that School and be ready to make Affidavit of those his pretended Axioms may do well before they do too greedily imbibe them to remember that Maxime in our Law as well as the Caesarean that Nemâ— plus Juris in alium transferre potest quam ipse habet No man can give unto another a greater Power and Authority than he hath himself and that Sir Edw. Coke himself hath acknowledged that a Derivative cannot be greater than the Power and Authority from whence it was deriv'd And to give themselves and others the reason why the Kings of England should have a Comptroll and rectifying Super-intendency by the Common Law Judges own confessions over his Admiralty and Ecclesiastical Courts and not of his Common Law Courts and other Judicatories or may not send his Prohibitions to Superior Courts where they intermeddle beyond their Cognizance as he doth in the Admiralty and Ecclesiastical Courts and as he may do in all inferior Courts and by what Rule Act of Parliament or positive Law they are to do it in the one and are restrained in the other or left at liberty in the one and not in the other And whether he may not in Civil Actions for some reasons of State Justice or Equity do it as well as in the Reign of King Henry the Third after the making of Magna Charta it was done when Bracton takes it for a Rule that in advenâ—u Justitiariorum ad omnia placita ex Jurisdictione sibi delegata pertinent ad eos audire querelas singulorum Petitiones ut unicuique Justicia â—iat that in the Circuit of the Judges it belongeth unto them by their Jurisdiction delegated to hear all men and their Complaints and Petitions that Justice may be done to every man yet if any prosecuted or complained of without the Kings Writ or Precept injuste arctatus fuerit shall be unjustly forced to answer Subvenitur ei per taâ—e brev Domini Regis Rex Vicecom salutem precipimus tibi quod non implacites nec implacitari permittas talem de libero tenemento suo in tali villa sine speciali Precepto nostro vel Capitalis Justiciarii nostri The King may relieve him by such a Writ viz. that is to say The King sendeth greeting to the Sheriff We command you that you do not implead or suffer to be impleaded such a one of his Free-hold in such a Town without Our Writ Precept or Command or of Our Chief Justice Or as that King did where an Appeal was brought in the County of York for a Robbery and remov'd per Preceptum nostrum by the Kings command before his Justices at Westminster which S r Ed. Coke says is always to be understood to be of the Court of Common-Pleas and being heard the Party appealed was acquitted and having been appealed for the same Fact in the County of Essex and after that Acquittal aforesaid outlawed in Essex the King quoniam Error prejudicare non debet veritati to the end that Error might not prejudice Truth did Consilio Magnatum by the advice of his Great Men pronounce that Outlawry to be null and void And in another Case where the Justices Itinerant upon an Appeal brought for the death of a mans brother and he that was appealed being a timorous man had fled thereupon so as by the command of the said Justices he was afterwards outlawed and the man that was said to have been killed was found to be alive and in health the King seeing that there was no just cause of the Utlary did pardon it and the flight and commanded that in a full County-Court where he was outlawed the man said to be killed should be produced and that then eum inlagari faciat ad pacem Regis recipi the Sheriff should in-law the Defendant and receive him to the Kings peace and publiquely proclaim that he was received into the Kings grace and favor And if they will read Bracton quite through and diligently observe and compare one place with another and that wherein he is positive and concludent they need not go far to seek how easie it is to mistake Reason and overâ—run and reject Truths as the Rabbies and Proselites of the Rebellious Assembly call'd The Long Parliament did not long ago do by suffering their prejudice fancy or sinister ends to rove and catch a piece of that Ancient Loyal and Learned Author to furnish out their disloyal Arguments and Purposes without any further reading or enquiry into him where they may see the contrary asserted and abundance of Confutation of those and many other Errors they were so much in love with and are so willing to espouse The Authorities offered to prove the Opinion of Sir Edward Coke and the Judges in that Case of Prohibitions in Michaelmas Term in the fifteenth year of the Reign of King James before-mentioned yielding if well examined no support to that debile fundamentum weak and insufficient Thesis or intended Foundation and will as unsafely be relyed upon as those many Conclusions which he hath as to many things drawn from the counterfeit Modus tenendi Parlementum abundantly prov'd to be so both by Mr. Selden and Mr. Pryn about the latter end of King Henry the Sixth and from his over much admired and too often cited but suspected the so called Mirror of Justice written by Andrew Horne many hundred years after the Reign of King Alfred of much of the matters wherin Asser Meneuensis who lived in his Court and wrote of his Actions Brompton and many of our old English Writers are altogether silent and as little satisfactory as the Resolution of himself in Trinity Term in the fifth year of the Reign of King James concerning a Commission to inquire of Depopulations to be amongst other defects suppos'd to be therein that the said Commission was against Law 1. because it was in English 2. because the Offences inquirable were not mentioned in the Commission but in a Schedule annexed the reason and authority whereof lies as hidden and difficult as the most dark and envelopped Riddles and Aenigma's of Sphinx and as unintelligible as the most mystical Caballa of the opinionated Rabbins and as unlikely to be assisted by any either Law or right Reason as another Opinion or Hypothesis of Sir Edward Cokes and others That the King cannot create a Manor when those many thousand Manors in England have not with their large Liberties and Priviledges been granted by Act of Parliament but by the Favor and Indulgence of our Kings or by their tacite Permissions where any of those Manors have as parcel of some others or otherwise been onely upheld by Custom or Prescription All which with many other of his Doctrines and Opinions would not have been welcomed or caressed by the former Ages who well unstood the difference betwixt the Edicta and Rescripta Principum the Edicts and Legal Mandates of Sovereign Princes with the high esteem respects and obedience is due unto them
Palace the Court of Justice therein kept being called Capitalis Curia Domini Regis the Kings chief Court where those Justices or Judges then sate and where the great Assize or Writs of Assize in pleas of Land happily succeeding in the place of the turbulent fierce and over-powring way of duels or waging of battels for the determination of pretended Rights were tryed Juries impanelled and a Fine passed and Recorded before the Bishops of Ely and Norwich and Ralph de Glanvile our Learned Author Justitiis Domini Regis et aliis fidelibus et familiaribus Domini Regis ibi tunc presentibus the Kings Justices and other of his Subjects and Houshold Assizes of novel desseisin and prohibitions to Ecclesiastical Courts awarded And was so unlikely to permit any Breach of his Servants just priviledges as he did about the 24th year of his Raign not only confirm all his Exchequer Servants Dignities and priviledges used and allowed in the Raign of King Henry the first his Grandfather but although Warrs and many great troubles assaulted him did when he laid an Escuage of a Mark upon every Knights Fee whereby to pay his hired Soldiers not at all charge his Exchequer Servants for that as the black Book of Exchequer that antient Remembrancer of the Exchequer priviledges informs us Mavult enim Princeps stipendiarios quam Domesticos Bellicis apponere casibus for the King had rather expose his hired men of Warre to the inconveniences thereof then his Domestique or Houshold Servants and being as willing as his Grandfather to free them from being cited or troubled before his delegated or Commissionated Courts of Justice or Tribunals would in all probability be more unwilling that those which more neerly and constantly attended upon his person health or safety should by any suits of Law be as to their persons or estates molested or diverted from it nor could there be howsoever any danger of arresting the Kings Servants in ordinary without leave or Licence first obtained in the after-Raigns of King Richard the first and King John when Hubert Walter Archbishop of Canterbury and Chancellor of England in the 6th year of the Raign of King John was likewise Lord Chief Justice of England And the now chief Courts of the Kingdome as the Chancery Kings-Bench Common-Pleas and Exchequer were radically and essentially in the King and in the distribution of Justice of the said Kings and their Royal Predecessors resided in their Council and great Officers in their Courts attending upon their Persons For many of the Suits and Actions at the Common Law and even those of the Court of Common Pleas untill the ninth year of the Reign of King Henry the third when it was by Act of Parliament forbidden to follow the Kings Court but to be held in loco certo a place certain in regard that the King and his Court were unwilling any more to be troubled with the Common Pleas or Actions betwixt private persons which were not the Kings Servants were there prosecuted And untill those times it cannot be less then a great probability that all the Trades-mens debts which were demanded of Courtiers and the Kings Servants were without Arrests or Imprisonments to be prosecuted and determined in the Court before the Steward and the Chamberlain of the Kings House and that the King who was so willing was so willing to ease his Subjects in their Common Pleas or Actions by freeing them from so chargeable an attendance which the prosecution of them would commonly if not necessarily require did not thereby intend that they should have a Liberty without leave or Licence first obtained to molest any of his Servants in ordinary in their Duty or Attendance upon his Royal person and Affairs by prosecuting Arresting imprisoning or compelling to appear before other Judges or Tribunals any of his Servants in ordinary Who in those times may well be thought to enjoy a freedom from Arrests or Imprisonment of their Bodies untill leave or Licence first obtained when Hugo de Patishul Treasurer unto King Henry the third in the nineteenth year of his Raign Philip Lovel in the 34th year of the Raign of that King and John Mansel Keeper of the great Seal of England in the 40th year of that Kings Raign were whilst they held their several other places successively Lord Chief Justices of England When the Court of Chancery being in the absence of Parliaments next under our Kings the Supreme Court for the order and distribution of Justice the Court of the Kings Bench appointed to hear and determine Criminal matters Actions of Trespass and Pleas of the Crown and the Court of Exchequer matters and Causes touching the King's Revenue were so much after the 9th year of the Raign of King Henry the third and the dispensing with the Court of Common Pleas from following the person of our Kings to their several Houses or Palaces or as their Affairs invited them to be sometimes Itinerant or resident in several other parts of the Kingdom did follow the King and were kept in their Houses or Palaces notwithstanding that when like the Sun in his Circuit distributing their Rayes and Comforts to all the parts of the Kingdome by turns they were according to their occasion of busines sometimes at York or Carlile in the North and at other times for their pleasures or divertisements kept their Courts or festivals at Glocester or Nottingham and their Parliaments sometimes at Marlebridge in Wiltshire or Ruthland in Wales or at Glocester or Lincoln For it may be evidenced by the Retorn or days given in Writs and antient Fines levied before the Justices of the Court of Common Pleas at Westminster after the allowance or favour given to that Court not to be ambulatory and to the people not to be at so great trouble or charges as would be required to follow the King and his Court in a throng of Followers and other business for the obtaining of Justice in their suits or Actions as well small or often emerging as great and seldome happening the days of old also affirming it that the Kings Palace at Westminster in the great Hall where the Court of Common Pleas hath ever since dwelt some places thereunto adjoyning retaining at this day the Name of the Old Palace did not cease to be the Palace or Mansion House of our Kings of England untill that King Henry the 8th by the fall of the pompous Cardinal Woolsey the building of St. Jame's House and inclosing the now Park thereof with a brick wall made White-Hall to be his House or Palace but kept the name as well as business of the Palace or Mansion House of our Kings of England And the Courts of Chancery King's Bench and Exchequer did after the fixation of the Common Pleas or Actions of the people to a certain place in the Kings Palace at Westminster being then his more settled and constant habitation and Residence for his not a few
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
Liberties did commit to Prison one that had Arrested one of Her Servants without leave and the Creditor being shortly after upon his Petition released by the said Earl who blaming him for his contempt and misdemeanor therein and being answered by the Creditor that if he had known so much before hand he would have prevented it for that he would never have trusted any of the Queens Servants was so just as to inforce that Servant of the Queens to pay him presently or in a short time after the said debt And told him that if he did not thereafter take a better care to pay his Debts he would undo all the other of the Queens Servants for that no man would trust them but they would be constrained to pay ready money for every thing which they should have occasion to buy In the six and twentieth year of Her Reign Henry Seâ—kford Esq one of the Grooms of Her Majesties Privy Chamber being Complainant against William Cowper Defendant the Defendant was in open Court upon his Allegiance enjoyned to attend the said Court from day to day until he be otherwise Licenced and to stay and Surcease and no further prosecute or proceed against the Complainant in any Action at and by the Order of the Common Law And about the Seven and twentieth year of Her Reign some controversies arising betwixt the Lord Mayor and Citizens of London and Sir Owen Hopton Knight Lieutenant of the Tower of London concerning some Liberties and Priviledges claimed by the Lieutenant and his refusal of Writs of Habeas Corpora and that and other matters in difference betwixt them being by Sir Thomas Bromley Knight Lord Chancellor of England the Earl of Leicester and other the Lords of the Council referred unto the consideration of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and Sir Gilbert Gerrard Knight Master of the Rolls they did upon hearing of both parties and their allegations Certifie under their hands that as concerning such Liberties which the Lieutenant of the Tower claimeth to have been used for the Officers and Attendants in the Tower some of them being of the Queens Yeomen of the Guard and wearing Her Livery Coates and Badges as they do now the Kings as not to be Arrested by any Action in the City of London and Protections to be granted unto them by the Lieutenant and his not obeying of Writs of Habeas Corpus They were of opinion that such Persons as are dayly Attendant in the Tower of London Serving Her Majesty there are to be Priviledged and not to be Arrested upon any plaint in London But for Writs of Execution or Capias Vtlagatum's which the Law did not permit without leave first asked the latter of which by the Writ it self brings an Authority in the Tenor and purport of it to enter into any Liberties but not specifying whether they intended any more than Capias Vtlegátum when it was only after judgement or such like they did think they ought to have no priviledge which the Lords of the Council did by an Order under their hands as rules and determinations to be at all Times after observed Ratifie and Confirm And our Learned King James well understanding how much the Weal Publick did Consist in the good Rules of Policy and Government and the support not only of His own Honor and just Authority but of the respects due unto his great Officers of State and such as were by him imployed therein did for the quieting of certain controversies concerning Precedence betwixt the younger Sons of Viscounts and Barons and the Baronets and others by an Ordinance or Declaration under the Great Seal of England In the tenth year of His Reign Decree and Ordain That the Knights of the Most Noble Order of the Garter the Privy Councellors of His Majestie His Heires and Successors the Master of the Court of Wards and Liveries the Chancellor and under Treasurer of the Exchequer Chancellor of the Dutchy of Lancaster the Chief Justice of the Court commonly called the Kings Bench the Master of the Rolls the Chief Justice of the Court of Common Pleas the Chief Baron of the Exchequer and all other the Judges and Barons of the degree of the Coife of the said Courts Now and for the Time being shall by reason of such their Honourable Order and Imployment have Place and Precedence in all Places and upon all occasions before the younger Sons of Viscounts and Barons and before all Baronets any Custom Vse Ordinance or other thing to the Contrary Notwithstanding In the four and thirtieth year of Her Reign Sir Christopher Wray Knight Lord Chief Justice of Her Court of Queens Bench Sir Edmond Anderson Knight Lord Chief Justice of the Court of Common Pleas and the rest of the Judges of the aforesaid Courts seeming to be greatly troubled that divers Persons having been at several Times committed without good cause shewed and that such Persons having been by the Courts of Queens Bench and Common Pleas discharged of their Imprisonments a Commandment was by certain great Men and Lords procured from the Queen to the Judges that they should not do the like thereafter all the said Judges together with the Barons of the Exchequer did under their hands Exhibit unto the Lord Chancellor and the Lord Burghley Lord Treasurer of England their Complaint or Remonstrance in these words viz. We Her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some Order may be taken that her Highness Subjects may not be Committed or detained in Prison by Commandment of any Noble Man or Counsellor against the Laws of the Realm either else to help us to have access unto her Majesty to the end to become Suitors unto Her for the same For divers have been imprisoned for Suing Ordinary Actions and Suits at the Common Law until they have been constrained to leave the same against their Wills and put the same to Order albeit Judgement and Execution have been had therein to their great losses and griefs For the aid of which persons her Majesties Writs have sundry Times been directed to sundry Persons having the custody of such Persons unlawfully Imprisoned upon which Writs no good or Lawful cause of Imprisonment hath been returned or Certified Whereupon according to the Laws they have been discharged of their Imprisonment some of which Persons so delivered have been again Committed to Prison in secret places and not to any Common or Ordinary Prison or Lawful Officer or Sheriff or other Lawfully Authorised to have or keep a Goal So that upon Complaint made for their delivery The Queens Courts cannot tell to whom to Direct Her Majesties Writs And by this means Justice cannot be done And moreover divers Officers and Serjeants of London have been many Times Committed to Prison for Lawful Executing of Her Majesties Writs Sued forth
be Attached Et hinc est quòd vulgaritèr dicitur quòd servientes Regis sunt Pares comitibus and from hence it is saith Fleta that it is Commonly said that the Kings Servants are in that Respect Peers of the Earls and are upon Actions or Complaints of Debt or other personal Actions in the awarding of process in the Court appropriate to the Kings House or Palace to enjoy the like Summons or respectful Usage But if there had been no such Custom or Priviledge in the former ages there is now and hath been for some years last past a greater necessity and reason for it then ever when any of the Kings Servants being made a Defendant by feigned and fictitious Actions or Writs called Bills of Middlesex or Latitats Issuing out of the Court of Kings Bench in placito transgressionis upon a supposed Action of Trespass as great as the Plaintiffs malice or designed oppression to ruine and lay unjust Actions upon him can invent and a late imaginary supposed custom with an ac etiam or supposition of an Action of One thousand or ten or twenty thousand pounds added in the same Writ or Action to be afterwards viz. when the Plaintiff pleaseth exhibited against him may be cast into Prison and overwhelmed with such Complainants pretended Actions his friends so affrightned as they dare not bail him if they were able his service lost and his livelihood under his Sovereign and gracious Master taken away from him and our Kings of England by such Plaintiffs and their untruly suggested Actions reduced to as manifest dangers by Arresting or taking away their Guards or Attendants from them when he shall go or ride abroad or be recreating himself in hunting or other disports as King James was by the wicked Earl Gowries Trayterous purposes to Murder Him by sending His Servanrs the wrong way and telling them that the King was gone before another way and when such Illegal and unwarrantable Writs may have neither cause or evidence or may be for an inconsiderable or small summe of Money or perhaps none at all due unto them And have been of late such Midwives to wicked Designs and Contrivances as a Married Woman hath been by the confederacy of her Husband and the Arresting and Imprisoning her Servants by such Counterfeit Actions enforced to leavy a fine whereby to pass away the Inheritance of her Lands of a great yearly value which was after Reversed by Act of Parliament and a Gentlewomans house in S. Martins Lane in the fields neer London Robbed by Arresting of the Mistress of the House and those that were in it by such Bills of Middlesex for which the Cheater that contrived it was not long after deservedly hanged And surely such a priviledge claimed by the Kings Servants in Ordinary needs not be so quarrelled at when in the great Case which happened in Anno Dom. 1627 being the third year of the Reign of King Charles the Martyr upon Habeas Corpora's brought by four or five Gentlemen who were Imprisoned per speciale mandatum Domini Regis by the Kings Special Command signified under the hands of eighteen Privy Councellors for not lending money to the Publique necessities when they were very able to do it concerning the Arrest or Imprisonment of any of the Freeborn People of England by the Kings Warrant or Command without a cause Expressed Whereby the Judges upon a Habeas Corpus might enquire and Judge of the cause of such Imprisonment and give any of his Subjects their Libertys upon Bail to Answer the Action where the Law allowed it the many and elaborate Arguments made on those Gentlemens behalf in the Court of Kings Bench by several able Lawyers amongst which was that skilful Diver into our Common Laws Antiquities Records and Presidents the Eminently Learned Mr. Noy who except the Great and Learned Selden brought as Great an Ingeny and Intellect to the study of them and a more solid and Penetrating wit and Judgment then any or many an age hath yet produced could not keep the said Gentlemen from being remanded back to the Prisons from whence they came or hinder the opinion of the Judges of that Court amongst which was the Right Learned Justice Doddridge upon view of the President in the case of Edward Page in the seventh year of King Henry the eighth committed to the Marshalsea by the Lord Steward of the Kings House who being afterwards upon an Habeas Corpus brought before the Justices of the Kings Bench was remanded and the like in the Case of James Desmeisters committed to the Marshalsea of the Kings Houshold per concilium Domini Regis by the Kings Privy Council that those Gentlemen could not be Bailed and that by some Pesidents in many Cases where men have been Committed by the Kings Command when they have been discharged by that Court it hath been upon the Kings pleasure signified by His Attorney General or otherwise that which Sir Robert Heath Knight the Kings Attorney General then alleaged for the King in his Argument in that Case not being denied to be Law or presidented either by the Judges or the Council on the other side that multitudes of Presidents might be shewen wherein men Imprisoned for contempts of Decrees in the Courts of Chancery or Requests Courts of Exchequer and High Commission or by the Corporations or Companies of Trade in their Domineering By-laws or Ordinances were not bailed upon their Habeas Corpora's and that in the Case betwixt the Bakers of London where they Fined and Committed men to Prison for not paying of it and the like not seldom done by the Corporations and Companies of Trades in London and the lesser sort of them as of the Watermâ—n c. Thomas Hennings and Litle Page being Imprisoned in 11 Jacobi Regis when they brought their Habeas Corpora and the cause being shewen to be by reason of an Ordinance or Constitution of the Lord Mayor of London the Prisoners were sent back to abide his Order in which grand Case of the Habeas Corpora that Pious and just King did not as Oliver that Canker of our English Laws and Liberties did in the Case of Mr. Cony the Merchant Imprison or Terrifie the Lawyers which argued for them but in the Expectation and hopes of a better effect then afterwards hapned upon it gave them as much Time and Liberty of Search and Arguments against His Royal Prerogative in that particular as they could desire and those very Justices of the Kings Bench being in the next year after called before a Committee of Lords and Commons in Parliament to declare their opinions concerning those proceedings And asserting their opinions Justice Whitlocke being one of the said Judges denied that there was any Judgment therein given whereby either the Kings Prerogative might be enlarged or the right of the Subject Trenched upon that if they had delivered them presently it must have been because the King did not shew cause wherein they should have
the Law and Domineer over it's proceedings one of them Threatning to Hang up the Lawyers Gowns in Westminster-Hall as the Colours and Ensigns of their once dearly beloved Covenanting but afterwards ill requited and beaten Scots brethren had been used For to Ask or Petition for a Licence or Leave of the Lord Steward Lord Chamberlain or other Great Officers of our Kings Houses or Palaces to whose Jurisdiction it doth belong before any Arrest or Prosecution at Law can be had against any of the Kings Servants is no more then our Laws well Interpreted do order and enjoyn to be done in all Actions Civil Real or Personal against Private and Common Persons or such as are not the Kings Servants for if the Action be laid or entred in the Court of Kings Bench it is to be made Returnable Coram Domino Rege before the King himself who by the Justices of that Court Assigned to hold such Pleas as the King in the Constitution and fixing of the Court of Common Pleas reserved to be heard by himself or those assistant Judges is supposed to Hear and Determine such causes as are proper for that Cour◠or if the Action be desired to be Tryed in the Court of Common Pleas upon the Kings Original Writ which may as it was by the Franks not unfitly be called Indiculus commonitorius A Monitory Letter or Writ of the Kings Issuing out of the High Court of Chancery under the Teste me ipso or witness of the King himself and is to be sued out giving the Justices of the Court of Common Pleas which is the Legal and Proper Court Ordained for such matters a Warrant Power or Commission to hold Plea therein for otherwise saith Fleta nec Warrantum nec Jurisdictionem nequè cohertionem habent supposeth a Petition of the Plaintiff to the King as the Supreme Magistrate for a Debt or Summe of Mony unjustly deteined from him or some Trespass or Damage done unto him for which he cannot Sue or Prosecute without a Writ Remedial or Original granted by the Lord Chancellor or Lord Keeper of the Great Seal of England Commanding the Sheriff of the County or Place where the Plaintiff layeth or desireth to try his Action if it be in Debt to take security of the Complainant for the proof or making good of his Action and to Command the Defendant or Party Complained of to pay the mony demanded and that if the Defendant do not pay the Mony upon the Sheriffs or his Officers or Bailiffs coming to him then they are to Summon him to appear before the Justices of the Court of Common Pleas at Westminster at a Return or Certain time prefixed which at the least is to be fifteen days after the Teste or Date of the Original and many Times with a Longer Return and as many more days given if the Original be sued out but fifteen days before the Terms of S. Michael and Hillary Easter or Trinity Terms but of it be procured or sued out in the later end of a Michaelmas Term and returnable Octabis Hillarii will have more then fifty days betwixt the Teste and Return and if sued out in the end of an Hillary Term returnable the first Return of an Easter Term following will have no less then 60 days betwixt the Teste or Date and the Return or if it Issue out in the end of a Trinity Term returnable the first return of a Michaelmas Term following will have no less then one hundred days betwixt the Teste or date thereof and the Return and more if it be in any of the later Returns of any of the said Terms in all which if the summons had but fifteen days betwixt the date of the Original Writ and the time prefixt the Defendant hath by intendment of Law so much Time or Respite for the payment of the mony in the shortest prefixion but a great deal more in those which are longer which by the reason and equity of our Laws is not to be understood to be easie or probably upon the Instant of the Sheriff or his Officers Commanding the Debtor to pay it but upon a reasonable and possible Time betwixt the Teste and return allowed for the payment thereof very Rich and sufficient able men not having always so much mony at hand to pay at an instant and the monyes demanded do many times in the end of the suit although it be not upon a bond or bill with a penalty or doubling of the summe appear not at all to be due or for some or a great part thereof to be unjustly required and if upon a Bond or Bill with a forfeiture doubling the principal Money or in an Action of Covenant Detinue Annuity or Accompt cannot think it just or reasonable presently to pay as much Mony as an unjust Complainant will not seldom if he may be his own Carver exact of him and in all Actions Personal whether it be for Debt or Damage some part of the time between the obteining the Kings Licence or leave to Sue in the Case of those which are not his Houshold Servants is between the Teste and Return of the Original necessary to be imployed for the Plaintiffs giving to make good his Action for more but never less our Ancient Records do often mention until some of our later ages and the Judges thereof since the Raign of King Edward the fourth in favour of the Disabilities and Inconveniencies which might happen in the Cases of many of the Common or Impoverished sort of people who otherwise would be debarred from the Justice which our Laws intended them were content to dispense with it by reteining only the reason of the Law and allow of the Sheriffs Indorsing and Returning upon the Writ the feigned names of John Doe and Richard Roe for the Sureties put in by the Complainants to make good their Complaints or Actions who being before hand not a little furnished with their weapons of offense may without any difficulty not seldom suddenly surprise the altogether unprepared Defendants our Laws not without cause believing it to be possible that Rich men might oppress the poor and that it is many times easier to offend then to defend and therefore that way of Inforcing the Plaintiffs to give Sureties or Pledges to prosecute their Actions was heretofore so strictly observed as if no Sureties or Pledges to Prosecute were put in by the Plaintiff he could not prosecute the Defendant at Law and if he made not his Action or Complaint appear to be just had in those more Legally Thrifty Times for the Kings Rights and benefit a fine set or Imposed upon him by the Judges pro falso clamore for his causeless accusation which doth frequently occur in the fine or Iter Rolls of the Judges of Assise in the Raign of King Edward the first and was Estreated and Returned into the Exchequer to be leavied upon his Lands Goods or Estate And all that or some of that
voluntatem illius qui debet domum vel curiam or by doing any thing saith an old Manuscript of Coxford Abby or Monastery which is against the will of the owner of the House or Court which King Henry the first in his Laws de Jure Regis concerning some particulars of his Prerogative and Regality did number amongst the rest and accompt to belong unto him and his Successors and in the perclose of that Law which in some Copies is mentioned to be made assensu Baronum Regni Angliae by the consent of the Barons of England it is said haec sunt Dominica placita Regis nec pertinent vicecomitibus apparitoribus vel ministris ejus sine diffinitis praelocutionibus in forma sua these are the Rights and Jurisdictions belonging to the King in his Demesne and do not belong to any Sheriffs Apparitors or their Bayliffs unless especially granted unto them By which and the HVSFASTENE an old course and custom amongst the Saxons which ordained that every house with their FOLGHERES Followers or Servants should be in Franco Plegio in some Franke pleg or Liberty where by the Courts held in those places or Justice there to be had any controversies betwixt them and others or wrongs done by or unto them might be determined the rule of the Civil Law which in many of the Customs or Municipal Laws of this and other Nations was the guide or Pole star which conducted them being that actio sequitur forum rei the Action to which our Common Laws have ever since in their Real and other actions much agreed is to be tryed in the Court where the person or lands of the party defendant are that before recited law of K. Edw. the Confessor which amongst other his highly valued Laws Enacted that Arch-bishops Bishops Earls Barons and all that had Soc a liberty of distributive Justice in their Lands or Territories and Sac a power to fine or punish such as were found guilty either by complaining without a cause or proved to have done wrong to another which gave or confirmed many a liberty or set the example of the succeeding Kings gratifying many of their Subjects with the like in making them tanquam Reguli little Princes within their own Estates or Dominions should have suas Curias Consuetudines their Courts and liberties in their view of Frank Pleg Court Leets and Court Barons and should have under their Jurisdiction etiam milites suos proprios servientes such as served them in wars or held of them by the service thereof or were their domestick or houshold servants Item isti suos Armigeros alios sibi servientes and the Esquires and servants likewise of their servants saith Bracton expounding that Law of King Edward the Confessor the King certainly should not be denied his own Franchise view of Frank-Pleg or jurisdiction to do Justice where either his service or servants were concerned or at least to be complained unto before any violent course of Law should be taken in other Courts against them for otherwise if the King should not have always had such a franchise view of his Frank Pleg or Laws or Customs Hospitii sui as Fleta terms them of his Royal House or Palace there would have been some vestigia foot steps or track to be found either in the Antient Monuments and Memorials of our Laws or of those of later ages or of some other time That the King had been an immediate or single Complainant by way of Action for any abuses only offered to his servants or contempts to his person or Royal Authority which by a long most just and necessary prescription as far as time with his Iron teeth hath left us any remembrances was always left and reserved to the authority and Jurisdiction of the Lord Chamberberlain of the Kings House and the Kings other great Officers who by the Messengers of the Kings Chamber who in such particulars have been as the Lictores Sergeants or Bayliffs pro ista vice upon such occasions to arrest and bring them to the Justice of the King in his Royal Court or Palace and must needs be as lawful or a great deal more in his own particular immediate concernment as it is for the Lord Keeper of the great seal of England or Lord Chancellor to direct the Kings Serjeant at Arms allowed to attend that great and illustrious Officer and Superintendent of the Chancery by himself or his Deputy to arrest and take into his chargeable custody the person of any that shall have committed any grand or reiterated contempt against the process orders or decrees of that honourable Court or for that or the Court of Common-pleas to make the Warden of the Fleets men or the Virgers or Tipstaves attending upon the said Courts or for the Courts of Kings Bench or Exchequer to make the Marshals or Tipstaves thereof to be the Lictores or Messengers of their punishments and displeasure or as the house of Peers in Parliament do make use of the Kings Usher of the black rod and the house of Commons in Parliament of the Kings Serjeant at Arms nor could it have been likely that the Lord Chamberlain of the Kings house who in the Reigns of our Kings Edward the first second or third and probably by foregoing and elder constitutions did in the absence of the Lord Chief Justice of England vicem gerere execute in the Kings Court as Fleta tells us the Office or place of the said Lord Chief Justice should not retain in the Government of the Kings Servants and Houshold so much power as might protect them from injuries or their Royal Master from contempts or neglects of Duties or respects to his person Palace or servants for who that hath not bid defiance to his own Intellect as well as the wisdom of former ages can pretend any shew or colour of Reason that the King should want the power or authority to do as the late blessed Martyr King Charles the first did in the apprehension of certain Watermen in the year 1632. and committing them to Bridewell for refusing to carry the French Ambassador by Water upon the complaint of the Kings Master of the Barge in the year 1634. for the apprehension of William Hockley a Hackney-Coachman for refusing to wait upon the French Embassador or of John Philpots Post-master of Rochester for dis-respects to Monsieur St. German the French Embassador or in the year 1636. for the arrest of John Clifford of Chelsey upon the Complaint of the Spanish Embassador or to cause one Robert Armstrong to be taken into custody by one of his Messengers in the year 1639. for arresting the Post-Master of St. Albans who it may be for ought the offender then knew was bringing some Packet or Letters to the King or his Lords of the Councel for the discovery of some impending dangers which would need as sudden a prevention as the Gunpowder once intended and near atchieved Treason or to
Kings Attorney and Sollicitor general and Serjeants at Law except the two Puisneys of the Kings Serjeants at Law have not only precedency before other Lawyers and men of the long Robe not Judges or Masâ—ers of Requests the later of which if but extraordinary and Advocates or Lawyers debet alios Advocatos precedere but with the Kings other Councel of Law extraordinary and the Queens and Princes or heir apparants Attorney and Sollicitor general are in their Pleadings allowed to sit within the Bars of the Chancery Courts of Justice beneath the L. Chancellor L. Keeper or Judges and are to have a prae-audience before any other Lawyers by the custome of England drawn and derived from that of the Civil Law the superintending reason of many of our Neighbour Nations which ordaineth that Advocatus Fisci the Kings Attorney general being first instituted by the Emperor Adrian praeâ—dit quoscunque advocatos etiam eo antiquiores quoniam major est autoritate is to precede and take place of all other Advocates although they be his Antients for that he is greater in authority post advocatum fisci sedere debet in foro procurator Fisci etiam ante omnes alios advocatos simplices non habentes aliam dignitatem cum Procurator Fisci etiam advocatus dici potest and next to him in the Court ought the Kings Solicitor general to sit before any other Advocates having no other dignity when as the Kings Solicitor general may in some sort be said to be the Kings Attorney general and the kings Attorneys and Sollicitors general are stiled Spectabiles a title betwixt that of Illustris antiently given to Emperors Kings and Princes and that of Clarissimus given to Senators tale officium confert dignitatem est nobile ossicium and such an Office conferreth or makes a dignity and is a noble Office and many of the Kings Maenial or Domestick Servants which are under the ranks and titles of Nobility and were not theeldest Sons of Knights are as our learned judicious Sir Henry Spelman hath observed meerly and only by their serving the King said to be Esquires or Gentlemen and Trades-men serving their Prince or the kings Sadler the kings Grocer and the kings Haberdasher the kings Lock-smith c. may by their offices or places stile themselves Gentlemen for although by the Civil Law vaenalitia seu usus vilis artificii ipso facto nobilitatem amittat a Trade consisting of buying and selling or handicraâ— doth in the very act not allow them to be Gentlemen yet Principum artifices nobiles sunt the Workmen of Princes are as it were Nobles the comprehensive term of Gentry quia omnes in dignitate positi for they have a kind of dignity belonging officiariis principum to the servants or Officers of Princes It being adjudged in the Court of Common Pleas in the 14 th year of the Raign of King Henry the 6 that the Serjeant of the Kings Kitchin or any other servant of the King in any other Office in his house is a Gentleman and it was then said by Juin the Chief Justice that those of the Kings house would be grieved if they shoul be otherwise named and it was by Newton one of the Judges of that Court then declared that Gentleman or Esquire is a name of worship that of Esquire being as antient in the Courts of our kings as the time of king Alfred who by his last will and testament recorded by Asser Menevenses gave Legacies Armigeris suis to his Esquires that Title being formerly so uncommunicable to the Vulgar as the eldest sons of Dukes and Barons have not believed themselves to be disgraced by it and in France as late as the raign of their King Francis the first who was contemporary with our king Henry the 8 th a valet de Chambre to the king was appellatio honorifica an honourable title and the French kings Karvers were no longer agoe than in the reign of our Queen Elizabeth stiled Armigeri Esquires and was not heretofore so apt to be mis-used as it is now when too many of our Barristers or Apprentices at Law do so much mistake themselves as to dream that a Tayler Tanner Butcher Victualler or Yeomans Son though nothing of kin to a Gentleman is ipso facto an Esquire when he is called to the Bar in an Inns of Court or being an Officer in a Court of Justice and admitted into an Inns of Court heretofore only destinate and appropriate to the Sons of Nobility or real not self made or created Gentry as the learned Sir John Fortescue Chief Justice and believed to be afterwards Chancellor of England under our King Henry the 6 th hath rightly observed with whom Sir John Ferne a learned Antiquary and Lawyer who lived in the later end of the Reign of Queen Elizabeth and was so great an honourer of the Profession and Professors of the Civil and Common Laws as he saith they do deserve honour and reverence of all men and referring us to Ludovicus Bolognius of the 130 Privileges due to a Doctor of the Laws declareth that they ought to be honoured in the Courts of Princes according to that saying Doctores Legum sunt honorandi ab omnibus Doctors of Law are to be honoured of all men and under that notion comprehendeth Serjeants at Law and other the Legists and Professors of the Common Law doth not disagree when he giveth us not only the evidence that none but Gentlemen were admitted into the Inns of Court but the reason thereof for that Nobleness of Blood joyned with Virtue maketh a man fit and most meet to the enterprizing of any publick service and for that cause it was not for nought that our antient Governors in this Land did with a special foresight and wisdom providâ— that none should be admitted into the houses of Court being Seminaries sending forth men apt for the Government of Justice except he were a Gentleman of blood And that this may seem a truth I my self saith he have seen a Kalender of all those which were together in the society of one of the same houses about the last year of King Henry the 5th with the Arms of their Houses and Family marshalled by their names when Gentry was in that Kings Reign so rightly esteemed and valued as he being to raise an Army to go with him into France did in that warlike age by his Edict or Proclamation prohibit any to go with him but such as had Tunicas Armorum did bear Coats of Arms or were gently born or discended except such as had served in the Battle of Agen-Court And the strict observance of admitting none into the Inns of Court but such as were born Gentlemen was so lately used in some if not all of the Inns of Court as Sir John Archer Knight now one of the Justices of the Court of Common Pleas at
no Vagabonds Masterless men Boyes or Idle persons be suffered to harbour in her Court Wherfore the Servants attending therein should not now be so much in the ill opinion causeless contempt of the Mechanick and vulgar part of the people for those which are ex meliore luto better born and more civilly educated cannot certainly so lose their way to a gratefull acknowledgement of their Princes daily protection and needed favours as to villifie or slight his Servants by imitating the sordid examples of a less understanding part of the people or want their due respects if it shall be rightly considered that our Ancestors and a long succession of former ages were not so niggard or sparing of their well-deserved respects When our Kings and Princes and the wiser part of their people supposed to be in Parliament did attribute so much unto them and so very much trust and confide in them as they did from time to time put no small power into their hands and leave no small concernments of themselves and the Kingdom to their prudence fidelity and discretion When the Lord Chancellor or Lord Keeper of the Great Seal of England who administreth the Oathes usually taken by the Lord Privy Seal Lord Treasurer of England Lords of the Kings most Honourable Privy Councel Chancellor of the Exchequer Master of the Rolls Chancellor of the Dutchy of Lancaster Justices of the Courts of Kings Bench and Common Pleas Barons of the Exchequer Kings Attorney and Sollicitor General Serjeants at Law Masters of Requests and Chancery upon and before their admission into their several Places and Offices nominates and appoints the Custos Rotulorum and Justices of the Peace in every County of England Wales some few Franchises and Liberties excepted and by his largely extended Jurisdiction committed unto his trust doth by the Writs remedial of his Soveraign guide and superintend the Cisterns and Streams of our Laws those living waters which do chear and refresh our Vallies and make them to be as a watered Garden And with the two Lord Chief Justices Master of the Rolls the other Reverend Judges and the Masters of Chancery appointed to distribute the Kings Justice according to the laws and reasonable customs of the Kingdome have their Robes and Salaries allowed and are as Justice Croke acknowledged in his argument against the Ship-money as the Kings Councel at Law the chief Justice of the Court of Common Pleas being as is mentioned in a Manuscrip of Henry Earl of Arundel copyed out of a book of George Earl of Shrowsbury Lord Steward of the houshold unto King Henry the seventh and King Henry the eighth communicated unto me by my worthy friend Mr. Ralph Jackson one of his Majesties Servants in ordinary a great Member of the Kings house for whose favour counsel and assistance in the Law to be shewed to the houshold matters and servants he taketh an yearly Fee by the Bâ—tler of England of two Tuns of Wine at two Terms of the year which is allowed in the Court of houshold When the Justices of Peace in every City and County are or should be the under Wheels in that excellently curiously framed Watch of the English Government as the late blessed Martyr King Charles the first when he so sadly forwarned the pulling of it in pieces by a mistaken Parliament and the Rebellious consequences of it not unfitly called it are at their quarter Sessions under his pay and allowance when the Assize of the bread to be sold in England was in the fourth year of the Reign of King John being thirteen years before his granting of Magna Charta ordained by the King by his Edict or Proclamation to be strictly observed under the pain of standing upon the Pillory and the rates set and an Assise approved by the Baker of Jeoffry Fitz-Peter chief Justice of England the nas one of the Kings more especial Servants as to matters of justice resident and attendant in the Kings House or Palace and by the Baker of R. of Thurnam that Constitution and Assise being not at all contradicted by his Magna Charta or that of his Sons King Henry the 3 d. Which Assise of bread contained in a writing of the Marshalsea of the Kings house being by the consent of the whole Realm exemplified by the Letters Patents of King Henry the 3 d. in the 51 th year of his Raign was confirmed and said to be proved by the Kings Baker By an Act of Parliament made in the 9 th year of the Reign of that King if the King be out of the Realm the chief Justices one of which if not both were then residing and attending in the Kings Court were once in the year through every County with the Knights of the Shires to take Assises of Novel Disseisin and Mortdancester in which if there be any difficulty it was to be referred unto his Justices of the Bench there to be ended By an Act of Parliament made in the 6th year of the Reign of K. Edward the first Wine sold against the Assise was to be by the Mayor and Bayliffs of London presented before the Treasurer and Barons of the Exchequer who then resided in the Court or Palace of the King The Statute of Westminster the 2. made in the 13th year of the said Kings Reign mentioneth That the Kings Marshal is to appoint the Marshal of the Kings Bench and Exchequer the Criers and Virgers of that and the Court of Common Pleas which at this day is done by and under the Authority of the Earl Marshal of England who by his Certificate made by his Roll of a personal service in a Voyage Royal performed by those that held Lands or Offices in Capite and by Knight Service he discharged an Assessement of Esonage by Parliament superintendeth the cognisance and bearing of Armes of the Nobility and Gentry and the duty of the Heralds and Officers attending thereupon And with the Lord Great Chamberlain before the unhappy change of the Tenures in Capite and by Knight Service into Free and Common Socage introduce and bring unto the King such as were to do Homage unto him for their Baronies or Lands By an Act of Parliament made in the 14th year of the Reign of King Edward the third and by the Kings Authority the Sheriffs of every County in England and Wales who are for the most part under the King the only Executioners of Justice in the Kingdom are three out of six for every County presented by the Judges of every Circuit the morrow after the Feast of All-Souls in every year to the Lord Chancellor or Lord Keeper of the Great Seal of England Lord Privy Seal Lord Treasurer Lord Steward the later of which at the beginning and opening of Parliaments is by his Office to administer the Oathes of Allegiance and Supremacy to every Member of the House of Commons in Parliament the Master of the Horse Lord
not to proceed in matters concerning his own particular without his being first consulted de Attornato languidi recipiendo to admit an Attorney for one that is sick Writs of Aâ—â—aint against Jurors falsly swearing in their Verdicts Writs de Aâ—sisa continuanda to continue the prâ—â—â—â—dings upon an Assise Audita querela to relieve one that is oppressed by some Judgment Statute or Recognisance Writs de Certioraâ—i de tenâ—re Indictamenti to be certified of the Tenor of an Indictment de Vtlagaria of an Utlary de tenore pedis Finis of the Tenor of the Foot of a Fine mittendo tenorem Assise in Evâ—â—entiam to send the Tenor of a Writ of Assise into the Chancery to be from thence transmitted by a Copy for Evidence into the Court of Exchequer Writs quod Justitiarii procedant ad captionem Assise impowring the Justices of Assise to procede in the taking of an Assise and his Commissions frequently granted in some special cases as Dedimus potestatem impowring the Judges or others to take the acknowledgements of Fines with many other kinds of Commissions a posse Comitatus ad vim Laicam amovendam to remove a force where a Parson or Minister is to be inducted into a Church or Benefice Commissions granted ob lites dirimendas to compose contentious suites of Law where the poverty of one of the parties is not able to endure them and the granting of a priviledge by some of our antient Kings to the Bishop and Citizens of new Sarum or Salisbury that the Iudges of Assize or Itinerants should in their circuits hold the Pleas of the Crown at that Town or City which King Edward the first did by his Writ or Mandates allow or cause to be observed and many more which might be here instanced which with the Laws and practice thereof and the reasonable customes of England do every where and abundantly evidence that the King doth not intrust his Courts of Justice or the Judges thereof with all his Regal power and all that with which he is himself invested in his politique capacity or hath so totally conveyed it unto them as to make them thereby the only dispensers of his justice but that the appeal or dernier ressort from all his Courts of Iustice is and resides in the King being the ultimate supreme Magistrate as from the inferiour Courts of Iustice in the Counties or Cities to the Superiour Courts of Iustice at Westminster-hall from the Court of Common-Pleas by Writ of Error to the Court called the Kings-Bench from that Court to the Parliament And as to some matters of Law fit to be tryed by action at Law from the Chancery unto the Kings-Bench or Courts of Common-Pleas or Exchequer reserving the equity when what was done there shall be returned and certified and even from the Parliament it self when Petitions there nepending could not in regard of their important affairs be dispatched to the high Court of Chancery and that appeals are made to the King in his high Court of Chancery from the Admiralty Court when as the process and proceedings are in the Name and under the Seal of the Lord Admiral and from the Prerogative Court of the Archbishop of Canterbury for proving of Wills and granting of Administration when the Process and proceedings are not in the Kings name but in the name and under the Seal of that Arch-bishop So as the Gentlemen of the long Robe who in the Reign of King Charles the Martyr argued against the Kings Prerogative for the just liberties of the people of England in the case of the Habeas Corpora's when they affirmed the meaning of the Statute made in the third year of the Reign of King Edward the first where there was an Exception of such not to be Baylable as were committed by the command of the King or of his Justices to be that the Kings command was to be understood of his commands by his Writs or Courts of justice might have remembred that in former times his Authority by word of mouth or in things done in his presence in matters just and legal not contradicting the established rules customes and courses of his Courts of Justice and the power and authority wherewith our Kings have intrusted them was accompted to be as valid if not more than any thing done in his Courts of Justice witness that notable record and pleading aforesaid betwixt the Prior and Bishop of Durham in the 34 th year of the Reign of that by his own and his Fathers troubles largely experienced King Edward the first which was not long after the making of that Statute concerning such as were to be bayled or not to be bayled where it was said and not denyed to be Law quod Ordinatio meaning an award or something acknowledged in the presence of the King in praesentia Regis facta per ipsum Regem affirmata majorem vini habere debet quam finis in Curia sua coram justitiariis suis levatus that any Ordinance or acknowledgment made in the Kings presence and by him affirmed was to be more credited and to have a greater force then a Fine levied before his Justices in his Courts of Justice which may be a good Foundation and Warrant for several agreements and Covenants made betwixt private persons and ratified by the King under his Great Seal of England by inspeximus and confirmations by his allowance and being witness thereunto as that of Rorger Mortimer Lord of Wigmore with Robert de Vere Earl of Oxford for the Honor and Earldome of Oxfâ—rd and the great Estate and Revenueâ—belonging thereunto forfeited by the said Earl in taking part with the Barons against King Henry the third and many others which might be instanced and are plentifully to be found in many Agreements and Covenants made betwixt Abbots and Priors and their Covents and divers of the English Nobility and great men mentioned in Master Dugdales first and second Tomes or Parts of his Monasticon Anglicanum For it was resolved in Easter Term in the fourth year of the raign of Queen Elizabeth by the then Lord Chief Justice of the Court of Common-Pleas the Lord Chief Baron and Whiddon Browne and Corbet Justices Carus the Queens Serjeant and Gerrard her Attorney General upon a question put unto them by the Lord Keeper of the Great Seal of England that in case of Piracy or other the like crimes the Queen might in the intervals or vacancy of a Lord Keeper of the Great Seal of England by a necessity of doing Justice without a Commission granted unto others to do it punish such offenders although the Statute made in the 28th year of the raign of King Henry the 8th Ca. 15th doth direct Piracy to be tryed by Commission And it was allowed to be Law in a Case put by King James that where an Affray or Assault was made by any in the Kings presence the King
Beadels and many other Attendants upon that and all other times of Solempnity to furnish out the magnificence of the City Nor should the number of the Kings Servants which the 19. undutifull Propositions and all other the unreasonable restrictions and conditions endeavoured by the late Rebellion to be imposed upon our late blessed King and Martyr did not seek to restrain or limit be thought to be too many by the addition of some extraordinaries CHAP. XI That the King being not to be limited to a number of his Servants in Ordinary is not in so great a variety of affairs and contingencies wherein the publick may be concerned to be restrained to any certain number of such as he shall admit to be his Servants Extraordinary WHen as there are many times as great a necessity of them as of those in Ordinary either as to service or state the honouring of persons well accomplish'd for services formerly done or likely to deserve it or the retaining of them near unto the King in a dependency upon him or as it were allecti or proximi as many of the Roman Emperors Servants Extraordinary were in reversion for special uses or service when time or occasion should call for it and the Grecian and Roman Western and Eastern Emperors in imitation probably of those customs and usages of the Hebrews who were more participant of the light and emanations of the Divine Wisdom did so separate those which had once been imployed in their service from their other Subjects as they would not dismiss them where age or other impediments not their own default or offences did occasion it without some mark of honour dependency or retaining of them but did ordain an Ordo Dignitatum several degrees or respects to be given unto them with a sitque plane Sacrilegii reus qui divina praecepta neglexerit a penalty that they that offended therein should be accompted guilty of Sacriledge The first degree being 1. For those which were in Ordinary 2. For Extraordinaries or such as deserved to be honoured 3. For such as did not wait but were absent 4. For such as had those titles or honour given them by certain Letters Patents or Codicils and were therefore called Honorarii it being not unusual in those antient Registers of reason the Books or Volumes of the Civil Law to find the Curiales Courtiers or Servants of the Prince stiled Milites Palatini and the Doctors and Advocates Milites literati contradistinct unto the Milites Armati a more proper kind of Souldiers or men at Armes guarding or attending upon the person of the Prince and the Supernumerarii Proximi vacantes a title borrowed from the customs of warfare and Honorarii being as it were Extraordinaries as they are at this day in the Empire of Germany France and other Countries and places and have been allowed the same priviledges with the Princes Servants in actu or agentes in ordinary as to be free from Purveyance lodging of Strangers all Parish and Country Offices ab omnibus sordidis muneribus all imployments in the Commonwealth not becoming the honour of the service of the Prince ut lege vetustissima subjaceant Jurisdictioni Magistri Officiorum they should be under the Jurisdiction of the Lord Steward of the Houshold and not be enforced to appear in the subordinate Courts of Justice and those priviledges were retained post depositam administrationem after the quitting of their services offices or places and the reason given ne sordidis astricti muneribus decus ministerii quod militando videbantur adepti otii tempore quietis amittant lest that being afterwards put upon inferiour offices and imployments they should lose the honour they had gained in the service of their Prince From which the laudable care of our King Henry the 8th did not deviate when in the 17th year of his Reign he did by advice of his Privy Counsel ordain That such of his Servants as should be found to be impotent sickly unable or unmeet to occupy their places the King of his gracious disposition being not willing that any of his old Servants should be rejected left without some competent being unless their demerits should so require did order that some convenient entertainment should be assigned for every one of them towards their being and to be discharged from attendance in his Houshold and other able meet honest and sufficient persons put in their places which entertainments upon the death of every or any the persons discharged shall cease And for such of the Yeomen of the Guard which shall be discharged the Kings Grace is contented to make them Yeomen of the Crown and in consideration of their service that such of them as have none Offices of his Grace to the value of two pence by the day shall have the wages of six pence by the day uncheque So as the reason being the same and since by a common and customary usage in the Courts of Princes arrived to a jus gentium or Law of Nations it may from thence and the Civil Law with warrant and authority sufficient be truly affirmed that much of our method and courses of Parliaments Feudal Laws Tenures Great Offices of the Crown Grand Serjeanties Priviledges of the Kings Servants Honours and respects due to Majesty rules of Honour Precedency and Dignities as well within our Kings and Princes Courts as without our Military and Civil Orders and Government and many of the proceedings in our Courts of Justice and the Latine part and superintendency of our High Court of Chancery in granting of our Kings Rescripts and Writs remedial to prevent a failer of Justice have had their patterns and originals well approved by right reason and our Common Laws and reasonable Customs By directions of which Law of Nations and the Civil Law from whence our Common Laws have borrowed many a maxim and much of their excellency and reason our late blessed Martyr King Charles the First as many of his Royal Progenitors and Predecessors had done before him did sometimes as his occasions or affairs perswaded him admit some to be sworn his Chaplains extraordinary where the worth or budding eminency of some Divines or Students in Theology attracted his eye or intentions to preferre or take them nearer to himself to be his Chaplains in ordinary upon the next avoidance or vacancy or otherwise to preferre them in some Church Office or Dignity as in the year 1628. Doctor Miclethwaite Master of the Temple and an eminent Preacher Doctor Samuel Ward a man more then he should have been averse to the Discipline of the Church of England Peter Heylin a well deserving Divine and dutifull Son of the Church in the year 1632. the learned Robert Saunderson Batchelor of Divinity afterwards Bishop of Lincoln and a great light of the Church Ralph Brownrigge Doctor of Divinity afterwards Bishop of Exeter sworn in the year 1638. one of his Majesties Chaplains Extraordinary and in
under His Seal and Teste Me Ipso directed to all His Courts of Justice And are as Bracton saith Formata ad similitudinem Regulae Juris framed by and according to the Rules of Law whiâ—h warranting many of the Proceeding thereof are in the Assize betwixt Wimbish and the Lord Willoughby in Trinity Term in the sixth year of the Reign of King Edward the Sixth said and not denyed to be Law and the Act of the King but not of the Chancellor So as they who shall endeavour to impose upon other men that the King is not by Law presumed to be present in his Court of Kings Bench where the Records do mention the Judgements given therein to be coram Rege before the King as if he were personally present with the Judges of that Court who are assigned to assist Him may as to the Kings Power in matters of Justice and over the Judges and Courts delegated by Him do well to seek a reason which is justly to be feared will never be found why it should be Law or Reason for King Alfred in the discords or ignorance of his Subordinate Judges in the distribution of Justice to hear and determine the Causes Himself or for King Canutus long after to judge the Causes of such as complained unto him when our Bracton doth not at all doubt of it when he saith that the Judges nullam habent Authoritatem sed ab alio i. e. Rege sibi Commissam cum ipse qui delegat non sufficiat per se omnes Causas sive Jurisdictiones terminare they have no Authority but what they are intrusted with by the King who granted it when as he who delegated them is not able or sufficient by himself to hear aad determine all Causes in every Jurisdiction unto which our Register of Writs that Pharmacopeia Director and Magazine of Medicines and Remedies for many a Disease in the Estates and Affairs of the People which Justice Fitz Herbert in his Preface to his Book De Natura Brevium of the Nature of Writs calleth The Principles of the Law and the Foundation whereupon it dependeth and in Plowdens Commentaries is as to many things truly said to be the Foundation of our Laws and so Authentique as Brown Justice in the Case betwixt Willon and the Lord Barkley in the third year of the Reign of Queen Elizabeth declared that all Writs were to pursue the Forms in the Register and it was enough to alledge so is the Register will easily assent and all our Books of the Law all the Practice and Usage of our Courts of Justice all our Records Close and Patent Rolls and our Kings hearing and determining of Differences betwixt the Common Law and Ecclesiastical Courts and Jurisdictions and their making of Orders to reconcile the Proceedings of the severall Judges thereof and the like betwixt the Admiralty Court and the Courts of Common Law ordered decided and agreed before King Charles the First and His Privy Council in the ninth year of His Reign the Judges in criminal Matters not seldom attending the King for a Declaration of His Will and Pleasure where a Reprieve Pardon or Stay of Execution shall be necessary will be as so many almost innumerable powerful and cogent Arguments to justifie it And a common and dayly Experience and the Testimony of so many Centuries and Ages past and the Forme used in our Writs of Scire Facias to revive Judgements after a year and a day according to the Statute of Westminster the 2. with the words Et quia volumus ea que in Curia nostra rite acta sunt debite executioni demandari because we would that those things which are rightly done in our Courts should be put in execution c. may bear witness of that Sandy Foundation Sir Edward Coke hath built those his great mistakings upon and those also that the King cannot propria Authoritate Arrest any man upon suspition of Treason or Felony when the Statute made in the third year of the Reign of King Edward the First expresly acknowledgeth that the King may Arrest or cause men to be Arrested as well as His Chief Justice without distinction in ordinary and civil or criminal matters and when by the beforemention'd Opinions of Sir Christopher Wray Lord Chief Justice of the Queens Bench Sir Edmond Anderson Lord Chief Justice of the Court of Common-Pleas and of all the Judges of England delivered under their hands in the Four and thirtieth year of the Reign of Queen Elizabeth it was acknowledged that She or the Lords of Her Privy Council might do it And in the before recited great Case of the Habeas Corpora in the Reign of King Charles the Martyr there was no question made but that the King might lawfully do it with a cause expressed in the Warrant And many a Nobleman and others hath in several of our Kings Reigns either upon suspition of Treason or Flagranti Crimine in or very near the acting of it or upon great Misdemeanors been Arrested by our Kings and Princes onely Command and sent Prisoners to the Tower of London As the Great Mortimer Earl of March by King Edward the Third the Pompous Cardinal Wolsey and Queen Ann of Bulloin by King Henry the Eighth the Duke of Northumberland by Queen Mary the Duke of Norfolk and Earl of Essex by Queen Elizabeth for Treason Robert Earl of Somerset and his Lady committed for Felony Sir Tho. Overbury for refusing to go Ambassador when he was sent by King James Henry Earl of Oxford for striking up a Great Lords heels in a Solemnity of a great Feast when the French Ambassador was entertained in Westminster Hall for presuming to offer to wash his hands after the King had washed in the Basin which as Lord Great Chamberlain of England he had holden to the King Thomas Earl of Arundel for marrying the Lord Matravers his Son to the Sister of the Duke of Lenox and Richmond without his Licence and Philip Earl of Pembroke and the said Lord Matravers for striking and scuffling with one another in the House of Peers in Parliament and some others by King Charles the First and some by His now Majesty and our Parliaments have many times in some Charges brought against offenders of the Weal Publique petitioned our Kings and Princes to do it and many others have been so committed in the Reigns almost of all our Kings and Princes of which every Age and History of this our Kingdom can give plentiful Examples which we may believe to have been done by good and legal Warrant when in all our many Parliaments and Complaints of the People therein such Arrests and Imprisonments have not been in the number of any of their complained Grievances for otherwise what Power Writ Authority or Warrant of a Judge or Justice of Peace could have seiz'd upon that Powerful Mortimer and taken him in Notingham Castle out of the amorous Embraces of Queen Isabel the
then Kings Mother Or the popular greatly belov'd Duke of Norfolk out of the County of Norfolk And Sir Edward Coke that great Lawyer so deservedly call'd might if he were now again in his house of clay and that Earthly Honor which his great Acquests in the Study and Practice of the Law had gained him do well to inform us that the Report of Husseys the Chief Justice who is by him mistaken and called the Attorney-General to King Henry the Seventh was any more than an Hear-say and nothing of kin to the Case put by the King whereupon they were commanded to assemble in the Exchequer Chamber whether those that had in those tossing and troublesom times been Attainted might sit in Parliament whilst their Attainders were reversing And the Case concerning the King himself whether an Attainder against himself was not void or purged by his taking upon him the Crown of England or that which in that Conference was brought in to that Report impertinently and improperly to what preceded or followed by the Reporter of that Conference was not at the most but some by discourse and not so faithfully related as to mention how farre it was approved or wherein it was gain-sayed by all or any or how many of the Judges it being altogether unlikely that if Hussey had been then the Kings Attorney-General he would have cast in amongst those Reverend Judges such an illegal and unwarrantable Hear-say of an opinion of the Lord Chief Justice Markham in the Reign of King Edward the Fourth whom that King as our Annalist Stow recordeth displaced for condemning Sir Thomas Cooke an Alderman of London for Treason when it was but Misprision said unto that King That the King cannot Arrest a man upon suspition of Treason or Felony because if he should do wrong the Party cannot have an Action against the King without a bestowing some Confutation Reason or Arguments against it which the Reporter was pleased to silence And was so weak and little to be believ'd an Opinion as the practice of all the Ages since have as well as the Times preceding disallowed and contradicted it and whether such an Opinion can be warranted by any Law or Act of Parliament And whether the King may not take any Cause or Action out of any of His Courts of Justice or Equity and give Judgment thereupon and upon what Law Reason or Ground it is not to be done For if the Answer which Sir Edward Coke made to what the King alledged That the Law was grounded upon Reason and that he and others had reason as well as others That true it was God had endued His Majesty with excellent science but His Majesty was not learned in the Laws of England and Causes which concern the Life and Inheritance or Goods of his Subjects which are not to be decided by natural Reason and Judgment of Law which Judgment requires long study and experience And when the King was therewith greatly offended and replyed That he should then be under the Law which was Treason to be said answered that Bracton saith That Rex non debet esse sub homine sed sub Deo Lege That a King ought not to be under man but God and the Law shall be compared with the Opinion of Dyâ—r Lord Chief Justice of the Court of Common-Pleas and the Judges of that Court in the Case betwixt Greâ—don and the Bishop of Lincoln and the Dean and Chapter of Worcester upon a Demurrer in a Quare Impedit in the eighteenth and nineteenth year of the Reign of Queen Elizabeth reported by Mr. Edmond Plowden as great and learned a Lawyer as that Age afforded and one whom Sir Edward Coke doth acknowledge to be no less did allow and were of opinion That the King cannot be held to be ignorant of the Law because He is the Head of the Law and ignorance of the Law cannot be allowed in the King there will be as little cause as reason to dote upon such Conclusions especially when the erronious Mis-application and evil Interpretation of that alledged out of Bracton will be obvious to any that shall examine the very place cited that his meaning was that where he said that the King was sub Deo Lege under God and the Law it was that he was onely non uti potentia sed judicio ratione And in other places of his Book speaking who primo principaliter possit debeat judicare who first and principally shall and may judge saith Et sciendum quod ipse Rex non alius si solus ad hoc sufficere possit cum ad hoc per virtutem Sacramenti teneatur astrictus And it is to be understood that the King Himself and none other if he alone can be able is to do it seeing He is thereunto obliged by His Oath Ea vero quae Jurisdicâ—ionis sunt Pacis ea quae sunt Justiciae Paci annexa ad nullum pertinent nisi ad Coronam Dignitatem Regiam nec a Corona seperari poterint cum faciant ipsam Coronam for that which belongeth to his Jurisdiction and that which belongeth to Justice and the Peace of the Kingdom doth belong to none but the Crown and Dignity of the King nor can be separated from the Crown when it makes the Crown so as those who should acknowledge the strength and clearness of a Confutation in that which hath been already and may be said against those Doctrines of Sir Edward Coke may do well to give no entertainment unto those his Opinions which nulla ratione nulla authoritate vel ullo solido fundamento by no reason authority or foundation can be maintained but to endeavor rather to satisfie the world and men of law and reason whether a Soveraign Prince who as Bracton saith habet omnia Jura sua in manu suâ— quae pertinent ad Regni gubernaculum habet etiam Justiciam Judiciam quae sunt Jurisdictiones ut ex Jurisdictione sua sicut Dei Minister Vicarius hath all the Rights in his hand which appertaineth to the Government of the Kingdom which are Jurisdictions and as His Jurisdiction belongeth unto Him as He is Gods Vicar and Minister is in case of Suspition of Treason or Felony where His ever-waking Intelligence and careful Circumspections to keep Himself and People in safety shall give Him an Alarm of some Sedition Rebellion or Insurrection and put on His Care and Diligence to a timely Endeavor to crush or spoil some Cockatrice Eggs busily hatching to send to His Lord Chief Justice of the Court of Kings Bench or in his absence out of the Term some Justice of Peace for a Warrant to Arrest or Apprehend the party offending or suspected which our Laws and reasonable Customs of England did never yet see or approve and when such offenders are to be seized as secretly as suddenly Or what Law History or Record did ever make mention of so unusual undecent
Laws of this Land said that it was an ordinary Complaint as well in the Temporal as the Civil and Ecclesiastical Courts that our Lawes were far otherwise interpreted than they were in former Ages and declared that the King by communicating his Authority to his Judges to expound his Lawes doth not thereby abdicate the same from himself but may assume it again unto himself when and as often as he pleaseth And was long before that so believed to be consistent with our Magna Charta the doing of Justice to his people and the dernier resort or ultimate Appeal as Saint Paul did unto Caesar and so desirable by those that could have remedy no where else as Reginald Basset having great Suites with William de Harecourt Thomas de Astley and other Knights that held of the Honor of Leicester did in the eleventh year of the Reign of King John give as an oblation two Palfreys to the King that the Cause might be heard before him wherein he got the better as appeareth by a Fine of 200 Marks the next year after paid into the Exchequer by the said Thomas de Astley pro falso clamore for not proceeding in his Suit or Claim against him For certainly in that great and most prudent Judgment and Justice of Solomon in the Case of the true and false Mother claiming the child when al Israel heard of the judgment which the King had judged and they feared the King for they saw that the wisdom of God was in him to do Judgement that so justly admired piece of Justice was as well and legally done in his House or Chamber as if it had been done by him in the Sanhedrim or any of his Courts of Justice In the evidencing whereof although the Arguments by me used and the Authorities cited may to the more learned and lesser part of the people seem to be too many needless or superfluous yet they may to others appear to be as profitable as necessary to undeceive or antidote all such who having a Magna Charta of their Fancies do metamorphose all they can our better Magna Charta and make their disobedience conveniences or interest the Standard and Rule of their obedience and may be more and more mislead or infected by the Errors of the opinions delivered for Law in the Case before recited of the Prohibitions and to wean them from those dangerous Antimonarchical Doctrines which they had suck'd in the late times of confusion when our Lawes and right Reason attending them and even Truth it self were by an usurped power false authority and â— mechanick and ignorant part of the people lead by a rebellious party persecuted banished or affrighted Wherefore they who do delight to oppose and cavil Regal Authority by gleaning all the objections which they can either frame or hear of and put the Law upon a Rack or Torture to wring and wrest out of it any thing that may help to accommodate their distempered and unruly Fancyes may think they are in the Road and High-way of Wisdom and Applause but will in the end whilst they forget the duty of Subjects to their King and the Commands of God to honour and obey him find themselves to be more than a little deceived and to be far enough out of it and might do better to hasten out of the sinful ways they walked in and the unsafety of the Paths they have trod and travelled in and help to still and put to silence rather than increase and foment those causeless complaints wherewith too many of our Nation surfetting upon happiness do too much affright and afflict themselves and others in their opposing the just priviledges and protection of the Kings Servants And remember that although there are few evils or not to be justified matters of Fact as well as those which have been good and vertuous which have not left some Vestigia records or precedents to after Ages and it hath not been unfitly said that Exempla illustraâ—t non probant that Examples may illustrate but not prove yet the precedents and examples which are founded and built upon Law Right Reason and Truth as these by us alleaged on the part of the Kings Servants have been are to be heeded and harkened unto and the contrary rejected That the instances and examples brought by me out of the Civil and Cesarean Laws ought to oblige as they do with many other Nations propter aequitatem in regard of the Equity and reasonableness thereof and more especially when ex jure gentium naturali ratione by the Law of Nations and Nature they are in the particulars by me endeavoured here to be asserted not only by them but our Common Laws and reasonable Customs of England to be justified and maintained And that it is and should be the Interest of all the good people of England to preserve the Honor of the King and that the Bonds of gratitude in a return of what they have in their Liberties and Priviledges received of him and his Royal Progenitors should perswade them not to deny unto him those just Rights which by Law do belong unto Him and his Servants CHAP. XXI That a care of the Honor and Reverence due unto the King hath been accompted and is and ought to be the Interest of all the People of England and that the Servants and retinue of a Soveraign Prinee who hath given and permitted to his Subjects so many large Liberties Immunities Exemptions and Priviledges should not want those Exemptions Immunities Customs and Priviledges which are so justly claimed by them FOR every man who hath not bound himself more than as an Apprentice to a Spirit or Custom of contradiction of Authority and made himself a slave to wickedness and a Companion of those that speak evil of Dignities may confess that it is and should be every mans Interest to observe the fifth Commandement of God in that Sacred and dreadfully pronounced Decalogue to Honor and reverence the King and common Parent and that St. Peter hath so conjoyned the Fear of God and Honor of the King as that the one cannot be without the other and it is obvious to every mans understanding that where there is Honor there seldome wants obedience and where there is an obedience Honor most commonly doth bear it Company so that if the Law of God Nature and Nations and the municipal Laws and Customs of all the Countreys Kingdoms and Common-Wealths of the World where Reason hath got any admittance have submitted unto and acknowledged a Majesty and more especial Honor to be due unto their Supreme and Soveraign si Majestas quasi major status dicitur quis non fatebitur majorem statum esse Regis in suo regno and if Majesty is so called in regard of a greater State and Degree who will not acknowledge that a King is greater than any in his Kingdome certae sunt saith Besoldus affectiones quae superioritatem concomitantur sine quibus
operate or deserve to be a Cause to Priviledge themselves their Estates or Maenial Servants from Arrest or disturbance and such a Priviledge in Parliament in the time of an Adjournment which hath sometimes continued for several Months should be allowed and thought reasonable when their business which was the cause of it was all that time in suspence or abayance and that the King who granted and allowed those Priviledges should not enjoy the like for his own Servants who are dayly busied in the Safety Honour and attendance of his Person and the great Affairs of the Kingdom and that such a Cause should produce that effect for them and their Servants and the King who desireth but the like effect or production from one and the same Cause should not enjoy it for his own Servants and that â—adem ratio should not in the Kings Case as well as in the Case of any of his Subjects produce and be a Cause of the like Law or Liberty who doth not claim the Hearing of those causes where the Plaintiffs are not his Servants as the King of France who by his Commissions of Commitimus Impowers a Court to hear and determine Causes and concernments of his Servants but only that they should ask leave before they proceed against them in any of his Courts of Justice which the Plaintiffs shall make choice of Shall the Generall or Commander of the Armies or Guards Forts or Garrisons of the King and the Admirall of a Navy or Ships have a power not to permit any of their Officers or Souldiers to be Arrested or Imprisoned without Licence first obtained and shall the Servants of the King in the attâ—ndance upon his Sacred Person in the Watch and Care of them and the Publick Welfare as well in the time of War and Peace which not seldome disapoints the horrid effects of a people-tormenting War not have a like Priviledge Are the superiour Courts of Justice not blamed when the Judges thereof by the Kings Authority can supersede Actions in Inferiour Courts many times but upon the pretence of Actions depending in their Superiour Courts as to reverse an Utlary or the like in eundo redeundo when it is not every day or all days or but some hours business or can the Justices of the Court of Common Pleas Priviledge the Serjeants at Law and forbid that they should be Sued in any other Court when they do plead at other Courts as well as in the Court of Common Pleas and are so numerous as if one by an Arrest or Impriment should not be able to move or plead his Clients business the Client having all the Writings in his own or his Attorneys custody may have and retain another Serjeant at Law who can as well understand his business to look unto it and not only protect them but the Clerks of the Serjeants at Law and in the Vacation and at their Chambers far distant from Westminster Hall when the business of the Law and Courts of Justice are laid to sleep and take their rest and that the Justices of that and other the Superiour Courts can by the Kings and not their own immediate Authority Priviledge Prothonotaries and all other Officers and Clerks of their several Courts and their Clerks when they have or may have other Clerks to do their business And the Warden of the Fleet Cryers and Tipstaves in times of Vacation and as there shall be occasion Unattach Goods and discharge Bonds and Sureties given for Appearance when there cannot be any just cause or necessity untill the Term ensuing for their attendance and Priviledges and keep from Arrest by the Inferiour Courts their Attorneys who are no Members of their Superiour Courts and even the Attorneys Clarks And not only allow that Priviledge to the immediate Officers of their Courts but extend it unto their Clarks that are subservient unto them and not deny it as hath been before remembred unto a Filacers horskeeper Their Writs of Priviledge in the Kings name declaring and publishing that such breaches of Priviledge are in nostri â—ontemptum curiae nostrae in Contempt of the King and his Court that such Priviledged person eundo redeundo in going and coming to his Courts oâ— Justice is and ought to be sub protectione nostra under the Kings protection tam ex Regia dignitate quam ex antiqua consuetudine as well in regard of his Dignity as by antient Custom is to be Ptiviledged Did Justice Vernon one of the Justices of the Court of Common Pleas in the time of Vacation when a man indebted having to an Action given special Bail before him at his Chamber in Serjeants-Inne in Chancery-lane and coming out of the Gate was Way-laid and Arrested by some Serjeants at Mace or Catchpoles of London and Arrested upon some other mans Action lay down made an Out-cry and refused to be their Prisoner of which the Judge being informed commanded the Catchpoles and Prisoner to be brought to his Chamber where they being something Surly and refusing to deliver him he threw of his Gown and taking one of them by the shoulder whereof I was an eye Witness did so shake him and threaten to commit him and his fellow Catchpoles as he enforced them to release the Prisoner and suffer him to escape And shall not the King who is the Constituent Principle and primum incipiens the only cause suppoâ—t and maintenance as well as giver of all Immunities Exemptions Franchises and Priviledges of the Kingdom Not be able to do as much as those unto whom he hath granted and permitted it and protect and Priviledge his Domestick Servants or men imployed by him but like an old Isaac over liberal to a Craving Jacob have nothing in reserve of Priviledges or Favors for his Servants who have attended our David when he was in all his Troubles and deserved better than many a participation of his Blessings or shall his Subjects like the Sullen and Selfish Nabal have so little regard of him or his Servants that do help to guard their flocks as to receive his Benefits and make notwithstanding their grumbling Ingratitude and refractory Humours the only Retorn or acknowledgment of them Hath he and his Royal Progenitors and Predecessors as the Grecian Monarchs and Common-Wealths antiently used to do from whence the Romans after they had shut their Temple of Janus and made their Military Glories impart some of their Honour to the more Civil Imployments and gown also learned it taken such a care to protect Honour and Priviledge his Ministers of Justice and their subordinate Officers in the Courts thereof whilst they officiate in his Service therein Did the Wisdom of our King and Parliament in the 32d year of the Reign of King Henry the 8th think it no inconvenience but a benefit to the people that the greater and more necessary concerns should give may to the lesser when they Ordained which hath been ever since
peace in the said University as much as in him is And give Councell and help to the Chancellor ond Schollars of the same University to punish the disturbers and breakers of the peace there after the priviledges and Statutes of the University at all times when it shall be needful and put his help with all his Strength to defend the priviledges liberties and Customs of the said University and give the like oath unto his Undersheriffes and other his ministers when he shall come to the Town and Castle of Oxford in the presence of any who shall be deputed by the said University unto the which things the King will that his said Ministers shall be arcted and compelled The like Oath being to be taken by the Sheriffs of Cambridge and Huntington for the conversation of the rights and priviledges of the University of Cambridge Do the Jnns of Court or houses of law which for some Ages or Centuries past were appropriate and set apart for the Study of the Common lawes of England and other necessary parts of learning and endowments proper and fit to bear the sons of our Nobility and Gentry company within their houses and precincts claim and enjoy as they ought to do according to the law of Nations and the priviledges of all the Universities and places of Study in the Christian world A just and legal priviledge of a freedom from any Arrest or disturbance by the officers of any Subordinate Magistrate in matters not Capital or more then ordinary criminal And the Inner and Middle-Temples and Lincolns-Jnn being besides entituled to the like Exemption priviledge by a particular Immunity and Exemption granted anciently by some of our Kings of England long before they were Societies of law to the Owners and Proprietors of the Mannor of the New Temple then so called the old one being before scituate in or near Holborn and as well as the new one sometimes part of the possessions of the Knights Templers now containing the Inner and most part of the Middle-Temple and likewise the outer Temple without Temple-Bar extending it self as far as to part of Essex house garden and into New-street now called Chancery-Lane and Ficket or Fickelscroft now Lincolns-Inn fields upon part whereof Lincolns-Inn was built To be held sub eadem forma in the same manner as the honor or Earldom of Leicester and the Lands thereunto belonging were antiently holden with an Exemption or priviledge that no Justices Escheators Bayliffs or other Ministers or Officers of the King should enter or intermeddle therein of which the Successors and Owners and those as honourable as useful Collegiate nurseries of law and learning although they do not as our Universities and those which are in the parts beyond the Seas claim a conusance in causes and controversies at law wherein their Schollars Students and officers are concerned have been so careful to preserve those their Antient and necessary priviledges as they have upon any the least violation or attempt to bereave them thereof sallied out like so many young Lions and appeared to be the stout Propugnators and defenders thereof rescued such as have been Arrested within their Liberties whether any or none of the Society beaten and pumped the Catchpoles Serjeants at Mace or Bailiffs ignominiously shaved their heads and beards Anointed them with the costly Oyl or Syrrup of their houses of Offices or Jakes and at the Temple for a farewell thrown them into the Thames Do all men that have Liberties and Priviledges appertaining to their Estates or Persons or any Offices or Places which they hold Summon the best of their Cares and Industry to maintain them and shall it be a crime or disgrace to the Kings Servants either to be entituled unto or endeavor to Assert them Shall it be deemed just Legal and Rational that the City of London should be so carefull of their Customs and Liberties granted not only by King Henâ—y the first but confirmed by divers Kings and Queens of England and many of their Acts of Parliament as no longer ago than in the year of our Lord 1669. to Claim in their Act or common Councel that no Citizen is to be compelled to plead without the Walls of their City and their Freemen are bound by Oath as well as by many Acts of Common Councel of that City not to Sue one another out of the City where they may have remedie in their own Courts and to maintain the Franchises and Liberties thereof and that the Warrant of leuetur quaerela for the removing of any Action or Plaint depending in any of the Sheriffs Courts of that City into the Mayors Court brought by a Serjeant at Mace and Ministers of the Mayors Court shall not be refused or shall it be taken or beleeved to be inconvenient for that City or their Freemen to be drawn or enforced to Plead or be Prosecuted out of their own Courts And shall it not be as reasonable for the King in the case of his own Houshold and Domestick Servants to protect them from being disturbed in his Service by any Arrests without his Licence Doth every Sheriff of England and Wales at his admission into his Office swear that as far as hâ— can or may he shall truly keep the Kings Rights and all that belongeth unto the Crown and shall not assent to decrease lessen diminish or conceal any of the Kings Rights or his Franchises and whensoever he shall have knowledge that the Kings Rights or the Rights of his Crown be withdrawn be it in Land Rent Franchises or Suits or any other thing he shall do his power to make them to be restored to the King again and if he may not do it shall certifie the King or some of his Councel thereof and can any Sheriff of England and Wales without the acknowledgment of a gross ignorance with any safety of their Oaths or Consciences knowingly Arrest or cause to be Arrested any of the Kings Servants against the Will of his or their Sovereign Doth a Custom or civility so far prevail with the Sheriffs of London and their Clarks as when any Action is entred against any Alderman of the City or the Sword-bearer or other Officer of the Lord Mayor they will not Arrest an Alderman man or take away the Lord Mayors Sword-Bearer from before him untill they have given them a civil and private notice thereof whereby to prevent the disgrace or give them time to provide against it or procure a Truce or quiet And shall the Servants of their Masters Master if they were not more justly than they entituled to their Antient and Legal Priviledges not be so much respected which his late Majesty thought to be as undecent as Inconvenient when upon some disrespects shewed by some of that City in their endeavors to inforce upon some of his Servants the Office of Constable or Church-warden he demanding of the Lord Mayor of London whom he had caused to Attend him upon that Complaint and
Regale Necessarium OR The Legality Reason and Necessity OF THE Rights and Priviledges Justly Claimed by the Kings Servants And which ought to be allowed unto them By Fabian Philipps Seneca in Traged Octavia Act 2. Collecta vitia per tot Aetates diu In nos redundant Seculo premimur gravi Lucanus de Bello Civili lib. 9. Squalent Serpentibus Arva Durum iter ad Leges patriaeque ruentis amorem LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black-Boy in Fleet-street over against St. Dunstans Church 1671. To the Illustrious and Right Honourable James Duke Marquess and Earl of Ormond one of the Lords of his Majesties most Honourable Privy Councel Lord Steward of his Majesties most Honourable Houshold and Knight of the most Noble Order of the Garter And unto the Right Honourable Edward Earl of Manchester one of the Lords of his Majesties most Honourable Privy Councel Lord Chamberlain of his Majesties most Honourable Houshold and Knight of the most Noble Order of the Garter My Lords WEre it not that these unhappy times have brought forth a sort of reasonless men whose humors and Phancies led by an ignorance or Interest makes them unwilling to submit to Laws and the necessary and just means and Rules of Government unless their understanding which in those quarrelling and contentious Sceptickes is little enough may be convinced and satisfied with the Reason thereof these my Labours might have seemed to be as needless as Physick for those which are in Health and to be little more than a quarrel with my own Shadow But they that hear the dayly complaints now more than ever made against the Legal and just Priviledges of the Kings Servants the affronts offered to the Majesty and Supreme Authority of the King by Arresting and Imprisoning them without leave first obteyned of the Lord Chamberlain of his most Honourable Houshold or those other great Officers therein to whom it appertayneth and by bringing of Writs of Habeas Corpus by those which have been taken and Arrested by the Kings Messengers for their contempts therein to be delivered by the subordinate Courts of Justice against the mind and Authority of the King that Commissionated them and those many disparaging contests which do arise thereupon with the unwarrantable Opinions now put to Nurse that the King cannot in such a case protect his Servants without a great delay or hindrance of the Execution of Justice that they being Outlawed may be Arrested whether he will or no And that he hath so conveyed his Justice to his Courts of Justice as he is not in the case of his Servants to intermeddle therein may I hope Apologize for my undertaking and endeavors to perswade them out of those and some other their great mistakings and Errors which may produce a neglect and slighting of Authority and many an unforeseen evil consequence In the management whereof I can call my most reserved and private thoughts to witness and they will therein I am confident acquit me that I have not built an Altar to flattery or made any design or hopes of preferment to be my guide or incitement thereunto but have done what I now present unto you only to maintain the Honour and respect which is due to our Soveraign Lord the King and his Servants casta mente manu accompanied with a principle and opinion that he deserves to be accompted the greatest of villaines that would make it his design to lessen or detract from any of the Kings Rights Prerogative and just means of Government and to be ever infamous that for any ends whatsoever would endeavor to diminish or take away any of the peoples Legal Rights Liberties and Priviledges And in that middle way and path of Truth and doing Right to all Parties have no intention to give any assistance for the defrauding or too much delaying of Creditors just debts or stopping the course of Justice in any the peoples Actions or Prosecutions of their rights or for remedies against Wrongs or Injuries done unto them by any indirect course or shelter for such as shall only pretend themselves to be the Kings Servants when they are not truly or really thereunto entituled In which my Labours if any shall undervalue the Authorities which I have brought from the Laws of Nations Customs or usage of all or the most of our Kings and Princes and the Civil Law that great repository of Reason and Prudence to fortifie my assertion of the Priviledges of the Kings Servants they may please to understand that they are principally derived from the Laws of Nations Civil Law and universal right Reason consonant and agreeable to our common Laws which have instructed and guided themselves by many a maxime and piece of right Reason which they have received from them Or shall say that the Records of this Kingdom which have been cited in Conformity thereunto are only fit to make a history but do serve for no proof as some of those of the long robe have with much Injury unto them and themselves and the Truth not long ago been pleased to say or that the old things are passed away those Antiquities are obsolete and little to be regarded Wee are now upon a new way the Law hath been much altered and changed and those evidences and venerable Monuments of Time being the vestigia and footsteps of antient Laws and Customs are not to be much respected And will adventure to vent such Doctrines or Opinions and make themselves as Gutherius a learned French Advocate complaineth guilty of the neglects of those very necessary and usefull parts of Learning and Knowledge which are to be found in the Treasuries of Time and Antiquities may upon better consideration find cause to believe that the Reason of Laws doth never Expire that the unerring Wisdom of the Almighty that Writ some Laws with his own Finger and commanded his beloved people of Israel to repeat them to their Children and after Generations to ask of the days that were past and which were before them since the day that God Created man upon the Earth and that Bildâ—d the Sâ—uhite one of Jobs Friends gave him no ill Counsel when he advised him to enquire of the former Age and prepare himself to the search of his fathers and enforceth it by a Reason that we are but of yesterday and know nothing because our days upon earth are a Shadow and the giver of all Wisdom did long after by his holy Spirit in the Prophet Jeremy enjoyn them to stand in the ways and see and ask for the old Paths that in the making of new Laws and the amending or correcting of the old The knowledge of those which have been altered repealed or laid aside is not a little necessary to the end that by the old we may see the necessity and perfection of the new and by the old how to avoid the failings which might happen in the
do owe unto the Records of of this Kingdom and our great Seldens Intimacy and familiarity with them by whose learned Labours and Observations we have had the benefit of the disdiscovery and dispelling of many an Error and of the Illustration of many difficult and dark Notions and places in our Laws by which his great insights and inquiries into the English Records and Antiquities and the Seuerest part of the Learning of our Common Laws and the Civil Law and Laws of many Nations he became enabled and was as a learned Forreigner hath justly stiled him a Dictator or mighty man of Learning to giving aid and assistance tanquam de Throno sapientiae to the republick and Posterity of good Letters and Learning his Knowledge therein being so singularly exquisite Surmounting and Supereminent as he was not unfitly said to be decus gloria gentis Anglorum and if Nature could have so long have kept him from the fate of Mortality ought to have survived many Centuries more and have continued his admired Course in Learning untill the period and end of the World for that as Sir John Vaughan Knight now Lord Chief Justice of the Court of Common Pleas his contemporary and most intimate associate in those more severe Recherces and choice pieces of Learning and Antiquities hath since his death bemoaning the loss and want of such a Treasury of Learning not long since well expressed it Debuit cum mundo mori it was too great a loss to the World and after Generations that he should dye before it for although the neglect of Records and Antiquities which might have a greater veneration than this Age is willing to bestow upon it have of late been so much undervalued as to be termed rusty and motheaten and those which do give them their true esteem and value superstitious Porers and Doters upon them So as the laborious Learned and well deserving Antiquarie Mr. William Dugdale was not without Premisses to Warrant his Conclusion when with some regret mixt with facetiousness he said that for any man in these Times to busie himself in the old Records or to spend his Time Candle in the search sifting of Antiquity it would by the little incouragements which have been given unto it amount unto as small a Profit or Purpose as to set up and keep a shop to sell old fashon'd Hose Trunk-Breeches and long wasted Dublets and expect to gain by it To so great a mispris and scorn are those usefull inquiries and Lamps of Learning fallen into when as they do draw out of the pit and devouring Jawes of Time many a pretious and hidden Truth and are not seldome the only rescuers of it and was better respected when old Marculfus Wrote his Formulae's Pancirollus his deperdita and when Brissonius and Pasquier Camden Selden Linden brogius our Learned Sir Henry Spelman and Mr. Dugdale and many other Worthies not here ennumerated made it their Business to discover them and the very Learned Sir Robert Cotton was at so great an Expence of Money and Time to Redeem so many as he did from the Captivity of an everlasting Oblivion which hath taken away and concealed many a Truth from the former Generations this present Age which are to come and to dig in those hidden Mines of incomparable Treasure But when the scorners of this Age shall have surfeited with the villifying of the Wisdom of the former and the Experiences of men and times past which Solomon in the high and not to be valued Price which he did put upon Wisdom and the Incouragement which he gave to the Study and search after the Riches and Treasures thereof would never have advised them unto They or some other after them may learn to forsake that grand piece of resolved folly by what this Nation and the Kingdoms of Ireland and Scotland have so greatly suffered in the late time of Rebellion and Confusion by some of our Lawyers and too many of our Nation not understanding the Rights and Prerogative of the King which the old Records of the Kingdom did and will always abundantly witness and by too many of the Inferior Clergies Ignorance of the Ecclesiastical Histories and Primitive times which did not a little contribute unto it and believe that the greatest disservice which can be done to Princes to endeavour to advance their Prerogative beyond the Laws of the Land right Reason and the necessary and just means of Government and that on the other side they are small Friends or rather great Enemies to the Publick that will go about to perswade the People or entitle them to more Liberties than the Laws well interpreted will allow them that there is a Justice to be done to the King in giving unto him that which belongeth unto him and in not denying his just and Legal Rights as well as a Justice to be done by him in what shall concern his people and their Liberties That there is a Majesty due to Kings and that the Rights of their Courts Palaces and Servants are neither to be neglected or continued And therefore if the Romans those great Champions and Patrons of Libertie were so Jealous and Watchfull in the Preservation of the Honours and respects due unto Magistracy and Superiority as their Consul Fabius would rather for the time forget the Honour due and payable from a Son to his Father of which that Nation were great observers than relinquish any thing of it and commanded by a Lictor or Officer his Aged Father Fabius the Renowned preserver of Rome in a Publick assembly to alight from his Horse and do him the Honour due unto his present Magistracy which the good old man although many of the People did at the present dislike did so much approve as he alighted from his Horse and embracing his Son saidâ— Euge fili sapis qui intelligis quibus imperes quam magnam Magistratum imperes I may give my self an Assurance that your Lordships will with greater reason make it your endeavours not only to preserve the Rights of Majesty but the Rights and Priviledges of those great and Honourable Offices and places which you hold under the King our Soveraign and be as willing as your great and Honourable Predecessors in those Offices were to transmit them to their Successors in no worse condition than they found them Which that it may equally be done in that particular of the Kings Servants just Rights and Priviledges is the only design of the ensuing vindication of them and the Honour and respect due unto our Soveraign and submitted to you Lordships Judgment and Consideration humbly intreating your Lordships to pardon any the Errors or failings therein which in the haste of the Press my desire to keep pace with it when I was crebris intermissionibus aliorum negotiorum incursionibus frequenter interpellatus might easily happen and more especially in an undertaking of that Nature nullius ante trita pede being a Path never before as
King hath been accompted and is and ought to be the Interest of all the People of England and that the Servants and retinue of a Soveraign Prince who hath given and permitted to his Subjects so many large Liberties Immunities Exemptions Customs and Priviledges should not want those Exemptions Immunities Customs and Priviledges which are so Justly claimed by them Chap. XXI 587 Errors of the Printer PAge 22. line 2. dele now intersere after p. 34. l. 25. dele to p. 43. l. 4. dele and intersere by p. 52. l. 22 dele feirce and incult intersere rude and uncivill p. 61. l. 25. intersere always p. 62. l. 2. intersere in p. 88. l. 26. dele not p. 111. l. 28. dele yet p. 137. l. 23. dele not p. 159. interscribe Baile p. 166. l. 4. dele as p. 197. l. penult dele or interscribe as p. 217. l. 28. dele the Corsaires p. 219. l. 22. dele not p. 241. l. 6. dele unto p. 265. l. 10. dele during the and interline in a more â—itting place p. 416. l. 13. r. Aevo p. 423. l. 17. r. Conquestorem 549. in margin r. Cromwell p. 453. l. 2. intersere pleg l. 4. r. distringas l. 14. intersere them p. 460. in margin r. Valentinus l. 16. r. nobiles p. 461. in margin r. Cassanaeus l. 10. r. noblemen p 475 l. 2. r. Commons p. 527. l. 19. intersere of Westminster p. 552. from thence to page 555. mispaged in p. 543. l. 4. intersere it p. 596. l. 27. interline of p. 614. l. 20. dele an Asilum or intersere a which with some other literal faults redundancies omissions of particles and Errors of the Press are desired to be amended and excused The Reasons aswell as Law of the Priviledges and Freedom of the Kings Servants in Ordinary from Arrests and Troubles of and in their Persons and Estates before Leave or Licence obtained of the King their Royal Master and Soveraign IF the Rights of Soveraignty and Majesty and it's Legal Rational and necessary Protection and Preservation of the People in their several Interests and Priviledges That due care which they ought to take of him and the means wherewith he should do it the Honour of the King and the support and maintainance of it the Reverence and Respect which they should upon all occasions manifest to their Prince and Common Parent and the influence which all or most of his affairs have or may have in their successes and consequences Good or Evil upon all or the greatest part of the Affairs of the People were not enough as it is abundantly sufficient to perswade them to an abstaining or abhorrency from the Incivility of late practiced to Arrest or Trouble the Persons or Estates of the Kings Servants in Ordinary before Leave or Licence obtained of the King their Royal Master and the Soveraign aswel of the one as the other For he that hath not been a very great stranger to reason and the Customes and Laws of this Nation aswell as others may without any suspicion of Error acknowledge that it is and will be a due to Majesty and the Servants of it Yet the Civility long ago in Fashion and not yet abolished in the Neighbourhood and Custom of Mankinde one towards the other might invite them unto it When it hath been heretofore a part of the Law of Nations Nature Christianity Neighbourhood Civility and the Practice thereof which no Law or Good Custome hath yet repealed not to Arrest or bring into question at Law a Neighbours Servant for a Debt due or Injuries received without an Intimation or Notice first given or a kind of Licence obtained to or from that Servants Master to the end that the Love and Respect which ought to be betwixt them might not be dislocated or disturbed and the offending Servants Masters attendance Business or Affairs prejudiced And being constantly held and observed betwixt Friends Relations Kinred Neighbours and even Strangers where any Respect was thought fit to be tendered did probably give a Rise or beginning to that long and experimented Adage or Proverb Love me and Love my Dog Insomuch as a Neighbours Dog causing some mischief or Inconveniences by killing of Sheep or biting such as he supposed were not well willers to the Family and came to his Masters house is not troubled or put into any danger of Beating or Hanging without a Complaint first made to his Master thereof for where the Master hath any respect his Servants and all that do belong to his Family do not seldom partake of it From all which or some of those Causes or Grounds Rights of Soveraignty and duty of the People tacito rerum antiquitatis consensu by a long usage and consent of time and Antiquity came that hitherto uncontroul'd usage and Custom allowed and Countenanced by our Common Laws and reasonable Customs not contradicted or abrogated by any Act of Parliament or Statute Laws That the Kings Maenial Servants and Officers in Ordinary should not be Taken Imprisoned Arrested or Compelled to appear in any Courts of Justice in Civil Actions or Causes without a Petition for Leave or Licence obtained First delivered unto the Lord Chamberlain of the Kings Houshold or other great Officer of the Kings under whose more Immediate Jurisdiction such servant or Officer is whereupon after a Citation of the party and if for debt or otherwise a short and reasonable time as six moneths or something less which in the Ordinary course of Process and Proceedings at Law and the vacations and absence of the Terms is not seldom as soon as they could by Arrest or Compulsion arrive or come unto their Ends and many times a moneth or a Fortnights time prefixed for satisfaction is as easily procured as asked SECT I. That there is a Greater Honour due unto the Palace and House of the King then unto any of the Houses of his Subjects FOr we may well believe that our Laws Reasonable Customs and the Practice of our Forefathers were not out of the way or mistaken in their Respects to the Servants of their Prince when his Aula House or Court wherein he and they Inhabited as a place separate from Common uses or Addresses tanquam Sacra had a Majestatem quandam certain awe or Majesty belonging to it which was as Ancient as the days of King Ahasuerus that great Monarch of Persia and Media who Raigned from India unto Ethiopia over an hundred and twenty seven Provinces when Esther as we are informed by Sacred Writ could alleage that all the Kings Servants and the People of the Kings Provinces did know that whosoever whether man or woman should come unto the King into the Inner Court who is not called there is one Law of his to put him to death Except such to whom the King shall hold out the Golden Scepter that he may live And none might enter into the Kings Gate clothed with sackcloth Tiridates the great King of Armenia
duce venientem aut ad illum ambulantem in Itinere inquietare quamvis culpabilis sit no man ought to be molested in his journey or going to or from the Dukes Court although there might be any Action or Cause to trouble him By the Laws of the Lombards or Longobards si quis ex Baronibus nostris ad nos venire voluerit securus veniat illaesus ad suos revertatur nullus de Adversariis illi aliquam Injuriam in itinere aut molestiam facere praesumat If any of our Barons have an intent to come unto us he is safely to go and come and none of his adversaries are to do him in his Journey any wrong or Injury By some Laws made in the Raigns of the Emperors Charlemaigne and Lewis his Son nullus ad palatium vel in hostem pergens vel de Palatio vel de hoste rediens tributum quod transituras vocant solvere Cogatur That no man coming to his Palace or going against the Enemy or returning should be compelled to pay the Tribute called Passage-money The Tractatoria Evectiones allowed by the Western and Eastern Emperors that Stables and Provisions of Horse-meat and mans meat should be provided sumptu publico at the Peoples charge for such as Ride post Travailed or were sent upon the Emperors Affairs may inform us how great the difference is and ought to be betwixt the Kings Affairs and those of the Common People The Laws of the Wisigoths a People not then much acquainted with Civilities compiled about the year or Aera of our Lord 504 may teach us the value of Princes cares of their own and the Publick Affairs managed by their Servants or whosoever shall be imployed therein Quod antea ordinare oportuit negotia Principum postea populorum when they declared that the Affairs or concerment of the Prince ought to take place of those of the People Quia si salutare Caput extiterit rationem colligit qualiter Curare cetera membra possit because if it be well with the head it will be the better able to take care of the rest of the Members Et ordinanda primo negotia Principum tutanda salus defendenda vita sicquè in statu negotiis plebium ordinatio dirigenda ut eum salus componens prospicitur Regum fida valentibus teneatur salvatia populorum That in the first place the business of the Prince the safety of his life and the defence of his Person are to be heeded and the Affairs of the People so Ordered as whilst a sufficient provision is made for the safety of the Prince the good of the People may be established Of which our English Laws have such a regard as they would some few Cases only excepted dispence with any man 's not appearing or coming to Justice If he though not the Kings servant in Ordinary sent by His Attourney the Kings Writ of Protection signifying that he was sent or Imployed in the Kings Service That if any Archbishop Bishop Earl or Baron do come to the King by His Commandment passing by any of His Forrests he might notwithstanding the great severity of the Forrest Laws against such as did Steal or Kill any of the Kings Deer or Venison take or kill one or two in their going and return The Register of Writs doth bear Record that where one of the Kings Servants hath been returned of a Jury or Summoned probably to be a witness or upon some other occasion to attend some Inquisition or Inquest to be made in any other place then the Kings House or before any other Judges or Magistrates a Writ hath been sent under the Great Seal of England to excuse his absence because he was the same day to attend the Steward and Marshal of the Kings House about some affairs of the Houshold which may shew that the King had a mind aswel as reason not to permit the necessary attendance of His own Servants in or upon His Houshold occasions to be omitted to wait upon strangers or other mens busines in Courts or matters of Justice And the Law doth so much prefer the Kings business above the Common Peoples as that all Honor and Reverence is to be given to the Kings Privy Council For that as Sir Edward Coke saith they are partes Corporis Regis incorporated as it were with him are profitable Instruments of the State bear part of his cares and which is no more then what the Civil Law allows them when it terms them Administri Adjutores Adsessores helpers and Adsessors qui arcanis Principis interesse meruerunt in Contubernium Imperatoriae Majestatis adsciti and which deserve an Interess in the Princes secrets and affairs of State and are as Spartianus saith admitted as it were into the Society of Royal Majesty Where the body of a Debtor before the Statute of 25 of King Edward the third have by some been believed not to have been liable to Execution for debt at the Suit of a Common Person yet it was adjuged to otherwise in the Kings Case for that Thesaurus Regis est pacis vinculum Bellorum nervi for otherwise the King might want His Money or Treasure which is the Bond of Peace and Sinews of War Protections under the Great Seal of England have not only been granted by our Kings but allowed by their Judges to secure some Merchants Strangers from Arrests or Trouble in Corporibus rebus bonis in their Persons goods or Estates until the Debts and Money which they did owe the King should be satisfied and to suspend any Judgements or Executions had against them for other mens Debts until the King should be satisfied the monys due unto him And in the mean time taking them and their estate in their Royal Protection did prohibit any Process against them to be made in any of their Courts of Justice or that they should be Arrested or distrained for any debts or accompts the Kings debts not being satisfied And although by an Act of Parliament or Statute made in the 25 th year of the Raign of King Edward the third cap. 19. Their other Creditors might notwithstanding bring their Actions and Prosecute thereupon yet they were not by that Statute to have Execution upon any Judgements gained for their Debts unless they would undertake to pay the Debts due unto the King and then he should be authorized to sue for recover and take the Kings Debt and have Execution also for his own Debt the Preamble of that Statute mentioning that during such Protection no man had used or durst to implead such Debtors In the 8 th year of the Raign of King Henry the 6 th it was agreed in Parliament that all matters that touch the King should be preferred before all other as well in Parliament as in Council And no longer ago then in the 34 th and 35 th years of the Raign of King
380 Ordained that the Earls and Masters of Requests should be exempted from all other Publike charges and upon Complaints that in their Progress their Servants received or took too much of the People did Ordain that when the Emperours went in Progress sacros vultus inhiantibus fortè populis inferentes should bless the people with their Presence their Servants and Attendants nè quid accipiant Immodicum should not be unreasonable or Immoderate in it the right use of which Ancient Custome or manner of the Oblations or gratifications of Subjects Inhabiting in any great Town or City when our Kings of England passed by or thorough them being probably derived or come unto us from this or the like Laudable Observances of Rights and Dues to Majesty in return of Gratitudes to their Prince His Followers or Attendants for procuring or putting him in minde to come that way and give them the well-come opportunity of receiving new Graces or Favours or making acknowledgements for many formerly bestowed upon them by him or his Progenitors By a Rescript or Constitution of the Emperours Theodosius and Valentinianus about the year of our Lord 386 aeternâ lege as they there term it by a Law for ever or unalterable Omnes cubicularii All the Chamberlains or Bed-chamber-men Except some of greater Eminencie therein mentioned were to be freed from Pourveyance and Cart-taking à sordidis muneribus from all Publike and Inferior Offices not concerning the Immediate Service of the Prince and their Houses in the City from the Harbingers upon great Penalties unto such as should molest them therein and the reason thereof is therein given nè sordidis astricti muneribus decus ministerii quòd militando videbantur adepti otii tempore quietis amittant to the end that the Dignity and quality of their Places which they obtained by their Services should not be lost in the times of rest and quiet and Inter Cubiculares amongst those which attended the Royal-chambers sunt qui sacrae vesti deputati sunt those which belong to the Royal Robes primicerii sacri Cubiculi id est qui primum locum gradumque obtinent inter Cubicularios and the Primicerii or Chief of the Bed-chamber probably the Gentlemen of the Bed-chamber were comprehended amongst them The Emperour Leo about the year of our Lord 460 in a Rescript Johanni Comiti Magistro Officiorum the Great Master of His Houshold ordained that Cubicularios tam sacri Cubiculi sui quam venerabilis Augustae quos utrosque certum est obsequiis occupatos Aulae penetraliis inhaerentes diversa Judicia obire non posse ab observatione aliorum Tribunalium liberati essent their Chamberlains or Bed-chamber-men as also those of the Empress or Imployed in any of their Services and the affairs of the Court who could not attend divers Tribunals should be exempted from the Obedience of them ut in sublimitatis solummodò tuae Judicio propositas adversus se excipiunt actiones to the end that they might upon occasion be only summoned to his Honourable Tribunal and the like Priviledge saith Cuiacius was thereby also allowed unto those qui sacrae vesti deputati fuerunt which belonged to the Royal Wardrobe The Emperour Zeno about the year of our Lord 480 Decreed that the Senatours or other Honourable Persons should not be obliged to give Bail to any Action and illustre habent privilegium ut de eorum Criminibus nemo cognoscat inconsulto Principe That the Nobility should not be tryed in any Actions Criminal without the Licence of the Prince first obtained as is now done in England by the Kings especial Commission granted to a Lord or one of the Nobility to be as a Lord High-steward for such a Tryal or Purpose And a Servant to another once entertained in the Emperours Service being otherwise restrained became instantly a Freeman and might make his last Will and Testament and the reason given quod hoc privilegium videatur principale esse proprium Majestatis ut non Famulorum sicut privatae Conditionis homines sed liberorum honestis utatur obsequiis periniquum est eos duntaxat pati fortunae deterioris incommoda that it was a Principle or Property of Majesty that the Emperours Servants should be in a better Condition then the Servants of Private-men and it would be unjust that his Servants should be in as bad a Condition as those of the Common-people The Servants of the Emperours house did enjoy a Priviledge ut à solo principe vel ab eo cui is per sacros Apices injunxisset judicabantur that they should be Judged by the Prince himself or one Authorized by His Commission By a Law or Rescript of the aforesaid Emperour Zeno it was Ordained that nè ad diversa tracti viri devoti silentiarii judicia sacris abstrahi videantur obsequiis eos qui quemlibet devotissimorum silentiariorum Scholae Company or Regiment Civilitèr vel etiam Criminalitèr pulsare maluerint minimè eum ex cujuslibet alterius judicio nisi ex judicio tantummodo viri Excellentissimi Magistri Officiorum conveniri to the end none of the Emperours guards in the Palace and at the Court Gates then called Silentiarii probably from their care and watchfulness should be drawn or hindred from their Duty and Services that those which had any Action or Cause of Complaint against them either Civilly or Criminally should not compel them to come before any Judge whatsoever but the Lord Steward or Chamberlain of the Emperor's Houshold By the Salicque Laws or of the Francks the Ancestors of our Neighbors the French who then though now they find it not to be so thought themselves to be as free as their name signified made by Pharamond their first King toto caetu populi by the good liking of all that people assembled at Saltzburgh in Franconia in Germany in the year of our Redeemer 424. Qui in Jussione Regis fuerit occupatus he which was in the Kings Service by his Command and so are all the Kings Servants rationally intended to be manniri non potest was not to be cited or summoned to appear in any Court of Justice which other men were not to disobey under very great pecuniary Mulcts and was a Constitution so acceptable to the people as Charlemain long after in his Confirmation of that and the Laws of the Ribuarians and some other Nations declares them to be non ex sua adinventione sed Communi Consilio et prout cunctis placuit prudentioribus Regni not of his own Invention or framing but by Common assent or good liking of the most prudent and wise men of his Kingdome By the Laws of the Wisigoths from whence the Spaniards do so boast to have been descended as when they would signifie one most nobly descended they do usually say he is Ne de los Godos he is the Son of a Goth where it was
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
Servants and Followers so much follow the King and his Court and were kept in the Kings House or palace as in old time King Solomon in his Stately Porch of Judgment built in his House did judge and hear Causes and as the Kings of France did long ago in their Palaces and as long before the Romans had their Senate or Parliament House their Forum or place for their Courts of Justice near adjoyning to their Kings Palaces As our Bracton in the latter end of the Raign of King Henry the third called the Court of King's Bench as Sir Edward Coke saith Aulam Regiam the Kings Hall because the Judges of that Court did sit in the Kings Hall and the Placita Aulae Actions or Pleas of the Kings House or Hall were determined before the Steward of the Kings House And that King who began his Raign in the year 1216 labouring under great difficulties the power of many of his unruly Barons and very great necessities as well of mony as friends had notwithstanding the many Diminutions endeavoured of his Prerogative and regality no assault or incursions upon the Rights and Legal Priviledges of his Domestiques or House-hold Servants but had allowed him that Reverence and respect which by the Civil Law that universal Guide or Director of Reason and Justice and next to the Laws Eternal and its Deputy or Law of nature written in the heart of Mankind the Mother Nurse or Parent of a great part of that which is called our Common Law is and ought to be due and payable to the persons and Courts of Princes but enjoyed so much of it as Bracton who was a Learned Lawyer and afterwards a Judge and as some have believed a Chief Justice in the latter end of that Kings Raign or the beginning of the Raign of King Edward the first his Son in his Book De legibus et Consuetudinibus Angliae of the Laws and Customs of England whilst he disputes where a Defendant excuseth his not appearing to an Action when he is in Servitio Regis in the Kings Service and whether being summoned before he was in the Kings Service and might send or make his Attorney should be excused is willing to conclude in the negative yet forbeares to do it with a sed ita esset but so it would be si quis posset factum Domini Regis Judicare et in omnibus istis casibus magis erit spectanda voluntas Domini Regis quam jus strictum cum servitium Domini Regis nulli debeat esse damnosum et sicut non debet esse tenenti when it seems the Action spoken of concerned plea of Land Damnosum ita non debet esse Petenti injuriosum if any were to be Judg of the Kings Actions and that in all those Cases the will of the King was more to be regarded than the strictness of the Law when as the service of the King ought not to be grievous unto any And as it ought not to be a grievance unto the Tenant so ought not the Plaintiffe to take it to be a wrong done unto him And was of opinion that the solemnity and course of process may be sometimes shortned propter reverentiam personae vel privilegium contra quem illata fuit injuria vel contra nobiles personas ut si Injuriatum sit Domino regi vel reginae vel eorum liberis fratribus sororibus c. For reverence or respect to the person or in regard of the priviledge due unto him unto whom the wrong is done as if it were done to noble Persons or some wrong done unto the King the Queen or their Children Brothers Sisters c. And when he would not allow the priviledge or Essoine of being in the Kings Service unto a Sheriffe or Constable who were the Kings Officers during the time of their imployments was content to do it ubi aligua causa emergat necessaria ex inopinato ubi praesentia talis debet esse necessaria sicut iter Justitiariorum vel incursus hostium vel hujusmodi quae guidem Causae sufficientes sunt ad excusationem de servitio domini regis where there was any emergent and expected Cause where their presence was necessary as to attend in the Iter or Circuit of the Judges or upon an Invasion of Enemies or the like which were causes sufficient of excuse by reason of the Kings Service dum tamen ad quemlibet diem datum per Essoniatorem de servitio Domini regis habeat Essoniatus warrantum suum per breve Domini Regis so as at the day of Essoin that he or they were in the Kings Service the Kings writ or protection be produced to prove it Item excusatur quis si implacitatus fuerit in Curia Domini Regis vel vocatus ad Curiam Regis ob aliquam Causam in aliquibus Curiis inferioribus likewise any one impleaded in the Kings Court or called or summoned to the Kings Court upon any Cause or occasion shall be excused in inferior Courts Sed quid but what saith that Learned Judge dicendum erit de Curia Christianitatis cum magis obediendum sit Deo quam hominibus Hoc dico quod ad hunc differendum erit et quod dominus Rex warrantizare poterit ob reverentiam quae principi debetur shall be said if the Cause be depending in the Court Christian when God is more to be obeyed than men I say that in such a Case it is to be left unto God and the King may warrant his so doing in respect of the Reverence which is due to the Prince Being not much different from the Cares which some Forraign Princes did about that time hold fit to be taken of their Domestique Honors and Servants For by the Laws of the Sicilians and Neapolitans made or confirmed by Frederick the Emperor about the year 1221 the Magister Justiciarius magnae Curiae Chief Justice of the King's House or Court had the Cognizance or hearing of Causes de questionibus nostrorum Curialium qui immediatè nobis assistunt de speciali conscientia nostra in curia commorantium qui de Curia nostra sine speciali mandato nostro non possunt recedere or questions concerning any of the Kings Courts who do immediately attend us and by our privity are residing in Court and cannot depart without our special Licence Et observent diligentissime Judices ut in occasione injuriarum Curialium personarum dignitatem considerent et juxta personarum qualitatem eorum quibus fuerit facta injuria ipsis autem facta injuria non ipsis duntaxat sed etiam ad Regiae dignitatis spectat offensam The Judges are to take an especial care that in all accusations concerning any of the Kings Servants or Courtiers they take into consideration their worth dignity and quality seeing that a wrong done unto them is an injury or wrong done unto the Dignity of the Prince And when our
Bracton will not allow the priviledge where it is ex voluntaria causa when the party that would excuse his absence was voluntarily absent and not in the Kings service or will of his own accord without the Kings command go along with his Army yet he cannot but say that talibus non subvenit dominus nisi de gratia unto such the King would not be aiding unless he should be otherwise gratiously pleased to do it By an Act of Parliament made in the 52 year of the Raign of our King Henry the third all Archbishops Bishops Abbots Priors Earls Barons and religious men and women except that their appearance be specially required for some other Causes are excused from appearing at the Sheriffs Turn Sir Edward Cook extending it to the Courts Leete and view of Franck-pledge which with the Sheriffs Turns were instituted for the Conservation of the Kings peace punishment of Nusances and where all men within the Jurisdiction of it might be summoned to take the Oath of Allegiance By an Act of Parliament made in the third year of the Raign of King Edward the first providing a remedy where an Officer of the Kings which by common intendment were then understood to be the Sheriffs Escheators or Bayliffs of the King not his menial Servants doth disseise any It is in that only case left to the Election of the Disseisee or party disseised whether that the King by office shall cause it to be amended which the parties grieved were more likely to choose when besides their just satisfaction they might be a means to punish or affright the Kings Officers so offending with the losse of their gainful as well as not smally reputed Offices or places at his complaint or that he will sue at the Common Law by writ of novel disseisin And by another act of parliament made in the same year enjoyning severe penalties against the Kings Purveyors not paying for what they take and of such as take part of the Kings debts or other rewards of the Kings Creditors to make payment of the same debts and of such as take Horses and Carts more than need a trick wherein Tacitus saith the Roman Cart-takers whilst the Romans governed here were wont to abuse the old Britains and take rewards to dismisse them it was provided that if any of Court so do he shall be grievously punished by the Marshalls and if it be done out of the Court or by one that is not of the Court and be thereof attainted he shall pay treble damages and shall remain in the Kings prison forty dayes by which it is evident that the intention of that Act of Parliament was not to deliver any of the Purveyors the Kings Servants in ordinary to any other Tribunals than that of the Marshals or other the Officers of his Houshold Britton who like the Emperor Justinians Tribonianus in compiling or putting together the pieces of the Civil Laws did by Command of that wise and Valiant Prince King Edward the first in the fifth year of his Raign write his book in the name of that King concerning divers Pleas Process and proceedings in the Kings Courts saith in the Person of that King and French of those times Countes et Barons Dedans nostre verge the Kings Palace or 12 miles round about trovesnequedent estre destreint that Earls Barons found within the virge should not be attached or distrained as ordinary men which were Debtors Et nos Serjeans or Servants de nostre hostel soient avant summons pour dette que destreyntz et attaches par leur cors les uns pour reverence de lour persones et les Autres pour reverence de nostre service of our House shall be summoned for debt before they be destreyned or Attached by their bodies the one in reverence and respect to their persons and the other in reverence to our Service By an Act of Parliament made by that prudent Prince about that time entituled Prohibitio formata de Statuto Articuli Cleri where a prohibition was framed against certain matters which concerned the Clergy and the limitting of their Jurisdiction It was declared thaâ— Proceres et magnates et alii de eodem regno temporibus Regis predecessorâ—m Regum Angliae seu Regis Authoritate alicujus non consueuerunt contra consuetudinem illam super hujusmodi rebus i. e. matters Civil or Temporal except matters of Testaments or Matrimony in causa trahi vel compelli ad comparendum coram quocunquè Judice Ecclesiastico the Noble men and others of the Kingdome in the times of the Kings Predecessors or by Authority of any of the Kings did not use contrary to the said custome in such cases to be compelled to appear before any Ecclesiastical Judg whatsoever In the 18th year of his Raign in an Action brought at the Kings Suit in Banco Regis in the Kings Bench against Robert the Son of William de Glanville and Reginald the Clark of the said William de Glanville for delivering at Norwich a panel and certain of the Kings Writs which the Kings Coroner ought to have Brought the said Reginald demurring for that Dominus Rex motu proprio de hujusmodi Imiuriis privatis personis illatis sectam habere non debet ex quo aliena actio sibi competere non potest unde petit Judicium et si hoc non sufficiat dicet aliud et si actio in hujusmodi caesu Domino Regi posset competere dicit quod hoc deberet esse per breve originale et non de judicio unde petit Judicium the King was not to bring an Action for injuries done to private persons and is not concerned in another mans suit and demanded the judgment of the Court. And if that Plea will not be sufficient will plead somewhat else And if such an Action did belong to the King it ought to have been by Writ Original and not by a Writ Judicial whereof he pray'd the Judgment of the Court but Johannes de Bosco who followed for the King dicit quod quelibet injuria ministris Regiis licet minimis illata vertitur in dedecus ipsius Regis Et licèt hujusmodi minister Justitiam assequi de injur sibi illat contempsit tamen cum hujusmodi Injuria ministris Regis illata ipsi Regi fuit ostensa competit sibi actio ad amend consequend de contemptu pleaded that every wrong or injury done to the Kings Servants though it be unto the least is a disparagement to the King And if such a Servant will not take care to prosecute such an injury yet when the King shall be informed thereof he is concerned to punish the Contempt and vouched a late President for it in a Case betwixt Robert of Benhale and Robert Baygnar and others in a Writ of wast and prayed Judgment for the King In the same year John de Waleis complaining against Bogo de Clare for that some of
his Servants when he came to the House of the said Bogo in London and serued him with a Citation in the name of the Archbishop of Canterbury enforced him to eat the Seal and Citation and the said Bogo de Clare pleading that he ought not to answer because it was not alledged that he was the doer thereof nor that his Servants did it by his Command nor were they named it was in that Record and pleading adjudged that although the Fact was committed by the Servants of the said Bogo yet quia Dominus Rex pred Transgressionem sic enormiter factam ut dicitur tum propter contemptum Sanctae ecclesie tum propter contemptum ipsi domino Regi in presentia sua videlicet infra virgam et in Parliamento suo factum propter malum exemplum temporibus futuris tum propter audaciam delinquendi sic de cetero aliis reprimendam permittere non vult impunitam in regard that the King would not suffer so foul an offence not only in contempt of the Church and of the King in his presence that is to say within the virge and in time of Parliament but for the boldness of the offence and the evil example in time to come to pass unpunished the said Bogo de Clare should answer the Fact at the Kings suit for that the offence was committed infra portam suam et per manupastos et familiares suos within the house of the said Bogo and by his Houshold Servants some of whom being named the said Bogo was commanded to bring them before the King and his Councel to abide by what should be ordered and decreed against them By the Statute or Act of Parlimaent made in the 28th year of that Kings Raign the King and Parliament may be understood not to intend that the Kings Purveyors or Servants of that nature should be tryed or punished for divers offences therein mentioned before other Tribunals than that of the great Officers of his Houshold and therefore ordained that for those Offences they should only be tryed and punished by the Steward and Treasurer of the Kings Houshold nor when by an Act of Parliament made in the same year and Parliament of what matters the Steward and Marshall of the Kings Houshold should hold Plea their Jurisdictions were confined to Trespasses only done within the Kings House and of other Trespasses done within the Virge and of Contracts and Covenants made by one of the House with another of the same House and in the same House and none other where And whereas before that time the Coroners of the Counties were not authorized to inquire of Felonies done within the Virge but the Coroners of the Kings House which never continueth in one place whereby the Felonies could not be put in exigent nor Tryal had in due manner It was ordained that in case of the death of men it should be commanded to the Coroner of the County that he with the Coroners of the Kings House should do as belongeth to his Office and enroll it and that the things which cannot be determined before the Steward of the Kings House where the Felons cannot be Attached or for other like cause should be remitted to the Common Law the King and Parliament can be rightly supposed thereby to intend that the Kings Domestiques or Houshold Servants should for Controversies amongst themselves of the nature before recited be compelled to attend or be subject to any other Jurisdiction when a Coroner of the Kings House was long before appointed to prevent it and it appeareth by that Act of Parliament it self that the matters therein mentioned were not to be remitted to the Common Law but where they could not be determined before the Steward of the Kings House The care and provision of which Act of Parliament to keep the cognisance of the Causes and Actions therein mentioned within the Jurisdiction of the Steward and Treasurer of the Kings House did neither abrogate any of the former Rights and Liberties of the King or his Servants nor by any reasonable construction or interpretation can be understood either to abolish and take them away or to intend to give a liberty to Arrest without licence any of the Kiags Servants in ordinary And an Act of Parliament being made in the same year that Common Pleas or Actions should not be holden in the Exchequer which was then kept in his Palace did by a Writ under the great seal of England directed unto the Treasurer and Barons of the Exchequer reciting that secundùm legem et consuetudines Regni according to the Law and customes of the Kingdom Common Pleas ought not there to be pleaded doth specially except nisi placita illa nos vel aliquem ministrorum nostrorum scaccarii specialiter tangant such Actions as did not especially concern him or any of his Ministers or Servants belonging unto his Exchequer and commanded an Action of debt for five pounds brought against one of thc Exchequer to be superseded and no further prosecuted and that the said Treasurer and Barons should on the Kings behalf declare to the Plaintiffe quod breve nostrum de debito sibi impetret si sibi viderit expedire that he should if he thought it expedient sue forth the Kings writ for the debt aforesaid which can import no less then a license preceding the obtaining of it and untill such Actions were to the large and very great benefit of the Subjects in a cheap and ordinary course to be obtained which in the morning and infancy of our common and municipal Laws were wont to be petitioned for and be not a little costly dilatory and troublesome as they which have made use of a friend to the King or a Master of Requests or Secretary of State may easily be perswaded to believe amounted to a greater trouble delay and expense of the Plaintiffs than now they are put unto to get leave of the Lord Chamberlain of the Kings House to Arrest any of the Kings Servants and that prudent Prince did certainly by that Act of Parliament touching the Exchequer not holding Common Pleas as little intend as did his Father King Henry the third by that Act that Common Pleas should not follow his Court that his Servants in ordinary should without leave or licence first obteyned be constreyned to neglect their Service and attendance and appear before other Tribunals For there is an antient Writ saith Sir Edward Coke to be found in the Register of Writs called de non residentia Clerici Regis of the non-residence of the Kings Clerk or Chaplain or attending in some Office in the Chancery directed to the Bishop of the Diocess in these words Cum Clerici nostri ad faciend in beneficiis suis residentiam personalem which was for the cure of Souls being the highest concernment and greater then that of appearing to an Action of debt or other Action dum in nostris immorantur obsequii◠compelli aut alià s
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
contrary to the Common Law of the Land and in despite of the King refused to obey it The Parliament acknowledging the aforesaid Rights and Customs of the said Clerks of the Chancery and the contempt of the King did ordain Que breif soit mandez a Maior de Londres de attacher les divz Viscontes autres quont este parties maintenours de la guerele dont ceste bille fait mention per le Corps destre devant le Roy en sa dite Chancellerie a certein jour a respondre aussibien du contempt fait a nostre Seigneur le Roy ses mandements prejudice de son Chanceller come al dit Clerk des damages trespas faites a lui That a Writ should be awarded and directed to the Mayor of London to arrest by their Bodies the said Sheriffs of London and others which were parties and maintainers of the said evil action to answer before the King in his Chancery at a certain day as well for the contempt done to the King and his Commands and prejudice of his Chancellor as also to the said Clerk for his damages and wrong sustained And that King by a Statute made in the 36 year of his Reign forbidding under severe penalties any Pourveyance to be made but for the King and Queen and their Houses and to take any such Pourveyance without ready Money there is a pain or penalty to be imposed as Sir Edward Coke upon view of the Record thereof hath observed upon the Steward Treasurer and Controller and other Officers of the Kings Houshold for not executing that Statute which need not to have been if the cognisance of the Offences therein mentioned had not by that Act been thought fit to have been left unto them And was so far from being perswaded to release the constant Attendance of the Justices of the Kings Bench as when the Commons in Parliament in the 38th year of his Reign Petitioned him That the Kings Bench might remain in some certain Place and not be removed he answered in the negative That he would not do so And where the Court Marshal was so anciently constituted for the Placita Aulae sive Regis Palatii for Pleas Actions and Controversies concerning the Servants of the Royal Family when any should happen to arise amongst them and retained in the Kings House and Attendance and the Court of Common Pleas was designed and delegated to do Justice unto all the Common People in Real and Civil Actions in certo loco a certain place assigned in the Kings House or Palace for then and long after until our Kings of England made Whitehall their Palace or Residence it is probable that the Bars Benches and Tribunals of the Courts of Chancery Kings Bench Common Pleas Exchequer and other Courts since inhabiting that great and magnificent Hall of Westminster were movable and not so fixt as they now are and allowed not to travel with the King and his Court or to follow it and the Court of Exchequer to take care of the Royal Revenue in its Income Receipts and Disbursments It cannot without some affront or violence done to Reason be imagined that our Kings who would have that Court of the Marshal to be neerer their Persons than any other of their Courts of Justice always attending and resident for the concernment properly of their Houshold and Servants and because they should not be inforced from their daily Service to pursue their Rights or seek for Justice before other Tribunals should ever intend or be willing that their Servants and necessary Attendants should as Defendants and at the suit of Strangers and such as are not the Kings Servants be haled to Prison diverted from their Service or obstructed in it when as Justice in the old more dutiful and respectful way might as cheap and with lesser trouble be had against them at the Fountain or Spring of Justice by the King himself the Alpha or beginning of it and Omega the Dernier Resort or last Appeal where his ordinary Courts of Justice fail and cannot do ir And where some of our late Kings and Queens of England not to be wanting unto the Cries and Complaints of their People for want of Justice did afterwards appoint and allow another Court in the Reigns of King Henry the seventh Henry the eighth Edward the sixth Queen Mary Queen Elizabeth called and known by the name of Curia Supplicatioâ—um Libellorum the Court of Petitions and Requests where those that were honoured with the Title and Offices of Judges and as Commissioners and Masters of Requests for those particular Causes and Cases were Bishops or Barons Lords Stewards of his Houshold and other Great Officers thereof Deans of the Chappel and Doctors of Law and Divinity were stiled or called Concilium Regis that Stile or Title and Masters of Requests as Synonyma's then signifying one and the same thing And a Mastership of Requests was so highly esteemed in the seventh year of the Reign of Q. Elizabeth as there was besides Walter Haddon Doctor of the Laws and Thomas Seckford Esq a Common Lawyer the Bishop of Rochester a Master of Requests and in the 22. year of her Reign Sir William Gerrard Knight Lord Chancellor of Ireland was during the time of his being in England made a Master of Requests Extra-ordinary and by the Queens Letter of Recommendation to the other Masters of Requests ordeined to sit amongst them and their Decrees were sometimes signed by the King himself with his Sign Manual and in the tenth year of King Henry the eighth divers Bills were exhibited unto Thomas Wolsey Archbishop of York Chancellor of England and Cardinal and Legate a Latere to granr Process for the Defendents appearance to answer before his Grace and others of the Kings most Honourable Council in Whitehall but at other times before and since were constrained to appear before that Council by Writ or Process of Privy Seal or a Messenger of the Kings that Court as it may be observed by the Registers and Records thereof coming to be called the Court of Requests only about the beginning of the Reign of King Edward the sixth And such care was taken by King Henry the seventh to hear and redress the Grievances and Laments of his People as in the ninth year of his Reign he assigned and enjoyned them certain months and times diligently to attend unto that business the greatest Earls and Barons having in those times been made Defendants to several Bills and Petitions many of the Learned Serjeants of the Law there pleading for their Clients and Sir Humphrey Brown Kt. one of the Justices of the Court of Common Pleas in the sixth year of the Reign of King Edward the sixth being made a Defendant in this Court where the Plaintiff after 12 years delays in Chancery and an Appeal from that Court unto this obtained a Decree against him and yet no Pleas and Demurrers are found to be put in
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
cause in the same year Richard Horne of Watton in the County of Oxford to be arrested and taken into custody upon the complaint of Mr. Hiorne Deputy Steward of VVoodstock for not only refusing to furnish horses to carry the Kings Venison to Court he being Constable and required and of duty ought to do it but for reproachful and ill language or as was done not long before or after in his Reign by a Warrant under the hand of the L. Chamberlain for the apprehension of one that had spoiled or killed a Mastiff of the Kings when as our Laws have not yet had any prescript form or writs remedial for any of those or the like accidents at the Kings suit only for it would be no small disparagement to the Majesty of a King and supreme of such an antient Empire not to have power enough to redress complaints of that nature or to be enforced to put Embassadors to be Petitioners to his inferiour and delegated Courts of Justice which no Monarchy Kingdom or Republique in Christendom was ever observed to suffer to be done for that which their Superiors according to the Law of Nations ever had and should have power to grant without them for when our Laws which do not permit the King as a Defendant to be commanded in his own name under his own Seal and by his own writs or as a Plaintiff to supplicate those whom he commissionated to do Justice in his name and by his authority to all the meanest of his Subjects to do a parcel of Justice to himself when he wanted no remedies by his own Messengers or Servants to imprison any that should offend against his dignity and authority and in matters of his Revenue or for contempt of his Royal authority can by seisures or distress office or inquisitions process of his Courts of Exchequer Chancery Kings Bench Common-Pleas and Dutchy of Lancaster c. give himself a remedy is not to prosecute in any Actions at Law as common persons are enforced to do for our Kings should not certainly be denied their so just and legal rights when by their Office and dignity Royal they are the principal Conservators of the Peace within their own Dominions and by their Subordinate authority the Judges of their Courts of Record at Westminster and the Justices of Assize can and do legally punish and command men by word of mouth to be Imprisoned or taken into Custody by their Tipstaves Virgers Marshals or by the Warden of the Fleet or his men attending them when the Lord Steward of the Kings Houshold Earl Marshal and Constables of England are by their Offices Conservators and Justices of the Peace in all places of the Realm and the Steward of the Marshalsea within the virge by that derived authority can do the like and all the Justices of Peace in England were and are authorised by him who hath or should have certainly a greater power than any Justice of Peace who may by Law award a man to prison w ch breaketh the peace in his presence or appoint his servant to serve or execute his Warrant or cause by word of mouth to be arrested or imprisoned the person offending for contempts or an offender being in his presence to find security for the Peace and by the Common Law cause Offenders against the Peace to be punished by corporal punishments not capital as whipping c. when a Sheriff of a County and the Majors and head Officers of Cities and Towns Corporate do the like under and by the power given them by grants of the King and his Progenitors when the Steward of the Sheriffs Turn or a Leet or of a Court of Piepowder may commit any to ward which shall make any affray in the presence of any of them when the Lord Mayor of London whose Chamberlain of that City hath a power appropriate to his Office of Chamberlain to send or commit any Apprentices of London upon complaint of their Masters or otherwise to the Prison of the Compters or to punish and reform such disobedient Servants though the younger Sons of Baronets Knights Esquires of Gentlemen and sometimes the elder Sons of decayed or impoverished Esquires or Gentlemen who should have a greater respect given unto them then those of Trades men Yeomandry or lower Extractions by cutting and clipping their hair if too long and proudly worn or cause them to be put into a place well known in Guildhall London Called Little Ease where to a great Torment of their bodies they cannot with any ease sit lie or stand or by sometimes committing them to Bridewell or some other place there to be scourged and whipt by a Bedel or some persons disguised for no man can tell where to find or discern any reason that the King should not upon extraordinary occasions have so much power and coertion in his high and weighty affairs of government protection of his people and procuring and conserving their peace welfare and happiness as a Stâ—ward of a Court Leet or the Lord thereof in their far less affairs of Jurisdictions by punishing of Bakers and Brewers by that very ignominioâ—s and now much wanted use of the Pillâ—ry and Tumbrel in the later whereof the Offender was to be put in a Cathedra or ducking stool placed over some stinking and muddy pool or pond and several times immerged in it or that by any law or reasonable custom our Kings of England are to have a more limited power in matters of punishment government or a less power than the Masters Wardens of that petty and lower most the late erected Company or Corporation of the Midlers only excepted Company or Corporatioâ— of the Watermen who acting under the Kings authority can fine the Master Watermen for offences committed against by-laws of their own making and imprison them without Bail or Mainprize for not paying of it and cause their Servants for offences against their Masters to be whipt and punished at their Hall by some vizarded and invisible Tormentors or less than the power and authority of a Parish and most commonly illiterate and little to be trusted Constable who may upon any affray or breach of the Peace in his presence or but threatning to break the peace put the party offending in the stocks or keep him at his own house until he find sureties of the peace or less than those necessary military powers and authorities exercised in Armies Garrisons or Guards by inflicting upon offenders that deserve it the punishment of running the Gantlet riding the wooden horse c. or in maritime affairs by beating with a Ropes end ducking under the main yard c. when as the Powers given by God Almighty to his Vicegerent the King and Supreme Magistrate and the subordinate and derivative power concredited by him to his delegated and commissionated inferiour Magistrates are not debarred that universal and well-grounded maxim of Law and Right Reason Quando Lex aliquid
Utlawed person could not be restored till he had been by the Court committed to the Prison of the Fleet for his contempts purchased and pleaded his Charter of Pardon from the King under the Great Seal of England and appeared to the Action when the King and his service and attendance was the only cause that he did not or could not attend or appear thereunto or put in Bayl to answer it when there was no danger of his absence or flying away from the Kings Service which is or ought to be not a little advantageous or beneficial unto him And when the Plaintiff at whose instance such a prosecution was made might with as much ease and as little charge and a far less expence of time have petitioned the Lord Chamberlain of the Kings Houshold and obtained a license to have taken his course at Law against him And if the Lord Chamberlain had given the Defendant a reasonable time or prefixion for the Plaintiffs satisfaction as his Lordship usually doth it would probably not have exceeded the time of six months which is by our Laws the shortest time wherein a Defendant can be Utlawed which as Bracton saith ought not to be suddenly done but to have five months warning or time given in regard of the severity thereof when a man is Utlawed and is thereby to forfeit bona catalla patriam amicos his Goods Chattels Countrey and profits of his Lands to be as an exile or banish'd man was not to be received or entertained by his Friends could not bring an Action for any thing due unto him untill the Utlary be reversed but was as antient as the Saxon times accounted to be a Friendless and Lawless man And it would be a great piece of incivility to prosecute such a Servant of the Kings in ordinary so busied and imployed about his person and not first of all to Petition for his license when in an ordinary way and with no great charge and a great deal sooner than the Defendants appearance to his Action can be enforced by an Utlary it might have been so easily procured and possibly the Kings great occasions and expence of money for the Publick and their defence and protection wherein the good and safety of that Plaintiff was amongst the rest included might be the cause that he could not pay such Servant in ordinary his wages and that such Servant could not so soon as he otherwise would have satisfied the party prosecuting there being no reason to be assigned by any whose exuberant phancies have not altogether divorced them from it that one that is but imployed upon a seldom and temporary imployment of the Kings and is not his Servant in ordinary nor the business he is imployed in so continually near and relating to his person should during that his temporary imployment and of a far less concernment as to go on a Message for him or in company of some Ambassador be priviledged during his absence in his Person Goods and Estate and a Servant in ordinary continually attending his Sacred Person should be only protected in his Person but not in his Estate or that the priviledges and immunities so antiently due and appropriate to his Servants in ordinary and near his person should be curtailed and have less allowed them than Strangers and such as are only imployed for some small time or occasion Or that the Utlawing of any of his Servants in ordinary should forfeit their so just Rights and Priviledges when as by the Law and reasonable Customs of the Kingdom they are not to be Utlawed or put in Process of Utlary without license or leave first asked and no man should be Utlawed or punished for a default of not appearing or have any Process of arrest or contempt awarded against him where he had a reasonable excuse or impediment or cause of Essoyne as by Inundation of Waters being sick or in the parts beyond the Seas or so great a one as the Service of the King for if Utlaries in such a case unduly obtained should cause a forfeiture of just and legal Customs and Priviledges any that had a mind to do a mischief to a supposed adversary might as well contrary to the Priviledges of Parliament in the time of Parliament find or make a pretence to Utlaw any of the Members of either of the Houses of Parliament and make that to be as it were a forfeiture of their Priviledges and a justification which they can never make out of the infringing of them and the Parliament-men of the House of Commons might be Utlawed persons which the Law forbids and by tacite and many times undiscerned Utlaries might lose and be deprived of their Priviledges And the parties offending or endeavouring such breaches of Priviledge should not take advantage de son tort of their own wrongs or tortious doings which our Common Law maxime doth abhorr and the Civil Law doth as little like or allow when its Rule is that Nemo commodum consequi debet ex suo delicto no man is to take profit by his offence against the Law For in vain should the Kings Servants be by the Constitution of Clarendon in the Reign of King Henry the second freed from Excommunications or the Ministers or Priests be by the Act of Parliament in the 50th year of the Reign of King Edward the third and the first year of the Reign of King Richard the second exempted from being arrested in the Church or Church-yard if an Utlary which being very antiently used in Criminal matters but not in Civil in Bractons time in the Reign of King Henry the 3d. taught the way and manner of it in Civil should be able to forfeit it or take them away for in and before that Kings Reign Bracton saith Videtur nulla esse Vtlagaria si factum pro quo quis Interrogatus est Civile sit non Criminale pro quo quis vitam amittere non deberet vel membra it seemeth there ought to be no Utlary where the Defendant or party is prosecuted for any Civil matter not Criminal wherein he was not to lose either life or members And very unbecoming the Majesty and Honour of a King it would needs be to have any of his Servants Utlawed and pursued with Process of Utlary whilst they are attending upon him and made to be as the out-cast and reproach of the people and not be able to protect them in their just Rights and Liberties or that any of our Kings Servants should Lupina capita gerere be as men wearing Wolves heads which was the antient mark or note of infamy of such as were Utlawed in Criminal matters instead of honourable Liveries or marks of the Kings Servants in ordinary When in the 6th year of the Reign of King Henry the 4th Roger Oliver the Son of John Oliver being in obsequio Regis in Comitiva Johannis Lardner Capitanei Castri de Oye in partibus Piccardiae pro munitione
himself might commit or command the party offending to prison which may surely upon some emergent or particular occasions admit him to a just intermedling therein for it cannot be denied but King Henry the 3 d. hath sometimes sate amongst his Judges or Barons in the Court of Exchequer and we may believe those dictates of reason which are to be found in the Civil Law when it saith that Jus superioritatis jurisdictionis Regis non potest ab inferioribus dominis jurisdictionem habentes contra Principem praescribi quia quae sunt in subjectionis data impraescriptibilia The right of Superiority of Jurisdiction cannot by any inferior Jurisdictions be prescribed against the Prince for that those things which were granted or given in signe of subjection are impraescriptible Posset enim si hoc fieret paulatim collabi Imperium redderentur subditi Acephali for if that should be suffered the Dominion or Empire of Kings and Princes would by little and little so moulder and wast away as the Subjects would be more then Subjects and as men without a head Et cum omnes jurisdictiones habeant vim a Regia permissione tanquam radij a Sole fieri non potest ut remanente jurisdictione non agnoscatur Sol unde dependet And when all Jurisdictions doe receive their force and vigour from the Kings permission as the Beams or Rayes doe their Lustre from the Sun it cannot be but that as long as the Jurisdiction remaineth the Sun on which it dependeth should be acknowledged Quomodo etiam poterit quis dicere praevalere jurisdicttiones concessas a principe contra anthoritatem principis cum haec potestas annexa Regio diademati est innata ei videtur For how can a-any one affirme that any Jurisdiction granted by the Prince can be used or prevaile against his authority when he may at his pleasure for just and legall Causes alter diminish or revoke them it being a power innate and annexed to his Royal Diademe Saith that Civilis prudentia those excellent rules of government which are ro be found in the Cesarean or Civill Law And there can be no power saith a late learned Author where there is not a power to exercise it for in France saith the learned Charles Loyseau le dernier ressort de Justice est tellement un droict de Soverainete que mesme en Commun language est appelle Soverainete the last resort or appeal for Justice is so much esteemed to be a right of Soveraignty as in common or vulgar speech it is called Soveraignty And where the King is by our Lawes not denied to be the Lex viva Lex loquens the living and speaking Law the Civill Law saith Rex solus judicat de causa a jure non diffinita the King is the only Judge in such Causes where the Law hath not already defined or determined them And Bracton hath these words in dubiis obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda Interpretatio voluntas cum eius sit Interpretare cujus est condere in matters doubtfull and obscure or if any word shall contein or seem to beare a double signification the Kings will and Interpretation is to be attended when as he that makes a Law is and ought to be the fittest Interpreter and Britton saith that the Kings Jurisdiction is superior to all the Jurisdictions of the Realm and according to Bracton is Autor juris unde jura nascuntur the Author of the Law and from him all Laws are derived Omnes sub eo ipse sub nullo nisi tantum sub Deo parem autem non habet in Regno suo quia sic amitteret praeceptum all his people are subject unto him and he under none but God only hath none equall unto him in his Kingdom for if he had he would loose his power of Command or Authority and in another plaee of his book repeating that Opinion well founded Doctrine saith Parem autem habere non debet nec multo fortius superiorem maxime in justitia exhibenda that he ought not to have an equall nor which is more any superior especially in the Administration of Justice which made the Judges in the 13 th year of the Reign of King James rightly stile him the fountain of Justice And this dernier ressort or appeal hath been so necessary an Assistant to our Laws and Courts of Justices as the reverend Judges thereof have not seldome been constrained to pray in ayd of it and therefore a Marginall d Note in an old Stathanis Abridgment hath this remarque that in Hillary Term in the 13th yeer of King Henry the 7th Cheeseman being under Sheriff of Middlesex and having arrested un Cutpurse en le Sale de Westminister a Cutpurse in Westminister-Hall hastement veign un Fog fut Serjeant Porter le Roy A donques le Roy eant a Westminister prist le dit Cutpurse del vic en le Sale Sur que le vic lui complaint al Fineux Chief Justice mand un des Marschalls ovesque le mace pour le dit Porter qui don respons quil ne voil vener al request dast des Tipstaves Sur que le Chief Justice alast al Chanc monstra le matter le Chanc mand soon Serjeant d' Armes pour liu il respond a liu quil conust lui pour Sergeant nostre Seigneur le Roy quil voil aler ouesque lui donques il veign le Cheife Justice command le vic de liu arrest quant il vei issint il fit il a lui fit rescous surque le dit Justice alast al Roy monstre le matter le Roy command le dit Fog d' obier le Justice de vener a le Court de lui submitter a le ley issint il fit fut mis a son fine troue pleg de fine faciend whereupon one Fog Serjeant Porter of the King the King being then in his House or Pallace of Westminister came hastily and took away from the Sheriff being then in the Hall the said Cutpurse whereof the Sheriff complaining to Fineux Chief Justice of the Court of Kings-Bâ—nch he sent one of the Marshalls with his Tipstaffe for the said Porter who answered that he would not come at the request of any of the Tipstaves whereupon the Chief Justice went unto the Chancellor and shewed him the matter and the Chancellor sending his Serjeant at Armes for him he answered him that he knew him to be the Kings Serjeant at Armes and that he would goe with him and being come the Chief Justice commanded the Sheriff to arrest him when he saw him who did arrest him but he rescued himself and thereupon the Chief Justice went unto the King and shewed him the matter and the King commanded the said Fog to obey the said Justice and to go
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
Tradesmen or Servants extraordinary And therefore the King having fewer Servants or Officers in ordinary than the Kings of France his Neighbours used to have who besides their numerous Guard have four Kings at Armes eight Masters of Request deux Maistres d'Hostel two Masters of the Houshold thirteen Pages of Honour and two hundred Gentlemen Pensioners c. and a far lesser number than many of his Royal Progenitors should not now be thought to have too many because he hath some extraordinary And although it is not hard or difficult to believe but that heretofore the Common people of England were sometimes troubled at the unruliness and misdoings of the Purveyors which were afterwards well prevented in the Reign of Q. Elizabeth by a Composition made with the several Counties what proportions of Provisions the City of London and every County should by equal charge and collection pay and deliver towards the support and maintenance of the Provision for the Kings Houshold yet notwithstanding they did in their duty and reverence unto the King and respect unto his Servants not think it reasonable or comely to arrest or trouble his Purveyors or Servants by any Arrest or Actions without asking his leave or licence But where they had any grievance by his Officers and Servants and the Laws in force would have given them their Actions and remedies were so unwilling to make use of those ordinary helps which the Laws were at all times ready to afford them as they would rather trouble the Commons in Parliament to petition in their behalf for a redress therein who could not but understand that where an Act of Parliament gives remedies either against the Kings Servants Barons Bishops or others it is to be more aut cursu solito in such wayes and manner if no other in particular be prescribed as the Laws and reasonable Customs of England will allow and not otherwise A prospect whereof and of our Kings of Englands care to protect their Servants in their Liberties and Priviledges as well as to do Justice unto the rest of their Subjects complaining of them in Parliament needs not be far to seek to those that will but retrospect and enquire into the ages past CHAP. XII That the Subjects of England had heretofore such a regard of the King and his Servants as not to bring or commence their Actions where the Law allowed them against such of his Servants which had grieved or injured them without a remedy first petitioned for in Parliament WHen in the 13th year of the Reign of King Edward the third the Commons petitioning the King in Parliament which they needed not to have done when the Law would have given them remedy without the trouble of petitioning the King in Parliament and they might by the Statute made in the 28th year of King Edward the first have pursued them as Felons That all Purveyors as well with Commission as without might be arrested if they make not present pay All that was answered unto it as if there were altogether an unwillingness to expose them to Arrests and with which the Commons seemed to be satisfied was That the Commissioners of Sir William Healingford and all other Commissioners for Purveyance for the King be utterly void In the 20th year of that Kings Reign the Commons in Parliament petitioning That payment be made for the last taking of Victuals The Kings answer was That order should be taken therein In the same year the Commons in Parliament petitioning the King That Purveyors not taking the Constables with them according to the Statutes of Westminster might be taken as Thieves and that the Judges of Assise or Justices of the Peace might enquire of the same The King only answered That the Statutes made should be observed In the 21th year of the said Kings Reign the Commons in Parliament not thinking it fitting that the Purveyors who did them wrong should be instantly laid hold of or troubled with Suits or Actions or the King and Queens Horses impounded which would be a less affront to Majesty than the arresting of his Servants did only petition That whereas the King and Queens Horses being carried from place to place in some Counties had Purveyance of Hay and Oats c. made for them That the said Horses might abide in some certain place of the Country and provision made for them there in convenient times of the year by agreement with the Owners of those Goods and that inquiry might be made of the ill behaviour of those Takers before that time and that by Commissions the Plaintiff or party grieved in that kind as well of wrongs heretofore done or hereafter to be done might have redress therein To which the King answered That he was well pleased that the Ordinances already made should be kept and Purveyance made for his best profit and ease of his people And in the same year the Commons having complained That whereas the King and his Councell had assented that Men and Horses of the Kings Houshold should not be Harbinged but by Bill of the Marshal of the House delivered to the Constable who should cause them to have good sustenance for themselves and their Horses as should be meet and before their departures should pay the parties of whom the Victuals were taken and if they did not their Horses should be arrested and that contrary thereunto they departed without payment when it seems they used so much civility to the Horses as not to arrest them did only pray that in every Bill mention be made of the number of Horses that no more but one Garson be allowed and that payment according to the Statute might be made from day to day Whereunto the King answered That that Article should be kept in all points according to the form of the Statute In the 28th year of the Reign of that King by an Act of Parliament not printed when it was enacted That no Purveyor arrested for any misdemeanor should have any Privy Seal to cause such as arrested him to come before the Councell to answer to the King when it seems the King and his Councell were unwilling to put the Kings Servants under the command of every mans pretended Action but the party grieved might have his remedy by the Common Law the utmost extent of that Statute did not include any other of the Kings Servants then his Purveyors And did so little disrelish Protections and the just grounds and reason thereof as in the 45th year of the Reign of King Edward the third the Commons in Parliament petitioned the King That such as remained upon the Sea-Coasts by the Kings commandment might have protection with the Clausa volumus which the King supposing to be too general or at that time unnecessary answered That the same would be to the apparent loss of the Commons In the 46th year of the Reign of that King the Commons petitioning the King in Parliament That whereas it was
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
to accept of any priviledge whereby such a grievous sin might arise to delay or hinder any man voluntarily of his just Debt William of Mountacute Earl of Salisbury having a great Plea of Land long depending for the Honour and Castle of Denbigh in Wales against the Earl of March in Parliament upon a Writ of Error Sir John Bishopson Clerk and Servant to the said Earl of March in the absence of the said Earl then being in Wales preparing himself to go into Ireland where he was appointed to be the Kings Lieutenant shewed the Kings Protection made to the said Earl for one half year which being read was allowed In the 6th year of the said Kings Reign the Commons in Parliament not desirous as it may seem to take their course in Law which several Acts of Parliament had allowed them did pray That the Statutes of Purveyors be observed and that ready payment may be made To which the King answered That the Statutes therefore made should be observed In the 7th year of the Reign of the aforesaid King the Commons in Parliament petitioning the King That remedy might be had against Protections The King answered That the Chancellor upon cause should redress the same In the 8th year of that King the Commons in Parliament did pray the King That remedy might be had against the Clerks of the Exchequer whose business under the Treasurer being to collect and gather in the moneâ—s and profits of his Revenue might in some sort be taken to be a Latere and as his Servants who would not allow the pardons of King Edward the third without great charge to the parties Unto which the King answered That he who hath cause to complain may do so and be heard In the 9th year of his Reign the Citizens of London did in Parliament petition the King That the Patent lately made to the Constable of the Tower of London who by colour thereof took Custom of Wines Oysters and other Victuals coming by water to London wherein their Charter and the Common Law would have relieved them might be revoked which was granted In the 10th year of the said Kings Reign the Commons in Parliament petitioning the King That no Protection to delay any man be granted The King answered That who should especially complain may find remedy at the Chancellors hands And in the same year and Parliament praying That no Protection be granted from thenceforth in Assise or Novel Disseisin or other plea of Land The King answered If the same be demanded he will be advised before the grant And in those and other Parliaments where within the virge and compass of loyalty and modesty they were by the favour indulgence and allowance of our Kings permitted by their Petitions Procurators or Representatives to speak more plainly than at other times or in other places in the representing of any grievances did it with such an awful regard and tenderness As conceiving themselves to be grieved by a more than ordinary number of the Kings Serjeants at Arms bearing the Royal Masses or Maces they did in the aforesaid Parliament of the 10 th year of the Reign of the aforesaid King Richard the second Petition the King That there might be no more Serjeants at Arms than had been heretofore and that for doing otherwise than they should they might be expelled And were in the 20th year of his Reign so carefull of his Officers as they did in Parliament complain That they were excommunicated for making Arrests or Attachments in the Church-yards and prayed remedy To which the King answered Right shall be done to such as be especially grieved In the second year of the Reign of King Henry the 4th petitioning the King in Parliament That no Protection be granted to any person Religious The King answered That the Protections with the clause Volumus granted to them shall be revoked and they shall have such Protections granted unto them In the same Parliament the Commons did pray That no man be kept from Justice by any Writ or other means obtained from the King by sundry suggestions on pain of twenty pounds to the obtainer of the same whereunto the King answered The Statute there appointed shall be kept and who doth the contrary shall incurr the pain aforesaid In the fifth year of that Kings Reign they petitioned in Parliament That no Supersedeas which may be understood of Protections be granted to hinder any man of his Action whereunto the King answered The Statute therefore made shall be observed In the 7th and 8th year of his Reign the Commons in Parliament although there were then divers Laws and Statutes in force to quiet their sears or relieve their grievances did petition the King That none about his Person do pursue any suit or quarrel by any other means than by the order of the Common Law and that none of the Officers of the Marshalsea of the Kings house do hold Plea other than they did in the time of King Edward the first By an Act of Parliament made in the 7th year of the Reign of that King grounded upon some Petition to that purpose No Protection was to be allowed unto Gaolers of the Marshalsea Kings-Bench Fleet c. that do let Prisoners for debt go at large and afterward purchase Protections which admitteth such Prison-keepers capable of Protections where they were not guilty or to be sheltered from the punishment of such offences In the 7th and 8th year of the Reign of that King the Commons in Parliament although by an Act of Parliament made in the second year of the Reign of that King Every Purveyor that did not make ready payment for all that he took was to forfeit his Office and pay as much to the party grieved Petitioning the King That payment might be made for Victuals taken by the Kings Purveyors from the time of his Coronation The King answered He is willing to do the same and that all Statutes of Purveyors be observed And in the 11th year of his Reign petitihning him That payment might be made for Victuals taken by his Purveyors he promised convenient payment In the third year of the Reign of King Henry the fifth the Commons in Parliament although they had before sufficient remedies by Law did Petition the King That the Purveyors may take no provisions in the Market without the good will of the party and ready money To which the King answered That the Statute therefore should be observed In the Parliament holden in the 4th year of the Reign of King Henry the fifth the Commons did Petition the King That none of his Subjects be fore-barred of their due debts or suits for the same by colour of protections granted to any Prior Alien but during such time as they should serve the King beyond the Seas unto which he answered The Prerogative and Common Law shall be maintained In the 20th year of the Reign
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
are not to stand in the way or obstruct the Rights or those to whom they were indulged or granted CHAP. XIX That those many other Immunities and Priviledgeâ— have neither been abolished or so much as murmured at by those that have yielded an assent and obedience thereunto although they have at some times and upon some occasions received some loss damage or inconveniences thereby FOr the Law which hath allowed them to be good and warrantable could not but apprehend that a possibility of loss and prejudice would come to others by them and our Kings and Princes did by their Laws bear a greater respect and took a greater care of the whole than of the less or of any parts of the greater and had a greater regard to the general and more universal than particulars where the latter as less considerable were to give way to the former as of the greater concernment and tendency to the weal of the Publick when as the Sun and the Moon by their happy influences in doing good to the universality of Mankind do sometimes we know occasion much evil and damage unto many men in particular one mans gain is anothers loss the benefit comfort and joy of one hapneth to be the grief and disappointment of another and the aggrandizing of some the lessening of others Lex ad particularia se non resert sed ad generalia The Law doth not intend to provide for particulars but generals Legis ratio non fit raro accidentibus Laws are not usually made for things which do seldom happen Et citius tolerare volunt privatum damnum quam publicum malum Will sooner tolerate a private and particular damage than a publick evil or grievance for the Priviledges granted to the City of London to be Toll-free in all Markets Fairs and Places of the Kingdom which makes them able to under-sell all others and to be Masters as now they are of all the Commerce and Trade of the Nation Their custom That no Attaint shall be brought of a Jury impannelled in London to enforce a Gentleman or Foreigner not Free of the City Arrested to give Bail or Surety by Freemen or Citizens That every Citizen or Freeman may devise Lands or Tenements in Mortmain or that any Man to whom Money is owing may Arrest any Man for Money upon a Bond or Bill before the Money be due or payable or Attach Moneys in another Mans hand within the City of one which oweth Money to the Debtor The forbidding Foreigners and Men not Free of the City to Work or keep Shop within the City or Liberties thereof That if any Freeman sufficient and able shall be summoned by a Serjeant of the Sheriff of the City to appear at Guildhall to answer a Plaint and make Default he shall be Amerced the grand Distress presently awarded and his Doors fastned and Sealed untill he shall come to answer and if it be testified that he hath broken the Sequestration shall be Arrested by his Body or if otherwise he is like to escape away or is not sufficient a Writ of Capias shall be awarded to take his Body or a Writ to Arrest and take his Goods That in a Writ of Dower the Tenant shall be three times summoned That a Citizens Wife can have no Estate in Lands devised unto her further than during her life The ancient and just Priviledges of the Clergy not to be tried before a Secular Judge for any criminal Matter nor be compelled to abjure if having committed Felony he flie to a Church and albeit he hath had his Clergy for Felony may have it again and shall not be Burned in the Hand nor have his Tythes or Horse distrain'd as he traveleth in any Civil action or matter whilst he hath other Goods not to have his Goods and Chattels to be distrained in his Fee or Estate of the Church for purveyance when it was required and is to be free from bearing any temporul Office and their Bodies not to be arrested or imprisoned upon a Statute Mechant although an Act of Parliament doth without exception of any Persons severely enjoyn it That Priviledge allowed to Knights by the ancient Laws of England which saith our Selden was that their Equitatura or Horse and Armor were priviledged from Executions of Fieri or Levari facias although they were to Levy the Kings Debts which the Law did so geratly favor as it is to be preferred before all other Mens and if he should dishonourably absent himself from the Kings Service when his aid was required and that all that he had was subject to an Execution yet one Horse was to be left him Propter dignitatem militiae in regard of the honour of Knighthood and such other of his Horses as were for his ordinary use were to be spared The exemption of divers Abbeys and Monasteries from the Jurisdictions and Visitations of their Diocesan or Metropolitan Bishops The Priviledges and Jurisdictions granted by King Edward the third in the 27th Year of his Reign to York Lincoln Norwich Canterbury Westminster and divers other Staple Towns to be free from purveyance and Cart-taking giving them liberty to hold Pleas by the Law-Merchant and not by the common Law of the Land That they should not implead or be impleaded before the Justices of the said Places in plea of Deâ—â— Covenant or Trespass concerning the Staple And that the Houses shall be let for reasonable Rents to be imposed by the Mayor of the Staple The Modus decimandi abatement or manner of Tythes being at the first a temporary favour or kindness continued and crept into a Custom and thence into a Law and Priviledge which hath carried away or choked a great part of the Clergies Tythes and Maintenance The abundance of Rights and Priviledges of Common of vicinage or appendant or of some stinted or not limited sorts in the Ground and Soyl of the Propritors throughout the Kingdom of Common of Estovers in some of their Woods the throwing of many Meadows open to have Common in some Woods for their Cattel after seven years growth and to Common upon the first day of every August the Custom of the Town of Wycombe in the County of Buckingham that any under the age of thirteen years might give or devise Lands and that no Tythes should be paid for any Wood in the Wild of Kent Together with the many Freedoms Franchises and Priviledges to be quit ab omni secta Shirarum Hundredorum all Suit Scot and Lot c. and Service to Sheriffs Courts and Hundreds which with very many others not here recited do necessarily appear to be as prejudicial to some part of the People who in the Weal-publick or some of their Posterities afterwards partaking or enjoying of the like Priviledges do or may find themselves abundantly recompenced may be as prejudicial to some as they are beneficial to many who may at the
and unfitting a course or method of Government For can any man that is Master of the least grain of Reason or Prudence think it safe for a Kingdom so to restrain if it could be a Soveraign Prince when a person in time of Pestilence or otherwise shall with a Plague-Sore running upon him come into the presence of the King who in case of Leprosie when it was more frequent than now it is can for the preservation of His People from the infection thereof make His Writ de Leproso amovendo command the Leper to be removed to some other place that He should have no power to bid any of His Servants to cause him to be taken away or put in prison Or that King James when his Life was assaulted by the Assassinate which Earl Gowrey had appointed to murther him did transgress any Law of Scotland Nature or Nations when he did arrest and struggle with him until the loyal Sir John Ramsey came to his Rescue Or that that prudent Prince after his coming into England did break any Law of England Nature or Nations or not perform the Office of a King when by his own Authority he did without sending to the Lord Chief Justice of the Kings Bench or a Justice of Peace for his Warrant cause Sir Thomas Knivet and others to apprehend Guydo Faux but some minutes before the Match should have been secretly and undiscovered laid in order to the firing of the Gunpowder and other Matterials which were shortly after to take fire for the accomplishment of the intended treason of him and his wicked Complices to destroy the King Prince Nobility and the Chiefest of his People assembled in Parliament and all that were in or near the Cities of London and Westminster by the Gunpowder Plot of blowing up the Houses of Parliament And whether a King may not in the like case of Contempt or Danger as well do it as he may do where a Souldier prest in the Kings Service upon a Certificate by the Captain into the Chancery being the Watch-Tower or Treasury of the Kings Justice that he absented himself send his Writ or Mandate to one of his Serjeants at Arms to take him which Sir Edward Coke saith may be done per Legem terrae by the Law of the Land and may upon a Certificate of an Abbot or Prior into the Chancery do the like by his Writ to the Sheriff to take a man professed in Religion that is Vagrant and alloweth it to be Lex Terrae a Legal Process so to do in honorem Religionis in honour and respect to Religion or may not as wel imprison a man for a Contempt as Discharge him Or why He may not Arrest or cause any man to be Arrested for Felony or Treason or but suspition thereof when Sir Edward Coke is of opinion any man may do in the Kings Name upon a common Fame or Voice or Arrest a man by warranty of Law and of his own Authority which woundeth another dangerously or keepeth company with a notorious Thief whereby he is suspected or if the King shall not upon necessity or extraordinary occasions be enabled to do it for that supposed rather than any reason at all that he ought not so to do in regard that no man can have an Action against Him for any wrong or injury done unto him by the King How have our Lawes and reasonable Customes for many Centuries and Ages past submitted unto and not at all complained of the Kings Seizure of Lands but suspected to be forfeited or of Lands aliened without Licence or pardon of Alienation and the like Or why should not our Kings have as much liberty as the holy King Edward the Confessour might have had if he would to have commanded a Thief to be apprehended for stealing in the Royal Lodgings when he bad him onely be gone lest Hugeline his Chamberlain should come in and take him Or as legally as King Edward the Third and his Council did commit one that was found arm'd in his Palace to the Marshalsea whence he could not be bayl'd or deliver'd until the Kings Will and Pleasure should be known Or as it was adjudged in the thirty nineth year of the Reign of King Henry the Sixth when in an Action of Trespass the Defendant justified the doing thereof by the Command of the King when he was neither Bayliff nor Officer of the Kings and it was adjudged by the Judges that he might so do without any Deed or Writing shewed for it or if they should mistake in their Arrests or Imprisonments of suspected Traytors or Felons should not have as much liberty as a Justice of Peace hath in criminal matters or as the Judges have in his Courts of Justice in civil Actions where the parties that mistake or bring their Actions where they should not or Arrest one man in stead of another are onely punished with Costs of Suit or Actions of False Imprisonment but not the Judges or Justices of Peace for howsoever some Flatterers when King Richard the Third having murthered his Nephews and usurped the Crown and sate one day in the High Court of Chancery had in some of the Pleadings or Causes heard before him alledged that the King could do no wrong and some of our Lawyers have since so much believed it as they have reduced it into a kind of Maxime and given it a place in some of their Arguments Reports Yet Bracton in the Reign of King Henry the Third and Justice Stamford in the Reign of Queen Mary did believe the King might unwillingly by Himself or His Officers or Ministers do wrong and declared the Law to be both in Bractons and Stamfords time that in such Cases the Subjects where they have any matter of Complaint or Grievance need not want their legal Remedies by Traverse Monstrans de Droit or Petition the reason of the latter being as Stamford saith because the Subject hath no other Remedy against the King but to supplicate him by Petition for the Dignity sake of the Person And a late Experience hath told us how a Dispute betwixt our two Houses of Parliament whether a Great Person accused of Delinquency might be Arrested and put under Custody before his Charge or Accusation could be made ready gave the Party opportunity to escape into the Parts beyond the Seas and the Disputants leisure and time enough to agree of the matter And it should be remote enough from any the suspition of Errour or over-credulity for any man to think an Arrest or Imprisonment by the immediate Command of the King in the case of Treason or Felony or but suspition of either of them not to be as legal as that of a Justice of Peace made by a Lord Chancellor or Lord Keeper of the Great Seal of England in his Name and by his Authority derived under him And those who will take out Sir Edward Coke's before mentioned Lessons and enter themselves into
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
suos ibidem et ad assignand ' Justic ' per Commissionem et ad Error ' corrigend per ipsum Episco pum vel alios Justiciar suos tam ad sectam Domini Episcopi quam aliorum praediâ—tus Willielmus replicavit quod non esset consonum rationi se ipsum de facto prosecutione proprijs fore Judicem cum proprie ad Regiam Majestatem in omnibus Causis ortis inter subditos Jurisdictio pertinet dinoscere et licet ad aliquam Personam per privilegium speciale de causa cognoscere indultum fuit si substitutus in exhibitione Justitiae defecerit Errorem per superiorem et non per substitut ' corrigi debet et super hoc dati sunt dies de termino in terminum To which he pleaded that no Writs were delivered to him at Durham and to that which was delivered unto him at Waltham he had returned that he is Count Palatine and Lord of the Royalty of the Lands called the Bishoprick of Durham and hath all the Rights and Regalities which do belong unto a Count Palatine and that Royalty there to be exercised by him and his Ministers and Justices that is to say hath a Coroner Chancellor and Court of Chancery and that the Kings Officers do not in any thing intermeddle therein and that the said Bishop as Count Palatine hath there likewise his Court and Justices of Common-Pleas as well real as personal and power to assign by Commission Justices to correct and reverse Errors committed by him or any of his Justices as well at his own Suit as others Unto which the said William replyed That it was not reason that he should be Judge of his own Actions when as properly it belonged to the Majesty of a King to determine of all Causes betwixt his Subjects And although he in favour granted to some Person a special priviledge to hear and determine Causes yet if any substituted by him do fail in the distribution of Justice the Errors shall be corrected by the Superior and not by the Substitutes whereupon further days were given from Term to Term. Nor was the Duties of Subjects so worn out but that so much respect was in those better Times given to our Kings Royal Protections granted to such as were not employed by them as the Laws and reasonable Customs oâ— England did allow the protected Persons in their Lands and Estates to bring their Actions against the Infringers or Disturbers thereof as in the Case of Roger de Limecote against the Sheriff of Liecester in the first year of the Reign of King Richard the First for disseising him of two Knights Fees Nicholas Talbot against William Prior of Dunstar in the eight and thirtieth year of the Reign of King Edward the Third of Walter Warr against Gervase Wretchey and John Parkey in the same year and of many others in the said Kings Reign and no Pleas in Bar or alledging Illegality put into the same but in others some collateral Pleas and Defences made by Releases or the like For those Lovers of their Countrey and honor of their Kings did not think as some would fondly and untruly assert that all the Royal Protections granted by them had at the first no better an Original or Foundation than an Imitation of the many Protections and Priviledges granted by our Kings and Princes to Bishops Monasteries and Religious Houses did not believe that our Kings could not respite for a while the payment of moneys due unto any of their Subjects or do as much as amounted to it when King Edward the Third in his Wars with France and great want of Moneys did about the thirteenth year of his Reign revoke divers Assignations for the payment of Moneys due unto private and particular persons until he should be better enabled to pay them And it was about the twelfth Year of the Reign of King James in the Grand Case of Boltons Complaint against the Lord Chancellor Ellesmeere adjudged in Parliament That upon a Bill called A Bill of Conformity exhibited in Chancery by a Debtor against his Creditors for not accepting of his Offer of as much satisfaction as he was able to give them and for refusing thereupon to permit him to enjoy his liberty the Lord Chancellor or the Lord Keeper of the Great Seal of England might by Injunctions prohibit and stay all Suits at the Common Law commenced by him or any such refractory Creditors For our Courts of Chancery Kings-Bench Common-Pleas and Exchequer have in their several subordinate Authorities not seldom mitigated and reduced the high and unreasonable Fines incertain demanded by divers Lords of Manors of their Copy-hold Tenants for their Admissions unto a more reasonable Rate of two years improved Value and enforced them to accept it And Sir Edward Coke in his Comment upon Magna Charta would not bring into the meaning of the Clause of Nulli negabimus vel differemus Justiciam That the King would not deny or delay Justice such Protections as do appear in the Register and are warranted by the Books of Law And although in the eighth year of the Reign of King Henry the Sixth it was in transitu and by the way said by Cottesmore a Judge in the Case concerning the Priviledges of the University of Oxford That the King cannot grant that a man shall not Implead or have any Action against another Yet it was at the same time declared to be Law and right Reason by Babington a Judge That to a Lord of a Manor Conusance of all Trespasses done within his Lordship may be granted by the King and that a Plaintiff shall be bound to bring his Action accordingly and that in that Case the King hath not fore-closed him of his Action so as our Novelists and such as invent all the Oppositions they can against the just and legal Authority of their Sovereigns may do better to acknowledge that howsoever it was the opinion of some of the Judges in the Reign of King Henry the Sixth That if any should Arrest a man by the Kings Command when all men Arrested are so by the Authority of the King and his Writs or Process an Action of False Imprisonment might be brought against him that obeyed the Kings Command although it was done in the presence of the King Yet the whole Tenor and Meaning of that Case and that sudden Opinion arguendo or by way of instance deliver'd thereupon was no more but that such a Command ought to be attended with some Specialty or cause shewed And so little did the Judges of the Court of Kings-Bench in Trinity Term in the ninth year of the Reign of King Henry the Fifth intend or think it fit to subject to the humor of any froward or undutiful person the important Affairs and Service of the King As William Reedhead and Nicholas Hobbesson Purveyors for the King having taken forty Quarters of Malt for the Kings use for the Victualling
judged the King had done wrong and this was beyond their knowledge for the King might have committed them for other matters then they could have imagined and if they had bailed them it must have reflected upon the King that he had unjustly Imprisoned them and that the differences made in the Arguments of that Case betwixt remittitur and rimittitur quousque remitted or remitted how far or unto what Time he confest he could find no more in it but that they were new inventions to trouble old Records and Judge Doddridge said that for the difference betwixt remittitur and remittitur quousque he could never find any he had sate in the Court fifteen years and should know something surely if he had gone in a mill so long some dust would cleave to his Clothes And in the Petition of Right granted in the next ensuing year in the framing and procuring whereof Sir Edward Cook that Venerandus senex investigator legum Angliae very Reverend and great Lawyer whose Learned labors after his discontent for the loss of his place of Lord Chief Justice of the Court of Kings Bench and the former favors of King James tended as much as he could for the finding out and publishing of every thing that might advance the Peoples liberties but as little as might be for the Kings Just Rights and Prerogative assisted by that great Monarch of Letters and Learning Mr. Selden the Excellently Learned Sir Edwyn Sandys Sir Robert Philips Sir Dudly Digges Knights and other great Patriots and well wishers to the Peoples Liberties there was nothing omitted of their care and industry in the search and scrutiny of all that could be found of Law Learning Reason or Precedents to support the Subjects claims therein or effect their desires There is no restraint of that just Legal and very Antient Priviledge of the King and Queens Servants not to be Arrested or Imprisoned without Licence or leave first obtained of the Lord Steward Lord Chamberlain of the Kings Houshold or those other great Officers of His House or Court to whom it appertained nor any thing directly or consultò urged against that necessary part of the Duty of Subjects to their Sovereign or Respects to Him in His Servants Nor in that fatal Remonstrance made by the House of Commons in the after long and over lengthened Parliament the fifteenth day of December 1641. wherein every thing that could be imagined or had but a face of a grievance in the government was too industriously amassed or mustered up was there any complaint of the Protections granted by the King or Priviledge of the Kings Servants in Ordinary from being arrested without Licence first had Neither in those high and mighty undutiful and unchristian like nineteen Propositions sent to His late Majesty in June 1642. whereby they denyed him the care and education of His Children office of a Common Parent to His People and a natural Father to His Children and would have gained to themselves or taken from him His Kingly Authority is there any thing in that particular complained of or desired in remedy of that since supposed evil But that assembly then called a Parliament were so far from hindring it as when they were afterwards Petitioned by divers Creditors against their own Priviledges and the Protections of themselves and their Servants they were pleased to answer that they would take it into their Consideration but in many years after were so busie in the Ruine of the Kingdom and a Purveyanâ—e of Places of honor and profit for themselves as the People had then and may yet have reason to believe they never intended to do it And were so unwilling to have some Prisoners Committed by them to be discharged by Bail upon Writs of Habeas Corpora as they bespoke it for their Priviledge to Commit Matthew Wren the late Bishop of Ely and let him continue 16 or 17 years a Prisoner in the Tower of London without shewing any Cause or making any Charge against him under a Colour and Pretense never to be justified that the Legislative Power and Soveraignty was Inhaerent and Radically in the People who had delegated and entrusted it unto them as the Aenigmatical and unknown Keepers of their Liberties whereby as they imagined their Commitees and Sub-commitees might take as Extravagant Liberties as themselves insomuch as when Mr. Edward Trussel a Loyal Citizen of London about the year 1643 brought his Habeas Corpus to be bailed upon that Parliaments Commitment for not payment of the twentieth part of his Computed Estate Serjeant John Wilde and Mr. Hill two Members of the House of Commons of the then miscalled Parliament came publickly to the Judge sitting in the Kings Bench and took such a course by Whispering and delivering Messages to him as the trembling Judge calling God to witness how willing he would be to do right and be afraid of no body declared it for a kinde of Law that he could not Bail any man where the Commitment was by such a Soveraign Court as the House of Commons in Parliament Who believed it to be so great an Incident and necessary requisite to their usurped Government as they did about the year 1645 Imprison a Citizen of London for Arresting a Nobleman of Germany for some Wares Trusted when he was but in the Company of some of the Parliament so called Members as they were going unto or coming from one of their Sumptuous or Thanksgiving Feasts or Dinners for success in their evil Actions And Oliver Cromwell their man of sin great Captain and Master of as much Perjury as he could himself Commit or drive others unto found it to be so necessary for the maintenance of His pretended State and unjust Authority enforced from the True Proprietor as he was pleased so to Indulge and Protect His Menial Servants with the like Priviledges as one Mewes who attended him could not be Indicted for perjury without Licence first obtained and one Captain William Sadlington having taken from a Dutch Merchant Residing in London Goods or Merchandise at Sea to the value of six or seven thousand pound or endamaged him as much and coming afterwards into England and for some special service done to that Protector of Mischief and Evil Designs being made one of his Domestiques or Servants in Ordinary the Dutch Merchant Commenceing an Action at Law against him for what he had lost and was damaged and causing him to be Arrested was not only with the Bailiffs that Arrested him Imprisoned but enforced before he could have his Liberty to discharge the said William Sadlington and Release his Action And some of his Major Gerals can if they please bear witness how much their Oliver and themselves protected his and their Menial Servants and extended the freedom from Arrest until leave or licence obteined as far as their Common Red-coated Souldiers and how much those Major Generals in their several Provinces did in other things all they could to Stifle
Westminster did in his valedictory oration or speech made to the Society of Grays-Inne whereof he was a member at his departure from thence when he was made a Serjeant at Law mention it to have been a custome in that House at his first coming thereinto to admit none but such as were Gentlemen born And Sir John Ferne was so far from allowing the degree or title of Barrester to make one ignobly born to be thereby ipso facto in truth a Gentleman as he was of opinion that if such a Barrester were not before a Gentleman born it only gave him as it did to Doctors of Law Divinity Physick Prothonotaries and other Learned men a capacity to demand or have a Coat of Armes given him and to be then stiled a Gentleman otherwise he might only write himself A. B. Gentleman of Lincolns or Grayes-Inne but not A. B. of Lincolns or Grayes-Inne Gentleman and was no longer such a reputed Gentleman than he continued in that Society into which he was admitted and wished that Supreme Authority would renew the first institution of those Assemblies and that by Visitation all such might be weeded out that cannot shew the badge of a Gentleman For notwithstanding that the famous Lawyer Vlpian was sometimes stiled Nobilis and at other times Clarissimus yet if he were not born a Gentleman it was propter Sapientiam vel Nobilitatem animi in regard of his Wisdom and Nobility of mind improprie dictum and improperly so called For the title of Gentleman well understood hath more of a Worshipfull signification than the name or title of Esquire which in its primitive use or acception was but a Scutifer or Armiger a Shield or Armour-bearer as was that of Jonathans Servant to a Horseman or Gentleman for such were they most commonly called or allowed to be who held their Lands of the King in Capite or by Knight-service and at the old Rome it was a credit or mark of esteem to be said and believed to be a Gentleman de gente Julia Octaviana vel Claudia of such or such a Kinred Off-spring or Race as the Children of Israel were long before known and distinguished by their Tribes or Genealogies And that eminently learned Antiquary Sir Henry Spelman inveighing against such an abuse of the title of Esquire wonders that the Benchers of the Innes of Court would suffer it and saith that not long before this present Century or age wherein we now live Nominatissimus in patria Jurisconsultus aetate provectior etiam munere gaudens publico praediis amplissimis generosi titulo bene se habuit the worthiest antient Lawyer and most eminent in his Countrey of great Estate and in a publick Office did well content himself with the title of a Gentleman sic alii nuper viri splendidi sic quidem hodie celeberrimus Serviens ad Legem so other eminent men and so a famous Serjeant at Law forte guod togatae genti magis tunc conveniret Civilis illa Appellatio quam Castrensis altera probably because that Civil Appellation or Title did more agree with the Gown or men of the Long Robe than that of Esquire which was derived from War or antiently used but as an attendant upon it And in that did not much dissent from the learned Sir Robert Cotton who believed that the bearing of Armes was not before the time of Bartolus that great Civil Lawyer who lived about the year of our Lord 1356. in the Reign of Charles the 4th Emperor permitted to Gown-men Lawyers or Advocates or as the French do term them Men of the Long Robe and under that name saith he are Learned men Clergy and Scholars comprehended or else why should that great Lawyer Bartolus argue the matter whether it were convenient that he should take or bear the Armes which that Emperor offered to give him being a peculiar Reward and Honour in Military Service in antient time or whether he should refuse it at the Emperors hands for if it had been then usual for the Long Robe to have enjoyed the honour of bearing of Armes Bartolus would never have doubted thereof But since it was not then accustomed he made it a question whether he should take those Armes or no but in the end concluded that the Fact of his Prince was neither to be disputed or rejected and therefore was willing to assume the Armes which the Emperor had given him And in England without the Authority of their King Soveraign amongst other the affairs and businesses of Genealogies bearing allowing or granting of Coats of Armes usage of titles and distinctions of Degrees delegated to the principal Heralds and Kings of Armes in their several Provinces will as little become those which are not of Gentle extraction in their unduly assumed title of Esquire as it would do an High Sheriff Justice of Peace or Escheator being no Esquires and sometimes no Gentlemen to imagine themselves to be Esquires or any more than quasi Esquires or Esquires improperly so called because they themselves gave the Clerk or writer of their Patents or Commission a direction so to stile them or the Clerk or writers pen following the mode of the like mistakings did with as little authority as reason so create them which supercilious self-conceited Errors the Kings Great Seal of England and the great Honour and Authority which doth legally and justly appertain unto it cannot support or make to be no Errors when as it is male recitando although the Kings giving by an actual Ceremony the Honour of Knighthood to one that is not a Gentleman born doth ipso facto in the opinion of our learned Selden make such a Knight to be a Gentleman and will be as much without the reach of a Non-obstante or dispensation as where Lands are said to be one mans when they are anothers a Town named a City when it is not a Church said tâ— be in one Diocess or County when it is in another or when a man disenabled or ungentleman'd by reason of his Fathers attainder of Treason and corruption of blood shall without restoration or reversal of that Attainder be mentioned or recited in the Kings Letters Patents as an Esquire or Gentleman Or that an High Constables Wife should swell her self into an opinion that her Husband is as much an Esquire as the best because the Sheriff Under-Sheriff or Under-Sheriffs Deputy or Clerk of the County where he dwelleth when he was retorned to be a Jury-man foolishly and carelesly stiled him in his Pannel by the name and title of Esquire But would be as great an affront to truth and contradiction to reason as some Citizens of London late invented piece of proud non-sense or ungrounded phansie to stile a wealthy Citizen an Alderman or dream that he is one when he is none at all and paid a great Fine that he might be none and is not so much as entitled to wear an Aldermans Gown
as the Court of Chancery did in the 8th year of the Reign of Queen Elizabeth by her Writ supersede stay 2 Writs of Exigent in the Court of Common-Pleas at the Suit of two several persons against Robert Webb one of the Cursitors of the Court of Chancery by reason of his Office Attendance in that Court which Writ of Priviledge and Supersedeas was allowed by the Judges of that Court and an entry made upon the Roll where the Plea of his Priviledge was entred in these words Ideo consideratum est quod praedictus Robertus libertatibus privilegis praedictis gaudeat Ac separalia brevia praedicta ei conceduntur therefore it is ordered that the said Robert VVebbe shall enjoy his Liberties and Priviledges and that several Writs as a foresaid be granted unto him probably Writs of Supersedeas to the Sheriffs of London unto whom the Writs of Exigent had been before sent and directed or as the Court of Chancery hath done in the ninth year of the Reign of King James in the Case of Valentine Saunders Esquire one of the Six Clarkes of that Court require by the Kings Writs the Justices of the Court of Common-Pleas to surcease the prosecution of the said Valentine Saunders to the Utlary or might aswell defend their Regal Rights in the case of their Servants in Ordinary by a Writ de Rege inconsulto commanding as in some other cases of their concernments not to proceed against them until their pleasure be further signified or assert and command the Liberties Priviledges of their Servants by Writs de libertate allocanda aswell as for Liberties to be allowed unto Citizens or Burgers which contrary to their Liberties were impleaded But too many of the Kings Servants Creditors for all are not so uncivil who would be glad to find a way or some colour or pretence of Law rudely to treat the Rights of the King and his Servants would willingly underprop that their humour and design with an objection that our Kings have conveyed their Justice unto their established Courts of Justice at Westminster and are not to contradict alter or suspend any thing which they do in his name therein And that if any of the Kings Servants in Ordinary be arrested without leave the King or the great Officers of his Houshold may not punish those that do offend therein and that being so Arrested they are so in the Custody of the Law as they ought not to be released until they do appear or give Bayl to appear and answer the Action CAP. VI. That the Kings established and delegated Courts of Justice to administer Justice to his People are not to be any bar or hinderance to his Servants in Ordinary in their aforesaid antient just and legal Priviledges and Rights or that the Messengers of his Majesties Chamber may not be sent to summon or detein in custody the Offenders therein or that any of his servants being arrested without licence are so in the custody of the Law as they cannot before apparance or bayl to the Action be delivered WHich will not at all advantage their hopes or purposes if they shall besides what hath been already proved aswell as alledged give Admittance unto a more weighed consideration that delegatio ad causas non intelligitur ad futuras a Commission or Authority entrusted for some special or determinate matters is not to be understood to extend unto all that in the administration of Justice may afterwards happen that in the Court of Exchequer the Barons are and should be the special Ministers and Supervisors of the Kings Revenue subject to his Legal Mandates and disposing power that the Court of Common-Pleas being a Court erected and continued by our Kings for the dispatch of Justice and ease of their Subjects and People in Common-Pleas or Actions wherein the King his Crown and Dignity are not immediately concerned do only hold Pleas and have Jurisdiction and Cognisance ratione Mandati by reason of the Kings Original Writs Command or Commission issuing almost in every Action from himself out of his High Court of Chancery that the Justices of the Kings-Bench are ad placita coram Rege tenenda assignati assigned as coadjutors to the King to hear determine Pleas supposed by Law to be heard before himself in that Court and by the ancient stile title of their Records said to be de consilio Regis of the Kings Councel that in the High Court of Chancery the King by the Lord Chancellor or Lord Keeper of the Great Seal of England as his Substitute or Deputy as some of our Judges in the 9th year of the Reign of King James have believed them to be in that supereminent and superintendant Court of and over all his other Courts of Justice commands his Sheriffs who are sworn to execute his Writs and not to prejudice his Rights to execute their Writs directed unto them in his Name and under his Seal doth provide and give remedies in all emergencies of Law and Justice where the Supreme and Legal Authority is implored or prayed in ayd or assistance And that where a Delegated Power or Jurisdiction is granted by the King as not only the Lawes of many other Nations but our Bracton and Fleta men not meanly learned in the antient Laws and Customes of England as well as in the civil Laws have adjudged he doth not exuere sede potestate so grant away that Jurisdiction as to exclude himself from all power and not be able upon just and legal Occasions to resume it or intermeddle in some part thereof when a Lord of a Mannor though he hath by a Patent or Commission granted to his Steward for life the power or jurisdictions of keeping his Courts assessing of Fines and the like matters appurtenant thereunto is not debarr'd when a just occasion shal either necessitate or invite him thereunto from his personal assessing of Fines or other Acts belonging unto the Court or that power authority which he should have over his Tenants that where the Liberty of a Court Baron appurtenant to the Grant of a Mannor with the jurisdiction of Sake or Soke holding of Pleas and punishment of Offenders is granted by the King or allowed to any man and his heirs by Custome or Prescription the King is not debarred upon any grievance or complaint of any Tenant of the Manor to command Justice to be done unto him by his Writs of Right Close or Patent and where a Leet being a more large or greater Jurisdiction hath been granted to a man and his heirs to seize and grant it to another for not rightly observing the order of Law therein as for not erecting a Pillory making of a Clerk of the Market and the like or altogether disusing of it and where liberties of retorna Brevum executing returning Writs in a certain Precinct or Liberty have been granted to a man his Heirs common practice and
course of Law its Process may inform us that the King hath notwithstanding such a power superintendency of Justice inherent in him over all the Courts of Justice high or low in the Kingdome as upon the Sheriffs retorn quod mandavit Ballivo libertatis that he made his Warrant to the Bayliff of such a Liberty to arrest such a Defendant and that the Bayliff nullam sibi dedit responsionem had made him no retorn nor answer he may thereupon by his Justices cause a Writ to be made to the Sheriff commanding him quod non omittat propter aliquam libertatem Ballivi libertatis c. quin capiat that he do not omit to enter into the said Bayliffs liberty and arrest the Defendant and may also when a Defendant is outlawed cause at the instance of the Plaintiff a Capias Vtlegat Writ to be made to take arrest the utlawed person with a non omittas propter aliquam libertatem power and authority to enter into any Liberty under the name of his Attorney General as an Officer intrusted with the making of the said Writs of Capias Vtlegatum and that Offices either granted by the King for term of Life or in Fee or Fee-Tayle are forfeitable by a Misuser or non user by not executing that part of the Kings Justice committed to the care and trust of the Officers thereof And so necessary was the Kings Supreme Authority heretofore esteemed to be in the execution and administration of Justice as in the Case between the Prior of Durham and the Bishop of Durham in the 34th year of the Reign of King Edward the first where amongst other things an information was brought in the Kings-Bench against the Bishop for that he had imprisoned the Kings Officers or Messengers for bringing Writs into his Liberty to the prejudice as he thought thereof and that the Bishop had said that nullam deliberationem de eisdem faceret sed dixit quod ceteros per ipsos castigaret ne de cetero literas Domini Regis infra Episcopatum suum portarent in Lesionem Episcâ—patus ejusdem he would not release them but would chastise them or any other which hereafter should bring any of the Kings Letters or Writs within his Bishoprick to the prejudice of the Liberties thereof And in the entring up and giving the Judgment upon that Information and Plea saith the Record Quia idem Episcopus cum libertatem praedictam a Corona exeuntem Dependentem habeat per factum Regis in hoc minister Domini Regis est ad ea quae ad Regale pertinent infra eandem libertatem loco ipsius Regis modo debito conservanda exequenda Ita quod omnibus singulis ibidem justitiam exhibere ipsi Regi ut Domino suo mandatis parere debeat prout tenetur licet proficua expletia inde provenientia ad usum proprium per factum praedictum percipiatur in regard that when the Bishop had the liberty aforesaid by the Kings Grant or Charter from the Crown and depending thereupon he is in that as a Servant or Minister of the Kings concerning those things which do belong unto the Kings Regality within the Liberty aforesaid to execute and preserve it in a due manner for and on the behalf of the King so as there he is bound to do Justice to all men and to obey the King and his Commands as his Lord and Soveraign although he do by the Kings Grant or Charter take and receive the profit arising and coming thereby Wherein the Judges and Sages of the Law as in those Ancient Times they did not unfrequently in matters of great concernment have given us the reason of their Judgment in these words Cum potestas Regia per totum Regnum tam infra libertates praedictas quam extra se extendant videtur Curiae toti Consilio Domini Regis quod hujusmodi imprisonamenta facta de hiis qui capti fuerunt occasione quod brevia Domini Regis infra libertatem praedictam tulerint simul cum advocatione acceptatione facti Et etiam dictis quae idem Episcopus dixit de Castigatione illorum qui brevia Regis extunc infra libertatem suam portâ—rent manifeste perpetrata fuerunt when as the power and authority of the King doth extend it self through all the Kingdome as well within Liberties as without it seemed to the Court and all the Kings Counsel that such imprisonments made of those which brought the Kings Writs within the Liberty aforesaid the Bishops justifying and avowing of the Fact and the Words which the Bishop said That he would punish all such as should bring any Writs to be executed in his Liberty were plainly proved Et propterea ad inobedientiam exhaereditationem Coronae ad diminutionem Dominii potestatis Regalis Ideo consideratum est quod idem Episcopus libertatem praedictam cujus occasione temerariam sibi assumpsit audacim praedicta gravamina injurias excessus praedictos perpetrandi dicendi toto tempore suo amittat Cum in eo quo quis deliquit sit de Jure puniendus Et eadem libertas Capiatur in manus Domini Regis Et Nihâ—lominus corpus praedicti Episcopi capiatur Wherefore because it tended to disobedience and a disherison of the Crown and diminution of the Kings Power and Authority It was adjudged that the Bishop for his rash presumption and boldness and for committing the aforesaid wrongs and injuries should forfeit his Liberty aforesaid for that every man is to be punished according to the nature of his offence And it was ordered That the Liberty should be seized and taken into the Kings hands and that the Body of the Bishop notwithstanding should be taken into Custody For the Kings Justice to which his Coronation Oath is annexed is inseparable from his Person so fixed to his Diadem and Regal Authority as it is not to be absolutely or any more then conditionally deputed and intrusted to any other or otherwise then with a reserve of the last Appeal and his Superiority and therefore King Edward the first in some of his Writs Commissions or Precepts saith that he but not his Judges was Deâ—itor Justitiae so a Debtor to Justice as not to deny it to any of his People complaining of the want of it and ad nos pertinet the care thereof belongeth to the King and to that end appointed his high Court of Chancery and his Chancellor or Lord Keeper of the Great Seal of England and required all the Officers Clerks of that Court to take care that pro defectu Justitiae nullus recedat a Cancellaria sine Remedio no man for want of Justice do go away from the Chancery destitute of remedy from whence also lyes an Appeal to the King himself in Parliament and in the Case of Sir William Thorpe Chief Justice of England in the 24th year of the Reign of King Edwardâ— the third being put