in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
it self The Commission of Adjournment we never read but say this House adjourns it self If the King write to an Abbot for a Corody for a Vallet if it be ex rogatu tho' the Abbot yields to it it binds not Therefore I desire that it be entred that this be done ex Rogatu Regis And this Matter touching his Majesties pleasure about the Recess Rush Coll. 537. was referred to a Committee and to consider the Power of the House to adjourn it self The Soveraign may adjourn the Parliament Sir Simon d'Ewes Jour 318. Col. 2. as well as the Parliament adjourns it self When a Parliament is call'd 4 Inst 28. Hutton 61. Vid. Sir S. d'Ewes Jour 407. Col. 1. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention 18 Rich. 2. 4 Inst 28. The Petitions of the Commons were answered and a Judgment given in the King's Bench reversed but no Act pass't yet without Question it was a Session else the Judgment should not be of force Many times Judgments given in Parliament have been executed Ibid. the Parliament continuing before any Bill Pass't If divers Statutes be continued till the next Parliament Hutton 61. or next Session and there is a Parliament or Session and nothing done therein as to Continuance all the said Statutes are discontinued and gone 8 Apr. 1604. Hakewel 180. In the last Session of the first Parliament of K. James the first the House being desirous to have a Bill forthwith pass't declared That the Royal Assent to one Bill or more did not dissolve the Session without some special Declaration of his Majesties Pleasure to that purpose 1 2 Phil. Mar. Ibid. The King and Queen came of purpose into the Parliament House to give their Assent to Cardinal Pool's Bill and Resolved upon the Question by the whole House That the Session was not thereby concluded but they might proceed in their Business notwithstanding the Royal Assent given But for more Security it is usual to insert a Proviso to that purpose If there be divers Sessions in one Parliament Are. Parl. 93. Crompton 's Jour 7. b. 12 b. and the King signs not a Bill till the last there all is but one and the same day and all shall have relation to the first day of the first Session and the first day and the last are but one Parliament and one and the same day unless special mention be made in the Act when it shall take its force CHAP. XXI The proper Laws and Customs of Parliament THE Laws Customs Liberties 4 Inst 50. and Priviledges of Parliament are better to be learn'd out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one mans Pen. As every Court of Justice hath Laws and Customs for its Direction 4 Inst 15. some by the Common Law some by the Civil and Canon Law some by peculiar Laws and Customs c. so the High Court of Parliament suis propriis Legibus Consuetudinibus subsistit It is Lex Consuetudo Parliamenti Ibid. that all weighty Matters in any Parliament moved concerning the Peers of the Realm or Commons in Parliament assembled ought to be determin'd adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Common Laws of this Realm used in more Inferior Courts which was so declared to be secundùm Legem Consuetudinem Parliamenti concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari Ratione is for the Commons for any thing moved or done in the House of Commons and the rather for that by another Law and Custom of Parliament the King cannot take notice of any thing said or done in the House of Commons but by the Report of the House of Commons and every Member of Parliament hath a Judicial Place and can be no Withess And this is the Reason that Judges ought not to give any Opinion of a Matter of Parliament because it is not to be decided by the Common Laws but secundùm Legem Consuetudinem Parliamenti and so the Judges in divers Parliaments have confessed And some hold That every Offence committed in any Court punishable by that Court must be punish'd proceeding criminally in the same Court or in some higher and not in any Inferior Court and the Court of Parliament hath no higher By the ancient Law and Custom of Parliament Id. 14. a Proclamation ought to be made against being arm'd against Games Plays and strange Shows c. during the Parliament that the Parliament may not be disturbed nor the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Towns Coll. 116 Vide Sir S. d'Ewes Jour 505. Col. 1. Resolv'd according to the ancient Custom of the House that all the Members of the same which did speak against passing of the Bill shou'd go forth of the House to bring the Bill into the House again together with the residue of the Members which went out before with the passing of the said Bill All the Members of the House being gone forth except Mr. Speaker and the Clerk Mr. Controller brought in the Bill in his hand accompany'd with all the Members of the House and deliver'd the said Bill to Mr. Speaker 17 Dec. 1597. Id. 117. Sir Simon d'Ewes Jour 574. Col. 2. The same Ceremony on the like Occasion omitted upon a Motion of the Speaker and order'd accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was deliver'd unto him which he took and deliver'd it to the House which they sent back again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll Id. 333. according to the usual Acts to which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queens Hand and Seal so it was sent back and then the other was sent Si les Commons grant Poundage pur quatre Ans Brook 119.4 Crompt 8. les Seigneurs grant nisi pur deux Ans le Bill ne serra re-bayl al Commons mes si les Commons grant nisi pur deux Ans les Seigneurs pur 4 Ans la ceo serra redeliver al Commmons Et in cest case les Seigneurs doient fair un Scedule de lour Entent ou d'endorcer le Bill en cest Form Les Seigneurs ceo assentont pur durer pur quatuor Ans Et quant les Commons ount le Bill arere ne volent assenter a ceo ceo ne poet estre un Act mes si les Commons volent assenter donques ils endorce lour Respons sur le Margent de bass deins le
and Courts of Justice are always Grand Committees of the House which are to sit in the Afternoon upon such days as the House doth appoint to them respectively The Committee for Trade hath sometimes been a select Committee Ibid. particularly named and all such Members as shou'd come to it to have Voices as in Nov. 1640. Sometimes a Grand Committee of the whole House as 21 Jac. 1. The Committee for Priviledges and Elections hath always had the Precedence of all other Committees Id. 10. being commonly the first Committee appointed and ordinarily the first day after or the same day the Speaker did take his Place This Committee is constituted of particular Numbers named by the House Ibid. 21 Jac. 1. Ibid. Upon naming a Committee for Priviledges and Elections a Motion was made that all that come shou'd have Voices but insisted on to be contrary to all former Precedents A Question was put Whether all that come should have Voices at the Committee and pass't in the Negative Another Question being put Whether the Persons nominated only shou'd be of the Committee it was resolved in the Affirmative ters questionable touching Priviledges and Returns and to acquaint the House with their Proceedings from Time to Time so as Order may be taken according to the Occasion and agreeable with ancient Customs and Precedents And to the end these Questions may be speedily determin'd Ibid. and the House may know their Members Days are usually assign'd beyond which there shall be no Questioning a former Election So in the Parliament 21 Jac. 1. it was order'd Ibid. That all Petitions about Elections and Returns shou'd be preserred to the Committee of Priviledges within a Fortnight from that day or else to be silenced for that Session 16 Apr. 1640. Id. 13. Order'd That those who would question Elections shou'd do it within ten days by Petition 6 Nov. 1640. Ibid. Order'd That all such as will question Elections now return'd shall do it in fourteen days and so within fourteen days after any new Return Some Questions have been where there have been double Indentures return'd for several Persons for the same Place whether all or any or which shall sit Id. 13. The general Rule and Practise hath been in such Case that neither one nor other shall sit in the House till it were either decided or order'd by the House 17 Apr. 19 Jac. 1. Order'd Id. 16. That no Petition shall be received by a Committee but openly at a Committee and read at the Committee before the Party go that preferred it and the Parties Name that preferred it be subscribed In the Parliament 21 Jac. 1. Id. 17. Resolved That all Affidavits to be taken in any Court concerning Elections Returns or any Thing depending thereupon shou'd be rejected and not hereafter to be used Tho' the Committee examine not upon Oath Ibid. yet they may punish any that shall testifie untruly of which there was an Instance in the Case of one Damport Sir Francis Popham Id. 14. being return'd a Burgess for Chippenham by one Indenture and another Person return'd for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determin'd But he was not so admitted and it was referred to the Committee for Priviledges 21 Jac 1. Id. 15. Two Indentures were return'd for Southwark the one returned Yarrow and Mingy the other Yarrow and Bromfeild Upon a Report from the Committee of Elections it was Resolved That the Election and Return for Yarrow shou'd stand good and that he shou'd sit in the House 22 Martij 21 Jac. 1. Ibid. Sir John Jackson and Sir Thomas Beaumont were both return'd for one Bargesses Place for Pontefract Order'd That the Committee take the Election into consideration to morrow and that in the mean time the Parties forbear to come into the House CHAP. XX. A Session of Parliament THE Passing of any Bill 4 Inst 27. or Bills by giving the Royal Assent thereto or the giving any Judgment in Parliament doth not make a Session but the Session doth continue till that Session be prorogued or dissolved And this is evident by many Presidents in Parliament ancient and late 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass't both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2. Ibid. Declared by Act of Parliament That the killing of John Imperial Ambassador of Genoa was High Treason yet the Parliament continued long after and divers Acts made c. 7 Hen. 4. Ibid. An Act made for certain Strangers departing the Realm c. yet the Parliament continued till Dec. 8 Hen. 4. 1 Hen. 7. Ibid. The Attainders of such as were returned Knights Citizens and Burgesses were reversed by Act of Parliament before they could sit in the House of Commons and the Parliament continued and divers Acts made 33 Hen. 8. Ibid. At the beginning of the Parliament the Bill of Attainder against Queen Catherine Howard pass't both Houses yet the Parliament continued and divers Acts pass't Tho' Bills pass both Houses Ibid. and the Royal Assent be given thereto there is no Session until a Prorogation or a Dissolution The Diversity between a Prorogation and an Adjournment Ibid. or Continuance of the Parliament is that by the Prorogation in open Court there is a Session and then such Bills as pass't either or both Houses and had no Royal Assent to them must at the next Assembly begin again Every several Session of Parliament is in Law a several Parliament Ibid. Hutton 61. Brook tit Parl. 86. but if it be but adjourned or continued then there is no Session and consequently all things continue in the same state they were in before the Adjournment or Continuance The Titles of divers Acts of Parliament be 4 Inst 27. At the Session holden by Prorogation or by Adjournment and Prorogation but never by Continuance or Adjournment tantùm And the usual Form of Pleading is ad Sessionem tentam c. per Prorogationem The Adjournment or Continuance is much more beneficial for the Commonwealth for expediting of Causes 4 Inst 28. than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holy-days This Message for Non-recess was not well-pleasing to the House Sir Robert Philips first resented it and took Notice Rush Coll. 537. that in 12 and 18 Jac. 1. upon the like Intimation the House Resolved It was in their power to adjourn or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of out Right herein and to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns
Law the Act of the whole Parliament and what concerns the one must of necessity concern the whole not meerly by Consequence but by an immediate Concernment as being one and entire The three Estates of Parliament are one entire Body Id. 34 41 51 55. and Corporation all their Powers and Priviledges in the Right of them and in the Title to them are entire per my per tout and belonging to the whole Body of the Parliament tho' in the Exercise of those Powers and sometime in the Claim of them they are distinguish'd and in the Practise of their Powers they are in many Things distributed into Parts All the Estates in Parliament are all call'd by one common Name Ibid. as Commune Concilium Regni Magna Curia they are one Body Politic It is said by Fineux Chief Justice That the Parliament at the Common-Law consists of the King Lords and Commons and they are but one Body Corporate The Liberties and Franchises of the Parliament Id. 55. in the Right of them are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the ancient ends of calling Parliaments Knyghton de Eventibus Angliae l. 5. f. 2681. Col. 1 2. Petyt's Rights c. in Pref. p. 43 44. in saying Quod ex Antiquo Statuto Consuetudine laudabili approbata c. That by an ancient Statute and Custome laudable and approved which no man could deny the King was once in the year to convene his Lords and Commons to his Court of Parliament as to the highest Court in the whole Realm In qua omnis Aequitas relucere deberet absque qualibet Scrupulositate vel nota tanquam Sol in Ascensu Meridiei ubi Pauperes Divites pro Refrigerio Tranquilitatis Pacis Repulsione Injuriarum Refugium Infallibile quaerere possent ac etiam Errata Regni reformare de Statu Gubernatione Regis Regni cum Sapientiori Concilio tractare ut Inimici Regis Regni Intrinseci Hostes Extrinseci destruantur repellantur qualiter quoque Onera incumbentia Regi Regno levius ad Ediam Communitatis Supportari potuerunt i. e. In which Court all Equity ought to shine forth without the least Cloud or Shadow like the Sun in its Meridian Glory where Poor and Rich refreshed with Peace and Ease of their Oppressions may always find infallible and sure Refuge and Succour the Grievances of the Kingdom redressed and the state of the King and Government of the Realm debated with wiser Councels the Domestick and Foreign Enemies of the King and Kingdom destroy'd and repelled and to consider how the Charges and Burthens of both may be sustained with more Ease to the People The House of Lords cannot exercise any Power Sir R. Atkin's Argument f. 51. as an House of Parliament or as a Court for Errors without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Parliaments ought to be very frequent Id. 59. Before the Conquest as it is untruly call'd by the Law Parliaments were to be held twice a year as appears by King Edgar's Laws So it was ordained by King Alfred By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a year and oftner if need be And in 36 Ed. 3. c. 10. to be once a year without Restriction if need be By 16 Car. 2. c. 1. these Acts are declared to be in Force and further it is declared and enacted That the holding of Parliaments shall not be discontinued above three years at the most The Parliament is a Court of very great Honour and Justice Plow Com. 398. of which no man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very high Offence Sir R. Atkyns Arg. 60. but the higher it is the more proper it is for their Judicature and that Court is arm'd with a Power to punish the highest Offences and the highest Offenders A Parliament may err Ibid. for they are not infallible but the Law hath provided a Remedy against those Errors and a way to reform them A subsequent Parliament may reform the Errors of a preceding Parliament But to say that they will be Partial Ibid. or Unjust or Corrupt or do any Thing out of Malice is to raise a Scandal upon the whole Nation whose Representative they are If any Offence whatever be committed in the Parliament by any particular Members Ibid. it is an high Infringment of the Right and Priviledge of Parliament for any Person or Court to take the least Notice of it till the House it self either has punish'd the Offender or referred them to a due or proper Course of Punishment To do otherwise would be to make the Highest Court an Offender and to charge them with Injustice Their Right and Priviledge so far extends Id 61. that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament is no where else to be punish'd but by Themselves or a succeeding Parliament tho' done out of the House Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other Sir Simon d'Ewes Journal 186. as that when a Bill hath pass't either of the said Houses and is sent to the other it doth for the most part pass and is neither dash'd nor alter'd without very great Cause upon mature deliberation and usually also not without Conference desir'd and had thereupon that so full Satisfaction may be given to that House from which the Bill so rejected or alter'd was sent Pessima Gens humani Generis always abhorr'd a Parliament Preface to Petyt's Miscel Parlementar and the reason thereof is demonstrative because they all knew they shou'd then be call'd to an impartial and strict Account and be punish'd according to their Demerits It was said by the Lord Bacon to Sir Lionel Cranfeild Ibid. newly made Lord Treasurer That he would recommend to his Lordship and in him to all other great Officers of the Crown one considerable Rule to be carefully observ'd which was Remember a Parliament will come The King at no Time stands so highly in his Estate Royal Petyt's Miscel Parliament 9. Vid. Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together into one Body Politic so as whatsoever Injury during that Time is offer'd to the meanest Members of the House is to be judged as done against the King's Person and the whole Court of Parliament The Prerogative of Parliament is so great Ibid. That all Acts and Processes coming out of any inferior Courts must cease and give place to the highest Statutes in England are made