THE RELACION OF A HEARING IN PRESENCE OF YE KING AND The following very curious Manufcript was discovered, with others of a fimilar nature, among the papers of GLYNN, once Recorder of London, and are communicated to this Work by an intelligent Correfpondent at Worcester. We give it as a valuable Relation of an important Fact. It is ftrongly indicative of the Character and Views of King James, and of the firmnefs of his Judges.-The former, educated under the influence of arbitrary power, reluctantly fubmitted to the dominion of the law. And the latter, fenfible of the neceffity of bounding the prerogative, nobly ftrove to preserve the limits which the wifdom of their Ancefiors had prescribed. JAMES often endeavoured to render himself superior to the restraints which the Conftitution of England had fet on the Regal Power; and he had repeated struggles with the Courts of Common Law when aiming at the Extension of the Prerogative. But with refpect to the Royal Proclamations, and in several cases of Prohibition, the Judges were victorious, and preserved the authority of the Laws unfhaken. A relation of thofe Facts is given us by Sir Edward Coke, in the 12th volume of his Reports, (63. 74. &c.) And the fame Writer informs us, though very briefly, in another work (4. Inft: 242,) that in the prefent inftance they were victorious also—And that in confequence of their Determination, " his Majefty was "graciously pleased that the Lord Prefident's Commission should be reformed; whereupon the "Lord Zouch gave over his place.—And yet the Commiffion was not after reformed in all "points as it ought to have been." The Prince of Wales who is mentioned in this Relation, was Henry, the King's eldeft fon, and is reprefented as an amiable perfon. He died a few years afterwards, and it was fufpected, by poison. The Archbishop was Bancroft, a prelate accufed in other inftances of urging the Extenfion of the Prerogative, of encouraging the King when infifting on the Divine Right and the abfolute Authority of the Regal Sway. "My Baron Altham," on the contrary, evinced himself on other occafions as the firm Defender of the Laws of his Country. Sir Robert Cecil was the fon of the celebrated Burleigh.--He was in great favour with James, and accused of favouring the Prerogative. James was correct in affirming that his Ancestors, Kings of England, had frequently fat in the Court of King's Bench; but those days had fled.—It had long been a received maxim that all judicial Authority was delegated to the Judges.-And, therefore, though James is alleged to have fat himself in that Court, he was not fuffered to pronounce Judgment. KINGE JAMES ALL the Judges being affembled fave The matter for the marches was moved by the Lord Trefuror that the difference SUP. to MONTHLY MAG. Vol. II. might be drawne into a queftion, whereunto all the Lords affented and did agree That the Lord Prefident fhould propound the Queftion. Whereunto his Lordship answered that for his part he made noe queftion, for he in his judgement and understanding was fatisfied. Yet if he should make the quef 6 H tion, Whereupon the King's Counfell prefented themselves Mr Attorney fpake notheing, but S Francis Bacon beuldly fpake fayeing that it was not (as he conceived) fitt that the Cafe or Question fhould be drawne disjoyned (that is) either to be made foorthe of the ftatute of 34th of Hen. the 8th only or out of the King's prerogative, but out of both. That is, whether the kinge may by his owne prerogative and the fame ftatute give power to the Lord Prefident & Counfell to exercife jurifdicion within the 4 fhires, and that this fhould be the queftion, as well the Lords of the Counfell, as the Lord Prefident affented. The queftion being written and read to the Judges, they made noe answere. Whereupon the Lord Chancellor demanded whether they did agree that to be the question or noe. Then the Lord Chiefe Juftice of England humbly craved pardon difclaymeing utterly from yelding to any queftion or giving their judgement in the fame infoemuch as (though they were unworthy of their places) yet his Highnefs had conftituted them Judges, wherein they were not to deliver their opinions, but as the caufes and cafes fell out before them judicially, betweene party and party, alleadging further, that they before that tyme, knew of noe queftion & hoped they should not be called to answer any queftion. But if the Lord Prefident & inhabitants of thofe fhires had any queftion, when it came judicially before them, they would heare what their Counfell on both fides would faye and proceed in juftice, as by oath they are bound; and therefore prayed that they might not be urged or drawn from the course of judges in that cafe, to make a prefident thereof to their íucceffors that should come after them. Which anfwere the Lords of the Councell allowed not; And the Lord Chancellor answered, that the matter proposed was to be confulted on by the Kinge & his Councell, as a matter of ftate, and that the King had his Privy Councell, confiftinge of the Lords then prefent, ad that the Judges were alfoe of his Councell, and to give their counfell when they are called thereunto, & fworne to doe that as well as to the administration of juftice. Whereunto noe reply was made. And thereupon the Lord Chamberlayne went for the Kinge, who prefently came to the counfell table, and brought the younge Prince with him, who was feated upon a ftoole bye, but not at the table. Then was the queftion read, & all the Judges were againe, by the King, demanded what they thought thereof. Whereunto the Lord Chiefe Juftice again upon his knees to his Majestie, crav ed pardon to yeld to drawe it to any Queftion for the Cause before showed to the Lords. The KINGE then fayed that the Prefident and Counfell of the principality and marches of Wales (having his Commiffion and Inftructions) are hindered in their proceedings by prohibitions; which (faid he) are fought for upon these grounds that fome of you (fpeaking to the Judges) have fayed that they of the fower fhires ought not to be fubiect to any Jurifdiction but Weftminster Hall, and that he would faye notheing to them in generall before he entred into his particular Queftion; for his errand thither was caufed by many and continuall complaints of prohibitions, whereby the Jurifdiction of the most of his Courts were called in queftion; that is, faid he, the Counsell in the Marches of Wales, the Counsell in the North, the Admiralty, the Court of Requefts, and all his Ecclefiafticall Courts. Soe that to fettle thofe Courts belonged to him, as Kinge and Monarch, by the fundamentall Lawes of this Realme, and the Realmes of Chriftian Kingdomes and Empires. First. Although at the firft Kinges reigned tumultuarily, yet after the Coun fell Jethro gave to Mofes, which hath been Vol. II.] Singular Speech of King James. been approved by all that profeffe Chriftianity, they have chofen out men of courage, feareing God, loveing truth, and hateing bribes, and fett them over thou fands, over hundreds, over fifties, and over tenns, to adminifter juftice in all ordinary and comon caufes, betweene party and party, referveing to their owne judicature, all matters of great moment and difficulty. And this refervacion here in England you call the King's.prerogative, and your own bookes doe prove the forme of government was used here in England. The Kings themselves ufed to ride from country to country to adminifter juftice, and to that end the Chancellor & Judges of the land attended the Kinge & either with or neere him decided caufes which might cafily be performed here in England before the heptarchie was united, and in Scotland alfoe till Scotts & Picts were made one nation. But when kingdomes grewe great Princes became proude & waxed idle, and in their pride & lafineffe (which greatnes had begotten) they thought it better to laye that burthen from themselves upon others, and foe fettled the Courts at Weftmr. as now they are, in which I may fitt myfelfe and give judgements (whatfoeuer hath been fayed to the contrary by one in parliament), for judge ments are given in my name, & efpecially in the Chancery, all the Records to this day goe (Rege prefente) and foe likewife in our bench. In the begineing alfo the parliament fate all together in one houfe, & all caufes were handled in the King's owne prefence, but afterwards when the Kings of this land grewe great & lazie, and the number of the Burgeffes increafeing, for more conveniencye of confultation, the Comons were fent to an other houfe where the Kinge is not prefent, because he cannot divide his perfon. But notheing can be concluded without him. And although (when the houfes were all one) all was don and spoken in the King's prefence & hearing, yet nowe the King may not knowe what is don in the lower house. Conftantine the Greate adminiftred juftice in ordinarie caufes by judges delegate, yet he reserved caufes of greateft moment to himfelfe, and when there grewe controverfie betweene his Bishops or Judges, he was Judge him felfe. All Judges are but the King's fhadowe and minifters, & all your breves are fent foorth in my name, and not in the Judges. 967 And then the Kinge fayed that the judgements of all the Courts are his, & you peakeing to the Judges) are but my deputies, for I may fitt in the Chancery, or in our bench, are not the proces Tefte meipfo, & is not our bench Locus Regis, fo that I may fitt and judge there if I lift, you have nothing of your felves but what you have from me. And though I will ever defend the lawes of my realme, and will not bringe innovacions, yet for matter of government continued foe long in foe many Kings and Queenes days, fhall not I be as able to mainteyne my prerogative as my predeceffors have don, yes verely, & will do, in foe much as I am anfwereable to God for your doeings & you to me, it must needs be that your judgements are myne, and what foeuer any in this land may doe by authority from me, except it be in adminiftracion of the facraments or fuch like, I may doe it myfelfe. And albeyt my predeceffors haue not don it thefe many yeares, yet I pray you what fayeth your lawe, Nullum tempus occurrit Regi, and what is all your lawe, but Voluntas Regis, and then the lawe fayeth, Ejus eft interpretare cuius eft condere. I speake not this for my felfe foe much but alfoe for my fonne here, who is Prince of Wales, and when I thinke fitt fhal be fent thither. And (turneing to the Prince) fayed, This concerneth you, fir, and I hope you will loofe nothinge that is yours, and if you will, your father will not dureing his life. Is it fitt, fayed the King, that in those Countries bordering about the Prince's houfes, he, nor his Councell, fhould haue further jurifdicion than an ordinary Juftice of Peace, and that he should haue noe jurisdicion in his owne house and ouer his heigh court at his gates, thall he haue leffe than the meaneft prefident that ever was. The people of these countries have obeyed all the tyme of 6 or 7 Kings, my predeceffors, and why thould not they obey now as well? I fee euery fubject ftands upon his right, and euery Judge for his own jurifdicion: And may not I aswel ftand for my right & jurifdicion to leave it to my fucceffor as I found it, your felves (fpeaking to the judges) in a cafe the last day which concerned the Lord of Cumberland, fayed that 80 yeares ufage was a good matter, but in this cafe 180 avayleth notheing. Then kneeled downe the Lord Coke,who fayed that whether the fower fhires were 6 H 2 within within the jurifdicion of the Councell was queftio facti & non Juris, and ought to be tried by the country. To whom the King's majestie angerly replied, did not I tell you before that you haue notheing but foorth of the power I give you, who then shall direct my tryal? I doe knowe your meaneing, but I will not be foe tryed; doe not I fee that through the flougifhneffe of kings & Princes, whoe because they would not fitt in parliament themfelves have admitted divided bodyes as the vpper houfe ,& the lower, whereas if Kings & Princes fate themselves in parliament as they might doe, & call before them the members of the fame together as affiftante to the Kinge, he thould be the better refpected. Have I euer for any fubject of my land, in any cafe which I affected as in the late cafe of the union; did I euer write, fend, or folicit any of you, but left you to your felves, and what hath come of this fufferance? None doe oppose themselves against the jurifdicion of the Councell in the marches, but certaine light headed fellowes calling them by the Scottish name Mounteinge fellowes, in English Swaggeringe fellowes, fuch as Herbert Crofts, and others, which he named to the number of three or fower, who, because they would oppreffe the meaner people, and bear the whole fway of their countrey, without controllement, doe oppofe themfelves against government & the ftate of a Kinge, to whome they knowe not what apperteyneth. I knowe there might be a wifer Kinge and more verteous, and yet I knowe I am noc foole, I came not in as an vfurper, but as a rightful Kinge, difcended directly out of the loynes of the Kings of this land, and what prerogative to me therein apperteyneth, I will hold & mayn. teyne to the vttermoft. The cafe now in queftion is not the prefidents of the marches of Wales only, but through your hardyneffe to animate men to difobedience, fee you not what comes of it, that the people of the fower fhires will not be obedient to the laft infructions for matters of xl. & vnder. Is it not the prefidents of Yorke his cafe heere prefent, naye is it not allfo the Churches cafe, here my Lord of Canterbury prefent, none of thefe can proceed in any Courfe of Juftice by reafon of your prohibitions graunted, wch I defire you to fpare. The Lords Chiefe Juftices & Chiefe Baron with this fpeech of the Kings fwelled fo with anger, that teares fell from them. The Kinge further faid, I have now unfolded unto you the true lawe of free Monarchies & what I may doe. And you fhall fhortly vnderftand what I meane to doe, I will hear the reafons that shal be made of each fide, & will hould you to the poynt, and when I doe perceave the force of any argument or reafon I will truly tell you what I thinke thereof (as I fhall give accompt to God) not propofeing to bring in any noviltye for the enlargeing of my owne prerogative nor reftraineing of prohibicións but in cafes where they have growne of late and have not heretofore been granted. Tell me faid the Kinge to the Judges what are the reafons, that move this? for I proteft but that I vnderftand fome of you have refolved against that jurisdicion for thofe fhires I would leave it to yourfelves to judge. But nowe Res non eft integra. Say that you have not fo affirmed & I have done. The judges anfwered the cafe is of great waight and moment the question not know ne to them before nor agreed on when they came into that place, therefore they defired time to confider thereof. The Kinge anfwered, the queftion is not new, it nath beene twice debated in my owne prefence and oftener before the Lords, and the inftrucions wch are now refifted were made by my Councell & the Lord Chiefe Juftice of the Comon Pleas therefore you neede not to defirę tyme to confider thereof. Then faid the Lord Coke, they had not debated the caufe and conferred the reafons to agree what fhould be faid and he was affrayde that if they fhould anfwere fingle it would fall out as was faid of the old Brittans Dum finguli pugnant univerfi vincuntur. The Kinge faid I fhould have faid foe to you whilst every Court ftrives for its owne jurifdicion the generall jurifdicion goeth to wracke. The Lord Coke faved this is a mat ter of fact ad quefionem facti non refpondent jurifperiti. Never tell me that faid the Kinge, It is a question of fact whether this or that towne in Gloucestershire be in the marches of Wales or noe, but whether the fower fhires be comprehended in the meaning of the ftatute vnder the words of marches of Wales is not queftio facti. Well, quoth the Kinge, I will keepe my determinacion to my feife till the end, & fith you defire tyme I will leave you once Vol. II.] Speech of Sir Robert Cecil, relative to the Marches, 1581. 969. once more to confider with yourselves after fome fitting courfe, only I thought good thus much to give you taste of my intencion that you may know I meane to mayntayne my prerogative. The Arch Bishop of Canterbury faid, your Majeftie hath truly declared the ground worke of all free monarchies & lawes of kingdomes, and tha: wch you have fayed is agreeable to the word of God, your giving jurifdicion to others is (as you may tearme it) not derogative to your felfe, but wth refervacion of fupreame jurifdicion to you. And whereas al jurifdicion confifteth in queftione facti, or in queftione juris, if this anfwere be allowed, where fhall the fupreame jurifdicion be, if it be queftio facti it is taken from you & given to the Jury, if it be queftio juris, then it belongeth only to the judges. With this the Kinge, Councell, and all arofe and departed. SIR ROBERT CECILL bis Speech concerning the Jurifdicion of the Councell in the fower Shires or Marches of Wales. 23tio Regine Eliz. 1581. ALTHOUGH I am not of their mynde who conceave noe change ought to be made of auncient lawes or longe ufed courfes in government, because the comon people even naturally affecting change are notwithstanding with change of old cuftomes ever difcontented, yet doe I thinke that the proceedings of our aunceftors are reverently to be efteemed and their wifdomes not to be preiudiced by our innovations unless neceffitie doth inforce or publique commoditie occafion us thereunto. "What moved the Kings of this realme to erect a counfell in the principality & marches of Wales, and to committ to their government the Marcher Shires of Gloucefter, Worcester, Hereford, Salop and Monmouth, I doe remember the wilde & unrulie behavior of the people in those parts is recorded in ftatuts made against them and their now civilitie and obedience is well knowne to her Majefty, and gratiously conceaved off. Therefore if at firft it was neceffarilie provided & fince hath been politiquely maynteyned for the good enfueing there. by that the inhabitants of thofe marcherfhires fhould have many of their caufes determined by the councell there, I thinke very convenient to be confidered by her Majeftie how farr the contynuance is behoofe full. I will only be bould to fay this much that when by many rayfed bankes, & de fenceis a maritive country is kept fafe from the feas overflowing, becaufe it is now fafe and foe by reafon of the banks & defences hath fo longe remayned it were noe difcretion to take away the causes of fafetie leaft the feas fynding the stays removed the country then againe fynd the danger of inundacions. It cannot blemish any people to be governed, because noe people live orderly without government, & where any govern ment is proved good by the fruits that have enfued it is dangerous upon an oppinion of better fucceffe to exchange it. Therefore where fome have ernestly moved her Majeftie to exempt from that councell the Counties of Gloucester, Worcester, Hereford, Salop, & Monmoth alleadgeing that thofe fhires fhall thereby receave benefitt and her Majeftie eafed of that charge which through the maintenance of that Councell her Highness now fufteyneth. I conccave it very needfull carefully to regarde the many inconveniences which will follow by yelding thereunto, for I am perfwaded that neyther fhall her Majeftie of her prefent charge be thereby any whit eafed, nor the inhabitants of thofe Shires any way benefitted. And for proofe thereof let it firft be confidered how her Majefties expences can be leffened by this courfe. The charge her Majeftie is putt vnto by the Councell in the marches is by alloweing out of her coffers 1000l. for the dyett of that Counceli & wages for the officers of the houfehoide 661. 13s. 4d. for extraordinary expences & 200l. by the yeare for the pencion of her Chiefe Juftice of Chefter. The allowance of her Councell learned, the fees of her Secretorie, Attorney, Solicitor, Chaplaine, purfevants, rydeing charges, and all other expences are payed out of the fynes which be affeffed there upon perfons offending her Majefties laws. If by taking the marcher thires from the Councell any parte of this her Majef ties charge would be leffened, it must be eyther by dyminifheing the number of perfons who ferve or of the allowance which they receave. Touching the Councellors officers & fervants of that Court I will fay only this that although these marcher fhires be exempt & the 12 fhires of Wales left only to this government yet her Majeftie cannot be ferved with fewer perfons then now fhe is & foe fhall not her highnes's charges be eafed by the number. The |