The Sovereign Power of Parliaments and Kingdoms Part 3, Discourse 1 (2 of 2)

The Sovereign Power of Parliaments and Kingdoms Part 3 · Discourse 1 (2 of 2)

p. 26Secondly, the Lawfulneſſe and juſtneſſe of the Barons Warres in Defence of Magna Charta, with other their Hereditary Rights and Liberties, appeares moſt evidently, by the reſolution of all thoſe Parliaments ſummoned by King. Henry the 3^d. Edward the 1⁰ 2. 3. Richard the 2^d. and other our ſucceeding Kings; which have many times, even by00See part 1. p. 19. 20. force of Armes, or Menaces; and ſometimes by faire termes, cauſed theſe Kings by new Acts of Parliament to ratifie Magnae Charta, the Charter of the Foreſt, with other Fundamentall Liberties, thus forcibly extorted from King Iohn at firſt; and conſtrained them to confirme him with their Oathes and ſolemne publicke ppConfirm. Chartarum. 25. E. 1. c. 4.Excommunications, to be publiſhed by the Biſhops in their Dio…eſſe 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 ancaſters 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 or 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 preſerve, 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 perſidious 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:qqMath. Paris Hiſt. p. 371. to 385. Daniel, p. 153. 154. See Holinſſe, 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 oppreſſed 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 likewiſe of Lawes and Liberties; 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 Strangers. To which Peter of Wincheſter replyed: That the King might lawfully call in what ſtrangers be would, for the Defence of his Kingdome and Crowne, and likwiſe 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, even 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 drive him, with his wicked Counſellours, out of the Realme, and conſult of chuſing them p. 28a new King. After theſe, and ſome other like paſſages, 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 he would amend all things 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 ſlew 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 conclnded; namely, that I ſhould be without this homage, and abſolved 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 endeavoured 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 confederaciei nor will I invoke their aide, Vnleſſe, which God forbid, inopinata & immutabilis, fuero compulſus neceſſitate; I ſhall be compelied 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 he 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 enjured 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 turtia ſicut heri.

Falix 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 thereby 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 Northwales; 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 ſlew many of his Enemies by an Ambuſcado, 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 ſpoiled, 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 Ireland; profeſſed that he was no Traytor; that his warre being but defenſive, was juſt; immutabiliter affirmant, quod li…uit ſibi de jure quod ſuum crat repetere, & poſſe Regis & Conſiliorum ſuorum, modis omnibus quibus poterat, infirmare.

rrPage 966. 967. Daniel, p. 178.William Riſhanger 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 perſon 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 frequenter of divine Offices, conſtant in word, ſevere in countenance, moſt confiding in the prayers of Religious perſons, alwayes very reſpectfull to Eccleſiaſticall 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 eſtabliſhed, but by them materiall ſword; and conſtantly averring; 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 JUSTICE 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 beare Armes againſt the King his Lord, nor againſt his Sonne Prince Edward, NISI DEFENDO; but onelyonly 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. 3263. 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, theuuMat. Par. p. 952. 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 Co…djutor 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 demonſtrates their publicke opinions and judgements of the lawfulneſſe, 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. Holi…ſh. Graf. Speed, Fab Stow and others in his life: Fox Acts and Monuments, Edw. ult vol. 1. p. 480. 481.In the third yeare of King Edward the 2^d, this king revoking his great Mynion Piers Gaveſton, 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 certain…ly 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 he liberties of the Church and Realme, ſent an honourable meſſage to the King, to deliver Piers into their hands, or baniſh him, for the preſervation of the peace, Treaſure and weale of the Kingdome; this wilfull King denies their juſt requeſt; whereupon the Lords thus contemned and deluded, raiſed 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, BVT DESERVED HIS ROYAL 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 harboring, councelling or ayding hi…ere after his returne: The ſecond on the Barons part, in theſe words: It is provided by the King, and by the Archbiſhops, Biſhops, Abbots, Priors, Earles, Bar…s and Commons, of the Realme, aſſembled according p. 33to our Command, and unanimouſly aſſented and accorded, that none of what eſtate or condition ſoever he be, ſhall in time to come be appealed or challenged, for the apprehending, deteining, or death of Peirsde Gaveston, nor ſhall for the ſaid death be apprehended, nor impriſoned, impeached, moleſted, 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 Judges of the Kings Bench, commanding that this grant and concord ſhall be firme and stable in all its points, and that every of them ſhould be held, and kept in perpetuitie; to which end he commands them to cauſe this act to be there inrolled, and firmely 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 twozzWalſirg. 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, of 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 (formiſ-councelling the king, oppreſſing the people by injuſtice, a viſing him to levie warre upon his Subjects, making evill Iudges and other Officers to the hurt of the King and Kingdome, …ng…oſſing the Kings eare, and uſurping 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 penſers 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 John 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 good 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 Spenſ…rs 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, wouldbbDy…. 50. pl. 4 …. 6 …. 12. Stamford. f. 2. not have pardoned theſe tranſcendent Capitall 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 thought 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 Exiled, 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 procured 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 Robert Bald…cke and Edm…nd 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, Rob…rt 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 France, 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 Weſtmiuſter, 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,Nota. and with the Queene, In ayde of them to purſue their ſaid enemies, in which purſuite the King his Father was taken and put in ward, and yet remaineth in ward, ſhall not be molested impeached or grieved in perſon or goods, in the kings Court, or other Court, for the purſuite of the ſaid king, taking and with holding of his body, nor purſuite 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 any 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 ad…ulled 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 detained 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, of puniſhment, or proſecution whatſoever againſt them. Which conſideration makes 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 Realme, 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 …dward the 2^d, taking him priſoner: 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. A…gl p. 213. See Holinſh. Speed. Truſſell in Ri…. … and Cambdens Bri…d, of the Britiſh Iſlands, p. 2…4. firſt yeare of king Richard the 2^d. John Mercer a Scot, with a Navie of Spaniſh, Scottiſh & French ſhips much infeſted the Marchants and Coaſts of England taking 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 grieving 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 M…rcer 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 Philpo… 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 VELREGNO 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 frteing 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 out 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.

InccWalſia. 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 their treachery, to provide for his owne ſafety, wiſely withdrew himſelfe, and poſted to his Caſtle at 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, Gra…t. Hoti…. Howes, Traſſel. in 10. & 11 R. 2. 11 R 2…. 1. …07. 10^th yeare of King Richard the ſecond this unconſtant king being inſtigated by Michael de la Pole, Robert V…ere 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 gee 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 ſaid 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, THOU HAST SLAINE ALL THE FAITHFVLL FRIENDS THOU 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 ambuſcadoes 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 might 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 p…rchance much blood 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 peceably, and to tell him the reaſon why yoy 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. The 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, with 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 timed feated the Forces of the Duke of Ireland, raiſed privately by the Kings Command to ſurpriſe them. The Parliament comming on 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 great 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 rove 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 Gloceſter Earles of Arundell and W…rwicke 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 Ordaine and Stabliſh, that the ſaid Duke of Gloceſter, Earles of Darby, Arundell, Warwicke 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 …ovable 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 furni…hed 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 January 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, Barrons 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 attaine 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 it: but in 21 R. 2. the King havingffSee Walſingh, Hol…ſh. Graft. Speed, Sto…, Tuſſell, in 21. R 2 & 21 R c. 16: 17 …8. 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 o… 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 feoffees 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 Parliament 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 that raiſeth the people and riſeth againſt the King to make warre within his Realme; and of that 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 all the Realme; much more muſt our Parliaments preſent defenſive warre againſt his Majeſties ill 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 purſuit 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 Coronation 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 perſidious, 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 Jure Be…li lib. 2 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.

InggGrofton, p. 625. 626 627 628. 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 guided 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 do… 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 800. others were ſlaine on the kings part, by the Duke of Yorke, and his companions, and the king… a manner defeate. 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 PUBLIKE 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, Grift… Fabian, Caxton, Holinſhed Stow, Speed, Anno 37. 38. & 39. R 6. Duke, and 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 …y 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 …ords and liege People of the King; and that they might finally deſtroy the laid lawfull Lords, and Liege People, and their Iſſues and Heires for ever (as now the Kings ill Counſellors, 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 Le…ter of Sir Iohn Brooks, giving adviſe to thus purpoſe to his Majeſtie:) and this Aſſembl… 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.

TheiiGrafton, p. 847. 848 Hal. 3. R. 3. f. 55. 56. See Heliſhed, Stew, Speed, & Barons Henry 7. Earle of Richmund, afterward King Henry the ſeventh, taking up armes againſt Richard the third, (a lawfull King, defacto, being crowned by Parliament; but an Vſurper and bloody …yrant 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 tamping 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, ſlew 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 Realme 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 fundamentall 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, Chattels.

What our Princes and State have thought of the lawfulneſſe of neceſſary Defenſive p. 46ſive Warres 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. Grimſton. Hiſt. of the Netherlands, l. to. p. 611. 612. &c. and Imperiall Hiſt. p. 730. to 856. Queene Elizabeth and King James 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 James, 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 Orange, (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 publike kkSee the acts of Pacification and Oblivion in both thoſe Kingdomes.Acts of Parliament, the one in England, the other in Scotland, declaring, the Scots late taking up Armes againſt him and his evill Counſellors, in defence of their Religion, Lawes, 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 threatned 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. 329. 331. Anſwer to the 19. Propoſitions of both Houſes, Iune 3. 1642. Confeſſeth, and calleth God to witneſſe: That all the Rights of his Crowne are veſted in him for his Subjects ſake: That the Prince 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 bound (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 preſerve 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 ſ…fficient neceſſary power, to prevent and reſtraine the power of Tyranny; which being once in armes cannot bee reſtraned, and prevented, repulſed, with Petitions, Declarations, Lawes, Ordinances, or any Paper Bulwarkes and Fortifications, or other ſuch probable or poſſible meanes within the Parliaments power,mmAlber. Gentil. de Jure 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, iniuſt, 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 Ecl Anto. Corteſ. Reper. in Abatem tit. Bellum; Iacob. Spi…lg & 10. Calvin. Lexi. Iurid. Tit. Bel. Mar… Lauden de E…l. Tract. Alber. Gent. de jure bell. Petrinus Belli de Re milita. & b…l…o trast. De Iure b…lli B…lg. Hugae, 1…99. Hugo Grot. de Iu…e Belli et Pa…is.That no Warre may or ought to be undertaken cut of covetouſneſſe, luſt, ambition, cruelty, malice, deſire of hurt, revenge, or for booty: propter praedam enim militare peccatum eſt; Whence Joh; 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 Nation; yea, By all Lawes whatſoever, and the very dictate of Reaſon: And that a…n…ceſſary defenſive Warre is not properly a Warre, but a meere Defence, againſt an unlawfull Violence; And ther…fore m…ſt of neceſſitie be acknowledge lawfull; becauſe directly oppoſite to, and the onelyonly remedy which G…d and Nature have giuen men againſt T…rannicall and unjuſt invaſions, which are both ſ…n…full and unlawfull. And ſo can be no Treaſon, no Rebellion, no crime at all, thou… our Princes or Parents be the unjuſt aſſail…nts. Of which ſee more in Hugo Gro…ius, de Iure Belli, l. 2. c. 1.

I ſhall cloſe up the Civillians and C…no…s Opinions touching the lawfulneſſe of a Defenſive Warre, with the words o… A…beric… …entilis, Profeſſor of Civill Law in the Vniverſitie of Oxford, in Queene Elizabeths Raigne, Who in his learned Booke, De Jure Belli & Pacis, Dedicated to the moſt illuſtrious Robert Devoreux Earle of Eſſex; (Father to the Parliaments preſent Lord Generall:) determines thus, Lib. 1. ca… 13 pag. 92. &c. Although, I ſay, there be no cauſe of warre from nature, yet there are cauſes for which we undertake warre by the conduct of nature; as is the aaCle. 2. de Sent.cauſe of Defence, and when warre is undertaken, becauſe ſomething is denied to to be granted, which nature it ſelfe affords, and therefore becauſe the Law of nature is violated, Warre is undertaken. We ſay there is a three fold Defence, one Neceſſary, another Profitable, a third Honeſt; yet wee ſhall deeme them all Neceſſary. bbBal 3. conſ. 458. & S. conſ. 405He who defends himſelfe, is ſaid to be neceſſitated, neither will Baldus have us diſtinguiſh whether he defend himſelfe, his goods, or thoſe under his charge, whether neere, or remote; His defence is neceſſary, and done for neceſſary defence, againſt whom an armed enemy comes,ccClar: §. Hemicidium. and his againſt whom an enemy prepares himſelfe: and to ſuch a one the ſameddBal. ad. d. l. 32. loc. Ioſ. Decl. l. ut Vim Baldus truly teacheth, ayde is due by compact, whom others likewiſe approveeeAp. Mitr. This warre we may ſay, was anciently undertaken againſt Mithridates, and againſt his great pre…aations. Neither ought wiſe men to expect, till he had profeſſed himſelfe an enemy, but to looke more into his deeds, then words: Thus whiles we ſay neceſſity, we ſpeake not properly, but we underſtand, that neceſſity which is not rare in humane affaires, and hath wont to bee called neede: which yet preciſely is not that true neceſſity, &c.ffPhil. de Principe. It is a moſt unjuſt conflict, where the one ſide being agent, the other is onelyonly patient. There is a juſt defence, and ſlaying, although the ſlayer might flee without danger and ſo ſave himſelfe, whether the ſlayer who defends himſelfe be of that condition, that it would be a diſgrace to him to flee, or whether it would be no diſgrace.ggClra. §. bomicidium. Which opinions are received in the cauſes of private men; and to mee are much more approved in publike cauſes.hhL 3. de Iuſt. l. 4 ad le. Aq. Ceph. corſ. 721 Defence even in Bruites is a Law of nature:iiCic. 2. Iuci. 12. fa. 3. it is perſwaded and conſtituted in us, not by opinion, but by a certaine imbred faculty: and it is a neceſſary Law; for what is there (ſaith Cicero) that can be done againſt force, without force? This is the moſt approved above all Lawes. kkc. 3. de ſe exc. c. 18 de Homicid.All Lawes, all Rights permit to repell force with force. llAmmia 23There is one Law and that perpetuall, to defend ſafety by all meanes. mmCic. pro Milo,All mean…s are honeſt of preſerving ſafety: this, reaſon to the Lea…ued, neceſſity to B…rbarians, cuſt me to Nat…ons, nature it ſelfe to wilde Beaſts, hath preſcribed; and this is no written, but borne, or native Law. Likewiſe, to defend our Eſtates, is a neceſſary defence, and this is a juſt cauſe of defending, if wee bee aſſaulted by warre, though wee our ſelves have demerited the warre: which thing others, and Paulus Caeſtrenſis have taught. And it will follow, p. 49and adde this reaſon; becauſe the Law or Force of warre is not ended by obtaining the things firſt demanded; but walkes according to the conquerers pleaſure. nnAug 19. con Fav.Who is content to repay ſo much revenge onelyonly as he hath received wrong? ſaith Auguſtine, and all know it. This arbitrary power all not ſubdued may juſtly decline, and therefore defend themſelves againſt it with Armes. Witneſſes,ooJaſon. l. 15. l. de in re. Iudges who are enemies are repelled, although they againſt whom they proceed gave the cauſe of the enmity.ppCon. reg. peccatum. p. 2. §. 9. To one in Armes he gives all things w…o denies juſt things: ſaid Caeſar. Neither doe we heare make queſtion of that blameleſſe moderation, where there is no ſuperior. Theſe things therefore are avoyded: and therefore the cauſe of Romulus ſhall be ſaid right to me, who defended himſelfe by war againſt the invading Sabines, albeit he had given them cauſe of warre and offence, by the rape of their women. qqBed… 5 de Rep. 5.The force of neceſſity is ſo great, when men are pr…ſſed with Armes, that thoſe things which are unjuſt may ſeeme moſt juſt; as Bodin well,rrLivie l. 8. warre is juſt, to whom it is neceſſary; & piae arma, quibus nulla niſi in armis relinquitur ſpes: and Armes are pious to thoſe to whom no hope is left but in Armes. Extreame neceſſity is exempted from all Law. And yet I reſtraine not the preſent definition, to extreame neceſſity, or take extreame according to the condition of mens affaires: for be it ſo, let it be no neceſſitie, which may be no neceſſity; Romulus might have avoyded warre by reſtoring the raviſhed women; yet he might likewiſe defend himſelfe againſt the enemies even ſoone after marching againſt him. I ſtay not in this definition: for that is a queſtion belonging to Citizens.**Coſtr. l. 1. de Iuſt. He who being baniſhed may be hurt without danger, yet he may defend himſelfe.