THE CASE OF The Commission of Array Stated.  
Octob: 20 1642  
IT is a true saying, that a Case rightly put, is half adjudged: It shall therefore be necessary to set down the true state of that great question which doth so much perplex men's minds about the Commission of Array, whereby such as are doubtful may the better have satisfaction therein.  
First than it shall be necessary to take knowledge of the Original of imposing of Arms, and wherein latter times have varied from that ancient course.  

Fortescue de legibus Angliae, Cap. 13.  
I conceive that the defence of this Realm doth properly and solely belong unto the King, who is to protect the persons and estates of all his Subjects against foreign enemies: Qui ad tutelam corporis, & bonorum erectus est: with which agreeth the Mirror of Justice, pa. 8. in the new print. Estreint de eux un Roy a regner sur eux, & governor le peuple de Dieu, & à maintainer, & defender les persons, & les biens en quiet, per les rules de droit. The King for his assistance herein, that he might the better enable himself to defend his Subjects, granted Lands to men of eminency, to be holden of him by Knight's service, to some by Esenage, to others by Castle guard, and the like, as he thought sit. Some of these held their Lands by one Knights see, some by two Knights fees, others by three, some by the fourth, some by the hundredth  of a Knights see, according to the value and quantity of such Lands he was pleased to confer upon him. He that thus held his Lands by one whole Knights fee, was to attend the Prince in his Wars either in person, or by an able man, forty days, well and completely arrayed for War. He that held his Lands by three Knights fees, was to do the like service with three men. Such as held by that fourth part of one Knights fee, was to attend one day furnished, as aforesaid. And he that held by more fees, more, and by Jesse, less time, according to the proportion of their Tenors. By these Tenants the Prince's Army was in time of War furnished with soldiers for the defence of the Realm.   

Fortescue, fol. 108.  
But such as held their Lands in Soccage, were not bound to warfare, they were only such as held by Knight's service. By this we now see that the King's auxiliary helps for defence of the Realmo, say searrered abroad in all parts of the Kingdom, and it was a dissicult and intricate business, to know how many Tenants the King had, who were thus bound to assist him, and to know every Tenant's proportion of Arms which he was to find, and for what time. Therefore to facilitate this business, there was an Officer appointed in every County, known by the name of the Feoder, who was to keep Rolls of all such as held their Lands by Knight's service, and by what quantity of Knights fees they were held, and to return his Rolls into the King's Court, that so he might be informed how many fees he had in each County, that so upon all emergent occasions he might require their services.  
In former times these Rolls were constantly returned into the Exchequer, there to remain of Record, where many of them are yet this day to be seen. And in former times this State was so tender in preserving of these Tenors, that in case any were alienated, whereby they might come into Mortmain (without special licence of the King) those Lands so aliened, were forfeited unto the next superior Lord of the Fee.  
When the King had occasion to use his Tenants in the Wars, he issued out Commissions to certain men, thereby giving them power to call all such his Tenants before them, and to see them Armed and Arrayed according to their several Tenors, by which they held their Lands. But you must remember, that such as held not their Lands by such services, were not to be charged with any Arms, as appeareth by the Statutes of 1 Ed. 3. cap. 5.25. Ed. 3. cap. 8. Fortescue de legibus Angliae, fol. 108.  
Now to apply this to the case in hand, A Gentleman holds Lands of the King by 20. Knight's Fees, and he is bound by his Tenure to maintain twenty men for the King's service in his Wars for forty days: It will be granted that he cannot perform all these services in his own person, for he cannot personally perform the service but of one man. (and for his own person also, the Law giveth him power to substitute an able man in his room) So then the services of the other nineteen men being defective in him, they must be supplied by others at his charge, and they also must be such men as hold not by the like Tenors, de suo proprio, i. e. in their own right; for if they should, than their own services would be defective for their own Tenors, and the King should be at a loss for want of their own personal services: for that man which doth serve with another man's Arms, would save that service of his own Lands, which he himself doth hold by the like Tenure. And this may be the reason wherefore the person substituted must be such a one as hath not Lands de suo proprio. The Tenors and persons being thus completed by the Commissioners, they had power to try, drill, and exercise them so, as they might be made fit for service in defence of the Kingdom.  
And this is the true use of the Commission of Array, so much talked of. And to conceive that those Commissioners had by virtue of their Commission any power to assess Arms upon any man (other then as aforesaid) were to give an interpretation directly against the Law.   

Ass. 42. Pl. 5.7.  
Dyer fo. 175. Scrogs Case.  
For a Commission to take a man and his goods, hath been by all the Judges agreed to be illegal.   

Fortescue de legibus, fol. 108.  
And Fortescue, who lived about the time of the making of that Statute, which is extended to warrant the Commission of Array now so much stood upon, and who was chief Justice in the next succeeding Kings reign, saith, that Soccage Land is not bound to Arms, Et contemporaria expositio est optimus interpres: Out of all which premises it may be concluded, that they who stand so much for the Commission of Array, do not state the question aright, but do herein, as they in the Case of Episcopacy; who argue only of the name, but not of the thing in question. It will be granted that Commissions of Array have been long in use, but not in that sense those men would have them to be, with a Legislative power in the Commissioners to impose what Arms they think fit upon the persons and estates of men at their pleasure; for they are only to see that the King be not deceived in his Arms, nor the Commonwealth wronged for want of defence and protection by the withdrawing of any services due.  
It will be difficult to produce any authentical warrant to prove that the Kings of this Realm have at any time legally exercised any power of imposing of Arms by their Prerogative, but what Arms they have imposed, have been by virtue of some Act of Parliament (Tenors excepted) And why by Parliament, if the Kings of this Realm had by their Prerogative power to impose, cannot be imagined? That Arms were imposed by Parliament, may be instanced for many hundreds of years, both before and since the Conquest In Canutus his time, a Satrap was charged with eight horses, whereof four were with Saddles, and four without Saddles, four Helmets, four Jackets, eight Lances, eight Bucklers, four Swords, and two hundred marks in money. The Thanus Regius was charged with half that proportion, but if he were but a common Thane, he was only charged with one Horse, and Arms, and this imposition was by Parliament.   

Lamb. Saxon Laws, fol. 120, 135, 125.  
So likewise were the impositions of King Edward the Confessor, and William the Conqueror by Parliament. For the times since the Conquest, it may be instanced in the Statutes of Westminster the first, Anno 3. Ed. 11. ca 7. Stat. of Winchester, 13. Ed. 1. Stat. 33. H. 8. cap. 5. And by 4. & 5. Phil. & Mar. cap. 2. All former Laws made for imposing of Arms were repealed, and another kind of imposing of Arms, viz. According to men's estates, either in Lands or Goods, ordained; and the same year, viz. 5. Mar. c. 3. A Statute was made whereby they were compellable at Musters to show these Arms, and for the Mustering and Training of them: but this Statute of 5. Mar. for imposing of Arms, being repealed, it may (and not without some reason) be conceived that the Statute of 5. Mar. ca 3. for Mustering of them, is now also repealed, being only a shadow that waited upon that body. It cannot be denied, but that the King hath had aid of the Subject towards his Wars, as the ninth Lamb, and the ninth Fleece, for two years, but this was by grant of the Subject, (Stat. 14. Ed. 3. cap. 20.) not by virtue of any imposition by Commissioners of Array, or by Prerogative; And being a gift of the Subject, it may not be produced for a Precedent, to give warrant to Commissioners to impose Arms by virtue of the King's Prerogative, as some do surmise.    
FINIS.