Commencement could have been shewn During the British Saxon and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens and essential and constituent Part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent and past all Contradiction Id. 12. That the Commons in the Times of the Britons Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be govern'd and that the Law was then the golden Metwand and Rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or deny'd 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 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 The Book of the Clerk of the House of Commons is a Record 4 Inst 23. as it is affirmed by Act of Parliament 6 Hen. 8. c. 16. 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 and the Knights Citizens Cromptona b. 4 Inst 1. Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons and Commonalties St. 5 Rich. 2. c. 4. Rast 140. which shall be summon'd to Parliament shall come as has been used and accustom'd of ancient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of ancient Time has been used CHAP. VI. Power of the House of Commons THE House of Commons is a House of Information and Presentment Rush Coll. 217. Vol. 1. but not a House of Definitive Judgment 1 Car. 1. Rushw ib. 1625. Resolved 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 Judicature 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 and not to be deny'd Petyt's Miscell Pref. c. p. 5. 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 magnâ 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 as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent Rush Coll. 690. A Member of Parliament may charge any great Officer of State with any particular Offence If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. Petyt's Miscel Parl 64 1603. The Bishop of Bristol publishing a Book tending to make division and strife wrong and dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rush Hist Coll. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Coll. Nalson Vide Petyt's Miscell Part. 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part. 82. 4 Junij 19 Jac. 1. Petyt's Miscell Parl. 120. The Commons House of Parliament this day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant at Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Miscell Parliamentaria Thomas Long gave the Mayor of Westbury four pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundùm Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and long removed for this corrupt Dealing was to poison the very Fountain it self Arthur Hall a Member of the House of Commons Ibid.
pass't at a Committee and not reported nor confirmed by the House shall be any Rule or Direction for any Court of Justice to ground any Proceedings thereon CHAP. XVIII The Order and Power of Grand Committees A Grand Committee consists of as many Members at least as constitute the House Scobel 35. less may not sit nor act as a Committee who have general Power to consider of any Matter touching the subject Matter referred and to present their Opinions therein to the House the better to prepare Matters of that Nature or Bills therein for the House which may better be prepared by the Liberty that every Member hath in a Grand Committee as well as in other Committees to speak more than once to the same Business if there be cause which is not permitted in the House Bills of great Concernment Id. 49. and chiefly Bills to impose a Tax or raise money from the People are committed to a Committee of the whole House to the end there may be opportunity for fuller Debate for that at a Committee the Members have liberty to speak as often as they shall see Cause to one Question and that such Bills being of general Concernment shou'd be most solemnly proceeded in and well weighed Grand Committees have their Powers and Rules in other Circumstances given them in express words by the House Id. 35. as to send for Witnesses to hear Councel or assign them on either part to send for Records When any great Business is in Agitation that requires much Debate Id. 36. or a Bill for a publick Tax is to be committed the House doth use to Resolve into a Grand Committee of the whole House which is done by a Question and then the Speaker leaves the Chair and thereupon the Committee makes choice of a Chair-man If more than one be generally call'd to the Chair Scobel 36. any Member may stand up and by Consent of the Committee put a Question for one of those named to be the Chair-man 19 Jac. 1. Ibid. A Dispute being in the Committee which of two Members named shou'd go to the Chair the Speaker was call'd to his Chair and put the Question That Sir Edward Coke one of the Persons named shou'd take the Chair and then the Speaker left his Chair The Chair-man of the Grand Committee is to sit in the Clerk's Place at the Table Ibid. and to write the Votes of the Committee If upon putting a Question Id. 38. the Chair-man who is to judge the Voices have deliver'd his Opinion That the Yea's have it and any Member stand up and say He believes the No's have it or contrariwise the Committee is to divide within the House the Chair-man directing the Yea's to one side of the House and the No's to the other and then he is to appoint one of each to count the Numbers and report them which is to be done in the same Order as in the House saving that the Obeysance is only twice in the Committee thrice in the House if the Number be equal the Chair-man hath the casting Voice otherwise he hath none in the Committee When the Committee hath gone through the Matter referred to them Ibid. the Chair-man having read all the Votes is to put the Question That the same be reported to the House if that be Resolved he is to leave the Chair and the Speaker being again call'd to the Chair or at the next Sitting of the House if it be then adjourn'd the Chair-man is to report what hath been resolved at the Committee standing in his usual Place from whence if it be not in the Seat next the Floor he is to go down to the Bar and so to bring up his Report to the Table If the Committee cannot perfect the Business at that Sitting Ibid. they may not adjourn as other Committees but a Question is to be made for reporting to the House and that leave be ask'd That the Committee may sit at another Time on that Business But if as it sometimes falls out Ibid. the Matter hath received a full Debate in the Committee and it is judged fit to be Resolved in the House the Speaker is again call'd to the Chair for that purpose In other Things the Rules of Proceedings are to be the same Id 39. as are in the House 4 Junij 1607. Ibid. Agreed for a Rule That every Question upon the Voices of a Committee bindeth and cannot be alter'd by themselves Every Thing directed Ibid. and agreed to be reported ought to be accordingly reported but not every Thing spoken or debated at a Committee 15 Maij 22 Jac. 1. Id. 36. Upon Complaint from the Grand Committee for Grievances That they had sent several Warrants for divers Persons to bring in their Patents which they had not done the House order'd the Serjeant at Arms to send for them The Commiteee for Trade is sometimes made of a Grand Committee of the whole House Id. 9. as in 21 Jac. 1. The Committees for Religion Ibid. Grievances and Courts of Justice are always Grand Committees of the House which are to sit in the Afternoon upon such days as the House doth appoint to them respectively 8 13 Martij 21 Jac. 1. Id. 36. Upon Report from the Committee for Trade which then was a Grand Committee the House was moved for their Order to the Merchants Adventurers to bring in their Patents and that the Inventor of the pretermitted Customs shou'd attend the Committee The Commons Rush Coll. 225. upon Debate of what fell from his Majesty and the Lord Keeper turned the House into a Grand Committee order'd the Doors to be lock'd and no Members to go forth and that all Proceedings in all other Committees shall cease till the House come to a Resolution in this Business CHAP. XIX Concerning standing Committees THE Commons being the General Inquisitors of the Realm 4 Inst 11. have principal Care in the Beginning of the Parliament to appoint days of Committees viz. of Grievances both in the Church and Commonwealth of Courts of Justice of Priviledges and Advancement of Trade In Parliament there have usually been five standing Committees appointed in the Beginning of the Parliament Scobel 9. and remaining during all the Session other Committees were made occasionally and dissolved after the Business committed to them was reported Standing Committees are for Priviledges and Elections Standing Committees are for Religion Standing Committees are for Grievances Standing Committees are for Courts of Justice Standing Committees are for Trade Ibid. These Committees when they meet 4 Inst 12. they elect one of them to sit in their Chair in likeness of the Speaker The Committee may examine and vote the Questions handled by them and by one whom they appoint report their Resolution to the House and the House sitting the Speaker to determine the same by Question The Committees for Religion Scobel 9. Grievances
for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Coll. Vol. 1. 689. in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight 4 Inst 49. Citizen or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Coll. 63 64. Vide John Smiths Ca. Sir Simon d'Ewes Jour 48. Col. 2. 480. Col. 1. Vide Sir Simon d'Ewes Jour 481. Col. 2. If Exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party Sir Simon d'Ewes Journal 482. Col. 1 yet the Priviledge of the House being urged that prevaileth over the Law A man Attainted Sir Simon d'Ewes Jour 482. Col. 1. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron who is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Journal 244. Col. 2. One under the Age of One and twenty years is not eligible 4 Inst 47. Neither can any Lord of Parliament sit there till he be full One and and twenty years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscel Parl. 175. per Sir Edward Coke Resolved upon the Question Ibid. That the Election of Mr. Walter Steward being no natural born Subject is void and a Warrant to go for a new Writ None of the Judges of the Kings Bench or Common Pleas 4 Inst 47. or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl Roll 31 H. 6. But any that have Judicial Places in other Courts Ecclesiastical or Civil being no Lords of Parliament Ibid. are eligible None of the Clergy Moor fo 783. n. 1083. 4 Inst 47. tho' he be of the lowest Order is eligible to be Knight Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f 1639. A man Attainted of Treason or Felony 4 Inst 48. c. is not eligible For he ought to be magìs idoneus discretus sufficiens Mayors and Bayliffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg tit Parl. 7. At a Parliament holden 38 H. 8. it was admitted and accepted That if a Burgess of Parliament be made a Mayor of a Town Crompt 16. or have Judicial Jurisdiction or another is sick that these are Causes sufficient to choose others Any of the Profession of the Common Law 4 Inst 48. and which is in Practise of the same is eligible By special Order of the House of Commons the Attorny General is not eligible to be a Member of the House of Commons Ibid. Egerton Solicitor la Roign fuit command d'Attender en l'Vpper House Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 441. Col 2 442. Col. 1. attend 3 Jours apres fuit eslie Burgess pur Reading Et fuit reteign quia il fuit primes attendant en l'Vpper Meson devant que il fuit eslie un Member de lower Meson Egerton the Queen's Solicitor was commanded to attend in the Vpper House and did attend three days afterward was chosen Burgess for Reading And he was retained because he was first attendant in the Vpper House before he was chosen a Member of the Lower House Onslow Solicitor esteant Burgess de lower Meson Moor f. 551 n 741. Vide Sir S. d'Ewes Jour 121. Col. 1 2. fuit command d'attend en upper Le lower Meson vient luy challenge demand d'aver luy fuit grant quia il fuit Member de lower Meson devant que il fuit command per Breve d'attend en le upper Onslow the Solicitor being a Burgess of the Lower House was commanded to attend in the Vpper The Lower House come and challenge him and demand to have him and it was granted because he was a Member of the Lower House before he was commanded by Writ to serve in the Vpper 18 Eliz. 1585. Sir Simon d'Ewes Jour 249. Col. 1. Concluded by the House That Mr. Serjeant Jeffreys being one of the Knights returned for Sussex may have Voice or give his Attendance in this House as a Member of the same notwithstanding his Attendance in the Upper House as one of the Queen's Serjeants for his Counsel there where he hath no Voice indeed nor is any Member of the same 23 Eliz. 1580. Id. 281. Col. 1. Popham Solicitor General upon demand made by the House was restored to them by the Lords because he was a Member of the House of Commons and they possessed of him before he was So licitor or had any Place of Attendance in the Vpper House No Sheriff shall be chosen for a Knight of Parliament Book of Extr. 411. Crompton 's Jur. 3. b. nor for a Burgess 1 Car. 1. 4 Inst 48. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and returned into the Chancery and had the Priviledge of Parliament allow'd to him by the Judgment of the whole House of Commons Vide de hoc Pro Con Sir Simon d'Ewes Journal 38 436 624 625. 1 Jac. 1. Sess 2. Scobel 96. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolved upon the Question That he shall attend his Service here The personal Residence and Attendance of Sheriffs is required within their Bailywicks Rush Coll. Vol. 1. 684 685. during the Time of their Sheriffwick Mr. Walter Long being Sheriff of Wilts was after chosen Citizen for Bath and for that Offence was committed and fined viz. because he sate and served in Parliament Sir Andrew Noel Kt Towns Coll. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2.
624. Col. 2. Sheriff of Rutland returned himself Knight and adjudged a void Return and a Warrant ordered for a new Election For said Serjeant Harris we know in Law that a man cannot make an Indenture to himself no more can he here between himself and the County for there are required two Persons Yet Sir Edward Hobby said That the House might well receive him and vouched a Precedent when the Bayliffs of Southwark returned themselves Burgesses and were received The Fee for the Knight of any County is 4 Inst 46. four shillings per diem and every Citizen or Burgess is to have two shillings per diem Where one Person is chosen and returned to serve in several Places Scobel 18. Vide Sir S. d'Ewes Jour passim it is in his Election to make his Choice in the House in his own Person for what Place he will serve and wave the other Election so as a Writ may issue for a new Election that the number may be full CHAP. XI Returns of Sheriffs c. And Amendments of Returns COncerning the Punishment of Sheriffs for their Negligence in returning of Writs 5 R. 2. Stat. 2. c. 4. or for leaving out of their Returns any City or Borough which ought to send Citizens and Burgesses See the Stat. Every Sheriff St. 8 H. 6. c. 7. 23 H. 6. c. 15. Vid. Cromton's Juris 3. Hakewel 48. who doth not make true Return of Elections of Knights Citizens and Burgesses to come to Parliament shall forfeit an hundred pounds to the King and an hundred pounds to the Party injured and be imprison'd for a Year without Bail or Mainprize And every Mayor or Magistrate of a Town so oftending shall pay Forty pounds to the King and Forty pounds to the Party This Action to be within Three months after the Parliament commenced or by any other man who will If he so do not Hakewel 49. Vid. Crompton's Juris 3. b. and prosecute his Suit with Effect and without Fraud any other man who will may have the said Suit for the said hundred pounds as the Knight had and Costs of Suit also shall be awarded to the said Knight or any other who will sue in his behalf The Sheriff shall make a good Return of his Writ Hakew. 51. and of every Return of the Mayor and Bayliff or Bayliffs where no Mayor is to him made The Burgesses of Leskard in Cornwal being elected Towns Coll. 63. the Town refused to deliver up their Indenture to the Sheriff but the Party elected made his Indenture and deliver'd it to the Clerk of the Crown who filed it with the rest of the Indentures returned by the Sheriff the Sheriff having endorsed it upon his Writ but this Indenture was never executed by the Sheriff nor returned and yet this Return was held by the Committees to be good Jan. 1641. Ordered 2 Nalson 870. That the High-Sheriff of the County of Sussex who has return'd two Indentures for the Town of Arundel shall be summon'd to appear here at the Bar to amend his Return 35 Eliz. 1592. Sir Simon d'Ewes Jour 490. Col. 2. It was said by the Speaker No Return can be amended in this House For the Writ and the Return are in Chancery and must be amended there Every Sheriff or other Officer St. 33 H. 8. c. 1. in Ireland returning any Knight Citizen or Burgess chosen in any other manner than is prescribed in the Statute to forfeit an hundred pounds If one be duly elected Knight 4 Inst 49. It cites in the Margin Rot. Parl. 5 H. 4. n. 38. Citizen or Burgess and the Sheriff return another the Return must be reformed and amended by the Sheriff and he that is duly elected must be inserted for the Election in these Cases is the Foundation and not the Return 18 Jac. 1. Scobel 115. The Sheriff of Leicestershire having returned Sir Thomas Beaumont upon Report from the Committee for Elections that Sir George Hastings was duly chosen the Sheriff was ordered to return Sir George Hastings to the Clerk of the Crown and he to accept it and file it 21 Jac. 1. Ibid. Upon Report from the Committee of Priviledges That in the Election of Mr. John Maynard for Chippingham John Maynard was chosen but by a Mistake Charles was afterward written in stead of John It was Resolved The Return shou'd be amended without a new Writ and that the Bayliff shou'd do it and not the Clerk of the Crown and that it shou'd be sent down to the Bayliff in the Country and he to Return John Maynard Esq the first Burgess 1 Febr. 1640. It being Resolved Ibid. That the Election of Mr. Erle for one of the Burgesses of Wareham is a good Election Ordered That the Officer who was the Officer when the Return was made or his Deputy or the Electors shou'd amend the Return But the next day it was Ordered That Edward Harbin the late Mayor of Wareham 's Deputy shou'd come to the Bar of the House and amend the Return 20 Febr. 1640. Id. 116. The Bayliff of Midhurst in Sussex came to the Bar being sent for by Order of the House and amended one of the Indentures of Return of Burgesses for that Town and the other was taken off the File If a Sheriff shall return one for a Knight of the Shire Sir Simon d'Ewes Journ 283. Col. 2. who was unduly or not at all elected yet he that is so return'd remains a Member of the House till his Election be declared void CHAP. XII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited into 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. the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expense of Time and Contestation the Use is as in the Conje d'Eslier of a Bishop that the King doth name a difereet 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 and choose another Id. 8. So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed The first Day each Member is called by his Name Modus tenend Parl. 35. every one answering for what Place he 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