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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 never-

VOL. III. Z



S3 8 A Report of the Spanish Grievances.

theless there is an aswer 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 5
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 traffick thither, his lordship gave this
answer. That they were no new statutes or edicts de-
vised for our people, or our times ; but were the an-
cient 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 even 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 admi-
ralty in case of goods taken in pirates. But yet
we were to understand thus much of the king of
Spain's care and regard of our nation ; that he had
written his letters to all corregidors, officers of ports,
and other his ministers, declaring his will and pleasure
to have his majesty's subjects u^ed with all freedom
and favour; and with this addition, that they should
have more favour, when it might be shewed, than any
other. Which words, howsoever the effects prove,
are not suddenly to be requited with peremptory reso-
lutions, till time declare the direct issue.

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 in-
convenience of that which was desired, by setting be-
fore us two notable exceptions thereunto : the one,
that the remedy was utterly incompetent and vain \ the



A Report of the Spanish Grievances* 339

other, that it was dangerous and pernicious to our mer-
chants, and in consequence to the whole state.

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 pro-
ceed 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 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, Mr. Speaker, is that which I have collected put
of that excellent speech, concerning the first main part,
which was the consideration of the petition as it pro-
ceeded from the merchants.

There followeth the second part, considering the
petition as it was offered in this house. Wherein his
lordship, after an affectionate commemoration of the



A Report of the Spanish Grievances.

gravity, capacity, and duty, which he generally found
in the proceedings of this house, desired us neverthe-
less to consider with him, how it was possible that the
entertaining petition concerning private 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 con-
cluding war or peace ; and the third, of some preju-
dice in reason of estate.

For injustice it is plain, and cannot be denied, that
we hear but the one part : whereas the rule, Audi
alter am 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 jus-
turn, 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 abso-
lute 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,
lie 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 prece-
dents it will appear, that petitions made in parliament
to kings of this realm, his majesty's progenitors, inter-
meddling 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 en-
tirely to their own power and pleasure.



A Report of the Spanish Grievances. 341

In the eighteenth year of king Edward I. complaint
was made by the commons, against the subjects of
the earl of Flanders, with petition of redress. The
king's answer was, Bex nihil aliud potesf, quam eodem
modo petere : that is, That the king could do no more
but mike 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, Nihit aliud potest ; as giving them
to understand, that the entering into a war was a mat-
ter transcendent, that must not depend upon such
controversies.

In the fourteenth year of king Edward III. the com-
mons petitioned, that the king would enter into cer-
tain covenants and capitulations with the duke of Bra-
bant; in which petition there was also inserted some-
what touching a money matter. The king's answer
was, That for that that concerned the monies, they
might handle it and examine it ; but touching the
peace, he would do as to himself seemed good.

In the eighteenth year of king Edward III. the
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 com-
mons 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 are
letters of request, no letters of mart : Nikil potest nisi
eodem modo petere.

In the same year, the merchants of York petitioned
in parliament against the Hollanders, and desired their



A Report of the Spanish Grievances.

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 mer-
chants of the sea-coasts did complain of divers spoils
upon their ships and goods by the Spaniard. The
king's anwer was, That with the advice of his council
he would procure remedy.

His lordship cited two other precedents; throne,
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.

His lordship farther cited two precedents concern-
ing other points of prerogative, which are likewise
flowers of the crown ; the one touching the king's su-
premacy ecclesiastical, the other, touching the order
of weights and measures. The former of them was in
the time of king Richard II. at what time the com-
mons complained against certain encroachments and
usurpations of the pope ; and the king's answer was,
<c The king hath given order to his council to treat
Cf with the bishops thereof." The other was in the
eighteenth year of king Edward I. at which time com-
plaint was made against uneven weights : and the
king's answer was, Vocentur paries ad placita regis,
et, fiat jus tit ia : whereby it appeared, that the kings
of this realm still used to refer causes petitioned in par-
liament to the proper places of cognizance and deci-
sion. But for the matter of war and peace, as ap-
pears 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 state.

Inasmuch as his lordship did conclude his enume-
ration 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



A Report of the Spanish Grievances, 843

in hand ; the commons, in modesty, excused them-
selves, and answered, " The commons will not pre-
" sume to treat of so high a charge." Out 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 antici-
pate 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 imperil', one of the highest
mysteries, 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 matters 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 af-
fection 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 per-
suade it.

Now, Mr. Speaker, for the last part; wherein his
lordship considered the petition, as it was recom-
mended from us to the upper house , his lordship deli-
vered thus much from their lordships; that they would
a good construction of our desires^ as those



A Report of the Spanish Grievances.

which they conceived did rather spring out of a feel-
ing 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 declara-
tion might be of good use for his majesty's service,
when it should be blown abroad; rather,! say, than that
w r e 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 feather 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 con-
ditions of the last peace w r ith 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
ground in making his peace, will not lose any 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 nego-
ciation on the king's part, but blows, to procure re-
medy 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 ex-
pected.

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 comfort-
ing. 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 ex-
cellent matter and ornaments, and without iteration ;



A Report of the Spanish Grievances. 34-5

which, nevertheless, I shall report more compen-
diously, because I will not offer the speech that wrong,
as to report it at large, when your minds percase and
attentions are already wearied.

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 re-
formation as much.

His lordship said farther, that the merchants were 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 de-
vice of the thistle, with the words, 'Nemo me lacttsit
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 peti-
tion. 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 com-
mons disclaimed to intermeddle in matters ot war and
peace ; that their answer was, that they would not
presume to treat of so high and variable a matter.



346 A Report of the Spanish Grievances.

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 phi-
losophy and civil law, ordinatio belli et pads est also-
luti imperil, 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 prhnum 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 alledge
a notable example in king Edward III. who would
not hearken to the petition of his commons, that be-
sought 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 vir^
tue: 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 of 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, con-
testation, art, and argument can do, hath been used
already to procure remedy in this cause; and a






A Report of the Spanish Grievances. 347

mise, 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.



[ 348 ]



CERTIFICATE TO HIS MAJESTY,

TOUCHING THE PROJECTS OF

SIR STEPHEN PROCTOR,



RELATING TO THE



PENAL LAWS.



It may please your sacred Majesty,

VV ITII the first free time from your majesty's sei>
vice of more present dispatch, I have perused the pro-
jects 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 mnny 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 opera-
tion and execution have leaden feet; I must humbly
desire pardon of your majesty, if I do for the present
only select some one or two principal points, and cer-
tify my opinion thereof; reserving the rest as a sheaf
by me to draw out, at further time, further matter for



Certificate touching the Penal Laics. 349

-your majesty's information for so much as I shall con-
ceive 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-minis-
ters, 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 are so
ensnared in a multitude of penal laws, that the execu-
tion of them cannot be borne. And as it followeth ;
But with thee is mercy, thai 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 VIL's
reign, and the unfortunate service of v Empsom and
Dudley, whom the peoples 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, never-
theless, there hath been a charge of at least fifty thou-
sand 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 pur-
pose, 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 superintendenciesj which I 'see many



350 Certificate touching the Penal Laws.

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 aistos
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 pro-
moters 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 I
will 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 his Majesty's subjects,



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 3) → online text (page 29 of 45)