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
Benson a Member of the House Id. 596. having granted many Protections for Money taking for some sixteen seventeen forty shillings and twenty for ten shillings a piece Resolved upon the Question That Mr. Hugh Benson is unworthy and unfit to be a Member of this House and shall sit no longer as a Member of this House That he be forthwith sent for as a Delinquent by the Serjeant at Arms attending on this House Mr. Jervase Hollis expell'd the House for a Speech made with great strength of Reason and Courage Id. 710. but more Heat than the Times would bear was restored to his Place to sit as a Member of the House of Commons Sir William Widdrington and Sir Herbert Price sent to the Tower for bringing in Candles against the Desire of the House Id 272. 23 Eliz. 1580. Sir Simon d'Ewes Jour 309. Col. 2. Order'd and Resolved by the House That every Knight for the Shire that hath been absent this whole Session of Parliament without Excuse allowed by this House shall have a Fine of Twenty pounds set upon him to her Majesties Vse and upon every Citizen or Burgess for the like Ten pounds 1 Jac. 1. 1603. Petyt's Miscell Parl. 147. Mr. Lawrence Hide pretending Business of his Clients c. made known to the House that he would go out of Town and so took his leave in open Audience without the Assent or Leave of this House which was taxed and Mr. Speaker warranted to write to him It was also moved and resolved Id. 149. That Mr Speaker shou'd write another Letter to other Lawyers being gone down in the same Circuit where Mr. Lawrence Hide was advising them to attend it CHAP. VIII Concerning Elections of Members ALL Persons and Commonalties who shall be Summon'd to the Parliament 5 R. 2. St. 2. c 4. shall come as hath been accustomed of old time and he that cometh not having no reasonable Excuse shall be amerced and otherwise punish'd The King sendeth Writs to the Sheriffs of every Shire Arc. Parl. 4 Vide the Form of the Writ Sir Simon d'Ewes Jour 37. to admonish the whole Shire to choose two Knights of the Parliament in the Name of the Shire to hear and reason and to give their Advice and Consult in the Name of the Shire and to be present at the day At every County Hakewel 47. Vid. Crompton's Juris 3. after the Delivery of the Parliament-Writ to the Sheriffs Proclamation shall be made in the full County of the Day and Place of the Parliament and that all Men shall attend for the Election of the Knights for the same County for the Parliament Where the Parliament Writ speaks de qualibet Civitate Comitatûs illius Arc Parl. 22 Vid. Cromp. 3. this intended where the City is not a County in it self If it be the Writ shall be directed to them c. as it is to Sheriffs of other Countries 28 Eliz. 1586. Resolved That the House of Commons are the only competent Judges concerning Elections Sir Simon d'Ewes Jour 396 397. which are duly made which not 18 Jac. 1. Petyt's Miscell Parl. 111. The Mayor of Winchelsey for mis-behaving himself at the Election of Parliament-men for their Town and making a false Return ordered to be committed to the Serjeant and to make a Submission at the Bar and an Acknowledgment in the Town before the new Election 20 Jac. 1. Id. 112. The Mayor of Arundel for mis-behaving himself in the Election by putting the Town to a great deal of Charges not giving a due and general Warning and packing a number of Electors ordered to be sent for and adjudged to pay the Charge to be set down by three of the Members Likewise to every City and Town Arc. Parl. 4. Smith 's Common-wealth 76. which of ancient Time hath been wont to find Burgesses of the Parliament so to make Election that they might be present there at the first day of the Parliament In 7 Hen. 4. 4 Inst 10. 2 Inst 169. it is enacted That Elections shou'd be freely and indifferently made notwithstanding any Prayer or Commandment to the contrary sine Praece without any Prayer or Gift and sine Praecepto without Commandment of the King by Writ or otherwise or of any other The King 4 Inst 4. de advisamento Concilii resolving to have a Parliament doth out of the Court of Chancery send out Writs of Summons at the least Forty days before the Parliament begin The third Estate is the Commons of the Realm 4 Inst 1. Crompton's Juris 2 b. whereof there be Knights of the Shires or Counties Citizens of Cities and Burgesses of Boroughs All which are respectively elected by the Shires or Counties Cities and Boroughs by Force of the King 's Writ ex debito Justitiae and none of them ought to be omitted These Represent all the Commons of the whole Realm Ibid. are trusted for them and are in Number at this Time 493. Now above 500. Whosoever is not a Lord of Parliament Id. 2. and of the Lord's House is of the House of Commons either in Person or by Representation partly coagmentativè and partly representativè Every Member of the House being a Counseller Id. 3. shou'd have three Properties First to be without Malice or Envy Secondly to be constant and inflexible Thirdly to be of ripe and perfect memory as appeareth in a Parliament Roll Rot. Parl. 3 H. 6. n. 3. The Knights of the Shire are chosen by all the Gentlemen and Teoman i. e. Freeholders of the Shire Arc. Parl. 5. Smyth 's Common-wealth 77. present at the Day assign'd for the Election The Voice of any absent can be counted for none Concerning the Writs for Summoning the Knights and Burgesses and the Return of the Sheriff Vide Crompton's Juris 1 2. Every English-man is intended to be there present Arc. Parl. 3. either in Person or by Procuration and Attorny and the Consent of the Parliament is taken to be every mans Consent These meeting at one Day Id. 10. Smyth 's Common-wealth 77. the two have most of their Voices are chosen Knights of the Shire for that Parliament Likewise by the Plurality of the Voices of the Citizens and Burgesses the Burgesses are elected The Election ought to be in full County 4 Inst 48. between Eight and Nine says the Statute of 23 Hen. 6. c. 15. No Election can be made of any Knight of the Shire but between Eight and Eleven of the Clock in the Forenoon says the Lord Coke But if the Election be begun within the Time and cannot be determined within those hours the Election may be made after Any Election or Voices given Id. 49. before the Precept be read and published are void and of no Force for the same Electors after the Precept read and published may make a new Election and alter their Voices Secundùm Legem Consuetudinem Parliamenti For
in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the