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
of Her Majesties Courts at Westminster and thereby Her Majesties Subjects and Officers so terrified that they dare not Sue or Execute Her Majesties Lawes Her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings and by unlawful Imprisonments have been constrained not only to withdraw their Lawful Suites but have been also compelled to pay the Pursevants so bringing such Persons great summes of money All which upon Camplaint the Judges are bound by Office and Oath to relieve and help By and according to Her Majesties Laws And where it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to Custody by Her Majesty or her Council is to be detained in Prison and not to be delivered by Her Majesties Court or Judges we think that if any Person be committed by Her Majesties Command from Her Person which may be understood to be so when it is by the Lord Chamberlain of the Kings house or other great Offâ—cers of the Houshold who are commonly Privy Councellors and do it by their Princes Authority or by Order from the Council Board And if any one or two of the Council Commit one for High Treason such Persons so in the Cases before Committed may not be delivered by any of Her Courts without due tryal by the Law and Judgement of acquittal had Nevertheless the Judges may award the Queens Writ to bring the Bodies of such Prisoners before them and if upon return thereof the causes of their Commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remand the Prisoner to the place from whence he came which cannot conveniently be done unless notice of the cause in general or else in special be given to the Keeper or Goaler that shall have the custody of such a Prisoner In which Remonstrance or Address it doth not appear that any Commitments therein complained of were for Arresting any of the Queens Servants without leave first demanded or that any of the matters therein suggested were for that only cause or before Judgements or Execution obtained some of them being expresly mentioned to have been after Judgements and no certain evidence more than for what came directly unto those Learned Judges by the before mentioned Mandate of the Queen for the supposed grievances therein which though much be attributed to the well weighed wisdom of those grave Judges and that their Information had as much of Truth as without a hearing of all parties and legal Examination of Witnesses could be found in it cannot be presumed to be had in a judiciall way after Trials or Convictions but received and taken in from the murmur and Complaints of some Attorneys or Parties only concerned without hearing of the other side or parties or that it was so prevalent with the Queen as to make any Order or restraint or cause any Act of Parliament to be made for that purpose For it will not come within the Compass or Confines of any probability or reasonable construction that those Reverend and Learned Judges Sir Christopher Wray and Sir Edmond Anderson who together with Sir Gilbert Gerard Master of the Rolls had in the case betwixt the Lord Mayor and Citizens of London and Sir Owen Hopton Knight Lieutenant of the Tower of London In the seven and twentieth year of Her Raign which was but seven years before Certified under their hands unto Sir Thomas Bromley Knight Lord Chancellor and others of Her Privy Council that such persons as are daily attendant in the Tower serving Her Majesty the which was more remote from Her Person and Presence of Her Royal Residence or Palace at White-hall Were to be Priviledged and not to be Arrested upon any plaint in London but for Writs of Execution or Capias Utlagatum or such like they did think they ought to have no Priviledge And that Master Lieutenant ought to return every Habeas Corpus out of any Court at Westminster So as the Justices before whom it shall be returned as the cause shall require may either remand it with the body or retain the matter before them and deliver the body as Justice shall require would complain of Commitments of such as Arrested any of Her Servants without leave when it might be so easily had and the Lord Chamberlain of that time was likely to be as little guilty of enforcing Creditors to withdraw their Suits or loose their debts as the Lord Chamberlain and other great Officers of the Royal Houshold have been since or are now Nor do the words of that Information import or point at the Marshalsea of the Queens Court or Her Messengers to whom as the Kings Officers or Ministers of Justice the Queens Writ might have been brought or directed the sending of Pursevants there remonstrated being more likely to have been for some other Concernments and not for Arresting without leave which for ought that appears was never yet in foro Contradictorio upon any Cause or Action argued solemnly at the Bar and Bench adjudged to be a breach of any of the Laws of England or Liberties of the Subjects or not to be any good Cause of Arresting or Imprisoning such as in despite of Majesty would in ConContempt thereof make it their business especially when they needed not to do it to violate and infringe the Royal Jurisdictions and reasonable Customs of their Sovereign and Protector and the long ago and for many ages allowed Priviledges of their Servants And therefore William Earl of Pembroke L. Chamberlain of the Kings House a man very zealous for the Peoples Rights and Liberties may be believed not to have transgressed therein when he did about the latter end of the Reign of King James give His Warrant to one of the Kings Messengers of the Chamber to take into His Custody and bring before him one Mr. Sanderson for causing Sir Edward Gorge one of the Gentlemen of the Kings Privy Chamber to be Arrested without Licence first obtained and being in the beginning of the Reign of King Charles the Martyr Lord Steward of the Kings most Honourable Houshold did commit a Clerk or Servant to a Serjeant at Law to the Prison of the Marshalsea for Arresting one of the Kings Servants without Licence and when he was bailed by the Judges upon a Writ of Habeas Corpus committed him again and being let at Liberty the second time upon a Writ of Habeas Corpus was again Committed by him and could not be Released until he had set at Liberty the Kings Servant And Philip Earl of Montgomery Lord Chamberlain of the King in His Most Honourable Houshold when he did the first day of November 1626. direct his Warrant to all Mayors Sheriffs Bayliffs and Constables c. to permit Mr. Thomas Musgrave of Idnel in the County of Cumberland His Majesties Muster Master for the County of Westmerland to come
and barbarous manner carry and hale them along the streets to Prison being at noon day refusing to carry them first before a Magistrate as they ought to have done and as was by the said Gentlemen demanded however vpon calling some of the said parties complained of before us and entring into examination of the business we found in general that the carriage of the said Officers and their assistants had been such as was informed yet because the more particular inquiry thereof was a work not so fit to trouble the Board withal we have thought good therefore to refer the due examination thereof to your Lordship letting you to know that if as is conceived you understood of the miscarriage of the said Officers and past it over without reproof that you have wilfully failed both in discretion and duty for that you cannot be ignorant that the proper and usual way of proceeding in a case of this nature against his Majesties Servants had been not by committing them to Prisons but by an address or appeal to the Lord Chamberlain of His Majesties Houshold or in his absence to such other Principal Officers unto whom it appertains to give redress and therefore as the more we consider of it the more we marvel at the insolent carriage of your Officers and the Connivency of your Lordship and other the Chief Magistrates of the City So you are to know that His Majesty and this Board expects not only a good accompt from you in the examination and proceedings of the said Officers and others their assistants in this particular but that His Majestie expects and requires at your hands not as a Respect only but as a Duty that hereafter upon any the like occasions happening within the City concerning His Servants the proceedings against them be by Appeal and Information first to the Lord Chamberlain or in his absence to such other Principal Officers to whom it properly appertaineth and not by Commitments to Goals and Prisons at your pleasure And so we bid your Lordship very heartily Farewell From Whitehall the sixteenth of February 1628. Lord Keeper Lord Treasurer Lord President Lord High Chamberlain Earl Marshal Lord Steward Earl of Holland Earl of Danby Chancellor of Scotland Lord Viscount Dorchester Lord Viscount Wilmot Lord Newburgh To Sir Richard Deane Lord Mayor of London And in the year 1629 granted a warrant for the apprehension of Humphrey Worrall for the Arresting of one of His Majesties Pensioners In the year 1630 the like against Maurice Evans for serving a Subpoena in the Court against John Durson The like for the apprehension of Edward Clark and Samuel Farrier of Canterbury upon the complaint of Thomas Potter for abusing him being imployed in the Execution of a Warrant A Warrant for the Commitment of William Acheson to the Gatehouse for transgressing his Order in arresting Master Shaw and giving his Lordship no notice A Warrant for the apprehension of Tirrell and David Edwards upon the complaint of Richard Eyre for detaining his Horse A Warrant dated the two and twentieth day of November in the year aforesaid for the apprehension of Master Morgan Goodwin Master William Small Under Sheriff of Middlesex and Thomas Brook a Bayliff upon the complaint of Doctor Robotham for an arrest Whereupon they being apprehended did the five and twentieth day of that November procure an Habeas Corpora to be brought to Carter the Messenger to whose custody they were Committed and were thereupon Released but presently by another Warrant his Lordship committed them to the charge of William Wattes The Second of February in the same year the said Lord Chamberlain sent his letter unto the Sheriff of Middlesex in these words Sir I understand that Sir John Wentworth is arrested upon an Execution at the suite of one Beeston and now remaining in your Custody and that some others have Petitioned me wherein when I have found cause I have given way under my hand if any other which have not leave shall offer to bring any Actions against him I do expect and require that you forbear to receive or entertain them unless you see my hand for your Warrant As you will answer the contrary The twelfth of February 1630 granted a Warrant for the Commitment of Symon Hayton and William Taylor for charging the said Sir John VVentworth in Execution being under arrest upon leave granted In the year 1631 a Warrant for the apprehension of Richard Graunt Fowler and John Havit upon the complaint of William Burton a messenger of the Court of Wards The like for the apprehension of Samuel Twynne and Stephen Symons for the Arrest of Ralph Short a post Master A Warrant to apprehend Master Roger Vrmiseon an Attorney of the Court of Common Pleas upon the complaint of Mr. Edward Crofts for an arrest without leave A Warrant for the apprehension of Masier upon the complaint of Nicholas Sherman for distreyning of his goods for his not appearance at the Marsh Court at Greenwich A Warrant for the Commitment of Peter Price to the Marshalsea for serving a Subpoena upon Master George Ravenscroft in the Council Chamber at Whitehall A Warrant for the apprehension of Robert Champion a Serjeant in the Poultry Compter for taking a Prisoner from the Kings Messenger by a Writ probably an Habeas Corpus out of the Kings Bench. In the year 1632 a warrant for the apprehension of John Perkins a Constable for serving the Lord Chief Justice's Warrant upon John Beard in Saint James's Park A Warrant for the Commitment of Leonard Ward a Clark of the Court of Common Pleas and Potters a Bayliff to the Marshalseas for arresting of Edward Pigot a Groom extraordinary without leave A Warrant for the apprehension of John Bishop one of the Lord Mayors Officers In the year 1633 a warrant for the apprehension of Anthony Tompson Clark John Richardson and others for the arrest of George Nicholson a Yeoman of the Guard The like to apprehend Griffin Jones upon the complaint of John Heydon one of His Majesties Musicians for abusive Language given him as fidling Rogue c. The like to apprehend Arthur Toogood and Morgan Castle Butchers for assaulting Mr. Pitcarnes the Master of the Hawkes man The like for the apprehension of Geoffrey Brittingham Anthony Carnaby and William Marbury upon the Complaint of Robert Wood for Actions laid upon him without leave A Warrant to the Bayliff of Westminster to forbear to admit any Writs or Actions against Sir Henry Wotton Knight His Majesties Servant sworn in the year 1627 one of the Gentlemen of His Majesties Privy Chamber Extraordinary in the name of any Person or Persons whatsoever but such as shall have leave Granted unto them under the Lord Chamberlains hand In the year 1635 a Warrant for the apprehension of one Master Atkinson and divers others for the arresting of the Lord Rich being not long before sworn a Gentleman of the Kings Privy Chamber Extraordinary In the year 1636
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
out and Sealed by Officers and Clerks of the Court whence they issued without the privity or knowledge of the King or his Lord Chancellour or Keeper of the Great Seal of England or the Judges of the Court of Common-Pleas and that if those Writs which now and for many yeers past to the great ease of the people have been made in an ordinary way and course at smal rates and charges as anciently as the Raign of King John and King Henry the third should have been made by the privity of the Chancellour or Chief-Justice or of the King himself or granted upon Motion or Petition and read and recited in the Kings presence or in Court by or before the Chancellor or Chief-Justice when such Actions Writs or Complaints were few and seldome yet when afterwards they should appear to be mistaken too sodainly or erroniously granted or that the King or the Court have as in humane affairs it may often happen been misinformed or deceived therein such Writs or Process surprize or mistake may be revoked and rectified and the Writs and proceedings thereupon contradicted by the King or his Authority as hath been done in the Writs of Supersedeas to the Barons of the Exchequer to stay their proceedings in Common-Pleas or to the Marshalsea of matters wherein they have no Jurisdiction that known Rule of Law declaring the Kings Letters Patents of the Grant of Lands to a man in Fee or Fee Tayl to be void where the King is deceived in his Grant or as King Henry the 3d. superseded his Writ de Excommunicato capiendo to Arrest or take an excommunicated person because he was circumvented in the granting of the Writ or made void his Conge d' Eslire to the Priory of Carlisle confirmed an election upon a former Conge or licence or as is often done by that common usual way of Supersedeas made by the King upon matters ex post facto or better information or by his Justices and Courts of Justice by Writs of Supersedeas quia improvide or Erronice or datum est nobis intelligi in regard of misinformation Error or better information or in the vacating of Recoveries Judgments discharging Actions for abuse of the Courts or ill obteining of them or their Writs Process freeing of prisoners taken Arrested by Writs or Process not duly warranted And that such an indirect and feigned prosecution of the Kings Servants to the Utlary designed only to abridge the King of his regal Rights forfeit and annul the Priviledges of his Servants and obstruct and hinder his service and attendance aswell deserves a punishment as that which was usual in our Laws in the Reigns of King Henry the 3d. and King Edward the 1. for indirect recoveries or Judgments obtained by a malitious surprize falshood or non-Summons as the ensuing Writ will evidence Rex vic Salutem praecipimus tibi quod habeas coram Justitiariis nostris c talem petentem scilicet ad audiend Judicium suum considerationem Curiae nostre de hoc quod ipse per malitiam manifestam falsitatem fecit disseysiri talem de tanta Terra cum pertinentiis c. Et unde cum ipse B nullam haberet summonitionem optulit se idem A versus eum itaqd terra capta fuit in manum nostram semel secundo per quani defalt idem A terram illam recuperavit desicut illa defalta nulla fuit ut dic catalla ipsius B in eadem terra tunc inventa ei occasione praedâ—cta ablata eidem sine dilatione reddi facias restitui Praecipimus etiam tihi qd habeas coram c. ad eundem Terminum A B per quos summonitio prima facta fuit in Curia nostra Testata praeterea quatuor illos per quorum visum terra illa capta fuit in manum nostram per quos captio illa testificata fuit in Curia nostra c. etiam illos per quos secunda summonitio facta fuit testata ad certificandum Justitiarios nostros de praedictis Summonitionibus Captionibus Et habeas ibi hoc breve Teste c. The King to the Sheriff talis loci County or place sendeth greeting We command you That you have before our Justices c. such a Demandant that is to say to hear the Judgement Order of our Court in regard that he by malice and manifest fraud caused such a one the Tenant to be disseised of so much Land with the appurtenances c. whereupon when the said E the Tenant or Defendant had no Summons the said A the Plaintiff or Demandant did so prosecute that Action that the Land was taken into our hands a first and second time by which default the said A recovered the Land whereas there was no default as was alledged and took the Goods and Chattels of the said B then found upon the Land and taken from him by that means We command you that without delay you cause the same to be rendred and restored unto him that you also have before our Justices at the same time A and B by whom the first Summons was made and certified into our Court c. and likewise those by whom the second Summons was made whereby our said Justices may of the aforesaid Summons and Captions be certified and have you there this Writ Witnesse c. Or that which King Richard the Second did in Parliament in the fifteenth yeer of his Raign inflict upon Sir VVilliam Bryan for procuring a Bull of the Pope to be directed unto the Archbishops of Canterbury and York to excommunicate some that had broken his house and carried away his Writings by committing him prisoner to the Tower of London that fact and doing of his being by the Lords in Parliament adjudged to be prejudicial to the King and in Derogation of his Laws such and the like artifices and devices being so much disliked by the Commons in Parliament in the 39th yeer of the Raign of King Henry the sixth as they complained by their Petition to the King Lords that VValter Clerke one of their Members a Burges for the Town of Chippenham in the County of VVilts had been outlawed and put in Prison and prayed that by the assent of the King and Lords he might be released and their Member set at Liberty Or that which King Henry the eighth did in the Case of Trewynnard a Burgess of Parliament imprisoned upon an Utlary after Judgment in delivering him by his Writ of Priviledge which upon an Action afterwards brought against the Executors of the Sheriff and a Demurrer was resolved by the Judges to be legal And therefore Philip late Earl of Pembroke and Montgomery Lord Chamberlain of his late Majesties Houshold should not be blamed for causing in the yeer of our Lord one thousand six hundred thirty and seaven one Isaac VValter to
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
libertatis privilegij praedictorum laesionem manifestam to the prejudice of the rights of the Crown and violation of the liberty and priviledge aforesaid hujusmodi vijs modis quibus poterint praecanere libertatem privilegia sua praedicta manu tenere cupientes And that they were desirous by all the ways and means they could to hinder such doings so prejudicial unto them and were resolved to maintain the Liberties and Priviledges of the Crown And not be able to protect his Houshold and domestick Servants in whose daily service and continual attendance both our Kings and their Subjects were more concerned than they could be by any the service or attendance of the Officers or Clerks in the Court of Chancery Which the Lords in Parliament did so well understand to be a Right inherent and due unto Royal Majesty as in the three and fortieth year of the Reign of Queen Elizabeth they did in the Case of William Huggen one of the Queens Servants arrested upon an Execution send the Gentleman-Usher attending upon their House to the Prison of the Fleet to bring him before them and upon view of Precedents of some of their own Servants delivered though none of any the Kings or Queens did in conformity to the reason thereof cause the Plaintiff upon the Defendants promise to pay him to release him and the Under-Sheriff being committed to the Fleet was three days after upon his Petition discharged And in the first year of the Reign of King James The Earl of Suffolk Lord Chamberlain of the Kings House did procure Nicholas Reading one of his Majesties Servants arrested by an Execution at the Suit of Sir Edward Hales to be brought before the Lords in Parliament by a Writ of Habeas Corpus and so by the Plaintiffs consent released the Order mentioning that such an Arrest was contrary to the honor and priviledge of that Court. Or that not only the Judges of the superior Courts the Justices of Peace can as they have done it antiently and commonly imprison men for Contempts of them or their written Orders or verbal Commands without which they power could not Tueri Jurisdictionem uphold that Authority which the King had given them but the Constables of every Parish in London whose Offices and Authority at the first were saith the judicious and learned Lambard but as the fingers to the hands or body of the Constable of England a great Officer of the King and his Crown can in their Night-watches command better men than themselves to the Compters or London Prisons there to lodge the remainder of the night among the debauched or unruly sort of people calld Rats or Night-walkers but for angring his worship or not believing that he is a Prince of the Night the Kings Image and none of the smaller parcels of mortality and shall have so much connivence at his no seldom committed Follies as no other Habeas Corpus shall be granted to the injured person thn a submissive paying of his Fees of imprisonment and procuring himself as well as he can to be discharged by the greater discretion of the Lord Mayor or an Alderman before whom he is the next morning to be brought with his not to be discerned Fault or offences and if he should seek afterwards to be recompenced for such an affront is to expect as little favour as may be for himself and as much as may be for his adversary And that the King under whose Power and Authority they acted should not be able by his own immediate command or the Warrant of some of the great Officers of his Crown or Houshold to punish by imprisonment any contempts committed against himself and his soveraign power by the arresting of his domestick and houshold Servants without Licence who are neare unto his person and imployed in his hourly or daily service or attendance or that his power and Authority should not be efficacious or valid in his own case or immediate concernment and should be valid and sufficient to punish such as either contemned or abused his Justices and Servants extraordinary who are more remote from his person in the administration of his Justice As when Eustace de Parles and his brother were by King Edward the first in the one and twentieth year of his Reign committed to the Tower of London for abusing and striking in Westminster Hall William de Bereford one of his Justices of his Court of Common-Pleas And King Edward the third by his Justices and Authority punished the Bayliffs of Ipswich by the Forfeiture and Loss of their places seised the Liberties of the Town and delivered the Custody thereof to another during the Kings pleasure and made the Bayliffs of the Town to deliver in Court their Staves of Office for that they had suffered an unruly multitude to feast and revel with certain Malefactors condemned by the Justices of Assize and after their departure made a Mock game of them in sitting upon the Tribunal and Fining them and their Clerks Or that any should think it reasonable or no disservice of the King or his not to be incumbred Affairs to arrest any of his Houshold Servants without a Licence first obtained And shall at the same time decry or declaim against the Arresting of a Judge sitting in his delegated Court of Justice or travelling in the Circuit by and under the Kings Commission at the Suit of any private person or the Arresting and Imprisonment of an Admiral or Vice-Admiral going to Sea or a Commander or Governor of a Castle Fort or Garison upon the like occasion and think it reasonable that the King in reference to the Weal-publique in those his affairs and concernments should by priviledge protect and shelter them A right understanding whereof and of that which hath been before alleaged and the reasons supporting those Judgments of the not ignorant or unworthy but very learned grave and upright Judges in those former Ages and Times and of the Duties Honor and Respects which were and ought to be paid to the Soveraignty just and necessary means of Government assented unto by our Lawes and reasonable Customs of England and in praxi observantia junioris Aevi in the practise and course of Law in the succeeding Ages not denied by any positive or well interpreted Law may grant a Proeibition and give a Checque or Restraint to those opinions so of late hatch'd and hug'd against too many of the Actions of Authority in order to Government and the Weal-publique the necessity of preventing Evils before they happen or diverting abating or lessening them after they are happened and invite them to forsake their overmuch adoration of Sir Edware Cokes aforesaid Errors and believe Sir Thomas Ridley a Doctor of the civil Lawes and no stranger to our Common-Lawes who no longer ago than the beginning of the Reign of King James in his Book intituled A view of the Civil Ecclâ—siastical and Temporal
I could perceive trodden by any but Your Lordships most Humble Servant Fabian Philipps THE TABLE OR Contents of the Chapters THat there is a greater Honour due unto the Palace and House of the King Then unto any of the houses of his Subjects Chap. I. 4 That the Business and Affairs of the King about which any of his Servants or Subjects are imployed are more considerable and to be regarded then the Business and Affairs of any of the People Chap. II. 29 That the Kings Servants in ordinary are not to be denied a more than ordinary Priviledge or respect nor are to be compelled to appear by Arrest or otherwise in any Courts of Justice out of the Kings House without leave or Licence of the Lord Chamberlain or other the Officers of the Kings Houshold to whom it appertaineth first had and obteyned Chap. III. 38 That the Priviledges and Protections of the Kings Servants in ordinary by reason of his Service is and ought to be extended unto the Priviledged Parties Estate both real and Personal as well as unto their Persons Chap. IV. 244 That the Kings Servants whilst they are in his Service ought not to be Utlawed or Prosecuted in Order thereunto without leave or Licence first obteyned of the King or the great Officers of his most Honourable Houshold under whose several Jurisdictions they do Officiate Chap. V. 250 That the Kings established and delegated Courts of Justice to Administer Justice to his People are not to be any Bar or hindrance to his Servants in ordinary in their aforesaid Antient Just and Legal Rights and Priviledges Chap. VI. 289 That the King or the great Officers of his Houshold may punish those who do infringe his Servants Priviledges and that any of the Kings Servants in ordinary being Arrested without leave are not so in the Custody of the Law as they ought not to be released untill they do appear or give Bayl to appear and Answer the Action Chap. VII 310 That the aforesaid Priviledge of the Kings Servants in ordinary hath been legally imparted to such as were not the Kings Servants in ordinary but were imployed upon some Temporary and Casual Affairs abroad and out of the Kings House Chap. VIII 318 That the Kings granting Protections under the Great Seal of England to such as are his Servants in ordinary for their Persons Lands and Estates when especially imployed by him into the parts beyond the Seas or in England or any other of his Dominions out of his Palace or Virge thereof or unto such as are not his Domesticks or Servants in ordinary or extraordinary when they are sent or imployed upon some of his Negotiations Business or Affairs neither is or can be any Evidence or good Argument that such only and not the Kings Servants in ordinary who have no Protections under the Great Seal of England are to be Protected or Priviledged whilst they are busied in his Palace or about his Person Chap. IX 343 That our Kings some of which had more than his nâ—w Majesty hath have or had no greater number of Servants in Ordinary than is or hath been necessary for their Occasions Safety well being State Honour Magnificence and Majesty And that their Servants waiting in their Turns or Courses are not without leave or Licence as aforesaid to be Arrested in the Intervals of their waiting or Attendance Cap. X. 355 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 Chap. XI 365 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 with ut a remedie first Petitioned for in Parliament Chap. XII 375 That the Clergy of England in the height of their Priviledges Encouragement and Protection by the Papall overgrown Authority did in many cases lay aside their Thunderbolts and Power of Excommunications appeals to the Pope and obtaining his Interdictions of Kingdoms Churches and Parishes and take the milder modest and more reverential way of Petitioning our Kings in Parliaments rather than turn the rigors of their Canon or Ecclesiastical Laws or of the Laws of England against any of the Kings Officers or Servants Chap. XIII 389 That the Judges in former times did in their Courts and Proceedings of Law and Justice manifest their unwillingness to give or permit any obstruction to the Service of the King and Weal Publick Chap. XIV 392 That the Dukes Marquesses Count Palatines Earls Viscounts and Barons of England and the Bishops as Barons have and do enjoy their Priviledges and freedom from Arrests or Imprisonment of their Bodies in Civil and Personal Actions As Servants extraordinary and attendants upon the Person State and Majesty of the King in Order to his Government Weal Publick and safety of him and his People And not only as Peers abstracted from other of the Kings Ministers or Servants in Ordinary Chap. XV. 413 That many the like Priviledges and Praeheminences are and have been antiently by the Civil and Caesarean Laws and the Municipal Laws and Customs of many other Nations granted and allowed to the Nobility thereof Chap. XVI 445 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 as much and in some more than what our Kings Servants in Ordinary did or do now desire to enjoy Chap. XVII 466 That many of the People of England by the Grace and Favour of our Kings and Princes or along permission usâ—ge or prescription do enjoy and make use of very many Immunities Exemptions and Priviledges which have not had so great a Cause or Foundation as those which are now claimed by the Kings Servanes Chap. XVIII 489 That those many other Immunities and Priviledges have neither been abolished or so much as murmured at by those that have yeilded an Assent and Obedience thereunto although they have at some times and upon some Occasions received some Loss Damage or Inconveniences thereby Chap. XIX 494 That the Power and care of Justice and the distribution thereof is and hath been so Essential and Radical to Monarchy and the constitution of this Kingdom as our Kings of England have as well before as since the Conquest taken into their Cognisance divers Causes which their established Courts of Justice either could not remedie or wanted Power to determine have removed them from other Courts to their own Tribunals and propria authoritate caused Offenders for Treason or Felony to be Arrested and may upon Just and Legal Occasions respite or delay Justice Chap. XX. 503 That a care of the Honour and Reverence due unto the
the Martyr the drawing aside of the curtain of State and the dispute of the Kings power of committing any one for contempts against him or his Authority which every Justice of Peace and Master of a Company of Trade in London can be allowed to do by the peoples misunderstanding of the Arcana Imperii secrets of State and necessary rules of government an unhappy fancy and spirit of opposition so intoxicated many of them as they have believed it to be law and right reason that if the King will not so soon as they would have him give leave to Arrest any of his Servants the Law and his Courts of Justice are to do it that if the King should by such a way of prosecution be inconvenienced by the want of their service it is by his own default in making so ill a choice of men indebted to attend him or if they being so Arrested cannot perform their duty he is to provide such as may better do it and if the King should cause any to be committed that had Arrested any of his Servants without licence they were upon his Habâ—as Corpus to be bayled by the Judges of some of the Courts of Law at Westminster and left at liberty to go to Law with him if they could tell how or to incourage as many as would follow that evil example to misuse his Royal Prerogative which without any stretching or dilating of it to the very confines or uâ—most bounds of its regal Jurisdiction is legally warranted by the design and reason of publique good the preservation of every mans estate and property and the good at one time or in something or other of him that thinks himself the most delayed or injured in his humour or expectation for it ought to be every where reason and so acknowledged that as long as there is a King and Supreme Governour who is to take care of the universality of the people subjected born or protected under his government he is not to want the means wherewith to do it and that in order thereunto his service must needs be acknowledged to be for publique good and the exemptions and privileges belonging thereunto no less than a Salus populi the great concernment of the peoples peace protection welfare and happiness and should be the Suprema Lex that great Law in and by which the means of goveâ—nment and the Royal Prerogative was and is founded and established and that such a cause built and sustained by the rules of right reason and justice ought to be every where reason and justly entituled to that Axiom manente causa non tollitur effectus the cause alwayes remaining constant and unalterable the effects and operation naturally from thence arising are necessarily to follow and be allowed and that the cause of priviledge claimed by our Kings the cause and fountain of all exemptions and priviledges so largely given to many of their people should not in the case of their own Servants have its course or passage stopt or diverted When from that Spring and those causes which have fertilized and gladded the Vallies of our Israel have sprung and arisen those necessary priviledges which the Nobility Peers and Baronage of England have antiently enjoyed in their personal freedome from Arrests or Imprisonment of their bodies in Civil Actions Pleas or Controversies and from Common Process or any Utlaryes which might trouble them or their high Estates not only for the reason given in the 11th year of the Reign of King Henry the fourth by Hull or Hulls that in Actions of Debt or Trespass a Capias will not lye against an Earl or any of like Estate because it is to be intended that they have Assets and a great Estate in Lands whereby they may be summoned and brought to answer or as many misled by that opinion do and would yet understand it But principally CHAP. XV. That the Dukes Marquesses Count Palatines Earls Viscounts and Barons of England and the Bishops as Barons have and do enjoy their privileges and freedome from Arrests or imprisonment of their bodies in Civil and Personal Actions as Servants extraordinary and Attendants upon the Person State and Majesty of the King in order to his Government Weal Publick and Safety of him and his people and not only as Peers abstracted from other of the Kings Ministers or Servants in Ordinary IN regard of their service to their Prince and a not seldome personal attendance upon him and the honour and dignities thereunto allowed and appertaining to those Illustrious and high born Dukes Marquesses Earls Peers and Nobility who are accounted to be as extraordinary Servants not as the word Extraordinary hath been of late times misused by applying it unto those who were but quasi Servi scarcely Servants or but listed and put into the Rolls of the Kings Servants when they are neither known to him or ever were or intended to be in his actual Service and honourable Attendants of their Prince as well in times of Peace as emergencies of War and as Generals or Commanders of their Armies in times of War and therefore the Emperour Justinian in his Letter or Epistle to Narses a great General or Commander of his Army mentions Aulus Anduatius C. Tubero to be sub Narsetis Ducatu as Souldiers under the conduct of Narses making the word Ducatus which in after ages only signifyed and was applyed to a Dukedom then to denotate no more than an Army or Command only of it And the Latine word Dux since used for Duke was as Sir Henry Spelman well observeth antiently nomen officiale a name of Office or Dux delegatus vel praefectus exercitus postea feudale by reason of the Lands which were annexed to its honour by reason of that service afterwards honorarium meerly Titular or honoured with that Title in being heretofore his Chieftaine or Leader of an Army And so were the Marquesses in those antient times who were as Capitanei Generals or great Commanders in the Empire or kingdome and were as to that by reason of their honorary possessions partakers in some sort of the Royal Dignity Whereby to defend the Frontiers the Title and Military Office thereof being about the year 1008. after the Incarnation of our blessed Saviour by the Emperour Henry sirnamed Auceps of the house of Saxony instituted to defend some of the Frontiers of Germany against the Incursions of the Hungarians was so little known or respected in England about the Reign of King Richard the second as he having created Robert de Vere Earl of Oxford Marquess of Dublin in Ireland and afterwards in the 21th year of his Reign John Beaufort Earl of Somerset Marquess of Dorset which dignity being afterwards taken from him by the tempest and change of those times in the beginning of the Reign of King Henry the fourth and the Commons in Parliament in the fourth year of that Kings Reign petitioning that he might be