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. VI.

That the Kings established and delegated Courts of Justice, to administer Justice to his People, are not to be any bar or hinderance to his Servants in Ordinary, in their aforesaid antient, just and le∣gal Priviledges and Rights, or that the Messen∣gers of his Majesties Chamber, may not be sent to summon or detein in custody the Offenders therein, or that any of his servants being arrested without licence, are so in the custody of the Law, as they cannot before apparance or bayl to the Action be delivered.

WHich will not at all advantage their hopes or purposes, if they shall besides, what hath been already proved aswell, as alledged, give Ad∣mittance unto a more weighed consideration,p that delegatio ad causas non intelligitur ad futuras, a Com∣mission or Authority entrusted for some special, or determinate matters, is not to be understood to ex∣tend unto all that in the administration of Justice may afterwards happen, that in the Court of Ex∣chequer, the Barons are and should be the speci∣al Ministers, and Supervisors of the Kings Reve∣nue, subject to his Legal Mandates and disposing power, that the Court of Common-Pleas, being a Court erected, and continued by our Kings for the dispatch of Justice, and ease of their Subjects and People in Common-Pleas or Actions, wherein the King his Crown and Dignity are not imme∣diately

concerned, do only hold Pleas and have Jurisdiction and Cognisance, ratione Mandati by reason of the Kings Original Writs, Command or Commission, issuing almost in every Action from himself out of his High Court of Chancery, that the Justices of the Kings-Bench, are, ad placita coram Rege tenenda assignati, assigned as coadjutors to the King, to hear & determine Pleas supposed by Law to be heard before himself in that Court, and by the ancient stile & title of their Records, said to be, de consilio Regis, of the Kings Councel, & that in the High Court of Chancery, the King, by the Lord Chan∣cellor, or Lord Keeper of the Great Seal of England, as his Substitute or Deputy, as some of our Judges in the 9th year of the Reign of King James,d have believed them to be in that supereminent and su∣perintendant Court of and over all his other Courts of Justice, commands his Sheriffs (who are sworn to execute his Writs, and not to prejudice his Rights) to execute their Writs directed unto them in his Name and under his Seal, doth pro∣vide and give remedies in all emergencies of Law and Justice, where the Supreme and Legal Authority, is implored or prayed in ayd or assi∣stance. And that where a Delegated Power or Jurisdiction is granted by the King (as not only the Lawes of many other Nations, but our Bracton and Fleta, men not meanly learned in the antient Laws and Customes of England, as well as in the civil Laws have adjudged) he doth not exuere se∣de potestate, so grant away that Jurisdiction as to exclude himself from all power, and not be able

upon just and legal Occasions to resume it, or in∣termeddle in some part thereof, when a Lord of a Mannor, though he hath by a Patent or Com∣mission granted to his Steward for life, the power or jurisdictions of keeping his Courts, assessing of Fines and the like matters appurtenant thereunto is not debarr'd, when a just occasion shal either ne∣cessitate, or invite him thereunto from his personal assessing of Fines, or other Acts belonging unto the Court, or that power & authority, which he should have over his Tenants, & that where the Liberty of a Court Baron appurtenant to the Grant of a Man∣nor with the jurisdiction of Sake or Soke, holding of Pleas, and punishment of Offenders is granted by the King, or allowed to any man and his heirs by Custome or Prescription, the King is not de∣barred upon any grievance or complaint of any Tenant of the Manor, to command Justice to be done unto him, by his Writs of Right, Close or Patent, and where a Leet being a more large or greater Jurisdiction hath been granted to a man and his heirs to seize and grant it to another for not rightly observing the order of Law therein, as for not erecting a Pillory, making of a Clerk of the Market, and the like or altogether disusing of it, and where liberties of retorna Brevum, execu∣ting & returning Writs in a certain Precinct or Li∣berty, have been granted to a man & his Heirs, com∣mon practice and course of Law & its Process may inform us, that the King hath notwithstanding such a power & superintendency of Justice inherent in him, over all the Courts of Justice, high or

low in the Kingdome, as upon the Sheriffs re∣torn quod mandavit Ballivo libertatis, that he made his Warrant to the Bayliff of such a Liberty to arrest such a Defendant, and that the Bayliff nul∣lam sibi dedit responsionem, had made him no re∣torn nor answer, he may thereupon by his Ju∣stices, cause a Writ to be made to the Sheriff, com∣manding him, quod non omittat propter aliquam li∣bertatem Ballivi libertatis, &c. quin capiat, that he do not omit to enter into the said Bayliffs liber∣ty, and arrest the Defendant, and may also when a Defendant is outlawed, cause at the instance of the Plaintiff, a Capias Vtlegat. Writ to be made to take & arrest the utlawed person, with a non omittas prop∣ter aliquam libertatem, power and authority to en∣ter into any Liberty under the name of his Attor∣ney General as an Officer intrusted with the ma∣king of the said Writs of Capias Vtlegatum, and that Offices either granted by the King for term of Life, or in Fee or Fee-Tayle are forfeitable by a Misuser or non user, by not executing that part of the Kings Justice committed to the care and trust of the Officers thereof.

rAnd so necessary was the Kings Supreme Au∣thority heretofore esteemed to be in the execution and administration of Justice as in the Case be∣tween the Prior of Durham and the Bishop of Dur∣ham, in the 34th year of the Reign of King Edward the first, where amongst other things an informa∣tion was brought in the Kings-Bench, against the Bishop, for that he had imprisoned the Kings Of∣ficers or Messengers; for bringing Writs into his

Liberty, to the prejudice as he thought thereof, and that the Bishop had said that nullam delibera∣tionem de eisdem faceret, sed dixit quod ceteros per ipsos castigaret ne de cetero literas Domini Regis in∣fra Episcopatum suum portarent in Lesionem Episc••∣patus ejusdem, he would not release them but would chastise them or any other, which hereafter should bring any of the Kings Letters (or Writs within his Bishoprick, to the prejudice of the Liberties thereof. And in the entring up and giving the Judgment upon that Information and Plea, saith the Record, Quia idem Episcopus cum libertatem praedictam a Corona exeuntem & Dependentem ha∣beat per factum Regis in hoc minister Domini Regis est ad ea quae ad Regale pertinent infra eandem liber∣tatem loco ipsius Regis modo debito conservanda & exe∣quenda. Ita quod omnibus & singulis ibidem justi∣tiam exhibere, & ipsi Regi ut Domino suo & manda∣tis parere debeat prout tenetur licet proficua & ex∣pletia inde provenientia ad usum proprium per factum praedictum percipiatur, in regard that when the Bi∣shop had the liberty aforesaid by the Kings Grant or Charter from the Crown and depending there∣upon, he is in that as a Servant or Minister of the Kings, concerning those things which do belong unto the Kings Regality, within the Liberty a∣foresaid, to execute and preserve it in a due man∣ner for, and on the behalf of the King; so as there he is bound to do Justice to all men, and to obey the King and his Commands, as his Lord and So∣veraign, although he do by the Kings Grant or

Charter, take and receive the profit arising and coming thereby.

Wherein the Judges and Sages of the Law, as in those Ancient Times they did not unfrequently in matters of great concernment, have given us the reason of their Judgment in these words, Cum potestas Regia per totum Regnum tam infra liberta∣tes praedictas quam extra se extendant videtur Cu∣riae, & toti Consilio Domini Regis quod hujusmodi im∣prisonamenta facta de hiis qui capti fuerunt occasione quod brevia Domini Regis infra libertatem praedictam tulerint simul cum advocatione & acceptatione facti. Et etiam dictis quae idem Episcopus dixit de Castigati∣one illorum qui brevia Regis extunc infra libertatem suam port••rent manifeste perpetrata fuerunt, when as the power and authority of the King, doth ex∣tend it self through all the Kingdome, as well within Liberties as without, it seemed to the Court and all the Kings Counsel, that such imprison∣ments made of those which brought the Kings Writs within the Liberty aforesaid, the Bishops justifying and avowing of the Fact and the Words which the Bishop said, That he would punish all such as should bring any Writs to be executed in his Liberty, were plainly proved, Et propterea ad inobedientiam & exhaereditationem Coronae & ad diminutionem Dominii & potestatis Regalis, Ideo consideratum est quod idem Episcopus libertatem prae∣dictam cujus occasione temerariam sibi assumpsit au∣dacim praedicta gravamina injurias & excessus prae∣dictos perpetrandi & dicendi toto tempore suo amittat Cum in eo quo quis deliquit sit de Jure puniendus.

Et eadem libertas Capiatur in manus Domini Regis Et Nih••lominus corpus praedicti Episcopi capiatur, Wherefore, because it tended to disobedience and a disherison of the Crown and diminution of the Kings Power and Authority, It was adjudged, that the Bishop for his rash presumption and boldness, and for committing the aforesaid wrongs and in∣juries, should forfeit his Liberty aforesaid, for that every man is to be punished according to the na∣ture of his offence: And it was ordered, That the Liberty should be seized and taken into the Kings hands, and that the Body of the Bishop notwith∣standing should be taken into Custody.

For the Kings Justice, to which his Coronation Oath is annexed, is inseparable from his Person, & so fixed to his Diadem and Regal Authority, as it is not to be absolutely or any more then conditional∣ly deputed and intrusted to any other, or other∣wise then with a reserve of the last Appeal, and his Superiority, and therefore King Edward the first, in some of his Writs, Commissions or Pre∣cepts, saith, that he (but not his Judges) was De••itor Justitiae, so a Debtor to Justice,s as not to de∣ny it to any of his People complaining of the want of it, and ad nos pertinet, the care thereof belongeth to the King, and to that end appointed his high Court of Chancery, and his Chancellor, or Lord Keeper of the Great Seal of England, and required all the Officers & Clerks of that Court, to take care that pro defectu Justitiae nullus recedat a Cancella∣ria sine Remedio,t no man for want of Justice do go away from the Chancery destitute of remedy;

from whence also lyes an Appeal to the King him∣self in Parliament: and in the Case of Sir William Thorpe Chief Justice of England, in the 24th year of the Reign of King Edward•• the third, being put out of his place for Bribery and Extortion, it was in the Sentence or Judgment given against him, said that Sacramentum Domini Regis quod erga Po∣pulum habuit custodiendum ••regit maliciose,u false & Rebelliter quantum, in ipso fuit, he had falsly, malitiously and traiterously, as much as in him lay broke or violated the Kings Coronation Oath, which demonstrates, that although he had at the same time violated his own Oath made unto the King, when he was admitted into his Office or Place, yet his fault was the greater in breaking the Kings Oath, and that part of his Justice with which he was trusted.

For the Grants of the Judges Places by the King durante bene placito, or quamdiu se bene gesserint, during the Kings pleasure, or as long as they do wel behave themselves, the Kings Commissions of Oyer & Terminer. Et Gaola deliberanda, of Gaol Delive∣ry, and to hear and determine Causes in their Cir∣cuits, their Oathes, (besides their Oathes of Alle∣giance and Supremacy, taken at their admittance into their Places) prescribed and directed in the 18th year of the reign of King Edward the third, and administred by the Lord Chancellor, or Lord Keepers of the Great Seal of England, for the time being,x That they the King and his People in the Office of Justice, shall not counsel or assent to any thing that may turn unto his damage, shall take no Fee or Robes

of any but the King himself, nor execute any Letters from him contrary to the Law, but certifie him and his Councel thereof, and shal procure the profit of the King and his Crown in all things, that they may rea∣sonably do the same, & in an Act of Parliament, made in the 20th year of the Reign of that King, they are expresly mentioned to be,y Deputed by the King to do Law and Right according to the usage of the Realm, the Kings Writs directed unto them, stiling them no otherwise then Justitiariis suis, and those Courts the Kings Courts, the acknowledgment of the Judges themselves, in the Reign of Queen E∣lizabeth,z and their readiness to obey all her law∣ful commands, in the Case of Cavendish, and that of Sir Edward Coke, that the Judges are of the Kings Councel for proceedings in course of Justice their assisting the Lord Chancellor, or Lord Keep∣er of the Great Seal of England, upon request or sending for some of them out of their own Courts into the Chancery,a their attending upon the King in his House of Peers in Parliament, to assist and advise in matters of Law there debated, when re∣quired, but not with any power of Vote or deci∣sive Judgment, their often meetings out of their Courts & altogether, upon any b of the Kings com∣mands, or references in causes difficult by Petition or Appeal to the King, and their Opinions hum∣bly certified thereupon, and attending upon the King and his Councel upon matters doubtful, wherein the ayde and advice of the Regal Autho∣rity was required, and whether their Patents or Commissions be durante bene placito, or quam diu

se bene gesserint, during the Kings pleasure, or as long as they shall well behave themselves, are void, per demise le Roy, by the death of the King that granted their Patents or Commissions, and to be renewed at the plea∣sure of his Successor, may abundantly evidence that they may not claim or justly be beleived to be independant Soveraign, absolute or without an Appeal to their King and Soveraign who granteth amongst many other Offices in the said Courts, the Office and Place of Warden of the Fleet by the Name of the Keeper of the Kings Pallace at Westminster, aad the Office thereby to attend by him or his Deputy, the Courts of Chancery, Common-Pleas and Exchequer, and keep in safe Custody the Prisoners committed by them, when all the Writs and Process of those Courts, are is∣sued under his Name and Seal, and all but the Chancery, (which are honoured by his own Teste) are under the several Testes or Subscriptions, as the Law intendeth of the Chief Justices or Judges thereof together with the Exemplifications of Fines, Recoveries, Verdicts and other Records in the Court of Common-Pleas, and the Court of Kings-Bench, and in their several and di∣stinct Jurisdictions, are subjected unto and de∣pendant upon the Regal Authority, Crown and Dignity.

And cannot be otherwise understood to be, when our Kings have sometimes fined Judges for Ex∣tortion or Bribery as King Edward the first, did

Sir Ralph de Hengham, and diverse other Judges in the 16th year of his Reign, & when the Judges in the ••aid Courts, cannot ex officio, pardon or dis∣charge, a fine or punishment imposed or inflicted by them upon Offenders, nor without his Writ of Error, amend or correct Errors, committed by them∣selves after the Term ended, wherein they were committed, & are if they exceed their bounds subject by his Writ & punishment of Praemunire to a forfei∣ture of all their Lands, Goods & Estate, & of their Lands in Fee-Simple or for Life, & to have their Bo∣dies imprisoned at the will of the King & to be out of his Protection, and when he as he pleaseth com∣mandeth the Rolls and Records of the Courts of Chancery, Kings-Bench and Common-Pleas, to be brought into his Treasury, or the Tower of London for safety, adjourneth those Courts, upon occasion of Pestilence or other reason of State, or Warre, as King Edward the first, did to York, where they con∣tinued for some years after, & that the Judges are by Office of Court to stay & surcease in many things, where they do perceive the King to be concerned either in point of profit or other c concernment, un∣till they have advised with the Kings Serjeants, or Councel learned in the Law:: when the Writs of Prohibition frequently granted by the Court of Common-Pleas or Kings-Bench in his name, do signifie, that he hath haute Justice, power and authority over those, and the inferior Courts of Justice, and by his Supreme Au∣thority, doth by his Legal Rescripts and Man∣dates issuing out of his High Court of Chancery

upon any defects in his Subordinate Courts, for want of power and authority conso∣nant or agreeable to the rules of right reason and equity, moderate the rigors of his Laws, correct Errors, and provide fitting remedies for all man∣ner of Contingencies or Disorders, happening in the course execution or manage of his Laws or Justice, testified by his Injunctions out of the Chan∣cery, to stay the rigors and proceedings in the Courts of Common-Law, Commissions of Trail Baston more rightly ottroy le Baston, granted by King Edward the first, to inquire of and punish misdemeanours, riots, extortions, &c. which the Courts of Justice, then in being, had cognisance of, & might have upon complaint punished & redres∣sed, & many other Commissions of that kind, made out by that & other of our Kings, with Commissions of Assise & Association, cum multis aliis, or the like, the Writs of Rege in consulto not to proceed in mat∣ters concerning his own particular, without his be∣ing first consulted▪ de Attornato d languidi recipien∣do, to admit an Attorney for one that is sick, Writs of A••••aint, against Jurors falsly swearing in their Verdicts, Writs de A••sisa continuanda▪ to conti∣nue the pr••••••••dings upon an Assise, Audita que∣rela, to relieve one that is oppressed by some Judg∣ment, Statute or Recognisance, e Writs de Certio∣ra••i de ten••re Indictamenti▪ to be certified of the Tenor of an Indictment, & de Vtlagaria of an Utlary, f de tenore pedis Finis, of the Tenor of the Foot of a Fine, mittendo tenoremg Assise in E∣v••••entiam, to send the Tenor of a Writ of Assise

into the Chancery to be from thence transmitted by a Copy for Evidence into the Court of Exche∣quer, Writs quod Justitiarii procedant ad captionem Assise, impowring the Justices of Assise to pro∣cede in the taking of an Assise and his Commissi∣ons frequently granted in some special cases, as Dedimus potestatem, impowring the Judges or o∣thers to take the acknowledgements of Fines, with many other kinds of Commissions, a posse Comitatus ad vim Laicam amovendam, to remove a force, where a Parson or Minister is to be inducted into a Church or Benefice, & Commissions granted ob lites dirimendas, to compose contentious suites of Law, where the poverty of one of the parties is not able to endure them; and the granting of a priviledge by some of our antient Kings to the Bishop and Citizens of new Sarum or Salisbury, that the Iudges of Assize or Itinerants should in their cir∣cuits hold the Pleas of the Crown at that Town or City which King Edward the first did h by his Writ or Mandates allow or cause to be observed; and many more which might be here instanced, which with the Laws and practice thereof, and the reasonable customes of England do every where and abundantly evidence, that the King doth not intrust his Courts of Justice, or the Judges thereof with all his Regal power, and all that with which he is himself invested in his politique capacity, or hath so totally conveyed it unto them, as to make i them thereby the only dispensers of his justice, but that the appeal or dernier ressort from all his Courts of Iustice, is and resides in the King, being the ulti∣mate

supreme Magistrate, as from the inferiour Courts of Iustice in the Counties or Cities, to the Superiour Courts of Iustice at Westminster-hall, from the Court of Common-Pleas by Writ of Er∣ror to the Court (k) called the Kings-Bench, from that Court to the Parliament: And as to some matters of Law fit to be tryed by action at Law, from the Chancery unto the Kings-Bench or Courts of Common-Pleas, or Exchequer, re∣serving the equity when what was done there shall be returned and certified, and even from the Par∣liament it self, when Petitions there nepending could not, in regard of their important affairs, be dispatched to the high Court of Chancery,l and that appeals are made to the King in his high Court of Chancery from the Admiralty Court, when as the process and proceedings are in the Name and under the Seal of the Lord Admiral, and from the Prerogative Court of the Archbishop of Canterbury for proving of Wills, and granting of Administration when the Process and proceed∣ings are not in the Kings name, but in the name and under the Seal of that Arch-bishop.

So as the Gentlemen of the long Robe, who in the Reign of King Charles the Martyr argued a∣gainst the Kings Prerogative for the just liberties of the people of England, in the case of the Ha∣beas Corpora's, when they affirmed the meaning of the Statute made in the third year of the Reign of King m Edward the first, where there was an Exception of such not to be Baylable as were com∣mitted by the command of the King, or of his

Justices, to be, that the Kings command was to be understood of his commands by his Writs or Courts of justice, might have remembred, that in former times his Authority by word of mouth, or in things done in his presence (in matters just and legal, not contradicting the established rules, cu∣stomes and courses of his Courts of Justice, and the power and authority wherewith our Kings have intrusted them) was accompted to be as va∣lid, if not more than any thing done in his Courts of Justice, witness that notable record and plead∣ing aforesaid betwixt the Prior and Bishop of Durham in the 34th. year of the Reign of that, by his own and his Fathers troubles, largely experienced King Edward the first (which was not long after the making of that Statute, con∣cerning such as were to be bayled or not to be bayl∣ed) where it was said, and not denyed to be Law, quod Ordinatio, (meaning an award or something acknowledged in the presence of the King) in praesentia Regis facta & per ipsum nRegem affirmata majorem vini habere debet quam finis in Curia sua co∣ram justitiariis suis levatus, that any Ordinance or acknowledgment made in the Kings presence, and by him affirmed, was to be more credited, and to have a greater force then a Fine levied before his Justices in his Courts of Justice, which may be a good Foundation and Warrant, for several a∣greements and Covenants made betwixt private persons, and ratified by the King under his Great Seal of England by inspeximus and confirmations by his allowance and being witness thereunto as

that of Rorger Mortimer Lord of Wigmore, with Robert de Vere Earl of Oxford, for the Honor and Earldome of Oxf••rd, and the great Estate and Revenue••belonging thereunto, forfeited by the said Earl in taking part with the Barons against King Henry the third, and many others which might be instanced, and are plentifully to be found in many Agreements and Covenants made betwixt Abbots and Priors and their Covents, and divers of the English Nobility and great men mention∣ed in Master Dugdales first and second Tomes or Parts of his Monasticon Anglicanum. oFor it was resolved in Easter Term in the fourth year of the raign of Queen Elizabeth, by the then Lord Chief Justice of the Court of Common-Pleas, the Lord Chief Baron and Whiddon Browne and Corbet Ju∣stices Carus, the Queens Serjeant, and Gerrard her Attorney General, upon a question put unto them, by the Lord Keeper of the Great Seal of England, that in case of Piracy or other the like crimes, the Queen might in the intervals or va∣cancy of a Lord Keeper of the pGreat Seal of Eng∣land, by a necessity of doing Justice without a Commission granted unto others to do it, punish such offenders, although the Statute made in the 28th year of the raign of qKing Henry the 8th Ca. 15th doth direct Piracy to be tryed by Commissi∣on. And it was allowed to be Law, in a Case put by King James,r that where an Affray or Assault was made by any in the Kings presence, the King himself might commit or command the party of∣fending to prison, which may surely upon some

emergent or particular occasions admit him to a just intermedling therein, for it cannot be denied, but King Henry the 3d. hath sometimes sate a∣mongst his Judges or Barons in the Court of Ex∣chequer,r and we may believe those dictates of reason which are to be found in the Civil Law when it saith that, Jus superioritatis jurisdictionis Regis, non potest ab inferioribus dominis jurisdictio∣nem habentes contra Principem, praescribi quia quae sunt in subjectionis data impraescriptibilia. The right of Superiority of Jurisdiction cannot by any inferior Jurisdictions be prescribed against the Prince, for that those things which were granted or given in signe of subjection are impraescriptible, Posset enim si hoc fieret paulatim, collabi Imperium & redderentur subditi Acephali, for if that should be suffered, the Dominion or Empire of Kings and Princes, would by little and little so moulder and wast away, as the Subjects would be more then Subjects and as men without a head. Et cum omnes jurisdictiones habeant vim a Regia permissione tanquam radij a Sole fieri non potest ut remanente ju∣risdictione non agnoscatur Sol unde dependet.s And when all Jurisdictions doe receive their force and vigour from the Kings permission, as the Beams or Rayes doe their Lustre from the Sun; it cannot be but that as long as the Jurisdiction remaineth, the Sun on which it dependeth should be acknow∣ledged. Quomodo etiam poterit quis dicere praeva∣lere jurisdicttiones concessas a principe, contra an∣thoritatem principis cum haec potestas annexa Regio diademati est & innata ei videtur: For how can a∣any

one affirme that any Jurisdiction granted by the Prince can be used or prevaile against his au∣thority,t when he may at his pleasure for just and legall Causes alter, diminish, or revoke them; it being a power innate and annexed to his Royal Di∣ademe▪ Saith that Civilis prudentia, those excel∣lent rules of government which are ro be found in the Cesarean or Civill Law. And there can be no power saith a late learned Author where there is not a power to exercise it, for in France saith the learned Charles, Loyseau le dernier ressort de Justice, est tellement un droict de Soverainete que mesme en Commun language est appelle Soverainete, the last re∣sort or appeal for Justice is so much esteemed to be a right of Soveraignty,x as in common or vulgar speech it is called Soveraignty. And where the King is by our Lawes not denied to be the Lex viva & Lex loquens, the living and speaking Law, the Civill Law saith, Rex solus judicat de causa a jure non diffinita, the King is the only Judge in such Causes where the Law hath not already de∣fined or determined them:x And Bracton hath these words, in dubiis & obscuris, vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda Interpretatio & voluntas cum eius sit Interpretare cujus est condere, in matters doubtfull and obscure, or if any word shall contein or seem to beare a double signification, the Kings will and Interpre∣tation is to be attended when as he that makes a Law is and ought to be the fittest Interpreter, and Britton saith,y that the Kings Jurisdiction is supe∣rior to all the Jurisdictions of the Realm, and

according to Bracton is Autor juris unde jura nas∣cuntur, the Author of the Law,z and from him all Laws are derived, Omnes sub eo & ipse, sub nullo nisi tantum sub Deo parem autem non habet in Regno suo, quia sic amitteret praeceptum,a all his people are subject unto him, and he under none but God only, hath none equall unto him in his Kingdom, for if he had; he would loose his power of Command or Authority: and in another plaee of his book,b repeating that Opinion & well founded Doctrine saith. Parem autem habere non debet, nec multo fortius superiorem maxime in justitia exhibenda, that he ought not to have an equall, nor which is more any superior, especially in the Administra∣tion of Justice, which made the Judges in the 13th year of the Reign of King James, rightly stile him the fountain of Justice.c

And this dernier ressort or appeal hath been so necessary an Assistant to our Laws and Courts of Justices, as the reverend Judges thereof have not seldome been constrained to pray in ayd of it, and therefore a Marginall (d) Note in an old Sta∣thanis Abridgment, hath this remarque that in Hillary Term in the 13th yeer of King Henry the 7th, Cheeseman being under Sheriff of Middle∣sex, and having arrested un Cutpurse en le Sale de Westminister, a Cutpurse in Westminister-Hall, hastement veign un Fog & fut Serjeant Porter, le Roy A donques le Roy eant e a Westminister & prist le dit Cutpurse del vic en le Sale Sur que le vic lui complaint al Fineux Chief Justice & mand un des Marschalls ovesque le mace pour le dit Por∣ter

qui don respons quil ne voil vener al request dast des Tipstaves Sur que le Chief Justice alast al Chanc & monstra le matter & le Chanc mand soon Serjeant d' Armes pour liu & il respond a liu quil conust lui pour Sergeant nostre Seigneur le Roy & quil voil aler oues{que} lui & donques il veign & le Cheife Justice command le vic de liu arrest quant il vei & issint il fit & il a lui fit rescous surque le dit Justice alast al Roy & monstre le matter & le Roy command le dit Fog d' obier le Justice & de vener a le Court de lui submitter a le ley issint il fit & fut mis a son fine & troue pleg de fine faciend, whereupon one Fog Ser∣jeant Porter of the King, the King being then in his House or Pallace of Westminister, came ha∣stily and took away from the Sheriff, being then in the Hall the said Cutpurse, whereof the Sheriff complaining to Fineux Chief Justice of the Court of Kings-B••nch, he sent one of the Marshalls with his Tipstaffe for the said Porter, who answered, that he would not come at the request of any of the Tipstaves, whereupon the Chief Justice went unto the Chancellor and shewed him the matter, and the Chancellor sending his Serjeant at Armes, for him, he answered him, that he knew him to be the Kings Serjeant at Armes, and that he would goe with him, and being come, the Chief Justice commanded the Sheriff to arrest him when he saw him, who did arrest him, but he rescued him∣self, and thereupon the Chief Justice went unto the King and shewed him the matter and the King commanded the said Fog to obey the said Justice and to go unto the Court, and submit him∣self

unto the Law, which he did, and was put to his fine gave sureties to pay it.

Which proofs and arguments, touching the subordination of the Judges or their Courts of Ju∣stice, are not nor ever were intended for the reve∣rend Judges and Sages of the Law, or the Students, Professors and Practisers thereof, whose learning and Judgments neither scrupled or needed it, but unto those vulgar and mechanick busie headed and unquiet part of the People, qui nesciunt se ignorare, will not own any ignorance, when they are most ignorant, but will be sure to dislike every thing which they do not understand, because they take their measures by the shortlines of their vulgar take and incomprehensive capacities, which makes them to be so restless and unsatisfied in their mi∣stakings, and so lincked and wedded unto them, & I had not been so large in clearing that particular (which unto some may seem more then requisite) but that it may justly be feared that those opinions, or impressions if not dis••odged and fully convinced, may as those long agoe condemned Heresies and Errors in the Church, did in our late distractions and distempers rise up again under the pretence of new notions and gain, a kind of Succession too like a perpetuity.

And therefore every man may without any the Incumbrances of doubts or controversies, be assured.

Notes

• p

  Bart. l. cum furiosus F. de Jud.
• d

  Coke 9. re∣lat. Sir George Rey∣nells Case. Vide Book of Oathes.
• r

  Mich. 34 E. 1. incipi∣en. rot. 1••3 coram Rege & Consilio videlicet in Banco Regis.
• s

  Register of Writs 7, 15, 23, 34▪ b. & 36. b. 37 & 39 b.
• t

  13 E. 1. ea▪ 24.
• u

  Coke 3 parte Insti∣tutes 223 & ro. Pat. 24 E. 3. part. 3. m. 24. in Dorso.
• x

  18 E. y. 20 E. 3▪ ca. 1.
• y

  20 E. ca. 1.
• z

  Andersons Reports sect. 201. in Ca∣vendishes case, Cokes 3 parte▪ Inst••∣stutes ca. 54. tit. Praemis∣nire.
• a

  3 & 4 Eliz. 22.
• b

  Dier Mich. 34 Eliz. 25 Jenkins Reports of Cases refer∣red to all the Judges Ayres contoa Allanson in 3 Car. 1. & ubi{que} inter legum Au∣thores.
• Samuel Daniel Hi∣story of Eng∣land.
• c

  Brook tit. Offiice del. Court 25 H. 25, 28.
• d

  Register of Writs 8 220 Ibidem 170 172. Register of Writs 217 b. 229 b.
• e

  Register of Writs 169 170.
• f

  Ibidem 4.
• g

  Register of Writs 221 b.
• h

  9 E. 1 placit de Jur. & Assise co∣ram Solamo∣ne de Roff. & sociis suis Justic. Itine∣rant. rot; 15
• i

  Regi∣ster of ••ri••s 59.
• (k)

  Cromp∣tous Juris∣diction of Courts. 12 Dyer 315.
• l

  Elsings mo∣dus tenendi Parlamen∣tum.
• m

  3 E. 1. cap. 15.
• n

  Mich. 33 & 34 E. 1. rot. 103. in Ban∣co Regis.
• o

  Dugdales 1 & 2 parte Monasticon Anglicanum
• p

  Dier 4 Eliz. 33.
• q

  28 H. 8. ca. 15.
• r

  Sir Isaack Wake in his Rex Plato∣nicus.
• r

  Gregorius Tholos. Syntagm. Juris lib. 47. ca 21. sec. 23
• Cum non liceat cum ex Officii de praescript comperit d•• praescript. 30. vel 40. Anno.
• s

  Bal. in au∣tho actio∣nes de sacr. Eccles. & in proaem. fec. fac. null r••∣tione 93. distinct.
• t

  Greg. Tholosanus Syntagin. Juris lib. 47. ca. 21.24.
• traicte des Seigneuries ca. 3.58.
• x

  Cod. lib. 8. Tit. 14.
• x

  Brodon lib. 2. de acquire Do∣mino ca. 16.3.
• y

  Britton 1.
• z

  Bracton lib. 2.
• a

  idem lib. 1. ca. 8.5.
• b

  ca. 8.9.
• c

  Magdalen Coliedge Case en Cokes 1 Re∣ports 74.
• e

  Hill. 13 H. 7. en le mar∣gent d' un-Stathanis a∣bridgement.