lawful, and the Exercise of a lawful Employment. They say, 'tis otherwise, because it belongs to another Man's Office. Then 'twas [65] admitted by the Counsel for the present to be so, that Sir Henry was an Officer by Letters Patent under the Great Seal of England, (which by the Way makes the Office and Rights of it to be of Common Law Conusance,) and the Patent is set forth at large in Prinne, on 4 Inst. 64. 65. and that the King at Arms hath such a Right; yet if any Man intermeddles or incroaches upon that Office, it is not a Breach of the Rules of Honour, and not relating to Arms; but a plain Injury at Common Law: And an Action lies for it, as it doth for the Disturbance of any other Office or Franchise.
In 4 Inst. 126. 'tis said, that they do upon Request marshal Funerals: But supposing they alone ought to do it, then an Action lies. This is meerly a Question, whether the Letters Patent do carry such a sole Privilege? Suppose Nul tiel record be pleaded to them, when pleaded or inrolled, and without producing them; suppose Non concessit pleaded to them when produced, how shall these Issues be tried? Suppose they awarded a Satisfaction to be made to Sir H. S. by the Gift of a Sum of Money; and he should afterwards bring an Action at Law for the same Cause, will the Proceeding in the Court of the Earl Marshal be a Bar? The Fact alledged in these Articles comes within none of those Particulars supposed to be belonging to this Court, in 1 Inst. 391.
It matters not, whether these were publick Funerals, as was questioned in Parker's Case, Sid. 352. and in 2 Keble 316, 322. but the Query here is, if this be a Point of Honour; or whether it be not about the Right of an Office? and if it be the latter, they have no Power to determine it.
The Heralds are Officers attendant upon that Court; but it doth not follow, that that Court can judge of the Nature, or Extent, Validity, or Operation of their Letters Patent; no more than the Court Chrisian can try the Right or Freehold of a Chancellor's or Register's Office. The Earl Marshal cannot license the doing this in Prejudice of the Heralds, or acquit the Party if he does it, for he still stands liable at Law: The Herald hath a Freehold in it, and may bring his Action notwithstanding.
That the true Court is before both Constable and Marshal.—Then, 3. 'Twas argued, that admitting that no Prohibition did lie to the Court of Honour, or that there was no Cause for such Prohibition, yet it ought to be granted to this pretended Court, which is not within their Statute. The true Court is before Constable and Marshal, it is a Court by Prescription, and cannot be altered but by Act of Parliament: All our Books which describe the Court mention it to be before both, 4 Inst. 125. Crompt. Jurisdiction 82. 1 Inst. 74. Stamford 65. The Constable is the Chief, and so are the old Books, and 37 Hen. 6. 20. expresly before the Constable and Marshal. The Statutes, which mention the Court, do all take Notice of it, as held before both: the 8 Rich. 2. and that which they plead, do describe it so: And [66] the 1 Hen. 4. cap. 14. the 13 Hen. 4. 4. 5. all Attainders are pleaded to be before both.
Authority of Camden as to the Marshal.—Camden (who was an Herald ) in his Commentary de Etymologia, antiquitate & officio Comitis Mareschalli Angliæ, fol. 87. 'tis published at the End of his Latin Epistles, which are in 4to, printed for Chiswell, 1691. endeavours to advance the Office of Earl Marshal; and searches for the Etymology; and after all, makes him but an Harbinger; and tells us when the Title Mareschallus Angliæ was first used, and how it hath been enjoyed, and by whom, and of what Families: And afterwards 91. lessens his Character much; and derives the Office of Marshal of England from that of Marshal of the Houshould; which he describes to Disadvantage. The same is likewise in Fleta, lib. 2. cap. 5.
But this is observable which Camden says, that the greatest Increase of the Authority of this Office hath been since there were no Constables, for the Kings since that time have referred many Things to them, which in former Times were proper for the Constable: Neither had the Marshal any Precedency in respect of his Place until King Hen. 8. Anno 31. by Parliament assigned him Place next to the Lord Constable and before the Lord Admiral. All which shews that the Earl Marshal never had that Authority Time out of Mind, to hold this Court before himself alone, as is pretended, during the Vacancy of the Office of Constable.
In November 1640. 'twas voted by the House of Commons, upon a Report from
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