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
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
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
Complaints against any of their Menials and Servants cannot rationally be supposed to be willing or intend to abridge himself of the like William the Conqueror in his Law entituled de hominum Regis privilegio of the priviledge belonging to his Tenants ordained That si qui male fecerint hominibus illius Ballivae et de hoc sit attinctus per Justitiam Regis which for a great part thereof was then administred in his House or Palace foris factura sit dupla illius quam alius quispiam foris fecerit That if any one should do wrong unto them and be thereof Convict by the Kings Justice the forfeiture of the Offender should be double to what should be paid upon the like offence unto any other who being afterwards known by the name of Tenants in antient Demeasne were so exempt from being retorned as Jury men either at Assizes or Sessions as where they were so retorned in the 26 year of the Raign of King Edward the first they did recover every man forty shillings damage against the Bayliffe that retorned them Et Domus Regis and the House of the King saith King Henry the first in his Laws is where he is Resident Cujuscunque feudum vel Mansio sit whose ever the Land or the House be and that wise King who for his wisdome had the Character or name of Beauclerk as an Affix to his Royal Title did not then take it to be derogatory to the beloved Laws of Edward the Confessor or his grand design of pleasing a lately discontended and subdued people or setling the English Crown unjustly detained from his elder Brother Robert upon himself and his posterity to allow the Exchequer Priviledges quód de Scaccario residentes Clerici et omnes alii ministri ibidem ministrantes sive enim de Clero sint sive Regia Curia assident ex mandato ad alias quaslibet causas extra scaccarium sub quibuscunque Judicibus non evocenter That the Officers of the Exchequer which was then kept in the Kings House or Palace and many of them and the Clerks thereof as Sir Henry Spelman saith his menial and domestick Servants Clerks and all other the Ministers there whether belonging to the Clergy or the Kings Court or which do sit there by his Command shall not be cited or compelled to appear for any causes whatsoever out of the Exchequer or before any Judges or Judge Etquod iidem de Communibus Assises sect Comitat. hundred et Cur. quibuscunque tam de et pro dominiis suis quam de et pro feodis suis Ac etiam de Murdris scutagiis vigiliis et Danegeld And that they should be freed and exempted from common Assizes suit of County Courts hundred Courts or any Courts whatsoever as well for or concerning their Demesn Lands as for their Fees or Lands which they held of others which would otherwise after two years have made a forfeiture and could not have been dispensed withal Murders Escuage Watch and ward and Danegeld publique Taxes which were not but by special favour to have been acquitted Et quod Barones et qui ad Scaccarium resident de quibuscunque provision seu provisoribus et aliis solutionibus nomine consuetudinis pro quibuscunque victual suae domus in quibuscunque urbibus Castellis et locis Maritimis empt Ac de solutione Theoloniae sive Toluet liberi et quieti esse debent and that the Barons and those which reside in the Exchequer should not be charged with the payment of Toll in any City or place Et quod non debent implacitari alibi quam in Scaccario quamdiu idem Scaccarium fuerit apertum and that they should not be impleaded any where but in the Exchequer when it shall be open which is not only all the Term times but eight daies before every Term. Si vero judex sub quo litigant sine sit Ecclesiasticus sive forensis legis hujus ignarus ab jam dicta die convocationis ad Scaccarium citaverit quemlibet eorum et absentem forte per sententiam possessione sua vel quonius Jure spolaverit authoritate principis et ratione sessionis revocabitur in eum statum causa ipsius in quo erat ante citationem But if the Judge whether Ecclesiastical or of the Common Law being ignorant of the opening of the Exchequer should cite any of them and in their absence give sentence against him and take away from any of them any of their Rights or Possessions by vertue of the Kings Authority and their sitting the Cause or sentence shall be forthwith revoked and reduced into the State it was before the Citation And were so greatly favoured and taken care of as si quilibet etiam magnus in regno in consulto animi calore conviciis lascesserit If any great man of the Kingdome should rashly or in anger revile any of them he was to pay a fine for it or if any other should reproach or doe them any wrong they should be punished and when that King had been ill advised and perswaded to charge the Lands of the Barons of the Exchequer with the payment of Taxes in regard that they as was by some envious persons then alleag'd did receive Salaries and Wages or Liveries or diet at the Court for their sitting and that some of them pro officio suo fundos habent et fructus eorum hinc ergo gravis jactura fisco provenit having Lands and Revenues given them also for it which was a great loss to the Kings Treasury or Exchequer But the King afterward experimenting that evil Counsel and growing weary of it et nil ducens Jacturam modici aeris respectu magni honoris and not valuing the loss of a little mony so much as the loss of a great Honour ordained that Jure perpetuo by a constant Law and decree they should as formerly be free from Taxes and in his Laws for the good of the Kingdome declaring his Kingly Rights and Prerogative which he solus et super omnes homines habet in terra sua as King of England had and was to enjoy and above all men in his Kingdome commodo pacis et securitatis institutione retenta reserving a fit provision for the publique peace and security did amongst many of his Royal Prerogatives mention de famulis suis ubicunque occisis vel Injuriatis the punishment of such as any where should slay or injure any of his Houshold Servants in any place whatsoever Et qui in Domo vel familia regis pugnabit such as should fight in the Kings House And limiting the extent of the Jurisdiction of the Marshall of his Houshold declared it in these words nam longe debet esse pax Regis a porta sua ubi residens erit the peace of the King ought to extend a great way from the gate of his House where he shall be resident not much unlike that of the 12 miles circuit of the Verge
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
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
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
is their dignity service and attendance upon the King and Weal publick more then any supposition of their great Estates sufficient to be distreined which hath founded and continued those just and warrantable liberties and priviledges unto them tam tacito omnium consensu usuque longaevo derived and come down unto us aswell from antiquity the law of Nations and the civil and Imperial laws which were no strangers unto us above 400 years after the comeing of our blessed Saviour Christ Jesus into the flesh or when Papinian the great civil Lawyer sate upon the Tribunal at York seven years together whilst the Emperor Severus kept his Court and was there Resident wherein are only to be found the Original g of many honorable rational and laudable customes of honour and Majesty used not only in England but all the Christian Kingdomes and Provinces of Europe quam Regni Angliae Institutis latisque quae in Juris necessitatemque vigorem jam diu transiit as our common and Municipal laws and Reasonable customes of England necessarily to be observed for if it could be otherwise or grounded only upon their sufficiencies of Estate whereby to be distreined every Rich Man or good Freeholder which differ as much from our Nobility as the Hombre's Rico's rich men without priviledges do in Spain from the Rico's Hombre's dignified and rich men might challenge as great a freedom from arrests especially when our laws do allow an action upon the case against a Sheriff or other which shall make a false Retorne that a Freeholder hath nothing to be distreined when he hath estate sufficient whereby to be summoned or distreined but it neither is nor can be so in the case of our Nobility and Baronage who are in times of Parliament to be protected by their Dignities and the high concernments of Parliamentary affairs from any molâ—station or disturbance by any Writs or Processe either in their Persons or Estates and are by some condiscention and custome in favour to such as may have cause of action against them in the vacancy of Parliaments and when their priviledge of Parliament ceaseth become liable to the Kings Writs or Processe yet not by any Processe of arrest or imprisoning of their persons but by Writs of Summons Pone per vades salvos taking some Pledge or Cattle that they shall appear and Distringes to distrein them by their Lands Tenements Goods and Chattels untill they do appear and answer to the action that which is retorned or levied thereupon being not retorned into the Exchequer or forfeit to the King if they do appear in any reasonable time unto which priviledge of Process the Bishops of England and Wales holding by Barony may justly claim or deserve to be admitted when as the Metropolitans having an Estate for life in their Bishopricks and Baronies ought not to have a Nihil habet retorned against in their several Provinces nor the Suffragan Bishops in their Diocesses nor have their dignities subjected to the violence of Arrests or sordid usage of prisons hindering the execution of their sacred Offices in the Government and daily occasions of the Church of God neither are any of the Baronage or Bishops of England to be distreined in their Journeys per equitaturam by their Horses or Equipage for any Debt or upon any other personal action whilst they have any other Goods or Chattels whereby to be distreined So as if any of the Temporal Baronage of England holding their Earldomes or Baronies in Fee or Fee Tail or for Life should by the prodigality of themselves or their Ancestors or by misfortunes troubles or vicissitudes of times as too many have been since their honors have not been as if rightly understood they ought to be accounted feudall and the Lands thereunto belonging as the lands of the Bishops and spiritual Barons unalienable be reduced to a weak or small Estate in lands or should have none as John afterwards King of England a younger son of King Henry the Second was who untill his father had conferred some honors and lands upon him was called Jean sans terre John without land yet they having a Freehold in their honors and dignities and the Dukes Marquesses Earles and Viscounts of England having at their Creations some support of honor by way of Pension or Annuity yearly paid unto them by the King and his Heirs and Successors annexed thereunto and not to be severed from it The antient Earles having the third peny or part of the Fines and Amercements due to the King out of the Counties of which they were Earles afterwards about the Raigne of King John reduced to 20 Maâ—kes per annum as all the later Earles and Viscounts now have and the Dukes and Marquesses a greater yearly annuity or Creation mony as 40 Marks or 40 l. per an And all the Nobility and Baronage of England having besides a Freehold in their honors and dignities and their houses nobly furnished some of them having above 20 thousand pounds per an lands of Inheritance many above 10 others 7 6 5 4. or 3 thousand pounds per annum lands of Inheritance in Taile or for Life and none unless it be one or two whose misfortunes have brought their Estates for Life or Inheritance something under one thousand pound per annum There can be neither ground or reason for any Sheriff upon any the aforesaid Writs awarded or made against any of them to retorne Quod nihil habet per quod summoniri possiit that he had nothing whereby to be summoned attached or distreined and if that could as it cannot rationally be truly or legally done yet the Judges sworn unto the observance of the laws and to do Justice unto all sorts of people cannot in any of their Courts award or cause Writs or Process of Capias against them to arrest or imprison their bodies upon any action of debt or other personal actions not criminal which makes an impossibility for any of them in civil actions to be outlawed And if they had neither Creation mony nor Lands Goods or Chattels which is neither rationally or probably to be either imagined or beleived yet they are not to be denied those honorable priviledge so antiently and by the laws of nations belonging to their high calling and dignities when as the antient Charters or Creations of Earls those later of some of our Dukes Marquesses Viscounts and Barons having words and clauses amounting to as much do grant them as in that antient one by King Henry the second to Earle Aâ—berick or Albercius de tere of the Earldome of Oxenfordscyre their honors ita libere quiete honorifice sicut aliquis comitum Angliae liberius quetius honorificieutius habet as freely and honorably as any Earl of England held his Earldome as that grant of the same King to William d'Abbiney of the Earldome of Arundell cum omnibus libertatibus liberis consuetudinibus predicto honori pertinentibus
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
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
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
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