acceptable to God, honourable to pour majesty in all succeeding ages, profitable to bis Church, which shall be thereby increased, comfortable to your ministers, which shall be no more sus men's traditions; and prejudicial to none, but to those that seek their own quiet, credit, and profit in the world. Thus, with all dutiful submission, referring ourselves to your majesty's pleasure, for your gracious answer, as God shall be more sparingly used. That Licenses for Marriage, without Banns asked, be more cautiously granted. These, with such other abuses, yet remaining, and practised in the Church of England, we are able to shew, not to be agree-pended, silenced, disgraced, imprisoned for able to the scriptures, if it shall please your highness farther to hear us, or more at large by writing to be informed, or by conference among the learned to be resolved. And yet we doubt not, but that, without any farther process, your majesty (of whose Christian judg-direct you: we most humbly recommend your ment we have received so good a taste already) is able of yourself, to judge of the equity of this cause. God, we trust, hath appointed your highness our physician to heal these diseases. And we say with Mordecai to Hester," who knoweth, whether you are come to the kingdom for such a time?" Thus your majesty shall do that, which, we are persuaded, shall be highness to the Divine Majesty: whom we beseech for Christ his sake to dispose your royal heart to do herein, what shall be to his glory, the good of his Church, and your endless comfort.-Your majesty's most humble subjects, the Ministers of the Gospel, that desire not a disorderly Innovation but a due and godly Reformation. 77. The CASE between Sir FRANCIS GOODWIN and Sir JOHN FORTESCUF, relative to a Return for the County of Buckingham; as it stands upon the Journals of the House of Commons: 1 JAC. I. A. D. 1604. INTRODUCTION. From 1 Cobb, Parl. Hist. 997. ! stands in the Journals of the Commons at this ON the 26th of March 1604, upon a motion manded to retire to the door: And after, sir Francis Goodwin himself (whom it specially concerned) attending to know the pleasure of the house, was called in, to deliver the state of his own cause, ore tenus; wherein he was heard at large, and commanded again to retire until the house had determined what to do. In this mean time the whole case was at large opened, and argued pro et contra by sundry learned and grave Members of the house, and after much dispute the question was agreed upon, aud made. termined in the Case of the contested election. | House, and then the Clerk of the Crown com Certainly, the king had engaged in a very nice affair, and probably would not have come off with honour, had he not been disengaged by Goodwin's moderation. Sir Francis, chusing to forfeit his right rather than occasion a quarrel between the King and the Commons, desired the house to order the County of Bucks to elect another knight in his stead. The King and Commons equally accepted of this expedient, which prevented them from coming to extremities; but the king found from hence, that no great account was made of the proclamation upon calling the parliament whereby he meant to be master of the elections." Thus far Mr. Rapin. This Case of sir Francis Goodwin was printed, by order of the House of Commons, in 1704, under the direction of Robert Harley, e-q. (afterwards earl of Oxford) then Speaker, on occasion of the famous Debate, at that time, upon the Aylesbury Election. THE CASE. 6 Quest. Whether sir Francis Goodwin were lawfully elected and returned one of the Knights for Bucks; and ought to be admitted and received as a Member of this House ?> Upon this question it was, Resolved in the affirmative, “That he was lawfully elected and returned, and, de jure, ought to be received." Hereupon the Clerk of the Crown was commanded to file the first Indenture of Return and order was given, that sir Francis should presently take the Oath of Supremacy did accordingly. usual, and his place in the House; which he Die Martis 27 Martii 1604. Die Jovis 22 Martii, 1603-4. THE first motion was made by sir William Fleetwood, one of the knights returned for the County of Bucks, on the behalf of sir Francis Goodwin, knight; who, upon the first Writ of Sir Francis Bacon, in reporting a conference Summons directed to the Sheriff of Bucks, with the lords, touching Wardship and other was elected the first Knight for that shire: but things, reported that a lord touched the Case of the Return of his Election being made, it was sir Francis Goodwin as a thing he had heard at refused by the Clerk of the Crown (quia utla-large, but did not understand it; and therefore gatus): and because sir John Fortescue, upon desired to know it more particularly from this a second Writ, was elected, and entered in that place, his desire was, that this Return might be examined, and sir Francis Goodwin received as a member of the house. The House gave way to the motion; and for a more deliberate and judicial proceeding in a case of privilege so important to the house, of Ordered, That the Serjeant (the proper ficer of the house) should give warning to the Clerk of the Crown to appear at the bar at eight o'clock the next morning, and to bring with him all the Writs of Summons, Inden⚫tures, and Returns of Election for the county ⚫ of Bucks, made and returned for this Parliament; and to give warning also to sir Fran'cis Goodwin to attend in person, whom their pleasure was to hear, ore tenus, to deliver the state of his own cause, and the manner and reasons of the proceeding in the Election of the Knights of the Shire for that County.' This being a motion tending to Matter of Privilege, was seconded with another by Mr. Serjeant Shirley, touching an arrest of sir Tho. Riley, &c. Die Veneris 23 Martü, 1603-4. Sir George Copping, knight, Clerk of the Crown in the Chancery, this day, (according to former order) being attended by the Serjeant of the House with his mace, appeared at the bar, and produced all the Writs of Summons, Indentures, and Returns made of the Knights for Buckinghamshire for this Parliament; which were severally read by the Clerk of the house. Answer was made, That they had no Warrant from the house to speak of it. Sir Edward Coke, his majesty's attorneygeneral, and Mr. Dr. Hone, bring a Message from the lords, expressing with what acceptation their lordships entertained their motion yesterday, not only for the matter being of very great weight and consequence, but especially for the manner; namely, That, touching Wardship, they would not petition for ease in it as a matter of wrong, but of grief; and pray to be relieved by grace, and not by justice: And their lordships for answer were desirous, and moved at that time to couple in the same petition the matter of grievance, of Respite of Homage, which his majesty, out of his gracious taken knowledge of. favour and love to his people, had himself And as they conceive it to be likely, that the conference may con'tinue between the two houses, touching the 'said matters: as they are very zealous of the 6 furtherance of their purpose, so are they jealous of any impediment that may breed lett, or hindrance therein: therefore they desire, for a more clear proceeding and removing of all stumbling-blocks, that the former committees may, in a second conference to be had, have authority to treat touching the "Case of sir Francis Goodwin, the Knight for Buckinghamshire, first of all, before any other matter were farther proceeded in.' 4. The answer to this Message, (as in such Upon this Message it was argued by some, That in no sort they should give account to ⚫ the lords of their proceedings in the house; but that Mr. Speaker should from the house be a suitor to his majesty, to have access, and as their common mouth give his highness satisfaction by direction from the house: That now the Judgment of sir Francis Goodwin's case having passed the house, it could not, nor ought not, to be reversed by them. A Precedent, 27 Eliz. cited; where a Bill brought down from the lords, upon the first reading was rejected; the lords sent messengers to demand a reason of their Judgment. It was denied to yield any reason.' This Argument brought forth this Question, which Mr. Speaker was ordered by the house presently to make, viz. Quest. Whether they should confer with the lords, touching the Case of sir Francis Goodwin the Knight for Buckinghamshire?' 'And Resolved, That they should not.' It was then considered as fit to return some Answer of the Message from the lords; and Mr. Secretary Herbert, with some other of the Committees, were appointed to deliver to their lordships, from the house; That they did conceive it did not stand with the Honour and Order of the house, to give account of any their proceedings or doings: but if their lordships have any purpose to confer for the ' residue, that then they will be ready at such time and place, and with such number as their lordships shall think meet.' Upon the last Message to the lords, the messengers return, That their lordships would presently send answer by messengers of their • own.' Sir Edward Coke, his majesty's Attorney General, Mr. Dr. Carew, Mr. Dr. Hone, and Mr. Tyndall, delivered from the lords, That their lordships taking notice in particular of the Return of the Sheriff of Bucks; and ac quainting his majesty with it, his highness conceived himself engaged and touched in honour that there might be some conference of it between the two houses: and to that • end, signified his pleasure unto them, and by them to this house.' Mr. Wentworth, Mr. Martin, Mr. Serj. Sing, sir Rob. Wroth, Mr. Fr. Moore, sir Henry Mountague, sir Wm. Fleetwood, Mr. Fuller, Mr. Serj. Tanfield, Mr. Serj. Hobbard, sir Robert Wingfield, Mr. Hide, Mr. Diet, Mr. Winch, sir Edwin Sandis, sir Fr. Hastings, Mr. Wiseman, sir Geo. Moore, sir Edw. Hobby, sir Rob. Cotton, sir Tho. Lake, sir Oliver St. John, sir Edw. Stafford, Mr. Anthrobus, Mr. Serj. Dodridge, sir Roger Wilbraham, Mr. Solicitor, sir Edw. Tyrrel, to meet at 4 o'clock this afternoon at the ParliamentChamber in the Middle-Temple. Die Mercurii, viz. 28 die Martii. Mr. Speaker, with a great number of the house, assembled at 6 a-clock this morning, with a purpose to treat and resolve what should be delivered to his majesty, (being appointed to attend him the same morning at 8 a-clock) touching the Reasons of their Proceedings in sir Francis Goodwin's Case: but because the house was not then thought full enough for a matter of that consequence, they proceeded to the reading of Bills. Upon motion touching Mr. Speaker's attendance on the king, a Committee was named to accompany him, viz. All the Privy-Council, being members of the house: Sir George Carew, Vice-Chamberlain to the queen, sir Francis Bacon, Mr. Serj. Dodridge, sir Henry Mountague, Mr. Serj. Hobbard, Mr. Serj. Lee, Mr. Fuller, Mr. Hide, Mr. Francis Moore, Mr. Winch, Mr. Tate, Mr. Rd. Martin, Mr. Serj. Shirley, Mr. Serj. Tanfield, sir John Heigham, sir Rob. Oxenbridge, sir Wm. Fleetwood, sir Edwyn Sandis, sir Rob. Wroth, sir George Fleetwood, sir John Scott, sir Herbert Crofts, sir James Scudamore, sir Jerome Horsey, sir Edw. Radcliffe, sir Tho. Holcroft, sir Anthony Rowse, sir Henry Nevill, sir Edw. Mountague, sir Tho. Hobby, sir Michael Sandis, Mr. Tho. Benson, sir Fr. Fane, sir Fr. Hastings, sir Geo. Moore, sir Edw. Hobby, sir Robert Wingfield, sir Maurice Berkley, sir Edw. Tyrrell, sir Wm. Killegrew, sir Fr. Popham, Mr. Fr. Clifford, sir John Savill, sir Tho. Waller, sir Wm Lower, Mr. Nath. Bacon, sir Rd. Verney, sir George Fane, Mr. Toby Matthew, sir Tho. Ridgway, Mr. Edw. Seymour, sir Wm. Bourlacy, sir Rob. Moore, sir Jona. Trelawney, sir Edw. Denny, sir Tho. Walsingham, sir Fr. Barrington, sir Robert Nappier, sir Valentine Knightley, sir George Carew, Master of the Chancery, sir Nich. Halswell, sir John Thynne, sir Tho. Freake, sir Jerome Bowes, sir Edw. Herbert, sir John Leveson, Mr. Dudley Carleton. tees, were this day, at 8 in the morning, apMr. Speaker, together with these Commitpointed to attend his majesty, and to relate the Reasons of the Proceeding of the house in sir Francis Goodwin's Case; where, upon Answer or Reply, such lawyers as be of the Committee are to give their assistance. Die Jovis, viz. 29 die Martii, 1604. Mr. Speaker relateth what he had delivered to the king by warrant from the house the day grief to any purpose in the house to offend him; but only to a mistaking of the law. For matters of fact, he answered them all particularly. That, for his part, he was indifferent which of them were chosen, sir John, or sir Francis: that they could suspect no special affection in him, because this was a Counsellor not brought in by himself.-That he had no purpose to impeach their privilege; but since they derived all matters of privilege from him, and by his against. That there was no Precedent did suit this case fully: Precedents in the times of Minors, of Tyrants, of Women, of Simple Kings, not to be credited; because for some private ends. By the law this house ought not to meddle with Returns, being all made into the Chancery, and are to be corrected or reformed by that court only, into which they are returned. 35 Hen. 6. it was the Resolution of all the Judges, that matter of Utlawry was a sufficient cause of dismission of any member out of the house. That the Judges have now before, touching their Proceeding in sir Francis Goodwin's Case, and his majesty's Answer; whereof, because part was afterwards penned by select Committees, read in the house, and offered in writing to the king, "I have but touched the Heads, omitting many circumstances." He said, he first delivered, 1. The Manner and Matter. 2. Then such Precedents as had been vouched and stood upon. 3. He opened the body of the Law for Election.The first Writ of Summons, dated ultimo Ja-grant, he expected they should not be turned nuarii before the Parliament: the Writ issued duly; the liberty was free, by that writ, to chuse in pleno comitatu: the Election was made according to that writ, and the Indenture duly returned; and therefore adjudged by the house, That this first election being good, the second was consequently void.'-For the matter of Utlawry against sir Francis Goodwin, there was one prosecuted against him at the suit of Johnson, 31 Eliz. for 60l. and was laid and proceeded in the Hustings, London. Another, at the suit of one Hacker, for. 161, 39 Eliz. That sir Francis had since been chosen, ad-resolved, That sir Francis Goodwin standeth mitted, and served as a member of this house, in the several parliaments holden 39 and 43 Eliz. That the Udawry remained in the Hustings, so as the law could not take notice of it; neither was it pleadable.-1 Eliz. One Smith was found utlawed, and privileged by the house.-23 Eliz. One Vaughan utlawed; and, upon the question and division of the house, privileged: being carried with the difference of six voices.-35 Eliz. Three precedents vouched.-39 Hen. 6.* Fitz-Herbert. The case not judged; but Opinions delivered. -Mr. John Killegrew having 52 utlawries returned against him, was admitted to serve in the house. Sir Wm. Harecourt was found 18 times utlawed, and yet was admitted to serve.-The manner of the Election is limited by the Statute. The supposed Utlawry, 31 Eliz. against sir Francis, was no utlawry at all; for wheresoever a man is sued, the proclamation ought to go into the county where the party dwelleth; or else the utlawry is not good.-39 & 43 Eliz. The general Pardon is good for Utlawries, against all, saving the party at whose suit. 31 Eliz. It was Franciscus Goodwin, Gen.39 Eliz. Franciscus Goodwin, Armig. The sheriti is no judge of the utlawry, neither could take notice it was the same man; and therefore could not properly return him utlawed." His Majesty answered, "He was loth he should be forced to alter his tune; and that he should now change it into matter of grief, by way of contestation. He did sample it to the murmur and contradiction of the people of Israel. He did not attribute the cause of his Here the accurate Editor of the printed Journals makes this remark, "The words (39 H. 6.) seem to be improperly inserted here, and are, in the Book of Notes, placed before the citation of Smyth's Case, i Eliz. and in the margin of the Journal itself against these words is written Quære," VOL. II. utlawed according to the laws of this land. In conclusion, it was his majesty's special charge unto us ;-That, 1. The course already taken should be truly reported. 2. That we should debate the Matter, and resolve among ourselves. 3. That we should admit of Conference with the Judges. 4. That we should make report of all the Proceedings unto the Council." This Relation being made, the House did not enter into any further consideration of the matter at that time; but Resolved and Ordered, "That it should be the first matter moved the next morning." Die Veneris, viz. 30 die Marti, 1604. Moved and urged by one, touching the Dif ference now on foot between the King and the House, "That there is just fear of some great abuse in the late Election. That in his conscience the King hath been much misinformed; and that he had too many misinformers, which, he prayed God, might be removed or lessened in their number. That now the Case of sir John Fortescue and sir Francis Goodwin was become the case of the whole Kingdom. That old Lawyers forget, and commonly interpret the law according to the time.-That by this course the free Election of the country is taken away, and none shall be chosen but such as shall please the King and Council. Let us therefore, with fortitude, understanding and sincerity, seek to maintain our Privilege; which cannot be taken or construed any contempt in us, but merely a maintenance of our common right, which our ancestors have left us, and is just and fit for us to transfer to our posterity." Another, for a law to be made, "That never any man outlawed, should show his face here again. The difference, he observed, was Some unrespective carriage towards his majesty in this matter; and therefore let our proceeding be dutiful and careful towards him, in advising of some speedy course to give his majesty H satisfaction; that is (as he conceived) accord- | to the king, and consider and resolve of the ing to the King's project, first, to advise material Questions that will fall out in the amongst ourselves, and then to confer with the debate of it. 1. Whether this Court hath Judges, not as Parliament-men, but as Coun- power to take notice of Returns made before sellors; not as though they were to reverse we sit here? 2. Whether men utlawed may be our errors, but that we might be better in- of the house? S. Whether a man pardoned, formed; not now the Case of sir John and sir having not sued forth a writ of Scire facias, may Francis, but a Case of great difference between be called in question? 4. Whether the Writ the king and us, wherein we are deeply to con- were returned the 17th of Feb. or no, upon sider the consequence if this pique be bruited oath of the sheriff?" in the country, abroad or beyond the seas. It is fit we let the king see how much we take to heart this matter, sithence our affections have" so much appeared in the passing and present expediting of the Act of Recognition, &c." Conclus. That we should tender our humble Petition to his majesty, for leave to make a Law for the banishing of all Outlaws hereafter from the Parliament, and pray, that we may hold all our Privileges entire. Some others were strong in opinion, That we ought not to confer nor to commit, saying, That majesty had conferred with Justice; yet majesty had left the stopping of the wound to us. We should taint ourselves with three great blemishes, if we should alter our Judg. ment, levity, cruelty and cowardice. There be three degrees of upright Judgment, motion, examination, judgment: all these have passed us. No Court can reform their own judgment. Every day a Term here. Every act that passeth this house is an Act of Parliament. Shall justice float up and down? Shall he be a member to-day, and shall we tear him off tomorrow? If the member be sound, it is violence: if the hand tear the rest, it is cruelty. No part torn, but it may bleed to the ruin of the whole. Let sir Francis Goodwin stand as he is: duty and courage may stand together; let not the house be inveigled by suggestions. This may be called a Quo Warranto to seize our Liberties. There hath been three main Objections. 1.-The King's Exception. We could shew A Third, "That we ought not to contest with the king; that it is fit to have a Conference: that by it we shall lose no Privilege, but rather gain; for the matters of the Conference will be two, satisfaction of the king, and putting in certainty our Privilege. All is not yet said that may be said; we are not to dispute with one that is governor of thirty legions. Confitendum est me frustra interrogasset. Let us deal plainly and freely with the Lords, and let them know all the reasons. They are jealous of the Honour of a Privy-Counsellor, we or the Freedom of Election. It is fit great inen maintain the Prerogative; so is it fit that we maintain our Privileges. This is a Court of Record, therefore ought we by all means seek to preserve the honour and dignity of it. If a burgess be chosen for two places, the burgess makes his choice for which he will serve, and a warrant shall be directed from Mr. Speaker, in the name of the house, to the Clerk of the Crown to send forth a Writ for a new Election for the⚫tion other place leit; which is a direct proof that it is a Court of Power and Record. We have a Clerk and a Register; all matters that pass here are entered of Record, and preserved. As they stand for the honour of a Counsellor, so we for our Privileges. It is to be wished, that we had a law to declare our Privileges, that we have a Court of Record and a Register." Obi. We (they say) are but half of the body, and the Lords are the parts nearest the head. no precedent in this kind.' Ans. The King could show no such Writ before. Our hands were never sought to be closed before, nor we prevented. It opens a gap to thrust us all into the Petty-Bag. A Chancellor may call a Parliament of what persons he will by this course. Any suggesby any person, may be cause of sending a new Writ. 2 Obj. by the Lord-Chief-Justice. By the Law we had nothing to do to examine Returns.' Answ. Judges cannot take notice of private Customs or Privileges: but we have a Privilege which stands with the law.'. The Judges informed the king of the law, but not of a case of privilege. It is true, 35 Hen. 6. all the Judges resolved, That no outlawed man cught to be admitted; but that was controlled by parliament. It is the same Opinion now; let us control it as then: we have done no oifence to the state; let us therefore be constant in our own Judgment. S Obj. Another, The king's pleasure, that we should deliver the Reasons of that we have done to be just? Ans. Nothing ascends to the Head but by the Breasts, &c.-Concl. That we may pray it may be explained by a law what our Privileges are; and that no man outlawed may hereafter be admitted.-There must be a Judge of the Return before we sit; and this is nos judged according to the positive laws of the realm by the king, which infringeth not our t If we clear our contempt, we have discharged liberty, since we julle after the court is sit, ourselves. The king's Bench cannot reverse according to discretion-No precedent, that their Judgment the same Term; therefore not ary man was put out of the house for ut..wry; the Parlament. Let us send a message to the therefore it had been sit we should have de-lords, that we are ready so to do, as we do not sired to inform the king that be was wisinformed. — Let us now leave this partizeler Case undo this house. Others. Nux coronalitur qui non legitime |