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.

CAP. IV.

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.

FOr if we may, as we ought, believe antiqui∣ty, and its many unquestionable authorities, and our Records, which as to matters of fact, judgements, pleas, writs, therein allowed, Re∣cords of Parliament, and the Grants of our Kings by their Letters Patents under the Great Seal of England, being the Publique Faith of the King∣dome, from and under which, most of the peo∣ples Real Estates and Priviledges, have had their originals and establishments (not the falsely called Publique Faith, which afterwards proved to be Bankrupt, and was until then the Medea or Witch of the late incomparably wicked Re∣bellion) were alwayes so impartial and credited, as not to have their truth so much as suspected. That Priviledge was not only indulged and al∣lowed to their Persons, but to their Lands and Estate also, as will plainly appear by the course and Custome of the Law in former ages, and

amongst many others not here enumerated, was not understood to have been either unusual or il∣legal in that which was granted to Sir John Staunton Knight.

By King Edward the 3d. in the 29th. year of his Raign, in these words, Omnibus ad quos, &c. Salutem d 1.1 considerantes grata & laudabilia ob∣sequia tam nobis quam Isabellae Reginae Angliae Matris nostrae charissimae, per dilectum & fidelem nostrum Johannem-de Staunton, impensa & pro∣inde. Volentes personam ipsius Johannis (suis condignis meritis exigentibus) honorare ipsum Jo∣hannem▪ Camerae nostrae militem & familiarem quoad vixerit tam tempore quo extra curiam no∣stram absens quam tempore, quo ibidem presens fue∣rit duximus retinendum. Ac de gratia nostra spe∣ciali ipsum Johannem, Terras, Tenementa, Bona, & Catalla sua, quaecunque ac universos legales te∣nentes suos omnium & singulorum maneriorum suo∣rum in protectionem & defensionem nostram susce∣pimus specialem. The King to all unto whom these presents shall come sendeth greeting, We considering the well accepted and laudable Ser∣vices, done as well unto us, as our dear Mother Isabel Queen of England, by our trusty John de Staunton, and being therefore willing to honour him according to his deserts, have made the said John a Knight of our Chamber, and one of our Servants in Ordinary whilst he lives, as well when he shall be absent as present. And of our especial grace, have taken into our special pro∣tection the said John de Staunton, and all his Lands, Tenements, Goods, and Chatels, and

likewise all his Tenants of his Manors; Omnibus & singulis nostris fidelibus tenore presentium firmiter inhibentes ne eisdem Johanni, Terris, Tenementis, Bonis, seu Catallis suis, aut legalibus tenentibus ma∣neriorum praedictorum malum molestiam prisas, aut aliud impedimentum inferunt vel faciunt indebite vel injuste, & si quis eis injuriatum vel forissactum fuerit, id eis debite reformari & corrigi faciunt; Streightly charging and prohibiting all our good Subjects, that they do not unduly or unjustly en∣damage or molest the said John de Staunton, his Lands, Tenements, Goods, Chatels, or his said Tenants, and if any shall injure or wrong them therein, that you do duly cause it to be reformed and amended.

And the Writs of Protection which our Kings of England have sometimes granted unto some which were imployed in their Service upon some special motives and reasons, and were not his maenial or domestick Servants, having been very often, if not alwayes, made and granted not on∣ly to protect the persons of such e 1.2 as were not the Kings Servants in Ordinary, but specially imployed upon extraordinary occasions, but de non molestando res terras tenementa homines (which in the legal acceptation, antiently signi∣fied their Tenants, as well as their Maenial or Houshold Servants, especially when instead of Rents, or for some abatements made of them, they Plowed and Sowed their Landlords Land, Reaped their Corn, and did many other Services belonging to Husbandry) bona Catalla & posses∣siones

suas, not to molest, trouble, or permit them to be troubled in their Estates Real and Perso∣nal, Lands, Tenements, Servants, Tenants, Goods, Chatels, and Possessions, and do agree with those priviledges which our Neighbour Princes of Europe, and many other Nations, have allowed their Servants.

And such or the like Protections, are, and have been, an antient allowed priviledge, not only to Foreign Embassadors, but their Assistants, Ser∣vants, Goods, and Chatels, in the Dominions and Territories of Kings and Princes to whom they are sent, and where they are resident. Et sane quae potest tanta vis esse privilegii personae Le∣gatorum, si privilegium & istis accessionibus non conceditur, saith Albericus Gentilis; And truly to what purpose will the priviledge of f 1.3 Em∣bassadors be or enure, if the Protection of their Estates, as well as their persons, should not attend their employments; for where their persons may not be summoned, cited, or inforced to lay by, or forsake his Service in the attendance upon the process of any of his Subordinate Courts of Justice, & there cannot by the rules of Common Justice, and our Magna Charta, that great piece of right reason and Justice, be any Judgement had or ob∣tained without appearane against them, or any Execution thereupon against their Goods or Estate. And it being so just and necessary for the Plaintiffs to demand Leave or Licence for the com∣pelling of them to appear to their actions, it will be as necessary & becoming certainly to demand a

second Leave or Licence to take out process of Execution upon any judgement obtained, when as in the ordinaay course of our Laws, and the intendment thereof, every Plaintiff, as the Re∣cords of our Courts of Justice will abundantly testifie, is (as it were by Petition) to pray and ask leave to take out his Writ of Execution; for that as the Judges may in their inferior Orbes sometimes find cause to Arrest or stay for a time some Judgements and Executions, so certainly, and much more in the Superior, may the urgen∣cy of some present and necessary Service of the King, and the Weal Publique (the Kings Ser∣vice and the publique being as inseparable as his Person and Authority, Body Politique and Cor∣poral) require some pause, or a Licence first to be demanded.

Such requisites and privileges drawn from the same Fountain of priviledges and reason, being no otherwise in their effects then as to the joynt priviledges of Persons and Estates, then the pri∣viledges of Parliament, and the Protections al∣lowed g 1.4 unto the Peerage and Members of the House of Commons, and their Maenial Servants, in order to that publick affair and service of the King, who doth not limit those favours only to their Persons, and the personal service of their Servants attending upon them, but do for that time comprehend and secure their Estates both Real and Personal, and will not willingly per∣mit so much as the minds of any of the Mem∣bers of h 1.5 Parliament to be vexed by any

disturbance of process, or legal proceedings, whilst they are employed and intended by Law to be only busied in those weighty occasions, which they would be, if the Real and Personal Estates of themselves, or Servants which atten∣ded upon them, were molested and troubled; and therefore King Henry the 8th. in his Speech to the Judges in the Case of his Servant Ferrers, and a Member of the House of Commons in Par∣liament in the 33th. year of his Raign said, that his Learned Councel at Law had inform'd him, that all Acts and Process coming out of any Infe∣riour Courts, must for the time cease and give place to the Parliament as the highest of Courts, and that whatsoever Offence or Injury is in Par∣liament time offered to the meanest Member of the House of Commons, is to be adjudged as done both against the King and the whole Court of Parliament; which was then assented unto by all the Judges of England then present, saith i 1.6 Mr. Crompton, and confirmed by divers rea∣sons.

And well may it be so, when it is and hath been not unusual for the Judges of the Court of Kings Bench or Common Pleas (which do stand upon a less but legal Foundation) to free or unattach Goods attached in the City of Lond. by their course or custom of Process of a man that had occasion to attend either of those Courts k 1.7 concerning some Suit or Suits there depending, as to procure a Capias utlegatum against one, &c. and declare it to be a priviledge or liberty belonging unto those

Courts in their several Jurisdictions to protect such persons in veniendo versus eandem Curiam ibidem morando, & inde ad propria redeundo absque arrestatione Corporum, Equorum, Bonorum, seu Catallorum, in comming to the said Court or Courts there abiding▪ or returning homewards without any Arrest of their Bodies, Horses, Goods, and Chatels by any process out of any Inferiour Court; Et habere debeant salvum & securum con∣ductum sub protectione & defensione l 1.8 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 3d. entituled a Writ of Trespass, contra protectionem Regis, for mo∣lesting or troubling a man protected by the King, directed to a Sheriff to attach the Defen∣dant, in these words of the commanding or mandatory part thereof, Ostensur quare cum suscepimus in protectionem & defensionem nostram praedictum A. homines terras m 1.9 res reditus, & omnes possessiones suas, omnibus & singulis inhiben∣tes, ne quis eis injuriam, molestiam, damnum inferret, aut gravame•• 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 & servi∣entes 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 plegio∣rum, &c. To shew cause, whereas when we took into our Protection the aforesaid A. his Lands, Goods, Tenants, and all that he possessed, pro∣hibiting 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 Pri∣viledged 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 n 1.10 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 asto∣nish'd, his thoughts racked or tormented with cares and apprehensions of damage, losses, dan∣gers, or disgraces, and cannot rest or follow his business as otherwise he would do, but be look∣ing 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 ordi∣nary, where he is specially imployed in his ser∣vice, 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 o 1.11 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, see∣ing 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.

Notes

• d 1.1

  Rot. Pat. 29 E. 3. m. 27.
• e 1.2

  Register of Writs, tit. Protection 22.23.26.
• f 1.3

  Albericus Gentilis de legationibus, lib. 2. ca. 15. of the Kings Servants.
• g 1.4

  Elsing in his book of the antient and present manner of holding Par∣liaments.
• h 1.5

  Broke 6.24.29. Fitz-Herbert N. B. 42. Cromptons Jurisdiction of Courts. Dyer 287.42. Coke 4th. part In∣stitutes 227.
• i 1.6

  Crompton Jurisdiction of Courts, tit. Parl.
• k 1.7

  Rastals vet. lib. in∣truc. tit. cer∣ciorar. sur. brev. de pri∣viledge, 8.
• l 1.8

  Ibidem tit. Privil. 9.440.
• m 1.9

  Register of Writs 121. tit. de inquirend. de transgressio∣ne.
• n 1.10

  Job 9. v. 1.
• o 1.11

  Nehemiah c. 1. v. 2. & 3. c. 2. v. 2. & 6.