Of the 1. of July. 1642.

Printed at Yorke, and reprinted at Oxford by His Maiesties speciall command. Anno Dom. 1642.

HIS MAIESTIES ANSWER, to the DECLARATION of both Houses of Parliament, concerning the Commission of ARRAY.

HAving first received, by the publi­shed Votes and Declarations of both Our Houses of Parliament severall informations of evident and imminent danger unto Our Kingdome, from enemies abroad, and at home, and finding that Our Commissions of Lieutenan­cie (although Wee did since the beginning of this Parliament grant the like for the County of Yorke, to the now Earle of Essex, with the privitie of both Our Houses of Parliament, and without exception from either; and that the same was the meanes for defence of this Kingdome used [Page 2] in the happy times of that good Queene Eliza­beth, and Our blessed Father, and confirmed as well by the opinions of Iudges and Lawyers, as the universall obedience of the Subjects) were all of them,without hearing any of Our Councell learned, voted illegall, and by Our House of Peers called in to be cancelled; And that thereupon Our Kingdome lay open and exposed to all dangerous attempts without other provision then of a late pretended Ordinance of both Our said Houses; which (being made without Vs, and contrary to Our expresse will declared, and after it had beene twice refused in Our House of Peeres, and after the departure of a major part of the Peeres) was so farre from being a meanes to prevent danger, that if it should have beene admitted, it would in all probabilitie, have beene the ready way to con­fusion, and ruine, as being made in an unparlia­mentary, unpresidented, and unjustifiable way, and therefore of a most dangerous consequence, both to Vs and Our people, as well in that parti­cular, as in the Example.

Wee did therefore for the avoyding of the pe­rill of delayes, and expence of time in disputes, issue forth such Our severall Commissions of Ar­ray into Our severall Counties, as upon great ad­vice, Wee conceive were not only secured for, but [Page 3] also might well be most satisfactory unto both Our Houses, as being beyond all just exception in the point of Legality, Danger, or Inconveni­ence, the same having beene heretofore most de­liberately agreed upon, and settled (as Wee shall herein shew) in, and by the care and wisedome of the Parliament, held in the fifth yeare of King Henry the fourth.

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

In all which, for the better and further satis­faction of Our well-affected people, and to save them (if possible) from incurring any danger ei­ther by obeying that Ordinance, or disobeying [Page 4] Our Commissions, (in both which We are resol­ved to require a strict examination and account) We have taken the pains to examine the said De­claration, and the Objections therein against Our Commissions.

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

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

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

Those who (having estates) are not able to serve in Person, are to be assessed, and may be di­strained to finde Arms for others, according to [Page 5] the quantity of their Lands and Goods; But with this Limitation, prout rationabiliter portare pote­runt, & salvo statu suo; that is, That they be char­ged but moderately, and so as they may live still, according to their former condition.

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

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

The Commission having thus, with equality, and indifferency, charged Our Subjects with pro­vision of Arms, it further provides for their cal­ling together, training, and exercising, not (as it is in the Declaration) generally at the pleasure of [Page 6] the Commissioners, without restraint either of time or place:) But that they shall be called together, ad certos dies & loca quos videritis magis competentes & expedientes, & pro populo nostro minùs damnosos; At such times and places as the Commissioners shall thinke to be most fitting and expedient, and least hurtfull unto the people.

And having thus provided, for the Arming and preparing Our Subjects for defence of the Kingdome; In the new place, the Commission gives power to the Commissioners, to leade them to the Sea-coast, or else-where; but not at the pleasure of the Commissioners, (as may be inferred out of the Declaration) nor without Limitation, (though omitted also in the Declaration) But the Commission provides, That they are to be led to the Sea-coast, or else-where, ubi ac quoties necesse fuerit ad inimicos nostros expellend. debelland. & destruend. cum periculum immineat; At such times and places as it shall be necessary for the ex­pulsion, vanquishing, and destruction of Our Enemies, when there shall be imminent danger. And it further provides, in another part of the Commission, That they shall be conducted; cum periculum imminuerit in defensione Regni & Patriae tam ad Costerum Maris, quàm alia loca ubi magis ne­cesse fuerit, In case of imminent danger, for de­fence [Page 7] of the Kingdome and Countrey from time to time, as well to the Sea-coast, as other places where it shall be most necessary.

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

And to the end that every County, so farre as in Vs lyeth, should have cause to rest the more as­sured [Page 8] against any evill usage and abuse; By this Commission Wee have appointed for Commis­sioners, such as have estates in the severall Coun­ties, and are Persons of Honour and Reputation, who are not onely engaged to all fairnesse out of their owne interest, but also in the concernment of their Posterity, Kindred, Alliance, Friends, and Tenants, and the good affection of their Coun­trey, which to Persons of such Condition as they are, is of a consideration beyond their Fortunes; So that Wee hope their forwardnesse in under­taking this trouble for the publike defence, will occasion in Our good Subjects, rather a willing obedience unto Vs, then the least distrust or jea­lousie of any of them.

Having thus stated the substance of Our Com­mission, and prevented that mis-understanding, which this Declaration might have else begotten thereupon; Wee (in the necessary justification thereof, and vindication of Our owne Honour, against those expressions in that Declaration, which so nearely doe concerne Vs (under the Common name of Evill Councellors) as if Wee had violated Our Lawes, even those so lately made; broken Our often Protestations of go­verning according to Law, and done that which would bring Our people into a slavery) shall [Page 9] now joyne issue with Our two Houses, in every materiall part of their Declaration, both in the consideration of the pretended Danger, Inconve­niency, and Illegality.

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

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

And therein Wee appeale to each good mans conscience and reasonable understanding: In a Kingdome (as this is) which in its fundamentall policy (as well for its owne assurance, against the danger of Forraigne Aids, as the bad use that might bee made of great constant Forces (whe­ther forraigne or native) must necessarily be de­fended by it selfe: What other way of defence can be imagined but by the Subject? What more reasonable proportion of charging them can bee found? Wherein can the Limitation of the (other­wise Arbitrary) Discretion be bettered? Or how, in any one particular, can a more equall & fitting way be taken for the avoyding the grieving Our good Subjects in their own particulars? Yet with­all providing for the defence of our Kingdome [Page 10] in the generall, then is by this Commission?

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

And lastly, Wee demand, Whether the persons appointed over the Militia by Our Houses of Par­liament, have not, by their pretended Ordinance or Orders, most of those powers; nay, some grea­ter [Page 11] over the Subject, in this matter of the Militia, then are in this Commission? and how they them­selves can imagine these powers to be of a better nature by their authority, then they are by Ours?

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

Wee shall now proceed unto the next generall issue, touching the pretended illegality of Our Commission of Array, and shall justifie the lega­lity [Page 12] thereof by Common Law, and by the practise of former Ages conforme to it; and by Statutes in the very point against all the severall pretences mentioned in the Declaration, whereunto Wee shall give particular Answers.

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

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

For since (as Wee hope none will deny) the Kingdome must of necessity be ever in readinesse (in time of danger at least) by power of Arms to prevent or suppresse Rebellion at home, and In­vasion from abroad; and to that end the Subject must be armed and prepared before hand, and conducted after, as there shall be occasion: And that this cannot be done without a Command or Government, Wee desire much to know in vvhom, out of Parliament, (for Parliaments are not alwayes, nor can bee called at all times, or meet on the suddaine) this power can be but in Vs as the Supreame Governour; (as it is in all o­ther States, be the persons of the Governours one or more, according to the forme of each State) [Page 13] And can the Supreame Governour, according to his duty, and Our Selfe more particularly, accor­ding to Our Oath, otherwise afford Our people that protection which is due unto them, in main­taining to them the Lawes in the matter of Pro­perty and Liberty against private injury or op­pression, As well as Our Selfe, and them, and whatsoever is deare unto any of Vs, against Ene­mies or Rebels, especially the just Rights and Prerogatives of Our Crowne, wherewith God hath trusted Vs, (according to the fundamentall and well-established policy of Our State) as well for the peoples good as Our owne honour, both which must bee preserved; And will any man say, that by calling of Our Parliament, (which is but a meeting of Vs and Our Subjects, (and such they continue as well collectively in the two Houses, as they were before singly) and a meet­ing in its owne nature dissolvable at Our plea­sure; and though now enlarged by Vs in time, yet not in power) Wee are growne lesse, or de­parted with any thing to them either by way of abdication, or communication of Our Royall Power? This upon the common principles of Reason and Government is so obvious to every man, that Wee shall for the present proceed no further therein, either by quotations of Acts of [Page 14] Parliament, or other legall authorities, (some whereof Wee have recited in Our late Proclama­tions) till Our two Houses shall give Vs some justifiable instance of some good time to the con­trary.

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

[Page 15] And this practice, the Penner of this Declara­tion [Page 16] doth indeed not deny; for having before confessed the often issuing of Commissions of Array, after 5. H. 4 in the times of H. 4. H. 5. and H. 6. (and hee might have brought it to later times, if hee had so pleased) he doth afterwards confesse, that divers Commissions of Array issued in divers Kings Reignes before 5. H. 4. But as to this point of practice before 5. H. 4. hee saith by way of answer, That for the most part they were warranted by particular Acts of Parliament. And yet amongst so many presidents of severall Com­missions, he gives instances onely of two yeares in 13. & 14. E. 3. of Commissions of Array then issued, warranted by Act of Parliament.Rot. Par. 13. E. 3. P. 2. N. 39. Rot. Parl. 14. E. 3. P. 1. N. 53. Which, if true, doth no more disprove the legality of o­ther Commissions of Array, constantly issued without a Parliament, then it doth of Commis­sions of Oyer and Terminer (which at the same time in 14. E. 3. together with the Commissions of Array, were appointed to issue to the same per­sons) or of any other Act, which the King doth by the advice of his Parliament, though he may do it without them: rather it implyeth the legality, and the former usage of such Commissions of Array, in that it appoints such Commissions to issue, but limits not at all the particular Clauses or Powers to be inserted therein, as a thing known and usu­all to be done.

[Page 17] But the truth is, both the presidents do con­cerne the drawing of men out of the Kingdome to a forraign Warre; and so are nothing to the pur­pose Wee have in hand. And that of 13. E. 3. is not at all a Commission of Array, but of another na­ture, giving power to the Lord VVake, and others to provide moneyes, and to cause certaine persons there named, who had particularly undertaken the service of the Scottish Warres, Leur arraier & appareiller d'aller vers, Newcastle: To array and prepare themselves to goe to Newcastle: (whi­ther they were to be brought at the charge of the Counties) and to be there at a time appointed.

Having thus set forth the continuall practice of issuing forth Commissions of Array in former ages (whereunto Wee never found, till now, any exception, as for home-defence) and the absolute necessity thereof, Wee doubt not but every indif­ferent Iudgement will easily conceive, That this power is a right Vs by by the Common Law. And the rather, when they shall consider, That a Commission of Array having beene issued by the King in 5. H. 4. The Commons in Parliament, that yeare did not except to any part thereof as illegally, no, not to the Clauses, which seemed hea­vy over the Commissioners; nor did except at all to any the powers of execution thereof over the persons [Page 18] to be commanded, but did acknowledge the Royall assent, for the amendment, and alteration of that Commission into the now present forme, to be an Act of great grace.

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

[Page 19] Wee come now more particularly, to the exa­mination of this Our Commission, as it stands by Statute-Law, and herein (as in the matter princi­pally insisted upon in the Declaration to be dis­proved) Wee do affirme, as formerly in Our Pro­clamation:

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

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

And therein (as Wee do agree) that at the first, the Complaint of the Commons, was onely in re­spect of some Clauses & wordes therein, which were Greivous, and Dangerous to the Commissioners: So it cannot be denyed, but that afterwards the Co­pie of the Commission so complained of, was delivered by the King to the Commons, with an expresse Generall Liberty (without any restraint) [Page 20] to correct it according to their owne mindes, and thereupon the Commons did make use of that further Liberty, and corrected the Copy, in divers materiall Clauses, and Words which concerned the powers of Execution, as well as those, which concerned the Commissioners (though the contrary be strangely affirmed by the Penner of this Decla­ration) as may appeare more particularly by the clauses following, wholly omitted by him.

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

2. The Copie, as concerning the assessing, and distraining of all those who are able in their E­states, but not in their Bodies, goes therein thus; Ad inveniend. juxta quantitatem terrarum & bono­rum suorum, & prout rationabiliter portare poterunt, [Page 21] salvo statu suo, armaturas hominibus ad arma, & ho­minibus armatis, & arous, & sagittas sagittariis sic arraiatis & triatis, qui non habent armaturas arcus & sagittas de suo proprio, nec unde armaturas, arcus, & sagittas emere & providere poterunt, & ad contri­buend. expensis omnium illorum qui sic laborabunt pro defensione dicti Regni nostri, tam infra dictum Com. nostrum quàm extra, quandocunque indiguerit; Ita quòd illi qui morabuntur, &c. For the finding of Armes, according to the quantity of their Lands and goods, and as they may reasonably beare, sa­ving their degree, for men at Armes, and men Ar­med; and Bowes and Arrowes for Archers so arrayed, and trained, which have not Arms, Bows and Arrows of their owne, nor have wherewith they can buy and provide Arms, Bowes, and Ar­rowes; and to contribute to the expences of all those which shall so labour for the defence of Our said Kingdome, as well within that Our County as without, whensoever there shall be need. All which, as may appeare upon the com­paring, is much beyond that Commission of 5. H. 4. as it was entred after the correction.

Vpon these proceedings in 5. H. 4. the corre­cted Copie being presented to the King, with a Prayer by the Commons; That from thenceforth forward, no Commission of Array should issue other­wise, [Page 22] nor in other VVords, then was contained in the Copie so corrected, &c. An Act was thereupon made by the Kings Royall assent thereunto, by the advice of the Lords.

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

[Page 23] And herein, to justifie this Our sence on this Act of Parliament of 5. H. 4. and withall, to shew the errours and mistakes of the Declaration in frame of the Argument to the contrary; the state of the Case stands thus briefly.

The Commons complained but against the Penall Clauses upon the Commissioners (which Wee agree) at first; but afterwards, the King left them at liberty to correct the whole, as they plea­sed. And now they alter their minde, and doe not rest in correction of those Penall Clauses up­on the Commissioners, according to their first desire, but (as it is plaine upon the compare of the Copie, as it was corrected, with the Commission formerly issued, the not observing whereof was the great mistake, that doutblesse now mis-led Our two Houses) the Commons likewise (as wise men) who would not wave the advantage of a proffered favour from the King, did correct the Commission also in the powers of execution over the persons to be commanded: And there­upon the corrected Copie being presented, and the Commons expecting, that even presently (for there was then occasion) and often afterwards Commissions of Array would (as they did in truth) issue forth, did pray not only for the indem­nity of the Commissioners, which had bin indeed [Page 24] but answerable to the first complaint; But in the first place, they made their Prayer in these Words; That from thenceforth forward, no Commission of Ar­ray should issue otherwise, nor in other words then is contained in the said Copie (so corrected)

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

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

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

For the third pretence of the Prayer, (which [Page 25] came not till after the Commission was in all points so as before corrected) That the Com­mons did not desire any amendment or Declara­tion concerning the Powers of execution, that is also mistaken; For having made those severall amendments, in the very first place (before any particular desired on the behalfe of the Commisisioners) their prayer is as generall, as their amend­ments, That from thenceforth forward, No Commis­sion should issue otherwise, nor in other words, then is contained in the said Copie.

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

As for the occasion of reliefe for the Commis­sioners more then for the persons to be comman­ded, We say, the Commons could not but know that there was no more occasion for the one, then for the other: For the same Law of 4. H. 4. if it [Page 26] had (as is pretended by the Declaration,) expresly damned the Commission as unlawfull in the Powers, that (without more) had apparently, to every common Iudgement, sufficiently secured the Commissioners against all refusalls; And in truth, the persons to be commanded, being most of them of the lower sort, had more reason to feare the Commissioners, then the, Commissio­ners, being men of Power, had to feare any trou­ble by Fine or Imprisonment, or otherwise, from any of the Courts above, especially in a time when Parliaments were so frequent.

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

And as unto the pretended contrary practice, Wee agree that it is true, Divers Commissions of Array did issue out, which do vary from this Sta­tute of 5. H. 4. yet Wee deny that they must be therefore contrary to it; For (however upon the [Page 27] Commission of 5 H. 4 as it was corrected in the severall Clauses in such manner as before) it is en­acted that from thenceforth forward no Com­mission should issue out otherwise then is contai­ned in that copie; yet it is most evident notwith­standing, that the meaning of the Law could ne­ver be to tye the King to the very words of that copie; For then at all times the Commissions must have begun with Rex, &c. and not Carolus, or Regina, and ended with the same Teste for time and place, and just the same preamble of danger, be it true or false (whatsoever other occasion had been) must have been meant to be expressed; All which are absurd. And in this, as in all Acts of Parliament, as well as in Wills, the intent clearly and necessarily appearing out of the Act it selfe, is the Law, which in this case was not so much to tye to the very identicall words, as, That the King should not issue out any Commissions of Array which should exceed this which was so settled by any further penalty on the Commissioners; nor in the powers of exe­cution upon the Persons to be commanded; which sence appeares in this, that in such a case it could never have been meant, That the Powers of exe­cution of the Commission, being severall, as to Array, Assesse, Arme, Traine, Muster, and Con­duct, and all these not necessary on all occasions, [Page 28] nor all alwayes equally fit to be entrusted to the same persons, That the King should be bound at all times unnecessarily to command the execution of them all, and equally to entrust the same per­sons with them all, as he must have done in case the Act had beene litterally to be expounded in each title.

The truth is, many Commissions did vary, yet still were warranted, as not exceeding that of 5. H. 4. in the powers. As sometimes granting but part of them, when there was no cause to use all; as also, some varyed on the occasion, as sometimes providing against an invasion, in this or that part onely, sometimes more generall throughout the Kingdome: And lastly, it is true that some were upon occasion of rebellion, for which there is as much cause as against a forraign enemy, for those Commissions are not against 5. H. 4. which was a president, onely for the power of execution of Commissions of Array (whatsoever might be the necessary occasion to issue them) And as this par­ticular Commission sent forth in 5. H. 4. and thus after corrected, was on the occasion of the feare of the French, and therefore was upon that accident made onely as against an Enemy; so if according to former practice the like had then issued in case of Rebellion (in which case perhaps Rebellion [Page 29] had beene mentioned as the cause) then the sup­pression of Rebellion might have beene inserted in this president, and then the Argument might have beene at this day used as well against the warrantablenesse of this Commission in case of Invasion.

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

But shortly after, upon information of an in­tention of the VVelch to enter into England, a Com­mission issues to Sir Thomas Barkley touching some [Page 30] of these Counties and others, not, to Array and Arm the inhabitants, for that was done before, but ad supervidendum, to see that they were sufficiently arrayed, according to their estates; and to lead them as often as it should be needfull for resistance of the Rebels.

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

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

Notwithstanding, if some Commissions can be produced, which are not warranted by 5. H. 4. Yet that will be no sufficient Argument to prove, That this of 5. H. 4 never meant to settle the Po­wers of Execution, for there is no doubt, but in so long a processe of time, as since 5. H. 4 there may have beene some deviation contrary unto the [Page 31] Act, the same having not at all times beene re­membred, as perhaps also may be in the Clauses concerning the Commissioners, which yet We are sure Our two Houses will not allow as an Argu­ment against the force of 5. H. 4. as allowing it to be an Act concerning them.

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

But if any man be yet unsatisfied with so cleare Reasons on Our part, and in Our answers, We shall conclude upon him with the authority of the whole Parliament of 7. H. 4. Rot. Parl. n. 36. within two yeares after this Our Commission was settled, when probably many of the same persons were members of both the Parliaments, Whereby it ap­peares that this Act of 5 H. 4. is so binding as unto all the Powers of execution over the persons to be comman­ded, that the Clergy (who in former times had used to be arrayed amongst themselves by Writ or Com­mission [Page 32] to the Bishop or Arch-bishop) were bound, as within the body of that Commission so settled by Parliament. And they thereupon, in that very Parliament of 7. H. 4. are excepted out of this very Commission of 5. H. 4. which is therein mentio­ned; and it was then enacted, That from thenceforth the Clergy be not any wayes charged amongst the Laity for the making of any such Array, nor for any contribution amongst the Laity for the same.

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

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

[Page 33] And therein We professe the difficulty hath been more to finde out, then to answer the inference made upon these Statutes. For the Declaration re­citeth the Statute of 13. E. 1. to bee a particular Assize (or Assessement) of Arms, both in respect of the Kinde of Armes to be found, and the proporti­on of the estate of every man, after which they are to be found, downwards from 15 pounds in Lands, and 40 Marks in Goods: And reciteth the Statute of 1. E. 3. That no man from thenceforth shall be charged to arme himselfe otherwise then he was wont in the time of the Kings Progenitors; and that no man be compelled to goe out of his Shire, but where ne­cessity requireth, and sudden comming of strange ene­mies into the Realme. (Whereupon it is taken for granted, That the Statute of 13. E. 1. was a provisi­on of Armes for defence extraordinary, and that this Statute of 1. E. 3. was meant with reference thereunto) And also reciteth the Statute of the 25 yeare of E. 3. (as to be to the same effect with the former) against the constraining men to finde men of Armes, Hoblers, or Archers, without consent and grant made in Parliament. And lastly, reciteth the Statute of 4. H. 4. (which confirmes those two Statutes of 1. E. 3. and 25. E. 3.) And immediately thereupon makes this conclusion which followes; That by [Page 34] these Acts (not distinctly applying the severall mat­ters to the severall Statutes) it clearly appeares, That the King could not, by the Law, give power to impose Armes upon the Subject, (which the Declaration cal­leth sometimes finding of Armes, sometimes find­ing men at Armes, all of different sences) or to com­pell them to be drawne out of their Counties: Which af­terwards, in stating the Case, is expressed thus, That the Subject was not compellable to finde any other Arms then was declared by those Statutes, or to go out of their County, but in case of Actuall invasion by Forraigne Ene­mies. Against which this Commission is said to be.

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

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

First then, as for the words of Arming a mans selfe used in the Commission (as also in the Act of 1. E. 3.) they are litterally to be taken for the providing of Armes for a mans owne person, wherewith hee is to serve as a Souldier, either Horse-man or Foot-man, of what kinde soever; And the finding of Armes [Page 35] for others in the Commission, is but the finding the bare Armes, without providing the men, and are so to be taken here, (in whatsoever sence they may be taken else-where,) as may clearly appeare upon the very reading. And as for the words (finding of men of Armes, &c.) which are the words used in the Statute of 25. E. 3. they are usually and properly enough taken for the setting forth of Souldiers, the paying of their wages, or contributing towards ei­ther of them

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

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

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

To this Wee answer; That that Statute of 13. E. 1. (besides that it is but an affirmative Statute,) [Page 36] was made onely for the ordinary defence of the Kingdome, for the preservation of the peace at ordi­nary times; and was not intended as a provision of Armes for defence extraordinary: but that for the publique defence in time of Danger, the King might, and must charge other Armes, and other proportions, according to the exigency of the oc­casion.

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

And no lesse considerable is it to this purpose, That for the charge of this defence no man of what estate soever, is by this Act charged above the rate [Page 37] of 15 Pounds in Lands, or 40 Marks in Goods, and he that hath 15 Pounds in Land, or 40 Marks in Goods, is charged as high as the greatest: which is not to be imagined in case of provision for de­fence extraordinary.

And to cleare this further out of this, and other Acts; it is plain, that this very Act expresseth it selfe in these words, That every man have in his house Har­nesse to keepe the peace: and appoints those who are thereby assessed, to pursue Hues and Cries af­ter Theeves and Robbers, (which went in those times with great strength, and in multitudes) with their Horses and Armour. And the old Articles of inquiry upon that Statute, being made in the same Kings raigne (and to be seen in the Statute-books) tend onely to inquiry touching the keeping the peace: as whether all men betwixt the age of fif­teen and sixty be sworn to keepe the peace, and whether they have weapons in their houses accor­ding to the quantity of their Lands and Goods, for conservation of the peace, according to the Statute. And the Statute of 2. E. 3. cap. 6. renewes this Sta­tute of 13. E. 1. in these words: Item, As to the keeping of the peace in time to come, it is ordained and enacted, That the Statutes made in time past, with the Statute of Winchester, shall be observed and kept in [Page 38] every point. And strange it were to imagine, that the wisdome of a Parliament, in the matter of ar­ming of the Subject, made no greater or better pro­vision against an Enemy, then against a Theefe, or a Rogue. And it is not so proper to charge the Sub­ject at all times in the same manner and proporti­ons as in times of danger.

And lastly, for further clearing this Our exposi­tion of that Statute of 13. E 1. Wee say, That al­though (as Wee have already shewed) the Com­missions of Arrayes did, from the time of making the Statute of 13. E. 1. frequently issue both before and since the Statute of 5. H. 4. yet none of those Commissions were regulated by the Statute of 13. E. 1. but either they were (as commonly) for ar­ming them according to mens degrees & abilities, without mentioning the Statute of 13. E. 1. Or, where any did expresse the quality and proportion of Armes to be found, They varyed from the Sta­tute of 13. E. 1. and appointed other kinde of Arms, and differenced and proportioned the estates of those who were to finde Armes, otherwise then is mentioned in that Statute: And sometimes with an expresse Declaration, that the Statute of 13. E. 1. was made for the conservation of the peace in a time of peace, when there was no danger of a for­raigne [Page 39] enemie. And though some use might be made of those armes appointed by that Statute in time of danger, as well as any other weapon: yet the same was not that kind of armour, which was principally intended as fitting for such defence; as may appeare by the presidents above cited. And the constant practice in all after ages for defence extra­ordinary hath ever been with other armes, and af­ter other Proportions, as Wee beleeve will not be denyed by any man.

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

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

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

And as the Penner of that Declaration cannot [Page 34] therein shew any expresse reference to that Statute of 13. E. 1. and can, at the most, but barely conje­cture it; so on the other side, Wee shall out of the penning and otherwise upon surer grounds con­clude the contrary. For first, in this case, regularly, if not necessarily, (where a later Statute in the sub­stance and meaning thereof wholly depends upon a former, and must have reference thereunto) the Parliament of 1. E. 3. would have made mention of this Statute of 13. E. 1. (as they did thereof) the next yeare following, when it was renued, but for keeping of the peace. Next, in wisedome it was fit­ting (if so be that they had intended a further re­establishment of the particularities of the kinds and proportions of armes mentioned in 13. E. 1.) that when they had a former Statute so punctuall there­in, they should not have thus left us for a true un­derstanding of their meaning, to a generall enqui­rie of the particular assize used for armes in former times.

But on the contrary, the Statute referring to the former usage, in the times of the Kings Progeni­tors (which being indefinitely spoken, Wee con­ceive, must be understood of all Kings times, as well before as after 13. E. 1.) the usage therein meant is but Consuetudo Angliae, the Common Law: [Page 31] and the Parliament could not, in all probability, in the mention of so ancient an usage, intend so late a Statute as this of 13. E. 1. which was but new in the particularity of the Assize, though antient in the Rule of charging, according to the quantities of e­very mans Lands & Goods, the former Assizes ha­ving been also different: Nor (considering that of Necessity, the severall kindes and proportions of Armes ever did, and must vary with the times) could they intend, that there ever was, for the times past, or could be for time to come, any such con­stant rule of any such particular assize concerning Armes, whereunto they could refer, as constantly used for the times past, or that might constantly en­dure for time to come: neither ever was, or can there be any other constant rule, then that generall rule of the Common Law (which can never faile) for the assessing Armes from time to rime, for the kindes, according to the present use; and for pro­portions, according to mens abilities.

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

[Page 42] And now that We have cleared this first part of the Statute of 1. E. 3. (as concerning the Arming a mans selfe) that it is not thereby intended, That the Subject should not be charged with Armes, other­wise then according to the Statute of 13. E. 1. We shall deliver what Our selves conceive of the mea­ning thereof; And it is thus.

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

But this course producing indeed little effect, in [Page 43] the time of King E. 2. partly out of the favour, which it is likely the Commissioners did finde, and partly by reason of the short remainder of His Reign, there was just occasion, both for Complaint and Reliefe in this next Parliament of 1. E. 3. And though the Particulars of the Petition in 1. E. 3. and the Answer out of which (according to the man­ner of those times) the Printed Act was made, doe not appeare, for the want of the Roll of that Parlia­ment, yet Wee may well judge thereof upon this occasion, happening within the compasse of about one yeare before, and thereupon conclude, (as for the true meaning of that Act) That the provision intended to be made, was onely against the excesse of the Commissioners; which rather justifies, then any way disproves the Lawfulnesse of such Com­mission. And so the sence of the Act, applyable to the Complaint, will be, That whereas the Com­missioners had over-highly taxed the Subjects, the Act provided, That they should not be otherwise charged, then as they had been in the times of for­mer Kings; and (according to Our Commission) moderately, and so as they might live still according to their former condition: as in like case of other Statutes against outragious Distresses and Amer­ciaments.

[Page 38] And although Wee take this to be the sence of that Statute, yet if any man shall thinke this part of the Statute of 1. E. 3. Concerning arming a mans selfe, to be the same with the words of the Statute of 25. E. 3. against constraining any man to finde men of Armes, &c. (which is the sence of this Declaration, which makes both Statutes to be to the same effect, and makes the inference against Our power of im­posing Armes upon them both) We shall not con­tradict him therein, being confident to make it evi­dent, that this Commission is no way contrary to the words or meaning of that Statute of 25. E. 3.

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

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

[Page 35] In which petition, they intending to shew the illegality of those Commissions, and to obtaine (as they thereupon did) a confirmation of former Acts to the contrary, do recite the Statute of 25. E. 3. 18. E. 3 c. 8. and that part of the Statute of 1. E. 3. which is against carrying of men out of their Coun­ties; and yet neverthelesse they wholly omit this Statute of 13. E. 1. and this first part of the Statute of 1. E. 3. concerning the Arming. Whereas it is to be presumed, they would have also recited this Sta­tute of 13. E. 1. if they had conceived the same to be (as this Declaration sets it forth) the certaine As­size for armes, and such a Statute whereto all the rest had reference, or any way materiall against part of these Commissions. But howsoever making use of the later part of the Act of 1. E. 3. against car­rying of the Subject out of the County, they would have made use also of this part of 1. E. 3. concerning the arming, and desired a confirmation thereof, as well as of the residue; and not thus purposely reje­cted it, if so be they had not, upon consideration, first resolved, that that part of 1. E. 3. was no wayes against the Commission.

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

By the Statute of 25. E. 3. the Subject is not to [Page 46] be constrained to finde men at Armes, &c. if it be not by common consent and grant made in Parlia­ment. But by this Commission the Commissioners have power, without consent or grant in Parlia­ment, to command those who are able of body and estate to arme themselves: and those who are impotent, but able in estate, to find Armes for others: (which the Declaration in some places calls finding Armes, and in some places finding men at Armes) and is therefore against that Sta­tute.

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

Neverthelesse for a more particular Answer; 1. as to the first of these powers in Our Commis­sion concerning Arming a mans selfe, Wee say, That this Act being against finding of men at Armes, [Page 47] or other souldiers, doth not any wayes intend to prohibit the compelling of men to arme themselves, (that is, their owne persons.)

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

Nor will it be sufficient to answer this, That the arming according to those Statutes is assented unto in Parliament, and so is within the exception of the Statute of 25. E. 3. For the consent in Parliament (intended by this exception) must be understood of future consent in Parliament, as well as the constraining men to finde Souldiers prohibited by the Act is meant of a future finding Soul­diers. And in the exception of the Statute [Page 48] of 25. E. 3. There is not onely to be a consent, but also a grant in Parliament, for so the words are (if it be not by common consent and grant in Parliament) but in those Acts of 13. E. 1. & 1. E. 3. there is no colour of a grant made at all. And this Statute be­ing declaratory of the Common Law, as appeares by the reason of the Act delivered in the Petition of the Commons in these words, Car cet est encoun­tre le droit del Realme. For it is against the right of the Realme, (which is as much as against the fun­damentall liberty of the Subject) this Statute of 25. E. 3. must bee construed as of the Common Law; and before any Statute

And secondly, as for the other part of Our Com­mission, which is concerning the charging those who are impotent in body, but able in estate, to finde Armes for others: If such finding of bare Armes had beene within the letter of that Statute, or the finding of a compleat Souldier by such a man, had beene within Our Commission; yet it would have beene a harsh construction, (and doubtlesse contrary to the intention of the makers) by generall words, which were meant onely for provision in the generall Case, thus to have spared him in this speciall and particular Case of impoten­cy, from contributing to the defence of the King­dome, [Page 49] dome, by finding another, as in his place; whilest he is as much, or more concerned then others, who must undergoe as much charge, and must also ad­venture their owne persons.

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

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

King E. 3. having had his Treasure exhausted by the French Warres,V. 18. E. 3. Rot. Parl. n. 11. 20. E. 3. Rot. Parl. n. 12. and others of that time. was upon that occasion in­forced to many hard pressures upon his Subjects; So that they had severall times bin charged, with providing and setting forth of Souldiers; and some­times with maintaining or paying of them: and this in so excessive a manner, as that it cost a Coun­ty sometimes at once a thousand pound; And all this was done with relation onely to a forraigne War, wherein the Title of the King to France was onely in question: and nothing which directly concerned the Kingdom of England: against these [Page 50] there was just cause, to make provision by some Law; especially now when the Wars were renew­ing: And accordingly this Statute was made a­gainst imposing such charges upon the Subjects.

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

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

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

And herein Wee agree, that the Parliament Roll, whereupon the Statute is framed, is truly set forth in the Declaration: yet Wee conceive that, in Substance, there is no more upon the Roll, then in the Print; though some passages may give some light for the exposition of these [Page 51] other Statutes of 1. E. 3. and 25. E. 3. therein con­firmed.

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

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

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

But the truth is apparently to be inferred out of the Roll, That upon those Commissions the Sub­jects were inforced to go, or to finde others to goe [Page 52] at their owne charges, not onely out of their pro­per Counties, but also (upon occasion of some in­surrections) into VVales, which at that time, and (untill the Act of Vnion 27. H. 8.) was to some purposes, at least commonly reputed a distinct Do­minion; as appeares even by this Parliament Roll, in these words,9. H. 4. R. Parl. n. 17. 6. H. 4. R. Parl. n. 9. 1. H. 5. R. Parl. n. 17. 2. H. 4. C. 10. Stat. 2. H. 4. cap. 20. That none of the said Commons be distrained to goe into VVales, or else-where out of the Realme, and otherwise: (the usuall phrase in severall Acts of Parliament, being also to this day, the Kingdome of England, and Dominion of VVales.) And such a Commission Wee may well admit to be against all those three Statutes, without impeachment of Ours.

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

Having thus farre proceeded in Our particular Answers unto the severall Statutes of 13. E. 1. 1. E. 3. 25. E. 3. and 4. H. 4. as they were appliable to the first Objection made upon them, against Our imposing of Armes upon the Subject. Wee [Page 53] shall, in the next place, proceed to the Answer of the other Objection made against Our Commissi­on, upon the Statute of 1. E. 3. and 4. H. 4. of Con­firmation: (For as to the other Statutes of 13. E. 1. and 25. E. 3. We doe not conceive, that they are, or can be meant unto this purpose.) Hereupon the Objection is this:

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

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

[Page 54] And secondly, as to the sence of the Statutes, We do deny, that the Subject is not compellable to goe out of his County, unlesse in case of an actuall In­vasion, by a forraigne Enemy.

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

[Page 55] Whereas, if in this recitall the word (And) had been put in place of the word, Of, or before it, both had agreed, and so the sence of the Statute, as to this matter of going out of the County, had been upon 4. H. 4. as it is upon 1. E. 3. That no man be compelled to go out of the County, but in case of necesity or coming of enemies: the word (And) in exposition of Statutes being most frequently taken for (Or) according to the Subject matter, and so the Statute had excepted two cases ne­cessity arising from within (by actuall rebellion) and necessity arising from abroad (by sudden coming of strange enemies:) this exception in both being absolutely necessary for defence of the Realm and according to the Common Law (of which the Statute is but declarative) and the practice both before and since. And indeed it could be no otherwise in property of speech, for there cannot be a cause of necessity of the sudden coming of enemies, but there is a necessity of de­fence against their coming.

And in this case We are to be guided by the Statute 1. Ed. 3. as it was Originally, as it is also truly set forth in the Declaration, and agrees with all printed Statutes both in English and French, [Page 56] & ancient Manuscripts, all of them derived from the Originall Statute Roll which was lost before 4. H. 4. (that which now remains being but a Transcript of a Transcript.)

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

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

Wherein it seemes to Us most plaine, that these words require no such Actuall Landing, or Entry of an Enemy into the Kingdom, before the Subject is Compellable out of his County. For the words of the Act are not (as to this point) when the Enemy is come, but upon the com­ing, not within the Realm, but into the Realm. And all men know, that in ordinary Speech, a man [Page 57] may be said to be coming into a place when he is upon a remove to a place; but most properly, when he is on his way, especially when he ap­proacheth, with an intention to enter thereinto, and in such sence these words of coming into the Realm must be taken in this Statute.

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

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

And lastly, as for those Commissions, which [Page 58] were damned in 4. H. 4. those had no resem­blance to our Case, nor are warrented by the Ex­ception of 1. E. 3. For that (as appeares before) the Subject was then carried out of the County not for defence of the Kingdom, as the Excepti­on of this Statute requires, but for suppression of an Insurrection in Wales, which was not then ta­ken as part of the Realm: and the Prayer of the Commons in 4. H. 4. made upon that Occasion, and therein grounded upon 1. E. 3. was not meer­ly because they were carried out of the Counties, but because they were carried out of the Realm in a Service, which was not for the necessary de­fence thereof.

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

First, as concerning 13. E. 1. since that (as We have before observed) the Statute was made on­ly with relation to the keeping of the peace, it implies, that there is another rule in the matter [Page 59] of imposing of Armes for defence extraordina­ry.

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

To this purpose We note, that in the Statute there are two distinct propositions joyned toge­ther, one against the Arming of the Subject, the [Page 60] other against going out of the County; And the clause which is next subjoyned is an exception Sinon pour cause de necessite, &c. Unlesse it be for necessity, and the sudden coming of strange enemies. Which exception, upon such admittance, is not only appliable to that last clause before, concern­ing the going out of the County, but as to the Arming: The sence thereupon also being thus; That though in case of ordinary defence, the Subject be not compellable to bear other Arms then ac­cording to 13. E. 1. as neither to go out of the pro­per County; yet for the extraordinary defence of the kingdom, in case of necessity (wherein more must be done then ordinarily) both, Arms are to be imposed by other rules then in 13. E. 1. and also the Subjects are to go out of the County; For so it followeth in the next words of the Act; which are these, And then it shall be done, as bath been used in times past, for the defence of the Realm. And this sense, upon this admittance, cleerly appeareth out of the course of former times in such cases, to which the Statute doth refer.

As for 25. E. 3. (besides that the Declaration faith it is to the same effect with 1. E. 3. and was made with relation to a forraign war, as We [Page 61] have observed,) if (as the Declaration must ad­mit) that the exception of finding men at Arms &c. by Common consent, and grant in Parlia­ment, be intended as well of Acts of Parliament past as to come, then Our Commission, in the power of imposing Arms, being warranted by 1. E. 3. is also warranted by that Act of 25. E. 3.

And for 4. H. 4. (besides what We have be­fore observed, upon the omission therein of the first part of 1. E. 3. concerning imposing of Arms, and that it applies 25. E. 3. but to a forraign war) the generall sence, and Judgement of that Parlia­ment, excepting then only against other Com­missions, seems to allow of this; for that other­wise, it is not to be imagined, that immediately in the same yeer, there should issue out a Com­mission of Array, and in the next yeer, there should issue out that other which was corrected in 5. H. 4. both of the same form, and the latter bearing Teste the day of the Summons of the Par­liament of 5. H. 4.4. H. 4. rot. Parl. part. 2. m. 10. And that at that Parliament, though some amendments were made in it, yet no exception should be taken to the legality of the powers: whilest (as the Declaration ob­serves) it is probable, That many of the House of [Page 62] Commons, and it is certain that most of the House of Lords, were members of the Parlia­ment of 4. H. 4. and knew the meaning thereof.

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

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

The first in time is upon the Statute of 4. and 5. P. & M.c. 4. which settles an assize and propor­tion of Men, Horses, and Arms, which every man was to finde; which the Declaration saith was without Question, a repeale of this Statute of 5. H. 4. And accordingly, We shall take that first [Page 63] into consideration, For though upon the repeal of that Statute by I. Jac. c. 25. the Declaration a­grees, That Our Commission, if once setled by 5. H. 4. is now again in force, Yet an inference is made from thence, That the Parliament of 1. Iac. would never have repealed that Statute of 4. & 5. P. & M. if they had thought that any such power of imposing Arms, as is in the Commission, would have been thereupon revived.

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

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

As to the words, They extend onely to a repeal of such Acts which do appoint particular Assizes (or Assessements) of Arms: all which upon that Statute of 4. & 5. Ph. & M. (which appoints a new Assize for kinde of Arms and proportions) [Page 64] would be either contrary or altogether uselesse. And to that purpose the Statute speaks of repea­ling of Acts concerning keeping or finding of Horse, Horses, or Armour, which, as it must be meant of Acts concerning keeping or finding of Horses in particular for kind or number; So as concerning (armour) in generall, it must, by the constant Rules of construction of Statutes, be meant of Acts of the like nature as the former, that is, Acts concer­ning the appointment of some particular ar­mours, as a Gorget, a Brest-plate, and the like, such as were the Statute of 13. E. 1. and 33. H. 8.

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

And if the Statute of 4. and 5. Ph.& M. were meant of such Statutes, as speake of finding Arms in generall, it had as well repealed the Sta­tutes of 1. E. 3. 25. E. 3. and 4. H. 4. as this Act of 5. H. 4. [Page 65] which no man will say was ever intended.

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

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

And if this Statute of 4. & 5. P. & M. had ta­ken away the first Powers of the Commissio­ners concerning arming, yet had it not taken a­way the other severall and independent Powers of Arraying, Training, Mustring, or Conducting [Page 66] those men so furnished according to that Statute, but that they had remained to have been execu­ted (at least by a distinct Commission which might have been issued at pleasure for that pur­pose.)

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

But neither by that nor the other Statute of P. & M. cap. 2. is there any new authority given to the King to grant Commissions for Musters, but the same is admitted to continue as not repealed. And as to that point of appearing at Musters, We [Page 67] made use of that Statute of 4. & 5. P. & M. cap. 3 in Our Proclamation: And doe wonder how the Penner of that Declaration could imagine, We meant any such further use therein upon that Sta­tute, as the Declaration sets forth.

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

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

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

The Statute of 13. E. 1 made an assize of Arms [Page 68] for the severall kindes and proportions according to mens severall estates. Then 5. H. 4. enacts this Commission with power to assesse men accor­ding to their abilities. Afterwards 13. E. 1. is repea­led by 21. Iac.

The argument hereupon in the Declaration is made thus:

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

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

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

[Page 69] For the words, There is no mention of 13. E. 1. either in the Act or Commission, but the words of the Commission are generall, for imposing Arms secundùm statum & facultates; According to every mans degree and ability, without limitati­on, of the kinde of Arms, or particular severall proportions of estates.

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

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

And as for any restraint of those generall words of Our Commission, by any construction of Law to the particular assize of 13. E. 1. We say, That [Page 70] though a subsequent particular Act may restrain the generall words of a Commission (as We have said before; upon the Statute of 4. & 5. Ph. & M.) because the subsequent act, as it may take away, so it may limit any Power given either by Common Law or Statute, yet a precedent parti­cular Act (upon the same reason, because it hath no such power) doth not regularly restrain the generall words of a subsequent Statute, which hath Power to controll the former; and (as in Our case) where the meaning appears to be as large as the words cannot possibly restrain them.

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

But, admitting that this Commission was, by construction of Law, necessarily to be regu­lated [Page 71] according to 13. E. 1. whilest that Statute was in force, Our answer is, that neverthelesse this Commission did not fall by the repeal of that Statute.

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

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

In this case We doe agree, That if the Com­mission had expressely referred to charge accord­ing [Page 72] to that Statute of 13. E. 1. then that Commissi­on could have been no longer of force then the Statute had continued. For then it had been no more in substance, then if the powers had been but particular, to charge certain Arms, and in certain proportions according to that Statute. And in this sence We must agree with the Decla­ration, That a Commission being so grounded upon a Statute, upon the Repeal of the Statute, both fall together.

But in this case, (thus admitted) where the Commission is generall, and if 13. E. 1. had never been, must have had its full operation, according to the words, both for the kind of Arms and pro­portions, and was regulated but by a bare con­struction of Law, both for Arms and Proporti­ons by 13. E. 1. which the Parliament might think fit to be a rule for that time; it seems strongly to follow, that when 13. E. 1. (which was the only impediment why it did not work according to the extent of the words) is repealed, the operati­on of the Law upon this Commission, by force of that statute, must likewise cease: and the Com­mission must be construed according to the words, the rather for avoiding of this mischief, [Page 73] that otherwise the Kingdom should be without all necessary means to put it into a posture of de­fence, which that Act did intend principally [...], perpetually to provide for.

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

These then being the Powers at Common Law, As it is cleer they are not taken away by any affirmative Statute, (such as 13. E. 1. seems to be:) So if We shall admit (as strongest against Our self) that there were any negative words in this Statute or any other Statute grounded thereupon, that the Subject should not be compellable to be armed otherwise, (which other Statutes (ac­cording [Page 74] to the ground rightly taken in the Decla­ration) must necessarily fall by the repeal of 13. [...] 1. Then that Statute being repealed, the Commission thus freed of those Statutes, re­mains in full force as it was at the Common Law.

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

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

The Objection made upon it stands thus. The Petition of Right sets forth, That by the Lawes and Statutes of this Realm, the Subjects have in­herited [Page 75] this Freedom, That they should not be compelled to contribute to any Tax, Tallage, Aid, or other like charge, not set by common consent in Parliament. And after complains, That di­vers charges have been laid and levied upon the People by Lords Lievtenants, Deputy Lievte­nants, Commissioners for Musters, Justices of Peace, and others, by command or direction from Us, or Our Privy Councell, against the Laws and free Customs of the Realm, which the Declara­tion alleadgeth to be the breach of those Laws.

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

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

[Page 76] For Our cleerer answer, We shall set down the summe of the Petition, for so much as concerns the unlawfull charging of the Subject. And it is this.

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

And Our answer to the Objection stands thus.

First, that whatsoever sence any words of the Preamble may seem to import, yet without que­stion, [Page 77] there is no more in this Preamble then is after contained in the Prayer: So if Our Com­mission be not against the Prayer, there can be no Argument against it drawn out of the Pre­amble, or if in truth there were more in the Pre­amble then in the Prayer, (whereunto only the Royall assent extends,) yet nothing could bind­ingly be concluded thereupon (as We shall fur­ther shew upon occasion.)

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

Upon the Case thus truly stated, it is cleere, That here is no yeelding or making of Gift, Benevo­lence, or Loan; And as for making or yeelding any Tax or other like charge, though it be true, That this arming a mans self, or finding Arms for ano­ther, cannot be done without Charge: Yet We appeal to every mans understanding, whether [Page 78] Our Subjects can, upon this Commission, be said to make or yeeld (for so are the words) any Tax or other Charge against the Petition, any more, then if We command a City to repair their Walls, or a Levell (putting the Case before any statute, to take away all colour of evasion) to repair the Sea-banks, when they were in decay, being no particular advantage to Us, but for the Common good of themselves.

The truth is, That albeit the imposing of di­vers charges, & commanding divers Acts draw­ing charges upon the Subject, though possibly for their advantage, are void in Law: notwith­standing it doth not follow that they are void as against this Petition. For the Petition of Right, as against the charges therein mentioned, is onely to be intended of Money, or other thing valuable, and to be parted with to or for Us, or Our advan­tage: such as are all the charges more specially mentioned in the preamble and Prayer, as that of Gift, Loan, and Benevolences, And such as were those Charges intended in the Preamble under the generall expression of divers other Charges imposed by Lord Lievtenants, &c. which We think is very well known to most Counties, to [Page 79] have been meer Pecuniary Payments, and which We ought to have born. And for the other char­ges, that is, of Taxes, Tallages, Aydes likewise mentioned, which as to this purpose are but Syno­noma, and of one signification, they are meant of money or other things valuable, and for the King; and so used in the old Statutes, and had been in former times imposed upon the people, without Act of Parliament; and accordingly all of them are so to be expounded in the Preamble. And the Prayer of the Petition saith nothing expressely against the Commanding the Subject to do a thing which may be necessarily of expence or Charge, (wherein the Act is onely intended, and the Charge but a necessary Incident) but the Prayer is onely against the compelling of the Sub­ject to yeeld, or make those kinds of charges: So as the cleer sence of the Petition, both according to the occasion of complaint therein mentioned, and the Laws whereupon it is framed, as well as the propriety of the words, is only against draw­ing from the Subject, either money or money­worth, by any of those particular charges therein mentioned, or any other charge of like nature (under what specious title soever) for the Kings [Page 80] advantage, which the more plainly appears, for that the charge must be yeelded or made, as upon Gift, Loan, &c. which must necessarily be inten­ded unto some person, and no other person can be here colourably intended but the King.

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

As for the meaning of the Petition inforced in the Objection from the Charges by Lord Liev­tenants, and others complained against in the Preamble, sure We are that those must be such in the particular, as are after contained in the gene­rall words of the Prayer, to which We have an­swered before; And though it be to this purpose said in the Declaration, That those Charges by Lord Lievtenants and others, were meant of char­ging [Page 81] of the Subject with Arms, certainly no such thing can appear in the Petition, which speaks but only of divers charges, but names none in par­ticular; nor can there be any other assurance that the Houses did intend any such thing, but by Votes, wherein they onely speak: and if any such Votes had been, We doubt not but We should have found them inserted in this Declaration: And a particular complaint of so great a grie­vance (as Our Commission is made to be) would have been expressed in the Preamble of the Peti­tion, with the Quotations of Statutes to the con­trary, as was done concerning other grievances. But in truth it is well known, That about that time, upon occasion of Our wars, there were divers other charges imposed by Our Lievte­nants, and others, of a far differing nature, most of which were by direction from Us or Our Privie Councell, according to the exigency of the time and some former practice.

And We do beleeve, that there was at that time neither complaint or occasion of complaint against the imposing of Arms for home defence of the Kingdom. Howsoever We are sure that no such complaint was particularly represented [Page 82] unto Us, or Our Answer intended thereunto.

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

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

For it is plainly to be observed, that the Com­mons did then take into consideration the gene­rall grievances of the Kingdom, more particu­larly, concerning Military affaires, and therein [Page 83] the actions of Lord Lievtenants, and Deputy-Lievtenants with their Commissions and pow­ers, and their exceeding of their power, as ex­pressely the billeting of Souldiers, and the pay­ment of Billet-money, Muster-masters fees, and others of that nature, were then in dispute. And although the two Houses could not but take no­tice of the imposing of Arms upon the Subject by Our Commission, of Lievtenancy, & their pow­ers to Levy, call together, Arm, Array, Train, and Muster Our Subjects inhabiting in Our severall Counties, and to conduct and lead them against all Our Enemies, and all Rebels and Traytors, from time to time, as need should require, (in which particulars they contained the powers of Our Commission of Array:) Yet the Complaint was not made against them, for what they did by vertue of their Commission (no more then against the Justices of Peace, though complained of, together with the Lievtenants) but for mat­ters wherein they did exceed their Commission, upon the Command, or direction from Us, or Our Councell; the Petition throughout distin­guishing betwixt such Commands, or directions, and Our Commissions.

[Page 84] So that We conclude, here was not only an admission, but an approbation of those powers, by that Parliament.

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

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

And upon this Preamble, the conclusion is [Page 85] made in these words, That this, Commission is di­rectly contrary to this Declaration is so evident, that it requireth no application.

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

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

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

And the generall words, (giving power to the Commissioners, for leading them to the Sea­coast or elsewhere (as We have often repeated) are with these limitations: They are to lead them, but when there is imminent Danger of enemies, for defence of the Kingdom; and then [Page 86] only they are to be led to such places, as shall be necessary for the expulsion, vanquishing, and de­struction of the said enemies, And this is a case of necessity both within the words of this recitall, and according to the sense of the same words, in the Statute of 1. E. 3. and 4. H. 4. (therein meant) as We have before shewed.

And thus we might leave this Objection, but that it implies a matter of a greater consequence then plainly appears. That recitalls of the Law, in Preambles of Statutes are binding; For in this Objection, this recitall is called a Declaration of the Law and Our Commission sard to be contrary to that Statute, and it further implies, That even in the greatest and most horrid Rebellion, the Subject cannot be compelled out of the County, for the suppression thereof. But to this We an­swor, That the difference is apparent, between an Act of Parliament declarative, and a recitall in a Preamble: For such an Act (in any matter though mistaken) being assented unto by Us, and Our two Houses, is equally binding (as having equall authority) with an Act introdu­ctive of a new Law, But the recitall in a Pream­ble, is no part of the Act (the Royall assent being [Page 87] only to that, which is expressely or tacitely pray­ed to be enacted:) Nor can it any wayes so much as imply Our opinion: For otherwise, Kings must be inforced oftentimes to deny a good Law, for an ill Preamble; The consequence whereof is great in such an Act as requires expe­dition, where a Bill once denyed, is not regularly to be offered again in that Session of Parliament.

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

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

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

[Page 88] And the truth is, the occasion of this Act, now urged against Us, appears to be for the service of Ireland, and the intention of it (for so much as is the enacting part) was to take away all question concerning the pressing of the Subjects of Eng­land for the suppression of the Rebellion in Ire­land. And so concerned forraign service, and not home defence, either against Invasion of E­nemies or Rebels.

And thus far the work of the Declaration hath been to overthrow Our Commission by Statutes alleadged to be directly against it. There remains yet some other Objections drawn from [Page 89] the opinion of former Parliaments, and the pra­ctice of Our selves and Our Predecessors, and those not directly, but by inferences. But these, as we shall shew, are so farre from concluding against Our Commission, that they rather prove the contrary.

The first of these Objections is upon the Sta­tutes of 1. Jac. c. 25. and 21. Iac. c. 28. of Repeals: And is thus, That the Statute of 4 & 5. Ph. & M. cap. 2. having repealed this Commission (for so the Declaration supposeth) They had shewed little care of their own and the Subjects liberty, in the Parliament of [...]. Iac. to repeal that Statute thereby to revive the power of this Commissi­on, which would have subjected the people to far greater bondage: and from thence inferreth, That it is not probable that the Parliament of 1. Jac. would have repealed,. 4 & 5 Ph. & M. As lik [...]wise from the Statute of 21. Iac. (which re­pealed the Statutes of 13. E. 1. and 33. H. 8.) That it is not probable, that the Parliament of 21. Jac. would have repealed those Statutes (which in a moderate manner proportioned the Arms every man was to find in certainty:) And suffer an Act (meaning this of 5. H. 4.) to continue, which esta­blished [Page 90] a power in the King without limitation, not only to impose Arms, but to command the persons of the Subjects at pleasure.

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

And now We shall return this Objection thus:

That those Parliaments of 1. Jac. and 21. Iac. would have shewed little care of the safety and defence of the Kingdom to have repealed those Statutes which made provision for Arms, if they had thought there were no Law or Power left in the King to charge men with Arms for defence [Page 91] of the Kingdom, (as the Declaration affirmes the Law now to be.)

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

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

[Page 92] To this We answer, That the particular Arms and proportions of Arms, were then before ap­pointed by the Statute of 4. and 5. Ph. & Mar. Cap. 2. under certain penalties upon those who should be defective, and so a great part of the care of the Commissioners of Array was supplyed by the provision of that Statute; and the Commissions of Array being not so proper, but in time of Dan­ger, and of a larger extent, then the power of mustering, a Commission of Muster (which is part of the power of a Commission of Array) would then serve the ordinary turn: and for eve­ry ordinary default, but at a Muster, in a time of no Danger, the punishment by 4. and 5. Ph. & Mar. cap. 3. was great enough.

And for return of this Objection, We say, (as We observed before) That this Statute gives no new power, to grant Commissions for Musters, but admits the power to grant such Commissi­ons to have been in the King before that time. And whereas the Statute of 13. E. 1. appoints no other Officers but the Constables for view of arms, it appears by these Statutes of Phil. and Mar. that the King might appoint His Commissio­ners: which he could not, if this power of Arms [Page 93] had been wholly grounded upon that Statute.

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

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

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

For, as for the grievousnesse, we say these Commissions were such as had been long used in the happiest times of Our Predecessors, and continued to Our Time: And such grievances, as did, or might arise in the execution of these Commissions, not warranted by them, are no [Page 94] cause to quarrell at the Commissions themselves, more then at the Commissions of Peace, because some Justices of Peace have exceeded or abused their authority. And howsoever, Those powers wherein they exceeded not Our Commission of Array could not be grievous, as we have already shewed.

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

But if We should, for this time, admit the [Page 95] grounds of this Objection, That Our Commis­sions of Lievtenancy had been such as this De­claration would have them, yet it is but a very inconsequent Argument, That those Commis­sions would not have issued, so often, and been so much pressed, if the Commissions of Array had been Legall.

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

But on the contrary, (that we may retort this Objection also,) since that the Commissions of Lievtenancy, not much differing from the Com­missions of Array in Power, (as the Declarati­on saith) and in many things exceeding them, have so often issued in the reignes of severall of Our Predecessors, & were allowed by the Judges of those times, obeyed without dispute, and not questioned in the Parliament of 1. Iac. or 21. Iac. nor were these powers wherein they agreed [Page 96] with the Commission of Array complained of by the Petition of Right, but rather admitted and allowed, as We have already shewed. It may ve­ry well be inferred that both the Commissions of Lievtenancy and of Array, (as to those powers at least wherein they agreed) were Legall and far from being any grievance to the Subject.

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

And now upon the whole matter, the state of Our case is this. It is Voted by Our Hou­ses [Page 97] of Parliament, That Our Kingdom is in imminent danger of destruction from enemies a­broad, and a discontented Party at home; and that there is a necessity to put Our people into a posture of Defence.

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

And We have shewed, That the Powers of these Commissions, are grounded upon the very principles of government, and that without them, We could not defend and protect Our Sub­jects, (as We are bound by Our oath at Our Co­ronation) That they are warranted by the An­tient Common Law, allowed by the constant [Page 98] practice of former ages established by the Parlia­ment of 5. H. 4. (which caused a Copy of these Commissions to be entred upon the Roll, as a Rule or President for after times) and are not repealed, or altered by any Statutes now in force.

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

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

And since Our two Houses (denying Us [Page 99] this Power) without Us, and against Our con­sent, have made Orders (which they call Ordi­nances) for compelling Our Subjects to be Ar­med, Trained, Exercised, Mustered, and condu­cted, and send for Our Subjects as Delinquents, and imprison them, for refusing to obey such Orders; It is apparent, That what this Declara­tion saith against Our Commission, without just ground, is true indeed of those Orders, that is, That they are contrary to the Law and Customs of the Realm, destructive to the Liberty, and Property of the Subjects, and contrary to the Petition of Right (as it is expounded in this Declaration,) as also against other Statutes.


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