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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
next akin, doth much obscure the information, which before by competition of divers did better appear; and therefore it may be necessary for the master of the wards sometimes to direct letters to some persons near the ward living, and to take certificate from them: it being always intended the subject be not racked too high, and that the nearest friends that be sound in religion, and like to give the ward good education, be preferred.
Fourthly, That it be examined carefully whether the ward's revenues consist of copyholds for lives, which are not to be comprised in the lease, and that there be no neglect to grant commissions for the same, and that the master take order to be certified of the profits of former courts held by the ward's ancestor, that it may be a precedent and direction for the commissioners.
Fifthly, That the master make account every six months (the state appoints one in the year) to his Majesty; and that when he bringeth the bill of grants of the body for his Majesty's signature, he bring a schedule of the truth of the state of every one of them, as it hath appeared to him by information, and acquaint his Majesty both with the rates and states.
Thus much concerning the improvement of the king's profit, which concerneth the king as pater familias; now as pater patriae.
First, for the wards themselves, that there be special care taken in the choice of the committee, that he be sound in religion, his house and family not dissolute, no greedy person, no step-mother, nor the like.
Further, that there be letters written once every year to certain principal gentlemen of credit in every county, to take view not only of the person of the wards in every county, and their education; but of their houses, woods, grounds, and estate, and the same to certify; that the committees may be held in some awe, and that the blessing of the poor orphans and the pupils may come upon his Majesty and his children.
Secondly, for the suitors; that there be a strait examination concerning the raising and multiplication of fees in that court, which is much scandalized with opinion thereof, and all exacted fees put down.
Thirdly, for the subjects at large; that the vexation of escheators and feodaries be repressed, which, upon no substantial ground or record, vex the country with inquisitions and other extortions: and for that purpose that there be one set day at the end of every term appointed for examining the abuses of such inferior officers, and that the master of wards take special care to receive private information from gentlemen of quality and conscience in every shire touching the same.
SPEECH OF THE KING'S SOLICITOR,
THE HOUSE OF COMMONS
TO UBS18T FROM FARTHER QUESTION OF
RECEIVING THE KING'S MESSAGES,
BY THEIR SPEAKER, AND FROM THE BODY OF THE COUNCIL, AS WELL AS FROM THE KINO'S PERSON.
IN THF. PARLIAMENT 7 JACOBI.
It is my desire, that if any the king's business, either of honour or profit, shall pass the house, it may be not only with external prevailing, but with satisfaction of the inward man. For in consent, where tongue-strings, not heart-strings, make the music, that harmony may end in discord. To this I shall always bend my endeavours.
The king's sovereignty, and the liberty of parliament, are as the two elements and principles of this estate; which, though the one be more active, the other more passive, yet they do not cross or destroy
the one the other; but they strengthen and maintain the one the other. Take away liberty of parliament, the griefs of the subject will bleed inwards: sharp and eager humours will not evaporate; and then they must exulcerate; and so may endanger the sovereignty itself. On the other side, if the king's sovereignty receive diminution, or any degree of contempt with us that are born under an hereditary monarchy, so as the motions of our estate cannot work in any other frame or engine, it must follow, that we shall be a meteor, or corpus imperfecte
mistum; which kind of bodies come speedily to confusion and dissolution. And herein it is our happiness, that we may make the same judgment of the king, which Tacitus made of Nerva: "Divus Nerva res olim dissociabiles miscuit, imperium et libertatem." Nerva did temper things, that before were thought incompatible, or insociable, sovereignty and liberty. And it is not amiss in a great council and a great cause to put the other part of the difference, which was significantly expressed by the judgment which Apollonius made of Nero; which was thus: when Vespasian came out of Judtea towards Italy, to receive the empire, as he passed by Alexandria he spake with Apollonius, a man much admired, and asked him a question of state: "What was the cause of Nero's fall or overthrow?" Apollonius answered again, "Nero could tune the harp well: but in government he always either wound up the pins too high, and strained the strings too far; or let them down too low, and slackened the strings too much." Here we see the difference between regular and able princes, and irregular and incapable, Nerva and Nero. The one tempers and mingles the sovereignty with the liberty of the subject wisely; and the other doth interchange it, and vary it unequally and absurdly. Since therefore we have a prince of so excellent wisdom and moderation, of whose authority we ought to be tender, as he is likewise of our liberty, let us enter into a true and indifferent consideration, how far forth the case in question may touch his authority, and how far forth our liberty: and, to speak clearly, in my opinion it concerns his authority much, and our liberty nothing at all.
The questions are two: the one, whether our speaker be exempted from delivery of a message from the king without our licence? The other, whether it is not all one whether he received it from the body of the council, as if he received it immediately from the king? And I will speak of the last first, because it is the circumstance of the present case.
First, I say, let us see how it concerns the king, and then how it concerns us. For the king, certainly, if it be observed, it cannot be denied, but if you may not receive his pleasure by his representative body, which is his council of his estate, you both straiten his Majesty in point of conveniency, and weaken the reputation of his council. All kings, though they be gods on earth, yet, as he said, they are gods of earth, frail as other men; they may be children; they may be of extreme age; they may be indisposed in health; they may be absent. In these cases, if their council may not supply their persons, to what infinite accidents do you expose them! Nay, more, sometimes in policy kings will not be seen, but cover themselves with their council;
and if this be taken from them, a great part of their safety is taken away. For the other point of weakening the council; you know they are nothing without the king: they are no body-politic; they have no commission under seal. So as, if you begin to distinguish and disjoin them from the king, they are corpus opacum; for they have lumen de lumine: and so by distinguishing you extinguish the principal engine of the estate. For it is truly affirmed, that "Concilium non habet potestatem delegatam, sed inheerentem:" and it is but rex in cathedra, the king in his chair or consistory, where his will and decrees, which are in privacy more changeable, are settled and fixed.
Now for that which concerns ourselves. First, for dignity j no man must think this a disparagement to us: for the greatest kings in Europe, by their ambassadors, receive answers and directions from the council in the king's absence; and if that negotiation be fit for the fraternity and party of kings, it may much less be excepted to by subjects.
For use or benefit, no man can be so raw and unacquainted in the affairs of the world, as to conceive there should be any disadvantage in it, as if such answers were less firm and certain. For it cannot be supposed, that men of so great caution, as counsellors of estate commonly are, whether you take caution for wisdom or providence, or for pledge of estate or fortune, will ever err, or adventure so far as to exceed their warrant. And therefore I conclude, that in this point there can be unto us neither disgrace nor disadvantage.
For the point of the speaker. First, on the king's part, it may have a shrewd illation: for it hath a show, as if there could be a stronger duty than the duty of a subject to a king. We see the degrees and differences of duties in families, between father and son, master and servant; in corporate bodies, between commonalities and their officers, recorders, stewards, and the like j yet all these give place to the king's commandments. The bonds are more special, but not so forcible. On our part, it concerns us nothing. For first it is but de canali, of the pipe j how the king's message shall be conveyed to us, and not of the matter. Neither hath the speaker any such dominion, as that coming out of his mouth it presseth us more than out of a privy counsellor's. Nay, it seems to be a great trust of the king's towards the house, when the king doubteth not to put his message into their mouth, as if he should speak to the city by their recorder: therefore, methinks we should not entertain this unnecessary doubt. It is one use of wit to make clear things doubtful; but it is a much better use of wit to make doubtful things clear; and to that I would men would bend themselves.
ARGUMENT OF SIR FRANCIS BACON,
THE KING'S SOLICITOR,
IN THE LOWER HOUSE OF PARLIAMENT,
THE KING'S RIGHT OF IMPOSITIONS ON MERCHANDISES IMPORTED AND EXPORTED*
And it please you, Mr. Speaker, this question touching the right of impositions is very great; extending to the prerogative of the king on the one part, and the liberty of the subject on the other; and that in a point of profit and value, and not of conceit or fancy. And therefore, as weight in all motions increaseth force, so I do not marvel to see men gather the greatest strength of argument they can to make good their opinions. And so you will give me leave likewise, being strong in mine own persuasion that it is the king's right, to show my voice as free as my thought. And for my part, I mean to observe the true course to give strength to this cause, which is, by yielding those things which are not tenable, and keeping the question within the true state and compass ; which will discharge many popular arguments, and contract the debate into a less room.
Wherefore I do deliver the question, and exclude or set by, as not in question, five things. First, the question is de portorio, and not de tributo, to use the Roman words for explanation sake; it is not, I say, touching any taxes within the land, but of payments at the ports. Secondly, it is not touching any impost from port to port, but where claves regni, the keys of the kingdom, are turned to let in from foreign parts, or to send forth to foreign parts; in a word, matter of commerce and intercourse, not simply of carriage or vecture. Thirdly, the question is, as the distinction was used above in another case, "de vero et falso," and not "de bono et malo," of the legal point, and not of the inconvenience, otherwise than as it serves to decide the law. Fourthly, I do set apart three commodities, wools, woolfells, and leather, as being in different case from the rest; because the custom upon them is antiqua custuma. Lastly, the question is not, whether in matter of imposing the king may alter the law by his prerogative, but whether the king have not such a prerogative by law.
The state of the question being thus cleared and
• This matter was much debated by the lawyers and gentlemen in the parliament 1610, and 1614, &c. and afterwards given up by the crown in 1641.
freed, my proposition is, that the king by the fundamental laws of this kingdom hath a power to impose upon merchandise and commodities both native and foreign. In my proof of this proposition all that I shall say, be it to confirm or confute, I will draw into certain distinct heads or considerations which move me, and may move you.
The first is a universal negative: there appeareth not in any of the king's courts any one record, wherein an imposition laid at the ports hath been overthrown by judgment; nay more, where it hath been questioned by pleading. This plea, " quod summa prsedicta minus juste imposita fuit, et contra leges et consuetudines regni hujus Anglia;, unde idem Bates illam solvere recusavit, prout ei bene licuit;" is " primsB impressionis." Bates was the first man ab origine mundi, for any thing that appeareth, that ministered that plea; whereupon I offer this to consideration: the king's acts that grieve the subject are either against law, and so void, or according to strictness of law, and yet grievous. And according to these several natures of grievance, there be several remedies: Be they against law? Overthrow them by judgment: Be they too strait and extreme, though legal? Propound them in parliament. Forasmuch then as impositions at the ports, having been so often laid, were never brought into the king's courts of justice, but still brought to parliament, I may most certainly conclude, that they were conceived not to be against law. And if any man shall think that it was too high a point to question by law before the judges, or that there should want fortitude in them to aid the subject; no, it shall appear from time to time, in cases of equal reach, where the king's nets have been indeed against law, the course of law hath run, and the judges have worthily done their duty.
As in the case of an imposition upon ,2 H 4 linen cloth for the alnage; overthrow-n '3 H. 4. by judgment.
The case of a commission of arrest ^Assis. and committing of subjects upon examination without conviction by jury, disallowed by the judges.