54. Declaration of the Houses in Defence of the Militia Ordinance.
[June 6, 1642. Journals of the House of Lords, t. 112. See Hist. of Engl. x. 200.]
A Declaration of the Lords and Commons in Parliament concerning His Majesty's Proclamation,[1] the 27th of May, 1642.
The Lords and Commons, having perused His Majesty's Proclamation forbidding all His Majesty's subjects belonging to the trained bands or militia of this kingdom, to rise, march, muster or exercise, by virtue of any Order or Ordinance of one or both Houses of Parliament, without consent or warrant from His Majesty, upon pain of punishment according to the laws:
Do thereupon declare, that neither the statute of the seventh of Edward the First, therein vouched, nor any other law of this kingdom, doth restrain or make void the Ordinance agreed upon by both Houses of Parliament, for the ordering and disposing the militia of the kingdom in this time of extreme and imminent danger, nor expose His Majesty's subjects to any punishment for obeying the same, notwithstanding that His Majesty hath refused to give his consent to that Ordinance, but ought to be obeyed by the fundamental laws of this kingdom.
The declaration of 7 Edward I, quoted in His Majesty's Proclamation, runneth thus:
The King to the Justices of his Bench sendeth greeting: Whereas of late, before certain persons deputed to treat upon sundry debates had between us and certain great men of our realm, amongst other things it was accorded, that in our next Parliament, after provision shall be made by us, and the common assent of Prelates, Earls and Barons, that in all Parliaments, treaties and other assemblies, which should be made in the realm of England for ever, that every man shall come, without all force and armour, well and peaceably, to the honour of us and our realm; and now, in our next Parliament at Westminster, after the said treaties, the Prelates, Earls, Barons and the Commonalty of our realm, there assembled to take advice of this business, have said, that to us belongeth, and our part is, through our royal seigniory, straightly to defend force of armour, and all other force against our peace at all times when it shall please us, and to punish them which shall do contrary according to our laws and usages of our realm.
And hereunto they are bound to aid us, as their sovereign lord, at all seasons when need shall be; we command you, that you cause these things to be read before you in the said Bench and there to be enrolled.
Given at Westminster the 30th day of October.
The occasion of this Declaration was for the restraint of armed men from coming to the Parliament to disturb the peace of it, and is very improperly alleged for the maintenance of such levies as are now raised against the Parliament, the title of the statute being thus, ' To all Parliaments and treaties every man shall come without force and arms '; so the question is not whether it belong to the King or no to restrain such force, but, if the King shall refuse to discharge that duty and trust, whether there is not a power in the two Houses to provide for the safety of the Parliament and peace of the kingdom, which is the end for which the Ordinance concerning the militia was made, and, being agreeable to the scope and purposes of the law, cannot in reason be adjudged to be contrary to it; for, although the law do affirm it to be in the King, yet it doth not exclude those in whom the law hath placed a power for that purpose, as in the courts of justice, the sheriffs and other officers and ministers of those courts; and as their power is derived from the King by his patent, yet cannot it be restrained by His Majesty's command, by his Great Seal or otherwise; much less can the power of Parliament be concluded by His Majesty's command, because the authority thereof is of a higher and more eminent nature than any of these courts.
It is acknowledged that the King is the fountain of justice and protection, but the acts of justice and protection are not exercised in his own person, nor depend upon his pleasure, but by his courts and by his ministers, who must do their duty therein, though the King in his own person should forbid them; and therefore, if judgments should be given by them against the King's will and personal command, yet are they the King's judgments.
The High Court of Parliament is not only a court of judicature, enabled by the laws to adjudge and determine the rights and liberties of the kingdom, against such patents and grants of His Majesty as are prejudicial thereunto, although strengthened both by his personal command and by his Proclamation under the Great Seal; but it is likewise a council, to provide for the necessities, prevent the imminent dangers, and preserve the public peace and safety of the kingdom, and to declare the King's pleasure in those things as are requisite thereunto; and what they do herein hath the stamp of the royal authority, although His Majesty, seduced by evil counsel, do in his own person oppose or interrupt the same; for the King's supreme and royal pleasure is exercised and declared in this High Court of law and council, after a more eminent and obligatory manner than it can be by personal act or resolution of his own.
Seeing therefore the Lords and Commons, which are His Majesty's great and high council, have ordained, that for the present and necessary defence of the realm, the trained bands and militia of this kingdom should be ordered according to that Ordinance, and that the town of Hull should be committed to the custody of Sir John Hotham, to be preserved from the attempts of Papists and other malignant persons, who thereby might put the kingdom into a combustion, which is so far from being a force against the King's peace that it is necessary for the keeping and securing thereof, and for that end alone is intended; and all His Majesty's loving subjects, as well by that law as by other laws, are bound to be obedient thereunto; and what they do therein is (according to that law) to be interpreted to be done in aid of the King, in discharge of that trust which he is tied to perform; and it is so far from being liable to punishment, that, if they should refuse to do it, or be persuaded by any commission or command of His Majesty to do the contrary, they might justly be punished for the same, according to the laws and usages of the realm; for the King, by his sovereignty, is not enabled to destroy his people, but to protect and defend them; and the High Court of Parliament, and all other His Majesty's officers and ministers, ought to be subservient to that power and authority which the law hath placed in His Majesty to that purpose, though he himself, in his own person, should neglect the same.
Wherefore the Lords and Commons do declare the said Proclamation to be void in law, and of none effect; for that, by the constitution and policy of this kingdom, the King by his Proclamation cannot declare the law contrary to the judgment and resolution of any of the inferior courts of justice, much less against the High Court of Parliament; for if it were admitted that the King, by his Proclamation, may declare a law, thereby his Proclamations will in effect become laws, which would turn to the subverting of the law of the land, and the rights and liberties of the subjects.
And the Lords and Commons do require and command all constables, petty constables, and all other His Majesty's officers and subjects whatsoever, to muster, levy, raise, march and exercise, or to summon or warn any, upon warrants from the Lieutenants, Deputy Lieutenants, Captains, or other officers of the trained bands, and all others, according to the said Ordinance of both Houses, and shall not presume to muster, levy, raise, march or exercise, by virtue of any commission or other authority whatsoever, as they will answer the contrary at their perils; and in their so doing, they do further declare that they shall be protected by the power and authority of both Houses of Parliament; and that whatsoever shall oppose, question or hinder them in the execution of the said Ordinance, shall he proceeded against as violators of the laws and disturbers of the peace of the kingdom.
[1] No. 52.
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