MILITIA Old and New.  
One thousand six hundred forty two.  
red ALL OR NONE; AND THEN CENSURE.  
 printer's or publisher's device  
LONDON, Printed 18 August. 2642.   

Old and new Observations.  
WHen Kings were first ordained in this Realm, the kingdom was divided into 40. portions, and every one of those portions or Counties was committed to some earl, to govern and defend it against the enemies of the realm. mirror of Iustice, p. 8.  
Those Earls after they received their government in each County, divided them into Centurians or hundreds; and in every hundred was appointed a Centurian or Constable, who had his portion and limits assigned him to keep and defend with the power of the hundred, and were to be ready upon all alarms with their arms against the common enemy. These in some places are called Wapentakes, which in French doth signify taking of Armen. mirror p. 10. 12 H. 8. fol. 16, 17.  
King Alfred first ordained two Parliaments to be kept every year for the government of the people, where they were to receive laws and justice. mirror. p. 10, 11.  
The peers in Parliament were to judge of all wrongs done by the King to any his subjects. mirror, p. 9.  

The ancient manner of choosing and appointing of officers was by those over whom their jurisdiction extended.  

Instances.  
1. tithingman. This man was, and at this day is chosen by the men of his own tithing, and by them presented to the Leete to be sworn for the true execution of his office.  
2. Constable. This officer is chosen by the inhabitants who are to be governed by him, and those of the place where his jurisdiction lieth; and presented unto the Leet to be sworn.  
3. Coroner. This Office hath jurisdiction within the whole County, and therefore was chosen by the Freeholders of the County, in the County-court. cook Magna Carta, p. 174, 175, 559.  
4. Such as had charge to punish such as were violaters of Magna Carta, these were chosen in the County-Court as appeareth by Stat. 28. Ed 1. c. 1.17.  
5. sheriff. Were in time past, and by the common Law, to be chosen likewise in the County-court, Lamb. Saxon laws, fol. 136. Stat. 28 Ed. 1. c. 8, 13. Cookes Magna Carta, 175, 559. mirror p. 8.  
6. Lieutenants of Counties( anciently known by the name of Heretoch) were chosen in the County-court,( which cook upon Magna carta p. 69. calls the Folkmote) Lamb. Saxon laws, fol. 136. mirror pag. 8. 11, 12.  
7. Majors and bailiffs in burrows and Towns corporate, are chosen by the commonalty of the same Corporation within their jurisdiction.  
8. Conservators of the peace, were anciently chosen by the Freeholders in the County-court, cook, agna C arta, 558, &c.  
9. Knights for the Parliament are to be chosen in the County-court Stat. 7 H. 4. cap. 15. 1 H. 5.1.8 H. 6. cap. 7.10 H. 6. cap. 2.  
10. Verderers of the forest are chosen within their jurisdiction by the inhabitants. cook magna Carta 559.  
11. admiral, being the Sheriffs of the Counties, as Selden in his mere clausum, p. 169, 188. affirms, must be chosen as the Sheriffes were, viz. in the County-court. But the Parliament of R. 2. fol. 29. saith they were chosen in the Parliament the representative body of the realm, because he had the defence of the Realm by Sea committed unto him.  
12. The captain of Callis, viz. Rich. earl of Warwick in time of H. 6. refused to give up his Captain-ship of Callis unto the King, because he received it in Parliament. Cowels Interpreter in the word Parliament.  
13. The Lord Chancellor to whom is committed the great seal of England, being the public faith of the kingdom, was in former times chosen in Parliament, Lamb. Archeion. p. 48. Dan. chronicle, p. 139, 148, 195.  
14. Lord-Treasurer, an Officer to whom is of trust committed the Treasure of the kingdom, was in like manner chosen in Parliament.  
15. The Chief-Justice an Officer unto whom is committed the administration of the justice of the Realm was chosen in Parliament, Lamb. Archeior. p. 48. ut supra. 

Anno 15. Ed 3. the King was petitioned in Parliament, that the high Officers of the kingdom might( as in former times) be chosen in Parliament, to which the King yielded that they should be sworn in Parliament, Dan. chronicle p. 195. Quaere the Parliament role and petitions.  
And it appeareth by a printed Statute Anno 15 Ed. 3. cat. 3, that the great Officers o● the kingdom were sworn to maintain Magna Carta.    
16. The great council of the King and Kingdom namely the Parliament, is chosen by the commons, for they choose the Knights and Citizens, and Burgesses, or B●rons, for so the Citizens were anciently called, and the Cinqueports retain that name to this day.   
And this was, as I conceive, the ancientest Constitution of the kingdom for choosing of their Officers.   

In the next place it will be requisite to enqui e which of these Offi●ers are now altered, and by what authority; and fi●st of Sheriffes.  
The choice of Sheriffes was first taken from the Freeholders by Stat. 9 Ed. 2. and the choice of them committed to the Lords Chancellor, Treasurer, the Barons of the Exchequer, and the Justices of either Bench, cook magna Carta, p. 559.  
This election is to be made the morrow after All-soules-day in the Exchequer, by stat. 14 Ed. 3. c. 7.  

1. Quaere. If they choose none at that day and place, but at some other time, whether the choice be good? or if he be chosen by any other. 

Ob. The King himself doth usually make and appoint Sheriffes of every County by his Prerogative.  
Sol. It hath been agreed by all the Judges that the King cannot appoint any other to be sheriff then such as are name and chosen according to the statute of Lincoln. cook magna Carta p. 559. 

If so, then it is questionable whether the making of M. Hastings sheriff of Leicestershire be warrantable by Law or not.      
2. Quaere. If no sheriff be legally chosen, whether the Freeholders of the County shall not choose one, as they were accustomend before the making of the stat. of 9 Ed. 2. for these reasons. 

1. If there be no sheriff legally chosen, there will be a fayler of justice which the Law will not permit.  
2. Because the statute is in the affi mative, and therefore doth not altogether take away their power of choosing, because affirmative statutes do not alter the common Law.      

Next let us consider the choice of Justices of the peace, who as they are commissioners of the peace are not Officers by the common Law, and therefore this case will differ in some respects from the former, it being an office created by sta●u●e.  
1. I conceive that no Cou●t may be erected without the authority of Parliament. For the Court of first fruits was erected by stat. 32. H. 8 cap. 45. the Court of Wards by stat. 32 H. 8. cap. 46. the Court of Justice in Wales by stat. 34 H. 8. cap. 26. And power to erect Courts given, 1 Mar. s●ss 2. cap. 10. And it was resolved in this Parliament at the try all of the earl of Strafford, that the Cou●t at york was against Law, albeit it hath had continuance these 100 yeeres, because it was not erected by Parliament.  
And Justices of peace being Judges of Record were first ordained by stat. as appeareth by 18 Ed. 3. cap. 2. And 34 Ed. 3. cap. 1. with such other addition of power as later statutes have given unto them.  
Justices of peace then having their being by virtue of the statute-Law, they are to be ordained in the same manner as the statutes prescribe and not otherwise.  
1. After their first institution the statutes did leave the choice of them indefinitely in the Crown( as I conceive) until the statute of 12 R. 2.27. Which statute doth entrust the Chancellor, Treasurer, Keeper of the privy seal, Steward and chamberlain of the Kings House, the clerk of the rolls, the Justices of both Benches, barons of the Exchequer and others, to name and make them.  
2. Other statutes do appoint what persons shall be chosen to be Justices of the peace; Namely, such as reside in the same County where they are Justices of peace, as stat. 12 R. 2. c. 10. And they must be of the most sufficient Knights, Esquires, and Gentlemen of the same County. Stat. 17. Richard 2.10. and dwelling in the same County, 2 Hen. 5. Stat. 2. c. 1.( Except Lords and Justices of Assizes) upon this last Statute it may be doubted if choice may be made of any Lords, and Justices of Assizes which have no residence or estate in the County where they are so made Justices of the peace: which if it doth, it doth repeal all former statutes which confines them to such persons as are of the same County, which I conceive is against their meaning, for that statute doth onely dispense with the residence of Lords and Justices of Assize, because men of the same County, inhabiting in the County where they are Justices of peace, in regard of their other employments in the Common-wealth, which necessary requireth their absence, and so it amounteth onely to a dispensation for their residency.  

Ob. The common practise is that the Lord Keeper doth appoint whom he please, and that by virtue of the Statute of 18. Henry 6. Cap. 1.  
Sol. True! such is the practise, but the doubt is how warantable his Act is, for the statute of 18. H. 6. doth give the Lord chancellor( alone by himself) no other power but in Case there be no men of sufficiency in the County, and where none of 20.l. per annum are to be found. For in such Case he hath power to appoint such as he conceives are men most fit. But in case there are men of sufficient estates in the County to be found, he must join with the others mentioned in the statute, viz. the Treasurer, privy seal, &c. who have a joint and undivided power with him. 

If this be so, then it may be doubted whether the Lord viscount Fauckland being no peer of the realm, Sir Peter Miche, Sir Edward Nichols of late put into the Commission of the peace, in many Counties of this kingdom, are by the Law capable of being Justices of the peace in those Counties where they do not reside? Et sic de similibus.     
Quere also, whether a Justice of the peace being once legally chosen according to the statute before mentioned, may be put out at the pleasure of the Lord Keeper alone, without any just cause alleged, for being a Justice of record, whether some matter of record must not appear to disable him? for being settled by Law, he is to be displaced by Law and not upon displeasure or surmise.  
3: A third office is the Lieutenants in every County, in former times known( for the name onely is out of use) by the name of Here●●ch, Lamb. Saxon laws. fol. 136. And here will fall into debate the Ordinance in Parliament, about the settling of the Militia of the kingdom.  
The choice of these as was formerly mentioned was by the freeholders in the County Court: But of later times they have exercised the same power, being appointed by the King, under the shadow of his prerogative.  
First it is to be demanded, whether the Kings prerogative can take away th●t ancient right which the Subjects had by Law invested in them? if so! then the King by his prerogative may do wrong, which is contrary to a maxim in Law. Fortescue de legibus, &c. fol. 25. If not, then whether the power of choosing a Lieutenant or Heretoch doth not yet remain in the Subject, so as they may now choose one as well, and by the same right they did in former times?  
If Freeholders of a Co●nty may yet choose, then I conceive the Parliament, being the representative body of the whole kingdom may appoint Lieutenants: because they include them, or at least they are not excluded from such a power. No more then where the statute giving power unto Justices of peace to inquire of a riot, doth exclude the power of the Kings Bench, which no man will affirm. And therefore the ordinance of the Militia is legal.   

That the Parliament hath power to make an Ordinance, may be proved A minori. For  
If the inhabitants of a town, without any custom to enable them may make an ordinance, or by-Law for the reparation of their Church, Highway, or Bridge in decay, or any the like thing being for their public good, and upon a pecuniary pain in case of neglect, and if it be made by the greater part, that it shall bind all within that town, as hath been agreed for Law. 44. Ed. 3. fol. 19. Cook. lib. 5. fol. 63 the chamberlain of Londons case, clerks case and Jeffryes case. ibid. fol. 64, 65.  
If a Township be amerced and the Neighbours by assent shall assess a certain sum upon every inhabitant, and agree that if it be not paid by such a day, that certain persons thereto assigned shall distrain: and in this case the distress is lawful. Doctor and student, fol. 74.6. cap. 9.  
If a by-Law that every one that holdeth Land shall pay 1.d. towards the reparation of a Church, and for non payment shall forfeit to the Church-wardens 20. s. be good and doth bind, as the book saith 21. H. 7. fol. 20 Holdeth.  
If a town make by-Lawes, and they shall bind every one of the town if it be for the common good, as 11. H. 7. fol. 14. then by the same reason may the Parliament make ordinances, and by-Lawes for the common good of the kingdom, as shall bind all. For if a town may make Ordinances much more may the Knights and Burgesses of the Parliament, because they have their power ad faciendum& consentiendum. As appeareth of record under their hands, and seals in chancery, in the return of their several elections for Knights and Burgesses.  
Lastly, as every private man is by Law bound to preserve the pe●ce, as in case an affraye be made by two, and a third man standing by shall not use his best endeavour to part them, and preserve the peace, he may be indicted and fined for it: why may not the Parliament being entrusted with the preservation of the peace of the Realm, make an Ordinance for the preservation of the peace in case of apparent danger?  
Ordinance made in Parliament 8. Ed. 2. for the preservation of the alienation of the Kings Land, and Fines set upon such as presume to break them. rot. Parl. 28. H. 6. art. 29.  
The Judges and Courts at Westminster, may make an Ordinance for Fees to be paid unto the clerk of their Courts, and for bar fees taken by Sheriff and jailers. 21. H. 7. fol. 17.  
An Ordinance made in Parliament 21. Ed. 3. fol. 60 for exemption of the Abbot of Bury from the jurisdiction of the Bishop of Norwich, Seldens Titles of Honor. pag. 702. 12. H. 7. fol. 25.  
Heyborne and Keyl●nds case. M. 14. Ed. 4. rot. 60. in Bauco Reg. Crooke pag. 25. who had his money taken away from him by virtue of an Ordinance, and was adjudged that the Ordinance did bind him.   

Whether an Infant may be a colonel, admiral, &c.  

1. NOne by the intention of the Law can do knights service, before he be xxi yeeres of age. And this is the reason of wardship.  
2, It is an office of trust which may not be executed by a deputy.  
3. Such an office requires personal attendance, for otherwise the County may be overthrown unawares, In the absence of such a governor from his charge.     
FINIS.