CHAP. VIII.

AS it was desired and thought fit, and neces∣sary to be communicated to such as were not the Kings Servants in Ordinary or his Dome∣sticks, but only imployed as extraordinaries upon some of his special affairs or occasions, which were but Temporary, and to that end it was requisite that some signification or notice should be given that they were so imployed, and that they should not be arrested, imprisoned or disturbed in it, but be protected from it, the like being also done when any of the Kings Servants in Ordinary where im∣ployed out of the Kings House or Pallace by their Writs of Protection under the great Seal of Eng∣land, for otherwise probably it would not have been known, that they were his Servants either ordinary or extraordinary, or what was their bu∣siness.

And therefore in the Register of Writs, a Book in the Statute of Westminster the second, made in the 13th year of the Reign of n K. Edward the first in the year of our Lord 1285, called the Re∣gister of the Chancery, and of great antiquity and authority in our Laws, and very well deserving the Page  319 respect is paid unto it, being but a Collection of Writs out of the publick Records made and gran∣ted under the Kings Great Seal, warranted either by the Common-Law, or grounded upon some Acts of Parliament, o Protections have been granted under the Great Seal of England, with a Supersedeas of all Actions and Suits against them, in the mean time, unto some that were sent into Forraign Parts, or but into the Marches of Scotland, or Wales, or in Comitativa, retinue of some Lord or Person of Honor employed thither in the Kings Service, or unto such probably as were none of the Kings Ser∣vants in Ordinary or Domestick, but as more fit persons were only sent as appeareth by the Writs, upon some special and not like to be long lasting occasions, with an exception only of certain Actions and Cases, as in Writs of Dower (for which Sir p Edward Coke giveth us the Reason) because the Demandant may have nothing else to live upon, in Quare Impedits, Quaere non Admisits, or Assizes of Darrein Presentment, for the danger of a lapse for not presenting within six months, in Assizes of Novel Disseisin, to restore the Demandant to his Freehold wrongfully entred upon, and not seldom gave their Protections quia moraturus, unto some Workmen, Engineers, or others imployed in the Fortification of some Castles or Fortress, sometimes but as far as the Marches of Wales, with a com∣mand that if they were incarcerati, or imprisoned, they should be forthwith released; and at o∣ther times upon his Protections granted quia profecturus, revoked his Protections because the Page  320 party desiring to be protected, did not go as he pretended upon the Kings message or business, or having finished the Kings business, q imployed himself upon his own, and upon better informa∣tion that he did continue his imployment in his service, revive it again; sometimes sent his Writ to the Justices not to allow his Protection, because the party protected did not go about the business upon which he was imployed; and at other times sent his Writ to the Sheriffs of London, to certifie him whether the party protected for a year did go in obsequium suum versus partes transmarinas in Co∣mitativa, &c. upon the Kings business in the com∣pany and attendance of A. B. (possibly some Envoy) (which makes it probable that the party protected was rather some Stranger, than any of the Kings Servants) and more likely to be in the cognisance of the Sheriffs of London, than of the King, or any of the Officers of his honoura∣ble Houshold, as may appear by the subsequent words of the Writ, which were, r an in Civi∣tate nostra London moretur propriis negotiis suis in∣tendendo, whether he remain in the City and fol∣loweth his own business: And not only granted such Protections, but as was in those times held also to be necessary and convenient, added a clause de non mole•tando, of not troubling the party whilst he was thus imployed in his service, homi∣nes, terras, &c. his Lands, Servants, &c. except or in regard of any of the aforesaid Pleas which were usually mentioned in the said Writ of Pro∣tection.

Page  321And if it were directed to the Sheriffs of Lon∣don, a clause by a rule of the Register was to be in∣serted, dum tamen idem,* so as the protected person (probably imployed in the victualing of a Town or Fort) do satisfie his Creditors for Victuals bought of them. And where the Pro∣tections appeared to be granted after the com∣mencement of the Action, did sometimes revoke them; but if it were for any that went in a Voyage that the King himself did, or other Voyages Royal, or on the Kings Messages for the business of the Realm, it was to be allowed and not revo∣ked; and the Kings Protections in that or any other nature, had the favour and allowance of di∣vers Acts of Parliament, either in the case of such as were not their Servants, or otherwise, and had such respect given unto them by the Law, and the Reverend Judges in Bractons time, as he saith, Cum s breve Domini Regis non in se contineat ve∣ritatem, in hoc sibi caveat Cancellarius, if the mat∣ter be not true, the Chancellor, or Lord Keeper of the Great Seal of England is to answer for it; and quando quis Essoniaverit de malo veniendi, quia in servitio Domini Regis admitti debet, Essonium & allocari & dies dari dum tamen warrantum ad ma∣num habet, cum de voluntate Domini Regis non sit disputandum.

And King Edward the third did in the 33th. year of his Reign, by an Act of Parliament de Pro∣tectionibus, concerning the repealing of Protecti∣ons t unduly granted, by his Writ directed to all his true and faithfull Subjects, now printed Page  322 amongst the Statutes and Acts of Parliament, and allowed the force and effect of an Act of Parlia∣ment, as many other of the Kings Mandates, Pre∣cepts or Writs antiently were, declare, that for as much as many did purchase his Protections falsly, affirming that they were out of the Realm, or within the four Seas in his service, did provide, That if their Adversaries would except or averre that they were within the four Seas, and out of the Kings service, in a place certain, so that they might have well come, and if it be proved against the De∣f•ndant, it should be a default; and if such Pro∣tection be on the Plaintiffs behalf, he should lose his Writ and be amerced unto the King; (which can signifie no less then that a Protection granted where the party is really and truly in the Kings service, should not be disallowed or refused) which the Commons of England were used so little to disgust, as that in the 47th. year of the Reign of that King, they did in u Parliament only Petition, that any having a Protection for serving in the Wars, and do thereof fail by one month, to the deceipt of the Kings people, such Protection to be void. To which the King only answered, Let the party grieved come into the Chancery and he shall have remedy. The Act of Parliament made in the first year of the w Reign of King Richard the second, ordained, that no Protection with a clause of Volumus, our will and pleasure is that he be not disturbed with any Pleas or Process, except Pleas of Dower, Quare Impedit, Assise of Novel Disseisin, last Presentation, and Attaint, Page  323 and Pleas or Actions brought before the Justices Itinerant, shall be allowed where the Action is for Victuals taken or bought upon the Voyage or Service whereof the Protection maketh mention, nor also in Pleas of Trespass, or of other Contract made before the date of the said Protection. The Statute of the 13th. year of the Reign of the aforesaid King, which was made for that many people, as well such as be not able to be retained in War, (for in those dayes x divers of the No∣bility and Gentry and their Servants, were ac∣customed to be retained by the King to serve in his Wars) as others, by the testimonial of the Go∣vernors of the Marches, Captains of Garrisons, Ad∣mirals, and others, did purcbase Protections with a clause of Volumus▪ or Quia profecturus, because he was going in the Kings service, after a Plea was com∣menced against them, whereby to delay the said Plea, and after do not go into the said service; ordained, That no Protection with a clause Quia profecturus, be allowed after the Suit commenced before the date of the Protection, if it be not in a Voyage that the King himself goeth, or other Voyages Royal, or in his Messages for the business of the Realm.

But saith that Act of Parliament, it is not the intention of this Statute but that the Protection with the clause Quia moraturus, because the party pro∣tected abideth in the Kings service, be allowed in all cases as it was before that time. And if any tarry in the Country without going to the service for which he was retained, over a convenient time after that he hath any Protection, or return from the same ser∣vice, Page  324 if the Chancellor be thereof duly informed, he shall repeal such Protection as it hath been used before that time. In the 9th. year of the Reign of King Henry the 5th. Protections were granted to them that were in the Kings service in y Normandy and France, or which should pass with him into France.

By an Act of Parliament made in the 14th. and 15th. years of the Reign of z King Edward the 4th. it was ordained▪ that the like Protections as were granted by an Act of Parliament made in the 9th. year of the Reign of King Henry the 5th. cap. 3. to such as were then in the Kings service in Normandy or France, or would pass with that war∣like King Henry the 5th. into France, should be observed and avail for all such as should pass over with him. By a Statute made in the 6th. year of the a Reign of King Henry the 6th. there was a rehearsal and confirmation made of the afore∣said Statute in the 9th. year of King Henry the 5th. touching Protections granted to those who were in Wars in Normandy or France, which extended it further then the preciser time of their present service. And by an Act of Parliament made in the 8th. year of the b Reign of that King, there was only to be excepted in all the Protections of such as should go with the King into France, Writs of Assise of Novel Disseisin. King Henry the 7th. in the 4th. year of his Reign, did by an Act of Parliament grant Protections c unto all which then were or after should be in the Kings ser∣vice in Britany, together with certain Immuni∣ties Page  325 granted to the Feoffees, Executors and Heirs of them which should dye in the service, (which was more than a personal protection:) And by ano∣ther Act of Parliament made in the 7th. year of his Reign did ordain, That every person that should be in the Kings wages beyond the Sea, or on the Sea, should have a Protection. By an Act of Parlia∣ment made in the 11th. year of the d Reign of the said King Henry the 7th. mentioning in the Preamble, That it is not reasonable, but against all Laws, reason and good conscience, that the Kings Subjects going with their Soveraign Lord in Wars, attending upon him in his person, or being in other places by his commandment within or without his Land, (as some of his menial Servants may possi∣bly) whilst he is absent from his Palace either in the Kingdom or without, any thing should lose or forfeit for doing their true duty and service of Alle∣giance; it was enacted, That no manner of person or persons whatsoever he or they be, that attend upon the King and Soveraign Lord of this Land for the time being in his person, and do him true and faith∣full Allegiance in the same, (which certainly his Houshold and menial Servants are understood to do) or be in other places by his commandment in his Wars within this Land or without, be convict or attainted of High Treason, nor of other offences for that cause by Act of Parliament, or otherwise by any Process of Law, whereby to lose or forfeit life, lands, possessions, or rents, goods, chattels, or any other things, but be for that deed utterly discharged of any vexation, trouble, or loss; and any Act or Process Page  326 of Law contrary thereunto to be void. And King Henry the 8th. did likewise by an Act of Parlia∣ment enact, That e they which were or should be in the Kings Wars beyond the Seas, or upon the Sea, should have a Protection of Quia profecturus, or moraturus, cum clausula volumus, as aforesaid.

Such or the like Protections being held to be so necessary in the former ages, when the people of England not enjoying under the Papal Tyranny so great an happiness and liberties as they have done since the Reformation, were so little of kin to the murmuring Israelites, as they troubled not the ears of their Kings or their Courts of Justice with complaints against Protections, when there was no deceit in the obtaining of them, or abuse in the use of them, when in the third year of the Reign of King John, a Protection was granted by him unto one f Peter Barton the son of Peter Barton, then living or residing in Poictou, parcel of his French Dominions, for his Goods and E∣state as well as for his person, as his Father had the day that he died; and commanded all his Bayliffs and Officers in that Country, to protect and defend th•m sicut servientem suum quousque sibi servierit, as his Servant for so long time as he should serve him. Robert de Ver, qui de licentia Regis peregre profecturus est in terram Hierusalem, habuit liter as patentes de pr•tectione sine clausula, duraturas per trienninm, had the Kings Protection for three years, without any clause or exception; and g Gerard de Rodes travelling to the same place, had a Protection with a clause, quod quietus Page  327 esset de secta Comitatuum & Hundredorum, & de omnibus placitis & quaerelis, exceptis placitis de Dote unde nihil habet, assisa Novae Disseisinae & Vltimae praesentationis Ecclesiarum, duraturas quamdiu idem Gerardus fuerit in peregrinatione praedicta, that he should not be molested with any Suits in the County Courts and Hundreds, and with any other Pleas and Actions, except Actions or Pleas of Dower, Assises of Novel Disseisin, and the last presentation unto Churches, to remain in force as long as the said Gerard should continue in his travels (or Pilgrimage) as aforesaid; and a Protection granted by King Edward the first, in the first year of his Reign, to Robert de Plessetis, sine clausula, without any clause or condition, to endure untill Easter then next following; and the like unto Hugh de Weston, who had the Kings li∣cense to travel to h Rome, to endure untill Michaelmass then next following; and King Ed∣ward the 4th. by vertue of his Kingly Prerogative, as the Writ and the Record declared, granted his Protection unto John Namby Gentleman, Execu∣tor of William White alias Namby, for i himself and his Servants, and their Lands and Estates, to endure for three years: very many of the Sub∣jects 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 volunta∣rily went unto the Holy Land so called for reco∣very of it, in such numbers as about the year of our Lord 1204. being in the k latter end of the Page  328 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 l un∣derstood 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 Scot∣land, 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 No∣bility 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 occa∣sions the credit and good will of the Common peo∣ple 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 Insurrecti∣ons, and had in the mean time no doubt Pro∣tections, and freedom from Suits and Arrests, whose Court Barons and Leets more then now Page  329 orderly kept, permitted not their Tenants disobe∣dience unto them or their Jurisdictions, or an en∣hance 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 He∣misphere, kept their courses, and great Hospita∣lities, addicted themselves to actions of greatness, goodness, charity and munificence, and their nu∣merous Tenants depending upon them, returned them submissive and humble obedience, a reve∣rential 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 Land∣lords 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 them∣selves at costly rates so great and o•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 Cloth∣ing and Exportation far exceeded our Importa∣tion, 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 rea∣son of 600 Monasteries and Religious Houses, and Page  330 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 Lon∣don as there have been of latter times, so many Ta∣verns, Cooks, or Trades of pride and luxury, to entice the Nobility and Gentry into debts and ex∣pences; when the rates and prices of their Wares and Commodities, honester made, and of Victuals and Houshold provisions, were limited and bound∣ed 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 Com∣binations, 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 con∣tracts were upon distrust of performance sworn and bound up by Oath, would ratione s•andali sometimes take occasion to draw into their Courts the cognisance of Debts, and Excommunicate them, untill they were about the Reign of King Page  331 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 Chri∣stian Burial, and the power of making last Wills and Testaments was denyed unto them, the per∣sonal 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 Re∣cords, 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 pru∣dence 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 busi∣ness, taught the people to obey rather then dis∣pute that necessary part of his Prerogative, which Page  332 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 the 17th. year of her Reign, by her Writ under the Great Seal of England, directed to that m learned and judicious Lawyer Sir Nicholas Bacon Knight, Lord Keeper of it, (who allowed and sealed it) and the Lord Treasurer of England, and her Justices, Barons of the Exchequer, Sheriffs, Mayors, Bayliffs, &c. signifie, that she had taken into her Protection for three years Martin Frobisher Gent. (probably the eminent Sea-Cap∣tain) and his ordinary Servants, whom she had imployed in her affairs beyond the Seas, and therefore by vertue of her Royal Prerogative, which she would not have disputed, commanded every of them, that during the saie Martin Fro∣bishers absence, and before his departure, and after his return, during the said three years, they should not suffer him or his Servants in ordinary to be arrested, attached or outlawed, or to be molested or disquieted in their Persons, Goods, Chattels, Lands or Estates; and that the Justices in their several Courts should supersede and discharge all Actions, Plaints and Suits tending thereunto, and not proceed thereupon; and may give us to un∣derstand, that howsoever in Warhams Case in the 20th. year of her Reign, before her Judges of her Bench, her Protection signifying that she would not have her Prerogative disputed, n was with∣out debating as the Writ commanded not allowed, Page  333 but silently laid by, possibly by reason of variance or incertainty of time, or upon some defect of form or words in the Writ, or in regard that it mentioned not whether the party desiring to be protected was o profecturus, or moraturus, to go or abide in the Queens service, or because the Writ of Pro∣tection came too late, or the nature of the Action, or some matter in the Pleading or the Issue, which was omitted by the Reporter, would not admit it; yet the disallowance of one Protection, is no ar∣gument or enough to conclude that no Protection was or ought to be allowed, when so many do ap∣pear in the Records and Year-Books of our Laws to have been allowed: For certainly if that great Queen had the year before 1588. and that almost unavoidable ruining storm of the Spanish Armado, which threatned the destruction of her and this Nation, given her Protection Royal to Sir Thomas Gresham Knight, that Prince of Merchants, for the securing of his person and Estate from arrest or troubles, when for her service and the safeguard and defence of the Nation, he had stretched that grand and all the Credit which he had in Foreign parts, to dreyn the Banks thereof, and to borrow and take up at Interest so great a part of the mo∣neys thereof, as he prevented the King of Spain therein, and so disappointed him of money, as he could no sooner send that formidable Navy against England, which he designed to have sent the year before, whereby she was not suddenly attaqued, but had time to provide a gallant resistance; and whether the clause of commanding her Preroga∣tive Page  334 therein not to be disputed, had been inserted or not, (which in such a secret and important affair ought not to have been made publick, either in such a Writ or in a Court of Justice) every man that had not sued a Bill of Divorce against his reason, common sense and understanding, might have believed such a Protection in such an exigent to have been as legal as it would have been for publique good and necessary.

And although the Reverend Judge Fitzherbert was of opinion, that a Protection of the King p quia in servitio Regis, because the party to whom it was granted was in the service of the King, or the like, is not to be allowed for a longer time than a year and a day, being supposed to be a competent time for the dispatch of such an emer∣gent or extraordinary imployment of the Kings as was pretended, (which no Act of Parliament hath yet limited, there being a possibility of a longer time of the imployment, either as profectu∣rus or moraturus, in the going or tarrying, when the time of the dispatch of business cannot be cir∣cumscribed, especially in Foreign parts, whither and whence in longer or shorter Voyages the winds as well as other occasions and accidents are to be a••ended) and that in the 39th. year of the Reign of King Henry the 6th. a Protection was not allowed, because the Defendant having ob∣tained it in regard that he was in servitio Regis, and sent to Rome; Pleas of Dower and Quare Im∣pedit were not as they used to be, and ought by Law to be excepted in the Writ of Protection, Page  335 yet Mayle one of the Justices of the Court of Common Pleas then said, that in a q Voyage Royal, or in business concerning the Realm, or in an Embassage or the like, a man should be pro∣tected; and a Voyage Royal, saith Fitzherbert, is where the r King goeth to War, or his Lieutenant or Deputy Lieutenant; and that a man is to be protected when he is in the Kings service for guard of the West Marches of England towards Scotland; and in the 21th. year of the Reign of King Henry the 6th. a Protection was allowed after the Nisi prius, or Issue tryed; and s sometimes for the Plaintiff, as well as the Te∣nant or Defendant, as in the 14th. year of the Reign of King Edward the 4th. Essoines of the Kings service being likewise ordinarily allowed by the Judges, upon allegation or proof of the Kings service at the time of casting or praying for them, there being an ordinary course of Essoin∣ing allowed communi jure, of common right, to such as are not in servitio Regis, or the Kings Ser∣vants, as de malo lecti, for sickness, &c. and are now in many Actions allowed of course, without any proof or question made thereof: And those kind of Protections were so effectual and respected in the 21th. year of the Reign of King Edward the 3d. as in an Action where the Queen (who was to enjoy some greater Priviledges then others of the Subjects) was Plaintiff, such a t Pro∣tection was allowed; and it is not without some warrant or reason of Law observable, that the Protections and Essoines which were quia in ser∣vitio Page  336 Regis, in regard that the person to be pro∣tected was in the Kings service, were most com∣monly quia profecturus, because he was to go or abide upon some imployment for the King, do mention per praeceptum, or in obsequio Domini Regis, that they were sent by the Kings command, or upon his service; which in case of ordinary or domestick service, needs not to be so much men∣tioned by the words per praeceptum, or in obsequio Regis, the word obsequium being by the Civil Law only understood to be reverentia & honoris exhi∣bitio erga parentes & patronos, an honour and re∣verence of Freemen to their Parents and Patrons, contradistinct to the duty of work or labour in Servants; that such men were commonly Strangers, and none of the Kings Houshold Ser∣vants; and that in those early dayes and times of Popery, when there was such an entercourse be∣twixt England and Rome, and our Kings had so much ado to guard the Rights and Priviledges of themselves and their people, from the Papal at∣tempts and usurpations, and many of our Kings had in their possession Normandy, Aquitain, and in other Provinces of France divers Forts and Castles, they might well have occasions of send∣ing many that were not of the Houshold, which were better to be spared then those of whom they had daily use of occasion of service; and that where the Protections were quia moraturus, it was not seldom mentioned to be about fortifying a Castle or Town, or providing Victuals for them or an Army, and may rather be deemed to be none Page  337 of the Houshold, for that in the Register of Writs some Protections are revoked by the King, because they pretended to go when they were commanded, but did not, or followed their own occasions and affairs, not the Kings; which cannot be easily un∣derstood of the Kings Servants in ordinary, who in those dayes would not be willing to absent them∣selves from such profitable and eminent services and imployments.

And u Sir Edward Coke in his greatest aver∣sion to the just Rights and Regalities of the Crown, is positive, that besides the Kings gene∣ral Protection of his loyal Subjects, there is a par∣ticular Protection of two sorts, the one to give a man an Immunity and freedom from all Actions or Suits, the second for the safety of his person, Servants and Goods, Lands and Tenements, whereof he is lawfully possessed, from violence, unlawfull molestation or wrong; the first is of right, and by Law, and the second sort are all of Grace, saving one; and that the Kings Protection so as it be under the Great Seal of England, as well moraturus as profecturus, upon any mans going or abiding in the Kings service, must be regularly to some place out of the Realm of England, and that in some Actions, as in a Scire facias, upon Reco∣veries, Fines, Judgements, &c. In a Writ upon the Statute of Labourers, (although by the Statute made in the second year of the w Reign of King Edward the 6th. cap. 15. and the Statute made in the 5th. year of the Reign of Queen Elizabeth, cap. 4. no Protection is to be allowed) and in a Page  338 Writ of Deceit, (notwithstanding the rule of Law is, that fraudi aut dolo Lex non patrocinatur, Deceit is not to be favoured) a Protection doth lye: And that the Kings Protections are to be brought to the Courts of Justice where the Action is laid, be they Courts of Record or not of Re∣cord, and not to the Sheriff, or any other Officer or Minister; and are allowable not only unto men of full age, but within age, and for Coun∣tesses and women, as nutrix, lotrix, or obstetrix, Nurses of the Kings Children, the Midwife to the Queen, or Laundresses of the King or Queen. Protections do lye and have been allowed, where Essoines do not; and denyeth not but a man having a Protection Quia moraturus, and return∣ing from beyond Sea only to provide Ammuni∣tion, Habiliments of War, Victuals, or other ne∣cessaries for the Kings service, and be arrested or imprisoned, he shall enjoy the benefit of his Pro∣tection; and denyeth not but that some Protecti∣ons Quia nolumus, because we will not that he should be molested, may be granted by the King of grace, and gives his opinion that where it is pro negotiis regni, for the concern or business of the Kingdom, jura publica ante ferenda privatis, private mens actions are to give way or yield to the publick; and private mens Actions and Suits must be suspended for a convenient time, where it is pro bono publico, the Weal-publick, as certainly the necessary attendance of his Servants in ordi∣nary, either for his honour, conveniency, health or safety, do relate unto and concern the peoples Page  339 good and safety, the protection of their lives and estates, and the well being of themselves and their posterity, and all that can be dear or near unto them.

And such kind of Protections of Servants in or∣dinary or extraordinary, may be as consistent with Law or Reason, as a Writ of Rege incon•ulto, com∣manding a forbearance of proceedings in the case of one of the Kings Servants, arrested or prosecu∣ted at Law without leave first obtained, should not be awarded, as the Law and practice thereof is well contented to do it, where the King is in Reversion, or hath any Title to the thing or mat∣ter in demand, which may be done at the prayer or request of the party concerned, or of the Kings Councel, or ex officio Curiae, by the Court it self; and as well as the Justices allowed a Supersede as to stay an Assise, where the Defendant was in the service of the King in his Wars beyond the Seas; or to stay Suits against divers Tenants in Northum∣berland, upon Writs of Cessavit, to forfeit their Lands for non-payment of their Rents, and per∣forming their services to their Lords, in regard of the then Wars with the x Scots, untill the War should be ended; or to save a default of the Te∣nant or Defendant, and to adjourn the Suit or Action to another day; or where one is convict of redisseisin, and y taken or arrested by a Capias, the King commanded by his Privy Seal that no Process should issue, and if any should issue, that they z should surcease, and the Writ was thereupon staid.

Page  340For surely had not such or the like Protections been heretofore accounted to have been as legal as they were warrantable and usual, there would not have been an Act of Parliament made in the 5th. year of the a Reign of King Edward the 3d. to forbid the allowance of them in Writs of At∣taint against Jurors, or in Writs of Novel Disseisin, and is the first Act of Parliament which did in any case absolutely deny the allowance of the Kings Protection; imitated and followed by the Act of Parliament made in the 13th. year of the b Reign of King Richard the 2d. to prohibit Protections in the case where upon a default of the particular Te∣nant in a real Action, he in the reversion is to be re∣ceived to plead in a Suit commenced against him; and the Act of Parliament and Penal Law made in the 23th. year of the c Reign of King Henry the 6th. against such of the Kings Purveyors as did take Provisions from the people without paying for them, and many an Act of Parliament and Penal Law from thence unto this present.

Which Protections or Tabulae •utelares, have been by Law, and may be granted for a reasonable time unto any of the Kings Debtors, untill the Kings Debt be paid, with liberty given to their Creditors to proceed in the mean time, but not to take out any Writs of Execution; or to some that in unruly and troublesome times obtained their salva Guardia, or Protection, propter quosdam Ae∣mulos, where force or d incivilities were feared, or where upon sudden and unexpected Embargoes laid by a Foreign Prince, some English Merchants Page  341 Estate had been destroyed, or had their Ships or Goods taken at Sea by the Subjects of another Prince, and only desired a Protection from the many times Unchristian-like fury of their Cre∣ditors, untill by Letters of Reprisal or otherwise, they might enable themselves to make them a just satisfaction; and did but in the mean time, like the innocent Doves, fly to the shelter of the Rock of their Soveraign, from the cruelty of the pur∣suing Hawk; or when any imployed in the ser∣vice of the King, or for the good of the Nation, although he be at the present neither protected or priviledged, was by feigned or malicious Actions sought to be hindred or endamaged upon some reason or necessity; and in all or either of those kinds, have also been sparingly granted by King James, and King Charles the Martyr, unto some few particular men, as to Philip Burlamachi, and Pompeio Calandrini, Natives and Merchants of Italy, denizen'd and resident in England, who had imployed in their services not only at home, but in the parts beyond the Seas, in the important affairs of ayding the Kings Allyes, all the Estate and Credit which they had or could procure; some if not many of which sort of Protections, have not been nor are unusual in our Neighbour Countreys, and in Brabant, adversus Creditorum multi juges, vexationes & assultus, to protect a Debtor against the cruelties, assaults and vexati∣ons of some unmercifull Creditors, quoties vel in∣clementia maris vel infortunio graviori demersi ad certum tempus solvere non possunt, when by some Page  340 〈1 page duplicate〉 Page  341 〈1 page duplicate〉 Page  342 great misfortunes by Sea or at Land, they are not at the present able to pay; whereof Hubert de Loyens in his Treatise e Curia Brabantiae & munere Cancellarii ejusdem, of the Court of Bra∣bant, and the Office of the Chancellor of that Province, gives the reason, quoniam Reipublica in∣terest subditos non depauperari, sicut nec Principem, cujus cum illis annexa causa est, because it concerns the Weal-publick not to suffer the people, nor likewise the Prince, whose good or ill is annexed to theirs, to be impoverished; by which the poor Debtor obtains some respite, and time either to pay or pacifie their enraged Creditors: a custom and usage conveyed to them by Antiquity, and de∣duced from the wisdom of the Grecians and Ro∣mans, in their well ordered Governments and Commonwealths.

But those who might rest well satisfied with the wisdom as well as practice of our Laws, are so unwilling to be undeceived, and to quit their stubborn ignorance and affected errors, as they will like some Garrison willing to maintain a Fort, and hold out as long as they can, when they can no longer defend it, seek and hope to march out with better advantages in relinquishing or parting with it, then they could by keeping of it, and therefore will be willing to allow unto Stran∣gers, or those which the King imployeth upon Foreign or Extraordinary occasions, and are not his Menial or Domestick Servants, the Priviledges aforesaid, so as they may exclude those that are immediately attending upon his Page  343 service, or the greater concernments of his person.