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
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
Robbed and Plundered And all the other Acts of Parliament run so yet sure no body can think it was only their House of Commons that made those Laws but such was then the form and stile in the making of all their Laws All the rest of the Presidents cited by him in the times of H. 8. E. 6. Qu. M. Qu. Eliz. Car. 1. and Car. 2. are by his own confession still with the assent of the Lords and how little that makes for his purpose needs not that any more be said to it As for that of 1 Qu. Eliz. when the Lords did respite the payment of the Subsidy for some time as to Cheshire and Wales which is an undeniable President of their easing the Subject upon occasion it doth not at all alter the Case what was said of their address to the Queene and of the Entry in the Journall Booke of her pleasure signified for it For that was but a civill respect to her that they would not diminish her profit in any thing without acquainting her with it and the having her leave But still it was done by their authority and it was an Act of that House And the power to doe it was then well knowne as appears by the Petition of all the Inhabitants of Wales and Cheshire presented to the Lords for that purpose by the hands of the Knights and Burgesses serving for them in the House of Commons that Parliament nor would they else have Petitioned the Lords nor durst the Members of the House of Gommons that represented them in that House have delivered it But admit there were no Presidents of the Lords giving ease to the People and making abatements of a Change laide by the House of Commons whether upon Merchandize or any thing else and that noe complaint had ever beene and so no alteration or amendment ever made It doth not follow that therefore they have not power to doe it when there is cause for it and that there are complaints of Excesse or Inequality in a Tax as now there were complaints sufficient by all sorts of People who dealt in those Commodities upon which the Impositions had beene laide Planters Merchants and Tradesmen Therefore the Lords say they insist and rely more upon the Rationality and intruth Necessity of the thing for the good of the King and Kingdome then upon any President that can be for it And yet Presidents wee see there are several ones However they say it were enough for their justification if there be none against it and there could be but of one of these two kinds either that the Lords have of themselves disclaimed such a power or that it hath beene denyed them when they have claimed it and whoever sheweth one of either Erit mihi magnus Apollo By what hath beene said appears how little reason the Manager had to brag of a 300 years uninterrupted possession of this Priviledge claimed by the House of Commons to be the sole absolute and uncontrouled Taxers of the People not only in their Commerce and Trading but in all Money matters For to that large extent hath he now stretched the question which he narrowed in the beginning And so the Lords must not in any case interpose to give relief and ease to the People if there be never so much cause But either they must not joyne to give any Aide to the King and so the King be unsupplied or they must be made Instruments against their Judgements and against their certaine knowledge to oppress the People which all unequal Taxes doe So if they deny passage to the Bill the King suffers If they give it passage and make it a Law it wrings the People Yet this must be or else saith the Manager The Lords doe what in them lyes to put an end to all further Transactions betweene the Houses in matter of Money he might as well have said in all matters of Parliament for that must be the consequence And he is desired to consider where the fault will lye and who demands unreasonable things such as Nahash did of the men of Jabesh Gilead to thrust out their right eyes So would this even thrust out one of the eyes of the Parliament make the House of Lords to be nothing an insignificant thing of no use no advantage to the Kingdome Therefore it is hoped the consideration will be taken on the other side though an Item be given to the Lords to consider of it implying that since It may put an end to all transactions betweene the Houses in matter of Money the Lords should apprehend that the House of Commons might perhaps admit of no more Conferences in any business of this nature but would doe it of themselves without communicating it to them who then could not so much as take notice that such a thing was in agitation But there are Presidents that the Lords have of themselves uncalled taken notice of and interposed in debates of that nature which have beene in the House of Commons And when contests and differences have risen there and that the House of Commons could not come to any resolution among themselves they have composed and setled the business and have directed and appointed what should be done As 3 H. 6. The Commons with the Lords assent had granted a Subsidy of 33 s. 4 d. upon every Sack of Wool as much upon every 240 Woolfells 3 s. upon a Tun of Wine and upon all other Merchandize 12 d. in the pound under the condition saith the Record That every Merchant stranger coming into the Kingdome should within 15 dayes be under Hoost and within 40 dayes after his being so under Hoost should sell off all his Merchandize and what after that remained unsold should be forfeited to the King and likewise should pay forty three shillings four pence that was 10 s. more than the English upon every Sack of Wool and every 240 Woolfells And if these conditions were not observed the whole grant of Tunnage and Poundage of the English Merchant to be void and of no value These Conditions it seems were not observed and great stir there was about it in the House of Commons the next Parliament which was 4 H. 6. as appears by the Record which saith thus Item pro eo qd inter Cōes Parlamenti praedicti diversae opiniones de super concessione levatione Subsidii Tonagii Pondagii Domino Regi in Parlamento suo ultimo tento concessi motae fuerunt ut dicebatur subortae visa tandem diligenter examinata forma concessionis Subsidii praedicti in praesenti Parlamento habita quoque inde Justiciar aliorum Legis peritorum deliberatione matura consideratum fuit plenius declaratum per magnificum Principem Ducem Bedeord Commissarium Domini Regis ac faeteros Dominos Spirituales Temporales in eodem praesenti Parlamento existentes qd Subsidium praedictum ad opus praefati Domini Regis omnino esset solvendum levandum aliquibus