and solicitor the 22nd of December upon a Thursday: the House of Commons sent it up again 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 precedents, both concerning the legislative and the judicature, that upon better consideration he will not find cause of great encouragement from them to argue the foundations of either power in order to that super-structure which he would rear, whether in diminution of that power which is challenged by the House of peers in the legislative for impositions ; or maintenance of that which he pretends to for the House of Commons in point of judicature.

And now we come to his particular answers to the reasons given by the Lords. And to so much and so many of those answers, as seem to contain 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, only this shall be said, Auferat oblivio sipotest, si non, silentium teget.

To the first reason then given by the Lords, which was, That the happiness of the constitution, is to have one House to be a check 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 replied, that to have a negative voice is not to be a check. A negative voice is one thing, a check is another. The king hath a negative voice to what both Houses do, 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 another; 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 wholly reject what the other hath done, be it an account or anything else, he can only examine it if it be right; and if any error be, he can correct it and reform it, and make it such, as that he who employs them both, may receive no damage nor prejudice by it. And this is the proper work of the House of peers, as they are a check to the House of Commons (for they have a negative voice besides, which is not now the question, but only 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 only 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 bear it; if out of trade, so as trade cannot bear it (which is the proper question now) or 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 damage, 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 grasps too much, holds nothing; so if more be given than can be paid, nothing may be received. A thing which king James of blessed memory did well understand; and therefore in the session of parliament 7mo. the 21st of March, he called both Houses to him to Whitehall upon occasion of an aid 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 murmur at it; and so should the king find himself deceived in his Calcul, and the people likewise be grieved in their hearts. And a little after he added these words,-I do not desire you should yield to that extreme in giving more than is fit, 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 been (as among the wisest of men there may be) the Lords are

there to discharge their trust, and so rectify, 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 again. Which answers the second part of what is objected, That it would be a double check upon his majesty's affairs, if he may not rely upon the quantum, when once his people have given it. So far from it, that it will be an advantage to his majesty's 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 been less to the king, but much greater at the year's end; for if trade be over-burthened once, it sinks, and yields nothing, and no where is the proverb more truly verified, That light gain makes the heavy purse, than in the return upon trade, to make it quick and easy, which cannot be, if it be overcharged.

Secondly-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 as well entitle themselves to judicature, for they are also called to treat de quibusdam arduis. To this is replied, that Quædam ardua compriseth all that the parliament takes cognizance of, which are the great and arduous affairs of the kingdom, 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 kingdom, 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 kingdom, 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, arms, stores, and all things needful for the defence of the kingdom, and to defray all other charges incident to the crown. But the exercising of a judicature is clean of another nature, and the proper work of a Court of justice, which the House of peers 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 peers then becomes a Court of justice, for the exercise of a judicial power in those extraordinary cases, which by the custom and usage of parliament are within their cognizance and jurisdiction, and have been 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 treat.

Then for the third reason, to which was given a rhetorical answer (for there was the rhetoric) The Lords had, by way of question, proposed to know, when they had appropriated this right of imposing upon merchandises, 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 known maxim, Quod nostrum est, sine facto seu defectu nostro amitti, seu in alienum transferri non potest. This was no rhetorical question, but the answer was rhetorical, to give the Lords a Quid pro Quo, with another question, and ask-Where was the record by which the Commons submitted, 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 only of custom and prescription, from the very beginning of parliaments before there was a House of Commons, but a good law made in the case, and the strongest kind of law; that is to say, to declare a right, (not to constitute it) for that right had been 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 au Roi et as Seigneurs et nient as Cões, &c. That as judgments belong only to the king and Lords, and not to the Commons, so they pray that no entry may be made in parliament to make them parties now or hereafter to any judgment given or to be 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 no endorsing upon it of the other record, to make the Commons the sole unlimitted and uncontroulable disposers of the people's money; for that indeed is only to be found upon the back side of the Salique law, as the gentleman said of a thing that was no where to be found, from whom this whole conceit is borrowed.

To the fourth 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 manager's 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 clergy's 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 all which no more need be replied than what hath been already said, that in all things of which the Houses can take cognizance, they have a deliberative voice, as well as a negative; and by the same reason that the one is taken away, the other may be taken away likewise. But of these things they have no cognizance; not of the pardon, because it is the king's free gift; and as for the subsidy of the clergy, the clergy would tell them, 4 R. 2. n. 13, 14, when the House of Commons had offered to grant an aid, if the clergy would pay a third part of it, who held a third part of the realm

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