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
untill it was by that prudent Prince restrained and limited to the Authority and Jurisdiction which it now enjoys was much more large and extensive than now it is and that of the Lord Chamberlain of the Kings House whose power and priviledge over that part of the Kings Servants which are under his Authority being exempt from that of the Lord Steward having been not by any Act of Parliament prohibited may not be thought to exceed the power and auâ—hority inherent in their Offices and places when they shall punish or commit to prison any who shall attempt to violate or infringe the honour and priviledges of the Kings House or Servants derived unto them from his Supreme Authority who having Ordinariam Jurisdictionem in regno suo pares non habet neque superiores an Ordinary and Supreme Jurisdiction and hath neither Peer nor Superior may as well protect his Servants in his affairs and business in his House or about his Person and punish any that shall hinder them therein as the Judges in his Courts of Justice who neither have or can claim any other power or authority than what he delegates or entrusteth them withall do upon all occasions in the Case of their Officers Clerks or menial Servants They therefore who shall so much suffer their reason and understanding to wander and be mislead as to deny the Kings most Honourable Privy Councell or any other Court within their Cognisance Power and Authority tueri Jurisdictionem such a coercive power as may support their Jurisdiction may think but never find they have any ground or cause for it and if they please to tarry for a conviction untill the never failing unhappy consequences shall bring them too late to acknowledge that which in viridi observantia by late abundant sad experiments is more then a little visible in the disorders of the present Church Government occasioned by the reverend Governors want of power who having their hands as it were tyed behind them are made to be as good old Ely admonishing and reproving to no purpose and how little the directive or commanding Power of Laws will signifie where the coercive shall be absent may bitterly repent it And will meet with as little reason to second or assist their opinion that a priviledged person imprisoned contrary to his priviledge is so in the custody of the Law as not to be able to claim or make use of his priviledge to release or discharge him when the frequent use of discharging men out of prison by Habeas Corpus Supersedeas or Writs of Priviledge and their Bayles or Sureties given for their appearances discharged And in matters of Parliament Priviledge can teach and prove the contrary for in the Case of Trewynniard a Burgess of Parliament in the Court of Kings-Bench in Easter and Trinity Term in the 38th year of the Raign of K. Henry the 8th the said Trewynniard was discharged by his Priviledge although he was arrested upon an Utlary after Judgement and the Judges of the Court of Kings Bench did adjudge and declare That every Priviledge is by prescription and every praescription which soundeth for the Common-weal is good although it be a prejudice to any private person And that such a priviledge hath been alwayes granted by the King to his Commoners at the request of their Speaker the first day of the sitting of Parliament And it is common reason that forasmuch as the King and all the Realm hath an interest in the Body of every of its Members it seemeth that the private commodity of any particular man ought not to be regarded for it is a maxime That magis dignum trahit ad se minus dignum the more worthy is to be preferred before the lesse and concluded That the Parliament is the most High Court and hath more Priviledges then any Court of the Realm and that in such a Case every Burgess is to be priviledged where the Action is but at the Suit of a Subject and that by such a temporary discharge the Execution is not discharged but remaineth When as men protected that were not the Kings Houshold Servants had their Protections allowed aâ—ter the commencement of the Action sometimes after Issue joyned at other times of the nisi prius or Triall at other times after the Verdict given and sometimes at the dayes in Banck and where any Defendant neither protected or priviledged was imprisoned he was not so believed to be in the Custody of the Law but that the Judges or any one Judge of the Court out of which the Process or Writ issued might not as well out of the Term as in the Term grant in their Subordinate Jurisdiction a Supersedeas quia improvià e or erronice emanavit because there was some Error or mistaking in the awarding or granting of the Writ by which he was taken And those Authentique Books of the Register of Writs old and new Book of Entries and the presidents therein contained will sufficiently testifie that arrests of priviledged persons and the goods or persons of priviledged persons have been and ought to be discharged from Attachments Arrests and Imprisonments and that which they would call the Custody of the Law by Habeas Corpus Supersedeas or Writs of priviledge and their Bayles or Sureties given for their Appearances discharged But however the pride and disrespectfull and disobedient humors of too many of our Nation be now so much in fashion as to quarrell with every thing of Authority and the Regalities of their Soveraign the dayes of old and Ages past will evidence that the before mentioned Priviledges of the Kings Servants in Ordinary were for ought appears to the contrary believed to be so legall and reasonable CHAP. VIII That the aforesaid Priviledge of the Kings Servants in Ordinary hath been legally imparted to such as were not the Kings Servants in Ordinary but imployed upon some temporary and casuall affairs abroad and out of the Kings House AS it was desired and thought fit and necessary to be communicated to such as were not the Kings Servants in Ordinary or his Domesticks but only imployed as extraordinaries upon some of his special affairs or occasions which were but Temporary and to that end it was requisite that some signification or notice should be given that they were so imployed and that they should not be arrested imprisoned or disturbed in it but be protected from it the like being also done when any of the Kings Servants in Ordinary where imployed out of the Kings House or Pallace by their Writs of Protection under the great Seal of England for otherwise probably it would not have been known that they were his Servants either ordinary or extraordinary or what was their business And therefore in the Register of Writs a Book in the Statute of Westminster the second made in the 13th year of the Reign of K. Edward the first in the year of our Lord 1285 called the Register of the Chancery
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
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
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
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
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
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
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-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
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
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
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
under His Seal and Teste Me Ipso directed to all His Courts of Justice And are as Bracton saith Formata ad similitudinem Regulae Juris framed by and according to the Rules of Law whiâ—h warranting many of the Proceeding thereof are in the Assize betwixt Wimbish and the Lord Willoughby in Trinity Term in the sixth year of the Reign of King Edward the Sixth said and not denyed to be Law and the Act of the King but not of the Chancellor So as they who shall endeavour to impose upon other men that the King is not by Law presumed to be present in his Court of Kings Bench where the Records do mention the Judgements given therein to be coram Rege before the King as if he were personally present with the Judges of that Court who are assigned to assist Him may as to the Kings Power in matters of Justice and over the Judges and Courts delegated by Him do well to seek a reason which is justly to be feared will never be found why it should be Law or Reason for King Alfred in the discords or ignorance of his Subordinate Judges in the distribution of Justice to hear and determine the Causes Himself or for King Canutus long after to judge the Causes of such as complained unto him when our Bracton doth not at all doubt of it when he saith that the Judges nullam habent Authoritatem sed ab alio i. e. Rege sibi Commissam cum ipse qui delegat non sufficiat per se omnes Causas sive Jurisdictiones terminare they have no Authority but what they are intrusted with by the King who granted it when as he who delegated them is not able or sufficient by himself to hear aad determine all Causes in every Jurisdiction unto which our Register of Writs that Pharmacopeia Director and Magazine of Medicines and Remedies for many a Disease in the Estates and Affairs of the People which Justice Fitz Herbert in his Preface to his Book De Natura Brevium of the Nature of Writs calleth The Principles of the Law and the Foundation whereupon it dependeth and in Plowdens Commentaries is as to many things truly said to be the Foundation of our Laws and so Authentique as Brown Justice in the Case betwixt Willon and the Lord Barkley in the third year of the Reign of Queen Elizabeth declared that all Writs were to pursue the Forms in the Register and it was enough to alledge so is the Register will easily assent and all our Books of the Law all the Practice and Usage of our Courts of Justice all our Records Close and Patent Rolls and our Kings hearing and determining of Differences betwixt the Common Law and Ecclesiastical Courts and Jurisdictions and their making of Orders to reconcile the Proceedings of the severall Judges thereof and the like betwixt the Admiralty Court and the Courts of Common Law ordered decided and agreed before King Charles the First and His Privy Council in the ninth year of His Reign the Judges in criminal Matters not seldom attending the King for a Declaration of His Will and Pleasure where a Reprieve Pardon or Stay of Execution shall be necessary will be as so many almost innumerable powerful and cogent Arguments to justifie it And a common and dayly Experience and the Testimony of so many Centuries and Ages past and the Forme used in our Writs of Scire Facias to revive Judgements after a year and a day according to the Statute of Westminster the 2. with the words Et quia volumus ea que in Curia nostra rite acta sunt debite executioni demandari because we would that those things which are rightly done in our Courts should be put in execution c. may bear witness of that Sandy Foundation Sir Edward Coke hath built those his great mistakings upon and those also that the King cannot propria Authoritate Arrest any man upon suspition of Treason or Felony when the Statute made in the third year of the Reign of King Edward the First expresly acknowledgeth that the King may Arrest or cause men to be Arrested as well as His Chief Justice without distinction in ordinary and civil or criminal matters and when by the beforemention'd Opinions of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Lord Chief Justice of the Court of Common-Pleas and of all the Judges of England delivered under their hands in the Four and thirtieth year of the Reign of Queen Elizabeth it was acknowledged that She or the Lords of Her Privy Council might do it And in the before recited great Case of the Habeas Corpora in the Reign of King Charles the Martyr there was no question made but that the King might lawfully do it with a cause expressed in the Warrant And many a Nobleman and others hath in several of our Kings Reigns either upon suspition of Treason or Flagranti Crimine in or very near the acting of it or upon great Misdemeanors been Arrested by our Kings and Princes onely Command and sent Prisoners to the Tower of London As the Great Mortimer Earl of March by King Edward the Third the Pompous Cardinal Wolsey and Queen Ann of Bulloin by King Henry the Eighth the Duke of Northumberland by Queen Mary the Duke of Norfolk and Earl of Essex by Queen Elizabeth for Treason Robert Earl of Somerset and his Lady committed for Felony Sir Tho. Overbury for refusing to go Ambassador when he was sent by King James Henry Earl of Oxford for striking up a Great Lords heels in a Solemnity of a great Feast when the French Ambassador was entertained in Westminster Hall for presuming to offer to wash his hands after the King had washed in the Basin which as Lord Great Chamberlain of England he had holden to the King Thomas Earl of Arundel for marrying the Lord Matravers his Son to the Sister of the Duke of Lenox and Richmond without his Licence and Philip Earl of Pembroke and the said Lord Matravers for striking and scuffling with one another in the House of Peers in Parliament and some others by King Charles the First and some by His now Majesty and our Parliaments have many times in some Charges brought against offenders of the Weal Publique petitioned our Kings and Princes to do it and many others have been so committed in the Reigns almost of all our Kings and Princes of which every Age and History of this our Kingdom can give plentiful Examples which we may believe to have been done by good and legal Warrant when in all our many Parliaments and Complaints of the People therein such Arrests and Imprisonments have not been in the number of any of their complained Grievances for otherwise what Power Writ Authority or Warrant of a Judge or Justice of Peace could have seiz'd upon that Powerful Mortimer and taken him in Notingham Castle out of the amorous Embraces of Queen Isabel the
and 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
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
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