Being of this Kingdom can have no other Bottom to stand upon but the Parliament it being the Foundation upon which the whole Frame of the Commonwealth is built The Parliament is the Cabinet Ib. 201. wherein the chiefest Jewels both of the Crown and Kingdom are deposited The great Prerogative of the King and the Liberty of the People are most effectually exercised and maintained by Parliaments c. Parliaments are the Ground and Pillar of the Subject's Liberty Ib. 587. and that which only maketh England a free Monarchy Parliaments are says the Earl of Warwick Ib. 752. Admiral of the Sea to John Pym Esq July 6 1742 That Great Council by whose Authority the King's of England have ever spoken to their People Both Houses of Parliament are the Eyes in the Body Politick Ib. 702. whereby His Majesty is ought by the Constitution of this Kingdom to discern the Differences of those Things which concern the Publick Peace and Safety thereof The Parliament is the Mouth of the King and Kingdom Vox Dei c. Parliaments says K. C. 1. in his Declaration to all his Loving Subjects Rushw Coll. 3d Part Vol. 2 p 40. after his Victory at Edgehill on the 23d of October 1642 are the only Sovereign Remedies for the growing Mischiefs which Time and Accidents have and will always beget in this Kingdom That without Parliaments the Happiness cannot be lasting to King or People The Parliament is to be considered in three several Respects first Ib. p. 45. As it is a Council to advise 2dly As it is a Court to judge 3dly As it is the Body Representative of the whole Kingdom to make repeal or alter Laws L'Assemblie de Troys Estates Cestascavoir Finch's Nemotecnia lib. 2. c. 1. fo 21. Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i. e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament On the Restoration of King Charles the 2d the Commons resolved May 1. 1660. Journal Dom. Co. That this House doth agree with the Lords and do own and declare that according to the antient and fundamental Laws of this Kingdom the Government thereof is and ought to be By King Lords and Commons The Word Parliament is used in a double Sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament add in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the Two Houses the Lords and Commons as when we say The King will call a Parliament His Majesty has dissolved his Parliament c. This Court is the highest Court in England Crompton's Juris p. 1. in which the Prince himself sits in Person and usually comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth 4 Inst 3. during the Parliament The King is the Caput Principium and Finis of Parliaments It appears by Precedents That whenever a Parliament was sitting in the King's Absence Rushw Coll. Vol. 3. Part 1. p. 772. there was always a Custos Regni or a Locum Tenens Regis appointed This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties Vide Dyfol 60. or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Descent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by Force of the King's Writ ex Debito Justitiae and none of them ought to be omitted And these represent all the Commons of the whole Realm and are trusted for them The King and these three Estates Ib. 2. are the great Corporation or Body Politic of the Kingdom and do sit in two Houses King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Coll. 5.6 Vid. Cromp ton 1. Barons of the Exchequer of the Coif the King's Learned Council and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. but are made sometimes joynt Committees with the Lords Every Englishman is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74 or by Procuration and Attorney of what Preeminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every Man's Consent In antient Time the Lords and Commons of Parliament did sit together 2 Bulstro 173. See Cotton's Records 12.13.348 Post 60. in one and the same Room but afterwards they were divided to sit in several Rooms and this was at the Request of the Commons but yet still they remain but one Court And of all this I have seen the Records one in the Time of H. 1. where all of them did sit together and mention is there made of the Degrees of their Seats so in the Time of E. 3.39 No Man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there For it is not only a personal Offence in him that sitteth there without Authority but a publick Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass'd of no great Weight In 50 Ed. 3. all the Lords appeared in Person and not one by
of the Realm and every particular Member thereof either in Person or by Representation upon their own Free Elections are by the Laws of this Realm deemed to be personally present 1 Jac. 1. c. 1. Sir Edward Cook in his Epistle to the 9th Report says There is a threefold End of this great and honourable Assembly of Estates First That the Subject might be kept from offending that is That Offences might be prevented both by good and provident Laws and by the due Execution thereof Secondly That Men might live safely in Quiet And thirdly That all Men might receive Justice by certain Laws and Holy Judgments that is to the End that Justice might be the better administred that Questions and Defects in Laws might be by this High Court of Parliament planed and reduced to a Certainty and that Claims of Right might be adjudged and determined This Court being the most supream Court of this Realm is a Part of the Frame of the Common Laws and in some Cases doth proceed legally according to the ordinary Course of the Common Law The House of Lords cannot exercise any Power as an House of Parliament Sir R. Atkin's Argument f 51. or as a Court for Error without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Ib. 59. Parliaments ought to be very frequent Before the Conquest as it is untruly call'd by the Law Parliaments were to be held twice a Year as appears by King Edgar's Laws So it was ordained by King Alfred By the Stat. of 4 Ed. 3. c. 14. Parliaments ought to be once a Year and oftner if need be And in 36 Ed. 3. c. 10. to be once a Year without Restriction if need be By 16 Car. 2. c. 1. these Acts are declared to be in Force And further it is declared and enacted That the holding of Parliaments shall not be discontinued above three Years at the most The Parliament is a Court of very great Honour and Justice Plow Com. 398. 11 Col. 14 The Parliament can do no Wrong 6 Col. 27. Sir R. Atkyne Arg. 60. of which no Man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very very high Offence but the higher it is the more proper it is for their Judicature and that Court is arm'd with a Power to punish the highest Offences and the highest Offenders Yet a Parliament may err Plow Com. 397. 9 Col. 106. Ibid. for they are not infallible but the Law hath provided a Remedy against those Errors and a way to reform them A subsequent Parliament may reform the Errors of a preceeding Parliament But to say that they will be partial Ibid. or unjust or corrupt or do any Thing out of Malice is to raise a Scandal upon the whole Nation Ibid whose Representative they are If any Offence whatever be committed in the Parliament by any particular Member See Husband's Collections ante p. 1. p. 67. it is an high Infringment of the Right and Privilege of Parliament for any Person or Court to take the least Notice of it till the House it self either has punish'd the Offender or referred them to a due or proper Course of Punishment To do otherwise would be to make the Highest Court an Offender and to charge them with Injustice Their Right and Priviledge so far extends Ib. 61. that not only what is done in the very House sitting the Parliament but whatever is done relating to them or in pursuance of their Order during the Parliament is no where else to be punish'd but by Themselves or a succeeding Parliament tho done out of the House Either House doth ever for the most part shew it self so careful to keep firm Correspondence with the other Sir Simon d'Ewes Journal 186. as that when a Bill hath pass'd either of the said Houses and is sent to the other it doth for the most part pass and is neither dash'd nor alter'd without very great Cause upon mature deliberation and usually also not without Conference desir'd and had thereupon that so full Satisfaction may be given to that House from which the Bill so rejected or alter'd was sent Pessima Gens humani Generis always abhorr'd a Parliament Preface to Petyt's Miscel Parlementar And the Reason thereof is demonstrative because they all knew they shou'd then be call'd to an impartial and strict Account and be punish'd according to their Demerits It was said by the Lord Bacon to Sir Lionel Cranfeild Ibid. newly made Lord Treasurer That he would recommend to his Lordship and in him to all other great Officers of the Crown one considerable Rule to be carefully observ'd which was Remember a Parliament will come The King at no Time stands so highly in his Estate Royal Petyt 's Miscel Parliament 6. Vide Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together in one Body Politic So as whatsoever Injury during that Time is offer'd to the meanest Member of the House is to be judged as done against the King's Person and the whole Court of Parliament The Prerogative of Parliament is so great Ibid. That all Acts and Processes coming out of any inferior Courts must cease and give place to that the highest Statutes in England are made not only by the Princes Pleasure Fortescue 42. but also by Assent of the whole Realm So that of Necessity they must procure the Wealth of the People and in no wise tend to their hindrance It cannot otherwise be thought Ibid. but that they are replenish'd with much Wit and Wisdom seeing they are ordain'd not by the Device of one Man alone or of a hundred wise Counsellors only but of more than three hundred learned Men now 558 that ought to be freely Elected by the People Acts of Parliament are made with such Gravity Wisdom 11. Co. 63. Fortesc c. 18. c. 40. and Universal consent of all the Realm and for advantage of the publick Wealth that they are not from the General and ambiguous Words of a Subsequent Act to be abrogated Acts of Parliament have been tender of racking the King's Subjects for Words 1. Mod. Rep. 234 and the Scripture Discountenances Mens being made Transgressors for a Word Every Proviso in an Act 1. Siderf 155. is not a determination what the Law was before for they are often added for the Satisfaction of those that are ignorant of the Law The King of England can neither by himself or his Ministers Fortescu p. 84. impose any Tallages or other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament CHAP. III. Of the Power and Authority of Parliaments THE Parliamentary Power Hollinsh Vol. 1. p. 173. as it is in the Legislative Capacity consisting of the Agreement and Act of all the three Estates King Lords and Commons to make it Binding it imports no
utterly disabled from being a Justice of Peace By Parliament Ib. p. 46. the Spanish Frauds were discovered and by an Act of Parliament the two Treaties i. e. touching the Spanish Match and for restoring the Palatinate both which had cost the King and his Subjects much Money and much Blood were Dissolved and Annihilated And we may remember says the same Author That that sage Councellor of State Sir William Cecil Lord Burley and Lord Treasurer of England was oft Times heard to say He knew not what a Parliament might not do which saying was approved by K. James 1. and is cited by him in one of his publick Speeches The Parliament says one is of an absolute and unlimited Power in all Things Temporal within this Nation Sir Robers Atkins's Argument p. 50. Bract. fo 34. Fleta p. 2. 17. Another says Parliamentum omnia potest Bracton and Fleta both affirm Rex habet Superiorem in Regno Scilicet Curiam suam i. e. Comites Barones doubtless the Lords and Commons qui apponuntur Regi ut si Rex sine Fraeno i. e. sine Lege fuerit Debent ei Fraenum apponere c. Nay some great Authors have asserted Quod Concilium hoc i. e. Parliamentum Facultatem habet Deponendi Regem Malum Substituendi Novum See Mat. Paris per Watts pag. 498. Knighton de Eventibus Angliae p. 2683. in the Decem. Scriptores and that this Power is claimed ex antiquo Statuto c. Knighton has a remarkable Passage concerning the Execution of that antient Statute in the Cases of E. II. and R. II. which at this Time I forbear to Transcribe or Translate Note It appears by Mat. Paris p. 99. c. That the Commons were then i. e. 15 H. II. summoned to the Parliament held at Clerkenwell and that they also were a Part of the Parliament in the Time of K. H. I. See before p. 34. 35. c. CHAP. IV. Of the House of Lords in general THE House of Peers Rushw eol vol. 3. part 1. p. 777. are the hereditary Counsellors of the King and Kingdom as the House of Commons are the representative Body of the whole Commons of the Kingdom There certainly cannot in the whole World be seen a more illustrious Court Nalson 566. than this high and honourable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes's Jour 11. Col. 1. till he be full One and twenty Years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty one Years at least A Bishop elect may sit in Parliament Ibid. ante 3 4 43 44. as a Lord thereof i. e. if called thereto by Writ Q. For he is not properly a Peer or even a Bishop till his Temporalties are granted to him If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in communi illo Consilio for the Good of his Country It lies in the Favour of the Prince Sir Simon d'Ewes Journal 2.4 Col. 2. to make Heirs of Earldoms Members of the upper House by summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Archbishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshal's Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward See the Statute No Man ought to sit in that high Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament Id. 44. without License it is an Offence done out of the Parliament and is finable by the Law 4 June 1642 Rushw Col. Vol. 3. part 1.737 Post upon an Order of the House of Lords to those Lords that had left the Parliament and repaired to the King at York requiring their Appearance as Delinquents in the Answer they returned to it there are these Words We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanors whatsoever no Peer is to answer to the first Charge but in his own Person and not upon the first Charge to come to the Bar. Any Lord of the Parliament 4 Inst 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601 Towns Col. 135. Vide Sir Simon d'Ewes Journal 605. agreed by the Lords That the antient Course of the House is That the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information Anno Domini 1626 Rushw Col. Vol. 1. p. 365. 2 Car. 1. resolved upon the Question by the whole House Nemine dissentiente That the Priviledge of this House is That no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprisoned or restrained without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace N. B. This was upon the King's having committed the Earl of Arundel to the Tower without expressing the Cause of his Commitment All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. a fortiori do appertain to all the Lords of the upper House for their Persons are not only free from Arrests during the Parliament but during their Lives Nevertheless the original Cause is by Reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the upper House when any Difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least Use of them save only to shew prove and continue the Right which the Lords of the upper House have both to be summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then always the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the antient Treatise Ibid. 6. Col. 1. Modus tenendi Parliamentum That if a Peer neither came to the Parliament nor sent
subscribing them England to be entred and filed in Parchment Rolls provided by the Clerk of the House and each Member to pay only 12 d. for every such Entry That the said Act 30 Car. 2. Stat. 1 W. M. c. 1. Members of the House of Commons qualified to sit and vote by taking the Oaths of Allegiance and Supremacy appionted by this Act instead of the old ones now repealed and by subscribing the Test according to the Limitations c. of the preceding Statute 30 Car. 2 and all other Acts of Parliament as to so much of the said Act or Acts only as concerns the taking the Oaths of Supremacy and Allegiance or either of them in the said Acts respectively mentioned by any Member or Members of the House with relation to their sitting and voting in Parliament are hereby repealed to all Intents and Purposes any Thing in the said recited Act or Acts to the contrary And In all future Parliaments the Oaths in this Act mentioned and the Declaration in the Act 30 Car. 2. mentioned shall be taken made subscribed and repeated by every Member of the House within the Time and in the same Manner and Form and under the Penalties and Disabilities as the said Oaths of Allegiance and Supremacy and the said Declaration by the said Act of Car. 2. are limited ordained and appointed and not at any other Time England or in any other Manner to enable them to sit and vote in Parliament any Thing in the said Act or Acts to the contrary That Elections of Members of Parliament ought to be Free Stat. 1 W. M. c. 2. The claim of Right That the Freedom of Speech and Debates on Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament Enacted accordingly That no Member of the House of Commons shall at any Time be concerned directly or indirectly Sta. 5 6 W. M. ch 7. Members of the House of Commons to be no ways concerned in Duties or Aids to be granted by Parliament except Commissioners of the Treasury Customs Excise and Land Tax or any other in Trust for him in the farming collecting or managing any of the Duties or other Aids that hereafter shall be granted by Act of Parliament except the Commissioners of the Treasury and the Officers and Commissioners for managing the Customs and Excise not exceeding the present Number in each Office and Commissioners of the Land Tax Quere the Novelty of this Exception That any Member or Members of the House of Commons Stat. 5 6 W. and M. c. 20. Members of the House of Commons may be Members of the Bank may be a Member or Members of the Corporation of the Governor and Company of the Bank of England England That o Collector Supervisor Gauger or other Officer or Person whatsoever concerned or imployed in the charging levying or managing the Duties of Excise or any Branch or Part thereof shall by Word Officers of the Excise not to intermedle c. Message or Writing or in any other Manner endeavour to persuade any Elector to give or dissuade any Elector from giving his Vote for the Choice of any Person to be a Knight of the Shire Citizen Burgess or Baron of any County City Borough or Cinque-Port and every Officer or other Person offending therein shall forfeit the Sum of 100 l. one Moiety thereof to the Informer the other Moiety to the Poor of the Parish where such Offence shall be committed to be recovered by any Person that shall sue for the same by Action of Debt Bill Plaint or Information in any of their Majesties Courts of Record at Westminster in which no Essoign Protection Privilege or more than one Imparlance shall be allowed and every Person convict on Suit of the said Offence shall be for ever incapacitated to bear any Office or Place of Trust under the Crown That no Persons hereafter to be elected to serve in Parliament for any County City Town England Borough St. 7. W. 3. c. 4. No Persons to be elected after the Teste of the Writ shall by themselves or any other at their charge before the Election give promise or oblige themselves to give any thing to any Person having a Vote in particular or to any County or Place in general in order to be elected Port or Place within the Kingdom of England Dominion of Wales or Town of Berwick upon Tweed after the Teste of the Writ of Summons or after the Teste or issuing out or ordering of the Writ or Writs of Election upon the calling or summoning of any Parliament or after any such Place becomes vacant shall or do hereafter by himself or themselves or by any other Ways or Means on his or their Behalf or at his or their Charge before his or their Election in England Wales or Berwick directly or indirectly give present or allow to any Person having Voice or Vote in such Election any Money Meat Drink Entertainment or Provision or make any Present Gift Reward or Entertainment or shall make any Promise Agreement Obligation or Engagement to give or allow any Money Meat Drink Provision Present Reward or Entertainment to or for any such Person in Particular or to any such County City Town Borough Port or Place in general or to or for the Use Advantage Benefit Imployment Profit or Preferment of any such Person or Place in Order to be elected England or for being elected to serve in Parliament for such County City Town Borough Port or Place And that every Person so giving presenting or allowing Such Persons so giving promising c. disabled to serve as never elected or returned making promising or engaging doing acting or proceeding shall be and are hereby disabled and incapacitated upon such Election to serve in Parliament for such County City Town Borough Port or Place and shall be deemed and taken no Member in Parliament and shall not act sit or have any Vote or Place in Parliament but shall be and are to all Intents Constructions and Purposes as if they had been never returned or elected c. That all false Returns willfully made of any Knight of the Shire Stat. 7 and S. W. 3. c. 7. continued by St. 12. 13. W. 3. c. 5. False Returns of Knights Citizens c. illegal and prohibited Citizen Burgess Baron of the Cinque-Ports or other Member to serve in Parliament are against Law and are hereby prohibited The Party grieved by any false return An Action given to any duly elected against the Officer and Procurer of a false Return or Return contrary to the last determination of the Kight of Election in any Court at Westminster with double Damages and full Costs and contrary to the last Determination of the Right of Election of the House of Commons which is also adjudg'd a false Return to wit every Person that shall be duly Elected to Parliament for any County City Borough Cinque-Port or Place England by such false Return may Sue
the Officers and Persons making or procuring the same and every or any of them at his Election in any of his Majesty's Courts of Record at Westminster and shall recover double the Damages he shall sustain by reason thereof together with his full Costs of Suit And if any Officer shall willfully Like Action given the elected against Officer c. falsly c. making double Returns and the Prosecuters of such Returns Contracts Bonds c. given to procure the Return of any Members adjudged void and such Members as make or give them to procure any false or double Return forfeit 300 l. One third to the King another to the Poor of the County City c. and a third to the Informer with his Costs to be recovered by Action of Debt c. wherein no Essoign c. and but one Imparlance falsly and maliciously Return more Persons than are required to be chosen by the Writ or Precept on which any Choice is made the like Remedy against him or them and the Party or Parties that willingly procure the same or any of them by the Party grieved at his Election All Contracts Promises Bonds and Securities whatsoever hereafter made or given to procure any Return of any Member to Parliament or any thing relating thereunto shall be adjudged void and whoever makes or gives such Contract Security Promise or Bond or any Gift or Reward to procure such false or double Return shall forseit the Sum of 300 l. one third part to his Majesty another third part to the Poor of the County City Borough or Place concerned England and one third part to the Informer with his Costs to be recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed nor more than one Imparlance The Clerk of the Crown to keep a Book of Entry of every single and double Return Clerk of the Crown to keep Books of Entry of Returns c. and of every Alteration and Amendment in every such Return whereto all Persons are to have access and take Copies of so much as desir'd at a reasonable Fee The Parties prosecuting such Suit Candidates may give such Book or a true Copy thereof in Evidence and have like Advantage as by producing the Record itself And if the Clerk of the Crown makes not such Entry within six Days after any Return or alters any Return without Order of the House of Commons or gives a Certificate of any Person not returned or wilfully neglects or omits his Duty herein he shall forfeit 500 l. for each Offence to the parth grieved Candidate to be recovered as aforesaid and lose his Office and be for ever incapable of holding it Every Information or Action upon this Statute England shall be brought within two Years after the cause of Action shall arise Informations or Actions on this Statute to be brought within 2 Years and not after That upon every Election to be made of any Knight or Knights of the Shire in case a Poll shall be requir'd the Sheriff or his Under-Sheriff shall appoint for each Candidate such one Person as shall be nominated to him by each Candidate Candidates for Knights of the Shire may nominate Persons to be Inspectors of the Poll and may require each Freeholder to be sworn before admitted to Poll. to be Inspectors of every Clerk who shall be appointed for taking the Poll and every Freeholder before he is admitted to Poll at the same Election shall if required by the Candidates or any of them first take the Oath in this Act contained Vide ante And if any Person do unlawfully and corruptly procure or suborn any Freeholder or Person to take the said Oath in order to be Polled Any Person procuring a Freeholder or other to take the Oath for the Poll whereby he commits Perjury and convicted of such Subornation for every Offence forfeits 40 l. and be incapacitated as a Witness till such Judgment reversed and for want of 40 l. imprisoned half a Year and stand in the Pillory an Hour per Stat. 5 Eliz. ch 9. whereby he shall commit wilful and corrupt Perjury and shall be thereof convicted he for every such Offence shall incur the like Pains and Penalties as are in and by one Act made in the 5th Elizabeth c. enacted against all such who shall c. Suboru or Procure any Person to commit any unlawful and corrupt Perjury contrary to the said Act. England The said Sheriff Without the Candidates consent the County Court not to be adjourned from the place of Election nor the Poll discontinued or in his Absence his Under-Sheriff or such as he shall depute shall not adjourn the County-Court from the Place of Election to any other Town or Place within the same County without consent of the Candidates but shall duly and orderly proceed to take the Poll from Day to Day and Time to Time without any further or other Adjournment without the Consent of the Candidates for such Adjournment Every Sheriff Any Person may demand a Copy of any Poll which the Sheriffs Mayors c. are required to deliver paying reasonably for writing it To each Party grieved Mayors Sheriffs c. for every wilful offence forfeit 500 l. to be recover'd by such Party his Executors or Administrators with full Costs by Action of Debt c. wherein no Essoign c. Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept shall belong for the electing Members to Parliament shall forthwith deliver to such Person or Persons as shall desire the same a Copy of the Poll taken at such Election paying only a reasonable Charge for writing And every Sheriff Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for electing Members to Parliament doth belong for every wilful Offence contrary to this Act shall forfeit to every Party so aggrieved the Sum of 500 l. to be recovered by him or them England his or their Executors or Administrators together with full Costs of Suit and for which he or they may Sue by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection Wager of Law Privilege or Imparlance shall be allowed No Person shall be capable of being elected a Member to Parliament who is not of the Age of 21 Years None shall be elected under the age of 21 Years The choice of any elected under that Age declared void and such Minor sitting c. in Parliament shall incur like Penalties as if sitting c. unchosen or returned and every Election or Return of any Person under that Age is declared Null and Void And if any such Minor chosen shall presume to sit or vote in Parliament he shall incur such Penalties and Forfeitures as if he had presumed to Sit and Vote in Parliament without being chosen or returned The Sheriff of
the County of Southampton Candidates for the County of Southampton may demand of the Sheriff after the end of the Poll at Winchester an Adjournmens to Newport in the Isle of Wâ—ight or his Deputy at the request of one or more of the Candidates for Election of a Knight or Knights for that County shall adjourn the Poll from Winchester after every Freeholder then and there present is Polled England to Newport in the Isle of Wight for the Ease of the Inhabitants of the said Island any thing in this Act contained to the contrary No Person which shall refuse to take the Oaths of Allegiance and Supremacy St. 7 8 W. 3. c. 27. Candidates may require the Sheriff or Chief Officer on the Poll at any Election to administer the Oaths of Allegiance and Supremacy to Electors and if Quakers the Declaration of Fidelity and on refusal not to admit them to Vote directed by an Act made in the First Year of His present Majesty and the late Queen Mary or being Quakers shall refuse to subscribe the Declaration of Fidelity directed by one other Act made in the said First Year of His present Majesty and the late Queen to be administred on the Poll by the Sheriff or Chief Officer at any Election at the Request of any one of the Candidates shall be admitted to give any Vote for the Election of any Knight of the Shire Citizen Burgess or Baron of the Cinque-Ports to serve in Parliament Enacted St. 11. 12. W. 3. c. 2. Members of the House of Commons while such by themselves Deputies or Trustees taking or executing any Office in the Excise or Appeals thereof declared incapable of sitting c c. That if any Member of the House of Commons during the time of his being a Member of Parliament by his Deputy or any other in trust for him or his benefit take enjoy or execute any Office Place or Imployment touching or concerning the farming managing or collecting the Duty of Excise or determing Appeals concerning the said Duty or comptrolling or Auditing the Accompts of the same such Person is hereby declared and enacted to be absolutely uncapable of siting voting or acting as a Member of the House of Commons in such Parliament That after the Limitation of the Crown to the Princess Sophia of Hanover St. 12 and 13 W. 3. c. 2. For the Limitation of the Crown to the House of Hanover by this Act shall take effect no Person born out of the Kingdoms of England Scotland or Ireland or the Dominions thereunto belonging although he be naturaliz'd or made a Denizen except such as are born of English Parents shall be capable to be a Member of the House of Commons Enacted Members of the House of Commons incapacitated from being Commissioners or Farmers of the Customs or to hold in their own or others Names or by others in trust or execute by Deputies any Office in the Customs c. That no Member of the House of Commons shall be capable of being a Commissioner or Farmer of the Customs or of holding or enjoying in his own Name or in the Name of any other Person in Trust for him or for his Use or Benefit or of Executing by himself or his Deputy any Office Place or Employment touching or concerning the Farming Collecting or Managing the Customs Vide ante of Officers of the Excise If any Member of the House of Commons shall Members while such so taking or executing any such Office declared incapable of sitting c. during the time of his being a Member of Parliament by himself or his Deputy or any other in Trust for him or for his Benefit take enjoy or execute any Office Place or Employment touching or concerning the Farming Managing or collecting the Customs such Person is hereby declared and enacted to be absolutely incapable of Sitting Voting or Acting as a Member in such Parliament Enacted St. 1â— 14 W. 3. c. 6. Members of the House of Commons not to vote or sit there during any Debate after their Speaker chosen until they have taken and subscribed the Abjuration between 9 and 4 in a full House c. That none which shall be a Member of the House of Commons shall Vote in the House of Commons or Sit there during any Debate in the said House of Commons after their Speaker is chosen until such Member shall from time to time take the Oath mentioned in this Act commonly called the Abjuration and altered by Statute 1 Annae ch 22. again by Stat. 4 5 Annae ch 8. again by Stat. 6 Annae ch 7. And subscribe the same in manner following that is to say the said Oath shall be in this and every other succeeding Parliament solemnly and publickly made and subscribed between the Hours of Nine in the Morning and Four in the Afternoon by every such Member of the House of Commons at the Table in the middle of the said House and whilst a full House is there duly Sitting with their Speaker in his Chair And If any Member shall presume to Vote Members voting not having so taken c. the said Oath adjudged Popish Recusants convict and forfeit as such and disabled to hold any Office or Place of Profit or Trust in England or its Dominions to sit or vote in Parliam bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and to forfeit 500 l. to any that will sue by Action of Debt c. where no Essoign c. shall lie not having taken the said Oath and subscribed the same as aforesaid he shall from thence be deemed and adjudged a Popish Recusant convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant convict and shall be disabled to hold or execute any Office or Place of Profit or Trust Civil or Military in England Ireland Wales or in any of the Islands or Plantations belonging and shall be disabled from thenceforth to sit or Vote in Parliament or to use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act 500 l. to be recovered and received by him or them that shall Sue by any Action of Debt Suit Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection or Wager of Law shall lie That no Register for the Registering Memorials of Deeds Stat. 2. 3 Annae c. 4. The Register for the West-Riding of York or his Deputy incapacitated Vide post p. 218. Conveyances and Wills within the West-Riding in the County of York or his Deputy for the Time being be capable of being chosen a Member to Parliament That no Person St. 4 5 Annae c. 8
No Candidate who shall have in his own Name or in trust for him or his Benefit any new Officers or Place of Profit hereafter to be created or be a Commissioner or Sub-Commissioner Secretary or Receiver of Prizes Commissioner of the Armies Accounts Commissioner of the Sick and wounded Agent for any Regiment Commissioner for Wine Licences Governor or Deputy-Governor of any of the Plantations Commissioner in any out-Port or have a Pension from the Crown during Pleasure shall be capable of being elected or sitting c. as a Member who shall have in his own Name or in the Name of any Person or Persons in Trust for him or for his Benefit any new Office or Place of Profit whatsoever under the Crown which at any time hereafter shall be created or erected nor any Person who shall be a Commissioner or Sub-Commissioner of the Prizes Secretary or Receiver of the Prizes nor any Comptroller of the Accompts of the Army nor any Commissioner of Transports nor any Commissioner of the Sick and Wounded nor any Agent to any Regiment nor any Commissioner for Wine Licences nor any Governor nor Deputy-Governor of any of the Plantations nor any Commissioner of the Navy employed in any of the Out-Ports nor any Person having any Pension from the Crown during Pleasure shall be capeable of being Elected or of sitting or voting as a Member of the House of Commons If any Person being chosen a Member of the House of Commons shall accept of any Office of Profit from the Crown during such time as he shall continue a Member his Election shall be Members chosen accepting any Office of Profit from the Crown while they continue Members their Election void and a new Writ to issue but capable of being again Elected and is hereby declared to be Void and a new Writ shall issue for a new Election as if such Person so accepting was naturally Dead Nevertheless such Person shall be capable of being again Elected as if his Place had not become Void as aforesaid No greater Number of Commissioners shall be made for the Execution of any Office than have been employed in the Execution of any such Office from the first Day of the Session Nothing herein contained shall extend to any Member of the House of Commons being an Officer in Her Majesty's Navy or Army Members being Officers in the Navy or Army receiving any New Commission in either not incapacitated who shall receive any new or other Commission in the Navy or Army respectively If any Person hereby disabled or declared to be incapable to Sit or Vote in Parliament Members hereby incapacitated if returned their Election void and presuming to sit and vote forfeit 500 l. to any that will sue by Action of Debt c. wherin no Essoin c and but one Imparlance shall nevertheless be returned as a Member to serve for any County City Town or Cinque-Port in any such Parliament such Election and Return are declared to be Void to all Intents and Purposes and if any Person disabled or declared incapable by this Act to be Elected shall presume to sit or vote as a Member of the House of Commons in any Parliament such Person so sitting or voting shall forfeit 500 l. to be recovered by such Person as shall Sue by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed and only one Imparlance Forty five shall be the Number of the Representatives of Scotland in the House of Commons of the Parliament of Great-Britain G. Britain Stat. 5 Annae c. 8. Every Member of the House of Commons of the Parliament of Great-Britain until the Parliament of Great-Britain shall otherwise direct shall take the respective Oaths appointed to be taken instead of the Oaths of Allegiance and Supremacy The Union Act. by an Act of Parliament made in England in the First Year of the Reign of the late King William and Queen Mary The new Oaths of Allegiance and Supremacy And make subscribe and audibly repeat the Declaration mentioned in an Act of Parliament made in England in the Thirtieth Year of the Reign of King Charles the Second The Test and shall take and subscribe the Oath mentioned in an Act of Parliament made in England in the First Year of Her Majesty's Reign The Abjuration At such time and in such manner as the Members of both Houses of Parliament of England are by the said respective Acts directed to take make and subscribe the same upon the Penalties and Disabilities in the said respective Acts contained And it is declared and agreed that these Words This Realm The Crown of this Realm and the Queen of this Realm mentioned in the Oaths and Declaration contained in the aforesaid Acts which were intended to signify the Crown and Realm of England shall be understood of the Crown and Realm of Great-Britain and that in that Sense the said Oaths and Declaration be taken and subscribed by the Members of the Parliament of Great Britain None shall be capable to be elected a Representative for any Shire or Borough of Scotland but such as are twenty one Years of Age complete None capable to be elected for any Shire or Borough of Scotland under 21 Years nor unless a Protestant Papists and such as refuse the Formula excluded Like Incapacity on Candidates not at this Time capable by the Laws of Scotland Stat. 6. An. c. 7. and Protestant excluding all Papists or such who being suspect of Popery refuse to swear and subscribe the Formula contained in the third Act made in the 8th and 9th Sessions of King William's Parliament in Scotland nor shall be capable to be elected to represent a Shire or Burgh in the Parliament of Great Britain for Scotland except such as were at the Time of passing this Act capable by the Laws of Scotland to be elected as Commissioners for Shires or Boroughs to the Parliament of Scotland A like Clause for incapacitating Persons to be elected c. Members of Parliament and likewise for incapacitating Members of Parliament with like Restrictions Exceptions and Penalties throughout the united Kingdom as are contained in the Statute 4 5 Annae c. 8. relating to Candidates and Members for the Parliament of England And further Candidates disabled to be elected or Members to sit c. in the Parliament of England under like Disabilities as to any Parliament of Great Britain That every Person disabled to be elected or to sit or vote in the House of Commons of any Parliament of England shall be disabled to be elected or to sit or vote in the House of Commons of any Parliament of Great Britain Except the present Commissioners for disposing the Equivalent by the present or any other Commission That every Person who shall refuse to take the Oath of Abjuration St. 6 Ann. c. 23. Candidates or others may require the Sheriff President of the Meeting c. on the Poll at any Election of Members in
Great Britain or of Commissioners for choosing Burgesses in Scotland to administer the Abjuration upon Oath or Affirmation to Quakers and Electors refusing it incapable to vote or being a Quaker shall refuse to declare the Effect thereof upon his solemn Affirmation as directed by an Act of Parliament made 7 W. 3. to be administred by the Sheriff President of the Meeting or chief Officer taking the Poll at any Election of Members to serve in the House of Commons for any Place in Creat Britain or Commissioners for choosing Burgesses for any Place in Scotland at the Request of any Candidate or other Person present shall not be capable of giving any Vote for any Election of any such Member to serve in the House of Commons for any Place in Great Britain or Commissioner to choose a Burgess for any Place in Scotland That no Register for the Registring Memorials of Deeds St. 6 Ann. c. 35. The Register for the East-Riding of Torâ—shire c. or his Deputy incapacitated Conveyances Wills c. within the East-Riding of the County of York or the Town and County of Kingston upon Hull or his Deputy for the Time being be capable of being chosen a Member to serve in Parliament Vide ante 212. That no Person shall be capable to sit or vote as a Member of the House of Commons St. 9 Ann. Persons incapacitated to sit or vote in the House of Commons who have not an Estate Freehold or Copyhold for Life or greater in England of 600 l. for a Knight of the Shire manfully and 300 l. for a Citizen Burgess c. and if any such elected c. the Election c. void for any County City c. within that Part of Great Britain called England c. who shall not have an Estate Freehold or Copyhold for his own Life or for some greater Estate either in Law or Equity to his own Use in Lands Tenements or Hereditaments above what will satisfy and clear all Incumbrances within that Part of Great Britain called England c. of the annual Value of six hundred Pounds above Reprizes for every Knight of a Shire and of three hundred Pounds above Reprizes for every Citizen Burgess c. And if any Persons elected or returned to serve in any Parliament as a Knight of a Shire or as a Citizen Burgess c. shall not at the Time of such Election and Return be seized of or intituled to such an Estate before required such Election and Return shall be void Nothing in this Act contained shall extend to make the eldest Son or Heir Apparent of any Peer or Lord of Parliament Eldest Son or Heir Apparent of a Peer or Person qualified to serve as a Knight of a Shire excepted Universities in England also excepted or of any Person qualified by this Act to serve as Knight of a Shire uncapable of being elected and returned and sitting and voting as a Member of the House of Commons Nor extend to either of the Universities in that Part of Great Britain called England but that they may elect and return Members to represent them in Parliament as heretofore they have done No Person shall be qualified to sit in the House of Commons No Person qualified by Virtue of a Mortgage unless in Possession of the mortgaged Premisses for seven Years before his Election by virtue of any Mortgage whereof the Equity of Redemption is in any other Person unless the Mortgagee shall have been in Possession of the mortgaged Premisses for seven Years before the Time of his Election Every Person except as aforesaid who shall appear as a Candidate Candidates to be sworn to their Estates if required by any other Candidate or two Electors or shall by himself or any others be proposed to be elected shall upon Request at the Time of such Election or before the Day to be prefixed in the Writ of Summons for the Meeting of the Parliament by any other Person who shall stand Candidate at such Election or by any two or more Persons having Right to vote at such Election take a Corporal Oath in the Form in this Act contained which see ante The respective Oaths aforesaid shall be administred by the Sheriff or Under-Sheriff Before the Sheriff or other Officer by whom the Poll is to be taken or Return made or 2 or more Justices of the Peace The Election and Return of Candidates refusing to take the Oath void for any County or by the Mayor Bailiff or other Officer or Officers for any City Burrough c. to whom it shall appertain to take the Poll or make the Return at such Election or by any two or more Justices of the Peace within England c. And if any of the said Candidates c. shall wilfully refuse to take the Oath the Election and Return of such Candidate or Person shall be void That from and after the Determination of this present Parliament 2 St. 12 Ann. No Conveyance or Right whereon Infeoffment is not taken and Seisin registred a Year before the Teste of the Writs shall intitle the Person to be elected in any Shire or Stewartry in Scotland The like as to Inoffments not taken a Year before the Date of the Warrant for a new Writ during 〈◊〉 Continuance of a Parliament Any Elector present suâ—pecting Persons to have Estates in Trust may require the Praeses of the Meeting to swear such to their Estates no Conveyance or Right whereupon Infeoffment is not taken and Seisin registrated one Year before the Teste of the Writs for calling a new Parliament shall upon Objection made in this Behalf intitle the Person so infeost to be elected at that Election in any Shire or or Stewartry in Scotland and in case any Election happen during the Continuance of a Parliament no Conveyance or Right whatsoever whereupon Infeoffment is not taken One Year before the Date of the Warrant for making out a new Writ for such Election shall upon Objection made in that Behalf intitle the Person so Infeoft to be elected at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained intituled The Form of the Freeholders c. Oath to be taken upon Objection made by Stat. 12. Annae and is the same mutatis mutandis to any Elector and the said Praeses is required to administer the same In case such Elector Electee Q. refuse to Swear On Refusal to swear and subscribe the Oath incapable to be elected Stat. 1 G. 1. c. 13. and also to subscribe the said Oath such Person or Persons shall not be capable of being Elected at such Election That after the 29th of September 1715 no Person that now is or hereafter shall be a Member of the House of Commons shall Vote in the House of Commons or
and Time to Time without any further or other Adjournment without the Consent of the Candidates until all the Free-holders then and there present shall be polled England Every Sheriff Under-Sheriff Mayor Sheriffs Mayors c. to deliver to any Person desiring it a Copy of the Poll paying reasonably for writing it Sheriffs Mayors c. for every wilful Offence contrary to this Act forfeits to each Party grieved 500 l. to be recovered by him his Executors c. with full Costs by Action of Debt c wherein Essoign c. to be allowed Bailiff and other Officer to whom the Execution of any Writ or Precept shall belong for the electing Members to serve in Parliament shall forthwith deliver to such Person or Persons as shall desire the same a Copy of the Poll taken at such Election paying only a reasonable Charge for writing the same and every Sheriff Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for electing of Members doth belong for every wilful Offence contrary to this Act shall forseit to every Party so aggrieved the Sum of five hundred Pounds to be recovered by him or them his or their Executors or Administrators together with full Costs for which he or they may sue by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection Wager of Law Privilege or Imparlance shall be allowed Every Return of any Person under the Age of twenty one Years The Return of any Person chosen under 21 Years void is hereby declared to be null and void All County Courts for the County of York or any other County Courts England which heretosore used to be held on a Monday County Courts for Yorkshire and others used to be held on a Menday to be called and held on a Wednesday shall be called and begun upon a Wednesday and not otherwise any Custom or Usage to the contrary The Sheriff of the County of Southampton Sheriff c. of Hampshire at the Request of any Candidate to adjourn after the End of the Poll at Winchester to Newgate in the Isle of Wight or his Deputy at the Request of one or more of the Candidates for Election of a Knight or Knights of that County shall adjourn the Poll from Winchester after every Frecholder then and there present is polled to Newport in the Isle of Wight for the Ease of the Inhabitants of the said Island any thing in this Act to the contrary That no Person which shall refuse to take the Oaths of Allegiance and Supremacy directed by an Act made in the first Year of His present Majesty and the late Queen Mary St. 7 8. W. 3. c. 27. Sheriffs c. on the Poll at any Election to administer the Oaths of Allegiance and Supremacy to Electors and if Quakers the Declaration of Fidelity at the Request of any Candidate and on Refusal not to admit them to vote or being Quakers shall refuse to subscribe the Declaration of Fidelity directed by one other Act of Parliament made in the said first Year of the Reign of His present Majesty and the late Queen which Oaths and Subscription respectively the Sheriff or chief Officer taking the Poll England at the Request of any one of the Candidates are required to administer shall not be admitted to give any Vote for the Election of any Knight of the Shire Citizen Burgess or Baron of the Cinque-Ports to serve in Parliament That the Sheriff or other Officer having the Execution and Return of any Writ to Parliament St. 10 11 W. 3. c. 7. Sheriffs c. by themselves or Deputies on or before the Day any Parliament shall called to meet and not exceeding fourteen Days after any Election made to make his Return to the Clerk of the Crown c. shall on or before the Day that any suture Parliament shall be called to meet and with all convenient Expedition not exceeding fourteen Days after any Election made by virtue of any new Writ either in Person or by his Deputy make Returns of the same to the Clerk of the Crown in Chancery to be by him filed c. and pay to the Clerk of the Crown 4 s. for every Knight of the Shire and 2 s. for every Citizen Burgess c. which the Sheriff c. shall charge to the King and have allowed upon his Account See the Stat. c. 7 8. W. c. 25. p. 107. The proper Officer of the Cinque-Ports shall be allowed six Days from the Receipt of such Writ for the Delivery very of the Precept according to the Purport of the Act 7 and 8 W. III. G. Britain c. 25. any thing in the said Act or any other Law Statute or Usage to the contrary Every Sheriff or other Officer aforesaid who shall not make the Returns according to the true Intent and Meaning of this Act Sheriffs c. not making Returns accordingly to forfeit for each Offence 500 l. one Moiety to the King the other to him that will sue by Action of Debt c. wherein no Essoign c. to be allowed and but one Imparlance shall forfeit for every such Offence the Sum of 500 l. one Moiety to His Majesty and the other Moiety to him or them that will sue for the same to be recovered by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection or Wager of Law allowed nor more than one Imparlance That when any Parliament shall hereafter be summoned or called St. 6. Annae c. 6. Writs to issue to the respective Sheriffs or Stewarts for choosing the 45 Representatives of Scotland to Parliament Sheriffs c. thereon forthwith to give Notice of the Time of Election for the Shires Clerks of the Meetings forthwith to return the Names of the elected to the Sheriff who is to annex and return it with his Writ the Forty five Representatives of Scotland in the House of Commons in the Parliament of Great Britain shall be elected and chosen by Authority of the Queen's Writs under the great Seal of Great Britain directed to the several Sheriffs and Stewarts of the respective Shires and Stewartries and the said several Sheriffs and Stewarts shall on Receipt of such Writs forthwith give notice of the Time of Election for the Knights or Commissioners for their respective Shires or Stewartries G. Britain And the Clerks of the said Meetings immediately after the said Elections are over shall respectively return the Names of the Persons elected to the Sheriff or Stewart of the Shire or Stewartry who shall annex it to his Writ and return it with the same into the Court out of which the Writ is issued And as to the Manner of Election of the fifteen Representatives of the Royal Boroughs Sheriff of Edinburgh on Receipt of his Writ forthwith to direct his Precept to the Lord Provost for electing the Burgess for that City Common Clerk of Edinburgh to certify the
Name of the elected to the Sheriff who is to annex and return it with the Writ the Sheriff of the Shire of Edinburgh shall on Receipt of the Writ directed to him forthwith direct his Precept to the Lord Provost of Edinburgh to cause a Burgess to be elected for that City and their Common Clerk shall certify the Name of the Member elected to the Sheriff of Edinburgh who shall annex it to his Writ and return it with the same into the Court from which the Writ issued And as to the other Royal Burghs divided into fourteen Classes or Districts Sheriffs c. in like Manner to direct their Precepts to the Royal Burghs for the electing a Commissioner for each and the Commissioners of each District to meet at the presiding Borough by name for each District on the thirtieth Day after the Teste of the Writ unless Sunday and then Menday to their Burgess Common Clerk of such presiding Borough forthwith to return the Name of the elected to the Sheriff c. in whose Shire such Borough is who is to annex and return it with his Writ Like Method to be taken by Sheriffs c. in Case of Vacancy in Parliament Time by Decease or Incapacity of a Member and if for a Burgh the presiding Burgh at the first to preside at the new Election the Sheriffs or Stewarts of the several Shires and Stewarties shall G. Britain on the Receipt of their several Writs forthwith direct their several Precepts to every Royal Burgh within their respective Shires or Stewartries reciting therein the Contents of the Writ and the Date thereof and commanding them forthwith to elect each of them a Commissioner as they used formerly to elect Commissioners to the Parliament of Scotland and to order the said respective Commissioners to meet at the presiding Borough of their respective District naming the said presiding Borough upon the thirtieth Day after the Day of the Teste of the Writ unless it be upon the Lord's Day and then the next Day after and then to choose their Burgess for the Parliament And the Common-Clerk of the then presiding Borough shall immediately after the Election return the Name of the Person so elected to the Sheriff or Stewart of the Shire or Stewartry wherein such presiding Borough is who shall annex it to his Writ and return it with the same into the Court from whence the Writ issued And in case a Vacancy shall happen in Time of Parliament by the Decease or legal Incapacity of any Member a new Member shall be elected in his Room G. Britain conformable to the Method herein before appointed and in Case such a Vacancy be of a Representative for any one of the said fourteen Classes or Districts of the said Royal Boroughs that Borough which presided at the Election of the deceased or disabled Member shall be the presiding Borough at such new Election Provided always that upon the issuing of the Writs of Summons for the electing of a Parliament if any Shire or Stewartry where a Royal Borough is In Writs to Sheriffs the Election of a Knight to be omitted if the Shires where a Royal Burgh is have not then a Turn to elect hath not then a Turn or Right to elect a Commissioner or Knight of the Shire or Stewartry for that Parliament that then it shall be omitted out of the Writ c. That every Person who shall refuse to take the Oath of Abjuration or being a Quaker St. 6 An. ch 23. Sheriffs Presidents of Meetings c. on the Poll at any Election of Members of Parliament for Great Britain or of Commissioners for choosing Burgesses for Scotland at the Request of any Candidate or others to administer the Abjuration Oath or Affirmation to Quakers and Electors refusing it disabled to vote shall refuse to declare the Effect thereof upon his solemn Affirmation as directed by an Act made 7. W. 3. which Oath or Declaration the Sheriff President of the Meeting or chief Officer taking the Poll at any Election of Members for any Place in Great Britain G. Britain or Commissioners for choosing Burgesses for any Place in Scotland at the Request of any Candidate or other Person present at such Election which they are to administer shall not be capable of giving any Vote for the Election of any such Member for any Place in Great Britain or Commissioner to choose a Burgess for any Place in Scotland Enacted St. 9 An. ch 5. Candidate to be sworn to his Estate if required by any other Candidate or two Electors That every Person except the eldest Son or Heir Apparent of a Peer or of a Person qualified by this Act to serve as Knight of a Shire or such as shall be elected for each of the Universities of England shall upon Request at the time of the Election or before the Day to be prefixed in the Writ of Summons for the Meeting of any Subsequent Parliament by any other Person who shall stand Candidate at such Election or by any two or more Persons having a Right to Vote at such Election take a Corporal Oath in the Form in this Act contained Vide aute The respective Oaths aforesaid shall be administred by the Sheriff or Under-Sheriff for any County G. Britain or by the Mayor Bailiff The Oaths to be administred by the Sheriff or other Officer by whom the Poll is to be taken and Return made or two or more Justices of the Peace Who are to certify the same into the Chancery or Queen's Bench within 3 Months under 100 l. Forfeiture to be recovered by Action of Debt c. half to the Queen and half to him that sues with full Costs or other Officer or Officers for any City Borough c. to whom it shall appertain to take the Poll or make the Return at such Election or by any two or more Justices of the Peace within England c. and the said Sheriff Mayor Bailiff or other Officers and the said Justices of the Peace respectively are hereby required to certify the taking thereof into Chancery or the Queen's Bench within three Months after the taking the same under the Penalty of forfeiting one hundred Pounds one Moiety to the Queen and the other to such Person or Persons as will sue for the same to be recovered with full Costs by Action of Debt Bill Plaint or Information in any Court of Record at Westminster No Fee or Reward shall be taken for administring any Oath or making 1 s. only to be paid for the Oath 2 s. for making and 2 s. for filing the Certificate under 20 l. Forfeiture to be recovered and divided as above receiving or filing the Certificate thereof except one Shilling for administring the Oath and two Shillings for making the Certificate and two Shillings for receiving and filing the same under the Penalty of twenty Pounds to be forfeited by the Offender G. Britain and to be recovered and divided as aforesaid That upon every Election to
received no little Advantage from a Manuscript of that judicious and learned Judge the late Mr. Justice Price who having been many Years a Member of the House of Commons had made divers curious historical Collections with several Notes and References relating to the Subject Matter hereof And in this Edition the Reader may find collected from authentick Records and Histories all that is necessary to be known touching the Rights and Privileges of Parliaments and in a great Measure the legal Prerogatives of the Prince and just Liberties of the People The CONTENTS CHAP. I. Of Parliaments in general Shewing their Antiquity Names Natures Kinds and Qualities British Saxon c. Ordinarily annual and without Summons Extraordinary on Summons pro arduis c. Of the three Estates Bishops no essential Part excluded elected created by Patent Commons ever represented and how Their Right to a Free Election of all Magistrates c. and Consent to all Aids and Taxes This Right invaded by the Norman Kings William I. and II. Reslored by Henry I. Of English Parliaments in his Time who the Magnates and Barones Regni then were Of Coronation Oaths c. Page 1. CHAP. II. Of the Dignity and Excellency of Parliaments The Supream Power of the Kingdom and when Free Protectors of the People's Rights and Preservers of the legal Government and Constitution Of the three Estates and to what End assembled Lords and Commons anciently sate together The highest Court of Justice c. Page 49. CHAP. III. Of the Power and Authority of Parliaments superior to the Law may judge the Greatest remove evil Ministers redress Grievances of all Kinds Their three Powers viz. Consultive Legislative and Judicial their absolute Power over all Persons c. Page 66. CHAP. IV. and V. Of the Power Authority and Jurisdiction of the House of Peers distinct from the Commons Page 90 101. CHAP. VI. and VII Of the seperate Powers and Authorities of the House of Commons both in general and in particular Cases Page 109 114. CHAP. VIII Shews their Power over their own Members and how executed c. Page 136. CHAP. IX Treats of the Election of Members of the House of Commons in general and of the several Statutes relating thereto Page 149. CHAP. X. Shews who may be Electors and theâ—r Rights Duties and Manner of Election with the Statutes and Oaths referring thereto Page 156. CHAP. XI Who may be elected their Qualifications and Duties c. with such Statutes Oaths c. as concern the same Page 180. CHAP. XII Of the Returns to Parliament and of Amendments of Returns the Sheriffs and other Officers Duty therein with such Statutes and Oaths as relate thereto Page 226 CHAP. XIII and XIV Of the Manner of Election of the Speaker of the House of Commons and of the Business and Duty of the said Speaker Page 263 272. CHAP. XV. and XVI Of Orders to be observed in and by the House of Commons or the Members thereof Page 278 285. CHAP. XVII Of the Manner of passing Bills c. in the said House Page 306. CHAP. XVIII XIX and XX. Concerning Committees in general as also of the Orders Powers and Proceedings of Grand Committees and of Standing Committees c. Page 327 336 341 CHAP. XXI Of Sessions of Parliament what makes a Session as also of Prorogations and Adjournments Page 347 Note CHAP. XXII Of the proper Laws and Customs of Parliament and of Acts and Ordinances Page 358. CHAP. XXIII Of the Privilege of Parliament with the Statutes for regulating it c. Page 379. The APPENDIX being the Case of Sir Francis Goodwyn admitted a Member though returned outlawed c. Concluding with divers additional Pariculars relating to the Privileges and Duties of Parliaments Page 415. Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENT of England c. CHAP. I. Of Parliaments in General their Definition constituent Parts c. with a brief Inquiry into the Original and Nature of our British Saxon and Norman Parliaments THE Word Parliament Minshew in verbo Parlamt in French Parlement and in Spanish and Italian Parliamento is Spelm. Gloss verbo Debate See Coke on Littl. p. 110.164 in its principal Part deriv'd from the French Parler to speak and as Lord Coke and some Others conceive The General Council or National Assembly of this Kingdom is so call'd Spelm. Gloss in verbo Parlament Hales of Parliaments 122. Elsing of Parliaments 167. 4 Inst 8. Bohun's Collection 353. because every Member thereof should in the Matters there debated Parler la Mente i. e. Freely speak his Mind And tho some Authors have oppugned this Derivation yet tis evident from the very Nature and Essence of a Parliament That every Member thereof ought to speak his Mind freely in what relates to the Publick Welfare And this Freedom of Speech is now constantly claimed by the Speaker of the House of Commons at the first Meeting of every New Parliament and in insisted on as a Claim of Right The Word Parlament is in France now taken for one of those High Courts of Justice in that Kingdom Minshew ut supra See Vincent Lupanus lib. 2 c. Parliament No. 28. wherein Men's Causes and Differences are publickly heard and determined without further appeal Of these Parliaments there are Seven viz. 1. Paris now superiour to the Rest 2. Vide Du Haillan Pasquier c. of the Fr. Parlements Tholouse 3. Grenoble 4. Aix 5. Bourdeaux 6. Dijon 7. Roan whereto some add an 8th viz. Rhenes in Bretaigne But with us in England or rather Great Britain The universal Assembly of all the Estates of the Kingdom i. e. The King Sir Tho. Smith De Repub. Angl. lib. 2. c. 1.2 Lords and Commons wherein every Freeman of the Kingdom is said to be present either in Person or by Representation and who are met together for debating of Matters touching the Commonwealth especially for the enacting of Laws and Statutes is properly called a Parliament Cro. Jur. f. 1. c. Cambd. Brit. 6. c. 4 Inst 1. and such Laws and Statutes when agreed on are significantly term'd Acts of Parliament Indeed various Authors Of the three Estates viz. 1. King Cotton's Records 709.710 4 Inst 1. Hales of Parliaments 1. Finch's Nemotecnia lib. 2. c. 1.2 The Lords Sadler's Rights of the Kingdom p. 79. to 93. Kelway's Reports 184. Stamf. P. Cor. 153. See Bagshaw's Reading p. 17. to 21. have had various Sentiments and even Acts of Parliament differ about the three Estates some alledging the King to be the Head of but not included in the Number assert That the three Estates are 1st The Lords Spiritual 2dly The Lords Temporal And 3dly The Commons but Others more rationally say The King is one of the three Estates which compose the Parliament and that the second Estate is constituted of both the Spiritual and Temporal Lords jointly for say they Tho the Archbishops and Bishops are denominated Spiritual yet they sit in Parliament as Temporal
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
Liberty of the Subject and when obstructed or denyed to either made the Kingdom deformed and leprous I may with good Reason and Warranty conclude Id. 125. that our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former Times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malicious Ignorance and Falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Inquest and Mr. James Howel c. as if they were only Beasts of Carriage and Burthen ordain'd to be tax'd and talliated and have their Lives Estates and Liberties given away and disposed of without their own Assents If the Commons do only Accuse by any way of Complaint whatsoever Selden's Judicature c. 14. and do not declare in Special against the Party accused then the Suit is the King's and the Party is to be Arraigned or otherwise proceeded against by Commandment Ex parte Domini Regis In the Lower House sit the Speaker Crompton 2.4 Inst 1. and the Knights Citizens Burgesses and Barons of the Cinque-Ports who represent the Body of the whole Commonalty of England All Persons St. 5 Rich. 2 c. 4. Rast 140. and Commonalties which shall be summon'd to Parliament shall come as they have been used and accustom'd of antient Time and he that shall not come having no reasonable Excuse shall be amerced and otherwise punish'd as of antient Time hath been used Vide ante p. 17. Algernon Sidney c. 3. Sect. 38 An Eminent and Noble Author has in his Discourses on Government asserted that the Power of calling and dissolving Parliaments is not simply in our Kings alone And in support of this Assertion gives us the following Reasons viz. First says he the King can have no such Power unless it be given him by Law for every Man is naturally Free and the same Power that makes him King gives him all that belongs to his being King and no more 'Tis not therefore an Inherent but only a Delegated Power and whoever Receives it is accountable to those who gave it for they who give Authority by Commission do always retain more than they Grant Secondly The Law for Annual Parliaments expresly Declares it not to be in the King's Power as to their Meeting nor consequently as to their Continuance for they meet to no Purpose if they may not continue to do the Work for which they meet and it were absur'd to give them a Power of Meeting if they might not continue till the End for which they met were attained Qui Dat Finem Dat Media ad Finem Necessaria the only Reason End why Parliaments do Meet is to provide for the publick Good and they ought to Meet and continue for that End they ought not therefore to be Dissolved till it be accomplished and 'twas for this Reason that the Opinion given by Tresilian that Kings might Dissolve Parliaments at their Pleasure Note was adjudg'd to be a principal part of his Treason See other Reasons there Assign'd and on the whole he concludes that Parliaments have in themselves a Power of Meeting Sitting and Acting for the Publick Good After which Ibid p. 432. he further Prosecutes the same Point and then proceeds to shew That as the Peoples Delegatees or Representatives in Parliament do not meet there by a Power derived from Kings but from those that chuse them so they who Delegate Powers do always retein to themselves more than they give and therefore the People do not give their Delegates an absolute Power of doing what they please but do always retein to themselves more than they confer on their Deputies who must therefore be accountable to their Principalls Vide plura ibid. CHAP. VII The Power of the House of Commons in particular Cases THE House of Commons is a House of Information and Presentment Rush Coll. 217. vol 1. but not a House of Definitive Judgment The House of Commons is a considerable Grand Jury Trials of the Regicides p. 53. 'tis a good Billa vera they return their Orders are Records and that appears also by 6. H. 8. c. 16. where the Words are viz. And the same Licence shall be entred on Record in the Book of the Clerk of the Parliament appointed or to be appointed for the Common's House c. Sir Audley Mervyn's Speech to the Duke of Ormond 13. Heb. 1662. containing their Sum of Affairs in Ireland p. 17. And more directly in their point upon the Trial of Harrison the Regicide Mr. Jessop was produc'd to attest several Orders of the Common's House Mr. Jessop being Clerk of the House Note the said Stat. 6. H. 8. c. 16. says Rast Stat. p. 429. 4. Inst 23. Hales of Parl. 213. 215. That no Member should depart from the Parliament nor absent themselves from the same without the Licence of the Speaker and Commons in Parliament Assembled to be entred upon Record in the Book of the Clerk of the Parliament And yet some Judges have been of Opinion Hob. Rep. 110.111 that the Journals of the House of Commons are no Records but only Remembrances Before the Year 1550. 3. E. 6. Bur. Hist Ref. vol. 2. p. 143. it seems that no Eldest Sons of Peers were Members of the House of Commons and Sir Francis Russel becoming by the Death of his Elder Brother Heir Apparent to the Lord Russel it was on the 21st of January carried upon a Debate that he should abide in the House as he was before But this was by a special Order so it is entered in the Original Journal of the House of Commons and is the first Journal that ever was taken in that House 1. Car. 1. 1625. Resolved Rush ib. that common Fame is a good Ground of Proceeding for this House either by Enquiry or Presenting the Complaint if the House find Cause to the King or Lords 26 Jan. 28 Hen. 6. Selden's Judicat p. 29. Vid. id 38 The Commons required the Duke of Suffolk might be committed to Ward for that the General Fame went of him c. The Lords on Consultation with the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him It is certain Pettyt's Miscell Pref. c. p. 5. and not to be deny'd That in elder Time the People or Free-men had a great Share in the Publick Council or Government For Dion Cassius or Xiphiline out of him in the Life of Severus assures us Apud hos i. e. Britannos Populus magna ex Parte Principatum tenet It was not in the Power of all the Tenants in Capite in England Id. 47 48. tho' with the King's Consent to bind and oblige others or to make or alter a Law sine Assensu Communitatis Regni who had Votum consultivum decisivum an Act of Authority and Jurisdiction as well in assenting to Spiritual Laws as Temporal
Petyt 's Miscell Parl. 111. The Mayor of Winchelsey for mis-behaving himself at the Election of Parliament Men for that 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 antient Time hath been wont to find Burgesses of the Parliament so to make Election of their Members 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 vel Pretio without any Prayer or Gift and sine Praecepto without Command-the King by Writ or otherwise or of any other The King de advisamento Concilii 4 Inst 4. 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. 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 are entrusted for them Ibid. and are in Number at this Time now 558 viz. 513 for England and 45 for Scotland 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 coagmentative and partly representative Every Member of the House being a Counsellor for the Kingdom 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 Parliament Roll Rot. Parl. 3 H. 6. n. 3. The Knights of the Shire are chosen by all the Gentlemen and Yeomen i. e. Freeholders of the Shire Arc. Parl. 5. Smith 's Common-wealth 77. present at the Day assign'd for the Election The Voice of any absent is to be counted for none Concerning the Writs for summoning the Knights and Burgesses and the Return of the Sheriff thereupon Vide Crompton's Juris 1.2 Every Englishman is intended to be there present Arc. Parl. 3. either in Person or by Procuration and Attorney and the Consent of the Parliament is taken to be every Man's Consent These meeting at one Day Id. 10. Smith 's Common-wealth 77. the two who 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 Citizens and 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 Secundum Legem Consuetudinem Parliamenti For the Election of the Knights Id. 48. if the Party or Freeholders demand the Poll the Sheriff cannot deny the Scrutiny for he cannot discern who be Freeholders by the View and tho the Party would wave the Poll yet the Sheriff must proceed in the Scrutiny The Knights shall be returned into Chancery by Indenture seal'd betwixt the Sheriff and the Choosers of Knights for the Parliament St. 8 H. 6. c. 7. 7 H. 4. c. 1. 23 H. 6. c. 15. Vide Crompton's Juris 3. 2 Nalson 870. Jan. 1641 in the Case of Mr. Downs return'd a Burgess for Arundel order'd That he be presently sworn and admitted as a Member into the House until such Time as the Election be determin'd A Burgess elected for two several Boroughs Sir Simon d'Ewes Jour 430 622. passim Petyt 's Miscel Parliament 112 113. may choose for which he will serve 21 Jac. 1 Edward Ingry Under-Sheriff of Cambridgeshire for refusing the Poll declaring that Sir Thomas Steward promised to defend him against Sir John Cutts was brought to the Bar and kneeling upon his Knees adjudg'd to be committed to the Serjeant's Custody and to make a Submission at the Bar and at the next Quarter-Sessions and to acknowledge his Faults 3 Car. 1 Id. 113. to 120. Thomson Sheriff of York for his hasty and precipitate Judgment of an Election and denying the Poll being requir'd and Alderman Henlow for advising and abetting the same adjudged to stand committed to the Serjeant during Pleasure to acknowledge their Offences at the Bar to pay all due Fees to defray the Charge of Witnesses to be assessed by four of the Committee to acknowledge their Faults on their Knees at the Bar and to read a Submission After the Precept of the Sheriff directed to the City or Borough for making an Election Id. 49. there ought secundum Legem Consuetudinem Parliamenti to be given a convenient Time for the Day of Election and sufficient Warning given to the Citizens and Burgesses that have Voices that they may be present otherwise the Election is not good unless such as have Voices do take Notice of themselves and be present at the Election When there is a Corporation made by Charter Hobart 15. Dungannon 's Case in Ireland and by the same an Ordinance that the Provost and Burgesses only shall choose c. the Law shall vest this Priviledge in the whole Corporation in mandment of Point of Interest tho the Execution of it be committed to some Persons Members of the same Corporation The King cannot grant a Charter of Exemption to any Man 4 Inst 49. to be freed from Election of Knight Citizen or Burgesses of Parliament as he may do of some inferior Office or Places because the Election of them ought to be free and his Attendance is for the Service of the whole Realm and for the Benefit of the King and his People and the whole Common-wealth hath an Interest therein 18 Eliz. 1575 resolved Sir Simon d'Ewes 244. Col. 2. Vide contra Sir Simon d'Ewes Jour 281 282. That any Person being a Member of the House and being either in
Burgesses of the said High Court have had used c. Vide ante 176. That every Person which hereafter shall be elected a Knight Stat. 5. Eliz. c. 1. Knights Citizens c. before their sitting in Parliament to take the Oath of Supremacy before the Lord Steward or his Deputies and for the contrary to lose their Memberships and incur such Penalties as if they had sat without Election Return c. Citizen or Burgess or Baron for any of the Five Ports for any Parliament or Parliaments hereafter to be holden shall before he enter the Parliament House or have any Voice there openly receive and pronounce the Oath The Oath of Supremacy mentioned in this Act is abrogated by the Stat. 1 W. M. ch 1. and a new one appointed which see ante p. 177. expressed in the Stat. 1 Eliz. ch 1. England commonly called the Oath of Supremacy before the Lord Steward of the Queen's Houshold or his Deputy or Deputies for that Time to be appointed and that he which shall enter into the Parliament House without taking the said Oath shall be deemed no Knight Citizen Burgess nor Baron for that Parliament nor shall have any Voice but shall be to all Intents Constructions and Purposes as if he had never been returned nor elected Knight Citizen Burgess or Baron for that Parliament and shall suffer such Pains and Penalties as if he had presumed to sit in the same without Election Return or Authority That all and every the Knights Citizens Stat. 7. Jac 1. c. 6. Knights Citizens c. at any Parliament or Sessions to take the Oath of Allegiance before the Lord Steward c. ere they be permitted to sit Burgesses and Barons of the Five Ports of the Commons House of Parliament at any Parliament or Session of Parliament before he or they shall be permitted to enter into the said House shall make take and receive the Oath of Obedience mentioned in the Statute of 3 Jac. 1. ch 4. commonly called the Oath of Allegiance The Oath of Allegiance mentioned in this Act is abrogated by the Stat. of 1 W. M. c. 1. as aforesaid post 198. before the Lord Steward of the King's Houshold his Deputy or Deputies That none which shall be a Member of the House of Commons England shall vote in the said House St. 30 C. 2. c. 1. Members of the House of Commons shall not vote or sit there during any Debate after their Speaker chosen until they have taken the Oaths of Allegiance and Supremacy and subscribed the Test between Hours of 9 and 4 in a full House or sit there during any Debate in the said House after their Speaker is chosen until such Member shall first take the several These Oaths are abrogated by Stat. 1 W. M. c. 1. Oaths of Allegiance and Supremacy and make subscribe and audibly repeat the Declaration in this Act contained commonly called the Test which said Oaths and Declaration shall be in this and every succeeding Parliament solemnly and publickly made and subscribed betwixt the Hours of Nine in the Morning and Four in the Afternoon by every such Member at the Table in the Middle of the said House and whilst a full House of House is there duly sitting with their Speaker in his Chair and that the same be done in the House in such-like Order or Method as the House is called over by If any Member of the House of Commons shall presume to do any thing contrary to this Act Members acting contrary shall be adjudged Popish Recusants convict and suffer as such and be disabled to hold any Office or Place of Profit or Trust in England or is Dominions to sit or vote in Parlia ment bring any Action or Information at Law or Suit in Equity be Guardian of any Child Executor or Administrator of any Person or capable of any Legacy or Deed of Gâ—â— and forfeit 500 l for every Offence to any that will sue by Action of Debt c. where no Essoign c. every Member so offending shall from thenceforth be deemed and adjudged a Popish Recusant Convict to all Intents and Purposes and shall forfeit and suffer as a Popish Recusant Convict and shall be disabled to hold or execute any Office or Place of Profit or Trust England Civil or Military in any of His Majesty's Realms of England or Ireland Dominion of Wales or Town of Berwick upon Tweed or in any of His Majesty's Realms Islands or Foreign Plantations to the said Realms belonging and shall be disabled to sit or vote in Parliament or to sue or use any Action Bill Plaint or Information in course of Law or to prosecute any Suit in any Court of Equity or to be Guardian of any Child or Executor or Administrator of any Person or capable of any Legacy or Deed of Gift and shall forfeit for every wilful Offence against this Act the Sum of 500 l. to be recovered or received by him or them that will sue for the same and to be prosecuted by any Action of Debt Suit Bill Plaint or Information in any of His Majesty's Courts at Westminster where no Essoign Protection or Wager of Law shall lie It shall be lawful to and for the House of Commons as often as they shall see Occasion Members obliged to take the said Oaths and subscribe the Test in the House as often as the House shall think fit and Members acting contrary and presuming to sit incapacitated during that Parliament to order or cause all or any of the Members of Parliament openly in their House to take the said Oaths England and to make and subscribe the said Declaration at such Times and in such Manner as they shall appoint And if any Member of the House of Commons shall contrary to such Order made by their House wilfully presume to sit therein without taking the said Oaths and making and subscribing the said Declaration every such Member so presuming to sit shall be adjudged and is declared to be uncapable and disabled in Law to all Intents and Purposes to sit in the said House or give any Voice therein during that Parliament And in Case any Member of the House Such Members Election declared void and the Speaker by Order of the House to issue his Warrant for a new Election shall by virtue of this Act be disabled to sit or vote in the House then without any further Conviction or other Proceedings against such Member the Place for which he was elected is hereby declared void and a new Writ shall issue out of Chancery by Warrant from the Speaker and by Order of the said House for the Election of a new Member in the Place of such Member so disabled to all Intents and Purposes as if such Member or Members were naturally dead c. During the taking the Oaths and subscribing the Test all other Proceedings in Parliament to cease and the Oath Declaration and Subscription with a Schedule of the Names of the Persons taking and
disturb the House shall pay the like Forfeiture And it is further ordered that the Business then in Agitation being ended no new Motion of any new Matters shall be made without leave of the House 5 Dec. 1640. Id. 84. Ordered that no Bills have their second Reading but between Nine and Twelve 10 Dec. 1640. Id. 92. Declared for a constant Rule that those that give their Votes for the Preservation of the Orders of the House shou'd stay in and those that give their Votes otherwise to the introducing of any new Matter or any Alteration should go out 8 Sept. 1641. Id. 392. See how far an Order of this House is binding In March 1627. Rush Coll. vol. 1.513 Resolved that is the ancient and undubitable Right of every Freeman that he hath a full and absolute Property in his Goods and Estate that no Tax Tallage Loan Benevolences or other like Charge ought to be commanded or levied by the King or any of his Ministers without common Consent by Act of Parliament March 1627. Id. 513. Resolved that no Freeman ought to be detained or kept in Prison or otherwise restrained by the Command of the King or Privy-Council or any other unless some Cause of the Commitment Detainer or Restraint be expressed for which by Law he ought to be committed detained or restrained Resolv'd Id. 513. that the Writ of HabeasCorpus may not be Detain'd Deny'd but ought to be granted to every Man that is committed or detained in Prison or otherwise restrained tho' it be by the Command of the King the Privy-Council or any other he praying the same Resolved that if a Freeman be committed or detained in Prison or otherwise restrained by Command of the King the Privy-Council or any other no Cause of such Commitment Detainer or Restraint being expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the said Party then he ought to be delivered or bailed 2 April 1628. Resolved Id. 523. that no Freeman ought to be confined by any Command from the King or Privy-Council or any other unless it be by Act of Parliament or by other due Course or Warrant of Law King James I. having in 1621. Rapin Vol. 2. No. 54. p. 208.209 for some Words spoken by him in the House it occasioned a Remonstrance of the Commons to the King therein complaining of Breach of Privilege and asserting their Liberty of Speech and Debate to be their antient and undoubted Right and Inheritance receiv'd from their Ancestors c. This they sent to the King by twelve Members at the Head of whom they affectedly set Sir R. Weston a Privy-Counsellor one whom they conceiv'd had incens'd the K. against them who were receiv'd very roughly and their Remonstrance rejected But some Days after the K. sends 'em a long Answer in Writing wherein towards the Conclusion he objects against the stiling their Privileges Id. p. 211. their antient and undoubted Right and Inheritance and wishes they had said i. e. commands 'em to acknowledge that their Privileges were derived from the Grace and Permission of him and his Ancestors The House on reading this Answer plainly perceiv'd the King's Aims The Commons Protestation in Vindication of their Privileges Ibid. p. 211. 212. c. and knowing the Parl. was going to be prorogued or dissolv'd drew up a Protestation in Order to vindicate their Privileges viz. The Commons now assembled in Parl. being justly occasion'd thereunto concerning sundry Liberties Franchises and Privileges of Parliament amongst others here mentioned do make this Protestation following That the Liberties Franchises Privileges and Jurisdiction of Parliament are the antient and undoubted Birth-right and Inheritance of the Subjects of England and that the arduous and urgent Affairs concerning the King the State and the Defence of the Realm and of the Church of England and the Maintenance and making of Laws and Redress of Mischiefs and Grievances which happen daily within this Realm are proper Subjects and Matter of Counsel and Debate in Parliament And that in the handling debating and proceeding in those Businesses every Member of the House of Parliament hath and of Right ought to have Freedom of Speech to propound treat reason and bring to Conclusion the same and that the Commons in Parliament have like Liberty and Freedom to treat of these Matters in such Order as in their Judgment shall seem fittest See of the Terms Parliament and Prerogative Id. p. 213. and that every Member of the said House hath like Freedom from all Impeachment Imprisonment and Molestation other than by Censure of the House it self for or concerning any speaking reasoning or declaring of any Matter or Matters touching the Parliament or Parliament-Business and that if any of the Members be complained of and questioned for any Thing said or done in Parliament the same is to be shewed to the King by the Advice and Assent of the Commons assembled in Parliament before the King give Credence to any private Information But the K. being inform'd of this Protestation call'd a Council and sending for the Commons Journal in Presence of the Judges c. with his own Hands tore it out of the Journal and in a few Days after dissolved the Parliament but this did not deter the Commons from insisting on their Claim And in his Son's Reign it was asserted with a Witness and is now confirm'd by the Claim of Right and other Statutes Mar. 12. 1700. the House Journal Dom. Com. on a Report of that Part of the K's Speech which related to the Hanover Succession agreed with the Committee in these Resolves viz. 1. That all Things relating to the well governing of this Kingdom which are properly cognizable in the P. Council shall be transacted there and all Resolutions taken thereupon shall be sign'd by the P. C. 2. That no Person whatsoever that is not a Native of England Scotland or Ireland or of the Dominions thereunto belonging or who is not born of English Parents beyond the Seas altho such Person be naturaliz'd or made a Denizen shall be capable to be of the P. C. or a Member of either H. of P. or to enjoy any Office of Place or Trust either Civil or Military P. Council 3. That no such Person c. shall be capable of any Grant of Lands Tenements or Hereditaments from the Crown to himself or any other in Trust for him 4. That upon the further Limitation of the Crown in Case the same shall come to any Person not being a Native of this Kingdom of England this Nation be not oblig'd to engage in any War for the Defence of any Dominions or Territories not belonging to the Crown of England without the Consent of Parliament 5. That whoever shall hereafter come to the Possession of this Crown shall join in Communion with the Church by Law establish'd 6. That no Pardon shall be pleaded to any Impeachment in Parliament 7. That
offered to the House till the Leave of the House be desired and the Substance of such Bill made known either by Motion or Petition It hath at some Times been ordered Hakewel 135. That every one that preferreth a private Bill should pay five Pounds to the Poor as in 43 Eliz. towards the End of the Parliament when they were troubled with much Business but it holdeth not in other Parliaments Scobel 41. Nevertheless the Speaker had Liberty to call for a private Bill to be read every Morning and usually the Morning is spent in the first Reading of Bills untill the House grow full If any publick Bill be tendered Ibid. the Person who tenders the Bill must first open the Matter of the Bill to the House and offer the Reasons for admitting thereof and thereupon the House will either admit or deny it 7 Martii 1606. Mr. Id. 46. Hadley being assigned of a Committee to confer with the Lords desired to be spared he being in Opinion against the Matter itself And it was conceived for a Rule That no Man was to be imployed in any Matter that had declared himself against it and the Question being put it was resolved Mr. Hadley was not to be employed Presidents reported by Mr. Pryn 28 Jan. 1666. about the Method of Proceeding upon the Impeachment of the Lord Mordant 28 May 1624. In the Lords Journal Council to be allowed Impeachment which is entered in haec verba and allows Council in all Cases 1 2 Car. 1. A great Dispute if the Earl of Bristol impeached for High Treason should be allowed Council The Lords then stood on the Order above recited The King objected to that Order that the Judges and his Council had not assented thereto yet the King consented to avoid being thought rigorous that the Earl of Bristol should be allowed Council so it were not drawn into Precedent Council was allowed to Sir George Bynion Council allowed to Garney Lord Mayor of London impeached for High Crimes and Misdemeanors 5 11 July 1642. and 1 2 August Sept. 30. 1645. An Impeachment of of the Earl of Strafford H. Poulton c. for striking Sir Arthur Haselrig Upon all which the House did acquiesce in the Lord Mordant's having Council As to his sitting within the Bar The Lords insisted on it on the Precedents of 18 Jac. the Bishop of Landass and 1645. the Lord Stamford Seignor Coke Litt. Rep. 330. Elect. 1 Car. 1. Viscount de Bucks Chivaler de Norsolk Comment que ill abstein de la maison uncore il avoit privilege versus la Dame Cleer The Privileges of Parliament consist in Three Things May 's Hist Parl. l. 3. p. 27 Sir Robert Atkin's Power of Parliaments 36. Rush Col. Vol. 1.663 First as they are a Council to advise Secondly a Court to judge Thirdly a Representative Body of the Realm to make repeal or alter Laws Upon some Questions propounded to the Judges Anno 1629. 5 Car. 1. all the Judges agreed That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a parliamentary Course Their Rights and Privileges are the Birth-right and Inheritance not only of themselves Rush Col. Vol. 3. p. 1. 458. but of the whole Kingdom wherein every Subject is interested The Violating of the Privileges of Parliament Rush Col. Vol. 3. p. 1. 475. Rush Col. Vol. 1. p. 537. is the Overthrow of Parliament The Privileges of the House says Sir Edward Cook are the Heart-Strings of the Commonwealth and therefore if the King desires a Nonrecess I desire that this may be enter'd That it is done ex rogatu Regis The King viz. Charles II. Journ of House of Commons in his Letter to the King of Spain declares That the Murder of his Father was not the Act of the Parliament or Kingdom of England but of a little Company in the Kingdom 23 Aug. 1660. Expulsion from the House for Words Thursday in the Morning 27 May Diurnal Occurrences of Parliament from Nov. 3. 1640. to Nov. 3. 1641. p. 11â— 1641. Mr. Tayler a Barrister and Burgess for Old Windsor was brought upon his Knees in the House of Commons for speaking some Words in Disparagement of the whole House about the Earl of Strafford's Death saying They had committed Murder with the Sword of Justice and that he would not for a World have so much Blood lie on his Couscience as did on theirs for that Sentence Which Words being proved against him by the Mayor of Windsor to whom he spoke them and some others he was thereupon expelled the House and voted uncapable of ever being a Parliament Man committed to the Tower during Pleasure to be carried down to Windsor there to make Recantation for those Words and to return back to the House of Commons to receive further Sentence And it was ordered That a Writ should presently issue out for a new Election is his room The 2d of June he petitioned to be restored upon his Submission Id. p. 116. Id. the where Rush Col. part 3. vol. 1. fo 278 280. But his Petition would not be hearkened unto A Member sent to the Tower for discovering what was said in the House in a former Parliament Mr. Francis Nevill Rush Col. part 3. vol. 1. fo 169. of Yorkshire a Member of the House was February 4. 1640. 16 Car. 1. questioned for Breach of Privileges in the precedent Parliament which met 13 Apr. 1640. by discovering to the King and Council what Words some Members did let fall in their Debate in that House Whereupon Mr. Bellasis Knight for Yorkshire and Sir John Hotham were committed by the Council-Board And Mr. Nevill being brought to the Bar was by the House committed to the Tower of London and Sir William Savill touching the same Matter was ordered to be sent for in Custody CHAP. XXIII Privilege of Parliament THE Privilege of Tenants in Ancient Demense Sir R. Atkin's Argument 18. Vide Coke 9 Rep. in Pref. must be as ancient as their Tenure and Service for their Privilege comes by Reason of their Service and their Service is known by all to be before the Conquest in the Time of Edward the Confessor and in the Time of the Conqueror Every Man must take Notice of all the Members of the House returned of Record 4 Inst 23.24 at his Peril Otherwise it is of the Servant of any of the Members of the House Id. 24. A Member of Parliament shall have Privilege of Parliament Id. 42. Hakewel 62. not only for his Servants but for his Horses c. or other Goods distrainable The Privilege is due eundo Scobel 88. morando redeundo for the Persons of Members and their necessary Servants and in some Cases for their Goods and Estates also during the Time For their own Persons they have been privileged from Suits Ibid. Arrests Imprisonments Attendance on Trials Serving on Juries and the like yea from being summoned or called to attend upon any Suit in other Courts by Subpoena
agreed That regularly he cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course but it is otherwise where Things are done exorbitantly for those are not the Acts of the Court. No Privilege is allowable in Case of the Peace betwixt private Men 2 Nalson 450. much more in Case of the Peace of the Kingdom Privilege cannot be pleaded against an Indictment for any Thing done out of Parliament Ibid. because all Indictments are contra Pacem Domini Regis Privilege of Parliament is granted in regard of the Service of the Commonwealth Ibid. and is not to be used to the Danger of the Commonwealth All Privilege of Parliament is in the Power of Parliament Ibid. and is a Restraint to the Proceedings of other inferior Courts but is no Restraint to the Proceedings of Parliament 16 Car. 1 Resolved Rush 2 vol. 2d Part. 1147. That the Lords voting the propounding and declaring Matter of Supply before it was moved in the House of Commons was a Breach of Privilege of the House Dec. 1641. Resolved 2 Nalson 729. That the setting of any Guards about this House without the Consent of the House is a Breach of the Privilege of this House and that therefore such Guards ought to be dismissed Resolved upon the Question Id. 743. Nemine Contradicente That the Privileges of Parliament were broken by his Majesty's taking Notice of the Bill for suppressing of Soldiers being in agitation in both Houses and not agreed on Resolved upon the Question Ibid. Nemine Contradicente That his Majesty in propounding a Limitation and provisional Clause to be added to the Bill before it was presented to him by the Consent of both Houses was a Breach of the Privilege of Parliament Resolved upon the Question Ibid. Nem. Con. That his Majesty expressing his Displeasure against some Persons for Matters moved in the Parliament during the Debate and Preparation of that Bill was a Breach of the Privilege of Parliament Whereas his Majesty 2 Nalson 823. in his Royal Person the 4th of Jan. 1641. did come to the House of Commons with a great Multitude of Men armed in a warlike Manner with Halberts Swords and Pistols who came up to the very Door of the House and placed themselves there and in other Places and Passages near to the House to the great Terror and Disturbance of the Members then there sitting and according to their Duty in a peaceable and orderly Manner treating of the great Affairs of both Kingdoms of England and Ireland and his Majesty having placed himself in the Speaker's Chair did demand the Persons of divers Members of the House to be delivered unto him It was thereupon declared by the House of Commons Ibid. That the same is a high Breach of the Rights and Privileges of Parliament and inconsistent with the Liberty and Freedom thereof and therefore the House doth conceive they could not with Safety of their own Presons or the Indemnities of the Rights and Privileges of Parliament sit there any longer without a full Vindication of so high a Breach of Privilege and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Sleden's Jud. p. 84. but upon a Complaint of the Commons But Note as to Freedom from Suits and Arrests Stat. 12 13. Wil. 111. that in the Parliament of 12 13 William the Third an Act passed entitled An Act for preventing any Inconveniencies that may happen by Privilege of Parliament Which enacts Sect. I. That any Person may prosecute any Peer of this Realm or Lord of Parliament or any of the Knights Citizens and Burgess of the House of Commons for the Time being or their or any of their menial or other Servants or any other Person entitled to the Privilege of Parliament in any of the Courts of Record at Westminster or high Court of Chancery or Court of Exchequer or the Dutchy Court of Lancaster and in the Court of Admiralty and in all Causes Matrimonal and Testamentary in the Court of Arches the Prerogative Courts of Canterbury and York and the Delegates and in all Courts of Appeal from and after the Dissolution or Prorogation of any Parliament until a new Parliament shall meet or the same be reassembled And from and after any Adjournment of both Houses for above fourteen Days until both Houses shall meet or reassemble And that the said Courts respectively shall and may after such Dissolution Prorogation or Adjournment proceed to give Judgment and make final Orders Decrees and Sentences and award Execution thereon any Privilege of Parliament to the contrary notwithstanding Sect. II. Provides against subjecting the Person of any Knight Citizen or Burgess or any other intitled to the Privilege of Parliament to be arrested during the Time of Privilege Nevertheless allowing the Liberty that any Person having Cause Action or Complaint against any Peer of the Realm or Lord of Parliament so that after any Dissolution Prorogation or Adjournment as aforesaid or and before any Session of Parliament or Meeting of both Houses as aforesaid shall and may have such Process out of the Courts of King's Bench Common Pleas and Exchequer against such Peer or Lord of Parliament as he might have had against him out of the Time of Privilege And if any Person having Cause of Action against any of the said Knights Citizens or Burgesses or any other intitled to Privilege after any such Dissolution Prorogation or Adjournment or before any such Sessions or Meeting of both Houses ut supra he shall and may prosecute such Knight Citizen or Burgess or other such privileged Person in the said Courts of King's Bench Common Pleas or Exchequer by original Bill and Summons Attachment and Distress infinite out of the same Courts who are respectively impower'd to issue the same against him or them until the Defendant shall enter a Common Appearance or file Common Bail to the Action according to the Course of each Court. And that any Person having Cause of Suit or Complaint may in the Time aforesaid exhibit any Bill of Complaint against any Peer of the Realm or Lord of Parliament or against any Knight Citizen or Burgess or other Person so intitled to Privilege in the Chancery Exchequer or Dutchy Court and proceed thereon by Letter or Subpoena as usual And upon leaving a Copy of the Bill with the Defendant or at his House or Lodging or last Place of Abode may proceed thereon and for Want of an Appearance or Answer or for Non-Performance of any Order or Decree or for Breach thereof may sequester the real or personal Estate of the Party as is used and practised where the Defendant is a Peer of the Realm but shall not arrest or imprison the Body of any of the said Knights Citizens or Burgesses or other privileged Person during the Continuance of Privilege of Parliament Sect. III. That where any Person by reason of Privilege of Parliament is stayed or prevented from prosecuting any Suit
Barons only i. e. By Reason of the Temporal Baronies annexed to their Bishopricks and not as they are Spiritual Persons And they further urge in Confirmation of their Opinion 1. That no Bishop notwithstanding his Election Consecration Confirmation c. can be a Lord of or sit in Parliament till the King has granted to him the Temporalities of the Bishoprick 2. N. B. Tho this Stat. was repealed by Q. Mary yet that Repeal was repealed by Q. Elizabeth c. As the Parliamt at Bury 24 E. 1. 1 Eliz. all the Acts about Religion passed Dissentientibus Episcopis See Journal Dom. Procer 11 H. 7.27 Bro. Par. 107. Kelway 184. 3 The Commons See hereafter See Sadler's Rights p. 79. to 93. That by Virtue of the Stat. 1 E. 6. c. 2. still in Force The King may constitute Bishops by his Letters Patent only without any Election or Consecration and 3. That Parliaments have been and may be held Excluso Clero exclusive of the Bishops and Clergy and that some of our most beneficial Statutes have been enacted whereto the whole Body of the Clergy dissented all which they say prove the Bishops to be no essential Part or any of the three Estates of Parliament And in Trinity Term 7 H. 8. tis agreed by all the Judges of England That the King may well hold his Parliament by himself and his Lords Temporal and Commons without any Bishops or Spiritual Lords at all The third Estate of which we shall herein principally treat is on all Hands confess'd to consist of the Knights Citizens and Burgesses with the Barons of the Cinque-Ports all which being at this Day elected by the free Votes of the Freemen of Great Britain are properly esteem'd the Representative Body of the People and constitute that Part of the Parliament usually called the House of Commons N. B. The antient Modus Tenendi Parl. reckons up six Degrees or Orders of Parliament but that Division cannot be denominated six Estates The Numbers of the Commons Numb of Commons formerly See Mr. Willis's Preface to his 1 Vol. of Net Parl. Prynn of Parliamentary Writs I find to have been formerly variant according as the Sheriffs of Counties from what Motive is uncertain were pleased to direct their Precepts to the several Cities or Burros within their respective Counties or as the same Sheriffs made their Returns thereupon But indeed another Cause of this Variation was That it was usual for the Prince on his Accession to the Throne to grant Charters to antient Demesne Vills and other popular Towns thereby erecting 'em into free Burros and this consequently gave 'em a Right to be represented in Parliament And by this Artifice among others the Crown advanced its Interests in the House of Commons For it must be confess'd That by the antient Constitution there were no Representatives of the Commons as Commons in Parliament besides the Knights for the Shires the Barons for the Cinque Ports Crompt of Courts f. 2.3 c. Stat. 23. H. 6. c. 11. the Citizens for the Cities and the Burgesses for the ancient Burros only and that the Elections for all those were to be made by such Persons only as were possess'd of Lands or Tenements held by them as Freeholds or free Burgage Tenures which consequently excluded all Villeins and Copyholders Stat. 12. R. 2. c. 12. Crom. 2.3.4.5 Bro. Ant. Dem. 43â— as also Tenants in antient Demesne which were but the King's Villeins and the Tenants and Dependants of other Lords Parl. 96. Reg. 261. Nat. Bre. 14. from being either the Electors or elected of the House of Commons Indeed the Practice of increasing the Number of the Representatives of the Commons See Bohun's Col. per Tot. began very early viz. Temp. Johan if not before for I find it a Practice of that Prince to grant usually in Consideration of Money c. Charters to Antient demesne Towns as generally all Sea-Port Towns were thereby erecting 'em into free Burroughs The Representative of London and West p. 14. 10 p. 21. Spelm. in voce Major and hence it was as I conceive That Bridport Dorchester Harwich Helstone Kingston upon Hull and divers other antient demesne Towns came to be erected into free Burros which originally had no Right of being represented in Parliament But whatever Methods were then taken to encrease the Number of the House of Commons I find their Number to be much the same from the End of H. the 6th's Reign Fortescue p. 40. to the Beginning of that of H. the 8th viz. about 300. That H. 8. MS. Penes Authorem added to their Number 38. King Ed. 6. added to their Number 44. Queen Mary added to their Number 25. Queen Elizabeth added to their Number 62. King James the 1st added to their Number 27. And King Charles the 1st about 10. or 12. so that at the Time of the Restoration of King Charles 2. I find their Numbers to have been about 500. But the Commons about that Time restrained this mischievous Practice for the Future so that they declared the Elections made by Virtue of that Prince's Charters void and as Chester had been enabled to send two Members for the County and two for the City by Virtue of a Sta. 34.35 St. 34.35 H. 8. c. 13 St. 25. C. 2. c. 9. H. 8. so an Act past in the 25 Car. 2. enabling Durham to send four Members in like Manner and thus the Number of the House of Commons stood at 513 till the Union of the Kingdoms of England and Scotland when by Virtue of the Union Act St. 5. An. c. 8. forty-five Scottish Members were added which made the whole Number of that House to be 558 as it now stands Mr. Prynn and Others observe Denominations of Parliam Prynn's Rights of the Com. c. p. 99. 99. Spelm. Glossary in verb. Parlam Debata That our Ancestors had many Expressions and Phrases which signify'd a Parliamentary Assembly as Magnates Regni Omnes Regni Nobiles Proceres et Fideles Regni Universitas Regni Communitas Regni Discretio Totius Regni Generale Concilium Regni and many others varying the Stile in successive Ages till at length it came to be fix'd in the Word Parliament See divers Records and Precedents touching this Matter in the Appendix to Mr. Petyt's Miscellanea Parliamentaria Mr. Prynn also says Prynn's Truth triumphing over Falshood c. f. 69. Petyt's Antient Rights c. p. 68. That by many antient Precedents before the Conquest it is apparent that all our pristine Synods and Councils were nought else but Parliaments and that our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voted in them as Members and Judges And Mr. Lambard Sir Robert Atkyns's Argument p. 18. see hereafter in his Archaeion maintains That Parliaments were used in the Saxon Times as in the Time of King Ina Ann. 712 and other Saxon Princes and that they then consisted of King Lords and Commons And that the
Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment Id. 71. for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be Sworn to say their Verdict but they shall give their Verdict upon their Honour and are not charged but upon their Honours And 6 Maij 1628. Sir Wm. Jones's Rep. 154 155. It was ordered on the Question Nem. Dissen That the Nobility of this Kingdom and Lords of the upper House of Parliament are of antient Right to Answer in all Courts as Defendants upon Protestation of Honour only and not upon the common Oath An order of the House of Lords was in 1640. Cursus Cancel 112. That the Nobility of this Kingdom and Lords of the upper House of Parliament and the Widows and Dowagers of the Temporal Lords shall Answer in Chancery c. upon Protestation of Honour only but altho their Honour may bind their Conscience in Equity yet Evidence upon their Honour ought not to be admitted in any Court of Law And we must here Note That even Lords of Parliament or Peers of the Realm in giving Evidence to a Jury or in their Depositions in Chancery c. are to be Examined on Oath A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lyc against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statue Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. he ought to appear in his proper Person and not by Attorney unless he has a special Writ of Chancery De attornato faciendo CHAP. V. The Power of the House of Lords A Peer of the Realm being Indicted of Treason or Felony 4 Inst 23. or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Vide a Letter sent by nine Lords Rush Col. 3. Stat. vol. 1. f. 737. Ant. 42. to the Parliament June 4 1642 who had gone from their House and repaired to the King at York wherein they say We do conceive that it is the apparent usual and inherent Right belonging to the Peerage of England that in the highest Misdemeanour whatsoever no Peer is to Answer to the first Charge but in his Place in his own Person and not upon the first Charge to come to the Barr. In 1553. primo Mariae Burn. His Ref. vol. 2. p. 253. The Bill of Tonnage and Poundage was sent up to the Lords who sent it down to the Commons to be reformed in two Provisoes that were not according to former Precedents How far this was contrary to the Rights of the Commons who now say that the Lords cannot alter a Bill of Money I am not able to determine Die Mercurij 25 Novembris 1692. It is Resolved upon the Question by the Lords Spiritual and Temporal that for the future when there shall be a Devision in the House upon any Question the Contents shall goe below the Barr and the Not Contents stay within the Barr And it is Ordered that this Resolution be added to the Roll of standing Orders of this House Die Lune 7. Decembris 1691. It is Ordered by the Lords Spiritual and Temporal in Parliament Assembled that for the future upon giving Judgment in any Cases of Appeals or Writs of Error in this House the Question shall be put for Reversing and not for Affirming And that this be added to the Roll of standing Orders 30. Jan. 1640. Rush Col. 3. part vol. 1 p. 165. Upon a Debate in the Lord's House touching the Power of conveying away of Honour it was Nemine contradicente Resolved upon the Question that no Person that hath any Honour in him as a Peer of this Realm may alien and transfer the same to any other Person See Sir B. Shower's Cases in Parliament 1.2 c. See many notable Judgments by the Lords at the Prosecution of the Commons Rush Col. passim Nalson and in later Times Error serra sue in Parliament Vid. Crom. 18. Error Vid. infra Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take a Recognizance If a Judgment be given in the King's Bench 4. Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Jusstitia let Justice be done have a Writ of Error directed to the Chief Justice of the King's Bench for removing of the Record in praesens Parliamentum c. And hence it may be presum'd that Writs of Error in Parliament were originally Returnable before the Commons as well as the Lords See Yelverton's Rights of the Commons and Hales of Parliaments p. 18. to 23. When one sueth in Parliament to Reverse a Judgment in the King's Bench he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias Id. 22. The Proceeding upon the Writ of Error is only before the Lords in the Upper House Secundum Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ or Error Resolved 2 Nalson 716. 'twas decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363 or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. 2 Nalson 625. Resolved by the House Nemine contradicente that it belongs to the House of Peers by the antient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12. 1641. 2. Nalson 381. An order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27.28 and Sir Fracis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature
Person or Persons so Infeost to Vote at that Election and that it shall be lawful for any of the Electors present suspecting any Person or Persons to have his or their Estates in Trust and for the Behoof of another to require the Praeses of the Meeting to tender the Oath in this Act contained to any Elector and the said Praeses is hereby impowered and required to administer the same In case such Elector refuse to Swear and also to subscribe the said Oath such Person or Persons shall not be capable of Voting at such Election Notwithstanding such Oath taken it shall be lawful to make such other Objections as are allowed by the Laws of Scotland against such Electors No Infeoffment taken upon any redeemable Right except proper Wadsetts Adjudications or Apprisings allowed by the Act of Parliament relateing to Elections in One thousand six hundred eighty one shall entitle the Persons so Infeoft to Vote at any Election in any Shire or Stewartry And no Person or Persons who have not been Enrolled and Voted at former Elections shall upon any Pretence whatsoever be Enrolled or admitted to Vote at any Election Scotland except he or they first produce a sufficient Right or Title to qualifie him or them to Vote at that Election to the satisfaction of the Freeholders formerly Enrolled or the Majority of them present and the returning Officers are hereby ordained to make their Returns of the Persons Elected by the Majority of the Freeholders enrolled and those admitted by them reserving always the Liberty of objecting against the Persons admitted to or excluded from the Roll as formerl The Right of Apparent Heirs in Voting at Elections by Virtue of their Predecessors Infeoffments and of Husbands by Virtue of their Wives Infeoffments reserved Any Conveyance or Right which by the Laws of Scotland is sufficient to qualify any Person to Vote in the Elections of Members of Parliament for Shires or Stewartries and whereupon Infeoffment is taken on or before the first Day of June in the Year of our Lord One thousand seven hundred and thirteen shall intitle the Person or Persons so Infeoft to Vote at the Elections of Members to serve in the next ensuing Parliament No Husband shall Vote at any ensuing Election by Virtue of their Wives Infeoffments Wales who are not Heiresses or have not Right to the Property of the Lands on account whereof such Vote shall be Claimed Ordained St. 23. H. 6. c. 15. Vide post c. That every Sheriff after the Delivery of any Writ of Election to him made shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff c. of the Cities and Boroughs within his County commanding them by his Precept if it be a City to choose by Citizens of the same City Citizens and in the same manner and form if it be a Borough to choose a Burgess by the Burgesses of the same to come to the Parliament Enacted St. 23 H. 8. c. 26. Wales c. That the Dominion of Wales shall be stand and continue for ever from henceforth Incorporated United and Annexed to and with the Realm of England and that all and singular Person and Persons born and to be born in the said Principality Country or Dominion of Wales shall have enjoy and inherit all and singular Freedoms Liberties Rights Privileges and Laws within this Realm and other the King's Dominions as other the King's Subjects naturally Born within the same have enjoy and inherit For all Parliaments to be holden and kept for this Realm Wales two Knights to be elected to the same Parliament for the Shire of Monmouth in the like Manner Form and Order as Knights and Burgesses be elected and chosen in all other Shires And that one Knight shall be Elect-for every of the Shires of Brecknock Radnor Montgomery and Denbigh and for every other Shire within Wales and for every Borough being a Shire-Town within Wales except the Shire Town of the County of Merioneth one Burgess and the Election to be in like Manner as Knights and Burgesses of the Parliament be Elected in other Shires That the Burgesses of all and every Cities Boroughs St. 35. H. 8 c. 11. and Towns in the twelve Shires within Wales and County of Monmouth not finding Burgesses for the Parliament themselves and contributary to Wages of Burgesses of such Shire-Towns shall be lawfully admonished by Proclamation or otherwise by the Mayors Bailiffs and other Head Officers of the said Towns or by one of them to come and give their Elections for the Electing of the said Burgesses at such Time and Place Lawful and Reasonable as shall be assigned for the same intent by the said Mayors Chester Bailiffs and other Head Officers of the said Shire-Towns or by one of them in which Elections the Burgesses shall have the like Voice and Authority to elect the Burgesses of every the said Shire-Towns in such Manner as the Burgesses of the said Shire-Towns have and use That the County Palatine of Chester shall have two Knights for the said County Palatine St. 34 35 H. 8. c. 13. Chester and likewise two Citizens to be Burgesses for the City of Chester the same Election to be made under like Manner and Form to all Intents Constructions and Purposes as is used within the County Palatine of Lancaster or any other County or City within this Realm That the County Palatine of Durham may have two Knights for the same County St. 25. c. 2. c. 9. Durham and the City of Durham two Citizens to be Burgesses for the same City for ever hereafter to serve in Parliament the same Election from time to time to be made in Manner following viz. The Elections of the Knights to serve for the said County Palatine to be made by the greater Number of the Freeholders of the said County Palatine that shall be present at such Elections as is used in other Counties and that the Election of the said Burgesses from Time to Time Vid. Post 190.191 shall be made by the Major part of the Mayor Aldermen and Freemen of the City which shall be present at such Election See also the Stat. 34 35 H. 8. c. 24. Cambridge concerning the Payment of the Wages of the Knights of the Shire for Cambridge The Form of the Abjuration as altered by Stat. 4 Ann. c. 8. and as the same is now to be taken I A. B. do truly and sincerely acknowledge profess testify and declare in my Conscience before God and the World That our Sovereign Lord King George the Second is lawful and rightful King of this Realm and all other His Majesty's Dominions and Countries thereunto belonging And I do solemnly and sincerely declare That I do believe in my Conscience that the Person pretended to be Prince of Wales during the Life of the late King James and since his Decease pretending to be and taking upon himself the Stile and Title of King of England by the Name
Parliament began in October 28. Mor. rep 551. Sir Simon d'Ewes Jour 441 442. Moor 551. Eliz. and continued 'till the 29th Tho. Egerton Solicitor General was by Writ commanded to attend in Parliament upon the Lords in the upper House and after he had attended there three Days he was chosen a Burgess for Reading in Com. Berks and upon the Return of him the Commons went to the House of Lords and demanded that he might be dismissed from further attendance there and come into their House But upon Consultation and Defence made by himself the Lords retain'd him and the main Reason was because they were first posessed of him And in 5. Mor. ut Sup. Simon d'Ewes Jour 121 Col. 1 2. Eliz. Ouslow being a Member of the lower House upon a Prorogation of Parliament was made Solicitor General and when the Parliament met again he was commanded by Writ to attend the Lords House tho' chosen Speaker of the House of Commons but the Commons demanded him and it was granted because he was a Member of the lower House first so that this was the difference between his Journ Dom. Co. 21. Jac. 1.10 Martij Vid. Petyts Miscell Parl. 174. and the case above Sir Dudley Diggs said that in that Parliament when Bacon Attorney was in Question whither he ought to sit in the House of Commons or no twas over-ruled he ought not but yet in favour of him he was suffered to sit there and an Express order was made that never any other Attorney after should So careful were our Ancestors not to admit any to be a Representative of the People who was a Dependant on or could be influenc'd by the Court c. 18 Eliz. 1585. Concluded by the House Sir Simon d'Ewes Jour 249. Col. 1. 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. Popham Solicitor General Id. 281. Col. 1. upon demand made by the House was restored to them by the Lords beause he was a Member of the House of Commons and they possessed of him before he was Solicitor or had any Place of Attendance in the Upper House No Sheriff shall be chosen for a Knight of Parliament nor for a Burgess why Book of Entr. 41.1 Crompton's Jur. 3. 4 Inst 48. because nominated by the Crown 1. Car. 1. The Sheriff of the County of Buckingham was chosen Knight for the County of Norfolk and return'd 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. Scobel 96. Sess 2. Sir John Peyton Kt. returned the last Session and since chosen Sheriff Resolv'd 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 Touns Col. 185. Vid. de hoc Sir Simon d'Ewes Jour 38. Col. 1 2. 624. Col. 2. Kt. 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 Bailiffs of Southwark returned themselves Burgesses and were received See also Bohun's Collection 81.143.153.188.243.253.254 The Fee for the Knight of any County is four Shillings per Diem England and every Citizen or Burgess is to have two Shillings per Diem 4 Inst 46. Where one Person is chosen and returned to serve in several Places Scobel 18. Vide Sir S. d'Ewe's 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 No Tallage or Aid shall be taken or levied by Us or our Heirs St. So. E. I. c. 1. Of the Elected vide ante 14.21 in our Realm without the Goodwill and Assent of Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land The King wills and commands Stat. 5. R. 2. c. 4. Persons and Commonalty summoned to attend c. as of old and it is assented in Parliament by the Prelates Lords and Commons That all Persons and Commonalties which shall have the Summons of Parliament shall come to the Parliaments in the Manner as they are bound to do and have been accustomed within the Realm of England of old Times And if any Person of the same Realm Knights Citizens and Burgesses absenting to be a merced and punish'd as in Old Times which shall have the said Summons be Knight of the Shire Citizen of City Burgess of Borough or other Person Commonalty do absent himself and come not at the said Summons except he may reasonably England and honestly excuse him to our Lord the King he shall be amerced and otherwise punished as in old Times hath been used c. That Knights of Shires which shall be chosen in every Shire St. 1. H. 5. c. 1. Knights of Shires to be elected of such only who reside within the Countries at the Dat. of the Writ be not chosen unless they be resident within the same Shire the Day of the Date of the Writ of Summons And that the Citizens and Burgesses of the Cities and Boroughs be chosen Men Citizens and Burgesses to reside in and be free of the Cities and Boroughs Citizens and Burgesses resient dwelling and free in the same Cities and Boroughs and no other in any wise That such as have the greatest Number of them that may expend 40 s. by the Year Knights of Shires shall be such as have the majority of those that can expend 40 sa Year or more and be resident and above shall be returned Knight of the Shire c. and that they which shall be chosen shall be dwelling and resient within the same Counties Ordained St. 23. H. 6. c. 15. Citizens and Burgesses only to be elected by Citizens and Burgesses and the Sheriff to direct his Precept accordingly c. That every Sheriff after the Delivery of any Writ of Election to him shall make and deliver without Fraud a sufficient Precept under his Seal to every Mayor and Bailiff or to Bailiffs or Bailiff where no Mayor
make and deliver without Fraud England a Precept under his Seal to every Mayor and Bailiff or to Bailiffs or Bailiff where no Mayor is of the Cities and Boroughs within his County reciting the said Writ and commanding them if it be by a City to choose by Citizens of the same City Citizens and if it be a Borough a Burgess by the Burgesses of the same to come to the Parliament And that the same Mayor and Bailiffs Mayors Bailiffs c. to return the Precept to the Sheriff by Indentures of the Election and the names of the elected Sheriffs to return the Writ and every Return made by such Mayors Bailiffs c. or Bailiffs or Bailiff where no Mayor is shall return the Precept to the same Sheriff and them to be made of the said Elections and of the Names of the said Citizens and Burgesses by them so chosen and thereupon every Sheriff shall make a rightful Return of every such Writ and of every Return by the Mayors and Bailiffs or Bailiffs or Bailiff where no Mayor is to him made And that every Sheriff Sheriffs acting contrary to this Statute or any other Statute for Elections to pay 100 l. to the King and suffer a Year's Imprisonment with out Bail per Stat. 8 Hen. 6 ch 7. and forfeit to every Person chosen a Knight Citizen or Burgess and not duly returned or to any otherwhich in their Default will sue 100 l to be recovered by Action of Debt against the Sheriff his Executors or Administrators with Costs wherein no Wager of Law c. at every time that he doth contrary to this Statute or any other Statutes for the Election Knights Citizens and Burgesses before this Time made shall incur the Pain contained in the Statute England made the 8th Year of the then King's Reign and moreover shall forfeit and pay to every Person hereafter chosen Knight Citizen or Burgess in his County and not duly returned or to any other Person which in Default of such Knight Citizen or Burgess will sue an hundred Pound whereof every Knight Citizen and Burgess so grieved severally or any other Person which in Desault will sue shall have his Action of Debt against the said Sheriff or his Executors or Administrators to demand and have the said 100 l. with his Costs spent and that in such Action the Desendant shall not wage his Law or have any Essoign And if any Mayor and Bailiffs or Bailiffs or Bailiff Mayors Bailiffs c returning other than those chosen by Citizens and Burgesses shall forfeit 40 l. to the King and to every Person chosen a Citizen or Burgess and not by them returned or to any other that in Default of such Citizen or Burgess will sue 40 l. more to be recovered by like Action of Debt with Costs where no Mayor is shall return other than those which be chosen by the Citizens and Burgesses of the said Cities or Boroughs he shall incur and forfeit to the King 40 l. and moreover shall forfeit and pay to every Person so chosen Citizen or Burgess and not by the same Mayor and Bailiffs or Bailiff or Bailiffs where no Mayor is returned England or to any other Person which in Desault of such Citizen or Burgess so chosen will sue 40 l. whereof every of the Citizens and Burgesses so grieved severally or any other Person which in their Default will sue shall have his Action of Debt against every of the said Mayor and Bailiffs or Bailiffs or Bailiff where no Mayor is against their Executors or Administrators to demand and have of every of them 40 l. with his Costs expended And that in such Action of Debt no Defendant shall wage his Law nor have any Essoign And every Sheriff that maketh no due Election of such Knights in convenient Time that is to say every Sheriff in his full County betwixt the Hour of Eight and the Hour of Eleven before Noon without Collusion and that maketh not good and true Return of such Elections of Knights in Manner aforesaid Sheriff not making Election of Knights of the Shire in a full County Court between 8 and 11 in the Morning and a good Return accordingly to forfeit 100 l. to the King and 100 l. more to him that will sue to be recovered by like Action of Debt with Costs shall forfeit to the King an hundred Pound and also incur the Pain of 100 l. to be paid to him that will sue him his Executors or Administrators by Way of Action of Debt with his Costs expended without waging of Law or having Essoign as aforesaid England Provided always Such Actions to be brought by such Knight Citizen and Burgess within 3 Months after the Commencement of suce Parliament and to be proceeded in without Frand And after that time by any other See Cromp. Juris 3. Hakewel 43. That every Knight Citizen and Burgess chosen and not returned as aforesaid shall begin his said Action within three Months after the same Parliament commenced to proceed in the same Suit effectually without Fraud And if he doth not so another that will sue shall have the said Action of Debt as is before said and shall recover the same with his Costs and that no Defendant in such Action shall wage his Law nor be essoign'd And that such Process shall be in the Actions aforesaid as in a Writ of Trespass done against the Peace at the Common Law That the Knights of the Shires shall be notable Knights of the same Counties for which they shall be chosen Like Process to be in such Actions as in Trespass at Common Law Provided That Knights of the Shires be Knights of the Counties they shall be elected for or Esquires or Gentlemen able to be Knights and not Yeomen or under or otherwise such notable Esquires or Gentlemen born of the same Counties as shall be able to be Knight and no Man to be such Knight which standeth in the Degree of a Yeoman and under That Elections shall be made for the Sheriffs and Boroughs in Monmouthshire heretofore Part of Wales and in Wales England in like Manner St. 27 H. 8. c. 26. Duties of Sheriffs and other returning Officers in Wales like the same in England Form and Order as Knights and Burgesses be elected in other Shires of this Realm That the County Palatine of Chester shall have two Knights for the said County St. 34 and 35 H. 8. c. 13. Writ of Election under the Great Seal for Elections in Chester to be directed to the Chamberlain c. of Chester and his Precept thereon to the Sheriff of the County and two Citizens to be Burgesses for the City of Chester to be elected and chosen by Process to be awarded by the Chancellor of England unto the Chamberlain of Chester his Lieutenant or Deputy for the Time being and so like Process to be made by the Chamberlain his Lieutenant or Deputy to the Sheriff of the said County of Chester and the same Election to be
eight Days and give four Days Notice of the Day appointed there shall be forty Days between Teste and Returns of the Writs of Summons and that the Lord Chancellor Lord Keeper or Lords Commissioners of the Great Seal for the Time being shall issue out Writs for Election of Members to serve in the same Parliament with as much Expedition as the same may be done And that as well upon the calling or summoning any New Parliament as also in case of any Vacancy in Parliament the several Writs shall be deliver'd to the proper Officer to whom the Execution thereof doth belong or appertain and to no other Person whatsoever And that every such Officer upon the Receipt of the same Writ shall upon the back thereof indorse the Day he receiv'd the same and shall forthwith send his Precept or Precepts to each Borough Town Corporate Proper Officer of the Cinque-Ports allowed six Days from the Receipt of the Writ for the Delivery by a sulsequent Statute 10 11 W. 3. c. 7. Port England or Place within his Jurisdiction where any Member or Members are to be elected to serve in such New Parliament or to supply any Vacancy in Parliament and within three Days after the Receipt of the said Writ shall by himself or proper Agent deliver or cause to be delivered such Precept or Precepts to the proper Officer of every such Borough Town Corporate Port or Place within his Jurisdiction to whom the Execution of such Precept doth belong or appertain and to no other Person And every such Officer upon the back of the same Precept shall indorse the Day of his Receipt thereof in the Presence of the Party from whom he received such Precept and shall forthwith cause Notice to be given of the Time and Place of Election and shall proceed to Election thereupon within the Space of eight Days next after his Receipt of the same Precept and give four Days Notice at least of the Day appointed for the Election Neither the Sheriff nor his under Sheriff in any County or City No Sheriff c. in any County or City nor Mayor c. of any Borough Town Port or Place to whom the Execution of any Writ or Precept belongs to pay or receive any Fee c. for making out Receipt Delivery Return or Execution of the same nor the Mayor Bailiff Constable Portreeve or other Officer or Officers of any Borough England Town Corporate Port or Place to whom the Execution of any Writ or Precept for electing Members doth belong or appertain shall give pay receive or take any Fee Reward or Gratuity for making out Receipt Delivery Return or Execution of any such Writ or Precept Upon every Election to be made of any Knight or Knights of the Shire to serve in Parliament Sheriff for Election of Knights of the Shire to hold his County Court where the same has been most usually kept for forty Years last and proceed to the Election the next Court unless it happen within six Days after the Receipt of the Writ or the same Day and then to adjourn giving ten Days notice of the Time and Place If a Poll required the Sheriff c. forthwith to proceed thereon publickly and appoint Clerks to take the Poll in his c. Presence who shall be sworn to take it indifferently and set down each Free-holder's Name the Place of his Freehold and for whom he polls and to poll no Freeholder not sworn if requir'd by any Candidate the Sheriff of the County where such Election shall be made shall hold his County Court for the same Election at the most publick and usual Place of Election within the said County and where the same has most usually been for 40 Years last past and shall there proceed to Election at the next County Court unless the same fall out to be held within six Days after the Receipt of the Writ or upon the same Day and then shall adjourn the same Court to some convenient Day given ten Days Notice of the Time and Place of Election and in case the said Election be not determined upon the View with the Consent of the Freeholders there present but that a Poll shall be required the said Sheriff or in his Absence the Under-Sheriff England with such others as shall be deputed by him shall forthwith there proceed to take the said Poll in some open or publick place or places by the same Sheriff or his Under-Sheriff in his Absence or others appointed for the taking thereof as aforesaid And for the more due and orderly proceeding in the said Poll the said Sheriff or in his Absence his Under-Sheriff or such as he shall depute shall appoint such Number of Clerks as to him shall seem convenient for the taking thereof which Clerks shall all take the said Poll in the presence of the said Sheriff or his Under-Sheriff or such as he shall depute and before they begin to take the said Poll every Clerk so appointed shall by the said Sheriff or his Under-Sheriff aforesaid be Sworn truly and indifferently to take the same Poll and to set down the Names of each Free-holder and the Place of his Free-hold and for whom he shall Poll and to Poll no Free-holder who is not Sworn if so required by the Candidates or any of them which Oath of the said Clerks the said Sheriff or his Under-Sheriff or such as he shall depute are hereby impowered to administer and the Sheriff or his Under Sheriff shall appoint for each Candidate such one Person as shall be nominated to him by each Candidate to be Inspectors of every Clerk England who shall be appointed for taking the Poll Sheriffs c. to appoint for each Candidate one Person nominated by such Candidate to be Inspectors of every Clerk of the Poll. And to sweareach Free-holder before his Poll to be taken if by any Candidate required to his Freehold and every Free-holder before he is admitted to Poll at the same Election shall if required by the Candidates or any of them first take the Oath in this Act contained Which Oath the Sheriff by himself or his Under-Sheriff or such sworn Clerks by him appointed for takeing the said Poll as aforesaid are hereby authorized to administer The said Sheriff Sheriff c. at the Place of Election to proceed to the Poll and not adjourn the County Court to any other Place without the Candidates Consent nor without such Consent delay or discontinue the Poll. or in his Absence his Under-Sheriff or such as he shall depute shall at the Place of Election proceed to the Polling all the Free-holders then and there present and shall not adjourn the County Court then and there held to any other Town and Place within the same County without the Consent of the Candidates nor shall by any unnecessary Adjournment in the same Place of Election protract or delay the Election but shall duly and orderly proceed to take the said Poll from Day to Day
be made of a Knight of a Shire within England St. 10. An. ch 23. Sheriff c. to swear each Freeholder if by any Candidate or Voter required Sheriff c. shall enter the Place of the Elector's Freehold of his Abode and Jurat against the Name of every Voter sworn and with in twenty Days after the Elections deliver the Poll-Books upon Oath to he Clerk of the Peace c. every Free-holder before he is admitted to Poll shall if required by the Candidates or any of them or any other Person having a Right to Vote first take the Oath in this Act contained which Oath the Sheriff c. is to administer And in taking the Poll the Sheriff c. shall enter not only the Place of the Elector's Freehold but also the Place of his Abode and Jurat against the Name of every Voter who shall be tender'd and take the Oaths hereby required and the Sheriff or returning Officer shall within twenty Days after such Election deliver over upon Oath to be administred by the two next Justices of the Peace one of the Quorum unto the Clerk of the Peace of the same County all the Poll-Books of such Elections and in Counties where there are more than one Clerk of the Peace the Original to one and attested Copies to the rest to be kept among the Records of the Sessions of the Peace for the County And of an Act 7 Guil. III. Intituled G. Britain An if any Quaker Sheriff c. to admit any Quaker to vote during the Act 7 W. 3. and accept his Affirmation to the Effect of the Oath according to the said Act instead thereof and enter Affirmat against the Name of such Quaker during the Continuance of an Act 7 Guil. III. Intituled An Act that the solemn Affirmation and Declaration of the People called Quakers shall be accepted instead of an Oath in the usual Form shall upon such Election if required by the Candidates or any of them declare the Effect of the said Oath upon his solemn Affirmation in such Manner and Form as is directed by the said Act every such Quaker shall be capable and admitted to give his Vote for the Election of any such Member within England and every Sheriff c. is hereby authorized and required to accept such Affirmation instead of the said Oath and shall enter Affirmat against the Name of every such Quaker That any of the Electors present 2 St. 12 Annae Praeses of the Meeting upon Request of any Elector of a Shire or Stewartry in Scotland to swear either Elector or Candidate to their Estates suspecting any Person or Persons either Electors or Candidates for Shires or Stewartries in Scotland to have his or their Estates in Trust and for the Behoof of another may require the Praeses to the Meeting to tender the Oath in this Act contained and the said Praeses is required to administer the same Returning Officers are ordained to make their Returns of the Persons elected by the Majority of the Freeholders inrolled G. Britain and those admitted by them Returning Officers to return Persons elected by a Majority of Freeholders in rolled and those admitted by them with Liberty of objecting c. reserving always the Liberty of objecting against the Persons admitted to or excluded from the Poll as formerly All Sheriffs of Shires and Stewarts of Stewartries shall Sheriffs and Stewarts under 50 l. Penalty half to the Queen half to him that sues before the Court of Session c. to make publick Intimation at the Parish Churches within their Jurisdictions three Days before the Diet of Elections under the Pain of 50 l. Sterling one Moiety whereof shall be to the Queen Her Heirs and Successors and the other to the Person or Persons who shall sue for the same to be recovered before the Court of Session by any Action summarily without abiding the Course of the Roll make the publick Intimations required by the Laws of Scotland at the several Parish Churches within their respective Jurisdictions at least three Days before the Diet of Elections That the Oath or Affirmation which see ib. the Officer or Officers presiding St. 2 G. 2. ch 4. Presiding Officer to administer the Oath or Affirmation on Forfeiture of 50 l. or taking the Poll at such Election is and are hereby impowered and required to administer gratis if demanded upon Pain to forfeit the Sum of Fifty Pounds of lawful Money of Great Britain G. Britain to any Person that shall sue for the same to be recovered with full Costs by Action of Debt Bill Plaint or Information in any Court of Record at Westminster wherein no Essoign Protection Wager of Law or more than one Imparlance and if the said Offence shall be committed in that Part of Great Britain called Scotland then to be recovered together with full Costs by summary Action or Complaint before the Court of Session or by Prosecution before the Court of Justiciary there for every Neglect or Refusal so to do and no Person shall be admitted to poll till he has taken and repeated the said Oath in a publick Manner in Case the same shall be demanded as aforesaid before the returning Officer or such others as shall be legally deputed by him If any Sheriff Mayor Sheriff or other returning Officer admitting any to be polled before sworn to forfeit 100 l. Bailiff or other returning Officer shall admit any Person to be polled without taking such Oath or Affirmation if demanded as aforesaid such returning Officer shall forfeit One hundred Pounds to be recovered as aforesaid together with full Costs and if any Person shall vote or poll at such Election without having first taken the Oath or if a Quaker having made his Affirmation as aforesaid G. Britain if demanded such Person shall incur the same Penalty Voters to incur the like Penalty Returning Officer after reading the Writ to take the following Oath which the Officer is subject to for the Offence above mentioned That every Sheriff Mayor Bailiff Headborough or other Person being the returning Officer of any Member to serve in Parliament shall immediately after the Reading the Writ or Precept for the Election of such Member take and subscribe the following Oath which see ante Which Oath any Justice or Justices of the Peace of the said County City Corporation or Borough where such Election shall be made or in his or their Absence any Three of the Electors are hereby required to administer and such Oath so taken shall be entred among the Records of the Sessions of such County City Corporation and Borough as aforesaid If any returning Officer Penalty of wilful Perjury Elector or Person taking the Oath or Affirmation herein before mentioned shall be guilty of wilful corrupt Perjury or of false affirming and be thereof convicted by due Course of Law he shall incur and suffer the Pains and Penalties which by Law are enacted or inflicted in Cases of wilful and corrupt Perjury That all
no Person who shall hereafter come to the Possession of this Crown shall go out of the Dominions of England Scotland or Ireland without Consent of Parl. 8. That no Person who has any Office under the King Note or receives a Pension from the Crown shall be capable of serving as a Member of the House of Commons With divers other Resolves for better securing the Rights and Liberties of the People on which the Stat. 12. and 13. W. 3. c. 2. was made CHAP. XVII Passing of Bills See for this a MS. Discourse penes W. Bohun Journal Dom. Com. ON the 27th of July 1660 it was represented to King Charles the Second That by the constant Course of Parliament they have used to receive Acts of Grace and such Bills as concern the Redress of Grievances and Confirmation of the Subjects Liberties before they present Bills of Aid or Supply but now in Confidence of His Majesty c they tender a Money-Bill c. i. e. before a Redress of Grievances All Bills take effect and work from the Beginning of the Parliament or Session Hob. 111.33 H. 6.18 Bro. tit Parl. 86. tit Relation 35. Plow 79. Town Col. 209. except it be otherwise ordained by the Act itself 43 Eliz. 1601. while there were divers Disputes about a Bill Mr. Fleming the Queen's Solicitor took the Bill to look a Word in it after he had done and laid it on the Board one stood up and said Mr. Speaker after a Bill is ingrossed you ought to hold it in your Hand and let no Man look into it which was confessed by all And so the Speaker took it When a Bill is read Cook 22.115 the Speaker doth open the Parts of the Bill so that each Member of the House may understand the Intention of each Part of the Bill Such Bills Hakewel 134. as being first passed in one House are sent unto the other are always sent in Parchment fairly ingrossed Publick Bills are in due Course to be preferred in Reading and Passing before Private And of Publick Ibid. Col. 12.116 such as concern the Service of God and Good of the Church Secondly such as concern the Commonwealth in which are included such as touch the Person Revenue or Houshold of the King Queen c. and they ought especially to be preferred in Passing Lastly Private Bills are to be offer'd to be read and passed in such Order as they were preferred Town Col. 270. And they that carry them to give some brief Commendation of them Any Member of the House may offer a Bill for Publick Good Scobel 40. except it be for imposing a Tax which is not to be done but by Order of the House first had If any Member desire Ibid. that an Act made and in Force may be repealed or altered he is first to move the House in it and have their Resolution before any Bill to that Purpose may be offer'd and if upon the Reasons shew'd for repealing or altering such Law the House shall think it fit they do usually appoint one or more of the Members to bring in a Bill for that Purpose But the Speaker is not precisely bound to any of these Rules Hakewel 136. for the preferring of Bills to be read or passed but is left to his own good Discretion except he be specially directed by the House to the contrary and tho he be earnestly pressed by the House for the reading of some one Bill yet if he have not had convenient Time to read the same over and to make a Breviat thereof for his own Memory the Speaker doth claim a Priviledge to defer the Reading thereof to some other Time The Clerk being usually directed by the Speaker but sometime by the House what Bill to read Hakewel 137. with a loud and distinct Voice first reads the Title of the Bill and then after a little Pause the Bill it self which done kissing his Hand he delivereth the same to the Speaker who standeth up uncover'd whereas otherwise he sitteth with his Hat on and holding the Bill in his Hand saith The Bill is thus intituled and then readeth the Title which done he openeth to the House the Substance of the Bill which he doth either trusting to his Memory or using the Help or altogether the Reading of his Breviat which is filed to the Bill Sometimes reading the Bill it self Hakewel 137. Vido Scobel 42. especially upon the Passage of a Bill when it hath been much alter'd by the Commitees so that thereby it differeth very much from the Breviat When he hath open'd the Effect of the Bill he declareth to the House Id. 138. That it is the first Reading of the Bill and delivereth the same again to the Clerk The Bill containing the King's General Pardon hath but one Reading in the Lords House and one below Id. 138. Vid. Toâ— Col. 29 44 126. Vide Sir Simon d'Ewes Jour 91. Col. 2. The Reason is because the Subject must take it as the King will give it without any Alteration and yet many times Exceptions are taken at the Reading thereof for that it is not so favourable as in former Times The like of a Bill of Subsidies granted by the Clergy Hakewel Ibid. The usual Course is to spend the Morning before the House grow full Id. 139. in the first Readings and to defer the second or third Reading till the House grow full All Men of Law know that a Bill Town Cal. 238. which is only expository to expound the Common Law doth enact nothing neither is any Proviso good therein No Knight Col. 12.116 Citizen or Burgess ought to speak above once to one Bill in one Day unless sometime by Way of Explication At the first Reading of the Bill Hakewel 139. it is not the Course for any Man to speak to it but rather to consider of it and to take Time till the second Reading unless it carry Matter of apparent Hurt to the Commonwealth and so to be rejected Nor for any Addition Ibid. for thereby it is imply'd That the Body of the Bill is good which till the second Reading doth not regularly come to the Trial. If any Bill originally begun in the Commons House Id. 140. Scobel 42. upon the first Reading happen to be debated too and fro and that upon the Debate the House do call for the Question it ought to be not Whether the Bill shall be read the second Time for so it ought to be in ordinary Course but whether it shall be rejected If a Bill coming from the Lords be spoken against Hak. Ibid. and pressed to be put to the Question upon the first Reading the Speaker in Favour and Respect thereto shou'd not make the Question for Rejection as in the former Case but shou'd first make the Question for the second Reading and if that be deny'd then for Rejection But usually when any such Debate is the Speaker doth forbear to make any Question at all thereupon except he be much pressed thereto it