disproving of Sir Edward Cooke's allegation and the Comment now made upon it for it runs thus Rex omnibus c. cum Praelati Magnates ac tota Communitas Mercatorum Regni nostri nobis concesserint quandam torn out coriis tam in Anglia c. in forma subscripta videlicet de quolibet torn out pellibus quae faciunt unum saccum dimid ' Marc ' de qualibet lesta coriorum unam Marc ' c. Then persons are appointed to collect this duty which is the sum of that Record And this is againe Registred in Rotulo Finium 3 E. 1. m. 24. tit de nova Custuma in French viz. A la nouuelle Custume ke est graunte par tout les Graunt del Reaume e par la priere des Communes des Merchaunt de tut ' Engleterre c. And so goes on to tell what it is they grant de chescum sac de leyne demi mark et de chescum treiscent de peaus ke funt vn sac demi mark de chescun laste de kevir vn mark and then takes course for the collecting c. This Record is perfect from the beginning to the end which any man may resort to when he pleases to satisfie himself and the House of Commons that here was no gift of the Commons in Parliament but a pure contract of the Commonalty of Merchants with the King and Lords which way of imposing this duty at last came to be grievous and the Parliament made great complaints of it several times In the 21. of E. 3. at a great Councel held in the King's absence by Lionel of Antmerp as the Record stiles him the King's Son where there was no House of Commons there had been granted 2 s. upon every Sack of Wool 2 s. upon every Tun of Wine and 6 d. in the pound upon all Merchandize for the payments of Ships to guard the Seas and to Convoy Merchants and this duty to continue till the Michaelmas following The January after that a Parliament was called at which the Commons complained that the payment upon the Wool which should have ended at Michaelmas was still demanded and they desire the King to forbid his Officers the demanding of it any longer The answer is That that payment was prolonged until Easter because the King had been at great charge in setting out Ships and was not yet reimbursed his money which being for so short a time should not seem to be grievous 21 E. 3. n. 11. And they complain again in the 25th E. 3. n. 11. of such Impositions which had been laid on a-new by an Agreement with the Merchants and pray they may cease the Answer is Le Roy S'auisera et surceo les respondra en conuenable manere Then in the 51th E. 3. n. 25. They come with a general desire that for the time to come the Prelates Earls Barons Commons Citizens and Burgesses of the Kingdom may not be charged molested nor grieved De Commune aide faire or Charge sustenir by granting a common Aid or bearing any charge except by the common assent of the Prelates Earls Barons c. and this in full Parliament They desire also that no Impositions be laid upon Wool and Wool fells save the ancient one of half a mark upon a Sack c. To the first is answered Le Roy nest mie en volontee de le faire sans grande necesceite et pur la defens du Roialme et la ou il le purra faire par reson and for the other point of the Wools The answer is That there is a Statute in the case which the King wills to be in force So here is a disavowing of the thing yet with a reserve upon urgent necessity though in the 14th of his Reign he had consented to a Law upon occasion of a Grant made to him of the ninth Sheaf and Fleece and Lamb wherein he declares that willing to provide for the Indempnity of the Prelates Earls Barons and Commons the same Grant shall not be had in Example another time nor turn to their prejudice in time to come c. Further enacts That they shall not from henceforth be charged nor grieved to make any aid or to sustain charge if it be not by the Common Assent of the Prelates Earls Barons and other great men and Commons of the Realm of England and that in the Parliament which are the words of the Statute C. 1. of the second Statutes made that year The same in effect that he had bound himself to by a former Act made in the preceding Parliament of the same year C. 21. when a Subsidy had been granted to him of Wool Leather and other Merchandizes that passed the Sea between Easter and Pentecost That he nor his Heirs would for the future take more than the old Custom And in the 13th of his Reign part 1. n. 13. when he had by his own authority laid a charge upon Wool and Lead the Commons come and pray it may be taken off and that the Male-tot upon those Commodities may be taken as anciently it was accustomed and not as then enhansed without their assent or of the Lords Desicome ele est enhancee saunz assent de la Commune ou des Grands saith the Record Where is to be noted by the way that the House of Commons then did not think that the Lords were to be wholly excluded their Votes in those Impositions when they made it a ground of their exception that they had not agreed to them Certain it is that though this King struggled all his time with his Parliaments about the exercise of this power and sometimes did seem to yield and would promise fair at other times would deny any condescension to their desires of being eased of those Impositions even when they complained that notwithstanding those allowances and payments for guarding the Seas and securing Merchants yet Merchants were robbed and the Seas unguarded as is set forth 21 E. 3. n. 58. yet still the Parliament got some ground and less and less was it practised in that Prerogative way And after his time it was wholly remitted and left to the Parliament and there was not the least attempt of reassuming it any more But ever after it was taken by the King as a pure gift of the Parliament of which the stile was Wee the Lords and Commons doe give and grant c. And the first variation of it was in the 21th of R. 2d when it was Wee the Commons with the assent of the Bishops and Lords do give c. which continued so for three or four Kings Reigns and since hath been various sometimes as anciently Wee the Lords and Commons sometimes without specifying either Wee your Loyal Subjects and all signifying the same thing That both joyned in the gift as hath been already shewn And so jealous were they of having it thought other than a pure gift of theirs that they would sometimes grant this Subsidy
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.
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
conditionibus in concessione ejusdem Subsidii contentis in aliquo non obstantibus The Lords eased the Merchants strangers and yet the House of Commons was not angry at it nor did they threaten them that they would have no more to doe with them and that there should be no further transactions between the Houses in matter of Money but Tempora mutantur c. And so we have gone through the Presidents for the matter of Subsidies which were cited at the Conference by him that managed it for the House of Commons Let us now see what will be offered by him in point of Reason in answer unto their Lordships reasons He begins with a terrifying general Position which he puts in the front as a Caveat to their Lordships That it is a very unsafe thing in any setled Government to argue the Reasons of the Fundamental Constitutions for that saith he can tend to nothing that is profitable to the whole As if their Lordships were now unravelling a setled Government whereas their Lordships are now argueing against the unsetling of an ancient Government and the setting up of a new one altogether unknowne to our Ancestors which is To have the Trade and the Treasure and the strength of the Kingdome to be wholly in the hands and in the absolute dispose of one of the Houses of Parliament be it either of them This certainly would be the unsafety of the Kingdome and the arguing against it and opposing it is for the safety of the Kingdome Then he brings in if one may say so a little improperly the Question of Judicature a point formerly controverted by the House of Commons in which he will have no better luck than in all the rest mistaking or misciting his Presidents He first brings in the Booke Case of 22 E. 3. to shew that sometimes it was not in the whole House of Lords but such as the King would please to appoint to exercise that Power The Case is this A Judgement had beene given in the Kings Bench for the King against Edmond Hadelow and his Wife they bring a Writ of Error in Parliament Sur que le Roy assigne certein Countz et Barons et auesque eux les Justices c. de terminer le dit besoignes The King appointed certaine Earls and Barons with the Judges to end the matter But this might be a Committee appointed by the House and Judges to attend it which were regular enough and yet might be said to be done by the King as in all their Judicial proceedings things were said still to be done by the King if the King were present as sometimes he was when such matters were in agitation and that the House acted as a Court of Justice and not in its Legislative capacity And the rather it seems to have then beene so by way of Committee because the Parliament ending the Booke saith they could proceed no further and the business fell to the ground whereas if they had beene Referrees appointed by the King their authority had beene the same after the Parliament as during the Parliament As to the next quotation of the Parliament Roll 25 E. 3. n. 4. it must be some mistake for nothing is to be found there relating in any sort to the matter in hand but n. 10. there is something to this purpose which perhaps the Manager meant though if duely considered it makes against him The Case is That the King caused to be brought into Parliament the Record of the proceeding against Sir William Thorp Chief Justice Et le sit lire ouuertement deuaunt les Grauntz du Parlement and caused it to be read openly before the Lords to have their advice upon it who Judged it to be rightly and duely made and approved of the Judgement given against him because he had bound himself by Oath to undergoe such punishment if he did contrary to what he had sworne which was not to take any bribes Et sur ceo y fut accorde par les Grauntz de mesme le Parlement que si nul tiel cas aui gne dejorenauant que nostre Seigneur le Roy preigne luy des Grauntz que lui plerra et per lour bon auis fait outre ceoque pleise a sa Royale Seigneurie The Lords doe agree that if any such case happen afterwards the King may take such of his Lords as he please and by their advice further doe what seems good unto him Is there any thing here that doth derogate from the Lords power of Judicature or rather can any thing be more in affirmance of it One who out of Parliament had beene tryed and condemned by a Special Commission the King the next Parliament brings the whole business before the Lords before any Execution be of that Judgement to have their Judgement upon that Judgement they confirm it and further as it seems by the Record give the King power in the like Case to call what Lords he thinks good and by their advice to determine it which is to be supposed meant by them if the Case happen out of Parliament And certainly there cannot be a stronger argument for the Judicature of the House of Peers in Parliament Then he brings Presidents to shew that by the Kings good pleasure the Commons have beene let into a share of the Judicature His first is the 42 E. 3. n. 20 21. The business was this The King the last day of the Parliament invited all the Lords and Plusours des Comunes many of the Commons to dinner Et aprez manger vindrent les Prelats Counts Barons et ascuns des Communes en la dite Chambre blanche And after they had eaten the Prelates Earls Barons and some of the Commons probably not all they that had dined there for the Record is Ascuns went into the foresaid Chamber blanche which is now the Court of Requests where the House of Lords then sate as the Commons En la petite sale the Record saith in the little Hall and thither was brought Monsieur John de la Lee and tryed for several Crimes laid to his charge the Articles read by the Chief Justice Robert de Thorp Del commandement des Seigneurs illoeques assemblez by the Commandment of the Lords who were there assembled so likewise the Record saith that his answer Fust auis aux Seigneurs non resonable seemed to the Lords not to be reasonable And then n. 22. the Record saith further that he was Mis a reason deuant les Seigneurs tryed by the Lords upon an other point The Conclusion was That he was sent to the Tower and made Fine and Ransome to the King But all was done by the Lords who sate there as a House in their Judicature the few Commoners who were present being but so many private persons and lookers on and not the least colour of their bearing any part in the Judicature As to his next quotation of 31 H. 6. n. 10. nothing can be said it must be mistaken
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
sufficiently and without hearing what the Lords could say against it And why then should it seem so strange that the Lords should be as resolute in the asserting of their Right Their third surprize one may say is a piece of Sophistry for since they cannot answer the Reasons alledged by the Lords in the maintenance of their Assertion nor disprove their Presidents they would seem to slight them and wonder their Lordships should be so easily perswaded by them having no other Motives In the next place they would perswade the Lords that in their Presidents there is a departure from the question which is only concerning power of Abatement of Impositions upon Merchandize whereas these Presidents go to a joint power of imposing and beginning of Taxes which say they the Lords do not pretend to Nor indeed do they pretend to it neither did they cite those Presidents for that purpose And the House of Commons should not put upon them any other or further construction than they were produced for This may pre-possess standers by with a prejudice as if the Lords would assume to themselves a power of laying a charge upon the Nation at their pleasure but is not the way to discover who is in the right for his present pretensions This is cleer They do prove that in those times the Lords and the Commons did joyn in the gift that the one could not give without the other except they had otherwise agreed it among themselves and that they would give separately as they have sometimes done and but rarely Four times in Edward the thirds Reign 13 E. 3. n. 7 8. 18 E. 3. n 10. 20 E. 3. n. 11. 27 E. 3. n. 8. once in E. 4ths time 12 E 4. n. 8 9. and in the 29th Eliz. the Commons having made humble suit to the Lords to joyn with them in a Contribution or Benevolence to the Queen The Lords gave answer that they would leave the Commons to themselves and they would rate themselves which they did at 2 s. in the pound after the rate of the valuation of the Subsidy But the ordinary way of Parliament hath ever been for the two Houses to joyn in the gift And this not to be understood by a figure of Reddendo singula singulis as was said at the Conference by him that managed it for the House of Commons as if the Lords gave one part and the Commons another part and the Lords to have nothing to do with what the Commons give and the Commons nothing to do with what the Lords give And though they say We Lords and Commons grant to your Majesty this and this and here we both of us joyntly make to your Majesty one Present and give you one gift we tell you so yet it is not so but your Majestly must Reddere singula singulis and take one part of it as coming from your Lords and the other part as coming from your Commons And though your Majesty doth graciously return one thanks to us both yet we shall likewise Reddere singula singulis and divide the thanks between us and take each of us his part Is this a Parliament stile are Laws penned in such Ambiguous and sense-confounding terms doth an Act of Parliament say that the Lords and Commons grant a whole Subsidy to the King when neither of them doth so and each of them hath nothing to do with some part of the grant No certainly Acts of Parliaments and Laws speak distinctly and their expressions are always litterally true And where they say the Lords and Commons grant both have an interest and both exercise a power in granting Besides in a Subsidy of Tunnage and Poundage in which only Merchants and Tradesmen are concerned what singularity can be pretended of any thing belonging peculiarly to the Lords that they should be said to give there but for themselves and not to be at all concerned in what is done as to the generality of the Kingdom Therefore if they joyn there in granting it must be in reference to others and not to themselves and peruse all the Records from the 17th of R. 2. n. 12. upwards to the very first Subsidies of that nature given by Parliament it will be found that the stile was constantly We the Lords and Commons do grant c. And though since it hath sometimes varied in form the sense hath still been one and the same For if it was true then that the Lords had a part in the giving as the words all along are plain they had they must have a part still having never quitted it by their own Act nor lost it by the Act of any other The Figure then of Redddendo fingula singulis mends not the matter yet some alteration hath been as hereafter will be shewed though not in the giving part and that by which it comes to be a gift to the King But then saith the Manager of that Conference for the House of Commons If it be not so to be understood then to Grant signifies only to Assent and to say the Lords grant is as much as to say the Lords Assent to what the Commons grant But will this Exposition hold Can it be said that to give is to be content another shall give If this be giving one may find givers enough and a man may be charitable upon easie terms Would any man think we be content if another and he were bound to give such a man a hundred pounds if he who were to give part of the Mony with him as being together bound should say I am bound only to consent that you should give it all not to give any my self I believe if the Manager of the Conference were the man to whom it should be so said he would then expound it otherwise and say to his fellow-Obligee that to give and grant is one thing and to give consent another shall give and grant is another thing and you are bound Sir to give as well as I and not to be willing only that I should give all And by the same Grammar he might conclude that where it is said That the Lords and Commons do give and grant so and so to the King the meaning is That it is a Grant of the Lords as well as of the Commons and the Lords do give as well as the Commons and certainly in good English it can have no other construction But then he will tell you that therefore the stile was altered afterwards and to declare the gift to come only from the Commons it ran thus We the Commons by advice and consent of the Lords Spiritual and Temporal do give and grant c. Well admit that to be now the setled constant form and not to be altered which yet we know is not so for sometimes the ancient form hath been observed in explicit terms We the Lords and Commons c. Sometimes implicitly We your Loyal Subjects do give and grant c. But be it
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
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
ne se poeit bonement tenir adonques pur cause de la pestilence q'estoit bien aspre a mesme temps et par tant il sist relesser le dit sommons adonques c. So as no good measure can well be taken from any thing done this Parliament Much need not be said neither to their endeavour of proving the Communitas 3. E. 1. to be understood to be the Communalty of England by the recital of that Statute in a Statute made after in 25 E. 1. c. 7. called Consirmationes Chartarum since it hath already been made out by the Record That that Grant in 3 tio was by the Communitas Mercatorum But however a short mention made in a Recital can be no Restrictive proof that is to say not a proof to limit and restrain the sense when more is expressed or may be understood in the Act it self at large And therefore their argumentation concerning those Statutes of E. 6. can no ways be allowed In the 2 3 E. 6. c. 36. A Subsidy is given and the stile is Wee the Kings Majesties faithful loving and obedient Subjects the Lords and Commons doe grant c. This Statute he saith is recited in 3 4 E. 6. c. 23. And there it is acknowledged to be only a Grant of the Commons The words are these That where in the last Session of this present Parliament your humble and faithful Subjects the Commons in the said Parliament assembled with the assent of the Lords Spiritual and Temporal Granted c. Now first This is not said to be onely the Grant of the Commons for the Lords joyne and give their assent to it Secondly If the Commons only had been mentioned restrictively in this Recital the Act it self saying expresly That the Lords and Commons Granted should the Recital be of more validity to declare what was enacted than the Act it self In the third place it may be observed That the Act saying The Lords and Commons doe Grant And the Recital of that Act saying It was the Commons with the assent of the Lords It must follow that in the Judgement of the Parliament then these two forms of expressing the Grant of a Subsidy did signifie one and the same thing and they may be promiscuously used without any variation of the sense so that in all Acts of Subsidies where wee find it said Wee the Commons doe with the assent of the Lords grant so and so it is as much as if it had been said Wee the Lords and Commons doe grant c. which overthrows all that the House of Commons hath alledged or can alledge to make it to be their gift alone and the Lords to have no part in it And to prove it say they the stile hath been altered and the Acts doe now run for the most part Wee the Commons with the assent of the Lords c. But it is answered though the stile be changed the sense continues the same And 2 R. 2. n. 37. The House of Commons themselves are said but to Give their assent to an Imposition which had his rise in the House of Lords The Case was thus Upon a Reference from the House of Lords to the Earl of Northumberland and the Maior of London with some Merchants joyned to them six Vessels were appointed for the guarding of the Northern Seas infested by Pirates who had landed and plundered the Town of Scarborough and for defraying the charge of those Vessels an Imposition was laid upon Ships that passed through those Seas of 6 d. per Tun excepting Flemish Ships bound for London and such as carried Wools and Woolfells to Calais and 6 d. per Tun a week upon Ships that fished for Herring and upon all other Fisher-boats 6 d. per Tun every three weeks This had passed in the House of Lords unknown it seems to the House of Commons for the Record saith they petitioned the King that care might be had of those Seas and of the Town of Scarborough The Answer is Remede ent est ordeinez per maniere comme le Conte de Northumberland et le Mair de Londres qi furent assignez en Parlement de treter sur cette bisoigne le sachent plus au plein declarer That already there is a remedy ordeined in it as the Earl of Northumberland and Maior of London who were appointed by the Parliament to treat of that business could more fully informe them which they did and the Commons gave their Assent to it as is expressed in a Schedule annexed which contains the particulars of that transaction So then the stile of Giving an Assent can not be said to be wholly and solely appropriated to the House of Lords and made a mark of their having no part nor portion in the giving of those Subsidies since the same is likewise said of the House of Commons As for the Indemnity of the Lords and Commons 9 H. 4. It hath been already spoken to and clearly proved out of it that the Lords are very far from being by it secluded to be noe parties to the Grant but that they should not be the Beginners of it is confessed And that was it which was then the Grievance to the Commons that the Lords had already concluded the Aide to the King and declared it so to the Commons not for demanding a Committee to confer with about it as was alledged at the Conference As for the Book-Case of 33 H. 6. which they say is the weakest of all is a thing easily said but not so easily made good for others conceive it a very strong proof of the Lords assertion of their Interest in granting of Subsidies it is brought there as an instance of the Proceedings of Parliament of which the Judges desired to be informed upon occasion of a business depending before them in which there had passed an Act of Parliament and therefore they sent for Kirkeby of the Rolls as the Book stiles him and for Faux the Clerk of the Parliament to receive information from them They come and Kirkeby speaks and lays down this for a Rule That if the Lords make an alteration to a Bill which may well stand with that which the Commons have done they need not send this Bill back to the House of Commons And of this they give an instance which is this If say they the Commons have sent up a Bill of Tunnage and Poundage to continue for four years and the Lords they alter it to two years it need not be sent down againe to the House of Commons And the reason is because it may stand with the grant of the Commons for both Lords and Commons have granted it for two years This was the Case to which were taken several exceptions 1. That it was onely the opinion of the Clerk of the Parliament not of the Judges To which is answered That if it was so none could better know the course of Parliaments than the Clerk of the Parliament who
as 37 H. 8. the only printed Act of Subsidy in all his reign which begins thus We the Kings Majesties most humble faithful and obedient Subjects the Lords Spiritual and Temporal and the Commons in this present Parliament assembled c. have consulted together and determined to beseech His Majesty most humbly to accept and graciously to receive at our hands the simple token or gift which we do herewith present to His Majesty freely with one consent granting the same most humbly beseeching His Majesty to accept the same as it pleased the great King Alexander to receive thankfully a Cup of water of a poor man by the high-way-side c. And a little after they say Wherefore we the said Lords and Commons do by our mutual Assents and Agreements with one whole voice and hearty good will by the authority of this present Parliament give and grant to the Kings Highness c. Here then is but one consent one whole voice one hearty good-will to give and grant and one Act of giving and granting of the Lords and Commons and yet the Lords must have no hand in this giving as was told them at this Conference And they are told further That the thanks was given to the Commons alone and that is true it was it seems the Kings pleasure so to do But this course was not always observed sometimes both were thanked and the Law is they should be so in the Indemnity of Lords and Commons 9 H. 4. Nor can the Act of a King using his pleasure sometimes to vary from the exactness of a Law make an alteration in the nature and force of that Law but that still it remains the same to shew what then should have been done however the King was pleased to do otherwise and what will be done or at least ought to be done at an other time And now we will go with them to Walsingham and see if History makes more for them than Records though neither is History a sufficient proof for things of this nature neither is Walsinghams or any of those Moncks Writings the most authentick History in the world But let us see what Walsingham saith p. 475. he saith His diebus Clerus populus primo quintam decimam postmodum tricesimam bonorum suorum Regi Angliae in Subsidium concesserunt And p. 488. he saith Pro confirmatione harum rerum omnium dedit Populus Anglicanus Regi denarium nonum bonorum suorum Clerus Cantuariensis decimum Clerus Eboracensis quintum quia proprior damno fuit What doth this signifie but that the Laity gave so much and the Clergy so much and certainly the Lords will be acknowledged to be part of the Laity therefore the Laity giving they are comprehended An other quotation was urged from p. 566. The words are Eo tempore incohatum est Parliamentum quod protelabatur inutiliter fere per annum quia postquam Parliamentales milites distulissent diu concedere Regi Subsidium in fine tamen fracti concessere taxam petitam grandi Communitatis damno But how they will prove hence that the Commons gave this Subsidy alone is difficult to tell All that can be gathered from it seems to be but this the Knights in Parliament which may be taken for the whole House of Commons held off a long time but at last yielded and gave the Tax demanded to the great prejudice of the Commonalty doth it follow therefore that when the House of Commons had passed it at last the Lords did not assent and joine in the Grant Certainly no man will say it And for their last quotation out of p. 564 in H. 4 ths time that Subsidium denegatum fuit Proceribus renitentibus the words are these In quadragesima sequente Rex convenire fecit apud Sanctum Albanum Clerum Regnique Barones sed proceribus renitentibus nil actum fuit And no wonder that the Lords dissenting nothing was done yet whether this was a Parliament or only a Great Council non constat more like to have been only a Great Council and that the King had propounded matter of money to them as he did afterward in the Parliament of the 9th of his Reigne to the House of Lords and as this very Writer saith that he had done a little before to these same Barons at London viz. Post Festum Purificationis Rex accerssitis Londiniis regni Baronibus tract abat cum eisdem de Regni regimine deque pecuniali subventione sibi ferenda sed proceres Regiis votis tum minimè paruere All this was but a great Council and no Parliament if so be Walsingham gave a true account of what passed for he doth not mention the Commons to have been summoned at all or that they were there However were they or were they not there it makes nothing for the Managers purpose to prove the Commons sole givers And then for what he observes that the Lords not Agreeing an Act doth not pass is what no man yet did ever doubt of The Statute of 1 E. 3. c. 6. where the Commons complain that when they have granted an Aid and the Taxers had taxed them and they had paid the money there was Inquisitions afterwards and the Taxers put to fine and ransome signifies nothing to prove they were the sole Granters of that Aid And the 18th of E. 3. n. 14. It was by Agreement that the Lords should accompany the King and pass the Seas with him And the Commons they grant for the Commonalty at large in the Counties two Fifteens and for the Cities and Burroughs two Tenths the Record saith Et pur ceste cause les ditz Grants granterent de passer lour auenturer ovesque lui la dite Commune luy grantà pur meisme la cause sur certeine fourme deux Quinzismes de la Communaltee deux Dismes des Citees Eurghs c. This was sometimes practised as hath been already shewed both in this Kings time and in E. 4ths and once in Queen Eliz. that the two Houses did agree to act severally as here the Lords to serve in person when the Commons gave money So some times the Lords would charge themselves and their Tenants apart which in those times was a great part of the Kingdom and taking in the Clergy that is Bishops and Abbots and Priors who held per Baroniam more than half the Kingdom and the Commons did charge themselves a-part this in an extraordinary way which altered not the Case of their joint Gift when they would grant Aides in the ordinary Parliamentary manner As for what is said of the 36 E. 3. c. 11. was but taken out of Poultons Collection of Statutes in Print there indeed it is said That the three years Subsidy granted by the Commons to the King shall be no example for the time to come But if the Record it self had been consulted with it would have shewed that the Lords and Commons granted this Subsidy it is
n. 35. where is said Les dits Grants et Communes granterent d'un assent a nostre dit Seignieur le Roy un Subside de Leines Cuirs Pealx lanutz c. pur terme de trois ans pleinement accompliz It is true that in the end of the Record it is said Purquelegrant nostre Seigneur le Roy a la requeste de sa Commune lour ad fait Pardon de plusour Articles d' Eyre For which Grant the King at the prayer of the Commons remits unto them many things for which they were or might be questioned in his Courts And so among the Petitions of the Commons in that Parliament n. 26. they pray That after the three years expired onely the old Custome may be levied And they pray Que nul Subside n'autre charge soit mis ne grante sur les Leines par les Marchaunts ne par nul autre de sorenaunt sins assent du Parlement That no Subsidy nor other Charge be laid neither by the Merchants nor any body else granted upon Wools henceforward without consent of Parliament And the answer is Il plest au Roy the King approves it Is there one word in this Record which makes for the Managers pretenses Doth it not expresly say That this Subsidy was granted by the Lords and Commons What the Commons make to be their desire afterwards upon it is nothing to the Grant But this appears by it that the Merchants sometimes granted such things without the Parliament as hath been said before for the Commons complain of it and petition against it here So the Subsidy granted 21 R. 2. n. 15. was not by the Commons alone for it was by the assent of the Bishops and Lords granted to the King during life those are the words of the Record and they signifie the same thing as if it had been said That the Lords and Commons had granted it This hath been already made out to the full and those Statutes of E. 6. formerly cited by the Manager himself are a proof of it irrefragable For that of ◠and 3 E. 6. says The Lords and Commons granted a Subsidy and the Statute of 3 and 4 E. 6. reciting that saith The Commons granted it with the assent of the Lords Which shews the meaning of the Parliament in those two differing expressions to be one and the same But the Manager tells us not what followed upon the grant of this Subsidy which was that the King gave a general Pardon and withall the Record saith Fist overt Declaration per son bouche de mesme que siles Seigneurs ou Cōes du Roialme qui viendront as Parlments en temps advenir mettent ou facent impediment ou distourbance a contraire del Grante du dite subside des Leins Quirs Peaux lanutz ensi grauntez a luy a terme de sa vie que adonques la dite Grace Pardon soit tout voide tout outrement adnulle Declared with his own mouth that if either the Lords or Commons should afterwards in any Parliament give impediment or disturbance to this Subsidy of Wool Leather and Woollfells so granted to him for his life that then the said Free Grace and Pardon should be wholly void and totally annulled So it seems the King thought that the Lords might make some alteration in the Subsidy as well as the Commons and feared it And the Commons themselves did not gainsay it which they would certainly have done if it had then been a general received Position that which hath now been so confidently asserted nay if it had then been but a question that the Lords might not meddle in any of these Subsidies nor hinder nor alter any thing which the Commons would do concerning them This was not for his turn and therefore he would take no notice of it But in truth the very Grant it self shews it to be the joint act of both Houses and that the Lords had an interest in it as well as the Commons For whoever must assent to a thing and that it cannot be disposed of without his assent must questionless have an interest in it The same is to be said of 2 H. 6. n. 14. 31 H. 6. n. 7 8 9 10. and 8 E. 4. n. 30. all run The Commons by assent of the Lords In the two first of H. 6. The Manager hath it seems been misled by the Exact Abridgement and not consulting the Rolls But that of 8 E. 4. is so in terminis in the Abridgement it self therefore it is some wonder how he came to mistake this and ranck it amongst those which he makes to run in the stile of being Granted by the Commons alone without any mention of the Lords As he doth also mistake that of the 3 E. 4. relying meerly upon the Print of 12 E. 4. c. 3. where it is indeed recited to be by the Commons alone But if he had resorted to the Record which only is an Authentick President he had seen that there it is in the same stile as all the rest It is n. 24. both in the Memorandum which is in Latin in these words Communes in praesenti Parlamento c. de assensu Dominorum Spiritualium Temporalium concesserunt c. And in the Indenture it self which is English We your poor Commons by the assent of all the Lords Spiritual and Temporal in this Parlament assembled grant c. And in the same Parliament two other Subsidies are granted in the same form one for a Fifteenth and a Tenth the other for 37000 l. And it may be boldly affirmed that ever since there hath been a House of Commons not one Subsidy hath ever been granted by them alone without the Lords But what he means by his President of Ireland 15 H. 7. we understand not For how can it signifie any thing as to the Parliament of England to be any rule to it or evidence of it or to hold any proportion with it be it never so much such as they would have it But then what will be said if it be found to be nothing so For there is awide difference betwixt saying The Commons give a Subsidy and saying That at the prayer of the Commons it is granted and enacted by authority of Parliament that a Subsidy be given And by that form of Expression they can no more be said to be the sole givers of a Subsidy than to be the sole makers of all the other Acts of Parliament in Ireland that were then made for they all run in the same stile c. 16. Prayen the Commons that it be enacted this present Parliament that every Lord shall appear in his Parliament Robes And c 17. Prayen the Commons that it be enacted That there be no Peace nor War made in the Land without the Lieutenants or the Deputies license So c. 20. Prayen the Commons that it be enacted that no persons use these words Cremabo Butlerabo words it seems which were used when they
For in that Parliament wee find nothing of this nature The Complaint of the Commons to the House of Lords for their Speaker being imprisoned and their desire to have him released which would not be granted was indeed that Parliament But to Hugh Brice's Case 8 E. 4. a clear answer may be given That what was therein done was by Act of Parliament in a Legislative way The Commons Petitioning in these words Please it therefore your Highness by the Advice and Assent of the Lords Spiritual and Temporal in this Parliament assembled and by authority of the same to assign name and appoint the full reverend Fader in God Thomas Cardinal Arch-Bishop of Canterbury c. Then names several Lords both Spiritual and Temporal the three Chief Judges of the three Courts and some of the House of Commons to be the persons to examine that business and heare those complaints against Brice the Master of the Mint The King's Answer is Le Roy le voet with a saving to his Prerogative Royal conceiving it it seems to be some derogation to it that the Commons should be admitted to any part of Judicature though by a special Law for it For this was a perfect Act of Parliament in which the three Estates concurred in their Legislative capacity which had no affinity with the Judicial Power exercised by the Lords in their House as the highest Court of Judicature As for his President of 2 H. 5. where he saith It was assigned for error in the House of Peers that the Lords gave Judgement without the assent or a Petition of the Commons It was the Earle of Salisbury's Case to reverse the Judgement given upon his Father and it is true indeed it was assigned for an Error but it is as true it was not allowed to be one for his Writ of Error was rejected and that Judgement was affirmed And strange it is that he should produce this for a President to prove a Partnership of Judicature in the Commons being a strong one against it And as well might at any time a Plaintiffs Bill in Chancery be produced for Evidence against a Defendant in some other suite even when the Bill hath beene dismissed And his next President is just such an other to shew that the King and Commons alone without the Lords have made Acts of Parliament for which he quotes 1 E. 6. c. 5. It is a Statute against conveying Horses out of England and it is true that in Pulton's Collections it is so Printed as enacted by the King and Commons without mention of the Lords But if the Journal of the Lords House had been consulted it would have shewed that the Bill began in their House was read the first time the 1st of December upon a Thursday The second time upon a Wednesday the 7th The third time upon Saturday the 10th and sent down to the House of Commons by the Kings Attorney and Sollicitor the 22 d. of December upon a Thursday the House of Commons sent it up againe with a Proviso to be added which Proviso was allowed of by the Lords and the Bill dispatched the Saturday after It was therefore a foul mistake to say this Bill passed without the Lords And it may be modestly said of all his Presidents both concerning the Legislative and the Judicature that upon better consideration he will not finde cause of great encouragement from them to argue the foundations of either Power in order to that Super-structure which he would reare whither in diminution of that Power which is challenged by the House of Peeres in the Legislative for Impositions or maintenance of that which he pretends to for the House of Commons in point of Judicature And now wee come to his particular Answers to the Reasons given by the Lords And to so much and so many of those Answers as seeme to containe any thing of weight and material to be replied unto we shall give that Reply that is necessary but as for that which is jocular and hath something of reflection in it as too much of it hath onely this shall be said Auferat oblivio si potest si non silentium teget To the 1st Reason then given by the Lords which was That the happiness of the Constitution is to have one House to be a Cheek to the other his Answer being That the Lords having a Negative voice to the whole is a sufficient Check to the House of Commons It is replyed That to have a Negative voice is not to be a Check A Negative voice is one thing a Check is an other The King hath a Negative voice to what both Houses doe yet he cannot be said to be a Check to the Houses The two Houses have each of them a Negative voice to the Convocation granting Subsidies yet they cannot be said to be Checks to the Convocation But each to other in their Legislative capacity have both a Check and a Negative voice which are different operations of that Legislative Power For properly to be a Check is to have a trust reposed in one to examine the Act of an other And both are trusted by and accountable to a third person by whose authority and for whose Service both are employed And he that is the Check cannot wholy reject what the other hath done be it an account or any thing else he can onely examine it if it be right And if any error be he can correct it and reforme it and make it such as that he who employes them both may receive no dammage nor prejudice by it And this is the proper worke of the House of Peeres as they are a Check to the House of Commons for they have a Negative voice besides which is not now the Question but onely as they are a Check and so they are trusted both by the King and People as well as is the House of Commons not onely in Money-matters but in all things else cognisable by the Parliament If the House of Commons give Money so to the King as the Subject cannot beare it if out of Trade so as Trade cannot beare it which is the proper question now 〈◊〉 out of the Estates of the People so as they are not able to pay it the King himself suffers in all this as well as the People it will be his dammage his loss at the last nay the greatest damage and loss will be his at the long run perhaps immediately for as the saying is He that graspes too much holds nothing so if more be given than can be paide nothing may be received A thing which King James of blessed memory did well understand and therefore in the Session of Parliament 7 mo the 21. of March he called both Houses to him to Whitehall upon occasion of an Aide then demanded and there among other things said this to them If you give more than is fit you abuse the King and hurt the People and such a Gift I will never accept for in such
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