Selected quad for the lemma: parliament_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
parliament_n	error_n	judgement_n	writ_n	2,659	5	10.1058	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A89520	An argument or, debate in law: of the great question concerning the militia; as it is now settled by ordinance of both the Houses of Parliament. By which, it is endeavoured, to prove the legalitie of it, and to make it warrantable by the fundamentall laws of the land. In which, answer is also given to all objections that do arise, either directly, or collaterally concerning the same. All which is referred to the judicious reader. by J.M. C.L.	Marsh, John, 1612-1657.; Milton, John, 1608-1674, attributed name.	1642 (1642)	Wing M575; Thomason E119_13; ESTC R18112	46,929	48

power or Counsell whatsoever because that in the presence of the most supreme jurisdiction the inferiour ceaseth I do not hereby intend that the power of the Judges in their severall Courts for the dispensation and execution of justice should cease in the Terme for that the Parliament is sitting at the same time And the reason is obvious for that these Courts have their proper and distinct jurisdictions from the Parliament and therefore cannot be superseded by it I intend by this onely that what the Parliament hath declared to be Law cannot as I have said before be countermanded by any other inferiour judgement whatsoever for that where the powers exercise the same jurisdiction they cannot both stand together but the greater will cashere and suspend the lesse so I say in our case But here it may be objected that the King is fons Justitiae that is the fountain of Justice and that he onely as Bracton saith Bract. fo 55. b. Ordinariam habet iurisdictionem dignitatem potestatem super omnes qui in regno suo sunt habet enim omnia iura in manu sua c. And a little after he saith Ea quae iurisdictionis sunt c. ea quae sunt Justitie c. annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam that is those things which appertain to jurisdiction and justice belong to no body but the Crown and royall dignity And as all justice and jurisdiction is primarily and originally in the King so they cannot be exercised by any other except that they be first delegated to them by the King And so saith Bracton a little after Jurisdictiones c. non possunt à privata persona possideri nec usus nec executio iuris nisi hoc datum fuorit ei desuper that is no jurisdiction nor execution of the Law can be exercised by any private person except that this power be first given unto him from the King So Bracton treating of jurisdiction saith Bract. fo 107. ● Videndum c. quis primo principaliter possit debet iudicare that is let us see who first and principally may and ought to judge And then he answereth Sciendum quod ipse Rex non alius si solus ad hoc sufficere possit eum ad hoc virtute sacramenti teneatur astrictus that is we must know that the King onely and no other if he alone may suffice For that he is bound to do it by vertue of his Oath And after in the next Chapter speaking of jurisdiction delegated he saith Bract fo 108. a Si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor c. he may saith he Constituere Justiciarios c. quibus referantur tam quaestiones super dubiis quam quaerimoniae super iniuriis c. that is if the King alone cannot suffise to determine all causes that his labour may be the more easie he may constitute Justices to whom as well doubts in Law may be referred as complaints upon injuries And in pursuance of this the King not possibly suffi●ing to exercise all jurisdiction himself hath in all ages delegated power and jurisdiction to a certain number of men and hath constituted them Judges and dispensers of the Law under his Majestie and in his right an 〈◊〉 to his people Now all this being admitted as in truth it cannot be denied the force of the objection stands thus is it so that no jurisdiction can be exercised by any except that it be first delegated to them by the King and that the King hath constituted certain persons to be his Judges of the Law why then it lieth not in the power of the two Houses of Parliament to declare what is Law and what not First because that they are not the proper Judges of it And secondly because that they have no such power given unto them by the King for what power they have it is derived by their Writ by which the King calleth them to Parliament and this onely requireth their presence Super dictis negotiis tractaturis and tractare is onely to treat of or debate the Law not to declare or give judgement what the Law is Besides this word tractare is contained onely in the Writ by which the Lords are summoned to Parliament and not in the Writ of the Commons for by that they are called onely as I remember the Writ is ad faciendum consentiendum to do and agree why then they have no such power to intermeddle with the debating of the Law much lesse to declare what the Law is To which I answer That the two Houses of Parliament conjoyned for I speak not of the power of the House of Commons distinct and by it self may not onely declare what the Law is but are the best and most proper Judges of it Are not they the ne plus ultra that the Subject hath for redresse in matter of Law are not they as common experience teacheth us the supreme Seat of Judicature and do not they exercise a superintendent jurisdiction over all other Courts and have not they power by a Writ of Error brought before them to reverse Judgements erroniously given in other Courts Without doubt they have witnesse that case of the Ship-money which Judgement could not possibly have been reversed but by the Parliament who upon debate declared that Judgement to be against the Law and how miserable this Common-wealth had been if they had not had this power the lamentable successe of devesting of the Subjects property without his consent by that damnable judgement contrary to all Law would have in short time been manifested to the whole world But to this it may be said that in these cases the Judges advise who sit as assistants in Parliament is demanded and that in such case the King by his Judges doth declare what the Law is To this I answer that because the Parliament may demand the advise of the Judges who sit there to that intent will it therefore follow that they are tied to it or having demanded their advise must the consequence be that they are bound to follow it without question nothing lesse for this were to tie my judgement to another mans principles which ought not to be And it were absurd for to think that the Parliament who are the supreme seat of Judicature should be tied to subscribe to the judgement of any inferiour power whatsoever And now I shall put you one case posito that all the Judges of England assembled together in the Chequer Chamber to give judgement in a point of Law should all concurre in their judgements and should give judgement accordingly and after in a Writ of Error brought in Parliament this judgement should be reversed doe not the Parliament onely in this case declare what the Law is Without question they doe for I suppose that there is none so stupid as

to thinke that the Judges advice or judgement ought or can be received in this case for this were upon the matter to appeale à Caesare ad Caesarem and to reverse that Judgement though not by the same power yet by the same advise that gave it which as I conceive by the Law ought not to be But here peradventure it will be againe objected that no Writ of error can be brought in Parliament but that the King first signes to it 1. H. 7. 19 ●… and this is a consent by the King a giving of them power to proceed and declare what the Law is but in our case there is no such thing for here is nothing judicially before them by which to authorise them to give any such judgement and therefore they have no such power to declare what the Law is in this case and if they doe their proceeding is extrajudiciall and arbitrary To this I answer that true it is that they cannot nor ought not to take notice of any thing which concerneth any private persons or their interest neither can they in any such case give Judgement or declare what the Law is except they have something judicially pending before them upon which to ground their judgement but otherwise it is where it concerneth the Common-wealth for there I conceive under favour especially as in this case in time of imminent danger they are not tied to any legall way of proceeding but they may and are bound as well by their Oaths of Alleageance Supremacy and their late Protestation as by their Writ by which they are called to Parliament to take notice of all things which may be obnoxious and prejudicall to the Common-wealth and to debate determine and declare the Law concerning them though that they have nothing judicially before them for if they should in this case expect a complainant the Common-wealth might perish before that they could yeeld any ayde or assistance for the securing of it Now by their Oaths they are bound to defend the King and Kingdome as I have before said and by their Writ they have power and authoritie given them De imminentibus periculis tractare and tractare doth not onely signifie to handle treate of or debate but likewise it signifieth as the learned observe to order to governe to write of or to describe and without question these words have weight sence and power enough in them not onely to inable them to debate what the Law is but also to declare what it is after that it is debated so that I conceive by this it is cleare that the Parliament doe not exercise practise or endeavour any arbitrary way of proceeding And the difference as I concelve upon the whole matter will be this that the two Houses of Parliament cannot as I have shewed before make a new Law or alter the old Law without the consent of the King and this by Act of Parliament but they may declare what the Common Law is and this shall be obliging to his Majestie for otherwise this great Court which so farre transcends all others in other things should be lesse in power in this particular then any other Which ought not to be conceived or imagined Now this being Law which I have delivered as I conceive it is from hence these Conclusions may necessarily and by consequence be deduced First that the declaration of the Law to be otherwise by the Proclamation or other Declaration of the King doth not change the Law for that it is a Rule in the Law that the King can neither create a Law nor alter the Law by his Patent or Proclamation And with this agreeth 49. Ass 37. H. 8. Br. Patents 100. 11. H. 4. 10. H. 7. 5. Rep. 49. Ass Pl. 8. 37. H. 8. Br. Pat. 100. 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo 55. and many other Books Secondly Hence a good argument may be deduced to prove the Commission of Array at this time illegall for that the King with the advice of his great Counsell the Parliament hath by a tacite and inclusive consent as I have made it good before established the Militia why then clearely it lieth not in his Majesties power without their consent to countermand this by any other Commission for the Rule of Law is that Eodem modo quo quid constetuitur dissolvitur that is every thing ought to be dissolved by a matter of as high nature as it was created and that is the reason that an Act of Parliament cannot be repealed but by an Act of Parliament for that no power or jurisdiction whatsoever is so great as it selfe and it is without question that the Kings power or authoritie by it selfe is not of so high and excellent a nature as it is joyned with his Parliament Wherefore I doe conceive for this reason that the Commission of Array is absolutely unlawfull and therefore ought not to be submitted unto Thirdly and lastly Hence may be concluded that the Kings declaration of the Law to be contrary to what the Parliament have declared the Law to be is Coram non Judice that is by one that hath not jurisdiction of the cause First Because as I have said that the King himselfe cannot declare the Law to be contrary to their judgement for that his Majesties judgement is superseded and bound up in theirs and secondly For that he cannot contradict their judgement by any other advice or judgement for that that advice or judgement is inferiour to the Court of Parliament and therefore in their presence as to this purpose ought to cease And I shall compare this case to one case onely which is in the 10. Rep. in the case of the Marshallsea 10. Rep. fo 7●… the case of Marshallsea where the case is thus The Sheriffe who is prescribed by the Law to hold his Tourne within the Moneth after Mich. c. held his Tourne after the Moneth and tooke an indictment of Robbery at the same Tourne and the Indictment being removed by a Cerciorari into the Kings Bench by the advice of all the Justices the partie so indicted was discharged for that the Indictment was utterly voyde and Coram non Judice because at this time the Sheriffe had no authoritie to hold his Court so I say in this case the Declaration or Proclamation of the King is Coram non Judice for that though the King properly and onely ought to declare the Law by the advice of his Judges at another time yet at this time he cannot for that their judgement is estopped and superseded by the superintendency of the high Court of Parliament Then the Law being thus this justifieth the proceedings of Parliament in punishing of such who dare adventure against Law to execute the Commission of Array or to proclaime or declare any thing in his Majesties name against his owne judgement and the judgement of his Parliament for the Rule of Law is Extra territorium jus dicenti non

provide for the securing of my person and estate from perishing in the common ruine Secondly It is Religion that these cruell barbarous and unheard of Tyrants make for a ground of their horrid Rebellion and what stronger ingagement can there be then this for to incourage and spurre men forward in any desperate designe Especially those of the Popish faction who may have a pardon before-hand for the act they shall commit be it never so desperate And doe we not thinke that this will be a strong incitement to men who conceive themselves tyed in conscience to undertake that which they doe to wade through any misery for the accomplishment of their desired end knowing before-hand that they have a pardon for the most horrid act or attempt that they can doe conducing to the perfecting of the same And then as this obligeth all Nations besides of the Popish partie ought not we to thinke and beleeve that such an opportunitie must of necessitie stimulate them forward to be ayding and assisting to such a designe which will infallibly at the last merit either Heaven or Hell I am confident and it stands with all reason that it should be so for that they have not for a long time praysed be God had the like opportunitie that the Pope with all his adherents are now plotting and contriving with their holy Father the Devill to operate the ruine of the Protestant Religion and shall this ingage them to fight against God under a pretence of being on his side And shall it not invite us who fight for God and his truth which we have so long time happily peaceably through Gods goodnesse enjoyed to prepare our selves and all that we have for the desence of the same To conclude this we who have the greatest part of the world our enemies may justly feare that they are now plotting and contriving that for England that is already acted in Ireland And let us not say that they are at enmitie one with another and therefore are not at leisure to harme us for we may be sure that they will shake hands to doe us a mischiefe according to that in holy Writ of Pilate and Herod who though they were utter enemies one to another yet they were made friends to combine against Christ ●…uke 23. 12. Thirdly and lastly who is able to say that either he or his children shall live to see an end of that bloudy persecution and rebellion and what the successe of it will be True it is that God hath hitherto gone forth with our Armies and hath in an exceeding measure and above all expectation blessed their endeavours and crowned their actions with a happie successe God be praised for it but yet who knoweth whether they shall ever be able to root out this rebellious Tribe I speak not this out of any diffidence of Gods continued favour and goodnesse towards us or to make others mistrust but onely to demonstrate that there is a just cause of feare for who can divine what the event of warre will be Exitus belli incertus that is the issue of warre is uncertain Besides and which brings me to my second ground of our just and dreadfull feares if the distractions of this Kingdome continue which God defend what ayde can they expect from us who are like to be surrounded with the like misery so that their necessitie may cutt them short of their hopes and by this much adde to our feares Secōndly having shewed our just cause of fear which riseth ab extra from our deplorable brethren and neighbours now I shall shew our cause of fear that ariseth ab intra from the unhappy distractions which are risen amongst our selves Who is it that doth not see the sad divisions and generall sidings throughout the Realm which hath grown upon this unhappy division of the King and Parliament which when it will be reconciled God knoweth And if this which adds much to our miserie had not happened we could not before have been secure without a just cause of fear for what divellish plots and fearfull designes have been discovered through Gods mercy and the vigilant eye of the Parliament tending to the destruction of our best birth-right and inheritance the priviledges and freedome of Parliaments Without the continuance of which that which is nearest and dearest unto thee whether it be thy Religion life or liberty what ever it be that thou most blessest thy self withall will then depend upon the Arbitrary will of thy Soveraign so that thou mayest not then stile ought that God hath given thee thy own which heavy judgement I beseech God to divert from this sinfull Land and Nation for we may truly acknowledge that it were just upon us that we who have so much abused Gods blessings should now be deprived of them and that we who have so much abused the freedome of conscience of our laws lives liberties and estates should now be subjected to a perpetuall slavery Now to conclude this likewise divide the Kingdom into foure parts and I am confident that the Papist Newter and Cavalier I might adde likewise the domineering proud Clergy who would fain reduce all things to their late condition who lie perdue and wait for an opportunitie for to bring a speedie destruction upon this Common-wealth will make two parts I think I might without any imputation or prejudice to judgement say three parts of the foure and now put all these things together and I beleeve that no indifferent understanding man but will be forced to confesse that there was and still is a just cause of fear and of putting of the Kingdom into a posture of warre And then the imminent danger being pregnant and demonstrable to all the world the last question is taken away But admitting that it were not prospicuous and visible to all then the question is who is the proper Judge of this imminent danger and I conceive plainly under favour that the Parliament ought to be and no other and my first reason is grounded upon the rule of Law viz. that the Parliament can do no wrong which is warranted by the 9. Rep. the 6. Rep. ● Rep. 106. b. ●07 a. ● Rep. 27. b. ●… a. and many other books And in Pl. Com. it is said Pl. Com. fo 398 that the Parliament is a Court of thrice great honour and justice of which none ought to imagine a dishonourable thing And this I conceive to be grounded upon the Writ of Summons to Parliament which wils that the elections should be De gravioribus discretioribus viris c. of the most grave and discreet men And Fortescue speaking of the Parliament saith Fortes ca. 18. We ought necessarily to think that the Statutes of this Realm are made with great wisdom and prudence Dum non unius aut centum solum consultorum virorum sed plus quam trecentorum electorum hominum quali numero olim Senatus Romanorum regebatur ipsa sunt edita For

without reason for as it is well knowne they have published the justice and integritie of their cause to the whole world and have left their proceedings to the judgement and determination of every private conscience so that cleerely this objection holds not Then if the judgement of Parliament be our judgement what else doe they then oppose their own judgement who dare oppose the judgement of Parliament which is folly and what else doe they but preferre their proper and private judgement before the judgement of the whole Parliament which is an extreame insolency for that they represent the whole Kingdome and are the most worthy part of it and for that we have as I have said before bound our selves by our owne consent and election to stand to their judgement and determination Wherefore for all these preceding reasons I conclude this point that admitting the imminent danger were not perspicuous and manifest to every eye that the Parliament as they are the most proper Judges so they ought to be the onely Judges of it and no other person whatsoever Now for the Objection that many of the Lords and Commons did never consent to the Ordinance of Parliament for that they were with his Majestie and that therefore this should make their determination invalid and ineffectuall This is a more strange objection then the other for that it is against the rule of Law that any man should take advantage of his owne wrong and it is cleare that after the Parliament is once begunne their personall attendance is so necessary and of such importance to the Parliament that they ought not by the Law for any businesse whatsoever to be absent and so is Dyer Dyer fo 6●… And by the Stat. of 6. H. 8. it is enacted 6. H. 8. ca. ●… that no Knight Citizen or Burges absent himselfe without licence of the Speaker and Commons under the paine of the losse of their wages And in 3. E. 2. Fitz Corone 61. cited in Crompton Jur. 3. E. 2. Fit●… Corone 6●… Crompt Iu●… Courts fo ●… the Bishop of Winton was arraigned in the Kings Bench for that he came to the Parliament and departed without licence Why then is it so that their withdrawing of themselves is a crime in them Shall they then take advantage of this offence and neglect of theirs of the Weale publique for the good of which they were called and assembled together to avise certainly not Besides if this objection might hold who is it that doth not see what the inconvenience might be Et argumentum ab inconvenienti est bonum in lege an argument drawne from inconvenience is good in Law For by this invention the conclusions and determinations of those who are present intending the Weale publique as in dutie they are bound should be all frustrated and annihilated by the absence of those who voluntarily and against Law withdraw themselves which would be destructive to all Parliaments For posito that all the Lords or all the Commons should voluntarily and out of an indisposednesse to the common good withdraw themselves and utterly refuse to performe that trust which is reposed in them of counselling and consenting to such Lawes which might establish peace and a settled condition in Church and State will any man thinke that if in this time of dissertion of the Lords or Commons there be an apparent imminent danger threatning ruine to the Common-wealth if it be not in an opportune and seasonable time prevented that in this case it lies not in the power of the King and Lords or of the King Commons onely as the case is by way of Ordinance to settle the Kingdom in such a state and temper as may prevent any approaching misery Without question it doth or otherwise this conclusion as I have said before would be destructive to all Parliaments I agree that an Act of Parliament cannot be made by which a new Law should be enacted that should be obligatory to the Subject for ever I meane untill it were repealed by another Act but by the consent of the King Lords and Commons and with this accords the Books 4. H. 7 ● H. 7. 18. there an Act was made by the King and Lords but nothing was spoken of the Commons and by all the Judges this is no act of Parliament 7 H. 7. ● H. 7 14. No Statute except that the Lords and Commons assent to it And 11. H. 7. ●… H. 7. 27. it is no act of Parliament except it be made by the King Lords and Commons By this it is manifest that all the three Estates ought to joyne in the making of an act of Parliament and this is so cleare that I need not cite any other authoritie in proofe of it for ou● Books are plentifull in this point Onely I shall remember one remarkable case which I finde in our Law to prove that the Books which say That an Act of Parliament cannot be made without the consent of the Lords that this ought to be intended of the Lords Temporall onely and not of the Lords Spirituall and therefore it is resolved by the Judges in 7. H. 8. Keilway ● H. 8. Keil●●y fo 184. b. that the King may well hold his Parliament by him his Temporall Lords Commons without the Spirituall Lords so that by this it was manifest that they were not essentially necessary to a Parliament for that the King might have holden a Parliament without them and therefore it is not now so much to be wondred at that they are totally excluded by Act of Parliament But now on the other side I conceive as clearely under favour that if the King do utterly forsake them and decline their advice and counsell to which he ought to adhere during Parliament that in such case they may as I have said before make such Ordinances without him for the securing of the Kingdome in case of exigency and extremitie as shall be obligatory to all the Realme pending Parliament for otherwise they should have the name of a Parliament onely not the power and vertue of it But now it may be objected that the King by his Prerogative may call a Parliament when he pleaseth and also adjourne and dissolve it when he pleaseth and that the power given by the Writ of Summons of the Lords to Parliament is onely ad tractandum consulendum c. and therefore it will be concluded that by the same power the King may command his Counsellors whither he pleaseth To this I answer and agree that the King may call or dissolve a Parliament when he pleaseth and so totally toll their power but yet under favour pending Parliament unadjourned the King can neither retarde their proceedings nor take away their persons and that I shall prove thus the King as fons Justitiae the fountaine of Justice from whom all Judiciary power is derived may likewise make whom he pleaseth to be a Judge to dispence the

Lawes in justice and equitie unto his people but will it therefore follow that when he hath made such and such to be his Judges that he may either retarde their proceedings or countermand their judgements under favour nothing lesse Againe as I have shewed before they are punishable by the Law for withdrawing of themselves and it were hard that the King should have power to command me that act which being done subjects me to a severe punishment Now for that part of the objection that they are but his Counsellors and not his Judges to that I shall give as I hope a full and satisfactory answer afterwards And now I shall conclude this first ground or reason with another answer to the objection against the imminent danger and this I ground upon the words in the Kings Writ by which he summons the Lords to Parliament in the body of which Writ he saith Mandamus quod consideratis dictorum negotiorum arduitate periculis imminentibus cessante excusatione quacunque dictis die loco personalitèr intersitis nobiscum c. that is we command you that considering the greatnesse of the businesse and the imminent dangers laying afide all excuse you be personally with us the said day and place c. Here the King by his Writ saith expressely that at the time of the calling of this Parliament there was an imminent danger and as now it should be dishonourable for the King to contradict himselfe so I doe not conceive that he shall be received to deny that extrajudicially which he hath confessed by his Writ judicially But to this it will be said that the Writ Est breve formatum that is it is a formed Writ or a Writ of course and that there is no other and that from this there is no varying so that be the occasion of calling of the Parliament what it will the same form ought to be pu●sued and no other and therefore it is no concluding reason that there is an imminent danger because the Writ saith so To this I answer that we ought not to presume that the King will speak any thing in a judiciall way as here he doth which should be vain and superfluous besides if you consider the time in which this Parliament was called when that the Scottish Army was in England and at which time such distractions and rumours of warres did I say rumours of warres I might have said Warre it self was amongst us when that the extreme insolencie and pride of the Clergie together with the darknesse of superstition and Popery had almost overwhelmed this Nation with imminent destruction and misery the fear of which doth yet cloud the face of the poore Commonalty I say these things considered we may justly conclude that the King at that time spake as he intended and therefore certainly now he shall not be received to contradict it Wherefore I conclude this first reason that by reason of the imminent danger which threatens the Common-wealth the King refusing to settle the Militia the Parliament may well do it Secondly I hold that the Parliament may do it for that the King by his refusall hath made a breach of that trust that is committed to him by God and his people that there is a trust committed to him and that the greatest also that any one under God can have I have in part demonstrated it before for I have shewn how that he is bound by the Law to defend and protect his people their lives liberties and estates from any forrein or domestick danger and saith Fortescue ca. 13. cited before ●●●tesc ca. 13. Rex ad tutelem legis corporum bonorum erectus est he is erected King for this purpose and intent to defend the Law the bodies and goods of his Subjects And he saith himself as I have likewise shewed before in the Commission directed to Commissioners of Sewers that by reason of his royall dignity Astrictus est ad providendum salvationi regni sui He is bound to secure his kingdom And this he is bound to do by the Law and Justice for he ought to rule according to Law and for this purpose he is intrusted with the Law also and therefore in 8. H. 7. it is said 〈…〉 7. fo 1. 2. that the King is conservator of the Law the which is the Common-weal As if it had been said the Common-weal depends upon the Kings well keeping and observing of the Law And in many places of Bracton amongst which this is one fo 55. b. he saith ●●●ct fo 55. b. Sciendum quod ipse Dominus Rex ordinariam habet jurisdictionem dignitatem potestatem super omnes qui in regno suo sunt habet enim omnia jura in manu sua quae ad Coronam laicam pertinent potestatem materialem gladium qui pertinet ad regni gubernaculum habet etiam iustitiam iudicium quae sunt iurisdictiones ut ex iurisdictione sua sicut Dei Minister tribuat unicuique quod suum fuerit that is we must know that the King hath ordinary jurisdiction and dignitie and power above all which are in his kingdom for he hath all the Laws in his hand which do pertain to the Crown and lay power and the materiall sword which belongeth to the government of his kingdom he hath also justice and judgement which are jurisdictions that by his jurisdiction as Gods Minister he may give to every one that which is his own Here you may see that the King is intrusted with the Laws and Justice as also with the materiall Sword to this end that he may defend his people committed to his charge as well by force if occasion be as by righteous judgement And to this also he is bound by his Oath as I have said before which I find in Bracton fo 107. Bract. fo 107 a. ca. 9. by which he sweareth that In omnibus iudiciis aequitatem praecipiet c. ut per Justitiam suam firma gaudent pace universi that is that he will use equitie in all his judgements that all men may injoy a firm peace by his justice And there he further saith that ad hoc creatus est electus ut iustitiam faciat universis c. quod iustè iudicaverit sustineat defendet c. He is created and elected King for this purpose and intent to do justice to all men and that he should judge justly sustain and defend them And with this accords 6. H. 7. where it is said 6. H. 7. 16. that the King is bound for to do right to parties And as he ought to rule according to Law so he himself ought to be governed by the Law as I have shewed before And as Bracton saith Bract. fo 5. b. fol. 5. b. Ipse autem Rex non debet esse sub homine sed sub Deo sub Lege quia L●x facit Legem The King ought not to be under man but

to be regularly true in the Law that that which is not grantable is not forfeitable yet God forbid that his great Counsell for his misuser or non-user of his Kingly function should not have power for the breach of this tacite condition to apply themselves by all lawfull meanes for the securing of him and his Kingdome I shall compare this case to one case onely lately adjudged viz. Hill 17. Car. in the Kings Bench Langhams case Hill 17. Car. in Banco Regis Langhams case where the case was thus Langham a Citizen and free-man of London was elected Alderman of the Citie and being called to take his Oath refused for which he was committed to prison by the Court of Aldermen upon which he prayed his Habeas corpus in the Kings Bench and it was granted unto him and upon the returne of the Writ they did alledge that they had this custome that if any man were elected Alderman of the Citie and refused to take the Oath that the Court of Aldermen had used time out of minde to imprison the party so refusing and then they set forth de facto how that Langham being a Citizen and free-man of London was duely elected Alderman of such a Ward and that he being called to take the Oath refused and that therefore he was committed by the Court of Aldermen and the question here was whether the custome to imprison the body of a free-man were a good custome or not and it was resolved upon solemne debate by all the Judges of the Kings Bench that the custome as this case is is a good custome and this is the difference that was taken by them that a custome generally for a Court of Record to imprison the body of a freeman is no good custom for that it is against the libertie of the Subject and Magna Charta by which it is enacted Quod nullus liber homo capiatur aut imprisonetur c. that is that no free-man be taken or imprisoned 9. H. 3. ca ●… but Per●legem terrae c. by the Law of the Land But a custome as in this case for to imprison the body of a freeman for refusing to take an office upon him which is for the support of government and without which government cannot subsist which by consequence strikes at the very esse and foundation of the Common-wealth for that it cannot stand without government such a custome was resolved to be a good custome Now I shall compare this case with the case in question it is here resolved that a custome for to imprison the body of a freeman for refusing to do such a thing which by consequence reflects upon the Common wealth and may indanger it that this is a good custome now thus stands the paralell and as the rule of Law is Vbi eadem ratio ibi idem jus where there is the same reason there ought to be the same Law Now the same Law that defends the Kings prerogative from violation or seperation from the Crown doth as strongly Et eodem jure by the same right defend the liberty and freedome of every private mans person from imprisonment for though the interest and priviledge of the King doe farre transcend any singular and private persons being compared with them yet they stand in equipage In equali jure that is in equall right being compared with the Common-weale and therefore aswell the interest of the King as of his Subject Debent cedere Republicae ought to give way to the Common-wealth And yet we see that as a mans person for the good of the Common-wealth shall be set at large and free from imprisonment as it is resolved in 36. 37. H. 8. Dyer 36. 37. ●… Dyer fo ●… Trewynni●… Case Where a man was elected a Burges of Parliament and being in execution was let at large by a Writ of priviledge and adjudged that his inlargement was lawfull and that the Sheriffe was by this excused So on the other side a free-mans person by a private custome contrary to Magna Charta may for the good of the Common wealth be imprisoned and without question the Subject may as justly demand of the Law the freedome of his person from imprisonment as the King of his prerogative from violation or separation and yet no priviledge no not of the person it selfe of a common person ought to be preferred before the common good and by the same reason not any priviledge of the King for though the King be much greater and much to be preferred before many thousands of individuall or particular persons yet without question the universe or Common-wealth is to be preferred before the King or any interest or priviledge whatsoever of his so that for all these reasons I conceive that the prerogative of the King may as this case is be severed from him and therefore that the Parliament admitting that they have taken it from his Majesty have done no more then what is warrantable by the Law But now if all that I have as yet said will not sufficiently justifie the Parliament in their proceedings concerning the Militia I shall adde a third reason to prove that what they have done is lawfull and that is this what they declare to be Law bindes the King by an inclusive judgement then their judgemennt being the judgement of the King and their Votes and Declarations of the Law including the royall assent and declaration the King cannot afterwards by a subsequent Declaration countermand his own judgement tacitly included in theirs and by consequence the prerogative of the King suffers no violence for Volenti non fit injuria that is a man that consents to the doing of a thing is not injured by the thing being done Now that their Declarations of the Law includes the King and shall binde him I shall presently prove it First it is cleare that the Parliament consisting of the three estates viz. of the King Lords and Commons are a Court and it is as cleare that they are the greatest and highest Court in England in which Justice is administred by the King in those Worthies unto his people in the most high and transcendent way that can be for the King doth not appeare with that splendour and brightnesse of Justice and integritie neither is he so true and clearely represented to his people in those glorious rayes of his in any Court of Justice whatsoever as he is in his thrice great and honourable Court of Parliament Now that it is a Court and that the greatest Court in England in the 9. Rep. Epist. ibidem ●…p Epist 〈◊〉 my Lord Cooke saith that among other appellations it is called by the name Magnae Curiae c. of the great Court and in Pl. Com. fo 388. 〈…〉 fo 388. the Parliament is a Court of thrice great honour and justice c. and Bracton 34. a. 〈◊〉 fo 34. a. Rex habet c. Curiam suam viz. Comites Barones