A SPEECH OF THE KING'S SOLICITOR, USED UNTO THE LORDS AT A CONFERENCE BY COMMISSION FROM THE COMMONS, MOVING AND PERSUADING THE LORDS TO JOIN WITH THE COMMONS IN PETITION TO THE KING, TO OBTAIN LIBERTY TO TREAT OF A COMPOSITION WITH HIS MAJESTY FOR 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 in "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. 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: we 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 preroga tive 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 permaBut the principal causes of the conference now nent and durable as the marble, by investing the prayed, besides these significations of duty not to crown with a more ample, more certain, and more be omitted, are two propositions. The one, mat-loving dowry, than this of tenures; we hope we ter of excuse of themselves; the other, matter of propound no matter of disservice. petition. The former of which grows thus. Your But to speak distinctly of both, and first of lordship, my lord treasurer, in your last declara-honour: wherein I pray your lordships, give me tion of his majesty's answer, according to the leave, in a subject that may seem “supra nos,” attribute then given unto it by a great counsellor, to handle it rather as we are capable, than as the had imaginem Cæsaris" fair and lively graven, matter perhaps may require. Your lordships well made this true and effectual distribution, that know the various mixture and composition of our there depended upon tenures, considerations of House. We have in our House learned civilians honour, of conscience, and of utility. Of these that profess a law, that we reverence and somethree, utility, as his majesty set it by for the pre- times consult with: they can tell us, that all the sent, out of the greatness of his mind, so we set laws "de feodis" are but additionals to the anit by, out of the justness of our desires: for we cient civil law; and that the Roman emperors, in never meant but a goodly and worthy augmenta- the full height of their monarchy, never knew tion of the profit now received, and not a diminu- them; so that they are not imperial. We have tion. But, to speak truly, that consideration fall-grave professors of the common law, who will eth naturally to be examined when liberty of define unto us that those are parts of sovereignty, VOL. II.-35 273 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 knight's service or in socage? So have we many deputy lieutenants to your lordships, and many commissions 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. 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 was 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 For matter of conscience, far be it from us to to the globe above. About this time the sun hath cast in any thing willingly, that may trouble that got even with the night, and will rise apace; and clear fountain of his majesty's conscience. We we know Solomon's temple, whereof your lorddo confess it is a noble protection, that these ship, my lord treasurer, spake, was not built in young birds of the nobility and good families a day: and if we shall be so happy as to take the should be gathered and clocked under the wings axe to hew, and the hammer to frame, in this case, of the crown. But yet "Naturæ vis maxima:" we know it cannot be without time; and, thereand Suus cuique discretus sanguis." Your fore, as far as we may with duty, and without lordships will favour me, to observe my former importunity, we most humbly desire an acceleramethod. The common law itself, which is the tion of his majesty's answer, according to his best bounds of our wisdom, doth, even "in hoc | good time and royal pleasure. A FRAME OF DECLARATION FOR THE MASTER OF THE WARDS, AT HIS FIRST SITTING. tion of things to their ancient and true institution. THE king, whose virtues are such, as if we, | novelty, but by way of reformation, and reduc 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 Wherein, nevertheless, it is his majesty's express pleasure it be signified, that he understands this to be 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. 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. DIRECTIONS First, therefore, his majesty hath had this princely consideration with himself, that as he is "pater patriæ," so he is by the ancient law of this kingdom" pater pupillorum," where there is any tenure by knight's service of himself; which extendeth almost to all the great families noble FOR THE MASTER OF THE WARDS TO OBSERVE, for 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 step-mothers, 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 county, 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 decrees 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. HIS MAJESTY'S BETTER SERVICE, AND THE GENE- 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 the 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 behooveth 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 For the third, which is the subject at large; his of the bargain, as at the concluding, and that he majesty hath taken into his princely care the un-take not the business by report. necessary vexations of his people by feodaries, 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. Thus much concerning the improvement of the king's profit, which concerneth the king as "pater familias;" now as "pater patriæ." 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 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 | put down. 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. Thirdly, For the subjects at large; that the vexation of escheators and feodaries be repressed, which, upon no substantial ground of 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. A SPEECH OF THE KING'S SOLICITOR, PERSUADING THE HOUSE OF COMMONS TO DESIST FROM FARTHER QUESTION OF RECEIVING THE KING'S MESSAGES. BY THEIR SPEAKER, AND FROM THE BODY OF THE COUNCIL, AS WELL AS FROM THE KING'S PERSON IN THE PARLIAMENT 7 JACOBI. IT is my desire, that if any the king's busi- in discord. To this I shall always bend my en ness, either of honour or profit, shall pass the deavours. House, it may be not only with external prevail- The king's sovereignty, and the liberty of parng, but with satisfaction of the inward man.liament, are as the two elements and principles For in consent, where tongue-strings, not heart-of this estate; which, though the one be more strings, make the music, that harmony may end I active, the other more passive, yet they do not conveniency, and weaken the reputation of his council. All kings, though they be live gods on earth, yet, as he said, they are gods of earth, frail as other men; they may be children; they may be of ex 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 affirined, that "Concilium non habet potestatem delegatam, sed inhærentem :" 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. 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 exulcer-treme age; they may be indisposed in health; they ate; 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 Judæa 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 license? 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 Now, for that which concerns ourselves. First, for dignity; 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 commonalties and their officers, recorders, stewards, and the like; 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; 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 |