FIve or ten thousand or more Persons, aggregate and assemble themselves together, in a War­like manner, with Officers and all provisions of Warre, and goe from Nottingham towards London, kill divers of the Kings Subiects, rob, steale, and take away the Goods of others, breake into Towns and Honses by force, and imprson divers.

Upon this Case there are divers Quaeres.

Quaere. VVHether others of the Kings Subjects may not by the Lawes of this Kingdome of England, by all meanes whatsoever, whether by raising of Armes or otherwise, endeanour to their uttermost, to appre­hend, oppose, quell, and vanquish, the aforesaid persons.

[Page 2] Answer. IT is not onely lawfull but commanded by the lawes of this Kingdome, that all persons able, should by all or any meanes whatsoever, endeavour to apprehend op­pose, quell, and vanquish the said persons, and if any pre­sent at the aforesaid outrages, doe not without com­mand, or absent doe not upon command, endeavour to apprehend, oppose, quell, and vanquish the said persons; they are punish able by the Lawes of this Kingdome.

The Proofe. 1 First, for that this assembling and demeaning them­selves in this manner, as the case is put, is a breach of the Peace, and that in the highest degree; now every man may cake up Armes, to preserve the Peace, nay ought, if otherwise it cannot be preserved, though it be onely in danger to be broken, in particular private Towns, and by a small number of persons: and therefore if two fall out and fight, and the one killeth the other, and a third man stand by, and doe not endeavour to part them, or prevent the breach of the Peace, this third man is to be amerced, 3 Edward 3. Itinere Northampton, Corone. 293. But by M. Lambert, hee is to be fined, and imprisoned, Lamb. Justice of P. pag. 133.134.135, &c. Much more, and a Fortiori, where the peace is broken, with a high hand, and in such transcendent manner, as the present case is put; and every publike Officer as Sheriffs, Constable, &c. May and might to raise and leavie the power of the County, Hundred, or Towne, to repressed; or for the apprehending of Traytors, Felons, &c. 3. Hen. 7.10. Dalton Office of Sheriffes, 136. And if they faile in perfor­mance of their duties therin, they are to be fined and im­prisoned; [Page 3]and if any refuse to ayd them therein, they are in like manner to be punished.

2 Secondly, for that this assembling and demeaning themselves as aforesaid, is in terrorem populi Domini Regis, in amazement of the Kings Liege-People, and so a riot, rout, and unlawfull assembly. Now if the num­ber of three or more persons, assemble themselves toge­ther, to do an unlawfull Act, all persons in the County where the same assembly is, being able to travell, are to ayd and assist the Iustices of the Peace and Sheriffs to resist, repell, and take such offenders, and that under paine of imprisonment, fine, and pansome by the statute 2 Hen. 5. cap. 8. a fortiori, where unlawfull Acts are done, as in the case put.

3 Thirdly, for that this assembling and demeaning of themselves as aforesaid,is by the Common Lawes of this Kingdome high Treason; every Rebellion is high Treason, and so was it resolved and adiudged by all the Judges of England, pasch. 39 of Eliz. of that multitude then assembled in warlike manner to pull down Inclo­sures in those places, where they had no colour to claim Common, and so was adiudged by the whole Parlia­ment, 29 Hen. 6. cap. 2 In Cades Rebellion, that he was a Traytor, and the leavying of Armes within this King­dome in warlike manner without lawfull cause, is Re­bellion, and so Treason; and so it is resolded, A bridge­ment of Dier 13. Eliz. 298.

Now by the Lawes of this Land, all are bound to ap­prehend and take all Felons and Traitors, under the penalties beforementioned; yea, I conceive, under grea­ter. For if A commit Treason, and B know it, and con­ceale it, it is misprision of Treason, and he shall forefeit [Page 4]therefore all his goods, and the profit of his Lands du­ring his lite; & much more where he doth ret use toasst & in apprehending, and punishing the offenders▪ If the assemblers to pull downe Inclosures aforementioned, were adiudged Traytors, much more these Rebels as­sembled to pull downe the Inclosures, namely the fence of our Religion, Lawes and Liberties, viz. the Parlia­ment, which is the onely Fence and Guard we have in this Kingdome, against ruine of Religion, Lawes, and Liberties, the generall medicine, to cure all our grievan­ces, the life of our lives and lively hoods.

And that this is the maine intention of this Rebelli­on appeareth, not onely by their own speeches, but also for that.

1 First, they perswaded the King to absent himselfe from the Parliament, thereby or nullifie (as much as in them lay) the benefit and profit, that the Kingdom might receive thereby.

2 Secondly, to detaine divers Members of both Hou­ses, from returning to the Houses whereof they were Members.

3 Thirdly, to withhold divers Delinquenes from be­ing brought to answer their crimes.

4 Fourthly, to go to the House of Commons to demand the five Members, with such an attendance, as might have been the ruine and death of all that had apposed.

The principall Case, and all the other Cases in answer thereunto ate put, as supposing the King not commanding, and then the conclusions thereupon are so apparent, that all men that have their right sences will agree the same to be the Common Lawes of this Kingdome; therefore the Case is further put:

[Page 5] Admit that this Assembly is by the Kings com­mand, and that others are prohibited by the King to oppose them.

Quaere 2. VVHat alterations are thereby made of the Conclu­sions aforesaid.

Answer. NOne at all.

1 First, it is not to be beleeved that they have the Kings command, for that His Maiesty hath oft promised by divers Declarations, and also protested by his solmne Protestations, that he will rule and governe his Sub­iects by and according to the knowne Lawes of this Kingdome; both which Promises and Protestations were broken. if his Maiesty should command the assem­qling of the foresaid persons, in manner as aforesaid; or to doe or commit the outrages aforesaid, being both un­lawfull, and contrary to the knowne Lawes of this Kingdome, as before is apparently manifested.

And therefore His Maiesties command by word is not sufficient, but it must be in all Cases to iustiste the party by or from some of his Courts of Iustice, or under some of His Maiesties Seales thereunto appointed, Co. Ma. Cha. 186. b. 187. for every His Maiesties Seales are appointed to each Court, as the Lawes of this King­dome; have disposed, and every Seale will not serve in every case; and therefore untill the foresaid persons pro­duce such warrant as is according to Law, it is not only [Page 6]lawfull but commanded by the Lawes of this King­dome, that all persons able, should by all, or any means whatsoever, endeavour to apprehend, oppose, quell, & vanquish the aforesaid persons assembled as aforesaid, under the name of the Kings Army, which is proved by a familiar Case, viz. a Capias issueth to the Sheriffe of S. to take A. ad respondendum, &c. and before the taking, A. procureth a protection or a Supersedeas, the Sheriffe of S. may iustifie the taking of him, untill the shewing of the Protection or Supersedeas by A. unto him, and that the Protection or Supersedeas do appeare legall, both for the matter, manner, Court and Seale; And if the She­riffe doe not take him having fit opportunity, an Action of the Case lyeth against him, he hath broken his Oath, and is to be amerced, notwithstanding these counter­mands concealed or kept in the pocket, and so in the pre­sent case.

2 Secondly, but admitting they have a command from the King, under His Maiesties great Seale, or any o­ther legal Seale, yet that command, put it as strong as may be, maketh no alteration of the former conclusions:

Because it is already proved, that this assembly, and demean or in it selfe considered, is against Law in case the King command it not; now if a thing be in it selfe against Law, the Kings command doth not, nor cannot make it lawfull: For the Kings commands or prohibi­tions, against the knowne Lawes of the Kingdome are ipso facto void, and so saith Bracton, Nihil aliud potest Rex, quam quod de jure potest, and the rule is generall as well in the Kings case, as in the case of common persons, Quod contra legem fit, pro infecto habetur, and the Actors and Erecutioners of these commands, [Page 7]are to be punished, as if no such command or prohibiti­on were.

For instance, The King commands A to arrest B without cause, (which is an unlawfull act) and A accor­dingly doth arrest him; B may have an Action of false imprisonment against A notwithstanding the Kings command, 16 Hen. 6. [...]mrance de faits, 182. So in like manner, if the King should command A to kill B. and he accordingly should kill him, T. H. 8. Coron. 229.19 H. 6.63, &c. A may be indicted at the Kings suit therefore, notwithstanding the Kings command, and executed for the same, as if no such command had been.

In like manner, if the King should command A to kill a Iudge of Assize, while he is doing his Office, and he accordingly kill him, this is high Treason, notwithstan­ding the Kings command, and the Indictment shall be contra Legeanciae fuae debitum, against the duty of his Allegiance; for his duty of Allegiance is onely to obey the King in his commands according to Law, and not contrary to Law: and if this be Treason, as it is by the Common Law, to kill a Iudge as afore, then much more hainous Treason is it, to kill the Iudges of that Iudge, which are the Lords and Commons in Par­liament.

The same Law is, if the King command A to take away the Goods of B without iust cause, and A doe ac­cordingly, A shall therefore be punished, as if no such command had beene, as appeareth by the present expe­rience of the late Sheriffes, for taking away mens Goods for the Shipmoney; and by the Officers of Monopolies, who have not in any manner beene xcu­sed [Page 8]for that they had the Kings Command: and so is the ancient Experience of former times. 42 ass. 5.

If the Rebels in Ireland had, (as they pretend they have) the Kings Commission for what they do, it would not in any manner abate or mitigate their offence, but that it should be high Treason, and they to be apprehen­ded and proceeded against as if they had no such Com­mission: and the same Law is in the case put, of the per­sons assembled here in England, in like Rebellious man­ner aforesaid.

3 Thirdly the King cannot by his command under the great Seale or otherwise, deny, hinder, or prohibite iustice to any of his Subiects, or any iust thing, to them or for them, to be done; but this command unto the Ca­valiers, to rob, spoyle, and take away mens goods, kill, imprison, and wrong their persons, without making satisfaction for them; is a denying, hindering, and prohi­biting iustice to them, and for them.

As if the King grant a protection under the great Seale to I. N. directed to the Sheriffes, and other Officers, commanding them that they shall not arrest the said I. N. during one whole yeere, next ensuing at any mans suit, and this per praerogativam nostram quam nolumus esse arguendam; yet if the Sheriffe doe not arrest the said I. N. upon processe against him, he shall be amerced, and this command or prohibition of the Kings shall be no excuse to him; and so is Co. Mag. Chart. 56. where particular cases are put to that purpose.

[Page 9] Quaere 3. BUt suppose the aforesaid persons, calling themselves the Kings Army, were no Peace-breakers, Traytors, nor Felons, (as before we have proved them to be) yet being so declared de facto, by the Judges of the Supreame Court, viz. the Parliament: Whether are the Subjects of this Kingdome bound, by the Lawes of the same, to give credit to their Judgement, and so farre to beleeve them, as to endeavour to apprehend such persons so declared, and proceed against them accordingly?

Answer. THey are.

1 Because the iudgement of a Court of Record is quasi Jurisdictum, that is, the sentence or dictate of the Law, for the Court is, as it were, the mouth of the Law, by which it speakes to all that are within the iurisdiction of it; now we are bound to believe the sen­tence, or dictates of the Law; when they are thus utte­red unto us▪ without disputing or examination; for that these Courts are intrusted by the Lawes, to utter and expresse their sence in the cases, that are within their cognizance and iurisdiction.

Therefore if the Lords and Commons in Parlia­ment Assembled, make an Ordinance or Declaration, that is their Iudgement, and bindeth all persons with­in the Iurisdiction of the Court, untill it be reversed, which must onely be done in Parliament, and so is the expresse booke of 8 Hen. 4.14.

[Page 10] 2 It all persons, within the Iurisdiction of any other inferiour Court of Record, within this Kingdome are bound to beleeve and obey the Iudgement of the same Court, untill it be reversed: then much more, those with­in in the Iurisdiction of the highest and supreame. But all persons are bound by the Lawes of this Land, to be­leeve the Iudgement of inferiour Courts, that are with in the Iurisdiction of the same, untill it be reversed. For Example:

If I. S. a man free from all Felony, be outlawed for Felony, which is but a Declaration by and before the Coroners, which are of the most inferior sort of Iudges of Record, in this Kingdome; every Subiect i [...] bound, so farre to beleeve, and credit the said Iudgement to be true, that he is not to receive, relieve, or comfort the said J. S. if he doe, knowing the said Outlawry, or living in the County where the said Outlawry was proclai­med, whereby he is bound to take notice thereof, at his perill; he is accessary to the said Felony, 12 E. 2. Coron. 377. which is cited 19 Eliz. dy. 355. And the very case of Attainder by Parliament is put, 1 Hen. 7.4. v. where di­vers then elected as Knights and Burgesses of the then intended Parliament, had beene attainted by a former Parliament, held 10 Rich. 3. in which booke it is resol­ved by the Iudges there, that the persons so attainted, could not by the King, or otherwise be discharged ther­of, but by reversing it in Parliament, though it were done in the time of an Vsurper, and without any iust cause: And no doubt, if any had apprehended any of those persons, so declared Traytors, before the reversal of the Attainder, or the said I. S. Outlawed as aforesaid, he might well iustifie it, and was not any way for to be [Page 11]punished: Nay, had any refused to apprehend any of those persons attainted, or I. S. outlawed as aforesaid, he should therefore be iustly lyable to the punishment aforesaid.

The Law of England giveth so much credit to every 3 Court of Record; that no averment can be taken against it, none shall be admitted to contradict it, or to say it is not true; no not the King himself, but it must remaine valid and of force, untill it be reversed.

And therefore it was lately held, by the Iudges of the Kings Bench, in the Lord Sayes Case for the Ship­money; that it being resolved by the maior part of the Iudges of England in the Exchequor Chamber, for the King; That that Iudgement standing in force, the same matter was not to be brought in question againe, nor to be disputed though betwixt other parties; and therfore refused to heare the Lord Sayes counsell, except they had new mater not resolved before: and some of the Iudges then affirmed, that that, & every such Iudgement by all the Iudges, is as it were an Act of Parliament to bind the Subiect, and is in as much force untill the, same be reversed, which must be in Parliament, and no where else as accordingly since, the said iudgement in the case of Shipmony hath been so that as all men were bound up, by the said Iudgement, now by the reversall therof all men are at large, & the King therby as much bound as the Subiect was before; Whereupon we may see how deepely it concerneth the Subiects of this King­dome, to have frequent Parliaments, to review the Iudgments of interiour Courts, & also to have honest and able Iudges chosen into the places of Iudicature; and that such of them as offend may be punished accor­ding [Page 12]to their demerit, and that, that punishment may not be dispenced with.

4 If the verdict of twelve men, by the Lawes of this Kingdome, are obligatory, and binde the King & Sub­iect perpetually where an attaint lyeth not, and if an attaint lyeth, there it is contradicted by foure and twenty, where the former was but by twelve only; then it ought not to be marvelled that such esteeme is had of the Iudgement of the Iudges; but a verdict bindeth, as appeareth by the resolution of a question propounded by King Hen. 4. to Gascoigne, his then Chiefe Iustice and remembred 7 H. 4.14. which was, That one killeth ano­ther in the presence of the said Chiefe Iustice, & a third man which is not guilty, is by the verdict of twelve men found guilty; what the law in that case were? to which the Chiefe Iustice made answer, That he ought to respite the Iudgement therein, and petition His Maiesty for his pardon: so that the verdict doth & must stand in force against both King and Subiect, and the Kings command by word or affirmation, to the contra­ry is of no effect. And if the the said Iudge had not had particular knowledge, who it was that killed that man, then he ought to have given Iudgement, without any delay; or if he had given Iudgement, & the party against whom such Iudgement was given, was apprehended or executed by any Officer that Officer, and all assisting him therein, had beene freed from all blame, and were not any way to be punish [...]d: Nay, if the Officer had not done his Office, or others had not assisted him therein, both he and they had beene subiect to punishment, in manner aforesaid.

5 Lastly, it may be proved by that generall rule taken [Page 13] Co. 10.76. in the Case of the Marshall sea, viz. that where a Court hath Iurisdiction of the cause, but pro­ceeded erroneously, or against Law, to a Iudgement that all Officers & others imployed in execution of that Iudgement, are to be excused; and whatsoever they do therein is lawfull, and iustifiable, and may not be admit­ted to dispute or question the illegality thereof; so that upon the whole matter it appeareth, That the supream and highest Court of Record in the Kingdome, which hath Iurisdiction over all Courts and Causes, namly; the Parliament, Declaring the aforesaid Assembly to be disturbers of the Peace, Traytors, Felons, &t. That their Iudgement doth and must stand in force, untill it be reversed; and all Officers and others are bound to further the execution of that their Iudgement, & to do their commands, and the commands of the Law, touch­ing the same, and are by the same Law iustified therin.

And hereupon it appeareth that Quacumque via data, the first conclusion standeth firme, viz. that it is not only lawfull, but commanded by the Lawes of this King­dome, that all persons able, should by all or any meanes whatsoever, endeavour to apprehend, oppose, quell, and vanquish, the said persons assembled in manner as afore­said, notwithstanding the Kings Command or Prohibi­tion, Commune periculum, commune auxilium petit.