Sir Ed. Sandys would have present answer given to the Sheriffs, as Mr. Hackwell spake; and that in the afternoon we should acquaint the Lords with what we have done.

Sir Edw. Cooke wisheth, that his tongue may cleave to the roof of his mouth, that saith, this House is no court of record; and he that saith this House hath no power of judicature, understands not himself: for, though we have not such power in all things, yet have we power of judicature in some things, and therefore it is a court of record. The King's-bench can meddle with no real actions, nor the Common Pleas with any business concerning the crown, and yet are they courts of record: That no liberty can be taken from any court, but by act of parliament; and this record sent hither by the king is no act of parliament, and therefore cannot prejudice our liberty: Multi multa, nemo omnia norit :' That he knoweth that this is a court of record, or else all the power and liberty of this House were overthrown. He would have no supersedeas to be sent to the sheriff, because he hath no warrant for to see the execution of the sentence on Floid; but would have a message sent by word of mouth, that we will spare the sheriff's attendance till another time, when they shall have further warning.

It is ordered accordingly, and a Message by word of mouth is sent to the sheriffs by our usher or serjeant, that we discharge their attendance, till we shall give them further warning.

Sir Robert Phillips moveth that since we have given testimony of our duties to the king more than any precedent doth shew of the like to any king, he thinketh it good that we beseech his majesty, on so good an occasion, to give us leave to create this precedent, that our judgment and sentence may not be scandalized.

Sir Ed. Montague would not have us to go to the Lords: It is no prejudice for us to stay an execution; and therefore he would have us (in defence of what we have done, and to maintain our judgment and sentence) to frame a bill to this effect, and to dispatch the same with all expedition.

Mr. Crewe saith, that we decline from what we have done, if we strengthen it by a bill.

Mr. Solicitor would have us go to the king with thanks for his care, and to let his majesty be acquainted with the reasons of our judgment, and to desire his majesty to confirm it. He liketh well of having a bill, but thinks it will be

too tedious.

Mr. Finch saith, that it hath been resolved in the King's Bench, that a Habeas Corpus cannot be granted to remove a prisoner committed by the lords of the council. He would have us to beseech his majesty to corroborate our power in this business, that our judgment or sentence may be put in execution, since the same proceeded out of our zeal to his majesty and his children.

Sir Dudley Digs saith, that the Sentence is given and known abroad, and now to take away

any part of it would but lay a stain on the judgment of the House; and therefore he would have us send to the king, and desire, that since we have been a dutiful Parliament, he would be pleased to confirm the Sentence we have given.

May 2, p. m.

It is agreed, by question, that the Speaker, accompanied with some of this House, shall go to the king with a Message concerning this business of Floid.

Mr. Noye would, that we should give his majesty full Answer to the Record: That we should signify to his majesty, what we have done in this particular; but, for the general of his majesty's queries, touching the Privileges of this House, to acquaint his majesty, that, the Sentence being executed, we will, with all convenient speed, labour to satisfy his majesty, by precedents, in all the rest of the queries.

Sir Edward Mountague saith, that by the ancient course of Parliament we may not appoint what number shall go in a Message to the king, nor when, nor to what place; for those things always stand in his majesty's pleasure to appoint.

It is ordered, That all those of the Council, who are in our House, shall go to the king, to signify to his majesty, that we desire, that all this House with the Speaker may attend his majesty; or, if not all of us, then so many as his majesty will appoint, and at the time and place his majesty shall set down.

The Master of the Wards would have the Message, which we send by the Speaker to the king, to be, that our love and zeal were the ground of our judgment; and therefore to desire his majesty to deal with us as a father herein; but he would have us first of all answer to that Paper or Record that he sent us.

It is ordered, and a Committee appointed to go presently to draw the Message which the Speaker shall deliver to the king.

Mr. Secretary reporteth the king's answer to the Message, that the king is graciously pleased, that all the House, accompanied with the Speaker, shall come to speak with him tomorrow, touching the Censure given by this House on Floid, in the afternoon at two o'clock, in the hall at Whitehall.

May 3.

The substance of the Message to be delivered by the Speaker, from this House to the king. To present to his majesty, first, all humble thanks for his gracious expressing and understanding of our disposition and affection in the Sentence which was by this House given on Floid, the malicious reviler of his majesty's children: To shew his majesty, that it was no the intent of the House to exceed precedents nor to win any further power to ourselves; an though we will not dispute the juridical powe of this House, yet we humbly shew, that the precedent (which his majesty sent to us) do not bind us now, because it is no act of Parlia

ment: To desire humbly, that his majesty will be pleased to strengthen and countenance this Sentence, since the ground and cause of it was our fervent desire to express our humble and hearty affections to his majesty and his children.

Mr. Secretary saith, that the king hath in this particular made a question of the power of our House; and for us to stand upon this power of ours, he holdeth it unfit, unless we were better provided with precedents than he thinketh we can have; for, if the king should deny it, we are for ever barred.

The Master of the Wurds saith, that in this business we have to deal with the Lords as well as the king; for this Sentence of ours doth concern their lordships and the privileges of that House: That our desire to have our Sentence confirmed, is in a manner to desire to make a new precedent: He would have us to take such a care to satisfy all, as that the Lords may not claim that their privileges are interested in this business, which, they may perhaps say, appertained to them.

Mr. Hackwell saith, that the precedent sent to us by his majesty doth not bind us any more than it doth the Lords; for in it is expressed, that the Lords could not judge alone, which the succeeding practice since sheweth to be otherwise; but we cannot shew any practice that we have alone given judgment in the like case to

this of Floid.

The Speaker delivereth our Message to the king, our whole House being present. The Speaker's speech vid. fol. 158; with this also, that we think the Record sent us by his majesty is no other than an Answer to a petition exhibited by the Commons "That we beseech, that the execution of the Judgment given by us on Floid may not to be deferred, to the discomfort of his majesty's Commons, and the discouragement of that House."

The King answereth; That he ever speaketh from his heart: That he will shew at all times to us a fatherly love and a fatherly care: that he would have us to proceed with businesses in a right course. He knoweth, that what we have done proceedeth out of love to him and his children, but out of too great a real comes heresy; and saith, that we have proceeded with too much celerity and alacrity: that the lawyers who were present are not to be excused. If that Floid be guilty, (as his Majesty believeth) he deserves a greater pu

nishment: if our precedents be good, and done in a peaceable time, they are lawful; but reason (whereby we say we will shew that we have power to judge the said cause) hath so great a latitude, as he knoweth not how to answer it; for it is both his opinion and ours, if judges go to reason, and leave point of law, they wander. He would have us seek forth precedents to shew the same: that his majesty even now received a Petition from Floid, who confesseth the deed, but yet would not have us condemn a denying man, but by witnesses on oath. In the mean time (till we have presented to his majesty a Petition of what we desire) his majesty will see such punishment inflicted on him as we shall think enough. May 4.

Mr. Secretary delivereth a Message from his majesty. That his majesty, as soon as we were yesterday parted from him, gave order to his learned council, to see whether Floid had confessed the fault (for which this House sentenced him) or no; and the Petition which was delivered yesterday to the king, (and which his majesty yesterday mentioned) was not from Floid himself, but from Floid's son: but Floid himself absolutely denieth the words, and therefore his majesty will send it and him to the Lords to-morrow, that the witnesses against him may be there examined on their oaths, and that Floid may be punished as severely, or more, than we adjudged him to be: that his majesty expects our Answer, touching our sending him a petition, and concerning our meddling with Floid, he being his majesty's prisoner.

Mr. Solicitor saith, that he and Mr. Attorney did, by the king's command, examine Floid, who denieth absolutely the words for which he is here sentenced; and the said Floid doth also deny another business which Mr. Attorney did put him in mind of, and had under the said Floid's own hand that the king said he did the less believe Floid for his denying that other business; and that his majesty said, that, if we can find out a better way for this business of Floid than to go to the Lords, he shall like well of it, but would not have us condemn a denying man without witnesses on oath.

Sir Robert Phillips saith, that we censured Floid out of our duty and respect to the king and his children, wherein we shewed our love and our duty; but we are unfortunate.

Mr. Alford saith, he will never consent that we should send this to the Lords, for that would be a scandal to our judgment; and that, if we sit down that the Lords may have it out of our hands, we are unworthy of being parliament men. He saith, he must say thus much, though he never speak more.

Sir Dudley Digs saith, that we have done herein our best; and, though we have not done such as may be executed, we have yet shewn ourselves good subjects; and therefore he would have us go on with what may be good for the commonwealth.

Sir George Moore saith, that he conceiveth, that what we did in Floid's business was justice and done justly: that the civil law saith, that in rebus dubiis et obscuris judgment shall be given on oath; but, where the matter is clear, judgment may be justly given without oath and these words were clearly proved to us, by the concurrency of divers witnesses; and therefore what we have done is done justly. He would not have us to go to the Lords, but saith, we have discharged our consciences; and, if that which we have done may not be executed he would not have us to hinder our other businesses by further dispute hereof.

Sir Thomas Rowe saith, he thinketh the liberty of our House is hereby shaken: he thinketh our judgment was rightly given, and therefore would have it stand on record as our claim. He saith, he hath heard, that the Lords cannot take notice of a grievance but from us; and, if by this means the king send this business to the Lords, we shall then exclude ourselves, and the Lords will henceforth deal in such business without us, and so we shall lose that privilege.

Sir Henry Poole saith, he thinketh nothing can be done herein without prejudice, if we are not parties to it: he thinketh therefore, that a bill is the best course.

The Master of the Wards saith, that we have herein appealed to the king, and we can go no higher, neither would wish that we should go any lower: he would have us petition the king to deal with us as a father herein, and to take it into his own hands, without preferring it to the Lords.

Sir Samuel Sandes saith, that a kingdom or family being divided cannot stand. It is a maxim in this House that a member of this House may not speak against what is here done that he thinketh, that which was here done against Floid was out of our love to his majesty and his children, and with justice; and, if this sentence be erroneously given, let the party adjudged appeal. He saith, that we are a court of record, and every court of record hath power to give an oath; and want of use taketh not away the jurisdiction of a court. He would have our judgment entered, and, if our love to his majesty and his children hath herein corrupted us with too much zeal, let him be the judge of it, for whose sake we were so corrupted.. He saith, that the ceremony of taking an oath on a book is de puisne temps; and this was a court of Record before that ceremony was used in the giving of an path. He desireth again, that our judgment may be entered, and then, if the party adjudged appeal, let him take his course; we have discharged our consciences.

Mr. Smith saith, that, if the lady Elizabeth had been present, and complained to the earls marshal, they would have punished Floid without ministering an oath to the witnesses,

for they can give no oath: that he knoweth that the earls marshal have punished and imprisoned without oath in his own case; and shall we, who are the representative body of the whole commonwealth, doubt whether a judgment given by us without oath shall be of less force than that of the earls marshal, who do this only by the king's edict.

Sir Edward Cooke saith, that, when a Judg. ment is ready to be given which concerns the king, as all criminal matters do, there are two acts of parliament that judgment shall not be stayed, though a command come from the king under the great or privy seal: but it is otherwise, when the judgment is to be given for felony or treason; for therein the king is an immediate party, and he may desist to have it prosecuted, as well as an ordinary party may let fall his own suit.

Mr. Solicitor saith, that the Message that was sent this morning from his majesty first drew this business into question; and he now leaveth it to the consideration of this House, whether we will enter this judgment, the king demanding precedents of us, whereby he might see our power to give such a judgment. He feareth, if we do enter this judgment, it will be displeasing to the king.

Sir Edward Sackville saith, that the Journals in the Lords' House of Parliament are recorded every day in rolls of parchment, and therefore he would have ours so done too.

It is ordered, that the Journals of this House shall be reviewed, and recorded on rolls of parchment.

It was thought fit on this long debate of Ed. Floid's business, that a committee should proceed to draw up the Reasons and ground of our Judgment given against Floid, and that the Judgment itself should be set down to be entered in due form; which being accordingly done by a committee, it was accordingly, by order on the question, entered into the Journal of this House.

May 5.

A Message from the Lords signifying, That they have had, during this parliament, much contentment in the correspondency between us and them; and that they, having heard of the censure given by this House against Floid, do desire a conference with this House, for the accommodating of that business in such sort as may be without prejudice to the Privileges of either House; the number to be the whole House, the time three o'clock in the afternoon, place the painted chamber; and power to be given to the committees of both Houses to confer and debate freely, that we may the better understand each other's reasons.

Sir Ed. Cecil saith, that it is a rule amongst great personages and princes, that, if they would give a respectful answer, they send it not but by their own ambassador or servant.

Answer is given to the Message from the Lords, That this House receiveth their lordships' message with a great deal of comfort

and contentment, and that we will (sitting the House) send their lordships further answer to the same, by some members of our own

House.

Sir Samuel Sandes would not have diversity of opinion thought to proceed from diversity of affection; for perhaps he must differ in opinion from others in this House more worthy. He saith, if we send to the Lords that we will first hear them and then answer, we then deny a Conference; and he would not have us to make that sour, which we perceive is sweet in them, that is, their conceit of us. He would bave us to reason with them from the grounds of the reason of the law: it is human to err; and we see the highest Courts of the king dom have their Writs of Error; but to persevere in that error is belluine, or unworthy a

wan

Mr. Alford saith, we have given a judgment jadically, and caused it to be entered: he would not have us to refuse a conference on it; but if they break out into matter which may tend farther, that then we may desire of their lordships further time to answer it.

It is ordered, that the Master of the Wards shall carry our Answer to the Message from the Lords, and that the effect of it shall be an expression of our joy and contentment in the good correspondency that hath been between both Houses during all the time of this parhament; and that, for our parts, we will endeavour the continuance of the same as far as in us lieth; and that we will meet for the conference, as is desired.

Sir George Moore saith, that there are three things in this business to be considered of and debated: 1. That we are a court of record; and that, he thinketh, will not be opposed: 2. How we took cognizance of this business: 3. The reason which we had to judge and sentence Floid without oath; and it is no more than we do to sheriffs for making of false returns, and other abuses against this House. Sir Samuel Sandes saith, that the question whereon we are to confer with the Lords, is a particular, and not a general question of all our jurisdiction; and therefore he would not have us at the conference debate of any thing that tends not to this particular question. And one question will be, whether this court having the effect of a court of record, be not a court of record; and the other point questionable will be, that we have sentenced without oath; but it was never seen that a judgment was overthrown for want of oath.

oath;

Dr. Googe saith, that we may proceed by for this Court hath jurisdiction, and the giving of an oath is a substantial part incident to a jurisdiction: that to have to give an oath is incident to all jurisdiction, for there is no -place of judicature but hath this power: that all judgment that may be reversed hath one of these defects, nullity or injustice: nay, we have proceeded on oath, for the witnesses did protest and swear on their salvations, that what they witnessed and said was true; and there

wanted nothing but the form of laying of their hand on the book, to make such oath to be without question, which ceremony is not now used in all places, when oath is given; and anciently men swore by laying their hand under the thigh, as did Abrahain's, servant, others by holding up the finger.

Sir Ed. Sandys saith, that the end of this Conference with the Lords is for the accommodating of this business: there is a precedent in Edward, the third's time, that the Lords did censure without an oath: the question will be chiefly, whether this business of Floid be within our cognizance, or no. This business, came to us accidentally by the examination, of the business against the warden of the Fleet; and when we heard of these foul speeches, though we wanted custom to give an oath, yet reason (which is not flying and disputable reason, which the king calls opinion) which is the ground of the law, told us, that we might censure him. He would have us to declare the truth hereof to the Lords.

Mr. Hackwell saith, that this House is a court of record; the king himself did 1. of his reign acknowledge, that this House is a court and judge of record in sir Francis Goodwin's case, 6 Hen. 8, cap. 16, it is there, that the clerk of this House his book is a record. We have power to give an oath; for it appears in the Journals of this House, that one coming into this House, who was no member hereof, had here in the House the oath of supremacy given him, and also of secrecy. If a man deny that here at the bar, which after he confesseth on oath to the Lords, we may here censure him and send him to the Tower: that the judgment given by the Lords and king, 15 Ed. 2, against the two Spencers, was reversed in Ed. 3, time, because it was sans nul accusement; and in the reversing of the judg ment the Commons had a voice.

Mr. Alford moveth that all the parts of this business may be distributed, as the points of law and precedent, to some of the lawyers of this House; the points of reason to be the part of sir Edwin Sandys, sir Samuel Sandes and sir Dudley Digs; and would have us hold to that point of their message, which was, that nothing should be meddled with that is prejudical to the privileges of this House.

Sir Dudley Digs would have us stand with the Lords on the accommodating of this business, and would have us shew precedents, that this is a court of record, and hath power of judicature; and that then the reasons should be shewn why we did proceed herein.

The Master of the Wards saith, that, since we have caused the judgment to be entered, he would not have us stand on it, or say, that we intended not to make it a precedent; for he would have our word and actions agree.

Sir Samuel Sandes would have them to assign us our error, and that we should not go to shew our reasons till their lordships had first shewn ustheir exceptions, and then we should give answer to them.