for some may say The Liberties of the Subject are much insisted upon here but where are the Kings Rights and Prerogatives hath he none at all Therefore to omit the numerous Prerogatives of the King partly mentioned in that ancient Statute of Prerogativa Regis or dispersed in the legall Records or Annals which to present unto you would be too great a labour and needlesse 17 E. 2. Devant Ante diem clauso componet vesper Olympâ— Wardships Liveries Primer-seisin Marriages reliefe fines Pâ—â—â—aliener Customes Mines Wrecks Treasure trove Escheates Forfeitures cum multis aliis c rights and prerogatives done al Roy pur defend soy mesme son Realme of great benefit to the Crowne and the respect of these the subject to be free from Taxes and Impositions Definition of the Prerogative Rules restrictive of the Prerogative I will onely in a way compendiary shadow them unto you by their rules and restrictions which like the skilfull Pilot steere the course of this great Ship the Royall Prerogatives in the turbulent seas of humane affaires therefore in the first place note that the Kings Rights and Prerogatives are differenced in Law his Prerogatives are onely incident to the Crowne his Prerogatives are his rights but not â—onvâ—â—so The definition of a Prerogative is a power preheminence or priviledge which the King hath over and above other persons and above the ordinary course of Law in the Subjects case in right of his Crowne his Prerogatives are either personall or by reason of his possessions or having relation to both All of them have these restrictions they hold not in any thing injurious to the Subject they must be by prescription oâ— usage beyond all memory to the contrary no Prerogative can Commence at this day without authority of Parliament To give you some instances Basketviles case sâ—venth report The King hath title by Laps to present to a Church he suffereth a Presentation the Clerke is inducted and dyes now the Patron shall present not the King and although the Prerogative be that no laches or negligence shall be impured to the King Nullum tempus occurrit Regi faith the Statute yet laches here shall be imputed or otherwise the subject should be injured in his right the King had but onely the first or next presentation given him by Law therefore he shall not have the second Viz. By Writ certif otherwise Perpaâ—â—ll or letters act of force The King may take a man into his protection by his Prerogative to free him from Suit and molestation if he be imployed in the Kings service and so legally certified but he cannot protect him that is in â—aâ—â—â—tion or against whom an Execution is to be granted at the Suit of the Subject because that would be tortious to the Subject and dispossesse him of that interest which the Law hath vested in him Royall Proclamation a Prerogative He hath a great Prerogative indeed viz. to make Proclamations Sub pena which no Subject can doe but this Proclamation must be in supplement or Declaration of a Law already in being not in derogation of any Law established nay I conceive he cannot command any thing by Proclamation at least Sub pena it there be no Law in force to warrant it although in this particular his Proclamation be in nature of a Law remediall preventing some great mischiefe at present by no positive Law redressed What shall we then thinke of those frequent Proclamations of late times denouncing men Traitors before the Law hath so adjudged them contrary to the knowne rules of Justice yea men the Members of Parliament which cannot be legally judged Traitors but by the Justice of that high Court as formerly you have heard yea divers others also no waies sentenced I assure my selfe in any legall way so to be To the second rule or restriction of the Prerogative I need say little authorities are so plentifull If Lands come unto the King by Purchase in these he hath no Prerogative as in those he holdeth Jure coronae by great antiqui y. The King hath no Prerogative in the Militia Nota. These concerning the Militia the negative voyce in Parliament cannot be Prerogative they are not within these rules or limitations for if the Prerogative should be of force for the Militia it would be injurious to the Subject it should also commence by usage within memory contrary to the Statute of 28 E. 1. 25 E. 3. 4. H. 4. 13. c. Vid. ante yea to other more moderne Lawes So likewise the negative voice in Parliament it would not onely be injurious to the Subject but even to the Lawes and Government it selfe Mag. Char. ca. 29. making them all meerely Arbitrary yea contrary to Statute Law as some good opinion hath been Thus you have a briefe view of the Prerogatives rather shewing you what they are not then what they are which I was moved unto for the satisfaction of those who have not so deep insight into the Lawes Perpaucos arbusta juvant humilesque myricae And now I have passed through the enemies Quarters that is to say the strength of their Positions and Assertions by which they have misled a great party of this Kingdome I will a little breath and deliver unto you the summe of all and run over the heads of their Principles Their first The materiall cause of Parliament as you may see in the beginning of this Treatise strikes at the root and branch of Parliaments the materiall cause thereof that is the
Members of either Houses sweepes them all away from the service of the Common Wealth makes that renowned Assembly a meere desolate structure Formall causes of Parliaments The Kings negative voice in the next place as one blow takes away the formall cause of Parliaments that is to say the Laws and Government he is by this Doctrine become the Legislator onely the Members the Lords and Commons are but inconsiderable persons they fill up roomes like Pageants for shew onely they out of whose mouthes did flow the Oracles of wisedome are not now so to be reputed the Kings voice now is a Law at least if he so please no law shall be enacted the concurrence of the Prince in establishing any Law be it never so necessary is now but a politicke mercy or a mercifull policy as some write not without great perill to be altered but simply to binde the Prince to ratifie or confirme any Law is repugnant to Monarchy Me thinkes I see this great Body Politick being desperately wounded with illegall pressures ready to expire call for her Phisitians to minister wholsome Medicines unto her Alas they cannot come they are slaire with the Sword they are imprisoned they stand at the Seat of Judgement if not capitall The Phisick that should be given unto her Nota. those Cordiall and Medicinall laws for â—he restitution of health see what is likewâ—se become of them This little worme at the root of Government a negative voice devoures all this sweet smelling and amiable Rose hath at the root a Worme which consumeth all whatsoever affordeth delight or comfort Quid delubra juvant est mollis flama medullas What doe the high towred conceits of Parliaments availe this soft fire consumeth by degrees Quod non violento synus Aestu ex'unt That which the great combustions the rage of fire and sword could not accomplish it wasteth thy very marrow and spirits I meane the foule enlivening Lawes but this onely by way of supposition Thus you see the Tree by its fruit The efficient and finall causes of Parliaments we will joyne together Efficient cause of Parliaments the efficient cause of calling Parliaments is the urgent affaires of the Kingdome as the words of the Writ are for the calling of Parliaments not the issuing of the Writ by the King that is onely instrumentall and you may see by the ancient Law of this Land Parliaments are to be called so often as need shall require 4 E. 3. 14. 36. E. 3. 10. by two Statutes in the Raigne of Edw. 3. Parliaments are to be holden once in every yeare and oftner if need shall be Statutes for ought that I know yet in force With what face then can these stupid ignorant Advocates on the other part proclaime to the world the passing of this Bill for Trienniall Parliaments an Act of transcendent grace and favour when you see it is an Act of right and justice to call them once every yeare yea oftner if need shall require Object But me thinkes I heare it whispered Thâ— this Act for trienniall-Trienniall-Parliaments is an Act of speciall grace and favour notwithstanding any thing yet spoken as appeares by the very words of the Act for by this Statute it is provided That in case the King shall not issue forth Writs for the calling of Parliaments within the time prefixed by the Act that then every County and Barrough shall have power to proceed to election of their Knights and Burgessâ—s in such manner as the Act hath appointed Also it appeareth further that this Sâ—ssion of Parliament so to be called shall continue for the space of fifty daies without any power in the King to dissolve it Not calling Parliaments or when called the power of dissolution no Prerogative because against these statutes Vi. Devant in le prerogative Parliaments to be called without the King yea when called not to be dissolved by him for such a time Sure Regall Prerogatives conferred on the Subject I answer Even as the Sunne disperseth the mists of the night so in the presence of truth all these foggy vapours of errour will suddainely vanish Sol. for as to the first the calling of Parliaments doth it not appeare that they are to be holden once every yeare yea oftner if need shall be by two ancient Statutes yet in force Nota. Which Statutes amongst other good Lawes the King at his Coronation sweareth to observe and keepe How can Parliament be holden if not called therefore the King is bound of right to call them For the second That they shall not be dissolved for fifty daies by the King I answer Parols font plea as the Lawyers say Are not the words Parliaments shall be holden once in every yeare Holding of Parliaments implies continuance of them Is the dissolution of Parliaments a holding of them within the letter or sence of either of these Lawes Nay further I say Nota. They shall be holden that is to say By the ancient law of Edward the Confessor the Parliament ought not to be determined before every bill put in to be discussed 〈◊〉 for difficulty adjourned otherwise c. Finall cause of Parliament continued not for fifty daies but for fifty yeares for ought that I know within the very words of either of these Lawes if the affaires of the Kingdome shall so require for otherwise they are not holden Cum effectu as these Statutes intend plainly to any mans judgement that is rationall Thus you see an end a dissolution of these malignant Objections but no dissolution of Parliaments I hasten the finall cause of Parliaments is to make good lawes to redresse grievances to procure peace but alas the Dove brings not to us the Olive branch of Peace the voice af the Tirtle is not heard in our Land but the waters and inundations are increased so high that they have even drowned the Arke of God the Peace of God both in Church and Common Wealth the urgent affaires of the Kingdome are laid aside Me thinks the answer of Jehu in the Scripture is very pertinent to our purpose No peace so long as sinne aboundeth What hast thou to doe with peace turne thee behind me What peace so long as thy abhominations continue and are so many The bloud of so many of the Saints shed and spilt upon the ground doth cry for vengeance and the wrath of God is incensed against us Note these particulars Observe judicious Reader from this precedent discourse these few particulars apparent and unanswerable and as the very minde of the Author of this worke reflect and contemplate thereupon The first is That the root and originall of all these troubles was the Kings disserting the Houses of Parliament under pretence of Tumult and in security of his Person but the truth is evident enough it was because he could not prevaile in that evill Counsell which then was given him upon suggestion of I know not what crimes to take
the the same let him Discendere in arenam I heartily desire that by the same rules of Law and Justice the folly of this worke may be convinced and that with meeknesse and moderation by the touch-stone of truth viz. the positive Lawes that those that sit in darknesse may be enlightned let no man goe about to hew it in pieces with the sword of violence and injustice R. 2. for then heare what the blessed Apostle saith By breaking the Lawes dishonourest thou God Thinkest thou that the humane Lawes are not the Lawes of God when thy obedience unto them is so often in the holy Writ injoyned yea canst thou imagine that if thou shalt transgresse this Law that thou shalt escape the righteous Judgement of God Rich Legacies viz. the positive lawes Are the rich Legacies of thy forefathers bought at so deare a price with so much bloud and treasure trampled under thy feet as despicable things I will say no more Remember the wise man let not mercy and truth forsake thee binde them about thy neck and I beseech the Almighty God to give unto us all a right understanding in all things What I intended is now finished wherein I have squared my course altogether by the positive Lawes because of exception of the adverse part not touching upon the legislative or supreme power of Parliaments Master Plynne it being done already by the Pen of a learned Gentleman whose abilities are sufficiently knowne If I have satisfied any man in what is written it is my desire Epilogue I call Heaven and Earth to witnesse that according to my knowledge in the Lawes of this Kingdome I have delivered the truth and I wish every man to lay his hand upon his heart and rightly to weigh and consider the premisses and for passion sinister ends or respects to deviate neither to the right hand not to the left but with a sincere and cleere minde to implore the Divine assistance that in so weighty a matter he may act resolve and doe that which shall be agreeable to the holy will and pleasure of God and consonant unto the Honourable Lawes and Government of this flourishing State and Kingdome Soli Deo Gloria The Table ABsence of the King from Parliament how farre justifiable Page 19. as it hath been many yeares by no Law warrant used only page 21. Vi. tit Statute 38 H. 8. ca. 21. vi tit use Of any Member from Parliament how and in what manner justifiable and where and in what manner punishable p. 15 16 17 18 c. Vi. tit Statut. 5 R. 2. 6 H. 8. ca. 16. Acception legall priviledge of Parliament Pag. 6 7. Act Judiciall Ministeriall in what Cases not incident to the Kings Person pag. 32 Vi. tit presence Allegiance the Etymology thereof p. 18. triplex naturall locall legall p. 57 58 59 c. Vi. tit Statute 11. H. 7. ca. 1. to what capacity of the King due p. 62 Armes who permitted to beare who not Vi. tit Statute 2. E. 3. ca. 3. by the Parliament defensive justified in them â—s a Court of justice p. 70 71 72. Aâ—â—â—ne Royall in what cases requisite in what not p. 38. C. CApacity of the King naturall politick Vi. titl Allegiance devant naturall how secured by Law p. 66. Causes of Parliament efficient materiall formall finall differ c. p. 117 118 119. c. Commission of Array disproved Vi. alarge p. totum 52. 53. usque 59. Corone All Administration of Justice at first in the Crowne how meant p. 32 33. Court Parliament a Court of Justice without the Kings personall presence 32 33 34. severall Courts of Justice ibid. c. Vi. p. 72. Their 〈◊〉 to coâ—â—â—â—dâ—â—â— posse comiâ—â—â—â— posse 〈…〉 proved p. 37 72. Court in what Cases fall in Jâ—dgement oâ— Law in what not p. 39 40 D. DIspensation Regall against a Statute â—here of forcâ— wherenot Viâ—tul Non obstante E. Escuage The service explained not penal but by Parliament p. 46 47 Exception legall privil edge of Parliament p. â—6 7. Exception where it relates to the body of the Act 〈◊〉 â—re not p. 45. in some Cases unnecessary ibid. I. Innuendo in Acts of Parliament where rejected p. 4â— Judgement Against the King by the Law positive and compulsary p. 2â— â—6 Judgement or proceedings of Parliament not subject to debate elsewhere p. 2â— 24 â—â— Judgement definitive in what Cases pertaining to Parliament or other Courts of justice p. 39 4â— Judiciall Acts trans-acted in what cases by part of the Court representative by all p. 35 40. differed from ministeriall ibid Judge Who shall he of the danger of the Realme or of the â—ecessity of raising Armies p. 64 65. paralel'd with the power of judgement in inferiour Courts ibid K. King WHat capacity intended by Law and what meant hereby Vi. titl Capacity Vi. a large titl Stat. 5. R. 2 â—â— E. 3. p. 16 17 18 97. Considered in both capacities naturall politick p. 65. 66. L. LAw of Parliament Vi. titl priviledge inconsistent with the positive Law yet just p. 13 122 Common Law touching the Militia p. 43 44 45. usque 52 per totum Vi. titl Statut. 1 E. 3. 5 â— H. 4. 13. The onely positive Law now in force concerning the Militia Lawes and Statutes how to be expounded Vi. p. 50. 77. M. Militia A Right of Parliament p. 43. Duplex generall absolute or extraordinary ordinary or liâ—â—ted by the positive Lawes p. â— The Militia positive extendeth onely to Tenures or Contracts not to be forced out of their Shires unlesse in case of sudden invasion p. 45 46 47 c. Militia positive vestâ—d in the Sheriffe as an instrument or Officer by Statute in the Law or Courts of Justice in the power or right Vi. a large p. 82 83. usque 88. Vi. tiâ—l statut 9. E. 2. 28 E. 1. cap. 28. The generall or absolute power of the Militia in Parliament De jure not in the King the reasons why at large p. 78 79 80. Militia Of the Navie or the Seas in Parliament not in the King at large debated p. 90 91. c. not divisible ibid. Militia The Adjuncts and Attendants of the Militia viz. the Fortâ— Castles and Magazines to whom they belong ibid Different from houses or palaces ibid N. NEgative voice in Parliament to what it extends p. 23 24 c. examined in inferiour Courts p. 25 Non obstaâ—â—te in the Kings pardon where availeable where not p. 62 63 105 109. O. OAth of the King at his Coronation explained p. 27 28. Observations touching the discourse p. 122 123 c. Offence in presence of a Court of justice and in presence of the King differ Ordinance the Etymology of it how Regall power the Oâ—dinance of God p. 100 101 102 Ordinance and the force thereof in Parliaments in inferiour Courts debated p. 38 39 Offices publike or the great Offices of the Kingdome to whom the disposition of them pertaines p. 93 94. P.
PArdon of the King against a Statute Vi. titl Non obâ— posse Comitat. posse Regni vi tit Court of justice Person and power Regall differenced by Divine Humane Law p. 100 101 102. usque 105 In what Cases the Regall power may be opposed the Regall person not criminous by Law may not be opposed ibid No Coercive power as to the Regall person reason why otherwise of his Lands and Possessions or any illegall power raised by him p. 110 111 112 113 Priviledge of Parliament in the Militia Vi. titl Militia Priviledge of Parliament the Law of Parliament the Etimology differenced from the Lawes there enacted p. 45 Priviledge of Parliament in Criminall matters in Civill p. 5 6. extending to members strangers ibid Larger in Civill matters then in Criminall p. 7 8. in Criminall ordinary course of justice in Civill extraordinary p. 7 8 9. The reason of this priviledge ibid In Civill causes somewhat parallel'd in inferiour Courts not in Criminall p. 10 The priviledge in Criminall matters essentiall to Parliaments Et ratio p. 11 Priâ—iledge of Parliament That no Member depart without leave c. Vi. titl Statut. 5 R 2. 6 H 8. ca. 16. Presence of the King no protection against the power of the Law p. 28 29 Presence of the King in Parliament personall legall differ one inseparable not the other in inferiour Courts His personall presence in a Court of justice in some cases against Law p. 31 32 Prerogative Definition of it restriction of it Militia negative voyce in Parliament no prerogative Et ratio Proclamation a prerogative how and in what manner prerogatives and rights of the King different Vi. a large 114 115 116 117. c. Proclamation in time of Parliament p. 64. Proviso In Statutes expounded Vi. titl Statut. 11 H. 7. ca. 1. Vide statutum edictum 〈◊〉 parliamento in case Commitis Strafford sometimes explanatory onely p. 61 62 63 R. REcognizanâ— pro securiâ—aâ—â— pacis who may takes who not p. 32 33 34. Roy les parols nostre segnior le Roy. Vi. titl Statut. 25 E. 3. vi titl King S. SEntence and order of Parliament how understood p. 12 13 Statute 17 E. 2. Declarative of the prerogative Vi. p. 3. 114 5 R. 2. ca. 4 6 H. 8. ca. 16. Touching the absence of any Member from the service of Parliament explained p. 16 17 18. c. Vi. titl Absence 25 E. 3. Les paâ—ols nostre segnior le Roy what they intend ibid. p. 75. Vi. titl roy 33 H. 8. ca. 21. What absence of the King from Parliament warranted by this Act p. 19 20. Vi. titl Absence Statute of this Parliament for the releefe of Ireland opened in the preamble the Act but temporary p. 43 44 47 48 c. Vi. titl Militia 4 H. 4. 13. 1 E. 3. 5. 7. 18 E. 3. 25 E. 3. Declaratory of the ancient Militia limited by the Common Law p. 44â— 45. c. Vi. titl Militia positive 1 E. 3. ca. 5. 7. Statutes in matter and substance differing p. 49 50. 5 H 4. ca. expl p. 52 53 54 c. Touching the Regall power in the Array the true effect and meaning thereof p. â—5 11 H. 7. ca. 1. What the words Allegiance Commandment of the King intend in this Act p. 57 58 59. vi titl Allegiance the true reason of the maâ—ing this Act p. 104 105 â— E. 3â—â— 3. Who â—â—â—ke or Vi 〈…〉 p. 63 6â— 110 Statute of the Anamder of the Earl of Strafford Hoc parliamento editum explained 〈…〉 proceedings judgement p. 73 74 57. c. â—8 E. 3â— ca. 18. The Subjects right â—â—â—lecting the Sheriffe of the County 〈…〉 Vi. a large p. â—â— 83 84 85. c. 94 9 E. 2. Device com the Kâ—â—gs right in election of the Sheâ—â—â—e of 〈◊〉 Couâ—â—â—â—hâ—â—â— been used or at least his right or the Militia by this Statute refuted p. 82. 8◠〈◊〉 88. 2 E. 3. ca. 8. 14. E 3. ca. 14. viz. That justice shall not be delayed for the command under the great Seale c. Some observation on these â—â—â—tuâ—â—s p. 103 104 4 E. 3. 14. 36 E. 3. 10. Touching annuall parliaments c. 〈◊〉 calling parliamentâ— or when called the power of diâ—â—â—â—â—tion 〈◊〉 prerogative but a matter of rights and justicâ— â—â—t raâ—io p. 119 120 121. 3 Iacob ca. 5. Touching dis-â—â—ming papistâ— p. 109. 125 〈◊〉 â—e dispenced withall Vi. titl Non obstant T. Tumult WHâ—◠〈◊〉 p. 19 〈◊〉 â—here though the Kings person attended VI. titl 〈◊〉 1 H. 7. câ— 1. â—reason againâ—t the Lawes and Government Vi. titl statut 25 E. 3. p. 75. V. USe of no force aâ—â—â—st the Law in esse p. 21 Of no force in 〈◊〉 Militia the disposition of the great offices of the Kâ—â—â—dome Eâ— ratio p. 94 95. where availeable 〈◊〉 ibid W. WAgeâ— Sâ—â—â—â—â—â—s that 〈◊〉 thereof as appertaâ—ning to the 〈…〉 intended Vi. titl Innuendo 〈…〉 1. â— 3. â—â— 7. c. Errata PAge 2. l. 3. fanebrem pre furiebrem p. 3. in marg for station 1. stâ—tute p. 5. in m. Parliamento pro Parliamenti p. 6. fol. 18. r. f. 81. p. 12. l. 19. omit of p. 16. f. perceptum r. preceptum p. 16. in mar in miserecordia Dom. Regis id est cutia c. l. 19. p. 26. l. 4. sor right Court â— high Court l. 6 7. f. exploeded r. exploded l. 15. r. assent to bills p. 49 m r. not bound by their tenures c. p. 67. in m. r. if the King p. 76. l. 1. r. ignorantia pro ignorantia p. 76 l. 32. s not imprâ—st r. now imprest p. 86. l. 10. f malifica r. malefida p. 93. l. 19. f. disposition r. deposition p. 94. l. 3. r. Monarchies
Parliament inconsistent and differing yet both just in their proproper motion Vide postea if we should admit the tryall in inferiour Courts this mischiefe would follow that their Judgements might peradventure be legall yet not just it being lawfull for a man to open his Conscience here so farre without dread or feare in any matter touching the Common-wealth or any particular person in a Parliamentary way which in other Courts would be held a crime and by the positive Lawes of this Kingdome punishable This being so the vio ation of this priviledge rests to be proved and truly I am sorry to enter into the proofe of it it reflecting somewhat upon the Kings most excellent Majesty whose Royall Person I shall ever unfeignedly honour But surely it is the unhappinesse of Kings to be abused by evill Counsell and the errour is not to be imputed to the King but to his Ministers But since I must speake it is Soli lucem inferre to hold a Candle before the Sunne so evident it is it needeth no proofe at all for is not the breach of this priviledge in fresh memory when the now Members of both Houses should have been taken from them in an unusuall way I will not say by violence if they had been there present to the great feare and astonishment of that present Assembly but I will say no more as supposing this Act unjustifiable however not yet absolutely disclaimed for ought that I could ever yet see but his Majesty hath declared in print that he would proceed against them in an unquestionable way Vnquestionable way by these words not pronounced innocent but rather criminous A generall Declaration of the proceedings of this Parliament which words in what sence they may be taken I doe not for my part certainly know as being obscure to my understanding and not to all intents satisfactory which violation I take it hath been since pursued in his Majesties Declaration of the twelfth of August 1642. in offering to prefer an Iudictment upon the Statute of 25. E. 3. against divers Members of the House therein named and I take it his meaning is not in Parliament but of this I will speake no more Another right of Parliament is this That every Member of both Houses shall upon Summons come to the Parliament unser the paine of Amercement and other punishment as of old hath been used to be done as appeareth by the Statute of 5. R. 2. cap. 4. and also by the Statute made 6 H. 8. cap. 16. It is enacted that no Member of the House of Commons shall depart from the Service of the House without leave of the Speaker of the House of Commons and the Commons in Parliament Assembled which license shall be entred in the Booke of the Clarke of the Parliament upon Record under paine of losing those summes of Money which they should have had for their Wages by both which Statutes it doth appeare that departure from the House of Parliament without leave is a Crime and punishable of ancient times 5 R. 2. Of the Common Law declaratory for so it appeareeh by the first of these Statutes which was but declaratory of the Law formerly used and that the punishment was Fine and Imprisonment and sometimes Arbitrary appeareth by ancient Authority of Law But it may be objected Object that by a clause in the Statute of 5 R. 2. before named it is no Crime if the Member of Parliament so absenting himselfe can reasonably and honestly excuse himselfe to our Lord the King so that the King by this Statute is made the sole Judge of the offence and if the King License or Command the absence of any Member of either Houses it is sufficient To which I answer Sol. That the Statute is not to be intended in that sence that all Parliaments may be made frustrate and void at the will and pleasure of the King by his License or Command of the absence of any Member of Parliament without great cause for the same for that were not reasonable and honest as the words are Et veâ—ba accipienda cum effectu as the Law saith and otherwise the very essence of Parliaments would be shaken by such exposition But to make a full Answer to these words Our Lord the King before mentioned in the Statute are in Law taken for the King in his Politick Capacity not in his Personall and so it is no more then if the words had been to our Lord the King in his Court of Justice in his high Court of Parliament and so the Court of Justice is the Judge and not the King personally and so is the Law frequently takan for to give you an instance or two and that in a Statute Law as this is Merton cap. 3. Dominum Regem the Kings Court of Justice in the Statute of Merton cap. 3 are these words Statim capiantur in prisona Domini Regis detineanter quousque per Dominum regem vel alio modo deliberentur Here the words Dominum Regem our Lord the King are intended the Court of Justice of our Lord the King and not the Kings Person and so in the Statute of Marle-bridge Marl. cap. 8. Cum Domino â—ege the Kings Court of Justice Perceptum Domini regis perceptum curiâ— cap. 8. the words there are Et hoc per finem own Domino Rege faciend per transgressione c. Here cum Domino Rege is intended the Court of Chancery or Kings Bench and so is perceptum Domini Regis in that Statute taken for the command of the Kings Court of Justice and not for any other command of the King whatsoever In miserecordia Domini Res 1. curio Domini regis Statute enacts that Fine and ransome shall be made at the Kings pleasure intends the pleasure of his Court of Justice not his persons pleasure The Law is cleare in these Cases which are the very same in these words with the Statute 5 R. 2. before named Further because this objection seemeth great I will give you one instance more in a Statute latter then any of these the Statute of 25 E. 3. an Act so highly and worthily prised and much made use of at this time by the Kings Majesty the words are these Ou si home levira guerre counter nostre Seignior Le Roy en son Realme c. Here the words Nostre Siegnior Le Roy are taken for the Lawes of our Lord our King and by good judgement likewise as to me it seemeth not for any leavying War against his Person for that is included in the first branch of this Act Si home compassa ou imagine c. The Lawes and the Courts of Law or Justice intend the same thing therefore I conclude the words Our Lord the King must necessarily be meant in this Statute of 5. R. 2. the Kings Court of Justice or the Lawes of his Court of Justice to wit His high Court of Parliament who onely are
Law they are meere estranged from any knowledge in this nature of any proceedings of each other interlocutory untill judgement given and then it must legally be brought before them Jurisdiction of Courts so that this Case is clearely meant of their joynt power wherein by custome as saith Sir Edward Cooke the Lords only proceed to reverse or affirme any Judgement upon errour no whit diminishing the Power and Authority of the House of Commons by this for divers matters may by custome be severally trans-acted by Persons having the same power and authority Transaction by one done by all representative and yet they are in Law trans-acted by all the Members or Judges of that Court representative How the opinion of Sir E. Cooke formerly is to be understood viz. according to their joynt power of Judicatuâ—e But I doubt not but the transcript of any Judgement in the Kings Bench may be commanded and that legally too into the House of Commons and that they may proceed thereupon either to affirme or reverse the Judgement and that by the power of that high Court as a severall and distinct Court of Justice from the House of Peeres this Case before remembred to be good Law notwithstanding but this I leave to the learned The House of Commons may take a Recognizance at a distinct court of Justice Now concerning the Recognizance before touched there is nothing expressed or implyed in this Case but that the House of Commons as a severall and distinct Court of Justice of it selfe may take a Recognizance there is no question of that for every Court of Record have that power unquestionably yea derivative Authority from Courts of Justice as Commissioners of Oier and Terminer are invested with this Authority Further The House of Commons may take a Recognizance according to their joynt power the House of Commons considered in relation to their joynt power may take a Recognizance for so saith good authority that reverend Judge Brooke in abridging the said Case of 1 H. 7. before cited Videtur quod tout un are his very words besides if there hath no such practise been or used in the House of Commons that is no proofe it is no argument from a non esse to a non posse an hundred presidents Sub silentio make not a Law it was never yet upon contestation so determined but of this sufficient Thus I hope I have cleared this false aspersion it plainely appearing that they are a High and Supreme Court of Justice joyntly and severally without the Kings personall presence The Assembly at Oxford no Parliament There hath of late been an Anti-parliament for so I may terme it erected at Oxford whereby they had thought to have weakened the power of this Parliament by Voting their proceedings as traiterous and illegall but alas these are poore shifts and evasions seeing there is an Act unto which they themselves this very Session have assented by which it appeares this Parliament cannot be held proroged or adjournied elsewhere without the consent of both Houses of Parliament now assembled so that this Assembly at Oxford is no Parliament and consequently their proceedings a meere nullity in judgement of Law and withall subject to severe Censure in regard they have assumed to themselves the Supreme Authority of the Kingdome without any warrant of Law so to doe and that spurious generation of Bastards or illegitimate Children which seeke to sever and divide the Power and Authority of this High Court by affirming any legall presence of this Assembly elsewhere the wise Salomons of this Parliament will in their due time bring to condigne punishment Well then they being in Parliament and a high Court of Justice without the Kingâ— personall presence Inferiour Courts may command Posse comitatus what question can be made of their power even as a Court of Justice to constraine and compell all persons yea even by force of Armes to submit to their supreme Authority and in case of resistance if inferiour Courts may command Posse Comitatus to execute their Processes and Injunctions as it is manifest they may for in one common Case of Replevin from the Court of Common Pleas the Sheriffe of the County as Minister to the Court of Justice if the party that hath taken a Distresse carry the same to a Fort or Castle to the end it may not be replevied he may command the power of the County to attend him and abate that Fortlet or Castle in case of resistance delivering by Replevin the Cattell to the owner Surely then the Parliament in case their Power be contemned and disobeyed may command Posse Regni and not onely Posse comitatus to bring all persons rebellious unto the Justice of that High Court there to receive according to their merits And thâ—s is the case of this present Parliament as I take it who have legally Summoned the Members of both Houses now absent to attend the Service of the Houses and they have not appeared but absolutely refused to obey the Summons Processe and Power of that Court which for my part what offence it is and where Censurable I leave it to the world to judge upon whâ—t hath been formerly spoken there being no absolute case of necessity to plead for their absence as I could ever yet perceive and the Lawes and Statutes of this Realme being peremptory in the mulct and penalty thereof The Kings presence representative by 33. H. 8. supra Now peradventure it is necessary to know in what the Royall Assent Personally or Representative is required and that is plaine in enacting any Law or Statute to make it perpetuall to oblige the people I conceive the Royall Assent must precede yet the Royall Assent cannot in Justice be denied neither with a Le Roy s'duisera suspended unlesse satisfactory reasons be given for the same unto the Parliament for the publike good as also the confirmation of them is no act of transcendent grace but of right and Justice as hath been formerly spoken The power of the Parliament to make Ordinances paralleld with this power in inferiour Courts Nay further it must be granted that as incident to this great Court they may make Ordinances to binde the people Sedente Parliamento without any royall assent unto which Ordinances although not grounded upon the positive Lawes of this Kingdome the people ought to yeeld obedience as well as to the Ordinances Ordinances binds untill definitive Judgement though not transacted in plena cur Orders and interlocutory Judgements in other Courts of Justice unrill definitive or finall Judgement which is for the most part in Plena curia when the Court is full but that other power is used although but part of the Court be then sitting and bindeth all persons untill finall Judgement it is also plaine that in other Courts their Orders Ordinances Ordinances binding though not grounded upon the positive Lawes and interlocutory Judgements are
not grounded alwaies upon the positive Laws but upon intervenient accidents arising upon materiall circumstances of time place or other emergent causes which Orders are held by the Sages of the Law agreeable unto equity and Justice although no expresse Law to warrant the same In Chancery many crosse Orders the one to the other in a cause there depending yea almost seeming contradictory yet in Law and conscience justifiable and he that shall disobey those Orders is accounted a rebell unto the Law the King and his royall Government Jurisdiction of Courts title Parliament as appeareth by the Writ of Rebellion usually in those cases issuing and Sir Edward Coke affirmeth this power of Ordinance antiently pertaining to this high Court of Parliament And I know not but they may proceed to definitive Judgement in Causes notwithstanding any thing that hath been formerly spoken The Power of Parliament to proceed unto finall Judgement in case of wilfull absence of any the Judges of this Court paâ—alleld with this power in inferiour Court The Court full in Judgement of the law without those Judges which are wilfully absent if any Members of the Houses who are by Law Judges of this high Court shall refuse to discharge the trust committed unto them as the case now is and wilfully by absence or delinquency make themselves uncapable and unworthy of that great service for then I conceive it cleere that the Court is full in Judgement of Law without them and under favour there is no Law in point but the remaining Judges may proceed by the same authority For to examine a little the course of inferiour Courts of Law if any one or two of the Judges of the Kings Bench or Common Pleas shall obstinately recede from that Court and deny his attendance there for the publike shall not the residue of the Judges transact all matters there depending Certainely they may and further they ought so to doe And although for conveniency or conformity or to the end the Judgement may be the more unquestionable being confirmed by the greater number the weighty matters are agitated and determined in Plena curia for the most part yet I take it cleere in case of absence especially wilfull or obstinate the remaining Court may debate and finally sentence all matters incident to their jurisdiction Indeed in some particular cases the chiefe Justice or Judge hath formerly had the sole power as concerning Writs of Errour viz. that the warrant for the issuing out the Writ of Errour to the Chancery ought to be under the Teste of the chiefe Justice of the Kings Bench No judiciall but ministeriall acts by law transacted solely by any one Judge in inferiour Courts vid. Supâ—a but that Case or any of the like nature I conceive are only ministeriall but if a Writ be once returned in Court and so the Cause there depending no doubt the remaining Judges may judicially heare and determine Now if so in these lower Courts we cannot dis-affirme the same in this eminent Tribunall the Parliament the Court being the moddell and patterne of all other Courts the Gnomon that points out the course of the Sunne the course of Justice and equity to all the other Courts there being no brightnesse or lustre of Justice in inferiour Courts but resides more fully and more aboundantly in that high Court of Parliament So that I conclude the Parliament may make Ordinances Orders give Judgement and Sentence definitively in all matters whatsoever without the Kings personall presence or any of the Members of either Houses their absence being such as is formerly declared and that upon the reason of Law in these rivâ—lets of Justice their latitude of power and the superlative authority considered in themselves and in their course of prâ—ceedings being not so much as intended to be here mentioned but onely by way of comparison or resemblance of the Law in inferiour Courts to make things more conspicuous not any waies to dishonour this Court as if it should emendicare justitiam begge or borrow the rules of Justice from inferiour Courts who arâ— but tanquam ancâ—lle like handmaids to this Lady and Queene of Justice as also it is done ea intentione to informe vulgar capacities per notiora nobis by things even subject unto sence to the end they might if possible be satisfied I should now enter into the proofe of the violation of this priviledge almost forgotten by this digression namely the transacting of matters belonging unto this high Court by the new erect and pretended Parliament at Oxford a greater violation in this particular then if any inferiour Court of Justice in this Kingdome had assumed or arrogated this authority The Assembly at Oxford unwarrantable by law even in their Session much more in their proceedings because this Assembly at Oxford have not so much as any colour of Law to warrant even their Session much lesse their proceedings the matters there trans-acted and adjudged in derogation and dishonour of this high Court being so many and numerous as also the extrajudiciall arraignement of the Votes and proceedings of this Parliament but I thinke it is manifest to all the world and no man ignorant thereof The many and weighty Remonstrances Declarations and Ordinances of this high Court decâ—ared and pronounced null and void at Oxford and elsewhere by Declarations of his Majesty extrajudicially framed Much might be spoken herein with much sorrow and peradventure not without offence therefore I will desist and close up my meditations on this particular protesting nothing but the delivery of the truth with meekenesse and moderation and my soule is full of heavinesse and lamentation that ever so unhappy an occasion should be ministred â—eseeching God if it may stand with his Will and Pleasure to heale all our wounds and to reconcile all differences with peace There is another right of Parliament yet behinde which requires me not to be silent as being of all one of the chiefest by breach of which the Sword is gone through our Land Armies of men have been raised whereby not only violation of Lawes Rights and Justice but even the destruction of all is at hand unlesse God in his mercy prevent it In briefe we have seene great forces raised and maintained by the King without any Law or authority to warrant the same being as I suppose misinformed and unadvised herein The Priviledge or right of Parliament it being directly against the right and power of Parliament which is this That no Armies of men can he raised by the King or any subordinate authority under him but as the positive Law hath prescribed unlesse by consent of Parliament And here peradventure it will be expected I should speake of the Militia of the Kingdome The Milita absolute or generall Vid. infra as being a matter at this time of the highest concernement but I will referre it to a distinct debate by it selfe as you shall perceive hereafter in this discourse
The Milita positive or by the positive Law limited and here onely that part of the Militia that hath relation to the positive Lawes I will open unto you and shew you even here the transgression of the Law positive it being not onely against the ancient Law of the Land but llkewise against a Stature unto which his Majesty hath given his Assent this very Sessions of Parliament The ancient Law of this Land is mentioned in the Preamble of this Statute viz. That none is compellable to goe out of his Shire to the Kings warrs unlesse it be in case of necessity of sudden comming in of strange enemies into this Land as some Sratures recite the Common Law and other Statures wâ— out the word necessity in the reciâ—â—â—s â—ut â—e Common Law but it is not at all materiall as you shall see hereafter The body of this Statute is for the releefe of Ireland against those Popish Rebells An Act for the releefe of Ireland who in a short time have made a populous and rich Kingdome even almost desolate You have heard the Common Law which was to secure the Kingdome in case a Parliament could not so speedily be called for the defence thereof but it is plaine that hereby is intended Of necessity some Statutes recite the Common Law thus others not that no man is compelable to serve the King in his warres against the representative Body thereof for that is not for the defence of the Land but for the ruine thereof they being in no case to be conceived enemies unto the King or the Realme but as the supporters pillars and maintainers of all justice and peace in this Common-wealth The Common law now in force toâ—ching the Militia extendeth onely to Tenures or Contra is It appeareth by this Law likewise that none are compellable to goe out of their Shiâ—es to the Warres although a suddaine incursion of strange enemies but onely those which are bound by Tenure or Contract and that none others can be forced to serve the King in his warres unlesse by grant of Parliament The statute of Winchester seeing downe an Assiâ—e for land and goods and that without relation to Tenures or Contractâ— is now not in force Vid infra and this appeareth evidently by the Statute of 4. of H. 4. 13. a very weighty and worthy Act for our purpose for that Statute reciteth and confirmeth all the Statutes formerly touching this particular as namely 1 E. 3. 5. 18. E. 3. 25. E. 3. which said Statutes recite the ancient Common Law and this Statute with the others are but declarat◠〈◊〉 the Common Law so that open tâ—â— estrnce of this Statute you open the Common Law and Statute Law touching this particular Now it appeareth plainely by the exception in this Statute 4 H. 4. 13. The exception of Services and Devoires other then Millitary was not of necessity but to satisfie those who were not so conusant of the lawes for sure they had not been included the stile of the Act is of millitary services onely and by the exception likewise in the Statute of 25. E. 3. that none shall be charged to finde men of Armes but onely those that hereunto are bound by Tenure or Contract for the exception alwaies is parcell of the premisses and relateth in Judgement of Law thereunto therefore the enacting part of these Lawes must be onely meant of Military services in respect of Lands holden by such services or devories and no otherwise unlesse you will make the exceptions which are as it were explanations of the mindes of the Law makers meerely frivolous Nota. The exception is of services due by Tenure therefore so must be the body of this Act intended This Assize was some ancient law antiquated or not in force revived by Winchester bâ—t Winchester being repealed this Assize is of no foâ—â—e It appeareth thus by the meaning of 1 E. 3. cap. 5. before spoken of that the Common Law recited must be intended onely of Tenures or Contracts And further these words otherwise then hath been done or used in times past for defence of the Realm doe partly relate to the Statute of Winchester which Statute sets downe the Assize or proportion of Armes for Lands and goods and withall is but declaratory of the Common Law or Statute in this but it proportions the finding of Armes in a way compulsary which before was not so so that you see the result of all is this none but those which are bound by Tenure or Contract are compellable to serve the King in his warres within the Kingdome or without and that they onely in case of suddaine invasion Rebells are not enemies as the words of the common law are so that it may be further urged upon this Law viz. the Common Law before recited that not onely against the Parliament but even to suppresse any private insurrection or rebellion of the Subject within the Kingdome the King cannot force the Subject out of his Shire for the words are as formerly you have heard them unlesse in case of suddaine comming in of strange enemies c. and to make the vigour and force of this Law without doubt such is the judgement of this Parliament in recitall of this Law as you may perceive Instit Sur. Littleton The Tenure of those that hold by Escuage explained This law viz. the common law recited in 1 E. 3. 5 Service by Eâ—cuage to be performed out of the Realme Sir Edw. Coke ibid. 1 E. 3. ca. 5. good law none shall be forceâ— c. for Escuage or forraine service is not compulsory by the positive law but by Parliament Sir Edw. Coke f. 69. perhaps is misprinâ—ed in these words if the Tenâ—re be tâ— goe into William Hiberniam c. and the words should be thuâ— if the Voyage Royall be to goe c. I leave it to the judicious The Law may seeâ—e to include a generall Tenure by Knights service as a speciall as to me it seemeth but if so not materiall since Nulla sequatur pena Sir E. C. f. 69. in his Institutes where he saith that Scocia is put but for example seemeth to incline that the law is intended of a speciall Tenure Sir Edward Coke seemeth in his Institutes to say That he that holdeth his Lands by Escuage is bound to attend the King in his warres out of the Realme contrary to this Law formerly recited but his meaning must either be intended where the Tenure is expressed to that purpose as to goe in Scotiam Hiberniam Pictaviam c. and then it is nothing to impeach this Law as being intended of generall Tenures by Knights service c. or otherwise if his intention be also of a generall Tenure by Knights service such as draweth unto it Escuage yet if the Tenant attendeth not Nulla sequatur pena by Law untill the penalty of Escuage for non attendance be assessed by Parliament so that you see upon the
point the Common Law formerly recited is still in force viz. That none are bound to attend the King in his Warres either within or without the Realme unlesse in case of sudden invasion unlesse by their Tenures if by their Tenures bound to attend him in forraine service as that is not cleerely granted yet you see no penalty ensues for default thereof unlesse the high Court of Parliament impose it a president of which Escuage assessed Service not compulsary in effect no service we have not had since 8. E. 2. no such service penall or compulsary without Parliament which is in effect as if you should say No such service at all without consent of Parliament But I will leave the Common Law I hope vindicated from all objections and come we to the Statute it selfe and that is that such number of Souldiers shall be imprest in all Counties of this Kingdome by the Committees for that purpose as shall be appointed by the King and both Houses of Parliament This is the substance of the Act if not the words and here you may see this Statute is tender of the ancient Birth-right and freedome of the subject for it reciteth it and withall maketh but a temporary provision for Ireland The statute for the releese of Ireland but temporary The Common Law onely in force for the Militia of thiâ— Kingdome against all persons except the high Court of Parliament Vi. infra which occasion ceasing the Common Law hath its force againe so that as to the Realme of England and elsewhere except Ireland the Common Law hath its force and is at present effectuall against all power and authority either of the King or Subject but only the supreme authority of Parliament Object But it may be hence objected that since this Act extends onely to Ireland therefore the Militia for the service of this Kingdome rests as it did before not within the letter or sence of this Act. Sol. Implication for sure the King would not have joyned in an Act if he might have done it legally before Object I answer if we should admit this which for Argument sake we onely doe there being something to be gathered by implication from the words of this Law touching the power of the Militiia as appertaining to the Parliament then the Common Law formerly recited must rule us and here it is said The Common Law That none shall be forced out of their Shires c. is intended without wages and therefore if they have pay or wages they may be legalâ—y compelled by the King to attend his service in the warres and so are the Statutes of 1 E. 3. 18. E. 3. and divers others and the opinion of that reverend Judge Thirninge in the time of H. 4. is so to be intended Sol. No Innuendo in private affairs much lesse in Acts of Parliament allowable I answer first if this should be granted it is a strange and dangerous way to expound Lawes and Statutes and to inlarge the meaning of the Law-makers with an Innuendo a thing not permitted even in private affaires much lesse to be allowed in generall and publike lawes viz. That they shall not be forced out of their Shires c. innuendo without wages by this course Lawes and Statutes shall be wrested and made a noâ—e of waxe capable of any forme or exposition but there is one great reason which will make this Objection but meere cavillation if I have not satisfie it already and that is this That one Session of Parliament viz. 1 E. 3. confirme and makes both these Lawes 1 E. 3. ca. 5. 1 E. 3. ca. 5.7 explained 18. H. 6. 19. 7. H. 7. 1 3. H. 8. 5â— recites the Common Law before remembred and confirmes it too 1 E. 3. ca. 7. and all other Statutes relating to this Law have these words or to this effect That Souldiers (a) Imprest viz. Forreine service not compâ—lsary by the law positive penall by authority of Parliament Vt supra 1 E. 3. ca. 7. may heâ— also intended of the Impressing that Militia that was not hereunto bound either by Tenuâ—e or Contract both branches of the Militia intended by this law legally raised or imprest 1 E. 3. ca. 7. intended most especially of that generall and more absolute power of the Militia not of the positive Militia viz. of those that were bound by Tenure c. imprest by the King (b) The word Commission in the statute of 1 E. 3. ca. 7. must be intended Commissioners derived from the authority of parliament not any oâ—her regall Commission so forreine service might be â—ompulsary even of those that weâ—e bound by their Tenures viz. by such Commissions Commission for Scotland or Gascoigne shall have wages Or forreine service f. 1. E. 3. 7. the one Statute is generall in the negative That they shall nor be forced out of their Shires either with wages or without as the sence is plaine to any rationaâ—l man The subsequent Law saith That the Kings souldiers shall have wages so that having wages allowed they may be compelled to serve Here seemes repugnancy or contradiction may be said To reconcile this and to manifest to the world the honour and wisedome of a Parliament notwithstanding any aspersion by the rule of law and reason you must make such exposition of any Law as in all parts may be operative and effectuall if it may be and that each Chapter of a Session of Parliament may have their genuine and proper operation why then these Statutes Ex visoâ—ribus actus an excellent way of expounding Statutes by comparing and conferring one Statute with the other are thus to be intended 1 E. 3. ca. 5. 7. Statutes differing in matter and substance viz. That 1 E. 3. ca. 5. and 7. are Statutes differing in matter and substance the one not having any relation to the other though they may so seeme upon the first view for 1 E. 3. ca. 5. extendeth onely to the Militia limited by the positive Lawes cap. 7. to the Militia imprest by authority of Parliament for forreine service which could not legally be dore without this authority as you have formerly heard and so the one doth not crosse or oppose the other which of necessity they must doe if other constructions be made for they treat of severall matters and the sence of Law makes a great disparity betweene them though there be a sound of words seeming otherwise so that 1 E. 3. ca. 7. is thus to be intended The Kings Souldiers going in forreine service shall have wages viz. The Kings souldiers legally raised by authority of Parliament and so there is no violence offered either to the letter or sence of either of these Lawes The power of the Militia to be implyed by the King in Forreine service with wages printed in Calvines Case denied for law That which is printed in Calvins Case a famous Case well knowne to Lawyers was but the
arguments of Judges â—o resolutions in this particular and iâ— they had been resolutions they had been erronious as it is manifest by what is formerly spoken and by the judgement also of this Parliament in reciting the ancient Common Law in this particular in force even at this day Much labour hath been spent in one of the Kings Declarations to put in or for and in the Statute of 1 E. 3. No necessity but forreine invasion upon the Common Law of the Statuteâ— which recites the Common Law and so to extend that Statute and the Common Law likewise to home defence but the truth of it is there is neither or nor and in the Statute of 4 H. 4. which is a weighty Statute and recites the Common Law in this particular and the Statutes confirming it for the words of this Statute are Forreine service by statute this Parliament enacted a fâ—â—tioâ—â—â— Home defence None shall be forced out of his Shire to the Kings Wars unlesse in case of necessity of suddain comming of strange enemies into the Realm thus you see all passages cleared His Majesty in one of his Declarations saith That he yeelded more willingly unto thiâ— Act for releefe of Ireland it being no matter of home defence but forreine as being also formerly controverted how groundlesse the controversie was on the adverse part for disposition of the Militia for forreine service by the regall authority you may see by what hath been formerly delivered Also we may reason thus upon this Statute viz. The Statute for releefe of Ireland that if no forces can be raised by the King for the defence of a forreine Kingdome though subject to the Crowne of England a fortiori they cannot be raised for home defence without consent of Parliament and certainely if they might be raised they must be maintained and what provision hath the Law made for them verily even none at all then it followes that Armies of men illegally raised must be illegally maintained that is to say By rapine and oppression Object Commission of Array But it is objected That the Kings forces are raised legally viz. by a Commission under the Great Seale commonly called The Commission of Array Sol. to which I answer That the Commission of Array is against the fundamentall Lawes of this Realme and is neither warranted neither by Common Law or Statute or president of former times it being against them all directly forcing men to goe out of their Counties as it is now put in practice against the ancient Common Law formerly remembred and to finde Armes contrary to the Assize limited in the Statute of Winchester and subjecting mens bodies and estates to imprisonment and other penalties imposed by Commissioners for refusall things not warranted by any Law Object But it is urged That the Law of 5 H 4. a Statute not in print upon which his Majesty grounds his Commission of Array is in force Indeed that Statute the King hath made use of in print to publike view for his sole and onely warrant of this Commission but you shall see presently how unsafe a refuge it is yea how upon the first triall of it it will not enduâ—e For in the first place I say Sol. It is absolutely repealed and that by the Statute of 21. Jacobi by which all former Statutes concerning the power of Arraying men are repealed and then surely Statutes that concerne the execution of this power must needs be also repealed as this of 5. H. 4. is 5 H. 4. Depends upon Winchester as even reason teacheth for how can any Statute touching Commissioners Arraying or arming men stand in force when the Statute of Winchester the sole Statute concerning the power of Array is by the Law repealed but to make it plaine to every capacity the Law of 5. H. 4. is onely a Law for the indemnity of Commissioners putting in execution the Statute of Winchester Now if the Statute of Winchester be nor in force this of 5. H. 4. 5. H. 4. Temporary no statute must likewise fall to the ground because it doth necessarily depend thereupon Further this Statute of 5. H. 4. was but temporary and so expired long agoe or no Statute at all but a Commission inrolled or the like never assented unto in nature of an Act of Parliament as is learnedly proved by the Remonstrance of Parliament Concerning the Commission of Array I will crave the patience to answer one Objection more particularly because it seemeth materiall and this is made by the Penner of one of the Kings Declarations Object to wit that 21. Jacobi repeales indeed the Statute of Winchester but not 5 H. 4. Refutation of the Commission of Atâ—â—y by Parliament because Winchester is onely for preservation of me peace at ordinary times as also the Asâ—ize of Armes in that Act mentioned a petty and small proportion not sutable or agreeable to extraordinary or great occasions as suddaine invasion or the like and therefore 5. H. 4. Authorizing a large Commission for the raising and leavying of Armes agreeable to any occasion ordinary or extraordinary must needs be still in force notwithstanding the repeale of Winchester they are severall Statutes to severall ends and puâ—poses and therefore the repealing of the one repeaseth not the other Sol. Winchester for deseâ—â—e ordinary and extraordiâ—â—ry I answer The Statute of Winchester is intended by the very words and sence of the Law for defence ordinary and extraordinary and so is the Judgement of a Parliament in 3. R. 2. that Winchester was made for the defence of the Kingdome and the small proportions of Assizes of Armes there mentioned are but onely mentioned for example Exâ—mpla illustrant non testringunt lâ—gem Assises or proportions other then in that Statute limited and above those proportions are plainely collected from the very words of this Act as also that Winchester did extend to other proportions was the judgement of the Parliament 3. R. 2. before specified Come we then to 5. H. 4. that recites the Statute of Winchester and confirmes it as likewise that the Statute of Winchester was made for the defence of the Kingdome ordinary The very words of 5. H. 4. shewes that Winchester was for defence ordinary and extraordinary and extraordinary appeares by the very words of this Act for defence of the Sea-coasts and that in that case the Statute of Winchester shall be observed Are the Sea-coasts defended but for feare of forreine invasion which likewise was the cause of making this Act for but the yeare before the French attempted to invade this Kingdome It may be said then Object What needs this Act of 5. H. 4. if the Statute of Winchester provided sufficiently for defence of this Kingdome I answer Sol. That this Act was made to rectifie illegall Commissions not warranted by the Statute of Winchester and this was the sole end of the making this Act. The true sence and effect of the statute
5. H. 4. The Commissioners putting in execution the Statute of Winchester the ancient and only knowne Assize No doâ—bt the Military Tenure by common law was compulsary viz. by Distâ—esse or the like to services incident by law for Armes compulsary are saved harmelesse and inpemnified by this Law notwithstanding their former large and illegall Commissions and that they shall execute so much of their Commissions as was warranted by this Statute of Winchester and no more and for not executing the other illegall clauses in their Commissions at the making of this Act issued forth the Commissioners are saved harmelesse and indemnified by this Act so that you see 5. H. 4. depends upon Winchester notwithstanding the former objection Eradicate a Plant you destroy the branch so the repeale of the Statute of Winchester repeales 5. H. 4. as necessarily depending upon it Out of their shiâ—es viz. unlesse in case of suddaine invasion The conclusion of all is this The ancient Common Law formerly recited is now in force none could be forced to finde Armes or serve in person but those that were thereunto bound by their Tenures of Contracts nor those any further or otherwise that is to say out of their Shires or with proportions of Armes greater then they were bound unto by their Tenures or Contracts yea it appeares that by the Common Law Armes were proportioned he which held by a Knights Fee was to finde a man in Armes and so proportionally De coeteris and therefore Winchester did but affirme the Common Law in this or further enâ—arge it as also make the proportions of Armes more penall and compulsary then before The statute of Winchester sets downe an Assize for land and goods the common law extended onely to lands and only to such lands as were bound thereunto by Tenure by this statute all lands are tyed to finde Armes proportionall but whether those that wee bound by Tenure were to be Assessed by the Act and so charged with a double proportion of Armes In The ancient Assize in this statute mentioned was surely some law antiquated or not in force or at least not compulsaâ—y therefore Winchester revives it the common aw for Tenuures is now in force onely Now Winchester being repealed there is neither Common Law nor Statute to force any man to the finding of Armes but onely those that are bound unto it by their Tenures or Contracts and that thus the Law is taken upon all these Statutes concerning finding of Armes appeares by Sir Ed. Coâ—e in the seconâ— part of his Instit f. 528. in his Exposition of the Statutes of confirmations Chartarum libertatum for he concludes the Law to be that no man shall be charged to Arme himselfe or others save such as hold by such service of the King or other Lords whereby they are bound to it unlesse it be by consent of Parliament and further saith that that was the Common Law which these Statutes did affirme There is one Objection more Object and it is strangely and much insisted upon by his Majesty in one of his Declarations for he maintenance of his Commission of Array and for the nullifying of all these positive Lawes formerly spoken of and that is upon a Statute in force the Statute of 11. H. 7. ca 1. 11. H. 7. ca. 1. a late Statute and subsequent to all these by which the service of the Subject in the Kings Warres both within the Kingdome and without is recited and the Subject charged therewith according to their duty of Allegiance I answer Sol. this opened will likewise prove nothing 't is but the preamble of the Act and all the doubt will rest upon these words formerly mentioned The Subjects attendance on the King in his Warres either within the Kingdome or without may plainely be intended according to the positive Lawes formerly remembred The words of the preamb e. for some especially by their Tenures were bound to attend in forreine service as where their Tenures were to attend in Scotiam Pictaviam c. Commandment of the King what it intends The Commandement of the King here mentioned may either be intended according to their Tenures for forreine service or otherwise the Commandment may be taken for his legall command not his personall and that you have heard what it is the command of his high Court of Parliament Nota. and so what question of the Impressing men for forreigne service but the Regall command according to their speciall Tenures is that which in my judgement is full and satisfactory According to the duty of their Allegiaâ—â—e explained Alleg viz. naturall legall locall Come we then to those words according to the duty of their Allegiance the Subjects Allegiance is naturall locall and legall but the naturall and legall Allegiance is here intended and what is the legall Allegiance you shall see likewise is the naturall therefore the legall Allegiance opened ends all Legall Allegiance what it is viz. the positive Militia The legall Allegiance is that perâ—onall service which the Subject oweth unto his Soveraigne by the municipall Lawes of this Kingdom and that you have heard at large formerly what it is I need not use repitition Legall Allegance and naturall agree Now the naturall Allegiance and legall differ not but rather the legall Allegiance is explanatory of the naturall for the Law saith That the Subject shall serve the King in his Warres Salvo contenemento viz. Secundum starum facultates a respect being had to every mans state property faculty or ability and to that purpose was the Common Law and the Statute of Winchester limiting the Assize of Armes viz. Secundum starum faculâ—ates what saith the naturall Allegiance otherwise but that every man shall attend the Kings Persâ—n in his Warres according to his state and ability if other construction should be made the Law naturall should be unjust and without care and preservation of the Common Wealth if the imposâ—tion of this charge were not â—â—brâ—o respectu to every mans property state and faculty Thus you see what is meant by the duty of their Allegiance within this Statute Legalis ligeantia aâ—pâ—ex peradventure it may be urged there is another branch of the legall Allegiance also viz. when men be imprest for the service of the King by the authority of the high Court of Parliament without aâ—y such speciall relation to their Tenures or Estates or to the positive Lawes I grant This Allegâ—ance is likewise â—abito respestu ad statum c. agreeing with the otâ—er legall as also with the naturall for otherwise Acts of â—arliament should be unjust One branch only of the legall Allegiance intended by 1. H. 7. ca. 1. viz. the Allegiance due by the positive law this is the legall Allegiance likewise but this Allegiance is not intended in the Act of 11 H. 7. before specified for that Allegiance must â—ecessarily be meant tâ—e Allegiance due by the
that they instance in the Case of the late Earle of Strafford Sol. To which I answer first That if they did so it were but just according to the Supreme power of that Court but to descend to our Adversaries and to search all the Foxes Holes that they may have no refuge I take it cleere that in the Case of the late Earle of Strafford they did proceed against him but according to the positive Lawes in respect of the Crime The Common law of this Realme is in force in Ireland and all statutes enacted before 10. H. 7. in this Realme are in force in Ireland vid. Poyninâ—â— ley though his triall might seeme somewhat differing for surely either by the Common Law or by the Statute of 25. E. 3. or by the Statute of 28. H. 6. as I remember a Statute made and enacted in the Kingdome of Ireland he was justly attainted of High Treason as for the Act of Attainder and the Proviso thereof that it should be no president for the future the meaning whereof I will open unto you hereafter certainely it was not for want of Crime or Delinquency as ignorant people and disaffected falsly say For a little to debate this particular in mine owne apprehension and no further because I have not lately seene this Act. Act vid. the act â—f Attainder of of the Earle of Strafford He was at first by Bill in the House of Commons Voted a Traitor which Bill was transmitted to the Lords for their concurrence therein but the Lords being doubtfull De jure not De facto as they were at the first in the Case of the late Prelate of Canterbury to wit whether he were guilty of high Treason by the Positive Lawes or no therefore for their satisfaction he was tryed in Westminster Hall per pares by his Peeres upon their Honour according to the course of the positive Lawes a L. Steward being appointed found guilty there of high Treason Upon these proceedings was the Act of Attainder drawne up wherein the Clause afore mentioned was inserted viz. That this Act of Attainder should be no president for the future which I conceive must be intended either in respect of the Triall or Judgement it selfe The Act or Judgement includes the triall or proceedings in law and although the clause should mention the Act and not the proceedings thereupon it is all one as if it had in sence of Law for the proceedings and the triall are included and involved in the Judgement and therefore the Act of Attainder or Judgement comprehends all depending thereupon Reverse a Judgement at Law you reverse all the proceedings without any mention of them therefore they are included Now the triall was unusuall for in the House of Commons he was tried in a Parliamentary way in the House of Peeres by the Common Law in Westminster Hall Further this Clause might have a retrospect unto the Act or Judgement for the Judgement was unusuall at least not necessary in this respect he was by the positive Lawes proceeded against Judgement might have been given against him by the Parliament which Judgement should have been entred into the Rolls of Parliament Vnto a Judgement by Statute all men are privie according to the course of other Courts of Justice but to be attainted by Act this was more full and satisfactory both to the offender and to others in this respect that all men are privie and consenting unto this Judgement either personally or representatively and therefore all men must rest satisfied but to returne to our former Discourse and not to detaine you any longer with mine owne fancy as some may say This I will confidently averre he was by the Law positive adjudged a Traitor for leavying warre in the Kingdome of Jreland His person here subject for offending against a positive law viz. 25. E. 3. as also for offending against a Statute there made viz. 2â— H. 6. and his possessions in both Kingdomes cleare liable by both statutes The Act of 25. E. 3. is in force in Ireland either by vertue of Poynings law or else by the ancient common law of England which is in force in Ireland 25 E. 3. is b t of the ancient common law declaratory Câ—m â—lees of the Crowne Tit. Treason Treason against the law against the very Law it selfe for he that goeth about to alter the Law or Governement or to oppose it in any hostile or compulsary way as it was proved manifestly he did is a Traitor within 25. E. 3. and leavieth warre against our Soveraigne Lord the King as the words of that Statute are for leavying warre against the Person of the King is included in the first branch of the Act of compassing or imagining the Kings death as the learned know therefore this Clause of leavying warre against the King if taken in the literall sence were not so necessary but because of some great authority in this particular which I have seene I will conclude that if taken in the sence against the the Person of the King yet it is also and most principally a leavying warre against the Lawes and Government a secret which ignorant people know not for they thinke no Treason can be but against the Person of the King now least any man being impeached of High Treason should claime the benefit of this Act which peradventure would prove inconvenient I conceive this clause for some of these reasons added unto this Act. But some will say That his ignorance of the offence Object and his good intentions to his Majesty and the State were a sufficient Apology the which he confirmed by his Speech unto the people at his death I answer If it were so admitted Sol. yet ignoruntia juris non excusat yea the meanest crime of the meanest person is not hereby extenuated in Law but this was a crime of an eminent person the highest offence in Law and of dangerous consequence All Courts of Justice have their Seales viz. C. B. Bleâ—oy this hath â—â—one but this Ergo. There are some Rights of Parliament yet behind as namely the attendance of the great Seale necessarily upon this Court their claime and disposition likewise of the Militia the Navy Forts and Magazins for the defence of the Kingdom as also of the great Offices of the Realme all these nor any of them being the Kings unboubted right Object as he claimeth them For to begin with the Militia which some may say hath been formerly debated in shewing his Majesties raising of Armies illegall and unwarrantable and therefore here it will be but repitition Sol. I answer if it were so yet this being a matter now controverted of so high consequence it should not seeme ungratefull Que repetita placent decies repetita placebunt but to dispossesse you of this fancy you shall finde it not so the discourse of it here you will finde in a larger notion though very briefe then before it was spoken of as
not have been so easily parted withall The positive or the Militia limited by the positive lawes The ancient common law is the onely law positive now in force touching this Militia for Winchester is repealed Then we will leave this branch of the Militia as pertaining to the high Court of Parliament onely and we will come to the other branch of the Militia viz. that which is limited by the positive Lawes viz. the ancient Common Law that being onely in force at this day For this Branch of the Militia therefore and the constituting of the high Sheriffe of the County who hath the power of this Militia so farre as it hath relation to the positive Law yea and in some manner participating also of that great and absolute power The positive Militia in the Sheriffe yea and some shadow of the absolute or generall Militia in him also for he may compell any man within the County but no further for the preservation of the peace thereof to attend the defence thereof even those that are neither bound by Tenure nor Contract although the King hath used to constitute and appoint him by Patent This is but usage clearely for what is not warranted by 9 E. 2 De vicecomitatibus is but usage Nota. therefore the election of such a number by the Judges in the Exchequer the presenting them to the King and his election of one of them I leave unwarranted by this Law Indeed the Letters Patents granted by the King unto this great Officer of his Office I take it are warranted by this Statute Tacitè or by way of incidence or dependancy for all great Offices are to be authorized under the great Seale by Law But peradventure it may be objected Object that Sir Edw. Coke saith in his Magna Charta f. 55. That the persons chosen by the Judges in the Exchequer and the Kings election of one of them are warranted by some Statute in that behalfe and not by bare usage onely To which I answer Sol. That it is of great weight because it was the opinion of the Judges of England in H. the 6. his time but note that Sir Edw. Coke delivereth no opinion upon it himselfe neither is this Statute mentioned either by the Judges at that time nor by Sir Edward himselfe but onely so left but certainly the Statute intended must be 9 E. 2. De vicecomiâ— And it may further be said That it is a rule of Law that Optimus legum interpres esâ— consuetudo and therefore this constant usage since the said Statute is an interpretation of it But what if we should grant this you are still never the nearer the purpose The Militia positive in whom by law vested for here is onely a bare nomination or election of the Sheriffe no right of the Militia Concerning therefore the election of the high Sheriffe of the County there is no negative Law in point to take it from the Subject and anciently I finde clearely it did belong unto the Free-holders of the County by Statute and the Statute of 9. E. 2. 28 E. 1. ca. 8 of election of the Sheriffe in the Exchequer as it is now used is but onely affirmative Object But that I may not subject my selfe unto just censure I will anticipate and prevent what may be objected by the adverse part That these these two Statutes viz. of 28. E. 1. commonly called by Legists Articuli supra Chartas ca. 8. by which the Subjects right in the Militia and the election of the Sheriffe the minister of the Militia appears and the Statute of 9. E. 2. before named are the one contrary to the other in matter and therefore within the rulâ— of Leges posteriores priores contrarias abrogant although they be both in the affirmative To which I answer that they are not contrary in matter they differ onely in circumstance viz. Designation of other persons difference in circumstance no contrariety in matter Câ— 11. Re. Doâ—â— Fosters Case Stamfords prerogative f. 69. â— Two statutes affirmatively authoâ—â—â—â—e severall persons both statutes effectual Crâ— Jurisdiction of Courts 200. â— saith That 32 H. 8. taketh away 8. H. 6. It may be peradventure intended with this difference 28 E. 1. 9 E. 2. designe severall persons to elect the Sheriffe both statutes shall be in force by law Designation of the Persons that are to elect the Sheriffe and the rule of Law is That the designation of one person or persons in an Act of Parliament shall not exclude another person or persons which had authority to doe the same thing by an Act precedent as to put you but one case instead of many by 8. H. 6. ca. 16. The Câ—ancellour Treasurer and other Officers have power to demise Lands and Tenements afterwards 32. H. 8. ca. 46. gives authority to the Master of the Court of Wards with the advise of one of the Counsell of the said Court to demise the said Lands and Tenements mentioned in the former Statute yet this doth not take away the Statute of 8 H. 6. although that this last Act designe other persons for if before any Lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute 8 H. 6. then the Master of the Wards cannot demise and so if the Master of the Wards demiseth first then the Chancellour and Treasurer cannot demise by 8 H. 6. Many more cases I might here insert to cleare this particular come we then to our two Statutes the Statute of 28 E. â— designes the Free-holders of the County to chuse their Sheriffe The Statute of 9 E. 2. Not materiall if 9 E. 2. nullifie 28 E. 1. as you shall see hereafter appointeth the Judges in the Exchequer to chuse him Severall Acts affirmative designe severall persons to elect the Sheriffe both Statutes shall stand saith the Law if the one doth elect according to one Statute the others are fore-closed In statutes introductive the designation of the â—son matter of â—stance not â—umstance and so è contrario and the rule is true The designation of one person is the exclusion of another in Statutes which create a new Law but neither of these Statutes of 28 E. 1. or 9 E. 2. create any new Law concerning the Militia but in the designation of the persons which are to chuse the Militia this last Statute differs from the first therefore we may safely conclude Vbi lex non distinguit nec nos distinguere debemus I have searched all the comers of my heart to avoid Hypocrisie and of my understanding to avoid ignorance and I cannot finde but these cases are alike in Law Negative words alter the law therefore the 28. of E. is still in force and not abrogated Further if the words of this Law had been that they should have been chosen in the Exchequer by the Judges and by no other persons or and not elsewhere then peradventure these negative words
words viz. this shall be the right of the Kings c. From this place of Scripture make you Tyranny the right of Kings for so some of you tender the words and so Ex consequenti the Ordinance of God is Mos Regis jus Regis Is it the right of Kings because the Act of Kings then Murther Adultery c. are the right of Kings and the Ordinance of God so God himselfe is made the Author of all wickednesse a most impious and detestable opinion Yea doth not the practice of the Kings of Israell manifest the same Did Ahab take away Naboths Vineyard as his right without any further proceedings Did he not by pretence and colour of Law take away his life and Vineyard Did he not suborne Witnesses against him This man blasphemeth God and the King was he not much perplexed troubled in minde at Naboths deniall All these things surely had not been if it had been lawfull for Ahab to have taken his Vineyard from him yea what saith God unto him for this Hast thou killed and also taken possession Is this Divine approbation Are either of these Acts allowed or not plainly reproved hast thou taken possession implyeth clearely that Ahab taking Naboths Vineyard was not Gods Ordinance or Law but the wicked abuse of Divine authority Further I conceive upon the Acts of David and Elisha mentioned in the Scriptures it is lawfull to resist Tiranny and abused authority yea that it is lawfull to oppose the Regall power Distinction of the regall person and the regall power by the law of this Realme though not the Regall Person but to leave these things to those that are learned in Theology we will search a little the Lawes of the Kingdom Doe not our Lawes make the same distinction betweene any power ilâ—egally raised by the King and his Person May not the one be lawfully resisted not the other Hath not the Law appointed the Militia of the Kingdome to suppresse any Ryots illegall Assemblies yea though commanded by the King I suppose that may be made a parent enough for put the case that numbers of people being Insidiatores viarum agrorum depopulatores gaine the Person of the King yea his protection under the great Seale Object shall not the Magistrates and Ministers of the Law execute the Law against these persons notwithstanding the King be present with them Sure they may and ought But peradventure you wil say This case is nothing to our purpose they that have now adheared to the King are good Subjects no Delinquents as your instance formerly imports Sol. I answer the reason of the Law is the same in both Cases yea they are delinquents in both Cases that take up Armes without lawfull authority and further they are Traitors also though they aide and assist the Kings person as you may perceive by the former discourse but I will exp laâ—e the Law a little further in this particular 2 E. 3. 8. 14. E. 3. ca. 14. There are two or three severall Statutes in the Raigne of E. 3. and of other Kings of England containing these words or to this effect That the Judges or the Kings Justices shall not delay to doe justice and right yea they are commanded so to doe even in the Kings Case notwithstanding the King by his great Seale or Privie Seale command the contrary But we then the case that the great Seale is sent to stay the course of Justice and the Meâ—seâ—gers thereof be numbers of armed men shall not the Justices oppose this illegall power Shall they not apprehend these persons as Rebels unto the State and Government if they shall attempt the execution of this regall command by force or violence nay The King by divers statutes disabled to raise any Armies of men or to come in any hostile manner to disturbe justicâ— I conceive they are subjâ—ct unto great and severe censure if not Capitall for appearing in Armes in disturbance of justice although they offer no force or violence at all but deliver their Message to the Court. And is it not apparent that these persons shall be empeached as offenders Conâ—ra coronam dignitatem Regis These men Traitors by law though the King present with them f â—n any hostile way they execute his illegal command or indeavour the same notwithstanding the Kings Seale yea if the King shall be present with them this will not aâ—ter the Case the Judges are to execute the â—aw in the Kings name against them and further to pronounce them Traitors if in forceable or hostile manner they shall endeavour to interrupt or hinder the power and authority of the Law here you see the distinction which the Law makes betwixt the Regall person and the regall power Nota. The Kings person not criminous by law and the reason The Kings person is subiect to no debility or imperfection in judgement of Law and therefore no crime or offence can be incident to his person witnesse the Attainder of King H. 7. before he was King resolved by all the Judges that Ipso facto by attaining the regall dignity all attainders of Treason or any other offence were purged and that there needed not any reversall of them in Law and this appeareth in the legall Annals of the said King you may plainly perceive the Kings person uncapable of crime by the Law of this Land his person is sacred and not to be touched with violence yea the Law medleth not at all with his person as being innocent of all crime Regall imputation as to any legall imputation but the power of the King Nota. in what condition it stands you may easily see Which Henry the 7. wisely fore-seeing procured that Act 11 H. 7. ca. 1. before mentioned to exempt the attendants of his person as also of his successors from impeachment knowing that by Law they might become offenders although they followed his person in the Warres and did him true and faithfull service for the defence of the King and the Land The true reason why this act of 11 H. 7. ca. 1. was made because his Title unto the Crowne as the times then were might not prove firme for if his Title by Marriage should have failed Nota. as even the state of Princes is subject unto humane casualty then his attendants in the Warres upon his Person should be in danger of judgement as being raised without lawfull authority so as by this Act if a Perkin Warbecke should attaine the regall dignity lawfully Lawfull viz. by consent of the Realme by authority of Parliament his Attendants in the Warres were by this Act free from impeachment if they declined not from their duty of Allegiance in this Statute mentioned which by Law had not been so if this Act had not made this speciall provision Now you may view plainly the Kings Person and his Power distinguished also you may see in the exposition of this Statute formerly mentioned the same