I Am injoyned out of my duty to my Country, and my zeale to the Publike good, to compile this lit­tle Treatise; little in re­gard of the Author, great in regard of the Subject matter, wherein I protest before the Supreme Judge of Heaven and Earth to deliver the truth, and nothing but the truth, according to the Lawes of this Realme established, whose unparalleld distractions both in Church and Common­wealth I cannot but with great griefe consider: Quis talia fando temperet a La­chrymis.

The Mother and Nurse unto us all this formerly most happy and blessed Nation, now personated in the sable habit of a most mournefull widow: Quae corrupit ecusos fletu, [Page 2] which hath lost her glorious Lampes, even her eyes with weeping. Sparso quoque in­fanebrem modum crine terribilis. Terrible to beholders with disheveled haire, making moane for her irreparable losses, attending the funeral Obsequies of her deare Chil­dren, requesteth, nay requireth us all to bewaile her miseries, and to redresse her disperate calamities.

But to leave off preambles as tedious, and to come to the Discourse intended, I doe with sincerity of heart, detesting the Doctrine and Practises of Brownists, Ana­baptists, Sectarists, and as one that truely honoureth the true reformed Protestant Religion, lament and much deplore the sorrowfull condition of this Kingdome, the amiable Lawes and Goverment being now become despicable, through the violation or neglect at least of the fundamentals, I meane the just and due Rights and Privi­ledges of that High and Supreame Court of Parliament, in whose safety and flou­rishing estate consisteth the happinesse of this Common-wealth, and in the contempt of that illustrious Assembly, this renowned Nation will of free-borne Subjects become slaves, and degenerate from those noble resolutions which their Ancestors did in­herite.

For to let passe the disturbances in this Church of England, and the Government thereof, and the meanes to redresse the same, being not properly within my cognisance or knowledge, and peradventure permitted [Page 3] by Divine Providence to evidence to the world the errours and folly even of his owne Ministers, and the unsearchable Wisedome of God, even past mans finding our. My purpose is onely at this time to treat of the High Court of Parliament, and the Lawes and Liberties of the Subject in them represented, whose infallibility I shall nor labour to maintaine, as being men of the like passions that we are; but the Ve­nerable estimation which the wisedome of the Law hath evermore attributed unto them, not in respect of their Persons, but of the Government and Justice which in them primitively resides, whose gravity, prudence, and integrity hath been in all Ages much admired, and their judgements and resolutions (till these unhappy tim [...]s) held indisputable; for, inquire of your Ancestors, if the gray-headed Common Law (whose funeralls are now in the judgement of man approaching through the popular dis-estimation of this High Court) did not here receive if not its first subsistence, yet its power and glorious estate even to these times? The Kings just and due Prerogatives, if not here first fra­med, yet from time to time here strengthe­ned and corroborated, witnesse that anci­ent Statute called Prerogativa Regis made Anno 17. E. 2. This Station is declaratory of the Prerogative, not Introdu­ctive. wherein certaine of the most weighty and great Prerogatives per­taining to the Crowne are contained and declared, as saith that learned Judge Stam­ford. The rich Gemmes and inestimable [Page 4] treasure both in Church and State from this Fountaine derivatively issuing and proceeding, and shall now the honour of this Court so ancient be deserted? And shall it not with the lives and estates of all noble minded English-men be maintained as sacred, and as just and lawfull defended? For to come to particulars, wherein I will observe this order and method. The method of this Discourse. First, I will present you with the Lawes and Privi­ledges of Parliament apart by themselves, and such of them onely as are unanimously acknowledged for undoubted Rights and Priviledges of that high Court. In the next place I will deliver unto you the Exposition of the said Priviledges by the positive or knowne Lawes, or parallel them with the rights and priviledges of inferiour Courts of Justice, as also shew the violation of them briefly. And lastly, I will observe some particulars worthy the consideration both in Government and State, arising evidently from the premisses, or not im­pertinently depending thereupon; where you shall likewise finde some Lawes and Statutes of this Realme remarkable for use incidently debated.

Priviledge of Parliament the law of Parlia­ment.But in the first place before the hard­ling of these, I would desire you to take notice that the Priviledge of Parliament, and the Law of Parliament is of one sence in Law, Privilege quasi privata lex. Amongst the severall Lawes of this Kingdome, by Sir Edward Coo [...]e mentioned in his Jnsti­tutes, the Law of Parliament is one mea­ning, [Page 5] principally the priviledges and pro­ceedings of that Court, mentioned in the Rolls and judiciall Records thereof. For the Lawes there enacted having no speciall relation to that Court, are not intended in this sence, the Law of Parliament; of which Law it is said, Ista l [...]x, Lex Parliamente What it is. & consuetudo Par­liamenti est ab omn [...]bus quaerenda, a multis igno­rata, a paucis cognita.

This premised, the first Priviledge of Parliament that I shall offer unto you is this, That if any of either Houses shall offend or commit any Crime, that they themselves shall have the censure and pu­nishment thereof; yea, the ancient Custom of the House of Commons is, That if any shall chance of that House to offend, or not to doe or say as becommeth him, or if any shall offend them being called to that His Highnesse Court, that they themselves (ac­cording to their ancient Custome) have the punishment of them; which last priviledge of the House of Commons is very large, point­ing out unto us, That this House of it selfe is a high Court of Justice, and extendeth as well to Strangers as Members of the same in their power of Judicature. And it appeareth that matters of Parliament are not to be ruled by the Common Law; as also that if they might have been else, where punished, it shall be intended that sometimes it would have been put in ure, and the Presidents that have been against the Law in this point, have been in all ages condemned as illegall. And for [Page 6] proofe of these afore recited particulars, you may peruse that much to be honoured Lawyer Sir Edward Cooke, in his Booke called The Jurisdiction of Courts, tit. Par­liament, as also Sir Thomas Smith in his Common-wealth of England, Fol. 18. a learned Gentleman in both Civill and Common Law, so that you see here a positive priviledge belonging to the High Court of Parliament in Criminall matters, which no inferiour Court of Justice can claime, which I shall likewise prove unto you a positive priviledge without qualifi­cation, notwithstanding the ensuing Ob­jection.

Object. That to Cases of Treason, Felony, and the Peace, priviledge of Parliament shall not extend, for the priviledge of Parlia­ment here intended is the priviledge of that high Court in Civill Actions, which is an utter cessation of all proceedings during Parliament, either in that Court or else­where in an ordinary course of Justice, and upon these words priviledge of Parlia­ment is a legall acception, Priviledge of Parliament a legall acception. having onely relation to that high Court of it selfe, and to the proceedings thereof, and to no other Court of Justice, and in this sence it is on­ly taken by the words of this Law.

Priviledge of Parliament a le­gall exception.Priviledge of Parliament is likewise a legall exception, and so it hath a relation to other Courts of Justice, which exception any Member of Parliament may make use of, to quash all proceedings against him in inferiour Courts in Criminall matters; [Page 7] and as to that part of this priviledge no­thing is intended by this Law, for the Members of Parliament offending crimi­na [...]ly shall be subject to the Censure of that Court, and not elsewhere without their leave, therefore the priviledge before mentioned of this high Court in Criminall matters remaineth firme, and no waies nullified by the words of this Law. His Majesty in one of His Declarations labou­reth much to disprove the sence and mea­ning of this Law to be thus taken.

For then saith the penner thereof, Object. Where is the restriction of this Law, that to Treason, Felony, and the Peace, privi­ledge of Parliament shall not extend. This priviledge remaineth as large as any other priviledge of Parliament notwithstanding this Law, if this be the exposition; for no priviledge can intend a totall Cesser of Justice.

I answer: Sol. These words are opperative of this Law, and yet they are mistaken in their explication of them, In Criminall matters ordinary and positive pro­ceedings in Par­liament, in Civil not so. for the privi­ledge is not so large in Criminall matters as it is in Civill, and that by reason of these words restrictive, for in Criminall matters they shall be subject to Cen [...]ure in an ordi­nary course of proceedings in that Court by Endictment, Bill, or otherwise by the mea­ning of this Law, whereas in Civill Actions it is not so, there is no positive course of proceeding against any Members of Parlia­ment, they are onely left to an extraordi­nary course of Justice. Petition, or other­wise [Page 8] as the pleasure of that great Court will permit. So you see this Law or priviledge justified no [...]withstanding any Objection, and no Cesser of Justice.

Object. It is further objected, that if this shall be the meaning and exposition of this privi­ledge, then this mischiefe will follow, That if a Member of Parliament shall commit a Murder or Robbery at Yorke, the Parlia­ment sitting at London, then it he may not be questioned untill the pleasure of Parlia­ment be knowne he may escape; and so a heynous crime protected or permitted with impunity by this priviledge.

Sol. I answer; The Law is plaine, and the priviledge of Parliament just; this opposi­tion notwithstanding; No Member may be Arrested by any, but as minister to that Court. for he may be ar­rested, or his person secured by any Mini­ster of Justice, to be delivered to the Justice of that Court upon notice of their pleasure, and so (I take it) the priviledge of Parlia­ment is no wayes infringed; he cannot be imprisoned, or his person secured by any man as Minister of any inferiour Court, but as Minister in this particular to the Court of Parliament, there to be censured and not elsewhere.

Object. Hence happily it may be gathered, that before this Law restrictive afore specified in criminall matters, there was no procee­dings as in Civill, in Parliament against any Members thereof in an ordinary course of Justice, and therefore this Law was made somewhat to abridge this high priviledge, namely in this, that any Member offending [Page 9] shall be subject to the censure of that great Court, in an ordinary course of Justice, which before he was not, but in an extra­ordinary way, by Petition or the like, in which condition he now stands as to civill actions.

To this I can give no positive answer, but I rather incline to thinke that this Law was rather parcell of the priviledge it selfe, or contemporary with it, and no subsequent Law, and so this collection formerly men­tioned nor materiall. Also I conceive that if this Law before objected shall be found subsequent to the priviledge of Parliament in this particular, which for my part I doe not credit, yet before this Act or Law de­linquent Members thereof were not exempt from Justice but onely in a positive course of proceeding, they were still subject to the censure of that high Court in an arbi­trary way, and so no Cesser or defect of Justice, which were a thing of so honoura­ble a Tribunell not to be imagined.

Thus you see the wisedome of the Law in the framing of these great priviledges in Criminall matters, The Reason and ground of the Priviledge of the Parliament both in Criminall and Civill matters. Nota. because both God and man require, festinum remedium, the of­fences being exorbitant, Justice open and cannot be denyed even in an ordinary Course. Also the House of Parliament being first acquainted therewith, and their leave obtained, Censure may be elsewhere, not otherwise: in civill actions not so, but an ut­ter cessation of necessity of ordinary course of Justice, for if otherwise the Parliament [Page 10] would be filled with private Suits and Acti­ons, and many of them frivolous; the many and weighty affaires of the Kingdome in the meane time neglected. To conclude, the Parliament you see hath that high Pri­viledge in Criminall matters communicated to no other Court of Justice, The Priviledge of Parliament paralleld with the priviledge of inferiour Court; in Civill matters but in Civill Actions there are some foot-steps of this great Priviledge in inferiour Courts; In the Common Pleas a Writ of Priviledge or Su­percedeas, to stay proceedings against any member of that Court; and if the parry hath cause of Action, he ought to Sue in the Common Pleas: parallel this case with the Priviledge of Parliament in Civill Actions, you will finde it almost the same. The Su­persedeas, or Writ of Priviledge removeth not the Cause, no more is the Cause remo­ved by clayming the priviledge of Parlia­ment, but a Cesset processus legis quousq. &c.

If the Party hath cause of Action he must Sue in the Common Pleas, Priviledge of Parliament in Civill Actions greater then of inferiour Courts so may he, I take it in Parliament by Petition, or otherwise as the pleasure of that Court will permit, but not in any course of Justice ordinary, as he may in the Common Pleas: here the priviledge of Parliament exceedeth the pri­viledge of inferiour Courts.

Likewise in Common Pleas priviledge for Strangers, Eundo, redeundo concerning their Suits there, and this extends as well to their persons to free them from Arrest, as to their goods necessary for their Suit and Charges; priviledges of Parliament (I take) the same, I need not use repetition.

Now to hasten to an end of this, the reason why the Law hath given unto this High Court, this and many other privi­ledges is for the publike good, to the end that Parliaments which are to the State Tanquam medicus aegro, like the Phisitian to a sicke person, should not be eluded or frustrated by suggestions of Crimes against any members thereof by the King, or any persons whatsoever, The very being of Parliaments depend upon the priviledge in Cri­minall matters. being taken away from the service of the Houses & tryed elsewhere by inferiour Courts, for so they might take away all, and consequently make a Parlia­ment what they would and when they would; which is a breach of so essentiall a priviledge, that even the very being of Par­liaments dependeth thereupon.

His Majesty in one of his Declarations saith, Object. That the Parliament themselves in the beginning of his Raigne, in a Petition unto him presented by both Houses in the case of the Earle of Arundell, acknowledged their priviledge not to extend to Treason, Felony, and the Peace; the words are, They finde it an undoubted right and con­stant priviledge of Parliament, The priviledge of Parliament in expresse words by themselves presented to the King. that no Member of Parliament (sitting in the Par­liament, or within the usuall times of privi­ledge of Parliament) is to be imprisoned or restrained without Order or Sentence of the House unlesse it be for Treason, Felony, or for refusing to give Sureties for the Peace. I have faithfully and truly opened all matters that make any waies against me, and so I will (God willing) throughout [Page 12] this whole Discourse, let the Reader impar­tially judge.

Sol. Priviledge of the Parliament as large as before notwithstanding the words of this petition.Although these words fore-going of this petition be very large, and seeme much to abridge this privil dge, yet upon true exa­mination they doe not; for the words, That none shall be imprisoned or restrained, &c. plainely relate to civill actions or procee­dings; the words, Unlesse in case of Treason &c imply they shall be subject to impri­sonment or restraint; but note the words, they doe not say of any inferiour Court, but still the priviledge remaineth the same notwithstanding the words of this petition. But here it may be objected, that [...] have left out that which makes most against me, viz. these words, Without order or sen­tence of the Houses, implying cleerly, that in Cases of Criminall the order and Sentence of the House is not requisite, Sentence and Order of the Parliament an extraordinary course of Justice upon the words of this petition. Nota. but they may be proceeded against without leave. But marke the words and then judge, it is plaine by their sence and meaning, that in civill actions they cannot be proceeded against, without sentence and order of Par­liament, no ordinary course of Justice. The order of Parliament upon petition or the like is an extraordinary and Arbitrary course of Justice; but in Criminall matters they may be censured without sentence and order of the House; that is, in an ordinary and positive way of Justice, but this must be in the h [...]gh Court of Parliament it selfe, and not else-where without their leave, and so is the sence of these words to any [Page 13] rationall man well observing. There is no power given to inferiour Courts by these words either expresse or implyed, Nota. but the priviledge continueth the same it was, no­thing diminished by the words of this petition.

Further, The positive law in inferiour Courts and the law of Parlia­ment inconsis­tent and diffe­ring, yet both just in their pro­proper motion. Vide postea. if we should admit the tryall in inferiour Courts this mischiefe would fol­low; that their Judgements might perad­venture be legall yet not just, it being law­full for a man to open his Conscience here; so farre without dread or feare in any mat­ter touching the Common-wealth, or any particular person in a Parliamentary way, which in other Courts would be held a crime, and by the positive Lawes of this Kingdome punishable. This being so, the vio ation of this priviledge rests to be pro­ved, and truly I am sorry to enter into the proofe of it, it reflecting somewhat upon the Kings most excellent Majesty, whose Royall Person I shall ever unfeignedly honour. But surely it is the unhappinesse of Kings to be abused by evill Counsell, and the errour is not to be imputed to the King, but to his Ministers. But since I must speake, it is Soli lucem inferre, to hold a Candle before the Sunne, so evident it is, it needeth no proofe at all, for is not the breach of this priviledge in fresh memory, when the now Members of both Houses should have been taken from them in an unusuall way? I will not say by violence, if they had been there present, to the great feare and astonishment of that present [Page 14] Assembly; but I will say no more as sup­posing this Act unjustifiable, however not yet absolutely disclaimed for ought that I could ever yet see, but his Majesty hath declared in print, that he would proceed against them in an unquestionable way; (Vnquestionable way) by these words, not pro­nounced inno­cent, but rather criminous. A generall De­claration of the proceedings of this Parliament. which words in what sence they may be ta­ken, I doe not for my part certainly know, as being obscure to my understanding, and not to all intents satisfactory; which viola­tion I take it hath been since pursued in his Majesties Declaration of the twelfth of Au­gust, 1642. in offering to prefer an Iudict­ment upon the Statute of 25. E. 3. against divers Members of the House therein na­med, and I take it his meaning is not in Parliament, but of this I will speake no more.

Another right of Parliament is this; That every Member of both Houses shall upon Summons come to the Parliament; unser the paine of Amercement, and other punishment, as of old hath been used to be done, as appeareth by the Statute of 5. R. 2. cap. 4. and also by the Statute made 6 H. 8. cap. 16. It is enacted, that no Member of the House of Commons shall depart from the Service of the House with­out leave of the Speaker of the House of Commons, and the Commons in Parliament Assembled; which license shall be entred in the Booke of the Clarke of the Parlia­ment upon Record, under paine of losing those summes of Money which they should have had for their Wages; by both which [Page 15] Statutes it doth appeare, that departure from the House of Parliament without leave is a Crime, and punishable of ancient times; 5 R. 2. Of the Common Law declaratory. for so it appeareeh by the first of these Sta­tutes, which was but declaratory of the Law formerly used, and that the punish­ment was Fine and Imprisonment, and sometimes Arbitrary, appeareth by anci­ent Authority of Law. But it may be ob­jected, Object. that by a clause in the Statute of 5 R. 2. before named, it is no Crime if the Member of Parliament so absenting him­selfe, can reasonably and honestly excuse himselfe to our Lord the King: so that the King by this Statute is made the sole Judge of the offence, and if the King License or Command the absence of any Member of either Houses it is sufficient.

To which I answer, Sol. That the Statute is not to be intended in that sence, that all Parliaments may be made frustrate and void at the will and pleasure of the King, by his License, or Command of the absence of any Member of Parliament, without great cause for the same, for that were not reaso­nable and honest, as the words are, Et ve [...]ba accipienda cum effectu as the Law saith, and otherwise the very essence of Parlia­ments would be shaken by such expo­sition.

But to make a full Answer to these words: Our Lord the King before mentioned in the Statute, are in Law taken for the King in his Politick Capacity, not in his Perso­nall, and so it is no more then if the words [Page 16] had been to our Lord the King in his Court of Justice in his high Court of Parlia­ment, and so the Court of Justice is the Judge, and not the King personally, and so is the Law frequently takan; for to give you an instance or two, and that in a Statute Law as this is, Merton, cap. 3. Dominum Regem the Kings Court of Justice. in the Statute of Merton, cap. 3, are these words: Statim capiantur & in prisona Domini Regis detinean­ter quousque per Dominum regem, vel alio modo deliberentur. Here the words Dominum Regem, our Lord the King are intended the Court of Justice of our Lord the King, and not the Kings Person; and so in the Sta­tute of Marle-bridge, Marl. cap. 8. Cum Domino [...]ege. the Kings Court of Justice. Perceptum Do­mini regis per­ceptum curi [...]. cap. 8. the words there are, Et hoc per finem own Domino Rege faci­end. per transgressione, &c. Here cum Do­mino Rege is intended the Court of Chance­ry or Kings Bench, and so is perceptum Do­mini Regis, in that Statute taken for the command of the Kings Court of Justice, and not for any other command of the King whatsoever.

In miserecordia Domini Res. 1. curio Domini regis. Statute enacts that Fine and ransome shall be made at the Kings pleasure intends the plea­sure of his Court of Justice, not his persons pleasure.The Law is cleare in these Cases, which are the very same in these words, with the Statute 5 R. 2. before named. Further, (because this objection seemeth great) I will give you one instance more, in a Sta­tute latter then any of these, the Statute of 25 E. 3. an Act so highly and worthily prised, and much made use of at this time by the Kings Majesty, the words are these: Ou si home levira guerre counter nostre Seigni­or Le Roy en son, Realme, &c.

Here the words (Nostre Siegnior Le Roy) [Page 17] are taken for the Lawes of our Lord our King, and by good judgement likewise as to me it seemeth, not for any leavying War against his Person, for that is included in the first branch of this Act; Si home com­passa ou imagine, &c. The Lawes, and the Courts of Law or Justice intend the same thing, therefore I conclude the words; Our Lord the King must necessarily be meant in this Statute of 5. R. 2. the Kings Court of Justice, or the Lawes of his Court of Justice, to wit, His high Court of Par­liament, who onely are the Judges of any crime committed in that Court, and no other inferiour Court, as hath been proved at large. Also this latter Statute of 6 H. 8. 6 Hen. 8. ca. 16. A stricter law then 5. R. 2. seemeth to conclude all Delinquents that have not Licence, as is before mentioned, although the occasion of their absence be great, and urgent affaires even in Law and conscience satisfactory.

Now to deny unto the Parliament the dispensation of Justice against Offenders in this kinde (as it is too apparent) and with­all to protect them from the censure of that high and great Court, surely (I say no more) it is a violation of their Lawes and Rights unto them anciently belonging.

But that I may answer all Objections, Object. it is urged by the adverse party, that their departure from the service of the Parlia­ment was forced by tumults and disorders of people, not without just feare and perill of their lives, and therefore their absence not within either of the Statures before [Page 18] named, but justifiable by the rules of all Law and Conscience.

Sol. To which I answer (because it seemeth materiall) that first it must be granted, that those Members so departing were Summoned to returne to the Service of the Houses, and their Answers (especially of divers of the House of Peeres) were to this purpose; That by their duty of Allegiance they were bound to attend the Kings Per­son, or that they were commanded to at­tend his Person, and therefore they held themselves excusable, which was in effect a plaine deniall; divers of which Answers I have seene in print. Now it must needs be inferred from hence, and it plainely ap­peares to any man not devoid of reason, That if there had been really any such dan­ger or cause as is objected, Nota. they would have inserted the same in their Answers, and so reasonable and certaine an Argument of their innocency would not have been omitted; as on the contrary, so high and contumacious a defence would not have been returned, such an affront and con­tempt of Justice that even a Court of Pye-powders would not have suffered. Also see their Answers what they are, their Allegiance is the ground of them, as if their attendance on the Kings Person warranted them to doe injustice, to violate the Lawes of these Statutes before named; Is this their Allegiance to the King? Is not the Subjects Allegiance confired to the Lawes? Is not the very Etimology of the [Page 19] word derived from thence? Legiantia, Allegiance the Etymology. quasi legis essentia, therefore their answers not legall, Their answer no [...] legall, because they infringe the law, viz. 5. R. 2 & 6. H. 8. Tumult what it is. as also the Objection of being driven from the Parliament frivolous, for then they would have made use of it in their answers. Further to question the word (Tumult) afore mentioned, doe numbers of people with Petitions, no way disturbing the Peace make in Law a Tu­mult? Certainely no; likewise it appeares by undeniable proofe, that some of them were sollicited away from Parliament by Letters, therefore the former allegation is idle.

For the Kings absence from the Parlia­ment, in what condition it stands, The Kings ab­sence from the Parliament by the ancient law how farre justi­fiable. I will offer you one of the ancient Lawes of that pious Prince Edward, Sir named the Con­fessor, whose Lawes the Kings of this Na­tion at their Coronation sweate to observe and keep: the words are these rendred in English; The King ought to be present at his Parliament, unlesse he be hindred by sicknesse, and then he ought to be in the same Towne where the Parliament is held, and his sicknesse ought to be certified by twelve Members of the Parliament, a Committee for that purpose of the Lords and Commons. Here appeares no cause of his absence but sicknesse justifiable, and of this he himselfe is not the Judge, it must be certified as you have heard. What, not perill of his life may some say? Is that no just cause of His absence? You heare the Law, I have nothing to say to questions. [Page 18] [...] [Page 19] [...] [Page 20] It seemes in those dayes there were no such unworthy and dishonourable thoughts in the mindes of men, as to doubt the security of Parliaments unto the Regall Person, since in judgement of Law, if Tumults or Disorders shall happen in the Common­wealth, Parliaments are best able to sup­p [...]se them, and to protect both King and p [...]ople from injury and wrong. Now Par­liaments are the bane of Princes, as they are now to [...]ed, they are now Corasives, when as you see formerly they were the onely curers of all Diseases in the Body Politique. The King formerly not any where safe but here, now the King in His owne judgement safe any where but here, flying from them as from His enemy; when as it is not possible he should finde any where, that which he desireth but under God even with them (peace and security.)

Be not deceived, Great Prince, neither fly them that pursue you, not in any Ho­stile manner: The Parliament follow you with humble Declarations and Petitions for Peace, you mistake their sweet Compella­tions; put up your Sword into the Sheath, and let Peace be in our dwellings and amongst us.

I have a little deviated, I will returne unto my selfe, and I finde the King still absent, notwithstanding all that hath been spoken, and justifying the same. Indeed there is a Statute in the time of King Henry the 8 via. 33. H. 8. cap. 21. 33. H. 8. ca. 21. by which in the Kings absence from Parliament, His [Page 21] Assent by his Letters Patents under the Great Seale, shall be sufficient.

Here it may be alledged, Object. that the Kings absence from Parliament is warranted by this Statute.

I answer; Sol. This is nothing to make the ancient Law afore recited ineffectuall, for his absence here upon this Law standeth as it did before this Act, not touched or medled with by this Act, and therefore sick­nesse continues still a cause of absence of the Kings Person from his Parliament, and no other; and where he might legally justi­fie his absence before this Statute he may still doe the same, and no otherwaies. And although that the use now of late times hath been, Vse of no force against a law. Vi. infra. that the first and last day of Parlia­ment is sufficient, yet that is but use which is of no force against a Law in being, as I conceive. Further, His Assent by this Act is limited, it is onely to Acts of Parliament, and no other assent is warranted. Note also, that to dis-assent to any matter trans-acted in Parliament, it giveth him no power at all Thus you see, Ex libro de ordine Parlia. Editi, temp [...]re Edvardi filij Regis Ethel [...] redi. the Kings absence from his Parliament how it stands by the ancient Law, of which I have an extract; as also by latter Law you have heard likewise, the absence of the Members of the Houses debated.

But we will (Argumenti gracia) admit their Allegation true, that they were driven from the Service of the Parliament by Tu­mults and disorders, which no man will (the premisses considered) suppose, yet [Page 22] the objection is still frivolous, who shall judge them innocent or transgressors of the Law, shall not the Parliament? yes verily, as it is manifestly proved by the former discourse, so that in the confutation of this, we doe but like Sysiphi sax [...]m voluere, labour in vaine with multiplicity of words to answer a meere false and nugatory sug­gestion.

Object. There is yet further opposition, and that is upon the Statute 6 H. 8. before named, That the penalty of that Law is but lo [...]se of their wages in case any of the Members of the said House of Commons shall depart from the Service of the House without leave of the House accordingly as that Act hath appointed, and so with losse of their wages upon the point that Statute is sa­tisfied.

Sol. 6 H. 8. More penall abroga­teth no former Law.To which I answer; First, that Statute extendeth not to the House of Peeres, nei­ther doth it take away the mulct or penalty of any former Law or Statute made in that behalfe, but addeth a further punishment to the crime, abrogateth no former Law; so that Fine, Imprisonment, and Arbitrary Censure continue still in their force: and to conclude this point, they are by one Sta­tute or the other, or by both transgressors of the Law, and liable to the judgement of that supreme Judicatory.

The proceedings of the Pa [...]lia­ment not subject to any debate extrajudiciall, nor to any deba [...]e judiciall, but of it selfe.Another right of Parliament is the sole trans-action of all matters even unto Judge­ment, [Page 23] or the Royall Assent; the procee­dings of this High Court being not subject to any extrajudiciall debate of censure of any other Court or Authority whatsoever, but onely of it selfe, and within it selfe ha­ving supreme Authority and Jurisdiction; and whereas I spake before of their power of preparing and trans-acting all matters unto the Royall Assent; The transacting matters unto the Royall Assent doth not intend the royall assent Arbitrary. I doe not intend the royall assent Arbitrary, for the royall assent cannot in Justice be denyed to any Bills preferred by the wisedome of Parlia­ment for the publike good; neither can any absolute, Negative voice no Prerogative. negative voyce of the King in this nature be any prerogative to him justly per­taining, although by a Proclamation, bea­ring date at Oxford, printed not long since, his Majesty claimeth an absolute negative voyce in Parliament as his undoubted right.

And likewise in one of his Declarations he justifieth it as his right for this reason, Object. That if he should onely have a negative voyce in Parliament, in matters of Grace and Favour, and not in matters of right and Justice, then matters of grace and savour would soone be brought within the com­passe of right and justice, if the Parliament sh [...]ll so declare them, they would soone in­terest the Republike in them also, and so exclude him from any negative voyce at all.

To answer this I need say no more but this, Sol. Matters of right and Justi [...]e, and of gra [...]e and fa­vour legally differen [...]ed. That these are thoughts dishonoura­ble of a Parliament, to make the head and fountaine of Justice a receptory of such impure streames as these (injury and in­justice) [Page 24] besides these matters are in Law plainely and perspicuously differenced in the one, viz. matters of Right and Justice, the whole Kingdome is concerned, not so in the other as being private on particular in their nature, as Bills of Naturalization, Indenization, Generall pardon how speciall. grant of Franchises, on privi­ledges to Corporations or private persons, generall pardons or particular, for though the word generall be here used, yet it ope­rates, but especially it extends onely to particular persons without you will make all the Kingdome delinquents unto Justice; it includes genera singulorum at the most, Generall statutes not nationall or publike. not singula generum. And so in Law divers Sta­tutes are called generall Statutes, of which the Judges are bound by Law to take notice of without speciall pleading, and yet the Publique or the whole Kingdome are not concerned in them. For my part I shall need to say little herein, because it hath been formerly handled by others; Arbitrary Go­verment groun­ded upon the negative voice. also I take it to be a truth as cleare as the noone day, that upon this Structure all Arbitrary Go­vernment is founded and maintained, which position standeth not with a mixt and Po­litique Government, as this of our Nation is, but with a Monarchicall, where the will and pleasure of the Prince is a Law, as is known sufficiently to the learned.

In inferiour Courts no nega­tive voi [...]e, no voice at all.But a little to examine this particular, and let us looke into the proceedings of in­feriour Courts; Hath he there any negative voyce? It appeareth he is so farre from having any negative voyce, that he hath [Page 25] no Vote at all, but the voyce of the Law pronounced by the mouthes of the dispen­sers thereof, the reverend Judges is that which obligeth both King and peop [...]e, nei­ther can it be disanulled by any verball Command of the King, or any other extra­judiciall way, although under [...]he Great Seale of England, although the Judgement be against the King himselfe. Nay further, I conceive the Law exerciseth a coersive power over all persons without exception, the King as well as the people, surely then the King hath no voyce negative, yea, the compulsary proceedings were the same anciently, though now dis-used; that is to say, Writs issued forth against the King as against the Subject: I have seene good Au­thority in print, that the forme of the Writ in the times of Henry the 1. or thereabouts as I remember was thus: Precipe [...]enrico Regi, &c. the power of the Law was here supreme but of late times, it is now by way of Petition if the Suit be against the Kings Servants or incumbent, as in a Quare impe­dit, or the like, if judgement be once gi­ven (as it is usuall) the Kings right is bound, and you see withall it is by Writ in that Case; now if Judgement be given, Judgement against the King by the posi [...]ive lawes, and with all compulsary. surely even at this day the Judgement is not illusory, for every Judgement in its nature is an Act compulsary, Et judicium redili [...]us in invitum, as the Lawyers say; for execution may be demanded upon this Judgement, and cannot in Justice be denyed; though against the King. These things thus pre­mised [Page 26] I doe reiterate my former question, where is now the Kings negative voyce; surely in inferiour Courts he hath no voyce at all; come we then to the right Court of Parliament, Hath he it there? without doubt he hath it not. It is an Opinion ex­ployded by all good me [...], unsound and rotten at the root if we but open it; The reason why the negative voice is not con­sistent with this goverment. for if he hath a negative voyce the Government is meerely Arbytrary; inferiour Courts may a while be refreshed herewith, but the fountaine will soone dry up, and what then will become of the rivilets? If this may be defended De Jure to be done, that the King may deny his Assent to twenty Bills preferred unto him by the wisedome of his Parliament for the Publike good, there will fall o [...] a totall defect of Justice in a short time, without God incline the hearts of Princes miraculously. And this admitted, how would it let loose the reines of Government? for if there were no sup­plement of new Lawes, the old Lawes would soone expire, diseases breeding in the Body Politique, even as in the naturall, requiring new Lawes, the ministration of new devised remedies to suppresse the mischiefe, the which the Art of man can­not cure or prevent by provision of old Lawes; therefore for this very reason the Kings negative voyce is inconsistent with Government. Further, to what end is the Oath so solemnly tendred and taken by the Kings of this N [...]tion at their Coronations? Is it meerely superfluous, or is he bound [Page 27] now, and is he presently loosed in his pra­ctise and goverment? The Kings Oath at his I [...]augura­tion against the negative voice. How doth his ne­gative voyce in Parliament and this Oath stand together, in which Oath he sweares to confirme, those Lawes, Quas vulgus ele­gerit, which his people shall chuse, Some materiall words in this Oath explained. the true sence and meaning of the words extending onely to future Lawes, to be chosen by the people, as I take it cleare without all que­stion, for to lawes already established precedent branches of this Oath doe re­late, else there must be a Tantology, which in an Oath penned with such wisedome and deliberation we must not conceive.

The word (Consuetudines) joyned with the words of this [...]ranch of the Oath, Object. ob­jected by his Majesty in ore of his Decla­rations, plainely to intend this branch of precedent Lawes onely, for Customes can­not commence at this day; is a word of large fence in Law, Sol. (Merchandises) vid. M [...]cae. ca. 30 Note that this word (Consue­tudines) is also taken for Statute law, as Centra consuetudinem communi concili [...] Regni edit. C [...]. M. C. f. 5. 6. for Rents and Services due to the Lord are called Customes; be [...] sides, this wo [...]d (Consuetudi [...]es) in this very Oath plainely pointeth out Lawes and Statutes, Franchises and Liberties: for, have the Kings of this Realme granted Cu­stomes in this sence to their people? as are the words of one branch of this Oath, they cannot be Customes, and yet have such denomination even at their very com­mencement as these words report, but of this enough.

Now the people here intended in this Oath are the High Court of Parliament, for where can the people make election of [Page 28] wholsome Lawes for themselves but here, The Commons are there repre­sentative, the Lords not so; but personally; that is the reason a Peere may make a Proxy, not the other. where they are representatively assembled? for no legall Assembly or Convention totius populi can any History record, or antiquity of this Nation ever mention, but this con­vention of Parliament. I will say no more, in a truth so cleere, to every capacity plaine and obvious; but people dis-affected cla­mour much, and say, How can this be, since the Kings dignity is above all Law, his pre­sence suspends the Law, and surely if he may suspend the Law by his presence, and that a Law already made, and in being, then surely he may deny efficacy or force to any Law not in being by an explicite Act or deniall of Assent; for the former case is but implicite, and for proofe of this they may object that ancient Case of Law, Object. That a Villaine, in whom his Lord hath both in person and estate, the inheritance, the absolute and free disposition of him by Law, so he doth not maihem him, if in the presence of the King he is a free man, he cannot be seised by his Lord, but it is for the time an Enfranchisement.

Sol.To which I answer, that this Case is ancient, and the Law in this particular is antiquated, not abrogated; howsoever it is pertinent to out present purpose: I say this Case stands upon its particular reason, for the Kings presence is a sufficient Prote­ction in favour of liberty against the Lord, who doth not agere civiliter against his Villaine, that is to say, claime him in a course of Justice, for then if the proceed [Page 29] in a judiciall way, The Kings pre­sence no Prote­ction against the power and execu­tion of the law. where the power and authority of the Law appeares, as he may, then I conceive the Kings presence is no protection, but it is like the case of a man upon an Execution awarded against him, who flyeth into the Kings presence upon a Capias ad satisfaciendum directed to the She­riffe; for in that Case I take it, the Law is plaine, the Sheriffe must with the power of the County (if needfull) apprehend him, and if he returne the especiall matter unto the Court without executing the Writ, the returne of the Writ in this case is not good, and if the party escape, the Sheriffe is subject to an Action at the Suit of the party, who is damnified thereby.

Thus I have done with this particular, I meane the negative voice, and if there be no coersive power to rectifie the abuse of Authority Regall, as some would have it, yet it remaines still a transgression from the rule of Truth and Justice, and that is all that I desire at this time to prove. If there be no limits for the impetuous waves of the proud Ocean, God hath appointed the Sands to stand up, and choake them. Loe here God and Nature against exorbitant power, but of this sufficient. There yet re­maineth the last part of this Priviledge afore mentioned a little to be spoken of, The proceedings of Parliaments paralleld with the proceedings of inferiour Courts. viz. That the proceedings of this High Court are not subject to any extrajudiciall censure or debate, wherein I will briefly-parallel this with the proceedings in inferi­our Courts, where you shall finde, that [Page 30] they are not so much as to be retarded or delayed by any verball command of the King, their judgements binding all, untill by legall course reversed; no man, no not the King himselfe authorized to question, much lesse nullifie their Acts in any extra­judiciall way, so much ought the judge­ment of the Law to be had in reverence. The King cannot warrant the absence of any man in his service, The King cannot retard Justice but in a legall way. either by any ver­ball, or Certificate by Letter to the Court of Justice, but it must be done legally by Writ under Scale, or otherwise it will turne to a default, he cannot retard Justice but in a legall way. And what is extra­judiciall debate or censure, but a retarding of Justice. If Judgement be given against the King, he cannot examine this iudge­ment in an extrajudiciall way before him­selfe, but it must he subject to censure or debate in a legall way, by Writ of Errour or the like; An offence com­mitted in the presence of a Court of Justice, great and more capitall then in the presence of the King. I need say no more for the proofe of this. I will present you with the great Majesty that doth attend the admini­stration of Justice, and that is this; An Offence committed in the presence of a Court of Justice, is a greater Crime and more Capitall then in the presence of the King; killing the Chancellor or Judge of either Bench doing his office is High Trea­son; by the expresse words of 25. E. 3. not so, if from the Bench, though in presence of the King, striking any man in Westminster Hall in presence of the Courts of Justice, is the losse of a mans right hand, and his [Page 31] goods and chattels, not so in the Pallace or presence of the King, unlesse blood shed ensue upon it, and that is specially by Sta­tute, not by common Law; but because al [...] have touched upon this before, I will re­turne to the discourse intended.

It is manifest, that the Law is the square and rule by which both King and people are directed, and regulated in inferiour Courts; What shall we then say to the high Court of Parliament, in comparison of which, all other Courts are but Tanquam viburna cupresso, like shrubs to the lofty Cypresse or Cedar, from whose fulnesse and abundance all other Courts receive even their power and authority.

There is an enemy at hand, Object. a strong ob­jection, and that is, that this is no Parlia­ment, they have no plenitude of power without the King, and the rest of the Lords and Commons now absent, and by this they thinke to invalide all that hath been for­merly spoken.

To which I answer, Sol. That first the Parlia­ment must he admitted to be a Court of Justice, without the Kings Personall pre­sence, his legall presence being inseparable from this Court, like as from all other his Courts of Justice; and the contrary I sup­pose no man that is rationall will affirme. Further, I conceive in inferiour Courts his personall presence is against Law in point of Judgement in any matter between the King and his people, for then the King should be Judge in his owne Cause, con­trary [Page 32] to the rule of Law, Ministeriall or judiciall Acts not incident to the Regall dignity. which saith, That the Kings cannot doe any Act mini­steriall to himselfe, a [...] to take a Recogni­ [...]nce pro securitate pa [...]is, or the like, much lord doe any Act judiciall betwixt himselfe and his people; yea not onely so, but he might fit in one Court, and reverse a Judge­ment given against himselfe in another Court, which how injurious this same would be unto the subject, how dishonou­nourable and scandalous to the Court of Justice, I suppose the weakest capacity doth apprehend. Therefore the wisedomes of the [...] hath appointed the sage and lear­ned men, being sworne to administer Ju­stice indifferently betwixt the King and his people. Court of B. Le R. B. C. Courts of Justice time out of minde, and Magna Cart. ca. to did not [...]re­ate and constitute the Court of C. B it did only settle it in Loc [...] c [...]t [...]. No Courts of Justice at the first in the subject [...]s now, but all dis­pensation of Ju­stice in the Crown, viz. by the Kings mini­stery. And the Opinion of Fineaux chiefe Justice in the time of King Henry the 7▪ That all administration of Justice into at first in the Crowne, is to be under­st [...]d with this distinction, it was not in that Regall period a [...] to the dispensation of it, but it was in the regall Ministers or the Judges, and so might be said to be in the Crowne, according to the rule of Law; Qui [...]er alium facit per seipsant fadere vide­ni [...]. If so in inferiour Courts, the same law [...]ed sway in that high Court of Par­liament also, the practice and course of that Court sheweth plainely, that they are a C [...]rt of Justice, without the personall [...]re [...]e [...]ce of the King Witnesse their rever­ [...] erro [...]ious judgements given in inferiour [...]rt, [...]a [...]ing illegall Parents, Mono­polies granted by the King, and many other: [Page 33] might here be remembred. I have heard it formerly objected, that the House of Com­mons could not take a Recognizance Pro securitate pacis of themselves, but it was al­waies transmitted to the Lords, therefore this House was no Court of Justice, for this is incident to every Court of Justice that is, of Record; yea a Commissioner of Oier and Terminer, may take a Recognizans as it seemeth, and for proofe, the Case in the 1 H. the 7.19, 20. is urged, for there it is ex­presly said, That the transcript of a Writ of Error upon an erronious Judgement in the Kings Bench shall be brought into the House of Peeres, Et per Dominos tantum, & non per communitatem assignabitur seneschallus qui cum Dominis spiritualibus & temporali­bus per concilium Justiciar procedet ad erro­rem corrigendum. Hence it seemeth that the House of Commons of it selfe cannot exa­mine any Judgement in inferiour Courts, and therefore should seeme to be no di­stinct Court of Justice of it selfe. As also that the House of Commons considered in relation to that joynt power of Judicature, that it hath with the House of Lords, can­not take a Recognizans as is before obje­cted, for so it may seeme to be implyed by this Case.

I answer, Sol. because the weight of this objection seemeth great, that this Case may be admitted for Law, and yet the power of that High Court of the House of Commons no whit diminished; for this Case must be intended of their joynt and [Page 34] entire power of Judicature, Co [...]rts of Justice have no imme­diate cognizance of each others pro [...]eedings, but they must be cer­tified hereof and that in a legall way. Certificate im­plies no imme­diate cognizans. for otherwise the House of Lords could take no imme­diate cognizance or knowledge of the pro­ceedings of the House of Commons, nor è converso the House of Commons of the proceedings of the House of Peeres, but their proceedings ought to be legally cer­tified, and by the words in this Record you may see it was done, in relation to that joynt power, for the words are, Per Domi­nos tantum & non per communitatem, &c. Here the Commonalty must plainely be intended as member or part of that High Court, or otherwise the words were meerely nugato­ry; for what need this restriction if the House of Commons were not conjoyned with the Lords in entercourse of Justice, but were a distinct Court and severall from the House of Peeres; it were as much as if the Kings Beanch should be restrained from having any immediate Jurisdiction or Cognizans in matters pertaining to the Common Pleas, a thing ridiculous and superfluous, seeing by Law they are meere estranged from any knowledge in this na­ture of any proceedings of each other in­terlocutory, untill judgement given, and then it must legally be brought before them; Jurisdiction of Courts. so that this Case is clearely meant of their joynt power, wherein by custome (as saith Sir Edward Cooke) the Lords only proceed to reverse or affirme any Judge­ment upon errour, no whit diminishing the Power and Authority of the House of Commons by this, for divers matters may [Page 35] by custome be severally trans-acted by Persons having the same power and autho­rity, Transaction by one done, by all representative. and yet they are in Law trans-acted by all the Members or Judges of that Court representative. How the opinion of Sir E. Cooke formerly is to be understood, viz. according to their joynt power of Judicatu [...]e. But I doubt not but the transcript of any Judgement in the Kings Bench may be commanded, and that legally too into the House of Commons, and that they may proceed thereupon either to affirme or reverse the Judgement, and that by the power of that high Court, as a seve­rall and distinct Court of Justice from the House of Peeres, & this Case before remem­bred to be good Law notwithstanding, but this I leave to the learned. The House of Commons may take a Recogni­zance at a distinct court of Justice.

Now concerning the Recognizance be­fore touched, there is nothing expressed or implyed in this Case, but that the House of Commons, as a severall and distinct Court of Justice of it selfe may take a Recogni­zance, there is no question of that, for every Court of Record have that power unquestionably, yea, derivative Authority from Courts of Justice, as Commissioners of Oier and Terminer are invested with this Authority. Further, The House of Commons may take a Recogni­zance according to their joynt power. the House of Commons considered in relation to their joynt power▪ may take a Recognizance, for so saith good authority, that reverend Judge Brooke, in abridging the said Case of 1 H. 7. before cited, Videtur quod tout un are his very words; besides, if there hath no such pra­ctise been or used in the House of Commons, that is no proofe, it is no argument from a non esse to a non posse; an hundred presidents [Page 36] Sub silentio make not a Law, it was never yet upon contestation so determined, but of this sufficient. Thus I hope I have cleared this false aspersion, it plainely appearing that they are a High and Supreme Court of Ju­stice, joyntly and severally without the Kings personall presence.

The Assembly at Oxford no Par­liament.There hath of late been an Anti-parlia­ment (for so I may terme it) erected at Oxford, whereby they had thought to have weakened the power of this Parliament, by Voting their proceedings as traiterous and illegall; but alas these are poore shifts and evasions, seeing there is an Act, unto which they themselves this very Session have assented; by which it appeares, this Parliament cannot be held, proroged, or adjournied elsewhere without the consent of both Houses of Parliament now assemb­led; so that this Assembly at Oxford is no Parliament, and consequently their pro­ceedings a meere nullity in judgement of Law, and withall subject to severe Censure, in regard they have assumed to themselves the Supreme Authority of the Kingdome without any warrant of Law so to doe: and that spurious generation of Bastards, or illegitimate Children, which seeke to sever and divide the Power and Authority of this High Court, by affirming any legall pre­sence of this Assembly elsewhere; the wise Salomons of this Parliament will in their due time bring to condigne punish­ment.

Well then, they being in Parliament, [Page 37] and a high Court of Justice without the King [...] personall presence, Inferiour Courts may command Posse comitatus. what question can be made of their power, even as a Court of Justice to constraine and compell all persons, yea even by force of Armes, to submit to their supreme Authority; and in case of resistance, if inferiour Courts may command Posse Comitatus to execute their Processes and Injunctions, as it is manifest they may, for in one common Case of Replevin from the Court of Common Pleas, the Sheriffe of the County as Minister to the Court of Justice, if the party that hath taken a Distresse carry the same to a Fort or Castle, to the end it may not be re­plevied, he may command the power of the County to attend him, and abate that Fortlet or Castle in case of resistance, deli­vering by Replevin the Cattell to the ow­ner. Surely then the Parliament in case their Power be contemned and disobeyed, may command Posse Regni, and not onely Posse comitatus, to bring all persons rebelli­ous unto the Justice of that High Court, there to receive according to their merits. And th [...]s is the case of this present Parlia­ment (as I take it) who have legally Sum­moned the Members of both Houses now absent, to attend the Service of the Houses, and they have not appeared, but absolute­ly refused to obey the Summons, Processe, and Power of that Court; which for my part, what offence it is, and where Censu­rable, I leave it to the world to judge up­on, wh [...]t hath been formerly spoken, there [Page 38] being no absolute case of necessity to plead for their absence (as I could ever yet per­ceive) and the Lawes and Statutes of this Realme being peremptory in the mulct and penalty thereof.

The Kings pre­sence representa­tive by 33. H. 8. supra.Now peradventure it is necessary to know in what the Royall Assent Personally or Representative is required, and that is plaine, in enacting any Law or Statute to make it perpetuall to oblige the people; I conceive the Royall Assent must precede, yet the Royall Assent cannot in Justice be denied, neither with a Le Roy s'duisera sus­pended, unlesse satisfactory reasons be gi­ven for the same unto the Parliament, for the publike good, as also the confirmation of them is no act of transcendent grace, but of right and Justice, as hath been formerly spoken.

The power of the Parliament to make Ordi­nances paralleld with this power in inferiour Courts.Nay further, it must be granted that as incident to this great Court, they may make Ordinances to binde the people, Sedente Parliamento without any royall assent, unto which Ordinances, although not grounded upon the positive Lawes of this Kingdome, the people ought to yeeld obedience as well as to the Ordinances, Ordinances binds untill definitive Judgement, though not transacted in plena cur. Orders, and interlocutory Judgements in other Courts of Justice, unrill definitive or finall Judgement, which is for the most part in Plena curia when the Court is full, but that other power is used, although but part of the Court be then sitting, and bind­eth all persons untill finall Judgement; it is also plaine, that in other Courts their [Page 39] Orders, Ordinances, Ordinances binding though not grounded upon the posi­tive Lawes. and interlocutory Judgements are not grounded alwaies upon the positive Laws, but upon intervenient ac­cidents, arising upon materiall circumstances of time place, or other emergent causes, which Orders are held by the Sages of the Law agreeable unto equity and Justice, al­though no expresse Law to warrant the same. In Chancery many crosse Orders, the one to the other in a cause there depen­ding, yea almost seeming contradictory, yet in Law and conscience justifiable; and he that shall disobey those Orders is accoun­ted a rebell unto the Law, the King, and his royall Government, Jurisdiction of Courts title Par­liament. as appeareth by the Writ of Rebellion usually in those cases issuing; and Sir Edward Coke affirmeth, this power of Ordinance antiently pertaining to this high Court of Parliament.

And I know not but they may proceed to definitive Judgement in Causes not­withstanding any thing that hath been for­merly spoken, The Power of Parliament to proceed unto finall Judgement in case of wilfull absence of any the Judges of this Court pa [...]al­leld with this power in inferi­our Court. The Court full in Judgement of the law without those Judges which are wil­fully absent. if any Members of the Hou­ses, who are by Law Judges of this high Court, shall refuse to discharge the trust committed unto them, as the case now is, and wilfully by absence or delinquency make themselves uncapable and unworthy of that great service, for then I conceive it cleere that the Court is full in Judgement of Law without them; and under favour, there is no Law in point, but the remaining Judges may proceed by the same autho­rity. For to examine a little the course of inferiour Courts of Law, if any one or [Page 40] two of the Judges of the Kings Bench, or Common Pleas, shall obstinately recede from that Court, and deny his attendance there for the publike, shall not the residue of the Judges transact all matters there de­pending? Certainely they may, and further they ought so to doe. And although for conveniency or conformity, or to the end the Judgement may be the more unquestio­nable being confirmed by the greater num­ber, the weighty matters are agitated and determined in Plena curia for the most part, yet I take it cleere in case of absence, espe­cially wilfull or obstinate, the remaining Court may debate and finally sentence all matters incident to their jurisdiction. In­deed in some particular cases, the chiefe Justice or Judge hath formerly had the sole power as concerning Writs of Errour, viz. that the warrant for the issuing out the Writ of Errour to the Chancery ought to be under the Teste of the chiefe Justice of the Kings Bench, No judiciall but ministeriall acts by law trans­acted solely, by any one Judge in inferiour Courts. vid. Sup [...]a. but that Case or any of the like nature I conceive are only mini­steriall; but if a Writ be once returned in Court, and so the Cause there depending, no doubt the remaining Judges may judi­cially heare and determine. Now if so in these lower Courts, we cannot dis-affirme the same in this eminent Tribunall the Par­liament, the Court being the moddell and patterne of all other Courts, the Gnomon that points out the course of the Sunne, the course of Justice and equity to all the other Courts, there being no brightnesse or lustre [Page 41] of Justice in inferiour Courts, but resides more fully and more aboundantly in that high Court of Parliament.

So that I conclude, the Parliament may make Ordinances, Orders, give Judge­ment and Sentence definitively in all mat­ters whatsoever, without the Kings perso­nall presence, or any of the Members of either Houses, their absence being such as is formerly declared, and that upon the reason of Law in these riv [...]lets of Justice, their latitude of power, and the superlative authority considered in themselves and in their course of pr [...]ceedings, being not so much as intended to be here mentioned, but onely by way of comparison or re­semblance of the Law in inferiour Courts, to make things more conspicuous, not any waies to dishonour this Court, as if it should emendicare justitiam, begge or bor­row the rules of Justice from inferiour Courts, who ar [...] but tanquam anc [...]lle, like handmaids to this Lady and Queene of Justice; as also it is done ea intentione to informe vulgar capacities per notiora nobis, by things even subject unto sence, to the end they might (if possible) be satisfied.

I should now enter into the proofe of the violation of this priviledge, almost for­gotten by this digression, namely the trans­acting of matters belonging unto this high Court, by the new erect and pretended Par­liament at Oxford a greater violation in this particular, then if any inferiour Court of Justice in this Kingdome had assumed or [Page 42] arrogated this authority, The Assembly at Oxford unwar­rantable by law even in their Session, much more in their proceedings. because this Assembly at Oxford have not so much as any colour of Law to warrant even their Session, much lesse their pro­ceedings; the matters there trans-acted and adjudged in derogation and dishonour of this high Court, being so many and nu­merous; as also the extrajudiciall arraigne­ment of the Votes and proceedings of this Parliament, but I thinke it is manifest to all the world, and no man ignorant thereof.

The many and weighty Remonstrances, Declarations, and Ordinances of this high Court dec [...]ared, and pronounced null and void at Oxford and elsewhere, by Declara­tions of his Majesty extrajudicially framed. Much might be spoken herein with much sorrow, and peradventure not without of­fence, therefore I will desist, and close up my meditations on this particular, protesting nothing but the delivery of the truth with meekenesse and moderation; and my soule is full of heavinesse and lamentation, that ever so unhappy an occasion should be mi­nistred, [...]eseeching God (if it may stand with his Will and Pleasure) to heale all our wounds, and to reconcile all differen­ces with peace.

There is another right of Parliament yet behinde, which requires me not to be silent, as being of all one of the chiefest; by breach of which, the Sword is gone through our Land. Armies of men have been raised, whereby not only violation of Lawes, Rights, and Justice, but even the destruction [Page 43] of all is at hand, unlesse God in his mercy prevent it. In briefe, we have seene great forces raised and maintained by the King, without any Law or authority to warrant the same, being (as I suppose) misinformed and unadvised herein, The Priviledge or right of Par­liament. it being directly against the right and power of Parliament which is this; That no Armies of men can he raised by the King, or any subordinate authority under him, but as the positive Law hath prescribed, unlesse by consent of Parliament. And here peradventure it will be expected I should speake of the Militia of the Kingdome, The Milita ab­solute or gene­rall. Vid. infra. as being a matter at this time of the highest concernement, but I will referre it to a distinct debate by it selfe, as you shall perceive hereafter in this discourse; The Milita po­sitive, or by the positive Law limited. and here onely that part of the Militia that hath relation to the positive Lawes, I will open unto you, and shew you even here the transgression of the Law positive, it being not onely against the ancient Law of the Land, but llkewise against a Stature, unto which his Majesty hath given his Assent this very Sessions of Parliament.

The ancient Law of this Land is mentio­ned in the Preamble of this Statute, viz. That none is compellable to goe out of his Shire to the Kings warrs unlesse it be in case of necessity, of sudden comming in of strange enemies into this Land, as some Sratures recite the Common Law; and other Sta­tures w [...] out the word (necessity) in the reci [...]s [...]ut, [...]e Common Law, but it is not [Page 44] at all materiall, as you shall see hereafter. The body of this Statute is for the releefe of Ireland against those Popish Rebells, An Act for the releefe of Ire­land. who in a short time have made a populous and rich Kingdome even almost desolate. You have heard the Common Law, which was to secure the Kingdome in case a Parlia­ment could not so speedily be called for the defence thereof; but it is plaine, that hereby is intended, (Of necessity) some Statutes re­cite the Common Law thus, others not. that no man is compel­able to serve the King in his warres, against the representative Body thereof, for that is not for the defence of the Land, but for the ruine thereof, they being in no case to be conceived enemies unto the King, or the Realme, but as the supporters, pillars, and maintainers of all justice, and peace in this Common-wealth.

The Common law now in force to [...]ching the Militia extend­eth onely to Tenures or Con­tra is.It appeareth by this Law likewise, that none are compellable to goe out of their Shi [...]es to the Warres, although a suddaine incursion of strange enemies, but onely those which are bound by Tenure or Con­tract, and that none others can be forced to serve the King in his warres, unlesse by grant of Parliament; The statute of Winchester see­ing downe an Assi [...]e for land, and goods, and that without re­lation to Tenures or Contract [...] is now not in force. Vid infra. and this appeareth evidently by the Statute of 4. of H. 4. 13. a very weighty and worthy Act for our purpose, for that Statute reciteth and con­firmeth all the Statutes formerly touching this particular, as namely, 1 E. 3. 5. 18. E. 3. 25. E. 3. which said Statutes recite the ancient Common Law; and this Statute with the others are but declarat [...] [...] the Common Law, so that open t [...] estrnce of [Page 45] this Statute, you open the Common Law, and Statute Law touching this particular. Now it appeareth plainely by the excepti­on in this Statute, 4 H. 4. 13. The exception of Ser­vices and De­voires other then Millitary was not of neces­sity, but to satis­fie those who were not so conu­sant of the lawes, for sure they had not been inclu­ded, the stile of the Act, is of millitary services onely. and by the exception likewise in the Statute of 25. E. 3. that none shall be charged to finde men of Armes, but onely those that hereunto are bound by Tenure or Contract, for the ex­ception alwaies is parcell of the premisses, and relateth in Judgement of Law there­unto, therefore the enacting part of these Lawes must be onely meant of Military services, in respect of Lands holden by such services or devories, and no otherwise; un­lesse you will make the exceptions (which are as it were explanations of the mindes of the Law makers) meerely frivolous. Nota. The exception is of services due by Tenure, there­fore so must be the body of this Act intended. This Assize was some ancient law antiquated or not in force, revived by Winchester, b [...]t Winchester being repealed this Assize is of no fo [...]e. It appeareth thus by the meaning of 1 E. 3. cap. 5. before spoken of, that the Common Law recited, must be intended onely of Tenures or Contracts. And further, these words (otherwise then hath been done or used in times past for defence of the Realm) doe partly relate to the Statute of Win­chester, which Statute sets downe the Assize or proportion of Armes for Lands and goods, and withall is but declaratory of the Common Law or Statute in this, but it proportions the finding of Armes in a way compulsary, which before was not so, so that you see the result of all is this; none but those which are bound by Tenure or Contract are compellable to serve the King in his warres, within the Kingdome or without, and that they onely in case of [Page 46] suddaine invasion, Rebells are not enemies as the words of the common law are so that it may be further urged upon this Law, viz. (the Common Law before recited) that not onely against the Parliament, but even to suppresse any private insurrection or rebellion of the Subject within the Kingdome, the King cannot force the Subject out of his Shire, for the words are as formerly you have heard them, unlesse in case of suddaine comming in of strange enemies, &c. and to make the vigour and force of this Law, without doubt such is the judgement of this Parliament in recitall of this Law as you may perceive. Instit. Sur. Lit­tleton. The Tenure of those that hold by Escuage ex­plained. (This law) viz. the common law re­cited in 1 E. 3. 5 Service by E [...]cu­age to be per­formed out of the Realme. Sir Edw. Coke, ibid. 1 E. 3. ca. 5. good law, none shall be force [...], &c. for Escuage, or forraine ser­vice is not com­pulsory by the positive law, but by Parliament; Sir Edw. Coke, f. 69. perhaps is misprin [...]ed in these words (if the Ten [...]re be t [...] goe into William, Hiberniam, &c.) and the words should be thu [...] (if the Voyage Royall be to goe, &c. I leave it to the judicious. The Law may see [...]e to include a generall Tenure by Knights ser­vice, as a speciall (as to me it seemeth) but if so, not materiall since Nulla sequatur pena Sir E. C. f. 69. in his Institutes, where he saith, that ( Scocia is put but for example, seemeth to incline that the law is intended of a speciall Tenure. Sir Edward Coke seemeth in his Institutes to say, That he that holdeth his Lands by Escuage, is bound to attend the King in his warres out of the Realme, contrary to this Law formerly recited; but his meaning must either be intended where the Tenure is expressed to that purpose, as to goe in Scotiam, Hiberniam, Pictaviam, &c. and then it is nothing to impeach this Law, as being intended of generall Te­nures by Knights service, &c. or otherwise if his intention be also of a generall Te­nure by Knights service, such as draweth unto it Escuage, yet if the Tenant atten­deth [Page 47] not Nulla sequatur pena by Law, untill the penalty of Escuage for non attendance be assessed by Parliament, so that you see upon the point the Common Law formerly recited is still in force, viz. That none are bound to attend the King in his Warres, either within or without the Realme, un­lesse in case of sudden invasion, unlesse by their Tenures, if by their Tenures bound to attend him in forraine service (as that is not cleerely granted) yet you see no pe­nalty ensues for default thereof, unlesse the high Court of Parliament impose it, a pre­sident of which Escuage assessed, Service not compulsary, in effect no service. we have not had since 8. E. 2. no such service penall or compulsary without Parliament, which is in effect as if you should say, No such ser­vice at all without consent of Parliament.

But I will leave the Common Law (I hope) vindicated from all objections, and come we to the Statute it selfe; and that is, that such number of Souldiers shall be im­prest in all Counties of this Kingdome by the Committees for that purpose, as shall be appointed by the King and both Houses of Parliament. This is the substance of the Act, if not the words, and here you may see this Statute is tender of the ancient Birth­right and freedome of the subject, for it re­citeth it, and withall maketh but a tempo­rary provision for Ireland, The statute for the releese of Ireland but temporary. The Common Law onely in force for the Militia of thi [...] Kingdome against all persons except the high Court of Parliament. Vi. infra. which occasion ceasing, the Common Law hath its force [Page 48] againe, so that as to the Realme of England and elsewhere except Ireland, the Common Law hath its force, and is at present effectu­all against all power and authority either of the King or Subject, but only the su­preme authority of Parliament.

Object. But it may be hence objected, that since this Act extends onely to Ireland, therefore the Militia for the service of this Kingdome rests as it did before, not within the letter or sence of this Act.

Sol. (Implication) for sure the King would not have joyned in an Act, if he might have done it legally before. Object.I answer, if we should admit this which for Argument sake we onely doe (there being something to be gathered by im­plication from the words of this Law, touching the power of the Militiia, as ap­pertaining to the Parliament) then the Common Law formerly recited must rule us; and here it is said, The Common Law, That none shall be forced out of their Shires &c. is intended without wages, and there­fore if they have pay or wages they may be legal [...]y compelled by the King to attend his service in the warres, and so are the Sta­tutes of 1 E. 3. 18. E. 3. and divers others, and the opinion of that reverend Judge Thirninge in the time of H. 4. is so to be intended.

Sol. No (Innuendo) in private affairs much lesse in Acts of Parlia­ment allowable.I answer, first, if this should be granted, it is a strange and dangerous way to expound Lawes and Statutes, and to inlarge the mea­ning of the Law-makers with an Innuendo, a thing not permitted even in private af­faires, much lesse to be allowed in generall and publike lawes, viz. That they shall not [Page 49] be forced out of their Shires, &c. innuendo without wages, by this course Lawes and Statutes shall be wrested, and made a no [...]e of waxe, capable of any forme or exposi­tion; but there is one great reason which will make this Objection but meere cavil­lation, if I have not satisfie! it already, and that is this; That one Session of Par­liament, viz. 1 E. 3. confirme; and makes both these Lawes. 1 E. 3. ca. 5. 1 E. 3. ca. 5.7. explained. 18. H. 6. 19. 7. H. 7. 1 3. H. 8. 5 [...] recites the Common Law before remembred, and con­firmes it too, 1 E. 3. ca. 7. and all other Statutes relating to this Law have these words, or to this effect: That Souldiers Imprest, viz. Forreine service not com­p [...]lsary by the law positive, pe­nall by authority of Parliament, Vt supra, 1 E. 3. ca. 7. may he [...] also intended of the Impressing that Militia, that was not hereunto bound either by Tenu [...]e or Contract; both branches of the Militia, intended by this law, legally raised or imprest, 1 E. 3. ca. 7. intended most espe­cially of that generall and more absolute power of the Militia, not of the positive Militia, viz. of those that were bound by Tenure, &c. imprest by the King The word (Commission) in the statute of 1 E. 3. ca. 7. must be intended, Commissioners derived from the authority of parliament, not any o [...]her regall Commission; so forreine service might be [...]ompulsary, even of those that we [...]e bound by their Tenures, viz. by such Commissions. Commission for Scotland, or Gascoigne shall have wages, Or forreine service. f. 1. E. 3. 7. the one Statute is generall in the negative, That they shall nor be forced out of their Shires either with wages or without, as the sence is plaine to any rationa [...]l man. The subsequent Law saith, That the Kings souldiers shall have wages, so that having wages allowed they may be compelled to serve. Here seemes repugnancy or contra­diction may be said.

To reconcile this, and to manifest to the world the honour and wisedome of a Parlia­ment, notwithstanding any aspersion; by the rule of law and reason you must make such exposition of any Law as in all parts may be operative and effectuall if it may be, and that each Chapter of a Session of Par­liament may have their genuine and proper operation; why then these Statutes Ex viso [...] ­ribus actus (an excellent way of ex­pounding Statutes, by comparing and con­ferring one Statute with the other) are thus to be intended, 1 E. 3. ca. 5. & 7. Statutes diffe­ring in matter and substance. viz. That 1 E. 3. ca. 5. and 7. are Statutes differing in matter and substance, the one not having any relation to the other, though they may so seeme upon the first view, for 1 E. 3. ca. 5. ex­tendeth onely to the Militia limited by the positive Lawes, cap. 7. to the Militia im­prest by authority of Parliament for for­reine service, which could not legally be dore without this authority, as you have formerly heard, and so the one doth not crosse or oppose the other (which of ne­cessity they must doe, if other constructions be made) for they treat of severall mat­ters, and the sence of Law makes a great disparity betweene them, though there be a sound of words seeming otherwise; so that 1 E. 3. ca. 7. is thus to be intended. The Kings Souldiers going in forreine service shall have wages, viz. The Kings souldiers legally raised by authority of Parliament, and so there is no violence offered either to the letter or sence of either of these [Page 51] Lawes. The power of the Militia to be implyed by the King in For­reine service with wages, printed, in Cal­vines Case de­nied for law. That which is printed in Calvins Case, a famous Case well knowne to Lawyers, was but the arguments of Judges, [...]o resolutions in this particular, and i [...] they had been resolutions they had been erronious, as it is manifest by what is for­merly spoken, and by the judgement also of this Parliament, in reciting the ancient Common Law in this particular in force even at this day.

Much labour hath been spent in one of the Kings Declarations to put in (or) for (and) in the Statute of 1 E. 3. No necessity but forreine invasion upon the Com­mon Law of the Statute [...]. which re­cites the Common Law, and so to extend that Statute, and the Common Law likewise to home defence, but the truth of it is, there is neither (or) nor (and) in the Statute of 4 H. 4. which is a weighty Sta­tute, and recites the Common Law in this particular, and the Statutes confirming it, for the words of this Statute are, Forreine service by statute, this Parliament en­acted a f [...]tio [...] Home defence. None shall be forced out of his Shire to the Kings Wars, unlesse in case of necessity of suddain comming of strange enemies into the Realm; thus you see all passages cleared. His Ma­jesty in one of his Declarations saith. That he yeelded more willingly unto thi [...] Act for releefe of Ireland, it being no matter of home defence but forreine as being also formerly controverted how groundlesse the controversie was on the adverse part for disposition of the Militia, for forreine ser­vice by the regall authority, you may see by what hath been formerly delivered.

Also we may reason thus upon this [Page 52] Statute, viz. The Statute for releefe of Ireland, that if no forces can be raised by the, King for the defence of a forreine King­dome, though subject to the Crowne of England, a fortiori, they cannot be raised for home defence without consent of Par­liament, and certainely if they might be raised, they must be maintained, and what provision hath the Law made for them, verily even none at all: then it followes, that Armies of men illegally raised must be illegally maintained, that is to say, By ra­pine and oppression.

Object. Commission of Array.But it is objected, That the Kings forces are raised legally, viz. by a Commission under the Great Seale, commonly called The Commission of Array; Sol. to which I an­swer, That the Commission of Array is against the fundamentall Lawes of this Realme, and is neither warranted, neither by Common Law or Statute, or president of former times, it being against them all directly forcing men to goe out of their Counties, as it is now put in practice, against the ancient Common Law formerly re­membred, and to finde Armes contrary to the Assize limited in the Statute of Win­chester, and subjecting mens bodies and estates to imprisonment, and other penal­ties imposed by Commissioners for refusall, things not warranted by any Law.

Object. But it is urged, That the Law of 5 H 4. a Statute not in print, upon which his Ma­jesty grounds his Commission of Array is in [Page 53] force. Indeed, that Statute the King hath made use of in print to publike view, for his sole and onely warrant of this Commissi­on, but you shall see presently how unsafe a refuge it is, yea how upon the first triall of it, it will not endu [...]e.

For in the first place I say, Sol. It is abso­lutely repealed, and that by the Statute of 21. Jacobi, by which all former Statutes concerning the power of Arraying men are repealed, and then surely Statutes that concerne the execution of this power must needs be also repealed, as this of 5. H. 4. is, 5 H. 4. Depends upon Winchester. as even reason teacheth; for how can any Statute touching Commissioners Arraying, or arming men stand in force, when the Sta­tute of Winchester, the sole Statute concer­ning the power of Array is by the Law re­pealed; but to make it plaine to every capacity, the Law of 5. H. 4. is onely a Law for the indemnity of Commissioners, putting in execution the Statute of Win­chester; Now if the Statute of Winchester be nor in force, this of 5. H. 4. 5. H. 4. Tempo­rary no statute. must likewise fall to the ground, because it doth necessa­rily depend thereupon. Further, this Sta­tute of 5. H. 4. was but temporary, and so expired long agoe, or no Statute at all, but a Commission inrolled, or the like, ne­ver assented unto, in nature of an Act of Parliament, as is learnedly proved by the Remonstrance of Parliament. Concerning the Commission of Array, I will crave the patience to answer one Objection more particularly, because it seemeth materiall; [Page 54] and this is made by the Penner of one of the Kings Declarations, Object. to wit, that 21. Jacobi repeales indeed the Statute of Winchester, but not 5 H. 4. Refutation of the Commission of At [...]y by Par­liament. because Winchester is onely for preservation of me peace at ordinary times, as also the As [...]ize of Armes in that Act mentioned, a petty and small proportion not sutable or agreeable to extraordinary or great occasions, as suddaine invasion, or the like; and therefore 5. H. 4. Authori­zing a large Commission for the raising and leavying of Armes, agreeable to any occa­sion ordinary or extraordinary must needs be still in force, notwithstanding the re­peale of Winchester, they are severall Sta­tutes to severall ends and pu [...]poses; and therefore the repealing of the one repea­seth not the other.

Sol. Winchester for dese [...]e ordinary and extraordi­ [...]ry.I answer, The Statute of Winchester is in­tended by the very words and sence of the Law, for defence ordinary and extra­ordinary, and so is the Judgement of a Parliament, in 3. R. 2. that Winchester was made for the defence of the Kingdome, and the small proportions of Assizes of Armes there mentioned, are but onely mentioned for example; Ex [...]mpla illustrant non testrin­gunt l [...]gem, Assises or proportions other then in that Statute limited, and above those proportions are plainely collected from the very words of this Act; as also that Winchester did extend to other propor­tions was the judgement of the Parliament, 3. R. 2. before specified.

Come we then to 5. H. 4. that recites the [Page 55] Statute of Winchester, and confirmes it, as likewise that the Statute of Winchester was made for the defence of the Kingdome ordinary, The very words of 5. H. 4. shewes that Winchester was for defence ordinary and extraordinary. and extraordinary appeares by the very words of this Act for defence of the Sea-coasts, and that in that case the Statute of Winchester shall be observed: Are the Sea-coasts defended but for feare of forreine invasion? which likewise was the cause of making this Act; for but the yeare before the French attempted to in­vade this Kingdome: It may be said then, Object. What needs this Act of 5. H. 4. if the Statute of Winchester provided sufficiently for defence of this Kingdome.

I answer, Sol. That this Act was made to rectifie illegall Commissions, not warranted by the Statute of Winchester, and this was the sole end of the making this Act. The true sence and effect of the statute, 5. H. 4. The Commissioners putting in execution the Statute of Winchester, the ancient and only knowne Assize, No do [...]bt the Military Tenure by common law was compulsary, viz. by Dist [...]esse or the like, to services incident by law. for Armes compulsary are saved harmelesse and inpemnified by this Law, notwithstanding their former large and illegall Commissions, and that they shall execute so much of their Commissions as was warranted by this Statute of Win­chester and no more, and for not executing the other illegall clauses in their Commis­sions, at the making of this Act issued forth, the Commissioners are saved harme­lesse and indemnified by this Act; so that you see 5. H. 4. depends upon Win­chester notwithstanding the former objecti­on. Eradicate a Plant you destroy the [Page 56] branch, so the repeale of the Statute of Winchester repeales 5. H. 4. as necessarily depending upon it.

(Out of their shi [...]es) viz. un­lesse in case of suddaine inva­sion.The conclusion of all is this; The anci­ent Common Law formerly recited is now in force, none could be forced to finde Armes, or serve in person, but those that were thereunto bound by their Tenures of Contracts, nor those any further, or other­wise, that is to say, out of their Shires, or with proportions of Armes greater then they were bound unto, by their Tenures or Contracts; yea it appeares that by the Common Law Armes were proportioned, he which held by a Knights Fee was to finde a man in Armes, and so proportionally De coeteris, and therefore Winchester did but affirme the Common Law in this, or fur­ther en [...]arge it, as also make the proporti­ons of Armes more penall and compulsary then before. The statute of Winchester sets downe an Assize for land; and goods, the common law ex­tended onely to lands, and only to such lands as were bound thereunto by Tenure: by this statute all lands are tyed to finde Armes pro­portionall, but whether those that wee bound by Tenure were to be Assessed by the Act, and so charged with a double propor­tion of Armes. In The ancient Assize in this statute mentio­ned, was surely some law antiquated or not in force, or at least not compulsa [...]y, therefore Winchester revives it, the common aw for Tenuures is now in force onely.

Now Winchester being repealed, there is neither Common Law nor Statute to force any man to the finding of Armes, but onely those that are bound unto it by their Te­nures or Contracts; and that thus the Law is taken, upon all these Statutes concer­ning finding of Armes appeares by Sir Ed. Co [...]e, in the secon [...] part of his Instit. [Page 57] f. 528. in his Exposition of the Statutes of confirmations Chartarum libertatum, for he concludes the Law to be, that no man shall be charged to Arme himselfe or others, save such as hold by such service of the King, or other Lords, whereby they are bound to it, unlesse it be by consent of Parliament; and further saith, that that was the Common Law which these Statutes did affirme.

There is one Objection more, Object. and it is strangely and much insisted upon by his Majesty, in one of his Declarations for he maintenance of his Commission of Array, and for the nullifying of all these positive Lawes formerly spoken of, and that is upon a Sta­tute in force, the Statute of 11. H. 7. ca 1. 11. H. 7. ca. 1. a late Statute and subsequent to all these, by which the service of the Subject in the Kings Warres, both within the Kingdome and without, is recited, and the Subject charged therewith, according to their duty of Allegiance.

I answer, Sol. this opened will likewise prove nothing, 'tis but the preamble of the Act, and all the doubt will rest upon these words formerly mentioned.

The Subjects attendance on the King in his Warres (either within the Kingdome or without) may plainely be intended according to the positive Lawes formerly remembred; The words of the preamb e. for some especially by their Tenures were bound to attend in forreine service, as where their Tenures were to attend in Scotiam Pictaviam, &c.

Command­ment of the King what it intends.(The Commandement of the King) here mentioned, may either be intended according to their Tenures for forreine ser­vice, or otherwise the Commandment may be taken for his legall command, not his personall, and that you have heard what it is, the command of his high Court of Parliament, Nota. and so what question of the Impressing men for forreigne service; but the Regall command according to their speciall Tenures, is that, which in my judge­ment is full and satisfactory.

According to the duty of their Allegia [...]e ex­plained. Alleg viz. natu­rall, legall, locall.Come we then to those words (accor­ding to the duty of their Allegiance) the Subjects Allegiance is naturall, locall, and legall, but the naturall and legall Allegi­ance is here intended, and what is the legall Allegiance, you shall see likewise is the naturall; therefore the legall Allegiance opened ends all.

Legall Allegi­ance what it is, viz. the positive Militia.The legall Allegiance is that per [...]onall service which the Subject oweth unto his Soveraigne by the municipall Lawes of this Kingdom; and that you have heard at large formerly what it is, I need not use repititi­on. Legall Alleg­ance and natu­rall agree. Now the naturall Allegiance and legall differ not, but rather the legall Allegi­ance is explanatory of the naturall, for the Law saith, That the Subject shall serve the King in his Warres Salvo contenemento, viz. Secundum starum & facultates, a respect being had to every mans state, property, faculty, or ability; and to that purpose was the Common Law, and the Statute of Winchester limiting the Assize of Armes, viz. [Page 59] Secundum starum & facul [...]ates, what saith the naturall Allegiance otherwise, but that every man shall attend the Kings Pers [...]n in his Warres, according to his state and abi­lity, if other construction should be made, the Law naturall should be unjust, and without care and preservation of the Com­mon Wealth, if the impos [...]tion of this charge were not [...]br [...]o respectu, to every mans property, state, and faculty. Thus you see what is meant by (the duty of their Allegiance within this Statute, Legalis ligeantia a [...]p [...]ex. peradven­ture it may be urged, there is another branch of the legall) Allegiance also, viz. when men be imprest for the service of the King by the authority of the high Court of Parliament, without a [...]y such speciall rela­tion to their Tenures, or Estates, or to the positive Lawes. I grant, This Alleg [...]ance is likewise [...]a­bito respestu ad statum, &c. agree­ing with the ot [...]er legall, as also with the na­turall, for other­wise Acts of [...]arliament should be unjust. One branch on­ly of the legall Allegiance in­tended by 1. H. 7. ca. 1. viz. the Allegiance due by the positive law. this is the legall Allegiance likewise, but this Allegiance is not intended in the Act of 11 H. 7. before specified, for that Allegiance must [...]ecessa­rily be meant t [...]e Allegiance due by the positive Lawes, and to other, because it is not the duty of the Subjects Allegiance, but what is positive or in esse; the other is not the duty of t [...]e Subject, neit [...]er is it any Allegiance at all untill by Parliame [...]t it be so injoyned, but tests in the i [...]te [...]im in nubibus, or in consideration of Law; there­fore the llegall positive Allegiance, viz that which is due by the positive Lawes [...]ely is intended by this Statute.

If it were taken in the other sence in this Statute (as it is plainely otherwise) Nota. [Page 60] yet it would not advantage the other part, All statutes pen­ned in such ge­nerall words, as this is, intend onely the legall positive Allegi­ance as before. but bring them a little nearer to the Par­liament, and their power and authority, which they so much decline.

What shall we then say unto Armies of men thus illegally raised by the King, viz. dirctely against all these positive Lawes formerly remembred; Can we in Law or conscience aide or assist them? By Law we cannot as you see, then surely we cannot in conscience, Humane lawes injoyned to be observed by Scripture, the Law of this Land bind­ing the conscience to obedience, and the observance of these humane Lawes, being so often in the holy Word of God Com­manded; and for this reason as I conceive, these forces thus raised, Rebells and Traitors not rai­sed by lawfull authority. are termed by a Declaration of Parliament, Rebells, and Traitors, because not raised by lawfull au­thority; and surely if Rebells and Traitors, they are to be suppressed, not assisted, and that men may be Rebells and Traitors, and decline from their duty of Allegiance, al­though they follow the Kings Person in the Warres, appeares by the foresaid Sta­tute of 11. H. 7. ca 1. the words of the Statute are for defence of the King and the Land; and therefore if against the Land, as it must be, Traitors though att nding the Kings Person in the Warres by 11. H. 7. ca. 8. if against the Body representa­tive, the Parliament, it is Treason within thi [...] Law, although they attend the Kings Person in the Wars; and this is that Statute which his Majesty hath frequently made use of in divers printed Declarations of his, whereby he would seeme to exempt all those that attend his Person in the warres [Page 61] from any impeachment; but surely this Statute will not aide him, for it is apparant by the Proviso of this Statute, Provis [...]e. Explanation of the Proviso. that there is a declining from the duty of their Allegi­anc [...] although they follow the Kings Per­son in his warres, otherwise the Proviso were meerely idle, but to explaine it yet [...]urther, Proviso relates alwaies to the body of the Act in the judgement of the law. The Proviso relates to the body of the Act, the body of the Act is onely to exempt those that attend the Kings Per­son in the warres, and doe him true and faithfull service for the defence of his Person, and the Land. Service done unto the King in defence of the land is the legall positive Allegi­ance within this Act. Here you see Alle­giance is meant in the Proviso, viz. the ser­vice done unto the King in defence of the Realme, provided, that none shall take benefit of this Act, that shall decline from the duty of his or their Allegiance; that is to say, that shall not doe true and faith­full service un [...]o the King, and the Land, as is mentioned in the Act; and the word (None) in the Proviso is plaine, (None) relates to the body of the Act. No Traitor by law can have any benefit of law. viz None that shall attend his Person in the warres shall take benefit of this Act, if he shall de­cline from the duty of his Allegiance, and in this sence it must be taken and in no other; for future crimes it cannot extend unto other then mentioned in this Act, since by Law they are made uncapable of the benefit of any Law, if transgressors of the Law; Frustra legis auxilium implorat, This Proviso but explanatory. qui in legem committit, and therefore this Proviso idle, if so understood; unlesse you will tax a Parliament to be misconusant of the Lawes. Further, this Proviso (as it [Page 62] seemes to me) is but explanatory of the Act, and was not absolutely necessary to be incerted, This Allegiance upon this [...] hath relation only to the posi­tive law. Vi. ante. The subjects Allegiance unto the naturall ca­pacity of the King in respect of the politick. for certainely they had been included in the body of the Act as unca­pable of benefit thereby, if no such Pro­viso had been at all. What need I say more, the meaning of this Law is very well delivered by the Parliament in their Declaration concerning Hull. Here I might touch and that not extravigantly upon the Allegiance Royall, unto what capacity of the King it is due. You see a man may de­cline from the duty of his Allegiance, and yet follow the Kings Person; therefore the Allegiance is not due unto the naturall Per­son of the King onely, but it is due unto the naturall in respect of the politique ca­pacity, and that you see is the Judgement of this Parliament. The Subjects Allegi­ance may be declined, and yet the naturall Person of the King attended; and withall note, that in these times this is declaimed against as a Jesuiticall distinction, and yet the judgement of a Parliament.

Object. But it is further urged, That the penal­ty of this Law is remitted, and pardoned by the King.

Sol. I answer, That the Kings pardon avai­leth not here, Statute, made pro bono publico cannot be by any (non [...]bstante) dispensed with­all. for the Proviso expresly ex­cludeth all men from benefit of this Act, be it by the Kings Pardon or otherwise, if they shall decline from the duty of their Allegiance, and this being an Act for the service and defence of the Realme cannot be dispensed withall by any, Non obstante, [Page 63] in the Kings Pardon, as it is to those that pe [...]use the Lawes, manifest. I will yet crave further patience in the aforegoing particu­lar, in the arraying and arming of men, and shew you how tender the Law is here­in, in a Statute in 1 Mar. 12. No Warlike ap­pearance wit [...]out authority of la [...], but pun shable. (I take it) If an Assembly of men were made to doe any unlawfull Act, as to throw downe En­closures or the like, and did not depart within a short time after Proclamation, they were Ipso secto, without any furth [...] Act done, adjudged Relons by Law, and to suffer death; so tender is the Law of any Assembly, especially in any Warlike man­ner, to doe any unlawfull Act.

Nay further, No Warlike ap­pearance wi [...]hout authority of la [...], but punishable. it is a thing unlawfull for any men to Assemble themselves together, or to goe or ride armed in a Warlike man­ner, although no evill intention appeares, unlesse they doe it by lawfull authority or command; to goe or ride armed in Fayres or Markers is the forfeiture of their Ar­mour, and the [...]r bo [...]y imprisonable by 2. E. 3. ca. 3. 2 E. 3. ca. 3. and yet to evill intention ap­peares; and so are other Statures, that no man shall goe or ride armed upon penalties of Fire and Imprisonment, except the Kings Ministers in doing their Office, and (I take it) these Statutes last mentioned, The King [...] ­niall servants are here onely intended; his [...] nisters of Justice are specially here named by themselve Vi. infra. though ancient are still in force. Indeed the Kings servants are there spoken of in one of these Statutes, and withall there are these words subsequent (in presence of the King) so that the Kings servants in his prese [...]e may goe or ride ar [...]ed: but [Page 64] those either for their paucity were not then, nor are now considerable, or other­wise they were inabled in those times of danger for the preservation of the Peace and the Kings Person against disturbers thereof.

By the ancient Law and Custome of the Parliament, a Proclamation ought to be made in Westminster Hall, That no man, upon paine to lose all that he hath, should during the Parliament in London, Westmin­ster, or the Suburbs thereof, weare any privie Coate of Plate, or goe armed; and the reason hereof was, That the Par­liament should not be disturbed, nor the Members thereof (who are to attend the arduous and urgent businesse of the Church and Common Wealth, should not be with­drawne from their service. Thus you see, how tender the Law is of any Warlike ap­pearance. What shall we then thinke of great numbers of men in a Warlike Assem­bly armed, not in London, Westminster, and the Suburbs thereof, but even at the doores of the Parliament, environing the House of Commons, as it was since the Commence­ment of this Parliament

Object. But it is urged, That the King is compel­led to raise an Army for his owne necessary defence, his Royall Person, Honour and Estate; all which are now endangered and exposed even to ruine and destruction.

Sol. Admit the truth of these aspertions un­questionable, Who shall be Judges of these dangers, and the inevitable necessity of [Page 65] raising an Army? Surely no particular or private persons, No particular person. The Clergy no Judge. no not the Clergy them­selves, who have in these unhappy times (some few onely excepted) broken downe the wall of partition and separation; I meane have intruded upon the Civill Go­vernment, and have obtruded upon the People in their Writings and Sermons; those Positions and Maximes which ad­mitted, would shake, if not ruine the very basis and foundation of this famous Govern­ment. The King n [...] [...]udge, or at least no sole Judge. Many they are which I could here mention, but I conceive it done out of igno­rance, being not willing to discover errours (as I hope) not wilfully committed. Nay, the King himselfe cannot be the sole Judge, so hath it been declared and adjudged in a like Case; the very same in Law and reason this Parliament in a full Session, when the King and all the Members were then pre­sent in M. Hampdens Case concerning Ship-money, where the Opinion of the Judges, The King no sole Judge of the danger of the Realme. together with the Judgement given in the Exchequer Chamber (That the King was sole Judge of the danger of the Kingdom, of suddaine invasion of Enemies, or the like; and might compell his subjects to provide ships for so long time as he should thinke meet, whereby the subject was forced to contribute great summes of money) was reversed, damned, and sentenced as erroni­ous and illegall, destructive to the liberty of the subject, and contrary to the Funda­mentall Lawes of this Realme.

Now if any man shall say, Object. It is for the [Page 66] defence of the Kings Person, and that even the Lawes of Nature and reason warrant; and surely the Lawes of this Kingdome repugne not the Lawes of Nature and reason.

Sol. I answer, that the Lawes of this Realme provide sufficiently for the Person of the King, and for the security thereof, it be­ing high Treason by Law to compasse or imagine, by any overt Act the destruction of the King, although not effected, not so in the Case of the subject. Further, if you consider him according to the Law of Na­ture, then the case is no more but as the Case of a private man or person, who may Vim vi repellere, even by 2 multitude of persons.

(King) intends the politicke ca­pacity, not the naturall.But our Inquisition at this time is not in this capacity, but our question is of a King constituted by Law, and the policy of man, and therein that capacity, he can doe no more then what the Law doth warrant, Id Rex potest quod de jure potest, and therefore you see an end of this objection. Then to revert to our Discourse; by Law (it seemes) the Parliament are the Eyes of the Body Politick, The King no Judge, or no sole Judge in Parlia­ment by the law of inferiour Courts proved. and are the onely great Counsell of the King and Kingdome, whereof the King is the head; and they are to Judge of all dangers to the King or Realme, and the King himselfe is not the Judge, and we see it is so in all other Courts of Justice; the King Judgeth not nor medleth at all either in matters concerning himselfe or any other, there being Judges by Law appointed for [Page 67] that purpose, by whose Wisedom the King seeth, discerneth, discovereth, redresseth all errours, grievances or injuries, private or publike, particular or generall; how then can the King be sole Judge in this Case, of the necessity of raising an Army, although it were in his owne just defence, without his Great and High Court of Parliament ap­prove of the same? Is not this a violation of the Law and Government established? Ought not they at leastwise to concurre in judgement before any such Forces or Ar­mies of men can be raised, and this onely by the Law of inferiour Courts? The con­sideration hereof being of such high con­cernement, that the proceedings and acti­ons of all other matters seeme in comparison hereof not at all materiall: nay, if the King might be sole Judge in this Case, although the danger reall and just, this mischiefe and inconvenience would follow; Great mischiefe and inconveni­ence of the King should be sole Judge, viz. of the danger of the Realme. That the King in an Act of such high consequence for the generall good, contrary to his acti­ons and proceedings in all other Courts, even in matters of least moment, as is before mentioned, might upon surmise or sug­gestion of danger to his Royall Person, without any further consultation with his high Court of Parliament, raise, and main­taine an Army of men how numerous so­ever, and justifie the same as warranted by the Lawes of this Realme, to the great im­poverishment of the subject, and not without great perill (that I say no more) even to the very Principles of this well [Page 68] compacted government. Shall we imagine such a power and authority by Law vested in the King, in derogation of his high Court of Parliament, as makes the rules of Law and Justice meerely Arbitrary, as in those particulars afore specified we must needs grant, and yet in inferiour Courts, the same rules in Arbitrary Government, no where warranted or allowed; but contrary wise, their proceedings obliging both King and people to a mutuall observance, by a legall power and authority to that purpose setled in them? This were repugnant even to sence.

Now to summe up this point, if the King cannot leavie or maintaine any Forces by Sea or Land, as is formerly proved, though for defence of the Realme or his Person, upon his owne Judgement or apprehension of danger; What shall we then say to this effusion of bloud, the Authors and fomen­ters of this intestine Warre, shall they be protected? Surely at some mens hands this bloud will be required; and though they may here escape, yet righteous judgement must be expected hereafter.

Papists inabled, nay compelled to beare Armes contrary to the lawes, viz. 3. Jacobi 5.Also this matter seemeth more to be aggra­vated, since in this late great and numerous Army of the King, those persons who are prohibited by Law to come within tenne miles of the Court, disabled by Law to beare Armes within this Kingdome, con­trary to the Kings owne solemne Protestati­ons made unto his Parliament, are enabled, nay commanded to beare Armes to the [Page 69] destruction of the Kings subjects; I meane the Popish Party in this Kingdome, whose doctrine and practises both to King and State, in most execrable Treasons; and impious Conspiracies, hatefull both to God and man, are sufficiently manifest to all the world, and need not here to be re­membred.

Now there being such a cloud of Wit­nesses as is afore specified, Common Law Stat. judgement of this Parlia­ment proving the Armies Illegall. viz. the Common Law, the Statute Law, the Judgement of this Parliament in Master Hampdens Case, the very same in Law and reason convin­cing any capacity in the certainty of this truth, that these Armies now maintained by the King are not warranted by Law. What shall I say more, yea, what shall we thinke of this Commission of Array, Commission of Array destru­ctive of Parlia­ments. upheld by our opposites? What is this likewise but a meere usurpation, a plaine violation of the Lawes; and what would follow if this doctrine should be admitted, but a finall dissolution of Parliaments? For what would they then serve for, if Armies of men may (contrary to the positive Lawes) be raised without them? They would be at the best but (as the tyrannicall Bishop of Rome formerly boasted) Puteus inex­haustus, an ever springing Fountaine, to satisfie the ambitious desires of the mighty with the riches and wealth of the people; nay, peradventure Aides, Taxes, and Im­positions would be had at pleasure, and the people by force compelled to slavish obe­dience, as we have found by sad experience, [Page 70] too dearely bought in a branch of these Dominions, the unfortunate Kingdome of Ireland, where the insolencie of the Soul­diers was such, yea, even in the times of Peace, in the time of the late Earle of Strafford, that the Lawes were sleighted and trodden under foot, and the Paper De­crees of the Castle Chamber put in executi­on by these Agents in Armes, forcing the poore subject to obey whatsoever was in this wicked and illegall manner commanded; what difference now betwixt the Turkish Government and this new devised Monar­chy, of these Dreamers, the lives and estates of all men, being subjugated to misery and inevitable destruction; but God in his good time discover these evill instruments, and bring them to Justice, who labour to in­volue so great a Prince into inextricable errour and calamity. I promised modera­tion, therefore I will say no more, but will divert my meditations to the period of this discourse, as thinking I have satisfied mine owne conscience, it not others, in so large a debate hereof.

Object. There is one great Objection made by the adverse part, which if answered, this particular is satisfied; And that is, By what authority are the forces of the Parliament raised? Seeme they not as illegall, as un­warrantable? Sol. To which I answer, That the Parliament themselves in their Declara­tions which I have seene, make it onely on their part defensive, there being an Army intended against them, full foure yeares [Page 71] since the Army raised against the Scots, and afterwards for this purpose implyed to awe this Parliament, and to force them to con­sent unto such Articles framed by evill persons, touching the Government of this Kingdome; which appeares by the Depo­sitions of divers persons of note and quali­ty, annexed to a Remonstrance of Parlia­ment, 19. Maii 1642. which sure was long before an Army raised by the Parliament, or thought upon, the King being then pre­sent at Parliament; and I will not say it was by his privity or knowledge: Onely thus much I will say, That this Act was alone sufficient to breed jealousies and feares in the Parliament, and to provide further for their defence and security. Af­terwards this was increased by the Kings comming to the House of Commons in that unusuall manner to demand the Members, affrighting the Assembly there present, who upon request were denyed a Guard. Afterwards his Majesty at Yorke, at Notting­ham, had a considerable Army of men, to the number of foure or five thousand (as I have credibly heard by those that were then there present) and all this while no Army of the Parliament appearing, that I did heare of, only speeches to that purpose. Now upon all these proceedings, the Parlia­ment for their owne defence, the Kings Roy­all Person and Authority, the defence of the rights and liberties of the Subject, raised an Army, under the command of his Ex­cellency Rob. Earle of Essex, which whether [Page 72] or no defensive, or justly done, I leave it to the world to judge upon, that which hath been formerly spoken. But to make a more full answer, and to square my course in these Treaties by the positive Lawes, to stop the mouthes of clamorous people. The raising of Forces by the Parliament justi­fied as a Court of Justice. The Parliament and either of the Houses must be admitted to have supreme power of Judicature, without the Kings Personall presence, as the Rolls and judiciall procee­dings thereof sufficiently manifest, as is formerly spoken; and if so, then they have power to Summon, Censure, and judge all Delinquents, yea, force them to submit to the Justice of that high Court upon con­tempt, by enjoyning Posse commitatus, yea Posse Regni, to execute their Commands against all disobedient persons, unto the Justice and Government of this Kingdome, and this meerely by the Law of inferiour Courts, as I have formerly remembred; therefore this shall be sufficient.

Object. Legislative po­wer just.There is one thing that scruples the mindes of Malignants much, and that is, That the Parliament have hitherto procee­ded by a meere legislative power, and not by the positive Lawes, and that they in­stance in the Case of the late Earle of Strafford. Sol. To which I answer, first, That if they did so it were but just, according to the Supreme power of that Court, but to descend to our Adversaries, and to search all the Foxes Holes, that they may have no refuge. I take it cleere: that in the Case of the late Earle of Strafford, they [Page 73] did proceed against him, but according to the positive Lawes in respect of the Crime, The Common law of this Realme is in force in Ireland, and all statutes enacted before 10. H. 7. in this Realme are in force in Ireland. vid. Poynin [...] ley. though his triall might seeme somewhat differing, for surely either by the Common Law, or by the Statute of 25. E. 3. or by the Statute of 28. H. 6. as I remember, a Statute made and enacted in the Kingdome of Ireland, he was justly attainted of High Treason; as for the Act of Attainder, and the Proviso thereof, that it should be no president for the future, the meaning whereof I will open unto you hereafter; certainely it was not for want of Crime or Delinquency, as ignorant people and dis­affected falsly say; For a little to debate this particular in mine owne apprehension, and no further, because I have not lately seene this Act. (Act) vid. the act [...]f Attainder of of the Earle of Strafford He was at first by Bill in the House of Commons Voted a Traitor, which Bill was transmitted to the Lords for their concurrence therein; but the Lords being doubtfull De jure not De facto, as they were at the first, in the Case of the late Prelate of Canterbury, to wit, whether he were guil­ty of high Treason by the Positive Lawes or no, therefore for their satisfaction he was tryed in Westminster Hall per pares, by his Peeres upon their Honour, accor­ding to the course of the positive Lawes; a L. Steward being appointed, & found guilty there of high Treason. Upon these pro­ceedings was the Act of Attainder drawne up, wherein the Clause afore mentioned was inserted, viz. That this Act of Attainder should be no president for the future, [Page 74] which I conceive must be intended either in respect of the Triall or Judgement it selfe; The Act or Judgement in­cludes the triall or proceedings in law. and although the clause should men­tion the Act, and not the proceedings there­upon, it is all one as if it had in sence of Law, for the proceedings and the triall are included and involved in the Judgement, and therefore the Act of Attainder or Judgement comprehends all depending thereupon. Reverse a Judgement at Law, you reverse all the proceedings without any mention of them, therefore they are in­cluded. Now the triall was unusuall, for in the House of Commons, he was tried in a Parliamentary way in the House of Peeres by the Common Law in Westminster Hall. Further, this Clause might have a retrospect unto the Act or Judgement, for the Judge­ment was unusuall, at least not necessary in this respect, he was by the positive Lawes proceeded against, Judgement might have been given against him by the Parliament; which Judgement should have been en­tred into the Rolls of Parliament, Vnto a Judge­ment by Statute all men are privie. accor­ding to the course of other Courts of Ju­stice, but to be attainted by Act this was more full and satisfactory, both to the offender, and to others in this respect, that all men are privie and consenting unto this Judgement either personally or represen­tatively, and therefore all men must rest satisfied: but to returne to our former Discourse, and not to detaine you any lon­ger with mine owne fancy, as some may say, This I will confidently averre, he was [Page 75] by the Law positive adjudged a Traitor for leavying warre in the Kingdome of Jreland, His person here subject for offen­ding against a positive law, viz. 25. E. 3. as also for offending against a Statute there made, viz. 2 [...]. H. 6. and his possessions in both Kingdomes cleare liable by both statutes. The Act of 25. E. 3. is in force in Ireland, either by vertue of Poynings law, or else by the ancient com­mon law of England which is in force in Ireland 25 E. 3. is b t of the an­cient common law declaratory. C [...]m. [...]lees of the Crowne, Tit. Treason. Treason against the law. against the very Law it selfe; for he that goeth about to alter the Law or Governe­ment, or to oppose it in any hostile or compulsary way, as it was proved mani­festly he did, is a Traitor, within 25. E. 3. and leavieth warre against our Soveraigne Lord the King, as the words of that Statute are for leavying warre against the Person of the King, is included in the first branch of the Act, of compassing or imagining the Kings death, as the learned know; there­fore this Clause of leavying warre against the King, if taken in the literall sence, were not so necessary, but because of some great authority in this particular which I have seene; I will conclude, that if taken in the sence against the the Person of the King, yet it is also and most principally a leavying warre against the Lawes and Go­vernment; a secret which ignorant people know not, for they thinke no Treason can be but against the Person of the King; now least any man being impeached of High Treason, should claime the benefit of this Act, which peradventure would prove in­convenient; I conceive this clause for some of these reasons added unto this Act. But some will say, That his ignorance of the offence, Object. and his good intentions to his Majesty and the State were a sufficient Apology, the which he confirmed by his Speech unto the people at his death.

I answer, If it were so admitted, Sol. yet [Page 76] ignoruntia juris non excusat, yea the meanest crime of the meanest person is not hereby extenuated in Law, but this was a crime of an eminent person, the highest offence in Law, and of dangerous consequence.

All Courts of Justice have their Seales, viz. C. B. Ble [...]oy, this hath [...]one but this Ergo.There are some Rights of Parliament yet behind, as namely, the attendance of the great Seale necessarily upon this Court, their claime and disposition likewise of the Militia, the Navy, Forts, and Magazins for the defence of the Kingdom; as also of the great Offices of the Realme, all these, nor any of them being the Kings unboubted right, Object. as he claimeth them. For to begin with the Militia, which (some may say, hath been formerly debated) in shewing his Majesties raising of Armies illegall and unwarrantable, and therefore here it will be but repitition.

Sol.I answer, if it were so, yet this being a matter now controverted of so high conse­quence, it should not seeme ungratefull; Que repetita placent, decies repetita place­bunt, but to dispossesse you of this fancy, you shall finde it not so, the discourse of it here you will finde in a larger notion (though very briefe) then before it was spoken of, as having in the former debate relation onely to the positive Lawes, viz, how those that were bound by Tenure or Contract to Military services could be in­forced out of their Shires, Th [...] Commission of Array useth this power, Vi. ante. which are but a paucity, in respect of those which are not imprest by a more absolute power, being neither by Tenure nor Contract bound [Page 77] thereunto, and this power hath been made use of both by King and Parliament, at this time most especially; therefore here I will speake of the Militia of the Kingdome in generall, comprising those that are bound by Tenure, as others also; and shew you in whom the disposition of the other branch of the Militia, No positive law vests the Militia of the Kingdome in the King per­sonally. Vi. ante. Two branches of the Militia ex­traordinary, ab­solut [...] ordinary, or limited by the positive law. viz. that which is limited by the positive Lawes, is vested and setled by Law, which (I take it) is not so plainely expressed before, The Militia therefore is apparent to be of a two-fold consideration, extraordinary and absolute, or more generall, ordinary and limited by the positive Lawes. Object. But some may say, This will not be proper discourse here, the debate of this extraordinary and absolute Power of the Militia, it being out of the compasse of the positive Lawes, which I have pro­mised should be the onely square and rule of this discourse. Sol. But you will finde it here necessary to speake somewhat of this, as giving great light in this other branch of the Militia; and withall it is a rule in Law, that the best way to expound the meaning of any Law, Two parts of every statute or law remediall. is to shew you what the Law was before, for by that meanes you shall come to understand the two maine parts of every Law remediall. The mischiefe usual­ly mentioned in the Preamble, and the pur­view or enacting part specified in the body of the Act.

It is conspicuous therefore enough, that this absolute and more generall power of the Militia was alwaies in the Parliament, [Page 78] onely what was communicated by Parlia­ment, Ratio. Why the absolute power of the Militia in Parliament, and not in the King, or any subordi­nate to him. be it to the King or his subordinate Ministers, was alwaies by positive Lawes or Statutes limited; yea, to what purpose had been the many positive Lawes concer­ning the Militia, viz. That none shall be compelled otherwise then the positive Lawes, Nota. prescribed to Military services, if this more absolute and supreme power of the Militia had rested still in the King; What had these Statutes enacted? Verily, even nothing at all: had they limited and restrained all persons without exception, Two estates of one thing, viz. absolute and li­mited in law re­pugnant and contradictory. the King as well as his Ministers, and yet had this unlimited power remained in the Regall Authority, the King should have had in one right and capacity two Estates or Powers of one and the selfe same thing, viz. of the Militia absolute and limited, a principle so repugnant and contradictory, that even common sence rejecteth it; it is as if one should say, A man is restrained of his full liberty, and yet may make excursi­ons abroad wheresoever he pleaseth.

Further, if this absolute power of t [...]e Militia of this Kingdome had been an inci­dent unto the Royall prerogative, No statute men­tion any thing in this nature, vi [...]. guest. or debate. would his Majesty and his Royall Predecessours from time to time have divested themselves of this Royall Robe, and have yeelded to have been limited by the positive Lawes touching the Militia? yea, without any contradiction or reluctation, for ought that is apparent, if this absolute power of the Militia had been his undoubt [...]d Right and [Page 79] Prerogative? It is a thing so unquestionable it needs no further answer.

But that which must stop all contradi­ction, Nota. or cavillation rather in this particu­lar is; That the King himselfe in none of his printed Declarations claimeth that ab­solute power in the Militia, but groundeth his Commission of Array, Vi. an [...]e. as also all other his proceedings in this nature upon the po­sitive Lawes, viz. upon the Statute of 5. Both these Sta­tutes repealed, the common law only in force. H. 4 formerly at large spoken of; by which Sta­tute if it were in force at this day he had no power in the Militia, but as the Statute of Winchester had prescribed and limited, as formerly you have heard. Which Statute of Winchester would in no sort warrant this illegall Commission of Array, grounded up­on 5 H. 4. as I take it cleare.

To give you an instance materiall by this Commission of Array, they may be forced out of their Shires, but not by Winchester, as I conceive, unlesse in case of suddaine comming in to this Land of enemies accor­ding to the Common Law, for Winchester in this without question affirmeth the Com­mon Law, Nota. though it doth also inlarge the Common Law in the assize or proporti­on of Arms, making all estates both of lands and goods liable to the Assize there prescri­bed. By Winchester the assize is certaine, Commissions of the King grounded upon Winchester formerly, for Arraying men ac­cording to the statute; no Commission at this day warrantable upon this statute, nor any other positive law. If any Regall Commission for Arraying men warrantable at this day, it must be only upon the [...]ncient common law recited in stat. 1. E. 3. ca. 5 relating only to Tenures. Nota. no [Page 80] latitude to Commissioners to assesse whom or how they please: But by this Commission of Array no certaine. Assize of Armes, but left to the discretion of Commissioners. But to returne to our former discourse, and to adde one thing more; Generall lawes Pro bono publico binde the King, though not ex­presly named, W. 2. 13. E. 1. Also the King by assenting to these lawes, seemeth implicitely to acknowledge it in Parliament. If this absolute power in the Militia had been his Majesties ancient and undoubted Right, yet it is cleare he had been debarred and foreclosed thereof by these positive Lawes, yea and constant usage in all times hath manifested this as an undoubted truth, for Commissi­ons Regall have for the most part issued forth upon these positive Lawes, and where they have been unwarrantable, they have been in all ages complained of in Parlia­ment, and rectified. Hence I conceive it is apparent, Ratio. Why the generall or abso­lute Power of the Militia in Parliament, a Parte ante, viz. before the posi­tive lawes touch­ing the Militia. Et nota. that either a Parte ante, a parte post, this absolute or generall power in the Militia is vested in the Parliament, but I rather am perswaded to conceive it was vested in Parliament a Parte ante, viz, even before any of these positive Lawes, other­wise so great a Prerogative (if it had been justly pertaining to the Regall Dignity, would not have been so easily parted withall. The positive or the Militia limi­ted by the positive lawes. The anci­ent common law is the onely law positive now in force touching this Militia, for Winchester is repealed. Then we will leave this branch of the Militia as pertaining to the high Court of Parliament onely, and we will come to the other branch of the Militia, viz. that which is limited by the positive Lawes, viz. the ancient Common Law, that being onely in force at this day. For this Branch of the Militia therefore, and the constituting of the high Sheriffe of the County, who hath [Page 81] the power of this Militia, so farre as it hath relation to the positive Law, yea and in some manner participating also of that great and absolute power, The positive Militia in the Sheriffe, yea and some shadow of the absolute or generall Militia in him also. for he may compell any man within the County, but no fur­ther for the preservation of the peace there­of, to attend the defence thereof, even those that are neither bound by Tenure nor Contract, although the King hath used to constitute and appoint him by Patent. This is but usage clearely for what is not warranted by 9 E. 2 De vicecomitatibus is but usage, Nota. therefore the election of such a number by the Judges in the Exchequer, the presenting them to the King, and his election of one of them, I leave unwarran­ted by this Law. Indeed the Letters Pa­tents granted by the King unto this great Officer of his Office, I take it are warranted by this Statute Tacitè, or by way of inci­dence or dependancy, for all great Offices are to be authorized under the great Seale by Law.

But peradventure it may be objected, Object. that Sir Edw. Coke saith in his Magna Charta, f. 55. That the persons chosen by the Judges in the Exchequer, and the Kings election of one of them, are warranted by some Statute in that behalfe, and not by bare usage onely.

To which I answer, Sol. That it is of great weight, because it was the opinion of the Judges of England in H. the 6. his time; but note that Sir Edw. Coke delivereth no opinion upon it himselfe, neither is this [Page 82] Statute mentioned, either by the Judges at that time, nor by Sir Edward himselfe, but onely so left; but certainly the Statute intended must be 9 E. 2. De vicecomi [...]: And it may further be said, That it is a rule of Law, that Optimus legum interpres es [...] consuetudo, and therefore this constant usage since the said Statute is an interpretation of it. But what if we should grant this, you are still never the nearer the purpose, The Militia po­sitive in whom by law vested. for here is onely a bare nomination or election of the Sheriffe, no right of the Militia. Concerning therefore the election of the high Sheriffe of the County, there is no negative Law in point to take it from the Subject, and anciently I finde clearely it did belong unto the Free-holders of the County by Statute, and the Statute of 9. E. 2. 28 E. 1. ca. 8, of election of the Sheriffe in the Ex­chequer, as it is now used is but onely affirmative.

Object. But that I may not subject my selfe unto just censure, I will anticipate and prevent what may be objected by the adverse part. That these these two Statutes, viz. of 28. E. 1. commonly called by Legists Articuli supra Chartas, ca. 8. by which the Subjects right in the Militia, and the election of the Sheriffe the minister of the Militia appears, and the Statute of 9. E. 2. before named are the one contrary to the other in matter, and therefore within the rul [...] of Leges poste­riores, priores contrarias abrogant, although they be both in the affirmative.

To which I answer, that they are not [Page 83] contrary in matter, they differ onely in circumstance, viz. Designation of other persons difference in cir­cumstance no contrariety in matter. C [...]. 11. Re. Do [...] Fosters Case. Stamfords prerogative. f. 69. [...]. Two statutes af­firmatively au­tho [...]e severall persons; both statutes effectual. Cr [...]. Jurisdi­ction of Courts 200. [...]. saith, That 32 H. 8. taketh away, 8. H. 6. It may be peradventure in­tended with this difference. 28 E. 1. 9 E. 2. designe severall persons to elect the Sheriffe, both statutes shall be in force by law. Designation of the Per­sons that are to elect the Sheriffe, and the rule of Law is, That the designation of one person or persons in an Act of Parlia­ment shall not exclude another person or persons, which had authority to doe the same thing by an Act precedent, as to put you but one case instead of many, by 8. H. 6. ca. 16. The C [...]ancellour, Treasurer, and other Officers have power to demise Lands and Tenements; afterwards 32. H. 8. ca. 46. gives authority to the Master of the Court of Wards, with the advise of one of the Counsell of the said Court to demise the said Lands and Tenements mentioned in the former Statute, yet this doth not take away the Statute of 8 H. 6. although that this last Act designe other persons; for if before any Lease made by the Master of the Wards, the Chancellour and Treasurer make one according to the Statute. 8 H. 6. then the Master of the Wards cannot de­mise, and so if the Master of the Wards demiseth first, then the Chancellour and Treasurer cannot demise by 8 H. 6. Many more cases I might here insert to cleare this particular, come we then to our two Sta­tutes, the Statute of 28 E. [...]. designes the Free-holders of the County to chuse their Sheriffe. The Statute of 9 E. 2. Not materiall if 9 E. 2. nullifie 28 E. 1. as you shall see here­after. appointeth the Judges in the Exchequer to chuse him Severall Acts affirmative designe severall persons to elect the Sheriffe, both Statutes shall stand, saith the Law, if the one doth [Page 84] elect according to one Statute, the others are fore-closed, In statutes intro­ductive the de­signation of the [...]son, matter of [...]stance not [...]umstance. and so è contrario, and the rule is true. The designation of one person is the exclusion of another in Statutes, which create a new Law, but neither of these Sta­tutes of 28 E. 1. or 9 E. 2. create any new Law concerning the Militia, but in the designation of the persons which are to chuse the Militia; this last Statute differs from the first, therefore we may safely con­clude, Ʋbi lex non distinguit, nec nos distin­guere debemus.

I have searched all the comers of my heart to avoid Hypocrisie, and of my un­derstanding to avoid ignorance, and I can­not finde but these cases are alike in Law; Negative words alter the law. therefore the 28. of E. is still in force and not abrogated. Further, if the words of this Law had been that they should have been chosen in the Exchequer by the Judges, and by no other persons, or, and not elsewhere, then peradventure these ne­gative words had utterly abrogated the first Statute. Many Cases might likewise be remembred to prove this; but in our Sta­tute there are no words but affirmative on­ly, therefore no question upon this rule in Law, so in the end you see these two Sta­tutes are not the one contrary to the other. Also there is another reason which makes for us, and that is that 9 E. 2. is onely affir­mative, as you have heard, and by impli­cation must nullifie 28 E. 1. and that can­not be as I conceive.

It is a high and great right of the Subjects [Page 85] this of the Militia, it is one of the chiefest flowers of the Garland of their Liberties, it cannot be divested out of the Kingdome but by expresse words; The Kingdoms right cannot passe by impli­cation. it is like unto Jus regale, or a Royalty of the Crowne, which cannot passe by implication as the Sages of the Law know, for it is the Kingdomes case, and no particular Subjects case and right, One Act repea­leth not an [...]ther by word [...] gene­rall and implicite and therefore from all cases in Law that can be opposed differing, 10 R. 2. ca. 5. doth not take away 13 E. 1. commonly called the Statute of Donis conditionalibus because the words are generall and impli­cite, Statutes made by the venerable pre­sence of three hundred men or more, equall to the Senate of Rome in wisedome shall not be disannulled by such ambiguous constru­ [...]ions, but I will leave this to the judge­ment of the learned. F [...]rther, if the dispo­sition of this branch of the Militia were the Kings Right by this Statute before mentio­ned, If the Militia by the positive lawes limi­ted were vested in the King, yet he is not the sole pro­prietor, but in­trusted with it Sub modo, a [...] the positive law hath appointed. yet he it not the sole propr [...]etor there­of, but intrusted Sub modo to dispose of it as the Law hath appointed; and you see in what manner the Law hath setled it by this former discourse. The King cannot com­mand the Militia, or raise an Army either by Sea or Land, without his high Court of Parliament approve of the same, they can­not be forced out of their Shires, but in case of suddaine comming into this Land of strange enemies by the power of the King, or by his legall authority.

But to lay aside all other weapon of de­fence and argument, Argument by admittance. and to close with the [Page 86] adverse part upon this very Law of 9 E. 2. and the sence of Law upon this Act, and admitting 9 E. 2. to nullifie 28. E. 1. which yet we doe nor grant for a positive truth by admittance of it Argumenti gratia, onely we will debate this Statute of 9 E. 2. and open it plainely to every capacity, whereby it shall appeare here is no harbour for the Militia Royall, it will prove but Statio malificae carinis, an unsafe refuge.

The words of the Statute which they s [...]r­mise vest the Militia in the King are these, That the Sheriffes shall be chosen in every County by the Chancellour, Treasurer, Barons of the Exchequer, or chiefe Baron, as another Statute hath it, or by the Justices by one Statute, and by another Statute by the chiefe Justices of one Bench, and of the other; Parum differunt que re concordant: But to our purpose, In whom is the Militia setled by this Statute? It is apparent not in the King, but in the Sheriffe elected by the Judges, who are sworne as well to the Kingdome and People as to the King, By 9 E. 2. a hare nomination no right of the Militia setled in any. as appeareth by their Oath. But yet further, In what right hath the Sheriffe the Militia of the County? I answer, Here is no right of the Militia vested in any by this Statute, onely a bare nomination, then the right and power of the Militia rests where it did before by Law; and that if the very letter or sence of this Statute be urged, the right of the Militia is not in the King. Object. Why then a further question ariseth upon this Act, in whom is the right of the Militia, [Page 87] or in whom was it before this Statute, since this Law giveth no right to any?

I answer, Sol. The Sheriffe had the possessi­on of the Militia, The Sheriffe of the Militia pos­sessour by 9 E. 2. the law and Courts of justice Cestuy que use. the Law was Cestuy que use, that is to say, had the right and interest of the same; the Sheriffe had the disposi­tion of it for the use, benefit, end behoofe of the Law, for that you shall see plaine enough, for the words of the Law are to this purpose, That the Sheriffe is to dis­pose of the Militia to preserve the peace of the County, to suppresse all Riots, Insur­rections in disturbance of the peace, to execute the Judgements and Injunctions of the Law in the Courts of Justice. What is the peace of the County, but the Law of the County, or rather the fruit and effect of the Law? The peace of the County the law of the County, or rather the fruit and effect of the law. Due observance and execution of the Law is the preservation of the Peace; whereas on the contrary, violation of the Lawes brings Warres and Division with it. Not a word here but that the Law is Ʋsu fructuarius of the Militia, hath the right and power of it, the Sheriffe the dis­position as Minister and Servant of the Law. If it be objected that the Law saith, That to preserve the Kings Peace the Sheriffe hath the disposition of the Militia. The Kings peace the Kings lawes, or the fruit and effect of the law. That is true, and yet it is nothing to prove the right of the Militia in the King, for the Kings Peace is meant, or the fruit and effect of the Lawes, by which Lawes the King injoyeth his Peace as well as the Subject, so that still you doe but labour in vaine. The Law still hath the right of the Militia, also the [Page 88] Courts of Justice, especially the high Court of Parliament, where the law resteth as in the Center.

Vsage Regall of no force in the Militia. Vi. infra.For Usage, and the Kings disposition of the Militia De facto, though it were since the Conquest, that is not materiall, as you shall see presently in the debate concerning the great Offices of the Kingdome, Ʋbi eadem ratio idem jus.

The Militia of the Navie.As touching the Navy Royall, the Forts and Magazines, it is apparent, that either they are included as parcell of the Militia of the Kingdome, or are as appendants thereunto, and therefore as to them, Nihil erit jam dictum, quod non dictum sit prius. But yet to say something of them though but repitition. The Navie, that is to say, the Ships are things in their nature transitory in Law, they may have existence or not, Diversis temporibus as occasion requireth, and so in the eye of the Law are not things so considerable as the Militia of the King­dome, which is a thing permanent and abi­ding, and shall have a constant existence so long as England shall continue a Nation of people; and therefore the Law hath not taken such speciall care for this, The Militia of the Navie de­pends upon the Militia of the Land. as for the Militia But to give you a full answer, and not to keepe you in suspence: What is the Navie Royall without the Militia? How are the Seas defended unlesse the Militia of the Land be designed for that purpose. Goodly materialls without any hand to move them for the publike service, fit for prospect onely, not for use; therefore [Page 89] you cannot consider them without the Militia of the Land to guard them, The Navie with­out the Militia of the land to guard it; not con­siderable. unlesse they be furnished with men for publike im­ployment. Why then still all depends up­on the Militia of the Land, and you see by the former discourse how that is setled, the King cannot dispose of it, otherwise then the Law hath appointed it; nay it seemeth that the positive Militia is not in him personally, but subordinately in his Ministers, and so it is said in Law to be in the King. Thus you see an end of this par­ticular, the King may build Ships but he cannot make them, otherwise then as a livelesse structure unusefull without the Militia.

But to inlarge my selfe a little further on this particular, it appeareth that the Navie, that is to say, the disposition of men, Since this Act some Ordinances for the Navie no [...] Act or statute. ne­cessary for that service, is not in the King but Parliament, who made a temporary Act or Statute since the Parliament began, enabling the Lord Admirall for the time being, to imprest, raise, and leavie such number of men necessary for the service of the Navie, Ratio, why the Militia of the Navie must rest in the power of Parliament. Et nota. as shall be requisite for that expedition. Hence it may plainly be col­lected, that since this Act is expired the Militia for the Navie must of necessity rest in the power of Parliament, since the King by implicite consent in enacting this Law so conceived, for otherwise he would not sure have assented unto such an Act, so derogatory to his Regality, if the Law had not been so at that time, but he would [Page 90] have authorized the Lord Admirall by Commission under the great Seale, and so no Act of Parliament had been necessary.

Object. Further, if any man shall object and say, That the power of the Militia for the Navie was in the King before this Act, and that was the cause of making this statute but tem­porary, which also being expired, the Mi­litia of the Navie is revested in the King againe.

Sol. The answer of this will be but Actum peragere, the Militia of the Navie depen­ding upon the Militia of the Land before this Act, and therefore the Militia of the Land debated as formerly you have heard at large, both that generall and absolute of the Militia, as also that which is limited by the positive lawes, there needs no fur­ther answer.

The Militia of the Navie in law the land militia.Further, it is evident to me upon this very Act without any retrospect, to what hath been formerly spoken, that the Militia of the Land, the great matter now controver­ted, must of necessity rest in Parliament, for it is parcell of the Militia of the King­dome, Sea and land incorporated in point of domi­nion, if the mi­litia of the sea pertaine to the Parliament, so must also the militia of the land, unlesse you divide the power of the militia. the Militia of the Sea is also the Mi­litia of the Kingdome, yea of the Land it selfe, for the Sea and Land are incorpora­ted by Law in point of Dominion, and made one body subject to one head. The Militia therefore of the Kingdome, and the Militia of the Land are all one in Law, and in the Militia of the Kingdome you must include the Militia of the Navie, since the kingdom in judgement of law inclu­deth [Page 91] both Sea and Land; Or otherwise, if we shall abandon all reason in the Expo­sition of this Statute it must at least be granted, Nota. Division of the power of the militia dangerous to government. that the Militia of the Navie is in the power of the Parliament, even by the implicite judgement of the King and his great Counsell, and admit a fraction or division of this great power so dangerous to Government, and tending much to the weakening and enervating the great strength of this Kingdom, I mean the Militia thereof, and be occasion of perpetuall intestine wars in this Nation; a position so inconsistent with Government, and dishonourable to the Wisedome of this State, that I thinke there needs no further confutation of it.

The Forts and Magazines surely are as attendants and adjuncts unto the Militia, The militia of the Forts and Castles. and that common reason teacheth the one to secure the Ammunition pertaining to the Militia, and as a receptacle for the same, commonly called the Store-houses for Armes, the other to imploy the Militia in for the defence of the Land against the enemy, Rati [...], why the Forts and Castles d [...]fensible per­taine not to the King. for surely the Forts and Castles de­fensible belong not unto the King in right for one speciall reason, because if they should belong unto the King, then you must grant him a power and right in the Militia, to be imployed in the service of these Forts and Castles, for to what pur­pose hath the King these if he cannot com­mand the Militia of the Kingdome to de­fend them; they are then in judgement of Law and reason houses or Princely Pallaces [Page 92] onely, nor Forts or Castles, so that you see in conclusion by Law and Reason we are come to this. The right and power of the Militia of the Kingdome rules all Forts, Ships, Navie, Magazines, Castles, all de­pend upon this; therefore I hope I have spo­ken of these particulars sufficiently.

Object. It may be objected, that Sir Edw. Coke saith in his Institutes upon Littleton, That no man can build a Castle defensible or of Military strength without leave of the King; hence it may be inferred, Sol. the King may build, and consequently hold such a Castle or place of strength; The ancient Common Law for the land Militia rules the Militia for the Forts and Castles but what of this, he hath nothing to doe with the Mi­litia, this notwithstanding. And if it should be granted otherwise, yet he cannot defend it with any other Militia then of those persons that are hereunto especially bound by Tenure or Contract, neither can any be forced out of their Shires contrary to the Law, to defend this place of strength, or Castle; also that the King may build and hold a Castle defencible, may thus be in­tended.

The Sheriffes possession the Kings possession of any Castle or Fort.The Sheriffe hath his authority from the King, viz. by Statute, 9 E. 2. unto which the King hath assented, to defend any Ca­stle defencible with the Militia of the County, therefore if the Sheriffe, or any such like subordinate authority from the King hold a Castle defenceable, it is in judgement and speech of Law the Kings possession of the same, but of this suffi­cient.

For the great Offices The great Of­fices. of the Kingdome, the disposition of them did anciently belong unto the Parliament as their rights, and that Master Lambard a learned Lawyer in his Archeion of the Courts of Justice testifieth, whose words are these; The great Of­fices anciently pertaining to the Parliament. That the Keeper of the great Seale was wont to be elected by Authority of Parliament; and he saith further, That he had read, that Ralph Ne­vill Bishop of Chichester, being Chancellour to King H. 3. being Commanded, refused to yeeld up his Seale unto the King when he required it, affirming that as he had re­ceived it by the Counsell of the Realme, so he would not without like warrant re­signe it againe. And in the daies of the same King, it was told him by all his Lords spi­rituall and temporall, That of ancient time the creation and disposition of the chiefe Justice, the Chancellour and Trea­surer belonged to the Parliament. Thus farre Mr. Lambard, Dr. Cowell also in his Booke, called The Interpreter, whom I nominate at this time as a Royalist in this, yet he citeth a President in the time of King H. the 6. who directing his privie Seale to Richard Earle of Warwick, thereby to dis­charge him of the Captaine-ship of Callis, the Earle refused to obey, and continued forth the said Office, because he received it by Parliament; and the inference of Co­well hereupon is false, that either the King must be above his positive Lawes, or else he is no absolute King; for he is an absolute King, though not above the Lawes, for [Page 94] his Government were then meere Tyranny; Vid. D [...]vant. f. 16. 6. also the Kings of this Nation are nor in that sence absolute Monarchies, for this is a mixt Government, partly Politicall, partly Monarchicall, as that worthy Knight Sir Thomas Smith, in his Common Wealth of Eng­land affirmeth, and this I have remembred before. Further, Sir Edward Coke in his Magna Charta, f. 558, 559. saith, That an­ciently Offices either for the preservation of the Peace, or execution of Justice, be­cause they concerned all the Subjects of the County were not disposed of by the King, but by the Free-holders of the County, chosen in every severall Shire by the Kings Writ; now if it were so for the publke Of­fices of the County, the same Law and rea­son telleth you, that it must be so for the publike Offices of the Kingdome, either it must rest in the people, or their representa­tive Body.

Object. But it may be objected, That Sir Edw. Coke saith in the sam [...] place, that the Sta­tute before named of the 28 E. 1. is altered by 9 E. 2. and so this Office of the She­riffe being a publikt Office for the preser­vation of the Peace: and execution of Ju­stice also is not in the Subject, or their repre­sentative Body.

Sol. To which I answer shortly, because it hath been formerly debated. (Altered) not abrogated or [...]ullified. That Sir Ed. Coke is thus to be intended, that it is altered partly as to the election of the Sheriffe in the Exchequer, if the Judges pursue the same Statute, and the Free holders of the [Page 95] County doe not elect before them, and so that authority is good Law. We must make such interpretation that every learned mans judgement may be honourably esteemed and be effectuall. It likewise appeareth by the same Author, that anciently the Con­servators of the Peace, or Justices of the Peace were chosen by the People, and so are many Offices at this day, the election of the Officers is by the Free-holders or people, the Kings Writ issuing forth first for that purpose. Vsage of no forc [...] against a statute or judiciall re­cord. Now what Law hath ta­ken away those from the people, or their representative Body? Verily none that I know, no act Judiciall, or Record, whereby the right of the Kingdome is expresly given away, or if this did appeare, No statute gives away the Sub­jects right ex­presly in the dis­position of great Office, or of the militia. or if it should be granted that usage recorded in the Kings Case were sufficient, yet in these par­ticulars it will not give a right unto the King; and if he hath time out of minde disposed of them, yet this will not availe, if by any matter of Record, the right of the subject appeare, as it doth by Statute Law before remembred, and by legall authority, Nota. then usage is invalid as the learned in the Lawes know. The Act of 28 E. 1. settles the Militia in the subject, as you have heard formerly; here the right of the subject ap­peares, the Forts, Navie, Castles, and Ma­gazines depend all upon the Militia, either the absolute or generall power of the Mi­litia, or the Militia positive, or regulated by the positive Lawes; both which are by Law vested in the People, or the represen­tative [Page 96] Body the Parliament, as you have heard formerly. The great Offices of the Kingdome appeare by learned and legall authority, afore mentioned in the Subject, and their representative Body, both in right and in disposition. What shall I say more, if this be not sufficient to make the Subjects right cleare in this particular. Prescription of no force against [...] statute. Then al­though the King hath by usage almost gai­ned a perpetuity in them, yet this will not serve, no prescription or use will be of force against a Statute, or judiciall Record, for that is proofe to the contrary, as the Law saith. And the Kings Case is all one with the Subjects in this; Regall use is of no force against a Statute or judiciall Re­cord, for as the rule of Law is true, Nullum tempus occurrit Regi, prescription is not good against the King in many Cases, so it is as true, Nullum tempus occurrit legi, no us [...]ge or prescription is of any effect either in the Kings Case, or Subject against the Law, appearing by Statute or judiciall Record; and I hope no man will say, but that the Rolls of Parliament are judiciall Records, Vsage of no force against claimes and interrup­tions. besides our legall Annals or Bookes. Further, if usage shauld be admit­ted, yet here have been divers clamours and interruptions of Parliament, yea, dis­positions by them of those great Offices, and those other particulars, and then ne­cessarily usage is not of force, as the Law saith, for the Parliament claimes unto the great Offices of the Kingdome, yea their disposition of them from time to time I have [Page 97] spoken of before; as also of the Subjects disposition of the Militia, Vsage gaines no inheritance or right of claime or interruption or their repre­sentative Body, for it cannot appeare that the King hath by disposition of them time out of minde gained any inheritance in them, in the right (as we say) but that there have been Claimes and disturbances by the Subject, or their representative Body, and then usage necessarily is of no force. Object. Before I conclude this particular, I will answer one Objection that happily may be made touching the Militia, and that is this; Pleas of the Crowne, f. 9. that Sir Edw. Coke saith, That no man can leavie Warre within the Realme without authority from the King, for to him it onely belongeth.

Sol. I answer, because the authority is great, that his legall or politick capacity may be very well here intended, Authority from the King intend [...] his legall or po­litick capacity, not his personall or naturall. and not his perso­nall, and so the authority of every Court of Justice is the Kings authority, the words (De mandato nostro) in the Writ of Melius inquirendum, upon a former Office defective, are intended not the Kings Personall Com­mand, but his Command by Writ, issuing out of a Court of Justice; so the authority of the King is in this place meant his legall authority, not his Personall, which every Court of Justice specially upon Record is invested withall. In a literall sence the She­riffes a [...]thority is the Kings authority. Also the subordinate au­thority of the Sheriffe, as also of every Court of Justice is the Kings authority even in the literall sence, for the Sheriffe and Judges of the Court of Justice are authori­zed by [...]he Kings Letters Patents.

Also they that have their Authority by Acts of Parliament, as the Sheriffe hath, have their authority from the King, No man &c. purport thus much, no man of hi [...] own private authority. Legall authority the Kings au­thority. for are not all Acts perfected and confirmed with the Royall assent? So that these words be­fore specified, viz. no man, &c. purport plainly thus much; No man of his owne private authority without legall authority which is the Kings imediate authority, can leavie War within this Realme. Nota.

If you should make other construction, you nullifie the positive Lawes, and even the legal course of Justice and Government. So that we may safely conclude (I hope) upon the premisses, that the Subjects right, and consequently of their representative Body to dispose of the Militia, and of the great Offices of the Kingdome remaineth yet undoubted even at this day. These things have been judiciously debated, and at large by a learned gentleman very well knowne, Note that all the statutes touching this high point of the Militia are warily and cau­tiously penned, not one law that in expresse words or by any sound Collection, or inferences settles it in the King per­sonally, those statutes that the King make use of, and which men­tion t [...]e military service due unto the Regall Dignity, are in gene­rall termes, and may very well be with relation to the positive lawes precedent, as 11 H 7. ca. 1.5. H. 4. 1 E. 3. ca. 5. None of them can be intended of the generall or absolute power of the mi­litia, but of that part of the Militia that is by the positive lawes limited; for if otherwise, you must by such construction nullifie all the positive lawes proceed [...]ng. Nota. Vid. ante. therefore of this sufficient. You that are now learned and wise, be not se­duced with errour, pause a while and consi­der with moderation what is become of the Regall power, viz. the Kings personall [Page 99] power, such as you would have it in the Militia of this kingdome? That which the King will not part withall, no not for any time, be it to his Wife or Children, so neare and deare it is unto him, and of so high consequence as he professeth. There are but two branches of the Militia, the one generall and more absolute, the other speciall, and limited by the positive Lawes as you have heard. For the generall and more absolute power over the Militia, it is apparent to be inherent of ancient right in the high Court of Parliament onely; I thinke the premisses duly considered, no rationall man will deny it; for the other part of the Militia limited by the positive Lawes, you have heard it is vested in the Kings Ministers, the Judges and great Officers of Justice by the positive Lawes not in the King personally considered. What is then become of the great Com­mission of Array, which clearely claimeth and useth both these powers of the Militia? What are Armies of men raised by these illegall meanes? You have heard formerly in this discourse what they are, I should be sorry to repeat it.

The supreme Moderator of all things will one day Judge these exorbitancies, I will say no more; Object. There is one yet great Objection of those that are curious and hard to be satisfied, it is somewhat darke and Enigmaticall to the ignorant, and that is, That Armes are taken up against the King by the Parliament, they leavie War [Page 100] against his Person, an Act in it selfe impious, and by the Divine or Humane Law in no wise warranted. Sol. To which I answer, That this Allegation is false and untrue, there is no force or violence offered, or intended to be offered against the person of the King; we conceive his person onely free from the Sword; By the Divine law the regall person differen­ced from the regall power. but if you take his person for his power raised by him coagmenta­tive, there we differ from you, for by the Law Divine, whether his person and power raised by him illegally be together con­founded and not distinguished; or whether Tyranny or abused Authority shall be said to be the Ordinance of God, and so not to be disobeyed; I will not meddle in the decision thereof, though I take it cleare they shall not; for, goe to the very Etymo­logy of the word (Ordinance) mentioned frequently in the Scriptures of God, and so much insisted upon by the other part, that it ought not to be resisted; it is plaine, it is derived (Ab ordine) from order, wise­dome, and judgement, the shadowes of the Divine essence which is an eternall Law, of admirable wisedome even to it selfe, and is the Primum mobile, and originall of all Or­der and Law to the Creature. Now in Ty­ranny and abused Authority there is no­thing but folly and madnesse, as I may so say, the authours of disorder and confusion; and surely if the Lawes of man be called Ordinances for this reason before mentio­ned, What shall we thinke of the Law of God? Whatsoever is by this Law ap­pointed [Page 101] is wisedome and judgement in the abstract. 1 Sam ca. 8. That place of Scripture which you wrest by mis-interpretation for the purpo­ses warrants no such matter. This shall be the manner of the Kings, saith Samuel to the people, They shall take your Sonnes and your Daughters, they shall take your Fields, your Vineyards, and give them to their servants, (Render the words) viz. this shall be the right of the Kings. &c. From this place of Scripture make you Tyranny the right of Kings (for so some of you tender the words) and so Ex consequenti the Ordinance of God is, Mos Regis, jus Regis; Is it the right of Kings because the Act of Kings? then Murther, Adultery, &c. are the right of Kings, and the Ordinance of God; so God himselfe is made the Au­thor of all wickednesse, a most impious and detestable opinion. Yea, doth not the practice of the Kings of Israell manifest the same? Did Ahab take away Naboths Vine­yard as his right without any further pro­ceedings? Did he not by pretence and co­lour of Law take away his life and Vine­yard? Did he not suborne Witnesses a­gainst him? This man blasphemeth God, and the King was he not much perplexed & troubled in minde at Naboths deniall? All these things surely had not been if it had been lawfull for Ahab to have taken his Vineyard from him; yea, what saith God unto him for this? Hast thou killed, and also taken possession? Is this Divine appro­bation? Are either of these Acts allow­ed, or not plainly reproved? hast thou taken possession implyeth clearely, that Ahab taking Naboths Vineyard was not [Page 102] Gods Ordinance or Law, but the wicked abuse of Divine authority. Further, I con­ceive upon the Acts of David and Elisha, mentioned in the Scriptures, it is lawfull to resist Tiranny and abused authority; yea, that it is lawfull to oppose the Regall po­wer, Distinction of the regall person and the regall power by the law of this Realme. though not the Regall Person; but to leave these things to those that are learned in Theology, we will search a little the Lawes of the Kingdom; Doe not our Lawes make the same distinction, betweene any power il [...]egally raised by the King, and his Person? May not the one be lawfully re­sisted, not the other? Hath not the Law appointed the Militia of the Kingdome to suppresse any Ryots, illegall Assemblies, yea, though commanded by the King? I suppose that may be made a parent enough, for put the case that numbers of people, being Insidiatores viarum & agrorum de­populatores; gaine the Person of the King, yea his protection under the great Seale: Object. shall not the Magistrates and Ministers of the Law execute the Law against these per­sons, notwithstanding the King be present with them? Sure they may and ought. But peradventure you wil say, This case is no­thing to our purpose, they that have now adheared to the King are good Subjects, no Delinquents, as your instance formerly imports. Sol. I answer, the reason of the Law is the same in both Cases, yea, they are de­linquents in both Cases that take up Armes without lawfull authority; and further, they are Traitors also, though they aide and assist the Kings person, as you may perceive [Page 103] by the former discourse; but I will exp la [...]e the Law a little further in this particular. 2 E. 3. 8. 14. E. 3. ca. 14. There are two or three severall Statutes in the Raigne of E. 3. and of other Kings of England containing these words, or to this effect; That the Judges, or the Kings Ju­stices shall not delay to doe justice and right, yea, they are commanded so to doe even in the Kings Case, notwithstanding the King by his great Seale or Privie Seale command the contrary. But we then the case, that the great Seale is sent to stay the course of Justice, and the Me [...]se [...]gers there­of be numbers of armed men, shall not the Justices oppose this illegall power? Shall they not apprehend these persons as Re­bels unto the State and Government, if they shall attempt the execution of this regall command by force or violence? nay, The King by divers statutes disabled to raise any Armies of men, or to come in any hostile manner to di­sturbe justic [...]. I conceive they are subj [...]ct unto great and severe censure (if not Capitall) for appea­ring in Armes in disturbance of justice, al­though they offer no force or violence at all, but deliver their Message to the Court. And is it not apparent that these persons shall be empeached as offenders, Con [...]ra co­ronam & dignitatem Regis, These men Trai­tors by law, though the King present with them, f [...]n any hostile way they execute his illegal command, or in­deavour the same. notwithstanding the Kings Seale yea, if the King shall be present with them, this will not a [...]ter the Case, the Judges are to execute the [...]aw in the Kings name against them, and further, to pronounce them Traitors if in forceable or hostile manner they shall endeavour to interrupt or hinder the power and autho­rity of the Law; here you see the distinction which the Law makes betwixt the Regall [Page 104] person and the regall power. Nota. The Kings per­son not crimi­nous by law, and the reason. The Kings person is subiect to no debility or imper­fection in judgement of Law, and therefore no crime or offence can be incident to his person, witnesse the Attainder of King H. 7. before he was King resolved by all the Judges, that Ipso facto by attaining the re­gall dignity, all attainders of Treason, or any other offence were purged, and that there needed not any reversall of them in Law; and this appeareth in the legall Annals of the said King, you may plain­ly perceive the Kings person uncapable of crime by the Law of this Land, his person is sacred and not to be touched with vio­lence; yea, the Law medleth not at all with his person, as being innocent of all crime, (Regall imputa­tion) as to any legall imputation; but the power of the King, Nota. in what condition it stands you may easily see. Which Henry the 7. wisely fore-seeing procured that Act, 11 H. 7. ca. 1. before mentioned, to ex­empt the attendants of his person, as also of his successors from impeachment, know­ing that by Law they might become offen­ders, although they followed his person in the Warres, and did him true and faithfull service for the defence of the King and the Land, The true reason why this act of 11 H. 7. ca. 1. was made. because his Title unto the Crowne, as the times then were, might not prove firme; for if his Title by Marriage should have failed, Nota. as even the state of Princes is sub­ject unto humane casualty, then his atten­dants in the Warres upon his Person should be in danger of judgement, as being raised [Page 105] without lawfull authority, so as by this Act if a Perkin Warbecke should attaine the re­gall dignity lawfully; (Lawfull) viz. by consent of the Realme, by authority of Par­liament. his Attendants in the Warres were by this Act free from im­peachment, if they declined not from their duty of Allegiance in this Statute mentioned, which by Law had not been so if this Act had not made this speciall provision. Now you may view plainly the Kings Person and his Power distinguished, also you may see in the exposition of this Statute formerly mentioned the same diffe­rence. (His power not so) viz. his ille­gall power. They may attend the Kings person in the Warres and yet Traitors by Law, his Person secured, his power not so. And although the King pardoneth this Offence upon this Statute, as it appeareth formerly he hath done, yet surely this is not effectu­all, for he is disabled by Act of Parliament to take benefit of this act, and therefore the King cannot inable him, as upon 31. Vi. ante. f. Eli. in case of simony, if the King present the same person simonaically to the same Bene­fice, and withall in his presentation, there is a speciall Non obstante, yet this will not availe. Also I conceive, Impeachment in the high Court of Parliament disables the Kings pardon. Nota. if he be Impeached in the high Court of Parliament upon this Act, as he may be, and not by Indictment at Common Law, then surely the Kings Pardon will not aide him. I have been somewhat more prolixe upon this Statute of 11 H. 7. ca. 1. because it is much insisted upon by the adverse part. Give me leave to impart unto you some speciall observations upon these Statutes of E. 3. before mentio­ned, [Page 106] viz. That Justice shall nor be delayed for the great or little Seale of the King. Three particulars worthy the consideration branch themselves out of these Lawes natu­rally; Note the con­trary held in Cambridge, in the Case between the Archebishop of Canterbury & Chancellor, viz. That the King sitting in Cathe­dra personally, though he might erre in circum­stance or the like, yet in point of judgement he could not erre, 11 Car. aut eo circiter. The King may erre in judgement proved by the law positive. First, That the King may erre in his judgement, his Commands may be illegall and contrary to Law. Secondly, That Ar­mies of men, or men in Armes may be rai­sed by the King without authority of Law. Thirdly, That these forces thus raised by the King are to be suppressed and punished as Delinquents to the Lawes and Govern­ment, notwithstanding the Kings Command; where you may likewise evidently perceive a difference in Law betwixt the Kings Per­son and his Power. I will debate these three part [...]culars briefly. The King may erre in his judgement, he may Command contrary to Law; yea, that his verball protestations may be otherwise in private to the Judge, in publike to the world; the Judge is not bound to beleeve his verball protestations, though under Seale, he is to execute the Law, and not to delay right and justice Note here the command of the Law, Nota. the command of the King; the command of the Law to be obeyed, not the King: note also here the supreme power of the Law before spoken of.

Object. Our Malignants cry out and say, Is not the King to be beleeved? He hath pro­tested upon the holy Sacrament to the world, that he will preserve our Religion, Lawes and Liberties, yea that he will not violate the Lawes; we are Rebells and not [Page 107] Subjects, if we should discredit the prote­stations, yea, the Oathes of our Prince.

I answer, Sol. The Judgement of a Parliament is otherwise, he may erre, his Commands may be illegall, and the Judge is not to re­gard any protestations that are otherwise, but to execute the Law.

We are good subjects notwithstanding this false aspersion; The King may raise Armies of men contrary to law. for the second parti­cular, he may raise Armies of men against Law, that you see plainly, for if he send this Message to obstruct the course of Justice by numbers of Armed men, are not these men illegally armed? For it appeares they come to oppose the Law, a great offence, by these Lawes evident enough. Here likewise appeares the truth of that Stature of 11 H. 7 afore named, so much mis-interpreted by evill Counsell about his Majesty; (such Counsell by which his Majesty is seduced in his heart, and misled, Of what Coun­sell the law ta­keth notice of. of which Counsell the Law taketh no notice at all, whilst the wisedome of the great Counsell of the King and Kingdome, so by Law deemed and determined, even in the interpretation of this Law and many others, is neglected and not regarded;) for these numbers of armed men comming with the Kings Seale to stay Justice, yea, though the King be attended by them in Armes, are capitall Offenders and Traitors, and so to be certainly pro­nounced, if they shall forceably attempt to execute this Regall Command, though the Kings person be attended by them What speakes then the Act of 11 H. 7. but what [Page 108] former Statutes have said. The Allegiance of the Subject may be declined, and yet the Kings person followed in the Warres; for the Regall Warres may be unjust upon all these Statutes, and so it is cleare to any ra­tionall man. I am sorry to unfold these hidden and secret Mysteries of the Law thus farre; for I doe unfainedly honour the King; but, Amicus Socrates & anicus Plato sed ma­gis amica veritas.

For the third particular, that the Judges are to suppresse this illegall power, I need not much trouble you withall, for other­wise the words of these Statutes were idle and illusory; Regall forces not warranted by law, are clearely to be supprest by these lawes. how could the Judge pro­ceed to Judgement, if these men that come to stay the course of Justice were not hin­dered in the execution of this illegall Com­mand. The sence of the Law to be thus up­on these Statutes, he that runneth may read. I intended no more but by way of supposi­on, but in respect that application is ne­cessary in these distracted times, Application, & Nota. and usefull in all Discourse, in regard that our oppo­sites will say, and clamour too, That none of these Lawes are in question, there is no violation of them, therefore you shall see that in our unhappy times all these afore re­cited particulars are verified.

The King doth erre in his Judgement, his Commands are contrary to Law; wit­nesse the Kings Command to apprehend the Members of the House of Commons, contrary to their Lawes and Priviledges, and to try them upon supposed Crimes else­where; [Page 109] yea his Majesty himselfe came in Person into the House of Commons, and Demanded, or Commanded delivery of them. The illegall Commission of Array so often issuing forth, a great oppression to the people, whereby he armeth thousands of men, at this day, contrary to Law and Justice, the King claiming no other power to Array his people, or Arme them by his owne Declarations in print, but which de­pends upon the Statute of 5 H. 4. before remembred, and that Statute is not in force, as you may perceive in this Treatise for­merly. What need I say more, Nota. Commissi­ons have been sent under the great Seale to Array the City of London, and other places of this Kingdome, to take up Armes against the Judges of that high Court of Parlia­ment, to hinder Justice and Judgement, as these statutes afore mention; Shall not these Judges proceed to doe right and ju­stice, these illegall Commands notwithstan­ding? Doth not the King arme the Papists contrary expresly to Law, yea, by Com­missions under seale to fight against his People, against his Parliament, when as by 3 Jacobi, ca. 5. they are to be disarmed, and to beare no Armes within this King­dome; and although the King License them, nay, 3 Jac. ca. 5. not to be dispensed withall. Command them to take up Armes as the case now is, that will not aide them, since the statute is for security of our Re­ligion, and our Lawes against the enemies thereof, the King cannot dispence with it. For the other particular, That the King [Page 110] hath raised Armies of men to execute these illegall commands, and that the Judges of the Law, and of the high Court of Parlia­ment have according to their duties upon these Statutes endeavoured these illegall forces, it is plaine enough.

Now what say you unto these things, yee that beleeve in errour and falshood? Are we still rebels and traitors in your judicious opinions? Fight we for the Lawes, and for the maintenance of them, and are not one of the actions amongst many, which might here be remembred justifiable, and yet are you the good Subjects, and we the desperate Rebells? What if you shall say, We are no men that are compelled to take up Armes, we serve the King voluntarily, we are none of the illegall Commission of Array. I answer, Incidit in Scyllam qui vult vitare Charibdem, you fly from one extreame to another, Traitors wi [...]hin 11. H. 7. ca. 1. though attending the Kings person in the Warres voluntarily, if you decline from the duty of Alle­giance, as it is plaine you doe. from one defence illegall to ano­ther; are you not punishable to goe or ride armed by Statutes formerly mentioned, without any evill intentions appearing? how much more then when you goe about to violate and transgresse the Lawes. Your voluntary act here makes the offence the greater, as for the exception of the King and his Servants in his presence, mentioned in these Lawes, that is nothing, it will nor helpe you at all, for these Lawes, as I have formerly spoken, intend only his servants me­niall, and for preservation of the Peace likewise; what is this paucity of men to Armies numerous? Here is no refuge for you [Page 111] in these Statutes, we are come to Nurcules Pillars, to a Ne plus ultra with our oppo­sites, we are come to so straight a passage that there is no declining either to the right hand or to the left, for I thinke we have searched all the corners of errour; I will pursue you no further, I wish you may at length turne into the wayes of truth, least that God open the mouth of the dumbe Creature to reprove the folly and madnesse, since the voice of the Law moveth you not at all. Hence it is apparent, that the Law as supreme hath invested both King and people, with that power which they have by Nationall pact and agreement, The law useth a power coersive as to the Kings possessions, yea is to any power illegall raised by him. and there­fore if transgressed they are liable unto judgement, as you see it cleare in matters touching the Kings possessions, though not his person; and if the Law come so neare the person of the King in point of coertion, as his Lands and Estate, making them Subject to the Decrees and Edicts of the Law, pro­nounced in the Courts of Justice; then common reason teacheth you, that the Law hath a compulsary power over all illegall forces raised by the King; for the Revenues and Lands of the Crown are more necessary and incident unto the regall Dignity, and are nearer conjoyned unto it in point of de­fence, maintenance and security, then any power not warranted by Law. Witnesse this Case, that the Lands and Revenues of the Crowne, come they by discent or purchase, goe to the next successour to the Crowne, contrary to the rules of Law in the Subjects [Page 112] Case, an instance of this the discent of the Crown from Ed. the 6. to Queen Mary, resol­ved by all the Judges, that the Lands of the Crowne descended to the said Queene, though but of the halfe bloud to King Ed­ward; (Halfe bloud) hinder n [...] di­scent of the Crowne. yea that the Jewels of the Crowne, and personall Estate vested in the said Queene, and the reason of the Law is the same before mentioned for defence, mainte­nance and security of the Regall Dignity or Person; but any illegall power raised by the King dyeth with his Person, it can nei­ther discend, neither can it be disposed of by the King, it hath no affinity (as I may so say) nor any relation to his Person; yea, the Law taketh no notice of it at all but with an eye of Justice; so that it is manifest the Law useth a coercive power, as to the Kings possessions, yea, as to any Armies of men, or forces raised by the King without legall authority.

Come we then to his Person, see the wis­dome of the Law there also, it useth no coersive power, because his Person by the Divine Law is Sacred; as also it is need­lesse for the Law to use a compulsary power over the Kings Person, seeing that his Lands and Possessions, yea, any illegall power rai­sed by him are subject to the Censure of the Law: What formidable thing is his Person if you take away any power from him but what is warranted by Law? No need of co­ertion as to the Regall Person. Nota. What need of coertion over his Person? I speake not this to diminish the just and due rights, and greatnesse of the King, for the Majesty and [Page 113] greatnesse, with which the Law hath in­compassed him is in truth, Majesty, Et regia celsitudo, illegall Magnificence makes him but a poore and weake Prince, despicable even in the eyes of his People, Ejus potestas as Bracton saith, est juris & non injuriae. But to draw to a conclusion, inferiour Courts of Justice have their authority, to suppresse any force raised by the King, Argum entu à mineri ad maju [...]. if not allowed by Law, as it appeareth in this Treatise, that these Armies of men by the King Com­manded are in no wise legall. What shall we then say? Shall not the high Court of Parliament have the same authority which inferiour Courts, Hand-maids unto it, even in time of Peace have used and exercised? I am ashamed of this grosse ignorance. Now you that have many tergiversations and shifts to defend errour, what say you unto this; declare unto the world your Cause, and stay these streames of bloud amongst your Christian Brethren; Publish to this Nation the blindnesse and hardnesse of their hearts, convince their judgements and un­derstandings, that truth may once more flourish amongst us: But if not, be for ever confounded in your selves, & close up your lips with perpetuall silence hereafter.

But you may say, Object. How comes it to passe that these particulars have not hitherto been discovered to the world? I answer, Sol. The opposite power or faction hath been for many Ages prevalent, and where the re­gall Power hath gained from the the Sub­ject, it is hard and with much difficulty to [Page 114] be reduced; notwithstanding there hav [...] not wanted in all Ages Champions, and As­sertors of these truths, Tempore R. 2. H. 4 Therninge chiefe Justice, nostr [...] tempore Crooke, H [...]tton, Weston, &c. Illustre Parlia­mentum nunc apud Westminist. yea even in our owne times there have been Propugnatores acer­rimi. Witnesse the Case of Mr. Hampden formerly remembred, in the damning of which Judgement I thinke all these illegali­ties appeare, which had it stood in force, property in Estates had been a meere nulli­ty, yea the Axe was laid to the very root, the subversion of Justice and Government; Nota. yea, your high Court of Parliament had been of no use for the Subject, since upon the Kings owne personall judgement and opinion, Viz. by thae judgement. for ought that appeares otherwise, for he that was the sole Judge of the danger of the Kingdome, might have imposed what Taxes he pleased upon his People, and up­on refusall have inforced the paiment there­of; a slavish and barbarous judgement, nullifying upon the point all the positive Lawes of this Kingdome, and making the Government it selfe meerely Arbitrary.

Pre [...]ogative.I should likewise here give you a touch of the Kings Prerogatives here, as pertinent to this former Discourse; for some may say, The Liberties of the Subject are much in­sisted upon here, but where are the Kings Rights and Prerogatives, hath he none at all? Therefore to omit the numerous Pre­rogatives of the King, partly mentioned in that ancient Statute of Prerogativa Regis, or dispersed in the legall Records or Annals, which to present unto you would be too great a labour and needlesse, 17 E. 2. Devant. Ante diem [Page 115] clauso componet vesper Olymp [...]. Wardships, Li­veries, Primer­seisin, Marriages, reliefe, fines, P [...]aliener, Cu­stomes, Mines, Wrecks, Trea­sure trove, Es­cheates, Forfei­tures, cum multis aliis &c, rights and prerogatives done al Roy pur defend. soy mesme, & son Realme of great benefit to the Crowne, and the respect of these the subject to be free from Taxes and Impositions. Definition of the Prerogative. Rules restrictive of the Preroga­tive. I will onely in a way compendiary shadow them unto you, by their rules and restrictions, which like the skilfull Pilot steere the course of this great Ship (the Royall Prerogatives) in the turbulent seas of humane affaires, therefore in the first place note, that the Kings Rights and Prerogatives are diffe­renced in Law, his Prerogatives are onely incident to the Crowne his Prerogatives are his rights, but not [...]onv [...]so.

The definition of a Prerogative is a po­wer, preheminence, or priviledge which the King hath over and above other per­sons, and above the ordinary course of Law in the Subjects case in right of his Crowne, his Prerogatives are either personall, or by reason of his possessions, or having relation to both.

All of them have these restrictions, they hold not in any thing injurious to the Sub­ject, they must be by prescription o [...] usage, beyond all memory to the contrary; no Prerogative can Commence at this day without authority, of Parliament. To give you some instances, Basketviles case s [...]venth report. The King hath title by Laps to present to a Church, he suffereth a Presentation, the Clerke is in­ducted and dyes; now the Patron shall pre­sent & not the King, and although the Pre­rogative be, that no laches or negligence shall be impured to the King Nullum tempus occurrit Regi, faith the Statute, yet laches here shall be imputed or otherwise the sub­ject should be injured in his right; the [Page 116] King had but onely the first or next presen­tation given him by Law, therefore he shall not have the second. Viz. By Writ certif. otherwise Perpa [...]ll or let­ters act of force. The King may take a man into his protection by his Prerogative, to free him from Suit and molestation if he be imployed in the Kings service (and so legally certified) but he cannot protect him that is in [...]a [...]tion, or against whom an Execution is to be granted at the Suit of the Subject, because that would be tortious to the Subject, and dispossesse him of that interest which the Law hath vested in him.

Royall Procla­mation a Prero­gative.He hath a great Prerogative indeed, viz. to make Proclamations Sub pena, which no Subject can doe, but this Proclamation must be in supplement, or Declaration of a Law already in being, not in derogation of any Law established; nay, I conceive he can­not command any thing by Proclamation (at least Sub pena) it there be no Law in force to warrant it, although in this parti­cular his Proclamation be in nature of a Law remediall, preventing some great mis­chiefe at present by no positive Law redres­sed. What shall we then thinke of those frequent Proclamations of late times, de­nouncing men Traitors before the Law hath so adjudged them, contrary to the knowne rules of Justice; yea men, the Members of Parliament, which cannot be legally judged Traitors but by the Justice of that high Court, as formerly you have heard, yea, di­vers others also no waies sentenced I assure my selfe in any legall way so to be.

To the second rule or restriction of the [Page 117] Prerogative, I need say little, authorities are so plentifull. If Lands come unto the King by Purchase, in these he hath no Preroga­tive, as in those he holdeth Jure coronae by great antiqui y. The King hath no Prerogative in the Militia. Nota. These concerning the Mi­litia, the negative voyce in Parliament can­not be Prerogative, they are not within these rules or limitations; for if the Prero­gative should be of force for the Militia, it would be injurious to the Subject, it should also commence by usage within memory, contrary to the Statute of 28 E. 1. 25 E. 3. 4. H. 4. 13. &c. Vid. ante. yea to other more moderne Lawes. So likewise the negative voice in Parliament, it would not onely be injurious to the Subject, but even to the Lawes and Government it selfe, Mag. Char. ca. 29. making them all meerely Arbitrary, yea, contrary to Statute Law, as some good opi­nion hath been.

Thus you have a briefe view of the Pre­rogatives, rather shewing you what they are not, then what they are; which I was mo­ved unto, for the satisfaction of those who have not so deep insight into the Lawes, Perpaucos arbusta juvant humilesque myricae. And now I have passed through the ene­mies Quarters, that is to say, the strength of their Positions and Assertions, by which they have misled a great party of this King­dome, I will a little breath and deliver unto you the summe of all, and run over the heads of their Principles.

Their first, The materiall cause, of Parlia­ment. as you may see in the begin­ning of this Treatise, strikes at the root and branch of Parliaments, the materiall cause [Page 118] thereof; that is, the Members of either Houses, sweepes them all away from the service of the Common Wealth, makes that renowned Assembly a meere desolate structure.

Formall causes of Parliaments.The Kings negative voice in the next place, as one blow takes away the formall cause of Parliaments, that is to say, the Laws and Government, he is by this Doctrine be­come the Legislator onely; the Members the Lords and Commons are but inconside­rable persons, they fill up roomes like Pa­geants for shew onely; they out of whose mouthes did flow the Oracles of wisedome are not now so to be reputed; the Kings voice now is a Law, at least if he so please, no law shall be enacted, the concurrence of the Prince in establishing any Law, be it never so necessary is now but a politicke mercy, or a mercifull policy (as some write) not without great perill to be altered, but simply to binde the Prince to ratifie or con­firme any Law, is repugnant to Monarchy. Me thinkes I see this great Body Politick, being desperately wounded with illegall pressures ready to expire; call for her Phi­sitians to minister wholsome Medicines un­to her: Alas, they cannot come, they are slaire with the Sword, they are imprisoned, they stand at the Seat of Judgement, if not capitall. The Phisick that should be given unto her, Nota. those Cordiall and Medicinall laws for [...]he restitution of health, see what is likew [...]se become of them. This little worme at the root of Government, a negative voice [Page 119] devoures all; this sweet smelling and amia­ble Rose hath at the root a Worme which consumeth all; whatsoever affordeth de­light or comfort. Quid delubra juvant, est mollis flama medullas. What doe the high towred conceits of Parliaments availe, this soft fire consumeth by degrees, Quod non violento synus Aestu ex'unt; That, which the great combustions, the rage of fire and sword could not accomplish; it wasteth thy very marrow and spirits, I meane the foule enlivening Lawes; but this onely by way of supposition. Thus you see the Tree by its fruit.

The efficient and finall causes of Parlia­ments we will joyne together, Efficient cause of Parliaments. the efficient cause of calling Parliaments is the urgent affaires of the Kingdome, as the words of the Writ are for the calling of Parliaments, not the issuing of the Writ by the King, that is onely instrumentall; and you may see by the ancient Law of this Land, Par­liaments are to be called so often as need shall require, 4 E. 3. 14. 36. E. 3. 10. by two Statutes in the Raigne of Edw. 3. Parliaments are to be holden once in every yeare, and oftner if need shall be; Statutes for ought that I know yet in force. With what face then can these stu­pid ignorant Advocates on the other part proclaime to the world the passing of this Bill for Trienniall Parliaments, an Act of transcendent grace and favour, when you see, it is an Act of right and justice to call them once every yeare, yea, oftner if need shall require.

Object. But me thinkes I heare it whispered, Th [...] this Act for Trienniall-Parliaments is an Act of speciall grace and favour, notwithstan­ding any thing yet spoken, as appeares by the very words of the Act, for by this Sta­tute it is provided, That in case the King shall not issue forth Writs for the calling of Parliaments within the time prefixed by the Act, that then every County and Barrough shall have power to proceed to election of their Knights and Burgess [...]s, in such manner as the Act hath appointed. Also it appea­reth further, that this S [...]ssion of Parliament so to be called, shall continue for the space of fifty daies without any power in the King to dissolve it. Not calling Par­liaments, or when called the power of dissolu­tion no Preroga­tive, because against these statutes. Vi. Devant. in le prerogative. Parliaments to be cal­led without the King, yea, when called, not to be dissolved by him for such a time. Sure Regall Prerogatives conferred on the Subject.

I answer, Even as the Sunne disperseth the mists of the night, so in the presence of truth all these foggy vapours of errour will suddainely vanish; Sol. for as to the first, the calling of Parliaments, doth it not ap­peare that they are to be holden once every yeare, yea, oftner if need shall be, by two ancient Statutes yet in force? Nota. Which Sta­tutes amongst other good Lawes, the King at his Coronation sweareth to observe and keepe. How can Parliament; be holden if not called? therefore the King is bound of right to call them.

For the second, That they shall not be dissolved for fifty daies by the King; I [Page 121] answer, (Parols font plea) as the Lawyers say. Are not the words, Parliaments shall be holden once in every yeare? Holding of Par­liaments implies continuance of them. Is the dis­solution of Parliaments a holding of them within the letter or sence, of either of these Lawes? Nay further, I say, Nota. They shall be holden, that is to say, By the ancient law of Edward the Confessor, the Parliament ought not to be deter­mined before every bill put in to be discussed, [...] for difficulty ad­journed other­wise, &c. Finall cause of Parliament. continued not for fifty daies, but for fifty yeares for ought that I know, within the very words of either of these Lawes, if the affaires of the Kingdome shall so require; for other­wise they are not holden Cum effectu, as these Statutes intend, plainly to any mans judgement that is rationall.

Thus you see an end, a dissolution of these malignant Objections, but no disso­lution of Parliaments, I hasten the finall cause of Parliaments, is to make good lawes, to redresse grievances, to procure peace; but alas, the Dove brings not to us the O­live branch of Peace, the voice af the Tir­tle is not heard in our Land; but the wa­ters and inundations are increased so high, that they have even drowned the Arke of God, the Peace of God both in Church and Common Wealth; the urgent affaires of the Kingdome are laid aside. Me thinks the answer of Jehu in the Scripture is very pertinent to our purpose, No peace so long as sinne aboundeth. What hast thou to doe with peace, turne thee behind me? What peace, so long as thy abhominations continue, and are so many? The bloud of so many of the Saints shed and spilt upon the ground doth cry for vengeance, and the wrath of God is incensed against us.

Note these par­ticulars.Observe (judicious Reader) from this precedent discourse these few particulars apparent and unanswerable, and as the very minde of the Author of this worke, reflect and contemplate thereupon.

The first is, That the root and originall of all these troubles was the Kings disser­ting the Houses of Parliament, under pre­tence of Tumult, and in security of his Person, but the truth is evident enough, it was because he could not prevaile in that evill Counsell which then was given him, upon suggestion of I know not what crimes, to take away the Members of the Houses from the service of the Common Wealth, and trying them by Commissions elsewhere by the knowne Lawes of the Land (as they please now to terme them) wrested & mis­interpreted by illegall Judgements to Con­demne the innocent; Vi. Deat. f. 10. a for the positive Lawes, and the Law of Parliament much differ, and are not in many particulars consistent together, and yet both Lawes in their proper Spheres and motions just and good Lawes, and howsoever the people be deceived otherwise, and by other pre­texts, this is the very truth and beginning of all our miseries; Hinc illae lachimae.

In his Majesties absence from the Parlia­ment these Agents have not been idle, they then labour to invalide all the procee­dings of Parliament without the Kings pre­sence personally, they Arraigne them, and Judge them as null, and void by extra­judiciall Declarations, there is a suddaine [Page 123] eruption of this impious doctrine, That the King hath an absolute negative voice to all their Votes and Resolutions, and so their sitting there frivolous and contemptible; a position inconsistent with the Government of this Nation, and subjecting both Lawes and people: Arbitrio principis, to the will and pleasure of the Prince. A cursed O­pinion.

And further, 3 when they see that these Plots are ineffectuall, they take up Armes in plaine termes; But what to doe? To de­stroy the Lawes and Government for ought that I know, yea, the King himselfe in his Regall Dignity; they colour it with Law and Justice, forthwith issues a Commission, knowne by the name of The Commission of Array, an illegall and unjust Commission, as you may perceive by this former Dis­course. Afterwards they fly to the defence of the Kings Person, Nota. an Act justifiable (as they say) even by the Law of God and Nature, as if the Law of this Land had provided for the Members of this great Body Politicke, and had left the head thereof without any security of it selfe; a high and great scandall to the Government. The truth is, the King is made use of by them, under pretence of the security of his Royall Person, but to shelter them­selves from the mulct and penalty of those great and capitall Crimes, of which they are even by the positive and knowne Lawes guilty; you may see how largely and wise­ly the Law hath invironed the Royall State [Page 124] and Dignity, with walles of defence round about in the fore-going Discourse; there­fore they need not seeke any other refuge. Last of all; they cast this a [...]per [...]on upon the Parliament and Kingdome, That they take up Armes against the King, which you may perceive by this Discourse they doe not; they intend no hurt to his Person but the safety thereof, for surely they that seeke to invest the King with the same garments of Peace and Justice, with which the Law hath adorned him, seeke more the security of his Person, then those that seeke by these bloudy courses to present him unto his people in the indeleble Characters (that I say no more) of errour and mis­government.

Are Usurpations the Robes of a Prince? Certainly these are not his Parliament Robes; Is any thing denied or with-held that is his Majesties right, if his Majesty would cease these Warres against his Peo­ple? Thus you see in briefe the beginning, progresse, and continuance of these our ca­lamitie [...] unto this day on the Kings part, by evill Counsell fomented and maintained, The Parliament and people with them, fight for their lawes and liberties; yea for the King, and the maintenance of his regall dig­nity. nothing but violation of Lawes and Justice; and although it be falsly alledged, That the King fighteth for his Crowne, I thinke upon the premisses you may safely con­clude, the Parliament and people fight for their Religion, Lawes, and Libertie;; yea, to set the Crowne, and the due Rights thereof upon the Kings Head; and his Posterity, which by these illegall waies hath [Page 125] been, is, and will be much exposed even to ruine and destruction.

If any ma [...] shall be yet so unhappy in himselfe, as not to rest satisfied with what is here delivered, but that flesh and bloud will still contest, I have nothing more to say unto him then this; It is the Lawes and Government of this Kingdome that war­rants this truth, Et c [...]ntra negu [...]e [...] principia non est dispu [...]a [...]dum.

And now to draw to a conclusion of this wo [...]ke, you that are filled with knowledge and wisedome (as it is much g [...]o [...]ed in by the s [...]ple and ignorant) where is your learning and wisedome? may not I say un­to you, Beho [...] how that God hath chosen the vile and abject things of the world to oppose the mighty, the foolish things of the world to confound the wise; The Kings part fight not for Re­ligion, since they seeke to ene [...]vate those Lawes which (under God) preserve and secure our religion 3 Iac. ca. 5. vi. devant. What are these streames of bloud for? Are they for your Religion? Is this your last objection? take heed that you erre [...]or herein, if you endeavour to disarme Religion, to take away the Bulworkes and Fort [...]fications thereof, the Lawes and Statutes of this Kingdome, by which our Religion hath been hitherto under God preserved and maintained; Are you not guilty of Sacriledge Was there not a Statute lately made to disarme the Papist, as a dangerous enemy to our Reli­gion? to take away all Armes and A [...]mu­nition from him, as also to banish him from the Kings House or Court, or of his Heires apparent, or within ten miles of the City of London. How is this excellent [...]aw most [Page 126] shamefully abused? Not one jot or tittle of the same, No cause what­soever suffici­ent to justifie the violation of the Lawes, we may not doe evill that good may come of it. but infringed; Have they not freely repaired unto the Kings Court, as likewise unto the Princes? yea, have they not been a Guard unto his Person? Doe you not likewise Arme, and command in Armes the enemies of our Religion against, us the Popish Party, under pretence of the de­fence of the Kings Person, directly against the Lawes of this Realme, as I have shewed you before. That Law which next Divine Providence is the onely security of our Re­ligion, the disarming and weakening the Papist, and what will ensue upon thi [...], but if they should prevaile (which God avert) an utter ruine of our worship of God, or at least a tolleration of Popery, which would soone extirpate the Protestant Re­ligion.

Now let the world see what zealous As­sertors you are of Gods true Worship and Service, when you open the way to all pro­phanesse and superstition.

The religion which the best of you en­deavour for, is full of many superstitious Ceremonies fit to be abolished even in the judgement of the most moderne.

I will not here enter into any discourse of them, as being impertinent, and they be­ing apparent unto the world otherwise.

Thus I hope I have framed a Gordian knot by the Lawes of this Kingdome esta­blished, if any man can dissolve or unty the the same, let him. Discendere in arenam, I heartily desire that by the same rules of [Page 127] Law and Justice the folly of this worke may be convinced, and that with meeknesse and moderation by the touch-stone of truth, viz. the positive Lawes, that those that sit in darknesse may be enlightned; let no man goe about to hew it in pieces with the sword of violence and injustice, R. 2. for then heare what the blessed Apostle saith, By breaking the Lawes dishonourest thou God? Thinkest thou that the humane Lawes are not the Lawes of God, when thy obedi­ence unto them is so often in the holy Writ injoyned? yea, canst thou imagine, that if thou shalt transgresse this Law, that thou shalt escape the righteous Judgement of God? Rich Legacies, viz. the positive lawes. Are the rich Legacies of thy fore­fathers bought at so deare a price, with so much bloud and treasure, trampled under thy feet as despicable things? I will say no more. Remember the wise man, let not mercy and truth forsake thee, binde them about thy neck, and I beseech the Almigh­ty God to give unto us all a right understan­ding in all things.

What I intended is now finished, where­in I have squared my course altogether by the positive Lawes, because of exception of the adverse part, not touching upon the legislative or supreme power of Parliaments, Master Plynne. it being done already by the Pen of a lear­ned Gentleman, whose abilities are suffici­ently knowne.

If I have satisfied any man in what is written, it is my desire. Epilogue. I call Heaven and Earth to witnesse, that according to my [Page 128] knowledge in the Lawes of this Kingdome, I have delivered the truth, and I wish every man to lay his hand upon his heart, and rightly to weigh and consider the pre­misses, and for passion, sinister ends or re­spects, to deviate neither to the right hand not to the left, but with a sincere and cleere minde to implore the Divine assistance, that in so weighty a matter he may act, re­solve, and doe that which shall be agreeable to the holy will and pleasure of God, and consonant unto the Honourable Lawes and Government of this flourishing State and Kingdome.

Soli Deo Gloria.