Vide ante Brig-bote Here-fax Here-geld c. Tho' we may well conclude those Customs and Duties to have been originally granted by Assent of the Commons in a Parliamentary Assembly as 'tis certain Peterpence Danegeld Spelman ib. Horngeld c. were As to Peterpence Idem in Verbo Romascot See Fedus Edvardi and Guthurui c. 6. LL. Edgari c. 4. LL. Caunti c. 15. LL. Hen. 1. c. 12 c. In verbo Subsidium otherwise called Romescot and Romefee whether the same was first granted by King Ina as is generally said or by King Offa as others affirm 'tis plain a Parliamentary Consent was had thereto as the Laws touching the Regulation of the same doe manifestly prove And as to Danegeld c. Sir Henry Spelman says The Danes having oppressed the Land King Egelred i. e. Ethelred in the Year 1007 yeilded i. e. by consent of Parliament to pay them for obtaining Peace 10,000 l. which was after encreased to 36,000 l. then to 113000 l. and lastly to a yearly Tribute of 48,000 l. and for the raising of this Tax Note this Tax appears to have been promoted by some Church-men who tis probable shared the plunder Splem ut Supra every Hyde or Plough Land was charg'd with 12 d. Yearly Church Lands excepted and thereupon twas called Hydage which Name was afterwards apply'd to all Taxes and Subsidies imposed on Lands but if the Tax was laid on Cattle 'twas call'd Horn-geld The Normans says the same Author called these sometimes from the Latin and Greek Word Taxes and sometimes from their own Language Tallagia signifying to cut or divide from as the Word Excise doth at present and sometimes they denominated 'em according to the usual Words beyond Sea Auxilia and Subsidia Ayds and Subsidies and accordingly W. 1. had those Taxes or Tallages and made Laws for the manner of Levying them Vide LL. W. 1. p. 125. Rights of the Kingdom 115. But this also seems to be by pretence or colour of I cannot call it a free Parliament But to return to the Saxons and their manner of granting Aids and Taxes Hist Aethelwerdi Li. 3. we may observe that King Egbert who is generally said to have been the first Monarch of England seems to have attained his Conquests and Extent of Dominion chiefly by the extraordinary Aids and Supplies granted by his Commons See Ingulph p. 6.12.17 and that by the same Means he was enabled so vigorously to Repel the Danes c. To this purpose we meet with a Passage in the History of Croyland viz. That this King confirmed a grant of Lands to that Abby coram Pontificibus Majoribus totius Angliae i. e. as I apprehend before the Prelates Peers and greater Commons of all England who as the History saith were then met together at London consulting how to provide Aids and Supplies contra Danicos Piratas c. The whole Passage proves this Transaction to have been in a general Council or Parliament met purposely for the raising of new Aids and the Word Majores seems plainly to intend the Representatives of the Commons and to be of a lower Degree than the proceres or Temporal Peers Vide Bed Hist And that the Commons attended at that Consult may not only appear from divers of the Names Subscribed to that Charter But 'tis also evident from Bede and other antient Authors that the Word Majores was then used to signify such Officers and Magistrates as we now Term Sheriffs of Counties and Mayors or Bailiffs of Towns and Cities And tho' the Word Danegelt Ingulph is not quite so antient as the Time of K. Egbert yet that the first grant thereof was with consent of the Commons appears from the Laws of Edward the Confessor Hoveden who first remitted it it having been diverted from its Original and true Institution the very Cause ceasing under the Kings of the Danish Race who notwithstanding continued the Tax and which tho' remitted by the Confessor was afterwards revived by the Conqueror See Laws of W. 1. as a proper Expedient for augmenting regal Power and yet this Revival seems also to be by consent of or under colour of a Parliament But further In the abovementioned History of Croyland Hist Ingulphi ad Annum 855. there is a remarkable Charter made by Ethelwulph the West Saxon King who was Son and Successor to K. Egbert and the Father of his four Successors i. e. Ethelbald Ethelbert Ethelfred and Alfred Rights of the Kingdom p. 84 85. The Charter itself imports a grant of Lands Tythes c. to that Abby and in the Body of it is said to be made cum Consilio Episcoporum Principum c. and is Subscribed by and in the presence of the Kings of Mercia and East Anglia Omniumque Archieporum Episcoporum Abbatum Ducum Comitum Procerumque totius Terre aliorumque Fidelium infinita Multitudine Qui omnes Regio Chirographo Laudaverant A pregnant Instance of a Saxon Parliament compos'd of Kings Lords and Commons and of the concurrent Assent of the three Estates in the passing of the Grant I cannot here forbear observing an Expression in that Introduction to the Laws of K. Alphred which might seem strange in a King at this Day where speaking of his Establishing those Laws See Wilkins p. 34 and Lambard 26. Ex consulto Sapientum Suorum By consent of his Parliament he goes on thus Fortham ic ne durst gedyrst-laecan c. for that he durst not attempt to do it otherwise and it concludes thus Ergo Ego Alphredus omnibus Sapientibus meis hic usus sum et illi dicebant quod ipsis omnibus bene placuerint ea quae Statuta Suut ut observarentur And Andrew Horn a Learned Lawyer Mirror of Justices who wrote Temp. Ed. 2. in many places of his Book Speaks of K. Alphred's Parliaments and that his Laws were made by Assent of his Great Wise Men and Commons He Expresly mentions and applauds that Law of his that Parliaments ought to be held twice Yearly and Declares the Non-observance of that grand Law of State to be one of the highest abuses of Law and Government I might here also take notice of other Parliaments of the same King Wilkins LL. Saxon p. 51. particularly that Treaty entered into between him and Guthrun the Dane which was made Ex Sapientum anglorum Consilio and I might further shew that all the Acts of State both of him and his Saxon and Danish Successors were made and transacted with the consent of the Commons as well as Consilio Magnatum But the Point is so fully proved in our antient Historians as well as in the stile used by those Princes in their Enacting of Laws that I conceive my further Endeavours to illustrate it would prove but holding a Candle to the Sun And as for the Norman Times tho' the two Williams Father and Son endeavour'd what they could to suppress the Rights of the Commons yet we find on the Death of the latter the
received no little Advantage from a Manuscript of that judicious and learned Judge the late Mr. Justice Price who having been many Years a Member of the House of Commons had made divers curious historical Collections with several Notes and References relating to the Subject Matter hereof And in this Edition the Reader may find collected from authentick Records and Histories all that is necessary to be known touching the Rights and Privileges of Parliaments and in a great Measure the legal Prerogatives of the Prince and just Liberties of the People The CONTENTS CHAP. I. Of Parliaments in general Shewing their Antiquity Names Natures Kinds and Qualities British Saxon c. Ordinarily annual and without Summons Extraordinary on Summons pro arduis c. Of the three Estates Bishops no essential Part excluded elected created by Patent Commons ever represented and how Their Right to a Free Election of all Magistrates c. and Consent to all Aids and Taxes This Right invaded by the Norman Kings William I. and II. Reslored by Henry I. Of English Parliaments in his Time who the Magnates and Barones Regni then were Of Coronation Oaths c. Page 1. CHAP. II. Of the Dignity and Excellency of Parliaments The Supream Power of the Kingdom and when Free Protectors of the People's Rights and Preservers of the legal Government and Constitution Of the three Estates and to what End assembled Lords and Commons anciently sate together The highest Court of Justice c. Page 49. CHAP. III. Of the Power and Authority of Parliaments superior to the Law may judge the Greatest remove evil Ministers redress Grievances of all Kinds Their three Powers viz. Consultive Legislative and Judicial their absolute Power over all Persons c. Page 66. CHAP. IV. and V. Of the Power Authority and Jurisdiction of the House of Peers distinct from the Commons Page 90 101. CHAP. VI. and VII Of the seperate Powers and Authorities of the House of Commons both in general and in particular Cases Page 109 114. CHAP. VIII Shews their Power over their own Members and how executed c. Page 136. CHAP. IX Treats of the Election of Members of the House of Commons in general and of the several Statutes relating thereto Page 149. CHAP. X. Shews who may be Electors and theâ—r Rights Duties and Manner of Election with the Statutes and Oaths referring thereto Page 156. CHAP. XI Who may be elected their Qualifications and Duties c. with such Statutes Oaths c. as concern the same Page 180. CHAP. XII Of the Returns to Parliament and of Amendments of Returns the Sheriffs and other Officers Duty therein with such Statutes and Oaths as relate thereto Page 226 CHAP. XIII and XIV Of the Manner of Election of the Speaker of the House of Commons and of the Business and Duty of the said Speaker Page 263 272. CHAP. XV. and XVI Of Orders to be observed in and by the House of Commons or the Members thereof Page 278 285. CHAP. XVII Of the Manner of passing Bills c. in the said House Page 306. CHAP. XVIII XIX and XX. Concerning Committees in general as also of the Orders Powers and Proceedings of Grand Committees and of Standing Committees c. Page 327 336 341 CHAP. XXI Of Sessions of Parliament what makes a Session as also of Prorogations and Adjournments Page 347 Note CHAP. XXII Of the proper Laws and Customs of Parliament and of Acts and Ordinances Page 358. CHAP. XXIII Of the Privilege of Parliament with the Statutes for regulating it c. Page 379. The APPENDIX being the Case of Sir Francis Goodwyn admitted a Member though returned outlawed c. Concluding with divers additional Pariculars relating to the Privileges and Duties of Parliaments Page 415. Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENT of England c. CHAP. I. Of Parliaments in General their Definition constituent Parts c. with a brief Inquiry into the Original and Nature of our British Saxon and Norman Parliaments THE Word Parliament Minshew in verbo Parlamt in French Parlement and in Spanish and Italian Parliamento is Spelm. Gloss verbo Debate See Coke on Littl. p. 110.164 in its principal Part deriv'd from the French Parler to speak and as Lord Coke and some Others conceive The General Council or National Assembly of this Kingdom is so call'd Spelm. Gloss in verbo Parlament Hales of Parliaments 122. Elsing of Parliaments 167. 4 Inst 8. Bohun's Collection 353. because every Member thereof should in the Matters there debated Parler la Mente i. e. Freely speak his Mind And tho some Authors have oppugned this Derivation yet tis evident from the very Nature and Essence of a Parliament That every Member thereof ought to speak his Mind freely in what relates to the Publick Welfare And this Freedom of Speech is now constantly claimed by the Speaker of the House of Commons at the first Meeting of every New Parliament and in insisted on as a Claim of Right The Word Parlament is in France now taken for one of those High Courts of Justice in that Kingdom Minshew ut supra See Vincent Lupanus lib. 2 c. Parliament No. 28. wherein Men's Causes and Differences are publickly heard and determined without further appeal Of these Parliaments there are Seven viz. 1. Paris now superiour to the Rest 2. Vide Du Haillan Pasquier c. of the Fr. Parlements Tholouse 3. Grenoble 4. Aix 5. Bourdeaux 6. Dijon 7. Roan whereto some add an 8th viz. Rhenes in Bretaigne But with us in England or rather Great Britain The universal Assembly of all the Estates of the Kingdom i. e. The King Sir Tho. Smith De Repub. Angl. lib. 2. c. 1.2 Lords and Commons wherein every Freeman of the Kingdom is said to be present either in Person or by Representation and who are met together for debating of Matters touching the Commonwealth especially for the enacting of Laws and Statutes is properly called a Parliament Cro. Jur. f. 1. c. Cambd. Brit. 6. c. 4 Inst 1. and such Laws and Statutes when agreed on are significantly term'd Acts of Parliament Indeed various Authors Of the three Estates viz. 1. King Cotton's Records 709.710 4 Inst 1. Hales of Parliaments 1. Finch's Nemotecnia lib. 2. c. 1.2 The Lords Sadler's Rights of the Kingdom p. 79. to 93. Kelway's Reports 184. Stamf. P. Cor. 153. See Bagshaw's Reading p. 17. to 21. have had various Sentiments and even Acts of Parliament differ about the three Estates some alledging the King to be the Head of but not included in the Number assert That the three Estates are 1st The Lords Spiritual 2dly The Lords Temporal And 3dly The Commons but Others more rationally say The King is one of the three Estates which compose the Parliament and that the second Estate is constituted of both the Spiritual and Temporal Lords jointly for say they Tho the Archbishops and Bishops are denominated Spiritual yet they sit in Parliament as Temporal
Being of this Kingdom can have no other Bottom to stand upon but the Parliament it being the Foundation upon which the whole Frame of the Commonwealth is built The Parliament is the Cabinet Ib. 201. wherein the chiefest Jewels both of the Crown and Kingdom are deposited The great Prerogative of the King and the Liberty of the People are most effectually exercised and maintained by Parliaments c. Parliaments are the Ground and Pillar of the Subject's Liberty Ib. 587. and that which only maketh England a free Monarchy Parliaments are says the Earl of Warwick Ib. 752. Admiral of the Sea to John Pym Esq July 6 1742 That Great Council by whose Authority the King's of England have ever spoken to their People Both Houses of Parliament are the Eyes in the Body Politick Ib. 702. whereby His Majesty is ought by the Constitution of this Kingdom to discern the Differences of those Things which concern the Publick Peace and Safety thereof The Parliament is the Mouth of the King and Kingdom Vox Dei c. Parliaments says K. C. 1. in his Declaration to all his Loving Subjects Rushw Coll. 3d Part Vol. 2 p 40. after his Victory at Edgehill on the 23d of October 1642 are the only Sovereign Remedies for the growing Mischiefs which Time and Accidents have and will always beget in this Kingdom That without Parliaments the Happiness cannot be lasting to King or People The Parliament is to be considered in three several Respects first Ib. p. 45. As it is a Council to advise 2dly As it is a Court to judge 3dly As it is the Body Representative of the whole Kingdom to make repeal or alter Laws L'Assemblie de Troys Estates Cestascavoir Finch's Nemotecnia lib. 2. c. 1. fo 21. 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 On the Restoration of King Charles the 2d the Commons resolved May 1. 1660. Journal Dom. Co. That this House doth agree with the Lords and do own and declare that according to the antient and fundamental Laws of this Kingdom the Government thereof is and ought to be By King Lords and Commons 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 add 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 is the highest Court in England Crompton's Juris p. 1. in which the Prince himself sits in Person and usually comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth 4 Inst 3. during the Parliament The King is the Caput Principium and Finis of Parliaments It appears by Precedents That whenever a Parliament was sitting in the King's Absence Rushw Coll. Vol. 3. Part 1. p. 772. there was always a Custos Regni or a Locum Tenens Regis appointed 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 Vide Dyfol 60. 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 Descent 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 and these three Estates Ib. 2. are the great Corporation or Body Politic of the Kingdom and do sit in two Houses 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 Coll. 5.6 Vid. Cromp ton 1. Barons of the Exchequer of the Coif the King's Learned Council 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 Englishman is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74 or by Procuration and Attorney of what Preeminence 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 In antient Time the Lords and Commons of Parliament did sit together 2 Bulstro 173. See Cotton's Records 12.13.348 Post 60. in one and the same Room but afterwards they were divided to sit in several Rooms and this was at the Request of the Commons but yet still they remain but one Court And of all this I have seen the Records one in the Time of H. 1. where all of them did sit together and mention is there made of the Degrees of their Seats so in the Time of E. 3.39 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 publick 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'd 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 Ib. 6. the Parliament cannot begin 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 authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Ib. 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 Ib. 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 Ib. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vide 1 Inst Sect. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges Ib 50. to judge of any Law Custom or Priviledge of Parliament The Judges 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 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 It is the just and constant Course of Parliament Seld. Judic 95. to bring the Party accused to his Answer Yea 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 Sir R. Atkyns Argument c. 14. according to the Law and Usage of Parliament is properly and in the Judgment of the 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 and Corporation Ib. 34 41 51 55. Vide Rast St. 2. 3. E. 6. c. 36. Pref. 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 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 in the Right of them Ib. 55. are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the antient Ends of calling Parliaments Knyghton de Eventibus Augliae l. 5. f. 2681. col 1.2 Pettyt's Rights c. in Pref. p. 43. 44. Hollings f. 1055. col 1. in saying Quod ex Antiquo Statuto Consuetudine landabili approbata c. That by an antient Statute and Custom 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 qualiterquoque 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 Minshieu But these six Degrees were never allowed to be six Estates of Parliament in his Etymological Dictionary tit Parliament says In a Monument of Antiquity meaning the antient Modus Tenendi Parliament shewing the Manner of holding the Parliament in the Time of K. Edward the Son of K. Etheldred which as the Note saith was delivered by the discreeter Sort of the Realm to William the Conqueror and allowed by him tis said That the Parliament consisted of six Ranks or Degrees it begins thus Rex est Caput Principium et Finis Parliamenti ita non habet Parem in suo Gradu Et sic a Rege solo primus Gradus est Secundus Gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per Baroniam Tertius Gradus est de Procuratoribus Cleri Quartus Gradus est de Comitibus Baronibus et aliis Magnatibus Quintus Gradus est de Militibus Comitatuum Sextus Gradus est de Civibus et Burgensibus Et ita est Parliamentum ex sex Gradibus En Antient temps tout le Parliament sea Insimul Rolls 1. Report fol. 18. ante 54. et le Separation fuit perle desire del Commons Mes nient obstant ils font forsque un Mese jen aie view un Record 30 H. 1. de lour degrees et seats 39 E. 3. per Choke ch Inst It is generally believed Reform'd vol. 2. p. 49. That the whole Parliament sate together in one House before E. 3. Time and then the inferior Clergy were a Part of that Body without Question But when the Lords and Commons were divided the Clergy likewise sate in two Houses and granted Subsidies as well as the Temporalities My Lord Chief Justice Coke says 1 Inst Sect. 164. fol. 109. The Parliament is the highest and most honourable and absolute Court of Justice of England consisting of the King the Lords of Parliament and the Commons And again the Lords are here divided into two Sorts viz. Spiritual and Temporal And the Commons are divided into three Parts viz. Into Knights of Shires or Counties Citizens out of Cities and Burgesses out of Boroughs In the High Court of Parliament all the whole Body
of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deemed to be personally present 1 Jac. 1. c. 1. Sir Edward Cook in his Epistle to the 9th Report says There is a threefold End of this great and honourable Assembly of Estates First That the Subject might be kept from offending that is That Offences might be prevented both by good and provident Laws and by the due Execution thereof Secondly That Men might live safely in Quiet And thirdly That all Men might receive Justice by certain Laws and Holy Judgments that is to the End that Justice might be the better administred that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty and that Claims of Right might be adjudged and determined This Court being the most supream Court of this Realm is a Part of the Frame of the Common Laws and in some Cases doth proceed legally according to the ordinary Course of the Common Law The House of Lords cannot exercise any Power as an House of Parliament Sir R. Atkin's Argument f 51. or as a Court for Error without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Ib. 59. Parliaments ought to be very frequent 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. 11 Col. 14 The Parliament can do no Wrong 6 Col. 27. Sir R. Atkyne Arg. 60. of which no Man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very very high Offence 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 Yet a Parliament may err Plow Com. 397. 9 Col. 106. 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 preceeding 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 Ibid whose Representative they are If any Offence whatever be committed in the Parliament by any particular Member See Husband's Collections ante p. 1. p. 67. it is an high Infringment of the Right and Privilege 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 Ib. 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'd 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 6. Vide Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together in one Body Politic So as whatsoever Injury during that Time is offer'd to the meanest Member 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 that the highest Statutes in England are made not only by the Princes Pleasure Fortescue 42. but also by Assent of the whole Realm So that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one Man alone or of a hundred wise Counsellors only but of more than three hundred learned Men now 558 that ought to be freely Elected by the People Acts of Parliament are made with such Gravity Wisdom 11. Co. 63. Fortesc c. 18. c. 40. and Universal consent of all the Realm and for advantage of the publick Wealth that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated Acts of Parliament have been tender of racking the King's Subjects for Words 1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word Every Proviso in an Act 1. Siderf 155. is not a determination what the Law was before for they are often added for the Satisfaction of those that are ignorant of the Law The King of England can neither by himself or his Ministers Fortescu p. 84. impose any Tallages or other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament CHAP. III. Of the Power and Authority of Parliaments THE Parliamentary Power Hollinsh Vol. 1. p. 173. as it is in the Legislative Capacity consisting of the Agreement and Act of all the three Estates King Lords and Commons to make it Binding it imports no
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
this Realm and with every one of them as the Quality of the Persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seem to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetustissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914 Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714 that the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of Mens Minds and removeth the Occasion of Doubts Parliamentum omnia Potest says the 4 Inst 74.76 The Parliament is of an absolute and unlimited Power in things Temporal Sir Rob. Atkyns's Argument c. 50. Ibid. within this Nation The Parliament hath the highest and most sacred Authority of any Court it hath an absolute Power It is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A Man gives Land to one and to his Heirs Males Crompton 20. b. Dr. and Student in that Case his Heirs Females shall also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petit's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says 6.1 p. 4. and 5. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those Persons against whom the Subjects otherwise could not have common Justice for wrongs so by them done Covient per droit que le Roy ust Companions pur oyer et terminer aux Parliaments trestouts les breues et plaints de Torts de le Roy de la Roigne Horn's Mirror p. 9. et de lour Enfants et de Eux specialment de que Torts len ne poit aver autrement Common droit i. e. The King ought by Law to have Companions or associates to hear and determine in Parliament of all Writs and Plaints of all Torts or Wrongs as well of the King as of the Queen and their Children and especially of those Great Ones where one cannot otherwise have Common right for those wrongs The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of England to the Pope Id. 37. by the Hand of Pandulphus his Legat Mat. Paris and sordidly submitted to take the Crown at his Hand again Rot. Parl. 40. E. 3. No 7. 8. at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded this Rent and all the Arrears But the Prelates Dukes Counts Barons and Commons resolved that neither the King nor any other could put the Realm nor the People thereof into Subjection sans l'assent de eux without their Assent This intimates Sir R. Atkyn's Arg. p. 50. that with their joynt Consent the Crown may be disposed of And it was the highest Resolution in Law in one of the highest Points in Law concerning the King's claim of an Absolute Power and in a Time when the Pope was in his Meridian Height It is the proper Work of this Supreme Court to deal with such Delinquents Ibid. as are too high for the Court of King's Bench or other ordinary Courts Daughters and Heirs apparent of a Man or Woman 4 Inst 36. may by Act of Parliament inherit during the Life of the Ancestor Ante 69. It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason after his Death Ibid. It may Naturalize a meer Alien Ibid. and make him a Subject born It may bastard a Child Ibid. that by Law is Legitimate viz. begotten by an Adulterer the Husband being within the four Seas It may Legitimate one that is Illegitimate Ibid. and born before Marriage absolutely It may Legitimate secundum quid etiamque simpliciter 21 Rich. 2. The Lords Appellants accused the Duke of Gloucester of Treason Selden's Judicature 91. and tho' they knew he was dead they pray'd the King that he might be brought to his Answer The King sent his Writ c. they desired Judgment and had it So Robert Possington was impeached at the Parliament at Westminster Id. 95. and found Guilty long Time after he was dead and so forfeited his Estate John of Gaunt Duke of Lancaster had by Catherine Swinford 4 Inst 36. Cotten's Record p. 363. before Marriage four illegitimate Children Henry John Thomas and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament in Form of a Charter doth Legitimate the three Sons and Joan the Daughter Thomas Cromwel Vide post 4 Inst 36. Earl of Essex was attainted by Parliament and forth-coming to be heard and yet never call'd to answer in any of the Houses of Parliament and resolved by the Judges that if one be Attainted by Parliament it can never come in question after whether he were call'd or not call'd to answer for the Act of Attainder being pass'd by Parliament did bind Where by Order of Law a Man cannot be Attainted of High-Treason Id. 39. unless the Offence be in Law High-Treason he ought not to be Attainted by general Words of High-Treason by Authority of Parliament as sometimes hath been used but the High-Treason ought to be especially exprest seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought to give example to inferior Courts Acts against the Power of the Parliament subsequent bind not Id. 42. It is against the Power and Jurisdiction of the Parliament the Liberty of the Subject and unreasonable i. e. Illegal The Stat. 11. Rich. 2. c. 5. Id. 42. That no Person should attempt to revoke any Ordinance then made was repealed for that such Restraint is unreasonable c. An Act 11 Rich. 2 c. 3. Ibid. That no Man against whom any Judgment or Forfeiture was given shou'd sue for Pardon or Grace c. was holden to be unreasonable without Example and against the Law and
Custom of Parliament and therefore void The Authority of the High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent what transcendent Power and Authority the Parliament hath Id. 43 and tho' divers Parliaments have attempted to bar restrain suspend qualify or make void the Power of subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualify explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quod Leges posteriores priores contrarias abrogant An Act of Parliament doth include every Man's Consent Hobart 256. as well to come and unborn Persons as those present The Sovereign Power of this High Court of Parliament is such Hakewel 86. that altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without the consent of Parliament as was resolv'd by all the Judges in the Princes case The King by his Letters Patents may make a Denizen Id. 87. Bro. Denizen N o 9. 36. H. 8. but cannot Naturalize him to all purposes as an Act of Parliament may do If a Man be Attainted of Felony Hakewel 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And yet the King may give to any attainted Person his Life by this Charter of Parliament The King cannot alter the Common Law Id. 90. or the general Customs of the Realm as Gavelkind Borough-English or the like without consent of Parliament Altho' a King have a Kingdom by Discent Ibid. yet seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamtion that he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Le Parliament d'Engleterre ne lia Ireland quoad Terras suas Brook 123. 91. Vide 20 H. 6.9 Crompton 22. b. quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland Quere infra as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea 4 Inst 350. Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id. 23. and the Commons in their House have Power of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons which is sometimes also styled a Record If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament Id. 14. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty Years Hob. 256. c. and we may add Persons unborn It is declared by the Lords and Commons in full Parliament upon Demand made of them on the Behalf of the King That they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws doth ordinarily belong to the Reverend Judges Hakewel 94. and in Case of greatest Difficulty or Importence to the High Court of Parliament Errors by the Law in the Common-Pleas are to be corrected in the King's-Bench 4 Inst 22. Vid. Stat. 1 Jac. 1 c. 1. and of the King's-Bench in the Parliament and not otherwise i. e. where the Proceedings are by original Writ Instit Leg. 171.172 For if they are by Bill they may be corrected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament Actions at Common Law are not determined in this High Court of Parliament Selden's Judicature 2. yet Complaints have ever been receiv'd in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id. 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament And so there have been of Commoners As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid 17 E. 3.22 And the Bishop of Norwich 7 Ric. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traitor and banished him But if a Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament yet in all other Matters save that only of their Trial they have Priviledge as no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded
that such Person be thereupon Convicted such Person so discovering and not having been before that time Convicted of any Offence against this Act shall be indemnified and discharged from all Penalties which he shall then have incurred by any Offence against this Act. Enacted that forty five shall be the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain Stat. 5. Annae c. 8. the Union Act. Of the said Forty-five Representatives of Scotland Members for Scotland Thirty shall be chosen by the Shires and Fifteen by the Royal Burghs as follows viz. one for every Shire and Stenartry excepting the Shires of Bute and Caitness which shall choose one by turns Bute having the first Election the Shires of Nairn and Cromarty which shall also choose by turns Nairn having the first Election and in like mannet the Shires of Clackmannan and Kinross shall choose by turns Clackmannan having the first Election and in case of the Death or legal Incapacity of the said Members from the said respective Shires or Steuartries Scotland the Shire or Steuartry who elected the said Member shall elect another Member in his Place And that the said Fifteen Representatives for the Royal Burghs shall be chosen as follows viz. That the Town of Edinburgh shall have Right to elect and send one Member and that each of the other Burghs shall elect a Commissioner in the same manner as usual to elect Commissioners and Burghs Edinburgh excepted being divided into fourteen Classes or Districts shall meet at such time and Burghs within their respective Districts as her Majesty her Heirs or Successors shall appoint and elect one for each District viz. the Burgs of Kirkwall Week Dornock Dingwall and Tain one The Burghs of Fortrose Inverness Nairn and Forress one The Burghs of Elgin Cullen Bamff Inverary and Kintore one The Burghs of Aberdeen Inverbery Montrose Aberbrothock and Brochine one The Burghs of Forfar Perth Dundee Coupar and St. Andrews one The Burghs of Craill Kilrenny Anstruther Easter Anstruther Wester and Pittenween one The Burghs of Dysart Kirkaldie Kinghorn and Bruntsland one The Burghs of Innerkethen Scotland Dunfermline Queens-ferry Culross and Sterling one The Burghs of Glasgow Renfrew Ruglen and Dumbarton one The Burghs of Haddington Dunbar North-Berwick Lauder and Jedburgh one The Burghs of Selkirk Peebles Linlithgow and Lanerk one The Burghs of Dumfreis Sanquhar Anna Lockmaben and Kirkeudbright one The Burghs of Wigtown New Galloway Stranraver and Whitehorn one The Burghs of Air Irvin Rothesay Cambletown and Inverary one And where the Votes of the Commissioners for the said Burghs met to choose Representatives from their several Districts shall be equal the President of the Meeting shall have a casting or decisive Vote and that by and according to his Vote as a Commissioner from the Burgh from which he is sent the Commissioner from the eldest Burgh presiding in the first Meeting and the Commissioners from the other Burghs in their respective Districts presiding afterwards by turns in the order as the said Burghs used to be called in the Rolls of the Parliament of Scotland and that in case any of the said fifteen Commissioners from Burghs shall decease or become legally incapable to sit in the House of Commons then the Town of Edinburgh Scotland or the District which chose the said Member shall elect a Member in his or their Place That none shall be capable to elect a Representative for any Shire or Burgh of Scotland unless twenty one Years of Age complete and Protestant excluding all Papists or such who being suspect of Popery and required refuse to swear and subscribe the Formula contained in the third Act made in the eight and ninth Sessions of King William's Parliament in Scotland nor shall be capable to elect a Representative to a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the time of passing this Act capable by the Laws of Scotland to elect as Commissioners for Shires or Burghs to the Parliament of Scotland Enacted Stat. 6 A. c. 6. c. That when any Parliament shall at any time hereafter be summoned or called on Notice to be forthwith given after Receipt of the Writs by the Shertff or Stewart of the time of Election for Knights of the Shire or Commissioners for Scotland at such time of Election the several Freeholders in the respective Shires and Stewartries shall meet and convene at the head Burghs of their several Shires and Stewartries and proceed to the Election of their respective Commissioners or Knights for the Shire or Stewartry Scotland and the Clerks of the said Meetings shall respectively return the Names of the Persons Elected to the Sheriff or Stewart of the Shire or Stewartry on a Precept in like manner to be directed by the Sheriffs of Edinburgh to the Lord Provost of that City and on Receipt of such Precept the City of Edinbusgh shall elect their Member and their common Clerk shall certify his Name to the Sheriff of Edinburgh On Precepts in like manner to be directed by the Sheriffs or Stewarts of the several Shires or Stemartries where the other fourteen Districts of Royal Burghs respectively are reciting the Contents and Date of the Writ and commanding them to elect each of them a Commissioner as they used formerly to elect Commissioners to meet at the presiding Borough of their respective District naming it on the thirtieth day after the Teste of the Writ unless Sunday and then the next day after and then to choose their Burgess for the Parliament The common Clerk of the then presiding Borough shall immediately after the Election return the Name of the Person so Elected to the Sheriff or Stewart of the Shire Scotland or Stewartry wherein such presiding Borough is And in case a vacancy shall happen in time of Parliament by the decease or legal incapacity of any Member a new Member shall be Elected in his Room conformable to the method herein before appointed and in case such Vacancy be of a Representative for any one of the said fourteen Classes or Districts for Royal Boroughs that Borough which presided at the Election of the deceased or disabled Member shall be the presiding Borough at such Election That from and after the Determination of this present Parliament 2 St. 12. Annae no Conveyance or Right whatsover whereupon Infeoffment is not taken and Seisin registred One Year before the Teste of the Writs for calling a New Parliament shall upon Objection made in that Behalf intitle the Person or Persons so Infeoft to Vote at that Election in any Shire or Stewartry in that Part of Great Britain called Scotland and in case any Election happen during the Continuance of a Parliament no Conveyance or Right whatsoevel whereupon Infeoffment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election shall upon Objection made in that Behalf Scotland intitle the
No Candidate who shall have in his own Name or in trust for him or his Benefit any new Officers or Place of Profit hereafter to be created or be a Commissioner or Sub-Commissioner Secretary or Receiver of Prizes Commissioner of the Armies Accounts Commissioner of the Sick and wounded Agent for any Regiment Commissioner for Wine Licences Governor or Deputy-Governor of any of the Plantations Commissioner in any out-Port or have a Pension from the Crown during Pleasure shall be capable of being elected or sitting c. as a Member who shall have in his own Name or in the Name of any Person or Persons in Trust for him or for his Benefit any new Office or Place of Profit whatsoever under the Crown which at any time hereafter shall be created or erected nor any Person who shall be a Commissioner or Sub-Commissioner of the Prizes Secretary or Receiver of the Prizes nor any Comptroller of the Accompts of the Army nor any Commissioner of Transports nor any Commissioner of the Sick and Wounded nor any Agent to any Regiment nor any Commissioner for Wine Licences nor any Governor nor Deputy-Governor of any of the Plantations nor any Commissioner of the Navy employed in any of the Out-Ports nor any Person having any Pension from the Crown during Pleasure shall be capeable of being Elected or of sitting or voting as a Member of the House of Commons If any Person being chosen a Member of the House of Commons shall accept of any Office of Profit from the Crown during such time as he shall continue a Member his Election shall be Members chosen accepting any Office of Profit from the Crown while they continue Members their Election void and a new Writ to issue but capable of being again Elected and is hereby declared to be Void and a new Writ shall issue for a new Election as if such Person so accepting was naturally Dead Nevertheless such Person shall be capable of being again Elected as if his Place had not become Void as aforesaid No greater Number of Commissioners shall be made for the Execution of any Office than have been employed in the Execution of any such Office from the first Day of the Session Nothing herein contained shall extend to any Member of the House of Commons being an Officer in Her Majesty's Navy or Army Members being Officers in the Navy or Army receiving any New Commission in either not incapacitated who shall receive any new or other Commission in the Navy or Army respectively If any Person hereby disabled or declared to be incapable to Sit or Vote in Parliament Members hereby incapacitated if returned their Election void and presuming to sit and vote forfeit 500 l. to any that will sue by Action of Debt c. wherin no Essoin c and but one Imparlance shall nevertheless be returned as a Member to serve for any County City Town or Cinque-Port in any such Parliament such Election and Return are declared to be Void to all Intents and Purposes and if any Person disabled or declared incapable by this Act to be Elected shall presume to sit or vote as a Member of the House of Commons in any Parliament such Person so sitting or voting shall forfeit 500 l. to be recovered by such Person as shall Sue by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed and only one Imparlance Forty five shall be the Number of the Representatives of Scotland in the House of Commons of the Parliament of Great-Britain G. Britain Stat. 5 Annae c. 8. Every Member of the House of Commons of the Parliament of Great-Britain until the Parliament of Great-Britain shall otherwise direct shall take the respective Oaths appointed to be taken instead of the Oaths of Allegiance and Supremacy The Union Act. by an Act of Parliament made in England in the First Year of the Reign of the late King William and Queen Mary The new Oaths of Allegiance and Supremacy And make subscribe and audibly repeat the Declaration mentioned in an Act of Parliament made in England in the Thirtieth Year of the Reign of King Charles the Second The Test and shall take and subscribe the Oath mentioned in an Act of Parliament made in England in the First Year of Her Majesty's Reign The Abjuration At such time and in such manner as the Members of both Houses of Parliament of England are by the said respective Acts directed to take make and subscribe the same upon the Penalties and Disabilities in the said respective Acts contained And it is declared and agreed that these Words This Realm The Crown of this Realm and the Queen of this Realm mentioned in the Oaths and Declaration contained in the aforesaid Acts which were intended to signify the Crown and Realm of England shall be understood of the Crown and Realm of Great-Britain and that in that Sense the said Oaths and Declaration be taken and subscribed by the Members of the Parliament of Great Britain None shall be capable to be elected a Representative for any Shire or Borough of Scotland but such as are twenty one Years of Age complete None capable to be elected for any Shire or Borough of Scotland under 21 Years nor unless a Protestant Papists and such as refuse the Formula excluded Like Incapacity on Candidates not at this Time capable by the Laws of Scotland Stat. 6. An. c. 7. and Protestant excluding all Papists or such who being suspect of Popery refuse to swear and subscribe the Formula contained in the third Act made in the 8th and 9th Sessions of King William's Parliament in Scotland nor shall be capable to be elected to represent a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the Time of passing this Act capable by the Laws of Scotland to be elected as Commissioners for Shires or Boroughs to the Parliament of Scotland A like Clause for incapacitating Persons to be elected c. Members of Parliament and likewise for incapacitating Members of Parliament with like Restrictions Exceptions and Penalties throughout the united Kingdom as are contained in the Statute 4 5 Annae c. 8. relating to Candidates and Members for the Parliament of England And further Candidates disabled to be elected or Members to sit c. in the Parliament of England under like Disabilities as to any Parliament of Great Britain That every Person disabled to be elected or to sit or vote in the House of Commons of any Parliament of England shall be disabled to be elected or to sit or vote in the House of Commons of any Parliament of Great Britain Except the present Commissioners for disposing the Equivalent by the present or any other Commission That every Person who shall refuse to take the Oath of Abjuration St. 6 Ann. c. 23. Candidates or others may require the Sheriff President of the Meeting c. on the Poll at any Election of Members in
no Person who shall hereafter come to the Possession of this Crown shall go out of the Dominions of England Scotland or Ireland without Consent of Parl. 8. That no Person who has any Office under the King Note or receives a Pension from the Crown shall be capable of serving as a Member of the House of Commons With divers other Resolves for better securing the Rights and Liberties of the People on which the Stat. 12. and 13. W. 3. c. 2. was made CHAP. XVII Passing of Bills See for this a MS. Discourse penes W. Bohun Journal Dom. Com. ON the 27th of July 1660 it was represented to King Charles the Second That by the constant Course of Parliament they have used to receive Acts of Grace and such Bills as concern the Redress of Grievances and Confirmation of the Subjects Liberties before they present Bills of Aid or Supply but now in Confidence of His Majesty c they tender a Money-Bill c. i. e. before a Redress of Grievances All Bills take effect and work from the Beginning of the Parliament or Session Hob. 111.33 H. 6.18 Bro. tit Parl. 86. tit Relation 35. Plow 79. Town Col. 209. except it be otherwise ordained by the Act itself 43 Eliz. 1601. while there were divers Disputes about a Bill Mr. Fleming the Queen's Solicitor took the Bill to look a Word in it after he had done and laid it on the Board one stood up and said Mr. Speaker after a Bill is ingrossed you ought to hold it in your Hand and let no Man look into it which was confessed by all And so the Speaker took it When a Bill is read Cook 22.115 the Speaker doth open the Parts of the Bill so that each Member of the House may understand the Intention of each Part of the Bill Such Bills Hakewel 134. as being first passed in one House are sent unto the other are always sent in Parchment fairly ingrossed Publick Bills are in due Course to be preferred in Reading and Passing before Private And of Publick Ibid. Col. 12.116 such as concern the Service of God and Good of the Church Secondly such as concern the Commonwealth in which are included such as touch the Person Revenue or Houshold of the King Queen c. and they ought especially to be preferred in Passing Lastly Private Bills are to be offer'd to be read and passed in such Order as they were preferred Town Col. 270. And they that carry them to give some brief Commendation of them Any Member of the House may offer a Bill for Publick Good Scobel 40. except it be for imposing a Tax which is not to be done but by Order of the House first had If any Member desire Ibid. that an Act made and in Force may be repealed or altered he is first to move the House in it and have their Resolution before any Bill to that Purpose may be offer'd and if upon the Reasons shew'd for repealing or altering such Law the House shall think it fit they do usually appoint one or more of the Members to bring in a Bill for that Purpose But the Speaker is not precisely bound to any of these Rules Hakewel 136. for the preferring of Bills to be read or passed but is left to his own good Discretion except he be specially directed by the House to the contrary and tho he be earnestly pressed by the House for the reading of some one Bill yet if he have not had convenient Time to read the same over and to make a Breviat thereof for his own Memory the Speaker doth claim a Priviledge to defer the Reading thereof to some other Time The Clerk being usually directed by the Speaker but sometime by the House what Bill to read Hakewel 137. with a loud and distinct Voice first reads the Title of the Bill and then after a little Pause the Bill it self which done kissing his Hand he delivereth the same to the Speaker who standeth up uncover'd whereas otherwise he sitteth with his Hat on and holding the Bill in his Hand saith The Bill is thus intituled and then readeth the Title which done he openeth to the House the Substance of the Bill which he doth either trusting to his Memory or using the Help or altogether the Reading of his Breviat which is filed to the Bill Sometimes reading the Bill it self Hakewel 137. Vido Scobel 42. especially upon the Passage of a Bill when it hath been much alter'd by the Commitees so that thereby it differeth very much from the Breviat When he hath open'd the Effect of the Bill he declareth to the House Id. 138. That it is the first Reading of the Bill and delivereth the same again to the Clerk The Bill containing the King's General Pardon hath but one Reading in the Lords House and one below Id. 138. Vid. Toâ— Col. 29 44 126. Vide Sir Simon d'Ewes Jour 91. Col. 2. The Reason is because the Subject must take it as the King will give it without any Alteration and yet many times Exceptions are taken at the Reading thereof for that it is not so favourable as in former Times The like of a Bill of Subsidies granted by the Clergy Hakewel Ibid. The usual Course is to spend the Morning before the House grow full Id. 139. in the first Readings and to defer the second or third Reading till the House grow full All Men of Law know that a Bill Town Cal. 238. which is only expository to expound the Common Law doth enact nothing neither is any Proviso good therein No Knight Col. 12.116 Citizen or Burgess ought to speak above once to one Bill in one Day unless sometime by Way of Explication At the first Reading of the Bill Hakewel 139. it is not the Course for any Man to speak to it but rather to consider of it and to take Time till the second Reading unless it carry Matter of apparent Hurt to the Commonwealth and so to be rejected Nor for any Addition Ibid. for thereby it is imply'd That the Body of the Bill is good which till the second Reading doth not regularly come to the Trial. If any Bill originally begun in the Commons House Id. 140. Scobel 42. upon the first Reading happen to be debated too and fro and that upon the Debate the House do call for the Question it ought to be not Whether the Bill shall be read the second Time for so it ought to be in ordinary Course but whether it shall be rejected If a Bill coming from the Lords be spoken against Hak. Ibid. and pressed to be put to the Question upon the first Reading the Speaker in Favour and Respect thereto shou'd not make the Question for Rejection as in the former Case but shou'd first make the Question for the second Reading and if that be deny'd then for Rejection But usually when any such Debate is the Speaker doth forbear to make any Question at all thereupon except he be much pressed thereto it
Sir Francis Popham being returned a Burgess for Chippenham by one Indenture Id. 14. and another Person returned for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determined But he was not so admitted and it was referred to the Committee for Privileges 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 should stand good and that he should sit in the House 22 Martii Ibid. 21 Jac. 1. Sir John Jackson and Sir Thomas Beaumont were both returned for one Burgess's Place for Pontefract Ordered 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. XXI A Session of Parliament and of Prorogations and Adjournments WHAT shall make a Session of Parliament See 1 Rol. R. 29. Hutton 61. 4 Inst 27. 1 Siderf 457. 1 Mod. Rep. 151 155. If several Bills are passed at one and the same Parliament none of them shall have Priority of the other for they are made all in one Day and Instant and each of them have relation to the first Day of the Parliament though in several Chapters and shall so be construed as if they had been all comprehended in one and the same Act of Parliament Sir W. Jones Rep. 22. Hob. 111. Bro. tit Parl. 86. and Relat. 35. Plowd 79.6 Levintz 9. Crooke says That though in Fiction of Law a Statute shall have relation to the first Day of the Parlaiment yet revera nothing is settled nor is it a perfect Statute till the Parliament is ended Jones ut sup 370. Vide cont ibid. 371. Hales Justice said That if the Parliament has several Prorogations and in the second or third Session an Act is made this shall not have relation to the Day of the Beginning of the Parliament that is to say to to the first Day of the first Session but only to the first Day of the same Session in which it is made Plowd 79.6 In a Session of Parliament though it continue never so many Weeks yet there is nothing prius aut posterius but all Things are held and taken as done at one and the same Time Rush Vol. I. Page 581. Jones in the Case of Sir John Elliot Ibid. p. 687. says We are Judges what shall be said a Session of Parliament Sed Quere de hoc The Passing of any Bill or Bills 4 Inst 27. 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 modern 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass'd both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2 Declared by Act of Parliament Ibid. 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 revers'd by Act 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 passed both Houses yet the Parliament continued and divers Acts passed Though Bills passed 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 passed either or both Houses and had no Royal Assent to 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 Common-wealth 4 Inst 28. for expediting of Causes than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holidays Rush Col. 537 This Message for Non-recess was not well pleasing to the House Sir Robert Philips first resented it and took Notice That in 12 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 our Right herein and to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns itself The Commission of Adjournment we never read but say This House adjourns it self If the King writes to an Abbot for a Corody for a Vallet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered That this be done ex Rogatu Regis And this Matter touching his Majesty's Pleasure about the Recess Rush Col. 537. was referred to a Committee and to consider the Power of the House to adjourn itself The Sovereign may adjourn the Parliament Sir Simon d'Ewe's Jour 318. Col. 2. as well as the Parliament adjourns itself When a Parliament is called 4 Inst 28. Hutton 61. Vid. Sir Simon d'Ewe's 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. The Petitions of the Commons were answered 4 Inst 28. and a Judgment given in the King's Bench reversed but no Act passed 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 passed 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 April Hakewel 180. 1604. In the last Session of the first Parliment of K.
James the First the House being desirous to have a Bill forth with passed declared That the Royal Assent to one Bill or more did not dissolve the Session without some special Declaration of his Majesty's Pleasure to that Purpose 1 2 Phil. Mar. The King and Queen came of Purpose into the Parliament House Ibid. 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 Arc. Parl. 93. 〈◊〉 Jour 7.12 â—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 Post 336. 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 See Touching the Commencement Prorogation and Dissolution of several Parliaments from the Beginning of Edward III. to the End of Richard III. in Cotton's Records per Totum and from the Beginning of Edward VI. in Hale's Parliaments pag. 107 to 110. and pag. 142 143 c. Upon a Prorogation of the Parliament On a Prorogation Bills to continue in Statu quo Burnet 's Reformation Vol. I. pag. 276. Journal Dom. Com. 15 May 1540. 32 Hen. 8. to the 25th a Vote passed That their Bills should remain in the State they were in and upon their next Meeting they went on accordingly On the 18th of February 1666 the Parliament was prorogued till the 10th of October 1667. the King present Memorandum That his Majesty by Proclamation 1 Siderf 338. dated 26 June 1667. Ann. 19. of his Reign summon'd his Parliament to meet on the 25th of July following by Reason of the War against the Dutch then in Being On which Day they met and adjourned at his Majesty's Appointment to the 29th of the same Month on which Day a Peace being then concluded the Parliament was by his Majesty's Appointment prorogued to the 10th of October as aforesaid A Parliament may be summon'd by Proclamation to meet before the Day to which they are prorogued Anno Dom. 1628. Rush Vol. I. pag 537. 4 Car. 10 April Mr. Secretary Cook delivered this Message from the King That his Majesty desired this House not to make any Recess these Easter-Holidays that the World may take Notice how earnest his Majesty and we are for the publick Affairs of Christendom the which by such a Recess would receive Interruption But This Message for Non-recess was not well pleasing to the House Sir Robert Phillips first resented it Post 366. and too Notice that in 12 18 Jac. upon the like Intimation the House resolved it was in their Power to adjourn itself or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of our Right herein and make a Declaration And accordingly this Matter touching his Majesty's Pleasure about the Recess was referred to a Committee and to consider the Power of the House to adjourn itself to the End that it being now yeilded unto in Obedience to his Majesty it might not turn to Prejudice in Time to come Sir Edward Coke spoke to the same Purpose and said I am as tender of the Privileges of this House as of my Life They are the Heart-Strings of the Commonwealth The King makes a Prorogation but this House adjourns itself The Commission of Adjournment we never read but say this House adjourns itself If the King write to an Abbot for a Corody for a Valet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered that this is done ex rogatu Regis Hereupon a Message was sent to the King That the House would give all Expedition to his Majesty's Service notwithstanding their Purpose of Recess To which Message his Majesty returned this Answer That the Motion proceeded from himself in regard of his Engagement in the Affairs of Christendom wished them all Alacrity in their Proceedings and that there be no Recess at all A Message from the King by the Speaker Ibid. pag. 608. same Year That his Majesty commands for the present they adjourn the House till To-morrow Morning and that all Committees cease in the mean Time And the House was accordingly adjourned On Wednesday February 25. the same Year both Houses by his Majesty's Command adjourned themselves until Monday Morning the 2d of March. Monday Ibid. pag. 660. and Appendix pag. 9. 2d of March the Commons meet and urged the Speaker to put the Question who said I have a Command from the King to adjourn till the 10th of March and put no Question endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was published in the House Hereupon the King sent for the Serjeant of the House but he was detained the Door being locked Then he sent the Gentleman-Usher of the Lords House with a Message and he was refused Admittance till the said Votes were read And then in much Confusion the House was adjourned till the 10th of March according as it was intimated from his Majesty In Mr. Mason of Lincoln's Inn his Argument for Sir John Elliot he said the second Charge in the Information against him was the Contempt to the Command of the King's Adjournment Jac. 18. It was questioned in Parliament whether the King can adjourn the Parliament although it be without doubt that the King can prorogue it And the Judges resolved That the King may adjourn the House by Commission and 27 Eliz. it was resolved accordingly But it is to be observed and wondered Rush Vol. I. in Appendix pag. 48. that none was then impeached for moving that Question And it is to be noted that they resolved that the Adjournment may be by Commission but did not resolve that it may be by a verbal Command signified by another and it derogates not from the King's Prerogative that he cannot so do no more than in the Case of 26 H. 8. c. 8. that he cannot grant one Acre of Land by Parol The King himself may adjourn the House in Person or under the Great Seal but not by verbal Message for none is bound to give Credit to such Message but when it is under the Great Seal it is Teste meipso And if there was no legal Command then there can be no Contempt in the Disobedience of that Command In this Case no Contempt appears by the Information for the Information is that the King had Power to adjourn Parliaments Then put the Case the Command be that they should adjourn themselves this is no Pursuance of the Power which he is supposed to have
their Serjeant without Writ It is the Law and Custom of Parliament 4 Inst 14 34. Rot. Parl. â—3 E. 3. n. Cot. Records f. 17. n. 6 9. That when any new Device is moved on the King's behalf in Parliament for his Aid or the like the Commons may answer That they tender the King's Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countries Whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament Mar. 19. Journal Dom. Com. 1677. It was conceived by the Commons that according to the antient Course and Method of Transactions between the two Houses when a Bill with Amendments is sent from either House to the other by Messengers of their own the House that sends them gives no Reasons of their Amendments but the House to whom it is sent if they find Cause to disagree do use to give Reasons for their Dissent to every particular Amendment every one of them is supposed to carry the Weight of its own Reason with it until it be objected against May 28. Ibid. 1678. A Paper of Reasons against a Bill viz. for wearing Woollen being printed and delivered at the Door was committed it being irregular for Reasons to be printed and published against a publick Bill before a Petition be exhibited to the House against the Bill It is to be observed 4 Inst 14. though one be chosen for one particular County or Borough yet when he is return'd and sits in Parliamment he serveth for the whole Realm for the End of his coming thither as in the Writ of his Election appeareth is general ad faciendum consentiendum c. If Offences done in Parliament might have been punished elsewhere 4 Inst 17. it shall be intended that at some Time it would have been put in Ure As Usage is a good Interpreter of Laws Coke Lit. 81. b. so Non-usage where there is no Example is a great Intendment that the Law will not bear it Not that an Act of Parliament by Non-user can be antiquated or lose his Force Coke Lit. 81. b. but that it may be expounded or declared how the Act is to be understood There is no Act of Parliament but must have the Consent of the Lords 4 Inst 25. the Commons and the Royal Assent of the King and whatsoever passeth in Parliament by this threefold Consent hath the Force of of an Act of Parliament The Difference between an Act of Parliament Ibid. and an Ordinance in Parliament is for that the Ordinance wanteth the threefold Consent and is ordained by one or two of them Some Acts of Parliament are introductory of a new Law Ibid. and some be declaratory of the ancient Law and some be of both kinds by addition of greater Penalties or the like Ibid. Some Acts are general and some private or particular All Acts of Parliament relate to the first Day of Parliament 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 Relation 35. 4. Inst 28. Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon the Signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn itself And then it is prorogued or adjourn and not before 39 Eliz. 1597. Towns Col. 101.102 Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. Nov. 5. Through a meer Mistake and Error of the Speaker and themselves the House conceived themselves to have been Adjourned by the Lord Keeper the first Day of this Parliament to this present Day When it is dissolved Ibid. the House of Commons are sent for up to the Higher House and there the Lord Keeper by the King's Commandment dissolveth the Parliament and not before A Parliament cannot be discontinued or dissolved but by Matter of Record Hutton 62. and that by the King alone The King at the Time of the Dissolution ought to be there in Person 4 Inst 28. or by Representation for as it cannot begin without the Presence of the King either in Person or by Representation so it cannot end or be dissolved without his Presence either in Person or by Representation Nihil enim tam Conveniens est naturali aequitati Bracton unumquodque dissolvi eo ligamine quo ligatum est By the Statute of 33 H. 8. c. 21. Ibid. it is declared by Act of Parliament That the King's Letters Patents under his Great Seal and signed with his Hand and declared and notified in his Absence to the Lords Spiritual and Temporal and Commons assembled in the House of Parliament is and ever was as good Strength and Force as if the King's Person had been there personally present and had assented openly and publickly to the same In the Lords House the Lords give their Voices from the puisne Lord seriatim 4 Inst 34.35 by the Word of Content or Not Content The Commons give their Voices upon the Question by Yea or No. Every Lord Spiritual and Temporal 4 Inst 43. Crompton 4. b. and every Knight Citizen and Burgess shall upon Summons come to the Parliament except he can reasonably and honestly excuse himself or else he shall be amerced c. that is respectively a Lord by the Lords and one of the Commons by the Commons By the Statute of 6 Hen. 8. c. 16. no Knight Ibid. Crompton 4. b. Citizen or Burgess of the House of Commons shall depart from the Parliament without Licence of the Speaker and Commons the same to be entered of Record in the Book of the Parliament upon Pain to lose their Wages Sickness is no Cause to remove any Knight 4 Inst 8. Citizen or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewe 's Jour 244. Col. 2. Resolved by the House That any Person being a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any Ways be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask Leave of Mr. Speaker on pain of paying Six Pence to the Vse of the Poor If a Lord depart from Parliament without Licence 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords And so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law Custom 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. or Priviledge of Parliament Cardinal Wolsey
the King might refuse the Return of him and for that Cause he was removable out of the House And therefore the Lord Chief Justice said That in the 35th of Henry the Sixth it was so adjudged in Parliament which answers the Precedents vouched by the Commons of that Time And also he said That in the first Year of Henry the Seventh it was adjudged in Parliament That Persons outlawed or attainted could not sit in Parliament without Restitution by Act of Parliament And he said That though the Books do not warrant his Saying yet the Parliament Roll which he had seen does warrant it which any Man might see 3. They resolved at the Instance of the King himself That the Party could not be discharged from the Outlawry without a Scire Facias sued against the Party Creditor Plantiff in Debt and Justice Windam for that Purpose recanting his former Opinion said That he upon perusing of his Books and by Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31st of the Queen concerning Proclamation to be made in the County c. they all resolved as before Times it had been resolved That no Outlawry by that Statute was void until a Judgment declaring That there was no Proclamation issued forth to the County where the Party was Resiant at the Time of the awarding of the Exigent 5. As for the Statute of 7 Hen. 4. which enacts That the Indenture shall be only the Return of the Sheriff the Judges said That was true that such was the Statute and that that was his Return for so much but that Statute doth not restrain the Sheriff from returning any other Thing material which disables the Parties chosen 6. It was held That the Indorsement of the Writ comprehending the Matter of the Outlawry was material and not a Nugation 7. And lastly they resolved That by the Return of the Sheriff it apeared that Sir Francis Goodwyn was the same Person who was outlawed 31 Eliz. by the Name of Francis Goodwyn Esquire and 39 Eliz. by the Name of Francis Goodwyn Gentleman and that by the Words of the Return scilicet Idem Franciscus Goodwyn Miles Vtlagatus existit c. And they also agreed That no Person outlawed ought to have his Privilege of the Parliament-House and that all the Precedents vouched by the Commons were after the Parties were Members of the House and not before they were returned But notwithstanding these Resolutions scilicet the Resolution of the Judges the Commons House hold clearly That Sir Francis Goodwyn was well received into Parliament and the King commanded them to confer together and resolve if they could of themselves and if they could not resolve to confer with the Judges and then to resolve and when they were resolved then to deliver their Resolution to his Council not as Parliament-Men but as his Privy Council by whose Hands he would receive the Resolution and for that Purpose he left them behind him he himself being to ride to Royston a hunting And to pursue the Commandment of the King the Commons House clearly resolved That what they had done was well and duly done and they were of Opinion clearly against the Judges as to the Matter of the Outlawry and that Ratione of the Precedents And also that the Parliament only had to do with the Sheriff's Returns of Members of Parliament and that the Returns ought not to be made till the first Day of the Parliament and therefore They would not confer with the Judges But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satisfaction of the King which Committee by the Assent of all the House of Commons sent to the Lords this Resolution following videlicet As to what the King taxed the House for That they meddled with the Sheriff's Return of Members of Parliament being but one half of the Body the Lords being one and the principal Part of the Parliament's Body Note This Resolution was writen in Parchment and so delivered to the Council of the King not as Parliament-Men but representing the King's Person and a Copy thereof was kept in the House As to that they answered That all Writs for the Election of Members of Parliament were returned into the Parliament-House before 7 Hen. 4. at which Time it was enacted That all such Returns ought to be made in Chancery and that appeared by the Records from the Time of Edward the First until the said Year of the Seventh of Henry the Fourth And therefore the Parliament must of Necessity have only meddled with the Returns till the making of the said Statute of the Seventh of Henry the Fourth at which Time the Place of the Return was altered and enacted to be in Chancery but yet that did not take away the Jurisdiction of the Parliament to meddle with the Returns of the Members of Parliament but that remained as it was before And this was manifest as well by Reason as by Use For that Court is to meddle with Returns where the Appearance and Service of Members is to be made and used but in the Parliament only the Appearance and Service are to be made and used and therefore in the Parliament only are the Returns to be examined and censured Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth the Clerk of the Crown attends the Parliament every Day till the End of it with all the Writs and Returns and at the End of the Parliament he brings them into the Petty-Bag The Precedents also do warrant this intermeddling with Returns for the Parliament as in the Twenty-ninth of the Queen a Writ issued forth to the Sheriff of who made a Return before the Day into Chancery and the Chancellor upon that Return containing such Matter as this Writ now contains sent a second Writ to the said Sheriff who thereupon made a new Election and that second Writ was also returned and both the Writs and Returns brought into Parliament and there censured by the Parliament That the first should stand and that the second Election was void and that the Chancellor hath no Power to award a second Writ nor to meddle with the Return of it and divers other Precedents were shewn by the Commons to the same Effect videlicet In the Nine and twentieth of Queen Elizabeth one And in the Three and fortieth of Queen Elizabeth another And in the Thirty fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parliament examined it and upon Examination thereof they found the Return true and gave a Warrant for another Writ As to the Matter That they were but one half of the Body to that they said That though in the making of Laws they were but an half Body yet as to Censuring of Privileges Customs Orders and Returns of their House they were an entire
Liberty of the Subject and when obstructed or denyed to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel c. as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker Crompton 2.4 Inst 1. and the Knights Citizens Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons St. 5 Rich. 2 c. 4. Rast 140. and Commonalties which shall be summon'd to Parliament shall come as they have been used and accustom'd of antient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of antient Time hath been used Vide ante p. 17. Algernon Sidney c. 3. Sect. 38 An Eminent and Noble Author has in his Discourses on Government asserted that the Power of calling and dissolving Parliaments is not simply in our Kings alone And in support of this Assertion gives us the following Reasons viz. First says he the King can have no such Power unless it be given him by Law for every Man is naturally Free and the same Power that makes him King gives him all that belongs to his being King and no more 'Tis not therefore an Inherent but only a Delegated Power and whoever Receives it is accountable to those who gave it for they who give Authority by Commission do always retain more than they Grant Secondly The Law for Annual Parliaments expresly Declares it not to be in the King's Power as to their Meeting nor consequently as to their Continuance for they meet to no Purpose if they may not continue to do the Work for which they meet and it were absur'd to give them a Power of Meeting if they might not continue till the End for which they met were attained Qui Dat Finem Dat Media ad Finem Necessaria the only Reason End why Parliaments do Meet is to provide for the publick Good and they ought to Meet and continue for that End they ought not therefore to be Dissolved till it be accomplished and 'twas for this Reason that the Opinion given by Tresilian that Kings might Dissolve Parliaments at their Pleasure Note was adjudg'd to be a principal part of his Treason See other Reasons there Assign'd and on the whole he concludes that Parliaments have in themselves a Power of Meeting Sitting and Acting for the Publick Good After which Ibid p. 432. he further Prosecutes the same Point and then proceeds to shew That as the Peoples Delegatees or Representatives in Parliament do not meet there by a Power derived from Kings but from those that chuse them so they who Delegate Powers do always retein to themselves more than they give and therefore the People do not give their Delegates an absolute Power of doing what they please but do always retein to themselves more than they confer on their Deputies who must therefore be accountable to their Principalls Vide plura ibid. CHAP. VII The Power of the House of Commons in particular Cases THE House of Commons is a House of Information and Presentment Rush Coll. 217. vol 1. but not a House of Definitive Judgment The House of Commons is a considerable Grand Jury Trials of the Regicides p. 53. 'tis a good Billa vera they return their Orders are Records and that appears also by 6. H. 8. c. 16. where the Words are viz. And the same Licence shall be entred on Record in the Book of the Clerk of the Parliament appointed or to be appointed for the Common's House c. Sir Audley Mervyn's Speech to the Duke of Ormond 13. Heb. 1662. containing their Sum of Affairs in Ireland p. 17. And more directly in their point upon the Trial of Harrison the Regicide Mr. Jessop was produc'd to attest several Orders of the Common's House Mr. Jessop being Clerk of the House Note the said Stat. 6. H. 8. c. 16. says Rast Stat. p. 429. 4. Inst 23. Hales of Parl. 213. 215. That no Member should depart from the Parliament nor absent themselves from the same without the Licence of the Speaker and Commons in Parliament Assembled to be entred upon Record in the Book of the Clerk of the Parliament And yet some Judges have been of Opinion Hob. Rep. 110.111 that the Journals of the House of Commons are no Records but only Remembrances Before the Year 1550. 3. E. 6. Bur. Hist Ref. vol. 2. p. 143. it seems that no Eldest Sons of Peers were Members of the House of Commons and Sir Francis Russel becoming by the Death of his Elder Brother Heir Apparent to the Lord Russel it was on the 21st of January carried upon a Debate that he should abide in the House as he was before But this was by a special Order so it is entered in the Original Journal of the House of Commons and is the first Journal that ever was taken in that House 1. Car. 1. 1625. Resolved Rush ib. that common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find Cause to the King or Lords 26 Jan. 28 Hen. 6. Selden's Judicat p. 29. Vid. id 38 The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain Pettyt's Miscell Pref. c. p. 5. and not to be deny'd That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i. e. Britannos Populus magna ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal
disturb the House shall pay the like Forfeiture And it is further ordered that the Business then in Agitation being ended no new Motion of any new Matters shall be made without leave of the House 5 Dec. 1640. Id. 84. Ordered that no Bills have their second Reading but between Nine and Twelve 10 Dec. 1640. Id. 92. Declared for a constant Rule that those that give their Votes for the Preservation of the Orders of the House shou'd stay in and those that give their Votes otherwise to the introducing of any new Matter or any Alteration should go out 8 Sept. 1641. Id. 392. See how far an Order of this House is binding In March 1627. Rush Coll. vol. 1.513 Resolved that is the ancient and undubitable Right of every Freeman that he hath a full and absolute Property in his Goods and Estate that no Tax Tallage Loan Benevolences or other like Charge ought to be commanded or levied by the King or any of his Ministers without common Consent by Act of Parliament March 1627. Id. 513. Resolved that no Freeman ought to be detained or kept in Prison or otherwise restrained by the Command of the King or Privy-Council or any other unless some Cause of the Commitment Detainer or Restraint be expressed for which by Law he ought to be committed detained or restrained Resolv'd Id. 513. that the Writ of HabeasCorpus may not be Detain'd Deny'd but ought to be granted to every Man that is committed or detained in Prison or otherwise restrained tho' it be by the Command of the King the Privy-Council or any other he praying the same Resolved that if a Freeman be committed or detained in Prison or otherwise restrained by Command of the King the Privy-Council or any other no Cause of such Commitment Detainer or Restraint being expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the said Party then he ought to be delivered or bailed 2 April 1628. Resolved Id. 523. that no Freeman ought to be confined by any Command from the King or Privy-Council or any other unless it be by Act of Parliament or by other due Course or Warrant of Law King James I. having in 1621. Rapin Vol. 2. No. 54. p. 208.209 for some Words spoken by him in the House it occasioned a Remonstrance of the Commons to the King therein complaining of Breach of Privilege and asserting their Liberty of Speech and Debate to be their antient and undoubted Right and Inheritance receiv'd from their Ancestors c. This they sent to the King by twelve Members at the Head of whom they affectedly set Sir R. Weston a Privy-Counsellor one whom they conceiv'd had incens'd the K. against them who were receiv'd very roughly and their Remonstrance rejected But some Days after the K. sends 'em a long Answer in Writing wherein towards the Conclusion he objects against the stiling their Privileges Id. p. 211. their antient and undoubted Right and Inheritance and wishes they had said i. e. commands 'em to acknowledge that their Privileges were derived from the Grace and Permission of him and his Ancestors The House on reading this Answer plainly perceiv'd the King's Aims The Commons Protestation in Vindication of their Privileges Ibid. p. 211. 212. c. and knowing the Parl. was going to be prorogued or dissolv'd drew up a Protestation in Order to vindicate their Privileges viz. The Commons now assembled in Parl. being justly occasion'd thereunto concerning sundry Liberties Franchises and Privileges of Parliament amongst others here mentioned do make this Protestation following That the Liberties Franchises Privileges and Jurisdiction of Parliament are the antient and undoubted Birth-right and Inheritance of the Subjects of England and that the arduous and urgent Affairs concerning the King the State and the Defence of the Realm and of the Church of England and the Maintenance and making of Laws and Redress of Mischiefs and Grievances which happen daily within this Realm are proper Subjects and Matter of Counsel and Debate in Parliament And that in the handling debating and proceeding in those Businesses every Member of the House of Parliament hath and of Right ought to have Freedom of Speech to propound treat reason and bring to Conclusion the same and that the Commons in Parliament have like Liberty and Freedom to treat of these Matters in such Order as in their Judgment shall seem fittest See of the Terms Parliament and Prerogative Id. p. 213. and that every Member of the said House hath like Freedom from all Impeachment Imprisonment and Molestation other than by Censure of the House it self for or concerning any speaking reasoning or declaring of any Matter or Matters touching the Parliament or Parliament-Business and that if any of the Members be complained of and questioned for any Thing said or done in Parliament the same is to be shewed to the King by the Advice and Assent of the Commons assembled in Parliament before the King give Credence to any private Information But the K. being inform'd of this Protestation call'd a Council and sending for the Commons Journal in Presence of the Judges c. with his own Hands tore it out of the Journal and in a few Days after dissolved the Parliament but this did not deter the Commons from insisting on their Claim And in his Son's Reign it was asserted with a Witness and is now confirm'd by the Claim of Right and other Statutes Mar. 12. 1700. the House Journal Dom. Com. on a Report of that Part of the K's Speech which related to the Hanover Succession agreed with the Committee in these Resolves viz. 1. That all Things relating to the well governing of this Kingdom which are properly cognizable in the P. Council shall be transacted there and all Resolutions taken thereupon shall be sign'd by the P. C. 2. That no Person whatsoever that is not a Native of England Scotland or Ireland or of the Dominions thereunto belonging or who is not born of English Parents beyond the Seas altho such Person be naturaliz'd or made a Denizen shall be capable to be of the P. C. or a Member of either H. of P. or to enjoy any Office of Place or Trust either Civil or Military P. Council 3. That no such Person c. shall be capable of any Grant of Lands Tenements or Hereditaments from the Crown to himself or any other in Trust for him 4. That upon the further Limitation of the Crown in Case the same shall come to any Person not being a Native of this Kingdom of England this Nation be not oblig'd to engage in any War for the Defence of any Dominions or Territories not belonging to the Crown of England without the Consent of Parliament 5. That whoever shall hereafter come to the Possession of this Crown shall join in Communion with the Church by Law establish'd 6. That no Pardon shall be pleaded to any Impeachment in Parliament 7. That
The House may be adjourned two Ways to wit by the King i. e. by Writ or by the House itself the last is their own voluntary Act which the King cannot compel for Voluntas non cogitur Note Rush 3 Part Vol. I. pag. 385. Vnder the Number of forty Members the House of Commons is not reputed a House so as to make an Adjournment CHAP. XXII The proper Laws and Customs of Parliament THE Laws 4 Inst 50. Customs Liberties and Privileges of Parliament are better to be learned out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one Man's Pen. If an Ordinance only be entered in the Parliament Roll Sir William Jones pag. 104. and it hath the Reputation and Use of an Act of Parliament that makes it an Act of Parliament If any doubt be conceived upon the Words or Meaning of an Act of Parliament Rush Vol. 3. pag. 77 78. it is good to construe it according to the Reason of the Common Law When Laws shall be altered by any other Authority Ibid. pag. 653. than that by which they were made says King Charles the First in his Speech at Newark to the Inhabitants of Nottingham 1642. your Foundations are destroyed As every Court of Justice hath Laws and Customs for its Directions 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 determined adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Commons Laws of this Realm used in more inferior Courts which was so declared to be secundùm Legem Câ—nsuetudinem Parliamenti concerning 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 Customof 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 Witness 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 punished 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 armed against Games Plays and strange Shews c. during the Parliament that the Parliament may not be disturbed or the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Resolved Towns Col. 116. Vide. Sir Simon d'Ewe's Jour 505. Col. 1. according to the ancient Custom of the House That all the Members of the same which did speak against passing of the Bill should 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 accomanied with all the Members of the House and delivered the said Bill to Mr. Speaker 17 Dec. 1597. The same Ceremony on the like Occasion omitted Id. 117. Sir Simon d'Ewe's Jour 574. Col. 2. upon a Motion of the Speaker and ordered accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was delivered unto him which he took and deliver'd it to the House which they sent baek again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll according to the usual Acts Id. 333. To which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queen's 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 Commons 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 Bill en tiel Form les Commons sont assentuz al Scedule les Seigneurs a mesme cestuy Bill annex donques serra bayl al Clerk del Parliament If the Commons grant Poundage for four Years and the Lords grant it but for two Years the Bill shall not be sent back to the Commons but if the Commons grant but for two Years and the Lords for four Years there it shall be redelivered to the Commons And in that Case the Lords may make a Schedule of their Intent or Endorse the Bill in this Form The Lords do assent to the continuing for four Years And when the Commons have the Bill again and will not assent to it that cannot be an Act But if the Commons will assent then they endorse their Answer on the Margin below within the Bill in this Form The Commons do assent to the Schedule of the Lords annexed to this Bill and then it shall be sent to the Clerk of the Parliament The Custom and Privilege of this House hath always been first Vide Sir Simon d'Ewe's Jour 483. Col. 2. to make Offer of the Subsidies from hence then to the Upper House except it were that they present a Bill unto this House with Desire of their Assent thereto and then to send it up again And Reason it is that we should stand upon our Privilege seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz. 1592. The Lord Chancellor in Parliament offered the Commons a Writ to deliver their Burgess but they refused it Petyt 's Miscel Parl. 4. in Margin as being clear of Opinion That all their Commandments and Acts were to be done and executed by
offered to the House till the Leave of the House be desired and the Substance of such Bill made known either by Motion or Petition It hath at some Times been ordered Hakewel 135. That every one that preferreth a private Bill should pay five Pounds to the Poor as in 43 Eliz. towards the End of the Parliament when they were troubled with much Business but it holdeth not in other Parliaments Scobel 41. Nevertheless the Speaker had Liberty to call for a private Bill to be read every Morning and usually the Morning is spent in the first Reading of Bills untill the House grow full If any publick Bill be tendered Ibid. the Person who tenders the Bill must first open the Matter of the Bill to the House and offer the Reasons for admitting thereof and thereupon the House will either admit or deny it 7 Martii 1606. Mr. Id. 46. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter itself And it was conceived for a Rule That no Man was to be imployed in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be employed Presidents reported by Mr. Pryn 28 Jan. 1666. about the Method of Proceeding upon the Impeachment of the Lord Mordant 28 May 1624. In the Lords Journal Council to be allowed Impeachment which is entered in haec verba and allows Council in all Cases 1 2 Car. 1. A great Dispute if the Earl of Bristol impeached for High Treason should be allowed Council The Lords then stood on the Order above recited The King objected to that Order that the Judges and his Council had not assented thereto yet the King consented to avoid being thought rigorous that the Earl of Bristol should be allowed Council so it were not drawn into Precedent Council was allowed to Sir George Bynion Council allowed to Garney Lord Mayor of London impeached for High Crimes and Misdemeanors 5 11 July 1642. and 1 2 August Sept. 30. 1645. An Impeachment of of the Earl of Strafford H. Poulton c. for striking Sir Arthur Haselrig Upon all which the House did acquiesce in the Lord Mordant's having Council As to his sitting within the Bar The Lords insisted on it on the Precedents of 18 Jac. the Bishop of Landass and 1645. the Lord Stamford Seignor Coke Litt. Rep. 330. Elect. 1 Car. 1. Viscount de Bucks Chivaler de Norsolk Comment que ill abstein de la maison uncore il avoit privilege versus la Dame Cleer The Privileges of Parliament consist in Three Things May 's Hist Parl. l. 3. p. 27 Sir Robert Atkin's Power of Parliaments 36. Rush Col. Vol. 1.663 First as they are a Council to advise Secondly a Court to judge Thirdly a Representative Body of the Realm to make repeal or alter Laws Upon some Questions propounded to the Judges Anno 1629. 5 Car. 1. all the Judges agreed That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a parliamentary Course Their Rights and Privileges are the Birth-right and Inheritance not only of themselves Rush Col. Vol. 3. p. 1. 458. but of the whole Kingdom wherein every Subject is interested The Violating of the Privileges of Parliament Rush Col. Vol. 3. p. 1. 475. Rush Col. Vol. 1. p. 537. is the Overthrow of Parliament The Privileges of the House says Sir Edward Cook are the Heart-Strings of the Commonwealth and therefore if the King desires a Nonrecess I desire that this may be enter'd That it is done ex rogatu Regis The King viz. Charles II. Journ of House of Commons in his Letter to the King of Spain declares That the Murder of his Father was not the Act of the Parliament or Kingdom of England but of a little Company in the Kingdom 23 Aug. 1660. Expulsion from the House for Words Thursday in the Morning 27 May Diurnal Occurrences of Parliament from Nov. 3. 1640. to Nov. 3. 1641. p. 11â— 1641. Mr. Tayler a Barrister and Burgess for Old Windsor was brought upon his Knees in the House of Commons for speaking some Words in Disparagement of the whole House about the Earl of Strafford's Death saying They had committed Murder with the Sword of Justice and that he would not for a World have so much Blood lie on his Couscience as did on theirs for that Sentence Which Words being proved against him by the Mayor of Windsor to whom he spoke them and some others he was thereupon expelled the House and voted uncapable of ever being a Parliament Man committed to the Tower during Pleasure to be carried down to Windsor there to make Recantation for those Words and to return back to the House of Commons to receive further Sentence And it was ordered That a Writ should presently issue out for a new Election is his room The 2d of June he petitioned to be restored upon his Submission Id. p. 116. Id. the where Rush Col. part 3. vol. 1. fo 278 280. But his Petition would not be hearkened unto A Member sent to the Tower for discovering what was said in the House in a former Parliament Mr. Francis Nevill Rush Col. part 3. vol. 1. fo 169. of Yorkshire a Member of the House was February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament which met 13 Apr. 1640. by discovering to the King and Council what Words some Members did let fall in their Debate in that House Whereupon Mr. Bellasis Knight for Yorkshire and Sir John Hotham were committed by the Council-Board And Mr. Nevill being brought to the Bar was by the House committed to the Tower of London and Sir William Savill touching the same Matter was ordered to be sent for in Custody CHAP. XXIII Privilege of Parliament THE Privilege of Tenants in Ancient Demense Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service for their Privilege comes by Reason of their Service and their Service is known by all to be before the Conquest in the Time of Edward the Confessor and in the Time of the Conqueror Every Man must take Notice of all the Members of the House returned of Record 4 Inst 23.24 at his Peril Otherwise it is of the Servant of any of the Members of the House Id. 24. A Member of Parliament shall have Privilege of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Privilege is due eundo Scobel 88. morando redeundo for the Persons of Members and their necessary Servants and in some Cases for their Goods and Estates also during the Time For their own Persons they have been privileged from Suits Ibid. Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or called to attend upon any Suit in other Courts by Subpoena