Galfridum filium Petri gladio Comitatus Essex qui licet antea vocati essent Comites administrationem suarum Comitatuum habuissent tamen non erant accincti gladio Comitatus ipsa illa die servierunt ad mensam Regis accincti gladiis did upon the day of his Coronation gird William Marshal with the Sword of the Earldome of Striguil or Pembroke and Jeffery Fitz-Peter with the Sword of the Earldome of Essex who although they were before called Earls and had the government of their Earldomes yet until then were not invested or girt with the Sword of their Earldomes and the same day they waited upon the King as he sate at meat with their Swords girt about them and the service of our Earls and Nobility were held to be so necessary about their Soveraign in the Reign of King Edward the second as John de Warrenna Earl of Surrey had in the 14th year of that King a dispensation not to appear before the Justices Itinerant before whom in certain of his affairs he had a concernment in these words viz. Edwardus dei gratia Rex Angliae c. Justitiariis notris Itineratur in Com. Norff. Quia dilectum fidelem nostrum Johannem de Warrenna Comitem Surrey quibusdam de causiis juxta latus nostrum retinemus hiis diebus per quod coram vobis in Itinere vestro in Com. praedicto personaliter comparere non potest ad loquelas ipsum in eodem Itinere tangentes prosequendi defendendi nos ex causa praedicta Indempnitati praefati Comitis provideri cupientes in hac parte vobis mandamus quod omnes praedictas loquelas de die in diem coram vobis continuetis usque ad Octabas Paschae prox futur Ita quod extunc citra finem Itineris vestri praedicti loquelae illae andiantur terminantur prout de jure secundum legem consuetudines regni nostri fuerit faciend Edward by the grace of God King of England c. to his Justices about to go the Circuit in our County of Norfolk sendeth greeting In regard that for certain causes we have commanded the attendance of John of Warren Earl of Surrey upon our person so as he cannoâ— personally appear before you in your Circuit to prosecute and defend certain actions or matters wherein he is concerned we desiring to indempnifie the said Earl therein for the cause aforesaid do command you that you do from day to day adjorn the said Pleas and Actions until eight dayes after Easter next so as you may according to the laws and custome of our Kingdome before the end of your said Circuit hear and determine the said matters or actions In which Writ the said Earl being descended from VVilliam de VVarrenna who marryed a daughter of King VVilliam Rufus was not stiled the Kings Cousin as all the Earls of England have for some ages past been honored either by the stile of Chancery or the Secretaries of State in a Curiality with which the more antient and less Frenchified times were unacquainted for notwithstanding an opinion fathered upon our learned Selden that in regard the antient Earls of England being the Cousins or of the consanguinity or affinity of William the Conqueror or many of the succeeding Kings those Earls that were afterwards created did enjoy that honourable Title of the Kings Cousin it will by our Records and such Memorials as time hath left us be evidenced and clearly proved that all the Earls which William the Conqueror and his Successors have created were not of their Kindred or Alliance and those that were of the consanguinity of our Kings and Princes as Awbrey de Vere the first Earl of Oxford whose Father Awbrey de Vere marryed the Sister by the half blood of William the Conquerour was neither in the grants of the Earldome of Oxford and office of Great Chamberlain of England by Maud the Empress or King Henry the second her Son stiled their Cousin nor William de Albiney formerly Earl of Sussex who marryed Adeliza Widdow of King Henry the first Daughter of Godfrey Duke of Lorrain in the grant of the Earldome Castle and Honour of Arundel by King Henry the second was termed that Kings Cousin neither in the recital in other grants wherein the great Earls of Leicester and Chester are mentioned is there any such intimation for in the first year of the Reign of King John William Marshall Earl of Pembroke William Earl of Salsbury and Ranulph Earl of Chester and Lincoln in the second year of King Henry the third had it not and in the Summons of Parliament Diem clausit extremum and other grants or writs of divers of the succeeding Kings in the former ages until about the Reign of King Edward the fourth where mention was made of some of those and other great Earls of this Kingdom there were none of those honorary Titles and it is not at this day in the ordinary Writs and Process where they are named either as Plaintiffs or Defendants and in France where those graces are in the Royal Letters and Missives frequently allowed to the greater sort of the Nobility howsoever the Queen Mother and Regent of France was about the year 1625. pleased in a Letter to the late George Duke of Buckingham to give him the honour to be called her Cousin very often omitted And those honours of attending their Kings and being near his person or being imployed in his Royal commands were so desirable by as many as could by their virtue antiently the Seminary and cause of all honour obtain it as they thought the service of their Prince not happiness enough unless their Heirs and after Generations as well as themselves might partake of the honour to do service unto him and therefore could be well content to have some of their Lands which some of our Kings of England gave them which they hoped to hold unaliened to them and their Heirs in Fee or in Tayl astrictae obliged and tyed also as their persons to those no inglorious services as the Earls of Oxford holding the Castle of Hedingham in the County of Essex and the Manor of Castle Campes in the Counties of Cambridge and Essex to them and their Heirs in Tayl by the Tenor and Service of being great Chamberlain of England and the Manors of Fingrith in the County of Essex and Hormead or Hornemead in the County of Hertford descended unto them by the Marriage of a Daughter and Heir of the Lord Sanford by the Service and Tenure of being Chamberlain to the Queens of England die Coronationis suae upon the dayes of their Coronation that of great Chamberlain of England being an Office distinct and separate from that of Chamberlain of the Kings House which was as appeareth by many Charters of our antient Kings and their Chamberlains Subscriptions thereunto as witnesses long before the grant of great Chamberlain of England and as then are now only
is their dignity service and attendance upon the King and Weal publick more then any supposition of their great Estates sufficient to be distreined which hath founded and continued those just and warrantable liberties and priviledges unto them tam tacito omnium consensu usuque longaevo derived and come down unto us aswell from antiquity the law of Nations and the civil and Imperial laws which were no strangers unto us above 400 years after the comeing of our blessed Saviour Christ Jesus into the flesh or when Papinian the great civil Lawyer sate upon the Tribunal at York seven years together whilst the Emperor Severus kept his Court and was there Resident wherein are only to be found the Original g of many honorable rational and laudable customes of honour and Majesty used not only in England but all the Christian Kingdomes and Provinces of Europe quam Regni Angliae Institutis latisque quae in Juris necessitatemque vigorem jam diu transiit as our common and Municipal laws and Reasonable customes of England necessarily to be observed for if it could be otherwise or grounded only upon their sufficiencies of Estate whereby to be distreined every Rich Man or good Freeholder which differ as much from our Nobility as the Hombre's Rico's rich men without priviledges do in Spain from the Rico's Hombre's dignified and rich men might challenge as great a freedom from arrests especially when our laws do allow an action upon the case against a Sheriff or other which shall make a false Retorne that a Freeholder hath nothing to be distreined when he hath estate sufficient whereby to be summoned or distreined but it neither is nor can be so in the case of our Nobility and Baronage who are in times of Parliament to be protected by their Dignities and the high concernments of Parliamentary affairs from any molâ—station or disturbance by any Writs or Processe either in their Persons or Estates and are by some condiscention and custome in favour to such as may have cause of action against them in the vacancy of Parliaments and when their priviledge of Parliament ceaseth become liable to the Kings Writs or Processe yet not by any Processe of arrest or imprisoning of their persons but by Writs of Summons Pone per vades salvos taking some Pledge or Cattle that they shall appear and Distringes to distrein them by their Lands Tenements Goods and Chattels untill they do appear and answer to the action that which is retorned or levied thereupon being not retorned into the Exchequer or forfeit to the King if they do appear in any reasonable time unto which priviledge of Process the Bishops of England and Wales holding by Barony may justly claim or deserve to be admitted when as the Metropolitans having an Estate for life in their Bishopricks and Baronies ought not to have a Nihil habet retorned against in their several Provinces nor the Suffragan Bishops in their Diocesses nor have their dignities subjected to the violence of Arrests or sordid usage of prisons hindering the execution of their sacred Offices in the Government and daily occasions of the Church of God neither are any of the Baronage or Bishops of England to be distreined in their Journeys per equitaturam by their Horses or Equipage for any Debt or upon any other personal action whilst they have any other Goods or Chattels whereby to be distreined So as if any of the Temporal Baronage of England holding their Earldomes or Baronies in Fee or Fee Tail or for Life should by the prodigality of themselves or their Ancestors or by misfortunes troubles or vicissitudes of times as too many have been since their honors have not been as if rightly understood they ought to be accounted feudall and the Lands thereunto belonging as the lands of the Bishops and spiritual Barons unalienable be reduced to a weak or small Estate in lands or should have none as John afterwards King of England a younger son of King Henry the Second was who untill his father had conferred some honors and lands upon him was called Jean sans terre John without land yet they having a Freehold in their honors and dignities and the Dukes Marquesses Earles and Viscounts of England having at their Creations some support of honor by way of Pension or Annuity yearly paid unto them by the King and his Heirs and Successors annexed thereunto and not to be severed from it The antient Earles having the third peny or part of the Fines and Amercements due to the King out of the Counties of which they were Earles afterwards about the Raigne of King John reduced to 20 Maâ—kes per annum as all the later Earles and Viscounts now have and the Dukes and Marquesses a greater yearly annuity or Creation mony as 40 Marks or 40 l. per an And all the Nobility and Baronage of England having besides a Freehold in their honors and dignities and their houses nobly furnished some of them having above 20 thousand pounds per an lands of Inheritance many above 10 others 7 6 5 4. or 3 thousand pounds per annum lands of Inheritance in Taile or for Life and none unless it be one or two whose misfortunes have brought their Estates for Life or Inheritance something under one thousand pound per annum There can be neither ground or reason for any Sheriff upon any the aforesaid Writs awarded or made against any of them to retorne Quod nihil habet per quod summoniri possiit that he had nothing whereby to be summoned attached or distreined and if that could as it cannot rationally be truly or legally done yet the Judges sworn unto the observance of the laws and to do Justice unto all sorts of people cannot in any of their Courts award or cause Writs or Process of Capias against them to arrest or imprison their bodies upon any action of debt or other personal actions not criminal which makes an impossibility for any of them in civil actions to be outlawed And if they had neither Creation mony nor Lands Goods or Chattels which is neither rationally or probably to be either imagined or beleived yet they are not to be denied those honorable priviledge so antiently and by the laws of nations belonging to their high calling and dignities when as the antient Charters or Creations of Earls those later of some of our Dukes Marquesses Viscounts and Barons having words and clauses amounting to as much do grant them as in that antient one by King Henry the second to Earle Aâ—berick or Albercius de tere of the Earldome of Oxenfordscyre their honors ita libere quiete honorifice sicut aliquis comitum Angliae liberius quetius honorificieutius habet as freely and honorably as any Earl of England held his Earldome as that grant of the same King to William d'Abbiney of the Earldome of Arundell cum omnibus libertatibus liberis consuetudinibus predicto honori pertinentibus
expresly provided that the Testimony of Servants should not be allowed in Criminal Matters there was an exception for the better sort of the Kings Servants King Ina who Raigned here over the West Saxons about the year of our Redeemer 712 amongst his Laws Suasu Heddae et Erkinwaldi Episcoporum suorum omnium Senatorum et natu majorum Sapientum populi sui in magna servorum dei frequentia by the advice of Hedda and Erkenwald his Bishops all his Senators Elders and wise men of his people and Commonalty attended by many of the Clergy did ordain several degrees of Mulct or punishment for breach of peace in Towns according to the qualities of the owners or Lords thereof videlicet in oppido Regis vel Episcopi pacis violatae paena 120 solidorum in oppido Senatoris seu Ealdormannes ruptae pacis 80 solidorum in oppido Cyninges Thegnes seu ministri Regis 60 solidorum et in oppido custodis pagant cujuscunque predia possidentis pacis tributae multa 35 solidorum censeatur that is to say In every Town of the King or a Bishop for breach of the peace 120 shillings in the Town of a Senator or Alderman 80 shillings in a Town of a Servant of the Kings 60 shillings and in the Town of the Bayliffe or Reeve of any other man having Lands 35 shillings Charles the great or Charlemain Emperor of the West and King of France who began his raign in the year 768 and after him the Emperor Lodovicus by his goodness and Piety sirnamed Pius or the Godly considering that in viros animosos plus honoris posse quam opum remunerationem that to men of Courage and Spirit Honor was more in esteem then Riches edicto mandaverunt ut ipsis in tota ditione sua honor haberetur did by their Edicts which in those more obedient times when Subjects were not so Critical as too many of us now are in their Princes Commands by a Torture of farre fetched or Irrational Interpretations put upon their just Authority in order to the Weal-Publick provide that in all their Dominions an Honour and respect should be given to their Domesticks or Servants And therefore Antiquity and the Learned Bignonius were not guilty of any Error when they adjudged that Dignitas Domestici the Dignity of the Kings Houshold Servants fuit non contemneâ—da was not to be contemned but was greatly honoured under the Raigns of the first and second Kings of France and about the Raign of Clodoveus or Lodovicus the 12th King of the first Race of the Kings of France who Raigned about the year of our Lord and Saviour 648. Inter praecipuos Regni ministros saepe enumerantur Comites Consiliarii Domestici et Majores Domûs c. Amongst the principal of whom were reckoned the Lord Steward Earls Counsellors of Estate Chancellor and Chamberlane the most Honourable and great men of the Kingdome who did sometimes in the Court attend the King in the hearing and determining of Causes and were with those great Officers of the Houshold accounted to be de Honestate palatii seu specialiter ornamento Regali a part of the Honor of the Kings Palace or Court and an Ornament to the Royal Dignity and the Domesticks and Servants of that great and vertuous Charlemain had that respect given unto them which a just consideration of the Honor of their Soveraign and concernment of the Weal-publique in his business or affairs had procured for them as Solebant subditi non modo reâ—ipere missos et legatos Principis Comites Duces et etiam ministros verum et viaticum eis pro unius cujusque dignitate praestare the people did use not only to receive the Kings or Princes Earls Dukes and their Attendants but to give them Entertainment according to their several degrees or qualities it having been ordained by him ut de missis suis vel de caeteris propter utilitatem suam Iter agentibus nullus mansionem eis contradicere praesumat that no man should presume to deny lodging and entertainment unto any imployed in his service King Alfred or Alured who began his Raign here about the year of our Lord 870 and had resident in his house the Sonns of many of his Nobility which did attend him did in that time of the more incult and fierce behaviour of the old English and Saxons and their Neighborhood with their Enemies the usurping Danes take care in the League or peace which he was constrained to make with King Guthrun the Dane to provide that in case of a Minister Regis incusatus as the Version or Translation renders it any Servant of the Kings accused for Homicide Et id Juris in omni lite and the same Law to be in every other Action or Suit there should be a Jury of 12 of the Kings Servants or if the party grieved should be the Servant of another King non nihil inferior not much inferior to the Kings probably intended of King Guthruns it should be tryed by undecim sui equales unumque Ministrum Regium by eleven of his Peers or Equals and one of the Kings Servants added unto them And it was then accompted such an honor to serve the King as our Learned Selden informs us he that that had a House with a Bell a Porters Lodge and was fit to be sent on his Princes Message or had a distinct Office in the Kings Court was accompted in those early daies as a Thainus or Nobilis a person or Honor. King Edward the Confessor whose Laws the vanquished English after the Conquest took to be so much a blessing as they hid them for preservation under the high Altar at Westminster and by the importunity of their prayers and tears procured King William the Conqueror to confirm and restore them did ordain that the Earls and Barons Et omnes qui habuerint sacham et socam Theam et Infangthiefe etiam milites suos et proprios servientes scilicet dapiferos pincernas Camerarios pistores et Cocos sub suo friburgo habeant et si cui foris facerent et Clamor vicinorum de eis assurgeret ipsi tenerent eos rectitudini in Curia sua And all those who had Courts Leete or Baron amongst their Tenants a priviledge granted by the King to have a Jurisdiction over their Tenants and to fine or Amerce such as failed to make good their Actions try and punish Theeves taken in their Mannors or Liberties to have Villains and Bond-men and a propriety in their Villains Lands or Goods and to have subject to their Mannors those that held of them by Knight-Service or were to attend them in the Warrs and their Domestique Servants as Sewers Butlers Chamberlains Bakers and Cooks should upon any wrong done to their Neighbors or Complaint made of them see right to be done unto them in their Courts and certainly he that gave them those Liberties to hear and determine
Beadels and many other Attendants upon that and all other times of Solempnity to furnish out the magnificence of the City Nor should the number of the Kings Servants which the 19. undutifull Propositions and all other the unreasonable restrictions and conditions endeavoured by the late Rebellion to be imposed upon our late blessed King and Martyr did not seek to restrain or limit be thought to be too many by the addition of some extraordinaries CHAP. XI That the King being not to be limited to a number of his Servants in Ordinary is not in so great a variety of affairs and contingencies wherein the publick may be concerned to be restrained to any certain number of such as he shall admit to be his Servants Extraordinary WHen as there are many times as great a necessity of them as of those in Ordinary either as to service or state the honouring of persons well accomplish'd for services formerly done or likely to deserve it or the retaining of them near unto the King in a dependency upon him or as it were allecti or proximi as many of the Roman Emperors Servants Extraordinary were in reversion for special uses or service when time or occasion should call for it and the Grecian and Roman Western and Eastern Emperors in imitation probably of those customs and usages of the Hebrews who were more participant of the light and emanations of the Divine Wisdom did so separate those which had once been imployed in their service from their other Subjects as they would not dismiss them where age or other impediments not their own default or offences did occasion it without some mark of honour dependency or retaining of them but did ordain an Ordo Dignitatum several degrees or respects to be given unto them with a sitque plane Sacrilegii reus qui divina praecepta neglexerit a penalty that they that offended therein should be accompted guilty of Sacriledge The first degree being 1. For those which were in Ordinary 2. For Extraordinaries or such as deserved to be honoured 3. For such as did not wait but were absent 4. For such as had those titles or honour given them by certain Letters Patents or Codicils and were therefore called Honorarii it being not unusual in those antient Registers of reason the Books or Volumes of the Civil Law to find the Curiales Courtiers or Servants of the Prince stiled Milites Palatini and the Doctors and Advocates Milites literati contradistinct unto the Milites Armati a more proper kind of Souldiers or men at Armes guarding or attending upon the person of the Prince and the Supernumerarii Proximi vacantes a title borrowed from the customs of warfare and Honorarii being as it were Extraordinaries as they are at this day in the Empire of Germany France and other Countries and places and have been allowed the same priviledges with the Princes Servants in actu or agentes in ordinary as to be free from Purveyance lodging of Strangers all Parish and Country Offices ab omnibus sordidis muneribus all imployments in the Commonwealth not becoming the honour of the service of the Prince ut lege vetustissima subjaceant Jurisdictioni Magistri Officiorum they should be under the Jurisdiction of the Lord Steward of the Houshold and not be enforced to appear in the subordinate Courts of Justice and those priviledges were retained post depositam administrationem after the quitting of their services offices or places and the reason given ne sordidis astricti muneribus decus ministerii quod militando videbantur adepti otii tempore quietis amittant lest that being afterwards put upon inferiour offices and imployments they should lose the honour they had gained in the service of their Prince From which the laudable care of our King Henry the 8th did not deviate when in the 17th year of his Reign he did by advice of his Privy Counsel ordain That such of his Servants as should be found to be impotent sickly unable or unmeet to occupy their places the King of his gracious disposition being not willing that any of his old Servants should be rejected left without some competent being unless their demerits should so require did order that some convenient entertainment should be assigned for every one of them towards their being and to be discharged from attendance in his Houshold and other able meet honest and sufficient persons put in their places which entertainments upon the death of every or any the persons discharged shall cease And for such of the Yeomen of the Guard which shall be discharged the Kings Grace is contented to make them Yeomen of the Crown and in consideration of their service that such of them as have none Offices of his Grace to the value of two pence by the day shall have the wages of six pence by the day uncheque So as the reason being the same and since by a common and customary usage in the Courts of Princes arrived to a jus gentium or Law of Nations it may from thence and the Civil Law with warrant and authority sufficient be truly affirmed that much of our method and courses of Parliaments Feudal Laws Tenures Great Offices of the Crown Grand Serjeanties Priviledges of the Kings Servants Honours and respects due to Majesty rules of Honour Precedency and Dignities as well within our Kings and Princes Courts as without our Military and Civil Orders and Government and many of the proceedings in our Courts of Justice and the Latine part and superintendency of our High Court of Chancery in granting of our Kings Rescripts and Writs remedial to prevent a failer of Justice have had their patterns and originals well approved by right reason and our Common Laws and reasonable Customs By directions of which Law of Nations and the Civil Law from whence our Common Laws have borrowed many a maxim and much of their excellency and reason our late blessed Martyr King Charles the First as many of his Royal Progenitors and Predecessors had done before him did sometimes as his occasions or affairs perswaded him admit some to be sworn his Chaplains extraordinary where the worth or budding eminency of some Divines or Students in Theology attracted his eye or intentions to preferre or take them nearer to himself to be his Chaplains in ordinary upon the next avoidance or vacancy or otherwise to preferre them in some Church Office or Dignity as in the year 1628. Doctor Miclethwaite Master of the Temple and an eminent Preacher Doctor Samuel Ward a man more then he should have been averse to the Discipline of the Church of England Peter Heylin a well deserving Divine and dutifull Son of the Church in the year 1632. the learned Robert Saunderson Batchelor of Divinity afterwards Bishop of Lincoln and a great light of the Church Ralph Brownrigge Doctor of Divinity afterwards Bishop of Exeter sworn in the year 1638. one of his Majesties Chaplains Extraordinary and in
the Martyr the drawing aside of the curtain of State and the dispute of the Kings power of committing any one for contempts against him or his Authority which every Justice of Peace and Master of a Company of Trade in London can be allowed to do by the peoples misunderstanding of the Arcana Imperii secrets of State and necessary rules of government an unhappy fancy and spirit of opposition so intoxicated many of them as they have believed it to be law and right reason that if the King will not so soon as they would have him give leave to Arrest any of his Servants the Law and his Courts of Justice are to do it that if the King should by such a way of prosecution be inconvenienced by the want of their service it is by his own default in making so ill a choice of men indebted to attend him or if they being so Arrested cannot perform their duty he is to provide such as may better do it and if the King should cause any to be committed that had Arrested any of his Servants without licence they were upon his Habâ—as Corpus to be bayled by the Judges of some of the Courts of Law at Westminster and left at liberty to go to Law with him if they could tell how or to incourage as many as would follow that evil example to misuse his Royal Prerogative which without any stretching or dilating of it to the very confines or uâ—most bounds of its regal Jurisdiction is legally warranted by the design and reason of publique good the preservation of every mans estate and property and the good at one time or in something or other of him that thinks himself the most delayed or injured in his humour or expectation for it ought to be every where reason and so acknowledged that as long as there is a King and Supreme Governour who is to take care of the universality of the people subjected born or protected under his government he is not to want the means wherewith to do it and that in order thereunto his service must needs be acknowledged to be for publique good and the exemptions and privileges belonging thereunto no less than a Salus populi the great concernment of the peoples peace protection welfare and happiness and should be the Suprema Lex that great Law in and by which the means of goveâ—nment and the Royal Prerogative was and is founded and established and that such a cause built and sustained by the rules of right reason and justice ought to be every where reason and justly entituled to that Axiom manente causa non tollitur effectus the cause alwayes remaining constant and unalterable the effects and operation naturally from thence arising are necessarily to follow and be allowed and that the cause of priviledge claimed by our Kings the cause and fountain of all exemptions and priviledges so largely given to many of their people should not in the case of their own Servants have its course or passage stopt or diverted When from that Spring and those causes which have fertilized and gladded the Vallies of our Israel have sprung and arisen those necessary priviledges which the Nobility Peers and Baronage of England have antiently enjoyed in their personal freedome from Arrests or Imprisonment of their bodies in Civil Actions Pleas or Controversies and from Common Process or any Utlaryes which might trouble them or their high Estates not only for the reason given in the 11th year of the Reign of King Henry the fourth by Hull or Hulls that in Actions of Debt or Trespass a Capias will not lye against an Earl or any of like Estate because it is to be intended that they have Assets and a great Estate in Lands whereby they may be summoned and brought to answer or as many misled by that opinion do and would yet understand it But principally CHAP. XV. That the Dukes Marquesses Count Palatines Earls Viscounts and Barons of England and the Bishops as Barons have and do enjoy their privileges and freedome from Arrests or imprisonment of their bodies in Civil and Personal Actions as Servants extraordinary and Attendants upon the Person State and Majesty of the King in order to his Government Weal Publick and Safety of him and his people and not only as Peers abstracted from other of the Kings Ministers or Servants in Ordinary IN regard of their service to their Prince and a not seldome personal attendance upon him and the honour and dignities thereunto allowed and appertaining to those Illustrious and high born Dukes Marquesses Earls Peers and Nobility who are accounted to be as extraordinary Servants not as the word Extraordinary hath been of late times misused by applying it unto those who were but quasi Servi scarcely Servants or but listed and put into the Rolls of the Kings Servants when they are neither known to him or ever were or intended to be in his actual Service and honourable Attendants of their Prince as well in times of Peace as emergencies of War and as Generals or Commanders of their Armies in times of War and therefore the Emperour Justinian in his Letter or Epistle to Narses a great General or Commander of his Army mentions Aulus Anduatius C. Tubero to be sub Narsetis Ducatu as Souldiers under the conduct of Narses making the word Ducatus which in after ages only signifyed and was applyed to a Dukedom then to denotate no more than an Army or Command only of it And the Latine word Dux since used for Duke was as Sir Henry Spelman well observeth antiently nomen officiale a name of Office or Dux delegatus vel praefectus exercitus postea feudale by reason of the Lands which were annexed to its honour by reason of that service afterwards honorarium meerly Titular or honoured with that Title in being heretofore his Chieftaine or Leader of an Army And so were the Marquesses in those antient times who were as Capitanei Generals or great Commanders in the Empire or kingdome and were as to that by reason of their honorary possessions partakers in some sort of the Royal Dignity Whereby to defend the Frontiers the Title and Military Office thereof being about the year 1008. after the Incarnation of our blessed Saviour by the Emperour Henry sirnamed Auceps of the house of Saxony instituted to defend some of the Frontiers of Germany against the Incursions of the Hungarians was so little known or respected in England about the Reign of King Richard the second as he having created Robert de Vere Earl of Oxford Marquess of Dublin in Ireland and afterwards in the 21th year of his Reign John Beaufort Earl of Somerset Marquess of Dorset which dignity being afterwards taken from him by the tempest and change of those times in the beginning of the Reign of King Henry the fourth and the Commons in Parliament in the fourth year of that Kings Reign petitioning that he might be
then Kings Mother Or the popular greatly belov'd Duke of Norfolk out of the County of Norfolk And Sir Edward Coke that great Lawyer so deservedly call'd might if he were now again in his house of clay and that Earthly Honor which his great Acquests in the Study and Practice of the Law had gained him do well to inform us that the Report of Husseys the Chief Justice who is by him mistaken and called the Attorney-General to King Henry the Seventh was any more than an Hear-say and nothing of kin to the Case put by the King whereupon they were commanded to assemble in the Exchequer Chamber whether those that had in those tossing and troublesom times been Attainted might sit in Parliament whilst their Attainders were reversing And the Case concerning the King himself whether an Attainder against himself was not void or purged by his taking upon him the Crown of England or that which in that Conference was brought in to that Report impertinently and improperly to what preceded or followed by the Reporter of that Conference was not at the most but some by discourse and not so faithfully related as to mention how farre it was approved or wherein it was gain-sayed by all or any or how many of the Judges it being altogether unlikely that if Hussey had been then the Kings Attorney-General he would have cast in amongst those Reverend Judges such an illegal and unwarrantable Hear-say of an opinion of the Lord Chief Justice Markham in the Reign of King Edward the Fourth whom that King as our Annalist Stow recordeth displaced for condemning Sir Thomas Cooke an Alderman of London for Treason when it was but Misprision said unto that King That the King cannot Arrest a man upon suspition of Treason or Felony because if he should do wrong the Party cannot have an Action against the King without a bestowing some Confutation Reason or Arguments against it which the Reporter was pleased to silence And was so weak and little to be believ'd an Opinion as the practice of all the Ages since have as well as the Times preceding disallowed and contradicted it and whether such an Opinion can be warranted by any Law or Act of Parliament And whether the King may not take any Cause or Action out of any of His Courts of Justice or Equity and give Judgment thereupon and upon what Law Reason or Ground it is not to be done For if the Answer which Sir Edward Coke made to what the King alledged That the Law was grounded upon Reason and that he and others had reason as well as others That true it was God had endued His Majesty with excellent science but His Majesty was not learned in the Laws of England and Causes which concern the Life and Inheritance or Goods of his Subjects which are not to be decided by natural Reason and Judgment of Law which Judgment requires long study and experience And when the King was therewith greatly offended and replyed That he should then be under the Law which was Treason to be said answered that Bracton saith That Rex non debet esse sub homine sed sub Deo Lege That a King ought not to be under man but God and the Law shall be compared with the Opinion of Dyâ—r Lord Chief Justice of the Court of Common-Pleas and the Judges of that Court in the Case betwixt Greâ—don and the Bishop of Lincoln and the Dean and Chapter of Worcester upon a Demurrer in a Quare Impedit in the eighteenth and nineteenth year of the Reign of Queen Elizabeth reported by Mr. Edmond Plowden as great and learned a Lawyer as that Age afforded and one whom Sir Edward Coke doth acknowledge to be no less did allow and were of opinion That the King cannot be held to be ignorant of the Law because He is the Head of the Law and ignorance of the Law cannot be allowed in the King there will be as little cause as reason to dote upon such Conclusions especially when the erronious Mis-application and evil Interpretation of that alledged out of Bracton will be obvious to any that shall examine the very place cited that his meaning was that where he said that the King was sub Deo Lege under God and the Law it was that he was onely non uti potentia sed judicio ratione And in other places of his Book speaking who primo principaliter possit debeat judicare who first and principally shall and may judge saith Et sciendum quod ipse Rex non alius si solus ad hoc sufficere possit cum ad hoc per virtutem Sacramenti teneatur astrictus And it is to be understood that the King Himself and none other if he alone can be able is to do it seeing He is thereunto obliged by His Oath Ea vero quae Jurisdicâ—ionis sunt Pacis ea quae sunt Justiciae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona seperari poterint cum faciant ipsam Coronam for that which belongeth to his Jurisdiction and that which belongeth to Justice and the Peace of the Kingdom doth belong to none but the Crown and Dignity of the King nor can be separated from the Crown when it makes the Crown so as those who should acknowledge the strength and clearness of a Confutation in that which hath been already and may be said against those Doctrines of Sir Edward Coke may do well to give no entertainment unto those his Opinions which nulla ratione nulla authoritate vel ullo solido fundamento by no reason authority or foundation can be maintained but to endeavor rather to satisfie the world and men of law and reason whether a Soveraign Prince who as Bracton saith habet omnia Jura sua in manu suâ— quae pertinent ad Regni gubernaculum habet etiam Justiciam Judiciam quae sunt Jurisdictiones ut ex Jurisdictione sua sicut Dei Minister Vicarius hath all the Rights in his hand which appertaineth to the Government of the Kingdom which are Jurisdictions and as His Jurisdiction belongeth unto Him as He is Gods Vicar and Minister is in case of Suspition of Treason or Felony where His ever-waking Intelligence and careful Circumspections to keep Himself and People in safety shall give Him an Alarm of some Sedition Rebellion or Insurrection and put on His Care and Diligence to a timely Endeavor to crush or spoil some Cockatrice Eggs busily hatching to send to His Lord Chief Justice of the Court of Kings Bench or in his absence out of the Term some Justice of Peace for a Warrant to Arrest or Apprehend the party offending or suspected which our Laws and reasonable Customs of England did never yet see or approve and when such offenders are to be seized as secretly as suddenly Or what Law History or Record did ever make mention of so unusual undecent
H. 6. tit quarâ— impedit t Mich. 2 E. 4.9 u w Trin. 11 E. 4.12 x Hill 21 E. 4.26 y Hill 21 E. 4 35. z Pasch. 21 E. 4 6. a 〈…〉 5. P. M. b Dyer Trin. 4 5 P. M. c Dyer ibidem d 11 H. 4.15 Cuiacius ad lib. 10 12. Justiniani Commentar Gutherius de offic domus Augustae lib. 2. cap. 19. The Dukes e Spelmans Glossaâ— in voce Dux f Selden tit honor cap. 4. §. 2. g Scholiâ— Jacobi Spâ—egel in lib. 2. Ligurini Guntheri Poetae 301 302. Marquesses h Hornius in orbe Politis 3 part 81. i Selden tit honor cap. 1. §. 47. Rot. Parl. 4 H 4. m. â—8 Earls k Selden 2. part tit honor cap. 3. §. 5. cap. 5. §. 3. l Spelman Glossâ—r in Diatribâ—â—â— Comitâ—bus m Vizzâ—â—ius de 〈◊〉 Princiâ—um l â—â— 24. n 〈◊〉 in Glossâ—r Salis vâ—â—um 〈◊〉 voâ—e Centenarius o Cluverius de Germ lib. 1. cap. 15. p Choppinus de domanio Franciae lib. 1.44 q Alexander ab Alexand. Genial dierum lib. 9. cap. 9. r Gutherius del officiis domus Augustae lib. 1. cap. 17. lib. 2 cap. 21. s Idem lib. 2. cap. 19. t Charles Loyseau traite des Seigneuries cap. 5.27.102 u Besoldus in dissertatione de Comitibus Imperii 99. w L'Oysean traite des Seigneuries ibidem x Pancirollus in notitia utriusque Imperii Spelmanâ— Glossar in voce Comitis Selden tit honor 2. part cap. 1. §. 8. y Cuiacius Commentar ad lib. 12. Cod. tit 5. Justiniani Chiffletius ad vindicias Hispanicas lumina prerogat luminâ— 3 §. 5. z Huberti Leodii Commentar de Palatinorum origine a Egnihartus de vita gest Caroli Magni b Pasquier des Recherches de la France lib. 2. cap. 12. c Freherus originum Palatinorum comment cap. 1. d Paulus de Fageâ— in vita Petri de Marca Padriensis Archiepiscopi e Hinckmarus cap. 14. 15. Epist. 4. Choppinus de domanio Franciae lib. 1.45 f Spelmans consil 347. Spelmans coâ—sil â—47 g Seldens titles of honour cap. 5. § 15. Spelman Glossâ—r in voce Comitis h Jer. 36. â—ers 12. i Esther cap. 1. vers 3 4 13 14. k Besoldus in dissertatione de Comitibus Rom. Imperii Selden in Jano Anglorum ejusdem tit hon 2. part cap. 5 § 3 l Selden 2. part tit hon 651 lib Rub. in Scacc. f. 26. inter lâ—ges H. â— m Spelman Glossar in Catalog capâ—tal Justitiar Angl. n Selden tit hon 2. part §. 8. Bracton lib. 1. cap 8. o Hoveden Selden 2. part tit hon cap. 5 § 13. p Placita de Jur. assis coram Solomone de Roffe al. Justic. domini Regis Itin. apud Norwicum in Com. Norff anno 14. Regis Edw. 2. rot 2. q Selden 2. part tit hon cap. 5. §. 10. r Rot. Parl. Johan part 1. m. 4. Rot. Parl. 2 H. 3. m. 3. Rot. Claus Fines 5 E. 3. s Embassades de Marescal de Bassompierre t Seldeâ—â— 2. pâ—rt tit â—on cap. 5. §. 10. u Spelman â—lossâ—r in vocibus Constabular Marescal 14â— 147 399.4â—1.402.403 46 E. 3. Escâ—â—t w Dâ—gdales 1. part Monasticon Anglicanum x Rot. Parl. 33 H. 6. y Rot Claâ—s 3 E. â— 10 z Marquardus Freherus de Orig Palatin de Aurea Bulla ca. 25. ex Archivit Illustrissimi Principis Electoris Palatini Selden tit hon 2. part cap. 1. §. 54. a Actus Electionis Coronationis Mathiae Imperatoris an 1612. Hornii orbis politic in 8 part 2.23 Viscounts b Selden tit hon 2. part cap. 3. § 19. 20. 1 Part Dugdales Monasticon Anglican 380. ibid. Carta H. 3.382 Abbati Monachis de Salopesbury c Carta Gulielmi Rufi in Dugdales Monasticon Rot. Pat. 18 H. 6. part 2. m. 21. d Spelmans Glossâ—r in Catalog Capital Justic. Angl. 340. Barons Temporal e Spelman Glossar in voce Baro. f Bracton lib. 1. ca. 8. Selden 2. part tit hon cap. 5. § 15. g Spelman Glossar in voce Baro. h Relation de la conspiration de valstein i Joh. Gower confessio Amantis Selden tit hon 2. part ca. 5. § 16. k Dugdales 1. part Monastic Anglic 384. l Mich. 18 E. 1. in Baâ—co Regis Norff. Rot. 46. Mich. 33 34 Et coram Rege Rot. 75. m Selden tit hon 2. part cap. ◠§ 2. 4. n Spelman Glossar in voce Baro. o Selden tit hon 689.2 part cap. 5. Sect. 16. p Spelman Glossar in voce Baro. q Scholia Jacobi Spiegel in lib. 2. Ligurini Guntheri 301 302. r Spelman Glossar in voce Baro in vocibus Pares Parliament s 31 H. 8. cap. 10. t Spelman Glossar in voce Baro. Barons Spiritual u Selden tit honor 795. paâ—t 2. cap. 5. Sect. â—0 w Traitte du politicque de France par Monâ—sieur P. H. Marquis de C. in fine x Spelman Glossar in voce Apocrisiarius in voce Comes Palatinus y Mat. Parker antiquitâ—tes Ecclesâ—◠〈…〉 28. z History of the life of Will Laâ—d Arch-bishâ—p of Canterbury 2â—9 a Ro. cart 1 Johannis in 29. b Cokes 2. part Institutes 625. c Lord Herberts History of King Henry the 8th 376. d Statutes or Orders made at Eltham Anno 17. H. 8. 33 H. 8 caâ— 10. f 〈…〉 in 4. 〈…〉 ad lib. 12 God Justinian 1 〈◊〉 11. Seâ—â—ion 1. p. tit 〈◊〉 ca. 3. Sect. â— in 〈◊〉 g 〈…〉 Imperii 〈…〉 14.84 h 〈…〉 Cokes â— Rep i k Statute of 〈…〉 or 〈…〉 â—â— H. 3. c. 10. l Flet lib. 6. ca. 9. m Eliz. c. 1. n 1 Eâ—iz c. 2. o Memoires du duc du Guise p 21. H. 8. ca 13. q Coke 3. part of the Institutes ca 56. tit approver r 9 H. 3 ca. 11. Hil. 20. E. 1 coram Rege Wallia Rot. 37. s 14. Eliz. Gromwell's case Dyer 316. t Magna Charta 29. 20 H 6 c. 9. 10 E. 4 6. 20 H. 6. c. 9. u Lambard Eirenarch 81. w 27 E. 3. 27 H. 8.27 x Crompton Jurisdiction of Courts 1 H. 4.1 Stamford 152. y 21 E. 3 39. 43 E. 3.33 8 R. 2. 7 H. 4. 11 H. 4.15 1 H. 5.14 14 H. 6.2 22 H. 6.226 27 H. 8.27 Countee de Salops case Cokes 9. Report 49. z Countess of Rutlands case Cokes 6 Reports 52. 53. 3. H. 6 48. a Vernons considerations for regulating of the court of Exchequer 18. b Nevills case Cokes 7. Rep. 34. Dier 20 Eliz 360 Coke 2 part Instit. cap 2. c 13 E. 3. Dier 107 Crompton Jurisdiction des courts d Selden tit honor 704. 2 part ca. 5. § 20. Coke comment super Littleton 58. e Dugdale 1 part Monasticon Anglic f Seldeni dissertatio ad Fletam ca. 4. § 3. ca. 5. § 1. 3. h Selden tit hâ—nor 573. part 2. ca. 4. Sect. 4 i Register of Writs 100. b. k Selden 2 part tit honor