unto the Court and submit himself unto the Law which he did and was put to his fine gave sureties to pay it Which proofs and arguments touching the subordination of the Judges or their Courts of Justice are not nor ever were intended for the reverend Judges and Sages of the Law or the Students Professors and Practisers thereof whose learning and Judgments neither scrupled or needed it but unto those vulgar and mechanick busie headed and unquiet part of the People qui nesciunt se ignorare will not own any ignorance when they are most ignorant but will be sure to dislike every thing which they do not understand because they take their measures by the shortlines of their vulgar take and incomprehensive capacities which makes them to be so restless and unsatisfied in their mistakings and so lincked and wedded unto them I had not been so large in clearing that particular which unto some may seem more then requisite but that it may justly be feared that those opinions or impressions if not disâ—odged and fully convinced may as those long agoe condemned Heresies and Errors in the Church did in our late distractions and distempers rise up again under the pretence of new notions and gain a kind of Succession too like a perpetuity And therefore every man may without any the Incumbrances of doubts or controversies be assured CHAP. VII That the King or the great Officers of his Houshold may punish those that doe infringe his servants priviledges and that any of the Kings Servants in Ordinary being arrested without leave are not so in the custody of the Law as they ought not to be released untill they do appear or give Bayl to Appear and Answer the Action WHen it must or should be acknowledged that notwithstanding that by the Statutes made in the 37th and 38th years of the Reign of King Edward the third untrue Suggestions made to the King and his Councell were prohibited and to be punished and that by a Statute made in the 42 d. year of the Reign of that King no man was to be brought to answer any accusation to the King without praesentment before Justices or matter of Record yet matters extraordinary or suggestions which had truth or evidence to accompany them were not by any of those Acts of Parliament forbidden and howsoever that by a Statute or Act of Parliament made in the 17 th year of the Reign of King Charls the Martyr the Kings Privy Councel were restrained from intermedling in matters concerning Freeholds and the Properties of the Subject which comprehends many of the matters which may concern any man brought before them or accused yet there is no restraint of Arrests or sending for Delinquents by the Kings Messengers or prohibition against the right use of them or the high and super eminent authority of the King and the Lords of his Honourable Privy Councel in cases to prevent Duells and make abortive dangers and inconvenient to the publique punish Riots unlawfull Assemblies and misdemeanors beyond the reach and Authority of Justices of the Peace many other emergencies who may certainly as legally make use of Messengers or Serjeants at Arms to compell disobedient and refractory persons to appear before them as the Lord Chancellor or Lord Keeper of the Great Seal of England by or under the Kings authority doth now and hath long agoe used to do in cases of contempt of the Processe of that Court after an Attachment with Proclamation and Commission of Rebellion or as the Lord Privy Seal did usually in the Court of Requests after the like Processe could not apprehend or take the person contemning his authority or not appearing before him for unto what purpose shall that honourable and venerable Assembly who Sir Edward Coke saith are Profitable instruments of the State and do bear part of the Soveraignâ— cares and imploy their time and endeavors in the Execution of the Duty of their Oathes and Places and that great trust incumbent upon them if they may not enjoy a coercive Power which the Judices paedanei petty Judicatures and even the Pye-Powder Courts of the Kingdome do enjoy or should make it their business to baffle their own authority and only send for People to come unto them when they please or when they are come before them do what they please but should within their Conusance and Jurisdiction according to a Maxime and Rule of the Civil Law well allowed and entertained by our Common-Law Cum aliquid conceditur id quoque concedi videtur sine quo id efficere non potest when any Jurisdiction or authority is granted that also which should support and attend it seemeth to be granted with it have as great a power of coercion to attend their authority as the Parliament the greater and more extraordinary Councel under the King and Head thereof is allowed and all other Councels in all the Kingdomes and Republiques of Christendome and are not therefore to be denied a just and competent Power to attend them in the administration of the affairs or business of the King intrusted unto them or to be debarred their inspection into all the affairs of the Kingdom concerning the good welfare of the King his People upon casualties accidents and cases extraordinary reformations of abuses by the Kings Edicts or Proclamations and in the deficiency of Laws in matters or things not foreseen or provided for by Laws which cannot be either so prophetick or comprehensive as to supply or give a Remedy to all things but must leave many things to ragione di Stato reason of State and the cares of our Pater Patriae Father of his Countrey and Kingdome to provide against necessities otherwise irresistable which can neither at all times tarry for the calling of a Parliament or the suffrages of it or be communicated unto the vulgar especially in unquiet or cloudy times when our Peace the blessing of our Nation cannot either enjoy her self or impart her comforts to the People without the more then ordinary vigilance of the King and his Privy Councell where the King himself is very often present especially in the absence of that as ancient as the Raign of King Edward the third then and many ages after well regulated Court of Star-Chamber many of whose Judges were the Kings Privy Councell the King himself being there rarely or seldome present and of that necessary Court of the High Commission preventing and watching over such abuses or misdemeanors as might either scandalize or disturbe the peace and good order of holy Church and such as served at the Altar And certainly that formerly great power and authority which resided in the Steward or Major-domo of the Kings Houshold who as Fleta hath recorded it enjoyed in the Reign of King Edward the first such an extraordinary power as he did vicem gerere exercise as it were the Office of Deputy to the Lord Chief Justice of England whose Office and place
I could perceive trodden by any but Your Lordships most Humble Servant Fabian Philipps THE TABLE OR Contents of the Chapters THat there is a greater Honour due unto the Palace and House of the King Then unto any of the houses of his Subjects Chap. I. 4 That the Business and Affairs of the King about which any of his Servants or Subjects are imployed are more considerable and to be regarded then the Business and Affairs of any of the People Chap. II. 29 That the Kings Servants in ordinary are not to be denied a more than ordinary Priviledge or respect nor are to be compelled to appear by Arrest or otherwise in any Courts of Justice out of the Kings House without leave or Licence of the Lord Chamberlain or other the Officers of the Kings Houshold to whom it appertaineth first had and obteyned Chap. III. 38 That the Priviledges and Protections of the Kings Servants in ordinary by reason of his Service is and ought to be extended unto the Priviledged Parties Estate both real and Personal as well as unto their Persons Chap. IV. 244 That the Kings Servants whilst they are in his Service ought not to be Utlawed or Prosecuted in Order thereunto without leave or Licence first obteyned of the King or the great Officers of his most Honourable Houshold under whose several Jurisdictions they do Officiate Chap. V. 250 That the Kings established and delegated Courts of Justice to Administer Justice to his People are not to be any Bar or hindrance to his Servants in ordinary in their aforesaid Antient Just and Legal Rights and Priviledges Chap. VI. 289 That the King or the great Officers of his Houshold may punish those who do infringe his Servants Priviledges and that any of the Kings Servants in ordinary being Arrested without leave are not so in the Custody of the Law as they ought not to be released untill they do appear or give Bayl to appear and Answer the Action Chap. VII 310 That the aforesaid Priviledge of the Kings Servants in ordinary hath been legally imparted to such as were not the Kings Servants in ordinary but were imployed upon some Temporary and Casual Affairs abroad and out of the Kings House Chap. VIII 318 That the Kings granting Protections under the Great Seal of England to such as are his Servants in ordinary for their Persons Lands and Estates when especially imployed by him into the parts beyond the Seas or in England or any other of his Dominions out of his Palace or Virge thereof or unto such as are not his Domesticks or Servants in ordinary or extraordinary when they are sent or imployed upon some of his Negotiations Business or Affairs neither is or can be any Evidence or good Argument that such only and not the Kings Servants in ordinary who have no Protections under the Great Seal of England are to be Protected or Priviledged whilst they are busied in his Palace or about his Person Chap. IX 343 That our Kings some of which had more than his nâ—w Majesty hath have or had no greater number of Servants in Ordinary than is or hath been necessary for their Occasions Safety well being State Honour Magnificence and Majesty And that their Servants waiting in their Turns or Courses are not without leave or Licence as aforesaid to be Arrested in the Intervals of their waiting or Attendance Cap. X. 355 That the King being not to be limited to a number of his Servants in Ordinary is not in so great a variety of Affairs and contingencies wherein the publick may be concerned to be restrained to any certain number of such as he shall admit to be his Servants extraordinary Chap. XI 365 That the Subjects of England had heretofore such a regard of the King and his Servants as not to bring or commence their Actions where the Law allowed them against such of his Servants which had grieved or Injured them with ut a remedie first Petitioned for in Parliament Chap. XII 375 That the Clergy of England in the height of their Priviledges Encouragement and Protection by the Papall overgrown Authority did in many cases lay aside their Thunderbolts and Power of Excommunications appeals to the Pope and obtaining his Interdictions of Kingdoms Churches and Parishes and take the milder modest and more reverential way of Petitioning our Kings in Parliaments rather than turn the rigors of their Canon or Ecclesiastical Laws or of the Laws of England against any of the Kings Officers or Servants Chap. XIII 389 That the Judges in former times did in their Courts and Proceedings of Law and Justice manifest their unwillingness to give or permit any obstruction to the Service of the King and Weal Publick Chap. XIV 392 That the Dukes Marquesses Count Palatines Earls Viscounts and Barons of England and the Bishops as Barons have and do enjoy their Priviledges and freedom from Arrests or Imprisonment of their Bodies in Civil and Personal Actions As Servants extraordinary and attendants upon the Person State and Majesty of the King in Order to his Government Weal Publick and safety of him and his People And not only as Peers abstracted from other of the Kings Ministers or Servants in Ordinary Chap. XV. 413 That many the like Priviledges and Praeheminences are and have been antiently by the Civil and Caesarean Laws and the Municipal Laws and Customs of many other Nations granted and allowed to the Nobility thereof Chap. XVI 445 That the Immunities and Priviledges granted and permitted by our Kings of England unto many of their People and Subjects who were not their Servants in Ordinary do amount unto as much and in some more than what our Kings Servants in Ordinary did or do now desire to enjoy Chap. XVII 466 That many of the People of England by the Grace and Favour of our Kings and Princes or along permission usâ—ge or prescription do enjoy and make use of very many Immunities Exemptions and Priviledges which have not had so great a Cause or Foundation as those which are now claimed by the Kings Servanes Chap. XVIII 489 That those many other Immunities and Priviledges have neither been abolished or so much as murmured at by those that have yeilded an Assent and Obedience thereunto although they have at some times and upon some Occasions received some Loss Damage or Inconveniences thereby Chap. XIX 494 That the Power and care of Justice and the distribution thereof is and hath been so Essential and Radical to Monarchy and the constitution of this Kingdom as our Kings of England have as well before as since the Conquest taken into their Cognisance divers Causes which their established Courts of Justice either could not remedie or wanted Power to determine have removed them from other Courts to their own Tribunals and propria authoritate caused Offenders for Treason or Felony to be Arrested and may upon Just and Legal Occasions respite or delay Justice Chap. XX. 503 That a care of the Honour and Reverence due unto the
Liberties did commit to Prison one that had Arrested one of Her Servants without leave and the Creditor being shortly after upon his Petition released by the said Earl who blaming him for his contempt and misdemeanor therein and being answered by the Creditor that if he had known so much before hand he would have prevented it for that he would never have trusted any of the Queens Servants was so just as to inforce that Servant of the Queens to pay him presently or in a short time after the said debt And told him that if he did not thereafter take a better care to pay his Debts he would undo all the other of the Queens Servants for that no man would trust them but they would be constrained to pay ready money for every thing which they should have occasion to buy In the six and twentieth year of Her Reign Henry Seâ—kford Esq one of the Grooms of Her Majesties Privy Chamber being Complainant against William Cowper Defendant the Defendant was in open Court upon his Allegiance enjoyned to attend the said Court from day to day until he be otherwise Licenced and to stay and Surcease and no further prosecute or proceed against the Complainant in any Action at and by the Order of the Common Law And about the Seven and twentieth year of Her Reign some controversies arising betwixt the Lord Mayor and Citizens of London and Sir Owen Hopton Knight Lieutenant of the Tower of London concerning some Liberties and Priviledges claimed by the Lieutenant and his refusal of Writs of Habeas Corpora and that and other matters in difference betwixt them being by Sir Thomas Bromley Knight Lord Chancellor of England the Earl of Leicester and other the Lords of the Council referred unto the consideration of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and Sir Gilbert Gerrard Knight Master of the Rolls they did upon hearing of both parties and their allegations Certifie under their hands that as concerning such Liberties which the Lieutenant of the Tower claimeth to have been used for the Officers and Attendants in the Tower some of them being of the Queens Yeomen of the Guard and wearing Her Livery Coates and Badges as they do now the Kings as not to be Arrested by any Action in the City of London and Protections to be granted unto them by the Lieutenant and his not obeying of Writs of Habeas Corpus They were of opinion that such Persons as are dayly Attendant in the Tower of London Serving Her Majesty there are to be Priviledged and not to be Arrested upon any plaint in London But for Writs of Execution or Capias Vtlagatum's which the Law did not permit without leave first asked the latter of which by the Writ it self brings an Authority in the Tenor and purport of it to enter into any Liberties but not specifying whether they intended any more than Capias Vtlegátum when it was only after judgement or such like they did think they ought to have no priviledge which the Lords of the Council did by an Order under their hands as rules and determinations to be at all Times after observed Ratifie and Confirm And our Learned King James well understanding how much the Weal Publick did Consist in the good Rules of Policy and Government and the support not only of His own Honor and just Authority but of the respects due unto his great Officers of State and such as were by him imployed therein did for the quieting of certain controversies concerning Precedence betwixt the younger Sons of Viscounts and Barons and the Baronets and others by an Ordinance or Declaration under the Great Seal of England In the tenth year of His Reign Decree and Ordain That the Knights of the Most Noble Order of the Garter the Privy Councellors of His Majestie His Heires and Successors the Master of the Court of Wards and Liveries the Chancellor and under Treasurer of the Exchequer Chancellor of the Dutchy of Lancaster the Chief Justice of the Court commonly called the Kings Bench the Master of the Rolls the Chief Justice of the Court of Common Pleas the Chief Baron of the Exchequer and all other the Judges and Barons of the degree of the Coife of the said Courts Now and for the Time being shall by reason of such their Honourable Order and Imployment have Place and Precedence in all Places and upon all occasions before the younger Sons of Viscounts and Barons and before all Baronets any Custom Vse Ordinance or other thing to the Contrary Notwithstanding In the four and thirtieth year of Her Reign Sir Christopher Wray Knight Lord Chief Justice of Her Court of Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and the rest of the Judges of the aforesaid Courts seeming to be greatly troubled that divers Persons having been at several Times committed without good cause shewed and that such Persons having been by the Courts of Queens Bench and Common Pleas discharged of their Imprisonments a Commandment was by certain great Men and Lords procured from the Queen to the Judges that they should not do the like thereafter all the said Judges together with the Barons of the Exchequer did under their hands Exhibit unto the Lord Chancellor and the Lord Burghley Lord Treasurer of England their Complaint or Remonstrance in these words viz. We Her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some Order may be taken that her Highness Subjects may not be Committed or detained in Prison by Commandment of any Noble Man or Counsellor against the Laws of the Realm either else to help us to have access unto her Majesty to the end to become Suitors unto Her for the same For divers have been imprisoned for Suing Ordinary Actions and Suits at the Common Law until they have been constrained to leave the same against their Wills and put the same to Order albeit Judgement and Execution have been had therein to their great losses and griefs For the aid of which persons her Majesties Writs have sundry Times been directed to sundry Persons having the custody of such Persons unlawfully Imprisoned upon which Writs no good or Lawful cause of Imprisonment hath been returned or Certified Whereupon according to the Laws they have been discharged of their Imprisonment some of which Persons so delivered have been again Committed to Prison in secret places and not to any Common or Ordinary Prison or Lawful Officer or Sheriff or other Lawfully Authorised to have or keep a Goal So that upon Complaint made for their delivery The Queens Courts cannot tell to whom to Direct Her Majesties Writs And by this means Justice cannot be done And moreover divers Officers and Serjeants of London have been many Times Committed to Prison for Lawful Executing of Her Majesties Writs Sued forth
concedit concedere videtur id sine quo res esse non potest when the Law granteth any thing it granteth the means without which the matter or thing could not be which the now Lord Mayor or London or some of the Sheriffs or Aldermen of that City thought to be Warrant sufficient for imprisoning if report be not mistaken a poor Cobler living in or near Fleet street for stumbling upon a piece of a Jest or Drollery and saying he thanked God he had dined as well as the Lord Mayor when his Lordships coming or being invited to dinner with the Reader and Society of the Inner Temple in or about the latter end of the Moneth of March 1668. had upon his claiming a liberty to have the Sword of the City born before him within the Liberties of the Temple caused some Tumult or Ryot begun as the Gentlemen of that Society alleaged by his own party the harmless Coblers curiosity had only perswaded him to leave his small subterranean Tenement shaded with his usual frontelet of a few old shooes to be amongst many other of the Neighbourhood a Spectator of that contention betwixt the Lord Mayor and that Inne of Court concerning its Privileges the one endeavouring to infringe and the other to defend the Temples very antient clearly to be evidenced privileges And many Justices of the Peace would be unwilling that their punishments by committing of men to prison for ill words mis-behaviours or sometimes by a but supposed affront given or used unto some of them for a Tobaccoe-pipe casually thrown out of the window of an Alehouse into a neighbor Justice of the Peace his Garden when unperceived by the Thrower he was walking therein should be adjudged to be without the bounds or limits of their Commissionated Authority nor should they or any other of the Kings Subjects refuse to subscribe to that well-known Axiom conseâ—ted unto by our Laws as well as the Law of Nations that derivativa potestas non potest esse major primitiva that a derivative power or authority cannot be greater than the power and authority which gave it And therfore it should neither be taken to be any over bold assertion vain imagination or inference weakly built conjecture or conclusion without premises that the servants of the Kings of England in ordinary ought not to be bereaved of their aforesaid Privileges and that all the Subjects of England are more then a little obliged to take a care that they should enjoy them when as every Male of England and Wales above the age of 12 years are to take and swear the Oath of Allegiance which was a law so long agoe instituted and ordained saith Sir Edw. Coke before the Conquest as King Arthur is by good Warrant believed to be the Author of it and all the People of England who since his Majesties happy restoration have sworn it and by that great tie and obligation did undertake to bear truth and faith unto him and his Successors of life and member and terrene honour and that they should neither hear or know of any damage intended unto him which they should not defend all which do take degrees of learning faculties in our Universities all Judges Serjeants at Law Justices of Peace Baristers at Law Mayors Sheriffs and Magistrates whatsoever under Sheriffs and their Deputies and all Bayliffs Officers and Clerks entrusted in any Court of Justice do not only take and swear the Oath of Allegiance but the Oath of Supremacy which is to defend the jurisdictions and privileges preheminencies and authorities of the King his Heirs and Successors annexed to their imperial Crown and dignity and by all those very binding and soul as well as body engaging obligations should in no case endeavour to impugne or obstruct which the arresting of his Servants in ordinary or his necessary attendants without leave or license first obtained doth assuredly do his so antient so legal and so long accustomed just Rights Jurisdictions Privileges and authorities inseparably incident and appurtenant to his Royal government it having been in the Reign of King Henry the 8 th one of the Articles against Cardinal Wolsey subscribed by the Lord Chancellor the Dukes of Norfolk and Suffolk diverse Earls Barons and some of the Kings Privy Councel that where it had been accustomed within the Realm that when Noblemen do swear their Houshold Servants the first part of their Oath hath been that they should be true Leigemen to the King and his Heirs Kings of England the same Lord Cardinal had omitted to do it Nor have those rational legal necessary and well grounded privileges of Kings or Princes Servants decursu Temporis by any change or long course of time been so discontinued antiquated or altered upon any pretence of grievance or inconveniencies whatsoever as not now to be extant and found in our Neighbour Nations and most other of the civilized parts of the world not only where the fear of God or honour of Princes have any thing to do but even amongst those which having not had light enough to know the true God have in their ignorance fancied and made to themselves Deities of their own imaginations When our Neighbours of France who were heretofore better acquainted with their Liberties than since they are or are likely to be did not think it to be a thing unreasonable that the King of France his servants in ordinary should enjoy those or the like immunities and privileges when non nisi venia prius impetrata without leave first obtained ab Architriclino sive Oeconomo hospitii regis from the Master of the Kings houshold as with us the Lord Steward or Lord Chamberlain neminem licet per Francorum leges in jus vocare in Palatio It was not lawful by the Laws of France to sue or arrest any in the Palace or belonging to the Kings houshold Pares Franciae praetoribus Regiis non subjiciantur The Peers of France are not to be tryed by the Kings ordinary Courts of Justice Et non ferebat nobilitas de feudis ab ignobili ullo judicari the Nobility of France will not endure that any thing concerning their Fieffs or Lands should be tryed and adjudged by any which were not of the Nobility In the year 1288. which was about the 24 th year of the Reign of our King Edward the first in the case of John Pompline it was in the Parliament of Paris adjudged that he being the Kings servant in ordinary ought not to pay any Assessment And the like in the year 1311. in the Raign of King Philip the fair of France which was about the 4 th year of the Raign of our King Edward the second in the case of Baldwin and Proger Et Philippi pulchri constitutione ad Architriclinum sive Oeconomum actionalium personalium jurisdictio pertinebat quae a ministris Regiis omniumque criminum cognitionem sibi vendicabat quae in Comitatu
the Court of Common-Pleas nor by a Writ of Pone upon a Certiâ—rari out of the Chancery under his Teste meipso as â—f he were there present to direct it to be tryed in the Court of Kings-Bench coram nobis by a supposition that it should be there determined before himself neither did some of our Kings need to have holden Parliaments by their Substitutes or Commission as King Edward the third did in his absence to his Son Edward Duke of Cornwal and at another time unto Lionell Duke of Clarence another of his Sons if he could by any just or legal intendment have been supposed to have been there alwayes absolutely and to all purposes virtually present But if there should be a refusal by any of the Kings Servants in Ordinary to appear upon any Writs or Process issuing out of any of his Courts of Justice whilst they are in the Service of the King their Master yet when the King shall have discharged that refusal or contempt if it should be so called by a greater and more necessary command in the case of any of his Servants attending upon Him that contempt is no more to be insisted upon for if in such a case of his moeniall Servants his command in the necessary attendance upon his person or affairs in one place shall not amount to a Supersedeas or discharge of any supposed contempt of his Writs and Process and delegated Mandates in another And his commissionated Courts of Justice should adjudge his Servants to be guilty of a contumacy or contempt against his Courts of Justice in not obeying of his Process whilst they do attend upon his person in the safety and well being of Him and all his Subjects and of the Courts of Justice themselves they must separate themselves from themselves and themselves from the King which intrusted them with that authority by too much supposing his authority to be in themselves mistake fancy that authority in them to be Superiour to him that gave it erect to themselves a kind of Superiority over him which gave them that authority by and under which they do act and are impowred the bounds and limits whereof they should not go beyond or exceed For although there may be a contempt charged upon some one or more of the Kings many Servants attending in his Court or Pallace for disobeying or not performing some of his personal commands and upon the same party much about the same Time for a contempt for not obeying or performing the Precept or Process of his subordinate Judges by not appearing to some Action prosecuted before them and so a double contempt or contumacy against the King yet the contempt to the Kings personal command is and must needs be greater then that which is to his Justices or Courts of Justice and is more immediate then that which is but mediate concerns but some one particular Plaintiff not seldom in a malicious or unjust cause of Action or if just for some trivial hot headed uncharitable and unneighborly cause of Action as for Trespass of a Horse or Cow broken into his Pasture by the default or occasion of his own ill Fence or Hedges when the Beast knew as little of reason or property as the Plaintiff did of Religion or the rules of Christianity when that which is more immediately to the King may not a little but greatly concern the well or ill being of the whole Nation or of multitudes and in that general and universal concernment of the angry prosecutor himself when that which is but mediate and a lesser contempt to some one of the Kings Courts of Justice in not appearing to some of their Writs or Process made out in the Kings name and by his authority concerneth only a few particular persons And theâ—efore we should too much thwart those common principles of reason and understanding to deny the greater command its power and efficacy before the lesser and that of the King before that of his Justices or to punish and arrest any of the Kings Servants if they were not so justly entituled to the Priviledges aforesaid for all or the most part of Arrests by order or course of any Courts of Justice in civil Actions before appearance are grounded either upon contempts or propter suspitionem sugae to prevent running away for disobeying the lesser authority and a private and particular concernment to obey the greater or the commands of the King in just and lawful things as a Servant in matters relating to his service and in that to the weal publique or greatest concernment and may well be excused for failing in the lesser or private when he is by his Oath usually administred unto the Kings Servants truly and diligently to attend and wait and not to depart out of the Kings Court without licence had or obtained of the Lord Chamberlain or other the Officers of the Kings most honourable Houshold unto whom it appertaineth and to obey all and singular commandments given in charge on the behalf of the King and is not by his Oaths of Allegiance and Supremacy to lessen or abridâ—e any of the Kings Royal Jurisdictions Preheminences and Priviledges from and under which are legally derived the aforesaid Rights and Priviledges of his Servants who if they were not priviledged are not in the contrariety and conflict of superior and inferior commands to neglect those of the Superior where he is so bound and ingaged by the duty of a Subject and Servant and so many obligeing Oaths to obey the Writs or Precepts of an Inferior to whom they are under no Obligation of Oaths nor are to be compelled to break those Oaths and Obligations or to do impossible things when as id possumus quod de Jure possimus things unlawful should be ranked amongst the impossibles our Laws do assure us that Lex non cogit impossibilia that the Law doth neither ordain nor compel impossible things to be done or doth punish for the not doing of them But if a restless Spirit of opposition to the Kings Rights or Regalities shall not permit an acquiescence unto that which hath been already said in defence of that part of it which concerns the Priviledges of his Servants but that an objection must be picked up to support their factious incivilities that the King ought not to punish or imprison any for the breach of his Servants Priviledges in the causing of any of them to be Arrested or Outlawed without leave or licence first procured when the Writs and Process tending thereunto are made in his own Name and under his smal or lesser Seals as to Writs and Process issuing out of the Courts of Kings-Bench and Common-Pleas delegated and entrusted by him unto the two Lord Chief Justices thereof the answer will have no difficulty if it shal be as it ought to be acknowledged that those Writs Process seldome expressing that the Defend is the K. Servant are of course made
as the Court of Chancery did in the 8th year of the Reign of Queen Elizabeth by her Writ supersede stay 2 Writs of Exigent in the Court of Common-Pleas at the Suit of two several persons against Robert Webb one of the Cursitors of the Court of Chancery by reason of his Office Attendance in that Court which Writ of Priviledge and Supersedeas was allowed by the Judges of that Court and an entry made upon the Roll where the Plea of his Priviledge was entred in these words Ideo consideratum est quod praedictus Robertus libertatibus privilegis praedictis gaudeat Ac separalia brevia praedicta ei conceduntur therefore it is ordered that the said Robert VVebbe shall enjoy his Liberties and Priviledges and that several Writs as a foresaid be granted unto him probably Writs of Supersedeas to the Sheriffs of London unto whom the Writs of Exigent had been before sent and directed or as the Court of Chancery hath done in the ninth year of the Reign of King James in the Case of Valentine Saunders Esquire one of the Six Clarkes of that Court require by the Kings Writs the Justices of the Court of Common-Pleas to surcease the prosecution of the said Valentine Saunders to the Utlary or might aswell defend their Regal Rights in the case of their Servants in Ordinary by a Writ de Rege inconsulto commanding as in some other cases of their concernments not to proceed against them until their pleasure be further signified or assert and command the Liberties Priviledges of their Servants by Writs de libertate allocanda aswell as for Liberties to be allowed unto Citizens or Burgers which contrary to their Liberties were impleaded But too many of the Kings Servants Creditors for all are not so uncivil who would be glad to find a way or some colour or pretence of Law rudely to treat the Rights of the King and his Servants would willingly underprop that their humour and design with an objection that our Kings have conveyed their Justice unto their established Courts of Justice at Westminster and are not to contradict alter or suspend any thing which they do in his name therein And that if any of the Kings Servants in Ordinary be arrested without leave the King or the great Officers of his Houshold may not punish those that do offend therein and that being so Arrested they are so in the Custody of the Law as they ought not to be released until they do appear or give Bayl to appear and answer the Action CAP. VI. That the Kings established and delegated Courts of Justice to administer Justice to his People are not to be any bar or hinderance to his Servants in Ordinary in their aforesaid antient just and legal Priviledges and Rights or that the Messengers of his Majesties Chamber may not be sent to summon or detein in custody the Offenders therein or that any of his servants being arrested without licence are so in the custody of the Law as they cannot before apparance or bayl to the Action be delivered WHich will not at all advantage their hopes or purposes if they shall besides what hath been already proved aswell as alledged give Admittance unto a more weighed consideration that delegatio ad causas non intelligitur ad futuras a Commission or Authority entrusted for some special or determinate matters is not to be understood to extend unto all that in the administration of Justice may afterwards happen that in the Court of Exchequer the Barons are and should be the special Ministers and Supervisors of the Kings Revenue subject to his Legal Mandates and disposing power that the Court of Common-Pleas being a Court erected and continued by our Kings for the dispatch of Justice and ease of their Subjects and People in Common-Pleas or Actions wherein the King his Crown and Dignity are not immediately concerned do only hold Pleas and have Jurisdiction and Cognisance ratione Mandati by reason of the Kings Original Writs Command or Commission issuing almost in every Action from himself out of his High Court of Chancery that the Justices of the Kings-Bench are ad placita coram Rege tenenda assignati assigned as coadjutors to the King to hear determine Pleas supposed by Law to be heard before himself in that Court and by the ancient stile title of their Records said to be de consilio Regis of the Kings Councel that in the High Court of Chancery the King by the Lord Chancellor or Lord Keeper of the Great Seal of England as his Substitute or Deputy as some of our Judges in the 9th year of the Reign of King James have believed them to be in that supereminent and superintendant Court of and over all his other Courts of Justice commands his Sheriffs who are sworn to execute his Writs and not to prejudice his Rights to execute their Writs directed unto them in his Name and under his Seal doth provide and give remedies in all emergencies of Law and Justice where the Supreme and Legal Authority is implored or prayed in ayd or assistance And that where a Delegated Power or Jurisdiction is granted by the King as not only the Lawes of many other Nations but our Bracton and Fleta men not meanly learned in the antient Laws and Customes of England as well as in the civil Laws have adjudged he doth not exuere sede potestate so grant away that Jurisdiction as to exclude himself from all power and not be able upon just and legal Occasions to resume it or intermeddle in some part thereof when a Lord of a Mannor though he hath by a Patent or Commission granted to his Steward for life the power or jurisdictions of keeping his Courts assessing of Fines and the like matters appurtenant thereunto is not debarr'd when a just occasion shal either necessitate or invite him thereunto from his personal assessing of Fines or other Acts belonging unto the Court or that power authority which he should have over his Tenants that where the Liberty of a Court Baron appurtenant to the Grant of a Mannor with the jurisdiction of Sake or Soke holding of Pleas and punishment of Offenders is granted by the King or allowed to any man and his heirs by Custome or Prescription the King is not debarred upon any grievance or complaint of any Tenant of the Manor to command Justice to be done unto him by his Writs of Right Close or Patent and where a Leet being a more large or greater Jurisdiction hath been granted to a man and his heirs to seize and grant it to another for not rightly observing the order of Law therein as for not erecting a Pillory making of a Clerk of the Market and the like or altogether disusing of it and where liberties of retorna Brevum executing returning Writs in a certain Precinct or Liberty have been granted to a man his Heirs common practice and
not to proceed in matters concerning his own particular without his being first consulted de Attornato languidi recipiendo to admit an Attorney for one that is sick Writs of Aâ—â—aint against Jurors falsly swearing in their Verdicts Writs de Aâ—sisa continuanda to continue the prâ—â—â—â—dings upon an Assise Audita querela to relieve one that is oppressed by some Judgment Statute or Recognisance Writs de Certioraâ—i de tenâ—re Indictamenti to be certified of the Tenor of an Indictment de Vtlagaria of an Utlary de tenore pedis Finis of the Tenor of the Foot of a Fine mittendo tenorem Assise in Evâ—â—entiam to send the Tenor of a Writ of Assise into the Chancery to be from thence transmitted by a Copy for Evidence into the Court of Exchequer Writs quod Justitiarii procedant ad captionem Assise impowring the Justices of Assise to procede in the taking of an Assise and his Commissions frequently granted in some special cases as Dedimus potestatem impowring the Judges or others to take the acknowledgements of Fines with many other kinds of Commissions a posse Comitatus ad vim Laicam amovendam to remove a force where a Parson or Minister is to be inducted into a Church or Benefice Commissions granted ob lites dirimendas to compose contentious suites of Law where the poverty of one of the parties is not able to endure them and the granting of a priviledge by some of our antient Kings to the Bishop and Citizens of new Sarum or Salisbury that the Iudges of Assize or Itinerants should in their circuits hold the Pleas of the Crown at that Town or City which King Edward the first did by his Writ or Mandates allow or cause to be observed and many more which might be here instanced which with the Laws and practice thereof and the reasonable customes of England do every where and abundantly evidence that the King doth not intrust his Courts of Justice or the Judges thereof with all his Regal power and all that with which he is himself invested in his politique capacity or hath so totally conveyed it unto them as to make them thereby the only dispensers of his justice but that the appeal or dernier ressort from all his Courts of Iustice is and resides in the King being the ultimate supreme Magistrate as from the inferiour Courts of Iustice in the Counties or Cities to the Superiour Courts of Iustice at Westminster-hall from the Court of Common-Pleas by Writ of Error to the Court called the Kings-Bench from that Court to the Parliament And as to some matters of Law fit to be tryed by action at Law from the Chancery unto the Kings-Bench or Courts of Common-Pleas or Exchequer reserving the equity when what was done there shall be returned and certified and even from the Parliament it self when Petitions there nepending could not in regard of their important affairs be dispatched to the high Court of Chancery and that appeals are made to the King in his high Court of Chancery from the Admiralty Court when as the process and proceedings are in the Name and under the Seal of the Lord Admiral and from the Prerogative Court of the Archbishop of Canterbury for proving of Wills and granting of Administration when the Process and proceedings are not in the Kings name but in the name and under the Seal of that Arch-bishop So as the Gentlemen of the long Robe who in the Reign of King Charles the Martyr argued against the Kings Prerogative for the just liberties of the people of England in the case of the Habeas Corpora's when they affirmed the meaning of the Statute made in the third year of the Reign of King Edward the first where there was an Exception of such not to be Baylable as were committed by the command of the King or of his Justices to be that the Kings command was to be understood of his commands by his Writs or Courts of justice might have remembred that in former times his Authority by word of mouth or in things done in his presence in matters just and legal not contradicting the established rules customes and courses of his Courts of Justice and the power and authority wherewith our Kings have intrusted them was accompted to be as valid if not more than any thing done in his Courts of Justice witness that notable record and pleading aforesaid betwixt the Prior and Bishop of Durham in the 34 th year of the Reign of that by his own and his Fathers troubles largely experienced King Edward the first which was not long after the making of that Statute concerning such as were to be bayled or not to be bayled where it was said and not denyed to be Law quod Ordinatio meaning an award or something acknowledged in the presence of the King in praesentia Regis facta per ipsum Regem affirmata majorem vini habere debet quam finis in Curia sua coram justitiariis suis levatus that any Ordinance or acknowledgment made in the Kings presence and by him affirmed was to be more credited and to have a greater force then a Fine levied before his Justices in his Courts of Justice which may be a good Foundation and Warrant for several agreements and Covenants made betwixt private persons and ratified by the King under his Great Seal of England by inspeximus and confirmations by his allowance and being witness thereunto as that of Rorger Mortimer Lord of Wigmore with Robert de Vere Earl of Oxford for the Honor and Earldome of Oxfâ—rd and the great Estate and Revenueâ—belonging thereunto forfeited by the said Earl in taking part with the Barons against King Henry the third and many others which might be instanced and are plentifully to be found in many Agreements and Covenants made betwixt Abbots and Priors and their Covents and divers of the English Nobility and great men mentioned in Master Dugdales first and second Tomes or Parts of his Monasticon Anglicanum For it was resolved in Easter Term in the fourth year of the raign of Queen Elizabeth by the then Lord Chief Justice of the Court of Common-Pleas the Lord Chief Baron and Whiddon Browne and Corbet Justices Carus the Queens Serjeant and Gerrard her Attorney General upon a question put unto them by the Lord Keeper of the Great Seal of England that in case of Piracy or other the like crimes the Queen might in the intervals or vacancy of a Lord Keeper of the Great Seal of England by a necessity of doing Justice without a Commission granted unto others to do it punish such offenders although the Statute made in the 28th year of the raign of King Henry the 8th Ca. 15th doth direct Piracy to be tryed by Commission And it was allowed to be Law in a Case put by King James that where an Affray or Assault was made by any in the Kings presence the King
untill it was by that prudent Prince restrained and limited to the Authority and Jurisdiction which it now enjoys was much more large and extensive than now it is and that of the Lord Chamberlain of the Kings House whose power and priviledge over that part of the Kings Servants which are under his Authority being exempt from that of the Lord Steward having been not by any Act of Parliament prohibited may not be thought to exceed the power and auâ—hority inherent in their Offices and places when they shall punish or commit to prison any who shall attempt to violate or infringe the honour and priviledges of the Kings House or Servants derived unto them from his Supreme Authority who having Ordinariam Jurisdictionem in regno suo pares non habet neque superiores an Ordinary and Supreme Jurisdiction and hath neither Peer nor Superior may as well protect his Servants in his affairs and business in his House or about his Person and punish any that shall hinder them therein as the Judges in his Courts of Justice who neither have or can claim any other power or authority than what he delegates or entrusteth them withall do upon all occasions in the Case of their Officers Clerks or menial Servants They therefore who shall so much suffer their reason and understanding to wander and be mislead as to deny the Kings most Honourable Privy Councell or any other Court within their Cognisance Power and Authority tueri Jurisdictionem such a coercive power as may support their Jurisdiction may think but never find they have any ground or cause for it and if they please to tarry for a conviction untill the never failing unhappy consequences shall bring them too late to acknowledge that which in viridi observantia by late abundant sad experiments is more then a little visible in the disorders of the present Church Government occasioned by the reverend Governors want of power who having their hands as it were tyed behind them are made to be as good old Ely admonishing and reproving to no purpose and how little the directive or commanding Power of Laws will signifie where the coercive shall be absent may bitterly repent it And will meet with as little reason to second or assist their opinion that a priviledged person imprisoned contrary to his priviledge is so in the custody of the Law as not to be able to claim or make use of his priviledge to release or discharge him when the frequent use of discharging men out of prison by Habeas Corpus Supersedeas or Writs of Priviledge and their Bayles or Sureties given for their appearances discharged And in matters of Parliament Priviledge can teach and prove the contrary for in the Case of Trewynniard a Burgess of Parliament in the Court of Kings-Bench in Easter and Trinity Term in the 38th year of the Raign of K. Henry the 8th the said Trewynniard was discharged by his Priviledge although he was arrested upon an Utlary after Judgement and the Judges of the Court of Kings Bench did adjudge and declare That every Priviledge is by prescription and every praescription which soundeth for the Common-weal is good although it be a prejudice to any private person And that such a priviledge hath been alwayes granted by the King to his Commoners at the request of their Speaker the first day of the sitting of Parliament And it is common reason that forasmuch as the King and all the Realm hath an interest in the Body of every of its Members it seemeth that the private commodity of any particular man ought not to be regarded for it is a maxime That magis dignum trahit ad se minus dignum the more worthy is to be preferred before the lesse and concluded That the Parliament is the most High Court and hath more Priviledges then any Court of the Realm and that in such a Case every Burgess is to be priviledged where the Action is but at the Suit of a Subject and that by such a temporary discharge the Execution is not discharged but remaineth When as men protected that were not the Kings Houshold Servants had their Protections allowed aâ—ter the commencement of the Action sometimes after Issue joyned at other times of the nisi prius or Triall at other times after the Verdict given and sometimes at the dayes in Banck and where any Defendant neither protected or priviledged was imprisoned he was not so believed to be in the Custody of the Law but that the Judges or any one Judge of the Court out of which the Process or Writ issued might not as well out of the Term as in the Term grant in their Subordinate Jurisdiction a Supersedeas quia improvià e or erronice emanavit because there was some Error or mistaking in the awarding or granting of the Writ by which he was taken And those Authentique Books of the Register of Writs old and new Book of Entries and the presidents therein contained will sufficiently testifie that arrests of priviledged persons and the goods or persons of priviledged persons have been and ought to be discharged from Attachments Arrests and Imprisonments and that which they would call the Custody of the Law by Habeas Corpus Supersedeas or Writs of priviledge and their Bayles or Sureties given for their Appearances discharged But however the pride and disrespectfull and disobedient humors of too many of our Nation be now so much in fashion as to quarrell with every thing of Authority and the Regalities of their Soveraign the dayes of old and Ages past will evidence that the before mentioned Priviledges of the Kings Servants in Ordinary were for ought appears to the contrary believed to be so legall and reasonable CHAP. VIII That the aforesaid Priviledge of the Kings Servants in Ordinary hath been legally imparted to such as were not the Kings Servants in Ordinary but imployed upon some temporary and casuall affairs abroad and out of the Kings House AS it was desired and thought fit and necessary to be communicated to such as were not the Kings Servants in Ordinary or his Domesticks but only imployed as extraordinaries upon some of his special affairs or occasions which were but Temporary and to that end it was requisite that some signification or notice should be given that they were so imployed and that they should not be arrested imprisoned or disturbed in it but be protected from it the like being also done when any of the Kings Servants in Ordinary where imployed out of the Kings House or Pallace by their Writs of Protection under the great Seal of England for otherwise probably it would not have been known that they were his Servants either ordinary or extraordinary or what was their business And therefore in the Register of Writs a Book in the Statute of Westminster the second made in the 13th year of the Reign of K. Edward the first in the year of our Lord 1285 called the Register of the Chancery
of King Henry the sixth the Commons in Parliament were so unwilling that their own concernments should hinder any of the Kings affairs as they did petition him That John Lord Talbot purposing to serve the King in his Warrs in France a Protection with the Clausa volumus might be granted unto him for a year and that by Parliament it might be ordained that it it be without the exception of Novel disseisin and to be put under the Great Seal of England with other Immunities whilst he be so in the Kings service which the King granted Provided that the said John Lord Talbot and Margaret his Wife Edward Earl of Dorset and others named should not enter upon any Lands whereof James Lord Barkly and Sir William Barkley his son were seised the first day of that Parliament or bring any Action concerning the same And so little desired the heretofore too powerfull Clergie of England to extend their power where they legally and inoffensively might do it CHAP. XIII That the Clergy of England in the height of their Pride and Superlative Priviledges Encouragements and Protection by the Papal over-grown Authority did in many cases lay aside their Thunderbolts and power of Excommunications appeals to the Pope and obtaining his Interdictions of Kingdomes Churches and Parishes and take the milder modest and more reverential way of petitioning our Kings in Parliaments rather than turn the rigors of their Canon or Ecclesiastical Laws or of the Laws of England against any of the Kings Officers or Servants AS they did in the 14th year of the Reign of King Edward the third although by the Statute made in the 28th year of the Reign of King Edward the first making some Actions and Injuries which they then complained of to be Felony they might without their petitioning in Parliament have had ample and easie remedies petition the King in Parliament against some grievances and oppressions done by some of the Kings Servants to people of holy Church by his Purveyors and Servants amongst which were the abuses done by his Purveyors in taking the Corn Hay Beasts Carriage and other goods of the Arch-bishops Bishops Parsons and Vicars without the agreement and good will of the Owners and did thereupon obtain the Kings Letters Patents under the Great Seal of England which in the Parliament Roll is called a Statute and is as an Act of Parliament printed among the Acts of Parliament did declare That he took them and their possessions into the especial Protection of him and his Heirs and Successors and that they should not be any more so charged nor to receive into their houses Guests nor Sojourners of Scotland nor of other Countreys nor the Horses nor Dogs Faulcons nor other Hawks of the Kings or others against their will saving to the King the services due of right from them which owe to the King the same services to sustain and receive Dogs Horses or Hawks In a Parliamant in the first year of the Reign of King Richard the second although divers Laws in force had provided them remedies of course which needed no petitioning they did petition the King That they were upon every temporal suggestion arrestâ—d into the Marshalsea and paid for their discharge 6 s. 8 d. where a Layman payeth only 4 s. unto which the King did answer Let the party grieved complain to the Steward of the household and they shall have remedy And did in that but follow the patterns of Loyalty Prudence and self preservation cut out and left unto all true hearted Englishmen by their worthy and pious Ancestors and Predecessors who when the Tenures in Capite and by Knight Service which obliged all the Nobility and many thousands of the best part of the Gentry to follow their Prince to his Warrs abroad or defend him and his honour at home did in their duty to him and the care of their own estates and concernments with their numerous well-wishing and dutifull Tenants attending them follow him into the Warrs and Voyages Royal and remained there by the space of forty dayes at their own charges and afterwards as long as they lasted at the the Kings which must needs be a great obstruction to many mens Action or the recovery of their Debts or Rights and much better understand that universal Axiom and Rule of the Laws of Nature Necessity and Nations then the late ill advised Lord Mayor and some Citizens of London did who in the late dreadfull fire in the year of our Lord 1666. did to save the pulling down of a few houses to prevent the fury of a most dire and dismal fire and not a seventh part of their goods did see but too late the necessity of pulling down some houses and when they might have endeavoured it would allow it to be warrantable by the Lord Mayors order but not the Kings and in that fond dispute and his Timidity most imprudently suffer and give way to the burning down of many thousand houses and converting into ashes almost all that once great and flourishing City that privata cedere debent publicis every mans private affairs were to be laid aside and give place to the publick being the best way of self preservation And did not as they would do now rush upon Arrest or Imprison either the Kings Servants or such as were imployed by him or unto whom he had granted his Writs of Protection without asking leave of him but with a modesty and reverence becoming Subjects plicate him for a Revocation or if they did not or could not purchase it that way did sometimes become Petitioners in Parliament for some regulations in Protections granted upon some special and temporary imployments to such as were not his Servants in ordinary not for a total abolition or to take away that part of the Kings Prerogative in order to the Government and their own well being the answers whereunto shewed as much care in the King and his Councel as might be to give them content and satisfaction and at the same time not to depart from or lessen the Rights of the Crown more than was meerly necessary or in grace or savour for that particular time occasion or grievance to be granted or remitted unto them And no less carefull were the Judges in former ages in their delegated Courts and proceedings in Justice to pay their respects to the service of the King and likewise to his Servants or any other imployed therein CHAP. XIV That the Judges in former times did in their Courts and proceedings of Law and Justice manifest their unwillingness to give or permit any obstruction to the service of the King and Weal Publique WHen Bracton declares the Laws and Usage of the Kingdome to be in the Reign of King Henry the third and King Edward the first that Warrantizatur Essonium multipliciter quandoque per breve Domini Regis ubi non est necessitas jurare cum Dominus Rex hoc testatur per literas suas quod
a Protection cast quia moraturus that he remained with the Earl of Worcester who was Deputy to the Duke of Clarence was to be allowed for if the Duke by his Commission had power to make a Deputy it is reason that he which was with the Deputy in Service should be excused by the Protection In Trinity Term in the 11th year of that King where one of the Vouchees made a defalt the other had a Petit Capias awarded against him at the day of the retorn of the Petit Capias he that made the defalt brought a Protection which was adjudged to enure to them both In Hillary Term in the 21th year of the Reign of that King a Protection being granted to T. Rokes a Certiorari was directed to the Sheriffs of London to enquire if he attended in the Service of the King according to the tenor of the Protection or followed his own business and the Sheriffs of London certified that he did not attend the Service of the King but remained at London attending his own business whereupon the Plaintiff had an Innotescimus directed to the Judges of the Court of Common Pleas to repeal the said Protection and he shewed the Writ to the Court and prayed a resummons against the Defendant and had it In Hillary Term in the 21th year of the said Kings Reign after issue joyned upon a Writ of Entry and the Jury had appeared the Counsel for the Defendant prayed the Court to grant an Habeas Corpus for him and rhe Justices demanded of the Plaintiff and the Jury if they would agree unto it who consenting thereunto the Habeas Corpus was granted and the morrow after when the Jury appeared a Protection quia moraturus that the Defendant was in the Kings Service at Calais was brought to which being excepted that he was under age and that it appeared by his own sheweing that he was in prison it was answered that the Protection was of Record and to be believed before any such allegation and afterwards the Justices demanded several times of the Defendants Counsel if they would agree that thâ— Demandant and the Jury should be adjourned until the next day to the intent as was believed that the Demandant might in the mean time procure a repeal of the Protection which they supposed to be false and the Counsel for the Plaintiff praying time till the morrow to be advised touching the Protection which the Justices granted the Justices perusing again the Protection found that there was no default therein and said they ought to allow it which was done accordingly and the Jury was discharged And in the same year it was adjudged and declared to be Law that where a Tenant in a Precipe quod reddat had unduly purchased a Protection of the King whereby the Plaintiff was put without day and prejudiced that in that case he might have a Writ of disceit In Michaelmas Term in the fourth and fifth year of the Reign of King Philip and Queen Mary in a Writ of Entry in Le per brought by one Huggard against Knevet an Essoin was cast by one Anthony Knevet for Tho. Knevet that he was in the service of the King in the parts beyond the Seas and day thereupon given and some doubt arising amongst the Judges about the warranty of the Essoin and the form thereof and amongst the precedents which could be found that in the 35th year of the Reign of King Henry the sixth wherein the Abbot of Westminster was Plaintiff against VV. Yeoman of the Kings Buttery under the Kings Privy Seal not pleasing them but being adjudged insufficient the Judges were so unwilling to disappoint the purpose and expectation of the Supreme Authority as they themselves framed and devised a Writ to excuse the absence of the said T. Knivet And although in Trinity Term in the same year the Queen who began her Reign the 26th day of July 1553. did by her Attorney General by advice of the Lords of her Privy Councel demand the opinion of the Judges of the Court of Common Pleas if a prisoner in the Fleet upon an Execution who might be very useful in her wars might be licenced by the Queen with his Keeper to go unto Barwick for the defence thereof it was resolved by all the Judges of both the Benches that he could not be dismissed by her Protection for that he was there to be kept in safe custody Yet in the fourth year of the Reign of Queen Elizabeth she did by her Letter under her Signe Manual and Signet directed unto Tirrel Warden of the Fleet cause Thurland who was in Execution for debt to go with his Keeper as hath been before mentioned about some affairs of hers and the publique So tender were the Judges in the antient and past ages of the Supreme Authority they sate under and the honor of their Princes which imparted unto them so much of the honor and dignity they enjoyed and so careful of the safety and concernment of the publique which was or should be the greatest care and interest of every man and had such an awe and veneration of Majesty in which the Supreme Authority and governing power resides as where they perceived any Essoin of the service of the King unduly cast or Protection not legally granted as by mis-information or necessity of preserving the publique peace and tranquility or upon reason of State they might sometimes happen they did not presently reject the Writs of Protections of our Kings but remit those that excepted against them to petition for their repeal by Innotescimus and where Essoins of some imployed in their service were cast did admit them put the cause without day and order the Essoiners in the mean time to bring their Warrants which if they failed a resummons of them was awarded and the fine of twenty shillings penalty imposed by an Act of Parliament sometimes paid and at other times pardoned and as careful of the high Authority of his Soveraign was Sir Orlando Bridgeman late Lord Chief Justice of the Court of Common Pleas when he refused to bayl upon a Habeas Corpus one that was committed by the Lord Chamberlain of the Kings Houshold for Arresting one of the Kings Servants in ordinary without licence and advised him to submit himself to the Lord Chamberlain that humour and fashion of kicking against the Supreme Authority and wrastling with the Lords Anointed in seeking to be bayled upon Writs of Habeas Corpus granted by the inferiour and delegated powers for commitments upon contempts by the Superiour being so novel and unusual as the Books and Records of the Law or our Courts of Justice have afforded us no mention at all or very little of them until the Reign of King James or the beginning of the Reign of King Charles the Martyr when by the unhappy arguments upon the case of the Habeas Corpora in the beginning of the Reign of King Charles
your selves within the limits of our duty we will be as careful to maintain and preserve your lawful liberties and priviledges as ever any of our predecessors were nay as to preserve our own Royal Prerogative Et ab hac radice Regalitatis rectae Rationis And from that root of Regality and right reason only Foundation and Original though Sir Edward Coke is willing to mistake it when he would have it to flow from a respect only due to Justice and the Courts thereof have proceeded the great reverence and awe due unto the Superior Courts of Justice at VVestminster Hall for lesser or inferiour Courts do neither deserve nor claim it when the Judges do sit there in their several Superior Courts under the Shadow and protection of the Royal Oak Whence also came that very necessary custom and usage to be bare uncovered and respectful in their words and behaviour to one another in the Judges presence as well as unto the Judges themselves and from whence and the reflex of Supreme authority have the Judges power to fine or imprison such as mis-behave themselves therein as in the case of VVilliam Botesford fined to pay two Marks by the Justices of the Court of Kings Bench for threatning to kill one Hawis Gaygold for prosecuting him in an action of trespass and using those Menaces in aula placitorum in presentia Justic. ipsius Regis Curiae suae contemptum in VVestminster Hall in the presence of the Kings Justices and in contempt of the Court and was committed to the Marshall and that at an Assize holden at Northampton in the third year of the Raign of King Edward the third John Blundell was attached ad Respondend tam domino Regi quam VVillielmo de Towcester Attorn Thomae Comitis Mariscalli Angliae de placito quare insultum fecit super ipsum in domini Regis curia contemptum per verba contumeliosa ipsum vili pendebat in retardationem prosecutiones negotiorum praedict comitis aliorum to answer aswell unto the King as VVilliam of Towcester Attorny for the Earle Marshall of England wherefore he made an assault upon him in contempt of the King and his Court and did with many scandalous words revile him to the disturbance of the business of the said Earle and others Super quo Juratores de consensu partium praedict instanti die transgressionis impanellat whereupon a Jury being the same day of the trespass and offence by the consent of both parties impannelled the Jury found that the said John Blundell was guilty and he was committed to prison fecit finem domino Regi per dimid Marcae per pleg ' c. qui manuceper quod bene se gereret pacifice versus predictum VVillielm alios quoscunque and was fined to pay half a Mark to the King and gave bayl for his good behaviour towards the said William and all others And whence all the Judges are impowred to free such as are arrested in the face or sight of the Court though it be upon process granted by themselves or any other Court in the Kings name or upon the most just and legal action as likewise to aggravate or make the punishment greater for offences done in the face or contempt of the Court and that all such misdemeanors are in Indictments or Writs brought or commenced upon them said to be in contemptum domini Regis curia suae in contempt of the King and his Court from which or the like ground or reason came also that great honor respect and care of Judges in the superiour Courts by the Statute of the 25 th year of the Raigne of King Edward the third which makes it to be high Treason to kill any of them with a forfeiture of all their lands and estates as in case of Treason committed against the King and no less then misprision of Treason for any to draw a Weapon upon any Judge or Justice sitting in the Courts of Chancery Exchequer Kings Bench Common Pleas or upon Justices of Assize or Justice of Oyer and Terminer although the party offending do not strike for which he shall lose his right hand all his goods suffer imprisonment and forfeit his Lands during his life and no less a punishment for rescuing a prisoner in or before any of the Courts committed by any of the Judges or arrested by any of their Writs Mandates or Process the no small punishments inflicted for abusing of Jurors or for beating a Clerk in vemendo versus curiam in his way to one of those Superior Courts where he was imployed or for threatning a Counceller at law for acting or pleading for his Client the priviledge of the Barons Officers and Clerks of the Exchequer granted or allowed by King Henry the First and to this day not to be denied them not to pay Toll or Custome for any thing they shall buy for there necessary uses or occasions nor to be compelled to appear at Hundred Courts Assizes or Sessions which the Officers Clerks and Ministers of the other Superior Courts are likewise indulged nor to bear Offices in the parish wherein they live as Constable Church-Warden c. either in the Vacations or Term Times and that the Barons of the Exchequer Et omnes alii ministri ibidem ministrantes sive de clero sint sive Regiae Cur. qui assident as the words of their Writs of priviledge are which exempts such of the Clergy from the dominering power in those dayes of the Ecclesiastical Court ex mandato ad alias quaslibet causas extra Scaccarium sub quibusounque Judicibus vero Judice sub quo lis mota fuerit sive sit Ecclesiastious sive Secularis non evocentur si forte vocati fuerunt ratione regiae potestatis publica authoritate tam ex dignitate Regia quam consuetudine antiqua excusantur and all the Officers Clerks and Ministers sitting in that Court or attending therein by the Kings command shall not be constrained to appear or attend upon any causes actions or suits against them before any Judges whatsoever whether Ecclesiastical or Secular and if they be cited or called before such Judges by reason of any of the Kings Writs or Process are aswell in respect of the Kings Royal Dignity as also by antient custome to be excused the Writs of priviledge granted unto them where they are prosecuted in any other Court Pleas or actions concerning freehold appeal or felony only excepted mentioning as they do in case of priviledge of the Courts of Chancery Kings Bench and Common Pleas that if the Plaintiffs have any cause of action except as is before excepted they may if they please prosecute or bring their actions or complaints against such priviledge person in the Court where he is attendant From which Royal Fountain and Original and the care of publick preservation flowed or was necessitated that priviledge now and heretofore allowed to the Kings Guards
of our Kings and Princes CHAP XVIII That many of the People of England by the grace and favour of our Kings and Princes or a long permission usage or prescription do enjoy and make use of very many immunities exemptions and priviledges which have not had so great a cause or foundation as those which are now claimed by the Kings Servants ANd do and may more inconvenience such part of the People which have them not than the little trouble of asking leave or licence to sue or prosecute at Law any of the Kings Servants as the freedom of Copy-hold Estates not long ago three parts in four of all the Lands in England but now by the making and enfranchising of too many Freeholders reduced to less than a fourth part from extents or the incumbrances of Judgments Statutes or Recognizances Not to permit upon any one Creditors Judgment any more than the Moiety of Free-hold Lands to be extended that old part of our English mercy to Men impoverished or indebted which to this day and many hundred years before hath been constantly observed nor to seize or take in Execution unless for want of other Goods and Chattels the Beasts and Cattel of their Ploughs and Carts derived unto us from the law of Nature or Nations or the providence and compassion of Nebuzar-adan the chief Marshal or Captain of the Army of Nebuchadrezzar King of Babylon who when he had taken and destroyed Jerusalem and carried away captive to Babylon many of the people of Judah and Jerusalem left certain of the poor of the Land for Vinedressers and for Husbandmen and from the reason equity and moderation of the Civil Law Or when the Laws or reasonable Customs of England will not permit a Horse to be destrained when a Man or Woman is riding upon him an Ax in a Mans hand cutting of Wood the Materials in a Weavers Shop Garments or Cloth in a Taylors Shop Stock of Corn or Meal in a Mill or Market or Books of a Schollar the many and great Franchises Liberties Exemptions and Priviledges some whereof have been already mentioned of about six hundred Abbies and Priories the many Liberties and Franchises in every County and Shire of England and Wales which if no more than five in every County one with another would make a total of more than two hundred and fifty and if ten amount to the number of five hundred besides those of above six hundred Cities and Corporations which are not without great Priviledges Immunities Exemptions and Liberties which do occasion more trouble and loss of time by sueing out of Writs of Non omsttas propter aliquam libertatem to give power to the Sheriffs to Arrest within those Liberties than the attendance upon a a Lord Chamberlain or other great Officer of the Kings Houshold to obtain leave to Arrest any of the Kings Servants would bring upon them those many thousand Mannors to which are granted Court-Leets and Court-Barons with their many other Liberties and Franchises little Judicatories Sace and Soke authority and a Coercive power over their Tenants Free and Copy-hold and Free Warren granted to many of those Lords of Mannors whose Hunting and Hawking brings many times no small prejudice to their Neighbors or Tenants the Franchises Liberties and priviledges of the City of London given or permitted by our Kings that no Citizen shall be compelled to Plead or be Sued or Prosecuted at Law out of the Walls of their City and their Prohibitions by Acts of Common Council which do prohibit Freemen upon great Penalties which have been severely inflicted to Sue one another out of the City when they may have their recovery in their own Courts and every Freeman bound thereunto by Oath at their admission to their Freedom their priviledge of Lestage to be Toll-free of all which they buy or sell in any Market or Fair of the Kingdom are not to be constrained to go to War out of the City or farther than from whence they may return at Night that none but such as are free of the City shall Work or Trade within it or the large extended Liberties within the circumference thereof That of the City of Norwich to have the like Liberties as London the Liberties of the City of Canterbury City of Winchester and Towns of Southampton and Derby not to be impleaded out of their Cities or Corporations That of the Hospitallers and Knight-Templers and many others saith Bracton not to be impleadid but before the King or his Chief Justice That of the University of Oxford That no Schollar Servant or Officer to any Colledge or Hall in the Vniversity or to the said Vniversity belonging shall be Arrested within the City or the Verge or Circumference thereof extending from the said University and Town of Oxford Ab orientali parte ejusdem Villae usque ad Hospitalem sancti Bartholomei juxta Oxon ab occidentali parte ejusdem Villae usque ad Villam de Botelye a parte Boreali ejusdem Villae usque ad pontem vocat Godstow Bridge ab australi parte ejusdem Ville usque ad quendam Boscâ—m vocat Bagley sic in circuitu per Loca praedicta quemlibet locum eorundem in perpetuum From the East part of the said Town unto the Hospital of St. Bartholomew near Oxford and from the West part of the said Town to the Village of Botely and from the North part of the said Town of Oxford to Godstow Bridge and from the South part of the said Town of Oxford to a certain Wood called Bagley and in the circumference of the said City and University extending unto all the Places aforesaid and every of the said Places for ever but by Process or Mandate of the Chancellor of the University of Oxford or if prosecuted or impleaded in the High Court of Chancery or in the Court of Kings-Bench where the Party prosecuting hath been a Sub-Marshal of the said Court and a Commissary of the Chancellor of that University hath been Indicted forbeating of him or in any of the other Courts of Justice at Westminster or any other Court of the Kingdom do by their Certificate under their half Seal as it is called that the Defendant is a Schollar or belonging to the Vniversity or some Hall or Colledge therein demand and obtain Cognizance of the Action which with other of that famous Universities Priviledges were in the thirteenth Year of the Reign of Queen Elizabeth confirmed by Act of Parliament that of the University of Cambridge being not without those or the like franchises priviledges and immunities against which or many more of the like nature which might be here recited there ought not to be any murmure or repining as there never was or but seldom or very little by alledging any prejudice loss or inconveniences which some have sustained thereby or may happen to particular Men by any of those or the like Franchises Immunities or Priviledges which
same time consider the damage which our Kings have suffered by their Grants to divers Abbeys as amongst others unto the Abbey of St. Edmonds-Bury in Suffolk which in a Plea betwixt that Abbot and the Bishop of Ely and his Steward in the sixth Year of the Reign of King Richard the First appeared by the Charters of King Edward the Confessor William the Conqueror and King Henry the First to be in general words all the Liberties which any King of England might grant the very large Priviledges of Common of Pasture and Estovers the later of which hath spoiled much of the Timber of the Kingdom in many vast Forrests and Chases their many deafforrestations and that of three Hundreds at once in the County of Essex at the Request and Petition of an Earl of Oxford their taking their Customs and Duties upon Merchandize Exported or Imported at small and priviledged Rates and manner of payment of Tonnage and Poundage and by the granting away of so many Franchises Exemptions Priviledges view of Frank Pleg and Liberties which the Commons in Parliament in the one and twentieth Year of the Reign of King Edward the Third thought to be so over-largely granted as they complained That almost all the Land was Enfranchised and Petitioned That no Franchise-Royal Land Fee or Advowson which belong or are annexed to the Crown be given or severed from it And so very many more Immunities Franchises and Priviledges which since have been indulged and granted to very many of the People which like the dew of the heavenly Manna which so plentifully covered the Camp of the Children of Israel and lay round about them have blessed many of the English Nation and their after Generations as the dew of Hermon and that which descended upon the Mountains of Zion And so many were those exemptions customs prescriptions and immunities Quae longi temporis usu recepta quaeque ratio vel necessitas suaserit introducenda rata stabilita fuerinâ— quasi tanto tempore principis consensu Judâ—cioque probata Which by a long accustomed use introduced by reason or necessity as the Learned Baldus saith concerning those which by the Civil Law and the Law of Nations have as approved by the consent and Judgment of the Prince been ratified and permitted as they would if faithfully and diligently collected as my worthy Friend Mr. Tho. Blount hath done very many of them in his Learned and laborious Nomo Lexicon not onely put Posterity in mind how very many and almost innumerable they are and how much they ought to be thankful for them but that their Forefathers did without any the least doubt or scruple believe that the Kings and Princes which granted them had power enough to do it And ought not to have their ways or passages stopped or blocked up by those Opinions of Sir Edward Coke and the rest of the Judges in contradiction of the late Learned Doctor Bancroft Arch-bishop of Canterbury in the case of Prohibitions argued and debated before King James and his Privy Council and Council Learned in the Law in Michaelmas Term in the fifth Year of his Reign that Rex non Judicat in Camera sed in Curia the King is to decide and determine the Causes and Controversies of his Subjects in his assigned and Commissionated Courts of Justice but not out of them or in his Palace Court or Chamber nor take any Cause out of his Courts and give Judgment upon it and that no King after the Conquâ—st ever assumed to himself to give Judgment in any Cause whatsoever which concerned the administration of Justice within the Realm and that the King cannot delay Justice or Arrest any Man neither Arrest any Man for suspicion of Treason or Felony as other of His Lieges may Wherein the Men of new Notions who in the Itch and Hope of Gain or the good will and applause of a Factious Party can like the after hated Ephori of Sparta upon all occasions oppose the Kings legal Rights and Prerogatives and thinking to satisfie others as well as themselves in making ill-warranted matters of Fact the Directors or Comptrollers of the Law may suspend their adoration of those Errors in that so called twelfth Report of Sir Edward Coke which being published since his Death have not that candor or fair dealing of Plowden's Commentaries or the Reports of the Lord Dyer or many other of his own Reports but concealing the Arguments and Reasons urged by the Opponents doth onely give us a Summary of his own and the other Judges Opinions which we hope may vanish into a mistake and meet with no better entertainment from those Reverend Judges and Sages of the Law if they were now in the Land of the Living to revise and examine those Opinions so Dogmatically delivered then a Retractation or Wish that they had never seen the Light or walked in the view of the Vulgar and advise those who would gladly make them the Patroni of so many ill Consequences as either have or may follow upon such Doctrines to build upon better Foundations and not to adhere so much unto them or any others though they should be willing to seem to be as wise therein as Socrates or Plato but rather subscribe to the Truth CHAP. XX. That the power and care of Justice and ihe distribution thereof is and hath been so essential and radical to Monarchy and the Constitution of this Kingdom as our Kings of England have as well before as since the Conquest taken into their Cognizance divers Causes which their established Courts either could not remedy or wanted power to determine have remoued them from other Courts to their own Tribunals and propria authoritate caused Offenders for Treason or Felony to be Arrested and may upon just and legal occasions respite or delay Justice WHen the King is Author omnis Jurisdictionis the Author of all Jurisdiction which is the specifica forma virtus essentialis Regis qua se nequit abdicare quamdiu Rex est neque vis illa summae ditionis potestatis Regiae dignitate citra pernitiâ—m ejus interitum separari distrahique potest Speciâ—ick form and essence of Kingly Majesty which the King cannot alienate or depart from as long as he is King nor may that Jurisdiction or supream Power be severed from the Regal Dignity without the ruine or destruction of the King as Mr. Adam Blackwood a Scotchman hath very well declared in his Book against Buchanan his Learned more than Loyal Countrey-man concerning the Magistracy Lords of Sessions and Judges in Scotland That all Judges and Magistrates Ne in Civilibus quidem causis nullam nisi munere beneficioque Regis sententiae dicendae nullam Juris judiciorum potestatem habent derived even in Civil Causes all their power and authority from the Kings Authority and without it had no power to give a Sentence or Judgment quicquid enim Magistratuum est quicquid judicium
that School and be ready to make Affidavit of those his pretended Axioms may do well before they do too greedily imbibe them to remember that Maxime in our Law as well as the Caesarean that Nemâ— plus Juris in alium transferre potest quam ipse habet No man can give unto another a greater Power and Authority than he hath himself and that Sir Edw. Coke himself hath acknowledged that a Derivative cannot be greater than the Power and Authority from whence it was deriv'd And to give themselves and others the reason why the Kings of England should have a Comptroll and rectifying Super-intendency by the Common Law Judges own confessions over his Admiralty and Ecclesiastical Courts and not of his Common Law Courts and other Judicatories or may not send his Prohibitions to Superior Courts where they intermeddle beyond their Cognizance as he doth in the Admiralty and Ecclesiastical Courts and as he may do in all inferior Courts and by what Rule Act of Parliament or positive Law they are to do it in the one and are restrained in the other or left at liberty in the one and not in the other And whether he may not in Civil Actions for some reasons of State Justice or Equity do it as well as in the Reign of King Henry the Third after the making of Magna Charta it was done when Bracton takes it for a Rule that in advenâ—u Justitiariorum ad omnia placita ex Jurisdictione sibi delegata pertinent ad eos audire querelas singulorum Petitiones ut unicuique Justicia â—iat that in the Circuit of the Judges it belongeth unto them by their Jurisdiction delegated to hear all men and their Complaints and Petitions that Justice may be done to every man yet if any prosecuted or complained of without the Kings Writ or Precept injuste arctatus fuerit shall be unjustly forced to answer Subvenitur ei per taâ—e brev Domini Regis Rex Vicecom salutem precipimus tibi quod non implacites nec implacitari permittas talem de libero tenemento suo in tali villa sine speciali Precepto nostro vel Capitalis Justiciarii nostri The King may relieve him by such a Writ viz. that is to say The King sendeth greeting to the Sheriff We command you that you do not implead or suffer to be impleaded such a one of his Free-hold in such a Town without Our Writ Precept or Command or of Our Chief Justice Or as that King did where an Appeal was brought in the County of York for a Robbery and remov'd per Preceptum nostrum by the Kings command before his Justices at Westminster which S r Ed. Coke says is always to be understood to be of the Court of Common-Pleas and being heard the Party appealed was acquitted and having been appealed for the same Fact in the County of Essex and after that Acquittal aforesaid outlawed in Essex the King quoniam Error prejudicare non debet veritati to the end that Error might not prejudice Truth did Consilio Magnatum by the advice of his Great Men pronounce that Outlawry to be null and void And in another Case where the Justices Itinerant upon an Appeal brought for the death of a mans brother and he that was appealed being a timorous man had fled thereupon so as by the command of the said Justices he was afterwards outlawed and the man that was said to have been killed was found to be alive and in health the King seeing that there was no just cause of the Utlary did pardon it and the flight and commanded that in a full County-Court where he was outlawed the man said to be killed should be produced and that then eum inlagari faciat ad pacem Regis recipi the Sheriff should in-law the Defendant and receive him to the Kings peace and publiquely proclaim that he was received into the Kings grace and favor And if they will read Bracton quite through and diligently observe and compare one place with another and that wherein he is positive and concludent they need not go far to seek how easie it is to mistake Reason and overâ—run and reject Truths as the Rabbies and Proselites of the Rebellious Assembly call'd The Long Parliament did not long ago do by suffering their prejudice fancy or sinister ends to rove and catch a piece of that Ancient Loyal and Learned Author to furnish out their disloyal Arguments and Purposes without any further reading or enquiry into him where they may see the contrary asserted and abundance of Confutation of those and many other Errors they were so much in love with and are so willing to espouse The Authorities offered to prove the Opinion of Sir Edward Coke and the Judges in that Case of Prohibitions in Michaelmas Term in the fifteenth year of the Reign of King James before-mentioned yielding if well examined no support to that debile fundamentum weak and insufficient Thesis or intended Foundation and will as unsafely be relyed upon as those many Conclusions which he hath as to many things drawn from the counterfeit Modus tenendi Parlementum abundantly prov'd to be so both by Mr. Selden and Mr. Pryn about the latter end of King Henry the Sixth and from his over much admired and too often cited but suspected the so called Mirror of Justice written by Andrew Horne many hundred years after the Reign of King Alfred of much of the matters wherin Asser Meneuensis who lived in his Court and wrote of his Actions Brompton and many of our old English Writers are altogether silent and as little satisfactory as the Resolution of himself in Trinity Term in the fifth year of the Reign of King James concerning a Commission to inquire of Depopulations to be amongst other defects suppos'd to be therein that the said Commission was against Law 1. because it was in English 2. because the Offences inquirable were not mentioned in the Commission but in a Schedule annexed the reason and authority whereof lies as hidden and difficult as the most dark and envelopped Riddles and Aenigma's of Sphinx and as unintelligible as the most mystical Caballa of the opinionated Rabbins and as unlikely to be assisted by any either Law or right Reason as another Opinion or Hypothesis of Sir Edward Cokes and others That the King cannot create a Manor when those many thousand Manors in England have not with their large Liberties and Priviledges been granted by Act of Parliament but by the Favor and Indulgence of our Kings or by their tacite Permissions where any of those Manors have as parcel of some others or otherwise been onely upheld by Custom or Prescription All which with many other of his Doctrines and Opinions would not have been welcomed or caressed by the former Ages who well unstood the difference betwixt the Edicta and Rescripta Principum the Edicts and Legal Mandates of Sovereign Princes with the high esteem respects and obedience is due unto them
of the Kingdoms of Cyprus and Candie now under their Subjection are said to have Testé Couronné to come into the Court-yards with their Coaches which the little Republique of Genoa in Italy hath notwithstanding their contest for it been lately refused both in France and Spain in the latter whereof a Monarchy and Kingdom much inferior to England it is a great Honour amongst the Domesticks and Servants of that Court to be a Gentleman de la Boca for that such may attend the King at Dinner or Supper and have at other times a priviledge to come into the Rooms of the Palace as far as a certain Hall beyond which no man is to pass although there should be no Guards or Ushers to hinder it And no longer ago then in the month of December 1666 the Lady or wife of the Spanish Embassador in the Court of the Emperor of Germany at Vienna complaining of the Emperors High Chamberlain that she was denied by the guards to enter into the Anti-chamber of the Empress in her Chair or Sedan she was answered by him and informed also by a message from the Emperor that it was the custom of that Court not to permit the Empress her self that Liberty which very necessary regard and respects always had to the Courts or Houses of Soveraign Kings or Princes might besides their safeties which have not seldom been endangered by Brawls and Tumults swelled up into a multitude be the reason that in imitation or reviving of those old Laws of King Alfred and Canutus the Act of Parliament In the 33 th year of the Raign of King Henry the eight did ordain the loss of the Right hand of any striking or making blood-shed within any of the Kings Houses or Palaces or the virge thereof Noblemen or others striking only their Servants with a small stick or Wand for Correction or with any Tipstaff at a Triumph or in doing Service by the Kings Commandment or of any of his Graces Privy Council or head Officers excepted and that any such offences or Murders Manslaughters or malicious strikings should be tryed by a Jury of twelve of the Yeomen Officers of the Kings Houshold before the Lord Steward or in his absence before the Treasurer and Comptroller of the Kings Houshold and Steward of the Marshalsea for the time being And so tender have our Kings and Princes been of the Honour of their Princely Palaces and Seats and habitations of Majesty as they would not permit their Mercy to have any thing to do with their Justice or to intercede for any mitigation of their just indignation against such as would but in the least let loose their passions or Indiscretion to violate it witness the case communicated unto me by my worthy friend Sir William Sanderson one of the Gentlemen of His Majesties Privy Chamber in Ordinary of Mr. Mallet in the Raign of Queen Mary who being a Gentleman Usher Quarter Waiter of the Presence-Chamber and having rebuked one Mr. Pierce a Messenger of the Chamber for some Negligence in the Queens Service and being rudely answered to avoid the punishment for striking him if he should draw or inforce blood did spit in his face upon knowledge whereof the Lord Chamberlain of the Kings Houshold without any complaint of Mr. Pierce committed Mr. Mallet to the Marshal and after some time punished him in this manner the Lord Chamberlain standing under the Cloth of State uncovered in the presence Chamber with the Officers of the Houshold and others about him Mr. Mallet kneeled down at the lowest step and his offence in Order to his sentence being read unto him by a Gentleman Vsher of the Presence with this Praeamble viz. For excercising that Jewish Inhumane Act of Spitting upon Master Pierce your fellow Servant in Court in the sight and presence of the Cloth of Estate against the Dignity of our Soveraign Lady the Queens Grace the Honour of the Court and the Authority and Power of the Lord Chamberlain To which Mr. Mallet being still upon his knees answered with an Humiliation sorrow and Submission and craved Pardon of the Queens Grace for his fault Whereupon the Lord Chamberlain lightly Rapping Mr. Mallet upon the Pate with his white Staff who craved pardon for offending the Authority and Power of the Court Represented by the Lord Chamberlain Mr. Pierce was appointed to wave a Cudgel over Mr. Mallets head in sign of satisfaction for the wrong received of him And that being done Mr. Mallet was fined in a summe of money to the Queen and after a day or two released After all which the Chaplains and Clergy complaining that the holy Church was scandalized for that Jewish Action Mr. Mallet was ordered to do Penance in the Chappel Royal in a White-sheet holding a Wax Taper burning during the Office of Divine Service and after those punishments Executed upon him permitted to complain against Mr. Pierce for neglecting the Queens Service and Mr. Pierce was for answering Mr. Mallet rudely turned out of his Waiting or place and came not in again until Mr. Mallet was pleased to make it his Sollicitation and Request And so great a Respect was always given to the Kings Palace or Court as it was holden to be a punishment and note of Infamy to be Prohibited it and was in the 18 th or 21 th year of the Raign of King James a part of the Sentence given in Parliament against Lionel Earl of Middlesex Lord Treasurer of England for Briberies and Extortions that he should never come within the Verge of the Kings Court. And that blessed Martyr King Charles was in the midst of His over-great Lenity or Meekness so careful to preserve the Honours and due Respects to His Palace and Court as when Doctor Craig one of His Physicians had in the Kings Chamber given Mr. Kirk one of the Grooms of His Bed-chamber some offensive words and Mr. Kirk meeting him the same day in some of the Court-lodgings had struck him with a blow of his Fist and Doctor Craig complaining of it unto the King and the King referring it unto the Lord Chamberlain of His Houshold who after Examination of the Fact Remitted the Punishment of the Offence to the King He did in much Indignation Banish Mr. Kirk from the Court into which he was more then a year before he could by the Intercession of the Duke of Buckingham then the Great and Principal Favourite be re-admitted And that Pious and Excellent Prince was so apprehensive of any disrespects to His House and Palace as meeting one day or night the Earl of Denbigh then Lord Fielding in his Masking Suit as he was passing through the Privy Galleries towards the Banquetting House stayed him and turned him back to go a more Common-way And was no less watchful to prevent any thing which might be prejudicial or derogatory to the honour of the Garter whereof he was Soveraign in the Palace or House where his Honour dwelt As when at another time finding
cause in the same year Richard Horne of Watton in the County of Oxford to be arrested and taken into custody upon the complaint of Mr. Hiorne Deputy Steward of VVoodstock for not only refusing to furnish horses to carry the Kings Venison to Court he being Constable and required and of duty ought to do it but for reproachful and ill language or as was done not long before or after in his Reign by a Warrant under the hand of the L. Chamberlain for the apprehension of one that had spoiled or killed a Mastiff of the Kings when as our Laws have not yet had any prescript form or writs remedial for any of those or the like accidents at the Kings suit only for it would be no small disparagement to the Majesty of a King and supreme of such an antient Empire not to have power enough to redress complaints of that nature or to be enforced to put Embassadors to be Petitioners to his inferiour and delegated Courts of Justice which no Monarchy Kingdom or Republique in Christendom was ever observed to suffer to be done for that which their Superiors according to the Law of Nations ever had and should have power to grant without them for when our Laws which do not permit the King as a Defendant to be commanded in his own name under his own Seal and by his own writs or as a Plaintiff to supplicate those whom he commissionated to do Justice in his name and by his authority to all the meanest of his Subjects to do a parcel of Justice to himself when he wanted no remedies by his own Messengers or Servants to imprison any that should offend against his dignity and authority and in matters of his Revenue or for contempt of his Royal authority can by seisures or distress office or inquisitions process of his Courts of Exchequer Chancery Kings Bench Common-Pleas and Dutchy of Lancaster c. give himself a remedy is not to prosecute in any Actions at Law as common persons are enforced to do for our Kings should not certainly be denied their so just and legal rights when by their Office and dignity Royal they are the principal Conservators of the Peace within their own Dominions and by their Subordinate authority the Judges of their Courts of Record at Westminster and the Justices of Assize can and do legally punish and command men by word of mouth to be Imprisoned or taken into Custody by their Tipstaves Virgers Marshals or by the Warden of the Fleet or his men attending them when the Lord Steward of the Kings Houshold Earl Marshal and Constables of England are by their Offices Conservators and Justices of the Peace in all places of the Realm and the Steward of the Marshalsea within the virge by that derived authority can do the like and all the Justices of Peace in England were and are authorised by him who hath or should have certainly a greater power than any Justice of Peace who may by Law award a man to prison w ch breaketh the peace in his presence or appoint his servant to serve or execute his Warrant or cause by word of mouth to be arrested or imprisoned the person offending for contempts or an offender being in his presence to find security for the Peace and by the Common Law cause Offenders against the Peace to be punished by corporal punishments not capital as whipping c. when a Sheriff of a County and the Majors and head Officers of Cities and Towns Corporate do the like under and by the power given them by grants of the King and his Progenitors when the Steward of the Sheriffs Turn or a Leet or of a Court of Piepowder may commit any to ward which shall make any affray in the presence of any of them when the Lord Mayor of London whose Chamberlain of that City hath a power appropriate to his Office of Chamberlain to send or commit any Apprentices of London upon complaint of their Masters or otherwise to the Prison of the Compters or to punish and reform such disobedient Servants though the younger Sons of Baronets Knights Esquires of Gentlemen and sometimes the elder Sons of decayed or impoverished Esquires or Gentlemen who should have a greater respect given unto them then those of Trades men Yeomandry or lower Extractions by cutting and clipping their hair if too long and proudly worn or cause them to be put into a place well known in Guildhall London Called Little Ease where to a great Torment of their bodies they cannot with any ease sit lie or stand or by sometimes committing them to Bridewell or some other place there to be scourged and whipt by a Bedel or some persons disguised for no man can tell where to find or discern any reason that the King should not upon extraordinary occasions have so much power and coertion in his high and weighty affairs of government protection of his people and procuring and conserving their peace welfare and happiness as a Stâ—ward of a Court Leet or the Lord thereof in their far less affairs of Jurisdictions by punishing of Bakers and Brewers by that very ignominioâ—s and now much wanted use of the Pillâ—ry and Tumbrel in the later whereof the Offender was to be put in a Cathedra or ducking stool placed over some stinking and muddy pool or pond and several times immerged in it or that by any law or reasonable custom our Kings of England are to have a more limited power in matters of punishment government or a less power than the Masters Wardens of that petty and lower most the late erected Company or Corporation of the Midlers only excepted Company or Corporatioâ— of the Watermen who acting under the Kings authority can fine the Master Watermen for offences committed against by-laws of their own making and imprison them without Bail or Mainprize for not paying of it and cause their Servants for offences against their Masters to be whipt and punished at their Hall by some vizarded and invisible Tormentors or less than the power and authority of a Parish and most commonly illiterate and little to be trusted Constable who may upon any affray or breach of the Peace in his presence or but threatning to break the peace put the party offending in the stocks or keep him at his own house until he find sureties of the peace or less than those necessary military powers and authorities exercised in Armies Garrisons or Guards by inflicting upon offenders that deserve it the punishment of running the Gantlet riding the wooden horse c. or in maritime affairs by beating with a Ropes end ducking under the main yard c. when as the Powers given by God Almighty to his Vicegerent the King and Supreme Magistrate and the subordinate and derivative power concredited by him to his delegated and commissionated inferiour Magistrates are not debarred that universal and well-grounded maxim of Law and Right Reason Quando Lex aliquid
out of his place for Bribery and Extortion it was in the Sentence or Judgment given against him said that Sacramentum Domini Regis quod erga Populum habuit custodiendum â—regit maliciose false Rebelliter quantum in ipso fuit he had falsly malitiously and traiterously as much as in him lay broke or violated the Kings Coronation Oath which demonstrates that although he had at the same time violated his own Oath made unto the King when he was admitted into his Office or Place yet his fault was the greater in breaking the Kings Oath and that part of his Justice with which he was trusted For the Grants of the Judges Places by the King durante bene placito or quamdiu se bene gesserint during the Kings pleasure or as long as they do wel behave themselves the Kings Commissions of Oyer Terminer Et Gaola deliberanda of Gaol Delivery and to hear and determine Causes in their Circuits their Oathes besides their Oathes of Allegiance and Supremacy taken at their admittance into their Places prescribed and directed in the 18th year of the reign of King Edward the third and administred by the Lord Chancellor or Lord Keepers of the Great Seal of England for the time being That they the King and his People in the Office of Justice shall not counsel or assent to any thing that may turn unto his damage shall take no Fee or Robes of any but the King himself nor execute any Letters from him contrary to the Law but certifie him and his Councel thereof and shal procure the profit of the King and his Crown in all things that they may reasonably do the same in an Act of Parliament made in the 20th year of the Reign of that King they are expresly mentioned to be Deputed by the King to do Law and Right according to the usage of the Realm the Kings Writs directed unto them stiling them no otherwise then Justitiariis suis and those Courts the Kings Courts the acknowledgment of the Judges themselves in the Reign of Queen Elizabeth and their readiness to obey all her lawful commands in the Case of Cavendish and that of Sir Edward Coke that the Judges are of the Kings Councel for proceedings in course of Justice their assisting the Lord Chancellor or Lord Keeper of the Great Seal of England upon request or sending for some of them out of their own Courts into the Chancery their attending upon the King in his House of Peers in Parliament to assist and advise in matters of Law there debated when required but not with any power of Vote or decisive Judgment their often meetings out of their Courts altogether upon any of the Kings commands or references in causes difficult by Petition or Appeal to the King and their Opinions humbly certified thereupon and attending upon the King and his Councel upon matters doubtful wherein the ayde and advice of the Regal Authority was required and whether their Patents or Commissions be durante bene placito or quam diu se bene gesserint during the Kings pleasure or as long as they shall well behave themselves are void per demise le Roy by the death of the King that granted their Patents or Commissions and to be renewed at the pleasure of his Successor may abundantly evidence that they may not claim or justly be beleived to be independant Soveraign absolute or without an Appeal to their King and Soveraign who granteth amongst many other Offices in the said Courts the Office and Place of Warden of the Fleet by the Name of the Keeper of the Kings Pallace at Westminster aad the Office thereby to attend by him or his Deputy the Courts of Chancery Common-Pleas and Exchequer and keep in safe Custody the Prisoners committed by them when all the Writs and Process of those Courts are issued under his Name and Seal and all but the Chancery which are honoured by his own Teste are under the several Testes or Subscriptions as the Law intendeth of the Chief Justices or Judges thereof together with the Exemplifications of Fines Recoveries Verdicts and other Records in the Court of Common-Pleas and the Court of Kings-Bench and in their several and distinct Jurisdictions are subjected unto and dependant upon the Regal Authority Crown and Dignity And cannot be otherwise understood to be when our Kings have sometimes fined Judges for Extortion or Bribery as King Edward the first did Sir Ralph de Hengham and diverse other Judges in the 16th year of his Reign when the Judges in the â—aid Courts cannot ex officio pardon or discharge a fine or punishment imposed or inflicted by them upon Offenders nor without his Writ of Error amend or correct Errors committed by themselves after the Term ended wherein they were committed are if they exceed their bounds subject by his Writ punishment of Praemunire to a forfeiture of all their Lands Goods Estate of their Lands in Fee-Simple or for Life to have their Bodies imprisoned at the will of the King to be out of his Protection and when he as he pleaseth commandeth the Rolls and Records of the Courts of Chancery Kings-Bench and Common-Pleas to be brought into his Treasury or the Tower of London for safety adjourneth those Courts upon occasion of Pestilence or other reason of State or Warre as King Edward the first did to York where they continued for some years after that the Judges are by Office of Court to stay surcease in many things where they do perceive the King to be concerned either in point of profit or other concernment untill they have advised with the Kings Serjeants or Councel learned in the Law when the Writs of Prohibition frequently granted by the Court of Common-Pleas or Kings-Bench in his name do signifie that he hath haute Justice power and authority over those and the inferior Courts of Justice and by his Supreme Authority doth by his Legal Rescripts and Mandates issuing out of his High Court of Chancery upon any defects in his Subordinate Courts for want of power and authority consonant or agreeable to the rules of right reason and equity moderate the rigors of his Laws correct Errors and provide fitting remedies for all manner of Contingencies or Disorders happening in the course execution or manage of his Laws or Justice testified by his Injunctions out of the Chancery to stay the rigors and proceedings in the Courts of Common-Law Commissions of Trail Baston more rightly ottroy le Baston granted by King Edward the first to inquire of and punish misdemeanours riots extortions c. which the Courts of Justice then in being had cognisance of might have upon complaint punished redressed many other Commissions of that kind made out by that other of our Kings with Commissions of Assise Association cum multis aliis or the like the Writs of Rege in consulto
himself might commit or command the party offending to prison which may surely upon some emergent or particular occasions admit him to a just intermedling therein for it cannot be denied but King Henry the 3 d. hath sometimes sate amongst his Judges or Barons in the Court of Exchequer and we may believe those dictates of reason which are to be found in the Civil Law when it saith that Jus superioritatis jurisdictionis Regis non potest ab inferioribus dominis jurisdictionem habentes contra Principem praescribi quia quae sunt in subjectionis data impraescriptibilia The right of Superiority of Jurisdiction cannot by any inferior Jurisdictions be prescribed against the Prince for that those things which were granted or given in signe of subjection are impraescriptible Posset enim si hoc fieret paulatim collabi Imperium redderentur subditi Acephali for if that should be suffered the Dominion or Empire of Kings and Princes would by little and little so moulder and wast away as the Subjects would be more then Subjects and as men without a head Et cum omnes jurisdictiones habeant vim a Regia permissione tanquam radij a Sole fieri non potest ut remanente jurisdictione non agnoscatur Sol unde dependet And when all Jurisdictions doe receive their force and vigour from the Kings permission as the Beams or Rayes doe their Lustre from the Sun it cannot be but that as long as the Jurisdiction remaineth the Sun on which it dependeth should be acknowledged Quomodo etiam poterit quis dicere praevalere jurisdicttiones concessas a principe contra anthoritatem principis cum haec potestas annexa Regio diademati est innata ei videtur For how can a-any one affirme that any Jurisdiction granted by the Prince can be used or prevaile against his authority when he may at his pleasure for just and legall Causes alter diminish or revoke them it being a power innate and annexed to his Royal Diademe Saith that Civilis prudentia those excellent rules of government which are ro be found in the Cesarean or Civill Law And there can be no power saith a late learned Author where there is not a power to exercise it for in France saith the learned Charles Loyseau le dernier ressort de Justice est tellement un droict de Soverainete que mesme en Commun language est appelle Soverainete the last resort or appeal for Justice is so much esteemed to be a right of Soveraignty as in common or vulgar speech it is called Soveraignty And where the King is by our Lawes not denied to be the Lex viva Lex loquens the living and speaking Law the Civill Law saith Rex solus judicat de causa a jure non diffinita the King is the only Judge in such Causes where the Law hath not already defined or determined them And Bracton hath these words in dubiis obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda Interpretatio voluntas cum eius sit Interpretare cujus est condere in matters doubtfull and obscure or if any word shall contein or seem to beare a double signification the Kings will and Interpretation is to be attended when as he that makes a Law is and ought to be the fittest Interpreter and Britton saith that the Kings Jurisdiction is superior to all the Jurisdictions of the Realm and according to Bracton is Autor juris unde jura nascuntur the Author of the Law and from him all Laws are derived Omnes sub eo ipse sub nullo nisi tantum sub Deo parem autem non habet in Regno suo quia sic amitteret praeceptum all his people are subject unto him and he under none but God only hath none equall unto him in his Kingdom for if he had he would loose his power of Command or Authority and in another plaee of his book repeating that Opinion well founded Doctrine saith Parem autem habere non debet nec multo fortius superiorem maxime in justitia exhibenda that he ought not to have an equall nor which is more any superior especially in the Administration of Justice which made the Judges in the 13 th year of the Reign of King James rightly stile him the fountain of Justice And this dernier ressort or appeal hath been so necessary an Assistant to our Laws and Courts of Justices as the reverend Judges thereof have not seldome been constrained to pray in ayd of it and therefore a Marginall d Note in an old Stathanis Abridgment hath this remarque that in Hillary Term in the 13th yeer of King Henry the 7th Cheeseman being under Sheriff of Middlesex and having arrested un Cutpurse en le Sale de Westminister a Cutpurse in Westminister-Hall hastement veign un Fog fut Serjeant Porter le Roy A donques le Roy eant a Westminister prist le dit Cutpurse del vic en le Sale Sur que le vic lui complaint al Fineux Chief Justice mand un des Marschalls ovesque le mace pour le dit Porter qui don respons quil ne voil vener al request dast des Tipstaves Sur que le Chief Justice alast al Chanc monstra le matter le Chanc mand soon Serjeant d' Armes pour liu il respond a liu quil conust lui pour Sergeant nostre Seigneur le Roy quil voil aler ouesque lui donques il veign le Cheife Justice command le vic de liu arrest quant il vei issint il fit il a lui fit rescous surque le dit Justice alast al Roy monstre le matter le Roy command le dit Fog d' obier le Justice de vener a le Court de lui submitter a le ley issint il fit fut mis a son fine troue pleg de fine faciend whereupon one Fog Serjeant Porter of the King the King being then in his House or Pallace of Westminister came hastily and took away from the Sheriff being then in the Hall the said Cutpurse whereof the Sheriff complaining to Fineux Chief Justice of the Court of Kings-Bâ—nch he sent one of the Marshalls with his Tipstaffe for the said Porter who answered that he would not come at the request of any of the Tipstaves whereupon the Chief Justice went unto the Chancellor and shewed him the matter and the Chancellor sending his Serjeant at Armes for him he answered him that he knew him to be the Kings Serjeant at Armes and that he would goe with him and being come the Chief Justice commanded the Sheriff to arrest him when he saw him who did arrest him but he rescued himself and thereupon the Chief Justice went unto the King and shewed him the matter and the King commanded the said Fog to obey the said Justice and to go
under His Seal and Teste Me Ipso directed to all His Courts of Justice And are as Bracton saith Formata ad similitudinem Regulae Juris framed by and according to the Rules of Law whiâ—h warranting many of the Proceeding thereof are in the Assize betwixt Wimbish and the Lord Willoughby in Trinity Term in the sixth year of the Reign of King Edward the Sixth said and not denyed to be Law and the Act of the King but not of the Chancellor So as they who shall endeavour to impose upon other men that the King is not by Law presumed to be present in his Court of Kings Bench where the Records do mention the Judgements given therein to be coram Rege before the King as if he were personally present with the Judges of that Court who are assigned to assist Him may as to the Kings Power in matters of Justice and over the Judges and Courts delegated by Him do well to seek a reason which is justly to be feared will never be found why it should be Law or Reason for King Alfred in the discords or ignorance of his Subordinate Judges in the distribution of Justice to hear and determine the Causes Himself or for King Canutus long after to judge the Causes of such as complained unto him when our Bracton doth not at all doubt of it when he saith that the Judges nullam habent Authoritatem sed ab alio i. e. Rege sibi Commissam cum ipse qui delegat non sufficiat per se omnes Causas sive Jurisdictiones terminare they have no Authority but what they are intrusted with by the King who granted it when as he who delegated them is not able or sufficient by himself to hear aad determine all Causes in every Jurisdiction unto which our Register of Writs that Pharmacopeia Director and Magazine of Medicines and Remedies for many a Disease in the Estates and Affairs of the People which Justice Fitz Herbert in his Preface to his Book De Natura Brevium of the Nature of Writs calleth The Principles of the Law and the Foundation whereupon it dependeth and in Plowdens Commentaries is as to many things truly said to be the Foundation of our Laws and so Authentique as Brown Justice in the Case betwixt Willon and the Lord Barkley in the third year of the Reign of Queen Elizabeth declared that all Writs were to pursue the Forms in the Register and it was enough to alledge so is the Register will easily assent and all our Books of the Law all the Practice and Usage of our Courts of Justice all our Records Close and Patent Rolls and our Kings hearing and determining of Differences betwixt the Common Law and Ecclesiastical Courts and Jurisdictions and their making of Orders to reconcile the Proceedings of the severall Judges thereof and the like betwixt the Admiralty Court and the Courts of Common Law ordered decided and agreed before King Charles the First and His Privy Council in the ninth year of His Reign the Judges in criminal Matters not seldom attending the King for a Declaration of His Will and Pleasure where a Reprieve Pardon or Stay of Execution shall be necessary will be as so many almost innumerable powerful and cogent Arguments to justifie it And a common and dayly Experience and the Testimony of so many Centuries and Ages past and the Forme used in our Writs of Scire Facias to revive Judgements after a year and a day according to the Statute of Westminster the 2. with the words Et quia volumus ea que in Curia nostra rite acta sunt debite executioni demandari because we would that those things which are rightly done in our Courts should be put in execution c. may bear witness of that Sandy Foundation Sir Edward Coke hath built those his great mistakings upon and those also that the King cannot propria Authoritate Arrest any man upon suspition of Treason or Felony when the Statute made in the third year of the Reign of King Edward the First expresly acknowledgeth that the King may Arrest or cause men to be Arrested as well as His Chief Justice without distinction in ordinary and civil or criminal matters and when by the beforemention'd Opinions of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Lord Chief Justice of the Court of Common-Pleas and of all the Judges of England delivered under their hands in the Four and thirtieth year of the Reign of Queen Elizabeth it was acknowledged that She or the Lords of Her Privy Council might do it And in the before recited great Case of the Habeas Corpora in the Reign of King Charles the Martyr there was no question made but that the King might lawfully do it with a cause expressed in the Warrant And many a Nobleman and others hath in several of our Kings Reigns either upon suspition of Treason or Flagranti Crimine in or very near the acting of it or upon great Misdemeanors been Arrested by our Kings and Princes onely Command and sent Prisoners to the Tower of London As the Great Mortimer Earl of March by King Edward the Third the Pompous Cardinal Wolsey and Queen Ann of Bulloin by King Henry the Eighth the Duke of Northumberland by Queen Mary the Duke of Norfolk and Earl of Essex by Queen Elizabeth for Treason Robert Earl of Somerset and his Lady committed for Felony Sir Tho. Overbury for refusing to go Ambassador when he was sent by King James Henry Earl of Oxford for striking up a Great Lords heels in a Solemnity of a great Feast when the French Ambassador was entertained in Westminster Hall for presuming to offer to wash his hands after the King had washed in the Basin which as Lord Great Chamberlain of England he had holden to the King Thomas Earl of Arundel for marrying the Lord Matravers his Son to the Sister of the Duke of Lenox and Richmond without his Licence and Philip Earl of Pembroke and the said Lord Matravers for striking and scuffling with one another in the House of Peers in Parliament and some others by King Charles the First and some by His now Majesty and our Parliaments have many times in some Charges brought against offenders of the Weal Publique petitioned our Kings and Princes to do it and many others have been so committed in the Reigns almost of all our Kings and Princes of which every Age and History of this our Kingdom can give plentiful Examples which we may believe to have been done by good and legal Warrant when in all our many Parliaments and Complaints of the People therein such Arrests and Imprisonments have not been in the number of any of their complained Grievances for otherwise what Power Writ Authority or Warrant of a Judge or Justice of Peace could have seiz'd upon that Powerful Mortimer and taken him in Notingham Castle out of the amorous Embraces of Queen Isabel the
and the Responsa prudentum of their Commissionated Justices and the Reasonings and Dictates of those Disciples of refined Reason and how wide also is the difference betwixt Deliberation and things spoken of a sudden betwixt Arguments solemnly made both at the Bar and at the Bench and that which passeth from them obiter or in transitu hastily and without any premeditation or in passage or as circumstantial to some other matter or when it was not subjectum Argumenti the subject or material part of the Argument but came in as foreign or was not the principal Design thereof or was but as some of the Law Reports do mention other things to have been spoken onely ad mensam as they sate at Dinner or Supper or in their private Conferences or per Auditum by Hear-say or Report of another coming in from a Court or Business at Law where they that made the Report were not present neither were those Sons of Wisdom ignorant that Laws were to be so subservient to Government as not to incumber the just means thereof and the Power and Authority which should protect and take care of it For although Kings and Princes ought in performance of their Oaths taken at their Coronation to make the Methods and Rules of their Governments where Justice and Reason shall perswade it to come up as near as they can Legum suarum praescripto to the minde and direction of their established and allowed Laws and reasonable Customs of the Kingdom and moderate and guide their Power as Bracton saith to the right end for which it was ordained yet the Suprema Lex Salus Populi ne quid detrimenti Respublica capiat the Supream Law to heed above all things next to the will and commands of the Almighty King of Kings the safety of the People and Weal Publique committed to their charge wherein their own is not a little concern'd being not to be neglected enjoyns the care and observation of that great Principle in the Eternal Laws of Nature and right Reason that there ought to be in all Kings Princes and Governors such a Power and Means extraordinary as may answer the purpose of Government procure Justice relieve Necessities and repel any the Incursions of Dangers which present Laws or the greatest fore-cast could never provide or before-hand arm against when Time Necessities or Hazards imminent cannot tarry for the popular or long deliberations or assent of a Multitude who can sooner bring upon themselves a ruining and fatal Discord than procure any help at present and that to oblige Government to a close and pertinacious adhering to Laws or Rules already established which can yield them no relief or at the most none at present may be as inconvenient and destructive as to limit a Captain Master or Pilot of a Ship going to Sea what Orders and no other he must observe when Pirates or Enemies assaults unlooked for the Furies of the merciless Windes and Seas or those many other Misfortunes of which the Seas do produce as great a plenty as they do variety shall rush or break in upon him and must of necessity require other helps or directions and cannot always sayl by Card or Compass or in sight of a conducting Pole-Star but most sometimes for the preservation of himself the Ship and Passengers lowr his Sayls cut his Cables or Main-mast or throw Goods over-board to be recompensed by those whose good and safety was procured by it Or might be as fatal as it would be to an Army when a General or Commander of it shall be pinnion'd and fetter'd with Instructions or Authorities ill calculated and must not go beyond them when their Cares Arts and Stratagems are not to be before-hand prescribed by Laws Instructions or Rules of War but are to be used and practised as Occasions Opportunities Advantages or Disadvantages Successes Dangers or Misfortunes shall advise And therefore if we look down from the hills of Time into the valleys of the Ages past and take a view of the Laws and Constitutions of our Princes the Records and Monuments of their Justice distributed by themselves or the Judges their Substitutes the weight of the Reasons of their Judgements therein and the Obedience which the People have from Age to Age readily paid unto them they that will not wilfully sacrifice to a peevish Obstinacy may see cause enough for our Kings as well to make use of extraordinary Helps and Remedies in order to Justice and the Weal Publique as their delegated Judges have done by that which they call Office and Discretion or course of Court and Equity of Statutes in many Causes too many to be here instanced when the Laws would too much streighten them or not permit them to do that which Justice would require or expect at their hands to believe that the no unfaithful or unlearned Judges in the former Ages did not incroach upon the Liberties of the People or wanted a Warrant of right Reason when they had such a veneration and respect to the Prudence of divers of our Princes their Reason and Necessities of State and the preservation of the People and in doing of Justice as in the sixth year of the Reign of King Richard the First Adam of Benningfield and Gundreda his Wife having brought a Writ of Dower against Robert Mallivell and Pavie his Wife for seven Carves of Land in Raveneston with the Appurtenances in the County of Nottingham of which the said Gundreda had a Fine levied unto her in the Court of King Henry by Robert Mallivell Father of the said Robert Mallivell and thereof produced the Chirograph and alledged that the said Robert the Son had disseized them in the War or Rebellion of Earl John the Kings Brother and was with him in the War against the King at Kingeshage and that by reason of the Seisin of the said Robert by the said Earl John the Land was taken into the Kings hands as Hugh Bardo witnessed but the said Robert pleaded that he paid a Fine to the King for it and for that Land to have his Lands again and for that produced the Kings Letters to the Sheriff of Nottinghamshire who attested the truth thereof Et Dominus Cancellarius dicit quod ipse accepit ab ore Domini Regis quod ipse redderet Seisinam terrarum omnibus illis qui disseisiti fuerunt per Comitem Johannem dicit quod ratum habeâ—ur quod ipsi disseisiti fuerunt per Comitem Johannem inde consideratum est quod magis ratum habetur quod Dominus Rex ore precipit quam quod per literas mandavit quod Adam Gundreda habeant Seisinam suam and the Lord Chancellor witnessed that he was commanded by the King by word of mouth that he should make Livery of their Lands to all which were disseized by the said Earl John which would have required a good Warrant in a matter concerning so many and said that it was proved that they
libertatis privilegij praedictorum laesionem manifestam to the prejudice of the rights of the Crown and violation of the liberty and priviledge aforesaid hujusmodi vijs modis quibus poterint praecanere libertatem privilegia sua praedicta manu tenere cupientes And that they were desirous by all the ways and means they could to hinder such doings so prejudicial unto them and were resolved to maintain the Liberties and Priviledges of the Crown And not be able to protect his Houshold and domestick Servants in whose daily service and continual attendance both our Kings and their Subjects were more concerned than they could be by any the service or attendance of the Officers or Clerks in the Court of Chancery Which the Lords in Parliament did so well understand to be a Right inherent and due unto Royal Majesty as in the three and fortieth year of the Reign of Queen Elizabeth they did in the Case of William Huggen one of the Queens Servants arrested upon an Execution send the Gentleman-Usher attending upon their House to the Prison of the Fleet to bring him before them and upon view of Precedents of some of their own Servants delivered though none of any the Kings or Queens did in conformity to the reason thereof cause the Plaintiff upon the Defendants promise to pay him to release him and the Under-Sheriff being committed to the Fleet was three days after upon his Petition discharged And in the first year of the Reign of King James The Earl of Suffolk Lord Chamberlain of the Kings House did procure Nicholas Reading one of his Majesties Servants arrested by an Execution at the Suit of Sir Edward Hales to be brought before the Lords in Parliament by a Writ of Habeas Corpus and so by the Plaintiffs consent released the Order mentioning that such an Arrest was contrary to the honor and priviledge of that Court. Or that not only the Judges of the superior Courts the Justices of Peace can as they have done it antiently and commonly imprison men for Contempts of them or their written Orders or verbal Commands without which they power could not Tueri Jurisdictionem uphold that Authority which the King had given them but the Constables of every Parish in London whose Offices and Authority at the first were saith the judicious and learned Lambard but as the fingers to the hands or body of the Constable of England a great Officer of the King and his Crown can in their Night-watches command better men than themselves to the Compters or London Prisons there to lodge the remainder of the night among the debauched or unruly sort of people calld Rats or Night-walkers but for angring his worship or not believing that he is a Prince of the Night the Kings Image and none of the smaller parcels of mortality and shall have so much connivence at his no seldom committed Follies as no other Habeas Corpus shall be granted to the injured person thn a submissive paying of his Fees of imprisonment and procuring himself as well as he can to be discharged by the greater discretion of the Lord Mayor or an Alderman before whom he is the next morning to be brought with his not to be discerned Fault or offences and if he should seek afterwards to be recompenced for such an affront is to expect as little favour as may be for himself and as much as may be for his adversary And that the King under whose Power and Authority they acted should not be able by his own immediate command or the Warrant of some of the great Officers of his Crown or Houshold to punish by imprisonment any contempts committed against himself and his soveraign power by the arresting of his domestick and houshold Servants without Licence who are neare unto his person and imployed in his hourly or daily service or attendance or that his power and Authority should not be efficacious or valid in his own case or immediate concernment and should be valid and sufficient to punish such as either contemned or abused his Justices and Servants extraordinary who are more remote from his person in the administration of his Justice As when Eustace de Parles and his brother were by King Edward the first in the one and twentieth year of his Reign committed to the Tower of London for abusing and striking in Westminster Hall William de Bereford one of his Justices of his Court of Common-Pleas And King Edward the third by his Justices and Authority punished the Bayliffs of Ipswich by the Forfeiture and Loss of their places seised the Liberties of the Town and delivered the Custody thereof to another during the Kings pleasure and made the Bayliffs of the Town to deliver in Court their Staves of Office for that they had suffered an unruly multitude to feast and revel with certain Malefactors condemned by the Justices of Assize and after their departure made a Mock game of them in sitting upon the Tribunal and Fining them and their Clerks Or that any should think it reasonable or no disservice of the King or his not to be incumbred Affairs to arrest any of his Houshold Servants without a Licence first obtained And shall at the same time decry or declaim against the Arresting of a Judge sitting in his delegated Court of Justice or travelling in the Circuit by and under the Kings Commission at the Suit of any private person or the Arresting and Imprisonment of an Admiral or Vice-Admiral going to Sea or a Commander or Governor of a Castle Fort or Garison upon the like occasion and think it reasonable that the King in reference to the Weal-publique in those his affairs and concernments should by priviledge protect and shelter them A right understanding whereof and of that which hath been before alleaged and the reasons supporting those Judgments of the not ignorant or unworthy but very learned grave and upright Judges in those former Ages and Times and of the Duties Honor and Respects which were and ought to be paid to the Soveraignty just and necessary means of Government assented unto by our Lawes and reasonable Customs of England and in praxi observantia junioris Aevi in the practise and course of Law in the succeeding Ages not denied by any positive or well interpreted Law may grant a Proeibition and give a Checque or Restraint to those opinions so of late hatch'd and hug'd against too many of the Actions of Authority in order to Government and the Weal-publique the necessity of preventing Evils before they happen or diverting abating or lessening them after they are happened and invite them to forsake their overmuch adoration of Sir Edware Cokes aforesaid Errors and believe Sir Thomas Ridley a Doctor of the civil Lawes and no stranger to our Common-Lawes who no longer ago than the beginning of the Reign of King James in his Book intituled A view of the Civil Ecclâ—siastical and Temporal