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<DATE>10-13-10</DATE>
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<NAME>John Latta</NAME>
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<VID>162574</VID>
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<DIV1 TYPE="treatise">
<PB REF="1" MS="y">
<HEAD>In the 150 <HI>page</HI> of the Book called, An exact collection of the <HI>Parliaments</HI> Remon&s;trances, Decla|rations, &amp;c. publi&s;hed by &s;peciall Order of the Hou&s;e of <HI>Commons,</HI> March 24, 1642. We find there a Que&s;tion an&s;wered fit for all men to take notice of in the&s;e times.</HEAD>
<P><HI>Que&s;tion.</HI> NOw in our extreame di&s;tractions, when forraigne forces threaten, and probably are invited, and a malignant and Pop<GAP DESC="illegible" REASON="missing" EXTENT="1 letter">&s;h party at home offended? The Devill hath ca&s;t a bone, and rais'd a conte&s;tation between the King and Parliament touching the <HI>Militia.</HI> His Maje&s;tie claims the di&s;po&s;ing of it to be in Him by the right of Law; The Parliament &s;aith, <HI>Rebus &s;ic &s;tantibus,</HI> and <HI>no|lenti Rege,</HI> the ordering of it is in them?</P>
<P><HI>An&s;wer.</HI> VVHich Que&s;tion, may receive its &s;olution by this di&s;tinction. That there is in Laws an equitable, and a litterall &s;ence. His Maje&s;ty (let it be granted) is intru&s;ted by Law with the <HI>Militia,</HI> but it's for the good and pre&s;ervation of the Republick, again&s;t Forraign inva&s;ions or dome&s;tick rebellions. For it cannot be &s;uppo&s;ed that the <HI>Parliament</HI> would ever by Law intru&s;t the King with the <HI>Militia</HI> again&s;t them&s;elves, or the Common-wealth, that intru&s;ts them to provide for their weal, not for their wo. So that when there is certain appearance or grounded &s;u&s;pition, that the Letter of the Law &s;hall be improved again&s;t the <HI>equitie</HI> of it (that is, the publick good, whether of the body reall or repre&s;entative) then the Commander going again&s;t its <HI>equity,</HI> gives liberty to the Commanded to refu&s;e <HI>obedience</HI> to the Letter: for the Law taken ab&s;tract from its originall rea&s;on and end, is made a &s;hell without a kernell, a &s;hadow without a &s;ub&s;tance, and a body without a &s;oul. It is the execution of Laws according to their <HI>equity</HI> and <HI>rea&s;on,</HI> which (as I may &s;ay) is the &s;pirit that gives life to Authority the Letter kils.</P>
<P>Nor need this <HI>equity</HI> be expre&s;&s;ed in the Law, being &s;o naturally implyed and &s;uppo&s;ed in all Laws that are not meerly Imperiall, from that analogie which all bodies Politick hold with the Naturall; whence all government and Governours borrow a proportionable re&s;pect; And therefore when the <HI>Militia</HI> of an Army is committed to the Generall, it is not with any expre&s;&s;e condition, that he &s;hall not turn the mouths of his Cannons again&s;t his own Souldiers, for that is &s;o naturally and nece&s;&s;arily implyed, that its needle&s;&s;e to be ex|pre&s;&s;ed, in&s;omuch as if he did attempt or command &s;uch a thing again&s;t the nature of his tru&s;t and place, it did <HI>ip&s;o facto</HI> e&s;tate the Army in a right of di&s;obedience, except we think that obedience binds Men to cut their own throats, or at lea&s;t their companions.</P>
<P>And indeed if this di&s;tinction be not allowed, then the legall and mixt <HI>Monarchy</HI> is the greate&s;t <HI>Tyranny,</HI> for if Laws inve&s;t the King in an ab&s;olute power, and the Letter be not controled by the equity, then whereas other Kings that are ab&s;olute <HI>Monarchs</HI> and rule by will, and not by Law, are <HI>Tyrants</HI> perforce Tho&s;e that rule by Law and not by will, have hereby a <HI>Tyranny</HI> confer'd upon them legally, and &s;o the very end of Laws, which is to give bounds and limits to the exorbitant wils of Princes, is by the Laws them&s;elves di&s;appoint|ed, for they hereby give corroboration (and much more Ju&s;tification) to an arbitrary <HI>Tyranny,</HI> by making it legall, not a&s;&s;umed; which Laws are ordained to cro&s;&s;e not countenance: and therefore is the letter (where it &s;eems ab&s;olute) alwayes to receive qualification from the equity, el&s;e the fore&s;aid ab&s;urdity mu&s;t follow.</P>
<P>It is confe&s;&s;ed by all rationall men, that the <HI>Parliament</HI> 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 &s;o remain for all the <HI>Commons</HI> of <HI>England</HI> whereby to walk; and upon rationall grounds is conceived to be binding to the very <HI>Parliament</HI> them&s;elves as well as others. And though by their legi&s;la|tive power they have Authority to make new Laws, yet no free man of <HI>England</HI> is to take notice (or can he) of what they intend till they declare it: neither can they, as is conceived, ju&s;tly puni&s;h any man for walking clo&s;ely to the known and declared Law, though it cro&s;&s;e &s;ome pretended Priviledge of theirs, remaining onely in their own brea&s;ts.</P>
<P>For where there is no Law declared, there can be no tran&s;gre&s;&s;ion; therefore it is verie requi&s;ite that the <HI>Parliament</HI> would declare their Priviledges to the whole <HI>Commons</HI> of <HI>England,</HI> that &s;o no man may through Ignorance (by the <HI>Parl<GAP DESC="illegible" REASON="missing" EXTENT="1 letter">aments</HI> default run cau&s;e|le&s;ly into the hazard of the lo&s;&s;e of their lives, liberties, or e&s;tates: for here it is acknowledged by them&s;elves, that their power is limit|ed by tho&s;e that betru&s;t them; and that they are not to do what they li&s;t, but what they ought, namely, to provide for the peoples weal, and not for their wo: &s;o that unknown Priviledges are as dangerous, as unlimited Prerogatives, being both of them &s;ecret &s;nares, e&s;peci|ally for the be&s;t affected people.</P>
<P>It is the greate&s;t hazard and danger that can be run unto, to di&s;art the onely knomn and declared rule; the laying a&s;ide wherof, brings in nothing but will and power, lu&s;t and &s;trength, and &s;o the &s;tronge&s;t to carrie all away; for it is the known, e&s;tabli&s;hed, declared, and unrepealed Law, that tels all the free men of <HI>England,</HI> that the Knights and Burge&s;&s;es cho&s;en according to Law, and &s;ent to make up the <HI>Parliament,</HI> are tho&s;e that all the <HI>Commons</HI> of <HI>England</HI> (who &s;end and choo&s;e them) are to obey.</P>
<P>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 mu&s;t nece&s;&s;arily follow, that if a greater and &s;tronger number come to a Parliament &s;itting, and tell them that they are more and &s;tronger then them&s;elves, and therefore they &s;hall not make Laws for them, but they will rather make Laws for them, mu&s;t they not needs give place? undoubtedly they mu&s;t.</P>
<P>Yea take away the declared, unrepealed Law, and then where is <HI>meum &amp; tuum,</HI> and libertie, and propertie? But you will &s;ay, the Law declared, binds the people, but is no rule for a Parliament &s;itting, who are not to walk by a known Law. It is an&s;wered: It cannot be imagined that ever the people would be &s;o &s;otti&s;h, as to give &s;uch a power to tho&s;e whom they choo&s;e 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 doubt|le&s;&s;e that man is upon the mo&s;t &s;olid and firm ground, that hath both the letter and <HI>equity</HI> of a known declared, and unrepealed Law on his &s;ide, though his practi&s;e do cro&s;&s;e &s;ome pretended Priviledge of <HI>Parliament.</HI></P>
<P>And whereas by an Act made this pre&s;ent <HI>Parliament, Anno. 17 Caroli Regis,</HI> intituled,</P>
<P>An Act for Regulating of the Privie Councell, and for taking away the Court, commonly called, The Star-Chamber.</P>
<P>It is there declared, that the proceedings, Cen&s;ures, and Decrees of the Star Chamber, have by experience been found to be an into|lerable burthen to the Subje&s;t, and the means to introduce an Arbitrary power and Government, and that the Councell-Table have ad|ventured to determine of the e&s;tates, and liberties of the Subject, contrarie to the Law of the Land, and the rights and priviledges of the Subject. Which Laws are there recited, as fir&s;t <HI>Magna Carta,</HI> and the 5 <HI>Ed.</HI> 3. 9. and 25 <HI>Ed</HI> 3. 4. and 28 <HI>Ed.</HI> 3. 3. the la&s;t of which &s;aith that it is accorded, a&s;&s;ented, and e&s;tabli&s;hed, that none &s;hall be taken by Petition, or &s;ugge&s;tion made to the King or His Councell, unle&s;&s;e it be by Indictment, or pre&s;entment of good and lawfull people of the &s;ame neighbourhood, where &s;uch deeds be done, in due manner, ot by Proce&s;&s;e made by Writ originall at the Common Law, and that none be put out of his franchi&s;e or Free-hold, unle&s;&s;e he be duly brought in, to an&s;wer, and fore-judged of the &s;ame, by the cour&s;e of the Law; and by another Statute made in the 42 <HI>Ed.</HI> 3. 3. it is there inacted, that no man be put to an&s;wer without pre&s;entment before Iu&s;tices, or matter of Record, or by due Proce&s;&s;e and Writ originall according to the old Law of the Land.</P>
<P>Therefore for the Subjects good and welfare in future time, it is inacted, that from henceforth no Court, Councell, or place of Judica|ture &s;hall be erected, ordained, con&s;tituted, or appointed within this Realm of <HI>England,</HI> or dominion of <HI>Wales,</HI> which &s;hall have, u&s;e, or exerci&s;e the &s;ame, or the like juri&s;diction, as is, or hath been u&s;ed, practi&s;ed, or exerci&s;ed in the &s;aid Court of Star-Chamber.</P>
<P>From the <HI>equity</HI> and letter of which Law, it is de&s;ired that our learned Lawyers would an&s;wer the&s;e in&s;uing <HI>Quaeries.</HI></P>
<P>Fir&s;t, whether the letter and <HI>equity</HI> of this Law, do not bind the very Parliament them&s;elves during the time of their &s;itting, in the like ca&s;es here expre&s;&s;ed to the &s;ame rules here laid down? Which if it &s;hould be denied. Then &s;econdly, whether the <HI>Parliament</HI> it &s;elf, when it is &s;itting, be not bound to the ob&s;ervation of the letter and <HI>equity</HI> of this Law, when they have to do with free-men, that in all their actions and expre&s;&s;ions have declared faithfulne&s;&s;e to the Common-wealth? And if this be denied, Then</P>
<P>Thirdly, whether ever God made any man lawle&s;&s;e? or whether ever the Common-wealth when they choo&s;e the Parliament, give them a lawles unlimited power, and at their plea&s;ure to walk contrary to their own Laws &amp; Ordinances before they have repealed them.</P>
<P>Fourthly, whether it be according to Law, Ju&s;tice, or equity, for the Parliament to impri&s;on or puni&s;h a man for doing what they command him, and by oath injoyn him?</P>
<P>Fiftly, whether it be legall, ju&s;t, or equall, that when free-men do endeavour according to their duty, oath and Prote&s;tation, to give in Information to the Parliament of Trea&s;on acted and done by Sir <HI>John Lenthall,</HI> again&s;t the State and Kingdom, and long &s;ince com|municated to &s;everall Members of the Hou&s;e of <HI>Commons,</HI> but by them concealed and &s;mothered; And now by Gods providence brought upon the &s;tage again, and during the time that Inqui&s;ition is made of it before the Committee of Examination, before any legall charge be fixed upon Sir <HI>John Lenthall,</HI> or he required to make any an&s;wer or defence, that he &s;hall be pre&s;ent to out-face, di&s;courage, and abu&s;e the Informers and witne&s;&s;es in the face of the Committee, without any check or controll from them?</P>
<P>And &s;ometimes while they are &s;itting about the Examination of his Trea&s;on, that he &s;hall &s;it down be&s;ide them with his hat on, as if he were one of them, and that he &s;hall injoy from the Committee ten times more favour and re&s;pect then the ju&s;t, hone&s;t, and legall Infor|mers again&s;t him; who by &s;ome of the Committee them&s;elves while they are &s;itting, are threatned, jeered, nicknamed, and otherwayes mo&s;t &s;hamefully abu&s;ed.</P>
<P>Yea and the friends of the Informers for the State are kept without doors, and the friends of the accu&s;ed admitted to come in alwaies without controll; and during the Examination of the Information, that the Committee &s;hall refu&s;e to remove the Informers out of Sir <HI>John Lenthals</HI> cu&s;tody of Kings-Bench to another pri&s;on, although they have been truly informed, that he hath &s;et In&s;truments on work to murther them, and al&s;o importuned to remove them.</P>
<P>Sixtly, whether it be not mo&s;t agreeable to Law, Ju&s;tice, and equitie, that &s;eeing Sir <HI>John Lenthall</HI> having &s;o many friends in the Hou&s;e concerned in the bu&s;ines, that he &s;hould not rather be tried by the &s;ame Councell of Warre in London, where Sir <HI>John Hotham</HI> and his Son were, then at the Parliament, his principall crime being again&s;t the Law Mar&s;hall as theirs was.</P>
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