Question. NOw in our extreame d [...]stractions, when forraigne forces threaten, and probably are invited, and a malignant and Pop [...]sts party at home offended? The Devill hath cast a bone, and rais'd a contestation between the King and Parliament touching the Militia. His Majestic claims the disposing of it to be in Him by the right of Law; The Parliament saith, Rebus sic stantibus, and no­lenti Rege, the ordering of it is in them?

Answer. VVHich Question, may receive its solution by this distinction. That there is in Laws an equitable, and a litterall sence. His Majesty (let it be granted) is intrusted by Law with the Militia, but it's for the good and preservation of the Republick, against Forraign Invasions or domestick rebellions For it cannot be supposed that the Parliament would ever by Law intrust the King with the Militia against themselves, or the Common wealth, that intrusts them to provide for their weal, not for their wo. So that when there is certain appearance or grounded suspition, that the Letter of the Law shall be improved against the equitie of it (that is, the publick good, whether of the body reall or representative) then the Commander going against its equity, gives liberty to the Commanded to refuse obedience to the Letter: for the Law taken abstract from its originall reason and end, is made a shell without a kernell, a shadow without a substance, and a body without a soul. It is the execution of Laws according to their equity and reason, which (as I may say) is the spirit that gives life to Authority the Letter kils.

Nor need this equity be expressed in the Law, being so naturally implyed and supposed in all Laws that are not meerly Imperiall, from that analogie which all bodies Politick hold with the Naturalls whence all government and Governours borrow a proportionable respect; And therefore when the Militia of an Army is committed to the Generall, it is not with any expresse condition, that he shall not turn the mouths of his Cannons against his own Souldiers, for that is so naturally and necessarily implyed, that its needlesse to be ex­pressed, insomuch as if he did attempt or command such a thing against the nature of his trust and place, it did ipso facto estate the Army in a right of disobedience, except we think that obedience binds Men to cut their own throats, or at least their companions.

And indeed if this distinction be not allowed, then the legall and mixt Monarchy is the greatest Tyranny, for if Laws invest the King in an absolute power, and the Letter be not controled by the equity, then whereas other Kings that are absolute Monarchs and rule by will, and not by Law, are Tyrants perforce. Those that rule by Law and not by will, have hereby a Tyranny confer'd upon them legally, and so the very end of Laws, which is to give bounds and limits to the exorbitant wils of Princes, is by the Laws themselves disappoint­ed, for they hereby give corroboration (and much more Justification) to an arbitrary Tyranny, by making it legall, not assumed; which Laws are ordained to crosse not countenance: and therefore is the letter (where it seems absolute) alwayes to receive qualification from the equity, else the foresaid absurdity must follow.

It is confessed by all rationall men, that the Parliament hath a power to annull a Law, and to make a new Law, and to declare a Law, but known Laws in force and unrepealed by them, are a rule as long as they so remain for all the Commons of England whereby to walk; and upon ra [...]ionall grounds is conceived to be binding to the very Parliament themselves as well as others. And though by their legisla­tive power they have Authority to make new Laws, yet no free man of England is to take notice (or can he) of what they intend till they declare it: neither can they, as is conceived, justly punish any man for walking closely to the known and declared Law, though it crosse some pretended Priviledge of theirs, remaining onely in their own breasts.

For where there is no Law declared, there can be no transgression; therefore it is verie requisite that the Parliament would declare their Priviledges to the whole Commons of England, that so no man may through Jgnorance (by the Parl [...]aments default) run cause­lesly into the hazard of the lesse of their lives, liberties, or estates: for here it is acknowledged by themselves, that their power is limit­ed by those that be trust them; and that they are not to do what they list, but what they ought, namely, to provide for the peoples weal, and not for their wo: so that unknown Priviledges are as dangerous, as unlimited Prerogatives, being both of them secret snares, especi­ally for the best affected people.

It is the greatest hazard and danger that can be run unto, to dis [...]rt the onely known and declared rule; the laying aside whereof, brings in nothing but will and power, lust and strength, and so the strongest to carrie all away; for it is the known, established, declared, and unrepealed Law, that tels all the free men of England, that the Knights and Burgesses chosen according to Law, and sent to make up the Parliament, are those that all the Commons of England (who send and choose them) are to obey.

But take away this declared Law, and where will you find the rule of Obedience? and if there be no rule of obedience, then it must necessarily follow, that if a greater and stronger number come to a Parliament sitting, and tell them that they are more and stronger then themselves, and therefore they shall not make Laws for them, but they will rather make Laws for them, must they not needs give place? undoubtedly they must.

Yea take away the declared, unrepealed Law, and then where is meum & tuum, and libertie, and propertie? But you will say, the Law declared, binds the people, but is no rule for a Parliament sitting, who are not to walk by a known Law. It is answered: It cannot be Imagined that ever the people would be so sottish, as to give such a power to those whom they choose for their Servants; for this were to give them a power to provide for their wo, but not for their weal, which is contrary to their own foregoing maxime; therefore doubt­lesse that man is upon the most solid and firm ground, that hath both the letter and equity of a known declared, and unrepealed Law on his side, though his practise do crosse some pretended Priviledge of Parliament.

And whereas by an Act made this present Parliament, Anno 17 Caroli Regis, intituled,

An Act for Regulating of the Privie Councell, and for taking away the Court, commonly called, The Star-Chamber.

It is there declared, that the proceedings, Censures, and Decrees of the Star Chamber, have by experience been found to be an into­lerable burthen to the Subject, and the means to introduce an Arbitrary power and Government, and that the Councell-Table have ad­ventured to determine of the estates, and liberties of the Subject, contrarie to the Law of the Land, and the rights and priviledges of the Subject. Which Laws are there recived, as first M [...]gna Carta, and the 5 Ed. 3. 9. and 25 Ed 3. 4. and 28 Ed. 3. 3. the last of which saith that it is accorded, assented, and established, that none shall be taken by Petition, or suggestion made to the King or His Councell, unlesse it be by Indictment, or presentment of good and lawfull people of the same neighbourhood, where such deeds be done, in due manner, o [...] by Processe made by Writ originall at the Common Law, and that none be put out of his franchise or Free-hold, unlesse he be duly brought in, to answer, and fore-judged of the same, by the course of the Law; and by another Statute made in the 42 Ed. 3. 3. it is there inacted, that no man be put to answer without presentment before Justices, or matter of Record, or by due Processe and Writ originall according to the old Law of the Land.

Therefore for the Subjects good and welfare in future time, it is inacted, that from henceforth no Court, Councell, or place of Judica­ture shall be erected, ordained, constituted, or appointed within this Realm of England, or dominion of Wales, which shall have, use, or exercise the same, or the like jurisdiction, as is, or hath been used, practised, or exercised in the said Court of Star-Chamber.

From the equity and letter of which Law, it is desired that our learned Lawyers would answer these insuing Quaeries.

First, whether the letter and equity of this Law, do not bind the very Parliament themselves during the time of their sitting, in the like cases here expressed to the same rules here laid down? Which if it should be denied. Then secondly, whether the Parliament it self, when it is sitting, be not bound to the observation of the letter and equity of this Law, when they have to do with free-men, that in all their actions and expressions have declared faithfulnesse to the Common-wealth? And if this be denied, Then

Thirdly, whether ever God made any man lawlesse? or whether ever the Common-wealth when they choose the Parliament, give them a lawles unlimited power, and at their pleasure to walk contrary to their own Laws & Ordinances before they have repealed them.

Fourthly, whether it be according to Law, Justice, or equity, for the Parliament to imprison or punish a man for doing what they command him, and by oath injoyn him?

Fiftly, whether it be legall, just, or equall, that when free-men do endeavour according to their duty, oath and Protestation, to give in information to the Parliament of Treason acted and done by Sir John Lenthall, against the State and Kingdom, and long since com­municated to severall Members of the House of Commons, but by them concealed and smothered; And now by Gods providence brought upon the stage again, and during the time that Inquisition is made of it before the Committee of Examination, before any legall charge be fixed upon Sir John Lenthall, or he required to make any answer or defence, that he shall be present to out-face, discourage, and abuse the Informers and witnesses in the face of the Committee, without any check or controll from them?

And sometimes while they are sitting about the Examination of his Treason, that he shall sit down beside them with his hat on, as if he were one of them, and that he shall injoy from the Committee ten times more favour and respect then the just, honest, and legall Infor­mers against him; who by some of the Committee themselves while they are sitting, are threatned, jeered, nicknamed, and otherwayes most shamefully abused.

Yea and the friends of the Informers for the State are kept without doors, and the friends of the accused admitted to come in alwaies without controll; and during the Examination of the Information, that the Committee shall refuse to remove the Informers out of Sir John Lenthals custody of Kings Bench to another prison, although they have been truly informed, that he hath set Instruments on work to murther them, and also importuned to remove them.

Sixtly, whether it be not most agreeable to Law, Justice, and equitie, that seeing Sir John Lenthall having so many friends in the House concerned in the busines, that he should not rather be tried by the same Councell of Warre in London, where Sir John Hotha [...] and his Son were, then at the Parliament, his principall crime being against the Law Marshall as theirs was.