Merchandize which even for our Home-Commodities and where the naturall borne Subject is concerned is much depending upon and regulated by Treaties and Agreements and Negotiations with other Princes and States over which the House of Commons will not pretend to have any authority either for governance or inspection so cannot easily judge what is fit or not fit to be imposed But then for Merchants Strangers and their Goods what colour what shaddow of reason can the House of Commons have to pretend any power to lay a charge upon them and dispose of their Estates The whole Parliament indeed hath power over them as it hath upon whatsoever comes within the Kings Dominions whether Persons or Goods though never so forreign All which while here owe a local Subiection to the Government and Laws of this Kingdom but to either House singly none at all being only subject and bound to submit to what is imposed upon them by the whole State making it a Law but cannot be supposed to be within the disposition and gift of the House of Commons alone Yet they say They have been possessed of this power in all Ages and sind not one grant of Tunnage and Poundage that is not barely the gift of the Commons And well is it proved by the Statute of 3 E. 1. as hath been shewed already by reading Communitas concesserunt and leaving out the principal word Mercatorum which shews it to have been a Grant of the Merchants not of the House of Commons as they would understand it And the several Presidents cited by the Lords When the two Houses did confer and advise together about granting of Aides to the King by which the Lords did prove the power exercised by their Ancestors of delivering their advice and opinions and giving their Votes in point of Subsidies and Taxes they would evade by drawing a contrary inference That is All Aydes said they must begin with the Commons for else the Lords needed not to have conferred but have sent down a Bill So being begun by the Commons the Lords can neither alter nor diminish else why adjust matters by private Conference before-hand if they might have reformed it afterwards The first part of this is acknowledged and the ground-work is good That the Grants must begin with the Commons but the superstructure upon it is very false and deceitful For cleane contrary It is therefore good to adjust the matter beforehand and then make but one worke of it because else the Lords if they be unsatisfied will alter what the House of Commons had taken a great deal of pains to compleat and finish which will be a new business take up more time and cause more trouble Whereas if the Lords had not power to change any thing it were to no purpose to confer and satisfie them before-hand for satisfied or not satisfied they could alter nothing but must sit down and pass whatever the House of Commons had sent up to them This was the true reason of those previous Conferences which sometimes were propounded by the King sometimes desired by the Commons but still to expedite and facilitate the business and only for that end Which makes good all those Presidents viz. 14th 22th 29th 47th and 51th E. 3. the 4th and 6th R. 2. and the 7th of King James which were cited by the Lords concerning those Conferences between the two Houses about matters of Money whether for raising or for disposing of them and leaves them strong evidences and unshaken proofs of that Right and Power and Interest which the House of Lords hath in all such matters whether of Aides given to the King or Moneys raised upon the People for the present defense of the Kingdom and immediately ordered to be applyed to that purpose And this acknowledged even by the House of Commons themselves as appears by their often Addresses to the Lords desiring their help and assistance in it As for the Case of 14 E. 3. it was made use of by the Lords only to prove that there had been Grand trete et parlance entre les Grantz et les Cōes great treating and conferring between them As for what was said after of the Nones being then granted or having been granted before to be then appointed to be sold for the present raising of Money which was mentioned at the Conference as if the Lords had committed some mistake in their citing of this President alters not the Case The Conference about the present raising of Money in that way and the Commons of themselves not able to doe it without the Conjunction of the Lords is a President undeniable of the Lords Power and Interest in matters of that nature Yet who reads the Record thorough will find that there was 40 s. upon the Sack of Wool granted for Custome and 20000 Sacks of Wool to be taken up for the King in whose hands soever found and the price set one mark upon a Sack less than was agreed at Nottingham the Owners to be reimbursed out of the Nones of the second year And this was a proposition made by the Lords and assented to by the Commons Then their observation upon the 22 E. 3. n. 3. must not be passed by They will have it to prove expresly that the Commons granted 3 Fifteens as if they had done it alone without the Lords which how impossible it is need not be said it speaks it self for it cannot be imagined that one House alone could make an Act of Parliament But this was meerly a proposition of the House of Commons in Answer to what they had received in command from the King as appears by the Record it self The words are Sur ce fut commande as Chinalers des Contees et autres des Communes qils se deueroient treter ensemble et prendre bon anys c. Et de se qils ent sentirent le deveroient monstrer a nostre Seigneur le Roy et a les Grants c. Then after some dayes debating it among themselves they came up to the House of Lords and sirst make great complaints of their many pressures then make several requests and declare certain conditions which conditions observed their requests granted they then say they give three fifteens Let any man now judge if this was any more than a bare proposition of the House of Commons which they made to the King and the House of Lords And if this could be the Granting of a Subsidy But indeed the King and Lords consenting and joyning in it It was then a perfect grant setled by a Law To say the truth of this Parliament no great formality was observed in it It was very short by reason of the Plague as was declared at the opening of the next Parliament which was 25. n. 5. in these words Cest assaver l'an de son Regne vintisme second il sist sommondre son Parlement a Westminster lequel sembla puis a luy et a son Conseil que
with a short intermission of time in which the King should not receive it as 5 R. 2. n. 40. there was to be an interruption to the Kings taking of it for a week between the Nativity and the Circumcision And the like 9 K. 2. n. 11. for above a moneth from Midsummer to the first of August and then 13 H. 4. n. 10. they speak out and say they give it the King for a year so always as the same should be confessed to proceed of their own good will and not duty 27 E. 3. n. 9. Sir Bartholomew Burghersh the Kings Chamberlain made a long Speech to both Houses the King present declaring the wrong which the King received from his Enemy of France as the Record stiles him keeping from him that Crown which was his right that the King was resolved to recover it by force and therefore desired the Prelates Lords and Commons to grant unto him the Subsidy of Wools Wool-fells and Leather which was then expired for a longer time Sur queu priere saith the Record eue deliberation entre les ditz Prelatz Grauntz et Cōes sassenterent vnement et granterent au Roi le Subside des Leyns Quirs et Peaux lanuz pur trois anz c. Et que les deniers sourdans de mesme le Subside soient sauuement gardez pur la dite guerre sans ceo qils soient mis en autre oeps Dequent Grante nostre S le Roi enmerciales Seigneurs et Communes The King here makes it his desire to the Lords as well as to the Commons to grant it They confer about it with the Commons and together with them do grant it then appoint how it shall be employed only to the War and to no other use and afterwards receive the Kings thanks for their granting it as well as the Commons How then can it be said that the Lords must have nothing to do with these Grants But then will it not be inferred that if it be as much in the gift of the Lords as of the Commons the Lords may not only moderate and abate but also augment the gift and propose it first in their House and give away the Peoples money at their pleasure It was certainly so in the beginning but now not at all so as the saying is Modus Conventio vincunt legem Agreement alters right And though the certain time when this Agreement was first made and when this was first altered and all the circumstances of that first Alteration and of that Agreement cannot be made out by the Records yet it may be made out that it was before the 9th of H. 4. n. 21 22. when the Indempnity of the Lords and Commons and of the Lords aswel as of the Commons was declared and setled by a Law made that Parliament for that purpose and the Law hath that title Indempnitee des Seigneurs et Communes and is abundantly sufficient to settle and establish the manner of granting Subsidies in Parliament and the power of proceeding of either House in passing Acts of that nature were there nothing else The Record sets forth That the King coming to the Lords House in the Abbey at Glocester and communication there had of the state of the Kingdom then environed with Enemies and how behooveful it was to give a notable aid to the King to enable him to resist those Enemies the Lords being demanded what aid did severally give their opinions That less would not serve then a tenth and half of the Cities and Burroughs and a fifteenth and half of the rest of the Laity and to continue for two years the Subsidy of Wools Wool fells and Leather and the 3 d. Tunnage and poundage for other Commodities which the King commanded should be signified to the House of Commons And a message was thereupon sent to them that they should send up some of their number to heare what from the King would be said unto them Who sent up a dozen of their Members and to them was declared what had been moved to the Lords and what their Lordships had answered which they were willed to report to their House that so they might come to a conformity with the sence of the Lords The report being made to the Commons Ils ent furent saith the Record grandement destourbez en disant et affermant ce estre en grant prejudice et derogation de lour libertees they were greatly disturbed saying and affirming that this was a great prejudice and derogation to their liberties which represented to the King and he not willing that any thing should be done that might at present or in after times turn to the prejudice of their Liberties N'encontre les libertees de les seigneurs susdits nor against the liberty and freedom of the foresaid Lords Wills Grants and Declares with the advice and consent of the Lords themselves That in this and all future Parliaments it shall be lawful for the Lords to debate and commune among themselves of the State of the Kingdom and the necessary remedies And likewise the Commons to do the same by themselves And that neither the Lords nor the Commons shall acquaint the King with any Grant made by the Commons and by the Lords assented unto nor with any of the Communications concerning that Grant till the Lords and Commons themselves come to an Agreement and accord in that behalf and then to be in the manner and form as hath been accustomed that is to say by the mouth of the Speaker of the House of Commons for the time being To the end that they the Lords and Commons may receive their thanks from our Lord the King It being moreover the will of the King by the assent of the said Lords that the foresaid Communication of this present Parliament shall not be drawn into Example for the time to come nor be made use of neither in this nor in any future Parliament to the prejudice or derogation of the liberty of the State Then n. 23. is added How the last day of the Parliament the Speaker of the House of Commons made it his prayer to the King that he would grant unto that House leave to depart in as much freedome as others had formerly done The King answers That it pleased him well and that he had alwayes been of that mind Upon this memorable Record wee may make many Observations and from them draw several Conclusions As 1. That it was even before that time held to be against the Priviledge of the House of Commons and a derogation to them for the Lords to be Beginners in moving them to lay any charge upon the People And that it is the Priviledge of the House of Commons to have it arise from themselves 2. That it is so acknowledged by the King and Lords 3. That upon the Complaint of the Commons that it is a breach of their Priviledge for the Lords to begin and propound the granting of a Subsidy and the King and
Robbed and Plundered And all the other Acts of Parliament run so yet sure no body can think it was only their House of Commons that made those Laws but such was then the form and stile in the making of all their Laws All the rest of the Presidents cited by him in the times of H. 8. E. 6. Qu. M. Qu. Eliz. Car. 1. and Car. 2. are by his own confession still with the assent of the Lords and how little that makes for his purpose needs not that any more be said to it As for that of 1 Qu. Eliz. when the Lords did respite the payment of the Subsidy for some time as to Cheshire and Wales which is an undeniable President of their easing the Subject upon occasion it doth not at all alter the Case what was said of their address to the Queene and of the Entry in the Journall Booke of her pleasure signified for it For that was but a civill respect to her that they would not diminish her profit in any thing without acquainting her with it and the having her leave But still it was done by their authority and it was an Act of that House And the power to doe it was then well knowne as appears by the Petition of all the Inhabitants of Wales and Cheshire presented to the Lords for that purpose by the hands of the Knights and Burgesses serving for them in the House of Commons that Parliament nor would they else have Petitioned the Lords nor durst the Members of the House of Gommons that represented them in that House have delivered it But admit there were no Presidents of the Lords giving ease to the People and making abatements of a Change laide by the House of Commons whether upon Merchandize or any thing else and that noe complaint had ever beene and so no alteration or amendment ever made It doth not follow that therefore they have not power to doe it when there is cause for it and that there are complaints of Excesse or Inequality in a Tax as now there were complaints sufficient by all sorts of People who dealt in those Commodities upon which the Impositions had beene laide Planters Merchants and Tradesmen Therefore the Lords say they insist and rely more upon the Rationality and intruth Necessity of the thing for the good of the King and Kingdome then upon any President that can be for it And yet Presidents wee see there are several ones However they say it were enough for their justification if there be none against it and there could be but of one of these two kinds either that the Lords have of themselves disclaimed such a power or that it hath beene denyed them when they have claimed it and whoever sheweth one of either Erit mihi magnus Apollo By what hath beene said appears how little reason the Manager had to brag of a 300 years uninterrupted possession of this Priviledge claimed by the House of Commons to be the sole absolute and uncontrouled Taxers of the People not only in their Commerce and Trading but in all Money matters For to that large extent hath he now stretched the question which he narrowed in the beginning And so the Lords must not in any case interpose to give relief and ease to the People if there be never so much cause But either they must not joyne to give any Aide to the King and so the King be unsupplied or they must be made Instruments against their Judgements and against their certaine knowledge to oppress the People which all unequal Taxes doe So if they deny passage to the Bill the King suffers If they give it passage and make it a Law it wrings the People Yet this must be or else saith the Manager The Lords doe what in them lyes to put an end to all further Transactions betweene the Houses in matter of Money he might as well have said in all matters of Parliament for that must be the consequence And he is desired to consider where the fault will lye and who demands unreasonable things such as Nahash did of the men of Jabesh Gilead to thrust out their right eyes So would this even thrust out one of the eyes of the Parliament make the House of Lords to be nothing an insignificant thing of no use no advantage to the Kingdome Therefore it is hoped the consideration will be taken on the other side though an Item be given to the Lords to consider of it implying that since It may put an end to all transactions betweene the Houses in matter of Money the Lords should apprehend that the House of Commons might perhaps admit of no more Conferences in any business of this nature but would doe it of themselves without communicating it to them who then could not so much as take notice that such a thing was in agitation But there are Presidents that the Lords have of themselves uncalled taken notice of and interposed in debates of that nature which have beene in the House of Commons And when contests and differences have risen there and that the House of Commons could not come to any resolution among themselves they have composed and setled the business and have directed and appointed what should be done As 3 H. 6. The Commons with the Lords assent had granted a Subsidy of 33 s. 4 d. upon every Sack of Wool as much upon every 240 Woolfells 3 s. upon a Tun of Wine and upon all other Merchandize 12 d. in the pound under the condition saith the Record That every Merchant stranger coming into the Kingdome should within 15 dayes be under Hoost and within 40 dayes after his being so under Hoost should sell off all his Merchandize and what after that remained unsold should be forfeited to the King and likewise should pay forty three shillings four pence that was 10 s. more than the English upon every Sack of Wool and every 240 Woolfells And if these conditions were not observed the whole grant of Tunnage and Poundage of the English Merchant to be void and of no value These Conditions it seems were not observed and great stir there was about it in the House of Commons the next Parliament which was 4 H. 6. as appears by the Record which saith thus Item pro eo qd inter Cōes Parlamenti praedicti diversae opiniones de super concessione levatione Subsidii Tonagii Pondagii Domino Regi in Parlamento suo ultimo tento concessi motae fuerunt ut dicebatur subortae visa tandem diligenter examinata forma concessionis Subsidii praedicti in praesenti Parlamento habita quoque inde Justiciar aliorum Legis peritorum deliberatione matura consideratum fuit plenius declaratum per magnificum Principem Ducem Bedeord Commissarium Domini Regis ac faeteros Dominos Spirituales Temporales in eodem praesenti Parlamento existentes qd Subsidium praedictum ad opus praefati Domini Regis omnino esset solvendum levandum aliquibus
all which noe more need be replyed than what hath beene already said That in all things of which the Houses can take cognisance they have a Deliberative voice as well as a Negative and by the same reason that the one is taken away the other may be taken away likewise But of these things they have noe cognisance not of the Pardon because it is the King 's free gift and as for the Subsidy of the Clergy the Clergy could tell them 4 R. 2. n. 13 14. when the House of Commons had offered to grant an Aide if the Clergy would pay a third part of it who held a third part of the Realme The Clergy answered they were not to grant Aides by Parliament and therefore willed the Commons to doe their duties and they would doe theirs As to the 5th where the Lords said That the Commons might allow them the same Priviledge of altering and amending of Bills of Money that they doe the Commoas in Bills of Judicature The Manager will take it for an offer as if the Lords would compound upon terms But he is mistaken The Lords very well know that it is not Parliamentary to make bargaines They neither desire to have more Power in either the one or the other Moneys or Judicature than doth of right belong unto them nor will they depart with that which doth And to that which was said of Forbearing the instances hoping they will reforme All they will say is this They know not wherein they have done amiss To the 6th of the Ignoble Choice which the Lords say they are put to of either not supplying the King or consenting to wayes which their owne Judgement and the Good of the Government and of the People will not admit to which are made two Objections 1. That thereby the Lords make their Judgements the measure of the wellfare of the People 2. That by that rule they may as well encrease as abate the Taxes And then he endeavours to retort this upon the Lords saying That the ignoble choice is left by it to the King and the People That so small an Aide must be demanded by him and given by them as not to be capable of diminution or otherwise it must be subject to the Lords re-examination whose proportions in the Taxes in comparison to what the Commonalty pay is inconsiderable To this will be replyed in the same order 1. That it is most agreeable to reason that their Lordships being to act in the concernes of the People to make Lawes by which a proportion of their Estates is to be disposed of for publick use for the necessities of the King and Government and consequently for the preservation of the whole they should apply the best of their Judgements to do it so as it may best consist with the wellfare of the People which wellfare they must so measure and so guide and regulate their determinations by it that what they doe may not be hurtful to it Therefore they may without vanity grant what is said That they doe in that sense make their Judgments the measure of the wellfare of the Commons of England To his second objection their Lordships say as before that it is out of the Case they pretend not to a Power of encreasing Taxes And then for matter of payment the House of Lords indeed will not compare with the whole Commonalty nor doe they in their Parliamentary capacity looke upon the Commonalty of England in a distinct notion from themselves conceiving themselves trusted for them and interested in their concernments as much as any House of Commons but they say they pay their proportion as well as the House of Commons And which of the Houses payes most is not material both certainly paying what is their due to pay As to the 7th concerning positive Assertions It is true they have on both sides beene positive enough but which hath better maintained their Assertions and made them good and which hath better proved three hundred years usage let neither party be Judge but the indifferent looker on who many times sees more than the Gamesters As to what was said in Answer to the 8th and 9th of the Lords Reasons it not signifying any thing as to the decision of the matter in question but rather something savouring of harshness and of unkindness as That this House of Commons stands in no need of their Lordships recommendation of it self deserving so well both of King and People and then concluding with an Item to the Lords To follow the wisdome of their Ancestors as implying they did not so Expressions fitter to be forgotten than to be replyed unto All this therefore shall be past over with Silence in pursuance of Solomon's counsel To leave off Contention before it be meddled with The summe of all is That the Lords are not at all convinced with either the Arguments or Presidents brought by the House of Commons to believe that ever they had or that it is agreeable to Reason or consisting with the Nature of Parliaments and the general good of the Kingdome that they should have such a Fundamental Right as they pretend to in Bills of Rates and Impositions upon Merchandize as to the Matter Measure and Time for those are their words They to be the sole Arbiters for the laying on of what Rates and Impositions they think good in those three respects And the House of Peers not to intermeddle nor have Power to make any alteration and abatement in them when once resolved by the House of Commons be there never so much reason nay a necessity so to doe This can no wayes be agreed to And the Lords do say as to what concernes their Rights and Priviledges first in Generall That they pretend not to be the beginners of any Charge to be laide upon the Estates of the Subject nor to encrease and augment any that is already laide by the House of Commons This they conceive to be against the intendment of the Law 9 H. 4. and the practice of Parliament ever since But they say in the second place as to this Particular now in Question of Tunnage and Poundage That they do challenge a Right and Liberty to have the use of their Reason when such Bills come to them from the House of Commons to judge of the equality of the Rates imposed to moderate and reduce them to a due proportion if they find any too high and to receive the complaints and information of Merchants and Persons concerned or of any other who is experienced in Trade thereby to regulate their Proceedings in the consideration of those Bills that they may so frame and model them before they give their Assent unto them as to be sure they may be such as Trade shall not suffer and yet the King be supplyed and those great Ends complied with for the generall Good and Benefit of the Kingdome for which those Subsidies are given This the Lords doe affirme to be the undoubted Right and Priviledge of the House of Peeres and an Essential part of that Power and Authority which the Constitution of this Government and the Custome and usage of Parliament hath lodged there for the Good of the Nation and which hath so continued and beene enjoyed and exercised by them for that End from the very beginning both of Parliaments and Government FINIS ERRATA PAg. 87. li. 1. for Bedcord reade Bedfordiae and li. 3. for saeteros reade caeleros
THE Case stated OF THE JURISDICTION OF THE House of LORDS In the point of IMPOSITIONS LONDON Printed in the Year 1676. The Case stated of the Jurisdiction of the House of Lords in the point of Impositions As the Lords are of nothing more desirous than of keeping a good correspondence with the House of Commons so are they and have ever been most careful to take nothing from the House of Commons which belongs unto them nor to assume any thing to themselves but what hath ever been their undoubted right and never so much as questioned to their Ancestors in any preceding Parliament And to have the free use of their reason to disapprove and disallow all or any part of any thing propounded unto them for the Publick Service which they in their Judgments believe not to be conducing to it or so to alter and amend it as to make it such is so proper so essential so necessary to the constitution of the House of Lords as they do not think they are a House of Parliament or can act as a House of Parliament if this be denyed them Now they conceive the point in question betweene them and the House of Commons to be of this very nature The House of Commons sent up a Bill to them to lay Rates and Impositions upon several sorts of Merchandize The Merchants Petition the Lords against many particulars in that Bill shew the inequality and disproportion of the Rates imposed upon certain Commodities to be such as if not altered and some which were to high brought down to hold a true proportion with others which the House of Commons had set low it would have utterly ruined the whole Trade of those Commodities and have brought an irreparable prejudice upon all our Plantations and consequently upon the whole Kingdom that of those Commodities being the principal Trade of the Plantations and that of the Plantations of most considerable part of the Trade of the Kingdom The Lords were so fully convinced with the arguments and demonstrations of the Merchants and thereupon judged it of such absolute necessity to make some alterations in the Bill and to lower some of those rates that they did so and the Bill so altered and amended they returned to the House of Commons giving withall their reasons for those Amendments and Alterations which was done at a Conference The House of Commons took this ill and presently passed a Vote Declaring it to be a fundamental right lodged in their House alone to impose Rates upon Merchandize as to Matter Measure and Time and to pass Bills for that purpose and this in exclusion of the House of Lords Which Resolution of theirs was by them delivered back at a Conference and withal some particular reasons given to justifie their Rates Imposed in opposition to the alterations made by the Lords But the maine Objection which they still urged and with which they closed every Period of their Discourse was That the Lords had nothing to do with the altering of any Rate imposed by them upon Merchandize The Lords easily apprehended the ill consequence of such a Maxim how it did shake the very foundation of Parliament and utterly over-throw the Being of their House rendring it altogether uselesse to the general good of the Nation Because it could then contribute nothing to what is of so great consequence to it as is the carrying on of Trade and the just ballancing of it if so be any slip or mistake or error should happen to have been in what had passed to that purpose in the House of Commons as no Society of men but may erre And therein consists the excellency of the constitution of our Government that every Law hath first in each House of Parliament three Examens like so many passings through the fire to refine and purifie it And that done in one House then the other House takes it and examines it over again in like manner three several times And if any dross remain or any thing be yet wanting to make it better and fitter to pass care is there taken to do all that is further needful so one House is both a Check and a help to the other which is the great security of the Kingdom This the Lords saw must inevitably cease And therefore they judged it to be of absolute present necessity in the first place to make that sure and assert a Priviledg so undoubtedly theirs and indispensably necessary for the good of the Publick of King People and Parliament which they did by a Vote That the power exercised by the House of Peers in making the Amendments and Abatements in that Bill was a Fundamental inherent and undoubted right of the House of Peers from which they could not depart This Vote backt with many Reasons and confirmed by Presidents they communicate to the House of Commons likewise at a Conference which yet did not satisfie as appeared by what was delivered by them at an other Conference which presently followed For they begin with telling the Lords That three things did surprize the Commons at the former Conference 1st That expecting a discourse upon the Amendments of the Bill they met with nothing but a debate for the Liberties of their House and a demand of the delivering up of those Liberties by a Publick acknowledgment before any further discourse upon the Bill 2dly That their Lordships should declare so fixed a resolution before hearing what could be replyed by the Commons 3dly That their Lordships should be so easily induced to take up that Resolution if they have no other motive than the Reasons and Presidents which they had produced But why they should be so surprized with these three things is not easie to be imagined For certainly no man ought to be surprized with what he might rationally expect And first that the Lords should trouble themselves to answer particular Objections to particular points before they had removed one main one which alone took off all possibility of Agreement and was by the Commons generally applyed and pressed by them upon every point as it had been a very fruitless labour of their Lordships so it could not be with any reason expected from them And as little reason had they to be surprized with the second thing for nothing is more ordinary in the proceedings of both Houses than to be most jealous of their Priviledges not to suffer them so much as to be disputed but upon the least attempt against them presently to assert them with vehemence The House of Commons themselves gave an example of it in this very business but at the foregoing Conference when upon the Lords making an abatement in these Rates they presently come and tell them That the question being concerning Rates and Impositions upon Merchandize there is in this a Fundamental right in the House of Commons both as to the Matter and the Measure and the Time unalterable and which they not part with Here was a Resolution fixed and setled
The Commons with the Assent of the Lords do give c. It doth not at all follow but that the Lords have still power to alter and qualifie the gift before they will assent to it Nay if it be so that they must assent to it before the House of Commons can give it as that will not be denyed it doth then necessarily follow that if it be not such as they can approve of in their Judgments when it comes from the House of Commons to them they must have power to alter it and make it such as that they may assent to it except they must be denyed the use of their reason which would be a severe imposing upon a House of Parliament and an absurd one A Councel not to be suffered to debate and consider of what is proposed to it and what advice it shall give to him who hath called it for that purpose to receive its advice and so to frame it and mould it as that it may be fit to be advised This is to make a Councel to be no Councel it is what the Logicians call Contradictio in adjecto a quality inconsisting with the Subject as an Orator to be dumb an Auditor to be deaf a Watchman to be blind so a Councel to be without power to consider debate and satisfie it self of the Counsel that it must give And it is directly contrary to the Writ which convenes and constitutes the Parliament The Lords are summoned by it Ad tractandum consilium impendendum de rebus arduis but they must sit there as so many Parish Clerks only to say Amen to what the House of Commons hath resolved and neither tractare nor consilium impendere And what a Pageantry were this to read a Bill of Subsidy solemnly once twice thrice commit it perhaps to a Committee of the whole House make a great business and when all is done after all this stir they must assent to it and pass it just as it came at first from the House of Commons be the mistakes in it never so great and the ill consequences of it never so ruinous Can a rational man believe that a House of Parliament should be so constituted to act against the nature of a Parliament Yes will they say for both Houses do the same in some cases They can alter nothing in the Subsidy of the Clergy nor in an Act for a General Pardon and yet they give their Assents to pass them for Laws Which is very true but makes nothing to this Case for those are things Eccentrick to Parliament they have their motion in an other Sphere The Convocation gives the one The King of his free Grace bestows the other the Parliament only gives them the force of a Law and may chuse whether or no it will do that when they are prepared to their hands but it cannot meddle with the things themselves to make them this way or that way But now what is said here is to be understood of things properly within the cognizance of the Parliament and that receive their rise and progress there that is to say in one of the two Houses for the two Houses make up but one Parliament And of such things where either House is to give an assent to them that House may debate them and alter and change them as it thinks good And it mends not the matter to say That House may reject all as the King may any Bill presented to him which hath passed both Houses For by the constitution of the Government the King hath only a Negative voice but by the same constitution of Government the Parliament that is either House in its Legislative capacity hath not only a Negative but also a Deliberative voice in all things of which it is cognizable And of nothing is it more cognizable than of what concerns Trade which is the wealth and strength and support of the Kingdom for which concernments they are principally called and summoned by the King 's Writ But how this particular of Trade and Impositions upon Merchandize for the guarding of the Seas and securing Merchants Ships in their passage out and home for carrying on of Trade came to be lodged in the care and power of the Parliament and in what manner that power and care was first executed by them which was then equally in both Houses to begin and propose whatever either House thought fit and how afterwards it came to be appropriated to the House of Commons to be the first movers in those Impositions and the House of Lords to reserve to themselves only a power to qualifie and moderate the Sums imposed and bring them to that due measure and proportion which would be most convenient and advantageous to the Trade of the Kingdom and if any error had slipped in at the first framing and composing of a Bill passed for that purpose in the House of Commons the Lords to reform and amend it This we say is well worth the inquiry It appears by the Records that it was at first a meer act of State the King with the advice of his great Councel the Spiritual and Temporal Lords contracting with Merchants that they paying a certain rate for their Commodities whether exported or imported he would undertake to waft over their Ships and secure them from danger in their passage Such was that agreement recited in the Patent Roll of 3 E. 1. m. 1. n. 1. which by him that managed the Conference for the House of Commons was much mistaken first upon point of Grammar the words of it he acknowledges to be as we say that Magnates Communitas concesserunt But Concesserunt he will have to relate only to Communitas which is certainly false Grammar and then Communitas he expounds to be the Commons which is a mistake in the matter and true sence of the Record As for his Grammatical mistake in the Syntaxis and his so construing the Record he must give us leave to say that he goes contrary to an universal known Rule in the Syntaxis of all Languages that ever were yet spoken which is this That where there are several Nominative Cases joyned together with a Conjunction copulative they all do equally relate to the Verbe so Magnates here must have the same influence upon the Verbe Concesserunt as Communitas and they do alike Concedere But then what will be said if Communitas in that Record be not the Commons as is surmised but Communitas Mercatorum the Community of Merchants which any body would have seen who had consulted the Record and not relyed wholly upon Sir Edward Cooke's misreciting it in Print in those two mentioned places the 2d part of the Institutes p. 531. and the 4th part p. 29. But to give a true account of the marter There are two Records of this one in the Patent Roll 3 E. 1. m. 1. n. 1. in Latin which is something defaced yet so much of it legible as to serve for the
Lords joyning and so declaring it likewise It becomes here a Law that is a Declaratory Law of a thing which was before not a Creating Law of a new thing 4. For it appears to have been a thing formerly so setled in regard it is here declared to be the manner and forme accustomed for the Speaker of the House of Commons to be the Person from whom the King must receive the notice of such a Grant and to be he that must present it which shews that the House of Commons hath something proper and peculiar unto them in this Grant since it must be received from their hand for it is their act the presenting of it and their Speaker is but the Conduit-pipe to convey it from them And this can only be that they are to have the beginning of it to be the first Movers and Proposers of all such Grants But all things else concerning those Grants as the preparing and modelling and fitting them in all circumstances and reducing the sums to a just and due measure if there be cause for it and then the giving them to the King that is making a Law whereby they are given to him and that which was before part of the Estate of the Subject to be now transferred to the King and made to be his Right and his proper goods and he impowered to levy it this wee say to be still the joynt-work of both Houses and equally in the one as in the other For in the fifth place it is manifest hence likewise that the Lords have their share in the Grant and that they have power to make such alteration in it as may fit it for their assent for that Act of Parliament saith 1. That they shall debate it and confer of it among themselves 2. They may then so alter it and frame it as that they may assent to it which is the end of their debating it 3. They must assent to it before the Speaker of the House of Commons can present it 4. The King is to give thanks for it to them as well as to the Commons And it cannot be thought that he will thank them for nothing that is for a thing in which they have power to do nothing 5. And lastly The King by this Act provides for the preservation of the Priviledge and Liberty of the House of Lords in those Grants unto him as well as of the House of Commons which had been infringed And what was this Liberty but freedom of debate not to be locked up any more with a previous Vote as they were then upon the King 's propounding the matter to them and they coming to a present resolution in the Kings presence and accordingly is the Act intituled Indemnitee des Seignours et Communes But may it not still be objected that by what hath been hitherto said the Lords may adde to as well as abate and take from the charge Not at all For it hath been said they cannot be the first movers and beginners of any charge upon the People And then they cannot adde any thing For so much as they adde to any Sum proposed by the Commons they do for so much begin a new charge therefore in all their communings and debatings the result can be only to moderate and abate the charge if there be cause for it not to augment it As in 4 R. 2. n. 11 12. A great Sum having been demanded by the King and the great Officers and Councel having delivered in a Schedule containing divers particular charges amounting to 150000 l. The Commons come before the Lords and desire of them a moderation of that Sum and that it would please them to consider how it might be levied So certainly it was then the opinion of the House of Commons that the Lords had power to consider of and lessen the charge of the People and to moderate demands for they desire them to exercise that power But it will be said This was demanded onely by the King but the House of Commons had not imposed that Summe for then their Lordships could not have medled with lessening it This doth not at all alter the Case being it was in order to a Bill to be passed for laying such a Tax upon the People But to prove that they have abated of a Summe imposed by the House of Commons Wee will goe no further then this very Parliament in the 14th year of the King in the Bill for enlarging and repairing of common High-wayes for which purpose the House of Commons had agreed upon a Rate of 12 d. in the Pound to be levied upon the Inhabitants of Parishes contributory to those Repairs the Lords brought it down to 6 d. And the House of Commons agreed to it But perhaps they will say That this is not to the purpose for that the Point in controversie is not concerning the Abatement of any charge that should be laid in general upon the Subject but only for that which is imposed upon Merchandize As if the one did not necessarily follow the other For if the Lords can abate Taxes at large laid upon the People with much stronger reason may they abate an Imposition upon Merchandize exported or Imported And if they have not power to abate in this which concerns only Merchants much less can it be thought they should doe it in the other which concerns the whole Kingdome Which the House of Commons did well foresee and therefore it is that they are so Positive in their Assertion that It is their fundamental right to impose all charge upon Merchandize for Matter Measure and Time unalterably as to the Lords which how they doe make good and maintaine by their Presidents and Arguments wee will now in few words examine though by what hath been already said the contrary seems to have been sufficiently proved It is true that at the former Conference the Lords were told That the House of Commons had narrowed the ground and reduced the Question to this single point of laying rates and impositions upon Merehandize only and not upon the Subject in general Wherein the Lords conceive themselves very kindly dealt with That the House of Commons hath been pleased to make choice of that to be disputed by them whereto their Lordships have the clearest right to be at least Joynt-tennants with them and they the least pretensions to challenge it wholly to themselves For in charging the People the House of Commons will perhaps say they ought to be the sole Arbiters in regard they take upon them to be their sole Representatives and to be Trustees for them and trusted by them with all their concerns which yet will not be granted that they represent all the People for how many thousands are there in every County whom they doe not Represent and who have no voice in their Elections and so confer no trust upon them but they cannot have any the least pretensions to be sole in laying burthens upon Trade and Rates upon
Customes and a Subsidy of Tunnage and Poundage The Customes he saith are the Kings inheritance and due to him by the Common Law and therefore the first Statute that mentions Customes 14 E. 3. he saith doth not grant any thing but abridges the Kings power that he shall not take more than half a mark for a Sack of Wooll and half a mark for a last of Leather But the Subsidy is a Tax assessed by Parliament and Granted to the King by the Commons for his life onely for defence of the Seas The one is Inheritance the other is a Grant but to define and describe what kinde of Grant and in what manner granted whether by one or both Houses with all the circumstances of it was certainly not at all in that Reverend Judges thought This then is no such Judicial determination of the Question as they would make it From thence they come to the Provisoes in the Bill of 1 H. 8. in which as in the Bill it self and their conclusion upon it viz. That they are of no force unless it be against the Lords there is certainly a great mistake They say that by the Lords Journal the Case is this That the Bill did not pass till the 3 of H. 8. That the Lords assented to it the 43d day of the Parliament That the 45th day two provisoes came in one touching the Merchants of the Hans Towns the other touching the Merchants of the Staple at Calais both signed by the King And that the Chancellor and Bishop of Winton did declare that the signing of those Provisoes by the Kings own hand was enough without the consent of either House Then they give reasons why they prove nothing 1. For that they were signed by the King 2. For that they were brought in against all course of Parliaments after the Bill passed 3. That the Provisoes were nothing but a saving of former rights 4. That the Journal declares that the King without those Provisoes might have done the same thing by his Prerogative This is the Narrative which they gave us The truth is this In the first place the Lords did not cite nor insist upon two Provisoes but onely upon one that which concerned the Merchants of the Staple which Proviso was added then by the House of Lords who meddled not with that which concerned the Hans Towns which was a Proviso sent up with the Bill from the House of Commons The progress of this Bill was thus all of it in the Parliament of 1 H. 8. for that which was said at the Conference that the Bill it self passed not till the 3 H. 8. is a gross mistake That was another Bill of Subsidy which was given that Parliament 3 H. 8. and it is true wee find in the Journal that the 45th day of that Parliament of 3 tio the Chancellor and Bishop of Winchester did declare such a thing concerning the Merchants of the Hans Towns in these words Et dictum decretum est per Dominum Cancellarium Episcopum Winton quoad Provis pro Mercatoribus de Hansa quod Provis pro ipsis per ipsum Regem signatum sufficiet eis absque assensu Dominorum Domus Communis These were strangers with whom the Parliament had nothing to doe so such a Declaration might be concerning them But the Provisoe insisted upon by the Lords was concerning the Merchants of the Staple natural borne Subjects And besides that which the House of Commons went upon at the Conference was clean another thing a Provisoe relating to an other Bill and passed in an other Parliament For 1 H. 8. 23d day of the Parliament and 16th of Febr. upon a Saturday this Bill which is now in question came up to the Lords from the House of Commons cum Proviso pro Mercatoribus de la Hansa Theutonicorum at the head of this Proviso are these words Soit baille aux Seigneurs and at the foot these Les Seigneurs ont assentus Then the 27th day of the Parliament which was Thursday the 21 of Febr. the Lords passed the Provisoe for the Merchants of the Staple which had begun in their House the words are Item Proviso pro Mercatoribus Stapule de Calais lecta est secundo tertio missa in Domum inferiorem per Clericum Coronae and these words at the top of it Soit baille aux Communs and at the foot these A Cette provision les Côes sont assentus Then the 29th day which was the last day of the Parliament the Bill with the two Provisoes annexed were delivered to Sir Thomas Lovel at the Bar Actus Subsidii cum duabus Provis annex liberati Thomae Lovel militi cum Sociis ad Barram saith the Journal This bare relation justifies enough the Lords citing of that Proviso by which the Merchants of Calais are excepted from their being lyable to any of the payments imposed by that Bill of Subsidy of 1 mo H 8. To say it was but a Saving of former rights signifies nothing for no question the Lords would not have done it without good cause for it nor will they at any time make any abatement but for good cause but still they saved to the Merchants of England their right which the Commons had taken away And then here was nothing against the course of Parliaments the Proviso regularly added by the Lords and sent down to the House of Commons in due manner and afterwards passed by the King with the Bill Then for the Kings signing it which the Manager of the Conference made to be so great a matter if he would have perused the Records of H. 8. he would have seen that in those times the King still signed all the Bills he passed and all the Provisoes annexed he signed likewise with his own hand only Bills of Subsidy he signed not But the Provisoes annexed to Bills of Subsidy which were to ease and discharge any persons those he also signed and therefore the other Provisoe concerning the Hans-Towns which was annexed to the Bill when it came up from the House of Commons was likewise signed by the King So as the Kings signing this Provisoe concerning the Merchants of Calais cited by the Lords alters not the Case and makes nothing against its proving an inherent Power and Authority to be in the House of Peers of adding such Provisoes or making abatements in Bills of Subsidy whensoever they see cause for it As they did 1 Eliz. when they gave respite to the Counties of Wales and the County Palatine of Chester for paying the Subsidy given that Parliament a year after all the rest of the Kingdom which was an easing of them for that time And for what is said of the Grant 1 H. 8. that it was of the Commons alone it was as many other Grants then were The Commons by the assent of the Lords c. which expression is sometimes used as signifying the same thing with the other We the Lords and Commons do grant c.
a case you might deceive a King in giving your flattering consent to that which you know might move the People generally to grudge and murmure at it And so should the King sind himself deceived in his Calcul and the People likewise be grieved in their hearts And a little after he added these words I doe not desire you should yield to that extreeme in giving more than is sit for that were to give me a Purse with a Knife That wise King knew the inconvenience of straining that string too much winding it so high as to endanger the cracking Therefore if any mistake have beene as among the wisest of men there may be the Lords are there to discharge their trust and so rectifie so moderate so proportion the payments to the ability of them that are to make those payments as that they may not be ruined but be able to discharge these now and the like hereafter when there will be need againe Which answers the second part of what is objected That it would be a double Check upon His Majesties affairs if he may not relye upon the Quantum when once his People have given it So far from it that it will be an advantage to His Majesties affairs when the Quantum is made such as he shall be sure to receive it and that he may thereby have both the Purse and the hearts of the People And as to this particular now in question the Quantum upon the whole matter would not have beene less to the King but much greater at the yeares end For if Trade be over-burthened once it sinks and yields nothing and noe where is the Proverbe more truely verified That light gaine makes the heavy Purse than in the returne upon Trade to make it quick and easie which cannot be if it be over-charged 2dly As to the Writ of Summons which the Manager acknowledgeth to be de quibusdam arduis but that it must be understood of such things as by course of Parliament are proper to Parliament which matter of Money as he will understand it is not to the House of Lords else saith he the Commons may aswel intitle themselves to Judicature for they are also called to treate de quibusdam arduis To this is replied that Quaedam ardud comprizeth all that the Parliament takes cognisance of which are the great and arduous affairs of the Kingdome as it is described 9 H. 4. n. 21 22. L'estat du Royalme et la remedie a ce besoignable whatever concerns the state of the Kingdome and the necessary remedies to it In all these things both Houses are equally concerned and equally called by the King to consider and debate them and to give him their advise upon them And there can be nothing of more importance to the state of the Kingdome and consequently more proper for the care and inspection of both Houses than the supply of the King with Moneys necessary to support the Government make Provision of Ships Armes Stores and all things needfull for the defence of the Kingdome and to defray all other charges incident to the Crowne But the exercising of a Judicature is clean of another nature and the proper worke of a Court of Justice which the House of Peeres is naturally by the Fundamental Constitution of it not that the Parliament is called for that purpose but the Parliament being called and met according to the Call the House of Peeres then becomes a Court of Justice for the exercise of a Judicial power in those extraordinary Cases which by the Custome and usage of Parliament are within their cognisance and Jurisdiction and have beene so from the beginning long before there ever was a House of Commons And therefore the Power of Judicature cannot be within the Quibusdam arduis of which the House of Commons is to treate Then for the third Reason to which was given a Rhetorical answer for there was the Rhetorick The Lords had by way of Question proposed to know when they had appropriated this Right of Imposing upon Merchandizes to the Commons in exclusion of themselves which well they might having proved it to have been originally in them and then it was but reason to put the Commons to shew when they lost it according to that knowne Maxime Quod nostrum est sine facto seu defectu nostro amitti sen in alienum transferri non potest This was no Rhetorical Question but the Answer was Rhetorical to give the Lords a Quid pro Quo with an other Question and ask Where was the Record by which the Commons subâ—itted that Judicature should be appropriated to the Lords in exclusion of themselves And that upon the back of that Record their Lordships would find the other endorsed This is a fine insinuation that all is but a fiction of their Lordships Title to the sole Judicature but it will be made out that they can shew a good title to it not onely of Custome and Prescription from the very beginning of Parliaments before there was a House of Commons but a good Law made in the Case the strongest kind of Law that is to say to declare a right not to constitute it for that Right had beene acknowledged and practised time out of mind beyond all Record And this was 1 H. 4. The Commons then come up and represent to the King and Lords Que comme les Jugemens appartiennent seulement an Roi et as Seigneurs et nient as Cöes c. That as Judgements belong onely to the King and Lords and not to the Commons so they pray that noe Entry may be made in Parliament to make them parties now or â—…ter to any Judgement given or to 〈◊〉 given To which was answered That the Commons were but Petitioners and that the King and Lords have at all times had and are to have the right of Judicature in Parliament which Order the King will have to be observed in all future times This was a perfect Law and the same formality used to it as went to the making of all the Laws of those times And the Record of this is upon the Roll in the Tower and yet noe endorsing upon it of the other Record to make the Commons the sole unlimitted and uncontroulable disposers of the Peoples Money For that indeed is onely to be found upon the back side of the Salique Law as the Gentleman said of a thing that was noe where to be found from whom this whole conceit is borrowed To the 4th of the Lords saying That by the same reason of denying them Power to abate they may deny them Power to reject the whole and at last take away their Negative voice and the Managers answering this with instances of the King 's Negative voice to Bills and that of the two Houses to the King's Pardon and the Clergies Subsidy who can each of them reject the whole yet cannot alter any part and their Negative voices not be in danger for all that To