27 and 28 Eliz. for chusing of Knights and Burgesses they elected one Mr. Tresham and Mr. Fermour for the Knights after issued out another Writ of Election out of the Chancery and they elected the said Mr. Tresham and Mr. Heyden both writs were returned and which of them should be Knights was the Question the matter was long debated and at length resolved that the first Writ should stand and the last void Having shewed thus briefly of the Manner of Election onely a Word more of the continuance of their Authority being thus chosen and returned namely that as long as the same Parliament continueth they shall still remain Knights of the Parliament but being once dissolved their power is throughly determined for in a new Parliament the Knights of the former Parliament cannot sit as Knights therein except they be again to that end new elected 4 E. 4.44 b. by Catesby Wherefore it is by him said there That if a Parliament be summoned and the Members of both Houses appear 4 E. 4.44 b and sit during which their sitting if the Parliament dissolve by demise of the King the new King shall make a new Election The second day of the Parliament Philip Courtney being returned for one of the Knights of Devon came before the King in Parliament and for that he was accused of sundry haynous matters prayed to be discharged until he were purged the which the King granted and on Munday after at the request of the Commons the King restored him to his place and good name for that he had submitted himself to reasonable arbitrement 16 R. 2. n. 6. I thought to have discoursed briefly touching the Fees of Knights and Burgesses of Parliament and in what manner and by what writ they are to be levyed and what Lands are chargeable or to be discharged thereof but I omit this in regard the levying of those wages hath been so long time out of use Now I shall touch very lightly upon the manner of proceeding upon Bills in the House of Commons and upon the manner of Attaynder in Parliament and the manner of proceeding upon writs of errour in Parliament Causes in the House of Commons are proceeded upon in two sorts the one If any man whatsoever do feele or do know the Commonwealth to be grieved with any Enormity and be desirous for the Weale of his Country to have the same reformed he may exhibit privately unto the Speaker a Bill made and framed in the manner of Law with Preamble purview and proviso containing the said grief and manner how he would have it redressed which Bill the Speaker shall afterwards cause the Clerk of the Parliament openly to read in the same house and after expound the same himself to the House and then upon the matter to fall to disceptation and debating The other way is by motion made of the grievance whereupon the House may commit the matter to such persons as shall frame a Bill thereof and so the matter likewise to come to debating the reason of which speech there by motion is grounded on the Writ of Summons of the Parliament and because all men in the House have not the skill aptly to frame a Bill But to propound any matter in the House by way of Question concerning their Opinions in any thing it is not usual but utterly to be rejected And therefore in the Parliament 31 Eliz. one Mr. Damport offered unto the House certain Questions to be considered of which were then refused and the House resolved upon the former orders In the Parliament holden 27 Eliz. when as a Bill concerning fraudulent gifts was dashed and rejected because of imperfections therein nevertheless upon a motion made by Mr. Morish of the middle Temple the House considered of the matter a new and committed it to have a new Bill drawn which was done and the same passed and is the same Act now in print touching that matter In Parliament 15 E. 4.2 a. if the greater part of Knights and Burgesses assent to the making of an Act of Parliament and the lesser part will not agree to that Act yet shall it be a good Act to dure in perpetuity which greater number of voyces in the Higher House may easily be known in that they are severally demanded and the Clerk of the House doth number them but of the House of Commons otherwise it is Pl. Com. Rice Thomas and Bulkly 126. a. for there the assent is tryed by the sounding of voyces all at one time and therefore if the assent there be issuable the party that so pleadeth it shall say it was agreed by the greater number generally But ere they do proceed to the Question it is asked them if they will so do then is it said by the Speaker to this effect Such as will affirm the Bill say I and such as will not say No the one or other being known by the greatness of the sound of the voice the matter is held so determined and this may be done upon the first reading of a Bill for in the Parliament holden in 31 Eliz. there was an Act exhibited that the issue in tayle might be charged in debt as heir and upon the first reading was debated on both sides and at length rejected by like sound of voyces If the Bill be first exhibited in the House of Commons and there twice read 33 H. 6.17 b. 18. a. 7 H. 7.16 b. then is it engrossed and so read again the third time if after upon disputation thereof they do proceed to the Question and so agree by the greater number of voyces to pass as an Act then is it indorsed in this manner Soit bayle as Seigniors which Bill if it also be agreed upon by the Lords it is likewise indorsed Les Seigniors ont assentus and so waiteth it onely the assent of the Monarch to make it an Act of Parliament but if the Lords will alter the same that may be done in two sorts either by such meanes as doth include and stand with the doings of the Commons as if the Commons grant Poundage for four years and the Lords do grant it but for two years this Bill shall not be redelivered unto the Commons for that it standeth with their grant but if the agreement of the Lords do not stand with the agreement of the Commons then it is sent againe to the Commons to be reviewed and again to be debated 33 H. 6.17 b. Attainder by Parliament Concerning Attaynder by Parliament the party which is to be attainted by Parliament ought first to be be indicted in some other Court having Jurisdiction to receive the same which enditement ought to be sent into the higher House of Parliament by vertue of a Certiorari upon which inditement the party shall be called to answer before the Lord Stewards of England and other the Barons but because the Archbishops and Bishops being the Lords Spiritual cannot assent unto the death of any person
therefore they shall by their Proxie make their Procurator and depart the House the party indited shall be put to plead to the inditement whereunto if he plead Not guilty he shall be thereof tried by his Peers and first the most puisne Baron shall be examined of his verdict by the Lord Steward and so in order until all they man by man have delivered their Opinion of the matter either in convicting the person standing accused before them or by clearing and acquitting him of the crime if by their verdicts he be thought guilty of the offence thereof is made an Act which when it hath the consent of the King it is then esteemed a Judgement and the Offender thereby is attainted Herein is to be noted that this verdict of the Lords is not upon their Oaths but upon their Honour for persons of so high degree should have so great care for the preservation of their Honour as themselves or any other have for the safe-Guard of their Souls which is admitted in that and in all other Attaynders per Pares by the Peers as well for that they are in that place not onely as Triers of the Fact but also Judges appointed over the fault and never was it used that Judges should verifie their sentence upon attestation thereof upon their Oaths Secondly in this manner of trial they must think that the bread which is broken unto others by them may by the just Judgement of God in like measure be broken unto themselves in that he whom they censure was in equal degree unto themselves Thirdly also for that where the Law requireth at the hands of other persons an Oath it ordaineth that Barons should regard their Honors Secondly it is to be noted that the party so arraigned in Parliament ought to be called to answer for himself for the Law of England is not so unreasonable to condemn any that will defend himself and it hath heretofore been noted as an error in the judgement of the Parliament 21 E. 3.46 b. when they have given a judgment in the cause of any private person he being not called thereunto and that in a civil matter of much less moment then is the cause of life and death wherefore if the party may be had and do not willingly and wilfully absent himself he is thereunto called to answer and therefore the Parliament in 37 and 38 H. 8. was freed of fault herein upon the Attainder of the Duke of Norfolk he then being in the Tower for that it was signified by the Lord Burghley Lord Treasurer in the Star-chamber when as Philip the last Earle of Arundel was called to answer in the Star-chamber to an undutiful Letter written by him to her Majesty that the said Duke was sent unto and would not come to the Parliament and the said Lord Treasurer affirmed that he then being of the lower House was sent thither with others see for this 1 Mar. Dyer 93. p. 24. The Lord high Steward giveth the Judgement upon Attaynder of treason 1 H. 4.1 a. 13 H. 8.12 a. as appeareth by the Judgment given in Parliament 21 R. 2. n. 15 16. The Bills of Attaynder in Parliament are intituled Placita Coronae coram Domino Rege in Parliamento suo Errours in Parliament reversed Now touching the manner how errors in the Kings Courts committed are reversed in Parliament I shall be very brief First the parties that are grieved through any erronious judgment given against them 22 E. 3.3 a. 12 Ass p. 22. 2 H. 7.19 ought to make their petition un-the King or Monarch that it would please him to permit that erronious judgement as is given against them in such Courts from whence they cannot further appeal may be in Parliament reviewed and reversed This their Petition ought to contain the effect of their grief and ought to be endorsed Let right be done unto the parties In this manner Soit Droit fait as Parties Hereupon the Lord Chancellor of England shall make a Writ of error 1 H. 7.19 n. directed unto the Judges of such Courts where the error was committed and now to be reversed by the Parliament by vertue of which writ the Lord chief Justice of England shall in person bring before the Lords in the higher House the said Petition the said Writ of error and the Rolls wherein is contained the judgment and proces wherein error is supposed H. 7.19 2 E. 3.3 and shall there leave the same petition writ and the transcript of the said Record but not the Record it self with the Clerk of the Parliament for that the Record it self shall be brought back again into the said Court for these Reasons 8 H. 5. f. Errour 88. 23 Eliz Dy. 375. First because these Rolls do concern other matter Secondly because if judgment should be there affirmed then the inferiour Court may have Record whereupon to a ward Execution And lastly for that it is a Rule that when a Record is sent from an inferior Court to a higher Court it is never remanded so that if the former judgement should be affirmed in the Parliament and the Parliament after dissolved the party plaintiff should be without remedy wherefore the record is brought back again as aforesaid 1 H. 7.20 And thus the said Petition indorsed the Writ of Errour and the Transcript remaining in the hands of the Clerk of the Parliament the matter shall be signified unto the Lord Steward by whom together with the other Lords Spiritual and Temporal 22 E. 3.3 a. and with the Iudges the same shall be determined or otherwise the King may appoint out a Commission and thereby assigne certain Earles and Barons who together with the Iudges shall determine the same but the Commons shall not intermeddle therewith moreover after that the Transcript is examined with the Record and that the Record is sent back to the former Court the party plaintiff ought to assigne his Error in writing and thereupon shall have a Scire facias against the defendant ad audiendum errores which writ shall be returned the next Parliament ensuing for that the common day of a Scire facias is forty days but because it is uncertain whether the Parliament shall be dissolved or no before that time therefore the said writ shall be returned the next Parliament 8 H 5. f. tit Error 88. but if the writ be sued forth at a Session of Parliament the same shall be returned the next Session after the said errors assigned and the Scire facias pursued the plaintiff shall not enter into Recognisance to satisfie the judgment 1 H. 7.20 if it shall happen to be given against him or to render his body to prison in such manner as is done in a writ of error in the upper Bench sued upon an erronious judgment given in the Common place but he shall still remain in prison for if the party plaintiff should be at large upon such recognisance acknowledged in
Parliament then if the Parliament be dissolved the party is at large and the other without remedy If the King upon such Petition do appoint Commissioners for the determining of the Errors and upon the Scire facias the parties do appear 22 E. 3.3 if the Parliament be dissolved before the cause determined the Commissioners after the Parliament is ended cannot proceed to the determination of the matter or do any thing therein but they must expect a new Session of Parliament If judgment be given in Parliament and that also happen to be erronious there is no Court that can redress this Error but the Parliament it self for as much as it is the highest Court of the land and there is no higher Court in which he may have remedy 7 H. 6.29 a. As touching the Courts whose judgments are to be rereversed in Parliament First it is to be noted That all erronious judgments given in the Kings Bench touching matter and substance of Law or matter in fact were by the course of the common Law to be reversed in Parliament 7 H. 6.28 because it was before the King himself and therefore it was ordained by several Statutes made to avoid delay of suits 36 E. 3. cap. 10. 50 E. 3. 1 R. 2. 2 R. 2. that once every year a Parliament should be holden But now by a Statute made in the twenty seveth year of Queen Elizabeth it is ordained in the eighth Chapter that all erronious judgments in matters in Law shall be considered and reversed by the Iustices of the Common Place 27 Eliz cap. 8. and the Barons of the Exchequer or by six of them but if the error in the Kings Bench be in matter of Process or proceeding 7 H. 6.28 2 R. 3.22 27 H. 8.16 3 Eliz. Dyer 19 b. p. 93 the same might alwayes have been reversed in the said Court of the Kings Bench although if judgment be there given upon a plea which is before discontinued the same cannot be reversed but by Parliament In all cases in the Chancery wherein the Lord Chancellor is to adjudge according to the common Law 16 E. 3. fitz tit brief 651. Com. 393. 18 E. 3.25 17 Ass p. 24. 42 Ass p. 22. 27 H. 8.16 b. as in the repeal of Patents actions against priviledged persons Audita Querela upon Statutes c. There if erronious judgments be given the same is to be reversed in the Kings Bench 14 Eliz. Dyer 315. P. 100. although some opinions in other Books have been to the contrary 37 H. 6.14 a. but in matter of conscience their decrees are reversible by themselves Thus have I briefly touched upon several things which upon some other occasion I shall inlarge Touching such matters as are proper for the Parliament you shall see in an Excellent Book lately printed being an exact Abridgement of the Records in the Tower of London from the Reign of King Edward the second unto King Richard the third of all the Parliaments holden in each Kings Reign and the several Acts in every Parliament Collected by the learned payns of Sir Robert Cotton and revised and published by the unwearied labors of VVilliam Prynne of Lincolns-Inne Esquire a Book worthy of the Study of all the learned Gentlemen of this Nation I conclude with my humble prayer that the all-wise God would grant to this Nation a setled Government and a quiet State that our English Parliaments may recover and enjoy their ancient honour and lustre John Doddridge From my Chamber in the middle Temple the third of Dec. 1657. The several Opinions of sundry Antiquaries touching the Antiquity Power Order State Manner Persons and proceedings of the high Court of Parliament in England THere is no king in the world nor any subjects of any king that have a greater and more binding and yet a more free Council then this in our Parliament in England whose general Acts since all men must take knowledge of it may be profitable to every man to understand the Dignity Order and Antiquity thereof Soveraignty the highest degree of Honour is imported in the very Summons For the king himself jure Regio as a Flower of the Crown hath the absolute power of calling and dissolving it Order it self stands represented when the Court is sitting such is the Majestie of the Prince the Gravity of the persons their State in proceeding But this being often seen and so best known and the other unknown to many that sit and often see the order of this Court therefore we will treat principally of the Antiquity Nature Power and Jurisdiction of this high Court of Parliament And first of the Appellation the word Parliament Some derive it from Peers à potiore parte quasi parium Conventum or as others say quasi parium lament ' others more probably from the French word parler or that of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to treat and confer freely The French Histories say that this Name in this sense began at the Assembly of the Peers of France anno Dom. 1200. but it appeareth to be more ancient with us then of that time for Ingulphus who died 1009. saith In publico nostro Parliamento c. taking it there for a Meeting or Chapter of the Abbot Ingelo King of Polonia in the Polish State calleth the Assembly Generale Parliamentum This may raise a doubt of the former etymologie of it from the French word parler But no doubt the word was brought into the Realm by the French Monks and after applied by the Statists in the time of H. 1. to the General Council of the Kingdom But the like Assemblies as Parliaments are being much more ancient then the Parliament underwent these names of old times The Britains called them Kyfrithin because Laws were therein made by the English Saxons in their English Graduisis a Council sometimes Wittena Mota a Meeting of wise men Sometimes of the Greek word Synodos The Latine Authors of that Age call it Consilium Magnatum Curiae altissima praesentia Regis Prelatorum Procerumque Collectorum as appeareth by the Charter of Withlasias anno 833. and of King Edgar anno 966. And now to step a Nomine ad Rem before the time of Soveraignty Natures law directed men to the love of Society and care to preserve it and gained free consent even of lawless men to admit of certain Customs as Laws from hence framing matter of Form for a Commonwealth But new springing mischiefs standing remediless by the elder Customs caused for remedy thereof the calling of yearly Councils the original no doubt of our after-Parliaments And it shall appear that our Kingdome from as grounded Authority as any other Nation can prove of old the practise of these great Assemblies then called Counsels now Parliaments Those Sages the Druides most proper to this Isle had yearly Conventions of their noblest and best people in a middle consecrated Plot of this Kingdome punishing with proscription from their Sacrifices whoso