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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
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.
CERTIFICATE TO HIS MAJESTY,
TOUCHUIG 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 embraeeth 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 whirh 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 anil 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
Concerning the ease of polled and vexed by
The abuses or inconveniences.
1. An informer exhibits an information, and in that one information he will put a hundred several subjects of this information. Every one shall take out copies, and every one shall put in his several answer. This will cost perhaps a hundred marks: that done, no farther proceeding. But the clerks have their fees, and the informer hath his dividend for bringing the water to the mill.
It is to be noted, that, this vexation is not met with by any statute. For
Vol. i. 2
his Majesty's subjects,
The remedies by the in-
1. The officer by his
it is no composition, but
2. Informers receive
And if it be thought strange that any man should 6eek his peace by one informer, when he lieth open to all, the experience is otherwise: for one informer will bear with the friend of another, 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. Thisisan 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.
Concerning the king's benefit which may grow by a moderate prosecution of some penal laws.
The abuses or inconveniences.
1. After an information is exhibited and answered, for so the statute requires, the informer for the most part groweth to composition with the defendant; which he cannot do without peril of the statute, except he have licence from the court, which licence he ought to return by order and course of the court, together with a declaration upon his oalh of the true sum that he takes for the composition. Upon which licence so returned, the court is to tax a fine for the king.
This ought to be but as it is now used, the licence is seldom returned. And although it contain a clause that the licence shall be void, if it be not duly returned; yet the manner is to suggest that they are still in terms of composition, and so to obtain new days, and to linger it on till a parliament and a pardon come.
Also, when the licence is returned, and thereupon the judge or baron to sesse a fine; there is none for the king to inform them of the nature of the offence; of the value to grow to the
1. The officer in this point is to perform his greatest service to the king, in soliciting for the king, in such sort as licences be duly returned, the deceits of these fraudulent compositions discovered, and fines may be set for the king in some good proportion, having respect to the values both of the matter and the person; for the king's fines are not to be delivered, as moneys given by the party, " ad redimendam vexationem," but as moneys given " ad redimendam culpam et pcenam legis;" and ought to be in such quantity, as may not make the laws altogether trampled down and contemned. Therefore the officer ought first to be made acquainted with every licence, that he may have an eye to the sequel of it: then ought he to be the person that ought to prefer unto the judges or barons, as well the bills for the taxations of the fines, as the orders for giving further days, to the end that the court may be duly informed both of the weight of causes, and the
king if the suit prevail;
Which point of form
And as for the informer's oath touching his composition which is commonly a trifle, and is the other ground of the smallness of the fine, it is no doubt taken with an equivocation: as taking such a sum in name of a composition, and some greater matter by some indirect or collateral mean.
Also, these fines, light as they be, are seldom answered and put in process.
2. An information goeth on to trial, and passeth for the king. In this case of recovery, the informer will be satisfied, and will take his whole moiety, for that he accounts to be no composition : that done, none will be at charge to return the postea, and to procure judgment and execution for the king. For the informer hath that he sought for, the clerks will do nothing without fees paid, which there being no man to prosecute, there can be no man likewise to pay; and so the king loseth his moiety, when his title appears by verdict.
3. It falleth out sometimes in informations of
delays therein used ; and lastly, he is to see that the fines sessed be duly put in process, and answered.
2. The officer is to follow for the king, that the posteas be returned.
3. The officer in such case is to inform the A SPEECH
There be other points wherein the officer may be of good use, which may be comprehended in his grant or instructions, wherewith I will not now trouble your Majesty, for I hold these to be the principal.
Thus have I, according to your Majesty's reference, certified my opinion of that part of Sir Stephen Proctor's projects, which concerneth penal laws: which I do wholly and most humbly submit to your Majesty's high wisdom and judgment, wishing withal that some conference may be had by Mr. Chancellor and the barons and the rest of the learned counsel, to draw the service to a better perfection. And most specially that the travels therein taken may be considered and discerned of by the lord treasurer, whose care and capacity is such, as he doth always either find or choose that which is best for your Majesty's service.
The recompence unto the gentleman, it is not my part to presume to touch, otherwise than to put your Majesty in remembrance of that proportion, which your Majesty is pleased to give to others out of the profits they bring in, and perhaps with a great deal less labour and charge.
TO THE KING BY HIS MAJESTY'S SOLICITOR,
BEING CHOSEN BY THE COMMONS AS THEIR MOUTH AND MESSENGER, FOR THE PRESENTING TO HIS MAJESTY THE INSTRUMENT OR WRITING OF
IN THE PARLIAMENT 7 JACOBI.
Most Gracious Sovereign,
The knights, citizens, and burgesses assembled in parliament, in the house of your commons, in all humbleness do exhibit and present unto your most sacred Majesty, in their own words, though by my hand, their petitions and grievances. They are here conceived and set down in writing, according to ancient custom of parliament: they are also prefaced according to the manner and taste of these later times. Therefore for me to make any additional preface, were neither warranted nor convenient; especially speaking before a king, the exactness of whose judgment ought to scatter and chase away all unnecessary speech as the sun doth a vapour. This only I must say; since this session of parliament we have seen your glory in the solemnity of the creation of this most noble prince; we have heard your wisdom in sundry excellent speeches which you have delivered amongst us; now we hope to find and feel the effects of your goodness,
in your gracious answer to these our petitions. For this we are persuaded, that the attribute which was given by one of the wisest writers to two of the best emperors, "Divus Nerva et divus Trajanus," so saith Tacitus, "res olim insociabilcs miscuerunt, imperium et libertatem;" may be truly applied to your Majesty. For never was there such a conservatory of regality in a crown, nor ever such a protector of lawful freedom in a subject.
Only this, excellent sovereign, let not the sound of grievances, though it be sad, seem harsh to your princely ears: it is but gemitus columbs, the mourning of a dove: with that patience and humility of heart which appertaineth to loving and loyal subjects. And far be it from us, but that in the midst of the sense of our grievances we should remember and acknowledge the infinite benefits, which by your Majesty, next under God, we do enjoy; which bind us to wish unto your life fulness of days; and unto your line royal, a succession and continuance even unto the world's end.
It resteth, that unto these petitions here included I do add one more that goeth to them all; which is, that if in the words and frame of them there be any thing offensive; or that we have expressed ourselves otherwise than we should or would; that your Majesty would cover it and cast the veil of your grace upon it; and accept of our good intentions, and help them by your benign interpretation.
Lastly, [ am most humbly to crave a particular pardon for myself that have used these few words; and scarcely should have been able to have used any at all, in respect of the reverence which I bear to your person and judgment, had I not been somewhat relieved and comforted by the experience, which in my service and access I have had of your continual grace and favour.
SPEECH OF THE KING'S SOLICITOR,
THE LORDS AT A CONFERENCE BV COMMISSION FROM THE COMMONS, MOVING AND PERSUADING THE LORDS
WARDS AND TENURES.
IN THE PARLIAMENT 7 JACOBI.
The knights, citizens, and burgesses of the house of commons, have commanded me to deliver to your lordships the causes of the conference by them prayed, and by your lordships assented, for the second business of this day. They have had report made unto them faithfully of his Majesty's answer declared by my lord treasurer, touching their humble desire to obtain liberty from his Majesty to treat of compounding for tenures. And first, they think themselves much bound unto his Majesty, that jn re nova, in which case princes use to be apprehensive, he hath made a gracious construction of their proposition. And so much they know of that, that belongs to the greatness of his Majesty, and the greatness of the cause, as themselves acknowledge they ought not to have expected a present resolution, though the wise man saith, " Hope deferred is the fainting of the soul." But they know their duty to be to attend his Majesty's times at his good pleasure. And this they do with the more comfort, because that in his Majesty's answer, matching the times, and weighing the passages thereof, they conceive, in their opinion, rather hope than discouragement.
But the principal causes of the conference now prayed, besides these significations of duty not to be omitted, are two propositions. The one matter of excuse of themselves; the other, matter of petition. The former of which grows thus. Your lordship, my lord treasurer, in your last declaration of his Majesty's answer, which, according to the attribute then given unto it by a great counsellor, had imaginem Cresaris fair and lively graven, made
this true and effectual distribution, that there depended upon tenures, considerations of honour, of conscience, and of utility. Of these three, utility, as his Majesty set it by for the present, out of the greatness of his mind, so we set it by, out of the justness of our desires: for we never meant but a goodly and worthy augmentation of the profit now received, and not a diminution. But, to speak truly, that consideration falleth naturally to be examined when liberty of treaty is granted: but the former two indeed may exclude treaty, and cut it off before it be admitted.
Nevertheless, in this that we shall say concerning those two, we desire to be conceived rightly: «e mean not to dispute with his Majesty what belongeth to sovereign honour or his princely conscience; because we know we are not capable to discern of them otherwise, than as men use sometimes to see the image of the sun in a pail of water. But this we say for ourselves, God forbid that we, knowingly, should have propounded any thing, that might in our sense and persuasion touch either or both; and therefore herein we desire to be heard, not to inform or persuade his Majesty, but to free and excuse ourselves.
And first, in general, we acknowledge that this tree of tenures was planted into the prerogative by the ancient common law of this land: that it hath been fenced in and preserved by many statutes, and that it yieldeth at this day to the king the fruit of a great revenue. But yet, notwithstanding, if upon the stem of this tree may be raised a pillar of support to the crown permanent and durable as the