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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 marble, by investing the crown with a more ample, more certain, and more loving dowry, than this of tenures; we hope we propound no matter of disservice.
But to speak distinctly of both, and first of honour: wherein I pray your lordships, give me leave, in a subject that may seem supra nos, to handle it rather as we are capable, than as the matter perhaps may require. Your lordships well know the various mixture and composition of our house. We have in our house learned civilians that profess a law, that we reverence and sometimes consult with: they can tell us, that all the laws de feodis are but additional to the ancient civil law; and that the Roman emperors, in the full height of their monarchy, never knew them; so that they are not imperial. We have grave professors of the common law, who will define unto us that those are parts of sovereignty, and of the regal prerogative, which cannot be communicated with subjects: but for tenures in substance, there is none of your lordships but have them, and few of us but have them. The king, indeed, hath a priority or first service of his tenures; and some more amplitude of profit in that we call tenure in chief: but the subject is capable of tenures; which shows that they are not regal, nor any point of sovereignty. We have gentlemen of honourable service in the wars both by sea and land, who can inform us, that when it is in question, who shall set his foot foremost towards the enemy; it is never asked, Whether he holds in knighf s service or in socage? So have we many deputy lieutenants to your lordships, and many commissioners that have been for musters and levies, that can tell us, that the service and defence of the realm hath in these days little dependence upon tenures. So then we perceive that it is no bond or ligament of government; no spur of honour, no bridle of obedience. Time was, when it had other uses, and the name of knight's service imports it: but "vocabula manent, res fugiunt." But all this which we have spoken we confess to be but in a vulgar capacity; which nevertheless may serve for our excuse, though we submit the thing itself wholly to his Majesty's judgment.
For matter of conscience, far be it from us to cast
in any thing willingly, that may trouble that clear fountain of his Majesty's conscience. We do confess it is a noble protection, that these young birds of the nobility and good families should be gathered and clocked under the wings of the crown. But yet "Nature vis maxima:" and " Suns cuique discretus sanguis." Your lordships will favour me to observe my former metnod. The common law itself, which is the best bounds of our wisdom, doth, even in hoc individuo, prefer the prerogative of the father before the prerogative of the king: for if lands descend, held in chief from an ancestor on the part of a mother, to a man's eldest son, the father being alive, the father shall have the custody of the body, and not the king. It is true that this is only for the father, and not any other parent or ancestor: but then if you look to the high law of tutelage and protection, and of obedience and duty which is the relative thereunto; it is not said. "Honour thy father alone," but "Honour thy father and thy mother," &c. Again the civilians can tell us, that there w-as a special use of the pretorian power for pupils, and yet no tenures. The citizens of London can tell us, there be courts of orphans, and yet no tenures. But all this while we pray your lordships to conceive, that we think ourselves not competent to discern of the honour of his Majesty's crown, or the shrine of his conscience; but leave it wholly unto him, and allege these things but in our own excuse.
For matter of petition, we do continue our most humble suit, by your lordships' loving conjunction, that his Majesty will be pleased to open unto us this entrance of his bounty and grace, as to give us liberty to treat. And lastly, we know his Majesty's times are not subordinate at all but to the globe above. About this time, the sun hath got even with the night, and will rise apace; and we know Solomon's temple, whereof your lordship, my lord treasurer, spake, was not built in a day: and if we shall be so happy as to take the axe to hew, and the hammer to frame, in this case, we know it cannot be without time; and therefore, as far as we may with duty, and without importunity, we most humbly desire an acceleration of his Majesty's answer according to his good time and royal pleasure.
A FRAME OF DECLARATION
MASTER OF THE WARDS,
AT HIS FIRST SITTING.
The king, whose virtues are such, as if we, that are his ministers, were able duly to correspond unto them, it were enough to make a golden time, hath commanded certain of his intentions to be published, touching the administration of this place,
because they are somewhat differing from the usage of former times, and yet not by way of novelty, but by way of reformation, and reduction of things to their ancient and true institution.
Wherein, nevertheless, it is his Majesty's express pleasure it be signified, that he understands this to he done, without any derogation from the memory or service of those great persons, which have formerly held this place, of whose doings his Majesty retaineth a good and gracious remembrance, especially touching the sincerity of their own minds.
But now that his Majesty meaneth to be as it were master of the wards himself, and that those that he useth be as his substitutes, and move wholly in his motion; he doth expect things be carried in a sort worthy his own care.
First, therefore, his Majesty hath had this princely consideration with himself, that as he is pater patrise, so he is by the ancient law of the kingdom pater pupillorum, where there is any tenure byknight's service of himself; which extendeth almost to all the great families noble and generous of this kingdom: and therefore being a representative father, his purpose is to imitate, and approach as near as may be to the duties and offices of a natural father, in the good education, well bestowing in marriage, and preservation of the houses, woods, lands, and estates of his wards.
For as it is his Majesty's direction, that that part which concerns his own profit and right, be executed with moderation; so on the other side, it is his princely will that that other part, which concerneth protection, be overspread and extended to the utmost.
Wherein his Majesty hath three persons in his eye, the wards themselves, idiots, and the rest of like nature; the suitors in this court; and the subjects at large.
For the first, his Majesty hath commanded special care to be taken in the choice of the persons, to whom they be committed, that the same be sound in religion, such whose house and families are not noted for dissolute, no greedy persons, no stepmothers, nor the like; and with these qualifications, of the nearest friends: nay, further, his Majesty is minded not so to delegate this trust to the committees, but that he will have once in the year at least, by persons of credit in every countv, a view and inspection taken of the persons, houses, woods, and lands of the wards, and other persons under the protection of this court, and certificate to be made thereof accordingly.
For the suitors, which is the second; his Majesty's princely care falls upon two points of reformation; the first that there be an examination of fees, what are due and ancient, and what are new and exacted; and those of the latter kind put down: the other, that the court do not entertain causes too long upon continuances of liveries after the parties are come of full age, which serveth but to waste the parties in suit, considering the degrees cannot be perpetual, but temporary; and therefore controversies here handled are seldom put in peace, till they have past a trial and decision in other courts.
For the third, which is the subject at large; his Majesty hath taken into his princely care the unnecessary vexations of his people by feodaries, and other inferior ministers of like nature, by colour of his tenures; of which part I say nothing for the present,
because the parties whom it concerns are for the most part absent: but order shall be given, that they shall give their attendance the last day of the term, then to understand further his Majesty's gracious pleasure.
Thus much by his Majesty's commandment; now we may proceed to the business of the court.
FOR THE MASTER OF THE WARDS TO OBSERVE, FOR HIS Majesty's BETTER SERVICE AND THE GENERAL GOOD.
First, That he take an account how his Majesty's last instructions have been pursued: and of the increase of benefit accrued to his Majesty thereby, and the proportion thereof.
Wherein first, in general, it will be good to cast up a year's benefit, viz. from February, 1610, which is the date of the instructions under the great seal, to February, 1611 ; and to compare the total with former years before the instructions, that the tree may appear by the fruit, and it may be seen how much his Majesty's profit is redoubled or increased by that course.
Secondly, It will not be amiss to compute not only the yearly benefit, but the number of wardships granted that year, and to compare that with the number of former years; for though the number be a thing casual, yet if it be apparently less than in former years, then it may be justly doubted, that men take advantage upon the last clause in the instructions, of exceptions of wards concealed, to practise delays and misfinding of offices, which is a thing most dangerous.
Thirdly, In particular it behoveth to peruse and review the bargains made, and to consider the rates, men's estates being things which for the most part cannot be hid, and thereby to discern what improvements and good husbandry have been used, and how much the king hath more now when the whole benefit is supposed to go to him, than he had when three parts of the benefit went to the committee.
Fourthly, It is requisite to take consideration what commissions have been granted for copyholds for lives, which are excepted by the instructions from being leased, and what profit hath been raised thereby.
Thus much for the time past, and upon view of these accounts "res dabit consilium" for further order to be taken.
For the time to come, first, It is fit that the master of the wards, being a meaner person, be usually present as well at the treaty and beating of the bargain, as at the concluding, and that he take not the business by report.
Secondly, When suit is made, the information by survey and commission is but one image, but the way were by private diligence to be really informed: neither is it hard for a person that liveth in an inn of court, where there be understanding men of every county of England, to obtain by care certain information.
Thirdly, This kind of promise of preferring the