nature could not be without some Suits or Controversies it would be better to introduce certain forms of Laws in the proceedings thereof by which by the Judges appointment men might manage and frame their actions and fuits than to suffer men to fight and brawl one with another did ordain that nemini liceret in judicio experiri nisi impetrata prius agendi formula a Collegio Pontificum No man was permitted to prosecute another at Law until he had obtained a form or direction for his Action from the College of Priests who were then as the Priests amongst the Hebrews the most learned and experienced afterwards the Praetor or Lord Chief Justice or Juris Civilis Custos Guardian or Keeper of the Law in the time of their republique had authority actionem dare to allow of the action or negare to disallow it and prohibited any Action to be prosecuted against a Parent or Children or against a Patron or the Parents of a Patron sine permissu suo without his license But afterwards when that imperious mistress of the world was married to the Caesars or Roman Monarchy their Emperors as Dioclesian and Maximian Gordian Valerian and Galienus and their successors did by their Rescripts of which infinite examples saith Brissonius might be instanced allow of their Petitions for Debts Trespass or other matters before they were remitted to the Judges appointed and thinks that the original of that Custom came ab ultima antiquitate had a long before and very antient foundation Et apud Francos amongst the old French there appears to have been antiently the like address to their Kings for Justice before they were recommended to the Judges And howsoever by the favour of some of our later Kings and their Subordinate Courts of Justice for the ease and expedition of the Subjects in their suits and actions as they can now of course as it was acknowledged to be in the Reign of King Edward the ◠ex gratia cursoria by an indulged course as they call it out of the Courts to whose Jurisdiction it belongeth take out writs and process to arrest and prosecute as they shall have occasion without the observance of those good and wholsome former rules and directions of our Laws yet there is no record or proof to be found that any of our Kings have so far indulged those courses as to release in that particular the rights and privileges of themselves and their servants in that necessary and well-becoming enforcing of leave or license first to be had before any action or suite commenced against any of their servants which the Laws and reasonable Customs of England derived from the rational Laws and Customs of so many wise and prudent Nations standing yet in force and unrepealed or unabrogated did and do yet intend and direct to be used in the case of all other men that were not the Kings Servants And the Civil Law having taught our Common Law that excellent use and policy of Tenures in Capite and by Knight-service the rules whereof they ought to observe in those services obliging a gratitude as long as they hold those lands in so beneficiary a manner which do tanquam ossibus haerere fix and become inherent and as it were connatural to the Lands would if our Common Law should be silent and there were no Antient Customs or usages to direct it injoyn an observance and respect towards their fellow servants as much as is now claimed in that particular by the Kings servants not to be arrested imprisoned or molested in their Persons or Estates without leave or licence first obtained of their Sovereign for if any sought to disturb their service or quiet before that late unhappy conversion of those Tenures into free and common socage which our seri nepotes and posterity will as may justly be feared rather lament with the weeping Prophet Jeremy than have any the least cause or occasion of rejoycing or taking any comfort in that their supposed freedome or acquest they would not only have been deservedly branded with that most infamous and in it self a worse than Pilloried note of Ingratitude but where the Civil Law and the reason of it could reach them be lyable to the forfeiture or loss of the Fee or Land holden and therefore it was that those feudatary Laws which have gained so great a reputation and entertainment throughout all Europe the most civilized and well-governed quarter or fourth part of the world and extended it self into some considerable parts of the other three as far almost as the habitations of the wild and savage part of them did adjudge Vasallum ob feudarii juris inficiationem proprietate feudi mulctari That a Vassal or Tenant by Knight-service may if he deny the rights and observances due to the Lord of the Fee be deprived or punished by the loss of it Et contumacia quodamodo inficiationi feudi aequiparatur ex qua ingratus cliens ipsa etiam mulctaretur fundi proprietate Clientelaris and a contumacy or contempt of the Lord of whom the Client or Tenant holdeth his Land is somewhat like to the denyal of the Lord Rights whence it is that an ingrateful Client or Tenant may be punished by the loss of the Land for Reverentiam honorem debet vasallus Patrono nec eum offendere debet the Vassal or Tenant oweth reverence and honour to his Patron or Lord of his Land ubi à utem debetur reverentia vel ubi honor naturaliter est praestandus ibi est necessaria veniae impetratio for where Reverence is due or honour by the Laws of nature is to be performed there or in such cases the asking of leave or licence will be necessary from which our Common Law doth not much dissent when by King Henry the first his Laws Qui facit advocatum contra Dominum suum per superbiam perdat quod de eo tenet he which proudly and presumptuously retaineth an advocate against his Lord was to forfeit the Lands which he held of him and where leave is given unicuique se defendere in quolibet negotio to every one to defend himself upon all occasions there is an exception that it must not be contra Dominum quem tolerandum against the Lord whom he is to forbear and the words of the Tenant by Knights-service doing his homage wherein he doth say Jeo deueigne vostre home foyal loyal I become or acknowledge my self to be your man faithful and loyal carries with it an obligation of fidelity de vita membris suis terreno honore observatione consilii sui per honestum utile of life and members and of all earthly honor and observance and keeping his Counsel in all things honest and profitable saith the authentique or Red book of the Exchequer and the Tenants holding of his hands betwixt the Lords in the doing of his homage signifieth saith our Bracton Fleta and Coke reverentiam
in comming to the said Court or Courts there abiding or returning homewards without any Arrest of their Bodies Horses Goods and Chatels by any process out of any Inferiour Court Et habere debeant salvum securum conductum sub protectione defensione Regis Progenitorum suorum and in that respect were to have asafe conduct of the King his Progenitors and to be in their Protection and it was in former and less factious times not unusual to have such or the like Protections of our Kings for the Lands and Goods of the persons protected as well as for their persons to be allowed in our Courts of Justice witness the Writ to be found in the Register before or much about the 11th year of the Raign of King Edward the 3 d. entituled a Writ of Trespass contra protectionem Regis for molesting or troubling a man protected by the King directed to a Sheriff to attach the Defendant in these words of the commanding or mandatory part thereof Ostensur quare cum suscepimus in protectionem defensionem nostram praedictum A. homines terras res reditus omnes possessiones suas omnibus singulis inhibentes ne quis eis injuriam molestiam damnum inferret aut gravameâ— idem B. Bona Catalla praedicti A. dum sub protectione nostra sic fuit ad valentiam centum Solidorum apud H. inventa vi armis cepit asportavit in homines servientes suos insultum fecit c. per quod servitia sua amisit alia enormia c. ad grave dampnum c. contra protectionem nostram praedictam contra pacem nostram habeas ibi nota plegiorum c. To shew cause whereas when we took into our Protection the aforesaid A. his Lands Goods Tenants and all that he possessed prohibiting all and singular whatsoever that no man do or cause to be done unto him any injury damage or trouble the said B· the Goods and Chatels of the said A. whilst he was under our Protection to the value of five pounds at H. by force and arms did take and carry away and made an assault upon his Tenants and Servants c. whereby he lost their Services c. and did other injuries unto him c. to his great damage against our Protection and Peace and have you there at Westminster the names of his pledges or sureties c. With good reason therefore and much more in the case of the Kings Servants when it would be of a small avail for any man to be Priviledged or Protected in his person whilst he is employed in the Kings Sercice when all his Lands shall be seized or extended his Goods and Personal Estate taken away his Wife Children and Family starved undone or ruined and like Job stripped of all he had may be at liberty to complain of his misery and calamity and hear an impatient Wife blame him for being so careful to serve a King that would not or could not protect him And as little it would be for the good or dispatch of the Kings affairs when it cannot be so well done as otherwise it would by a man whose soul is grieved the faculties of his mind and understanding weakned and astonish'd his thoughts racked or tormented with cares and apprehensions of damage losses dangers or disgraces and cannot rest or follow his business as otherwise he would do but be looking homeward either to provide some remedy or comfort as well as he can for his sorrowfull Wife and Children to which many times his presence is so requisite as nothing can help or relieve them or himself without it and that surely which serves for a Reason or Justice in the case of a person not the Kings Servant in ordinary where he is specially imployed in his service should be as necessary or reasonable or rather more in the case of his Servant in ordinary who in such a trouble and sadness as appeared in the face of the good Nehemiah the Cup-bearer of King Artaxerxes when he heard of the great affliction and reproach of his Brethren at the distressed Jerusalem must when he shall he asked as Nehemiah was Why is thy countenance sad seeing thou art not sick it is nothing else but sorrow of heart be inforced to declare his sorrows to his Soveraign who when he shall be informed of the cause of it must be constrained to do as that tender-hearted King did to give such a troubled Servant leave to depart to his distracted Estate and in the mean time want his service CAP. V. That the Kings Servants whilst they are in his service ought not to be Vtlawed or prosecuted in order thereunto without leave or license first obtained of the King or the Great Officers of his most Hâ—nourable Houshâ—ld under whose several Jurisdictions they do officiate ANd to as little or no purpose would that antient and just Priviledge of the Kings Servants in ordinary not to be arrested troubled or imprisoned without leave first obtained profit them if whilst they shall be busied in attending the person of the King or some other of his affairs they may be sued to an Utlary and forfeiture of all their Goods and Personal Estate put out of the protection of the King and his Laws and thrust under the many damages inconveniences and incapacities which do way-lay and fall upon Utlawed persons and will be hugely contradictory to the right reason and intention of our Laws neither can any Sheriff retorn upon an Original Writ retornable in the Court of Common Pleas to which and no other Court except in the Court of Kings Bench in Actions of Trespass or upon the Case importing a breach of the Peace in all Civil Actions the prosecution of Writs to the Utlary doth only and properly appertain or upon a Bill of Middlesex a great encroacher upon the Rights and Jurisdiction of the Court of Common Pleas and a greater upon the Rights and Liberties of the people or an Action entred in the Sheriffs Courts in the City of London or of any other City or Corporation that any of the Kings Servants who were not wont to be either Beggars or Runagates nichil habet nec est inventus the later of which however now disused was antiently never omitted but as a companion in separable upon such Retorns of Writs went together with the former when as the Offices and Places in the Kings Court were not usually so poor or unprofitable as that they should be worth nothing or those that enjoyed them so willing to leave them as to run away from them And then certainly if by Law any such Retorns cannot in the case of the Kings Servants in ordinary be justly or legally made nor any Process of Capias or to arrest executed against them without a leave or license first obtained nor any Utlary without a Capias after that an alias Capias and afterwards a pluries Capias
were disseized by the said Earl John and thereupon the Court delivered their Opinion that what the King had done by word of mouth was more to be approved credited than what he had commanded by his Letters And our Bracton who ad vetera Judieia perscrutanda as he saith had used great diligence in the search and perusing of the Old Records of the Kingdom declareth the Law to be in his time That non debet esse Major in Regno suo there ought not to be any Superiour unto him in his Kingdom si autem ab eo petatur â—um breve non â—urrat contra ipsum locus erit supplicationi quod factum suum corrigat emendet but if he do not Justice when as no Writ can be had against him he is to be petitioned to do it quod quidem si non fecerit satis sufficit ei ad poenam quod Dominum expectet ultorem nemo quidem de factis suis praesumet disputare multo fortius contra factum suum venire which if he shall not do it will be enough to leave him to God for a punishment for no man is to presume to question or dispute his Actions much more to contradict any thing which he doth And since the Granting of the Great Charter of the Liberties of the People those Bounds which Regal Majesty hath been pleased to put to the Royal Prerogative it appeareth That in the first year of the Reign of King Edward the First it was adjudged and declared in the Court of Kings Bench Quod non est voluntas Regis quod Cartae suâ— concessae scilicet de Pardonatione Vitae tempore praetirito per ministros ipsius Regis disallocentur in prejudicium illorum quibus conceduntur that it is not the Kings pleasure that his Charters of Pardon for the time past shall be disallow'd to the prejudice of those to whom they are granted In the third and nineteenth year of that Kings Reign it was declared and allowed to be Law That Justiciarius non habet Jurisdictionem cognoscendi in aliqua loquela nec capiend ' aliquam Assisam nisi per Dominum Regem ad ipsius voluntatem si secus fecerit videtur Curiae quod de jure non fecerit That a Justice or Judge hath no Jurisdiction in any Plea or Action nor to try or take any Assise unless it be allowed or permitted by the King or by his Will and Pleasure and if the Justice or Judge shall do otherwise the Court was of opinion that by Law he could not do it In the nineth year of the Reign of that King it was adjudged That neque Barones quinque Portuum neque aliqui alii in Regno possunt clamare talem Libertatem quod non respondeant Domino Regi de contemptu sibi facto ubi Dominus Rex eos adjudicare voluerit Neither the Barons of the Cinque ports nor any other in the Kingdom can clame a Liberty not to be answerable to the King for any contempt where he will Call them to accompt for it In the eighteenth year of his Reign in the Case betwixt the Bishop of Carlisle and Isabell de Clifford and Idonea de Leybourne her Sister concerning the Advowson of a Church which he Claimed by a Feoffment thereof made by King Richard the First it was alleaged to be Law That nemini liceat Cartas Regias indicare nisi Regibus That no man ought to judge the Kings Charters but themselves In Hillary Term in the twentieth year of the Reign of that King in the great Case and Pleadingi betwixt the King and Gilbert de Clare Earl of Gloucester and Hertford and Humphrey de Bohun Earl of Hereford and Essex for that the said Earls had upon a Controversie betwixt them for Certain Lands in Brecknock and in the Marches of Wales armed their Tenants and with Banners displayed invaded each others Lands after the Kings prohibition when by a Commission granted to William Bishop of Ely William de Valence and others the King therein declared that although the said Earls should in the meane time agree yet if any thing should be attempted in prejudicium seu Contemptum vel etiam laesionem Coronae suae Dignitatis Regiae vel contra pacem c. post inhibitionem suam praedicto Com. Glouâ— pro statu et Jure Regis per predict Episcopum et sotios suos inde rei veritas inquireretur to the prejudice or in Contempt or hurt of his Crowne or Kingly Dignity or against the Peace after the Inhibition made to the Earl of Gloucester as aforesaid it should for the State and Right of the King be inquired by the Bishop and the rest of the Commissioners to the end the truth thereof might be found out it was in that Plea or Proceedings declared for Law and not at that time denyed Quod pro communi uâ—ilitate per Prerogativam suam in multis Casibus Rex est supra omnes leges consuetudines in Regno suo usitatas that the King is by his Prerogative in many Cases for common and publick good above the Law or any Customs used in the Realm and when exception was taken by the Earl of Gloucester to the Writ of Scire Facias which he alleaged ought to be a judicial Writ issuing out of a Process before had and not out of the Chancery as an original Writ Videtur it seemed saith the Record consilio Domini Regis to the Kings Councel which in that Case were the Judges of the Court of Kings Bench quod ex quo incumbit Domino Regi specialiter pro conservatione pacis suae et salvatione populi sibi Commissi quam cito rumor de tam enormi transgressione contra inhibitionem suam facta ad ipsum pervenerit in continenter debetur super hoc veritas inquiri per omnes vias quibus citius sine Juris offensa per breve illud propter exhibitionem celeris Justitiae unicuique indigenti praestando festimus patet remedium quam per aliquod aliud breve adhuc in casu isto provisum sive formatum ad intollerabilia mala evitand impediend veluti homicidia sacrilegia incendia depraedationes et alia enormia que preter mala prius illata emersisse potuerunt a casu nisi celerius remedium apponeretur in facto predicto That forasmuch as it specially concerneth the King for the keeping of the Peace and weal of his People committed to his charge as soon as ever he shall be informed of so great an offence against or contrary to his prohibition the truth thereof ought to be enquired by all the ways and meanes by which without contradiction or disturbance of the Law it may soonest be done and that by that Writ for the more speedy doing of Justice to every on that needed it there was a more speedy remedy afforded than by any other in that Case already formed or provided to prevent and
servitio suo continuo et quo casu respondebit vel indefensus remanebit et pro convicto habebitur quia per servitium Regis essoniari poterit alibi ubique in infinitum for that he is of the Kings Houshold and continually in his service and in that case must answer or not defending himself will be convicted when as he might otherwise in any other Court or Place have Essoined or excused himself as often as he pleased et servitium Regis nulli debet esse damnosum nec injuriosum being the very words of Bracton beforementioned and the Kings Service ought not to be a wrong or damage unto any And is notwithstanding of opinion that a defendant may be by his Essoin excused ex causâ necessariâ et utili aut causâ reipublicae for a necessary cause or occasion and where the good of the Commonwealth is concerned as surely it must be understood not to be in the safety well being and daily attendance upon the Person of the King as much or very neer the instance or case by him there put Si eat cum Rege in exercitu if he go in the Army with the King as all King Davids Servants did when he marched against his rebellious Son Absolom and as most or very many of the Servants of Kings and Princes do use to be ad patriae defensionem cùm ad hoc teneatur vel per praeceptum Regis when he goeth with the King to War for the defence of his Countrey being obleiged thereunto by the Tenure of his Lands or the Kings Commandement And having said that Pleas of Debt do belong unto the Court of Common Pleas concludes Sunt tamen causae speciales quae alibi terminantur ex permissione Principis per querelam coram senescallo Aulae ut in Scaccario cum causa fuerit Regi necessaria videlicet ne Ministri sui de Scaccario ab obsequio suo continuo quicquam impediantur There are notwithstanding some Causes which by the leave or good pleasure of the Prince are by Plaint to be determined before the Steward of the Houshold as also in the Exchequer when it shall concern the King that his Officers or Servants be not in their Business hindred So as then and for some time after it was not likely that any Inroads should be made upon that just and rational Priviledge of the Kings Servants For howsoever that even in those more frugal and thrifty days some of the Kings Menial and Houshold Servants might not then be so beforehand as it is now termed or so far from being indebted but that some Moneys or Debts might be demanded of them or there might be some occasion of Complaints or Actions to be brought against them Yet there appears not any probability or foundation for it that the Liberties and Priviledges of the Kings Servants were for many years after the twenty eighth year of the Reign of King Edward the First which limited all Actions before the Steward and Marshal of the Kings House to such Contracts and Actions only as were or should be made betwixt one of the Kings Servants with any other of his Servants disturbed or unsecured or that the Kings Servants were for many years after molested or troubled with the severe and disgraceful way of Imprisonments now used when the Chancellors and the Justices of the Kings Bench were by an Act of Parliament in the same year enjoyned to attend the King and his Court and to be there à latere tanquam famulantes always neer him and as Domestiques saith the Learned Sir Henry Spelman so that as the words of that Statute are the King might have at all times neer unto him some that be learned in the Laws which be able duely to order all such matters as shall come unto the Court at all times when need shall require Which the Chancellor and in all lâ—kelihood the Chief Justice did not neglect for saith Sir Henry Spelman Such Causes as nulli constitutorum Tribunalium rite competerent ad Palatium seu oraculum Regni were not limited to the determination or judgment of other Tribunals came to the Kings Palace as to the Oracle of the Kingdom and yet then the King was not without his more than one Attorneys or Procurators who were men learned in the Law And King Edward the third was so unwilling that his Servants should be drawn before other Tribunals as by a Statute made in the fifth year of his Reign where it was ordained That in Inquests to be taken in the Kings House before the Steward and Marshal that they should be taken by men of the County thereabouts to avoid it may be partiality and not by men of the Kings House there is an Exception of Contracts Covenants and Trespasses made by men of the Kings House of the one part and the other and that in the same House And the Chancellors of England were in former times so or for the most part Resident in the Kings Court and accounted as a part of his Family as until the making of the Act of Parliament in the 36 year of the Reign of King Edward the Third which did restrain the Pourveyance to the Kings and Queens Houses only and did forbid it to be made for other Lords and Ladies of the Realm the King did use to send his Writs to the Sheriffs of the Counties where they had occasion to make any Pourveyance for the Chancellor his Officers and Clerks some whereof as their Clerici de primâ formâ now called the Masters of Cbancery were ad Robas had and yet have an yearly allowance for their Robes or Liveries commanding them to be assistant to their Pourveyors the Chancery Clerks being in the 18th year of that Kings Reign so accompted to be a part of his Servants and Family as a Complaint or Petition being exhibited in Parliament by all the Clerks of the Chancery That whereas the Chancellors and Keepers of the Great Seal of England ought to have cognisance of all Pleas and Trespasses done unto or by any of the Clerks of the Chancery Thomas de Kislingbury Draper of London had forged the best word they would then bestow upon a Writ or Action not commenced as it ought to be by Original Writ issuing out of the Chancery a Bill of Trespass against Gilbert de Chishull one of the Clerks of the Chancery whereby to take away from the King and his Chancellor the Cognisance of the said Action which belonged unto them contre Common Ley de la Terre against the Common Law of the Land did by a Serjeant of the Mace in London arrest and imprison him in the House of John de Aylesham one of the Sheriffs of London and although the King sent a Supersedeas commanding the Plaintiff to surcease his prosecution there and that he prosecute the said Gilbert de Chyshull in Chancery if he have any cause of Action against him the Sheriffs of London
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
Bona Catalla sua quaecunque ac universos legales tenentes suos omnium singulorum maneriorum suorum in protectionem defensionem nostram suscepimus specialem The King to all unto whom these presents shall come sendeth greeting We considering the well accepted and laudable Services done as well unto us as our dear Mother Isabel Queen of England by our trusty John de Staunton and being therefore willing to honour him according to his deserts have made the said John a Knight of our Chamber and one of our Servants in Ordinary whilst he lives as well when he shall be absent as present And of our especial grace have taken into our special protection the said John de Staunton and all his Lands Tenements Goods and Chatels and likewise all his Tenants of his Manors Omnibus singulis nostris fidelibus tenore presentium firmiter inhibentes ne eisdem Johanni Terris Tenementis Bonis seu Catallis suis aut legalibus tenentibus maneriorum praedictorum malum molestiam prisas aut aliud impedimentum inferunt vel faciunt indebite vel injuste si quis eis injuriatum vel forissactum fuerit id eis debite reformari corrigi faciunt Streightly charging and prohibiting all our good Subjects that they do not unduly or unjustly endamage or molest the said John de Staunton his Lands Tenements Goods Chatels or his said Tenants and if any shall injure or wrong them therein that you do duly cause it to be reformed and amended And the Writs of Protection which our Kings of England have sometimes granted unto some which were imployed in their Service upon some special motives and reasons and were not his maenial or domestick Servants having been very often if not alwayes made and granted not only to protect the persons of such as were not the Kings Servants in Ordinary but specially imployed upon extraordinary occasions but de non molestando res terras tenementa homines which in the legal acceptation antiently signified their Tenants as well as their Maenial or Houshold Servants especially when instead of Rents or for some abatements made of them they Plowed and Sowed their Landlords Land Reaped their Corn and did many other Services belonging to Husbandry bona Catalla possessiones suas not to molest trouble or permit them to be troubled in their Estates Real and Personal Lands Tenements Servants Tenants Goods Chatels and Possessions and do agree with those priviledges which our Neighbour Princes of Europe and many other Nations have allowed their Servants And such or the like Protections are and have been an antient allowed priviledge not only to Foreign Embassadors but their Assistants Servants Goods and Chatels in the Dominions and Territories of Kings and Princes to whom they are sent and where they are resident Et sane quae potest tanta vis esse privilegii personae Legatorum si privilegium istis accessionibus non conceditur saith Albericus Gentilis And truly to what purpose will the priviledge of Embassadors be or enure if the Protection of their Estates as well as their persons should not attend their employments for where their persons may not be summoned cited or inforced to lay by or forsake his Service in the attendance upon the process of any of his Subordinate Courts of Justice there cannot by the rules of Common Justice and our Magna Charta that great piece of right reason and Justice be any Judgement had or obtained without appearane against them or any Execution thereupon against their Goods or Estate And it being so just and necessary for the Plaintiffs to demand Leave or Licence for the compelling of them to appear to their actions it will be as necessary becoming certainly to demand a second Leave or Licence to take out process of Execution upon any judgement obtained when as in the ordinaay course of our Laws and the intendment thereof every Plaintiff as the Records of our Courts of Justice will abundantly testifie is as it were by Petition to pray and ask leave to take out his Writ of Execution for that as the Judges may in their inferior Orbes sometimes find cause to Arrest or stay for a time some Judgements and Executions so certainly and much more in the Superior may the urgency of some present and necessary Service of the King and the Weal Publique the Kings Service and the publique being as inseparable as his Person and Authority Body Politique and Corporal require some pause or a Licence first to be demanded Such requisites and privileges drawn from the same Fountain of priviledges and reason being no otherwise in their effects then as to the joynt priviledges of Persons and Estates then the priviledges of Parliament and the Protections allowed unto the Peerage and Members of the House of Commons and their Maenial Servants in order to that publick affair and service of the King who doth not limit those favours only to their Persons and the personal service of their Servants attending upon them but do for that time comprehend and secure their Estates both Real and Personal and will not willingly permit so much as the minds of any of the Members of Parliament to be vexed by any disturbance of process or legal proceedings whilst they are employed and intended by Law to be only busied in those weighty occasions which they would be if the Real and Personal Estates of themselves or Servants which attended upon them were molested and troubled and therefore King Henry the 8th in his Speech to the Judges in the Case of his Servant Ferrers and a Member of the House of Commons in Parliament in the 33th year of his Raign said that his Learned Councel at Law had inform'd him that all Acts and Process coming out of any Inferiour Courts must for the time cease and give place to the Parliament as the highest of Courts and that whatsoever Offence or Injury is in Parliament time offered to the meanest Member of the House of Commons is to be adjudged as done both against the King and the whole Court of Parliament which was then assented unto by all the Judges of England then present saith Mr. Crompton and confirmed by divers reasons And well may it be so when it is and hath been not unusual for the Judges of the Court of Kings Bench or Common Pleas which do stand upon a less but legal Foundation to free or unattach Goods attached in the City of Lond. by their course or custom of Process of a man that had occasion to attend either of those Courts concerning some Suit or Suits there depending as to procure a Capias utlegatum against one c. and declare it to be a priviledge or liberty belonging unto those Courts in their several Jurisdictions to protect such persons in veniendo versus eandem Curiam ibidem morando inde ad propria redeundo absque arrestatione Corporum Equorum Bonorum seu Catallorum
granted that no Purveyance be but where payment is made at the taking that it would please him that that Ordinance be holden as it was granted The King doth not in express terms answer that the party should take his course at Law but only That it pleaseth the King that he that findeth himself grieved shall pursue it and right shall be done unto him In the 47th year of the Reign of King Edward the third the Commons did in Parliament although the Statute made not long before in the 36th year of his Reign cap. 2. gave them sufficient remedy and power to resist petition the King That the Statute made whereby buyers for the Kings Houshold should pay readily should stand and that no man be impeached for râ—sisting them therein To which the King answered The Statute therefore provided shall be kept and who will complain shall be heard In the 50th year of the Reign of the said King Edward the third the Commons in Parliament did petition the King That the Clarks of the Market for the Kings Houshold when as the Common Law and the Statutes of 9 H. 3. cap. 26 and 14 E. 3. cap. 12. had before given them sufficient remedy against Clarks of the Market should not by extortion take Fines in gross or certain of any Towns but that there might be appointed a certainâ—y of weights and measures according to the Standard and Statutes thereof made The King answered That he would be thereof advised In the same Parliament the Commons although the Common Law and the Statutes made in the 28th year of the Reign of King Edward the first and the 5th and 10th years of the Reign of King Edward the third had provided sufficient remedies did complain against the Court of thâ— Marshalsea to which the King answered â—he would charge the Steward and Officers to make redress And in the Parliament aforesaid petitioning the King That by Protections cum â—lausa Volumuâ— many men were undone and praying that one made to Jacob Jacomino a Lombard might be repealed and no such hereafter granted The King answered That upon examination of such had by the Councell it should if need be repealed And in the year next following petitioning the King in Parment That the Protections of such as did lye at Calais or about Picardy only to delay such as did sue them might be repealed and no such from thence granted The King answered That if his Councell should be informed of such covin it should be redressed And the Commons in Parliament in the same year of the Reign of that King though by a Statute made in the third year of the Reign of King Edward the first cap. 28. a Statute made in the 28th year of the said King cap. 11. a Statute made in the first year of the Reign of King Edward the third cap. 14. another in the 4th year of the Reign of the aforesaid King cap. 11. a Statute made in the 20th year of the said King cap. 4. remedies were for the same provided and there were divers Writs framed in the Register and to be thereupon had of course petitioning the King That none of his Officers be maintainers of any quarrels which the said Statutes did severely prohibit in the Countries on pain to lose their Offices and to answer double to the party grieved The King answered That he had forbidden his Officers so to do and if any be grieved he should be heard And in the same year when they had remedy given them by the Law against any the unjust dealing of Purveyors did petition the King That the Statutes made be not repealed but by assent of Parliament and that the Statute of Purveyance might be executed To which the King answered they cannot and that for the Purveyors the Law made should stand In the first year of the Reign of King Richard the second the Commons when there were Laws in force which might have saved them that trouble did petition the King in Parliament That no Officers of the Exchequer or of the Kings Houshold do maintain any quarrels in their Countries and that the priviledge of the Exchequer might be declared To which the King answered touching maintenance order is before taken and for further declaration it hath been used that all Officers of the Exchequer and Servants with them abiding should in all personal Actions be sued and sue in the Exchequer and not elsewhere In the same Parliament the Commons petitioning the King That the Jurisdiction of the Marshalsea which is a Court greatly concerning the Kings Houshold might be limited and that all men might have their Liberties allowed as well within the Virge as without and that no Court of Antient Demesne be thereby disturbed The King answered The Marshalsea shall have such Jurisdiction as heretofore and who will complain shall be heard And petitioning also the King in Parliament That every man might upon the Kings Protections averre that the party was not in the Kings service according to the 〈◊〉 of his Protection The King answered Tha◠〈◊〉 Averment lay not in such cases In the same Parliament the Citizens of London thinking to 〈◊〉 unto their heaâ—s of Liberties more then 〈◊〉 fitting or right reason could grant them did with much partiality petition the King That no Protection Royal might be allowed in Debt Accompt or Trespass wherein a Freeman of London should be Plaintiff Unto which as to Victuals bought after the voyage or service whereof the Protection mentioneth or for Debt or Contract after the date of such Protection purchased the King granted and it was enacted accordingly In the third year of the Reign of that King when but the year before the hindring and delaying of men in the pursuit and recovery of their just Debts was in the Parliament of the second year of that King in the case of Robert de Hawley pursued upon an arrest in an Action of Debt and slain at the High Altar in Westminster Abbey being then a Sanctuary to which he fled declared before the King in Parliament to be a grievous sin the Judges and Lawyers of the Land and the Doctors of Divinity Canon and Civil Law assenting thereunto And the Doctors of Divinity Canon and Civil Law upon grave and well advised deliberation delivering upon Oath their opinions That in case of Debt Accompt or Trespass where life or member was not in question no Sanctuary or Immunity of Holy Church ought to be allowed and in high expressions further said que Dieu salvez sa perfection ne le Pape salvez sa sanctitee ne nul Roy ou Prince purroit granter tiel privilege that God saving his perfection nor the Pope saving his holiness nor any King or Prince could grant such a priviledge Et si aucun Prince vorroit tiel privilege granter and if any Prince should grant any such priviledge the Church whose actions should be according to vertue was not
the Coasts of Guinee in Africa a Country not at all acquainted with learning or the more civilized Customes of Africa Europe or Asia those that they take for their Nobility have a liberty which the vulgar have not to trade in every place as they please sell and buy slaves have their Drums and Trumpets play as they think good before them and those who are advanced for any Noble Atcheivement have always the principal charges in the Army Nor should our Nobility or the Kings servants be debarred of any of their just rights or privileges when as per reductionem ad principia by a view and reflection upon the Original and causes of all those many priviledges and immunities granted or permitted by our Kings of England unto others of his Subjects and people it will appear that his own servants in Ordinary should not be grudged that which by so many grounds of law and right reason and the antient and reasonable Customes of England may be believed to belong unto them CHAP. XVII That the Immunities and Priviledges granted and permitted by our Kings of England unto many of their People and Subjects who were not their Servants in Ordinary do amount unto asmuch and in some more then what our Kings Servants in Ornary did or do now desire to enjoy FOr ab hac solis luoe from those or the like rays and beams of Majesty and emanations of right reason and necessity of the Kings affairs which notwithstanding the late groundless mad and fond rebellious principle of seperating the Kings person from his Authority and a pretended supremacy in the Parliament or at the least a co-ordination should not be disturbed came and was derived that grand priviledg of the Nobility and Baronage of England many of whom are not his Domesticks not to be molested in time of Parliament or forty days before the beginning of it in their coming unto it upon the Kings Summons and as many days after the end of a Parliament in their retorn to their Habitations though there is no direct way or Journey from their habitations to any place in England where the Parliament is to be kept or holden which can require so much expence of time as twenty days in travelling unto it or twenty days in retorning home by any Process Writs or Summons out of any the ordinary or extraordinary Courts of Justice law or equity the Baronage of England enjoying those priviledges in the 18 th year of the Raign of King Edward the first which were then not newly granted or permitted but were antient and justly and legally to be insisted upon as the punishment of the Prior of the holy Trinity in London not meanly fortified with his own priviledges and the power and protection of the Church and that also of Bogo de Clare who was imprisoned and fined two thousand Marks to the King at that time a very great sum of mony pro transgressione sibi facta for the trespass committed against the King for citing Edmond Earl of Cornwal in Westminster Hall in the time of Parliament to appear before the Arch-bishop of Canterbury whose spiritual Court and Power was then very predominant as hath been before mentioned and it appeareth in the Records of that Kings Raign that he refused to give leave to the Master of the Temple to distrein the Bishop of St. Davids in Parliament time for the Rent of an house held of him in London and answered quod non videtur honestum quod Rex concedat tempore Parliamenti sed alio tempore distringat that it would not be just or fitting for the King to grant such a Licence in time of Parliament but at another time he might distrein and by a very antient right are to be exempted from arrest and the Ordinary Course of Process when there were no Parliaments The Writ of Summons directed to the Sheriffs for the Election of two Knights the wisest and most discreet of every Shire and County of England the County Palatine of Chester then only excepted and for two Burgesses to be sent unto Parliament out of the Cities and certain Boroughs of England the King in the Parliament being without suspition of any unwarrantable conjecture to be rationally believed to have been first framed and sent out in K. Henry the thirds name in the 49 th year of his Raigne by the Earls of Leicester and Gloucester after the Battle of Lewis in Sussex wherein he and his Son Prince Edward afterwards King Edward the first were taken Prisoners by them and other the Rebellious Barons who had taken armes against him as my learned and worthy friend Mr. William Dugdale Norroy King at Armes by comparing the date of those Writs the one bearing date the 14 th day of December at Worcester in the 49 th year of the Raign of that King and the other at Woodstock the 24 th of December in the same year to meet at London on the Octaves of St. Hiâ—lary then next ensuing with the day or time of that Battle and that Kings imprisonment hath after it had for so many Ages past escaped the Industry Inquiries Observations and Pens of all other our English Writers Annalists Chronicles Antiquaries very judiciously and ingeniously observed which Summons of the Commons to Parliament doth not saith Mr. William Prynn appear to have been put in Execution untill about the 23th year of the Raign of King Edward the first whence by Regal Indulgencies and no Innate or Inherent right of their own but ab hoc fonte from the same spring and fountain of the attendance and affairs of the King proceeded the priviledges of Parliament for the Members of the house of Commons in Parliament to be free from actions at Law or Pleas in time of Parliament as Early as the raign of King Edward the second when he sent his Writ or Proclamation to the Justices of Assize in all the Counties of England to supersede all actions against the Barons and others summoned to Parliament In the 11 th year of the raign of King Richard the second upon a riot and trespass committed upon the Lands Goods Servants and Tenants of Sir John Derwintwater chosen to be a Member of Parliament for the County of Cumberland a Commission was granted by that King under the great Seal of England to Henry de Percy Earl of Northumberland to inquire by a Jury of the County of Westmerland concerning the same and to cause to be arrested and taken all that should be found guilty thereof and to appear before the King and his Councell wheresoever he should be 15 days after the Michaelmass then next ensuing In the fifth year of the Raign of King Henry the fourth the Commons in Parliament alledging that whereas according to to the Custome of the Realm the Lords Knights Citizens and Burgesses coming to Parliament at his Command and there staying and in retorning to their Countrys ought With their men and
married him To which Information the Sub-Escheator pleading that he did not seize the Lands which he that followed the Suit for the King proved that he did and Reginald de Legh pleading that the said Ralph before his death upon view of the said Wards Writings and Evidences finding that he had no Right thereto did acquit and release it and that the like appearing to the said Reginald by the sight of the said Writings he did satisfie and agree with the Friends of the said Ward for the said Marriage but confessed that he did take notice that the Sub-Escheator had seized the said Lands but the said Sub-Escheator perceiving that the King had no Right thereunto did relinquish it to the Friends of the said Heir And as well the said Reginald as the said Sub-Escheator petunt dicunt quod si videatur consilio Domini Regis quod in aliquo deliquerunt quod Dominus Rex suam inde faciat voluntatem did petition and pray that if it should appear to the Court that they had offended in any thing the King might do his Will and Pleasure therein a Modesty and Submission too little used now of later Times whereupon the Court declaring Quod potius pertineat Ministris Domini Regis maxime Justiciariis suis Statum Domini Regis jura Haeredis in custodia ipsius Regis Existentium manu tenere quam in aliquo infringere That it belong'd rather to the Ministers and Officers of the King more especially his Justices to maintain his Estate and the Rights of the Heir within his custody than in any thing to infringe them did adjudg that the said Reginald and Sub-Escheator should be sent prisoners to the Tower there to remain during the Kings pleasure and that the said Reginald should satisfie the King for the Marriage of the said Heir and the said Lands should remain in the Kings hands with a Salvo Jure saving of the Right of all Pretenders thereunto In the three and thirtieth year of the Reign of the aforesaid King upon the Petition in Parliament of Ranulph the Son of Hugh le Mareshal that whereas he was Demandant by a Writ of Entry against the Rector of Ashrugg for a Messuage and divers Lands and he alledged that he could not answer without the King It was answered Rex vult quod respondeatur quod Justiciarii procedant sed certificent Regem super hoc ante redditionem Judicii c. The King willeth that the Tenant do answer the Demandant and that the Justices do proceed but certifie the King thereof before they give Judgement And if then and ever since our Kings have had a Super-intending decision and confirming Power of Judgement in matters of Justice and that without it nothing can by our Laws and reasonable Customs be done in Parliament the highest of all their Courts where the King is as it were the Ens Potentiale and is no less than the Constituent Principle and Soul that animates all their Sanctions where the Laws and Judgements receiving life and vigor from Him and have their Energy do not seldom appear to have been made with Rex voluit the King willeth Rex providit the King provideth Rex mandavit the King commandeth Rex statuit the King appointeth Rex ordinavit the King ordaineth c. all the Courts of Justice and Equity in Westminster Hall and all the Inferior Courts of Justice will not be able to produce if Prescriptions could avail against the Kings Rights and Means of Government any Prescription or any Law Custom or Allowance to exempt them from the Kings Supream Jurisdiction whose Royal Ancestors and Predecessors did heretofore upon all extraordinary occasions so much praeside and intermeddle in their Courts of Justice as Fleta an Author of good account who as hath been before mentioned did about the later end of the Reign of King Edward the Second or the beginning of the Reign of King Edward the Third write his Book of the Laws of England and Customs of Courts at that time used doth declare the usage then to be That when the King in his Progress or Removal from his Palace at Westminster to any other County or Place to reside for a time as our Kings did heretofore often use to do and was in any other County the Steward of his Houshold as Deputy to the Chief Justice issued forth his Writ to the Sheriff of the Place or County where the King was to reside to cause to come before him at a certain day wheresoever the King should be in his Bailywick all Assizes of Novel Disseisin Mort d'Auncester last Presentations Grand Assizes all Juries Inquisitions and Attaints Pleas of Dower and which were summoned to be determined before the Kings Justices at the first Assizes when they should come into those Parts And all Pleas Juries Inquisitions and Attaints assigned to be heard before the said Justices but were not determined giving the parties a day to prosecute if they pleased and likewise to come before them at a day prefixed And to cause to be brought before them all Prisoners Bails and all Attachments which appertain to the Goal-Delivery quod quidem mandatum frequentur retro trahitur per ejusdem Senescalli mandatum Which Tryals might notwithstanding saith Fleta be recalled by the Stewards Mandate which would necessarily produce some delay of Justice or disturbance of the Peoples affairs or expectations Eo quod Rex forte novis emersis propositum suum mutaverat in regard that the King upon some new Emergencies had altered his minde or purpose But if the King did not decline or forbear his intended Progress then was holden the Goal-Delivery by the Steward And all Duels or Tryals by Battels Appeals and all criminal Matters were determined by him with what conveniency he might and afterwards all Causes concerning Trespasses done within the Verge and after that the Assizes and Juries Obligations and Contracts wherein the Debtors had of their own accord bound themselves to be tryed before the Steward and Marshall of the Kings House placita autem quae ibidem terminari non poterint de Comitatu in Comitatum die in diem poterit adjornare vel in Banco vel ad primas Assisas vel alibi secundum quod fuerit faciend ' donec fuerunt omnia terminata but those Pleas which could not be there determined were to be adjourned from day to day or County to County or to the Common-Bench or unto the first Assizes or elsewhere as it should be thought meet until all were rightly determined Et haec omnia ex Officio suo licite poterit facere non obstante alicujus libertate And all this he might by his Office lawfully do notwithstanding any mans liberty And surely such a Super-intendency of the Soveraign was as much allowed to be Law as Reason in the nineteenth year of the Reign of King Henry the Sixth when upon an Affray in London for rescuing a Soldier a
Lands in antient Demesn to the prejudice of the Lord and for those that are Summoned to the Sheriffs turn out of their own Hundred a Writ de libertate allocanda for a Citizen or Burgesse to have his Priviledge allowed when he is impleaded contrary thereunto and a Writ de Consuâ—tudinibus servitiis a Writ of right close against a Tenant which deforceth his Lord of the Services due unto him and a Writ to exempt a man from the view of Frank pledge when he is not there resident although all men are obliged thereunto by reason of their Lands not their habitation and as Bracton saith a view of Frank pledg is res quasi Sacra quia solam personam Regis respicit introducta sit pro pace utilitate Regis as it were a Sacred matter or thing in regard it taketh care of the Kings person and was introduced for his Peace and Profit should by the rule of gratitude if there were nothing of right or duty to perswade it not tell how to obstruct that so antient Claim of Priviledge of the Kings Servants when it will ever be as Consonant to Law and right Reason for the Kings Servants not to be disturbed or prejudiced in their duties and attendance upon the King as it is for any others Of his people and Subjects being not his Servants when by a Statute made at Gloucester in the 30th year of the Reign of King Edward the first the King himself as that Act of Parliament mentioneth providing for the Wealth of the Realm and the more full Administration of Justice as to the Office of a King belongeth the discreet men of the Realm as well of high as low degree being called thither it was provided and ordained that when men were to claim or shew their Liberties within a time of 40 days prefixed and were before the King that is to say in his Court of Kings-Bench where himself is by Law supposed to sit they should not be in default before any Justices in the Circuits for the King of his especial grace hath granted that he will save that party harmless and if the same party be impleaded upon such manner of Liberties before one or two of the aforesaid Justices the same Justices before whom the Party is impleaded shall save him harmless before the other Justices and so shall the King also before him when it shall appear by the Justices that so it was in Plea before them and if the aforesaid Party be afore the King so that he cannot the same day be before the said Justices in their Circuits the King shall save that party harmless before the aforesaid Justices in their Circuits for the day whereas he was before the King And not at all agreeable to reason that the Franchises and Liberties granted by our Kings to the Counties Palatine of Chester Lancaster Durham the Cinque ports the City of Gloucester with the Barton or little Territory so called annexed unto it the large extent of the Liberty of the Bishop of Ely that of ten Hundreds to the Bishop of Winchester in or near Somersetshire Seven Hundreds in or near Gloucestershire Claimed by Sir Robert Atkins Knight of the Bath the large extents and compass of the Liberties and Soke of Dâ—ncaster in the County of York and of Sheffeild Rotherham and Hallomshire in the same County Grantham and its large Soke and Liberties in the County of Lincoln Tindall in Hexamshire in the County of Northumberland and many an hundred more of Liberties and Franchises not here specified exclusive to all others intermedling therein should by the power of the Kings Grants or Allowance and a just reverence and respect of their Neighbours and Tenants have and enjoy a Priviledge and Civility not to have their Servants Arrested or Imprisoned without complaint first made to their Lords or Masters or leave asked upon any of the Writs Process or Warrants of their own Liberties or Courts before they suffer their Bailiffs or Officers to Arrest any of their Servants or upon the Warrants or Process of any other the Kings Courts untill a Writ of non omittas propter aliquam libertatem claimed by them shall be after a not Execution of the first be awarded either or both of which may give a sufficient or large respite for the parties Prosecuted to satisfie pacifie or prolong the patience of an eager or furious Creditor and that the King who gave and indulged those Liberties should not be able to deserve or command a like Licence in the Case of any of his own Servants to be demanded of him either upon a Process made out by the owner or his Substitutes of the same Liberties or any other Warrant or Process directed to the Owner or his Subordinates of that Liberty Or should not have as much Priviledge for his Servants as the Miners in the Peak-hills in Derbyshire or those of the Stanneries in Devonshire and Cornwall not to be Sued or Prosecuted out of their Berghmote or Court of Stanneries or disturbed in their Works or business Or that his Servants should not as well deserve their Priviledges to be continued unto them as the Kings Tenants in antient Demesn who upon the only reason and accompt that they were once the Kings Tenants and did Plow and Sow his Lands for the maintenance and Provision of his Houshold and Family are not yet by the Tenure of those Lands of which there are very many Mannors and great quantities in England Ousted of those their Immunities or denyed them but the very Tenants at Will who are as they say here to day and gone to morrow do claim them and are not in any of the Kings Courts of Justice debarred of those exemptions although those Mannors and Lands are very well known to have been long ago Granted away and Aliened by the King or his Royal Progenitors since passed from one Owner to another for many Generations the effect by an Indulgence Permission or Custom contrary to the general and every where approved Rule or Maxime that cessante causa tollitur effcâ—tus the cause or reason of the thing ceasing the effect should cease continuing after the Cause ceased in so much as many do now enjoy those Priviledges who are no Tenants of the King neither have any thing to do with his most Honourable Houshold or have any Relation thereunto For if all the depths of Reason and Humane Understanding were Sounded Searched and dived into by the Sons of men all the Ingenuity of Mankind will never be able to find or assign a Cause or Reason why the House of Commons in Parliament have heretofore Petitioned our Kings for a Freedom from Arrests or Imprisonment or to Punish any the Offenders therein if they had any doubt of his want of a legal Power and Authority therein to grant it or why the business or Service of the King concerning himself or the Weal Publick should so
Occasion what was the Reason the Lord Mayors Officers were not to be put upon such Offices and was answered with a Reason given because they were to attend him Replied do not you think that to be a Reason as much or more in my case as your own Must Westminster the Abby or Church whereof was first founded by King Lucius a Brittish King upon a piece of Land so incult as it was called Thorney or the Island of Thornes then accompted to be two miles distant from London measured it may be unto Ludgate and after the better building and enlarging thereof by King Edward the Confessor honoured as it hath been ever since Regum nostrorum sepultura Regalium repositorium with the usual and designed place of the Buriall of our Kings and the Custody and keeping of the Royal Vestments and Ornaments used at their Coronations an Honourable Office and Trust now Claimed and enjoyed by the Dean of that Collegiate Church confess and acknowledge that by the happy Neighbourhood of our Kings Royal Palace near adjoyning together with their High Court of Chancery Courts of Justice and Exchequer the receipt of their once great and largely extended revenue attending therein help and succour of the Royal Houshold and Hospitality and those Crums of Comfort Meat and Drink and Provisions not used fragments broken meat offall and wast of the Wine and Food which dayly came from the many plentifully furnish'd Tables and expence of Victuals of the Kings house Servants and retinue Fed and Nourrished many of her Families by which and many Priviledges granted unto her by our Kings is now from a shrub come to be as one of the Cedars of our Lebanon and augmented and encreased from a few scattered Cottages Sheds Booths and Tents about the Abby and the Kings house and Palace to a Village from a Village to a Town and from a Town to a City with a Pomerium Fauzburgs or Suburbs so large as it stretcheth it self from Tutlefields in a continued Building and Streets to Temple-Barre and the Inns of Court and in many other places is so contiguously joyned to London as it makes her self to be as it were her younger sister And must she not blush at the same time that any of her Inhabitants should Exercise or be guilty of so foul an Ingratitude as to Arrest without Licence any of the Servants of the King whose Royal Progenitors and Predecessors have nursed and brought her to that perfection And hath London like the Members of the body natural found herself as to her retayling Trade to be the better when it was nearer to the head and heart and did therefore so follow the warmth and hopes of Gain and increase of Trade and Imployment thereby as she hath swelled her Suburbs bigger than her self As although her Forreign Trade is brought unto her from the Sea and Eastward yet she hath immensly built her self as the ingenious Mr. Grant one of her Citizens hath of late observed Westwards to be as near as she could unto her Kings Palace and his Courts of Justice which not only daily receiveth the feet of many of the people of the Nation but of Strangers coming as far as ever the Sheban Queen did to Solomon Can any of her Citizens be so stupid or ingratefully ignorant as not to understand that that great City and the Commerce and Gain thereof which is now so highly valued by them is and hath been by the Neighbour residence of our Kings and Princes and their Courts of Justice so greatly as it appears to be enlarged and multiplied in their Inhabitants Riches variety and Excellency of her Artificers Magnificence State and Beauty of her Churches and Buildings And hath so much extended her Trade and Merchandise both by Land and Sea through all the Circuite and Travails of the Sun and to the utmost parts of the Earth as her multitude of Ships at Sea and a floating Forrest as it were of them daily or weekly going out and returning home upon the River of Thames hath made her one of the greatest Emporiums in the World and Glorious in the midst of many Waters in so much as she hath by her strength and Honour at Sea and her Might and Interest at Land Hang'd the Shield and Helmet in her set forth her Comelines and made her self not only the Mistress of the Trade of our Isles at home but of our many growing rich Plantations in America And can that City of London the magazine of Mechanick Arts and multitudes of People as it is at this day and taketh her self to be not a little honoured by being called the Emperial Chamber of our Kings of England Have so little acquaintance with the Dictates of reason and gratitude or a care of their own Interest as to forget the Founders and Cause of that their Plenty and Happiness and upon every little occasion of a Debt or money owing them to Worry take by the Throte Arrest and Imprison any of the Kings Servants with the Pay me what thou owest me when more than half of it and much of it unjustly was gained of the Debtor and at the same time refuse to pay unto the King the Master of that Servant the debt of Gratitude Duty Honour Reverence good Manners and Civility which they owed unto him either of which would have shewed them the way to complain unto him of such and indebted or ill dealing Servant and Petition for his leave or Licence to Arrest or out-law him before they do it When they that do so much and undutifully undervalue his Courts Servants and Royal residence and Neighbourhood may be assured by the Annalls and Histories of England that their Predecessors in the Reign of King Richard the 2d when their Forreign and home Trade was not the Tenth of what it is now as the small Revenue of the Customs in the latter end of the Reign of Queen Elizabeth will manifest when the highest improvement of her Care and Carmardens discovery could bring her Customs and Profits by Merchandise but to 50000 l. per annum were so sensible of that Kings removal of his Court from London displeasure and Indignation heightned by a Riot committed upon the Servants and house of the Bishop of Salisbury Lord Treasurer for that one of the Bishops Servants had taken a horse loafe out of a Bakers Basket as he passed along the Streets for which notwithstanding the Mayor and Aldermen had appeased the Tumult the Liberties of the City were seised into the Kings hands the Mayor Committed to the Castle of Windsor and the Aldermen and some other substantial Citizens to other Castles a Warden appointed to Governe the City as they deemed themselves in a lost and ruining Condition untill by the special Suit of the Duke of Gloucester they had procured the King upon the Payment of Ten thousand pounds and many rich gifts presented to him and the Queen to return to London where with great joy they
subjectionem Reverence and subjection and being then unarmed and his sword ungirt denoteth that he is never to be armed against or opposite to his Lord which by prosecuting or arresting any of his servants without leave he may well be deemed to do and in that faedere perpetuo as to them eternal league betwixt him and his Lord is not saith Bracton propter obligationem homagii by the obligation of his homage to do any thing quod vertatur domino ad exhaeredationem vel aliam atrocem injuriam which may turn to the disheriting of his Lord or other great injury which a sawcy and unmannerly arrest and haling of his servants to prison without licence first obtained hindring thereby his dayly and special service wherein his health safety and honor may be more than a little concerned endangered or prejudiced must needs by understood to be which if he shall do justum erit judicium quod amittat tenementum it will be just that he should lose his Land and our Writ of Cessavit per 〈◊〉 by which the Tenant if he perform not his services to his Lord within two years shall have his Land recovered against him redeemable only by paying the arrears of rents if any and undertaking to perform his services better for the future bespeaks the same punishment a certain conclusion will therfore follow upon these premisses that all such as did before the conversion of Tenures in socage hold the King their Lands immediately in Capite and by Knights service ought not to sue or molest any of his servants without license and although that inseparable Incident of the Crown and most Antient and noble Tenure of Chivalry and military service is now as much as an Act of Parliament can do it turned to the Plow or socage Tenure yet the fealty which is saith Sir Edward Coke included in every doing of homage which being done to a mesne Lord is always to have a Salva fide saving of the Tenants faith and duty to the King his heirs and Successors doth or should put all that are now so willing to hold by that tenure and to leave their Children and Estates to the greedy and uncharitable designs of Father-in-Laws under the conditions and obligations of fealty in mind or remembrance that by the fealty which they do or should swear unto the King and the oath of Allegiance which containeth all the Essential parts of homage and fealty which are not abrogated by that Act of Parliament for alteration of the Tenures in Capite and by Knights service into free common socage and the Oath of Supremacy to maintain and defend the Kings Rights Praeheminences and Jurisdictions cannot allow them that undutifull and unmannerly way of Arresting Molesting or Imprisoning any of the Kings Servants without leave or licence first had and that a Copyholder in Socage forfeits his Lands if he speak unreverent words of his Lord in the Court holden for the Mannor or goeth to any other Court wherely to intitle the Lord thereof to his Copyhold or doth replevin his Goods or Cattel upon a Distress taken by the Lord for his Rent or Service or refuse to be sworn of the Homage which in Copyhold Estates is not taken away by the Act of Parliament of 12 Car. Regis Secundi for the taking away of Homage upon Tenures in Capite and by Knights Service And where a Copyhold Tenant against whom a Recovery is bad cannot have a Writ of false Judgement he hath no other remedy but to petition the Lord to Reverse the Judgement nor can have an Assise against his Lord but may be amerced if he use contemptible words in the Court of the Mannor to a Jury or without just cause refuse to be of it that all the Lands of England are held immediately or mediately of the King that every Freeman of London besides the Oaths of Allegiâ—nce and Supremacy takes a particular Oath when he is made Free to be good true and obeysant to the King his Heirs and Successors and doth enjoy all the Liberties and Freedome of the City Trade and Companies by and under them And that they and all other Subjects his astricti Legibus which are under such Obligations cannot by their Homage Fealty Tenure of their Lands natural Ligiance under which they were born and Oaths of Allegiance and Supremacy without violation of them and the hazard of their dreadfull consequences incroach upon those just and rational Rights and Priviledges of the Kings Servants confirmed by as many Acts of Parliament as our excellent Magna Charta of England hath been at several times after the making thereof at the granting of which King Henry the 3 d. took such care of his own Rights and Priviledges as by his Writ of Proclamation to the Sheriff of York wherein mention being made that he had granted to the people the Liberties mentioned in the Magna Charta which he would have to be observed he commanded him nevertheless that all his own Liberties and priviledges which were not specially mentioned and granted away in that Charter should be specially observed as they were used and accustomed in the times of his Auncestors and especially in the Raign of his Father King John For our allegiance due to the King being vinculâ—m arâ—tius a more strict tye betwixt the King and his Subjects ingaging the Soveraign to the Protection and just Government of his people and they unto a due Obedience and Subjection unto him by which saith the Custumary of Normandie â—i tenentur contra omnes homines qui mori possunt vivere proprii corporis praebere consilium adjuvamentum ei se in omnibus Innocuos exhibere nec ei adversantium partem in aliquo fovere to give him councel and aid against all men living and dying to behave themselves well towards him nor to take any ones part against him will leave such infringers of his Royal Rights and Piviledges inexcusable for the dishonour done unto him by Arresting Molesting or Imprisoning his Servants upon any Actions or Suit without leave or licence and at the same time when many of them do enjoy the Priviledges of HAMSOCNE a word and priviledge in use and practice amongst our Auncestors the Saxons or questioning and punishing of any that shall come into their House Jurisdiction or Territotory by the gifts grants or permission of the King or some of his Royal Progenitors deny or endeavour all they can to enervate the Rights and Liberties of him and his Servants when they may know that he and his Predecessors Kings and Queens of England have and ought to have an Hamsocne Ham in the Saxon Language signifying domus vel habitatio an house or habitation and Socne libertas vel immunitas a liberty immunity or freedom to question and punish any that shall invade the Liberties and Priviledges belonging to his House Palace and Servants vel aliquid aliud faciendum contra
being all three of them with fifteen dayes betwixt the Testes and Retorns first and successively to be retorned as now the manner of retorning them of course is usually before any Exigent can be awarded in order to an Utlary if the Defendant do not appear before unto the Action whether Civil or Criminal to prevent it which so often repeated process and warnings the Law doth so strictly enjoyn as in the Reigns of King Henry the 4th and King Henry the 6th Utlaries have been reversed for that the Exigent was awarded to Utlaw the Defendants upon the second Capiaâ— There cannot be any just or legal possibility of Utlawing of them although they be neither Great Officers of State nor of the Kings Privy Councel or of the Baronage who by reason of their eminencies high degrees and qualities are alwayes to be excepted from those ordinary kinds of Process For if any of the Kings Servants in ordinary should be wronged by any such false Retorns which must necessarily fore-run and open the doors of the Process of Exigent the Prologue or Ushers to an Utlawry they are and ought to be as justly entituled as any of the common people of England are to an Action of the Case against the Sheriff or any other who shall make or cause to be made any false Retorn quod nichil habet that he had nothing when as many of them have good or great or some Estates in Lands and Freehold in the County or place where the Action is laid or quod non est inventus was not to be found in his Balywick the later of which was in former ages used to be so ill resented as in the Reign of King Edward the 3d. an Action was brought against one for retorning upon a Writ quod non est inventus that he was not to be found whereby a Capias or Writ to arrest him was awarded against him And as much against the mind of the Law it would be and a very great distance from truth and reason that the King in the usual process and proceedings unto or towards an Utlary should cause an Original Writ to be directed unto the Sheriff of Middlesex who is by Law to execute no Writ in his Court or Palace to command one of the Kings Servants to pay a Debt demanded by the Plaintiff or if he did not to summon him to appear before his Justices of the Court of Common Pleas at Westminster to shew cause why he did not when his own Officers of his most Honourable Houshold upon leave obtained to prosecute the Debtor in the Court of Common Pleas were more properly to have made that summons should upon a nichil habet nec est inventus that he hath nothing or is not to be found retorned upon such an Original Writ by Clerks or Attorneys of course without the warrant or privity of the Sheriff in whose name it is retorned and to whom it is directed suffer a Capias in his Name and under his Seal to arrest or take his body to be issued out against his Yeoman of the Robes or his Physicians in ordinary or some other of his Servants in ordinary necessarily attending him not by courses as many other are by the indulgence of his Royal Majesty for the ease of his Servants permitting them to officiate by turns which within a few weeks or months brings them again into their duty and places of attendance but constantly every day and night in the year And should upon a non est inventus retorned of course as aforesaid when the time or day prefixed in that Writ of Capias is expired suffer in his Name and under his Seal another Writ of alias Capias to be made to the said Sheriff commanding him to arrest or take the said Yeoman of his Robes or any other of his Servants in ordinary whom he knows not to be absent from his service or affairs and upon a like feigned and false retorn of course upon that Writ when the time prefixed for to arrest him is expired cause or command a Writ of pluries Capias to be made or issued out against him and upon the like feigned and false retorn made upon the said Writ of pluries Capias when the time prefixed to arrest him is expired cause a Writ of Exigent to be issued out commanding the Sheriff in five several County Court dayes to call the said Yeoman of the Robes or such other his Servant in ordinary and if he appear to take him if not to retorn him Utlawed and should likewise at the same time issue out at the request of the party Plaintiff his Writ of Proclamation directed to the Sheriff of the County where his Family resided to be proclaimed at two several County Court dayes and a third time at the Parish Church door upon a Sunday immediately after Divine Service ended commanding the said Yeoman of the Robes or such other his Servant to appear and render himself to the Sheriff otherwise to be Utlawed when he knows he was at that instant of time and would be at other times prefixed busie and imployed in a near attendance upon his Person or that the Yeâ—man of his Robes or such other Servant in ordinary should be Utlawed upon an intendment or supposition in Law that after so many iterated contempts of the King and his Process or Writs being twelve in number that is to say a contempt upon not appearing upon the Original Writ three several contempts upon the Capias Alias and Pluries five other contempts in not appearing at the five Husting dayes if the Action had been laid in London or five County Court dayes if the Action were laid in any County and three several contempts in not appearing upon the Proclamation when he either knew not of the Process as it very often happens or if he did take notice of them refused to appear to the said Action because his business about the Kings own person and affairs would not permit him And should thereby subject him to all the mischiefs and inconveniences of an Utlawed person and that fierce Process of Utlary called a Capias Vtlegatum and command a Sheriff to enter into any Liberties as if he intended such Servants might be taken in his Bed-Chamber or his Court which no Law or Custom hath hitherto permitted or held fitting or reasonable and seize his Person Lands and Goods and Lease and Demise away his Lands to the Plaintiff untill he shall appear and answer the Action and the King for the Contempts in not appearing thereunto when as it was the Kings own necessary affairs and business that hindred him and he was at that instant of time busied in his duty and attendance upon his person and cannot be restored unto the benefit of the Laws and the Birth-right of a Subject untill he shall have reversed the Utlary by Plea or Error or as the usage of the Law was in the time of King Henry the 4th and long after that the
out and Sealed by Officers and Clerks of the Court whence they issued without the privity or knowledge of the King or his Lord Chancellour or Keeper of the Great Seal of England or the Judges of the Court of Common-Pleas and that if those Writs which now and for many yeers past to the great ease of the people have been made in an ordinary way and course at smal rates and charges as anciently as the Raign of King John and King Henry the third should have been made by the privity of the Chancellour or Chief-Justice or of the King himself or granted upon Motion or Petition and read and recited in the Kings presence or in Court by or before the Chancellor or Chief-Justice when such Actions Writs or Complaints were few and seldome yet when afterwards they should appear to be mistaken too sodainly or erroniously granted or that the King or the Court have as in humane affairs it may often happen been misinformed or deceived therein such Writs or Process surprize or mistake may be revoked and rectified and the Writs and proceedings thereupon contradicted by the King or his Authority as hath been done in the Writs of Supersedeas to the Barons of the Exchequer to stay their proceedings in Common-Pleas or to the Marshalsea of matters wherein they have no Jurisdiction that known Rule of Law declaring the Kings Letters Patents of the Grant of Lands to a man in Fee or Fee Tayl to be void where the King is deceived in his Grant or as King Henry the 3d. superseded his Writ de Excommunicato capiendo to Arrest or take an excommunicated person because he was circumvented in the granting of the Writ or made void his Conge d' Eslire to the Priory of Carlisle confirmed an election upon a former Conge or licence or as is often done by that common usual way of Supersedeas made by the King upon matters ex post facto or better information or by his Justices and Courts of Justice by Writs of Supersedeas quia improvide or Erronice or datum est nobis intelligi in regard of misinformation Error or better information or in the vacating of Recoveries Judgments discharging Actions for abuse of the Courts or ill obteining of them or their Writs Process freeing of prisoners taken Arrested by Writs or Process not duly warranted And that such an indirect and feigned prosecution of the Kings Servants to the Utlary designed only to abridge the King of his regal Rights forfeit and annul the Priviledges of his Servants and obstruct and hinder his service and attendance aswell deserves a punishment as that which was usual in our Laws in the Reigns of King Henry the 3d. and King Edward the 1. for indirect recoveries or Judgments obtained by a malitious surprize falshood or non-Summons as the ensuing Writ will evidence Rex vic Salutem praecipimus tibi quod habeas coram Justitiariis nostris c talem petentem scilicet ad audiend Judicium suum considerationem Curiae nostre de hoc quod ipse per malitiam manifestam falsitatem fecit disseysiri talem de tanta Terra cum pertinentiis c. Et unde cum ipse B nullam haberet summonitionem optulit se idem A versus eum itaqd terra capta fuit in manum nostram semel secundo per quani defalt idem A terram illam recuperavit desicut illa defalta nulla fuit ut dic catalla ipsius B in eadem terra tunc inventa ei occasione praedâ—cta ablata eidem sine dilatione reddi facias restitui Praecipimus etiam tihi qd habeas coram c. ad eundem Terminum A B per quos summonitio prima facta fuit in Curia nostra Testata praeterea quatuor illos per quorum visum terra illa capta fuit in manum nostram per quos captio illa testificata fuit in Curia nostra c. etiam illos per quos secunda summonitio facta fuit testata ad certificandum Justitiarios nostros de praedictis Summonitionibus Captionibus Et habeas ibi hoc breve Teste c. The King to the Sheriff talis loci County or place sendeth greeting We command you That you have before our Justices c. such a Demandant that is to say to hear the Judgement Order of our Court in regard that he by malice and manifest fraud caused such a one the Tenant to be disseised of so much Land with the appurtenances c. whereupon when the said E the Tenant or Defendant had no Summons the said A the Plaintiff or Demandant did so prosecute that Action that the Land was taken into our hands a first and second time by which default the said A recovered the Land whereas there was no default as was alledged and took the Goods and Chattels of the said B then found upon the Land and taken from him by that means We command you that without delay you cause the same to be rendred and restored unto him that you also have before our Justices at the same time A and B by whom the first Summons was made and certified into our Court c. and likewise those by whom the second Summons was made whereby our said Justices may of the aforesaid Summons and Captions be certified and have you there this Writ Witnesse c. Or that which King Richard the Second did in Parliament in the fifteenth yeer of his Raign inflict upon Sir VVilliam Bryan for procuring a Bull of the Pope to be directed unto the Archbishops of Canterbury and York to excommunicate some that had broken his house and carried away his Writings by committing him prisoner to the Tower of London that fact and doing of his being by the Lords in Parliament adjudged to be prejudicial to the King and in Derogation of his Laws such and the like artifices and devices being so much disliked by the Commons in Parliament in the 39th yeer of the Raign of King Henry the sixth as they complained by their Petition to the King Lords that VValter Clerke one of their Members a Burges for the Town of Chippenham in the County of VVilts had been outlawed and put in Prison and prayed that by the assent of the King and Lords he might be released and their Member set at Liberty Or that which King Henry the eighth did in the Case of Trewynnard a Burgess of Parliament imprisoned upon an Utlary after Judgment in delivering him by his Writ of Priviledge which upon an Action afterwards brought against the Executors of the Sheriff and a Demurrer was resolved by the Judges to be legal And therefore Philip late Earl of Pembroke and Montgomery Lord Chamberlain of his late Majesties Houshold should not be blamed for causing in the yeer of our Lord one thousand six hundred thirty and seaven one Isaac VValter to
then next following and King Edward the 4th by vertue of his Kingly Prerogative as the Writ and the Record declared granted his Protection unto John Namby Gentleman Executor of William White alias Namby for himself and his Servants and their Lands and Estates to endure for three years very many of the Subjects of England in those dayes and the Reigns of our former Kings travelling on Pilgrimage for devotion or penance to Jerusalem or St. James of Compostella or which were Cruzadoed or voluntarily went unto the Holy Land so called for recovery of it in such numbers as about the year of our Lord 1204. being in the latter end of the Reign of King John sixty thousand English took the Cross for the Holy Land whose Protections saith Fleta were not in those dayes disallowed in the Courts of Justice because it was then understood to be in causa Dei the cause of God or for some which were sent on the Kings messages or affairs to Rome Normandy or Gascoigny in France or other parts beyond the Seas or in those many our English Warlike Expeditions and Armies sent to Jerusalem France Spain and Scotland or the Borders thereof in the Reigns of many or most of our Kings and Princes from William the Conquerors entring into England and the subduing of it untill the Reign of King James and into Wales or the Borders thereof untill the Reign of King Edward the third when the Nobility and principal part of the Gentry were even in those times more likely then the Commonalty or vulgar to be in debt and wanted not upon occasions the credit and good will of the Common people to trust them and freedom from Actions at Law and troubles in the mean time and the many thousands of our Tenants in Capite who by the Tenure of their Lands as well as by the bond and obligation of their Loyalty to their Kings and Princes were to attend them in the service of War not only upon their Summons and Commands in their Foreign Expeditions but at home in their defence against Rebellions and sudden Insurrections and had in the mean time no doubt Protections and freedom from Suits and Arrests whose Court Barons and Leets more then now orderly kept permitted not their Tenants disobedience unto them or their Jurisdictions or an enhance of the price of their Commodities and their Lands so entayled as they could not if they would either borrow or owe much money When the Nobility and Gentry like the Stars in our Hemisphere kept their courses and great Hospitalities addicted themselves to actions of greatness goodness charity and munificence and their numerous Tenants depending upon them returned them submissive and humble obedience a reverential awe and gratitude and held much of their Lands upon trust of performance of their Services and many Husbandry works instead of Rents and in that were more endebted to their Landlords and entrusted by them then their Landlords were unto them who did not as now they do with their Wives and Daughters resort to London to learn vice and vanities and run into Debt more than they should do nor make themselves at costly rates so great and oâ—ten purchasers of Transmarine Wares and Commodities which the small Income of the Customs in the beginning of the Reign of Queen Elizabeth when our Clothing and Exportation far exceeded our Importation will witness when the profit of her Customs in both was at first let to Farm but at 13000 l. per annum and afterwards at no more then 50000 l. per annum when there was not so great and consuming expences in Coaches Wine and other Foreign Toyes and Trifles when by reason of 600 Monasteries and Religious Houses and the great Retinues and number of Servants kept by them and the Nobility Bishops and Gentry and depending upon them the younger Children of the Nation were so largely provided for as there were not so many Trades or Apprentices in London as there have been of latter times so many Taverns Cooks or Trades of pride and luxury to entice the Nobility and Gentry into debts and expences when the rates and prices of their Wares and Commodities honester made and of Victuals and Houshold provisions were limited and bounded by our then better than now executed Laws and Trade was not let loose to all manner of fraud and unlawfull gains and the Companies or Corporations of Trades were not so many Combinations to adulterate and abuse the Trade of the Kingdom as now they do when there was not so frequent trusting by Trades-men as now of late only to encrease their gain double and raise their prices and make a more then ordinary usury upon the kindness they pretend to do their Customers by trusting of them when Trade and the furnishing of vice and excess had not made the Gentry so endebted to the City who are not in their Countreys or Neighbourhood so much under the lash of their complaints or prosecution when the Church-men by reason that some contracts were upon distrust of performance sworn and bound up by Oath would ratione sâ—andali sometimes take occasion to draw into their Courts the cognisance of Debts and Excommunicate them untill they were about the Reign of King Edward the first prohibited by the King and his Courts of Justice And Usury was as well before as long after accounted such a mortal sin as Christian Burial and the power of making last Wills and Testaments was denyed unto them the personal Estates of the Usurers confiscated the dying in debt reckoned a sin punishable in the next World all or some of which might give us the reason why there was in former times but very little complaint against Protections for most of that little which appears of the use or pleading of Protections in our Law-books or Records through so many past ages were in Pleas or Actions concerning Lands or Replevins c. but few in personal Actions or Actions of Debt and those which do in every Kings Reign appear in our Records to have been granted in respect of the many occasions and importunities which might otherwise have induced the granting of them to have been but a few in respect of many more which might have been granted if the prudence and care of our Kings had not restrained or limited their own power and authority therein for that there were then either few or out-lying over-grown or long-forborn Debts or the reason of the parties protected being imployed in the Kings Service which was and ever is to be accounted the interest of every man and a concernment of the Publique was enough to pacifie them and the care and reverence of the King and his business taught the people to obey rather then dispute that necessary part of his Prerogative which deserves our imitation when conform to the Laws of Nations Queen Elizabeth by the advice of as wise and carefull a Councel as any Prince of the World was ever blessed with did in
such an entercourse betwixt England and Rome and our Kings had so much ado to guard the Rights and Priviledges of themselves and their people from the Papal attempts and usurpations and many of our Kings had in their possession Normandy Aquitain and in other Provinces of France divers Forts and Castles they might well have occasions of sending many that were not of the Houshold which were better to be spared then those of whom they had daily use of occasion of service and that where the Protections were quia moraturus it was not seldom mentioned to be about fortifying a Castle or Town or providing Victuals for them or an Army and may rather be deemed to be none of the Houshold for that in the Register of Writs some Protections are revoked by the King because they pretended to go when they were commanded but did not or followed their own occasions and affairs not the Kings which cannot be easily understood of the Kings Servants in ordinary who in those dayes would not be willing to absent themselves from such profitable and eminent services and imployments And Sir Edward Coke in his greatest aversion to the just Rights and Regalities of the Crown is positive that besides the Kings general Protection of his loyal Subjects there is a particular Protection of two sorts the one to give a man an Immunity and freedom from all Actions or Suits the second for the safety of his person Servants and Goods Lands and Tenements whereof he is lawfully possessed from violence unlawfull molestation or wrong the first is of right and by Law and the second sort are all of Grace saving one and that the Kings Protection so as it be under the Great Seal of England as well moraturus as profecturus upon any mans going or abiding in the Kings service must be regularly to some place out of the Realm of England and that in some Actions as in a Scire facias upon Recoveries Fines Judgements c. In a Writ upon the Statute of Labourers although by the Statute made in the second year of the Reign of King Edward the 6th cap. 15. and the Statute made in the 5th year of the Reign of Queen Elizabeth cap. 4. no Protection is to be allowed and in a Writ of Deceit notwithstanding the rule of Law is that fraudi aut dolo Lex non patrocinatur Deceit is not to be favoured a Protection doth lye And that the Kings Protections are to be brought to the Courts of Justice where the Action is laid be they Courts of Record or not of Record and not to the Sheriff or any other Officer or Minister and are allowable not only unto men of full age but within age and for Countesses and women as nutrix lotrix or obstetrix Nurses of the Kings Children the Midwife to the Queen or Laundresses of the King or Queen Protections do lye and have been allowed where Essoines do not and denyeth not but a man having a Protection Quia moraturus and returning from beyond Sea only to provide Ammunition Habiliments of War Victuals or other necessaries for the Kings service and be arrested or imprisoned he shall enjoy the benefit of his Protection and denyeth not but that some Protections Quia nolumus because we will not that he should be molested may be granted by the King of grace and gives his opinion that where it is pro negotiis regni for the concern or business of the Kingdom jura publica ante ferenda privatis private mens actions are to give way or yield to the publick and private mens Actions and Suits must be suspended for a convenient time where it is pro bono publico the Weal-publick as certainly the necessary attendance of his Servants in ordinary either for his honour conveniency health or safety do relate unto and concern the peoples good and safety the protection of their lives and estates and the well being of themselves and their posterity and all that can be dear or near unto them And such kind of Protections of Servants in ordinary or extraordinary may be as consistent with Law or Reason as a Writ of Rege inconâ—ulto commanding a forbearance of proceedings in the case of one of the Kings Servants arrested or prosecuted at Law without leave first obtained should not be awarded as the Law and practice thereof is well contented to do it where the King is in Reversion or hath any Title to the thing or matter in demand which may be done at the prayer or request of the party concerned or of the Kings Councel or ex officio Curiae by the Court it self and as well as the Justices allowed a Supersede as to stay an Assise where the Defendant was in the service of the King in his Wars beyond the Seas or to stay Suits against divers Tenants in Northumberland upon Writs of Cessavit to forfeit their Lands for non-payment of their Rents and performing their services to their Lords in regard of the then Wars with the Scots untill the War should be ended or to save a default of the Tenant or Defendant and to adjourn the Suit or Action to another day or where one is convict of redisseisin and taken or arrested by a Capias the King commanded by his Privy Seal that no Process should issue and if any should issue that they should surcease and the Writ was thereupon staid For surely had not such or the like Protections been heretofore accounted to have been as legal as they were warrantable and usual there would not have been an Act of Parliament made in the 5th year of the Reign of King Edward the 3d. to forbid the allowance of them in Writs of Attaint against Jurors or in Writs of Novel Disseisin and is the first Act of Parliament which did in any case absolutely deny the allowance of the Kings Protection imitated and followed by the Act of Parliament made in the 13th year of the Reign of King Richard the 2d to prohibit Protections in the case where upon a default of the particular Tenant in a real Action he in the reversion is to be received to plead in a Suit commenced against him and the Act of Parliament and Penal Law made in the 23th year of the Reign of King Henry the 6th against such of the Kings Purveyors as did take Provisions from the people without paying for them and many an Act of Parliament and Penal Law from thence unto this present Which Protections or Tabulae â—utelares have been by Law and may be granted for a reasonable time unto any of the Kings Debtors untill the Kings Debt be paid with liberty given to their Creditors to proceed in the mean time but not to take out any Writs of Execution or to some that in unruly and troublesome times obtained their salva Guardia or Protection propter quosdam Aemulos where force or incivilities were feared or where upon sudden and unexpected Embargoes
or more protected and secured from the trouble of Law-Suits or disgracefull Arrests whilst they are busied about the King or in his ordinary service then those which are not his Servants in ordinary but as Envoyes Messengers or otherwise shall be imployed upon seldom or emergent affairs When Nehemiah's Commission to rebuild Jerusalem and the Royal Protection of King Artaxerxes by his Letters Patents under his Great Seal whilst he was busied therein cannot conclude that in those Eastern Countries where Artaxerxes had such an Imperium despoticum a large and absolute authority and a people so reverential and obedient that Nehemiah did not before his Journey or after his return enjoy the priviledge and freedom of one of the Kings Cup-bearers and a daily and constant attendant upon his person for it would be as illogical and unconcludent as to argue or believe that a Kings Servant known to be one of his Servants in ordinary without a Pass or Protection is not to enjoy as much priviledge as when he hath a Pass or Protection which can signifie no more then that he is a Servant or imployed as a Servant upon the Kings affairs especially when the only ground and reason of his Protection and upon which it is built or founded was the Kings service and it is not so much because it concerns the Weal-publick which the words in the Kings Protection do not bear or intimate but only in relation to the King and his service and that the protected party is imployed or sent per praeceptum Regis or in obsequio Regis by the Kings command or upon his business for otherwise the subordinate business of the Offices of a Sheriff or a Clerk to a Justice of Peace being something appurtenant to the common good might which they never yet did claim or demand a cessation from Law-Suits or a respite as the Protections for men imployed in the Kings Service have done there being as great a distance betwixt the reason and cause of the priviledge of the Kings Servants in ordinary and their attendance upon his person and affairs relating thereunto and that which is not immediately but remote as betwixt immediate and mediate proximate and remote nor can it be either truth or reason that if the Abbot of Burton upon Trent in the County of Stafford had been imployed by the King beyond the Seas and being as he was none of the Kings Houshold Servants such a Protection granted unto him whilst he was in the Kings service could have bereaved him of the priviledge which King Edward the 4th did grant unto him his Covent and Tenants which were many to be free ab omni vexatione Vicecomitis Staffordiae sive eorum Satellitum in perpetuum from all vexation and trouble of the Sheriff of the County of Stafford or his Bayliffs or Catchpoles or that if the Abbot of Tavestoke in the County of Devon had been sent as many Abbots in those times used to be upon any of the Kings affairs into Foreign parts and obtained the Kings Protection under the Great Seal of England that he and his Servants or Tenants should not be molested or troubled during his absence such an exemption for that small part of time ought to have abridged him of that priviledge which King Henry the second granted to his Predecessors Abbots of Tavestoke and his Successors that he or any of his Monks should not be impleaded or sued at Law nisi coram Domino Rege nisi Dominus Rex nominatim praeceperit but before the King himself unless the King should otherwise especially command or appoint it or should not at his return have enjoyed the priviledge of a Baron if he had held his Land by Barony to have been only summoned and liable to the Process at Law usually granted against Barons or that if the Prior of Spalding in the County of Lincoln had been commanded to go into Scotland or Wales upon any of the Kings necessary occasions and had been allowed a Protection under the Great Seal of England to respite any Actions or Suits at Law in the mean time to be commenced or brought against himself his Servants or Tenants that could after that business ended have debarred him of the priviledge of a Baron or of one holding his Land per Baroniam by Barony to have been only summoned and distrained according to the Process of the Law usually granted against Barons or of that priviledge which K. Richard the first and K. John granted unto the Abbot of Spalding and his Successors that none should implead them their Servants or Tenants de aliquo Tenemento suo for any of their Lands or Tenements nisi coram Rege vel coram Capitali Justiciario suo vel per speciale mandatum Domini Regis unless it should be before the King or his Chief Justice who then resided in the Kings Court or by the Kings special mandate and amounted to no less then the priviledge as aforesaid claimed by the Kings Servants in ordinary not to be arrested without license or leave first given by the King or those Officers of his Houshold to whom it belongeth Nor can it be any thing but a paradox and a very great enemy to reason that obsequium praeceptum Regis the Kings affairs and command imploying Strangers and none of his Houshold Servants as questionless the Abbot of Miravall was not who as appears by the Register of Writs had a Protection granted unto him whilst he was imployed in the Kings service in the parts beyond the Seas should be allowed for a ground and foundation of a Protection and available in the case of one that was not at all busied in a continual attendance upon his Person or Houshold affairs and be denyed his Servants in ordinary who were a latere alwayes imployed about him or his more necessary constant or durable affairs and that it should be a causa causati cause of the effect or thing caused in the protection of a Stranger imployed for some few dayes or weeks in the Kings affairs and not for those which were more near unto him and daily conversant in his immediate and Domestick affairs in whose care and fidelity his Sacred Person and the light and welfare of our Israel is entrusted and that those that were not his Servants should be in a better condition when they are imployed by him and his menial and ordinary Servants in a worse and the same cause not operate at all in the case of his Servants in ordinary who have more need of it and be so vigorous and effective for those that are Strangers and have less need of it as to their persons who being beyond the Seas were out of the reach of any arrest or imprisonment and as to their Lands and other Estates might if they had not had the Kings Protection under the Great Seal of England have defended any Actions by their Attorneys or have been Essoined or reversed any Utlary quia
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
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