not only by the Princes Pleasure Fortescue 40. a. 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 five hundred and odd Men that ought to be freely Elected by the People CHAP. II. Power of Parliament 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 Commonwealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Commonwealth 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 and after the Prince himself in presence of both the Parties doth consent unto and alloweth that is Ibid. p. 73. 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 That which is done by this Consent is called firm stable and sanctum and is taken for Law The Parliament abrogateth old Laws 2. Maketh new Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 3. Giveth order for things past and for things hereafter to be followed 4. Changeth Right and Possessions of private Men. 5. Legittimateth Bastards 6. Establisheth Forms of Religion 7. Altereth Weights and Measures 8. Giveth Form of Succession to the Crown 9. Defineth of doubtful Rights whereof is no Law already made 10. Appointeth Subsidies Tallies Taxes and Impositions 11. Giveth most free Pardons and Absolutions 12. Restoreth in Blood and Name 13. As the highest Court condemneth or absolveth them who are put upon their Trial. And to be short 14. 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 English-man 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 for the Power of Parliaments 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 it self which are as followeth 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 only 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 Vse 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 ancient 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 the King and the Lords Spiritual and Temporal and 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 this Realm and with every one of them as the Quality of the persons and Matter shall require And also the said Laws and every of them to abrogate adnul amplifie or diminish as it shall be seen to the King and the Nobles and Commons of this Realm present in Parliament meet and convenient for the Wealth of this Realm The Power and Jurisdiction of the Parliament for making of Laws in proceeding by Bill 4 Inst 36. is so transcendent and absolute as it cannot be confined either for Causes or Persons within any Bounds Si Antiquitatem spectes est vetutissima si Dignitatem est honoratissima si Jurisdictionem est capacissima The whole Parliament which should best know its own Power affirms Speed's Hist f. 914. Rot. Parl. 1 R. 3. In Cotton's Abridgment f. 713 714. That the Court of Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that the Manifestation and Declaration of any Truth or Right made by the Three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most Faith and certain quieting of mens Minds and removeth the Occasion of Doubts Parliamentum omnia potest says the 4 Leon. 174 176. The Parliament is of an absolute and unlimited Power in things Temporal within this Nation Sir Rob. Atkyns's Argument c. 50. The Parliament hath the highest and most sacred Authority of any Court Ibid. it hath an absolute Power it is the highest Court in the Realm as is acknowledged by our most learned and gravest Writers and Historians A man gives Land to one Crompton 20. b. and to his Heirs Males in that Case his Heirs Females also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petyt's Preface to Ancient Rights c. p. 41. for the Redress of Grievances and easing the Oppressions of the People And the Mirror of Justices says c. 1. p. 9. That Parliaments were instituted to hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those persons against whom the Subjects otherwise could not have common Justice The greater the Persons are Sir Rob. Atkyns Argument p. 45. if they are in the Rank of Subjects they must be subject to the King's Laws and they are the more proper for the Undertaking and Encounter of this High Court It will not be impar congressus King John had resign'd up the Crown of England to the Pope Id. 37. by the Hand of Pandulphus his Legat and
Lex Parliamentaria OR A TREATISE OF THE LAW and CUSTOM OF THE PARLIAMENTS OF England By G. P. Esq With an APPENDIX of a Case in Parliament between Sir Francis Goodwyn and Sir John Fortescue for the Knights Place for the county of Bucks 1 Jac. 1. From an Original French Manuscript Translated into English 〈…〉 〈…〉 TO THE Most Supreme Court OF THE KINGDOM THE PARLIAMENT OF England The AUTHOR doth most humbly Dedicate this his small Treatise of the LAW and CUSTOM of PARLIAMENT THE PREFACE TO THE READER I Am very sensible that assoon as this Treatise is submitted to publick View 't will likewise meet with publick Censure and not a Few will be apt to start this Objection against it that it is only like an Old Piece in a New Dress These Things men will say have been done before the same Matter and much of the same Form are to be found in other Writers and this is but to obtrude upon the World 〈◊〉 vain Repetition of other mens Observations I must confess in part it is so and it must needs be so fo◠it is not to be expected that I shou'd presume to dictate Rules and Directions out of my own Fancy by which to govern or Influence Parliaments I must be beholding to Precedents and Records and tho' you shall find many of the same Notes scattered in my Lord Coke in Elsyng Hakewel Scobel and others yet I may adventure to say you shall no where meet them couched in so compendious and so useful a Method I have not only cull'd out of the before-mention'd and several other Authors what is proper and pertinent to this Design but I have gleaned from the Statutes Law-Books Reports and Histories whatsoever I met with in my inquisitive Re-searches beyond All that has been before placed in any Collection and which may be applicable to this Vndertaking All Members ought to be throughly skill'd in Parliamentary Affairs to know their own Laws and Customs their Powers and Priviledges that they may not at any time suffer Invasions to be made upon them by what plausible Pretences soever but as it is impossible for men of the most tenacious Faculties to keep all things constantly in their minds therefore this is to ease and refresh their Memories in case of any Forgetfulness and they may with a very little Trouble have always this in their Pockets which perhaps some may not be able without a great deal of Trouble to carry always in their Heads When he that is conversant in Study and Books cannot carry a Library about him he may easily recollect what is expedient for him from the Supplement of this Epitome Such as shall hereafter be promoted to that honourable Station of being Senators of the Kingdom will find it much more easie to receive short Information from this little Manual than to be obliged on every Occasion to consult the publick Records and turn over wearisome Volumes And they who do not expect Admission into a Parliament House will yet receive this as no unprofitable Diversion to observe and know the admirable method of Parliamentary Proceedings the Exactness and Decency of their Orders the Wisdom and Prudence of their Customs the Extent of their Powers and the Largeness of their Priviledges Wherefore without any Flattering or Arrogance to my self I shall make bold to tell you I am verily perswaded that what I have taken pains to collect from several Books and to digest into this small Compass for my own Convenience and Information will conduce to the general Satisfaction of all that read it which was one main Reason that induced me to publish it THE HEADS Of the several CHAPTERS Contained in this TREATISE CHAP. 1. THE Parliament Page 1 CHAP. 2. Power of Parliament Page 18 CHAP. 3. The House of Lords Page 41 CHAP. 4. Power of the House of Lords Page 53 CHAP. 5. House of Commons Page 61 CHAP. 6. Power of the House of Commons Page 66 CHAP. 7. Power of Parliament over their own Members Page 87 CHAP. 8. Elections of Members Page 104 CHAP. 9. Who may be Electors Page 113 CHAP. 10. Who may be Elected Page 115 CHAP. 11. Returns of Sheriffs and Amendments of Returns Page 125 CHAP. 12. Election of Speaker Page 130 CHAP. 13. Business of the Speaker Page 141 CHAP. 14. Orders to be observed in the House Page 148 CHAP. 15. Orders of the House Page 156 CHAP. 16. Passing of Bills Page 174. CHAP. 17. Concerning Committees Page 202 CHAP. 18. The Order and Power of Grand Committees Page 215 CHAP. 19. Concerning standing Committees Page 222 CHAP. 20. A Session of Parliament Page 229 CHAP. 21. The proper Laws and Customs of Parliament Page 235 CHAP. 22. Priviledge of Parliament Page 257 The Appendix Page 299 The NAMES of the AUTHORS quoted in this TREATISE ATkyns Sir Robert 's Argument of the Power and Jurisdiction of Parliament Arcana Parliamentaria Brook Brownlow Coke on Littleton Coke 's fourth Institute Coke 's Twelfth Report Crompton 's Jurisdiction c. Dyer Elsyng d'Ewes Sir Simond 's Journal Fortescue Hakewel Herbert 's Henry the Eighth Hollis Lord. Holling shead Hunt Hutton Kelwey Knyghton de Eventibus Angliae Leonard 's Reports Modus tenendi Parliamentum Moor 's Reports Nalson 's Collections Petyt 's Ancient Rights c. Petyt 's Miscellanea Parliamentaria Plowden Rushworth 's Collections Scobel Selden 's Judicature Smyth Sir Thomas Common-wealth of England Speed 's History Townsend 's Collections Turner 's Bankers Case Vaughan 's Reports CHAP. I. The Parliament IT is called Parliamentum Co sup Littleton 110. because every Member of that Court shou'd parler le ment speak his mind Mr. Lambard in his Archion maintains Sir R. Atkyns Argument c. p. 18. That the Parliament was used in the Saxons time and then consisted of the King Lords and Commons as in the Time of King Ina Ann. 712. Mr. Prinn says Mr. Prynn's Truth triumphing over Falshood Antiquity over Novelty fol. 69. Pttyt's Ancient Right c. p. 68. by all the ancient Precedents before the Conquest it is most apparent That all our pristine Synods and Councils were nought else but Parliaments That our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges They had many Expressions and Phrases as Id. 98 99. Omnes Regni Nobiles Totius Regni Magnates Proceres Fideles Regni Vniversitas Regni Clerus Populus Communitas Regni Discretio totius Regni Generale Concilium Regni and many more varying in several Ages till at last they fixed on the word Parliamentum Vide many Records and Precedents touching this Matter in the Appendix to Petyt's Miscellanea Parliamentaria This Court is the highest Court of England Crompton's Juris p. 1. in which the Prince himself sits in Person and comes there at the Beginning of the Parliament and at the End and at any other Time when he pleaseth during the Parliament The Judges
sordidly submitted to take the Crown at his Hand again at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded his Rent and all the Arrears The Prelates Dukes Counts Barons and Commons resolved That neither the King nor any other could put the Realm nor the People thereof into Subjection sans l'assent de eux without their Assent This intimates Ibid. that with their joynt Consent the Crown may be disposed of And it was the highest Resolution in Law in one of the highest Points in Law concerning the King's claim of an Absolute Power and in a Time when the Pope was in his height It is the proper Work of this Supreme Court to deal with such Delinquents Ibid. as are too high for the Court of King's Bench or other ordinary Courts Daughters 4 Inst 36. and Heirs apparent of a Man or Woman may by Act of Parliament inherit during the Life of the Ancestor It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason Ibid. after his Death It may Naturalize a meer Alien Ibid. and make him a Subject born It may bastard a Child Ibid. that by Law is Legitimate viz. begotten by an Adulterer the Husband being within the four Seas It may Legitimate one that is Illegitimate Ibid. and born before Marriage absolutely it may Legitimate secundùm quid and not simplicitèr 21 Rich. 2. The Lords Appellants accused the Duke of Glocester of Treason Selden's Judicature 91. and tho' they knew he was dead they pray'd the King that he might be brought to his Answer The King sent his Writ c. they desired Judgment and had it So Robert Possington was impeached at the Parliament at Westminster Id. 95. and found Guilty long Time after he was dead and so forfeited his Estate John of Gaunt Duke of Lancaster had by Catherine Swinford 4 Inst 36. before Marriage four illegitimate Children Henry John Thomas and Joan. At the Parliament holden 20 Rich. 2. the King by Act of Parliament in Form of a Charter doth Legitimate these three Sons and Joan the Daughter Thomas Cromwel Earl of Essex was attainted by Parliament Ibid. and forth-coming to be heard and yet never call'd to answer in any of the Houses of Parliament and resolved by the Judges That if one be Attainted by Parliament it can never come in question after whether he were call'd or not call'd to answer for the Act of Attainder being pass't by Parliament did bind Where by Order of Law a man cannot be Attainted of High-Treason Id. 39. unless the Offence be in Law High-Treason he ought not to be Attainted by general Words of High-Treason by Authority of Parliament as sometimes hath been used but the High-Treason ought to be specially exprest seeing that the Court of Parliament is the highest and most honourable Court of Justice and ought to give Example to inferior Courts Acts against the Power of the Parliament subsequent bind not Id. 42. It is against the Power and Jurisdiction of the Parliament the Liberty of the Subject and unreasonable The Stat. Id. 42. 11 Rich. 2. c. 5. That no Person should attempt to revoke any Ordinance then made repealed for that such Restraint is unreasonable An Act 11 Rich. 2. c. 3. Ibid. That no man against whom any Judgment or Forfeiture was given shou'd sue for Pardon or Grace c. was holden to be unreasonable without Example and against the Law and Custom of Parliament and therefore void The High Court of Parliament to be committed to a few as in 21 Rich. 2. c. 16. Ibid. is holden to be against the Dignity of a Parliament and that no such Commission ought to be granted Tho' it be apparent Id. 43. what transcendent Power and Authority this Parliament hath and tho' divers Parliaments have attempted to bar restrain suspend qualifie or make void subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualifie explain or make void the former in the Whole or in any Part thereof notwithstanding any Words of Restraint Prohibition or Penalty in the former For it is a Maxim in the Law of Parliament Quòd Leges posteriores priores contrarias abrogant An Act of Parliament doth include every man's Consent Hobart 256. as well to come as present The Soveraign Power of this High Court of Parliament is such Hakewel 86. That altho' the King's Majesty hath many great Priviledges and Prerogatives yet many Things are not effectual in Law to pass under the great Seal by the King's Charter without Parliament The King by his Letters Patents may make a Denizen Id. 87. but cannot Naturalize him to all purposes as an Act of Parliament may do If a man be Attainted of Felony Id 89. or Treason by Verdict Outlawry Confession c. his Blood is corrupted which is a perpetual and absolute Disability for him or his Posterity to claim any Hereditament in Fee-simple either as Heir to him or any Ancestor paramount him and he shall not be restored to his Blood without Parliament And the King may give to any attainted Person his Life by this Charter of Parliament Id 90. The King cannot alter the Common Law or the general Customs of the Realm as Gavelkind Borough-English or the like without Parliament If a King have a Kingdom by Discent Ibid seeing by the Law of that Kingdom he doth inherit that Kingdom he cannot change those Laws of himself without Consent of Parliament By the Laws of this Kingdom Ibid. the King cannot by his Proclamation alter the Law but the King may make Proclamation That he shall incur the Indignation of his Majesty that withstands it But the Penalty of not obeying his Proclamation may not be upon Forfeiture of his Goods his Lands or his Life without Parliament Brook 123.98 Vide 20 H. 6.9 Crompton 22. b. Le Parliament d Engleterre ne lia Ireland quoad Terras suas quar ils ont Parliament la mes il poient eux lier quant al Choses transitory come eskipper de Lane ou Merchandize al intent de ceo carrier al auter Lieu ultra Mare The Parliament of England cannot bind Ireland as to their Lands for they have a Parliament there but they may bind them as to Things transitory as the shipping of Wool or Merchandize to the intent to carry it to another Place beyond the Sea Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England 4 Inst 350. c. And by special Words the Parliament of England may bind the Subjects of Ireland The Lords in their House have Power of Judicature Id 23. and the Commons in their House have Power