House of Commons Journal Volume 1: 03 April 1604

Martis, viz. 3 Die Aprilis, 1604

Exchequer.

L. 1. B. TOUCHING Process and Pleading in the Court of Exchequer.

Countess of Nottingham's Nat.

A Proviso, offered to be added to the Bill for the Naturalizing of the Countess of Nottingham, twice read, and, upon Question, ordered to be ingrossed.

Poor, &c.

L. 1. B. For the Poor, and against Depopulation by Inclosure.

Bills of Restitution.

The Three Bills of Restitution ; viz. of the, Earls of Southampton, Essex, and Arundell; being committed to One great Committee, were brought in, and reported by Sir Francis Bacon, without any Amendment; saying they were no direct Reversals of Attainders, but merely Restitutions of Blood, &c. and that the Committee thought them fit to pass, leaving them to the Judgment of the House.

Courts Leet, &c.

L. 1. B. For the better Preservation of the Records of Courts Leet and Courts Baron : - Upon the first Reading (for some notable Mischief appearing in the Bill) put to Question, and rejected. - The Bill preferred by Mr. Johnson.

Purveyors, &c.

L. 2. B. For the better Execution of sundry Statutes Purveyors, touching Purveyors and Car-takers.

Mr. Serjeant Hobart moveth, That upon the Coming of the King's Court into those Countries, that have made their Composition, where the Purveyors do usually purvey, there the Composition, for that Time, might cease.

Exceptions to a Member's Words.

One Griffin Payne, One of the Burgesses for the Town of Wallingford in the County of Berk' upon the second Reading of the Bill of Purveyors, entereth into a bitter Invective against the Proceeding of the House in this Matter of Purveyors; taxing it in these unseemly Terms, That they had sought to dishonour the King, disgrace the Council, discredit the Opinion of the Judges, and did now, by this Bill, go about to hang some of his Servants.

The House, being somewhat troubled with this sudden Speech, did, nevertheless, for the Time, proceed to the Committing of the Bill, viz. to the former great Committee, named upon Sir Robert Wrothe's Motion for Relief in this and other Grievances ; with these added; Sir Edmond Bowyer, Sir Richard Spencer, Mr. Hobart, Sir John Savill, Sir Edward Tirrell, Sir Vincent Skinner, Sir William Burlacy, Sir Henry Goodyeare: - To meet Tomorrow, at Two a Clock in the Afternoon, in the Exchequer Chamber.

Member called to the Bar, and examined.

The House, in Dislike of the former presumptuous and undutiful Speech, uttered by Mr. Payne, as for a great Indignity and Contempt, * * that he might be called to the Bar : And, upon Question, it was accordingly resolved.

He came to the Bar; and, kneeling, he denied the first Words, viz. Dishonouring the King : By the next, he said, he meant, the Disgrace of Sir John Fortescue: The other, he said, concerned himself, being a Purveyor; and behoved him to speak somewhat.

Suspended, for concern in Purveyance.

Upon further Examination, it appeared, he was Mayor of Wallingford; and there upon drawn into Question, that being Mayor of a Town, and an Offender in the point of Grievance complained of, viz. a Purveyor, whether he ought to sit and serve in the House: And the Precedent of Hutton, Bailiff of Southwarke, Anno 35 Eliz. vouched by Sir Edward Hobby. After some Debate, it was, upon Question, ordered, that he should be suspended from his Service here, until the Doubt were cleared, whether he might serve.

This Question, with others of the like Kind, were thought fit to be referred to the general Committee for Privileges; who were appointed to meet on Thursday following, at Two of the Clock in the Afternoon, in the Inner Temple Hall: As also that other Committee for Sir Thomas Shirley's, Case of Privilege, at the same Time and Place.

Privilege- Answer to the King respecting Jurisdiction in Elections.

The Reasons of the Proceeding of the House in Sir Frauncis Goodwyns, Case, penned by the Committee, were (according to former Order) brought in by Mr. Frauncis Moore, and read by the Clerk, directed in Form of a Petition :

To the King's most excellent Majesty;

The humble Answer of the Commons House of Parliament to his Majesty's Objections in Sir Frauncis Goodwyn's Case.

MOST gracious, our dear, and dread Sovereign: Relation being made to us by our Speaker, of Your Majesty's royal Clemency and Patience in hearing us, and

of Your princely Prudence in discerning, shewing affectionate Desire rather to receive Satisfaction to clear us, than Cause to pardon us; we do, in all Humbleness, render our most bounden Thanks for the same; protesting by the Bond of our Allegiance, that we never had Thought to offend your Majesty; at whose Feet we shall ever lie prostrate, with loyal Hearts, to sacrifice ourselves, and all we have, for Your Majesty's Service : And in this Particular we could find no Quiet in our Minds, that would suffer us to entertain other Thoughts, until we had addressed our Answer to Your most excellent Majesty ; for which, nevertheless, we have presumed of the longer Time, in respect we have prepared some Precedents, requiring Search, to yield Your Majesty better Satisfaction.

There were objected against us by Your Majesty, and Your reverend Judges, Four Things, to impeach our Proceedings, in receiving Frauncis Goodwyn, Knight, into our House.

Objectio 1ma. The first, that we assumed to ourselves Power of Examining of the Elections and Returns of Knights and Burgesses: which belonged to your Majesty's Chancery, and not to us : For that all Returns of Writs were examinable in the Courts, wherein they are returnable ; and the Parliament Writs being returnable into the Chancery, the Returns of them must needs be there examined, and not with us.

Our humble Answer is, That until the Seventh Year of King Henry IV. all Parliament Writs were returnable into the Parliament, as appeareth by many Precedents of Record, ready to be shewed ; and consequently the Returns there examinable : In which Year a Statute was made, that thenceforth every Parliament Writ, containing the Day and Place where the Parliament shall be holden, should have this Clause, viz. " Et electionem tuam in pleno comitatu factam, distincte et aperte, sub sigillo tuo, et sigillis eorum, qui electioni illi interfuerint, nobis in Cancellariam nostram, ad diem et locum in brevi content. certifices indilate."

By this, although the Form of the Writ be somewhat altered, yet the Power of the Parliament, to examine and determine of Elections, remaineth; for so the Statute hath been always expounded ever sithence, by Use, to this Day : And for that Purpose, both the Clerk of the Crown hath always used, all the Parliament-time, [a] upon the Commons House with the Writs and Returns ; and also the Commons, in the Beginning of every Parliament, have ever used to appoint special Committees, all the Parliament-time, for examining Controversies concerning Elections and Returns of Knights and Burgesses; during which Time the Writs and Indentures remain with the Clerk of the Crown; and after the Parliament ended, and not before, are delivered to the Clerk of the Petty Bag in Chancery, to be kept there. Which is warranted by Reason, and Precedents. Reason, for that it is fit, that the Returns should be in that Place examined, where the Appearance and Service of the Writ is appointed : The Appearance and Service is in Parliament; therefore the Return examinable in Parliament: Precedents : One in the Twenty-ninth Year of the Reign of the late Queen Elizabeth ; where, after One Writ awarded into Norfolk, for Choice of Knights, and Election made, and returned; a second was, before the Parliament Day, awarded by the Lord Chancellor; and thereupon another Election and Return made: And the Commons, being attended with both Writs and Returns by the Clerk of the Crown, examined the Cause, allowed the first, and rejected the second.

So, Anno 23 Elizabethae Reginae, a Burgess was returned dead ; and a new chosen, and returned by a new Writ: The Party returned dead, appeared ; the Commons, notwithstanding the Sheriff's Return, admitted the first-chosen, and rejected the second.

Also the said Three-and-twentieth Year, a Burgess, chose for Hull, was returned Lunatick; and a new chosen, upon a second Writ. The first claimed his Place : The Commons examined the Cause : and, finding the Return of Lunacy to be true, they refused him; but, if it had been false, they would have received him.

Anno 43 Elizabethae, the Sheriff of Rutlandshire returned himself elected. The Commons, finding, that he was not eligible by Law, sent a Warrant to the Chancery for a new Writ to chuse anew.

Anno 43 Elizabethae also, a Burgess was chosen Burgess for Two Boroughs. The Commons, after he had made Election, which he could serve for, sent Warrant to the Chancery, for a Writ to chuse a new for the other Borough. Of which Kind of Precedents there are many other, wherewith we spare to trouble Your Majesty.

All which together, viz. Use, Reason, and Precedents, do concur to prove the Chancery to be a Place appointed to receive the Returns, as to keep them for the Parliament; but not to judge of them. And the Inconvenience might be great, if the Chancery might, upon Suggestions, or Sheriffs Returns, send for new Elections; and those not subject to Examination in Parliament: For so, when fit Men were chosen by the Counties and Boroughs, the Lord Chancellor, or the Sheriffs, might displace them, and send out new Writs, until some were chosen to their liking : A thing dangerous in Precedents for the Time to come; howsoever, we rest securely from it at this present, by the now Lord Chancellor's Integrity.

Objectio 2a .That we dealt in the Cause with too much Precipitation, not seemly for a Council of Gravity, and without Respect to Your most excellent Majesty our Sovereign, who had directed the Writ to be made; and being but half a Body, and no Court of Record alone, refused Conference with the Lords, the other half, notwithstanding they prayed it of us.

Our humble Answer is, to the Precipitation, That we entered into this Cause, as in other Parliaments of like Cases hath been accustomed; calling to us the Clerk of the Crown, and viewing both the Writs, and both the Returns ; which, in Cases of* * * * and Motions, though not of Bills, (requiring Three Readings) hath been warrant by continual Usage amongst us: And there, upon well finding, that the later Writ was awarded, and sealed, before the Chancery was repossessed of the former, (which the Clerk of the Crown, and the Sheriff of the County, did both testify, and well held to be a clear Fault in Law) proceeded to Sentence, with the less Respect of the latter Election. For our Lack of Respect to Your Majesty, we confess, with Grief of our Hearts, we are Right sorry it shall be so conceived ; protesting, that it was no way made known unto us before that Time, that Your Majesty had taken to Yourself any special Notice, or directed any Course in that Cause, other than the ordinary awarding Writs by Your Highness Officers in that Behalf. But if we had known as much (as some will have) by Your Majesty's royal Mouth, we would not, without Your Majesty's Privity, have proceeded in that Manner. And further it may please Your Majesty to give us leave to inform You, that, in the Examination of the Cause, the Sheriff avouched unto us, that Goodwyn agreed to yield the first Place of the Two Knights to Sir John Fortescue; and in his own Person, at the Time of Election, with extraordinary Earnestness intreated the Electors, it might so be; and caused the Indentures to be made up to that Purpose ; but the Electors utterly refused to seal them.

Concerning our refusing Conference with the Lords ; there was none desired, until after our Sentence passed ; and then we thought, that in a Matter private to our own House, which, by Rules of Order, might not be by us revoked, we might, without any Imputation, refuse to confer : Yet, understanding by their Lord * , that Your Majesty had been informed against us, we made haste (as in all Duty we were bound) to lay open to Your Majesty, our good and gracious Sovereign, the whole Manner of our Proceeding; not doubting, though we were

but Part of a Body, as to make new Laws; yet, for any Matter of Privileges of our House, we are, and ever have been, a Court of ourselves, of sufficient Power to discern and determine, without their Lordships, as their Lordships have used always to do for theirs, without us.

Objectio 3 a. That we have, by our Sentence of receiving Goodwyn, admitted, that Outlaws may be Makers of Laws; which is contrary to all Laws.

Our humble Answer is, That, notwithstanding the Precedents, which we truly delivered, of admitting and retaining Outlaws in personal Actions, in the Commons House, and none remitted for that Cause; yet we received so great Satisfaction, delivered from your Royal Majesty's own Mouth, with such excellent Strength, and Light of Reason, more than before in that Point we heard or did conceive, as we forthwith prepared an Act to pass our House, that all Outlaws henceforth shall stand disabled to serve in Parliament: But as concerning Goodwyns Particular, it could not appear unto us, having thoroughly examined all Parts of the Proceedings against him, that he stood an Outlaw, by the Laws of England, at the Time of the Election made of him by the County; and that for Two Causes : The first is, that where the Party outlawed ought to be Five Times proclaimed to appear in the Sheriff's County Court, and then, not appearing, ought to be adjudged outlawed by the Judgment of the Coroners of the County; there appeareth no Record made in the Hustings of London, that Goodwyn was Five Times proclaimed, or that the Coroners gave Judgment of Outlary against him; but a Clerk, lately come to that Office, hath now, many Years after the Time, and since this Election, made Entries, interlined with a new Hand, that he was outlawed. To which new Entries we could give no Credit; for that the Parties, at whose Suit Goodwyn was sued, have testified in their Writings of Release, that they never proceeded further, than to take out the Writ of Exigent for an Outlary ; and, being then paid their Money, desisted there. By which we find, that Goodwyn was not Five Times proclaimed, nor adjudged outlawed ; being a Thing usual in London to spare that Proclamation and Judgment, if the Party call not upon it; and no Record being made for many Years together, that either of them was done.

The second Cause was, for that the Writ of Exigent, by which the Sheriff was commanded to proclaim him Five Times, was never lawfully returned, nor certified by Certiorari; without which, we take it, that Goodwyn stood not disabled as an Outlaw.

To this adding the Two general Pardons by Parliament, which had cleared the Outlary in Truth and Substance, if any were; and that Goodwyn could not apply the Pardons by Scire facias (for that no Record nor Return was extant of the Outlary, whereupon he might ground a Scire facias) we were of Opinion, and so your Majesty's most Reverend Judges would have been, if they had known thus much, that Goodwyn stood not disabled by Outlary to be elected or serve in Parliament. But when we considered further, that the Course taken against Goodwyn, for drawing him into this Outlary, of Purpose to disable him to serve in this Place, whereto the County had freely elected him, was unusual; we could not, with the Reputation of our Places, serving as a Council of Gravity, in Allowance or Continuance of that Course, censure him to be rejected as an Outlaw : The Particulars of which were these; viz. Two Exigents awarded; * * the other Seven Years past, to the Hustings in London; no Entry made of Five Proclamations, nor of any Judgment of the Coroners, nor any Return of the Exigents made, or endorsed; the Party Plaintiff satisfied; the pretended Outlaries being put upon meane Process; and, as to Your Majesty's Duties and Contempts, pardoned; now since Goodwyn was elected Knight, the Exigent now sought out since the Election, procured to be returned in the Name of the Sheriffs, that then were, and are long since dead ; a new Entry made of the Five Proclamations, and Coroners Judgment; and now a Return made of that old Exigent, which could be of no Use, but only for a Purpose to disable him for that Place: Upon all which, we could do no less, in true Discretion, than certify the Election made secundum aequum et bonum.

Objectio 4ta. That we proceeded to examine the Truth of the Fact of Outlary, and gave our Sentence upon that; whereas we ought to have been bound by the Sheriff's Return of the Utlary, from further examining, whether the Party were outlawed, or not.

Our humble Answer is, That the Precedents cited before, in our Answer to the first Objection, do prove the Use of the Commons House to examine vertitatem facti in Elections and Returns, and have not been tied peremtorily to allow the Return; as if a Knight or Burgess be untruly returned dead or lunatick; yet, when he appeareth to the House to be living, and sound, they have, contrary to the Return, received him into the House, preferring the Truth, manifested, before the Return : By which discreet Proceeding there is avoided that great Inconvenience above-mentioned, of giving Liberty to Sheriffs, by untrue Returns, to make and remove whom they list, to and from the Parliament Service, how meet soever the Parties be in the Judgment of the County, or Borough, that elected them.

Thus in all Humility we have presented to your most excellent Majesty the Grounds and Reasons of our late Action, lead with no Affections, but guided by Truth, warranted in our Consciences, imitating Precedents, maintaining our ancient Privileges, honouring Your excellent Majesty in all our services, to which in all Loyalty and Devotion, we bind us, and ours for ever; praying daily, on the Knees of our Hearts, to the Majesty of the Almighty, that Your Majesty, and Your Posterity may, in all Felicity, reign over us and ours, to the End of the World.

Privilege- Jurisdiction in Elections.

These Reasons so set down, and published to the House, Mr. Secretary Herbert was sent with Message to the Lords, That the House had resolved of their Answer to his Majesty in Sir Frauncis Goodwyn' s Case, and had set it down in Writing; and that it should be sent to their Lordships before Four of the Clock in the Afternoon: Who immediately returned their Lordships Answer, That they would be ready at that Time in the Council Chamber at Whitehall, with Thirty of the Lords, to receive what then should be delivered. Then were named Threescore to attend the Delivery of the said Reasons at the Time and Place aforesaid ; viz.

Precedents.

[a] Ex bundello Brevium Parlament. pro Militibus, &c. de Anno undecimo Regni Regis Richardi secundi.

RICHARDUS, Dei Gratia, Rex Angliae et Franciae, et Dominus Hiberniae, Vicecomit. Bedf. et Buck. Salutem. Quia de avisamento Concilii nostri, pro quibusdam arduis et urgentibus negotiis, nos, statum et defensionem Regni nostri Angliae, ac Ecclesiae Anglicanae, contingentibus, quoddam Parlamentum nostrum, apud Westmonasterium, in crastino Purificationis beatae Mariae proxime futuro, teneri ordinavimus, et ibidem cum Praelatis, Magnatibus, et Proceribus dicti Regni nostri colloquium habere et tractatum ; tibi praecipimus, firmiter injungentes, quod de utroque Com. praedict. duos Milites, Gladiis cinctos, magis idoneos et discretos, Comitatuum eorundem, " et in debatis modernis magis indifferentes," et de qualibet Civitate Comitatuum illorum duos Cives, et de quolibet Burgo duos Burgenses, de discretioribus et magis sufficientibus, eligi, et eos ad dictum Diem et Locum venire, facias; ita quod iidem Milites plenam et sufficientem potestatem, pro se et Communitatibus Comitatuum praedictorum, et dicti Cives et Burgenses, pro se et Communitatibus Civitatum et Burgorum praedictorum, divisim ab ipsis habeant, ad faciendum et consentiendum hiis, quae tunc

ibidem de Communi Concilio dicti Regni nostri [favente Domino] ordinari contigerit super Negotiis ante dictis ; ita quod, pro defectu potestatis hujusmodi, seu propter improvidam electionem Militum, Civium, aut Burgensium praedictorum, dicta Negotia nostra infecta non remaneant quovismodo. Nolumus autem, quod tu, seu aliquis alius Vicecomes Regni praedicti, seu aliquis alterius conditionis, quam superius specificatur, aliqualiter sit electus. Et habeas ibi Nomina praedictorum Militum, Civium, et Burgensium, et hoc Breve. Teste meipso, apud Windsor, decimo septimo Die Decembris, Anno Regni nostri undecimo.

Asplion.

Per ipsum Regem.

Radulphus Fitz-Richard, Vicecomes.

VIRTUTE alterius Brevis Domini Regis, huic Brevi annexi, de utroque Comitatu Bedf. et Buck. eligi feci duos Milites, secundmn vim et effectum ejusdem Brevis; quorum Nomina patent inferius: Et ulterius, virtute istius Brevis, de quolibet Burgo Com. praedictorum eligi feci duos Burgenses, prout tenor ejusdem Brevis requirit; quorum Nomina similiter patent inferius:

M. Gerardi Braybrook junioris, Chivaler, unius Militis Com. Bedf.

Johannes Broune,

Richardus Darde.

M. Roberti Dykeswell, alterius Militis ejusdem Com.

Johannes Ward,

Richardus Clerk.

Manuc. Philippi La Vache, Chivaler, unius Militis Com. Buck.

Johannes Bard,

Thomas Galyan.

Manuc. Roberti de Lutton, Chivaler, alterius Militis Com. praedict.

Johannes Darches,

Willelmus Noble.

M. Thomas Frereman, unius Burgens. villae de Bedford,

Richardus Broune,

Henricus Cokett.

Manuc. Willelmi Clerevaux, alterius Bergens. ejusdem Villae,

Johannes Wylde,

Richardus Cotton.

M. Walteri Frer, unius Burgens. Villae de Wiccombe,

Johannes Ponde,

Richardus Tele.

M. Richardi Holyman, alterius Burgens. ejusdem Villae,

Johannes Perrott,

Henricus Deye.

Convenit cum Recordo. Examinatur per Pet. Proby, 31o Martii, 1604.

RICHARDUS, Dei Gratia, Rex Angliae et Franciae, et Dominus Hiberniae, Vicecomiti. Bedf. et Buck. Salutem. Licet nuper per Breve nostrum inter caetera praeceperimus, firmiter, injungentes,quod de utroque Com. praedict. duos Milites, Gladiis cinctos, magis idoneos et discretos, Com. praedict. " et in debatis modernis magis indifferentes", eligi, et eos ad Parlamentum nostrum, quod apud Westmonasterium, in crastino Purificationis beatae Mariae prox. futuro, teneri ordinavimus, ad eosdem Diem et Locum venire faceres; nos tamen attendentes, dictam Clausulum, " in debatis modernis magis indifferentes", contra formam electionis antiquitus usitatae, ac contra Libertatem Dominorum et Communitatis Regni nostri Angliae hactenus obtentam, existere ; volentesque proinde, praedictos Milites libere eligi, modo et forma, prout antiquitus fieri consuevit; tibi praecipimus, firmiter injungentes, quod de utroque Com. praedict. duos Milites, Gladiis cinctos, magis idoneos et discretos, Com. praedict. prout hactenus fieri consuevit, eligi, et eos ad praedictum Diem et Locum venire facias, dicta Clausula non obstante; caeteraque omnia et singula, in dicto Brevi nostro contenta, facias et exequaris, juxta tenorem ejusdem, dictam Clausulam penitus omittens. Et habeatis ibi hoc Breve. Teste meipso, apud Westmonasterium, primo Die Januarii, Anno Regni nostri undecimo.

Frank..

Per ipsum Regem et Concilium.

Convenit cum Recordo.

Restoring Lucas.

L. 1. B. For the Restoring of Thomas Lucas, Gentleman, in Blood.

Paget's Restitution.

L. 1. B. Of Restitution of William Paget, only Son of Thomas, late Lord Paget.

Adjournment.

Mr. Speaker adjourned the Court until Two a Clock in the Afternoon, at which time they were to return again.

Eodem Die, post meridiem.

London Merchants.

L. 1. B. FOR a Court of Merchants within London, for Matters only concerning Merchandizing.

This Bill much disputed, upon the first Reading; and proceeded to the Question of Rejection.

Ordnance.

Sir Robert Wrothe offereth a Bill into the House, which, he said, was agreed on by the Committee, against the Transportation of Ordnance.

London Merchants.

The House entering seriously into Consultation, what Course was to be held with the Lords; as also falling into more Length of Disputation touching the Bill of Merchants, than was expected ; sent some Messengers to the Lords, to excuse their long tarrying; viz. Sir Edward Hobby, Sir Roger Wilbraham, Sir Henry Nevell, Sir Francis Hastings, Mr. Martyn.

Committee of Privileges.

The Committee for Privileges, and that of Sir Thomas Shirley, deferred, upon Motion, until Thursday, in the Exchequer Chamber, at Two of the Clock in the Afternoon.

Privilege-Jurisdiction in Elections.

This Afternoon, about Five a Clock, the Committee appointed, did attend to deliver the Reasons aforesaid at the Council Chamber, according to Appointment and Order of both Houses; and they were delivered by Sir Francis Bacon, One of the Committees, with Desire, that their Lordships would be Mediators in the Behalf of the House, for his Majesty's Satisfaction.