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
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
do owe unto the Records of of this Kingdom and our great Seldens Intimacy and familiarity with them by whose learned Labours and Observations we have had the benefit of the disdiscovery and dispelling of many an Error and of the Illustration of many difficult and dark Notions and places in our Laws by which his great insights and inquiries into the English Records and Antiquities and the Seuerest part of the Learning of our Common Laws and the Civil Law and Laws of many Nations he became enabled and was as a learned Forreigner hath justly stiled him a Dictator or mighty man of Learning to giving aid and assistance tanquam de Throno sapientiae to the republick and Posterity of good Letters and Learning his Knowledge therein being so singularly exquisite Surmounting and Supereminent as he was not unfitly said to be decus gloria gentis Anglorum and if Nature could have so long have kept him from the fate of Mortality ought to have survived many Centuries more and have continued his admired Course in Learning untill the period and end of the World for that as Sir John Vaughan Knight now Lord Chief Justice of the Court of Common Pleas his contemporary and most intimate associate in those more severe Recherces and choice pieces of Learning and Antiquities hath since his death bemoaning the loss and want of such a Treasury of Learning not long since well expressed it Debuit cum mundo mori it was too great a loss to the World and after Generations that he should dye before it for although the neglect of Records and Antiquities which might have a greater veneration than this Age is willing to bestow upon it have of late been so much undervalued as to be termed rusty and motheaten and those which do give them their true esteem and value superstitious Porers and Doters upon them So as the laborious Learned and well deserving Antiquarie Mr. William Dugdale was not without Premisses to Warrant his Conclusion when with some regret mixt with facetiousness he said that for any man in these Times to busie himself in the old Records or to spend his Time Candle in the search sifting of Antiquity it would by the little incouragements which have been given unto it amount unto as small a Profit or Purpose as to set up and keep a shop to sell old fashon'd Hose Trunk-Breeches and long wasted Dublets and expect to gain by it To so great a mispris and scorn are those usefull inquiries and Lamps of Learning fallen into when as they do draw out of the pit and devouring Jawes of Time many a pretious and hidden Truth and are not seldome the only rescuers of it and was better respected when old Marculfus Wrote his Formulae's Pancirollus his deperdita and when Brissonius and Pasquier Camden Selden Linden brogius our Learned Sir Henry Spelman and Mr. Dugdale and many other Worthies not here ennumerated made it their Business to discover them and the very Learned Sir Robert Cotton was at so great an Expence of Money and Time to Redeem so many as he did from the Captivity of an everlasting Oblivion which hath taken away and concealed many a Truth from the former Generations this present Age which are to come and to dig in those hidden Mines of incomparable Treasure But when the scorners of this Age shall have surfeited with the villifying of the Wisdom of the former and the Experiences of men and times past which Solomon in the high and not to be valued Price which he did put upon Wisdom and the Incouragement which he gave to the Study and search after the Riches and Treasures thereof would never have advised them unto They or some other after them may learn to forsake that grand piece of resolved folly by what this Nation and the Kingdoms of Ireland and Scotland have so greatly suffered in the late time of Rebellion and Confusion by some of our Lawyers and too many of our Nation not understanding the Rights and Prerogative of the King which the old Records of the Kingdom did and will always abundantly witness and by too many of the Inferior Clergies Ignorance of the Ecclesiastical Histories and Primitive times which did not a little contribute unto it and believe that the greatest disservice which can be done to Princes to endeavour to advance their Prerogative beyond the Laws of the Land right Reason and the necessary and just means of Government and that on the other side they are small Friends or rather great Enemies to the Publick that will go about to perswade the People or entitle them to more Liberties than the Laws well interpreted will allow them that there is a Justice to be done to the King in giving unto him that which belongeth unto him and in not denying his just and Legal Rights as well as a Justice to be done by him in what shall concern his people and their Liberties That there is a Majesty due to Kings and that the Rights of their Courts Palaces and Servants are neither to be neglected or continued And therefore if the Romans those great Champions and Patrons of Libertie were so Jealous and Watchfull in the Preservation of the Honours and respects due unto Magistracy and Superiority as their Consul Fabius would rather for the time forget the Honour due and payable from a Son to his Father of which that Nation were great observers than relinquish any thing of it and commanded by a Lictor or Officer his Aged Father Fabius the Renowned preserver of Rome in a Publick assembly to alight from his Horse and do him the Honour due unto his present Magistracy which the good old man although many of the People did at the present dislike did so much approve as he alighted from his Horse and embracing his Son saidâ— Euge fili sapis qui intelligis quibus imperes quam magnam Magistratum imperes I may give my self an Assurance that your Lordships will with greater reason make it your endeavours not only to preserve the Rights of Majesty but the Rights and Priviledges of those great and Honourable Offices and places which you hold under the King our Soveraign and be as willing as your great and Honourable Predecessors in those Offices were to transmit them to their Successors in no worse condition than they found them Which that it may equally be done in that particular of the Kings Servants just Rights and Priviledges is the only design of the ensuing vindication of them and the Honour and respect due unto our Soveraign and submitted to you Lordships Judgment and Consideration humbly intreating your Lordships to pardon any the Errors or failings therein which in the haste of the Press my desire to keep pace with it when I was crebris intermissionibus aliorum negotiorum incursionibus frequenter interpellatus might easily happen and more especially in an undertaking of that Nature nullius ante trita pede being a Path never before as
the Lord Percy now Earl of Northumberland Mr. Jermyn now Earl of S. Albans and Mr. Henry Piercy in the Privy Gallery or Lodgings with blew Ribbons tyed or hanging about the upper part of their Legs or Boots he was so displeased therewith as he would not be pacified until he had called for a pair of Scissers and had with his own hands cut or clipped them off And well might it be observed in England when the Vltima Thule and our less Civilized Neighbours of Scotland Infected with the Careless and over-bold behaviour of some of their late Presbyterian Clergy towards Royal Majesty are not without those dutyful respects of being bare and uncovered in the Presence Chamber or Chief Rooms of their Kings Palaces although they be absent and out of the Kingdom and when any Acts of Parliament are agreed upon the Kings high Commissioner Presiding in Parliament in his absence bringeth the Acts of Parliament to the Kings Chair of Estate upon which and a Velvet Cushion the Royal Scepter being laid the Lord Commissioner kneeling before it and touching it with the Scepter gives a Sanction and Authority unto those or any other Acts of Parliament in that Submiss and dutyful manner touched therewith and makes them to be of as great Validity as if they had been Ratified by the Royal Signature And with more or a greater Reason might Kings and Free-Princes claim a Veneration to their Palaces or Houses when Bishops Antiently had their Episcopia or Houses so Respected as a Synod or Council thought fit to Order it a too much or more then ordinary respect when they Decreed Suggerendum est ex Divino mandato intimandum Regiae Majestati ut Episcopium quod domus Episcopi appellatur Venerabiliter reverenter introeat c. It is to be declared and intimated to the Kings Majesty that he enter the Episcopium which is the House of the Bishop Reverently And not very long ago in the Raign of that Vertuous King Charles the first an Action of Battery being brought by Sir Francis Wortley Knight and Baronet against Sir Thomas Savile Knight afterwards Lord Savile and Earl of Sussex for assaulting and wounding him at Westminster Hall door one or both of them being then Parliament men the Jury gave a Verdict for Sir Francis Wortley with three thousand pounds Damages the Offence being aggravated to that height in regard that it was done so near or in the Face of the Court of Common Pleas the Judges then sitting which could have no greater or better reason for heigthning that offence then that it was done in that Ancient Palace of our Kings and the Place where the King Administred Justice to His People by His Judges who Represented His Authority in that their limitted Jurisdiction And but lately when sitting the Parliament in the moneth of December 1666 the Lord Saint John of Basing Eldest Son of the Marquess of Winchester being a Member of the House of Commons in Parliament had in Westminster Hall no Court of Justice then and there sitting pulled Sir Andrew Henly Knight by the Nose whereby he according to the opinion of Sir Edward Coke had forfeited his Lands Goods and Chattels although his reason offered for it that the offence was so punishable because it might tend ad impedimentum Justiciae to the hinderance of Justice was not alone sufficient for that it may more truly be understood to be propter venerationem loci for the Reverence and Respect due to the Kings House or Palace was so affrighted with the Penalty and consequence of that Offence as he procured the House of Commons who could not tell how to believe the unhappy heretofore unadvised and never to be proved Doctrine of the pretended Soveraignty of that House to go with their Speaker unto the King at Whitehall and intercede for his Pardon And shortly after at a Conference in the Painted Chamber betwixt the Lords and Commons in Parliament some hot words happening betwixt the Marquess of Dorchester and the Duke of Buckingham who upon the lye given him by the Marquess of Dorchester had pulled him by the Nose or plucked off his Peruque they were both Committed Prisoners to the Tower of London and within two days after upon their submission to the House of Peers Released but the Duke of Buckingham coming after to the Kings Court at Whitehall before he had asked leave of Him or His Pardon the King did forbid him the Court alleadging that howsoever the House of Peers in Parliament had pardoned him for the Offence Committed against them yet he had not forgiven him the Offence which he had Committed against him And in support of those Observations and honors so justly due unto the Place of His Royal Residences the Lord Chamberlain did lately cause a Constable to be Imprisoned for an Ignorant and Indiscreet pursuit of a French Lacquaie who had slain an Irish Foot-boy into Whitehal and as far as the Royal Lodgings of the Queen where he took him and shortly after deservedly Imprisoned one Mr. White a Merchant for bringing two of the Kings Marshals-men into the Privy-galleries and neer the Council-chamber-door the King sitting in Council bade them Arrest an Agent or Envoy of the Duke of Curlands and he would Indempnifie them Who were notwithstanding severely punished Which just and fitting observations due unto the Mansions of Kings and Princes Cromwel that Leader and Conductor of the Rable and Scumme of a Rebellious part of the people and grand contemner of all Authority but what himself had usurped and of all Ancient Orders Rites Customs and Usages did not think to be unbecoming that Eagles nest into which He and His devouring Harpyes had crept and the House wherein the Kings Honour lately dwelt when he Committed Sir Richard Ingoldsby then one of his Colonels but afterwards a Penitent and Loyal Subject of His Majesty that now is Prisoner to the Tower of London for striking one in the Stone-gallery at Whitehall And so unquestionable was a more then Common or Ordinary Honour and Respect to be given to the Houses and Courts of our Kings as some of our Ancient Nobility have by that honour which our Kings did Originally confer upon their Persons in the Grant of Earldoms and Honours gained by an Usage of Time and Custom some more then Common Priviledges to their Chief Houses Castles and Lands anciently belonging to their Earldoms So as their Lands belonging to their Earldoms have been exempted from the Contribution of the Wages of Knights of the Shire elected to be Parliament men and their Houses from any Search by any Constable or Ordinary Officer and in all or many of the Records or Memorials of the Kingdom have been frequently called or termed Honours as the Honours of Oxford Arundel Lincoln Leicester c. for the Lands belonging to those Earldoms and there is to this day a Custome at Arundel Castle that none but the Earl thereof the Soveraign and Heir apparent exempted
now and for many ages past allowed and gave the reason of it multis sane respectus esse debet ac multa diligentia ne quis pacem Regis infringat maxime in ejus vicinia for that there ought to be a more than ordinary respect had thereunto and much diligence used that none should break the Kings peace more especially so near his House which must of necessity and by all the rules of Reason and Interpretation of Laws and the meaning of the Law-giver be only understood to referre unto the peace and quiet of his own House and Servants and not unto the Kings care of the publique and universal peace of the Kingdome which was not be streightned or pend up in so narrow a room or compass when as many of his other Laws did at the same time provide for the universal peace and this only aimed at the particular peace and tranquillity of himself and his Family Nor can it appear to have been any intention of that foresighted and considerate Prince that any Sheriffes or Bayliffs should upon all occasions false or malitious or trivial suggestions presume to Arrest and hale from his Palace or Service any of the necessary Attendants upon his Person Majesty and Honour or be the sawcy and irreverent Infringers of their peace which by that Law Intituled De pace Curiae Regis the peace of the Kings Court or Palace he took so great a care to preserve At the Parliament of Clarindon holden by King Henry the Second in Anno Dom. 1164. When that Prince's troublesome Raign was afflicted with the Rebellion of his Sons and Domineering of a Powerful Clergy backt by the Papal power and Insolency it was not thought to be either unreasonable or illegal when Excommunications which the lofty Clergy of those times were not willing to have clipped or limited and the Thunderbolts fear or fury thereof did farre exceed any effect or consequence of an utlary to ordain That Nec aliquis Dominicorum Ministrorum Regis excommunicetur nec terrae alicujus eorum sub Interdicto ponantur nisi prius Dominus Rex si in terra fuerit Conveniatur That none of the Kings Servants or Officers be excommunicated or their Lands interdicted untill the King if he be in the Kingdome be first Attended And the reason of this Law was saith Sir Edward Cook for that the Tenures by grand Serjeanty and Knights service in Capite were for the Honour and defence of the Realm and concerning those that served the King in his Houshold their continual Service and attendance of the King was necessary And Glanvil who was Lord Chief Justice of England and wrote in the Raign of King Henry the second or of King Richard the first of the antient Laws and Customs of England if that Book as some have thought were not written rather in his name then by him howsoever it is ancient and allowed both here and in Scotland to be very Authentick saith that Per servitium Domini Regis rationâ—biliter essoniare potest et cum in Curia probatur hoc essonium et admittitur remanebit loquela sine die donec constiterit â—um ab illo servitio domini Regis rediisse Vnde hi qui assidue sunt in servitio Domini Regis Cui necessitates omnes forenses cedunt to which all other businesses or occasions saith the Learned Spelman in his gloss upon Essoines are to give place ut Servientes ipsius hoc Essonio non gaudebunt Ergo circa eorum personas observabitur solitus cursus Curiae et Juris ordo That a Defendant or Tenant being in the service of the King may rationally be essoyned or for that time be excused and when the Essoyne or excuse is proved in Court and admitted the Action or plea shall be without day and suspended untill it shall happen that he be retorned out of the Kings Service but those that be in the Kings daily Service as his ordinary Servants are not to be allowed such an Essoyne or excuse therefore as to their persons the accustomed course of the Court and order of Law is to be observed but doth not declare what that solitus Curfus Curiae et juris ordo that accustomed course and order of Law in case of the Kings Servants in ordinary then was Or whether their priviledge was not so great and notorious as not to need any Essoine Yet as the Law then was saith that where sometimes both the Plaintiffe and the Defendant did not appear but made default tunc in Domini Regis voluntate vel ejus Justitiariorum erit si voluerint versus utrumque contemptum Curiae vel falsum clamorem prosequi then it shall be in the good pleasure of the King or his Judges if they will prosecute either against the Defendant for his Contempt or against the Plantiffe for his not Prosecution By which again the King was at his liberty to protect or priviledge his Servant in ordinary if the Law had not allowed them any such priviledge as well as to grant his Writ directed to the Judges ad warrantizandum to allow or receive an Essoine for one that was in servitio Regis in his Service recited by Glanvil with an Ideo vobis mando quod pro absentia sua illius diei non ponatis in defaltam nec in aliquo sit perdens therefore I command our Kings not then in their mandates writs or Patents speaking in the plural number as we and us c. You that you enter not a default against the Defendant or Tenant for his absence or not appearing at the day appointed and that he be not damnified thereby And in that Kings Raign and the beginning of the Raign of King Richard the first whilst Chief Justice Glanvil attending his Court and Justice his Warrs in the Holy Land died at Acon and in all those foregoing times and ages it was not probable that any Inroads should be made upon that antient just and rational priviledge of the Kings Domestiques or other Servants in ordinary for that some of the Stewards and great Officers of the Kings most honourable Houshold who had under their several Kings the protection as well as Government of the Servants in ordinary of the Royal Family as Prince Henry the eldest Son of King Henry the second and William Longchampe in the first year of the Raign of King Richard the first Lord Chancellour of England were whilst they held their several other places in the Kings Courts successively Lord Chief Justices of England and attended in the Kings Court. And it appeareth by Glanvil that Actions or Summons or Attachments of Debt and other process were then not infrequently directed to the Sheriffe of the County where the Defendant dwelt made retornable coram me i.e. Domino Rege vel Justitiis meis i.e. Justitiis suis before the King or his Justices in the abstract apud Westmonasterium at Westminster i.e. The Kings House or
against the Legality of this Court in the Reigns of King Henry the seventh Henry the eighth Edward the sixth Queen Mary and Queen Elizabeth or since although Sir Edward Coke being unwilling to allow it to be a Court legally constituted as not founded by any Prescription or Act of Parliament hath thrown it under some scruples or objections with which the former Ages and Wisemen of this Nation thought not fit to trouble their Times and Studies that Court being not only sometimes imployed in the determining of Cases and Controversies irremedial in the delegated Courts of Justice out of the Palace Royal or by the Privy Council but concerning the Kings Domesticks or Servants in Ordinary as may be seen in the 33 year of the Reign of K. Henry the eighth in the Case of David Sissel of Witham in the County of Lincoln Plaintiff against Richard Sissel his Brother Yeoman of the Kings Robes for certain Lands lying in Stamford in the said County of Lincoln formerly dismissed by the Kings most Honourable Privy Council wherein the said David Sissel was enjoyned upon pain of Imprisonment to forbear any clamour further to be made to the Kings Grace touching the Premises In the second and third years of King Philip and Queen Mary Sir John Browne Knight one of the two Principal Secretaries to the King and Queens Majesties was a Plaintiff in that Court and in the thirteenth year of the Reign of Queen Elizabeth Sir James Crofts Knight Comptroller of the Queens Majesties Houshold against Alexander Scoffeild for Writings and Evidences in the Defendants Custody And those great assistants Lords and Bishops Commissionated by the King as his Council or Commissioners did sometimes in that Court as in the thirtieth year of the Reign of King Henry the eighth superintend some Causes appealed aswell from the Lord Privy Seal as the Common Law and Sir John Russel Knight Lord Russel the same man or his Father being in an Act of Parliament in the thirteenth year of the Reign of King Edward the Fourth wherein he with the Archbishop of Canterbury and others were made Feoffees of certain Lands to the use and for performance of the Kings last Will and Testament stiled Master John Russel his Majesties Keeper of the Privy Seal was in that Court made a Defendant in the first year of the Reign of King Edward the sixth to a Suit Petition or Bill there depending against him although he was at that time also that Great and Ancient Officer of State called the Lord Privy Seal there having been a Custos Privati Sigilli a Keeper of the Privy Seal as early as the later end of King Edward the first or King Edward the second or the beginning of the Reign of King Edward the third about which time Fleta wrote nor was it then mentioned as any Novelty or new Office the Lord Privy Seal or Keepers of the Kings Privy Seal having ever since the eighteenth year of the Reign of King Henry the seventh if not long before until that fatal Rebellion in the later end of the Reign of that incomparable and pious Prince King Charles the Martyr successively presided and been Chief Judges in that Court which was not understood to be illegal in the twentieth year of the Reign of Queen Elizabeth when in a Case wherein George Ashby Esq was Complainant against William Rolfe Defendant an Injunction being awarded against the Defendant not to prosecute or proceed any further at the Common Law and disobeyed by the procurement of the said William Rolfe it was ordered That Francis Whitney Esq Serjeant at Arms should apprehend and arrest all and every person which should be found to prosecute the said Defendant contrary to the said Injunction and commit them to the safe custody of the Warden of the Fleet there to remain until order be taken for their delivery by her Majesties Council of that Court by Authority whereof the said William Rolfe was apprehended and committed to the Fleet for his Contempts but afterwards in further contempt the said William Rolfe's Attorney at the Common Law prosecuting a Nisi prius before Sir Christopher Wray then Lord Chief Justice of the Queens Bench against the Complainant in Guildhall London the said Attorney was then und there presently taken out of the said Court by the said Serjeant at Arms and committed to the Fleet. Nor by Sir Henry Mountà gue Knight Earl of Manchester who being the Son of a Lord Chief Justice of the Kings Bench was in Legibus Angliae enutritus in praxi legum versatissimus a great and well-experienced Lawyer and from his Labour and Care therein ascended to the Honour and Degree of Lord Chief Justice of the Kings Bench from thence to that of Lord Treasurer of England thence to be Lord President of the Kings most Honourable Privy Council and from thence to be Lord Privy Seal and for many years after sitting as Supreme Judge and Director of the Court of Requests in the Reign of King James and King Charles the Martyr together with the four Masters of Requests his Assessors and Assistants in that Honourable and necessary Court Which Office or Place à Libellis Principis of Master of Requests having been long ago in use in the Roman Empire and those that were honoured therewith with maximorum culmine dignitatum digni men accounted worthy of the most honourable nnd eminent Imployments and that Office or Place so highly esteemed as that great and ever famous Lawyer Papinian who was stiled Juris Asylum the Sanctuary or Refuge of the Law did under the Emperor Severus enjoy the said Office to whom his Scholar or Disciple Vlpian afterwards succeeded and with our Neighbours the French summo in honore sunt are very greatly honoured quibus ab Aulâ Principis abesse non licet and so necessary as not at any time to be absent from the Court or Palace of the Prince The Masters of Requests are and have been with us so much regarded and honoured as in all Assemblies and Places they precede the Kings Learned Council at Law and take place of them and amongst other Immunities and Priviledges due unto them and to the Kings Servants are not to be enforced to undergo or take upon them any other inferior Offices or Places in the Commonwealth There being certainly as much if not a greater Reason that the King should have a Court of Requests or Equity and Conscience where any of his Servants or Petitioners are concerned as the Lord Mayor of London who is but the Kings Subordinate Governour of that City for a year should have a Court of Conscience or Requests in the City of London for his Servants or the Freemen and Citizens thereof The Rights and Conveniences of our Kings of England doing Justice to their Domestick or Houshold Servants within their Royal Palaces or Houses or the virge thereof and not remitting them to other Judicatures together
of 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
Kings Attorney and Sollicitor general and Serjeants at Law except the two Puisneys of the Kings Serjeants at Law have not only precedency before other Lawyers and men of the long Robe not Judges or Masâ—ers of Requests the later of which if but extraordinary and Advocates or Lawyers debet alios Advocatos precedere but with the Kings other Councel of Law extraordinary and the Queens and Princes or heir apparants Attorney and Sollicitor general are in their Pleadings allowed to sit within the Bars of the Chancery Courts of Justice beneath the L. Chancellor L. Keeper or Judges and are to have a prae-audience before any other Lawyers by the custome of England drawn and derived from that of the Civil Law the superintending reason of many of our Neighbour Nations which ordaineth that Advocatus Fisci the Kings Attorney general being first instituted by the Emperor Adrian praeâ—dit quoscunque advocatos etiam eo antiquiores quoniam major est autoritate is to precede and take place of all other Advocates although they be his Antients for that he is greater in authority post advocatum fisci sedere debet in foro procurator Fisci etiam ante omnes alios advocatos simplices non habentes aliam dignitatem cum Procurator Fisci etiam advocatus dici potest and next to him in the Court ought the Kings Solicitor general to sit before any other Advocates having no other dignity when as the Kings Solicitor general may in some sort be said to be the Kings Attorney general and the kings Attorneys and Sollicitors general are stiled Spectabiles a title betwixt that of Illustris antiently given to Emperors Kings and Princes and that of Clarissimus given to Senators tale officium confert dignitatem est nobile ossicium and such an Office conferreth or makes a dignity and is a noble Office and many of the Kings Maenial or Domestick Servants which are under the ranks and titles of Nobility and were not theeldest Sons of Knights are as our learned judicious Sir Henry Spelman hath observed meerly and only by their serving the King said to be Esquires or Gentlemen and Trades-men serving their Prince or the kings Sadler the kings Grocer and the kings Haberdasher the kings Lock-smith c. may by their offices or places stile themselves Gentlemen for although by the Civil Law vaenalitia seu usus vilis artificii ipso facto nobilitatem amittat a Trade consisting of buying and selling or handicraâ— doth in the very act not allow them to be Gentlemen yet Principum artifices nobiles sunt the Workmen of Princes are as it were Nobles the comprehensive term of Gentry quia omnes in dignitate positi for they have a kind of dignity belonging officiariis principum to the servants or Officers of Princes It being adjudged in the Court of Common Pleas in the 14 th year of the Raign of King Henry the 6 that the Serjeant of the Kings Kitchin or any other servant of the King in any other Office in his house is a Gentleman and it was then said by Juin the Chief Justice that those of the Kings house would be grieved if they shoul be otherwise named and it was by Newton one of the Judges of that Court then declared that Gentleman or Esquire is a name of worship that of Esquire being as antient in the Courts of our kings as the time of king Alfred who by his last will and testament recorded by Asser Menevenses gave Legacies Armigeris suis to his Esquires that Title being formerly so uncommunicable to the Vulgar as the eldest sons of Dukes and Barons have not believed themselves to be disgraced by it and in France as late as the raign of their King Francis the first who was contemporary with our king Henry the 8 th a valet de Chambre to the king was appellatio honorifica an honourable title and the French kings Karvers were no longer agoe than in the reign of our Queen Elizabeth stiled Armigeri Esquires and was not heretofore so apt to be mis-used as it is now when too many of our Barristers or Apprentices at Law do so much mistake themselves as to dream that a Tayler Tanner Butcher Victualler or Yeomans Son though nothing of kin to a Gentleman is ipso facto an Esquire when he is called to the Bar in an Inns of Court or being an Officer in a Court of Justice and admitted into an Inns of Court heretofore only destinate and appropriate to the Sons of Nobility or real not self made or created Gentry as the learned Sir John Fortescue Chief Justice and believed to be afterwards Chancellor of England under our King Henry the 6 th hath rightly observed with whom Sir John Ferne a learned Antiquary and Lawyer who lived in the later end of the Reign of Queen Elizabeth and was so great an honourer of the Profession and Professors of the Civil and Common Laws as he saith they do deserve honour and reverence of all men and referring us to Ludovicus Bolognius of the 130 Privileges due to a Doctor of the Laws declareth that they ought to be honoured in the Courts of Princes according to that saying Doctores Legum sunt honorandi ab omnibus Doctors of Law are to be honoured of all men and under that notion comprehendeth Serjeants at Law and other the Legists and Professors of the Common Law doth not disagree when he giveth us not only the evidence that none but Gentlemen were admitted into the Inns of Court but the reason thereof for that Nobleness of Blood joyned with Virtue maketh a man fit and most meet to the enterprizing of any publick service and for that cause it was not for nought that our antient Governors in this Land did with a special foresight and wisdom providâ— that none should be admitted into the houses of Court being Seminaries sending forth men apt for the Government of Justice except he were a Gentleman of blood And that this may seem a truth I my self saith he have seen a Kalender of all those which were together in the society of one of the same houses about the last year of King Henry the 5th with the Arms of their Houses and Family marshalled by their names when Gentry was in that Kings Reign so rightly esteemed and valued as he being to raise an Army to go with him into France did in that warlike age by his Edict or Proclamation prohibit any to go with him but such as had Tunicas Armorum did bear Coats of Arms or were gently born or discended except such as had served in the Battle of Agen-Court And the strict observance of admitting none into the Inns of Court but such as were born Gentlemen was so lately used in some if not all of the Inns of Court as Sir John Archer Knight now one of the Justices of the Court of Common Pleas at
Bench and Common Pleas for the time being or other two Justices in their absence may upon Bill or Information put to the said Chancellor for the King or any other have authority to call before them by Writ or Privy Seal the said misdoers By an Act of Parliament made in the 12th year of his Reign Perjury committed by unlawfull maintenance embracing or corruption of Officers in the Chancery or before the Kings Councel shall be punished by the discretion of the Lord Chancellor Treasurer both the Chief Justices and the Clerk of the Rolls and if the Complainant prove not or pursue not his Bill he shall yield to the party wronged his costs and damages By an Act of Parliament made in the 19th year of his Reign Ordinances made by Fellowships of Crafts are to be approved by the Chancellor Treasurer of England Chief Justice of either Benches or three of them or both the Justices of Assise in their Circuits where such Ordinances shall be made By an Act of Parliament made in the first year of the Reign of King Henry the 8th the Lord Chancellor or Lord Keeper may appoint two three or four persons to receive Toll or Custome and to imploy the same upon the repair of the Bridge of Stanes in the County of Middlesex and to yield accompt thereof By an Exception in an Act of Parliament made in the 14th and 15th year of his Reign touching Aliens and their taking of Apprentices any Lord of the Parliament may take and retain Estrangers Joyners and Glasiers in their service In the Act of Parliament made in the 21th year of his Reign prohibiting Plurality of Benefices and the taking of Farms under great penalties there are Exceptions for the Kings Chaplains not sworn of his Councel and of the Queen Prince or Princess and the Kings Children Brothers Sisters Vnkles or Aunts the eight Chaplains of every Archbishop six of every Duke five of every Marquess and Earl four of every Viscount and other Bishop the Chancellor and every Baron of England three of every Dutchess Marquioness Countess and Baroness being Widdows And that the Treasurer and Comptroller of the Kings House the Kings Secretary Dean of his Chappel the Kings Almoner and Master of the Rolls may have every one of them two Chaplains the Chief Justice of the Kings Bench one Chaplain the Warden of the Cinqueports for the time being the Brethren and Sons of all Temporal Lords may keep as many Benefices with Cure as the Chaplains of a Duke or Archbishop and the Brethren and Sons of every Knight may keep two Parsonages or Benefices with Cure of Souls And that the Widdows of every Duke Marquess Earl or Baron which shall take to Husband any man under the degree of a Baron may take such number of Chaplains as they might when they were Widdows and every such Chaplain have the priviledge aforesaid By an Act of Parliament made in the same year and Parliament a Commission was granted to Cutbert Bishop of London Sir Richard Brooke Knight Chief Baron of the Exchequer John More one of the Justices of the Kings Bench c. to assign how many Servants every Stranger shall keep within St. Martins le Grand London By an Act of Parliament made in the 23th year of his Reign Commissioners of Sewers to survey Streams Gutters Letts and Annoyances are to be named by the Lord Chancellor Lord Treasurer and two Chief Justices or any three of them and their Decree to bind the Kings and all mens Lands By an Act of Parliament made in the same year and Parliament the prices of the Tun Butt Pipe and Hogshead of French Wines Sack Malmsey shall be assessed by the Kings Great Officers By an Act of Parliament made in the 25th year of his Reign Butter Cheese Capons Hens Chickens and other Victuals necessary for mens sustenance are upon complaint of enhancing to be assessed by the Lord Chancellor of England Lord Treasurer the Lord President of the Kings most Honourable Privy Councel the Lord Privy Seal the Lord Steward the Lord Chamberlain and all other Lords of the Kings Councel the Treasurer and the Comptroller of the Kings most Honourable House the Chancellor of the Dutchy of Lancaster the Kings Justices of either Bench the Chancellor Chamberlains Vnder-Treasurer and the Barons of the Kings Exchequer or seven of them at the least whereof the Lord Chancellor the Lord Treasurer Lord President of the Kings Councel or the Lord Privy Seal to be one By another Act of Parliament made in the same year and Parliament the prices of Books upon complaint made unto the King are to be reformed by the Lord Chancellor Lord Treasurer or any of the Chief Justices of the one Bench or the other by a Jury or otherwise By another Act of Parliament made in the same year and Parliament every Judge of the Courts of Kings Bench and Common Pleas the Chancellor and Chief Baron of the Exchequer the Kings Attorney and Sollicitor for the time being may have one Chaplain who may be absent from his Benefice and not resident By an Act of Parliament made in the 28th year of the Reign the Lord Chancellor Lord Treasurer Lord President of the Kings most Honourable Councel Lord Privy Seal and the two Chief Justices of either Bench or any four or three of them are impowered by their discretions to set the prices of all Wines by the Butt Tun Pipe Hogshead Puncheon Tearce Barrel or Rundlet the pint of French Wine being then set at 1 d. per pinte By an Act of Parliament made in the 33th year of his Reign the Chancellor of the Dutchy of Lancaster Courts of Augmentations and First-Fruits Master of the Wards and Liveries Treasurer of the Kings Chamber and Treasurer of the Court of Augmentation and Groom of the Stool may each of them retain one Chaplain who may be absent from their Benefices provided they be twice a year at their Benefices with Cure of Souls by the space of eight dayes at a time By an Act of Parliament made in the 34th and 35th year of his Reign the Lords authorized by the Statute of 28 H. 8. cap. 14. to set the prices of Wines in gross may mitigate and enhance the prices of Wines to be sold by retail By an Act of Parliament made in the 37th year of his Reign for the settlement of Tithes betwixt the Parsons Vicars and Curates of London and the Inhabitants thereof the Archbishop of Canterbury Lord Chancellor Lord Treasurer Lord President of the Councel Lord Privy Seal Lord Great Chamberlain of England with some of the Judges were chosen Arbitrators to make a final conclusion betwixt them which shall be binding by their Order under any six of their hands By an Act of Parliament made in the same year the Lord Chancellor Lord Treasurer Lord President of the Kings Councel Lord Privy Seal and the two Chief Justices or
the 17th year of her Reign by her Writ under the Great Seal of England directed to that learned and judicious Lawyer Sir Nicholas Bacon Knight Lord Keeper of it who allowed and sealed it and the Lord Treasurer of England and her Justices Barons of the Exchequer Sheriffs Mayors Bayliffs c. signifie that she had taken into her Protection for three years Martin Frobisher Gent. probably the eminent Sea-Captain and his ordinary Servants whom she had imployed in her affairs beyond the Seas and therefore by vertue of her Royal Prerogative which she would not have disputed commanded every of them that during the saie Martin Frobishers absence and before his departure and after his return during the said three years they should not suffer him or his Servants in ordinary to be arrested attached or outlawed or to be molested or disquieted in their Persons Goods Chattels Lands or Estates and that the Justices in their several Courts should supersede and discharge all Actions Plaints and Suits tending thereunto and not proceed thereupon and may give us to understand that howsoever in Warhams Case in the 20th year of her Reign before her Judges of her Bench her Protection signifying that she would not have her Prerogative disputed was without debating as the Writ commanded not allowed but silently laid by possibly by reason of variance or incertainty of time or upon some defect of form or words in the Writ or in regard that it mentioned not whether the party desiring to be protected was profecturus or moraturus to go or abide in the Queens service or because the Writ of Protection came too late or the nature of the Action or some matter in the Pleading or the Issue which was omitted by the Reporter would not admit it yet the disallowance of one Protection is no argument or enough to conclude that no Protection was or ought to be allowed when so many do appear in the Records and Year-Books of our Laws to have been allowed For certainly if that great Queen had the year before 1588. and that almost unavoidable ruining storm of the Spanish Armado which threatned the destruction of her and this Nation given her Protection Royal to Sir Thomas Gresham Knight that Prince of Merchants for the securing of his person and Estate from arrest or troubles when for her service and the safeguard and defence of the Nation he had stretched that grand and all the Credit which he had in Foreign parts to dreyn the Banks thereof and to borrow and take up at Interest so great a part of the moneys thereof as he prevented the King of Spain therein and so disappointed him of money as he could no sooner send that formidable Navy against England which he designed to have sent the year before whereby she was not suddenly attaqued but had time to provide a gallant resistance and whether the clause of commanding her Prerogative therein not to be disputed had been inserted or not which in such a secret and important affair ought not to have been made publick either in such a Writ or in a Court of Justice every man that had not sued a Bill of Divorce against his reason common sense and understanding might have believed such a Protection in such an exigent to have been as legal as it would have been for publique good and necessary And although the Reverend Judge Fitzherbert was of opinion that a Protection of the King quia in servitio Regis because the party to whom it was granted was in the service of the King or the like is not to be allowed for a longer time than a year and a day being supposed to be a competent time for the dispatch of such an emergent or extraordinary imployment of the Kings as was pretended which no Act of Parliament hath yet limited there being a possibility of a longer time of the imployment either as profecturus or moraturus in the going or tarrying when the time of the dispatch of business cannot be circumscribed especially in Foreign parts whither and whence in longer or shorter Voyages the winds as well as other occasions and accidents are to be aâ—â—ended and that in the 39th year of the Reign of King Henry the 6th a Protection was not allowed because the Defendant having obtained it in regard that he was in servitio Regis and sent to Rome Pleas of Dower and Quare Impedit were not as they used to be and ought by Law to be excepted in the Writ of Protection yet Mayle one of the Justices of the Court of Common Pleas then said that in a Voyage Royal or in business concerning the Realm or in an Embassage or the like a man should be protected and a Voyage Royal saith Fitzherbert is where the King goeth to War or his Lieutenant or Deputy Lieutenant and that a man is to be protected when he is in the Kings service for guard of the West Marches of England towards Scotland and in the 21th year of the Reign of King Henry the 6th a Protection was allowed after the Nisi prius or Issue tryed and sometimes for the Plaintiff as well as the Tenant or Defendant as in the 14th year of the Reign of King Edward the 4th Essoines of the Kings service being likewise ordinarily allowed by the Judges upon allegation or proof of the Kings service at the time of casting or praying for them there being an ordinary course of Essoining allowed communi jure of common right to such as are not in servitio Regis or the Kings Servants as de malo lecti for sickness c. and are now in many Actions allowed of course without any proof or question made thereof And those kind of Protections were so effectual and respected in the 21th year of the Reign of King Edward the 3d. as in an Action where the Queen who was to enjoy some greater Priviledges then others of the Subjects was Plaintiff such a Protection was allowed and it is not without some warrant or reason of Law observable that the Protections and Essoines which were quia in servitio Regis in regard that the person to be protected was in the Kings service were most commonly quia profecturus because he was to go or abide upon some imployment for the King do mention per praeceptum or in obsequio Domini Regis that they were sent by the Kings command or upon his service which in case of ordinary or domestick service needs not to be so much mentioned by the words per praeceptum or in obsequio Regis the word obsequium being by the Civil Law only understood to be reverentia honoris exhibitio erga parentes patronos an honour and reverence of Freemen to their Parents and Patrons contradistinct to the duty of work or labour in Servants that such men were commonly Strangers and none of the Kings Houshold Servants and that in those early dayes and times of Popery when there was
come with them to sach Convocation often times and commonly be arrested molested and inquieted the King willing gratiously in that behalf to provide for the security and quieâ—ness of the said Prelates and Clergy at the supplication of the said Prelates and Clergie and by the assent of the great men and Commons in Parllament assembled did ordain and establish that all the Clergy hereafter to be called to the Convocation by the Kings writ and their servants and familiars should for ever hereafter fully use and enjoy such liberty or defenee in coming tarrying and retorning as the great men and commonly of the Realm of England called or to be called to the Kings Parliament did enjoy or were wont to enjoy or in time to come ought to enjoy In the 23. and 24 th year of the Raigne of that King the Commons in Parliament did pray the King that every person being of the Lords or Commons House having any assault or fray made upon him being at the parliament or coming or going from thence might have the like remedy therefore as Sir Thomas Parre Knight had which shews that in those days they did not endeavour to punish any breach of their priviledges by their own authority but made their addresse by their petitions unto the King as their Soveraigne and Supreme for his Justice therein To which the King answered the Statutes therefore made should be observed In the 28 th year of the said Kings Raigne It was at the request of the Commons in parliament for that William Taylebois of South Lime in the County of Lincoln Esq would in the Parliament time have slain Ralph Lord Cromwell one of the Kings Councel in the Pallace of Westminster Enacted that the said William Taylebois should therefore be committed to the Tower of London there to remain one year without bayle baston or Mainprize and that before his delivery he should answer unto the same In the 14 th and 15 th year of the Raign of King Edward the 4 th William Hide a Burgess of Parliament for the Town of Chippenham in Wiltshire being a Prisoner upon a Writ of Capias ad satisfaciendum obtained a Writ out of the Chancery to be delivered with a saving of the right of other men to have Execution after the Parliament ended notwithstanding the Pâ—ecedent of Sir William Thorpe Knight Speaker of the house of Commons in the 18 th year of the Raigne of the Raigne of King Henry the 6 th taken in Execution for a debt of 1000 l. at the suit of Richard Duke of York betwixt the adjournment and recess of that Parliament and could not be released so as a new Speaker was chosen in his place which may well be conjectered to have been so carried by the then overbearing power and influence of that Duke and his party great alliance and pretences to the Crown which that meek and pious King was not able to resist For in the 17 th year of the raigne of King Edward the 4 th at the petition of the Commons in Parliament the King with the assent of the Lords Spiritual and Temporal granted that John Atwill a Burgess of the City of Exeter condemned in the Exchequer during the Parliament upon eight several informations at the suit of John Taylor of the same Town should have as many Writs of Supersedeas as he would untill his coming home after the Parliament In the 35 th year of the Raigne of King Henry the 8 th Trewyniard a Burgess of Parliament being imprisoned upon an Utlary in an action of debt upon a Capias ad satisfaciendum was delivered by priviledge of Parliament allowed to be legal by the opinion of the Judges before whom that case of his imprisonment and release was afterwards debated and their reasons as hath been before remembred given for the same with which agreeth the precedent in the case of Edward Smalley a servant of Mr. Hales a member of Parliament taken in Execution in the 18 th year of the Raigne of Queen Elizabeth in the Report whereof made by the Committee of Parliament for his delivery it is said that the said Committee found no precedent for the setting at large any person in arrest but only by writ and that by diverse precedents on Record and perused by the said Committee it appeared that every Knight Citizen and Burgesse of the house of Commons in Parliament which doth require priviledge hath used in that case to take a corporal oath before the Lord Chancellor or Lord Keeper of the great Seal of England for the time being that the party for whom such writ is prayed came with him to the Parliament was his servant at the the time of the arrest made whereupon Mr Hale was directed by the house of Commons to make an oath before the Lord Keeper as aforesaid and to procure a warrant for a Writ of priviledge for his said servant howbeit the Lords in Parliament did in the Raigne of Queen Elizabeth usually of their own authority deliver their Servants out of Execution if arrested in Parliament time In the 27 th year of her Raigne a Member of the house of Commons having been served with a Writ of Subpaena issuing out of the Chancery and the house signifying to the Lord Keeper that it was against their priviledge he retorned answer that he could not submit to any opinion of the house concerning their priviledges except those priviledges were allowed in Chancery and would not recall the Subpaena With which accordeth Mr. VVilliam Pryn too violent an undertaker in the late times of usurpation to assert their phantosme or feigned soveraignty whereof he was then and since his Majesties happy restoration untill his death a member who having by the keeping of the Records in the Tower of London found the way to a better weighed and more sober consideration and cause enough if he would have well inspected himself and what he had formerly written to retract those many errors which an overhasty reading and writing had hurried him into hath in his animadversions upon Sir Edward Cokes 4 th part of his Institutes declared that the house of Commons in Parliament had untill the later end of the last Century assumed no Jurisdiction to themselves or their Committee of priviledges to punish breaches of priviledges but onely complained thereof to the King or the Lords in Parliament And therefore King James in an answer to a Petition of the House of Commons in Parliament in Anno Dom. 1622 was not in an error when he said that although we cannot allow of the stile calling your priviledges your antient and undoubted rights and inheriiance but could rather have wished that you had said that your priviledges were derived from the grace or permission of our Ancestors and us for most of them were from precedents which shews rather a tolleration then inheritance yet we are pleased to give you our royal assurance that as long as you contain
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
then Kings Mother Or the popular greatly belov'd Duke of Norfolk out of the County of Norfolk And Sir Edward Coke that great Lawyer so deservedly call'd might if he were now again in his house of clay and that Earthly Honor which his great Acquests in the Study and Practice of the Law had gained him do well to inform us that the Report of Husseys the Chief Justice who is by him mistaken and called the Attorney-General to King Henry the Seventh was any more than an Hear-say and nothing of kin to the Case put by the King whereupon they were commanded to assemble in the Exchequer Chamber whether those that had in those tossing and troublesom times been Attainted might sit in Parliament whilst their Attainders were reversing And the Case concerning the King himself whether an Attainder against himself was not void or purged by his taking upon him the Crown of England or that which in that Conference was brought in to that Report impertinently and improperly to what preceded or followed by the Reporter of that Conference was not at the most but some by discourse and not so faithfully related as to mention how farre it was approved or wherein it was gain-sayed by all or any or how many of the Judges it being altogether unlikely that if Hussey had been then the Kings Attorney-General he would have cast in amongst those Reverend Judges such an illegal and unwarrantable Hear-say of an opinion of the Lord Chief Justice Markham in the Reign of King Edward the Fourth whom that King as our Annalist Stow recordeth displaced for condemning Sir Thomas Cooke an Alderman of London for Treason when it was but Misprision said unto that King That the King cannot Arrest a man upon suspition of Treason or Felony because if he should do wrong the Party cannot have an Action against the King without a bestowing some Confutation Reason or Arguments against it which the Reporter was pleased to silence And was so weak and little to be believ'd an Opinion as the practice of all the Ages since have as well as the Times preceding disallowed and contradicted it and whether such an Opinion can be warranted by any Law or Act of Parliament And whether the King may not take any Cause or Action out of any of His Courts of Justice or Equity and give Judgment thereupon and upon what Law Reason or Ground it is not to be done For if the Answer which Sir Edward Coke made to what the King alledged That the Law was grounded upon Reason and that he and others had reason as well as others That true it was God had endued His Majesty with excellent science but His Majesty was not learned in the Laws of England and Causes which concern the Life and Inheritance or Goods of his Subjects which are not to be decided by natural Reason and Judgment of Law which Judgment requires long study and experience And when the King was therewith greatly offended and replyed That he should then be under the Law which was Treason to be said answered that Bracton saith That Rex non debet esse sub homine sed sub Deo Lege That a King ought not to be under man but God and the Law shall be compared with the Opinion of Dyâ—r Lord Chief Justice of the Court of Common-Pleas and the Judges of that Court in the Case betwixt Greâ—don and the Bishop of Lincoln and the Dean and Chapter of Worcester upon a Demurrer in a Quare Impedit in the eighteenth and nineteenth year of the Reign of Queen Elizabeth reported by Mr. Edmond Plowden as great and learned a Lawyer as that Age afforded and one whom Sir Edward Coke doth acknowledge to be no less did allow and were of opinion That the King cannot be held to be ignorant of the Law because He is the Head of the Law and ignorance of the Law cannot be allowed in the King there will be as little cause as reason to dote upon such Conclusions especially when the erronious Mis-application and evil Interpretation of that alledged out of Bracton will be obvious to any that shall examine the very place cited that his meaning was that where he said that the King was sub Deo Lege under God and the Law it was that he was onely non uti potentia sed judicio ratione And in other places of his Book speaking who primo principaliter possit debeat judicare who first and principally shall and may judge saith Et sciendum quod ipse Rex non alius si solus ad hoc sufficere possit cum ad hoc per virtutem Sacramenti teneatur astrictus And it is to be understood that the King Himself and none other if he alone can be able is to do it seeing He is thereunto obliged by His Oath Ea vero quae Jurisdicâ—ionis sunt Pacis ea quae sunt Justiciae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona seperari poterint cum faciant ipsam Coronam for that which belongeth to his Jurisdiction and that which belongeth to Justice and the Peace of the Kingdom doth belong to none but the Crown and Dignity of the King nor can be separated from the Crown when it makes the Crown so as those who should acknowledge the strength and clearness of a Confutation in that which hath been already and may be said against those Doctrines of Sir Edward Coke may do well to give no entertainment unto those his Opinions which nulla ratione nulla authoritate vel ullo solido fundamento by no reason authority or foundation can be maintained but to endeavor rather to satisfie the world and men of law and reason whether a Soveraign Prince who as Bracton saith habet omnia Jura sua in manu suâ— quae pertinent ad Regni gubernaculum habet etiam Justiciam Judiciam quae sunt Jurisdictiones ut ex Jurisdictione sua sicut Dei Minister Vicarius hath all the Rights in his hand which appertaineth to the Government of the Kingdom which are Jurisdictions and as His Jurisdiction belongeth unto Him as He is Gods Vicar and Minister is in case of Suspition of Treason or Felony where His ever-waking Intelligence and careful Circumspections to keep Himself and People in safety shall give Him an Alarm of some Sedition Rebellion or Insurrection and put on His Care and Diligence to a timely Endeavor to crush or spoil some Cockatrice Eggs busily hatching to send to His Lord Chief Justice of the Court of Kings Bench or in his absence out of the Term some Justice of Peace for a Warrant to Arrest or Apprehend the party offending or suspected which our Laws and reasonable Customs of England did never yet see or approve and when such offenders are to be seized as secretly as suddenly Or what Law History or Record did ever make mention of so unusual undecent
and unfitting a course or method of Government For can any man that is Master of the least grain of Reason or Prudence think it safe for a Kingdom so to restrain if it could be a Soveraign Prince when a person in time of Pestilence or otherwise shall with a Plague-Sore running upon him come into the presence of the King who in case of Leprosie when it was more frequent than now it is can for the preservation of His People from the infection thereof make His Writ de Leproso amovendo command the Leper to be removed to some other place that He should have no power to bid any of His Servants to cause him to be taken away or put in prison Or that King James when his Life was assaulted by the Assassinate which Earl Gowrey had appointed to murther him did transgress any Law of Scotland Nature or Nations when he did arrest and struggle with him until the loyal Sir John Ramsey came to his Rescue Or that that prudent Prince after his coming into England did break any Law of England Nature or Nations or not perform the Office of a King when by his own Authority he did without sending to the Lord Chief Justice of the Kings Bench or a Justice of Peace for his Warrant cause Sir Thomas Knivet and others to apprehend Guydo Faux but some minutes before the Match should have been secretly and undiscovered laid in order to the firing of the Gunpowder and other Matterials which were shortly after to take fire for the accomplishment of the intended treason of him and his wicked Complices to destroy the King Prince Nobility and the Chiefest of his People assembled in Parliament and all that were in or near the Cities of London and Westminster by the Gunpowder Plot of blowing up the Houses of Parliament And whether a King may not in the like case of Contempt or Danger as well do it as he may do where a Souldier prest in the Kings Service upon a Certificate by the Captain into the Chancery being the Watch-Tower or Treasury of the Kings Justice that he absented himself send his Writ or Mandate to one of his Serjeants at Arms to take him which Sir Edward Coke saith may be done per Legem terrae by the Law of the Land and may upon a Certificate of an Abbot or Prior into the Chancery do the like by his Writ to the Sheriff to take a man professed in Religion that is Vagrant and alloweth it to be Lex Terrae a Legal Process so to do in honorem Religionis in honour and respect to Religion or may not as wel imprison a man for a Contempt as Discharge him Or why He may not Arrest or cause any man to be Arrested for Felony or Treason or but suspition thereof when Sir Edward Coke is of opinion any man may do in the Kings Name upon a common Fame or Voice or Arrest a man by warranty of Law and of his own Authority which woundeth another dangerously or keepeth company with a notorious Thief whereby he is suspected or if the King shall not upon necessity or extraordinary occasions be enabled to do it for that supposed rather than any reason at all that he ought not so to do in regard that no man can have an Action against Him for any wrong or injury done unto him by the King How have our Lawes and reasonable Customes for many Centuries and Ages past submitted unto and not at all complained of the Kings Seizure of Lands but suspected to be forfeited or of Lands aliened without Licence or pardon of Alienation and the like Or why should not our Kings have as much liberty as the holy King Edward the Confessour might have had if he would to have commanded a Thief to be apprehended for stealing in the Royal Lodgings when he bad him onely be gone lest Hugeline his Chamberlain should come in and take him Or as legally as King Edward the Third and his Council did commit one that was found arm'd in his Palace to the Marshalsea whence he could not be bayl'd or deliver'd until the Kings Will and Pleasure should be known Or as it was adjudged in the thirty nineth year of the Reign of King Henry the Sixth when in an Action of Trespass the Defendant justified the doing thereof by the Command of the King when he was neither Bayliff nor Officer of the Kings and it was adjudged by the Judges that he might so do without any Deed or Writing shewed for it or if they should mistake in their Arrests or Imprisonments of suspected Traytors or Felons should not have as much liberty as a Justice of Peace hath in criminal matters or as the Judges have in his Courts of Justice in civil Actions where the parties that mistake or bring their Actions where they should not or Arrest one man in stead of another are onely punished with Costs of Suit or Actions of False Imprisonment but not the Judges or Justices of Peace for howsoever some Flatterers when King Richard the Third having murthered his Nephews and usurped the Crown and sate one day in the High Court of Chancery had in some of the Pleadings or Causes heard before him alledged that the King could do no wrong and some of our Lawyers have since so much believed it as they have reduced it into a kind of Maxime and given it a place in some of their Arguments Reports Yet Bracton in the Reign of King Henry the Third and Justice Stamford in the Reign of Queen Mary did believe the King might unwillingly by Himself or His Officers or Ministers do wrong and declared the Law to be both in Bractons and Stamfords time that in such Cases the Subjects where they have any matter of Complaint or Grievance need not want their legal Remedies by Traverse Monstrans de Droit or Petition the reason of the latter being as Stamford saith because the Subject hath no other Remedy against the King but to supplicate him by Petition for the Dignity sake of the Person And a late Experience hath told us how a Dispute betwixt our two Houses of Parliament whether a Great Person accused of Delinquency might be Arrested and put under Custody before his Charge or Accusation could be made ready gave the Party opportunity to escape into the Parts beyond the Seas and the Disputants leisure and time enough to agree of the matter And it should be remote enough from any the suspition of Errour or over-credulity for any man to think an Arrest or Imprisonment by the immediate Command of the King in the case of Treason or Felony or but suspition of either of them not to be as legal as that of a Justice of Peace made by a Lord Chancellor or Lord Keeper of the Great Seal of England in his Name and by his Authority derived under him And those who will take out Sir Edward Coke's before mentioned Lessons and enter themselves into
but is no more than a Gownless mis-called Alderman and can have no more of truth or reason in it than for a Chambermaid to a Lady dressed up in her Ladies old Clothes to believe her self to be a Lady because some overcomplementing small piece of wit hath mistakenly called her so or for a man of 20 l. per annum Free Land to believe himself to be a Knight and his Wife a Lady because when according to the Statute made in the first year of the Reign of King Edward the Second he was summoned to take the Order of Knighthood upon him he compounded and paid a Fine to escape that dignity which was too big for his quality or estate and as great a madness and ridiculous as that of Don Quixot or our late Countryman Parsons the Taylor fancying himself to be the Romance Knight of the Sun or for a Bum Bayliff or Countrey Catchpole to imagine himself to be a Knight or his Wife a Lady because in imitation or observance of some antient courses or usages in our Laws he was upon a Writ of View in a Writ of Right or Entry Dower or Formedon retorned by the Sheriff to have been present at the View by the title or addition of a Knight and as little consonant to reason and truth as for a Sheriff or Justice of Peace to think himself to be an Esquire because the King by his Commission for that particular time or purpose was pleased to stile him so or if it did conferre such a Title or Dignity yet it ought not to remain either to a Sheriff or Justice of Peace when they are exuti dignitate out of those temporary Offices by the Office of Sheriff being determined or the turning the Justice of Peace out of Commission which our reason as well as the Civil Law will not permit when by the summoning of a Great man of England to assist in the House of Peers in Parliament or to attend therein he is not thereby to be accompted a Baron by Writ or to have Fee therein to him and his Heirs unless he have been thrice summoned and obeyed those Writs And the Civil Law will tell us that Si ratione alicujus officii debeantur aliqua signa seu insignia if any Armes be given the like being to be said of Titles by reason of any place or office they are but durante officio finito illo transeunt ad successores officiarios during the continuance of that Office which being determined it goeth unto those which do succeed in that Office And that and the Law of Nations will give us the reason of a greater respect to be given unto the Kings Servants rather than unto any other mens Servants when the Emperors of the West and East were so carefull that their Domestick Servants and Guards should have a more than ordinary regard wheresoever they came or had any occasion of business though in any part of their large Dominions far or remote from their Imperial Courts as in a Rescript of the Emperors Valentinianus Theodosius and Arcadius order was taken and a command given ut Domestici ac Protectores osculandi cum salutaverint Vicarium Praefecti Praetorii habeant potestatem poena enim Sacrilegii similis erit si his honorificentia non deferatur qui contingere purpuram Imperatoris digni sint aestimati that the Domesticks or Houshold Servants of note of the Emperors and the Guards attending the Court who were thought worthy to be about their persons when they came to salute the Deputy or Lieutenant of the Major Domo Lord Steward of the Emperors Houshold and General or Chief Captain of the Guards or the Governours of some Provinces or part of the Empire in the later Emperors times should be allowed to kiss him which the very learned Salmuthius in his Comment upon Guido Pancirollo interprets to be commonly a kissing of the hand as well as the sometimes receiving of a salute or kiss of the mouth which summi honoris loco tribuitur saith Cuiacius was esteemed to be the greatest honour for they deserved as much as the punishment usually inflicted upon those who committed Sacriledge which gave not due honour or respect unto those which were thought worthy to be near their persons And were so unwilling that any of their Servants which were imployed in any eminent places about their persons or affairs should when they had quitted their Offices or places be reckoned amongst the Vulgar as the Emperors Valentinianus and Theodosius did by their Rescript ordain that qui suae quodammodo adsidere Majestati videntur which had the honour to be near their persons should post depositum officium ab omni Indictionis onere seu Civilium seu Militarium judicum prorsus immunes after they had left their places be altogether free from all Taxes Civil or Military for si quis lateri Principis ipsius permissu adhaereat nobilis efficitur such of the Kings Servants as are attendant and near unto his person are reputed Noble and Honourable and their Virtue conjoyned with Riches and their imployment about the Fountain of Honour may well deserve a preheminence above other mens Servants when as the Service of such as received their honour from the Prince was as the younger Pliny said in his time pronum ad honoris iter a ready way to honour and gentleness or the bearing of Armes saith Sir John Ferne may be obtained by the service of the Soveraign according to the Rule of the Civil Law with which that learned Civil as well as Common Lawyer was not meanly or little acquainted adhaerentes lateri Principis eidem in officio quocunque minimo ministrantes nobilitantur those which are in the Service of the King and near unto his Person or imployed by him in the meanest Service are in some sort so enobled as to claim the bearing of Armes or Badges of Gentility and Ideo Coquum Principis in dignitatem haberi nobilem esse oportet omnes famulantes Principi sunt in dignitate therefore a Kings Cook ought to be so much respected as not to be denyed the like Priviledge and all the Kings Servants have a certain Dignity to them appertaining and some of our English Nobility have granted as an Earl of Stafford did to Mackworth one of his Servants Insignia Nobilium Coats of Armes to their Servants and Followers And the French Burgundians and Millanois as well as many of our antient English Nobility have heretofore permitted their Clients and such as held their Lands of them to take and use some part or resemblance of the Armes of their Lords or Seignors Wherefore the excellently learned Cassanaeus having travelled through the vast Volumes of the Civil and Caesarean Laws and wrote his Book entituled Catalogus gloriae mundi in the beginning of the Reign of our King Henry the 8th did not certainly stray or wander out of the paths of right
no Vagabonds Masterless men Boyes or Idle persons be suffered to harbour in her Court Wherfore the Servants attending therein should not now be so much in the ill opinion causeless contempt of the Mechanick and vulgar part of the people for those which are ex meliore luto better born and more civilly educated cannot certainly so lose their way to a gratefull acknowledgement of their Princes daily protection and needed favours as to villifie or slight his Servants by imitating the sordid examples of a less understanding part of the people or want their due respects if it shall be rightly considered that our Ancestors and a long succession of former ages were not so niggard or sparing of their well-deserved respects When our Kings and Princes and the wiser part of their people supposed to be in Parliament did attribute so much unto them and so very much trust and confide in them as they did from time to time put no small power into their hands and leave no small concernments of themselves and the Kingdom to their prudence fidelity and discretion When the Lord Chancellor or Lord Keeper of the Great Seal of England who administreth the Oathes usually taken by the Lord Privy Seal Lord Treasurer of England Lords of the Kings most Honourable Privy Councel Chancellor of the Exchequer Master of the Rolls Chancellor of the Dutchy of Lancaster Justices of the Courts of Kings Bench and Common Pleas Barons of the Exchequer Kings Attorney and Sollicitor General Serjeants at Law Masters of Requests and Chancery upon and before their admission into their several Places and Offices nominates and appoints the Custos Rotulorum and Justices of the Peace in every County of England Wales some few Franchises and Liberties excepted and by his largely extended Jurisdiction committed unto his trust doth by the Writs remedial of his Soveraign guide and superintend the Cisterns and Streams of our Laws those living waters which do chear and refresh our Vallies and make them to be as a watered Garden And with the two Lord Chief Justices Master of the Rolls the other Reverend Judges and the Masters of Chancery appointed to distribute the Kings Justice according to the laws and reasonable customs of the Kingdome have their Robes and Salaries allowed and are as Justice Croke acknowledged in his argument against the Ship-money as the Kings Councel at Law the chief Justice of the Court of Common Pleas being as is mentioned in a Manuscrip of Henry Earl of Arundel copyed out of a book of George Earl of Shrowsbury Lord Steward of the houshold unto King Henry the seventh and King Henry the eighth communicated unto me by my worthy friend Mr. Ralph Jackson one of his Majesties Servants in ordinary a great Member of the Kings house for whose favour counsel and assistance in the Law to be shewed to the houshold matters and servants he taketh an yearly Fee by the Bâ—tler of England of two Tuns of Wine at two Terms of the year which is allowed in the Court of houshold When the Justices of Peace in every City and County are or should be the under Wheels in that excellently curiously framed Watch of the English Government as the late blessed Martyr King Charles the first when he so sadly forwarned the pulling of it in pieces by a mistaken Parliament and the Rebellious consequences of it not unfitly called it are at their quarter Sessions under his pay and allowance when the Assize of the bread to be sold in England was in the fourth year of the Reign of King John being thirteen years before his granting of Magna Charta ordained by the King by his Edict or Proclamation to be strictly observed under the pain of standing upon the Pillory and the rates set and an Assise approved by the Baker of Jeoffry Fitz-Peter chief Justice of England the nas one of the Kings more especial Servants as to matters of justice resident and attendant in the Kings House or Palace and by the Baker of R. of Thurnam that Constitution and Assise being not at all contradicted by his Magna Charta or that of his Sons King Henry the 3 d. Which Assise of bread contained in a writing of the Marshalsea of the Kings house being by the consent of the whole Realm exemplified by the Letters Patents of King Henry the 3 d. in the 51 th year of his Raign was confirmed and said to be proved by the Kings Baker By an Act of Parliament made in the 9 th year of the Reign of that King if the King be out of the Realm the chief Justices one of which if not both were then residing and attending in the Kings Court were once in the year through every County with the Knights of the Shires to take Assises of Novel Disseisin and Mortdancester in which if there be any difficulty it was to be referred unto his Justices of the Bench there to be ended By an Act of Parliament made in the 6th year of the Reign of K. Edward the first Wine sold against the Assise was to be by the Mayor and Bayliffs of London presented before the Treasurer and Barons of the Exchequer who then resided in the Court or Palace of the King The Statute of Westminster the 2. made in the 13th year of the said Kings Reign mentioneth That the Kings Marshal is to appoint the Marshal of the Kings Bench and Exchequer the Criers and Virgers of that and the Court of Common Pleas which at this day is done by and under the Authority of the Earl Marshal of England who by his Certificate made by his Roll of a personal service in a Voyage Royal performed by those that held Lands or Offices in Capite and by Knight Service he discharged an Assessement of Esonage by Parliament superintendeth the cognisance and bearing of Armes of the Nobility and Gentry and the duty of the Heralds and Officers attending thereupon And with the Lord Great Chamberlain before the unhappy change of the Tenures in Capite and by Knight Service into Free and Common Socage introduce and bring unto the King such as were to do Homage unto him for their Baronies or Lands By an Act of Parliament made in the 14th year of the Reign of King Edward the third and by the Kings Authority the Sheriffs of every County in England and Wales who are for the most part under the King the only Executioners of Justice in the Kingdom are three out of six for every County presented by the Judges of every Circuit the morrow after the Feast of All-Souls in every year to the Lord Chancellor or Lord Keeper of the Great Seal of England Lord Privy Seal Lord Treasurer Lord Steward the later of which at the beginning and opening of Parliaments is by his Office to administer the Oathes of Allegiance and Supremacy to every Member of the House of Commons in Parliament the Master of the Horse Lord
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
Crown from whence they had their first Original and Being and might by their every years Forfeitures since of too many of them by misusers or non-users take the advantage thereof And those of the better sort which have received the Honor of Knighthood and do enjoy the Dignity and respects thereof and in their Title of Knight or Cniht according to the Saxon and High and Low Dutch Languages do bear the signification of a Servant or attendant in Military affairs and so Uriah in the preface to the seven Paenitential Psalmes in King Henry the 8ths Primer is called King Davids Knight and Servant and our Knights were as Sir Henry Spelman hath informed us antiently reckoned amongst the Famulos Thanos Ministrâ—s Regis amongst the Kings special and more remarkable Servants and do or should enjoy the Priviledges not to be Decenners or Tithing men that they and their eldest sons should be exempted from being cited to appear in the Court Leets or Hundreds are as saith Camden called Equites aurati because antiently it was lawfull only for them to Guild and beautifie their Armor and Caparisons for their Horses with Gold and by the Statute made in the 8th year of the Reign of King Henry the 5th concerning only what things may be Guilded and what laid on with Silver Knights Spurs and all the Apparel which pertaineth to a Baron and above that Estate are allowed unto that noble Order when all others under the Penalty of 10 times the value are prohibited Were not saith the Lord Chancellor Egerton by the course of the Court of Star-Chamber to be examined upon any Interrogatories which might disparage them those that are to be chosen for every County which should be the Worthiest and Wisest men to be in the House of Commons in Parliament are to be milites gladiis cincti Knights in Assises of novel disseisin mort d'ancester attaint grand assise or in Writs of right two of the discreetest Knights of the Shire where the Justices shall come shall be associated unto them three are to be in Commissions of Oyer and Terminer to hear and determine forcible Entries rnd Outrages done in their County no man but a Knight was capable to be a Coroner antiently an eminent Officer of the Crown and Realm of England a plaint from a base and inferior Court could not be removed but by the Testimony of four Knights an Infant holding Lands by Knight Service made a Knight was antiently as to his person out of wardship or pupillage a Knight inhabitant or resorting to any City or Town Corporate wherein is Conusance of criminal Pleas is not to be impannel'd in any Jury for the Triall of any Capitall crime when the Sheriff had received Tallies of the Kings Debtors although he was an Officer of Trust and whose Retorne or Answer was much credited yet was not his Certificate into the Kings Exchequer of that Faith or Credit in the case aforesaid except the same were Fortified with one part of a Chirograph or Indenture Sealed and the hands of two Knights Testifying the same no Constable or Castelaine was to distraine a Knight for Castle-guard or to Execute that Service in his own Person because he is Priviledged to do it by the body of another and the like in Service of War in regard of the Dignity of Knighthood in every Commission to take the acknowledgment of a Fine to be levied of Lands a Knight ought to be one of the Commissioners in grand Assise and Writs de faâ—so judicio four Knights are to be Impannelled and not a less number in a Writ de perambulatione facienda and are so much valued and Intrusted above others as in Tryalls and Issues at Law where any of the Nobility or any Bishop is a party one Knight is to be of the Jury and are so more than many others Priviledged as their Armor and Horses as hath been before remembred are not to be taken in Execution there being so great an Honor appropriate and fixed to the degree of Knighthood as by the Law of Nations where their Knights are not also without many and great Priviledges an English Knight is not to be denyed that Honor Place and Reverence in all Forrein Kingdoms and Places where they shall have occasion to reside and Travell and are by other Nations as well as ours so much esteemed as they are not whilst they are Knights not to suffer any ignominous punishment and therefore S. Giles Mompesson and Sir Francis Michell Knights in the later end of the Reign of King James were degraded before they under went the Infamy inflicted upon them And so much were our Knights respected by our Laws as Hakelinus filius Joscii Quatribusches was in the time of King Henry the 2d fined 100 l. then a great Sum of Money for striking a Knight and Moyses de Cantebridgia 40 Marks because he was present when the Knight was compelled to Swear that he would not complain of the Injury done unto him Sir Francis Tyas a Knight in the Reign of King Edward the first recovered five pounds Damages in Wakefeild Court in Yorkshire a-against one German Mercer for Arresting the Horse of one VVilliam Lepton that was his Esquire and causing him to be unattended the Court Roll mentioning it to be ad dâ—decus dampnum praedicti Francisci quia fuit sine Armigero to the disgrace and damage of the said Sir Francis because he wanted the Service of his Esquire and a Ribauld or Clown that should without cause strike a Knight was as Britton saith to be punishâ—d by the loss of his hand that did it every man should owe so much to their benefactors as not to deny the King those regards and respects which are due unto him when the contempt or misusage of them cannot have any better effect than a dishonor of the King himself or be without a Reflection upon their Master and a disparagement to his Regal Authority which all the Histories and Monuments of former times have loudly Proclaimed to be dangerous both to King and people and do not seldome happen when Majesty is either contemned or neglected They who have no other to flye unto for help in in case of a denyall of their own Priviledges and can by his Favor and Justice procure a Writ of secta ad Curiam when a man refuseth to perform his Suit either to the County or Court Baron or de secta ad molendinum against one that refuseth to Grind his Corn at the Lords Mill quare obstruxit against one who having a liberty to pass through his Neighbours ground cannot do it by the owners threatning to hinder it essendi quietum de thelonio in the case of Citizens and Burgesses of any City or Town who have a Charter or prescription to exempt them from Toll through the whole Realm a Writ de fine Annullando to annull a Fine levied of