as may appear for an Instance in their Declaration or Protestation to Edward the Third in Parliament which concludes thus For they will not be obliged by any Statute or Ordinance made without their Assent In a MS. M. S. Penes W. Bohun p. 5 6. Treatise written by Mr. Rymer entitled an Inquiry into the antient Method of passing Bills in Parliament I find it to have been the usual Practice Temp. Ed. 3ij c. See Annis Edw. 3. 14 15 16 20 21 22. 36. 33 c. For the Commons to have first their Petitions and Bills answered i. e. their Grievances Redress'd and then to Grant their Aids and Supplies But note These Matters often proceeded pari Passu And sometimes Aids were granted by the Commons on express Condition That the King Grant the Petitions Exhibited to him c. But in 47 E. 3. The Subsidy or Aid Ibid. p. 7. is commanded to be first Treated on or Debated which says my Author I remember not to have been in any other Parliament whatsoever save that of 7 R. 2. And Note 11 R. 2. The Commons Demand it as of Right not to Grant Subsidies till the End of the Parliament To give Subsidies upon Subsidies is not usual In the 18 H. 3. Rush vol. 1. p. 190. There was one Punished for pressing for more Subsidies when Subsidies had been Granted before in that Parliament And note See Cottons Records p. 17. 198. If any new Project was proposed in Parliament for raising Subsidies or Supplies the Commons usually reply'd thereto That they were not Instructed by their Principals in that Matter or that they durst not consent to such Tax c. without Conference with their Countries A Member of Parliament may charge any great Officer of State with any particular Offence Rush Col. 690. If any Lord of Parliament Spiritual or Temporal 4 Inst 24. have committed any Oppression Bribery Extortion or the like the House of Commons being the general Inquisitors of the Realm coming out of all Parts thereof may examine the same and if they find by the Vote of the House the Charge to be true then they transmit the same to the Lords with the Witnesses and the Proofs 1 Jac. 1. 1603. Petyt's Miscel Parl. 64. The Bishop of Bristol publishing a Book tending to make Division and Strife Wrong and Dishonour both to the lower House and the Lords themselves was complain'd of by the Commons to the Lords and he made his Recantation 1. That he had erred 2. That he was sorry for it 3. If it were to do again he would not do it 4. But protested it was done of Ignorance and not of Malice 7 Jac. 1. 1609. Vide Rvsh Hist Col. 4 Car. Dr. Cowel writ a Book perniciously asserting certain Heads to the Destruction of Parliaments and the Fundamental Laws and Government of the Kingdom and was complained of by the Commons to the Lords who resolved to Censure his Errors and Boldness Ibid. And afterwards the Book was burnt by Proclamation Vide Dr. Manwaring's Case Rush Col. Nalson Vide Petyt's Miscel Part 74. Vide Dr. Montague's Case in Rushworth Nalson Petyt's Miscell Part 82. Note The Case of Dr. Burnet Bishop of Salisbury who for writing and publishing a Book Entitled King William and Queen Mary Conquerors was Censured in Parliament and as I think on the Commons Address Removed from being Preceptor to the Duke of Gloucester c. Note also Bishop Fleetwood's Preface censured and burnt by Order of the House of Commons And see Nalson's Col. p. 9. and 43. ten Bishops at once sent to the Tower by the Lords c. 4 Junij 19 Jac. Petyt's Miscel Parl. 120. The Commons House of Parliament this Day adjudged Randolph Davenport Esq for his Offence in Mis-informing the House in a Cause wherein he was produced as a Witness to be committed Prisoner to the Tower for the space of one whole Month and then to be Discharged paying his Fees 19 Jac. 1. Id. 160. Ordered by the Commons House of Parliament That the Serjeant of Arms attending this House shall attach the Body of John Churchill one of the Deputy-Registers of the Chancery and him shall take into his Custody and bring him to this House on Monday Morning next at Eight of the Clock and the said Serjeant is in the mean time to keep him so as none be suffer'd to speak with him but in the hearing of the Serjeant Vide ad hoc Rush Collect. passim Vide Nalson's 2 Volumes Vide Selden's Judicature c. Vide Sir Robert Atkyns's Argument c. Vide Petyt's Preface to Mis Parliamentaria Thomas Long gave the Mayor of Westbury four Pounds to be elected Burgess 4 Inst 23. Vide Sir d'Ewes Jour 182. who thereupon was elected This Matter was examin'd and adjudged in the House of Commons secundum Legem Consuetudinem Parliamenti and the Mayor fined and imprisoned and Mr. Long removed i. e. expelled the House for this corrupt Dealing was to poison the very Fountain it self See several Orders and Resolutions of the House of Commons against Bribery and Corruption in electing Members c. in Bohun's Collection of Debates c. pa. 28. 55. 275. 281. 340. c. particularly the Journal of the Commons for 1701. viz. Mar. 6.7.13.17.18.20.30 April 29. c. Arthur Hall Ibid. Vid. Sir Simon d'Ewes Jour 212. Post 89 c. a Member of the House of Commons for publishing and discovering the Conferences of the House and writing a Book to the Dishonour of the House was upon due Examination secundum Legem Consuetudinem Parliamenti adjudged by the House of Commons to be committed to the Tower for six Months Post 87. fined at five hundred Marks and expelled the House 23 Apr. 1. Mariae Ibid. Call'd Marington by Scobel 113. Muncton struck William Johnson a Burgess of B. return'd into the Chancery of Record for which upon due Examination in the House of Commons it was resolved That secundum Legem Consuetudinem Parliamenti every Man must take Notice of all the Members of the House returned of Record at his Peril And the House adjudged Muncton to the Tower Injuries offer'd to the Members Scobel 113. and their Servants during the Session have been usually punished by the House upon Complaint 29 Febr. 1575 one Williams Ibid. Vid. Sir Simon d'Ewes Jour 251. Col. 2. for assaulting a Burgess of this House was upon Complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 28 Nov. Ibid. 1601 complaint being made by Mr. Fleetwood a Member of the House that one Holland a Scrivener and one Brooks his Servant had evil entreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five Days to the Serjeant 12 Febr. 18. Jac. 1 Mr. Lovel Ib. 114. a Member of the House informed That one Darryel threatned his Person that for
and heard the better of all the Clerks of the House sit before him in a lower Seat who read Bills Petitions c. The Speaker's Office is when a Bill is read Modus tenend Parl. 37. Smith 's Common-wealth 86. Hakewel 138 139. Sir Simon d'Ewes Jour 43.44 as briefly as he may to declare the Effects thereof to the House That Day that the Speaker being approved by the King cometh down into the Commons House to take his Place the Custom is to read for that time only one Bill lest unpast the last Sessions and no more This is done to give him Seisin were as it of his Place 1 Jac. 1. Scobel 19. Sir Edward Philips was chosen Speaker and the same Day before he was presented to the King he signed a Warrant as Speaker Note by Command of the House for Election of another Person in the Place of Sir Francis Bacon being chosen in two Places A general Order hath usually been made in the Beginning of the Session Id. 20. to authorize the Speaker to give Warrants for new Writs in Case of Death of any Member or of double Returns where the Party makes his Choice openly in the House during that Session Where such general Order is not made Ibid. Writs have issued by Warrant of the Speaker by Vertue of special Order upon Motion in the House Oftentimes on the first Day of the Meeting of the House Scobel 18. as soon as the Meeting of the House as soon as the Speaker hath been approv'd and sometime before such Persons as have been doubly return'd have made their Choice 43 Eliz. Mr. Johnson said Towns 191.192 The Speaker may ex Officio send a Warrant to the Clerk of the Crown who is to certifie the Lord Keeper and so make a new Warrant The Speaker said Ibid. Sir Simon d'Ewes Jour 627. Col. 2. That I may inform you of the Order of the House the Warrant must go from the Speaker to the Clerk of the Crown who is to inform the Lord Keeper and then to make a new Writ This Proposition I hold Ibid. Vide Sir S. d'Ewes Jour 627. Col. 2. That our Speaker is to be commanded by none neither to attend any but the Queen per Sir Edward Hobby The Warrant is to be directed to the Clerk of the Crown in Chancery Scobel 20. Vid. Tow. Col. 216.217 Vide Sir S. d'Ewes Jour passim Scobel 65. Petyr 's Misâ—ell Parl. 140. by Order of Parliament 13 Novemb. 1601. May 1604. Resolved That no Speaker from henceforth shall deliver a Bill of which the House is possessed to any whosoever without Leave and Allowance of the House but a Copy only It is no Possession of a Bill except the same be delivered to the Clerk to be read or that the Speaker read the Title of it in the Chair 5 Car. 11. 1628. Râ—b Col. 66â— The Speaker being moved to put the Question then proposed by the House he refused to do it and said That he was otherwise commanded from the King 2 Martij The Speaker was urged to put the Question who said See Sâ—â—dens Lise I have a Command from the King to adjourn till the Tenth of March and to put no Question and endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was publish'd When the Queen made an Answer to the Speaker's Speech Towns Col. 263. Vide Sir S. d'Ewes Jour 6â—â— Col. 1.2 Towns Col. 61. he with the whole House sell upon their Knees and so continued till she bid them stand up 35 Eliz. Mr. Speaker was sent for to the Court where the Queens Majesty her self gave him Commandment what to deliver to the House The Speaker was commanded upon his Allegiance not to read any Bills touching Matters of State or Reformation in Causes Ecclesiastical Id. 63. 16 Car. 1. 1640. Apr. 16. Rush Col. 1127. The Speaker received Command from the King That His Majesties Speech shou'd be entred in the Journal of the Commons House of Parliament Whereupon the House passed a declarative Vote That they did not expect that this shou'd be performed by other Speakers but upon the like special Command or by the Order of the House Eodem Die Resolved Id. 1137. That it was a Breach of Priviledge of the House for the Speaker not to obey the Commands of the House and that it appeared the Speaker did adjourn the House by the Command of the King without the Consent of the House which is also a Breach of the Priviledge it was therefore ordered that this should be presented to His Majesty 1 Jac. 1. 1603. Ordered Scobel 65. Petyt 's Miscol Parl. 140. That it shou'd be precisely registred as the Judgment of the House that no Speaker from henceforth shou'd deliver a Bill whereof the House stands possessed to any whomsoever without Allowance and Leave But that he had Power and might either shew it or deliver a Copy if it seems meet to him But yet it was admitted Id. 142. that a Copy may be delivered or it may be shewed to His Majesty If upon Division of the House Hakewel 145. it appear that the Members are equal the Speaker hath always the casting Voice upon all Questions 44 Eliz. upon the Question Towns 321.322 Vide Sir S. d'Ewes Jour 683. Col. 2. Whether Mr. Speaker had a Voice It was said by Sir Walter Raleigh and confirmed by the Speaker himself That the Speaker is foreclosed of his Voice by taking of that Place which it had pleased them to impose upon him and that he was to be indifferent to both Parties He was seconded by Mr. Secretary Cecil The Speaker hath no Voice in the House Arc. Parl. 18. Smyth 's Common-wealth 86. Rush Col. 3. p. v. 1. p. 35. nor will they suffer him to speak in any Bill to move or disswade it It was resolved by Vote in the last Parliament says Mr. Harbottle Grimston in his Speech Nov. 9. 1640. That the Speaker refusing to put the Question being thereunto requir'd by the House or to adjourn the House upon any Command whatsoever without the Consent and Approbation of the House it self were Breaches and Violations that highly impeached our Priviledges Ordered Id. p. 42. That Mr. Speaker be intreated to be here this Afternoon viz. 10 Nov. 1640. to sit by at the great Committee of Irish Affairs and if there be Cause to resume the Chair Nov. 20. 1640. Id. p. 53. This Day the House ordered the Speaker should sit in the Afternoon Note The Speaker is said to be not only the Mouth but the Eyes and Ears of the House And hence it was That when King Charles I. commanded the Speaker on his allegiance to discover certain Transactions c. in the House he justly reply'd That he had neither Eyes to See Ears to Hear nor Mouth to Speak but as the House shall direct him See also several Letters Messages c. of that Prince to and by the
James the First the House being desirous to have a Bill forth with passed declared That the Royal Assent to one Bill or more did not dissolve the Session without some special Declaration of his Majesty's Pleasure to that Purpose 1 2 Phil. Mar. The King and Queen came of Purpose into the Parliament House Ibid. to give their Assent to Cardinal Pool's Bill and resolved upon the Question by the whole House That the Session was not thereby concluded but they might proceed in their Business notwithstanding the Royal Assent given But for more Security it is usual to insert a Proviso to that Purpose If there be divers Sessions in one Parliament Arc. Parl. 93. 〈◊〉 Jour 7.12 â—b and the King signs not a Bill till the last there all is but one and the same Day and all shall have relation to the first Day of the first Session Post 336. and the first Day and the last are but one Parliament and one and the same Day unless special Mention be made in the Act when it shall take its Force See Touching the Commencement Prorogation and Dissolution of several Parliaments from the Beginning of Edward III. to the End of Richard III. in Cotton's Records per Totum and from the Beginning of Edward VI. in Hale's Parliaments pag. 107 to 110. and pag. 142 143 c. Upon a Prorogation of the Parliament On a Prorogation Bills to continue in Statu quo Burnet 's Reformation Vol. I. pag. 276. Journal Dom. Com. 15 May 1540. 32 Hen. 8. to the 25th a Vote passed That their Bills should remain in the State they were in and upon their next Meeting they went on accordingly On the 18th of February 1666 the Parliament was prorogued till the 10th of October 1667. the King present Memorandum That his Majesty by Proclamation 1 Siderf 338. dated 26 June 1667. Ann. 19. of his Reign summon'd his Parliament to meet on the 25th of July following by Reason of the War against the Dutch then in Being On which Day they met and adjourned at his Majesty's Appointment to the 29th of the same Month on which Day a Peace being then concluded the Parliament was by his Majesty's Appointment prorogued to the 10th of October as aforesaid A Parliament may be summon'd by Proclamation to meet before the Day to which they are prorogued Anno Dom. 1628. Rush Vol. I. pag 537. 4 Car. 10 April Mr. Secretary Cook delivered this Message from the King That his Majesty desired this House not to make any Recess these Easter-Holidays that the World may take Notice how earnest his Majesty and we are for the publick Affairs of Christendom the which by such a Recess would receive Interruption But This Message for Non-recess was not well pleasing to the House Sir Robert Phillips first resented it Post 366. and too Notice that in 12 18 Jac. upon the like Intimation the House resolved it was in their Power to adjourn itself or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of our Right herein and make a Declaration And accordingly this Matter touching his Majesty's Pleasure about the Recess was referred to a Committee and to consider the Power of the House to adjourn itself to the End that it being now yeilded unto in Obedience to his Majesty it might not turn to Prejudice in Time to come Sir Edward Coke spoke to the same Purpose and said I am as tender of the Privileges of this House as of my Life They are the Heart-Strings of the Commonwealth The King makes a Prorogation but this House adjourns itself The Commission of Adjournment we never read but say this House adjourns itself If the King write to an Abbot for a Corody for a Valet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered that this is done ex rogatu Regis Hereupon a Message was sent to the King That the House would give all Expedition to his Majesty's Service notwithstanding their Purpose of Recess To which Message his Majesty returned this Answer That the Motion proceeded from himself in regard of his Engagement in the Affairs of Christendom wished them all Alacrity in their Proceedings and that there be no Recess at all A Message from the King by the Speaker Ibid. pag. 608. same Year That his Majesty commands for the present they adjourn the House till To-morrow Morning and that all Committees cease in the mean Time And the House was accordingly adjourned On Wednesday February 25. the same Year both Houses by his Majesty's Command adjourned themselves until Monday Morning the 2d of March. Monday Ibid. pag. 660. and Appendix pag. 9. 2d of March the Commons meet and urged the Speaker to put the Question who said I have a Command from the King to adjourn till the 10th of March and put no Question endeavouring to go out of the Chair was notwithstanding held by some Members the House foreseeing a Dissolution till a Protestation was published in the House Hereupon the King sent for the Serjeant of the House but he was detained the Door being locked Then he sent the Gentleman-Usher of the Lords House with a Message and he was refused Admittance till the said Votes were read And then in much Confusion the House was adjourned till the 10th of March according as it was intimated from his Majesty In Mr. Mason of Lincoln's Inn his Argument for Sir John Elliot he said the second Charge in the Information against him was the Contempt to the Command of the King's Adjournment Jac. 18. It was questioned in Parliament whether the King can adjourn the Parliament although it be without doubt that the King can prorogue it And the Judges resolved That the King may adjourn the House by Commission and 27 Eliz. it was resolved accordingly But it is to be observed and wondered Rush Vol. I. in Appendix pag. 48. that none was then impeached for moving that Question And it is to be noted that they resolved that the Adjournment may be by Commission but did not resolve that it may be by a verbal Command signified by another and it derogates not from the King's Prerogative that he cannot so do no more than in the Case of 26 H. 8. c. 8. that he cannot grant one Acre of Land by Parol The King himself may adjourn the House in Person or under the Great Seal but not by verbal Message for none is bound to give Credit to such Message but when it is under the Great Seal it is Teste meipso And if there was no legal Command then there can be no Contempt in the Disobedience of that Command In this Case no Contempt appears by the Information for the Information is that the King had Power to adjourn Parliaments Then put the Case the Command be that they should adjourn themselves this is no Pursuance of the Power which he is supposed to have
Body as the Upper House was for their Privileges Customs and Orders which continual and common Usage 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 Controversy 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 Chancellor had directed his 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 Privilege 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 Proclamations never had been made which Proclamations 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 certify it but after his Election which was a Thing unusual the Money being paid and 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 Chancellor only could examine Returns then upon every Surmise whether it were true or false the Chancellor 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-Parliament-House against the Great Charter and the Liberties of England It is found among the Precedents of Queen Elizabeth's Reign Rush 3 vol. pag. 591. on whose Times all good Men look with Reverence that She committed one Wentworth a Member of the House of Commons to the Tower sitting the House only for proposing That they might advise the Queen in a Matter which she thought they had nothing to do to meddle in Quere If not in advising her to marry This notorious Infringement of their Liberties and Privileges See Sir Matthew Hâ—â—'s of Parliament pag. 206 216 217.218 c. in the latter End of Queen Elizabeth seems to be what the Commons complained of and mention in that famed Remonstrance or Declaration of their Privileges printed and directed to King James the First in the Beginning of his Reign viz. Anno Dom. 1604. Wherein they tell that King That they bore with some Things in the latter Times of Queen Elizabeth in regard of her Sex and her Age and not to impeach his Majesty's Succession under whom they then hoped to have them redressed and rectified Whereas on the contrary in that very first Parliament of his Majesty they found That the whole Freedom of the Parliament and Realm had been on all Occasions mainly hewed at As That the Freedom of their Persons in Election had been impeached The Freedom of their Speech prejudiced by often open Reproofs That particular Persons Members who had spoken their Consciences in Matters proposed to the House noted with Disgrace c. That a Goaler had contemned the Decrees and Orders of the House Some of the higher Clergy to write Books against them even fitting in Parliament The inferior Clergy to inveigh against them in their Pulpits c. After which they roundly assert That the Prerogative of Princes may easily See the Force of a Precedent once fixed in the Crown 2 Inst 61. Houâ—â—shead 1 Tom. pag 135. and do daily grow and increase But the Privileges of Subjects are for the most Part at an everlasting Stand They may by good Providence and Care be preserved but being once lost are not to be recovered but with much Disquiet and Disorder Vide ibid. plura To conclude this Treatise as I begun it give me leave to add There is nothing ought to be so dear to the Commons of Great Britain as a Free Parliament that is a House of Commons every Way free and independent either of the Lords or Ministry or c. Free in their Persons Free in their Estates Free in their Elections Free in their Returns Free in their assembling Free in their Speechs Debates and Determinations Free to complain of Offenders Free in their Prosecutions for Offences and therein Free from the Fear or Influence of others how great soever Free to guard against the Incroachments of arbitrary Power Free to preserve the Liberties and Properties of the Subject and yet Free to part with a Share of those Properties when necessary for the Service of the Publick Nor can he be justly esteem'd a Representative of the People of Britain who does not sincerely endeavour to defend their just Rights and Liberties against all Invasions whatsoever See further touching the Rights and Duties of Parliaments in Rapin's History Vol. II. Book XXII especially Page 583 and 595. Sed quae sunt Jura si non Libere Fruantur FINIS Books lately Printed MODERN Entries in English Being a select Collection of Pleadings in the Courts of King's-Bench Common-Pleas and Exchequer viz. Declarations Pleas in Abatement and in Bar Replications Rejoinders c. Demurrers Issues Verdicts Judgments Forms of Continuances Discontinuances and other Entries and of entering Judgments c. in all personal Actions and also all Kinds of Writs Original and Judicial Translated from the most authentick Books but cheifly from Lutwich's Saunders's Ventris's Salkeld's and the Modern Reports and from other Cases lately try'd and adjudg'd and wherein Writs of Error have been brought and Judgments affirm'd Together with Readings and Observations on the several Cases in the Reports as well relating to the Precedents herein as to all other Cases incident to each particular Title and the same abridg'd in a methodical Order To which are added References to all the other Entries in the Books with three distinct Tables one of the Precedents the second of the Cases abridg'd and the third of the Names of the Cases By a Gentlman of the Inner-Temple The Law of Uses and Trusts collected and digested in a proper Order from the Reports of adjudged Cases in the Courts of Law and Equity and other Books of Authority Together with a Treatise of Dower To which is added A compleat Table of all the Matters therein contained And The Law and Practice of Ejectments Being a compendious Treatise of the Common and Statute Law relating thereto To which is added Select Precedents of Pleas special Verdicts Judgments Executions and Proceedings in Error with two distinct Tables to the Whole The Second Edition carefully corrected and revised by the Author The Attorney's Pocket Companion Or A Guide to the Practisers of the Law In two Parts Being a Translation of Law Proceedings in the Courts of King's-Bench and Common-Pleas Containing a Collection of the common Forms beginning with the Original and ending with the Judicial Process Together with an historical as well as practical Treatise on Ejectment To which is also added The Law and Practise of Fines and Recoveies and several other Precedents with some Remarks on the Forms of the Habeas Corpora and Jurata now in Use In two Vols
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
Commons of England began in some Measure to be Restored to their antient Rights i. e. the Election of their Officers and Magistrates Civil and Ecclesiastical and their being Represented in Parliament 'Tis True W. 1. Soon after his acquisition of the Kingdom Swore to the Observation of the Laws of Edward the Confessor but added a very odd Limitation to the Oath viz. with such amendments i. e. alterations as he with advice of his Council should make therein This shewed he had little regard to those Laws and the Rather for that the Observance of them would in a great Measure deprive him of Nominating the Officers and Governors of the Kingdom a tender Sore to a Prince that aims at arbitrary Power He therefore took upon him the Nomination and Disposition of all Offices and Dignities Sold and Distributed Earldoms and Baronies at pleasure and seems to have utterly deprived the People of their Right of Election of Magistrates and Representatives except for London without which no People can be esteemed Free and having afterwards settled his Revenue by the Record of Domesday Book he had thence forward no occasion for supplies in Parliament W. Rufus succeeded him on the like Foot and on his Coronation Swore the like Oath with the like Explanation i. e. to observe the Confessors Laws with such amendments i. e. alterations therein as had been made by his Father and H. 1. on his coming to the Throne Swore to the Observance of the same Laws with such alterations as had been made therein by his Father and Brother Hitherto the Yoak of the Norman Conquest and Tyranny had layn heavy on the Necks of the Commons of England but now their Day of Redemption seem'd to draw Nigh for in a few Years after this Robert the Eldest Son of W. 1. being return'd from the Holy Land and coming into England set up his claim to the Crown and made such a Party among the Norman Nobility here that King Henry was forced to throw himself into the Arms of the English and thereupon called a Parliament at London which seems to have been composed almost if not wholy of an English House of Commons The Speech made by that Prince at the Meeting of that Parliament is Recorded by Mat. Paris and does so remarkably discover the Restoration of the Rights of the Commons and the Renovation of the antient Constitution by granting the Original of our Magna Charta and other Liberties that I cannot forbear giving the Speech and its Introduction to the Reader both in Latin and in English viz. Magnatibus igitur Regni ob hoc Londonium Edicto Regio convocatis Rex Oratio Regis Henrici ad Anglos See Mat. Paris old Edicon p. 83. and in Watts p. 42. Henricus talibus alloquiis super Mel Favum Oleumque Mellitis Mollitis blandiens Dixit Vos Angligeni Amici sideles mei Indigenae ac Naturales Nostis veraci Fama referente qualiter Fratermeus Robertus electus et per Deum Vocatus est ad Regnum Hierosolymitauum feliciter Gubernandum et quam frontose illud infeliciter Refutaverit Merito propterea a Deo Reprobandus Nostis etiam in multis alijs Superbiam et ferocitatem illius et quia Vir bellicosus Pacis Impatiens est Vosque Scienter quasi contemptibiles et quos Desides vocat Glutones conculcare desiderat Ego vero Rex humilis pacificus Vos in Pace in antiquis Vestris Libertatibus prout crebrius jurejurando promisi gestio confovere et vestris inclinando Consilijs consultius ac Mitius more Mansueti Principis Sapienter Gubernare Et super his si provideritis Scripta subarata roborare et iteratis Juramentis praedicta certissime Confirmare Omnia Videlicet quae Sanctus Rex Edvarvardus Deo inspirante provide Sancivit inviolabiliter jubebo observari ut vos mecum fideliter Stantes Fratris mei immo et mei totius Regni Angliae Hostis cruentissimi Injurias potenter animose ac voluntarie propulsetis si enim Fortitudine Anglorum roborer inanes Normanorum Iras Nequaquam censeo formidandas The King having by his Royal Edict K. H. â— his Speech to his Eng. Parliam called the English great Men of the Kingdom to London for that intent harangued them with a most gracious Speech smoother than Oil and sweeter than Honey or the Honey-comb thus My belov'd and faithful Friends Englishmen You who are the true born Inhabitants It seems the Norman Nob. tho' Summon'd refused to attend H. Parliam and to have joined with Robert and natural Proprietors of this Kingdom You know what undeniable Truth is founded in the Report that my Brother Robert hath been Elected and by God call'd to the glorious Government of the Kingdom of Jerusalem and how shamefully he has rejected that call for which Cause he deserves to be abandoned by God You also know among many other his ill Qualities that he is of a proud and brutal Disposition and that being as it were nurs'd in War and Blood he is an utter stranger to Peace that he publickly Treats you as contemptible and calls you Slaves and Gluttons and that his whole aim is to Tyrannize over you But I a mild gentle and pacifick King desire to protect you in Peace and in the enjoyment of your antient Laws and Liberties as I have often Sworn to do and to be guided by your Counsels whereby I may Govern you with the more Prudence and Moderation as a Mild and a gentle Prince Nay more than this if you will provide a Charter I am ready to confirm and Establish thereby and on my renewed Oath inviolably observe all those good Laws which the holy King Edward being inspired by God did with Wisdom ordain That so you standing faithfully and couragecously by me we may powerfully resist and repell such injuries as may be attempted against us by this Brother of mine who is the bloody Enemy of you and of the whole Kingdom of England For let me be but assisted with the Courage of you Englishmen I shall not in the least fear the vain Threats of those upstart Normans From the foregoing Passage concurrent with other circumstances of those Times I conceive we may raise the following conclusions 1. LL. Ed. Conf. c. 33.35 c The Convention abovemention'd being Convoked Edicto Regio c. was one of those extraordinary Parliaments before mentioned met together to consult De arduis Negotijs Regni i. e. how to secure the Possession of the Crown and not one of those stated and ordinary Parliaments which by the Saxon constitution were to be held twice Yearly viz. about the beginning of May and beginning of October which ordinary Parliaments were afterwards by divers Statutes LL. Ed. gari c. 5. See 4. Inst so 9. 36. E. 3. c. 10. St. 4. E. 3. c. 14. reduced to once a Year certainly i. e. whether Summoned or not or oftener if need were i. e. if there was any occasion to call one by a special Summons
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
Proxy and so many excellent Things were done that it was called Bonum Parliamentum At the Return of the Writs Ib. 6. the Parliament cannot begin 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 authorizing them to begin the Parliament or to prorogue it c. When a Parliament is call'd Ib. 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 Ib. 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 Ib. 17. If Offences done in Parliament might have been punish'd elsewhere Ibid. Vide 1 Inst Sect. 108. it shall be intended that at some Time it would have been put in Ure It doth not belong to the Judges Ib 50. to judge of any Law Custom or Priviledge of Parliament The Judges 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 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 It is the just and constant Course of Parliament Seld. Judic 95. to bring the Party accused to his Answer Yea 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 Sir R. Atkyns Argument c. 14. according to the Law and Usage of Parliament is properly and in the Judgment of the 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 and Corporation Ib. 34 41 51 55. Vide Rast St. 2. 3. E. 6. c. 36. Pref. 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 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 in the Right of them Ib. 55. are entire and due to both Houses for both make up the Parliament Knighton one of our best Historians doth notably disclose the antient Ends of calling Parliaments Knyghton de Eventibus Augliae l. 5. f. 2681. col 1.2 Pettyt's Rights c. in Pref. p. 43. 44. Hollings f. 1055. col 1. in saying Quod ex Antiquo Statuto Consuetudine landabili approbata c. That by an antient Statute and Custom 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 qualiterquoque 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 Minshieu But these six Degrees were never allowed to be six Estates of Parliament in his Etymological Dictionary tit Parliament says In a Monument of Antiquity meaning the antient Modus Tenendi Parliament shewing the Manner of holding the Parliament in the Time of K. Edward the Son of K. Etheldred which as the Note saith was delivered by the discreeter Sort of the Realm to William the Conqueror and allowed by him tis said That the Parliament consisted of six Ranks or Degrees it begins thus Rex est Caput Principium et Finis Parliamenti ita non habet Parem in suo Gradu Et sic a Rege solo primus Gradus est Secundus Gradus est ex Archiepiscopis Episcopis Abbatibus Prioribus per Baroniam Tertius Gradus est de Procuratoribus Cleri Quartus Gradus est de Comitibus Baronibus et aliis Magnatibus Quintus Gradus est de Militibus Comitatuum Sextus Gradus est de Civibus et Burgensibus Et ita est Parliamentum ex sex Gradibus En Antient temps tout le Parliament sea Insimul Rolls 1. Report fol. 18. ante 54. et le Separation fuit perle desire del Commons Mes nient obstant ils font forsque un Mese jen aie view un Record 30 H. 1. de lour degrees et seats 39 E. 3. per Choke ch Inst It is generally believed Reform'd vol. 2. p. 49. That the whole Parliament sate together in one House before E. 3. Time and then the inferior Clergy were a Part of that Body without Question But when the Lords and Commons were divided the Clergy likewise sate in two Houses and granted Subsidies as well as the Temporalities My Lord Chief Justice Coke says 1 Inst Sect. 164. fol. 109. The Parliament is the highest and most honourable and absolute Court of Justice of England consisting of the King the Lords of Parliament and the Commons And again the Lords are here divided into two Sorts viz. Spiritual and Temporal And the Commons are divided into three Parts viz. Into Knights of Shires or Counties Citizens out of Cities and Burgesses out of Boroughs In the High Court of Parliament all the whole Body
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
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 seem 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 vetustissima 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 Inst 74.76 The Parliament is of an absolute and unlimited Power in things Temporal Sir Rob. Atkyns's Argument c. 50. Ibid. within this Nation The Parliament hath the highest and most sacred Authority of any Court 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 and to his Heirs Males Crompton 20. b. Dr. and Student in that Case his Heirs Females shall also inherit and this was adjudged in Parliament One of the fundamental and principal Ends of Parliaments was Petit'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 6.1 p. 4. and 5. 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 for wrongs so by them done Covient per droit que le Roy ust Companions pur oyer et terminer aux Parliaments trestouts les breues et plaints de Torts de le Roy de la Roigne Horn's Mirror p. 9. et de lour Enfants et de Eux specialment de que Torts len ne poit aver autrement Common droit i. e. The King ought by Law to have Companions or associates to hear and determine in Parliament of all Writs and Plaints of all Torts or Wrongs as well of the King as of the Queen and their Children and especially of those Great Ones where one cannot otherwise have Common right for those wrongs 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 Mat. Paris and sordidly submitted to take the Crown at his Hand again Rot. Parl. 40. E. 3. No 7. 8. at a yearly Tribute In the Reign of our Noble King Edward the Third the Pope demanded this Rent and all the Arrears But 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 Sir R. Atkyn's Arg. p. 50. 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 Meridian 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 and Heirs apparent of a Man or Woman 4 Inst 36. may by Act of Parliament inherit during the Life of the Ancestor Ante 69. It may adjudge an Infant or Minor to be of full Age. Ibid. It may Attaint a Man of Treason after his Death Ibid. 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 secundum quid etiamque simpliciter 21 Rich. 2. The Lords Appellants accused the Duke of Gloucester 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. Cotten's Record p. 363. 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 the three Sons and Joan the Daughter Thomas Cromwel Vide post 4 Inst 36. Earl of Essex was attainted by Parliament 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'd 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 especially 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 i. e. Illegal The Stat. 11. Rich. 2. c. 5. Id. 42. That no Person should attempt to revoke any Ordinance then made was repealed for that such Restraint is unreasonable c. 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 Authority of 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 what transcendent Power and Authority the Parliament hath Id. 43 and tho' divers Parliaments have attempted to bar restrain suspend qualify or make void the Power of subsequent Parliaments yet could they never effect it for the latter Parliament hath ever Power to abrogate suspend qualify 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 Quod Leges posteriores priores contrarias abrogant An Act of Parliament doth include every Man's Consent Hobart 256. as well to come and unborn Persons as those present The Sovereign 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 the consent of Parliament as was resolv'd by all the Judges in the Princes case The King by his Letters Patents may make a Denizen Id. 87. Bro. Denizen N o 9. 36. H. 8. but cannot Naturalize him to all purposes as an Act of Parliament may do If a Man be Attainted of Felony Hakewel 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 yet the King may give to any attainted Person his Life by this Charter of Parliament The King cannot alter the Common Law Id. 90. or the general Customs of the Realm as Gavelkind Borough-English or the like without consent of Parliament Altho' a King have a Kingdom by Discent Ibid. yet 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 Proclamtion 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 Le Parliament d'Engleterre ne lia Ireland quoad Terras suas Brook 123. 91. Vide 20 H. 6.9 Crompton 22. b. 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 Quere infra 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 4 Inst 350. Sometimes the King of England call'd his Nobles of Ireland to come to his Parliament of England 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 of Judicature and both Houses together have Power of Judicature This Power is best understood by reading the Judgments and Records of Parliament at large Ibid. and the Journals of the House of Lords and 6 H. 8. c. 16. Rast 429 430. Vaughan 285. the Book of the Clerk of the House of Commons which is sometimes also styled a Record If Inconveniencies necessarily follow out of the Law only the Parliament can cure them If a Marriage be declared by Act of Parliament to be against God's Law Id. 327. we must admit it to be so for by a Law that is by an Act of Parliament it is so declared In many Cases Multitudes are bound by Acts of Parliament Id. 14. which are not Parties to the Elections of Knights Citizens and Burgesses as all they that have no Free-hold or have Free-hold in ancient Demesne and all Women having Free-hold or no Free-hold and Men within the Age of One and twenty Years Hob. 256. c. and we may add Persons unborn It is declared by the Lords and Commons in full Parliament upon Demand made of them on the Behalf of the King That they could not assent to any Thing in Parliament that tended to the disherison of the King and his Crown whereunto they were sworn The Expounding of the Laws doth ordinarily belong to the Reverend Judges Hakewel 94. and in Case of greatest Difficulty or Importence to the High Court of Parliament Errors by the Law in the Common-Pleas are to be corrected in the King's-Bench 4 Inst 22. Vid. Stat. 1 Jac. 1 c. 1. and of the King's-Bench in the Parliament and not otherwise i. e. where the Proceedings are by original Writ Instit Leg. 171.172 For if they are by Bill they may be corrected in the Exchequer Chamber by St. 27 Eliz. c. 8. from whence a Writ of Error lyes to the Parliament Actions at Common Law are not determined in this High Court of Parliament Selden's Judicature 2. yet Complaints have ever been receiv'd in Parliaments as well of private Wrongs as publick Offences And according to the Quality of the Person and Nature of the Offence they have been retained or referred to the Common Law There be divers Precedents of the Trial of Bishops by their Peers in Parliament Id. 4.5 as well for Capital Offences as Misdemeanors whereof they have been accused in Parliament And so there have been of Commoners As the Arch-Bishop of Canterbury 15 Ed. 3. n. 6 7 8. ibid. postea 44. 39. ibid 17 E. 3.22 And the Bishop of Norwich 7 Ric. 2. for Misdemeanors So were the Bishops of York and Chichester tried for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons Accused the Arch-Bishop of Canterbury of Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. And Anno 21 R. 2. The Commons accused the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traitor and banished him But if a Bishop be accused out of Parliament he is to be tried by an ordinary Jury of Free-holders for his Honour is not inheritable as is the Temporal Peers out of Parliament yet in all other Matters save that only of their Trial they have Priviledge as no Day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is Party and no Process in a Civil Action to be awarded
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
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
c. 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and of what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Q. Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de Jure suo for the Commons are then instead of a Jury and the Parties Answer and Examination of Witnesses are to be in their Presence Post 120. 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. Id. 98. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of a 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 viz. 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 Post 120. 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 secundum 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 are 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 Upper House have leave from the Lord Chancellor or Keeper Sir Simon d'Ewes Journal 527. Col. 2. to sit cover'd in the House but are alway uncover'd at a Committee 3. Car. 1. Petyt's Msscel Parliam 212 213. The Sentence of the Lords Spiritual and Temporal 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 or 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 in Particular both here and at Banbury And the Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution out of Time of Parliament Id. 213. Vide a Sentence pronounced by the Lords Die Martis 26. Julij 1642. against one John Escot of Launceston in the County of Cornwall for speaking Scandalously of the Parliament in Rush Col. Vol. 1. f. 759 760. And likewise against John Marston Clerk Rector of St. Mary Magdalen in the City of Canterbury ibid. See divers particulars touching the Power and Jurisdiction of the House of Lords in Prynn's Plea for the House of Lords c. as also a Book printed Anno 1669. Entitled The Grand Question concerning the Judicature of the House of Peers Stated c. See also Sir M. Hales of Parliaments Pa. 138 139. and ibid 140 c. where Attendants on the upper House may be Members of the House of Commons Q. CHAP. VI. 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 assirmed by Mr. Lambard Lambard's Archeion 257 258. that Burgesses were chosen to the Parliament before the Conquest The antient Towns call'd Boroughs Littleton Sect. 164. are the most antient 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. Atkyn's 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 antient as the Nation itself and may in the Sense of Julius Caesar be accounted among the Aborigines 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 seperately but in conjunction with those other Estates which they could not otherwise legally have done if their Original and Commencement could have been shewn During the British Saxon Petyt's Preface to the antient Rights of the Commons c. p. 3. and Norman Governments the Freemen or Commons of England as now call'd and distinguish'd from the great Lords were pars essentialis constituens an essential and constitutent part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages It is apparent Id. 12. and past all Contradiction that the Commons in the Times of the Britons Vid. Ch. 1 ante Saxons and Picts were an essential Part of the Legislative Power in making and ordaining Laws by which themselves and their Posterity were to be Govern'd and that the Law was then the golden Metwand and Rule which Measured out and allowed the Prerogative of the Prince and
cause why they sent Burgesses of Parliament and all the Proceedings thereupon are Coram non Judice illegal and void And the Right of sending Burgesses to the Parliament is questionable in Parliament only and the Occasioners Procurers Note and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice And note See Bohun's Inst Legalis 186.190 c. The Practice and Proceedings on Quo Warranto's Mandamus's and some other Prerogative Writs seem to have been an Invention of the Judges in order to draw the Rights and Privileges of Burroughs and Corporations as well as of the People under the Cognizance of B. R. c. Where the Articles against the Delinquents are ex Parte Domini Regis Selden 's Judicature 118. there the Commons cannot reply nor demand Judgment for the Suit is the King's and not theirs In Trewinnard's Case Id. 39. Dyer 60 61. The Priviledge of the Commons is termed the Priviledge of Parliament and the Judgment given in that Case by the House of Commons is there said to be The Judgment of the most High Court of Parliament Sir Robert Atkyn's Argument 35. which proves they are not without a Judicial Power The King cannot take notice of what is done in the Commons House Id. 53. or deliver'd to them but by the House itself and that is one of the Laws and Customs of Parliament In 31 Hen. 6. Id. 55. When the Commons requested the King and Lords to restore their Speaker to them c. The Judges being demanded of their Counsel therein See this Case reported at large in Bohun's Debates in Parliament p. 276. c. Ibid. after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason to judge of the Law signifies that they the Parliament can judge whether a Law be good or not in order to approve it and to re-enact it or to repeal a Law c. In 1621. Ibid. The House of Commons made a Protestation against all Impeachments other than in their House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Col. Vol. 1. f. 663. That regularly a Parliament-Man cannot be compelled out of Parliament to answer Things done in Parliament in a Parliamentary Course See Sir R. Atkins's Argument per Totum If it be done in a Parliamentary Course what Occasion can there be to answer for it But who shall judge what is a Parliamentary Course but a Parliament Not Judges of the Common Law for the Parliamentary Course differs from the Rules of the Common Law 27 Eliz. 1584 ordered Sir Simon d'Ewes Jour 347 Col. 2. That the Serjeant of this House do forthwith go to the Common Pleas Bar and charge the Recorder then pleading there to make his present Repair unto this House for his Attendance See and Note the Case of Judge Thorp Cottons Rec. 74 and 316. who 25 E. 3. was condemn'd to Death and to forfeit all his Lands and Goods for Bribery i. e. receiving 20 l. from a Person who had a Cause depending before him Note in the Parliament 11 R. 2. commonly called The Wonder working Parliament all the Judges as they were sitting in Westminster-Hall were arrested c. by Order of Parliament And the like happen'd to several Judges in the Convention Parliament upon the Revolution but Quere if their Commitment was by the Lords and Commons or by the Commons only See also the Journal of the House of Commons Journal of the Commons An. 1680. Anno 1680 several Orders and Resolutions of the Commons against divers of the Judges and others for encouraging Addresses c. in Order to obstruct the Meeting and Sitting of that Parliament And see there December the 30th the following Resolutions of that House viz. 1. That the several Writings Papers and Proceedings relating to such Members of the late Long Parliament of Pensioners who receiv'd Allowances out of the Monies appointed for secret Services be produced to this House 2. Nem. Contr. That no Member of this House shall accept of any Office or Place of Profit from the Crown without the Leave of this House nor any Promise of any such Office or Place during his being or continuing a Member of this House 3. That all Offenders herein be expell'd this House See there also the Report and Censure of the the Proceedings of divers of the Judges of Westminster-Hall viz. Sir Francis North Sir W. Scroggs Justice Jones and Baron Weston whereupon the House came to the following Resolutions viz. 1. That the Discharge of the Grand Jury of the Hundred of Osulston in Com. Middx by the Court of B. R. in Trin. Term last before the last Day of the Term and before they had finished their Presentments was arbitrary and illegal destructive to publick Justice a manifest Violation of the Oaths of the Judges of that Court and a Means to subvert the fundamental Laws of the Kingdom and to introduce Popery 2. That the Rule made by the Court of B. R. in Trinity Term last against Printing of a Book called The Weekly Pacquet of Advice from Rome is illegal and arbitrary the Judges thereby usurping to themselves Legislative Power to the great Discouragement of the Protestants and countenancing of Popery 3. That the Court of King's Bench in the Imposition of Fines on Offenders have of late Years acted arbitrarily illegally and partially favouring Papists and Persons popishly affected and excessively oppressing his Majesty's Protestant Subjects 4. That the refusing sufficient Bail in those Cases wherein the Persons committed were Bailable by Law was illegal and a high Breach of the Liberties of the Subject 5. That the Expressions in the Charge given to the Grand Jury by Baron Weston were a Scandal to the Reformation and tending to raise discord between His Majesty and his Subjects and to the Subversion of the antient Constitution of Parliaments and of the Government of this Kingdom 6. That the Warrant mentioned in the Report i. e. for Harry Carrs Commitment c. was arbitrary and illegal And then follow the several Resolutions for Impeaching the Judges above-named See also Ibid. Jan. 3. and the Articles against Scroggs c. And Jan. 4. 1680 resolved Nem. Cont. That such Members of this House who in this Time of imminent Danger do absent themselves without Leave of the House are to be reputed Deserters of their Trust and Neglecters of that Duty they owe to this House and their Country 27 Eliz. 1584 John Bland a Currier for making dishonourable Reflections on the House of Commons brought to the Bar and pardoned upon his Submission paying twenty Shillings Fee to the Serjeant and taking the Oath of Supremacy Eodem An. Id. 368. Col. 1. A Warrant for a Writ of Priviledge awarded for setting at Liberty John Pepler Servant to Sir Philip Sidney a Member of this House now Prisoner for Debt in the Compter in
was disabled for ever to serve in Parliament Quere post 141.146 17 Dec. 1584. 27 Eliz. Id. 76. Vide Sir Simon d'Ewes Jour 340.341 342. A Bill against Jesuits and Seminary Priests pass'd upon the Question Dr. Parry only gave a Negative and after inveighed in violent Speeches against the whole Bill affirming it to savour of Treason to be full of Blood Danger Despair and Terror or Dread to the English Subjects of this Realm our Brethren Uncles and Kinsfolks Upon which he was sequestred from the House into the outer Room into the Hands of the Serjeant and not to confer with any while the House was in Debate of that Business Afterward he was brought to the Bar and there kneeling he was told by the Speaker If he thought fit the House was content to hear his Reasons but he refusing was committed to the Serjeant's Ward The next Day he was brought to the Bar and kneeling confessed he had unduly behaved himself and had rashly and unadvisedly uttered those Speeches he had used and was with all his Heart very sorry for it alledging withal he had never been of the House till that Session and so could not so well know the Orders of the House as he shou'd do and that he would not henceforth willingly offend the House nor any one Man in it and so humbly prayed their good Favour toward him Whereupon being again sequestred out of the House after some Arguments and Debates it was resolved upon this Acknowledgement of his Fault and his humble Submission he shou'd be received into this House again as a Member thereof and take his Place as before so that he would still afterward behave himself in good sort as he ought to do and thereupon being call'd again to the Bar and there Kneeling and directly reiterating his former Confession of his Fault and humble Submission with promise of better Demeanor he was admitted 18 Febr. 1584. Sir Simon d'Ewes Jour 352. Col. 2 27 Eliz. Upon a Motion by Mr. Diggs That the same Dr. Parry a late unworthy Member of this House and now Prisoner in the Tower hath since his Submission and Reconcilement so mis-behaved himself as deserveeth the said Imprisonment Resolved by the House That he be disabled to be any longer a Member of this House and that a Warrant be directed for choosing another Burgess in his stead 18 Jac. 1. Sir Giles Mompesson for being a Vid. Post Conysby's Case Monopolist and for other great and insufferable Crimes by him Committed to the Abuse of his Majesty and grievous Oppression of the Subjects was turn'd out of the House committed to the Tower and after Impeached before the Lords who gave Judgment upon him 1. Petyt's Miscel Par. 91 92 To be degraded of the Order of Knighthood 2. To stand perpetually in the degree of a Person Out-lawed for Misdemeanors and Trespasses 3. His Testimony never to be received in any Court nor to be of any Inquisition or Jury 4. To be excepted out of all General Pardons 5. That he should be Imprisoned during his Life 6. Not to approach within twelve Miles of the Courts of the King or Prince nor at the King's High Court usually held at Westminster 7. That the King should have the profits of his Land for Life and all his Goods and Chattels 8. That he should be fined at 10,000 l. 9. He was also disabled to hold or receive any Office under the King or for the Common-wealth 10. And lastly Ever to be held an infamous Person 19 Jac. 1. Sir John Bennet Id. 92. for receiving Bribes c. Ordered by the Commons House to be safely kept by the Sheriffs of London to be put out and no longer continue a Member of the House and a Warrant for a Writ for a new choice In the same Parliament Id. 93. Sir Robert Floyd for being a Projector of a Patent for a Monopoly resolved una voce That he was a Person unworthy to continue a Member of this House and adjudged presently to be put out 3 Car. 1. Id. 94 95. Mr. John Barbour Recorder of Wells for subscribing a Warrant for the Quartering of Soldiers suspended the House and sequestred till the Pleasure of the House be known 13 Febr. 1606. Id. 77 78.79 Upon a Report made in the House of the Remembrances formerly set down of the Particulars of a Conserence the Speaker offering to read the Paper and being interrupted by some Motions and Disputes Whether they shou'd be read one by one and so debated or all at once In that Difference one of the Knights for Bucking hamshire with a loud Voice not standing up Bare-Headed as the Order is pressed to have them Read The House observing his earnestness and manner of Sitting and Calling for Order's sake urged him to stand up and speak He stood up and pretending to offer some Reasons fell into an Invictive against the Scots much distasting the House yet out of a common Care to expedite the weighty Business then in Hand his Speech was neglected without Tax or Censure But on Monday following it was remembred and his Words of Offence recited in particular The Gentleman being absent was sent for by the Serjeant The Serjeant having brought the Offender it was moved he might be heard at the Bar which was assented to and after he had spoken he was commanded to retire and not long after was call'd in again to the Bar where Kneeling Mr. Speaker acquainted him Since the Offence was so apparently heinous the House did not hold it fit that any Particulars shou'd be named or to give any Reason of their Judgment but the Order was That he shou'd be carry'd to the Prison of the Tower and there remain during the Pleasure of the House and that he shou'd be dimiss'd from his Place of Knight of the Shire for Bucks and a new Writ to issue for a new Choice 15 Febr. 18 Jac. 1. Id. 79. A Bill being read the second Time for the better Observation of the Sabbath one of the Members made an Invective against it and something which seem'd to reflect on a Member of the House who presented it as favouring a Puritan and factious Spirit Exceptions were taken at the Words After he had explained himself he was ordered o withdraw out of the House and Debate being had he was call'd to the Bar and upon his Knees he received the Judgment of the House pronounced by the Speaker That he should be discharged from the Service of the House with an Intimation that his Judgment was very merciful for that the House might for so exorbitant an Offence have Imprison'd and further punish'd him 3 Apr. 1604. Id. 80. In a Debate upon a Bill a Member of the House utter'd some Speeches highly distasting the House but no Notice was taken of it till the Bill was Committed and then the Words being repeated he was call'd to the Bar where he made his Excuse and was Pardon'd 26 Apr. 1641. Ibid. Great Offence was taken by
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
of James the Third or of Scotland by the Name of James the Eighth or the Stile and Title of King of Great Britain hath not any Right or Title whatsoever to the Crown of this Realm or any other the Dominions thereto belonging And I do renounce refuse and abjure any Allegiance or Obedience to him And I do swear That I will bear Faith and true Allegiance to His Majesty King George the Second and Him will desend to the utmost of my Power against all Traiterous Conspiracies and Attempts whatsoever which shall be made against his Person Crown or Dignity And I will do my utmost Endeavour to disclose and make known to His Majesty and his Successors all Treasons and Traiterous Conspiracies which I shall know to be against Him or any of Them And I do faithfully Promise to the utmost of my Power to support maintain and defend the Succession of the Crown against him the said James and all other Persons whatsoever As the same Succession by an Act entitled An Act for the further Limitation of the Crown and better Securing the Rights and Liberties of the Subject is and stands limited to the Princess Sophia Electress and Dutchess Dowager of Hanover and the Heirs of Her Body being Protestants And all these Things I do plainly and sincerely acknowledge and swear according to these express Words by me spoken and according to the plain and common Sense and Understanding of the same Words without any Equivocation mental Evasion or secret Reservation whatsoever And I do make this Recognition Acknowledgement Abjuration Renunciation and Promise heartily willingly and truly and upon the true Faith of a Christian So Help me God CHAP. XI Who may be Elected to Parliament BY Stat. 5. 4 Inst 48. Sir Simon d'Ewes Jour 39 40. Eliz. c. 1. no Knight Citizen or Burgess can sit in Parliament before he hath taken the Oath of Allegiance and Supremacy but Note other Oaths are now appointed Vide ante Because the Words of the Writ for Election of Knights 4 Inst 10. c. were duos Milites gladiis cinctos c. it required an Act of Parliament that notable Esquires might be eligible Therefore the Statute says St. 23. H. 6. c. 15. the Knights of the Shires for the Parliament must be notable Knights or such Esquires or Gentlemen born of the same County as be able to be Knights Any Man may be chosen Knight St. 18. Ed. 4. c. 2. in Ireland Citizen or Burgess tho' he be not dwelling within the same Every Knight Citizen and Burgess shall be resiant and dwelling within the Counties Cities and Towns Every Knight Citizen or Burgess taking it upon him and not chosen in the manner prescribed by the Act of Parliament to forfeit an hundred Pounds St. 33 H. 8. c. 1. in Ireland Si home n'esteaut Inhabitant Meor so 551. n. 741 ne free de un Borough il poit Eslier s'il voit server a lour Election ou nemy pur le Borough If a Man be not an Inhabitant nor free of a Borough he may choose if he will serve at their Election or not for the Borough By the Statute none ought to be chosen a Burgess of a Town Rush Col. Vol. 1.689 in which he doth not inhabit but the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good Warrant for us to give Judgment against him by Whitlock The King cannot grant a Charter of Exemption to any Man to be freed from Election of Knight Citizen 4 Inst 49. or Burgess of the Parliament A Person Outlawed in a Personal Cause may be a Burgess Towns Col. 63.64 Vide John Smiths Ca. Si Simon d'Ewes Jour 48. Col. 2.480 Col. 1 Vide Sir Simon d'Ewes Jour 481. Col. 2. 482. Col. 1. See Bohun's Collection p. 278. 279. If exception be taken to such an Election and an Outlawry alledged to disinable him the Stat. 23 Hen. 6. c. 15. will disinable most of this House for they ought to be Burgesses resident Tho' the Common Law doth disinable the Party yet the Priviledge of the House being urged that prevaileth over the Law A Man Attainted Ibid. Outlawed or Excommunicated or not lawfully elected if he be returned out of all doubt is a lawful Burgess A Knight Banneret 4 Inst 46. being no Lord of Parliament is eligible to be Knight Citizen or Burgess of the House of Commons being under the Degree of a Baron which is the lowest Degree of the Lord's House An Earl's Son may be a Member of the House of Commons Sir Simon d'Ewes Jour 244. Col. 2. 4 Inst 47. One under the Age of one and twenty years is not eligible Neither can any Lord of Parliament sit there till he be full one and twenty Years An Alien cannot be elected of the Parliament Ibid. because he is not the King's Liege Subject and so it is albeit he be made Denizon by Letters Patents c. But if an Alien be naturaliz'd by Parliament then he is eligible to this or any other Place of Judicature No Alien denizated ought to sit here Petyt 's Miscell Parl. 175. Ibid. per Sir Edward Coke Note also the St. 4 An. c. 8. for settling the Succession c. excludes Aliens Resolved upon the Question that the Election of Mr. Walter Steward being no natural born Subject 4 Inst 47. is void and a Warrant to go for a new Writ None of the Judges of the King's Bench or Common Pleas or Barons of the Exchequer that have Judicial Places can be chosen Knight Citizen or Burgess of Parliament as it is now holden because they are Assistants in the Lord's House Yet read Parl. Roll. 31 H. 6. But any that have Judician Places in other Courts Ecclesiastical or Civil Ibid. being no Lords of Parliament are eligible None of the Clergy tho' he be of the lowest Order is eligible to be Knight Moor so 783. n. 1083. 4 Inst 47. Citizen or Burgess of Parliament because they are of another Body viz. of the Convocation The Clergy of the Convocation-House are no Part or Member of the Parliament Hakewel 59. Vide Fox's Book of Martyrs f. 1639. 4 Inst 48. A Man Attainted of Treason or Felony c. is not eligible For he ought to be magis idoneus discretus sufficiens Mayors and Bailiffs of Towns Corporate are eligible 4 Inst 48. Vide contra Brook Abridg. tit Parl. 7. At a Parliament holden 38. H. 8. it was admitted and accepted that if a Burgess of Parliament be made a Mayor of a Town or have Judicial Jurisdiction Crompt 16. or is Sick c. that these are Causes sufficient to choose others Any of the Profession of the Common Law and which is in Practice of the same 4 Inst 48. is eligible By special Order of the House of Commons Ibid. the Attorney General is not eligible to be a Member of the House of Commons Vide infra At the
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
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
and every the Sheriffs Mayors G. Britain Bailiffs and other Officers The Act to be read by the Sheriff c. after reading the Writ to whom the Execution of any Writ or Precept for electing any Members belongs shall at the Time of such Election immediately after the Reading of such Writ or Precept read or cause to be read openly before the Electors there assembled this present Act and every Clause therein contained and the same shall also openly be Read once in every Year at the General Quarter Sessions of the Peace after Easter and at the Quarter Sessions after Easter and on electing Magistrates c. for any County or City and at every Election of the chief Magistrate in any Borough Town Corporate or Cinque-Port and at the annual Election of Magistrates and Town Counsellors for every Borough in Scotland That every Sheriff Under-Sheriff Wilful Offence forfeits 50 l. Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for the electing of Members doth belong for every wilful Offence contrary to this Act shall forseit 50 l. to be recovered with full Costs as before directed Provided Prosecution to commence within two Years That no Person shall be made liable to any Incapacity Disability Forfeiture or Penalty by this Act unless Prosecution be commenced within two Years after such Incapacity c. incurred or in Case of a Prosecution the same be carried on without wilful Delay any Thing herein to the contrary After a Recital of the St. 7.8 St. 6. G. 11. c. 23. W. 3. and the Inconveniencies of County Courts being adjourned to Mondays Fridays or Saturdays it enacts That no County Court in England shall be adjourn'd to a Monday Friday or Saturday and all Adjournments and Acts done at such Courts so adjourn'd to be null and void any Law Custom or Usage to the contrary Provided That any County Court begun holden on or adjourned to any Day not prohibited by this or the said former Act for electing any Knight of the Shire for any County or for hearing and determining Causes or for such other Matters and Business as are usually transacted at County Courts may be adjourned over from Day to Day tho' the same may happen to be on a Monday Friday or Saturday until such Election or other Matters be fully finished any thing therein to the contrary c. CHAP. XIII Election of the Speaker THE Speaker is he that doth prefer and commend the Bills exhibited to the Parliament Arc. Parl. 3. Smyth's Common-wealth 75. and is the Mouth of the Parliament It is true 4 Inst 8. Smyth's Common-wealth 75. See Bohun's Coll. 352. contra the Commons are to choose their Speaker but seeing that after their Choice the King may refuse him for avoiding of expence of Time and Contestation the Use is as in the Conge d'Eslier of a Bishop that the King doth name a discret and learned Man whom the Commons elect But without their Election no Speaker can be appointed for them 4 Inst 8. because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him And therefore a grievous Sickness is a good Cause to remove the Speaker Id. 8. and choose another So in 1 Hen. 4. Sir John Cheyny discharged and so William Sturton So in 15 Hen. 6. Sir John Tyrrel removed So March 14. 1694. Sir John Trevor The first Day each Member is called by his Name Modus tenend Pal. 35. every one answering for what Place be serveth That done they are willed to choose their Speaker who tho' nominated by the King's Majesty is to be a Member of that House Their Election being made he is presented by them to the King sitting in Parliament 35. So Sir Thomas Gargrave 1 Eliz. So Christopher Wray 13 Eliz. So Robert Bell 14 Eliz. See Bohun's Coll. 352 353. So John Puckering 27 Eliz. So George Snagg 31 Eliz. So Edward Coke 35 Eliz. So Yelverton 39 Eliz. So John Crook 43 Eliz. So Sir Thomas Crew 19 Jac. 1. So Sir Heneague Finch 1 Car. 1. cum multis aliis The Speaker ought to be religious Towns Coll. 1.4 honest grave wise faithful and Secret These Virtues must concur in one Person able to supply that Place The long Use hath made it so material Elsyng 154 that without the King's Commandment or Leave they cannot choose their Speaker Sed aliter ab Antiquo Surely the Election of the Speaker was antiently free to the Commons Id. 155. to choose whom they would of their own House which appears in this that the King never rejected any whom they made Choice of Vide contra Sir Simon d'Ewes Journ 42. Col. 1. where he saith That 28 Hen. 6. Sir John Popham was discharg'd by the King i. e. on his excuse and thereupon the Commons chose and presented William Tresham Esq who made no Excuse See the like of Paul Foley in Bohun's Collection 353. The Cause of Summons being declared by the King or Chancellor Elsing 151 Cook 12 115. Smyth's Common-wealth 79. the Lord Chancellor confers first with his Majesty and then in his Name commands the Commons to assemble in their House and to choose one of their Members to be their Speaker and to present him to his Majesty on a Day certain Upon which the Commons shall presently assemble themselves in the Lower House Co. 12.115 and he is to be a Member of their Parliament The Commons being thereupon assembled in their House Elsyng 152 Vid. Town Coll. 174. See Bohun ut Supra one of the Commons puts the rest in mind of their Charge given in the Upper House touching the choosing of a Speaker and then doth of himself commend one unto them and desires their Opinions to be signified by their Affirmative or Negative Voices and if any Man stand up and speak against him so named alledging some Reason he ought to name another Some Person when the generality of Members are come Scobel 3. Vid. Town 174. Vide Sir S. d'Ewe's Jour passim and sit doth put the House in mind that for their better proceeding in the weighty Affairs they are come about their first Work is to appoint a Speaker and re-commends to the House some Person of Fitness and Ability for the Service and Dignity which usually hath been one of the long Robe If more than one Person be named for Speaker Scobel 3. and it be doubtful who is more generally chosen sometime one of the Members standing in his Place doth by Direction or Leave of the House put a Question for determining the same or the Clerk at the Board So it was in the first Session 1 Jac. 1. Scobel 4. when Sir Edward Philips the King's Serjeant at Law was first named by Mr. Secretary Herbert as fit for that Place and the Names of others were mention'd but the more general Voice run upon Sir Edward Philips and a Question being put he was by general Acclamation chosen Speaker When the Speaker
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
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
Bills are sent down by Serjants at Law or by two Doctors of the Civil Law being Masters of the Chancery and Attendants in the Vpper House accompanied sometimes with the Clerk of the Crown an Attendant there Bills of greater Moment are usually sent down by some of the Judges Assistants there Id. 178. accompanied with some of the Masters of the Chancery who being admitted Entrance do come up close to the Table where the Clerk sits making three Congies and there acquainting the Speaker That the Lords have sent unto the House certain Bills doth read the Titles and deliver the Bills to the Speaker and so departeth with three Congies When they are out of the House the Speaker holds the Bills in his Hands and acquaints the House That the Lords by their Messengers have sent to the House certain Bills and then reading the Title of every Bill delivereth them to the Clerk to be safely kept and to be read when they shall be called for When Bills are thus passed by both Houses Id. 179. upon three several Readings in either House they ought for their last Approbation to have the Royal Assent which is usually deferred till the last Day of the Session The Royal Assent is given in this sort Id. 181. Vid. Towns Coll. 12 49. Vide Sir S. d'Ewe's Jour 467. After some Solemnities ended the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given him from his Majesty in that Behalf To the Subsidy Bill Towns Coll. 49. because it is the meer Gift of the Subject the Queen's Consent is not required for the passing of it but as it is implied in her thankful Acceptance Nor to the Bill of Pardon because it is originally her free Gift no other Circumstance is required than that the thankful Acceptance thereof by the Lords and Commons be likewise expressed it being but once read in either House before it comes at last to be thus expedited To all other Bills either Private or Publick the Queen's express Consent though in different Words is always requisite February 9. Id. 127. 1597. 39. Eliz. Her Majesty gave her Royal Assent to twenty four publick Acts and nineteen private and refused forty eight which had passed both Houses If it be a publick Bill Towns 13. to which the King assenteth the Answer is Le Roy le veult in English The King wills it If a private Bill allowed by the King the Answer is Soit fait come il est desire i. e. Be it done as is desired If a publick Bill which the King forbears to allow Le Roy se avisera i. e. The King will consider To the Subsidy Bill Id. 12. Le Roy remercie ses loyaux Subjets accept lour Benevolence ainsi le veult i. e. The King thanks his loyal Subjects accepts their Benevolence and so wills it To the General Pardon Towns Col. 13.49 Sir Simon d'Ewe's Jour 467. Gol. 2. The Assent is thus Les Prelates Seigneurs Commons encest Parliament assembles an nom de toutes vous autres Subjets remercient tres humblement vostre Majestie prient à Dieu que il vous donne en sante bon vie longue The Prelates Lords and Commons in this Parliament assembled in the Name of all other your Subjects do most humbly thank your Majesty and do pray God to give you Health and a good and long Life A private or particular Act is always field Sir R. Atkin's Argument 57. Arc. Parl. 45. but never enrolled Every Bill that passeth the Parliament shall have Relation to the first Day of the Parliament though it come in at the End of the Parliament unless a Time be specially appointed by the Statute when it shall commence If a Bill be admitted to be read Scobel 41. it is to be presented fairly written without any Razure or Interlineation together with a Breviat of the Heads of the Bill and unless it be so tendered the Speaker may refuse it Until the Bill be open'd Id. 42. no Man may speak to it An Act was read Towns c. 187. to which no Man offered to speak Whereupon Mr. Speaker stood up and said That if no Man speak it must be ingrossed i. e. Silence gives Consent It is the usual Rule of the Law Towns Col. 134. That where the Numbers of the Affirmative and Negative are equal Semper presumetur pro negante The Negatives by Custom are to carry it i. e. That the former Law is not to be changed When Votes are digested into a Bill Scobel 45. and that comes to be read or passed it is lawful to debate or argue against all or any Part thereof to alter or reject it Because Votes in order to a Bill are no further binding but that the Bill is to be presented containing those Votes and because the Bill gives Occasion of a more large Debate before it can pass into a Law every Member hath Liberty to offer his Reasons against it as well as give his Vote as often as it comes to a Question Ibid. When a Bill has been read the second Time and opened any Member may move to have it amended but must speak but once to it and therefore must take all his Exceptions to it and every Part of it at one Time for in the Debate of a Bill no Man may speak but once the same Day except the Bill be read any more than once that Day and then he may speak as often as it is read Id. 58. 23 Junii 1604. It was agreed for a Rule If a Bill be continue in Speech from Day to Day one may not speak twice to the Matter of the same Bill Note His. Refor Vol. I. p. 144. A Bill was read in the House of Lords four Times Quere if in one Day CHAP. XVIII Concerning Committees A Committee of either House ought not by Law to publish their own Refults Rush Part. 3. Vol. 2. p. 74. neither are their Conclusions of any Force without the Confirmation of the House which hath the same Power of controuling them as if the Matter had never been debated Committees are such as either the Lords in the Higher House Sir Tho. Smyth 's Common-Wealth 75. or Commons in the Lower House do choose to frame the Laws upon such Bills as are agreed upon and afterward to be ratified by the same Houses The Proceeding in a Committee is more honourable and advantageous to the King and the House Rush Col. 557. for that Way leads most to the Truth And it is a more free and open Way where every Man may add his Reason and make Answer upon the hearing of other Mens Reasons and Arguments For Referring a Bill to Committees Sir Simon d'Ewe 's Jour 186. it is chiefly for Amendment or Alteration thereof after it hath been penned and put into the House by some one or
Sir Francis Popham being returned a Burgess for Chippenham by one Indenture Id. 14. and another Person returned for the same Place by another Indenture it was moved he might be admitted into the House till the Matter were determined But he was not so admitted and it was referred to the Committee for Privileges 21 Jac. 1. Id. 15. Two Indentures were return'd for Southwark the one returned Yarrow and Mingy the other Yarrow and Bromfeild Upon a Report from the Committee of Elections it was resolved That the Election and Return for Yarrow should stand good and that he should sit in the House 22 Martii Ibid. 21 Jac. 1. Sir John Jackson and Sir Thomas Beaumont were both returned for one Burgess's Place for Pontefract Ordered That the Committee take the Election into Consideration to Morrow and that in the mean Time the Parties forbear to come into the House CHAP. XXI A Session of Parliament and of Prorogations and Adjournments WHAT shall make a Session of Parliament See 1 Rol. R. 29. Hutton 61. 4 Inst 27. 1 Siderf 457. 1 Mod. Rep. 151 155. If several Bills are passed at one and the same Parliament none of them shall have Priority of the other for they are made all in one Day and Instant and each of them have relation to the first Day of the Parliament though in several Chapters and shall so be construed as if they had been all comprehended in one and the same Act of Parliament Sir W. Jones Rep. 22. Hob. 111. Bro. tit Parl. 86. and Relat. 35. Plowd 79.6 Levintz 9. Crooke says That though in Fiction of Law a Statute shall have relation to the first Day of the Parlaiment yet revera nothing is settled nor is it a perfect Statute till the Parliament is ended Jones ut sup 370. Vide cont ibid. 371. Hales Justice said That if the Parliament has several Prorogations and in the second or third Session an Act is made this shall not have relation to the Day of the Beginning of the Parliament that is to say to to the first Day of the first Session but only to the first Day of the same Session in which it is made Plowd 79.6 In a Session of Parliament though it continue never so many Weeks yet there is nothing prius aut posterius but all Things are held and taken as done at one and the same Time Rush Vol. I. Page 581. Jones in the Case of Sir John Elliot Ibid. p. 687. says We are Judges what shall be said a Session of Parliament Sed Quere de hoc The Passing of any Bill or Bills 4 Inst 27. by giving the Royal Assent thereto or the giving any Judgment in Parliament doth not make a Session but the Session doth continue till that Session be prorogued or dissolved And this is evident by many Presidents in Parliament ancient and modern 14 Ed. 3. Ibid. On the first Monday a Grant of c. being given to the King was made a Statute and pass'd both Houses and had the Royal Assent thereunto yet after this the Parliament continued and divers Acts made and Petitions granted 3 Rich. 2 Declared by Act of Parliament Ibid. That the killing of John Imperial Ambassador of Genoa was High Treason yet the Parliament continued long after and divers Acts made c. 7 Hen. 4. Ibid. An Act made for certain Strangers departing the Realm c. yet the Parliament continued till Dec. 8. Hen. 4. 1 Hen. 7. Ibid. The Attainders of such as were returned Knights Citizens and Burgesses were revers'd by Act Parliament before they could sit in the House of Commons and the Parliament continued and divers Acts made 33 Hen. 8. Ibid. At the Beginning of the Parliament the Bill of Attainder against Queen Catherine Howard passed both Houses yet the Parliament continued and divers Acts passed Though Bills passed both Houses Ibid. and the Royal Assent be given thereto there is no Session until a Prorogation or a Dissolution The Diversity between a Prorogation and an Adjournment Ibid. or Continuance of the Parliament is That by the Prorogation in open Court there is a Session and then such Bills as passed either or both Houses and had no Royal Assent to to them must at the next Assembly begin again Every several Session of Parliament is in Law a several Parliament Ibid. Hutton 61. Brook tit Parl. 86. But if it be but adjourned or continued then there is no Session and consequently all Things continue in the same State they were in before the Adjournment or Continuance The Titles of divers Acts of Parliament be 4 Inst 27. At the Session holden by Prorogation or by Adjournment and Prorogation but never by Continuance or Adjournment tantùm And the usual Form of Pleading is ad Sessionem tentam c. per Prorogationem The Adjournment or Continuance is much more beneficial for the Common-wealth 4 Inst 28. for expediting of Causes than a Prorogation The King desired the House of Commons not to make a Recess in the Easter Holidays Rush Col. 537 This Message for Non-recess was not well pleasing to the House Sir Robert Philips first resented it and took Notice That in 12 18 Jac. 1. upon the like Intimation the House resolved It was in their Power to adjourn or sit Hereafter said he this may be put upon us by Princes of less Piety Let a Committee consider hereof and of our Right herein and to make a Declaration Sir Edward Coke said The King makes a Prorogation but this House Adjourns itself The Commission of Adjournment we never read but say This House adjourns it self If the King writes to an Abbot for a Corody for a Vallet if it be ex rogatu though the Abbot yeilds to it it binds not Therefore I desire that it be entered That this be done ex Rogatu Regis And this Matter touching his Majesty's Pleasure about the Recess Rush Col. 537. was referred to a Committee and to consider the Power of the House to adjourn itself The Sovereign may adjourn the Parliament Sir Simon d'Ewe's Jour 318. Col. 2. as well as the Parliament adjourns itself When a Parliament is called 4 Inst 28. Hutton 61. Vid. Sir Simon d'Ewe's Jour 407. Col. 1. and doth sit and is dissolved without any Act of Parliament passed or Judgment given it is no Session of Parliament but a Convention 18 Rich. 2. The Petitions of the Commons were answered 4 Inst 28. and a Judgment given in the King's Bench reversed but no Act passed Yet without Question it was a Session else the Judgment should not be of Force Many Times Judgments given in Parliament have been executed Ibid. the Parliament continuing before any Bill passed If divers Statutes be continued till the next Parliament Hutton 61. or next Session and there is a Parliament or Session and nothing done therein as to Continuance all the said Statutes are discontinued and gone 8 April Hakewel 180. 1604. In the last Session of the first Parliment of K.
The House may be adjourned two Ways to wit by the King i. e. by Writ or by the House itself the last is their own voluntary Act which the King cannot compel for Voluntas non cogitur Note Rush 3 Part Vol. I. pag. 385. Vnder the Number of forty Members the House of Commons is not reputed a House so as to make an Adjournment CHAP. XXII The proper Laws and Customs of Parliament THE Laws 4 Inst 50. Customs Liberties and Privileges of Parliament are better to be learned out of the Rolls of Parliament and other Records and by Precedents and continual Experience then can be expressed by any one Man's Pen. If an Ordinance only be entered in the Parliament Roll Sir William Jones pag. 104. and it hath the Reputation and Use of an Act of Parliament that makes it an Act of Parliament If any doubt be conceived upon the Words or Meaning of an Act of Parliament Rush Vol. 3. pag. 77 78. it is good to construe it according to the Reason of the Common Law When Laws shall be altered by any other Authority Ibid. pag. 653. than that by which they were made says King Charles the First in his Speech at Newark to the Inhabitants of Nottingham 1642. your Foundations are destroyed As every Court of Justice hath Laws and Customs for its Directions 4 Inst 15. some by the Common Law some by the Civil and Canon Law some by peculiar Laws and Customs c. so the High Court of Parliament suis propriis Legibus Consuetudinibus subsistit It is Lex Consuetudo Parliamenti Ibid. that all weighty Matters in any Parliament moved concerning the Peers of the Realm or Commons in Parliament assembled ought to be determined adjudged and discussed by the Course of Parliament and not by the Civil Law nor yet by the Commons Laws of this Realm used in more inferior Courts which was so declared to be secundùm Legem Câ—nsuetudinem Parliamenti concerning Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari Ratione is for the Commons for any Thing moved or done in the House of Commons and the rather for that by another Law and Customof Parliament the King cannot take Notice of any Thing said or done in the House of Commons but by the Report of the House of Commons and every Member of Parliament hath a judicial Place and can be no Witness And this is the Reason that Judges ought not to give any Opinion of a Matter of Parliament because it is not to be decided by the Common Laws but secundùm Legem Consuetudinem Parliamenti and so the Judges in divers Parliaments have confessed And some hold That every Offence committed in any Court punishable by that Court must be punished proceeding criminally in the same Court or in some higher and not in any inferior Court and the Court of Parliament hath no higher By the ancient Law and Custom of Parliament Id. 14. a Proclamation ought to be made against being armed against Games Plays and strange Shews c. during the Parliament that the Parliament may not be disturbed or the Members thereof who are to attend arduous and urgent Business be not withdrawn Dec. 15. 1597. Resolved Towns Col. 116. Vide. Sir Simon d'Ewe's Jour 505. Col. 1. according to the ancient Custom of the House That all the Members of the same which did speak against passing of the Bill should go forth of the House to bring the Bill into the House again together with the Residue of the Members which went out before with the passing of the said Bill All the Members of the House being gone forth except Mr. Speaker and the Clerk Mr. Controller brought in the Bill in his Hand accomanied with all the Members of the House and delivered the said Bill to Mr. Speaker 17 Dec. 1597. The same Ceremony on the like Occasion omitted Id. 117. Sir Simon d'Ewe's Jour 574. Col. 2. upon a Motion of the Speaker and ordered accordingly upon the Question 18 Dec. 1601. Towns 332. As the Speaker was coming to the House in the Morning the Pardon was delivered unto him which he took and deliver'd it to the House which they sent baek again because it was not brought according to Course The Subsidy of the Clergy was sent in a Roll according to the usual Acts Id. 333. To which Sir Edward Hobby took Exceptions because it was not sent in a long Skin of Parchment under the Queen's Hand and Seal so it was sent back and then the other was sent Si les Commons grant Poundage pur quatre Ans Brook 119.4 Crompt 8. les Seigneurs grant nisi pur deux Ans le Bill ne serra re-bayl al Commons mes si les Commons grant nisi pur deux Ans les Seigneurs pur 4 Ans la ceo serra redeliver al Commons Et in cest case les Seigneurs doient fair un Scedule de lour Entent ou d'endorcer le Bill en cest Form Les Seigneurs ceo assentont pur durer pur quatuor Ans Et quant les Commons ount le Bill arere ne volent assenter a ceo ceo ne poet estre un Act mes si les Commons volent assenter donques ils endorce lour Respons sur le Margent de bass deins le Bill en tiel Form les Commons sont assentuz al Scedule les Seigneurs a mesme cestuy Bill annex donques serra bayl al Clerk del Parliament If the Commons grant Poundage for four Years and the Lords grant it but for two Years the Bill shall not be sent back to the Commons but if the Commons grant but for two Years and the Lords for four Years there it shall be redelivered to the Commons And in that Case the Lords may make a Schedule of their Intent or Endorse the Bill in this Form The Lords do assent to the continuing for four Years And when the Commons have the Bill again and will not assent to it that cannot be an Act But if the Commons will assent then they endorse their Answer on the Margin below within the Bill in this Form The Commons do assent to the Schedule of the Lords annexed to this Bill and then it shall be sent to the Clerk of the Parliament The Custom and Privilege of this House hath always been first Vide Sir Simon d'Ewe's Jour 483. Col. 2. to make Offer of the Subsidies from hence then to the Upper House except it were that they present a Bill unto this House with Desire of their Assent thereto and then to send it up again And Reason it is that we should stand upon our Privilege seeing the Burden resteth upon us as the greatest Number per Francis Bacon 35 Eliz. 1592. The Lord Chancellor in Parliament offered the Commons a Writ to deliver their Burgess but they refused it Petyt 's Miscel Parl. 4. in Margin as being clear of Opinion That all their Commandments and Acts were to be done and executed by
their Serjeant without Writ It is the Law and Custom of Parliament 4 Inst 14 34. Rot. Parl. â—3 E. 3. n. Cot. Records f. 17. n. 6 9. That when any new Device is moved on the King's behalf in Parliament for his Aid or the like the Commons may answer That they tender the King's Estate and are ready to aid the same only in this Device they dare not agree without Conference with their Countries Whereby it appeareth That such Conference is warrantable by the Law and Custom of Parliament Mar. 19. Journal Dom. Com. 1677. It was conceived by the Commons that according to the antient Course and Method of Transactions between the two Houses when a Bill with Amendments is sent from either House to the other by Messengers of their own the House that sends them gives no Reasons of their Amendments but the House to whom it is sent if they find Cause to disagree do use to give Reasons for their Dissent to every particular Amendment every one of them is supposed to carry the Weight of its own Reason with it until it be objected against May 28. Ibid. 1678. A Paper of Reasons against a Bill viz. for wearing Woollen being printed and delivered at the Door was committed it being irregular for Reasons to be printed and published against a publick Bill before a Petition be exhibited to the House against the Bill It is to be observed 4 Inst 14. though one be chosen for one particular County or Borough yet when he is return'd and sits in Parliamment he serveth for the whole Realm for the End of his coming thither as in the Writ of his Election appeareth is general ad faciendum consentiendum c. If Offences done in Parliament might have been punished elsewhere 4 Inst 17. it shall be intended that at some Time it would have been put in Ure As Usage is a good Interpreter of Laws Coke Lit. 81. b. so Non-usage where there is no Example is a great Intendment that the Law will not bear it Not that an Act of Parliament by Non-user can be antiquated or lose his Force Coke Lit. 81. b. but that it may be expounded or declared how the Act is to be understood There is no Act of Parliament but must have the Consent of the Lords 4 Inst 25. the Commons and the Royal Assent of the King and whatsoever passeth in Parliament by this threefold Consent hath the Force of of an Act of Parliament The Difference between an Act of Parliament Ibid. and an Ordinance in Parliament is for that the Ordinance wanteth the threefold Consent and is ordained by one or two of them Some Acts of Parliament are introductory of a new Law Ibid. and some be declaratory of the ancient Law and some be of both kinds by addition of greater Penalties or the like Ibid. Some Acts are general and some private or particular All Acts of Parliament relate to the first Day of Parliament 33 H. 6. f. 18. a. 33 H. 8. Brook Parl 86 Relation 35. 4. Inst 28. Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. if it be not otherwise provided by the Act. The House of Commons is to many Purposes a distinct Court and therefore is not prorogued or adjourned by the Prorogation or Adjournment of the Lords House but the Speaker upon the Signification of the King's Pleasure by the Assent of the House of Commons doth say This Court doth Prorogue or Adjourn itself And then it is prorogued or adjourn and not before 39 Eliz. 1597. Towns Col. 101.102 Vide Sir Simon d'Ewe 's Jour 550. Col. 1 2. Nov. 5. Through a meer Mistake and Error of the Speaker and themselves the House conceived themselves to have been Adjourned by the Lord Keeper the first Day of this Parliament to this present Day When it is dissolved Ibid. the House of Commons are sent for up to the Higher House and there the Lord Keeper by the King's Commandment dissolveth the Parliament and not before A Parliament cannot be discontinued or dissolved but by Matter of Record Hutton 62. and that by the King alone The King at the Time of the Dissolution ought to be there in Person 4 Inst 28. or by Representation for as it cannot begin without the Presence of the King either in Person or by Representation so it cannot end or be dissolved without his Presence either in Person or by Representation Nihil enim tam Conveniens est naturali aequitati Bracton unumquodque dissolvi eo ligamine quo ligatum est By the Statute of 33 H. 8. c. 21. Ibid. it is declared by Act of Parliament That the King's Letters Patents under his Great Seal and signed with his Hand and declared and notified in his Absence to the Lords Spiritual and Temporal and Commons assembled in the House of Parliament is and ever was as good Strength and Force as if the King's Person had been there personally present and had assented openly and publickly to the same In the Lords House the Lords give their Voices from the puisne Lord seriatim 4 Inst 34.35 by the Word of Content or Not Content The Commons give their Voices upon the Question by Yea or No. Every Lord Spiritual and Temporal 4 Inst 43. Crompton 4. b. and every Knight Citizen and Burgess shall upon Summons come to the Parliament except he can reasonably and honestly excuse himself or else he shall be amerced c. that is respectively a Lord by the Lords and one of the Commons by the Commons By the Statute of 6 Hen. 8. c. 16. no Knight Ibid. Crompton 4. b. Citizen or Burgess of the House of Commons shall depart from the Parliament without Licence of the Speaker and Commons the same to be entered of Record in the Book of the Parliament upon Pain to lose their Wages Sickness is no Cause to remove any Knight 4 Inst 8. Citizen or Burgess of the House of Commons 18 Eliz. 1575. Sir Simon d'Ewe 's Jour 244. Col. 2. Resolved by the House That any Person being a Member of the same and being either in Service of Ambassage or else in Execution or visited with Sickness shall not in any Ways be amoved from their Place in this House nor any other to be during such Time of Service Execution or Sickness elected 31 Eliz. 1588. Id. 439. It was assented to by the whole House That none after the House is set do depart before the rising of the same House unless he do first ask Leave of Mr. Speaker on pain of paying Six Pence to the Vse of the Poor If a Lord depart from Parliament without Licence 4 Inst 44. it is an Offence done out of the Parliament and is finable by the Lords And so it is of a Member of the House of Commons he may be fined by the House of Commons It doth not belong to the Judges to judge of any Law Custom 4 Inst 50. Rot. Parl. 31 H. 6. n. 27. or Priviledge of Parliament Cardinal Wolsey
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
House to the Lord Chancellor for awarding Writs of Supersedeas 3 Martii Ibid. 18 Jac. 1. Upon a Report from the Committee appointed to consider of a Way of staying Trials against Members of the House that by several Precedents the Custom appeared to be in such Cases That on Motions and Orders in the House Letters were written to the Justices of Assize for stay of Trials against Members of the House which Letters were entred in the Journal-Book and that it belongeth to the Clerk to write the the same It was thereupon Resolved That the former Course of writing Letters to Justices of Assize should be held according to former Precedents 10 Junii 1607. Sir Robert Johnson Id. 95. a Member of this House moved for a Letter to stay a Trial against him in the Exchequer Which was granted as appeareth by the Entry on the 13th Day when a Petition of Sir Robert Brett was read against that Privilege The Privilege formerly granted was affirmed upon this Reason That no Man should have any Thing to withdraw him from his Service in the House The like 14 Feb. 18 Jac. 1. The Privilege of the House is so much insisted on that it hath been a Question Ibid. Whether any Member of the House could consent that himself might be sued during the Session because the Privilege is not so much the Person's as the House's And therefore when any Person hath been brought to the Bar for any Offence of this Nature the Speaker hath usually charged the Person in the Name of the whole House as a Breach of the Privilege of the House 3 Junii Ibid. 1607. Sir Thomas Holcroft a Member of the House had occasion to sue at Law and was sued with which he was content and desired the Leave of the House There was a Question Whether the House should give Leave for a Breach of Privilege and it was resolved The House might give Leave 7 Maii Id. 96. 1607. Sir Thomas Bigg and Sir Thomas Love being returned upon an Attaint in the King's Bench it being moved That in this Case they ought to have Privilege it was so ordered and the Serjeant sent with his Mace to deliver the Pleasure of the House to the Secondary the Court sitting 22 Nov. 1597. Ibid. Vide Sir Simon d'Ewe's Jour 560. Col. 2. Sir John Tracey a Member of this House being at the Common Pleas Bar to be put upon a Jury the Serjeant at Arms was presently sent with his Mace to fetch him thence to attend his Service in the House April Scobel 96. 12 Jac. 1. Sir William Bamp-field was committed by the Lord Chancellor for a Contempt after the Writ of Summons but before the Election Ordered upon the Question That he shall have his Privilege by Writ of Habeas Corpus 1 Jac. 1 Sess 2. Ibid. Sir John Peyton returned Knight for Cambridge the last Session and since chosen Sheriff Resolved That he shall attend his Service here 28 Martii 1542. Herbert's Hen. 8. 539. During this Session of Parliament some Wrong was offered to their ancient Privileges a Burgess of theirs being arrested Whereof the King understanding not only gave Way to their releasing him but Punishment of the Offenders Insomuch that the Sheriffs of London were committed to the Tower and one Delinquent to a Place called Little Ease and others to Newgate 2 Martii 1592. Scobel 112 113. Vide Moor. fo 340. n. 461. Fitzherbert's Case Vide Sir Simon d'Ewe's Jour 479 480 490 Col. 2. Upon a Report from the Committee of Privileges That one Mr. Fitzherbet was returned a Burgess and excepted against because he was alledged to be Outlaw'd and detained upon such Outlawry the House ordered That Mr. Speaker should move the Lord Keeper for an Habeas Corpus cùm Causà to bring up the Body and the Cause of Mr. Fitzherbert But the Lord Keeper returned That in regard of the ancient Liberties and Privileges of this House the Serjeant at Arms be sent by Order of this House for Mr. Fitzherbert at his own Charge by Reason whereof he may be brought without Peril of being further arrested by the Way which was approved of 1 Jac. 1. Scobel 104 105 106 107. Vid. Petyt's Miscel Parl. 222 123 124 125 The first Day of sitting Complaint was made That Sir Thomas Shirley chosen a Member of the House was arrested four Days before the Sitting of this Parliament a Warrant issued to the Clerk of the Crown for a Habeas Corpus to bring him to the House being then a Prisoner in the Fleet and the Serjeant and his Yeoman were sent for in Custody who being brought to the Bar and confessing their Fault were remitted for that Time 17 April Upon hearing Council in the House at the Bar for Sir Thomas Shirley and the Warden of the Fleet it was ordered That Simson at whose Suit and the Serjeant by whom the Arrest was made should be committed to the Tower 4 Maii A Habeas Corpus was awarded to the Warden of the Fleet to bring Sir Thomas Shirley to the House The Warden deny'd to execute it For which the 7th of May following he was sent for by the Serjeant and brought to the Bar who denying to bring his Prisoner a new Writ of Habeas Corpus was awarded and the Warden was committed to the Serjeant with this Order That if that Writ were not executed that then he should be delivered over to the Lieutenant of the Tower as the House's Prisoner 8 Maii The Serjeant was sent with his Mace to the Fleet the House sitting to require the Body of Sir Thomas Shirley But the Serjeant being deny'd a Warrant was made to the Serjeant to deliver the Warden of the Fleet to the Lieutenant of the Tower to be kept close Prisoner 11 Maii The Warden was again sent for and brought to the Bar and refusing to deliver up his Prisoner he was committed to the Place called the Dungeon or Little Ease in the Tower 14 Maii A new Warrant was ordered for a new Writ of Habeas Corpus and that the Serjeant should go with the Writ that the Warrant should be brought to the Door of the Fleet by the Lieutenant himself and there the Writ to be delivered to him and the Commandment of the House to be made known to him by the Serjeant for the executing of it that in the mean Time the Warden to be presently committed to the Dungeon and after to be returned thither again 18 Maii The Warden did deliver Sir Thomas Shirley and so was not put into the Dungeon 19 Maii He attending at the Door was brought into the Bar where upon his Knees confessing his Error and Presumption and professing he was unfeignedly sorry he had so offended this Honourable House Upon that Submission by Direction of the House the Speaker pronounced his Pardon and Discharge paying ordinary Fees to the Clerk and to the Serjeant Mr. Belgrave Sir Simon d'Ewe's Jour 688. Col. 1. being a Member of the House of Commons had
an Information exhibited against him in the Star-Chamber by the Earl of Huntington And Order was entered as the Act of that House 43 Eliz. 601. That he ought not to be molested in that Manner 10 Feb. 4 Car. 1. Rush Col. 653. Vid. Petyt 's Miscel Parl. p. 107. Whilst the House was in Debate the Warehouse of Mr. Rolls Merchant and Member of the House then sitting in Parliament was locked up by a Pursuivant and himself called from the Committee and served with a Subpoena This gave Occasion of smart Debates in the House Id. 654. After which the Attorney General writ a Letter That the serving a Subpoena was a Mistake and prayed a favourable Interpretation Resolved That Mr. Rolls Rosh Col. 659. a Member of the House ought to have Privilege of Person and Goods 16 Feb. 5. Memorials of the Method of Proceedings in Parliament 97. Vid. Sir Simon d'Ewe's Jour 85. Col. 1. Eliz. Robert Parker Servant to Sir William Woodhouse Knight for Norfolk being attached in London at the Suit of one Baker in Trespass had a Warrant of Privilege notwithstanding Judgment given against him for four hundred Marks 20 Febr. 18 Eliz. 1575. Ibid. Vide Sir Simon d'Ewe's Jour 251. Col. 1. Upon the Question and also upon Division of the House Edward Smaley Servant to Arthur Hall Esq one of the Burgesses for Grantham being arrested upon an Execution had Privilege 16 Dec. 44 Eliz. Anthony Curwen Ibid. Vid. Sir Simon d'Ewe's Jour 680. Col. 1. Servant to William Huddleston Esq one of the Knights of Cumberland being arrested upon a Capias ad Satisfaciendum out of the Common Pleas for six Pounds Debt and forty Shillings Damages and detained in Execution a Supersedeas was awarded and he was delivered And the House awarded the Officer that arrested him should be discharged Towns Col. 326. Vid. Sir Simon d'Ewe's Jour 680. Col. 1 686. Col. 1. paying his Fees and that Matthews should pay them and also his own Fees and remain three Days in the Serjeant's Custody for procuring the Arrest 11 Maii 19 Jac. 1. Memorials c. p. 98. The Under-Sheriff of Middlesex was called to the Bar for causing Alexander Melling Servant to the Chancellor of the Dutchy to be arrested He denied he knew him to be his Servant Mr. Speaker let him know the House had ordered him to have Privilege and therefore ordereth the Under-Sheriff to discharge him 1 Jac. 1. Sess 2. Ibid. Sir Edward Sandys moveth a Breach of Privilege by Sir Robert Leigh a Justice of the Peace for committing his Coach-Man to Newgate Sir Robert Leigh was sent for by the Serjeant and an Habeas Corpus for the Prisoner Sir Robert Leigh being brought to the Bar acknowledged his Fault and was discharged and so was the Prisoner 3 Martii Ibid. 1606. Valentine Syre Servant and Bag-Bearer to the Clerk of the Commons House being arrested upon an Execution was by Order and Judgment of the House enlarged 7 Sept. 1601. Id. 99. Vid. Towns Col. 196 206 210 Vide Sir Simon d'Ewe's Jour 629. Col. 1. Woodal Servant of William Cook Esq a Member of the House being arrested and in Prison in Newgate the Serjeant at Arms was presently sent to Newgate to bring him to the House sedente Curiâ And being brought to the Bar with his Keeper was discharged from his said Keeper and from his Imprisonment 1 Julii Memorials 99. 1607. John Pasmore the Marshal's Man being sent for and brought to the Bar for arresting John Jessop Waterman Servant to Sir Henry Nevil a Member of the House He denied that he knew he was Sir Henry's Servant until afterward notwithstanding he took an Assumpsit from him to answer the Action The House thought fit to commit him to the Serjeant till the House's Pleasure were further known and till he had discharged the Assumpsit and paid the Fees 17 Junii 1609. Ibid. Upon a Report from the Committee for Privileges That a menial Servant of Sir Robert Wroth was arrested eight Days before this Session the Serjeant was sent for the Prisoner and the Serjeant that made the Arrest one King who followed it and Fisher at whose Suit he was arrested 4 Junii 19 Jac. 1. Johnson Id. 100. a Servant to Sir James Whitlock a Member of the Commons House was arrested upon an Execution by Moor and Lock who being told That Sir James Whitlock was a Parliament Man Fulk one of the Prosecutors said He had known greater Men's Men than Sir James Whitlock 's taken from their Masters Heels in Parliament Time This appearing Lock and Moor were called in to the Bar and by the Judgment of the House were sentenced First That at the Bar they should ask Forgiveness the of House and of Sir James Whitlock on their Knees Petyt 's Miscel Parl. 118. Secondly That they should both ride upon one Horse bare-back'd Back to Back from Westminster to the Exchange with Papers on their Breasts and this Inscription For arresting a Servant of a Member of the Commons House of Parliament And this to be presently done sedente Curiâ Which Judgment was pronounced by Mr. Speaker against them at the Bar upon their Knees 28 Apr. 22 Jac. 1. Memorials 100. A Warrant was ordered to be issued by the Speaker for a Writ of Privilege to bring up Andrew Bates Servant to Mr. Richard Godfrey of the House in Execution with the Sheriff of Kent at the Suit of one Hunt This Privilege doth take Place by Force of the Election and that before the Return be made as appears in the Case following 19 Nov. 1601. Id. 107 108. Vide Sir Simon d'Ewe's Jour 642. Col. 2. 643. Col. 1. Vid. Petyt Miscel Parl. 119. Upon Information to the House that one Roger Boston Servant to Lanckton Baron of Walton who upon credible Report of divers Members of the House was affirm'd to be chosen a Burgess for the Borrough of Newton in Lancashire but not yet return'd by the Clerk of the Crown had been during that Session of Parliament arrested in London at the Suit of one Muscle the said Muscle together with the Officer that made the Arrest were sent for by the Serjeant and brought to the Bar and there charged by Mr. Speaker in the Name of the whole House with their Offence herein And having been heard Boston was ordered to have Privilege and to be discharged of his Arrest and Imprisonment and the Offenders for three Days committed to the Serjeant and ordered to pay such Charges to Boston as the Speaker shall set down and their Fees 6 Martii 1586. Memorials p. 108 109. Sir Simon d'Ewe's Jour 410. Col. 1.414 Col. 2. This Day William White brought to the Bar for arresting Mr. Martin a Member of the House made Answer That the Arrest was made above fourteen Days before the Beginning of the Parliament The House thereupon appointed a Committee to search the Precedents And March 11. the Committee made their Report of Mr Martin a Member of this House arrested upon mean
Process by White above twenty Days before the Beginning of this Parliament holden by Prorogation mistaken for Adjournment and in respect that the House was divided about it in Opinion Mr. Speaker with the Consent of the House the sooner to grow to some Certainty of the Judgment of the House in this Cause moved these Question to the House viz. First Whether they would limit a Time certain or a reasonable Time to any Member of the House for his Privilege The House answered a Convenient Time Secondly Whether Mr. Martin was arrested within this reasonable Time The House answered Yea. Thirdly If White should be punished for arresting Martin The House answered No. Because the Arrest was twenty Days before the Beginning of the Parliament and unknown to him what would be taken for reasonable Time But the principal Cause why Mr Martin had his Privilege was for that White the last Session mistaken for Meeting of Parliament arrested Mr. Martin and then knowing him to be returned a Burgess for this Honse discharged his Arrest And then afterwards Mr. Martin again returning out of his Country to London to serve in this House Mr. White did again arrest him and therefore this House took in evil Part against him his second Arrest and thereupon judged that Martin should be discharged of his second Arrest out of the Fleet by the said Mr. White 12 Martii Id. 102. 1606. Complaint was made by Mr. James a Burgess of Parliament That his Horse standing at his Inn was taken by the Post-Master's Servant Both the Post-Master and his Servant were sent for and brought to the Bar. Moreton the Post-Master appearing to be ignorant of what his Servant had done and disavowing it was by Order of the House discharged But upon the Testimony of a Witness at the Bar that he told the Servant when he took the Horse that a Member of Parliament was Owner of it the Servant was committed In Dec. 1606. Thomas Finch Memorials p. 101 102. a Servant to Sir Nicholas Sandys one of the Burgesses for Quinborough was arrested during the Adjournment which being conceived to be a great Contempt to the Privilege of the House an Habeas Corpus was awarded to bring him to the House and he was accordingly brought and also one Knight who procured the Arrest and Harrison the Yeoman The Excuse was That Finch was an Attorney at Law but it being avowed by Sir Nicholas Sandys That Finch lay in his House solicited his Causes and received Wages from him and it being insisted on That all menial and necessary Servants are to be privileged and Instance given of a Precedent of the Baron of Walton's Solicitor and Huddleston's Solicitor in the Time of Queen Elizabeth Upon the Question Finch was privileged and delivered according to former Precedents During the Adjournment Ibid. 102. a Suit was prosecuted in the Court of Wards against Nicholas Pots Esq and Francis Wethered Gent. Committees of a Ward which concerning Mr. Nicholas Davys Servant to the then Speaker as Assignee of the Ward The Speaker writ a Letter to the Court to make known That he was one of his Clerks and nearest Servants and that the Privilege was now as warrantable as in the Time of sitting and prayed the Court to take Notice of it During another Adjournment in March following Id. 103. the Speaker warranted by the general Order at the Desire of Sir Edmund Ludlow who was summoned to attend the Execution of a Commission out of the Chancery writ a Letter to the Commissioners to excuse his Attendance and that he should not be prejudiced by his Absence In May 1607. Ibid. during an Adjournment the Speaker directed a Letter to the Lord President and Council at York to stay Proceedings in a Suit there against Talbot Bowes a Member of the House 29 Feb. 1575. Id. 113. One Williams for assaulting a Burgess of this House was upon Complaint sent for by the Serjeant and brought to the Bar and committed to the Serjeant's Ward 23 April Ibid. 1 Mar. One Monington for striking William Johnson a Burgess was sent for and confessing it was committed to the Tower 28 Nov. 1601. Ibid. Towns Col. 259. Vide Sir Simon d'Ewe 's Jour 658. Col. 1. Complaint being made by Mr. Fleetwood a Member of the House That one Holland a Scrivener and one Brook his Servant had evil intreated and beaten the Servant of the said Mr. Fleetwood in his Presence they were both sent for by the Serjeant and brought to the Bar and for the said Offence committed for five Days to the Serjeant And that they should pay double Fees 12 Feb. 18 Jac. 1. Mr. Lovel Memorials 114 a Member of the House informed That one Darryel threatened his Person that for a Speech spoken by him in the House he should be sent to the Tower during the Parliament or presently after Darryel was sent for by the Serjeant to answer it to the House and upon Testimony of it he was committed to the Serjeant till Thursday following and then to acknowledge his Fault or be committed to the Tower 16 Jun. 1604. Complaint being made of one Thomas Rogers a Currier dwelling in Coleman-Street for abusing Sir John Savill in slanderous and unseemly Terms upon his Proceedings at a Committee in the Bill touching Tanners c. he was sent for by the Serjeant at Arms to the Bar to answer his Offence 1 Car. 1. 4 Inst 48. The Sheriff for the County of Buckingham was chosen Knight for the County of Norfolk and returned into the Chancery and having a Subpoena served upon him at the Suit of the Lady C. pendente Parliamento upon Motion he had the Privilege of Parliament allowed to him by the Judgment of the whole House of Commons 43 Eliz. 1601. Towns Co. 195. Vide Sir Simon d'Ewe 's Jour 629. Col. 1. This Day a Page was brought to the Bar whom Sir Francis Hastings had caused to be committed for that as he went down the Stairs the Page offer'd to throng him But upon is Hastings his Intreaty speaking very earnestly for him and upon the Page's Submission upon his Knees at the Bar he was discharged 44 Eliz. 1601. Towns Col. 229. Vid. Sir Simon d'Ewe 's Jour 643 Col. 2. Mr. William Morris Burgess for Beaumaris coming on his Way to London his Man was arrested at Shewsbury Ordered That the Bailiff and he that procured the Arrest and the Serjeant be sent for 44 Eliz. 1601. Towns Col. 225 226. The Solicitor of one Langton a Burgess for Newton in Lancashire was arrested at the Suit of one Musket a Taylor and committed to the Compter Agreed by the House That both Musket and the Serjeant should pay the Solicitor's Costs and Damages and be imprisoned three Days in the Serjeant's Custody and to pay the Serjeant attending this House his Fees The Parliament shall not give Privilege to any Member contra morem Parliamentarium Rush Col. 663. to exceed the Bounds and Limits of his Place and Duty And all
of 7 H. 4. which prescribes the Manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders and that the Indenture shall be the Return of the Sheriff It was also said That the Precedents do warrant this Judgment viz. 1. One Precedent of 39 H. 6. where a Person outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and at that Time one Gargrave who was a Man learned in the Law was Speaker and of the Queen's Council 2. Another was the Case of one Fludd in the 23d of the Queen who being outlawed was adjudged That he should be privileged by Parliament and at that Time the Lord Chief Justice Popham was Speaker And 3. In the 35th of Elizabeth there were three Precedents scil one of Fitz-Herbert another of one Killegrew being outlawed in fifty two Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the upper-Upper-House Note Whether a Person outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed That the Pardon without a Scire facias did not help him but that he was outlawed to that Purpose as if no Pardon had been granted And upon this the Lords sent to the Lower-House desiring a Conference with them concerning this Matter which Conference the Lower-House after some Deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like Manner they did 27 Queen Eliz. upon a Bill that came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and Purveyors and also they sent to the King to inform him of it But before their Messengers came to the King two of the Privy Council scilicet Sir John Stanhope and Sir John Herbert were sent to the King by the lower-Lower-House to inform him that they had heard that his Grace was displeased with the House for their Sentence given for Sir Francis Goodwyn as well as in the Matter of the Sentence which was as they heard said to be against Law as also for the Manner of their Proceedings being done hastily without Calling to it either Sir John Fortescue or his Council or without making his Grace acquainted with it And therefore they desired his Grace to understand the Truth of this Matter and also told him That they were ready with his good Leave with their Speaker to attend his Majesty to give him Satisfaction about their Proceedings But the King told them they came too late and that it ought to have been done sooner calling the House Rash and Inconsiderate But yet notwithstanding he was content to hear their Speaker in the Morning at Eight of the Clock Upon this Message Committees were chosen to consider of the Things and Matters aforesaid which should be delivered to the King in Satisfaction of the Sentence given by the House which afterwards were considered of and digested by the Speaker and Committees in three Points viz. 1. In the Reasons and Motives of their Resolutions 2. In the Precedents which were those I before have reported 3. And in Matters of Law Which were those Matters of Law also before reported by me with another Addition That in the Time of Henry the Sixth the Speaker of the Parliament was arrested in Execution at the Suit of the Duke of York and the Question being put to the Judges at that Time See Bohun's Col. p. 277. Whether the Speaker ought to have his Privilege it was said by them That they were Judges of the Law and not Judges of Parliament The Reasons and Motives were the free Election of the County the Request of one of the House the double Return of the Sheriff with a Commemoration of the Length of the Time since the Outlawries and with that the Payment of the Debts To this Report the King answered That he now ought to change his Tune which he used in his first Oration scilicet Thanksgiving to Grief and Reproof But he said That it was as necessary they should be reproved as congratulated and therefore he cited a parcel of Scriptures wherein God had so done with his People Israel nay with King David the People whom he tendered as the Apple of his Eye and David who was a Man after his own Heart He said It seems antiently to be a Privy Counsellor was incompatible with being a Member of Parliament or Publick Counsellor That since Sir Francis Goodwyn was received by the House upon Reasons and Motives inducing the House thereunto so the King upon Reason too took Consideration of Sir John Fortescue being one of the Council an ancient Counsellor a Counsellor not chosen by the King but by his Predecessors and so he found him and therefore he endeavoured to grace him being the only Man of them that had been disgraced the King protesting that he would not for any Thing in the World offer unjustly any Disgrace to any Man in the Nation Besides he did not proceed rashly as they had proceeded but upon Deliberation with double Advice as well with that of his Council as with that of his Judges And in his answering the Precedents Quere If the King himself was not here too over weening he said That those were his own proper Records and to use them against himself was over-great Weenings But in Precedents he said that they ought to respect Times and Persons and therefore said That Henry the Sixth's Time was troublesome he himself Weak and Impotent And as for the other Precedents they were in the Time of a Woman which Sex was not capable of Mature Deliberation and so he said where Infants are Kings whom he called Minors For the Law Part he referred to the Answer of his Judges who by the Lord Chief Justice gave these Resolutions They all unanimously agreeing in them 1. That the King alone and not the Parliament House had to do with the Returns of the Members of Parliament for from him the Writs issued and to him the Sheriff is commanded to make his Returns but when a Man is returned and sworn the Parliament-House hath to do with him and the Sheriff ought to Return the Outlawry if he knew it before his Return 2. They resolved clearly Thatan outlawed Person cannot by the Law be a Member of the Parliament-House but for that Cause
the King might refuse the Return of him and for that Cause he was removable out of the House And therefore the Lord Chief Justice said That in the 35th of Henry the Sixth it was so adjudged in Parliament which answers the Precedents vouched by the Commons of that Time And also he said That in the first Year of Henry the Seventh it was adjudged in Parliament That Persons outlawed or attainted could not sit in Parliament without Restitution by Act of Parliament And he said That though the Books do not warrant his Saying yet the Parliament Roll which he had seen does warrant it which any Man might see 3. They resolved at the Instance of the King himself That the Party could not be discharged from the Outlawry without a Scire Facias sued against the Party Creditor Plantiff in Debt and Justice Windam for that Purpose recanting his former Opinion said That he upon perusing of his Books and by Reasons of the Law was of Opinion with his Companions 4. As for the Statute of the 31st of the Queen concerning Proclamation to be made in the County c. they all resolved as before Times it had been resolved That no Outlawry by that Statute was void until a Judgment declaring That there was no Proclamation issued forth to the County where the Party was Resiant at the Time of the awarding of the Exigent 5. As for the Statute of 7 Hen. 4. which enacts That the Indenture shall be only the Return of the Sheriff the Judges said That was true that such was the Statute and that that was his Return for so much but that Statute doth not restrain the Sheriff from returning any other Thing material which disables the Parties chosen 6. It was held That the Indorsement of the Writ comprehending the Matter of the Outlawry was material and not a Nugation 7. And lastly they resolved That by the Return of the Sheriff it apeared that Sir Francis Goodwyn was the same Person who was outlawed 31 Eliz. by the Name of Francis Goodwyn Esquire and 39 Eliz. by the Name of Francis Goodwyn Gentleman and that by the Words of the Return scilicet Idem Franciscus Goodwyn Miles Vtlagatus existit c. And they also agreed That no Person outlawed ought to have his Privilege of the Parliament-House and that all the Precedents vouched by the Commons were after the Parties were Members of the House and not before they were returned But notwithstanding these 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 Council 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 Precedents 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 meddled with the Sheriff's Return of Members of Parliament being but one half of the Body the Lords being one and the principal Part of the Parliament's Body Note This Resolution was writen 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 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 meddled 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 altered 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 Use 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 Precedents also do warrant this intermeddling 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 Chancellor 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 Chancellor hath no Power to award a second Writ nor to meddle with the Return of it and divers other Precedents 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 Thirty fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parliament 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 Privileges Customs Orders and Returns of their House they were an entire
is chosen Co. 12.115 Vid. Towns 175 Vid. Sir S. d'Ewe's Jour passim Elsyng 153 Vid. Town 175. Vide Sir S. d'Ewe's Jeur. passim he in his Place where he first shall sit down shall disable himself and shall pray That they would proceed to a new Election When it appeareth who is chosen after a good Pawse he standeth up and sheweth what Abilities are required in a Speaker and that there are divers among them well furnish'd with such Qualities c. disableth himself and prayeth a new Choice to be made which is commonly answered with a full Consent of Voices upon his Name If the House generally give a Testimony of their Approbation Elsyng 153 4 Inst 8. Vid. Town 175. Vide Sir Simon d'Ewe's Jour passim two of the Members which for the most Part ware of the Council or chief Officers of the Court going to the Gentleman named and agreed to be Speaker take him from his Place and lead him unto the Chair Elsying says take him by the Arms and lead him to the Chair where being set they return to their Places After a while he riseth and uncover'd Elsyng 153 with humble Thanks for their good Opinion of him promiseth his willing Endeavours to do them Service After he is put into the Chair Co 12.115.4 Inst 8. then he shall pray them that with their Favors he may disable himself to the King that so their Expectations may not be deceived See Bohun ut Supra Then some and commonly he that first spake puts them in mind of the Day to present him c. Elsyng 153. Vid. Town 175. Sir Simon d'Ewes Jour passim So it was done by Sir William Knowls the Controller in the 43 Eliz. And the next Day Co. 12.115 Rush Coll. 480. Smyth's Common-wealth 80. or 2 or 3 Days after the Commons shall present the Speaker in the Upper House to the King where he shall disable himself again to the King and in most humble manner shall intreat the King to command them to choose a more sufficient Man Vide ante 265. aliter At the Day appointed Elsyng 156 Vid. Towns 175. his Majesty sitting on his Royal Throne and the Lords all in their Robes the Commons are called in who being come the Speaker is brought between two of them with low Obeysance to the Bar and so presented at the Bar to his Majesty The Speaker having made his Excuse the Lord Chancellor confers with the King and then telleth him That his Majesty doth approve the Commons Choice and will not allow of his Excuse Then the Speaker proceeds to his Speech But anciently he made first a Protestation as you may read in Elsyng 159 160. After he is allowed by the King Co. 12.115 Vide Rush Coll. 117. Vi. Smyths Common-wealth 80. Elsyng 164 then he shall make an Oration and in the Conclusion shall pray the four usual Petitions The Speaker's Speech is what it pleaseth himself having no Direction at all from the Commons touching the same making Petition to the King on behalf of the Commons some in general Words for all their ancient Priviledges and some in particular The Protestation of the Speaker consists of three Parts 4 Inst 8. Vi. Towns Coll. 4. 54 Rush Coll. 424. First That the Commons in this Parliament may have free Speech Vide Elsyng 164. as by Right and of Custom they have used and all their ancient and just Priviledges and Liberties allow'd to them Secondly That in any Thing he shall deliver in the Name of the Commons if he shall commit any Error no Fault may be arrected to the Commons and that he may resort again to the Commons for declaration of their true Intent and that his Error may be pardoned Thirdly That as often as necessity for his Majesties Service and the Good of the Commonwealth shall require he may by Direction of the House of Commons have Access to his Royal Person Some add a Fourth Modus tenend Parl. 35. That they may have Power to Correct any of their own Members that are Offenders And some make a Fifth Id 62. That the Members their Servants Chattels and Goods necessary may be free from all Arrests Tho' the Speaker does upon his being approv'd of by the King make it his humble Petition to have Liberty of Speech allow'd the Commons Sir R. Atkin's Argument c. 33. from whence Dr. Heylin and Sir Robert Filmer and others infer That the Commons injoy that Liberty by the King's Grace and Favour yet they are clearly answered by the words that accompany that humble Petition he prays That they may be allowed that Freedom as of Right and Custom they have used and all their ancient and just Priviledges and Liberties So that this from the Speaker is a Petition of Right The Speaker having ended his Oration Eisyng 165 the Lord Chancellor confers again with the King and makes Answer thereunto in his Majesties Name granting his Requests c. That humble and modest way of the Peoples addressing to their Sovereign Sir R. Atkin's Argument 33. either for the making Laws which has been very ancient or for granting Priviledges by the Speaker of the Commons shews great Reverence and becomes the Majesty of the Prince so to be addressed to but let it not be made an Argument that either the Laws thereupon made or the Priviledges so allow'd are precarious and merely of Favour or may be refused them of Right The Oration being answered by the Lord Chancellor Co. 12 115. 4 Inst 10. and his Petitions allow'd the Speaker and the Commons shall depart to the House of Commons where the Speaker in the Chair shall request the Commons That inasmuch as they have chosen him for their Mouth they would assist him and favourably accept his Proceedings which do proceed out of unfeign'd and sincere Heart to do them service The first Business in the House is ordinarily to read a Bill that was not pass'd in the last Parliament preceeding or some new Bill as in that of 10 Jac. 1. Scobel 5. Vide Sir Sir Simon d'Ewes Jour 43 44. But on that Day before that was done there was a Motion made for Priviledge of Sir Thomas Shirley who was chosen a Member to serve in that Parliament but detained by an Arrest Upon which a Habeas Corpus was awarded and the Serjeant that Arrested him and his Yeoman sent for and a Committee for Elections and Priviledges chosen See the Form and Manner of Electing Paul Foley Esq to be Speaker Bohun's Collection of Debates p. 350 to 354 after the Censure of Sir John Trevor for a High Crime and Misdemeanor in receiving a Gratuity or Bribe of 1000 Guineas of the City of London on passing the Orphans Bill CHAP. XIV Business of the Speaker THE Mace is not carried before the Speaker Eisyng 153 until his Return being presented to the King and allow'd of The speaker sits in a Chair placed somewhat high Modus tenend Parl. 36. Smith 's Common-wealth 84. to be seen