Ann. 1628. Arms, yet it fets down when it is to be exercis'd, and how. The King's Commiffion cannot alter the Common Law. 39 H.7. a Protection with a non obftante in a quare impedir, is void. 6 H.7. 4. 11 H. 7. 24. The King's Grant of a Leet to enquire of Rapes, is void: 36 H. 8. Br. 280. fo is his Grant that an Alien fhall be Heir to his Father. 37 H. 8. Br. 310. The King cannot grant Land to be devis'd; Hil.11 Jac. nor that the Universities fhall proceed according to the Civil But a

Mr. Mafon of Lincolns Inn.

the Common for Martial Law alters

Law: It extends to all that join with Soldiers; a Man fhall fuffer Death without Jury or Trial; fmall Offences are made capital. 2 Edm. 3. c. 2. provides, Commiffions of Oyer and Terminer be not granted but for horrible Offences, and to none of ordinary Quality. 13 R. 2. c. 3. regulates the Jurifdiction of the Conftable and Marthal, to extend to fuch Cafes only, as cannot be determin'd by the Common Law; but thefe Offences may be determin'd by the Common Law. We have no War when the Courts of Justice are open. 37 H. 6. 20. if any one call me Traitor, an Appeal will lie before the Constable and Marshal, for that it lies not at the Common Law.

This Commiffion extends to Soldiers and Mariners, and fuch as join with them, and the Commiffioners are to judg who joins with them; the Execution is refer'd to Inftructions, the Punishment Death: I have known à Perfon prefs'd for a Soldier, and refufing to ferve, committed by this Commiflion, who might as well have been hang'd. In the Commiffion in queftion, divers Captains and Commanders are put in as well as Gentlemen of the Country: In the time of Rebellion, the Sheriff hath cuftod. comitat. and all are bound to affift him: In time, Faulconbridge committed many Outrages, and there were 20000 Rebels, and yet no Martial Law, but he was brought to London, and there executed: By Stat. 18 H. 6. 'tis Felony for a man to depart after he hath receiv'd Wages. To what purpofe is the Statute if he may be hang'd by Martial Law, for by that Law he is to be punish'd by Death? The like for Soldiers making away their Arms and Horfes, and yet by 2 E. 6. they are but to be imprifon'd. If objected, that an Army cannot

wait legal Proceedings, I anfwer, If an Army be in 4 Car. the Field, the Common Law allows Martial Law.

12

H7. By two Patents directed to the Earl of Oxford, and reciting, that divers Rebels levied War, &c. he was impower'd to do all things that to the Conftable or Marshal appertain'd, fecundum legem & confuetudinem antea ufitat. The like 15 H. 7. and when an Army is in the Field, the Marshal is to judg according to the Law Martial, 1 E. 3. The Earl of Lancafter fhew'd the Parliament, the Earl his Father was executed contrary to Law, and the Record was produc'd, Placita coram Domino Rege; whereas the Earl being accus'd for raifing Commotions, was fent for by the King and feven Earls, and adjudg'd to be hang'd and beheaded; the Error affign'd was done in time of Peace when the Courts were open, nor was he tried by his Peers: Therefore it was confider'd by King, Lords and Commons, that the Judgment was void; and yet there was then a Rebellion, and the King prefent at the Conviction.

The Common Law takes notice of the Law Martial, Mr. Rolls, but this is merely for neceffity, where the Common afterwards Law cannot take place. This cannot be in time of Ch. Justice Peace; fo the Queftion is, When is time of Peace or War? If the Courts of Westminster be open, it's no time of War, unless where the Sheriff cannot execute the King's Writ, for there 'tis Tempus Belli. If a Subject be taken in Rebellion, he is to be tried by the Common Law: John Mountague Earl of Salisbury, was, 2 H.4. taken in Rebellion, and after he had been a day and a half in Prifon, put to death, without due Trial, and this was aflign'd by his Son for Error, 2 H. 5. But an Alien Enemy cannot be executed by the Common Law. If Martial Law fhould be executed on Soldiers in time of Peace, the King may grant a Commiffion to them that are not Soldiers, or to the General only, and fo they shall be worfe than other Subjects: If an Army be going out of the Kingdom, Martial Law may be us'd, but the Party cannot be executed without a Commiffion of Oyer and Terminer. SH.4. There was a Commiffion to arm and mufter men, and imprifon fuch as refuse, not Execute them: If Martial Law be us'd, the King will

B 2

lofe

Ann. 1628. lofe his Forfeitures of Attainder; for none can by the Common Law be attainted after his Death, but he that is flam in ng Santa?

General.

Rebellion, 7 H. 4. 46.

Mr. Noy, if In H. 3. time, from the Battel of Lewis to the Batterwar At, tel of Evesham, it was a time of War: a Defcent took not away Entry, and a Feofiment was void, unless they were both of one fide, and yet the Courts of Juftice were then open. 24 E. 1. They were Placita Exercitus, and yet then the Chancery was open, and Writs went out. As for the Earl of Lancaster, he drew Forces together, was taken, and a Record being made of his Rebellion, without being call'd to anfwer, the King adjudg'd he fhould be executed and forfeit his Lands; but this was revers'd because the King's Courts were open. 2 Eliz, Commiffions were granted for Martial Law, pro hominibus de exercitu and in exercitu,and fome were executed,but their Heirs revers'd the Judgments, being given in time of Peace. The Commiflion in queftion is not juftifiable, for it extends to Soldiers, Mariners and others that join with them, which is too large; for the Mariners have a Law by themselves: both cannot be under one Law. Our Law allows Martial Law, only when an Enemy is approaching, and when the Army is brought together, not while it is raifing. If objected, that they are not able to execute according to the Common Law, for the Soldiers care not for a Conftable; I anfwer, They must care for the Country and the Sheriff, for his return that the People make refiftance is no good re

Sir Edward
Coke.

turn.

God fend me never to live under the Law of Convenience or Difcretion. Shall the Soldier and Juftice fit on one Bench? non bene conveniunt: When the Courts of Westminster are open, it's a time of Peace, for then a Commiflion of Oyer and Terminer may be had, and Martial Law cannot be then executed: Drake flew Doughty beyond Sea, Doughty's Brother defir'd an Appeal in the Conftable and Marthals Court; refolv'd by Wray and the other Judges he may fue there, 5 H. 4. Willmon's Cafe, the Conftable and Marshal proceeding not according to their antient Power, a Prohibition was granted.

Dr

1

the Commons

Dr. Laud, when Bishop of London (who in his Diary 5 Car. faith, that the laft Parliament had labour'd his ruin) Ann.1629. pend an Answer (which was afterwards found all of his own Hand writing) to the Remonftrance of the then laft Houfe of Commons; which Anfwer was publifh'd in the King's Name, and was to this effect, viz. That his Majefty was not bound to give an account The King's of his Actions to any but God only; yet to take off all ner to Fears and Jealoufys, he thought fit to declare the Rea- Remonfons why he had call'd in that Remonftrance, which he france believes was fram'd with good Intentions, but by a mifguided Zeal. The Remonftrance fears Innovations by Popery, but he would have his Subjects call to mind what Difficulties and Dangers he endur'd not many years fince for Religion's fake; That he is ftill, the fame, his Religion as precious to him as ever, and he will admit of no Innovation therein: That he is leaft in fault that the expected effects follow'd not upon the Petition deliver'd at Oxford, for Supply not being afforded him, that caus'd the ftay of legal Proceedings; nor is there near fuch an Increase of Papifts, or fuch firange an odious Toleration as is charg'd: The Commiffion fo Rajon for much complain'd of is utterly mistaken, for it difpenfes not with any Profecution or Penalty, but was advis'd to prevent the Abuse and Connivance of inferior Minifters. The Growth of the Arminian Faction, call'd a cunning way to bring in Popery, is wrongfully charg'd upon him and his Government, he not being to be taught by a Parliament Remonftrance, that any Opinion or Faction fhould prevail fo far without his Knowledg. Great wrong is done therein to two eminent Prelates, accus'd without any fhadow of Truth; and Dr.Laud Sp fhould they attempt any Innovation, he would not and Dr. of London, ftay for the Commons Remonftrance. That the People Neale Bp of are made believe Orthodox Books are reftrain'd; Winchefter. whereas those the Remonftrance calls Orthodox, have. taken an unfufferable liberty in Printing, tho his Proclamation commanded a Reftraint on both fides. For good Preachers the People fhall never want them: The Preferments are his, and he will be Judg of Defert, and not be taught by a Remonftrance. Ireland, in Ireland. cafe of Religion, is not worse than Queen Elizabeth left if, and for other Affairs perhaps better than he

B 3

found

Toleration.

Ann.1629. found it. And the Report, That Monafteries and Nunneries are erected in Dublin and elsewhere, he takes as a great and caufelefs difparagement of his Government. There is no undermining of Religion at home, unless by those who seem moft to labour for it in a factious way, and God's Judgments are beft prevented by a Remonftrance of the Amendment of our Lives.

Rumors of a

The People being difcontented at the Diffolution of the laft Parliament, and using Difcourfes of the neProclamation ceflity of another, the King iffued out a Proclamation against falje for fuppreffing falfe Rumours, as if the feditious ProParliament. pofitions in the late Houfe of Commons tumultuously taken up by fome few, after his Majefty had commanded an Adjournment, had been the Vote of the whole Houfe, whereby Trade was disturb'd, and the Merchants difcourag'd; he declares the Raifers of falfe Reports fhall be punish'd, thofe that go on with their Trades encourag'd, and that he will be fatisfied with the Duties receiv'd by the King his Father, which he neither can nor will difpenfe withal: That he hath lov'd the ufe of Parliaments; but the late abufe, having at prefent driven him unwillingly out of that courfe, he forbids any to prescribe to him a time for Parliaments, the calling, continuing and diffolving whereof is in his Power; and he will meet in Parlia ments, when the Caufers of this Interruption fhall be punifh'd, and his Intents and Actions better underItood.

Duke of Ro The Duke of Rohan, the Head of the Proteftant hans Letter Party in France (not knowing the Parliament was difto the King. folv'd) by Letter, dated March 12. thus implor'd the King's Aid, viz. That the lofs of Rochel hath redoubled in their Enemies the hopes of their ruin, but they have not loft the Courage or Affection of oppofing them: That the most powerful means God hath rais'd to their Churches, is the Aid they have receiv'd and expect from his Majefty: That they had once laid down their Arms, but took them up again at his Majefty's Defire, and upon his Promifes, and have not been induc'd to any breach of thofe Oaths, never to hearken to any Treaty but with his Majefty's Confent, who is the Defender of that Faith they profels, and

hath