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
in comming to the said Court or Courts there abiding or returning homewards without any Arrest of their Bodies Horses Goods and Chatels by any process out of any Inferiour Court Et habere debeant salvum securum conductum sub protectione defensione Regis Progenitorum suorum and in that respect were to have asafe conduct of the King his Progenitors and to be in their Protection and it was in former and less factious times not unusual to have such or the like Protections of our Kings for the Lands and Goods of the persons protected as well as for their persons to be allowed in our Courts of Justice witness the Writ to be found in the Register before or much about the 11th year of the Raign of King Edward the 3 d. entituled a Writ of Trespass contra protectionem Regis for molesting or troubling a man protected by the King directed to a Sheriff to attach the Defendant in these words of the commanding or mandatory part thereof Ostensur quare cum suscepimus in protectionem defensionem nostram praedictum A. homines terras res reditus omnes possessiones suas omnibus singulis inhibentes ne quis eis injuriam molestiam damnum inferret aut gravameâ— idem B. Bona Catalla praedicti A. dum sub protectione nostra sic fuit ad valentiam centum Solidorum apud H. inventa vi armis cepit asportavit in homines servientes suos insultum fecit c. per quod servitia sua amisit alia enormia c. ad grave dampnum c. contra protectionem nostram praedictam contra pacem nostram habeas ibi nota plegiorum c. To shew cause whereas when we took into our Protection the aforesaid A. his Lands Goods Tenants and all that he possessed prohibiting all and singular whatsoever that no man do or cause to be done unto him any injury damage or trouble the said B· the Goods and Chatels of the said A. whilst he was under our Protection to the value of five pounds at H. by force and arms did take and carry away and made an assault upon his Tenants and Servants c. whereby he lost their Services c. and did other injuries unto him c. to his great damage against our Protection and Peace and have you there at Westminster the names of his pledges or sureties c. With good reason therefore and much more in the case of the Kings Servants when it would be of a small avail for any man to be Priviledged or Protected in his person whilst he is employed in the Kings Sercice when all his Lands shall be seized or extended his Goods and Personal Estate taken away his Wife Children and Family starved undone or ruined and like Job stripped of all he had may be at liberty to complain of his misery and calamity and hear an impatient Wife blame him for being so careful to serve a King that would not or could not protect him And as little it would be for the good or dispatch of the Kings affairs when it cannot be so well done as otherwise it would by a man whose soul is grieved the faculties of his mind and understanding weakned and astonish'd his thoughts racked or tormented with cares and apprehensions of damage losses dangers or disgraces and cannot rest or follow his business as otherwise he would do but be looking homeward either to provide some remedy or comfort as well as he can for his sorrowfull Wife and Children to which many times his presence is so requisite as nothing can help or relieve them or himself without it and that surely which serves for a Reason or Justice in the case of a person not the Kings Servant in ordinary where he is specially imployed in his service should be as necessary or reasonable or rather more in the case of his Servant in ordinary who in such a trouble and sadness as appeared in the face of the good Nehemiah the Cup-bearer of King Artaxerxes when he heard of the great affliction and reproach of his Brethren at the distressed Jerusalem must when he shall he asked as Nehemiah was Why is thy countenance sad seeing thou art not sick it is nothing else but sorrow of heart be inforced to declare his sorrows to his Soveraign who when he shall be informed of the cause of it must be constrained to do as that tender-hearted King did to give such a troubled Servant leave to depart to his distracted Estate and in the mean time want his service CAP. V. That the Kings Servants whilst they are in his service ought not to be Vtlawed or prosecuted in order thereunto without leave or license first obtained of the King or the Great Officers of his most Hâ—nourable Houshâ—ld under whose several Jurisdictions they do officiate ANd to as little or no purpose would that antient and just Priviledge of the Kings Servants in ordinary not to be arrested troubled or imprisoned without leave first obtained profit them if whilst they shall be busied in attending the person of the King or some other of his affairs they may be sued to an Utlary and forfeiture of all their Goods and Personal Estate put out of the protection of the King and his Laws and thrust under the many damages inconveniences and incapacities which do way-lay and fall upon Utlawed persons and will be hugely contradictory to the right reason and intention of our Laws neither can any Sheriff retorn upon an Original Writ retornable in the Court of Common Pleas to which and no other Court except in the Court of Kings Bench in Actions of Trespass or upon the Case importing a breach of the Peace in all Civil Actions the prosecution of Writs to the Utlary doth only and properly appertain or upon a Bill of Middlesex a great encroacher upon the Rights and Jurisdiction of the Court of Common Pleas and a greater upon the Rights and Liberties of the people or an Action entred in the Sheriffs Courts in the City of London or of any other City or Corporation that any of the Kings Servants who were not wont to be either Beggars or Runagates nichil habet nec est inventus the later of which however now disused was antiently never omitted but as a companion in separable upon such Retorns of Writs went together with the former when as the Offices and Places in the Kings Court were not usually so poor or unprofitable as that they should be worth nothing or those that enjoyed them so willing to leave them as to run away from them And then certainly if by Law any such Retorns cannot in the case of the Kings Servants in ordinary be justly or legally made nor any Process of Capias or to arrest executed against them without a leave or license first obtained nor any Utlary without a Capias after that an alias Capias and afterwards a pluries Capias
many great and high priviledges as not to be examined in an action of debt upon account but their Attorneys are permitted to be examined upon Oath for them not to be amerced or taxed but by their Peers secundum modum delicti according to the nature of their offence Et hoc per Barones de Scaccario vel coram ipso Rege and in such cases before only the Barons of the Exchequer or before the King himself if a Parkership be granted to an Earl without words to make a deputy he may do it by his Servants if a Duke Earle or any other of the Baronage do chase or hunt in any of the Kings Parkes the law for conveniency and in respect of his dignity will permit him so many attendants as shall be requisite to the dignity of his estate are not to be summoned to a Court Leet or Shire Reeves Turn or take their Oathes of Allegiance as all other Males above the age of 12 are to do neither they nor their Wives are where they cast an Esseine to make Oath as those which are under the degree of Barons ought to do of the truth of the cause alledged for their Essoine but are only to find pledges and if upon that Essoine allowed a default be made at the day appointed amertiandi sunt Plegii the pledges but not the Earles or Barons are to be amerced are exempted by the Seatute of the 5 th of Eliz. cap. 1. from taking the Oath of Supremacy for that the Queen as that Statute saith was well assured of the Faith of the Temporal Lords shall have the benefit of their Clergy in all cases but Murder and Poysoning are not to be put to the Rack or tortured nor to suffer death even in cases of Treason by the shamefull death of Hanging Drawing and affixing their Heads and Quarters in some publick places or as at Naples they execute common persons for such most execrable offences by beheading them and putting their Heads upon the Market-place and hanging afterwards the naked Corps in some pubblick place by one of their Toes but are by the favour and warrant of the King only beheaded and their bodies with their heads laid by permitted to be decently buried Shall not be tryed by any Ecclesiastical Courts but per Pares by their Peers for Non-conformity to Common-Prayer shall have Chaplains according to their several degrees and limitations of number who may hold two Benefices with cure When the Sheriff of a County is commanded to raise the posse comitatus the power of a County he is not to command the personal service of the Baronage or Nobility a Baron or a Noble man is not to pray that a Coroner may receive his accusation or to prove and approve his accusation or appeal in every point or to be disabled for want thereof When the King by Writ of Summons to Parliament Scire Facias or his Letters missive shall send for any of the Arch-bishops Bishops Earls or Barons to appear before him or give their attendance they may in their going or returning kill a Deer or two in any of his Forrests Chases and Parkes and carry them away a Capias ad satisfaciend lieth not against a Peer or Baron of England a Baron shall not be impannelled of a common Jury although it be for the service of the Country no Attachment for a contempt in not appearing or answering in Chancery lyeth against them their Lands parcel of their Earldoms Baronies or Honors being not to be contributary to the wages of Knights of the Shire or County wherein those Lands do lie are in cases of Felony or Treason to be tryed only by their Peers and their Wives are by a Statute made in the 20 th year of King Henry the 6 th to enjoy the like priviledge upon the Surety of the Peace prayed against a Baron he is not to be arrested by warrant from a Justice and upon a Supplicavit out of the Chancery shall give no surety but promise only upon his Honor A Defendant shall not have a day of Grace given him against a Lord of Parliament because he is supposed to attend the affairs of the publick a Baron shall not answer upon Oath to a Bill in Chancery or Equity but upon protestation of Honor nor in a verdict upon a Tryal by Peers for saith Crompton the Law makes so much account of the word of a Peer of the Realm when he speaks upon his honor though it be in Case or upon Tryal for life as it shall be believed a Baron shall not have a writ of Subpaena directed unto him but a Letter under the Hand and Seal of the Lord Chancellor or Lord Keeper of the great Seal of England is not to be arrested or outlawed for Debt or any other personal action not criminal there being two Reasons saith our Law why the person of a Lord should not be arrested or outlawed for Debt or Trespass the one in respect of his dignity and the other in respect that the law presumes that they have sufficient lands and tenements by which they may be distreined in the Long Writ called the Prerogative Writ issuing out of the Exchequer to distreine the lands and goods of the Kings debtors or in default thereof to attach their bodies there is an express exception of Magnatum dominorum dominarum of the Nobility and their Ladies and the Office of Count or Earl was of great trust and confidence for two purposes the first ad consulendum Regi tempore pacis to councel assist and advise the King for the Weale publick in time of peace and the second ad defendendum Regem patriam tempore belli to defend their King and Country in time of War and by their power prowess and valour guard the Realm both which are the proper business of the Barons and the other Nobility as well as the Earls and in action of Debt Detinue or Trespass or in any other action reall or personal brought or commenced for or against any of the Nobility two Knights shall be impannelled on the Jury with other men of worth and by a late necessary and honorable care of the late Lord Chancellor and Master of the Rolls no Original Writ against any of the Nobility in a subsequent Term is permitted to be antedated or to take benefit of a precedent as is now commonly used against such as are not of the Peerage or Nobility Mr. Selden giving us the Rule that tenere de Rege in Capite per Baroniam to hold of the King in Capite and to have lands holden by Barony and to be a Baron are one and the same thing and Synonymies and not a few of our antient Writers and Memorialls have understood the word Baronia to signifie an Earldom or the lands appertaining thereunto which may make it to be more then conjectural that it