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
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
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
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