Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Just Published Parliamentary and Political TRACTS written by Sir ROBERT ATKINS Knight of the Bath and late one of the Judges of the Court of Common-Pleas Containing I. THE Power Jurisdiction and Privilege of Parliament and the Antiquity of the House of Commons asserted Occasioned by an Information in the King's-Bench by the Atorney-General against the Speaker of the House of Commons II. An Argument in the great Case concerning Election of Members to Parliament between Sir Samuel Barnardiston Plantiff and Sir William Soame Sheriff of Suffolk Defendant in the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber III. An Enquiry into the Power of dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas intitled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hale's Case IV. A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England V. A Defence of the late Lord Russels's Innocency by way of Answer or Confutation of a Libellous Pamphet intitled An Antidote against Poison with two Letters of the Author of this Book upon the Subject of his Lordship's Tryal VI. The Lord Russel's Innocence further defended by way of Reply to an Answer intitled The Magistracy and Government of England vindicated VII The Lord Cheif Baron Atkins's Speech to Sir William Ashurst Lord Mayor Elect of the City of London at the Time of his being sworn in their Majesties Court of Exchequer Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF PARLIAMENTS Shewing their Antiquity Names Kinds and Qualities Of the three Estates and of the Dignity and Excellency of Parliaments their Power and Authority Of the Election of Members of the House of Commons in general their Privilege Qualifications and Duties Of the Electors and their Rights Duties and Manner of Elections Of the Returns to Parliament the Sheriff's and other Officers Duty therein Of the Manner of Election of the Speaker and of his Business and Duty Of the Manner of passing Bills and the Orders to be observed in the House of Commons Of Sessions of Parliament as also of Prorogations and Adjournments Together with the proper Laws and Customs of Parliaments With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the County of Bucks 1 Jac. I. The SECOND EDITION with Large Additions LONDON Printed for J. STAGG in Westminster-Hall THE PREFACE IT must be confessed that Lex Parliamentaria or Parliamentary Law cannot be meant or intended to signify any Prescription or Application of Laws to that Power which in itself is boundless and unlimited This Collection therefore only shews what Parliaments have done and not what they may or ought to do The Parliament alone can judge of such Matters as concern their own Rights Authorities or Privileges And yet seeing the Phrase Parliamentary Law or Law of Parliaments has for some Ages past obtained Lord Coke Sir Matth. Hales's c. and that too among Authors of great Name I hope the present or any future Parliament will not censure me for a Word misapplied or for endeavouring to illustrate that Authority which is improperly denominated Parliamentary Law The Parliament itself is no doubt properly to be stiled The fundamental Law and Constitution of this Kingdom as it comprehends all Legal Powers whatsoever But as God and Nature influenced the Voice and Desires of the People to this Form of Government by Parliaments so it must be confessed that the same supream Power also influenced their Voices and Desires to establish this Parliamentary Government for the Safety and Preservation of the Governed and thereby constituted the Salus Populi to be the supream Law to whose Support all other Laws Powers and Authorities ought to tend 'Tis for this End Kings are created and for this End Parliaments assemble that so the Polity and Government of the Nation may be administered with Honour and with Safety for the Good of the whole Community Nor can it be denied but that Parliaments in former Times esteem'd it as their most incumbent temporal Duty to oversee recognize and resirain within the Bounds of Law the Commands and Acts of Kings and to take care that that great and honourable Trust reposed in the Hands of the Prince for the Good of the People might be rightly and duly administered and not perverted or abused to the Invasion of their Rights or the Subversion of the Constitution Brac p. 34 Flet p. 2.17 vide hic p. 89. 'Twas the Sense of this Duty of Parliaments induced both Bracton an eminent Judge under King Henry III. and Fleta a learned Lawyer in King Edward I's Time to record this great Duty of Parliaments to succeeding Ages And from this very Motive it was See the Preface to Privilegia Londini p. 6 7. that our antient Parliaments were so cautious as to oblige our Kings to swear at their Coronations Concedere justas Leges quas vulgus elegerit That they would grant such just Laws as the common People should choose See this Oath admirably well explained in Sadler's Rights of the Kingdom Page 71 88 91. c. From all which and much more that may be added I think it clearly appears That both Kings and Parliaments Lords and Commons and all Laws of Government whatsoever were in their first Intention instituted and ordained for the sole Good and Benefit of the People And where-ever all or any of them are perverted from that View they loose the Nature of their first Intention and ought to receive a contrary Denomination And from the foregoing Particulars I at present apprehend that the Lex Parliamentaria or Fundamental Law of Government in this Nation was not originally founded on any Capitulation or Compact between the King and the People as is usually done in Contracts of Bargains and Sales or other Purchases For that would infer a separate Interest between Prince and People But who will say that a British Monarch can by Law have a distinct Interest from his People Also the mutual Obligation that is established between the Prince and People by the Laws of this Kingdom have laid an unsurmountable Bar against any such Capitulation or contracting Project For by the original and inherent Nature of our Government there is such amutual Relation and political Connection created between the King and his People as in that natural Relation and Connection between the Head and the Members of the Body so that in neither Instance can the Head say to the Members I have no need of you c. This mutual Relation between Prince and People seems to have been interwoven in the fundamental Being and impressed in the very Heart of our Constitution c. The Publisher here thinks fit to declare That this Book has
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
against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only which Bishops are not Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae i.e. Lex Parliamenti d. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of King's-Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law are guided by the Rule of the Common Law Id. 50 but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts Ibid. The Judges of all the Courts of Common Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Refort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament need not be proclaim'd for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A Man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliam n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonourably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid Vide Several Precedent and Records that they poured out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her proceedings Parliaments evermore ran into ther Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly fastned on the Exchequer The Right of the Crown of England Stat. Prov. 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matters en Ley a trier vie del home a reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedier en tiel Case ceo est le proper Court Et tonts choses que ils font sont come Judgments Et si le Parliament mesme erre Finche's Nomotecnia l. 2. c. 1. f. 21. 22. come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try Men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament Sir Robert Cotton See Sir Robert Cot. Treatise of Parliaments p. 44 45 c in his Discourse of the Privilege and Practice of Parliaments says thus by Parliaments all the wholesom Fundamental Laws of this Land were and are Establish'd and Confirmed By Act of Parliament the Pope's Power and Supremacy in this Kingdom and the Romish Superstition and Idolatry were abrogated and abolished By Act of Parliament God's true Religion Worship and Service are or may be establish'd and maintain'd By Act of Parliament the two Universities of Oxford and Cambridge with other Cities and Towns have had many Privileges and Immunities granted em By Parliament one Pierce Gaveston a great Favourite and Misleader of King Ed. 2. was remov'd and Banished and afterwards by the Lords Executed Also by Parliament the Spencer's Favourites and Misguiders of the same King were Condemned c. and so was Delapool in H. 6. Time and others since By Parliament Empson and Dudley two notable Polers of the Common-wealth by exacting Penal Laws on the Subjects were Discover'd and afterwards Executed By Parliament the Damnable Gunpowder Treason hatch'd in Hell is recorded to be had in Eternal Infamy By Parliament one Sir Giles Mompesson a Caterpiller and Poler of the Common-wealth by exacting upon In-holders c. was discover'd degraded and Banished by Proclamation By Parliament Sir Francis Bacon Note the Censure on the late E. of Macclesfield Quere made by K. James 1. Baron of Verulam Viscount of St. Albans and Lord Chancellor of England was for Bribery c. discover'd and displac'd By Parliament Sir John Bennet one of the Judges of the Prerogative Court being Pernitious to the Common-wealth in his Place was discover'd and displac'd By Parliament Lyonel Cranfield sometime a Merchant of London and made by K. James 1. Earl of Middlesex and Lord Treasurer of England being hurfull in his Place to the Common-wealth was discover'd and displaced By Parliament Note Sir Francis Mitchell a jolly Middlesex Justice of Peace in the Suburbs of London another Canker-worm of the Common-wealth by Corruption in exacting an Execution of the Laws upon poor Alchouse-keepers Victuallers c. was discover'd and degraded from his Knighthood and
Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment Id. 71. for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be Sworn to say their Verdict but they shall give their Verdict upon their Honour and are not charged but upon their Honours And 6 Maij 1628. Sir Wm. Jones's Rep. 154 155. It was ordered on the Question Nem. Dissen That the Nobility of this Kingdom and Lords of the upper House of Parliament are of antient Right to Answer in all Courts as Defendants upon Protestation of Honour only and not upon the common Oath An order of the House of Lords was in 1640. Cursus Cancel 112. That the Nobility of this Kingdom and Lords of the upper House of Parliament and the Widows and Dowagers of the Temporal Lords shall Answer in Chancery c. upon Protestation of Honour only but altho their Honour may bind their Conscience in Equity yet Evidence upon their Honour ought not to be admitted in any Court of Law And we must here Note That even Lords of Parliament or Peers of the Realm in giving Evidence to a Jury or in their Depositions in Chancery c. are to be Examined on Oath A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lyc against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statue Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. he ought to appear in his proper Person and not by Attorney unless he has a special Writ of Chancery De attornato faciendo CHAP. V. The Power of the House of Lords A Peer of the Realm being Indicted of Treason or Felony 4 Inst 23. or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Vide a Letter sent by nine Lords Rush Col. 3. Stat. vol. 1. f. 737. Ant. 42. to the Parliament June 4 1642 who had gone from their House and repaired to the King at York wherein they say We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanour whatsoever no Peer is to Answer to the first Charge but in his Place in his own Person and not upon the first Charge to come to the Barr. In 1553. primo Mariae Burn. His Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords who sent it down to the Commons to be reformed in two Provisoes that were not according to former Precedents How far this was contrary to the Rights of the Commons who now say that the Lords cannot alter a Bill of Money I am not able to determine Die Mercurij 25 Novembris 1692. It is Resolved upon the Question by the Lords Spiritual and Temporal that for the future when there shall be a Devision in the House upon any Question the Contents shall goe below the Barr and the Not Contents stay within the Barr And it is Ordered that this Resolution be added to the Roll of standing Orders of this House Die Lune 7. Decembris 1691. It is Ordered by the Lords Spiritual and Temporal in Parliament Assembled that for the future upon giving Judgment in any Cases of Appeals or Writs of Error in this House the Question shall be put for Reversing and not for Affirming And that this be added to the Roll of standing Orders 30. Jan. 1640. Rush Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House touching the Power of conveying away of Honour it was Nemine contradicente Resolved upon the Question that no Person that hath any Honour in him as a Peer of this Realm may alien and transfer the same to any other Person See Sir B. Shower's Cases in Parliament 1.2 c. See many notable Judgments by the Lords at the Prosecution of the Commons Rush Col. passim Nalson and in later Times Error serra sue in Parliament Vid. Crom. 18. Error Vid. infra Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take a Recognizance If a Judgment be given in the King's Bench 4. Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Jusstitia let Justice be done have a Writ of Error directed to the Chief Justice of the King's Bench for removing of the Record in praesens Parliamentum c. And hence it may be presum'd that Writs of Error in Parliament were originally Returnable before the Commons as well as the Lords See Yelverton's Rights of the Commons and Hales of Parliaments p. 18. to 23. When one sueth in Parliament to Reverse a Judgment in the King's Bench he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias Id. 22. The Proceeding upon the Writ of Error is only before the Lords in the Upper House Secundum Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ or Error Resolved 2 Nalson 716. 'twas decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363 or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. 2 Nalson 625. Resolved by the House Nemine contradicente that it belongs to the House of Peers by the antient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12. 1641. 2. Nalson 381. An order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27.28 and Sir Fracis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature
subscribing them England to be entred and filed in Parchment Rolls provided by the Clerk of the House and each Member to pay only 12 d. for every such Entry That the said Act 30 Car. 2. Stat. 1 W. M. c. 1. Members of the House of Commons qualified to sit and vote by taking the Oaths of Allegiance and Supremacy appionted by this Act instead of the old ones now repealed and by subscribing the Test according to the Limitations c. of the preceding Statute 30 Car. 2 and all other Acts of Parliament as to so much of the said Act or Acts only as concerns the taking the Oaths of Supremacy and Allegiance or either of them in the said Acts respectively mentioned by any Member or Members of the House with relation to their sitting and voting in Parliament are hereby repealed to all Intents and Purposes any Thing in the said recited Act or Acts to the contrary And In all future Parliaments the Oaths in this Act mentioned and the Declaration in the Act 30 Car. 2. mentioned shall be taken made subscribed and repeated by every Member of the House within the Time and in the same Manner and Form and under the Penalties and Disabilities as the said Oaths of Allegiance and Supremacy and the said Declaration by the said Act of Car. 2. are limited ordained and appointed and not at any other Time England or in any other Manner to enable them to sit and vote in Parliament any Thing in the said Act or Acts to the contrary That Elections of Members of Parliament ought to be Free Stat. 1 W. M. c. 2. The claim of Right That the Freedom of Speech and Debates on Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament Enacted accordingly That no Member of the House of Commons shall at any Time be concerned directly or indirectly Sta. 5 6 W. M. ch 7. Members of the House of Commons to be no ways concerned in Duties or Aids to be granted by Parliament except Commissioners of the Treasury Customs Excise and Land Tax or any other in Trust for him in the farming collecting or managing any of the Duties or other Aids that hereafter shall be granted by Act of Parliament except the Commissioners of the Treasury and the Officers and Commissioners for managing the Customs and Excise not exceeding the present Number in each Office and Commissioners of the Land Tax Quere the Novelty of this Exception That any Member or Members of the House of Commons Stat. 5 6 W. and M. c. 20. Members of the House of Commons may be Members of the Bank may be a Member or Members of the Corporation of the Governor and Company of the Bank of England England That o Collector Supervisor Gauger or other Officer or Person whatsoever concerned or imployed in the charging levying or managing the Duties of Excise or any Branch or Part thereof shall by Word Officers of the Excise not to intermedle c. Message or Writing or in any other Manner endeavour to persuade any Elector to give or dissuade any Elector from giving his Vote for the Choice of any Person to be a Knight of the Shire Citizen Burgess or Baron of any County City Borough or Cinque-Port and every Officer or other Person offending therein shall forfeit the Sum of 100 l. one Moiety thereof to the Informer the other Moiety to the Poor of the Parish where such Offence shall be committed to be recovered by any Person that shall sue for the same by Action of Debt Bill Plaint or Information in any of their Majesties Courts of Record at Westminster in which no Essoign Protection Privilege or more than one Imparlance shall be allowed and every Person convict on Suit of the said Offence shall be for ever incapacitated to bear any Office or Place of Trust under the Crown That no Persons hereafter to be elected to serve in Parliament for any County City Town England Borough St. 7. W. 3. c. 4. No Persons to be elected after the Teste of the Writ shall by themselves or any other at their charge before the Election give promise or oblige themselves to give any thing to any Person having a Vote in particular or to any County or Place in general in order to be elected Port or Place within the Kingdom of England Dominion of Wales or Town of Berwick upon Tweed after the Teste of the Writ of Summons or after the Teste or issuing out or ordering of the Writ or Writs of Election upon the calling or summoning of any Parliament or after any such Place becomes vacant shall or do hereafter by himself or themselves or by any other Ways or Means on his or their Behalf or at his or their Charge before his or their Election in England Wales or Berwick directly or indirectly give present or allow to any Person having Voice or Vote in such Election any Money Meat Drink Entertainment or Provision or make any Present Gift Reward or Entertainment or shall make any Promise Agreement Obligation or Engagement to give or allow any Money Meat Drink Provision Present Reward or Entertainment to or for any such Person in Particular or to any such County City Town Borough Port or Place in general or to or for the Use Advantage Benefit Imployment Profit or Preferment of any such Person or Place in Order to be elected England or for being elected to serve in Parliament for such County City Town Borough Port or Place And that every Person so giving presenting or allowing Such Persons so giving promising c. disabled to serve as never elected or returned making promising or engaging doing acting or proceeding shall be and are hereby disabled and incapacitated upon such Election to serve in Parliament for such County City Town Borough Port or Place and shall be deemed and taken no Member in Parliament and shall not act sit or have any Vote or Place in Parliament but shall be and are to all Intents Constructions and Purposes as if they had been never returned or elected c. That all false Returns willfully made of any Knight of the Shire Stat. 7 and S. W. 3. c. 7. continued by St. 12. 13. W. 3. c. 5. False Returns of Knights Citizens c. illegal and prohibited Citizen Burgess Baron of the Cinque-Ports or other Member to serve in Parliament are against Law and are hereby prohibited The Party grieved by any false return An Action given to any duly elected against the Officer and Procurer of a false Return or Return contrary to the last determination of the Kight of Election in any Court at Westminster with double Damages and full Costs and contrary to the last Determination of the Right of Election of the House of Commons which is also adjudg'd a false Return to wit every Person that shall be duly Elected to Parliament for any County City Borough Cinque-Port or Place England by such false Return may Sue
the County of Southampton Candidates for the County of Southampton may demand of the Sheriff after the end of the Poll at Winchester an Adjournmens to Newport in the Isle of Wâ—ight or his Deputy at the request of one or more of the Candidates for Election of a Knight or Knights for that County shall adjourn the Poll from Winchester after every Freeholder then and there present is Polled England to Newport in the Isle of Wight for the Ease of the Inhabitants of the said Island any thing in this Act contained to the contrary No Person which shall refuse to take the Oaths of Allegiance and Supremacy St. 7 8 W. 3. c. 27. Candidates may require the Sheriff or Chief Officer on the Poll at any Election to administer the Oaths of Allegiance and Supremacy to Electors and if Quakers the Declaration of Fidelity and on refusal not to admit them to Vote directed by an Act made in the First Year of His present Majesty and the late Queen Mary or being Quakers shall refuse to subscribe the Declaration of Fidelity directed by one other Act made in the said First Year of His present Majesty and the late Queen to be administred on the Poll by the Sheriff or Chief Officer at any Election at the Request of any one of the Candidates shall be admitted to give any Vote for the Election of any Knight of the Shire Citizen Burgess or Baron of the Cinque-Ports to serve in Parliament Enacted St. 11. 12. W. 3. c. 2. Members of the House of Commons while such by themselves Deputies or Trustees taking or executing any Office in the Excise or Appeals thereof declared incapable of sitting c c. That if any Member of the House of Commons during the time of his being a Member of Parliament by his Deputy or any other in trust for him or his benefit take enjoy or execute any Office Place or Imployment touching or concerning the farming managing or collecting the Duty of Excise or determing Appeals concerning the said Duty or comptrolling or Auditing the Accompts of the same such Person is hereby declared and enacted to be absolutely uncapable of siting voting or acting as a Member of the House of Commons in such Parliament That after the Limitation of the Crown to the Princess Sophia of Hanover St. 12 and 13 W. 3. c. 2. For the Limitation of the Crown to the House of Hanover by this Act shall take effect no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging although he be naturaliz'd or made a Denizen except such as are born of English Parents shall be capable to be a Member of the House of Commons Enacted Members of the House of Commons incapacitated from being Commissioners or Farmers of the Customs or to hold in their own or others Names or by others in trust or execute by Deputies any Office in the Customs c. That no Member of the House of Commons shall be capable of being a Commissioner or Farmer of the Customs or of holding or enjoying in his own Name or in the Name of any other Person in Trust for him or for his Use or Benefit or of Executing by himself or his Deputy any Office Place or Employment touching or concerning the Farming Collecting or Managing the Customs Vide ante of Officers of the Excise If any Member of the House of Commons shall Members while such so taking or executing any such Office declared incapable of sitting c. during the time of his being a Member of Parliament by himself or his Deputy or any other in Trust for him or for his Benefit take enjoy or execute any Office Place or Employment touching or concerning the Farming Managing or collecting the Customs such Person is hereby declared and enacted to be absolutely incapable of Sitting Voting or Acting as a Member in such Parliament Enacted St. 1â— 14 W. 3. c. 6. Members of the House of Commons not to vote or sit there during any Debate after their Speaker chosen until they have taken and subscribed the Abjuration between 9 and 4 in a full House c. That none which shall be a Member of the House of Commons shall Vote in the House of Commons or Sit there during any Debate in the said House of Commons after their Speaker is chosen until such Member shall from time to time take the Oath mentioned in this Act commonly called the Abjuration and altered by Statute 1 Annae ch 22. again by Stat. 4 5 Annae ch 8. again by Stat. 6 Annae ch 7. And subscribe the same in manner following that is to say the said Oath shall be in this and every other succeeding Parliament solemnly and publickly made and subscribed between the Hours of Nine in the Morning and Four in the Afternoon by every such Member of the House of Commons at the Table in the middle of the said House and whilst a full House is there duly Sitting with their Speaker in his Chair And If any Member shall presume to Vote Members voting not having so taken c. the said Oath adjudged Popish Recusants convict and forfeit as such and disabled to hold any Office or Place of Profit or Trust in England or its Dominions to sit or vote in Parliam bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and to forfeit 500 l. to any that will sue by Action of Debt c. where no Essoign c. shall lie not having taken the said Oath and subscribed the same as aforesaid he shall from thence be deemed and adjudged a Popish Recusant convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant convict and shall be disabled to hold or execute any Office or Place of Profit or Trust Civil or Military in England Ireland Wales or in any of the Islands or Plantations belonging and shall be disabled from thenceforth to sit or Vote in Parliament or to use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act 500 l. to be recovered and received by him or them that shall Sue by any Action of Debt Suit Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection or Wager of Law shall lie That no Register for the Registering Memorials of Deeds Stat. 2. 3 Annae c. 4. The Register for the West-Riding of York or his Deputy incapacitated Vide post p. 218. Conveyances and Wills within the West-Riding in the County of York or his Deputy for the Time being be capable of being chosen a Member to Parliament That no Person St. 4 5 Annae c. 8
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
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.
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
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
David was consecrated Bishop of Bangor by the then Archbishop of Canterbury but tis expresly said That he had been thereto elected A Principe Clero Populo Walliae i. e. by a Welch Parliament And in the same Reign one Gregory an Irish Abbot was elected to the Bishoprick of Dublin a Rege Hiberniae Clero Populo an Irish Parliament So that the Commons at this Time were a a constituent Part of the Scottish Welch and Irish Parliaments as well as with us in England And in the Year 1128 Vide Sax. Chro. sub An. 112. I find that fam'd Scholar Gilbertus Universalis to be elected and consecrated Bishop of London Annuente Clero Populo This seems at a Parliament at London But this Right of the Commons in electing Bishops does more clearly appear in H. the 2d's Time when all Historians agree it to be a general Custom both here and in France and seems founded on divers express Canons of the Primitive Church Insomuch as Mezeray in his History asserts That until that Time i. e. the Middle of the 12th Century The Voice of the People in electing Bishops was esteem'd the Voice of God The Successors of K. H. 1. K. Steven Mat. Par. 51. took their Coronation Oaths in a Form much more enlarged for the Ease of the Commons than those of King Henry 1. or his two Predecessors Thus K. Steven swore Coram Regni Magnatibus i. e. the Lords and Commons convoked at London Ad meliorationem Legum juxta voluntatem Arbitrium singulorum which must mean That he would reform the Laws according to their common Consent in Parliament and afterwards going to Oxford i. e. to hold his Parliament Ibi confirmavit Pacta quae Deo Populo in Die Coronationis suae concesserat This I take to be meant of Danegelt Hydage Cornage c See there some Particulars of his Oath whereof the 3d is Tallagia Quae autecessores ejus accipere consueverant in aeternum condonaret And in the following Year on the Arrival of Rob. Earl of Glocester Ibid. 51. this King was again sworn to observe the Good Laws of the Realm and thereof granted his Charter and see there the conditional Homage paid to the King by that Earl I might here pursue this Thread of Coronation Oaths in those of H. 2. R. 1. K. John Vide Ib. 42. in pede 51. and the Praef. to Privilegia Londini Rights of the Kingdom p. 88. c. but my Intention is not to trace the Practices of Kings in taking Coronation Oaths an unlucky Blot remains in History as to those Princes I have already named it being generally observed Impudenter fregerunt c. An Author who seems to be very conversant in Matters of this Nature and observes thus The King's Oath is to confirm the just Laws which the Commons not the Lords shall elect or choose in Latin Quas vulgus elegerit and in the old French Oaths of Edw. 2. and Edw. 3. tis Les quels la Communaute aux Eslue And in the English Oaths of H. 8. and other Princes See Sir R. Atkyns ut supra p 28 29. tis Which the Commons of the Realm shall choose And that the antient Writs for summoning the Commons are Nobiscum tractur consilium impensur de arduis Negotiis Regni And the same Author The King dom's Rights ut supra a little before says thus The Mirror as well as Tacitus shews how our Lords were originally raised out of and by the Commons and with Bracton Fleta c. gives them a judicial Power over the Rest c. Nay the Modus Parliamenti will not only tell us That the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Prelates c. For there was a Time wherein there was neither Bishop nor Earl and yet there were Parliaments without them but never without the Commons and concludes with the Impossibility of holding a Parliament without them thus Parliamentum sine Communitate tenebitur pro nullo quamvis omnes alii status plenarie ibidem intersuerint Lastly Sir R. Atkyn's Power of Parliament p. 32. The Freeholders of England had originally the Election of the Conservators of the Peace who are become out of Date by introducing Justices of Peace who have their Power not by any Election of the Freeholders as of Right they ought nor are they nominated by them but by the King and have their Power by his special Commission c. i. e. contrary to the common-Common-Law And how and by what Means and in what tempered Times this came about may be read in Lambards Eirenarcha Lambards Justice f. 16.19.20.147 c. It was done by Act of Parliament in the Beginning of K. Edw. the 3d's Reign and in his Minority when the Queen and Mortimer ruled all The Freeholders did also originally Sir R. Atkyns supra and from all Antiquity at their Folkmotes or County Courts chuse their Heretochii and what were these You may call them Lords Lieutenants Deputy Lieutenants or it may be Lieutenants Generals For the Saxon Laws tell you their Duty and Office LL. Ed. Conf. 35. Vide ante and that they were to be Ductores Exercitus c. All these great Officers were chosen by the Freeholders as our Knights of the Shires now are and as Conservators or Justices of Peace formerly were and as Coroners and Verdredors formerly Men of great Power still are by Writ at the County Courts These were mighty Powers and Freedoms Sir R. Atkyns supra See 4 Inst 174.558 and were enjoy'd by the People as antiently as any of our Records do reach which are more authentic Proofs of our Constitution than the Writings of Modern Historians c. And do best shew the native Freedom which the People had by the antient Constitution of our Government contrary to all the new Doctrines of our late Writers and prove That the Privileges and Freedoms we yet enjoy are not meer Emanations of Royal Favour as our Novellists would impose upon us CHAP. II. Of the Dignity and Excellency of Parliaments THE Parliament is the Foundation and Basis of Government Rushw Coll. 3d Part Vol. 1. fo 739 and consequently of the Peace and Happiness of the Kingdom as it creates the Law by which we are ruled and governed in Peace and Quietness so it preserves the Law in Power and Authority It watches over our Religion that it be not supplanted and exchanged by suppositious Innovations or the Truth and Substance of it eaten up with Formality vain Pomp and unnecessary Ceremonies It is the Conservative of the Rights and Liberties of the Subject and the Corrective of Injustice and Oppression which by equal Right is distributed to all and every Man hath that Benefit and Protection of Justice which is due to him It is that by which alone common Necessities can be provided for and Publick Fears prevented so that I may say not only the Peace and Happiness and well Being but the very
utterly disabled from being a Justice of Peace By Parliament Ib. p. 46. the Spanish Frauds were discovered and by an Act of Parliament the two Treaties i. e. touching the Spanish Match and for restoring the Palatinate both which had cost the King and his Subjects much Money and much Blood were Dissolved and Annihilated And we may remember says the same Author That that sage Councellor of State Sir William Cecil Lord Burley and Lord Treasurer of England was oft Times heard to say He knew not what a Parliament might not do which saying was approved by K. James 1. and is cited by him in one of his publick Speeches The Parliament says one is of an absolute and unlimited Power in all Things Temporal within this Nation Sir Robers Atkins's Argument p. 50. Bract. fo 34. Fleta p. 2. 17. Another says Parliamentum omnia potest Bracton and Fleta both affirm Rex habet Superiorem in Regno Scilicet Curiam suam i. e. Comites Barones doubtless the Lords and Commons qui apponuntur Regi ut si Rex sine Fraeno i. e. sine Lege fuerit Debent ei Fraenum apponere c. Nay some great Authors have asserted Quod Concilium hoc i. e. Parliamentum Facultatem habet Deponendi Regem Malum Substituendi Novum See Mat. Paris per Watts pag. 498. Knighton de Eventibus Angliae p. 2683. in the Decem. Scriptores and that this Power is claimed ex antiquo Statuto c. Knighton has a remarkable Passage concerning the Execution of that antient Statute in the Cases of E. II. and R. II. which at this Time I forbear to Transcribe or Translate Note It appears by Mat. Paris p. 99. c. That the Commons were then i. e. 15 H. II. summoned to the Parliament held at Clerkenwell and that they also were a Part of the Parliament in the Time of K. H. I. See before p. 34. 35. c. CHAP. IV. Of the House of Lords in general THE House of Peers Rushw eol vol. 3. part 1. p. 777. are the hereditary Counsellors of the King and Kingdom as the House of Commons are the representative Body of the whole Commons of the Kingdom There certainly cannot in the whole World be seen a more illustrious Court Nalson 566. than this high and honourable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes's Jour 11. Col. 1. till he be full One and twenty Years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty one Years at least A Bishop elect may sit in Parliament Ibid. ante 3 4 43 44. as a Lord thereof i. e. if called thereto by Writ Q. For he is not properly a Peer or even a Bishop till his Temporalties are granted to him If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in communi illo Consilio for the Good of his Country It lies in the Favour of the Prince Sir Simon d'Ewes Journal 2.4 Col. 2. to make Heirs of Earldoms Members of the upper House by summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Archbishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshal's Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward See the Statute No Man ought to sit in that high Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament Id. 44. without License it is an Offence done out of the Parliament and is finable by the Law 4 June 1642 Rushw Col. Vol. 3. part 1.737 Post upon an Order of the House of Lords to those Lords that had left the Parliament and repaired to the King at York requiring their Appearance as Delinquents in the Answer they returned to it there are these Words We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanors whatsoever no Peer is to answer to the first Charge but in his own Person and not upon the first Charge to come to the Bar. Any Lord of the Parliament 4 Inst 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601 Towns Col. 135. Vide Sir Simon d'Ewes Journal 605. agreed by the Lords That the antient Course of the House is That the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information Anno Domini 1626 Rushw Col. Vol. 1. p. 365. 2 Car. 1. resolved upon the Question by the whole House Nemine dissentiente That the Priviledge of this House is That no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprisoned or restrained without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace N. B. This was upon the King's having committed the Earl of Arundel to the Tower without expressing the Cause of his Commitment All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. a fortiori do appertain to all the Lords of the upper House for their Persons are not only free from Arrests during the Parliament but during their Lives Nevertheless the original Cause is by Reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the upper House when any Difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least Use of them save only to shew prove and continue the Right which the Lords of the upper House have both to be summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then always the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the antient Treatise Ibid. 6. Col. 1. Modus tenendi Parliamentum That if a Peer neither came to the Parliament nor sent
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
Service of Ambassage or else in Execution or visited with Sickness shall not in any wise be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected Nota Bene By the Claim of Right St. 1. W. M. Ses 2. c. 2. made on the Abdication of King James the 2d it was declared That all Elections of Members to Parliament ought to be free and twas enacted accordingly See the Statute and also the following Chapter CHAP. X. Who may be Electors ELectors are to attend to Elect Knights of the Shires Knights of the Shire St. 7. H. 4. c. 15. on Proclamation to be made at the next County Court after the Delivery of the Writ to the Sheriff and to proceed to in the Election freely and indifferently notwithstanding any Command to the contrary Electors of such Knights Ibid. St 8. H 6 c. 7 after the Election to seal an Indenture containing the manner of the Persons chosen which is to be annexed to the Writ and be the Sheriffs Return and none to Elect who cannot Expend 40 s. by the Year Electors of Knights of the Shires St. 1 H. 5. c. 1. 8. H. 6. c. 7. 10. H. 6. c. 2. to be only of such Persons as are resiant and dwelling within the said Shire at the Date of the Writ No Person shall be an Elector of the Knights for the Parliament St. 8. H. 6. c. 7. 10. H. 6. c 1 33. H. 8 c. 1. in Ireland except he hath Freehold Lands or Tenements within the same County to the value of Forty Shillings per Annum at the least above all Charges The Sheriff hath Power given him by the said Statute to examine upon Oath every such Chooser how much he may expend by the Year Crompt Jurisdict 3. if he doubt the value of it Every Freeholder electing such Knights to be Sworn before admitted to Poll if so required by any Candidate St. 7.8 W. 3 c. 25. St. 10. A. c. 23. The Free-holder's Oath See the Candidate's Oath c. 10 and the Oaths of Allegiance and Supremacy c. post and this Oath altered 10 Annae infra or other Person that hath Right to Elect. Note the said Oath by Sta. 10 Annae is thus You shall Swear that you are a Freeholder within the County of and have Freehold Lands or Hereditaments lying or being at in the County of of the yearly value of 40 s. above all Charges payable out of the same and that such Freehold Estate hath not been made or granted to you fraudulently on purpose to qualifie you to give your Vote and that the Place of your Aboad is at in the County and that you have not Polled before at this Election So help you God Trustees or Mortgagees St. 7.8 W. 3. c. 25. are not to be Electors unless in Possession or Receive the Rents of the Estate but the Mortgagor or Person to whose use the Trust is may Conveyances of Houses Lands Ibid. c. in Parcels to several Persons in order to multiply Votes to be Void and no more than one Vote admitted for one Tenement nor any to be an Elector under 21 Years That Persons refusing the Oaths St. 7.8 W. 3. c. 27. that or being Quakers subscribing the Declaration of Fidelity not to be admitted to Vote c. That all collusive Estates and Conveyances made to qualify Electors for Knights of the Shire i. e. Subject to a conditional Determination St. 10. A. c. 23. or Reconveyance c. shall be taken and held as Free and Absolute against the Grantor and all Bonds Convenants c. for Restoring or Reconveying thereof are declared Null and Void and the Maker Adviser and Voter shall each every of them forfeit 40 l. with full Costs to any that will Sue in any Court at Westminster and no Essoign c. Also none to Vote for such Knights in right of any Lands not assessed to the publick Taxes Church Rates and Parish Duties in proportion to other Lands of 40 s. per Annum in the same Parish and for which he shall not be entitled to 40 s. Rent before the Election unless it come to him by Descent And Voting otherwise forfeits 40 l. one Moiety to the Poor where the Lands lye and the other to the Prosecutor And note This Act repeals only so much of the Statue 7 W. 3. as concerns the Oath to administred to Freeholders and therefore this Statute further Enacts That if any Quaker during the continuance of an Act passed 7 W. 3. That the Solemn Affirmation and Declaration of the People called Quakers St 10. A. c. 23. Quaker's Affirmation shall be accepted instead of an Oath c. shall on such Election if required by any Candidate Declare the Effect of the said Oath on his solemn Affirmation as directed by that Act the Sheriff c. is required to accept the same instead of the said Oath But if such Quaker shall be after Convicted to have Wilfully Falsly If false guilty of Perjury vid. infra and Corruptly Affirmed or Declared he is to incurr the same Penalties and Forfeitures as Persons Convicted of Wilful and corrupt Perjury Vide infra That the said Act 10 Annae St. 12. A. Sess 1. c. Rents Tythes Incorporeal Inheritances Chambers in Inns of Court or Chancery c. shall not Extend to Restrain any Person from Voting in Right of any Rents Tythes or other incorporeal Inheritances or any Messuages or Lands in Extraparochial Places or any Chambers in the Inns of Court or Inns of Chancery or to any Messuages or Seats belonging to any Offices or in Right of any other Messuages or Lands that have not been usually Charged and Assessed to all and every the publick Taxes Church Rates and Parish Duties Proviso Provided such Messuages or Lands have been usually Charged or Assessed to some one or more of the said publick Taxes or Duties in such Proportion as other Messuages or Lands of 40 s. per Annum within the same Parish or Township are usually Charged Note St. 10. A c. 23. The Form of the Freeholders Oath required by the 7 8 W. 3. was abolished by this Statute and the following Form Substituted viz. You shall Swear or being a Quaker Freeholder's Oath you shall in the presence of Almighty God Declare that you are a Freeholder in the County of and have Freehold Lands or Hereditaments lying or being at in the County of of the yearly value of 40 s. above all Charges payable out of the same And that such Freehold Estate hath not been made or granted to you Fraudulently on purpose to qualifie you to give your Vote and that the Place of your Aboad is at in the County of And that you have not been Polled before at this Election The Form of the Oath to be taken by Freeholders c. on an Objection made by Statute 12 Annae viz. I. A. B. Doe in the presence of God Swear Freeholder's Oath by St. 12. Ann.
Person or Persons so Infeost to Vote at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for the Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained to any Elector and the said Praeses is hereby impowered and required to administer the same In case such Elector refuse to Swear and also to subscribe the said Oath such Person or Persons shall not be capable of Voting at such Election Notwithstanding such Oath taken it shall be lawful to make such other Objections as are allowed by the Laws of Scotland against such Electors No Infeoffment taken upon any redeemable Right except proper Wadsetts Adjudications or Apprisings allowed by the Act of Parliament relateing to Elections in One thousand six hundred eighty one shall entitle the Persons so Infeoft to Vote at any Election in any Shire or Stewartry And no Person or Persons who have not been Enrolled and Voted at former Elections shall upon any Pretence whatsoever be Enrolled or admitted to Vote at any Election Scotland except he or they first produce a sufficient Right or Title to qualifie him or them to Vote at that Election to the satisfaction of the Freeholders formerly Enrolled or the Majority of them present and the returning Officers are hereby ordained to make their Returns of the Persons Elected by the Majority of the Freeholders enrolled and those admitted by them reserving always the Liberty of objecting against the Persons admitted to or excluded from the Roll as formerl The Right of Apparent Heirs in Voting at Elections by Virtue of their Predecessors Infeoffments and of Husbands by Virtue of their Wives Infeoffments reserved Any Conveyance or Right which by the Laws of Scotland is sufficient to qualify any Person to Vote in the Elections of Members of Parliament for Shires or Stewartries and whereupon Infeoffment is taken on or before the first Day of June in the Year of our Lord One thousand seven hundred and thirteen shall intitle the Person or Persons so Infeoft to Vote at the Elections of Members to serve in the next ensuing Parliament No Husband shall Vote at any ensuing Election by Virtue of their Wives Infeoffments Wales who are not Heiresses or have not Right to the Property of the Lands on account whereof such Vote shall be Claimed Ordained St. 23. H. 6. c. 15. Vide post c. That every Sheriff after the Delivery of any Writ of Election to him made shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff c. of the Cities and Boroughs within his County commanding them by his Precept if it be a City to choose by Citizens of the same City Citizens and in the same manner and form if it be a Borough to choose a Burgess by the Burgesses of the same to come to the Parliament Enacted St. 23 H. 8. c. 26. Wales c. That the Dominion of Wales shall be stand and continue for ever from henceforth Incorporated United and Annexed to and with the Realm of England and that all and singular Person and Persons born and to be born in the said Principality Country or Dominion of Wales shall have enjoy and inherit all and singular Freedoms Liberties Rights Privileges and Laws within this Realm and other the King's Dominions as other the King's Subjects naturally Born within the same have enjoy and inherit For all Parliaments to be holden and kept for this Realm Wales two Knights to be elected to the same Parliament for the Shire of Monmouth in the like Manner Form and Order as Knights and Burgesses be elected and chosen in all other Shires And that one Knight shall be Elect-for every of the Shires of Brecknock Radnor Montgomery and Denbigh and for every other Shire within Wales and for every Borough being a Shire-Town within Wales except the Shire Town of the County of Merioneth one Burgess and the Election to be in like Manner as Knights and Burgesses of the Parliament be Elected in other Shires That the Burgesses of all and every Cities Boroughs St. 35. H. 8 c. 11. and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire-Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing of the said Burgesses at such Time and Place Lawful and Reasonable as shall be assigned for the same intent by the said Mayors Chester Bailiffs and other Head Officers of the said Shire-Towns or by one of them in which Elections the Burgesses shall have the like Voice and Authority to elect the Burgesses of every the said Shire-Towns in such Manner as the Burgesses of the said Shire-Towns have and use That the County Palatine of Chester shall have two Knights for the said County Palatine St. 34 35 H. 8. c. 13. Chester and likewise two Citizens to be Burgesses for the City of Chester the same Election to be made under like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County or City within this Realm That the County Palatine of Durham may have two Knights for the same County St. 25. c. 2. c. 9. Durham and the City of Durham two Citizens to be Burgesses for the same City for ever hereafter to serve in Parliament the same Election from time to time to be made in Manner following viz. The Elections of the Knights to serve for the said County Palatine to be made by the greater Number of the Freeholders of the said County Palatine that shall be present at such Elections as is used in other Counties and that the Election of the said Burgesses from Time to Time Vid. Post 190.191 shall be made by the Major part of the Mayor Aldermen and Freemen of the City which shall be present at such Election See also the Stat. 34 35 H. 8. c. 24. Cambridge concerning the Payment of the Wages of the Knights of the Shire for Cambridge The Form of the Abjuration as altered by Stat. 4 Ann. c. 8. and as the same is now to be taken I A. B. do truly and sincerely acknowledge profess testify and declare in my Conscience before God and the World That our Sovereign Lord King George the Second is lawful and rightful King of this Realm and all other His Majesty's Dominions and Countries thereunto belonging And I do solemnly and sincerely declare That I do believe in my Conscience that the Person pretended to be Prince of Wales during the Life of the late King James and since his Decease pretending to be and taking upon himself the Stile and Title of King of England by the Name
Burgesses of the said High Court have had used c. Vide ante 176. That every Person which hereafter shall be elected a Knight Stat. 5. Eliz. c. 1. Knights Citizens c. before their sitting in Parliament to take the Oath of Supremacy before the Lord Steward or his Deputies and for the contrary to lose their Memberships and incur such Penalties as if they had sat without Election Return c. Citizen or Burgess or Baron for any of the Five Ports for any Parliament or Parliaments hereafter to be holden shall before he enter the Parliament House or have any Voice there openly receive and pronounce the Oath The Oath of Supremacy mentioned in this Act is abrogated by the Stat. 1 W. M. ch 1. and a new one appointed which see ante p. 177. expressed in the Stat. 1 Eliz. ch 1. England commonly called the Oath of Supremacy before the Lord Steward of the Queen's Houshold or his Deputy or Deputies for that Time to be appointed and that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all Intents Constructions and Purposes as if he had never been returned nor elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such Pains and Penalties as if he had presumed to sit in the same without Election Return or Authority That all and every the Knights Citizens Stat. 7. Jac 1. c. 6. Knights Citizens c. at any Parliament or Sessions to take the Oath of Allegiance before the Lord Steward c. ere they be permitted to sit Burgesses and Barons of the Five Ports of the Commons House of Parliament at any Parliament or Session of Parliament before he or they shall be permitted to enter into the said House shall make take and receive the Oath of Obedience mentioned in the Statute of 3 Jac. 1. ch 4. commonly called the Oath of Allegiance The Oath of Allegiance mentioned in this Act is abrogated by the Stat. of 1 W. M. c. 1. as aforesaid post 198. before the Lord Steward of the King's Houshold his Deputy or Deputies That none which shall be a Member of the House of Commons England shall vote in the said House St. 30 C. 2. c. 1. Members of the House of Commons shall not vote or sit there during any Debate after their Speaker chosen until they have taken the Oaths of Allegiance and Supremacy and subscribed the Test between Hours of 9 and 4 in a full House or sit there during any Debate in the said House after their Speaker is chosen until such Member shall first take the several These Oaths are abrogated by Stat. 1 W. M. c. 1. Oaths of Allegiance and Supremacy and make subscribe and audibly repeat the Declaration in this Act contained commonly called the Test which said Oaths and Declaration shall be in this and every succeeding Parliament solemnly and publickly made and subscribed betwixt the Hours of Nine in the Morning and Four in the Afternoon by every such Member at the Table in the Middle of the said House and whilst a full House of House is there duly sitting with their Speaker in his Chair and that the same be done in the House in such-like Order or Method as the House is called over by If any Member of the House of Commons shall presume to do any thing contrary to this Act Members acting contrary shall be adjudged Popish Recusants convict and suffer as such and be disabled to hold any Office or Place of Profit or Trust in England or is Dominions to sit or vote in Parlia ment bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gâ—â— and forfeit 500 l for every Offence to any that will sue by Action of Debt c. where no Essoign c. every Member so offending shall from thenceforth be deemed and adjudged a Popish Recusant Convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant Convict and shall be disabled to hold or execute any Office or Place of Profit or Trust England Civil or Military in any of His Majesty's Realms of England or Ireland Dominion of Wales or Town of Berwick upon Tweed or in any of His Majesty's Realms Islands or Foreign Plantations to the said Realms belonging and shall be disabled to sit or vote in Parliament or to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act the Sum of 500 l. to be recovered or received by him or them that will sue for the same and to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesty's Courts at Westminster where no Essoign Protection or Wager of Law shall lie It shall be lawful to and for the House of Commons as often as they shall see Occasion Members obliged to take the said Oaths and subscribe the Test in the House as often as the House shall think fit and Members acting contrary and presuming to sit incapacitated during that Parliament to order or cause all or any of the Members of Parliament openly in their House to take the said Oaths England and to make and subscribe the said Declaration at such Times and in such Manner as they shall appoint And if any Member of the House of Commons shall contrary to such Order made by their House wilfully presume to sit therein without taking the said Oaths and making and subscribing the said Declaration every such Member so presuming to sit shall be adjudged and is declared to be uncapable and disabled in Law to all Intents and Purposes to sit in the said House or give any Voice therein during that Parliament And in Case any Member of the House Such Members Election declared void and the Speaker by Order of the House to issue his Warrant for a new Election shall by virtue of this Act be disabled to sit or vote in the House then without any further Conviction or other Proceedings against such Member the Place for which he was elected is hereby declared void and a new Writ shall issue out of Chancery by Warrant from the Speaker and by Order of the said House for the Election of a new Member in the Place of such Member so disabled to all Intents and Purposes as if such Member or Members were naturally dead c. During the taking the Oaths and subscribing the Test all other Proceedings in Parliament to cease and the Oath Declaration and Subscription with a Schedule of the Names of the Persons taking and
and Time to Time without any further or other Adjournment without the Consent of the Candidates until all the Free-holders then and there present shall be polled England Every Sheriff Under-Sheriff Mayor Sheriffs Mayors c. to deliver to any Person desiring it a Copy of the Poll paying reasonably for writing it Sheriffs Mayors c. for every wilful Offence contrary to this Act forfeits to each Party grieved 500 l. to be recovered by him his Executors c. with full Costs by Action of Debt c wherein Essoign c. to be allowed Bailiff and other Officer to whom the Execution of any Writ or Precept shall belong for the electing Members to serve in Parliament shall forthwith deliver to such Person or Persons as shall desire the same a Copy of the Poll taken at such Election paying only a reasonable Charge for writing the same and every Sheriff Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for electing of Members doth belong for every wilful Offence contrary to this Act shall forseit to every Party so aggrieved the Sum of five hundred Pounds to be recovered by him or them his or their Executors or Administrators together with full Costs for which he or they may sue by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection Wager of Law Privilege or Imparlance shall be allowed Every Return of any Person under the Age of twenty one Years The Return of any Person chosen under 21 Years void is hereby declared to be null and void All County Courts for the County of York or any other County Courts England which heretosore used to be held on a Monday County Courts for Yorkshire and others used to be held on a Menday to be called and held on a Wednesday shall be called and begun upon a Wednesday and not otherwise any Custom or Usage to the contrary The Sheriff of the County of Southampton Sheriff c. of Hampshire at the Request of any Candidate to adjourn after the End of the Poll at Winchester to Newgate in the Isle of Wight or his Deputy at the Request of one or more of the Candidates for Election of a Knight or Knights of that County shall adjourn the Poll from Winchester after every Frecholder then and there present is polled to Newport in the Isle of Wight for the Ease of the Inhabitants of the said Island any thing in this Act to the contrary That no Person which shall refuse to take the Oaths of Allegiance and Supremacy directed by an Act made in the first Year of His present Majesty and the late Queen Mary St. 7 8. W. 3. c. 27. Sheriffs c. on the Poll at any Election to administer the Oaths of Allegiance and Supremacy to Electors and if Quakers the Declaration of Fidelity at the Request of any Candidate and on Refusal not to admit them to vote or being Quakers shall refuse to subscribe the Declaration of Fidelity directed by one other Act of Parliament made in the said first Year of the Reign of His present Majesty and the late Queen which Oaths and Subscription respectively the Sheriff or chief Officer taking the Poll England at the Request of any one of the Candidates are required to administer shall not be admitted to give any Vote for the Election of any Knight of the Shire Citizen Burgess or Baron of the Cinque-Ports to serve in Parliament That the Sheriff or other Officer having the Execution and Return of any Writ to Parliament St. 10 11 W. 3. c. 7. Sheriffs c. by themselves or Deputies on or before the Day any Parliament shall called to meet and not exceeding fourteen Days after any Election made to make his Return to the Clerk of the Crown c. shall on or before the Day that any suture Parliament shall be called to meet and with all convenient Expedition not exceeding fourteen Days after any Election made by virtue of any new Writ either in Person or by his Deputy make Returns of the same to the Clerk of the Crown in Chancery to be by him filed c. and pay to the Clerk of the Crown 4 s. for every Knight of the Shire and 2 s. for every Citizen Burgess c. which the Sheriff c. shall charge to the King and have allowed upon his Account See the Stat. c. 7 8. W. c. 25. p. 107. The proper Officer of the Cinque-Ports shall be allowed six Days from the Receipt of such Writ for the Delivery very of the Precept according to the Purport of the Act 7 and 8 W. III. G. Britain c. 25. any thing in the said Act or any other Law Statute or Usage to the contrary Every Sheriff or other Officer aforesaid who shall not make the Returns according to the true Intent and Meaning of this Act Sheriffs c. not making Returns accordingly to forfeit for each Offence 500 l. one Moiety to the King the other to him that will sue by Action of Debt c. wherein no Essoign c. to be allowed and but one Imparlance shall forfeit for every such Offence the Sum of 500 l. one Moiety to His Majesty and the other Moiety to him or them that will sue for the same to be recovered by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection or Wager of Law allowed nor more than one Imparlance That when any Parliament shall hereafter be summoned or called St. 6. Annae c. 6. Writs to issue to the respective Sheriffs or Stewarts for choosing the 45 Representatives of Scotland to Parliament Sheriffs c. thereon forthwith to give Notice of the Time of Election for the Shires Clerks of the Meetings forthwith to return the Names of the elected to the Sheriff who is to annex and return it with his Writ the Forty five Representatives of Scotland in the House of Commons in the Parliament of Great Britain shall be elected and chosen by Authority of the Queen's Writs under the great Seal of Great Britain directed to the several Sheriffs and Stewarts of the respective Shires and Stewartries and the said several Sheriffs and Stewarts shall on Receipt of such Writs forthwith give notice of the Time of Election for the Knights or Commissioners for their respective Shires or Stewartries G. Britain And the Clerks of the said Meetings immediately after the said Elections are over shall respectively return the Names of the Persons elected to the Sheriff or Stewart of the Shire or Stewartry who shall annex it to his Writ and return it with the same into the Court out of which the Writ is issued And as to the Manner of Election of the fifteen Representatives of the Royal Boroughs Sheriff of Edinburgh on Receipt of his Writ forthwith to direct his Precept to the Lord Provost for electing the Burgess for that City Common Clerk of Edinburgh to certify the
and every the Sheriffs Mayors G. Britain Bailiffs and other Officers The Act to be read by the Sheriff c. after reading the Writ to whom the Execution of any Writ or Precept for electing any Members belongs shall at the Time of such Election immediately after the Reading of such Writ or Precept read or cause to be read openly before the Electors there assembled this present Act and every Clause therein contained and the same shall also openly be Read once in every Year at the General Quarter Sessions of the Peace after Easter and at the Quarter Sessions after Easter and on electing Magistrates c. for any County or City and at every Election of the chief Magistrate in any Borough Town Corporate or Cinque-Port and at the annual Election of Magistrates and Town Counsellors for every Borough in Scotland That every Sheriff Under-Sheriff Wilful Offence forfeits 50 l. Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for the electing of Members doth belong for every wilful Offence contrary to this Act shall forseit 50 l. to be recovered with full Costs as before directed Provided Prosecution to commence within two Years That no Person shall be made liable to any Incapacity Disability Forfeiture or Penalty by this Act unless Prosecution be commenced within two Years after such Incapacity c. incurred or in Case of a Prosecution the same be carried on without wilful Delay any Thing herein to the contrary After a Recital of the St. 7.8 St. 6. G. 11. c. 23. W. 3. and the Inconveniencies of County Courts being adjourned to Mondays Fridays or Saturdays it enacts That no County Court in England shall be adjourn'd to a Monday Friday or Saturday and all Adjournments and Acts done at such Courts so adjourn'd to be null and void any Law Custom or Usage to the contrary Provided That any County Court begun holden on or adjourned to any Day not prohibited by this or the said former Act for electing any Knight of the Shire for any County or for hearing and determining Causes or for such other Matters and Business as are usually transacted at County Courts may be adjourned over from Day to Day tho' the same may happen to be on a Monday Friday or Saturday until such Election or other Matters be fully finished any thing therein to the contrary c. CHAP. XIII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited to the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. See Bohun's Coll. 352. contra the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expence of Time and Contestation the Use is as in the Conge d'Eslier of a Bishop that the King doth name a discret and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker Id. 8. and choose another So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed So March 14. 1694. Sir John Trevor The first Day each Member is called by his Name Modus tenend Pal. 35. every one answering for what Place be serveth That done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell 14 Eliz. See Bohun's Coll. 352 353. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edward Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneague Finch 1 Car. 1. cum multis aliis The Speaker ought to be religious Towns Coll. 1.4 honest grave wise faithful and Secret These Virtues must concur in one Person able to supply that Place The long Use hath made it so material Elsyng 154 that without the King's Commandment or Leave they cannot choose their Speaker Sed aliter ab Antiquo Surely the Election of the Speaker was antiently free to the Commons Id. 155. to choose whom they would of their own House which appears in this that the King never rejected any whom they made Choice of Vide contra Sir Simon d'Ewes Journ 42. Col. 1. where he saith That 28 Hen. 6. Sir John Popham was discharg'd by the King i. e. on his excuse and thereupon the Commons chose and presented William Tresham Esq who made no Excuse See the like of Paul Foley in Bohun's Collection 353. The Cause of Summons being declared by the King or Chancellor Elsing 151 Cook 12 115. Smyth's Common-wealth 79. the Lord Chancellor confers first with his Majesty and then in his Name commands the Commons to assemble in their House and to choose one of their Members to be their Speaker and to present him to his Majesty on a Day certain Upon which the Commons shall presently assemble themselves in the Lower House Co. 12.115 and he is to be a Member of their Parliament The Commons being thereupon assembled in their House Elsyng 152 Vid. Town Coll. 174. See Bohun ut Supra one of the Commons puts the rest in mind of their Charge given in the Upper House touching the choosing of a Speaker and then doth of himself commend one unto them and desires their Opinions to be signified by their Affirmative or Negative Voices and if any Man stand up and speak against him so named alledging some Reason he ought to name another Some Person when the generality of Members are come Scobel 3. Vid. Town 174. Vide Sir S. d'Ewe's Jour passim and sit doth put the House in mind that for their better proceeding in the weighty Affairs they are come about their first Work is to appoint a Speaker and re-commends to the House some Person of Fitness and Ability for the Service and Dignity which usually hath been one of the long Robe If more than one Person be named for Speaker Scobel 3. and it be doubtful who is more generally chosen sometime one of the Members standing in his Place doth by Direction or Leave of the House put a Question for determining the same or the Clerk at the Board So it was in the first Session 1 Jac. 1. Scobel 4. when Sir Edward Philips the King's Serjeant at Law was first named by Mr. Secretary Herbert as fit for that Place and the Names of others were mention'd but the more general Voice run upon Sir Edward Philips and a Question being put he was by general Acclamation chosen Speaker When the Speaker
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
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
be made of a Knight of a Shire within England St. 10. An. ch 23. Sheriff c. to swear each Freeholder if by any Candidate or Voter required Sheriff c. shall enter the Place of the Elector's Freehold of his Abode and Jurat against the Name of every Voter sworn and with in twenty Days after the Elections deliver the Poll-Books upon Oath to he Clerk of the Peace c. every Free-holder before he is admitted to Poll shall if required by the Candidates or any of them or any other Person having a Right to Vote first take the Oath in this Act contained which Oath the Sheriff c. is to administer And in taking the Poll the Sheriff c. shall enter not only the Place of the Elector's Freehold but also the Place of his Abode and Jurat against the Name of every Voter who shall be tender'd and take the Oaths hereby required and the Sheriff or returning Officer shall within twenty Days after such Election deliver over upon Oath to be administred by the two next Justices of the Peace one of the Quorum unto the Clerk of the Peace of the same County all the Poll-Books of such Elections and in Counties where there are more than one Clerk of the Peace the Original to one and attested Copies to the rest to be kept among the Records of the Sessions of the Peace for the County And of an Act 7 Guil. III. Intituled G. Britain An if any Quaker Sheriff c. to admit any Quaker to vote during the Act 7 W. 3. and accept his Affirmation to the Effect of the Oath according to the said Act instead thereof and enter Affirmat against the Name of such Quaker during the Continuance of an Act 7 Guil. III. Intituled An Act that the solemn Affirmation and Declaration of the People called Quakers shall be accepted instead of an Oath in the usual Form shall upon such Election if required by the Candidates or any of them declare the Effect of the said Oath upon his solemn Affirmation in such Manner and Form as is directed by the said Act every such Quaker shall be capable and admitted to give his Vote for the Election of any such Member within England and every Sheriff c. is hereby authorized and required to accept such Affirmation instead of the said Oath and shall enter Affirmat against the Name of every such Quaker That any of the Electors present 2 St. 12 Annae Praeses of the Meeting upon Request of any Elector of a Shire or Stewartry in Scotland to swear either Elector or Candidate to their Estates suspecting any Person or Persons either Electors or Candidates for Shires or Stewartries in Scotland to have his or their Estates in Trust and for the Behoof of another may require the Praeses to the Meeting to tender the Oath in this Act contained and the said Praeses is required to administer the same Returning Officers are ordained to make their Returns of the Persons elected by the Majority of the Freeholders inrolled G. Britain and those admitted by them Returning Officers to return Persons elected by a Majority of Freeholders in rolled and those admitted by them with Liberty of objecting c. reserving always the Liberty of objecting against the Persons admitted to or excluded from the Poll as formerly All Sheriffs of Shires and Stewarts of Stewartries shall Sheriffs and Stewarts under 50 l. Penalty half to the Queen half to him that sues before the Court of Session c. to make publick Intimation at the Parish Churches within their Jurisdictions three Days before the Diet of Elections under the Pain of 50 l. Sterling one Moiety whereof shall be to the Queen Her Heirs and Successors and the other to the Person or Persons who shall sue for the same to be recovered before the Court of Session by any Action summarily without abiding the Course of the Roll make the publick Intimations required by the Laws of Scotland at the several Parish Churches within their respective Jurisdictions at least three Days before the Diet of Elections That the Oath or Affirmation which see ib. the Officer or Officers presiding St. 2 G. 2. ch 4. Presiding Officer to administer the Oath or Affirmation on Forfeiture of 50 l. or taking the Poll at such Election is and are hereby impowered and required to administer gratis if demanded upon Pain to forfeit the Sum of Fifty Pounds of lawful Money of Great Britain G. Britain to any Person that shall sue for the same to be recovered with full Costs by Action of Debt Bill Plaint or Information in any Court of Record at Westminster wherein no Essoign Protection Wager of Law or more than one Imparlance and if the said Offence shall be committed in that Part of Great Britain called Scotland then to be recovered together with full Costs by summary Action or Complaint before the Court of Session or by Prosecution before the Court of Justiciary there for every Neglect or Refusal so to do and no Person shall be admitted to poll till he has taken and repeated the said Oath in a publick Manner in Case the same shall be demanded as aforesaid before the returning Officer or such others as shall be legally deputed by him If any Sheriff Mayor Sheriff or other returning Officer admitting any to be polled before sworn to forfeit 100 l. Bailiff or other returning Officer shall admit any Person to be polled without taking such Oath or Affirmation if demanded as aforesaid such returning Officer shall forfeit One hundred Pounds to be recovered as aforesaid together with full Costs and if any Person shall vote or poll at such Election without having first taken the Oath or if a Quaker having made his Affirmation as aforesaid G. Britain if demanded such Person shall incur the same Penalty Voters to incur the like Penalty Returning Officer after reading the Writ to take the following Oath which the Officer is subject to for the Offence above mentioned That every Sheriff Mayor Bailiff Headborough or other Person being the returning Officer of any Member to serve in Parliament shall immediately after the Reading the Writ or Precept for the Election of such Member take and subscribe the following Oath which see ante Which Oath any Justice or Justices of the Peace of the said County City Corporation or Borough where such Election shall be made or in his or their Absence any Three of the Electors are hereby required to administer and such Oath so taken shall be entred among the Records of the Sessions of such County City Corporation and Borough as aforesaid If any returning Officer Penalty of wilful Perjury Elector or Person taking the Oath or Affirmation herein before mentioned shall be guilty of wilful corrupt Perjury or of false affirming and be thereof convicted by due Course of Law he shall incur and suffer the Pains and Penalties which by Law are enacted or inflicted in Cases of wilful and corrupt Perjury That all
of 7 H. 4. which prescribes the Manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders and that the Indenture shall be the Return of the Sheriff It was also said That the Precedents do warrant this Judgment viz. 1. One Precedent of 39 H. 6. where a Person outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and at that Time one Gargrave who was a Man learned in the Law was Speaker and of the Queen's Council 2. Another was the Case of one Fludd in the 23d of the Queen who being outlawed was adjudged That he should be privileged by Parliament and at that Time the Lord Chief Justice Popham was Speaker And 3. In the 35th of Elizabeth there were three Precedents scil one of Fitz-Herbert another of one Killegrew being outlawed in fifty two Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the Upper-House Note Whether a Person outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed That the Pardon without a Scire facias did not help him but that he was outlawed to that Purpose as if no Pardon had been granted And upon this the Lords sent to the Lower-House desiring a Conference with them concerning this Matter which Conference the Lower-House after some Deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like Manner they did 27 Queen Eliz. upon a Bill that came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and Purveyors and also they sent to the King to inform him of it But before their Messengers came to the King two of the Privy Council scilicet Sir John Stanhope and Sir John Herbert were sent to the King by the Lower-House to inform him that they had heard that his Grace was displeased with the House for their Sentence given for Sir Francis Goodwyn as well as in the Matter of the Sentence which was as they heard said to be against Law as also for the Manner of their Proceedings being done hastily without Calling to it either Sir John Fortescue or his Council or without making his Grace acquainted with it And therefore they desired his Grace to understand the Truth of this Matter and also told him That they were ready with his good Leave with their Speaker to attend his Majesty to give him Satisfaction about their Proceedings But the King told them they came too late and that it ought to have been done sooner calling the House Rash and Inconsiderate But yet notwithstanding he was content to hear their Speaker in the Morning at Eight of the Clock Upon this Message Committees were chosen to consider of the Things and Matters aforesaid which should be delivered to the King in Satisfaction of the Sentence given by the House which afterwards were considered of and digested by the Speaker and Committees in three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Precedents which were those I before have reported 3. And in Matters of Law Which were those Matters of Law also before reported by me with another Addition That in the Time of Henry the Sixth the Speaker of the Parliament was arrested in Execution at the Suit of the Duke of York and the Question being put to the Judges at that Time See Bohun's Col. p. 277. Whether the Speaker ought to have his Privilege it was said by them That they were Judges of the Law and not Judges of Parliament The Reasons and Motives were the free Election of the County the Request of one of the House the double Return of the Sheriff with a Commemoration of the Length of the Time since the Outlawries and with that the Payment of the Debts To this Report the King answered That he now ought to change his Tune which he used in his first Oration scilicet Thanksgiving to Grief and Reproof But he said That it was as necessary they should be reproved as congratulated and therefore he cited a parcel of Scriptures wherein God had so done with his People Israel nay with King David the People whom he tendered as the Apple of his Eye and David who was a Man after his own Heart He said It seems antiently to be a Privy Counsellor was incompatible with being a Member of Parliament or Publick Counsellor That since Sir Francis Goodwyn was received by the House upon Reasons and Motives inducing the House thereunto so the King upon Reason too took Consideration of Sir John Fortescue being one of the Council an ancient Counsellor a Counsellor not chosen by the King but by his Predecessors and so he found him and therefore he endeavoured to grace him being the only Man of them that had been disgraced the King protesting that he would not for any Thing in the World offer unjustly any Disgrace to any Man in the Nation Besides he did not proceed rashly as they had proceeded but upon Deliberation with double Advice as well with that of his Council as with that of his Judges And in his answering the Precedents Quere If the King himself was not here too over weening he said That those were his own proper Records and to use them against himself was over-great Weenings But in Precedents he said that they ought to respect Times and Persons and therefore said That Henry the Sixth's Time was troublesome he himself Weak and Impotent And as for the other Precedents they were in the Time of a Woman which Sex was not capable of Mature Deliberation and so he said where Infants are Kings whom he called Minors For the Law Part he referred to the Answer of his Judges who by the Lord Chief Justice gave these Resolutions They all unanimously agreeing in them 1. That the King alone and not the Parliament House had to do with the Returns of the Members of Parliament for from him the Writs issued and to him the Sheriff is commanded to make his Returns but when a Man is returned and sworn the Parliament-House hath to do with him and the Sheriff ought to Return the Outlawry if he knew it before his Return 2. They resolved clearly Thatan outlawed Person cannot by the Law be a Member of the Parliament-House but for that Cause