The Pamphlet Collection of Sir Robert Stout: Personal Volume
Saturday, 22nd April
Saturday, 22nd April.
The Commons have desired this Conference, to preserve a good correspondence with the House of Peers, and to prevent the ill consequence of these misunderstandings, which may possibly interrupt the happy conclusion of this session, and of all future Parliaments too, if they be not very speedily removed.
Wherein the Commons are not without hopes of giving your Lordships full satisfaction in the point in question, and that without shaking any foundations, unless it be such as no man should lay, much less build upon, the foundations of a perpetual dissension between the two Houses.
Three things did surprise the Commons at the former Conference concerning the Bill for an additional imposition on several foreign commodities:
First, that, where they expected a discourse upon some amendments to that Bill, they met with nothing but a debate of the liberties of their page 112 House in the matter, measure, and time of rates upon merchandise, with a kind of a demand that these liberties might be delivered up to your Lordships by our public acknowledgment, before there should be any further discourse upon that Bill.
Secondly, that your Lordships should declare so fixed and settled a resolution in this point before you had so much as heard what could be replied in defence of the Commons.
Thirdly and lastly, that your Lordships should be so easily induced to take this resolution, if there be no other motives for it than those precedents and reasons which your Lordships have been pleased to impart to us.
The Commons confess that the best rule for deciding questions of right between the two Houses is the law and usage of Parliament; and that the best evidences of that-usage and custom of Parliament are the most frequent and authentic precedents.
Therefore the Commons will first examine the precedents your Lordships seem to rely upon; then They will produce those by which their right is asserted; and, in the last place, they will consider the reasons upon which your Lordships ground yourselves.
By the nature of the precedents which your Lordships produce there is an evident departure from the question. As the former Conference left it, there the doubt was narrowed to this single point: whether your Lordships could retrench or abate any part of the rates which the Commons had granted upon merchandize. Here the precedents do go to a joint power of imposing and beginning of taxes, which is a point we have not yet heard your Lordships to pretend to, though this present difference prepares way for it.
Therefore, either these precedents prove too much by proving a power of imposing, or they prove nothing at all, by not proving a power of lessening.
And yet they do not prove a power of imposing neither, for these words, "the Lords and Commons grant," must either be understood reddendo singula singulis—that is, the Lords grant for themselves, and the Commons grant for the counties, cities, and boroughs whom they represent; or else the word "grant" must be understood only of the page 113 Lords' assent to what the Commons grant because the form of law requires that both join in one Bill to give it the force of a law.
This answers the statute of Magna Charta, c. 37, and those few instances where it is said "the Lords and Commons grant"—viz., 47 E. III., N. 10; 4 R. II, N. 10, 11, 12, 13, 14; 6 R. II., N. 14. But what answers can be given to those ancient and modern precedents and Acts where the grant moves and is acknowledged to come from the Commons alone, of which a multitude shall be hereinafter mentioned?
The case of 14 E. III., N. 5—" Apres grant tret & parleance enter les grantz & chevaliers & Communs fuit assentus," &c.—is no grant of the 9th sheaf, as your Lordships cited it to be, but an agreement that the nones, granted in a former Parliament, should now be sold, because the money came not in fast enough.
22 E. III., N. 3, winch your Lordships cite to prove that the King did sometimes command the Lords to consult with the Commons about raising money, proves little of that; but it proves expressly that the Commons granted three fifteens. And, as the grant runs wholly in their own name, so the record is full of many reasons why they could grant no more, and upon what conditions they granted so much.
And yet all these records wherein the Lords advised with the Commons about raising money, though they seem to make a show in your Lordships' paper, yet they prove two things of great importance to the Commons: First, that all aids must begin with the Commons, else the Lords need not to have conferred about the aids, but might have sent down a Bill. Secondly, that, when they are begun, the Lords can neither add nor diminish; else it was in vain to adjust the matter by private conference beforehand if the Lords could have reformed it afterwards—which shows how little service the records of 29 E. III., N. 11, 51 E. III., N. 18, can do your Lordships in the present question.
From the time of R. II. your Lordships come to 7° Jac. to tell us of the treaty between the Lords and Commons touching the contract for tenures in. capite, wherein, the Lords and Commons being to be purchasers, it was less subject to objection to page 114 confer both of the method and manner how the price agreed might be paid, for the satisfaction of the King; but this matter hath so little affinity with the present question of lessening rates upon merchandise given by the Commons that nothing but a scarcity of precedents could ever have persuaded your Lordships to make use of this instance.
As for the precedent of 3 E. I., cited by your Lordships, the Commons have most reason to rely upon that case. Your Lordships say, in the beginning of impositions, when 40s. upon a sack of wool was granted to E. I. and his heirs, the Lords joined in the grant; for the words are, Magnates, Pralati, and tota Communitas concesscrunt, wherein are these mistakes:—
First, that record was not a grant of 40s. upon a sack, as your Lordships suppose, but a reducing of 40s. upon a sack, which E. I. took before Magna Charta was confirmed, to half a mark, viz., 6s. 8d. per sack: and it was at the prayer of the Commons, as some books say, and cite for it 3 E. I. Bot. fin. Memb. 24.
Secondly, the record which your Lordships cite is twice printed, once in the second part of the Institutes, page 531; and again in the fourth part of the Institutes, page 29. And by both those places it is evident that the concesserunt is to be applied only to the tota Communitas, and not to the Magnates, for this was a grant of the Commons only, and not a grant of the Lords. And, to demonstrate this beyond all possibility of scruple, the printed books do refer us to the Statute of 25 E. I., c. 7, called Confirmations Chartarum, wherein it is expressly so declared by Act of Parliament; for, by the last statute, it appears that the Male tot of 40s. upon a sack was again demanded by E. I.; and was therefore now abrogated, saving to the King and his heirs, the demi mark upon a sack of wool granted by the commonalty, which is the very same grant of 3 E. I., cited by your Lordships in the present question.
But this is also a convincing evidence that these words, "the Lords and Commons grant," are words of form, and made use of in such cases where the grant did certainly proceed from the Commons alone. And, to clear this point yet more fully by a modern precedent, we pray your Lordships to take page 115 notice of the statute of 2 and 3 E. VI., cap. 36, where a relief is given to the King by Parliament, and in the title of the Act, as also in the body of it, it is still called, all along, the grant of the Lords and Commons. Yet in 3 and 4 E. VI., cap. 23, this former Act is recited, and there it is acknowledged to be only a grant of the Commons.
And as for the case of 9 H. IV., called the Indemnity of the Lords and Commons, these things are evidently proved by it:—
First, that it was a grievance to the Commons, and a breach of their liberties, for the Lords to demand a Committee to confer with about aids.
Secondly, that the Lords ought to consider by themselves, and the Commons by themselves, apart.
Thirdly, that no report should be made to the King of what the Commons have granted, and the Lords assented to, till the matter be perfected, so that a plain declaration is made that the Commons grant and the Lords assent.
Fourthly, that the gift ought to be presented by the Speaker of the Commons.
The Book Case, 33 H. VI., 17, is the weakest of all, for the words are, "Si les Communs grant Tonage p' 4 Ans, & S'urs grant mes p' deux Ans ceo ne serra reliver aux Communs mes vi[unclear: a] versa si Communs Grant p' 2 Ans, & S'urs p. 4 ceo ne ser' reliver.'
Now, first, this was no opinion of any Judge, but only of Kirkby, Cl de Pari'.
Secondly, this was a case put by-the-by, and not pertinent to the matter in hand.
Thirdly, it is impossible to be law, being against the constant practice and usage of Parliament, for then your Lordships may not only lessen the rates and tune, but you may chose whether you will send us the Bill or no back again with amendment, which was never heard of. And, if that may be, why was it not done so now?
Fourthly, that Clerk says your Lordships may increase impositions too, which part of the case you thought not fit to cite, because you pretend not to it.
Fifthly, Brook., Parlm 3, puts a quaere upon the case, as it deserved.
But if the law books are to be heard in this matter, 30 H. VIII., Dyer 43, is a judicial authority where subsidy is defined to be a tax, "Assess page 116 p' Parliament & Grant al Eoy p' les Communs durant vie de chest' on Eoy tantu p Defence des Merchants sur le Mere."
The provisoes in the Bill of 1° II. VIII., which your Lordships seem mainly to rely upon, we conceive to be of no force at all, unless it be against your Lordships; for, by your Lordships' Journals, the case was this: The Bill itself did noc pass till 3 H. VIII.; and upon the forty-third day of the Parliament the Lords assented to it. Afterwards, upon the forty-fifth day, two provisoes came in, one touching the merchants of the Hanse Towns, another touching the merchants of the staple of Calais. Both were signed by the King and the Chancellor; and the Biuhop of Winchester did declare that the signiug of those provisoes by the Kiug's own hand was enough, without the consent of either House. So that the addition of those provisoes prove nothing for which your Lordships cited them, because—
1. They were signed by the King;
2. They were brought in, against all course of Parliament, after the Bill passed;
3. The provisoes were nothing but a fleving of former rights, usually considered in former Acts of that nature;
4. Your Lordships' Journal declares that the King, without those provisoes, might have done the same thing by his prerogative. Only this may be fit to be observed by the way: that, as the Bill was a grant of the Commons alone, so the thanks for that Bill was given to the Commons alone; and so appears upon the endorsement of that very record.
The precedents for the Commons which on the sudden we find (for we have had but few hours to search) are all these following:—
11 E. I., Walsingh., 471. Populis dedit Iiegi trieesimam partem nonum.
25 E. I., WaU.t 486, & pag' 74. Pojmlus dedit Bcgi denarium nonum.
7 H. IV., Wah.t 566. Postquam milites Parliamentarcs din distulissent concedcre Iiegi subsidium in fins tamcn fracti coiicessere.
6 H. IV., Wals., 564. Subsidium denegatum fuit Proceribus renitcntibus.
So, hitherto, when granted, the Commons gave it; when denied, the whole Bill rejected; never abated.page 117
1 E. III., Stat. 2, c. 6. The Commons grieved that when they granted an aid, and paid it, the taxes were reviewed.
18 E. III., cap. 1. Statute at large. The Commons grant two fifteenths. The great men grant nothing, but to go in person with the King.
36 E. III., cap. 11. The King, having regard to the grant made by the Commons, for three years, of wood and leather, grants that no aid be levied but by consent of Parliament.
21 R. II., N. 75. Is the first grant of tonage and poundage for life; and it was given by the Commons alone.
2 H. VI., N. 14. The Commons grant tonage and poundage for two years.
31 H. VI., N. 7, 8, 9, 10. The Commons grant tonage, &c., for life.
8 Ed. IV., N. 30. The Commons grant twotenths and two-fifteenths.
12 E. IV., c. 3. The grant for tonnage and poundage for life is recited to be by the Commons, and most of the rates mentioned in the Bill.
The wars of Yorke and Lancaster are so far from weakening these precedents, it strengthens them rather, for no man can think the Lords were then in less power, or less careful of their rights, than your Lordships are now. Wherefore, if, in those days, those forms were approved by those mighty men, it is a sign the right is clear.
1 H. VIII. Commons, by assent of the Lords, grant tonage.
15 H. VII. In Ireland was the first grant of tonage and poundage: but it said, at the prayer of the Commons it is enacted: which, in a kingdom where they are not tied to forms, shows the clear right.
1 E. VI., cap. 13; 1 Mar., cap. 8; 1 El., cap. 19. We, your poor Commons, by advice, &c., grant: and also avers the right, time out of mind, to be in the Commons. In like manner this statute of the 1st of El, cap. 19, gives us occasion to put your Lordships in mind of another precedent, which appears in your own Journals, Wednesday, 15 Feb., 1 Eliz.; for, while the Bill was passing, the inhabitants of Cheshire and Wales petition the Lords upon the second reading, that, forasmuch as they were subject to pay the Queen a certain duty called miset, therefore they might be excused of the subsidy page 118 and abated their parts of it. The Lords, who then knew they had no power to diminish any part of the aid granted by the Commons, did therefore address themselves to the Queen in their behalfs. The Queen commands an entry to be made in the Journal of the House of Lords, that she was pleased that the Cheshire men and the Welsh men should be respited the mises when they pay subsidies, and respited the subsidies when they pay mises; which is a strong proof that, as the Commons alone grant, so nobody can diminish their grant; else what need had the Lords to apply themselves to the Queen for it?
17 Car. I. Tonage and poundage was granted once for a month; then again for three months: but still the grant was by the Commons. In those days (how tumultuous soever) the Commons did not rise against the Lords; they agreed well enough.
- 12 C. II., cap. 4, tonage.
- Cap. 24, for £7,000.
- Cap. 23, excise for life.
- 12 C, cap. 27, for £420,000.
- Cap. 19, £70,000 more.
- 13 C. II., cap. 3, £1,200,000.
- 14 C. II., cap. 10, chimney money.
- 15 C. II., cap. 9, four subsidies.
- 16 & 17 C. II., cap. 1, Royal aid.
- 17 C. II., cap. 1, Oxon, £1,250,000.
- 18 C. II., cap. 1, Poll Bill.
- 19 Car. II., cap. 8, eleven months' tax.
- 20 Car. II., cap. 1, £310,000 (wine).
- 22 C. II., cap. 3, wine and vinegar.
- 23 Car., subsidies, Id. per pound.
- Additional excise.
- Impost on the law:
- And the preamble of this very Bill now in question.
All grants of the Commons; yet none of those Bills were ever varied by your Lordships or your predecessors, which, if there had been such a right, would, some time or other, have been exercised, though in very small values, purposely to preserve that right.
Thus an uninterrupted possession of this privilege ever since 9 H. IV., confirmed by a multitude of precedents both before and after, not shaken by page 119 one precedent for these three hundred years, is now required to be delivered up or an end put to all further discourse; which opinion, if it be adhered to, is, as much as in your Lordships lies, to put an end to all further transactions between the Houses in matter of money, which we pray your Lordships to consider:
Because there appears not to the Commons any colour from the precedents cited by your Lordships why your opinions should be so fixed in this point, we suppose the main defence is in the reasons that have been given for it.
That paper begins with an observation that your Lordships had neither reason nor precedent offered by the Commons to back their resolution, and yet concludes with an answer to a precedent then cited by the House of Commons, viz., the Act of Tonage and Poundage now in force; and if your Lordships heard but one precedent then, you have now a great number besides those 1 of 3 E. I., and H. VIII., and 9 H. IV., and divers others your Lordships furnished us with.
Before the Commons answer to your Lordships reasons in particular, they desire to say first, in general, that it is a very unsafe thing, in any settled Government, to argue the reasons of the fundamental Constitutions, for that can tend to nothing that is profitable to the whole.
And this will more sensibly appear to your Lordships if the grounds and foundations of judicature be examined.
For there are several precedents in Parliament and some in book cases, which prove that the judicature is not to be exercised by all the Lords, but only such as the King is pleased to appoint. So is the Book Case of 22 E. III., 3 A. 6. And so is the Parliament roll, 25 E. III., N. 4; and divers other rolls of Parliament.
Several other precedents there are where the Commons, by the King's good pleasure, have been led into a share of the very judicature. So are the 42 E. III., N. 20, 21; 31 H. VI., N. 10; 8 Ed. IV., Hugh Brice's case, in the rolls of Parliament.
Some precedents there are where it was assigned for error in the House of Peers that the Lords gave judgment without petition or assent of the Commons. So is 2 H. V. N. 13.page 120
Would your Lordships think it safe that a dispute should now be made of the very rights of judicature, because we have such precedents?
If usage for so long a time have silenced all disputes touching your Lordships' judicature, shall that usage be of no force to preserve the privileges of the Commons from all further question?
Also there is a precedent of an Act of Parliament passed by the King and Commons alone, without the Lords—viz., 1 E. VI., c. 5, and that twice approved—viz., 1 Eliz., c. 7, and 5 Eliz., c. 19, which do both allow and commend this Act.
Shall we therefore argue the foundations of the Legislature because we have such precedents?
But, to come to particulars,—
1. Your Lordships' first reason is from the happiness of the Constitution, that the two Houses are mutual checks upon each other.
Answer: So they are still: for your Lordships have a negative to the whole.
But, on the other side, it would be a double check upon His Majesty's affairs if the King may not rely upon the quantum, when once his people have given it; and therefore the privilege now contended for by your Lordships is not of use to the Crown, but much to the contrary.
2. Your Lordships' reasons, drawn from the writ of summons, is as little concluding, for though the writ do not exclude you from any affairs, yet it is only dc quibusdam arduis negotiis; and must be understood of such as by course of Parliament are proper, else the Commons, upon the like ground, may entitle themselves to judicature, for they are also called ad faciend dc consentiend dc quibusdam arduis & super negotiis antedictis.
3. Your Lordships proceed to demand where is that record or contract in Parliament to be found where the Lords appropriate this right to the Commons in exclusion of themselves?
Answer: To this rhetorical question the Commons pray they may answer by another question: Where is that record or contract by which the Commons submitted that judicature should be appropriated to the Lords in exclusion of themselves?
Wherever your Lordships find the last record they will show the first endorsed upon the back of the same roll.page 121
Truth is, precedents there are where both dries do exercise those several rights; but none how either side came by them.
4. If the Lords may deny the whole, why not a part?—else the Commons may at last pretend to bar a negative voice.
Answer: The King must deny the whole of every Bill, or pass it; yet this takes not away his negative voice. The Lords and Commons must accept the whole general pardon, or deny it; yet this takes not away their negative.
The clergy have a right to tax themselves; and it is a part of the privilege of their estate. Doth the Upper Convocation House alter what the Lower grant? Or do the Lords or Commons ever abate any part of their gift? Yet they have the power to reject the whole. But, if abatement should be made, it would insensibly go to a rising, and deprive the clergy of their ancient right to tax themselves.
5. Your Lordships say, Judicature is undoubtedly ours, yet in Bills of judicature we allow the Commons to amend and alter: why should not the Commons allow us the same privilege in Bills of money?
Answer: If contracts were now to be made for privileges, the offer might seem fair: but yet the Commons should profit little by it; for your Lordships do now industriously avoid all Bills of that nature, and chuse to do many things by your own power which ought to be done by the legislative, of which we forbear the instances, because your Lordships, we hope, will reform them; and we desire, not to create new differences, but to compose the old.
6. Your Lordships say you are put to an ignoble choice either to refuse the King's supplies when they are most necessary, or to consent to such ways and proportions which neither your own judgment nor the good of the Government or people can admit.
Answer: We pray your Lordships to observe that this reason—
1. Makes your Lordships' judgment to be the measure of the welfare of the commons of England.
2. It gives you power to raise and increase taxes, as well as to abate; for it may sometimes, in page 122 your Lordships judgments be for interests of drade to raise increase a rate, as well as to lessen its and then, still you are brought to the same ignoble choice, unless you may raise the tax.
But it is a very ignoble choice put upon; the King and his people that either His Majesty must demand and the Commons give so small an aid as cap never be diminished, or else run the hazard of your Lordships re-examination of the rates; whose proportions in all taxes, in comparison to what the commonality pay, is very inconsiderable.
7. If positive assertion can introduce right the Lords have no security, but the Commons may extend a right as they judge it necessary or expedient.
Answer: We hope no assertions or denials, though never so positive, shall give or take away a right; but we rely upon usage on our side, and non-usage on your Lordships part, as the best evidence by which your Lordships, or we, can claim any privilege.
8. Your Lordships profess a desire to raise our esteem with His Majesty and the whole kingdom, but not by the under-valuation of the House of Peers.
Answer; We have so great confidence in His Majesty's goodness that, we assure ourselves, nothing can lessen His Majesty's esteem of our dutiful affections to him; and we hope we have deserved so well of our country, by our deportment towards His Majesty, that we shall not need your Lordships' recommendation to any who wish well to His Majesty or the present Government.
But we are so far from wishing to raise an esteem by any diminution of your Lordships' honour or privileges that there never was any House of Commons who had a more just and true respect of that noble Constitution of a House of Peers; of which your Lordships have had frequent instances, by our consenting to several clauses in former Bills for the securing and improving your Lordships' privileges.
9. We are sorry to see your Lordships undervalue the precedent of this last Act of Tonage and Poundage, because, though it were an Act of the last Convention, it was confirmed in this Parliament, and because the right of the Commons there asserted was pursuant to a former precedent in page 123 1642; and possibly had not passed so if the younger members of that Convention had not learned from some of those great and noble Lords who now manage the Conference for your Lordships, and were then Commoners, that this was the undoubted right of the Commons.
To conclude, the Commons have examined themselves and their proceedings, and find no cause why your Lordships should put them in mind of that modesty by which their ancestors showed a great deference to the wisdom of the Lords, for they resolve ever to observe the modesty of their ancestors, and doubt not but your Lordships will also follow the wisdom of yours.
It was unanimously Resolved, That the thanks of the House be returned to Mr. Attorney-General for his great pains and care in preparing and drawing up the reasons delivered to the Lords, in answer to their reasons, which was by him performed to the great satisfaction of this House, in vindication of their privilege, and just and undoubted right of the Commons of England.
And Mr. Speaker did, accordingly, deliver the thanks of the House to Mr. Attorney-General.
By Authority: G. Didsburt, Government Printer, Wellington.