King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363. or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12 2 Nalson 381. 1641. An Order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27 28. and Sir Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
in Parliament are the King or Queen Sir Tho. Smith's Common-wealth 74. the Lords Temporal and Spiritual the Commons represented by the Knights and Burgesses of every Shire and Borough-Town These all or the greater Part of them and that with the Consent of the Prince for the time being must agree to the making of Laws The King of England Fortescue c. 36. p. 84. b. neither by himself or his Ministers imposeth Tallages or any other Burdens on his Subjects or alter their Laws or make new Laws without Assent of the whole Kingdom in Parliament No Parliament no Penny Turner's Case of Bankers 95. hath been always taken notice of as a principal Foundation of this Government even by our Neighbour Princes and States who have in all Ages made their Approaches upon this Realm and evermore valued us in Proportion to the Correspondency they observed between our Kings and their Parliaments For seeing the Power of every Prince is computed from his Treasure and Martial Men and those again by the Love of his People they well enough knew that as long as a good Understanding was maintain'd there our Princes could never want the Sinews either of the Purse or of valiant mens Arms. L'Assemblie de Troys Estates Finch's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. 2. c. 1. so 21. b. Cestascavoir Roy Nobility Commons qui font le Corps del Realm est appel un Parliament lour Decree un Act de Parliament Car sans touts troys come si soit fait per Roy Seigneurs mes rien parle del Commons nest Ascun Act de Parliament i.e. The Assembly of the three Estates to wit the King the Nobility and the Commons which make the Body of the Realm is called a Parliament and their Decree an Act of Parliament for without all three as if it be done by the King and Lords but speaks nothing of the Commons there is not any Act of Parliament The word Parliament is used in a double sense 1. English Liberties p. 78. Strictly as it includes the Legislative Power of England as when we say an Act of Parliament and in this Acceptation it necessarily includes the King the Lords and the Commons each of which have a Negative Voice in making Laws and without their Joint Consent no new Laws can pass that be obligatory to the Subject 2. Vulgarly the Word is used for the two Houses the Lords and Commons as when we say The King will call a Parliament his Majesty has dissolved his Parliament c. This Court consists of the King's Majesty 4 Inst 1. sitting there as in his Royal Politic Capacity and of the three Estates of the Realm viz. the Lords Spiritual Arch-Bishops and Bishops who sit there by Succession in respect of their Counties or Baronies parcel of their Bishopricks The Lords Temporal Dukes Marquesses Earls Viscounts and Barons who sit there by reason of their Dignities which they hold by Discent or Creation every one of which both Spiritual and Temporal ought to have a Writ of Summons ex debito Justitiae And the Commons of the Realm whereof there be Knights of Shires or Counties Citizens of Cities and Burgesses of Boroughs all which are respectively elected by the Shires or Counties Cities and Boroughs by force of the King 's Writ ex Debito Justitiae and none of them ought to be omitted and these represent all the Commons of the whole Realm and are trusted for them The King Id. 2. and these three Estates are the great Corporation or Body Politic of the Kingdom and do sit in two Houses the King and Lords in one House called The Lords House the Knights Citizens and Burgesses in another House called The House of Commons That which is done by this Consent Arc. Parl. 2. is called firm stable and sanctum and is taken for Law All the Judges of the Realm Towns Collect 5 6. Vid. Crompton 1. b. Barons of the Exchequer of the Coif the King 's Learned Councel and the Civilians Masters of the Chancery are called to give their Assistance and Attendance in the Upper House of Parliament but they have no Voices in Parliament 4 Inst 4. But are made sometimes joynt Committees with the Lords Every English-man is intended to be there present either in Person Arc. Parl. 3. Smyth's Common-wealth 74. or Procuration and Attorny of what Pre-eminence State Dignity or Quality soever he be from the Prince be it King or Queen to the lowest Person in England And the Consent of the Parliament is taken to be every man's Consent No man ought to sit in the High Court of Parliament 4 Inst 45. but he that hath Right to sit there for it is not only a personal Offence in him that sitteth there without Authority but a public Offence to the Court of Parliament and consequently to the whole Realm It is to be observed 4 Inst 2. That when there is best Appearance there is the best Success in Parliament At a Parliament 7 Hen. 5. of the Lords Spiritual and Temporal there appeared but Thirty and there was but one Act pass't of no great weight In 50 Ed. 3. all the Lords appeared in Person and not one by Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs the Parliament cannot begin Id. 6. but by the Royal Presence of the King either in Person or Representation The King's Person may be represented by Commission under the Great Seal to certain Lords in Parliament Id. 7. authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Id. 28. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention It is an Observation proved by a great Number of Precedents Id. 32. that never any good Bill was preferred or good Motion made in Parliament whereof any Memorial was made in the Journal-Book or otherwise Tho' sometimes it succeeded not at the first yet it hath never dy'd but at one Time or other hath taken effect Matters of Parliament are not to be ruled by the Common-Law Id. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vid. 1 Inst §. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges to judge of any Law Custom Id. 50. or Priviledge of Parliament It is the just and constant Course of Parliament to bring the Party accused to his Answer yea Seld. Judic 95. tho' he fly Justice yet to send out Proclamation into the Countries that he appear at a Day or else such and such Judgments shall be given against him What is done by either House according to the Law and Usage of Parliament Sir R. Atkyns Argument c. 14. is properly and in the Judgment of the
Returned And notwithstanding their Resolutions scilicet the Resolution of the Judges the Commons House hold clearly that Sir Francis Goodwyn was well Received into Parliament and the King commanded them to Confer together and Resolve if they could of Themselves and if they could not Resolve to Confer with the Judges and then to Resolve and when they were Resolved then to deliver their Resolution to his Councel not as Parliament men but as his Privy Council by whose hands he would receive the Resolution and for that purpose he left them behind him he himself being to ride to Royston a hunting And to pursue the Commandment of the King the Commons House clearly Resolved That what they had done was well and duly done and they were of Opinion clearly against the Judges as to the Matter of the Outlawry and that Ratione of the Presidents And also that the Parliament only had to do with the Sheriff's Returns of Members of Parliament and that the Returns ought not to be made till the first day of the Parliament and therefore They would not confer with the Judges But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satisfaction of the King which Committee by the Assent of All the House of Commons sent to the Lords this Resolution following videlicet As to what the King taxed the House for That they medled with the Sheriff's Return of Members of Parliament Note This Resolution was written in Parchment and so delivered to the Council of the King not as Parliament men but Representing the King's Person and a Copy thereof was kept in the House being but one half of the Body the Lords being one and the Principal Part of the Parliaments Body As to that They Answered That all Writs for the Election of Members of Parliament were returned into the Parliament House before 7 Hen. 4. at which time it was Enacted That all such Returns ought to be made in Chancery and that appeared by the Records from the Time of Edward the First until the said Year of the Seventh of Henry the Fourth And therefore the Parliament must of Necessity have only medled with the Returns till the making of the said Statute of the Seventh of Henry the Fourth at which time the place of the Return was alter'd and Enacted to be in Chancery but yet that did not take away the Jurisdiction of the Parliament to meddle with the Returns of the Members of Parliament but that remained as it was before And this was manifest as well by Reason as by Vse For that Court is to meddle with Returns where the Appearance and Service of Members is to be made and used But in the Parliament only the Appearance and Service are to be made and used and therefore in the Parliament only are the Returns to be examined and censured Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth the Clerk of the Crown attends the Parliament every day till the end of it with all the Writs and Returns and at the end of the Parliament he brings them into the Petty Bag. The Presidents also do warrant this intermedling with Returns for the Parliament as in the Twenty ninth of the Queen a Writ issued forth to the Sheriff of _____ who made a Return before the day into Chancery and the Chancellour upon that Return containing such matter as this Writ now contains sent a second Writ to the said Sheriff who thereupon made a new Election and that second Writ was also returned and both the Writs and Returns brought into Parliament and there Censured by the Parliament That the first should stand and that the second Election was void and that the Chancellour hath no Power to award a second Writ nor to meddle with the Return of it and divers other Presidents were shewn by the Commons to the same Effect videlicet In the Nine and twentieth of Queen Elizabeth One. And in the Three and fortieth of Queen Elizabeth another And in the Thrity fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parlament examined it and upon Examination thereof they found the Return true and gave a Warrant for another Writ As to the Matter that they were but One half of the Body to that they said That though in the making of Laws they were but an Half Body yet as to Censuring of Priviledges Customs Orders and Returns of their House They were an Entire Body as the Vpper House was for their Priviledges Customs and Orders which Continual and Common Vsage hath Approved of As to their Charge of having used Precipitancy and Rashness they Answered That they used it in such a Manner as in all Other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversie and then they caused the Clerk of the Crown to bring the second day the Writs and Returns and They being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true Proper Course of the Place As to the House's not having used the King well the thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellour had directed the second Writ as formerly had been done As to the Matter of the Outlawry They said That they understand by his Royal Person more strength and light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no Outlawed Person for the time to come should be of the Parliament nor any Person in Execution should have the Priviledge of Parliament But they said further That Sir Francis Goodwyn was not Outlawed at the Day of his Election for he was not Quinto Exactus the five Prolamations never had been made which Proclamation they in London always spare except the Party or any for him require it and that Exigent was never Returned nor any Writ of Certiorari directed to the Coroners to certifie it but after his Election which was a thing unusual the Money being paid the Sheriffs being long since dead to Disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And They farther shewed to the King That if the Chancellour only could examine Returns then upon every Surmise whether it were True or False the Chancellour might send a Second Writ and cause a New Election to be made And thus the Free Election of the County should be Abrogated which would be too Dangerous to the Commonwealth For by such means the King and his Council might make Any Man whom they would to be of the Parliament House against the great Charter and the Liberties of England FINIS BOOKS Printed for and sold by Timothy Goodwin at the Maiden-head against St. Dunstan 's Church in Fleetstreet 1. AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by the late Lord Ch. Justice Herbert Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales Case 2. The Power Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons asserted occasioned by an Information in the Kings Bench by the Attorney-General against the then Speaker of the House of Commons As also A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late High Commission in Ecclesiastical Causes in King James II. 3. A Defence of the late Lord Russel's Innocency Together with an Argument in the great Case concerning Elections of Members to Parliament between Sir Sam. Bernardiston Bar. Plaintiff and Sir Wil. Soames Sheriff of Suffolk Defendant in the Court of Kings Bench in an Action upon the Case and afterwards by Error sued in the Exchequer Chamber 4. The Lord Russel's Innocency further defended by way of Reply to an Answer Intituled The Magistracy and Government of England Vindicated These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath and Lord Chief Baron of their Majesties Court of Exchequer 5. A New Declaration of the Confederate Princes and States against Lewis XIV King of France and Navar Deliver'd in a late Audience at Versailles July 5. 1689. 6. Politica Sacra Civilis or a Model of Civil and Ecclesiastical Government wherein besides the Positive Doctrine concerning the State and Church in General are debated the Principal Controversies of the Times concerning the Constitution of the State and Church of England By George Lawson Rector of More in Salop. 7. The Parsons Councellor with the Law of Tythes and Tything In two Books The fourth Edition with the Addition of a Table Written by Sir Simon Degge 8. The Gentleman's Jockey and Approved Farrier instructing in the Natures Causes and Cures of all Diseases incident to Horses The Eighth Edition Enlarged 9. Popery or the Principles and Positions approved by the Church of Rome dangerous to all And to Protestant Kings and Supreme Powers more especially pernicious By Thomas Lord Bishop of Lincoln 10. A Modest Vindication of the Protestants of Ireland in Answer to the Character of the Protestants of Ireland 11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pamphlet written by Sir Richard Buckley Entituled Proposals for sending back the Nobility and Gentry of Ireland 12. Animadversions on Sir R.B. Proposals for sending back the Nobility and Gentry of Ireland 13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated and the lawfulness of the present Government asserted
Law the Act of the whole Parliament and what concerns the one must of necessity concern the whole not meerly by Consequence but by an immediate Concernment as being one and entire The three Estates of Parliament are one entire Body Id. 34 41 51 55. and Corporation all their Powers and Priviledges in the Right of them and in the Title to them are entire per my per tout and belonging to the whole Body of the Parliament tho' in the Exercise of those Powers and sometime in the Claim of them they are distinguish'd and in the Practise of their Powers they are in many Things distributed into Parts All the Estates in Parliament are all call'd by one common Name Ibid. as Commune Concilium Regni Magna Curia they are one Body Politic It is said by Fineux Chief Justice That the Parliament at the Common-Law consists of the King Lords and Commons and they are but one Body Corporate The Liberties and Franchises of the Parliament Id. 55. in the Right of them are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the ancient ends of calling Parliaments Knyghton de Eventibus Angliae l. 5. f. 2681. Col. 1 2. Petyt's Rights c. in Pref. p. 43 44. in saying Quod ex Antiquo Statuto Consuetudine laudabili approbata c. That by an ancient Statute and Custome laudable and approved which no man could deny the King was once in the year to convene his Lords and Commons to his Court of Parliament as to the highest Court in the whole Realm In qua omnis Aequitas relucere deberet absque qualibet Scrupulositate vel nota tanquam Sol in Ascensu Meridiei ubi Pauperes Divites pro Refrigerio Tranquilitatis Pacis Repulsione Injuriarum Refugium Infallibile quaerere possent ac etiam Errata Regni reformare de Statu Gubernatione Regis Regni cum Sapientiori Concilio tractare ut Inimici Regis Regni Intrinseci Hostes Extrinseci destruantur repellantur qualiter quoque Onera incumbentia Regi Regno levius ad Ediam Communitatis Supportari potuerunt i. e. In which Court all Equity ought to shine forth without the least Cloud or Shadow like the Sun in its Meridian Glory where Poor and Rich refreshed with Peace and Ease of their Oppressions may always find infallible and sure Refuge and Succour the Grievances of the Kingdom redressed and the state of the King and Government of the Realm debated with wiser Councels the Domestick and Foreign Enemies of the King and Kingdom destroy'd and repelled and to consider how the Charges and Burthens of both may be sustained with more Ease to the People The House of Lords cannot exercise any Power Sir R. Atkin's Argument f. 51. as an House of Parliament or as a Court for Errors without the House of Commons be in Being at the same Time Both Houses must be prorogued together and dissolved together By the Law Parliaments ought to be very frequent Id. 59. 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. of which no man ought to imagine a Thing dishonourable An Offence committed in Parliament is a very high Offence Sir R. Atkyns Arg. 60. 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 A Parliament may err 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 preceding 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 whose Representative they are If any Offence whatever be committed in the Parliament by any particular Members Ibid. it is an high Infringment of the Right and Priviledge 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 Id 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't 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 9. Vid. Cromp. Jur. 10. as in the Time of Parliament wherein the King as Head and they as Members are conjoyn'd and knit together into one Body Politic so as whatsoever Injury during that Time is offer'd to the meanest Members 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 the highest Statutes in England are made
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 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