sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a 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 CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable 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 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 years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof 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 to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. 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 Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward 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 without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. 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 All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper 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 Vpper 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 Vpper 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 alway 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 ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them that this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. Rush Coll. 269. The House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc. Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the Puisne Lord seriatìm by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been anciently used and may still without Prejudice to the Honour of the House that the King 's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. It was resolved Towns Coll. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the Lower House to be preferr'd to the Vpper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the Lower House and from them to receive in that Place their Messages
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 consider'd of and digested by the Speaker and Committees in Three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Presidents 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 Whether the Speaker ought to have his Priviledge 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 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 Presidents he said That those were his own proper Records and to use them against Himself was over-great Weenings But in Presidents 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 Presidents 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 That an Outlawed Person cannot by the Law be a Member of the Parliament House but for that Cause 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 Presidents 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 Plaintiff in Debt and Justice Windam for that purpose recanting his former Opinion said That he upon perusing of his Books and by the Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31th 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 Judgment Declaring That here 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 Indorsment 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 appeared 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 Priviledge of the Parliament House and that all the Presidents vouched by the Commons were after the Parties were Members of the House and not before they were
Returned And notwithstanding their 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 Councel 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 Presidents 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 medled with the Sheriff's Return of Members of Parliament Note This Resolution was written 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 being but one half of the Body the Lords being one and the Principal Part of the Parliaments Body 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 medled 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 alter'd 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 Vse 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 Presidents also do warrant this intermedling 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 Chancellour 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 Chancellour hath no Power to award a second Writ nor to meddle with the Return of it and divers other Presidents 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 Thrity fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parlament 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 Priviledges Customs Orders and Returns of their House They were an Entire Body as the Vpper House was for their Priviledges Customs and Orders which Continual and Common Vsage hath Approved of As to their Charge of having used Precipitancy and Rashness they Answered That they used it in such a Manner as in all Other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversie and then they caused the Clerk of the Crown to bring the second day the Writs and Returns and They being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true Proper Course of the Place As to the House's not having used the King well the thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellour had directed the second Writ as formerly had been done As to the Matter of the Outlawry They said That they understand by his Royal Person more strength and light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no Outlawed Person for the time to come should be of the Parliament nor any Person in Execution should have the Priviledge of Parliament But they said further That Sir Francis Goodwyn was not Outlawed at the Day of his Election for he was not Quinto Exactus the five Prolamations never had been made which Proclamation they in London always spare except the Party or any for him require it and that Exigent was never Returned nor any Writ of Certiorari directed to the Coroners to certifie it but after his Election which was a thing unusual the Money being paid the Sheriffs being long since dead to Disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And They farther shewed to the King That if the Chancellour only could examine Returns then upon every Surmise whether it were True or False the Chancellour might send a Second Writ and cause a New Election to be made And thus the Free Election of the County should be Abrogated which would be too Dangerous to the Commonwealth For by such means the King and his Council might make Any Man whom they would to be of the Parliament House against the great Charter and the Liberties of England FINIS BOOKS Printed for and sold by Timothy Goodwin at the Maiden-head against St. Dunstan 's Church in Fleetstreet 1. AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by the late Lord Ch. Justice Herbert Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales Case 2. The Power Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons asserted occasioned by an Information in the Kings Bench by the Attorney-General against the then Speaker of the House of Commons As also A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late High Commission in Ecclesiastical Causes in King James II. 3. A Defence of the late Lord Russel's Innocency Together with an Argument in the great Case concerning Elections of Members to Parliament between Sir Sam. Bernardiston Bar. Plaintiff and Sir Wil. Soames Sheriff of Suffolk Defendant in the Court of Kings Bench in an Action upon the Case and afterwards by Error sued in the Exchequer Chamber 4. The Lord Russel's Innocency further defended by way of Reply to an Answer Intituled The Magistracy and Government of England Vindicated These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath and Lord Chief Baron of their Majesties Court of Exchequer 5. A New Declaration of the Confederate Princes and States against Lewis XIV King of France and Navar Deliver'd in a late Audience at Versailles July 5. 1689. 6. Politica Sacra Civilis or a Model of Civil and Ecclesiastical Government wherein besides the Positive Doctrine concerning the State and Church in General are debated the Principal Controversies of the Times concerning the Constitution of the State and Church of England By George Lawson Rector of More in Salop. 7. The Parsons Councellor with the Law of Tythes and Tything In two Books The fourth Edition with the Addition of a Table Written by Sir Simon Degge 8. The Gentleman's Jockey and Approved Farrier instructing in the Natures Causes and Cures of all Diseases incident to Horses The Eighth Edition Enlarged 9. Popery or the Principles and Positions approved by the Church of Rome dangerous to all And to Protestant Kings and Supreme Powers more especially pernicious By Thomas Lord Bishop of Lincoln 10. A Modest Vindication of the Protestants of Ireland in Answer to the Character of the Protestants of Ireland 11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pamphlet written by Sir Richard Buckley Entituled Proposals for sending back the Nobility and Gentry of Ireland 12. Animadversions on Sir R.B. Proposals for sending back the Nobility and Gentry of Ireland 13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated and the lawfulness of the present Government asserted
or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons 3 Car. 1. 1626. Rash Coll. 365. Resolved upon the Question 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 imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer is a Breach of Priviledge 2 Nalson 380. Ever since the Conquest the Arch-Bishops Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter Vide Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per. totum and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hunt ut suprà per tot Vid. Grand Question concerning Bishops Right c. per totum Selden of Judicature c. p. 150. or other in Parliament the Arch-Bishops and Bishops depart the Higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial having first made Protestation saving their Right to be present in Parliament * Vid. there the Protestation of the Bishops for ever Id. 151. The Protestation I think intends That they could not be present by reason of the Common Law and by reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergy-men were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium the King assentire and the Lords only did judicare The King's Assent ought to be to Capital Judgments Id. 141. Vid. id 144 147 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments If a Peer be committed to Prison the Gentleman Vsher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10 Vid. 4 Inst 362. Rot. Parl. 3 H. 6. n. 10. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers Arcana Parl. 70. because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King Id. 71. The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment 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 Honor and are not charged but upon their Honors 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 lye 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. Statute 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. 98. he ought to appeear in his proper Person and not by Attorny unless he has a special Writ of Chancery CHAP. IV. Power of the House of Lords A Peer of the Realm being Indicted of Treason 4 Inst 23. or Felony 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 Many notable Judgments by the Lords Ibid. Vide Rush Coll. passim Vid. Nalson at the Prosecution of the Commons and in later Times Error serra sue in Parliament Vid. Crompton 18. b. Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take 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 Justitia have a Writ of Error directed to the Chief Justice of the
14 Eliz. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edw. Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneage Finch 1 Car. 1 cum multis aliis The Speaker ought to be religious Towns Coll. 174. honest grave wise faithful and secret These Vertues 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 Surely the Election of the Speaker was anciently 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 discharged by the King and thereupon the Commons chose and presented William Tresham Esq who made no Excuse The Cause of Summons being declared by the King or Chancellor Elsyng 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. Towns Coll. 174. one of the Commons puts the rest in mind of their Charge given in the Vpper 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. Towns 174. Vide Sir S. d'Ewes 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 that 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 Co. 12.115 Vid. Towns 175. Vid. Sir S. d'Ewes Jour passim he was by general Acclamation chosen Speaker When the Speaker is chosen he in his Place where he first shall sit down shall disable himself and shall pray That they would proceed to a new Election When it appeareth who is chosen Elsyng 153 Vid. Towns 175. Vide Sir S. d'Ewes Jour passim after a good Pawse he standeth up and sheweth what Abilities are required in a Speaker and that there are divers among them well furnish'd with such Qualities c. disableth himself and prayeth a new Choice to be made which is commonly answered with a full Consent of Voices upon his Name If the House generally give a Testimony of their Approbation Elsyng 153 4 Inst 8. Vid. Towns 175. Vide Sir S. d'Ewes Jour passim two of the Members which for the most Part were of the Council or chief Officers of the Court going to the Gentleman named and agreed to be Speaker take him from his Place and lead him unto the Chair Elsyng says take him by the Arms and lead him to the Chair where being set they return to their Places After a while he riseth and uncover'd Elsyng 153 with humble Thanks for their good Opinion of him promiseth his willing Endeavors to do them Service After he is put into the Chair Co. 12.115 4 Inst 8. then he shall pray them That with their Favors he may disable himself to the King that so their Expectations may not be deceived Then some and commonly he that first spake puts them in mind of the Day to present him Vid. Towns 175. Sir Simon d'Ewes Jour passim c. Elsyng 153 So it was done by Sir William Knowls the Controller in the 43 Eliz. Two or three Days after the Commons shall present the Speaker in the Vpper House to the King Co. 12.115 Rush Coll. 480. Smyth's Common-wealth 80. where he shall disable himself again to the King and in most humble manner shall intreat the King to command them to choose a more sufficient man At the Day appointed Flsyng 156 Vid. Towns 175. his Majesty sitting on his Royal Throne and the Lords all in their Robes the Commons are called in who being come the Speaker is brought between two of them with low Obeysance to the Bar and so presented at the Bar to his Majesty The Speaker having made his Excuse the Lord Chancellor consers with the King and then telleth him That his Majesty doth approve the Commons Choice and will not allow of his Excuse Then the Speaker proceeds to his Speech But anciently he made first a Protestation as you may read in Elsyng 159 160. After he is allowed by the King Co. 12.115 Vide Rush Coll. 117. Vi. Smyths Common-wealth 80. then he shall make an Oration and in the Conclusion shall pray the four usual Petitions The Speaker's Speech is what it pleaseth himself having no Direction at all from the Commons touching the same making Petition to the King on behalf of the Commons Elsyng 164 some in general words for all their ancient Priviledges and some in particular The Protestation of the Speaker consists of three Parts 4 Inst 8. Vid. Towns Coll. 4. 54 Rush Coll. 484. Vide Elsyng 164. First That the Commons in this Parliament may have free Speech as by Right and of Custom they have used and all their ancient and just Priviledges and Liberties allow'd to them Secondly That in any Thing he shall deliver in the Name of the Commons if he shall commit any Error no Fault may be arrected to the Commons and that he may resort again to the Commons for declaration of their true Intent and that his Error may be pardoned Thirdly That as often as necessity for his Majesties Service and the Good of the Commonwealth shall require he may by Direction of the House of Commons have Access to his Royal Person Some add a Fourth Modus tenend Parl. 35.
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. 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. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient 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 2 Nalson 381. 1641. 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 Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
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.
Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords Whether the Commons shall be present or not Issuing of Quo Warranto's out of the Court of King's Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew cause why they sent Burgesses of Parliament and all the Proceedings thereupon are Coram non Judice illegal and void And the Right of sending Burgesses to the Parliament is questionable in Parliament only and the Occasioners Procurers and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice Where the Articles against the Delinquents are ex Parte Domini Regis Selden 's Judicature 118. there the Commons cannot reply nor demand Judgment for the Suit is the King 's and not theirs In Trewinnard's Case Id. 39. Dyer 60 61. The Priviledge of the Commons is termed the Priviledge of Parliament and the Judgment given in that Case by the House of Commons is there said to be The Judgment of the most High Court of Parliament Sir Robert Atkyns's Argument 35. which proves they are not without a Judicial Power The King cannot take notice of what is done in the Commons House Id. 53. or deliver'd to them but by the House it self and that is one of the Laws and Customs of Parliament In 31. Hen. 6. Id. 55. when the Commons requested the King and Lords to restore their Speaker to them c. The Judges being demanded of their Counsel therein after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason Ibid. to judge of the Law signifies that they can judge whether a Law be good or not in order to approve it and to enact it or to repeal a Law In 1621. Ibid. the House of Commons made a Protestation against all Impeachments other than in the House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Coll. Vol. 1. f. 663. That regularly a Parliament-man cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course If it be done in a Parliamentary Course what Occasion can there be to answer for it But who shall judge what is a Parliamentary Course but a Parliament not Judges of the Common Law for the Parliamentary Course differs from the Rules of the Common Law 27 Eliz. 1584. Sir Simon d'Ewes Jour 347. Col. 2. Ordered That the Serjeant of this House do forthwith go to the Common Pleas Bar and charge the Recorder then pleading there to make his present Repair unto this House for his Attendance Eodem Anno Id. 367. Col. 1. John Bland a Currier for making dishonourable Reflections on the House of Commons brought to the Bar and pardoned upon his Submission paying twenty shillings Fee to the Serjeant and taking the Oath of Supremacy Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for setting at Liberty John Pepler Servant to Sir Philip Sidney a Member of this House now Prisoner for Debt in the Compter in London 28 29 Eliz. 1586. Id. 397. Col. 1. Resolved by the whole Body of the House That the discussing and adjudging of Differences about Elections only belonged to the said House That tho' the Lord Chancellor and Judges were competent Judges in their proper Courts yet they were not in Parliament 31 Eliz. 1588. Id 451. Col. 1. Thomas Drury committed to the Serjeant's Custody brought to the Bar and discharged paying his Fees for speaking dishonourably of the Proceedings of the House 23 Eliz. 1580. Id. 283. Col. 1. A Member of the House stood Indicted of Felony Adjudged That he ought to remain of the House till he were Convicted for it may be any man's case who is guiltless to be Accused and thereupon Indicted of Felony or a like Crime 18 Eliz. 1575. Petyt 's Miscel Parl. 16 18 Edward Smalley was upon the Question adjudged by the House to be Guilty of Contempt and abusing the House by fraudulent Practise of procuring himself to be Arrested upon Execution of his own Assent and Intention to be discharged as well of his Imprisonment as of the said Execution And Matthew Kirtleton adjudged Guilty of Confederacy with the said Smalley Whereupon they were both ordered to be committed to the Tower And the said Smalley to remain there for a Month and after till he gave sufficient Assurance for payment of a hundred pounds to the Creditor and forty shillings for the Serjeant's Fees 4 Ed. 6. Criketoft Id. 96. for the confederating in the Escape of one Floud committed to the Tower and afterwards discharged paying his Fees 1 Jac. 1. Bryan Tash Id. 98. a Yeoman of his Majesties Guard for keeping the Door of the Lobby of the Vpper House against several Members of the House of Commons brought to the Bar of the House and upon his Submission and Confession of his Fault dismissed paying the ordinary Fees to the Clerk and Serjeant 20 Jac. 1. Dr. Harris Id. 104. for misbehaving himself in preaching and otherwise with respect to Election of Members of Parliament call'd to the Bar as a Delinquent and admonish'd to confess his Fault there and in the Country and in the Pulpit of his Parish Church 3 Car. 1. Mr. Burgess a Minister Id. 104 105. for abusing his Function in the Duty of Catechising c. sent for by a Messenger committed to the Tower and upon humble Submission deliver'd In the same Parliament Id. 105 106. Sir William Wray Mr. Langton Mr. John Trelawny and Mr. Edward Trelawny Deputy Lieutenants for Cornwal for assuming to themselves a Power to make Knights of the Shire defaming such as stood to be chosen sending for the Train'd Bands menacing the Country c.
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.
were committed to the Tower and one Delinquent to a place call'd Little Ease and others to Newgate 2 Martij 1592. Scobel 112 113. Vide Moor so 340. n. 461. Fitzherbert's Case Vide Sir S. d'Ewes Jour 479 480 490. Col. 2. Upon a Report from the Committee of Priviledges That one Mr. Fitzherbert was return'd a Burgess and accepted against because he was alledged to be Outlaw'd and detain'd upon such Outlawry The House order'd That Mr. Speaker shou'd move the Lord Keeper for an Habeas Corpus cùm Causà to bring up the Body and the Cause of Mr. Fitzherbert But the Lord Keeper return'd That in regard of the ancient Liberties and Priviledges of this House the Serjeant at Arms be sent by Order of this House for Mr. Fitzherbert at his own charge by reason whereof he may be brought without peril of being further arrested by the way which was approved of 1 Jac. 1. Scobel 104 103 106 107. The first day of sitting complaint was made That Sir Thomas Shirley chosen a Member of the House Vid. Petyt's Miscell Parl. 122 123 124 125. was arrested four days before the sitting of this Parliament a Warrant issued to the Clerk of the Crown for a Habeas Corpus to bring him to the House being then a Prisoner in the Fleet and the Serjeant and his Yeoman were sent for in Custody who being brought to the Bar and confessing their Fault were remitted for that time 17 April Upon hearing Councel in the House at the Bar for Sir Thomas Shirley and the Warden of the Fleet it was order'd That Simson at whose Suit and the Serjeant by whom the Arrest was made shou'd be committed to the Tower 4 Maij A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the House the Warden deny'd to execute it for which the 7th of May following he was sent for by the Serjeant and brought to the Bar who denying to bring his Prisoner a new Writ of Habeas Corpus was awarded and the Warden was committed to the Serjeant with this Order That if that Writ were not executed that then he should be deliver'd over to the Lieutenant of the Tower as the Houses Prisoner 8 Maij The Serjeant was sent with his Mace to the Fleet the Housè sitting to require the Body of Sir Thomas Shirley but the Serjeant being deny'd a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower to be kept close Prisoner 11 Maij The Warden was again sent for and brought to the Bar and refusing to deliver up his Prisoner he was committed to the Place call'd the Dungeon or Little Ease in the Tower 14 Maij A new Warrant was order'd for a new Writ of Habeas Corpus and that the Serjeant shou'd go with the Writ that the Warrant shou'd be brought to the Door of the Fleet by the Lieutenant himself and there the Writ to be deliver'd to him and the Commandment of the House to be made known to him by the Serjeant for the executing of it that in the mean time the Warden to be presently committed to the Dungeon and after to be return'd thither again 18 Maij The Warden did deliver Sir Thomas Shirley and so was not put into the Dungeon 19 Maij He attending at the Door was brought in to the Bar where upon his knees confessing his Error and Presumption and professing he was unfeignedly sorry he had so offended this Honourable House upon that Submission by direction of the House the Speaker pronounced his Pardon and Discharge paying ordinary Fees to the Clerk and to the Serjeant Mr. Belgrave Sir Simon d'Ewes Jour 688. Col. 1. being a Member of the House of Commons had an Information exhibited against him in the Star-chamber by the Earl of Huntington An Order was enter'd as the Act of the House 43 Eliz. 1601. That he ought not to be molested in that Manner 10 Febr. 4. Rush Coll. 653. Vid. Petyts Miscell Parl. p. 107 Car. 1. Whilest the House was in Debate the Ware-house of Mr. Rolls Merchant and Member of the House then sitting in Parliament was lock'd up by a Pursuivant and himself call'd from the Committee and served with a Subpoena This gave occasion of smart Debates in the House After Id. 654. the Attorney General writ a Letter That the serving a Subpoena was a mistake and pray'd a favourable Interpretation Resolved That Mr. Rolls a Member of the House Rush Coll. 659. ought to have Priviledge of Person and Goods 16 Febr. 5. Memorials of the Method of Proceedings in Parliament 97. Vid. Sir S. d'Ewes Journ 85. Col. 1. Eliz. Robert Parker Servant to Sir William Woodhouse Knight for Norfolk being attached in London at the Suit of one Baker in Trespass had a Warrant of Priviledge notwithstanding Judgment given against him for four Marks 20 Febr. 18. Ibid. Vide Sir S. d'Ewes Journ 251. Col. 1. Eliz. 1575. Upon the Question and also upon Division of the House Edward Smaley Servant to Arthur Hall Esq one of the Burgesses for Grantham being arrested upon an Execution had Priviledge 16 Dec. 44 Eliz. Anthony Curwen Servant to William Huddleston Esq one of the Knights of Cumberland Ibid. Vid. Sir S. d'Ewes Jour 680. Col. 1. being arrested upon a Capias ad Satisfaciendum out of the Common Pleas for six pounds Debt and forty shillings Damages and detain'd in Execution a Supersedeas was awarded and he was deliver'd And the House awarded Towns Coll. 326. Vide Sir S. d'Ewes Jour 680. Col. 1. 686. Col. 1. the Serjeant shou'd be discharged paying his Fees and that Matthews shou'd pay them and Matthews to pay his Fees and remain three days in the Serjeants Custody for procuring the Arrest 11 Maij 19 Jac. 1. Memorials c. p. 98. The Vnder-Sheriff of Middlesex was call'd to the Bar for causing Alexander Melling Servant to the Chancellor of the Dutchy to be arrested he deny'd he knew him to to be his Servant Mr. Speaker let him know the House had order'd him to have Priviledge and therefore ordereth the Vnder-Sheriff to discharge him 1 Jac. Ibid. 1. Sess 2. Sir Edward Sandys moveth a Breach of Priviledge by Sir Robert Leigh a Justice of the Peace for committing his Coach-man to Newgate Sir Robert Leigh was sent for by the Serjeant and an Habeas Corpus for the Prisoner Sir Robert Leigh being brought to the Bar acknowledg'd his Fault and was discharged and so was the Prisoner 3 Martij 1606. Ibid. Valentine Syre Servant and Bag-bearer to the Clerk of the Commons House being arrested upon an Execution was by Order and Judgment of the House enlarged 7 Sept. 1601. Id 99. Vid. Towns Coll 196 206 210. Woodal Servant of William Cook Esq a Member of the House being arrested and in Prison in Newgate Vide Sir S. d'Ewes Jour 629. Col. 1. the