or Bills Contrariwise when any Answer is to be delivered by the Lord Keeper c. In passing of Bills Arc. Parl. 5. if the Not Contents be most then the Bill is dash't i. e. the Law is annihilated and goeth no further If the Contents be the most then the Clerk writeth underneath Soit baile aux Commons 3 Car. 1. 1626. Rash Coll. 365. Resolved upon the Question That the Priviledge of this House is that no Lord of Parliament the Parliament sitting or within the usual Time of Priviledges of Parliament is to be imprison'd or restrain'd without Sentence or Decree of the House unless it be for Treason or Felony or refusing to give Surety of the Peace Giving the Lye to a Peer is a Breach of Priviledge 2 Nalson 380. Ever since the Conquest the Arch-Bishops Hakewel 84. Vide Kelwey 184. Vide Lord Hollis's Letter Vide Lord Hollis's Remains Vid. contra Hunt's Argument for the Bishops Right c. Vid. Grand Question concerning Bishops Right per. totum and Bishops have no Title to have Voice and Place in Parliament but only in respect of their Temporal Baronies where they are present quousque perveniatur ad Diminutionem c. When a Question is had of the Attainder of any Peer Hakewel 84. Vid. contra Hunt ut suprà per tot Vid. Grand Question concerning Bishops Right c. per totum Selden of Judicature c. p. 150. or other in Parliament the Arch-Bishops and Bishops depart the Higher House and do make their Proxies for by the Decrees of the Church they may not be Judges of Life and Death 11 Rich. 2. Divers Lords and others being appealed of Treason and other Misdemeanors the Prelates absented themselves during the Trial having first made Protestation saving their Right to be present in Parliament * Vid. there the Protestation of the Bishops for ever Id. 151. The Protestation I think intends That they could not be present by reason of the Common Law and by reason of an Ordinance made at the Council at Westminster in 21 Hen. 2. by which all Clergy-men were forbidden agitare Judicium Sanguinis upon Pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the Common Law and by the Law of God All the Lords Spiritual and Temporal Selden's Judicature c. 39. 11 Rich. 2. claimed as their Liberty and Franchise that the great Matters moved in this Parliament and to be moved in other Parliaments in Time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the Course of the Parliament and not by the Civil Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament The Proceeding against a Peer in Parliament is not necessary Id. 53. It appears that the Lords cannot of themselves judge a Common Person for an Offence Id. 61. for he is no Peer according to that of 4 E. 3. Numb 26. 1 Rich. 2. Id. 123. The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committee was diligently examin'd before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn In Judgments on Delinquents in Parliament Id. 132. the Commons might accusare petere Judicium the King assentire and the Lords only did judicare The King's Assent ought to be to Capital Judgments Id. 141. Vid. id 144 147 148 154 158. and the Lords Temporal to be only Judges therein and not the Lords Spiritual but in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary Id. 136. yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments If a Peer be committed to Prison the Gentleman Vsher hath the Charge of him thither and the Serjeant attending on the Great Seal How Lords of Parliament shall be placed in the Parliament Vide Stat. 31 Hen. 8. c. 10 Vid. 4 Inst 362. Rot. Parl. 3 H. 6. n. 10. and other Assemblies and Conferences of Council A Peer of the Realm shall be tried in an Appeal by Knights c. and not by his Peers Arcana Parl. 70. because it is at the Suit of the Party Brook 142 153. Otherwise it is in an Indictment of Treason or Felony for that it is at the Suit of the King Id. 71. The Duke of Somerset in the Time of Ed. 6. was tried for Felony and Treason by his Peers upon an Indictment for it is the Suit of the King When a Lord of Parliament is tried by his Peers 1 Hen. 4.1 Id. 72. they shall not be sworn to say their Verdict but they shall give their Verdict upon their Honor and are not charged but upon their Honors A Lord of Parliament shall have Knights upon his Trial in every Action 27 Hen. 8. f. 27. A Lord of Parliament may be Outlawed for Murder 27 Hen. 8. f. 17. If a Lord of Parliament makes a Rescous 27 H. 8.27 a Capias shall be taken out against him if the Sheriff return the Rescous otherwise it is in Case of Debt A Capias ad Satisfaciendum does not lye against a Lord of Parliament 11 H. 4.15 27 Hen. 8.27 for the Law presumes that he has Assets An Attachment is not grantable by the Common Law Dyer 316. Statute Law Custom or Precedent against a Lord of Parliament and the Lord Cromwel by Order in the Parliament-Chamber was discharged of such Process In a Praemunire against a Lord of Parliament Arc. Parl. 98. he ought to appeear in his proper Person and not by Attorny unless he has a special Writ of Chancery CHAP. IV. Power of the House of Lords A Peer of the Realm being Indicted of Treason 4 Inst 23. or Felony or Misprision of Treason may be Arraigned thereof in Parliament a Lord Steward being appointed and then the Lords Spiritual shall make a Procurator for them and the Lords as Peers of the Realm during the Parliament are Judges whether the Offence be Treason c. that is supposed to be committed by any Peer of the Realm and not the Justices Many notable Judgments by the Lords Ibid. Vide Rush Coll. passim Vid. Nalson at the Prosecution of the Commons and in later Times Error serra sue in Parliament Vid. Crompton 18. b. Parliament poet prendre Recognizance Brook 137. Error Error shall be sued in Parliament and the Parliament may take Recognizance If a Judgment be given in the King's Bench 4 Inst 21. either upon a Writ of Error or otherwise the Party grieved may upon a Petition of Right made to the King in English or in French and his Answer thereto Fiat Justitia have a Writ of Error directed to the Chief Justice of the
King's Bench for removing of the Record in praesens Parliamentum c. When one sueth in Parliament to Reverse a Judgment in the King's Bench Id. 22. he sheweth in his Bill which he exhibiteth to the Parliament some Error or Errors whereupon he prayeth a Scire Facias The Proceeding upon the Writ of Error is only before the Lords in the Vpper House Id. Secundùm Legem Consuetudinem Parliamenti The Case between Smith and Busby in a Writ of Error 2 Nalson 716. decidable in no other Court but in Parliament If any Question be moved in Parliament for Priviledge 4 Inst 363. or Precedency of any Lord of Parliament it is to be decided by the Lords of Parliament in the House of Lords as all Priviledges and other Matters concerning the Lords House of Parliament are November 1641. Resolved by the House Nemine contradicente 2 Nalson 625. That it belongs to the House of Peers by the ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament in Time of Parliament in any Cause that shall be brought before them Julij 12 2 Nalson 381. 1641. An Order of the Lords for Relief of a Feme-Covert and her Children against a Husband refusing to Cohabit The Sentence pronounced by the Lords upon Sir Giles Mompesson Rushw Col. 27 28. and Sir Fancis Michel for Projectors Upon Complaints and Accusations of the Commons Selden's Judicature c 6 7. the Lords may proceed in Judgment against the Delinquents of what Degree soever and what Nature soever the Offence be For where the Commons complain the Lords do not assume to themselves Trial at Common Law Neither do the Lords at the Trial of a Common Impeachment by the Commons decedere de June suo for the Commons are then instead of a Jury And the Parties Answer and Examination of Witnesses are to be in their Presence or they to have Copies thereof and the Judgment is not to be given but upon their Demand which is instead of a Verdict so the Lords do only judge not try the Delinquent 28 Hen. 6. Tho' the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason Id. 98. yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party Accused whether Lord or Commoner answers as a Freeman The Lord within his Place Ibid. the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find Cause to commit him till he find Sureties to attend c. lest he should fly Prout Jo. Cavendish upon the Lord Chancellor's demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 Rich. 2. and before Judgment In Cases of Misdemeanors only Id. 105. the Party accused was never deny'd Counsel If the Commons do only complain Id. 163. and do neither impeach the Party in Writing nor by Word of Mouth in open House nor demand Trial to be in their Presence in these Cases it is in the Election of the Lords whether the Commons shall be present or not In Complaints of Extortion Id. 173. and Oppression the Lords awarded Satisfaction to the Parties wronged which sometime was certain sometime general but alway secundùm non ultra Legem It appeareth plainly by many Precedents Id 176 177. That all Judgments for Life and Death are to be render'd by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House tho' he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's Place and all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's Place In Case of Recovery of Damages Id. 187. or Restitution the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other inferior Court at the Common Law But the Lords in Parliament may direct how it shall be levied The Judges who are but Assistants to the Vpper House have leave from the Lord Chancellor or Keeper to sit covered in the House Sir Simon d'Ewes Jour 527. Col. 2. but are alway uncovered at a Committee 3 Car. 1. The Sentence of the Lords Spiritual and Temporal Petyt 's Miscel Parliament 212 213. pronounced by the Lord Keeper against Ensign Henry Reynde for ignominious Speeches uttered by him against the Lord Say and Seal and for his Contempt of the High Court of Parliament was thus 1. That he never bear Arms hereafter but be accounted unworthy to be a Soldier 2. To be imprisoned during Pleasure 3. To stand under the Pillory with Papers on his Head shewing his Offence at Cheapside London and at Banbury 4. To be fined at 200 l. to the King 5 To ask Forgiveness here of all the Lords of Parliament in general and of the Lord Say and his Son both here and at Banbury The Court of Star-Chamber ordered by the Lords to put the said Sentence in Execution Id. 213. out of Time of Parliament CHAP. V. House of Commons THE House of Commons was originally Sir R. Atkyns Argument c. p. 13. and from the first Constitution of the Nation the Representative of one of the Three Estates of the Realm and a part of the Parliament It is affirmed by Mr. Lambard Lambard 's Archeion 257 258. That Burgesses were chosen to the Parliament before the Conquest The ancient Towns call'd Boroughs Littleton Sect. 164. are the most ancient Towns that are in England for the Towns that now are Cities or Counties in old time were Boroughs and call'd Boroughs for that of such old Towns came the Burgesses to the Parliaments Knights of the Shire to serve in Parliament Sir Rob. Atkyns 18. and the paying Wages to them for their Service has been Time out of Mind and did not begin 49 Hen. 3. for that is within Time of Memory in a Legal Sense The House of Commons Id. 34. as a Member of the High Court of Parliament have been as ancient as the Nation it self and may in the Sense of Julius Caesar be accounted among the Aborigenes and that they have had a perpetual Being to speak in the Language of the Law a Tempore cujus Contraria memoria Hominum non existit and that they are therefore capable by Law together with the rest of the Three Estates in Parliament to prescribe and claim a share in all Parliamentary Powers and Priviledges I do not mean separately but in conjunction with those other Estates which they could not otherwise legally have done Petyt's Preface to the ancient Rights of the Commons c. p. 3. if their Original and
sont come Judgments Et si le Parliament mesme erre Fincht's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 l. 2. c. 1. f. 21. b. 22. a come il poet ceo ne poet estre reverse en ascun Lieu forsque en le Parliament Which because it is omitted as several other things are in the Book translated into English I will thus give it the Reader that does not understand French The Parliament hath Absolute Power in all Cases as to make Laws to adjudge Matters in Law to try men upon their Lives to reverse Errors in the King's Bench especially where there is any Common Mischief which the ordinary Course of the Law hath not any means to remedy in such Case this is the proper Court And all things which they do are as Judgments And if the Parliament it self errs as it may that cannot be reversed in any place but in Parliament CHAP. III. House of Lords THere certainly cannot in the whole World be seen a more Illustrious Court 2 Nalson 366. than this High and Honorable Assembly of Peers in Parliament nor any Thing of greater Benefit and Advantage to the Subjects of this Monarchy No Lord of Parliament can sit there Sir Simon d'Ewes Jour 11. Col. 1. till he be full One and twenty years unless by special Grace of the Prince and that very rarely unless they be near upon the Age of Twenty years at least A Bishop elect may sit in Parliament Ibid. as a Lord thereof If the King by his Writ calleth any Knight or Esquire to be a Lord of the Parliament 4 Inst 44. he cannot refuse to serve the King there in Communi illo Consilio for the Good of his Country It lies in the Favour of the Prince to make Heirs of Earldoms Members of the Vpper House Sir Simon d'Ewes Journal 〈◊〉 Col. 2. by Summoning them thither by Writ but then they take not their Place there as the Sons of Earls but according to the Antiquity of their Fathers Baronies The Arch-Bishop of Canterbury is the first Peer of the Realm Id. 140. Col. 1. The Earl-Marshals Place in Parliament is betwixt the Lord Chamberlain Id. 535. Col. 2. and the Lord Steward No man ought to sit in that High Court of Parliament 4 Inst 45. but he that hath Right to sit there If a Lord depart from Parliament without licence Id. 44. it is an Offence done out of the Parliament and is finable by the Law Any Lord of the Parliament Id. 12. by License of the King upon just Cause to be absent may make a Proxy 43 Eliz. 1601. Towns Coll. 135. Agreed by the Lords That the ancient Course of the House is Vide Sir Simon d'Ewes Journal 605. that the Excuses of such Lords as shou'd happen to be absent from the House upon reasonable Occasions ought to be done by some of the Peers and not by other Information All the Priviledges which do belong to those of the Commons House of Parliament Hakewell 82. à fortiori do appertain to all the Lords of the Vpper House for their Persons are not only free from Arrests during the Parliament but during their Lives nevertheless the original Cause is by reason they have Place and Voice in Parliament And this is manifest by express Authorities grounded upon excellent Reasons in the Books of Law A Proxy is no more than the constituting of some one or more by an absent Lord Sir Simon d'Ewes Journals 5. Col. 2. to give his Voice in the Vpper House when any difference of Opinion and Division of the House shall happen for otherwise if no such Division fall out it never cometh to be question'd or known to whom such Proxies are directed nor is there any the least use of them save only to shew prove and continue the Right which the Lords of the Vpper House have both to be Summon'd and to give their Voices in the same House either in their Persons or by their Proxies As many Proxies as any Peer hath Ibid. Col. 2. so many Voices he hath beside his own and if there be two or three Proxies constituted by one absent Lord as is frequent then alway the first named in the same is to give the Voice if he be present and if absent then the second sic de reliquis It is plain by the ancient Treatise Id. 6. Col. 1. Modus tenendi Parliamentum that if a Peer neither came to the Parliament nor sent a Proxy upon his Writ of Summons he forfeited 100 l. if an Earl 100 Marks if a Baron c. Towns Coll. 4.39 40 42. It seldom happeneth that any Bishop doth nominate fewer than three or two Proctors nor any Temporal Lord more than one John Arch-Bishop of Canterbury had this Parliament five Proxies Id. 34. 1 Eliz. 4 Inst 12 13. A Lord of Parliament by License obtained of the Queen to be absent made a Proxy to three Lords of Parliament one of which gave Consent to a Bill the other two said Not Content And it was by order of the Lords debated among the Judges and Civilians Attendants and conceiv'd by them that this was no Voice and the Opinion was affirmed by all the Lords That it was no Voice 2 Car. 1. 1626. Rush Coll. 269. The House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies or more to be numbred in any Cause voted In the Lords House Arc. Parl. 12. Smith's Common-wealth 87. the Lords give their Voices from the Puisne Lord seriatìm by the Word Content or Not Content 4 Inst 34. First for himself and then severally for so many as he hath Letters and Proxies A Bill had three Readings in one Forenoon Towns Coll. 11. in the House of Lords Where a Committee of Lords is selected out to meet with another Committee of the House of Commons Towns Coll. 9. neither the Judges being but Assistants nor the Queens Council being but Attendants of and upon the House were ever nominated as Joynt-Committees with the Lords But when the Lords among themselves do appoint a Committee to consider of some ordinary Bill especially if it concern Matter of Law it hath been anciently used and may still without Prejudice to the Honour of the House that the King 's learned Council but especially the Judges may be nominated as Committees alone or as Joynt-Committees with the Lords January 19. 1597. 39 Eliz. It was resolved Towns Coll. 94. Sir Simon d'Ewes Jour That the Order and Usage of this House was and is that when any Bills or Messages are brought from the Lower House to be preferr'd to the Vpper House the Lord Keeper and the rest of the Lords are to rise from their Places and to go down to the Bar there to meet such as come from the Lower House and from them to receive in that Place their Messages
he should be imprisoned during his Life 6. Not to approach within twelve miles of the Courts of the King or Prince not at the King 's High Court usually held at Westminster 7. That the King should have the profits of his Land for Life and all his Goods and Chattels and should be fined at 10000 l. 8. He was also disabled to hold or receive any Office under the King or for the Common-wealth 9. And lastly Ever to be held an infamous Person 19 Jac. 1. Sir John Bennet Id. 92. for receiving Bribes c. Ordered by the Commons House to be safely kept by the Sheriffs of London to be put out and no longer continue a Member of the House and a Warrant for a Writ for a new choice In the same Parliament Id. 93. Sir Robert Floyd for being a Projector of a Patent for a Monopoly resolved unâ voce That he was a Person unworthy to continue a Member of this House and adjudged presently to be put out 3 Car. 1. Id. 94 95. Mr. John Barbour Recorder of Wells for subscribing a Warrant for the Quartering of Soldiers suspended the House and sequestred till the Pleasure of the House be known 13 Febr. 1606. Id. 77 78 79. Upon a Report made in the House of the Remembrances formerly set down of the Particulars of a Conference the Speaker offering to read the Paper and being interrupted by some Motions and Disputes Whether they shou'd be read one by one and so debated or all at once in that Difference one of the Knights for Buckinghamshire with a loud Voice not standing up bare-headed as the Order is pressed to have them read The House observing his earnestness and manner of Sitting and Calling for Order's sake urged him to stand up and speak He stood up and pretending to offer some Reasons fell into an Invective against the Scots much distasting the House yet out of a common Care to expedite the weighty Business then in hand his Speech was neglected without Tax or Censure But on Monday following it was remembred and his words of Offence recited in particular the Gentleman being absent was sent for by the Serjeant The Serjeant having brought the Offender it was moved he might be heard at the Bar which was assented to and after he had spoken he was commanded to retire and not long after was call'd in again to the Bar where kneeling Mr. Speaker acquainted him Since the Offence was so apparently heinous the House did not hold it fit that any Particulars shou'd be named or to give any Reason of their Judgment but the Order was That he shou'd be carry'd to the Prison of the Tower and there remain during the Pleasure of the House and that he should be dismiss't from his Place of Knight of the Shire for Bucks and a new Writ to issue for a new Choice 15 Febr. 18 Jac. 1. Id. 79. A Bill being read the second Time for the better Observation of the Sabbath one of the Members made an Invective against it and something which seem'd to reflect on a Member of the House who presented it as savouring of a Puritan and factious Spirit Exceptions were taken at the Words After he had explained himself he was ordered to withdraw out of the House and Debate being had he was call'd to the Bar and upon his Knees he received the Judgment of the House pronounced by the Speaker That he shou'd be discharged from the Service of the House with an Intimation that his Judgment was very merciful for that the House might for so exorbitant an Offence have imprison'd and further punish'd him 3 Apr. 1604. Id. 80. In a Debate upon a Bill a Member of the House utter'd some Speeches highly distasting the House but no Notice was taken of it till the Bill was committed and then the Words being repeated he was call'd to the Bar where he made his Excuse and was pardon'd 26 Apr. 1641. Ibid. Great Offence was taken by the House at Words spoken by Mr. J. H. He was first heard to explain himself and then commanded to withdraw and was call'd to the Bar and suspended the House during that Session of Parliament 27 Maij 1641. Ibid. A Paper was brought in containing words spoken by Mr. Taylor a Member of the House concerning the Passing the Bill of Attainder of the Earl of Strafford who being heard to explain himself and then commanded to withdraw after some Debate in the House it was resolved That he shou'd be expell'd the House be made uncapable of ever being a Member of this House and shou'd forthwith be committed Prisoner to the Tower there to remain during the Pleasure of the House and to make an acknowledgment of his Offence both at the Bar and at Windsor publickly And he was call'd to the Bar and there kneeling Mr. Speaker pronounced the Sentence accordingly 13 Maij 12 Jac. 1. Id. 82. Complaint was made that some Indignities was offer'd to Sir R. Owen when he was in the Chair at the Committee about the Bill for the due Observation of the Sabbath Day by Sir W. H. who told him He was Partial and by Sir R. K. who took him by the hand and told him He would pull him out of the Chair that he should put no more Tricks upon the House Sir W. H. being present made an Acknowledgment of his Error which upon the Question was taken for a good Satisfaction Sir R. K. was ordered by the House to Acknowledge his Error at the Bar. 19 Jac. 1. Ibid. Some Speeches passing in the House privately between two of the Members and some Offence taken which seems was not intended to be given one of them in going down the Parliament-stairs struck the other who thereupon catch'd at a Sword in his Mans hand to strike with it Upon Complaint made of it to the House they were both order'd to attend the House being come he who gave the Blow was call'd in and standing not at the Bar but by the Bar was examin'd by Mr. Speaker confessed the giving the Blow insisted on the Provocation and withdrew The other was also call'd in to relate the Truth After he had made the Relation and was likewise withdrawn and Testimony given by a Member of the House who heard the words the House proceeded to Sentence against Mr. C. who struck the blow He being brought to the Bar there on his knees he received Judgment which was pronounced by the Speaker That he should be committed to the Tower during the Pleasure of the House 1626. Nalson's Introduction 61. Mr. Moor sent to the Tower for speaking out of Season Novemb. 1641. Ordered That Mr. Fitz-Williams Conisby shall be expell'd this House 2 Nalson 513. he being a Monopolist and that the Speaker issue out a Warrant to the Clerk of the Crown for a Writ for a new Election for a Member to serve for the County of Hertford in his Place Mr. Hugh
Serjeant at Arms was presently sent to Newgate to bring him to the House sedente Curiâ and being brought to the Bar with his Keeper was discharged by Order of the House from his said Keeper and from his Imprisonment 1 Julij 1607. Memorials 99. John Pasmore the Marshal's man being sent for and brought to the Bar for arresting John Jessop Waterman Servant to Sir Henry Nevil a Member of the House he deny'd that he knew he was Sir Henry's Servant until afterward notwithstanding he took an Assumpsit from him to answer the Action The House thought fit to commit him to the Serjeant till the Houses Pleasure were further known and till he had discharged the Assumpsit and paid the Fees 17 Junij 1609. Ibid. Upon a Report from the Committee for Priviledges that a menial Servant of Sir Robert Wroth was arrested eight days before this Session the Serjeant was sent for the Prisoner and the Serjeant that made the Arrest one King who follow'd it and Fisher at whose Suit he was arrested 4 Junij 19 Jac. 1. Id. 100. Johnson a Servant to Sir James Whitlock a Member of the Commons Housel was arrested upon an Execution by Moor and Lock who being told that Sir James Whitlock was a Parliament man Fulk one of the Prosecutors said He had known greater mens men than Sir James Whitlock taken from their Masters Heels in Parliament time This appearing Lock and Moor were call'd in to the Bar and by the Judgment of the House were sentenced First That at the Bar they shou'd ask Forgiveness of the House and of Sir James Whitlock Petyt 's Miscel Parliament 118. on their knees Secondly That they shou'd both ride upon one Horse bare-back'd back to back from Westminster to the Exchange with Papers on their Breasts and this Inscription For arresting a Servant of a Member of the Commons House of Parliament and this to be presently done sedente Curiâ which Judgment was pronounced by Mr. Speaker against them at the Bar upon their Knees 28 Apr. 22 Jac. 1. Memorials 100. A Warrant was order'd to be issued by the Speaker for a Writ of Priviledge to bring up Andrew Bates Servant to Mr. Richard Godfrey of the House in Execution with the Sheriff of Kent at the Suit of one Hunt This Priviledge doth take place by Force of the Election and that before the Return be made as appears in the Case following 19 Nov. 1601. Id. 107 108. Vide Sir S. d'Ewes Jour 642. Col. 2. 643. Col. 1. Vid. Petyts Miscell Parl. 119. Upon Information to the House that one Roger Boston Servant to Lanckton Baron of Walton who upon credible Report of divers Members of the House was affirmed to be chosen a Burgess for the Borough of Newton in Lancashire but not yet return'd by the Clerk of the Crown had been during that Session of Parliament arrested in London at the Suit of one Muscle the said Muscle together with the Officer that made the Arrest were sent for by the Serjeant and brought to the Bar and there charged by Mr. Speaker in the Name of the whole House with their Offence herein and having been heard Boston was order'd to have Priviledge and to be discharged of his Arrest and Imprisonment and the Offenders for three days committed to the Serjeant and order'd to pay such Charges to Beston as the Speaker shall set down and their Fees 6 Martij 1586. Memorials p. 108 109. Sir Simon d'Ewes Jour 410. Col. 1.414 Col. 2. This day William White brought to the Bar for arresting Mr. Martin a Member of the House made Answer That the Arrest was made above fourteen days before the beginning of the Parliament the House thereupon appointed a Committee to search the Precedents And March 11. the Committee made their report of Mr. Martin a Member of this House arrested upon mean Process by White above twenty days before the beginning of this Parliament holden by Prorogation mistaken for Adjournment and in respect that the House was divided about it in Opinion Mr. Speaker with the consent of the House the sooner to grow to some certainty of the Judgment of the House in this Cause moved these Questions to the House viz. First Whether they would limit a time certain or a reasonable time to any Member of the House for his Priviledge The House answered a convenient time Secondly Whether Mr. Martin was arrested within this reasonable time The House answered Tea Thirdly If White should be punished for arresting Martin The House answer'd No because the arrest was twenty days before the beginning of the Parliament and unknown to him that would be taken for reasonable time But the principal cause why Martin had his Priviledge was for that White the last Session mistaken for Meeting of Parliament arrested Mr. Martin and then knowing him to return'd a Burgess for this House discharged his Arrest And then afterwards Mr. Martin again returning out of his Country to London to serve in this House Mr. White did again arrest him and therefore this House took in evil part against him his second Arrest and thereupon judged that Martin should be discharged of his second Arrest out of the Fleet by the said Mr. White 12 Martij 1606 Complaint was made by Mr. James a Burgess of Parliament Id. 102. That his Horse standing at his Inn was taken by the Post-masters Servant both the Post-master and his Servant were sent for and brought to the Bar. Moreton the Post-master appearing to be ignorant of what his Servant had done and disavowing it was by order of the House discharged but upon the Testimony of a Witness at the Bar that he told the Servant when he took the Horse that a Member of Parliament was owner of it the Servant was committed In Dec. 1606. Thomas Finch Memorials p. 101 102. a Servant to Sir Nicholas Sandys one of the Burgesses for Quinborough was Arrested during the Adjournment which being conceived to be a great Contempt to the Priviledge of the House an Habeas Corpus was awarded to bring him to the House and he was accordingly brought and also one Knight who procured the Arrest and Harrison the Yeoman The Excuse was that Finch was an Attorney at Law but it being avow'd by Sir Nicholas Sandys That Finch lay in his House solicited his Causes and received Wages from him And it being insisted on that all menial and necessary Servants are to be priviledged and instance given of a Precedent of the Baron of Waltons Solicitor and Huddleston's Solicitor in the time of Queen Elizabeth Upon the Question Finch was priviledged and deliver'd according to former Precedents During the Adjournment Ibid. 102. a Suit was prosecuted in the Court of Wards against Nicholas Pots Esq and Francis Wethered Gent. Committees of a Ward which concerned Mr. Nicholas Davys Servant to the then Speaker as Assignee of the Ward The Speaker writ a Letter to the Court to make known That he
the Rights and Priviledges of Parliament sit there any longer without a full Vindication of so high a Breach of Priviledge and a sufficient Guard wherein they might confide The Lords cannot proceed against a Commoner Selden 's Jud. p. 84. but upon a Complaint of the Commons APPENDIX The Report of a Case happening in Parliament in the first year of K. James the First which was the Case of Sir Francis Goodwyn and Sir John Fortescue for the Knights Place in Parliament for the County of Bucks Translated out of the French IN this Case after that Sir Francis Goodwyn was elected Knight with one Sir William Fleetwood for the said County which Election was freely made for him in the County and Sir John Fortescue refused notwithstanding that the Gentlemen of the best Rank put him up The said Sir John Fortescue complained to the King and Council Table he being one of them to wit one of the Privy Council that he had been injuriously dealt with in that Election which does not appear to be true But to exclude Sir Francis Goodwyn from being one of the Parliament it was objected against him that he was Outlawed in Debt which was true scilicet He was Outlawed for 60 l. 31th of Queen Elizabeth at the Suit of one Johnson which Debt was paid and also the 39th of Eliz. at the Suit of one Hacker for 16 l. which Debt was also paid and that notwithstanding the King by the Advice of his Councel at Law and by the Advice of his Judges took Cognisance of these Outlawries and directed another Writ to the Sheriff of the said County to elect another Knight in the place of the said Sir Francis Goodwyn which Writ bore Date before the Return of the former And this Writ recites That because the said Sir Francis was Outlawed prout Domino Regi constabat de Recordo and for other good Considerations which were well cognisant to the King and because he was Inidonious for the Business of the Parliament therefore the King commanded him to elect one other Knight in his room which Writ was executed accordingly and Sir John Fortescue elected And at the day to wit the first day of the Parliament both Writs were return'd the first with the Indenture sealed between the Sheriff and the Freeholders of Bucks in which Sir Francis Goodwyn and Sir William Fleetwood were elected Knights for the Parliament and also the Sheriff returned upon the Dorse of the Writ that the said Sir Francis was Outlawed in two several Outlawries and therefore was not a meet Person to be a Member of the Parliament House The second Writ was returned with an Indenture only in which it was recited That Sir John Fortescue by reason of the second Writ was elected Knight Both these Returns were brought the third sitting of the Parliament to the Parliament House by Sir George Copping being Clerk of the Crown And after that the Writs and Returns of them were read it was debated in Parliament Whether Sir Francis Goodwyn should be received as Knight for the Parliament or Sir John Fortescue And the Court of Parliament after a long Debate thereupon gave Judgment That Sir Francis Goodwyn should be received and their Reasons were these First Because they took the Law to be that an Outlawry in Personal Actions was no Cause to Disable any Person from being a Member of Parliament and it was said That this was Ruled in Parliament 35th of Queen Elizabeth in the Parliament House in a Case for one Fitz-Herbert Another President was 39 H. 6. Secondly The Pardons of the 39th of Queen Eliz. and 43 Eliz. had pardoned those Outlawries and therefore as they said he was a Man able against all the World but against the Party Creditor and against him he was not But in this Case the Parties were paid Also Thirdly It was said that Sir Francis Goodwyn was not Outlawed because no Proclamation was issued forth to the County of Bucks where he was Commorant and Resiant And therefore the Outlawry being in the Hustings in London and Sir Francis Goodwyn being Commoran in Bucks the Outlawry no Proclamation issuing to the County of Buks was void by the Statute of the 31th of the Queen which in such Cases makes the Outlawries void Fourthly It was said that the Outlawries were 1. Against Francis Goodwyn Esq 2. Against Francis Goodwyn Gent. and 3. The Return was of Francis Goodwyn Kt. Et quomodo constat that those Outlawries were against the said Sir Francis Goodwyn for these Reasons also they Resolved that the Outlawries were not any matter against Sir Francis Goodwyn to disenable him to be a Knight for the County of Bucks Fifthly It was said That by the Statute of 7 H. 4. which prescribes the manner of the Election of Knights and Burgesses it is Enacted That the Election shall be by Indenture between the Sheriff and the Freeholders c. that the Indenture shall be the Return of the Sheriff It was also said That the Presidents do warrant this Judgment videlicet 1. One President of the 39 H. 6. where Person Outlawed was adjudged a sufficient Member of Parliament Another 1 Eliz. and ot that time one Gargrave who was a man learned in the Law was Speaker and of the Queens Council 2. Another was the Case of one Fludd in the 23th of the Queen who being Outlaived was â—â—â—udged that he should be Priviledged by Parliament and at that time the Lord Chief Justice Popham was Speaer And 3. In the 35th of Elizabeth there were three Presidents scil one of Fitzherbert another of one Killegrew being Outlawed in 52 Outlawries and the third of Sir Walter Harecourt being outlawed in eighteen Outlawries But after this Sentence and Judgment of the Parliament the King's Highness was displeased with it because the second Writ emanavit by his Assent and by the Advice of his Council And therefore it was moved to the Judges in the Vpper House Whether a Person Outlawed could be a Member of Parliament who gave their Opinions that he could not And they all except Williams agreed that the Pardon without a Scire facias did not help him but that he was Outlawed to that purpose as if no Pardon had been granted And upon this the Lords sent to the Lower House Desiring a Conference with them concerning this Matter which Conference the Lower House after some deliberation denied for these Reasons 1. Because they had given their Judgment before and therefore they could not have Conference de re Judicata as in like manner they did 27 Queen Eliz. upon a Bill which came from the Lords and was rejected by Sentence upon the first Reading Sir Walter Mildmay being then of the Privy Council and of the House 2. Because they ought not to give any Accompt of their Actions to any other Person but to the King himself This Answer the Lords did ill resent and therefore refused Conference in other Matters concerning Wards and Respite of Homages and