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Whereas of late, before certain persons deputed to treat upon sundry debates had between us and certain great men of our realm, amongst other things it was accorded, that in our next Parliament, after provision shall be made by us, and the common assent of Prelates, Earls and Barons, that in all Parliaments, treaties and other assemblies, which should be made in the realm of England for ever, that every man shall come, without all force and armour, well and peaceably, to the honour of us and our realm ; and now, in our next Parliament at Westminster, after the said treaties, the Prelates, Earls, Barons and the Commonalty of our realm, there assembled to take advice of this business, have said, that to us belongeth, and our part is, through our royal seigniory, straightly to defend force of armour, and all other force against our peace at all times when it shall please us, and to punish them which shall do contrary according to our laws and usages of our realm.
And hereunto they are bound to aid us, as their sovereign lord, at all seasons when need shall be; we command you, that you cause these things to be read before you in the said Bench and there to be enrolled.
Given at Westminster the 30th day of October.
The occasion of this Declaration was for the restraint of armed men from coming to the Parliament to disturb the peace of it, and is very improperly alleged for the maintenance of such levies as are now raised against the Parliament, the title of the statute being thus, "To all Parliaments and treaties every man shall come without force and arms;' so the question is not whether it belong to the King or no to restrain such force, but, if the King shall refuse to discharge that duty and trust, whether there is not a power in the two Houses to provide for the safety of the Parliament and peace of the kingdom, which is the end for which the Ordinance concerning the militia was made, and, being agreeable to the scope and purposes of the law, cannot in reason be adjudged to be contrary to it; for, although the law do affirm it to be in the King, yet it doth not exclude those in whom the law hath placed a power for that purpose, as in the courts of justice, the sheriffs and other officers and ministers of those courts; and as their power is derived from the King by his patent, yet cannot it be restrained by His Majesty's command, by his Great Seal or otherwise ; much less can the power of Parliament be concluded by His Majesty's command, because the authority thereof is of a higher and more eminent nature than any of these courts.
It is acknowledged that the King is the fountain of justice and protection, but the acts of justice and protection are not exercised in his own person, nor depend upon his pleasure, but by his courts and by his ministers, who must do their duty therein, though the King in his own person should forbid them; and therefore, if judgments should be given by them against the King's will and personal command, yet are they the King's judgments.
The High Court of Parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of His Majesty as are prejudicial thereunto, although strengthened both by his personal command and by his Proclamation under the Great Seal; but it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety of the kingdom, and to declare the King's pleasure in those things as are requisite thereunto; and what they do herein hath the stamp of the royal authority, although His Majesty, seduced by evil counsel, do in his own person oppose or interrupt the same; for the King's supreme and royal pleasure is exercised and declared in this High Court of law and council, after a more eminent and obligatory manner than it can be by personal act or resolution of his own.
Seeing therefore the Lords and Commons, which are His Majesty's great and high council, have ordained, that for the present and necessary defence of the realm, the trained bands and militia of this kingdom should be ordered according to that Ordinance, and that the town of Hull should be committed to the custody of Sir John Hotham, to be preserved from the attempts of Papists and other malignant persons, who thereby might put the kingdom into a combustion, which is so far from being a force against the King's peace that it is necessary for the keeping and securing thereof, and for that end alone is intended; and all His Majesty's loving subjects, as well by that law as by other laws, are bound to be obedient thereunto; and what they do therein is (according to that law) to be interpreted to be done in aid of the King, in discharge of that trust which he is tied to perform ; and it is so far from being liable to punishment, that, if they should refuse to do it, or be persuaded by any commission or command of His Majesty to do the contrary,
they might justly be punished for the same, according to the laws and usages of the realm ; for the King, by his sovereignty, is not enabled to destroy his people, but to protect and defend them; and the High Court of Parliament, and all other His Majesty's officers and ministers, ought to be subservient to that power and authority which the law hath placed in His Majesty to that purpose, though he himself, in his own person, should neglect the same.
Wherefore the Lords and Commons do declare the said Proclamation to be void in law, and of none effect; for that, by the constitution and policy of this kingdom, the King by his Proclamation cannot declare the law contrary to the judgment and resolution of any of the inferior courts of justice, much less against the High Court of Parliament; for if it were admitted that the King, by his Proclamation, may declare a law, thereby his Proclamations will in effect become laws, which would turn to the subverting of the law of the land, and the rights and liberties of the subjects.
And the Lords and Commons do require and command all constables, petty constables, and all other His Majesty's officers and subjects whatsoever, to muster, levy, raise, march and exercise, or to summon or warn any, upon warrants from the Lieutenants, Deputy Lieutenants, Captains, or other officers of the trained bands, and all others, according to the said Ordinance of both Houses, and shall not presume to muster, levy, raise, march or exercise, by virtue of any commission or other authority whatsoever, as they will answer the contrary at their perils; and in their so doing, they do further declare that they shall be protected by the power and authority of both Houses of Parliament; and that whosoever shall oppose, question or hinder them in the execution of the said Ordinance, shall be proceeded against as violators of the laws and disturbers of the peace of the kingdom.
THE KING'S LETTER SENT WITH THE COMMISSIONS OF
ARRAY TO LEICESTERSHIRE.
[June 12, 1642. Rushworth, iv. 657. See Hist. of Engl. x. 202.]
Charles R. Right trusty and right well-beloved cousins, and right trusty and well-beloved, we greet you well. Whereas it hath been declared by the yotes of both Houses of Parliament the 15th day of March last, that the kingdom hath of late, and still is in so evident and imminent danger, both from enemies abroad and a Popish discontented party at home, that there is an urgent and inevitable necessity of putting our subjects into a posture of defence for the safeguard both of our person and people; and that sithence divers inhabitants of divers counties have addressed their petitions to that purpose : and whereas a small number of both Houses (after it had been rejected by the Lords in a full House, and without our royal assent, or the opinion of the Judges concerning the legality of it) have attempted by way of Ordinance, to put in execution the militia of the kingdom, and to dispossess many of our ancient nobility of the command and trust reposed in them by us, and have nominated divers otherş who have no interest, nor live near to some of the counties to which they are nominated for the Lieutenancy, whereby they cannot be properly serviceable to the counties wherewith they are entrusted, nor our people receive that content and security which we desire they should. To submit to the execution of which power by the way of Ordinance, without it were reduced into a law by Act of Parliament established by our royal assent, were to reduce and expose our subjects to a mere arbitrary government, which by God's grace we shall never permit.
We, therefore, considering that by the laws of the realm it belongeth to us to order and govern the militia of the kingdoin, have thereupon by our Proclamation of the 27th of May last, prohibited all manner of persons whatsoever upon their allegiance to muster, levy or summon upon any warrant, order or ordinance from one or both Houses of Parliament, whereunto we have not, or shall not give our express consent to any of the trained bands or other officers without express warrant under our hands, or warrant from our Sheriff of the county, grounded upon a particular writ to that
purpose under our Great Seal ; and considering that in ancient time the militia of the kingdom was ever disposed of by the Commissions of Array, and that by a particular statute upon record in the Tower, made in the fifth year of Henry the Fourth", by full consent of the Prelates, Earls, Barons and Commons, and at their suit, and by the advice and opinion of the Judges then had, such Commissions were mitigated in respect of some clauses perilous to the Com
1 Rolls of Parliament, iii. 526.
missioners, and approved of for the time to come.
And by the subsequent records it appeareth that all our royal prede cessors have continually exercised that power by such Commissions, till of late time they have been discontinued by the grants of particular Commissions of Lieutenancy, little differing in substance from the said Commissions of Array, against which the Houses it seems have taken some exception; and though we are no way satisfied of the illegality of them, our counsel being never heard in the defence thereof, yet being willing to avoid all exceptions at present, we have thought fit to refer it to that ancient legal way of disposing the power of the militia by Commissions of Array for defence of us, our kingdom and our county ; authorising you, or any three or more of you, to array and train our people, and to apportion and assess such persons as have estates and are not able to bear arms, to find arms for other men in a reasonable and moderate proportion ; and to conduct them so arrayed, as well to the coasts as to other places, for the opposition and destruction of our enemies in case of danger, as to your discretions, or any three or more of you, shall seem meet, whereof you Henry Earl of Huntington, and in your absence William Earl of Devonshire, or Henry Hastings, Esq., to be one ; and being both confident in a great measure both of the loyal affections of our people, and very tender to bring any unnecessary burden or charge on them by augmenting the number of the trained bands, we do for the present only require that you do forthwith cause to be mustered and trained all the ancient trained bands and freehold bands of the county, carefully seeing that they be supplied with able and sufficient persons, and completely armed ; unless you find that there be just cause, and that it shall be with the good liking of the inhabitants for their own better security, to make any increase of their number; and over such bands to appoint and set such colonels, captains and officers as you shall think most fit for the discharge of that service, being such persons as have considerable interest in the county, and not strangers : and in case of any opposition, you are to raise the power of the county to suppress it, and to commit all such persons as are found rebellious herein into the custody of our Sheriff, whose care and assistance we especially require : and that he shall from time to time issue forth such warrants for the assembling of our people at such times and places as by you shall be agreed on, according to the trust reposed in him by our said Commission : and we have