AN ANSWER TO THE BOOK CALLED Observations of the old and new MILITIA: WITH CERTAIN STATUTES produced for the choosing of his Majesty's Sheriffs, and other Officers, in every COUNTY of ENGLAND AND WALES.  
London printed for W.G. Sept. 6. 1642.   

An Answer to the MILITIA OLD AND NEW.  
1. HE saith the Counties were committed to Earls to govern and defend.  
What then? From whom had they Commission? Who knows not that the Sheriff in effect supplies his place now, and yet it makes nothing for him.  
2 He saith the Peers in Parliament were to judge of any wrong done by the King to His Subjects.  
Howsoever it was then, we know no other ways of redress now, but by petition, the King might have been sued by Writ as a common person; but it is otherwise now, witness Bracton, li. 1. Ca, 8. fo. 5. so 22. Ed. 3. fo. 3. which see in the latter end at large.  
Next he comes to show by whom Officers were anciently chosen For the Tythingman, and Constable, it is the same in effect still, but what makes that for him.  
And what follows if all this were true concerning choosing Coroners, Sheriffs, Lieutenants, Chancellor, Treasurer, etc.  
1. For first in divers of these cases the Common-Law is clearly altered by Statute.  
2. Suppose it were not, pray afford your Sovereign as much Prerogative as you will a poor Township. If a private person take upon him to repair a Bridge, or a Causey freely, which belongs of right to be maintained by the Inhabitants, yet he having done it freely from time, beyond the memory of man, he shall now be compelled to do it. And I believe the Scribblers Grandfather, if he were now alive, could not remember but the contrary hath been in use for the placing of Officers.  
3. I am yet of that opinion, that all the power of execution of Justice is in the King, according to the constitution of our Commonwealth, and that whatsoever authority is in the Subject for execution of Justice, is but derivative from him, 12. Hen. 7. fol. 18. Kitch. fo. 4.  
If men would be satisfied with reason, it were easy to give instances enough.  
All Writs, Process, which are the foundations of Justice, are to issue in the King's name, even to determine right betwixt Subject and Subject.  
The Justices of both Benches, and Barons of the Exchequer, who are to see Justice done in his Majesty's name, are made by his Writ. justices of peace who are to execute justice according to the Law, yet it is merely by Commission from the King, and in his name, and by power delegated from him, and no otherwise. Should we instance in Majors, or other Officers in Corporations, chosen by the Commonalty, yet I hope the Commonalty had the power by Patent from the King, and so are beholding to him. And withal the Officers of their making, are but Ministers to the King, to execute justice in his name. So for Coroners and Sheriffs, the one made by the King's Writ, the other by his Patent, but neither of them to do their own pleasure, but to be Ministers of justice to him, and in his name.  
Should we descend to meaner Officers, Constables are conservators, or keepers of the peace, but of whose? of the King's peace doubtless.  
But our Author saith further, that it was petitioned in Parliament, that the great Officers of the Kingdom might be chosen in Parliament.  
Answ. Be it so: Petitions are not always granted, and himself makes a Quae●s.  
What then? Yet I hope they never dreamt but to allow the King a negative voice, at least in case he shown cause of the ill election of any officer, and so our Author is as fare wide of the mark as ever.  
Our Rhymer having showed the ancient Constitution of the Kingdom, comes to a Modern.  
But being most of it little to the purpose, we will only observe his wisest passages.  
He confesseth now the choice of Sheriffs is committed to the Lord Chancellor, Treasurer, etc. But after he hath made a quaere, whether if this choice should fail in time or place, whether it were good or no; he than makes a silly objection, thus, Doth not the King usually make and appoint Sheriffs of every County, by his prerogative, this weak and silly objection like himself, he frames to the same as silly an answer.  
For be it so that the King cannot by Law make any one Sheriff by his Patent, except he be first chosen according to the Statute of Lincoln: yet Sir you come short of your purpose, for what Logic is this?  
The King cannot legally by his Patent make a Sheriff, except he be first chosen according to the Statute of Lincoln. Ergo, if the Sheriff be not chosen according to the Statute of Lincoln, the County may make one: for the difference is apparent between choosing and making of a Sheriff, the latter being done only by the King's Letters Patent.  
But besides Sir, was it ever so since Sheriffs executed that office of trust as Ministers to His Majesty, that they were placed in office by the County without the Royal assent?  
How absurd a thing were this? They are to execute the King's Process, to keep the King's peace, to give account of his Revenues in their Counties, due by forfeitures, outlaws, waifes, estrays, etc. and yet the King shall have no hand in choosing him; how absurdly doth this man talk?  
But he makes a further quaere, whether if no Sheriff be legally chosen, whether the Freeholders' may not choose one.  
He thinks they may: Let us see his Reasons.  
1. Otherwise there will be a failing of Justice.  
If he means by failing of Justice, a neglecting of the orderly way for choosing Sheriffs, it is true: but if he means a failing of execution of Justice to be done in the County for want of a legal choosing of a Sheriff, it is questionable, as being possible, that a Sheriff made only by the Patent of the King may execute Justice in the County, although he want a legal choosing:  
His second reason is, because the Statute is the affirmative, and so altars not the Common Law  
What an argument is here taken upon trust, for though in some cases it may peradventure hold, yet common experience shows the rule to be very far from being universal.  
What say you to the Statutes which gave Cestuy que use power to make Leases? Was not the Canon Law altered which would not suffer him to make any before.  
But it will be said, this took not away the power of the Feoffees, but that they might still make Leases.  
That's not the matter, for in the former point there was plainly an alteration by a Statute in the affirmative.  
But what says he to the Statute of 27. Hen. 8. which says the State and possession in Land shall be fully in Cestuy use, in the same manner as the use is. I hope by this affirmative Statute Canon Law was clearly altered, which adjudged the state and right to be in the Feoffees.  It is now no time to trace him in the rest, so I shall let him have his mind till another time. 
Only I will add the words of Bracton in answer to his position laid down in the beginning, That the Peers in Parliament were Judges of all wrong done by the King to any of his Subjects.  
The words of Bracton are these, li. 1. ca 8. fo. 5.  IPse autem Rex non debet esse sub homine, sed sub Deo, & scd sub lege, quia lex facit Regein, attribuit igitur Rex legi, quod lex attribuit ei, viz. Dominationem & potestatem, non est enim Rex ubi dominatur voluntas, & non lex, & quod sub lege esse debeat, cum sit Dei vicarius, evidenter apparet ad similitudinem Jesu Christi. 
And a little after, Sic ergo Rex ne potestas sua maneat infrenata igitur non debet esse major eo in regno suo, in exhibitione juris, minimus autem esse debet, vel quasi injudicio suscipiendo si petat. Si autem ab eo petitur (cum breve non careat contra ipsum) locus erit supplicatione quod factum suum corrigat, & e●●●d & quod quidem si non fecerit, satis sufficit ei ad penam quod dominum. Nemo quidem de factis suis presumat disputare, multo fortius contra factum suum venire. In English thus. But the King ought not to be under man, but under God, and under the Law, because the Law maketh the King, Therefore the King attributes the same to the Law, which the Law attributes to the King, to wit, Rule, and Power, etc.  
According to which saying of Bracton, it was said 22. Ed. 3. fol. 3. That the King makes the Laws by the assents of the Peers and Commons, and not made by the Peers and Commons only; And that the King hath no Peer in his own Land, and that the King ought not to be judged by them.  
FINIS.