sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable 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 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 years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof 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 to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. 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 Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward 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 without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. 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 All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper 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 Vpper 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 Vpper 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 alway 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 ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them that this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. Rush Coll. 269. The House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc. Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the Puisne Lord seriatìm by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been anciently used and may still without Prejudice to the Honour of the House that the King 's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. It was resolved Towns Coll. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the Lower House to be preferr'd to the Vpper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the Lower House and from them to receive in that Place their Messages
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363. or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12 2 Nalson 381. 1641. An Order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27 28. and Sir Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
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 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 4 Inst 4 5. 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 c. It is declared by the Lords and Commons in full Parliament Id. 14. 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 Hakewel 94. doth ordinarily belong to the Reverend Judges and in Case of greatest Difficulty or Importance 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 Actions at Common Law are not determined in this High Court of Parliament Selden 's Judicature 2. yet Complaints have ever been received 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 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 Rich. 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. Anno 21 R. 2. The Commons Acensed the Arch-Bishop of Canterbury of Treason and the Temporal Lords judged him a Traytor and Banished him But if the 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 save that only of their Trial. 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 against his Body and the like And by this it appeareth what Persons are de Jure triable by the Lords in Parliament viz. their Peers only Judgments in Parliaments for Death have been strictly guided per Legem Terrae Id. 168. The Parliament hath three Powers Sir Rob. Atkyns Argument c. 36. a Legislative in Respect of which they are call'd the three Estates of the Realm a Judicial in respect of this it is call'd Magna Curia or the High Court of Parliament a Counselling Power hence it is call'd Commune Concilium Regni The Parliament gives Law to the Court of the King's Bench Id. 49. and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it shou'd receive Law from it and be subject to it The greater is not judged of the less All the Courts of Common Law judge only by the ordinary Rules of the Common Law Id. 50. but the Proceedings of Parliament are by quite another Rule The Matters in Parliament are to be discussed and determined by the Custom and Usage of Parliament and the Course of Parliament and neither by the Civil nor the Common Law used in other Courts The Judges of all the Courts of Common Law in Westminster are but Assistants Ibid. and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Resort Ibid. and this is generally affirm'd and held but it is not the last if what they do may yet again be examin'd and controlled Because the High Court of Parliament proceeds by a Law peculiar to that High Court Id. 52. which is call'd Lex Consuetudo Parliamenti and not by the Rules of the Common Law and consists in the Customs Usages and Course of Parliament no Inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament A Statute Arc. Parl. 85. or Act of Parliament shall not be proclaimed for the Parliament represents the Body of the whole Realm for there are Knights and Burgesses of every County and Town But otherwise where it is ordained by the Act that it shall be proclaimed A man Attainted of Felony Id. 100. or Treason shall not be restored in Blood without Parliament 28 Ed. 1. Petyt's Appendix to Miscel Parliament n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonorably agreed to include the Scots the Ambassadors at the ensuing Parliament were sharply rebuked and corrected not only by the King himself the Prelates and Nobles but by the Commons The Court of Parliament was the Sanctuary Turner's Case of Bankers 36. whether the distressed Subject in his Exigence fled for Shelter and Refuge and alway found it Into the Sacred Bosom of Parliaments it was Ibid. Vide Several Precedents and Records that they powred out their Sighs and Groans with constant Success and when in Cases of high Nature the Common Law was arrested and stopt in her Proceedings Parliaments evermore ran into their Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly sastned on the Exchequer The Right of the Crown of England Stat. Provis 25 Ed. 3. Rast Stat. 99. and the Law of the said Realm is such that upon the Mischiefs and Damages which happen to the Realm the King ought and is bound by his Oath of the Accord of his People in Parliament thereof to make Remedy c. To conclude this Chapter Le Parliament ad Absolute poiar en touts Cases come a faire Leys d'adjuger Matiers en Ley à trier vie del home à reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means à remedier en tiel Case ceo est le proper Court Et touts choses que ils font
or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons 3 Car. 1. 1626. Rash Coll. 365. Resolved upon the Question 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 imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer is a Breach of Priviledge 2 Nalson 380. Ever since the Conquest the Arch-Bishops Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter Vide Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per. totum and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hunt ut suprà per tot Vid. Grand Question concerning Bishops Right c. per totum Selden of Judicature c. p. 150. or other in Parliament the Arch-Bishops and Bishops depart the Higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial having first made Protestation saving their Right to be present in Parliament * Vid. there the Protestation of the Bishops for ever Id. 151. The Protestation I think intends That they could not be present by reason of the Common Law and by reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergy-men were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium the King assentire and the Lords only did judicare The King's Assent ought to be to Capital Judgments Id. 141. Vid. id 144 147 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments If a Peer be committed to Prison the Gentleman Vsher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10 Vid. 4 Inst 362. Rot. Parl. 3 H. 6. n. 10. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers Arcana Parl. 70. because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King Id. 71. The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment 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 Honor and are not charged but upon their Honors 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 lye 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. Statute 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. 98. he ought to appeear in his proper Person and not by Attorny unless he has a special Writ of Chancery CHAP. IV. Power of the House of Lords A Peer of the Realm being Indicted of Treason 4 Inst 23. or Felony 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 Many notable Judgments by the Lords Ibid. Vide Rush Coll. passim Vid. Nalson at the Prosecution of the Commons and in later Times Error serra sue in Parliament Vid. Crompton 18. b. Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take 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 Justitia have a Writ of Error directed to the Chief Justice of the
Vide Sir Simon d'Ewes Jour 212. for publishing and discovering the Conferences of the House and writing a Book to the dishonour of the House was upon due Examination secundùm Legem Consuetudinem Parliamenti adjudged by the House of Commons to be committed to the Tower for six Months fined at Five hundred Marks and expelled the House 23 Apr. 1 Mariae Ibid. Call'd Monington 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 punish'd by the House upon Complaint 29 Febr. 1575. Ibid. Vide Sir Simon d'Ewes Jour 251. Col. 2. 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 28 Nov. 1601. Ibid. 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. Id. 114. Jac. 1. Mr. Lovel a Member of the House informed That one Darryel threatned his Person that for a Speech spoken by him in the House he shou'd 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 to be committed to the Tower 16 Junij 1604. Ibid. Complaint being made of one Thomas Rogers a Currier dwelling in Coleman-street for abusing Sir John Savil 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 Sir William Aston Sheriff of London Rush Coll. 656. Vid. Petyt's Miscell Parl. 108. Acton's Case being Examined before the Committee concerning some Matters about the Customs and not giving that clear Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question was made in the House at the Time Whether the House had at any Time before committed a Sheriff of London to Prison To which Mr. Selden made Answer That he could not call to mind a Precedent of sending one Sheriff of London to Prison but he well remembred a Precedent of sending both the Sheriffs of London to the Tower and instanced the Case One Trussel being in Execution in one of the Compters in London Towns Coll. 20. Vide Sir Simon d'Ewes Jour 438. Col. 1. was Order'd to be brought before the Committee with his Keeper without Danger of an Escape in the Execution 4 Novemb. 1640. Scobel 16. Upon a Report from the Committee for Priviledges That several Indentures were returned for Burgesses for the Borough of Bossinny in the County of Cornwal the one by the Mayor of the Town the other promiscuously The Committee were of Opinion upon view of the bare Indenture That Sir Charles Harbord who was return'd by the Mayor was well return'd but the House declar'd he shou'd not sit till the Election were decided 44 Eliz. 1601. Towns Coll. 297. The Course hath been if the House hath been desirous to see any Record the Speaker shou'd send a Warrant to the Lord Keeper to grant a Certiorari to have the Record brought into the House Decemb. 1641. Ordered 2 Nalson 753. That Mr. Speaker do write his Letters to the Mayor of Berwick enjoyning him to require such Papists and suspected Persons as reside there or make their constant Repair thither forthwith to depart the Town and to tender the Oaths of Supremacy and Allegiance to such as shall refuse and to proceed against them according to Law and to require him that a Guard be kept at the several Gates and that the Arms of that Place be in readiness The like to the Mayor of Newcastle and of Hull The Commons upon Imprisonment of their Members Rush Coll. 358. and the Offence taken by the King resolved to proceed in no other Business till they were righted in their Liberties Dec. 1641. 2 Nalson 732. Mr. Long a Justice of the Peace sent to the Tower for setting a Guard without Consent of the Parliament A Knight 4 Inst 12. Citizen or Burgess of the House of Commons cannot by any Means make a Proxy because he is elected and trusted by Multitudes of People If the Commons accuse a Commoner of Misdemeanors Selden 's Jud. 101. in such a State of Liberty or Restraint as he is in when the Commons complain of him in such he is to answer Sir Francis Michel Seld. Jud. Ibid. and Sir John Bennet were both committed by the Commons before their Complaint to the Lords and so they answered as Prisoners but that in a sort may be call'd Judicium parium suorum If the Commons impeach any man they are in loco proprio Id. 124. and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof and the Judgment not to be given until the Commons demand it The Presence of the Commons is necessary at the Parties Answer Id. 158. and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons Presence in such Judgments may be this Both King and People are to be satisfied for the Death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court and how can it be said in full Parliament when the Commons one of the States are absent Tho' the Commons are not present when the Lords do consider of the Delinquents Answer Id. 159. and the Proofs and do determine of their Judgment yet at their Return to their own Assembly they consider among themselves if the Proceedings were legal and may come again and shew it and require a Re-hearing of the Cause as they did at the Judgment of the Duke of Clarence in 18 Ed. 3. In Judgment on Misdemeanors Id. 162. the Presence of the Commons is not necessary unless they Impeach a Delinquent prout 50 E. 3. and then they are present at all the Answers of those whom they Impeach and demanded Judgment When the Lords had determin'd one part of the Complaint of the Commons against William Ellis touching the wrong done to certain Scottish
Merchants the Commons pray'd a general Inquiry might be made of the Residue whereof they complained Ibid. which the Lords granted When the Lord Nevil answered Id. 163. the Commons required that one Richard Love might be examined to prove that which the said Lord deny'd and so departed but two of the Commons remained and heard the Examinations and told the Lords That the said Richard had related otherwise to the Commons the day before which the said Richard deny'd Then all the Commons came and justify'd it again and thereupon the said Richard Love confessed it and on their Demands was committed In the 10 Rich. 2. Ibid. when the Commons had Impeached the Lord Chancellor they were present at his Answer and so often reply'd and enforced his Oath against him and required him to be committed and so he was before Judgment If the Commons do only complain Ibid. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords Whether the Commons shall be present or not Issuing of Quo Warranto's out of the Court of King's Bench Nalson 588. Court of Exchequer or any Court against Boroughs that anciently or recently sent Burgesses to Parliament to shew 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 and Judges in such Quo Warranto's and Proceedings are punishable as in Parliament shall be thought consonant to Law and Justice 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 Atkyns'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 it self 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 after mature deliberation they answer'd It was not their part to judge of the Parliament which may judge of the Law The Reason Ibid. to judge of the Law signifies that they can judge whether a Law be good or not in order to approve it and to enact it or to repeal a Law In 1621. Ibid. the House of Commons made a Protestation against all Impeachments other than in the House for any thing there said or done It was said by Mr. Justice Crook Id. 58. Rush Coll. 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 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. Sir Simon d'Ewes Jour 347. Col. 2. Ordered 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 Eodem Anno Id. 367. Col. 1. 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 London 28 29 Eliz. 1586. Id. 397. Col. 1. Resolved by the whole Body of the House That the discussing and adjudging of Differences about Elections only belonged to the said House That tho' the Lord Chancellor and Judges were competent Judges in their proper Courts yet they were not in Parliament 31 Eliz. 1588. Id 451. Col. 1. Thomas Drury committed to the Serjeant's Custody brought to the Bar and discharged paying his Fees for speaking dishonourably of the Proceedings of the House 23 Eliz. 1580. Id. 283. Col. 1. A Member of the House stood Indicted of Felony Adjudged That he ought to remain of the House till he were Convicted for it may be any man's case who is guiltless to be Accused and thereupon Indicted of Felony or a like Crime 18 Eliz. 1575. Petyt 's Miscel Parl. 16 18 Edward Smalley was upon the Question adjudged by the House to be Guilty of Contempt and abusing the House by fraudulent Practise of procuring himself to be Arrested upon Execution of his own Assent and Intention to be discharged as well of his Imprisonment as of the said Execution And Matthew Kirtleton adjudged Guilty of Confederacy with the said Smalley Whereupon they were both ordered to be committed to the Tower And the said Smalley to remain there for a Month and after till he gave sufficient Assurance for payment of a hundred pounds to the Creditor and forty shillings for the Serjeant's Fees 4 Ed. 6. Criketoft Id. 96. for the confederating in the Escape of one Floud committed to the Tower and afterwards discharged paying his Fees 1 Jac. 1. Bryan Tash Id. 98. a Yeoman of his Majesties Guard for keeping the Door of the Lobby of the Vpper House against several Members of the House of Commons brought to the Bar of the House and upon his Submission and Confession of his Fault dismissed paying the ordinary Fees to the Clerk and Serjeant 20 Jac. 1. Dr. Harris Id. 104. for misbehaving himself in preaching and otherwise with respect to Election of Members of Parliament call'd to the Bar as a Delinquent and admonish'd to confess his Fault there and in the Country and in the Pulpit of his Parish Church 3 Car. 1. Mr. Burgess a Minister Id. 104 105. for abusing his Function in the Duty of Catechising c. sent for by a Messenger committed to the Tower and upon humble Submission deliver'd In the same Parliament Id. 105 106. Sir William Wray Mr. Langton Mr. John Trelawny and Mr. Edward Trelawny Deputy Lieutenants for Cornwal for assuming to themselves a Power to make Knights of the Shire defaming such as stood to be chosen sending for the Train'd Bands menacing the Country c.
he should be imprisoned during his Life 6. Not to approach within twelve miles of the Courts of the King or Prince not 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 and should be fined at 10000 l. 8. He was also disabled to hold or receive any Office under the King or for the Common-wealth 9. 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 unâ 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 Conference 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 Buckinghamshire 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 Invective 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 should be dismiss't 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 savouring of a Puritan and factious Spirit Exceptions were taken at the Words After he had explained himself he was ordered to 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 shou'd 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 the House at Words spoken by Mr. J. H. He was first heard to explain himself and then commanded to withdraw and was call'd to the Bar and suspended the House during that Session of Parliament 27 Maij 1641. Ibid. A Paper was brought in containing words spoken by Mr. Taylor a Member of the House concerning the Passing the Bill of Attainder of the Earl of Strafford who being heard to explain himself and then commanded to withdraw after some Debate in the House it was resolved That he shou'd be expell'd the House be made uncapable of ever being a Member of this House and shou'd forthwith be committed Prisoner to the Tower there to remain during the Pleasure of the House and to make an acknowledgment of his Offence both at the Bar and at Windsor publickly And he was call'd to the Bar and there kneeling Mr. Speaker pronounced the Sentence accordingly 13 Maij 12 Jac. 1. Id. 82. Complaint was made that some Indignities was offer'd to Sir R. Owen when he was in the Chair at the Committee about the Bill for the due Observation of the Sabbath Day by Sir W. H. who told him He was Partial and by Sir R. K. who took him by the hand and told him He would pull him out of the Chair that he should put no more Tricks upon the House Sir W. H. being present made an Acknowledgment of his Error which upon the Question was taken for a good Satisfaction Sir R. K. was ordered by the House to Acknowledge his Error at the Bar. 19 Jac. 1. Ibid. Some Speeches passing in the House privately between two of the Members and some Offence taken which seems was not intended to be given one of them in going down the Parliament-stairs struck the other who thereupon catch'd at a Sword in his Mans hand to strike with it Upon Complaint made of it to the House they were both order'd to attend the House being come he who gave the Blow was call'd in and standing not at the Bar but by the Bar was examin'd by Mr. Speaker confessed the giving the Blow insisted on the Provocation and withdrew The other was also call'd in to relate the Truth After he had made the Relation and was likewise withdrawn and Testimony given by a Member of the House who heard the words the House proceeded to Sentence against Mr. C. who struck the blow He being brought to the Bar there on his knees he received Judgment which was pronounced by the Speaker That he should be committed to the Tower during the Pleasure of the House 1626. Nalson's Introduction 61. Mr. Moor sent to the Tower for speaking out of Season Novemb. 1641. Ordered That Mr. Fitz-Williams Conisby shall be expell'd this House 2 Nalson 513. he being a Monopolist and that the Speaker issue out a Warrant to the Clerk of the Crown for a Writ for a new Election for a Member to serve for the County of Hertford in his Place Mr. Hugh
Member ought to give his Vote one way or other and the Speaker is to declare his Opinion whether the Yea's or the No's have it which is to stand as the Judgment of the House But if any Member before any new Motion made shall stand up and declare that he doth believe that the Yea's or the No's as the Case shall be have it contrary to the Speaker's Opinion then the Speaker is to give Direction for the House to divide declaring whether the Yea's or the No's are to go forth Upon the dividing of the House Id. 25. those are to go forth who are for varying from or against the constant Orders of the House as that a Question shall not be put or not be now put it being the Course of the House that after a Debate the same shou'd be determin'd by a Question or the like or against any positive Order made by the House or for the passing any new thing as reading a Petition or Bill and committing ingrossing or passing such Bills or the like Those that are for the new Bill if there be a Question of Voices shall go out of the House Id. 52. and those who are against the Bill Co 12.116 Sir Simon d'Ewes Jour 505. Col. 1 Vid. contra Scobel 43. and for the Common Law or any former Law shall sit still in the House for they are in Possession of the old Law That in 1604. those for the Bill sate and those against it went out So 7 Aug. 1641. 10 Dec. 1640. Memorials in Hakewel 25. Vide Sir S. d'Ewes Journ 505. It was declared for a constant Rule That those that give their Votes for Preservation of the Orders of the House shall stay in and those who give their Votes otherwise to the introducing any new Matter or for any Alteration shall go forth 24 Mart. 21 Jac. 25. Memorials ut supra The House being divided upon a Question about Election of Members it was over-ruled by the House that the Noe's shou'd go forth This is also the Course upon any Question to agree with a Report in Favour of the Opinion of a Committee Ibid. Upon dividing the House Id. 26. the Speaker is to nominate two of those that are in the Affirmative and two of the Negatives to count the House which four each of them having a Staff in his Hand are to count the number of the Persons who remain sitting in the House and then to stand within the Door two on the one side and two on the other and to count the Number of them who went forth as they come in While the House is thus divided Ibid. or dividing no Member may speak nor unless it be to go forth upon the Division remove out of his Place When the House is thus told those two of the Tellers Id. 27. who are of the number of those who have the major Votes standing on the right hand and the two other on the left hand at the Bar the rest being all set in their Places are to come from thence up to the Table together making the usual Obeysance to the House three times once at the Bar again in the middle of the House and again when they are come to the Table and that Person who stands on the right hand is to declare to the Speaker the number of the Yea's who sat or went out as the Case is and of the No's and then with like Reverence to depart into their Places after which Mr. Speaker is to report the same to the House If the Affirmative have the major Vote by the Judgment of the Speaker Ibid. or in case of Division upon the Division the Clerk is to enter the Vote Resolved If the Negatives then he is to enter it thus The Question being put setting down the words of the Question it pass't in the Negative Upon the Division Ibid. if the Members appear to be equal then the Speaker is to declare his Vote whether he be a Yea or a No which in this Case is the casting Voice but in other Cases the Speaker gives no Vote 1 Maij 1606. Ibid. Upon a Question whether a man saying Yea may afterward sit and change his Opinion a Precedent was remembred by the Speaker of Mr. Morris Attorney of the Wards in 39 Eliz. that in like case changed his Opinion If upon a Debate it be much controverted Id. 28. and much be said against the Question any Member may move that the Question may be first made whether that Question shall be put or whether it shall be now put which usually is admitted at the Instance of any Member especially if it be seconded and insisted on and if that Question being put it pass in the Affirmative then the main Question is to be put immediately and no man may speak any thing further to it either to add or alter But before the Question whether the Question shall be put any Person who hath not formerly spoken to the main Question hath liberty to speak for it or against it because else he shall be precluded from speaking at all to it If in a Debate there arise more Questions than one Ibid. and it be controverted which Question shou'd be first put the Question first moved and seconded is regularly to be first put unless it be laid aside by general Consent If the first Question be insisted onto be put and the major Part seem to be against it the Question is to be whether that Question shall be now put if that pass in the Negative then the other Question may be put if desired nevertheless any Person may speak to it again before it be put If in the Affirmative then it is to be put without any Addition or Alteration as before and after the Question is put if any Member move to have the other Question put every one hath leave to speak to it again as if it were a new Question If a Matter be received into Debate Id. 29. and a Question grow whether the House shall proceed in that Debate at this time and it fall out that the House be divided in such Case the No's are to go forth it being contrary to the course of the House that any Business shou'd be laid aside till it be determined by a Question If the Question be for an Adjournment of a Debate the Yea's are to go forth upon the same Reason After a Question is propounded Ibid. no man may speak more than once to the Matter but having spoken to the Matter when the Question comes to be put he may speak to the manner or words of the Question keeping himself to that only and not ravelling into the merits of it If a Question upon a Debate contain more Parts than one Ibid. and Members seem to be for one Part and not for the other it may be moved that the same may be divided into two or more Questions as
Dec. 2. 1640. the Debate about the Election of two Knights was divided into two Questions No Member in his Discourse in the House may mention the Name of any other Member then present Id. 30. Vide Smyth's Common-wealth 85. but to describe him by his Title or Addition as that Noble Lord that worthy Knight or by his Office as Judge Serjeant Gentleman of the long or short Robe or by his Place as the Gentleman near the Chair near the Bar on the other side or that Gentleman that spake last or last save one or the like During any Debate any Member Memorials ut supr 30. tho' he have spoken to the Matter may rise up and speak to the Orders of the House if they be transgressed in Case the Speaker do not but if the Speaker stand up he is first to be heard and when he stands up the other must sit down till the Speaker sit down But if any Person rise up to speak to the Orders of the House in the midst of a Debate Ibid. 31. he must keep within that Line and not fall into the Matter it self if he do he may be taken down by the Speaker or any other Member calling to the Orders of the House While a Member is speaking to a Debate or Question Id. 31. Vid. Towns Coll. 205. he is to be heard out and not taken down unless by Mr. Speaker as in some Cases he may or that he speak of such Matter as the House doth not think fit to admit A Matter upon Debate having been once finally determined by a Question Memorials in Hakewel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorny General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Goodwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass't the House it could not nor ought to be reversed by them and upon the Question it was resolv'd There shou'd be no Conserence 2 Apr. 1604. Ibid. A Vote having passed some days past That no Conference shou'd be admitted with the Lords the same Question was again moved but was carried in the Negative And it was then urged for a Rule That a Question having been once made and carried in the Affirmative or Negative cannot be questioned again but must stand as the Judgment of the House 4 Junij 1604. Id. 45. Agreed for a Rule If two stand up to speak to a Bill he that would speak against the Bill if it be known by Demand or otherwise is to be first heard 11 Nov. 1640. Id. 69. It is declared as a constant Order of the House That if a Witness be brought to the House the House sitting the Bar is to be down otherwise if the House be in a Committee In a Debate about an Election Id. 70. it was Resolved That the Party concern'd shall be heard to inform the House and then he is to go forth When any Complaint is made against a Member Id. 71. or Exceptions taken to any thing spoken by him after he hath been heard to explain himself if he desire or the House command it which is usually done by him standing in his Place if the House be not satisfied but fall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords Towns Coll. 311. upon a Conference as they were sitting at the Table and going to the upper end thereof spake When any Bills or Messages are brought from the lower House to be presented to the upper House Towns 95. Vide Sir S. d'Ewes Jour 585. the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the lower House and from them to receive in that Place their Messages or Bills But when any Answer is to be deliver'd by the Lord Keeper in the name and behalf of the House Ibid. to such Knights and Burgesses as come from the lower House the said Knights and Burgesses are to receive the same standing toward the lower end of the House and the Lord Keeper is to deliver the same with his Head covered and all the Lords are to keep their Places In the Answer of the Commons House of Parliament to K. James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorirls ut supra 33 34. the Objection being That they refuse Conference with the Lords The Answer is in these words Concerning our refusing Conference with the Lords there was none desired till after our Sentence passed and then we thought that in a matter private to our own House which by Rules of Order might not be by us revoked we might without any Imputation refuse to concur CHAP. XVI Passing of Bills 43 Eliz. 1601. Towns Coll. 209. WHile there were divers Disputes about a Bill Mr. Fleming the Queens 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 12.115 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 alway sent in Parchment fairly ingrossed Publick Bills are in due course to be preferred in reading and passing before private Ibid. Co. 12.116 and of Publick 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 Towns Coll. 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 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 All men of Law know Towns Coll. 238. that a Bill which is only expository to expound 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 by Order of the House from his said Keeper and from his Imprisonment 1 Julij 1607. Memorials 99. 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 deny'd 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 Houses Pleasure were further known and till he had discharged the Assumpsit and paid the Fees 17 Junij 1609. Ibid. Upon a Report from the Committee for Priviledges 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 follow'd it and Fisher at whose Suit he was arrested 4 Junij 19 Jac. 1. Id. 100. Johnson a Servant to Sir James Whitlock a Member of the Commons Housel 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 mens men than Sir James Whitlock taken from their Masters Heels in Parliament time This appearing Lock and Moor were call'd in to the Bar and by the Judgment of the House were sentenced First That at the Bar they shou'd ask Forgiveness of the House and of Sir James Whitlock Petyt 's Miscel Parliament 118. on their knees Secondly That they shou'd 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 order'd to be issued by the Speaker for a Writ of Priviledge 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 Priviledge 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 S. d'Ewes Jour 642. Col. 2. 643. Col. 1. Vid. Petyts Miscell 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 affirmed to be chosen a Burgess for the Borough 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 order'd to have Priviledge and to be discharged of his Arrest and Imprisonment and the Offenders for three days committed to the Serjeant and order'd to pay such Charges to Beston as the Speaker shall set down and their Fees 6 Martij 1586. Memorials p. 108 109. Sir Simon d'Ewes 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 Questions to the House viz. First Whether they would limit a time certain or a reasonable time to any Member of the House for his Priviledge The House answered a convenient time Secondly Whether Mr. Martin was arrested within this reasonable time The House answered Tea Thirdly If White should be punished for arresting Martin The House answer'd No because the arrest was twenty days before the beginning of the Parliament and unknown to him that would be taken for reasonable time But the principal cause why Martin had his Priviledge was for that White the last Session mistaken for Meeting of Parliament arrested Mr. Martin and then knowing him to return'd a Burgess for this House 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 Martij 1606 Complaint was made by Mr. James a Burgess of Parliament Id. 102. That his Horse standing at his Inn was taken by the Post-masters 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 Priviledge 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 avow'd 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 priviledged and instance given of a Precedent of the Baron of Waltons Solicitor and Huddleston's Solicitor in the time of Queen Elizabeth Upon the Question Finch was priviledged and deliver'd 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 concerned 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
the Rights and Priviledges of Parliament sit there any longer without a full Vindication of so high a Breach of Priviledge and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Selden 's Jud. p. 84. but upon a Complaint of the Commons APPENDIX The Report of a Case happening in Parliament in the first year of K. James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up The said Sir John Fortescue complained to the King and Council Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him that he was Outlawed in Debt which was true scilicet He was Outlawed for 60 l. 31th of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for 16 l. which Debt was also paid and that notwithstanding the King by the Advice of his Councel at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites That because the said Sir Francis was Outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded him to elect one other Knight in his room which Writ was executed accordingly and Sir John Fortescue elected And at the day to wit the first day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ that the said Sir Francis was Outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received and their Reasons were these First Because they took the Law to be that an Outlawry in Personal Actions was no Cause to Disable any Person from being a Member of Parliament and it was said That this was Ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another President was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly It was said that Sir Francis Goodwyn was not Outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Commoran in Bucks the Outlawry no Proclamation issuing to the County of Buks was void by the Statute of the 31th of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. and 3. The Return was of Francis Goodwyn Kt. Et quomodo constat that those Outlawries were against the said Sir Francis Goodwyn for these Reasons also they Resolved that the Outlawries were not any matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute 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 c. that the Indenture shall be the Return of the Sheriff It was also said That the Presidents do warrant this Judgment videlicet 1. One President of the 39 H. 6. where Person Outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and ot that time one Gargrave who was a man learned in the Law was Speaker and of the Queens Council 2. Another was the Case of one Fludd in the 23th of the Queen who being Outlaived was â—â—â—udged that he should be Priviledged by Parliament and at that time the Lord Chief Justice Popham was Speaer And 3. In the 35th of Elizabeth there were three Presidents scil one of Fitzherbert another of one Killegrew being Outlawed in 52 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 Vpper House 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 which 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
Returned And notwithstanding their Resolutions scilicet the Resolution of the Judges the Commons House hold clearly that Sir Francis Goodwyn was well Received into Parliament and the King commanded them to Confer together and Resolve if they could of Themselves and if they could not Resolve to Confer with the Judges and then to Resolve and when they were Resolved then to deliver their Resolution to his Councel not as Parliament men but as his Privy Council by whose hands he would receive the Resolution and for that purpose he left them behind him he himself being to ride to Royston a hunting And to pursue the Commandment of the King the Commons House clearly Resolved That what they had done was well and duly done and they were of Opinion clearly against the Judges as to the Matter of the Outlawry and that Ratione of the Presidents And also that the Parliament only had to do with the Sheriff's Returns of Members of Parliament and that the Returns ought not to be made till the first day of the Parliament and therefore They would not confer with the Judges But they appointed a Committee to consider of the Reasons to be delivered to the Council for the Satisfaction of the King which Committee by the Assent of All the House of Commons sent to the Lords this Resolution following videlicet As to what the King taxed the House for That they medled with the Sheriff's Return of Members of Parliament Note This Resolution was written in Parchment and so delivered to the Council of the King not as Parliament men but Representing the King's Person and a Copy thereof was kept in the House being but one half of the Body the Lords being one and the Principal Part of the Parliaments Body As to that They Answered That all Writs for the Election of Members of Parliament were returned into the Parliament House before 7 Hen. 4. at which time it was Enacted That all such Returns ought to be made in Chancery and that appeared by the Records from the Time of Edward the First until the said Year of the Seventh of Henry the Fourth And therefore the Parliament must of Necessity have only medled with the Returns till the making of the said Statute of the Seventh of Henry the Fourth at which time the place of the Return was alter'd and Enacted to be in Chancery but yet that did not take away the Jurisdiction of the Parliament to meddle with the Returns of the Members of Parliament but that remained as it was before And this was manifest as well by Reason as by Vse For that Court is to meddle with Returns where the Appearance and Service of Members is to be made and used But in the Parliament only the Appearance and Service are to be made and used and therefore in the Parliament only are the Returns to be examined and censured Likewise ever since the making of the said Statute of the Seventh of Henry the Fourth the Clerk of the Crown attends the Parliament every day till the end of it with all the Writs and Returns and at the end of the Parliament he brings them into the Petty Bag. The Presidents also do warrant this intermedling with Returns for the Parliament as in the Twenty ninth of the Queen a Writ issued forth to the Sheriff of _____ who made a Return before the day into Chancery and the Chancellour upon that Return containing such matter as this Writ now contains sent a second Writ to the said Sheriff who thereupon made a new Election and that second Writ was also returned and both the Writs and Returns brought into Parliament and there Censured by the Parliament That the first should stand and that the second Election was void and that the Chancellour hath no Power to award a second Writ nor to meddle with the Return of it and divers other Presidents were shewn by the Commons to the same Effect videlicet In the Nine and twentieth of Queen Elizabeth One. And in the Three and fortieth of Queen Elizabeth another And in the Thrity fifth of the Queen two Whereof one was upon the Return of the Sheriff that the Party first elected was Lunatick and thereupon the Parlament examined it and upon Examination thereof they found the Return true and gave a Warrant for another Writ As to the Matter that they were but One half of the Body to that they said That though in the making of Laws they were but an Half Body yet as to Censuring of Priviledges Customs Orders and Returns of their House They were an Entire Body as the Vpper House was for their Priviledges Customs and Orders which Continual and Common Vsage hath Approved of As to their Charge of having used Precipitancy and Rashness they Answered That they used it in such a Manner as in all Other Cases they were wont to do scilicet To have first a Motion of the Matter in Controversie and then they caused the Clerk of the Crown to bring the second day the Writs and Returns and They being thrice read they proceed to the Examination of them and upon Examination gave Judgment which was the true Proper Course of the Place As to the House's not having used the King well the thing being done by his Command they say That they had no Notice before their Sentence that the King himself took any special Regard of that Case but only that his Officer the Chancellour had directed the second Writ as formerly had been done As to the Matter of the Outlawry They said That they understand by his Royal Person more strength and light of Reason from it than ever before and yet it was without Example That any Member of the House was put out of the House for any such Cause but to prevent that they had prepared a Law That no Outlawed Person for the time to come should be of the Parliament nor any Person in Execution should have the Priviledge of Parliament But they said further That Sir Francis Goodwyn was not Outlawed at the Day of his Election for he was not Quinto Exactus the five Prolamations never had been made which Proclamation they in London always spare except the Party or any for him require it and that Exigent was never Returned nor any Writ of Certiorari directed to the Coroners to certifie it but after his Election which was a thing unusual the Money being paid the Sheriffs being long since dead to Disenable the said Goodwyn to serve in Parliament that the Exigent was returned and the Names of the deceased Sheriffs put thereto Et ex hoc fuit without doubt that Goodwyn could not have a Scire Facias for there was no Outlawry against him and by Consequence the Pardons had discharged him And They farther shewed to the King That if the Chancellour only could examine Returns then upon every Surmise whether it were True or False the Chancellour might send a Second Writ and cause a New Election to be made And thus the Free Election of the County should be Abrogated which would be too Dangerous to the Commonwealth For by such means the King and his Council might make Any Man whom they would to be of the Parliament House against the great Charter and the Liberties of England FINIS BOOKS Printed for and sold by Timothy Goodwin at the Maiden-head against St. Dunstan 's Church in Fleetstreet 1. AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by the late Lord Ch. Justice Herbert Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales Case 2. The Power Jurisdiction and Priviledge of Parliament and the Antiquity of the House of Commons asserted occasioned by an Information in the Kings Bench by the Attorney-General against the then Speaker of the House of Commons As also A Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late High Commission in Ecclesiastical Causes in King James II. 3. A Defence of the late Lord Russel's Innocency Together with an Argument in the great Case concerning Elections of Members to Parliament between Sir Sam. Bernardiston Bar. Plaintiff and Sir Wil. Soames Sheriff of Suffolk Defendant in the Court of Kings Bench in an Action upon the Case and afterwards by Error sued in the Exchequer Chamber 4. The Lord Russel's Innocency further defended by way of Reply to an Answer Intituled The Magistracy and Government of England Vindicated These four writ by the Rt. Hon. Sir R. Atkyns Knight of the Bath and Lord Chief Baron of their Majesties Court of Exchequer 5. A New Declaration of the Confederate Princes and States against Lewis XIV King of France and Navar Deliver'd in a late Audience at Versailles July 5. 1689. 6. Politica Sacra Civilis or a Model of Civil and Ecclesiastical Government wherein besides the Positive Doctrine concerning the State and Church in General are debated the Principal Controversies of the Times concerning the Constitution of the State and Church of England By George Lawson Rector of More in Salop. 7. The Parsons Councellor with the Law of Tythes and Tything In two Books The fourth Edition with the Addition of a Table Written by Sir Simon Degge 8. The Gentleman's Jockey and Approved Farrier instructing in the Natures Causes and Cures of all Diseases incident to Horses The Eighth Edition Enlarged 9. Popery or the Principles and Positions approved by the Church of Rome dangerous to all And to Protestant Kings and Supreme Powers more especially pernicious By Thomas Lord Bishop of Lincoln 10. A Modest Vindication of the Protestants of Ireland in Answer to the Character of the Protestants of Ireland 11. Sir St. John Broderick's Vindication of himself from the Aspersions cast on him in a Pamphlet written by Sir Richard Buckley Entituled Proposals for sending back the Nobility and Gentry of Ireland 12. Animadversions on Sir R.B. Proposals for sending back the Nobility and Gentry of Ireland 13. The Justice of Parliament in Inflicting Penalties subsequent to Offences vindicated and the lawfulness of the present Government asserted