The Sovereign Power of Parliaments and Kingdoms, Part 1 (2 of 2)

The Sovereign Power of Parliaments and Kingdoms · Part 1 (2 of 2)

p. 26Secondly, the Lawfulnesse and justnesse of the B…rons Warres in Defence of Magna Chart…, with other their Hereditary Rights and Liberties, appeares most evidently, by the resolution of all those Parliaments summoned by King Herry the 3^d. Edward the 1^•. 2. 3. Richard the 2^d and other our succeeding Kings; which have many times, even byooSee part. 1. p. 19. 20. force of Armes, or Menaces; and sometimes by faire termes, caused these Kings by new Acts of Parliament of ratifie Magna Charta, the Chart…r of the Forest, with other Fundamentall Liberties, thus forcibly extorted from King I…hn at first; and constrained them to confirme hem with their Oathes and sol…mne publicke ppConfirm C…rtarum. 25. E. 1. …. 4.Excommunications, to be published by the Bishops in their Diocesse twice every yeare; oft solemnly vowing, and protesting, both in and out of Parliament, to defend p. 27these Lawes and Liberties, with their estates, armes, lives, blood; which their anc…st…rs had purchased with their blood; as I have manifested in the two first parts of this Discourse: All which they would no doubt have forborne, had they deemed it high Treason or Rebellion in point of Law, to take up armes against their Kings in defence o… these Lawes and Privileges; neither would our Kings and Parliaments in times of Peace, have so frequently confirmed these Lawes and Immunities, as just and necessary for the peoples welfare, had they reputed their former purchases and confirmations by warre and armes, no lesse then Treason or Rebellion. And if it were neither Treason nor Rebellion in the judgements of our Ancestors and those Parliaments which procured, and ratified Magna Charta, to take up armes in defence thereof; much lesse can it be Treason or Rebellion in the Parliament and Subjects now (by Votes, by Ordinances of both Houses) with force of armes to preserv…, not only these their hereditarie Charters, Lawes, Priviledges, but their very Lives, Estates; yea, the Privileges and being of Parliaments themselves, which are now invaded, endangered.

What opinion the world had of the lawfulnesse of most of the Barons Warres in King Henry the 3^d. his Raigne, against this troublesome perfidious King, in defence of their Lawes, Liberties, Estates, appeares first, by the Dialogue betweene Agnellus, a Frier minorite, one of King Henry his Counsell, (purposely sent to the Earle Marshall, then in armes against the King) and this Martiall Earle, in the Abbey of Morgan. Anno 1233. I will first relate the true state of that Warre, and then their Dialogue concerning it:qqMa…h. Par… Hist. p. 371 to 385. Daniel, p. 153. 154. See Holinsh▪ Graft. Speed Matth. West. Anno 1233. King Henry by the ill counsell of Peter Bishop of Winchester, removed all his English Officers, Counsellors, and Servants from his Court, and put Poictovines, and Forraigners in their places, being ruled wholly by them; withall he puts the English Garisons out of all his Castles, and substitutes Forraigners in them, which dayly arived both with Horse and armes in great multitudes, and much opprested the people, calling them Traitors; so that the power and wealth of the Realme was wholly under their Command. The Earle Marshall seeing the Noble and Ignoble thus oppressed, and the rights of the Kingdome like utterly to be lost; provoked with a zeale of Iustice, associating to himselfe other Noble men, goes boldly to the King, reproves him in the hearing of many, For calling in those Poictovines, by evill Counsell, to the oppression of the Kingdome, and of his naturall Subjects, and like wise of Lawes and Liber…ies; Humbly beseeching him hastily to correct these excesses, which threatned the imminent subversion both of His Crowne and Kingdome, which if he refused to doe, he and the other Nobles of the Realme, would withdraw themselves from his Counsell, as long as he harboured those Strange…s. To which Peter of Winchester replyed: That the King might lawfully call in what strangers he would, for the Defence of his Kingdome and Crowne, and likewise so many, and such, as might compell his proud and rebellious Subjects to due Obedience. Whereupon the Earle Marshall and other Nobles, departing discontented from the Court, when they could get no other answer, promised firmely one to another; That for this cause which concerned them all, they would manfully fight, ev…n to the separation of Soule and Body. After which, they seeing more Strangers arrive with Horse and armes every day, sent word to the King; That hee should foorthwith remove Bishop Peter, and all his Strangers from his Court, which if he refused, they all would BY THE COMMON CONSENT OF THE WHOLE REALM … him, with his wicked Counsellours, out of the Realm, and consult of chusing them p. 28a new King. After these, and some other like passage, the King raysing an Army, besiegeth one of the Earles Castles; and not being able to winne it, and ashamed to raise his Seige without gaining it, he sent certaine Bishops to the Earle, and requested him; that since he had besieged his Castle, and hee could not with Honour depart without winning it, which he could not doe by force, that the Earle to save his Honour would cause it to be surrended to him, upon this condition, That hee would restore it certainely to him within 15. dayes, and that by advise of the Bishops h… would amend …all thing amisse in his Kingdome; for performance of which the Bishops became his Pledges, and the King appointed a meeting at Westminster, on a set day betweene Him and the Lords: whereupon the Earle surrendred the Castle to the King, upon Oath made by the Bishops that it should be restored at the day. But the King refusing to deliver the Earle the Castle, according to promise, and threatning to subdue his other Castles; the Earle hereupon raiseth his Forces, winnes his Castle againe, routs divers of the Kings Forraigne Forces, at Gorsemond, Monmouth, and other places; and invaded the lands of his Enemies. VponUpon this occasion, Frier Agnellus (or Lambe) acquaints the Earle, what the King, together with his Counsell and Court, thought of his proceedings; to wit, that the King said, he had proceeded over traiterously, and unjustly against him, yet he was willing to receive him into favour, if he would wholly submit himselfe to his mercy; and that others held it not just, safe, and profitable for him to doe it; because he had done wrong to the King, in that before the King had invaded his Lands or Person, he invaded and destroyed the Kings Lands, and flew his men; and if he should say, he did this in defence of his body and inheritance; they answered, no, because there was never any plot against either of them; and that were it true, yet he ought not thus to breake forth against the King his Lord, untill hee had certaine knowledge, that the King had such intensions against him: ET EX TVNC LICERET TALIA ATTEMPTARE; and from thenceforth he might lawfully attempt such things, (by the Courtiers and Friers owne Confessions:) VponUpon which the Marshiall said to Frier Lambe: To the first they say, that I ought to submit my selfe, because I have invaded the King: it is not true, because the King himselfe, (though I have beene ever ready to stand to the Law and judgement of my Peeres in his Court, and have oft times requested it by many messengers betweene us, which he alwaies denied to grant) violently entred my Land, and invaded it against all justice: whom hoping in humility to please, I freely entred into a forme of peace with him, which was very prejudiciall to me: wherein he granted, that if on his part all things were not punctually performed toward me, I should be in my pristine state before that peace concl…ded; namely, that I should be without this homage, and obsolved from my allegiance to him, as I was at first by the Bishop of Saint Davids; Seeing then hee hath violated all the Articles of the Peace, IT WAS LAWFVLL FOR ME, According to my agreement, to recover what was mine owne; and to debilitate his power by all meanes; especially seeing he end eavoured my destruction, dis-inheritance, and seizing of my Body, of which I have certaine intelligence, and am able to prove it if neede be. And which is more, after the 15. daies truce, before I entred Wales, or made any defence, he deprived me of the Office of Marshall, without judgement, which belongs to me, and I have enjoyed by Inheritance, neither would he by any meanes restore mee to it; though required. Whence I have p. 29plainely learned, that he will keepe no peace with me, seeing since the Peace hee handles me worse then before. Whereby I ceased to bee his Subject, and was absolved from his homage by him. Wherefore it was, and is lawfull for me to defend my selfe, and to withstand the malice of his Counsellors by all meanes. And whereas the Kings Counsellors say, it is profitable for me to submit to the Kings mercy because he is more rich and powerfull then I am. It is true, the King is richer and more potent then I, but yet he is not more powerfull then God, who is Iustice it selfe, in whom I trust, in the confirmation and prosecution of my right, and of the Kingdomes. And whereas they say, the King can bring in Strangers of his kinred, who are neither Scots, nor French, nor Welsh, who shall make all his foes his Foot-stoole, and come in such multitudes, as they shall cover the face of the earth, and that he can raise seven men to my one: I neither trust in Strangers, nor desire their confederacie, nor will I invoke their aide, Vnlesse, which God forbid, inopinata & immutabili fuero compulsus necessitate; I shall be compelled by a sudden and immutable necessity; and I beleeve by his Counsells ill advise he will quickly bring in such multitudes of Strangers, that he will not be able to free the Kingdome of them againe; for I have learned from credible men, that the Bishop of Winchester is bound to the Emperour, that the will make the Kingdome of England subject to him; which God in his providence avert. And whereas they say, That I may confide in the King and his Counsell, because the King is mercifull, credible, &c. It may well be that the King is mercifull; but he is seduced be the Counsell of those, by whom we feele our selves much hurt; and he is Noble and credible (whom God long preserve so) as much as in him lies; but as for his Counsell, I say, that no one promise made to me, was ever yet kept, and they have violated many corporall Oathes made to me, and the Oathes they tooke for observing Magna Charta, for which they remaine excommunicate and perjured. Yea, they are e…jured concerning the faithfull Counsell which they have sworne to give to our Lord the King, when as they have wilfully given him the Counsell of Achitophel, against justice; and corrupted the just Lawes they have sworne to keepe, and introduced unusuall ones: for which, and for many other things, for which neither God nor man ought to trust them, or their complices, are they not every one excommunicated?

Rumor de veteri faciet ventura timeri:

Cras poterunt fieri …urpia sicut heri.

Faelix quem faciunt aliena pericula cautum.

Whereas the said Counsellors of the King say, that I invaded the Kings body at Gorsmund Castle, before the King had entred my Land; and so I did injurie to the King, for which I ought to implore his merciemercy, least others should take example thence to raise up Armes against the King. I answer, that I was not there in person; and if any of my Family were there by chance, they invaded onelyonly the Family of the King, not the person of the King: which yet if they had done, it were no wonder, seeing the king came with his Army into my Land, that he might invade me, and oppresse me by all the meanes he could, which may appeare to all by the tenor of his Letters, by which hee made a generall assembly throughout England against my Army. And since the premises objected against mee are false, p. 30and it is true, that the King hath treated me worse since the time I expected his mercy, then any time before, and doth yet use the same Counsell as then; and since he endeavours precisely to follow their Counsels in all things, by whose advise I suffer all the premised grievances; I ought not to prostitute my selfe to his mercy. Neither would this be for the Kings honour, that I should consent unto his will, which is not grounded upon reason. Yea, I should doe an injury to him, and to Iustice, which he ought to use towards his Subjects, and to maintaine. And I should give an ill example to all, by deserting Iustice, and the prosecution of right, for an erronious will against all Iustice, and the injury of the Subjects: For by this it would appeare, that we loved our worldly possessions, more then Iustice it selfe. And whereas the Kings Counsellours object, that wee have combined with the Kings capitall enemies, namely, the French, Scots, Welsh, out of hatred and dammage to king and kingdome: That of the French is altogether false, and that of the Scots and Welsh too; excepting the king of Scots, and Leoline Prince of North…ales; who were not the kings enemies, but faithfull friends, untill by injuries offered them by the King and his Counsell, they were by coertion against their wills, alienated from their fidelitie, as I am. And for this cause I am confederated with them, that we may the better being united, then separated, regaine and defend our rights, of which we are unjustly deprived, and in a great part spoiled. Whereas the Kings Counsell propose, that I ought not to confide in my Confederates, because the King, without any great hurt to his Land, can easily separate them from my friendship: Of this I make no great doubt, but by this the iniquity of his Counsellors doth most of all appeare: that in some sort they would cause the King to sustaine losse, by those whom he specially calls, capitall enemies, to injure mee who have alwaies beene his faithfull Subject, whiles I remained with him, and yet would be so, if he would restore to me and my friends our right. Whereas the said Counsellors say, that the Pope and Church of Rome, doe specially love the King and kingdome, and will Excommunicate all his adversaries, which thing is even at the dores, because they have already sent for a Legate: It pleaseth mee well, said the Marshall; because the more they love the King and kingdome, by so much the more will they desire that the King should treat his Realme and Subjects, according to justice: And I am well pleased they should excommunicate the adversaries of the Kingdome, because they are those who give Counsell against Iustice, whom workes will manifest; because Iustice and Peace have kissed each other; and because of this, where Iustice is corrupted, Peace is likewise violated. Also I am pleased that a Legate is comming, because the more discreet men shall heare our justice, by so much the more vilely shall the adversaries of Iustice be confounded. In which notable discourse we see the lawfullnesse of a necessary defensive Warre yeelded and justified both by the King, his Counsell, and the Earle Marshall, as well against the King himselfe, if he invade his Subjects first, as any of his Forces who assist him. After which the Marshall flew many of his Enemies by an Ambuf…ado, while they thought to surprise him, and wasted and spoiled their goods, houses, lands; observing this generall laudable rule which they made, to doe no hurt, nor ill to any one, but to the Kings evill Counsellors by whom they were banished, whose goods, houses, woods, Orchards, they …poiled, burnt, and rooted up. The King remaining at Glocester, heard of these proceedings of the Marshall, but his forces being p. 31too weake, he durst not encounter him, but retired to Winchester with Bishop Peter, confounded with over much shame, leaving that Country to be wasted by his adversaries; where innumerable carcases of those there slaine lay naked and unburied in the wayes, being food to the beasts and birds of prey: a sad spectacle to passengers, which so corrupted the ayre, that it infected and killed many who were healthy. Yet the Kings heart was so hardned, by the wicked councell he followed, against the Marshall, that the Bishops admonishing him to make peace with him, WHO FOVGHT FOR IVSTISE: he answered, that he would never make peace with him, unlesse comming with an halter about his necke and acknowledging himselfe to be a Traytor, he would implore his mercy. The Marshall both in England and I…eland; professed that he was no Traytor; that his warre being but defensive, was just; immutabiliter affirmans, quod … sibi de j…re quod suum er at re…etere, & posse Regis & Co…sil orum sicorum, modis omnibus quibus poterat, infirmare.

rrPage 966. 967. Daniel. p. 178.William Roshanger in his continuation of Matthew Paris, speaking of the death of Simon Monfort Earle of Leycester, slaine in the Battle of Ev…sham, the greatest Pillar of the Barrons warres; useth this expression. Thus this magnificent Earle Symon, ended his labors, who not onelyonly bestowed his estate but his pe…son also, for releiefe of the oppression of the poore, for the asserting of Iustice, and the right of the Realme: he was commendably skilfull in learning, a dayly fr…quenter of divine Offices, constant in word, severe in countenance, most confiding in the prayers of Religious persons, alwayes very respectfull to Ec…lesiasticall persons. He earnestly adheared to Robert Grosthead Bishop of Lincolne, and committed his children to his education. By his advise he handled difficult things, attempted doubtfull things, concluded things begun, specially such things whereby he thought he might gaine desert. Which Bishop was said to have enjoyned him, as he would obtaine remission of his sinnes, that he should undertake this cause for which he contended even unto death, affirming, that the peace of the Church of England could never be esta…lished, but by th… materiall sword and constantly averting; THAT ALL WHO DIED FOR IT WERE CROWNED WITH MARTYRDOME. Some say that this Bishop on a time, laying his hand on the head of the Earles eldest sonne, said unto him. O most deare sonne, thou and thy father shall both dye on one day, and with one hand of death; YET FOR IVSTICE AND TRVTH. Fame reports that Symon after his death grew famous by many miracles, which for feare of the King came not in publicke. Thus this Historian, thus Robert Grosthead the most devout and learned Bishop of that age, (who most of any opposed the Popes Vsurpations and exactions) determine of the justice and lawfulnesse of the Barons Warres; Walter Bishop of Worcester concurring in the same opinion with Grosthead. The samessPage. 970. author Rishanger records; that the Earle of Glocester, a great stickler in these warres against the king with whom at last he accorded; signified to the King by his Letters Patents under his seale, that he would never …eure Armes against the King his Lord, nor against his Sonne Prince Edward, NISI DEFENDO; but onel… in his Defence: which the King and Prince accepting of, clearely proves; that defensive Armes against King or Prince were in that age generally reputed Lawfull, by King Prince, Prelates, Nobles, People. I may likewise adde to this what I read inttAn. … 265 p. 336. Matthew Westminster, that Richard Bishop of Chichester the day before the battle of Lewis against King Henry and his sonne (who were taken prisoners in it by the Barons and 20000. of their Souldiers slaine;) absolved all that went to fight p. 32against the King their Lord from all their sinnes. Such confidence had he of the goodnesse of the cause and justnesse of the warre.

In one word, therrMat. Par. p. 95…. 953. Speed, p 636. Dan. p. 178. oath of association prescribed by the Barons to the King of Romans, brother to King Henry the third, in the 43. yeare of his Raigne; Heare all men, that I Richard Earle of Cornewall, doe here sweare upon the holy Evangelists, that I shall be faithfull, and diligent to reforme with you the Kingdome of England, hitherto by the councell of wicked persons overmuch disordered: and be an effectuall Coadjutor TO EXPELL THE REBELLS, and disturbers of the same. And this Oath I will inviolaby observe, under pa…ne of losing all the lands I have in England: So helpe me God. Which Oath all the Barrons and their associates tooke, (by vertue whereof they tooke up armes against the Kings ill Councellors, and himselfe when he joined with them,) sufficiently demonstrate their publicke opinions and judgements of the lawfullnesse, the justnesse of their warres; and of all other necessarie defensive armes, taken up by the Kingdomes generall assent for preservation of its Lawes, Liberties, and suppression of those Rebels, and ill Councellors who fight against, or labour to subvert them by their policies.

xxW…lsing. Hist. Angl. p. 70 to 75. Ypodigma Neustr. An. 1309. 1310 Dan. Holinsh. Graf. Speed, Fab Sto… and others in his life: Fox Acts and Monuments, Ed…t. ult vol. 1. p. 480. 481.In the third yeare of King Edward the 2^d, this king revoking his great Mynion Piers Gav…ston, newly banished by the Parliament into Ireland, and admitting him into as great favour as before, contrary to his oath and promise: the Barrons hereupon by common consent sent the King word; that he should banish Piers from his company according to his agreement, or else they would certainely rise up against him as a perjured person. VponUpon which the King much terrified suffers Piers to abjure the Realme; who returning againe soone after to the Court at Yorke; where the king entertained him; the Lords spirituall and temporall, to preserve the liberties of the Church and Realme, sent an honourable message to the King, to deliver Piers into their hands, or banish him, for the preservatio… of the peace, Treasure and weale of the Kingdome; this wilfull King denies their just request; whereupon the Lords thus contemned and deluded, raifed an army, and march with all speede towards New-Castle, NOT TO OFFER INIVRIE OR MOLESTATION TO THE KING, but to apprehend Peirs, and judge him according to Law: upon this the King fleeth together with Peirs to Tinemouth, and from thence to Scarborough Castle, where Piers is forced to render himselfe to the Barrons, who at Warwicke Castle, (without any legall triall by meere martiall Law) beheaded him, as a subvertor of the Lawes, and an OPEN TRAITOR TO THE KINGDOME. For which facts this King afterwards reprehending and accusing the Lords in Parliament, in the 7^th yeare of his Raigne; they stoutly answered, THAT THEY HAD NOT OFFENDED IN ANY ONE POINT, BV… DESERVED HIS ROYALL FAVOVR, for they HAD NOT GATHERED FORCE AGAINST HIM (though he were in Piers his company, assisted, countenanced, and fled with him) BVT AGAINST THE PVBLICKE ENEMIE OF THE REALME: Whereupon there were two acts of oblivion passed by the King, Lords and Commons assembled in that Parliament, (Printed in the yyF. 43. 44:2^d Part of old Magna Charta:) The first, that no person (on the Kings part) should be questioned, molested, impeached, imprisoned, and brought to judgement, for causing Pierce to returne from Exile, or barboring, councelling or ayding him bere after his returne: The second on the Barons part, in these words: It is provided by the King, and by the Archbishops, Bish…ps, Abbots, Priors, Earles, Bar…ns and Commons, of the Realme, assembled according p. 33to our Command, and unun mously assented and accorded, that none of what estate or condition soever he be, shall in time, t… come be appealed or challenged, for the apprehending, deteining, or death of Peirsde Gaveston, nor shall for the said death be appr…hended▪ nor imprisoned, impeached, mol…sted, nor grieved, nor judgement given against him by us, nor by others at our suite, nor at the suite of any other, either in the Kings Court or elsewhere. Which act the King by his Writ, sent to the Iudges of the Kings Bench, commanding that t…is grant and concord shall be firme and stable i… all its points, and that every of them should be held, and kept in per petuitie; to which end he commands them to cause this act to be there inrolled, and fi…mely kept for ever. A pregnant evidence that the Barons taking up Armes then against this Traytor and enemie of the Realme, in pursuance of the Act and sentence of Parliament for his banishment, though the King were in his company, and assisted him all he might, was then both by King and Parliament, adjudged no Treason, nor Rebellion at all in point of Law, but a just & honorable action: Wherefore their taking up Armes is not mentioned in this Act of oblivion, seeing they all held it just, but their putting Piers to death, without legall triall; which in strictnesse of Law, could not be justified. Now whether this be not the Parliaments and kingdomes present case in point of Law (who tooke up armes principally at first, for defence of their owne Priviledges of Parliament, and apprehention of delinquents who seducing the king withdrew him from the Parliament, and caused him to raise an Army to shelter themselves under its power against the Parliament) let every reasonable man determine: and if it be so, we see this ancient Act of Parliament resolves it, to be no high Treason, nor Rebellion, nor offence against the King; but a just, lawfull act, for the kings, the kingdomes honour and safety.

Not long after this, the twozzWalsing. Holinsh. Fab. Graf. Stow, Speed, Daniel in his life. Spensers getting into the kings favour, and seducing, miscouncelling him as much as Gaveston did; the Lords and Barrons hereupon in the 14^th and 15^th yeares of his raigne, confederated together, to live and dye for justice, and to their power to destroy the TRAITORS OF THE REALME, Especially the two Spensers: after which they raised an Army, whereof they made Thomas Earle of Lancaster Generall; and meeting at Sherborne, they plunder and destroy the Spensers Castles, Mannors▪ Houses, Friends, Servants, and marching to Saint Albanes with Ensignes displayed, sent Messengers to the King then at London, admonishing him not onelyonly to rid his Court but Kingdome, if the TRAITORS TO THE REALME, the Spensers, (condemned by the Commons in many Articles) to preserve the peace of the Realme; and to grant them and all their followers Lette…s Pattents of indemnity, for what they had formerly done. Which the King at first denied but afterwards this Armie marching up to London, where they were received by the City, he yeelded to it, and in the 15^th yeare of his Raigne by a speciall Act of Parliament the said Spensers were disinherited and banished the Realme (for mis-councelling the king, oppressing the people by injustice, advising him to lovie warre upon his Subjects, making evill Iudges and other Officers to the hurt of the King and Kingdome, engrossing the Kings eare, and usur…ing his Royall authority) as ENEMIES of the King and OF HIS PEOPLE: and by another Act of Parliament, it was then provided, that no man should be questioned for any felonies or trespasses committed in the prosecution of Hugh…e de Sponsers the father and sonne; which Act runnes thus? Whereas of late many great men of the Realme surmised to Sir Hugh le Despenser the sonne and Father, many misdemeanors by them committed against the estate of our Lord the King and of his Crowne, and to the p. 34disinheritance of the great men and destruction of the people, and pursued those misdemeanors and attainder of them by force, because they could not be attainted by processe of Law, because that the said Sir Hughes had accroached to them the royall power in divers manner: the said Grandees having mutually bound themselves by oath in writing, without the advise of our Lord the King; and after in pursuing the said Hugh and Hugh, and their alies and adherents, the said great men and others, riding with banners displaied, having in them the Armes of the king and their owne; did take and occupie the Chattels, Villages, Mannors; Lands, Tenements, Goods, and likewise take and imprison some of the Kings leige people and others, tooke some and slew others, and did many other things, in destroying the said Hugh and Hugh, and their alies, and others in England, Wales, and in the Marches, whereof some things may be said Trespasses, and others felonies: and the said Hugh and Hugh, in the Parliament of our Lord the King, sommoned at Westminster three weekes after the Nativitie of Saint Iohn Baptist the 15. yeare of his Raigne, for the said misdemeanors were fore judged and banished the Realme, by a vote of the Peeres of the Land; and the foresaid great men in the said Parliament, shewed to our Lord the King, that the things done in the pursuite of the said Hugh and Hugh, by reason of such causes of necessity, cannot be legally redressed or punished without causing great trouble, or perchance warre in the land, which shall be worse; and prayed our Lord, that of all alliances, trespasses and felonies they might be for ever acquitted, for the preservation of peace, the avoyding of warre, and asswaging of angers and rancors, and to make unitie in the land; and that our Lord the King may more intirely have the hearts and Wills of the great men and of his people, to maintaine and defend his Lands, and to make warre upon and grieve his enemies. It is accorded and agreed in the said Parliament by our Lord the King, and by the Prelates, Earles, Barrons, and Commons of the Realme there assembled by command of our Lord the King, that none of what estate or condition soever he be for alliance, at what time soever made, by deed, oath, writing, or in other manner, nor for the taking, occupying, or detainer of Chattels, towns, Mannors, Lands, Tenements, and goods taken, imprisoning or ransoming the Kings leige People, or of other homicides, robberies, felonies, or other things which may be noted as trespasses or fellonies committed against the peace of the king by the said great men, their allies, or adherents in the pursuite aforesaid, since the first day of March last past, till the thursday next after the feast of the assumption of our Ladie, to wit, the 19. day of August next ensuing, be appealed, nor challenged, taken nor imprisoned, nor grieved, nor drawne into judgement by the King, nor any other at the suite of any other which shall be in the Kings Court or in any place else; but that all such trespasses and Felonies shall be discharged by this accord and assent: saving alwaies to all men, but to the said Hugh and Hugh, action and reason to have and recover their Chattels, Farmes, mannors, Lands, tenements, wards and marriages according to the Lawes and customes used in the Realme, without punishment against the king, or damages recovered against the party for the time aforesaid. For which end they prescribed likewise a Charter of Pardon annexed to this Act according to the purport of it, which every one that would might sue out, which Charter you may read in old Magna Charta.

From which Act of Parliament I shall observe these three things. First, that this their taking up Armes to apprehend the Sp…se…s as enemies to the King and kingdom, p. 35and marching with banners displayd, was not then reputed high Treason or Rebellion against the King, though it were by way of offence, not of defence, and without any authority of Parliament: for there is not one word of Treason or Rebellion in this Act, or in the Charter of pardon pursuing it: and if it had beene high Treason, this Act and Charters on it extending onelyonly to Fellonie and Trespasses not to Treasons and Rebellions, wouldbbDyer…. 50. pl. 4. Cooke, l. 6. f. 13. Stamford. f. 2. not have pardoned these transcendent Capita…l crimes. Secondly, that the unlawfull outrages, robberies, and murders committed by the souldiers on the kings leige people, and not on the two Spensers the sole delinquents, were the occasion of this Act of oblivion and pardon, not the Armed pursuing of them, when they had gotten above the reach of Law. Thirdly, that though this were an offensive not defensive warre, made without common assent of Parliament, and many murthers, robberies, and misdemeanors committed in the prosecution of it upon the kings leige people who were no Delinquents; yet being for the common good to suppresse and banish these ill Councellors, enemies, Traytors to King and Kingdome, the King and Parliament though it such a publicke service as merited a pardon of these misdemeanors in the carriage of it, and acquitted all who were parties to it, from all suites and punishments. All which considered, is a cleare demonstration, that they would have resolved our present defensive warre, by Authoritie of both Houses, accompanied with no such outrages as these; for the apprehension of such as have beene voted Traytors and Delinquents by Parliament, and stand out in contempt against its justice, for the defence of the Priviledges and Members of Parliament, the Liberties and properties of the subject, the fundamentall lawes of the Realme, the Protestant Religion now indangered by Papists up in Armes in England and Ireland to extirpate it, and the removing ill Counsellors from his Majestie; to be no high Treason, Rebellion or offence at all against the king, but a just and lawful Act, the very miscarriages wherof in the generall (except in such disorderly Souldiers for whom martiall Law hath provided due punishments) deserve a publike pardon both from King and Kingdome. And to put this out of Question; as no fancie of mine owne, we have an expresse Act of Parliament, resolving the taking up of Armes by the Queene, Prince, (both but subjects and capable of High Treason in such a case as well as others) the Nobles and people of the Realme against these two Spensers and other ill Counsellors about this king in the last yeare of his raigne, (though the King himself were in their Company, and taken prisoner by the Forces raised against them,) for the necessary preservation, reliefe, and safety of the Queene, Prince, Nobles, Kingdome, to be no high Treason nor offence at all: namely, the statute of 1. E. 3. c. 1. 2. 3. which I shall recite at large.Whereas Hugh Spenser the Father, and Hugh Spenser the Sonne, late at the suite of Thomas then Earle of Lancaster and Leycester, and Steward of England, by the common assent and vote of the Peers and Commons of the Realme, and by the assent of King Edward Father to our Soveraigne Lord the King, that now is, AS TRAITORS & ENEMIES OF THE KING, & OF THE REALME, were Exled, disinherited and banished out of the Realme for ever. And afterward the same Hugh by evill Councell, which the king had about him, without the assent of the Peeres and Commons of the Realme, came againe into the Realme: and they with other pro…cured the said king to pursue the said Earle of Lancaster, and other great men and people of the Realme, in which pursuite the said Earle of Lancaster and other great men and people of the Realme, were willingly dead and disinherited, and some p. 36outlawed, banished, and disinherited; and some disinherited and imprisoned, and some ransommed and disherited: and after such mischiefe the said Hugh and Hugh Master Rob…rt Baldocke and Edmo…d Earle of Arundell usurped to them the Royall power, so that the king nothing did, nor would doe, but as the said Hugh and Hugh, Robert and Edmond Earle of Arundell did councell him, were it never so great wrong▪ during which usurpation, by duresse and force against the Will of the Commons, they purchased Lands, as well by fines levied in the Court of the said Edward, as otherwise and whereas after the death of the said Earle of Lancaster, and other great men, our Soveraigne Lord the King that now is, and Dame Isabel Queene of England, his Mother, by the Kings will and Common Councell of the Realme, went over to Franc…, to treate of peace betweene the two Realmes of England and France, upon certaine debates then moved. The said Hugh and Hugh, Robert and Edmond Earle of Arundell continuing in their mischiefe, encouraged the king against our Soveraigne Lord the king that now is, his sonne, and the said Queene his wife, and by royall power which they had to them encroached, as afore is said, procured so much grievance by the assent of the said King Edward, to our Soveraigne Lord the King that now is, and the Queene his mother, being in so great jeopardy of themselves in a strange Country, and seeing the Destruction, Dammage, Oppressions, and Distractions which were notoriously done in the Realme of England, upon holy Church, Prelates, Earles Barons, and other great men, and the Commonalty by the said Hugh and Hugh, Robert and Edmond Earle of Arundell by the encroaching of the said royall power to them, to take as good Councell therein as they might. And seeing they might not remedie the same unlesse they came into England, with an Army of men of warre; and by the Grace of God with such puissance, and with the helpe of great men and Commons of the Realme, they have vanquished and destroyed the sayd Hugh and Hugh, Robert and Edmond: Wherefore our Soveraigne Lord King Edward that now is, at his Parliament holden at Westminster, at the time of his Coronation, the morrow after Candlemas, in the first yeare of his reigne, upon certaine Petitions and requests made unto him in the said Parliament upon such Articles above rehearsed, by the common councell of the Prelates, Earles, Barons, and other great men, and by the Commonalty of the Realme, there being by his Commandment, hath provided, ordained and stablished in forme following. First, that no great man, or other of what estate, dignity, or condition he be, that came with the said king that now is, and with the Queene his mother into the Realme of England, and none other dwelling in England, who came with the said king that now is,N…a. and with the Queene, In ayde of them to pursue their said enemies in which pursuite the King his Fat…er was taken and put in ward, and yet remaineth in ward, shall not be molested impeached or g…ieved in person or goods, in the kings Court, or other Court, for the pu…suite of the said king, taking and with holding of his body, nor pursu…te of any other, nor taking of their persons, goods, nor death of any man, or any other things perpetrate or committed in the said pursuite, from the day the said king and Queene did arme, till the day of the Coronation of the same king: and it is not the kings minde, that such offenders that committed my trespasse or other offence out of the pursuites should goe quit, or have advantage of this statute, but they shall be at their answere for the same at the Law. Item, that the repeale of the said Exile which was made by Dures and force be adnulled for evermore, and the said Exile made by award of the Peeres and Commons, by the kings assent as before p. 37is said, shall stand in his strength in all points, after the tenure of every particular therein contained. Item, that the Executors of the Testament of all those that were of the same quarrell dead, shall have actions and recover the Goods and Chattels of them, being of the said quarrell, whose executors they be; as they of the same quarrell should, &c.

Certainely here was an higher pursuite and levying warre against the King and his evill Councellors, then any yet attempted by this Parliament; and a warre rather offensive, then defensive, in which the king himself was both taken and d…t…ined Priso…r, and then forced to resigne his Crowne to his sonne; yet this is here justified, as a necessary, just and lawfull warre by an Act of Parliament, never yet repealed; and all that bare Armes against the king and his ill Councellors, yea they who pursued, apprehended, and imprisoned the king himselfe, are, as to this particular, discharged by the king, and whole Parliament from all manner of guilt, or punishment, or prosecution whatsoever against them. Which consideration mak…s me somewhat confident, that this King and the Parliament held in the 25. yeare of his Raigne, ch. 2. Which declares it high Treason, to levie warre against the King in his Realm…, did never intend it of a necessary defensive warre against a seduced King and his evill Councellors (especially by the Votes of both Houses of Parliament, who doubtlesse would never passe any Act to make themselves, or their Posteritie in succeeding Parliaments, Traytors, for taking up meere necessary defensive Armes for their owne, and the Kingdomes preservation) for that had beene diametra…ly contrary to this statute, made in the very first yeare and Parliament of this King; and would have l…yd an aspertion of High Treason upon the king himself, the Queene his Mother, their own Fathers, and many of themselves; who thus tooke up Armes and made a defensive kinde of warre upon King …dwar… the 2^d, taking him p…isoner: but onelyonly to Rebellious insurrections, of private persons, without any publick authority of Parliament, or the whole Kingdome in generall; and of meere offensive warres against the King without any just occasion, hostilitie or violence on the Kings part, necessitating them to take up defensive Armes: which I humbly submit to the judgement of those grand Rabbies and Sages of the Law, and the Honorable Houses of Parliament, who are best able to resolve, and are the onelyonly Iudges to determine this point in controversie, by the expresse letter and provision of 25. Ed. 3. ch. 2. of Treasons.

In theccWalsing Hist. Angl p. 213 See Holinsh. Speed. Trisse… l in Rich. 2 and Cambdens Britania, of the British Is. lands, p. 2…4. first yeare of king Richard the 2^d. Iohn Mercer a Scot, with a Navie of Spanish, Scottish & French ships much infested the Marchants and Coasts of England …aking many prises without any care taken by the king, Lords, or Councell to resist them. Whereupon Iohn Philpot a rich Merchant of London, diligently considering the defect, that I say not treachery of the Duke of I ancaster, and other Lords who ought to defend the Realme, and gri…ving to see the oppressions of the people, did at his proper charge hire a thousand souldiers and set out a fleete, to take the said Mercers ships, with the goods he had gotten by Pyracie, and defend the Realme of England from such incursions: who in a short time tooke Mercer prisoner, with 15. Spanish ships, and all the Booties he had gained from the English: whereat all the people rejoyced exceedingly, commending and extolling Philpot for the great love he shewed to his Countrey, and casting out some reproachfull words against the Nobles and Kings councell who had the rule of the kingdome and neglected its defence: Whereupon the Nobility, Earles and Barons of the Realme, conscious of this their negligence, and envying Philpot p. 38for this his Noble praise-worthy action, began not onelyonly secretly to lay snares for him, but openly to reproach him, saying: That it was not lawfull for him to doe such things without the advise or councell of the King and Kingdome: quasi non licuisset benefacere Regi VEL REGNO sine consilio Comitum & Baronum: (writes Walsingham) as if it were not lawfull to doe good to the King or Kingdome, without the advise of the Earles and Barrons, or Lords of the Privie Councell. To whom objecting these things, and especially to Hugh Earle of Stafford, who was the chiefe Prolocutor and spake most against it, Iohn Philpot gave this answere: Know for certaine, that I have destinated my money, ships, and men to sea to this end, not that I might deprive you of the good name and honour of your Militia, or warlike actions, and engrosse it to my selfe, but pittying the misery of my Nation and Country, which now by your sloathfulnesse, of a most Noble kingdome, and Lady of Nations, is devolved into so great misery, that it lyeth open to the pillage of every one of the vilest Nations, seeing there is none of you, who will put your hand to its defence. I have exposed me and mine therefore for the Salvation of my proper Nation, and fr…eing of my Country. To which the Earle and others had not a word to reply. From this memorable history and discourse (which I have translated verbatim …ut of Walsingham,) I conceive it most evident, that in the default of king and Nobles, it is lawfull for the Commons and every particular subject without any Commission from the king or his Councell, in times of iminent danger, to take up Armes and raise Forces by Sea or Land to defend the king and his Native Country against invading enemies; as Philpot did, without offence or crime. Then much more may the Houses of Parliament, the representative body of the whole kingdome, and all private Subjects by their Command, take up necessary defensive Armes against the kings Popish and Malignant Forces to preserve the king, Kingdome, Parliament, People from spoyle, and ruine.

InccWalsin. hist. Angl p 341. the 8. yeare of King Richard the 2^d. there arose a great difference betweene the Duke of Lancaster, & the king & his young complices, who conspired the Dukes death; agreeing sodainely to arrest and arraigne him before Robert Trisilian Chiefe Iustice, who boldly promised to passe sentence against him, according to the quality of the crimes objected to him. VponUpon this the Duke having private intelligence of the…r treachery, to provide for his owne safety, wisely withdrew himselfe, and posted to his Castleat Ponfract, storing it with Armes and Victualls. Hereupon not onelyonly a private but publicke discord was like to ensue; but by the great mediation and paines of Ione the kings mother, an accord and peace was made betweene them: and this defence of the Duke by fortifying his Castle with Armes against the King and his ill instruments for his owne just preservation, held no crime. If such a defence then were held just and lawfull in one particular Subject and Peere of the land onelyonly, much more must it be so in both Houses of Parliament, and the Kingdome, in case the Kings Forces invade them.

In theeeWalsing. Hist. Ang. p. 358, to 367. Polyc. Fab. Speed, Graft. Holin. Howes, Trussel. in 10. & 11 R. 2. 11. R. 2. c. 1. to 7. 10^th yeare of King Richard the second this unconstant king being instigated by Michael de la Pole, Robert Vcere Duke of Ireland, Alexander Nevill Archbishop of Yorke, Robert Trysilian, and other ill Councellors and Traytors to the kingdome, endeavoured to seize upon the Duke of Glocester, the Earles of Arundell, Warwicke, Derby, Notingham, and others who were faithfull to the kingdome, and to put them to death, having caused them first to be indighted of High Treason at Nottingham Castle, and hired many Souldiers to surprise them: Hereupon these Lords for their owne just p. 39defence, raised Forces and met at Harynggye Parke with a numerous Army: whereat the King being much perplexed, advised what was best for him to do. The Archbishop of Yorke and others of his ill Councell, advised him to goe forth and give them battle▪ but his wisest councellors disswaded him, affirming, that the King should gaine no benefit if hee vanquished them, and should sustaine great dishonour and losse if he were conquered by them. In the meane time Hugh Linne an old Souldier, who had lost his senses, and was reputed a foole, comming in to the Councell, the King demanded of him in jest, what hee should doe against the Nobles met together in the saide Parke? who answered; Let us goe forth and assault them, and slay every mothers sonne of them, and by the eyes of God, this being finished, THOV HAST SLAINE ALL THE FAITHFVLL FRIENDS THOV HAST IN THE KINGDOME. Which answere, though uttered foolishly; yet wise men did most of all consider. At last is was resolved by the mediators of Peace, that the Lords should meete the King at Westminster, and there receive an answere to the things for which they tooke Armes; thither they came strongly Armed with a great guard, for feare of ambuseadoes to intrap them: where the Chauncellour in the Kings name spake thus to them. My Lords, our Lord the King hearing that you were lately assembled at Harenggye Parke in an unusuall manner; would not rush upon you as he m…ght have easily done, had he not had care of you, and those who were with you: because no man can doubt, if he had raised an Army, he would have had many more men than you, and perchance much … lood of men had beene spilt, which the King doth most of all abhorre, and therefore assuming to himselfe patience and mildnesse, he hath made choyce to convent you peaceably, and to tell him the reason why you have ass…mbled so many men. To which the Lords answered, That THEY HAD MET TOGETHER FOR THE GOOD OF THE KING AND KINGDOME; AND THAT THEY MIGHT PVLL AWAY THOSE TRAITORS FROM HIM, WHICH HE CONTINVALLY DET AINED WITH HIM. T…e Traytors they appealed were the foresaid ill Councellors, and Nicholas Brambre the false London Knight: and to prove this appeale of them true, casting down their gloves they said they would prosecute it by Duell: The King answered; This shall not be done now, but in the next Parliament, which we appoint to be the morrow after the Purification of the blessed Virgin, to which as well you as they comming, shall receive satisfaction in all things according to Law. The Lords for their owne safety kept together till the Parliament, and in the meane time d…feated the Forces of the Duke of Ireland, raised privately by the Kings Command to surprise them. The Parliament comming on in the 11. yeare of Richard the second: these ill councellors were therein, by speciall Acts attainted, condemned of High Treason, and some of them executed; and these defensive Armes of the Lords, for their owne and the Kingdomes safety, adjudged and declared to be no Treason: but a thing done to the honour of God, and Salvation of the King and his Realme: witnesse the expresse words of the Printed Act of 11 R. 2. c. 1. which I shall transcribe. Our Soveraigne Lord the King amongst other Petitions and requests to him made by the Commons of his said Realme in the said Parliament, hath received one Petition in the forme following. The Commons prayed, that whereas the last Parliament for cause of the great and horrible mischiefes and perills which another time were fallen BY EVILL GOVERNANCE WHICH WAS ABOVT THE KINGS PERSON, by all his time before by Alexander late Archbishop of Yorke, Robert de Veere late Duke of Ireland, Michael de la Pole late Earle of Suffolk, p. 40Rober Trisilian, late Iustice, and Nicholas Brambre Knight, with other their adherents, and others, Whereby the King and all his Realme, were very nigh to have beene wholly undone and destroyed; and for this cause, and to eschew such perils and mischiefes for the time to come a certaine statute was made in the same Parliament, with a Commission to diverse Lords, for the weale, honour and safeguard of the King, his regalty and of all the Realme, the tenour of which Commission hereafter followeth: Richard, &c. as in the Act. And thereupon the said Alexander, Robert, Mighill, Robert, and Nicholas and their said adherents, seeing that their said evill governance should be perceived, and they by the same cause more likely to be punished by good justice to be done, and also their evill deedes and purposes before used to be disturbed by the sayd Lords assigned by commission as afore; made, conspired, & purposed divers horrible Treasons, and evils against the King, and the said Lords so assigned, and against all the other Lords and Commons, which were assenting to the making of the said Ordinance and Commission, in destruction of the king, his Regalty, and all his Realme. Whereupon Thomas Duke of Glocester the kings Vncle, Richard Earle of Arundle, and Thomas Earle of Warwicke, perceiving the evill purpose of the sayd Traytors, did assemble themselves in forcible manner for the safety of their persons, to shew and declare the said Treasons and evill purposes, and thereof to set remedie; as God would, and came to the Kings presence, affirming against the said 5. Traytors appealed of High Treason, by them done to the King, and to his Realme: upon which appeale the king our Soveraigne Lord, adjourned the said parties till this present Parliament, and did take them into his safe protection, as in the record made upon the same appeale fully appeareth. And afterwards in gre…t Rebellion, and against the said protection, the said Traytors, with their said adherents and others aforesaid, continuing their evill purpose, some of them assembled a great power (by letters and Commission from the King himselfe, as Walsingham and others write) to have destroyed the said Duke and Earles appellants, and other the kings lawfull leige people, and to accomplish their Treasons and evill purposes aforesaid. Whereupon the said Duke of Glocester, Henry Earle of Darby, the sayd Earles of Arundell and Warwicke, and Thomas Earle Marshall, Seeing the open Destruction of the King and all his Realme, if the said evill purposed Traitors and their adherents, were not disturbed, which might not otherwise have beene done, but with strong hand; for the weale and safeguard of the King our Soveraigne Lord, and of all his Realme, did assemble them forcibly, and rode and pursued till they had disturbed the said power gathered by the said Traytors, and their adherents aforesaid, which five Traytors be attainted this present Parliament of the Treasons and evills aforesaid, at the suite and appeale of the said Duke of Glocester, Earles of Darby, Arundle, Warwicke, and Marshall. That it would please our redoubled Soveraigne Lord the King to accept, approve, and affirme, in this present Parliament, all that was done in the last as afore, and as much as hath beene done since the last Parliament by force of the statute, Ordinance, or Commission aforesaid; and also All that the said Duke of Gloc…ster Earles of Arun…ell and Warwicke did; and that the same Duke and Earles, and the said Earles of Derby, and Marshall or any of them did, Or any other of their company or of their ayde, or of their adherents, or of any of them, or touching the Assemblies, Ridings, Appeales, and Pursuites aforesaid, … As a thing made to the Honour of God, Salvation of the King, maintenance of his Crowne, and also of the Salvation of all his Realme (therefore doubtlesse no Treason p. 41Rebellion, nor any offence in point of Law:) and also to Or … and St…bl…sh, that' the said Duke of Gl…c…ster, Earles of Darby, Arundell, W…rwicke and Marshall, nor none of them, nor none of such as have beene of their returne, or company, force, ayde or councell, or any of them in the things aforesaid, nor none other person for any thing aforesaid shall be impeached, molested, or grieved at the suite of the king, nor of the party, nor in other manner, because of any assembly, riding, beating, levying of Penons, or of Banners, discomfiture, death of a man, imprisonment of any person, taking, leading away, or detinue of any horses or of any other beasts, taking or carriage of goods, harnesse, armour, cattle, and other movable goods, breaking of houses, or of other possessions or goods, assault, battery, robberies, thefts, comming or tarrying with force and armes, or armed in the Kings presence at the Parliament, or Councell, or else where. Raysing of people, or exciting the people to rise forcibly against the peace by letters, commissions, or any other deeds, or of any other thing that may be surmised by them, or any of them, or ought or purposed to have beene done from the beginning of the world, touching any of the said matters before the end of this present Parliament by any imagination, interpretation, or other colour, but shall bee quit and discharged for ever: except that the King be answered of all the goods, and cattels that were to them which be attainted in this present Parliament, or to any of them, and which goods and things were taken by any person the first day of Ianuary last past, or after hitherto. We considering the matter of the said Petition to be true, and the request of the said Commons in this party**Nota. to be to the honour of God, and the profit of us and our Realme, of the assent of the Prelates, Dukes, Earles, Barrors and all others of this present Parliament, doe garnt the requests of the said Commons in all points, after the forme of the said Petition. And moreover of the assent aforesayd, we will and grant for the greater quietnesse of our said Realme, though that the said Duke or Earles appellants, or any other of their company, retinue, force, ayde, councell or adherents, or any of them have taken, led away, or withholden any of our Iusticers, or any other of our ministers, in disturbance of execution of the Law of our Realme of England, or in other manner, or that they have taken any manner of person as Traitors to Us or to our Realme, or other person, and the same have voluntarily suffered to goe at large, or escape beyond the sea from the 14^th day of Novemb. last past, till the end of this present Parliament; that they nor any of them be for this cause impeached, molested, nor grieved any manner of way at the suite of us, our heires, nor none other party, but thereof they shall be quit, and discharged for ever; nor that they nor any of them be in any wise molested, grieved, nor impeached at the suite of us, our heires, or other party for any thing done at any time for to a taine to their purpose against the said appealers or any of them, or against any other person for this cause, nor for any other thing or deed to affirme the same purposes, till the end of this present Parliament, but thereof shall be acquitted.

This Act with others made the same Parliament continued inviolable without dispute for 10. yeers space, during w^ch there were 8. more Parliaments held w^ch approved in but it: 21 R. 2. the King havingffSee Walsingh. Holensh. Graft. Speed, Stow, Trvsselt. in 21. R 2. & 21 R c. 16: 17 18. 19. But especially ca. 20. will manifest the unjustnesse of this unlawful packed conventicle if I may so call it. violently seised upon the Duke of Glocester & the Earles of Warwicke and Arundell, and packed a Parliament to his minde, by not summoning any Lords thereto but those of his party, by causing divers Knights and Burgesses of his own nomination, never chosen by the people, to be returned in divers places, and overawing the rest with a guard or 4000. Cheshire Archers, caused these Lords to be illegally attainted of Treason upon fained pretences, out of this old grudge, and the p. 42Acts of this Parliament to be reversed; yet not this Act, as I conceive, which is part of it, being specially saved by 21. R. 2. c. 13. But however by the statute of 1 H. 4. c. 3. 4. the Parliament of 21. was wholly repealed, reversed, revoked, voyded, undone and anulled for ever, with all the Acts, circumstances, and dependants thereof: and this Parliament of 11. R. 2. Enacted to be firmely holden and kept after the purport and effect of the same; as a thing made for the great Honour and common profit of the Realme, and ch. 5. It is ordained and assented, that the Lords and other which were forejudged in the Parliament holden the said 21. yeare, or by Authority of the same, which now be in life, and the heires of the Lords and others that be dead, shall be wholly restitute and restored to their names, all manner of inheritaments and possessions, reversions, fees, reversions, offices, liberties, and franchises as intirely as the said Lords and others which be in life, or the Lords and other which be dead, ancestors of the heires, or the feoff…es of the said Lords or other aforesaid, or other feoffees to their use, were at the time of the judgement given against them, the said 21 yeare, by entrie, without other suite thereof to be made, or livery to be had of the same. And all the goods and chattels which were the said Lords, or the other persons aforesaid so forejudged, whereof the king is not answered, and be in the hands of the Sheriffes, Escheators, or other Officers, Ministers, or any other and concealed by them, the king wills and granteth, that the same Lords and other which now be in life, and the Executors, and administrators of them that be dead; shall have thereof delivery and restitution; and that the Sheriffes, Escheators, Officers and Ministers so occupying the said goods and chattels by such concealment, bee punished for the same concealement.

So that by the expresse resolution of these two severall Parliaments, these Lords and Commons taking up defensive Armes and making war against those wicked Councellours of this King which sought their ruine, and endeavoured the destruction of the Realme (though they had the kings presence and commissions to countenance all their actions and proceedings of this nature, and the Lords wanted the Ordinances of both houses to authorize this their arming, and war) was solemnely declared and adjudged, to be no Treason nor Rebellion at all, nor levying of warre against the king, within the statute of 25. E. 3. but contrarywise; a thing done to the honour of God, the Salvation of the King, (for if the Kingdome perish or miscarry, the king as king must needs perish with it) the maintenance of his Crowne, (supported onelyonly by the maintenance of the kingdomes welfare) and the Salvation and common profit of all the Realm: and this being one of the first solemne judgements (if not the very first) given in Parliament after the making of the statute of 25 E. 3. which hath relation to its clause of levying war, must certainely be the best exposition of that Law: which the Pa…liament onelyonly ought to interpret, as is evident by the statute of 21. R. 2 c. 3. (It is ordained and stablished, that every man which, &c. or he th… raiseth the people and riseth against the King to make warre within his Realme; and of h…t be duly attainted and judged in the Parliament shall be judged as a Traytor of High Treason against the Crowne, ) and other forecited Acts: and if this were no Treason, nor Rebellion, nor Trespasse in the Barons against the king or kingdome; but a warre for the honour of God, the salvation of the king, the maintenance of his Crowne, the safety and common profit of …ll the Realme; much more must our Parliaments present defensive warre against his Majesties … Councellors, Papists, Malignants, Delinquents, and men of desperate fortunes, risen p. 43up in Armes against the Parliament, Lawes, Religion, Liberties, the whole Kingdomes peace and welfare, be so too; being backed with the very same, and farre better, greater authority, and more publike reasons then their warre was, in which the safety of Religion was no great ingredient, nor the preservation of a Parliament from a forced dissolution, though established and perpetuated by a publike Law.

King Henry the 4^th. taking up Armes against King Richard, and causing him to be Articled against, and judicially deposed in and by Parliament for his Male-administration; It was Enacted by the Statute of 1. Hen. 4. cap. 2. That no Lord Spirituall nor Temporall, nor other, of what estate or condition that he be, which came with King Henry into the Realme of England, nor none other persons whatsoever they be, then dwelling within the same Realme, and which came to this King in aide of him, to pursue them which were against the Kings good intent, and the COMMON PROFIT OF THE REALME, in which pursuite Richard late King of England, the second after the Conquest, was pursued taken and put in Ward, and yet remaineth in Ward, be impeached, grieved, nor vexed in person, nor in goods, in the Kings Court, nor in none other Court, for the pursuites of the said King, taking and with-holding of his body, nor for the pursuits of any other, taking of persons and cattells, or of the death of a man, or any other thing done in the said pursuite, from the day of the said King that now is arived, till the day of the Coronarion of Our said Soveraigne Lord Henry. And the intent of the King is not, that offendors which committed Trespasses, or other offences out of the said pursuits, without speciall warrant, should be ayded, nor have any advantage of this Statute, but that they be thereof answerable at the Law. If those then who in this offensive Warre assisted Henry the 4^th. to apprehend, and depose this perfidious, oppressing tyrannicall king, seduced by evill Counsellors and his owne innate dis-affection to his naturall people, deserved such an immunity of persons and goods, from all kinds of penalties, because though it tended to this ill kings deposition, yet in their intentions it was really for the common profit of the Realme, as this Act defines it. No doubt this present defensive Warre alone against Papists, Delinquents, and evill Counsellors, (who have miserably wasted, spoiled, sacked many places of the Realme, and fired others in a most barbarous maner,**See Albaricus Gentiles de Iure Be…li lib. … cap. 18. 20, 21. 22. 23 contrary to the Law of Armes and Nations, and labour to subvert Religion, Laws, Liberties, Parliaments, and make the Realm a common Prey) without any ill intention against his Majesties Person, or lawfull Royall Authority, deserves a greater immunity; and can in no reasonable mans judgement, be interpreted any Treason, or Rebellion against the king, or his Crowne, in Law or Conscience.

InggG…oston, p. 625. 6…6▪ 627 628. Hall. 32. & 33 H 6. f. 167. 168. Holinshead, Stow Speed, Fabian. the 33. yeare of king Henry the 6^th. (a weake Prince wholly gui…ed by the Queene and Duke of Somerset, who ruled all things at their wills, under whose Government, the greatest part of France was lost;) all things went to ruine both abroad and at home; and the Queene (much against the Lords and Peoples mindes.) preferring the Duke of Sommerset to the Captain ship of Calice, the Commons and Nobility were greatly offended thereat, saying, That he had lost Normandy, and so would he doe Calice. Hereupon the Duke of Yorke, the Earles of Warwicke and Salisbury, with other their adherents, raised an Army in the Marches of Wales, and Marched with it towards London, to suppresse the Duke of Sommerset with his Faction, and reforme the Governement. The king being credibly informed hereof, assembled his Host, and marching towards the Duke of Yorke and his Forces, was encountred p. 44by them at Saint Albanes, notwithstanding the kings Proclamation to keepe the Peace; where in a set Battell, the Duke of Somerset, with divers Earles, and 8000. others were slaine on the kings part, by the Duke of Yorke, and his companions, and the king in a manner defeated. The Duke after this Victory obtained, remembring that he had oftentimes declared and published abroad; The onelyonly cause of this War to be, THE ADVANCEMENT OF THE PVBLIKE WEALE, and TO SET THE REALME IN A MORE COMMODIOVS STATE and BETTER CONDITION; Vsing all lenity, mercy, and bounteousnesse, would not once touch or apprehend the body of King Henry, whom he might have slaine, and utterly destroyed, considering that hee had him in his Ward, and Governance; but with great honour and due reverence, conveyed him to London; and so to Westminster: where a Parliament being summoned and assembled soone after; It was therein Enacted, That no person should either judge or report any point of untruth of the Duke of Yorke, the Earles of Salisbury and Warwicke, For comming in Warlike manner against the King at Saint Albanes, Considering that their attempt and enterprise, Was onelyonly to see the Kings Person in Safeguard and Sure-keeping, and to put and Alien from Him the publike Oppressors of the Common wealth; by whose misgovernance, his life might be in hazard, and his Authority hang on a very small Thred. After this, thehhHall, Graft. Fabian, Caxton, Holinshed Stow, speed, Anno 37. 38. & 39. R 6. Duke, an… these Earles raised another Army, for like purpose, and their owne defence in the 37 and 38 yeares of H. 6. for which they were afterwards, by a packed Parliament at Coventree, by their Enemies procurement, Attainted of high Treason, and their Lands and Goods confiscated. But in the Parliament of 39. H. 6. cap. 1. The said attainder, Parliament, with all Acts and Statutes therein made, were wholly Reversed Repealed, annulled; as being made by the excitation and procurement of seditious ill disposed Persons for the accomplishment of their owne Rancor and Covetousnesse, that they might injoy the Lands, Offices, Possessions, and Goods of the lawfull Lords and liege People of the King; and that they might finally destroy the said lawfull Lords, and Liege People, and their Issues and Heires forever (as now the Kings ill …ounseilors, and hungry Cavalleers seek to destroy the Kings faithfull Liege Lords and People, that they may gaine their Lands and Estates; witnesse the late intercepted Letter of Sir Iohn B…ooks, giving advise to this purpose to his Majestie:) and this Assembly was declared; to be no lawful Parliament, but a devillish Counsell, which desired more the destruction then advancement of the Publike weale; and the Duke, Earles, with their assistants were restored, and declared to be Faithful and Lawful Lords, and Faithful liege People of the Realme of England, who alwaies had great and Fathfull Love to the Preferrement and Surety of the Kings Person, according to their Duty.

If then these two Parliaments acquitted these Lords and their companions, thus taking up Armes, from any the least guilt of Treason and rebellion against the King, because they did it onelyonly for the advancement of the publike weale, the setting the Realme in a better condition the removing ill Counsellors; and publike oppressors of the Realme from about the King, and to rescue his person out of their hands: then questionlesse by their resolutions, our present Parliaments taking up defensive armes, upon the selfe-same grounds, and other important causes (and that by consent of both Houses, which they wanted) can be reputed no high Treason nor Rebellion against the King in point of Law; and no just, no rationall Iudge or Lawyer can justly averre the contrary, p. 45against so many forecited resolutions in Parliament, even in printed Acts.

TheiiGraston, p. 847. 848 Hal. 3. R. 3. f. 5…. 56. See Holished, Stow, Speed, & Barons Henry 7. Earle of Richmund, afterward King Henry the seventh, taking up armes against Richard the third, (a lawfull King, de facto, being crowned by Parliament; but an Vsurper and bloody Tyrant in Verity;) to recover his Inheritance, and Title to the Crowne, and ease the Kingdome of this unnaturall blood-thirsty Oppressor, before his fight at Boswell Field, used this Oration to his Souldiers, pertinent to our purpose. If ever God gave victory to men fighting in a just quarrell; or if he ever aided such as made warre for the wealth and tuition of their owne naturall and nutritive Countrey: or if he ever succoured them which adventured their lives for the reliefe of Innocents, suppression of malefactors, and apparent Offenders; No doubt, my Fellowes and Friends, but he of his bountifull goodnesse will this day send us triumphant victory, and a lucky revenge over our proud Enemies, and arrogant adversaries; for if you remember and consider the very cause of our just quarrel, you shall apparently perceive the same to be true, godly, and vertuous. In the which I doubt not but God will rather ayde us, (yea, and fight for us) then see us vanquished, and profligate by such as neither feare him, nor his Lawes, nor yet regard Iustice and honesty. Our cause is so just, that no enterprise can be of more vertue, both by the Laws Divine and Civill, &c. If this cause be not just, and this quarrell godly, let God, the giver of victory judge and determine, &c. Let us therefore fight like invincible Gyants, and set on our enemies like untimorous Tygers, and banish all feare like ramping Lyons. March forth like strong and robustious Champions, and begin the battaile like hardy Conquerors; the Battell is at hand, and the Victory approacheth, and if wee shamefully recule, or cowardly fly, we and all our sequele be destroyed▪ and dishonoured for ever. This is the day of gaine, and this is the time of losse; get this dayes victory, and be Conquerours; and lose this dayes battell, and bee villaines. And therefore in the name of God, and Saint George, let every man couragiously advance his standard: They did so, flew the Tyrannicall Vsurper, wonne the Field; And in the first Parliament of his Raigne, there was this Act of indemnity passed, That all and singular persons comming with him from beyond the Seas into the Real…e of England, taking his party and quarrell, in recovering his just Title and Right to the Realme of England▪ shall be utterly discharged, quit, and unpunishable for ever, by way of action, or otherwise, of or for any murther, slaying of men, or of taking and disporting of goods, or any other trespasses done by them, or any of them, to any person or persons of this his Realme against his most Royall Person, his Banner displayed in the said field, and in the day of the said field, &c.

Which battell though it were just, and no Treason nor Rebellion in point of Law in those that assi…ted King Henry the 7^th. against this Vsurper; yet because the killing of men, and seising their goods in the time of Warre, is against the very fundam…ntall Lawes of the Realme, they needed an Act of Parliament to discharge them from suits and prosecutions at the Law for the same: the true reason of all the forecited Acts of this nature, which make no mention of pardoning any Rebellions or Treasons against the King, (for they deemed their forementioned taking up of Armes no such offences) but onelyonly discharge the Subjects from all suites, actions, and prosecutions at Law for any killing or slaying of men, batteries, imprisonments, robberies and trespasses, in seising of Persons, Goods, Chartels.

What our Princes and State have thought of the lawful…esse of necessary Defensive p. 46Warres of Subjects against their oppressing Kings and Princes, appeares by those aides and succours which our Kings in former ages have sent to the French, Flemmings, Almaines, and others, when their Kings and Princes have injuriously made Warres upon them, and more especially, by the publike ayde and assistance which ouriiSpeeds Hist. p. 1192. to 1197 1…36 1237. Gamston Hist. of the Netherlands, l. 10. p 611. 612. &c. and Imperiall Hist. p. 730. to 8…6. Queene Elizabeth and King Iames by the publike advise and consent of the Realme, gave to the Protestants in France, Germany, Bohemia, and the Netherlands against the King of France, the Emperour, and King of Spaine, who oppressed and made Warre upon them, to deprive them of their just Liberties and Religion, of which more hereafter. Certainely, had their Defensive Warres against their Soveraigne Princes to preserve their Religion, Liberties, Priviledges, beene deemed Treason, Rebellion, in point of Law: Queene Elizabeth, King Iames, and our English State, would never have so much dishonoured themselves, nor given so ill an example to the world, to Patronize Rebells or Traitours; or enter into any solemne Leagues and Covenants with them as then they did, which have been frequently renued and continued to this present.

And to descend to our present times; our King Charles himself hath not onelyonly (in shew at least) openly aided the French Protestants at Ree and Rochel against their King who warred on them; the Germane Princes against the Emperour; the Hollanders, and Prince of O…a…ge, (to whose Sonne hee hath married his elstest Daughter) against the Spaniard, and entred into a solemne League with them, (which hee could not have done in point of Law, Iustice, Honour, Conscience, had they beene Rebells or Traytors, for standing on their guards, and making defensive Warres onelyonly for their owne and their Religions preservation;) but likewise by two severall publikekkSee the acts of Pacification and Oblivion in both these Kingdomes. Acts of Parliament, the one in England, the other in Scotland, declaring, the Scots late …aking up Armes against him and his evill Counsellors, in defence of their Religion, Law…s, Priviledges, to be no Treason, nor Rebellion; and them to bee his true and loyall Subjects (notwithstanding all aspertions cast upon them by the Prelaticall and Popish Party) because they had no ill or disloyall intention at all against his Majesties Person, Crowne, and Dignity, but onelyonly a care of their owne preservation, and the redresse of th…se Enormities, Pressures, grievances in Church and State, which threatn…d desolation unto both. If then their seizing of the Kings Fortes, Ammunition, Revenues, and raising an Army for the foresaid ends, hath by his Majesty himselfe, and his two Parliaments of England and Scotland, beene resolved and declared to be no Treason, no Rebellion at all against the King; by the very same, (or better reason, all circumstances duely pondered) our Parliaments present taking up Armes and making a Defensive Warre for the endes aforesaid, neither is, nor can be adjudged Treason or Rebellion, in point of Law or Iustice.

In fine, the King himself in hisllAn exact Collection of all Remonstrances, &c. p. 319. 331. Answer to the 19. Propositions of both Houses, Iune 3. 1642. Confesseth, and calleth God to witnesse: That a… the Rights of his Crowne are vested in h…m for his Subjects sake: That the Prin…e may not make use of his high and perpetuall power to the hurt of those, for whose good he hath it; nor make use of the name of publike Necessity, for the gaine of his private Favourites and Followers, to the detriment of his people; That the House of Commons may impeach those, who for their owne ends, though countenanced with any surreptitiously gotten Command of the King, have violated that Law, which he is …ound (when he knowes it) to protect, and to protection of which they were bound to advise him, at least, Not to serve him in the p. 47Contrary (let the Cavalleers and others consider this:) and the Lords being trusted with a Iudiciary power, are an excellent screene and banke betweene the King and people, to assist each against any Incroachments of the other; and by just Iudgements to preserve that Law, which ought to be the Rule of every one of the three. Therefore the power Legally placed in both Houses, Being more then sufficient to prevent and restraine the power of Tyranny; by his Majesties owne Confession; it must needs be such a power as may legally inable both Houses, (when Armes are taken up against them, by the King or any other, to subvert Lawes, Liberties, Religion, and introduce an Arbitrary government;) not onelyonly to make Lawes, Ordinances, and Assessements, but likewise to take up Armes to defend and preseve themselves, their Lawes, Liberties, religion, and to prevent, restraine all forces raysed against them, to set up Tyranny; else should they want not onelyonly a more then sufficient, but even a sufficient necessary power, to prevent and restraine the power of Tyranny; which being once in armes cannot bee restraned, prevented, repulsed, with Petitions, Declarations, Lawes, Ordinances, or any Paper Bulwarkes and Fortifications, or other such probable or possible meanes within the Parliaments power,mmAlbert. Gentil. de Iure Belli, li. 1. ca. 13. 14. 15. but onelyonly by Armes and Militarie Forces, as reason and experience in all Ages manifest.

From all which pregnant punctuall domesticke Authorities and resolutions of Ancient, Moderne, and present times, I presume I may infallibly conclude; That the Parliaments present taking up necessary Defensive Armes, is neither, Treason, nor Rebellion, in iudgement of Law; but a iust and lawfull Act, for the publicke benefit and preservation of King, Kingdome, Parliament, Lawes, Liberties, Religion; and so neither their Generall, Souldiers, nor any person whatsoever imployed by them in this War, or contributing any thing towards its maintenance, are or can be Legally indicted, prosecuted, or in any manner proceeded against as Traitors, Rebels, Delinquents against the King or Kingdome; and that all Proclamations, Declarations, Indictments, or proceedings against them, or any of them, as Traitors, Rebels, or Delinquents, are utterly unlawfull, uniust, and ought to be reversed as meere Nullities.

It would be an infinite tedious labour for me to relate, what Civilians and Canonists have written concerning Warre, and what Warre is just and lawfull, what not: In briefe, they all generally accord;nnGratian causa 23. qu 1. 2. 3. and the Canonists in their Glesses on that Text. Summa Angelica & Rosel. Til …el Anto. Cortes. Reper. in Abatem tit. Beilum; Iacob. Spieleg. & 10. Calvin. Lexi. Iurid. Tit. …el. Mart Lauden de Beil. Tract. Alber. Gent. de jure belli Petrinus Belli de Re… milita. & bel…o tract. De Iure belli Belg. Hagae, 1599. Hugo G…ot. de Iure Belli et …. That no Warre may or ought to be undertaken cut of covetousnesse, lust, ambition, cruelty, malice, desire of hurt, revenge, or fer booty: propter praedam enim militare peccatum est; Whence Iohn Baptist, Luke 3. 14. gave this answer to the Souldiers who demanded of him, what shall we doe? Doe violence to no man: neither accuse any man falsly; and be content with your wages. Ne dum sumptus quaeritur, praedo grassetur. Which prooves the Warres of our plundring, pillaging Cavalleers altogether sinnefull and unjust: And that such a Warre onelyonly is just, which is waged for the good and necessary defence of the Common-wealth, by publike Edict or consent; or to regaine some thing, which is unjustly detained or taken away, and cannot otherwise be acquired: or to repell or punish some injury; or to curbe the insolency of wicked men, or preserve good men from their uniust oppressions; which Warres ought onelyonly to be undertaken out of a desire of Peace; as they prove out of Augustine, Gregory, Isidor Hispalensis, and others. In one word, they all accord; That a necessary defensive Warre to repulse an Injury, and to preserve the State, Church, Republike, Freedomes, Lives, Chastities, Estates, Lawes, Liberties, Religion, from p. 48unjust violence, is, and ever hath beene lawfull by the Law of Nature, of Nations; yea, By all Lawes whatsoever, and the very dictate of Reason: And that a necessary defensive Warre, is not properly a Warre, but a meere Defence, against an unlawfull Viol…nce; And therefore must of necessitie be acknowledged lawfull; because directly opposite to, and the onelyonly remedy which God and Nature have giuen men against Tyrannicall and unjust invasions, which are both sinnefull and unlawfull. And so can be no Treason, no Rebellion, no crime at all, though our Princes or Parents be the unjust assail…nts. Of which see more in Hugo Grotius, de Iure Belli, l. 2. c. 1.

I shall closeup the Civillians and Canonists Opinions touching the lawfulnesse of a Defensive Warre, with the words of Albericus Gentilis, Professor of Civill Law in the Vniversitie of Oxford, in Queene Elizabeths Raigne, Who in his learned Booke, De Iure Bel…i & Pacis, Dedicated to the most illustrious Robert Devoreux Earle of Essex; (Father to the Parliaments present Lord Generall:) determines thus,