and at the Trial in giving of Evidence to the Jury he did indeed speak those Words but averr'd that they were pertinent to the Matter and were part of his Instruction It was resolv'd upon a Demurrer That the Plea was good the Words being pertinent though they were false And there is a further Reason given by the Court in that Case viz. The Words appear not to be spoken out of Malice And no Actions of this sort nor will any Indictment of this Nature lie unless there be Malice in the Defendant and where there is any justifiable occasion of speaking words that a man in discharge of his Function or Calling is led by the Subject-Matter of Discourse as a Preacher or Pleader or the like to speak words in such Case it shall be presumed they were not spoken out of Malice In the Case of an Attorney Sir E. C. in his 2d Instit. in his Exposition of the Stat. of Articuli super Chartas 28E 1. c. 10. tells us That in the very next year after the making of that Stat. viz. 29 E. I. Will. de Weston brought an Action of Conspiracy in the Kings Bench against William of Hempswell Parson of Newton and John of Malden Parson of Askerby for causing the Plaintiff to be cited before the Arch-Deacon of Linc. for a Trespass whereof he had been acquitted in the King 's Court. John of Malden pleaded That he was Communis Advocatus pro suo dando and so justify'd as an Attorney and it was found the Parson was Communis Advocatus and so not guilty of the Conspiracy In the Case of a Witness For what he says as a Witness or for what is said against him to disable him from being a Witness or to take off his Credit no Action of Slander will lie 35 H. 6. 14. In an Action of Conspiracy one of the Defendants justify'd as being a Witness to the Jury Crok 432. In the King's Bench Weston against Dobneet in an Action for Slander There was a Suit in the Spiritual Court and the Plaintiff that brought the Action of Slander was produced as a Witness in that Cause and the Defendant in that Suit in the Spiritual Court put in Exceptions against him That he had been perjur'd and therefore ought not to be used as a Witness Thereupon Weston the Witness brought this Action for that Slander And after Arguments the whole Court held that the Action of Slander did not lie for this manner of Slander because it was in a course of Justice and not ex Malicia In a Writ of Conspiracy One of the Defendants pleaded that he was one of the Indictors Judgment si Actio And the Plea is allow'd 20 H. 6 5. 33. Nay though it be not in a course of Justice in a Suit of Law yet if a man be in the doing of his Duty and in discharge of his Function and his lawful Calling and in discoursing of a Subject proper for his Function and enforcing of every mans duty of avoiding of any Sin and in pursuit of it tells a Story which he takes up upon trust and does not know it to be false and it prove at last to be utterly untrue and an innocent person is highly slandered by it yet he shall not be subject to an Action of Slander for it The occasion of speaking shall clear him from the Malice without which the Action will not lie In the Book of Martyrs written by Fox there is a Story of one Greenwood who lived in Suffolk that he had perjur'd himself before the Bishop of Norwich in testifying against a Martyr that was burnt in Queen Mary's time and says Fox this Greenwood afterwards by the just judgment of God had his Bowels rotted in him and so he died This Story by Fox in his Book of Martyrs was utterly false of Mr. Greenwood and after the Printing of that Book of Martyrs Mr. Greenwood was living in that very same Parish One Prist a Parson happen'd to be Presented to the Living of that Parish where this Mr. Greenwood then dwelt and 27. Eliz. in one of his first Sermons happen'd to inveigh against the Sin of Perjury to which his Text did lead him and the better to deter the People from the Sin of Perjury he told this Story out of Fox's Book of Martyrs and named the very Man Mr. Greenwood and Mr. Greenwood himself was then in the Church and heard this Story told of himself but the Preacher knew it not but thought the Story to be true Greenwood brings an Action of Slander against Prist the Preacher and upon the Trial of the Cause before the Lord Chief Justice Wray the Case appearing to be thus he directed the Jury to find for the Defendant for that it appear'd it was not done out of Malice And Ch. I. Popham affirm'd it to be good Law it being a Matter deliver'd after his occasion as Matter of Story This Case is cited by Sir E. C. in Sir Henry Mountagu's Case before mentioned Crook f. 90. With this agrees the Case of the Lord Cromwel against Denny a Vicar 4 Rep. 13. b. in an Action de Scand Magn. There is a Case in many Circumstances of it much resembling our Case It was the Case between Smith and Crashaw and others M. 20 in the Kings Bench in Sir Palmer's Rep. 315. An Action upon the Case is there brought against the Defendants for maliciously causing the Plaintiff to be indicted of Treason upon which Indictment the Grand Jury found an Ignoramus To this Action the Defendants pleaded Not Guilty and were found Guilty It was moved in Arrest of Judgment That to accuse one for Treason was not Actionable for the Safety of the King and State For if a Man be subject to an Action for it it will be a means that Treason shall be smothered and Men will not expose themselves to Actions by making such Discoveries J. Houghton held the Action would not lie upon an Ignoramus found for by that the Party is not acquitted but may be Indicted again and Convicted But he holds That if he be Indicted and upon Trial Legitimo modo acquietatus then he shall have an Action upon the Case in Nature of a Conspirary for now he is absolutely acquitted and cleared of the Accusation and never can be Indicted again for that particular Fact. Dodderidge agrees with Houghton and puts this Case If an Action of Conspiracy be brought against a Man For Indicting the Plaintiff of Treason The Defendant may Plead Specially and that is the safest way of Pleading That he heard the Plaintiff speak such and such Treasonable Words and that he thereupon complained to a Justice of Peace who committed the Plaintiff upon it and this says he shall excuse him Ley Chief Justice inclines too against the Action and gives a strong Reason Because says he it is Misprision to Conceal it and yet if we allow of this Action it shall be Dangerous too to discover it so
of the Exchequer quod si ita est Those Words do not refer to the Custom set forth nor to the Law upon it but to the Allegation in the Writ of matter of Fact viz. That Walsh the Defendant was menial Servant to the Earl of Essex And then the Defendant does by way of Plea grounded upon that Writ apply the Writ to himself and averrs That he is the same Person mentioned in the Writ and averrs That he was the menial Servant to the E. of Essex and then demands allowance of his Priviledge The Plaintiff in that Suit traverses the Custom and Priviledge alledged in the Writ as to the being impleaded but admits it as to the Freedom from Arrest This Traverse is in the Nature of a Demurrer for it is Quaestio Juris ad quam respondent Judices non Juratores Et super hot viso praelecto brevi praedicto per Barones c. Habitoque Avisamento Justiciariorum Domini Regis de utroque Banco in hac parte Quia videtur praefatis Baronibus de avisamento Justiciariorum praedictorum quod talis habetur habebatur consuetudo quod Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamentum de Sumonitione Regis venientes ac eorum Familiares Ratione alicujus Transgressionis c. dum sic in Parliamento morentur capi aut arrestari non debent But then they adjudge that the Priviledge does hold only against Arresting their Persons but not against the Suing them This strongly proves the Point I have in Hand That the House of Commons have their Priviledges by Custom and therefore the House it self could not have its Original within Time of Memory as 49 H. 3. is in a Legal Understanding It is very useful further to observe That the single and sole Occasion of this Record was from the Priviledge of the Peers from the suing a menial Servant of a Peer No Man denies but the Peers have even been a part of the Parliament Nay our new Modellers of the Government would have the Parliament to consist only of the King and Lords And yet it is said to be a Joint Custom for the Commons as well as for the Lords by express and particular Words Why did they not lay the Custom for the Priviledge of the Lords only that might have serv'd for that present Occasion which was about the Priviledge for a menial Servant of the then E. of Essex But the Custom was an entire Custom for both Houses This proves them to be coaetaneous and Twins by Birth and Original All this is by the Judgment of all the twelve Judges in a Judicial Proceeding And it takes in the Opinion of the Chancellor who issued out that Writ The other Record of the same Court is entred H. 12. E. 4. Rot. 7. inter Ryner Cousin Keeper of the Wardrobe to the King in an Action of Debt too and there the Defendant claims his Priviledge not as Servant to the King but as Servant to Thomas St. Leger Knight of the Shire for Surrey And the Writ of Priviledge sets forth the same entire Custom both for Lords and Commons tho' the Occasion was here from the Commons only and the Court of Exchequer gives the like Judgment as in the former Case by Advice too of all the Judges of both Benches The next Record I shall make use of shall be that of E. 2. which is a most invincible Proof that the Knights Citizens and Burgesses have originally and before 49 H. 3. constituted the House of Commons and have ever been a part of the Parliament The Burgesses of S. Albans in their Petition to the King say That they sicut caeteri Burgenses Regni ad Parliamentum Regis per duos Comburgenses suos venire debeant prout retro-actis temporibus venire consueverant tam tempore Domini Edwardi nuper Regis Angliae Patris Regis which must be E. 1. progenitorum suorum which must be understood of the Progenitors in the plural number of E. 1. for he mentions the then King E. 2. afterwards so that of necessity it must take in King Hen. 3. and his Father King John at the least And this Computation much exceeds the Date given to the House of Commons by these new Authors viz. 49 H. 3. And then the Petition descends to the mention of the then Kings Time viz. E. 2. tempore Domini Regis qui nunc est semper ante instans Parliamentum And the Petition complains of the Sheriff of Hertfordshire who by the Abbots procuring refused to summon that Burrough The Answer by the Councel is Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non This Answer admits the general Usage of Burgesses to be chosen for divers Burroughs in the times of the King's Progenitors For it is absurd to think that that needed any search of the Rolls in Chancery but the Search was to be only Whether that particular Burrough of S. Albans was one of those Ancient Burroughs that had used that Priviledge and had a Right to it which would appear by the Rolls and Returns of Writs of Summons The Record lays the Usage for the Burrough to have been semper ante instans Parliamentum so that the Usage had been from ever In the Rolls of Parliament 11 H. 4. num 59 cited by Mr. Pryn in his Brevia Parliamentaria rediviva fol. 185. There is a Petition of the Commons in French reciting the Stat. of 7. H. 4. c. 15. which Statute as the Petition says was made for the preserving the Franchises and Liberties of the Election of Knights of the Shire used throughout the whole Realm and by the Kings Progenitors from Parliament to Parliament time out of mind observed I will now put the Court in mind of some Acts of Parliament that fully prove this Point The Statute of 5 R. 2. Parl. 2. c. 4. in a time When Parliaments were not so much valued It is thereby Enacted by Assent of the Prelates Lords and Commons that all Persons and Communalties which should have a Summons to Parliament should come from thence-forth to Parliaments in the manner as they were bounden to do and had been accustomed of Old Times otherwise they should be Amerced as of Old Times had been accustomed Rot. Parl. 2. H. 5. Pars 2. Numb 10. This is left out of Sir Rob. Cott. Abr. That Act declares that the Commons had ever been a Member of the Parliament and that no Statute or Law could be made without their Assent I will not spend time in citing those Learned Antiquaries or Historians as Sir Henry Spelman Bedes Eccl. Hist. nor Famous Selden nor Learned Cambden who by general Words used in the Saxon Times for the Assembling of Parliaments tho' not by that Name prove the Commons to be a Part of Them but they do not prove the Commons to be so
Newly Printed for Timothy Goodwin at the Maiden-Head against S. Dunstans Church in Fleetstreet AN Enquiry into the Power of Dispensing with Penal Statutes together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgement was given in Sir Edward Hales's case By Sir Robert Atkins Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas THE Power Jurisdiction and Priviledge OF PARLIAMENT AND THE ANTIQUITY OF THE House of Commons ASSERTED OCCASION'D By an Information in the Kings Bench by the Attorney General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction IN THE REALM of ENGLAND Occasion'd by the Late Commission in Ecclesiastical Causes By Sir ROBERT ATKINS Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas LONDON Printed for Timothy Goodwin at the Maiden-Head against S. Dunstans Church in Fleetstreet 1689. IN THE KINGS BENCH TRIN. 36 CAROL II. BY INDICTMENT Middles THe Kings Attorney informs the Court That W. W. Esq being a Pernicious and Seditious Man and Contriving and Practising Falsly Maliciously and Seditiously to disturb the Peace and Quiet of the Kingdom And to stir up Sedition and to procure Ill-Will between the King and his Subjects And to bring the D. of Y. into Contempt with the King and his Subjects In order to the Compassing of all these The ninth of November 34 Car. 2 In the Parish of S. Martins in the Fields in the County of Middlesex He the said W. W. did with Force and Arms Falsly Vnlawfully Vnjustly Wickedly Maliciously Scandalcusly Seditiously and Devillishly for his own Lucre Cause and Appoint a certain False Scandalous Seditious and Infamous Libel entituled The Information of Thomas Dangerfield Gentleman to be Printed and Published In which Libel among other things are contained as followeth The Information of Thomas Dangerfield Gentleman c. the Contents of it have been read and need no Repetition In Contempt of the Law and to the ill Example of others and against the Peace and the Kings Crown and Dignity And the King's Attorney prays Process against him That he may be brought in to answer it The Defendant pleads to the Jurisdiction of this Court and says That by the Law and Custom of Parliament The Speaker of the House of Commons sitting the Parliament according to the Duty of his Office as Servant to the House ought and ever has accustomed to Speak Sign and Publish such Proceedings of that House and in such manner as he shall be ordered by the Commons so assembled And that such Speaking Signing or Publishing according to the Law and Custom of Parliament are the Act and Doing of the Commons themselves and hath ever been so accepted and taken and not as the Speakers own Acting or doing And that the Speaker for such Speaking Signing or Publishing by him made or done sitting the Parliament and by their Order ought not to answer in any other Court or Place but in Parliament He further says That at the Sessions of Parliament at Westminster the 15th of March 31 Car. 2 held by Prorogation One William Viscount Stafford and others were impeached by the Commons before the Lords according to the Law and Custom of Parliament of High Treason For a most execrable Conspiring to kill the King And to Alter and Subvert the Ancient Government and the Laws of the Realm And to Suppress the true Religion established in this Kingdom And to root up and destroy the Professors of it And that afterwards in the Sessions of Parliament held by Prorogation at Westminster 21 Octob. 32 Car. 2. The said Viscount Stafford at the Prosecution of the Commons was Tried and Convicted and Attainted in due Form of Law by the Temporal Lords then assembled in Parliament for the High Treasons of which he was so Impeached by the Commons As by the Record of Parliament does appear He further says That in the opening of that Session The King in his Speech to the Lords and Commons charged them to pursue a further Examination of that Conspiracy with a Strict and Impartial Enquiry And the King then told them That he did not think himself nor them secure till that matter was throughly done He further says That in the same Sessions of Parliament last mentioned which continued at Westminster till 10 Jan. 32 Car. 2. both Houses of Parliament in pursuance of his Majesties said Direction made a Strict and Impartial Enquiry after that Conspiracy And upon that Enquiry in the same Sessions of Parliament last mentioned the said Thomas Dangerfield in the said Information named did upon his Oath exhibit to the Lords in Parliament the said Libel entituled The Information of Thomas Dangerfield Gentleman as his true Information of that Conspiracy And delivered it to the Lords which was and is there Recorded as by the Record thereof in Parliament does appear And he also delivered it to the House of Commons in the same Parliament at the Bar of that House And the said Commons then ordered That that Information among others then before given in at the Bar of that House touching the said Plot should be entred in their Journal And that all the said Informations should be printed being first Perused and Signed by their Speaker And that the Speaker should name and appoint the Persons that should print them And that Thomas Dangerfield should have the Benefit of the Printing of his Information And the Defendant further says That he was a Member of the House of Commons during all the Sessions of Parliament last mentioned and was duly Elected and Made their Speaker and was so all that Sessions And that by virtue of and in pursuance of the said Order as Speaker of the House afterwards during that Session sc. 10 Nov. 32 Car. 2. in the Parish of S. Martins in the Fields in the said County of Middlesex He did Peruse the said Information so exhibited by the said Thomas Dangerfield to the Commons and he Signed it by putting to it his Name viz. William Williams Speaker of the House of Commons And then and there appointed Thomas Newcomb and Henry Hills being the Kings Printers to Print that Information according to the said Order of the House of Commons And thereupon the said Information afterwards and during that Session sc. 10 Nov. 32 Car. 2. was printed by those two Printers And that the said Thomas Dangerfield had the Benefit of that Printing according to the Order of the House Which Setting to of his Name and Appointment of the said Printers to Print the said Information are the same Causing and Appointing of the Printing and Publishing of the Libel in the Attorney General 's Information mentioned Absque hoc That he is Guilty of the Premises in the said Attorney General 's Information specified on
the ninth of November in the said Information specified or at any other Time after the said Session of Parliament or before it or otherwise or in any other manner than as he has above alledged And this he is ready to aver c. Wherefore and for that what he so did was done by him as Speaker of the House of Commons in Parliament and by their Order and Sitting the Parliament He demands the Judgment of this Court Whether this Court will take any further cognizance of this Matter Kings Bench The Kings Attorney is Plaintiff and W. W. Esq Defendant in an Information for a Misdemeanour The Information sets forth c. vide the Brief of the Record THe Information taken singly by it self without the Defendents Plea contains a very Severe and Heavy Charge in it against the Defendant set out with the highest Aggravations And this against a Gentleman of the Profession of the Law and one who hath had the Honour to be Speaker of several Parliaments We may observe in this Information the worst of Adjectives or Epithites fastned upon the Defendant It stiles him A Pernicious and Seditious Man. It charges him with the worst of Actions sc. Stirring up of Sedition Disturbing the Peace of the Kingdom endeavouring to procure Ill-will between the King and his Subjects and to bring the D. of Y. into Contempt with the King and his Subjects and with the Printing and Publishing a False Scandalous Seditious and Infamous Libel These Crimes and Actions are set out in Mr. Attornies Information with the worst of Adverbs and with a great Heap of them together viz. That these things were done by the Defendant Falsly Vnlawfully Vnjustly Wickedly Maliciously Scandalously Seditiously and Devillishly And to add if possile to all this it is charged to be done out of one of the basest Principles Out of Malice and for one of the most Sordid and Odious Ends viz. For his own Lucre. It may further be observed That the Information does not alledged or affirm That there is any such Person in the World as Thomas Dangerfield though it mention the Name nor that any such Person did ever Frame or Draw up any such Scandalous and Libellous Book or Information as is mentioned in Mr. Attorneys Information But for all that Mr. Attorney shews the Name of Thomas Dangerfield may be but a feigned or borrowed Name and that the Defendant may be the Author and Composer of this Libel as well as the Publisher And one would not imagine upon reading Mr. Attorney's Information that any thing of these Matters thus charged was ever transacted in Parliament But Mr. Attorney gives them another Date both of Time and Place He does not lay the Scene at Westminster but at S. Martins in the Fields and he times it to the Year 1682. whereas there was no Parliament in that Year This was warily done Thus the Case stands upon Mr. Attorney's Information and should it be left here it would be a wosul Case with the Defendant But as Solomon says in his Proverbs The first in his own cause is just then comes the other party and enquires into him The plain English of which is as we use to say One Tale is good till another is told The Defendant in his Plea states the matter truly and fully and tells us That there is nothing true in this Information exhibited against him save only that there was such an Information of Dangerfields but that the Defendant was none of the Author It was drawn up and delivered in to both Houses of Parliament first to the Lords upon Oath and there ordered to be entred in their Journal And afterwards delivered at the Bar of the House of Commons And that the Defendant being Speaker of the Commons he examined that Information of Dangerfields and directed the Printing of it But it was all done in time of Parliament and ordered to be done by the House of Commons By this Narrative of the Plea all the unlucky Adjectives and untoward Adverbs are thrown off and the Defendant cleared from the Malice Nor is it true that is said in Mr. Attorney's Information To be done for the Defendants Lucre. He did it out of Obedience to the Parliament and he denies that he made any Profit by it but according to the Order of the House the Profit of the Printing was to Dangerfield And all this is confessed by the Demurrer The Plea consists of these Parts Matter of Fact Matter of Record and Matter of Law. It begins with Matter of Law and sets down the Law and Custom of Parliament Then he does assume the Matter of Fact and of Record and brings them home to that Law. He tells us That for certain there was such a thing as a Popish Plot and that it was a Desperate Horrid Devillish Plot. And here all the bitter Adjectives and Adverbs would have been well bestowed rather than upon the Speaker of that Parliament which Parliament with such admirable Zeal and Courage did prosecute some of those Plotters He sets forth That the Lord Stafford was in Parliament Convict before the Lords of High Treason committed in that Plot and he was Covicted at the Prosecution of the Commons according to the Law and Custom of Parliament He says That the King in his Speech to the Lords and Commons charged them to make a further strict and impartial Enquiry after this Plot. Then the Plea tell us They did accordingly make an impartial Enquiry and diverse others were thereupon convicted of that Plot. It now appears plainly That all that is contained in this Plea was not only done during the Parliament but by the Parliament it self and that the Defendant only acted as Speaker And it is worth the remembring too That there has been another Parliament since namely that at Oxford And though all that was done by him in the Parliament at Westminster was then very well known and remembered and though he were so Pernicious and Seditious a Man in the Opinion of Mr. Attorneys Information yet the World had a better Opinion of him for he was chosen Speaker again in that latter Parliament and his Majesty approved of him At last the Defendant concludes his Plea to the Jurisdiction of this Court viz. That what he had so acted being acted in Parliament time and by Order of Parliament he demands the Judgment of this Court Whether they will take Conusance of it The Attorney General demurr'd to it THe Subject Matter of this Record is a very large Field viz. The Power and Jurisdiction of Parliament and yet I shall have but a narrow Path to walk in It is a very Nice and Tender Point It is my Case as it was heretofore with those that were to undergo the old Saxon Trial by Fire Ordail per ferrum candens If I tread aside and make a wrong Step I may do my self a Mischief But by the Grace of God I shall take care neither on the one
Elected and to consist of Knights Citizens and Burgesses as is clearly Proved by the Records I have already offer'd The Parliament in the Saxon Times was styled Commune Concilium tam Cleri quam populi And the Laws were made per Commune Concilium assensum Omnium Episcopar ' Principum Procerum Comitum omnium sapientum Senior ' popular ' totius Regni Populi Conventus King Edward the Confessor Confirm'd the Saxon Laws and made new says Lambert in his Book De Priscis Anglor Legibus C. 8. fol. 139. and there ' t is said all to be done a Rege Baronibus Populo These general Words cannot be understood otherwise than to include the Commons And so totius Regni assensu omnium astipulatione judicio says Mr. Selden a Judgment was given concerning Lanfrank Arch-Bishop of Canterbury The Statute of Mag. Charta was made and Confirm'd 9 H. 3. which was forty Years before this new Date of the Original of the House of Commons viz. 49 H. 3. And it appears by several Statutes that Mag. Charta was made De Communi Concilio Regni says one Statute Per Commune assent de tut le Realm says another Per le Roy Peers Communes de le terre says another It is worth the while to examin the Grounds of their Opinion and it will appear how weak they are These new Authors affirm that the House of Commons began to be admitted as a part of the Parliament not till â— 49 H. 3. Their reason is because as Mr. Prin says in his Plea for the Lords fol. 182. and in his Preface to Sir Robert Cott. Abr. The first Writ of Summons of any Knights Citizens and Burgesses now extant is no antienter than 49 H. 3. Dorso 10. and 11. And from thence he concludes that it is most apparent that the Commons had no Place nor Votes by Election in Parliament before the End of the Reign of H. 3. and Sir Robert Filmer is in like manner positive in it in his Book call'd The Freeholders Grand Enquest fol. 18. and they both cite Mr. Seld. and Camd. and other Learned Authors and Mr. Dugdale in his Origines Juridiciales fol. 18. follows them in it It is true Mr. Selden in His Titles of Honour fol. 717 towards the end of that fol. does take notice that the First Roll that they find extant is that of 49 H. 3. for the Summoning of the Commons by way of Election but he does not thence conclude as those new Authors do that this was the first time that the Commons came to the Parliament by Election But in other places of his Learned Book he does strongly intimate his Opinion to be that the Commons did very Anciently and long before 49 H. 3. make an Essential part of the Parliament and were summon'd to it but in what Form they were summon'd and when they first began to be distinguished from the Barones Majores Selden himself seems much unresolved Learned Camden does indeed date the Original of the Commons as a part of the Parliament and as now Elected from 49 H. 3. fol. 13. of his Britannia in the Edit at Lond. An. 1600. But let us take notice upon what Authority he does it He says he has it Ex satis Antiquo Scriptore but he names not his Author Mr. Seld. fol. 713. says he could never meet with that Author and professes he gives little Credit to that Relation but acknowledges there had been a great Change in the Constitution of the Parliament but supposes it long before 49 H. 3. viz. in the time of that King's Father King John and that it was done by a Law tho' the Law be lost as many Rolls of Parliament were wherein those Laws were entered And the distinction of Barones Majores Minores he supposes was made by Act of Parliament about the time when the great Charter of King John was made at Runnymead viz. 17 Johannis By which Charter some of the Barones Majores were severally to be Summon'd to Parliament by special Writs And all other Tenants in capite or Tenants by Knights Service were to be summon'd by a general Summons directed to the Sheriff of every County By this Conjecture it should seem that the Court of Parliament before consisted but of one House or Assembly And it is generally held that at the first from the beginning of the Reign of William the first till that Charter of King John all Tenants in Capite had a Right to sit in Parliament For says Mr. Seld. fol. 704. medio folii Tenere de Rege in Capite and to be a Baron and to have a right to sit in Councils or Courts of Judgment are Synonymies That great Charter of King John says Seld. was made by the King and his Barons liberos homines totius Regni and that it seems first made the distinction But Mr. Seld. does by no means leave it to K. H. 3. or his Son E. 1. or to any other King at any time to send his special Writ of Summons to such of the Barons only quibus ipse Rex dignatus est Brevia Summonitionis dirigere As Mr. Camden's nameless Authour taught him and from Mr. Camden Mr. Pryn Sir Robert Filmer and Mr. Dugdale take it up and so propagate that Error So that this new fancy is wholly grounded upon the Credit of that uncertain Writer whom Mr. Selden could never meet with and to whom he gave no credit The Argument upon this Subject begins fol. 701. in Mr. Seld. Tit. of Honour and is continued to fol. 718. Now the Argument taken from the Rolls of Summons which are not extant before the time of 49 H. 3. is of no weight For by the same Argument it might be proved that there was no Parliament from the time of 49 H. 3. till 23 E. 1. For there is no Roll nor no other Testimony left of a Summons for any Knights Citizens and Burgesses from 49 H. 3. till 23 E. I. And yet we know there were no lest than fourteen Parliaments between those times And yet we know there were no less than fourteen Parliaments between those times They may as well argue that there were no Acts of Parliament nor no Parliament till 9 H. 3. when Magna Charta was made because there are no Rolls of them till that time Whereas it is beyond all dispute that there were Parliaments and Acts of Parliament long before as 4 Will. 1. when the Bishops were brought in to hold by Barony as Mr. Seld. conceives and some in H. 1. and others yet extant in History yet the Rolls of them are lost This is observ'd by the Ld. Ch. I. Vaughan in his Rep fol. 358. in the Case of Thomas and Sorrel In the next place these late Authors proceed further in their errour and maintain that the Commons had no further power in Parliament than what the King and the Lords admitted
argued that the Commons at the Common-Law which is ab initio were a part of the Parliament In the Case of Ferrers out of Crompt Jurisd of Courts fol. 8 9 10. for I keep within my proper Element and move in my Sphere and cite Authors of our own Science of the Common-Law K. H. the 8th call'd before him the Lord Chancellor the Judges the Speaker of the House of Commons and others and thus express'd himself before them viz. That he was inform'd by his Judges that he the King as Head and the two Houses as Members were knit together in one Body Politick so as whatsoever Offence or Injury during time of Parliament is offer'd to the meanest Member of the House is to be judged as done to the King's Person and the Whole Court of Parliament And Sir Edward Mountague the Ld. Ch. I. then present confirm'd all that the King had said and it was assented to by all the rest of the Judges Now if you bruise or pierce the hands and the House of Commons may well be compar'd to the hands for they have been the Liberal Hands and the Hands feed the Head the Head and all the rest of the Body must quickly be sensible In Trewinnard's Case Dier 60. and 61. The Priviledge of the Commons upon this very account is term'd the Priviledge of the 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 The Statute of 1 C. 1. saies the Parliament is the whole Body of the Realm By the two Records that I cited before out of the Office of Pleas in the Exchequer 12 E. 4. It appears in two several Cases of Priviledge the one concerning the Lords and the other concerning the Commons in both Cases the Priviledge was laid and claim'd as one entire Priviledge and so allow'd by the Judgment of that Court by advice of all the Judges of both Benches The Speaker of the House of Commons by the Rolls of Parliament which are the most proper proofs in a thing of this Nature is term'd the Speaker of the Parliament so it is in the Roll of 1 R. 2. in Sir Cotton's Abr. fol. 155 it was in the Reign of a King that was no favourer of Parliaments Sir John Bussey Speaker to the Parliament Sir Robert Cotton's Abr. 20. R. 2. num 14 and 15. 51 E. 3. num 87. Sir Robert Cotton's Abr. fol. 151. Sir Thomas Hungerford Speaker of the Parliament And so is the Speaker of the Commons styled in the Case of Ferrers in Crompton's Jurisd of Courts fol. 8 9 10. before cited In the Statute of 6 H. 8. C. 16. the Clerk of the House of Commons is called Clerk of the Parliament In the Case of Godsol and Sir Christ Heydon 12 in B. R. in Sergeant Roll's Rep. fol. It was affirm'd by Sir E. C. that in antient time all the Parliament sate together and the separation was at the desire of the Commons notwithstanding saies he they are but one house and he further affirms that he had seen a Record 30 H. 1. of their Degrees and Seats Having made it appear that the Parliament is one intire body and therefore mutually concern'd in Powers and Priviledges as to the Right and Title of them tho' dividod sometiems in the Exercise I shall proceed briefly to show what those Powers are in order to the proving that what in our Case is charg'd to be done by the Speaker by Order and Command of the Parliament for so I may now affirm is pursuant to their Power and Jurisdiction The Parliament hath three Powers 1. A Legislative in respect of which they are call'd the three Estates of the Realm 2. A Judicial in respect of this 't is call'd Magna Curia or the High Court of Parliament 3. A Counselling Power hence it is call'd Commune Concilium Regni For the proof of these I shall cite some few Antiquaries but chiefly some Authors of our Profession of the Law and those of the best Authority with us I shall mention them without observing any exact method because divers of them extend to more than one of these distinct Powers and some of them refer at once to all of them Sir Henry Spelman in his Glossary Tit. Gemotum which was the old Saxon word for a Parliament fol. 261. Convenere saies he Regni Principes tam Episcopi quam Magistratus there are those that now make up the House of Lords Liberique homines there are the Commons what is their proper Work and Power Consulitur de communi salute de pace bello This proves them the Commune Concilium Regni Learned Camden Quod Saxones olim Wittena Gemot nos Parliamentum recte dicicimus as to their Power Summam Sacro-sanctam authoritatem habet in legibus ferendis interpretandis in omnibus quae ad reipubl salutem spectant This shews their Legislature The Mirror of Justices this is an Authority in Law C. 1. fol. 9. saies Parliaments were institued Pur oyer terminer this is is the Supream Court of Oyer and Yerminer The Court of King's Bench is said to be above all Courts of Eire or Itinerant and if the King's Bench be adjourn'd into any County where the Eire is sitting the Eire ceases In praesentia Majoris c. But this Court is above the King's Bench and all Courts of Oyer and Terminer The King's Bench is the Highest Eire but this is according to Solomon's Hyperbole higher than the highest But what is the proper Subject of their Oyer and Terminer Our Antient Author who wrote some part of his Book before the Conquest tells us their work is to hear and determine les plaintes de tort le Roy de la reign de leur Enfans the King's Children so that they make an Impartial Enquiry but saies our Author further De eux specialment de queux torts lun ne poit aver autrement common droit this flies very high to prove their Judicial Power I forbear to English it It is the proper work of this Supream Court to deal with such Delinquents as are too high for this Court of the King's Bench or other ordinary Courts Against whom through their Potency or mighty Interest common right cannot be had it must be understood in ordinary Courts And the Writing and Printing of this was never taken to be a Scandal to the Government or to the Justice of the Nation For the Author speaks in the Person of the King himself and tells us that the High Court of Parliament is arm'd with a Power able to cope with and quell the most insolent Offenders When the Great Judge of all the Earth comes to make Inquisition for Blood and to Execute Judgment by the hands of this High Court. The lofty looks of man shall be humbled and the haughtiness of men shall be bowed down and made low To discourse of this Judgment
Point Mr. Pryn in his Preface to Sir Cotton's Abr. is of an Opinion by himself that tota Communitas signifies the whole Baronage But it appears by the Body of the Letter there written that Communitas is distinguished from the Majores Sir Sir Cotton's Abridgement 6 E. 3. fol. 12. in the upper part It is said the Lords and Great Men by the Mouth of Sir Henry Beaumont Mr. Hakewell in his aforesaid Treatise speaking of William Trussel says the Commons aswered by his Mouth 13 E. 3. 2 R. 2. Numb 16. Sir Cotton's Abr. fol. 174. The Commons return their Answer to the King by Sir James Pickering their Speaker 17 R. 2. Numb 17. Sir R. Cott. Abr. 353. The King advising with the Commons concerning a Peace with France return their Answer by Sir John Bussey their Speaker Mr. Hakewell in his Book before cited fol. 205. 7 H. 4. says that Sir John Tiptoft while he was Speaker signed and sealed the Deed of Entailing the Crown with these words Nomine totius Communitatis Mr. Elsing in his Treatise of Parliaments fol. 125. tells us that what was spoken by the Speaker is entred in the Rolls as spoken by the Commons But take what is done by the Defendant to be his proper acting yet he acting only as a Minister and Servant to the High Court of Parliament by the ordinary Rules of Law in Cases of Officers he is not suable nor any way punishable for it This is Resolved in the Rutland's Case 6 Rep. 54. and the same Case likewise Reported in Moor's Rep. 765. That an Officer or Minister executing Process which is erroneously awarded as where a Capias is awarded against a Peer the Officer is to be excus'd for he must not dispute the Authority of the Court but obey And in that Case the Secondaries of the Counter and the Serjeants in London were excus'd and held not guilty of any offence So in the Case of the Marshelsea 10 Rep. 76. Where the distinction is If the Court have a Jurisdiction the Officer is excus'd though the Process be Erroneous Qui jussu Judicis aliquod fecerit non videtur dolo malo fecisse quia parere necesse est Keilwey 99. a Med. by Brudnel and the Lord Dier in Trewinnard's Case fo 60. b Where a Writ of Priviledge in case of a Parliament-man Arrested is granted where it ought not to be and the Sheriff by virtue of that Writ discharged the person Arrested Yet the Sheriff saith that Case is not chargeable in an Action for this Parere necesse est What that necessity is we may see in that Case of Trewinnard Dier fo 61. a Med. if the Sheriff refuse to execute the Writ And as a fair warning to Sheriffs and other Officers not to resist or disobey the Commands and Orders of the House of Commons the Lord Dier mentions what punishment was inflicted upon the Sheriffs of London in the Case of Geo. Ferrers They were committed to the Tower for their contempt in not letting a Parliament-man taken in Execution to go at large when the Serjeant at Arms of the House of Commons came for him without a Writ Nay the Lord Dier says in the latter end of that Case of Trewinnard that if the Parliament err'd he speaks it of the House of Commons yet there is no default in the Sheriff When the late King being in Person in the House of Commons and sitting in the Speaker's Chair ask'd the then Speaker Whether certain Members whom the King named were then in the House The Speaker answer'd readily and wisely and with a good presentness of mind which arose from the Genius of that House That he had neither Eyes to see nor Tongue to speak but as the House was pleased to direct him III. POINT As to the last Point That for matters done in or by the Parliament as the matters in our Case are neither the King's-Bench nor any other Court but the Court of Parliament it self can by Law take Cognizance of it This is the great Point of the Case I shall first offer to prove it by Reasons and then I shall back and enforce those Reasons by many Authorities and those of the highest sort 1. Reason The Parliament gives Law to this Court of the Kings-Beneh and to all other Courts of the Kingdom and therefore it is absurd and preposterous that it should receive Law from it and be subject to it The greater is not judged of the less 2. The Parliament is the immediate Court for Examining the Judgments of the Court of King's-Bench and if they be erroneous they reverse them and if this Court should against Law take upon them to proceed in this Cause and give Judgment the Parliament when it Meets no doubt will set it aside as Erroneous And no Man does in the least doubt but they have power to do it and there is as little doubt but they will do it therefore it is wholly in vain for this Court to take Cognizance of it and it cannot be revers'd elsewhere it being in a matter of Jurisdiction See the Statute of 27 Eliz. c. 8. The Preamble reciting that Erroneous Judgments given in the King's-Bench are only to be reform'd by the High Court of Parliament which Court of Parliament was not in those days 〈◊〉 often holden as in Ancient time it had been Neither yet in respect of the greater Affairs of the Realm could they well be consider'd of and determin'd in Parliament c. There is an Exception of Errors that concern'd the Jurisdiction of the King's-Bench those remain as before and in the Errors that are referr'd to the Judges of the Common-Pleas and Barons of the Exchequer by 27 Eliz. c. 8. the Jurisdiction of the Parliament is to Examine them c. 3. This Court as all the Courts of Common-Law Judge only by the ordinary Rules of the Common-Law But the proceedings of Parliament are by quite another Rule The matters in Parliament are to be discuss'd and determin'd 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 4. The Judges of this and of the other 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 5. The High Court of Parliament is the dernier resort 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 controll'd 6. The Parliament is of an absolute and unlimited power in things Temporal within this Nation I shall now proceed to Authorities that are full to this Point and do second and back those Reasons that I have offer'd wherein I shall not observe any method by reducing or ranking of them under these Reasons that I have offer'd because some of the Authorities justifie several of these Reasons all at once That the Parliament hath the highest and most
sacred Authority of any Court that it hath an absolute power that it is the highest Court in the Realm is acknowledged by our most Learned and gravest Writers and Historians for I would not wholly omit them though I do not need them but I relie only and put all the stress of my proofs and arguments upon my Authorities in Law. Cambden in his Britannia Summam sacrosanctam Authoritatem habet Parliamentum Knighton de eventibus Angliae l. 1. fo 2681. col 1 2. He calls it the Highest Court of the Realm So it is call'd in Trewinnard's Case in Dier 60 61. Sr. Thomas Smith in his Common-Wealth of England l. 2. c. 2. fo 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis Sir R. Cotton in his Posthuma edit at Lond. pag. 345. cited by Mr. Pryn in his Preface to Sir Robert Cotton ' s Abr. The Parliament controlls all Inferior Courts and all Causes of difficulty cum aliqua dubitatio emergit referr it to the Parliament To shew their power and jurisdiction upon Erroneous proceedings in other Courts by authorities in Law which confirms one of my Reasons In Trewinnard's case it is said that though the Parliament erre it is not reversible in any other Court This is spoken in a case where the then occasion was upon a Judgment given only by the House of Commons in a case of Priviledge Agreeable to this is 21 E. 3. fo 46. Br. Abr. tit Error plac 65. in the latter end of that case and 7 H. 6. Br. Abr. tit Error plac 68. by Cottesmore and 1 H. 7. fo 19. Br. Error plac 137. Error in Parliament shall be revers'd in Parliament non aliter for there is not an higher Court. 1 H. 7. fo 19 20. By all the Judges in the Exchequer-Chamber for a Judgment in the King's-Bench Error must be sued in Parliament and as the Parliament shall correct the Judgments so they are to correct the Judges that give corrupt and dishonest Judgments These are the words and the opinions of the Lord chief Justice Vaughan in his Reports fo 139. in Bushel's case Such says he in all ages have been complained of to the King in the Star-Chamber which is a Court now dissolv'd by Parliament or to the Parliament He there mentions many Judges those 44. that were hang'd in King Alfred's time before the Conquest for corrupt judgments and those in the time of E. 1. E. 3. and R. 2. for their pernicious resolutions He vouches the Journals of Parliament and instances in the Judgment of Ship-money in the last King's time and the particular Judges impeach'd Sir E. C. in his 12 Rep. fol. 64. the words are spoken by Sir E. C. but as that Rep. says with the clear consent of all the Judges The King hath his Court that is to say in the Vpper House of Parliament in which he with his Lords is the Supreme Judge over all other Judges For if Error be in the Common-Pleas that may be revers'd in the King's-Bench and if the Court of King's-Bench erre that may be revers'd in the Upper House of Parliament by the King with the assent of the Lords Now though this is spoken of the Lords House only yet it must be again remembred that the Parliament as I prov'd before is one entire Body and that their power in the right of it is entire though as to the exercise of it it is distributed into parts and is divided Not can the House of Lords exercise any power as an House of Parliament or as a Court for Errors without the House of Commons be in being at the same time Both Houses must be Prorogu'd together and Dissolv'd together like the Twins of Hippocrates they live and die together and the one cannot be in being without the other also at the same time be in being too 2. Inst. 408. Matters of difficulty were heretofore usually Adjourn'd to Parliament but says he 't is now disused And 2. Inst. 599. Courts at variance properly complain to the Parliament 4. Inst. In the Chapter of the Court of the Kings-Bench Errors in the Kings-Bench in matters that concern their Jurisdiction and other Cases there excepted in the Act of 27 Eliz. Cap. 8. cannot be Revers'd but in the High Court of Parliament 4. Inst. Fol. 67. There is a Court Erected by the Statute of 14 E. 3. Cap. 5. Stat. 2. For redress of delays of Judgments in the Kings great Courts consisting of a Prelate Two Earls and Two Barons to be chosen in Parliament by that Statute If the Case before them be so difficult that it may not well be determin'd without assent of the Parliament it does not say by the House of Lords only then shall the tenor of the Record be brought by the said Prelate Earls and Barons into the next Parliament and there a final Judgment shall be given Si obscurum difficile sit Judicium ponantur judicia in respectu usque magnam curiam Rot. Parl. 14. E. 3. Num. ult Sir Jeffery Stanton's Case 25. E. 3. Cap. 2. The Chapter of Treason in the 2. Inst. Fol. 21. The Judge or Court in some Cases is to forbear going to Judgment till the Cause be shewed before the King and his Parliament whether it ought to be judged Treason or not That this Court proceeds by the ordinary Rules of the Common Law but that High Court of Parliament proceeds not by that Law but by a Law peculiar to that High Court which is called Lex Consuetudo Parliamenti and consists in the Customs Usages and Course of Parliament and therefore this Court nor no other inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament If this Court should take upon it to proceed in such cases it would justly be said of it as a thing very irregular Metiri se quemque suo modulo ac pede verum est Sir Rob. Cott. Abr. 20. R. 2. nu 14 15. Sir Tho. Haxey delivered a Bill to the Commons in Parliament for the honour and profit of the King and of all the Realm complaining of the outragious Expences of the Kings House and namely of Bishops and Ladies Here the Camb. Dr. I have before mention'd would take occasion again to complain of the sauciness of this Bill K. R. 2. was offended with the Commons for preferring this Bill to the King for it seems they had entertain'd this Information from a particular hand as was done in our Case from Dangerfield and they proceeded upon it K. R. 2. said it was an offence against his Dignity and Liberty and said he would be free therein And Sir John Bussey the Speaker to the Parliament as that Roll of Parliament calls him is charg'd to declare the Name of him who Exhibited that Bill By this it appears the King could not take notice of what was done in the Commons-House or deliver'd to them but by
his Treatise of the manner of Enacting Laws in Parliament Fol. 125. reports this Case of Thorp at large It is time now to come to higher Authorities that is to Resolutions of Parliament in this point And first the Resolution of the House of Commons in maintenance of their own Right or at least a claim of their Right I have it out of an Author that is very far from being a friend to the House of Commons and 't is a Clergy-man too I mean Dr. Heylin in the Life of Archbishop Laud Fol. 89. He reports that the House of Commons made a Protestation in 1621. against all Impeachments other than in the House for any thing there said or done Let me present you with the like claim made by the Lords which seems to run something in the form of an old Act of Parliament In Sir Rob. Cott. Abr. 11. R. 2. nu 7. In that Parliament all the Lords as well Spiritual as Temporal being present claimed their Liberties and Franchises viz. That all weighty matters in the same Parliament which should be afterwards moved touching the Peers of the Land ought to be determin'd judged and discussed by the Course of the Parliament and not by the Civil Law nor yet by the common Laws of the Land used in other more Courts of the Realm The which Claim and Liberties the King most willingly allow'd and granted thereto in full Parliament says that Roll. Now as I have before prov'd the Liberties and Franchises of the Parliament in the right of them are entire and due to both Houses for both make up the Parliament Mr. Seld. in his Title of Honour Fol. says That a thing granted in full Parliament signifies an Act of Parliament Now for an Act of Parliament full in the point and then I can go no higher It was in the Case of Richard Strode one of the Burgesses for Plympton in Devonshire in the Parliament of 4 H. 8. for agreeing with the Commons House in putting out Bills as it is reported there which seems to resemble the Printing or Publishing mention'd in our Case Those Bills so put out were against the Abuses of the Tinners who were a great and numerous Body of men who by these Bills took themselves to be scandalized and slandered After the Parliament was risen this Richard Strode for what he had so done in Parliament was presented and found guilty in the stannary-Stannary-Courts and condemn'd to forfeit 40. l. a moderate fine He was for this imprison'd in a Dungeon within a Castle and fed with Bread and Water When the Parliament met again he Petition'd the Parliament for remedy and that the Judgments had against him and the Executions might be made void which was done accordingly by Act of Parliament And it was further Enacted That all Suits Accusations Condemnations Executions Fines Amerciaments Punishments pass'd or had or thereafter to be pass'd or had upon the said Strode and to every other person that was in that Parliament thus far it is a private and particular Act but the reason of this and the Justice of it extends to all like Cases but then it goes farther Or that of any Parliament hereafter shall be for any Bill speaking reasoning or declaring of any matter concerning the Parliament to be communed or treated of these are very large and general words be utterly void and of none effect And it goes farther yet And that any person vexed or troubled or otherwise charged for any Cause as aforesaid shall have an Action of the Case against every person so vexing contrary to this Ordinance and recover treble damages and costs Here now is an Action given against one for what they shall do in a course of Justice But it is because it is suing in an inferior Court that has no jurisdiction in the matter This Act takes away all jurisdiction in such Parliament Cases from all other Courts I know that in the Case of Denzill Hollis afterwards the Lord Hollis Mr. Seld. and others 3 Car. I. the Judges being consulted upon some Questions propounded Res. That that Act of Strode's was a particular Act and extended to Strode only and no doubt it was a particular Act in a great part of it and in that part extended to Strode only But if the Judges meant that no part of that Act was a general Law then I must crave leave to say 1. That their opinion was extrajudicial it was delivered upon their being consulted with about Questions propounded to them and therefore hath not that weight And I must take the liberty to appeal to the very words of the Statute it self and to any man of reason and honesty to use his reason aright that shall read them and I must offer some reasons against their opinion and cite some good Authority in that point and then leave it to this Court to judge of it The words and persons and time mention'd in the latter part of that Act are general It speaks indeed first of Strode in particular but then it hath these words every other person It mentions that Parliament in particular but then it proceeds to speak of any Parliament that there-after shall be Then the things also are general that the Act extends to not onely to indemnifie Strode for what he had said or done in parliament but then the Indemnity extends to every other person for any Bill Speaking Reasoning or Declaring of any matter concerning the Parliament The words of the Royal Assent to this Bill are such as are constantly used only to general Acts viz. Le Roy veut whereas to a particular Act the Royal Answer is Soit droit fait al parties And this Act of 4 H. 8. is enrolled as general Acts use to be But a private or particular Act is always fil'd but never enroll'd for this latter distinction we shall find it in the Case 33 H. 6. fol. 17 18. for authority in this question Sir E. C. in his 4th Instit. fol. 19. holds this Act of 4 H. 8. in the latter part of it to be a general Act. It is indeed commonly said Boni Judicis est ampliare jurisdictionem But I take that to be better advice which was given by the Lord Chancellor Sir Francis Bacon to Mr. Justice Hutton upon the swearing him one of the Judges of the Court of Common-Pleas That he would take care to contain the jurisdiction of the Court within the ancient Mere-Stones without removing the mark I find but one Resolution in all our Books that I can meet with that seems to make against us in this point and maintains a jurisdiction in this Court for a Misdemeanor or Conspiracy suppos'd to be done by some particular Members of the House of Commons in the House in time of Parliament It is reported by Mr. Justice Croke in his Reports of the time of King Charles fol. 181. but it is more fully reported in a late Book entitled Memorials of the English
Affairs set out by a Learned Lawyer and the Son of a Judge and it is the Case that I lightly touch'd upon but now that of Mr. Hollis Selden c. The offence charg'd upon Mr. Denzill Hollis who was afterwards the Lord Hollis Mr. Selden Sir John Elliot Sir John Hobart and divers other Parliament-men was for a force used upon the then Speaker Sir John Finch afterwards Lord Keeper in keeping him in the Speaker's Chair against his will when he would have left it and pressing him to put a question which the King had forbidden him to put For this supposed offence after the Parliament was Dissolv'd these Parliament-men were first convened before the Council where they refus'd to answer the Charge it being for matters done in Parliament Then the Judges had Questions propounded to them to which they gave their resolution that for things done not in a Parliamentary way a Parliament-man may be punished after the Parliament is ended if he be not punished in Parliament otherwise as J. Croke said There would be a failure of Justice but that regularly he cannot be compell'd out of Parliament to answer things done in a Parliament in a Parliamentary course This Answer seems to be very oracular for it resolves that a Parliament-man shall not Answer for 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 But they refusing to answer at the Council-Board were committed close Prisoners to the Tower. After this Sir Robert Heath the King's Attorney preferr'd an Information in the Star-Chamber against them that was not proceeded in The Lord Keeper was under difficulties about it says the Author The Judges of the King's-Bench were to consult with the rest of the Judges in granting a Habeas Corpus for bailing the Prisoners The rest of the Judges would hear arguments so it was put off and delay'd as our Author reports it At last an Information was exhibited against them in the King's-Bench The Defendants pleaded to the jurisdiction of the Court their plea was over-rul'd and they refusing to plead over judgment was entred by nihil dicit and they fined and imprison'd Mr. J. Croke at the latter end of those Reports gives this further account of that Case that afterwards in the Parliament 17 Car. 1. It was Resolv'd by the House of Commons that those Parliament-men should have a recompence for their damages sustain'd for the services to the Commonwealth in the Parliament 3 Car. 1. If a Judge hath thought fit to report this it may be as fit for me to mention it I take that to be the first precedent or resolution given in any case for what was done in Parliament and it stands alone I have heard of none since that neither It seems to be directly against the provision made by it it is clearly within the Equity and Reason of it Strode's Act. I wish I could not say that even those times of 3 Car. 1. were not full of trouble It appears much by the difficulty the Judges seem'd to be at in the proceedings of that Case this detracts much from that veneration that otherwise is justly due to a Resolution so solemn as that of all the Judges The Lord Chancellor Bacon in his profound Book of the Advancement of Learning dislikes all Precedents that taste of the times and advises that Precedents should be deriv'd from good and moderate Times The only reason that I find given for that proceeding in the case of Denzill Hollis is that given by Mr. J. Croke viz. That otherwise there would be a failure of Justice This reason must be grounded either upon the Infrequenecy of Parliaments or upon an opinion that Parliaments will be partial in cases of their own Members As to the first of these the long intervals between Parliaments This under favour ought to be no reason especially to come from a Judges's mouth I have a great honour for the memory of that Reverend Judge who must needs know and ought to assert it That by the Law Parliaments ought to be very frequent and Judges ought to take part with the Law and to maintain it Before the Conquest as 't is untruly call'd by the Law Parliaments were to be held twice a year as appears by King Edgar's Laws c. 5. in Lamb. de priscis c. And the Mirror of Justice c. 1. Sect. 3. tells us that King Alfred ordain'd for a perpetual Usage that twice in the year and if need were oftner The Seniors or Earls should assemble themselves at London to speak their minds And 't is reckon'd among the Abusions as they are there term'd of the Common-Law That whereas Parliaments ought to be twice in the year for the salvation of the Souls of Trespassers and at London too that they are there but very seldom and at the pleasure of the King for Subsidies and Collections of treasure And by the Statute of 4 E. 3. c. 14. Parliaments ought to be once a year and oftner if need be I have heard a Civilian in the House of Commons give this construction to that short Act that the words If need be should referr to the Parliaments being once a year aswell as to the words and oftner and I never heard that any man was of that opinion but himself but I remember he himself laught when he spoke it but he was more laught at for that ridiculous exposition And should that sense be put upon it it would make the Law a very ridiculous thing indeed for then the short of it would be this That we should have a Parliament when there is need But to refute that fancy there is another Statute of the same King's time namely 36 E. 3. c. 10. which says that for redress of divers mischiefs and grievances which daily happen it s accorded that a Parliament shall be holden every year without any such restriction If need be And by the Act of 16 Car. 2. c. 1. These Acts are declared to be in force And farther it is Declared and Enacted That the holding of Parliaments shall not be discontinued above three years at the most Now how can any man say in Defiance of these Laws That there can be any long discontinuance of Parliaments His now Majesty has been pleased graciously to declare his Resolution often to meet his People in Parliaments and in the word of a King there is power Nay we have the King's Oath for it for he is sworn to observe the Law And eadem praesumitur esse mens Regis quae legis And it is an high presumption for any man to think or say otherwise For that other ground of that reason given by Mr. Justice Croke viz. That there would be a failure of Justice if