HAving firſt received, by the publiſhed Votes and Declarations of both Our Houſes of Parliament ſeverall informations of evident and imminent danger unto Our Kingdome, from enemies abroad, and at home, and finding that Our Commiſsions of Lieutenancie (although Wee did ſince the beginning of this Parliament grant the like for the County of Yorke, to the now Earle of Eſſex, with the privitie of both Our Houſes of Parliament, and without exception from either; and that the ſame was the meanes for defence of this Kingdome uſed in the happy times of that good Queene Elizabeth, and Our bleſſed Father, and confirmed as well by the opinions of Iudges and Lawyers, as the univerſall obedience of the Subjects) were all of them,without hearing any of Our Councell learned, voted illegall, and by Our Houſe of Peers called in to be cancelled; And that thereupon Our Kingdome lay open and expoſed to all dangerous attempts without other proviſion then of a late pretended Ordinance of both Our ſaid Houſes; which (being made without Vs, and contrary to Our expreſſe will declared, and after it had beene twice refuſed in Our Houſe of Peeres, and after the departure of a major part of the Peeres) was ſo farre from being a meanes to prevent danger, that if it ſhould have beene admitted, it would in all probabilitie, have beene the ready way to confuſion, and ruine, as being made in an unparliamentary, unpreſidented, and unjuſtifiable way, and therefore of a moſt dangerous conſequence, both to Vs and Our people, as well in that particular, as in the Example.

Wee did therefore for the avoyding of the perill of delayes, and expence of time in diſputes, iſſue forth ſuch Our ſeverall Commiſſions of Array into Our ſeverall Counties, as upon great advice, Wee conceive were not only ſecured for, but alſo might well be moſt ſatisfactory unto both Our Houſes, as being beyond all juſt exception in the point of Legality, Danger, or Inconvenience, the ſame having beene heretofore moſt deliberately agreed upon, and ſettled (as Wee ſhall herein ſhew) in, and by the care and wiſedome of the Parliament, held in the fifth yeare of King Henry the fourth.

And Wee expected for this Our ſo Princely care of Our People, and obſervance of Our Lawes, rather the dutifull thanks of both Our Houſes, then the returne of ſuch an Anſwer or Declaration as cauſeleſly imputes to this Our ſo well intended and juſtifiable an act, not onely (upon miſ-conſtruction and miſ-application of ſeverall Acts and Declarations in Parliament) the taxe of illegality, but alſo marketh it (upon the miſ-repreſentation of divers powers, and omiſsion of divers Limitations in Our Commiſsion) with the brand of extream danger, and inconvenience thereby to Our people, and of an heavier yoke of Bondage then either that of the late Ship money, or any other charge taken away this Parliament.

In all which, for the better and further ſatiſfaction of Our well-affected people, and to ſave them (if poſsible) from incurring any danger either by obeying that Ordinance, or diſobeying Our Commiſsions, (in both which We are reſolved to require a ſtrict examination and account) We have taken the pains to examine the ſaid Declaration, and the Objections therein againſt Our Commiſsions.

And for the better understanding of the ſeverall particular doubts which are now raiſed thereupon, We hold it neceſſary in the firſt place, to ſet forth the true end of theſe Commiſsions, with the ſeverall Powers and Limitations thereof, which by this Declaration are drawne into queſtion, together with the ſeverall miſ-repreſentations thereof in this Declaration.

The Subjects being of three ſorts; Some having good eſtates, and able bodies; Others, being of good eſtates, but impotent; Others, able of body, but not in eſtate: And the ſervice required, being for the neceſſary defence of our Kingdome in generall, in the time of danger.

The Commiſſioners are to cauſe thoſe of the firſt ſort, to Arme themſelves according to their degree and eſtate, (and ſerving in Perſon, they are not bound by this Commiſsion to find Arms for any others.)

Thoſe who (having eſtates) are not able to ſerve in Perſon, are to be aſſeſſed, and may be diſtrained to finde Arms for others, according to the quantity of their Lands and Goods; But with this Limitation, prout rationabiliter portare poterunt, & ſalvo ſtatu ſuo; that is, That they be charged but moderately, and ſo as they may live ſtill, according to their former condition.

As for thoſe of the third ſort, who are not able to Arm themſelves, by this Commiſsion, as it was altered by common conſent in 5. H. 4. (for it was otherwiſe before that time) they are not (as to this matter of Arming) medled withall.

And therefore this part of the Commiſsion is miſ-repreſented in the Declaration. Which ſuppoſeth a Power given by this Commiſsion, to charge all men without diſtinction, with Arms, at the diſcretion of the Commiſsioners, without Limitation; and thoſe that are able, to finde Arms; and ſuch as are impotent, to finde men at Arms, according to the quantity of their Lands and Goods; And alſo wholly omits the manner of the charging them, which is to be moderately, and ſo as they may ſtill live, according to their former condition

The Commiſsion having thus, with equality, and indifferency, charged Our Subjects with proviſion of Arms, it further provides for their calling together, training, and exerciſing, not (as it is in the Declaration) generally at the pleaſure of the Commiſsioners, without reſtraint either of time or place:) But that they ſhall be called together, ad certos dies & loca quos videritis magis competentes & expedientes, & pro populo noſtro minùs damnoſos; At ſuch times and places as the Commiſsioners ſhall thinke to be moſt fitting and expedient, and leaſt hurtfull unto the people.

And having thus provided, for the Arming and preparing Our Subjects for defence of the Kingdome; In the new place, the Commiſsion gives power to the Commiſsioners, to leade them to the Sea-coaſt, or elſe-where; but not at the pleaſure of the Commiſsioners, (as may be inferred out of the Declaration) nor without Limitation, (though omitted alſo in the Declaration) But the Commiſsion provides, That they are to be led to the Sea-coaſt, or elſe-where, ubi ac quoties neceſſe fuerit ad inimicos noſtros expellend. debelland. & deſtruend. cum periculum immineat; At ſuch times and places as it ſhall be neceſſary for the expulſion, vanquiſhing, and deſtruction of Our Enemies, when there ſhall be imminent danger. And it further provides, in another part of the Commiſsion, That they ſhall be conducted; cum periculum imminuerit in defenſione Regni & Patriae tam ad Coſterum Maris, quàm alia loca ubi magis neceſſe fuerit, In caſe of imminent danger, for defence of the Kingdome and Countrey from time to time, as well to the Sea-coaſt, as other places where it ſhall be moſt neceſſary.

And although notwithſtanding all theſe limitations and cautions, it be true, That in this charging of Arms, as alſo for the times and places of calling together Our Subjects, and of conducting or leading them, and the dangers upon which they are to be ſo conducted and led, much is left to the diſcretion of the Commiſsioners (as it muſt of neceſsity in all Commiſsions, where the places, times, and occaſions of execution of them depend upon future accidents and circumſtances, and cannot be certainly knowne, or deſcribed at the time of the iſſuing of the Commiſsions.) Yet nevertheleſſe it cannot be inferred thereupon, That therefore Our Commiſsioners have a meere abſolute arbitrary Liberty of Will to doe what they pleaſe. But that if they ſhall wilfully and unjuſtly grieve any of Our good Subjects, in exceeding or not obſerving Our Limitations or Directions, they are, by Law, clearely puniſhable by Indictment for the ſame: Nor are, or ſhall any of Our Subjects ſo grieved, be without remedy or reliefe.

And to the end that every County, ſo farre as in Vs lyeth, ſhould have cauſe to reſt the more aſſured againſt any evill uſage and abuſe; By this Commiſſion Wee have appointed for Commiſſioners, ſuch as have eſtates in the ſeverall Counties, and are Perſons of Honour and Reputation, who are not onely engaged to all fairneſſe out of their owne intereſt, but alſo in the concernment of their Poſterity, Kindred, Alliance, Friends, and Tenants, and the good affection of their Countrey, which to Perſons of ſuch Condition as they are, is of a conſideration beyond their Fortunes; So that Wee hope their forwardneſſe in undertaking this trouble for the publike defence, will occaſion in Our good Subjects, rather a willing obedience unto Vs, then the leaſt diſtruſt or jealouſie of any of them.

Having thus ſtated the ſubſtance of Our Commiſsion, and prevented that miſ-underſtanding, which this Declaration might have elſe begotten thereupon; Wee (in the neceſſary juſtification thereof, and vindication of Our owne Honour, againſt thoſe expreſsions in that Declaration, which ſo nearely doe concerne Vs (under the Common name of Evill Councellors) as if Wee had violated Our Lawes, even thoſe ſo lately made; broken Our often Proteſtations of governing according to Law, and done that which would bring Our people into a ſlavery) ſhall now joyne iſſue with Our two Houſes, in every materiall part of their Declaration, both in the conſideration of the pretended Danger, Inconveniency, and Illegality.

And herein, firſt, for the pretended Danger, and Inconveniency ſo much urged; Wee do deny.

That this Commiſsion is full of Danger, or Inconveniency to Our Subjects, or will bring an heavier Yoke of Bondage then the Ship-money, or any other illegall charge, taken away this Parliament; or indeed, any Danger or Inconvenience at all.

And therein Wee appeale to each good mans conſcience and reaſonable underſtanding: In a Kingdome (as this is) which in its fundamentall policy (as well for its owne aſſurance, againſt the danger of Forraigne Aids, as the bad uſe that might bee made of great conſtant Forces (whether forraigne or native) muſt neceſſarily be defended by it ſelfe: What other way of defence can be imagined but by the Subject? What more reaſonable proportion of charging them can bee found? Wherein can the Limitation of the (otherwiſe Arbitrary) Diſcretion be bettered? Or how, in any one particular, can a more equall & fitting way be taken for the avoyding the grieving Our good Subjects in their own particulars? Yet withall providing for the defence of our Kingdome in the generall, then is by this Commiſsion?

And Wee cannot but profeſſe Our Wonder, That ſince (as Wee ſhall ſhew) this very Commiſsion was with ſo much care, both in reſpect of the Commiſsioners, and the powers of execution thereof, over the perſons to be commanded, allowed, and ſetled in all points, to the very deſires of the people (and that in Parliament) in the fifth yeare of King H. 4 how ſuch Danger, Inconvenience, and Bondage, can be by Our two Houſes imagined in this Act of Ours, without violating that rule, ſo often urged by them (though not ſo properly applyed to them without Vs) That a diſhonourable thing ought not to bee imagined of the Parliament. And it is as ſtrange to Vs, that all this ſhould happen by this Commiſsion, and yet that Our Subjects ſhould, for ſo many yeares paſt, have enjoyed ſo many happy dayes in the reigne of Queene Elizabeth, and Our Father, both of bleſſed memory, under the proviſion of Lieutenancy, which is agreed by this Declaration to be little differing from thoſe of the Commiſsions of Array in the Powers.

And laſtly, Wee demand, Whether the perſons appointed over the Militia by Our Houſes of Parliament, have not, by their pretended Ordinance or Orders, moſt of thoſe powers; nay, ſome greater over the Subject, in this matter of the Militia, then are in this Commiſsion? and how they themſelves can imagine theſe powers to be of a better nature by their authority, then they are by Ours?

And as to this taxe of danger and inconvenience, as in the generall it did require no anſwer at all, (though for the ſatisfaction of Our people, Wee have therein thus enlarged Our ſelves) ſo for that particular of the Yoke of Bondage thereby, in making it heavier then that of Ship-money, ſince they have not ſhewed in what particulars, Wee ſhall ſay no more but this: That by this Commiſsion no money at all comes to Vs, or to Our diſpoſe; nor is any money appointed to be raiſed, but onely Arms provided: And the Arms which Our Subjects are charged to beare or finde, are to bee their owne proper goods (which Sir Richard Hutton, in his Argument in print againſt the Ship-money, well obſerved, and thereby differenced the providing of Arms, and payment of Ship-mony) and are provided once for all, and not yearly to be renewed, as taxes for money might bee, and remaine in their owne cuſtody, and for their owne defence as well as Ours.

Wee ſhall now proceed unto the next generall iſſue, touching the pretended illegality of Our Commiſsion of Array, and ſhall juſtifie the legality thereof by Common Law, and by the practiſe of former Ages conforme to it; and by Statutes in the very point againſt all the ſeverall pretences mentioned in the Declaration, whereunto Wee ſhall give particular Anſwers.

And Wee ſhall firſt begin with the Common Law, whereunto the Declaration ſaith, this Commiſsion is contrary; and therein affirme,

That this Our Commiſsion is warranted by the very fundamentals of Our Government, and (as VVee ſaid in Our late Proclamation) the right of iſſuing thereof is inherent in Our Crowne.

For ſince (as Wee hope none will deny) the Kingdome muſt of neceſsity be ever in readineſſe (in time of danger at leaſt) by power of Arms to prevent or ſuppreſſe Rebellion at home, and Invaſion from abroad; and to that end the Subject muſt be armed and prepared before hand, and conducted after, as there ſhall be occaſion: And that this cannot be done without a Command or Government, Wee deſire much to know in vvhom, out of Parliament, (for Parliaments are not alwayes, nor can bee called at all times, or meet on the ſuddaine) this power can be but in Vs as the Supreame Governour; (as it is in all other States, be the perſons of the Governours one or more, according to the forme of each State) And can the Supreame Governour, according to his duty, and Our Selfe more particularly, according to Our Oath, otherwiſe afford Our people that protection which is due unto them, in maintaining to them the Lawes in the matter of Property and Liberty againſt private injury or oppreſsion, As well as Our Selfe, and them, and whatſoever is deare unto any of Vs, againſt Enemies or Rebels, eſpecially the juſt Rights and Prerogatives of Our Crowne, wherewith God hath truſted Vs, (according to the fundamentall and well-eſtabliſhed policy of Our State) as well for the peoples good as Our owne honour, both which muſt bee preſerved; And will any man ſay, that by calling of Our Parliament, (which is but a meeting of Vs and Our Subjects, (and ſuch they continue as well collectively in the two Houſes, as they were before ſingly) and a meeting in its owne nature diſſolvable at Our pleaſure; and though now enlarged by Vs in time, yet not in power) Wee are growne leſſe, or departed with any thing to them either by way of abdication, or communication of Our Royall Power? This upon the common principles of Reaſon and Government is ſo obvious to every man, that Wee ſhall for the preſent proceed no further therein, either by quotations of Acts of Parliament, or other legall authorities, (ſome whereof Wee have recited in Our late Proclamations) till Our two Houſes ſhall give Vs ſome juſtifiable inſtance of ſome good time to the contrary.

Wee come next to the continuall practice by Vs alleadged (being alone ſufficient to declare an originall fundamentall Law of Our Kingdome, or at leaſt by a tacite conſent to introduce a Law) and to this purpoſe Wee ſhall ſhew that the power of granting Commiſsions for the defence of the Kingdome in the generall, whereunto onely Wee applyed and doe apply the opinions of Sir Richard Hutton and Sir George Crook (not meaning therein,See the printed Arguments, fol. 25. 64, &c. as neither in Our Proclamation (as is clearely miſtaken) the preſent forme ſetled by 5. H. 4. (which Wee Our ſelves declared, was made upon alteration) though for the ſubſtance thereof Wee might have ſaid ſo much, and made it good, See 14. H. 3. in the printed Argument of Sir George Crook: a Commiſſion to the Biſhop of Rocheſter and others, and to the Sheriffe of Kent, to cauſe all men at Arms in that County to be ſworne, and to aſſeſſe them what Arms they ſhall finde. And divers other preſidents there of Arrays in the times of ſeverall Kings. And ſee Cl. 14. H. 3. m. 15. Dorſ. the like to other Counties. And 36 H. 3. (as appeares in the Hiſtory of Matth. Paris, who lived at that time, Fol. 864.) Rex conſtituit & generaliter per Angliam voce praeconiâ fecit acclamari miſſis ſuper hoc brevibus ad ſingulos Comitatus, ut ſecundum priſtinam Conſuetudinem, arma civibus competenter aſſignarentur, & monſtrarentur, & cenſerentur, ut eſſent ſufficiontia & competentia ſecundum cujuſlibet facultates. The King cauſed Proclamations to be made (for in ſuch caſes Proclamations declaratory were not conceived in thoſe times to be illegall) and ſent Writs into all Counties of England, That (according to ancient cuſtome) Armes ſhould be competently aſſeſſed (or appointed) for the people: And that they ſhould be (muſtred) or ſhewed, and inrolled, that they might be ſufficient and competent, according to every mans eſtate. And ſee Pat. 48. H. 3. m. 3. Dorſ. & m. 7. Dorſ. Cl. 23. E. 1. m. 5. Cl. 25. E. 1. m. 17. Dorſ. in ſcedul. pendent. Pat. 31. E. 1. m. 20. Cl. 16. E. 2. part. 1. m. 13. Dorſ. Pat. 18. E. 2. m. 32. and Rot. Vaſcon. 18. E. 2. m. 4. 10. 27. Cl. 7. E. 3.part. 1. m. 25. Rot. Scot, 10. E. 3. m. 8. Franc. 26. E. 3. m. 5. Cl. 44. E. 3. m. 22. Scot. 7. R. 2. m. 9. Franc. 10. R. 2. m. 24. Pat. 4. H. 4. part. 2. m. 10. Dorſ. And after the Parl. of 5. H. 4. See Pat. 7. H. 4. part. 2. m. 31. Dorſ. 11. H. 4. part. 2 m. 24. Dorſ. Pat. 5. H. 5. part. 2. m. 37. Dorſ. Pat.8. H. 5. m. 17. Dorſ. Pat. 34. H. 6. m. 8. Dorſe. Pat. 9. E. 4. part. 1. m. 1. Dorſ. Pat. 12. E. 4. part. 1. m. 13. Dorſ. And very many more Commiſſions of Array in the ſeverall reignes of theſe Princes. See Lamb. fol. 135. A Law of King Edward the Confeſſor. Debent enim univerſi liberi homines, &c. ſecundum feodum ſuum, & ſecundum tenementa ſua arma habere, & illa ſemper prompta conſervare ad tuitionem Regni, & ſervitium Dominorum ſuorum juxta praeceptum Domini Regis explendum & per agendum. And Libr. Rubr. Scaccarii, fol 162. the Conquerous Law in theſe words, Statuimus & firmiter praecipimus, quòd omnes Comites, & Barones, & Milites, & Servientes, & univerſi liberi homines totius Regni noſtri pred. habeant, & teneant ſe ſemper in armis & equis, ut decet & oportet, &c. Upon both which it appeares, that every man, as well as the Kings Tenants, ought to have Armes according to his Lands, for defence of the Kingdome, at the Kings command. And Hoveden, Pag. 614. in Anno 27. H. 2. Deinde Henricus Rex Angliae focit hanc aſſiſam de habendis armis in Angl. &c. King Henry the ſecond made an aſſiſe of Armes for defence of the Kingdome, according to the difference of mens abilities, farre differing from that in 13. E. 1. And ſee Matth. Paris, fol. 224. A Writ of King John to ſummon Omnes liberos homines & ſervientes, vel quicunque ſint, & de quocunque teneant, qui arma habere debeant, vel arma habere poſſint; quod ſicut, &c. ſint apud Doveram, ad defendendum caput noſtrum, &c. ſub poena Culvertagii. as it appeares by the Marginall Quotations) is warranted by the preſidents in former Ages.

And this practice, the Penner of this Declaration doth indeed not deny; for having before confeſſed the often iſſuing of Commiſsions of Array, after 5. H. 4 in the times of H. 4. H. 5. and H. 6. (and hee might have brought it to later times, if hee had ſo pleaſed) he doth afterwards confeſſe, that divers Commiſſions of Array iſſued in divers Kings Reignes before 5. H. 4. But as to this point of practice before 5. H. 4. hee ſaith by way of anſwer, That for the moſt part they were warranted by particular Acts of Parliament. And yet amongſt ſo many preſidents of ſeverall Commiſsions, he gives inſtances onely of two yeares in 13. & 14. E. 3. of Commiſsions of Array then iſſued, warranted by Act of Parliament.Rot. Par. 13. E. 3. P. 2. N. 39. Rot. Parl. 14. E. 3. P. 1. N. 53. Which, if true, doth no more diſprove the legality of other Commiſsions of Array, conſtantly iſſued without a Parliament, then it doth of Commiſſions of Oyer and Terminer (which at the ſame time in 14. E. 3. together with the Commiſsions of Array, were appointed to iſſue to the ſame perſons) or of any other Act, which the King doth by the advice of his Parliament, though he may do it without them: rather it implyeth the legality, and the former uſage of ſuch Commiſsions of Array, in that it appoints ſuch Commiſsions to iſſue, but limits not at all the particular Clauſes or Powers to be inſerted therein, as a thing known and uſuall to be done.

But the truth is, both the preſidents do concerne the drawing of men out of the Kingdome to a forraign Warre; and ſo are nothing to the purpoſe Wee have in hand. And that of 13. E. 3. is not at all a Commiſsion of Array, but of another nature, giving power to the Lord VVake, and others to provide moneyes, and to cauſe certaine perſons there named, who had particularly undertaken the ſervice of the Scottiſh Warres, Leur arraier & appareiller d'aller vers, Newcaſtle: To array and prepare themſelves to goe to Newcaſtle: (whither they were to be brought at the charge of the Counties) and to be there at a time appointed.

Having thus ſet forth the continuall practice of iſſuing forth Commiſsions of Array in former ages (whereunto Wee never found, till now, any exception, as for home-defence) and the abſolute neceſsity thereof, Wee doubt not but every indifferent Iudgement will eaſily conceive, That this power is a right Vs by by the Common Law. And the rather, when they ſhall conſider, That a Commiſsion of Array having beene iſſued by the King in 5. H. 4. The Commons in Parliament, that yeare did not except to any part thereof as illegally, no, not to the Clauſes, which ſeemed heavy over the Commiſſioners; nor did except at all to any the powers of execution thereof over the perſons to be commanded, but did acknowledge the Royall aſſent, for the amendment, and alteration of that Commiſsion into the now preſent forme, to be an Act of great grace.

And herein Wee cannot but admire, that the Penner of this Declaration ſhould urge it as a reaſon why the Commons in that Parliament of 5. H. 4. complained not for reliefe againſt the Commiſsion in the powers of execution over the perſons to be commanded, becauſe (as hee ſuppoſeth) they knew that they were ſo clearly againſt the late Statute of 4. H. 4. Whereas (if it had beene ſo) they ſhould the rather have complained, becauſe they iſſued againſt ſo late a Statute, ſo cleare in the point, (unleſſe the policy and temper of the times be ſince much altered) for in a matter of ſo high a nature as the powers of this Commiſsion, which (as this Declaration confeſſeth) did ſurely moſt concerne them and the Kingdome, They were bound, as well in duty as diſcretion, to have ſought remedy againſt ſo great a violation of the Law and Liberty; and the rather at this time, when they thought fit to petition againſt part of the Commiſſion, ſince an exception but to a part, eſpecially by him, who ought to complaine againſt the whole, is a violent preſumption of his allowance of the reſidue.

Wee come now more particularly, to the examination of this Our Commiſsion, as it ſtands by Statute-Law, and herein (as in the matter principally inſiſted upon in the Declaration to be diſproved) Wee do affirme, as formerly in Our Proclamation:

That this Our Commiſſion is warranted by Parliament, in 5. H. 4.

And to this purpoſe, Wee do obſerve; that this Declaration doth confeſſe, That the Record in the Parliament of 5. H. 4. concerning the Commiſsion of Array, is an Act of Parliament; And that the Queſtion is now onely about the meaning thereof, Whether the Parliament meant thereby, onely to take away ſome penall clauſes touching the Commiſsioners; (as the Declaration affirmes, to which purpoſe onely it alloweth it for an Act) or elſe to ſettle alſo the powers of execution thereof, over the perſons to be commanded, as Wee affirme.

And therein (as Wee do agree) that at the firſt, the Complaint of the Commons, was onely in reſpect of ſome Clauſes & wordes therein, which were Greivous, and Dangerous to the Commiſsioners: So it cannot be denyed, but that afterwards the Copie of the Commiſsion ſo complained of, was delivered by the King to the Commons, with an expreſſe Generall Liberty (without any reſtraint) to correct it according to their owne mindes, and thereupon the Commons did make uſe of that further Liberty, and corrected the Copy, in divers materiall Clauſes, and Words which concerned the powers of Execution, as well as thoſe, which concerned the Commiſsioners (though the contrary be ſtrangely affirmed by the Penner of this Declaration) as may appeare more particularly by the clauſes following, wholly omitted by him.

1. Firſt, the Copie gives power, Ad armari faciend. omnes illos qui de corpore ſunt potentes & habiles ad armand. tam illos qui de ſuo proprio habent unde ſeipſos armare poterunt, quàm illos qui non habent unde ſeipſos armare poterunt; To cauſe to be armed, all thoſe who have of their own thereby to arme themſelves, as well as thoſe, who have not wherewith of their owne to arme themſelves. Which laſt Clauſe, concerning the Arming of thoſe, who are able of Body, but not in Eſtate (being ſuch as are by Vs before reckoned amongſt the third ſort of Our Subjects) is wholly omitted in this Commiſsion, as it now ſtands corrected in 5. H. 4.

2. The Copie, as concerning the aſſeſsing, and diſtraining of all thoſe who are able in their Eſtates, but not in their Bodies, goes therein thus; Ad inveniend. juxta quantitatem terrarum & bonorum ſuorum, & prout rationabiliter portare poterunt, ſalvo ſtatu ſuo, armaturas hominibus ad arma, & hominibus armatis, & arous, & ſagittas ſagittariis ſic arraiatis & triatis, qui non habent armaturas arcus & ſagittas de ſuo proprio, nec unde armaturas, arcus, & ſagittas emere & providere poterunt, & ad contribuend. expenſis omnium illorum qui ſic laborabunt pro defenſione dicti Regni noſtri, tam infra dictum Com. noſtrum quàm extra, quandocunque indiguerit; Ita quòd illi qui morabuntur, &c. For the finding of Armes, according to the quantity of their Lands and goods, and as they may reaſonably beare, ſaving their degree, for men at Armes, and men Armed; and Bowes and Arrowes for Archers ſo arrayed, and trained, which have not Arms, Bows and Arrows of their owne, nor have wherewith they can buy and provide Arms, Bowes, and Arrowes; and to contribute to the expences of all thoſe which ſhall ſo labour for the defence of Our ſaid Kingdome, as well within that Our County as without, whenſoever there ſhall be need. All which, as may appeare upon the comparing, is much beyond that Commiſsion of 5. H. 4. as it was entred after the correction.

Vpon theſe proceedings in 5. H. 4. the corrected Copie being preſented to the King, with a Prayer by the Commons; That from thenceforth forward, no Commiſsion of Array ſhould iſſue otherwiſe, nor in other VVords, then was contained in the Copie ſo corrected, &c. An Act was thereupon made by the Kings Royall aſſent thereunto, by the advice of the Lords.

And thus upon the whole Record it is cleare, That in the litterall Sence the Commiſsion is fully enacted in the whole; and We do not obſerve that to be denyed in the Declaration. And the Art of the Penner ſeems to be ſpent onely concerning the intent of the Parliament, in labouring to prove, That the Commons meant nothing in the Act, but the taking away the penall clauſes and words concerning the Commiſsioners. And the Argument is drawne onely from the end of the Statute, which the Declaration ſaith was onely for the ſecurity of the Commiſsioners: And this the Penner goes about to prove: Firſt, from the Complaint, as being no more. Secondly, from their amendment of the Copie, as being onely concerning the Commiſſioners. Thirdly, from the Prayer, being to the ſame purpoſe. Fourthly, out of the occaſion, as ſuppoſing the Act neceſſary on the part of the Commiſsioners, not on the, part of the perſons to be commanded. Laſtly, out of the ſubſequent practice of iſſuing Commiſsions, that there never went out one agreeable with the Copie ſo corrected.

And herein, to juſtifie this Our ſence on this Act of Parliament of 5. H. 4. and withall, to ſhew the errours and miſtakes of the Declaration in frame of the Argument to the contrary; the ſtate of the Caſe ſtands thus briefly.

The Commons complained but againſt the Penall Clauſes upon the Commiſsioners (which Wee agree) at firſt; but afterwards, the King left them at liberty to correct the whole, as they pleaſed. And now they alter their minde, and doe not reſt in correction of thoſe Penall Clauſes upon the Commiſsioners, according to their firſt deſire, but (as it is plaine upon the compare of the Copie, as it was corrected, with the Commiſsion formerly iſſued, the not obſerving whereof was the great miſtake, that doutbleſſe now miſ-led Our two Houſes) the Commons likewiſe (as wiſe men) who would not wave the advantage of a proffered favour from the King, did correct the Commiſsion alſo in the powers of execution over the perſons to be commanded: And thereupon the corrected Copie being preſented, and the Commons expecting, that even preſently (for there was then occaſion) and often afterwards Commiſsions of Array would (as they did in truth) iſſue forth, did pray not only for the indemnity of the Commiſsioners, which had bin indeed but anſwerable to the firſt complaint; But in the firſt place, they made their Prayer in theſe Words; That from thenceforth forward, no Commiſsion of Array ſhould iſſue otherwiſe, nor in other words then is contained in the ſaid Copie (ſo corrected)

This now being apparently the true ſtate of the whole caſe (cleared from all miſtakes) we think it ſo plaine, that it requireth no further Argument to manifeſt, That the intention of the Parliament, was both to ſettle the Clauſes concerning the Powers of execution, and the Clauſes concerning the Commiſsioners. Thus then Wee paſſe over to the Anſwer of the Objections.

Firſt then, for the firſt pretence, That the complaint was ſolely on the behalfe of the Commiſſioners, Wee agree it to be true, and perhaps the Commons had no further thought at the begining, nor till after an occaſion given by the offer of the Liberty for a totall reformation: But then they might deſire an alteration accordingly.

For the ſecond pretence, (which deſtroyed, makes an end of the queſtion) That the Commons made no amendment in the Powers of execution over the perſons to be commanded; It is apparently miſtaken, as appeares by the particular inſtances before mentioned.

For the third pretence of the Prayer, (which came not till after the Commiſsion was in all points ſo as before corrected) That the Commons did not deſire any amendment or Declaration concerning the Powers of execution, that is alſo miſtaken; For having made thoſe ſeverall amendments, in the very firſt place (before any particular deſired on the behalfe of the Commiſiſioners) their prayer is as generall, as their amendments, That from thenceforth forward, No Commiſſion ſhould iſſue otherwiſe, nor in other words, then is contained in the ſaid Copie.

For the fourth pretence, That it was unneceſſary to take care of the perſons to be commanded, becauſe that the Powers of execution over them were againſt 1. E. 3. cap. 5. 25. E. 3. cap. 8. and 4. H. 4. cap. 13. and that the Commiſsions of that kind were then ſo lately damned in 4. H. 4. Wee Anſwer, That if it were ſo, there was the more neceſsity for them to complaine, as We have ſhewed before. But in this alſo, though it be needleſſe, We ſhall herein further cleare Our Commiſsion from thoſe Statutes.

As for the occaſion of reliefe for the Commiſſioners more then for the perſons to be commanded, We ſay, the Commons could not but know that there was no more occaſion for the one, then for the other: For the ſame Law of 4. H. 4. if it had (as is pretended by the Declaration,) expreſly damned the Commiſsion as unlawfull in the Powers, that (without more) had apparently, to every common Iudgement, ſufficiently ſecured the Commiſsioners againſt all refuſalls; And in truth, the perſons to be commanded, being moſt of them of the lower ſort, had more reaſon to feare the Commiſsioners, then the, Commiſsioners, being men of Power, had to feare any trouble by Fine or Impriſonment, or otherwiſe, from any of the Courts above, eſpecially in a time when Parliaments were ſo frequent.

For the laſt pretence of contrary practice, Our Anſwer is: Firſt, We deny this (which the Declaration affirmes) That though many Commiſsions of Array did iſſue out after 5. H. 4. yet none of them did agree with it in words and matter: For We ſay, That divers Commiſsions were the very ſame,See Pat. 7. H. 4. part. 2. m. 31. Dorſ. Pat. 11. H. 4. part. 2. m. 24. Dorſ. ſaving in thoſe things which were neceſſarily, and as of courſe, to be changed, as (amongſt others) may be ſeene in the after times of King Henry the fourth.

And as unto the pretended contrary practice, Wee agree that it is true, Divers Commiſsions of Array did iſſue out, which do vary from this Statute of 5. H. 4. yet Wee deny that they muſt be therefore contrary to it; For (however upon the Commiſsion of 5 H. 4 as it was corrected in the ſeverall Clauſes in ſuch manner as before) it is enacted that from thenceforth forward no Commiſsion ſhould iſſue out otherwiſe then is contained in that copie; yet it is moſt evident notwithſtanding, that the meaning of the Law could never be to tye the King to the very words of that copie; For then at all times the Commiſsions muſt have begun with Rex, &c. and not Carolus, or Regina, and ended with the ſame Teſte for time and place, and juſt the ſame preamble of danger, be it true or falſe (whatſoever other occaſion had been) muſt have been meant to be expreſſed; All which are abſurd. And in this, as in all Acts of Parliament, as well as in Wills, the intent clearly and neceſſarily appearing out of the Act it ſelfe, is the Law, which in this caſe was not ſo much to tye to the very identicall words, as, That the King ſhould not iſſue out any Commiſsions of Array which ſhould exceed this which was ſo ſettled by any further penalty on the Commiſsioners; nor in the powers of execution upon the Perſons to be commanded; which ſence appeares in this, that in ſuch a caſe it could never have been meant, That the Powers of execution of the Commiſsion, being ſeverall, as to Array, Aſſeſſe, Arme, Traine, Muſter, and Conduct, and all theſe not neceſſary on all occaſions, nor all alwayes equally fit to be entruſted to the ſame perſons, That the King ſhould be bound at all times unneceſſarily to command the execution of them all, and equally to entruſt the ſame perſons with them all, as he muſt have done in caſe the Act had beene litterally to be expounded in each title.

The truth is, many Commiſsions did vary, yet ſtill were warranted, as not exceeding that of 5. H. 4. in the powers. As ſometimes granting but part of them, when there was no cauſe to uſe all; as alſo, ſome varyed on the occaſion, as ſometimes providing againſt an invaſion, in this or that part onely, ſometimes more generall throughout the Kingdome: And laſtly, it is true that ſome were upon occaſion of rebellion, for which there is as much cauſe as againſt a forraign enemy, for thoſe Commiſsions are not againſt 5. H. 4. which was a preſident, onely for the power of execution of Commiſsions of Array (whatſoever might be the neceſſary occaſion to iſſue them) And as this particular Commiſsion ſent forth in 5. H. 4. and thus after corrected, was on the occaſion of the feare of the French, and therefore was upon that accident made onely as againſt an Enemy; ſo if according to former practice the like had then iſſued in caſe of Rebellion (in which caſe perhaps Rebellion had beene mentioned as the cauſe) then the ſuppreſsion of Rebellion might have beene inſerted in this preſident, and then the Argument might have beene at this day uſed as well againſt the warrantableneſſe of this Commiſsion in caſe of Invaſion.

And as to the preſident of the Commiſſion of Array in 6. H. 4. cited in the Declaration as not agreeing with that of 5. H. 4. neither in words or matter, We conceive it is in ſubſtance warranted by it: For there the King (upon occaſion of the French being in Piccardy, ready to beſiege ſome of his Forts there, and hearing that they intended to come to aide the VVelch, being then in Rebellion) ſends out his Commiſsions into Kent, Somerſet, and other Counties, to Array, Train, and Arme the Inhabitants there, to the end they may be ready, as well at the Sea-coaſt, as elſe where; where, and as often as there ſhall be neceſsity for the expelling, vanquiſhing, and deſtroying of thoſe enemies when there ſhall be imminent Danger, as in ſuch caſe had beene accuſtomed. But he thinks not fit to give to them the power of conducting them (which is the Commiſsion of 5. H. 4.)

But ſhortly after, upon information of an intention of the VVelch to enter into England, a Commiſſion iſſues to Sir Thomas Barkley touching ſome of theſe Counties and others, not, to Array and Arm the inhabitants, for that was done before, but ad ſupervidendum, to ſee that they were ſufficiently arrayed, according to their eſtates; and to lead them as often as it ſhould be needfull for reſiſtance of the Rebels.

So that as Wee conceive, the powers which were put together in 5. H. 4. are here ſevered; but there is nothing in either Commiſsion which exceeds or croſſes the powers ſettled by the Commiſsion of 5. H. 4. Though if it did, it might prove the illegalitie of thoſe; but nothing againſt the legality of Our Commiſsions.

And if other particular Commiſsions had been produced, and the differences particularly obſerved, Wee ſhould have beene the better able to have applyed Our anſwer thereunto; And in the meane time, Wee looke upon all ſuch Commiſſions, as regulated, and warranted by this Act of 5. H. 4. and in purſuance thereof.

Notwithſtanding, if ſome Commiſsions can be produced, which are not warranted by 5. H. 4. Yet that will be no ſufficient Argument to prove, That this of 5. H. 4 never meant to ſettle the Powers of Execution, for there is no doubt, but in ſo long a proceſſe of time, as ſince 5. H. 4 there may have beene ſome deviation contrary unto the Act, the ſame having not at all times beene remembred, as perhaps alſo may be in the Clauſes concerning the Commiſsioners, which yet We are ſure Our two Houſes will not allow as an Argument againſt the force of 5. H. 4. as allowing it to be an Act concerning them.

We might further adde the opinion of Sir Edward Cook, (whoſe great learning and affection to the Rights and Liberty of the Subject are not unknown) who in his Treatiſe of the Juriſdiction of Courts (being one of thoſe Books ſince this Parliament deſired, or directed by the Houſe of Commons to be publiſhed) expreſly declares, That this Act, touching a Commiſsion for arraying and muſtering of men, is at this day of force.

But if any man be yet unſatisfied with ſo cleare Reaſons on Our part, and in Our anſwers, We ſhall conclude upon him with the authority of the whole Parliament of 7. H. 4. Rot. Parl. n. 36. within two yeares after this Our Commiſsion was ſettled, when probably many of the ſame perſons were members of both the Parliaments, Whereby it appeares that this Act of 5 H. 4. is ſo binding as unto all the Powers of execution over the perſons to be commanded, that the Clergy (who in former times had uſed to be arrayed amongſt themſelves by Writ or Commiſſion to the Biſhop or Arch-biſhop) were bound, as within the body of that Commiſsion ſo ſettled by Parliament. And they thereupon, in that very Parliament of 7. H. 4. are excepted out of this very Commiſsion of 5. H. 4. which is therein mentioned; and it was then enacted, That from thenceforth the Clergy be not any wayes charged amongſt the Laity for the making of any ſuch Array, nor for any contribution amongſt the Laity for the ſame.

Having thus clearly ſettled this Record of 5. H. 4. as a full Act of Parliaments, well concerning the powers of execution over the Perſons to be commanded, as the taking away of the penall Clauſes over the Commiſſioners, There is no further neceſsity, as to the matter in queſtion, to conſider whether or no that this Commiſsion in all or any part thereof be contrary to any of the former Acts of 13. E. 1. 1. E. 3. cap. 5. 25. E. 3. cap. 8.& 4. H. 4. cap. 13. ſo much inſiſted upon in the Declaration. For that in ſuch caſe, the Act of 5. H. 4. being the latter had beene a Repeale of them for ſo much.

Nevertheleſſe, for the further ſatisfaction of Our people (as being deſirous to omit nothing which may be done on Our part for the clearing of the juſtice of our actions) Wee ſhall alſo examine thoſe Statutes ſo farre as they are made uſe of in this Declaration.

And therein We profeſſe the difficulty hath been more to finde out, then to anſwer the inference made upon theſe Statutes. For the Declaration reciteth the Statute of 13. E. 1. to bee a particular Aſsize (or Aſſeſſement) of Arms, both in reſpect of the Kinde of Armes to be found, and the proportion of the eſtate of every man, after which they are to be found, downwards from 15 pounds in Lands, and 40 Marks in Goods: And reciteth the Statute of 1. E. 3. That no man from thenceforth ſhall be charged to arme himſelfe otherwiſe then he was wont in the time of the Kings Progenitors; and that no man be compelled to goe out of his Shire, but where neceſsity requireth, and ſudden comming of ſtrange enemies into the Realme. (Whereupon it is taken for granted, That the Statute of 13. E. 1. was a proviſion of Armes for defence extraordinary, and that this Statute of 1. E. 3. was meant with reference thereunto) And alſo reciteth the Statute of the 25 yeare of E. 3. (as to be to the ſame effect with the former) againſt the constraining men to finde men of Armes, Hoblers, or Archers, without conſent and grant made in Parliament. And laſtly, reciteth the Statute of 4. H. 4. (which confirmes thoſe two Statutes of 1. E. 3. and 25. E. 3.) And immediately thereupon makes this concluſion which followes; That by theſe Acts (not diſtinctly applying the ſeverall matters to the ſeverall Statutes) it clearly appeares, That the King could not, by the Law, give power to impoſe Armes upon the Subject, (which the Declaration calleth ſometimes finding of Armes, ſometimes finding men at Armes, all of different ſences) or to compell them to be drawne out of their Counties: Which afterwards, in ſtating the Caſe, is expreſſed thus, That the Subject was not compellable to finde any other Arms then was declared by thoſe Statutes, or to go out of their County, but in caſe of Actuall invaſion by Forraigne Enemies. Againſt which this Commiſſion is ſaid to be.

But for Our clearer paſſage in this buſineſſe, We ſhall ſingle out the ſeverall Statutes, with the Objections (as Wee conceive) intended upon each of them.

For the better underſtanding whereof We ſhall diſtinguiſh of the principall Termes in this queſtion uſed in the Commiſsion, and ſeverall Acts of Parliament.

Firſt then, as for the words of Arming a mans ſelfe uſed in the Commiſsion (as alſo in the Act of 1. E. 3.) they are litterally to be taken for the providing of Armes for a mans owne perſon, wherewith hee is to ſerve as a Souldier, either Horſe-man or Foot-man, of what kinde ſoever; And the finding of Armes for others in the Commiſsion, is but the finding the bare Armes, without providing the men, and are ſo to be taken here, (in whatſoever ſence they may be taken elſe-where,) as may clearly appeare upon the very reading. And as for the words (finding of men of Armes, &c.) which are the words uſed in the Statute of 25. E. 3. they are uſually and properly enough taken for the ſetting forth of Souldiers, the paying of their wages, or contributing towards either of them

This then being the ſence of the words, Wee now proceed to the Statutes, and apply them to the two Objections; the one againſt impoſing of Arms, the other againſt carrying out of the County: And firſt concerning the Statute of 13. E. 1.

Thereupon the Objection againſt the power of impoſing of Armes is this.

This Statute appoints a particular Aſsize for the kindes of Armes and Proportions, as before. But Our Commiſsion doth give power to aſſeſſe for the kindes (any Armes) and for the proportions, according to each mans ability; (which the Declaration termes to be without limitation and at pleaſure) and ſo is contrary to this Statute.

To this Wee anſwer; That that Statute of 13. E. 1. (beſides that it is but an affirmative Statute,) was made onely for the ordinary defence of the Kingdome, for the preſervation of the peace at ordinary times; and was not intended as a proviſion of Armes for defence extraordinary: but that for the publique defence in time of Danger, the King might, and muſt charge other Armes, and other proportions, according to the exigency of the occaſion.

Both which appeare together, if Wee conſider that the proviſion in that Statute mentioned (which might be of uſe for the Peace) is very inſufficient for the Service of War: For We cannot but obſerve the pettineſſe of the Armes, even according to the uſe of that time; for he that was rated higheſt by that Act, was to finde but a Hawberge, (which in that place ſignifies a Gorget) a Breaſt-plate of Iron, a Sword, a Knife, and a Horſe: and others but Giſarms (which were Pike-ſtaves) Knives, and other leſſe weapons. And yet at that time there were men at Armes, which were Horſe-men of compleat Armour, Hoblers, which were Light-horſe, and there were Pikes, Lances, Pole-axes, and other weapons commonly uſed for Warre.

And no leſſe conſiderable is it to this purpoſe, That for the charge of this defence no man of what eſtate ſoever, is by this Act charged above the rate of 15 Pounds in Lands, or 40 Marks in Goods, and he that hath 15 Pounds in Land, or 40 Marks in Goods, is charged as high as the greateſt: which is not to be imagined in caſe of proviſion for defence extraordinary.

And to cleare this further out of this, and other Acts; it is plain, that this very Act expreſſeth it ſelfe in theſe words, That every man have in his houſe Harneſſe to keepe the peace: and appoints thoſe who are thereby aſſeſſed, to purſue Hues and Cries after Theeves and Robbers, (which went in thoſe times with great ſtrength, and in multitudes) with their Horſes and Armour. And the old Articles of inquiry upon that Statute, being made in the ſame Kings raigne (and to be ſeen in the Statute-books) tend onely to inquiry touching the keeping the peace: as whether all men betwixt the age of fifteen and ſixty be ſworn to keepe the peace, and whether they have weapons in their houſes according to the quantity of their Lands and Goods, for conſervation of the peace, according to the Statute. And the Statute of 2. E. 3. cap. 6. renewes this Statute of 13. E. 1. in theſe words: Item, As to the keeping of the peace in time to come, it is ordained and enacted, That the Statutes made in time paſt, with the Statute of Wincheſter, ſhall be obſerved and kept in every point. And ſtrange it were to imagine, that the wiſdome of a Parliament, in the matter of arming of the Subject, made no greater or better proviſion againſt an Enemy, then againſt a Theefe, or a Rogue. And it is not ſo proper to charge the Subject at all times in the ſame manner and proportions as in times of danger.

And laſtly, for further clearing this Our expoſition of that Statute of 13. E 1. Wee ſay, That although (as Wee have already ſhewed) the Commiſsions of Arrayes did, from the time of making the Statute of 13. E. 1. frequently iſſue both before and ſince the Statute of 5. H. 4. yet none of thoſe Commiſsions were regulated by the Statute of 13. E. 1. but either they were (as commonly) for arming them according to mens degrees & abilities, without mentioning the Statute of 13. E. 1. Or, where any did expreſſe the quality and proportion of Armes to be found, They varyed from the Statute of 13. E. 1. and appointed other kinde of Arms, and differenced and proportioned the eſtates of thoſe who were to finde Armes, otherwiſe then is mentioned in that Statute: And ſometimes with an expreſſe Declaration, that the Statute of 13. E. 1. was made for the conſervation of the peace in a time of peace, when there was no danger of a forraigne enemie. And though ſome uſe might be made of thoſe armes appointed by that Statute in time of danger, as well as any other weapon: yet the ſame was not that kind of armour, which was principally intended as fitting for ſuch defence; as may appeare by the preſidents above cited. And the conſtant practice in all after ages for defence extraordinary hath ever been with other armes, and after other Proportions, as Wee beleeve will not be denyed by any man.

Wee come now to the Statute of 1. E. 3. whereupon the objection ſtands thus:

That the Statute of 13. E. 1. having made ſuch particular aſsize of Arms (as before) for the kinds and proportions, this Statute doth ordaine, That no man from thenceforth ſhall be charged to arme himſelfe otherwiſe then hee was wont in the time of the Kings Progenitors: Meaning (as the Declaration takes it for granted) according to that former Statute of 13. E. 1.

To this Wee ſhall give this anſwer: That (as Wee have proved before) 13. E. 1. was never meant as of a proviſion for defence extraordinary: and much leſſe that the Statute of 1. E. 3. could intend any ſuch thing.

And as the Penner of that Declaration cannot therein ſhew any expreſſe reference to that Statute of 13. E. 1. and can, at the moſt, but barely conjecture it; ſo on the other ſide, Wee ſhall out of the penning and otherwiſe upon ſurer grounds conclude the contrary. For firſt, in this caſe, regularly, if not neceſſarily, (where a later Statute in the ſubſtance and meaning thereof wholly depends upon a former, and muſt have reference thereunto) the Parliament of 1. E. 3. would have made mention of this Statute of 13. E. 1. (as they did thereof) the next yeare following, when it was renued, but for keeping of the peace. Next, in wiſedome it was fitting (if ſo be that they had intended a further reeſtabliſhment of the particularities of the kinds and proportions of armes mentioned in 13. E. 1.) that when they had a former Statute ſo punctuall therein, they ſhould not have thus left us for a true underſtanding of their meaning, to a generall enquirie of the particular aſsize uſed for armes in former times.

But on the contrary, the Statute referring to the former uſage, in the times of the Kings Progenitors (which being indefinitely ſpoken, Wee conceive, muſt be underſtood of all Kings times, as well before as after 13. E. 1.) the uſage therein meant is but Conſuetudo Angliae, the Common Law: and the Parliament could not, in all probability, in the mention of ſo ancient an uſage, intend ſo late a Statute as this of 13. E. 1. which was but new in the particularity of the Aſsize, though antient in the Rule of charging, according to the quantities of every mans Lands & Goods, the former Aſsizes having been alſo different: Nor (conſidering that of Neceſsity, the ſeverall kindes and proportions of Armes ever did, and muſt vary with the times) could they intend, that there ever was, for the times paſt, or could be for time to come, any ſuch conſtant rule of any ſuch particular aſsize concerning Armes, whereunto they could refer, as conſtantly uſed for the times paſt, or that might conſtantly endure for time to come: neither ever was, or can there be any other conſtant rule, then that generall rule of the Common Law (which can never faile) for the aſſeſsing Armes from time to rime, for the kindes, according to the preſent uſe; and for proportions, according to mens abilities.

And it were very ſtrange, that the Parliament of 1.E.3. could conceive, That (for the defence extraordinary) the particular kindes of Arms in 13. E. 1. eſpecially ſuch petty proviſions, could be proper and ſufficient at this time in 1. E. 3. and would ſo continue afterwards.

And now that We have cleared this firſt part of the Statute of 1. E. 3. (as concerning the Arming a mans ſelfe) that it is not thereby intended, That the Subject ſhould not be charged with Armes, otherwiſe then according to the Statute of 13. E. 1. We ſhall deliver what Our ſelves conceive of the meaning thereof; And it is thus.

Towards the end of the Reigne of E. 2. ſeverall Commiſsions of Array, iſſued into ſeverall Counties; in execution whereof the Commiſsioners had much grieved and oppreſſed the Subjects: Inſomuch, that upon complaint, ſpeciall Commiſsions of Oyer and Terminer (uſuall in thoſe times) were ſent forth for the enquiry after thoſe grievances and oppreſsions.Cl. 19. E. 2. n. 17. Dorſ. And although it doe not appeare what thoſe were, yet ſince the Complaint was not againſt the Commiſsions themſelves, as illegall, Wee cannot conceive otherwiſe, but that it was againſt the wilfull exceſſe of the Commiſsioners, in their ſurcharging the Subjects with Armes beyond their abilities of eſtate to beare, (as charging a man as a Horſe-man, where it had beene ſufficient for for his eſtate to have borne Armes as a Foot man, and the like) contrary to the Tenor of the Commiſsion.

But this courſe producing indeed little effect, in the time of King E. 2. partly out of the favour, which it is likely the Commiſsioners did finde, and partly by reaſon of the ſhort remainder of His Reign, there was juſt occaſion, both for Complaint and Reliefe in this next Parliament of 1. E. 3. And though the Particulars of the Petition in 1. E. 3. and the Anſwer out of which (according to the manner of thoſe times) the Printed Act was made, doe not appeare, for the want of the Roll of that Parliament, yet Wee may well judge thereof upon this occaſion, happening within the compaſſe of about one yeare before, and thereupon conclude, (as for the true meaning of that Act) That the proviſion intended to be made, was onely againſt the exceſſe of the Commiſsioners; which rather juſtifies, then any way diſproves the Lawfulneſſe of ſuch Commiſsion. And ſo the ſence of the Act, applyable to the Complaint, will be, That whereas the Commiſsioners had over-highly taxed the Subjects, the Act provided, That they ſhould not be otherwiſe charged, then as they had been in the times of former Kings; and (according to Our Commiſsion) moderately, and ſo as they might live ſtill according to their former condition: as in like caſe of other Statutes againſt outragious Diſtreſſes and Amerciaments.

And although Wee take this to be the ſence of that Statute, yet if any man ſhall thinke this part of the Statute of 1. E. 3. Concerning arming a mans ſelfe, to be the ſame with the words of the Statute of 25. E. 3. againſt conſtraining any man to finde men of Armes, &c. (which is the ſence of this Declaration, which makes both Statutes to be to the ſame effect, and makes the inference againſt Our power of impoſing Armes upon them both) We ſhall not contradict him therein, being confident to make it evident, that this Commiſsion is no way contrary to the words or meaning of that Statute of 25. E. 3.

But before Wee come to that Statute, Wee ſhall make one Obſervation upon thoſe Statutes of 13. E. 1. & 1. E. 3. both together: and thereupon ſhew, that in the judgement of the whole Parliament of 4. H. 4. (whoſe authority is chiefly inſiſted upon in this Declaration) Our Commiſsion is no way oppoſed by either of thoſe Statutes: And it is this:

It appeareth, That the late iſſuing of the Commiſsioners, complained of in 4. H. 4. (which the Declaration ſuppoſeth were of the ſame nature with Our Commiſsion, but Wee deny it) was the occaſion of the Petition of the Commons in that Parliament.

In which petition, they intending to ſhew the illegality of thoſe Commiſſions, and to obtaine (as they thereupon did) a confirmation of former Acts to the contrary, do recite the Statute of 25. E. 3. 18. E. 3 c. 8. and that part of the Statute of 1. E. 3. which is againſt carrying of men out of their Counties; and yet nevertheleſſe they wholly omit this Statute of 13. E. 1. and this firſt part of the Statute of 1. E. 3. concerning the Arming. Whereas it is to be preſumed, they would have alſo recited this Statute of 13. E. 1. if they had conceived the ſame to be (as this Declaration ſets it forth) the certaine Aſſize for armes, and ſuch a Statute whereto all the reſt had reference, or any way materiall againſt part of theſe Commiſsions. But howſoever making uſe of the later part of the Act of 1. E. 3. againſt carrying of the Subject out of the County, they would have made uſe alſo of this part of 1. E. 3. concerning the arming, and deſired a confirmation thereof, as well as of the reſidue; and not thus purpoſely rejected it, if ſo be they had not, upon conſideration, firſt reſolved, that that part of 1. E. 3. was no wayes againſt the Commiſsion.

And now Wee come to the Statute of 25. E. 3. whereupon the Objection ſtands thus:

By the Statute of 25. E. 3. the Subject is not to be conſtrained to finde men at Armes, &c. if it be not by common conſent and grant made in Parliament. But by this Commiſsion the Commiſsioners have power, without conſent or grant in Parliament, to command thoſe who are able of body and eſtate to arme themſelves: and thoſe who are impotent, but able in eſtate, to find Armes for others: (which the Declaration in ſome places calls finding Armes, and in ſome places finding men at Armes) and is therefore againſt that Statute.

For this objection Wee need do no more then referre Our ſelves to Our former obſervation of the different ſenſe of the ſeverall words of Arming a mans ſelfe, and finding Armes for ſome other, which are the onely words uſed in the commands of this Commiſsion, & the words, finding of a man of Armes, or other compleat Souldier, uſed in this Statute, and intended to be thereby prohibited: whereby it will be apparent, that arming a mans ſelfe, or finding bare armes for others, is not within the letter of this Statute.

Nevertheleſſe for a more particular Anſwer; 1. as to the firſt of theſe powers in Our Commiſſion concerning Arming a mans ſelfe, Wee ſay, That this Act being againſt finding of men at Armes, or other ſouldiers, doth not any wayes intend to prohibit the compelling of men to arme themſelves, (that is, their owne perſons.)

For that had beene not onely againſt the Common Law, whereof that Act is but declarative, but alſo againſt thoſe Statutes of 13. E. 1. (admitting it provided, as the Declaration ſuppoſeth, for defence extraordinary) and againſt 1. E. 3. by both which Statutes it doth clearly appeare, that the Subject is in ſome manner compellable to arme himſelfe: And the Act of 25. E. 3. is in generall againſt all finding of men armed at any time. So that in that ſenſe whatſoever the occaſion is (though it be upon an actuall invaſion of an enemie) he cannot be compelled to find armes. And that expoſition of the Statute would wholly take away all compulſory means of defence.

Nor will it be ſufficient to anſwer this, That the arming according to thoſe Statutes is aſſented unto in Parliament, and ſo is within the exception of the Statute of 25. E. 3. For the conſent in Parliament (intended by this exception) muſt be underſtood of future conſent in Parliament, as well as the conſtraining men to finde Souldiers prohibited by the Act is meant of a future finding Souldiers. And in the exception of the Statute of 25. E. 3. There is not onely to be a conſent, but alſo a grant in Parliament, for ſo the words are (if it be not by common conſent and grant in Parliament) but in thoſe Acts of 13. E. 1. & 1. E. 3. there is no colour of a grant made at all. And this Statute being declaratory of the Common Law, as appeares by the reaſon of the Act delivered in the Petition of the Commons in theſe words, Car cet eſt encountre le droit del Realme. For it is againſt the right of the Realme, (which is as much as againſt the fundamentall liberty of the Subject) this Statute of 25. E. 3. muſt bee conſtrued as of the Common Law; and before any Statute

And ſecondly, as for the other part of Our Commiſsion, which is concerning the charging thoſe who are impotent in body, but able in eſtate, to finde Armes for others: If ſuch finding of bare Armes had beene within the letter of that Statute, or the finding of a compleat Souldier by ſuch a man, had beene within Our Commiſsion; yet it would have beene a harſh conſtruction, (and doubtleſſe contrary to the intention of the makers) by generall words, which were meant onely for proviſion in the generall Caſe, thus to have ſpared him in this ſpeciall and particular Caſe of impotency, from contributing to the defence of the Kingdome, dome, by finding another, as in his place; whileſt he is as much, or more concerned then others, who muſt undergoe as much charge, and muſt alſo adventure their owne perſons.

And by the Common Law, whereof (as Wee have ſaid) this Statute is but declarative, thoſe who were not fit to beare Armes, were notwithſtanding chargeable otherwiſe towards home-defence, as appeares by the Preſidents already cited, and many more.

And now Wee ſhall give the true ſence of this Statute of 25. E. 3. And this will beſt appeare upon the end and occaſion of the making; which were theſe.

King E. 3. having had his Treaſure exhauſted by the French Warres,V. 18. E. 3. Rot. Parl. n. 11. 20. E. 3. Rot. Parl. n. 12. and others of that time. was upon that occaſion inforced to many hard preſſures upon his Subjects; So that they had ſeverall times bin charged, with providing and ſetting forth of Souldiers; and ſometimes with maintaining or paying of them: and this in ſo exceſſive a manner, as that it coſt a County ſometimes at once a thouſand pound; And all this was done with relation onely to a forraigne War, wherein the Title of the King to France was onely in queſtion: and nothing which directly concerned the Kingdom of England: againſt theſe there was juſt cauſe, to make proviſion by ſome Law; eſpecially now when the Wars were renewing: And accordingly this Statute was made againſt impoſing ſuch charges upon the Subjects.

And what reſemblance there is betweene thoſe caſes, and Our caſe, of charging the Subjects onely to finde Armes for themſelves, or (in caſe of impotency) for another (as in their ſtead) and all but for home defence, Wee refer to every mans Iudgement.

And thus Wee leave theſe three Statutes of 13. E. 1. 1. E. 3. and 25. E. 3. with this obſervation, that if it be true, (which the Declaration takes for granted) that they are all to the ſame effect, that then Our Anſwer to any of theſe three, is an Anſwer to the reſt.

Wee are now come to 4. H. 4. being the laſt of theſe Statutes, which (in the matter of Arming) are objected againſt Our Commiſsion, as it ſtood at Common Law, before 5. H. 4.

And herein Wee agree, that the Parliament Roll, whereupon the Statute is framed, is truly ſet forth in the Declaration: yet Wee conceive that, in Subſtance, there is no more upon the Roll, then in the Print; though ſome paſſages may give ſome light for the expoſition of theſe other Statutes of 1. E. 3. and 25. E. 3. therein confirmed.

So as this Statute of 4. H. 4. being, in truth, but an Act of bare confirmation, without any additionall explanation, is already anſwered.

But becauſe the Declaration doth import, That the Commiſſions (which iſſued lately before 4. H. 4. and were the occaſion of that Statute, and are damned thereby, as contrary to the Acts of 1. E 3. 18. E. 3. and 25. E. 3.) were of the nature of Our Commiſſion, (which yet is not indeavoured to be proved) Wee ſhall alſo give a particular anſwer touching thoſe Commiſsions.

And herein We ſay, that firſt it doth not appeare, nor is there any reaſon to preſume that any of thoſe Commiſsions were of the Tenor of Ours; And in caſe thoſe Commiſsions did, amongſt other Powers, containe alſo the Powers of Our Commiſsion, touching the impoſing Armes upon the Subject, it doth not appeare that thoſe Commiſsions were particularly in thoſe very powers held unlawfull. Both which muſt (but neither will) be proved, otherwiſe there can be no application.

But the truth is apparently to be inferred out of the Roll, That upon thoſe Commiſsions the Subjects were inforced to go, or to finde others to goe at their owne charges, not onely out of their proper Counties, but alſo (upon occaſion of ſome inſurrections) into VVales, which at that time, and (untill the Act of Vnion 27. H. 8.) was to ſome purpoſes, at leaſt commonly reputed a diſtinct Dominion; as appeares even by this Parliament Roll, in theſe words,9. H. 4. R. Parl. n. 17. 6. H. 4. R. Parl. n. 9. 1. H. 5. R. Parl. n. 17. 2. H. 4. C. 10. Stat. 2. H. 4. cap. 20. That none of the ſaid Commons be diſtrained to goe into VVales, or elſe-where out of the Realme, and otherwiſe: (the uſuall phraſe in ſeverall Acts of Parliament, being alſo to this day, the Kingdome of England, and Dominion of VVales.) And ſuch a Commiſsion Wee may well admit to be againſt all thoſe three Statutes, without impeachment of Ours.

Wee ſhall ſay no more as to this Statute ſingle, but that (as We have obſerved before) both in the Parliament Roll, and Printed Act, the firſt Clauſe of 1. E. 3. concerning arming, being purpoſely omitted, it ſhewes that the meere matter of cauſing the Subject to be armed, was not the grievance then complained of, or meant to be redreſſed.

Having thus farre proceeded in Our particular Anſwers unto the ſeverall Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4. H. 4. as they were appliable to the firſt Objection made upon them, againſt Our impoſing of Armes upon the Subject. Wee ſhall, in the next place, proceed to the Anſwer of the other Objection made againſt Our Commiſsion, upon the Statute of 1. E. 3. and 4. H. 4. of Confirmation: (For as to the other Statutes of 13. E. 1. and 25. E. 3. We doe not conceive, that they are, or can be meant unto this purpoſe.) Hereupon the Objection is this:

That by the Statute of 1. E. 3 and 4. H. 4. the Subject is not compellable to go out of His County; but in caſe of the ſudden coming of an Enemy, which the Declaration interprets of an actuall Invaſion: But this Commiſsion gives Power, not onely to compell the Subject to goe out of his County before an actuall Invaſion (as the caſe is put in the ſtating of it) but (as it is expreſſed in other parts of the Declaration) without Limitation, and at pleaſure.

To this Objection Our Anſwer is, That both the ſence of the Statutes, and of the Powers of Our Commiſsion are miſtaken. For firſt, (as Wee have before ſtated it) Our Commiſsion gives that Power of conducting out of the County, onely againſt an Enemy, and for defence of the Countrey, in caſe of imminent danger, and but when and where it ſhall be moſt needfull; (And ſo not without limitation, and at pleaſure.)

And ſecondly, as to the ſence of the Statutes, We do deny, that the Subject is not compellable to goe out of his County, unleſſe in caſe of an actuall Invaſion, by a forraigne Enemy.

And herein, though Wee have not upon this Commiſsion neceſſary occaſion to diſpute it; yet Wee cannot but obſerve, That the Declaration allowes of no neceſsity of compelling the Subject out of the proper County, in caſe of actuall rebellion, and onely againſt a forraigne Enemy; the ground whereof is a miſtake (in recitall of the Statute of 1. E. 3. by the Act of confirmation of 4. H. 4. of the word, And betweene the two words, neceſsity and ſuddaine comming; The Act of 1. E. 3. going thus, That no man be diſtrained to goe out of his County but where neceſsity requireth, and ſudden comming of ſtrange enemies into the Realme. And the Act of 4. H. 4. (which as We have before obſerved, reciteth not the whole Statute of 1. E. 3. but ſo much thereof, as upon occaſion of the late forraigne ſervice did then concerne the preſent complaint) being in theſe words, That none ſhall be diſtrained to goe out of their County, but onely for the cauſe of neceſſity (Of) ſudden comming of ſtrange enemies into the Realme.

Whereas, if in this recitall the word (And) had been put in place of the word, Of, or before it, both had agreed, and ſo the ſence of the Statute, as to this matter of going out of the County, had been upon 4. H. 4. as it is upon 1. E. 3. That no man be compelled to go out of the County, but in caſe of neceſity or coming of enemies: the word (And) in expoſition of Statutes being moſt frequently taken for (Or) according to the Subject matter, and ſo the Statute had excepted two caſes neceſsity ariſing from within (by actuall rebellion) and neceſsity ariſing from abroad (by ſudden coming of ſtrange enemies:) this exception in both being abſolutely neceſſary for defence of the Realm and according to the Common Law (of which the Statute is but declarative) and the practice both before and ſince. And indeed it could be no otherwiſe in property of ſpeech, for there cannot be a cauſe of neceſsity of the ſudden coming of enemies, but there is a neceſsity of defence againſt their coming.

And in this caſe We are to be guided by the Statute 1. Ed. 3. as it was Originally, as it is alſo truly ſet forth in the Declaration, and agrees with all printed Statutes both in Engliſh and French, & ancient Manuſcripts, all of them derived from the Originall Statute Roll which was loſt before 4. H. 4. (that which now remains being but a Tranſcript of a Tranſcript.)

Thus then, without more, We ſhall apply Our ſelves to the Objection as it is made upon the words of 1. E. 3. both in the Originall and the Recitall. And We ſay That the Subject is compellable to go out of his County for defence of the Kingdom, as neceſsity ſhall require, before the Landing or other Entry of the Enemy, to prevent his Landing or Entry.

And for this We ſhall but recite the words againe; And they are theſe, That no man be compelled to go out of his County, but where neceſsity requireth and ſudden coming of ſtrange enemies into the Realm.

Wherein it ſeemes to Us moſt plaine, that theſe words require no ſuch Actuall Landing, or Entry of an Enemy into the Kingdom, before the Subject is Compellable out of his County. For the words of the Act are not (as to this point) when the Enemy is come, but upon the coming, not within the Realm, but into the Realm. And all men know, that in ordinary Speech, a man may be ſaid to be coming into a place when he is upon a remove to a place; but moſt properly, when he is on his way, eſpecially when he approacheth, with an intention to enter thereinto, and in ſuch ſence theſe words of coming into the Realm muſt be taken in this Statute.

But in caſe the words (of the enemies coming into the Realm) might bear a doubtfull interpretation, that ſence muſt be taken, which agrees with the Common Law before practiſed, Whereof this Act is but Declarative, & the conſtant practice of all ages ſince that is, That the Subjects have ever been commanded, and gone out of the County againſt the Enemy before any Landing or Entry.

And to give this Statute of 1. E. 3. any other ſence were againſt all Common reaſon, and the rules of government and defence; which is, not to let the Enemy firſt come in, if it be poſſible to keepe him out: and it may be much more eaſe to prevent the coming into the Land, (eſpecially by Sea in oppoſing the Landing) then afterwards to expell him: And it cannot be expected, that the Forces of one County alone, ſhould be able to reſiſt the entry of a powerfull Enemy.

And laſtly, as for thoſe Commiſſions, which were damned in 4. H. 4. thoſe had no reſemblance to our Caſe, nor are warrented by the Exception of 1. E. 3. For that (as appeares before) the Subject was then carried out of the County not for defence of the Kingdom, as the Exception of this Statute requires, but for ſuppreſſion of an Inſurrection in Wales, which was not then taken as part of the Realm: and the Prayer of the Commons in 4. H. 4. made upon that Occaſion, and therein grounded upon 1. E. 3. was not meerly becauſe they were carried out of the Counties, but becauſe they were carried out of the Realm in a Service, which was not for the neceſſary defence thereof.

We have thus far, upon this laſt head of Our diſcourſe, only Anſwered the Objections made upon theſe Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4▪ H. 4. We ſhall now conclude this part of Our Anſwer▪ with a return of all thoſe Statutes againſt the Declaration, and in juſtification of Our Commiſsion.

Firſt, as concerning 13. E. 1. ſince that (as We have before obſerved) the Statute was made only with relation to the keeping of the peace, it implies, that there is another rule in the matter of impoſing of Armes for defence extraordinary.

Secondly, as for 1. E. 3. (beſides Our former obſervation, That in all probability, the Act was made but upon Complaint againſt the exceſſe of Charging by the Commiſsioners, and not againſt the powers of that Commiſsion, which had lately before iſſued, which rather juſtifies the Commiſsion then otherwiſe.) We further ſay, That if We ſhould admit, that the Statute of 1. E. 3. That no man ſhould be charged to arm himſelfe, otherwiſe then he was wont in the time of the Kings Progenitors, hath any relation unto 13. E. 1. and that ſo the ſence thereof were, That none ſhould be compelled to finde Arms, otherwiſe then according to that Statute of 13. E. 1. Yet then that Statute of 1. E. 3. (as 'tis plain) muſt be meant only as concerning ordinary defence; and that as the Subject is in cafe of neceſsity to be carried out of the County, So in that caſe he may be compelled to be Armed otherwiſe then at ordinary times.

To this purpoſe We note, that in the Statute there are two diſtinct propoſitions joyned together, one againſt the Arming of the Subject, the other againſt going out of the County; And the clauſe which is next ſubjoyned is an exception Sinon pour cauſe de neceſsite, &c. Unleſſe it be for neceſsity, and the ſudden coming of ſtrange enemies. Which exception, upon ſuch admittance, is not only appliable to that laſt clauſe before, concerning the going out of the County, but as to the Arming: The ſence thereupon alſo being thus; That though in caſe of ordinary defence, the Subject be not compellable to bear other Arms then according to 13. E. 1. as neither to go out of the proper County; yet for the extraordinary defence of the kingdom, in caſe of neceſſity (wherein more muſt be done then ordinarily) both, Arms are to be impoſed by other rules then in 13. E. 1. and alſo the Subjects are to go out of the County; For ſo it followeth in the next words of the Act; which are theſe, And then it ſhall be done, as bath been uſed in times paſt, for the defence of the Realm. And this ſenſe, upon this admittance, cleerly appeareth out of the courſe of former times in ſuch caſes, to which the Statute doth refer.

As for 25. E. 3. (beſides that the Declaration faith it is to the ſame effect with 1. E. 3. and was made with relation to a forraign war, as We have obſerved,) if (as the Declaration muſt admit) that the exception of finding men at Arms &c. by Common conſent, and grant in Parliament, be intended as well of Acts of Parliament paſt as to come, then Our Commiſſion, in the power of impoſing Arms, being warranted by 1. E. 3. is alſo warranted by that Act of 25. E. 3.

And for 4. H. 4. (beſides what We have before obſerved, upon the omiſsion therein of the firſt part of 1. E. 3. concerning impoſing of Arms, and that it applies 25. E. 3. but to a forraign war) the generall ſence, and Judgement of that Parliament, excepting then only againſt other Commiſsions, ſeems to allow of this; for that otherwiſe, it is not to be imagined, that immediately in the ſame yeer, there ſhould iſſue out a Commiſsion of Array, and in the next yeer, there ſhould iſſue out that other which was corrected in 5. H. 4. both of the ſame form, and the latter bearing Teſte the day of the Summons of the Parliament of 5. H. 4.4. H. 4. rot. Parl. part. 2. m. 10. And that at that Parliament, though ſome amendments were made in it, yet no exception ſhould be taken to the legality of the powers: whileſt (as the Declaration obſerves) it is probable, That many of the Houſe of Commons, and it is certain that moſt of the Houſe of Lords, were members of the Parliament of 4. H. 4. and knew the meaning thereof.

And thus we have anſwered to the full ſatisfaction (as We hope) of all indifferent Judgements, the ſeverall Objections made againſt the legality of Our Commiſsion of Array as it ſtood before, and at the making of the Act of 5. H. 4. and thereby proved, That Our Commiſsion was warranted by the Common Law▪ That the powers thereof remain untouched by the Statutes of 1. E. 3. 25. E. 3. or 4. H. 4. And that it was afterwards allowed and ſetled (as a rule or pattern, whereby Commiſsions ſhould iſſue in after ages) by the Act of Parliament of 5. H. 4.

We have yet ſome other Objections in Our way, which admitting the legality of Our Commiſsion as it ſtood in 5. H. 4. are made againſt it upon ſome latter Acts.

The firſt in time is upon the Statute of 4. and 5. P. & M.c. 4. which ſettles an aſsize and proportion of Men, Horſes, and Arms, which every man was to finde; which the Declaration ſaith was without Queſtion, a repeale of this Statute of 5. H. 4. And accordingly, We ſhall take that firſt into conſideration, For though upon the repeal of that Statute by I. Jac. c. 25. the Declaration agrees, That Our Commiſsion, if once ſetled by 5. H. 4. is now again in force, Yet an inference is made from thence, That the Parliament of 1. Iac. would never have repealed that Statute of 4. & 5. P. & M. if they had thought that any ſuch power of impoſing Arms, as is in the Commiſsion, would have been thereupon revived.

The words of the Statute of 4. & 5. P. & M. cap. 2. are theſe. Be it enacted, &c. That as much of all and every Act and Statute concerning onely the keeping or finding of Horſe, Horſes, or Armour, or any of them heretofore made and provided, and all and every forfeiture or penalty concerning onely the ſame, ſhall be from henceforth utterly void, repealed, and of none effect.

To this We ſay, firſt, that 4. & 5. Phil. & Mar. doth not repeal 5. H. 4. either by the words or meaning.

As to the words, They extend onely to a repeal of ſuch Acts which do appoint particular Aſsizes (or Aſſeſſements) of Arms: all which upon that Statute of 4. & 5. Ph. & M. (which appoints a new Aſsize for kinde of Arms and proportions) would be either contrary or altogether uſeleſſe. And to that purpoſe the Statute ſpeaks of repealing of Acts concerning keeping or finding of Horſe, Horſes, or Armour, which, as it muſt be meant of Acts concerning keeping or finding of Horſes in particular for kind or number; So as concerning (armour) in generall, it muſt, by the conſtant Rules of conſtruction of Statutes, be meant of Acts of the like nature as the former, that is, Acts concerning the appointment of ſome particular armours, as a Gorget, a Breſt-plate, and the like, ſuch as were the Statute of 13. E. 1. and 33. H. 8.

But this Statute of 5. H. 4. is nothing concerning the appointment of any particulars, either for the kind of Arms or proportions: but doth onely enact a Commiſsion iſſuable, without commanding that it ſhall iſſue, which is referred to the Kings pleasure (upon a lawfull occaſion) Nor doth the Commiſsion it ſelf mention (as is apparent) any particularity of Arms or proportions.

And if the Statute of 4. and 5. Ph.& M. were meant of ſuch Statutes, as ſpeake of finding Arms in generall, it had as well repealed the Statutes of 1. E. 3. 25. E. 3. and 4. H. 4. as this Act of 5. H. 4. which no man will ſay was ever intended.

But in truth, this Commiſsion being in generall, doth no wayes contrary this Statute of Ph. & M. but that the particulars of the Aſſeſſement by that Act, both for the ſeverall Kinds of Arms and proportions, might have been very well put in Execution by this Commiſsion.

For the Commiſsion gives Power to aſſeſſe every man juxta ſtatum & facultates, According to his degree and Ability. And this Parliament of 4. and 5. Ph. & Ma. appointing Arms ſitting for defence of the Kingdom in thoſe times, and proportions fitting (in their Iudgements) for the ſeverall degrees and abilities of every man; That Act did not thereby take away the power of the Commiſſioners wholly, but did only give particular rules for the kind of Arms and proportions, which the Commiſsioners were to obſerve in the execution of their power, thereby only regulating, but not deſtroying their powers.

And if this Statute of 4. & 5. P. & M. had taken away the firſt Powers of the Commiſsioners concerning arming, yet had it not taken away the other ſeverall and independent Powers of Arraying, Training, Muſtring, or Conducting thoſe men ſo furniſhed according to that Statute, but that they had remained to have been executed (at leaſt by a diſtinct Commiſsion which might have been iſſued at pleaſure for that purpoſe.)

And this alſo appears by the Statute of the ſame Parliament of 4. & 5. P. & M. cap. 3. (which is in force at this day) which being concerning muſtering, hath occaſion to mention, and doth expreſſe the old power ſtill remaining to iſſue Commiſsions of that nature; in theſe words, That if any perſon that ſhall be commanded at any time hereafter generally or eſpecially to muſter afore any ſuch who ſhall have authority or commandment for the ſame, by, or from the King or Queens Majesty, or the heirs or ſucceſſors of the Queens Majeſty, or by any Lievtenant, &c. do abſent himſelfe, or at his appearance do not bring his best furniture of Array and Arms as he ſhall then have for his perſon in readineſse, ſhall be impriſoned, &c.

But neither by that nor the other Statute of P. & M. cap. 2. is there any new authority given to the King to grant Commiſsions for Muſters, but the ſame is admitted to continue as not repealed. And as to that point of appearing at Muſters, We made uſe of that Statute of 4. & 5. P. & M. cap. 3 in Our Proclamation: And doe wonder how the Penner of that Declaration could imagine, We meant any ſuch further uſe therein upon that Statute, as the Declaration ſets forth.

And here by the way We obſerve a mention in this Statute, of 4. & 5. P. & M. cap. 3. of a power of muſtering in Lievtenants, to whom other Powers contained in Our Commiſsion were alſo granted, and might have been alſo mentioned in this Statute, if there had been occaſion.

And ſecondly, as to this Statute of 4. & 5. P. & M.c. 2. We ſay, That in caſe that Act of 5. H. 4. had been repealed by 4. & 5. P. & M. yet this Commiſsion had ſtill continued in force notwithſtanding any bare repeal; for that (as we have proved) this commiſsion was (before that Statute) warranted by the Common Law, which did ſtill remain in force ſo far as it was not expreſly contrary to the further particulars of that Act.

And how We come to the Objection principally▪ intended againſt this Commiſsion upon the alteration of the Law at this day ſince 5. H. 4. wherein the caſe is this.

The Statute of 13. E. 1 made an aſsize of Arms for the ſeverall kindes and proportions according to mens ſeverall eſtates. Then 5. H. 4. enacts this Commiſsion with power to aſſeſſe men according to their abilities. Afterwards 13. E. 1. is repealed by 21. Iac.

The argument hereupon in the Declaration is made thus:

That the Commiſsion, as to the finding of Arms Iuxta ſtatum & facultates, is ſo grounded upon that Statute of 13 E. 1. (which was then in force, and did enact the finding of Arms juxta ſtatum & facultates, in manner as is therein expreſſed) that that Statute of 13. E. 1. being ſince repealed, that Commiſsion is likewiſe repealed, and become unwarrantable at this day.

For anſwer whereunto, in the firſt place, We do deny that this Commiſsion is any waies grounded upon 13. E. 1. Firſt, for that (as We have proved) 13. E. 1. originally was not meant, as a proviſion of Arms for defence extraordinary, much leſſe ſo intended here.

Secondly, if it were for defence extraordinary, yet neither this Act of 5. H. 4. nor the Commiſsion thereby ſetled, have any relation thereunto in words, much leſſe in meaning.

For the words, There is no mention of 13. E. 1. either in the Act or Commiſsion, but the words of the Commiſsion are generall, for impoſing Arms ſecundùm ſtatum & facultates; According to every mans degree and ability, without limitation, of the kinde of Arms, or particular ſeverall proportions of eſtates.

And for the meaning, We cannot conceive it to be leſſe, then according to the full extent of the words, For there is leſſe reaſon to imagine that the Parliament of 5. H. 4. did any waies intend the aſſize of Arms eſtabliſhed by 13. E. 1. then there was to imagine the like upon the Act of 1. E. 3. for that between 1. E. 3. and 5. H. 4. all kinde of Arms were more altered then betwixt 13. E. 1. and 1. E. 3. and in this ſpace of time, Guns were come into uſe in England, which were both neceſſary to be commanded and provided againſt by other arms.

And to avoid Repetitions, We further referre Our ſelf, in theſe two particulars, to what We before obſerved upon the Statute of 1. E. 3.

And as for any reſtraint of thoſe generall words of Our Commiſsion, by any conſtruction of Law to the particular aſsize of 13. E. 1. We ſay, That though a ſubſequent particular Act may reſtrain the generall words of a Commiſsion (as We have ſaid before; upon the Statute of 4. & 5. Ph. & M.) becauſe the ſubſequent act, as it may take away, ſo it may limit any Power given either by Common Law or Statute, yet a precedent particular Act (upon the ſame reaſon, becauſe it hath no ſuch power) doth not regularly reſtrain the generall words of a ſubſequent Statute, which hath Power to controll the former; and (as in Our caſe) where the meaning appears to be as large as the words cannot poſsibly reſtrain them.

But in this We need not labour, For though the Declaration in making way for this Objection, admits the Commiſsion, to have ſome colour to be legall, as grounded upon 13. E. 1. as to that part of finding Arms juxta ſtatum & facultates: Yet it is the main and throughout ground of the Declaration, That this Commiſsion, becauſe it is generall, is againſt the Statute of 13. E. 1. and the other Statutes, and ſo void; whereas, if the Commiſsion had been reſtrained to 13. E. 1. then it could not have been void as contrary thereunto.

But, admitting that this Commiſsion was, by conſtruction of Law, neceſſarily to be regulated according to 13. E. 1. whileſt that Statute was in force, Our anſwer is, that nevertheleſſe this Commiſsion did not fall by the repeal of that Statute.

Wherein We ſhall admit (which the Declaration ſuppoſeth, though by Us it is diſproved) That this Commiſsion was not warranted at the Common Law before the Statute of 5. H. 4. and then the Caſe is but this.

The Statute of 13. E. 1. doth appoint a particular Aſsize of Arms for kinds and proportions, according to this neceſſary rule, the arms for the kinde ſhall be fit for defence; and for the proportion, ſhall be according to mens abilities (for ſuch is the Act.) Afterwards 5. Hen. 4. doth eſtabliſh this Commiſſion, wherein there is no particular reference unto this Statute of 13. E. 1. but the rule is generall to charge Arms, for the kinds, according to the uſe of the time (for that is neceſſarily implied) and for the proportions, according to mens degrees and abilities: which are equall rules fit ever to continue, though the kinds and proportions, may and muſt alter.

In this caſe We doe agree, That if the Commiſsion had expreſſely referred to charge according to that Statute of 13. E. 1. then that Commiſsion could have been no longer of force then the Statute had continued. For then it had been no more in ſubſtance, then if the powers had been but particular, to charge certain Arms, and in certain proportions according to that Statute. And in this ſence We muſt agree with the Declaration, That a Commiſsion being ſo grounded upon a Statute, upon the Repeal of the Statute, both fall together.

But in this caſe, (thus admitted) where the Commiſsion is generall, and if 13. E. 1. had never been, muſt have had its full operation, according to the words, both for the kind of Arms and proportions, and was regulated but by a bare conſtruction of Law, both for Arms and Proportions by 13. E. 1. which the Parliament might think fit to be a rule for that time; it ſeems ſtrongly to follow, that when 13. E. 1. (which was the only impediment why it did not work according to the extent of the words) is repealed, the operation of the Law upon this Commiſsion, by force of that ſtatute, muſt likewiſe ceaſe: and the Commiſſion muſt be conſtrued according to the words, the rather for avoiding of this miſchief, that otherwiſe the Kingdom ſhould be without all neceſſary means to put it into a poſture of defence, which that Act did intend principally 〈◊〉 , perpetually to provide for.

But more fully to take off this Objection, We muſt here remember (what we have proved before) that the Powers of this Commiſsion in the latitude of the words thereof for impoſing Arms, ſecundùm ſtatum & facultates, according to mens degrees and abilities, was warranted at the Common Law before any Statute, and was to be executed without the direction of any particular Aſsize for kinds and proportions: As at this day ſeverall like powers for aſſeſsing men both by Statute and Common Law according to their abilities, as for high ways, poor of the Pariſh, and the like are to be executed.

Theſe then being the Powers at Common Law, As it is cleer they are not taken away by any affirmative Statute, (ſuch as 13. E. 1. ſeems to be:) So if We ſhall admit (as ſtrongeſt againſt Our ſelf) that there were any negative words in this Statute or any other Statute grounded thereupon, that the Subject ſhould not be compellable to be armed otherwiſe, (which other Statutes (according to the ground rightly taken in the Declaration) muſt neceſſarily fall by the repeal of 13. 〈◊〉 1. Then that Statute being repealed, the Commiſsion thus freed of thoſe Statutes, remains in full force as it was at the Common Law.

And now that wee have paſſed over the Acts of Our Predeceſſors as well before as after the Act of 5. H. 4. We are encountred with Our own Acts, the Petition of Right, and a Recitall in an Act this preſent Parliament, as being both againſt Our Commiſsion.

Whereunto We need to ſay but this. That it appears out of themſelves, that neither of them were ever meant to introduce a new Law: So as if (as We have proved) Our Commiſsion be not againſt the Law, as it ſtood formerly, they were not Intended nor juſtly ought to be extended againſt it. But to give yet more particular and full anſwers thereunto; We ſay, Firſt, for the Petition of Right, it no waies extends to our Commiſsions of Array.

The Objection made upon it ſtands thus. The Petition of Right ſets forth, That by the Lawes and Statutes of this Realm, the Subjects have inherited this Freedom, That they ſhould not be compelled to contribute to any Tax, Tallage, Aid, or other like charge, not ſet by common conſent in Parliament. And after complains, That divers charges have been laid and levied upon the People by Lords Lievtenants, Deputy Lievtenants, Commiſsioners for Muſters, Juſtices of Peace, and others, by command or direction from Us, or Our Privy Councell, againſt the Laws and free Cuſtoms of the Realm, which the Declaration alleadgeth to be the breach of thoſe Laws.

Then the words of the Petition are thus applyed, That here is a Taxe or Charge impoſed upon the people, by Compelling them to find Arms by command and direction from Us, under Our great Seal, without conſent in Parliament.

And the meaning of the Petition is thus inforced, That it is very well known, and doth ſufficiently appear, that the charges there mentioned to be laid by Lords Lievtenants, and Deputy Lievtenants, were the charging of the Subjects with Arms againſt Law, by colour of their Commiſsion from Us, and conſequently this Commiſsion is againſt the Petition of Right.

For Our cleerer anſwer, We ſhall ſet down the ſumme of the Petition, for ſo much as concerns the unlawfull charging of the Subject. And it is this.

Firſt, the Petition recites ſeverall Statutes, as made againſt the compelling the Subject to the making or yeelding any Gift, Loan, Benevolence, Taxes, Aids, or ſuch like Charges without Common conſent in Parliament; and next ſetteth forth a violation of thoſe Statutes, by the Commiſsions of Loans, and Execution of them; and that divers other Charges had been laid and levied by Lords Lievtenants, and others (as is aforeſaid) and laſtly the Prayer is ſubſtantively of it ſelf, without any relative words, yet extends to all that was before complained of, and contains the ſubſtance of all thoſe former Statutes in theſe words, That no man be compelled, to make or yeeld any Gift, Loan, Benevolence, Tax, or ſuch like Charge without common conſent by Act of Parliament. And Our anſwer to that part of the Prayer, amongſt the reſt, is, Let right be done as it deſired.

And Our anſwer to the Objection ſtands thus.

Firſt, that whatſoever ſence any words of the Preamble may ſeem to import, yet without queſtion, there is no more in this Preamble then is after contained in the Prayer: So if Our Commiſsion be not againſt the Prayer, there can be no Argument againſt it drawn out of the Preamble, or if in truth there were more in the Preamble then in the Prayer, (whereunto only the Royall aſſent extends,) yet nothing could bindingly be concluded thereupon (as We ſhall further ſhew upon occaſion.)

This then onely reſts to be conſidered upon this Objection; Whether the powers, in Our Commiſsion, to compell the Subjects, able of body and eſtate to Arm themſelves, and in caſe of impotency to find Arms for others, for the neceſſary defence of the Kingdom, can be ſaid to be a compelling of the ſubject, to make or yeeld any Gift, Loan, Benevolence, Tax, or other like Charge, contrary to the Prayer of the Petition.

Upon the Caſe thus truly ſtated, it is cleere, That here is no yeelding or making of Gift, Benevolence, or Loan; And as for making or yeelding any Tax or other like charge, though it be true, That this arming a mans ſelf, or finding Arms for another, cannot be done without Charge: Yet We appeal to every mans underſtanding, whether Our Subjects can, upon this Commiſsion, be ſaid to make or yeeld (for ſo are the words) any Tax or other Charge againſt the Petition, any more, then if We command a City to repair their Walls, or a Levell (putting the Caſe before any ſtatute, to take away all colour of evaſion) to repair the Sea-banks, when they were in decay, being no particular advantage to Us, but for the Common good of themſelves.

The truth is, That albeit the impoſing of divers charges, & commanding divers Acts drawing charges upon the Subject, though poſsibly for their advantage, are void in Law: notwithſtanding it doth not follow that they are void as againſt this Petition. For the Petition of Right, as againſt the charges therein mentioned, is onely to be intended of Money, or other thing valuable, and to be parted with to or for Us, or Our advantage: ſuch as are all the charges more ſpecially mentioned in the preamble and Prayer, as that of Gift, Loan, and Benevolences, And ſuch as were thoſe Charges intended in the Preamble under the generall expresſion of divers other Charges impoſed by Lord Lievtenants, &c. which We think is very well known to moſt Counties, to have been meer Pecuniary Payments, and which We ought to have born. And for the other charges, that is, of Taxes, Tallages, Aydes likewiſe mentioned, which as to this purpoſe are but Synonoma, and of one ſignification, they are meant of money or other things valuable, and for the King; and ſo uſed in the old Statutes, and had been in former times impoſed upon the people, without Act of Parliament; and accordingly all of them are ſo to be expounded in the Preamble. And the Prayer of the Petition ſaith nothing expreſſely againſt the Commanding the Subject to do a thing which may be neceſſarily of expence or Charge, (wherein the Act is onely intended, and the Charge but a neceſſary Incident) but the Prayer is onely againſt the compelling of the Subject to yeeld, or make thoſe kinds of charges: So as the cleer ſence of the Petition, both according to the occaſion of complaint therein mentioned, and the Laws whereupon it is framed, as well as the propriety of the words, is only againſt drawing from the Subject, either money or moneyworth, by any of thoſe particular charges therein mentioned, or any other charge of like nature (under what ſpecious title ſoever) for the Kings advantage, which the more plainly appears, for that the charge muſt be yeelded or made, as upon Gift, Loan, &c. which muſt neceſſarily be intended unto ſome perſon, and no other perſon can be here colourably intended but the King.

And if the Petition, by any conſtruction, may extend againſt the commanding of any Acts, which in the execution may induce charges, yet ſuch charges muſt (according to the very words of the Petition) be ſuch like Charges, that is for Us or Our advantage, as the particular Charges therein mentioned, of Gift, Loan, &c. But this charging of the Subject with Arms for the neceſſary defence of the Kingdom cannot be ſaid for Our particular advantage, all Our Subjects having therein a common intereſt.

As for the meaning of the Petition inforced in the Objection from the Charges by Lord Lievtenants, and others complained againſt in the Preamble, ſure We are that thoſe muſt be ſuch in the particular, as are after contained in the generall words of the Prayer, to which We have anſwered before; And though it be to this purpoſe ſaid in the Declaration, That thoſe Charges by Lord Lievtenants and others, were meant of charging of the Subject with Arms, certainly no ſuch thing can appear in the Petition, which ſpeaks but only of divers charges, but names none in particular; nor can there be any other aſſurance that the Houſes did intend any ſuch thing, but by Votes, wherein they onely ſpeak: and if any ſuch Votes had been, We doubt not but We ſhould have found them inſerted in this Declaration: And a particular complaint of ſo great a grievance (as Our Commiſſion is made to be) would have been expreſſed in the Preamble of the Petition, with the Quotations of Statutes to the contrary, as was done concerning other grievances. But in truth it is well known, That about that time, upon occaſion of Our wars, there were divers other charges impoſed by Our Lievtenants, and others, of a far differing nature, moſt of which were by direction from Us or Our Privie Councell, according to the exigency of the time and ſome former practice.

And We do beleeve, that there was at that time neither complaint or occaſion of complaint againſt the impoſing of Arms for home defence of the Kingdom. Howſoever We are ſure that no ſuch complaint was particularly repreſented unto Us, or Our Anſwer intended thereunto.

And now to cleer this ſence of the Petition 〈◊〉 of the judgement of both Our Houſes this 〈◊〉 Parliament, We demand this Queſtion: If ſo be the impoſing Arms for defence be a charge upon the Subject within the meaning of this Petition, how the two Houſes will juſtifie their Ordinance, which We are ſure they will not call an Act of Parliament; for without an Act of Parliament, no charge thereby provided againſt, can be impoſed upon the Subject, the words being plain, That no man ſhall be compelled to make or yeeld any Gift, Loan, Benevolence, Tax, or other ſuch like charge, without common conſent by Act of Parliament.

And now, ſince this Declaration hath given Us ſuch occaſion to examine Our Commiſſion upon the Petition of Right, We ſhall conclude, out of that Petition, That that Parliament did conceive the powers of this Commiſsion warrantable in every point.

For it is plainly to be obſerved, that the Commons did then take into conſideration the generall grievances of the Kingdom, more particularly, concerning Military affaires, and therein the actions of Lord Lievtenants, and Deputy-Lievtenants with their Commiſſions and powers, and their exceeding of their power, as expreſſely the billeting of Souldiers, and the payment of Billet-money, Muſter-maſters fees, and others of that nature, were then in diſpute. And although the two Houſes could not but take notice of the impoſing of Arms upon the Subject by Our Commiſsion, of Lievtenancy, & their powers to Levy, call together, Arm, Array, Train, and Muſter Our Subjects inhabiting in Our ſeverall Counties, and to conduct and lead them againſt all Our Enemies, and all Rebels and Traytors, from time to time, as need ſhould require, (in which particulars they contained the powers of Our Commiſsion of Array:) Yet the Complaint was not made againſt them, for what they did by vertue of their Commiſſion (no more then againſt the Juſtices of Peace, though complained of, together with the Lievtenants) but for matters wherein they did exceed their Commiſſion, upon the Command, or direction from Us, or Our Councell; the Petition throughout diſtinguiſhing betwixt ſuch Commands, or directions, and Our Commiſsions.

So that We conclude, here was not only an admiſſion, but an approbation of thoſe powers, by that Parliament.

We come now to the recitall in the Preamble of the late Statute made this Parliament. The words are theſe.

For as much as great Commotions, and Rebellions have been lately raiſed and ſtirred up in His Majeſties Kingdom of Ireland, by the wicked plots and conſpiracies, of divers of His Majeſties Subjects there (being traiterouſly affected) to the great endangering, not only of the ſaid Kingdom, but alſo of this Kingdom of England, unleſse a ſpeedy courſe be taken for the proventing hereof And for the raiſing and preſſing of men for thoſe Services. And whereas, by the Laws of this Realm, none of His Majesties Subjects ought to be impreſſed, or compelled to go out of His County, to ſerve as a Souldier in the Wars, except in caſe of neceſsity of the ſudden coming in of ſtrange Enemies into the Kingdom, or except they be otherwiſe bound by the Tenure of their Lands or poſſeſsions &c. (upon which Preamble, there is, in that Statute, ſome proviſion made for a time for raiſing and impreſsing men for thoſe Services.)

And upon this Preamble, the concluſion is made in theſe words, That this, Commiſsion is directly contrary to this Declaration is ſo evident, that it requireth no application.

To this Objection, We ſay, We might make Our Anſwer as ſhort as the inference is, by affirming, That it is evident, that this Commiſsion is not contrary to this recitall; And ſurely We think that what We have already opened, being applyed to this Objection, would warrant that Anſwer.

But that We may leave nothing undone, that may tend towards the full ſatisfaction of Our good people, We ſhall alſo give this a particular anſwer.

Firſt, We ſay, That if this recitall had been an Act, yet there were nothing in Our Commiſſion contrary to the letter of it, for that by this Commiſion, no man is compellable by any ſpeciall words to go out of his County.

And the generall words, (giving power to the Commiſsioners, for leading them to the Seacoaſt or elſewhere (as We have often repeated) are with theſe limitations: They are to lead them, but when there is imminent Danger of enemies, for defence of the Kingdom; and then only they are to be led to ſuch places, as ſhall be neceſſary for the expulſion, vanquiſhing, and deſtruction of the ſaid enemies, And this is a caſe of neceſsity both within the words of this recitall, and according to the ſenſe of the ſame words, in the Statute of 1. E. 3. and 4. H. 4. (therein meant) as We have before ſhewed.

And thus we might leave this Objection, but that it implies a matter of a greater conſequence then plainly appears. That recitalls of the Law, in Preambles of Statutes are binding; For in this Objection, this recitall is called a Declaration of the Law and Our Commiſsion ſard to be contrary to that Statute, and it further implies, That even in the greateſt and moſt horrid Rebellion, the Subject cannot be compelled out of the County, for the ſuppreſsion thereof. But to this We anſwor, That the difference is apparent, between an Act of Parliament declarative, and a recitall in a Preamble: For ſuch an Act (in any matter though miſtaken) being aſſented unto by Us, and Our two Houſes, is equally binding (as having equall authority) with an Act introductive of a new Law, But the recitall in a Preamble, is no part of the Act (the Royall aſſent being only to that, which is expreſſely or tacitely prayed to be enacted:) Nor can it any wayes ſo much as imply Our opinion: For otherwiſe, Kings muſt be inforced oftentimes to deny a good Law, for an ill Preamble; The conſequence whereof is great in ſuch an Act as requires expedition, where a Bill once denyed, is not regularly to be offered again in that Seſsion of Parliament.

And if it were needfull, divers miſtakes, of the Law in Preambles might be produced by which We would be loath to bind our Subjects.

Nevertheleſſe, though Preambles be not in themſelves ſufficient to declare Laws, yet We deny not they are of good uſe, though not convincing Arguments to expound them.

And for Our power in the matter of Rebellion, beſides what hath been ſaid, We might alſo adde (if it were materiall to this Commiſsion,) Preambles, Recitals, and other neceſſary Inferences out of other Statutes (made ſince thoſe intended in this Recitall) which would prove, that in caſe of Rebellion all Our Subjects ought to aſſiſt Us, and to attend Our Perſon,See 11. H. 7 in the Preamble, That the Subjects, by the duty of their Allegiance, are bound to ſerve their Prince in his Wars, for the defence of Him and the Land, againſt every Rebellion, Power, and Might, reared againſt Him. And 11. H. 7. c. 18. Whereas every Subject, by the duty of his Allegiance, is bound to aſſiſt the King at all ſeaſons when need ſhall require; and moſt eſpecially ſuch as have by him promotion or advancement, as Grants, and Gifts of Offices, Fees, and Annuities, which are, and verily be bound by reaſon to give their attendance upon his Royall Perſon, to defend the ſame, when He ſhall fortune to goe in his Perſon in wars for defence of the Realm, or againſt his Rebels and enemies. And 5. El. cap. 5. Be it enacted infavour of Fiſhermen, and Mariners, That none of them ſhall hereafter at any time be compelled againſt his or their will, to ſerve as a Souldier upon the Land or Sea, otherwiſe then as a Mariner, except it ſhall be to ſerve under any Captain of ſome Ship or Veſſell for landing, to doe ſome eſpeciall exploit, which Mariners have uſed to do, or under any other perſon, having authority to withſtand any Invaſion of Enemies, or to ſubdue any Rebellion within the Realm. And ſee 19. H. 7. cap. 1, 2, & 3. E. 6. c. 2. And 4 & 5 Ph. & Mar. c. 3. upon Our command, for the defence thereof, whenſoever We ſhould require it.

And the truth is, the occaſion of this Act, now urged againſt Us, appears to be for the ſervice of Ireland, and the intention of it (for ſo much as is the enacting part) was to take away all queſtion concerning the preſsing of the Subjects of England for the ſuppreſsion of the Rebellion in Ireland. And ſo concerned forraign ſervice, and not home defence, either againſt Invaſion of Enemies or Rebels.

And thus far the work of the Declaration hath been to overthrow Our Commiſsion by Statutes alleadged to be directly againſt it. There remains yet ſome other Objections drawn from the opinion of former Parliaments, and the practice of Our ſelves and Our Predeceſſors, and thoſe not directly, but by inferences. But theſe, as we ſhall ſhew, are ſo farre from concluding againſt Our Commiſsion, that they rather prove the contrary.

The firſt of theſe Objections is upon the Statutes of 1. Jac. c. 25. and 21. Iac. c. 28. of Repeals: And is thus, That the Statute of 4 & 5. Ph. & M. cap. 2. having repealed this Commiſsion (for ſo the Declaration ſuppoſeth) They had ſhewed little care of their own and the Subjects liberty, in the Parliament of • . Iac. to repeal that Statute thereby to revive the power of this Commiſsion, which would have ſubjected the people to far greater bondage: and from thence inferreth, That it is not probable that the Parliament of 1. Jac. would have repealed,. 4 & 5 Ph. & M. As lik • wiſe from the Statute of 21. Iac. (which repealed the Statutes of 13. E. 1. and 33. H. 8.) That it is not probable, that the Parliament of 21. Jac. would have repealed thoſe Statutes (which in a moderate manner proportioned the Arms every man was to find in certainty:) And ſuffer an Act (meaning this of 5. H. 4.) to continue, which eſtabliſhed a power in the King without limitation, not only to impoſe Arms, but to command the perſons of the Subjects at pleaſure.

To this We ſay, that both the grounds of this Objection are miſtaken. For (as We have already ſhewed) neither is this Commiſsion repealed by the Act of 4 & 5 P. & M. Nor is there any ſuch unlimited Power given, or Bondage by it, as is pretended. And therefore Our Anſwer is, That it is no wonder that thoſe Parliaments might repeal 4 & 5 P. & M. as too hard; and 13. E. 1. & 33 H. 8. as of no uſe: and put the Militia of this Kingdom again wholly under the powers of this Commiſsion, (being ſo indifferent between both the other:) And indeed the Militia did after continue under Lievtenants, who had in effect the powers given by this Commiſsion.

And now We ſhall return this Objection thus:

That thoſe Parliaments of 1. Jac. and 21. Iac. would have ſhewed little care of the ſafety and defence of the Kingdom to have repealed thoſe Statutes which made proviſion for Arms, if they had thought there were no Law or Power left in the King to charge men with Arms for defence of the Kingdom, (as the Declaration affirmes the Law now to be.)

But whoſoever conſiders that at that time, and long before, the power of impoſing arms, was put in execution by Lievtenants, and Deputy-Lievtenants, by authority of their Commiſsions (which to this purpoſe are the ſame with Our Commiſsions of Array) and that this power was not complained of in thoſe Parliaments, muſt conclude it more then probable, that thoſe Parliaments did then conceive there was a ſufficient power remaining in the King to impoſe Arms.

The next Objection, is from the opinion of the Parliament of 4. and 5. Philip & Mary, c. 3 That if Our Commiſſion had been authorized by Act of Parliament, that Statute of Ph. & Mar. had been to little purpoſe, whereby the penalty of Impriſonment for ten dayes, or forty ſhillings is impoſed upon ſuch, as do not appear at Muſters, being Summoned thereunto by the Kings Commiſsioners authorized for that purpoſe: Intimating, as that the Act of Phil & Mar. would never have been made, if they had then conceived, that We had power to grant ſuch Commiſsions.

To this We anſwer, That the particular Arms and proportions of Arms, were then before appointed by the Statute of 4. and 5. Ph. & Mar. Cap. 2. under certain penalties upon thoſe who ſhould be defective, and ſo a great part of the care of the Commiſsioners of Array was ſupplyed by the proviſion of that Statute; and the Commiſsions of Array being not ſo proper, but in time of Danger, and of a larger extent, then the power of muſtering, a Commiſsion of Muſter (which is part of the power of a Commiſsion of Array) would then ſerve the ordinary turn: and for every ordinary default, but at a Muſter, in a time of no Danger, the puniſhment by 4. and 5. Ph. & Mar. cap. 3. was great enough.

And for return of this Objection, We ſay, (as We obſerved before) That this Statute gives no new power, to grant Commiſsions for Muſters, but admits the power to grant ſuch Commiſsions to have been in the King before that time. And whereas the Statute of 13. E. 1. appoints no other Officers but the Conſtables for view of arms, it appears by theſe Statutes of Phil. and Mar. that the King might appoint His Commiſsioners: which he could not, if this power of Arms had been wholly grounded upon that Statute.

The Laſt Objection of this nature, is grounded upon the Common opinion or practice; And is this.

That the Commiſsions of Lievtenancy, ſo grievous to the people, and declared illegall in Parliament, had not been ſo often iſſued, and ſo much preſſed upon them, if the Commiſsion of Array, not much differing from it in power, and not at all leſſe grievous to the Subject, might, by the warrant and authority of the Laws of this Realm, have ſupplied their room.

To this Our Anſwer is, That it ſtands upon two grounds: Firſt, That the Commiſsions of Lievtenancy were grievous. Secondly, That they were illegall: both which ſo far forth at leaſt as to the powers wherein they did not exceed the power of this Commiſsion (for the other powers are not now in queſtion) are cleerly miſtaken.

For, as for the grievouſneſſe, we ſay theſe Commiſsions were ſuch as had been long uſed in the happieſt times of Our Predeceſſors, and continued to Our Time: And ſuch grievances, as did, or might ariſe in the execution of theſe Commiſsions, not warranted by them, are no cauſe to quarrell at the Commiſsions themſelves, more then at the Commiſsions of Peace, becauſe ſome Juſtices of Peace have exceeded or abuſed their authority. And howſoever, Thoſe powers wherein they exceeded not Our Commiſsion of Array could not be grievous, as we have already ſhewed.

And as for the illegality of thoſe powers, We ſhall not, nor will Our people be ſatisfied by bare Votes, that they are illegall, The ſame being done without hearing of Our Councell, and without adviſing with the Iudges and demanding their opinions, (a courſe which was formerly uſed in Parliaments, as appears even by this Record of 5. H. 4. amongſt many others, but in matters of Law which have of late riſen in Our Houſes of Parliament, hath (for what cauſe We know not) been laid aſide.) But We again ſay, theſe powers in Our Commiſsions of Lievtenancies are legall, and if there be any clauſes in ſuch Comiſſiōs which are illegall, thoſe clauſes could not at all make the Commiſsions void for ſo much as was legall, much leſſe take away Our power of granting new Commiſsions, omitting ſuch clauſes.

But if We ſhould, for this time, admit the grounds of this Objection, That Our Commiſſions of Lievtenancy had been ſuch as this Declaration would have them, yet it is but a very inconſequent Argument, That thoſe Commiſſions would not have iſſued, ſo often, and been ſo much preſſed, if the Commiſsions of Array had been Legall.

For the Commiſsions of Lievtenancy conteyned not only moſt of the powers of the Commiſſion of Array, but in many things exceeded them, and were iſſuable in times of Peace, whereas Commiſsions of Array commonly iſſued in times of Danger only; and ſo there was occaſion for the one Commiſsion, when there was none for the other.

But on the contrary, (that we may retort this Objection alſo,) ſince that the Commiſsions of Lievtenancy, not much differing from the Commiſsions of Array in Power, (as the Declaration ſaith) and in many things exceeding them, have ſo often iſſued in the reignes of ſeverall of Our Predeceſſors, & were allowed by the Judges of thoſe times, obeyed without diſpute, and not queſtioned in the Parliament of 1. Iac. or 21. Iac. nor were theſe powers wherein they agreed with the Commiſsion of Array complained of by the Petition of Right, but rather admitted and allowed, as We have already ſhewed. It may very well be inferred that both the Commiſsions of Lievtenancy and of Array, (as to thoſe powers at leaſt wherein they agreed) were Legall and far from being any grievance to the Subject.

Thus far we have proceeded in the Examination, and clearing of the Objections made againſt Our Commiſsions of Array. Upon all which Objections, we ſhall further obſerve That although the Declaration denies Our power at this day of commanding to Train or Exerciſe; yet none of thoſe objections touch any thing upon thoſe Powers. So that if all were true which is objected, yet we ſhould ſtill have power (at leaſt by a diſtinct Commiſsion) to command Our Subjects to be Diſciplined, Muſtered, Trained and Exerciſed, with ſuch Arms as they had in a readineſſe; for that (as we have ſhewed before) theſe are diſtinct from the power of Impoſing of Arms, and may be ſeverally granted or executed.

And now upon the whole matter, the ſtate of Our caſe is this. It is Voted by Our Houſes of Parliament, That Our Kingdom is in imminent danger of deſtruction from enemies abroad, and a diſcontented Party at home; and that there is a neceſſity to put Our people into a poſture of Defence.

In this caſe, for defence of Our ſelves and Our Kingdom, We have awarded Our Commiſsions of Array, thereby giving power to the Commiſſioners (perſons, We hope, beyond exception) to cauſe Our Subjects to arm themſelves, or, if impotent in body, to find arms for others, according to their abilities, in a reaſonable and moderate proportion, and to muſter and train them at convenient times and places, and afterwards, upon occaſion to lead them, where there is a neceſsity for the defence of the Kingdom, and the Expulſion, vanquiſhing, and Deſtruction of Enemies.

And We have ſhewed, That the Powers of theſe Commiſsions, are grounded upon the very principles of government, and that without them, We could not defend and protect Our Subjects, (as We are bound by Our oath at Our Coronation) That they are warranted by the Antient Common Law, allowed by the conſtant practice of former ages eſtabliſhed by the Parliament of 5. H. 4. (which cauſed a Copy of theſe Commiſsions to be entred upon the Roll, as a Rule or Preſident for after times) and are not repealed, or altered by any Statutes now in force.

And yet, though this Danger, and the neceſſity of putting the Kingdome into a Poſture of Defence, is thus agreed by both Houſes; nevertheleſſe, this Commiſsion, and all others of like nature, are by their Declaration ſaid to be illegall; And it is thereby denied, That We have, at any time, Power to charge Our Subjects with any manner of Arms (though for the abſolute neceſſary defence of the Kingdom) or that We can command them to be trained or exerciſed, much leſſe to be led out of the County, though an Enemy be ready to enter, or though Rebels be actually up in Arms.

How farre this opinion is conſiſtent with Law, Reaſon, or Regall Power, the ſafety of Our Selves and Our Subjects, (upon all this which We have ſaid) We leave to all Our good people to conſider.

And ſince Our two Houſes (denying Us this Power) without Us, and againſt Our conſent, have made Orders (which they call Ordinances) for compelling Our Subjects to be Armed, Trained, Exerciſed, Muſtered, and conducted, and ſend for Our Subjects as Delinquents, and impriſon them, for refuſing to obey ſuch Orders; It is apparent, That what this Declaration ſaith againſt Our Commiſsion, without juſt ground, is true indeed of thoſe Orders, that is, That they are contrary to the Law and Cuſtoms of the Realm, deſtructive to the Liberty, and Property of the Subjects, and contrary to the Petition of Right (as it is expounded in this Declaration,) as alſo againſt other Statutes.