with the Duty and Respects never to be denied to Superiority in order more especially to Government being as well to be allowed unto our Kings and Princes and consistent with right Reason as it was in the more ancient times of the Empire or Rome when the Magister Officiorum or Steward of the Emperors House or Palace cui totius Palatii cura pertinuit to whom the whole care of their Houshold did appertain apud quem tam in Civilibus quà m Criminalibus causis respondere tenentur and before whom all the Servants of the Houshold were obliged to answer as well in Causes Civil as Criminal could do no less then incite and advise them so watchfully to guard the necessary and allowed Priveledges of their Servants warranted by the dictates of right Reason and our own Laws as well as the Laws and Customs of many of our neighbour Nations And therefore by an Act of Parliament in the second year of the Reign of King Richard the second confirmed by another in the twelfth it was ordained That those that raised horrible and false lies against the Prelates Dukes Earls Barons great Nobility and great Men of the Realm as also of the Chancellor Treasurer Clerks of the Privy Seal Stewards of the Kings House being the more special and eminent part of his Domestick Servants and those that did attend him and in ancient and more respectful Times and Ages to the Servants and Honour of Princes did wear no less a Title than Proceres Palatii Lords or Men of great eminency in the Palaces of Kings and Emperors Justices of the one Bench or the other and other great Officers of the Realm whereby debates and discords might arise betwixt the said Lords or the Lords and Commons should be taken and imprisoned until they had found him that first moved it and if they could not should be punished by the advice of the Kings Council And in the ninth year of his Reign John de Leicester one of the Clerks of the Chancery being sued in the Court of Common Pleas by the name of John de Sleford of the County of Leicester for a Debt of 24 l. 16 s. and after his Writ of Priviledge out of the Chancery which commanded the Justices of the said Court of Common Pleas to surcease any further proceeding in that Action being constrained to bring his Writ of Error to reverse a Judgment thereupon notwithstanding had against him the King pro eo quòd principale placitum loquelae praedictae ad cognitionem Cancellarii nostri nullius alterius juxta consuetudinem Cancellariae merè pertinet ex consequenti ejus accessarium ad eundem Cancellarium pertinere debet volentes Jurisdictionem Privilegium Consuetudinem hujusmodi à tam longo tempore obtenta approbata Illaesa firmiter observare in regard that the principal Plea or Suit aforesaid belonged only to the cognisance of his Chancellor and none other according to the custom of the Chancery and that by consequence the cognisance of the Accessary or any thing concerning the said principal Plea or Suit belonged to the Chancellors determination and was willing to preserve the said Jurisdiction Custom and Priviledge for so long a time continued and approved commanded the Record and Process aforesaid with all which thereunto appertained to be sent and certified into the Chancery that he might do thereupon as to Justice appertaineth In the 35 year of the Reign of King Henry the sixth the Abbot of Westminster having an Action depending in the Court of Common Pleas against one of the Yeomen of the Kings Buttery and an Essoin being cast and allowed that he was in the Kings Service the King at the day appointed and given by the Essoin sent his Writ of Privy Seal to the Justices of that Court to signifie that the Defendant was in his Service before the day given by the Essoin and at the same day and every time sithence By a Statute made in the third year of the Reign of King Henry the seventh it was declared to be Felony for making Confederacies though not brought to effect or not so far as to an overt act our Laws declaring that affectus non punitur thoughts and intentions only are not to be punished to imagine the death of the King or of any Lord of this Realm or any other person sworn to the Kings Council Steward Treasurer or Comptroller of the Kings House by any of the Kings Houshold Servants and ordained That such Offences should be inquired by 12 sad men of the Cheque Roll of the Kings Houshold and determined before the Steward Treasurer and Comptroller or any two of them Which may evidence the intention of that King and his greater Council the Parliament to submit as little as might be such Offences of his Menial Servants unto the Judgment and Determinations of his Court of Kings Bench which otherwise was the most proper Court and means for the Trial thereof In the Reign of King Henry the eighth George Ferrers Gentleman his Servant and a Member of the House of Commons in Parliament being arrested and taken in Execution and Sir Thomas Moyle Knight then Speaker of the House of Commons and the Knights and Burgesses in Parliament assembled sending the Serjeant at Arms attending upon them to the Compter in Breadstreet in London where the said George Ferrers was detained a Prisoner to demand him the Officers of the City and others assaulted and grievously misused him of which a Complaint being made to the King he called before him all the Judges of the Kingdom declared unto them That he being Head of the Parliament and attending in his own Person upon the business thereof ought in reason to have Priviledge for him and all his Servants attending there upon him so as if Mr. Ferrers had been no Burgess or Member of Parliament but only his Servant that in respect thereof he was to have a Priviledge as well as any other To which all the Judges declaring their assent by Sir Edward Mountague Knight Lord Chief Justice of the Court of Kings Bench the Grandfather of the now Earl of Manchester Lord Chamberlain of the Kings Houshold an Order was made to fine the Sheriffs of London punish the Riotors and deliver Mr. Ferrers out of Prison but in compassion of the Creditor an Order was made that he should not lose his Money for which he had taken him in Execution And so great a regard was in that Kings Reign had of the Gentlemen of his Privy Chamber as that great and imperious Favorite Cardinal Wolsey Archbishop of York being at Cawood Castle in Yorkshire arrested by the Kings command by the Earl of Northumberland attended by Mr. Welch one of the Gentlemen of the Kings Privy Chamber of High Treason and being unwilling to obey the Earls Authority unless he would shew the Kings Commission for it which the Earl refused to do the Contest at the last
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.
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
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
Bracton will not allow the priviledge where it is ex voluntaria causa when the party that would excuse his absence was voluntarily absent and not in the Kings service or will of his own accord without the Kings command go along with his Army yet he cannot but say that talibus non subvenit dominus nisi de gratia unto such the King would not be aiding unless he should be otherwise gratiously pleased to do it By an Act of Parliament made in the 52 year of the Raign of our King Henry the third all Archbishops Bishops Abbots Priors Earls Barons and religious men and women except that their appearance be specially required for some other Causes are excused from appearing at the Sheriffs Turn Sir Edward Cook extending it to the Courts Leete and view of Franck-pledge which with the Sheriffs Turns were instituted for the Conservation of the Kings peace punishment of Nusances and where all men within the Jurisdiction of it might be summoned to take the Oath of Allegiance By an Act of Parliament made in the third year of the Raign of King Edward the first providing a remedy where an Officer of the Kings which by common intendment were then understood to be the Sheriffs Escheators or Bayliffs of the King not his menial Servants doth disseise any It is in that only case left to the Election of the Disseisee or party disseised whether that the King by office shall cause it to be amended which the parties grieved were more likely to choose when besides their just satisfaction they might be a means to punish or affright the Kings Officers so offending with the losse of their gainful as well as not smally reputed Offices or places at his complaint or that he will sue at the Common Law by writ of novel disseisin And by another act of parliament made in the same year enjoyning severe penalties against the Kings Purveyors not paying for what they take and of such as take part of the Kings debts or other rewards of the Kings Creditors to make payment of the same debts and of such as take Horses and Carts more than need a trick wherein Tacitus saith the Roman Cart-takers whilst the Romans governed here were wont to abuse the old Britains and take rewards to dismisse them it was provided that if any of Court so do he shall be grievously punished by the Marshalls and if it be done out of the Court or by one that is not of the Court and be thereof attainted he shall pay treble damages and shall remain in the Kings prison forty dayes by which it is evident that the intention of that Act of Parliament was not to deliver any of the Purveyors the Kings Servants in ordinary to any other Tribunals than that of the Marshals or other the Officers of his Houshold Britton who like the Emperor Justinians Tribonianus in compiling or putting together the pieces of the Civil Laws did by Command of that wise and Valiant Prince King Edward the first in the fifth year of his Raign write his book in the name of that King concerning divers Pleas Process and proceedings in the Kings Courts saith in the Person of that King and French of those times Countes et Barons Dedans nostre verge the Kings Palace or 12 miles round about trovesnequedent estre destreint that Earls Barons found within the virge should not be attached or distrained as ordinary men which were Debtors Et nos Serjeans or Servants de nostre hostel soient avant summons pour dette que destreyntz et attaches par leur cors les uns pour reverence de lour persones et les Autres pour reverence de nostre service of our House shall be summoned for debt before they be destreyned or Attached by their bodies the one in reverence and respect to their persons and the other in reverence to our Service By an Act of Parliament made by that prudent Prince about that time entituled Prohibitio formata de Statuto Articuli Cleri where a prohibition was framed against certain matters which concerned the Clergy and the limitting of their Jurisdiction It was declared thaâ— Proceres et magnates et alii de eodem regno temporibus Regis predecessorâ—m Regum Angliae seu Regis Authoritate alicujus non consueuerunt contra consuetudinem illam super hujusmodi rebus i. e. matters Civil or Temporal except matters of Testaments or Matrimony in causa trahi vel compelli ad comparendum coram quocunquè Judice Ecclesiastico the Noble men and others of the Kingdome in the times of the Kings Predecessors or by Authority of any of the Kings did not use contrary to the said custome in such cases to be compelled to appear before any Ecclesiastical Judg whatsoever In the 18th year of his Raign in an Action brought at the Kings Suit in Banco Regis in the Kings Bench against Robert the Son of William de Glanville and Reginald the Clark of the said William de Glanville for delivering at Norwich a panel and certain of the Kings Writs which the Kings Coroner ought to have Brought the said Reginald demurring for that Dominus Rex motu proprio de hujusmodi Imiuriis privatis personis illatis sectam habere non debet ex quo aliena actio sibi competere non potest unde petit Judicium et si hoc non sufficiat dicet aliud et si actio in hujusmodi caesu Domino Regi posset competere dicit quod hoc deberet esse per breve originale et non de judicio unde petit Judicium the King was not to bring an Action for injuries done to private persons and is not concerned in another mans suit and demanded the judgment of the Court. And if that Plea will not be sufficient will plead somewhat else And if such an Action did belong to the King it ought to have been by Writ Original and not by a Writ Judicial whereof he pray'd the Judgment of the Court but Johannes de Bosco who followed for the King dicit quod quelibet injuria ministris Regiis licet minimis illata vertitur in dedecus ipsius Regis Et licèt hujusmodi minister Justitiam assequi de injur sibi illat contempsit tamen cum hujusmodi Injuria ministris Regis illata ipsi Regi fuit ostensa competit sibi actio ad amend consequend de contemptu pleaded that every wrong or injury done to the Kings Servants though it be unto the least is a disparagement to the King And if such a Servant will not take care to prosecute such an injury yet when the King shall be informed thereof he is concerned to punish the Contempt and vouched a late President for it in a Case betwixt Robert of Benhale and Robert Baygnar and others in a Writ of wast and prayed Judgment for the King In the same year John de Waleis complaining against Bogo de Clare for that some of
Liberties did commit to Prison one that had Arrested one of Her Servants without leave and the Creditor being shortly after upon his Petition released by the said Earl who blaming him for his contempt and misdemeanor therein and being answered by the Creditor that if he had known so much before hand he would have prevented it for that he would never have trusted any of the Queens Servants was so just as to inforce that Servant of the Queens to pay him presently or in a short time after the said debt And told him that if he did not thereafter take a better care to pay his Debts he would undo all the other of the Queens Servants for that no man would trust them but they would be constrained to pay ready money for every thing which they should have occasion to buy In the six and twentieth year of Her Reign Henry Seâ—kford Esq one of the Grooms of Her Majesties Privy Chamber being Complainant against William Cowper Defendant the Defendant was in open Court upon his Allegiance enjoyned to attend the said Court from day to day until he be otherwise Licenced and to stay and Surcease and no further prosecute or proceed against the Complainant in any Action at and by the Order of the Common Law And about the Seven and twentieth year of Her Reign some controversies arising betwixt the Lord Mayor and Citizens of London and Sir Owen Hopton Knight Lieutenant of the Tower of London concerning some Liberties and Priviledges claimed by the Lieutenant and his refusal of Writs of Habeas Corpora and that and other matters in difference betwixt them being by Sir Thomas Bromley Knight Lord Chancellor of England the Earl of Leicester and other the Lords of the Council referred unto the consideration of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and Sir Gilbert Gerrard Knight Master of the Rolls they did upon hearing of both parties and their allegations Certifie under their hands that as concerning such Liberties which the Lieutenant of the Tower claimeth to have been used for the Officers and Attendants in the Tower some of them being of the Queens Yeomen of the Guard and wearing Her Livery Coates and Badges as they do now the Kings as not to be Arrested by any Action in the City of London and Protections to be granted unto them by the Lieutenant and his not obeying of Writs of Habeas Corpus They were of opinion that such Persons as are dayly Attendant in the Tower of London Serving Her Majesty there are to be Priviledged and not to be Arrested upon any plaint in London But for Writs of Execution or Capias Vtlagatum's which the Law did not permit without leave first asked the latter of which by the Writ it self brings an Authority in the Tenor and purport of it to enter into any Liberties but not specifying whether they intended any more than Capias Vtlegátum when it was only after judgement or such like they did think they ought to have no priviledge which the Lords of the Council did by an Order under their hands as rules and determinations to be at all Times after observed Ratifie and Confirm And our Learned King James well understanding how much the Weal Publick did Consist in the good Rules of Policy and Government and the support not only of His own Honor and just Authority but of the respects due unto his great Officers of State and such as were by him imployed therein did for the quieting of certain controversies concerning Precedence betwixt the younger Sons of Viscounts and Barons and the Baronets and others by an Ordinance or Declaration under the Great Seal of England In the tenth year of His Reign Decree and Ordain That the Knights of the Most Noble Order of the Garter the Privy Councellors of His Majestie His Heires and Successors the Master of the Court of Wards and Liveries the Chancellor and under Treasurer of the Exchequer Chancellor of the Dutchy of Lancaster the Chief Justice of the Court commonly called the Kings Bench the Master of the Rolls the Chief Justice of the Court of Common Pleas the Chief Baron of the Exchequer and all other the Judges and Barons of the degree of the Coife of the said Courts Now and for the Time being shall by reason of such their Honourable Order and Imployment have Place and Precedence in all Places and upon all occasions before the younger Sons of Viscounts and Barons and before all Baronets any Custom Vse Ordinance or other thing to the Contrary Notwithstanding In the four and thirtieth year of Her Reign Sir Christopher Wray Knight Lord Chief Justice of Her Court of Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and the rest of the Judges of the aforesaid Courts seeming to be greatly troubled that divers Persons having been at several Times committed without good cause shewed and that such Persons having been by the Courts of Queens Bench and Common Pleas discharged of their Imprisonments a Commandment was by certain great Men and Lords procured from the Queen to the Judges that they should not do the like thereafter all the said Judges together with the Barons of the Exchequer did under their hands Exhibit unto the Lord Chancellor and the Lord Burghley Lord Treasurer of England their Complaint or Remonstrance in these words viz. We Her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some Order may be taken that her Highness Subjects may not be Committed or detained in Prison by Commandment of any Noble Man or Counsellor against the Laws of the Realm either else to help us to have access unto her Majesty to the end to become Suitors unto Her for the same For divers have been imprisoned for Suing Ordinary Actions and Suits at the Common Law until they have been constrained to leave the same against their Wills and put the same to Order albeit Judgement and Execution have been had therein to their great losses and griefs For the aid of which persons her Majesties Writs have sundry Times been directed to sundry Persons having the custody of such Persons unlawfully Imprisoned upon which Writs no good or Lawful cause of Imprisonment hath been returned or Certified Whereupon according to the Laws they have been discharged of their Imprisonment some of which Persons so delivered have been again Committed to Prison in secret places and not to any Common or Ordinary Prison or Lawful Officer or Sheriff or other Lawfully Authorised to have or keep a Goal So that upon Complaint made for their delivery The Queens Courts cannot tell to whom to Direct Her Majesties Writs And by this means Justice cannot be done And moreover divers Officers and Serjeants of London have been many Times Committed to Prison for Lawful Executing of Her Majesties Writs Sued forth
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
subjectionem Reverence and subjection and being then unarmed and his sword ungirt denoteth that he is never to be armed against or opposite to his Lord which by prosecuting or arresting any of his servants without leave he may well be deemed to do and in that faedere perpetuo as to them eternal league betwixt him and his Lord is not saith Bracton propter obligationem homagii by the obligation of his homage to do any thing quod vertatur domino ad exhaeredationem vel aliam atrocem injuriam which may turn to the disheriting of his Lord or other great injury which a sawcy and unmannerly arrest and haling of his servants to prison without licence first obtained hindring thereby his dayly and special service wherein his health safety and honor may be more than a little concerned endangered or prejudiced must needs by understood to be which if he shall do justum erit judicium quod amittat tenementum it will be just that he should lose his Land and our Writ of Cessavit per 〈◊〉 by which the Tenant if he perform not his services to his Lord within two years shall have his Land recovered against him redeemable only by paying the arrears of rents if any and undertaking to perform his services better for the future bespeaks the same punishment a certain conclusion will therfore follow upon these premisses that all such as did before the conversion of Tenures in socage hold the King their Lands immediately in Capite and by Knights service ought not to sue or molest any of his servants without license and although that inseparable Incident of the Crown and most Antient and noble Tenure of Chivalry and military service is now as much as an Act of Parliament can do it turned to the Plow or socage Tenure yet the fealty which is saith Sir Edward Coke included in every doing of homage which being done to a mesne Lord is always to have a Salva fide saving of the Tenants faith and duty to the King his heirs and Successors doth or should put all that are now so willing to hold by that tenure and to leave their Children and Estates to the greedy and uncharitable designs of Father-in-Laws under the conditions and obligations of fealty in mind or remembrance that by the fealty which they do or should swear unto the King and the oath of Allegiance which containeth all the Essential parts of homage and fealty which are not abrogated by that Act of Parliament for alteration of the Tenures in Capite and by Knights service into free common socage and the Oath of Supremacy to maintain and defend the Kings Rights Praeheminences and Jurisdictions cannot allow them that undutifull and unmannerly way of Arresting Molesting or Imprisoning any of the Kings Servants without leave or licence first had and that a Copyholder in Socage forfeits his Lands if he speak unreverent words of his Lord in the Court holden for the Mannor or goeth to any other Court wherely to intitle the Lord thereof to his Copyhold or doth replevin his Goods or Cattel upon a Distress taken by the Lord for his Rent or Service or refuse to be sworn of the Homage which in Copyhold Estates is not taken away by the Act of Parliament of 12 Car. Regis Secundi for the taking away of Homage upon Tenures in Capite and by Knights Service And where a Copyhold Tenant against whom a Recovery is bad cannot have a Writ of false Judgement he hath no other remedy but to petition the Lord to Reverse the Judgement nor can have an Assise against his Lord but may be amerced if he use contemptible words in the Court of the Mannor to a Jury or without just cause refuse to be of it that all the Lands of England are held immediately or mediately of the King that every Freeman of London besides the Oaths of Allegiâ—nce and Supremacy takes a particular Oath when he is made Free to be good true and obeysant to the King his Heirs and Successors and doth enjoy all the Liberties and Freedome of the City Trade and Companies by and under them And that they and all other Subjects his astricti Legibus which are under such Obligations cannot by their Homage Fealty Tenure of their Lands natural Ligiance under which they were born and Oaths of Allegiance and Supremacy without violation of them and the hazard of their dreadfull consequences incroach upon those just and rational Rights and Priviledges of the Kings Servants confirmed by as many Acts of Parliament as our excellent Magna Charta of England hath been at several times after the making thereof at the granting of which King Henry the 3 d. took such care of his own Rights and Priviledges as by his Writ of Proclamation to the Sheriff of York wherein mention being made that he had granted to the people the Liberties mentioned in the Magna Charta which he would have to be observed he commanded him nevertheless that all his own Liberties and priviledges which were not specially mentioned and granted away in that Charter should be specially observed as they were used and accustomed in the times of his Auncestors and especially in the Raign of his Father King John For our allegiance due to the King being vinculâ—m arâ—tius a more strict tye betwixt the King and his Subjects ingaging the Soveraign to the Protection and just Government of his people and they unto a due Obedience and Subjection unto him by which saith the Custumary of Normandie â—i tenentur contra omnes homines qui mori possunt vivere proprii corporis praebere consilium adjuvamentum ei se in omnibus Innocuos exhibere nec ei adversantium partem in aliquo fovere to give him councel and aid against all men living and dying to behave themselves well towards him nor to take any ones part against him will leave such infringers of his Royal Rights and Piviledges inexcusable for the dishonour done unto him by Arresting Molesting or Imprisoning his Servants upon any Actions or Suit without leave or licence and at the same time when many of them do enjoy the Priviledges of HAMSOCNE a word and priviledge in use and practice amongst our Auncestors the Saxons or questioning and punishing of any that shall come into their House Jurisdiction or Territotory by the gifts grants or permission of the King or some of his Royal Progenitors deny or endeavour all they can to enervate the Rights and Liberties of him and his Servants when they may know that he and his Predecessors Kings and Queens of England have and ought to have an Hamsocne Ham in the Saxon Language signifying domus vel habitatio an house or habitation and Socne libertas vel immunitas a liberty immunity or freedom to question and punish any that shall invade the Liberties and Priviledges belonging to his House Palace and Servants vel aliquid aliud faciendum contra
course of Law its Process may inform us that the King hath notwithstanding such a power superintendency of Justice inherent in him over all the Courts of Justice high or low in the Kingdome as upon the Sheriffs retorn quod mandavit Ballivo libertatis that he made his Warrant to the Bayliff of such a Liberty to arrest such a Defendant and that the Bayliff nullam sibi dedit responsionem had made him no retorn nor answer he may thereupon by his Justices cause a Writ to be made to the Sheriff commanding him quod non omittat propter aliquam libertatem Ballivi libertatis c. quin capiat that he do not omit to enter into the said Bayliffs liberty and arrest the Defendant and may also when a Defendant is outlawed cause at the instance of the Plaintiff a Capias Vtlegat Writ to be made to take arrest the utlawed person with a non omittas propter aliquam libertatem power and authority to enter into any Liberty under the name of his Attorney General as an Officer intrusted with the making of the said Writs of Capias Vtlegatum and that Offices either granted by the King for term of Life or in Fee or Fee-Tayle are forfeitable by a Misuser or non user by not executing that part of the Kings Justice committed to the care and trust of the Officers thereof And so necessary was the Kings Supreme Authority heretofore esteemed to be in the execution and administration of Justice as in the Case between the Prior of Durham and the Bishop of Durham in the 34th year of the Reign of King Edward the first where amongst other things an information was brought in the Kings-Bench against the Bishop for that he had imprisoned the Kings Officers or Messengers for bringing Writs into his Liberty to the prejudice as he thought thereof and that the Bishop had said that nullam deliberationem de eisdem faceret sed dixit quod ceteros per ipsos castigaret ne de cetero literas Domini Regis infra Episcopatum suum portarent in Lesionem Episcâ—patus ejusdem he would not release them but would chastise them or any other which hereafter should bring any of the Kings Letters or Writs within his Bishoprick to the prejudice of the Liberties thereof And in the entring up and giving the Judgment upon that Information and Plea saith the Record Quia idem Episcopus cum libertatem praedictam a Corona exeuntem Dependentem habeat per factum Regis in hoc minister Domini Regis est ad ea quae ad Regale pertinent infra eandem libertatem loco ipsius Regis modo debito conservanda exequenda Ita quod omnibus singulis ibidem justitiam exhibere ipsi Regi ut Domino suo mandatis parere debeat prout tenetur licet proficua expletia inde provenientia ad usum proprium per factum praedictum percipiatur in regard that when the Bishop had the liberty aforesaid by the Kings Grant or Charter from the Crown and depending thereupon he is in that as a Servant or Minister of the Kings concerning those things which do belong unto the Kings Regality within the Liberty aforesaid to execute and preserve it in a due manner for and on the behalf of the King so as there he is bound to do Justice to all men and to obey the King and his Commands as his Lord and Soveraign although he do by the Kings Grant or Charter take and receive the profit arising and coming thereby Wherein the Judges and Sages of the Law as in those Ancient Times they did not unfrequently in matters of great concernment have given us the reason of their Judgment in these words Cum potestas Regia per totum Regnum tam infra libertates praedictas quam extra se extendant videtur Curiae toti Consilio Domini Regis quod hujusmodi imprisonamenta facta de hiis qui capti fuerunt occasione quod brevia Domini Regis infra libertatem praedictam tulerint simul cum advocatione acceptatione facti Et etiam dictis quae idem Episcopus dixit de Castigatione illorum qui brevia Regis extunc infra libertatem suam portâ—rent manifeste perpetrata fuerunt when as the power and authority of the King doth extend it self through all the Kingdome as well within Liberties as without it seemed to the Court and all the Kings Counsel that such imprisonments made of those which brought the Kings Writs within the Liberty aforesaid the Bishops justifying and avowing of the Fact and the Words which the Bishop said That he would punish all such as should bring any Writs to be executed in his Liberty were plainly proved Et propterea ad inobedientiam exhaereditationem Coronae ad diminutionem Dominii potestatis Regalis Ideo consideratum est quod idem Episcopus libertatem praedictam cujus occasione temerariam sibi assumpsit audacim praedicta gravamina injurias excessus praedictos perpetrandi dicendi toto tempore suo amittat Cum in eo quo quis deliquit sit de Jure puniendus Et eadem libertas Capiatur in manus Domini Regis Et Nihâ—lominus corpus praedicti Episcopi capiatur Wherefore because it tended to disobedience and a disherison of the Crown and diminution of the Kings Power and Authority It was adjudged that the Bishop for his rash presumption and boldness and for committing the aforesaid wrongs and injuries should forfeit his Liberty aforesaid for that every man is to be punished according to the nature of his offence And it was ordered That the Liberty should be seized and taken into the Kings hands and that the Body of the Bishop notwithstanding should be taken into Custody For the Kings Justice to which his Coronation Oath is annexed is inseparable from his Person so fixed to his Diadem and Regal Authority as it is not to be absolutely or any more then conditionally deputed and intrusted to any other or otherwise then with a reserve of the last Appeal and his Superiority and therefore King Edward the first in some of his Writs Commissions or Precepts saith that he but not his Judges was Deâ—itor Justitiae so a Debtor to Justice as not to deny it to any of his People complaining of the want of it and ad nos pertinet the care thereof belongeth to the King and to that end appointed his high Court of Chancery and his Chancellor or Lord Keeper of the Great Seal of England and required all the Officers Clerks of that Court to take care that pro defectu Justitiae nullus recedat a Cancellaria sine Remedio no man for want of Justice do go away from the Chancery destitute of remedy from whence also lyes an Appeal to the King himself in Parliament and in the Case of Sir William Thorpe Chief Justice of England in the 24th year of the Reign of King Edwardâ— the third being put