Regale Necessarium OR The Legality Reason and Necessity OF THE Rights and Priviledges Justly Claimed by the Kings Servants And which ought to be allowed unto them By Fabian Philipps Seneca in Traged Octavia Act 2. Collecta vitia per tot Aetates diu In nos redundant Seculo premimur gravi Lucanus de Bello Civili lib. 9. Squalent Serpentibus Arva Durum iter ad Leges patriaeque ruentis amorem LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black-Boy in Fleet-street over against St. Dunstans Church 1671. To the Illustrious and Right Honourable James Duke Marquess and Earl of Ormond one of the Lords of his Majesties most Honourable Privy Councel Lord Steward of his Majesties most Honourable Houshold and Knight of the most Noble Order of the Garter And unto the Right Honourable Edward Earl of Manchester one of the Lords of his Majesties most Honourable Privy Councel Lord Chamberlain of his Majesties most Honourable Houshold and Knight of the most Noble Order of the Garter My Lords WEre it not that these unhappy times have brought forth a sort of reasonless men whose humors and Phancies led by an ignorance or Interest makes them unwilling to submit to Laws and the necessary and just means and Rules of Government unless their understanding which in those quarrelling and contentious Sceptickes is little enough may be convinced and satisfied with the Reason thereof these my Labours might have seemed to be as needless as Physick for those which are in Health and to be little more than a quarrel with my own Shadow But they that hear the dayly complaints now more than ever made against the Legal and just Priviledges of the Kings Servants the affronts offered to the Majesty and Supreme Authority of the King by Arresting and Imprisoning them without leave first obteyned of the Lord Chamberlain of his most Honourable Houshold or those other great Officers therein to whom it appertayneth and by bringing of Writs of Habeas Corpus by those which have been taken and Arrested by the Kings Messengers for their contempts therein to be delivered by the subordinate Courts of Justice against the mind and Authority of the King that Commissionated them and those many disparaging contests which do arise thereupon with the unwarrantable Opinions now put to Nurse that the King cannot in such a case protect his Servants without a great delay or hindrance of the Execution of Justice that they being Outlawed may be Arrested whether he will or no And that he hath so conveyed his Justice to his Courts of Justice as he is not in the case of his Servants to intermeddle therein may I hope Apologize for my undertaking and endeavors to perswade them out of those and some other their great mistakings and Errors which may produce a neglect and slighting of Authority and many an unforeseen evil consequence In the management whereof I can call my most reserved and private thoughts to witness and they will therein I am confident acquit me that I have not built an Altar to flattery or made any design or hopes of preferment to be my guide or incitement thereunto but have done what I now present unto you only to maintain the Honour and respect which is due to our Soveraign Lord the King and his Servants casta mente manu accompanied with a principle and opinion that he deserves to be accompted the greatest of villaines that would make it his design to lessen or detract from any of the Kings Rights Prerogative and just means of Government and to be ever infamous that for any ends whatsoever would endeavor to diminish or take away any of the peoples Legal Rights Liberties and Priviledges And in that middle way and path of Truth and doing Right to all Parties have no intention to give any assistance for the defrauding or too much delaying of Creditors just debts or stopping the course of Justice in any the peoples Actions or Prosecutions of their rights or for remedies against Wrongs or Injuries done unto them by any indirect course or shelter for such as shall only pretend themselves to be the Kings Servants when they are not truly or really thereunto entituled In which my Labours if any shall undervalue the Authorities which I have brought from the Laws of Nations Customs or usage of all or the most of our Kings and Princes and the Civil Law that great repository of Reason and Prudence to fortifie my assertion of the Priviledges of the Kings Servants they may please to understand that they are principally derived from the Laws of Nations Civil Law and universal right Reason consonant and agreeable to our common Laws which have instructed and guided themselves by many a maxime and piece of right Reason which they have received from them Or shall say that the Records of this Kingdom which have been cited in Conformity thereunto are only fit to make a history but do serve for no proof as some of those of the long robe have with much Injury unto them and themselves and the Truth not long ago been pleased to say or that the old things are passed away those Antiquities are obsolete and little to be regarded Wee are now upon a new way the Law hath been much altered and changed and those evidences and venerable Monuments of Time being the vestigia and footsteps of antient Laws and Customs are not to be much respected And will adventure to vent such Doctrines or Opinions and make themselves as Gutherius a learned French Advocate complaineth guilty of the neglects of those very necessary and usefull parts of Learning and Knowledge which are to be found in the Treasuries of Time and Antiquities may upon better consideration find cause to believe that the Reason of Laws doth never Expire that the unerring Wisdom of the Almighty that Writ some Laws with his own Finger and commanded his beloved people of Israel to repeat them to their Children and after Generations to ask of the days that were past and which were before them since the day that God Created man upon the Earth and that Bildâ—d the Sâ—uhite one of Jobs Friends gave him no ill Counsel when he advised him to enquire of the former Age and prepare himself to the search of his fathers and enforceth it by a Reason that we are but of yesterday and know nothing because our days upon earth are a Shadow and the giver of all Wisdom did long after by his holy Spirit in the Prophet Jeremy enjoyn them to stand in the ways and see and ask for the old Paths that in the making of new Laws and the amending or correcting of the old The knowledge of those which have been altered repealed or laid aside is not a little necessary to the end that by the old we may see the necessity and perfection of the new and by the old how to avoid the failings which might happen in the
should not be a refuge for any man that had committed Manslaughter unless he had first made satisfaction to God Almighty and abundantly recompenced the kinred of the slain and performed whatever was enjoyned him by the Bishop in whose Diocess it happened By the Laws of Hoell Dha or the good King Hoell of Wales made and ordained in or about the same year If any man made an affray or did strike in his Court he was to pay a double Dirvy or Mulct and the like for doing it in the Church whereas in other places it was but a single Dirvy or fine Ex quo disteni praefectus sive Oeconomus in Aula steterit post prandium in tribus festis Principalibus ponens in ea pacem Dei Regis Reginae optimatum Curiae pacem illaâ— transgredienti nusquam erit refugium Navt t' u ' omnium refugium after that the Steward of the Kings House shall appear in the Hall in the three principal Feasts of the year and causeth the Peace of God and the King Queen and Lords of the Court to be published he that breaks it shall be allowed no place of Refuge or Sanctuary nor shall any receive him si quis ergo refugium Regis omnium violaverit nec usquam nec ab unius refugio vel à reliquiis sanctorum defendi potest nisi ab Ecclesia If any therefore shall violate that Sanctuary or place of Refuge of the King he shall be no where or by any one Protected or by any Reliques of the Saints unless the Church shall Protect and defend him And say the same Laws Tria sunt sine quibus Rex esse non potest scilicet sacerdos ad missam celebrandam ad escas Regis potus benedicend Judex Curiae ad Causas discernendas ad danda consilia familia quoque ad negotia Regis parata Three things are so necessary for a King as he cannot be without them that is to say a Priest or Chaplain a Judge to hear Causes and give him Counsel and Servants to do the business of his family Et ubicumque sacerdos familiae Disteni Judex Curiae insimul fuerint ibi erit dignitas Curiae brevit llys Aula Regia licet Rex absens est and wheresoever the Chaplain of the Family and the Steward and Judge of the Court or Palace shall reside and be altogether there the Honour and Dignity of the Court shall be and it shall be esteemed and taken to be as the Kings Court although he be absent And so well did King Canutus the Dane who Raigned here about one hundred and twenty years after approve and allow of the before-mentioned Law made by King Alfred as he made another much to the like effect si quis in Regia dimicarit Capitale esset nisi quidem Rex hoc illi condonarit That it should be capital or death unto any that should fight in the Kings Palace unless the King should be pleased to pardon him Et nullae Citatioâ—â—â— vel summonitiones liceant fieri cuicunque infra palatium Regis Westminster King Henry the first about 275 years after the Raign of the before-mentioned Witlafe or Witlase King of the Mercians in his Charter or Grant to the Abbey of Winchester doth amongst other Priviledges free them de Placitis de omnibus quaerelis sicut terra illa ubi Domus mea sedet in Winton fuit unquam melius quieta from all Plaints and Actions Issuing out of other Courts as much as the Land where his own House or Palace stood in Winchester ever enjoyed which was then understood not to have been disturbed by them the said Charter being by Inspeximus afterwards in the 16 th year of the Raign of King Edward the fourth allowed and confirmed and in regard of the Honour due unto the Kings Houses or Palaces more then the Houses of any Subject or Private person they are by Law and Ancient Custom allowed a Circuit or compass of 12 miles round every way within the Virge whereof in matters appertaining to the Royall Houshold or Servants for Contracts made one with another in the same House and of Trespasses done within the Virge the Steward and Marshal of the Kings House and no Inferior or Commissionated Jurisdiction were to intermeddle Et nullae Citationes aut summonitiones liceant fieri cuicunque infra Palatium Regis Westminster No Citations or Summons are to be made in the Kings Palace at Westminster which until it was disused by the accession of Whitehall unto the Crown in the Reign of King Henry the eighth and after that appropriated to the Courts of Chancery Law Exchequer Dutchy of Lancaster Star-Chamber Court of Requests House of Commons in Parliament who do now sit in that part of it heretofore called S. Stephen's Chappel and the House of Peers in another part of that Ancient House or Palace of our Kings of England was their only House or Residence neer London and retains to this day so much of it's Ancient Priviledge of Freedom from Arrests as any man Arrested there in any Civil Action before or in the Virge of any of the said Courts then sitting although it be by Process Issuing out of any of the said Courts and he had no business before depending in any of them is propter reverentiam loci for Reverence to the Place to be presently without Bail or answering discharged and the Officer Arresting him Imprisoned or otherwise punished Insomuch as Edmond Earl of Cornwall coming to London to the Parliament holden in the 18 th year of King Edward the first and per medium majoris Aulae Westminster versus consilium domini Regis transisset passing through the great Hall at Westminster towards the Parliament ubi quilibet de regno pace domini Regis as the Parliament Roll mentioneth not only Peers or Parliament men licite pacifice venire negotia sua prosequi debet where every man of the Kingdom and in the Peace of the King may Lawfully and peaceably come and follow their business absque hoc quod aliquas citationes vel summonitiones ibidem admittat without being troubled with any Citations or summons complained of the Prior of the Holy-trinity London and Bogo de Clare who thereupon were attached to answer the King and Peter de Chanet Steward of the King Walter de Fanecurt Mareschal of the King whose Jurisdiction was thereby infringed the said Earl of Cornwall and the Abbot of Westminster for that the said Prior by the procurement of the said Bogo de Clare had cited the said Earl in the Hall aforesaid to appear before the Archbishop of Canterbury at a certain day and place to answer such things as should be objected against him to the manifest Contempt and Dishonour of the King and His damage 10000 l. prejudice of the Abbot of Westminsters Liberty and his Damage 1000 l. in prejudicium Officii predict
nature could not be without some Suits or Controversies it would be better to introduce certain forms of Laws in the proceedings thereof by which by the Judges appointment men might manage and frame their actions and fuits than to suffer men to fight and brawl one with another did ordain that nemini liceret in judicio experiri nisi impetrata prius agendi formula a Collegio Pontificum No man was permitted to prosecute another at Law until he had obtained a form or direction for his Action from the College of Priests who were then as the Priests amongst the Hebrews the most learned and experienced afterwards the Praetor or Lord Chief Justice or Juris Civilis Custos Guardian or Keeper of the Law in the time of their republique had authority actionem dare to allow of the action or negare to disallow it and prohibited any Action to be prosecuted against a Parent or Children or against a Patron or the Parents of a Patron sine permissu suo without his license But afterwards when that imperious mistress of the world was married to the Caesars or Roman Monarchy their Emperors as Dioclesian and Maximian Gordian Valerian and Galienus and their successors did by their Rescripts of which infinite examples saith Brissonius might be instanced allow of their Petitions for Debts Trespass or other matters before they were remitted to the Judges appointed and thinks that the original of that Custom came ab ultima antiquitate had a long before and very antient foundation Et apud Francos amongst the old French there appears to have been antiently the like address to their Kings for Justice before they were recommended to the Judges And howsoever by the favour of some of our later Kings and their Subordinate Courts of Justice for the ease and expedition of the Subjects in their suits and actions as they can now of course as it was acknowledged to be in the Reign of King Edward the ◠ex gratia cursoria by an indulged course as they call it out of the Courts to whose Jurisdiction it belongeth take out writs and process to arrest and prosecute as they shall have occasion without the observance of those good and wholsome former rules and directions of our Laws yet there is no record or proof to be found that any of our Kings have so far indulged those courses as to release in that particular the rights and privileges of themselves and their servants in that necessary and well-becoming enforcing of leave or license first to be had before any action or suite commenced against any of their servants which the Laws and reasonable Customs of England derived from the rational Laws and Customs of so many wise and prudent Nations standing yet in force and unrepealed or unabrogated did and do yet intend and direct to be used in the case of all other men that were not the Kings Servants And the Civil Law having taught our Common Law that excellent use and policy of Tenures in Capite and by Knight-service the rules whereof they ought to observe in those services obliging a gratitude as long as they hold those lands in so beneficiary a manner which do tanquam ossibus haerere fix and become inherent and as it were connatural to the Lands would if our Common Law should be silent and there were no Antient Customs or usages to direct it injoyn an observance and respect towards their fellow servants as much as is now claimed in that particular by the Kings servants not to be arrested imprisoned or molested in their Persons or Estates without leave or licence first obtained of their Sovereign for if any sought to disturb their service or quiet before that late unhappy conversion of those Tenures into free and common socage which our seri nepotes and posterity will as may justly be feared rather lament with the weeping Prophet Jeremy than have any the least cause or occasion of rejoycing or taking any comfort in that their supposed freedome or acquest they would not only have been deservedly branded with that most infamous and in it self a worse than Pilloried note of Ingratitude but where the Civil Law and the reason of it could reach them be lyable to the forfeiture or loss of the Fee or Land holden and therefore it was that those feudatary Laws which have gained so great a reputation and entertainment throughout all Europe the most civilized and well-governed quarter or fourth part of the world and extended it self into some considerable parts of the other three as far almost as the habitations of the wild and savage part of them did adjudge Vasallum ob feudarii juris inficiationem proprietate feudi mulctari That a Vassal or Tenant by Knight-service may if he deny the rights and observances due to the Lord of the Fee be deprived or punished by the loss of it Et contumacia quodamodo inficiationi feudi aequiparatur ex qua ingratus cliens ipsa etiam mulctaretur fundi proprietate Clientelaris and a contumacy or contempt of the Lord of whom the Client or Tenant holdeth his Land is somewhat like to the denyal of the Lord Rights whence it is that an ingrateful Client or Tenant may be punished by the loss of the Land for Reverentiam honorem debet vasallus Patrono nec eum offendere debet the Vassal or Tenant oweth reverence and honour to his Patron or Lord of his Land ubi à utem debetur reverentia vel ubi honor naturaliter est praestandus ibi est necessaria veniae impetratio for where Reverence is due or honour by the Laws of nature is to be performed there or in such cases the asking of leave or licence will be necessary from which our Common Law doth not much dissent when by King Henry the first his Laws Qui facit advocatum contra Dominum suum per superbiam perdat quod de eo tenet he which proudly and presumptuously retaineth an advocate against his Lord was to forfeit the Lands which he held of him and where leave is given unicuique se defendere in quolibet negotio to every one to defend himself upon all occasions there is an exception that it must not be contra Dominum quem tolerandum against the Lord whom he is to forbear and the words of the Tenant by Knights-service doing his homage wherein he doth say Jeo deueigne vostre home foyal loyal I become or acknowledge my self to be your man faithful and loyal carries with it an obligation of fidelity de vita membris suis terreno honore observatione consilii sui per honestum utile of life and members and of all earthly honor and observance and keeping his Counsel in all things honest and profitable saith the authentique or Red book of the Exchequer and the Tenants holding of his hands betwixt the Lords in the doing of his homage signifieth saith our Bracton Fleta and Coke reverentiam
voluntatem illius qui debet domum vel curiam or by doing any thing saith an old Manuscript of Coxford Abby or Monastery which is against the will of the owner of the House or Court which King Henry the first in his Laws de Jure Regis concerning some particulars of his Prerogative and Regality did number amongst the rest and accompt to belong unto him and his Successors and in the perclose of that Law which in some Copies is mentioned to be made assensu Baronum Regni Angliae by the consent of the Barons of England it is said haec sunt Dominica placita Regis nec pertinent vicecomitibus apparitoribus vel ministris ejus sine diffinitis praelocutionibus in forma sua these are the Rights and Jurisdictions belonging to the King in his Demesne and do not belong to any Sheriffs Apparitors or their Bayliffs unless especially granted unto them By which and the HVSFASTENE an old course and custom amongst the Saxons which ordained that every house with their FOLGHERES Followers or Servants should be in Franco Plegio in some Franke pleg or Liberty where by the Courts held in those places or Justice there to be had any controversies betwixt them and others or wrongs done by or unto them might be determined the rule of the Civil Law which in many of the Customs or Municipal Laws of this and other Nations was the guide or Pole star which conducted them being that actio sequitur forum rei the Action to which our Common Laws have ever since in their Real and other actions much agreed is to be tryed in the Court where the person or lands of the party defendant are that before recited law of K. Edw. the Confessor which amongst other his highly valued Laws Enacted that Arch-bishops Bishops Earls Barons and all that had Soc a liberty of distributive Justice in their Lands or Territories and Sac a power to fine or punish such as were found guilty either by complaining without a cause or proved to have done wrong to another which gave or confirmed many a liberty or set the example of the succeeding Kings gratifying many of their Subjects with the like in making them tanquam Reguli little Princes within their own Estates or Dominions should have suas Curias Consuetudines their Courts and liberties in their view of Frank Pleg Court Leets and Court Barons and should have under their Jurisdiction etiam milites suos proprios servientes such as served them in wars or held of them by the service thereof or were their domestick or houshold servants Item isti suos Armigeros alios sibi servientes and the Esquires and servants likewise of their servants saith Bracton expounding that Law of King Edward the Confessor the King certainly should not be denied his own Franchise view of Frank-Pleg or jurisdiction to do Justice where either his service or servants were concerned or at least to be complained unto before any violent course of Law should be taken in other Courts against them for otherwise if the King should not have always had such a franchise view of his Frank Pleg or Laws or Customs Hospitii sui as Fleta terms them of his Royal House or Palace there would have been some vestigia foot steps or track to be found either in the Antient Monuments and Memorials of our Laws or of those of later ages or of some other time That the King had been an immediate or single Complainant by way of Action for any abuses only offered to his servants or contempts to his person or Royal Authority which by a long most just and necessary prescription as far as time with his Iron teeth hath left us any remembrances was always left and reserved to the authority and Jurisdiction of the Lord Chamberberlain of the Kings House and the Kings other great Officers who by the Messengers of the Kings Chamber who in such particulars have been as the Lictores Sergeants or Bayliffs pro ista vice upon such occasions to arrest and bring them to the Justice of the King in his Royal Court or Palace and must needs be as lawful or a great deal more in his own particular immediate concernment as it is for the Lord Keeper of the great seal of England or Lord Chancellor to direct the Kings Serjeant at Arms allowed to attend that great and illustrious Officer and Superintendent of the Chancery by himself or his Deputy to arrest and take into his chargeable custody the person of any that shall have committed any grand or reiterated contempt against the process orders or decrees of that honourable Court or for that or the Court of Common-pleas to make the Warden of the Fleets men or the Virgers or Tipstaves attending upon the said Courts or for the Courts of Kings Bench or Exchequer to make the Marshals or Tipstaves thereof to be the Lictores or Messengers of their punishments and displeasure or as the house of Peers in Parliament do make use of the Kings Usher of the black rod and the house of Commons in Parliament of the Kings Serjeant at Arms nor could it have been likely that the Lord Chamberlain of the Kings house who in the Reigns of our Kings Edward the first second or third and probably by foregoing and elder constitutions did in the absence of the Lord Chief Justice of England vicem gerere execute in the Kings Court as Fleta tells us the Office or place of the said Lord Chief Justice should not retain in the Government of the Kings Servants and Houshold so much power as might protect them from injuries or their Royal Master from contempts or neglects of Duties or respects to his person Palace or servants for who that hath not bid defiance to his own Intellect as well as the wisdom of former ages can pretend any shew or colour of Reason that the King should want the power or authority to do as the late blessed Martyr King Charles the first did in the apprehension of certain Watermen in the year 1632. and committing them to Bridewell for refusing to carry the French Ambassador by Water upon the complaint of the Kings Master of the Barge in the year 1634. for the apprehension of William Hockley a Hackney-Coachman for refusing to wait upon the French Embassador or of John Philpots Post-master of Rochester for dis-respects to Monsieur St. German the French Embassador or in the year 1636. for the arrest of John Clifford of Chelsey upon the Complaint of the Spanish Embassador or to cause one Robert Armstrong to be taken into custody by one of his Messengers in the year 1639. for arresting the Post-Master of St. Albans who it may be for ought the offender then knew was bringing some Packet or Letters to the King or his Lords of the Councel for the discovery of some impending dangers which would need as sudden a prevention as the Gunpowder once intended and near atchieved Treason or to
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
Beadels and many other Attendants upon that and all other times of Solempnity to furnish out the magnificence of the City Nor should the number of the Kings Servants which the 19. undutifull Propositions and all other the unreasonable restrictions and conditions endeavoured by the late Rebellion to be imposed upon our late blessed King and Martyr did not seek to restrain or limit be thought to be too many by the addition of some extraordinaries CHAP. XI 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 WHen as there are many times as great a necessity of them as of those in Ordinary either as to service or state the honouring of persons well accomplish'd for services formerly done or likely to deserve it or the retaining of them near unto the King in a dependency upon him or as it were allecti or proximi as many of the Roman Emperors Servants Extraordinary were in reversion for special uses or service when time or occasion should call for it and the Grecian and Roman Western and Eastern Emperors in imitation probably of those customs and usages of the Hebrews who were more participant of the light and emanations of the Divine Wisdom did so separate those which had once been imployed in their service from their other Subjects as they would not dismiss them where age or other impediments not their own default or offences did occasion it without some mark of honour dependency or retaining of them but did ordain an Ordo Dignitatum several degrees or respects to be given unto them with a sitque plane Sacrilegii reus qui divina praecepta neglexerit a penalty that they that offended therein should be accompted guilty of Sacriledge The first degree being 1. For those which were in Ordinary 2. For Extraordinaries or such as deserved to be honoured 3. For such as did not wait but were absent 4. For such as had those titles or honour given them by certain Letters Patents or Codicils and were therefore called Honorarii it being not unusual in those antient Registers of reason the Books or Volumes of the Civil Law to find the Curiales Courtiers or Servants of the Prince stiled Milites Palatini and the Doctors and Advocates Milites literati contradistinct unto the Milites Armati a more proper kind of Souldiers or men at Armes guarding or attending upon the person of the Prince and the Supernumerarii Proximi vacantes a title borrowed from the customs of warfare and Honorarii being as it were Extraordinaries as they are at this day in the Empire of Germany France and other Countries and places and have been allowed the same priviledges with the Princes Servants in actu or agentes in ordinary as to be free from Purveyance lodging of Strangers all Parish and Country Offices ab omnibus sordidis muneribus all imployments in the Commonwealth not becoming the honour of the service of the Prince ut lege vetustissima subjaceant Jurisdictioni Magistri Officiorum they should be under the Jurisdiction of the Lord Steward of the Houshold and not be enforced to appear in the subordinate Courts of Justice and those priviledges were retained post depositam administrationem after the quitting of their services offices or places and the reason given ne sordidis astricti muneribus decus ministerii quod militando videbantur adepti otii tempore quietis amittant lest that being afterwards put upon inferiour offices and imployments they should lose the honour they had gained in the service of their Prince From which the laudable care of our King Henry the 8th did not deviate when in the 17th year of his Reign he did by advice of his Privy Counsel ordain That such of his Servants as should be found to be impotent sickly unable or unmeet to occupy their places the King of his gracious disposition being not willing that any of his old Servants should be rejected left without some competent being unless their demerits should so require did order that some convenient entertainment should be assigned for every one of them towards their being and to be discharged from attendance in his Houshold and other able meet honest and sufficient persons put in their places which entertainments upon the death of every or any the persons discharged shall cease And for such of the Yeomen of the Guard which shall be discharged the Kings Grace is contented to make them Yeomen of the Crown and in consideration of their service that such of them as have none Offices of his Grace to the value of two pence by the day shall have the wages of six pence by the day uncheque So as the reason being the same and since by a common and customary usage in the Courts of Princes arrived to a jus gentium or Law of Nations it may from thence and the Civil Law with warrant and authority sufficient be truly affirmed that much of our method and courses of Parliaments Feudal Laws Tenures Great Offices of the Crown Grand Serjeanties Priviledges of the Kings Servants Honours and respects due to Majesty rules of Honour Precedency and Dignities as well within our Kings and Princes Courts as without our Military and Civil Orders and Government and many of the proceedings in our Courts of Justice and the Latine part and superintendency of our High Court of Chancery in granting of our Kings Rescripts and Writs remedial to prevent a failer of Justice have had their patterns and originals well approved by right reason and our Common Laws and reasonable Customs By directions of which Law of Nations and the Civil Law from whence our Common Laws have borrowed many a maxim and much of their excellency and reason our late blessed Martyr King Charles the First as many of his Royal Progenitors and Predecessors had done before him did sometimes as his occasions or affairs perswaded him admit some to be sworn his Chaplains extraordinary where the worth or budding eminency of some Divines or Students in Theology attracted his eye or intentions to preferre or take them nearer to himself to be his Chaplains in ordinary upon the next avoidance or vacancy or otherwise to preferre them in some Church Office or Dignity as in the year 1628. Doctor Miclethwaite Master of the Temple and an eminent Preacher Doctor Samuel Ward a man more then he should have been averse to the Discipline of the Church of England Peter Heylin a well deserving Divine and dutifull Son of the Church in the year 1632. the learned Robert Saunderson Batchelor of Divinity afterwards Bishop of Lincoln and a great light of the Church Ralph Brownrigge Doctor of Divinity afterwards Bishop of Exeter sworn in the year 1638. one of his Majesties Chaplains Extraordinary and in
the Coasts of Guinee in Africa a Country not at all acquainted with learning or the more civilized Customes of Africa Europe or Asia those that they take for their Nobility have a liberty which the vulgar have not to trade in every place as they please sell and buy slaves have their Drums and Trumpets play as they think good before them and those who are advanced for any Noble Atcheivement have always the principal charges in the Army Nor should our Nobility or the Kings servants be debarred of any of their just rights or privileges when as per reductionem ad principia by a view and reflection upon the Original and causes of all those many priviledges and immunities granted or permitted by our Kings of England unto others of his Subjects and people it will appear that his own servants in Ordinary should not be grudged that which by so many grounds of law and right reason and the antient and reasonable Customes of England may be believed to belong unto them CHAP. XVII 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 asmuch and in some more then what our Kings Servants in Ornary did or do now desire to enjoy FOr ab hac solis luoe from those or the like rays and beams of Majesty and emanations of right reason and necessity of the Kings affairs which notwithstanding the late groundless mad and fond rebellious principle of seperating the Kings person from his Authority and a pretended supremacy in the Parliament or at the least a co-ordination should not be disturbed came and was derived that grand priviledg of the Nobility and Baronage of England many of whom are not his Domesticks not to be molested in time of Parliament or forty days before the beginning of it in their coming unto it upon the Kings Summons and as many days after the end of a Parliament in their retorn to their Habitations though there is no direct way or Journey from their habitations to any place in England where the Parliament is to be kept or holden which can require so much expence of time as twenty days in travelling unto it or twenty days in retorning home by any Process Writs or Summons out of any the ordinary or extraordinary Courts of Justice law or equity the Baronage of England enjoying those priviledges in the 18 th year of the Raign of King Edward the first which were then not newly granted or permitted but were antient and justly and legally to be insisted upon as the punishment of the Prior of the holy Trinity in London not meanly fortified with his own priviledges and the power and protection of the Church and that also of Bogo de Clare who was imprisoned and fined two thousand Marks to the King at that time a very great sum of mony pro transgressione sibi facta for the trespass committed against the King for citing Edmond Earl of Cornwal in Westminster Hall in the time of Parliament to appear before the Arch-bishop of Canterbury whose spiritual Court and Power was then very predominant as hath been before mentioned and it appeareth in the Records of that Kings Raign that he refused to give leave to the Master of the Temple to distrein the Bishop of St. Davids in Parliament time for the Rent of an house held of him in London and answered quod non videtur honestum quod Rex concedat tempore Parliamenti sed alio tempore distringat that it would not be just or fitting for the King to grant such a Licence in time of Parliament but at another time he might distrein and by a very antient right are to be exempted from arrest and the Ordinary Course of Process when there were no Parliaments The Writ of Summons directed to the Sheriffs for the Election of two Knights the wisest and most discreet of every Shire and County of England the County Palatine of Chester then only excepted and for two Burgesses to be sent unto Parliament out of the Cities and certain Boroughs of England the King in the Parliament being without suspition of any unwarrantable conjecture to be rationally believed to have been first framed and sent out in K. Henry the thirds name in the 49 th year of his Raigne by the Earls of Leicester and Gloucester after the Battle of Lewis in Sussex wherein he and his Son Prince Edward afterwards King Edward the first were taken Prisoners by them and other the Rebellious Barons who had taken armes against him as my learned and worthy friend Mr. William Dugdale Norroy King at Armes by comparing the date of those Writs the one bearing date the 14 th day of December at Worcester in the 49 th year of the Raign of that King and the other at Woodstock the 24 th of December in the same year to meet at London on the Octaves of St. Hiâ—lary then next ensuing with the day or time of that Battle and that Kings imprisonment hath after it had for so many Ages past escaped the Industry Inquiries Observations and Pens of all other our English Writers Annalists Chronicles Antiquaries very judiciously and ingeniously observed which Summons of the Commons to Parliament doth not saith Mr. William Prynn appear to have been put in Execution untill about the 23th year of the Raign of King Edward the first whence by Regal Indulgencies and no Innate or Inherent right of their own but ab hoc fonte from the same spring and fountain of the attendance and affairs of the King proceeded the priviledges of Parliament for the Members of the house of Commons in Parliament to be free from actions at Law or Pleas in time of Parliament as Early as the raign of King Edward the second when he sent his Writ or Proclamation to the Justices of Assize in all the Counties of England to supersede all actions against the Barons and others summoned to Parliament In the 11 th year of the raign of King Richard the second upon a riot and trespass committed upon the Lands Goods Servants and Tenants of Sir John Derwintwater chosen to be a Member of Parliament for the County of Cumberland a Commission was granted by that King under the great Seal of England to Henry de Percy Earl of Northumberland to inquire by a Jury of the County of Westmerland concerning the same and to cause to be arrested and taken all that should be found guilty thereof and to appear before the King and his Councell wheresoever he should be 15 days after the Michaelmass then next ensuing In the fifth year of the Raign of King Henry the fourth the Commons in Parliament alledging that whereas according to to the Custome of the Realm the Lords Knights Citizens and Burgesses coming to Parliament at his Command and there staying and in retorning to their Countrys ought With their men and
both Horse and Foot Garrisons and Commanders of Castles Towns or Forts and was believed to be necâ—ssary in the time of Justinian the Emperor Qui statuit milites conveniri tam in causis Civilibus quam Criminaelibus coram ducibus suis quod miles nisi a suo judice coerceri non possit that Soldiers should be cited and tryed aswell in causes civil as criminal before their Captains or Commanders And that a Soldier should not be compelled to appear before any other which was not in that time any new Edict or Ordinance but a Declaration of an antient law and custome in use amongst the Romans in the Infancy of their mighty Monarchy some hundred of years before the birth of our Redeemer as may be evidenced by Juvenal and what was in use and practise and accompted to be of antient institution in his time which was not long after the birth of our Saviour when he saith Legibus antiquis Casâ—â—erum more Camilli Servato miles ne vallum litiget extra Et procul a Signis justissima Centuriorum Cognitio est igitur de milite By antient laws and customes sacred held By great Camillus Soldiers were not to be compel'd To appear in Courts of Justice but in the Campe to abide And by their own Commanders to be try'd And from the like causes and considerations of the Kings service and safety of the Kingdome are allowed by our reasonable laws and customes the priviledges and franchises of the Cinque Ports that the Inhabitants within the liberties thereof do sue and are only to be sued in the courts thereof and the Kings ordinary Writs and Process do not run or are of any 〈◊〉 therein and such as are in certain special cases are only to be directed to the Constable of the Castle of Dover and the Warden of the Cinque Ports and those franchises were so allowable by law as the Abbot of Feversham in his time a man of great power and authority and armed with many and great priviledges of his own both Spiritual and Temporal being imprisoned by the Warden of the Cinque Ports for an offence committed therein for which the Arch-bishop of Canterbury citing the Kings Officers there into his Ecclesiastical Court the Record saith Quia secundum consuetudinem regni approbatam ratione juris Regii ministeri Regis pro aliquibus quae fecerunt ratione officii trahi non debeant Rex prohibuit Archiepiscopo Cantuar. ne volestari faciat ministros suos Dover de eo quod Abbatem de Feversham pro delicto suo incarcerassent per considerationem Curiae quinque portuum de Shepway in regard that by the custome of the Kingdome approved and the right and prerogative of the King the Kings Officers are not to be compelled to appear in other Courts the King prohibited the Arch-bishop of Canterbury that he should not molest or trouble his Officers or servants at Dover for that by a judgement of the Court of the Cinque Ports holden at Shepwey they had imprisoned the Abbot of Feversham for an offence by him committed From the like causes and considerations of the Kings service and good of his household and servants the multitude of tenants heretofore of the Antient Demesnes of the Crown which were in the hands of King Edward the confessor or William the Conqueror for that as Sir Edward Coke saith they plowed the Kings Demesnes of his Maners sowed the same mowed his Hey and did other services of Husbandry for the sustenance of the King and his honorable household to the end that they might the better apply themselves to their labors for the profit of the King had the priviledge that they should not be impleaded in any other of the Kings Courts for any their lands or in actions of accompt Replevin ejectione firmae Writs of Mesne and the like where by common intendment the realty or title of lands may come in question are to be free and quit from all manner of Tolls in Fairs and Markets for all things concerning their husbandry and sustenance of Taxes and Tallages by Parliaments unless the Tenants in Antient Demesnc be specially named of contributions to the expences of the Knights of the Shire for the Parliament and if they be severally distreined for other services they may all for saving of charges joyne in a Writ of Monstraverunt albeit they be several Tenants and where they recover in any action are by the Laws of William the Conqueror to have double costs and damages From which Spring and fountain of priviledges in relation only to and for the concern of the Prince and Son and Heir apperant of the King of England and his revenue hath been derived those of the Court of Stanneries or jurisdiction over the Tyn Mines where by the opinion of Sir VVilliam Cordell Knight Master of the Rolls Sir James Dier Knight Cheif Justice of the Court of Common Pleas and Justice Weston no Writ of Error lyeth upon any judgment in that Court and by an act of Parliament made in the 50 th year of the raigne of King Edward the third and the grant of that King all Workmen in the Stanneries are not to be constrained to appear before any Justice or other Officers of the King his Heirs or Successors in any plea or action arising within the Stanneries unless it be before che Warden of the Stanneries for the time being Pleas of land life or member only excepted nec non recedant ab operibus suis per summonitionem aliquorum ministrorum seu heredum nostrorum nisi per summonitionem dicti custodis and should not depart from their said works or labors by reason of any Summons of the Officers of the King or his Heirs unless it be by the Summons of the aforesaid Warden were to be free as to their own goods from all Tolls Stallage Aides and Customes whatsoever in any Towns Havens Fairs and Markets within the County of Devon and that the VVarden aforesaid should should have full power and authority to administer Justice to all that do or should work in the Stannaries or any forreigners in and concerning any plaints trespasses contracts or actions except as is before excepted arising or happening within the Stannaries and that if any of the workmen be to be imprisoned they shall be arrested by the said Warden and kept in the prison of Lydeford and not else where untill according to the Law and custome of England they shall be delivered All which before mentioned Exemptions and Priviledges as effects flowing and proceeding from their true and proper causes may justifie those more immediate and proximate of the Kings Servants in Relation to his person and a greater concernment more especially when so many of the people of England can be well contented to enjoy not a few other immunities exemptions and priviledges which have had no other cause or foundation then the indulgence and favour
convenire Commanded the whole County without any delay to assemble together as well French as English and more especially such of the English as were skilful in the ancient Laws and Customs of England ubi Goisfredus Bishop of Constance in loco Regis saith the Leiger Book of Rochester vel vice Regis saith Eadmerus fuit Justiciam illam tenuit â—at Judge for or in the place or stead of the King as his Commissioner Hujus placiti multis testibus multisque rationibus determinatum finem postquam Rex audivit laudavit laudans cum consensu omnium principum suorum which could not be the Commons in Parliament as it is now formed or the then Commune Concilium the Parliament consisting of his Nobility Bishops and Peers who could not all of them be stiled Princes but were rather such of his greater sort of Nobility as were then attending upon him in his Court assembled and met together by his Command in that great and more than ordinary County-Court confirmavit ut deinceps incorruptus persevâ—raret â—irmiter praecepit the end of which Trial made by many Witnesses and Reasons being certified to the King he greatly approved it and by the consent of all his Princâ—s confirmed and strictly commanded it to be inviolably observed In the Reign of William Rufus his Son the Delegated Justice of the King in his Courts was so little believed not to be the Kings or the Judgments thereby or therein given not owned or understood to be given by the King as it was the Opinion as well as Complaint of Anselme Arch-bishop of Canterbury how justly or unjustly the Men of that Age when the Church-men were unruly and did not seldom forget themselves and their Benefactors did best know quod cuncta Regalis Curia pendebant ad nutum Regis nilque in ipsis nisi solum velle illius considerari That all matters in the Kings Court depended upon his Will and his onely Will was the Director thereof and whether the particular Interest of that stout and pious Prelate had therein misled his Judgment or no they must be too much unacquainted with our Laws reasonable Customs Annals Memorials Records and Accompts of Time and Transactions bigane and past as well as those of other Nations and the right origination or signification of the word Curia or Court and the no infrequent usage or acceptation thereof if they do not acknowledge that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nuncupatur potestas Dominium 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui potestate fretus est judiciumque exercet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi habitacula Domini That Curia signifieth Power and Dominion and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that exerciseth that Power in giving Judgment therein and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Habitation or Place of Residence of the Lord or Superior dicebatur autem Curia saith the judicious Sr. Henry Spelman primo de Regia seu palatio Principis inde de familia Judiciis in ea habitis ritu veterrimo it being at the first or more especially called Curia or the Court and took its Denomination by a most antient Usage or Custom from the Kings House or Palace and afterwards from their Houshold or Family and the Place where Kings did administer Justice And so untill Courts for the distribution of Justice were allow'd for the ease of Princes and better accommodation of their People out of their Houses or Palaces it will not be easie or possible to espy any essential difference as to the Place of doing Justice betwixt Curia Regis and Camera Regis the Court or Chamber of the King for after that some of our Courts of Justice in England by the indulgence of their Soveraigns ceased either to be ambulatory or resident in their Palaces those that have not bid a defiance to that universally allowed and entertained Maxim by all or most part of Mankind Qui facit per alium facit per se He that doth by another is truly and rightly said to have done it himself and are not resolved to encounter or be adversaries to all the right Reason which they can meet with or to pick up such weak and incogent Arguments as may make a shadow rather than substance of Truth or right Reason ought to confess that there is no real difference between the Kings doing of Justice in his own Person and cauâ—ing it to be done by others or betwixt the hearing of Causes or doing of Justice in the Hall or his Privy Chamber or any other Room of his House or Palace and that before and from the Conquest untill after the thirty eighth Year of the Reign of King Edward the Third whilst the Chief Justice of the Court of Kings Bench attended our Kings as well in their Courts as Progress to assist him in matters of Law and the Decision of Pleas of the Crown and such matters of Law as were not appropriate to the Decision of the Court of Common Pleas as it was then and hath been since constituted which did not leave the Kings Court or Palace untill King Henry the Third commanded it in the twentieth Year of his Reign to abide at Westminster Our Kings of England have in their own Persons heard some or many Causes and given divers Judgments in Aula in their Court or Palace in some Causes wherein they had the assistance of the Lord Chief Justice of the Kings-Bench and when they did not do it personally by reason of their frequent Divertisements Addresses of Ambassadors from Foreign Princes or in respect of the many great Affairs and Cares of State and Government which could not afford them the time or leisure to do it did cause it to be done by their Authority and by their constituted Justices who Vicaria Potestate by as it were a Deputation Lieutenancy or Assignation to those onely purposes represented them and were impowered to do it the Courts of Justice in William the Conquerors time being called Justicia Regis the Justice of the King and the Judges or Justices in the Reign of King Henry the Second Justiciae Regis in the abstract the Kings Judges or Justices For the Kings Justice or Superiority was never yet by any Law or Reason absolutely or altogether conâ—ined to his delegated Courts or authorized Judges or Justices or to any certain or determinate Place as that froward and powerful enough Anselme Archbishop of Canterbury could not but acknowledge when in a Parliament or Great Council holden in the Kings Court at Winchester by the Command of King William the Second or William Rufus in the Contest betwixt him and that King concerning that Archbishops resolution oâ— going to Rome and the Kings refusing to give him Licence divers of the Lords and Bishops passed in and out betwixt them and at last the Archbishop himself went in unto him to expostulate and debate the Matter with him And in the making of the Constitutions of Clarendon in
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
King hath been accompted and is and ought to be the Interest of all the People of England and that the Servants and retinue of a Soveraign Prince who hath given and permitted to his Subjects so many large Liberties Immunities Exemptions Customs and Priviledges should not want those Exemptions Immunities Customs and Priviledges which are so Justly claimed by them Chap. XXI 587 Errors of the Printer PAge 22. line 2. dele now intersere after p. 34. l. 25. dele to p. 43. l. 4. dele and intersere by p. 52. l. 22 dele feirce and incult intersere rude and uncivill p. 61. l. 25. intersere always p. 62. l. 2. intersere in p. 88. l. 26. dele not p. 111. l. 28. dele yet p. 137. l. 23. dele not p. 159. interscribe Baile p. 166. l. 4. dele as p. 197. l. penult dele or interscribe as p. 217. l. 28. dele the Corsaires p. 219. l. 22. dele not p. 241. l. 6. dele unto p. 265. l. 10. dele during the and interline in a more â—itting place p. 416. l. 13. r. Aevo p. 423. l. 17. r. Conquestorem 549. in margin r. Cromwell p. 453. l. 2. intersere pleg l. 4. r. distringas l. 14. intersere them p. 460. in margin r. Valentinus l. 16. r. nobiles p. 461. in margin r. Cassanaeus l. 10. r. noblemen p 475 l. 2. r. Commons p. 527. l. 19. intersere of Westminster p. 552. from thence to page 555. mispaged in p. 543. l. 4. intersere it p. 596. l. 27. interline of p. 614. l. 20. dele an Asilum or intersere a which with some other literal faults redundancies omissions of particles and Errors of the Press are desired to be amended and excused The Reasons aswell as Law of the Priviledges and Freedom of the Kings Servants in Ordinary from Arrests and Troubles of and in their Persons and Estates before Leave or Licence obtained of the King their Royal Master and Soveraign IF the Rights of Soveraignty and Majesty and it's Legal Rational and necessary Protection and Preservation of the People in their several Interests and Priviledges That due care which they ought to take of him and the means wherewith he should do it the Honour of the King and the support and maintainance of it the Reverence and Respect which they should upon all occasions manifest to their Prince and Common Parent and the influence which all or most of his affairs have or may have in their successes and consequences Good or Evil upon all or the greatest part of the Affairs of the People were not enough as it is abundantly sufficient to perswade them to an abstaining or abhorrency from the Incivility of late practiced to Arrest or Trouble the Persons or Estates of the Kings Servants in Ordinary before Leave or Licence obtained of the King their Royal Master and the Soveraign aswel of the one as the other For he that hath not been a very great stranger to reason and the Customes and Laws of this Nation aswell as others may without any suspicion of Error acknowledge that it is and will be a due to Majesty and the Servants of it Yet the Civility long ago in Fashion and not yet abolished in the Neighbourhood and Custom of Mankinde one towards the other might invite them unto it When it hath been heretofore a part of the Law of Nations Nature Christianity Neighbourhood Civility and the Practice thereof which no Law or Good Custome hath yet repealed not to Arrest or bring into question at Law a Neighbours Servant for a Debt due or Injuries received without an Intimation or Notice first given or a kind of Licence obtained to or from that Servants Master to the end that the Love and Respect which ought to be betwixt them might not be dislocated or disturbed and the offending Servants Masters attendance Business or Affairs prejudiced And being constantly held and observed betwixt Friends Relations Kinred Neighbours and even Strangers where any Respect was thought fit to be tendered did probably give a Rise or beginning to that long and experimented Adage or Proverb Love me and Love my Dog Insomuch as a Neighbours Dog causing some mischief or Inconveniences by killing of Sheep or biting such as he supposed were not well willers to the Family and came to his Masters house is not troubled or put into any danger of Beating or Hanging without a Complaint first made to his Master thereof for where the Master hath any respect his Servants and all that do belong to his Family do not seldom partake of it From all which or some of those Causes or Grounds Rights of Soveraignty and duty of the People tacito rerum antiquitatis consensu by a long usage and consent of time and Antiquity came that hitherto uncontroul'd usage and Custom allowed and Countenanced by our Common Laws and reasonable Customs not contradicted or abrogated by any Act of Parliament or Statute Laws That the Kings Maenial Servants and Officers in Ordinary should not be Taken Imprisoned Arrested or Compelled to appear in any Courts of Justice in Civil Actions or Causes without a Petition for Leave or Licence obtained First delivered unto the Lord Chamberlain of the Kings Houshold or other great Officer of the Kings under whose more Immediate Jurisdiction such servant or Officer is whereupon after a Citation of the party and if for debt or otherwise a short and reasonable time as six moneths or something less which in the Ordinary course of Process and Proceedings at Law and the vacations and absence of the Terms is not seldom as soon as they could by Arrest or Compulsion arrive or come unto their Ends and many times a moneth or a Fortnights time prefixed for satisfaction is as easily procured as asked SECT I. That there is a Greater Honour due unto the Palace and House of the King then unto any of the Houses of his Subjects FOr we may well believe that our Laws Reasonable Customs and the Practice of our Forefathers were not out of the way or mistaken in their Respects to the Servants of their Prince when his Aula House or Court wherein he and they Inhabited as a place separate from Common uses or Addresses tanquam Sacra had a Majestatem quandam certain awe or Majesty belonging to it which was as Ancient as the days of King Ahasuerus that great Monarch of Persia and Media who Raigned from India unto Ethiopia over an hundred and twenty seven Provinces when Esther as we are informed by Sacred Writ could alleage that all the Kings Servants and the People of the Kings Provinces did know that whosoever whether man or woman should come unto the King into the Inner Court who is not called there is one Law of his to put him to death Except such to whom the King shall hold out the Golden Scepter that he may live And none might enter into the Kings Gate clothed with sackcloth Tiridates the great King of Armenia
coming to Rome to see the Emperor Nero was Commanded to lay by his Sword which he refusing as supposing it to be dishonourable to himself was rather contented to have it as it was nailed in the Scabbard it being a Custome at Rome Nè quis in domo seâ— Palatio principis arma deferret sine ejusdem permissione that no man in the Palace of the Prince was without his Licence to Wear a Sword although in other Places it was dishonourable for a Souldier not to Wear a Sword By a Constitution or Law of the Emperors Theodosius and Valentinianus the one of the West and the other of the East made about the year of Christ 385. Consecratae sibi aedes id est Inclita palatia ab omnium privatorum usu communi habitatione exceptae fuerunt The consecrated Houses set apart for the Emperors that is to say their Illustrious Palaces were not to be made use of by any private person or to be inhabited by them And many Ages after Theodoricus King of the Gothes and Romans though descended from a Rude and Barbarous Nation who were more used to Cottages then Courts Stiles his Palace Potentiae Imperii decora facies the Representation or Beauty of the Power of his Empire Cum Legatis sub admiratione the wonder of Forraign Embassadors Et prima fronte talis Dominus esse Creditur quale ejus habitaculum comprobatur and the Master of the House and his Honour and Reputation is measured by his House By the old Almaine Laws made in the Raign of Clotharius King of France In the year of our Lord 560. Si quis in Curte Ducis hominem occiderit â—ut illic ambulantem aut inde revertentem triplici were gildo eum solvat If any should slay a man in the Dukes Court in his going or coming thither or his return from thence he was to forfeit as much as the were gild or mulct for the amends should amount unto By the Laws of the old Baivarians or Bavarians confirmed by Dagobert King of France In the year of our Lord 633. Si quis in Curte Ducis scandalum commiserit ut ibi pugna fiat per superbiam suam vel ebrietatem quidquid ibi factum fuerit omnia secundum legem component propter stultitiam suam in publico componat quadraginta solidos si servus est alicujus qui haec commisit manus perdat nullus unquam in Curte Ducis presumat scandalum committere If any shall do or Commit in the Dukes Court any thing which is scandalous and shall make any quarrel by his Pride or Drunkenness he shall according to the Law compound for it and pay forty shillings for his folly and if he be a Servant which did it shall loose his hand For no man is to presume to do any thing scandalous in the Dukes Court. By the Laws of the Longobards Written or compiled about the year of our Redeemer 637. Si quis in Consilio vel in quolibet conventu scandalum commiserit noningentis solidis sit culpabilis Regi si quis intra palatium ubi Rex praeest scandalum perpetrare praesumpserit animae suae incurrat periculum aut animam suam redimat si obtinere potuerit à Rege If any shall do any Scandalous Act in the Council or Assembly he shall be fined nine hundred shillings to the King If in the Kings Court or Palace his life shall be in danger to be lost Unless he can obtain the Kings pardon a less fine if it be in the City where the King is not Resident and more in a City where he is And so much honour was not only in the Civil Law and Rescripts of the Emperors but of the Gothish and other Northern Nations attributed to the house of the Emperors or Kings as it was frequently stiled Divina Domus which wiâ—hout any suspicion of Idolatry might well be afforded unto the House or Residence of God's Vicegerents when holy Writ sticks not to say they are tanquam Dii as Gods Which occasioned Witlafe or Witlase King of the Mercians being some of the Provinces in England now known by the name of Gloucestershire Worcestershire Oxfordshire Staffordshire and many other of the Neighbour Counties when about the year of our Lord 825. he made a Confirmation to the Abby of Croyland in Lincolneshire where he had hid and saved himself when he fled from his Enemies of all their Landâ— and granted them many Priviledges ratified by a Concilium Pan Anglicum or Parliament holden at London the 26 day of May Anno Dom. 833. By Egbert King of the West Saxons and Witlase King of the Mercians to give them a Priviledge that Quicunque in Regno suo pro quocunque delicto reus vel legibus obnoxius Whosoever in his Kingdom guilty of any oâ—fence or obnoxious to the Laws should fly to the Abby or Island of Croyland he should be there free from any Arrest or pursuit sicut in Asylo vel in Camera Regis propria as in a Sanctuary or in the Kings own Chamber then understood not to be likely to be molested with any Arrest or Imprisonment of any that were attending in it And put our wise and prudent King Alfred who sate in the Royal Throne of our Brittaine about the year of our Lord 877. In the more incult and fierce behaviour of our English and Saxon Ancestors who thought his House deserved a Priviledge not allowed to Ordinary or Subjects houses in minde to make a Law as Mr. Lambard in his Latine Version of our Saxon Laws reciteth it Sapientum adhibito Consilio by the advice of his wise men much like a Parliament qui in Regia Aula dimicarit ferrumvè distrinxerit Capitor Regem penes arbitrium vitae necisque ejus esto That he that should fight or draw his Sword in the Kings Palace or Court should be taken or punished with death or otherwise as the King pleased Which if the Annals of Winchester may as they ought to be credited were but the Laws of the Brittons translated into â—he Saxon Language by the assistance probably of Asser Menevensis or of S. David's a Britton who was invited to his Court by that worthy Prince and made as it were one of his Domesticks or Maenials The Courts and Palaces of our Ancient Kings being likewise such Asylums or Priviledged places as by a Law made by King Edmond who Raigned in the year of our blessed Lord 940. Si quiâ— ad Templum Oppidumvè Regium confugerit eumque alius oppugnarit damnovè affecerit he which should hurt or molest any that fled to the Temple or the Kings House should be punished but withal enacted that non fore ei qui sanguinem humanum effuderit suffugio domum meam ni prius Deo ac Caesi cognatis cumulatè satiffecerit praeterea impleverit quodcunque ei ab Episcopo in cujus Dioecesi acciderit imperatum the Kings House
have been permitted or are to Ride or come into the Castle Gate with his Hat on or covered Those vast Empires of the Ottoman or Turk Persians Mogor and King or Emperour of Japan are not without thosâ— or the like Reverences not only by their profound silences and observations more then ordinary in their Apartments and Retirements but by other Demonstrations of Honour and acknowledgements of Respect to their Soveraign Princes Houses or Palaces Nor are such or the like Reverences or Respects due to the Houses or Courts of kings unknown or disused even amongst the more Heathen and Barbarians who although they are too much conversant with Ignorance Rudeness and Incivilities are notwithstanding by the Principles Law and light of Nature guided and directed unto it In the City and Countrey which was the Queen of Sheba's the people do use such Reverence to the Kings Houses or Palaces as although the Gates do stand open no man dares presume to enter or to touch them Before any do come to the Court or Tent of Prete John Emperour or King of Ethiopia or the Abassines they do alight of their Horses and begin to do their accustomed Reverences stooping down with their right hand unto the ground and betwixt the Prete or Kings Tent and the Tent of the Judges no man passeth on Horse-back in Reverence to the King and his Justice but all do alight and go on foot When any do come to the first Hall of the King of the Maldives Palace who is King of thirteen Provinces and One thousand Isles where His guard are No Lord or Plebeian man woman or child dare go further except the Domestical Officers of the King and Queens and their Slaves and Servitors At the King of Achens Court in the East Indies before any man can come into the Kings Presence he must put of his Hose and Shooes hold the Palms of his hands together lift them above his head and bow with his body Amongst the rude and fierce Tartars he that hath been present with one that died was not to come into the house of the Mangu Chan within a year after The Barons and people who do come unto his Court do within half a Mile where the great Chan Resides make and continue a great silence a sign or token in the Eastern Countries of great Reverence every Baron carrying a little fair vessel to Spit in and after Covers it none daring to spit in the Hall into which before they do enter they put off their Buskins and put on Furre Buskins of white Leather giving the other to their Servants In the City of Nanquim is a Table of Gold wherein is written the Kings name in Memory of his Residence there which stands in the Palace Covered and being to be seen upon some of their Festival days covered all the Nobility of the City do go to do it Reverence In China and at Pequin they which are to pass by the Kings Palaces do descend and alight from their Horses and go on foot until they be passed Yea although the King doth not there reside and they do at other times make their Reverences unto the Kings Empty Throne And so much by the light of nature and the dusky and obscure glimmerings of it were the Palaces and Residences of their Kings and Princes Reverenced by the Mexicans a Populous Nation in the West Indies as all that were to come or appear before Montezuma their King or Emperour were except some Princes his kinsmen to come bare-foot Such therefore and so great Honours being so deservedly due to the Houses and Habitations of Kings and Princes the Affairs or business of the Soveraign Acted either within or without it are not certainly like Esau to be deprived of it's Blessing or what is appropriate or belonging to it but it ought as a very great truth to be subscribed unto by every one that will not abjure his own Reason the Laws and Reasonable Customes of England Prudence and Practice of all other Nations of Christendom and where ever the Light of Reason and Divine Wisdom have imparted their Glories that the business and affairs of the Kings-Servants in Ordinary are to be preferred and Take Place of the Affairs of any Subject or Private Person SECT II. That the Business and Affairâ— 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 His People WHen the General and Universal consisting of all the parts of a Body Politick and the Safety Care and Concernment of the whole must needs surmount any one or two or any Particulars or some Private mens necessities or occasions The brawls and controversies betwixt the Herdsmen of Lot and the Righteous Abraham for Pasture for their Flocks and Cattel were understood in that Particular to be no less then their Masters own Concernments And the Servants of every Master and consequently their business are by God himself and his never Erring Wisdom justly reckoned in the Tenth Commandment or Decalogue as a part of the Masters goods and Estate The Civil Law allows us to conclude that Servi rerum appellatione comprehenduntur Servants are accounted to be a part of the Masters Estate familiae significatione Servi includuntur and in a family Servants are included Familia continentur liberi homines bona fide servientes in a family are contained and intended Freemen aswel as Villains or Bond-men which serve therein Et familia unum quoddam Corpus constituit inde patimur Injuriam etiam per liberos uxorem servos etiam mercenarios nostros for a Family makes and constitutes a certain body and thereupon the Master of it may be said to be wronged in his Wife Children and Servants and sometimes in those which are hirelings And it was neither forbidden or disallowed by the Civil Law in Ancient times before better and more convenient Securities by Pactions and Obligations were found out Servos Ancillas tanquam bona Catalla oppignorare to Pawn or Deliver in Pledge their men Servants or maid Servants Our Saxon Laws intended no less when they did Ordain that every Lord or Master should be obliged to bring his Servant to Justice Our liber Censualis or Doomesday Book made about the 16 th year of the Raign of William the Conquerour as an Inquisition or extent of every mans Estate in the Kingdom both Real and Personal doth therein Reckon Servos Ancillas villanos as well Men-servants and Maid-servants as Villains or Bond-men And our Laws do allow an Action in the Masters name for the beating or wounding of a Servant per quod servitium servientis sui amisit whereby he lost the use or service of his Servant By the Laws of the Old Almains uniusquisque pacem habere debet ad ducem veniendo de illo revertendo Et nullus praesumat hominem de
Henry the Eight cap. 13. It was upon Complaint made in Parliament that it was usual in the County Palatine of Chester that upon the suggestion of any Person that was Indebted to any other Person or Persons coming to the Exchequer within the said County Palatine to pay the Kings Rents and Monies and there taking a Corporal Oath that he or they shall pay his or their Creditors at such time as he or they should be able thereunto the Officers of the said Exchequer have used without Warrant to grant out of the said Exchequer a Writ in Nature of a Protection whereby the Creditors were greatly delaid and in manner defrauded to their great Impoverishment It was Enacted that the said Writ of Course without the Warrant of the King His Heirs or Successors containing any such Protection be no more granted any Vsage or Priviledge to the Contrary notwithstanding which gives an Allowance to any that in such a Case shall be granted by the King Warrant By the Reformation of the Ecclesiastical Laws intended to be made by King Edward the sixth by His Commission directed unto thirty two Commissioners as well Lay-men and Doctors of the Civil Law as Bishops and Divines Issued by Direction of an Act of Parliament made in the third year of His Raign Divine Offices may be celebrated in familiis Nobilium quibusque non licet occupatione publica distractis in Communibus Ecclesis versari in the Houses or Families of the Nobility who by Reason of the Kings and Publick Affairs could not so conveniently come unto their Parish Churches And it was not wont to be denied either to be Law or Reason in England that such as Rid post upon the Kings business might if his Horse were tired or for the greater speed in the Kings Affairs Exchange or take any mans Horse whom he met upon the way And therefore when the Houses of Kings and Princes as to their bare Walls and Rooms abstractly considered are so greatly to be honoured respected and distinguished in their Rights and Priviledges from those of the Nobility and Common People and every thing done within that Precinct or Virge being in the Placita Aulae Records or Rolls of the Marshal of the King in the Raigns of King Edward the first and King Edward the third In Trespass and other Actions depending betwixt the Kings Servants or such as might sue there alleaged to be in Presentia Regis in the Kings Presence And the affairs or business of the King whether domestick or Publick being of so great a Concernment to the People and so much to be preferred before any others or that of the Private the Servants certainly who do attend their Soveraign therein may challenge some more then ordinary Priveledges and Respects then others of His Subjects which are not His Servants in Ordinary SECT III. That the Kings Servants in Ordinary are not to be denied a more then 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 License of the Lord Chamberlain or other the Officers of the Kings Houshold to whom it appertaineth first had and obtained WHich Prudent Antiquity and more respectfull Ages could never tell how to deny for if we will look into the Records of time which by shewing us the Errors and Successes of former ages and experiments and teaching us how to Judge of the New by the Old are and will be found to be the best Instructors if we believe as we ought the Divine Inspiration and Counsel of the Prophet Jeremy and do but observe the old ways and paths of a better world there will be enough found to justifie it For the book of God will evidence the great Honour and preferments given in the morning of the world unto Joseph that great Pattern of Fidelity and preferment for it by Pharaoh King of Egypt when he set him over his house made him Steward thereof took his Ring off his hand and put upon his Arrayed him in vestures of fine Linnen put a Gold Chaâ—â— about his neck made him to Ride in the second Chariot with a cry before him Bow the Knee And by the Custom of the Nation or Children of Israel from whom the Egyptians are believed to have borrowed some of theirs where the Beams of the Divine Wisdom enlightened their Laws and Customs the Servants of the King or Prince were carefully chosen and merited a more then Ordinary regard which the well meaning Vriah well understood and had no mean opinion of when he ranked David's Servants amongst the no small concernments of that Nation in refusing to go down unto his own house and refresh himself because the Ark of God and Israel and Judah did abide in Tents his Lord Joab the Kings Lieutenant General and the Servants of the King were encamped in open field And we find David so careful of the honor of his Servants or Embassadors as he made the misusage of them by the King and Children of Ammon to be a cause of his War against them and their destruction and was so unwilling till necessity enforced it that his own Subjects should know of the scorns and reproach cast upon them by cutting their Vests or Garments so short as their naked Buttocks might be seen and the shaving off only the half of their beards as he gave them Order to tarry at Jericho until their Beards were grown out When the King of Syria sent his Letters of recommendation by Naaman the Captain of his host and a great man with his Master to recover him of his Leprosie the King despairing to get it effected and not believing that the Prophet Elisha could do it and fearing least the King of Syria might take the not recovering of his Servant as a disrespect unto himself rent his clothes and said unto his Council or those which were neer unto him Consider I pray you and see how he the King of Syria seeketh a quarrel against me All which with the Excellent Order of David's Servants the Magnificence of Solomon's house which was in building thirteen years by some thousands of workmen with his Servants various Offices and Honourable Imployments therein did not a little contribute to their respect The Princes or heads of the Tribes attending upon the King and the Honourable women upon the Queen mentioned in the 45 th Psalm of David And the Honourable opinion which Solomon the wisest of men had of the Service of a King when he said which is Registered amongst his wise sayings or Proverbs That a man diligent in his business should stand before Princes he shall not stand before mean men The Princes that were in the House of Jehoiakim king of Judah recorded in the 36 th Chapter of of the Prophet Jeremiah and of Zedekiah King of Judah in the 38 th and 41 th Chapter of that Prophet and Benaiah one of
now and for many ages past allowed and gave the reason of it multis sane respectus esse debet ac multa diligentia ne quis pacem Regis infringat maxime in ejus vicinia for that there ought to be a more than ordinary respect had thereunto and much diligence used that none should break the Kings peace more especially so near his House which must of necessity and by all the rules of Reason and Interpretation of Laws and the meaning of the Law-giver be only understood to referre unto the peace and quiet of his own House and Servants and not unto the Kings care of the publique and universal peace of the Kingdome which was not be streightned or pend up in so narrow a room or compass when as many of his other Laws did at the same time provide for the universal peace and this only aimed at the particular peace and tranquillity of himself and his Family Nor can it appear to have been any intention of that foresighted and considerate Prince that any Sheriffes or Bayliffs should upon all occasions false or malitious or trivial suggestions presume to Arrest and hale from his Palace or Service any of the necessary Attendants upon his Person Majesty and Honour or be the sawcy and irreverent Infringers of their peace which by that Law Intituled De pace Curiae Regis the peace of the Kings Court or Palace he took so great a care to preserve At the Parliament of Clarindon holden by King Henry the Second in Anno Dom. 1164. When that Prince's troublesome Raign was afflicted with the Rebellion of his Sons and Domineering of a Powerful Clergy backt by the Papal power and Insolency it was not thought to be either unreasonable or illegal when Excommunications which the lofty Clergy of those times were not willing to have clipped or limited and the Thunderbolts fear or fury thereof did farre exceed any effect or consequence of an utlary to ordain That Nec aliquis Dominicorum Ministrorum Regis excommunicetur nec terrae alicujus eorum sub Interdicto ponantur nisi prius Dominus Rex si in terra fuerit Conveniatur That none of the Kings Servants or Officers be excommunicated or their Lands interdicted untill the King if he be in the Kingdome be first Attended And the reason of this Law was saith Sir Edward Cook for that the Tenures by grand Serjeanty and Knights service in Capite were for the Honour and defence of the Realm and concerning those that served the King in his Houshold their continual Service and attendance of the King was necessary And Glanvil who was Lord Chief Justice of England and wrote in the Raign of King Henry the second or of King Richard the first of the antient Laws and Customs of England if that Book as some have thought were not written rather in his name then by him howsoever it is ancient and allowed both here and in Scotland to be very Authentick saith that Per servitium Domini Regis rationâ—biliter essoniare potest et cum in Curia probatur hoc essonium et admittitur remanebit loquela sine die donec constiterit â—um ab illo servitio domini Regis rediisse Vnde hi qui assidue sunt in servitio Domini Regis Cui necessitates omnes forenses cedunt to which all other businesses or occasions saith the Learned Spelman in his gloss upon Essoines are to give place ut Servientes ipsius hoc Essonio non gaudebunt Ergo circa eorum personas observabitur solitus cursus Curiae et Juris ordo That a Defendant or Tenant being in the service of the King may rationally be essoyned or for that time be excused and when the Essoyne or excuse is proved in Court and admitted the Action or plea shall be without day and suspended untill it shall happen that he be retorned out of the Kings Service but those that be in the Kings daily Service as his ordinary Servants are not to be allowed such an Essoyne or excuse therefore as to their persons the accustomed course of the Court and order of Law is to be observed but doth not declare what that solitus Curfus Curiae et juris ordo that accustomed course and order of Law in case of the Kings Servants in ordinary then was Or whether their priviledge was not so great and notorious as not to need any Essoine Yet as the Law then was saith that where sometimes both the Plaintiffe and the Defendant did not appear but made default tunc in Domini Regis voluntate vel ejus Justitiariorum erit si voluerint versus utrumque contemptum Curiae vel falsum clamorem prosequi then it shall be in the good pleasure of the King or his Judges if they will prosecute either against the Defendant for his Contempt or against the Plantiffe for his not Prosecution By which again the King was at his liberty to protect or priviledge his Servant in ordinary if the Law had not allowed them any such priviledge as well as to grant his Writ directed to the Judges ad warrantizandum to allow or receive an Essoine for one that was in servitio Regis in his Service recited by Glanvil with an Ideo vobis mando quod pro absentia sua illius diei non ponatis in defaltam nec in aliquo sit perdens therefore I command our Kings not then in their mandates writs or Patents speaking in the plural number as we and us c. You that you enter not a default against the Defendant or Tenant for his absence or not appearing at the day appointed and that he be not damnified thereby And in that Kings Raign and the beginning of the Raign of King Richard the first whilst Chief Justice Glanvil attending his Court and Justice his Warrs in the Holy Land died at Acon and in all those foregoing times and ages it was not probable that any Inroads should be made upon that antient just and rational priviledge of the Kings Domestiques or other Servants in ordinary for that some of the Stewards and great Officers of the Kings most honourable Houshold who had under their several Kings the protection as well as Government of the Servants in ordinary of the Royal Family as Prince Henry the eldest Son of King Henry the second and William Longchampe in the first year of the Raign of King Richard the first Lord Chancellour of England were whilst they held their several other places in the Kings Courts successively Lord Chief Justices of England and attended in the Kings Court. And it appeareth by Glanvil that Actions or Summons or Attachments of Debt and other process were then not infrequently directed to the Sheriffe of the County where the Defendant dwelt made retornable coram me i.e. Domino Rege vel Justitiis meis i.e. Justitiis suis before the King or his Justices in the abstract apud Westmonasterium at Westminster i.e. The Kings House or
Servants and Followers so much follow the King and his Court and were kept in the Kings House or palace as in old time King Solomon in his Stately Porch of Judgment built in his House did judge and hear Causes and as the Kings of France did long ago in their Palaces and as long before the Romans had their Senate or Parliament House their Forum or place for their Courts of Justice near adjoyning to their Kings Palaces As our Bracton in the latter end of the Raign of King Henry the third called the Court of King's Bench as Sir Edward Coke saith Aulam Regiam the Kings Hall because the Judges of that Court did sit in the Kings Hall and the Placita Aulae Actions or Pleas of the Kings House or Hall were determined before the Steward of the Kings House And that King who began his Raign in the year 1216 labouring under great difficulties the power of many of his unruly Barons and very great necessities as well of mony as friends had notwithstanding the many Diminutions endeavoured of his Prerogative and regality no assault or incursions upon the Rights and Legal Priviledges of his Domestiques or House-hold Servants but had allowed him that Reverence and respect which by the Civil Law that universal Guide or Director of Reason and Justice and next to the Laws Eternal and its Deputy or Law of nature written in the heart of Mankind the Mother Nurse or Parent of a great part of that which is called our Common Law is and ought to be due and payable to the persons and Courts of Princes but enjoyed so much of it as Bracton who was a Learned Lawyer and afterwards a Judge and as some have believed a Chief Justice in the latter end of that Kings Raign or the beginning of the Raign of King Edward the first his Son in his Book De legibus et Consuetudinibus Angliae of the Laws and Customs of England whilst he disputes where a Defendant excuseth his not appearing to an Action when he is in Servitio Regis in the Kings Service and whether being summoned before he was in the Kings Service and might send or make his Attorney should be excused is willing to conclude in the negative yet forbeares to do it with a sed ita esset but so it would be si quis posset factum Domini Regis Judicare et in omnibus istis casibus magis erit spectanda voluntas Domini Regis quam jus strictum cum servitium Domini Regis nulli debeat esse damnosum et sicut non debet esse tenenti when it seems the Action spoken of concerned plea of Land Damnosum ita non debet esse Petenti injuriosum if any were to be Judg of the Kings Actions and that in all those Cases the will of the King was more to be regarded than the strictness of the Law when as the service of the King ought not to be grievous unto any And as it ought not to be a grievance unto the Tenant so ought not the Plaintiffe to take it to be a wrong done unto him And was of opinion that the solemnity and course of process may be sometimes shortned propter reverentiam personae vel privilegium contra quem illata fuit injuria vel contra nobiles personas ut si Injuriatum sit Domino regi vel reginae vel eorum liberis fratribus sororibus c. For reverence or respect to the person or in regard of the priviledge due unto him unto whom the wrong is done as if it were done to noble Persons or some wrong done unto the King the Queen or their Children Brothers Sisters c. And when he would not allow the priviledge or Essoine of being in the Kings Service unto a Sheriffe or Constable who were the Kings Officers during the time of their imployments was content to do it ubi aligua causa emergat necessaria ex inopinato ubi praesentia talis debet esse necessaria sicut iter Justitiariorum vel incursus hostium vel hujusmodi quae guidem Causae sufficientes sunt ad excusationem de servitio domini regis where there was any emergent and expected Cause where their presence was necessary as to attend in the Iter or Circuit of the Judges or upon an Invasion of Enemies or the like which were causes sufficient of excuse by reason of the Kings Service dum tamen ad quemlibet diem datum per Essoniatorem de servitio Domini regis habeat Essoniatus warrantum suum per breve Domini Regis so as at the day of Essoin that he or they were in the Kings Service the Kings writ or protection be produced to prove it Item excusatur quis si implacitatus fuerit in Curia Domini Regis vel vocatus ad Curiam Regis ob aliquam Causam in aliquibus Curiis inferioribus likewise any one impleaded in the Kings Court or called or summoned to the Kings Court upon any Cause or occasion shall be excused in inferior Courts Sed quid but what saith that Learned Judge dicendum erit de Curia Christianitatis cum magis obediendum sit Deo quam hominibus Hoc dico quod ad hunc differendum erit et quod dominus Rex warrantizare poterit ob reverentiam quae principi debetur shall be said if the Cause be depending in the Court Christian when God is more to be obeyed than men I say that in such a Case it is to be left unto God and the King may warrant his so doing in respect of the Reverence which is due to the Prince Being not much different from the Cares which some Forraign Princes did about that time hold fit to be taken of their Domestique Honors and Servants For by the Laws of the Sicilians and Neapolitans made or confirmed by Frederick the Emperor about the year 1221 the Magister Justiciarius magnae Curiae Chief Justice of the King's House or Court had the Cognizance or hearing of Causes de questionibus nostrorum Curialium qui immediatè nobis assistunt de speciali conscientia nostra in curia commorantium qui de Curia nostra sine speciali mandato nostro non possunt recedere or questions concerning any of the Kings Courts who do immediately attend us and by our privity are residing in Court and cannot depart without our special Licence Et observent diligentissime Judices ut in occasione injuriarum Curialium personarum dignitatem considerent et juxta personarum qualitatem eorum quibus fuerit facta injuria ipsis autem facta injuria non ipsis duntaxat sed etiam ad Regiae dignitatis spectat offensam The Judges are to take an especial care that in all accusations concerning any of the Kings Servants or Courtiers they take into consideration their worth dignity and quality seeing that a wrong done unto them is an injury or wrong done unto the Dignity of the Prince And when our
contrary to the Common Law of the Land and in despite of the King refused to obey it The Parliament acknowledging the aforesaid Rights and Customs of the said Clerks of the Chancery and the contempt of the King did ordain Que breif soit mandez a Maior de Londres de attacher les divz Viscontes autres quont este parties maintenours de la guerele dont ceste bille fait mention per le Corps destre devant le Roy en sa dite Chancellerie a certein jour a respondre aussibien du contempt fait a nostre Seigneur le Roy ses mandements prejudice de son Chanceller come al dit Clerk des damages trespas faites a lui That a Writ should be awarded and directed to the Mayor of London to arrest by their Bodies the said Sheriffs of London and others which were parties and maintainers of the said evil action to answer before the King in his Chancery at a certain day as well for the contempt done to the King and his Commands and prejudice of his Chancellor as also to the said Clerk for his damages and wrong sustained And that King by a Statute made in the 36 year of his Reign forbidding under severe penalties any Pourveyance to be made but for the King and Queen and their Houses and to take any such Pourveyance without ready Money there is a pain or penalty to be imposed as Sir Edward Coke upon view of the Record thereof hath observed upon the Steward Treasurer and Controller and other Officers of the Kings Houshold for not executing that Statute which need not to have been if the cognisance of the Offences therein mentioned had not by that Act been thought fit to have been left unto them And was so far from being perswaded to release the constant Attendance of the Justices of the Kings Bench as when the Commons in Parliament in the 38th year of his Reign Petitioned him That the Kings Bench might remain in some certain Place and not be removed he answered in the negative That he would not do so And where the Court Marshal was so anciently constituted for the Placita Aulae sive Regis Palatii for Pleas Actions and Controversies concerning the Servants of the Royal Family when any should happen to arise amongst them and retained in the Kings House and Attendance and the Court of Common Pleas was designed and delegated to do Justice unto all the Common People in Real and Civil Actions in certo loco a certain place assigned in the Kings House or Palace for then and long after until our Kings of England made Whitehall their Palace or Residence it is probable that the Bars Benches and Tribunals of the Courts of Chancery Kings Bench Common Pleas Exchequer and other Courts since inhabiting that great and magnificent Hall of Westminster were movable and not so fixt as they now are and allowed not to travel with the King and his Court or to follow it and the Court of Exchequer to take care of the Royal Revenue in its Income Receipts and Disbursments It cannot without some affront or violence done to Reason be imagined that our Kings who would have that Court of the Marshal to be neerer their Persons than any other of their Courts of Justice always attending and resident for the concernment properly of their Houshold and Servants and because they should not be inforced from their daily Service to pursue their Rights or seek for Justice before other Tribunals should ever intend or be willing that their Servants and necessary Attendants should as Defendants and at the suit of Strangers and such as are not the Kings Servants be haled to Prison diverted from their Service or obstructed in it when as Justice in the old more dutiful and respectful way might as cheap and with lesser trouble be had against them at the Fountain or Spring of Justice by the King himself the Alpha or beginning of it and Omega the Dernier Resort or last Appeal where his ordinary Courts of Justice fail and cannot do ir And where some of our late Kings and Queens of England not to be wanting unto the Cries and Complaints of their People for want of Justice did afterwards appoint and allow another Court in the Reigns of King Henry the seventh Henry the eighth Edward the sixth Queen Mary Queen Elizabeth called and known by the name of Curia Supplicatioâ—um Libellorum the Court of Petitions and Requests where those that were honoured with the Title and Offices of Judges and as Commissioners and Masters of Requests for those particular Causes and Cases were Bishops or Barons Lords Stewards of his Houshold and other Great Officers thereof Deans of the Chappel and Doctors of Law and Divinity were stiled or called Concilium Regis that Stile or Title and Masters of Requests as Synonyma's then signifying one and the same thing And a Mastership of Requests was so highly esteemed in the seventh year of the Reign of Q. Elizabeth as there was besides Walter Haddon Doctor of the Laws and Thomas Seckford Esq a Common Lawyer the Bishop of Rochester a Master of Requests and in the 22. year of her Reign Sir William Gerrard Knight Lord Chancellor of Ireland was during the time of his being in England made a Master of Requests Extra-ordinary and by the Queens Letter of Recommendation to the other Masters of Requests ordeined to sit amongst them and their Decrees were sometimes signed by the King himself with his Sign Manual and in the tenth year of King Henry the eighth divers Bills were exhibited unto Thomas Wolsey Archbishop of York Chancellor of England and Cardinal and Legate a Latere to granr Process for the Defendents appearance to answer before his Grace and others of the Kings most Honourable Council in Whitehall but at other times before and since were constrained to appear before that Council by Writ or Process of Privy Seal or a Messenger of the Kings that Court as it may be observed by the Registers and Records thereof coming to be called the Court of Requests only about the beginning of the Reign of King Edward the sixth And such care was taken by King Henry the seventh to hear and redress the Grievances and Laments of his People as in the ninth year of his Reign he assigned and enjoyned them certain months and times diligently to attend unto that business the greatest Earls and Barons having in those times been made Defendants to several Bills and Petitions many of the Learned Serjeants of the Law there pleading for their Clients and Sir Humphrey Brown Kt. one of the Justices of the Court of Common Pleas in the sixth year of the Reign of King Edward the sixth being made a Defendant in this Court where the Plaintiff after 12 years delays in Chancery and an Appeal from that Court unto this obtained a Decree against him and yet no Pleas and Demurrers are found to be put in
with the Duty and Respects never to be denied to Superiority in order more especially to Government being as well to be allowed unto our Kings and Princes and consistent with right Reason as it was in the more ancient times of the Empire or Rome when the Magister Officiorum or Steward of the Emperors House or Palace cui totius Palatii cura pertinuit to whom the whole care of their Houshold did appertain apud quem tam in Civilibus quà m Criminalibus causis respondere tenentur and before whom all the Servants of the Houshold were obliged to answer as well in Causes Civil as Criminal could do no less then incite and advise them so watchfully to guard the necessary and allowed Priveledges of their Servants warranted by the dictates of right Reason and our own Laws as well as the Laws and Customs of many of our neighbour Nations And therefore by an Act of Parliament in the second year of the Reign of King Richard the second confirmed by another in the twelfth it was ordained That those that raised horrible and false lies against the Prelates Dukes Earls Barons great Nobility and great Men of the Realm as also of the Chancellor Treasurer Clerks of the Privy Seal Stewards of the Kings House being the more special and eminent part of his Domestick Servants and those that did attend him and in ancient and more respectful Times and Ages to the Servants and Honour of Princes did wear no less a Title than Proceres Palatii Lords or Men of great eminency in the Palaces of Kings and Emperors Justices of the one Bench or the other and other great Officers of the Realm whereby debates and discords might arise betwixt the said Lords or the Lords and Commons should be taken and imprisoned until they had found him that first moved it and if they could not should be punished by the advice of the Kings Council And in the ninth year of his Reign John de Leicester one of the Clerks of the Chancery being sued in the Court of Common Pleas by the name of John de Sleford of the County of Leicester for a Debt of 24 l. 16 s. and after his Writ of Priviledge out of the Chancery which commanded the Justices of the said Court of Common Pleas to surcease any further proceeding in that Action being constrained to bring his Writ of Error to reverse a Judgment thereupon notwithstanding had against him the King pro eo quòd principale placitum loquelae praedictae ad cognitionem Cancellarii nostri nullius alterius juxta consuetudinem Cancellariae merè pertinet ex consequenti ejus accessarium ad eundem Cancellarium pertinere debet volentes Jurisdictionem Privilegium Consuetudinem hujusmodi à tam longo tempore obtenta approbata Illaesa firmiter observare in regard that the principal Plea or Suit aforesaid belonged only to the cognisance of his Chancellor and none other according to the custom of the Chancery and that by consequence the cognisance of the Accessary or any thing concerning the said principal Plea or Suit belonged to the Chancellors determination and was willing to preserve the said Jurisdiction Custom and Priviledge for so long a time continued and approved commanded the Record and Process aforesaid with all which thereunto appertained to be sent and certified into the Chancery that he might do thereupon as to Justice appertaineth In the 35 year of the Reign of King Henry the sixth the Abbot of Westminster having an Action depending in the Court of Common Pleas against one of the Yeomen of the Kings Buttery and an Essoin being cast and allowed that he was in the Kings Service the King at the day appointed and given by the Essoin sent his Writ of Privy Seal to the Justices of that Court to signifie that the Defendant was in his Service before the day given by the Essoin and at the same day and every time sithence By a Statute made in the third year of the Reign of King Henry the seventh it was declared to be Felony for making Confederacies though not brought to effect or not so far as to an overt act our Laws declaring that affectus non punitur thoughts and intentions only are not to be punished to imagine the death of the King or of any Lord of this Realm or any other person sworn to the Kings Council Steward Treasurer or Comptroller of the Kings House by any of the Kings Houshold Servants and ordained That such Offences should be inquired by 12 sad men of the Cheque Roll of the Kings Houshold and determined before the Steward Treasurer and Comptroller or any two of them Which may evidence the intention of that King and his greater Council the Parliament to submit as little as might be such Offences of his Menial Servants unto the Judgment and Determinations of his Court of Kings Bench which otherwise was the most proper Court and means for the Trial thereof In the Reign of King Henry the eighth George Ferrers Gentleman his Servant and a Member of the House of Commons in Parliament being arrested and taken in Execution and Sir Thomas Moyle Knight then Speaker of the House of Commons and the Knights and Burgesses in Parliament assembled sending the Serjeant at Arms attending upon them to the Compter in Breadstreet in London where the said George Ferrers was detained a Prisoner to demand him the Officers of the City and others assaulted and grievously misused him of which a Complaint being made to the King he called before him all the Judges of the Kingdom declared unto them That he being Head of the Parliament and attending in his own Person upon the business thereof ought in reason to have Priviledge for him and all his Servants attending there upon him so as if Mr. Ferrers had been no Burgess or Member of Parliament but only his Servant that in respect thereof he was to have a Priviledge as well as any other To which all the Judges declaring their assent by Sir Edward Mountague Knight Lord Chief Justice of the Court of Kings Bench the Grandfather of the now Earl of Manchester Lord Chamberlain of the Kings Houshold an Order was made to fine the Sheriffs of London punish the Riotors and deliver Mr. Ferrers out of Prison but in compassion of the Creditor an Order was made that he should not lose his Money for which he had taken him in Execution And so great a regard was in that Kings Reign had of the Gentlemen of his Privy Chamber as that great and imperious Favorite Cardinal Wolsey Archbishop of York being at Cawood Castle in Yorkshire arrested by the Kings command by the Earl of Northumberland attended by Mr. Welch one of the Gentlemen of the Kings Privy Chamber of High Treason and being unwilling to obey the Earls Authority unless he would shew the Kings Commission for it which the Earl refused to do the Contest at the last
to have done amiss when in Compassion or Justice in the case of the Kings Servants he shall moderate the furies and unjust pretences of unrighteous and unreasonable Creditors or Complaynants and according to the Laws and reasonable Customs of England and the Kings most Honourable Houshold give them and the Kings Servants a just and fitting protection respite or time of Respiration the rather if he find that some of their wants and distresses either would not or could not so quickly or heavily have fallen upon them if the publique necessities and occasions had not for the Protection and safeguard of those very Creditors or Complainants comprehended in the universality of the people drawn away from the King the Money which might have enabled him to a more Regular and Ordinary way of paying them their Wages Salaries or Pensions And should if right be done unto it give a less cause of disturbance to the Will or Fansies of those who would have it otherwise than the course generally well approved and now holden in the City of London in the Lord Mayors Court called the Court of Requests or Conscience Indulged at the first by no greater Authority then an Act of Common Council made by the Lord Mayor Aldermen and Common Council of that City about the ninth year of the Raign of King Henry the eight continued by some other Acts of their Common Council and strengthned by some Subsequent Acts of Parliament where upon any Action Commenced in the Sheriffs Courts of Guildhall London whereby any debt under forty shillings is demanded of any Freeman of that City the Defendant may before or after Verdict mark it as it is there Termed in a Clarks book attending for that purpose the Lord Mayor in his house and by that manner of transferring the Actions or proceedings before his Lordship in his Court of Conscience procure as much of it as he shall be able to obtein with an Order in case of Poverty or weakness of estate to pay it by Six pence or twelve pence a Week or some other small manner of payment the Plaintiff being to be Arrested or Attached if he shall disobey or transgress his Lordships moderation therein And such or the like Moderations may Aswell be allowed to the Lord Chamberlain and other great Officers of the Kings most Honorable Houshold in the case of the Kings Servants as it is and hath been to the Judges of the Courts at Westminster in the case of all the Subjects of England where in Order to the Salvo Contenemento the saving the Reputation and support of failing or fainting Debtors or Defendants and the Moderata Misericordia Moderation in punishments which in the reconciling of Justice and Compassion is not only Injoyned and Pattern'd by our many Excellent Laws and reasonable Customes since the Norman Conquest but ordained by a Law of King Canutus many years before in his direction to his Judges Vt in mulctà Irrogandâ adhibeatur moderatio ut ad divinam Clementiam temperata hominibus tolerabilis esse videatur that in Punishments or Penalties there be such a moderation as may resemble the Divine Clemency or compassion and be the more Tolerable for men to bear it from whence or the like Dictates of Right Reason have Issued and been warranted the Authority of those Sage Expounders of our Laws and distributers of Justice in their Remission of Penalties of Bonds and Obligations Moderation of Costs and Mitigation of Penalties stay of Posteas Verdicts and Executions Arrests of Judgments granting Imperlances Lessening of Fines incertain in Copyhold estates and giving them a reasonable Time of payment disappointing of Rigors Extremities and Oppression by the relieving of the Oppressed wherein the wisdom of our Laws and the discretion and Office of Judges and Courts do very often in some or other of those and very many other the like well regulated Acts of their prudence care and authority which might be here instanced bless and make happy this Nation Such or the like Princely Cares of our Kings and Princes for their Domestiques or Servants faithfully serving and attending upon their Soveraign giving us the reason why above three hundred and forty years ago when Fleta wrote his Book It was the Custom of the Aula Regis the Kings Palace si de aliquo familiari i. e. famulari Regis fiat querimonia if a Complaint should be made of any of the Kings Servants or Houshold he should be summoned to answer and if he came not at the day prefixed he should be Attached which is by sureties or pledges or some of his Goods or Chattels taken whereby to compel him to appear and another day prefixed and if he did not then appear his body should be taken if he were personally summoned within the Virge and should be brought before the Steward and the Marshal having him in his custody videlicet sub tali loco partito secundùm Legem consuetudinem Hospitii in a place to that purpose according to the Law and Custom of the Kings Houshold appointed was to be answerable for him quòd nisi de corpore respondeat de petitione satisfacere tenebitur supposito quòd de corpore fuit seisitus but if the Marshal did not keep him in Custody whereby he might have his body forth coming he should if he was ever seised of his body make satisfaction to the party complainant But where any person who is not of the Kings Servants or House should desire to sue or prosecute a Debtor in the Court of the Kings Palace before the Steward thereof he was to produce the Bond wherein the Debtor obliged himself ro their Jurisdiction and in that case the Debtor was to be destrayned until he found pledges to answer the Action Et si Pleg invenerit quinquagesimum diem litis receperit illo die non comparuerit and if he should find pledges and not appear within fifty days after for so many days it seems was then allowed unto him he was to be Arrested and detained until he gave Bail it being also as reasonable that a like or a greater time should be given to one of the Kings Servants complained of before the Lord Steward or Lord Chamberlain or other great Officers of the Kings Houshold to whose Jurisdiction it belongeth for in those more Reverential Times and acknowledgments of Superiority It was a Rule as well as an Ancient Custom that mitiùs agendum cum familiaribus servientibus Regis dum tamen Domestici sint Regis Collaterales the Kings Servants in Ordinary and Domestiques were to be more gently and respectfully dealt with then strangers quòd primò debent per Mariscallum summoniri quam si supersederint tum primò Distringantur tertiò si necesse fuerit Attachientur and ought first to be summoned by the Marshal and if then they did not appear they were to be Distreined and at or after the third distress if need were should
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
but is no more than a Gownless mis-called Alderman and can have no more of truth or reason in it than for a Chambermaid to a Lady dressed up in her Ladies old Clothes to believe her self to be a Lady because some overcomplementing small piece of wit hath mistakenly called her so or for a man of 20 l. per annum Free Land to believe himself to be a Knight and his Wife a Lady because when according to the Statute made in the first year of the Reign of King Edward the Second he was summoned to take the Order of Knighthood upon him he compounded and paid a Fine to escape that dignity which was too big for his quality or estate and as great a madness and ridiculous as that of Don Quixot or our late Countryman Parsons the Taylor fancying himself to be the Romance Knight of the Sun or for a Bum Bayliff or Countrey Catchpole to imagine himself to be a Knight or his Wife a Lady because in imitation or observance of some antient courses or usages in our Laws he was upon a Writ of View in a Writ of Right or Entry Dower or Formedon retorned by the Sheriff to have been present at the View by the title or addition of a Knight and as little consonant to reason and truth as for a Sheriff or Justice of Peace to think himself to be an Esquire because the King by his Commission for that particular time or purpose was pleased to stile him so or if it did conferre such a Title or Dignity yet it ought not to remain either to a Sheriff or Justice of Peace when they are exuti dignitate out of those temporary Offices by the Office of Sheriff being determined or the turning the Justice of Peace out of Commission which our reason as well as the Civil Law will not permit when by the summoning of a Great man of England to assist in the House of Peers in Parliament or to attend therein he is not thereby to be accompted a Baron by Writ or to have Fee therein to him and his Heirs unless he have been thrice summoned and obeyed those Writs And the Civil Law will tell us that Si ratione alicujus officii debeantur aliqua signa seu insignia if any Armes be given the like being to be said of Titles by reason of any place or office they are but durante officio finito illo transeunt ad successores officiarios during the continuance of that Office which being determined it goeth unto those which do succeed in that Office And that and the Law of Nations will give us the reason of a greater respect to be given unto the Kings Servants rather than unto any other mens Servants when the Emperors of the West and East were so carefull that their Domestick Servants and Guards should have a more than ordinary regard wheresoever they came or had any occasion of business though in any part of their large Dominions far or remote from their Imperial Courts as in a Rescript of the Emperors Valentinianus Theodosius and Arcadius order was taken and a command given ut Domestici ac Protectores osculandi cum salutaverint Vicarium Praefecti Praetorii habeant potestatem poena enim Sacrilegii similis erit si his honorificentia non deferatur qui contingere purpuram Imperatoris digni sint aestimati that the Domesticks or Houshold Servants of note of the Emperors and the Guards attending the Court who were thought worthy to be about their persons when they came to salute the Deputy or Lieutenant of the Major Domo Lord Steward of the Emperors Houshold and General or Chief Captain of the Guards or the Governours of some Provinces or part of the Empire in the later Emperors times should be allowed to kiss him which the very learned Salmuthius in his Comment upon Guido Pancirollo interprets to be commonly a kissing of the hand as well as the sometimes receiving of a salute or kiss of the mouth which summi honoris loco tribuitur saith Cuiacius was esteemed to be the greatest honour for they deserved as much as the punishment usually inflicted upon those who committed Sacriledge which gave not due honour or respect unto those which were thought worthy to be near their persons And were so unwilling that any of their Servants which were imployed in any eminent places about their persons or affairs should when they had quitted their Offices or places be reckoned amongst the Vulgar as the Emperors Valentinianus and Theodosius did by their Rescript ordain that qui suae quodammodo adsidere Majestati videntur which had the honour to be near their persons should post depositum officium ab omni Indictionis onere seu Civilium seu Militarium judicum prorsus immunes after they had left their places be altogether free from all Taxes Civil or Military for si quis lateri Principis ipsius permissu adhaereat nobilis efficitur such of the Kings Servants as are attendant and near unto his person are reputed Noble and Honourable and their Virtue conjoyned with Riches and their imployment about the Fountain of Honour may well deserve a preheminence above other mens Servants when as the Service of such as received their honour from the Prince was as the younger Pliny said in his time pronum ad honoris iter a ready way to honour and gentleness or the bearing of Armes saith Sir John Ferne may be obtained by the service of the Soveraign according to the Rule of the Civil Law with which that learned Civil as well as Common Lawyer was not meanly or little acquainted adhaerentes lateri Principis eidem in officio quocunque minimo ministrantes nobilitantur those which are in the Service of the King and near unto his Person or imployed by him in the meanest Service are in some sort so enobled as to claim the bearing of Armes or Badges of Gentility and Ideo Coquum Principis in dignitatem haberi nobilem esse oportet omnes famulantes Principi sunt in dignitate therefore a Kings Cook ought to be so much respected as not to be denyed the like Priviledge and all the Kings Servants have a certain Dignity to them appertaining and some of our English Nobility have granted as an Earl of Stafford did to Mackworth one of his Servants Insignia Nobilium Coats of Armes to their Servants and Followers And the French Burgundians and Millanois as well as many of our antient English Nobility have heretofore permitted their Clients and such as held their Lands of them to take and use some part or resemblance of the Armes of their Lords or Seignors Wherefore the excellently learned Cassanaeus having travelled through the vast Volumes of the Civil and Caesarean Laws and wrote his Book entituled Catalogus gloriae mundi in the beginning of the Reign of our King Henry the 8th did not certainly stray or wander out of the paths of right
reason when he understands the Honour acquired by being the Servant of a Soveraign Prince to be as well the cause of their Priviledges and Immunities which he positively affirms to be ratione dignitatis Officii by reason of the dignity of their Offices and Places as the import and necessary use of their Offices and Places about the Person health and safety of the Prince in which the well-being of the Universality of the people and Body Politick are concentred And that they are called Curiales Courtiers ex quo cum Cura esse debent in respect of the Cares which they take in the service of their Prince mitius agendum Curialibus Aulicis quam aliis parcendum honori verecundiae domus Regiae his qui pro domo parentibus Regiis laborarunt the Servants of the King are to be more favoured than the Servants of other men and a special regard ought to be had unto the honour of the House or Palace of the King and those which do labour and take pains for the good thereof and the Kings Family that amongst the Domesticks or Servants of the King or Soveraign Prince omnis ordo recipit splendorem a Principe every degree or rank hath in some sort the resplendency and reflection of their Soveraigns imparted or communicated unto them Et cum Senatores excusantur a fortiori Curiales Familiares Principum nec ex eo eorum conditio deterior fieri debet cum circa Principem se obsequiales exhibent universis and when Senators or Parliament-men are priviledged by a greater reason ought the Princes Servants to be priviledged neither should their condition be made to be worse than theirs seeing that when they do Officiate about the Prince they do at the same time serve the People and Weal-publick and recounting some of the Priviledges of the Court Officers and Servants doth amongst others agree that Curiales in hoc privilegiantur quod praedia eorum non possunt alienari sine solemnitate that their Lands and real Estates cannot as other mens be aliened in a common and ordinary manner but by special words and expressions of the certainty of the cause and money given for it Et istud est in favore ipsorum Curialium ut Respublica habeat divites Curiales in tantum in hoc privilegiatur res Decurionum seu Curialum quantum res minorum Ecclesiae in hoc pari passu ambulant And that in favour of the Courtiers or Kings Servants to the end that the Commonwealth may be the better served by the Kings Servants being rich and that their Lands and real Estate are in that as much priviledged as the Lands and real Estate of Infants and the Church which was not a little and as to that have equal Priviledges And further assures us that in France the Kings Servants have a Priviledge quod non possunt conveniri coram Judice Ordinario loci ubi habent Domicilium they are not to be cited or prosecuted before the Ordinary Judge or Court where they inhabit which all other persons not priviledged are only to be sed debent conveniri in Curia ibi causae eorum tractari debent maxime pro negotiis Curialibus coram Magistro Officiorum aut magno Praeposito domus Principis but ought to be cited or compelled to appear in the Court and there the cause ought to be tryed especially if it concern any affairs of the Court before the Lord Steward or the Lord Chamberlain of the Kings Houshold in aliis vero causis non concernentibus eorum statum Curialem sed negotia privata seu particularia suarum rerum but in other causes not concerning the business of the Court but for any of the Kings Servants private or particular business there was at Paris in France in the Kings Palace a particular Chamber or Court called the Court of Requests wherein by the Kings Letters called Commitimus the causes of any of his Servants were to be decided and determined Which honours and respects due and given unto Kings and Princes Servants in so many Neighbour Nations may be enough to assure us that that which our English Laws and Customes have afforded those that serve our Princes ought not to have such outcries or complaints against them And that Sir Hugh Hamersley Knight Lord Mayor of London in the Reign of King James was not much if at all mistaken when he stood so much upon his priviledge of the Kings special Servant or Lieutenant in the City of London in the time or year of his Mayoralty as he resolved not to give place unto the King of Denmarks Ambassador who intended to come and dine with him but to insist upon the honour and priviledge of his Place in that particular which the Ambassador understanding by Sir John Finet then Master of the Ceremonies who was to attend him thither thought it better to forbear as he did that designed visit For a common and innate civility and respect which should be used amongst Servants and all others could never yet think it consonant to reason that a Butchers Apprentice or the Foreman of a trim Citizens Wives shop should take place of the Servant of any of our Princes of the Blood Nobility or other Persons of Honour much less of our Kings there being degrees and precedencies of Servants amongst all people any thing acquainted with good manners and civility proportioned and laid out according to the ranks or qualities of their Masters and in that also a consideration to be had of the nature of their Imployments taught us by the difference betwixt a Footman or Coachman and a Gentleman wherein our gracious Soveraign did but preserve the Majesty due unto his Soveraignty when if report be true he did in the later end of the year 1666. prohibit the Duke of Newcastles Footmen the wearing of black Velvet Caps which the Kings Footmen usually do whilst they attend his Caroch And if Histories the monuments of Time and former Ages were as they are not in that particular silent a common and frequent and almost every years experience will evidence how much the Honour of Princes are concerned in the respects or not respects of their Servants by the care and circumspection those resemblances of their Masters greatness do take and use to preserve and not diminish the least Iota or tittle of the Honour due unto those that sent them the strict and piercing inspections of Princes into the qualities greater or lesser of those that are sent and all and every the circumstances and ceremonies of their Receptions and Entertainments Punctilioes niceties and formalities insisted upon by Ambassadors complaints of the least omissions or preteritions exact and curious measures in the giving or not giving them respects to the full or height with their strivings for place or precedency even to bloody Combats betwixt the Ambassadors of emulating Princes as betwixt the French and
no Vagabonds Masterless men Boyes or Idle persons be suffered to harbour in her Court Wherfore the Servants attending therein should not now be so much in the ill opinion causeless contempt of the Mechanick and vulgar part of the people for those which are ex meliore luto better born and more civilly educated cannot certainly so lose their way to a gratefull acknowledgement of their Princes daily protection and needed favours as to villifie or slight his Servants by imitating the sordid examples of a less understanding part of the people or want their due respects if it shall be rightly considered that our Ancestors and a long succession of former ages were not so niggard or sparing of their well-deserved respects When our Kings and Princes and the wiser part of their people supposed to be in Parliament did attribute so much unto them and so very much trust and confide in them as they did from time to time put no small power into their hands and leave no small concernments of themselves and the Kingdom to their prudence fidelity and discretion When the Lord Chancellor or Lord Keeper of the Great Seal of England who administreth the Oathes usually taken by the Lord Privy Seal Lord Treasurer of England Lords of the Kings most Honourable Privy Councel Chancellor of the Exchequer Master of the Rolls Chancellor of the Dutchy of Lancaster Justices of the Courts of Kings Bench and Common Pleas Barons of the Exchequer Kings Attorney and Sollicitor General Serjeants at Law Masters of Requests and Chancery upon and before their admission into their several Places and Offices nominates and appoints the Custos Rotulorum and Justices of the Peace in every County of England Wales some few Franchises and Liberties excepted and by his largely extended Jurisdiction committed unto his trust doth by the Writs remedial of his Soveraign guide and superintend the Cisterns and Streams of our Laws those living waters which do chear and refresh our Vallies and make them to be as a watered Garden And with the two Lord Chief Justices Master of the Rolls the other Reverend Judges and the Masters of Chancery appointed to distribute the Kings Justice according to the laws and reasonable customs of the Kingdome have their Robes and Salaries allowed and are as Justice Croke acknowledged in his argument against the Ship-money as the Kings Councel at Law the chief Justice of the Court of Common Pleas being as is mentioned in a Manuscrip of Henry Earl of Arundel copyed out of a book of George Earl of Shrowsbury Lord Steward of the houshold unto King Henry the seventh and King Henry the eighth communicated unto me by my worthy friend Mr. Ralph Jackson one of his Majesties Servants in ordinary a great Member of the Kings house for whose favour counsel and assistance in the Law to be shewed to the houshold matters and servants he taketh an yearly Fee by the Bâ—tler of England of two Tuns of Wine at two Terms of the year which is allowed in the Court of houshold When the Justices of Peace in every City and County are or should be the under Wheels in that excellently curiously framed Watch of the English Government as the late blessed Martyr King Charles the first when he so sadly forwarned the pulling of it in pieces by a mistaken Parliament and the Rebellious consequences of it not unfitly called it are at their quarter Sessions under his pay and allowance when the Assize of the bread to be sold in England was in the fourth year of the Reign of King John being thirteen years before his granting of Magna Charta ordained by the King by his Edict or Proclamation to be strictly observed under the pain of standing upon the Pillory and the rates set and an Assise approved by the Baker of Jeoffry Fitz-Peter chief Justice of England the nas one of the Kings more especial Servants as to matters of justice resident and attendant in the Kings House or Palace and by the Baker of R. of Thurnam that Constitution and Assise being not at all contradicted by his Magna Charta or that of his Sons King Henry the 3 d. Which Assise of bread contained in a writing of the Marshalsea of the Kings house being by the consent of the whole Realm exemplified by the Letters Patents of King Henry the 3 d. in the 51 th year of his Raign was confirmed and said to be proved by the Kings Baker By an Act of Parliament made in the 9 th year of the Reign of that King if the King be out of the Realm the chief Justices one of which if not both were then residing and attending in the Kings Court were once in the year through every County with the Knights of the Shires to take Assises of Novel Disseisin and Mortdancester in which if there be any difficulty it was to be referred unto his Justices of the Bench there to be ended By an Act of Parliament made in the 6th year of the Reign of K. Edward the first Wine sold against the Assise was to be by the Mayor and Bayliffs of London presented before the Treasurer and Barons of the Exchequer who then resided in the Court or Palace of the King The Statute of Westminster the 2. made in the 13th year of the said Kings Reign mentioneth That the Kings Marshal is to appoint the Marshal of the Kings Bench and Exchequer the Criers and Virgers of that and the Court of Common Pleas which at this day is done by and under the Authority of the Earl Marshal of England who by his Certificate made by his Roll of a personal service in a Voyage Royal performed by those that held Lands or Offices in Capite and by Knight Service he discharged an Assessement of Esonage by Parliament superintendeth the cognisance and bearing of Armes of the Nobility and Gentry and the duty of the Heralds and Officers attending thereupon And with the Lord Great Chamberlain before the unhappy change of the Tenures in Capite and by Knight Service into Free and Common Socage introduce and bring unto the King such as were to do Homage unto him for their Baronies or Lands By an Act of Parliament made in the 14th year of the Reign of King Edward the third and by the Kings Authority the Sheriffs of every County in England and Wales who are for the most part under the King the only Executioners of Justice in the Kingdom are three out of six for every County presented by the Judges of every Circuit the morrow after the Feast of All-Souls in every year to the Lord Chancellor or Lord Keeper of the Great Seal of England Lord Privy Seal Lord Treasurer Lord Steward the later of which at the beginning and opening of Parliaments is by his Office to administer the Oathes of Allegiance and Supremacy to every Member of the House of Commons in Parliament the Master of the Horse Lord
three four or five of them are yearly to set the prices of Wines And upon refusal to sell after those rates the Mayor Recorder and two antient Aldermen of the City of London not being Vintners shall enter into their Houses and sell their Wines according to those rates By an Act of Parliament made in the 7th year of the Reign of King Edward the 6th no person having not Lands or Tenements or which cannot dispend above 100 Marks per annum or is not worth 1000 Marks in Goods or Chattels not being the Son of a Duke Marquess Earl Viscount or Baron shall keep in his house any greater quantities of French Wines then 10. Gallons By an Act of Parliament made in the same year the offenders in the Assise of Wood and Fuell if they be poor and not able to pay the Forfeiture may be by a Justice of Peace or any other of the Kings Officers put on the Pillory By an Act of Parliament made in the first year of the Reign of Queen Mary if the Justices of Peace do not put the Act of Parliament in execution touching the repair of the Causway betwixt Sherborn and Shaftsbury in the Counties of Dorset and Somerset the Lord Chancellor or Lord Keeper shall upon request grant Commissions to certain discreet persons to do it And by an Act of Parliament made in the 43th year of the Reign of Queen Elizabeth the mis-imployment of Lands Goods Chattels or Money given to Hospitals and Charitable uses are to be reformed by the Lord Chancellor or Lord Keeper of the Great Seal of England and the Chancellor of the Dutchy of Lancaster for the time being in their several Jurisdictions Which amongst many other may be some of the causes or reasons that the People of England and Commons in Parliament giving in former times as they ought to do those grand and more then ordinary respects and many more not here repeated unto the Great Officers of the Crown Royal Houshold and other the Servants of our Kings and Princes and lodging so many of their grand concernments in their care and trust did not trouble themselves or any of our Parliaments with any Petitions there being none to be found amongst the Records thereof against those antient rational just and legal Priviledges of the Kings Servants in Ordinary nor any Lord Steward Lord Chamberlain or other Officers of the Kings most Honourable House for allowing or maintaining it although there were some against Protections granted to some that were not the Kings Servants in Ordinary nor hath there been any Statute or Act of Parliament made to take away or so much as abridge those well deserved Priviledges which have in all ages and by so good warrant of right reason Laws of Nations and the Laws and reasonable Customes of this Kingdom appeared to be so much conducing to the Weal publique and the affairs and business of the Head or Soveraign For surely if there had been but the least suspicion of any Grievance in them meriting a remedy there would not have been such a silence of the peoples Petitioning or Complaints against it either by themselves or their vigilant and carefull Representatives in the Commons House in Parliament which heretofore seldom or never omitted the eager pursuit and Hue and Cry after any thing of Grievance which molested them And if there had been any such Petitions and Complaints in Parliament that Great and Honourable Court not giving any order or procuring any Act of Parliament against the Priviledges of the Kings Servants is and may be a convincing argument that such Complaints or pretended Grievances were causeless unfitting or not deserving the remedies required and will be no more an evidence or proof against what is here endeavoured to be asserted then the Petition of the Commons in Parliament in the 21th year of the Reign of King Edward the 3d. against the payment of 6 d. for the seal of every Original Writ in Chancery and 7 d. for the sealing of the Writs of the Courts of Kings Bench and Common Pleas which hath ever since been adjudged reasonable and fitting to be paid then the many Petitions against the antient legal and rational payment of Fines upon Original Writs in Chancery then the Petitions of Non-conforming Ministers then the many designed and desired Acts of Parliament not found to be reasonable or convenient and therefore laid by and miscarried in the Embrios or multitudes of other Petitions in our Parliaments or then the many late Petitions for an imaginary liberty of Conscience can or will be for what was desired and not thought fit at those or any other times to be granted Which antient Priviledge of the Kings Servants not to be Arrested without leave was not so limited to their Persons but that their Lands Estates and Goods participated also of that Privilege not to be molested by any Process or Suit of Law without Licence first obtained of the Lord Chamberlain of the Kings most honourable Houshold or unto such other great Officers therein to whose Jurisdiction it belonged CAP. IV. 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 FOr if we may as we ought believe antiquity and its many unquestionable authorities and our Records which as to matters of fact judgements pleas writs therein allowed Records of Parliament and the Grants of our Kings by their Letters Patents under the Great Seal of England being the Publique Faith of the Kingdome from and under which most of the peoples Real Estates and Priviledges have had their originals and establishments not the falsely called Publique Faith which afterwards proved to be Bankrupt and was until then the Medea or Witch of the late incomparably wicked Rebellion were alwayes so impartial and credited as not to have their truth so much as suspected That Priviledge was not only indulged and allowed to their Persons but to their Lands and Estate also as will plainly appear by the course and Custome of the Law in former ages and amongst many others not here enumerated was not understood to have been either unusual or illegal in that which was granted to Sir John Staunton Knight By King Edward the 3 d. in the 29th year of his Raign in these words Omnibus ad quos c. Salutem considerantes grata laudabilia obsequia tam nobis quam Isabellae Reginae Angliae Matris nostrae charissimae per dilectum fidelem nostrum Johannem-de Staunton impensa proinde Volentes personam ipsius Johannis suis condignis meritis exigentibus honorare ipsum Johannem Camerae nostrae militem familiarem quoad vixerit tam tempore quo extra curiam nostram absens quam tempore quo ibidem presens fuerit duximus retinendum Ac de gratia nostra speciali ipsum Johannem Terras Tenementa
being all three of them with fifteen dayes betwixt the Testes and Retorns first and successively to be retorned as now the manner of retorning them of course is usually before any Exigent can be awarded in order to an Utlary if the Defendant do not appear before unto the Action whether Civil or Criminal to prevent it which so often repeated process and warnings the Law doth so strictly enjoyn as in the Reigns of King Henry the 4th and King Henry the 6th Utlaries have been reversed for that the Exigent was awarded to Utlaw the Defendants upon the second Capiaâ— There cannot be any just or legal possibility of Utlawing of them although they be neither Great Officers of State nor of the Kings Privy Councel or of the Baronage who by reason of their eminencies high degrees and qualities are alwayes to be excepted from those ordinary kinds of Process For if any of the Kings Servants in ordinary should be wronged by any such false Retorns which must necessarily fore-run and open the doors of the Process of Exigent the Prologue or Ushers to an Utlawry they are and ought to be as justly entituled as any of the common people of England are to an Action of the Case against the Sheriff or any other who shall make or cause to be made any false Retorn quod nichil habet that he had nothing when as many of them have good or great or some Estates in Lands and Freehold in the County or place where the Action is laid or quod non est inventus was not to be found in his Balywick the later of which was in former ages used to be so ill resented as in the Reign of King Edward the 3d. an Action was brought against one for retorning upon a Writ quod non est inventus that he was not to be found whereby a Capias or Writ to arrest him was awarded against him And as much against the mind of the Law it would be and a very great distance from truth and reason that the King in the usual process and proceedings unto or towards an Utlary should cause an Original Writ to be directed unto the Sheriff of Middlesex who is by Law to execute no Writ in his Court or Palace to command one of the Kings Servants to pay a Debt demanded by the Plaintiff or if he did not to summon him to appear before his Justices of the Court of Common Pleas at Westminster to shew cause why he did not when his own Officers of his most Honourable Houshold upon leave obtained to prosecute the Debtor in the Court of Common Pleas were more properly to have made that summons should upon a nichil habet nec est inventus that he hath nothing or is not to be found retorned upon such an Original Writ by Clerks or Attorneys of course without the warrant or privity of the Sheriff in whose name it is retorned and to whom it is directed suffer a Capias in his Name and under his Seal to arrest or take his body to be issued out against his Yeoman of the Robes or his Physicians in ordinary or some other of his Servants in ordinary necessarily attending him not by courses as many other are by the indulgence of his Royal Majesty for the ease of his Servants permitting them to officiate by turns which within a few weeks or months brings them again into their duty and places of attendance but constantly every day and night in the year And should upon a non est inventus retorned of course as aforesaid when the time or day prefixed in that Writ of Capias is expired suffer in his Name and under his Seal another Writ of alias Capias to be made to the said Sheriff commanding him to arrest or take the said Yeoman of his Robes or any other of his Servants in ordinary whom he knows not to be absent from his service or affairs and upon a like feigned and false retorn of course upon that Writ when the time prefixed for to arrest him is expired cause or command a Writ of pluries Capias to be made or issued out against him and upon the like feigned and false retorn made upon the said Writ of pluries Capias when the time prefixed to arrest him is expired cause a Writ of Exigent to be issued out commanding the Sheriff in five several County Court dayes to call the said Yeoman of the Robes or such other his Servant in ordinary and if he appear to take him if not to retorn him Utlawed and should likewise at the same time issue out at the request of the party Plaintiff his Writ of Proclamation directed to the Sheriff of the County where his Family resided to be proclaimed at two several County Court dayes and a third time at the Parish Church door upon a Sunday immediately after Divine Service ended commanding the said Yeoman of the Robes or such other his Servant to appear and render himself to the Sheriff otherwise to be Utlawed when he knows he was at that instant of time and would be at other times prefixed busie and imployed in a near attendance upon his Person or that the Yeâ—man of his Robes or such other Servant in ordinary should be Utlawed upon an intendment or supposition in Law that after so many iterated contempts of the King and his Process or Writs being twelve in number that is to say a contempt upon not appearing upon the Original Writ three several contempts upon the Capias Alias and Pluries five other contempts in not appearing at the five Husting dayes if the Action had been laid in London or five County Court dayes if the Action were laid in any County and three several contempts in not appearing upon the Proclamation when he either knew not of the Process as it very often happens or if he did take notice of them refused to appear to the said Action because his business about the Kings own person and affairs would not permit him And should thereby subject him to all the mischiefs and inconveniences of an Utlawed person and that fierce Process of Utlary called a Capias Vtlegatum and command a Sheriff to enter into any Liberties as if he intended such Servants might be taken in his Bed-Chamber or his Court which no Law or Custom hath hitherto permitted or held fitting or reasonable and seize his Person Lands and Goods and Lease and Demise away his Lands to the Plaintiff untill he shall appear and answer the Action and the King for the Contempts in not appearing thereunto when as it was the Kings own necessary affairs and business that hindred him and he was at that instant of time busied in his duty and attendance upon his person and cannot be restored unto the benefit of the Laws and the Birth-right of a Subject untill he shall have reversed the Utlary by Plea or Error or as the usage of the Law was in the time of King Henry the 4th and long after that the
Castri praedicti in the Kings Service in fortifying the Castle of Oye in Picardy under the command of John Lardner Captain of the Castle aforesaid was Utlawed by Process out of the Court of Common Pleas at the Suit of John Paxman in an Action of Debt for Forty pounds when as die promulgationis Vtlagarie diu antea postea fuit in obsequio Domini Regis at the time of his being Utlawed and long before and after he was in the Kings Service as aforesaid and brought his Writ of Error in the Kings Bench to reverse it prayed a Writ to the Captain aforesaid to certifie whether he was then in obsequio Regis in the Kings Service per quod mandatum fuit praedicto Capitaneo whereupon it was commanded to the aforesaid Captain to certifie quo die anno what year and day the said Roger was imployed as aforesaid per quantum tempus ibidem remansit in obsequio Regis in Comitiva sua continue quo die anno recessit and how long he there served without intermission and what day and year he departed whereupon he giving Bayl by four Sureties to appear ad praefatum terminum sic de die in diem quousque c. at the term or time appointed and so from day to day untill he should be discharged And the Captain certifying the day when the said Roger came into the Kings Service and when he departed the said Roger prayed a Writ of Scire facias to warn or summon the said John Paxman to appear and hear the Error alledged and the Sheriff not having executed the first Scire facias and a second being awarded executed and retorned and the said John Paxman not appearing the said Roger assigned for Error that he was in obsequio Regis in the Kings Service as aforesaid and prayed that the Utlary might be reversed for the Error aforesaid quod Curia ad examinationem recordi processus ex officio procedat and that the Court would as they ought proceed to examine the Record and Process aforesaid which being considered and examined the Court ob Errorem illum alios in recordo processu compertos for that and other Errors appearing in the Record and Process aforesaid did reverse and annull the said Utlary And in the 9th year of the Reign of the said King a man being Utlawed for Felony which is of a worse nature and consequence then in an Action of Debt did reverse that Utlary upon a Certificate that he was in the Kings Service at Burdeaux in France at the time of the Utlary pronounced and in the second year of the Reign of King Edward the 4th a man taken upon a Capias Vtlagatum for Felony pleaded that at the time of the Utlary pronounced he was in the Kings Service at Calais under the Governour or Captain thereof which being certified was allowed when in all cases of Vtlary the Judges of Courts and the Kings Serjeants or Councel at Law were alwayes not a little watchfull to preserve all the Kings Rights and advantages For if upon a command of the King by his Letters Patents to do any of his commands or affairs which kind of Authority certainly the Kings Servants in ordinary neither need or ever demanded or the party impleaded alleaging that he served at Calais under such a Captain shall be sufficient Pleas to avoid Vtlaries the one as was adjudged and holden for Law in the 11th year of the Reign of King Henry the 7th in the Kings Bench being to be tryed by the Certificate of the Captain and the other by the Kings Letters Patents And the party Vtlawed shall have a Writ of Scire facias without shewing the Kings Letters Patents unless the Plaintiff do traverse it as well as in the other Case he shall be discharged of the Vtlary by the Certificate of the Captain the Certificate certainly in the Case of an Houshold Servant of the Kings of the Lord Chamberlain or other Great Officer of the Houshold to whom it appertaineth may deserve to be as available And yet in all the aforesaid Cases of Protection or Priviledge they that were abiding within the Realm might ever since the making of the Statute in the 20th year of the Reign of King Henry the third and of the Statute made in the 13th year of the Reign of King Edward the first and such as departed the Realm by the Kings license by an Act of Parliament or Statute made in the 7th year of the Reign of King Richard the second make their Attorneys to answer for them in any Actions to be brought against them And if in case of less consequence or upon a smaller ground of Law or Reason the Law hath so much favoured a privare person as to permit him to reverse an Vtlary because he was itae languidus tempore promulgationis Vtlagarie so sick at the time of the pronouncing or adjudging him to be Vtlawed that he could not propter periculum mortis appear without danger of death when as he might have made or sent his Attorney as it was adjudged and admitted in the 4th year of the Reign of King Henry the 5th the Kings Servants should in matters so very much concerning his Person and the Weal publick not be debarred of their plea of a greater impediment by their necessary attendance upon the person of their Soveraign All which may certainly give us to understand and perswade every one that wilfully gives not way to his fancies and misapprehensions to over-run and trample upon his reason that the Priviledge of the Kings Servants in ordinary had its beginning and continuance as well from the necessity of their attendance upon his person and affairs as from the respect and honour which was and should be alwayes due unto the King their Master And that therefore if the Laws and reasonable Customs of England do as they have ever done and by a right interpretation of them are alwayes to be understood will not permit that the Kings Servants in ordinary may be arrested in any Civil Action without the leave or license of the King or the great Officers of his most honourable Houshold under whose jurisdiction they do officiate first obtained nor suffer any Member of the House of Commons in Parliament in the time of Parliament whilst he is in the service of their King and Country to be outlawed because he cannot be Utlawed without Process of three Capiasses of Writs to arrest an Exigent Proclamation first awarded returned against him such Writs or Process could not be awarded during the against him continuance or adjournment of Parliament It may justly rationally and legally be concluded that they cannot be Utlawed Until there can be an Utlary without a Capias or Process of Arrest a Capias without leave or licence first obtained of the great Officer of the Kings most honourable Houshold to whom it appertaineth and
Tradesmen or Servants extraordinary And therefore the King having fewer Servants or Officers in ordinary than the Kings of France his Neighbours used to have who besides their numerous Guard have four Kings at Armes eight Masters of Request deux Maistres d'Hostel two Masters of the Houshold thirteen Pages of Honour and two hundred Gentlemen Pensioners c. and a far lesser number than many of his Royal Progenitors should not now be thought to have too many because he hath some extraordinary And although it is not hard or difficult to believe but that heretofore the Common people of England were sometimes troubled at the unruliness and misdoings of the Purveyors which were afterwards well prevented in the Reign of Q. Elizabeth by a Composition made with the several Counties what proportions of Provisions the City of London and every County should by equal charge and collection pay and deliver towards the support and maintenance of the Provision for the Kings Houshold yet notwithstanding they did in their duty and reverence unto the King and respect unto his Servants not think it reasonable or comely to arrest or trouble his Purveyors or Servants by any Arrest or Actions without asking his leave or licence But where they had any grievance by his Officers and Servants and the Laws in force would have given them their Actions and remedies were so unwilling to make use of those ordinary helps which the Laws were at all times ready to afford them as they would rather trouble the Commons in Parliament to petition in their behalf for a redress therein who could not but understand that where an Act of Parliament gives remedies either against the Kings Servants Barons Bishops or others it is to be more aut cursu solito in such wayes and manner if no other in particular be prescribed as the Laws and reasonable Customs of England will allow and not otherwise A prospect whereof and of our Kings of Englands care to protect their Servants in their Liberties and Priviledges as well as to do Justice unto the rest of their Subjects complaining of them in Parliament needs not be far to seek to those that will but retrospect and enquire into the ages past CHAP. XII 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 without a remedy first petitioned for in Parliament WHen in the 13th year of the Reign of King Edward the third the Commons petitioning the King in Parliament which they needed not to have done when the Law would have given them remedy without the trouble of petitioning the King in Parliament and they might by the Statute made in the 28th year of King Edward the first have pursued them as Felons That all Purveyors as well with Commission as without might be arrested if they make not present pay All that was answered unto it as if there were altogether an unwillingness to expose them to Arrests and with which the Commons seemed to be satisfied was That the Commissioners of Sir William Healingford and all other Commissioners for Purveyance for the King be utterly void In the 20th year of that Kings Reign the Commons in Parliament petitioning That payment be made for the last taking of Victuals The Kings answer was That order should be taken therein In the same year the Commons in Parliament petitioning the King That Purveyors not taking the Constables with them according to the Statutes of Westminster might be taken as Thieves and that the Judges of Assise or Justices of the Peace might enquire of the same The King only answered That the Statutes made should be observed In the 21th year of the said Kings Reign the Commons in Parliament not thinking it fitting that the Purveyors who did them wrong should be instantly laid hold of or troubled with Suits or Actions or the King and Queens Horses impounded which would be a less affront to Majesty than the arresting of his Servants did only petition That whereas the King and Queens Horses being carried from place to place in some Counties had Purveyance of Hay and Oats c. made for them That the said Horses might abide in some certain place of the Country and provision made for them there in convenient times of the year by agreement with the Owners of those Goods and that inquiry might be made of the ill behaviour of those Takers before that time and that by Commissions the Plaintiff or party grieved in that kind as well of wrongs heretofore done or hereafter to be done might have redress therein To which the King answered That he was well pleased that the Ordinances already made should be kept and Purveyance made for his best profit and ease of his people And in the same year the Commons having complained That whereas the King and his Councell had assented that Men and Horses of the Kings Houshold should not be Harbinged but by Bill of the Marshal of the House delivered to the Constable who should cause them to have good sustenance for themselves and their Horses as should be meet and before their departures should pay the parties of whom the Victuals were taken and if they did not their Horses should be arrested and that contrary thereunto they departed without payment when it seems they used so much civility to the Horses as not to arrest them did only pray that in every Bill mention be made of the number of Horses that no more but one Garson be allowed and that payment according to the Statute might be made from day to day Whereunto the King answered That that Article should be kept in all points according to the form of the Statute In the 28th year of the Reign of that King by an Act of Parliament not printed when it was enacted That no Purveyor arrested for any misdemeanor should have any Privy Seal to cause such as arrested him to come before the Councell to answer to the King when it seems the King and his Councell were unwilling to put the Kings Servants under the command of every mans pretended Action but the party grieved might have his remedy by the Common Law the utmost extent of that Statute did not include any other of the Kings Servants then his Purveyors And did so little disrelish Protections and the just grounds and reason thereof as in the 45th year of the Reign of King Edward the third the Commons in Parliament petitioned the King That such as remained upon the Sea-Coasts by the Kings commandment might have protection with the Clausa volumus which the King supposing to be too general or at that time unnecessary answered That the same would be to the apparent loss of the Commons In the 46th year of the Reign of that King the Commons petitioning the King in Parliament That whereas it was
sic detentus est in servitio suo videndum est utrum quis teneatur de necessitatâ— ad tale servitâ—um vel si fuerit cum aliquo qui tenetur sicut Miles vel Serviens de familia omnibus istis debet subveniri An Essoin is warranted many wayes by the Kings Writ where the Tenant or Defendant needs not to swear when the King witnesseth by his Letters that he is deteined in his service wherein it is to be observed whether he be necessitated to such a service or if he be with another who as a Knight is obliged thereunto or as a Servant in the Kings Family in all which he is to be holpen and such an Essoin allowed In causa dotis ultimae praesentationis propter necessitatem lapsu temporis inductam warrantia vero de servitio Domini Regis non est concedenda in omnibus nec sine rationabili causa Et cum aliquando de voluntate Domini Regis concedatur non erit omnino per justic quassanda sed voluntas Regis expressa inde erat expectanda In a case of doner and last presentation the warranty of the King that the Tenant is in his service is not to be granted in regard of lapse of time which may cause a prejudice to the Demandant nor is not to be granted in all cases nor without a reasonable cause And when it is sometimes granted at the pleasure and will of the King it is not at all to be quashed or rejected but the Kings express will and pleasure is to be expected Where a man is Essoined in servitio Domini Regis ultra Mare vel citra differri poterit loquela quamdiu Essoniatus fuerit in servitio Domini Regis dum tamen habet ad manum quolibet die warrantum suum breve Domini Regis in regard that he is in the service of the King either beyond or on this side of the Sea the suit is to be deferred as long as he shall be in the service of the King so as he doe every day produce the Kings Writ to testifie it after a defalt entred capiatur dies amoris per officium Judicis vel ex voluntvtate Regis vel ex necessitate aliqua the Judge may in favour or discretion grant another day or at the Kings command or upon some other necessity Where the King is vouched to warranty it is cum quandum curialitate in a certain observance of duty or respect unto him to be only entred because he may not be summoned sine Rege respondere non potest that he cannot answer without the King Ralph de Hengham a Chief Justice of England under King Edward the first about the 16th year of his Reign saith that Essonium de servitio Domini Regis semper admittitur locum tenet ad alium diem dummodo porrigatur breve Domini Regis de warranto Essonii praedicti an Essoin of the service of the King is alwayes to be admitted and gives a respite to another day so as a Writ of the Kings be brought to warrant the Essoin Quando Dominus Rex est in exercitu Reo secum existente when the King is in the Army and the Tenant or Defendant with him and it be made to appear in the Chancery there shall be the like warranty but if the King be not in the Army himself but sends one into it in his service and it is not found in the Rolls of Chancery a Writ of Protection shall be granted Si aliquis Miles Compatriota ipsius sacramento testificetur ipsum esse tali die in servitio Domini Regis if any Knight or Souldier shall upon his Oath testifie that he was such a day in the Kings service After a Writ of View and a Petit Cape aliis diebus praeteritis futuris absentia Rei salvari potest per Essonium Warrantum de servitio Regis and other dayes past and to come the absence of the Tenant may be saved by an Essoin and Warrant of the Kings service at which time also if default be made de plano constat possit prorogari hujusmodi loquela de uno termino in alium it cannot be denyed but the Action may be prorogued from one Term to another although the death of the Demandant loss of rents and profits may happen in the mean time and saith Hengham frequenter fit talis dilatio ex lege principis benificio frequently such delays may happen by the Law and the Princes favour In Trinity Term in the 17th year of the Reign of King Edward the third a common Essoin was cast for the Defendant and also an Essoin of the service of the King In Hillary Term in the same year a Protection of a later date than the quarto die post was allowed in a Plea of land eo quod in servitio Regis In Easter Term in the 18th year of his Reign in a Writ of disceit brought by Gilbert Colley Plaintiff against William de Milborne Chivaler for that after a Venire facias sued in a Writ of Formedon a Protection was brought by the Tenant which did put the Action without day supposing by the Protection that he was in the Kings service beyond the Seas where before and after he was continually in England in such a County and place in despite of the King against the Law and Custom of the Realm disceit of the Kings Court and disseisin and damage of the Plaintiff or Demandant the Defendant pleaded that as he was going beyond the Seas he fell sick at such a place and could neither go nor ride before which time the Protection was allowed whereupon Issue was joyned In Trinity Term in the 19th year of the Reign of King Edward the third the Avowant being Essoined de service le Roy and at the day not bringing his Warrant the Plaintiff prayed damages and the 20 s. allowed by the Statute which the Court granted but not the damages In Trinity Term in the 21th year of the Reign of King Edward the third a Writ of Error being brought in the Kings Bench by an Infant to reverse a fine levyed in the Court of Common Pleas after Errors assigned and a Scire facias retorned the Tenant of the Cognisee brought a Protection whereupon the Judges to avoid the mischief which might happen to the Infant if he should not be inspected during his Nonage and understanding the Kings will that he had taken the Tenant into his Protection did examine and inspect the Infant and respited the reversal by giving a new day for him that had brought the Protection to alledge what he could against the reversal In Mich. Term in the same year an Essoin de Service le Roy was challenged for that the Essoiner was under age but it was not allowed and in an Action of debt brought against the Countess of Kent as an Executrix after Issue joyned and
signified by the Emblems or Figures of the Lyons guarding or supporting of Solomons Throne and astonishing Royalty Which most laudable custom was not only observed in the time of the Western and Eastern Emperors but of the Franks Goths Longobards and other Northern Nations who imitated them And from such honourable services and employments about Emperors Kings and Princes likewise were derived Count Palatines whom they found a kind of necessity to institute when they understood their other Subjects to be troubled that none but Romans had those honours and dignities conferred upon them and their Courts and Palaces appeared to be solitary and unfrequented and therefore opened the doors of honour to their Subjects of other Nations and Provinces as appears by the after usage of the Roman and Grecian Emperors and made and ordained Comites sacri Falatii Count Palatines which the Title of Count Palatine given by Charlemaine to Antholinus will further evidence and the Count Palatines of the Empire of Germany as Pasquier that learned Advocate of France hath remarked had their names from their Offices Superintendencies and Places which they antiently held au tour des Empereurs de Rome de la Suitte des Empereurs and in their service and attendance as Crmites Palatii were in Comitativa Principis in the Retinue of the Emperors which in the elder times were so reverenced and respected as it was not unfrequently in many Laws and good Authors stiled Sacra as meriting a veneration due unto Gods Vicegerents Et ipsa Principis Aula residentia and the Court and Palace of the Prince was saith Marquardus Freherus sometimes known by the name of Comitatus sacer comitatus a place of reverence more especially appropriate to honor and men deserving it and the French Kings Court is by the modern French at this day tearmed Comitatus and in the time of Charlemaine and his Son Hludowick Kings of France the Earls were tanquam Judices Judges in their several Earldomes or Provinces qui post Regem populum regere debent who next under the King as the Dukes did in their several Dukedoms were to govern the people necesse est ut tales instituantur qui sine periculo ejus qui â—os constituit quos sub se babent cum justitia aequitate gubernare officium adimplere procurent there being a necessity that such should be appointed who without danger of those who constituted or deputed them may have under them such as may govern them with Justice and Equity and do what belongeth to them And our Earls and English Nobility were of the like Character Esteem and Subserviency to our Kings and Princes when in the time of Bertulphus King of the Mercians who Reigned in England in the year of our Lord 851. such of them as had not as Sir Henry Spelman saith constant Offices or places in the Kings Court tenebantur ex more obsequii vinculo antiquissimo as also were the other Baronage in tribus maximis festivitatibuus Christi scilicet natalitiis Sancti Paschatis Pentecostes Regi Annuatim adesse cum ad curiam personam ipsius exornandum tum ad consulendum de negotiis regni statuendum que prout fuerat necessarium were by most antient custome and tye of obedience at three of the greatest Feasts in every year that is to say at Christmass Easter and Whitsontide to attend at the Kings Court as well for the honour of his Person and Court as to advise and councel him as there should be occasion in the weighty affairs of the Kingdom which saith that great light and restorer of our English Antiquities gave at the first an original and beginning to our great Councels afterwards and now called Parliaments and Johannes Saresburiensis stiled all the great Officers of the English Court Comites Palatini Earls or Lords of the Palace Royal at least such as being Earls were also honoured with the greater Court Dignities and had relation to the Dignities and Privileges of our English Nobility Such service and attendance of the Nobility upon the person and affairs of their Soveraign being not unusual in the dayes of Jehoiakim King of Judah when Michaiah the son of Gemariah found all the Princes sitting in the Kings house in the Scribes chamber and standing besides the King when the Roll of Baruch was read When the great King Ahasuerus made a Feast unto all his Princes and his servants the power of Persia and Media the Nobles and Princes of the Provinces being before him and he shewed the honour of his Excellent Majesty he advised concerning the misbehaviour of his Queen Vaschi with the wise men which knew the times for so was the Kings manner towards all that knew law and judgement and with the seven Princes of Persia and Media which saw the Kings face and sate the first in the Kingdome And those Officiary Dignities Honors and Privileges of the English Nobility were so consonant to the Law of Nations and the usage and customs of the Empire as in Anglia tam ante quam post Conquestore Wilhelmum Normannum Comites seu Graviones Justitiarii hisque cum ad privata quam publica judicia suis fuere in comitatibus and not only before but for sometimes after the Norman Invasion did under their Kings preside and govern the Justice of that County or Territory of which they were Earls and had allowed unto them the Tertium denarium Third penny or part of the fines and amerciaments and the customs and some other casual profits belonging to the Crown in their several Counties as our Selden a most universally learned and judious Lawyer hath in the Earldoms of Chester and Oxford observed and for some of the Ages succeeding the Norman atchievment have been Chief Justices of Englund as in the Reign of King Stephen Awbrey de Vere Earl of Guisnes Father of Awbrey de Vere the first Earl of Oxford Robert de Bellomont or Beaumont Earl of Leicester in the Reign of King Henry the 2d and Geoffrey Fitz-Peter Earl of Essex in the Reigns of King Richard the first and King John our Bracton acknowledging that our Earls and Nobility were upon occasions to attend upon the person of their Sovereign Prince calleth our Earls Comites a Comitando sive a Socieâ—ate from or by reason of their accompanying or attendance upon the person of the Prince saith dici possunt Consules Reges enim tales sibi associant ad consulendum and our Nation was not without its Local Count Palatines who had greater authorities and profits in their Counties and Jurisdictions than other Earls as those of Chester Lancaster Pembroke and the Palatineships belonging to the Bishopicks of Durham and Ely And Hoveden our old Annals and Selden that Monarch of Letters do tell us that King John die Coronationis suae accinxit Willielmuw Marescallum gladio Comitatus de Striguil
Galfridum filium Petri gladio Comitatus Essex qui licet antea vocati essent Comites administrationem suarum Comitatuum habuissent tamen non erant accincti gladio Comitatus ipsa illa die servierunt ad mensam Regis accincti gladiis did upon the day of his Coronation gird William Marshal with the Sword of the Earldome of Striguil or Pembroke and Jeffery Fitz-Peter with the Sword of the Earldome of Essex who although they were before called Earls and had the government of their Earldomes yet until then were not invested or girt with the Sword of their Earldomes and the same day they waited upon the King as he sate at meat with their Swords girt about them and the service of our Earls and Nobility were held to be so necessary about their Soveraign in the Reign of King Edward the second as John de Warrenna Earl of Surrey had in the 14th year of that King a dispensation not to appear before the Justices Itinerant before whom in certain of his affairs he had a concernment in these words viz. Edwardus dei gratia Rex Angliae c. Justitiariis notris Itineratur in Com. Norff. Quia dilectum fidelem nostrum Johannem de Warrenna Comitem Surrey quibusdam de causiis juxta latus nostrum retinemus hiis diebus per quod coram vobis in Itinere vestro in Com. praedicto personaliter comparere non potest ad loquelas ipsum in eodem Itinere tangentes prosequendi defendendi nos ex causa praedicta Indempnitati praefati Comitis provideri cupientes in hac parte vobis mandamus quod omnes praedictas loquelas de die in diem coram vobis continuetis usque ad Octabas Paschae prox futur Ita quod extunc citra finem Itineris vestri praedicti loquelae illae andiantur terminantur prout de jure secundum legem consuetudines regni nostri fuerit faciend Edward by the grace of God King of England c. to his Justices about to go the Circuit in our County of Norfolk sendeth greeting In regard that for certain causes we have commanded the attendance of John of Warren Earl of Surrey upon our person so as he cannoâ— personally appear before you in your Circuit to prosecute and defend certain actions or matters wherein he is concerned we desiring to indempnifie the said Earl therein for the cause aforesaid do command you that you do from day to day adjorn the said Pleas and Actions until eight dayes after Easter next so as you may according to the laws and custome of our Kingdome before the end of your said Circuit hear and determine the said matters or actions In which Writ the said Earl being descended from VVilliam de VVarrenna who marryed a daughter of King VVilliam Rufus was not stiled the Kings Cousin as all the Earls of England have for some ages past been honored either by the stile of Chancery or the Secretaries of State in a Curiality with which the more antient and less Frenchified times were unacquainted for notwithstanding an opinion fathered upon our learned Selden that in regard the antient Earls of England being the Cousins or of the consanguinity or affinity of William the Conqueror or many of the succeeding Kings those Earls that were afterwards created did enjoy that honourable Title of the Kings Cousin it will by our Records and such Memorials as time hath left us be evidenced and clearly proved that all the Earls which William the Conqueror and his Successors have created were not of their Kindred or Alliance and those that were of the consanguinity of our Kings and Princes as Awbrey de Vere the first Earl of Oxford whose Father Awbrey de Vere marryed the Sister by the half blood of William the Conquerour was neither in the grants of the Earldome of Oxford and office of Great Chamberlain of England by Maud the Empress or King Henry the second her Son stiled their Cousin nor William de Albiney formerly Earl of Sussex who marryed Adeliza Widdow of King Henry the first Daughter of Godfrey Duke of Lorrain in the grant of the Earldome Castle and Honour of Arundel by King Henry the second was termed that Kings Cousin neither in the recital in other grants wherein the great Earls of Leicester and Chester are mentioned is there any such intimation for in the first year of the Reign of King John William Marshall Earl of Pembroke William Earl of Salsbury and Ranulph Earl of Chester and Lincoln in the second year of King Henry the third had it not and in the Summons of Parliament Diem clausit extremum and other grants or writs of divers of the succeeding Kings in the former ages until about the Reign of King Edward the fourth where mention was made of some of those and other great Earls of this Kingdom there were none of those honorary Titles and it is not at this day in the ordinary Writs and Process where they are named either as Plaintiffs or Defendants and in France where those graces are in the Royal Letters and Missives frequently allowed to the greater sort of the Nobility howsoever the Queen Mother and Regent of France was about the year 1625. pleased in a Letter to the late George Duke of Buckingham to give him the honour to be called her Cousin very often omitted And those honours of attending their Kings and being near his person or being imployed in his Royal commands were so desirable by as many as could by their virtue antiently the Seminary and cause of all honour obtain it as they thought the service of their Prince not happiness enough unless their Heirs and after Generations as well as themselves might partake of the honour to do service unto him and therefore could be well content to have some of their Lands which some of our Kings of England gave them which they hoped to hold unaliened to them and their Heirs in Fee or in Tayl astrictae obliged and tyed also as their persons to those no inglorious services as the Earls of Oxford holding the Castle of Hedingham in the County of Essex and the Manor of Castle Campes in the Counties of Cambridge and Essex to them and their Heirs in Tayl by the Tenor and Service of being great Chamberlain of England and the Manors of Fingrith in the County of Essex and Hormead or Hornemead in the County of Hertford descended unto them by the Marriage of a Daughter and Heir of the Lord Sanford by the Service and Tenure of being Chamberlain to the Queens of England die Coronationis suae upon the dayes of their Coronation that of great Chamberlain of England being an Office distinct and separate from that of Chamberlain of the Kings House which was as appeareth by many Charters of our antient Kings and their Chamberlains Subscriptions thereunto as witnesses long before the grant of great Chamberlain of England and as then are now only
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
are not to stand in the way or obstruct the Rights or those to whom they were indulged or granted CHAP. XIX That those many other Immunities and Priviledgeâ— have neither been abolished or so much as murmured at by those that have yielded an assent and obedience thereunto although they have at some times and upon some occasions received some loss damage or inconveniences thereby FOr the Law which hath allowed them to be good and warrantable could not but apprehend that a possibility of loss and prejudice would come to others by them and our Kings and Princes did by their Laws bear a greater respect and took a greater care of the whole than of the less or of any parts of the greater and had a greater regard to the general and more universal than particulars where the latter as less considerable were to give way to the former as of the greater concernment and tendency to the weal of the Publick when as the Sun and the Moon by their happy influences in doing good to the universality of Mankind do sometimes we know occasion much evil and damage unto many men in particular one mans gain is anothers loss the benefit comfort and joy of one hapneth to be the grief and disappointment of another and the aggrandizing of some the lessening of others Lex ad particularia se non resert sed ad generalia The Law doth not intend to provide for particulars but generals Legis ratio non fit raro accidentibus Laws are not usually made for things which do seldom happen Et citius tolerare volunt privatum damnum quam publicum malum Will sooner tolerate a private and particular damage than a publick evil or grievance for the Priviledges granted to the City of London to be Toll-free in all Markets Fairs and Places of the Kingdom which makes them able to under-sell all others and to be Masters as now they are of all the Commerce and Trade of the Nation Their custom That no Attaint shall be brought of a Jury impannelled in London to enforce a Gentleman or Foreigner not Free of the City Arrested to give Bail or Surety by Freemen or Citizens That every Citizen or Freeman may devise Lands or Tenements in Mortmain or that any Man to whom Money is owing may Arrest any Man for Money upon a Bond or Bill before the Money be due or payable or Attach Moneys in another Mans hand within the City of one which oweth Money to the Debtor The forbidding Foreigners and Men not Free of the City to Work or keep Shop within the City or Liberties thereof That if any Freeman sufficient and able shall be summoned by a Serjeant of the Sheriff of the City to appear at Guildhall to answer a Plaint and make Default he shall be Amerced the grand Distress presently awarded and his Doors fastned and Sealed untill he shall come to answer and if it be testified that he hath broken the Sequestration shall be Arrested by his Body or if otherwise he is like to escape away or is not sufficient a Writ of Capias shall be awarded to take his Body or a Writ to Arrest and take his Goods That in a Writ of Dower the Tenant shall be three times summoned That a Citizens Wife can have no Estate in Lands devised unto her further than during her life The ancient and just Priviledges of the Clergy not to be tried before a Secular Judge for any criminal Matter nor be compelled to abjure if having committed Felony he flie to a Church and albeit he hath had his Clergy for Felony may have it again and shall not be Burned in the Hand nor have his Tythes or Horse distrain'd as he traveleth in any Civil action or matter whilst he hath other Goods not to have his Goods and Chattels to be distrained in his Fee or Estate of the Church for purveyance when it was required and is to be free from bearing any temporul Office and their Bodies not to be arrested or imprisoned upon a Statute Mechant although an Act of Parliament doth without exception of any Persons severely enjoyn it That Priviledge allowed to Knights by the ancient Laws of England which saith our Selden was that their Equitatura or Horse and Armor were priviledged from Executions of Fieri or Levari facias although they were to Levy the Kings Debts which the Law did so geratly favor as it is to be preferred before all other Mens and if he should dishonourably absent himself from the Kings Service when his aid was required and that all that he had was subject to an Execution yet one Horse was to be left him Propter dignitatem militiae in regard of the honour of Knighthood and such other of his Horses as were for his ordinary use were to be spared The exemption of divers Abbeys and Monasteries from the Jurisdictions and Visitations of their Diocesan or Metropolitan Bishops The Priviledges and Jurisdictions granted by King Edward the third in the 27th Year of his Reign to York Lincoln Norwich Canterbury Westminster and divers other Staple Towns to be free from purveyance and Cart-taking giving them liberty to hold Pleas by the Law-Merchant and not by the common Law of the Land That they should not implead or be impleaded before the Justices of the said Places in plea of Deâ—â— Covenant or Trespass concerning the Staple And that the Houses shall be let for reasonable Rents to be imposed by the Mayor of the Staple The Modus decimandi abatement or manner of Tythes being at the first a temporary favour or kindness continued and crept into a Custom and thence into a Law and Priviledge which hath carried away or choked a great part of the Clergies Tythes and Maintenance The abundance of Rights and Priviledges of Common of vicinage or appendant or of some stinted or not limited sorts in the Ground and Soyl of the Propritors throughout the Kingdom of Common of Estovers in some of their Woods the throwing of many Meadows open to have Common in some Woods for their Cattel after seven years growth and to Common upon the first day of every August the Custom of the Town of Wycombe in the County of Buckingham that any under the age of thirteen years might give or devise Lands and that no Tythes should be paid for any Wood in the Wild of Kent Together with the many Freedoms Franchises and Priviledges to be quit ab omni secta Shirarum Hundredorum all Suit Scot and Lot c. and Service to Sheriffs Courts and Hundreds which with very many others not here recited do necessarily appear to be as prejudicial to some part of the People who in the Weal-publick or some of their Posterities afterwards partaking or enjoying of the like Priviledges do or may find themselves abundantly recompenced may be as prejudicial to some as they are beneficial to many who may at the
the Reign of King Henry the Second when Thomas Becket the stubborn Archbishop of Canterbury having Judgement ready to be given against him by the Lords Spiritual and Temporal in that Parliament or Great Council upon the Complaint of John Marshal for Injustice done unto him by the said Archbishop and his Defence heard Rex exigit Judicium The King demanded Judgement to be given against him But the Earls Barons and Bishops delaying of it and contending who as it hath been said in other cases should hang the Bell about the Cats Neck and begin the Vote or Sentence Rex hac audita de pronunciando Controversia motus est the King hearing the Controversie who should begin the Vote was displeased whereupon Henry de Blois Bishop of Winchester impositus dâ—cere tandem invitus pronunciavit being put to it to give his Vote did at length begin it In the second year of the Reign of King John that great Suit touching a Barony which William of Mowbray claimed against William of Stutuile which had depended from the Reign of King Henry the Second is said to have bin ended Consilio Regni voluntate Regis by the Kings Will and Advice of Parliament In the One and twentieth year of the Reign of King Henry the Third a Complaint being made to the King that Jordan Coventry one of the Sheriffs of London having by the Order of the Mayor and Aldermen of London arrested and taken divers persons that were offenders in Annoying the River of Thames with Kiddels upon Complaint made to the King he sent for the Mayor and Citizens and upon hearing of the Matter confirmed the Cities Jurisdiction convicted the Complainants Amerced every of them at Ten Pounds and adjudged the Amerciaments to the City In the Thirty eighth year of that Kings Reign upon a Quarrel betwixt some young men of that City and some of the Kings Servants the Londoners being despitefully used by them fell upon them and did beat them shrewdly who thereupon complaining to the King he Fined the Citizens to pay One thousand Marks In the one and fortieth year of his Reign being in the year 1256. he sate in the Court of Exchequer in Westminster Hall where he did make Orders for the Appearance of the Sheriffs and bringing in of their Accompts and Fined the Mayor Aldermen and Sheriffs of London for Oppression and Wrongs done by them who submitted themselves in that place to the King And if so and the Records and Memorials as well of the Court of Exchequer as of that City do speak it there can be nothing within the pale or verge of Reason or the fancy or imagination of any whose Intellectuals are not in a Lethargy to make it either possible or rational that the King himself had not then and there the Preheminence or Courtesie afforded him to give or pronounce the Order or Judgments or that the Soveraignty as the Law in more inferior matters betwixt party and party amongst private persons doth sometimes adjudge it should be at that instant or part of time in abeiance or suspence and operate nothing or that the Barons of the Exchequer could at that Time by intendment of Law be supposed to represent the King when he was personally present it being by the Law of Nations a constant usage and custom settled and approved in the most parts of Christendom that the Governors of Cities and Forts do at the coming and personal Presence of their Soveraign deliver unto him upon their knees the Keys thereof and in all obedienee and humility receive them and their Authority again upon their departure and re-delivery And it is not yet gone out of the memory of man that Sir William Cokain Knight Lord Mayor of London when King James in a Great Solemnity came to St. Pauls Church did at Temple-Bar deliver upon his knees unto him the Keyes and Sword of the City and carried a Mace before him Or that it would not be Contrarium in objecto a Parcel of Contradictions that Esse at one and the same instant of Time can be a non esse idem non idem ibi non ibi the King should be understood not to be there when he was there and to be there onely virtually and in power and not present when he was there in his Person as well as in his Power Or that He should sit and be there onely as an Auditor or Spectator Or as Sir Edward Coke said concerning King James his personally sitting in the Court of Star-Chamber to consult but not in Judicio in Judgement when the Law and the Reason of the Law and the Fact and the Records and Memorials thereof do give so full an evidence against that Pseudo Doctrine and ill-grounded Opinion which the Learned Lawyers and Judges in the Reign of King Henry the Third did so little believe As Bracton discoursing where Actions Criminal by the Laws and Customs as well before his Time as in the Reign of King Henry the Third were to be heard and adjudged expresly concludeth with a Sciendum est quod in Curia Domini Regis debent terminari cum sit ibi poena corporalis infligenda hoc coram ipso rege si tangat personam suam sicut Crimen laesae Majestatis vel coram Justiciariis ad hoc specialiter assignatis si tangat personas privatas It is to be known or certain that Actions Criminal ought to be tryed in the Kings Court and that before the King himself if as in cases of Treason they concern the Person of the King because there is a corporal punishment to be inflicted or before Justices specially thereunto assigned if they concern private persons And gives the reason vita vero membrum hominum sunt in manu Domini Regis vel ad tuitionem vel ad paenam cum deliquerint for the lives and members of all the Kings Subjects are in the hand of the King either to defend or punish Habet enim plures Curias in quibus diversae actiones terminantur illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias causas Regis terminant aliorum omnium per quaerelam vel per privilegium sive libertatem ut si sit aliquis qui implacitari non debeat nisi coram ipso Domino Rege for he hath many Courts in which divers Actions are to be tryed And of those Courts hath one of his own as that of the Kings Palace and hath Chief Justices who are to hear and determine the proper Causes of the King and of all others upon complaint or by reason of priviledge or liberty as where a man sued or prosecuted ought not to be impleaded but before the King For in vain were many since the Conquest exempted by Priviledge not to be tryed before any but the King himself if our Kings did never use nor could in person hear and determine
married him To which Information the Sub-Escheator pleading that he did not seize the Lands which he that followed the Suit for the King proved that he did and Reginald de Legh pleading that the said Ralph before his death upon view of the said Wards Writings and Evidences finding that he had no Right thereto did acquit and release it and that the like appearing to the said Reginald by the sight of the said Writings he did satisfie and agree with the Friends of the said Ward for the said Marriage but confessed that he did take notice that the Sub-Escheator had seized the said Lands but the said Sub-Escheator perceiving that the King had no Right thereunto did relinquish it to the Friends of the said Heir And as well the said Reginald as the said Sub-Escheator petunt dicunt quod si videatur consilio Domini Regis quod in aliquo deliquerunt quod Dominus Rex suam inde faciat voluntatem did petition and pray that if it should appear to the Court that they had offended in any thing the King might do his Will and Pleasure therein a Modesty and Submission too little used now of later Times whereupon the Court declaring Quod potius pertineat Ministris Domini Regis maxime Justiciariis suis Statum Domini Regis jura Haeredis in custodia ipsius Regis Existentium manu tenere quam in aliquo infringere That it belong'd rather to the Ministers and Officers of the King more especially his Justices to maintain his Estate and the Rights of the Heir within his custody than in any thing to infringe them did adjudg that the said Reginald and Sub-Escheator should be sent prisoners to the Tower there to remain during the Kings pleasure and that the said Reginald should satisfie the King for the Marriage of the said Heir and the said Lands should remain in the Kings hands with a Salvo Jure saving of the Right of all Pretenders thereunto In the three and thirtieth year of the Reign of the aforesaid King upon the Petition in Parliament of Ranulph the Son of Hugh le Mareshal that whereas he was Demandant by a Writ of Entry against the Rector of Ashrugg for a Messuage and divers Lands and he alledged that he could not answer without the King It was answered Rex vult quod respondeatur quod Justiciarii procedant sed certificent Regem super hoc ante redditionem Judicii c. The King willeth that the Tenant do answer the Demandant and that the Justices do proceed but certifie the King thereof before they give Judgement And if then and ever since our Kings have had a Super-intending decision and confirming Power of Judgement in matters of Justice and that without it nothing can by our Laws and reasonable Customs be done in Parliament the highest of all their Courts where the King is as it were the Ens Potentiale and is no less than the Constituent Principle and Soul that animates all their Sanctions where the Laws and Judgements receiving life and vigor from Him and have their Energy do not seldom appear to have been made with Rex voluit the King willeth Rex providit the King provideth Rex mandavit the King commandeth Rex statuit the King appointeth Rex ordinavit the King ordaineth c. all the Courts of Justice and Equity in Westminster Hall and all the Inferior Courts of Justice will not be able to produce if Prescriptions could avail against the Kings Rights and Means of Government any Prescription or any Law Custom or Allowance to exempt them from the Kings Supream Jurisdiction whose Royal Ancestors and Predecessors did heretofore upon all extraordinary occasions so much praeside and intermeddle in their Courts of Justice as Fleta an Author of good account who as hath been before mentioned did about the later end of the Reign of King Edward the Second or the beginning of the Reign of King Edward the Third write his Book of the Laws of England and Customs of Courts at that time used doth declare the usage then to be That when the King in his Progress or Removal from his Palace at Westminster to any other County or Place to reside for a time as our Kings did heretofore often use to do and was in any other County the Steward of his Houshold as Deputy to the Chief Justice issued forth his Writ to the Sheriff of the Place or County where the King was to reside to cause to come before him at a certain day wheresoever the King should be in his Bailywick all Assizes of Novel Disseisin Mort d'Auncester last Presentations Grand Assizes all Juries Inquisitions and Attaints Pleas of Dower and which were summoned to be determined before the Kings Justices at the first Assizes when they should come into those Parts And all Pleas Juries Inquisitions and Attaints assigned to be heard before the said Justices but were not determined giving the parties a day to prosecute if they pleased and likewise to come before them at a day prefixed And to cause to be brought before them all Prisoners Bails and all Attachments which appertain to the Goal-Delivery quod quidem mandatum frequentur retro trahitur per ejusdem Senescalli mandatum Which Tryals might notwithstanding saith Fleta be recalled by the Stewards Mandate which would necessarily produce some delay of Justice or disturbance of the Peoples affairs or expectations Eo quod Rex forte novis emersis propositum suum mutaverat in regard that the King upon some new Emergencies had altered his minde or purpose But if the King did not decline or forbear his intended Progress then was holden the Goal-Delivery by the Steward And all Duels or Tryals by Battels Appeals and all criminal Matters were determined by him with what conveniency he might and afterwards all Causes concerning Trespasses done within the Verge and after that the Assizes and Juries Obligations and Contracts wherein the Debtors had of their own accord bound themselves to be tryed before the Steward and Marshall of the Kings House placita autem quae ibidem terminari non poterint de Comitatu in Comitatum die in diem poterit adjornare vel in Banco vel ad primas Assisas vel alibi secundum quod fuerit faciend ' donec fuerunt omnia terminata but those Pleas which could not be there determined were to be adjourned from day to day or County to County or to the Common-Bench or unto the first Assizes or elsewhere as it should be thought meet until all were rightly determined Et haec omnia ex Officio suo licite poterit facere non obstante alicujus libertate And all this he might by his Office lawfully do notwithstanding any mans liberty And surely such a Super-intendency of the Soveraign was as much allowed to be Law as Reason in the nineteenth year of the Reign of King Henry the Sixth when upon an Affray in London for rescuing a Soldier a
and unfitting a course or method of Government For can any man that is Master of the least grain of Reason or Prudence think it safe for a Kingdom so to restrain if it could be a Soveraign Prince when a person in time of Pestilence or otherwise shall with a Plague-Sore running upon him come into the presence of the King who in case of Leprosie when it was more frequent than now it is can for the preservation of His People from the infection thereof make His Writ de Leproso amovendo command the Leper to be removed to some other place that He should have no power to bid any of His Servants to cause him to be taken away or put in prison Or that King James when his Life was assaulted by the Assassinate which Earl Gowrey had appointed to murther him did transgress any Law of Scotland Nature or Nations when he did arrest and struggle with him until the loyal Sir John Ramsey came to his Rescue Or that that prudent Prince after his coming into England did break any Law of England Nature or Nations or not perform the Office of a King when by his own Authority he did without sending to the Lord Chief Justice of the Kings Bench or a Justice of Peace for his Warrant cause Sir Thomas Knivet and others to apprehend Guydo Faux but some minutes before the Match should have been secretly and undiscovered laid in order to the firing of the Gunpowder and other Matterials which were shortly after to take fire for the accomplishment of the intended treason of him and his wicked Complices to destroy the King Prince Nobility and the Chiefest of his People assembled in Parliament and all that were in or near the Cities of London and Westminster by the Gunpowder Plot of blowing up the Houses of Parliament And whether a King may not in the like case of Contempt or Danger as well do it as he may do where a Souldier prest in the Kings Service upon a Certificate by the Captain into the Chancery being the Watch-Tower or Treasury of the Kings Justice that he absented himself send his Writ or Mandate to one of his Serjeants at Arms to take him which Sir Edward Coke saith may be done per Legem terrae by the Law of the Land and may upon a Certificate of an Abbot or Prior into the Chancery do the like by his Writ to the Sheriff to take a man professed in Religion that is Vagrant and alloweth it to be Lex Terrae a Legal Process so to do in honorem Religionis in honour and respect to Religion or may not as wel imprison a man for a Contempt as Discharge him Or why He may not Arrest or cause any man to be Arrested for Felony or Treason or but suspition thereof when Sir Edward Coke is of opinion any man may do in the Kings Name upon a common Fame or Voice or Arrest a man by warranty of Law and of his own Authority which woundeth another dangerously or keepeth company with a notorious Thief whereby he is suspected or if the King shall not upon necessity or extraordinary occasions be enabled to do it for that supposed rather than any reason at all that he ought not so to do in regard that no man can have an Action against Him for any wrong or injury done unto him by the King How have our Lawes and reasonable Customes for many Centuries and Ages past submitted unto and not at all complained of the Kings Seizure of Lands but suspected to be forfeited or of Lands aliened without Licence or pardon of Alienation and the like Or why should not our Kings have as much liberty as the holy King Edward the Confessour might have had if he would to have commanded a Thief to be apprehended for stealing in the Royal Lodgings when he bad him onely be gone lest Hugeline his Chamberlain should come in and take him Or as legally as King Edward the Third and his Council did commit one that was found arm'd in his Palace to the Marshalsea whence he could not be bayl'd or deliver'd until the Kings Will and Pleasure should be known Or as it was adjudged in the thirty nineth year of the Reign of King Henry the Sixth when in an Action of Trespass the Defendant justified the doing thereof by the Command of the King when he was neither Bayliff nor Officer of the Kings and it was adjudged by the Judges that he might so do without any Deed or Writing shewed for it or if they should mistake in their Arrests or Imprisonments of suspected Traytors or Felons should not have as much liberty as a Justice of Peace hath in criminal matters or as the Judges have in his Courts of Justice in civil Actions where the parties that mistake or bring their Actions where they should not or Arrest one man in stead of another are onely punished with Costs of Suit or Actions of False Imprisonment but not the Judges or Justices of Peace for howsoever some Flatterers when King Richard the Third having murthered his Nephews and usurped the Crown and sate one day in the High Court of Chancery had in some of the Pleadings or Causes heard before him alledged that the King could do no wrong and some of our Lawyers have since so much believed it as they have reduced it into a kind of Maxime and given it a place in some of their Arguments Reports Yet Bracton in the Reign of King Henry the Third and Justice Stamford in the Reign of Queen Mary did believe the King might unwillingly by Himself or His Officers or Ministers do wrong and declared the Law to be both in Bractons and Stamfords time that in such Cases the Subjects where they have any matter of Complaint or Grievance need not want their legal Remedies by Traverse Monstrans de Droit or Petition the reason of the latter being as Stamford saith because the Subject hath no other Remedy against the King but to supplicate him by Petition for the Dignity sake of the Person And a late Experience hath told us how a Dispute betwixt our two Houses of Parliament whether a Great Person accused of Delinquency might be Arrested and put under Custody before his Charge or Accusation could be made ready gave the Party opportunity to escape into the Parts beyond the Seas and the Disputants leisure and time enough to agree of the matter And it should be remote enough from any the suspition of Errour or over-credulity for any man to think an Arrest or Imprisonment by the immediate Command of the King in the case of Treason or Felony or but suspition of either of them not to be as legal as that of a Justice of Peace made by a Lord Chancellor or Lord Keeper of the Great Seal of England in his Name and by his Authority derived under him And those who will take out Sir Edward Coke's before mentioned Lessons and enter themselves into
suos ibidem et ad assignand ' Justic ' per Commissionem et ad Error ' corrigend per ipsum Episco pum vel alios Justiciar suos tam ad sectam Domini Episcopi quam aliorum praediâ—tus Willielmus replicavit quod non esset consonum rationi se ipsum de facto prosecutione proprijs fore Judicem cum proprie ad Regiam Majestatem in omnibus Causis ortis inter subditos Jurisdictio pertinet dinoscere et licet ad aliquam Personam per privilegium speciale de causa cognoscere indultum fuit si substitutus in exhibitione Justitiae defecerit Errorem per superiorem et non per substitut ' corrigi debet et super hoc dati sunt dies de termino in terminum To which he pleaded that no Writs were delivered to him at Durham and to that which was delivered unto him at Waltham he had returned that he is Count Palatine and Lord of the Royalty of the Lands called the Bishoprick of Durham and hath all the Rights and Regalities which do belong unto a Count Palatine and that Royalty there to be exercised by him and his Ministers and Justices that is to say hath a Coroner Chancellor and Court of Chancery and that the Kings Officers do not in any thing intermeddle therein and that the said Bishop as Count Palatine hath there likewise his Court and Justices of Common-Pleas as well real as personal and power to assign by Commission Justices to correct and reverse Errors committed by him or any of his Justices as well at his own Suit as others Unto which the said William replyed That it was not reason that he should be Judge of his own Actions when as properly it belonged to the Majesty of a King to determine of all Causes betwixt his Subjects And although he in favour granted to some Person a special priviledge to hear and determine Causes yet if any substituted by him do fail in the distribution of Justice the Errors shall be corrected by the Superior and not by the Substitutes whereupon further days were given from Term to Term. Nor was the Duties of Subjects so worn out but that so much respect was in those better Times given to our Kings Royal Protections granted to such as were not employed by them as the Laws and reasonable Customs oâ— England did allow the protected Persons in their Lands and Estates to bring their Actions against the Infringers or Disturbers thereof as in the Case of Roger de Limecote against the Sheriff of Liecester in the first year of the Reign of King Richard the First for disseising him of two Knights Fees Nicholas Talbot against William Prior of Dunstar in the eight and thirtieth year of the Reign of King Edward the Third of Walter Warr against Gervase Wretchey and John Parkey in the same year and of many others in the said Kings Reign and no Pleas in Bar or alledging Illegality put into the same but in others some collateral Pleas and Defences made by Releases or the like For those Lovers of their Countrey and honor of their Kings did not think as some would fondly and untruly assert that all the Royal Protections granted by them had at the first no better an Original or Foundation than an Imitation of the many Protections and Priviledges granted by our Kings and Princes to Bishops Monasteries and Religious Houses did not believe that our Kings could not respite for a while the payment of moneys due unto any of their Subjects or do as much as amounted to it when King Edward the Third in his Wars with France and great want of Moneys did about the thirteenth year of his Reign revoke divers Assignations for the payment of Moneys due unto private and particular persons until he should be better enabled to pay them And it was about the twelfth Year of the Reign of King James in the Grand Case of Boltons Complaint against the Lord Chancellor Ellesmeere adjudged in Parliament That upon a Bill called A Bill of Conformity exhibited in Chancery by a Debtor against his Creditors for not accepting of his Offer of as much satisfaction as he was able to give them and for refusing thereupon to permit him to enjoy his liberty the Lord Chancellor or the Lord Keeper of the Great Seal of England might by Injunctions prohibit and stay all Suits at the Common Law commenced by him or any such refractory Creditors For our Courts of Chancery Kings-Bench Common-Pleas and Exchequer have in their several subordinate Authorities not seldom mitigated and reduced the high and unreasonable Fines incertain demanded by divers Lords of Manors of their Copy-hold Tenants for their Admissions unto a more reasonable Rate of two years improved Value and enforced them to accept it And Sir Edward Coke in his Comment upon Magna Charta would not bring into the meaning of the Clause of Nulli negabimus vel differemus Justiciam That the King would not deny or delay Justice such Protections as do appear in the Register and are warranted by the Books of Law And although in the eighth year of the Reign of King Henry the Sixth it was in transitu and by the way said by Cottesmore a Judge in the Case concerning the Priviledges of the University of Oxford That the King cannot grant that a man shall not Implead or have any Action against another Yet it was at the same time declared to be Law and right Reason by Babington a Judge That to a Lord of a Manor Conusance of all Trespasses done within his Lordship may be granted by the King and that a Plaintiff shall be bound to bring his Action accordingly and that in that Case the King hath not fore-closed him of his Action so as our Novelists and such as invent all the Oppositions they can against the just and legal Authority of their Sovereigns may do better to acknowledge that howsoever it was the opinion of some of the Judges in the Reign of King Henry the Sixth That if any should Arrest a man by the Kings Command when all men Arrested are so by the Authority of the King and his Writs or Process an Action of False Imprisonment might be brought against him that obeyed the Kings Command although it was done in the presence of the King Yet the whole Tenor and Meaning of that Case and that sudden Opinion arguendo or by way of instance deliver'd thereupon was no more but that such a Command ought to be attended with some Specialty or cause shewed And so little did the Judges of the Court of Kings-Bench in Trinity Term in the ninth year of the Reign of King Henry the Fifth intend or think it fit to subject to the humor of any froward or undutiful person the important Affairs and Service of the King As William Reedhead and Nicholas Hobbesson Purveyors for the King having taken forty Quarters of Malt for the Kings use for the Victualling
of the Town of Harfleet in France from William Atkin he brought his Action of Trespass against them for the taking away of fifty quarters of Malt from him Unto which as touching the supposed Trespass and ten quarters of Malt they pleaded Not Guilty and took Issue thereupon And as to the forty quarters of Malt residue pleaded and produced the Kings Letters Patents dated the twentieth of January in the third year of his Reign and that he thereby did Assign them joyntly or severally to take a thousand quarters of Malt for the Victualling of the said Town of Harfleet where-ever it might be found as well within Liberties as without the Lands of the Church onely excepted upon reasonable payment by the King for the same and to provide sufficient Carriage by Land or Water to the City of London And in regard that they had notice that the said William Atkin might well bear and afford the same beyond his necessary Occasions and did sell divers quantities of Malt in the Markets The said William Reedhead and Nicholas at the time of the pretended Trespass did to the use of the King as aforesaid take the said forty quarters of Malt charged the said William Atkin on the Kings behalf by vertue of the Kings said Letters Patents that he should carry the same to London and deliver it to Robert Barbet who should pay him as well for the said forty quarters of Malt as for the carriage thereof which Robert Barbet was assigned by the Kings Letters Patents to receive it for the use of the King and transport it to Harfleet and to make full payment for the said Victualling of the Town aforesaid and that the said William Atkin did carry the said Malt to the said Robert and received of him full payment for twenty quarters of the said Malt and the carriage thereof and that the said Robert Barbet assigned the said William Atkin within six moneths after to be paid for the said other twenty quarters at London which forty quarters of Malt so taken as aforesaid for the Kings use came to his use at Harfleet aforesaid unde non intendunt quod Cur. hic in loquela predicta ad prosecutionem predicti Will. ulterius versus eos procedere velit ipso Domino Rege inconsulâ—o petunt auxilum de ipso Rege quod eis per Cur Concessum est Wherefore they hope that the Court will no farther proceed in that Action until the Kings pleasure shall be known and do pray the Aid of the King therein which by the Court was granted unto them Et super hoc dies dat est partibus predictis coram Domino Rege in statu quo usque xv scil Michaelis ubicunque c. Et dictum est prefato Willielmo quod interim sequatur penes Dominum Regem de licentia habend ad procedend ulterius in loquela predicta si c. Et dies dat ut supra usque Oct. Hillarii inde per seperales dies Terminos usque Octab. scil Michaelis Whereupon Day was given unto the parties aforesaid in the state or manner as now it is until fifteen days after Michaelmas And the said William Atkin was commanded that in the mean time he should petition the King for leave or licence to proceed if he would in the Action At which day time was further given to the parties aforesaid in manner as aforesaid until eight days after St Hillary and the said Wil. Atkin was commanded that he should petition the King if he would for leave as aforesaid At which day and time day was given to the parties in manner as aforesaid until Easter Term then next following and the said William Atkin commanded if he would to petition the King as aforesaid At which time further day was given to the parties aforesaid until Trinity Term next following and the said William Atkin commanded to petition the King as aforesaid At which time further day was given to the parties aforesaid until eight days after Michaelmas and the said William Atkin was commanded to petition the King as aforesaid And no further Proceedings were had thereupon as appeareth by the Roll where otherwise it would have been entred Neither could our less contentious turbulent Fore-fathers probably be willing to give lodging or entertainment to any such vain and unwarrantable conceits as do now too frequently attempt an invasion upon the Lex Regia of their Soveraign or necessary and legal Rules or Methods of Government or the very Attendance upon the Person of the King and his many times indispensable Affairs in order to the good and safety of his People or that upon Licence demanded to prosecute any Action at Law against any of his Servants it should be any such delay of Justice as to furnish out their supposed matters of Grievance or Complaint that a little time or respite should be given to any of the Kings Servants either to give satisfaction or answer the Action When Bracton in the Reign of our King Henry the Third declared it to be no new or evil Law or Custom of the Kingdom that in the Kings Commissions to the Justices Itinerant or Assizes there was an Exception of Causes wherein qui profecti sunt in servitio nostro those which were gone or sent in the Kings service were concerned or that such a reasonable part of time or respite given should nurse up or encourage any disccontent when the Judges in an Action depending in the Court of Common-Pleas against one that was none of the Kings servants or employed by him were in the Cases of an Essoyn de male lecti of sickness to cause a View to be had of the sick Person and if really sick to assign him a reasonable time to arise and appear before them or if he had been viewed and had malum transiens an intermitting Disease or if a Languor or Languishing were testified and such an Essoin were cast before the Justices Itinerant in their Circuits where they had no power to receive any such Essoin mittere possint ad ipsum ut faciat Attornatum they might send to him which could not be done suddenly to make an Attorney to answer for him Or that our Kings should be able to Protect and Priviledge such of the Clergy as in former times were as Clerks or Officers in Chancery employed in his Service as to send notwithstanding the then great power of the Bishops their Diocesans his Writs De non Residentia of dispensing with their Non-residence upon their Benefices and command them as hath been before remembred not to be sequestred for their Absence whilest they were employed in their Service or if sequestred to unsequester them or if Fined by any Ecclesiastical or Church Censures that such Fines should not belevied which was in those times not believed either by the Layety or the Clergy themselves to be illegal And in the later of the said Writs that such a sequestration was in juris Coronae
Laws of this Land said that it was an ordinary Complaint as well in the Temporal as the Civil and Ecclesiastical Courts that our Lawes were far otherwise interpreted than they were in former Ages and declared that the King by communicating his Authority to his Judges to expound his Lawes doth not thereby abdicate the same from himself but may assume it again unto himself when and as often as he pleaseth And was long before that so believed to be consistent with our Magna Charta the doing of Justice to his people and the dernier resort or ultimate Appeal as Saint Paul did unto Caesar and so desirable by those that could have remedy no where else as Reginald Basset having great Suites with William de Harecourt Thomas de Astley and other Knights that held of the Honor of Leicester did in the eleventh year of the Reign of King John give as an oblation two Palfreys to the King that the Cause might be heard before him wherein he got the better as appeareth by a Fine of 200 Marks the next year after paid into the Exchequer by the said Thomas de Astley pro falso clamore for not proceeding in his Suit or Claim against him For certainly in that great and most prudent Judgment and Justice of Solomon in the Case of the true and false Mother claiming the child when al Israel heard of the judgment which the King had judged and they feared the King for they saw that the wisdom of God was in him to do Judgement that so justly admired piece of Justice was as well and legally done in his House or Chamber as if it had been done by him in the Sanhedrim or any of his Courts of Justice In the evidencing whereof although the Arguments by me used and the Authorities cited may to the more learned and lesser part of the people seem to be too many needless or superfluous yet they may to others appear to be as profitable as necessary to undeceive or antidote all such who having a Magna Charta of their Fancies do metamorphose all they can our better Magna Charta and make their disobedience conveniences or interest the Standard and Rule of their obedience and may be more and more mislead or infected by the Errors of the opinions delivered for Law in the Case before recited of the Prohibitions and to wean them from those dangerous Antimonarchical Doctrines which they had suck'd in the late times of confusion when our Lawes and right Reason attending them and even Truth it self were by an usurped power false authority and â— mechanick and ignorant part of the people lead by a rebellious party persecuted banished or affrighted Wherefore they who do delight to oppose and cavil Regal Authority by gleaning all the objections which they can either frame or hear of and put the Law upon a Rack or Torture to wring and wrest out of it any thing that may help to accommodate their distempered and unruly Fancyes may think they are in the Road and High-way of Wisdom and Applause but will in the end whilst they forget the duty of Subjects to their King and the Commands of God to honour and obey him find themselves to be more than a little deceived and to be far enough out of it and might do better to hasten out of the sinful ways they walked in and the unsafety of the Paths they have trod and travelled in and help to still and put to silence rather than increase and foment those causeless complaints wherewith too many of our Nation surfetting upon happiness do too much affright and afflict themselves and others in their opposing the just priviledges and protection of the Kings Servants And remember that although there are few evils or not to be justified matters of Fact as well as those which have been good and vertuous which have not left some Vestigia records or precedents to after Ages and it hath not been unfitly said that Exempla illustraâ—t non probant that Examples may illustrate but not prove yet the precedents and examples which are founded and built upon Law Right Reason and Truth as these by us alleaged on the part of the Kings Servants have been are to be heeded and harkened unto and the contrary rejected That the instances and examples brought by me out of the Civil and Cesarean Laws ought to oblige as they do with many other Nations propter aequitatem in regard of the Equity and reasonableness thereof and more especially when ex jure gentium naturali ratione by the Law of Nations and Nature they are in the particulars by me endeavoured here to be asserted not only by them but our Common Laws and reasonable Customs of England to be justified and maintained And that it is and should be the Interest of all the good people of England to preserve the Honor of the King and that the Bonds of gratitude in a return of what they have in their Liberties and Priviledges received of him and his Royal Progenitors should perswade them not to deny unto him those just Rights which by Law do belong unto Him and his Servants CHAP. XXI That a care of the Honor and Reverence due unto the King hath been accompted and is and ought to be the Interest of all the People of England and that the Servants and retinue of a Soveraign Prinee who hath given and permitted to his Subjects so many large Liberties Immunities Exemptions and Priviledges should not want those Exemptions Immunities Customs and Priviledges which are so justly claimed by them FOR every man who hath not bound himself more than as an Apprentice to a Spirit or Custom of contradiction of Authority and made himself a slave to wickedness and a Companion of those that speak evil of Dignities may confess that it is and should be every mans Interest to observe the fifth Commandement of God in that Sacred and dreadfully pronounced Decalogue to Honor and reverence the King and common Parent and that St. Peter hath so conjoyned the Fear of God and Honor of the King as that the one cannot be without the other and it is obvious to every mans understanding that where there is Honor there seldome wants obedience and where there is an obedience Honor most commonly doth bear it Company so that if the Law of God Nature and Nations and the municipal Laws and Customs of all the Countreys Kingdoms and Common-Wealths of the World where Reason hath got any admittance have submitted unto and acknowledged a Majesty and more especial Honor to be due unto their Supreme and Soveraign si Majestas quasi major status dicitur quis non fatebitur majorem statum esse Regis in suo regno and if Majesty is so called in regard of a greater State and Degree who will not acknowledge that a King is greater than any in his Kingdome certae sunt saith Besoldus affectiones quae superioritatem concomitantur sine quibus
Lands in antient Demesn to the prejudice of the Lord and for those that are Summoned to the Sheriffs turn out of their own Hundred a Writ de libertate allocanda for a Citizen or Burgesse to have his Priviledge allowed when he is impleaded contrary thereunto and a Writ de Consuâ—tudinibus servitiis a Writ of right close against a Tenant which deforceth his Lord of the Services due unto him and a Writ to exempt a man from the view of Frank pledge when he is not there resident although all men are obliged thereunto by reason of their Lands not their habitation and as Bracton saith a view of Frank pledg is res quasi Sacra quia solam personam Regis respicit introducta sit pro pace utilitate Regis as it were a Sacred matter or thing in regard it taketh care of the Kings person and was introduced for his Peace and Profit should by the rule of gratitude if there were nothing of right or duty to perswade it not tell how to obstruct that so antient Claim of Priviledge of the Kings Servants when it will ever be as Consonant to Law and right Reason for the Kings Servants not to be disturbed or prejudiced in their duties and attendance upon the King as it is for any others Of his people and Subjects being not his Servants when by a Statute made at Gloucester in the 30th year of the Reign of King Edward the first the King himself as that Act of Parliament mentioneth providing for the Wealth of the Realm and the more full Administration of Justice as to the Office of a King belongeth the discreet men of the Realm as well of high as low degree being called thither it was provided and ordained that when men were to claim or shew their Liberties within a time of 40 days prefixed and were before the King that is to say in his Court of Kings-Bench where himself is by Law supposed to sit they should not be in default before any Justices in the Circuits for the King of his especial grace hath granted that he will save that party harmless and if the same party be impleaded upon such manner of Liberties before one or two of the aforesaid Justices the same Justices before whom the Party is impleaded shall save him harmless before the other Justices and so shall the King also before him when it shall appear by the Justices that so it was in Plea before them and if the aforesaid Party be afore the King so that he cannot the same day be before the said Justices in their Circuits the King shall save that party harmless before the aforesaid Justices in their Circuits for the day whereas he was before the King And not at all agreeable to reason that the Franchises and Liberties granted by our Kings to the Counties Palatine of Chester Lancaster Durham the Cinque ports the City of Gloucester with the Barton or little Territory so called annexed unto it the large extent of the Liberty of the Bishop of Ely that of ten Hundreds to the Bishop of Winchester in or near Somersetshire Seven Hundreds in or near Gloucestershire Claimed by Sir Robert Atkins Knight of the Bath the large extents and compass of the Liberties and Soke of Dâ—ncaster in the County of York and of Sheffeild Rotherham and Hallomshire in the same County Grantham and its large Soke and Liberties in the County of Lincoln Tindall in Hexamshire in the County of Northumberland and many an hundred more of Liberties and Franchises not here specified exclusive to all others intermedling therein should by the power of the Kings Grants or Allowance and a just reverence and respect of their Neighbours and Tenants have and enjoy a Priviledge and Civility not to have their Servants Arrested or Imprisoned without complaint first made to their Lords or Masters or leave asked upon any of the Writs Process or Warrants of their own Liberties or Courts before they suffer their Bailiffs or Officers to Arrest any of their Servants or upon the Warrants or Process of any other the Kings Courts untill a Writ of non omittas propter aliquam libertatem claimed by them shall be after a not Execution of the first be awarded either or both of which may give a sufficient or large respite for the parties Prosecuted to satisfie pacifie or prolong the patience of an eager or furious Creditor and that the King who gave and indulged those Liberties should not be able to deserve or command a like Licence in the Case of any of his own Servants to be demanded of him either upon a Process made out by the owner or his Substitutes of the same Liberties or any other Warrant or Process directed to the Owner or his Subordinates of that Liberty Or should not have as much Priviledge for his Servants as the Miners in the Peak-hills in Derbyshire or those of the Stanneries in Devonshire and Cornwall not to be Sued or Prosecuted out of their Berghmote or Court of Stanneries or disturbed in their Works or business Or that his Servants should not as well deserve their Priviledges to be continued unto them as the Kings Tenants in antient Demesn who upon the only reason and accompt that they were once the Kings Tenants and did Plow and Sow his Lands for the maintenance and Provision of his Houshold and Family are not yet by the Tenure of those Lands of which there are very many Mannors and great quantities in England Ousted of those their Immunities or denyed them but the very Tenants at Will who are as they say here to day and gone to morrow do claim them and are not in any of the Kings Courts of Justice debarred of those exemptions although those Mannors and Lands are very well known to have been long ago Granted away and Aliened by the King or his Royal Progenitors since passed from one Owner to another for many Generations the effect by an Indulgence Permission or Custom contrary to the general and every where approved Rule or Maxime that cessante causa tollitur effcâ—tus the cause or reason of the thing ceasing the effect should cease continuing after the Cause ceased in so much as many do now enjoy those Priviledges who are no Tenants of the King neither have any thing to do with his most Honourable Houshold or have any Relation thereunto For if all the depths of Reason and Humane Understanding were Sounded Searched and dived into by the Sons of men all the Ingenuity of Mankind will never be able to find or assign a Cause or Reason why the House of Commons in Parliament have heretofore Petitioned our Kings for a Freedom from Arrests or Imprisonment or to Punish any the Offenders therein if they had any doubt of his want of a legal Power and Authority therein to grant it or why the business or Service of the King concerning himself or the Weal Publick should so
Interpretation or Execution of the new that the Graecians had their Nomophilaces ad quos rerum gestarum consignatio pertinebat utextarent Monumenta Publica ad quae recurrere liceret quum aliqua in re majorum exemplum requireretur and that the Romans so greatly valued their old Records as they gave great Preferments and Honours to Flavius a Scribe or Notary And the Priviledge of a Curule Chaire for publishing and bringing some of them to light that all other Civilized Nations and even those of China and Japan have highly esteemed their Records and Memorials that in our Parliaments Courts of Justice and Chancery Records and precedents in any Matters or Cases of Difficulty are not seldome enquired after and directed to be searched that the Dates Clauses or Words of some Acts of Parliament and the Reports of Cases adjudged have been found to have been mistaken and rectified after by the Records That it is Felony to imbezill or corrupt a Record that Courts of Records are more Honoured and esteemed than those which are not and that the Law will not permit a Record to be averred against or much gainsaid And that such a care was taken of our Records by our Ancestors as the Commons of England did 〈…〉 Cause in their Petition of Parliament in the 46th year of the Reign of King Edward the 3d stile them the peoples Evidence and pray to have upon their occasions a free and uninterrupted access unto them Our Kings have in several of their Reigns made allowances of Money and Expences for the Calendring and well ordering of them and caused them to be kept and preserved in places of strength and safety whereby to secure them from the fury of Wars or Fire or other destroying Casualties That if the Reports of cases adjudged upon Demurrers or special Verdicts and the responsa prudentum and carefull and well Studied Arguments of the Judges such as the Learned Mr. Plowdens Commentaries and the Reports of Dier Anderson Coke Crooke Hobart and other the Labours and Memorials of the venerable and learned sages of our Laws the Errors too often attending the Works and Labours of all Mankind only excepted do deserve their â—ust esteem and value and are a light and guide to the Reason and Judgement of Posterity and after Ages and the more when they have the assistance of the Records to back and Warrant them and that even Histories are the better when they keep in the sight and Company of Records and enjoy their Assistance And if in their Truth and Evidence they conduce much to that verity and certainty which ought to be in Histories our Records certainly cannot by any Reason or Rules of Prudence be believed or understood to be useless or unnecessary for the Study or asserting of the Truth and Rationality of our Laws and the Rules and Method thereof Nor are those Jewels of Time to be ranked with Romances or such Triviall things as may claim no more than a Cursory and careless reading when if carefully as they ought to be entred and kept they do give us the Certainty and Truth of matters of fact and do not seldome intimate or Illustrate the Causes and Reason thereof And may well deserve a better Credit than any Reports of cases adjudged or responsa prudentum some of which are but Opinions and Answers not seldom suddainly and unpremeditately given to the many times ill or untruly put State of the case or question by the Advocates and Lawyers at the Barr or than any of the most severe and impartial Histories which although they have been by the Wisest Major part of all Nations for many Ages past believed to be great and excellent Luminaries in their several Spheres and should be Testes veritatis yet if the Records of every Nation who have the happiness to have them being Tabulae Monumenta Publica the faithfull Registers of past Actions are allowed to be good to make Histories which are greater Strangers unto them than they should be and are too often written without any acquaintance with them that surely which crediteth and maketh them the better to believed is not less but more to be valued for a sad experience hath told us that the destroying of the Books of the old Philosophers by Aristotle and the former Books of the Civil Law by Justinian when he compiled his Code and Institutes and of our English Books and Manuscripts when Polidore Virgil and his History would not willingly suffer any other to be his Competitors did much obscure and hinder the Knowledge and light which is now more dark and hidden than otherwise it would have been And we may believe that if Records and faithfull and Antient Memorials had ever deserved as they never did to be slighted they might now be spared and admitted into their former reputation and not be made to truckle under Reports of Cases adjudged when our last twenty years Confusion have by the Knavery and Imposture of too many of the Stationers furnished out abundance of certain fragments of Laws and untrue and mistaken Reports and too many Histories of the World have suffered in the want of the most necessary Aid of Records when so great a part of the Knowledge of the first Ages of the World was washed away by the Deluge and the learning and Experience of many Ages after lost by the want of Letters which the Wars and the rude and unruly Behaviour of those early Generations would not admit and that to despise Records and Antiquities is to proclaim us as Tully the most excellent Roman Orator long ago said to be willing to be Children as of yesterday and to have no retrospect into the Wisdom of the Antients and experiences of past Ages teaching us wherein some have succeeded and others miscarryed is to put our selves into as short a Memory as that of the Thracians some of whom were Reported not to be able to number or reckon any further than four years or to make light incertain or loose traditions the most we can reach or attain unto and refuse the ante Acta vitae which were wont to be the faithfull guides and Conductors of our Actions to come and may render those who despise the old and only delight in new things to be in no better a Condition than some of the worthy and learned Assembly of the Royal Society of Gresham Colledge who by not heedfully considering old things have unhappily been drawn into the field and enforced to encounter with Mr. Henry Stubs his Animadversions wherein he undertakes to prove that some things which they thought to be new have been of a much more Early date So as whether Reports of Cases adjudged in Law be old or new well or ill taken both they and Histories are to acknowledge the Records to be their Superiours and that they are in all things the better for their acquaintance And those great Obligations must neither be denied or forgotten which our Laws
do owe unto the Records of of this Kingdom and our great Seldens Intimacy and familiarity with them by whose learned Labours and Observations we have had the benefit of the disdiscovery and dispelling of many an Error and of the Illustration of many difficult and dark Notions and places in our Laws by which his great insights and inquiries into the English Records and Antiquities and the Seuerest part of the Learning of our Common Laws and the Civil Law and Laws of many Nations he became enabled and was as a learned Forreigner hath justly stiled him a Dictator or mighty man of Learning to giving aid and assistance tanquam de Throno sapientiae to the republick and Posterity of good Letters and Learning his Knowledge therein being so singularly exquisite Surmounting and Supereminent as he was not unfitly said to be decus gloria gentis Anglorum and if Nature could have so long have kept him from the fate of Mortality ought to have survived many Centuries more and have continued his admired Course in Learning untill the period and end of the World for that as Sir John Vaughan Knight now Lord Chief Justice of the Court of Common Pleas his contemporary and most intimate associate in those more severe Recherces and choice pieces of Learning and Antiquities hath since his death bemoaning the loss and want of such a Treasury of Learning not long since well expressed it Debuit cum mundo mori it was too great a loss to the World and after Generations that he should dye before it for although the neglect of Records and Antiquities which might have a greater veneration than this Age is willing to bestow upon it have of late been so much undervalued as to be termed rusty and motheaten and those which do give them their true esteem and value superstitious Porers and Doters upon them So as the laborious Learned and well deserving Antiquarie Mr. William Dugdale was not without Premisses to Warrant his Conclusion when with some regret mixt with facetiousness he said that for any man in these Times to busie himself in the old Records or to spend his Time Candle in the search sifting of Antiquity it would by the little incouragements which have been given unto it amount unto as small a Profit or Purpose as to set up and keep a shop to sell old fashon'd Hose Trunk-Breeches and long wasted Dublets and expect to gain by it To so great a mispris and scorn are those usefull inquiries and Lamps of Learning fallen into when as they do draw out of the pit and devouring Jawes of Time many a pretious and hidden Truth and are not seldome the only rescuers of it and was better respected when old Marculfus Wrote his Formulae's Pancirollus his deperdita and when Brissonius and Pasquier Camden Selden Linden brogius our Learned Sir Henry Spelman and Mr. Dugdale and many other Worthies not here ennumerated made it their Business to discover them and the very Learned Sir Robert Cotton was at so great an Expence of Money and Time to Redeem so many as he did from the Captivity of an everlasting Oblivion which hath taken away and concealed many a Truth from the former Generations this present Age which are to come and to dig in those hidden Mines of incomparable Treasure But when the scorners of this Age shall have surfeited with the villifying of the Wisdom of the former and the Experiences of men and times past which Solomon in the high and not to be valued Price which he did put upon Wisdom and the Incouragement which he gave to the Study and search after the Riches and Treasures thereof would never have advised them unto They or some other after them may learn to forsake that grand piece of resolved folly by what this Nation and the Kingdoms of Ireland and Scotland have so greatly suffered in the late time of Rebellion and Confusion by some of our Lawyers and too many of our Nation not understanding the Rights and Prerogative of the King which the old Records of the Kingdom did and will always abundantly witness and by too many of the Inferior Clergies Ignorance of the Ecclesiastical Histories and Primitive times which did not a little contribute unto it and believe that the greatest disservice which can be done to Princes to endeavour to advance their Prerogative beyond the Laws of the Land right Reason and the necessary and just means of Government and that on the other side they are small Friends or rather great Enemies to the Publick that will go about to perswade the People or entitle them to more Liberties than the Laws well interpreted will allow them that there is a Justice to be done to the King in giving unto him that which belongeth unto him and in not denying his just and Legal Rights as well as a Justice to be done by him in what shall concern his people and their Liberties That there is a Majesty due to Kings and that the Rights of their Courts Palaces and Servants are neither to be neglected or continued And therefore if the Romans those great Champions and Patrons of Libertie were so Jealous and Watchfull in the Preservation of the Honours and respects due unto Magistracy and Superiority as their Consul Fabius would rather for the time forget the Honour due and payable from a Son to his Father of which that Nation were great observers than relinquish any thing of it and commanded by a Lictor or Officer his Aged Father Fabius the Renowned preserver of Rome in a Publick assembly to alight from his Horse and do him the Honour due unto his present Magistracy which the good old man although many of the People did at the present dislike did so much approve as he alighted from his Horse and embracing his Son saidâ— Euge fili sapis qui intelligis quibus imperes quam magnam Magistratum imperes I may give my self an Assurance that your Lordships will with greater reason make it your endeavours not only to preserve the Rights of Majesty but the Rights and Priviledges of those great and Honourable Offices and places which you hold under the King our Soveraign and be as willing as your great and Honourable Predecessors in those Offices were to transmit them to their Successors in no worse condition than they found them Which that it may equally be done in that particular of the Kings Servants just Rights and Priviledges is the only design of the ensuing vindication of them and the Honour and respect due unto our Soveraign and submitted to you Lordships Judgment and Consideration humbly intreating your Lordships to pardon any the Errors or failings therein which in the haste of the Press my desire to keep pace with it when I was crebris intermissionibus aliorum negotiorum incursionibus frequenter interpellatus might easily happen and more especially in an undertaking of that Nature nullius ante trita pede being a Path never before as
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
duce venientem aut ad illum ambulantem in Itinere inquietare quamvis culpabilis sit no man ought to be molested in his journey or going to or from the Dukes Court although there might be any Action or Cause to trouble him By the Laws of the Lombards or Longobards si quis ex Baronibus nostris ad nos venire voluerit securus veniat illaesus ad suos revertatur nullus de Adversariis illi aliquam Injuriam in itinere aut molestiam facere praesumat If any of our Barons have an intent to come unto us he is safely to go and come and none of his adversaries are to do him in his Journey any wrong or Injury By some Laws made in the Raigns of the Emperors Charlemaigne and Lewis his Son nullus ad palatium vel in hostem pergens vel de Palatio vel de hoste rediens tributum quod transituras vocant solvere Cogatur That no man coming to his Palace or going against the Enemy or returning should be compelled to pay the Tribute called Passage-money The Tractatoria Evectiones allowed by the Western and Eastern Emperors that Stables and Provisions of Horse-meat and mans meat should be provided sumptu publico at the Peoples charge for such as Ride post Travailed or were sent upon the Emperors Affairs may inform us how great the difference is and ought to be betwixt the Kings Affairs and those of the Common People The Laws of the Wisigoths a People not then much acquainted with Civilities compiled about the year or Aera of our Lord 504 may teach us the value of Princes cares of their own and the Publick Affairs managed by their Servants or whosoever shall be imployed therein Quod antea ordinare oportuit negotia Principum postea populorum when they declared that the Affairs or concerment of the Prince ought to take place of those of the People Quia si salutare Caput extiterit rationem colligit qualiter Curare cetera membra possit because if it be well with the head it will be the better able to take care of the rest of the Members Et ordinanda primo negotia Principum tutanda salus defendenda vita sicquè in statu negotiis plebium ordinatio dirigenda ut eum salus componens prospicitur Regum fida valentibus teneatur salvatia populorum That in the first place the business of the Prince the safety of his life and the defence of his Person are to be heeded and the Affairs of the People so Ordered as whilst a sufficient provision is made for the safety of the Prince the good of the People may be established Of which our English Laws have such a regard as they would some few Cases only excepted dispence with any man 's not appearing or coming to Justice If he though not the Kings servant in Ordinary sent by His Attourney the Kings Writ of Protection signifying that he was sent or Imployed in the Kings Service That if any Archbishop Bishop Earl or Baron do come to the King by His Commandment passing by any of His Forrests he might notwithstanding the great severity of the Forrest Laws against such as did Steal or Kill any of the Kings Deer or Venison take or kill one or two in their going and return The Register of Writs doth bear Record that where one of the Kings Servants hath been returned of a Jury or Summoned probably to be a witness or upon some other occasion to attend some Inquisition or Inquest to be made in any other place then the Kings House or before any other Judges or Magistrates a Writ hath been sent under the Great Seal of England to excuse his absence because he was the same day to attend the Steward and Marshal of the Kings House about some affairs of the Houshold which may shew that the King had a mind aswel as reason not to permit the necessary attendance of His own Servants in or upon His Houshold occasions to be omitted to wait upon strangers or other mens busines in Courts or matters of Justice And the Law doth so much prefer the Kings business above the Common Peoples as that all Honor and Reverence is to be given to the Kings Privy Council For that as Sir Edward Coke saith they are partes Corporis Regis incorporated as it were with him are profitable Instruments of the State bear part of his cares and which is no more then what the Civil Law allows them when it terms them Administri Adjutores Adsessores helpers and Adsessors qui arcanis Principis interesse meruerunt in Contubernium Imperatoriae Majestatis adsciti and which deserve an Interess in the Princes secrets and affairs of State and are as Spartianus saith admitted as it were into the Society of Royal Majesty Where the body of a Debtor before the Statute of 25 of King Edward the third have by some been believed not to have been liable to Execution for debt at the Suit of a Common Person yet it was adjuged to otherwise in the Kings Case for that Thesaurus Regis est pacis vinculum Bellorum nervi for otherwise the King might want His Money or Treasure which is the Bond of Peace and Sinews of War Protections under the Great Seal of England have not only been granted by our Kings but allowed by their Judges to secure some Merchants Strangers from Arrests or Trouble in Corporibus rebus bonis in their Persons goods or Estates until the Debts and Money which they did owe the King should be satisfied and to suspend any Judgements or Executions had against them for other mens Debts until the King should be satisfied the monys due unto him And in the mean time taking them and their estate in their Royal Protection did prohibit any Process against them to be made in any of their Courts of Justice or that they should be Arrested or distrained for any debts or accompts the Kings debts not being satisfied And although by an Act of Parliament or Statute made in the 25 th year of the Raign of King Edward the third cap. 19. Their other Creditors might notwithstanding bring their Actions and Prosecute thereupon yet they were not by that Statute to have Execution upon any Judgements gained for their Debts unless they would undertake to pay the Debts due unto the King and then he should be authorized to sue for recover and take the Kings Debt and have Execution also for his own Debt the Preamble of that Statute mentioning that during such Protection no man had used or durst to implead such Debtors In the 8 th year of the Raign of King Henry the 6 th it was agreed in Parliament that all matters that touch the King should be preferred before all other as well in Parliament as in Council And no longer ago then in the 34 th and 35 th years of the Raign of King
380 Ordained that the Earls and Masters of Requests should be exempted from all other Publike charges and upon Complaints that in their Progress their Servants received or took too much of the People did Ordain that when the Emperours went in Progress sacros vultus inhiantibus fortè populis inferentes should bless the people with their Presence their Servants and Attendants nè quid accipiant Immodicum should not be unreasonable or Immoderate in it the right use of which Ancient Custome or manner of the Oblations or gratifications of Subjects Inhabiting in any great Town or City when our Kings of England passed by or thorough them being probably derived or come unto us from this or the like Laudable Observances of Rights and Dues to Majesty in return of Gratitudes to their Prince His Followers or Attendants for procuring or putting him in minde to come that way and give them the well-come opportunity of receiving new Graces or Favours or making acknowledgements for many formerly bestowed upon them by him or his Progenitors By a Rescript or Constitution of the Emperours Theodosius and Valentinianus about the year of our Lord 386 aeternâ lege as they there term it by a Law for ever or unalterable Omnes cubicularii All the Chamberlains or Bed-chamber-men Except some of greater Eminencie therein mentioned were to be freed from Pourveyance and Cart-taking à sordidis muneribus from all Publike and Inferior Offices not concerning the Immediate Service of the Prince and their Houses in the City from the Harbingers upon great Penalties unto such as should molest them therein and the reason thereof is therein given nè sordidis astricti muneribus decus ministerii quòd militando videbantur adepti otii tempore quietis amittant to the end that the Dignity and quality of their Places which they obtained by their Services should not be lost in the times of rest and quiet and Inter Cubiculares amongst those which attended the Royal-chambers sunt qui sacrae vesti deputati sunt those which belong to the Royal Robes primicerii sacri Cubiculi id est qui primum locum gradumque obtinent inter Cubicularios and the Primicerii or Chief of the Bed-chamber probably the Gentlemen of the Bed-chamber were comprehended amongst them The Emperour Leo about the year of our Lord 460 in a Rescript Johanni Comiti Magistro Officiorum the Great Master of His Houshold ordained that Cubicularios tam sacri Cubiculi sui quam venerabilis Augustae quos utrosque certum est obsequiis occupatos Aulae penetraliis inhaerentes diversa Judicia obire non posse ab observatione aliorum Tribunalium liberati essent their Chamberlains or Bed-chamber-men as also those of the Empress or Imployed in any of their Services and the affairs of the Court who could not attend divers Tribunals should be exempted from the Obedience of them ut in sublimitatis solummodò tuae Judicio propositas adversus se excipiunt actiones to the end that they might upon occasion be only summoned to his Honourable Tribunal and the like Priviledge saith Cuiacius was thereby also allowed unto those qui sacrae vesti deputati fuerunt which belonged to the Royal Wardrobe The Emperour Zeno about the year of our Lord 480 Decreed that the Senatours or other Honourable Persons should not be obliged to give Bail to any Action and illustre habent privilegium ut de eorum Criminibus nemo cognoscat inconsulto Principe That the Nobility should not be tryed in any Actions Criminal without the Licence of the Prince first obtained as is now done in England by the Kings especial Commission granted to a Lord or one of the Nobility to be as a Lord High-steward for such a Tryal or Purpose And a Servant to another once entertained in the Emperours Service being otherwise restrained became instantly a Freeman and might make his last Will and Testament and the reason given quod hoc privilegium videatur principale esse proprium Majestatis ut non Famulorum sicut privatae Conditionis homines sed liberorum honestis utatur obsequiis periniquum est eos duntaxat pati fortunae deterioris incommoda that it was a Principle or Property of Majesty that the Emperours Servants should be in a better Condition then the Servants of Private-men and it would be unjust that his Servants should be in as bad a Condition as those of the Common-people The Servants of the Emperours house did enjoy a Priviledge ut à solo principe vel ab eo cui is per sacros Apices injunxisset judicabantur that they should be Judged by the Prince himself or one Authorized by His Commission By a Law or Rescript of the aforesaid Emperour Zeno it was Ordained that nè ad diversa tracti viri devoti silentiarii judicia sacris abstrahi videantur obsequiis eos qui quemlibet devotissimorum silentiariorum Scholae Company or Regiment Civilitèr vel etiam Criminalitèr pulsare maluerint minimè eum ex cujuslibet alterius judicio nisi ex judicio tantummodo viri Excellentissimi Magistri Officiorum conveniri to the end none of the Emperours guards in the Palace and at the Court Gates then called Silentiarii probably from their care and watchfulness should be drawn or hindred from their Duty and Services that those which had any Action or Cause of Complaint against them either Civilly or Criminally should not compel them to come before any Judge whatsoever but the Lord Steward or Chamberlain of the Emperor's Houshold By the Salicque Laws or of the Francks the Ancestors of our Neighbors the French who then though now they find it not to be so thought themselves to be as free as their name signified made by Pharamond their first King toto caetu populi by the good liking of all that people assembled at Saltzburgh in Franconia in Germany in the year of our Redeemer 424. Qui in Jussione Regis fuerit occupatus he which was in the Kings Service by his Command and so are all the Kings Servants rationally intended to be manniri non potest was not to be cited or summoned to appear in any Court of Justice which other men were not to disobey under very great pecuniary Mulcts and was a Constitution so acceptable to the people as Charlemain long after in his Confirmation of that and the Laws of the Ribuarians and some other Nations declares them to be non ex sua adinventione sed Communi Consilio et prout cunctis placuit prudentioribus Regni not of his own Invention or framing but by Common assent or good liking of the most prudent and wise men of his Kingdome By the Laws of the Wisigoths from whence the Spaniards do so boast to have been descended as when they would signifie one most nobly descended they do usually say he is Ne de los Godos he is the Son of a Goth where it was
expresly provided that the Testimony of Servants should not be allowed in Criminal Matters there was an exception for the better sort of the Kings Servants King Ina who Raigned here over the West Saxons about the year of our Redeemer 712 amongst his Laws Suasu Heddae et Erkinwaldi Episcoporum suorum omnium Senatorum et natu majorum Sapientum populi sui in magna servorum dei frequentia by the advice of Hedda and Erkenwald his Bishops all his Senators Elders and wise men of his people and Commonalty attended by many of the Clergy did ordain several degrees of Mulct or punishment for breach of peace in Towns according to the qualities of the owners or Lords thereof videlicet in oppido Regis vel Episcopi pacis violatae paena 120 solidorum in oppido Senatoris seu Ealdormannes ruptae pacis 80 solidorum in oppido Cyninges Thegnes seu ministri Regis 60 solidorum et in oppido custodis pagant cujuscunque predia possidentis pacis tributae multa 35 solidorum censeatur that is to say In every Town of the King or a Bishop for breach of the peace 120 shillings in the Town of a Senator or Alderman 80 shillings in a Town of a Servant of the Kings 60 shillings and in the Town of the Bayliffe or Reeve of any other man having Lands 35 shillings Charles the great or Charlemain Emperor of the West and King of France who began his raign in the year 768 and after him the Emperor Lodovicus by his goodness and Piety sirnamed Pius or the Godly considering that in viros animosos plus honoris posse quam opum remunerationem that to men of Courage and Spirit Honor was more in esteem then Riches edicto mandaverunt ut ipsis in tota ditione sua honor haberetur did by their Edicts which in those more obedient times when Subjects were not so Critical as too many of us now are in their Princes Commands by a Torture of farre fetched or Irrational Interpretations put upon their just Authority in order to the Weal-Publick provide that in all their Dominions an Honour and respect should be given to their Domesticks or Servants And therefore Antiquity and the Learned Bignonius were not guilty of any Error when they adjudged that Dignitas Domestici the Dignity of the Kings Houshold Servants fuit non contemneâ—da was not to be contemned but was greatly honoured under the Raigns of the first and second Kings of France and about the Raign of Clodoveus or Lodovicus the 12th King of the first Race of the Kings of France who Raigned about the year of our Lord and Saviour 648. Inter praecipuos Regni ministros saepe enumerantur Comites Consiliarii Domestici et Majores Domûs c. Amongst the principal of whom were reckoned the Lord Steward Earls Counsellors of Estate Chancellor and Chamberlane the most Honourable and great men of the Kingdome who did sometimes in the Court attend the King in the hearing and determining of Causes and were with those great Officers of the Houshold accounted to be de Honestate palatii seu specialiter ornamento Regali a part of the Honor of the Kings Palace or Court and an Ornament to the Royal Dignity and the Domesticks and Servants of that great and vertuous Charlemain had that respect given unto them which a just consideration of the Honor of their Soveraign and concernment of the Weal-publique in his business or affairs had procured for them as Solebant subditi non modo reâ—ipere missos et legatos Principis Comites Duces et etiam ministros verum et viaticum eis pro unius cujusque dignitate praestare the people did use not only to receive the Kings or Princes Earls Dukes and their Attendants but to give them Entertainment according to their several degrees or qualities it having been ordained by him ut de missis suis vel de caeteris propter utilitatem suam Iter agentibus nullus mansionem eis contradicere praesumat that no man should presume to deny lodging and entertainment unto any imployed in his service King Alfred or Alured who began his Raign here about the year of our Lord 870 and had resident in his house the Sonns of many of his Nobility which did attend him did in that time of the more incult and fierce behaviour of the old English and Saxons and their Neighborhood with their Enemies the usurping Danes take care in the League or peace which he was constrained to make with King Guthrun the Dane to provide that in case of a Minister Regis incusatus as the Version or Translation renders it any Servant of the Kings accused for Homicide Et id Juris in omni lite and the same Law to be in every other Action or Suit there should be a Jury of 12 of the Kings Servants or if the party grieved should be the Servant of another King non nihil inferior not much inferior to the Kings probably intended of King Guthruns it should be tryed by undecim sui equales unumque Ministrum Regium by eleven of his Peers or Equals and one of the Kings Servants added unto them And it was then accompted such an honor to serve the King as our Learned Selden informs us he that that had a House with a Bell a Porters Lodge and was fit to be sent on his Princes Message or had a distinct Office in the Kings Court was accompted in those early daies as a Thainus or Nobilis a person or Honor. King Edward the Confessor whose Laws the vanquished English after the Conquest took to be so much a blessing as they hid them for preservation under the high Altar at Westminster and by the importunity of their prayers and tears procured King William the Conqueror to confirm and restore them did ordain that the Earls and Barons Et omnes qui habuerint sacham et socam Theam et Infangthiefe etiam milites suos et proprios servientes scilicet dapiferos pincernas Camerarios pistores et Cocos sub suo friburgo habeant et si cui foris facerent et Clamor vicinorum de eis assurgeret ipsi tenerent eos rectitudini in Curia sua And all those who had Courts Leete or Baron amongst their Tenants a priviledge granted by the King to have a Jurisdiction over their Tenants and to fine or Amerce such as failed to make good their Actions try and punish Theeves taken in their Mannors or Liberties to have Villains and Bond-men and a propriety in their Villains Lands or Goods and to have subject to their Mannors those that held of them by Knight-Service or were to attend them in the Warrs and their Domestique Servants as Sewers Butlers Chamberlains Bakers and Cooks should upon any wrong done to their Neighbors or Complaint made of them see right to be done unto them in their Courts and certainly he that gave them those Liberties to hear and determine
Complaints against any of their Menials and Servants cannot rationally be supposed to be willing or intend to abridge himself of the like William the Conqueror in his Law entituled de hominum Regis privilegio of the priviledge belonging to his Tenants ordained That si qui male fecerint hominibus illius Ballivae et de hoc sit attinctus per Justitiam Regis which for a great part thereof was then administred in his House or Palace foris factura sit dupla illius quam alius quispiam foris fecerit That if any one should do wrong unto them and be thereof Convict by the Kings Justice the forfeiture of the Offender should be double to what should be paid upon the like offence unto any other who being afterwards known by the name of Tenants in antient Demeasne were so exempt from being retorned as Jury men either at Assizes or Sessions as where they were so retorned in the 26 year of the Raign of King Edward the first they did recover every man forty shillings damage against the Bayliffe that retorned them Et Domus Regis and the House of the King saith King Henry the first in his Laws is where he is Resident Cujuscunque feudum vel Mansio sit whose ever the Land or the House be and that wise King who for his wisdome had the Character or name of Beauclerk as an Affix to his Royal Title did not then take it to be derogatory to the beloved Laws of Edward the Confessor or his grand design of pleasing a lately discontended and subdued people or setling the English Crown unjustly detained from his elder Brother Robert upon himself and his posterity to allow the Exchequer Priviledges quód de Scaccario residentes Clerici et omnes alii ministri ibidem ministrantes sive enim de Clero sint sive Regia Curia assident ex mandato ad alias quaslibet causas extra scaccarium sub quibuscunque Judicibus non evocenter That the Officers of the Exchequer which was then kept in the Kings House or Palace and many of them and the Clerks thereof as Sir Henry Spelman saith his menial and domestick Servants Clerks and all other the Ministers there whether belonging to the Clergy or the Kings Court or which do sit there by his Command shall not be cited or compelled to appear for any causes whatsoever out of the Exchequer or before any Judges or Judge Etquod iidem de Communibus Assises sect Comitat. hundred et Cur. quibuscunque tam de et pro dominiis suis quam de et pro feodis suis Ac etiam de Murdris scutagiis vigiliis et Danegeld And that they should be freed and exempted from common Assizes suit of County Courts hundred Courts or any Courts whatsoever as well for or concerning their Demesn Lands as for their Fees or Lands which they held of others which would otherwise after two years have made a forfeiture and could not have been dispensed withal Murders Escuage Watch and ward and Danegeld publique Taxes which were not but by special favour to have been acquitted Et quod Barones et qui ad Scaccarium resident de quibuscunque provision seu provisoribus et aliis solutionibus nomine consuetudinis pro quibuscunque victual suae domus in quibuscunque urbibus Castellis et locis Maritimis empt Ac de solutione Theoloniae sive Toluet liberi et quieti esse debent and that the Barons and those which reside in the Exchequer should not be charged with the payment of Toll in any City or place Et quod non debent implacitari alibi quam in Scaccario quamdiu idem Scaccarium fuerit apertum and that they should not be impleaded any where but in the Exchequer when it shall be open which is not only all the Term times but eight daies before every Term. Si vero judex sub quo litigant sine sit Ecclesiasticus sive forensis legis hujus ignarus ab jam dicta die convocationis ad Scaccarium citaverit quemlibet eorum et absentem forte per sententiam possessione sua vel quonius Jure spolaverit authoritate principis et ratione sessionis revocabitur in eum statum causa ipsius in quo erat ante citationem But if the Judge whether Ecclesiastical or of the Common Law being ignorant of the opening of the Exchequer should cite any of them and in their absence give sentence against him and take away from any of them any of their Rights or Possessions by vertue of the Kings Authority and their sitting the Cause or sentence shall be forthwith revoked and reduced into the State it was before the Citation And were so greatly favoured and taken care of as si quilibet etiam magnus in regno in consulto animi calore conviciis lascesserit If any great man of the Kingdome should rashly or in anger revile any of them he was to pay a fine for it or if any other should reproach or doe them any wrong they should be punished and when that King had been ill advised and perswaded to charge the Lands of the Barons of the Exchequer with the payment of Taxes in regard that they as was by some envious persons then alleag'd did receive Salaries and Wages or Liveries or diet at the Court for their sitting and that some of them pro officio suo fundos habent et fructus eorum hinc ergo gravis jactura fisco provenit having Lands and Revenues given them also for it which was a great loss to the Kings Treasury or Exchequer But the King afterward experimenting that evil Counsel and growing weary of it et nil ducens Jacturam modici aeris respectu magni honoris and not valuing the loss of a little mony so much as the loss of a great Honour ordained that Jure perpetuo by a constant Law and decree they should as formerly be free from Taxes and in his Laws for the good of the Kingdome declaring his Kingly Rights and Prerogative which he solus et super omnes homines habet in terra sua as King of England had and was to enjoy and above all men in his Kingdome commodo pacis et securitatis institutione retenta reserving a fit provision for the publique peace and security did amongst many of his Royal Prerogatives mention de famulis suis ubicunque occisis vel Injuriatis the punishment of such as any where should slay or injure any of his Houshold Servants in any place whatsoever Et qui in Domo vel familia regis pugnabit such as should fight in the Kings House And limiting the extent of the Jurisdiction of the Marshall of his Houshold declared it in these words nam longe debet esse pax Regis a porta sua ubi residens erit the peace of the King ought to extend a great way from the gate of his House where he shall be resident not much unlike that of the 12 miles circuit of the Verge
Palace the Court of Justice therein kept being called Capitalis Curia Domini Regis the Kings chief Court where those Justices or Judges then sate and where the great Assize or Writs of Assize in pleas of Land happily succeeding in the place of the turbulent fierce and over-powring way of duels or waging of battels for the determination of pretended Rights were tryed Juries impanelled and a Fine passed and Recorded before the Bishops of Ely and Norwich and Ralph de Glanvile our Learned Author Justitiis Domini Regis et aliis fidelibus et familiaribus Domini Regis ibi tunc presentibus the Kings Justices and other of his Subjects and Houshold Assizes of novel desseisin and prohibitions to Ecclesiastical Courts awarded And was so unlikely to permit any Breach of his Servants just priviledges as he did about the 24th year of his Raign not only confirm all his Exchequer Servants Dignities and priviledges used and allowed in the Raign of King Henry the first his Grandfather but although Warrs and many great troubles assaulted him did when he laid an Escuage of a Mark upon every Knights Fee whereby to pay his hired Soldiers not at all charge his Exchequer Servants for that as the black Book of Exchequer that antient Remembrancer of the Exchequer priviledges informs us Mavult enim Princeps stipendiarios quam Domesticos Bellicis apponere casibus for the King had rather expose his hired men of Warre to the inconveniences thereof then his Domestique or Houshold Servants and being as willing as his Grandfather to free them from being cited or troubled before his delegated or Commissionated Courts of Justice or Tribunals would in all probability be more unwilling that those which more neerly and constantly attended upon his person health or safety should by any suits of Law be as to their persons or estates molested or diverted from it nor could there be howsoever any danger of arresting the Kings Servants in ordinary without leave or Licence first obtained in the after-Raigns of King Richard the first and King John when Hubert Walter Archbishop of Canterbury and Chancellor of England in the 6th year of the Raign of King John was likewise Lord Chief Justice of England And the now chief Courts of the Kingdome as the Chancery Kings-Bench Common-Pleas and Exchequer were radically and essentially in the King and in the distribution of Justice of the said Kings and their Royal Predecessors resided in their Council and great Officers in their Courts attending upon their Persons For many of the Suits and Actions at the Common Law and even those of the Court of Common Pleas untill the ninth year of the Reign of King Henry the third when it was by Act of Parliament forbidden to follow the Kings Court but to be held in loco certo a place certain in regard that the King and his Court were unwilling any more to be troubled with the Common Pleas or Actions betwixt private persons which were not the Kings Servants were there prosecuted And untill those times it cannot be less then a great probability that all the Trades-mens debts which were demanded of Courtiers and the Kings Servants were without Arrests or Imprisonments to be prosecuted and determined in the Court before the Steward and the Chamberlain of the Kings House and that the King who was so willing was so willing to ease his Subjects in their Common Pleas or Actions by freeing them from so chargeable an attendance which the prosecution of them would commonly if not necessarily require did not thereby intend that they should have a Liberty without leave or Licence first obtained to molest any of his Servants in ordinary in their Duty or Attendance upon his Royal person and Affairs by prosecuting Arresting imprisoning or compelling to appear before other Judges or Tribunals any of his Servants in ordinary Who in those times may well be thought to enjoy a freedom from Arrests or Imprisonment of their Bodies untill leave or Licence first obtained when Hugo de Patishul Treasurer unto King Henry the third in the nineteenth year of his Raign Philip Lovel in the 34th year of the Raign of that King and John Mansel Keeper of the great Seal of England in the 40th year of that Kings Raign were whilst they held their several other places successively Lord Chief Justices of England When the Court of Chancery being in the absence of Parliaments next under our Kings the Supreme Court for the order and distribution of Justice the Court of the Kings Bench appointed to hear and determine Criminal matters Actions of Trespass and Pleas of the Crown and the Court of Exchequer matters and Causes touching the King's Revenue were so much after the 9th year of the Raign of King Henry the third and the dispensing with the Court of Common Pleas from following the person of our Kings to their several Houses or Palaces or as their Affairs invited them to be sometimes Itinerant or resident in several other parts of the Kingdom did follow the King and were kept in their Houses or Palaces notwithstanding that when like the Sun in his Circuit distributing their Rayes and Comforts to all the parts of the Kingdome by turns they were according to their occasion of busines sometimes at York or Carlile in the North and at other times for their pleasures or divertisements kept their Courts or festivals at Glocester or Nottingham and their Parliaments sometimes at Marlebridge in Wiltshire or Ruthland in Wales or at Glocester or Lincoln For it may be evidenced by the Retorn or days given in Writs and antient Fines levied before the Justices of the Court of Common Pleas at Westminster after the allowance or favour given to that Court not to be ambulatory and to the people not to be at so great trouble or charges as would be required to follow the King and his Court in a throng of Followers and other business for the obtaining of Justice in their suits or Actions as well small or often emerging as great and seldome happening the days of old also affirming it that the Kings Palace at Westminster in the great Hall where the Court of Common Pleas hath ever since dwelt some places thereunto adjoyning retaining at this day the Name of the Old Palace did not cease to be the Palace or Mansion House of our Kings of England untill that King Henry the 8th by the fall of the pompous Cardinal Woolsey the building of St. Jame's House and inclosing the now Park thereof with a brick wall made White-Hall to be his House or Palace but kept the name as well as business of the Palace or Mansion House of our Kings of England And the Courts of Chancery King's Bench and Exchequer did after the fixation of the Common Pleas or Actions of the people to a certain place in the Kings Palace at Westminster being then his more settled and constant habitation and Residence for his not a few
Bracton will not allow the priviledge where it is ex voluntaria causa when the party that would excuse his absence was voluntarily absent and not in the Kings service or will of his own accord without the Kings command go along with his Army yet he cannot but say that talibus non subvenit dominus nisi de gratia unto such the King would not be aiding unless he should be otherwise gratiously pleased to do it By an Act of Parliament made in the 52 year of the Raign of our King Henry the third all Archbishops Bishops Abbots Priors Earls Barons and religious men and women except that their appearance be specially required for some other Causes are excused from appearing at the Sheriffs Turn Sir Edward Cook extending it to the Courts Leete and view of Franck-pledge which with the Sheriffs Turns were instituted for the Conservation of the Kings peace punishment of Nusances and where all men within the Jurisdiction of it might be summoned to take the Oath of Allegiance By an Act of Parliament made in the third year of the Raign of King Edward the first providing a remedy where an Officer of the Kings which by common intendment were then understood to be the Sheriffs Escheators or Bayliffs of the King not his menial Servants doth disseise any It is in that only case left to the Election of the Disseisee or party disseised whether that the King by office shall cause it to be amended which the parties grieved were more likely to choose when besides their just satisfaction they might be a means to punish or affright the Kings Officers so offending with the losse of their gainful as well as not smally reputed Offices or places at his complaint or that he will sue at the Common Law by writ of novel disseisin And by another act of parliament made in the same year enjoyning severe penalties against the Kings Purveyors not paying for what they take and of such as take part of the Kings debts or other rewards of the Kings Creditors to make payment of the same debts and of such as take Horses and Carts more than need a trick wherein Tacitus saith the Roman Cart-takers whilst the Romans governed here were wont to abuse the old Britains and take rewards to dismisse them it was provided that if any of Court so do he shall be grievously punished by the Marshalls and if it be done out of the Court or by one that is not of the Court and be thereof attainted he shall pay treble damages and shall remain in the Kings prison forty dayes by which it is evident that the intention of that Act of Parliament was not to deliver any of the Purveyors the Kings Servants in ordinary to any other Tribunals than that of the Marshals or other the Officers of his Houshold Britton who like the Emperor Justinians Tribonianus in compiling or putting together the pieces of the Civil Laws did by Command of that wise and Valiant Prince King Edward the first in the fifth year of his Raign write his book in the name of that King concerning divers Pleas Process and proceedings in the Kings Courts saith in the Person of that King and French of those times Countes et Barons Dedans nostre verge the Kings Palace or 12 miles round about trovesnequedent estre destreint that Earls Barons found within the virge should not be attached or distrained as ordinary men which were Debtors Et nos Serjeans or Servants de nostre hostel soient avant summons pour dette que destreyntz et attaches par leur cors les uns pour reverence de lour persones et les Autres pour reverence de nostre service of our House shall be summoned for debt before they be destreyned or Attached by their bodies the one in reverence and respect to their persons and the other in reverence to our Service By an Act of Parliament made by that prudent Prince about that time entituled Prohibitio formata de Statuto Articuli Cleri where a prohibition was framed against certain matters which concerned the Clergy and the limitting of their Jurisdiction It was declared thaâ— Proceres et magnates et alii de eodem regno temporibus Regis predecessorâ—m Regum Angliae seu Regis Authoritate alicujus non consueuerunt contra consuetudinem illam super hujusmodi rebus i. e. matters Civil or Temporal except matters of Testaments or Matrimony in causa trahi vel compelli ad comparendum coram quocunquè Judice Ecclesiastico the Noble men and others of the Kingdome in the times of the Kings Predecessors or by Authority of any of the Kings did not use contrary to the said custome in such cases to be compelled to appear before any Ecclesiastical Judg whatsoever In the 18th year of his Raign in an Action brought at the Kings Suit in Banco Regis in the Kings Bench against Robert the Son of William de Glanville and Reginald the Clark of the said William de Glanville for delivering at Norwich a panel and certain of the Kings Writs which the Kings Coroner ought to have Brought the said Reginald demurring for that Dominus Rex motu proprio de hujusmodi Imiuriis privatis personis illatis sectam habere non debet ex quo aliena actio sibi competere non potest unde petit Judicium et si hoc non sufficiat dicet aliud et si actio in hujusmodi caesu Domino Regi posset competere dicit quod hoc deberet esse per breve originale et non de judicio unde petit Judicium the King was not to bring an Action for injuries done to private persons and is not concerned in another mans suit and demanded the judgment of the Court. And if that Plea will not be sufficient will plead somewhat else And if such an Action did belong to the King it ought to have been by Writ Original and not by a Writ Judicial whereof he pray'd the Judgment of the Court but Johannes de Bosco who followed for the King dicit quod quelibet injuria ministris Regiis licet minimis illata vertitur in dedecus ipsius Regis Et licèt hujusmodi minister Justitiam assequi de injur sibi illat contempsit tamen cum hujusmodi Injuria ministris Regis illata ipsi Regi fuit ostensa competit sibi actio ad amend consequend de contemptu pleaded that every wrong or injury done to the Kings Servants though it be unto the least is a disparagement to the King And if such a Servant will not take care to prosecute such an injury yet when the King shall be informed thereof he is concerned to punish the Contempt and vouched a late President for it in a Case betwixt Robert of Benhale and Robert Baygnar and others in a Writ of wast and prayed Judgment for the King In the same year John de Waleis complaining against Bogo de Clare for that some of
his Servants when he came to the House of the said Bogo in London and serued him with a Citation in the name of the Archbishop of Canterbury enforced him to eat the Seal and Citation and the said Bogo de Clare pleading that he ought not to answer because it was not alledged that he was the doer thereof nor that his Servants did it by his Command nor were they named it was in that Record and pleading adjudged that although the Fact was committed by the Servants of the said Bogo yet quia Dominus Rex pred Transgressionem sic enormiter factam ut dicitur tum propter contemptum Sanctae ecclesie tum propter contemptum ipsi domino Regi in presentia sua videlicet infra virgam et in Parliamento suo factum propter malum exemplum temporibus futuris tum propter audaciam delinquendi sic de cetero aliis reprimendam permittere non vult impunitam in regard that the King would not suffer so foul an offence not only in contempt of the Church and of the King in his presence that is to say within the virge and in time of Parliament but for the boldness of the offence and the evil example in time to come to pass unpunished the said Bogo de Clare should answer the Fact at the Kings suit for that the offence was committed infra portam suam et per manupastos et familiares suos within the house of the said Bogo and by his Houshold Servants some of whom being named the said Bogo was commanded to bring them before the King and his Councel to abide by what should be ordered and decreed against them By the Statute or Act of Parlimaent made in the 28th year of that Kings Raign the King and Parliament may be understood not to intend that the Kings Purveyors or Servants of that nature should be tryed or punished for divers offences therein mentioned before other Tribunals than that of the great Officers of his Houshold and therefore ordained that for those Offences they should only be tryed and punished by the Steward and Treasurer of the Kings Houshold nor when by an Act of Parliament made in the same year and Parliament of what matters the Steward and Marshall of the Kings Houshold should hold Plea their Jurisdictions were confined to Trespasses only done within the Kings House and of other Trespasses done within the Virge and of Contracts and Covenants made by one of the House with another of the same House and in the same House and none other where And whereas before that time the Coroners of the Counties were not authorized to inquire of Felonies done within the Virge but the Coroners of the Kings House which never continueth in one place whereby the Felonies could not be put in exigent nor Tryal had in due manner It was ordained that in case of the death of men it should be commanded to the Coroner of the County that he with the Coroners of the Kings House should do as belongeth to his Office and enroll it and that the things which cannot be determined before the Steward of the Kings House where the Felons cannot be Attached or for other like cause should be remitted to the Common Law the King and Parliament can be rightly supposed thereby to intend that the Kings Domestiques or Houshold Servants should for Controversies amongst themselves of the nature before recited be compelled to attend or be subject to any other Jurisdiction when a Coroner of the Kings House was long before appointed to prevent it and it appeareth by that Act of Parliament it self that the matters therein mentioned were not to be remitted to the Common Law but where they could not be determined before the Steward of the Kings House The care and provision of which Act of Parliament to keep the cognisance of the Causes and Actions therein mentioned within the Jurisdiction of the Steward and Treasurer of the Kings House did neither abrogate any of the former Rights and Liberties of the King or his Servants nor by any reasonable construction or interpretation can be understood either to abolish and take them away or to intend to give a liberty to Arrest without licence any of the Kiags Servants in ordinary And an Act of Parliament being made in the same year that Common Pleas or Actions should not be holden in the Exchequer which was then kept in his Palace did by a Writ under the great seal of England directed unto the Treasurer and Barons of the Exchequer reciting that secundùm legem et consuetudines Regni according to the Law and customes of the Kingdom Common Pleas ought not there to be pleaded doth specially except nisi placita illa nos vel aliquem ministrorum nostrorum scaccarii specialiter tangant such Actions as did not especially concern him or any of his Ministers or Servants belonging unto his Exchequer and commanded an Action of debt for five pounds brought against one of thc Exchequer to be superseded and no further prosecuted and that the said Treasurer and Barons should on the Kings behalf declare to the Plaintiffe quod breve nostrum de debito sibi impetret si sibi viderit expedire that he should if he thought it expedient sue forth the Kings writ for the debt aforesaid which can import no less then a license preceding the obtaining of it and untill such Actions were to the large and very great benefit of the Subjects in a cheap and ordinary course to be obtained which in the morning and infancy of our common and municipal Laws were wont to be petitioned for and be not a little costly dilatory and troublesome as they which have made use of a friend to the King or a Master of Requests or Secretary of State may easily be perswaded to believe amounted to a greater trouble delay and expense of the Plaintiffs than now they are put unto to get leave of the Lord Chamberlain of the Kings House to Arrest any of the Kings Servants and that prudent Prince did certainly by that Act of Parliament touching the Exchequer not holding Common Pleas as little intend as did his Father King Henry the third by that Act that Common Pleas should not follow his Court that his Servants in ordinary should without leave or licence first obteyned be constreyned to neglect their Service and attendance and appear before other Tribunals For there is an antient Writ saith Sir Edward Coke to be found in the Register of Writs called de non residentia Clerici Regis of the non-residence of the Kings Clerk or Chaplain or attending in some Office in the Chancery directed to the Bishop of the Diocess in these words Cum Clerici nostri ad faciend in beneficiis suis residentiam personalem which was for the cure of Souls being the highest concernment and greater then that of appearing to an Action of debt or other Action dum in nostris immorantur obsequii◠compelli aut alià s
extensive power of the chief Justice of England then so stiled to the placita only coram Domino Rege tenenda assignata as the Letters Patents or Commissions of the other Judges of the Court of Kings Bench are to this day to such matters as properly concerned Criminal matters the Crown and Dignity thereof and the peace of the Kingdome the Court of Common Pleas at Westminster being the only true and proper Jurisdiction Commissionated to hear the Common-Pleas and Actions for Lands and reall and personal Estate or Civill matters concerning and between Subjects one with another where the contracts or matters complained were not made or done in the Kings House or Palace or Virge thereof by the Kings Servants within the same House to be heard and determined coram Rege ubicunque fuerit in Angliâ before the King wheresoever he should be in England And there was so much care taken by King Edward the second and his Councill of such as were in his Service or imployed in his Affairs as when in the ninth year of his Raign It was enquired or debated in Parliament in what case the Kings Letters should be sent to discharge an Excommunicate person the King decreed as the words of that Law or Act of Parliament do witnesse that hereafter no such Letters should be suffered to go forth but in case where it is found that the Kings Liberty is prejudiced by the Excommunications which in those times were the fulmina or most terrilbe Thunderbolts and Terrors of the English Clergy And it being in the same Parliament complained of that the Barons of the Exchequer claiming by their priviledge that they ought to make answer unto no Complaynant out of the same place did extend their priviledge unto Clerks abiding there called unto orders or unto residence and inhibit ordinaries that by no means or for any cause so long as they be in the Exchequer or in the Kings Service they should not call them to accompt the answer was made by the King it pleaseth our Lord the King that such Clerks as attend in his Service if they offend shall be correct by their Ordinaries which was a protection and priviledge as greatly contenting them as the Kings protection or any priviledge of that nature Like as other but so long as they are occupied about the Exchequer they shall not be bound to keep residence in their Churches With this Addition saith the transcriber of that Act of Parliament of new by the Kings Councill which if understood of the Kings Privy Councill was without doubt ratified and approved by the Parliament that greater Council viz. The King and his Ancestors time out of mind have used that Clerks imployed in his service during such time as they are in service shall not be compelled to keep residence in their Benefices And such things as be thought necessary for the King and the Common-wealth ought not to be prejudicial to the liberty of the Church where we have in and by a Parliament which was alwaies intended as it ought to be a collected wisdome and care of the Nation a clear exposition of those words of Bracton quòd servitium domini Regis nulli debet esse damnosum nec debet esse tenenti and of Fleta nulli debet esse damnosum nec injuriosum the service of the King or any thing done in consequence thereof ought not to be esteemed a wrong or Injury to the Subjects The like priviledge for many Nations doe in their Laws and Constitutions not seldome follow the light of reason in the observation of Neighbours good Examples having not above six years before been allowed by Philip surnamed the fair King of France to the Chaplains and Clerks of the Kings and Queens of France Fleta who as our great and excellently learned Selden saith was an Anonymus or Author without a name but a Lawyer and as is by some supposed to have been at the time of the writing of his book a Prisoner in the Fleet and therefore gave it the name of Fleta by the mention of certain Statutes made in the 13th year of the Raign of King Edward the first as also of the Statutes made at Winchester and Westminster and a record in the 17th year of the Raign of that King is beleeved to have written his book in the latter end of the Raign of King Edward the second or the beginning of the Raign of King Edward the third saith that by a Statute made at Glocester in the sixth year of the Raign of King Edward the first if a Defendant were essoyned of the Kings service and do not bring his warrant at the day given him by his Essoyne he shall recompence the Plaintiffe for his Journy 20 s. or more after the discretion of the Justices and shall be grievously amerced to the King which alloweth that if the Kings warrant be brought that the Defendant is in the Kings Service that Statute not mentioning whether in ordinary or Domestique Service or extraordinary such a Warrant should be received and held good the rule of Law being that exceptio firmat regulam in casibus non exceptis Cases not excepted are alwaies within the protection and meaning of that Law which doth not except them and declares it to be then the Law that a man may be excused in a Court of Justice quod Clameum non apposuerit per servitium Regis quod nulli debet esse damnosum dum tamen docuerit quod venire non potuit ut si occupatus fuit per Custodiam Castri vel alio modo in servitio suo detentus et impeditus that he did not enter his Claim to land within a year and a day by reason of the Kings service which ought not to be prejudicial to any body so as he doe make it appear that he could not come as if he were imployed in the Custody of a Castle or any other way hindered by the Kings Service In the Chapter or discourse de Exceptionibus coram senescallo Marescallo Regis of the Exceptions of a Defendant to be used or taken in an Action brought or commenced before the Steward or Marshall of the King hath these words Item dicere poterit quod non est obligatus ad districtionem senescalli likewise he may say that he is not obliged or bound to obey the process or command of the Steward in the Bond taken for the payment of the money by a Clause inserted which was then not unusual as it appears by his next precedent Chapter that the Debtor should be obliged upon non-payment to appear or have the Action or matter determined before the Kings Steward or Marshall and etsi non obligetur ad districtionem senescalli hoc sibi prodesse non debet though he be not obliged specially in the Bond or obligation to the process or power of the Steward that will not availe the Defendant eò quod est de hospitio Regis et in
servitio suo continuo et quo casu respondebit vel indefensus remanebit et pro convicto habebitur quia per servitium Regis essoniari poterit alibi ubique in infinitum for that he is of the Kings Houshold and continually in his service and in that case must answer or not defending himself will be convicted when as he might otherwise in any other Court or Place have Essoined or excused himself as often as he pleased et servitium Regis nulli debet esse damnosum nec injuriosum being the very words of Bracton beforementioned and the Kings Service ought not to be a wrong or damage unto any And is notwithstanding of opinion that a defendant may be by his Essoin excused ex causâ necessariâ et utili aut causâ reipublicae for a necessary cause or occasion and where the good of the Commonwealth is concerned as surely it must be understood not to be in the safety well being and daily attendance upon the Person of the King as much or very neer the instance or case by him there put Si eat cum Rege in exercitu if he go in the Army with the King as all King Davids Servants did when he marched against his rebellious Son Absolom and as most or very many of the Servants of Kings and Princes do use to be ad patriae defensionem cùm ad hoc teneatur vel per praeceptum Regis when he goeth with the King to War for the defence of his Countrey being obleiged thereunto by the Tenure of his Lands or the Kings Commandement And having said that Pleas of Debt do belong unto the Court of Common Pleas concludes Sunt tamen causae speciales quae alibi terminantur ex permissione Principis per querelam coram senescallo Aulae ut in Scaccario cum causa fuerit Regi necessaria videlicet ne Ministri sui de Scaccario ab obsequio suo continuo quicquam impediantur There are notwithstanding some Causes which by the leave or good pleasure of the Prince are by Plaint to be determined before the Steward of the Houshold as also in the Exchequer when it shall concern the King that his Officers or Servants be not in their Business hindred So as then and for some time after it was not likely that any Inroads should be made upon that just and rational Priviledge of the Kings Servants For howsoever that even in those more frugal and thrifty days some of the Kings Menial and Houshold Servants might not then be so beforehand as it is now termed or so far from being indebted but that some Moneys or Debts might be demanded of them or there might be some occasion of Complaints or Actions to be brought against them Yet there appears not any probability or foundation for it that the Liberties and Priviledges of the Kings Servants were for many years after the twenty eighth year of the Reign of King Edward the First which limited all Actions before the Steward and Marshal of the Kings House to such Contracts and Actions only as were or should be made betwixt one of the Kings Servants with any other of his Servants disturbed or unsecured or that the Kings Servants were for many years after molested or troubled with the severe and disgraceful way of Imprisonments now used when the Chancellors and the Justices of the Kings Bench were by an Act of Parliament in the same year enjoyned to attend the King and his Court and to be there à latere tanquam famulantes always neer him and as Domestiques saith the Learned Sir Henry Spelman so that as the words of that Statute are the King might have at all times neer unto him some that be learned in the Laws which be able duely to order all such matters as shall come unto the Court at all times when need shall require Which the Chancellor and in all lâ—kelihood the Chief Justice did not neglect for saith Sir Henry Spelman Such Causes as nulli constitutorum Tribunalium rite competerent ad Palatium seu oraculum Regni were not limited to the determination or judgment of other Tribunals came to the Kings Palace as to the Oracle of the Kingdom and yet then the King was not without his more than one Attorneys or Procurators who were men learned in the Law And King Edward the third was so unwilling that his Servants should be drawn before other Tribunals as by a Statute made in the fifth year of his Reign where it was ordained That in Inquests to be taken in the Kings House before the Steward and Marshal that they should be taken by men of the County thereabouts to avoid it may be partiality and not by men of the Kings House there is an Exception of Contracts Covenants and Trespasses made by men of the Kings House of the one part and the other and that in the same House And the Chancellors of England were in former times so or for the most part Resident in the Kings Court and accounted as a part of his Family as until the making of the Act of Parliament in the 36 year of the Reign of King Edward the Third which did restrain the Pourveyance to the Kings and Queens Houses only and did forbid it to be made for other Lords and Ladies of the Realm the King did use to send his Writs to the Sheriffs of the Counties where they had occasion to make any Pourveyance for the Chancellor his Officers and Clerks some whereof as their Clerici de primâ formâ now called the Masters of Cbancery were ad Robas had and yet have an yearly allowance for their Robes or Liveries commanding them to be assistant to their Pourveyors the Chancery Clerks being in the 18th year of that Kings Reign so accompted to be a part of his Servants and Family as a Complaint or Petition being exhibited in Parliament by all the Clerks of the Chancery That whereas the Chancellors and Keepers of the Great Seal of England ought to have cognisance of all Pleas and Trespasses done unto or by any of the Clerks of the Chancery Thomas de Kislingbury Draper of London had forged the best word they would then bestow upon a Writ or Action not commenced as it ought to be by Original Writ issuing out of the Chancery a Bill of Trespass against Gilbert de Chishull one of the Clerks of the Chancery whereby to take away from the King and his Chancellor the Cognisance of the said Action which belonged unto them contre Common Ley de la Terre against the Common Law of the Land did by a Serjeant of the Mace in London arrest and imprison him in the House of John de Aylesham one of the Sheriffs of London and although the King sent a Supersedeas commanding the Plaintiff to surcease his prosecution there and that he prosecute the said Gilbert de Chyshull in Chancery if he have any cause of Action against him the Sheriffs of London
against the Legality of this Court in the Reigns of King Henry the seventh Henry the eighth Edward the sixth Queen Mary and Queen Elizabeth or since although Sir Edward Coke being unwilling to allow it to be a Court legally constituted as not founded by any Prescription or Act of Parliament hath thrown it under some scruples or objections with which the former Ages and Wisemen of this Nation thought not fit to trouble their Times and Studies that Court being not only sometimes imployed in the determining of Cases and Controversies irremedial in the delegated Courts of Justice out of the Palace Royal or by the Privy Council but concerning the Kings Domesticks or Servants in Ordinary as may be seen in the 33 year of the Reign of K. Henry the eighth in the Case of David Sissel of Witham in the County of Lincoln Plaintiff against Richard Sissel his Brother Yeoman of the Kings Robes for certain Lands lying in Stamford in the said County of Lincoln formerly dismissed by the Kings most Honourable Privy Council wherein the said David Sissel was enjoyned upon pain of Imprisonment to forbear any clamour further to be made to the Kings Grace touching the Premises In the second and third years of King Philip and Queen Mary Sir John Browne Knight one of the two Principal Secretaries to the King and Queens Majesties was a Plaintiff in that Court and in the thirteenth year of the Reign of Queen Elizabeth Sir James Crofts Knight Comptroller of the Queens Majesties Houshold against Alexander Scoffeild for Writings and Evidences in the Defendants Custody And those great assistants Lords and Bishops Commissionated by the King as his Council or Commissioners did sometimes in that Court as in the thirtieth year of the Reign of King Henry the eighth superintend some Causes appealed aswell from the Lord Privy Seal as the Common Law and Sir John Russel Knight Lord Russel the same man or his Father being in an Act of Parliament in the thirteenth year of the Reign of King Edward the Fourth wherein he with the Archbishop of Canterbury and others were made Feoffees of certain Lands to the use and for performance of the Kings last Will and Testament stiled Master John Russel his Majesties Keeper of the Privy Seal was in that Court made a Defendant in the first year of the Reign of King Edward the sixth to a Suit Petition or Bill there depending against him although he was at that time also that Great and Ancient Officer of State called the Lord Privy Seal there having been a Custos Privati Sigilli a Keeper of the Privy Seal as early as the later end of King Edward the first or King Edward the second or the beginning of the Reign of King Edward the third about which time Fleta wrote nor was it then mentioned as any Novelty or new Office the Lord Privy Seal or Keepers of the Kings Privy Seal having ever since the eighteenth year of the Reign of King Henry the seventh if not long before until that fatal Rebellion in the later end of the Reign of that incomparable and pious Prince King Charles the Martyr successively presided and been Chief Judges in that Court which was not understood to be illegal in the twentieth year of the Reign of Queen Elizabeth when in a Case wherein George Ashby Esq was Complainant against William Rolfe Defendant an Injunction being awarded against the Defendant not to prosecute or proceed any further at the Common Law and disobeyed by the procurement of the said William Rolfe it was ordered That Francis Whitney Esq Serjeant at Arms should apprehend and arrest all and every person which should be found to prosecute the said Defendant contrary to the said Injunction and commit them to the safe custody of the Warden of the Fleet there to remain until order be taken for their delivery by her Majesties Council of that Court by Authority whereof the said William Rolfe was apprehended and committed to the Fleet for his Contempts but afterwards in further contempt the said William Rolfe's Attorney at the Common Law prosecuting a Nisi prius before Sir Christopher Wray then Lord Chief Justice of the Queens Bench against the Complainant in Guildhall London the said Attorney was then und there presently taken out of the said Court by the said Serjeant at Arms and committed to the Fleet. Nor by Sir Henry Mountà gue Knight Earl of Manchester who being the Son of a Lord Chief Justice of the Kings Bench was in Legibus Angliae enutritus in praxi legum versatissimus a great and well-experienced Lawyer and from his Labour and Care therein ascended to the Honour and Degree of Lord Chief Justice of the Kings Bench from thence to that of Lord Treasurer of England thence to be Lord President of the Kings most Honourable Privy Council and from thence to be Lord Privy Seal and for many years after sitting as Supreme Judge and Director of the Court of Requests in the Reign of King James and King Charles the Martyr together with the four Masters of Requests his Assessors and Assistants in that Honourable and necessary Court Which Office or Place à Libellis Principis of Master of Requests having been long ago in use in the Roman Empire and those that were honoured therewith with maximorum culmine dignitatum digni men accounted worthy of the most honourable nnd eminent Imployments and that Office or Place so highly esteemed as that great and ever famous Lawyer Papinian who was stiled Juris Asylum the Sanctuary or Refuge of the Law did under the Emperor Severus enjoy the said Office to whom his Scholar or Disciple Vlpian afterwards succeeded and with our Neighbours the French summo in honore sunt are very greatly honoured quibus ab Aulâ Principis abesse non licet and so necessary as not at any time to be absent from the Court or Palace of the Prince The Masters of Requests are and have been with us so much regarded and honoured as in all Assemblies and Places they precede the Kings Learned Council at Law and take place of them and amongst other Immunities and Priviledges due unto them and to the Kings Servants are not to be enforced to undergo or take upon them any other inferior Offices or Places in the Commonwealth There being certainly as much if not a greater Reason that the King should have a Court of Requests or Equity and Conscience where any of his Servants or Petitioners are concerned as the Lord Mayor of London who is but the Kings Subordinate Governour of that City for a year should have a Court of Conscience or Requests in the City of London for his Servants or the Freemen and Citizens thereof The Rights and Conveniences of our Kings of England doing Justice to their Domestick or Houshold Servants within their Royal Palaces or Houses or the virge thereof and not remitting them to other Judicatures together
of Her Majesties Courts at Westminster and thereby Her Majesties Subjects and Officers so terrified that they dare not Sue or Execute Her Majesties Lawes Her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings and by unlawful Imprisonments have been constrained not only to withdraw their Lawful Suites but have been also compelled to pay the Pursevants so bringing such Persons great summes of money All which upon Camplaint the Judges are bound by Office and Oath to relieve and help By and according to Her Majesties Laws And where it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to Custody by Her Majesty or her Council is to be detained in Prison and not to be delivered by Her Majesties Court or Judges we think that if any Person be committed by Her Majesties Command from Her Person which may be understood to be so when it is by the Lord Chamberlain of the Kings house or other great Offâ—cers of the Houshold who are commonly Privy Councellors and do it by their Princes Authority or by Order from the Council Board And if any one or two of the Council Commit one for High Treason such Persons so in the Cases before Committed may not be delivered by any of Her Courts without due tryal by the Law and Judgement of acquittal had Nevertheless the Judges may award the Queens Writ to bring the Bodies of such Prisoners before them and if upon return thereof the causes of their Commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remand the Prisoner to the place from whence he came which cannot conveniently be done unless notice of the cause in general or else in special be given to the Keeper or Goaler that shall have the custody of such a Prisoner In which Remonstrance or Address it doth not appear that any Commitments therein complained of were for Arresting any of the Queens Servants without leave first demanded or that any of the matters therein suggested were for that only cause or before Judgements or Execution obtained some of them being expresly mentioned to have been after Judgements and no certain evidence more than for what came directly unto those Learned Judges by the before mentioned Mandate of the Queen for the supposed grievances therein which though much be attributed to the well weighed wisdom of those grave Judges and that their Information had as much of Truth as without a hearing of all parties and legal Examination of Witnesses could be found in it cannot be presumed to be had in a judiciall way after Trials or Convictions but received and taken in from the murmur and Complaints of some Attorneys or Parties only concerned without hearing of the other side or parties or that it was so prevalent with the Queen as to make any Order or restraint or cause any Act of Parliament to be made for that purpose For it will not come within the Compass or Confines of any probability or reasonable construction that those Reverend and Learned Judges Sir Christopher Wray and Sir Edmond Anderson who together with Sir Gilbert Gerard Master of the Rolls had in the case betwixt the Lord Mayor and Citizens of London and Sir Owen Hopton Knight Lieutenant of the Tower of London In the seven and twentieth year of Her Raign which was but seven years before Certified under their hands unto Sir Thomas Bromley Knight Lord Chancellor and others of Her Privy Council that such persons as are daily attendant in the Tower serving Her Majesty the which was more remote from Her Person and Presence of Her Royal Residence or Palace at White-hall Were to be Priviledged and not to be Arrested upon any plaint in London but for Writs of Execution or Capias Utlagatum or such like they did think they ought to have no Priviledge And that Master Lieutenant ought to return every Habeas Corpus out of any Court at Westminster So as the Justices before whom it shall be returned as the cause shall require may either remand it with the body or retain the matter before them and deliver the body as Justice shall require would complain of Commitments of such as Arrested any of Her Servants without leave when it might be so easily had and the Lord Chamberlain of that time was likely to be as little guilty of enforcing Creditors to withdraw their Suits or loose their debts as the Lord Chamberlain and other great Officers of the Royal Houshold have been since or are now Nor do the words of that Information import or point at the Marshalsea of the Queens Court or Her Messengers to whom as the Kings Officers or Ministers of Justice the Queens Writ might have been brought or directed the sending of Pursevants there remonstrated being more likely to have been for some other Concernments and not for Arresting without leave which for ought that appears was never yet in foro Contradictorio upon any Cause or Action argued solemnly at the Bar and Bench adjudged to be a breach of any of the Laws of England or Liberties of the Subjects or not to be any good Cause of Arresting or Imprisoning such as in despite of Majesty would in ConContempt thereof make it their business especially when they needed not to do it to violate and infringe the Royal Jurisdictions and reasonable Customs of their Sovereign and Protector and the long ago and for many ages allowed Priviledges of their Servants And therefore William Earl of Pembroke L. Chamberlain of the Kings House a man very zealous for the Peoples Rights and Liberties may be believed not to have transgressed therein when he did about the latter end of the Reign of King James give His Warrant to one of the Kings Messengers of the Chamber to take into His Custody and bring before him one Mr. Sanderson for causing Sir Edward Gorge one of the Gentlemen of the Kings Privy Chamber to be Arrested without Licence first obtained and being in the beginning of the Reign of King Charles the Martyr Lord Steward of the Kings most Honourable Houshold did commit a Clerk or Servant to a Serjeant at Law to the Prison of the Marshalsea for Arresting one of the Kings Servants without Licence and when he was bailed by the Judges upon a Writ of Habeas Corpus committed him again and being let at Liberty the second time upon a Writ of Habeas Corpus was again Committed by him and could not be Released until he had set at Liberty the Kings Servant And Philip Earl of Montgomery Lord Chamberlain of the King in His Most Honourable Houshold when he did the first day of November 1626. direct his Warrant to all Mayors Sheriffs Bayliffs and Constables c. to permit Mr. Thomas Musgrave of Idnel in the County of Cumberland His Majesties Muster Master for the County of Westmerland to come
and prudently used and with so much reason Justice and Equity as those books will testifie that very few of such Creditours or others which Arrested any of the Kings Servants without a licence or leave first had being brought by the Messengers before the Lord Chamberlain or other Great Officers of the Court unto whose jurisdiction it appertained were unless in case of their great obstinacy and contempt committed to Prison but with a necessary and fitting reprehension dismissed or if upon refusal to obey that Authority so fortified and strengthned by Lawes Ancient Customs and reason they were Imprisoned or committed they were upon their first Petition and Submission as easily released and discharged from it as it would have been easie for them not to have done it or disobeyed Kingly and just Authority or to have used but common Civility due to a neighbour much more to their Prince and Protector of all their own Liberties and Priviledges and that the Warrants for such offendors apprehension being so few and seldom were rather occasioned or happened to be no more by a greater Civility and respect formerly used towards the King and His Servants than is now in the unruly and unmannerly fancies and sauciness of such as would level all the Rights of Government and superiority to their own vain and groundless imaginations attended by a wilful and peevish pride and ignorance or the patience or ability of those that would rather endure such affronts and pay what was demanded than complain of the wrong done to Royal Majesty in the needless violation of His Servants Rights or Priviledges For the Number of them in that compass of Time doth not appear to be any more than 27 in Anno 1626 53. In Anno 1627 15 in Anno 1628 25 in Anno 1629-21-in Anno 1630 25 in Anno 1631-26-in Anno 1632-10-in Anno 1633-18-in Anno 1634-13-in Anno 1635-6-in Anno 1636-16-in Anno 1637-14-in Anno 1638-27-in Anno 1639-19-in Anno 1640. which in so great a number with their Servants and Retinues amounting to a far greater number than 1000 or 1500 of His Servants which are in the Checque Roll or pay of the Greencloth or Treasurer of the Chamber besides not a few extraordinaries and such as have no pay or quarter as they Terme it attending upon the King and His Officers in His House or Palace should not be enough to stir up any envious or causeless complaints against that part of their Priviledges not to be Arrested or Imprisoned without leave first granted Which can be accompted no less than necessary when the leave demanded to prosecute or bring Actions at Law may be to Arrest or Prosecute levi malitiosâ vel injustâ de causâ upon some trivial or unjust pretences and their desires not fit to be assented unto when it may be for some little stroke push or Blow given by the Kings Porters Servants Marshals or Marshals-men or other His Attendants to Repel or Keep Back a Crowding or unruly multitude of the vulgar from disturbing some great Solemnities or Assemblies at the Kings Court or Palace which is so often done as by a Statute made in the 33 year of the Raign of King Henry the eight which ordained rhe loss of the right hand of any striking or making bloodshed within any of the Kings Houses or Palaces or the Virge thereof there is an Exception to the like purpose or for the Heralds or Kings at Arms legally throwing down or breaking the usurped Hatchments or Coats of Arms of those who should not have been so proud or impudent as to have been guilty of it or for Monies already satisfied and the Bonds or Bills not taken up or Cancelled or Shopbooks not crossed and the Money paid not entred or for Taylors Exchangemen or other Trades mens stretched and over multiplied reckonings beyond either Justice or Truth who are many Times the more willing to Trust whereby to gain the opportunity of reckoning as they please or for a Licence to enter upon and bring an Action of Ejectment to recover the possession of some Lands Mortgaged for security of pretended and false reckoned Debts and Forfeitures and extremities beyond right reason and equity endeavoured to be put upon them by some small conscienced men abundantly versed in oppression or by some naughty and greedy Trades-men for all are not to be ranked with them who can fawn and creep and make friends to the prejudice of other Shop-keepers and break the tenth Commandment in the Decalogue to gain their Worships Custome and when they have well wrapt them in their largely reckoned Items make it their humble suit to have some bond or security by some friends to be bound with them or a Mortgage or Recognisance in the nature of a Statute Staple but when they have it by a late trick or cunning now much practised assign as soon as they can those Bonds or Securities if they be not originally taken in some of their friends or acquaintance names unto some who shall abundantly and with all the Rigors of the Law prosecute them and their Estates and will then notwithstanding alleage they cannot help it they were forced if any can be so far fallen out with their understandings as to believe them to borrow Money or satisfie others upon that Security or be undone or go to Prison and hope notwithstanding they will continue their custome and take such commodities as they need of them and being by themselves or Counterfeit Assigns become Masters of their advantages and swelled in their own conceipts to an Empire or Command over a turmoiled impoverished and over burdened Debtor will not only catch all opportunities of keeping their extended Lands at an usual undervalued rate but if not restrained be more merciless than some ship-racking Rock and more fierce and Cruel than some hunger bitten Banditties assisted by the encouragement of some desolate or unfrequented places or then some destroying Herecano in the Indies or America and Rail and Clamor if they may not tear them and their Estates in pieces to satisfie their impatient and unjust designs and demands and where they have taken or seised any of their goods Chattels or Housesholdstuff upon Executions taken out upon two or three or as many more Judgments with great penalties as they can intangle them by lending a little more Money or upon an account or new made reckoning insnare or seduce them into can cause them not only to be sold and bought again by some of their Vulture acquaintance at far undervalued Rates but reckon charges never laid out or disbursed or blown up by the wasting and Lavish expences of Bayliffs and Catchpolls amounting to as much Ravage and spoil as a Kennel of Hounds would make in a Pantry or the incursions of the rude Tartars and Savage Cossacks do not seldom bring upon their more Civilized and unfortunate Neighbours So as a Lord Steward Lord Chamberlain o◠other great Officer of the Kings houshold cannot be rationally adjudged
be Attached Et hinc est quòd vulgaritèr dicitur quòd servientes Regis sunt Pares comitibus and from hence it is saith Fleta that it is Commonly said that the Kings Servants are in that Respect Peers of the Earls and are upon Actions or Complaints of Debt or other personal Actions in the awarding of process in the Court appropriate to the Kings House or Palace to enjoy the like Summons or respectful Usage But if there had been no such Custom or Priviledge in the former ages there is now and hath been for some years last past a greater necessity and reason for it then ever when any of the Kings Servants being made a Defendant by feigned and fictitious Actions or Writs called Bills of Middlesex or Latitats Issuing out of the Court of Kings Bench in placito transgressionis upon a supposed Action of Trespass as great as the Plaintiffs malice or designed oppression to ruine and lay unjust Actions upon him can invent and a late imaginary supposed custom with an ac etiam or supposition of an Action of One thousand or ten or twenty thousand pounds added in the same Writ or Action to be afterwards viz. when the Plaintiff pleaseth exhibited against him may be cast into Prison and overwhelmed with such Complainants pretended Actions his friends so affrightned as they dare not bail him if they were able his service lost and his livelihood under his Sovereign and gracious Master taken away from him and our Kings of England by such Plaintiffs and their untruly suggested Actions reduced to as manifest dangers by Arresting or taking away their Guards or Attendants from them when he shall go or ride abroad or be recreating himself in hunting or other disports as King James was by the wicked Earl Gowries Trayterous purposes to Murder Him by sending His Servanrs the wrong way and telling them that the King was gone before another way and when such Illegal and unwarrantable Writs may have neither cause or evidence or may be for an inconsiderable or small summe of Money or perhaps none at all due unto them And have been of late such Midwives to wicked Designs and Contrivances as a Married Woman hath been by the confederacy of her Husband and the Arresting and Imprisoning her Servants by such Counterfeit Actions enforced to leavy a fine whereby to pass away the Inheritance of her Lands of a great yearly value which was after Reversed by Act of Parliament and a Gentlewomans house in S. Martins Lane in the fields neer London Robbed by Arresting of the Mistress of the House and those that were in it by such Bills of Middlesex for which the Cheater that contrived it was not long after deservedly hanged And surely such a priviledge claimed by the Kings Servants in Ordinary needs not be so quarrelled at when in the great Case which happened in Anno Dom. 1627 being the third year of the Reign of King Charles the Martyr upon Habeas Corpora's brought by four or five Gentlemen who were Imprisoned per speciale mandatum Domini Regis by the Kings Special Command signified under the hands of eighteen Privy Councellors for not lending money to the Publique necessities when they were very able to do it concerning the Arrest or Imprisonment of any of the Freeborn People of England by the Kings Warrant or Command without a cause Expressed Whereby the Judges upon a Habeas Corpus might enquire and Judge of the cause of such Imprisonment and give any of his Subjects their Libertys upon Bail to Answer the Action where the Law allowed it the many and elaborate Arguments made on those Gentlemens behalf in the Court of Kings Bench by several able Lawyers amongst which was that skilful Diver into our Common Laws Antiquities Records and Presidents the Eminently Learned Mr. Noy who except the Great and Learned Selden brought as Great an Ingeny and Intellect to the study of them and a more solid and Penetrating wit and Judgment then any or many an age hath yet produced could not keep the said Gentlemen from being remanded back to the Prisons from whence they came or hinder the opinion of the Judges of that Court amongst which was the Right Learned Justice Doddridge upon view of the President in the case of Edward Page in the seventh year of King Henry the eighth committed to the Marshalsea by the Lord Steward of the Kings House who being afterwards upon an Habeas Corpus brought before the Justices of the Kings Bench was remanded and the like in the Case of James Desmeisters committed to the Marshalsea of the Kings Houshold per concilium Domini Regis by the Kings Privy Council that those Gentlemen could not be Bailed and that by some Pesidents in many Cases where men have been Committed by the Kings Command when they have been discharged by that Court it hath been upon the Kings pleasure signified by His Attorney General or otherwise that which Sir Robert Heath Knight the Kings Attorney General then alleaged for the King in his Argument in that Case not being denied to be Law or presidented either by the Judges or the Council on the other side that multitudes of Presidents might be shewen wherein men Imprisoned for contempts of Decrees in the Courts of Chancery or Requests Courts of Exchequer and High Commission or by the Corporations or Companies of Trade in their Domineering By-laws or Ordinances were not bailed upon their Habeas Corpora's and that in the Case betwixt the Bakers of London where they Fined and Committed men to Prison for not paying of it and the like not seldom done by the Corporations and Companies of Trades in London and the lesser sort of them as of the Watermâ—n c. Thomas Hennings and Litle Page being Imprisoned in 11 Jacobi Regis when they brought their Habeas Corpora and the cause being shewen to be by reason of an Ordinance or Constitution of the Lord Mayor of London the Prisoners were sent back to abide his Order in which grand Case of the Habeas Corpora that Pious and just King did not as Oliver that Canker of our English Laws and Liberties did in the Case of Mr. Cony the Merchant Imprison or Terrifie the Lawyers which argued for them but in the Expectation and hopes of a better effect then afterwards hapned upon it gave them as much Time and Liberty of Search and Arguments against His Royal Prerogative in that particular as they could desire and those very Justices of the Kings Bench being in the next year after called before a Committee of Lords and Commons in Parliament to declare their opinions concerning those proceedings And asserting their opinions Justice Whitlocke being one of the said Judges denied that there was any Judgment therein given whereby either the Kings Prerogative might be enlarged or the right of the Subject Trenched upon that if they had delivered them presently it must have been because the King did not shew cause wherein they should have
judged the King had done wrong and this was beyond their knowledge for the King might have committed them for other matters then they could have imagined and if they had bailed them it must have reflected upon the King that he had unjustly Imprisoned them and that the differences made in the Arguments of that Case betwixt remittitur and rimittitur quousque remitted or remitted how far or unto what Time he confest he could find no more in it but that they were new inventions to trouble old Records and Judge Doddridge said that for the difference betwixt remittitur and remittitur quousque he could never find any he had sate in the Court fifteen years and should know something surely if he had gone in a mill so long some dust would cleave to his Clothes And in the Petition of Right granted in the next ensuing year in the framing and procuring whereof Sir Edward Cook that Venerandus senex investigator legum Angliae very Reverend and great Lawyer whose Learned labors after his discontent for the loss of his place of Lord Chief Justice of the Court of Kings Bench and the former favors of King James tended as much as he could for the finding out and publishing of every thing that might advance the Peoples liberties but as little as might be for the Kings Just Rights and Prerogative assisted by that great Monarch of Letters and Learning Mr. Selden the Excellently Learned Sir Edwyn Sandys Sir Robert Philips Sir Dudly Digges Knights and other great Patriots and well wishers to the Peoples Liberties there was nothing omitted of their care and industry in the search and scrutiny of all that could be found of Law Learning Reason or Precedents to support the Subjects claims therein or effect their desires There is no restraint of that just Legal and very Antient Priviledge of the King and Queens Servants not to be Arrested or Imprisoned without Licence or leave first obtained of the Lord Steward Lord Chamberlain of the Kings Houshold or those other great Officers of His House or Court to whom it appertained nor any thing directly or consultò urged against that necessary part of the Duty of Subjects to their Sovereign or Respects to Him in His Servants Nor in that fatal Remonstrance made by the House of Commons in the after long and over lengthened Parliament the fifteenth day of December 1641. wherein every thing that could be imagined or had but a face of a grievance in the government was too industriously amassed or mustered up was there any complaint of the Protections granted by the King or Priviledge of the Kings Servants in Ordinary from being arrested without Licence first had Neither in those high and mighty undutiful and unchristian like nineteen Propositions sent to His late Majesty in June 1642. whereby they denyed him the care and education of His Children office of a Common Parent to His People and a natural Father to His Children and would have gained to themselves or taken from him His Kingly Authority is there any thing in that particular complained of or desired in remedy of that since supposed evil But that assembly then called a Parliament were so far from hindring it as when they were afterwards Petitioned by divers Creditors against their own Priviledges and the Protections of themselves and their Servants they were pleased to answer that they would take it into their Consideration but in many years after were so busie in the Ruine of the Kingdom and a Purveyanâ—e of Places of honor and profit for themselves as the People had then and may yet have reason to believe they never intended to do it And were so unwilling to have some Prisoners Committed by them to be discharged by Bail upon Writs of Habeas Corpora as they bespoke it for their Priviledge to Commit Matthew Wren the late Bishop of Ely and let him continue 16 or 17 years a Prisoner in the Tower of London without shewing any Cause or making any Charge against him under a Colour and Pretense never to be justified that the Legislative Power and Soveraignty was Inhaerent and Radically in the People who had delegated and entrusted it unto them as the Aenigmatical and unknown Keepers of their Liberties whereby as they imagined their Commitees and Sub-commitees might take as Extravagant Liberties as themselves insomuch as when Mr. Edward Trussel a Loyal Citizen of London about the year 1643 brought his Habeas Corpus to be bailed upon that Parliaments Commitment for not payment of the twentieth part of his Computed Estate Serjeant John Wilde and Mr. Hill two Members of the House of Commons of the then miscalled Parliament came publickly to the Judge sitting in the Kings Bench and took such a course by Whispering and delivering Messages to him as the trembling Judge calling God to witness how willing he would be to do right and be afraid of no body declared it for a kinde of Law that he could not Bail any man where the Commitment was by such a Soveraign Court as the House of Commons in Parliament Who believed it to be so great an Incident and necessary requisite to their usurped Government as they did about the year 1645 Imprison a Citizen of London for Arresting a Nobleman of Germany for some Wares Trusted when he was but in the Company of some of the Parliament so called Members as they were going unto or coming from one of their Sumptuous or Thanksgiving Feasts or Dinners for success in their evil Actions And Oliver Cromwell their man of sin great Captain and Master of as much Perjury as he could himself Commit or drive others unto found it to be so necessary for the maintenance of His pretended State and unjust Authority enforced from the True Proprietor as he was pleased so to Indulge and Protect His Menial Servants with the like Priviledges as one Mewes who attended him could not be Indicted for perjury without Licence first obtained and one Captain William Sadlington having taken from a Dutch Merchant Residing in London Goods or Merchandise at Sea to the value of six or seven thousand pound or endamaged him as much and coming afterwards into England and for some special service done to that Protector of Mischief and Evil Designs being made one of his Domestiques or Servants in Ordinary the Dutch Merchant Commenceing an Action at Law against him for what he had lost and was damaged and causing him to be Arrested was not only with the Bailiffs that Arrested him Imprisoned but enforced before he could have his Liberty to discharge the said William Sadlington and Release his Action And some of his Major Gerals can if they please bear witness how much their Oliver and themselves protected his and their Menial Servants and extended the freedom from Arrest until leave or licence obteined as far as their Common Red-coated Souldiers and how much those Major Generals in their several Provinces did in other things all they could to Stifle
the Law and Domineer over it's proceedings one of them Threatning to Hang up the Lawyers Gowns in Westminster-Hall as the Colours and Ensigns of their once dearly beloved Covenanting but afterwards ill requited and beaten Scots brethren had been used For to Ask or Petition for a Licence or Leave of the Lord Steward Lord Chamberlain or other Great Officers of our Kings Houses or Palaces to whose Jurisdiction it doth belong before any Arrest or Prosecution at Law can be had against any of the Kings Servants is no more then our Laws well Interpreted do order and enjoyn to be done in all Actions Civil Real or Personal against Private and Common Persons or such as are not the Kings Servants for if the Action be laid or entred in the Court of Kings Bench it is to be made Returnable Coram Domino Rege before the King himself who by the Justices of that Court Assigned to hold such Pleas as the King in the Constitution and fixing of the Court of Common Pleas reserved to be heard by himself or those assistant Judges is supposed to Hear and Determine such causes as are proper for that Cour◠or if the Action be desired to be Tryed in the Court of Common Pleas upon the Kings Original Writ which may as it was by the Franks not unfitly be called Indiculus commonitorius A Monitory Letter or Writ of the Kings Issuing out of the High Court of Chancery under the Teste me ipso or witness of the King himself and is to be sued out giving the Justices of the Court of Common Pleas which is the Legal and Proper Court Ordained for such matters a Warrant Power or Commission to hold Plea therein for otherwise saith Fleta nec Warrantum nec Jurisdictionem nequè cohertionem habent supposeth a Petition of the Plaintiff to the King as the Supreme Magistrate for a Debt or Summe of Mony unjustly deteined from him or some Trespass or Damage done unto him for which he cannot Sue or Prosecute without a Writ Remedial or Original granted by the Lord Chancellor or Lord Keeper of the Great Seal of England Commanding the Sheriff of the County or Place where the Plaintiff layeth or desireth to try his Action if it be in Debt to take security of the Complainant for the proof or making good of his Action and to Command the Defendant or Party Complained of to pay the mony demanded and that if the Defendant do not pay the Mony upon the Sheriffs or his Officers or Bailiffs coming to him then they are to Summon him to appear before the Justices of the Court of Common Pleas at Westminster at a Return or Certain time prefixed which at the least is to be fifteen days after the Teste or Date of the Original and many Times with a Longer Return and as many more days given if the Original be sued out but fifteen days before the Terms of S. Michael and Hillary Easter or Trinity Terms but of it be procured or sued out in the later end of a Michaelmas Term and returnable Octabis Hillarii will have more then fifty days betwixt the Teste and Return and if sued out in the end of an Hillary Term returnable the first Return of an Easter Term following will have no less then 60 days betwixt the Teste or Date and the Return or if it Issue out in the end of a Trinity Term returnable the first return of a Michaelmas Term following will have no less then one hundred days betwixt the Teste or date thereof and the Return and more if it be in any of the later Returns of any of the said Terms in all which if the summons had but fifteen days betwixt the date of the Original Writ and the time prefixt the Defendant hath by intendment of Law so much Time or Respite for the payment of the mony in the shortest prefixion but a great deal more in those which are longer which by the reason and equity of our Laws is not to be understood to be easie or probably upon the Instant of the Sheriff or his Officers Commanding the Debtor to pay it but upon a reasonable and possible Time betwixt the Teste and return allowed for the payment thereof very Rich and sufficient able men not having always so much mony at hand to pay at an instant and the monyes demanded do many times in the end of the suit although it be not upon a bond or bill with a penalty or doubling of the summe appear not at all to be due or for some or a great part thereof to be unjustly required and if upon a Bond or Bill with a forfeiture doubling the principal Money or in an Action of Covenant Detinue Annuity or Accompt cannot think it just or reasonable presently to pay as much Mony as an unjust Complainant will not seldom if he may be his own Carver exact of him and in all Actions Personal whether it be for Debt or Damage some part of the time between the obteining the Kings Licence or leave to Sue in the Case of those which are not his Houshold Servants is between the Teste and Return of the Original necessary to be imployed for the Plaintiffs giving to make good his Action for more but never less our Ancient Records do often mention until some of our later ages and the Judges thereof since the Raign of King Edward the fourth in favour of the Disabilities and Inconveniencies which might happen in the Cases of many of the Common or Impoverished sort of people who otherwise would be debarred from the Justice which our Laws intended them were content to dispense with it by reteining only the reason of the Law and allow of the Sheriffs Indorsing and Returning upon the Writ the feigned names of John Doe and Richard Roe for the Sureties put in by the Complainants to make good their Complaints or Actions who being before hand not a little furnished with their weapons of offense may without any difficulty not seldom suddenly surprise the altogether unprepared Defendants our Laws not without cause believing it to be possible that Rich men might oppress the poor and that it is many times easier to offend then to defend and therefore that way of Inforcing the Plaintiffs to give Sureties or Pledges to prosecute their Actions was heretofore so strictly observed as if no Sureties or Pledges to Prosecute were put in by the Plaintiff he could not prosecute the Defendant at Law and if he made not his Action or Complaint appear to be just had in those more Legally Thrifty Times for the Kings Rights and benefit a fine set or Imposed upon him by the Judges pro falso clamore for his causeless accusation which doth frequently occur in the fine or Iter Rolls of the Judges of Assise in the Raign of King Edward the first and was Estreated and Returned into the Exchequer to be leavied upon his Lands Goods or Estate And all that or some of that
subjectionem Reverence and subjection and being then unarmed and his sword ungirt denoteth that he is never to be armed against or opposite to his Lord which by prosecuting or arresting any of his servants without leave he may well be deemed to do and in that faedere perpetuo as to them eternal league betwixt him and his Lord is not saith Bracton propter obligationem homagii by the obligation of his homage to do any thing quod vertatur domino ad exhaeredationem vel aliam atrocem injuriam which may turn to the disheriting of his Lord or other great injury which a sawcy and unmannerly arrest and haling of his servants to prison without licence first obtained hindring thereby his dayly and special service wherein his health safety and honor may be more than a little concerned endangered or prejudiced must needs by understood to be which if he shall do justum erit judicium quod amittat tenementum it will be just that he should lose his Land and our Writ of Cessavit per 〈◊〉 by which the Tenant if he perform not his services to his Lord within two years shall have his Land recovered against him redeemable only by paying the arrears of rents if any and undertaking to perform his services better for the future bespeaks the same punishment a certain conclusion will therfore follow upon these premisses that all such as did before the conversion of Tenures in socage hold the King their Lands immediately in Capite and by Knights service ought not to sue or molest any of his servants without license and although that inseparable Incident of the Crown and most Antient and noble Tenure of Chivalry and military service is now as much as an Act of Parliament can do it turned to the Plow or socage Tenure yet the fealty which is saith Sir Edward Coke included in every doing of homage which being done to a mesne Lord is always to have a Salva fide saving of the Tenants faith and duty to the King his heirs and Successors doth or should put all that are now so willing to hold by that tenure and to leave their Children and Estates to the greedy and uncharitable designs of father-in-Father-in-Laws under the conditions and obligations of fealty in mind or remembrance that by the fealty which they do or should swear unto the King and the oath of Allegiance which containeth all the Essential parts of homage and fealty which are not abrogated by that Act of Parliament for alteration of the Tenures in Capite and by Knights service into free common socage and the Oath of Supremacy to maintain and defend the Kings Rights Praeheminences and Jurisdictions cannot allow them that undutifull and unmannerly way of Arresting Molesting or Imprisoning any of the Kings Servants without leave or licence first had and that a Copyholder in Socage forfeits his Lands if he speak unreverent words of his Lord in the Court holden for the Mannor or goeth to any other Court wherely to intitle the Lord thereof to his Copyhold or doth replevin his Goods or Cattel upon a Distress taken by the Lord for his Rent or Service or refuse to be sworn of the Homage which in Copyhold Estates is not taken away by the Act of Parliament of 12 Car. Regis Secundi for the taking away of Homage upon Tenures in Capite and by Knights Service And where a Copyhold Tenant against whom a Recovery is bad cannot have a Writ of false Judgement he hath no other remedy but to petition the Lord to Reverse the Judgement nor can have an Assise against his Lord but may be amerced if he use contemptible words in the Court of the Mannor to a Jury or without just cause refuse to be of it that all the Lands of England are held immediately or mediately of the King that every Freeman of London besides the Oaths of Allegiâ—nce and Supremacy takes a particular Oath when he is made Free to be good true and obeysant to the King his Heirs and Successors and doth enjoy all the Liberties and Freedome of the City Trade and Companies by and under them And that they and all other Subjects his astricti Legibus which are under such Obligations cannot by their Homage Fealty Tenure of their Lands natural Ligiance under which they were born and Oaths of Allegiance and Supremacy without violation of them and the hazard of their dreadfull consequences incroach upon those just and rational Rights and Priviledges of the Kings Servants confirmed by as many Acts of Parliament as our excellent Magna Charta of England hath been at several times after the making thereof at the granting of which King Henry the 3 d. took such care of his own Rights and Priviledges as by his Writ of Proclamation to the Sheriff of York wherein mention being made that he had granted to the people the Liberties mentioned in the Magna Charta which he would have to be observed he commanded him nevertheless that all his own Liberties and priviledges which were not specially mentioned and granted away in that Charter should be specially observed as they were used and accustomed in the times of his Auncestors and especially in the Raign of his Father King John For our allegiance due to the King being vinculâ—m arâ—tius a more strict tye betwixt the King and his Subjects ingaging the Soveraign to the Protection and just Government of his people and they unto a due Obedience and Subjection unto him by which saith the Custumary of Normandie â—i tenentur contra omnes homines qui mori possunt vivere proprii corporis praebere consilium adjuvamentum ei se in omnibus Innocuos exhibere nec ei adversantium partem in aliquo fovere to give him councel and aid against all men living and dying to behave themselves well towards him nor to take any ones part against him will leave such infringers of his Royal Rights and Piviledges inexcusable for the dishonour done unto him by Arresting Molesting or Imprisoning his Servants upon any Actions or Suit without leave or licence and at the same time when many of them do enjoy the Priviledges of HAMSOCNE a word and priviledge in use and practice amongst our Auncestors the Saxons or questioning and punishing of any that shall come into their House Jurisdiction or Territotory by the gifts grants or permission of the King or some of his Royal Progenitors deny or endeavour all they can to enervate the Rights and Liberties of him and his Servants when they may know that he and his Predecessors Kings and Queens of England have and ought to have an Hamsocne Ham in the Saxon Language signifying domus vel habitatio an house or habitation and Socne libertas vel immunitas a liberty immunity or freedom to question and punish any that shall invade the Liberties and Priviledges belonging to his House Palace and Servants vel aliquid aliud faciendum contra
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
Familiae Regiae cum inter se tum vel adversus alios controversiae in Consilio Procerum Populi disceptantur the controversies of suits which is to be understood where the Judicium or Tribunal in Aula Caesarea in the Emperors Court cannot compose them of the Emperors family brought eithâ—r by or against them are to be heard or decided in the Diets of other publike meetings of the States of the Empire At Florence Siena and Pisa in Italy no man may arrest or commence a suit against a Courtier Souldier or Estranger without a special Licence from an Officer of the great Dukes Court thereunto appointed In the very large Dominions of the Ottoman Empire such as receive any wages or pay coming from the Exchequer or have any Office depending on the Crown are commonly free from the least Injury to be offered unto them when such as offend therein are sure to be severely punished Those sons of Winter rudeness the Russians or Moscovites can in their small commerce with Latine or other learning and the better manners of their neighbour and other Nations so well understand the Privileges or respect of Kings and Princes Embassadors who are therein but as their especial Servants or Messengers as when in the Earl of Carliles Embassy from our Soveraign King Charles the second thither to the Tzar or Emperor of Moscovy in the year 1664. a Gentleman of Plescoe having seized or distreyned two Horses belonging to the Embassadors Train which he had found in the night to have broken into his Pastures the Governor or Plescoe was no sooner enformed thereof but he apprehended the Gentleman and sent him bound to the Embassador to beg his life which upon his acknowledgement of the indiscretion of the fact was easily pardoned by the Embassador the King of Sweden not denying those respects which are due ro Embassadors when in an Embassy into Sweden in the same year he did at the Embassadors request release out of prison one of the Embassadors servants that had in a Duel slain a German Colonel of the Embassadors retinue The People of Holland and their confederate Provinces who do so fondly dream of their freedoms do not think their so hardly gained liberties lost or retrenched when for the military part of their Illustrious Princes of Orange or Stadtholders Domestiques or any of those they call the States general servants being the greatest part of their Menials they cannot Arrest and prosecute any of them at Law before leave petitioned for and obtained and as for any other of their servants not imployed in the War or any of those many several sorts of Officers and Offices appurtaining thereunto there are enough of that Nation can tell that their Greffiers or Process makers can although they are to make out their Mandates and Process ordinarily and in common forms without a special order of the Judge or Recht Heer so easily find the way to a Biass or partiality as to deny it in the case of any of their Superiors Domestiques until they have a special order for it which after a tedious attendance is not to be gained until the matter or debt complained of be referred and put to certain vreede mackers Peace-makers or Arbitrators who can toss the Case in a Blanket and make the Plaintiff a Labyrinth of delays which at long treading shall only bring him to a Mandate and a tyring chargeable and tedious prosecution at their Law against such a pâ—otected seemingly unprotected servant Nor is it rationally to be believed that the servants attending upon the person or in the Court of the Emperor of China whose Dominions are as Samedo saith as big as Spain France Italy Germany the Belgicque Provinces and Great Brittain where the Mandarines his great Officers of State Lord Lieutenants or Governors of Provinces are by the common people so highly reverenced as they are as they pass almost ador'd in all places the people passing in the Streets alighting off their horses or coming out of their Chairs or Sedans when they meet them do not enjoy as great a Privilege as the Servants in ordinary of our English Kings do claim to be free from Arrests or suits in Law before leave or licence first obtained of some of the superiour Officers of his Court or Houshold wherein there are nine Tribunals called Kicu Kim particularly appointed for matters of controversies which concern the Servants In those largely extended Empires of Japan Persia Industan and all the African and Asiatique Kingdoms and Dominions where the power and will of the Princes are their Laws the fear and obedience of their Subjects are so very great and their reverence so extraordinary as they do honour and esteem them as Demi-Gods and have so great a respect of their Chancellors Privy Councellors great Officers of State and servants implyed by them no man can so much mis-use his reason or understanding as to harbor any thought or imagination that the servants of those Emperors or Princes are at any time without leave or license arrested or prosecuted at Law And well might our Kings and Princes and all other Soveraign Kings and Princes understand the mis-usage and disgrace of their servants to be Crimen immunitae Majestatis no small crime or lessning of Majesty and an abuse and disparagement to themselves when the Romans with whom their neighbours the Sabines scorned to Ally or marry in regard of their then ignoble race and originals could in the height and grandeur of their all-conquering Republique after so many liberties obtained by taking them from others creat and constitute Majestatem populi Romani a Majesty so called of their faction breeding inconstant and popular government and accuse Rabirius Posthumus of Crimen laesae Majestatis high Treason for that being a Citizen of Rome he had contra morem majorum the usage and custom of the Romans made himself a Servant or Lacquey to Ptolomy King of Aegypt at Alexandria whereby to procure some money to be paid which was there owing unto him Neither are those that stand before our Kings and Princes or attend upon their persons or near concernments of their Royal Houshold as Servants in ordinary to be ranked amongst the multitude or put under an ordinary Character when reason of State reputation of Princes and the usage and custom of Nations have always allowed distinctions and respects proper and peculiar unto them For so much difference was alwayes betwixt the servants of the Kings of England who by the irradiation of Majesty and Regal Resplendency are not without some participation or illustration of it as they were always allowed a precedency before the greatest part of their Subjects not of the Nobility and Clergy for the Grooms of the Kings Bed-chamber doe take place of any Knight whether he be the Kings servant or not and a Knight being the Kings Servant is to take place of any Knight which is not the Kings servant in ordinary the
Kings Attorney and Sollicitor general and Serjeants at Law except the two Puisneys of the Kings Serjeants at Law have not only precedency before other Lawyers and men of the long Robe not Judges or Masâ—ers of Requests the later of which if but extraordinary and Advocates or Lawyers debet alios Advocatos precedere but with the Kings other Councel of Law extraordinary and the Queens and Princes or heir apparants Attorney and Sollicitor general are in their Pleadings allowed to sit within the Bars of the Chancery Courts of Justice beneath the L. Chancellor L. Keeper or Judges and are to have a prae-audience before any other Lawyers by the custome of England drawn and derived from that of the Civil Law the superintending reason of many of our Neighbour Nations which ordaineth that Advocatus Fisci the Kings Attorney general being first instituted by the Emperor Adrian praeâ—dit quoscunque advocatos etiam eo antiquiores quoniam major est autoritate is to precede and take place of all other Advocates although they be his Antients for that he is greater in authority post advocatum fisci sedere debet in foro procurator Fisci etiam ante omnes alios advocatos simplices non habentes aliam dignitatem cum Procurator Fisci etiam advocatus dici potest and next to him in the Court ought the Kings Solicitor general to sit before any other Advocates having no other dignity when as the Kings Solicitor general may in some sort be said to be the Kings Attorney general and the kings Attorneys and Sollicitors general are stiled Spectabiles a title betwixt that of Illustris antiently given to Emperors Kings and Princes and that of Clarissimus given to Senators tale officium confert dignitatem est nobile ossicium and such an Office conferreth or makes a dignity and is a noble Office and many of the Kings Maenial or Domestick Servants which are under the ranks and titles of Nobility and were not theeldest Sons of Knights are as our learned judicious Sir Henry Spelman hath observed meerly and only by their serving the King said to be Esquires or Gentlemen and Trades-men serving their Prince or the kings Sadler the kings Grocer and the kings Haberdasher the kings Lock-smith c. may by their offices or places stile themselves Gentlemen for although by the Civil Law vaenalitia seu usus vilis artificii ipso facto nobilitatem amittat a Trade consisting of buying and selling or handicraâ— doth in the very act not allow them to be Gentlemen yet Principum artifices nobiles sunt the Workmen of Princes are as it were Nobles the comprehensive term of Gentry quia omnes in dignitate positi for they have a kind of dignity belonging officiariis principum to the servants or Officers of Princes It being adjudged in the Court of Common Pleas in the 14 th year of the Raign of King Henry the 6 that the Serjeant of the Kings Kitchin or any other servant of the King in any other Office in his house is a Gentleman and it was then said by Juin the Chief Justice that those of the Kings house would be grieved if they shoul be otherwise named and it was by Newton one of the Judges of that Court then declared that Gentleman or Esquire is a name of worship that of Esquire being as antient in the Courts of our kings as the time of king Alfred who by his last will and testament recorded by Asser Menevenses gave Legacies Armigeris suis to his Esquires that Title being formerly so uncommunicable to the Vulgar as the eldest sons of Dukes and Barons have not believed themselves to be disgraced by it and in France as late as the raign of their King Francis the first who was contemporary with our king Henry the 8 th a valet de Chambre to the king was appellatio honorifica an honourable title and the French kings Karvers were no longer agoe than in the reign of our Queen Elizabeth stiled Armigeri Esquires and was not heretofore so apt to be mis-used as it is now when too many of our Barristers or Apprentices at Law do so much mistake themselves as to dream that a Tayler Tanner Butcher Victualler or Yeomans Son though nothing of kin to a Gentleman is ipso facto an Esquire when he is called to the Bar in an Inns of Court or being an Officer in a Court of Justice and admitted into an Inns of Court heretofore only destinate and appropriate to the Sons of Nobility or real not self made or created Gentry as the learned Sir John Fortescue Chief Justice and believed to be afterwards Chancellor of England under our King Henry the 6 th hath rightly observed with whom Sir John Ferne a learned Antiquary and Lawyer who lived in the later end of the Reign of Queen Elizabeth and was so great an honourer of the Profession and Professors of the Civil and Common Laws as he saith they do deserve honour and reverence of all men and referring us to Ludovicus Bolognius of the 130 Privileges due to a Doctor of the Laws declareth that they ought to be honoured in the Courts of Princes according to that saying Doctores Legum sunt honorandi ab omnibus Doctors of Law are to be honoured of all men and under that notion comprehendeth Serjeants at Law and other the Legists and Professors of the Common Law doth not disagree when he giveth us not only the evidence that none but Gentlemen were admitted into the Inns of Court but the reason thereof for that Nobleness of Blood joyned with Virtue maketh a man fit and most meet to the enterprizing of any publick service and for that cause it was not for nought that our antient Governors in this Land did with a special foresight and wisdom providâ— that none should be admitted into the houses of Court being Seminaries sending forth men apt for the Government of Justice except he were a Gentleman of blood And that this may seem a truth I my self saith he have seen a Kalender of all those which were together in the society of one of the same houses about the last year of King Henry the 5th with the Arms of their Houses and Family marshalled by their names when Gentry was in that Kings Reign so rightly esteemed and valued as he being to raise an Army to go with him into France did in that warlike age by his Edict or Proclamation prohibit any to go with him but such as had Tunicas Armorum did bear Coats of Arms or were gently born or discended except such as had served in the Battle of Agen-Court And the strict observance of admitting none into the Inns of Court but such as were born Gentlemen was so lately used in some if not all of the Inns of Court as Sir John Archer Knight now one of the Justices of the Court of Common Pleas at
Spanish Ambassadors not long ago in Holland and a little after in England the cares which Princes to whom they are sent have taken to give them satisfaction or to prevent their jealousies or discontents their gifts and presents unto them their Secretaries and principal of their Servants personal and peculiar honours and favours to Ambassadors distinct from a greater to their Soveraign and their sometimes bold and resolute refusals where they found any diminution or neglects of which Bodin Besolus our learned Doctor Zouch and Sir John Finet in their learned Books de Marsellaer Albericus Gentilis Legatis Legationibus concerning Embassies and the Relation of the Earl of Carlisle's stout and prudent management of his Embassies into Muscovy will afford plenty of instances and examples With the more than ordinary civilities and respects used by divers Princes Cities Common-wealths to Ambassadors of Princes and States in League or Friendship with them in their passage to the Princes to whom they are sent or return from their Embassies when the character or representation of their Prince being laid by they are but little more than what they were in their former degrees or qualities as our Sir Daniel Harvey sent to Constantinople and the Earl of Winchelsea in his coming home from the like Imployment can testifie And the great care which hath been taken by the Law of Nations and all civilized Kingdoms States and Commonwealths of Christendom of the Priviledges of Ambassadors which at the highest esteem that can be given them are no other than Extraordinary Servants which for their great abilities in Learning State affairs or Foreign Languages were made choice of by their Soveraign sometimes out of the Subjects and Nobility not immediate Servants and at other times some of the Servants and Officers in Ordinary as of the Privy-Chamber and Bed-Chamber held by the Custome of the wiser and more prudent part of Nations to be so sacred and inviolable as the Emperor Augustus made the putting to death of his Ambassadors and Heralds Titurius and Arunculeius by the Germans to be the cause of a War made against them and swore never to cut the hair of his head and beard untill he had punished them for that misdemeanor And the Greeks and Romans those great Masters of wisdom prudence and civilities and the Persians and many other Nations made it to be some of their greatest concernments to vindicate any the least indignities or injuries offered or done unto their Messengers or Ambassadors And our Laws have informed us that in the 22 th year of the Reign of King Edward the 3 d. one John at Hill was condemned for High Treason for the Murder of A. de Walton Nuncium Domini Regis missum ad mandatum Regis exequendum the Kings Ambassador for which he was drawn hanged and beheaded for saith Sir Edward Coke Legatus ejus vice fungitur a quo destinatur honorandus est sicut ille cujus Vicem gerit Legatos violare contra jus gentium est and Ambassador represents him that sent him and is to be honoured accordingly for it is against the Law of Nations to violate or wrong an Ambassador Et honor Legati honor mittentis est Proregis dedecus redundat in Regem the honour of an Ambassador is the honour of him that sends him and any dishonour done unto him redounds unto his Prince or Superiour For it was in the Reign of King Richard the second adjudged in Parliament to be High Treason to kill or violate an Ambassador of any Prince or Commonwealth in the Case of John Imperiall an Envoy or Ambassador from Genoa slain by the malice of some of his Adversaries and declared in Parliament que le case eslant examine dispute inter les Seigniors Commons puis monstre al Roy en pleine Parliament estoit illonques nostre Seignior le Roy declares determinus assentus que tiel fait coupe est Treason crime de Royall Majesty blemye en quel case il ne doit allower a nullui priviledge del Clergie that the Case being examined and debated betwixt the Lords and Commons and afterwards shewed to the King in full Parliament it was then before the King determined and agreed that the act was Treason and a crime in derogation of Royal Majesty in which no Priviledge of Clergy was to be allowed The great Gustavus Adolphus not long ago victorious King of Sweden made the neglect and slighting of his Ambassadors by Ferdinand the second Emperor of Germany a Justification or Proem of his after most famous and notable exploits against him in Germany and his Ambassadors to be had in such regard as they could safely travel through Fields of his subdued Enemies blood conquered Towns Cities sacked and Armies ready marshalled to act and execute the direfull Tragedies of Battel and Bellona and to be every where protected and not injured And within a few years last past Don Mario the then Popes Brother being guilty only of an affront given at Rome to the Duke de Crequy the French Kings Ambassador by the Corsairs the Popes Guards the Popes Nuntio was in great displeasure sent away from the Court of France and a War so threatned as that imagined Spiritual Father of the Popish part of Christendom was with great loss of reputation enforced to submit to such Conditions as the King of France claiming to be the eldest Son of the Church would besides the punishment of the Delinquents impose upon him and suffer a Pillar to be erected in Rome to testifie the outrage and the severe punishment inflicted for it to the wonder of many Nations and people coming thither that he who sold so many Millions of Pardons to the living and dead should not be able to obtain of the Most Christian King a pardon and forbearance of that Pillar of Ignominy which continuing some years was lately as a signal favour to the See of Rome permitted to be taken down and no more to be remembred And it was not without cause that our Royal Soveraign did in October 1666. by his Letter to the Estates of Holland and the United Provinces justly charge upon them amongst other the causes of his War with them injuries done unto him and his Subjects by the imprisoning of the Domestick Servants of his Envoy and likewise of his Secretary and putting a Guard upon his House And was so necessary an observance amongst Princes and Republiques as howsoever they then faltred and misused their Wisdoms therein that Nation and their Union of Boores Mariners Artificers and others although many of them could hardly find the way to put off their hats or use civilities unto their great and Princely Protectors the Illustrious Princes of Orange have deemed it to be a part of the Subsistence and Policy of that now flourishing Republique to be strict observers of all manner of civilities and respects to the Ambassadors of Princes And the Swisses
Bona Catalla sua quaecunque ac universos legales tenentes suos omnium singulorum maneriorum suorum in protectionem defensionem nostram suscepimus specialem The King to all unto whom these presents shall come sendeth greeting We considering the well accepted and laudable Services done as well unto us as our dear Mother Isabel Queen of England by our trusty John de Staunton and being therefore willing to honour him according to his deserts have made the said John a Knight of our Chamber and one of our Servants in Ordinary whilst he lives as well when he shall be absent as present And of our especial grace have taken into our special protection the said John de Staunton and all his Lands Tenements Goods and Chatels and likewise all his Tenants of his Manors Omnibus singulis nostris fidelibus tenore presentium firmiter inhibentes ne eisdem Johanni Terris Tenementis Bonis seu Catallis suis aut legalibus tenentibus maneriorum praedictorum malum molestiam prisas aut aliud impedimentum inferunt vel faciunt indebite vel injuste si quis eis injuriatum vel forissactum fuerit id eis debite reformari corrigi faciunt Streightly charging and prohibiting all our good Subjects that they do not unduly or unjustly endamage or molest the said John de Staunton his Lands Tenements Goods Chatels or his said Tenants and if any shall injure or wrong them therein that you do duly cause it to be reformed and amended And the Writs of Protection which our Kings of England have sometimes granted unto some which were imployed in their Service upon some special motives and reasons and were not his maenial or domestick Servants having been very often if not alwayes made and granted not only to protect the persons of such as were not the Kings Servants in Ordinary but specially imployed upon extraordinary occasions but de non molestando res terras tenementa homines which in the legal acceptation antiently signified their Tenants as well as their Maenial or Houshold Servants especially when instead of Rents or for some abatements made of them they Plowed and Sowed their Landlords Land Reaped their Corn and did many other Services belonging to Husbandry bona Catalla possessiones suas not to molest trouble or permit them to be troubled in their Estates Real and Personal Lands Tenements Servants Tenants Goods Chatels and Possessions and do agree with those priviledges which our Neighbour Princes of Europe and many other Nations have allowed their Servants And such or the like Protections are and have been an antient allowed priviledge not only to Foreign Embassadors but their Assistants Servants Goods and Chatels in the Dominions and Territories of Kings and Princes to whom they are sent and where they are resident Et sane quae potest tanta vis esse privilegii personae Legatorum si privilegium istis accessionibus non conceditur saith Albericus Gentilis And truly to what purpose will the priviledge of Embassadors be or enure if the Protection of their Estates as well as their persons should not attend their employments for where their persons may not be summoned cited or inforced to lay by or forsake his Service in the attendance upon the process of any of his Subordinate Courts of Justice there cannot by the rules of Common Justice and our Magna Charta that great piece of right reason and Justice be any Judgement had or obtained without appearane against them or any Execution thereupon against their Goods or Estate And it being so just and necessary for the Plaintiffs to demand Leave or Licence for the compelling of them to appear to their actions it will be as necessary becoming certainly to demand a second Leave or Licence to take out process of Execution upon any judgement obtained when as in the ordinaay course of our Laws and the intendment thereof every Plaintiff as the Records of our Courts of Justice will abundantly testifie is as it were by Petition to pray and ask leave to take out his Writ of Execution for that as the Judges may in their inferior Orbes sometimes find cause to Arrest or stay for a time some Judgements and Executions so certainly and much more in the Superior may the urgency of some present and necessary Service of the King and the Weal Publique the Kings Service and the publique being as inseparable as his Person and Authority Body Politique and Corporal require some pause or a Licence first to be demanded Such requisites and privileges drawn from the same Fountain of priviledges and reason being no otherwise in their effects then as to the joynt priviledges of Persons and Estates then the priviledges of Parliament and the Protections allowed unto the Peerage and Members of the House of Commons and their Maenial Servants in order to that publick affair and service of the King who doth not limit those favours only to their Persons and the personal service of their Servants attending upon them but do for that time comprehend and secure their Estates both Real and Personal and will not willingly permit so much as the minds of any of the Members of Parliament to be vexed by any disturbance of process or legal proceedings whilst they are employed and intended by Law to be only busied in those weighty occasions which they would be if the Real and Personal Estates of themselves or Servants which attended upon them were molested and troubled and therefore King Henry the 8th in his Speech to the Judges in the Case of his Servant Ferrers and a Member of the House of Commons in Parliament in the 33th year of his Raign said that his Learned Councel at Law had inform'd him that all Acts and Process coming out of any Inferiour Courts must for the time cease and give place to the Parliament as the highest of Courts and that whatsoever Offence or Injury is in Parliament time offered to the meanest Member of the House of Commons is to be adjudged as done both against the King and the whole Court of Parliament which was then assented unto by all the Judges of England then present saith Mr. Crompton and confirmed by divers reasons And well may it be so when it is and hath been not unusual for the Judges of the Court of Kings Bench or Common Pleas which do stand upon a less but legal Foundation to free or unattach Goods attached in the City of Lond. by their course or custom of Process of a man that had occasion to attend either of those Courts concerning some Suit or Suits there depending as to procure a Capias utlegatum against one c. and declare it to be a priviledge or liberty belonging unto those Courts in their several Jurisdictions to protect such persons in veniendo versus eandem Curiam ibidem morando inde ad propria redeundo absque arrestatione Corporum Equorum Bonorum seu Catallorum
in comming to the said Court or Courts there abiding or returning homewards without any Arrest of their Bodies Horses Goods and Chatels by any process out of any Inferiour Court Et habere debeant salvum securum conductum sub protectione defensione Regis Progenitorum suorum and in that respect were to have asafe conduct of the King his Progenitors and to be in their Protection and it was in former and less factious times not unusual to have such or the like Protections of our Kings for the Lands and Goods of the persons protected as well as for their persons to be allowed in our Courts of Justice witness the Writ to be found in the Register before or much about the 11th year of the Raign of King Edward the 3 d. entituled a Writ of Trespass contra protectionem Regis for molesting or troubling a man protected by the King directed to a Sheriff to attach the Defendant in these words of the commanding or mandatory part thereof Ostensur quare cum suscepimus in protectionem defensionem nostram praedictum A. homines terras res reditus omnes possessiones suas omnibus singulis inhibentes ne quis eis injuriam molestiam damnum inferret aut gravameâ— idem B. Bona Catalla praedicti A. dum sub protectione nostra sic fuit ad valentiam centum Solidorum apud H. inventa vi armis cepit asportavit in homines servientes suos insultum fecit c. per quod servitia sua amisit alia enormia c. ad grave dampnum c. contra protectionem nostram praedictam contra pacem nostram habeas ibi nota plegiorum c. To shew cause whereas when we took into our Protection the aforesaid A. his Lands Goods Tenants and all that he possessed prohibiting all and singular whatsoever that no man do or cause to be done unto him any injury damage or trouble the said B· the Goods and Chatels of the said A. whilst he was under our Protection to the value of five pounds at H. by force and arms did take and carry away and made an assault upon his Tenants and Servants c. whereby he lost their Services c. and did other injuries unto him c. to his great damage against our Protection and Peace and have you there at Westminster the names of his pledges or sureties c. With good reason therefore and much more in the case of the Kings Servants when it would be of a small avail for any man to be Priviledged or Protected in his person whilst he is employed in the Kings Sercice when all his Lands shall be seized or extended his Goods and Personal Estate taken away his Wife Children and Family starved undone or ruined and like Job stripped of all he had may be at liberty to complain of his misery and calamity and hear an impatient Wife blame him for being so careful to serve a King that would not or could not protect him And as little it would be for the good or dispatch of the Kings affairs when it cannot be so well done as otherwise it would by a man whose soul is grieved the faculties of his mind and understanding weakned and astonish'd his thoughts racked or tormented with cares and apprehensions of damage losses dangers or disgraces and cannot rest or follow his business as otherwise he would do but be looking homeward either to provide some remedy or comfort as well as he can for his sorrowfull Wife and Children to which many times his presence is so requisite as nothing can help or relieve them or himself without it and that surely which serves for a Reason or Justice in the case of a person not the Kings Servant in ordinary where he is specially imployed in his service should be as necessary or reasonable or rather more in the case of his Servant in ordinary who in such a trouble and sadness as appeared in the face of the good Nehemiah the Cup-bearer of King Artaxerxes when he heard of the great affliction and reproach of his Brethren at the distressed Jerusalem must when he shall he asked as Nehemiah was Why is thy countenance sad seeing thou art not sick it is nothing else but sorrow of heart be inforced to declare his sorrows to his Soveraign who when he shall be informed of the cause of it must be constrained to do as that tender-hearted King did to give such a troubled Servant leave to depart to his distracted Estate and in the mean time want his service CAP. V. That the Kings Servants whilst they are in his service ought not to be Vtlawed or prosecuted in order thereunto without leave or license first obtained of the King or the Great Officers of his most Hâ—nourable Houshâ—ld under whose several Jurisdictions they do officiate ANd to as little or no purpose would that antient and just Priviledge of the Kings Servants in ordinary not to be arrested troubled or imprisoned without leave first obtained profit them if whilst they shall be busied in attending the person of the King or some other of his affairs they may be sued to an Utlary and forfeiture of all their Goods and Personal Estate put out of the protection of the King and his Laws and thrust under the many damages inconveniences and incapacities which do way-lay and fall upon Utlawed persons and will be hugely contradictory to the right reason and intention of our Laws neither can any Sheriff retorn upon an Original Writ retornable in the Court of Common Pleas to which and no other Court except in the Court of Kings Bench in Actions of Trespass or upon the Case importing a breach of the Peace in all Civil Actions the prosecution of Writs to the Utlary doth only and properly appertain or upon a Bill of Middlesex a great encroacher upon the Rights and Jurisdiction of the Court of Common Pleas and a greater upon the Rights and Liberties of the people or an Action entred in the Sheriffs Courts in the City of London or of any other City or Corporation that any of the Kings Servants who were not wont to be either Beggars or Runagates nichil habet nec est inventus the later of which however now disused was antiently never omitted but as a companion in separable upon such Retorns of Writs went together with the former when as the Offices and Places in the Kings Court were not usually so poor or unprofitable as that they should be worth nothing or those that enjoyed them so willing to leave them as to run away from them And then certainly if by Law any such Retorns cannot in the case of the Kings Servants in ordinary be justly or legally made nor any Process of Capias or to arrest executed against them without a leave or license first obtained nor any Utlary without a Capias after that an alias Capias and afterwards a pluries Capias
Utlawed person could not be restored till he had been by the Court committed to the Prison of the Fleet for his contempts purchased and pleaded his Charter of Pardon from the King under the Great Seal of England and appeared to the Action when the King and his service and attendance was the only cause that he did not or could not attend or appear thereunto or put in Bayl to answer it when there was no danger of his absence or flying away from the Kings Service which is or ought to be not a little advantageous or beneficial unto him And when the Plaintiff at whose instance such a prosecution was made might with as much ease and as little charge and a far less expence of time have petitioned the Lord Chamberlain of the Kings Houshold and obtained a license to have taken his course at Law against him And if the Lord Chamberlain had given the Defendant a reasonable time or prefixion for the Plaintiffs satisfaction as his Lordship usually doth it would probably not have exceeded the time of six months which is by our Laws the shortest time wherein a Defendant can be Utlawed which as Bracton saith ought not to be suddenly done but to have five months warning or time given in regard of the severity thereof when a man is Utlawed and is thereby to forfeit bona catalla patriam amicos his Goods Chattels Countrey and profits of his Lands to be as an exile or banish'd man was not to be received or entertained by his Friends could not bring an Action for any thing due unto him untill the Utlary be reversed but was as antient as the Saxon times accounted to be a Friendless and Lawless man And it would be a great piece of incivility to prosecute such a Servant of the Kings in ordinary so busied and imployed about his person and not first of all to Petition for his license when in an ordinary way and with no great charge and a great deal sooner than the Defendants appearance to his Action can be enforced by an Utlary it might have been so easily procured and possibly the Kings great occasions and expence of money for the Publick and their defence and protection wherein the good and safety of that Plaintiff was amongst the rest included might be the cause that he could not pay such Servant in ordinary his wages and that such Servant could not so soon as he otherwise would have satisfied the party prosecuting there being no reason to be assigned by any whose exuberant phancies have not altogether divorced them from it that one that is but imployed upon a seldom and temporary imployment of the Kings and is not his Servant in ordinary nor the business he is imployed in so continually near and relating to his person should during that his temporary imployment and of a far less concernment as to go on a Message for him or in company of some Ambassador be priviledged during his absence in his Person Goods and Estate and a Servant in ordinary continually attending his Sacred Person should be only protected in his Person but not in his Estate or that the priviledges and immunities so antiently due and appropriate to his Servants in ordinary and near his person should be curtailed and have less allowed them than Strangers and such as are only imployed for some small time or occasion Or that the Utlawing of any of his Servants in ordinary should forfeit their so just Rights and Priviledges when as by the Law and reasonable Customs of the Kingdom they are not to be Utlawed or put in Process of Utlary without license or leave first asked and no man should be Utlawed or punished for a default of not appearing or have any Process of arrest or contempt awarded against him where he had a reasonable excuse or impediment or cause of Essoyne as by Inundation of Waters being sick or in the parts beyond the Seas or so great a one as the Service of the King for if Utlaries in such a case unduly obtained should cause a forfeiture of just and legal Customs and Priviledges any that had a mind to do a mischief to a supposed adversary might as well contrary to the Priviledges of Parliament in the time of Parliament find or make a pretence to Utlaw any of the Members of either of the Houses of Parliament and make that to be as it were a forfeiture of their Priviledges and a justification which they can never make out of the infringing of them and the Parliament-men of the House of Commons might be Utlawed persons which the Law forbids and by tacite and many times undiscerned Utlaries might lose and be deprived of their Priviledges And the parties offending or endeavouring such breaches of Priviledge should not take advantage de son tort of their own wrongs or tortious doings which our Common Law maxime doth abhorr and the Civil Law doth as little like or allow when its Rule is that Nemo commodum consequi debet ex suo delicto no man is to take profit by his offence against the Law For in vain should the Kings Servants be by the Constitution of Clarendon in the Reign of King Henry the second freed from Excommunications or the Ministers or Priests be by the Act of Parliament in the 50th year of the Reign of King Edward the third and the first year of the Reign of King Richard the second exempted from being arrested in the Church or Church-yard if an Utlary which being very antiently used in Criminal matters but not in Civil in Bractons time in the Reign of King Henry the 3d. taught the way and manner of it in Civil should be able to forfeit it or take them away for in and before that Kings Reign Bracton saith Videtur nulla esse Vtlagaria si factum pro quo quis Interrogatus est Civile sit non Criminale pro quo quis vitam amittere non deberet vel membra it seemeth there ought to be no Utlary where the Defendant or party is prosecuted for any Civil matter not Criminal wherein he was not to lose either life or members And very unbecoming the Majesty and Honour of a King it would needs be to have any of his Servants Utlawed and pursued with Process of Utlary whilst they are attending upon him and made to be as the out-cast and reproach of the people and not be able to protect them in their just Rights and Liberties or that any of our Kings Servants should Lupina capita gerere be as men wearing Wolves heads which was the antient mark or note of infamy of such as were Utlawed in Criminal matters instead of honourable Liveries or marks of the Kings Servants in ordinary When in the 6th year of the Reign of King Henry the 4th Roger Oliver the Son of John Oliver being in obsequio Regis in Comitiva Johannis Lardner Capitanei Castri de Oye in partibus Piccardiae pro munitione
an alias and pluries Capias also to arrest returned with a non est inventus that such of the Kings Servants being sought to be arrested is not to be found and until there can be a contempt where there is none a consequent without an antecedent and an effect without a cause Howsoever if any of the Kings Servants should at any time be so indirectly and unduly outlawed he may by the favour of their Royal Master be inlawed and restored to the benefit and protection of Him and his Laws as was some hundred of years ago held to be Law and right reason by Bracton who left it as a Rule to posterity that Rex poterit utlagatum de gratia â—ua per literas suas Patentes inlegare recipere eum ad pacem suam reponere eum in legem extra quam prius positus fuit The King may of his Grace by His Letters Patents pardon the Utlary and restore him to the benefit of his Laws but if he were outlawed contra legem terrae debet eam pronunciare esse nullam utlagati secundum legem terrae facilius recipiuntur ad pacem secundum quod ibi fuerit causa vera vel nulla vel minus sufficiens contrary to the Law of the Land the Utlary ought to be annulled and the Defendant more easily received into the protection of the King and his Laws where there was a just cause for to reverse it or where the cause of the Outlawry appeared to be none or insufficient with whom concurred Fleta who likewise said quod utlagati extra legem positi ad legem gratia Principis concomitante restitui possunt inlagari dum tamen causa utlagariae nulla fuerit vel nimis mature That men outlawed or bereaved of the benefit of the Laws may by the favour of the Prince be restored when the cause of the Vtlary was none or it was sooner promulged or adjudged then it ought and may well be understood to be no otherwise When our very learned Bracton did long agoe rightly define an outlawed person to be qui principi non obediat nec Legi which obeyed not the King nor the Law and the cause of an Outlawry to be contumacia inobedientia contempt of the King and disobedience unto him and his Laws such Servant of the King which obeyeth the King his Soveraign and Royal Master in the duty of his place necessary attendance and service cannot be adjudged to disobey the King at the same time when he doth more especially obey him And if not guilty of any disobedience contumacy or contempt to the King cannot be understood to be so unto his Laws or established Courts of Justice which do act and do justice and punish in his name only and by his authority for where there cannot be a contumacy or cause of it according to the priviledge of the Kings Servants in the first Process or Summons in Order to the intended Vtlary nulla sequi deberet captio cum captio nulla saith Bracton nec ea quae sequntur locum habere debeant no Capias or Writ to arrest ought to issue and when there is no Capias or Writ to arrest the Vtlary which shall be endeavoured to be the consequence of it is not to be at all quia ubi primum principale quod est summonitio non subsistit for that the principal which was the Summons was not duly awarded But if any shall think it to be a contempt of the Kings Process or Courts of Justice although it be none against the K. himself such a contra-distinction will prove to be as invalid illegal and irreligious as that abominable one in the late Times of Confusion of distinguishing betwixt the person of the King his Authority and his natural and politique capacity which our Laws do declare to be so united as though most of the Regal Priviledges are adjudged to appertain to the Sacred Persons of our Kings for the Kings Prerogative as Justice Brown alledged in the argument of VVillon and Berkleys Case en respect de son person vaont a son person is in respect of his Person and do attend it and howsoever there are some that do only and properly belong to his Politique capacity yet his natural and politique capacities are neither to be confounded or so separated as one to be against or contrary to the other And they which are so willing to entertain or harbour any such opinions may do themselves more right to believe that which a more serious consideration may inform them That the Civil Law defining representation doth make it to be no more then locum alterius obtinere vel tantundem valere to be in the place of another or to avail as much as if he were present and preses Provinciae dicitur in provinciis representare qui in eadem judicis juris vicem tenet the President of a Province is said to represent is as a substitute of the Judge the Law and Acts there in the place of them which to all that are but smally acquainted with those excellent Laws cannot seem to be absâ—lute when they may every where find the Praetors or Proconsuls of Provinces advising as the younger Pliny sometimes did with Trajan the Emperor in their Letters to the Emperors upon all emergencies and cases in Law and directing and steering their Judgments and sentences according to their rescripts and answers retorned unto them and our common-common-Laws of England where they do sometimes seem to say that the King is virtually present in his Courts of Justice do it but as authorative with a quoad quatenus and quodam modo as unto such or such things and particulars in a certain manner as far as the reach and compass of the Delegated power committed unto their care and trust will extend for the King is not in such a manner represented by or in his Courts of Justice by his authority granted unto them as to be no where else in his natural or personal Capacity or Commands for then he must be Apotheosed or more then mortality or mankind will permit and so omnipresent and every where as to be at one and the same morning hour and instant of Time in the Terms or Law dayes in the Court of Common-Pleas Exchequer Kings-Bench and Chancery out of the later whereof he could not issue out in the same day and moment of Time his Writs Original and remedial under his Teste meipso witness our self in the Chancery authorizing the Justices of the Court of Common-Pleas to hold Plea in most of the Actions which they have cognisance of and are impowred to hear or determine and be at the same time truly and properly believed to be in the Court of Common-Pleas nor could cause any of their Records to be transmitted coram nobis unto himself in his Court of Kings-Bench to correct the Errors committed in some Action by the Judges of
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
out and Sealed by Officers and Clerks of the Court whence they issued without the privity or knowledge of the King or his Lord Chancellour or Keeper of the Great Seal of England or the Judges of the Court of Common-Pleas and that if those Writs which now and for many yeers past to the great ease of the people have been made in an ordinary way and course at smal rates and charges as anciently as the Raign of King John and King Henry the third should have been made by the privity of the Chancellour or Chief-Justice or of the King himself or granted upon Motion or Petition and read and recited in the Kings presence or in Court by or before the Chancellor or Chief-Justice when such Actions Writs or Complaints were few and seldome yet when afterwards they should appear to be mistaken too sodainly or erroniously granted or that the King or the Court have as in humane affairs it may often happen been misinformed or deceived therein such Writs or Process surprize or mistake may be revoked and rectified and the Writs and proceedings thereupon contradicted by the King or his Authority as hath been done in the Writs of Supersedeas to the Barons of the Exchequer to stay their proceedings in Common-Pleas or to the Marshalsea of matters wherein they have no Jurisdiction that known Rule of Law declaring the Kings Letters Patents of the Grant of Lands to a man in Fee or Fee Tayl to be void where the King is deceived in his Grant or as King Henry the 3d. superseded his Writ de Excommunicato capiendo to Arrest or take an excommunicated person because he was circumvented in the granting of the Writ or made void his Conge d' Eslire to the Priory of Carlisle confirmed an election upon a former Conge or licence or as is often done by that common usual way of Supersedeas made by the King upon matters ex post facto or better information or by his Justices and Courts of Justice by Writs of Supersedeas quia improvide or Erronice or datum est nobis intelligi in regard of misinformation Error or better information or in the vacating of Recoveries Judgments discharging Actions for abuse of the Courts or ill obteining of them or their Writs Process freeing of prisoners taken Arrested by Writs or Process not duly warranted And that such an indirect and feigned prosecution of the Kings Servants to the Utlary designed only to abridge the King of his regal Rights forfeit and annul the Priviledges of his Servants and obstruct and hinder his service and attendance aswell deserves a punishment as that which was usual in our Laws in the Reigns of King Henry the 3d. and King Edward the 1. for indirect recoveries or Judgments obtained by a malitious surprize falshood or non-Summons as the ensuing Writ will evidence Rex vic Salutem praecipimus tibi quod habeas coram Justitiariis nostris c talem petentem scilicet ad audiend Judicium suum considerationem Curiae nostre de hoc quod ipse per malitiam manifestam falsitatem fecit disseysiri talem de tanta Terra cum pertinentiis c. Et unde cum ipse B nullam haberet summonitionem optulit se idem A versus eum itaqd terra capta fuit in manum nostram semel secundo per quani defalt idem A terram illam recuperavit desicut illa defalta nulla fuit ut dic catalla ipsius B in eadem terra tunc inventa ei occasione praedâ—cta ablata eidem sine dilatione reddi facias restitui Praecipimus etiam tihi qd habeas coram c. ad eundem Terminum A B per quos summonitio prima facta fuit in Curia nostra Testata praeterea quatuor illos per quorum visum terra illa capta fuit in manum nostram per quos captio illa testificata fuit in Curia nostra c. etiam illos per quos secunda summonitio facta fuit testata ad certificandum Justitiarios nostros de praedictis Summonitionibus Captionibus Et habeas ibi hoc breve Teste c. The King to the Sheriff talis loci County or place sendeth greeting We command you That you have before our Justices c. such a Demandant that is to say to hear the Judgement Order of our Court in regard that he by malice and manifest fraud caused such a one the Tenant to be disseised of so much Land with the appurtenances c. whereupon when the said E the Tenant or Defendant had no Summons the said A the Plaintiff or Demandant did so prosecute that Action that the Land was taken into our hands a first and second time by which default the said A recovered the Land whereas there was no default as was alledged and took the Goods and Chattels of the said B then found upon the Land and taken from him by that means We command you that without delay you cause the same to be rendred and restored unto him that you also have before our Justices at the same time A and B by whom the first Summons was made and certified into our Court c. and likewise those by whom the second Summons was made whereby our said Justices may of the aforesaid Summons and Captions be certified and have you there this Writ Witnesse c. Or that which King Richard the Second did in Parliament in the fifteenth yeer of his Raign inflict upon Sir VVilliam Bryan for procuring a Bull of the Pope to be directed unto the Archbishops of Canterbury and York to excommunicate some that had broken his house and carried away his Writings by committing him prisoner to the Tower of London that fact and doing of his being by the Lords in Parliament adjudged to be prejudicial to the King and in Derogation of his Laws such and the like artifices and devices being so much disliked by the Commons in Parliament in the 39th yeer of the Raign of King Henry the sixth as they complained by their Petition to the King Lords that VValter Clerke one of their Members a Burges for the Town of Chippenham in the County of VVilts had been outlawed and put in Prison and prayed that by the assent of the King and Lords he might be released and their Member set at Liberty Or that which King Henry the eighth did in the Case of Trewynnard a Burgess of Parliament imprisoned upon an Utlary after Judgment in delivering him by his Writ of Priviledge which upon an Action afterwards brought against the Executors of the Sheriff and a Demurrer was resolved by the Judges to be legal And therefore Philip late Earl of Pembroke and Montgomery Lord Chamberlain of his late Majesties Houshold should not be blamed for causing in the yeer of our Lord one thousand six hundred thirty and seaven one Isaac VValter to
be taken into custody as hath been before mentioned for a contrivance not to trouble himself to ask leave to arrest Henry Hodsell one of the Kings Servants by suing him to the Utlary endeavouring by that artifice way of rigor extremity to do what he pleased with his Goods Estate without arresting his person or infringing of that part of his Priviledg which being a Correlate to the King becomes to be his concernment as wel as a concernment of any of his Servants which shal be arrested or imprisoned without leave or licence first as aforesaid to be demanded for it is the K. Priviledge and a part of his Regality Honour that his Servants should not be arrested or taken from his Service without a licence first procured And it was therefore no indigested or unwarranted opinion of Bracton when putting the Case where a Laick hath consented to a Tryal before a Judge Ecclesiastical or in foro vetito in a Court where he should not of matters quae pertinent ad Coronam dignitatem Regiam which appertained to the Kings Crown and Dignity he concludeth That poterit enim quis renuntiare iis quae pro se introducta sunt sed tamen non in praejudicium aliorum sicut in praejudicium Regiae Dignitatis quia injuste non trahitur ad alienum forum ex quo renuntiando privilegio suo hoc voluit injuste tamen propter privilegium Regis That any man may renounce those things which were granted in his favour but not to the prejudice of another because he cannot be said to have been unjustly drawn to appear in another Court or Jurisdiction when he did waive or forsake his own priviledge yet he did it unjustly in regard of the Kings Priviledge Et imponi non potest necessitas Regi quod suam Jurisdictionem amittet and the King is not to be necessitated or imposed upon to loose his Jurisdiction which will appear to be consonant to the wisdome of many other Nations the rule of the Civil Law being that a Priviledge cannot be renounced or disclaimed in praejudicium reservantis sibi Jus in Privilegio to the prejudice of him that reserved a right in that priviledge videtur enim inter partes ultro Citroque obligatio contracta quo fit ut unus consensu tantum distrahi non potest for there is such an Obligation or contract betwixt the parties on both sides as with the consent only of one of the parties it cannot be discharged sucâ— deceitful Contrivances to defeat the King of his Regalities and Priviledges and bereave him of the attendance of his Servants by arresting and imprisoning them whether he will or no and if they cannot do it one way to compasse and do it by another upon an impulse only of some over fierce malitious or uncivil Creditors or Complanants will or haughty humor to prejudice or abstruct their Soveraigns affairs or service when they knew a more easie and mannerly way to compasse their pretended rights by petitioning for a leav or licence to take their course at Law against them if in the mean time they were not satisfied and do by so doâ—ng make themselves guilty of a greater contempt and more immediately to the King then any pretended contempts of the Kings Servants in not appearing whilst they are busied in his service to the Writs or Process of his Courts of Justice for which they would arrest or Outlaw them may very well require the care which King Edward the third did take to secure his Servants from damage by their not appearing to any Process or Summons in his Courts of Justice whilst they were in his Service by his Writ under his Great-Seal of England in these words Rex Justitiariis suis de Banco Salutem Sciatis quod A fuit in Servitio nostro per praeceptum nostrum die Lunae in Crastino Quindenae Paschae prox praeterito Ita quod eo die interesse non potuit loquelae quae est coram vobis per breve nostrum inter B petentem praedictum A tenentem de uno Messuagio cum pertinentiis in N unde idem A versus praedictum B inde vocavit ad warrantum c. ut dicitur ideo vobis mandamus quod praedictus A propter absentiam suam ad diem illum non ponatur in defaltam nec aliquo sit perdens quia idem ilâ—um quoad hoc VVarrantizamus c. The King to hâ—s Justices of the Bench or Common-Pleas sendeth greeting Know yee that A was in our service by Our Command upon Munday being the morrow after Quindena Paschae or fifteen dayes after Easter last past So that he could not that day appear in the Action which was depending before you by Our Writ betwixt B Demandant against the aforesaid being Tenant of one Messuage with the appurtenances in N wherein the said A vouched C to warranty against B as is said and therefore we command you that no default be entred against the said A in regard of his absence that day and that he receive no damage therein because we do as to that warrant him which seems to be no Novel Writ or but once or seldome made when the Rule of the Register is that the like Writ may be sent to the Maior and Sheriffs of London the Bishop of Durham within his Liberty of Durham the Justices of Assise or to a Sheriff c. in these words Sciatis quod A fuit in servitio nostro per praeceptum nostrum die Jovis in Octabis Sancti Hillarii die Lunae in Crastino Animarum proximis praeteritis which may seem to be upon some Kings-Bench Writ or Process where they do now use to make them retornable upon certain dayes of a retorn of Writs or if they were upon Writs or Process of the Court of Common-Pleas where the retorns are commonly not upon a certain day of a week these dayes appointed and past might probably be some Courts or Husting dayes upon an Exigent in order to an Vtlary or if not out of either of those Courts upon some day of appearance before some Judges of Assise but out of what Court soever the Writs or Process were issued it appears there were some defaults recorded or entred and were notwithstanding to be superseded or not to be to the prejudice of the Kings Servant or service there being likewise subjoyned a Rule in the Register quod breve de VVarrantia de servitio Domini Regis potest fieri pro petente sicut pro tenente factum fuit Anno quarto decimo Edwardi Regis Tertii that such a Writ of Warranty by reason of the Kings service may be made aswell for the Demandant as the Tenant and that the like was done in the fourteenth year of the raign of that King So as such or the like proceedings against any of the Kings Servants whereby to bereave them of their just Priviledges may deserve the Cheque and Comptrol of the
Protector of our Liberties and his care and vigilance to vindicate the just Rights and priviledges of himself and his Servants which being to be as dear unto him and of a greater concernment then the Priviledges of the University of Oxford which were granted and confirmed by divers of his Royal Progenitors Predecessors Kings and Queens of England may perswade those Invaders of his Royal Rights in the Priviledges of his Servants to esteem it no severity or injustice in our Gracious Soveraign to say and resolve as King Edward the third did in the Case of the Priviledges of the University of Oxford endeavoured to be undermined and subverted that he would have them to be inviolably observed and that he would impugnatores eorundem debite cohercerc the violators thereof duly restraine and punish and in another Case concerning Suits or Actions unduly brought in the Courts Ecclesiastical declare as that King did in these words ad jura nostra ne depereant seu per aliquorum usurpationes indebitas aliqualiter subtrahâ—ntur quatenus juste poterimus manutenendo subtractaque occupata si quae fuerunt ad Statum debitum revocand nec non ad impugnatores eorund Jurium refrenand pro ut convenit juxta eorum demerita puniend eo Studiosius nos decet operam adhibere solicitius extendere manum nostram quo ad hoc Juramenti vinculo teneri dinoscimur astringi pluresque conspicimus Indies Jura illa pro viribus impugnare least that our Rights may not be lost or diminished or by any undue usurpations in any wise substracted and to the end we may revoke or resume them and likewise punish the impugners thereof as it behoveth us according to their demerits and are the more carefully to use our endeavours therein to which we are by the Bond of our Oath obliged in regard we understand those our Rights to be more and more opposed notwithstanding that which to those who will look no further into it may seem but not prove to be an Objection that an Exigent being awarded in the Court of Common-Pleas against one R. C. in Easter Term in the seventh year of the Raign of King Henry the 8th in the County of Surrey the said R C as it is mentioned in Rastalls Book of Entries did the 13th day of June then next following being the first County Court day appear and deliver to the Sheriff the Kings Protection under the Great Seal of England wherein he stiled him his Servant and one of the Grooms of his outward Chamber took him and his Estate into his Salva guardia safeguard protection for one year next ensuing the 16th day of September then last past and prohibited the outlawing or molesting of him whereupon the Sheriff forbearing to proceed and at the retorn of the Exigent which was A die Sancti Michael is in unum mensem a moneth after Michaelmas retorning and reciting the Tenor of the Protection and concluding Ideo ad ulterius Executionem ejusdem brevis de Exigi fac nihil Actum est that therefore nothing more was done in the execution of the Writ of Exigent the Court Quia praedictus Vicecomes executionem dicti brevis de Exigend non fecit sed de executione ejusdem pretextu brevis alterius supersederit prout per retornum ejusdem vicecomitis constat in regard that the Sheriff did by colour or pretext of the said other Writ the Kings Protection supersede the said Writ of Exigent as appeared by the retorn of the said Sheriff amerced the Sheriff in forty shillings and ordered that a new Exigent the retorn of the former being expired should be awarded against him retornable A die Paschae in unum mensem a moneth after Easter for upon view of the Record it appeareth that the date of the Kings Protection was the sixth day of February in the sixth year of the Reign of that King and to endure for a year from the 16th day of September next before the date thereof and that the said R. C. being in the Exigent whereunto he appeared and the Writs of Capias alias and Pluries leading thereunto named Richard Camden of the Town of VVestminster in the County of Midlesex Fishmonger otherwise called Richard Camden of the Town of VVestminster Fishmonger the Action being an Action of Debt for 6 l. 13 s. 4 d. at the Suit of VVilliam Isack Alderman and Draper of London the King also mentioning him immediately after the Title of his Servant and one of the Grooms of his Chamber to be otherwise called Richard Camden late of London Fishmonger It is very probable that he had been only sworn one of the Grooms of the Kings Chamber Extraordinary and evident enough That the Sheriff was justly amerced for taking upon him to supersede the said Exigent as if he had been a Judge when he was but a ministerial Officer and was to have attended the Judges allowance or disallowance thereof who might well afterwards award an Exigent de novo to be made against him when the Protection was expired and if it had not been expired were not to take notice of it from the Sheriff but from the Writ of Protection it self when it should have been brought and delivered unto them as it was adjudged in the 38th year of the Reign of King Henry the 6th where a Sheriff was fined for delivering a prisoner out of his Custody by the Kings Writ of Protection which should first have been brought to the Judges and allowed by them And might besides have been well disallowed by the Sages of the Law in the said 7th year of the Reign of King Henry the 8th for variance betwixt the Addition of the Defendant in the Exigent and Writ of Protection as the like had been done in the 19th year of the Reign of King Henry the 6th And if he had been the Kings Servant in Ordinary might have been as legally granted unto him to revoke supersede an Utlary unduly prosecuted as the Judges of the Court of Kings-Bench or Common-Pleas have reversed or stayed Utlaries by reason of the Defendants imprisonment sickness of malady hindering an appearance to an Exigent or as the Judges of the Court of Kings-Bench in the 5th year of the Reign of King Edward the 4th did resolve that they themselves might ex officio by Office of Court do it in case wherein an Indictment was insufficient or an Exigent was awarded where it ought not or as the Judges did in the 10th year of the Reign of that King in allowing upon a Traverse and Issue joyned upon an Exigent in an Action of Trespas the priviledge of a Filacers Horsekeeper travailing with his Master to London and bringing back his Horses or as the Judges of the Court of Common-Pleas in the 5th year of the Reign of King Henry the 8th did by his authority supersede an Exigent by a Protection allowed by reason of serivce in War or
course of Law its Process may inform us that the King hath notwithstanding such a power superintendency of Justice inherent in him over all the Courts of Justice high or low in the Kingdome as upon the Sheriffs retorn quod mandavit Ballivo libertatis that he made his Warrant to the Bayliff of such a Liberty to arrest such a Defendant and that the Bayliff nullam sibi dedit responsionem had made him no retorn nor answer he may thereupon by his Justices cause a Writ to be made to the Sheriff commanding him quod non omittat propter aliquam libertatem Ballivi libertatis c. quin capiat that he do not omit to enter into the said Bayliffs liberty and arrest the Defendant and may also when a Defendant is outlawed cause at the instance of the Plaintiff a Capias Vtlegat Writ to be made to take arrest the utlawed person with a non omittas propter aliquam libertatem power and authority to enter into any Liberty under the name of his Attorney General as an Officer intrusted with the making of the said Writs of Capias Vtlegatum and that Offices either granted by the King for term of Life or in Fee or Fee-Tayle are forfeitable by a Misuser or non user by not executing that part of the Kings Justice committed to the care and trust of the Officers thereof And so necessary was the Kings Supreme Authority heretofore esteemed to be in the execution and administration of Justice as in the Case between the Prior of Durham and the Bishop of Durham in the 34th year of the Reign of King Edward the first where amongst other things an information was brought in the Kings-Bench against the Bishop for that he had imprisoned the Kings Officers or Messengers for bringing Writs into his Liberty to the prejudice as he thought thereof and that the Bishop had said that nullam deliberationem de eisdem faceret sed dixit quod ceteros per ipsos castigaret ne de cetero literas Domini Regis infra Episcopatum suum portarent in Lesionem Episcâ—patus ejusdem he would not release them but would chastise them or any other which hereafter should bring any of the Kings Letters or Writs within his Bishoprick to the prejudice of the Liberties thereof And in the entring up and giving the Judgment upon that Information and Plea saith the Record Quia idem Episcopus cum libertatem praedictam a Corona exeuntem Dependentem habeat per factum Regis in hoc minister Domini Regis est ad ea quae ad Regale pertinent infra eandem libertatem loco ipsius Regis modo debito conservanda exequenda Ita quod omnibus singulis ibidem justitiam exhibere ipsi Regi ut Domino suo mandatis parere debeat prout tenetur licet proficua expletia inde provenientia ad usum proprium per factum praedictum percipiatur in regard that when the Bishop had the liberty aforesaid by the Kings Grant or Charter from the Crown and depending thereupon he is in that as a Servant or Minister of the Kings concerning those things which do belong unto the Kings Regality within the Liberty aforesaid to execute and preserve it in a due manner for and on the behalf of the King so as there he is bound to do Justice to all men and to obey the King and his Commands as his Lord and Soveraign although he do by the Kings Grant or Charter take and receive the profit arising and coming thereby Wherein the Judges and Sages of the Law as in those Ancient Times they did not unfrequently in matters of great concernment have given us the reason of their Judgment in these words Cum potestas Regia per totum Regnum tam infra libertates praedictas quam extra se extendant videtur Curiae toti Consilio Domini Regis quod hujusmodi imprisonamenta facta de hiis qui capti fuerunt occasione quod brevia Domini Regis infra libertatem praedictam tulerint simul cum advocatione acceptatione facti Et etiam dictis quae idem Episcopus dixit de Castigatione illorum qui brevia Regis extunc infra libertatem suam portâ—rent manifeste perpetrata fuerunt when as the power and authority of the King doth extend it self through all the Kingdome as well within Liberties as without it seemed to the Court and all the Kings Counsel that such imprisonments made of those which brought the Kings Writs within the Liberty aforesaid the Bishops justifying and avowing of the Fact and the Words which the Bishop said That he would punish all such as should bring any Writs to be executed in his Liberty were plainly proved Et propterea ad inobedientiam exhaereditationem Coronae ad diminutionem Dominii potestatis Regalis Ideo consideratum est quod idem Episcopus libertatem praedictam cujus occasione temerariam sibi assumpsit audacim praedicta gravamina injurias excessus praedictos perpetrandi dicendi toto tempore suo amittat Cum in eo quo quis deliquit sit de Jure puniendus Et eadem libertas Capiatur in manus Domini Regis Et Nihâ—lominus corpus praedicti Episcopi capiatur Wherefore because it tended to disobedience and a disherison of the Crown and diminution of the Kings Power and Authority It was adjudged that the Bishop for his rash presumption and boldness and for committing the aforesaid wrongs and injuries should forfeit his Liberty aforesaid for that every man is to be punished according to the nature of his offence And it was ordered That the Liberty should be seized and taken into the Kings hands and that the Body of the Bishop notwithstanding should be taken into Custody For the Kings Justice to which his Coronation Oath is annexed is inseparable from his Person so fixed to his Diadem and Regal Authority as it is not to be absolutely or any more then conditionally deputed and intrusted to any other or otherwise then with a reserve of the last Appeal and his Superiority and therefore King Edward the first in some of his Writs Commissions or Precepts saith that he but not his Judges was Deâ—itor Justitiae so a Debtor to Justice as not to deny it to any of his People complaining of the want of it and ad nos pertinet the care thereof belongeth to the King and to that end appointed his high Court of Chancery and his Chancellor or Lord Keeper of the Great Seal of England and required all the Officers Clerks of that Court to take care that pro defectu Justitiae nullus recedat a Cancellaria sine Remedio no man for want of Justice do go away from the Chancery destitute of remedy from whence also lyes an Appeal to the King himself in Parliament and in the Case of Sir William Thorpe Chief Justice of England in the 24th year of the Reign of King Edwardâ— the third being put
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-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
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
and of great antiquity and authority in our Laws and very well deserving the respect is paid unto it being but a Collection of Writs out of the publick Records made and granted under the Kings Great Seal warranted either by the Common-Law or grounded upon some Acts of Parliament Protections have been granted under the Great Seal of England with a Supersedeas of all Actions and Suits against them in the mean time unto some that were sent into Forraign Parts or but into the Marches of Scotland or Wales or in Comitativa retinue of some Lord or Person of Honor employed thither in the Kings Service or unto such probably as were none of the Kings Servants in Ordinary or Domestick but as more fit persons were only sent as appeareth by the Writs upon some special and not like to be long lasting occasions with an exception only of certain Actions and Cases as in Writs of Dower for which Sir Edward Coke giveth us the Reason because the Demandant may have nothing else to live upon in Quare Impedits Quaere non Admisits or Assizes of Darrein Presentment for the danger of a lapse for not presenting within six months in Assizes of Novel Disseisin to restore the Demandant to his Freehold wrongfully entred upon and not seldom gave their Protections quia moraturus unto some Workmen Engineers or others imployed in the Fortification of some Castles or Fortress sometimes but as far as the Marches of Wales with a command that if they were incarcerati or imprisoned they should be forthwith released and at other times upon his Protections granted quia profecturus revoked his Protections because the party desiring to be protected did not go as he pretended upon the Kings message or business or having finished the Kings business imployed himself upon his own and upon better information that he did continue his imployment in his service revive it again sometimes sent his Writ to the Justices not to allow his Protection because the party protected did not go about the business upon which he was imployed and at other times sent his Writ to the Sheriffs of London to certifie him whether the party protected for a year did go in obsequium suum versus partes transmarinas in Comitativa c. upon the Kings business in the company and attendance of A. B. possibly some Envoy which makes it probable that the party protected was rather some Stranger than any of the Kings Servants and more likely to be in the cognisance of the Sheriffs of London than of the King or any of the Officers of his honourable Houshold as may appear by the subsequent words of the Writ which were an in Civitate nostra London moretur propriis negotiis suis intendendo whether he remain in the City and followeth his own business And not only granted such Protections but as was in those times held also to be necessary and convenient added a clause de non moleâ—tando of not troubling the party whilst he was thus imployed in his service homines terras c. his Lands Servants c. except or in regard of any of the aforesaid Pleas which were usually mentioned in the said Writ of Protection And if it were directed to the Sheriffs of London a clause by a rule of the Register was to be inserted dum tamen idem so as the protected person probably imployed in the victualing of a Town or Fort do satisfie his Creditors for Victuals bought of them And where the Protections appeared to be granted after the commencement of the Action did sometimes revoke them but if it were for any that went in a Voyage that the King himself did or other Voyages Royal or on the Kings Messages for the business of the Realm it was to be allowed and not revoked and the Kings Protections in that or any other nature had the favour and allowance of divers Acts of Parliament either in the case of such as were not their Servants or otherwise and had such respect given unto them by the Law and the Reverend Judges in Bractons time as he saith Cum breve Domini Regis non in se contineat veritatem in hoc sibi caveat Cancellarius if the matter be not true the Chancellor or Lord Keeper of the Great Seal of England is to answer for it and quando quis Essoniaverit de malo veniendi quia in servitio Domini Regis admitti debet Essonium allocari dies dari dum tamen warrantum ad manum habet cum de voluntate Domini Regis non sit disputandum And King Edward the third did in the 33th year of his Reign by an Act of Parliament de Protectionibus concerning the repealing of Protections unduly granted by his Writ directed to all his true and faithfull Subjects now printed amongst the Statutes and Acts of Parliament and allowed the force and effect of an Act of Parliament as many other of the Kings Mandates Precepts or Writs antiently were declare that for as much as many did purchase his Protections falsly affirming that they were out of the Realm or within the four Seas in his service did provide That if their Adversaries would except or averre that they were within the four Seas and out of the Kings service in a place certain so that they might have well come and if it be proved against the Defâ—ndant it should be a default and if such Protection be on the Plaintiffs behalf he should lose his Writ and be amerced unto the King which can signifie no less then that a Protection granted where the party is really and truly in the Kings service should not be disallowed or refused which the Commons of England were used so little to disgust as that in the 47th year of the Reign of that King they did in Parliament only Petition that any having a Protection for serving in the Wars and do thereof fail by one month to the deceipt of the Kings people such Protection to be void To which the King only answered Let the party grieved come into the Chancery and he shall have remedy The Act of Parliament made in the first year of the Reign of King Richard the second ordained that no Protection with a clause of Volumus our will and pleasure is that he be not disturbed with any Pleas or Process except Pleas of Dower Quare Impedit Assise of Novel Disseisin last Presentation and Attaint and Pleas or Actions brought before the Justices Itinerant shall be allowed where the Action is for Victuals taken or bought upon the Voyage or Service whereof the Protection maketh mention nor also in Pleas of Trespass or of other Contract made before the date of the said Protection The Statute of the 13th year of the Reign of the aforesaid King which was made for that many people as well such as be not able to be retained in War for in those dayes divers of the Nobility and Gentry and
their Servants were accustomed to be retained by the King to serve in his Wars as others by the testimonial of the Governors of the Marches Captains of Garrisons Admirals and others did purcbase Protections with a clause of Volumus or Quia profecturus because he was going in the Kings service after a Plea was commenced against them whereby to delay the said Plea and after do not go into the said service ordained That no Protection with a clause Quia profecturus be allowed after the Suit commenced before the date of the Protection if it be not in a Voyage that the King himself goeth or other Voyages Royal or in his Messages for the business of the Realm But saith that Act of Parliament it is not the intention of this Statute but that the Protection with the clause Quia moraturus because the party protected abideth in the Kings service be allowed in all cases as it was before that time And if any tarry in the Country without going to the service for which he was retained over a convenient time after that he hath any Protection or return from the same service if the Chancellor be thereof duly informed he shall repeal such Protection as it hath been used before that time In the 9th year of the Reign of King Henry the 5th Protections were granted to them that were in the Kings service in Normandy and France or which should pass with him into France By an Act of Parliament made in the 14th and 15th years of the Reign of King Edward the 4th it was ordained that the like Protections as were granted by an Act of Parliament made in the 9th year of the Reign of King Henry the 5th cap. 3. to such as were then in the Kings service in Normandy or France or would pass with that warlike King Henry the 5th into France should be observed and avail for all such as should pass over with him By a Statute made in the 6th year of the Reign of King Henry the 6th there was a rehearsal and confirmation made of the aforesaid Statute in the 9th year of King Henry the 5th touching Protections granted to those who were in Wars in Normandy or France which extended it further then the preciser time of their present service And by an Act of Parliament made in the 8th year of the Reign of that King there was only to be excepted in all the Protections of such as should go with the King into France Writs of Assise of Novel Disseisin King Henry the 7th in the 4th year of his Reign did by an Act of Parliament grant Protections unto all which then were or after should be in the Kings service in Britany together with certain Immunities granted to the Feoffees Executors and Heirs of them which should dye in the service which was more than a personal protection And by another Act of Parliament made in the 7th year of his Reign did ordain That every person that should be in the Kings wages beyond the Sea or on the Sea should have a Protection By an Act of Parliament made in the 11th year of the Reign of the said King Henry the 7th mentioning in the Preamble That it is not reasonable but against all Laws reason and good conscience that the Kings Subjects going with their Soveraign Lord in Wars attending upon him in his person or being in other places by his commandment within or without his Land as some of his menial Servants may possibly whilst he is absent from his Palace either in the Kingdom or without any thing should lose or forfeit for doing their true duty and service of Allegiance it was enacted That no manner of person or persons whatsoever he or they be that attend upon the King and Soveraign Lord of this Land for the time being in his person and do him true and faithfull Allegiance in the same which certainly his Houshold and menial Servants are understood to do or be in other places by his commandment in his Wars within this Land or without be convict or attainted of High Treason nor of other offences for that cause by Act of Parliament or otherwise by any Process of Law whereby to lose or forfeit life lands possessions or rents goods chattels or any other things but be for that deed utterly discharged of any vexation trouble or loss and any Act or Process of Law contrary thereunto to be void And King Henry the 8th did likewise by an Act of Parliament enact That they which were or should be in the Kings Wars beyond the Seas or upon the Sea should have a Protection of Quia profecturus or moraturus cum clausula volumus as aforesaid Such or the like Protections being held to be so necessary in the former ages when the people of England not enjoying under the Papal Tyranny so great an happiness and liberties as they have done since the Reformation were so little of kin to the murmuring Israelites as they troubled not the ears of their Kings or their Courts of Justice with complaints against Protections when there was no deceit in the obtaining of them or abuse in the use of them when in the third year of the Reign of King John a Protection was granted by him unto one Peter Barton the son of Peter Barton then living or residing in Poictou parcel of his French Dominions for his Goods and Estate as well as for his person as his Father had the day that he died and commanded all his Bayliffs and Officers in that Country to protect and defend thâ—m sicut servientem suum quousque sibi servierit as his Servant for so long time as he should serve him Robert de Ver qui de licentia Regis peregre profecturus est in terram Hierusalem habuit liter as patentes de prâ—tectione sine clausula duraturas per trienninm had the Kings Protection for three years without any clause or exception and Gerard de Rodes travelling to the same place had a Protection with a clause quod quietus esset de secta Comitatuum Hundredorum de omnibus placitis quaerelis exceptis placitis de Dote unde nihil habet assisa Novae Disseisinae Vltimae praesentationis Ecclesiarum duraturas quamdiu idem Gerardus fuerit in peregrinatione praedicta that he should not be molested with any Suits in the County Courts and Hundreds and with any other Pleas and Actions except Actions or Pleas of Dower Assises of Novel Disseisin and the last presentation unto Churches to remain in force as long as the said Gerard should continue in his travels or Pilgrimage as aforesaid and a Protection granted by King Edward the first in the first year of his Reign to Robert de Plessetis sine clausula without any clause or condition to endure untill Easter then next following and the like unto Hugh de Weston who had the Kings license to travel to Rome to endure untill Michaelmass
then next following and King Edward the 4th by vertue of his Kingly Prerogative as the Writ and the Record declared granted his Protection unto John Namby Gentleman Executor of William White alias Namby for himself and his Servants and their Lands and Estates to endure for three years very many of the Subjects of England in those dayes and the Reigns of our former Kings travelling on Pilgrimage for devotion or penance to Jerusalem or St. James of Compostella or which were Cruzadoed or voluntarily went unto the Holy Land so called for recovery of it in such numbers as about the year of our Lord 1204. being in the latter end of the Reign of King John sixty thousand English took the Cross for the Holy Land whose Protections saith Fleta were not in those dayes disallowed in the Courts of Justice because it was then understood to be in causa Dei the cause of God or for some which were sent on the Kings messages or affairs to Rome Normandy or Gascoigny in France or other parts beyond the Seas or in those many our English Warlike Expeditions and Armies sent to Jerusalem France Spain and Scotland or the Borders thereof in the Reigns of many or most of our Kings and Princes from William the Conquerors entring into England and the subduing of it untill the Reign of King James and into Wales or the Borders thereof untill the Reign of King Edward the third when the Nobility and principal part of the Gentry were even in those times more likely then the Commonalty or vulgar to be in debt and wanted not upon occasions the credit and good will of the Common people to trust them and freedom from Actions at Law and troubles in the mean time and the many thousands of our Tenants in Capite who by the Tenure of their Lands as well as by the bond and obligation of their Loyalty to their Kings and Princes were to attend them in the service of War not only upon their Summons and Commands in their Foreign Expeditions but at home in their defence against Rebellions and sudden Insurrections and had in the mean time no doubt Protections and freedom from Suits and Arrests whose Court Barons and Leets more then now orderly kept permitted not their Tenants disobedience unto them or their Jurisdictions or an enhance of the price of their Commodities and their Lands so entayled as they could not if they would either borrow or owe much money When the Nobility and Gentry like the Stars in our Hemisphere kept their courses and great Hospitalities addicted themselves to actions of greatness goodness charity and munificence and their numerous Tenants depending upon them returned them submissive and humble obedience a reverential awe and gratitude and held much of their Lands upon trust of performance of their Services and many Husbandry works instead of Rents and in that were more endebted to their Landlords and entrusted by them then their Landlords were unto them who did not as now they do with their Wives and Daughters resort to London to learn vice and vanities and run into Debt more than they should do nor make themselves at costly rates so great and oâ—ten purchasers of Transmarine Wares and Commodities which the small Income of the Customs in the beginning of the Reign of Queen Elizabeth when our Clothing and Exportation far exceeded our Importation will witness when the profit of her Customs in both was at first let to Farm but at 13000 l. per annum and afterwards at no more then 50000 l. per annum when there was not so great and consuming expences in Coaches Wine and other Foreign Toyes and Trifles when by reason of 600 Monasteries and Religious Houses and the great Retinues and number of Servants kept by them and the Nobility Bishops and Gentry and depending upon them the younger Children of the Nation were so largely provided for as there were not so many Trades or Apprentices in London as there have been of latter times so many Taverns Cooks or Trades of pride and luxury to entice the Nobility and Gentry into debts and expences when the rates and prices of their Wares and Commodities honester made and of Victuals and Houshold provisions were limited and bounded by our then better than now executed Laws and Trade was not let loose to all manner of fraud and unlawfull gains and the Companies or Corporations of Trades were not so many Combinations to adulterate and abuse the Trade of the Kingdom as now they do when there was not so frequent trusting by Trades-men as now of late only to encrease their gain double and raise their prices and make a more then ordinary usury upon the kindness they pretend to do their Customers by trusting of them when Trade and the furnishing of vice and excess had not made the Gentry so endebted to the City who are not in their Countreys or Neighbourhood so much under the lash of their complaints or prosecution when the Church-men by reason that some contracts were upon distrust of performance sworn and bound up by Oath would ratione sâ—andali sometimes take occasion to draw into their Courts the cognisance of Debts and Excommunicate them untill they were about the Reign of King Edward the first prohibited by the King and his Courts of Justice And Usury was as well before as long after accounted such a mortal sin as Christian Burial and the power of making last Wills and Testaments was denyed unto them the personal Estates of the Usurers confiscated the dying in debt reckoned a sin punishable in the next World all or some of which might give us the reason why there was in former times but very little complaint against Protections for most of that little which appears of the use or pleading of Protections in our Law-books or Records through so many past ages were in Pleas or Actions concerning Lands or Replevins c. but few in personal Actions or Actions of Debt and those which do in every Kings Reign appear in our Records to have been granted in respect of the many occasions and importunities which might otherwise have induced the granting of them to have been but a few in respect of many more which might have been granted if the prudence and care of our Kings had not restrained or limited their own power and authority therein for that there were then either few or out-lying over-grown or long-forborn Debts or the reason of the parties protected being imployed in the Kings Service which was and ever is to be accounted the interest of every man and a concernment of the Publique was enough to pacifie them and the care and reverence of the King and his business taught the people to obey rather then dispute that necessary part of his Prerogative which deserves our imitation when conform to the Laws of Nations Queen Elizabeth by the advice of as wise and carefull a Councel as any Prince of the World was ever blessed with did in
the 17th year of her Reign by her Writ under the Great Seal of England directed to that learned and judicious Lawyer Sir Nicholas Bacon Knight Lord Keeper of it who allowed and sealed it and the Lord Treasurer of England and her Justices Barons of the Exchequer Sheriffs Mayors Bayliffs c. signifie that she had taken into her Protection for three years Martin Frobisher Gent. probably the eminent Sea-Captain and his ordinary Servants whom she had imployed in her affairs beyond the Seas and therefore by vertue of her Royal Prerogative which she would not have disputed commanded every of them that during the saie Martin Frobishers absence and before his departure and after his return during the said three years they should not suffer him or his Servants in ordinary to be arrested attached or outlawed or to be molested or disquieted in their Persons Goods Chattels Lands or Estates and that the Justices in their several Courts should supersede and discharge all Actions Plaints and Suits tending thereunto and not proceed thereupon and may give us to understand that howsoever in Warhams Case in the 20th year of her Reign before her Judges of her Bench her Protection signifying that she would not have her Prerogative disputed was without debating as the Writ commanded not allowed but silently laid by possibly by reason of variance or incertainty of time or upon some defect of form or words in the Writ or in regard that it mentioned not whether the party desiring to be protected was profecturus or moraturus to go or abide in the Queens service or because the Writ of Protection came too late or the nature of the Action or some matter in the Pleading or the Issue which was omitted by the Reporter would not admit it yet the disallowance of one Protection is no argument or enough to conclude that no Protection was or ought to be allowed when so many do appear in the Records and Year-Books of our Laws to have been allowed For certainly if that great Queen had the year before 1588. and that almost unavoidable ruining storm of the Spanish Armado which threatned the destruction of her and this Nation given her Protection Royal to Sir Thomas Gresham Knight that Prince of Merchants for the securing of his person and Estate from arrest or troubles when for her service and the safeguard and defence of the Nation he had stretched that grand and all the Credit which he had in Foreign parts to dreyn the Banks thereof and to borrow and take up at Interest so great a part of the moneys thereof as he prevented the King of Spain therein and so disappointed him of money as he could no sooner send that formidable Navy against England which he designed to have sent the year before whereby she was not suddenly attaqued but had time to provide a gallant resistance and whether the clause of commanding her Prerogative therein not to be disputed had been inserted or not which in such a secret and important affair ought not to have been made publick either in such a Writ or in a Court of Justice every man that had not sued a Bill of Divorce against his reason common sense and understanding might have believed such a Protection in such an exigent to have been as legal as it would have been for publique good and necessary And although the Reverend Judge Fitzherbert was of opinion that a Protection of the King quia in servitio Regis because the party to whom it was granted was in the service of the King or the like is not to be allowed for a longer time than a year and a day being supposed to be a competent time for the dispatch of such an emergent or extraordinary imployment of the Kings as was pretended which no Act of Parliament hath yet limited there being a possibility of a longer time of the imployment either as profecturus or moraturus in the going or tarrying when the time of the dispatch of business cannot be circumscribed especially in Foreign parts whither and whence in longer or shorter Voyages the winds as well as other occasions and accidents are to be aâ—â—ended and that in the 39th year of the Reign of King Henry the 6th a Protection was not allowed because the Defendant having obtained it in regard that he was in servitio Regis and sent to Rome Pleas of Dower and Quare Impedit were not as they used to be and ought by Law to be excepted in the Writ of Protection yet Mayle one of the Justices of the Court of Common Pleas then said that in a Voyage Royal or in business concerning the Realm or in an Embassage or the like a man should be protected and a Voyage Royal saith Fitzherbert is where the King goeth to War or his Lieutenant or Deputy Lieutenant and that a man is to be protected when he is in the Kings service for guard of the West Marches of England towards Scotland and in the 21th year of the Reign of King Henry the 6th a Protection was allowed after the Nisi prius or Issue tryed and sometimes for the Plaintiff as well as the Tenant or Defendant as in the 14th year of the Reign of King Edward the 4th Essoines of the Kings service being likewise ordinarily allowed by the Judges upon allegation or proof of the Kings service at the time of casting or praying for them there being an ordinary course of Essoining allowed communi jure of common right to such as are not in servitio Regis or the Kings Servants as de malo lecti for sickness c. and are now in many Actions allowed of course without any proof or question made thereof And those kind of Protections were so effectual and respected in the 21th year of the Reign of King Edward the 3d. as in an Action where the Queen who was to enjoy some greater Priviledges then others of the Subjects was Plaintiff such a Protection was allowed and it is not without some warrant or reason of Law observable that the Protections and Essoines which were quia in servitio Regis in regard that the person to be protected was in the Kings service were most commonly quia profecturus because he was to go or abide upon some imployment for the King do mention per praeceptum or in obsequio Domini Regis that they were sent by the Kings command or upon his service which in case of ordinary or domestick service needs not to be so much mentioned by the words per praeceptum or in obsequio Regis the word obsequium being by the Civil Law only understood to be reverentia honoris exhibitio erga parentes patronos an honour and reverence of Freemen to their Parents and Patrons contradistinct to the duty of work or labour in Servants that such men were commonly Strangers and none of the Kings Houshold Servants and that in those early dayes and times of Popery when there was
such an entercourse betwixt England and Rome and our Kings had so much ado to guard the Rights and Priviledges of themselves and their people from the Papal attempts and usurpations and many of our Kings had in their possession Normandy Aquitain and in other Provinces of France divers Forts and Castles they might well have occasions of sending many that were not of the Houshold which were better to be spared then those of whom they had daily use of occasion of service and that where the Protections were quia moraturus it was not seldom mentioned to be about fortifying a Castle or Town or providing Victuals for them or an Army and may rather be deemed to be none of the Houshold for that in the Register of Writs some Protections are revoked by the King because they pretended to go when they were commanded but did not or followed their own occasions and affairs not the Kings which cannot be easily understood of the Kings Servants in ordinary who in those dayes would not be willing to absent themselves from such profitable and eminent services and imployments And Sir Edward Coke in his greatest aversion to the just Rights and Regalities of the Crown is positive that besides the Kings general Protection of his loyal Subjects there is a particular Protection of two sorts the one to give a man an Immunity and freedom from all Actions or Suits the second for the safety of his person Servants and Goods Lands and Tenements whereof he is lawfully possessed from violence unlawfull molestation or wrong the first is of right and by Law and the second sort are all of Grace saving one and that the Kings Protection so as it be under the Great Seal of England as well moraturus as profecturus upon any mans going or abiding in the Kings service must be regularly to some place out of the Realm of England and that in some Actions as in a Scire facias upon Recoveries Fines Judgements c. In a Writ upon the Statute of Labourers although by the Statute made in the second year of the Reign of King Edward the 6th cap. 15. and the Statute made in the 5th year of the Reign of Queen Elizabeth cap. 4. no Protection is to be allowed and in a Writ of Deceit notwithstanding the rule of Law is that fraudi aut dolo Lex non patrocinatur Deceit is not to be favoured a Protection doth lye And that the Kings Protections are to be brought to the Courts of Justice where the Action is laid be they Courts of Record or not of Record and not to the Sheriff or any other Officer or Minister and are allowable not only unto men of full age but within age and for Countesses and women as nutrix lotrix or obstetrix Nurses of the Kings Children the Midwife to the Queen or Laundresses of the King or Queen Protections do lye and have been allowed where Essoines do not and denyeth not but a man having a Protection Quia moraturus and returning from beyond Sea only to provide Ammunition Habiliments of War Victuals or other necessaries for the Kings service and be arrested or imprisoned he shall enjoy the benefit of his Protection and denyeth not but that some Protections Quia nolumus because we will not that he should be molested may be granted by the King of grace and gives his opinion that where it is pro negotiis regni for the concern or business of the Kingdom jura publica ante ferenda privatis private mens actions are to give way or yield to the publick and private mens Actions and Suits must be suspended for a convenient time where it is pro bono publico the Weal-publick as certainly the necessary attendance of his Servants in ordinary either for his honour conveniency health or safety do relate unto and concern the peoples good and safety the protection of their lives and estates and the well being of themselves and their posterity and all that can be dear or near unto them And such kind of Protections of Servants in ordinary or extraordinary may be as consistent with Law or Reason as a Writ of Rege inconâ—ulto commanding a forbearance of proceedings in the case of one of the Kings Servants arrested or prosecuted at Law without leave first obtained should not be awarded as the Law and practice thereof is well contented to do it where the King is in Reversion or hath any Title to the thing or matter in demand which may be done at the prayer or request of the party concerned or of the Kings Councel or ex officio Curiae by the Court it self and as well as the Justices allowed a Supersede as to stay an Assise where the Defendant was in the service of the King in his Wars beyond the Seas or to stay Suits against divers Tenants in Northumberland upon Writs of Cessavit to forfeit their Lands for non-payment of their Rents and performing their services to their Lords in regard of the then Wars with the Scots untill the War should be ended or to save a default of the Tenant or Defendant and to adjourn the Suit or Action to another day or where one is convict of redisseisin and taken or arrested by a Capias the King commanded by his Privy Seal that no Process should issue and if any should issue that they should surcease and the Writ was thereupon staid For surely had not such or the like Protections been heretofore accounted to have been as legal as they were warrantable and usual there would not have been an Act of Parliament made in the 5th year of the Reign of King Edward the 3d. to forbid the allowance of them in Writs of Attaint against Jurors or in Writs of Novel Disseisin and is the first Act of Parliament which did in any case absolutely deny the allowance of the Kings Protection imitated and followed by the Act of Parliament made in the 13th year of the Reign of King Richard the 2d to prohibit Protections in the case where upon a default of the particular Tenant in a real Action he in the reversion is to be received to plead in a Suit commenced against him and the Act of Parliament and Penal Law made in the 23th year of the Reign of King Henry the 6th against such of the Kings Purveyors as did take Provisions from the people without paying for them and many an Act of Parliament and Penal Law from thence unto this present Which Protections or Tabulae â—utelares have been by Law and may be granted for a reasonable time unto any of the Kings Debtors untill the Kings Debt be paid with liberty given to their Creditors to proceed in the mean time but not to take out any Writs of Execution or to some that in unruly and troublesome times obtained their salva Guardia or Protection propter quosdam Aemulos where force or incivilities were feared or where upon sudden and unexpected Embargoes
or more protected and secured from the trouble of Law-Suits or disgracefull Arrests whilst they are busied about the King or in his ordinary service then those which are not his Servants in ordinary but as Envoyes Messengers or otherwise shall be imployed upon seldom or emergent affairs When Nehemiah's Commission to rebuild Jerusalem and the Royal Protection of King Artaxerxes by his Letters Patents under his Great Seal whilst he was busied therein cannot conclude that in those Eastern Countries where Artaxerxes had such an Imperium despoticum a large and absolute authority and a people so reverential and obedient that Nehemiah did not before his Journey or after his return enjoy the priviledge and freedom of one of the Kings Cup-bearers and a daily and constant attendant upon his person for it would be as illogical and unconcludent as to argue or believe that a Kings Servant known to be one of his Servants in ordinary without a Pass or Protection is not to enjoy as much priviledge as when he hath a Pass or Protection which can signifie no more then that he is a Servant or imployed as a Servant upon the Kings affairs especially when the only ground and reason of his Protection and upon which it is built or founded was the Kings service and it is not so much because it concerns the Weal-publick which the words in the Kings Protection do not bear or intimate but only in relation to the King and his service and that the protected party is imployed or sent per praeceptum Regis or in obsequio Regis by the Kings command or upon his business for otherwise the subordinate business of the Offices of a Sheriff or a Clerk to a Justice of Peace being something appurtenant to the common good might which they never yet did claim or demand a cessation from Law-Suits or a respite as the Protections for men imployed in the Kings Service have done there being as great a distance betwixt the reason and cause of the priviledge of the Kings Servants in ordinary and their attendance upon his person and affairs relating thereunto and that which is not immediately but remote as betwixt immediate and mediate proximate and remote nor can it be either truth or reason that if the Abbot of Burton upon Trent in the County of Stafford had been imployed by the King beyond the Seas and being as he was none of the Kings Houshold Servants such a Protection granted unto him whilst he was in the Kings service could have bereaved him of the priviledge which King Edward the 4th did grant unto him his Covent and Tenants which were many to be free ab omni vexatione Vicecomitis Staffordiae sive eorum Satellitum in perpetuum from all vexation and trouble of the Sheriff of the County of Stafford or his Bayliffs or Catchpoles or that if the Abbot of Tavestoke in the County of Devon had been sent as many Abbots in those times used to be upon any of the Kings affairs into Foreign parts and obtained the Kings Protection under the Great Seal of England that he and his Servants or Tenants should not be molested or troubled during his absence such an exemption for that small part of time ought to have abridged him of that priviledge which King Henry the second granted to his Predecessors Abbots of Tavestoke and his Successors that he or any of his Monks should not be impleaded or sued at Law nisi coram Domino Rege nisi Dominus Rex nominatim praeceperit but before the King himself unless the King should otherwise especially command or appoint it or should not at his return have enjoyed the priviledge of a Baron if he had held his Land by Barony to have been only summoned and liable to the Process at Law usually granted against Barons or that if the Prior of Spalding in the County of Lincoln had been commanded to go into Scotland or Wales upon any of the Kings necessary occasions and had been allowed a Protection under the Great Seal of England to respite any Actions or Suits at Law in the mean time to be commenced or brought against himself his Servants or Tenants that could after that business ended have debarred him of the priviledge of a Baron or of one holding his Land per Baroniam by Barony to have been only summoned and distrained according to the Process of the Law usually granted against Barons or of that priviledge which K. Richard the first and K. John granted unto the Abbot of Spalding and his Successors that none should implead them their Servants or Tenants de aliquo Tenemento suo for any of their Lands or Tenements nisi coram Rege vel coram Capitali Justiciario suo vel per speciale mandatum Domini Regis unless it should be before the King or his Chief Justice who then resided in the Kings Court or by the Kings special mandate and amounted to no less then the priviledge as aforesaid claimed by the Kings Servants in ordinary not to be arrested without license or leave first given by the King or those Officers of his Houshold to whom it belongeth Nor can it be any thing but a paradox and a very great enemy to reason that obsequium praeceptum Regis the Kings affairs and command imploying Strangers and none of his Houshold Servants as questionless the Abbot of Miravall was not who as appears by the Register of Writs had a Protection granted unto him whilst he was imployed in the Kings service in the parts beyond the Seas should be allowed for a ground and foundation of a Protection and available in the case of one that was not at all busied in a continual attendance upon his Person or Houshold affairs and be denyed his Servants in ordinary who were a latere alwayes imployed about him or his more necessary constant or durable affairs and that it should be a causa causati cause of the effect or thing caused in the protection of a Stranger imployed for some few dayes or weeks in the Kings affairs and not for those which were more near unto him and daily conversant in his immediate and Domestick affairs in whose care and fidelity his Sacred Person and the light and welfare of our Israel is entrusted and that those that were not his Servants should be in a better condition when they are imployed by him and his menial and ordinary Servants in a worse and the same cause not operate at all in the case of his Servants in ordinary who have more need of it and be so vigorous and effective for those that are Strangers and have less need of it as to their persons who being beyond the Seas were out of the reach of any arrest or imprisonment and as to their Lands and other Estates might if they had not had the Kings Protection under the Great Seal of England have defended any Actions by their Attorneys or have been Essoined or reversed any Utlary quia
ultra mare because they were then beyond the Seas or that if the King had sent beyond the Seas any of his Privy-Chamber or Bed-Chamber as hath been not seldom done by-divers of our Kings and Princes to some Foreign Prince or Potentate for the greater credit of their Messages as Balak King of Moab did long before the World was gray or hoary headed when after he had sent Messengers unto the Prophet Balaam and he refused to come unto him he sent yet again Princes more Honourable then they not thinking it fit or honourable to imploy any below stairs or the inferior sort of their Houshold Servants or their Barber as Lewis the 11th of France did in his unfortunate Espargne or saving of charges when he sent him as an Agent or Envoy to the great Inheretrix of Burgundy and the 17. Netherland Provinces which brought him a reproach and loss of those grand expectations which he might otherwise probably have compassed and saved millions of money some hundred thousand mens lives and the trouble and disquiet of the greatest part of Christendom in the since seeking in vain to obtain those rich Countries by Conquest which that Marriage and a more solemn Embassy might have more easily gained such Bed-Chamber man or Gentleman of the Kings Privy-Chamber should have the immunity or freedom not to be arrested or molested by reason of any Actions or Suits at Law whilst he was thus imployed because it was per praeceptum Regis by the Kings command fuit in obsequio Regis and was in his service and yet when he was come and returned to his place and attendance in the Kings Bed-Chamber or Privy-Chamber where he did before daily officiate and was in obsequio Regis per praeceptum Regis in the Kings service unless it could be then understood to be any either reason or sence to believe that he was not in the service of the King or by his appointment when if truth and reason might as they ought to do consort together it was evident he was must be arrested or imprisoned without the Kings leave or license as if he were not of the Kings Bed-Chamber or Privy-Chamber or any of the Kings Servants or if the granting of a Protection by the King to an Earl or any other of the Nobility whilst he was imployed in his Wars or affairs as many have been in Foreign parts should at his return into England be debarred of his priviledge not to be Utlawed or Arrested by Process or Writ of Capias or that Ambassadors sent from hence unto Foreign Kings or Princes without any Writ of Protection which hath ever been thoughâ— needless to be granted unto them should not when they come home enjoy those Immunities and Priviledges were before their going or after their return appropriate and justly due unto them Or that the King may not with as great or greater reason or cause of kindness unto himself and his Servants as well grant his Writs of Protection unto his Servants in ordinary as he hath done unto some Strangers or Foreign Merchants or unto the Prior of an Hospital or some other person with a nolumus or command not to molest or permit to be troubled their persons lands goods or possessions and a suscepimus in protectionem defensionem taking them into his defence or protection or that the service or attendance of his Domesticks or Servants in ordinary either in relation to his person or his affairs subservient thereunto which do concern him and in him the Publick safety and welfare should not claim a greater regard then other more remote And should heretofore be a Supersedeas to some of his Servants elected to serve for the people of their Country in Parliament which with the House of Peers and presence and authority of the King makes it to be the Highest Court of Justice in the Kingdom and next unto the King who is the head life and being of it their greatest and most darling concernment far exceeding any or the most part of Imployments in the Kings extraordinary occasions either at home or abroad which hath been the usual subject matters of the Kingâ— Protections under the Great Seal of England and not now be able or allowed to receive a just and fitting respect and priviledge in his more subordinate and ordinary Courts of Justice When as in the 7th year of the Reign of King Richard the second James Barners being elected a Member of Parliament was discharged by the Kings Writ and a new Writ caused to be made for another election quia est de retinentia Regis familiaris unus Militum Camerae Regis because he was of the Kings Retinue one of his Houshold Servants and one of the Knights of his Chamber attending in or near unto it and in the same year Thomas Morvile was discharged of his election into the House of Commons in Parliament which was superseded quia est de retinentia charissimae Dominae Matris nostrae Johannae Principissae Walliae for that he was in the service or retinue of his Mother the Princess of Wales But that and all which hath been said and evidenced will it seems not yet be enough to remove the pride of heart of such as take a delight to arrest and imprison the Kings Servants and Attendants without license or leave first granted for Debts or other Actions to which they are entituled or perswade them to abandon that unmannerliness and an Objection which they have lately found out as they think to support it That if the number of the Kings Servants were less there would not be so many to demand their Priviledges or cause their Creditors to complain against them and that if any of the Kings Servants in ordinary be so without leave or license arrested or imprisoned whereby the King should or might lose their service he was to provide others in their places And that any of the Kings Servants in ordinary waiting upon him by turns or courses for some of them do not may without leave or license be arrested in the intervals of their waiting or attendance which undutifull and uncivilized opinions too near of kin to the Principles of Wat Tyler and Jack Cade and their Clownish Associates might have been laid upon the Levelling Dunghill and ought to be buried with their illiterate and ungodly Levelling Principles which hath so long afflicted this Nation and so greatly helped to ruine and undo the peace and happiness of it the Adjutants or Authors whereof may upon a more sober and modest enquiry easily find CHAP. X. That our Kings some of which had more then his Majesty now hath have or had no greater number of Servants in ordinary then 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 license as aforesaid to be arrested in the intervals of their
Anno 1630. Herbert Croft Batchelor of Divinity now Bishop of Hereford and did not refuse divers of the Sons of the Nobility who sought to partake of the honour of access unto his Majesty and the more select rooms of State in his Court which in that of the Kings of Spain is not thought fit to be communicated but to some of their especial Attendants to be sworn Gentlemen Extraordinary of his Privy-Chamber as in the year 1631. the Lord Matravers eldest Son to Thomas Earl of Arundel and Surrey and Sir William Howard Knight of the Bath now Viscount Stafford his Brother and in the year 1638. the Earl of Kildare the first Earl of Ireland who could not be blamed for their inclinations or tendency to the center of Honour when as long before the Conquest or fatal period of our Saxon Ancestors King Alfred had many of the Sons of the Nobility educated and brought up in his Court and that noble and well becoming custom received and met with in many ages after so great an encouragement as the young Lords or Nobility had a constant Table or dyet in the Court untill in the Reign of King Edward the 6th the perswasions of a needless and unhappy parsimony did put an end to that part of the Royal munificence which King Henry the 3d. in some hundred years before would not in his greatest wants of daily necessaries occasioned by some of his unruly Barons when he took such relief as some Abbeys would afford him quit that part of the honour of his Court or Houshold nor did our late King of blessed memory deny the like honour of his Privy-Chamber to divers Gentlemen of note or great esteem in their Countries as Sir Arthur Capel Knight aâ—terwards Lord Capel that heroick and loyal Martyr for his King and the Fifth Commandment of his Heavenly King charged upon all Mankind in the Decalogue Sir Thomas Richardson Knight Son of Sir Thomas Richardson Knight Lord Chief Justice of the Court of Kings-Bench or Sir Thomas Roe Knight a learned and well experienced Embassador to the Mogor or Mogull that great Prince in the East-Indies and to several States and Kingdoms in Christendom Sir Fulk Hunkes Knight and Sir Ferdinando Knightley Knight two well experienced Commanders in the English Regiments in the Netherlands or United Provinces Sir Edward Dearing Knight one of the Members of the House of Commons in Parliament in the year 1641. and unto Sir William Waller Knight who afterwards bitterly repented the vain-glory of being a Conqueror of some of his Soveraigns Forces endeavouring to defend him and their Laws and Liberties in the late Rebellion and to some others who could afterwards stain their formerly more loyal Families in that horrid Rebellion and imploy their time and Estates against their King which had â—o much honoured them or to admit into his service as a Servant Extraordinary Edmond Cooper a Drummer John Houghton a Chirurgeon or some excellent Picture-drawer as the famous Sir Anthony van Dike or some Foreign curious Engineer Gunsmith or other excelling Artificers who without some such encouragements would not have benefited our Nation with their skill and residence and was in that Prince of blessed memory and will be in our gracious Soveraign no less allowable than iâ— was in King David to take into his Family as an Extraordinary when his affection and gratitude prompted him unto it Chimham the son of the good old Barzillai when many of the Yeomanry of England have besides their Servants in ordinary some that are as extraordinary and work a great part of the year with them And the Nobility and Gentry of England sincâ— their restraint of giving Liveries by several Acts of Parliament to prevent the too freequent use of that in making of parties and factions in one of which viz. that of the first and second year of the Reign of King Henry the 4th cap. 21. it is provided as hath been mentioned That the King may give his Honourable Livery to his menial Knights and Esquires and also to his Knights and Esquires of his retinue who are not to use it in their Counties but in the Kings presence and the Prince and the Nobility coming unto the Court and returning from thence were specially excepted are not at this day debarred the moderate use of Liveries or some as extraordinary Servants to be imployed upon several occasions to retain unto them as the Lord Mayor of London is not without the attendance of Livery-men of the Companies or Fraternities of Trade or such as he shall select out of them in some grand Solemnities as the meeting or welcoming of the King to his City or Chamber of London at his return from a Progress or from Scotland to conduct into the City a Russian or Persian Embassador and it hath been ever accounted to be a Royal or honourable way of Espargne to have some to be extraordinary Servants without the charge of Bouche of Court or annual salaries to be alwayes in readiness at grand festivals or occasions and those Citizens of London and men of the Mysteries of gain and Trade who have aggrandized their Credits and Estates by the Sun-shine and warmth of the residence of the King and his Courts of Justice can when a little before they could busie themselves in needless murmurs and complaints against the Priviledges of the Kings Servants in ordinary and extraordinary think themselves to be no mean men in their Parishes and Companies if they can procure the favour to be admitted the Kings Servants extraordinary as he shall have occasion to be cozened in such Manufactures or Wares as their Trades afford in so much as it is become the preferment and ambition of one of every Trade great or little some few only excepted in the City of London to be entituled to be the Kings Servant as the Kings Grocer Brewer Apothecary Mercer Draper Silk-man Taylor Printer Stationer Bookseller Girdler a Trade now altogether disused Shoomaker Spurrier c. and are well contented to enjoy all the Priviledges appertaining to the Kings Servants as not to bear Offices in their Parishes or Custard-cram'd Companies and not to be arrested without licence And their Wives swelling into a tympany of Pride will be apt enough to think their former place and reputation too far beneath them and not let their Husbands purse have any rest or quiet untill they can be fine enough to go to the Court and see the Lords and Ladies their Husbands fellow Servants And they which cannot attain to that honour to be such a Servant of the Kings extraordinary for they cannot be truly said to be any thing more than the Kings Servants extraordinary when as he as to many of them hath no daily or but a seldom and occasional use of them and where he hath most it is not constantly or often do think it to be worth the utmost of their endeavours to obtain the honour and priviledge of being the Queens
granted that no Purveyance be but where payment is made at the taking that it would please him that that Ordinance be holden as it was granted The King doth not in express terms answer that the party should take his course at Law but only That it pleaseth the King that he that findeth himself grieved shall pursue it and right shall be done unto him In the 47th year of the Reign of King Edward the third the Commons did in Parliament although the Statute made not long before in the 36th year of his Reign cap. 2. gave them sufficient remedy and power to resist petition the King That the Statute made whereby buyers for the Kings Houshold should pay readily should stand and that no man be impeached for râ—sisting them therein To which the King answered The Statute therefore provided shall be kept and who will complain shall be heard In the 50th year of the Reign of the said King Edward the third the Commons in Parliament did petition the King That the Clarks of the Market for the Kings Houshold when as the Common Law and the Statutes of 9 H. 3. cap. 26 and 14 E. 3. cap. 12. had before given them sufficient remedy against Clarks of the Market should not by extortion take Fines in gross or certain of any Towns but that there might be appointed a certainâ—y of weights and measures according to the Standard and Statutes thereof made The King answered That he would be thereof advised In the same Parliament the Commons although the Common Law and the Statutes made in the 28th year of the Reign of King Edward the first and the 5th and 10th years of the Reign of King Edward the third had provided sufficient remedies did complain against the Court of thâ— Marshalsea to which the King answered â—he would charge the Steward and Officers to make redress And in the Parliament aforesaid petitioning the King That by Protections cum â—lausa Volumuâ— many men were undone and praying that one made to Jacob Jacomino a Lombard might be repealed and no such hereafter granted The King answered That upon examination of such had by the Councell it should if need be repealed And in the year next following petitioning the King in Parment That the Protections of such as did lye at Calais or about Picardy only to delay such as did sue them might be repealed and no such from thence granted The King answered That if his Councell should be informed of such covin it should be redressed And the Commons in Parliament in the same year of the Reign of that King though by a Statute made in the third year of the Reign of King Edward the first cap. 28. a Statute made in the 28th year of the said King cap. 11. a Statute made in the first year of the Reign of King Edward the third cap. 14. another in the 4th year of the Reign of the aforesaid King cap. 11. a Statute made in the 20th year of the said King cap. 4. remedies were for the same provided and there were divers Writs framed in the Register and to be thereupon had of course petitioning the King That none of his Officers be maintainers of any quarrels which the said Statutes did severely prohibit in the Countries on pain to lose their Offices and to answer double to the party grieved The King answered That he had forbidden his Officers so to do and if any be grieved he should be heard And in the same year when they had remedy given them by the Law against any the unjust dealing of Purveyors did petition the King That the Statutes made be not repealed but by assent of Parliament and that the Statute of Purveyance might be executed To which the King answered they cannot and that for the Purveyors the Law made should stand In the first year of the Reign of King Richard the second the Commons when there were Laws in force which might have saved them that trouble did petition the King in Parliament That no Officers of the Exchequer or of the Kings Houshold do maintain any quarrels in their Countries and that the priviledge of the Exchequer might be declared To which the King answered touching maintenance order is before taken and for further declaration it hath been used that all Officers of the Exchequer and Servants with them abiding should in all personal Actions be sued and sue in the Exchequer and not elsewhere In the same Parliament the Commons petitioning the King That the Jurisdiction of the Marshalsea which is a Court greatly concerning the Kings Houshold might be limited and that all men might have their Liberties allowed as well within the Virge as without and that no Court of Antient Demesne be thereby disturbed The King answered The Marshalsea shall have such Jurisdiction as heretofore and who will complain shall be heard And petitioning also the King in Parliament That every man might upon the Kings Protections averre that the party was not in the Kings service according to the 〈◊〉 of his Protection The King answered Tha◠〈◊〉 Averment lay not in such cases In the same Parliament the Citizens of London thinking to 〈◊〉 unto their heaâ—s of Liberties more then 〈◊〉 fitting or right reason could grant them did with much partiality petition the King That no Protection Royal might be allowed in Debt Accompt or Trespass wherein a Freeman of London should be Plaintiff Unto which as to Victuals bought after the voyage or service whereof the Protection mentioneth or for Debt or Contract after the date of such Protection purchased the King granted and it was enacted accordingly In the third year of the Reign of that King when but the year before the hindring and delaying of men in the pursuit and recovery of their just Debts was in the Parliament of the second year of that King in the case of Robert de Hawley pursued upon an arrest in an Action of Debt and slain at the High Altar in Westminster Abbey being then a Sanctuary to which he fled declared before the King in Parliament to be a grievous sin the Judges and Lawyers of the Land and the Doctors of Divinity Canon and Civil Law assenting thereunto And the Doctors of Divinity Canon and Civil Law upon grave and well advised deliberation delivering upon Oath their opinions That in case of Debt Accompt or Trespass where life or member was not in question no Sanctuary or Immunity of Holy Church ought to be allowed and in high expressions further said que Dieu salvez sa perfection ne le Pape salvez sa sanctitee ne nul Roy ou Prince purroit granter tiel privilege that God saving his perfection nor the Pope saving his holiness nor any King or Prince could grant such a priviledge Et si aucun Prince vorroit tiel privilege granter and if any Prince should grant any such priviledge the Church whose actions should be according to vertue was not
to accept of any priviledge whereby such a grievous sin might arise to delay or hinder any man voluntarily of his just Debt William of Mountacute Earl of Salisbury having a great Plea of Land long depending for the Honour and Castle of Denbigh in Wales against the Earl of March in Parliament upon a Writ of Error Sir John Bishopson Clerk and Servant to the said Earl of March in the absence of the said Earl then being in Wales preparing himself to go into Ireland where he was appointed to be the Kings Lieutenant shewed the Kings Protection made to the said Earl for one half year which being read was allowed In the 6th year of the said Kings Reign the Commons in Parliament not desirous as it may seem to take their course in Law which several Acts of Parliament had allowed them did pray That the Statutes of Purveyors be observed and that ready payment may be made To which the King answered That the Statutes therefore made should be observed In the 7th year of the Reign of the aforesaid King the Commons in Parliament petitioning the King That remedy might be had against Protections The King answered That the Chancellor upon cause should redress the same In the 8th year of that King the Commons in Parliament did pray the King That remedy might be had against the Clerks of the Exchequer whose business under the Treasurer being to collect and gather in the moneâ—s and profits of his Revenue might in some sort be taken to be a Latere and as his Servants who would not allow the pardons of King Edward the third without great charge to the parties Unto which the King answered That he who hath cause to complain may do so and be heard In the 9th year of his Reign the Citizens of London did in Parliament petition the King That the Patent lately made to the Constable of the Tower of London who by colour thereof took Custom of Wines Oysters and other Victuals coming by water to London wherein their Charter and the Common Law would have relieved them might be revoked which was granted In the 10th year of the said Kings Reign the Commons in Parliament petitioning the King That no Protection to delay any man be granted The King answered That who should especially complain may find remedy at the Chancellors hands And in the same year and Parliament praying That no Protection be granted from thenceforth in Assise or Novel Disseisin or other plea of Land The King answered If the same be demanded he will be advised before the grant And in those and other Parliaments where within the virge and compass of loyalty and modesty they were by the favour indulgence and allowance of our Kings permitted by their Petitions Procurators or Representatives to speak more plainly than at other times or in other places in the representing of any grievances did it with such an awful regard and tenderness As conceiving themselves to be grieved by a more than ordinary number of the Kings Serjeants at Arms bearing the Royal Masses or Maces they did in the aforesaid Parliament of the 10 th year of the Reign of the aforesaid King Richard the second Petition the King That there might be no more Serjeants at Arms than had been heretofore and that for doing otherwise than they should they might be expelled And were in the 20th year of his Reign so carefull of his Officers as they did in Parliament complain That they were excommunicated for making Arrests or Attachments in the Church-yards and prayed remedy To which the King answered Right shall be done to such as be especially grieved In the second year of the Reign of King Henry the 4th petitioning the King in Parliament That no Protection be granted to any person Religious The King answered That the Protections with the clause Volumus granted to them shall be revoked and they shall have such Protections granted unto them In the same Parliament the Commons did pray That no man be kept from Justice by any Writ or other means obtained from the King by sundry suggestions on pain of twenty pounds to the obtainer of the same whereunto the King answered The Statute there appointed shall be kept and who doth the contrary shall incurr the pain aforesaid In the fifth year of that Kings Reign they petitioned in Parliament That no Supersedeas which may be understood of Protections be granted to hinder any man of his Action whereunto the King answered The Statute therefore made shall be observed In the 7th and 8th year of his Reign the Commons in Parliament although there were then divers Laws and Statutes in force to quiet their sears or relieve their grievances did petition the King That none about his Person do pursue any suit or quarrel by any other means than by the order of the Common Law and that none of the Officers of the Marshalsea of the Kings house do hold Plea other than they did in the time of King Edward the first By an Act of Parliament made in the 7th year of the Reign of that King grounded upon some Petition to that purpose No Protection was to be allowed unto Gaolers of the Marshalsea Kings-Bench Fleet c. that do let Prisoners for debt go at large and afterward purchase Protections which admitteth such Prison-keepers capable of Protections where they were not guilty or to be sheltered from the punishment of such offences In the 7th and 8th year of the Reign of that King the Commons in Parliament although by an Act of Parliament made in the second year of the Reign of that King Every Purveyor that did not make ready payment for all that he took was to forfeit his Office and pay as much to the party grieved Petitioning the King That payment might be made for Victuals taken by the Kings Purveyors from the time of his Coronation The King answered He is willing to do the same and that all Statutes of Purveyors be observed And in the 11th year of his Reign petitihning him That payment might be made for Victuals taken by his Purveyors he promised convenient payment In the third year of the Reign of King Henry the fifth the Commons in Parliament although they had before sufficient remedies by Law did Petition the King That the Purveyors may take no provisions in the Market without the good will of the party and ready money To which the King answered That the Statute therefore should be observed In the Parliament holden in the 4th year of the Reign of King Henry the fifth the Commons did Petition the King That none of his Subjects be fore-barred of their due debts or suits for the same by colour of protections granted to any Prior Alien but during such time as they should serve the King beyond the Seas unto which he answered The Prerogative and Common Law shall be maintained In the 20th year of the Reign
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 Venire facias she did cast a common Essoin and at another day was Essoined de Service del Roy and had another day given by the like Essoin but not bringing her Warrant the Court would not turn it to a default but in regard of great delay and damage alledged taxed the 20 s. allowed by the Statute to 40 s. and the Nisi prius was granted In the 22th year of his Reign in an Assise the King by his Writ reciting that it was ordained by him and the great men of the Land that an Assise brought by any which was in the service of the King should from thenceforth be continued testifyed that the Defendant was in the Kings service at Calais and commanded the Judges to continue the Assise and the Writ was that although that the name of the said Defendant was afterwards inserted in the Writ Original the Assise should continue as long as the Defendant remained in that imployment or that the King should otherwise command whereupon the Assise was continued until the next Assise notwithstanding the Statute which commands the Court not to surcease by any command of the great or lesser Seal In Michaelmas Term in the 22th year of the said Kings Reign a Woman was Essoined de Service le Roy quia Nutrix Isabellae filiae Regis Et allocatur In Trinity Term in the 28th year of that Kings Reign in an Action of debt the Defendant after he had been attached by his body gave bayl and was therefore adjudged to be in Custody but because the Protection was quia profecturus and the Judges at all times have used to allow such Protection it was allowed In Michaelmas Term in the same year a Woman was Essoined de Service del Roy quia Nutrix Domine Elizabethae filae Regis Angliae and the Demandant alledging that she to whom she was Nurse was of full age and so is not to be understood to have a Nurse and prayed that the Essoin might be quashed it was answered by the Court she could not be a party to that averrment whereupon the Essoin was adjudged and adjourned In Trinity Term in the 29th year of the aforesaid Kings Reign Essoin de Service del Roy being mistaken was amended Upon a Protection quia profecturus the King signifying by his Writ that the party was maymed and could not go in his service commanded the Justices to proceed in the Action In the same Term in an Action of debt brought against John Clinton Executor of William Clinton Earl of Huntington a Protection being brought for John Clinton the word Executor being interlined the Court notwithstanding the Allegations made against it allowed it A Protection quia profecturus was brought after an emparlance when the Defendant was come to an answer and was of an elder date than the appearance yet notwithstanding was allowed In Hillary Term in the said year a day was given upon a Protection after a grand distress and in the said Term Thomas Dallirine brought a Writ of disceit against one and counted that having brought a Writ of Formedon against him and day was given untill the Octaves of St. Michael the Tenant brought a Writ of Protection to endure for a year suggesting that he ought to remain at York whereas he remained at the time when he should have appeared in Court at Compton in the aforesaid County and continued there by the space of a Month and traversed that he was not in the service of the King to his damage of forty pounds to which the Defendant pleaded that he was in the service of the King according to the purport of the Protection and traversed that he was not continually at Compton aforesaid and the truth being that he went to York and remained there one week in every month the Court left it to a Quaere what was to be done therein and what kind of Plea he might have in such a matter In Trinity Term in the same year in a Writ of ravishment de gard against divers a Protection was brought for one which discharged and put without day all the others In the 43th year of that King a Protection was allowed for the Husband and Wife Where a man was Essoined and afterwards brought a Protection quia en Service le Roy Thirning Justice said that the Essoin was for the service of the King and the Protection proveth that he is in the service of the King and the one is dependant upon the other and therefore awarded that the Protection should be allowed In Easter Term in the 7th year of the Reign of King Henry the fourth a Protection being cast in a Writ of Formedon quia moraturus in partibus VValliae the Justices were in doubt whether it were to be allowed for that VVales was within the Realm and took time to advise And in the mean time although the time of the Protection was expired would not suffer the Action to pass by default but awarded a Resummons In Michaelmas Term in the 11th year of the Reign of that King it was adjudged that if a Purveyor took Victuals for the Kings Houshold and be afterwards sued he shall have ayd of the King In Easter Term in the same year it was allowed by the Court to be Law that if a man give bayl upon a Capias and after bringeth a Protection he and his Bayl are excused In Trinity Term in the 12th year of the said Kings Reign it was adjudged that in whatsoever Plea an Essoin doth lye there also lyeth an Essoin pour service le Roy and two Essoins of the service of the King do not lye but one after the other In Hillary Term in the same year it was agreed that an Essoin pour service le Roy may be â—uâ—t upon a Petit Cape and if he which doth cast the Essoin doth not make it good or bring his Warranty a Capias was to be awarded against him to answer the disceit And it is to be observed that antiently before it was taken away by an Act of Parliament the Essoiner in a common Essoin was to make Oath In Easter Term in the third year of the Reign of King Henry the 6th a Protection being cast at the Nisi prius and it being for one year and the party coming again within the year a repeal was obtained and two precedents shewed that in the like case Protections were repealed whereupon by advice of the Judges a resummons was granted and it was alleadged that the Plaintiff was at no mischief because he may have his writ of disceit In Trinity Term in the same year at an Alias nisi prius the Defendant being Essoined quia in servitio Regis it was denyed because there was a great difference betwixt an Essoin and a Protection of the King for that by the Kings protection the King taketh the party into his protection which is
of record under his Seal In Easter Term in the fourth year of that King in an Action of Trespass after a distress awarded against the Jurors and the Array challenged a Protoction was after a grand debate allowed Martin one of the Judges of the Court of Common Pleas going to the Justices of the Kings Bench to ask their advice and from thence into the Exchequer Chamber to Juni Chief Baron In Michaelmas Term in the 19th year of the Reign of that King a man being taken by a Capias had a Protection allowed quia moraturus for the victualling of a Fort in Scotland upon a probability that he came to London to buy victuals and that issue might be taken thereupon and a repeal obtained In Hillary Term in the same year Newton Justice said that if the Demandant cast a protection it lyeth not yet an Essoin of the Service of the King doth And where the King commandeth an Attorney to do him service whereby he appeared not and the Client loseth in the mean time his land and he brings a Writ of disceit against him then it would be against reason that the King should compell him to do him service and that he should not be Essoined for that service but in such a case it seems to be usual to record the Kings service and in that case the Essoiner shall be sworn that he was in the Kings service And that a woman may be in the Kings service for that she is Nurse or Landress and a man as his Carver In Michaelmas Term in the 22th year of the Reign of that King in an Action inter Brookesby and Everard Digby al jour de nisi prius a Protection was brought and although Paston was of opinion it was not allowable because it did not agree with the Record yet Ascue was of opinion that if the Protection said suscepimus in Protectionem it was to be allowed In Michaelmas Term in the 27th year of the aforesaid King an Essoin cast for one who was gone into the Holy-land was refused because six months were passed and the Defendant should be allowed a year and a day and it was said by the Judges that it was the like where the party was in service del Roy yet it was allowed to be good in a common Essoin and a common Essoin was cast accordingly And in an Action brought in the Exchequer by a Denizen against two Aliens and the Jury adjourned a Protection was brought by the one bearing date the first day of the Nisi prius and by the second bearing date the second day and both allowed as it was in a like case and as it was held by the Judges of the one Bench and the other in the case of the Lord Hungerford In Michaelmas Term in the 8th year of that Kings Reign Danby Justice said in the case of Sir Robert Hungerford that in one and the same day the Defendant may cast many Protections and it was said that no Protection quia profecturus purchased pending the plea is allowable if it be not in a Voyage Royal or with the King himself or for great business of the Realm as appeareth by the Statute made in the 13th year of the Reign of King Richard the 2d cap. 16. and Prisot chief Justice did bid the Defendant sue to the Privy Seal and bring a Certificate that his Captain by Indenture was to serve the King in his warrs which being shewed and it appearing that he was to go into Norusandie to serve under such as the King should appoint but because it appeared not by the Indenture nor the Protection that it was in the case of the Statute the Protection was not allowed In the same Term Richard Vere bringing a Protection quia moraturus super vitulationem ville Calesie and the Plaintiff averring that he was within the four Seas and not in the Kings service the Plaintiff was ordered upon a resummons to prove his averment In Easter Term in the 30th year of that Kings Reign after an Imparlance the Defendant bringing his Protection quia moraturu super salva custodia Castri Domini Regis de B. in partibus transmarinis that he was imployed in the safe custody of the Castle of B in the parts beyond the Seas and was afterwards seen in Court it was said that if a man protected be afterwards seen in England the Plaintiff may sue forth the Kings Innotescimus to repeal the Kings Letters Patents for the Protection And that if a man bringing his Protection at the Nisi prius if betwixt that and the day in bank the Protection be repealed there shall be a resummons sued and Danby said that the Protection until the repeal was alwayes allowable In Easter Term in the 35th year of the Reign of that King it was agreed to be law that where Justices of Nisi prius have no power to allow or disallow a Protection they ought to surcease In Hillary Term in the 38th year of the Reign of the said King a Protection being cast for one that was committed to the Fleet and had a Cepi corpus retorned against him Moyle Justice alledged that he might notwithstanding be in the Service of the King whereupon the next day after he was mainprised and the Protection was allowed until the Court should further consider of it In Hillary Term in the 39th year of the Reign of the said King a Protection being disputed because it wanted the usual form it was alledged that there needed no special Protection to go to Rome for that the Embassadors or Procurators of the King who go and remain there for the profit of the King and his Realm have never used to have such Protections and if they had it would have been seen before that time and that the King by his Prerogative may take a man into his protection where another is not to be disherited and Moyle one of the Justices of the Court of Common Pleas then said that the King might grant a Protection for a year and that being elapsed might grant another for the like Term c. but not at the first and that a Protection quia profecturus doth not lye pendente placito depending the Plea if it be not in a Voyage Royal or business of the Realm In Michaelmas Term in the second year of King Edward the fourth at the return of a Petit cape against the Husband and Wife which is a Judgement by defalt the Husband did cast an Essoin of the Service of the King which was allowed and it was in that case said by Moyle that a Protection of the King differed from an Essoin of his Service for that the intent and effect of the Protection is that the King is the parties Protector and hath taken him into his protection and defence In Hillary Term in the 7th year of the Reign of that King the Judges were of opinion that
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
the Martyr the drawing aside of the curtain of State and the dispute of the Kings power of committing any one for contempts against him or his Authority which every Justice of Peace and Master of a Company of Trade in London can be allowed to do by the peoples misunderstanding of the Arcana Imperii secrets of State and necessary rules of government an unhappy fancy and spirit of opposition so intoxicated many of them as they have believed it to be law and right reason that if the King will not so soon as they would have him give leave to Arrest any of his Servants the Law and his Courts of Justice are to do it that if the King should by such a way of prosecution be inconvenienced by the want of their service it is by his own default in making so ill a choice of men indebted to attend him or if they being so Arrested cannot perform their duty he is to provide such as may better do it and if the King should cause any to be committed that had Arrested any of his Servants without licence they were upon his Habâ—as Corpus to be bayled by the Judges of some of the Courts of Law at Westminster and left at liberty to go to Law with him if they could tell how or to incourage as many as would follow that evil example to misuse his Royal Prerogative which without any stretching or dilating of it to the very confines or uâ—most bounds of its regal Jurisdiction is legally warranted by the design and reason of publique good the preservation of every mans estate and property and the good at one time or in something or other of him that thinks himself the most delayed or injured in his humour or expectation for it ought to be every where reason and so acknowledged that as long as there is a King and Supreme Governour who is to take care of the universality of the people subjected born or protected under his government he is not to want the means wherewith to do it and that in order thereunto his service must needs be acknowledged to be for publique good and the exemptions and privileges belonging thereunto no less than a Salus populi the great concernment of the peoples peace protection welfare and happiness and should be the Suprema Lex that great Law in and by which the means of goveâ—nment and the Royal Prerogative was and is founded and established and that such a cause built and sustained by the rules of right reason and justice ought to be every where reason and justly entituled to that Axiom manente causa non tollitur effectus the cause alwayes remaining constant and unalterable the effects and operation naturally from thence arising are necessarily to follow and be allowed and that the cause of priviledge claimed by our Kings the cause and fountain of all exemptions and priviledges so largely given to many of their people should not in the case of their own Servants have its course or passage stopt or diverted When from that Spring and those causes which have fertilized and gladded the Vallies of our Israel have sprung and arisen those necessary priviledges which the Nobility Peers and Baronage of England have antiently enjoyed in their personal freedome from Arrests or Imprisonment of their bodies in Civil Actions Pleas or Controversies and from Common Process or any Utlaryes which might trouble them or their high Estates not only for the reason given in the 11th year of the Reign of King Henry the fourth by Hull or Hulls that in Actions of Debt or Trespass a Capias will not lye against an Earl or any of like Estate because it is to be intended that they have Assets and a great Estate in Lands whereby they may be summoned and brought to answer or as many misled by that opinion do and would yet understand it But principally CHAP. XV. That the Dukes Marquesses Count Palatines Earls Viscounts and Barons of England and the Bishops as Barons have and do enjoy their privileges and freedome 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 IN regard of their service to their Prince and a not seldome personal attendance upon him and the honour and dignities thereunto allowed and appertaining to those Illustrious and high born Dukes Marquesses Earls Peers and Nobility who are accounted to be as extraordinary Servants not as the word Extraordinary hath been of late times misused by applying it unto those who were but quasi Servi scarcely Servants or but listed and put into the Rolls of the Kings Servants when they are neither known to him or ever were or intended to be in his actual Service and honourable Attendants of their Prince as well in times of Peace as emergencies of War and as Generals or Commanders of their Armies in times of War and therefore the Emperour Justinian in his Letter or Epistle to Narses a great General or Commander of his Army mentions Aulus Anduatius C. Tubero to be sub Narsetis Ducatu as Souldiers under the conduct of Narses making the word Ducatus which in after ages only signifyed and was applyed to a Dukedom then to denotate no more than an Army or Command only of it And the Latine word Dux since used for Duke was as Sir Henry Spelman well observeth antiently nomen officiale a name of Office or Dux delegatus vel praefectus exercitus postea feudale by reason of the Lands which were annexed to its honour by reason of that service afterwards honorarium meerly Titular or honoured with that Title in being heretofore his Chieftaine or Leader of an Army And so were the Marquesses in those antient times who were as Capitanei Generals or great Commanders in the Empire or kingdome and were as to that by reason of their honorary possessions partakers in some sort of the Royal Dignity Whereby to defend the Frontiers the Title and Military Office thereof being about the year 1008. after the Incarnation of our blessed Saviour by the Emperour Henry sirnamed Auceps of the house of Saxony instituted to defend some of the Frontiers of Germany against the Incursions of the Hungarians was so little known or respected in England about the Reign of King Richard the second as he having created Robert de Vere Earl of Oxford Marquess of Dublin in Ireland and afterwards in the 21th year of his Reign John Beaufort Earl of Somerset Marquess of Dorset which dignity being afterwards taken from him by the tempest and change of those times in the beginning of the Reign of King Henry the fourth and the Commons in Parliament in the fourth year of that Kings Reign petitioning that he might be
Officiate under them as their Deputies believed their Heirs and Lands to be blessed in the continuance and enjoyments of such Offices as might but sometimes bring them into the notice and affairs of the Prince and Emperours as the Baron of Papenheim in Germany and his Heirs to be Sub-Marshall to the Duke and Elector of Saxony the Baron of Limpurgh Vice-Butler to the King of Bohemia and the Baron of Falkenstem Vice-Chamberlain to the Elector of Brandenburgh who hath also an hereditary Marshall and the Electors of Mentz Colen and Triers the like and Christophorus Leisserus a Baron was Culinae Magister at the Coronation of the Emperour Mathias in Anno Domini 1612. The Viscounts a Title no longer ago than the Reign of King Henry the sixth as our great Selden saith turned into a Dignity Titular or Peerage being formerly and long after the Conquest but the Deputies of the Earls in their several Counties for the Administration of Justice with which the Earls were entrusted since câ—ntra distincts to the Title or Honour of Viscount and but a Sheriff or Officer of the Kings for the execution of Justice and so well liked of before that new Title of Viscounts was brought in betwixt the Earls and Barons of England as Hubert de Burgo afterwards Earl of Kent was in the Reign of King John not only Chamberlain to the King but at one and the same time Sheriff of Norfolk and Suffolk and the noble and antient Family of Cliffords accompted it as a favour of the Crown to be hereditary Sheriffs or Ministers of Justice in the County of Westmerland where they had Lands Baronies and honourable Possessions and having afterwards a greater honour by the Earldome of Cumberland conferred upon them disdained not to let the one accompany the other in the service of their Prince The Barons whether as the Judicious and Learned Sir Henry Spelman informs us they be feudall as gaining their honours by their Lands and Baronies given them to that purpose which in our Records and antient Charters are not seldome mentioned by the name of Honours as the Honours of Abergavenny Dudley c. or by Writs summoned to Parliament or by Patents created only into that Titular Honour either of which made a Tenure in Capite for otherwise they could not sit and enjoy their Peerage in Parliament the Kings greatest Councel are and antiently were accompted to be in their several Orbes Robur Belli the strength and power of Warr and as Barones or Vassalli Capitales men of greater estate or note than ordinary and were as the old Barones 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Barangi wbo did with their Battel-Axes attend the Emperours of the East in their Courts or Palaces as their Guard sometimes on Foot and at othertimes on Horse-back and were as Codinus saith reckoned inter Honoratiores Officiales the most honourable Offices of the Court attending near the Emperours either at their Meat or Chappel or publick Addresses and in the Kingdome of Bohemia which is now no more than elective and where there are neither Dukes nor Marquesses and but few Earls the Title of Baron is of so high an esteem and the Barons of that Kingdome so jealous of any thing which might diminish it as when a Duke who is a Stranger comes to be there naturalized they do first oblige him to quit or renounce the using of his Title of Duke there and to content himself only with the Title of a Baron of Bohemia and saith Sir Henry Spelman sub Baronis appellatione recte veniunt our Dukes Marquesses Earls and Viscounts are comprehended under the name of Baron Cum vel maximus as the experience and practice of our Laws and Kingdome will evidence principis sit Vassallus when the greatest of them is but a Liege-man and Vassâ—l of the King eique tenentur homagii vinculo seu potius Baronagii hoc est de agendo vel essendo Barone suo quod hominem seu Clientem praestantiorem significat and is by the Bond of his homage or Baronage to do all things as his Baron which signifieth to be his Liege-man and more extraordinary Subject holding his Lands of him upon those beneficiary gainful honourable conditions and depending upon him and his Patronage it being to be remembred that those honorary possessions and the owners thereof did by that dependency well deserve that encomium and observation which John Gower made of them about the Reign of King Richard the second that The Privilege of â—egalie was safe and all the Barony worshipt was in his Estate And it is well known that our antient Kings in all their Rescripts Grants or Charters unto Abbyes or any other of their people directed them Archiepiscopis Episcopis Comitibus Justiciariis Baronibus Vicecomitibus Ministris suis to their Arch-bishops Bishops Earls Barons Justices and Sheriffs and other their Ministers the word Ministris being in the language of the times not only since but before the Conquest not infrequently appropriate to the Kings houshold Servants as the Charters and Subscriptions of witnesses of many of our elder Kings will abundantly evidence and the Barones Majores stiled by our Kings not unfrequently in many of their Charters Barones suos Barones nostros Barones Regios their Barons and the Kings Barons as William de Percy and many other have been called though by such Charters they could be no more concerned in it than to be Assistant in the performance and obedience of the Royal Mandates and in many Acts of Parliament have been stiled the Kings Nobles or Nobility the Deâ—neâ— Thanes or Nobility saith the eminently and universally learned Selden denoting a Servant or Minister was as well before as sometimes since the Norman Conquest Officiary Personal and Honorary and the Possessions of the Thanes from whence our Barons and Baronies were derived were held by the Service of Personal Attendance Et certissimum est saith that great and eminent Antiquary Sir Henry Spelman that Barones Majores the greater Barons which hold of the King in Capiti Judiciis praefuere Aulae Regiae did usually sit and determine causes or controversies in the Kings Court or Palace as the Barons of the Coife in the Exchequer who were heretofore Earls and Barons of England do at this day in Westminster Hall judge and determine of matters concerning the Kings Revenues And as the Lords of Mannors in their Court Barons do admit none to be Judges in those little Courts but their Tenants who are Freeholders and which do immediately hold of them are stiled and said to be of the Homage and do subserviently manage and order their Affairs therein as very antiently they did consilio prudentum hominum militum suorum by their presentments and judgements so not much differing from the Laws and Customs of the Germans where by the Court of Peers are understood causarum Feudalium Judices
a Caesare constituti qui sine provocatione cognoscebant the Judges appointed by the Emperour to hear and determine without appeal matters concerning their Lands and Territories in the House of Peers in Parliament being the highest Court of the Kingdome of England none were there admitted or did administer Justice nisi qui proximi essent a Rege ipsique arctioris fidei homagii vinculo conjuncti but such as were near unto the King held of him in Capite and were therefore called Capitanei Regni as Sir Henry Spelman saith Captains of the Kingdome and Peers being obliged and bound unto him by Homage and Fealty that highest and most honourable Court of the Kingdome wherein the Judicative Power of Parliament under the King their Head and Chief resides for the lower house or Representative of the Commons are but as a Court of grand Enquest to exhibit the grievances of the Nation and the People who did choose them to represent them as their Procurators give their consent to the raising of moneys for publick occasions and benefit and the making of good Laws intended to be obeyed by them being constituted by the King their Head and Soveraign the Prince or Heir apparent Dukes Marquesses Earls Viscounts Barons Arch-bishops Bishops and some of the greater Abbots and Pryors holding their Lands and Possessions of the King in Capite until they were dissolved the Lord Chancellor or Keeper of the great Seal of England Lord President of the Kings Councel Lord Treasurer Lord Privy Seal Lord Admiral Lord Chamberlain of England and of the Houshold Grand Master or Steward of the Kings house and the Kings Chief Secretary though no Barons assisted by the Learned and Reverend Judges of the Law and Courts of Justice at Westminster Hall who have no vote Masters of Chancery Clark of the Crown and Clark of that more Eminent part of the Parliament sitting in their several and distinct places according to their qualities and degrees upon benches or woolsacks covered with red cloth before the Kings Throne or Chair of Estate attended by the Kings Senior Gentleman Usher of the Presence Chamber called the black Rod to whom for or by reason of his attendance upon that honourable Assembly is and hath been antiently allowed annexed for his better support the little Park of Windsor with an house or lodge thereunto belonging of a good yearly value Serjeants at Arms Clarks of that higher house of Parliament as the members reverencing taking care for their Head and Soveraign the Only under God Protector of themselves and all their worldly concernments laws and liberties in which high and honourable Assembly the Archbishops and Bishops do enjoy the priviledge and honour of being present by reason of their Baronies which howsoever given in Frank Almoigne and as Elemosinary are holden in capite debent interesse judiciis curiae regis cum Baronibus are not to be absent saith the constitution or Act of Parliament made at Clarendon by K. Henry the second and that honourable Tenure being Servitium Militare a tye of duty and service to them as well as to the other Baronage any neglect therein was so penal unto them as the Lords in Parliament saith William Fitz Stephen cited by the learned Selden did in the Reign of King Henry the Second notwithstanding that Arch-bishops plea and defence wherefore he did not come to that great Councel or Parliament when he was commanded condemn the Ruffling and domineering Arch-bishop Tho. Becket in a great sum of money the forfeiture of all his moveable goods and to be at the Kings mercy guilty of high Treason for not coming to that high Court when he was cited and the reason given of that judgement for that ex reverentia Regiae Majestatis ex astrictione ligii homagii quod Domino Regi fecerat ex fidelitate observantia terreni honoris quemei Juraverat for that in the reverence and respect which he ought to have shewed to the Majesty of the King and by his homage made unto him and his Oath of Fealty sworn to observe and defend his Honour he ought to have come but did not and a Fine was afterwards likewise obout the Reign of King Edward the second imposed upon the Lord Bello-monte or Beaumont for not attending when he was summoned ad Consulendum Regi to give the King his Advice or Councel And certainly those great and many singular privileges and immunities given by our Kings the Fountains and Establishers of honours and the Offices and Imployments about their Sacred Persons appurtenant unto that noble and very Antient Degree and Titles of Episcopacy may easily invite the order of Bishops not to think it to be a disparagement to their Hierarchy when the dignity Royal of our Kings do as the Roman Emperours since the time of Constantine the Great necessarily require by turns or sometimes in every year the attendance of the Bishops in their Courts or Palaces and they are to be a la Suite du Roy pour honorer sa Majeste to be near the King for the honour of his Majesty when the King is the Guardian and Head of the Church and the Arch-bishop of Canterbury his Apocrisiarius which was an antient Office and Title of the Bishops afterwards appropriate to the Arch-bishop or Metropolitan who was in Palatio pro Ecclesiasticis negotiis excubare to oversee and take care of the Affairs of the Church in the Kings Court or Palace Capellanus Regis dictus omnibus praefuit negotiis ministris ecclesiae was stiled the Kings Chaplain presided and was under the King superintendent as to Ecclesiastical Affairs over all the business and Ministers of the Church and Chappel and in those things quae ad divinum Cultum in principiâ— aula pertinent precipua semper fuit cura atque sollicitudo Archiepiscopi which appertained to Gods worship in the Kings Palace the chief care and business thereof in the duties of Religion and holy Rites belongeth unto him and is in that particular but as the Kings special Chaplain not as Mathew Parker a learned and worthy Archbishop of that See in the Reign of Queen Elizabeth when the Papal inflations were out of fashion would make the reason of those privileges to be because the Kings and Queens of Enggland were ejus speciales atque domesticos Parochianos his more especial Parishioners and the whole Kingdome howsoever divided into distinct Diocesses was but as one Parish though he could not be ignorant that the Arch-bishop of York and his Suffragan Bishops in one and the same Kingdome were none of his Parish nor was as Doctor Peter Heylin a right learned and dutiful Son of the Church of England by antient privilege of the See of Canterbury supposeth him to be Ordinary of the Court of his Majesties houshold being reckoned to be his Parishioners or of his Peculiar wheresoever the same shall be the Chancellor
many great and high priviledges as not to be examined in an action of debt upon account but their Attorneys are permitted to be examined upon Oath for them not to be amerced or taxed but by their Peers secundum modum delicti according to the nature of their offence Et hoc per Barones de Scaccario vel coram ipso Rege and in such cases before only the Barons of the Exchequer or before the King himself if a Parkership be granted to an Earl without words to make a deputy he may do it by his Servants if a Duke Earle or any other of the Baronage do chase or hunt in any of the Kings Parkes the law for conveniency and in respect of his dignity will permit him so many attendants as shall be requisite to the dignity of his estate are not to be summoned to a Court Leet or Shire Reeves Turn or take their Oathes of Allegiance as all other Males above the age of 12 are to do neither they nor their Wives are where they cast an Esseine to make Oath as those which are under the degree of Barons ought to do of the truth of the cause alledged for their Essoine but are only to find pledges and if upon that Essoine allowed a default be made at the day appointed amertiandi sunt Plegii the pledges but not the Earles or Barons are to be amerced are exempted by the Seatute of the 5 th of Eliz. cap. 1. from taking the Oath of Supremacy for that the Queen as that Statute saith was well assured of the Faith of the Temporal Lords shall have the benefit of their Clergy in all cases but Murder and Poysoning are not to be put to the Rack or tortured nor to suffer death even in cases of Treason by the shamefull death of Hanging Drawing and affixing their Heads and Quarters in some publick places or as at Naples they execute common persons for such most execrable offences by beheading them and putting their Heads upon the Market-place and hanging afterwards the naked Corps in some pubblick place by one of their Toes but are by the favour and warrant of the King only beheaded and their bodies with their heads laid by permitted to be decently buried Shall not be tryed by any Ecclesiastical Courts but per Pares by their Peers for Non-conformity to Common-Prayer shall have Chaplains according to their several degrees and limitations of number who may hold two Benefices with cure When the Sheriff of a County is commanded to raise the posse comitatus the power of a County he is not to command the personal service of the Baronage or Nobility a Baron or a Noble man is not to pray that a Coroner may receive his accusation or to prove and approve his accusation or appeal in every point or to be disabled for want thereof When the King by Writ of Summons to Parliament Scire Facias or his Letters missive shall send for any of the Arch-bishops Bishops Earls or Barons to appear before him or give their attendance they may in their going or returning kill a Deer or two in any of his Forrests Chases and Parkes and carry them away a Capias ad satisfaciend lieth not against a Peer or Baron of England a Baron shall not be impannelled of a common Jury although it be for the service of the Country no Attachment for a contempt in not appearing or answering in Chancery lyeth against them their Lands parcel of their Earldoms Baronies or Honors being not to be contributary to the wages of Knights of the Shire or County wherein those Lands do lie are in cases of Felony or Treason to be tryed only by their Peers and their Wives are by a Statute made in the 20 th year of King Henry the 6 th to enjoy the like priviledge upon the Surety of the Peace prayed against a Baron he is not to be arrested by warrant from a Justice and upon a Supplicavit out of the Chancery shall give no surety but promise only upon his Honor A Defendant shall not have a day of Grace given him against a Lord of Parliament because he is supposed to attend the affairs of the publick a Baron shall not answer upon Oath to a Bill in Chancery or Equity but upon protestation of Honor nor in a verdict upon a Tryal by Peers for saith Crompton the Law makes so much account of the word of a Peer of the Realm when he speaks upon his honor though it be in Case or upon Tryal for life as it shall be believed a Baron shall not have a writ of Subpaena directed unto him but a Letter under the Hand and Seal of the Lord Chancellor or Lord Keeper of the great Seal of England is not to be arrested or outlawed for Debt or any other personal action not criminal there being two Reasons saith our Law why the person of a Lord should not be arrested or outlawed for Debt or Trespass the one in respect of his dignity and the other in respect that the law presumes that they have sufficient lands and tenements by which they may be distreined in the Long Writ called the Prerogative Writ issuing out of the Exchequer to distreine the lands and goods of the Kings debtors or in default thereof to attach their bodies there is an express exception of Magnatum dominorum dominarum of the Nobility and their Ladies and the Office of Count or Earl was of great trust and confidence for two purposes the first ad consulendum Regi tempore pacis to councel assist and advise the King for the Weale publick in time of peace and the second ad defendendum Regem patriam tempore belli to defend their King and Country in time of War and by their power prowess and valour guard the Realm both which are the proper business of the Barons and the other Nobility as well as the Earls and in action of Debt Detinue or Trespass or in any other action reall or personal brought or commenced for or against any of the Nobility two Knights shall be impannelled on the Jury with other men of worth and by a late necessary and honorable care of the late Lord Chancellor and Master of the Rolls no Original Writ against any of the Nobility in a subsequent Term is permitted to be antedated or to take benefit of a precedent as is now commonly used against such as are not of the Peerage or Nobility Mr. Selden giving us the Rule that tenere de Rege in Capite per Baroniam to hold of the King in Capite and to have lands holden by Barony and to be a Baron are one and the same thing and Synonymies and not a few of our antient Writers and Memorialls have understood the word Baronia to signifie an Earldom or the lands appertaining thereunto which may make it to be more then conjectural that it
is their dignity service and attendance upon the King and Weal publick more then any supposition of their great Estates sufficient to be distreined which hath founded and continued those just and warrantable liberties and priviledges unto them tam tacito omnium consensu usuque longaevo derived and come down unto us aswell from antiquity the law of Nations and the civil and Imperial laws which were no strangers unto us above 400 years after the comeing of our blessed Saviour Christ Jesus into the flesh or when Papinian the great civil Lawyer sate upon the Tribunal at York seven years together whilst the Emperor Severus kept his Court and was there Resident wherein are only to be found the Original g of many honorable rational and laudable customes of honour and Majesty used not only in England but all the Christian Kingdomes and Provinces of Europe quam Regni Angliae Institutis latisque quae in Juris necessitatemque vigorem jam diu transiit as our common and Municipal laws and Reasonable customes of England necessarily to be observed for if it could be otherwise or grounded only upon their sufficiencies of Estate whereby to be distreined every Rich Man or good Freeholder which differ as much from our Nobility as the Hombre's Rico's rich men without priviledges do in Spain from the Rico's Hombre's dignified and rich men might challenge as great a freedom from arrests especially when our laws do allow an action upon the case against a Sheriff or other which shall make a false Retorne that a Freeholder hath nothing to be distreined when he hath estate sufficient whereby to be summoned or distreined but it neither is nor can be so in the case of our Nobility and Baronage who are in times of Parliament to be protected by their Dignities and the high concernments of Parliamentary affairs from any molâ—station or disturbance by any Writs or Processe either in their Persons or Estates and are by some condiscention and custome in favour to such as may have cause of action against them in the vacancy of Parliaments and when their priviledge of Parliament ceaseth become liable to the Kings Writs or Processe yet not by any Processe of arrest or imprisoning of their persons but by Writs of Summons Pone per vades salvos taking some Pledge or Cattle that they shall appear and Distringes to distrein them by their Lands Tenements Goods and Chattels untill they do appear and answer to the action that which is retorned or levied thereupon being not retorned into the Exchequer or forfeit to the King if they do appear in any reasonable time unto which priviledge of Process the Bishops of England and Wales holding by Barony may justly claim or deserve to be admitted when as the Metropolitans having an Estate for life in their Bishopricks and Baronies ought not to have a Nihil habet retorned against in their several Provinces nor the Suffragan Bishops in their Diocesses nor have their dignities subjected to the violence of Arrests or sordid usage of prisons hindering the execution of their sacred Offices in the Government and daily occasions of the Church of God neither are any of the Baronage or Bishops of England to be distreined in their Journeys per equitaturam by their Horses or Equipage for any Debt or upon any other personal action whilst they have any other Goods or Chattels whereby to be distreined So as if any of the Temporal Baronage of England holding their Earldomes or Baronies in Fee or Fee Tail or for Life should by the prodigality of themselves or their Ancestors or by misfortunes troubles or vicissitudes of times as too many have been since their honors have not been as if rightly understood they ought to be accounted feudall and the Lands thereunto belonging as the lands of the Bishops and spiritual Barons unalienable be reduced to a weak or small Estate in lands or should have none as John afterwards King of England a younger son of King Henry the Second was who untill his father had conferred some honors and lands upon him was called Jean sans terre John without land yet they having a Freehold in their honors and dignities and the Dukes Marquesses Earles and Viscounts of England having at their Creations some support of honor by way of Pension or Annuity yearly paid unto them by the King and his Heirs and Successors annexed thereunto and not to be severed from it The antient Earles having the third peny or part of the Fines and Amercements due to the King out of the Counties of which they were Earles afterwards about the Raigne of King John reduced to 20 Maâ—kes per annum as all the later Earles and Viscounts now have and the Dukes and Marquesses a greater yearly annuity or Creation mony as 40 Marks or 40 l. per an And all the Nobility and Baronage of England having besides a Freehold in their honors and dignities and their houses nobly furnished some of them having above 20 thousand pounds per an lands of Inheritance many above 10 others 7 6 5 4. or 3 thousand pounds per annum lands of Inheritance in Taile or for Life and none unless it be one or two whose misfortunes have brought their Estates for Life or Inheritance something under one thousand pound per annum There can be neither ground or reason for any Sheriff upon any the aforesaid Writs awarded or made against any of them to retorne Quod nihil habet per quod summoniri possiit that he had nothing whereby to be summoned attached or distreined and if that could as it cannot rationally be truly or legally done yet the Judges sworn unto the observance of the laws and to do Justice unto all sorts of people cannot in any of their Courts award or cause Writs or Process of Capias against them to arrest or imprison their bodies upon any action of debt or other personal actions not criminal which makes an impossibility for any of them in civil actions to be outlawed And if they had neither Creation mony nor Lands Goods or Chattels which is neither rationally or probably to be either imagined or beleived yet they are not to be denied those honorable priviledge so antiently and by the laws of nations belonging to their high calling and dignities when as the antient Charters or Creations of Earls those later of some of our Dukes Marquesses Viscounts and Barons having words and clauses amounting to as much do grant them as in that antient one by King Henry the second to Earle Aâ—berick or Albercius de tere of the Earldome of Oxenfordscyre their honors ita libere quiete honorifice sicut aliquis comitum Angliae liberius quetius honorificieutius habet as freely and honorably as any Earl of England held his Earldome as that grant of the same King to William d'Abbiney of the Earldome of Arundell cum omnibus libertatibus liberis consuetudinibus predicto honori pertinentibus
with all the liberties and free customes to the said honour appertaining that of later granted to the Earl of Pembroke by King Edward the 6 th of the Earldome of Pembroke cum omnibus singulis praeheminentiis honori Comitis pertinentibus with all preheminencies and honors belonging to the honour and dignity of an Earl Et habere sedem locum vocem as all the grants and Creations of the later Earles do now allow and import in Parliamentis publicis Comitiis Consiliis nostrorum haeredum successorum infra regnum Angliis inter alios Comites and to have place vote or suffrage in the Parliaments or Councells of the King his heirs or successors amongst the Earles within the Kingdome of England nec non uti gandere omnibus singulis Juribus privilegiis praeheminentiis immunitatibus statui comitis in omnibus rite de I're pertinentibus quibus caeteri comites Regni Angliae ante haec tempora melius honorificentius quietius liberius usi gravisi sunt as likewise to use and enjoy all and singular rights priviledges immunities and preheminencies to the degree and state of an Earl in every thing rightly and by law appertaining as other Earles of the Kingdome of England best most honourably and freely have used and enjoyed all who the aforesaid antient honorable priviledges preheminencies and immunities granted and allowed the Nobility and Baronage of England those Sons and Generations of merit adorned by their ancestors vertue aswell as their own and the honors which their Soveraigns have imparted unto them have been ratified by our Magna Charta so very often confirmed by several Acts of Parliament and the Petition of Right in and by which the properties and liberties of all the people of England are upheld and supported and therefore the honors and dignities being personal Officiary or relating to their service and attendance upon the throne and Majesty Royal and conducing to the Honor Welfare and safety of the King and his people King Henry the 6 th may be thought to have been of the same opinion when the Commons in Parliament having in the 29 th year of his raign Petitioned him that the Duke of Sommerset Dutchess of Suffolk and others may be put from about his person he consented that all should depart unless they be Lords whom he could not spare from his person And in Askes Rebellion in Yorkshire in the latter end of the raigne of King Henry the 8 th the Commons complained that the King was not although he had many about him of great Nobility served or attended with Noble or worthy men And also the Lords Spiritual assembled in Parliament in the second year of the raigne of King Charles the Martyr when they Petitioned the King against the Inconveniences of some English mens being created Earles Viscounts and Barons of Scotland or Ireland that had neither residence nor estates in those Kingdomes did amongst other things alledge that it was a Shame to nobility that such persons dignified with the titles of Barons Viscounts c should be exposed and obnoxious to arrests they being in the view of the law no more then meer Plebejans and prayed that his Majesty would take some Course to prevent the prejudice and disparagement of the Peers and Nobility of this Kingdome who being more peculiarly under the protection of their Soveraigne in the enjoyment of their priviledges have upon any invasion thereof a more special addresse unto him for the Conservation thereof as in the case of the Earl of Northampton the twentieth day of June in the 13 th year of the Raign of King Charles the Martyr against Edmond Cooper a Serjeant at Mace in London and William Elliot for arresting of him they were by the Lord Chamberlains warrant apprehended and committed to the Marshall and not discharged but by warrant of the Lord Chamberlain bearing date the third day of July next following and needs not seem unusual strange or irrational unto any who shall but observe and consult the liberties priviledges immunities and praeheminencies granted and permitted unto the Nobility of many other Nations and Countries aswell now as very antiently by their Municipal and reasonable customes and the civil or Caesarean laws CHAP. XVI That many the like priviledges and praeheminences are and have been antiently by the Civil and Caesarian laws and the Municipall Laws and reasonable Customes of many other Nations granted and allowed to the nobility thereof WHen as the Hebrews who thought themselves the most antient wise and priviledged of the Sonnes of men had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tribuum principes Capita qui cum Rege sedentes partim consilia mibant partim Jus reddebant Princes of the Tribes under the King were the chief Magistrates and heads of the people attended the King sate with him as his Councel and assisted him in the making of laws of which the book of God giveth plentiful evidences Solomon had his Princes some of whom were set over his household Ahab had Princes of his Provinces Jehoram King of Israel leaned upon the hand of a Lord that belonged unto him And our Saviour Christ alludeth to the Princes of Israel the Elders and Judges of the people when he saith his twelve Apostles should after the Consummation of the world sit and Judge the twelve Tribes of Israel amongst the Graecians the nobility derived their honors from their Kings and Princes and by the lawes of Solon and the ten Tables were alwaies distinguished from the Common people and had the greatest honours and authorities and in all other Nations who live under Monarchs have been favoured and endowed therewith the old Roman Nobility refused to marry with the Ignoble as those of Denmark and Germany do now which our English descended from the later did so much approve of as they accompted it to be a disparagement to all the rest of the Family and Kindred to marry with Citizens or people of mean Extractions Julius Caesar when he feasted the Patricii or Nobility and the common people entertained the Nobility in one part of his Palace and the Common people in another and not denied some part of it even in the Venetian and Dutch Republick as amongst many other not here ennumerated Nobilis minus suâ—t puniendi quam ignobilis Noble men are not to be so severely punished as ignoble Nobiles propter debitum Civile vel ex causa aeris alieni non debent realiter citari vel in Carcerem duci are not for debts or moneys owing to be arrested or imprisoned propter furtum vel aliud crimen suspendio dignum laquei supplicio non sunt plectendi are not for Theft or any other Crime to be hanged and that priviledge so much allowed and insisted upon in the Republick or Commommon wealth of Genoar in the height of their envy or dislike of their Nobility as they did about the
year of our Saviour 1220 displace the learned Jacobus Baldwinus a Doctor of the Civil Law and removed him from his place of Praetor or Lord Chief Justice into which they had elected him for that he had caused a Noble man to be hanged when as â—atrio Statuto strangulationis ignominia eximuntur nobiles a Noble man was by their Laws not to be put to death in so ignominious a manner and thereupon enacted by a Law that from thenceforth no Doctor of Law should be admitted into the Office or place of Praetor Hispanus nobilis jure Regio Hispaniarum ex Nobilitatis privilegio in Carcerem mitti non potest nec in ipsius armis equo recte fit executio A Spanish Noblemen is not by the Kingly law and Prerogative of the King of Spain and tbe priviledge of his nobility to be imprisoned or his Arms or Horse taken in Execution by the Laws of Poland and of Flanders a Noble man is not to be imprisoned but taken into custody by the Magistrate or Judge in their houses or confined to some City or place until the debt demanded or Action be satisfied or by plea discharged in depositionibus attestationibus testimoniis ferendis magis creditur Nobilibus quam Ignobilibus in attestations or testimonies Noble men are more to be credited then ignoble ac etiam cum de illorum re agitur even when it is in their answers or own concernments ad officia secularia magis quam plebei assumuntur are sooner to be preferred to secular Offices and imployments then such as are ignoble reverenter sunt salutandi are to be reverently saluted ad omnem occursum illis assurgendum caput revelandum de via decedendum c. men are to rise unto them at their coming towards them uncover their heads or give them way or place for in doing them honour the Prince or King that gave them the honour is honoured Si in judiciis comparent Index qui in Hungaria in causis nobilium non nisi nobilis eos salutare ad sedendum aliquo humiliori loco iuvitari debet if he appear in any Court of Justice the Judge who in Hungary in the causes of any of the Nobility is likewise to be a Noble man is to salute them and invite them to sit in some place beneath the Tribunal Non verbo sed in scriptis sunt citandi are not to be cited by word of mouth but by writing de calumnia personaliter jurare non tenentur are not to take in any action the Oath de Calumnia that the action is not meerly brought in malice or for contention injuria nobilibus illata longe aliter aestimatur quam ea quae ignobili infertur an injury done unto them is more then to one which is ignoble torqueri non debent ought not to be put upon the Rack or tortured Offendens Consiliarium principis incurrit crimen Majestatis quando offenderetur in odium contemptum siu principis he which hurteth or offendeth a Councellor of the Prince our Temporal Baronage being so in Parliament by Inheritance committeth Treason if it be done in hatred or contempt to the Prince And the reason given for the high esteem of Nobility and those more then ordinary favours and priviledges granted and imparted unto them and the Baronage of the Empires of Rome Germany and many Neighbour Kingdomes are that they are de familia Principis accompted as a part of the Families of the Emperors and Kings unum cum ipso faciant corpus unum Consistorium are as one body and incorporate inhaerere principi dicuntur sicut stellae firmamento soli are said to attend the Prince as the Stars in the firmament do the Sun radii solares solem and as the Rayes or Beams of the Sun do accompany it The Emperours Honorius Theodosius declaring that immunitate digni sunt quos sui lateris comitatus illustrat that they which had the honour to attend and be near their persons deserved to be priviledged Poloni Nobiles cum de illorum vita honore agitur non ab alio quam ipsom Rege Judicari possint non nisi consulto principe sunt puniendi the Nobility of Poland in any matter concerning their life and honour are only to be tryed by the King and are not to be punished unless the Prince be first consulted and do approve thereof Et Barones apud Gallos non aliorum Judicio subsisti poterant in prima instancia quam Nobilium Seneschallorum ad quos Idcirco illorum causae maxime feudales remissae fuisse leguntur apud Jo. Tilleum recollectorum Franciae regum And the French Baronage are in the first instance to to subject to no other Court or Judgement then that of the Nobility and Stewards appointed by the King and therefore their causes especially such as concerned their feudal estates or honorary possessions were as appeareth by John Tilly thither remitted Et ab omni aevo Nobilium Galliae fuit specâ—ale privilegium ut omnes eorum cause semper essent reservatae singulari Regis Supremi eorum principis salvo guardia protectioni jurisdictioni And it was in all ages a special priviledge of the French Nobility to be under the Guard Protection and Jurisdiction of their Soveraigne Atque hinc Ballivorum antiqua Institutio quod illi essent esse deberent tanquam custodes conservatores omnium jurium privilegiorum nobilibus competentium and from thence came that antient institution of Bailiffs Judges or officers specially appointed who were ought and were to be as Guardians and conservators of all the rights and priviledges appertaining to the Nobility Et nobiles non minus privilegiati favorabiles quam familiares domestici principum vel Officialium And the Nobility are there to be no less priviledged and savoured then the Servants and domestiques of the King or any of his Officers the distinction betwixt the Nobility and common people of all the Kingdoms and Nations of the Earth being so universal As in China the Mandarines being the Nobility and Governors of Provinces cannot be imprisoned but for heinous faults have two Maces of Silver carried before them in the streets and none are to cross the streets whilst they pass along and all men are to give way unto them Montezeuma Emperor of Mexico in the West-Indies ordained that the Noblest men of his Empire should live in his Palace would have none of the Plebeyans but Knights in any office in his Court who had priviledge to carry Gold and Silver wear rich Cotton and use painted and gilt vessels which the common people might not And even the most wild and barbarous of mankind inhabiting the Earth in those Countries and places where the glimmerings of nature and civility could give any admission have so every where acknowledged an honor due to their nobility as upon
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
Regibus obnoxium for what ever any Magistrates or Judges do is subject to his controll or superintendency Quicquid potâ—statis ditionis impâ—rii nacti sunt id receptum benignitati Regum praestare tenentur in quorum praesentia non sâ—cus evaneseit quam in meridiano sole stellarum fulgor quae coruscant in tenebris lucidissimis radiis mirum in modum scintillantes apparent Whatever Power or Jurisdiction they had was to be attributed to the Grant and Favor of the King in whose Presence it doth vanish and disappear as the brightness of the Stars which shine in the dark do at the shining or glory of the Sun Quemadmodum enim illae praesenti quicqued habent luminis soli foenerantur Ita Magistratuum potestas omnis vis imperium ubi praesto Rex est ad eum redit aquo profectum est for as they do borrow their light from the Sun so all the Power Force and Rule which the Magistrates have when the King comes or acts in his own Person do return to him from whom they received it and that if Kings do abstinere non tantum a sententiae dictione sed a foro ne Regiae dignitatis splendore judicum oculi perstringantur forbear from intermedling in their Courts of Justice it is that by the lustre of their Presence the Business of the Judges may not be hindred or disturbed Non igitur abs re tribunalia creatis a se Magistratibus relinqunt idque solemne Reges habent ut nunquam in orchestra conspiciuntur nisi quid momenti gravioris inciderit quod ipsorum authoritate absoluta summaque ditione potestate numine decidatur Wherefore it was not without cause that they did leave their Tribunals to Judges or Magistrates made or created by them and made it to be as a Custom duly to be observed not to appear themselves in their Courts of Justice unless some great matter of weight or moment hapned which required the aid or assistance of their supream and absolute Authority and that notwithstanding that James the fourth King of Scotland did in imitation of what he had learnt in France Institute a kind of supream Court and call'd it The Court of Sessions for determination of Causes like that of the Parliament of Paris and in Criminal matters made it to be without Appeal Quaedam vero quae majoris Exempli sunt regis cognitionem desideranâ— quae Scotorum Jurisperitorum vulgus puncta vocat sive Capita Coronae reservata cujusmodi sunt Majestatis raptuâ— incendii id genus aliorum But yet there were certain matters or things which the ordinary sort of Lawyers amongst the Scots called Points or Pleas of the Crown especially reserved to the Determination and Judgment of the King himself such as Treason Rape burning of Houses or the like which being in the Year of our Lord 1581 when Mr. Ad. Blackwood wrote that Loyal and Learned Treatise not denied to be good Law and right Reason in Scotland and of as long a Date or Original as about 300 years before the Incarnation of Jesus Christ was although it hath since the time that Mr. Blackwood wrote strangely deviated into the sullen surly and unwarrantable Doctrines and Practice of a factious and domineering Presbytery and other the heretofore Corahs Dathans and Abirams of Scotland Omnium regnorum perpetua lege more consuetudine receptum A received and well approved Law and Custom amongst all Nations and may seem to have been derived from the Council which Jethro many Generations after that an inundation of Sin had in the grand and most universal punishment of the Deluge washed away all Mankind but Noah and his Sons and Daughters in all but eight Persons and left them to tremble and stand amazed at his Justice and adore his Mercy gave to Moses his Son-in-law to ease himself of his continual toil and tiring labors From the Morning untill the Even in determining the Controversies of the People by constituting Judges over them and reserve to his own Decision and Judgment every great Matter Wherein it can not well accord with the rectified Reason of Mankind that Jethro had in that his Council any the least design to diminish the Superiority Right or Authority of Moses or that Moses by hearkning unto it did intend thereby to bereave himself of the dernier ressort ultimate Appeal and Authority with which God had entrusted him And those not to be contradicted sacred Records of the Almighty can assure us that not onely King David who is therein said to have been a Man after Gods own heart Solomon the wisest of Kings and the succeeding Kings of Israel and Judah but Ezra and Nehemiah who were but as Governors or Stadtholders under Artaxerxes over the remnant of the Captivity of the Jews did come close up to that advice of Jethro and adhere to those eternal Laws of right Reason Superiority and Rules of Government ever since observed in all or the greatest part of the Kingdoms of the habitable Earth amongst which our Kingdom of England and her early as well as later Inhabitants alterius orbis of this our other World for the Reasons and Authorities herein before declared and that which shall be added hereafter in confirmation thereof and the excellent and incomparable constitution and method of her Monarchy and Government which will manifest it self and be plainly evidenced to any who shall rightly inspect it is to be ranked and reckoned And may reduce to a better understanding all those who have taken up those Opinions on trust or a sleight or no examination that such a pattern of the Divine wisdom in his Theocraty and Monarchical Government of the promised Seed of Abraham is no way repugnant to those Rules of Government which have been not onely approved and practised by our British Saxon and Danish Kings before the Norman Success and Victory but continued by their Successors When King Canutus taught by the no seldom Petitions Appeals and Complaints of the People was about the Year 1016. enforced to make a Law That Nemo injuriis alterius Regi quaeratur nisi quidem in Centuria Justitiam consequi impetrare non potuit no Man should complain to the King of any wrong or injury done unto him unless he could not in the Century or Hundred-Couâ—t obtain any Remedy In that great and remarkable Pleading for three days together in the Reign of William the Conqueror at Pinnendene in Kent in the grand Controversie betwixt Lanfrank Arch-bishop of Canterbury and Odo Bishop of Bayeux the Kings half Brother for divers Mannors Lands and Liberties of that Arch-bishoprick of which the Bishop of Bayeux had disseised him although that King did upon special occasions sometimes hold his Commune Concilium or Parliament the King Prâ—cepit Comitatum totum absque morâ— considere homines comitatus omnes Francigenas praecipue Anglos in Antiquis legibus câ—nsuetudinibus peritos in unum
such Causes as all the Kings and Princes of the civilized Part of the World have used to do And of small or no force or avail would be that Clause in our Magna Charta so hardly obtained by our Fore-fathers that the King Nulli negaret Justitiam vel Rectum should not deny Justice or Right unto any who demanded it and little deserving to be called or thought a Liberty if it were not within the reach of his Power and it would be a kind of Injustice to oblige or require him to do that which he could not Which the Reverend Judges and Sages of the Law in the eighteenth year of the Reign of King Edward the First were so unwilling to interpret to be out of his Power As when John Bishop of Winchester having granted unto him free Chace in all the Demesn Lands and Woods of the Prior and Covent of St. Swithen in Winchester and their Successors and being in the Kings Service in the Parts beyond the Seas and having his Protection for all his Lands Goods and Estate brought his Action wherein he did set forth the Kings Protection and his being as aforesaid in his Service against Henry Huse Constable of the Kings Castle at Portcester for that he had hunted in his aforesaid Chace and Liberty in contempt of the King and contrary to his aforesaid Protection whilest he was in his Service as aforesaid To which the said Henry Huse pleading that what he had done was lawful for him to do by reason of a Privilege belonging unto his said Place or Office of Constable of the Castle aforesaid and Issue being joyned thereupon the Court stayed it and delivered their Opinion That no Jury ought to be impannelled nor any Inquisition taken thereupon in regard that Inquisitio ista Domino Rege inconsulto tam propter Cartam ipsius Domini Regis porrectam quam nemo per inquisitionem patrie vel alio modo judicare debet nisi solus Dominus Rex quam ratione Ballivae predict ' que est ipsius Domini Regis ad quam predictus Hâ—nricus dicit libertatem predictam pertinere that such an Issue or Inquiry ought not to be the King not consulted or made acquainted therewith as well in respect of his Charter produced which none but the King by any Jury or Trial ought to Judge as in regard of the Liberty alledged by the said Henry to be belonging to the King Et dictum est partibus quod sequantur versus Dominum Regem quod precipiat procedere ad predict ' inquisitionem capiend ' si voluerit vel quod alio modo faciat voluntatem suam in loquela predict And the Parties were therefore ordered to attend and petition the King to command the Judges if he please that they proceed in the said Action or by some other way declare his Will and Pleasure concerning the said Action and is a good direction for Subjects to ask leave of the King before they Arrest or any way endeavor to infringe the Priviledge of his Servants In the twentieth year of the Reign of that King in a Case in the Court of Common-Pleas where William de Everois being Demandant had complained to the King that the Judges of that Court did delay to give Judgement and the Judges acknowledging that he had been long delay'd in regard that the said William required Seisin to be delivered unto him by a Contract made in the time of War which he denied Dictum est prefatis Justic ' quod ad judicium procedant prout facere consueverunt Et faciend ' est de seisina contractibus factis in tempore partes Guerre the King ordered the Judges that they should proceed to Judgement as they used to do and make an Order concerning the Seisin and Contracts had between the parties thereunto in the time of the War In the same year a Complaint being made to the King that Sir John Lovel Knight being Plaintiff before the Justices of the Court of Common-Pleas in a Writ which had long depended and was made in an unusual Form of the Chancery and the Defendant in the beginning of the Plea before Thomas of Weyland and his Associates the Justices of the said Court had put in his Plea of Abatement and Exceptions to the said Writ and prayed that it might be Entred upon the Rolls and Recorded which afterwards could not be found but in regard that Elias de Beckingham one of the Judges remembred the said Plea to whose onely memory a greater Credit is to be given than to the Rolls of the said Thomas of Weyland who with the rest of his Fellow Judges except the said Elias of Beckingham were formerly Fined and punished for other Misdemeanors Et idem Elias semper fideliâ— extiterit in servicio Regis fideliter se gesserit and the said Elias was always faithful and in the Service of the King did well behave himself And all the then Judges did agree that if a Writ of that Form should be brought unto them and pleaded in Abatement they would immediately quash it And for that non est Juri consonum quod per maliciam predict Thome sociorum suorum sibi adherentium qui Exceptiones Tenentis admittere noluerunt cum ipsum proposuerit tempore Competenti non allocaverunt per prout prefatum Eliam recordatum est It is not agreeable to Law that by the malice of the aforesaid Thomas and his Fellow Judges confederating with him who would not admit or allow of the Tenants Exceptions when it was in due time pleaded as by the said Elias was witnessed Dictum est Justic ' quod procedant ad Judicium super exceptione Tenentis prout fuerit faciend ' ac si in Recordo inveniretur The Judges were ordered to proceed to Judgment upon the Tenants Exception as it ought to be done if it had been recorded In the year next following William de Mere Sub-Escheator of the King in the County of Stafford and Reginaldus de Legh who was one of the sworn Justices of the King having an Information brought against them before the King and his Council the Justices of the Court of Kings-Bench for that after the death of Jeffery de Howâ—l who held Lands of Ralph Basset by Knight-service and the death of the said Ralph who had seized all the Lands of the said Jeffery and had in his life time the custody and marriage of William the son of Jeffery and dying seized of Lands holden of the King in Capite and of the custody of the said William and the Heir of the said Ralph being likewise under age and with the Lands of the said Ralph seized by the said Sub-Escheator he suffered the Heir of the said Jeffery without the Kings Writ to enter upon the Lands of the said Jeffery And the said Reginald de Legh by fraud and collusion betwixt him and the said Sub-Escheator took away the Heir of the said Jeffery and
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
then Kings Mother Or the popular greatly belov'd Duke of Norfolk out of the County of Norfolk And Sir Edward Coke that great Lawyer so deservedly call'd might if he were now again in his house of clay and that Earthly Honor which his great Acquests in the Study and Practice of the Law had gained him do well to inform us that the Report of Husseys the Chief Justice who is by him mistaken and called the Attorney-General to King Henry the Seventh was any more than an Hear-say and nothing of kin to the Case put by the King whereupon they were commanded to assemble in the Exchequer Chamber whether those that had in those tossing and troublesom times been Attainted might sit in Parliament whilst their Attainders were reversing And the Case concerning the King himself whether an Attainder against himself was not void or purged by his taking upon him the Crown of England or that which in that Conference was brought in to that Report impertinently and improperly to what preceded or followed by the Reporter of that Conference was not at the most but some by discourse and not so faithfully related as to mention how farre it was approved or wherein it was gain-sayed by all or any or how many of the Judges it being altogether unlikely that if Hussey had been then the Kings Attorney-General he would have cast in amongst those Reverend Judges such an illegal and unwarrantable Hear-say of an opinion of the Lord Chief Justice Markham in the Reign of King Edward the Fourth whom that King as our Annalist Stow recordeth displaced for condemning Sir Thomas Cooke an Alderman of London for Treason when it was but Misprision said unto that King That the King cannot Arrest a man upon suspition of Treason or Felony because if he should do wrong the Party cannot have an Action against the King without a bestowing some Confutation Reason or Arguments against it which the Reporter was pleased to silence And was so weak and little to be believ'd an Opinion as the practice of all the Ages since have as well as the Times preceding disallowed and contradicted it and whether such an Opinion can be warranted by any Law or Act of Parliament And whether the King may not take any Cause or Action out of any of His Courts of Justice or Equity and give Judgment thereupon and upon what Law Reason or Ground it is not to be done For if the Answer which Sir Edward Coke made to what the King alledged That the Law was grounded upon Reason and that he and others had reason as well as others That true it was God had endued His Majesty with excellent science but His Majesty was not learned in the Laws of England and Causes which concern the Life and Inheritance or Goods of his Subjects which are not to be decided by natural Reason and Judgment of Law which Judgment requires long study and experience And when the King was therewith greatly offended and replyed That he should then be under the Law which was Treason to be said answered that Bracton saith That Rex non debet esse sub homine sed sub Deo Lege That a King ought not to be under man but God and the Law shall be compared with the Opinion of Dyâ—r Lord Chief Justice of the Court of Common-Pleas and the Judges of that Court in the Case betwixt Greâ—don and the Bishop of Lincoln and the Dean and Chapter of Worcester upon a Demurrer in a Quare Impedit in the eighteenth and nineteenth year of the Reign of Queen Elizabeth reported by Mr. Edmond Plowden as great and learned a Lawyer as that Age afforded and one whom Sir Edward Coke doth acknowledge to be no less did allow and were of opinion That the King cannot be held to be ignorant of the Law because He is the Head of the Law and ignorance of the Law cannot be allowed in the King there will be as little cause as reason to dote upon such Conclusions especially when the erronious Mis-application and evil Interpretation of that alledged out of Bracton will be obvious to any that shall examine the very place cited that his meaning was that where he said that the King was sub Deo Lege under God and the Law it was that he was onely non uti potentia sed judicio ratione And in other places of his Book speaking who primo principaliter possit debeat judicare who first and principally shall and may judge saith Et sciendum quod ipse Rex non alius si solus ad hoc sufficere possit cum ad hoc per virtutem Sacramenti teneatur astrictus And it is to be understood that the King Himself and none other if he alone can be able is to do it seeing He is thereunto obliged by His Oath Ea vero quae Jurisdicâ—ionis sunt Pacis ea quae sunt Justiciae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona seperari poterint cum faciant ipsam Coronam for that which belongeth to his Jurisdiction and that which belongeth to Justice and the Peace of the Kingdom doth belong to none but the Crown and Dignity of the King nor can be separated from the Crown when it makes the Crown so as those who should acknowledge the strength and clearness of a Confutation in that which hath been already and may be said against those Doctrines of Sir Edward Coke may do well to give no entertainment unto those his Opinions which nulla ratione nulla authoritate vel ullo solido fundamento by no reason authority or foundation can be maintained but to endeavor rather to satisfie the world and men of law and reason whether a Soveraign Prince who as Bracton saith habet omnia Jura sua in manu suâ— quae pertinent ad Regni gubernaculum habet etiam Justiciam Judiciam quae sunt Jurisdictiones ut ex Jurisdictione sua sicut Dei Minister Vicarius hath all the Rights in his hand which appertaineth to the Government of the Kingdom which are Jurisdictions and as His Jurisdiction belongeth unto Him as He is Gods Vicar and Minister is in case of Suspition of Treason or Felony where His ever-waking Intelligence and careful Circumspections to keep Himself and People in safety shall give Him an Alarm of some Sedition Rebellion or Insurrection and put on His Care and Diligence to a timely Endeavor to crush or spoil some Cockatrice Eggs busily hatching to send to His Lord Chief Justice of the Court of Kings Bench or in his absence out of the Term some Justice of Peace for a Warrant to Arrest or Apprehend the party offending or suspected which our Laws and reasonable Customs of England did never yet see or approve and when such offenders are to be seized as secretly as suddenly Or what Law History or Record did ever make mention of so unusual undecent
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-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
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
were disseized by the said Earl John and thereupon the Court delivered their Opinion that what the King had done by word of mouth was more to be approved credited than what he had commanded by his Letters And our Bracton who ad vetera Judieia perscrutanda as he saith had used great diligence in the search and perusing of the Old Records of the Kingdom declareth the Law to be in his time That non debet esse Major in Regno suo there ought not to be any Superiour unto him in his Kingdom si autem ab eo petatur â—um breve non â—urrat contra ipsum locus erit supplicationi quod factum suum corrigat emendet but if he do not Justice when as no Writ can be had against him he is to be petitioned to do it quod quidem si non fecerit satis sufficit ei ad poenam quod Dominum expectet ultorem nemo quidem de factis suis praesumet disputare multo fortius contra factum suum venire which if he shall not do it will be enough to leave him to God for a punishment for no man is to presume to question or dispute his Actions much more to contradict any thing which he doth And since the Granting of the Great Charter of the Liberties of the People those Bounds which Regal Majesty hath been pleased to put to the Royal Prerogative it appeareth That in the first year of the Reign of King Edward the First it was adjudged and declared in the Court of Kings Bench Quod non est voluntas Regis quod Cartae suâ— concessae scilicet de Pardonatione Vitae tempore praetirito per ministros ipsius Regis disallocentur in prejudicium illorum quibus conceduntur that it is not the Kings pleasure that his Charters of Pardon for the time past shall be disallow'd to the prejudice of those to whom they are granted In the third and nineteenth year of that Kings Reign it was declared and allowed to be Law That Justiciarius non habet Jurisdictionem cognoscendi in aliqua loquela nec capiend ' aliquam Assisam nisi per Dominum Regem ad ipsius voluntatem si secus fecerit videtur Curiae quod de jure non fecerit That a Justice or Judge hath no Jurisdiction in any Plea or Action nor to try or take any Assise unless it be allowed or permitted by the King or by his Will and Pleasure and if the Justice or Judge shall do otherwise the Court was of opinion that by Law he could not do it In the nineth year of the Reign of that King it was adjudged That neque Barones quinque Portuum neque aliqui alii in Regno possunt clamare talem Libertatem quod non respondeant Domino Regi de contemptu sibi facto ubi Dominus Rex eos adjudicare voluerit Neither the Barons of the Cinque ports nor any other in the Kingdom can clame a Liberty not to be answerable to the King for any contempt where he will Call them to accompt for it In the eighteenth year of his Reign in the Case betwixt the Bishop of Carlisle and Isabell de Clifford and Idonea de Leybourne her Sister concerning the Advowson of a Church which he Claimed by a Feoffment thereof made by King Richard the First it was alleaged to be Law That nemini liceat Cartas Regias indicare nisi Regibus That no man ought to judge the Kings Charters but themselves In Hillary Term in the twentieth year of the Reign of that King in the great Case and Pleadingi betwixt the King and Gilbert de Clare Earl of Gloucester and Hertford and Humphrey de Bohun Earl of Hereford and Essex for that the said Earls had upon a Controversie betwixt them for Certain Lands in Brecknock and in the Marches of Wales armed their Tenants and with Banners displayed invaded each others Lands after the Kings prohibition when by a Commission granted to William Bishop of Ely William de Valence and others the King therein declared that although the said Earls should in the meane time agree yet if any thing should be attempted in prejudicium seu Contemptum vel etiam laesionem Coronae suae Dignitatis Regiae vel contra pacem c. post inhibitionem suam praedicto Com. Glouâ— pro statu et Jure Regis per predict Episcopum et sotios suos inde rei veritas inquireretur to the prejudice or in Contempt or hurt of his Crowne or Kingly Dignity or against the Peace after the Inhibition made to the Earl of Gloucester as aforesaid it should for the State and Right of the King be inquired by the Bishop and the rest of the Commissioners to the end the truth thereof might be found out it was in that Plea or Proceedings declared for Law and not at that time denyed Quod pro communi uâ—ilitate per Prerogativam suam in multis Casibus Rex est supra omnes leges consuetudines in Regno suo usitatas that the King is by his Prerogative in many Cases for common and publick good above the Law or any Customs used in the Realm and when exception was taken by the Earl of Gloucester to the Writ of Scire Facias which he alleaged ought to be a judicial Writ issuing out of a Process before had and not out of the Chancery as an original Writ Videtur it seemed saith the Record consilio Domini Regis to the Kings Councel which in that Case were the Judges of the Court of Kings Bench quod ex quo incumbit Domino Regi specialiter pro conservatione pacis suae et salvatione populi sibi Commissi quam cito rumor de tam enormi transgressione contra inhibitionem suam facta ad ipsum pervenerit in continenter debetur super hoc veritas inquiri per omnes vias quibus citius sine Juris offensa per breve illud propter exhibitionem celeris Justitiae unicuique indigenti praestando festimus patet remedium quam per aliquod aliud breve adhuc in casu isto provisum sive formatum ad intollerabilia mala evitand impediend veluti homicidia sacrilegia incendia depraedationes et alia enormia que preter mala prius illata emersisse potuerunt a casu nisi celerius remedium apponeretur in facto predicto That forasmuch as it specially concerneth the King for the keeping of the Peace and weal of his People committed to his charge as soon as ever he shall be informed of so great an offence against or contrary to his prohibition the truth thereof ought to be enquired by all the ways and meanes by which without contradiction or disturbance of the Law it may soonest be done and that by that Writ for the more speedy doing of Justice to every on that needed it there was a more speedy remedy afforded than by any other in that Case already formed or provided to prevent and
reddend erronice et sine warranto processerunt Upon view and due consideration of which Record and Writs aforesaid it appeared to the Court that the aforesaid Justices had by colour of the Writ of Procedendo which was of a later Date than the Writ of Venire Facias to cause the Record and Proceedings to be brought before the King and that by that Writ of Venire Facias the Power of Proceeding was taken from the aforesaid Justices nor in the said Writ of Procedendo was any mention made of the Bishops aforesaid Allegation nor of the Kings former Command that after the taking of the Assise they should not without Advising with the King Proceed to Judgement and that by such a giving of Judgement they had Proceeded Erroniously and without Warrant whereupon and other the Errors alledged the Judgement was Reversed and the Seisin of the Land adjudged to the Bishop In the third year of the Reign of King Edward the third the Bishop of Winchester being Attached to Answer the King Quare decessit a Parlemento tent ' apud novam Sarum absque licencia Regis contra inhibitionem Regis et in Regis contemptum Wherefore he departed from the Parliament Holden at New Salsbury without Licence of the King contrary to the Kings Inhibition and in Contempt of the King Episcopus dicit quod ipse est unus de Paribus Regni et Praelatis Regni et eis inest venire ad Parlementum Domini Regis summonit Et pro voluntate Domini Regis cum ipse placuerit Et dicit quod siquis eorum deliquerit erga Dominum Regem in parte aliqua in aliquo Parlemento debet corrigi emendari non alibi in minor Cur ' quam in Parlemento per quod non intendit quod Dominus Rex velit in Cur ' hic de hujusmodi transgressione contempt ' fact in Parlemento responderi c. To which the Bishop pleaded that he was one of the Peers and Prelates of the Kingdom and that they are to come to the Parliament of the King when they are summoned when he pleaseth and that if any of them should offend the King in any thing the King ought to correct or call them to accompt for it in Parliament and not elsewhere in any lesser Court. Wherefore he hoped that the King will for any such offence or contempt cause him to answer in Parliament To which the King's Attorney replyed Quod licet Regi de hujusmodi transgressione sectam facere vel delinquentem punire in quacunque Curia sibi placuerit c. Et Episcopus e contra ut prius ideo datus est dies That by Law the King may prosecute against a Delinquent in whatsoever Court he pleaseth which the Bishop denied as aforesaid and therefore further day was given c. King Edward the second having by his Letters Patents granted to Maurice Brownesword Officium Custod Vlnagij in Anglia postea ipsum inde amovit et conâ—ulit dictum Officium Nicholao Sherlock unde Mauricius per petitionem Regi porrectam in Bancum Regis missam petit quod dictum Officium ei restituatur The Office of the Aulnage in England and afterwards displaced him and granted the said Office to Nicholas Sherlock and Maurice Brownsword having thereupon exhibited his Petition to the King which prayed that the said Office might be restored unto him and the King having sent it to the Judges King Edward the third his Son notwithstanding in the fifth year of his raign misit breve suum Justic quod non vult ea irritari quae Pater suus in hoc fecit praecepit quod supersedeant quousque aliud inde ordinaverit c. sent his Writ to the Justices declaring that he would not have that to be made void which his Father had done and commanded them to proceed no farther therein untill his further order In a Judgment given in the Court of Kings Bench in Easter Term in the tenth year of the Raign of the aforesaid King upon a Taxation or Assesment upon the County of Hertford for the wages of Hoblers and Footmen It was declared Quod nihil renovandum seu emendand quod factum fuit per Regem that nothing was to be revoked or amended which was done by the King and in the same Term and year Super prolationem Recordorum Rotulorum Curiae al. Dominus Rex misit breve suum Justic mandando quod nihil agerent in prejudicium sâ—u ex hereditationem Domini Regis sed quod supersederent in negotio praedicto nihil inde faciendo inconsulto Rege upon producing of the Records and Rolls of the Court the King sent his Writ to the Justices commanding them that they should do nothing in his prejudice or disherison and that they should stay and proceed no further without advising with him In Easter Term in the forty sixth year of the Raign of King Edward the third Thomas Bishop of Durham was attached ad respondend tam Domino Regi quam Gulielmo sil Henr ' de Aslokey quare iâ— placito erroris in utlagaria ad sectam tam Katerine quae fuit Vxor Willi ' de Kilkenny quam ad â—ectam Dâ—iâ— Ept ' infra libertatem Episcopat ' Dunelm non misit Recordum ex Mandato Regis in Bancum Regis to answer the King as William the Son of Henry of Aslokey wherefore upon a Writ of Error brought to reverse an outlawry as well at the Suit of Katherine which was the Wife of William of Kilkenny as at the Suit of the Bishop within the liberty of the Bishoprick of Durham he had not sent the Records as the King had commanded into the Court of Kings Bench and upon a second Writ commanding him to do it or to shew cause which was delivered at his Castle of Auckland and a third Writ of the like Tenor delivered to the Bishop himself at Waltham Cross spretis mandatis record processus non misit nec causam significavit quare id facere noluit but disobeying the Kings commands had neither sent the Records and Process nor shewed any cause why he did it not Episcopus dicit quod nulla brevia ei liberavit apud Dunelm ' quod ad illud apud Waltham retornavit quod ipse est Comes Palatinus Dominus regalis cujusdam terrae vocat le Bishoprick de Durham habet omnia Jura regalia quae ad Comitem Palatinum Dominium regalem pertinent per se Justic ' Ministros suos ibidem excercenda ac Justic ' suos proprios viz. Coronatorem Cancellar Cancellariam brevia sua propria ibidâ— de Cancellaria sua emanantia quod ministri Domini Regis ad aliqua officia sua exercenda ibidem in aliquo ad omnia Com' placita se non intromittant realia et personalia quae ad comitem Palatinum pertinent infra terram praed ' quod habet Justic.
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
Crown from whence they had their first Original and Being and might by their every years Forfeitures since of too many of them by misusers or non-users take the advantage thereof And those of the better sort which have received the Honor of Knighthood and do enjoy the Dignity and respects thereof and in their Title of Knight or Cniht according to the Saxon and High and Low Dutch Languages do bear the signification of a Servant or attendant in Military affairs and so Uriah in the preface to the seven Paenitential Psalmes in King Henry the 8ths Primer is called King Davids Knight and Servant and our Knights were as Sir Henry Spelman hath informed us antiently reckoned amongst the Famulos Thanos Ministrâ—s Regis amongst the Kings special and more remarkable Servants and do or should enjoy the Priviledges not to be Decenners or Tithing men that they and their eldest sons should be exempted from being cited to appear in the Court Leets or Hundreds are as saith Camden called Equites aurati because antiently it was lawfull only for them to Guild and beautifie their Armor and Caparisons for their Horses with Gold and by the Statute made in the 8th year of the Reign of King Henry the 5th concerning only what things may be Guilded and what laid on with Silver Knights Spurs and all the Apparel which pertaineth to a Baron and above that Estate are allowed unto that noble Order when all others under the Penalty of 10 times the value are prohibited Were not saith the Lord Chancellor Egerton by the course of the Court of Star-Chamber to be examined upon any Interrogatories which might disparage them those that are to be chosen for every County which should be the Worthiest and Wisest men to be in the House of Commons in Parliament are to be milites gladiis cincti Knights in Assises of novel disseisin mort d'ancester attaint grand assise or in Writs of right two of the discreetest Knights of the Shire where the Justices shall come shall be associated unto them three are to be in Commissions of Oyer and Terminer to hear and determine forcible Entries rnd Outrages done in their County no man but a Knight was capable to be a Coroner antiently an eminent Officer of the Crown and Realm of England a plaint from a base and inferior Court could not be removed but by the Testimony of four Knights an Infant holding Lands by Knight Service made a Knight was antiently as to his person out of wardship or pupillage a Knight inhabitant or resorting to any City or Town Corporate wherein is Conusance of criminal Pleas is not to be impannel'd in any Jury for the Triall of any Capitall crime when the Sheriff had received Tallies of the Kings Debtors although he was an Officer of Trust and whose Retorne or Answer was much credited yet was not his Certificate into the Kings Exchequer of that Faith or Credit in the case aforesaid except the same were Fortified with one part of a Chirograph or Indenture Sealed and the hands of two Knights Testifying the same no Constable or Castelaine was to distraine a Knight for Castle-guard or to Execute that Service in his own Person because he is Priviledged to do it by the body of another and the like in Service of War in regard of the Dignity of Knighthood in every Commission to take the acknowledgment of a Fine to be levied of Lands a Knight ought to be one of the Commissioners in grand Assise and Writs de faâ—so judicio four Knights are to be Impannelled and not a less number in a Writ de perambulatione facienda and are so much valued and Intrusted above others as in Tryalls and Issues at Law where any of the Nobility or any Bishop is a party one Knight is to be of the Jury and are so more than many others Priviledged as their Armor and Horses as hath been before remembred are not to be taken in Execution there being so great an Honor appropriate and fixed to the degree of Knighthood as by the Law of Nations where their Knights are not also without many and great Priviledges an English Knight is not to be denyed that Honor Place and Reverence in all Forrein Kingdoms and Places where they shall have occasion to reside and Travell and are by other Nations as well as ours so much esteemed as they are not whilst they are Knights not to suffer any ignominous punishment and therefore S. Giles Mompesson and Sir Francis Michell Knights in the later end of the Reign of King James were degraded before they under went the Infamy inflicted upon them And so much were our Knights respected by our Laws as Hakelinus filius Joscii Quatribusches was in the time of King Henry the 2d fined 100 l. then a great Sum of Money for striking a Knight and Moyses de Cantebridgia 40 Marks because he was present when the Knight was compelled to Swear that he would not complain of the Injury done unto him Sir Francis Tyas a Knight in the Reign of King Edward the first recovered five pounds Damages in Wakefeild Court in Yorkshire a-against one German Mercer for Arresting the Horse of one VVilliam Lepton that was his Esquire and causing him to be unattended the Court Roll mentioning it to be ad dâ—decus dampnum praedicti Francisci quia fuit sine Armigero to the disgrace and damage of the said Sir Francis because he wanted the Service of his Esquire and a Ribauld or Clown that should without cause strike a Knight was as Britton saith to be punishâ—d by the loss of his hand that did it every man should owe so much to their benefactors as not to deny the King those regards and respects which are due unto him when the contempt or misusage of them cannot have any better effect than a dishonor of the King himself or be without a Reflection upon their Master and a disparagement to his Regal Authority which all the Histories and Monuments of former times have loudly Proclaimed to be dangerous both to King and people and do not seldome happen when Majesty is either contemned or neglected They who have no other to flye unto for help in in case of a denyall of their own Priviledges and can by his Favor and Justice procure a Writ of secta ad Curiam when a man refuseth to perform his Suit either to the County or Court Baron or de secta ad molendinum against one that refuseth to Grind his Corn at the Lords Mill quare obstruxit against one who having a liberty to pass through his Neighbours ground cannot do it by the owners threatning to hinder it essendi quietum de thelonio in the case of Citizens and Burgesses of any City or Town who have a Charter or prescription to exempt them from Toll through the whole Realm a Writ de fine Annullando to annull a Fine levied of
operate or deserve to be a Cause to Priviledge themselves their Estates or Maenial Servants from Arrest or disturbance and such a Priviledge in Parliament in the time of an Adjournment which hath sometimes continued for several Months should be allowed and thought reasonable when their business which was the cause of it was all that time in suspence or abayance and that the King who granted and allowed those Priviledges should not enjoy the like for his own Servants who are dayly busied in the Safety Honour and attendance of his Person and the great Affairs of the Kingdom and that such a Cause should produce that effect for them and their Servants and the King who desireth but the like effect or production from one and the same Cause should not enjoy it for his own Servants and that â—adem ratio should not in the Kings Case as well as in the Case of any of his Subjects produce and be a Cause of the like Law or Liberty who doth not claim the Hearing of those causes where the Plaintiffs are not his Servants as the King of France who by his Commissions of Commitimus Impowers a Court to hear and determine Causes and concernments of his Servants but only that they should ask leave before they proceed against them in any of his Courts of Justice which the Plaintiffs shall make choice of Shall the Generall or Commander of the Armies or Guards Forts or Garrisons of the King and the Admirall of a Navy or Ships have a power not to permit any of their Officers or Souldiers to be Arrested or Imprisoned without Licence first obtained and shall the Servants of the King in the attâ—ndance upon his Sacred Person in the Watch and Care of them and the Publick Welfare as well in the time of War and Peace which not seldome disapoints the horrid effects of a people-tormenting War not have a like Priviledge Are the superiour Courts of Justice not blamed when the Judges thereof by the Kings Authority can supersede Actions in Inferiour Courts many times but upon the pretence of Actions depending in their Superiour Courts as to reverse an Utlary or the like in eundo redeundo when it is not every day or all days or but some hours business or can the Justices of the Court of Common Pleas Priviledge the Serjeants at Law and forbid that they should be Sued in any other Court when they do plead at other Courts as well as in the Court of Common Pleas and are so numerous as if one by an Arrest or Impriment should not be able to move or plead his Clients business the Client having all the Writings in his own or his Attorneys custody may have and retain another Serjeant at Law who can as well understand his business to look unto it and not only protect them but the Clerks of the Serjeants at Law and in the Vacation and at their Chambers far distant from Westminster Hall when the business of the Law and Courts of Justice are laid to sleep and take their rest and that the Justices of that and other the Superiour Courts can by the Kings and not their own immediate Authority Priviledge Prothonotaries and all other Officers and Clerks of their several Courts and their Clerks when they have or may have other Clerks to do their business And the Warden of the Fleet Cryers and Tipstaves in times of Vacation and as there shall be occasion Unattach Goods and discharge Bonds and Sureties given for Appearance when there cannot be any just cause or necessity untill the Term ensuing for their attendance and Priviledges and keep from Arrest by the Inferiour Courts their Attorneys who are no Members of their Superiour Courts and even the Attorneys Clarks And not only allow that Priviledge to the immediate Officers of their Courts but extend it unto their Clarks that are subservient unto them and not deny it as hath been before remembred unto a Filacers horskeeper Their Writs of Priviledge in the Kings name declaring and publishing that such breaches of Priviledge are in nostri â—ontemptum curiae nostrae in Contempt of the King and his Court that such Priviledged person eundo redeundo in going and coming to his Courts oâ— Justice is and ought to be sub protectione nostra under the Kings protection tam ex Regia dignitate quam ex antiqua consuetudine as well in regard of his Dignity as by antient Custom is to be Ptiviledged Did Justice Vernon one of the Justices of the Court of Common Pleas in the time of Vacation when a man indebted having to an Action given special Bail before him at his Chamber in Serjeants-Inne in Chancery-lane and coming out of the Gate was Way-laid and Arrested by some Serjeants at Mace or Catchpoles of London and Arrested upon some other mans Action lay down made an Out-cry and refused to be their Prisoner of which the Judge being informed commanded the Catchpoles and Prisoner to be brought to his Chamber where they being something Surly and refusing to deliver him he threw of his Gown and taking one of them by the shoulder whereof I was an eye Witness did so shake him and threaten to commit him and his fellow Catchpoles as he enforced them to release the Prisoner and suffer him to escape And shall not the King who is the Constituent Principle and primum incipiens the only cause suppoâ—t and maintenance as well as giver of all Immunities Exemptions Franchises and Priviledges of the Kingdom Not be able to do as much as those unto whom he hath granted and permitted it and protect and Priviledge his Domestick Servants or men imployed by him but like an old Isaac over liberal to a Craving Jacob have nothing in reserve of Priviledges or Favors for his Servants who have attended our David when he was in all his Troubles and deserved better than many a participation of his Blessings or shall his Subjects like the Sullen and Selfish Nabal have so little regard of him or his Servants that do help to guard their flocks as to receive his Benefits and make notwithstanding their grumbling Ingratitude and refractory Humours the only Retorn or acknowledgment of them Hath he and his Royal Progenitors and Predecessors as the Grecian Monarchs and Common-Wealths antiently used to do from whence the Romans after they had shut their Temple of Janus and made their Military Glories impart some of their Honour to the more Civil Imployments and gown also learned it taken such a care to protect Honour and Priviledge his Ministers of Justice and their subordinate Officers in the Courts thereof whilst they officiate in his Service therein Did the Wisdom of our King and Parliament in the 32d year of the Reign of King Henry the 8th think it no inconvenience but a benefit to the people that the greater and more necessary concerns should give may to the lesser when they Ordained which hath been ever since
duly observed that the Phisitians in London should have a Priviledge not to keep Watch or Ward nor to be chosen or bear the Office of Constable or to bear any Office in the City of London or Suburbs and any such Election to be void in all which the Weal Publick was not a little concerned And the Barber Chirurgions are likewise by an Act of Parliament made in the same Parliament exempt from bearing of Armour or to be put in any Watches or Enquests which the Weal Publick without that Priviledge could not otherwise have dispensed with Could Cromwell that accomplishment of wickedness and Hypocrisie and Mr. Shepheard whom he had hired to clip and misuse our Laws upon a pretence of reformation of them allow in their modell thereof that the Servants of his miscalled Protectorship should not be compelled to serve upon Juries at Assises or Sessions or to bear the Office of a Constable or Church Warden And shall the Kings Servants that are continually imployed in the Attendance Preservation Safeâ—y and well being of his Person and people being matters of the greatest concernment be excluded or thought not worthy of the like Could the Archbishoprick and many of the Successive Archbishops of York enjoy a liberty of Fridstoll Frithstow Frid in the Saxon signifying Peace and stol sedes Cathedrae and Stow locus Cathedra quietudinis pacis a Seat Chair or place of Peace which had this Inscription Haec sedes lapidea Freedstoll dicitur pacis Cathedra ad quam reus fugiendo perveniens omnimodam habet securitatem this Seat or Chair of Stone is called Freedstoll or the Chair of Peace to which any Offender flying is to have all manner of Refuge and Security an Immunity granted unto the Church of St. Peters in York and confirmed by King Henry the 7th in the fifth year of his Reign And there is in Glossopdale in the County of Darby a place upon a Hill or large Heath some distance from the Town yet known by the name of the Abbots Chair which probably might have been endowed with the like Immunity Or shall a Priest or person propter Privilegium Clericale in regard of his being in holy Orders not be distreined when he hath no lay Fee or upon an Attachment refuseth to find Pledges because he hath no lay Fee or hath one in the Prebend and the Ordinary nor the Sheriff although he hath a Warrant to enter the Liberty without the ordinary or Bishop and the Bishop himself cannot do it sine speciali praecepto Regis cum Canonicus adeo libere teneat prebendam suam de Ecclesia sicut ipse Episcopus Baroniam canonâ—ci sunt quasi unum corpus per se in Ecclesia without a special Precept or Warrant from the King for that a Canon or Prebend doth as freely hold his prebendary of the Church as the Bishop doth his Barony and the Canons are and do make a Body or Corporation by themselves in the Church Doth the King grant and allow Cognisance of Pleas or Causes to so many of his Subjects within their Franchises and Liberties with Fossis and furcis power to punish or hang in Crimâ—nal matters and shall he not have so much Cognisance of the matters and concernments of his houshold and maenial Servants as to have leave asked before they be Arrested or disturbed in his Service which is the only cause of the Priviledge which he grants and allows to his Courts of Justice and the Officers and Servants thereof Or can any man think it reasonable that the Bishop of Eâ—y should have Cognisance of Pleas arising in his Bishoprick and the Territories thereof or the Magistrates of the City of Salisbury to have the like and supersede Actions and Pleas depending in the Court of Kings-Bench or the Lord Maior of London have and enjoy the priviledge of not having any Attachment awarded against him out of the high Court of Chancery as in the case of Sr. John Robinson Knight whilst he was Lord Mayor of London and exercised that Annual office as the Kings Lieutenant or special Servant or that Mr. John Abdy an Alderman of London in Anno Dom. 1640 being the 16th year of the Reign of King Charles the Martyr should by the Judges of the Court of Kings-Bench be allowed a Priviledg not to bear the Office of a Constable in Essex where he was many times resident at his Country-house within the Leet or mannor of Sir William Hicks Knight where by the Custome of that place every inhabitant or resiant was from house to house yearly by turnes to execute that office and upon a writ granted him directed to the Lord of the Mannor or his Steward to discharge him because he being an Alderman of London ought to be there resident the greatest part of the year and if absent may be fined all the Justices of that Court delivered their opinion that he ought to be discharged bâ— his priviledge as Attorneys attending in Courts of Justice are of such offices of Constablâ—s and other offices in the parish And although it was said that the Alderman might execute the office of Constable by deputy and his personal Attendance was not requisite by the Custome of the Mannor yet that exception was not allowed Or that Mr. Bacon A Barrester at Law of Grayes-Inn should in Trinity Term in Anno 1655. h by aforesaid Court upon view of the presidents in Francklin and Sir William Butlers Case and Bere and Jones his Case of the Midle-Temple have a priviledge allowed unto him in respect of his Barrestership and necessary attendance upon the Courts of Justice in Westminster-Hall to lay a transitory Action at Law in Middlesex when it was before laid in Northumberland and that it should not be reasonable for the King to allow his servants their aforesaid priviledges much more necessary and conducing to the weal publique May not the King as well Claim and enjoy a priviledge for his servants and their freedom from arrest without first obtaining his licence or within his virge of twelve miles compass or circumference of his Court which certainly was at the first intended by Law for more purposes then for the Jurisdiction of the Marshals or Marshalsea Court and may probably be believed to have been antiently used for an Asylum or place of peace or freedom from such kind of violences as arresting the Kings houshold servants without the Kings licence As the Universitie of Oxford doth by the grants of our Kings and their several acts of parliament in its large boundaries or precincts and the University of Cambridge the like within their Colledges Halls and Precincts for the better observation whereof in Oxford every Sheriff of the County of Oxford at his admission into his office is to take an oath that the Masters of the said Universites and their servants from Jnjuries and violences he shall keep and defend by all his Strength and power and the
obtained and would be no loosers but greater Gainers by it Do the Might and greatness of Princes and their power to give aids and Assistance where Alliance Interest or Leagues do require it or to retalliate Wrongs or Injuries done and received perswade a Priviledge and Civility to the Persons and Goods of the Embassadors and their Servants and retinue of one another although not bound thereunto by any Laws or Rules of Subjection or Allegiance And shall not a just fear Duty and Reverence of Subjects to their Kings and Princes Civility good Manners Gratitude Oaths of Allegiance and Supremacy Fear and Command of God and a dayly protection by the Kings Power Laws and Justice of themselves and their Estates Honour Reputation and all that can be of value unto them from Forreign and Domestick dangers wrongs or oppressions invite them to a forbearance of that Barbarous and undutifull way of Arresting any of his Servants without a complaint first made or licence procured to do it Or how can such a one or any of his Children without shame or confusion of Face beg or hope for Mercy or Pardon from the King for man-slaughter or some other offence mischance or forfeiture when but a week or a little before they have had so small a care of their Duty and respect unto him or their many Obligations as to disturb his Service and necessary Affairs and disparage his Servants and do all they can to ruine and undo them by an Arrest or Imprisonment without licence When at the same time they would readily subscribe to the reasonableness of the Kings delivering and freeing from Arrest the Lord Mayor of London punishing those that should do it If for permitting in the Strand or any other place out of his Liberty that the Cities Sword the Ensign or Mark of Honour given unto it within its proper Jurisdiction to be carri'd up he should be Arrested or if he or any of the Sheriffs or Aldermen should in their Passage to Whitehall to attend the King when he commanded them be Arrested upon any other Action Will not a Tenant to a Lord of a Mannor who receives not so great a protection from him nor hath so great a need of him as every Subject hath of the Kings Grace and Favour be thought by all his Neighbours to be more than a little out of his Wits that should adventure his displeasure by Arresting the Steward of his Court Valet de Chambre Coachman Butler Brewer Hors-keeper or any of his Servants without leave or licence or denial of Justice upon his Complaint first had And will they not be deemed to be more Mad that shall so far forget themselves and their duty to the King as to Arrest without licence any of the Servants of their Soveraign which is the only Rock of defence and Succour which they have to flee unto in all their distresses or for Mercy which is not seldome needed upon any Offences or transgressions against him or his Laws May not the King punish Contempts and breaches of Priviledges as well as those that do subordinately Act by the Authority of Him and His Laws or not cause as much to be done in Order to the proâ—ervation of their Authority and Jurisdictions as they usually do unto any that should disturb the necessity and duty of their places Or may not the King as supreme Magistrate cause any that shall transgress the limits of their obedience in Arresting his Servants without licence to be Arrested or Imprisoned for such an affront or contempt of Majesty and the Supreme Power when it hath been ordinarily done and justified by some Lords of Mannors and Liberties in the Case of Sheriffs and Bailiffs presuming to Arrest any man within their Liberty without a Writ of non Omittas propter aliquam libertatem or special Warrant where the Lord of the Mannor hath neglected to do it Or must the King when any wrong or injury shall be done to his Servants suffer such contempt to be remedyless and only say why do you do so who when he doth cause the undutifulness and unmannerliness of such Offenders to be punished by a few days gentle restraint cannot with any truth or Reason be said to have given away their Debts when at the most it is but a small delay and doth many times occasion them to be sooner and less chargeably paid than it would be with an Action or Suit and the many Animosities Vexations and Heats which do usually attend Actions or Suits at Law Did our Magna Charta prohibit or give away any of the Liberties and Priviledges of the King and his Servanâ—s which are necessary for the Support and just means of Government and that high Authority with which God and the Law have intrusted him Can the King by his Writ cause a man or his Cattel or Goods to be Arrested and taken in Withernam untill the person of a man or his Cattel or goods wrongfully Arrested be delivered or freed from restraint and shall it not be as lawfull for the King by Arresting or Imprisoning the Party that did or procured it to enforce the delivery of a Servant wrongfully or unduly Arrested without his leave or licence first obtained Is the Kings Service the only cause of the Priviledge of Parliament so operative and powerfull in its effects as a Member of the house of Commons newly elected is so entituled to his Priviledge as before his admission or Oath taken the Infringers thereof have been severely punished as it was upon great debate and Examination adjudged in Parliament in the Case of William Johnson a Burgesse of Parliament in the first year of the Reign of Queen Mary and the like for Arresting upon an Execution Sir Richard Fitzherbert Knight a Member of Parliament in the 34th year of the Reign of Queen Elizabeth and that kind of Priviledge so Watched and Guarded and in all its parts and circumstances so taken care of and inviolably kept As it may not be renounced or quitted by any one Member without a breach of Priviledge to all the rest nor is any leave to be given upon Petition or any the most urgent necessities of a Plaintiff or Creditor to molest or Imprison any of them or their Servants during the Session of Parliament and the time of Priviledge allowed them before and after them And cannot the people of England be well content and think themselves to be in a better Condition when in the Case of the Priviledge of the Kings Servants they may in the time of Parliament or without have licence upon a reasonable time prefixed for satisfaction to take their course and proceed at Law against them Shall the Vallies rejoyce in their Springs and pleasant Fountains and the Spring or Fountain it self that distributeth those living and refreshing Waters have no part thereof Hath the Chamberlain of the Lord Mayor or City of London Power to commit a Freeman of that City to Ward So that he do
f Ibid. 885. Tit. City of Westminster g Cokes 12 Reports Mich. 5 Ja. h Bracton lib. 3 de Actionibus cap. 5. i Ibidem cap. 7. k 18 E. 1. l 20 E. 1. m 21 E. 1. coram Rege n 33 E. 1. Ryleys placit Parliamentorum 3 E 1. cap. 45. 10 E. 1 Statute of the Exchequer 13 E. 1 Statute of Acton Burnel 13 E. 1. 25 E. 1. cap. 2. 28. E 1. eodem Anno cap. 5. 1 E. 1.3 eodem Anno cap. 5.9.14 17. 2 E. 3. 25 E 3. 28 E. 3. 2 R. 2. 9 R. 2. 10. R. 2. 5 H. 4. Rot. Parl. in 62. 4 H. 5. 10 H. 6. cap. 4. o Fleta lib. 2. ca. 3. sect 4 5 6 7 8. Ibidem Sect. 8. 9. p Rot. pat 19. H. 6. parte 3 m. 3 m. dorso r Bracton lib. 5 fol. 413. Cokes preface to his 8 Reports s Plowdens Comment â—6 â— t Asser Menenensis de rebus gestis Alfredi Selden 2 part â—it of Honor ca. 5. sect 5. u Bracton lib. 3. de Actionibus cap. 12. fol. 108. w Coke Preface to his 8 Reports x Plowdens Commentariâ—s 228. y 13 E. 1. cap. 45. 1 H. 7.5 Cokes 12. Report z Plowdens Comment 502 a. b. a Bract. lib. 1. de rerum divâ—sione c. 8 lib. 3 de Actionibus cap 9. Lib. 2. de Acquirend Dominium cap. 24. b Register of Writs 267. c Coke 2 Part Institutes d Br. 14. H. 9.8 e Coke â— Par. Instituâ—es cap. 29. p. 52 f Br. Tit. Contempt 6. 24. E. 3. g 39 H. 6.17 Br. Tit. Monstrans de faits Tit. 79. h Bract. l. 3. Tit. contra quem competit Assisa Stamfords exposition of the Kings Prerogative cap. 15. Tit. Petition cap. 22. i Br. lib. 3. cap. 12. sect 1. â— k Br. lib 3. Tract de Corona cap. 14 sect 4. l Seld. Tittles of Honor Mr. Pryns Animadversions upon Sir Edward Cokes 4 th part of the Institutes p. 1.11 249. m Cokes 12 Reports Tri. 5 Jacobi n 6 R. 1. Rot. 6 in recept Scaccarii o Bract. in Proemio de Legibus consuetudinibus Angliae l. 1. c. 8. sect 5. p 1 E. 1. coram Rege Trin. 5. q Hill 3. E. 1. Rot. 1. Trin. 19. E. 1. coram Rege r Pas. 9 E. 1. coram Rege Kanâ— Rot. â—6 s 18. E. 1. coram Rege t Hillary 20 E. 1. coram Rege wallia Rot. 37. u Cook 2 par Institutes w Mich. 3. 34. E 13 in Banco Regis Rot. 103. x Farinacius d quaest· 63. cap. 3. n 80 98 139. y Trin. 19 E. 2. coram Rege Glouc. Rot. 174. z Trin 3. E. 3. coram Rege Suth Rot. 9. a Mich. 5 E. 3. coram Rege b Pas. 10 E. 3 â—oram Rege c Pas. 10 E. 3. coram Rege Wilts Rot. 50. d Pas. 46. E. 3. Glouc. Rot. 33. coram Rege e 6 R. 1. Rot. 1. in dorso f Hil. 38. E. 3. coram Rege Somer rot 37. ibid. Wilts in dorso g Et Rot. Pat Rot. claus 13. E. 3. m. 21. h Cokes Comment upon Magna Charta cap. 29. i 8 H 6.19 a. b. k 16 H. 4. Fitzherbert Tit. Monstrans des Faiâ—z l Trin. 9 H. 5. Rot. 89. m Bract. lib. 3. de Actionibus cap. 11 sect 9. n Register of Writs 58 b. 59 a. p 43. Eliz. q 1 Jac. r Lambard â—irenarch et tract de officio Constabularij s 21 E. 1 21. E. 1. t Mich. 18. E. 3. coram Rege Rot. 162. u Sir Thom. Ridleys view of the civil Ecclesiastical Lawes 210 211. w Rot. pat 11 12. Johannis x Reg. cap. v. 27 28 3. x Johannes Redin de Majestate principis 25. y Besoldus de jure Majestatis ca. 1. § 2 z Johannes Redin de Majestate principis § 26. a Num c. 16. b 2 Sam. 12. v. 27 28. c Jer. 52. v. 31 32. e 1 Reg ca. 8. v. 66. f Salmutius Comment in Pancirollum g Eadmer Hist. lib. 1. p. 26.27 28. Et Selden m. praefat ad â—undem librum 13 E. 3. ca. 43. i rot Parl. 42 E. 3. k Petit Parl. 14 R. 2. l rot Parl. 17 R. 2. m. 11 12. m 7 H 7. n Articles against Cardinal Wolsey in Bakers Chronicle Cokes 4 th part of the Institutes o 28 H. 8. ca. 11. p Blunts Nomo lexicon Carta Aethelstani Regis penes Carolum Fairfax Arungerum q rot pat 11. Johannis r 4 H. 4. ca. 1. s 3 H. 5 ca. 1. t 52 H. 3. â—a 14. u Spelman glossar in voce Thanus w Saxon breve Selden Titles of Honor 2 part ca 5. § 33. x Kitchin 33. y 8 H. 5. z Hudsons Treatise of the Court of Star-Chamber Ms. 188. a 13 E. 1. ca. 30. b New Statute of the Exchequer or Statute of Ruithland 10 E. 1. Countee de Salops case Cokes Reports 7 E. 3.29 Vide a Writ sent by the King to the Justices of both Benches called the Statute of Carlile 15 E. 2. c Selden tit honor ca. 5. § 48. d Selden tit honor 783 784.833 ca. 5. § 37. e Britton ca. de Appell de Maihem f Bodin de repub lib. 6. g F.N. B. 158. h Register of Writs 153. i Fleta lib. 4. ca 26. k Fitz. Herberts nat Bre. 226. l Register of Writs 15. b. m Ibid. 174. n Ibid. 262. o F. N. B. 151. Register of Writs 159. p Register of Writs 147. Bracton lib. 2. ca. 26. § 8. q Statute of Gloucester 30 E· 1. r Blunts Nomo Lexicon Cokes institution of Courts s Trin. 9 H. 6. rot 20. t Elsings modus tenendi Parlementum 144 145 146 Mr. Pryns Animadverâ—ions upon Cokes 4th part of the Institutes u Mich. 38 H. 6.12 Pass 38 H. 6. w Trin. 25 E. 1. coram Rege Oxon 22.9 H 6.11 E. 4 6 E. 6. Dier 71. x Mich. 3. Car. prim Crokâ— 1. part 84 85 y In veter novo libr. intration tit Privileg Brook tit Priviledg 40. vet lib. intration tit Priviledge z Kippingus de antiquitatibus Roman lib. 2. ca. 4 a 32 H. 8. ca. 40. b 32 H. 8. ca. 42. c Shepheards Office of a Justice of Peace Constable c. d Blounts Nomo Lexicon e Hillar 47 E. 3. coram Rege Cant. rot 39. f Hillar 38 E. 3. coram Rege rot 22 Wilts in Dors. (g) Crokes Reports 16. Car. 585. Alderman Abdyeâ— Case (h) Banco Regisinter Bacon Ramsey in Termino Trin. 1665 460. (i) Vide Book of Oathes 227 Printed in Anno 1649. Besoldus de Jure Academiarum l rot pat 49. 53 H. 3. 22 E. 1. War Mid. in quo Warr anâ— Assis. rot 16. in dors inter placita Coronae Assis. quo Warrant 14 E. 2. rot 91. tres Pasch. rot claus ejusdem Annim 3. m Vide The Act of Common Councel and the Oath of a Freemanâ— of London n Dugdales Monasticon 1. Tome 55. o Sir Richard Bakers Chronicle 159. p Levet recuâ—il d' Aucuns notables arrests en le Parlement de Paris ca. 17. q Vid. Priviledges Granted by Philip the 4th King of Spain in Anno 1645. r Rot. claus H. 3. 11 H. 4 15. Mich 8 H. 5 in Banco Regis rot 15. s Cokes 4th part of the Institutes M. S. penes virum Cl. Johannem Berkenhead Equitem Aurat t Stows Survey of London tit antient Laws and Customs of the City of London