Refractoria disputatio: or, The thwarting conference,: in a discourse between [brace] Thraso, one of the late Kings colonels. Neutralis, a sojourner in the city. Prelaticus, a chaplain to the late King. Patriotus, a well-willer to the Parliament. All of them differently affected, and disputing on the subjects inserted after the epistle, on the dissolution of the late Parliament, and other changes of state.

The Array of the People.

WE now come to the principal and practical part of the kings power over the Militia; for the Array of the people is the grand piece of that usurpatious claim; viz. That at his own will and pleasure he may send forth his Commissions to Array the people against themselves; and this power (under colour of Law, and of right belong∣ing unto him) the universal Nation knows he forbore not to put in execution against

their Representative, summoned by his own Writs, a president without president, nei∣ther for the legality known either in our Histories or Law-books, otherwise then by consent of Parliament, and in cases of immi∣ment danger for opposing of an invading Enemy; but for a king trusted with the de∣fence of his people, in calms of peaceable times, and on no necessity, to put in executi∣on such a reasonless and unlimited power, as one of his Royal Prerogatives, and to main∣tain it by the sword, was besides the breach of his Royal trust; such a daring action, as none but a Tyrant in folio would have at∣tempted. 'Tis true, that heretofore, during that long continued feud between the Eng∣lish and the Scots, divers Gentlemen of the North parts and others on the Welch-Bor∣ders of the kings Tenants, were by their Tenures bound to rise, watch and wind horns, on all incursions of the Scots; and of these kind of Tenures, Littleton treats in his chapter of petty Serjeanty; but I suppose none so very cowards (though not bound by their Tenures) but would take up Arms in the common defence, and contribute their best assistance for the expel∣ling of an invading Enemy, though in this

very case (by the Law of the Land.) 'Tis very dangerous for him, that shall raise Forces without special Commission from the King and Parliament; and Cromwel Earl of Essex in Henry the Eigth's Reign, (though at that time Lord President of the North) dyed for no o∣ther cause then this, that he raised an Army both for the suppression of an insurrection, and expulsion of the Scots; so nice and provident our Ancestors have ever been of levying Armies in the bowels of the Land on any pretence what∣soever; But for the king first to raise an Army at York, assuring the Parliament that it was to no other end then for a Guard to his Person, and therewith to cause so many half-witted Lords (then attending him) to attest that for truth, which was false, as it ma∣nifestly appeared by his immediate marching to Nottingham, where he set up his Standard of War, as a summons of the people to his assistance against the Parliament, when him∣self was both the first Assaulter and Invader: and yet at that very instant of time, to re∣assure the Parliament, that he raised not his Standard against them: and at the same con∣juncture•• of time to send out his Commissions

of Array, was doubtless such a breach of Trust, and a Treachery of so deep a die, as that in all our Histories we finde it not par∣rallel'd amongst all our kings, but onely in that Tyrant of Tyrants king Iohn, who indeed invaded the Land, and ruined the Castles, and Houses of the Barons & Gentry that opposed his Tyrany, and came not to his assistance at a call; and in this kinde of Tyranny, it can∣not be gainsaid, the late king came not be∣hind him, if not exceeding that irregular king, as 'twas evident by this instance, that im∣mediately after the sending forth of his Commissions of Array, on the heels of those, issued out his Commissions of Oyer & Ter∣miner, to hang all those which adhered to the Parliament. But in a little more to the il∣legality of the kings Commissions of Array, both before and after the setting up of his Standard; surely those Lawyers that waited on him first at York, and after at Oxford, were doubtless those which mis••ed him, and with such artifices and pains drew up his Answer to the Parliaments Declaration of the first of Iuly 1642, against the legality of the Commissions of Array. He that will take the pains to examine that Declaration compared with the kings Answer, may soon perceive that the Contrivers and Penners

thereof were not so honest as they should have bin, neither as it seems so wel read in the Laws, or so expert workmen, as to avouch the Statute of the 4. & 5. of Hen. the 4. 150 times over in that Answer, and not∣standing all their endeavors, to entrust the King with a legal power to send forth his Commissions for arraying of the people at his own will and pleasure without consent of Parliament; yet those fine Iohns for the king, have not, neither could they produce any scrap of Law or piece of Statute that enables the king to Array the people against themselves, to engage English against En∣glish, and to set so many as came into his assistance together by the ears with those which adhered to the Parliament, and at a time when there was not the least fear or ex∣pectation of an invading Enemy, more then of those which the Parliament feared should be sent him out of France, Lorrain, and Denmark; but to what other ends then to ruine the Parliament, let any impartial Royalist make his own judgement; 'tis true, that in case of Forraign invasions the king by Law hath been evermore trusted as Generalissimo to command the Force•• of the Kingdom, for defence and safety of the peo∣ple, and to no other end; and so was the Law

expounded in Parliament, the thirteenth of Queen Elizabeth, but never so wrested be∣fore by any of our Lawyers, as by those that waited on the King, would have enforc't thereby to impower him at pleasure, to com∣mand the strength of the Kingdom against it self; and surely it appears to me and thou∣sands more, that forty Judges, Serjeants, and Lawyers, then in both Houses of Parliament, should better understand and know more of the Law, in the case of Commissions of Array, then those eight or ten sycophant fellows that followed, and anima∣ted the King in such irre∣gular motions, onely in hopes of preferment, and to form him into such a posture of absolute power, that when he pleased he might destroy himself and the Kingdom, as that to our grief we may re∣member they had taught him, and put him in the high-way of the accomplishment. I remember a pertinent passage related in our Histories, how that the Earls of War∣wick and Leycester being peremptorily sum∣moned to attend Edward the First into France, the Earls in plain English told him, that by the Laws of the Land they were not bound to wait on him out of the Land at his pleasure, but onely within the Realm and

for the defence thereof, and that onely on Invasions of Forraign Enemies; which agrees with that before recited of his taking the Train-men out of their respective Coun∣ties by his Commissions, to serve him in Gascoyn, Gwyn, and other places beyond the Seas, contrary to the Laws of the Land, which grievance the King then redrest; nei∣ther could I ever yet finde any one express Law or Statute that enables any of our Kings by their sole power without consent of Par∣liament to Array the people, but onely in the case of Forraign Invasions, and coming in of strange Enemies; howsoever the Penners of the Kings Answer to the Parliaments Decla∣ration, have laboured (though to no pur∣pose) to prove it otherwise; however 'tis worth the observation, what fruitless pains they have taken in their frequent reci∣tals of the Statutes of the 4. & 5. of Hen. 4^th, the 13. of Edw. the 1^o. 1. Ed: 2^d. 25. of Edw. the 3^d. 9. of Edw. 2^d. the 4. & 5. of Phil. and Mary; 1^o Iacobi, with divers others, all of them principally tending to the Assize of Arming the Subject secundum facultates, according to his ability; those Assizes ha∣ving been almost in every Raign altered, and the Statutes according to the vicissitudes of times, change of Arms, and invention of Guns, for the most part of them repealed,

and new Statutes made in their rooms with power of Commissions to be issued as the exigency of affairs should require on In∣vasions from abroad, home defence on In∣surrections, &c. All which so often and so much prest in the Kings Answer made no∣thing to the matter in question, between him and the Parliament 1642. The point in que∣stion, was not then concerning the old Commissions of assizing Armes, or Com∣missions of Lieutenancies in every Coun∣ty; but the reasons of the Parliaments De∣claration, and the exceptions they took, were against that exorbitant power the King assumed to himself under pretext of Law, to Array the people one against the other, and against their Representative, as that sure enough he failed not to put in practise, howsoever disguised under an elaborate and ridiculous Answer, when (as we have noted before) there is not one Statute or scrap of Law to be found in all our Law-books, that legally enables the King to raise war against a Court of Par∣liament, and raise combuston in the bowels of the Kingdom; which I trust may satis∣fie all Royalists, that the Parliament had then good cause to complain, when in times of Peace he made them times of war and desolation, by sending out those his

illegal and destructive Commissions, which whether they were so or not, doubtless the Parliament was better able to judge and determine then the King or his Minions then attending his Person.

Notes

• Cornage Tenure.
• The Lords Cromwels Case.
• Littleton, Banks, Lane, Heath, the Atturney Herbert, Palmer, &c.