Page images
PDF
EPUB

For the third part of the matter of the petition, which was the remedy sought by letters of mart, his lordship seemed desirous to make us capable of the inconvenience of that which was desired, by setting before us two notable exceptions thereunto: the one, that the remedy was utterly incompetent and vain; the other, that it was dangerous and pernicious to our merchants, and in consequence to the whole state.

point in full question to farther times and occasions; | taken in pirates' hands. But yet that we were to so as it is left by the treaty in suspense, neither understand thus much of the king of Spain's care debarred nor permitted: the tenderness and point and regard of our nation; that he had written his of honour whereof was such, as they that went thi- letters to all corregidors, officers of ports, and other ther must run their own peril. Nay, farther, his his ministers, declaring his will and pleasure to lordship affirmed, that if yet at this time his Majesty have his Majesty's subjects used with all freedom would descend to a course of entreaty for the release and favour; and with this addition, that they should of the arrest in those parts, and so confess an ex- have more favour, when it might be showed, than clusion, and quit the point of honour, his Majesty any other. Which words, howsoever the effects might have them forthwith released. And yet his prove, are not suddenly to be requited with peremplordship added, that the offences and scandals of tory resolutions, till time declare the direct issue. some had made this point worse than it was, in regard that this very last voyage to Virginia, in tended for trade and plantation, where the Spaniard hath no people nor possession, is already become infamed for piracy. Witness Bingley, who first insinuating his purpose to be an actor in that worthy action of enlarging trade and plantation, is become a pirate, and hath been so pursued, as his ship is taken in Ireland, though his person is not yet in hold. For the trade to the Levant, his lordship opened unto us that the complaint consisted in effect but of two particulars: the one, touching the arrest of a ship called the Trial, in Sicily; the other, of a ship called the Vineyard, in Sardinia. The first of which arrests was upon pretence of piracy; the second, upon pretence of carrying ordnance and powder to the Turk. That process concerning the Trial had been at the merchants' instance drawn to a review in Spain, which is a favour of exceeding rare precedent, being directly against the liberties and privileges of Sicily. That of the Vineyard, notwithstanding it be of that nature, as, if it should be true, tendeth to the great dishonour of our nation, whereof hold hath been already taken by the French ambassador residing at Constantinople, who entered into a scandalous expostulation with his Majesty's ambassador there, upon that and the like transportations of munition to the Turk, yet nevertheless there is an answer given, by letters from the king's ambassador lieger in Spain, that there shall be some course taken to give reasonable contentment in that cause, as far as may be in both which ships, to speak truly, the greatest mass of loss may be included; for the rest are mean, in respect of the value of those two vessels. And thus much his lordship's speech comprehended concerning the wrongs in fact.

Concerning the wrongs in law; that is to say, the rigour of the Spanish laws extended upon his Majesty's subjects that traffic thither, his lordship gave this answer. That they were no new statutes or edicts devised for our people, or our times; but were the ancient laws of that kingdom: Suus cuique mos. And therefore, as travellers must endure the extremities of the climate, and temper of the air where they travel; so merchants must bear with the extremities of the laws, and temper of the estate where they trade. Whereunto his lordship added, That our own laws here in England were not exempted from the like complaints in foreign parts; especially in point of marine causes and depredations, and that same swift alteration of property, which is claimed by the admiralty in case of goods

For the weakness of the remedy, his lordship wished us to enter into consideration what the remedy was, which the statute of Henry the fifth, which was now sought to be put in execution, gave in this case : which was thus: That the party grieved should first complain to the keeper of the privy seal, and from him should take letters unto the party that had committed the spoil, for restitution; and in default of restitution to be made upon such letters served, then to obtain of the chancellor letters of mart or reprisal: which circuit of remedy promised nothing but endless and fruitless delay, in regard that the first degree prescribed was never likely to be effected; it being so wild.a chace, as to serve process upon the wrong doer in foreign parts. Wherefore his lordship said, that it must be the remedy of state, and not the remedy of statute, that must do good in this case; which useth to proceed by certificates, attestations, and other means of information; not depending upon a privy seal to be served upon the party, whom haply they must seek out in the West Indies.

For the danger of the remedy, his lordship directed our considerations to take notice of the proportions of the merchants' goods in either kingdom: as that the stock of goods of the Spaniard, which is within his Majesty's power and distress, is a trifle; whereas the stock of English goods in Spain is a mass of mighty value. So as if this course of letters of mart should be taken to satisfy a few hot pursuitors here, all the goods of the English subjects in Spain shall be exposed to seizure and arrest and we have little or nothing in our hands on this side to mend ourselves upon. And thus much, Mr. Speaker, is that which I have collected out of that excellent speech, concerning the first main part, which was the consideration of the petition as it proceeded from the merchant.

There followeth now the second part, considering the petition as it was offered in this house. Wherein his lordship, after an affectionate commemoration of the gravity, capacity, and duty, which he generally found in the proceedings of this house, desired us nevertheless to consider with him, how it was possible that the entertaining petitions concerning pri

vate injuries, and of this nature, could avoid these three inconveniences: the first, of injustice; the second, of derogation from his Majesty's supreme and absolute power of concluding war or peace; and the third, of some prejudice in reason of estate.

For injustice, it is plain, and cannot be denied, that we hear but the one part whereas the rule, "Audi alteram partem," is not of the formality, but of the essence of justice: which is therefore figured with both eyes shut, and both ears open; because she should hear both sides, and respect neither. So that if we should hap to give a right judgment, it might be justum, but not juste, without hearing both parties.

For the point of derogation, his lordship said, he knew well we were no less ready to acknowledge than himself, that the crown of England was ever invested, amongst other prerogatives not disputable, of an absolute determination and power of concluding and making war and peace: which that it was no new dotation, but of an ancient foundation in the crown, he would recite unto us a number of precedents in the reigns of several kings, and chiefly of those kings which come nearest his Majesty's own worthiness; wherein he said, that he would not put his credit upon cyphers and dates; because it was easy to mistake the year of a reign, or number of a roll, but he would avouch them in substance to be perfect and true, as they are taken out of the records. By which precedents it will appear, that petitions made in parliament to kings of this realm, his Majesty's progenitors, intermeddling with matter of war or peace, or inducement thereunto, received small allowance or success, but were always put off with dilatory answers; sometimes referring the matter to their council, sometimes to their letters, sometimes to their farther pleasure and advice, and such other forms; expressing plainly, that the kings meant to reserve matter of that nature entirely to their own power and pleasure.

commons petitioned, that they might have the trial and proceeding with certain merchants strangers as enemies to the state. The king's answer was, It should remain as it did till the king had taken farther order.

In the forty-fifth year of king Edward III. the commons complained that their trade with the Easterlings was not upon equal terms, which is one of the points insisted upon in the present petition, and prayed an alteration and reducement. The king's answer was, It shall be so as occasion shall require.

In the fiftieth year of the same king, the commons petitioned to the king for remedy against the subjects of Spain, as they now do. The king's answer was, That he would write his letter for remedy. Here is letters of request, no letters of mart: "Nihil potest nisi eodem modo petere."

In the same year, the merchants of York petitioned in parliament against the Hollanders, and desired their ships might be stayed both in England and at Calais. The king's answer was, Let it be declared unto the king's council, and they shall have such remedy as is according to reason.

In the second year of king Richard II. the merchants of the sea-coast did complain of divers spoils upon their ships and goods by the Spaniard. The king's answer was, That with the advice of his council he would procure remedy.

His lordship cited two other precedents; the one, in the second year of king Henry IV. of a petition against the merchants of Genoa; the other, in the eleventh year of king Henry VI. of a petition against the merchants of the still-yard, which I omit, because they contain no variety of answer.

66

His lordship farther cited two precedents concerning other points of prerogative, which are likewise flowers of the crown; the one touching the king's supremacy ecclesiastical, the other touching the order of weights and measures. The former of them was in the time of king Richard II. at what In the eighteenth year of king Edward I. com- time the commons complained against certain enplaint was made by the commons, against the sub-croachments and usurpations of the pope; and the jects of the earl of Flanders, with petition of redress. The king's answer was, "Rex nihil aliud potest, quam eodem modo petere :" that is, That the king could do no more but make request to the earl of Flanders, as request had been made to him; and yet nobody will imagine but king Edward the first was potent enough to have had his reason of a count of Flanders by a war; and yet his answer was, "Nihil aliud potest;" as giving them to understand, that the entering into a war was a matter transcendent, that must not depend upon such controversies.

In the fourteenth year of king Edward III. the commons petitioned, that the king would enter into certain covenants and capitulations with the duke of Brabant; in which petition there was also inserted somewhat touching a money matter. The king's answer was, That for that which concerned the moneys, they might handle it and examine it; but touching the peace, he would do as to himself seemed good.

king's answer was, The king hath given order to his council to treat with the bishops thereof." The other was in the eighteenth year of king Edward I. at which time complaint was made against uneven weights: and the king's answer was, "Vocentur partes ad placita regis, et fiat justitia;" whereby it appeared, that the kings of this realm still used to refer causes petitioned in parliament to the proper places of cognizance and decision. But for the matter of war and peace, as appears in all the former precedents, the kings ever kept it in scrinio pectoris, in the shrines of their own breast, assisted and advised by their council of estate.

Inasmuch as his lordship did conclude his enumeration of precedents with a notable precedent in the seventeenth year of king Richard II. a prince of no such glory nor strength; and yet when he made offer to the commons in parliament that they should take into their considerations matter of war and peace then in hand; the commons, in modesty, In the eighteenth year of king Edward III. the | excused themselves, and answered, "The commons

ground, upon just provocation, to enter into an honourable war. And that in the mean time we should know thus much, that there could not be more forcible negociation on the king's part, but blows, to procure remedy of those wrongs; nor more fair promises on the king of Spain's part, to give contentment concerning the same; and therefore that the event must be expected.

And thus, Mr. Speaker, have I passed over the speech of this worthy lord, whose speeches, as I have often said, in regard of his place and judgment, are extraordinary lights to this house; and have both the properties of light, that is, conducting, and comforting. And although, Mr. Speaker, a man would have thought nothing had been left to be said, yet I shall now give you account of another speech full of excellent matter and ornaments, and without iteration: which, nevertheless, I shall report more compendiously, because I will not offer the speech that wrong, as to report it at large, when your minds percase and attentions are already wearied.

will not presume to treat of so high a charge. Out | ground in making his peace, will not lose any of all which precedents his lordship made this inference, that as dies diem docet, so by these examples wise men will be admonished to forbear those petitions to princes, which are not likely to have either a welcome hearing or an effectual answer. And for prejudice that might come of handling and debating matter of war and peace in parliament, he doubted not, but that the wisdom of this house did conceive upon what secret considerations and motives that point did depend. For that there is no king which will providently and maturely enter into a war, but will first balance his own forces; seek to anticipate confederacies and alliances, revoke his merchants, find an opportunity of the first breach, and many other points, which, if they once do but take wind, will prove vain and frustrate. And therefore that this matter, which is arcanum imperii, one of the highest mysteries of estate, must be suffered to be kept within the veil: his lordship adding, that he knew not well whether, in that which he had already said out of an extreme desire to give us satisfaction, he had not communicated more particulars than perhaps was requisite. Nevertheless, he confessed, that sometimes parliaments have been made acquainted with matter of war and peace in a generality; but it was upon one of these two motives; when the king and council conceived that either it was material to have some declaration of the zeal and affection of the people; or else when the king needed to demand moneys and aids for the charge of the wars; wherein if things did sort to war, we were sure enough to hear of it: his lordship hoping that his Majesty would find in us no less readiness to support it than to persuade it.

Now, Mr. Speaker, for the last part; wherein his lordship considered the petition, as it was recommended from us to the upper house; his lordship delivered thus much from their lordships; that they would make a good construction of our desires, as those which they conceived did rather spring out of a feeling of the king's strength, and out of a feeling of the subjects' wrongs; nay more, out of a wisdom and depth, to declare our forwardness, if need were, to assist his Majesty's future resolutions, which de- | claration might be of good use for his Majesty's service, when it should be blown abroad; rather, I say, than that we did in any sort determine by this their overture, to do that wrong to his highness's supreme power, which haply might be inferred by those that were rather apt to make evil than good illations of our proceedings. And yet, that their lordships, for the reasons before made, must plainly tell us, that they neither could nor would concur with us, nor approve the course: and therefore concluded, that it would not be amiss for us, for our better contentment, to behold the conditions of the last peace with Spain, which were of a strange nature to him that duly observes them; no forces recalled out of the Low Countries; no new forces, as to voluntaries, restrained to go thither; so as the king may be in peace, and never a subject in England but may be in war: and then to think thus with ourselves, that that king, which would give no

The other earl, who usually doth bear a principal part upon all important occasions, used a speech, first of preface, then of argument. In his preface he did deliver, that he was persuaded that both houses did differ rather in credulity and belief, than in intention and desire: for it might be their lordships did not believe the information so far, but yet desired the reformation as much.

His lordship said farther, that the merchant was a state and degree of persons, not only to be respected, but to be prayed for, and graced them with the best additions; that they were the convoys of our supplies, the vents of our abundance, Neptune's alms-men, and fortune's adventurers. His lordship proceeded and said, this question was new to us, but ancient to them; assuring us, that the king did not bear in vain the device of the thistle, with the word, "Nemo me lacessit impune:" and that as the multiplying of his kingdoms maketh him feel his own power; so the multiplying of our loves and affections made him to feel our griefs.

For the arguments or reasons, they were five in number, which his lordship used for satisfying us why their lordships might not concur with us in this petition. The first was the composition of our house, which he took in the first foundation thereof to be merely democratical, consisting of knights of shires and burgesses of towns, and intended to be of those that have their residence, vocation, and employment in the places for which they serve: and therefore to have a private and local wisdom, according to that compass, and so not fit to examine or determine secrets of estate, which depend upon such variety of circumstances; and therefore added to the precedent formerly vouched, of the seventeenth of king Richard II. when the commons disclaimed to intermeddle in matter of war and peace; that their answer was, that they would not presume to treat of so high and variable a matter. And although his lordship acknowledged that there be divers gentlemen, in the mixture of our house, that are of good capacity and insight in matters of estate;

yet that was the accident of the person, and not the intention of the place; and things were to be taken in the institution, not in the practice.

His lordship's second reason was, that both by philosophy and civil law, "ordinatio belli et pacis est absoluti imperii," a principal flower of the crown; which flowers ought to be so dear unto us, as we ought, if need were, to water them with our blood: for if those flowers should, by neglect, or upon facility and good affection, wither and fall, the garland would not be worth the wearing.

His lordship's third reason was, that kings did so love to imitate primum mobile, as that they do not like to move in borrowed motions: so that in those things that they do most willingly intend, yet they endure not to be prevented by request: whereof he did allege a notable example in king Edward III. who would not hearken to the petition of his commons, that besought him to make the black prince prince of Wales: but yet, after that repulse of their petition, out of his own mere motion he created him. His lordship's fourth reason was, that it might be

[ocr errors]

some scandal to step between the king and his own virtue; and that it was the duty of subjects rather to take honours from kings' servants and give them to kings, than to take honours from kings and give them to their servants: which he did very elegantly set forth in the example of Joab, who, lying at the siege of Rabbah, and finding it could not hold out, writ to David to come and take the honour of taking the town.

His lordship's last reason was, that it may cast some aspersion upon his Majesty; implying, as if the king slept out the sobs of his subjects, until he was awaked with the thunderbolt of a parliament.

But his lordship's conclusion was very noble, which was with a protestation, that what civil threats, contestation, art, and argument can do, hath been used already to procure remedy in this cause; and a promise, that if reason of state did permit, as their lordships were ready to spend their breath in the pleading of that we desire, so they would be ready to spend their bloods in the execution thereof. This was the substance of that which passed.

A

CERTIFICATE TO HIS MAJESTY,

TOUCHING THE PROJECTS OF

SIR STEPHEN PROCTOR, RELATING TO THE PENAL LAWS.

IT MAY PLEASE YOUR SACRED MAJESTY, WITH the first free time from your Majesty's service of more present despatch, I have perused the projects of Sir Stephen Proctor, and do find it a collection of extreme diligence and inquisition, and more than I thought could have met in one man's knowledge. For though it be an easy matter to run over many offices and professions, and to note in them general abuses or deceits; yet, nevertheless, to point at and trace out the particular and covert practices, shifts, devices, tricks, and, as it were, stratagems in the meaner sort of the ministers of justice or public service, and to do it truly and understandingly, is a discovery whereof great good use may be made for your Majesty's service and good of your people. But because this work, I doubt not, hath been to the gentleman the work of years. whereas my certificate must be the work but of hours or days, and that it is commonly and truly said, that he that embraceth much, straineth and holdeth the less, and that propositions have wings, but operation and execution have leaden feet; I most humbly desire pardon of your Majesty, if I do for the present only select some one or two princi

pal points, and certify my opinion thereof; reserving the rest as a sheaf by me to draw out, at farther time, farther matter for your Majesty's information for so much as I shall conceive to be fit or worthy the consideration.

For that part, therefore, of these projects which concerneth penal laws, I do find the purpose and scope to be, not to press a greater rigour or severity in the execution of penal laws; but to repress the abuses in common informers, and some clerks and under-ministers, that for common gain partake with them for if it had tended to the other point, I for my part should be very far from advising your Majesty to give ear unto it. For as it is said in the psalm, "If thou, Lord, should be extreme to mark what is done amiss, who may abide it?" so it is most certain, that your people is so insnared in a multitude of penal laws, that the execution of them cannot be borne. And as it followeth ; " But with thee is mercy, that thou mayest be feared:" so it is an intermixture of mercy and justice that will bring you fear and obedience: for too much rigour makes people desperate. And therefore to leave this, which was the only blemish of king Henry VII.'s reign, and the unfortunate service of Empson and

Dudley, whom the people's curses, rather than any | law, brought to overthrow; the other work is a work not only of profit to your Majesty, but of piety towards your people. For if it be true in any proportion, that within these five years of your Majesty's happy reign, there hath not five hundred pounds' benefit come to your Majesty by penal laws, the fines of the Star-chamber, which are of a higher kind, only excepted, and yet, nevertheless, there hath been a charge of at least fifty thousand pounds, which hath been laid upon your people, it were more than time it received a remedy.

This remedy hath been sought by divers statutes, as principally by a statute in 18, and another of 31, of the late queen of happy memory. But I am of opinion that the appointing of an officer proper for that purpose, will do more good than twenty statutes, and will do that good effectually, which these statutes aim at intentionally.

And this I do allow of the better, because it is none of those new superintendencies, which I see many times offered upon pretence of reformation, as if judges did not their duty, or ancient and sworn officers did not their duty, and the like: but it is only to set a custos or watchman, neither over judges nor clerks, but only over a kind of people that cannot be sufficiently watched or overlooked, and that is, the common promoters or informers: the very awe and noise whereof will do much good, and the practice much more.

I will therefore set down first, what is the abuse or inconvenience, and then what is the remedy which may be expected from the industry of this officer. And I will divide it into two parts, the one, for that, that may concern the ease of your people, for with that will I crave leave to begin, as knowing it to be principal in your Majesty's intention, and the other for that, that may concern your Majesty's benefit.

[blocks in formation]
[ocr errors]

1. The officer by his diligence finding this case, is to inform the court thereof, who thereupon may grant good costs against the informer, to every of the subjects vexed: and withal not suffer the same informer to revive his information against any of them; and lastly, fine him, as for a misdemeanor and abuse of justice and by that time a few of such examples be made, they will be soon weary of that practice.

21

:

it is no composition, but
a discontinuance; and in
that case there is no pe-
nalty but costs: and the
poor subject will never
sue for his costs, lest it
awake the informer to re-
vive his information, and
so it escapeth clearly.

2. Informers receive
pensions of divers persons
to forbear them. And
this is commonly of prin-
cipal offenders, and of the
wealthiest sort of trades-

men.

For if one trades

man may presume to
break the law, and an-
other not, he will be soon
richer than his fellows.
As for example, if one
draper may use tenters,
because he is in fee with
an informer, and others
not, he will soon outstrip
the good tradesman that
keeps the law.

And if it be thought
strange that any man
should seek his peace by
one informer, when he
lieth open to all, the ex-
perience is otherwise: for
one informer will bear
with the friend of an-
other, looking for the like

measure.

And besides, they have devices to get priority of information, and to put in an information de bene esse, to prevent others, and to protect their pensioners.

And if it be said this is a pillory matter to the informer, and therefore he will not attempt it; although therein the statute is a little doubtful; yet if hanging will not keep thieves from stealing, it is not pillory will keep informers from polling.

And herein Sir Stephen addeth a notable circumstance: that they will peruse a trade, as of brewers or victuallers, and if any stand out, and will not be in fee, they will find means to have a dozen informations come upon him at once.

2. This is an abuse that appeareth not by any proceeding in court, because it is before suit commenced, and therefore requireth a particular inquiry.

But when it shall be the care and cogitation of one man to overlook informers, these things are easily discovered: for let him but look who they be that the informer calls in question, and hearken who are of the same trade in the same place and are spared, and it will be easy to trace a bargain.

In this case, having discovered the abuse, he ought to inform the barons of the exchequer, and the king's learned counsel, that by the Star-chamber, or otherwise, such taxers of the king's subjects may be punished.

« PreviousContinue »