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 which Bishops are not Judgments in Parliaments for Death have generally been strictly guided per Legem Terrae i.e. Lex Parliamenti d. 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 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 are guided by the Rule 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 Ibid. The Judges of all the Courts of Common Law in Westminster are but Assistants and Attendants to the High Court of Parliament And shall the Assistants judge of their Superiors The High Court of Parliament is the dernier Refort 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 need not be proclaim'd 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 Parliam n. 38. A Truce being concluded between the English and French by King Edward's Ambassadors who therein had dishonourably 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 Precedent and Records that they poured 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 ther Rescue and in dutiful ways discharged those Locks and Bars which had been unjustly fastned on the Exchequer The Right of the Crown of England Stat. Prov. 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 Matters en Ley a trier vie del home a reverser Errors en Bank le Roy especialment lou est ascun Commune Mischief que l'ordinary Course del Ley n'ad ascun means a remedier en tiel Case ceo est le proper Court Et tonts choses que ils font sont come Judgments Et si le Parliament mesme erre Finche's Nomotecnia l. 2. c. 1. f. 21. 22. 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 Sir Robert Cotton See Sir Robert Cot. Treatise of Parliaments p. 44 45 c in his Discourse of the Privilege and Practice of Parliaments says thus by Parliaments all the wholesom Fundamental Laws of this Land were and are Establish'd and Confirmed By Act of Parliament the Pope's Power and Supremacy in this Kingdom and the Romish Superstition and Idolatry were abrogated and abolished By Act of Parliament God's true Religion Worship and Service are or may be establish'd and maintain'd By Act of Parliament the two Universities of Oxford and Cambridge with other Cities and Towns have had many Privileges and Immunities granted em By Parliament one Pierce Gaveston a great Favourite and Misleader of King Ed. 2. was remov'd and Banished and afterwards by the Lords Executed Also by Parliament the Spencer's Favourites and Misguiders of the same King were Condemned c. and so was Delapool in H. 6. Time and others since By Parliament Empson and Dudley two notable Polers of the Common-wealth by exacting Penal Laws on the Subjects were Discover'd and afterwards Executed By Parliament the Damnable Gunpowder Treason hatch'd in Hell is recorded to be had in Eternal Infamy By Parliament one Sir Giles Mompesson a Caterpiller and Poler of the Common-wealth by exacting upon In-holders c. was discover'd degraded and Banished by Proclamation By Parliament Sir Francis Bacon Note the Censure on the late E. of Macclesfield Quere made by K. James 1. Baron of Verulam Viscount of St. Albans and Lord Chancellor of England was for Bribery c. discover'd and displac'd By Parliament Sir John Bennet one of the Judges of the Prerogative Court being Pernitious to the Common-wealth in his Place was discover'd and displac'd By Parliament Lyonel Cranfield sometime a Merchant of London and made by K. James 1. Earl of Middlesex and Lord Treasurer of England being hurfull in his Place to the Common-wealth was discover'd and displaced By Parliament Note Sir Francis Mitchell a jolly Middlesex Justice of Peace in the Suburbs of London another Canker-worm of the Common-wealth by Corruption in exacting an Execution of the Laws upon poor Alchouse-keepers Victuallers c. was discover'd and degraded from his Knighthood and
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
less than the united Consent of all and every Person of the Kingdom and under this Notion its Power is Unlimited and Universal its Authority is the most unerring and firm support of Monarchy and Government and has been ever used as the only Expedient to accommodate the differences of Pretenders and Competitors to arbitrate and decree not only the Right and Possession but even the Inheritance and Reversion of the Regal Power to succour and defend the King and Kingdom against all possibility of Injury or Incroachment that might be Intended against or Usurped upon it or its Authority to decree the Nations Liberties ascertain Property and to establish an unquestionable Peace and Security to all the People both from the danger of Grievances at Home or the Assaults of foreign Power In this capacity it hath Power above the Law itself Hollinshead c. 1. vol. 1. p. 173. having Power to alter the common Law of England to declare the meaning of any doubtful Laws to repeal old Patents Grants or Charters and Judgments whatsoever of the King or any other Court of Justice if erroneous or illegal and extends so far as finally to oblige both King and People to punish Offenders of all Sorts to examine into the corruptions of Religion and either to disanul or reform it Anno 1626. 2. Rushw Coll. vol. 1. p. 245. Car. the Commons in their Remonstrances declare that it hath been the antient constant and undoubted Right and Usage of Parliaments to question and complain of all Persons of what degree soever found grievous to the Common-Wealth in abusing the Power and Trust committed to them by the Sovereigns a Course approved of by frequent Presidents in the best and most glorious Reigns appearing both in Records and Histories c. In 30. E. 3. 7. H. 4. Rot. Parl. N o 31 32. the Parliament accused John de Gaunt the King's Son and Lord Latimer and Lord Nevil for misadvising the King and they went to the Tower for it In 11. Rushw Ib. p. 627. H. 4. N o 13. the Council are complained of and are removed from the King for that they mewed-up the King and disuaded him from the common Good In 4. H. 3. 27. E. 3. 13. R. 2. the Parliament moderateth the King's Prerogative and nothing grows to an Abuse says Sir Edward Coke but the Parliament hath Power to treat of and Correct it And King James the 1st Idem p. 62â— put the Commons assembled in Parliament in mind that it would be the greatest unsaithfulness and breach of Duty to his Majesty and of the Trust committed to them by the Country that could be if in setting forth the Grievances of the People and the Condition of all the Petitions of this Kingdom from whence they come they did not deal clearly with him without sparing any Persons how near and dear soever they were unto him if they were hurtful or dangerous to the Common-Wealth The most High and Absolute Power of the Realm of England Sir Tho. Smith's Common-wealth l. 2. c. 2. p. 72. Arcana Parl. 1. consisteth in the Parliament For as in War where the King himself in Person the Nobility the rest of the Gentility and the Yeomanry are is the Force and Power of England So in Peace and Consultation where the Prince is to give Life and the last and highest Commandment the Barony or Nobility for the higher the Knights Esquires Gentlemen and Commons for the lower part of the Common-wealth the Bishops for the Clergy be present to advertise consult and shew what is good and necessary for the Common-wealth and to consult together and upon mature deliberation every Bill or Law being thrice read and disputed in either House the other two parts first each a part Ibid p. 73. and after the Prince himself in presence of both the Parties doth consent unto and alloweth that it is the Prince's and whole Realm's Deed whereupon justly no Man can complain but must accommodate himself to find it good and obey it Thus the concurrent Consent of these three Estates when reduced to writing Inst Leg. p. 34. and pass'd in Parliament is as it were a Tripartite Indenture between King Lords and Commons and that which is so done by this Consent is called firm stable and sanctum and is taken for Law As to the Power of Parliaments Sir Tho. Smith ibid. Arc. Parl. 2. Vide Crompt Jur. 3. 1. It abrogateth old Laws 2. Maketh new Laws 3. Giveth order for things past 4. Directs things hereafter to be followed 5. Changeth Right and Possessions of private Men. 6. Legitimateth Bastards 7. Establisheth Forms of Religion 8. Altereth Weights and Measures 9. Giveth Form of Succession to the Crown 10. Defineth of doubtful Rights whereof is no Law already made 11. Appointeth Subsidies Tallies Taxes and Impositions 12. Giveth most free Pardons and Absolutions 13. Restoreth in Blood and Name 14. And as the highest Court condemneth or absolveth them who are put upon their Trial. In short Ibid. all that ever the People of Rome might do either Centuriatis Comitiis or Tributis the same may be done by the Parliament of England which representeth and hath the Power of the whole Realm both the Head and Body For every Englishman is intended to be there present either in Person or by Procuration and Attorny of what preheminence state dignity or quality soever he be from the Prince be he King or Queen to the lowest Person of England And the Consent of the Parliament is taken to be every Man's consent As to its Power over both the Statute and Common Law of this Realm Rastal's Statutes fol. 546. 25 H. 8. c. 21. you will be best informed of it from the memorable words of an Act of Parliament itself viz. Whereas this Realm recognizing no Superiour under God but only the King hath been and is free from Subjection to any Man's Laws but to such as have been devised made and ordained within this Realm for the Wealth of the same or to such other as by Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to the Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Custom and antient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Custom and none otherwise It standeth therefore with Natural Equity and Good Reason that all and every such Laws Humane made within this Realm by the said Sufferance Consents and Custom that the King and the Lords Spiritual and Temporal and the Commons representing the whole State of this Realm in the most High Court of Parliament have full Power and Authority not only to dispence but also to authorize some Elect Person or Persons to dispence with those and all other Human Laws of
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
the Officers and Persons making or procuring the same and every or any of them at his Election in any of his Majesty's Courts of Record at Westminster and shall recover double the Damages he shall sustain by reason thereof together with his full Costs of Suit And if any Officer shall willfully Like Action given the elected against Officer c. falsly c. making double Returns and the Prosecuters of such Returns Contracts Bonds c. given to procure the Return of any Members adjudged void and such Members as make or give them to procure any false or double Return forfeit 300 l. One third to the King another to the Poor of the County City c. and a third to the Informer with his Costs to be recovered by Action of Debt c. wherein no Essoign c. and but one Imparlance falsly and maliciously Return more Persons than are required to be chosen by the Writ or Precept on which any Choice is made the like Remedy against him or them and the Party or Parties that willingly procure the same or any of them by the Party grieved at his Election All Contracts Promises Bonds and Securities whatsoever hereafter made or given to procure any Return of any Member to Parliament or any thing relating thereunto shall be adjudged void and whoever makes or gives such Contract Security Promise or Bond or any Gift or Reward to procure such false or double Return shall forseit the Sum of 300 l. one third part to his Majesty another third part to the Poor of the County City Borough or Place concerned England and one third part to the Informer with his Costs to be recovered in any Court of Record at Westminster by Action of Debt Bill Plaint or Information wherein no Essoign Protection or Wager of Law shall be allowed nor more than one Imparlance The Clerk of the Crown to keep a Book of Entry of every single and double Return Clerk of the Crown to keep Books of Entry of Returns c. and of every Alteration and Amendment in every such Return whereto all Persons are to have access and take Copies of so much as desir'd at a reasonable Fee The Parties prosecuting such Suit Candidates may give such Book or a true Copy thereof in Evidence and have like Advantage as by producing the Record itself And if the Clerk of the Crown makes not such Entry within six Days after any Return or alters any Return without Order of the House of Commons or gives a Certificate of any Person not returned or wilfully neglects or omits his Duty herein he shall forfeit 500 l. for each Offence to the parth grieved Candidate to be recovered as aforesaid and lose his Office and be for ever incapable of holding it Every Information or Action upon this Statute England shall be brought within two Years after the cause of Action shall arise Informations or Actions on this Statute to be brought within 2 Years and not after That upon every Election to be made of any Knight or Knights of the Shire in case a Poll shall be requir'd the Sheriff or his Under-Sheriff shall appoint for each Candidate such one Person as shall be nominated to him by each Candidate Candidates for Knights of the Shire may nominate Persons to be Inspectors of the Poll and may require each Freeholder to be sworn before admitted to Poll. to be Inspectors of every Clerk who shall be appointed for taking the Poll and every Freeholder before he is admitted to Poll at the same Election shall if required by the Candidates or any of them first take the Oath in this Act contained Vide ante And if any Person do unlawfully and corruptly procure or suborn any Freeholder or Person to take the said Oath in order to be Polled Any Person procuring a Freeholder or other to take the Oath for the Poll whereby he commits Perjury and convicted of such Subornation for every Offence forfeits 40 l. and be incapacitated as a Witness till such Judgment reversed and for want of 40 l. imprisoned half a Year and stand in the Pillory an Hour per Stat. 5 Eliz. ch 9. whereby he shall commit wilful and corrupt Perjury and shall be thereof convicted he for every such Offence shall incur the like Pains and Penalties as are in and by one Act made in the 5th Elizabeth c. enacted against all such who shall c. Suboru or Procure any Person to commit any unlawful and corrupt Perjury contrary to the said Act. England The said Sheriff Without the Candidates consent the County Court not to be adjourned from the place of Election nor the Poll discontinued or in his Absence his Under-Sheriff or such as he shall depute shall not adjourn the County-Court from the Place of Election to any other Town or Place within the same County without consent of the Candidates but shall duly and orderly proceed to take the Poll from Day to Day and Time to Time without any further or other Adjournment without the Consent of the Candidates for such Adjournment Every Sheriff Any Person may demand a Copy of any Poll which the Sheriffs Mayors c. are required to deliver paying reasonably for writing it To each Party grieved Mayors Sheriffs c. for every wilful offence forfeit 500 l. to be recover'd by such Party his Executors or Administrators with full Costs by Action of Debt c. wherein no Essoign c. Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept shall belong for the electing Members to Parliament shall forthwith deliver to such Person or Persons as shall desire the same a Copy of the Poll taken at such Election paying only a reasonable Charge for writing And every Sheriff Under-Sheriff Mayor Bailiff and other Officer to whom the Execution of any Writ or Precept for electing Members to Parliament doth belong for every wilful Offence contrary to this Act shall forfeit to every Party so aggrieved the Sum of 500 l. to be recovered by him or them England his or their Executors or Administrators together with full Costs of Suit and for which he or they may Sue by Action of Debt Bill Plaint or Information in any Court at Westminster wherein no Essoign Protection Wager of Law Privilege or Imparlance shall be allowed No Person shall be capable of being elected a Member to Parliament who is not of the Age of 21 Years None shall be elected under the age of 21 Years The choice of any elected under that Age declared void and such Minor sitting c. in Parliament shall incur like Penalties as if sitting c. unchosen or returned and every Election or Return of any Person under that Age is declared Null and Void And if any such Minor chosen shall presume to sit or vote in Parliament he shall incur such Penalties and Forfeitures as if he had presumed to Sit and Vote in Parliament without being chosen or returned The Sheriff of
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 or 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 itself 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 he is to be heard out Id. 31. Vid. Town Coll. 205. 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 Hakeavel 33. ought not to be again brought into Dispute 27 Martij 1604. Ibid. Sir Edward Coke Attorney-General and Dr. Hone bring a Message from the Lords desiring a Conference about the Case of Sir Francis Godwyn Vide this Argument at large in the Appendix Upon this Message it was argued That now the Judgment having pass'd 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 Conference 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 who first stood up 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 sall into Debate thereof such Member is to withdraw The Members of the lower House came to the Lords upon a Conference Town Coll. 311. 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 the Lord Keeper Towns 95. Vide Sir S. d'Ewes Jour 585. and the rest of the Lords are to rise from their Places and to go down to the Bar and there 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 upper 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 King James his Objection in Sir Francis Goodwyn's Case 3 Apr. 1604. Memorials 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 be by us revoked we might without any Imputation refuse to confer Orders and Resolves of the House taken out of the third Volume of Mr. Rush worth's Collections Part 1. 2 Apr. 1604. Id. 71. A Rule that a Question being once made and carried in the Affirmative or Negative cannot be questioned again but must stand as a Judgment of the House the Case of Sir Francis Goodwyn and Sir John Fortescue See at the End of the House of Commons Proceedings about the Aylesbur-men 9 Nov. 1640. Id. 38. Ordered that the general Order for those that are double returned shall not bind Mr. now extra Regnum 10 Nov. 1640. Id. 41. Declared in the House that at the naming a Committee if any Man rise to speak about the same the Clerk ought not to write down any more Names whilst the Member standing up is speaking Ibid. Id. 42. Declared that when a Business was begun and in Debate if any Man rise to speak to a new Business any Member may but Mr. Speaker ought to interrupt him 11 Nov. 1640. Id. 44. That whosoever shall go forth of the House to a Conference in a confused manner before Mr. Speaker shall forfeit 10 s. and that the Reporters ought to go first to take their Places at Conferences 25 Nov. 1640. Id. 60. Ordered that when any Message is to go up to the Lords none shall go out of the House before the Messenger 26 Nov. 1640. Id. 61. That neither Book nor Glove may give any Man Title or Interest to any Place if they themselves be not here at Prayers 28 Nov. 1640. Id. 66. Ordered that if any one be chosen a Member of this House and his Writ not yet returned he may notwithstanding be admitted to the Sacrament to Morrow delivering a Ticket of his Name and the place for which he serves 4 Dec. 1640. Id. 83. Ordered that whosoever does not take his Place when he comes into the House or removes out of his Place to the Disturbance of the House shall pay 12 d. to be divided between the Serjeant and the Poor and whosoever speaks so loud in the House when any Bill or other Matter is reading as to
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.
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-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. 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