reddend erronice et sine warranto processerunt Upon view and due consideration of which Record and Writs aforesaid it appeared to the Court that the aforesaid Justices had by colour of the Writ of Procedendo which was of a later Date than the Writ of Venire Facias to cause the Record and Proceedings to be brought before the King and that by that Writ of Venire Facias the Power of Proceeding was taken from the aforesaid Justices nor in the said Writ of Procedendo was any mention made of the Bishops aforesaid Allegation nor of the Kings former Command that after the taking of the Assise they should not without Advising with the King Proceed to Judgement and that by such a giving of Judgement they had Proceeded Erroniously and without Warrant whereupon and other the Errors alledged the Judgement was Reversed and the Seisin of the Land adjudged to the Bishop In the third year of the Reign of King Edward the third the Bishop of Winchester being Attached to Answer the King Quare decessit a Parlemento tent ' apud novam Sarum absque licencia Regis contra inhibitionem Regis et in Regis contemptum Wherefore he departed from the Parliament Holden at New Salsbury without Licence of the King contrary to the Kings Inhibition and in Contempt of the King Episcopus dicit quod ipse est unus de Paribus Regni et Praelatis Regni et eis inest venire ad Parlementum Domini Regis summonit Et pro voluntate Domini Regis cum ipse placuerit Et dicit quod siquis eorum deliquerit erga Dominum Regem in parte aliqua in aliquo Parlemento debet corrigi emendari non alibi in minor Cur ' quam in Parlemento per quod non intendit quod Dominus Rex velit in Cur ' hic de hujusmodi transgressione contempt ' fact in Parlemento responderi c. To which the Bishop pleaded that he was one of the Peers and Prelates of the Kingdom and that they are to come to the Parliament of the King when they are summoned when he pleaseth and that if any of them should offend the King in any thing the King ought to correct or call them to accompt for it in Parliament and not elsewhere in any lesser Court. Wherefore he hoped that the King will for any such offence or contempt cause him to answer in Parliament To which the King's Attorney replyed Quod licet Regi de hujusmodi transgressione sectam facere vel delinquentem punire in quacunque Curia sibi placuerit c. Et Episcopus e contra ut prius ideo datus est dies That by Law the King may prosecute against a Delinquent in whatsoever Court he pleaseth which the Bishop denied as aforesaid and therefore further day was given c. King Edward the second having by his Letters Patents granted to Maurice Brownesword Officium Custod Vlnagij in Anglia postea ipsum inde amovit et conâ—ulit dictum Officium Nicholao Sherlock unde Mauricius per petitionem Regi porrectam in Bancum Regis missam petit quod dictum Officium ei restituatur The Office of the Aulnage in England and afterwards displaced him and granted the said Office to Nicholas Sherlock and Maurice Brownsword having thereupon exhibited his Petition to the King which prayed that the said Office might be restored unto him and the King having sent it to the Judges King Edward the third his Son notwithstanding in the fifth year of his raign misit breve suum Justic quod non vult ea irritari quae Pater suus in hoc fecit praecepit quod supersedeant quousque aliud inde ordinaverit c. sent his Writ to the Justices declaring that he would not have that to be made void which his Father had done and commanded them to proceed no farther therein untill his further order In a Judgment given in the Court of Kings Bench in Easter Term in the tenth year of the Raign of the aforesaid King upon a Taxation or Assesment upon the County of Hertford for the wages of Hoblers and Footmen It was declared Quod nihil renovandum seu emendand quod factum fuit per Regem that nothing was to be revoked or amended which was done by the King and in the same Term and year Super prolationem Recordorum Rotulorum Curiae al. Dominus Rex misit breve suum Justic mandando quod nihil agerent in prejudicium sâ—u ex hereditationem Domini Regis sed quod supersederent in negotio praedicto nihil inde faciendo inconsulto Rege upon producing of the Records and Rolls of the Court the King sent his Writ to the Justices commanding them that they should do nothing in his prejudice or disherison and that they should stay and proceed no further without advising with him In Easter Term in the forty sixth year of the Raign of King Edward the third Thomas Bishop of Durham was attached ad respondend tam Domino Regi quam Gulielmo sil Henr ' de Aslokey quare iâ— placito erroris in utlagaria ad sectam tam Katerine quae fuit Vxor Willi ' de Kilkenny quam ad â—ectam Dâ—iâ— Ept ' infra libertatem Episcopat ' Dunelm non misit Recordum ex Mandato Regis in Bancum Regis to answer the King as William the Son of Henry of Aslokey wherefore upon a Writ of Error brought to reverse an outlawry as well at the Suit of Katherine which was the Wife of William of Kilkenny as at the Suit of the Bishop within the liberty of the Bishoprick of Durham he had not sent the Records as the King had commanded into the Court of Kings Bench and upon a second Writ commanding him to do it or to shew cause which was delivered at his Castle of Auckland and a third Writ of the like Tenor delivered to the Bishop himself at Waltham Cross spretis mandatis record processus non misit nec causam significavit quare id facere noluit but disobeying the Kings commands had neither sent the Records and Process nor shewed any cause why he did it not Episcopus dicit quod nulla brevia ei liberavit apud Dunelm ' quod ad illud apud Waltham retornavit quod ipse est Comes Palatinus Dominus regalis cujusdam terrae vocat le Bishoprick de Durham habet omnia Jura regalia quae ad Comitem Palatinum Dominium regalem pertinent per se Justic ' Ministros suos ibidem excercenda ac Justic ' suos proprios viz. Coronatorem Cancellar Cancellariam brevia sua propria ibidâ— de Cancellaria sua emanantia quod ministri Domini Regis ad aliqua officia sua exercenda ibidem in aliquo ad omnia Com' placita se non intromittant realia et personalia quae ad comitem Palatinum pertinent infra terram praed ' quod habet Justic.
super hoc molestari seu inquietari non debeant nosque ac progenitores nostri quondam Reges Angliae hujusmodi libertate et privilegio pro Clericis nostris a tempore quo non extat memoria semper hactenus usi sumus vobis mandamus quod dilectum Clericum nostrum A parsonam Ecclesiae de B. vestrae dioces qui in Caencellaria nostra nostris jugiter intendit obsequiis ad personalem residentiam in beneficio suo predicto faciendam dum in obsequiis nostris Immoretur nullatenus compellatis et sequestrum a penalty upon non residents too much disused or neglected si quod in fructibus aut aliis bonis Ecclesiae suae predictae ea occasione per vos aut vestrum fuerit appositum sine dilatione relaxari faciatis whereas our Clerks ought not to be compelled to a personal residence in their benifices nor molested therein whilst they are implyed in our Affairs or attendance and that we and our progenitors Kings of England from the time to which the memory of man doth not extend have alwaies hitherto used and enjoyed that liberty and priviledge we command you that you do no waies enforce A our well beloved Clark Parson of the Church of B. in your Diocess to a personal residence therein whilst he is imployed in our affairs in our Chancery And that if by reason thereof you have sequestred any of the profits or goods of his said Church you doe without delay discharge or release the same In the 33th and 34th year of the aforesaid Kings Raign William de Brewse a great and powerful Baron of England being indicted in the Kings Bench for using contumelious and reproachful words to Roger de Hengham one of the Judges who are but as the Kings Ministers or special Servants in his dispensation and Administration of Justice for giving Judgment against him and he pleading to the said Indictment quòd non intellexit in hoc Domino Regi aut Curiae suae se aliquem Contemptum fecisse that he did not understand that it was any contempt or Jnjury done by him to the King or Court sed si videatur Domino Regi et ejus Consilio quòd ipse in hoc in aliquo deliquit ipse se inde totaliter submittit voluntati Domini Regis c. But if it should appear that he had therein offended he did wholly submit himself to the Kings good pleasure quibus praemissâ—s postea coram domino Rege ejus consilio visis et diligenter examinatis et plenarie intellectis all which matters and premises being afterwards considered diligently examined and fully understood Quia manifestè patet tam pro hoc quòd praefatus Gulielmus post redditionem Judicii praedicti contemptibiliter Barram ascendit prefatum Rogerum Justic. Domini Regis de Judicio per ipsum pronunciat reprehendit et postea eidem Roger. eunti c. Verbis acerbioribus et grossioribus insultavit for that it plainly appeared that the said William after the said Judgment given by the said Roger contemptuously came to the Bar and did reprehend the said Justice for the Judgment aforesaid pronounced against him and afterwards followed the said Roger as he was going from the said Court and reviled him with grosse and bitter words Quae expressè redundabant tam in dedecus praedicti Justic. quám in Contempt Cur. Dom. Regis et inobedientiam Quae quidem viz. Contemptus et inobedientia tam ministris ipsius Domini Regis quám sibi ipsi aut Cur. suae facta ipsi Regi valde sunt odiosa which did expresly redound as well to the reproach of the said Judge as a disobedience to the King and a Contempt of his Court which contempt and disobedience as well to the Ministers of the King as to himself or his Court are greatly displeasing Et hoc expresse apparuit Cum idem Dominus Rex filium suum primogenitum et Charissimum Edwardum Principem Walliae pro eo quòd quaedam verba grossa et acerba cuidam ministro suo dixerat ab hospitio suo ferè per dimidium Anni amovit nec ipsum filium suum in conspectu suo venire permisit quousquè dicto ministro de predictâ transgressione satisfecerat And this saith the Record expresly appeared when the King did for almost half a year banish from his Court and presence his dearly beloved Son Edward Prince of Wales for that he had given some foul words to one of his Ministers or Servants that attended him which as Sir Edward Coke saith was the Treasurer of England who was so much misused by the instigation of Pierce Gaveston and would not suffer him to come in his sight untill he had given his said servant or minister satisfaction Et quia sicut honor et reverentia quae ministris ipsius Regis ratione Officii sui fiant ipsi Regi attribuuntur sic dedecus ministris suis factum eidem domino Regi infertur And in regard that any honor or reverence done to the Kings Ministers or Servants are attributed or taken as done to the King so any reproach done unto his Servants or Ministers are such as done to the King himself Et videatur quòd praedictus Gulielmus in praemissis tam ipsi Domino Regi et Curiae suae quà m praefat Justic. suo contempt fecit Et dedecus manifestum And that it was evident that the said William had behaved himself contemptuously as well towards the King and his said Court as to the said Judge Concordatum est et consideratum per ipsum Dominum Regem et consilium suum it was by the King and his Councel which by the Tenour and Title of the Records of the Court of Kings Bench in the Reigns of King Edward the first Edward the second and Edward the third Videlicet Placita coram Rege Consilio suo Were the Judges of the Kings Bench and are not as some have mistaken it to be at all understood to signifie the Parliament the Kings Greater Councel and Court ordained and ordered that the said William de Brewse should without his Sword goe bareheaded a Banco ipsius Domini Regis ubi placita tenentur in Aulà Westmonaster per medium Aulae praedictae cum Curia plena fuerit usque ad Scaccarium et ibidem veniam petat a prefat Rogero et gratum sibi faciat de dedecore et transgressione sibi fact Et postea pro contemptu facto Domino Regi et Curiae suae Committatur Turri ibid. moraturus ad voluntatem Domini Regis from the Kings Bench in Westminster Hall through the middle of the Hall aforesaid when the Court was full unto the Exchequer and there aske pardon of the said Roger of the wrong and injury done unto him and after for the contempt done to the King and his Court be committed to the Tower there to remain during the Kings pleasure And about that time limited the vast and heretofore more
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
duce venientem aut ad illum ambulantem in Itinere inquietare quamvis culpabilis sit no man ought to be molested in his journey or going to or from the Dukes Court although there might be any Action or Cause to trouble him By the Laws of the Lombards or Longobards si quis ex Baronibus nostris ad nos venire voluerit securus veniat illaesus ad suos revertatur nullus de Adversariis illi aliquam Injuriam in itinere aut molestiam facere praesumat If any of our Barons have an intent to come unto us he is safely to go and come and none of his adversaries are to do him in his Journey any wrong or Injury By some Laws made in the Raigns of the Emperors Charlemaigne and Lewis his Son nullus ad palatium vel in hostem pergens vel de Palatio vel de hoste rediens tributum quod transituras vocant solvere Cogatur That no man coming to his Palace or going against the Enemy or returning should be compelled to pay the Tribute called Passage-money The Tractatoria Evectiones allowed by the Western and Eastern Emperors that Stables and Provisions of Horse-meat and mans meat should be provided sumptu publico at the Peoples charge for such as Ride post Travailed or were sent upon the Emperors Affairs may inform us how great the difference is and ought to be betwixt the Kings Affairs and those of the Common People The Laws of the Wisigoths a People not then much acquainted with Civilities compiled about the year or Aera of our Lord 504 may teach us the value of Princes cares of their own and the Publick Affairs managed by their Servants or whosoever shall be imployed therein Quod antea ordinare oportuit negotia Principum postea populorum when they declared that the Affairs or concerment of the Prince ought to take place of those of the People Quia si salutare Caput extiterit rationem colligit qualiter Curare cetera membra possit because if it be well with the head it will be the better able to take care of the rest of the Members Et ordinanda primo negotia Principum tutanda salus defendenda vita sicquè in statu negotiis plebium ordinatio dirigenda ut eum salus componens prospicitur Regum fida valentibus teneatur salvatia populorum That in the first place the business of the Prince the safety of his life and the defence of his Person are to be heeded and the Affairs of the People so Ordered as whilst a sufficient provision is made for the safety of the Prince the good of the People may be established Of which our English Laws have such a regard as they would some few Cases only excepted dispence with any man 's not appearing or coming to Justice If he though not the Kings servant in Ordinary sent by His Attourney the Kings Writ of Protection signifying that he was sent or Imployed in the Kings Service That if any Archbishop Bishop Earl or Baron do come to the King by His Commandment passing by any of His Forrests he might notwithstanding the great severity of the Forrest Laws against such as did Steal or Kill any of the Kings Deer or Venison take or kill one or two in their going and return The Register of Writs doth bear Record that where one of the Kings Servants hath been returned of a Jury or Summoned probably to be a witness or upon some other occasion to attend some Inquisition or Inquest to be made in any other place then the Kings House or before any other Judges or Magistrates a Writ hath been sent under the Great Seal of England to excuse his absence because he was the same day to attend the Steward and Marshal of the Kings House about some affairs of the Houshold which may shew that the King had a mind aswel as reason not to permit the necessary attendance of His own Servants in or upon His Houshold occasions to be omitted to wait upon strangers or other mens busines in Courts or matters of Justice And the Law doth so much prefer the Kings business above the Common Peoples as that all Honor and Reverence is to be given to the Kings Privy Council For that as Sir Edward Coke saith they are partes Corporis Regis incorporated as it were with him are profitable Instruments of the State bear part of his cares and which is no more then what the Civil Law allows them when it terms them Administri Adjutores Adsessores helpers and Adsessors qui arcanis Principis interesse meruerunt in Contubernium Imperatoriae Majestatis adsciti and which deserve an Interess in the Princes secrets and affairs of State and are as Spartianus saith admitted as it were into the Society of Royal Majesty Where the body of a Debtor before the Statute of 25 of King Edward the third have by some been believed not to have been liable to Execution for debt at the Suit of a Common Person yet it was adjuged to otherwise in the Kings Case for that Thesaurus Regis est pacis vinculum Bellorum nervi for otherwise the King might want His Money or Treasure which is the Bond of Peace and Sinews of War Protections under the Great Seal of England have not only been granted by our Kings but allowed by their Judges to secure some Merchants Strangers from Arrests or Trouble in Corporibus rebus bonis in their Persons goods or Estates until the Debts and Money which they did owe the King should be satisfied and to suspend any Judgements or Executions had against them for other mens Debts until the King should be satisfied the monys due unto him And in the mean time taking them and their estate in their Royal Protection did prohibit any Process against them to be made in any of their Courts of Justice or that they should be Arrested or distrained for any debts or accompts the Kings debts not being satisfied And although by an Act of Parliament or Statute made in the 25 th year of the Raign of King Edward the third cap. 19. Their other Creditors might notwithstanding bring their Actions and Prosecute thereupon yet they were not by that Statute to have Execution upon any Judgements gained for their Debts unless they would undertake to pay the Debts due unto the King and then he should be authorized to sue for recover and take the Kings Debt and have Execution also for his own Debt the Preamble of that Statute mentioning that during such Protection no man had used or durst to implead such Debtors In the 8 th year of the Raign of King Henry the 6 th it was agreed in Parliament that all matters that touch the King should be preferred before all other as well in Parliament as in Council And no longer ago then in the 34 th and 35 th years of the Raign of King
Servants and Followers so much follow the King and his Court and were kept in the Kings House or palace as in old time King Solomon in his Stately Porch of Judgment built in his House did judge and hear Causes and as the Kings of France did long ago in their Palaces and as long before the Romans had their Senate or Parliament House their Forum or place for their Courts of Justice near adjoyning to their Kings Palaces As our Bracton in the latter end of the Raign of King Henry the third called the Court of King's Bench as Sir Edward Coke saith Aulam Regiam the Kings Hall because the Judges of that Court did sit in the Kings Hall and the Placita Aulae Actions or Pleas of the Kings House or Hall were determined before the Steward of the Kings House And that King who began his Raign in the year 1216 labouring under great difficulties the power of many of his unruly Barons and very great necessities as well of mony as friends had notwithstanding the many Diminutions endeavoured of his Prerogative and regality no assault or incursions upon the Rights and Legal Priviledges of his Domestiques or House-hold Servants but had allowed him that Reverence and respect which by the Civil Law that universal Guide or Director of Reason and Justice and next to the Laws Eternal and its Deputy or Law of nature written in the heart of Mankind the Mother Nurse or Parent of a great part of that which is called our Common Law is and ought to be due and payable to the persons and Courts of Princes but enjoyed so much of it as Bracton who was a Learned Lawyer and afterwards a Judge and as some have believed a Chief Justice in the latter end of that Kings Raign or the beginning of the Raign of King Edward the first his Son in his Book De legibus et Consuetudinibus Angliae of the Laws and Customs of England whilst he disputes where a Defendant excuseth his not appearing to an Action when he is in Servitio Regis in the Kings Service and whether being summoned before he was in the Kings Service and might send or make his Attorney should be excused is willing to conclude in the negative yet forbeares to do it with a sed ita esset but so it would be si quis posset factum Domini Regis Judicare et in omnibus istis casibus magis erit spectanda voluntas Domini Regis quam jus strictum cum servitium Domini Regis nulli debeat esse damnosum et sicut non debet esse tenenti when it seems the Action spoken of concerned plea of Land Damnosum ita non debet esse Petenti injuriosum if any were to be Judg of the Kings Actions and that in all those Cases the will of the King was more to be regarded than the strictness of the Law when as the service of the King ought not to be grievous unto any And as it ought not to be a grievance unto the Tenant so ought not the Plaintiffe to take it to be a wrong done unto him And was of opinion that the solemnity and course of process may be sometimes shortned propter reverentiam personae vel privilegium contra quem illata fuit injuria vel contra nobiles personas ut si Injuriatum sit Domino regi vel reginae vel eorum liberis fratribus sororibus c. For reverence or respect to the person or in regard of the priviledge due unto him unto whom the wrong is done as if it were done to noble Persons or some wrong done unto the King the Queen or their Children Brothers Sisters c. And when he would not allow the priviledge or Essoine of being in the Kings Service unto a Sheriffe or Constable who were the Kings Officers during the time of their imployments was content to do it ubi aligua causa emergat necessaria ex inopinato ubi praesentia talis debet esse necessaria sicut iter Justitiariorum vel incursus hostium vel hujusmodi quae guidem Causae sufficientes sunt ad excusationem de servitio domini regis where there was any emergent and expected Cause where their presence was necessary as to attend in the Iter or Circuit of the Judges or upon an Invasion of Enemies or the like which were causes sufficient of excuse by reason of the Kings Service dum tamen ad quemlibet diem datum per Essoniatorem de servitio Domini regis habeat Essoniatus warrantum suum per breve Domini Regis so as at the day of Essoin that he or they were in the Kings Service the Kings writ or protection be produced to prove it Item excusatur quis si implacitatus fuerit in Curia Domini Regis vel vocatus ad Curiam Regis ob aliquam Causam in aliquibus Curiis inferioribus likewise any one impleaded in the Kings Court or called or summoned to the Kings Court upon any Cause or occasion shall be excused in inferior Courts Sed quid but what saith that Learned Judge dicendum erit de Curia Christianitatis cum magis obediendum sit Deo quam hominibus Hoc dico quod ad hunc differendum erit et quod dominus Rex warrantizare poterit ob reverentiam quae principi debetur shall be said if the Cause be depending in the Court Christian when God is more to be obeyed than men I say that in such a Case it is to be left unto God and the King may warrant his so doing in respect of the Reverence which is due to the Prince Being not much different from the Cares which some Forraign Princes did about that time hold fit to be taken of their Domestique Honors and Servants For by the Laws of the Sicilians and Neapolitans made or confirmed by Frederick the Emperor about the year 1221 the Magister Justiciarius magnae Curiae Chief Justice of the King's House or Court had the Cognizance or hearing of Causes de questionibus nostrorum Curialium qui immediatè nobis assistunt de speciali conscientia nostra in curia commorantium qui de Curia nostra sine speciali mandato nostro non possunt recedere or questions concerning any of the Kings Courts who do immediately attend us and by our privity are residing in Court and cannot depart without our special Licence Et observent diligentissime Judices ut in occasione injuriarum Curialium personarum dignitatem considerent et juxta personarum qualitatem eorum quibus fuerit facta injuria ipsis autem facta injuria non ipsis duntaxat sed etiam ad Regiae dignitatis spectat offensam The Judges are to take an especial care that in all accusations concerning any of the Kings Servants or Courtiers they take into consideration their worth dignity and quality seeing that a wrong done unto them is an injury or wrong done unto the Dignity of the Prince And when our
of his Reign for the punishment of such as committed Murder or Man-slaughter in the Kings Court or did strike any man there whereby Bloodshed ensued the Trial of such Offenders was not thought fit to be within the Cognisance or Jurisdiction of any of the Courts of Westminster-hall or of any Court inferior unto them but ordained to be by a Jury of 12 of the Yeomen Officers of the Kings Houshold before the Lord Steward or in his absence before the Treasurer and Comptroller of the Kings Houshold And the Parliament in the first year of the Reign of Queen Mary repealing the aforesaid Act of the 32 year of the Reign of King Henry the Eighth did touching the Great Master of the Kings House notwithstanding understand it to be reasonable that the Name Office and Authority of the Lord Steward should be again established And so little the Priviledge of the Kings Servants in Ordinary seemed to be a Grievance or illegal to be first complained of to the Lord Chamberlain of the Kings Houshold which Honourable Office and Place about the King appears to have been before that Great Office of Chamberlain of England by the mention of Hugoline Chamberlain to King Edward the Confessor and the Subscription of Ralph Fitz Stephen as a Witness to a Charter of King Henry the Second granted unto the Abby of Shirburn before they were to be subjected to Arrests or Imprisonments for Debt and other Personal Actions before Execution or Judgment had against them upon their appearance and not claiming or pleading their Priviledge for then or in such a case they have not sometimes been priviledged although the cause and reason of their Priviledge was as much after Judgement and Execution as before which a submission to the Jurisdiction of another Court and not claiming their Priviledge should not prejudice or take away no more than it doth in the Case of Members of the House of Commons in Parliament and their Servants who by their Priviledge of Parliament are not to be disturbed with Executions or any manner of Process before and after Judgment as Queen Mary did in a Case depending in the Court of Common Pleas betwixt Huggard Plaintiff and Sir Thomas Knivet Defendant direct her Writ to the Justices of that Court which was but as one of the old and legal Writs of Protection or something more especial certifying them That the said Sir Thomas Knivet was by her command in her Service beyond the Seas and had been Essoined and therefore commanded them That at the time appointed by the said Essoin and day given for his appearance he should not have any default entred against him or be in any thing prejudiced which the Judges were so far from disallowing as having before searched and finding but few and that before-mentioned Privy Seal in the 35 year of the Reign of King Henry the Sixth in the Case of the Kings Yeoman of the Buttery being held by them to be insufficient but declared not whether in substance or Form howsoever there may be some probability that it was allowed by the entring of it upon Record they did as the Lord Chief Justice Dier hath reported it advise and assist in the penning and framing of the Writ for Sir Thomas Knivet whereby to make it the more legal Queen Elizabeth who was as tender of her Peoples Liberties as of her own yet was upon some occasion heard to say That he that abused her Porter at the Gate of her House or Palace abused her did cause a Messenger of her Chamber to be sent unto a Defendant in the Court of Requests commanding him in her Name not to vex sue or trouble the Complainant but suffer him to come and go freely unto that Court until such time as other Order be by the Council of the said Court taken therein And in the second year of her Reign an Injunction was awarded to the Defendant commanding him to permit the Complainant to follow his Suit in that Court without Arrest upon pain of one hundred pounds In the same year Sir Nicholas Bacon that great and well-experienced Lawyer and Statesman Lord Keeper of the Great Seal of England and a man highly and deservedly valued both of Prince and People did in the Case between Philip Manwaring Complainant Henry Smallwood and others Defendants so well understand the aforesaid Priviledges of the Kings Servants to be just and legal as upon a Bill exhibited in Chancery by the Plaintiff to stay a Suit in the Marches of Wales he ordered That if the Complainant should not by a day limited bring a Certificate from the Officets of the Queens House or otherwise whereby the Court might credibly understand that his Attendance in the Queens Service was necessary that Cause should be determined in the Marches of Wales In the eighth year of her Reign Thomas Thurland Clerk of the Queens Closet being Plaintiff in the Court of Requests against William Whiteacres and Ralf Dey Defendants an Order was made That whereas the Complainant was committed to the Fleet by the Justices of the Court of Common Pleas upon an Execution of 600 l. the Debt being only 300 l. it hath been given this Curt to understand by divers of the Queens Highness most Honourable Privy Council that Her Majesties pleasure is to have and use the present and speedy Travel of the said Thomas Thurland in and about divers of Her Highness weighty affairs in sundry places of England and Wales for and about the Mineral Causes there to the very likely Commodity and benefit of Her Majesty and all her Subjects It is therefore Ordered and Decreed by Her Majesties Council of this Court that the said Thomas Thurland shall and may with his Keeper appointed by the Warden of the Fleet Travel into any part of the said Realm about the affairs aforesaid without the disturbance Let or Interruption of the said Defendants And to that purpose an Injunction is granted against the said Defendants their Attornies and Solicitors upon pain of one Thousand pounds and commanded that neither they nor any of them shall vex sue trouble molest or implead the said Complainant or Richard Tirrel Esq Warden of the Fleet or any other person whatsoever for the Travelling or departing of the said Thomas Thurland from the said Prison of the Fleete with his Keeper appointed as aforesaid from the day of the making of this Decree until the feast of all Saints next ensuing if the said Complainant so long shall have cause to attend about the said affairs And many Cases might be instanced where that great Supporter of Monarchy Regality and Honour in Her best of Governments would not suffer the Just Priviledges of Her Court and Servants to be violated but would be sure severely to punish the Contradictors and Infringers of them About the eighteenth year of her Raign the Earl of Leicester Master of the Horse unto that Excellent Queen and great preserver of Her Peoples
be Attached Et hinc est quòd vulgaritèr dicitur quòd servientes Regis sunt Pares comitibus and from hence it is saith Fleta that it is Commonly said that the Kings Servants are in that Respect Peers of the Earls and are upon Actions or Complaints of Debt or other personal Actions in the awarding of process in the Court appropriate to the Kings House or Palace to enjoy the like Summons or respectful Usage But if there had been no such Custom or Priviledge in the former ages there is now and hath been for some years last past a greater necessity and reason for it then ever when any of the Kings Servants being made a Defendant by feigned and fictitious Actions or Writs called Bills of Middlesex or Latitats Issuing out of the Court of Kings Bench in placito transgressionis upon a supposed Action of Trespass as great as the Plaintiffs malice or designed oppression to ruine and lay unjust Actions upon him can invent and a late imaginary supposed custom with an ac etiam or supposition of an Action of One thousand or ten or twenty thousand pounds added in the same Writ or Action to be afterwards viz. when the Plaintiff pleaseth exhibited against him may be cast into Prison and overwhelmed with such Complainants pretended Actions his friends so affrightned as they dare not bail him if they were able his service lost and his livelihood under his Sovereign and gracious Master taken away from him and our Kings of England by such Plaintiffs and their untruly suggested Actions reduced to as manifest dangers by Arresting or taking away their Guards or Attendants from them when he shall go or ride abroad or be recreating himself in hunting or other disports as King James was by the wicked Earl Gowries Trayterous purposes to Murder Him by sending His Servanrs the wrong way and telling them that the King was gone before another way and when such Illegal and unwarrantable Writs may have neither cause or evidence or may be for an inconsiderable or small summe of Money or perhaps none at all due unto them And have been of late such Midwives to wicked Designs and Contrivances as a Married Woman hath been by the confederacy of her Husband and the Arresting and Imprisoning her Servants by such Counterfeit Actions enforced to leavy a fine whereby to pass away the Inheritance of her Lands of a great yearly value which was after Reversed by Act of Parliament and a Gentlewomans house in S. Martins Lane in the fields neer London Robbed by Arresting of the Mistress of the House and those that were in it by such Bills of Middlesex for which the Cheater that contrived it was not long after deservedly hanged And surely such a priviledge claimed by the Kings Servants in Ordinary needs not be so quarrelled at when in the great Case which happened in Anno Dom. 1627 being the third year of the Reign of King Charles the Martyr upon Habeas Corpora's brought by four or five Gentlemen who were Imprisoned per speciale mandatum Domini Regis by the Kings Special Command signified under the hands of eighteen Privy Councellors for not lending money to the Publique necessities when they were very able to do it concerning the Arrest or Imprisonment of any of the Freeborn People of England by the Kings Warrant or Command without a cause Expressed Whereby the Judges upon a Habeas Corpus might enquire and Judge of the cause of such Imprisonment and give any of his Subjects their Libertys upon Bail to Answer the Action where the Law allowed it the many and elaborate Arguments made on those Gentlemens behalf in the Court of Kings Bench by several able Lawyers amongst which was that skilful Diver into our Common Laws Antiquities Records and Presidents the Eminently Learned Mr. Noy who except the Great and Learned Selden brought as Great an Ingeny and Intellect to the study of them and a more solid and Penetrating wit and Judgment then any or many an age hath yet produced could not keep the said Gentlemen from being remanded back to the Prisons from whence they came or hinder the opinion of the Judges of that Court amongst which was the Right Learned Justice Doddridge upon view of the President in the case of Edward Page in the seventh year of King Henry the eighth committed to the Marshalsea by the Lord Steward of the Kings House who being afterwards upon an Habeas Corpus brought before the Justices of the Kings Bench was remanded and the like in the Case of James Desmeisters committed to the Marshalsea of the Kings Houshold per concilium Domini Regis by the Kings Privy Council that those Gentlemen could not be Bailed and that by some Pesidents in many Cases where men have been Committed by the Kings Command when they have been discharged by that Court it hath been upon the Kings pleasure signified by His Attorney General or otherwise that which Sir Robert Heath Knight the Kings Attorney General then alleaged for the King in his Argument in that Case not being denied to be Law or presidented either by the Judges or the Council on the other side that multitudes of Presidents might be shewen wherein men Imprisoned for contempts of Decrees in the Courts of Chancery or Requests Courts of Exchequer and High Commission or by the Corporations or Companies of Trade in their Domineering By-laws or Ordinances were not bailed upon their Habeas Corpora's and that in the Case betwixt the Bakers of London where they Fined and Committed men to Prison for not paying of it and the like not seldom done by the Corporations and Companies of Trades in London and the lesser sort of them as of the Watermâ—n c. Thomas Hennings and Litle Page being Imprisoned in 11 Jacobi Regis when they brought their Habeas Corpora and the cause being shewen to be by reason of an Ordinance or Constitution of the Lord Mayor of London the Prisoners were sent back to abide his Order in which grand Case of the Habeas Corpora that Pious and just King did not as Oliver that Canker of our English Laws and Liberties did in the Case of Mr. Cony the Merchant Imprison or Terrifie the Lawyers which argued for them but in the Expectation and hopes of a better effect then afterwards hapned upon it gave them as much Time and Liberty of Search and Arguments against His Royal Prerogative in that particular as they could desire and those very Justices of the Kings Bench being in the next year after called before a Committee of Lords and Commons in Parliament to declare their opinions concerning those proceedings And asserting their opinions Justice Whitlocke being one of the said Judges denied that there was any Judgment therein given whereby either the Kings Prerogative might be enlarged or the right of the Subject Trenched upon that if they had delivered them presently it must have been because the King did not shew cause wherein they should have
Chamberlain Treasurer and Comptroller of the Kings most Honourable Houshold Chancellor of the Exchequer with other of the Kings Privy Councel who together with the Justices of both Benches and Barons of the Exchequer do out of the six for every County make choice of three who are in a written Bill by the Lord Chancellor or Lord Keeper of the Great Seal of England shortly after presented to the King who appointeth as he pleaseth one of every three presented unto him as aforesaid for every County to be Sheriff by his Letters Patents under the Great Seal for the year next following And by Authority of the King and his Laws the Lord Chancellor or Lord Keeper of the Great Seal of England appointeth the Judges in every year their several Circuits maketh and dischargeth all Justices of the Peace And such Petitions as could not be dispatched before the end of Parliaments were frequently adjourned to be heard and determined by the Chancellor and presenteth to all Parsonages or Spiritual Benefices in the Kings right or gift which are under the value of 20 l. per annum according to the antient valuation All the Records in the Courts of Chancery Kings Bench and Common Pleas Justices of Assise and Goal delivery are to be safely kept by the Treasurer and Chamberlains of the Exchequer which the Commons of England in Parliament in the 46th year of the Reign of King Edward the third did in their Petition to the King call the Peoples perpetual evidence and our Kings of England have therefore in several of their Reigns sent their Writs and Mandates to the Chief Justices of both the Benches to cause their Records for some times therein limited to be brought into his Treasury and entrusted with the Treasurer and Chamberlains thereof in whose custody the Standard for all the Weights and Measures of England is likewise kept By an Act of Parliament made in the 14th year of the Reign of King Edward the third Sheriffs abiding above one year in their Offices may be removed and new ones put in their place by the Chancellor Treasurer and Chief Baron of the Exchequer taking unto them the Chief Justices of the one Beneh or the other if they be present Escheators who were and should be of very great trust and concernment in the Kingdom betwixt the King and his people were to be chosen by the Chancellor Treasurer and Chief Baron of the Exchequer taking into them the Chief Justices of the one Bench or the other if they be present but are since only made by the Lord Treasurer By a Statute made in the 14th year of the Reign of King Edward the 3d. the Lord Privy Seal and other great Lords of the Kings Councel are appointed to redress in Parliament delayes and errours in Judgement in other Courts By an Act of Parliament made in the 20th year of the Reign of the aforesaid King the Chancellor and Treasurer were authorized to hear complaints and ordain remedies concerning gifts and rewards unjustly taken by Sheriffs Bayliffs of Franchises and their Vnder Ministers and also concerning mainteiners and embracers of Juries taking unto them the Justices and other Sage persons such as to them seemeth meet By an Act of Parliament made in the 31th year of the Reign of that King the Lord Chancellor and Treasurer shall examine erronious Judgements given in the Exchequer Chamber And the Chancellor and Treasurer taking to them Justices and other of the Kings Councel as to them seemeth shall take order and make Ordinances touching the buying and selling of Fish By several Acts of Parliament made in the 37th and 38th year of his Reign Suggestions made by any to the King shall be sent with the party making them unto the Chancellor there to be heard and determined and the Prosecutor was to be punished if he prove them not And that upon untrue suggestions the Chancellor should award damages according to his discretion By an Act of Parliament made in the 11th year of the Reign of King Richard the second the keeping of Assises in good Towns are at the request of the Commons in Parliament referred to the Chancellor with the advice of the Judges By an Act of Parliament made in the 13th year of his Reign in every pardon for Felony Murder or Treason the Chamberlain or Vnder Chamberlain was to endorse upon the Bill the Name of him which sued for the same By an Act of Parliament made in the 20th year of his Reign no man shall go or ride armed except the Kings Officers or Ministers in doing their Office By an Act of Parliament made in the first and second year of the Reign of K. Henry the 4th no Lord is to give any Sign or Livery to any Knight Esquire or Yeoman but the King may give his honourable Livery to his menial Knights and Esquires and also to his Knights and Esquires of his Retinue who are not to use it in their Counties but in the Kings presence The Constable and Marshall of England for the time being and their Retinue of Knights and Esquires may wear the Livery of the King upon the Borders and Marches of the Realm in time of War the Knights and Esquires of every Duke Earl Baron or Baneret may wear their Liveries in going from the Kings House and returning unto it and that the King may give his honourable Livery to the Lords Temporal whom pleaseth him And that the Prince and his menials may use and give his honourable Livery to the Lords and his menial Gentlemen By an Act of Parliament made in the first year of the Reign of King Henry the 6th the Lords of the Councel may assign money to be coyned in as many places as they will A Letter of request may be granted by the Keeper of the Privy Seal to any of the Kings Subjects from whom Goods be taken by the King of Denmark or any of his Subjects By an Act of Parliament made in the tenth year of his Reign the Mayor of London shall take his Oath before the Treasurer of England and Barons of the Kings Exchequer wherein he shall be charged and sworn to observe all the Statutes touching Weights and Measures By an Act of Parliament made in the eleventh year of his Reign Fees Wages and Rewards due to the Kings Officers were not to be comprized within the Statute of Resumption made in the 28 th year of the Reign of the King By an Act of Parliament made in the third year of the Reign of King Henry the 7th for punishments of Maintenance Embracery Perjuries Riots and unlawfull demeanors of Sheriffs and unlawfull Assemblies it was ordained That the Chancellor and Treasurer of England for the time being Keeper of the Kings Privy Seal or two of them calling unto them a Bishop and a Temporal Lord of the Kings most Honourable Councel and the two Chief Justices of the Kings
Bona Catalla sua quaecunque ac universos legales tenentes suos omnium singulorum maneriorum suorum in protectionem defensionem nostram suscepimus specialem The King to all unto whom these presents shall come sendeth greeting We considering the well accepted and laudable Services done as well unto us as our dear Mother Isabel Queen of England by our trusty John de Staunton and being therefore willing to honour him according to his deserts have made the said John a Knight of our Chamber and one of our Servants in Ordinary whilst he lives as well when he shall be absent as present And of our especial grace have taken into our special protection the said John de Staunton and all his Lands Tenements Goods and Chatels and likewise all his Tenants of his Manors Omnibus singulis nostris fidelibus tenore presentium firmiter inhibentes ne eisdem Johanni Terris Tenementis Bonis seu Catallis suis aut legalibus tenentibus maneriorum praedictorum malum molestiam prisas aut aliud impedimentum inferunt vel faciunt indebite vel injuste si quis eis injuriatum vel forissactum fuerit id eis debite reformari corrigi faciunt Streightly charging and prohibiting all our good Subjects that they do not unduly or unjustly endamage or molest the said John de Staunton his Lands Tenements Goods Chatels or his said Tenants and if any shall injure or wrong them therein that you do duly cause it to be reformed and amended And the Writs of Protection which our Kings of England have sometimes granted unto some which were imployed in their Service upon some special motives and reasons and were not his maenial or domestick Servants having been very often if not alwayes made and granted not only to protect the persons of such as were not the Kings Servants in Ordinary but specially imployed upon extraordinary occasions but de non molestando res terras tenementa homines which in the legal acceptation antiently signified their Tenants as well as their Maenial or Houshold Servants especially when instead of Rents or for some abatements made of them they Plowed and Sowed their Landlords Land Reaped their Corn and did many other Services belonging to Husbandry bona Catalla possessiones suas not to molest trouble or permit them to be troubled in their Estates Real and Personal Lands Tenements Servants Tenants Goods Chatels and Possessions and do agree with those priviledges which our Neighbour Princes of Europe and many other Nations have allowed their Servants And such or the like Protections are and have been an antient allowed priviledge not only to Foreign Embassadors but their Assistants Servants Goods and Chatels in the Dominions and Territories of Kings and Princes to whom they are sent and where they are resident Et sane quae potest tanta vis esse privilegii personae Legatorum si privilegium istis accessionibus non conceditur saith Albericus Gentilis And truly to what purpose will the priviledge of Embassadors be or enure if the Protection of their Estates as well as their persons should not attend their employments for where their persons may not be summoned cited or inforced to lay by or forsake his Service in the attendance upon the process of any of his Subordinate Courts of Justice there cannot by the rules of Common Justice and our Magna Charta that great piece of right reason and Justice be any Judgement had or obtained without appearane against them or any Execution thereupon against their Goods or Estate And it being so just and necessary for the Plaintiffs to demand Leave or Licence for the compelling of them to appear to their actions it will be as necessary becoming certainly to demand a second Leave or Licence to take out process of Execution upon any judgement obtained when as in the ordinaay course of our Laws and the intendment thereof every Plaintiff as the Records of our Courts of Justice will abundantly testifie is as it were by Petition to pray and ask leave to take out his Writ of Execution for that as the Judges may in their inferior Orbes sometimes find cause to Arrest or stay for a time some Judgements and Executions so certainly and much more in the Superior may the urgency of some present and necessary Service of the King and the Weal Publique the Kings Service and the publique being as inseparable as his Person and Authority Body Politique and Corporal require some pause or a Licence first to be demanded Such requisites and privileges drawn from the same Fountain of priviledges and reason being no otherwise in their effects then as to the joynt priviledges of Persons and Estates then the priviledges of Parliament and the Protections allowed unto the Peerage and Members of the House of Commons and their Maenial Servants in order to that publick affair and service of the King who doth not limit those favours only to their Persons and the personal service of their Servants attending upon them but do for that time comprehend and secure their Estates both Real and Personal and will not willingly permit so much as the minds of any of the Members of Parliament to be vexed by any disturbance of process or legal proceedings whilst they are employed and intended by Law to be only busied in those weighty occasions which they would be if the Real and Personal Estates of themselves or Servants which attended upon them were molested and troubled and therefore King Henry the 8th in his Speech to the Judges in the Case of his Servant Ferrers and a Member of the House of Commons in Parliament in the 33th year of his Raign said that his Learned Councel at Law had inform'd him that all Acts and Process coming out of any Inferiour Courts must for the time cease and give place to the Parliament as the highest of Courts and that whatsoever Offence or Injury is in Parliament time offered to the meanest Member of the House of Commons is to be adjudged as done both against the King and the whole Court of Parliament which was then assented unto by all the Judges of England then present saith Mr. Crompton and confirmed by divers reasons And well may it be so when it is and hath been not unusual for the Judges of the Court of Kings Bench or Common Pleas which do stand upon a less but legal Foundation to free or unattach Goods attached in the City of Lond. by their course or custom of Process of a man that had occasion to attend either of those Courts concerning some Suit or Suits there depending as to procure a Capias utlegatum against one c. and declare it to be a priviledge or liberty belonging unto those Courts in their several Jurisdictions to protect such persons in veniendo versus eandem Curiam ibidem morando inde ad propria redeundo absque arrestatione Corporum Equorum Bonorum seu Catallorum
out of his place for Bribery and Extortion it was in the Sentence or Judgment given against him said that Sacramentum Domini Regis quod erga Populum habuit custodiendum â—regit maliciose false Rebelliter quantum in ipso fuit he had falsly malitiously and traiterously as much as in him lay broke or violated the Kings Coronation Oath which demonstrates that although he had at the same time violated his own Oath made unto the King when he was admitted into his Office or Place yet his fault was the greater in breaking the Kings Oath and that part of his Justice with which he was trusted For the Grants of the Judges Places by the King durante bene placito or quamdiu se bene gesserint during the Kings pleasure or as long as they do wel behave themselves the Kings Commissions of Oyer Terminer Et Gaola deliberanda of Gaol Delivery and to hear and determine Causes in their Circuits their Oathes besides their Oathes of Allegiance and Supremacy taken at their admittance into their Places prescribed and directed in the 18th year of the reign of King Edward the third and administred by the Lord Chancellor or Lord Keepers of the Great Seal of England for the time being That they the King and his People in the Office of Justice shall not counsel or assent to any thing that may turn unto his damage shall take no Fee or Robes of any but the King himself nor execute any Letters from him contrary to the Law but certifie him and his Councel thereof and shal procure the profit of the King and his Crown in all things that they may reasonably do the same in an Act of Parliament made in the 20th year of the Reign of that King they are expresly mentioned to be Deputed by the King to do Law and Right according to the usage of the Realm the Kings Writs directed unto them stiling them no otherwise then Justitiariis suis and those Courts the Kings Courts the acknowledgment of the Judges themselves in the Reign of Queen Elizabeth and their readiness to obey all her lawful commands in the Case of Cavendish and that of Sir Edward Coke that the Judges are of the Kings Councel for proceedings in course of Justice their assisting the Lord Chancellor or Lord Keeper of the Great Seal of England upon request or sending for some of them out of their own Courts into the Chancery their attending upon the King in his House of Peers in Parliament to assist and advise in matters of Law there debated when required but not with any power of Vote or decisive Judgment their often meetings out of their Courts altogether upon any of the Kings commands or references in causes difficult by Petition or Appeal to the King and their Opinions humbly certified thereupon and attending upon the King and his Councel upon matters doubtful wherein the ayde and advice of the Regal Authority was required and whether their Patents or Commissions be durante bene placito or quam diu se bene gesserint during the Kings pleasure or as long as they shall well behave themselves are void per demise le Roy by the death of the King that granted their Patents or Commissions and to be renewed at the pleasure of his Successor may abundantly evidence that they may not claim or justly be beleived to be independant Soveraign absolute or without an Appeal to their King and Soveraign who granteth amongst many other Offices in the said Courts the Office and Place of Warden of the Fleet by the Name of the Keeper of the Kings Pallace at Westminster aad the Office thereby to attend by him or his Deputy the Courts of Chancery Common-Pleas and Exchequer and keep in safe Custody the Prisoners committed by them when all the Writs and Process of those Courts are issued under his Name and Seal and all but the Chancery which are honoured by his own Teste are under the several Testes or Subscriptions as the Law intendeth of the Chief Justices or Judges thereof together with the Exemplifications of Fines Recoveries Verdicts and other Records in the Court of Common-Pleas and the Court of Kings-Bench and in their several and distinct Jurisdictions are subjected unto and dependant upon the Regal Authority Crown and Dignity And cannot be otherwise understood to be when our Kings have sometimes fined Judges for Extortion or Bribery as King Edward the first did Sir Ralph de Hengham and diverse other Judges in the 16th year of his Reign when the Judges in the â—aid Courts cannot ex officio pardon or discharge a fine or punishment imposed or inflicted by them upon Offenders nor without his Writ of Error amend or correct Errors committed by themselves after the Term ended wherein they were committed are if they exceed their bounds subject by his Writ punishment of Praemunire to a forfeiture of all their Lands Goods Estate of their Lands in Fee-Simple or for Life to have their Bodies imprisoned at the will of the King to be out of his Protection and when he as he pleaseth commandeth the Rolls and Records of the Courts of Chancery Kings-Bench and Common-Pleas to be brought into his Treasury or the Tower of London for safety adjourneth those Courts upon occasion of Pestilence or other reason of State or Warre as King Edward the first did to York where they continued for some years after that the Judges are by Office of Court to stay surcease in many things where they do perceive the King to be concerned either in point of profit or other concernment untill they have advised with the Kings Serjeants or Councel learned in the Law when the Writs of Prohibition frequently granted by the Court of Common-Pleas or Kings-Bench in his name do signifie that he hath haute Justice power and authority over those and the inferior Courts of Justice and by his Supreme Authority doth by his Legal Rescripts and Mandates issuing out of his High Court of Chancery upon any defects in his Subordinate Courts for want of power and authority consonant or agreeable to the rules of right reason and equity moderate the rigors of his Laws correct Errors and provide fitting remedies for all manner of Contingencies or Disorders happening in the course execution or manage of his Laws or Justice testified by his Injunctions out of the Chancery to stay the rigors and proceedings in the Courts of Common-Law Commissions of Trail Baston more rightly ottroy le Baston granted by King Edward the first to inquire of and punish misdemeanours riots extortions c. which the Courts of Justice then in being had cognisance of might have upon complaint punished redressed many other Commissions of that kind made out by that other of our Kings with Commissions of Assise Association cum multis aliis or the like the Writs of Rege in consulto
signified by the Emblems or Figures of the Lyons guarding or supporting of Solomons Throne and astonishing Royalty Which most laudable custom was not only observed in the time of the Western and Eastern Emperors but of the Franks Goths Longobards and other Northern Nations who imitated them And from such honourable services and employments about Emperors Kings and Princes likewise were derived Count Palatines whom they found a kind of necessity to institute when they understood their other Subjects to be troubled that none but Romans had those honours and dignities conferred upon them and their Courts and Palaces appeared to be solitary and unfrequented and therefore opened the doors of honour to their Subjects of other Nations and Provinces as appears by the after usage of the Roman and Grecian Emperors and made and ordained Comites sacri Falatii Count Palatines which the Title of Count Palatine given by Charlemaine to Antholinus will further evidence and the Count Palatines of the Empire of Germany as Pasquier that learned Advocate of France hath remarked had their names from their Offices Superintendencies and Places which they antiently held au tour des Empereurs de Rome de la Suitte des Empereurs and in their service and attendance as Crmites Palatii were in Comitativa Principis in the Retinue of the Emperors which in the elder times were so reverenced and respected as it was not unfrequently in many Laws and good Authors stiled Sacra as meriting a veneration due unto Gods Vicegerents Et ipsa Principis Aula residentia and the Court and Palace of the Prince was saith Marquardus Freherus sometimes known by the name of Comitatus sacer comitatus a place of reverence more especially appropriate to honor and men deserving it and the French Kings Court is by the modern French at this day tearmed Comitatus and in the time of Charlemaine and his Son Hludowick Kings of France the Earls were tanquam Judices Judges in their several Earldomes or Provinces qui post Regem populum regere debent who next under the King as the Dukes did in their several Dukedoms were to govern the people necesse est ut tales instituantur qui sine periculo ejus qui â—os constituit quos sub se babent cum justitia aequitate gubernare officium adimplere procurent there being a necessity that such should be appointed who without danger of those who constituted or deputed them may have under them such as may govern them with Justice and Equity and do what belongeth to them And our Earls and English Nobility were of the like Character Esteem and Subserviency to our Kings and Princes when in the time of Bertulphus King of the Mercians who Reigned in England in the year of our Lord 851. such of them as had not as Sir Henry Spelman saith constant Offices or places in the Kings Court tenebantur ex more obsequii vinculo antiquissimo as also were the other Baronage in tribus maximis festivitatibuus Christi scilicet natalitiis Sancti Paschatis Pentecostes Regi Annuatim adesse cum ad curiam personam ipsius exornandum tum ad consulendum de negotiis regni statuendum que prout fuerat necessarium were by most antient custome and tye of obedience at three of the greatest Feasts in every year that is to say at Christmass Easter and Whitsontide to attend at the Kings Court as well for the honour of his Person and Court as to advise and councel him as there should be occasion in the weighty affairs of the Kingdom which saith that great light and restorer of our English Antiquities gave at the first an original and beginning to our great Councels afterwards and now called Parliaments and Johannes Saresburiensis stiled all the great Officers of the English Court Comites Palatini Earls or Lords of the Palace Royal at least such as being Earls were also honoured with the greater Court Dignities and had relation to the Dignities and Privileges of our English Nobility Such service and attendance of the Nobility upon the person and affairs of their Soveraign being not unusual in the dayes of Jehoiakim King of Judah when Michaiah the son of Gemariah found all the Princes sitting in the Kings house in the Scribes chamber and standing besides the King when the Roll of Baruch was read When the great King Ahasuerus made a Feast unto all his Princes and his servants the power of Persia and Media the Nobles and Princes of the Provinces being before him and he shewed the honour of his Excellent Majesty he advised concerning the misbehaviour of his Queen Vaschi with the wise men which knew the times for so was the Kings manner towards all that knew law and judgement and with the seven Princes of Persia and Media which saw the Kings face and sate the first in the Kingdome And those Officiary Dignities Honors and Privileges of the English Nobility were so consonant to the Law of Nations and the usage and customs of the Empire as in Anglia tam ante quam post Conquestore Wilhelmum Normannum Comites seu Graviones Justitiarii hisque cum ad privata quam publica judicia suis fuere in comitatibus and not only before but for sometimes after the Norman Invasion did under their Kings preside and govern the Justice of that County or Territory of which they were Earls and had allowed unto them the Tertium denarium Third penny or part of the fines and amerciaments and the customs and some other casual profits belonging to the Crown in their several Counties as our Selden a most universally learned and judious Lawyer hath in the Earldoms of Chester and Oxford observed and for some of the Ages succeeding the Norman atchievment have been Chief Justices of Englund as in the Reign of King Stephen Awbrey de Vere Earl of Guisnes Father of Awbrey de Vere the first Earl of Oxford Robert de Bellomont or Beaumont Earl of Leicester in the Reign of King Henry the 2d and Geoffrey Fitz-Peter Earl of Essex in the Reigns of King Richard the first and King John our Bracton acknowledging that our Earls and Nobility were upon occasions to attend upon the person of their Sovereign Prince calleth our Earls Comites a Comitando sive a Socieâ—ate from or by reason of their accompanying or attendance upon the person of the Prince saith dici possunt Consules Reges enim tales sibi associant ad consulendum and our Nation was not without its Local Count Palatines who had greater authorities and profits in their Counties and Jurisdictions than other Earls as those of Chester Lancaster Pembroke and the Palatineships belonging to the Bishopicks of Durham and Ely And Hoveden our old Annals and Selden that Monarch of Letters do tell us that King John die Coronationis suae accinxit Willielmuw Marescallum gladio Comitatus de Striguil
both Horse and Foot Garrisons and Commanders of Castles Towns or Forts and was believed to be necâ—ssary in the time of Justinian the Emperor Qui statuit milites conveniri tam in causis Civilibus quam Criminaelibus coram ducibus suis quod miles nisi a suo judice coerceri non possit that Soldiers should be cited and tryed aswell in causes civil as criminal before their Captains or Commanders And that a Soldier should not be compelled to appear before any other which was not in that time any new Edict or Ordinance but a Declaration of an antient law and custome in use amongst the Romans in the Infancy of their mighty Monarchy some hundred of years before the birth of our Redeemer as may be evidenced by Juvenal and what was in use and practise and accompted to be of antient institution in his time which was not long after the birth of our Saviour when he saith Legibus antiquis Casâ—â—erum more Camilli Servato miles ne vallum litiget extra Et procul a Signis justissima Centuriorum Cognitio est igitur de milite By antient laws and customes sacred held By great Camillus Soldiers were not to be compel'd To appear in Courts of Justice but in the Campe to abide And by their own Commanders to be try'd And from the like causes and considerations of the Kings service and safety of the Kingdome are allowed by our reasonable laws and customes the priviledges and franchises of the Cinque Ports that the Inhabitants within the liberties thereof do sue and are only to be sued in the courts thereof and the Kings ordinary Writs and Process do not run or are of any 〈◊〉 therein and such as are in certain special cases are only to be directed to the Constable of the Castle of Dover and the Warden of the Cinque Ports and those franchises were so allowable by law as the Abbot of Feversham in his time a man of great power and authority and armed with many and great priviledges of his own both Spiritual and Temporal being imprisoned by the Warden of the Cinque Ports for an offence committed therein for which the Arch-bishop of Canterbury citing the Kings Officers there into his Ecclesiastical Court the Record saith Quia secundum consuetudinem regni approbatam ratione juris Regii ministeri Regis pro aliquibus quae fecerunt ratione officii trahi non debeant Rex prohibuit Archiepiscopo Cantuar. ne volestari faciat ministros suos Dover de eo quod Abbatem de Feversham pro delicto suo incarcerassent per considerationem Curiae quinque portuum de Shepway in regard that by the custome of the Kingdome approved and the right and prerogative of the King the Kings Officers are not to be compelled to appear in other Courts the King prohibited the Arch-bishop of Canterbury that he should not molest or trouble his Officers or servants at Dover for that by a judgement of the Court of the Cinque Ports holden at Shepwey they had imprisoned the Abbot of Feversham for an offence by him committed From the like causes and considerations of the Kings service and good of his household and servants the multitude of tenants heretofore of the Antient Demesnes of the Crown which were in the hands of King Edward the confessor or William the Conqueror for that as Sir Edward Coke saith they plowed the Kings Demesnes of his Maners sowed the same mowed his Hey and did other services of Husbandry for the sustenance of the King and his honorable household to the end that they might the better apply themselves to their labors for the profit of the King had the priviledge that they should not be impleaded in any other of the Kings Courts for any their lands or in actions of accompt Replevin ejectione firmae Writs of Mesne and the like where by common intendment the realty or title of lands may come in question are to be free and quit from all manner of Tolls in Fairs and Markets for all things concerning their husbandry and sustenance of Taxes and Tallages by Parliaments unless the Tenants in Antient Demesnc be specially named of contributions to the expences of the Knights of the Shire for the Parliament and if they be severally distreined for other services they may all for saving of charges joyne in a Writ of Monstraverunt albeit they be several Tenants and where they recover in any action are by the Laws of William the Conqueror to have double costs and damages From which Spring and fountain of priviledges in relation only to and for the concern of the Prince and Son and Heir apperant of the King of England and his revenue hath been derived those of the Court of Stanneries or jurisdiction over the Tyn Mines where by the opinion of Sir VVilliam Cordell Knight Master of the Rolls Sir James Dier Knight Cheif Justice of the Court of Common Pleas and Justice Weston no Writ of Error lyeth upon any judgment in that Court and by an act of Parliament made in the 50 th year of the raigne of King Edward the third and the grant of that King all Workmen in the Stanneries are not to be constrained to appear before any Justice or other Officers of the King his Heirs or Successors in any plea or action arising within the Stanneries unless it be before che Warden of the Stanneries for the time being Pleas of land life or member only excepted nec non recedant ab operibus suis per summonitionem aliquorum ministrorum seu heredum nostrorum nisi per summonitionem dicti custodis and should not depart from their said works or labors by reason of any Summons of the Officers of the King or his Heirs unless it be by the Summons of the aforesaid Warden were to be free as to their own goods from all Tolls Stallage Aides and Customes whatsoever in any Towns Havens Fairs and Markets within the County of Devon and that the VVarden aforesaid should should have full power and authority to administer Justice to all that do or should work in the Stannaries or any forreigners in and concerning any plaints trespasses contracts or actions except as is before excepted arising or happening within the Stannaries and that if any of the workmen be to be imprisoned they shall be arrested by the said Warden and kept in the prison of Lydeford and not else where untill according to the Law and custome of England they shall be delivered All which before mentioned Exemptions and Priviledges as effects flowing and proceeding from their true and proper causes may justifie those more immediate and proximate of the Kings Servants in Relation to his person and a greater concernment more especially when so many of the people of England can be well contented to enjoy not a few other immunities exemptions and priviledges which have had no other cause or foundation then the indulgence and favour
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
convenire Commanded the whole County without any delay to assemble together as well French as English and more especially such of the English as were skilful in the ancient Laws and Customs of England ubi Goisfredus Bishop of Constance in loco Regis saith the Leiger Book of Rochester vel vice Regis saith Eadmerus fuit Justiciam illam tenuit â—at Judge for or in the place or stead of the King as his Commissioner Hujus placiti multis testibus multisque rationibus determinatum finem postquam Rex audivit laudavit laudans cum consensu omnium principum suorum which could not be the Commons in Parliament as it is now formed or the then Commune Concilium the Parliament consisting of his Nobility Bishops and Peers who could not all of them be stiled Princes but were rather such of his greater sort of Nobility as were then attending upon him in his Court assembled and met together by his Command in that great and more than ordinary County-Court confirmavit ut deinceps incorruptus persevâ—raret â—irmiter praecepit the end of which Trial made by many Witnesses and Reasons being certified to the King he greatly approved it and by the consent of all his Princâ—s confirmed and strictly commanded it to be inviolably observed In the Reign of William Rufus his Son the Delegated Justice of the King in his Courts was so little believed not to be the Kings or the Judgments thereby or therein given not owned or understood to be given by the King as it was the Opinion as well as Complaint of Anselme Arch-bishop of Canterbury how justly or unjustly the Men of that Age when the Church-men were unruly and did not seldom forget themselves and their Benefactors did best know quod cuncta Regalis Curia pendebant ad nutum Regis nilque in ipsis nisi solum velle illius considerari That all matters in the Kings Court depended upon his Will and his onely Will was the Director thereof and whether the particular Interest of that stout and pious Prelate had therein misled his Judgment or no they must be too much unacquainted with our Laws reasonable Customs Annals Memorials Records and Accompts of Time and Transactions bigane and past as well as those of other Nations and the right origination or signification of the word Curia or Court and the no infrequent usage or acceptation thereof if they do not acknowledge that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nuncupatur potestas Dominium 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui potestate fretus est judiciumque exercet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi habitacula Domini That Curia signifieth Power and Dominion and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that exerciseth that Power in giving Judgment therein and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Habitation or Place of Residence of the Lord or Superior dicebatur autem Curia saith the judicious Sr. Henry Spelman primo de Regia seu palatio Principis inde de familia Judiciis in ea habitis ritu veterrimo it being at the first or more especially called Curia or the Court and took its Denomination by a most antient Usage or Custom from the Kings House or Palace and afterwards from their Houshold or Family and the Place where Kings did administer Justice And so untill Courts for the distribution of Justice were allow'd for the ease of Princes and better accommodation of their People out of their Houses or Palaces it will not be easie or possible to espy any essential difference as to the Place of doing Justice betwixt Curia Regis and Camera Regis the Court or Chamber of the King for after that some of our Courts of Justice in England by the indulgence of their Soveraigns ceased either to be ambulatory or resident in their Palaces those that have not bid a defiance to that universally allowed and entertained Maxim by all or most part of Mankind Qui facit per alium facit per se He that doth by another is truly and rightly said to have done it himself and are not resolved to encounter or be adversaries to all the right Reason which they can meet with or to pick up such weak and incogent Arguments as may make a shadow rather than substance of Truth or right Reason ought to confess that there is no real difference between the Kings doing of Justice in his own Person and cauâ—ing it to be done by others or betwixt the hearing of Causes or doing of Justice in the Hall or his Privy Chamber or any other Room of his House or Palace and that before and from the Conquest untill after the thirty eighth Year of the Reign of King Edward the Third whilst the Chief Justice of the Court of Kings Bench attended our Kings as well in their Courts as Progress to assist him in matters of Law and the Decision of Pleas of the Crown and such matters of Law as were not appropriate to the Decision of the Court of Common Pleas as it was then and hath been since constituted which did not leave the Kings Court or Palace untill King Henry the Third commanded it in the twentieth Year of his Reign to abide at Westminster Our Kings of England have in their own Persons heard some or many Causes and given divers Judgments in Aula in their Court or Palace in some Causes wherein they had the assistance of the Lord Chief Justice of the Kings-Bench and when they did not do it personally by reason of their frequent Divertisements Addresses of Ambassadors from Foreign Princes or in respect of the many great Affairs and Cares of State and Government which could not afford them the time or leisure to do it did cause it to be done by their Authority and by their constituted Justices who Vicaria Potestate by as it were a Deputation Lieutenancy or Assignation to those onely purposes represented them and were impowered to do it the Courts of Justice in William the Conquerors time being called Justicia Regis the Justice of the King and the Judges or Justices in the Reign of King Henry the Second Justiciae Regis in the abstract the Kings Judges or Justices For the Kings Justice or Superiority was never yet by any Law or Reason absolutely or altogether conâ—ined to his delegated Courts or authorized Judges or Justices or to any certain or determinate Place as that froward and powerful enough Anselme Archbishop of Canterbury could not but acknowledge when in a Parliament or Great Council holden in the Kings Court at Winchester by the Command of King William the Second or William Rufus in the Contest betwixt him and that King concerning that Archbishops resolution oâ— going to Rome and the Kings refusing to give him Licence divers of the Lords and Bishops passed in and out betwixt them and at last the Archbishop himself went in unto him to expostulate and debate the Matter with him And in the making of the Constitutions of Clarendon in
such Causes as all the Kings and Princes of the civilized Part of the World have used to do And of small or no force or avail would be that Clause in our Magna Charta so hardly obtained by our Fore-fathers that the King Nulli negaret Justitiam vel Rectum should not deny Justice or Right unto any who demanded it and little deserving to be called or thought a Liberty if it were not within the reach of his Power and it would be a kind of Injustice to oblige or require him to do that which he could not Which the Reverend Judges and Sages of the Law in the eighteenth year of the Reign of King Edward the First were so unwilling to interpret to be out of his Power As when John Bishop of Winchester having granted unto him free Chace in all the Demesn Lands and Woods of the Prior and Covent of St. Swithen in Winchester and their Successors and being in the Kings Service in the Parts beyond the Seas and having his Protection for all his Lands Goods and Estate brought his Action wherein he did set forth the Kings Protection and his being as aforesaid in his Service against Henry Huse Constable of the Kings Castle at Portcester for that he had hunted in his aforesaid Chace and Liberty in contempt of the King and contrary to his aforesaid Protection whilest he was in his Service as aforesaid To which the said Henry Huse pleading that what he had done was lawful for him to do by reason of a Privilege belonging unto his said Place or Office of Constable of the Castle aforesaid and Issue being joyned thereupon the Court stayed it and delivered their Opinion That no Jury ought to be impannelled nor any Inquisition taken thereupon in regard that Inquisitio ista Domino Rege inconsulto tam propter Cartam ipsius Domini Regis porrectam quam nemo per inquisitionem patrie vel alio modo judicare debet nisi solus Dominus Rex quam ratione Ballivae predict ' que est ipsius Domini Regis ad quam predictus Hâ—nricus dicit libertatem predictam pertinere that such an Issue or Inquiry ought not to be the King not consulted or made acquainted therewith as well in respect of his Charter produced which none but the King by any Jury or Trial ought to Judge as in regard of the Liberty alledged by the said Henry to be belonging to the King Et dictum est partibus quod sequantur versus Dominum Regem quod precipiat procedere ad predict ' inquisitionem capiend ' si voluerit vel quod alio modo faciat voluntatem suam in loquela predict And the Parties were therefore ordered to attend and petition the King to command the Judges if he please that they proceed in the said Action or by some other way declare his Will and Pleasure concerning the said Action and is a good direction for Subjects to ask leave of the King before they Arrest or any way endeavor to infringe the Priviledge of his Servants In the twentieth year of the Reign of that King in a Case in the Court of Common-Pleas where William de Everois being Demandant had complained to the King that the Judges of that Court did delay to give Judgement and the Judges acknowledging that he had been long delay'd in regard that the said William required Seisin to be delivered unto him by a Contract made in the time of War which he denied Dictum est prefatis Justic ' quod ad judicium procedant prout facere consueverunt Et faciend ' est de seisina contractibus factis in tempore partes Guerre the King ordered the Judges that they should proceed to Judgement as they used to do and make an Order concerning the Seisin and Contracts had between the parties thereunto in the time of the War In the same year a Complaint being made to the King that Sir John Lovel Knight being Plaintiff before the Justices of the Court of Common-Pleas in a Writ which had long depended and was made in an unusual Form of the Chancery and the Defendant in the beginning of the Plea before Thomas of Weyland and his Associates the Justices of the said Court had put in his Plea of Abatement and Exceptions to the said Writ and prayed that it might be Entred upon the Rolls and Recorded which afterwards could not be found but in regard that Elias de Beckingham one of the Judges remembred the said Plea to whose onely memory a greater Credit is to be given than to the Rolls of the said Thomas of Weyland who with the rest of his Fellow Judges except the said Elias of Beckingham were formerly Fined and punished for other Misdemeanors Et idem Elias semper fideliâ— extiterit in servicio Regis fideliter se gesserit and the said Elias was always faithful and in the Service of the King did well behave himself And all the then Judges did agree that if a Writ of that Form should be brought unto them and pleaded in Abatement they would immediately quash it And for that non est Juri consonum quod per maliciam predict Thome sociorum suorum sibi adherentium qui Exceptiones Tenentis admittere noluerunt cum ipsum proposuerit tempore Competenti non allocaverunt per prout prefatum Eliam recordatum est It is not agreeable to Law that by the malice of the aforesaid Thomas and his Fellow Judges confederating with him who would not admit or allow of the Tenants Exceptions when it was in due time pleaded as by the said Elias was witnessed Dictum est Justic ' quod procedant ad Judicium super exceptione Tenentis prout fuerit faciend ' ac si in Recordo inveniretur The Judges were ordered to proceed to Judgment upon the Tenants Exception as it ought to be done if it had been recorded In the year next following William de Mere Sub-Escheator of the King in the County of Stafford and Reginaldus de Legh who was one of the sworn Justices of the King having an Information brought against them before the King and his Council the Justices of the Court of Kings-Bench for that after the death of Jeffery de Howâ—l who held Lands of Ralph Basset by Knight-service and the death of the said Ralph who had seized all the Lands of the said Jeffery and had in his life time the custody and marriage of William the son of Jeffery and dying seized of Lands holden of the King in Capite and of the custody of the said William and the Heir of the said Ralph being likewise under age and with the Lands of the said Ralph seized by the said Sub-Escheator he suffered the Heir of the said Jeffery without the Kings Writ to enter upon the Lands of the said Jeffery And the said Reginald de Legh by fraud and collusion betwixt him and the said Sub-Escheator took away the Heir of the said Jeffery and
married him To which Information the Sub-Escheator pleading that he did not seize the Lands which he that followed the Suit for the King proved that he did and Reginald de Legh pleading that the said Ralph before his death upon view of the said Wards Writings and Evidences finding that he had no Right thereto did acquit and release it and that the like appearing to the said Reginald by the sight of the said Writings he did satisfie and agree with the Friends of the said Ward for the said Marriage but confessed that he did take notice that the Sub-Escheator had seized the said Lands but the said Sub-Escheator perceiving that the King had no Right thereunto did relinquish it to the Friends of the said Heir And as well the said Reginald as the said Sub-Escheator petunt dicunt quod si videatur consilio Domini Regis quod in aliquo deliquerunt quod Dominus Rex suam inde faciat voluntatem did petition and pray that if it should appear to the Court that they had offended in any thing the King might do his Will and Pleasure therein a Modesty and Submission too little used now of later Times whereupon the Court declaring Quod potius pertineat Ministris Domini Regis maxime Justiciariis suis Statum Domini Regis jura Haeredis in custodia ipsius Regis Existentium manu tenere quam in aliquo infringere That it belong'd rather to the Ministers and Officers of the King more especially his Justices to maintain his Estate and the Rights of the Heir within his custody than in any thing to infringe them did adjudg that the said Reginald and Sub-Escheator should be sent prisoners to the Tower there to remain during the Kings pleasure and that the said Reginald should satisfie the King for the Marriage of the said Heir and the said Lands should remain in the Kings hands with a Salvo Jure saving of the Right of all Pretenders thereunto In the three and thirtieth year of the Reign of the aforesaid King upon the Petition in Parliament of Ranulph the Son of Hugh le Mareshal that whereas he was Demandant by a Writ of Entry against the Rector of Ashrugg for a Messuage and divers Lands and he alledged that he could not answer without the King It was answered Rex vult quod respondeatur quod Justiciarii procedant sed certificent Regem super hoc ante redditionem Judicii c. The King willeth that the Tenant do answer the Demandant and that the Justices do proceed but certifie the King thereof before they give Judgement And if then and ever since our Kings have had a Super-intending decision and confirming Power of Judgement in matters of Justice and that without it nothing can by our Laws and reasonable Customs be done in Parliament the highest of all their Courts where the King is as it were the Ens Potentiale and is no less than the Constituent Principle and Soul that animates all their Sanctions where the Laws and Judgements receiving life and vigor from Him and have their Energy do not seldom appear to have been made with Rex voluit the King willeth Rex providit the King provideth Rex mandavit the King commandeth Rex statuit the King appointeth Rex ordinavit the King ordaineth c. all the Courts of Justice and Equity in Westminster Hall and all the Inferior Courts of Justice will not be able to produce if Prescriptions could avail against the Kings Rights and Means of Government any Prescription or any Law Custom or Allowance to exempt them from the Kings Supream Jurisdiction whose Royal Ancestors and Predecessors did heretofore upon all extraordinary occasions so much praeside and intermeddle in their Courts of Justice as Fleta an Author of good account who as hath been before mentioned did about the later end of the Reign of King Edward the Second or the beginning of the Reign of King Edward the Third write his Book of the Laws of England and Customs of Courts at that time used doth declare the usage then to be That when the King in his Progress or Removal from his Palace at Westminster to any other County or Place to reside for a time as our Kings did heretofore often use to do and was in any other County the Steward of his Houshold as Deputy to the Chief Justice issued forth his Writ to the Sheriff of the Place or County where the King was to reside to cause to come before him at a certain day wheresoever the King should be in his Bailywick all Assizes of Novel Disseisin Mort d'Auncester last Presentations Grand Assizes all Juries Inquisitions and Attaints Pleas of Dower and which were summoned to be determined before the Kings Justices at the first Assizes when they should come into those Parts And all Pleas Juries Inquisitions and Attaints assigned to be heard before the said Justices but were not determined giving the parties a day to prosecute if they pleased and likewise to come before them at a day prefixed And to cause to be brought before them all Prisoners Bails and all Attachments which appertain to the Goal-Delivery quod quidem mandatum frequentur retro trahitur per ejusdem Senescalli mandatum Which Tryals might notwithstanding saith Fleta be recalled by the Stewards Mandate which would necessarily produce some delay of Justice or disturbance of the Peoples affairs or expectations Eo quod Rex forte novis emersis propositum suum mutaverat in regard that the King upon some new Emergencies had altered his minde or purpose But if the King did not decline or forbear his intended Progress then was holden the Goal-Delivery by the Steward And all Duels or Tryals by Battels Appeals and all criminal Matters were determined by him with what conveniency he might and afterwards all Causes concerning Trespasses done within the Verge and after that the Assizes and Juries Obligations and Contracts wherein the Debtors had of their own accord bound themselves to be tryed before the Steward and Marshall of the Kings House placita autem quae ibidem terminari non poterint de Comitatu in Comitatum die in diem poterit adjornare vel in Banco vel ad primas Assisas vel alibi secundum quod fuerit faciend ' donec fuerunt omnia terminata but those Pleas which could not be there determined were to be adjourned from day to day or County to County or to the Common-Bench or unto the first Assizes or elsewhere as it should be thought meet until all were rightly determined Et haec omnia ex Officio suo licite poterit facere non obstante alicujus libertate And all this he might by his Office lawfully do notwithstanding any mans liberty And surely such a Super-intendency of the Soveraign was as much allowed to be Law as Reason in the nineteenth year of the Reign of King Henry the Sixth when upon an Affray in London for rescuing a Soldier a
under His Seal and Teste Me Ipso directed to all His Courts of Justice And are as Bracton saith Formata ad similitudinem Regulae Juris framed by and according to the Rules of Law whiâ—h warranting many of the Proceeding thereof are in the Assize betwixt Wimbish and the Lord Willoughby in Trinity Term in the sixth year of the Reign of King Edward the Sixth said and not denyed to be Law and the Act of the King but not of the Chancellor So as they who shall endeavour to impose upon other men that the King is not by Law presumed to be present in his Court of Kings Bench where the Records do mention the Judgements given therein to be coram Rege before the King as if he were personally present with the Judges of that Court who are assigned to assist Him may as to the Kings Power in matters of Justice and over the Judges and Courts delegated by Him do well to seek a reason which is justly to be feared will never be found why it should be Law or Reason for King Alfred in the discords or ignorance of his Subordinate Judges in the distribution of Justice to hear and determine the Causes Himself or for King Canutus long after to judge the Causes of such as complained unto him when our Bracton doth not at all doubt of it when he saith that the Judges nullam habent Authoritatem sed ab alio i. e. Rege sibi Commissam cum ipse qui delegat non sufficiat per se omnes Causas sive Jurisdictiones terminare they have no Authority but what they are intrusted with by the King who granted it when as he who delegated them is not able or sufficient by himself to hear aad determine all Causes in every Jurisdiction unto which our Register of Writs that Pharmacopeia Director and Magazine of Medicines and Remedies for many a Disease in the Estates and Affairs of the People which Justice Fitz Herbert in his Preface to his Book De Natura Brevium of the Nature of Writs calleth The Principles of the Law and the Foundation whereupon it dependeth and in Plowdens Commentaries is as to many things truly said to be the Foundation of our Laws and so Authentique as Brown Justice in the Case betwixt Willon and the Lord Barkley in the third year of the Reign of Queen Elizabeth declared that all Writs were to pursue the Forms in the Register and it was enough to alledge so is the Register will easily assent and all our Books of the Law all the Practice and Usage of our Courts of Justice all our Records Close and Patent Rolls and our Kings hearing and determining of Differences betwixt the Common Law and Ecclesiastical Courts and Jurisdictions and their making of Orders to reconcile the Proceedings of the severall Judges thereof and the like betwixt the Admiralty Court and the Courts of Common Law ordered decided and agreed before King Charles the First and His Privy Council in the ninth year of His Reign the Judges in criminal Matters not seldom attending the King for a Declaration of His Will and Pleasure where a Reprieve Pardon or Stay of Execution shall be necessary will be as so many almost innumerable powerful and cogent Arguments to justifie it And a common and dayly Experience and the Testimony of so many Centuries and Ages past and the Forme used in our Writs of Scire Facias to revive Judgements after a year and a day according to the Statute of Westminster the 2. with the words Et quia volumus ea que in Curia nostra rite acta sunt debite executioni demandari because we would that those things which are rightly done in our Courts should be put in execution c. may bear witness of that Sandy Foundation Sir Edward Coke hath built those his great mistakings upon and those also that the King cannot propria Authoritate Arrest any man upon suspition of Treason or Felony when the Statute made in the third year of the Reign of King Edward the First expresly acknowledgeth that the King may Arrest or cause men to be Arrested as well as His Chief Justice without distinction in ordinary and civil or criminal matters and when by the beforemention'd Opinions of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Lord Chief Justice of the Court of Common-Pleas and of all the Judges of England delivered under their hands in the Four and thirtieth year of the Reign of Queen Elizabeth it was acknowledged that She or the Lords of Her Privy Council might do it And in the before recited great Case of the Habeas Corpora in the Reign of King Charles the Martyr there was no question made but that the King might lawfully do it with a cause expressed in the Warrant And many a Nobleman and others hath in several of our Kings Reigns either upon suspition of Treason or Flagranti Crimine in or very near the acting of it or upon great Misdemeanors been Arrested by our Kings and Princes onely Command and sent Prisoners to the Tower of London As the Great Mortimer Earl of March by King Edward the Third the Pompous Cardinal Wolsey and Queen Ann of Bulloin by King Henry the Eighth the Duke of Northumberland by Queen Mary the Duke of Norfolk and Earl of Essex by Queen Elizabeth for Treason Robert Earl of Somerset and his Lady committed for Felony Sir Tho. Overbury for refusing to go Ambassador when he was sent by King James Henry Earl of Oxford for striking up a Great Lords heels in a Solemnity of a great Feast when the French Ambassador was entertained in Westminster Hall for presuming to offer to wash his hands after the King had washed in the Basin which as Lord Great Chamberlain of England he had holden to the King Thomas Earl of Arundel for marrying the Lord Matravers his Son to the Sister of the Duke of Lenox and Richmond without his Licence and Philip Earl of Pembroke and the said Lord Matravers for striking and scuffling with one another in the House of Peers in Parliament and some others by King Charles the First and some by His now Majesty and our Parliaments have many times in some Charges brought against offenders of the Weal Publique petitioned our Kings and Princes to do it and many others have been so committed in the Reigns almost of all our Kings and Princes of which every Age and History of this our Kingdom can give plentiful Examples which we may believe to have been done by good and legal Warrant when in all our many Parliaments and Complaints of the People therein such Arrests and Imprisonments have not been in the number of any of their complained Grievances for otherwise what Power Writ Authority or Warrant of a Judge or Justice of Peace could have seiz'd upon that Powerful Mortimer and taken him in Notingham Castle out of the amorous Embraces of Queen Isabel the
and the Responsa prudentum of their Commissionated Justices and the Reasonings and Dictates of those Disciples of refined Reason and how wide also is the difference betwixt Deliberation and things spoken of a sudden betwixt Arguments solemnly made both at the Bar and at the Bench and that which passeth from them obiter or in transitu hastily and without any premeditation or in passage or as circumstantial to some other matter or when it was not subjectum Argumenti the subject or material part of the Argument but came in as foreign or was not the principal Design thereof or was but as some of the Law Reports do mention other things to have been spoken onely ad mensam as they sate at Dinner or Supper or in their private Conferences or per Auditum by Hear-say or Report of another coming in from a Court or Business at Law where they that made the Report were not present neither were those Sons of Wisdom ignorant that Laws were to be so subservient to Government as not to incumber the just means thereof and the Power and Authority which should protect and take care of it For although Kings and Princes ought in performance of their Oaths taken at their Coronation to make the Methods and Rules of their Governments where Justice and Reason shall perswade it to come up as near as they can Legum suarum praescripto to the minde and direction of their established and allowed Laws and reasonable Customs of the Kingdom and moderate and guide their Power as Bracton saith to the right end for which it was ordained yet the Suprema Lex Salus Populi ne quid detrimenti Respublica capiat the Supream Law to heed above all things next to the will and commands of the Almighty King of Kings the safety of the People and Weal Publique committed to their charge wherein their own is not a little concern'd being not to be neglected enjoyns the care and observation of that great Principle in the Eternal Laws of Nature and right Reason that there ought to be in all Kings Princes and Governors such a Power and Means extraordinary as may answer the purpose of Government procure Justice relieve Necessities and repel any the Incursions of Dangers which present Laws or the greatest fore-cast could never provide or before-hand arm against when Time Necessities or Hazards imminent cannot tarry for the popular or long deliberations or assent of a Multitude who can sooner bring upon themselves a ruining and fatal Discord than procure any help at present and that to oblige Government to a close and pertinacious adhering to Laws or Rules already established which can yield them no relief or at the most none at present may be as inconvenient and destructive as to limit a Captain Master or Pilot of a Ship going to Sea what Orders and no other he must observe when Pirates or Enemies assaults unlooked for the Furies of the merciless Windes and Seas or those many other Misfortunes of which the Seas do produce as great a plenty as they do variety shall rush or break in upon him and must of necessity require other helps or directions and cannot always sayl by Card or Compass or in sight of a conducting Pole-Star but most sometimes for the preservation of himself the Ship and Passengers lowr his Sayls cut his Cables or Main-mast or throw Goods over-board to be recompensed by those whose good and safety was procured by it Or might be as fatal as it would be to an Army when a General or Commander of it shall be pinnion'd and fetter'd with Instructions or Authorities ill calculated and must not go beyond them when their Cares Arts and Stratagems are not to be before-hand prescribed by Laws Instructions or Rules of War but are to be used and practised as Occasions Opportunities Advantages or Disadvantages Successes Dangers or Misfortunes shall advise And therefore if we look down from the hills of Time into the valleys of the Ages past and take a view of the Laws and Constitutions of our Princes the Records and Monuments of their Justice distributed by themselves or the Judges their Substitutes the weight of the Reasons of their Judgements therein and the Obedience which the People have from Age to Age readily paid unto them they that will not wilfully sacrifice to a peevish Obstinacy may see cause enough for our Kings as well to make use of extraordinary Helps and Remedies in order to Justice and the Weal Publique as their delegated Judges have done by that which they call Office and Discretion or course of Court and Equity of Statutes in many Causes too many to be here instanced when the Laws would too much streighten them or not permit them to do that which Justice would require or expect at their hands to believe that the no unfaithful or unlearned Judges in the former Ages did not incroach upon the Liberties of the People or wanted a Warrant of right Reason when they had such a veneration and respect to the Prudence of divers of our Princes their Reason and Necessities of State and the preservation of the People and in doing of Justice as in the sixth year of the Reign of King Richard the First Adam of Benningfield and Gundreda his Wife having brought a Writ of Dower against Robert Mallivell and Pavie his Wife for seven Carves of Land in Raveneston with the Appurtenances in the County of Nottingham of which the said Gundreda had a Fine levied unto her in the Court of King Henry by Robert Mallivell Father of the said Robert Mallivell and thereof produced the Chirograph and alledged that the said Robert the Son had disseized them in the War or Rebellion of Earl John the Kings Brother and was with him in the War against the King at Kingeshage and that by reason of the Seisin of the said Robert by the said Earl John the Land was taken into the Kings hands as Hugh Bardo witnessed but the said Robert pleaded that he paid a Fine to the King for it and for that Land to have his Lands again and for that produced the Kings Letters to the Sheriff of Nottinghamshire who attested the truth thereof Et Dominus Cancellarius dicit quod ipse accepit ab ore Domini Regis quod ipse redderet Seisinam terrarum omnibus illis qui disseisiti fuerunt per Comitem Johannem dicit quod ratum habeâ—ur quod ipsi disseisiti fuerunt per Comitem Johannem inde consideratum est quod magis ratum habetur quod Dominus Rex ore precipit quam quod per literas mandavit quod Adam Gundreda habeant Seisinam suam and the Lord Chancellor witnessed that he was commanded by the King by word of mouth that he should make Livery of their Lands to all which were disseized by the said Earl John which would have required a good Warrant in a matter concerning so many and said that it was proved that they
hinder such intollerable mischiefes as Manslaughter Sacriledge burning of Houses Spoils Depredations or Plunder and other enormities which besides the evils before Committed might happen or ensue if a sudden remedy in such a case should not be applyed Et etiam quod Dominus Rex qui est omnibus et Singulis de Regno suo Justitiae debitor non potuit in hoc casu nisi Injuriam Coronae sue intulisset dissimulasse quin concessisset breve per quod citius et celerius pervenire posset ad cognitionem veritatis rei pred â—um petitum â—uerit And likewise that the King who to all and every of the people of his Kingdom is a debtor of Justice and ought to do it could not in this case unless he should do an injury to his Crown dissemble or forbear the Punishment thereof or abstain from the granting of a Writ when it was required whereby he might the sooner come to the knowledge of the matter aforesaid and it was by the aforesaid Judges of the Kings Bench adjudged Quod breve predictum in casu isto in casibus consimilibus est necessarium et rationabile that the Writ aforesaid was in that Case and the like necessary and reasonable And as to what the Earl of Gloucester had alleaged that it ought to have been a Judicial Writ videtur consilio Domini Regis it seemed to the Judges that Dominus Rex a quo omnes ministri sibi subjecti recordum habent est superlativum et magis arduum recordum et supra omnes ministros suâ—s et processus et record rotulorum praecellens the King under whom all his ministers do derive their Authority to make their Records hath a more high and superlative Record excelling that of all his Ministers his Justices being by Sir Edward Cook so stiled Et etiam antequam Dominus Rex inhibet circumspicit et considerat Judicio interiori propter utilitatem communem ut evitetur deterius quod oriri possit et subsequi ex malo incepto nisi inhibitio interveniret et sic procedit inhibitio ex praemeditato Judicio conscientiae Domini Regis propter bonum pacis And also that the King doth before he maketh his inhibition forecast and consider within himself what may be done for the Weal publick to the end that he may prevent a worser evil or mischief which might arise or be the consequence of an evil beginning if he should not have made such an inhibition And therefore that Inhibition did proceed out of the Judgement and dictates of the Conscience of the King for the Peace and welfare of his Kingdom Contra quod Judicium si quis praesumpserit attemptare quanto citius et debitus possit habere processus ut super hoc convincatur veritas super delinquentem in hoc casu tanto honorabilius est Regi Majestati et regno et populo utilius et magis necessarium which Judgement if any shall resist or contradict by how much speedier a due Process may be had for the Conviction of the Offender by so much the more Honorable it is for the Kings Majesty and the more profitable and necessary for the People and Kingdom Per quod videtur in hac parte quod Inhibitio procedit proprie et Judicio aquo predictum breve quod vocatur Scire facias debite sumi potest maxime cum res supradictâ— specialius in hoc casu tangat Dominum Regem Coronam et Dignitatem quam aliam tertiam personam By which in this Cause it appeared to the Judges that the Inhibition was duely and well granted and had its Original from the Judgement of the King from which the aforesaid Writ which is called a Scire Facias was deduced especially when the matters aforesaid did more concern the King his Crown and Dignity than any third Person And it was the Opinion of the Judges of the Court of Kings-Bench in that before mentioned judgment in the three thirtith four thirtieth year of the Reign of that King in the Case betwixt the Prior and Bishop of Durham that any ordinance award or acknowledgement made in the Kings presence and by him affirmed was to be more believed and to have a greater force than a Fine levied before his Justices conformable to the Civil Law which saith that Principis dicto fides adhibenda plenissima si Officii ratione aliquis a se vel coram se actum vel gestum esse verbo vel literis attestatur An unquestionable Faith is to be given to what in the Office or Affairs of the King shall be done by or before Him attested by his Word or Letters In Trinity Term in the nineteenth year of the Reign of King Edward the second in a Writ of Novel Disseisin brought by Isabella the wife of Peter Crok after the Kings Writ of Prohibition to proceed Rege inconsulto obtained by the Bishop for that he pretended it to have been forfeited to the King and granted unto him saving the Reversion and She replying and issue being joyned and two hundred forty pound Damages given and the King having afterwards sent his Writ to Proceed and the Bishop bringing his Writ of Error and Errors being assigned amongst which one was that the King understanding that the Judges had taken the Assise and given Judgement had sent another Writ to Richard de la Rivere one of the Justices in the Commission commanding him that Si ita esset that if it were so he should send the Record and Process to the King and that the said Justices post receptionem brevis predict nullam potestatem in hac parte habentes ad predictum breve Regium nihil considerantes Erronice et minus rite processerunt ad Judicium predict reddend c. After the Receipt of the Writ aforesaid had no Power in that behalf but had erred in not regarding the Kings Writ and proceeded illegally unto which the said Isabella replying that after the taking of the Assise the King had sent his Writ which was inrolled in the Record that the Justices should Proceed Cum omni celeritate qua de Jure et secundum legem et consuetudinem Regni Angliae with as much speed as by the Law and Customs of England they might Quibus recitatis et plenius intellectis Record et brevibus predictis videtur Curiae quod ex quo pretextu illius brevis eis directi de procedendo ad Judicium c. Quod est de posteriori dato quam predictum breve de venire faciend Recordum et Processus c. Per quod breve de venire faciend c. Potestas Justic. eis extitit ablata nec in eadem brevi de procedendo ulla mentio fuit de allegatione ipsius Episcopi predicta nec de eo quod Dominus Rex alias eis mandavit quod post Captionem Assise predict ad Judicium inde reddend inconsulto Rege minime procederent ad Judicium predict
Laws of this Land said that it was an ordinary Complaint as well in the Temporal as the Civil and Ecclesiastical Courts that our Lawes were far otherwise interpreted than they were in former Ages and declared that the King by communicating his Authority to his Judges to expound his Lawes doth not thereby abdicate the same from himself but may assume it again unto himself when and as often as he pleaseth And was long before that so believed to be consistent with our Magna Charta the doing of Justice to his people and the dernier resort or ultimate Appeal as Saint Paul did unto Caesar and so desirable by those that could have remedy no where else as Reginald Basset having great Suites with William de Harecourt Thomas de Astley and other Knights that held of the Honor of Leicester did in the eleventh year of the Reign of King John give as an oblation two Palfreys to the King that the Cause might be heard before him wherein he got the better as appeareth by a Fine of 200 Marks the next year after paid into the Exchequer by the said Thomas de Astley pro falso clamore for not proceeding in his Suit or Claim against him For certainly in that great and most prudent Judgment and Justice of Solomon in the Case of the true and false Mother claiming the child when al Israel heard of the judgment which the King had judged and they feared the King for they saw that the wisdom of God was in him to do Judgement that so justly admired piece of Justice was as well and legally done in his House or Chamber as if it had been done by him in the Sanhedrim or any of his Courts of Justice In the evidencing whereof although the Arguments by me used and the Authorities cited may to the more learned and lesser part of the people seem to be too many needless or superfluous yet they may to others appear to be as profitable as necessary to undeceive or antidote all such who having a Magna Charta of their Fancies do metamorphose all they can our better Magna Charta and make their disobedience conveniences or interest the Standard and Rule of their obedience and may be more and more mislead or infected by the Errors of the opinions delivered for Law in the Case before recited of the Prohibitions and to wean them from those dangerous Antimonarchical Doctrines which they had suck'd in the late times of confusion when our Lawes and right Reason attending them and even Truth it self were by an usurped power false authority and â— mechanick and ignorant part of the people lead by a rebellious party persecuted banished or affrighted Wherefore they who do delight to oppose and cavil Regal Authority by gleaning all the objections which they can either frame or hear of and put the Law upon a Rack or Torture to wring and wrest out of it any thing that may help to accommodate their distempered and unruly Fancyes may think they are in the Road and High-way of Wisdom and Applause but will in the end whilst they forget the duty of Subjects to their King and the Commands of God to honour and obey him find themselves to be more than a little deceived and to be far enough out of it and might do better to hasten out of the sinful ways they walked in and the unsafety of the Paths they have trod and travelled in and help to still and put to silence rather than increase and foment those causeless complaints wherewith too many of our Nation surfetting upon happiness do too much affright and afflict themselves and others in their opposing the just priviledges and protection of the Kings Servants And remember that although there are few evils or not to be justified matters of Fact as well as those which have been good and vertuous which have not left some Vestigia records or precedents to after Ages and it hath not been unfitly said that Exempla illustraâ—t non probant that Examples may illustrate but not prove yet the precedents and examples which are founded and built upon Law Right Reason and Truth as these by us alleaged on the part of the Kings Servants have been are to be heeded and harkened unto and the contrary rejected That the instances and examples brought by me out of the Civil and Cesarean Laws ought to oblige as they do with many other Nations propter aequitatem in regard of the Equity and reasonableness thereof and more especially when ex jure gentium naturali ratione by the Law of Nations and Nature they are in the particulars by me endeavoured here to be asserted not only by them but our Common Laws and reasonable Customs of England to be justified and maintained And that it is and should be the Interest of all the good people of England to preserve the Honor of the King and that the Bonds of gratitude in a return of what they have in their Liberties and Priviledges received of him and his Royal Progenitors should perswade them not to deny unto him those just Rights which by Law do belong unto Him and his Servants CHAP. XXI That a care of the Honor and Reverence due unto the King hath been accompted and is and ought to be the Interest of all the People of England and that the Servants and retinue of a Soveraign Prinee who hath given and permitted to his Subjects so many large Liberties Immunities Exemptions and Priviledges should not want those Exemptions Immunities Customs and Priviledges which are so justly claimed by them FOR every man who hath not bound himself more than as an Apprentice to a Spirit or Custom of contradiction of Authority and made himself a slave to wickedness and a Companion of those that speak evil of Dignities may confess that it is and should be every mans Interest to observe the fifth Commandement of God in that Sacred and dreadfully pronounced Decalogue to Honor and reverence the King and common Parent and that St. Peter hath so conjoyned the Fear of God and Honor of the King as that the one cannot be without the other and it is obvious to every mans understanding that where there is Honor there seldome wants obedience and where there is an obedience Honor most commonly doth bear it Company so that if the Law of God Nature and Nations and the municipal Laws and Customs of all the Countreys Kingdoms and Common-Wealths of the World where Reason hath got any admittance have submitted unto and acknowledged a Majesty and more especial Honor to be due unto their Supreme and Soveraign si Majestas quasi major status dicitur quis non fatebitur majorem statum esse Regis in suo regno and if Majesty is so called in regard of a greater State and Degree who will not acknowledge that a King is greater than any in his Kingdome certae sunt saith Besoldus affectiones quae superioritatem concomitantur sine quibus