AN ARGUMENT OR, DEBATE IN LAW: OF THE GREAT QUESTION CONCERNING THE MILITIA; As it is now settled by ORDINANCE of both the HOUSES of PARLIAMENT. By which, it is endeavoured, to prove the legality of it, and to make it warrantable by the fundamental Laws of the Land. In which, Answer is also given to all Objections that do arise, either directly, or collaterally concerning the same. All which is referred to the judicious Reader.  
By J. Marsh C. L.  
LONDON: Printed by Tho. Paine, and M. Simmons, for Tho. Vnderhill, at the Bible in Wood-street, 1642.   

TO THE READER.  
Courteous READER,  
THat which I framed for my own private satisfaction only, in these distracted times, in which every man (that resolves not to stand Neuter) ought to have his conscience poised by good grounds and principles, l●st that it suffer shipwreck in the conclusion; I do here (though unwillingly) present to the public view; in which weak and poor endeavour, I have borrowed some of the Parliaments grounds to exspatiate myself upon, that I might the better convince thy judgement, and mine own: but the greater part are mine; which I hope will not blast the rest, nor make it unfruitful to thee; but rather more fully inform, satisfy and convince thee of the truth of the Parliaments assertions: and to this end I have not used any affected style, but have (to the utmost of my endeavour) invested the Law with its own plainness and integrity: for I have always raised this conclusion to myself, that where I look for words, there I expect least Law, which is confirmed unto thee, as a truth, in these days. Now Reader, shortly to conclude this, (for the Work doth not deserve a Preface or Epistle) if happily there may be any thing in it, that may merit thy more serious consideration, and make thee a true Subject to the King, by being faithful to the Parliament; I shall expect no greater areward of my labour, then that, confidently believing that the issue of it will be, thine, and my happiness, Farewell.  
Thine to love and serve thee, J. Marsh.   

AN ARGUMENT IN MAINTENANCE OF THE MILITIA, Settled by ORDINANCE of PARLIAMENT.  
THe general Question is but shortly this; Whether the Militia, as it is now settled by both the Houses of Parliament, be warrantable by Law, or not?  
The Case, with the Circumstances, upon which this general Question is stated, depends upon these two Quaeres:  

1. Whether the King by his Prerogative hath the sole and only power of ordering and disposing of the Militia of his Kingdom or not? Admitting that he hath: then the next and main scruple is:  
2. Whether both the Houses of Parliament, in time of imminent danger, (the King refusing to settle the Militia for the defence and security of his people) may by an Ordinance of Parliament, without his Majesty's consent, settle the Militia, and put the Kingdom into a posture of defence or not?   
1. For the first point, I conceive very clearly, that the King by his Prerogative, warrantable by the Laws of the Land, performing the trust reposed in him, hath the only power of disposing of the Militia of this Kingdom; and therefore I shall not debate this, so much out of scruple or doubt, as to give satisfaction to the unlearned; and I shall prove it in reason thus: The King is Caput Reipublicae, & pater patriae, that is, the head of the Commonwealth, and Father of his Country; and hath this great trust committed to him by God, and his people, of governing of them in peace and happiness, by maintaining and defending of their Religion, Laws, and Liberties; which, that he may be the more obliged to do, he taketh a solemn Oath at his Coronation, that he will do and perform this, according to the trust reposed in him; the due execution whereof, being of so high consequence to this Kingdom, and of so great difficulty to himself, and therefore not to be executed without great care, circumspection, and trouble; the Laws and Constitutions of this Realm, hath in favour and aid of his Majesty (who is intended always to be employed and negotiated Cirea ardua regni, about the high things of the Kingdom) allowed unto him, many prerogatives, privileges, and exemptions, above all his Subjects. Among which, I take this in our Case to be one; for as our Religion, Laws, and Liberties, are committed in trust to the King, so are our lives also: which he is bound to defend aswell by the materall sword, if occasion be, as by the sword of Justice, and therefore as it is well known, all prosecutions by way of Indictment against any man, for the taking away of the life of another, are at the suit of the King, and the King only can pardon the offence, and no other. For he alone hath the charge of the lives of his Subjects committed to him, and this is such an inseparable trust, that the King cannot grant this over to another, as it is resolved in 20. H. 7. where it is said, 
●●. H. 7. fo. 8. a.  That a grant of power to pardon Felons, by the King to another, is not good, for that it is a prerogative annexed to the Crown, and cannot be severed: But here it is not to be understood that no prerogative of the King can be severed from the Crown, for some may, as I shall afterwards show, and that by grant of the King too: but that this among others, is such a prerogative as cannot be severed, and the reason of this, is, as I conceive, for that the life of a man is of so high and puissant nature, that none less than God, or the King, aught to have interest and power in; and though the Commonwealth lose a member, it is the King only who looseth a Subject, and therefore the kill of a man, is said in the Indictment to be against his Crown and dignity, and not against the Commonwealth; for though mediately it be an offence against the Commonwealth too: yet it is a more near and immediate offence against the King: for that he is entrusted with the lives of his Subjects.  
Now as the King is bound to defend his Subjects by the Law, so in like manner he is bound to defend and protect them by the Sword, if occasion be, as I have said before, from all danger, both of foreign and domestic enemies. And therefore, as there is a Leigeance, that is, a faithful and true obedience of the Subject due to his Sovereign, as it is interpreted in the 7. Rep. Calvines case: 
● Rep. Calvins ●●se.  So there is a protection due from the Sovereign to the Subject; for he ought not only regere, to rule, but also Protegere subditos suos, to protect his Subjects. So as between the Sovereign and Subject, there is Duplex & reciprocum ligamen, that is, a double and reciprocal bond; Quia sicut subditus regi tenetur, ad obedientiam, ita Rex subdito tenetur ad protectionem, for as the Subject is bound to obey the King, so the King is bound to protect his Subject; and therefore in 20. H. 7. it is holden, that there is a Liege or Leigeance between the King and the Subject: 
20. H. 7. 8.  and Fortescue cap. 13. saith, Rex ad tutelam legis, corporum & bonorum erectus est, that is, he is erected King, to defend the Law, the bodies, and goods of his Subjects: and in the Acts of Parliament of 10. R. 2. 11. R. 2. and 14. H. 8. etc. Subjects are called Liege people. 
10. R. 2. ca ●… 11. R. 2. ca ●… 14. H. 8. ca ●…  And in the Acts of Parliament of 34. H. 8. and 35. H. 8. etc. the King is called the Liege Lord of his Subjects; 
34. H. 8. ca ●… 35. H. 8. ca ●…  and with this agreeth Master Skene in his Book de expositione verborum, that Leigeance is the mutual bond & obligation betwixt the King and his Subjects, by which Subjects are called his liege Subjects, for that they are bound to obey and serve him: and he is called their Liege Lord, for that he ought to maintain and defend them: Wherefore it is truly said, that Protectio trahit subjectionem, & subjectio protectionem, Protection draweth subjection, and subjection protection.  
By all which it is manifest, as also by the Oath of the King, taken at his Coronation, lately published by the Parliament, that the King is bound to protect the lives & liberties of his Subjects, so long as the Subject is obedient to the King; for protection and leigeance are relatives, and have a necessary and reciprocal dependence the one upon the other: and this is the reason that we say that a man outlawed, is out of the protection of the King; so that heretofore a man outlawed was said to have Caput Lupinum, that is, a Wolves head: so that any man might then have killed him, as Fleta saith, 
Fleta. lib. ●… cap. 27.  and other old Books: because that by his disobedience to the King, he had deprived himself of the benefit of the regal and legal protection. I do not say, that if the King withdraw his regal protection from his Subjects, that his Subjects may withhold their obedience from their Sovereign: yet I am certain, that the Books before cited imply as much. Besides, reason will arm every man thus fare, as to conclude, that the cause and ground of his obedience, is his Sovereign's protection, and therefore if his Sovereign withdraw the one, he may deny the other. Again, denying to protect his Subjects, is a plain refusal to be ruled by Law, and this, as Bracton saith, makes him a Tyrant no King, and my obedience is due to him, as a King, not as a Tyrant. But I pass this over, as a matter of so great consequence at this time, considering the bad principles of many men, that I had rather offend in withholding of my judgement, then in publishing of it.  
But yet more fully, that the King is bound to protect his Subjects, F. N. B. is express. 
F. N. B. foe. 232.  Nota, saith the Book, that the King is bound of right by the Laws, to defend his Subjects, and their goods and chattels, lands and tenements, and therefore by the Law; every lawful Subject is taken to be within the protection of the King, and if he be put out of protection for his offence, than every man may do with him as with an enemy of the King: Here note, that the Subject cannot lose his protection due to him by his Sovereign, but by his own default.  
And in F. N. B. fol. 113. a. it is there said, 
●. N. B. foe. ●13. a.  that the King ought of right to save and defend his Realm, as well against the Sea, as against enemies, that it be not surrounded or wasted: and to provide remedy for it; and also to provide that his Subjects have their passage throughout the Realm by all high ways in safeguard. And this is warranted by the Commission of Sewers, which is directed by the King to Commissioners, to inquire of, etc. and to hear and determine all faults and breaches of Walls, Ditches, etc. Sea-bankes, etc. in the beginning of which Commission, the fractions of the Walls, or Sea-bankes, is cited, and in the body of it, the King saith, Nos pro eo quod ratione dignitatis nostrae regiae ad providendum salvationi regni nostri circumquaque sumus astrcti, volentes in ha● parte congruum & festinum remedium adhiberi, assignavimus vos, 〈◊〉. Here the King himself saith expressly, in this Commission, that he is every way bound, by reason of his royal function, and Kingly office, Providere salvationi regni sui, that is, to provide safety for his Kingdom. And is the Law thus, that the King is bound to protect and defend his Subjects, Permare, per terras? By the Sea, from all Pirates and Robbers, as also from the invasions of foreign enemies: and by the Land, from any domestic dangers, either by inbred rebellions, or civil Commotions? Why then the Conclusion that I raise upon these premises, is but this; That it is consonant and agreeable to all reason, that the King executing of the trust reposed in him, should not be denied the means, by which he may respond that great confidence placed in him, by his own care and fidelity: and God forbidden, that we should requir● the due execution of this great function, of his Majesty's part, and yet that we should withdraw from him the means, by which he should perfor●e it; for if so, to be a King, would be far worse, than an Egyptian servitude.  
Wherefore I conceive that it stands with all the justice and equity in the world, that the King (who hath so great a charge upon him, that greater cannot be, by which, he, as Vicarius Dei, that is, God's Vicar, as Bracton speaketh, is obliged to defend the persons and property of his Subjects) should have all the Castles, Forts and strong holds, and all the Ports and Havens at his rule and disposition, and that generally he should have the ordering of the Militia throughout the Realm: so that by this means he may be enabled to discharge that great trust that is committed to him (without which he cannot be) and at the last to render a just account to God, of his Stewardship.  
And this certainly Bracton li. 2. de acquirendo rerum dominio, intends, when he saith, 
Bract. l. 2. c. 2  that the King, Habet ea quae sunt pacis, ut populus sibi traditus, in pace sileat & quiescat, etc. that is, he hath those things, which belong to peace, that he may govern his people committed to his charge in peace and quietness. For as the King hath ordinariam jurisdictionem, that is, ordinary jurisdiction, as Bracton saith before, and this to govern his Subjects according to Law and right: so, Habet ea quae pacis sunt; that is, not only the Law to maintain peace among his Subjects: but also, Ea quae belli sunt, all those things, which conduce to the protecting and defending of his Subjects from any foreign invasion, or domestic danger, or otherwise he could not possibly maintain peace according to the saying of Bracton, and as by his Oath he is bound.  
The King by the Law hath this Prerogative allowed unto him, that he only may proclaim war, and he only can establish peace among his people, as the 7. Rep. is: 
7. Rep. fo. 25.  why then I argue thus, It is a greater prerogative to have power to proclaim war: than it is, to have the only means to maintain it: and therefore it is not to be conceived, that the Law, that would allow the King the greater power, would deny him the less. For, Qui majora concedit, minora non denegabit: He that granteth the greater, will not deny the less. Again, to allow the King power to proclaim war, and to deny him the means to maintain war, were absurd, and the Law will not admit of any absurdity. Wherefore I conceive, for these reasons also, that the King by the Law, hath likewise this prerogative of the sole ordering and disposing of the Militia of the Kingdom.  
Now to conclude this point, I shall parallel this case, to one case only in the Law, and that is to Mittens case in the 4. Rep. where the case is thus: 
4. Rep. fo. 3●… Mittens cas●  Queen Elizabeth by her Letters Patents under the great Seal, granted the Office of the Clerk of the County Court, of the County of Somerset, to Mitton, with all Fees, etc. for term of his life: and after the Queen constituted Arthur Hopton Esquire, Sheriff of the same County, who interrupted Mitton, claiming this Office, as incident to his Office of Sheriff, and upon this he appointed a Clerk himself of the County Court; and here the sole question was, whether this grant by the Queen, were good, or not? And it was adjudged upon solemn debate, that it was not, and the principal reason given wherefore the grant was nought, was, because that great inconveniences might follow to Sheriffs, who are great and ancient Officers and Ministers of Justice, if such grants should be of validity, for that there is great trust reposed in them, for which they are responsible, as it is there said: whereupon it is concluded, that Law, and reason requires, that Sheriffs who are public Officers and Ministers of justice, and who have an office of so great eminency, confidence, peril and charge, that they ought to have all rights appertaining to their office. And in this case there is cited another case, to this purpose, Mich. 39 & 40. of the Queen resolved by all the Judges of England, as my Lord Coke saith, that the grants of the custodies of Goals, of the Counties, either by King H. 8. or afterwards, were utterly void: and the like reason is given in this case, as in Mittens case: for that custodies of Goals belong to the office of Sheriff, who being immediate Officer to the Courts of the King, must answer for escapes, and shall be subject to amerciaments, if he hath not the body in Court upon process to him directed, etc. and therefore it is reason, that he should put in such keepers of the said Goals; for whom he should answer, according to the purvieu of the Act of 14. E. 3. 
●4. E. 3. c. 10.  For otherwise against the rule of reason and equity, Alius offendet, alius plectitur: that is, one man should offend, another should be punished. Now if the Law be thus, in these cases, that you shall not take away these offices from the Sheriff, who is an Officer of trust, and only chargeable for any misdemeanour, in the executing of the same; for that by this means, you should disable him to execute his Office, according to the confidence reposed in him, and yet should punish him for the not doing of his duty; which should be against all reason: à fortiori, I say in this case, you shall not deny the King, who hath the greatest Office of trust, and charge, that can be, the means and way to perform this trust, and to undergo this charge, which cannot be otherwise done, then by allowing of the King this prerogative (so long as he doth perform the trust that runs along with it) of having the sole disposing and ordering of the Militia of his Kingdom.  
And without question Bracton when he saith, that the King hath Gladium materiale, that is, the material sword, can intent nothing else by this, but Gladium belli, which is the Militia, and gladium by a Synecdoche, may well comprehend and be set pro omnibus rebus milititaribus, that is, for all things military; And it is usual in holy Writ, when God threatens the heavy judgement of war upon any Nation, to do it under the notion and expression of a sword, by this intending, Bellum, that is, war, with all its sad effects. Wherefore I conclude this point, that the King hath this prerogative allowed unto him by the Law: for these preceding reasons. 1. For that it were inconvenient for the King, who by the Law is bound to protect and defend his subjects, if he should not have this power. 2. For that the Law hath given unto him a greater prerogative, and therefore will not deny him the less: and thirdly and lastly, for that it would be absurd, that the King should have power to proclaim war, but not to maintain it.  

Second part.  For the second question, which is, as I conceive, much more difficult, than the former, and which is the great doubt and dilemma of the time, which is but thus: whether the two Houses of Parliament, the Kingdom being in imminent danger, and the King refusing to put it into a posture of defence, may by their Ordinance, without the consent of the King, settle the Militia, and put the Kingdom into a posture of defence, or not?  
And I do conceive, under favour, in some clearness, that they may, and that in so doing, they have done no more than what is warrantable by the Law. And this I ground in the first place upon the imminent danger, and extreme necessity, that the kingdom is in: and therefore though it should be admitted, that they could not do it, at another time, yet I conceive that by reason of the necessity, it is warranted by the Law for them to do it at this time.  
It is a rule in our Law, first cited in Bracton, 
Bract. fo. 247 a.  and remembered in the 10. Rep. 
10. Rep. fo. 61. a.  that illud quod alias licitum non est, necessitas facit licitum, & necessitas inducit privilegium, quod jure privatur. In time of necessity, illegal acts, are made legal: and things utterly against Law, justifiable; Upon this rule I might multiply cases, but because I do not affect, via trita obambulare, to go in the common road, therefore I shall only put some of the most material cases, which I find to this purpose, and the others I shall omit.  
In Pl. Com. it is said, 
Pl. Com. fo. 13. b.  that when Laws or Statutes are made, yet there are some things, which are excepted, and forseprised out of the provision of them, by the Law of reason, though that they are not expressed by words. As breaking of a prison is Felony in a prisoner himself by the Statute De frangentibus prisonam: yet if the prison be burnt, and they which are in, break the prison for salvation of their lives, this shall be excused by the Law of reason, and yet the words of the Statute are against it.  
And 14. H. 7. Jurors who were sworn upon the issue, 
14. H. 7. fo. 29  and by the Law ought not to departed, until they are agreed of their Verdict, for fear of a great tempest departed, and severed themselves: and it was there held that they should not be amerced, and that their verdict afterwards was good. And this was thus holden (saith the book) for the necessity of the chance; but otherwise they should have been grievously punished. So by the Law, for the salvation of my own life, I may kill another. And as the Law makes that lawful, in case of necessity, which otherwise would not be lawful, when it concerns any man's private: so à fortiori, when it concerneth the Common-weal, and therefore as the book is in 29. H. 8. Dyer, 
29. H. 8 Dyer. fo. 36. b. 8. E ●4. 23. Br Custom 45.  a man may justify the making of Bulwarks, in another man's soil, without licence; and the razing of a house which burns, for safeguard of the houses of the neighbours. So it is if the Sheriff pursue a Felon to a house, and for to have the Felon, he breaketh the door of the house, this is justifiable. So in 13. H. 8. 
13. H. 8. 16. ●. E. 4. 35 b.  the inhabitants of a City in time of war, if they conceive that the Suburbs may endanger the taking thereof, may lawfully burn or destroy the suburbs, for the Towns or City's preservation, and the common safety. And in these cases, necessity, and the good of the republic, maketh that lawful, which otherwise would not be lawful.  
It is a certain rule, that all Laws ought to receive an equitable and favourable construction, according as opportunity and the necessity of the case, administers occasion: for, Summum jus, est summa injuria: that is, over-strict observance of the Law, may sometimes be unlawful. And à fortiori, they shall receive such a construction, where it concerns the Commonwealth: and accordingly the Judges in all ages, as they ought, so they have always made such interpretation and declaration of the Laws, that the Commonwealth should not be prejudiced. And this is the reason of these cases, which have been often adjudged, that if a man bind himself, that he will not exercise his trade, or that he will not manure his land, or that he will not marry, that the Obligation in these cases is void, for that it is against the weal public.  
And this is the reason also, that hath made the Judges always to adjudge all the Grants of the King, of Monopolies, or Impositions upon the Subject, without Act of Parliament, to be against the Law, for that they were against the good of the Commonwealth, and liberty of the Subject. 
●…. H. 3. ca 29.  And this is grounded upon Magna Charta, which saith, Quod nullus libor, homo, etc. that no freeman shall be taken and imprisoned, or be disseised of his  or liberties, but by lawful judgement of his Peers, or by the Law of the land.  
And if the Law be such, that the King by such grants, which are against Law, and the weal public, cannot take away my freehold or livelihood from me, but that such grants shall rather be adjudged to be void, (against the opinion of Bracton who saith, 
Bract. fo. 34. ●…. b. 2.  De chartis Regiis & factis regum, non debent, nec possunt justiciarii, nec privatae personae disturbare: that is, of the King's Charters, and his deeds, neither Justices, nor private persons, may, or aught to dispute: which clearly is against the known and established Law at this day) why then certainly, it will follow, that if the King, either by action, or omission, go about to endanger the weal public, and endeavour the destruction of it, which ex consequenti, must of necessity bring ruin to every individual person of it: that in such case, those who are entrusted with the common good, (as the Parliament at this time is) may by all means possible, endeavour the preservation of it: but I do not here intent by violent opposing or deposing of his sacred Majesty, of which I shall speak a word afterwards, but by settling of the Kingdom, into such a state and condition, as our sage Parliament hath now done, that it may be able to defend his sacred Person, and itself, against any foreign or domestic surprise or invasion.  
It is a true Rule, that Interest Reipublicae, ne sua re, quis malè utabur, a man (contrary to the opinion of the vulgar) may not do with his property as he pleaseth; for that the Commonwealth hath an interest peramount the property of any private man, and there is no Subject, but that, either more or less, according to his Talon, or place, that God hath put him in, either in Church, or State, is entrusted with the common good: and therefore if he doth contrary to his trust, use his Talon or place, against that end for which it was given unto him, he is punishable by the Law for it.  
And therefore if a man will destroy his woods, cast his money into the Sea, burn his Corn upon the Land, or in his Barns, or the like, clearly by the Law he is punishable for it: and agreeing with this Trin. 4ᵒ Jac. many were indicted of a Riot in the Star-chamber, for putting in of their Beasts into Corn, claiming their Common there, and in this case, the Lord Chancellor said, that though they had good title to the Common, yet that they should be here punished, for that they had destroyed the Corn, which is against the weal public.  
And without question, the rigour of all Laws, aught to receive such qualification, and equitable construction, that the Commonwealth do not suffer or be endamaged. The Law was made to support the common good, and therefore that Law is against Law, that is against the common good. Nemo sibi nascitur, no man was borne for himself; all men both Rulers and people, were borne to this end, to contribute, and confer some good to the Republic: and therefore Qui sibi solum vivit, he that lives to himself only, doth not live to that end, for which he was created, much less he, which makes construction of the Law against that end, for that were to destroy both Law, and government, which every man was borne to defend.  
It is a Rule in the Law, that Judges ought always to make such construction of the Deeds of men, and of their Grants,  res magis valeat, quàm pereat, that is, that they should rather take effect, then perish: so I say, it may well be taken for a Rule, that the Judges should not so construe the Law, that the Law should destroy itself, which will necessarily follow in the destruction of the Commonwealth; but that they should so interpret it, V● respublica magis valeat & floreat, quàm p●reat & destruatur, that the Commonwealth should rather flourish, then perish, and be destroyed.  
I agree, that in the case in question, by the strict Rule and Law of Prerogative, the governing and disposing of the Militia of the Kingdom is only in the King, and that he only may proclaim war, and he alone establish peace amongst his people: yet we ought not so t● construe this Law, that it is so in the King, that it cannot be severed from him, and that no other can intermeddle with it, without the consent of the King though that it be for the Weal public, and for the securing of the Kingdom, being in imminent danger, the King refusing to settle it, as in right he ought, upon the prayer of his people, represented in the desires of the Parliament. For to make such a construction were utterly to confound, and destroy, both Law, & Common wealth, as I have said before, and therefore ought not to be admitted.  
The King hath this Prerogative allowed him by the Law, that he shall not be bound by any Statute, except that he be expressly named in the Statute, yet it is resolved in the 5. Rep. 
● Rep. fo. 14. b.  that all Statutes, which are made to suppress wrong, to take away fraud, or to prevent the decay of Religion, shall bind the King, though he be not named in them; for, saith the Book, Religion, Justice, and Truth, are the sure Supporters of the Crowns and Diadems of Kings. So I say in this case, the King by his Prerogative (as I have said before) ought to have the sole disposing of the Militia: But if in imminent danger, he refuse to settle this for the safety of himself, and his Kingdom, according to the trust reposed in him, his Prerogative ought then to give way for the securing of his Crown, that those who are entrusted with the Weal public, as the Parliament is, may settle this for the defence of the King, and Kingdom, according, as in truth, they are bound, as I shall afterwards show.  
It is a Rule in our Law, That the King can do no wrong; and with this accords Bracton, 
●●acton foe. 107.  Nihil aliud potest Rex in terris, cum sit Dei minister & vicarius, nisi id solum, quod de jure potest, nec quod principi placet, legis habet vigorem, the King can do nothing upon earth, seeing that he is God's minister and Vicar, but that only which of right he ought to do, neither aught the Kings will, to have the force and vigour of a Law. Here note, that the will of the King, aught to subscribe to the Law; and not the Law to the will of the King.  
And in Pl. Com. 1. Rep. & 5. Rep. it is said, 
●●. Com. fo. 246.  
● Rep. fo. 44. b. ● Rep. fo. 55. b.  That the King cannot do a wrong, neither will his Prerogative be any warrant to him to do injury to another: and if the King cannot injure one single person, without question, he cannot injure all the Commonwealth, which he should do in this case, if both the Houses of Parliament, in this time of imminent danger, the King refusing to join with them, should not have this power of settling the Militia, in defence of the Kingdom, without his consent.  
I agree with Bracton, 
Bracton fo. 5●…  that the King, Parem non habet in regno, nec superiorem, He hath no equal, nor superior in his Kingdom; but that is to be understood, that there is no man above or equal with his Majesty; for he saith afterwards; 
Bracton fo. 3●…  Rex non debet esse sub homine, sed sub Deo, & sub lege, that the King ought not to be under man, but under God, and under the Law: and after fo. 34. a, he saith, Rex habet superiorem, Deum, scilicet, item legem, per quam factus est Rex, item Curiam suam, viz. Comites Barones, &c. the King hath a superior, to wit, God, in like manner, the Law, which made him King, and also his Court, to wit, the Earls, Barons, etc. which cannot be understood of any other, than the high Court of Parliament. And in the places before cited, he saith, Quod non est Rex, ubi dominatur voluntas, non Lex, He is not King, when his will rules, not the Law. Then if it be thus, as Bracton saith, that the Law, and the two Houses of Parliament, are above the King: and that the King is as no King, when he doth not submit to the Law, (which will of necessity follow, for that the same Law, which made him King, enjoins and obliges him also to defend his people committed to his charge; and without doubt, the one as just as the other, and if he refuse to protect his people, which is a despising, and a depressing of that Law which gave him this Sovereignty: certainly, the Law will not defend him in this his tyranny) I conceive, that in this case, the Law will in its own defence, and in default of the King, who ought to have maintained the Law, enable the two Houses of Parliament, to put the Kingdom into a posture of war, in defence of the King, his Laws and Subjects.  
But now the great Question is, What, and where is the ground of our fears, and jealousies, and where is the imminent danger; for, many say, that they cannot see it, and then it not being visible, and obvious to every eye: a Question as great in show as the former, arises upon this, Who is, or may be the proper Judge of this imminent danger. To the first, I answer, that our fear, and the imminent danger pretended, is no Phantasm or Chimerâ, as some would have it, but it is a real and visible cause of fear, Et talis metus qui cadere potest in virum constantem, such a fear, as may befall a constant man, as my Lord Cook describeth a fear, 
Instit. fo. 253.  that may possess a generous and settled spirit. And that it is thus, I appeal to the conscience of any wise & indifferent man, whether that the Commune incendium, the common fire, or calamity in our neighbour Nation of Ireland, clothed with these three circumstances, as I shall set it forth, will not cause, and justly too, a wise man to fear, and doubt, what the event will be.  
As first, that they are our Neighbours, and when my Neighbour's house is on fire: will any man adjudge this to be a phantasm or an effeminate fear in me, to provide for the securing of my person and estate, from perishing in the common ruin?  
Secondly, It is Religion, that these cruel, barbarous, and unheard of Tyrants, make for a ground of their horrid Rebellion: and what stronger engagement can there be, than this, for to encourage and spur men forward, in any desperate design? Especially, those of the Popish faction, who may have a pardon beforehand, for the act they shall commit, be it never so desperate: And do we not think, that this will be a strong incitement to men, who conceive themselves tied in conscience to undertake that which they do, to wade through any misery, for the accomplishment of their desired end, knowing beforehand, that they have a pardon for the most horrid act or attempt that they can do, conducing to the perfecting of the same? And then as this obligeth all Nations besides, of the Popish party, ought not we to think, and believe, that such an opportunity, must of necessity, stimulate them forward, to be aiding and assisting to such a design, which will infallibly at the last, merit either Heaven or Hell? I am confident (and it stands with all reason that it should be so, for that they have not for a long time, praised be God, had the like opportunity) that the Pope, with all his adherents, are now plotting, and contriving, with their holy Father the Devil, to operate the ruin of the Protestant Religion: and shall this engage them to fight against God, under a pretence of being on his side? And shall it not invite us, who fight for God, and his truth, which we have so long time, happily & peaceably through God's goodness enjoyed, to prepare ourselves, and all that we have, for the defence of the same? To conclude this, we who have the greatest part of the world our enemies, may justly fear, that they are now plotting and contriving that for England, that is already acted in Ireland. And let us not say, that they are at enmity one with another, and therefore, are not at leisure, to harm us: for we may be sure, that they will shake hands, to do us a mischief: according to that in holy Writ, of Pilate and Herod, who though they were utter enemies one to another, yet they were made friends, to combine against Christ. 
●…uke 23. 12.   
Thirdly, and lastly, who is able to say, that either he, or his children, shall live to see an end of that bloody persecution and rebellion, and what the success of it will be? True it is, that God hath hitherto gone forth with our Armies, and hath in an exceeding measure, and above all expectation, blessed their endeavours, and crowned their actions with a happy success, God be praised for it, but yet who knoweth, whether they shall ever be able to root out this rebellious Tribe? I speak not this out of any diffidence of God's continued favour and goodness towards us, or to make others mistrust; but only to demonstrate, that there is a just cause of fear; for who can divine what the event of war will be: Exitus belli incertus, that is, the issue of war is uncertain. Besides (and which brings me to my second ground of our just and dreadful fears) if the distractions of this Kingdom continue, which God defend, what aid can they expect from us, who are like to be surrounded with the like misery: so that their necessity, may cut them short of their hopes, and by this much add to our fears.  
Seconndly, having showed our just cause of fear, which riseth ab extra, from our deplorable brethren, and neighbours; now I shall show, our cause of fear, that ariseth ab intra: from the unhappy distractions, which are risen amongst ourselves. Who is it, that doth not see, the sad divisions and general sidings throughout the Realm? which hath grown upon this unhappy division of the King and Parliament; which when it will be reconciled, God knoweth. And if this (which adds much to our misery) had not happened, we could not before have been secure, without a just cause of fear: for what devilish plots, and fearful designs, have been discovered through God's mercy, and the vigilant eye of the Parliament; tending to the destruction of our best birthright and inheritance, the privileges and freedom of Parliaments? Without the continuance of which, that which is nearest and dearest unto thee, whether it be thy Religion, life, or liberty: what ever it be, that thou most blessest thyself withal, will then depend upon the Arbitrary will of thy Sovereign; so that thou mayest not then, style aught that God hath given thee, thy own: which heavy judgement I beseech God to divert from this sinful Land and Nation; for we may truly acknowledge, that it were just upon us, that we who have so much abused Gods blessings, should now be deprived of them: and that we, who have so much abused the freedom of conscience, of our laws, lives, liberties, and estates, should now be subjected to a perpetual slavery. Now to conclude this likewise, divide the Kingdom into four parts, and I am confident, that the Papist. Neuter, and Cavalier (I might add likewise the domineering proud Clergy, who would fain reduce all things to their late condition) who lie perdue, and wait for an opportunity, for to bring a speedy destruction upon this Commonwealth, will make two parts, I think I might, without any imputation, or prejudice to judgement, say three parts of the four, and now put all these things together, and I believe, that no indifferent understanding man, but will be forced to confess, that there was, and still is, a just cause of fear, and of putting of the Kingdom, into a posture of war. And then the imminent danger being pregnant, and demonstrable to all the world: the last question is taken away.  
But admitting that it were not prospicuous, and visible to all, than the question is, who is the proper Judge of this imminent danger, and I conceive plainly, under favour, that the Parliament ought to be, and no other: and my first reason is grounded upon the rule of Law, viz. that the Parliament can do no wrong, which is warranted by the 9 Rep. the 6. Rep. 
●. Rep. 106. b. ●07. a. ●. Rep. 27. b. ●…. a.  and many other books. And in Pl. Com. it is said, 
Pl. Com. fo. 398  that the Parliament is a Court of thrice great honour and justice, of which none ought to imagine a dishonourable thing. And this I conceive to be grounded upon the Writ of Summons to Parliament, which wils, that the elections should be De gravioribus & discretioribus viris, etc. of the most grave and discreet men. And Fortescue speaking of the Parliament, saith, 
Forts. ca 18.  We ought necessarily to think, that the Statutes of this Realm are made with great wisdom and prudence, Dum non unius aut centum solum consultorum virorum, sed plus quam trecentorum electorum hominum, quali numero olim Senatus Romanorum regebatur, ipsa sunt edita. For that they are not made by one, or an hundred only of sage judicious men, but by more than three hundred of chosen men: by such a number, as in times past, the Senate of Rome was used to be ruled.  
Object. But here it will be objected, that this Ordinance is not settled by Parliament, for that the King and many of his Nobles, were not there, nor never consented to it; and therefore that we ought not to esteem, or account, some few schismatical and factious persons (who seek their own ends, and not the common good) to be the Parliament: and therefore you mistake in giving of them the Style of the Parliament.  
Answ. A strange, unheard of, and illegal objection, a pretty trick and wild to mask illegal slanders, under illegal objections. It is a wonder to hear such strange, and as unparalleled, as unwarrantable, invectives, against the Parliament, which are published in the King's name, and under his protection, and patronage: while in the mean time, the King (whose distance of place, or affection, cannot divide from his Parliament, as I shall afterwards show) suffers in those very obloquys, and dishonourable detractions, which are coined for his honourable Assembly of Parliament.  
For, as all our books agree, the Parliament is as one body: and the chief or head of this body, is the King: and with this agreeth, Dyer, foe. 60. a. who saith, 
●yer foe. 60. 2.  that the Estate of Parliament consists of three parts: viz. of the King, as the chief Head; and of the Lords, the chief and principal Members of the Body; and of the Commons, Knights, Citizens, and Burgesses, the inferior Members: and these make the body of the Parliament. Now if it be thus, that the King, Lords and Commons make but one body, and that the King is the Head of this body, as in truth the Law is: than it will thus in reason follow, that no more than you can divide the head from the natural body, and yet preserve the body alive, can you divide the King from the Parliament, and yet have the Parliament continue, as in truth it doth: and I hope that there is none so void of reason, as to think, that the Kings dividing of himself from his Parliament, (for the case is utterly mistaken, to say that the Parliament, severs the King from them) shall destroy his Parliament, though I suppose, that many, who dare not bring their actions to the teste, would have it so.  
Now if it be so, that, notwithstanding this unhappy division, the Parliament doth virtually, and actually continue, (which, God defend it should be otherwise, for then Parliament, and no Parliament would be all one) then, of necessity, it must follow, that the King, who is the head of this great body, is not divided in Law, though he be in distance, for if so it must needs be, that the body would be destroyed, for that a Body (as I have said before) cannot subsist without a Head. And it must likewise follow, that they usurp no honour or power to themselves, more than by the Law is due, to style themselves the Parliament. And therefore whatsoever imputations, or dishonourable invectives (things too common in the mouths of many, who have not common reason, much less Law, to discover a truth) are imposed and cast upon the two Houses of Parliament, reflect upon the honour of the King, and are a great stain and blemish to it.  
Then if it be thus, that the Parliament, in judgement of Law, can do no wrong, and that no dishonourable thing ought to be imagined of them; certainly, they are the most proper Judges of this imminent danger. But to this it will be objected that the King likewise, in judgement of Law, can do no wrong, and therefore he notwithstanding this reason, may be as proper a Judge of the imminent danger, as any one, and upon this ground his judgement ought rather to be received then the judgement of any, yea of the Parliament itself; & he tells us, that there is no imminent danger, what then means this great contention about the Militia? To this I answer, that it is true, the rule of Law likewise is, That the King can do no wrong; but the reason of this is, for that it is presumed, that what the King doth, he doth upon the advice, & seducement of evil Counsellors, who with a spetious show, pretend nothing more than the good of the Commonwealth; whereas, in truth, they intent nothing less. And hath it not been frequent, for Kings, seduced by wicked and malignant Counsellors, to do those things which have been a dishonour to themselves, and a great gravamen and prejudice to the public: and if so, my conclusion is, that I would as willing a man should do me injury, upon his own principles, as by the advice of others; for though happily the wrong may not be so great, as to himself, yet the damage is all one to me. But now on the other side, who can tell, or what Story is able to relate, that ever a Parliament did do that thing, that was prejudicial to the Commonwealth? Why then if this position hold true, That Kings seduced, may injure the Commonwealth, but that Parliaments cannot: I conclude, notwithstanding this objection, that the Parliament, for this reason, are the most proper Judges of this imminent danger.  
Again, they are the most proper Judges of an imminent danger, who in probability may have the best cognisance, and information of it: but the Parliament (which is the representative body of the whole Realm, and the eyes of all the Kingdom) must of necessity have the best cognisance and information of any imminent and approaching danger: Ergo, they are the best and most competent Judges of it.  
Last of all, the Parliament are the most proper Judges of an imminent danger; for that they are those, whom the Commonwealth hath entrusted with its future happiness, they are our Judges, those whose judgement we have bound ourselves by our own free Election, to stand to, and therefore we cannot now recede from it, or see with other eyes than they see; if they say, that they see an imminent and approaching danger, we ought not to say, that there is no such matter; and if they say, that the Militia is well and legally settled, we cannot, nor ought not to say, that it is against the Law; for that our judgement is bound up in, and superseded by theirs. But to this it will be said, that this were a kind of implicit faith, or if I may so speak, a kind of Heresy in Law; for a man to be tied to subscribe to other men's judgements, and to believe that whatsoever they do, is lawful: To this I answer shortly, that there is a great difference, between a subscription of compulsion, and a subscription of consent; for volenti non fit injuria, that is, he that consents to the doing of a thing, is not injured by the thing done. Again, the Parliament would not have us to pin our faith upon their judgements, to believe without reason; for, as it is well known, they have published the justice and integrity of their cause, to the whole world, and have left their proceed to the judgement and determination of every private conscience; so that clearly this objection holds not.  
Then if the judgement of Parliament, be our judgement; what else do they then oppose their own judgement, who dare oppose the judgement of Parliament, which is folly? and what else do they but prefer their proper and private judgement, before the judgement of the whole Parliament? which is an extreme insolency; for that they represent the whole Kingdom: and are the most worthy part of it, and for that, we have, as I have said before, bound ourselves by our own consent and election, to stand to their judgement and determination. Wherefore, for all these preceding reasons, I conclude this point, that admitting the imminent danger were not perspicuous and manifest to every eye, that the Parliament as they are the most proper Judges, so they ought to be the only Judges of it, and no other person whatsoever.  
Now for the Objection, that many of the Lords and Commons, did never consent to the Ordinance of Parliament, for that they were with his Majesty, and that therefore this should make their determination invalid, and ineffectual: This is a more strange objection than the other, for that it is against the rule of Law, that any man should take advantage of his own wrong; and it is clear, that after the Parliament is once begun, their personal attendance is so necessary, and of such importance to the Parliament, that they ought not by the Law, for any business whatsoever, to be absent, and so is Dyer. 
Dyer. fo. 6●…  And by the Stat. of 6. H. 8. it is enacted, 
6. H. 8. ca ●…  that no Knight, Citizen, or Burges, absent himself, without licence of the Speaker and Commons, under the pain of the loss of their wages. And in 3. E. 2. Fitz: Corone 61. cited in Crompton Jur. 
3. E. 2. Fit●… Corone 6●… Crompt. Iu●… Courts. fo. ●…  the Bishop of Winton was arraigned in the King's Bench, for that he came to the Parliament, and departed without licence. Why then is it so, that their withdrawing of themselves, is a crime in them? Shall they then take advantage of this offence and neglect of theirs, of the Weal public; for the good of which, they were called and assembled together, to avise? certainly not. Besides, if this objection might hold, who is it that doth not see, what the inconvenience might be, Et argumentum ab inconvenienti est bonum in lege, an argument drawn from inconvenience, is good in Law. For by this invention, the conclusions and determinations of those who are present, intending the Weal public, (as in duty they are bound) should be all frustrated, and annihilated, by the absence of those, who voluntarily and against Law, withdraw themselves; which would be destructive to all Parliaments.  
For posito that all the Lords or all the Commons, should voluntarily and out of an indisposedness to the common good, withdraw themselves, and utterly refuse to perform that trust, which is reposed in them, of counselling and consenting to such Laws, which might establish peace, and a settled condition in Church and State: will any man think, that if in this time of dissertion of the Lords or Commons, there be an apparent & imminent danger, threatening ruin to the Commonwealth, if it be not in an opportune and seasonable time prevented, that in this case, it lies not in the power of the King and Lords, or of the King & Commons only, as the case is, by way of Ordinance, to settle the Kingdom in such a state and temper, as may prevent any approaching misery? Without question it doth, or otherwise this conclusion (as I have said before) would be destructive to all Parliaments.  
I agree, that an Act of Parliament cannot be made, by which a new Law should be enacted, that should be obligatory to the Subject for ever, (I mean until it were repealed by another Act) but by the consent of the King, Lords, and Commons; and with this accords the Books, 4. H. 7 
● H. 7. 18.  there an Act was made by the King and Lords, but nothing was spoken of the Commons; and by all the Judges, this is no act of Parliament. 7 H. 7. 
● H. 7 14.  No Statute except that the Lords and Commons assent to it. And 11. H. 7. 
●… H. 7. 27.  it is no act of Parliament, except it be made by the King Lords, and Commons. By this it is manifest, that all the three Estates ought to join in the making of an act of Parliament: and this is so clear, that I need not cite any other authority in proof of it, for ou● Books are plentiful in this point. Only I shall remember one remarkable case, which I find in our Law, to prove that the Books which say, That an Act of Parliament cannot be made, without the consent of the Lords, that this aught to be intended of the Lords Temporal only, and not of the Lords Spiritual: and therefore it is resolved by the Judges in 7. H. 8. Keilway. 
● H. 8. Keil●●y. fo. 184. b.  that the King may well hold his Parliament, by him, his Temporal Lords & Commons, without the Spiritual Lords: so that by this it was manifest, that they were not essentially necessary to a Parliament; for that the King might have holden a Parliament without them: and therefore it is not now so much to be wondered at, that they are totally excluded by Act of Parliament.  
But now on the other side, I conceive as clearly, under favour, that if the King do utterly forsake them, and decline their advice and counsel, to which he ought to adhere during Parliament, that in such case they may (as I have said before) make such Ordinances, without him, for the securing of the Kingdom, in case of exigency and extremity, as shall be obligatory to all the Realm, pending Parliament: for otherwise, they should have the name of a Parliament only, & not the power and virtue of it.  
But now it may be objected, that the King by his Prerogative, may call a Parliament when he pleaseth, and also adjourn and dissolve it when he pleaseth: and that the power given by the Writ of Summons, of the Lords to Parliament, is only ad tractandum & consulendum, etc. and therefore it will be concluded, that by the same power the King may command his Counsellors whither he pleaseth. To this I answer, and agree, that the King may call or dissolve a Parliament when he pleaseth, and so totally toll their power; but yet under favour, pending Parliament, unadjourned, the King can neither retard their proceed, nor take away their persons: and that I shall prove thus: the King, as fons Justitiae, the fountain of Justice, from whom all Judiciary power is derived, may likewise make, whom he pleaseth, to be a Judge, to dispense the Laws in justice and equity unto his people; but will it therefore follow, that when he hath made such and such to be his Judges, that he may either retard their proceed, or countermand their judgements, under favour, nothing less. Again, as I have showed before, they are punishable by the Law, for withdrawing of themselves: and it were hard, that the King should have power to command me that act, which being done, subjects me to a severe punishment. Now for that part of the objection, that they are but his Counsellors, and not his Judges: to that I shall give, as I hope, a full and satisfactory answer afterwards.  
And now I shall conclude this first ground or reason, with another answer to the objection, against the imminent danger, and this I ground upon the words in the King's Writ, by which he summons the Lords to Parliament; in the body of which Writ he saith, Mandamus quod consideratis dictorum negotiorum arduitate & periculis imminentibus, cessante excusatione quacunque, dictis die & loco personalitèr intersitis nobiscum, etc. that is, we command you, that considering the greatness of the business, and the imminent dangers, laying afide all excuse, you be personally with us, the said day and place, etc. Here the King by his Writ saith expressly, that at the time of the calling of this Parliament, there was an imminent danger; and as now it should be dishonourable for the King to contradict himself, so I do not conceive, that he shall be received to deny that extrajudicially, which he hath confessed by his Writ judicially.  
But to this it will be said, that the Writ, Est breve formatum, that is, it is a form Writ, or a Writ of course, and that there is no other, and that from this there is no varying; so that be the occasion of calling of the Parliament, what it will, the same form ought to be pursued, and no other; and therefore it is no concluding reason, that there is an imminent danger, because the Writ saith so. To this I answer, that we ought not to presume, that the King will speak any thing in a judicial way, as here he doth, which should be vain and superfluous; besides, if you consider the time in which this Parliament was called, when that the Scottish Army was in England, and at which time such distractions, and rumours of wars, did I say rumours of wars? I might have said War itself; was amongst us: when that the extreme insolency and pride of the Clergy; together with the darkness of superstition and Popery, had almost overwhelmed this Nation with imminent destruction and misery: the fear of which doth yet cloud the face of the poor Commonalty, I say, these things considered, we may justly conclude, that the King, at that time, spoke as he intended, and therefore certainly now, he shall not be received to contradict it. Wherefore I conclude this first reason, that by reason of the imminent danger which threatens the Commonwealth, the King refusing to settle the Militia, the Parliament may well do it.  
Secondly, I hold that the Parliament may do it; for that the King by his refusal hath made a breach of that trust that is committed to him, by God, and his people, that there is a trust committed to him, and that the greatest also, that any one under God can have, I have in part demonstrated it before; for I have shown how that he is bound by the Law to defend and protect his people, their lives, liberties, and estates, from any foreign or domestic danger; and saith Fortescue, ca 13. cited before, 
●●●tesc. ca 13.  Rex ad tutelem legis, corporum, & bonorum, erectus est: he is erected King, for this purpose, and intent, to defend the Law, the bodies and goods of his Subjects. And he saith himself (as I have likewise shown before) in the Commission directed to Commissioners of Sewers, that by reason of his royal dignity, Astrictus est ad providendum salvationi regni sui; He is bound to secure his kingdom. And this he is bound to do by the Law, and Justice: for he ought to rule according to Law, and for this purpose he is entrusted with the Law also: and therefore in 8. H. 7. it is said, 
〈…〉 7. fo. 1. 2.  that the King is conservator of the Law, the which is the Common-weal. As if it had been said, the Common-weal, depends upon the Kings well keeping, and observing, of the Law. And in many places of Bracton, amongst which, this is one: fo. 55. b. he saith, 
●●●ct. fo. 55. b.  Sciendum quod ipse Dominus Rex, ordinariam habet jurisdictionem, & dignitatem, & potestatem, super omnes, qui in regno suo sunt, habet enim omnia jura in manu sua quae ad Coronam, & laicam pertinent potestatem, & materialem gladium, qui pertinet ad regni gubernaculum, habet etiam iustitiam & iudicium, quae sunt iurisdictiones, ut ex iurisdictione sua, sicut Dei Minister, tribuat unicuique quod suum fuerit: that is, we must know, that the King hath ordinary jurisdiction, and dignity, and power, above all which are in his kingdom; for he hath all the Laws in his hand, which do pertain to the Crown, and lay power; and the material sword, which belongeth to the government of his kingdom; he hath also justice, and judgement, which are jurisdictions, that by his jurisdiction, as God's Minister, he may give to every one, that which is his own. Here you may see, that the King is entrusted, with the Laws, and Justice, as also with the material Sword, to this end, that he may defend his people committed to his charge, as well by force, if occasion be, as by righteous judgement. And to this also he is bound by his Oath, as I have said before, which I find in Bracton, foe. 107. 
Bract. fo. 107 a. ca 9  by which he sweareth that In omnibus iudiciis aequitatem praecipiet, etc. ut per Justitiam suam firma gaudent pace universi: that is, that he will use equity in all his judgements, that all, men may enjoy a firm peace, by his justice. And there he further saith, that ad hoc creatus est & electus, ut iustitiam faciat universis, etc. & quod iustè iudicaverit, sustineat, & defendet, etc. He is created, and elected King, for this purpose, and intent, to do justice to all men, and that he should judge justly, sustain and defend them. And with this accords 6. H. 7. where it is said, 
6. H. 7. 16.  that the King is bound for to do right to parties. And as he ought to rule according to Law, so he himself, aught to be governed by the Law, as I have showed before. And as Bracton saith, 
Bract. fo. 5. b.  fol. 5. b. Ipse autem Rex, non debet esse sub homine, sed sub Deo, & sub Lege, quia L●x facit Legem: The King ought not to be under man, but under God, and the Law. Now I conceive that it is manifest, that the King is entrusted with the Laws, lives, liberties, and estates of his Subjects, all which he of right aught to defend in peace and tranquillity, as he also by his Oath is bound; and therefore Bracton saith, 
Bract. fo. 55. ●  Est Corona Regis facere iustitiam, & iudicium, & tenere pacem, sine quibus corona consistere non potest nec tenere: It is the Crown of the King to do justice, and judgement, and to maintain peace; without which, his Crown cannot stand and continue: as if he had said, it is so essential to the King to do justice and judgement; and to maintain peace, that you destroy the Crown, if you take away these.  
Now I shall prove, that the King hath made a breach of this great trust committed to him, four ways. First, by denying of his Protection to his people. Secondly, by not supporting of the Laws, and the Privileges of Parliament. Thirdly, by not endeavouring to maintain peace amongst his people. And fourthly and lastly, by denying of Justice; and in all these particulars I shall prove, that the King hath broken the trust committed to him.  
And first, he hath broken the trust committed to him by denying of his protection, and this he hath done three ways. 1. By denying of his legal protection, that is, in not protecting of his people according to Law: and this he hath done, by denying to settle the Militia, by the advice of his great Counsel, according to Law: by whom only, during Parliament, he ought to be advised, for during the continuance of this great Counsel, all inferior Counsels ought to cease: and therefore the Counsel of others neither can, nor aught to countermand theirs: but of this I shall speak more fully afterwards. 2. The King hath denied his Royal protection to his people, in taking up of Arms against his Parliament, who is the representative Body of the whole Kingdom: and this is the most strong refusal of his protection, of all others, for by this he doth not refuse only to protect them, but he goes about to destroy them, whom, by the Law, and his Oath, he is bound to preserve and defend. And thirdly and lastly, he hath denied his royal protection to his people in this, that in time of imminent danger to the Kingdom, he hath denied to settle the Militia; and he that denies the means, denies the end. For it is a rule with us in our Law, that Qui tollit medium, tollit quoque finem: He that takes away the means, takes away the end. And it is all one in effect, to deny a thing, as to deny the means per quod pervenitur ad illud: by which you may come to the thing. Now it is clear, that the sole means, under God, to defend this kingdom, in time of imminent danger, from its enemies, either foreign or domestic, is, by settling of the Militia, and by putting of the Forts, and Magazine of the kingdom, into faithful and true hands, such as may be confided in, being a matter of so great consequence, and of so high importance to the whole Common-weal. Now the King refusing to do this, doth he not in effect, deny his protection to his people? for denying of the means, it is all one as if he had denied the end: so that I conceive, for these reasons, the King hath denied to protect his people, as by the Law he is bound, and therefore hath made a breach of the trust that is reposed in him.  
Secondly, I conceive, that the King hath broken this great trust, in not supporting of the Laws, and the privileges of Parliament; that he hath not maintained the Law appeareth plainly, by that, that I have said before, for that he hath refused to be ruled by it, as he ought: for though that he is not sub homine, under man; yet he is sub Lege, under the Law, as I have showed before, and therefore aught to be governed by it. And what is this but a refusing to be ruled by Law, when he refuseth upon the prayer of his Parliament to settle the Militia for the defence of his Kingdom, and people, according to Law? And that the King hath broken the Privileges of Parliament, what more plain? I might instance in many things, but I shall instance in only one or two: And here I appeal to all the world, whether his withdrawing of himself from his Parliament; and not only so, but his endeavouring, by his many detractions and imputations laid upon his Parliament, to withdraw all the hearts of his people from them likewise: and, which is yet worse, his supporting and maintaining of such men, and keeping of them from justice and their condign punishment, who are Delinquents in a high nature, against his Parliament: I say, that I appeal to all the world, whether these be not great breaches of the Privileges of Parliament? and what greater breach of the privileges of Parliament can there be? then to protect and defend them, without any colour of Law, or justice, who endeavour nothing, but the ruin of Parliament, and in this, of our Laws, lives, and liberties: so I conceive, that this also is a breach of that great trust which is reposed in his Majesty, by God, his people, and the Laws of the Land.  
Thirdly, I conceive that the King hath infringed this great trust, by not endeavouring to maintain peace: and this two ways, by his commission, and omission; by his commission, in taking up of Arms against his people, as I have said before, and then by his omission, and not only so, but by an absolute refusal, in this time of imminent danger, to settle the Kingdom in a posture of defence, the sole means, under God, as I have said, to maintain peace and tranquillity amongst us: and this i● against his Oath also, which the King himself was pleased of late to publish to his people: which I find likewise expressly in Bracton, 
Bract. fo. 107.  that the King first sweareth, Se esse praecepturum, & pro viribus opem impensurum ut Ecclesiae Dei & omni populo Christiano, vera pax, omni suo tempore, observetur, that is, that he will endeavour to the utmost of his power, that true peace may be kept & observed, to the Church of God, and to all Christian people, all his days.  
Fourthly, and lastly, I conceive that the King hath broken his trust, by denying of justice: and this he hath done two ways; sirst, by denying to surrender up Delinquents to the Justice of the Law: and secondly, by denying to settle the Militia, by and according to the advice of his great Counsel the Parliament. Now that the King is obliged to do Justice, it is without question, for his very Oath (as I have showed before) ties him expressly to it, and so is 6. H. 7. cited before, and Bracton, foe. 107. a. where he saith, 
Bracton fo. 10●…  that Ad hoe creatus est & electus ut justitiam faciat universis, etc. He is created and elected King, for this purpose and intent, that he may do justice to all men. And what greater act of Justice can there be, then for the King to defend his people in peace? or what greater act of Justice can there be, then for the King, at the request of his people, represented by the body of Parliament, to enact such Laws, which conduce to the maintaining of peace? Certainly none. And this Bracton seemeth to intimate, 
Bracton. fo. 10●…  Sinon esset qui justitiam faceret, pax de facili potest exterminari, etc. If there were not one who would do Justice, peace might easily be extirminated. Here note, that he doth not say, that our lives, Laws, Liberties, or Estates, for want of Justice might easily be extirminated; but our peace, by this, as it were, concentering all Justice in this act of maintaining peace: and without question, all our happiness, under God, consists in the supporting and maintaining of peace: for, take that away, and all things fall to utter ruin and destruction. And certainly, if it be thus, that the greatest act of Justice in the King that can be, consists in maintaining of peace, and in granting of such Laws, which conduce unto this end, without question the denying of this by the King, must needs be the greatest act of injustice in the King that can be, and by consequence, a breach of that trust, that is reposed in his Majesty. And therefore I do conceive, that at the least in this, the King can have no negative voice: and I do not conceive, that the King can have any negative voice in Parliament, in other things; for if the King, by his Oath, and the Law of the Land, be obliged to do Justice, (as in truth he is) and if it be as great an act of Justice in the King, as can be, not only justly to dispense the Laws in esse, in being, to his people; but also to grant such new Laws unto them as conduce to the well governing of them, in peace and happiness. Why then certainly it must of necessity follow, that the King can have no negative voice; but is bound under this heavy sin, of the breach of his Oath, and the Laws of the Land, to grant such Laws as are requested of him by his people.  
But here it may be objected, that the King had this Prerogative by the Law, that he might have called a Parliament when he pleased, and there was no positive Law to the contrary, before this Parliament, in which the King hath devested himself of this power; and if before at the request of his people, he had not been pleased to grant them a Parliament, why, this in effect, was a denier of Justice, for that the King denied the means by which it might be obtained, and yet this was lawful for him to do; therefore it will be concluded, that by the same reason he may have a negative voice in Parliament. And Cromp. Jur. of Courts saith expressly, 
Cro. jur. foe. 7. b.  that when the King doth assent to a Bill, than he writes upon the Bill, L' Roy veult, that is, the King will have it so; and if he doth not assent, than it is endorsed L'Roy advisera, that the King will advise; here it doth appear how the King hath a negative voice allowed him by the Law. To this I answer, and agree, these Prerogatives de facto to be in the King, but whether in truth, they be such as are compatible, and may stand with the Oath and Justice of the King: this may be questionable, and under favour, I conceive that they cannot; for that, as I have showed, his Oath and the Laws of the Land, ties his Majesty to do Justice to his people, and the granting of new Laws unto them, upon their request, is an Act of Justice, and therefore he cannot deny them without breach of his Oath, and the Laws of the Land; and by consequence, these prerogatives are not compatible, with the Oath and Justice of the King; and though peradventure the Law may dispense with itself, yet it cannot with the Oath of the King. Wherefore I conceive, notwithstanding this objection, that the King can have no negative voice: but of this only by the way.  
And is it thus, that the King hath made a breach of that trust reposed in him, by God and his people? as in truth, I have cleared it unto you: then none so proper to supply this defect, in his Majesty, by the disposing of the Militia, for the defence and protection of the King & Kingdom, as the Parliament, who are at this time entrusted, under God, not only with our esse, with our being, but with our bene esse, with our well-being also.  
But here it may be objected, that the King derives his Crown and regal power from God, and that therefore he is responsible to God alone for his actions, and not to man: To this I answer, that it is a most strange Episcopal and illegal objection; for what is this but the attributing of a power to the King above Law? and the giving of him such a prerogative that should not be subject to those Constitutions, which his predecessors before him had been, and though it should be admitted, that as all power is derived originally from God, so especially this; yet it doth not follow, that it was therefore conferred by an extraordinary and immediate hand of God, as it was upon Saul and David, 
1 Sam. 9 & 24.  yet they likewise were confirmed and approved by the people, as you may read in holy Writ. Besides, Saul and David, lived not under any Municipal or positive Constitutions of men, which they were bound to maintain and observe, as the King of England doth, and therefore it must needs be, that their power must be more absolute, which was not circumscribed within the bounds and limits of any humane Laws. But now the Kings of England having subjected themselves to the Law of the Land, and received their Crowns with that trust and  condition, of defending of the Laws, lives, and liberties of their Subjects: the Law were idle and vain, if there should be none that should have this power, for the breach of this trust by his Majesty, to interpose for the securing of him, his Laws, and people. And if this divine prerogative, which the Bishops do so buzz into the King's ears, should be admitted, I would feign know what difference would be made, betwixt an absolute Monarch, and the King of England: and clearly this was never reputed for other, nor can be (the Crown being subject to the Law as well as the people) than a mixed Monarchy: but I shall conclude this, that they who so much defend and exalt this divine prerogative, would in the conclusion (if they might have their way) upon the same ground, advance the Mitre above the Crown. God open the King's eyes, that he may see and acknowledge himself subject to the Laws, and may rule his people accordingly: and grant that he may detest such advice, as dangerous to the State, and the suggesters of it, as Pests and Traitors to the same.  
But it may be again objected, that this was a conquered Nation, & therefore by the Law of Conquest, the Conqueror might have made what alterations in the Law, or State, he pleased; but he retaining the Law, and subjecting himself to it (who might have advanced himself above it) will it therefore follow, that in so doing, he hath subjected himself to his people likewise? if he transgress it, Deum habet ultorem, God will revenge it, but it was never his intent to give his people that power.  
To this I answer, that retaining of the Law, and subjecting of himself unto it, he is bound by it, and all his Successors after him; and it were in vain (as I have touched it before) to establish a Law, and to give none power to put it in execution: Wherefore I conceive, that that Law that binds the King, will for the breach of the same, authorize his Parliament, though not to inflict any penalty upon his sacred person, God forbidden, yet to provide for the securing of him and his Kingdom; for otherwise (as the sad consequence of it would make it good) it would be, in effect, but as a dead Letter.  
But now further it may be objected; Shall they have such an arbitrary way of power, as this is, to do any thing by way of Ordinance, without the King? If this may be suffered, they may Metamorphize and change the Law, into what shape they please, or which best agrees with their humours: so that if they order, that land shall from henceforth descend to the youngest son, contrary to the course of common Law, (as I think the case was put) if this ordinance should bind the Subject, he should here at once be deprived of a double birthright and inheritance, viz. of his land as heir, and of the Law as a Subject; which would be very hard and unreasonable.  
For that part of the objection, of their arbitrary way of proceeding, I shall in part here answer it; but more fully afterwards: for the objection, that they cannot do it by way of Ordinance, without the King: To this I answer, that in case of imminent danger (as now) the Kingdom must needs perish, if they should not have this power, for they have no other way to aid the Kingdom in time of imminent danger, by settling the Militia of it, but by way of Act, or Ordinance, and if the King refuse, by their advice, to settle it, by way of act (as in truth he doth now) than we must of necessity, allow a power in the Parliament, Ne pereat regnum, lest that the Kingdom perish, by way of Ordinance to settle the Militia, for the defence of the same; for otherwise, the King should have power, when he pleaseth, to destroy his Kingdom, and the people should be left naked of any ability, to preserve and defend themselves; which were very unreasonable, and unnatural; for nature itself, hath not only established it as a Law, that all creatures may defend themselves from unnatural violence, but hath armed them accordingly.  
And now I shall prove, that as the Parliament are the most proper and only power, to provide for the securing of the Kingdom: and a● they have no other way to do it: so they are obliged to take this way: and this they are tied to by their Oaths of Allegiance, Supremacy, and their late Protestation; for by these they have all sworn, vowed, and protested, to defend the King, his royal person, and estate, and to be true and faithful to him; now it is impossible for them to defend the King, and to be true and faithful to him, if they, in time of imminent danger, do not endeavour, as much as in them lieth, to defend his kingdom; for there is such a reciprocal and dependent relation, betwixt the King and his Kingdom, that the one cannot subsist without the other: for if they permit the kingdom to be destroyed, the King must of necessity be ruined also. If the Master die, the relation of a servant must needs cease: for that relatives cannot subsist, the one, without the other. And if the kingdom fail, the King and Sceptre must needs fall to the ground. And this is, in part, the reason of that pollity of Law, in the 7. Rep. calvin's case, 
7. Rep. 12. calvin's C.  that the King is a body politic, lest there should be an interregnum; for that a body politic never dieth.  
Why then is it so, that they are bound by their Oaths to defend the kingdom, as well as the King? as in truth they are, for that the King cannot subsist without the kingdom; then the consequence must of necessity be, that the Parliament, in this time of imminent danger, hath well done in settling of the Militia, for the defence and welfare of the King and kingdom: and that in so doing, they have not only not done more than what they might do, but they have done no more than what they were bound to do, and this under the heavy sin of perjury.  
But here it may be objected, that this is a corrupting and dividing of the Text; for that the Oath of Supremacy doth not only bind us to be true, and faithful to the King, but also to defend, all Jurisdictions, Privileges, preeminences, and authorities, granted, or belonging to his Highness, etc. And the having of the sole disposing of the Militia is one of the privileges of the Crown, and appertaining to his Highness: and therefore we are bound likewise, by this Oath, to defend this privilege of the Kings, against any who shall endeavour the taking it away from his Majesty.  
To this I answer, and agree, that the King (as I have showed before) hath this privilege and prerogative given unto him, and with him entrusted by the Law for the good of the Commonwealth: but I never heard that he had it allowed him, for the destruction of the same. Again, I agree that the Oath of Supremacy obligeth every man to defend the privileges and preeminences of the King: but I do not conceive, or believe, that this aught to be so construed, that any man by the Oath of Supremacy, is bound to defend the privileges of the King, against the weal public: for if the weal public, and privileges of the King, stand in competition, without question the public interest and welfare ought to be preferred. And therefore if the King do not employ and use his privileges according to the trust reposed in him, but rather contrary to it: certainly this doth disoblige every man from that tie and engagement in this particular, with which he was bound by the Oath of Supremacy. For so to construe the Oath, that I should defend the privileges of the King, though it be in destruction of the commonwealth: were to make the Oath the most hard and unreasonable tye in the world: whereas, every Oath, amongst other qualifications, ought especially to have these two: viz. that it be explicit, I mean, without implications, or etcetera's: and reasonable; and it would be very unreasonable for a man to swear to such a thing as would be his own destruction: but à fortiori, where it would be the destruction of the Commonwealth. And as it is said, Pereat unus, ne pereant omnes; let one perish, that all may not perish: So I say, Pereant privilegia Regis ne pereat Regnum: it were much better, that the privileges of the King should totally cease, or at the least, be suspended for a time, then that the kingdom should be endangered.  
But now I shall demand of any man an answer to this question: whether doth most stand for and defend the privileges of the King: either he that endeavoureth to the utmost of his power to defend and support the Common-weal, in imminent danger: or he that indeavoureth the destruction and ruin of the same: this is the very difference, between the Parliament and the Malignant party: the Parliament use all means possible to defend the King and kingdom from ruin; and the malignant party use all their skill to make both for ever miserable; This question is in itself pregnant of an answer: and the very putting of the case, is a solution of the question: For, no doubt, every wise and ingenious man must needs conclude within himself, that they most defend the privileges of the King, who most endeavour the safety of the King and kingdom, and that is the Parliament: so that this Objection fails in th● very foundation of it.  
And now having answered that part of the Objection, that we ought not to defend the privileges of the King against the Common-weal: and having likewise showed, that he most endeavours the defence of the privileges of the King, who seeks most the good and prosperity of the Common-weal. I shall now answer the latter part of the Objection, that there is none that goeth about the taking away of the privileges of the King: but only to employ them in defect of the King, according to the trust reposed in his Majesty. For as I have showed before the King is tied to protect his Subjects from any foreign invasion, or domestic danger: and now the King refusing to do this, by putting of the kingdom into a posture of defence; the Parliament, according to the trust reposed in them, have, in defect of the King, and in his right, assumed to themselves this great charge, of settling of the Militia, for the security of the King, and people. And here I shall bid malice itself speak, whether it hath been employed to any other end or purpose, then that for which it hath been always pretended: viz. for the defence of the King and kingdom? or whether the Magazine (which is pretended to be taken from the King) whereas in truth it is employed by the King, and for the safety of him, and his kingdom (as I shall afterwards show) hath been converted to any private property: or otherwise disposed of, then for the common good? and if so, certainly here is no divesting of the pretended property of the King: but that it still remaineth in statu qu● prius: in the same state that it was at the first. But if it should be admitted, that this privilege of the King is at this time taken from him: I conceive that it may be so, as this case is: For, as I have said before, it were better that the King should lose his privilege, then that the kingdom should perish. I agree the rule of Law, that the King, regularly, cannot grant over his Prerogative; and with this accords 4. Rep. 7. Rep. 14. H. 4. 2. H. 7. 20. H. 7. 
4. Rep. 73. 2. 7. Rep. 25. b. 14. H. 4. 9 2. H. 7. fo. 13. 20. H. 7. fo. 8.  and many other books: except in some special cases, as in the 2. Rep. and the 5. Rep. 
2. Rep. fo. 44. a. 5. Rep. fo. 56. b  and the difference upon the books may be this, where the Prerogative is merely personal, and where not: where it is merely personal, there it is not grantable; but where it is not merely personal, there it is: Now in our case I do conceive, and shall agree, that the ordering of the Militia of the kingdom, is a prerogative, so merely personal in the King, that it cannot be granted over to another. But it doth not therefore follow, that it can by no means be severed; especially, as in this case, when it so much concerneth the good of the Common-weal. Wherefore, I conceive clearly, that the King cannot grant this prerogative over to another, for that he only is entrusted with it for the weal public: and as we well know, parties entrusted, cannot grant their trust over: for that a trust is merely personal, and therefore not severable. And the King can no more grant over his prerogative of protection, or power of ordering of the Militia, to another, than he can dispose of his Crown, or royal dignity, to another: and that he cannot do, for King John surrendered his Crown to the Pope, and this was adjudged to be void, for that it was given to him by God, and the Law, in trust, for the well governing of his people. 
Rot. Parl. An. 40. E. 3. Nu. 8.  And therefore by his own act, or grant, cannot be severed from him: For an office of trust, by the Law, is not grantable over. But on the other side, we see, how that Crowns of Kings have been taken from them, by the people, as in case of R. 2. and others: I do not speak this in justification of the deposing of Princes, God forbidden that I should, their persons are sacred: for that they are Gods anointed, and his Vicegerents, or Vicarii Dei, that is, God's Vicars, as Bracton styles them: against whom, God hath laid an inhibition, that we use not any violence, Touch not mine anointed: and therefore for my part, I conceive, that that damned opinion of the Spencers, in the reign of E. 2. that if the King did not demean himself, by reason in the right of his Crown, that his Liege's were bound by oath to remove the King: and that if the King could not be reform by suit of Law, that it ought to be done per aspertee, I say that, I conceive that this was justly damned, as in truth it was afterwards by two Acts of Parliament; the one in the Reign of E. 2. called Exilium Hugonis de Spencer: and the other in 1. E. 3. ca 1. 
Stat. E. 2. cal●ed exilium Hugonis de Spencer. 1. E. ●…. ca 1.   
But now, though that the King cannot grant this Prerogative over, as I have said before yet, under favour, I conceive clearly, that it li●th in the power of the Parliament, for the prefervation of the Kingdom, in case of imminent danger, as now, to settle the Militia in hands to be confided in; for, as I have said before, the prerogative of the King must give way to the weal public, and not the weal public to the Prerogative of the King. For if the Prerogative of the King ought not to be advanced to the prejudice and wrong of the interest of any private man, as I have showed before, much less, to the wrong and injury of the republic. And with this difference ought Bracton to be understood, who saith, 
Bract. fo. 55. b.  that, Ea quae jurisdictionis sunt, & pacis, & ea quae sunt justitiae & paci annexa, ad nullum pertinent, nisi ad Coronam & dignitatem Regiam, nec à Corona seperari poterunt, cum faciunt ipsam Coronam. Those things that belong to jurisdiction and peace, or are annexed to them, appertain to none, but the Crown, and Royal Dignity, neither can they be severed from it, for that they make the Crown itself. Now as I have showed before, these words of Bracton, Ea quae pacis sunt, etc. those things that belong to peace, must necessarily intent Ea quae bel●● sunt, those things that belong to war also, for that it is impossible for the King, Absquerebus Militaribus, that is, without the Militia, to defend his people in peace and safety; And for that, that he saith, that this cannot be severed from the Crown: this aught to be understood, by his own act only: and not that it cannot be severed from him, though in his own default, by his Parliament. For, to make such a construction, were to make a Law, destructive to that, for which it was principally, and in the first place, made to preserve; and that is the Commonwealth. And the like construction and explanation of his words, Bracton maketh afterwards, for he saith, Ad personas, vel ten●mēta transferri non poterunt, nec à privata persona possid●ri: they cannot be transferred to persons, or Tenements, nor be possessed of a private person; which cannot be otherwise intended, then of the grant of the King, for transfer, that is, to transfer, is no other than concedere, that is, to grant. And I agree with Bracton in this, that the King cannot grant over this prerogative: but this position, doth no way conclude against the power of the Parliament, as our case is.  
But here Mittens case in the fourth Rep. 
4. Rep. Mittens case.  cited before to another purpose, may be objected against me, where it is resolved, that the Queen could not take away the grant of the Office of the Clerk of the County Court from the Sheriff: in which case, there is another case also cited to be adjudged by all the Judges of England, viz. that the grants of the custodies of Goals of the Counties, by the King are void; and the reason that is given for both these Cases, is, that the Sheriff having these Offices appendent to his Office (as in truth they are) is by the Law responsible for all misdemeanours done in those Offices, and therefore it is against all reason, that the grant of them should be taken from him; but that he should have power, to put in such into those Offices, for whom he should answer. Now the force of the objection stands thus; if these Offices cannot be severed from the Sheriff, because that by this he should be disabled to perform the trust reposed in him, and yet should be responsible for all misdemeanours done in those offices, which would be very unreasonable: à fortiori, you shall not take away this privilege from the King, for by this he should be disabled, either to protect and defend his people, as by Law he is bound, or faithfully to discharge this great trust reposed in him, as God requireth. To which I answer, that there is a great and wide difference betwixt the cases; for first, in the case of the Sheriff, the depriving him of the grant of these Offices, concerns only his private interest, & not the Commonweal; I mean, the Commonweal stands not in competition with the Sheriff's right, as in our case; and therefore in this, the difference is great. But, which makes the cases much more to differ: in the case of the Sheriff, there was no act or default in him, for which to deprive him of this benefit; and it is a rule in our Law, that Quod nostrum est, sine facto, sive defectu nostro, amitti, seu ad alium transferri, non potest; a man shall never be devested of his property, without his own act, or default. But otherwise it is here in the case of the King, for, if there be no act, yet I am certain, that there is a defect or default in the King, in refusing, in this time of imminent danger, to put the Kingdom, according to the advice of his great Counsel, in a posture of defence.  
And it is no new thing, for a man to lose his interest in his own default: Upon this I might multiply cases; but I will put only one or two familiar and ordinary cases in our Books. If I make an estate for life, or years, to another, without condition expressed, yet the Lessee hath not the estate so absolute in him, but that by a  condition in Law, running with every such particular estate, he may, by his own default, lose his estate; and therefore if he commit waste, he subjects his estate to be evicted by the Lessor; or if he assumeth to himself, to grant a greater estate to another, than he himself hath, by this he forfeiteth his estate. But you will peradventure say, that this case doth not agree with the case in question, for that the King hath an estate of inheritance in his Crown, which goeth in succession to his posterity, as well as the private interest of any Subject: This I agree, but under favour, he hath this committed to him in trust; this  condition runneth along with it, that he use his regal power and authority, for the good of the public; or if he doth not, that then his great Counsel for breach of this trust, and non-performance of this  condition (though that they cannot meddle with his sacred person, by dethroning of him, or divesting of him of the regal Sceptre) may provide for the securing of him and his Kingdom.  
Again, it is clear by the Law, that misuser or non-user of any Franchises, Privileges, or Offices, is a forfeiture of them; but especially of any public Offices, which concern the administration of Justice, or the Commonwealth: and with this agreeth 5. E. 4. 8. H. 4. 20. E. 4. and my Lord Cook in his Comment upon Littleton: 
5. E. 4. 5. 8. H. 4. 18. 20. E. 4. 6. Instit. 233. a.  and many other Books. Now it is as clear, that to be a King, is an Office, though it be the greatest Office that any one, under God, can have: and what Office so much concerneth the administration of Justice, and the good of the Commonwealth, as this doth? and therefore, though this great office, be no more forfeitable, than it is grantable by the King: for I conceive that to be regularly true in the Law, that that which is not grantable, is not forfeitable: yet, God forbidden, that his great Counsel, for his misuser, or non-user of his Kingly function, should not have power, for the breach of this  condition, to apply themselves, by all lawful means, for the securing of him and his Kingdom.  
I shall compare this case, to one case only, lately adjudged, viz. Hill. 17. Car. in the King's Bench, Langhams' case, 
Hill. 17. Car. in Banco Regis Langhams' case  where the case was thus; Langham a Citizen and freeman of London, was elected Alderman of the City, and being called to take his Oath, refused, for which he was committed to prison by the Court of Aldermen: upon which he prayed his Habeas corpus in the King's Bench, and it was granted unto him: and upon the return of the Writ, they did allege, that they had this custom, that if any man were elected Alderman of the City, and refused to take the Oath, that the Court of Aldermen had used, time out of mind, to imprison the party so refusing: and then they set forth, de facto, how that Langham being a Citizen and freeman of London, was duly elected Alderman, of such a Ward; and that he being called to take the Oath, refused, and that therefore he was committed by the Court of Aldermen: and the question here was, whether the custom to imprison the body of a freeman, were a good custom, or not? and it was resolved upon solemn debate, by all the Judges of the King's Bench, that the custom, as this case is, is a good custom: and this is the difference that was taken by them, that a custom generally for a Court of Record to imprison the body of a freeman, is no good custom, for that it is against the liberty of the Subject, and Magna Charta, by which it is enacted, Quod nullus liber homo capiatur, aut imprisonetur, etc. that is, that no freeman be taken or imprisoned; 
9 H. 3. ca ●…  but Per●legem terrae, etc. by the Law of the Land. But a custom, as in this case, for to imprison the body of a freeman, for refusing to take an office upon him, which is for the support of government, and without which government cannot subsist, which by consequence, strikes at the very esse, and foundation of the Commonwealth; for that it cannot stand without government: such a custom was resolved to be a good custom. Now I shall compare this case, with the case in question: it is here resolved, that a custom for to imprison the body of a freeman, for refusing to do such a thing, which by consequence reflects upon the Common wealth, and may endanger it, that this is a good custom: now thus stands the parallel: and as the rule of Law is, Vbi eadem ratio, ibi idem jus, where there is the same reason, there ought to be the same Law. Now the same Law, that defends the King's prerogative from violation, or separation from the Crown, doth as strongly, Et eodem jure, by the same right, defend the liberty and freedom of every private man's person from imprisonment; for, though the interest and privilege of the King, do fare transcend any singular and private persons, being compared with them, yet they stand in equipage, In equali jure, that is, in equal right, being compared with the Commonweal; and therefore aswell the interest of the King, as of his Subject, Debent cedere Republicae, aught to give way to the Commonwealth: And yet we see, that as a man's person, for the good of the Commonwealth, shall be set at large, and free from imprisonment, as it is resolved in 36. & 37. H. 8. Dyer. 
36. & 37. ●… Dyer. fo ●… Trewynni●… Case.  Where a man was elected a Burges of Parliament, and being in execution was let at large, by a Writ of privilege, and adjudged that his enlargement was lawful, and that the Sheriff was by this excused: So on the other side, a freeman's person, by a private custom, contrary to Magna Charta, may for the good of the Common wealth be imprisoned: and without question, the Subject may as justly demand of the Law, the freedom of his person from imprisonment, as the King, of his prerogative, from violation, or separation; and yet no privilege, no, not of the person itself, of a common person, aught to be preferred before the common good: and by the same reason, not any privilege of the King; for, though the King be much greater, and much to be preferred, before many thousands, of individual or particular persons; yet, without question, the universe or Commonwealth, is to be preferred before the King, or any interest or privilege whatsoever of his: so that, for all these reasons, I conceive, that the prerogative of the King, may, as this case is, be severed from him: and therefore, that the Parliament (admitting that they have taken it from his Majesty) have done no more than what is warrantable by the Law.  
But now, if all that I have as yet said, will not sufficiently justify the Parliament in their proceed, concerning the Militia: I shall add a third reason to prove, that what they have done, is lawful: and that is this; what they declare to be Law, binds the King, by an inclusive judgement, & then their judgemennt, being the judgement of the King, and their Votes and Declarations of the Law, including the royal assent and declaration: the King cannot afterwards by a subsequent Declaration countermand his own judgement, tacitly included in theirs: and by consequence, the prerogative of the King suffers no violence; for Volenti non fit injuria, that is, a man that consents to the doing of a thing, is not injured by the thing being done. Now that their Declarations of the Law, includes the King, and shall bind him, I shall presently prove it: First, it is clear, that the Parliament consisting of the three estates: viz. of the King, Lords, and Commons, are a Court; and it is as clear, that they are the greatest and highest Court in England; in which, Justice is administered by the King, in those Worthies, unto his people, in the most high and transcendent way that can be: for the King doth not appear with that splendour and brightness of Justice and integrity; neither is he so true and clearly represented to his people, in those glorious rays of his, in any Court of Justice whatsoever, as he is, in his thrice great and honourable Court of Parliament. Now that it is a Court, and that the greatest Court in England, in the 9 Rep. Epist. ibidem, 
●…p. Epist 〈◊〉  my Lord Cook saith, that among other appellations, it is called by the name Magnae Curiae, etc. of the great Court. and in Pl. Com. fo. 388. 
〈…〉 fo. 388.  the Parliament is a Court of thrice great honour and justice, etc. and Bracton 34. a. 
〈◊〉 foe. 34. a.  Rex habet etc. Curiam suam, viz. Comites Barones, &c. the King hath his Court, to wit, Earls, Barons, etc. and Fleta lib. 2. ca 2. 
〈◊〉 li. 2. ca 2.  Habet etiam Rex Curiam suam, in Consilio suo, in Parliamentis suis, etc. the King hath his Court, in his Counsel, in his Parliaments, etc. and Crompton in his Jurisdiction of Courts, 
●…p. ●ur. d' ●…s. fo. 1. 2.  gins with the description of the high Court of Parliament, giving it the precedency in act, as well as in words: where he saith, that the said Court, is, L'treshaulte Court d' Engliterre, that is, the thrice high Court of England: in which, saith he, the Prince himself sits in person, etc. And I shall conclude this with Dyer, who saith, 
Dyer fo. ●…  that this Court of Parliament, is the highest C●u●t, and hath more privileges than any other Court of the Realm, etc. And all this is made clear, without further saying, by this, that no appeal lieth from this Court; no reversal of their judgement, but by the judgement of a subsequent Parliament.  
Then this being admitted, that the Parliament is the greatest Court in England, I shall argue thus: is the King by intendment of Law, present in all his other inferior Courts? as in truth he is, as 21. H. 7. and 2 & 3. Eliz. Dyer. 
21. H. 7. f● 2. & 3. Dyer fo. 1●…  and many other books are: which certainly is the reason of the heavy judgement of these cases, of killing of a Judge upon the Bench; that that is Treason: Or of drawing of a sword to strike a Justice sitting in judgement: or of striking of a Juror in the presence of Justice, that these incur the heavy judgement, of cutting off the right hand, perpetual imprisonment, and the loss of lands, and goods, as the books are, of 22. E. 3. and F. Judgement, 174. 
22. E. 3. ●… Fitz. Ju●… 174.  or of killing of a Messenger of the King, that goeth to execute his commandment, that this likewise is Treason, as the book is, in 22. Ass. 
22. Ass. P●…  I say, I conceive, that the reason of these cases is, for that he that offers violence to his Minister, when he is doing the service of his great Master the King: offers violence to the King himself, whose person he represents, and who by intendment of Law, is there present giving judgement: and he that strikes another in the presence of Justice, doth it as in the presence of the King himself: for that what the Judge, or Minister of the King doth, in pursuance of the lawful commands of the King, or in executing Justice, is the act or judgement of the King himself, according to that rule of Law, Qui per alium facit, per seipsum facere videtur: the act of a man's minister or servant, is the act of the Master himself. And this Bracton himself saith, 
Bract. fo. ●…  treating of jurisdiction, delegated by the King, to inferior Judges, and withal showing and directing of those Judge's Delegates, to execute righteous judgement, saith he, Tale judicium diligit honor Regis, cujus p●rsonam in judicio & judicando representant. Such a judgement the honour of the King delights in, whose person, in judgement, they represent. Why then, I say, is it thus, that the King by intendment of Law, is present in all his other Courts; and that what they do, or judge, is the act or judgement of the King himself? then certainly it must of necessity follow, (as indeed the Law is) that their judgement cannot be countermanded by the King: for this were to put Caesar against Caesar, the King against himself, which cannot be; for that when a Judge hath once given his judgement, he cannot afterwards countermand this judgement.  
Again, is the King (as I have said) by intendment of Law present in his inferior Courts; and is their judgement his judgement, so that by this his Majesty is estopped and concluded by his own inclusive judgement, to countermand theirs. Then, I say, a fortiori, the King, though he disunite himself from his Parliament, yet by intendment of Law, and virtually he is present in his high Court of Parliament: and therefore their judgement is his judgement: and what they declare to be Law, the King by an inclusive judgement declareth to be Law also. And if so, the conclusion must of necessity be, that the King can no more countermand their judgement, than he can the judgement of his Judges: for when Transit in rem judicatam, that is, when a thing is once adjudged, it can never after be repealed by the same judgement (as I have said) for that were a way to make judgement upon judgement, and so ad insinitum, & insinitum in iure reprobatur: the Law detests infinites. And as the King himself, cannot repeal this judgement pronounced by his Parliament: so neither can he do it, by any other advise or judgement, power, or jurisdiction whatsoever, no not by the advice, though of all the Judges of England, for that there is no power or judgement whatsoever, but is inferior to the judgement of the high Court of Parliament; which is plain, by that, that no appeal lieth from them: and then the rule of Law binds up and supersedeth all inferior judgements: In presentia maioris, cessat potestas minoris. In the presence of the great, the power of the less ceaseth. And therefore according to this rule, it is resolved in 21. Ass. 
Ass. Pl. 1.  that because that the King's Bench is Eier, and more than Eier: if a Commission of Eier sit in a County, and the King's Bench cometh thither; the Eier ceaseth. And this is the reason, that when it was enacted by the Statute of 28 E. 1. 
〈…〉 1. ca 5.  that the King's Bench should follow the King, that the power of the Steward of the King's Household, to determine Pleas of the Crown, did cease: and that in Term time, when the King's Bench sits, in the same County, all Commissions cease, as it is resolved in the 10. Rep. and in the 9 Rep. 
●… Rep. fo. 73. ●… Rep. fo. b.  And this is the reason likewise, that when the Pope exercised jurisdiction here in England, whatsoever the Ordinary of any Diocese might do, that the Pope, who challenged to himself supreme jurisdiction, over all Ordinaries, used to do within this Realm, as supreme Ordinary: and so he used to make Visitations, corrections, dispensations, and tolerations, within every Diocese of this Realm, as the Ordinaries used: so he used to make Appropriations, without the Bishop: and this was held good, and was never contradicted by the Bishop, who was accounted but the inferior Ordinary. Upon this ground, as it is said by Manwood Justice in Pl. Com. 
●… Com. fo. ●… a.  In presentia maioris, cessat potestas minoris.  
So I say, in the case in question, for that the high Court of Parliament, are the most supreme jurisdiction in England; what they declare to be Law, cannot be countermanded, by the judgement of any power or Counsel whatsoever: because that in the presence of the most supreme jurisdiction, the inferior ceaseth. I do not hereby intent, that the power of the Judges, in their several Courts, for the dispensation and execution of justice, should cease in the Term, for that the Parliament is sitting at the same time, And the reason is obvious, for that these Courts have their proper and distinct jurisdictions, from the Parliament; and therefore cannot be superseded by it. I intent by this only that what the Parliament hath declared to be Law, cannot, as I have said before, be countermanded by any other inferior judgement whatsoever: for that where the powers exercise the same jurisdiction, they cannot both stand together, but the greater will cashier and suspend the less: so I say in our case.  
But here it may be objected, that the King is fons Justitiae, that is, the fountain of Justice; and that he only, as Bracton saith, 
Bract. fo. 55. b.  Ordinariam habet iurisdictionem, & dignitatem & potestatem super omnes qui in regno suo sunt, habet enim omnia iura in manu sua, etc. And a little after he saith, Ea quae iurisdictionis sunt, etc. & ea quae sunt justity, etc. annexa, ad nullum pertinent, nisi ad Coronam & dignitatem Regiam: that is, those things which appertain to jurisdiction, and justice, belong to no body, but the Crown, and royal dignity. And as all justice and jurisdiction is primarily and originally in the King, so they cannot be exercised by any other, except that they be first delegated to them by the King; And so saith Bracton a little after, Jurisdictiones, etc. non possunt à privata persona possideri, nec usus, nec executio iuris, nisi hoc datum fuorit ei desuper: that is, no jurisdiction, nor execution of the Law, can be exercised by any private person, except that this power be first given unto him from the King. So Bracton treating of jurisdiction, saith; 
Bract. fo. 107. ●  Videndum, etc. quis primo & principaliter possit & debet iudicare: that is, let us see, who first, and principally, may, and aught to judge. And then he answereth, Sciendum, quod ipse Rex, & non alius, si solus ad hoc sufficere possit; eum ad hoc virtute sacramenti teneatur astrictus: that is, we must know, that the King only, and no other, if he alone may suffice: For that he is bound to do it, by virtue of his Oath. And after in the next Chapter speaking of jurisdiction delegated, he saith, 
Bract foe. 108. a  Si ipse Dominus Rex ad singulas causas terminandas, non sufficiat, ut levior sit illi labour, etc. he may, saith he, Constituere Justiciarios, etc. quibus referantur tam quaestiones super dubiis, quam quaerimoniae super iniuriis, etc. that is, if the King alone cannot suffice to determine all causes, that his labour may be the more easy, he may constitute Justices, to whom, as well doubts in Law may be referred, as complaints, upon injuries. And in pursuance of this, the King, not possibly suffi●ing to exercise all jurisdiction himself, hath in all ages, delegated power and jurisdiction to a certain number of men; and hath constituted them Judges, and dispensers of the Law under his Majesty, and in his right an 〈◊〉 to his people.  
Now all this being admitted, as in truth it cannot be denied, the force of the objection stands thus: is it so that no jurisdiction can be exercised by any, except that it be first delegated to them by the King, and that the King hath constituted certain persons, to be his Judges of the Law? why than it lieth not in the power of the two Houses of Parliament, to declare what is Law, and what not. First, because that they are not the proper Judges of it. And secondly, because that they have no such power given unto them by the King: for what power they have it is derived by their Writ, by which the King calleth them to Parliament: and this only requireth their presence, Super dictis negotiis tractaturis: and tractare is only to treat of or debate the Law, not to declare, or give judgement what the Law is; Besides, this word tractare is contained only in the Writ by which the Lords are summoned to Parliament, and not in the Writ of the Commons, for by that they are called only (as I remember the Writ is) ad faciendum & consentiendum, to do, and agree; why then they have no such power to intermeddle with the debating of the Law, much less to declare what the Law is.  
To which I answer: That the two Houses of Parliament conjoined (for I speak not of the power of the House of Commons distinct, and by itself) may not only declare what the Law is, but are the best and most proper Judges of it. Are not they the ne plus ultra; that the Subject hath for redress in matter of Law? are not they (as common experience teacheth us) the supreme Seat of Judicature? and do not they exercise a superintendent jurisdiction over all other Courts? and have not they power by a Writ of Error, brought before them, to reverse Judgements erroneously given in other Courts? Without doubt they have; witness that case of the Ship-money: which Judgement could not possibly have been reversed, but by the Parliament; who upon debate, declared that Judgement to be against the Law; and how miserable this Commonwealth had been: if they had not had this power, the lamentable success, of divesting of the Subjects property, without his consent, by that damnable judgement, contrary to all Law, would have in short time, been manifested to the whole world. But to this it may be said, that in these cases, the Judges advise, who sit as assistants in Parliament, is demanded: and that in such case, the King, by his Judges, doth declare what the Law is. To this I answer, that because the Parliament may demand the advice of the Judges, who sit there to that intent, will it therefore follow that they are tied to it? or having demanded their advice: must the consequence be, that they are bound to follow it? without question nothing less: for this were to tie my judgement to another man's principles, which ought not to be. And it were absurd for to think, that the Parliament, who are the supreme seat of Judicature, should be tied to subscribe to the judgement of any inferior power whatsoever. And now I shall put you one case: posito, that all the Judges of England, assembled together in the Chequer Chamber to give judgement in a point of Law, should all concur in their judgements, and should give judgement accordingly; and after in a Writ of Error brought in Parliament, this judgement should be reversed: do not the Parliament only, in this case, declare what the Law is? Without question they do; for, I suppose, that there is none so stupid, as to think, that the Judge's advice or judgement ought or can be received in this case; for this were, upon the matter, to appeal à Caesare, ad Caesarem, and to reverse that Judgement (though not by the same power) yet by the same advice that gave it: which, as I conceive, by the Law ought not to be.  
But here peradventure it will be again objected, that no Writ of error can be brought in Parliament, but that the King first signs to it: 
1. H. 7. 19: ●…  and this is a consent by the King, & a giving of them power to proceed and declare what the Law is: but in our case there is no such thing, for here is nothing judicially before them, by which to authorize them to give any such judgement, and therefore they have no such power to declare what the Law is, in this case; and if they do, their proceeding is extrajudicial and arbitrary.  
To this I answer, that true it is, that they cannot, nor ought not to take notice of any thing which concerneth any private persons, or their interest; neither can they, in any such case, give Judgement, or declare what the Law is, except they have something judicially pending before them, upon which to ground their judgement; but otherwise it is where it concerneth the Commonwealth, for there, I conceive, under favour, (especially, as in this case, in time of imminent danger) they are not tied to any legal way of proceeding, but they may, and are bound, as well by their Oaths of Allegiance, Supremacy, and their late Protestation, as by their Writ, by which they are called to Parliament, to take notice of all things, which may be obnoxious and prejudical to the Commonwealth: and to debate, determine, and declare the Law concerning them, though that they have nothing judicially before them; for if they should, in this case, expect a complainant, the Commonwealth might perish, before that they could yield any aid or assistance, for the securing of it. Now by their Oaths, they are bound to defend the King and Kingdom (as I have before said) and by their Writ they have power and authority given them, De imminentibus periculis tractare: and tractare, doth not only signify to handle, treat of, or debate; but likewise it signifieth, as the learned observe, to order, to govern, to write of, or to describe; and, without question, these words have weight, sense, and power enough in them, not only to enable them to debate what the Law is, but also to declare what it is, after that it is debated: so that I conceive, by this it is clear, that the Parliament do not exercise, practice, or endeavour any arbitrary way of proceeding. And the difference (as I concelve) upon the whole matter, will be this; that the two Houses of Parliament cannot (as I have showed before) make a new Law, or alter the old Law, without the consent of the King, and this by Act of Parliament; but they may declare what the Common Law is, and this shall be obliging to his Majesty; for otherwise, this great Court, which so fare transcends all others, in other things, should be less in power, in this particular, than any other; Which ought not to be conceived, or imagined.  
Now this being Law, which I have delivered, as I conceive it is; from hence these Conclusions may necessarily, and by consequence, be deduced; First, that the declaration of the Law, to be otherwise by the Proclamation, or other Declaration of the King, doth not change the Law; for that it is a Rule in the Law, that the King can neither create a Law, nor alter the Law, by his Patent or Proclamation: And with this agreeth 49. Ass. 37. H. 8. Br. Patents 100 11. H. 4. 10. H. 7. 5. Rep. 
49. Ass. Pl. 8. 37. H. 8. Br. Pat. 100 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo. 55.  and many other Books. Secondly, Hence a good argument may be deduced, to prove the Commission of Array, at this time illegal; for that the King, with the advice of his great Counsel the Parliament, hath by a  and inclusive consent (as I have made it good before) established the Militia; why then clearly it lieth not in his Majesty's power, without their consent, to countermand this by any other Commission; for the Rule of Law is, that Eodem modo, quo, quid constetuitur, dissolvitur, that is, every thing ought to be dissolved by a matter of as high nature, as it was created: and that is the reason, that an Act of Parliament, cannot be repealed but by an Act of Parliament; for that no power or jurisdiction whatsoever, is so great as itself: and it is without question, that the King's power or authority, by itself, is not of so high and excellent a nature, as it is joined with his Parliament: Wherefore I do conceive, for this reason, that the Commission of Array is absolutely unlawful, and therefore ought not to be submitted unto. Thirdly, and lastly, Hence may be concluded, that the King's declaration of the Law, to be contrary to what the Parliament have declared the Law to be, is Coram non Judice; that is, by one that hath not jurisdiction of the cause. First, Because (as I have said) that the King himself cannot declare the Law to be contrary to their judgement, for that his Majesty's judgement is superseded, and bound up in theirs: and secondly, For that he cannot contradict their judgement, by any other advice or judgement, for that, that advice or judgement is inferior to the Court of Parliament; and therefore in their presence, as to this purpose, aught to cease. And I shall compare this case, to one case only, which is in the 10. Rep. in the case of the Marshallsea, 
10. Rep. fo. 7●… the case of Marshallsea  where the case is thus; The Sheriff who is prescribed by the Law to hold his Turn within the Month after Mich. etc. held his Turn after the Month, and took an indictment of Robbery at the same Turn, and the Indictment being removed by a Cerciorari into the King's Bench, by the advice of all the Justices, the party so indicted, was discharged, for that the Indictment was utterly void, and Coram non Judice, because at this time the Sheriff had no authority to hold his Court: so I say, in this case, the Declaration or Proclamation of the King, is Coram non Judice, for that though the King properly, and only, aught to declare the Law, by the advice of his Judges, at another time, yet at this time he cannot, for that their judgement is estopped and superseded, by the superintendency of the high Court of Parliament: Then the Law being thus, this justifieth the proceed of Parliament, in punishing of such, who dare adventure, against Law, to execute the Commission of Array, or to proclaim, or declare any thing in his Majesty's name, against his own judgement, and the judgement of his Parliament; for the Rule of Law is; Extra territorium jus dicenti, non paretur, impunè; he that obeys the command of any power, out of its jurisdiction, shall be punished for it: So I conclude this point also, and conceive, that for this reason likewise, the Parliament hath done no more than what is warranted by the Laws of the Land.  
Fourthly, and lastly, I hold that the Parliament have done no more than what is warrantable by Law, upon this ground (which ought to be the Basis and end of all Law) viz. the common good and safety: but of this only a word, for that I have touched it before. That Law which is above all Law, & to which all Law ought to subscribe, is Salus Populi, the safety of the people. True it is, that the Law was made to defend every man's private interest, as well as the Republic, but primarily and principally the Republic: it is the Rule of Law (as I have showed before) Quod bonum publicum, privato anteferri debet; that the public good aught to be preferred before the private. And again, we have another Rule, Quod magis dignum, trahit ad se quod est minus dignum, that the more worthy doth draw to it the less worthy: and without controversy, the magis dignum, the more worthy, is the Commonwealth; why then the minus dignum, the less worthy, which is every man's private concernment, must subscribe to that.  
And the reason, wherefore the good and safotio of the Republi●que, ought principally and in the first place to be maintained, and therefore is styled Suprema Lex, that is, the most supreme Law, or, if you will, a Law above all Laws, is, for that as in the natural body, if the body be in health, the members must needs be well also, and if the body be sick, the members must needs sympathize with it● so it is in the body politic, if the body be well, the members far all the better for it, if the body be in distemper, the members cannot but be distempered also; so the happiness, or misery, of every individual person, hangs upon the good or ill success of the Commonwealth and therefore the good of the Commonwealth ought to have the first and chie●e endeavour, of every true and faithful member of it.  
In 18. E. 2. which you shall sinned cited in the 10. Rep. Keighleyes C. 
●8. E. 2. 27. ●0. Rep. 139. b. Keighleyes C.  a man brought an Action upon the case, against another, and the ground of the Action was, for suffering of a Wall of the Sea, that the Defendant was bound by prescription to repair, when need should be, ●●repaired, so that for default of reparation, the water entered, and surrounded the lands of the Plaintiff; The Defendant traversed the prescription, upon which they were at issue, and it was found for the Plaintiff; and that there was a default in the wall, for not repairing, for which the Plaintiff recovered his Damages, and a Writ was awarded to the Sheriff, to distrain the Defendant to repair the wall, where need was, ●and d●sault: Upon which my Lord Cook maketh a special observation; Not a Reader, saith he, this judgement, and the reason of it, is, pro bono publico, for the common good. For, saith he, Salus▪ populi, est suprema Lex: the safety of the people is the most supreme Law: and therefore it is part of the judgement, in this Action, that the Defendant should be restrained to repair the wall. As if he had said, this Action is brought by the Plaintiff, for his special damnification only, and this he hath restored to him by the judgement: (But yet note, for that it concerneth the weal-public, the Judges considering themselves to be tied both in Law and conscience, to provide for the securing of the same, made this part of their judgement likewise, that the Desendant be compelled to repair the same; lest in defect of this the Commonwealth should suffer also. Here you may see, the car● that the Judges than had of the common good: It were well that this were pondered on in those days, in which I doubt, men are too ready and prone to prefer their own private concernment in their endeavours, I mean their honour, before the public safety.  
In Davis Reports 
Da. Rep. fo. 32. b.  it is 〈…〉 to the interest of one particular person, & yet reasonable, where it is for the benefit of the Commonwealth in general; as a custom to make Balwarks upon the land of another for the defence of the Realm, 36. H. 8. Dyer, and to raze houses in publico incendi●, in a common fire, 29. H. 8. Dyer, (these cases I have remembered before) so to turn the plough up●n the head-land of another, in favour of husbandry, 21. E. 4. and to dry Nets upon the land of another, in favour of fishing, and navigation, 8. E. 4 
36. H. 8. Dyer fo. 60● 29. H. 8. Dyer foe 36● 21. E. 4. 28 8. E. 4. 18.  But saith the book, a custom which is contrary to the public good, which is the scope and general end of all Laws (for salus populi, suprema lex) or injurious and prejudicial to the multitude, and beneficial only to some particular person, such a custom is repugnant to the Law of reason, which is above all positive Laws, etc. Here note, that it is said, that the Law of reason is above all positive Laws: and no doubt but it is, for that Law, which is against reason, is rather a mystery of iniquity, than Law: and in truth, it is no Law, which is not grounded upon the Law of reason. For as some will have it, the word (Lex) is derived, à ligando, quoniam ad observandas leges, homines ligat: and no question a Law, which is unreasonable, doth not oblige men to obedience: so that it is no Law, if it be not warranted by the Law of reason. Now to apply this to the case in question; the King, by his Prerogative, aught to have the sole disposing of the Militia: the kingdom being in imminent danger, the King refuseth to settle it, by the advice of his great Counsel, for the securing of himself and his people; Now the doubt is, whether the Parliament may without the consent of the King, assume this power to themselves, for the securing of his Majesty, and his kingdom? or whether they ought to subscribe to the Prerogative of the King, though it be to the apparent destruction of the Common-weal; which of these two is the reasonable Law, is the question? Why no doubt, Salus populi, the safety of the people: for these reasons. First, for that the Law was made for the people, and not the people for the Law. And secondly, for that the whole aught to be preferred before any part: wherefore I conclude that it is Suprema Lex; the most supreme Law, and therefore the Prerogative of the King ought to give way to this; and not this, to the Prerogative of the King: for if you preserve and maintain the common good, you preserve and maintain the King's Majesty, his Prerogative, your Laws, and yourselves; and if you do otherwise, you destroy all. And therefore I conclude all with this, Non solum conveniens est, sed necesse est, ut salus populi, sit suprema Lex: That it is not only convenient, but necessary, that the safety of the people, should be the most supreme Law: And therefore the Parliament have done that which is agreeable both to Law and reason, in preferring of the public safety.  
FINIS.