Fortescue de legibus Angliae, Cap.13.

I conceive that the defence of this Realme doth pro­perly and solely belong unto the King, who is to protect the persons and estates of all his Subjects against for­raigne enemies: Qui ad tutelam corporis, & bonorum ere­ctus est: with which agreeth the Myrror of Justice, pa. 8. in the new print. Estreint de eux un Roy a regner sur eux, & governer le peuple de Dieu, & à maintainer, & defender les persons, & les biens en quiet, per les rules de droit. The King for his assistance herein, that he might the better [Page 2]inable himselfe to defend his Subjects, granted Lands to men of eminency, to be holden of him by Knights service, to some by Esenage, to others by Castle guard, and the like, as he thought sit. Some of these held their Lands by one Knights see, some by two Knights fees, others by three, some by the fourth, some by the hundredth pare of a Knights see, according to the value and quantity of such Lands he was pleased to confer upon him. He that thus held his Lands by one whole Knights fee, was to attend the Prince in his Warres either in person, or by an able man, forty dayes, well and compleatly arrayed for War. He that held his Lands by three Knights fees, was to do the like service with three men. Such as held by that fourth part of one Knights fee, was to attend one day furnished, as aforesaid. And he that held by more fees, more, and by Jesse, lesse time, according to the proporti­on of their Tenures. By these Tenants the Princes Ar­my was in time of War surnished with souldiers for the defence of the Realme.

Fortescue, fol. 108.

But such as held their Lands in Soccage, were not bound to warfare, they were only such as held by Knights service. By this we now see that the Kings auxi­liary helpes for defence of the Realmo, say searrered a­broad in all parts of the Kingdome, and it was a dissicult and intricate businesse, to know how many Tenants the King had, who were thus bound to assist him, and to know every Tenants proportion of Armes which he was to finde, and for what time. Therefore to facilitate this [Page 3]businesse, there was an Officer appointed in every Coun­ty, known by the name of the Feoder, who was to keepe Rolles of all such as held their Lands by Knights service, and by what quantity of Knights fees they were held, and to return his Rolls into the Kings Court, that so he might be informed how many fees he had in each Coun­ty, that so upon all emergent occasions he might require their services.

In former times these Rolles were constantly returned into the Exchequer, there to remaine of Record, where many of them are yet this day to be seene. And in for­mer times this State was so tender in preserving of these Tenures, that in case any were alienated, whereby they might come into Mortmaine (without speciall licence of the King) those Lands so aliened, were forfeited unto the next superiour Lord of the Fee.

When the King had occasion to use his Tenants in the Warres, hee issued out Commissions to certaine men, thereby giving them power to call all such his Tenants before them, and to see them Armed and Arrayed ac­cording to their severall Tenures, by which they held their Lands. But you must remember, that such as held not their Lands by such services, were not to be charged with any Armes, as appeareth by the Statutes of 1 Ed. 3. cap. 5.25. Ed. 3. cap. 8. Fortescue de legibus Angliae, fol. 108.

Now to apply this to the case in hand, A Gentleman holds Lands of the King by 20. Knights Fees, and hee is bound by his Tenure to maintaine twenty men for the Kings service in his Warres for forty dayes: It will be granted that he cannot performe all these services in his owne person, for he cannot personally performe the ser­vice but of one man. (and for his owne person also, the Law giveth him power to substitute an able man in his roome) So then the services of the other nineteene men being defective in him, they must be supplyed by others at his charge, and they also must be such men as hold not by the like Tenures, de suo proprio, i. e. in their owne right; for if they should, then their owne services would be defective for their owne Tenures, and the King should be at a losse for want of their owne personall services: for that man which doth serve with another mans Arms, would save that service of his owne Lands, which hee himselfe doth hold by the like Tenure. And this may be the reason wherefore the person substituted must be such a one as hath not Lands de suo proprio. The Tenures and persons being thus compleated by the Commissioners, they had power to try, drill, and exercise them so, as they might bee made fit for service in defence of the King­dome.

And this is the true use of the Commission of Array, so much talked of. And to conceive that those Commissi­oners had by vertue of their Commission any power to assesse Arms upon any man (other then as aforesaid) were to give an interpretation directly against the Law.

Ass. 42. Pl. 5.7.
Dyer fo. 175. Scrogs Case.

For a Commission to take a man and his goods, hath been by all the Judges agreed to be illegall.

Fortescue de legibus, fol. 108.

And Fortescue, who lived about the time of the ma­king of that Statute, which is extended to warrant the Commission of Array now so much stood upon, and who was chiefe Justice in the next succeeding Kings raigne, saith, that Soccage Land is not bound to Armes, Et contemporaria expositio est optimus interpres: Out of all which premisses it may be concluded, that they who stand so much for the Commission of Array, do not state the question aright, but doe herein, as they in the Case of Episcopacy; who argue only of the name, but not of the thing in question. It will be granted that Commissi­ons of Array have been long in use, but not in that sense those men would have them to be, with a Legislative power in the Commissioners to impose what Armes they think fit upon the persons and estates of men at their plea­sure; for they are only to see that the King be not de­ceived in his Armes, nor the Common-wealth wronged for want of defence and protection by the withdrawing of any services due.

It will be difficult to produce any authenticall warrant to prove that the Kings of this Realme have at any time legally exercised any power of imposing of Armes by [Page 6]their Prerogative, but what Armes they have imposed, have been by vertue of some Act of Parliament (Tenures excepted) And why by Parliament, if the Kings of this Realme had by their Prerogative power to impose, can­not be imagined? That Armes were imposed by Parlia­ment, may be instanced for many hundreds of yeares, both before and since the Conquest In Canutus his time, a Satrapas was charged with eight horses, whereof foure were with Saddles, and foure without Saddles, foure Helmets, foure Jackets, eight Lances, eight Bucklers, foure Swords, and two hundred markes in money. The Thanus Regius was charged with halfe that proportion, but if he were but a common Thane, he was only charged with one Horse, and Armes, and this imposition was by Parliament.

Lamb. Saxon Lawes, fol. 120, 135, 125.

So likewise were the impositions of King Edward the Confessor, and William the Conquerour by Parliament. For the times since the Conquest, it may be instanced in the Statutes of Westminster the first, Anno 3. Ed. 11. ca. 7. Stat. of Winchester, 13. Ed. 1. Stat. 33. H. 8. cap. 5. And by 4. & 5. Phil. & Mar. cap. 2. All former Lawes made for imposing of Armes were repealed, and another kinde of imposing of Armes, viz. According to mens estates, either in Lands or Goods, ordained; and the same yeare, viz. 5. Mar. c. 3. A Statute was made whereby they were compellable at Musters to shew these Armes, and for the Mustering and Trayning of them: but this Statute of 5. Mar. for imposing of Armes, being repealed, it may (and not without some reason) be conceived that the Statute [Page 7]of 5. Mar. ca. 3. for Mustering of them, is now also re­pealed, being only a shadow that waited upon that body. It cannot be denyed, but that the King hath had ayde of the Subject towards his Warres, as the ninth Lamb, and the ninth Fleece, for two yeares, but this was by grant of the Subject, ( Stat. 14. Ed. 3. cap. 20.) not by vertue of any imposition by Commissioners of Array, or by Pre­rogative; And being a gift of the Subject, it may not be produced for a President, to give warrant to Commissi­oners to impose Armes by vertue of the Kings Preroga­tive, as some doe surmise.